One of the great asbestos trial lawyers of our time is my good friend Bobby Hatten from Newport News Virginia. Below is the cross of one of the main asbestos defense trial witnesses who testifies all over the country. The cross-examination is extremely informative and displays skills required of an experienced mesothelioma trial lawyer.
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3
4 CROSS-EXAMINATION
5 BY MR. HATTEN:
6 Q. Doctor, when we began you told us that you
7 were not an occupational disease physician, correct?
8 A. That’s correct.
9 Q. All right. But there is a doctor that you,
10 in fact, hired at the Jewish hospital where you work
11 who is a specialist in occupational disease; isn’t that
12 correct?
13 A. Yes.
14 Q. And her name is Dr. Brigitte Gottschall; is
15 that right?
16 A. That’s right.
17 Q. And Dr. Brigitte Gottschall is a
18 board-certified specialist in four areas: Pulmonary
19 medicine, internal medicine, critical care, and
20 occupational medicine, right?
21 A. Yes.
22 Q. And she has published articles in the
23 scientific literature that — she’s published articles
24 in the scientific literature that mesothelioma can
25 occur from any type of asbestos? You’re aware that
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1 she’s published that in the peer-reviewed scientific
2 literature?
3 A. Yes, I’m aware of that.
4 Q. And she has published that it is the
5 totality of asbestos exposure that causes mesothelioma;
6 is that right?
7 A. Yes. I’m aware of that.
8 Q. And, in fact, this is her article:
9 Occupational and Environmental Thoracic Malignancies.
10 And on page 195 of this article, written by
11 your colleague that you hired, she says that, “An
12 unknown proportion of mesotheliomas may have had
13 previous low level or bystander asbestos exposure.
14 Mesothelioma may occur after exposure to any type of
15 asbestos.”
16 That’s what your colleague published; is
17 that correct?
18 A. Yes. This is correct.
19 MR. BURNS: Can I have those two, please?
20 And the other stuff.
21 Thank you.
22
23 BY MR. HATTEN:
24 Q. And your colleague, like you — or unlike
25 you. You’ve never testified for a mesothelioma victim
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1 in a court, have you?
2 A. Not for a person with mes — I’ve not been
3 asked to. I have not done that.
4 Q. She has, though, right?
5 A. I believe so. I have not seen her
6 testimony.
7 Q. Let me read to you an excerpt from her
8 testimony, beginning at line 23:
9 ”Based on the various exposures that Ken
10 had, is there any way to say that one exposure did it
11 and another did not contribute to the cancer?”
12 And her answer is, “No. There is no way of
13 picking out one exposure as being causative for
14 mesothelioma. The way we think about that in the
15 medical community is really it’s the cumulative
16 exposure to asbestos that leads — that determines the
17 risk for developing cancer such as pleural
18 mesothelioma. It’s the totality of the exposure. It’s
19 the cumulative exposure. Each little bit adds to the
20 risk.”
21 She disagrees with you, right?
22 A. I’m not sure that she really would if she
23 were talking in the same context because the context
24 this is being asked, the data that supports this
25 concept comes from people that have very high-dose
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1 exposures, and if you have multiple types of high-dose
2 exposures, such as Mr. Herman did on different ships,
3 different places, I can’t pick one of those out and
4 say, This boiler caused it and that boiler room didn’t
5 cause it.
6 And I agree with that concept when you
7 speak of it in those terms. I can’t — among the
8 substantial exposures, I can’t say which one did and
9 which one didn’t.
10 But it’s interesting that nobody, including
11 Brigitte, would argue that the ambient air contributed
12 to it. So by definition they’re excluding that one.
13 If you think what I’m doing — the low levels –
14 Q. I don’t have a question pending, Doctor.
15 A. Okay.
16 Q. Your colleague said that a dose-response
17 relationship is — “Yes, we believe that cumulative
18 asbestos exposure contributes to the risk of developing
19 the disease. Nobody has been able to demonstrate a
20 threshold.”
21 MR. BURNS: Mr. Hatten, don’t go to the
22 next sentence with the number because you don’t want to
23 talk about the number.
24
25
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1 BY MR. HATTEN:
2 Q. So I think when, you know, a specific
3 number — wait. She doesn’t say a number.
4 A specific number above which asbestos
5 fiber exposure developing versus the low, which you
6 won’t, there is no low which exists, according to your
7 colleague. And this person was a brake mechanic. So
8 she disagrees with your opinion about brakes, she
9 disagrees with your opinion about cumulative, and she
10 disagrees with your opinion about low exposures; is
11 that correct.
12 A. I haven’t really discussed this with her,
13 and I think that if you were really talking about
14 ambient air and the really low levels, I don’t think
15 she would disagree with me.
16 Q. Did I ask you about ambient air?
17 A. Well, the levels of exposure you’re talking
18 about are below ambient air.
19 Q. Did I ask you about ambient air?
20 A. No.
21 Q. Thank you.
22 And on page 29 she states, “There is
23 certainly a background level that people have been
24 exposed to, but the occupational exposure is typically
25 way above that.”
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1 Again, your colleague disagrees with you?
2 A. This is exactly — now you have asked me
3 about ambient air. And this is exactly what I’ve been
4 saying, so leave this up for a second.
5 She says there is certainly a background
6 level. Put it back there so I can discuss it.
7 There is certainly a background level.
8 That’s ambient air. And then she goes on to say, but
9 the occupational level is typically way above that.
10 Now, I would agree if you have occupational
11 levels way above that, it’s a problem. She and I don’t
12 disagree. But it is when you have occupational levels
13 that are below that I don’t think there is any evidence
14 they cause disease. And that’s why I think if you
15 really got Brigitte in the courtroom and we sat next to
16 each other, you wouldn’t find that much disagreement,
17 although I think she is — she may call some disease
18 where I wouldn’t, but fundamentally we’re coming from
19 the same rough position.
20 Q. In that chart you just showed the jury, for
21 brake exposures you showed zero risk?
22 A. That’s correct because –
23 Q. And this is a brake exposure occupational
24 case.
25 A. So note that. When she reaches that
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1 conclusion, she reaches it with no data. There are
2 only seven good case-controlled epidemiology studies
3 for brake mechanics and mesothelioma. All seven say
4 that there is no elevated risk for mesothelioma. And
5 obviously she didn’t consider that or she was talking
6 about that as the only exposure in this case.
7 Q. Or there was information she knew that you
8 don’t.
9 A. I don’t think so because I think I’ve read
10 this literature probably more thoroughly than she has.
11 Q. And then you said, “I believe all asbestos
12 fibers can cause…” –
13 MR. BURNS: She said that.
14
15 BY MR. HATTEN:
16 Q. She said, “Yes, I believe…” — the
17 question was, “Do you have an opinion as to the
18 carcinogenicity — that means the capacity to cause
19 cancer — of each of these types of fibers that you
20 just mentioned?”
21 And she says, “I believe all of them can
22 cause mesothelioma.”
23 ”And that would include the fiber
24 chrysotile?”
25 She said, “Correct.”
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1 So, again, your colleague disagrees with
2 you?
3 A. Again, I don’t — you’ve left dose out of
4 the statement. Remember, I said that I couldn’t rule
5 out chrysotile as a cause at high dose.
6 So when you — you’ve — they’ve asked the
7 question in such a way that you’ve removed dose from
8 the question to make it look like there is no apparent
9 difference.
10 Q. Does she mention high dose?
11 A. That’s what I mean. We’re not discussing
12 dose here.
13 Now, I think she may be more willing to say
14 that lower levels will cause it, but she’s not going to
15 argue that ambient levels would cause it. And she has
16 absolutely no data to say that brake mechanics develop
17 this disease because every single study of brake
18 mechanics in five different countries have shown that
19 they have no increased risk of mesothelioma.
20 Q. So the doctor who is board certified in
21 occupational medicine disagrees with the doctor who is
22 not; is that what’s going on here?
23 A. I don’t think so.
24 MR. BURNS: Objection to form.
25 Argumentative.
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1 THE WITNESS: I think you’re creating more
2 disagreement than really there is.
3 THE COURT: Overruled.
4 THE WITNESS: But Brigitte is a good
5 colleague and good friend and I did recruit her to
6 National Jewish and I think she is a superb physician.
7
8 BY MR. HATTEN:
9 Q. I noticed you talked about ambient air, and
10 I want to talk about that for just a minute.
11 You’re familiar with this book, Asbestiform
12 Fibers, published by Nicholson, 1984? It’s actually
13 published by the National Research Council.
14 A. I’ve seen it before, but I haven’t read it
15 for years, so I couldn’t say I’m really familiar.
16 Q. You’re aware of the fact that in this book
17 they have a list of ambient air values?
18 A. Yes.
19 Q. And that’s based upon studying that subject
20 all over the United States, correct?
21 A. It does. If you’ll get the whole book,
22 you’ll find they have a miscalculation — an error in
23 their calculation of dose on that. When you look at
24 the footnotes of that page and refer back to the
25 original studies, there is a multifold error in their
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1 calculation of dose in that study.
2 Q. Well, in the book this is what they report.
3 And you said the typical East Coast city is like New
4 York, but this study shows you — let me go back.
5 You said in the number that you put up that
6 the number is typical for New York City, .003, and that
7 in other cities around the country these numbers of 01
8 and 02 are similar.
9 Well, in fact, your number for New York
10 City left off a zero, and it actually — it should be
11 .0004, and in — but we don’t live in New York City,
12 and neither did Mr. Herman live in New York City. For
13 the air of most cities in the United States, it’s four
14 zeros and a five. That’s five-ten-thousandths. Is
15 that right?
16 A. No.
17 Q. That’s what the chart says, isn’t it?
18 A. That’s what the chart says, but I can
19 explain the error in the chart if you’d like.
20 Q. And the chart says that the outdoor
21 controls for average cities around the country — here
22 are the numbers. They’re all a lot lower than what was
23 on your chart, right?
24 A. That’s right. This chart does show
25 lower — there is no question. I considered this chart
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1 very carefully. If you’ll notice, the data I gave for
2 New York City came from the Agency for Toxic Substance
3 and Disease Registry, a U.S. government agency that
4 published it about ten years ago.
5 This, from the 1980s, has a major error in
6 how you convert — they use an old, old counting method
7 that didn’t count fibers per cc but rather counted it
8 by an old method. And the method of converting from
9 the old method of counting to the proper new method of
10 counting had an error in it.
11 And you can find that by looking at the
12 tables and going back to the original publications.
13 But that’s why this one publication is out of — isn’t
14 validated by all the recent people that have looked at
15 this, including government agencies. So that the –
16 you know, it’s unfortunate that that one 1980-something
17 publication doesn’t have correct data in it.
18 Q. This is 2001. And this is the very article
19 you’re talking about, right?
20 A. No. The book –
21 Q. From Toxicology?
22 A. No. The ATSDR?
23 Q. Yes.
24 A. Nicholson’s report.
25 Q. I’m talking about the new one, the ASDC –
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1 the one you just mentioned.
2 A. Well, the 2002 report, which is not this
3 one, is the one where they calculated the — and this
4 is true. The ambient air levels –
5 Q. May I have the document back, please?
6 A. Yes.
7 MR. BURNS: What do you have?
8 MR. HATTEN: I have the Toxicology Profile
9 for Asbestos, published in 2001 by the United States
10 Department of Health and Human Services, Agency for
11 Toxic Substances and Diseases.
12
13 BY MR. HATTEN:
14 Q. And in this study they say, “Typical air
15 fibers in ambient air are four zeros and a 1 to three
16 zeros and a 1. And, again, that’s a lot lower than
17 what was on your chart, isn’t it?
18 A. Again, that one is, but if you look at my
19 chart — put my chart back up.
20 Q. Are these wrong, too?
21 A. Excuse me. Put my chart up.
22 Q. Are these wrong?
23 THE COURT: Whoa, whoa, whoa. All right.
24 Time out. Time out.
25 Okay. He asks the questions. You answer
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1 them. Don’t tell him what to do.
2
3 BY MR. HATTEN:
4 Q. Are these wrong, too?
5 A. They’re not wrong. For the reasons — if
6 you look at my chart, there are regions in the country
7 that were that low. And that’s correct, you can find
8 numbers like that. I had numbers lower than that in my
9 chart.
10 Q. This –
11 A. But the –
12 Q. This says typical. The typical — the
13 typical air concentration.
14 A. Yes. Typical. But you have to look at all
15 the measurements. We’re looking at the range. And the
16 report that I gave you from the ATSDR from New York
17 City came a year later than this one that gave New York
18 City-specific. So what –
19 Q. Are we in New York City?
20 A. No.
21 Q. Thank you.
22 Another doctor that works with you at the
23 Jewish hospital is Dr. Cecile Rose. Are you familiar
24 with her?
25 A. Yes.
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1 Q. And, again, unlike you, she practices
2 occupational disease medicine and is board certified in
3 that, correct?
4 A. That’s correct.
5 Q. All right. Now, Dr. Rose, in fact –
6
7 (An off-the-record discussion between Mr.
8 Hatten and Mr. Burns took place.)
9
10 MR. HATTEN: May I use PowerPoints? He
11 used PowerPoints.
12 MR. BURNS: What are you using?
13 MR. HATTEN: I’m saying what…
14 MR. BURNS: I agreed to one person putting
15 her opinions on, using the articles.
16 MR. HATTEN: I’m not using a transcript.
17 Just listen to the questions.
18 THE COURT: Wait a minute. I think he
19 objected to the question.
20
21 BY MR. HATTEN:
22 Q. I don’t have a question.
23 Do you know Dr. Cecile Rose?
24 A. Yes, I do know Cecile.
25 Q. And she is the head of the occupational
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1 medicine division at National Jewish? She’s the head
2 of the department, correct?
3 A. It’s a division. That’s correct.
4 Q. Okay. And Dr. Cecile Rose, in fact, signed
5 a — as a person on an article published in the medical
6 journals, called the International Journal of
7 Environmental Health? She signed on to an article
8 that — about asbestos causing mesothelioma?
9 THE COURT: Are you going to show him the
10 article?
11 MR. BURNS: Your Honor, I object to this.
12 What this is is an amicus brief that was filed with a
13 court in Michigan and reproduced in a journal as an
14 example of what scientists are saying in court. It’s a
15 legal amicus brief, not a scientific journal.
16 MR. HATTEN: This is a medical –
17 THE COURT: Do it the old way. Just read
18 it to him and go from there.
19
20 BY MR. HATTEN:
21 Q. This — he calls it an amicus brief. It
22 was republished in a medical journal, correct? Yes or
23 no is the answer.
24 A. It was republished in a journal. It’s not
25 a very good journal, but yes.
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1 Q. And this report is endorsed by
2 approximately 50 doctors, correct?
3 A. There’s about 50 signatures to it, yes.
4 Q. And the head of the occupational disease
5 section of your hospital signed on as a signatory of
6 this article; isn’t that correct?
7 A. Her name is listed as a signature.
8 Q. All right. And in this article these 50
9 doctors say, “There is general agreement among
10 scientists and health agencies that exposure to any
11 type of asbestos, serpentine, chrysotile, or amphibole,
12 can increase the likelihood of lung cancer,
13 mesothelioma, and pleural disorders.”
14 Do you see that?
15 A. Yes.
16 Q. All right. And in this report they say
17 that, “In reaching the conclusion that chrysotile
18 causes asbestos mesothelioma, scientists properly
19 considered numerous accepted sources of scientific
20 data, including epidemiological studies, case reports,
21 and a series of case reports, controlled animal
22 experiments, and toxicology studies.”
23 That’s what they said, correct?
24 A. That’s correct.
25 Q. And this was an article about someone who
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1 got mesothelioma from exposure to chrysotile in brakes,
2 correct?
3 A. I don’t recall that. That’s an amicus
4 brief written to the Michigan Supreme Court on a case,
5 but I don’t recall the details of the case.
6 Q. The — you’ve read this, haven’t you?
7 A. I have, but –
8 Q. I want to refresh –
9 A. – I wasn’t trying to remember the case
10 details.
11 Q. You remember that it was about the claim of
12 the asbestos brake manufacturers that it didn’t cause
13 mesothelioma, and this brief was written and signed by
14 all these doctors to say that chrysotile does cause
15 mesothelioma in brakes? That was the purpose of this
16 brief, correct?
17 A. I think it is a brief about a case
18 involving brake workers, yes. And they’re trying to
19 argue to the Michigan Supreme Court, who is holding
20 that on appeal.
21 Q. And in this brief that these 50 doctors
22 signed, and that Cecile Rose signed, they say, “There
23 is no safe level of exposure to asbestos. Even
24 exposure at current regulatory levels results in excess
25 mesotheliomas. Accordingly, the consensus…” — now,
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1 a consensus is a majority, correct?
2 A. Sort of, yes.
3 Q. ”…the consensus of the scientific
4 community is that occupational or
5 paraoccupational…” — that means like housewives,
6 bystanders, people that are not directly working with
7 the product, correct?
8 A. Yes.
9 Q. – “…to asbestos, even brief or low-level
10 exposures, must be considered causal in an individual
11 with mesothelioma.”
12 That’s what they said, right?
13 A. I don’t agree with it, but that’s what they
14 said.
15 Q. And the people that signed on — and one
16 other quote from this article. ”The mainstream
17 scientific community has long recognized and continues
18 to recognize today that there is no safe level of
19 exposure to asbestos. Excessive cancer risk has been
20 demonstrated at all fiber concentrations. Evaluation
21 of all available human data provides no evidence for a
22 threshold for a safe level of asbestos exposure.”
23 And, again, you don’t agree with that?
24 A. I have given you data that doesn’t agree
25 with it, but, yes, that’s what they said.
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1 Q. And the people that signed this were not
2 just 50 doctors off the street; these are people from
3 all over the world who specialize in epidemiology and
4 occupational lung disease; isn’t that correct?
5 A. They come from a variety, many of them from
6 prestigious places. And you’re correct that there is a
7 prestigious list of people that signed this.
8 I think it’s an advocacy document. I can’t
9 otherwise explain why they did that.
10 Q. All of these 50 doctors are advocating
11 what’s in this — in this statement?
12 A. I don’t know that they all — they have
13 their names attached to it, but I don’t know what level
14 each — I would be embarrassed to have my name on that.
15 Q. Now –
16 A. I don’t know what level of consent these
17 people actually gave, but their names were clearly
18 published with it.
19 Q. Now, Dr. Dement has conducted epidemiology
20 of people working in chrysotile textile mills in South
21 Carolina, correct?
22 A. That’s correct.
23 Q. And he concludes that chrysotile causes
24 mesothelioma, from his research, correct?
25 A. I believe that he does.
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1 Q. And Dr. Ronald Dodson, he’s a man that’s
2 written a book on asbestos, and he concludes that short
3 asbestos fibers contribute to cause mesothelioma,
4 doesn’t he?
5 A. I think he said that. That’s clearly
6 outside the mainstream and not the consensus in the
7 field.
8 Q. We have people from international places on
9 here. We have Arthur Frank. Arthur Frank is from
10 Drexel. And he was with at one time the Mount Sinai
11 Hospital in New York. Correct?
12 A. That’s correct.
13 Q. He studied under Dr. Selikoff, who was one
14 of the pioneers in discovering information about
15 mesothelioma?
16 A. That’s true.
17 Q. And so we have other people over here.
18 Peter Infante, he’s an epidemiologist; is that correct?
19 A. Yeah. I don’t know him.
20 Q. And we have these folks from — we have
21 them from India, we have them from the University of
22 Massachusetts, we have Drexel, we have people from all
23 over the United States, the Environmental and
24 Occupational Health Graduate Schools of Public Health.
25 We have professors of pathology. We have the
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1 International Center for Occupational Disease in
2 California. We have Dr. Landergan, another person that
3 came out of Mount Sinai in New York. We have Dr. Lee.
4 He’s from Australia. He’s one of the most well –
5 well, he’s an epidemiologist in Australia, correct?
6 A. I don’t know him personally.
7 Q. You know his writing, don’t you?
8 A. Actually, I don’t.
9 Q. You don’t know he’s an epidemiologist from
10 Australia?
11 A. I don’t know Dr. Lee’s work.
12 Q. Okay. You haven’t seen his book in
13 publications about mesothelioma?
14 A. I don’t think I’ve seen that one.
15 Q. Others from Mount Sinai. A Dr. Mark. Dr.
16 Mark is Massachusetts General, Harvard. We have people
17 from Scotland. And this is just the first page.
18 Let’s see what’s on the top of the next
19 page, because I think the jury might like to know.
20 Who is David Michaels?
21 A. I only know him by reputation, so I don’t
22 know.
23 Q. He’s the director of OSHA for the United
24 States of America, isn’t he?
25 A. I haven’t paid attention. If he’s current
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1 director, that’s fine.
2 Q. We have University of Colorado. We have
3 Christine Oliver at Cambridge. That’s another –
4 Harvard. She’s a Harvard doctor.
5 Italy. Canada. As far away as Chile.
6 Boston University.
7 And the director of occupational disease in
8 your hospital signed on as a signatory of this document
9 with all those people, correct?
10 A. That’s correct.
11 Q. In the 1980s and 1990s OSHA and NIOSH have
12 all studied the capacity of different asbestos fibers
13 to cause mesothelioma, correct?
14 A. They’ve done — they’ve had committees that
15 have looked at that, yes.
16 Q. And they’re committees of doctors,
17 epidemiologists, and people that have done animal
18 research like yourself, correct?
19 A. That’s correct.
20 Q. Okay. And in 1986 they said, “To summarize
21 the data, human epidemiological studies have suggested
22 that amphibole is associated with a greater risk than
23 exposure to chrysotile. No clear differential risk has
24 been demonstrated. Animal experiments have indicated
25 that chrysotile is a more potent carcinogen than
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1 amphiboles.”
2 That’s what they found in 1986?
3 A. I can explain that if you like, but that’s
4 what –
5 Q. Did they find that in 1986?
6 A. That’s what they reported.
7 Q. That’s what they reported.
8 A. They didn’t do the work. That’s what their
9 interpretation of the data is.
10 Q. They said that, “OSHA agrees that the
11 epidemiological and animal evidence taken together
12 failed to establish a differential risk. Accordingly,
13 OSHA has recognized all types of asbestos as having the
14 same carcinogenic potential.”
15 That’s what they said, correct?
16 A. That’s correct.
17 Q. And they also said, “The suggestion that
18 there are dramatic differences between the different
19 asbestos varieties has no basis in fact.”
20 And then they said, “Mesothelioma has been
21 documented in a variety of nonoccupational
22 circumstances, including families. Notable family
23 contact cases can be seen with exposure to chrysotile,
24 amosite, and crocidolite. Relative to the risk at
25 work, there appears to be little difference in the
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1 family contact risk by fiber type. Animal studies
2 substantiate and suggest varieties of asbestos should
3 be considered equally potent.”
4 So in 1986 the government certainly
5 disagreed with what you’ve said today, correct?
6 A. It’s not quite that simple, but, yes, they
7 wrote — the statements they have on the face are
8 substantially different. If you get out the studies
9 that they looked at and actually look at the studies
10 and the tables, their results actually support what I
11 told you. Take a few minutes to go through that. But
12 they only looked at six studies. And the — actually,
13 four for here and six with the EPA.
14 Having said that, you correctly stated what
15 they wrote in that document.
16 Q. Since that time lots of other government
17 agencies have also looked at this issue about whether
18 chrysotile causes mesothelioma. This is in evidence.
19 And all these people have concluded — all these
20 different government agencies have concluded that
21 chrysotile causes mesothelioma, correct?
22 A. That is correct.
23 Q. In fact, no government agencies have
24 concluded that chrysotile does not cause mesothelioma?
25 A. From a regulatory position, no one has
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1 taken that regulatory position.
2 Q. And so it’s your opinion that all these
3 scientists at OSHA misinterpreted the data and that you
4 have divined that they are all wrong?
5 MR. BURNS: Object to form. Argumentative.
6 THE COURT: Overruled. Go ahead.
7 THE WITNESS: I don’t think you can
8 conclude that every scientist there agreed with that
9 statement. That’s what they taught, first of all. So
10 I don’t necessarily agree — I don’t necessarily
11 disagree with all of the scientists. And I don’t
12 disagree with their facts that they used to evaluate
13 it. But the — I do disagree with the final
14 conclusions on this part of it. And I think these are
15 conservative regulatory positions, for which I actually
16 agree with that. From a conservative point of view,
17 and taking a government position on looking at the
18 studies they looked at, they made a very conservative
19 and an appropriate decision.
20
21 BY MR. HATTEN:
22 Q. All right.
23 A. That part I do agree with.
24 Q. The World Health Organization is not a
25 regulatory, body; is that correct?
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1 A. Not formally.
2 Q. The World Health Organization is a group of
3 scientists who are from all over the world who study
4 different substances to determine if they cause
5 disease, correct?
6 A. I think the World Health Organization is a
7 political organization, part of the — you know, part
8 of the United Nations, but it then engages groups that
9 include scientists from around the world.
10 Q. And the World Health Organization concluded
11 that, “Exposure to chrysotile poses increased risk for
12 asbestosis, lung cancer, mesothelioma, in a
13 dose-dependent manner. No threshold has been
14 identified for carcinogenic risk.”
15 Am I correct that that was their conclusion
16 in studying the world literature about chrysotile?
17 A. I don’t know — I don’t — first of all,
18 when you read what they did, there is no evidence they
19 did a thorough study of the world literature, but that
20 is correctly what they said in that book.
21 Q. Well, they published a 145-page book that
22 has about 300 references in it. What do you think they
23 did?
24 A. There is about 10,000 references already
25 written on that. So there is no evidence they did an
140
1 exhaustive — that group doesn’t always have a track
2 record of having thoroughly looked at the –
3 Q. You disagree with the World Health
4 Organization?
5 A. I’m only saying that this doesn’t represent
6 a complete, exhaustive search of the literature.
7 You’ve read their final conclusion, which I think from
8 a government or regulatory position it’s not
9 inappropriate to be conservative. But it misses a lot
10 of facts about what is actually taking place.
11 Q. You worked for NIOSH, right?
12 A. No.
13 Q. I thought you were employed at NIOSH for
14 some period of time.
15 A. No. That’s not correct.
16 MR. BURNS: NIH.
17
18 BY MR. HATTEN:
19 Q. Okay. You didn’t work at NIOSH.
20 NIOSH is the scientific arm of OSHA,
21 correct? They do the scientific investigation for
22 OSHA?
23 A. That’s one way to interpret it, yes.
24 Q. And they’re the ones that make scientific
25 recommendations to OSHA, correct?
141
1 A. They do do that, yes.
2 Q. And they’re the ones that review the
3 scientific literature about different substances, like
4 asbestos, correct?
5 A. Yes. That’s one of the things they do.
6 Q. And in 1980 NIOSH published that,
7 “Chrysotile is as likely as crocidolite and other
8 amphiboles to induce mesothelioma. And human
9 occupational exposure to all commercial types of
10 asbestos, both individually and various combinations,
11 have been associated with high rates of asbestosis,
12 lung cancer, and mesothelioma.”
13 A. You didn’t read that correctly. That
14 sentence says, “Chrysotile is as likely as crocidolite
15 and other amphiboles to induce mesothelioma after
16 intrapleural injection.” That’s not after inhalation.
17 Q. You’re exactly right. So that’s in animal
18 studies?
19 A. Yes. But, no, it’s very — when you inject
20 the fiber into the pleural space, it gets around all
21 the defense pathways for clearance and it puts a large
22 number of large fibers in that space immediately. And
23 when you do that, you can create mesotheliomas with
24 almost any lung fiber substance, including Fiberglas,
25 which doesn’t cause it. So that method doesn’t test
142
1 the hypothesis.
2 Q. But the next sentence, Doctor, is that
3 “Human occupational exposures to all types of asbestos
4 individually and in various combinations have been
5 associated with high rates of asbestosis, lung cancer,
6 and mesothelioma.”
7 Now, that’s not injecting it into their
8 pleura, is it?
9 A. But that’s also –
10 Q. Is it?
11 A. No. That –
12 Q. Is it?
13 A. That’s by inhalation.
14 Q. Is that injecting it into their pleura?
15 A. No, it’s not.
16 Q. Thank you.
17 More recently, in the 2001 Toxicology
18 Profile for Asbestos, published by our government,
19 Department of Public Health, they say that, “Despite
20 the dispute in the scientific literature concerning the
21 issues, the U.S. and international agencies concur
22 exposure to any type of asbestos, including chrysotile,
23 can cause asbestosis and mesothelioma.”
24 That’s 2001. Correct?
25 A. Yes.
143
1 Q. That’s what our government says?
2 All right. Now, in 2012, just this past
3 year, the World Health Organization revisited this
4 issue about whether or not all forms of asbestos cause
5 mesothelioma, correct?
6 A. That’s correct.
7 Q. And, again, they concluded that all the
8 types of asbestos cause mesothelioma, all forms are
9 carcinogenic to humans: Tremolite, amosite,
10 chrysotile. And this is 2012, correct?
11 A. That’s correct. You read that correctly.
12 Q. Now, this 2012 monograph was produced by
13 epidemiologists, correct?
14 A. Yes. There were epidemiologists on that
15 panel.
16 Q. And scientists from all over the world?
17 A. I don’t remember exactly where they all
18 came from, but that’s generally correct.
19 Q. And they also concluded that all forms of
20 asbestos, including chrysotile, were genotoxic,
21 correct?
22 A. I believe they did include that in the
23 conclusion.
24 Q. And genotoxic means it causes cancer by
25 impairing the DNA; is that correct?
144
1 A. It means it can create changes in genes.
2 That’s done — it’s important to note that the
3 genotoxic experiments, which is done on all drugs and
4 all materials, is done in a culture dish. And you’re
5 dealing with very high exposure levels in and directly
6 on the cells and looking at DNA changes. That doesn’t
7 mean that you get that same change in the human body at
8 lower doses.
9 So you have to be careful. It’s classified
10 as that, but the — but then you have to ask whether it
11 actually occurs with that dose under a certain
12 condition of exposure. And that’s true for all drugs
13 and it’s true for all these fiber types.
14 So using that technology, you would
15 classify all — you’d — actually, you’d classify every
16 lung fiber as a genotoxic agent.
17 Q. When it is a genotoxic agent, an agent that
18 causes cancer by impairing the DNA, what does the
19 government say about what the shape of the
20 dose-response curve is?
21 A. The conservative regulatory position is to
22 make a linear one, but, in fact, all genotoxic agents
23 have a curvilinear core when you actually do the work
24 on it.
25 For example, I do a lot of work with drug
145
1 development and the FDA. And there are many genotoxic
2 drugs, but there is levels that are safe for them to
3 use that are not genotoxic. And you have to
4 understand –
5 THE COURT: He’s just on automatic up here.
6 Did you want to participate?
7 MR. HATTEN: I know. I haven’t got any
8 question pending. I know he likes to talk.
9 THE COURT: You two are over there. But we
10 were having fun over here.
11
12 BY MR. HATTEN:
13 Q. I wondered if you’d stop.
14 If it is a genotoxic carcinogen, the
15 presumption is that it is a linear dose curve, correct?
16 A. From a regulatory point of view or
17 scientific point of view? Which are you asking me
18 from?
19 Q. From an EPA, Environmental Protection
20 Agency, point of view.
21 A. That is a regulatory point of view. Almost
22 all regulatory agencies, to be very careful, use linear
23 dose-response curves for that. That’s not the science,
24 but it’s the regulatory safety position.
25 Q. Now, the issue about whether or not –
146
1 well, your interpretation of the small fibers is that
2 they’re meaningless, is that correct, in the pleura?
3 A. Basically, the answer is yes. The small
4 fibers do not create risk for disease in the pleura.
5 Q. Doctor, isn’t it true you’ve never studied
6 any asbestos fibers in the pleura, in your rats or
7 otherwise?
8 A. In my studies I have not looked at that,
9 but I have read the literature on this extensively. So
10 I know the literature about this topic. And there is
11 no evidence that small fibers create risk for cancer
12 changes in the pleura.
13 Q. The published literature is published
14 because — it’s something that gets published because
15 it passes what’s called scientific review; people
16 review it, peer review it, and publish it, correct?
17 A. It should be. Yes. You’ve got to read it
18 carefully to be sure, but one of the standards of the
19 scientific literature is that it undergoes peer review.
20 Q. And among the published literature on this
21 you mentioned Dr. Suzuki, and the jury heard Dr. Maddox
22 talk about Dr. Suzuki. Dr. Suzuki actually did this
23 work and found short, thin — large numbers of short,
24 thin asbestos fibers in the pleura of people that have
25 mesothelioma, correct?
147
1 A. Yeah. Well, this is his — one of his
2 publications where he reports finding these short
3 fibrils in the pleura.
4 Q. Right.
5 And he put at the end his conclusion from
6 his research that, “We conclude short, thin asbestos
7 fibers appear to contribute to the causation of human
8 malignant mesothelioma.”
9 And that wasn’t the only article he wrote?
10 He wrote a half a dozen of them, didn’t he?
11 A. Can I comment on that?
12 Q. Did he write that?
13 A. He wrote that. I’m asking, can I explain
14 it?
15 Q. I’m just asking, is that in the
16 peer-reviewed, scientifically-reviewed medical
17 literature?
18 A. Yes, it is.
19 Q. And you disagree with it?
20 A. I disagree. Actually, I — I don’t
21 disagree with his finding. I would disagree with his
22 conclusion.
23 Q. Okay. But you yourself have never done any
24 such work, have you?
25 A. No, I have not personally done this type of
148
1 work.
2 Q. Now, you’ve suggested that there wasn’t a
3 scientific basis for this linear dose-response and that
4 it was just regulatory. Is that what you said?
5 A. That’s — yes, that’s basically — that’s a
6 basic summary for it. It’s not based on evaluations of
7 low-level data.
8 Q. Okay. Let’s see what — this is a letter
9 from OSHA to a Mr. William Dyson. And in this
10 letter — small print — it says, “Has the theoretical
11 risk shown by the mathematical finding model been
12 confirmed by scientific observation?”
13 And I’m going to read it to the jury
14 because it may be — I’m sure you can’t see it over
15 there. It says, “The mathematical model used to assess
16 risk is based on scientific observation. On
17 epidemiological studies of disease in cohorts of
18 exposed workers, it cannot be considered to present
19 theoretical risk since it is a real world model
20 constructed from real world studies of workers who were
21 made ill and died of asbestos exposure. The studies
22 support the use of the linear model. In view of such
23 evidence, OSHA did not have the freedom to postpone
24 action until an epidemiological study became available
25 that confirmed OSHA’s risk assessment through
149
1 observation of excess deaths of exposed workers. Such
2 an epidemiological study would entail following an
3 extremely large cohort of employees who were exposed at
4 levels below the PEL for the lengthy period of time
5 necessary to account for the latency of cancer. It
6 remains OSHA’s responsibility to make practical
7 inferences about occupational health risks on the basis
8 of existing evidence.”
9 That’s what they wrote, right?
10 A. But basically they just said what I said.
11 They said they don’t have any data at low levels and so
12 they guessed it.
13 Q. From the basis of that — that was their
14 scientific analysis, OSHA’s scientific analysis, right?
15 A. If you go back and look at the articles
16 they used, there were a total of four by OSHA and six
17 by the EPA. All of those were at high dose levels.
18 They quote no low-level dose in those
19 studies and they said, We had to make a decision
20 without waiting for data at low levels and therefore we
21 just do a straight line.
22 That’s exactly what I’ve been saying.
23 Q. The –
24 MR. BURNS: What do you have?
25 MR. HATTEN: The textbook.
150
1 BY MR. HATTEN:
2 Q. You’re familiar with Drs. Dail and Hammar?
3 A. Yes.
4 Q. And this is a reliable and respected
5 textbook?
6 A. That is a respected textbook.
7 Q. And –
8 MR. BURNS: What page?
9 MR. HATTEN: 587.
10
11 BY MR. HATTEN:
12 Q. And this textbook says that, “When there
13 are multiple asbestos exposures, each contributes to
14 cumulative exposure and hence to the risk and cause of
15 malignant mesothelioma.”
16 You disagree with that, too, don’t you?
17 A. Well, I would — in the extreme, I would.
18 For example, if I were just to ask them, Would you
19 include ambient air in that risk factor, they would say
20 no. So that’s an example where low levels aren’t
21 considered. But in looking at high-level exposures, do
22 they all contribute, you would say, yes, you can
23 separate between them.
24 Q. He doesn’t say high level, does he?
25 A. For example, they ignore the issue of
151
1 ambient air. Do they say ambient air would contribute,
2 too? If –
3 Q. You disagree with this text? They’re
4 talking about occupational exposure, not ambient air.
5 You understand that, don’t you?
6 A. They’re talking about substantial,
7 high-level occupational exposures. In that context, I
8 would agree with them.
9 Q. Do they say that in this book?
10 A. No, but they also say they don’t consider
11 the low levels like ambient.
12 Q. Do — they don’t say anything about ambient
13 air contributing, do they?
14 A. That’s a very important omission.
15 Q. Okay. They talk about each occupational
16 exposure contributing, don’t they, just like the
17 doctors who work at your hospital?
18 A. And what they’re talking about from their
19 data are the high-level occupational exposures. They
20 really don’t consider — or — or — the issue of
21 ambient air and occupational-level exposures that are
22 below ambient air.
23 It’s a — it’s people making arguments that
24 — without considering the entire data range and
25 without talking about the entire data range.
152
1 MR. BURNS: What do you have?
2 MR. HATTEN: This is the American Cancer
3 Society.
4
5 BY MR. HATTEN:
6 Q. I’m sure you’re familiar with the American
7 Cancer Society?
8 A. I am.
9 Q. And the American Cancer Society — do you
10 think they know how to evaluate scientific evidence?
11 A. Well, they’re an organization. I assume
12 there are people on that that understand this
13 effectively.
14 Q. They say that, “Although the risk of
15 developing mesothelioma increases with the amount of
16 asbestos exposure, there is no way to measure the
17 minimum amount of asbestos exposure that can lead to
18 mesothelioma.”
19 Now, that’s the American Cancer Society.
20 You disagree with that?
21 A. I agree it’s very hard to measure that.
22 Q. You agree what?
23 A. I agree that it’s very hard to measure the
24 minimum amount.
25 Q. It says there’s no way.
153
1 A. I would say that it’s very hard. For
2 example, I keep bringing up the ambient. They’re not
3 down at that level because if they — if you ask
4 anyone — if you just — if you ask any one of these
5 agencies, any one of these organizations, does ambient
6 air create risk, they’re going to say no.
7 Q. And the ambient air that you measured, that
8 you tried to tell the jury about, was a lot higher than
9 the ambient air I showed you in those reports, correct?
10 A. It is, but, remember, it’s the high levels
11 of ambient air that are the issue because you want to
12 know if any of the ambient air creates risk. So we
13 know the low levels don’t create it. But on the cities
14 that have high levels, do they have an increased
15 mesothelioma rate? And the answer is no.
16 Q. You’re familiar with the American
17 Industrial Hygiene Association?
18 A. Yes.
19 Q. And that’s a respectable, reliable
20 organization?
21 A. It’s a very respectable organization.
22 Q. You’re not a member?
23 A. I’m not.
24 Q. Because you’re not an industrial hygienist?
25 A. That’s correct.
154
1 Q. But the American Industrial Hygiene
2 Association says, “Asbestos is a known human carcinogen
3 with no safe threshold of exposure.”
4 You disagree with them, too?
5 A. I would disagree with that.
6 Q. The World Trade Organization, do you know
7 them?
8 A. Yes.
9 Q. The World Trade Organization is a group
10 that has banned asbestos in Europe and other places,
11 correct?
12 A. That’s correct.
13 Q. All right. And they have concluded that on
14 the basis of scientific evidence, no minimum threshold
15 level of exposure or duration has been identified with
16 regard to the risk of pathologies associated with
17 chrysotile except for asbestosis.
18 You disagree with them?
19 A. I would disagree with that, yes.
20 Q. This is a report from Australia. Australia
21 scientists, to be short, also have concluded that there
22 is no threshold that’s been delineated for
23 asbestos-related mesothelioma.
24 Do you disagree with them?
25 A. Yes. I would disagree with that statement.
155
1 Q. Do you know Dr. John Godleski?
2 A. Yes.
3 Q. He is an epidemiologist at Harvard,
4 correct?
5 A. Yes.
6 Q. And he has concluded that there is no known
7 threshold for asbestos exposure below which there is no
8 risk of mesothelioma?
9 A. I don’t remember that exactly. Again, he
10 must be talking about occupational exposures, not the
11 low levels that I’ve been talking about.
12 Q. We’re talking about occupational levels.
13 This case is about occupational levels. You understand
14 that, right?
15 A. I think the issue in this case is an
16 occupational exposure to a level of chrysotile that’s
17 below ambient.
18 Q. All right. You have not even reviewed the
19 evidence that’s been admitted about exposure in this
20 case, have you?
21 A. I’ve read all the deposition testimony.
22 Q. You have not reviewed the information that
23 has been submitted in this case about the testing
24 evidence that is before this Court?
25 A. Well, I don’t know what happened before I
156
1 came to testify, but I have read all the studies that I
2 know that are available on gaskets and packings and I
3 have read all the deposition testimony that relates to
4 this case.
5 Q. You have not read, nor evaluated, any
6 studies except the peer-reviewed studies that were paid
7 for by Garlock, correct?
8 MR. BURNS: Object to form.
9 THE WITNESS: That’s not correct. That’s
10 absolutely not correct.
11 THE COURT: Sustained.
12
13 BY MR. HATTEN:
14 Q. In your report on the — in your report on
15 this case, the peer-reviewed studies that you listed
16 were by Dr. Mangold, right, one of them?
17 A. That was one, yes.
18 Q. He’s a Garlock consultant, correct?
19 A. That’s only one thing that I read.
20 Q. That’s one.
21 Number two was Boelter, right?
22 A. I’ve read Boelter as well.
23 Q. That’s another Garlock expert, right?
24 A. That’s only one of about 20 I’ve read.
25 Q. There were only three in your report.
157
1 A. You asked how many I read. In my report –
2 Q. In your report you only listed three. And
3 I’ve given you two of the three names, correct?
4 A. I think that’s correct, but that’s not all
5 that I read.
6 Q. Thank you. That’s all I asked. In your
7 report for this case.
8 Are you aware that Congress has also looked
9 at the issue and made a Congressional determination
10 that medical science has not established any minimum
11 level which is considered to be safe for individuals
12 exposed to the fibers?
13 A. I — I don’t recall reading that statement.
14 I don’t have any reason to disagree with it, but I
15 can’t read it from that document.
16 Q. So, Doctor, in this case am I correct that
17 you have not read studies that show fiber release from
18 asbestos gaskets being removed in the range of 70 to
19 7 — 7 to 70 fibers per cc? You’ve not read that, have
20 you?
21 A. Read that level? I have read studies done
22 by Dr. Longo that had very high numbers that were not
23 substantiated by any other industrial hygienists and
24 are out of the published range for multiple
25 publications, government publications, but I have read
158
1 some very, very high levels that came from Longo that I
2 would consider a deviant from the standard in the
3 field.
4 Q. Are you an industrial hygienist?
5 A. No.
6 Q. Are you a tester of asbestos products?
7 A. No.
8 MR. HATTEN: All right. I’d ask that his
9 opinion be stricken as to what was — what was
10 testified to by Dr. Longo, which he has no basis to
11 agree or disagree about.
12 THE COURT: He was commenting on studies,
13 not what Dr. Longo testified to.
14 MR. HATTEN: Sir?
15 THE COURT: He was commenting on studies he
16 read in response to your question, not testimony by Dr.
17 Longo. Overruled.
18
19 BY MR. HATTEN:
20 Q. The –
21 THE COURT: Did you want to object to that?
22 MR. BURNS: I was planning to, but you
23 overruled it. You stated the basis of my objection and
24 sustained my objection that I would have made.
25 THE COURT: I didn’t know if you wanted to
159
1 object to my sustaining your objection.
2 MR. BURNS: I didn’t. I would agree with
3 your sustaining.
4 THE COURT: Thank you.
5
6 BY MR. HATTEN:
7 Q. You disagree with testing by Dr. Longo and
8 you’ve never done any testing yourself?
9 A. That’s — well, no I — wait. Wait.
10 Q. Any product testing of gaskets and packing.
11 A. I measured lots of fiber in chambered
12 conditions with animal exposures. I’ve not done
13 product testing, but I have read many articles by many
14 different industrial hygienists who have done product
15 testing and I’ve looked for consistency between the
16 articles.
17 Dr. Longo stands out as a far extreme
18 that’s not validated by other people in his own field.
19 Q. You’re not in that field, are you?
20 A. I’m not.
21 Q. All right.
22 A. But I can read the literature.
23 Q. I can read it, too. Does that make me an
24 expert?
25 Assuming, Doctor, that the evidence of Dr.
160
1 Longo is uncontradicted in this case, you have no
2 evidence other than what is in the evidence in this
3 case of any testing that you can bring to this court,
4 do you?
5 MR. BURNS: Object to form. I contradicted
6 it while he was on the stand and I cross-examined. I
7 would disagree with his statement it was uncontradicted
8 in this case.
9 THE COURT: He was not here for Dr. Longo’s
10 testimony.
11 MR. HATTEN: Correct.
12 THE COURT: You’re asking him to comment on
13 testimony he didn’t hear and doesn’t know what Dr.
14 Longo said.
15 MR. HATTEN: Correct. So he can’t
16 contradict Dr. Longo. He doesn’t know what Dr. Longo
17 said.
18 MR. BURNS: And I would state that it’s
19 beyond the scope of the direct because I didn’t go
20 anywhere near almost any of this in my direct.
21 THE COURT: The question assumes the
22 answer.
23 Next question.
24 MR. HATTEN: Okay.
25 I think that’s all the questions I have.
161
1 Thank you very much.
2 MR. BURNS: Your Honor, I have some –
3 THE COURT: It’s kind of like a 12-second
4 delay in radio. We just wait.
5 MR. BURNS: I have some redirect. I
6 actually think if we took a five-minute break it would
7 probably save time than if I just started going through
8 it.
9 THE COURT: Sure. We’ll make it ten
10 minutes. How does that sound?
11 Leave your notebooks on the chairs. Go
12 with the bailiff to the jury room. Don’t discuss
13 anything about the case. It’s not time yet to do that.
14
15 (The jury exited the courtroom.)
16
17 THE COURT: Okay. Doctor, you can go down
18 and wander around. Again, you’re still on the witness
19 stand. Don’t discuss your testimony.
20
21 (Recess)
22
23 THE COURT: Okay. Bring the jury in.
24
25
162
1 (Whereupon, an off-the-record discussion
2 took place.)
3
4 (The jury entered the courtroom.)
5
6 THE BAILIFF: Nine jurors in the box.
7 THE COURT: Waive the poll?
8 MR. HATTEN: Yes, sir.
9 THE COURT: Thank you very much.
10 All right. Mr. Burns.
11
12 REDIRECT EXAMINATION
13 BY MR. BURNS:
14 Q. I’m going to try to be as quick as
15 possible.
16 Dr. Crapo, you were asked some questions by
17 Mr. Hatten about Brigitte Gottschall. And she works
18 with you?
19 A. Yes. Well, she works at National Jewish.
20 Q. And when did she come to National Jewish?
21 A. She trained there and finished her training
22 while I was chair, in the late 1990s, I think, early
23 2000s.
24 Q. So she trained underneath you?
25 A. Well, she trained — I was department
163
1 chairman, and she was trained in the occupational
2 medicine division. She was recruited there, I think,
3 by Lee Newman, the existing head of that division, and
4 then she stayed on for a faculty position when she
5 finished her training.
6 Q. Okay. I’m going to ask if you agree with
7 this sentence: ”Exposure to crocidolite is associated
8 with the highest rates of mesothelioma.”
9 Do you agree with that?
10 A. I do.
11 Q. ”Mesothelioma may occur after exposure to
12 any type of asbestos.”
13 If we go to the slide that we used on your
14 direct, I understood that, according to dose, you said
15 that that could occur, correct?
16 A. I said it could occur with high-dose
17 chrysotile, yes.
18 Q. Do you agree with this sentence, that,
19 “Mesothelioma may occur after exposure to any type of
20 asbestos”?
21 A. I do agree with that.
22 Q. Okay. It states, “Do you know that she is
23 of the opinion that it is the totality of the exposure
24 to asbestos that causes the disease mesothelioma?” And
25 I think you said to Mr. Hatten you agreed in part and
164
1 disagreed in part. Can you explain that?
2 A. I do agree that the high-level occupational
3 exposures, it’s the totality that does it, but I don’t
4 think that anybody that we’re discussing, from agencies
5 to Dr. Gottschall, really considered the really
6 low-level exposures like ambient. Those are simply not
7 considered when people are forming opinions like this.
8 And so I think that it is truly the
9 totality if you’re dealing with the high-level
10 occupational exposures from which the risk data came
11 from.
12 Q. Okay. Moving on. And this is her
13 peer-reviewed article, Dr. Gottschall. ”Mesothelioma
14 may occur after exposure to any type of asbestos.”
15 And, again, do you agree or disagree with
16 that if it’s high dose?
17 A. No. I agree with it if you consider dose.
18 Q. Okay. You went through with Mr. Hatten a
19 number of agencies. In fact, all the agencies.
20 A. That’s true.
21 Q. Governmental agencies that talked about
22 this from a regulatory perspective.
23 You stated — I think I heard you
24 correctly — that from a regulatory perspective, that
25 linear dose model was a reasonable approach to public
165
1 safety. What do you mean by that?
2 A. What I mean is that if your charge is to
3 develop policies and procedures to protect safety, you
4 like to err on the side of overregulating and getting
5 rid of even minimal risks.
6 If you don’t know what the risk is at low
7 levels, the safe thing to do is to do a linear
8 dose-response and then regulate based on that so that
9 you would not miss the opportunity to protect the
10 safety of the people exposed at low levels.
11 It doesn’t mean that you believe those low
12 levels actually cause it, but it means you want to
13 protect against unknown risks that you don’t have data
14 to evaluate.
15 Q. And this is question three that Mr. Hatten
16 showed you. I think this is some of the smallest –
17 wins the award for smallest type we’ve had on any
18 document.
19 But what they talk about here, and I’ll
20 read the part I want to focus on — the question was,
21 “Has the theoretical risk shown by the mathematical
22 model” — that’s the OSHA model we just talked about,
23 correct?
24 A. Yes.
25 Q. – “been confirmed by the scientific
166
1 observation? The mathematical model used to assess
2 risk is based on scientific observation, i.e., on
3 epidemiological studies of disease in cohorts of
4 exposed workers.”
5 Now, I’m going to lead you on this because
6 there’s been some rulings about what we can and can’t
7 talk about this.
8 A. Okay.
9 Q. But the cohorts of the exposed workers,
10 what level of exposure were all of those cohorts –
11 A. They were all –
12 Q. – exposed to?
13 A. They were all very high exposures. They
14 averaged anywhere from 100 –
15 Q. No, no, no, no, no. No numbers.
16 A. They were all just very high-dose
17 exposures.
18 Q. Okay. That’s why I’m leading. So they
19 were all high exposures?
20 A. Yes.
21 Q. And they talk about a theoretical risk.
22 Well, I’ll just move on.
23 Mr. Hatten showed you this, which was the
24 1989 OSHA Asbestos Work Group. And I’ll read the first
25 sentence. ”Chrysotile is as likely as crocidolite or
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1 other amphiboles to induce mesotheliomas after
2 intrapleural injection.”
3 And you sort of talked about that. But
4 what’s an intrapleural injection?
5 A. That means you take the chrysotile, salify
6 it in some water, and stick a needle into the chest
7 wall and inject it right onto the pleura.
8 Q. All right. And, again, because of some
9 rulings of the Court and some things we discussed, I’m
10 going to ask a very focused question.
11 We went over the body’s defense mechanism,
12 and you talked about how that broke chrysotile down.
13 If we did an intrapleural injection, would
14 any of those defense mechanisms be in play?
15 A. No. No. You’d circumvent them all.
16 Q. Okay. And I think you stated on
17 intrapleural injection you could get mesothelioma with
18 things that weren’t asbestos?
19 A. That’s true.
20 Q. And why is that?
21 A. Well, it’s because you put a massive
22 stimulus into the pleural space without letting any of
23 the body’s degradation or defense mechanisms clear or
24 act on it. And as a result, virtually any lung fiber
25 will cause a mesothelioma if you put it in that space.
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1 Q. Okay. And then the last thing I want to
2 discuss with you — we have some more things about
3 OSHA, but, again, from a regulatory point of view,
4 you’ve already stated you think they started with
5 higher exposures and extrapolated down for protection.
6 Is that a good summary?
7 A. That’s a good summary.
8 Q. The last thing I want to talk to you about
9 is this amicus brief that you discussed with Mr.
10 Hatten.
11 First of all, it was published — it was
12 reprinted in the International Journal of Occupational
13 and Environmental Health. I think you said you didn’t
14 have a very high opinion of that journal. Why is it
15 that you don’t have a high opinion of that journal?
16 A. It does not have a track record of
17 publishing good, high-quality, peer-reviewed articles.
18 And so it’s a journal I would not rely on.
19 Q. So this article is entitled, Asbestos
20 Exposure Causes Mesothelioma but Not This Asbestos
21 Exposure, An Amicus Brief to the Michigan Supreme
22 Court. And, again, I’ll lead you for some reasons
23 having to do with some rulings of the Court.
24 This is a reprinting of a letter that a
25 bunch of people sent on behalf of the plaintiff’s side
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1 in a lawsuit, correct?
2 A. That’s what I understand, yes.
3 Q. And let’s read this opening paragraph that
4 talks about that.
5 ”Manufacturers of asbestos brakes supported
6 by many manufacturing and industry amicus curiae…” –
7 so that’s the defense side had some briefs as well,
8 correct?
9 A. Yes.
10 Q. – ”…requested the Michigan Supreme
11 Court to dismiss testimony of an expert regarding the
12 ability of asbestos dust from brakes to cause
13 mesothelioma as junk science.”
14 So basically this fight was about whether
15 in a case in Michigan about brakes someone from the
16 plaintiff’s side could take the stand; is that your
17 understanding?
18 A. Yes.
19 Q. Okay.
20 ”Scientists are concerned with the sweeping
21 and unequivocal claims that any conclusion that
22 asbestos from brakes causes a signature
23 asbestos-related disease in a particular person must
24 be, quote, junk science.
25 ”The manufacturer’s sweeping pronouncements
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1 are what veer from accepted reliable mainstream
2 scientific methods and conclusions. This article
3 outlines the evidence supporting the conclusion that
4 asbestos from brakes can and does cause mesothelioma
5 and describes the defendant’s attempts to fabricate
6 data about this conclusion.”
7 And this is what they talked about the
8 admissibility of the witness, correct?
9 A. Yes. That’s my understanding.
10 Q. Okay. Just for brakes, correct?
11 A. That’s what I understand. Yes.
12 Q. This article — is this a peer-reviewed
13 article?
14 A. I’m sure it’s not.
15 Q. Okay.
16 A. That’s not a — it’s not a scientific
17 article. It doesn’t contain any new science or new
18 evaluation. Even the title tells you it’s not a
19 scientific article. So that would not be
20 peer-reviewed.
21 Q. One last thing. And I was wrong. There
22 was one more thing I had in my notes. I just didn’t
23 have an article associated with it.
24 You talked about Dr. Suzuki, and we talked
25 about him on direct. You stated that you agreed with
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1 his finding but disagreed with his conclusion when he
2 said that the short fiber got to the pleura and then
3 was the cause of the tumors. Do you recall that?
4 A. Yes.
5 Q. Explain that answer. When you say you
6 agree with his finding and disagree with his
7 conclusion, what did you mean by that?
8 A. So if you look at his paper, what he does
9 is he takes a group of people that had asbestos-related
10 disease and he looks at their pleura, and he finds lots
11 of those little, short fibers. The only place he looks
12 is the pleura. And he doesn’t look at any control
13 cases.
14 Q. What’s a control case?
15 A. Well, he doesn’t look at any people that
16 didn’t have asbestos exposure or didn’t have the
17 disease. So he just looks at a group of cases. And he
18 finds little, short fibers.
19 Now, on that I agree with him. I would
20 expect if you have asbestos exposure and you look in
21 the pleura, you’ll find lots of little, short fibrils.
22 But that finding does not prove cause and effect. He’s
23 just proving — all he’s doing is showing they’re
24 there. That’s something I think is important and I
25 agree with. They are there.
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1 Now, if he looked at other places, he would
2 have also found them because people who have looked in
3 other organs have also found lots of short fibrils
4 after exposure.
5 The question is, do the fibrils cause the
6 disease? And he didn’t have any things to compare.
7 So, in fact, when he goes from seeing the fibrils to
8 saying they cause the disease, he’s made a leap of
9 judgment that has no basis in his paper, is all I’m
10 saying.
11 I’m trying to say to see if a disease is
12 caused by it, you have to have a group that are exposed
13 and a group that are not exposed to the same
14 environment, and then you have to see if the ones that
15 are exposed have more disease than the other — than
16 the other one did.
17 He didn’t do that. So what you’re really
18 asking is, does the presence of those small fibrils
19 create risk for disease? And he just said that they’re
20 there. But to answer the question whether they cause
21 the disease, you have to go back and do the
22 epidemiology studies I was talking about.
23 And so, therefore, I would disagree with
24 his conclusion that there is a cause-and-effect
25 relationship. In fact, when you do look at the data,
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1 the cause-and-effect relationship is with the amphibole
2 exposure and the long fibers but not with the short
3 fibrils.
4 Q. And that was my last question. It’s your
5 opinion that it’s the amphibole fibers and the long
6 fibers that cause mesothelioma and not the short ones?
7 A. That’s correct.
8 MR. BURNS: No more questions, Your Honor.
9 THE COURT: Thank you, Mr. Burns.
10 Thank you for coming, Doctor. You’re free
11 to go.
12
13 (The witness was excused.)
14
15 MR. BURNS: Your Honor, at this time, and
16 subject to reviewing our notes tonight to make sure
17 we’ve entered every exhibit we wanted to enter, John
18 Crane at this time would rest.
19 THE COURT: Okay. No rebuttal?
20 MR. HATTEN: We don’t have any rebuttal.
21 It may be that some of the things we have today I may
22 want to make an exhibit in the morning.
23 THE COURT: That’s fine.
24 MR. HATTEN: But I’ll take a look at that.
25 THE COURT: I told you we’ll do that in the
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1 morning.
2 Now, based on the length of the arguments,
3 is starting at ten okay?
4 MR. HATTEN: Yes, sir.
5 MR. BURNS: My closing argument is going to
6 be on the order of my opening argument, so 45 minutes
7 or so.
8 THE COURT: I didn’t know if you wanted to
9 start at nine and finish around noon-ish and let them
10 go to lunch or, you know, ten. Do you think you’ll get
11 them done in three hours?
12 MR. BURNS: I would hope so. I’ll be about
13 45 minutes.
14 MR. HATTEN: I would not want to break it
15 up, so I would either go ten to one or go nine to
16 twelve, whichever you prefer.
17 THE COURT: What time do you want to come?
18 A JUROR: Nine to twelve.
19 THE COURT: All right. We’ll start at nine
20 tomorrow morning then. That means the jury will be
21 back at 8:45. Give your notebooks to the bailiff.
22 MR. BURNS: Just so we’re clear, and out of
23 an abundance of caution, we don’t want everybody to go
24 home at noon. We’re just talking about the length of
25 the arguments.
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1 THE COURT: Oh, no. No. They’re not going
2 home.
3 MR. BURNS: I didn’t know if there was any
4 confusion.
5 THE COURT: No. No. We’re basically
6 talking about doing it smoothly so we kind of get to
7 lunch. That’s all. Oh, no. You’re not leaving.
8 As a matter of fact, based on the arrival
9 times around here, I’m thinking about keeping you all
10 overnight. Okay? So we need to kind of be here on
11 time. Did you know I could do that?
12 THE JURY MEMBERS: Yes.
13 THE COURT: Might make the paper.
14 Anyway, 8:45 tomorrow morning you need to
15 be here, please. The bailiff has your cell phone
16 numbers. He’ll be calling at 8:45, trust me. Leave
17 the notebooks with him. Again, no research. No
18 discussing the case. It’s not over until it’s over,
19 and it’s not over yet. It’s also not yours. See you
20 tomorrow morning.
21
22 (The jury exited the courtroom.)
23
24 THE COURT: Anything else?
25 MR. BURNS: I wouldn’t think so. Both
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1 sides will check tonight with the exhibits, make sure
2 we have everything in. If not, we’ll move it in in the
3 morning. We’ll make sure everything that’s supposed to
4 be up at the table will be at the table, and, if not,
5 we’ll proceed to the closing arguments.
6 THE COURT: All right. I’ll leave the
7 scene of the blunt-force trauma now. May be some blood
8 splatter. I’m not sure. He’s got some stuff up here.
9 I notice some exhibits you were using.
10 MR. BURNS: I think I marked them as –
11 THE COURT: They’re defense exhibits.
12 MR. BURNS: I didn’t enter them into
13 evidence. I marked them for identification.
14 THE COURT: I didn’t see the report.
15 MR. HATTEN: They’re his report. By
16 agreement –
17 MR. BURNS: They’re not going in. I
18 premarked them, but they’re not going into evidence.
19 THE COURT: I kind of wondered about that.
20 I don’t know what all of this is.
21 MR. BURNS: His CV goes in.
22 THE COURT: Figure out what it is, and I’ll
23 see you in the morning.
24 MR. HATTEN: Thank you, Judge.
25
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1 (Whereupon, trial proceedings were
2 adjourned at 3:10 p.m., to be reconvened
3 April 17th, 2013, at 9:00 a.m.)
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1 CERTIFICATE OF COURT REPORTER
2
3 I, Penny C. Wile, RPR, RMR, CRR, Shorthand
4 Reporter, certify that I recorded verbatim by Stenotype
5 the proceedings in captioned cause before the Honorable
6 Timothy S. Fisher, Chief Judge, and a jury, in Newport
7 News, Virginia, on April 16, 2013.
8 I further certify that to the best of my
9 knowledge and belief the foregoing transcript
10 constitutes a full, accurate and complete transcript of
11 said proceedings.
12 Given under my hand this 16th day of April,
13 2013, at Virginia Beach, Virginia.
14
15
16
17
18 ___________________________
