Mesothelioma Deposition

One of the worlds foremost doctors on asbestos exposure and mesothleiioma testifies about mesothelioma in carpenters.







1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: MIDDLESEX COUNTY
2 ASBESTOS LITIGATION
CIVIL ACTION
3

4
------------------------------- : DOCKET NO.
5 sam plaintiff :
6 :
Plaintiffs, :
7 : DEPOSITION UPON
-against- : ORAL EXAMINATION
8 : OF
GEORGIA PACIFIC CORPORATION, : STEPHEN MARKOWITZ,
9 UNION CARBIDE CORP., plaintiff DOE 1 : M.D.
through plaintiff DOE 75 :
10 (fictitious), :
:
11 Defendants. :
:
12 ------------------------------- :
anthony plaintiff and , : DOCKET NO.
:
14 Plaintiffs, :
:
15 -against- :
:
16 AMCHEM PRODUCTS, INC., et al., :
:
17 Defendants. :
:
18 -------------------------------

19

20
2




1 A P P E A R A N C E S:

2 FOR THE PLAINTIFF:
(plaintiff and plaintiff)
3
COHEN, PLACITELLA & ROTH, P.C.
4 BY: PETER A. MUHIC, ESQ.
BY TELEPHONE: CHRISTOPHER M. PLACITELLA, ESQ.
5 115 Maple Avenue
Red Bank, New Jersey 07701
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1 I N D E X

2

3 WITNESS: STEPHEN MARKOWITZ, M.D.

4 EXAMINATION PAGE,

5 MR. dopey defense lawyer 8, 240

6
10

11

12
EXHIBITS:
13 DEFENDANTS
NUMBER DESCRIPTION PAGE
14
A Affidavit of Jerrold L.
15 Abraham, M.D. 7

16 B Report of Steven Markowitz,
Dated February 26, 2008 7
17
C Certification of plaintiff plaintiff 7
18
D Second Amended Complaint 7
19
E Report of Dr. Steven Markowitz,
20 M.D., dated November 20, 2006 7

21 F Affirmation of Steven Markowitz
M.D. 7
22
G World Health Organization,
23 Environmental Health Criteria
203, Chrysotile Asbestos,
24 Geneva 1998 161

25



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1 EXHIBITS:
DEFENDANTS
2 NUMBER DESCRIPTION PAGE

3 H The Influence of Fiber Length
dated March 17, 2003 165
4
I ACGIH 2001 TLV for Asbestos,
5 Reference J., Jerry Lauderdale,
10/26/07 176
6
J Report on the Peer
7 Consultation Workshop to
Discuss a Proposed Protocol
8 to Assess Asbestos-Related
Risk, Eastern Research Group,
9 Inc., Final Report May 20, 2003 176

10 K Videotape Deposition, Oral
Examination of plaintiff plaintiff 197
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12

13 INFORMATION TO BE SUPPLIED:

14 PAGE LINE

15 88-2

16 123-15

17

18

19 MOVE TO STRIKE:

20 PAGE LINE

21 None

22

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24

25



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1 STEVEN MARKOWITZ, M.D.,

2 with offices at 163-03 Horace

3 Harding Expressway, 4th Floor,

4 Flushing, New York 11365,

5 Having first been duly sworn, was

6 examined and testified as follows:

7

8 EXAMINATION

9

10 (Exhibits A through F were

11 marked for identification.)

12 MR. dopey defense lawyer: We are about to

13 commence the deposition of Dr. Steven

14 Markowitz, in two cases, one is plaintiff

15 plaintiff and another is plaintiff plaintiff.

16

17 BY MR. dopey defense lawyer:

18 Q. Can you tell us your name, sir?

19 A. Steven Markowitz.

20 Q. Your occupation or profession?

21 A. Physician.

22 Q. I understand, Doctor, that you have not

23 brought a CV with you, but a CV will be made available at

24 a later date.

25 Let me ask you some questions about your



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1 background.

2 Medical doctor?

3 A. Medical doctor, yes.

4 Q. When did you complete your medical

5 training?

6 A. I graduated medical school in 1981 and

7 finished my training in 1986.

8 Q. Do you have a specialty?

9 A. I have two specialties. One is internal

10 medicine and the other is preventative medicine with a

11 subspecialty in occupational and environmental medicine.

12 Q. Do you practice, or are you a professor

13 or both?

14 A. I am a professor.

15 MR. PLACITELLA: Excuse me,

16 all this stuff was covered in a prior

17 transcript. You are supposed to ask

18 him solely about this case.

19 MR. dopey defense lawyer: Is that an

20 objection, Chris?

21 MR. PLACITELLA: Its an

22 objection. It is contrary to what the

23 special master said you should be

24 covering in this deposition. You are

25 not supposed to be covering his



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1 background from both the prior

2 transcripts.

3 MR. MUHIC: Move along to the

4 substance.

5 Q. What do you teach?

6 A. I primarily do research. I dont teach

7 any courses per say.

8 Q. What do you do research on?

9 A. Issues involving environmental and

10 occupational health.

11 Q. Have you done any research dedicated to

12 or involving asbestos as an environmental hazard?

13 MR. MUHIC: You have to move

14 on to the specifics in the case. Its

15 been covered in his depositions.

16 Youve got his prior transcripts.

17 MR. dopey defense lawyer: The only

18 transcript I received was --

19 MR. MUHIC: We can give you

20 additional transcripts if you need,

21 but you know all the general

22 background information has been

23 covered.

24 MR. dopey defense lawyer: The only

25 transcript I received was the case



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1 involving the dental liner. I dont

2 remember a question that said what

3 research have you done pertaining to

4 asbestos in that deposition.

5 MR. MUHIC: I am sure he

6 covered in that deposition his

7 background, his knowledge, his

8 education and his training.

9 Obviously, in that case, we are

10 dealing with mesothelioma also that

11 was caused by --

12 MR. dopey defense lawyer: No, sir.

13 MS. Mrs dopey defense lawyer: No.

14 MR. dopey defense lawyer: No, sir.

15 In that deposition, he did not

16 cover what he did as a professor.

17 That is why I asked that

18 question.

19 MS. Mrs dopey defense lawyer: He did not. It

20 doesnt even have his background.

21 MR. dopey defense lawyer: This is Justin

22 dopey defense lawyer from Marks ONeill. We were

23 all at the special masters

24 conference. Chris had said he would

25 provide us with transcripts. We got



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1 it late last night. The transcript

2 had nothing to do with an asbestos

3 case. So, thats the transcript we

4 have and if it wasnt covered, we

5 can ask --

6 MR. MUHIC: It had nothing to

7 do with asbestos?

8 MR. dopey defense lawyer: It was a

9 dental liner, right?

10 MR. dopey defense lawyer: It had to do with

11 asbestos.

12 MS. Mrs dopey defense lawyer: Asbestos dental

13 liner, but --

14 MR. dopey defense lawyer: I am sorry.

15 MS. Mrs dopey defense lawyer: -- his history

16 wasnt covered.

17 MR. dopey defense lawyer: Right.

18 The discussion whether he did

19 any research with regards to asbestos

20 or taught any classes with regards to

21 asbestos, none of that was explored in

22 the transcript that we were provided,

23 so we have the right to ask questions.

24 If Chris wants to provide us with that

25 transcript, then we wouldnt be asking



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1 the questions today.

2 MR. PLACITELLA: Steve Weiner

3 said he had multiple transcripts of

4 Markowitz which he was going to make

5 available to defense counsel. Thats

6 what he told the special master at the

7 conference, so just keep moving.

8 MR. dopey defense lawyer: Actually, it

9 was Ron Sussex at the conference, not

10 Steve Weiner, and Ron --

11 MR. PLACITELLA: Well, Ron --

12 MR. dopey defense lawyer: And Ron did

13 not say that Chris. Steve or Ron,

14 both arent here, and didnt send

15 anything. It was your responsibility,

16 as far as the special master goes, to

17 get those transcripts.

18 MR. PLACITELLA: Okay.

19 Peter, let him go for a while

20 and then we will make a phone call.

21 MR. dopey defense lawyer: Okay.

22 Q. I think we have come to the point where

23 you can answer the question.

24 As a professor or in doing research,

25 have you done any research yourself that pertains to



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1 exposure to asbestos or asbestos as an environmental

2 pollutant?

3 A. Yes.

4 Q. Can you identify the research that you

5 have done?

6 A. Sure.

7 In the 80s and 1990s, I did research on

8 a comprehensive look at occupational disease in New York

9 State and the United States, and we covered in that the

10 diseases produced by asbestos.

11 In the late 1980s, I performed a study

12 on veteran firefighters in New York City looking at

13 non-malignant respiratory disease related to asbestos

14 exposure among those firefighters.

15 In the 1990s, published an article on

16 the prognosis of death from asbestosis in a large group

17 of insulators that was assembled by Dr. Selikoff at Mount

18 Sinai.

19 Several years ago, I published an

20 article with others on several cases of malignant

21 mesothelioma and an unusual presentation of those cases.

22 Last year, I published an article on

23 early detection of lung cancer among nuclear weapons

24 workers who were exposed to asbestos and other lung

25 carcinogens.



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1 There may be others, but I dont recall

2 them at the moment.

3 Q. The research that you have identified,

4 did each of these projects result in a published study or

5 publication?

6 A. Yes.

7 Q. And would they be identified in your CV

8 when we receive it?

9 A. Sure.

10 Q. Did any of these studies that you have

11 identified deal specifically with the risk of

12 mesothelioma among people who used sheetrock, tape joint

13 compound or did that sort of work?

14 A. They werent specific to that risk.

15 Q. Did any of the studies that were more

16 general in nature include as a subgroup those individuals

17 who would have been exposed to asbestos through tape

18 joint compound or sheetrock work?

19 A. Yes.

20 Q. Which studies, Doctor?

21 A. The studies of occupational disease in

22 general from the 80s and 90s would have covered --

23 included construction workers exposed to those materials

24 in the settings that youve mentioned.

25 To some extent, insulators also were



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1 exposed to those materials in the settings that you

2 mentioned, and they were the subject of the study

3 published about ten years ago on prognosis of death from

4 asbestosis.

5 Q. In terms of the work that you did

6 generally on comprehensive occupational diseases, did you

7 break out as a subgroup those people that worked with

8 sheetrock only?

9 A. No.

10 Q. Were they included as a member of

11 another group that youve identified?

12 A. They would have been included in the

13 group exposed to asbestos.

14 Q. Just exposed to asbestos in the

15 construction trades?

16 A. In general.

17 Q. When you looked at death from asbestos

18 insulation workers, did you break out or identify as a

19 category people would worked with tape joint compound?

20 A. No.

21 Q. Have you ever done any work where you

22 identified as the group to be studied those people that

23 would have been exposed to asbestos doing sheetrock work

24 or using tape joint compound --

25 A. No.



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1 Q. -- that group in particular?

2 A. No.

3 Q. I would like to talk to you about the

4 plaintiff case particularly.

5 A. Sure.

6 Q. You were kind enough to give me your

7 file material before we began, and I had the court

8 reporter mark as separate exhibits portions of your file.

9 Would you extract those that deal with

10 plaintiff?

11 A. Yes.

12 Q. Can you identify for me what you have

13 that deals with plaintiff?

14 A. Exhibit B is my report dated February

15 26, 2008, Exhibit C is a certification of plaintiff plaintiff.

16 Exhibit D is a Second Amended Complaint of Mr. plaintiff

17 plaintiff and -- that is it.

18 Q. You also have the deposition of plaintiff,

19 do you not?

20 A. Correct.

21 Q. I didnt mark it.

22 Could you identify it for the lawyers

23 who are here, the deposition --

24 A. Sure. Its the deposition of Mr. plaintiff

25 dated November 17, 2006.



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1 Q. Did you receive any other material

2 pertaining to Mr. plaintiff that we have not identified or

3 marked as an exhibit?

4 MR. MUHIC: Dr. Markowitz has

5 listed in his report the materials

6 that are in here.

7 MR. dopey defense lawyer: Right.

8 A. I received a deposition dated September

9 6, 2007. Also, Plaintiffs Responses to Defendants

10 Interrogatories. And, finally, some medical records from

11 Morristown Memorial Hospital and the office of Dr. Robert

12 Taub.

13 Q. Now, you brought with you a CD. Is that

14 where the medical records appear?

15 A. Yes. That is correct.

16 Q. Did you have any medical records other

17 than Morristown and Robert Taub, M.D.?

18 A. No, I didnt.

19 Q. Did you receive any other information

20 about plaintiff plaintiff directly or indirectly other than

21 what you identified?

22 A. No.

23 Q. No interview report, no opportunity to

24 talk with any of the family members. That sort of thing?

25 A. That is correct.



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1 Q. Did you conduct any independent

2 examination or investigation on your own as to

3 Mr. plaintiffs condition other than what is shown in the

4 records and the depositions?

5 MR. MUHIC: Do you mean other

6 than reviewing the things he knew?

7 MR. dopey defense lawyer: Yes, correct.

8 A. No, I didnt.

9 Q. Did you speak with any of the physicians

10 directly?

11 A. No.

12 Q. In terms of Mr. plaintiffs description of

13 his exposure to products and his work history in general,

14 did you make any attempt to verify that yourself?

15 A. Not independently of the materials that

16 I was given.

17 Q. Did you talk to anyone or interview

18 anyone who might have offered verification?

19 A. No.

20 Q. When were you retained in the case,

21 Doctor?

22 A. I was asked to appear at a deposition a

23 number of weeks ago. I dont recall the exact time.

24 Q. You were asked to appear at a

25 deposition?



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1 A. That is correct.

2 Q. Were you asked to appear as an expert

3 witness?

4 A. Yes.

5 Q. Were you given an assignment, or a

6 mission or a brief?

7 A. To cover general issues involving

8 asbestos-related disease and also to cover particular

9 issues involving Mr. plaintiff.

10 Q. When did you get involved in plaintiff?

11 A. Mr. plaintiff was given to me as a subject

12 of the deposition several weeks ago. Although at that

13 time, it was to cover general issues involving causation

14 of asbestos-related disease.

15 Q. Okay.

16 So, several weeks ago, then, in

17 connection with your work on the plaintiff case, you were

18 asked to appear as an expert witness in the plaintiff case?

19 A. To be available for a deposition in

20 which Mr. plaintiff would be a topic, but the assignment was

21 to cover general issues involving asbestos-related

22 disease.

23 Q. With respect to Mr. plaintiff, were you

24 given any specific assignment in his case? Were you

25 asked to express opinions specific to him?



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1 A. Last week, I was asked to prepare a

2 report specifically on Mr. plaintiff.

3 Q. In connection with preparing the report,

4 were you asked to prepare a report on anything in

5 particular or just a report?

6 A. It was about the potential presence of

7 asbestos-related disease in Mr. plaintiff.

8 Q. So, you were asked to give a report

9 about whether or not he had asbestos-related disease?

10 A. Correct.

11 Q. Were you asked to identify what was the

12 cause, at least in your opinion, of his asbestos-related

13 disease?

14 MR. MUHIC: When you say

15 cause, what are you referring to?

16 A. I was --

17 MR. MUHIC: Wait.

18 I want to clarify the

19 question.

20 Are you referring to a

21 particular product or generally a

22 cause?

23 MR. dopey defense lawyer: Well, right now it

24 is just was he asked to determine what

25 was the cause of the disease, and then



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1 if its particular product or

2 generally I will ask later on.

3 Q. Right now, were you asked to determine

4 what was the cause of Mr. plaintiffs asbestos-related

5 disease if he had one?

6 A. Actually, I wasnt asked any particular

7 questions about the causation of his disease. I

8 understood the issue was whether asbestos contributed to

9 or caused his disease.

10 Q. Okay.

11 So, have you reached an opinion as to

12 whether or not asbestos caused or contributed to the

13 cause the disease that Mr. plaintiff had if he had one?

14 A. Sure. Thats in my report of February

15 26, 2008.

16 Q. Were you asked to determine which of the

17 exposures or which of the products identified by

18 Mr. plaintiff caused or contributed to cause his disease?

19 A. No.

20 Q. Were you given any other assignment with

21 respect to Mr. plaintiff or have you reached any other

22 opinion with respect to Mr. plaintiff other than general

23 issues relating to asbestos and its connection with

24 disease, his asbestos-related disease, and whether or not

25 exposure to asbestos generally caused his disease.



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1 MR. MUHIC: Objection.

2 Let me just note, other than

3 the opinions that are reflected in his

4 report that he has told you he

5 produced?

6 Q. Well, if there are other opinions, other

7 than those three categories, in his report could you tell

8 me?

9 A. No. I have no other opinions if I

10 understand that question correctly.

11 Q. In terms of Mr. plaintiff, did you review

12 the medical records to reach an opinion as to whether or

13 not he is suffering from an asbestos-related disease?

14 A. Correct.

15 Q. Did you reach an opinion as to whether

16 or not he is?

17 A. Yes.

18 Q. What is he suffering from?

19 A. Malignant mesothelioma.

20 Q. Did you identify it as pleural or

21 peritoneal?

22 A. Pleural.

23 Q. Do you know when he was diagnosed,

24 roughly? It doesnt have to be an exact date, Doctor?

25 MR. MUHIC: Do you know



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1 offhand without referring to the

2 medical records?

3 A. July of 2006.

4 Q. Do you know what treatment he received

5 following diagnosis?

6 A. Yes.

7 Q. What treatment did he receive?

8 A. He received two regimens of

9 chemotherapy.

10 Q. Was it successful?

11 MR. MUHIC: Objection to the

12 form of the question.

13 A. I dont --

14 MR. MUHIC: Let me just

15 interject.

16 What do you mean by

17 successful?

18 MR. dopey defense lawyer: Isnt that a term

19 doctors use from time to time?

20 MR. MUHIC: I am asking you

21 how you are using it. You are not a

22 doctor.

23 What do you mean by

24 successful?

25 MR. dopey defense lawyer: Not any particular



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1 meaning at all.

2 A. I dont have more recent available

3 records, medical records. That would allow me to express

4 an opinion about that.

5 Q. Do you know on what the diagnosis was

6 based?

7 A. It was based on tissue taken at surgery,

8 the biopsy of the pleural tumor that Mr. plaintiff has and

9 the examination of that tissue under the microscope in

10 particular with immunohistochemical stains.

11 Q. Did you review the actual stains or the

12 actual slides?

13 A. No.

14 Q. Did you review the reports of others?

15 A. Yes, correct.

16 Q. Do you concur in the diagnosis?

17 A. Yes.

18 Q. Now, do you have an opinion as to

19 whether or not Mr. plaintiff was exposed to asbestos

20 generally during the course of his work-life?

21 A. He was exposed to asbestos.

22 Q. I assume that you based that on the

23 deposition of Mr. plaintiff, both November 17 and September

24 6?

25 A. That and the interrogatories. There was



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1 also some citation of his exposure in the medical

2 records.

3 Q. Did you obtain anything in the medical

4 records that was not also from the depositions?

5 MR. MUHIC: Objection.

6 A. Well, these are, in my view, mutually

7 exclusive sources. I recorded in my report the

8 references in the medical records that his treating

9 physicians discussed his asbestos exposure. I also cited

10 Mr. plaintiffs own account of his exposure to asbestos.

11 Q. In terms of the particular details or

12 information, was there anything in the medical records

13 that was not also contained in the depositions?

14 MR. MUHIC: Objection to the

15 form.

16 A. No.

17 Q. In connection with the depositions, did

18 you derive at an idea or opinion about what his exposure

19 was?

20 A. Yes.

21 Q. What was his exposure?

22 A. He was exposed as a carpenter for --

23 rather, he was a carpenter for at least 40 years, and he

24 was exposed for many years to a variety of

25 asbestos-containing materials in his work as a carpenter.



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1 Q. Can you identify the asbestos-containing

2 materials?

3 A. I can identify the ones that he cited in

4 his interrogatory responses and his depositions.

5 Q. Which ones did you believe that he was

6 exposed to?

7 MR. MUHIC: Objection to the

8 form of the question.

9 A. He --

10 MR. MUHIC: Wait.

11 You are saying which ones did

12 he believe, which ones did he say that

13 he read from the documents he already

14 testified to. You are saying which

15 one did he believe. Are you asking

16 does he not believe the testimony he

17 read?

18 MR. dopey defense lawyer: No. I didnt ask

19 him did he not believe the testimony.

20 MR. MUHIC: You asked him

21 which one did you believe he was

22 exposed --

23 MR. dopey defense lawyer: Correct.

24 MR. MUHIC: Are you saying

25 based on what he read, what did he



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1 learn that Mr. plaintiff had testified

2 to?

3 Q. Doctor, if I understand correctly, you

4 have indicated to me that you reviewed both medical

5 records which contained information about exposure and

6 depositions, right?

7 A. Correct.

8 Q. But, you also told me that there was

9 nothing in the medical records that was not also in the

10 depositions?

11 A. Correct.

12 Q. Using the depositions as the source of

13 your information about what Mr. plaintiff claimed he was

14 exposed to what do you believe Mr. plaintiff was exposed to?

15 A. Sure. Again, I cite Mr. plaintiffs own

16 report of what he was exposed to which included joint

17 compound, ceiling and floor tiles, mastics, adhesives,

18 caulking and foam sealants as well as some soapstone

19 countertops, and that he worked with these materials, and

20 he described that they contained or may have contained

21 asbestos.

22 He also worked in close proximity to

23 insulators who were using pipecovering material, so that

24 he was exposed to asbestos-containing insulation

25 material.



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1 Q. Its my recollection that Mr. plaintiff

2 worked primarily in commercial construction as opposed to

3 residential?

4 A. What is the question? Are you asking me

5 whether I agree?

6 Q. Yes.

7 Do you agree?

8 A. Yes.

9 Q. In correction with the commercial, do

10 you know whether or not he ever described being near or

11 around fireproofing?

12 MR. MUHIC: I am sorry. Near

13 what?

14 MR. dopey defense lawyer: Fireproofing.

15 A. What I read in the depositions, that he

16 worked near pipecovering and duct work insulation

17 covering. I dont recall the word fireproofing per se if

18 you mean something else by that term.

19 Q. Okay.

20 I do mean something else by that term.

21 I mean the spray on of fireproofing material generally on

22 exposed or structural steel?

23 A. I dont recall seeing any reference to

24 that in his depositions. They may be there, but I just

25 dont recall.



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1 Q. Do you have enough independent expertise

2 to evaluate whether or not the buildings he described

3 working on would have received fireproofing?

4 A. I have no idea.

5 Q. So, if he didnt mention it, you

6 wouldnt have any independent basis for concluding that

7 it probably was there or was not there?

8 A. I would have no basis for expressing an

9 opinion.

10 Q. In terms of pipecovering material that

11 he identified, did he identify the specific material

12 either by trade name, product name or type of insulation?

13 A. I dont recall him mentioning a product

14 name, but I dont really pay that much attention to

15 product names. He did recall -- I do recall him

16 mentioning pipecovering which he saw in his -- near where

17 he worked, but I dont recall any further details about

18 that.

19 Q. Based on your own knowledge, do you know

20 or have an opinion as to what kind of pipecovering he

21 would have been exposed to?

22 MS. Mrs dopey defense lawyer: Objection.

23 A. Let me say that when I said pipecovering

24 before I also mentioned duct covering. But, I would have

25 no idea of what the nature of that material was or who



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1 made that material what the product was.

2 Q. Based on the time periods that he was

3 working, do you have an opinion as to whether or not the

4 pipecovering material probably contained asbestos?

5 MS. Mrs dopey defense lawyer: Objection to the

6 form.

7 A. Yes.

8 Q. What is your opinion?

9 MR. MUHIC: Objection.

10 A. Certainly in the 1960s and 1970s, I

11 would expect that it contained asbestos.

12 Q. Do you know or have an opinion as to

13 what type of asbestos it would have contained?

14 MS. Mrs dopey defense lawyer: Objection to the

15 form.

16 A. Most of the pipecovering at that time

17 was chrysotile, although there may have been other

18 asbestos types as well.

19 Q. Do you know whether or not any of the

20 pipecovering contained amosite?

21 A. I dont know.

22 Q. Now, is duct material separate in your

23 mind from pipecovering or duct working material?

24 A. Well, its -- the ducts are different

25 from pipes in that to that extent it involves a different



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1 underlying material, but the insulation function is the

2 same.

3 Q. Do you believe that the asbestos -- let

4 me ask you this.

5 In terms of duct material that he

6 described, do you believe that it contained asbestos or

7 probably contained asbestos?

8 A. I dont know.

9 Q. Do you have an opinion as to whether or

10 not it would have contained asbestos given the period of

11 time that he was working?

12 A. I would say there was a good chance that

13 it contained asbestos.

14 Q. If it contained asbestos, do you know

15 what type of asbestos it would have contained?

16 A. No.

17 Q. Do you know whether or not Mr. plaintiff

18 probably was exposed to asbestos cement in connection

19 with either the pipecovering or the duct work?

20 MR. MUHIC: Objection to the

21 form.

22 MS. Mrs dopey defense lawyer: Objection to the

23 form.

24 MR. dopey defense lawyer: What is wrong with

25 the form?



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1 MS. Mrs dopey defense lawyer: It calls for

2 speculation.

3 MR. dopey defense lawyer: Did you have an

4 objection to the form, Peter?

5 MR. MUHIC: I dont like the

6 way it was phrased. I dont think it

7 was clear, what you were referring.

8 Q. With reference to the pipecovering,

9 insulation pipecovering, do you understand the use of the

10 phrase insulation cement?

11 A. Sure.

12 Q. Okay.

13 Do you have an opinion as to whether or

14 not Mr. plaintiff would have been around insulation cement

15 as part of his exposure to pipecovering?

16 MS. Mrs dopey defense lawyer: Objection.

17 A. I dont recall his specific reference to

18 asbestos cement, and so that I dont have an opinion

19 about that.

20 Q. Do you have an opinion generally as to

21 whether or not use of asbestos cement is an integral part

22 of pipecovering --

23 MS. Mrs dopey defense lawyer: Objection.

24 Q. -- or using pipecovering materials?

25 MS. Mrs dopey defense lawyer: Objection.



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1 A. Its frequently used in construction

2 junction with pipecovering.

3 Q. Do you have an opinion as to whether or

4 not Mr. plaintiff probably would have been exposed to

5 asbestos cement if he was exposed to pipecovering?

6 MS. Mrs dopey defense lawyer: Objection.

7 A. Excuse me for one second.

8 Q. Absolutely, Doctor.

9 A. Would you repeat the question?

10 Q. Yes.

11 Do you have an opinion as to whether or

12 not Mr. plaintiff probably would have been exposed to

13 asbestos cement if he was exposed to asbestos-containing

14 pipecovering?

15 MS. Mrs dopey defense lawyer: Same objection.

16 A. I think there is a good likelihood, but

17 I cant say for sure.

18 Q. With respect to the pipecovering

19 material or the duct working material, were you ever able

20 or did Mr. plaintiff ever identify the names of any

21 products, manufacturers of any products, or give any

22 description of the product from which you could deduce

23 who made it?

24 A. I dont recall.

25 Q. Do you have an opinion as to what



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1 products he would have been exposed to either by name or

2 manufacturer?

3 A. No.

4 Q. In terms of his exposure to pipecovering

5 material, were you able to determine when he was exposed

6 to pipecovering material, where he was exposed to

7 pipecovering material or the frequency in regularity?

8 MR. MUHIC: Objection to the

9 form.

10 MS. Mrs dopey defense lawyer: Objection to the

11 form.

12 A. As I recall, it was in the 1960s and

13 70s at a variety of settings where he worked in the

14 process of renovation he was exposed to pipecovering

15 material, and that this was a regular part of his job.

16 Q. In connection with the renovation, would

17 that include tear out of existing pipecovering?

18 A. Yes.

19 Q. As well as replacement of pipecovering?

20 A. I am not saying that he, himself,

21 engaged in application of --

22 Q. I understand that.

23 A. -- insulation, but normally when its

24 torn out its also replaced.

25 Q. Now, in connection with the work that



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1 Mr. plaintiff did, did he ever, to your recollection, state

2 that he worked as an insulator where he would have ripped

3 out the pipecovering or installed pipecovering?

4 MR. MUHIC: You are asking

5 whether he read that in the materials

6 he reviewed?

7 MR. dopey defense lawyer: Yes. Was there

8 any other source of information.

9 Q. Based on the sources of information

10 available to you about what Mr. plaintiff did and what he

11 was exposed to, do you know whether or not Mr. plaintiff

12 ever worked as an insulator personally?

13 A. I dont believe that he personally

14 applied insulation material to pipes or to duct work. He

15 stated that he was quote unquote all the time in close

16 proximity to pipecoverers who were insulating pipes. He

17 was certainly on job sites and in close proximity when

18 rip out and renovation occurred including removal of

19 pipecovering material. I dont recall whether he,

20 himself, actually ripped out that insulation material or

21 not.

22 Q. In terms of close proximity, did he

23 provide enough information for you to state

24 quantitatively how close he was in terms of meters, yards

25 or feet?



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1 MR. MUHIC: Objection to the

2 form.

3 A. Close proximity to what?

4 Q. To the activity of either installing

5 pipecovering insulation or ripping it out?

6 A. I dont recall that he quantified it.

7 But, I believe he was in the immediate vicinity when

8 those operations occurred.

9 Q. In connection with your conclusion that

10 he was in the immediate vicinity, did you conclude in

11 quantitative terms how close he was or do you determine

12 that he was close enough to have been exposed to asbestos

13 fibers produced by the operation?

14 A. I determined he was close enough to have

15 been exposed. I dont recall if he gave any numbers as

16 to how far he was away from any particular operation.

17 Q. In connection with the work that he did

18 with pipecovering and duct work, do you have an opinion

19 as to the level of exposure to asbestos fibers he would

20 have experienced --

21 MR. MUHIC: Objection to the

22 form.

23 Q. -- when he was in close proximity?

24 MS. Mrs dopey defense lawyer: Objection to the

25 form.



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1 A. I certainly cant give you a number for

2 that.

3 Q. Can you give me a range?

4 A. No.

5 Q. Do you have an opinion as to whether or

6 not his exposure would have been materially equivalent to

7 an insulator doing the same work?

8 MR. MUHIC: Objection to the

9 form.

10 MS. Mrs dopey defense lawyer: Objection to the

11 form.

12 A. I dont think that his exposure would

13 have been identical to that of the insulator who was on

14 the job site.

15 Q. Would it have been in the same range?

16 MR. MUHIC: Objection to the

17 form.

18 MS. Mrs dopey defense lawyer: Objection to the

19 form.

20 A. I dont know what you mean by range.

21 Q. Whenever values are given for the

22 exposure of insulators performing the insulation work,

23 they are generally exposed in terms of more than, but not

24 greater than, but less than, and then they gave a range

25 of what the exposures are. So, it is not a specific



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1 value or number. Its just sort of a range.

2 Do you know or have an opinion as to

3 whether or not Mr. plaintiffs exposure to asbestos

4 generated by the activity associated with pipecovering

5 would have been in the same range as the insulators

6 themselves?

7 MS. Mrs dopey defense lawyer: Objection to the

8 form.

9 A. Again. I dont know what you mean by

10 range, and I dont really agree with the first part of

11 your sentence or question, excuse me.

12 Q. Do you have an opinion as to whether or

13 not Mr. plaintiffs exposure to the asbestos generated by

14 pipecovering activities, either installation or tear out,

15 would have been significant?

16 A. Yes.

17 Q. Do you believe or have an opinion as to

18 whether or not Mr. plaintiffs exposure to the asbestos

19 generated pipecovering activities would have been enough

20 to place him at an increase of contracting mesothelioma?

21 A. Yes.

22 Q. You mentioned soapstone countertops.

23 Do you know anything about the asbestos

24 content of those materials?

25 A. No.



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1 Q. Do you know anything about the asbestos

2 exposure generated by the use of the materials?

3 A. Not quantitatively.

4 Q. Do you know whether or not asbestos is

5 generated by the use of the materials?

6 MR. MUHIC: When you say

7 use, what are you referring to, the

8 installation?

9 MR. dopey defense lawyer: Yes. Obviously.

10 I am referring to the installation.

11 Q. I apologize. When I meant use, I meant

12 do you know or have an opinion as to whether or not

13 asbestos is generated by the installation of soapstone on

14 countertops?

15 A. Any asbestos-containing material, if it

16 is manipulated in a way that creates dust is likely to

17 produce airborne dust for the worker who is working

18 directly with or in close proximity to that operation.

19 That would include soapstone.

20 Q. Was there a description given by Mr.

21 plaintiff that installation of soapstone countertops

22 generated dust?

23 A. In his Certification, he stated that he

24 quote often installed soapstone countertops in the

25 laboratories end of quote. He stated that sanding was



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1 necessary to obtain a proper fit, and he also stated that

2 this operation produced dust and that he inhaled this

3 dust.

4 Q. Okay.

5 In connection with the installation of

6 the soapstone countertops in the labs, did he identify

7 when or where?

8 A. As I recall from the depositions. He

9 worked at those pharmaceutical facilities in the 1960s

10 and 1970s.

11 Q. Did he give you enough information that

12 you could conclude that his exposure was frequent and

13 regular?

14 MR. MUHIC: Objection to the

15 form.

16 A. He stated in the Certification that he

17 quote unquote often installed soapstone countertops end

18 of quote. I take it from that statement that his work

19 with that material was frequent.

20 Q. Other than the description given in the

21 Certification, do you have any information that would

22 quantify how often, how regular, he would been exposed to

23 dust generated by the installation of countertops?

24 MR. MUHIC: Are you referring

25 to other than whats been recorded in



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1 the deposition testimony to the extent

2 he covers that also?

3 MR. dopey defense lawyer: No.

4 I was actually referring to

5 the deposition because the only thing

6 he has identified so far is the

7 Certification. I dont remember

8 anything in the deposition, but the

9 doctor is a better man than I am.

10 A. Is that a question?

11 Q. No. That was a comment directed to his

12 objection.

13 You can answer no to that question if

14 you would like.

15 MR. MUHIC: So, your question

16 is, does he recall from the deposition

17 if it references to the, is it, time

18 frame?

19 MR. dopey defense lawyer: No. Its the

20 number of times.

21 A. In the November 17, 2006 deposition on

22 page 56, his work in making laboratory facilities and

23 using soapstone as countertops is cited. But, I dont

24 see the frequency.

25 Q. Okay.



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1 Now, in connection with the installation

2 of soapstone countertops where sanding is required to

3 make a good fit, do you know or have any information

4 available to you about how much asbestos would be

5 generated by that operation?

6 A. No.

7 Q. Do you know or have any information

8 available to you about how much of the soapstone

9 countertop itself would be asbestos?

10 A. No.

11 Q. Do you know or have information

12 available to you that sanding the soapstone countertops

13 that Mr. plaintiff had to deal with actually did produce

14 asbestos, friable asbestos?

15 A. If the soapstone contains asbestos and

16 its sanded, or sawed, or otherwise manipulated in a

17 manner that produces airborne dust, then mostly likely

18 that dust contains asbestos.

19 Q. Is there any way for you to quantify how

20 much asbestos dust Mr. plaintiff would have been exposed to

21 if the soapstone countertops he dealt with in fact

22 contained asbestos?

23 A. No.

24 That occurred many years ago, and I

25 couldnt recreate quantitatively what that exposure might



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1 have been.

2 Q. If the soapstone countertops contained

3 some measure of asbestos, do you know have an opinion as

4 to whether or not he would have been exposed to a

5 significant amount, and by significant meaning enough to

6 increase his risk of contracting mesothelioma?

7 A. At the time that he was working with

8 those countertops, again, to the extent that he sanded or

9 otherwise manipulated those materials and it produced

10 dust, airborne dust, in his vicinity that would have

11 contributed to his exposure to asbestos which caused his

12 malignant mesothelioma.

13 Q. Was the contribution in and of itself

14 significant?

15 MR. MUHIC: Objection to the

16 form.

17 Q. Let me tell you why I am asking. It is

18 my understanding that you are aware that there is a

19 background level of asbestos that urban dwellers are

20 exposed to, correct?

21 A. Correct.

22 Q. And it is your opinion that that

23 background level does not significantly increase an

24 individuals risk of contracting mesothelioma.

25 MR. MUHIC: Objection to the



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1 form.

2 Q. Is that right?

3 A. No.

4 Q. You think it does?

5 A. No.

6 MR. MUHIC: Why dont you --

7 you can ask him the question.

8 MR. dopey defense lawyer: Well, I was kind

9 of dancing around it because they did

10 talk about it in the tooth fairy

11 deposition.

12 MR. MUHIC: Well, the way you

13 are phrasing your question. If you

14 are going to try to refer to

15 something, I would rather you refer to

16 it accurately as opposed to

17 inaccurately.

18 MR. dopey defense lawyer: Could I just ask

19 him directly?

20 MR. MUHIC: Ask the question

21 and I will let you know if he can

22 answer it.

23 MR. dopey defense lawyer: Okay.

24 Q. Do you have an opinion as to whether or

25 not exposure to background levels of asbestos cause or



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1 contributes to cause mesothelioma in the general

2 population?

3 MR. MUHIC: When you are

4 saying -- can you just clarify when

5 you are saying background asbestos,

6 are you referring to anything in

7 particular or any particular location,

8 are you referring to outside, are you

9 referring to any geographical regions?

10 Q. Do you have an opinion as to whether

11 Mr. plaintiff would have been exposed to asbestos?

12 MR. MUHIC: Throughout the

13 course of his career?

14 MR. dopey defense lawyer: Yes. Throughout

15 the course of his career.

16 A. He was certainly exposed to asbestos in

17 his work as a carpenter.

18 Q. Yes. But, where did that happen,

19 Doctor, do you know?

20 A. As his work as a carpenter?

21 Q. Yes. Where was he working?

22 A. He was working at a number of different

23 locations. He mentioned a church. He mentioned

24 Morristown Hospital. He mentioned at Warner-Lambert

25 facility, Ciba-Geigy facility. He mentioned Short Hills



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1 Mall. He mentioned Rockaway Mall, a number of stores in

2 those malls. And he may have mentioned other specific

3 locations. He did say that he worked at thousands or at

4 least many, many locations during his career as a

5 carpenter.

6 Q. But, didnt he indicate that most of

7 list work as a carpenter occurred within a confined

8 geographic area, one or two counties?

9 A. I think it was northern New Jersey.

10 Q. Using northern New Jersey as the base,

11 is there a background level of asbestos that people to

12 live in northern New Jersey are exposed to?

13 A. Well, I dont know any information about

14 northern New Jersey per se. But, over the last several

15 decades in the metropolitan areas there generally is a

16 very low level of asbestos in the ambient air.

17 Q. Okay.

18 Do you have an opinion as to whether or

19 not the very low levels of asbestos in the ambient air in

20 urban areas contributes or causes to mesothelioma in the

21 general population?

22 A. Its not known. There may be a risk.

23 Its a very difficult issue to study. If there is a

24 risk, its extremely low.

25 Q. Is there anyone who has identified the



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1 risk?

2 A. Well, theres never been a study of a

3 group of people who were only exposed to ambient air

4 asbestos with a comparison group and looked at their

5 level of risk. I am not aware of any study that does

6 that.

7 Q. Has anyone concluded that there is in

8 fact a risk of contracting mesothelioma from ambient

9 exposures?

10 A. I would have no idea whether anybody

11 else has expressed that opinion or not. There may be

12 some people that expressed that opinion, but I dont know

13 who they would be.

14 Q. In terms of Mr. plaintiffs exposure to

15 asbestos that is generated by the operation of sanding

16 the soapstone to make it fit, is the level of exposure

17 that you would anticipate from that, if the material did

18 in fact contain asbestos, significant to increase his

19 risk of contracting mesothelioma?

20 MR. MUHIC: Objection to the

21 form.

22 A. I would expect that if that soapstone

23 contained an appreciable amount of asbestos that the dust

24 that it would produce through sanding or sawing would

25 contain a significant amount of asbestos and would



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1 contribute to his risk of malignant mesothelioma.

2 Q. Would the contribution that that makes

3 in and of itself be enough to increase his risk?

4 I am sorry. I dont mean to different.

5 A. Sure.

6 Q. I am using as a -- I am trying to use as

7 a measure background levels.

8 My understanding basically is that no

9 one has been able to determine whether or not background

10 levels while they contribute to your overall exposure in

11 and of themselves were enough to increase your risk of

12 contracting mesothelioma. Using that as the paradigm, do

13 you have an opinion as to whether or not whatever

14 additional exposure he got from the soapstone labs in and

15 of itself would have been enough to increase the risk of

16 contracting the disease?

17 MR. MUHIC: Objection to the

18 form.

19 A. Let me say that Mr. plaintiff had multiple

20 sources of asbestos exposure including, most likely, this

21 soapstone, and that each and every exposure that he had

22 contributed to his overall risk of malignant

23 mesothelioma.

24 Q. Can you tell me whether or not any

25 individual exposure in and off itself would have been



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1 enough to increase the risk of contracting the disease?

2 MR. MUHIC: He just gave you

3 that answer. He said each and every

4 exposure is contributing to it.

5 MR. dopey defense lawyer: Yes.

6 Thats why I am asking him the

7 question can he tell me whether or not

8 the exposure that contributes, each

9 and every, is in and of itself enough

10 to increase the risk.

11 MR. MUHIC: You can answer it

12 again.

13 A. Where I get a little confused is what

14 you mean by individual exposure.

15 Do you mean a single day? Do you mean a

16 single product?

17 If you are talking about a single type

18 of material that he, for instance, soapstone that he said

19 he used often during his work as a carpenter then I would

20 say, yes. That was certainly a contributor to his risk

21 of mesothelioma.

22 Q. Now, in terms of soapstone, I apologize

23 if I asked you this before, do you know who made it?

24 A. No.

25 Q. You gave me a description of him working



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1 at labs when he would have done this?

2 A. Thats what I believe he said, yes.

3 Q. Do you remember what labs he identified?

4 A. In his deposition, I know he mentioned

5 Ciba-Geigy. He mentioned Warner-Lambert. He may have

6 mentioned one or two others I dont recall. At one or

7 more of those facilities is where he installed the

8 soapstone lab tops.

9 Q. Now, the other materials that you

10 identified include joint compound, ceiling tiles, mastics

11 adhesives. Anything else?

12 A. Floor tiles. He also identified

13 caulking and the foam sealant.

14 Q. Okay.

15 With respect to the mastics adhesives

16 and the caulking, treating those as a group, was his

17 description of the use of those materials in the

18 installation process, so he put them on?

19 A. I am sorry.

20 What is the question?

21 Q. Was his description of the use of

22 mastics, adhesives and caulking installation, that is, he

23 is putting the materials on new as opposed to scraping

24 off old stuff?

25 A. Okay.



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1 MR. MUHIC: Can I just be

2 clear when you are referring to

3 caulking you are not including joint

4 compound?

5 MR. dopey defense lawyer: I am not.

6 Q. Let me be clear about this.

7 I am talking about the caulking that he

8 used when he dealt with windows, for example, or other

9 seals where he would use the tubes that he used was about

10 12 inches long, three inches in diameter and a gun where

11 he would put them on.

12 MS. HALLY: Objection to the

13 form, and I am asking in your question

14 you are grouping mastics and caulking?

15 MR. dopey defense lawyer: Yes.

16 A. I am sorry. What is the exact question?

17 Q. Im trying to put together the group of

18 products that he used where he installed them where they

19 were, you know, not liquid, but they were malleable. So,

20 he has the caulking that he uses, the caulking gun. He

21 has got mastics which he scoops out of the can. And he

22 has got adhesives that he would apply either scooping out

23 or the can or using a gun, but the material that he is

24 installing is new material as opposed to ripping out or

25 scraping away old material, correct?



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1 A. Correct.

2 Q. Do you ever remember him describing an

3 event where he had to deal with old mastic, old adhesives

4 old caulking where he had to scrape it away, sand it away

5 or remove it.

6 A. It may be in his depositions. I dont

7 recall any specific discussion about that.

8 Q. Now, when he describes using the

9 mastics, adhesives and caulking, does he ever describe a

10 circumstance where the use of the product generated dust?

11 A. Well, not in the direct application of

12 those materials.

13 Q. Would he ever have been exposed to dust

14 in association with the application of mastics.

15 Adhesives or caulking?

16 MR. MUHIC: Dust from those

17 products?

18 MR. dopey defense lawyer: Correct.

19 Q. By caulking, I am not talking about

20 joint compound. I am talking about the stuff in the

21 tube.

22 A. Right. I remember him describing that

23 he would get these materials on his hands, on his clothes

24 and it would dry thereafter.

25 Q. Setting aside the material on the



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1 clothing, just dealing with the material as a product

2 that he worked with as a carpenter or worked around

3 others who were using the product, did he ever describe

4 the circumstance where the use of the products, mastics

5 adhesives or caulking generated dust?

6 MR. HALLY: Just note my

7 objection to the form. This is a

8 running objection with regard to the

9 compound -- in the compound question.

10 A. In his Certification, he stated that

11 these materials were not dusty when he applied them, but

12 that they would get on his hands and clothing, and after

13 they dried they became dusty.

14 Does that answer the question?

15 Q. It says that he never associated dust

16 with the application of mastics, adhesives or caulking.

17 Is that a fair statement?

18 MR. MUHIC: What are you

19 referring to when you ask that

20 question?

21 A. I am sorry.

22 Are you quoting the never or --

23 MR. dopey defense lawyer: Yes.

24 A. -- are you quoting me or are you quoting

25 him or is it not a quote and its an assertion? I am not



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1 clear.

2 Q. Did he ever describe dust generated by

3 the application of mastics, adhesives or caulking other

4 than the dust that might be generated from his hands or

5 clothing?

6 A. Not that I recall.

7 Q. Do you know or have an opinion as to

8 whether or not if that material, mastics, adhesives or

9 caulking contained asbestos, but did not generate dust in

10 its application would he have been exposed to asbestos if

11 applying mastics, adhesives or caulking?

12 MR. MUHIC: Objection to the

13 form.

14 A. If a particular process generates no

15 dust, is liquid material which is not manipulated in a

16 way thats likely to generate dust, then, it is unlikely

17 to produce an exposure for the individual handling that

18 material. So, in the application of those materials,

19 unless there was some in level of dust that simply he

20 couldnt see and therefore couldnt report, I dont see

21 that the application of those materials produced any risk

22 to him at least not in the way that he describes the way

23 that he used them.

24 Q. Okay.

25 In connection with your expertise, do



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1 you know whether or not the application of those

2 materials would have produced dust that he didnt see or

3 report?

4 A. I have no knowledge about that.

5 Q. So, is it fair to conclude, based on his

6 description of the application of the materials, that the

7 application itself did not generate asbestos dust that

8 would have increased the risk of his contracting asbestos

9 disease?

10 MR. MUHIC: You are

11 specifically excluding from the

12 Certification referring to the product

13 being on his hands and clothing,

14 drying.

15 MR. dopey defense lawyer: Yes. Just the

16 application.

17 A. I have no independent knowledge that

18 such materials in their application produce airborne

19 dust. I simply dont know.

20 Q. If they dont produce airborne dust,

21 they would not increase the risk of him contracting an

22 asbestos-related disease from the application of the

23 products?

24 A. Thats correct.

25 Q. If terms of his description of getting



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1 the materials on his hands, and clothing, and then having

2 to wash his hands or clean himself up and the clothing,

3 do you know or have an opinion as to whether or not the

4 process of dealing with the material on his hands and

5 clothing generated dust?

6 MR. MUHIC: Let me just object

7 to the form of that when you are

8 including the washing the hands and

9 getting wet. That is not what the

10 Certification states if thats what

11 you are referring to.

12 A. He states in the Certification that when

13 the products that when the products, referring to the

14 mastics and caulks, dried on his hands and clothing they

15 became quote crumbly and dusty, end of quote.

16 Q. All right.

17 Based on his description contained in

18 the Certification of the material on his hands and

19 clothing becoming quote crumbly and dusty close quote,

20 do you have an opinion as to whether or not they would

21 have released asbestos dust?

22 A. If they contained asbestos and if he

23 used it on a reasonably frequent basis, then, yes.

24 Q. Apart from his description, are you

25 aware of anyone that has actually measured or determined



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1 that if you get the material on your hands and it dries

2 and you knock it off, you are actually creating levels of

3 asbestos exposure?

4 A. I am not aware of it. It may have been

5 done, but I am not aware of it.

6 Q. Okay.

7 So, do you know whether or not what he

8 describes getting material on his hands, having it dry

9 and it becomes crumbly and quote dusty close quote,

10 that it is actually releasing or producing friable

11 asbestos material?

12 A. I dont -- I would have to ask you to

13 restate that because friable is not -- doesnt make a lot

14 sense to me in that question.

15 Q. Okay.

16 How would you like me to describe

17 asbestos in dust material that is capable of causing

18 injury? What do you want me to call it? As opposed to

19 encapsulated or something else, what do you want me to

20 call it?

21 A. I cant answer that question.

22 Q. What do you call it?

23 A. No, no. It depends on what you have in

24 mind. I cant -- I am not sure what you exactly have in

25 mind. I am not being coy. I am just saying. You



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1 elaborate the questions and I give the answers.

2 Q. Okay.

3 In this procedure where he gets this

4 material from the mastics or the caulking on his hands,

5 it dries, it becomes dry and crumbly and he knocks it

6 off, and there is some dust produced, do you know whether

7 or not what he is describing in fact contained asbestos

8 particles capable of causing injury?

9 A. If that material contained asbestos, and

10 if he used it repeatedly and it became dusty, meaning

11 that it was airborne dust, quite close to actually to his

12 breathing zone it being on his hands and his clothes,

13 then I would say, yes, it did contribute.

14 Q. Do you know of anyone who has actually

15 measured or determined that if you get the material on

16 your hands, it becomes dry and crumbly and you knock it

17 off, you are producing asbestos dust?

18 A. These particular materials, I dont

19 know.

20 Q. So, are you inferring from some other

21 study to reach the conclusion that there was asbestos

22 dust generated?

23 A. I am inferring from general knowledge

24 that if an asbestos-containing material, however

25 manipulated, produces airborne dust, that asbestos is



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1 likely to appear in that dust, and if it gets into the

2 breathing zone of the person near that dust then it

3 presents a hazard.

4 Q. Do you have any particular study in mind

5 that in your opinion leads to the inference that that

6 applies to mastics, adhesives and caulking?

7 A. I think Ive been asked that a couple of

8 times already. But, I will be glad to answer again,

9 which is, no. I am not aware of any particular study.

10 Q. In terms of the mastics that Mr. plaintiff

11 explains he was exposed to, do you know or did he

12 identify any particular brand of mastic?

13 A. I dont recall. I dont pay much

14 attention to brand names.

15 Q. Did he identify how much, how often,

16 where, when?

17 A. I just need a moment to look in the

18 deposition.

19 Q. Thats okay.

20 (Pause in proceedings.)

21 A. He said that he used mastics in the

22 1960s and the 1970s. I dont see a reference to a

23 frequency of use. He discussed it as if it were a

24 regular part of his job.

25 Q. Is there any way for you to conclude



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1 that his exposure, if there was any, to the dust

2 generated by knocking dry mastic off his hands was

3 sufficient to increase his risk for contracting

4 mesothelioma?

5 MR. MUHIC: Objection to the

6 form.

7 A. Could you repeat the question?

8 Q. Okay.

9 I understand that when we are talking

10 about his use of mastics the only opportunity for that to

11 have added to his risk of contracting mesothelioma is if

12 it dried on his hands, he knocked it off, it had

13 asbestos, it produced dust that contained asbestos.

14 Is there any way for you to -- do you

15 have enough information to reach a conclusion that his

16 potential exposure to asbestos dust generated by the use

17 of mastics in that form significantly increased his risk?

18 MR. MUHIC: Objection to the

19 form.

20 A. I would like to know the frequency with

21 which he used the material.

22 Q. And thats not available to you?

23 A. Unless it is in part of his deposition

24 that I just dont recall, I dont see that information.

25 MR. dopey defense lawyer: May we go off



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1 record for a moment?

2 (Discussion held off the

3 record.)

4 Q. Doctor, I am not in a position of giving

5 you homework assignments. But, I understand it is

6 difficult for you, you dont have complete command of

7 every line in the deposition, when you review the

8 deposition for signature, this deposition for signature,

9 if at that time you have determined that you have enough

10 information about the frequency of use of mastics to

11 conclude whether or not his use of mastics, as he

12 described it, increased the risk, at this point in the

13 deposition there will be a blank for you to answer the

14 question and describe your opinion, okay?

15 MR. MUHIC: I object to the

16 extent that you may be trying to

17 require him to do something and use it

18 against him at the trial. But, if the

19 doctor feels he needs to amend or

20 change any answers if he did not feel

21 they are accurate he could have that

22 right.

23 THE WITNESS: Thank you.

24 Q. Now, with respect to adhesives, do you

25 understand those to be, and the reason Ive posed it



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1 adhesives, do you understand those materials to be

2 different than joint compounds or the same?

3 A. Different.

4 Q. Okay.

5 There was a reference to them using

6 joint compounds as adhesives --

7 A. I recall that.

8 Q. I want to separate that use of joint

9 compounds out and just deal with material that is

10 adhesive only.

11 Are you familiar with that material?

12 A. Sure.

13 Q. Do you know whether or not Mr. plaintiff

14 identified adhesives as such, either by name or by

15 description, so we can determine what he used?

16 A. I know he mentioned the word adhesives,

17 but I dont recall any particular product name.

18 Q. Did he give a description of the

19 product, meaning, mastics are black gooey? Did he

20 describe adhesives --

21 A. Not that I recall.

22 Q. Do you know whether or not adhesives in

23 the 60s or 70s contained as a component asbestos?

24 A. I dont know that.

25 Q. Did he know whether or not the adhesives



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1 he used contained asbestos?

2 MR. MUHIC: Objection to the

3 form.

4 A. I dont know whether he knew or not.

5 Q. Do you have any information whether the

6 adhesives he used in fact contained asbestos?

7 A. No, I dont.

8 Q. Can you conclude, then, that the

9 adhesives that he used contained asbestos?

10 A. I cant conclude that.

11 Q. Okay.

12 Now, the caulking that he described, do

13 you understand what he meant by the term caulking?

14 A. Sure.

15 Q. Did he describe the caulking by name or

16 by description sufficient enough for you to conclude what

17 he was using?

18 A. Yes.

19 Q. What was he using?

20 A. Well, I dont recall the name of the

21 caulking. I mean, he cited some names, but I didnt

22 focus on that.

23 Q. Can you tell me who made the caulking

24 that he used?

25 A. I dont remember the company. Again, I



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1 dont focus on who made what and brand names.

2 Q. Do you know whether or not the caulking

3 that he used in fact contained asbestos?

4 A. I have no independent knowledge whether

5 it contained asbestos or not.

6 Q. Did he know whether or not it contained

7 asbestos?

8 A. I dont recall whether he knew it or

9 not.

10 Q. Do you have enough information based on

11 your general fund of information to conclude that the

12 caulking in the 60s and 70s probably contained

13 asbestos?

14 A. I dont have any information about that.

15 Q. So, if it didnt contain asbestos, he

16 wouldnt have been exposed to asbestos using the product

17 either application or when he knocked it off his hands?

18 A. Thats correct.

19 Q. Could you conclude that he was exposed

20 to asbestos using either adhesives or caulking?

21 A. I can only conclude that if it contained

22 asbestos and he used it on a regular basis it would have

23 contributed to his risk. But, I have no independent

24 knowledge whether those materials contained asbestos or

25 not.



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1 Q. Right now, the floor tiles as a category

2 of products.

3 Do you know whether or not he was using

4 vinyl asbestos floor tiles?

5 A. He stated that he was using floor tiles

6 that he believed contained asbestos.

7 Q. Do you know whether or not in the 60s

8 and 70s they were actually identified as or described as

9 asbestos floor tiles?

10 A. Yes, they were.

11 Q. Do you know -- let me back up.

12 Did Mr. plaintiff know how much asbestos

13 was in the tiles he was using?

14 MR. MUHIC: At what point in

15 time? When he was using it, or when

16 he was deposed or some other time?

17 Q. Did Mr. plaintiff ever know how much

18 asbestos was in the floor tiles he was using?

19 MR. MUHIC: Objection to the

20 form.

21 A. I didnt see any reference by him as to

22 what percentage of floor tiles was represented by

23 asbestos.

24 Q. Do you know, based on your independent

25 knowledge of the products used generally, how much



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1 asbestos would have been in the vinyl asbestos floor

2 tiles?

3 A. I dont recall.

4 Q. Was the asbestos primarily chrysotile?

5 A. I believe so.

6 Q. Did Mr. plaintiff ever describe ripping out

7 previously applied or installed vinyl asbestos floor

8 tile?

9 A. He certainly described ripping out floor

10 tile. I dont know that he referred to it as vinyl

11 asbestos tile or not.

12 Q. Do you have any knowledge whether or not

13 he ever ripped out previously applied vinyl asbestos

14 tile?

15 A. I believe that he did.

16 Q. How do you --

17 A. I am sorry. I believe he ripped out

18 tile that was existing in buildings. Whether it

19 contained asbestos or not, I dont know.

20 Q. Do you know whether or not the adhesives

21 used for the floor tiles would have contained asbestos?

22 A. I dont know that.

23 Q. In the application of the floor tile, if

24 you do not have to cut or score the tile is there any

25 asbestos released?



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1 A. Only if you open the box and it is dusty

2 in the box you are exposed to that dust. But, in the

3 actual application of undisturbed floor tiles, I am not

4 aware that there is any exposure to asbestos.

5 Q. In the cutting or the scoring of the

6 floor tiles, is asbestos dust released?

7 A. I believe so.

8 Q. Do you know how much asbestos dust is

9 released from the tiles you cut?

10 A. No.

11 Q. Are you aware of any studies that have

12 been done to determine how much asbestos dust is

13 released?

14 A. I dont know of them. They may have

15 been done, but I am not aware of any.

16 Q. Do you know or have an opinion as to

17 whether the dust released from cutting floor tiles is

18 significant?

19 MR. MUHIC: Objection to the

20 form.

21 A. Sure.

22 If the field contains asbestos and its

23 cut and produces airborne dust, and thats done as a

24 regular part of the job then it is a significant

25 contributor to diseases.



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1 Q. Are you aware of any studies where

2 people have looked to see whether or not installation of

3 floor tiles, vinyl asbestos floor tiles, actually

4 produces breathable asbestos in the breathing zone of the

5 installer, and, if so, how much?

6 A. Such studies may have been done. I am

7 not aware of them.

8 Q. The absence of the studies, are you

9 prepared to give the opinion, however, that if dust is

10 released there was significant asbestos in the breathing

11 zone of the installer?

12 MR. MUHIC: Objection to the

13 form.

14 A. I am prepared to say that if the floor

15 tile was cut or otherwise manipulated and produced

16 airborne dust and it contains an appreciable amount of

17 asbestos that that dust would have contained asbestos and

18 would have contributed to the disease risk of the person

19 so exposed.

20 Q. In terms of the level of dust, you used

21 a generic or a descriptive term appreciable?

22 A. No. I didnt use the word appreciable

23 to refer to level of dust.

24 Q. Is it any level of asbestos dust that,

25 in your opinion, increases the risk?



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1 MR. MUHIC: The risk of

2 developing mesothelioma?

3 MR. dopey defense lawyer: Yes.

4 MR. MUHIC: Objection to the

5 form.

6 A. I think this gets back to the issue you

7 raised before about ambient asbestos in the air in

8 metropolitan areas. I think at extremely low levels,

9 such has been seen in the ambient environment, there may

10 be some risk. We dont know in fact whether it presents

11 risk. The working assumption given that theres no safe

12 threshold that it may well present a risk at extremely

13 low levels of asbestos. In the working environment when

14 workers work with materials that contain asbestos on a

15 regular basis producing airborne dust. We are talking

16 about normally much higher levels of asbestos in the air

17 compared to those ambient levels, and certainly those

18 levels in the workplace environment have contributed to

19 asbestos-related disease risk.

20 Q. Apart from theoretical discussion about

21 what you believe, are you aware of any studies that have

22 actually gone and looked at people who install vinyl

23 asbestos floor tiles whether or not the levels of

24 asbestos dust they are exposed to exceed a particular

25 value, or are a particular value, or whether or not



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1 people who do that work for a long period of time have

2 demonstrated an increase in the incidence of

3 mesothelioma?

4 A. Sure. I am not aware -- such studies

5 may have been done. I am not aware of them.

6 Q. Okay.

7 Ceiling tiles, is that a separate

8 category of product for you?

9 A. Separate from what?

10 Q. Floor tiles.

11 A. Sure.

12 Q. Do you know whether or not ceiling tiles

13 in the 60s and 70s would have contained asbestos?

14 A. My understanding is that some of them

15 did contain asbestos.

16 Q. Do you know whether or not Mr. plaintiff

17 used ceiling tiles that did in fact contain asbestos?

18 A. I dont know whether those particular

19 tiles contained asbestos or not. I dont have that

20 information.

21 Q. When you reviewed the information from

22 Mr. plaintiff, did he know whether or not they contained

23 asbestos?

24 MR. MUHIC: Did he know when

25 he was deposed?



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1 Q. At any time did he know. Did he know it

2 when he did it, when he was deposed? Did he say I used

3 ceiling tiles that contained asbestos?

4 A. He learned much later in his life that

5 some of the materials that he used likely contained

6 asbestos. But, I dont recall whether ceiling tiles per

7 se were on the list that he believed contained asbestos

8 or not. It may be in the deposition. I just dont

9 recall.

10 Q. If he used ceiling tiles that contained

11 asbestos, would he have been exposed to asbestos dust?

12 A. Yes.

13 Q. And that would have been when the tiles

14 had to be cut?

15 A. No. Actually, he stated that those

16 ceiling tiles even in routine manipulation produced dust

17 and produced even more dust when cut. So, a routine use

18 of ceiling tiles that contained asbestos would be

19 expected to produce airborne levels of asbestos.

20 Q. Are you aware of any studies that

21 identify or quantify how much asbestos dust is generated

22 by the manipulation of ceiling tiles that contained

23 asbestos?

24 A. I dont know of such studies. Again,

25 they may exist, but I dont know of them.



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1 Q. Do you have an opinion as to whether or

2 not if Mr. plaintiff used ceiling tiles that contained

3 asbestos his manipulation of the ceiling tiles increased

4 his risk of contracting mesothelioma?

5 A. Yes.

6 Q. And what is that?

7 A. This is a regular part of his work in

8 the 60s and 70s. He described that it produced dust,

9 and if it contained asbestos then it certainly would have

10 contributed to his risk of developing the disease he

11 eventually developed, mesothelioma.

12 Q. I assume that the ceiling tiles were

13 using chrysotile as far as you know?

14 A. As far as I know, that was certainly the

15 principal type of asbestos.

16 Q. Now, I want to talk to you about the

17 joint compounds.

18 Are you familiar with joint compounds?

19 A. Yes.

20 Q. What do you understand joint compounds

21 to do or to be used for?

22 A. They are used to bridge two materials,

23 usually tape and sheetrock, on the wall in order to

24 produce a smooth surface.

25 Q. Now, it is my understanding that



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1 Mr. plaintiff as a carpenter generally did not use the joint

2 compound himself, correct?

3 A. No. He said that he used material

4 hundreds of times, so he clearly used it quite often.

5 Q. But, generally speaking, there were

6 other people that used the joint compound followed on

7 behind him?

8 A. Well, he also referred to other people

9 who used the joint compound that used it even more

10 frequently than he did. But, you could say he generally

11 used the material as well.

12 Q. Setting aside the times that he

13 described using the material himself. We are going only

14 to the times where he described other people using the

15 material. He would have been characterized as a

16 bystander to other men working with or other workers

17 actually using the material, applying it and sanding it?

18 A. That is correct.

19 Q. As a bystander, do you know what levels

20 of exposure Mr. plaintiff would have experienced?

21 A. Quantitatively, no.

22 Q. Now, when he was using the material

23 himself, he just said hundreds of times or did he give

24 any more information about the frequency regularity that

25 he was using the material himself?



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1 A. Well, I recall the reference hundreds of

2 times. I dont know whether he amplified that or not.

3 Q. When he would use the material, would it

4 be something that he would do for a day, half day?

5 A. I dont recall.

6 Q. Do you have any idea how much time he

7 spent where he actually manipulated the material himself?

8 A. You mean at each time that he used it?

9 I dont recall him saying it.

10 Q. In terms of the joint compound material

11 that he used, he identified a number of brand names,

12 correct?

13 A. Correct.

14 Q. Do you know or do you have enough

15 information to tell us when he used any particular brand

16 name or where he used it?

17 A. It is in the deposition. I can

18 certainly look it up for you. I dont recall it right

19 now which brands he used when.

20 Q. Okay.

21 Do you know or have an opinion as to

22 whether or not his exposure to asbestos as a bystander

23 when other people were using joint compounds would have

24 increased his risk for contracting mesothelioma?

25 A. Sure.



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1 Q. What is your opinion?

2 A. It increased his risk of developing

3 mesothelioma.

4 Q. Do you know of any studies or

5 epidemiological surveys that associate or establish an

6 association between a bystander to other people using

7 joint compounds and increasing the incidence of

8 mesothelioma?

9 A. Specific studies, no. It would be very

10 difficult to study. Such workers dont have exclusive

11 exposure to joint compounds. They are usually exposed to

12 other asbestos-containing materials as well. So, I dont

13 even think it is possible to do such a study.

14 Q. Are you aware of any studies that

15 identify sheetrock workers or people who tape and float

16 as a group to determine whether or not that group of

17 workmen shows an increase in the instance of

18 asbestos-related disease?

19 A. I dont recall. Such studies may have

20 been done, but I dont recall the details as we sit here

21 today.

22 Q. Are you aware of any study that says

23 there is an increase in the incidence of mesothelioma

24 among people who do sheetrock work, taping and floating?

25 A. Taping and floating, is that what you



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1 are asking?

2 Q. Yes, sir.

3 A. I dont recall the results of any

4 studies.

5 Q. Is taping and floating a term that you

6 are not familiar with?

7 A. I understand the taping. The floating

8 is what puzzled me.

9 Q. Where I come from, the taping and

10 floating is a reference to the process where you use the

11 tape and the tape joint compound and the sanding to

12 create a smooth surface so it looks like a single surface

13 as opposed to a surface made of sheets of sheetrock. I

14 am not trying to be obtuse.

15 A. No, no. Thats fine. I usually have

16 seen that referred to as taping. But, thats fine. I

17 appreciate that.

18 Q. So, the question, are you aware of any

19 studies that associate that trade or profession with an

20 increase in the incidence of mesothelioma? Are you aware

21 of any such studies?

22 A. I cant recall any or the results of any

23 as I sit here today.

24 Q. Have you made any efforts to identify

25 the specific risk or the increase in the risk that would



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1 have been generated by the use of any particular product?

2 MR. MUHIC: Objection to the

3 form.

4 Q. Tape joint compound that Mr. plaintiff

5 identified?

6 A. Could you repeat the question?

7 Q. Did you make any attempt to identify or

8 quantify the specific increase in the risk of contracting

9 mesothelioma that Mr. plaintiff would have experienced from

10 any particular product that he identified?

11 MR. MUHIC: Objection to the

12 form.

13 A. Quantitatively not.

14 Q. Are you able to identify qualitatively

15 more risk from this product as opposed to that products?

16 MR. MUHIC: Did you say

17 qualitatively from one product to

18 another?

19 MR. dopey defense lawyer: Yes.

20 MR. MUHIC: Objection to the

21 form.

22 A. To tell you the truth, the relative

23 frequency of use of some of the products, that

24 information wasnt available in the depositions or the

25 interrogatories, so thats hard to say.



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1 Q. Do you know or have an opinion as to

2 what was the level of asbestos in any particular product

3 he identified?

4 A. No. I dont know that information.

5 Let me just amplify something I said

6 before. Clearly, he used and was around a lot of joint

7 compound and that was a very frequent exposure for him.

8 To the extent it contained asbestos, clearly it

9 contributed to his risk of mesothelioma. Frankly, what

10 was a little less clear from the deposition is the

11 frequency that he used some of these other materials.

12 Q. With respect to the tape joint compound,

13 my recollection is he identified a number of different

14 products by trade name or by name.

15 A. Sure.

16 Q. So, the question was, did you attempt to

17 determine which of the products tape joint compound he

18 identified by name increased the risk more than the

19 others, had nothing to do with it or did you treat them

20 all the same?

21 MR. MUHIC: Objection to the

22 form.

23 A. No. That is not something that a

24 physician would attend to.

25 Q. So, in connection with your work in this



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1 case, you just concluded that his description of the use

2 of tape joint compound generally was enough to increase

3 the risk of contracting the disease?

4 MR. MUHIC: Objection to the

5 form.

6 A. Yes.

7 Q. Did you do anything to identify which of

8 the products he identified by name would have increased

9 the risk?

10 A. No.

11 Q. In terms of the products that he used,

12 tape joint compound that he identified by name, is there

13 enough information for you to tell me what year or years

14 he used any of the products?

15 A. He used joint compound especially in the

16 60s and the 1970s. There was less information about his

17 use of that material in the 80s and the 90s.

18 Q. Do you know whether or not the material

19 contained asbestos after 1978?

20 MR. MUHIC: As it was

21 manufactured new?

22 Are you saying whether newly

23 manufactured joint compound after 1978

24 contained it?

25 You are referring to joint



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1 compound. Joint compound that is on a

2 wall after 1978, if it was made with

3 it its going to contain it.

4 Are you referring to joint

5 compound manufactured after 1978 by

6 any particular manufacturer when you

7 give that question?

8 MR. dopey defense lawyer: Oh, Im sorry.

9 MR. MUHIC: You could have

10 joint compound on the wall now that

11 was put up in 1978 and it is going to

12 have asbestos --

13 MR. dopey defense lawyer: The reason I used

14 1978 is because, my understanding, the

15 CPSC order was that they couldnt sell

16 it.

17 MR. MUHIC: It doesnt mean

18 they didnt for one thing and it

19 doesnt mean that it wouldnt have

20 been in stock or something else.

21 Thats why I am asking you to clarify

22 your question.

23 Q. Do you know when asbestos was no longer

24 used as a component in the manufacture of tape joint

25 compound and when tape joint compound containing asbestos



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1 was no longer permitted to be sold?

2 MR. MUHIC: In the United

3 States.

4 Q. In eastern -- in New Jersey.

5 A. I dont know about New Jersey. In the

6 mid to late 1970s is when asbestos was phased of joint

7 compound.

8 Q. Okay.

9 Now, in the time period when Mr. plaintiff

10 worked as a carpenter from 1960 and using 1970 as a

11 benchmark, from 1960 to 1978, do you have enough

12 information to identify what specific years he would have

13 used a specific product, for example, he used Georgia

14 Pacific in 1962, that sort of thing?

15 MR. dopey defense lawyer: Objection.

16 A. As I said before, I really didnt attend

17 to what products he used and what time period -- what

18 brand of product he used and what time period.

19 Q. Okay.

20 A. It wasnt a question that I was

21 addressing.

22 Q. Do you have any idea who supplied the

23 asbestos to the manufacturers of tape joint compound and

24 what asbestos was supplied?

25 A. Chrysotile was the main asbestos used as



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1 far as I know. But, I dont know who supplied it.

2 Q. Do you know whether or not the

3 chrysotile that was supplied for the use in tape joint

4 compound contained tremolite as a contaminant?

5 A. I dont know that it contained

6 tremolite.

7 Most of the asbestos in the U.S. came

8 from Quebec and most of the Quebec asbestos has contained

9 some amount of contamination with tremolite. So, one

10 would expect that Canadian derived chrysotile used in

11 that product would contain tremolite. But, I dont know

12 whether specifically whether the joint compound made by

13 this or that manufacturer contained tremolite or not.

14 Q. Do you know the trade description of the

15 chrysotile used in the joint compound?

16 A. No.

17 Q. Do you know whether or not chrysotile

18 that was used in tape joint compound was regarded as

19 sevens, or shorts or waste material?

20 A. I dont know.

21 Q. Do you know whether or not the

22 chrysotile that was used in tape joint compounds did or

23 did not contain tremolite?

24 MR. MUHIC: Objection to the

25 form.



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1 A. I dont know in fact whether it did or

2 did not.

3 MR. MUHIC: Objection.

4 Q. In terms of the type of asbestos that

5 was used in this country, during the period of time that

6 asbestos was used in the country, was more than one type

7 used?

8 MR. MUHIC: Objection to the

9 form.

10 A. You are talking about during the

11 throughout the 20th Century?

12 Q. Yes.

13 A. Yes.

14 Q. What types were used?

15 A. Principally --

16 MR. MUHIC: Wait.

17 For any particular trade or

18 industry or what are you referring to?

19 Just any type of asbestos used for any

20 sort of product in the country during

21 the 20th Century?

22 MR. dopey defense lawyer: Yes.

23 A. The dominant type was chrysotile. Over

24 90 percent was chrysotile in this country. There was

25 also some amosite and some crocidolite that was used.



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1 Q. Do you know what the amosite was used

2 for generally?

3 A. It had multiple uses. I know it was

4 used certainly in the Navy as pipe insulation material,

5 and I just dont recall the other uses as we sit here

6 today.

7 Q. What about crocidolite, do you know how

8 much crocidolite was used and what it was used for?

9 A. Much smaller amounts of crocidolite was

10 used. I know there were some specialty uses. I just

11 dont recall the details.

12 Q. Is there a difference between the fiber

13 types?

14 A. Yes.

15 Q. What is the difference?

16 MR. PLACITELLA: Can you hear

17 me?

18 MR. dopey defense lawyer: Yes.

19 MR. PLACITELLA: Before you

20 start this line of questions, is there

21 a good breaking point to break soon

22 because I have to plug my phone into a

23 different outlet.

24 MR. dopey defense lawyer: We are going to

25 take five. Smoke them if you got



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1 them.

2 (A short recess was taken.)

3 Q. Before I forget, Doctor, I wanted to ask

4 you to go back to the use of tape joint compound. My

5 recollection is that you testified that Mr. plaintiff, to

6 your recollection, used tape joint compound personally in

7 the 60s and 70s.

8 Did I understand that correct?

9 A. At least. I wasnt saying he didnt use

10 it in the 80s and the 90s.

11 Q. Right.

12 A. But that he definitely used it in the

13 60s and 70s.

14 Q. Do you have a specific reference in the

15 deposition where Mr. plaintiff stated he used as opposed to

16 worked around others who used in the 60s and 70s?

17 A. I would have to spend a couple of

18 minutes looking at the deposition.

19 MR. MUHIC: What is the

20 follow-up question rather than if you

21 want him to spend time going through

22 every line?

23 MR. dopey defense lawyer: We had some

24 discussion during the break and there

25 was some disagreement among the



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1 attorneys, tape joint compound

2 attorneys, as to whether he actually

3 used it in the 60s as opposed to

4 worked around it.

5 If he has a specific reference

6 or if he can give us a specific

7 reference, we can move on.

8 Off the record.

9 (Pause in proceedings.)

10 Q. Doctor, rather than spending our time

11 with you reviewing the deposition, at this point in the

12 deposition there will be a blank. If you have a specific

13 reference, would you put that in for him, Mr. plaintiff,

14 using tape joint compound personally in the 60s?

15 A. Let me answer the question actually, and

16 then I may need to amplify it.

17 Q. Okay.

18 A. He stated that he, himself, used joint

19 compound at Short Hills Mall and Rockaway Mall, and he

20 certainly worked at one of these malls in the 1970s.

21 Q. Right.

22 A. So, at a minimum, he personally used

23 that material at that mall in the 1970s, and if there is

24 additional information about the timing of that I will

25 supply it.



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1 Q. Okay.

2 A. (Information to be supplied.)

3

4

5 Q. Now, in connection with quote the

6 70s, anything more definitive, 72, 75 or just 70s?

7 A. His specific citation, I dont see a

8 time within the 70s.

9 Q. Earlier, we had discussed that

10 Mr. plaintiff had some testimony where he identified using

11 tape joint compound products as an adhesives.

12 Do you recall that?

13 A. Yes.

14 Q. If the tape joint compound products he

15 is using are ready mix products, would he have been

16 exposed to asbestos dust using the tape joint compounds

17 as an adhesive?

18 MR. MUHIC: Objection to the

19 form.

20 Just when it is being applied

21 to a wall you are referring to or

22 applied to something.

23 MR. dopey defense lawyer: Right.

24 My recollection is that he

25 said that they would apply it to the



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1 cement block, and they would put the

2 wallboard against it, and they would

3 use it as an adhesive.

4 A. I dont know.

5 Q. If no dose is released, there is no

6 exposure to asbestos contained in the material, correct?

7 A. If its not manipulated in a way that

8 you would expect to find dust in the air, then there

9 would be no exposure.

10 Q. Now, in connection with the types of

11 asbestos, we were talking about three types that were

12 commercially available in this country were chrysotile,

13 amosite and crocidolite.

14 Is there a difference in the fiber types

15 and, if so, what is the different?

16 A. Sure.

17 There is a different in their shape, a

18 difference in their chemical makeup, and to some degree,

19 to a very limited degree, some difference in their

20 propensity to produce disease.

21 Q. Is there a difference in their

22 bio-persistence?

23 A. Yes.

24 Q. Which is the most persistent?

25 A. The amphiboles tend to be the most



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1 persistent at least in the lung tissue.

2 Q. That would be the amosite and

3 crocidolite?

4 A. Yes.

5 Q. In terms of their propensities to cause

6 malignancies, is there a difference in the types?

7 A. With respect to lung cancer, no. With

8 respect to mesothelioma, I believe that crocidolite is

9 more potent in producing human mesothelioma, meaning,

10 fiber per fiber its more likely to produce the disease.

11 Q. What about amosite?

12 A. Amosite is much closer to chrysotile.

13 It may be associated with some increase in risk of

14 mesothelioma vis-a-vis chrysotile. But, its much closer

15 to chrysotile than certainly crocidolite.

16 Q. Is there a generally acceptable ratio of

17 potency among the three types?

18 MR. MUHIC: I am just going to

19 note that these areas were part of the

20 deposition transcript that was already

21 provided.

22 MR. dopey defense lawyer: I am trying to be

23 careful. I dont remember if he was

24 asked specifically if there was a

25 generally accepted ratio of potency



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1 among the three fiber types.

2 A. I have seen a range. In general, it is

3 hard to know what is accepted because the consensus

4 statements or the health authorities that actually have

5 issued statements about this dont generally quantify the

6 relative risk of mesothelioma in relation to particular

7 asbestos types.

8 I believe that the crocidolite presents

9 somewhere in the range of four or five maybe 10 fold

10 increase of risk in mesothelioma compared to chrysotile.

11 Thats from Nicholson and from some others. And that

12 amosite is close to chrysotile or maybe somewhat

13 increased in risk. I am aware of a paper from 2000 that

14 says that the amosite risk is 100 fold for that of

15 chrysotile and 500 fold for crocidolite. But, I dont

16 believe that represents a consensus.

17 Q. You referring to Hodgson and Darden?

18 A. Yes.

19 Q. There they identified the ratios of one

20 for chrysotile, 100 for amosite, 500 for crocidolite?

21 A. Thats exactly what I said.

22 Q. The same article? You are talking about

23 the same article?

24 A. Correct.

25 Q. Do you concur with Hodgson and Darton in



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1 their ratios?

2 A. No.

3 Q. Do you concur with the relative potency

4 up of ratio?

5 A. No.

6 Let me ask you to be more clear about

7 that question because I thought I just answered it.

8 Q. Well, they set it out in terms of 500,

9 100, one. You spoke in terms of five fold. Crocidolite

10 is four or five fold more potent than chrysotile?

11 A. Four, five to ten fold more, correct.

12 Q. So, the ratio, if thats the term, would

13 be ten to something to one for amosite?

14 A. Well, a range of four to ten for

15 crocidolite in relation to chrysotile. So, I agree that

16 qualitatively that crocidolite appears to be the more

17 potent agent in terms of causing human malignant

18 mesothelioma. I just dont believe that the increase in

19 propensity is as great as Hodgson and Darden said.

20 Q. In terms of whether or not chrysotile

21 can cause or does cause mesothelioma, do you believe that

22 chrysotile as a fiber type can cause mesothelioma in

23 human beings?

24 A. Sure.

25 Q. Do you believe that that is the case?



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1 A. Yes.

2 Q. Is there a generally accepted exposure

3 level at which you would anticipate chrysotile would

4 cause mesothelioma?

5 MR. MUHIC: Objection to the

6 form.

7 A. I think there is a consensus that there

8 is no established safe level of chrysotile exposure or

9 any asbestos exposure below which there is propensity to

10 cause disease.

11 Q. Are you aware of some authors that

12 associate exposure to chrysotile in terms of fiber years

13 before you have an increase in instance of the disease?

14 A. I am sure there are some people who say

15 that.

16 Q. Do you believe that?

17 A. No.

18 Q. So, you dont believe --

19 A. I dont believe that the underlying data

20 permit one to say that.

21 Q. Have you done any independent research

22 yourself where you have attempted to look at the quantity

23 of exposure to chrysotile only necessary before you see

24 an increase in the instance of disease?

25 A. Original research myself addressing that



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1 issue?

2 Q. Yes.

3 A. No.

4 Q. Are you aware of any original research

5 addressing that issue that you use or rely upon?

6 A. Theres a whole, very large, body of

7 epidemiology that addresses the issue of the ability of

8 asbestos to cause mesothelioma, lung cancer and scarring

9 in the chest. And that entire literature pertains to

10 this question.

11 Q. Are you aware of any particular study or

12 studies that deal with the issue of how much chrysotile

13 it takes before you see an increase in the instance of

14 risk to mesothelioma?

15 MR. MUHIC: Objection to the

16 form.

17 A. Well, theres a whole range of settings

18 in which chrysotile and the other asbestos types had been

19 shown to cause mesothelioma. Some subset of those

20 studies have been translated into quantitative risks, but

21 I rely more on the qualitative description of the broad

22 types of different levels and nature of exposure to

23 asbestos including chrysotile which has resulted in a

24 malignant mesothelioma in people.

25 Q. So, you are aware of the studies, but



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1 you dont rely on them? You rely on others?

2 MR. MUHIC: Objection.

3 A. No. I didnt say that at all. I said I

4 rely on the totality of the literature and the weight of

5 the evidence.

6 Q. There is literature that indicates that

7 it takes 25 fiber years or more before you have an

8 increase in the incidence of mesothelioma if you are

9 exposed to chrysotile only?

10 MR. MUHIC: You are making

11 that representation?

12 MR. dopey defense lawyer: Yes.

13 Q. Is that correct?

14 MR. MUHIC: Objection to the

15 form.

16 A. I cant cite that particular study. I

17 dont believe it, but I cant tell you what study that is

18 from or whether that is the particular level that they

19 used.

20 Q. In terms of studies that you use or rely

21 upon, can you identify any by name or by author that

22 support the proposition that there is no safe level or

23 any level of exposure is sufficient to cause

24 mesothelioma?

25 A. Ive certainly seen it in certain



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1 consensus --

2 MR. MUHIC: Objection.

3 A. -- statements. For instance, I think in

4 the World Health Organization 1998 they make reference to

5 that.

6 That wouldnt be the kind of statement

7 that would come out of an original epidemiological study

8 because, as I said before, there are no studies that can

9 prove that point per se, that there is no safe threshold.

10 So, thats more of a conclusion that grows out of the

11 available epidemiology rather than the conclusion of a

12 specific study that permits that assertion.

13 (Pause in proceedings.)

14 (Discussion held off the

15 record.)

16 Q. Let me back up.

17 I am looking for, I am trying to figure

18 out, whether or not you believe or it is your opinion

19 that there is a certain level of exposure that must occur

20 before you can conclude that there is an increase in the

21 risk of contracting mesothelioma where the fiber type you

22 are dealing with chrysotile only? Do you have such an

23 opinion?

24 A. Sure.

25 I dont believe there has been



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1 established a specific level below which there is no

2 association with disease and above which lies all the

3 risk.

4 Q. Okay.

5 When you are analyzing whether or not an

6 exposure history in someone like Mr. plaintiff is sufficient

7 to lead to the conclusion that his exposure caused an

8 asbestos-related disease, is there a particular level of

9 exposure to chrysotile that you look for?

10 MR. MUHIC: Objection to the

11 form.

12 A. No, no. I looked at the fact that this

13 particular person worked as a carpenter for 40 years. He

14 worked for decades in the period of high asbestos use and

15 multiple asbestos products in the workplace.

16 He was involved in construction. He

17 handled materials that typically contained asbestos at

18 the time, and that he developed the single cancer in

19 relation to asbestos, malignant mesothelioma. So, I

20 conclude that his occupational exposure and each and

21 every exposure that was part of that exposure caused his

22 disease.

23 Q. And when I ask you about particular

24 exposures or exposures to particular products to look to

25 see whether or not that exposure or that exposure to a



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1 particular product was sufficient to have increased the

2 risk?

3 Is there a particular exposure level or

4 threshold level above which or below which you say it

5 could or above which you say it did?

6 MR. MUHIC: Objection to the

7 form with what the witness just

8 stated, was that each and every

9 exposure contributed to the cause of

10 the disease. You are turning some of

11 the words around with your question

12 and referring back, again, and you are

13 mentioning a risk.

14 MR. dopey defense lawyer: Yes, indeed, I am.

15 MR. MUHIC: So, you are

16 changing what hes just answered and

17 you are asking in your own way again?

18 MR. dopey defense lawyer: Yes. Thats how I

19 do things.

20 MR. MUHIC: Well, he just gave

21 you answer and now you are asking him

22 to answer again, but switch something.

23 MR. dopey defense lawyer: Yes, pretty much.

24 See if I can fool him.

25 MR. MUHIC: Good luck.



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1 MR. dopey defense lawyer: You know, with you

2 giving him signals.

3 MR. MUHIC: I am not giving

4 him signals. I am making sure your

5 questions are clear because you are

6 acting as if you are repeating

7 something that he said accurately.

8 A. I am sorry. Can you repeat the

9 question, please?

10 Q. When you talk about the totality of

11 Mr. plaintiffs exposure, as you have described in your

12 previous answer, I want to focus, however, on the

13 exposures to individual products or individual exposures.

14 My question to you is, when you are

15 dealing with exposures to individual products or

16 individual exposure episodes, is there a level of

17 exposure below which that exposure to that product does

18 not contribute to the risk?

19 MR. MUHIC: Objection to the

20 form.

21 A. Let me say that in the real world, as in

22 the case of Mr. plaintiff, actually we dont have access to

23 quantitative levels of asbestos. I mean, this is true

24 that patients in general and workers cant go back and

25 say I was exposed to X number of fibers per cc and the



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1 like, so we really cant speak quantitatively at all.

2 So, I dont look at whether there is a particular level

3 above or below at which he was exposed to determine

4 whether that exposure contributed to causing his disease.

5 Ive looked at the fact that he worked

6 with asbestos products in the right time period in a way

7 that produced airborne dust and that those exposures

8 ended up collectively and each and every one counted

9 causing his mesothelioma.

10 Q. The place I want to focus on is the

11 conclusion where you say quote each and every one

12 counted, close quote.

13 Is there a particular threshold level of

14 exposure before you say that counted that did not. For

15 example, I passed through a room where guys were sanding,

16 but I was only there about 15, 20 seconds, I may or may

17 not have taken a breath, or I applied insulation material

18 for four days.

19 I mean, is there a threshold at which

20 the exposure is insignificant and can be disregarded?

21 MR. MUHIC: Objection to the

22 form.

23 A. Well, you know, of course again, in the

24 real world and this kind of occupation he had, he worked

25 with these products on an ongoing basis for quite a



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1 period of time. If there were -- let me give you a

2 hypothetical to answer it.

3 If there were a product that were

4 uniquely used for a single day and never used again in

5 the context of decades of exposure, I would say that the

6 contribution of that exposure was very, very modest. I

7 am not going to rule out that theres some contribution

8 because, frankly, a long career consists of a bunch of

9 consecutive one-day exposures, right. But, I would say,

10 if exposure was really limited to passing through a room

11 for 15 seconds, the person didnt take a breath, that

12 would make it an extremely limited, extremely modest,

13 contribution to overall exposure.

14 Q. Is there any point at which extremely

15 modest contribution to overall exposure becomes

16 insignificant?

17 MR. MUHIC: Objection to the

18 form.

19 A. I cant give you an exact point because

20 it depends on the nature of the product, the nature of

21 the manipulation, the environment they are in, how many

22 days, what the time period was. Those details, they

23 matter. I cant -- there is no formula by which I could

24 say, yeah, this is insignificant.

25 Q. Well, is there a level measured in



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1 fibers per cc, measured in duration, measured in terms of

2 TLV, measured in terms of PELs, any scale where you can

3 say exposure below this level, in my opinion, is

4 insignificant in causing or contributed to cause this

5 mans disease?

6 MR. MUHIC: Objection.

7 A. I cant give you any level

8 quantitatively.

9 Again, the risk is continuous. So, the

10 lower the level the lower the risk, the lower the

11 contribution. But, there is no magic number that I have

12 in mind or that I am aware of.

13 Q. But, you are aware during the period of

14 time that asbestos was used in some of these products.

15 There was OSHA that established levels at which people

16 were permitted to work with the product.

17 Are you aware of that?

18 MR. MUHIC: Objection to the

19 form.

20 A. Correct.

21 Q. At some point, there was a TLV, at some

22 point there was a PEL, and today even there is still a

23 PEL for use of asbestos-containing products, correct?

24 A. Correct.

25 Q. Do you have an opinion as to whether or



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1 not the permissible exposure levels set by the federal

2 government were adequate in the sense that if the

3 exposure was below the PELs defined by the government

4 the increase in the risk was insignificant?

5 MR. MUHIC: Are you referring

6 to any particular point in time?

7 MR. dopey defense lawyer: No.

8 A. Sure. The PELs in and of themselves

9 are not safe, and the government doesnt even say that

10 they are safe.

11 If you take, for instance, the current

12 PEL, yes. There is a given number that is suppose to

13 prevail in the workplace. But, the government requires a

14 whole set of other actions by the employer to insure that

15 the worker has a much lower real exposure to asbestos

16 than would be permitted by exposure to the current PEL.

17 In fact, the government, OSHA, specifies

18 what the level of risk over a working lifetime would be

19 if a person worked at or above the current PEL, and that

20 that risk is cancer, and that that risk is clearly

21 unacceptable.

22 So, it is recognized by the government

23 that PEL alone does not protect the worker from getting

24 the relevant diseases.

25 Q. Do you have an opinion as to whether or



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1 not when OSHA was prescribing PELs they also said that

2 it is not sufficient to protect against disease?

3 MR. MUHIC: Objection to the

4 form.

5 A. Well, I know in the 1986 and 1994

6 documents that when OSHA changed the PEL that thats what

7 they acknowledged, that PEL alone at that time would not

8 lower the disease to an -- the risk of disease to an

9 insignificant level. Now, what OSHA said prior to that I

10 am not aware of.

11 Q. So, you are not aware of what they

12 promulgated in 1972 and 1976?

13 A. I know roughly what the levels of PEL.

14 I just dont know the language that went along with that

15 as to how they interpreted those levels.

16 Q. I take it, Doctor, it is your opinion

17 that exposures less than permissible exposures levels in

18 72 or 76 would not be enough to guaranty that the

19 exposure was not significant?

20 MR. MUHIC: Objection to the

21 form.

22 A. I am sorry.

23 You have to either repeat or reword the

24 question, so I can understand. There are too many

25 negatives.



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1 Q. I apologize.

2 In 1972, when OSHA came on board, they

3 established, I dont know if they call them, PELs or

4 TLVs, but they established levels at which exposures

5 should not occur.

6 Is that correct?

7 A. They established PELs.

8 Q. And then they modified those in 1976?

9 A. Correct.

10 Q. Do you have an opinion as to whether or

11 not exposures consistent with what the government

12 promulgated would be insignificant or would not increase

13 the risk of contracting mesothelioma?

14 MR. MUHIC: Objection to the

15 form.

16 A. Well, the levels above the PEL set at

17 those times certainly cause disease. In fact, levels

18 below the PEL set at that time have caused disease.

19 Q. Was it published by the government or

20 promulgated by the government that exposures at levels

21 less than the PEL would cause disease?

22 A. If you -- you are going back to the

23 70s?

24 Q. Yes, sir.

25 A. I dont know. That is not my area of



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1 expertise.

2 Q. In terms of Mr. plaintiff, is there any way

3 for you to tell me whether or not his exposure to any

4 particular class of products, ceiling tiles, floor tiles,

5 in and of itself, would be sufficient to have caused his

6 disease?

7 MR. MUHIC: Objection to the

8 form.

9 A. I believe that all of those exposures

10 that were mentioned, assuming that those products

11 contained asbestos, contributed to the development of his

12 mesothelioma.

13 Q. Yes. The question, however, was, is any

14 one of them sufficient in and of itself to cause disease?

15 A. Yes.

16 Q. Were they all sufficient or just some of

17 them?

18 A. I am thinking through the products.

19 Q. Okay.

20 A. Could you repeat the question?

21 (The following question was read back:

22 Question: Were they all

23 sufficient or just some of them?)

24 A. I think that the description that I have

25 available, as we sit here today, of his work that the



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1 joint compound, the floor and ceiling tile, the exposure

2 to pipecovering, that each of those exposures were

3 sufficient to cause his mesothelioma and collectively did

4 cause his mesothelioma.

5 I am a little less clear about the

6 mastics, adhesives, caulking and foam sealants because I

7 dont really have the detail about the frequency of use

8 to be able to say that individually in the absence of all

9 the other exposures they would have caused his

10 mesothelioma.

11 I believe that each of those products

12 that I just mentioned did contribute to the fact that he

13 developed mesothelioma, but I dont know individually in

14 the absence of additional information whether I could say

15 that each of them alone in the absence of any of the

16 other exposures would have been sufficient to cause his

17 mesothelioma.

18 Q. Okay.

19 Is it correct, then, to infer from your

20 answer that his exposure to asbestos-containing

21 pipecovering and duct work would have resulted in his

22 disease even if he had never used joint compound --

23 MS. Mrs dopey defense lawyer: Objection.

24 MR. MUHIC: Objection.

25 Q. -- that is that if that is sufficient in



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1 and of itself he would have contracted the disease if he

2 never worked with joint compound?

3 MS. Mrs dopey defense lawyer: Objection.

4 MR. MUHIC: Objection.

5 A. Yes.

6 Q. Now, do you have an opinion as to

7 whether or not any of these exposures was necessary in

8 connection with his disease?

9 MR. MUHIC: Which exposures

10 are you referring to?

11 MR. dopey defense lawyer: Any of them, were

12 they necessary to the disease.

13 MR. MUHIC: Well, you are

14 including any product now because you

15 were limiting to groups before.

16 Q. I apologize.

17 I dont mean to limit you to particular

18 products by trade name or product name.

19 I am talking about the groups of

20 products that we have dealt with in the past.

21 Taking into account his exposure to the

22 groups of products, in your opinion, was any of the

23 exposures a necessary cause of his disease?

24 MR. MUHIC: Objection to the

25 form.



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1 A. I mean --

2 MR. MUHIC: Wait.

3 Well, you are saying

4 necessary case as opposed to a

5 cause.

6 MR. dopey defense lawyer: Right.

7 Was it necessary?

8 MR. MUHIC: Was it necessary

9 in causing it?

10 MR. dopey defense lawyer: That is correct.

11 Q. Do you know what is meant by the term

12 necessary cause, Doctor?

13 A. Not in this context, no.

14 Q. Well, the term necessary cause is that

15 cause without which the disease would not have occurred

16 when it did.

17 Were any one of these a necessary cause?

18 A. Well, certainly the fact of asbestos

19 exposure in general was necessary for him to develop

20 mesothelioma. He would have been extremely unlikely to

21 have a mesothelioma in the absence of his collective

22 occupational exposure.

23 I dont believe that any particular type

24 of product in and of itself was in a vacuum and the

25 absence of the other products was necessary. It would



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1 have been sufficient, but I dont believe it was

2 necessary in terms of causing his mesothelioma.

3 Q. Now, in terms of the products and the

4 use of the products, I recognize that the next series of

5 questions are probably outside the area of your

6 expertise. I just want to make certain.

7 Do you have any expertise in what

8 information about the propensity to cause injuries was

9 available to the companies that manufactured these

10 products at any particular time?

11 A. I dont know that area.

12 Q. Is it within your area of expertise to

13 know what level of information was generally available to

14 the community as a whole about the propensity of these

15 products to cause injury at any particular time?

16 MR. MUHIC: What community?

17 When you say community as a whole, you

18 are referring --

19 MR. dopey defense lawyer: General public.

20 Q. The general public knows that one side

21 of the knife is sharp. The other is generally not. That

22 kind of thing.

23 Do you have any idea what was generally

24 known about the propensity of these products to cause

25 injury at any particular time?



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1 A. I dont know.

2 Q. Do you know, within your area of

3 expertise to know, what the obligation was on the part of

4 the product suppliers and manufacturers to provide

5 information to the users or consumers of the products?

6 Do you have any expertise about that?

7 A. Not really.

8 Q. Okay.

9 Do you know or have any information

10 about the Union Carbide Corporation specifically as it

11 pertains to Mr. plaintiff?

12 A. No.

13 Q. Do you know anything about the kind of

14 asbestos that they marketed --

15 A. No.

16 Q. -- or when they marketed it?

17 A. No.

18 Q. How they marketed it?

19 A. No.

20 Q. Do you know whether or not the asbestos

21 they marketed was or was not contaminated with tremolite?

22 A. I dont know.

23 Q. Do you know whether or not the asbestos

24 they marketed was or was not generally short fiber less

25 than five microns in length?



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1 A. I dont know.

2 Q. Do you know if there is a relationship

3 between fiber size and the propensity to cause injury?

4 A. Now, we are not talking about Union

5 Carbide. This is a general question.

6 Q. Back to a general question, yes.

7 A. Can you be more specific about that

8 question?

9 Q. Yes.

10 The asbestos fibers, regardless of type,

11 are generally measured in terms of length, and width and

12 aspect ratio, correct?

13 A. Correct.

14 Q. Is there any relationship between those

15 dimensions and the propensity of the fiber type to cause

16 disease?

17 A. There is a hypothesis that the longer

18 fibers of asbestos are more likely to produce

19 mesothelioma. Theres some evidence in the animal

20 literature dating back to the early 1980s that this may

21 be true.

22 Workers typically are exposed to a whole

23 variety of fiber length distributions, meaning, they are

24 exposed typically to short and to long fibers. And I

25 believe that all fibers contribute to the cancer when it



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1 develops.

2 I dont think we know enough -- given

3 the fact that workers and epidemiologic studies have

4 exposures to all fiber sizes, we dont know enough to be

5 able to say that short fibers are fine, no problem, no

6 risk of disease. I dont think week say that.

7 So, I think in the human setting it is

8 reasonable at this point to say that the whole fiber size

9 distribution of asbestos contributes to disease.

10 Q. Given that long answer, is it generally

11 accepted that the propensity to cause injury is

12 associated with the longer fiber types than the shorter

13 fiber types while you cannot exclude the short fiber

14 types to say they are benign?

15 MR. MUHIC: Objection to the

16 form.

17 A. I cant say what the consensus is.

18 Q. Do you agree that the propensity to

19 cause injury is associated with the longer fiber types

20 rather than the shorter fiber types while you cannot not

21 say short fibers are benign?

22 A. I think in humans we cant say that.

23 Q. Cannot say --

24 A. We dont know. We simply dont know.

25 Q. Do you recognize that there are others



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1 in your discipline that believe that the propensity to

2 cause disease is associated with the longer fiber types

3 rather than the shorter?

4 A. I have seen that assertion.

5 Q. Do you know whether or not there is an

6 association between the width of the fiber and its

7 propensity to cause disease?

8 MR. MUHIC: Objection to the

9 form.

10 A. Not directly.

11 Q. Whether or not the fiber can get into

12 the alveoli or small air sacs?

13 A. Could you read -- what is the question

14 there?

15 Q. It is my understanding that when you are

16 dealing with the fiber types that some fiber types are

17 too thick to be inhaled into the small air sacs.

18 A. No. I am unaware of that.

19 Q. Do you know anything about the product

20 marketed by Union Carbide Corporation with respect to the

21 general fiber length or the propensity of the fiber to

22 clump when it becomes longer?

23 A. No.

24 Q. Do you know anything about whether or

25 not product marketed by Union Carbide Corporation tends



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1 to dissolve?

2 MR. MUHIC: When you are

3 saying the product, are you

4 referring to anything in particular?

5 Q. The asbestos product, I apologize,

6 Doctor.

7 A. Right.

8 Q. I am only talking about the asbestos.

9 MR. MUHIC: The asbestos

10 product used in the joint compound at

11 issue?

12 MR. dopey defense lawyer: Objection.

13 Q. Right now, I am talking about the

14 asbestos product that was marketed by Union Carbide

15 Corporation?

16 A. Let me be clear, I dont know what

17 asbestos products Union Carbide made, so I dont know any

18 details about them.

19 Q. I believe that I can represent to you

20 that Union Carbide Corporation did not manufacture

21 asbestos-containing products that are at issue in the

22 case. But, Union Carbide Corporation has been identified

23 as a company that supplied asbestos as a material to

24 others?

25 MR. MUHIC: I will object to



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1 some of the characterization.

2 Are you saying that Union

3 Carbide didnt alter any of their

4 product at all before they supplied it

5 to Georgia Pacific or anyone else.

6 MR. dopey defense lawyer: Objection.

7 MR. dopey defense lawyer: Alter, what do you

8 mean?

9 MR. MUHIC: Process did

10 they --

11 MR. dopey defense lawyer: I am sorry. I am

12 not trying to make the assumption that

13 we just dug it out of the ground, put

14 it in a bag and sent it to Georgia

15 Pacific.

16 MR. dopey defense lawyer: Objection.

17 Q. Union Carbide Corporation marketed

18 asbestos to others, okay, whatever that means. I am not

19 trying to represent to you that it is pure natural, or

20 that it was processed or wasnt processed. They are not

21 selling asbestos-containing products. They are selling

22 the asbestos to others.

23 Do you know anything about the asbestos

24 that Union Carbide Corporation marketed?

25 A. No.



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1 Q. Do you know or have any expertise about

2 the obligation of a company like Union Carbide

3 Corporation to provide information to the people that it

4 sells to?

5 A. I dont know the law about that.

6 I mean, I know currently OSHA has

7 regulations about hazard communications, but I dont know

8 going back in time what the legal obligations were.

9 Q. You have no idea -- I apologize.

10 You have no information about what

11 information Union Carbide corporation actually

12 communicated to its customers?

13 A. Thats correct.

14 Q. Do you have any information or evidence

15 from any source that plaintiff plaintiff was actually exposed

16 to asbestos supplied by Union Carbide Corporation over

17 the course of his work-life?

18 MR. MUHIC: Objection to the

19 form.

20 A. As I said before, I dont track

21 particular products that an individual used by brand name

22 or where that asbestos might have come from. So, I would

23 have no information about the role that Union Carbide

24 might have had in terms of his exposure.

25 MR. dopey defense lawyer: Okay.



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1 I am going to pass the witness

2 to give the others a chance.

3 MR. dopey defense lawyer: I pass at this

4 time.

5 MS. Mrs dopey defense lawyer: I just have a few

6 questions.

7 BY MS. Mrs dopey defense lawyer:

8 Q. Good afternoon, Dr. Markowitz.

9 I reviewed your transcript from a

10 deposition that you gave on October 26, 2005.

11 My name is, Marisa Mrs dopey defense lawyer and I represent

12 one of the defendants here.

13 Just a couple of things that you

14 mentioned during that deposition, page 43.

15 You indicated at that time that you work

16 on an hourly basis in connection with asbestos cases.

17 Is that correct?

18 A. Correct.

19 Q. And at that time your rate was $375 an

20 hour.

21 Has that changed since 2005?

22 A. Sure.

23 Q. What is it now, sir?

24 A. $400 an hour.

25 Q. Is that what you are charging for this



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1 case, the plaintiff case?

2 A. Sure.

3 Q. Other than the plaintiff and the plaintiff

4 case, have you worked on any other mesothelioma cases for

5 the year 2007?

6 A. Yes.

7 Q. How many?

8 A. I have no idea.

9 Q. In 2005, you indicated that you usually

10 worked with, I am sorry, that you usually deal with

11 anywhere from ten to 20 cases per year.

12 Was that the same for 2006?

13 A. I dont remember.

14 Q. Do you remember if it was more or less

15 than that in 2006?

16 A. I dont really recall. Probably closer

17 to 20 than ten, but I dont recall beyond that.

18 Q. Thats fine, Doctor.

19 How about 2007?

20 A. The same response.

21 Q. And we are only in February 2008, but

22 have you had any new cases in 2008?

23 A. Sure.

24 Q. About how many?

25 A. Now, you are testing my short-term



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1 memory.

2 I probably put out three or four reports

3 by now.

4 Q. Okay.

5 Since 2005, can you tell me how many

6 cases you have had with Cohen, Placitella & Roth firm?

7 A. About four or five, I think.

8 Q. Since 2005, have you had any cases --

9 strike that. Have you reviewed any cases on behalf of

10 any defendants in asbestos litigation?

11 A. No.

12 Q. Since 2005, have you ever been given a

13 case to review where you concluded that the plaintiff did

14 not have mesothelioma?

15 A. I cant recall any cases where the

16 person did not have mesothelioma, no.

17 Q. So, in other words --

18 A. I mean, you know, when the issue --

19 sometimes the issue is lung cancer. But, I mean, when

20 the issue was mesothelioma, the case usually comes with

21 pathology reports, you know, confirming that they have

22 mesothelioma.

23 Q. And youve never had a case where you

24 disagreed with the prior reports of mesothelioma. Is

25 that correct?



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1 MR. MUHIC: The diagnosis?

2 MS. Mrs dopey defense lawyer: Yes.

3 A. I dont disagree with the pathologists

4 when they say they have mesothelioma. There may have

5 been one or two cases in the last two years where it was

6 unclear whether actually it was a mesothelioma or not.

7 But, that is not a disagreement with the pathologists.

8 That is a question of how much evidence is available.

9 Q. Do you recall where you came down on

10 those one or two cases?

11 A. No. Those were cases where I didnt

12 think there was sufficient information to --

13 Q. I see.

14 A. -- confirm that there was a

15 mesothelioma.

16 Q. Okay.

17 Have you ever had any cases where that

18 you were sent that related to lung cancer, but you

19 concluded that it was mesothelioma instead of lung

20 cancer?

21 A. No. Because, again, 99 percent of the

22 cases are based on pathology and that would be clear

23 before the case -- before I was asked to examine the

24 case.

25 Q. Okay.



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1 Since 2005, Doctor, how many depositions

2 have you given in an asbestos case?

3 A. Two or three including this one. I

4 dont really recall very many.

5 Q. Were they all in New York?

6 A. There was one in New York.

7 Q. Let me -- I am sorry. Let me rephrase

8 that.

9 Were those cases New York cases to your

10 knowledge?

11 A. One was a New York case --

12 Q. Okay.

13 A. -- to my knowledge.

14 I dont recall details about any other

15 asbestos-related depositions in the last two or three

16 years.

17 Q. Do you recall the name of that case?

18 A. It was -- Belluck & Fox was the

19 plaintiffs firm and it was -- I cant remember the

20 defendant, I mean, the lawyer for the defendant.

21 Q. No. But, the name of the case itself?

22 A. I understand. I dont remember the

23 case. Oh, Yanotti, Y-A-N-O-T-T-I. I am pretty sure that

24 was the case.

25 Q. Since 2005, have you given any testimony



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1 in court at trial?

2 A. Sure.

3 Q. In mesothelioma cases, I am sorry, in

4 asbestos litigation?

5 A. Yes.

6 Q. How many times?

7 A. Oh, two or three times per year.

8 Q. Do you recall the names of any of those

9 cases, sir?

10 A. I should, but I dont. I mean, I can

11 provide them, but I just dont --

12 Q. If you could when you get the

13 transcript, just fill in those names. That will be

14 greatly appreciated.

15 A. (Information to be supplied.)

16

17 Q. Do you maintain the transcripts of your

18 deposition or trial testimony?

19 A. No.

20 MR. dopey defense lawyer: Doctor, if you

21 want to write a note on this piece of

22 paper.

23 MS. Mrs dopey defense lawyer: I think at this

24 time these are all the questions that

25 I have.



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1 Thank you very much.

2 MR. MUHIC: Anyone else?

3 MR. HALLBERG: I have a

4 couple.

5 BY MR. HALLBERG:

6 Q. Good afternoon, Dr. Markowitz. My name

7 is Justin Hallberg. I also represent a defendant in this

8 case. I just want to clarify something for the record

9 quickly.

10 Are you certain that soapstone

11 countertops were used at the Warner-Lambert facility?

12 A. I only know what Mr. plaintiff reported.

13 Q. Okay.

14 So you just -- thats it.

15 MR. HALLBERG: No further

16 questions.

17 MR. MUHIC: Patrick, are you

18 the only one questioning when we come

19 back?

20 MR. dopey defense lawyer: All in favor of

21 lunch.

22 If anyone has a short period

23 of questions, you want to do it before

24 lunch?

25 Lets take lunch.



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1 (A lunch recess was taken.)

2 BY MR. HARKINS:

3 Q. Good afternoon, Doctor, my name is

4 Patrick Harkins. I represent Novartis Pharmaceuticals.

5 Theres been discussion today about a

6 deposition transcript that was provided to us yesterday

7 in which you testified in the Norman Mass and Jay

8 Fleckner cases.

9 Do you recall that testimony --

10 A. Yes.

11 Q. -- from October of 2005?

12 A. Yes.

13 Q. Did you actually review your transcript

14 of that testimony after you grave it?

15 A. No.

16 Q. You did not.

17 A. No.

18 Q. Well, I have no desire to cover the

19 questions that were asked of you in there other than I

20 want to confirm with you here today that some of the

21 testimony you gave there is testimony that you would

22 stand by today.

23 Do you understand my question?

24 A. Sure.

25 Q. Do you have a copy, Peter, that you can



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1 give him and I will point out the sections I want to ask

2 him about?

3 MR. MUHIC: You are not going

4 to ask to see any notes that I have?

5 MR. HARKINS: No, I wont.

6 MR. MUHIC: Okay.

7 Q. I realize it is going to take you a

8 while to read it. So, what I will do is I will point out

9 to you the pages that I want you to review, and then the

10 question at the end of your reading it will simply be

11 whether you stand by that testimony.

12 A. Sure.

13 Q. Will you turn, please, to page 32.

14 Do you have that in front of you?

15 MR. MUHIC: I just want to

16 make sure we have the same copies. I

17 have got one that has page numbers on

18 the bottom.

19 MR. HARKINS: I have a mini

20 script.

21 Peter why dont you look at

22 it, and I will tell you what I am

23 looking for. I have a number at the

24 top and a number at the bottom. I am

25 looking for the page that has the



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1 number at the bottom 29, and it starts

2 at line 25 with a question Would it

3 be fair to say, all right?

4 MR. MUHIC: Dr. Fleckners

5 father?

6 MR. HARKINS: Yes.

7 MR. MUHIC: Are you going to

8 read that question?

9 Q. I want you to start reading with that

10 question, Dr. Markowitz, and I would like you to read

11 through your testimony beginning with that testimony all

12 the way over to page 32, using the bottom numbers, line

13 11, ending with the words the products?

14 Do you see that?

15 A. Yes.

16 MR. HARKINS: Peter, could you

17 just highlight that?

18 MR. MUHIC: Yes, okay.

19 Q. Okay. Read that material.

20 (Pause in proceedings.)

21 A. Sure. I agree with that.

22 Q. So, you stand by that testimony?

23 A. Sure.

24 Q. Let me move over to this case today.

25 Am I correct that in this case you would



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1 agree with the statement that information about

2 Mr. plaintiff intensity, duration and proximity of exposure

3 to asbestos-containing materials is as equally important

4 in determining his risk of mesothelioma as well as the

5 cause of his mesothelioma?

6 MR. MUHIC: Objection to the

7 form of the question.

8 A. I dont understand your question.

9 Equally as important as what?

10 Q. As the testimony you gave in that prior

11 case?

12 A. In that prior case, I was talking about

13 a household exposure in which it is known there are

14 certain settings in which mesothelioma can occur from the

15 household exposure. But, its less -- the literature on

16 that is less deep than it is, say, on the construction

17 industry, the kind of work that Mr. plaintiff did.

18 In general, though, I do aim to

19 determine the intensity, duration and frequency of

20 exposure or potential exposure to asbestos when I judge

21 the contribution of the exposure to disease.

22 Q. Okay.

23 So, maybe the word equally important is

24 what threw us off.

25 But, you would agree with me that those



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1 principals that you just discussed, intensity, frequency,

2 duration, proximity are relevant to any assessment of an

3 individuals exposure to asbestos in relation to

4 mesothelioma?

5 MR. MUHIC: Objection to the

6 form.

7 A. Thats correct. That being, intensity

8 and intimacy or directness of contact are equivalent,

9 but, yes to the extent that information is available.

10 Q. Right.

11 Are all of those factors fairly grouped

12 under the principle of dose response?

13 A. Yes.

14 Q. Now, earlier this morning when you were

15 testifying, you were asked the question whether as part

16 of your understanding of what you were to do in this case

17 you were asked whether you examined which products caused

18 Mr. plaintiffs mesothelioma?

19 Do you recall that?

20 A. I was asked a question about that, yes.

21 Q. And I think your answer was, no. That

22 wasnt something you were specifically asked to do?

23 A. That is correct.

24 Q. Were you asked in this case to determine

25 which of Mr. plaintiffs alleged job site exposures



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1 contributed to causing his mesothelioma?

2 A. No.

3 Q. You testified a couple of times, I

4 believe, about Mr. plaintiffs exposure at a church.

5 Do you recall that?

6 A. I recall him either in the

7 interrogatories or the deposition saying that he

8 worked -- a reference to him having worked at a church.

9 Q. Okay.

10 What else can you tell us that you

11 recall about that exposure?

12 A. Nothing. I dont recall anything else.

13 Q. Did his work at the church in any way

14 factor into your opinions in this case?

15 A. No. It was listed as a job site. He

16 was a carpenter. But, again, I didnt focus on

17 particular job sites or products.

18 Q. Okay.

19 Let me represent to you that

20 Mr. plaintiffs testimony concerning his exposure at the

21 church consisted of an exposure that occurred very early

22 in the 1960s, and it involved him personally sawing

23 transite asbestos-containing board.

24 Are you familiar with that product?

25 A. Yes.



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1 Q. Knowing that, would you consider that to

2 have been a significant exposure that contributed to his

3 mesothelioma?

4 MR. MUHIC: Objection to the

5 form.

6 A. Well, again, I would like to hear more

7 details about that. Was that done a single time, was it

8 done repeatedly and over what period of time.

9 However, as I said before, the person

10 who has mesothelioma of the pleura when it is due to his

11 occupational exposure, I do think that each and every

12 exposure that he had, in essence, contributed to that

13 disease. But, I would like to hear more detail about

14 that exposure.

15 Q. Without pulling out the transcript, I

16 can tell you from memory that I believe he testified that

17 he did that type of work for at least a one-week period

18 as part of the construction of the church, and

19 specifically the material was being sawed in order to

20 make facia boards that went on the various parts of the

21 building. Thats the additional detail.

22 Does that constitute a significant

23 exposure in your opinion?

24 MR. MUHIC: Objection to the

25 form.



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1 A. Well, I dont want to get hung up on

2 language here. That did contribute to his exposure that

3 caused his disease. I cant rule out that as an exposure

4 that contribute.

5 Q. If I add to that detail that the

6 material probably contained crocidolite asbestos in

7 addition to chrysotile asbestos, does that also indicate

8 to you that that exposure was significant?

9 MR. MUHIC: Objection to the

10 form.

11 A. Well, it becomes, I suppose, slightly

12 more important than had it been chrysotile alone. But,

13 again, you are talking about really a career of exposure,

14 many different products. I would say it contributed to

15 his overall exposure which caused his mesothelioma.

16 Q. In your opinion, would the sawing of a

17 crocidolite-containing sheet board with no protections

18 have been a greater substantial contributing factor in

19 causing his mesothelioma than any other of his exposures?

20 MR. MUHIC: Objection to the

21 form.

22 A. No. You have to get into the other

23 factors, how long was it done, what frequency, etc.

24 Q. Now, in your earlier testimony, there

25 were several occasions where you were asked questions



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1 that either included this term or you gave responses that

2 included this term, and the term was significant used in

3 the context of exposure.

4 Do you recall that line of questioning

5 and answers?

6 A. No.

7 MR. MUHIC: I am just going to

8 make a note that when the term

9 significant has been used in the

10 question, I have objected to the form

11 because I dont think that it is clear

12 as being referred to as significant as

13 you used the term yourself.

14 MR. HARKINS: Thats a good

15 point.

16 Q. Doctor, could you look at Exhibit B,

17 please, that is in the folder in front of you?

18 A. Its my report?

19 Q. Yes, sir.

20 If you can turn to the last page, it has

21 your signature?

22 A. Sure.

23 Q. You give your conclusion there, I

24 believe?

25 A. That is correct.



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1 Q. And you say in conclusion Mr. plaintiff

2 plaintiff had significant exposure to asbestos, correct?

3 A. Thats correct.

4 Q. What does significant mean in that

5 context?

6 A. It really is to summarize the fact

7 that -- in this case the facts are that he had many years

8 of exposure to asbestos from a variety of materials in

9 both direct and indirect contact.

10 Q. Its a qualitative definition as opposed

11 to a quantitative, correct?

12 A. Thats correct.

13 Q. Is there any data that you rely upon in

14 forming your opinion that his exposure was significant as

15 you have used that term in your report and defined it for

16 us?

17 A. Not specifically.

18 Q. What medical articles are you relying

19 upon for the proposition that his exposure was

20 significant?

21 A. Well, I relied on the epidemiologic

22 studies which show that people who have been exposed to

23 asbestos for years and decades develop mesothelioma at

24 much higher rates than people who dont have such

25 exposure, and that that proves, in combination with other



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1 evidence, that those exposures causes mesothelioma.

2 Q. Do you have any information in this case

3 that indicates that the exposures that Mr. plaintiff

4 experienced to asbestos while working at either the

5 Sandoz or Ciba-Geigy job sites was similar to the

6 exposures that are in the literature that you have in

7 mind?

8 A. He described at those facilities

9 participating in or being in the vicinity of rip out and

10 construction renovation use of some of the materials that

11 we discussed before including joint compound and others.

12 That kind of description mimics the kinds of studies that

13 establish that asbestos causes mesothelioma.

14 Q. Do you have in mind that Mr. plaintiff

15 testified that he was exposed to asbestos during rip-out

16 operations at either the Sandoz or Ciba-Geigy job sites?

17 A. I dont know that he testified that he

18 knew that he was exposed to asbestos at the time. But.

19 He was involved or closely related to rip out at one or

20 other of those facilities, and I dont quite have the

21 facilities straight in terms of where the rip out

22 occurred, and that the rip out of those construction

23 materials likely lead to his exposure to asbestos.

24 Q. If I were to tell you that there is no

25 information in this case, theres no testimony, theres



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1 no certificate from Mr. plaintiff that he was around rip-out

2 operations at either Sandoz or Ciba-Geigy, would that

3 change your opinion?

4 A. Sure.

5 If he stated that he was not in any way

6 involved with or near rip out in terms of the subsequent

7 renovation work that he did, then it wouldnt be

8 relevant.

9 Q. All right.

10 If we put that aside as not relevant,

11 then what other studies are you relying upon as relevant

12 to reach the conclusion that Mr. plaintiffs exposure at the

13 Sandoz and Ciba-Geigy job sites was significant and,

14 therefore, contributed to cause his mesothelioma?

15 A. Sure.

16 My understanding is that he worked as a

17 carpenter at those facilities, and setting aside the

18 issue of rip-out work, at a minimum with joint compound

19 and possibly some other asbestos-containing materials,

20 and that, sure, working at those facilities for a number

21 of months in the 1960s and 70s would have led to

22 exposure to asbestos that contributed to the development

23 of his mesothelioma.

24 Q. What studies are you relying upon?

25 A. I am relying upon the body of



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1 epidemiology showing that construction workers develop

2 mesothelioma at excess rates as a result of the work they

3 do in construction, and it referred to a broad number

4 construction trades.

5 Q. Are you assuming, in forming your

6 opinion, that Mr. plaintiffs exposures at the Sandoz or

7 Ciba-Geigy jobs sites was similar to the exposures that

8 are identified in the literature involving construction

9 workers?

10 A. I am not sure similar is the right word.

11 But, that there is sufficient information about the way

12 in which construction work leads to asbestos exposure and

13 that such exposure causes mesothelioma, then it is

14 appropriate to state that his type of exposure to

15 asbestos-containing materials did lead to airborne

16 asbestos in a manner that caused his mesothelioma.

17 Q. All right.

18 I understand your question -- your

19 response. I want to make sure you understand my

20 question.

21 I am asking you here today if you can

22 identify for me that literature either by the name of the

23 article, its author, title, the year it was published,

24 whatever information you have in your mind, as you sit

25 here today, in relation to that response?



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1 A. I am not really prepared to site

2 specific articles. I mean, the issue of construction

3 work and asbestos-related disease theres a really large

4 literature in relation to that, in relation to

5 insulators, sheet metal workers, electricians, carpenters

6 and other types of trades in studies of malignant

7 mesothelioma, case control studies, in which large

8 numbers of cases are studied, and they look at the

9 background occupational profiles of the cases of

10 mesothelioma in relation to controls. Construction work

11 is often identified as leading to increased risk of

12 mesothelioma. Thats the basis for saying that the

13 construction work and the associated asbestos exposures

14 lead to excess rates of disease of mesothelioma, and in

15 this instance caused his disease.

16 Q. In your original report in this case,

17 which has been marked as, I believe, Exhibit F. The

18 court reporter is saying that is correct.

19 A. I am sorry?

20 Q. The January 4th Affirmation.

21 A. Okay.

22 Q. In that document, you make reference to

23 numerous articles.

24 A. Correct.

25 Q. Do any of those articles, in your



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1 opinion, form the basis for your prior response?

2 Do you understand my question?

3 A. Sure.

4 Well, the Welch article certainly

5 includes exposure to asbestos in the construction

6 industry.

7 Q. So, that would be one article that you

8 can site as responsive to my earlier question about

9 identifying a specific article?

10 A. I think it contributes to the

11 literature, sure.

12 Q. I am not asking if it contributes to the

13 literature. I want to know if the Welch study, as listed

14 in your Affirmation, Exhibit F, is a study that you

15 relied upon to form your opinion that Mr. plaintiff

16 sustained a significant exposure to asbestos at the

17 Sandoz or Ciba-Geigy job sites that contributed to cause

18 his mesothelioma?

19 A. Well, I rely on my general knowledge of

20 the occupational medicine literature. I mean, if you

21 want some specific examples, we could talk about the

22 insulator studies that Dr. Selikoff did or the sheet

23 metal workers that a variety of groups did. Selikoff did

24 one of those. There were some done by Rosenstock in

25 Washington State. There were studies of school



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1 custodians done by Chris Oliver in Boston, and others by

2 Steve Levin at Mount Sinai, and Balmes did an additional

3 one out in San Francisco, and there are studies of other

4 construction trades as well that showed that they

5 developed an increased risk of increased rates of

6 mesothelioma due to their occupational exposure to

7 asbestos in the construction setting.

8 Q. So, we have insulator studies done by

9 Selikoff, custodial studies done by Christine Oliver, and

10 Baums and Steve Levin.

11 What was the last one? I am sorry?

12 A. Electricians, I dont think I cited a

13 specific source.

14 Q. All right.

15 A. But, anyway I didnt come prepared

16 today, frankly, to site all the construction articles

17 that are relevant to this because this is well

18 established within the medical literature that that

19 setting entails significant exposure to asbestos.

20 Q. Well, you have given me some names.

21 That is helpful. Before we put Exhibit F aside, are

22 there any such study you list in Exhibit F that falls

23 into the category of being a study that you rely upon for

24 exposure data that you believe indicates that Mr. plaintiff

25 sustained a significant exposure to asbestos at the



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1 Ciba-Geigy or Sandoz job site?

2 MR. MUHIC: Objection to the

3 form.

4 A. Those other studies really dont involve

5 constriction workers.

6 Q. Okay?

7 A. There probably are some construction

8 worker studies in the Boffetta study, but I dont recall

9 the details.

10 Q. So, Ive got Selikoff insulator studies

11 and Ive got Oliver, Balmes and Levin custodian studies.

12 Those are the two that you can tell me about today?

13 A. Maybe I misspoke. The Levin study was

14 separate from the Oliver study which was separate from

15 the Baum study.

16 Q. Okay.

17 So, each of those three researchers did

18 their own studies?

19 A. Right. Those of school custodians.

20 Q. All three custodian?

21 A. Those three studies were of custodian.

22 Of sheet metal workers, I mentioned Rosenstock in

23 Seattle, and Selikoff also studied sheet metal workers,

24 Schwartz from Iowa studied sheet metal workers and others

25 as well.



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1 Q. Schwartz, Rosenstock, Balmes, Levin, and

2 Rosenstock.

3 Can you recall, as you sit here today,

4 what the range of exposures to asbestos were documented

5 in those studies?

6 MR. MUHIC: Objection to the

7 form.

8 A. No.

9 Most of those studies didnt measure the

10 asbestos level in the air.

11 Q. Did they estimate?

12 A. No. Most of them did not.

13 Q. Did they provide any exposure data?

14 A. Duration of employment.

15 Q. So, these are not studies that provide

16 actual exposure data that you rely upon, just duration of

17 work history around asbestos, correct?

18 MR. MUHIC: Objection to the

19 form.

20 A. No. Duration does represent exposure

21 data.

22 Q. Well, are you saying that if person A

23 works five years as an insulator and person B works 25

24 years as an insulator that they are going to have the

25 same exposure?



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1 A. No.

2 What I am saying is that duration, the

3 number of years, tells you something about the exposure,

4 and I would call that data.

5 Q. All right.

6 What information about duration in these

7 studies is relevant to Mr. plaintiffs exposure at the

8 Ciba-Geigy and Sandoz job sites?

9 A. They generally demonstrated dose

10 response relationship, meaning, that the higher the

11 exposure to asbestos the greater the risk of developing

12 disease.

13 Q. How long did Mr. plaintiff work at the

14 Ciba-Geigy job site?

15 A. As I recall, he was there about a year

16 or two.

17 Q. How frequently was he exposed to

18 asbestos?

19 A. He performed -- that question wasnt

20 asked in the deposition.

21 Q. How regularly --

22 A. But, he did carpentry work there

23 involving the usual materials that he worked with.

24 Q. So, theres no frequency information

25 available?



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1 MR. MUHIC: Objection to the

2 form.

3 A. Theres no specific frequency

4 information.

5 There is known that he worked as a

6 carpenter at that facility making partitions and other

7 carpentry-type work at that facility. But, did I see

8 that he -- in the material available to me, that he had a

9 number on the frequency for a given task. I didnt see.

10 Q. What information is there regarding the

11 regularity of his exposure to asbestos at the Ciba-Geigy

12 job site?

13 MR. MUHIC: Objection.

14 Do you want to define what you

15 mean by regularity?

16 Q. Was it regular?

17 MR. MUHIC: Meaning? How do

18 you define regular?

19 Q. Well, you understand what I mean when I

20 use the term regular, dont you?

21 MR. MUHIC: I want to make

22 sure.

23 A. I dont distinguish between regular and

24 frequent events, so I am not sure if you are asking a new

25 question or not.



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1 Q. You have used the term regular in

2 reference to exposure of an occupational nature in your

3 prior reports in asbestos litigation as well as in your

4 testimony, correct?

5 A. Sure.

6 Q. And you equate frequency and regular

7 synonymously?

8 A. No. I said regularity and frequency --

9 Q. Regularity, okay.

10 What information is contained in the

11 studies by Selikoff through Schwartz that addresses the

12 intensity of exposure that is relative to Mr. plaintiffs

13 exposure at Ciba-Geigy?

14 A. The insulators being exposed to the most

15 intense levels of asbestos tended to have the higher

16 rates of disease, malignant and nonmalignant, compared

17 to, say, sheet metal workers who work both directly and

18 indirectly, but at less intense levels than, say, the

19 insulators, and thats true for the electricians. So,

20 you see lower rates of disease among these other trades

21 with lower levels of exposure.

22 Q. I have been asking you about his

23 exposures at Ciba-Geigy, correct?

24 A. Correct.

25 Q. If I were to ask you the same series of



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1 questions about his exposures at the Sandoz facility,

2 would your answers be any different?

3 A. No.

4 I believe also he had worked there

5 somewhere between eight, 12 months and two years. I

6 dont recall the specifics, but it was an appreciable

7 amount of time.

8 Q. You listed in Exhibit B, your new report

9 of February 26, 2008, the five items that you reviewed,

10 correct?

11 A. Correct.

12 Q. And you were asked specifically. Was

13 there any other information that you relied upon, and I

14 believe your response was there was no other information

15 you got from any other source. Correct?

16 A. Thats correct.

17 Q. Let me ask you, have you reviewed any of

18 the other expert reports, affidavits, affirmations,

19 certificates, whatever they are called, that had been

20 filed in this litigation?

21 A. This morning, I was given a report or

22 Affidavit from Jerrold Abraham, but I really havent had

23 time to review it.

24 Aside from that, I have been given

25 nothing.



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1 Q. So, I want to make sure I am clear.

2 Is there anything that -- you havent

3 had time to look at the Abraham report at all?

4 A. I skimmed it, but --

5 Q. You skimmed it --

6 A. -- thats about it.

7 Q. Okay. So --

8 A. I am not prepared to express an opinion

9 about it.

10 Q. Thats what I wanted to rule in or rule

11 out is whether theres anything in that report that you

12 rely upon as the basis for your opinions in the plaintiff

13 case. If there is, then I would like to go into that.

14 But, if you havent had a fair chance to look at it,

15 then, obviously, it would be a waste of time.

16 A. Well, obviously, I expressed my opinions

17 in my report without seeing the Abraham Affidavit, so,

18 obviously, I havent relied upon it.

19 Q. Okay.

20 A. I cant really comment on it because I

21 havent read it thoroughly.

22 Q. All right.

23 Do you remember being asked a series of

24 questions and giving responses on the topic of soapstone

25 countertops?



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1 A. Yes.

2 Q. And I believe in the course of giving

3 your responses youve referenced as the basis for your

4 opinion the fact, as indicated in Mr. plaintiffs

5 Certification, that he quote often installed soapstone

6 countertops, close quote, correct?

7 A. That was part of the basis of my

8 opinion.

9 Q. Am I correct that you consider the

10 representation by Mr. plaintiff that he often installed

11 soapstone countertops as evidence that he frequently

12 installed soapstone countertops?

13 A. Yes.

14 Q. Okay.

15 What I didnt hear you discuss at all

16 was the following entry in the Certification, and I will

17 read it into the record.

18 Although the countertops were

19 pre-cut, sanding was sometimes

20 necessary to fit the countertops

21 properly.

22 Do you see that, those words --

23 A. Yes.

24 Q. -- in the Certification?

25 A. Correct.



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1 Q. Would you agree with me that Mr. plaintiff

2 did not frequently sand the soapstone countertops?

3 MR. MUHIC: Objection.

4 MR. HARKINS: What is the

5 objection?

6 MR. MUHIC: You want me to

7 explain?

8 MR. HARKINS: Yeah.

9 MR. MUHIC: All right.

10 Because if he says how often and you

11 dont know the specific number --

12 (Interruption by phone.)

13 MR. MUHIC -- sometimes is

14 still maybe he didnt do it

15 frequently?

16 MR. HARKINS: Thats an

17 objection?

18 MR. MUHIC: Maybe he put --

19 MR. HARKINS: Thats your

20 objection?

21 MR. MUHIC: I am objecting to

22 the form of your question. You want

23 to know?

24 MR. HARKINS: Okay.

25 MR. MUHIC: I think the way



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1 that you are twisting the words is not

2 clear.

3 Q. Doctor, what do you think the word

4 sometimes means?

5 A. You have to be more specific about that.

6 Q. Why dont you put the Certification in

7 front of you and we will read it together word by word.

8 You got it?

9 A. Yes.

10 MR. MUHIC: And let me tell

11 you, I am objecting to the word

12 sometimes. Your question is not

13 clear.

14 MR. HARKINS: You are

15 objecting to the Certification?

16 MR. MUHIC: I said your

17 question is what I objected to.

18 Q. Doctor, could you refer yourself to the

19 line in question?

20 A. Sure. I am looking.

21 Q. Tell me what you understand the word

22 sometimes to mean as used by Mr. plaintiff?

23 A. Let me quote directly.

24 As I indicated in my

25 testimony, I often installed soapstone



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1 countertops in the laboratories.

2 Although the countertops were pre-cut,

3 sanding was sometimes necessary to fit

4 the countertops properly. I had to

5 fit the countertops together with the

6 epoxy. Then I had to sand the epoxy

7 and the top of the countertops until

8 they were smooth.

9 End of quote.

10 Q. My question is different.

11 Youve read the Certification

12 word-for-word?

13 A. Sure.

14 Q. My question to you is simply this, what

15 do you understand the word sometimes to mean?

16 A. Sure.

17 I take it that he did perform two

18 operations on the soapstone countertops. One was to fit

19 them together. They were pre-cut. Sometimes when he fit

20 them together he needed to sand them. He also put epoxy

21 to fit the countertops together and after putting the

22 epoxy on he also had to sand the epoxy in the tops of the

23 countertops until they were smooth. I take that to be a

24 separate operation from simply fitting them together.

25 So, I take the word that he said he often installed to



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1 represent these two functions. He described the

2 frequency on one of the functions, the fitting together.

3 He didnt describe the frequency on the other one which

4 is the use of epoxy and subsequent sanding.

5 Q. So, you would agree with me that, at

6 least as you interpret the word sometimes, Mr. plaintiff did

7 not frequently sand the soapstone countertops?

8 MR. MUHIC: Objection.

9 A. No. I can only repeat the words he

10 used. I cant interpret what he meant by sometimes in

11 terms of frequency.

12 Q. All right.

13 But, you can interpret what he means by

14 the words often installed?

15 A. Well, to me, yes. I think often meant

16 he frequently did it. The problem is, he did these two

17 functions. One of them he did sometimes. The other. We

18 dont know how often he did it.

19 Q. The other one is which?

20 A. The other is applying the epoxy and then

21 subsequently sanding it. So, I dont know quite what it

22 adds up to in terms of frequency. That is all.

23 Q. Okay.

24 So, we dont know how many times

25 Mr. plaintiff sanded soapstone, do we?



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1 A. No.

2 Q. Do we know how long a period of time he

3 sanded soapstone?

4 MR. MUHIC: Do you mean --

5 Q. As the watch flies.

6 MR. MUHIC: No. I am asking

7 how long each piece he would have

8 sanded, how long a period of time over

9 the course --

10 MR. HARKINS: Well, thats as

11 the watch flies.

12 MR. MUHIC: -- at Ciba-Geigy?

13 Q. Let me make sure we understand each

14 other.

15 From Mr. plaintiffs Certification, can you

16 reach any conclusion as to how long a period of time in

17 seconds, minutes, hours or days he actually sanded

18 soapstone countertops?

19 A. No.

20 Q. From Mr. plaintiffs Certification, can you

21 make any reasonable conclusion as to how much of either

22 the epoxy or the countertop in quantity measured either

23 in micrometers, meters, inches, feet he actually sanded?

24 A. No.

25 Q. From Mr. plaintiffs Certification, can you



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1 reasonably conclude what the intensity of his exposure to

2 asbestos was at any time he sanded the soapstone

3 countertops or the epoxy?

4 MR. MUHIC: Objection to the

5 form.

6 A. Not quantitatively.

7 Q. Okay.

8 A. He did say it created dust and that he

9 inhaled this dust, so clearly the material that soapstone

10 consisted of became airborne. But, I cant give you --

11 put a number on it.

12 Q. What part -- let me get into this

13 because this is something that you talked about a lot.

14 You just mentioned dust.

15 When you say dust, what do you mean?

16 A. I usually -- dust means particles. I

17 usually refer to airborne dust. In this case, since it

18 is based on report of workers, it is a visible dust they

19 see in the air.

20 Q. Do you have an opinion as to the

21 particles, the size, that any material has to be in order

22 to constitute dust?

23 A. No. You can have very small particles

24 that are represented by dust.

25 Q. Have you ever seen a soapstone



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1 countertop sanded?

2 A. No.

3 Q. Do you know how Mr. plaintiff actually

4 sanded the soapstone countertop as he described it in his

5 certification?

6 A. No. He doesnt say.

7 Q. Do you know if he sanded it

8 mechanically?

9 A. He doesnt say.

10 Q. Okay.

11 Do you know whether it has ever been a

12 practice of carpenters to mechanically sand soapstone

13 countertops?

14 A. I dont know.

15 Q. Do you know if it has ever been a

16 practice of carpenters to manually sand a soapstone

17 countertop with perhaps a piece of sandpaper and a block

18 applied to the paper?

19 A. No, I dont.

20 Q. So, you dont know anything about how

21 Mr. plaintiff actually sanded the soapstone countertops from

22 his Certification, correct?

23 MR. MUHIC: Objection to the

24 form.

25 A. I know what is in the Certification



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1 which we have already read.

2 Q. Are you aware of any published data in

3 the literature that describes asbestos exposure that is

4 known to occur during the sanding of a soapstone

5 countertop containing asbestos?

6 A. No.

7 Q. Do you know of any study that discusses

8 the amount of asbestos that is released from the sanding

9 of a soapstone countertop, not in quantitative terms, but

10 in qualitative terms?

11 A. No.

12 Q. Do you know what soapstone countertop is

13 actually made of?

14 A. No.

15 Q. Do you know if it is a naturally

16 occurring material which is then fabricated into the

17 actual countertop?

18 A. I believe so, but I am not sure.

19 Q. What is the basis for your belief?

20 A. General knowledge.

21 Q. Have you read things on that?

22 A. No.

23 Q. Okay.

24 What is the basis for your general

25 knowledge?



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1 A. I cant recall a specific source.

2 Q. What size does asbestos-containing

3 material not become airborne?

4 MR. MUHIC: Objection to the

5 form.

6 Q. Do you understand my question?

7 A. Not exactly.

8 Q. Okay.

9 How small must a particular material

10 containing asbestos be before it can get up into a

11 persons breathing zone?

12 MR. MUHIC: Objection to the

13 form.

14 A. I dont know that.

15 It depends on how much force is a

16 applied to the dust in order to cause it to be airborne.

17 Q. Okay.

18 Have you ever seen any of the studies

19 done by particle physicists that describe the amount of

20 force necessary to make an asbestos-containing material

21 airborne?

22 A. No.

23 Q. Assuming asbestos-containing material is

24 airborne, is there a size cut off after which it will not

25 be respirable?



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1 MR. MUHIC: Objection to the

2 form.

3 A. Generally above ten to fifteen microns

4 it would have a difficult time getting into the

5 respiratory tract, certainly the lower respiratory tract.

6 Q. And if material does not get into the

7 lower respiratory tract it, therefore, is not capable of

8 contributing to cause mesothelioma?

9 MR. MUHIC: Objection to the

10 form.

11 A. Thats correct.

12 Q. You said the cutoff point is somewhere

13 between ten and 15 micrometers?

14 A. Ten to fifteen microns.

15 Q. Microns.

16 Are you referring to length or width?

17 A. Length.

18 Q. Length?

19 A. Length. It may be 20. I dont quite

20 recall --

21 Q. Okay.

22 A. -- but it is in that range.

23 Q. To your knowledge, did Mr. plaintiff do

24 anything besides sand the epoxy and the countertops.

25 MR. MUHIC: Objection.



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1 Q. I asked that because in response to

2 questions that were asked of you earlier, in a couple of

3 instances youve responded by saying that manipulation in

4 any way creates dust.

5 My more direct question, I guess would

6 be, are you aware of any other activity that Mr. plaintiff

7 claims to have engaged in with respect to soapstone

8 countertops, other than sanding, that would have resulted

9 in a manipulation in any way?

10 A. I understand your question.

11 Q. Okay.

12 A. Not that I know of.

13 Q. Asked more directly, to your knowledge,

14 he didnt saw soapstone countertops, correct?

15 A. Not that I saw anywhere in his

16 deposition.

17 Q. He didnt cut it?

18 A. Same answer.

19 Q. He didnt drill it?

20 A. I dont have any evidence that he did

21 that.

22 Q. Okay.

23 Now, in paragraph 3 of Mr. plaintiffs

24 Certification, he discusses the installation of doors.

25 Do you see that?



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1 A. Correct.

2 Q. Is that information that you rely upon

3 with respect to his exposure to asbestos at Ciba-Geigy

4 and/or Sandoz?

5 A. No.

6 Q. Why not?

7 A. Because I dont know what kind of doors

8 he was talking about or whether they contained asbestos

9 or not.

10 Q. Do you know whether any doors contain

11 asbestos?

12 MR. MUHIC: Any doors where?

13 MR. HARKINS: Anywhere.

14 A. I havent heard about doors containing

15 asbestos.

16 Q. You have or you have not?

17 A. I have not.

18 Q. Okay.

19 Do you recall being asked questions and

20 giving responses on the topic of fiber type potency

21 differences?

22 A. Sure.

23 Q. During the course of that questioning, I

24 thought I heard you refer to a World Health Organization

25 1998 publication.



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1 Do you remember that?

2 A. Yes.

3 Q. What were you referring to?

4 A. The criteria document on chrysotile.

5 Q. Let me hand you this and ask you, is

6 that what you are referring to (indicating)?

7 A. If I recall properly, yes.

8 MR. MUHIC: Do you want to

9 mark that?

10 MR. HARKINS: Sure.

11 (Defendants Exhibit G was

12 marked for identification.)

13 Q. Could you turn to your original

14 Affirmation, Exhibit F, and look at paragraph 13, please.

15 A. Okay.

16 Q. In there, you have two references to WHO

17 1998.

18 A. Correct.

19 Q. Do you see that?

20 A. Yes.

21 Q. Is what we have marked as Exhibit G the

22 WHO 1998 that you had in mind in paragraph 13 of your

23 Affirmation?

24 A. Yes.

25 Q. Let me read to you something from WHO



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1 1998 --

2 MR. MUHIC: Could you state

3 for the record what page?

4 MR. HARKINS: Yes.

5 Q. I am in the summary section, page 6, the

6 second full paragraph it reads, quote

7 The ability of fibers to

8 induce fibrogenic and carcinogenic

9 effects appears to be dependent on

10 their individual characteristics,

11 including fibre dimension and

12 durability (i.e., biopersistence in

13 target tissues), which are determined

14 in part by the physico-chemical

15 properties.

16 Do you agree with that?

17 A. Yes.

18 Q. It reads further from the same

19 paragraph, quote

20 It has been well documented

21 in experimental studies that short

22 fibres (shorter than 5 microns) are

23 less biologically active than longer

24 fibres (longer than 5 microns).

25 Do you agree with that?



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1 A. I am not really familiar with those

2 things.

3 Q. The next sentence in the same paragraph

4 reads

5 It is still uncertain,

6 however, whether short fibres have any

7 significant biological activity.

8 Do you agree with that.

9 A. No.

10 Q. Why not?

11 A. Because the short fibers are part of the

12 fiber distribution that workers have been exposed to over

13 time, and we know such workers develop mesothelioma, lung

14 cancer and other asbestos-related diseases. I see no

15 basis on which to exclude such fibers in the causation

16 unless there are particular studies in humans that show

17 that such fibers of short length are innocuous. I see no

18 basis for excluding them at the moment.

19 Q. Are you familiar with a document

20 entitled Report on the Expert Panel on Health Effects of

21 Asbestos and Synthetic Vitreous Fibers: The Influence of

22 Fiber Length, prepared for the Agency For Toxic

23 Substances and Disease Registry, Division of Health

24 Assessment and Consultation, Atlanta Georgia, March 17,

25 2003, prepared by the Eastern Research Group.



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1 A. I have seen it.

2 Q. When you say you have seen it, did you

3 read it?

4 A. Yeah. I have read it. I dont recall

5 every word of it, but I have read it.

6 Q. Let me read it to you, and we will mark

7 it as an exhibit, page v, small v, under Executive

8 Summary. There are a series of bullets. The first

9 bullet reads

10 Factors that influence

11 toxicity. Health effects from

12 asbestos and SVFs ultimately are

13 functions of fiber dose, fiber

14 dimension (length and diameter ), and

15 fiber durability or persistence in the

16 lung (as determined by the mineral

17 type, the amorphous or crystalline

18 structure, and the surface chemistry).

19 Do you agree with that?

20 There are a lot of words. I will hand

21 it to you, so you can read it to yourself.

22 MR. MUHIC: Objection to the

23 extent that things are being taken out

24 of context in an article here.

25 A. Well, I dont see that this particular



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1 statement whether it refers to humans or animals to tell

2 you the truth --

3 Q. Okay.

4 A. -- so, I cant really comment on it.

5 Q. All right.

6 I want you to assume that it refers to

7 humans.

8 Can you comment on it?

9 A. I think that its lack of detail or

10 discussion in that particular sentence makes it difficult

11 to endorse.

12 Clearly, health effects of asbestos are

13 related to fiber dose. The issue of dimension and the

14 issue of durability are much more difficult issues, much

15 less certain issues, and I dont think that it is

16 amenable to an easy kind of summary statement like that.

17 MR. HARKINS: Lets mark this

18 Exhibit H.

19 (Defendants Exhibit H was

20 marked for identification.)

21 Q. Let me read to you from page vi of

22 Exhibit H that you were just looking at, and I will hand

23 it to you afterwards as well.

24 Cancer effects of short

25 fibers. Given findings from



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1 epidemiological studies, laboratory

2 animal studies, and in vitro

3 genotoxicity studies, combined with

4 the lungs ability to clear short

5 fibers, the panelists agreed that

6 there is a strong weight of evidence

7 that asbestos and SVF shorter than 5

8 microns are unlikely to cause cancer

9 in humans.

10 Do you agree with that statement?

11 A. No, I dont.

12 Q. What is the basis for your disagreement?

13 A. Because epidemiologic studies havent

14 been able to address the issue of fiber length because

15 the studies are mostly of death or incidence of disease

16 among workers without complete understanding of what the

17 length of fibers that people were exposed to or that

18 appear even at the time of death. So, I dont think that

19 the epidemiologic studies -- you can make that statement

20 based on the existing epidemiology at all.

21 Q. And that is because in your view no such

22 epidemiologic studies exist?

23 A. No. I wouldnt say that.

24 Q. Let me --

25 A. It is --



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1 Q. I want to make sure we are

2 understanding.

3 Youve told me that you dont believe

4 that the existing epidemiologic studies allow one to make

5 those determinations, correct?

6 A. Thats correct.

7 Q. Okay.

8 And your response is based on whatever

9 epidemiologic studies you are aware of and have in mind,

10 correct?

11 A. Sure.

12 Q. Okay.

13 Are you aware of all epidemiologic

14 studies that address that topic?

15 MR. MUHIC: You are referring

16 to published ones?

17 MR. HARKINS: Yes.

18 Q. A peer reviewed published epidemiologic

19 study?

20 A. Having read this document, I dont see

21 that they cite any epidemiologic studies that prove this

22 point. I also think that the ability of -- as they state

23 here, the lungs ability to clear short fibers, sure.

24 That relates to lung fiber burden studies. But, in the

25 case of mesothelioma, those fibers are actually causing



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1 cancer outside of the lung. So, I dont see that the

2 evidence concerning lung fiber burden and the ability of

3 fibers to persist in the lung or not supports the

4 statement, the general statement, that short fibers

5 wouldnt cause -- quote cause cancer in humans, end of

6 quote.

7 Q. When you first -- can you tell me when

8 you recall first reading Exhibit H, approximately?

9 A. Probably 2004 or 2005, a couple of years

10 ago.

11 Q. Do you recall on what occasion it was

12 that you read it?

13 A. No. It wasnt so easy to find. Its

14 not published. Its not peer reviewed. Its essentially

15 a private document. It is not endorsed by the ATSDR or

16 the government. But, I think it was when I served on the

17 World Trade Center panel that I began to take a look at

18 it.

19 Q. You are not aware of whether or not its

20 been made available on the internet?

21 A. No. I have no idea whether it is

22 available on the internet.

23 Q. Well, you said it was private, and etc.,

24 etc.?

25 A. What I mean is, it is not published for



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1 -- for claritys sake, it is not an official publication

2 of the government. It is not issued by ATSDR or the CDC.

3 It does not come from a peer review journal. Its a

4 report put out by there Eastern Research Group.

5 Q. You agree that it was a report prepared

6 by the Eastern Research Group for the ATSDR --

7 A. Thats correct.

8 Q. -- at the ATSDRs request?

9 A. Yes. But, I was making a distinction

10 that it didnt receive the endorsement that a government

11 agency --

12 Q. We agree on that.

13 You dont dispute that the ATSDR

14 convened a panel of experts on this topic?

15 A. Well, the contractor did under the

16 auspices of ATSDR.

17 Q. Okay.

18 And that is not uncommon, is it?

19 A. I dont know how common or uncommon it

20 is.

21 Q. The fact that it was done in that

22 fashion doesnt in any way, in your opinion, undermine

23 the way in which the panel went about doing its work for

24 the ATSDR, does it?

25 A. No, no. I dont think it would



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1 interfere with it. I just wanted it clear that its not

2 as if it were a peer reviewed document. That is all.

3 Q. You are saying it was not peer reviewed?

4 A. Well, it wasnt a peer reviewed

5 published document in a journal going through the normal

6 peer review process.

7 Q. We can agree on that.

8 In fact, it was held out for peer review

9 in public meetings, though, wasnt it?

10 A. If I could take a look at the document.

11 Q. Sure.

12 A. It was discussed in a two-day meeting.

13 I wouldnt exactly refer to that as peer reviewed --

14 Q. Okay.

15 A. -- again, for claritys sake.

16 Q. Going back to the -- we are still on the

17 topic of short fibers.

18 Are you familiar with an organization

19 known as the ACGIH?

20 A. Yes.

21 Q. What is that?

22 A. Its a private organization of mostly

23 industrial hygienists.

24 Q. Is it comprised of non-industrial

25 hygienists?



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1 A. I dont know.

2 Q. Okay.

3 Do you know what the ACGIH has published

4 in the way of asbestos-related information?

5 A. Not specifically.

6 Q. Do you -- have you ever heard of term

7 TLV or Threshold Limit Value?

8 A. Sure.

9 Q. Are you aware that the ACGIH has

10 published a TLV or Threshold Limit Value, for asbestos

11 exposure?

12 A. Yes.

13 Q. Let me read something from their 2001

14 TLV for asbestos, and its actually listed as reference J

15 in the report filed by Mr. Jerry Lauderdale on October

16 26, 2007 in the plaintiff case, at page 4, the second column

17 at the top.

18 The statement appears

19 There is considerable

20 experimental evidence to indicate that

21 asbestos fiber shorten than five

22 microns are not pathogenic.

23 And then there is a citation

24 number 39, which is an article published by P. Gross that

25 appeared in the 1974 Volume 29 of the Archives of



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1 Environmental Health.

2 My question is, do you agree with that

3 statement?

4 A. Well, I havent seen this document.

5 Q. Sure. The information on page 4, you

6 have to flip back, I believe, to page 2, comes under the

7 heading human studies?

8 MR. MUHIC: Take your time and

9 look through it.

10 I assume we are going to mark

11 this as well.

12 MR. HARKINS: Sure.

13 A. What is the question?

14 Q. My question is, I read that last

15 sentence to that section beginning with the word

16 however, and I just simply wanted to know whether you

17 agree or disagree with that statement?

18 A. It says that there is considerably

19 evidence, and it sites one three or four page article

20 from 74. I havent read that article it sites, so I

21 really cant comment on that.

22 Q. Okay.

23 You could neither agree nor disagree?

24 A. Thats correct.

25 Q. Under the heading Dose Response



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1 Relationships for Asbestos-Related Diseases in the same

2 document, with respect to mesothelioma, the following

3 statement appears on page 6.

4 Mesothelioma. There is

5 sufficient efforts to show that for a

6 given level of exposure, the risk of

7 developing mesothelioma is far greater

8 with crocidolite and amosite than with

9 chrysotile.

10 I think that is consistent with what

11 you told us here today, correct?

12 A. No.

13 Q. All right.

14 Do you disagree with that statement?

15 A. I think the, as I said before,

16 crocidolite there is a greater risk of mesothelioma, and

17 that it is in the range of four to five to ten fold.

18 Amosite -- the risk associated with amosite, is much

19 closer to that of chrysotile, maybe somewhat higher.

20 Its not entirely clear. So, I wouldnt call that, as

21 they do, a far greater risk with amosite. And whether

22 five or ten-fold increase risk for crocidolite, if you

23 want to call that far greater, it certainly is greater.

24 It is not as great as, say, 500 fold.

25 Q. If you in fact accepted, which I



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1 understand you dont accept, the earlier range, the ratio

2 that was given of one to 500 and 800 or --

3 A. One to 100 to 500.

4 Q. One to 100 to 500.

5 If you subscribed to that ratio, then

6 you would agree with the far greater --

7 MR. PLACITELLA: He answered

8 that question. He said that he

9 doesnt --

10 Q. Let me see if I understand you.

11 You are saying is far greater -- that

12 ten times -- that ten fold more is not far greater?

13 A. No. I didnt say that at all.

14 Q. Okay.

15 A. I said it is greater than the risk of

16 chrysotile, but I didnt say it was as great as the 100

17 to 500 mentioned before. That is all.

18 Q. So I understand, the basis for your

19 disagreement with the ratio of one to 100 to 500 is you

20 rely upon earlier published data by Dr. Nicholson?

21 A. I rely on Nicholsons analysis and the

22 analysis of others, and I think the one to 100 to 500

23 really is based on some assumptions about certain

24 knowledge about exposure that just we really -- we really

25 cant rely on to the level that they do.



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1 Q. All right.

2 MR. MUHIC: Let me know when

3 it is a good time for a quick break.

4 MR. HARKINS: All right. Let

5 me just finish and get this question

6 out.

7 MR. MUHIC: All right.

8 Q. You said Nicholson and others.

9 Who are the others?

10 A. I am blanking on the name. Its another

11 one. It was a written similar kind of analysis. I think

12 it is Smith from 96, but I would have to look it up.

13 Q. Just so I am clear, when you say

14 Nicholson and others, you dont mean Nicholson and other

15 co-authors --

16 A. No.

17 Q. -- you mean Nicholson and a totally

18 different group of researchers?

19 A. Nicholson published this himself, and he

20 published the same analysis with Landrigan and some other

21 names that I draw a blank on. There is a separate

22 publication, I think it is, the one by Smith --

23 Q. Okay.

24 A. -- who also addresses the crocidolite

25 differential in potency roughly four or five fold



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1 compared to chrysotile.

2 Q. Nicholson was what year -- what year was

3 published?

4 A. 1999, 2001. Hes published it several

5 times.

6 Q. Does this go back to his original 1986

7 publication?

8 A. He refers to it. But, in the 99, 2001,

9 its a separate analysis.

10 MR. HARKINS: We will mark

11 that as Exhibit I.

12 (Defendants Exhibit I was

13 marked for identification.)

14 Lets take a break.

15 (A short recess was taken.)

16 (Plaintiffs Exhibit J was

17 marked for identification.)

18 MR. MUHIC: Your line of

19 questioning for the last 45 minutes or

20 so has been more appropriate for cross

21 examination at trial as opposed to a

22 discovery deposition.

23 The order had required that

24 the deposition was going to be fact

25 specific for reports and the opinions



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1 that he has issued in this case.

2 We still have the deposition,

3 the two attorneys need to question him

4 with regard to plaintiff. He cant spend

5 his whole day going through articles

6 on cross exam with you. I will give

7 you another ten minutes and then we

8 will go to plaintiff.

9 MR. HARKINS: I should be ten,

10 15 minutes.

11 MR. MUHIC: All right.

12 MR. HARKINS: Could you refer

13 him to page 88 of his October 26, 2005

14 deposition that Mr. Placitella

15 provided last evening?

16 MR. MUHIC: Do you have it as

17 number 88 at the bottom?

18 MR. HARKINS: Yes, 88 at the

19 bottom.

20 Q. Starting at line one of page 88, it

21 starts Do you agree or disagree, if you could read that

22 page over through to the next page 89, line 18, please.

23 A. Until when on the next page?

24 Q. Through line 18. It ends with the word

25 substance.



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1 A. Okay.

2 Q. Do you stand by that testimony?

3 A. Sure.

4 I mean, I cite Nicholson in 1989 there,

5 and I know that he estimated the relative potency in two

6 or three articles between 1999 and 2001. I am trying to

7 recall -- I know the 1989 article, and I am trying to

8 recall whether that article in 1989 actually addressed

9 this point or not, and I dont know. So, I may have

10 mis-spoke at the earlier deposition. It maybe 1999, not

11 1989.

12 Q. Have you ever read Report on the Peer

13 Consultation Workshop to Discuss a Proposed Protocol to

14 Assess Asbestos-Related Risk prepared for the USEPA

15 prepared by Eastern Research Group, Final Report May 30,

16 2003? Its been marked as Exhibit J.

17 MR. MUHIC: It was marked on

18 break?

19 MR. HARKINS: Yes.

20 MR. MUHIC: Again, bring up

21 articles more appropriate that were

22 contained --

23 MR. HARKINS: This is a

24 discovery deposition, is it not?

25 MR. MUHIC: It is supposed to



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1 be limited to the opinions and facts

2 in this case of the things he relied

3 upon his opinions here.

4 MR. HARKINS: I dont think

5 there is any rule that says I cant

6 ask him if something that is relevant

7 to the topic in order to find out if

8 hes ever seen it before.

9 How do I know if he relies

10 upon it.

11 MR. MUHIC: We have two cases

12 here this deposition has to be taken

13 for.

14 MR. HARKINS: I know.

15 MR. MUHIC: You have another

16 ten minutes, but then we are going to

17 move on.

18 Q. Your answer, Doctor?

19 A. I dont recall seeing this.

20 Q. You dont recall seeing it, Okay.

21 Let me read to you a sentence out of it

22 on page viii.

23 Fiber type. For mesothelioma

24 the, panelists supported the use of

25 different relative carcinogenic



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1 potencies for different fiber types.

2 The panelists unanimously agreed that

3 the available epidemiology studies

4 provide compelling evidence that the

5 carcinogenic potency of amphibole

6 fibers is two orders of magnitude

7 greater than that for chrysotile

8 fibers.

9 Do you agree or disagree with that?

10 MR. MUHIC: You are handing

11 him a document that he says he doesnt

12 recall ever seeing. It is obviously a

13 lengthy document.

14 A. Well, more to the point, I mean, this is

15 an executive summary. There are some very long

16 appendices to go with it, but I have to see exactly what

17 they are referring to. So, I really cant express much

18 of an opinion about this without looking at it.

19 However, I have told you what I think

20 about the relative potency and what I think pertains

21 directly to this particular statement.

22 Q. Okay.

23 Are you aware that since the time

24 Dr. Nicholson published his materials that you have

25 relied upon and referenced both in your 2005 deposition



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1 and referenced here today that there has been new data

2 and information published on the subject of fiber

3 potency?

4 A. I dont --

5 Q. You havent --

6 A. I dont know what you are referring to.

7 Q. Okay.

8 A. If you are referring to human studies, I

9 would like to see what you are referring to.

10 Q. Let me read you this statement from the

11 summary and ask you if you agree with it.

12 Since 1986, asbestos

13 measurement techniques and the

14 understanding of how asbestos exposure

15 contributes to disease have improved

16 substantially. To incorporate the

17 knowledge gained over the last 17

18 years into the agencys toxicity

19 assessment for asbestos, EPA

20 contracted with Aeolus, inc., to

21 develop a proposed methodology for

22 conducting asbestos risk assessments.

23 The proposed methodology distinguishes

24 between fiber sizes and fiber types in

25 estimating potential health risks



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1 related to asbestos exposure. The

2 methodology also proposes a new

3 exposure index for estimating

4 carcinogenic risk.

5 My question to you is, would you agree

6 that considerable knowledge has been gained over the last

7 17 years in terms of how asbestos exposure contributes to

8 disease?

9 MR. MUHIC: Objection to the

10 form.

11 A. Yes. I do agree. But, when I was

12 referring to Nicholson before, I was referring to

13 Nicholson 1999, 2001, not Nicholsons 1986 document. So,

14 the frame of reference here, in my view. Is switched.

15 Q. Whether it is 17 years or 15 years, you

16 agree --

17 A. No, no. I said 2001 versus 1986.

18 Q. Okay.

19 A. Thats a big difference.

20 Q. Okay.

21 Well, do you agree that over the last 17

22 years considerable new knowledge has been gained on the

23 subject of asbestos disease?

24 A. I think that there has been new

25 knowledge since 1986. A lot of it is refinement of what



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1 was already known, but there has been some new knowledge.

2 Q. Mesothelioma is a dose response disease,

3 correct?

4 A. In general, the higher the level of

5 exposure the higher the risk of disease certainly within

6 the same trade and type of asbestos exposure.

7 Q. So, do you agree that mesothelioma is a

8 dose response disease?

9 A. Yes.

10 Q. Okay.

11 A. The reason that its -- that you hear

12 some hesitation is because the reference population on

13 mesothelioma is subject to uncertainty because

14 mesothelioma is otherwise rare in the general population.

15 So, its been a little bit more difficult to exactly look

16 at the epidemiologic risk of mesothelioma. We also know

17 that under circumstances of lesser exposure that people

18 have developed mesothelioma and the risk there -- clearly

19 there is risk. Clearly, they are developing mesothelioma

20 from that exposure, but its hard to quantify that risk.

21 Q. Earlier, Doctor, you were asked

22 questions and some of your responses used the term each

23 and every exposure.

24 Do you recall that line of questioning?

25 A. Yes.



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1 Q. I would like to make sure I understand

2 what your opinion is in this case exactly as it relates

3 to Mr. plaintiff?

4 A. Sure.

5 Q. Am I correct that it is your opinion in

6 this case that each and every exposure to asbestos that

7 Mr. plaintiff experienced at the Ciba-Geigy job site

8 substantially contributed to cause his mesothelioma?

9 A. Well, each -- at whatever job site, each

10 and every exposure that he had, meaning, that the

11 asbestos material became airborne and he breathed it in

12 that that contributed to the development of mesothelioma

13 that he developed.

14 Q. Did it substantially contribute?

15 MR. MUHIC: Objection to the

16 form.

17 A. It really depends there on additional

18 detail regarding his exposure at any particular site and,

19 so, I would need additional detail to really answer that.

20 Q. What details would you need?

21 A. Well, I would need to relook at the

22 deposition as to what is specifically said about

23 Ciba-Geigy and Warner-Lambert and whatever other

24 facilities he was at and look at exactly what he did over

25 periods of time.



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1 Q. Doctor, I would love to give you that

2 opportunity her today, tomorrow or any day. But, as

3 youve heard your counsel state, we are here today to

4 take your deposition. Theres others who are waiting. I

5 am trying to move this along, I want to be done in a

6 matter of minutes here, and these are my last questions.

7 I really need to know if you can tell me

8 whether it is your opinion that each and every asbestos

9 exposure Mr. plaintiff experienced at the Ciba-Geigy job

10 site substantially contributed to cause his mesothelioma?

11 MR. MUHIC: Objection to the

12 form.

13 A. I will need a few minutes to answer that

14 question because I need to look at the depositions again.

15 Q. Okay.

16 MR. MUHIC: I dont want you

17 to try to rush and answer by reviewing

18 depositions in a minute or so when you

19 have already spoken for about five

20 hours today giving your opinions.

21 MR. HARKINS: I dont disagree

22 with that, Peter. But, he has havent

23 spoken to this question.

24 MR. MUHIC: Well, you are

25 asking him about the testimony he gave



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1 earlier this morning which he did

2 speak about for a couple of hours.

3 MR. HARKINS: He wasnt

4 talking about the Ciba-Geigy job site.

5 He was talking about products.

6 MR. MUHIC: He was referring

7 to each and every exposure.

8 MR. HARKINS: To a particular

9 product. But, at any rate.

10 (Pause in proceedings.)

11 (The following question was

12 read back:

13 Question: I really need to

14 know if you can tell me whether it is

15 your opinion that each and every

16 asbestos exposure Mr. plaintiff

17 experienced at the Ciba-Geigy job site

18 substantially contributed to cause his

19 mesothelioma?

20 Q. Can you tell me?

21 A. Yes.

22 Q. You can tell me?

23 A. Yes.

24 Q. Before you tell me your answer, what

25 have you been doing for the last few minutes?



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1 A. Ive been rereading one of the

2 depositions, the November 17, 2006 deposition.

3 Q. As I have observed, youve marked

4 several places in the transcript --

5 A. Correct.

6 Q. -- in pen --

7 A. Correct.

8 Q. -- circling and other notations putting

9 purple post its on those pages?

10 A. That is correct.

11 Q. Before you started that procedure, were

12 there any other markings on that deposition transcript

13 made by you or anyone else?

14 A. I dont think so.

15 Q. Okay.

16 So, the process that you have gone

17 through over the last few minutes in order to reach an

18 answer to my question is the one that you just described

19 going through the deposition, correct?

20 A. That is correct.

21 Q. Can we mark that as the next exhibit,

22 please?

23 MR. MUHIC: No. Because you

24 didnt ask him to prepare something

25 for you. He is making notes to



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1 himself as an aid for himself to

2 answer your question. He wasnt

3 preparing a document for you. This is

4 his copy of the deposition. He is

5 going to keep it.

6 MR. HARKINS: How am I

7 supposed to know what he is relying on

8 in it?

9 MR. MUHIC: You were going to

10 ask him a question.

11 Ask him a question.

12 MR. HARKINS: If you dont

13 want to make part of the record the

14 process by which he has just reasoned

15 to come to his answer, then I am happy

16 to have him read into the record all

17 of the testimony page-by-page line by

18 line that he is relying upon.

19 MR. MUHIC: He just told you

20 the process. That he looked through

21 the deposition.

22 MR. HARKINS: I understand.

23 And we have a right to know the basis

24 for the opinion.

25 MR. MUHIC: Now, you asked him



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1 a question. He told you he looked

2 through the deposition. Now, you

3 asked him to answer the question.

4 MR. HARKINS: Peter, we are

5 not mis-communicating.

6 MR. MUHIC: Ask him a

7 question.

8 MR. HARKINS: I just asked can

9 we mark this deposition as an exhibit.

10 Are you telling me we cant?

11 MR. MUHIC: Yes. Let him see

12 if he can answer your question.

13 Q. Doctor, starting with the very first

14 entry that you circled, marked or otherwise indicated,

15 read to me into the record the page number, the line

16 where it begins and the line where it ends, and we will

17 do it for every entry that you have marked.

18 A. Sure.

19 When I cite the page number, do you want

20 the mini script small page number or the general page

21 number?

22 MS. Mrs dopey defense lawyer: The small page

23 number.

24 MR. HARKINS: Is it the small

25 page number?



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1 Q. Let me ask you this, how many markings

2 are there?

3 A. I marked about seven or eight pages.

4 Q. Seven or eight pages, okay.

5 We will be here a while.

6 MR. MUHIC: We are going to be

7 out of here in an hour.

8 MR. HARKINS: It doesnt

9 matter, Peter. We want this

10 testimony. This is important

11 testimony that --

12 MR. PLACITELLA: If you wanted

13 his testimony, you should have stopped

14 asking him questions about articles he

15 never --

16 MR. HARKINS: I am not asking

17 about an article. I am asking

18 about --

19 MR. PLACITELLA: You did it

20 for an hour. Now, you are saying it

21 is important when we are out of time.

22 MR. HARKINS: We are not out

23 of time.

24 MR. PLACITELLA: Let him

25 answer his question and Peter and



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1 start plaintiff.

2 MR. MUHIC: You asked him a

3 question. He didnt answer that

4 question yet because then you took it

5 as trying to get into his internal

6 thought process.

7 MR. HARKINS: Yeah. I am

8 allowed to do that under Landrigan

9 (phonetic) and Rubiniak (phonetic).

10 Do you know those supreme court cases?

11 MR. MUHIC: Why dont you let

12 him answer the question that you asked

13 him.

14 We know what his answer is,

15 his answer is yes.

16 Q. Isnt it, Doctor?

17 A. I am sorry. What is the question? I

18 think I lost it.

19 Q. You do have an opinion, dont you?

20 A. About what?

21 Q. About the question that was asked of

22 you?

23 MR. MUHIC: Which one?

24 MR. HARKINS: Go ahead and

25 read back the last question.



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1 MR. MUHIC: There was a

2 question?

3 MR. HARKINS: Yes.

4 Go ahead and read back the

5 last question, the last substantive

6 one.

7 (The following question was

8 read back:

9 Question: I really need to

10 know if you can tell me whether it is

11 your opinion that each and every

12 asbestos exposure Mr. plaintiff

13 experienced at the Ciba-Geigy job site

14 substantially contributed to cause his

15 mesothelioma?

16 THE WITNESS: And what did I

17 answer?

18 MR. MUHIC: You said, Yes.

19 A. I answered he question.

20 Q. I dont disagree. He indicated that I

21 didnt let you answer the question.

22 Now, we are going to the process by

23 which you answered the question which, as I understand

24 it, you reviewed the transcript in front of you, youve

25 made markings on it, you formed some conclusions and



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1 opinions based thereon.

2 I am trying to ask you now to identify

3 for me what information, data, whatever it is, that you

4 are relying upon as the basis of your opinion, which I

5 believe you are required to do in order for it to be

6 admissible in this case under the supreme court of new

7 jerseys rule in the Landrigan and --

8 MR. MUHIC: He doesnt need a

9 lesson in the law from a pro hoc

10 counsel. Just ask him a question.

11 MR. HARKINS: I am making it

12 clear for the record, Mr. Placitella.

13 MR. PLACITELLA: Why dont you

14 ask him a question already and stop

15 badgering the witness on what the law

16 is?

17 MR. HARKINS: I am not

18 badgering. I am directing your

19 counsels objection.

20 MR. MUHIC: I will object to

21 the form of your last question too.

22 Q. We are at the point where you have to

23 read into the record the pages of Mr. plaintiffs November

24 17, 2006 deposition that you are relying upon?

25 A. Sure.



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1 MR. PLACITELLA: You want him

2 to read page and line into the record?

3 MR. MUHIC: You can tell him

4 page numbers.

5 MR. HARKINS: I think I am

6 entitled to know what information he

7 relies upon for the basis for his

8 opinion.

9 He has gone through the

10 deposition transcript and circled

11 specific testimony.

12 Earlier today, when he was

13 asked questions about the basis for

14 his opinion, he did also do the same

15 thing. I am not asking him to do

16 anything different than he did earlier

17 today.

18 I thought it would expedite

19 matters to simply take the transcript

20 and mark it as an exhibit, and I

21 wouldnt ask him any more questions.

22 But, I cant leave the record

23 open not knowing what the basis for

24 his opinion is and not have it

25 available to anyone.



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1 MR. MUHIC: He told you he

2 relied on the deposition testimony.

3 There is a whole lot of evidence that

4 he is going to rely upon too.

5 Doctor, if you want to give

6 him some of the page numbers that have

7 the relevant information and then we

8 are done.

9 MR. HARKINS: No. I want to

10 page numbers and the actual lines that

11 he relies upon because if he is going

12 to say the whole page, okay, fine.

13 Its the whole page.

14 A. Page 26, line 25. Page 27, line 1

15 through line 8. On that page, it refers back to his

16 comments on page 25, so I would add page 25 beginning

17 with line 13 through 25 moving on to page 26 line 1

18 through 16. I would add page 32. Again, these are the

19 parts of the deposition where he talks about Ciba-Geigy.

20 Page 32, line 17 through line 25. Page 33, line 1

21 through line 7. Page 35, line 10 through line 12. Page

22 58, line 10 through line 12. Page 59, line 1 through

23 line 3. Page 61, line 11 through 25. Then, page 62, the

24 entire page. Page 63, line 16 through line 24. Page 64,

25 line 8 through line 11. Page 65, line 2 through line 8.



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1 Then, finally, page 78, line 18 through line 21.

2 Q. Now, you have identified all of the

3 entries that you made?

4 A. Yes.

5 MR. HARKINS: Chris and Peter,

6 for the record, what is the basis for

7 the objection to not allowing the

8 witness to mark the transcript as an

9 exhibit to this deposition?

10 MR. MUHIC: Number one you

11 didnt ask him to prepare a document

12 before he was doing something. You

13 asked him a question. He was

14 reviewing information. You dont have

15 a right to take materials from his

16 file as he is looking through them.

17 If he wants to make a note for

18 himself, that is fine.

19 You ask your questions and he

20 will answer your questions.

21 MR. HARKINS: So, you are

22 saying that under the rules I am not

23 allowed to --

24 MR. MUHIC: You cant compel a

25 witness to do something during a



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1 deposition. He is here to answer your

2 questions.

3 MR. HARKINS: I didnt compel

4 him to do anything.

5 MR. MUHIC: You can mark

6 whatever you want as an exhibit. No

7 one can stop you.

8 MR. HARKINS: Oh, okay.

9 So, could we mark it, Chris?

10 MR. PLACITELLA: You can mark

11 it. No one can stop you. But, you

12 cant make him do something to it.

13 MR. HARKINS: Well, lets mark

14 it as the next exhibit.

15 You counsel said he wasnt

16 going to let him mark it. I am sorry.

17 Please mark this the next

18 exhibit.

19 (Defendants Exhibit K was

20 marked for identification.)

21 Q. Doctor, regarding Exhibit K, is there

22 any other information besides the testimony in Exhibit K

23 that you rely upon with respect to Mr. plaintiffs

24 Ciba-Geigy exposures as being a substantial contributing

25 factor that caused his mesothelioma?



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1 A. Well, I have another deposition that I

2 read, which is --

3 Q. Just tell me what it is.

4 A. It is dated September 6, 2007, which I

5 havent had a chance to go through yet in relation to

6 Ciba-Geigy.

7 Q. Okay.

8 With respect to Sandoz --

9 A. One last point.

10 Q. Okay.

11 A. Theres also these Plaintiffs Responses

12 to Interrogatories. I know there is not a lot of detail

13 about Ciba-Geigy, but there might be some reference to

14 it, and I havent had a chance to look through that.

15 Q. We dont need to mark that.

16 With respect to Sandoz, am I correct

17 that the information you rely upon about his Sandoz

18 exposure as being a substantial contributing factor is

19 either contained in his deposition that we have just

20 marked or is referenced in the certificate that

21 Mr. plaintiff executed and we marked as Exhibit C?

22 A. Well, there are two depositions, so the

23 answer is, yes. Except that theres two depositions and

24 whatever is in the interrogatories as well as the

25 certification.



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1 Q. Apart from those sources of information,

2 there is no other data or any other source of information

3 that you are relying upon, correct?

4 MR. MUHIC: Are you referring

5 to factual information specifically to

6 Ciba-Geigy?

7 MR. HARKINS: Yes.

8 Thank you for the

9 clarification.

10 Q. Factual information specific to either

11 Ciba-Geigy or Sandoz that you are relying upon?

12 A. Thats correct.

13 MR. HARKINS: Thank you,

14 Doctor. Sorry its been rough to kind

15 of get this through.

16 MR. dopey defense lawyer: Does any other

17 counsel have any questions on the

18 plaintiff case?

19 As a matter of housekeeping,

20 we have marked certain portions with

21 the stickers.

22 THE WITNESS: That means the

23 court reporter is going to take them

24 away.

25 MR. MUHIC: Off the record.



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1 MR. dopey defense lawyer: Yes.

2 (A short recess was taken.)

3 Q. Are you ready to continue, Doctor.

4 A. Yes.

5 Q. All right.

6 Doctor, this is a continuation of the

7 deposition, but this is only pertaining to plaintiff. Those

8 lawyers that have an interest only in plaintiff have cleared

9 the room. So, it is just us friends.

10 Have you secured those portions of your

11 file that pertain to the work that you did on plaintiff?

12 A. Yes.

13 Q. Can you identify the exhibits by

14 designation?

15 A. Exhibit E is the report I wrote to

16 Mr. Placitella dated November 20, 2006, and Exhibit F is

17 the Affidavit that I provided dated -- no date.

18 Q. Now, the Affidavit that you prepared,

19 was it -- did it address specifically the connection

20 between exposure to asbestos and peritoneal mesothelioma?

21 A. Yes.

22 Q. Is there anything in there, in the

23 Affidavit, that was peculiar, or particular or specific

24 to Mr. plaintiff?

25 A. No.



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1 Q. Now, the Affidavit that you prepared, is

2 it a discussion by you of the basis for your conclusion

3 that there is or can be a connection between exposure to

4 asbestos and peritoneal mesothelioma?

5 A. Yes. I mean, there is more literature

6 out there on it, but it contains some of the important

7 articles.

8 Q. And those are the articles that you

9 generally rely on for that proposition?

10 A. Yes. And the greater literature on

11 peritoneal mesothelioma.

12 Q. Do you know or have an opinion as to

13 whether there are others that disagree with you?

14 A. With respect to what?

15 Q. Whether or not exposure to chrysotile

16 asbestos can cause peritoneal mesothelioma?

17 A. I think some have, at least in the past,

18 expressed the opinion that chrysotile might not produce

19 peritoneal mesothelioma.

20 Q. Do you know who those people are by

21 name?

22 A. No. I dont recall.

23 Q. Do you have an opinion as to whether or

24 not they are respected in the field?

25 A. Well, I dont remember who they are, so



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1 I wouldnt really remember their reputation or how people

2 feel about them.

3 Q. Do you have -- I mean, do you view this

4 as there are others in your field that on the basis of

5 the basis of the evidence they see reach different

6 conclusions in good faith or is it your opinion that they

7 are simply wrong?

8 A. Well, I wont question their faith. I

9 think they are wrong. But, I wont question whether

10 they -- I assume they work in good faith.

11 Q. Okay.

12 They look at the same data and reach a

13 different conclusion?

14 A. Well, I actually dont recall what they,

15 one, or more, or however these people are, what they

16 cite. I just dont recall what they are citing to

17 support their opinion.

18 Q. Okay.

19 Now, in connection with the plaintiff case,

20 were you given any information or sources of information?

21 A. Well, I was given the materials that I

22 list in my report items one through six.

23 Q. What are those materials?

24 A. Medical records from four sources. One

25 is Hackensack University Medical Center, another is



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1 Columbia Presbyterian Medical Center, and the third is

2 Dr. Robert Taub, and the fourth is plaintiff Chabot,

3 C-H-A-B-O-T.

4 Q. And the other information?

5 A. The other information is the video

6 deposition that Mr. plaintiff gave February 22, 2006 and

7 also his Responses to Defendants Interrogatories.

8 Q. In connection with the medical records

9 that you reviewed, was Mr. plaintiff diagnosed with an

10 asbestos-related disease?

11 A. Yes.

12 Q. What was he diagnosed with?

13 A. Malignant mesothelioma of the

14 peritoneum.

15 Q. Did you review the information available

16 to the diagnosing physicians to determine what they had

17 when they reached that diagnosis?

18 A. Yes.

19 I am not sure that I got all the medical

20 records, but I got certainly sufficient number and type

21 to express an opinion about his disease.

22 Q. Did you get original slides or just

23 reports?

24 A. No. I got the medical reports. I

25 didnt get any pathology slides or x-rays.



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1 Q. So, your opinion was based on a review

2 of the reports contained in the medical records?

3 A. Its a review of the medical records.

4 The medical records include the physicians notes, the

5 pathology reports, the radiology reports, and other

6 assorted test results.

7 Q. On the basis of your review of the

8 medical records, specifically those that you have

9 identified, did you concur with the diagnosis?

10 A. Yes.

11 Q. Did you believe they had enough

12 information to reach a valid diagnosis?

13 A. Yes.

14 Q. In terms of Mr. plaintiffs description of

15 his occupational history, work-life history, history in

16 general, do you have an opinion as to whether or not his

17 condition was related to or caused by his exposure to

18 asbestos?

19 A. Yes.

20 Q. What is your opinion in that regard?

21 A. I believe that his occupational exposure

22 to asbestos caused his malignant mesothelioma of the

23 peritoneum.

24 Q. In terms of his occupational exposure to

25 asbestos, what did you determine his exposure to be?



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1 A. He worked for 15 years, 1963 to 1978, in

2 demolition work, plastering and cleanup. He reported

3 using joint compound on a frequent basis. He recalled

4 specifically sanding this material, and that it quote

5 created a lot of dust end of quote. He also used to

6 clean up the joint compound.

7 He makes additional reference, although

8 in less detail, to exposure to other materials that might

9 have contained asbestos including roof cement and ceiling

10 tiles. But, I dont have the details on those other

11 materials.

12 Q. I note that in the last portion of your

13 report you identify his asbestos exposure as quote

14 significant close quote?

15 A. Correct.

16 Q. Do you have an opinion as to whether or

17 not the exposure he identified to roof cement and ceiling

18 tiles is or is not significant?

19 A. I cant really make that judgment

20 because I dont know whether he really did that -- he

21 worked with those materials on a repeated or frequent

22 basis or not.

23 Clearly, on the joint compound, he said

24 he used it all the time and it created a lot of dust.

25 The other materials, I couldnt find that detail, so I am



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1 not certain.

2 Q. With respect to demolition, do you have

3 an opinion as to what sort of work he was doing in

4 connection with demolition?

5 A. Again, I dont have the detail about

6 that whether he was tearing out materials that might have

7 contained asbestos or not. It is possible. I just dont

8 know.

9 Q. Do you know whether or not the

10 demolition was done in connection with the renovation of

11 existing structures or complete demolition of the

12 structure?

13 A. No. I think it was demolition and

14 renovation.

15 Q. He would be taking out walls, that sort

16 of thing?

17 A. Well, I cant guess here, so let me say

18 I dont know.

19 Q. Now, in terms of demolition, would he be

20 destroying material that had been constructed in the

21 past?

22 MR. MUHIC: I think the

23 witness just said he didnt have

24 enough detail.

25 You are asking the same thing.



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1 A. I think by definition it would be

2 material that was constructed in the past. I dont see

3 how he could describe it as something that was

4 constructed in the future.

5 Q. I thought it was a --

6 A. I dont mean to make fun. I mean --

7 Q. -- myself and not much of a question.

8 Do you have any idea of what it is that

9 he was demolishing?

10 A. I dont recall. I mean, I dont have

11 that detail in my report.

12 Q. Do you know whether or not what he was

13 demolishing contained asbestos materials?

14 A. I dont know.

15 Q. If what he was demolishing contained

16 asbestos materials, would the act of demolition create

17 dust?

18 MR. MUHIC: Objection to the

19 form.

20 A. Most likely.

21 Q. And would it create dust that if he

22 breathed it in would be a cause or contributing cause of

23 his asbestos-related disease?

24 MR. MUHIC: Objection.

25 A. Certainly, if it was done repeatedly, I



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1 would say, yes.

2 Q. You mentioned plastering?

3 A. Yes.

4 Q. Are you familiar with plastering?

5 A. Yes.

6 Q. Do you know whether or not during the

7 period of time that Mr. plaintiff was working, 63 to 78,

8 plaster contained asbestos?

9 A. I dont know.

10 Q. How would you go to find out?

11 A. Well, in this case?

12 Q. In any case.

13 A. Well, I dont -- I dont conceive of it

14 as my job to determine whether a particular product

15 contained asbestos or not, so I wouldnt research that.

16 I really look at the type of job the

17 person did, the type of materials, and my general

18 understanding of whether in that era the materials were

19 likely to contain asbestos, and drawing my conclusions.

20 On the issue of plaster, I simply dont know.

21 Q. Did you do anything to find out whether

22 or not in the era in which Mr. pick was working, plaster

23 in the area he was working contained asbestos as one of

24 its components?

25 A. No. I did not.



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1 Q. Do you have access to sources of

2 information or material that you could use or rely on to

3 tell you whether or not plaster in the era he worked in

4 the area where he worked contained asbestos as a

5 component?

6 A. I dont know because I have never done

7 that.

8 Q. When you reported earlier that you

9 generally know or have some information about products

10 whether or not they contain asbestos, where do you get

11 that information?

12 A. Thats general knowledge that joint

13 compound in that era was known to contain asbestos.

14 Plaster, I am not sure.

15 Q. In terms of joint compound, have you

16 ever looked to see whether or not it contained asbestos

17 or have you just sort of always known?

18 A. No. At some point, I saw specifications

19 for various types of joint compound and saw that it

20 contained asbestos.

21 Q. Are you aware of any generally

22 recognized sources of information that you could go to

23 which would tell you whether or not plaster contained

24 asbestos in the era and in the area Mr. plaintiff worked?

25 MR. MUHIC: Can I just make a



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1 note on the record when you are

2 referring to plaster because I am

3 going to object to using that term

4 because I think how it was mentioned

5 in the past.

6 I am not going to give a whole

7 lot of detail here if you dont want

8 me to. But, there may be some

9 confusion whether the plaster was

10 referring to joint compound at the

11 time in his prior testimony and

12 sometimes words may not have been

13 always precisely used.

14 I would like to make clear

15 when you talk about plaster now if you

16 are referring to what is commonly

17 known as plaster on the walls distinct

18 from any joint compound or anything.

19 In some of the prior record,

20 it may not always be clear on that

21 point.

22 Q. Doctor, I was using your listing of the

23 products that Mr. plaintiff would have been exposed to.

24 But, taking counsels admonition at face value, did you

25 determine that Mr. plaintiff was talking about two separate



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1 construction materials? One is plaster that was formerly

2 used to make up wall surfaces in this area of the country

3 and the other was joint compound which was used in

4 connection with sheetrock as wall surfaces?

5 A. Well, I assumed that he was talking

6 about two different materials. However, frankly I didnt

7 really inspect the deposition closely to see whether he

8 was at any point intermingling those two terms or not.

9 Q. Making the assumption that he was

10 talking about two separate kinds of construction

11 materials that were used to make walls in this area of

12 the country, with respect to plaster, are you familiar

13 with how plaster is a applied, how it is used?

14 A. Yes.

15 Q. Do you know that it is essentially dry

16 components mixed with water applied to lath with a

17 trowel?

18 A. Correct.

19 Q. Do you know what the recipe for plaster

20 was in this area when Mr. plaintiff was working?

21 A. No.

22 Q. Do you know of any generally recognized

23 or accepted sources of information where you could go to

24 to find out whether or not the plaster contained

25 asbestos?



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1 A. Well, I would start with a few books,

2 Selikoffs book on asbestos and disease in the mid 1970s.

3 The asbestos source book by Peters and Peters, and

4 probably Castlemans book on medical and legal aspects of

5 Asbestos. I would also look at the International Labor

6 Organization encyclopedia, and then I would have to dig

7 further.

8 Q. Okay.

9 Now, it is my understanding that at one

10 point the Federal Register published the reports they had

11 received from product manufacturers in this country about

12 the products they made that contained asbestos.

13 Have you heard that or seen that?

14 A. No.

15 Q. Those are the sources, the ones that you

16 identified, that you would go to see if plaster contained

17 asbestos as a component?

18 A. Well, thats where I would start. As I

19 said before, I probably would have to dig a little more.

20 Q. Do you know any the trade names for

21 plaster that were generally used in this area or the are

22 in which Mr. plaintiff was employed?

23 A. No.

24 Q. In connection with use of plaster as a

25 building material, if it is dry components mixed with



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1 water to create the plaster that is applied to the wall,

2 do you know or have an opinion as to whether or not the

3 mixing process creates dust?

4 A. Well, I believe that it does.

5 Q. In connection with plaster, the

6 application, once the material has been prepared and it

7 is wet and malleable, does that create dust?

8 A. Not until its dry.

9 Q. After it is dried, are you aware of any

10 treatment that the plasterer does or finish work that he

11 does that would create dust?

12 A. Sanding.

13 Q. So, the plasterer may be called upon to

14 sand rough spots or raised edges?

15 A. Thats correct.

16 Q. And that sanding would release dust?

17 A. Yes.

18 Q. If the plaster material that is used by

19 the plasterer contains asbestos, would the dust that is

20 created in the mixing or the sanding that is required

21 result in exposure to the individual?

22 A. Yes.

23 Q. If a plaster wall that has been

24 constructed by someone else is demolished, destroyed,

25 because they are going to redo the wall, remove the wall,



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1 do you have an opinion as to whether the act of

2 demolition would create dust?

3 A. Yes.

4 Q. If the plaster that had been used

5 contained asbestos, would the act of demolition create

6 dust that would cause exposure to the demolisher?

7 MR. MUHIC: Objection to the

8 form.

9 A. Yes.

10 Q. Do you have an opinion as to whether or

11 not demolishing a plaster wall that contained asbestos

12 would create a significant exposure to the individual?

13 MR. MUHIC: Objection to the

14 form.

15 A. At that period of time, most likely.

16 Q. And I assume that the cleanup operations

17 for either mixing the plaster or cleaning up after the

18 plaster wall has been demolished would likewise create or

19 liberate dust?

20 A. Correct.

21 Q. That if breathed by the workman, would

22 constitute a significant exposure?

23 MR. MUHIC: Objection to the

24 form.

25 A. I mean, unless the material was wet



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1 down. But, if it was in a dry state, it would create a

2 significant exposure.

3 Q. If they used a wet process where they

4 wet the material before they swept it up, that would

5 reduce the dust significantly?

6 A. Correct.

7 Q. Do you have an opinion whether the wet

8 process would eliminate dust?

9 A. It would reduce it. I doubt it would

10 eliminate it entirely.

11 Q. Now, in terms of the joint compound work

12 that Mr. plaintiff did, did you have any or were you able to

13 come up with any data about the specific years he did

14 joint compound work or was it the entire period?

15 A. I didnt make note of that in my report,

16 and I dont know that the deposition actually addresses

17 that point or not.

18 Q. Do you remember how many companies he

19 worked for during that period of time?

20 A. No.

21 Q. Do you know whether or not either

22 company or both companies did drywall work?

23 A. I dont recall.

24 Q. Do you know or have an opinion as to the

25 period of time Mr. plaintiff did drywall work, that is, used



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1 joint compound or sheetrock?

2 A. No. He said that he used joint compound

3 on a frequent basis, but I didnt take note or I dont

4 know actually whether in his deposition he delineated the

5 years he did that work or not.

6 Q. In terms of the joint compound work that

7 he did, did he identify the products that he was exposed

8 to by trade name or by manufacturer?

9 MR. MUHIC: Objection to the

10 form.

11 A. I think so.

12 Q. Do you remember what he identified?

13 A. No.

14 Q. Did it make any difference to you what

15 product he identified?

16 A. No.

17 Q. Do you consider the products to be

18 essentially interchangeable?

19 MR. MUHIC: The joint compound

20 products?

21 MR. dopey defense lawyer: Yes, I apologize.

22 Q. Do you consider the joint compound

23 products to be essentially interchangeable?

24 A. With respect to what.

25 Q. Do you know whether or not they have the



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1 same amount of asbestos? Is there a range? Does it make

2 a difference?

3 A. I think there is probably some

4 variation. But, given the type of exposure that

5 individuals have with that material, I dont think the

6 limited variation has a major impact on their exposure.

7 Q. Have you done any independent work where

8 you attempted to evaluate the levels of exposure of a

9 workman who is mixing. Sanding or cleaning up tape joint

10 compound?

11 A. No.

12 Q. Have you relied upon the work of others

13 in terms of quantification of exposure for mixing,

14 sanding or cleaning up tape joint compound?

15 A. No. I think Ive seen a report on it,

16 but I dont rely on it.

17 Q. Do you attempt to quantify, in any way,

18 the levels of exposure for someone who mixes, sands or

19 cleans up tape joint compound that contains asbestos?

20 A. Not in terms of concentration in the

21 air. In terms of duration, yes, but not consultation.

22 Q. In terms of duration, I assume by that

23 you mean the time that the individual is exposed?

24 A. Right. The calendar years in which he

25 or she was exposed.



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1 Q. Do you -- I mean, do you do any kind of

2 estimate about if he is a sheetrock worker 15 percent of

3 the time they spend mixing, 20 percent of the time they

4 spend sanding --

5 A. Only if that detail is provided. I

6 mean, in his case. It looked like he was doing the same

7 kind of work over and over again.

8 Q. Do you know or was there any way for you

9 to determine how much time, expressed either in terms of

10 percentage, or hours, or days, months Mr. plaintiff was

11 actually utilizing tape joint compound as opposed to

12 whatever else he did?

13 A. I dont recall details on that.

14 Q. Did you quantify his exposure in terms

15 of fiber years or any other quantitative measurement?

16 A. No.

17 Q. Do you have an opinion as to whether or

18 not his exposure to tape joint compound, as he described

19 it as you understood it, was sufficient to cause his

20 asbestos-related disease?

21 A. Yes.

22 Q. Do you have an opinion as to whether or

23 not demolition plaster and cleanup, if the plaster

24 contained asbestos, was sufficient to cause his disease?

25 A. If he did that repeatedly and if it



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1 contained asbestos, then, yes, that type of exposure

2 alone could have caused his disease.

3 Q. In terms of the tape joint compound

4 products that he described, do you know whether or not

5 any of them contained Canadian chrysotile?

6 A. I dont know in fact what the product --

7 who made the products or where they got their asbestos

8 from. I said earlier today that most asbestos came from

9 Canada. Most of it was chrysotile. But, these

10 particular products I cant tell you in fact what

11 asbestos they contained or where it came from.

12 It is typically chrysotile is my

13 understanding. But, again, I cant tell you for sure it

14 came from Canada. Mostly likely it did.

15 Q. It is my understanding that you are of

16 the opinion that Canadian chrysotile was contaminated

17 with tremolite --

18 A. Yes.

19 Q. -- which is amphibole, correct?

20 A. Yes.

21 Q. Does the tremolite contaminant in

22 Canadian chrysotile have the same potency with respect to

23 mesothelioma as the other amphiboles, crocidolite and --

24 A. That isnt entirely clear because there

25 are very few studies where tremolite alone is the



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1 asbestos exposure.

2 In the case of the contamination of

3 chrysotile, of course, it always occurs in chrysotile.

4 And I think there are only a couple of studies where you

5 could look at tremolite alone as a mesothelial

6 carcinogen. Because I dont think there is enough data

7 to say that -- to talk about its potency specifically in

8 relation to, say, crocidolite.

9 Q. What studies deal with tremolite

10 exposure alone?

11 A. McDonalds study of Libby, Montana where

12 the tremolite contaminated the vermiculite, a mortality

13 study, and theres been an update of that by, I think,

14 Sullivan. It came out of NIOSH. I think the fellows

15 name is Sullivan.

16 Q. So, you are talking about the people up

17 in Libby, Montana that were effected by working in the

18 vermiculite mines?

19 A. Correct.

20 Q. Which turned out to be contaminated by

21 tremolite?

22 A. Correct.

23 Q. When you refer to McDonalds, are you

24 talking about the studies where they attempt to associate

25 mesothelioma with the contamination of the various mines?



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1 A. I am talking about a specific study. I

2 dont recall the citation, but a mortality study they did

3 ten or 15 years ago of people at Libby, Montana.

4 Q. Also, McDonald is looking at Libby,

5 Montana?

6 A. Yes.

7 Q. You are aware that the McDonalds looked

8 at the mines in Quebec --

9 A. Sure.

10 Q. -- in an attempt to correlate tremolite

11 contamination with the incidence of disease in various

12 pockets or ores that they were using?

13 A. Correct.

14 Q. Do you rely on those studies or think

15 those are authoritative?

16 A. I think that those studies are useful.

17 I dont really use the word authoritative. I do think

18 they contribute something to knowledge about asbestos.

19 Q. Okay.

20 I apologize to. Authoritative is a word

21 that is used in one of our rules in evidence. I dont

22 think it has anything to do with what you do. Is it a

23 study that you would rely on?

24 A. I appreciate the compliment.

25 Q. Well, I dont know who I was -- well,



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1 are the McDonald studies that deal with the incidence of

2 mesothelioma relative to tremolite contamination in the

3 Canadian mines studies that you consider to be relied

4 upon, if you will?

5 A. I think they are most likely

6 scientifically valid. Like any study, I am sure there

7 are some limitations, but I think they provide an

8 addition to the literature.

9 Q. Okay.

10 Now, in terms of the studies at Libby,

11 Montana and the McDonald studies on the Canadian mines,

12 they do provide correlation between exposure to tremolite

13 and mesothelioma. Is that correct?

14 A. Yes.

15 Q. Do you know whether or not tremolite has

16 the same chemical composition as the other amphiboles?

17 A. Its unlikely that its identical, but I

18 dont know for a fact what its chemical composition is.

19 Q. Does it have the same physical

20 characteristics of the amphiboles?

21 A. In general.

22 Q. In terms of Mr. plaintiff, are you aware of

23 any other asbestos exposure that he might have had that

24 he did not report?

25 A. No.



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1 Q. Do you believe that that means he was

2 not exposed to asbestos anyplace else or just that he

3 doesnt know that he was?

4 A. I have no opinion. I have no

5 information that suggests that he was or was not

6 otherwise exposed or that he knew that he was otherwise

7 exposed.

8 Q. The reason I ask this question is, some

9 of the information that you have prepared and the

10 deposition that you gave in connection with the dental

11 liner, you made reference to things like household

12 exposure, exposure to consumer products that contained

13 asbestos where the people might not even be aware, where

14 the levels of exposures would be low, but, nevertheless,

15 created a risk of incidence of disease.

16 Do you recall that testimony?

17 A. Yes.

18 Q. Which indicates to me that there may

19 have been instances where Mr. plaintiff was exposed to

20 asbestos that he was not even aware of or at least that

21 possibility exists?

22 MR. MUHIC: Objection.

23 Are you asking if he agrees

24 with what your supposition is?

25 MR. dopey defense lawyer: Yes.



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1 A. Well, in the dental mesothelioma cases,

2 there was an unusual exposure circumstance that hadnt

3 previously been well documented, meaning, exposure to

4 asbestos through manipulation of dental liners during

5 dental school, so I thought it was especially important

6 to examine to the extent the information was available

7 whether there were alternative explanations.

8 In the case of Mr. plaintiff where he

9 worked for 15 years as a laborer and house renovator,

10 there you had already exposure to asbestos which clearly

11 explain his mesothelioma.

12 Now, if he had important household

13 exposure otherwise and that were well documented, then to

14 me that would have contributed to his development of his

15 cancer.

16 But, the question to me, which I was

17 asked to address, was his occupational exposure known to

18 have caused his cancer I was able to answer that

19 question.

20 Q. Okay.

21 Do you know whether or not the homes in

22 the area where Mr. plaintiff work from 68 to 78 were

23 insulated?

24 A. I dont know.

25 Q. If they were insulated, do you know what



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1 kind of insulation they used?

2 A. I do not.

3 Q. Do you know whether or not pipes in

4 residences where Mr. plaintiff worked in the area where he

5 worked were insulated?

6 A. It dont recall whether that was ever

7 addressed in the deposition.

8 Q. Do you know from your general fund of

9 knowledge whether the pipes in the homes in the area

10 where Mr. plaintiff worked between 68 to 78 were

11 insulated?

12 MR. MUHIC: I object to the

13 foundation for the question. He

14 doesnt know the specific homes he was

15 in. And you are asking for a specific

16 question where there is no testimony

17 about that. There is no evidence.

18 Are you going to ask him to

19 make an assumption for your question?

20 MR. dopey defense lawyer: Not yet.

21 Q. I am sorry. Do you understand the

22 question?

23 A. Sure. I really cant comment on that.

24 I think the use of asbestos in homes in that era was

25 quite variable.



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1 Q. But, in terms of variation --

2 A. I am saying in terms of insulation.

3 Q. In terms of variation, what are the

4 ranges of variation that you are aware of?

5 A. Some homes built in that era could have

6 been totality free of asbestos insulation. Other homes

7 might have used pipecovering in the basement or some

8 other asbestos cement around the boiler. Maybe the

9 risers within those homes that might have or the duct

10 work might have been covered with asbestos, although

11 certainly Rock Wool was coming in at that time. So, it

12 is hard to say.

13 Q. Okay.

14 In terms of your knowledge, however, as

15 a medical doctor who works in this area, you dont know

16 or at least I have sensed that do not know or have an

17 opinion about the usual and customary building materials

18 used in residences in the area where he worked in terms

19 of either insulation or pipecovering?

20 A. Specifically in terms of insulation, I

21 dont -- I cant say that asbestos was regularly used in

22 private homes in any way that occupants or even

23 renovators would have exposures to.

24 Q. Were the homes up here insulated back in

25 the 60s?



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1 A. Yes.

2 Q. And the insulation would have been on

3 the exterior walls, I assume. As well as the ceilings?

4 A. That is correct. And the pipes would be

5 insulated too. But, in that era, I think you had forced

6 hot air, so you would have had duct work. So, the

7 insulation of that would be variable.

8 Q. If Mr. plaintiff worked as a home renovator

9 and plaster as well as sheetrock worker, what other

10 possible sources of asbestos exposure in that profession

11 are you aware of?

12 MR. MUHIC: I will object.

13 You know, you are asking him a

14 complete hypothetical. Mr. plaintiff has

15 testified. He has his deposition and

16 he has his interrogatory answers.

17 A. You know, roofing materials, siding

18 materials contained asbestos. Insulation, I have already

19 mentioned. Those would be the main uses in addition to

20 the joint compound.

21 Q. Now, going back to Mr. plaintiffs work

22 with joint compound, do you have an opinion about the

23 frequency or regularity with which he did sheetrock work?

24 A. I was under the impression that it was a

25 regular part of his job.



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1 Q. What does regular part of his job mean?

2 A. That he did it frequently over much of

3 the 15-year period that he did this work.

4 Q. Does that mean that he did it every day,

5 most every day, some days?

6 A. Every day, several times a week, very

7 frequently.

8 Q. Now, you dont have his deposition here,

9 do you?

10 A. No, I dont. I apologize.

11 Q. So, I cant ask you to mark in purple

12 the places you are relying on?

13 A. No. But -- I guess not.

14 Q. Okay.

15 In the report that you prepared, is

16 there any specific reference to places in the deposition

17 that you are relying on for your conclusion that his

18 exposure to tape joint compound was frequent and regular?

19 A. No. I only give a specific reference

20 page number where he said that particular operation

21 created a lot of dust. But, I dont give the citation of

22 where I read he did it on a frequent basis. I did state

23 he used joint compound on a frequent basis and that would

24 go along with the sheetrock, but I dont provide the page

25 number of the deposition where he says that.



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1 Q. In terms of Union Carbide Corporation,

2 do you have any idea of what Union Carbide Corporation

3 had to do with any exposure that Mr. plaintiff may have had

4 to asbestos?

5 A. No.

6 Q. Do you have any idea of what information

7 Union Carbide did or failed to communicate to its

8 customers in connection with asbestos?

9 A. No.

10 MR. dopey defense lawyer: Okay. I think

11 that is all I have.

12 BY MR. dopey defense lawyer:

13 Q. Doctor, Sebastian dopey defense lawyer from the law

14 firm Marks ONeill.

15 Your report indicates that you reviewed

16 the video deposition of plaintiff plaintiff from February 22,

17 2006.

18 Did you review any other of Mr. plaintiffs

19 depositions that were taken in this matter?

20 A. No. I would have listed it -- what I

21 reviewed I have listed everything that was given to me.

22 It is not here, so I didnt review.

23 Q. Would it have been helpful to you in

24 performing the basis of your opinion to review the

25 discovery depositions of Mr. plaintiff?



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1 MR. MUHIC: Objection.

2 A. It wouldnt have changed my opinion

3 likely, but it might have provided some additional

4 detail.

5 Q. Would it have been helpful for you to

6 review the continuation of the video deposition of Mr.

7 plaintiff.

8 MR. PLACITELLA: Objection.

9 Sebastian, be fair. It was

10 when he was in the hospital and could

11 barely speak, and he was only talking

12 about this medical. So, be fair and

13 let the doctor please know what you

14 are talking about.

15 MR. dopey defense lawyer: Is that an

16 objection, Chris?

17 MR. PLACITELLA: Yes. That is

18 not a fair question. You are implying

19 something that doesnt exist, yes.

20 Thats an objection.

21 A. You know, I cant comment whether it

22 would be helpful because I dont know the contents.

23 Q. You indicate in your report that Mr.

24 plaintiff worked with some cement products.

25 If you knew from reading some of the



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1 other deposition testimony and evidence in this case that

2 Mr. plaintiffs job at one point in time characterizes him

3 as being a mason, would that have impacted your opinions

4 on how Mr. plaintiff may have contracted mesothelioma?

5 MR. MUHIC: Objection.

6 A. No.

7 In fact, in my report, I quote Dr.

8 Chabot, one of his treating physicians, saying he was a

9 mason, although he doesnt provide any additional

10 details. Simply the fact of knowing that he was a mason

11 wouldnt change my opinion because I already knew it.

12 Q. Can you explain to me the type of work

13 that a mason would have done that would have exposed him

14 to asbestos?

15 MR. MUHIC: Objection.

16 Are you asking specifically

17 about Mr. plaintiff or are you asking

18 some hypothetical question about some

19 unknown mason?

20 MR. dopey defense lawyer: We can phrase

21 it however you want.

22 Q. But, either way, do you know of any work

23 that Mr. plaintiff did as a mason?

24 MR. dopey defense lawyer: I dont

25 believe that he had the testimony in



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1 front of him. I dont believe he was

2 shown all the testimony.

3 Q. But, if you know, Doctor, do you know

4 whether or not Mr. plaintiff was exposed to asbestos by way

5 of his work as a mason?

6 A. I have no details about his work as a

7 so-called mason.

8 Q. Okay.

9 I know you didnt have the opportunity

10 to review all the testimony that the plaintiff gave in

11 this matter.

12 Do you have any general opinions of how

13 a mason would have been exposed during their normal

14 course of business doing the job of a mason to asbestos?

15 MR. MUHIC: Objection. You

16 are trying to --

17 Q. If you dont have a basis, Doctor, you

18 can say that. But, if you, in your experience in

19 reviewing these types of cases and doing the research you

20 have done, have any opinions as to the types of

21 activities masons would perform that would expose them to

22 asbestos I would like you to share that with me?

23 MR. MUHIC: Objection to the

24 form. I dont want you to speculate.

25 A. Of course, this is not about Mr. plaintiff



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1 a tall because I dont know whether or if he worked as a

2 mason what it might have involved. Masons working with

3 firebrick in the basement, then, likely that would

4 involve exposure to asbestos. Routine mason work with

5 brick on the outer surface of a building with routine

6 masonry cement, to my knowledge, didnt contain asbestos.

7 Whether they were in the proximity when other people,

8 other trades, were using asbestos materials they could

9 have been afforded an opportunity for exposure. But, you

10 know, that would be speculation on my part really.

11 Q. I understand, Doctor.

12 Doctor, you mentioned firebrick. What

13 is the type of asbestos fibers that are contained within

14 firebrick, if you know?

15 A. I think much of it was chrysotile. But,

16 whether there were amphiboles or not, I dont know.

17 Q. Do you know if a fiber burden analysis

18 was ever done on Mr. plaintiff after his death?

19 A. No.

20 Q. You dont know?

21 A. I dont know.

22 MR. PLACITELLA: It wasnt and

23 you know that.

24 MR. dopey defense lawyer: I am sorry.

25 Are you testifying now, Chris?



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1 MR. PLACITELLA: No. I am

2 saying ask him a fair question. It

3 wasnt, so why are you asking the

4 question. And you know that it

5 wasnt.

6 Q. If a fire burden analysis had been

7 performed on Mr. plaintiff after his death, would that have

8 provided you with any other information that you could

9 have used in forming your opinion?

10 MR. MUHIC: Objection to the

11 form.

12 A. I dont know. Fibre burden of the lung,

13 fiber burden of the peritoneal tissue, cancer tissue?

14 Q. Of the lung.

15 A. I dont know, maybe.

16 Q. In your experience, is that type of

17 analysis of the lung or peritoneal tissue show evidence

18 of evidence of what types of fibers may have caused

19 disease?

20 A. It shows evidence of some of the fibers

21 that the person was exposed to in the past.

22 Q. Doctor, do you recall from the testimony

23 that you read what types or brand names of joint compound

24 plaintiff worked with?

25 A. I am sorry. I dont recall the



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1 companies.

2 Q. Sure.

3 I do note that in your report you

4 reference by name the company Durabond.

5 Is there a reason why you reference that

6 company in your report?

7 MR. MUHIC: Objection to the

8 form.

9 A. No.

10 There wasnt any particular reason

11 except that I may have been unclear as to exactly what

12 that product was, so I wanted to refer to it with some

13 specificity to say that he mixed it up in the dry state.

14 But, I think I was unclear about what the product was.

15 Q. Do you remember what he used that

16 Durabond product for?

17 A. No.

18 Q. Do you have any opinion of any ways in

19 which the company Georgia-Pacific may have contributed to

20 Mr. plaintiffs asbestos exposure?

21 MR. MUHIC: Are you asking if

22 he knows the specific products that

23 Georgia-Pacific made? He has given a

24 report in this case and opinions.

25 Now, you know what his opinions are in



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1 the report.

2 Are you asking if they would

3 apply to Georgia-Pacifics ready mix

4 product?

5 MR. dopey defense lawyer: No. I am

6 asking him -- I object to your use of

7 brand name, one of our products.

8 In New Jersey, you are allowed

9 to object to the form, and you know

10 that to be.

11 MR. MUHIC: If you are asking

12 him about Georgia-Pacific and whether

13 it applies to your product, so if you

14 are going to ask him a question --

15 MR. dopey defense lawyer: He mentioned

16 Durabond by name in the report. He

17 didnt mention any other product by

18 name. He also didnt mention any

19 other product by name in the plaintiff

20 report.

21 MR. MUHIC: If you are going

22 to refer to Georgia Pacific products,

23 tell him the name of the product that

24 you are referring to.

25 MR. dopey defense lawyer: I am not



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1 asking him about a specific product.

2 What I asked him was, if he knows of

3 any way in which the Georgia-Pacific

4 Corporation contributes to plaintiffs

5 disease.

6 MR. MUHIC: Go look in the

7 transcript. Go find Georgia Pacific

8 in the transcript.

9 MR. dopey defense lawyer: Chris, he

10 didnt bring his transcript.

11 MR. PLACITELLA: Okay.

12 Do you have the transcript?

13 MR. dopey defense lawyer: Chris, I dont

14 have the transcript.

15 MR. PLACITELLA: Oh, okay.

16 Is there any doubt that

17 Mr. plaintiff identified Georgia-Pacific

18 as a product he used.

19 MR. dopey defense lawyer: Can we go off

20 the record here because I feel like

21 you are testifying. Maybe we need

22 this on the record.

23 Chris, it is not your dep to

24 testify. If you want to object to the

25 question, object to the question.



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1 MR. PLACITELLA: Be fair in

2 your question.

3 MR. dopey defense lawyer: What is unfair

4 about asking him whether or not it is

5 his opinion if Georgia-Pacific

6 Corporation contributed to his

7 asbestos exposure. He read the

8 materials. He could have an opinion

9 or maybe he doesnt have an opinion.

10 There is nothing unfair about the

11 question.

12 MR. PLACITELLA: Tell him what

13 product or class of products you are

14 referring to.

15 MR. dopey defense lawyer: We already

16 said we are talking about joint

17 compound.

18 MR. PLACITELLA: Okay. If Mr.

19 plaintiff used joint compound, was that a

20 cause? Is that your question?

21 Thats all I am asking you.

22 Be fair.

23 MR. dopey defense lawyer: No. My

24 question to the man, excuse me, the

25 doctor, excuse me, is whether or not



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1 he has an opinion on if

2 Georgia-Pacific Corporation

3 contributed to Mr. plaintiffs

4 asbestos-related disease. That is my

5 question.

6 MR. PLACITELLA: He already

7 told you that each and every exposure

8 contributed.

9 Why are you playing with him?

10 Just ask him a direct question.

11 MR. dopey defense lawyer: Are you

12 instructing him not to answer, Chris?

13 MR. PLACITELLA: No. I am

14 asking you to ask a fair question.

15 Q. Sir, do you understand my question?

16 A. Sure.

17 I dont recall which particular brand

18 name products he used. Georgia-Pacific made a commonly

19 used compound at the time, and he may well have cited

20 Georgia-Pacific joint compound. If Georgia Pacific made

21 the joint compound that he used, then, certainly that

22 contributed to his malignant mesothelioma.

23 Q. By your answer, are you stating that you

24 believe that Georgia-Pacific had asbestos components to

25 their ready mix joint compound?



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1 A. No.

2 I am saying that if he used

3 Georgia-Pacific product, joint compound, at the time,

4 that it is likely that it contained asbestos.

5 Q. And what do you base that opinion on?

6 A. General knowledge about what joint

7 compound contained in the 60s and the 70s.

8 Q. Would your answer be any different for

9 any other manufacturer of joint compound during that time

10 frame?

11 A. No.

12 Q. Okay.

13 MR. dopey defense lawyer: I have no

14 further questions.

15 Thank you.

16 BY MR. dopey defense lawyer:

17 Q. Some of this is repetitive. I apologize

18 to you.

19 Can you give us about ten minutes or so?

20 MR. MUHIC: What is it

21 repetitive of? Of what Mr. Sebastian

22 just asked?

23 MR. dopey defense lawyer: No, no, no.

24 This is repetitive of what we

25 talked about earlier this morning.



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1 MR. MUHIC: I mean, is there a

2 need to repeat it?

3 If you are going into the

4 question saying its repetitive, then

5 you know he already answered it.

6 MR. dopey defense lawyer: The area is

7 repetitive. I dont really expect to

8 ask the same question just to see if

9 he will answer it differently this

10 time now that hes tired and was beat

11 up by the guy from Washington.

12 Q. I am interested in epidemiology which

13 may or may not show an increased risk of respiratory

14 disease and lung cancer among construction trades.

15 Are you aware of specific

16 epidemiological studies that have attempted to break out

17 drywall workers as a separate group to see whether or not

18 there is an increased risk of respiratory disease or

19 cancer?

20 A. I think that I recall that there was at

21 least one study of tapers that looked at asbestos-related

22 disease. I believe it was nonmalignant respiratory

23 disease they were looking at and not cancer. Now, there

24 may have been others, but I just cant think of any

25 specifically that occurred.



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1 Q. If there are studies of cohorts of

2 specific construction trades allowed with drywall tapers

3 that show no increased risk of respiratory disease or no

4 increased risk of lung cancer or no increased risk of

5 mesothelioma, and those epidemiologic studies are about,

6 as you described the McDonald studies being earlier, what

7 conclusions can you draw from that?

8 MR. MUHIC: Objection.

9 A. That is a very difficult hypothetical.

10 Because studies are not sort of categorically valid or

11 invalid.

12 All studies have some strengths and

13 weaknesses. I would have to look seriously at that

14 literature and try to make sense of it.

15 Here you ever a trade that used asbestos

16 on a regular basis in one of its principal products

17 typically over years and years, and you have a study

18 which then shows it doesnt suffer any asbestos-related

19 disease. Thats an anomaly. It would go against what we

20 know about asbestos and in general asbestos disease

21 epidemiology. So, I would have to take a careful look

22 and try to make sense of this. I would have to say,

23 though -- well, let me leave it at that.

24 Q. If you have looked at the studies of

25 tape joint workers that found there was no increased risk



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1 of cancer or mesothelioma and concluded that the studies

2 themselves were valid, what conclusion would you draw

3 with respect to the increase of the risk of mesothelioma

4 from somebody who was a tape joint worker?

5 MR. MUHIC: Objection.

6 You have two hypotheticals in

7 there.

8 A. This, again, in my view is very

9 speculative. If a person, an individual, has documented

10 asbestos exposure, and particularly as a taper or using

11 joint compound on a frequent basis over a prolonged

12 period of time, regardless of the studies that may or may

13 not exist that you are mentioning, if that person

14 develops mesothelioma I would say that that exposure to

15 joint compound contributed as a cause to that persons

16 mesothelioma.

17 Q. I want you to assume that there are

18 cases of mesothelioma that have been found in plasterers

19 and masons, and that those studies or reports are

20 scientifically valid. I want you to assume then, that

21 there are studies, epidemiological studies, that show no

22 increase of mesothelioma among those that do sheetrock

23 and there are studies that show cases of mesothelioma

24 among plasterers and masons, and then ask you to assume

25 Mr. plaintiffs work history, which is, he was a plasterer,



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1 and a mason, and a sheetrocker.

2 On the basis of those studies, what

3 conclusion can you draw as to what caused his

4 asbestos-related disease?

5 MR. MUHIC: Objection to the

6 form.

7 MR. PLACITELLA: I will object

8 to the form.

9 I dont know how you can

10 answer it based on nine assumptions

11 where you have no premise for what you

12 are even answering.

13 MR. MUHIC: Dont answer if

14 you dont have good facts.

15 A. Well, I mean, to me, its simply too

16 uncertain to label a person a plasterer, label a person a

17 mason and be able to speak knowledgeably about their

18 asbestos-related risk.

19 Q. Okay.

20 Are you aware of studies that have found

21 mesothelioma among those that are classified as

22 plasterers and masons?

23 A. I think theres asbestos-related disease

24 thats been documented among bricklayers and masons.

25 Plasterers. I dont recall.



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1 Q. What source of asbestos exposure for

2 bricklayers or masons would result in mesothelioma?

3 MR. MUHIC: Objection to the

4 form.

5 A. I would have to say that there are two

6 types of exposures that they could have. One is the

7 material they are using themselves in certain specialty

8 situations would contain asbestos.

9 The other important exposure for them

10 would be bystander, which is that they are working at

11 active construction sites where insulators, sheet metal

12 workers, and other trades are actively using

13 asbestos-containing materials, and they would thereby be

14 exposed through dust in their facility.

15 MR. dopey defense lawyer: Okay, thank you.

16 That is all I have.

17 (The testimony was concluded

18 at 3:30 p.m.)

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1 REPORTERS CERTIFICATE

2

3 I, Kerry D. Halpern, Shorthand Reporter,

4 certify;

5 That the foregoing proceedings were taken

6 before me at the time and place therein set forth, at

7 which time the witness was put under oath by me;

8 That the testimony of the witness and all of

9 the objections made at the time of the examination were

10 recorded stenographically by me and were thereafter

11 transcribed;

12 That the foregoing is a true and correct

13 transcript of my shorthand notes so taken.

14 I further certify that I am not a relative or

15 employee of any attorney or of any of the parties, nor

16 financially interested in the action.

17 I declare under penalty of perjury under the

18 laws of the State of New Jersey that the foregoing is

19 true and correct.

20 Dated this 29th day of February, 2008.

21

22

23 KERRY D. HALPERN, Shorthand Reporter

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1 REPORTERS CERTIFICATION OF CERTIFIED COPY

2

3 I, KERRY D. HALPERN, Shorthand Reporter in the

4 State of New Jersey, certify that the foregoing pages 1

5 through 246, constitute a true and correct copy of the

6 original deposition of STEVEN MARKOWITZ, M.D., taken on

7 February 28, 2008.

8 I declare under the penalty of perjury under

9 the laws of the State of New Jersey that the foregoing is

10 true and correct.

11 Dated the 29th day of February, 2008.

12

13

14 KERRY D. HALPERN, Shorthand Reporter

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