New Jersey Mesothelioma Lawyer Cross Examines Asbestos Defense Expert in Deposition

1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION:MIDDLESEX COUNTY
2 DOCKET NO. MID-L-8044-06

3
RONALD DeMAYO and
4 FLORENCE DeMAYO,

5 Plaintiffs,
Deposition of:
6 v. SHELDON H.
RABINOVITZ, Ph.D.
7 AMCHEM PRODUCTS, INC.;
3M COMPANY;
8 CERTAINTEED CORPORATION;
GEORGIA PACIFIC CORPORATION;
9 RAPID AMERICAN CORPORATION,
individually and a successor to the
10 Celotex Corporation;
UNION CARBIDE CORPORATION,
11 JOHN DOE 1 through
JOHN DOE 75 (fictitious);
12 CIBA GEIGY CORPORATION;
HONEYWELL INTERNATIONAL, INC.,
13 individually and as successor
to Allied Signal, Inc.,
14 Allied Chemical Corp., and
Aftermarket Brake and Friction
15 Materials Division of Bendix
Corporation;
16 NOVARTIS CORPORATION,
individually and as successor
17 to Ciba Geigy Corp. and Sandoz;
PFIZER, INC.,
18 individually and as successor
to Warner Lambert Company;
19 KENTILE FLOOR, INC.,
individually and as successor
20 to Kentile, Inc.;

21 (Caption continued on Page 2)

22
BRODY DEPOSITION SERVICES
23 CERTIFIED SHORTHAND REPORTERS AND VIDEOGRAPHERS
90 Woodbridge Center Drive, Suite 220
24 Woodbridge, New Jersey 07095
(732) 283-5737
25

1 FRANK A. McBRIDE COMPANY;
NOVARTIS PHARMACEUTICALS CORP.;
2 ROBERT A. KEASBEY CO.;
SIMON PROPERTY GROUP, INC.;
3 THE TAUBMAN COMPANY;
WARNER-LAMBERT COMPANY, LLC;
4
Defendants.
5

6
TRANSCRIPT of testimony as taken by and
7
before DENISE M. PITCHFORD, a Certified Court
8
Reporter and Notary Public of the State of New
9
Jersey, at the offices of PEPPER HAMILTON, LLP,
10
Suite 400, Carnegie Center, Princeton, New Jersey,
11
on Monday, April 14, 2008, commencing at approximately
12
1:03 in the afternoon.
13

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

2 COHEN, PLACITELLA & ROTH, P.C.
BY: CHRISTOPHER M. PLACITELLA, ESQ.
3 127 Maple Avenue
Red Bank, NJ 07701
4 (732) 747-9003
cplacitella@cprlaw.com
5 Attorneys for Plaintiffs

6 PEPPER HAMILTON LLP
BY: ANTHONY J. DESTRIBATS, ESQ.
7 JEFFREY A. CARR, ESQ.
301 Carnegie Center, Suite 400
8 Princeton, NJ 08543-5276
(609) 452-0808
9 destribatsa@pepperlaw.com
Attorneys for Defendant, Honeywell
10 International, Inc.

11 MORGAN MELHUISH ABRUTYN
BY: ROBERT J. MACHI, ESQ.
12 651 West Mount Pleasant Avenue
Suite 200
13 Livingston, NJ 07039-1673
(973) 863-7622
14 rmachi@morganlawfirm.com
Attorneys for Defendant, Novartis
15 Corporation

16 GREENBERG TRAURIG, LLP
BY: MARISSA BANEZ, ESQ.
17 Met Life Building
200 Park Avenue
18 New York, NY 10166
(212) 801-3173
19 banezm@gtlaw.com
Attorneys for Defendant, Robert A. Keasbey
20 Company

1 A P P E A R A N C E S
(VIA TELECONFERENCE:)
2
HARRIS BEACH PLLC
3 BY: SUZANNE BALSAM, ESQ.
100 Wall Street, 23rd Floor
4 New York, NY 10005
(212) 912-3528
5 sbalsam@harrisbeach.com
Attorneys for Defendant, Kentile Floor, Inc.
6
STEIN, MCGUIRE, PANTAGES & GIGL, LLP
7 BY: EDWARD J. SEAVER, ESQ.
354 Eisenhower Parkway
8 Livingston, NJ 07039-0460
(973) 992-1100
9 eseaver@steinlegal.com
Attorneys for Defendant, Simon Property
10 Group

11 MARKS, ONEILL, OBRIEN & COURTNEY, P.C.
BY: SEBASTIAN A. GOLDSTEIN, ESQ.
12 Cooper River West-Suite 300
6981 North Park Drive
13 Pennsauken, NJ 08109
(856) 663-4439
14 sgoldstein@mooclaw.com
Attorneys for Defendant, Simon Property
15 Group

16 BUDD LARNER, P.C.
BY: TERENCE W. CAMP, ESQ.
17 150 John F. Kennedy Parkway
Short Hills, NJ 07078-2703
18 (973) 315-4432
tcamp@budd-larner.com
19 Attorneys for Defendant, The Taubman Company

20 SPRIGGS & HOLLINGSWORTH
BY: PATRICK R. HARKINS, ESQ.
21 1350 I Street Northwest
Washington, D.C. 20005
22 (202) 898-5896
pharkins@spriggs.com
23 Attorneys for Defendant, Novartis
Corporation
24

1 I N D E X

2 WITNESS PAGE

3 SHELDON H. RABINOVITZ, Ph.D.

4 By Mr. Placitella 8

5
E X H I B I T S
6
NUMBER DESCRIPTION PAGE
7
Rabinovitz-1 Report, 1/25/08, 18 pgs. 8
8
Rabinovitz-2 File of Dr. Sheldon H. 139
9 Rabinovitz, Ph.D.
Including:
10 Letter, 12/19/07;

10 Transcript of Ronald DeMayo, 9/6/07, Volume IV

11
Transcript of Joel B. Charm, 12/21/07;
12
Transcript of Ronald DeMayo, 3/10/08;
13
Transcript of Ronald DeMayo, 11/2/06;
14
Transcript of Ronald DeMayo, 3/5/08, Volume V;
15
Hall-Kimbrell Environmental Services, Inc.
16 Report, Bates No. HI000469-538;

17 Form A Interrogatories to be Answered by Plf;

18 Transcript of Randal Dias, 11/14/07;

19 Transcript of Sheldon H. Rabinovitz, Ph.D.,
9/23/04;
20
Transcript of Sheldon H. Rabinovitz, Ph.D.,
21 5/10/06;

22 Report of Barry I. Castleman;

23 Report of Jerry Lauderdale, P.E.;

24 Study of Economic Loss, 4/2007;

25 Letter, 2/2/07;

1 Report on Adequacy of Warnings, Instructions
and Safety Information;
2
Letter, 1/7/08;
3
Affirmation of Jerrold L. Abraham, M.D.;
4
Affirmation of Steven Markowitz, M.D.;
5
DeMayo, Ronald and Florence v. Allied
6 Chemical Notes (6033);

7 Plaintiffs Answers to Standard Middlesex
Interrogatories Part II;
8
Hall-Kimbrell Environmental Services, Inc.,
9 Bates No. HI000016-088;

10 Hall-Kimbrell Environmental Services, Inc.,
Bates No. HI000089-190;
11
Hall-Kimbrell Environmental Services, Inc.,
12 Bates No. HI000191-220;

13 Hall-Kimbrell Environmental Services, Inc.,
Bates No. HI000221-241;
14
Hall-Kimbrell Environmental Services, Inc.,
15 Bates No. HI000242-257;

16 Hall-Kimbrell Environmental Services, Inc.,
Bates No. HI000258-313;
17
Air Monitoring Summary Report,
18 Bates No. HI000369-411;

19 AET Asbestos Survey Report,
Bates No. HI000433-466;
20
Certification of Ronald DeMayo;
21
Transcript of Ronald DeMayo, 11/17/06,
22 Volume II;

23 Transcript of Ronald DeMayo, 11/17/06,
Videotaped
24

1 REQUEST FOR PRODUCTION:

2 PAGE LINE

3 131 9
131 17
4

1 SHELDON H. RABINOVITZ, Ph.D.,

2 C.I.H., after having been first duly sworn, was

3 examined and testified as follows:

4 EXAMINATION

5 BY MR. PLACITELLA:

6 Q. Good afternoon, Dr. Rabinovitz, how

7 are you?

8 A. Okay.

9 Q. Im here to take your deposition.

10 My name is Chris Placitella. I represent

11 Mr. DeMayo, all right?

12 A. Yes.

13 Q. Do you have a copy of your report

14 that you issued, with you, in this case?

15 A. Yes.

16 Q. Okay. Why dont we mark your

17 report?

18 A. Thats not it.

19 (Exhibit Rabinovitz-1 marked for

20 identification.)

21 BY MR. PLACITELLA:

22 Q. Doctor, could you go to Page 14 of

23 your report, please? Do you have it in front of

24 you?

25 A. Yes.

1 Q. Do you see the second full

2 paragraph, it starts, As described in the

3 aforementioned act?

4 A. Yes.

5 Q. It says, As described in the

6 aforementioned act, it was the employers

7 responsibility to provide a safe work environment

8 for employees.

9 Do you see that?

10 A. I do.

11 Q. Okay. Now, do you see at the bottom

12 of the page — and when youre making that

13 reference in the second paragraph, youre

14 referring to OSHA, correct?

15 A. Yes.

16 Q. Okay. In the bottom of the

17 paragraph it says, Even prior to the formation of

18 OSHA, bottom of the page, companies were

19 required to provide safe and healthful working

20 conditions which are also consistent with good

21 industrial hygiene.

22 Do you see that?

23 A. Wait a second. Yes.

24 Q. All right. How long prior to OSHA

25 were companies required to provide safe and

1 healthful working conditions which are consistent

2 with good industrial hygiene?

3 A. Well, prior to OSHA there were

4 states that had requirements for companies to

5 comply with certain health standards. There was

6 also the Walsh-Healey Act which preceded OSHA. I

7 dont know if you could — I mean I think it might

8 be speculation to suggest whether workers

9 compensation laws put the responsibility of a

10 company to protect their workers or provide their

11 workers with a safe and healthful environment, but

12 I think you could say that.

13 Q. Are there general principles of

14 industrial hygiene that also recognize the

15 principle of providing a safe place — a safe work

16 environment for an employee?

17 A. Yes.

18 Q. Okay. And when were the principles

19 of industrial hygiene to provide a safe and

20 healthful workplace for an employee first

21 recognized?

22 A. I dont know that Ive ever been

23 asked to place a date of when that first started.

24 Q. What decade?

25 MR. DESTRIBATS: Im just objecting

1 to whom it was recognized by.

2 MR. PLACITELLA: Uh-huh.

3 THE WITNESS: I mean because the

4 field, I mean it wasnt until after World War II

5 and the American Conference of Governmental

6 Industrial Hygienists was formed, you had the

7 Public Health Service involved and, you know, so

8 as early as the beginning of the last century

9 certainly you had government entities looking at

10 health hazards. And the employer is the only one

11 who has the ability to control the workplace, so

12 its kind of obvious that they would have to bear

13 the responsibility.

14 BY MR. PLACITELLA:

15 Q. So is it your testimony that

16 beginning in the early 1900s, it was recognized

17 that there was a responsibility by the employer to

18 provide a healthful work — safe and healthful

19 workplace?

20 A. Its my opinion that there would be

21 information out there to make that statement true.

22 Q. Okay. And you have a number of

23 items above your statement. One says, on Page 14,

24 Control what materials are purchased to be used

25 in the facility, including both production and

1 non-production of materials.

2 Do you see that?

3 A. Yes.

4 Q. Okay. When — is that a

5 generally-recognized principle of industrial

6 hygiene?

7 A. Well, a generally-recognized

8 principle of industrial hygiene is that certain

9 materials, depending on how theyre used, may have

10 a potential for causing excessive or exposures to

11 employees.

12 Q. So when was it first recognized as a

13 principle of industrial hygiene that you had to

14 control what materials are purchased or used in a

15 facility, including both the production and

16 non-production of materials?

17 A. Well, again –

18 MR. DESTRIBATS: Im sorry. Can you

19 just repeat that question back?

20 (The record is read back as

21 requested.)

22 MR. DESTRIBATS: Objection to form.

23 You can answer.

24 THE WITNESS: The main principle is

25 that exposure to certain materials cause — can

1 cause excessive exposures resulting in problems or

2 health problems. That was known since ancient

3 times. The Romans restricted who went into work

4 in mercury mines to prevent certain people from

5 getting sick. So the principle of knowing certain

6 materials could cause adverse effects has been

7 known since antiquity, and its just an extension

8 of that principle that obviously the materials

9 that are used, whether purchased or mined or

10 whatever, have to be evaluated to determine if

11 there could be risk.

12 (Mr. Machi enters the room.)

13 BY MR. PLACITELLA:

14 Q. And an investigation should be done

15 as a principle of industrial hygiene as to whether

16 the materials are being used would present a risk

17 to the worker?

18 A. A principle of industrial hygiene

19 and, in fact, part of the definition is

20 recognition of a potential for a health hazard.

21 And so, if that includes a study or whatever you

22 have to do, you must be able to recognize if a

23 health hazard could exist.

24 Q. And that includes investigating as

25 to what the constituents are and what materials

1 that would be used in a workplace?

2 A. That is what an industrial hygienist

3 would do.

4 Q. And that would go back to the early

5 1900s, that principle, sir?

6 A. The principle of investigating the

7 materials and identifying health hazards would

8 even go back further than that.

9 Q. Okay. What about — you write,

10 Control the ventilation conditions in the

11 building and selection of the building itself.

12 Do you see that?

13 A. Yes.

14 Q. How far back does that principle go

15 in terms of industrial hygiene?

16 A. Well, again, ventilation, air

17 movement, dilution, that has been known for a long

18 time. And the principles of controlling exposure

19 for ventilation goes back at least to the early

20 last century. Probably well before that.

21 Q. So even before the 20th Century, it

22 was recognized that you needed to control

23 ventilation conditions in buildings in the

24 selection of the building itself?

25 A. Well, it was certainly known that

1 ventilation is going to affect exposure.

2 Q. Okay. The next one you have is,

3 Provide and install engineering equipment to

4 protect workers.

5 Do you see that?

6 A. Yes.

7 Q. How long has it been known as a

8 principle of industrial hygiene that you need to

9 provide and install engineering equipment to

10 protect workers?

11 A. Well, again, its not that you

12 always need to do that to protect workers. There

13 are certain situations where that may be required,

14 and that principle would go back as far as knowing

15 that you need ventilation. And so to the extent

16 that there was equipment available to provide

17 insulation, that would need to be used in certain

18 situations. So, again, youre talking going back

19 a hundred years or more.

20 Q. Okay. What about, Provide for

21 training of employees in hazard recognition and

22 safe work practices, how long does that

23 principle — how far back does that principle go

24 in terms of industrial hygiene?

25 A. In terms of industrial hygiene,

1 actually, that doesnt go back nearly as far. If

2 you look at the original, some of the older

3 industrial hygiene books, they talk about

4 protecting the employee, but not necessarily

5 making him aware of the adverse effects associated

6 with excessive exposure. So, in earlier times the

7 emphasis was on protecting the worker and just

8 making sure they did their work in a way that did

9 not harm them. Its kind of a later concept, at

10 least in terms of the OSHA Hazard Communication

11 Standard and things like that, to provide more

12 information regarding the hazards of the

13 workplace.

14 Q. Are you familiar with the writings

15 of Dr. Merewether from the 1930s?

16 A. Yes.

17 Q. Okay. And he was who? He was the

18 chief inspector of the factories?

19 A. In England.

20 Q. In England?

21 A. Yes.

22 Q. Was that information available in

23 the United States in the early 1930s?

24 A. I dont know how fast the

25 communication to the United States occurred, and

1 Im sure eventually some of that was available.

2 Q. Well, would his works be known at

3 least by the 1940s in the United States?

4 MR. DESTRIBATS: Objection.

5 THE WITNESS: I dont know, but it

6 wouldnt surprise me.

7 BY MR. PLACITELLA:

8 Q. Okay. And Dr. Merewether actually

9 in his article — articles discuss these concepts

10 that weve gone through already, correct,

11 ventilation, investigation of hazardous materials;

12 he put them right in his articles, right?

13 A. Yes.

14 Q. He also said that the workers had to

15 be apprised of, quote, a sane appreciation of the

16 risks. Do you recall that?

17 A. You know, I dont remember that

18 specific statement.

19 Q. If he said that, would that mean

20 warn the workers?

21 A. Thats what it sounds like.

22 Q. Okay. And would you disagree with

23 that as a principle of industrial hygiene?

24 A. Certainly not today.

25 Q. So if Dr. Merewether said that in

1 his articles in the 1930s, you would agree with

2 me that as a principle of industrial hygiene, it

3 was recognized that workers should be provided

4 information on the hazards of the materials that

5 they work with, at least by the 1930s?

6 MR. DESTRIBATS: Objection.

7 THE WITNESS: Again, there are

8 industrial hygiene manuals much later than that

9 that suggest that thats not the best approach.

10 BY MR. PLACITELLA:

11 Q. When is the earliest information

12 that youre aware of that suggests that the

13 workers should be told about the risks of the

14 products that theyre asked to work with?

15 MR. DESTRIBATS: Objection to form.

16 THE WITNESS: Wait, when did I see

17 something?

18 BY MR. PLACITELLA:

19 Q. What information are you aware of,

20 the earliest information that youre aware of in

21 the published literature indicating that the

22 workers had a right to know the hazardous — what

23 was in the materials they were working with?

24 MR. DESTRIBATS: Objection to form.

25 You can answer, if you can understand.

1 THE WITNESS: Yeah. I mean

2 certainly the OSHA Hazard Communication Standard.

3 I mean there was other — I cant put my finger on

4 it, I have seen references earlier than that

5 talking about employees right to know, but again,

6 some of the thinking in the 40s, 50s, maybe even

7 the 60s suggested that it was more important just

8 to protect the worker than to talk about adverse

9 effects.

10 BY MR. PLACITELLA:

11 Q. Can you cite to me the literature

12 that youre referring to that indicates that the

13 worker — it wasnt important to tell the worker

14 if he was around a dangerous substance –

15 MR. DESTRIBATS: Im just objecting.

16 BY MR. PLACITELLA:

17 Q. — in the 50s and the 60s?

18 MR. DESTRIBATS: Im objecting to

19 the word worker at this point. I think youre

20 referring to the employees, and I just want to

21 make that distinction there.

22 THE WITNESS: Well, the employees,

23 and its not necessarily not to make them aware of

24 what theyre working with. It was information as

25 Pattys Industrial Hygiene and Toxicology, the

1 first edition, that just talked about that the

2 employee might unnecessarily agitate them or make

3 them uncomfortable or that they wouldnt be

4 completely able to understand the situation, and

5 it was better not to tell them about the adverse

6 effects of excessive exposure, but it was the

7 responsibility of the industrial hygienist to

8 ensure they had a healthful work environment.

9 BY MR. PLACITELLA:

10 Q. Well, when was it first recognized

11 in industrial hygiene that if you couldnt

12 eliminate the hazards, you needed to warn the

13 worker of the hazards posed by the materials he

14 was working with?

15 A. Well, if you cant eliminate the

16 hazard, you dont have the operation. You dont

17 warn the worker, you stop the operation.

18 Q. Well, if you cant eliminate the

19 hazard through mechanical means, are there still

20 things that you can do in order to protect the

21 worker?

22 A. Yes.

23 Q. Such as respirators?

24 A. That would be one.

25 Q. Okay. So when was it first

1 recognized that if you couldnt eliminate an

2 industrial hazard through the use of mechanical

3 ventilation, that you should supply the worker

4 with a respirator?

5 A. Well, respirators have been used for

6 many years. I dont — I mean the beginning of

7 the last century you started having respirators

8 being used.

9 Q. So the beginning of the 1900s it was

10 recognized as a principle of industrial hygiene

11 that if you couldnt eliminate an industrial

12 hazard by mechanical ventilation, an employee

13 should wear a respirator?

14 A. Well, mechanical ventilation is not

15 the only means to eliminate a hazard. There are

16 other engineering controls.

17 Q. Well, Ill amend my question by

18 asking, beginning in the 19th Century, if you

19 couldnt eliminate a hazard by mechanical

20 controls, as you put it, was it recognized that

21 you should provide that employee with a

22 respirator?

23 MR. DESTRIBATS: The beginning of

24 the 19th Century?

25 MR. PLACITELLA: Uh-huh.

1 THE WITNESS: Or the 20th Century?

2 BY MR. PLACITELLA:

3 Q. Okay, lets do the 20th Century.

4 Are you comfortable with that?

5 A. I dont know how good respirators

6 were at the time. I dont know when they started

7 being fairly effective. But there would come a

8 time when if you couldnt eliminate the hazard

9 through engineering controls or administrative

10 controls, another option was respiratory

11 production.

12 Q. And when was that first recognized

13 as an option?

14 A. I dont know that you can put a

15 specific date on it.

16 Q. How about decade?

17 A. Im just saying, there was a time in

18 the last century when respirators were fairly

19 effective and could be used to adequately protect

20 workers, with the caveat that using respirators to

21 protect employees is the least preferred method.

22 Its often unable to verify the protection

23 afforded, and so in the industrial hygiene

24 hierarchy of protecting employees, thats kind of

25 at the bottom of a method of protecting employees.

1 Q. Would you agree with me that at

2 least by the 1930s it was recognized as a

3 principle of industrial hygiene that if you could

4 not eliminate an industrial hazard by engineering

5 controls, that an employee should be given a

6 respirator?

7 A. If an adequate respirator was

8 available that was known to be effective, also

9 with the caveat that using a respirator eight

10 hours a day, very difficult to get them to

11 conscientiously use it, and so you would have to

12 be very careful about how it was implemented to

13 actually offer adequate protection.

14 Q. Okay. Do you remember my question?

15 A. By the 1930s, was respirators an

16 option to protect employees?

17 Q. And whats the answer?

18 A. The answer is, it was, I believe it

19 probably was an option in certain situations.

20 Q. And how would the employee know to

21 put a respirator on unless the reasons were

22 explained to the employee?

23 A. In terms of — in today, for a

24 respirator program, making them aware of the

25 hazard is a critical component. In the past, I

1 would think it would be a good idea to tell the

2 employee that, but its more important that the

3 employer make sure that the respirator is used

4 conscientiously. I would think that might be more

5 important than just warning the employee, because

6 the employee may not take the warning seriously.

7 Q. So you agree with me that at least

8 by the 1930s, it was a good idea as a principle of

9 industrial hygiene that a worker have explained to

10 him or her the reason theyre being given a

11 respirator, true?

12 MR. DESTRIBATS: Objection.

13 THE WITNESS: Because of the general

14 discomfort associated with using a respirator, I

15 would think that the employee should be told why

16 he is — has to use the respirator.

17 BY MR. PLACITELLA:

18 Q. And that would have been by the

19 1930s?

20 A. I cant put an exact time period on

21 when they were starting to be used routinely for

22 certain situations, but it would not surprise me.

23 That would be around the time period.

24 Q. Can we agree on the 1940s?

25 A. Im sure respirators were being used

1 then.

2 Q. And in order to use them

3 effectively, according to you, the employee would

4 have to be told the reason that they were being

5 provided the respirators so that they would keep

6 them on, correct?

7 MR. DESTRIBATS: Objection.

8 THE WITNESS: I personally feel

9 thats important.

10 BY MR. PLACITELLA:

11 Q. Okay. Now, you have here as a

12 principle, Monitor the environment to determine

13 if employees were exposed to levels of chemicals,

14 which might be harmful.

15 Do you see that?

16 A. Yes.

17 MR. DESTRIBATS: Where?

18 MR. PLACITELLA: In his report.

19 BY MR. PLACITELLA:

20 Q. When was that principle, when was

21 that first recognized as a principle of industrial

22 hygiene in order to protect workers?

23 A. I mean I cant tell you the first –

24 MR. DESTRIBATS: Just objection,

25 again, to that use of workers where it says

1 employees here, but go ahead.

2 THE WITNESS: I cant tell you a

3 specific date when that was known, but ever since

4 you would be able to measure the contaminant, the

5 only way to know if they were being excessively

6 exposed, unless in some situations — there are

7 some situations when it is obvious that there is

8 either very little exposure or harmful exposure,

9 and you may not need to actual monitor to know

10 there is or is not a problem. If thats not the

11 case, then you would need to monitor. It depends

12 on when a method was known.

13 For example, for lead, they didnt

14 even have an adequate method to monitor until the

15 30s, until the Dithizone analysis became

16 available. So its a moving target depending on

17 the substance.

18 BY MR. PLACITELLA:

19 Q. When was it first — when was it –

20 scratch that. When is the first time

21 technologically you would be able to monitor

22 exposure to asbestos-containing dust?

23 A. Well, there were the impinger

24 methods that go back quite a ways. They were not

25 a precise method of measurement, and they often

1 were measuring particles that werent asbestos, as

2 well as the asbestos particles. I dont remember

3 the date that first started, but –

4 Q. Youre talking about the midget

5 impinger?

6 A. Or the Greenberg-Smith Impinger or

7 any other kind of suitable bubbler. I know that

8 they were doing surveys for asbestos by the mid

9 30s.

10 Q. So the ability to monitor a work

11 environment for asbestos-containing dust was

12 recognized by an industrial hygienist by at least

13 the 1930s, is that fair?

14 A. Yes.

15 Q. So your principle here that Monitor

16 the environment to determine if employees are

17 exposed to levels, and if I put in asbestos that

18 might be harmful, that would have been recognized

19 by the 1930s?

20 A. Yes.

21 Q. Now, would you agree with me that

22 every worker is somebodys employee?

23 A. I mean you could have a

24 self-employed worker, I guess.

25 Q. Right. But then he would be

1 employing himself, right?

2 A. I guess so.

3 Q. Okay. Now, in this case, you

4 understand that Mr. DeMayo, the allegations are

5 that Mr. DeMayo was exposed to asbestos at various

6 points in time during his career, correct?

7 A. Yes, I am aware of that claim.

8 Q. Okay. And you reviewed a series of

9 material related to that assertion, correct?

10 A. Yes.

11 Q. Okay. And you set forth that

12 material in your report, correct?

13 A. Yes.

14 Q. Okay. In addition to the material

15 in your report, have you reviewed any other

16 material?

17 MR. DESTRIBATS: To help you, I can

18 identify the last two depositions of Mr. DeMayo

19 held in March, the de bene esse and the

20 discovery –

21 MR. PLACITELLA: Okay, you gave them

22 to him?

23 MR. DESTRIBATS: Yes.

24 BY MR. PLACITELLA:

25 Q. You looked at them?

1 A. Yes.

2 Q. Anything else?

3 MR. DESTRIBATS: I believe just his

4 certification as well that was attached to his

5 summary judgment opposition.

6 MR. PLACITELLA: Okay.

7 BY MR. PLACITELLA:

8 Q. Thats it?

9 A. Yes, thats it.

10 Q. Now, you understand then from

11 reviewing the transcripts, that Mr. DeMayo drilled

12 fire doors?

13 A. Yes.

14 Q. Okay. Do you know what level of –

15 what the exposure levels would be for somebody who

16 drills asbestos-containing fire doors?

17 A. I believe it would be very

18 insignificant.

19 Q. Do you have a number — do you have

20 a basis, a numerical exposure level that you can

21 point to for somebody who drills

22 asbestos-containing fire doors?

23 A. I do not have a specific number.

24 Q. Have you ever reviewed any tests or

25 studies that discuss the level of exposure

1 generated from drilling asbestos-containing fire

2 doors?

3 A. I have never seen a test of that. I

4 have related it to a test I conducted of drilling

5 asbestos brake pads.

6 Q. Well, asbestos-containing brake pads

7 are what percentage of asbestos?

8 A. I believe the ones I did were around

9 30 percent.

10 Q. And whats the percentage of

11 asbestos in an asbestos-containing fire door?

12 A. I dont know the — I mean it

13 probably varies.

14 Q. Well, if its 80 percent, can you

15 compare it to 30 percent?

16 A. Sure.

17 Q. Okay. And do you know the type of

18 asbestos that is used in asbestos-containing fire

19 doors?

20 A. My understanding is its chrysotile.

21 Q. From what is the source?

22 A. One source would be from some

23 specifications Ive seen for fire doors.

24 Q. What specifications?

25 A. Specifications from Weyerhauser.

1 Q. Okay. But they werent the only one

2 that made asbestos-containing fire doors, correct?

3 A. I suppose that may be true.

4 Q. So your testimony is that you

5 believe its chrysotile is based on looking at one

6 specification from one manufacturer?

7 A. Its that, and that chrysotile would

8 serve the purpose and is less expensive than

9 amphibole type asbestos, and there would be no

10 reason to use amphibole asbestos in fire doors.

11 Q. Tell me what the basis for that

12 statement is, sir.

13 A. The basis is that chrysotile would

14 serve the function providing insulation and its

15 cheaper than amphiboles.

16 Q. Do you have any literature that you

17 can point to to support that statement, sir?

18 A. I dont have a specific piece of

19 literature, but I know it comes from Quebec and

20 others. Amphiboles generally come from overseas

21 and its just cheaper.

22 Q. Well, youre aware that the asbestos

23 from Quebec is generally considered as

24 contaminated with tremolite, correct?

25 A. There are some veins in some of the

1 mines that are contaminated with tremolite, but in

2 the processing of the asbestos as it comes out of

3 the mines, the tremolite is usually removed.

4 Q. How do you know that?

5 A. Its based on looking at the

6 analysis of bulk insulation that Ive done many

7 times in taking samples in buildings and never

8 finding tremolite as a contaminant. In addition,

9 I have done testing on asbestos products and have

10 never seen tremolite as a contaminant.

11 Q. Okay. Tell me what your information

12 is to — are you aware of any studies or tests

13 that discusses the level of asbestos fibers

14 generated during the drilling of fire doors?

15 A. I already answered that, I believe,

16 and said I dont have a specific test. Im

17 relating it to other activities and then

18 integrating the information to draw conclusions

19 regarding potential exposure to asbestos from fire

20 doors.

21 Q. Was that my question?

22 MR. PLACITELLA: Could you read my

23 question back, please?

24 (The record is read back as

25 requested.)

1 THE WITNESS: I thought I answered

2 you.

3 BY MR. PLACITELLA:

4 Q. Are you aware of any specific

5 studies or tests that addressed the issue about

6 what the level of asbestos fiber is generated from

7 the drilling of fire doors?

8 A. And I said, I didnt see any

9 specific literature on that, but I told you how I

10 am able to make an evaluation.

11 Q. That wasnt my question. What about

12 the planing of asbestos-containing fire doors, are

13 you aware of any studies or tests that talk about

14 the level of fiber generated during the planing of

15 asbestos-containing fire doors?

16 A. My understanding is that you plane

17 on the metal or the wood, not on the insulation.

18 Q. Youve done that, sir?

19 A. Pardon?

20 Q. Youve done it?

21 A. Ive planed a door, a wood door.

22 Q. Have you planed an

23 asbestos-containing fire door?

24 A. No, I have not, but –

25 Q. Have you ever seen it done?

1 MR. DESTRIBATS: Can he finish his

2 answer?

3 THE WITNESS: You would plane the

4 wood on the bottom. Youre not going inside of

5 it.

6 BY MR. PLACITELLA:

7 Q. Have you done it, or have you ever

8 seen it done?

9 A. No.

10 Q. Cutting of the asbestos ceiling

11 tiles, can you point to me specific studies

12 indicating the level of asbestos fibers generated

13 during the cutting of asbestos-containing ceiling

14 tiles?

15 A. No.

16 Q. Okay. Do you know what an

17 asbestos-containing countertop is?

18 A. A countertop that has asbestos

19 embedded in the matrix.

20 Q. All right. Are you aware of any

21 studies indicating the level of asbestos fibers

22 generated during the sanding of

23 asbestos-containing countertops?

24 A. Not specifically of countertops, but

25 of similar type material.

1 Q. Whats that material?

2 A. Bakelite.

3 Q. Okay. Youre saying the bakelite is

4 a similar material to asbestos-containing

5 countertops?

6 A. Im saying similar, yes.

7 Q. How is it similar?

8 A. Theyre both hard plastic materials.

9 Q. Did you ever hear of a term called

10 soapstone?

11 A. Yes, I actually first heard it in

12 this case.

13 Q. Is that the same thing as bakelite,

14 similar to bakelite?

15 A. Im saying there are similarities.

16 Im not saying its the same.

17 Q. Okay. So the first time you ever

18 heard about the term soapstone was in this case?

19 A. Yes.

20 Q. Are you aware of any studies

21 indicating the level of asbestos-containing — the

22 level of asbestos fibers generated during the

23 sanding of soapstone?

24 A. Not specifically sanding of

25 soapstone, no.

1 Q. Your understanding is, from the

2 review of this case, that the soapstone contained

3 asbestos, correct?

4 MR. MACHI: Objection.

5 MR. DESTRIBATS: Objection.

6 THE WITNESS: I believe that theres

7 an allegation that does.

8 BY MR. PLACITELLA:

9 Q. Well, did you do anything to

10 investigate or verify that allegation?

11 A. No.

12 MR. MACHI: Objection.

13 BY MR. PLACITELLA:

14 Q. Excuse me?

15 A. No.

16 Q. Do you have any information that

17 would indicate that the soapstone used at Allied

18 did not contain asbestos?

19 A. I dont know one way or the — lets

20 see.

21 Q. Are you aware of any studies

22 concerning the drilling?

23 MR. DESTRIBATS: Objection. I think

24 hes still answering the question. Can you go

25 back to that previous question, please?

1 THE WITNESS: No, I dont know –

2 MR. DESTRIBATS: One second, one

3 second, Doctor. Go back to that previous question

4 before his last question.

5 (The record is read back as

6 requested.)

7 THE WITNESS: Or the other. I was

8 not aware that Mr. DeMayo worked on those types of

9 materials at Allied.

10 BY MR. PLACITELLA:

11 Q. Okay. The drilling of

12 asbestos-containing countertops, are you aware of

13 any studies indicating the level of asbestos fiber

14 generated during the drilling of

15 asbestos-containing countertops?

16 MR. MACHI: Objection.

17 THE WITNESS: Not specifically, but

18 Im aware of studies on bakelite.

19 BY MR. PLACITELLA:

20 Q. How about cutting of

21 asbestos-containing countertops, are you aware of

22 any studies relating to — scratch that.

23 Are you aware of any studies

24 concerning the fiber, asbestos fiber generated

25 during the cutting of asbestos-containing

1 countertops?

2 MR. MACHI: Objection.

3 THE WITNESS: No, only anything

4 that — if it was a similar material, if it

5 contained asbestos.

6 BY MR. PLACITELLA:

7 Q. By the way, have you ever put a

8 piece of asbestos-containing countertop next to a

9 piece of bakelite for comparison?

10 A. No.

11 Q. Then how do you know that theyre

12 similar?

13 A. Because theyre both hard plastic

14 materials.

15 Q. Are you sure theyre plastic?

16 A. My understanding was that the

17 soapstone was an organic binder.

18 Q. Where did you get that from?

19 A. That was my understanding. I dont

20 remember where I got it.

21 Q. Well, it happened in this case you

22 never heard of it, so where did you get it?

23 A. That it would just be a hard

24 material. I made the assumption.

25 Q. Okay. Now, can you go to Page 4 of

1 your report. By the way, do you believe, based

2 upon your review of all the materials in this

3 case, that Mr. DeMayo was exposed to asbestos

4 during the course of his work?

5 A. All of his work?

6 Q. Uh-huh.

7 A. Yes.

8 Q. How do you believe he was exposed to

9 asbestos?

10 A. He, at times, talks about handling

11 some — and Im making the assumption that some of

12 those materials actually contained asbestos. If

13 they didnt, then I would have to — okay, let me

14 start.

15 Im making an assumption that some

16 of the materials he handled were, in fact,

17 asbestos-containing materials, although I dont

18 necessarily know that for a fact. But assuming

19 they were, then I believe he was exposed to

20 asbestos.

21 Q. What materials?

22 A. He talked of a hard board that he

23 worked on, in a church, that he was cutting. And

24 he also talked about using some joint compounds

25 himself. And assuming that the joint compound

1 contained asbestos, he would have been exposed to

2 some.

3 Q. Okay. What else?

4 A. I think he also talked about cutting

5 some of the countertops, laboratory countertops.

6 And assuming that contained asbestos, he would

7 have been exposed to some.

8 Q. Okay, what else?

9 A. And if he cut asbestos-containing

10 ceiling tile, he would have been exposed to some

11 asbestos.

12 Q. Anything else?

13 A. Those are the only things I can

14 think of.

15 Q. Do you have an opinion as to whether

16 his cumulative exposure increased his risk of

17 developing mesothelioma?

18 A. You mean whether his cumulative

19 exposure to all of his asbestos exposures

20 increased his risk of getting mesothelioma?

21 Q. Yes.

22 A. Well, the problem is, I dont know

23 if the materials he was talking about contained

24 asbestos. I also dont know how much he was

25 exposed to from some of those operations. And so,

1 Im not really in a position to be able to say he

2 was, in fact, exposed to levels of asbestos. And

3 I dont know the type of asbestos in some of those

4 applications. So with all of those unknowns, Im

5 not in a position to say that he was exposed to

6 levels of asbestos or a total dose of asbestos

7 that increased his risk of getting mesothelioma.

8 Q. Well, assume all the products that

9 you went through and you told me about contained

10 asbestos, based upon your review of the materials,

11 would his cumulative dose to those products have

12 increased his risk for mesothelioma?

13 MR. DESTRIBATS: Are you saying

14 after — if all those products throughout his

15 career always contained asbestos?

16 MR. PLACITELLA: No. Im going

17 based on what his statement to me was. I asked

18 him how he was exposed.

19 BY MR. PLACITELLA:

20 Q. For the products that you talked

21 about, assuming that those products were asbestos,

22 do you have an opinion as to whether his

23 cumulative dose from all those products would have

24 increased his risk for mesothelioma?

25 MR. MACHI: Objection to the form of

1 the question.

2 BY MR. PLACITELLA:

3 Q. You can answer it.

4 A. What type of asbestos?

5 Q. Its your statement, sir.

6 A. I said, I dont know what types of

7 asbestos it was.

8 Q. So youre not going to offer any

9 opinion in this case whatsoever as to whether any

10 of the exposures that Mr. DeMayo had did or did

11 not contribute to his cumulative dose and increase

12 his risk for mesothelioma, is that right?

13 MR. MACHI: Objection.

14 THE WITNESS: What Im saying is

15 that right at this moment, because of the lack of

16 information regarding what products he handled

17 that may have contained asbestos or what type of

18 the asbestos and how much of what he did, it is

19 not possible to know if he was exposed to a

20 harmful dose.

21 BY MR. PLACITELLA:

22 Q. Okay. Lets look at your report,

23 Page 4. You talk on Page 4 about St.

24 Christophers Church. Do you see that?

25 A. Yes.

1 Q. Did Mr. — based on your

2 description, did Mr. DeMayo have a significant

3 exposure to asbestos at St. Christophers Church?

4 A. What are you calling significant?

5 Q. What do you call significant?

6 A. I would call significant, a

7 sufficient dose to increase ones risk of getting

8 disease.

9 Q. Okay. Do you believe that the

10 description that youve laid out in this paragraph

11 would increase the risk of Mr. DeMayo contracting

12 mesothelioma?

13 A. Theres not enough information there

14 to permit me to draw a conclusion one way or the

15 other.

16 Q. Okay. So, if youre asked, for

17 instance, to opine or give an opinion in a trial

18 that says, was it this exposure versus some other

19 exposures based upon the information you have of

20 St. Christopher Church, you would have to

21 eliminate as a contributing cause, correct?

22 MR. MACHI: Objection.

23 MS. BANEZ: Objection.

24 MR. DESTRIBATS: Objection.

25 THE WITNESS: Well, I would have to

1 perhaps make certain assumptions.

2 BY MR. PLACITELLA:

3 Q. Well, what assumptions would you

4 need?

5 A. For example, I might have to suggest

6 what type of asbestos might have been in those

7 panels that he cut.

8 Q. All right. But you dont know for

9 sure as you sit here?

10 A. Thats –

11 MR. DESTRIBATS: Objection.

12 THE WITNESS: Thats true, I dont

13 know.

14 BY MR. PLACITELLA:

15 Q. Okay. So if youre asked in this

16 case to apportion a percentage of responsibility

17 to the exposure at St. Christophers Church, you

18 would be unable to do that, true?

19 A. Unless I were able to make some

20 assumptions.

21 Q. But based on the information you

22 have now, sir, you would be unable to offer that

23 opinion at trial, true?

24 A. Thats true.

25 Q. Okay. It says — the next two

1 paragraphs talk about exposure at Sandoz. Do you

2 see that?

3 MR. MACHI: Objection.

4 THE WITNESS: Yes, I see what Ive

5 written here.

6 BY MR. PLACITELLA:

7 Q. Do you have an opinion as to whether

8 the exposure at Sandoz was enough to increase the

9 risk of contracting mesothelioma in Mr. DeMayo?

10 MR. MACHI: Objection.

11 MR. HARKINS: Objection to form.

12 MR. PLACITELLA: You guys have to

13 pick one guy to object. I dont mind if you

14 object, but one guy per team.

15 MR. HARKIN: Okay. If Bob objected,

16 I withdraw my objection.

17 MR. PLACITELLA: Okay, so Bob is

18 going to make the objections.

19 BY MR. PLACITELLA:

20 Q. All right. Go ahead.

21 A. I would have the same problem as

22 with the church.

23 Q. Okay. So if youre in a trial and

24 asked the question to apportion certain

25 responsibility for increasing the risk of

1 mesothelioma to the exposure as you understand it

2 at Sandoz currently, you would be unable to do

3 that, true?

4 MR. MACHI: Objection.

5 THE WITNESS: Its true, unless I

6 made some assumptions or were given additional

7 information.

8 BY MR. PLACITELLA:

9 Q. What assumptions would you like for

10 Sandoz? Which questions would you like answered?

11 A. Did it, in fact, contain asbestos,

12 what type of asbestos, exactly what he did, how

13 much did he cut, how much did he sand, and what

14 were the ventilation conditions?

15 Q. But you dont have that information

16 now?

17 A. Not enough to make a conclusion.

18 Q. Okay. The next talks about exposure

19 at Ciba-Geigy. Do you have enough information to

20 give an opinion as to whether the exposure at

21 Ciby-Geigy materially increased his risk of

22 mesothelioma?

23 MR. MACHI: Objection.

24 THE WITNESS: I dont know. Lets

25 see, hes talking about joint compound. Lets

1 see. In this particular situation, talking about

2 joint compound, which we know would be if it

3 contained asbestos at that point, it would be

4 chrysotile. Ceiling tiles would be chrysotile,

5 doors — it looks like in this situation

6 everything would be chrysotile, so that is not a

7 situation which would increase his risk of getting

8 mesothelioma.

9 Q. So if offered at trial to apportion

10 risk to the exposure at Ciba-Geigy, you would be

11 unable to do that; you would say there is no risk,

12 right?

13 MR. MACHI: Objection.

14 MR. DESTRIBATS: Objection.

15 THE WITNESS: Based on that the only

16 asbestos-containing materials he would have used

17 would be chrysotile and it would be limited to the

18 descriptions in that paragraph, it would be my

19 opinion he would not have been exposed to a

20 sufficient dose to increase his risk of getting

21 mesothelioma.

22 BY MR. PLACITELLA:

23 Q. Okay. Now, rather than spend a lot

24 of time, you go through Warner-Lambert, Short

25 Hills Mall, Morristown Memorial Hospital, Rockaway

1 Mall, Exxon, AT&T and Prudential. Do you see

2 those?

3 A. Yes.

4 Q. If I were to ask you the same

5 question for each one of them, that is, was there

6 enough exposure at any one of those sites to

7 increase his risk for mesothelioma, what would

8 your answer be?

9 A. I would have to go through each one

10 of those, look at what the product is, whether

11 its — I can be sure its chrysotile or not and

12 get some idea of what he did, and then I would

13 make an opinion one way or the other.

14 Q. All right. But youve gotten all

15 the information there is to get at this point.

16 Where else do you think youre going to get

17 information from at this point? Youve read every

18 deposition. Youve read the deposition of the

19 defendants. Where else are you going to get

20 information at this point to answer your

21 questions?

22 A. I dont know.

23 Q. So at this point, youre aware of no

24 other additional information that would help you

25 answer your questions?

1 A. Thats true.

2 Q. Okay. So youre not in a position

3 at trial to apportion responsibility for

4 Mr. DeMayos mesothelioma to any one of the sites

5 listed in your report, true?

6 A. Its true Im not able to look and

7 say for sure he would have been exposed to a

8 harmful dose at any one of those sites. I may,

9 from looking at some of those, feel I have enough

10 information to say that he was not exposed to a

11 harmful level at a given site.

12 Q. At a given site, okay. Tell me

13 which site, which sites mentioned in your report

14 you are — have enough information to indicate

15 that he was not exposed to a harmful dose in and

16 of itself?

17 A. Okay, so you want me –

18 MR. MACHI: Objection. Asked and

19 answered.

20 THE WITNESS: Do you want me to go

21 through each one of them?

22 BY MR. PLACITELLA:

23 Q. Not the ones youve done so far.

24 A. Okay. So the ones weve done so far

25 is through Ciby-Geigy.

1 Q. Right.

2 A. So Warner-Lambert. He talks about

3 being around people working on insulation. And

4 while the majority of insulation is chrysotile,

5 its not a hundred percent chrysotile all the

6 time. Based on his description, its most likely

7 he could not have been exposed to a harmful level

8 because he wasnt the one working with the

9 insulation. He didnt even work with the joint

10 compound. So I would be pretty confident in

11 drawing a conclusion that he would not have been

12 exposed to harmful levels of asbestos at Warner

13 Lambert.

14 For the Short Hills Mall, its

15 unclear to me when he started working at the Short

16 Hills Mall. Most of the joint compound, asbestos

17 and joint compound was taken out in the early to

18 mid 70s, maybe not all manufacturers, but several

19 or a number of them did. And hes really only

20 talking about joint compound. And so, even if

21 there was some in, its chrysotile. So, no, not

22 Short Hills.

23 Morristown Memorial Hospital, again,

24 thats just joint compound and ceiling tile, so,

25 no.

1 Rockaway Mall, no.

2 Exxon, renovating three buildings,

3 early 1980s, I would have to go back and look a

4 little more carefully at what he did in Exxon. So

5 Im not ready without reviewing — I dont

6 remember everything he said about Exxon, so I

7 cant draw a conclusion there.

8 So in talking about joint compound

9 and installing ceilings in the early 80s, it

10 wouldnt be asbestos anyway, so no to AT&T.

11 Mid 1980s, no for Hilton, so –

12 Q. Okay. If you look at all the work

13 sites beginning on Page 4 in your descriptions

14 going through to Page 6, do you have an opinion as

15 to whether the cumulative dose from all those work

16 sites put together increased Mr. DeMayos risk for

17 contracting mesothelioma?

18 MR. MACHI: Objection to the form of

19 the question.

20 MR. DESTRIBATS: Objection.

21 THE WITNESS: Again, I dont have

22 enough information to draw a conclusion.

23 BY MR. PLACITELLA:

24 Q. Okay. So you cant give an opinion

25 like this at this point in time based on all the

1 information you have?

2 A. I would have to make certain

3 assumptions about the content of certain products.

4 Q. Okay. Now, you did indicate, I

5 think you said when you drew some of your

6 conclusions as to exposure in the early 70s to

7 joint compounds, you said about that time thats

8 when asbestos was being taken out, right?

9 A. Yes.

10 Q. Would you agree with me that during

11 the 1960s, joint compound was generally

12 recognized to have asbestos as a constituent

13 element?

14 MR. DESTRIBATS: Objection.

15 THE WITNESS: I know that a number

16 of joint compounds did have some asbestos in them.

17 Usually a small percentage.

18 BY MR. PLACITELLA:

19 Q. All right. And can you think of a

20 single manufacturer of joint compound during the

21 1960s that did not have asbestos as an ingredient

22 in its joint compound?

23 A. No.

24 Q. So as far as you know, it is more

25 likely than not that if you were exposed to joint

1 compound in the 1960s, that joint compound

2 contained asbestos, true?

3 MR. MACHI: Objection.

4 THE WITNESS: When you say exposed

5 to joint compound, you mean working with it?

6 BY MR. PLACITELLA:

7 Q. Yes.

8 A. That that joint compound would have

9 contained asbestos?

10 Q. Yes.

11 A. Thats a good — yes, more likely

12 than not, yes.

13 Q. Okay. Now, and you hold that

14 opinion up until sometime in the early 1970s when

15 they start to phase it out, right?

16 A. And some time in the mid 1970s.

17 Q. Okay. Now, and when you say mid

18 1970s, can you be a little bit more definitive?

19 A. I mean around 1975, and its going

20 to vary from manufacturer to manufacturer.

21 Q. So its your opinion that up until

22 1975, if youre working with joint compound, more

23 likely than not the joint compound that youre

24 working with contains asbestos?

25 MS. BANEZ: Objection.

1 MR. DESTRIBATS: Can I just clarify,

2 when you say working, you mean actually applying

3 the joint compound?

4 MR. PLACITELLA: Yeah.

5 THE WITNESS: Well, applying doesnt

6 cause exposure to asbestos.

7 BY MR. PLACITELLA:

8 Q. Well, let me rephrase my question.

9 Prior to 1975, joint compounds that were available

10 on the market, if theyre on the job site, its

11 more likely than not that those joint compounds

12 contained asbestos?

13 A. You know, I cant say –

14 MS. BANEZ: Objection.

15 THE WITNESS: — an exact date, but

16 around then, yes.

17 BY MR. PLACITELLA:

18 Q. Okay. Now, in say 1960 if somebody

19 wanted to find out if there was asbestos being

20 used in a joint compound at a specific work site,

21 how would they do that?

22 A. You could test the bulk — you mean

23 if its going to be used at a –

24 Q. Yeah.

25 A. You could test the materials thats

1 brought in.

2 Q. Okay. So in line with your

3 principle of knowing what products are being used

4 on a work site, was it — was there technology

5 available in 1960 to determine whether the joint

6 compound you were going to use in that work site

7 contained asbestos?

8 A. There was technology available to

9 determine if joint compound contained asbestos.

10 Q. How about pipe covering?

11 A. The same for pipe covering.

12 Q. How about asbestos — how about

13 cement?

14 A. Yes.

15 Q. How about doors?

16 A. Although Im not really aware of

17 asbestos being used much in cement.

18 Q. Do you know what insulating cement

19 is?

20 A. Oh, youre talking about insulating

21 cement?

22 Q. Yes.

23 A. Yes.

24 Q. And how about countertops?

25 A. It would be a little harder, but it

1 could be done.

2 Q. Okay. Now –

3 MR. DESTRIBATS: Is this a good time

4 to take a break?

5 MR. PLACITELLA: Yeah, sure.

6 (Recess at 1:59 p.m.)

7 (Resumed at 2:08 p.m.)

8 BY MR. PLACITELLA:

9 Q. You didnt talk about the case

10 during the break, right?

11 A. The case? I talked about the

12 testimony.

13 Q. What did you say?

14 A. I just said you were pretty sharp

15 and that you went really fast.

16 MR. DESTRIBATS: Objection.

17 MS. BANEZ: Objection.

18 BY MR. PLACITELLA:

19 Q. Did you talk about any substance?

20 A. Well, I talked about some of the

21 things you asked about, the timing of like some of

22 the industrial hygiene principles. You know, Im

23 saying it was hard to put a firm time because the

24 science wasnt that well-evolved before the first

25 half of the last century.

1 Q. Were you asked to stay away from

2 anything or to steer away from anything?

3 A. No, no.

4 Q. Okay. Now, how many cases have you

5 reviewed on behalf of defendants in asbestos

6 litigation?

7 A. How many cases? I dont know the

8 number, but you know, if I had to ballpark it,

9 probably over 500.

10 Q. And in the 500 that you looked at,

11 did you ever find exposure to the defendants

12 product that you were working with or being

13 consulted on increased the risk of mesothelioma?

14 A. Let me think.

15 MR. DESTRIBATS: I dont know that

16 he said that all 500 were cases that involved

17 mesothelioma.

18 MR. PLACITELLA: I understand. I

19 know. That wasnt my question.

20 THE WITNESS: You know, its

21 possible that some were and it was at an early

22 time period when the defense was state-of-the-art,

23 but I cant think of any offhand though.

24 BY MR. PLACITELLA:

25 Q. What do you mean by that, when the

1 defense was state-of-the-art?

2 A. That the exposure might have

3 happened many, many years ago before the

4 occupational health community would have thought

5 that such exposures could cause a risk, but there

6 might have, in fact, been a risk, just they

7 wouldnt have known.

8 Q. But my question is, did you ever

9 conclude, in all the cases youve ever reviewed,

10 that the exposures attributed to any of the

11 defendants you were consulting for, increased the

12 risk of mesothelioma?

13 A. And Im saying that might have

14 happened. I cant think of one specifically, but

15 that might have happened. And I probably would

16 have been working with them because the defense

17 would have been — nobody would have known or

18 thought that that could have been a problem.

19 Q. Well, what about in the last 10

20 years, have you ever given an opinion to any

21 company youve ever done work for that the

22 exposures related to that company contributed to

23 the risk of mesothelioma?

24 A. I cant think of one offhand. Im

25 just saying that that might have happened.

1 Q. Have you ever to this day consulted

2 on behalf of a plaintiff?

3 A. For any exposure to anything?

4 Q. In a mesothelioma case.

5 A. Oh, not in a mesothelioma case.

6 Q. Now, how about in an asbestos case?

7 A. No, not in an asbestos case.

8 Q. Now, you brought with you a bag of

9 tricks, a bunch of stuff in that. What is in

10 there?

11 A. My file in this case.

12 Q. And what is in the file? Can you

13 take it out for me? Let me just — can you hand

14 it to me? I could probably do this quick. During

15 the next break, Ill look at it. Okay, do you

16 have any problem with me looking at it, sir?

17 A. No. You might as well look at that,

18 too.

19 Q. Okay. Now, in addition to the

20 materials that you have here, did you review any

21 internal documents from Allied?

22 A. No.

23 Q. You never reviewed any internal

24 documents from Allied?

25 A. Not that isnt in there.

1 Q. Oh, theyre in there?

2 A. There are documents in there.

3 Q. From Allied?

4 A. From Allied, yes.

5 Q. Okay. What about depositions, have

6 you reviewed any Allied depositions?

7 A. Theres a deposition in there of

8 Joel Charm.

9 Q. Okay. Thats the only one?

10 A. Thats the only Allied deposition.

11 Q. Have you spoken to any Allied

12 employees as part of your investigation?

13 A. Not in this case.

14 Q. Okay. Have you spoken to any Allied

15 employees in other cases that would bear on your

16 opinions in this case?

17 A. The only employee I have talked to

18 in the past is Joel Charm, and it would just — I

19 mean the only bearing it would have on this case

20 is his impressions of what Allied was doing, but

21 that doesnt even go back to the 60s.

22 Q. What medical research resources were

23 available to Allied in the 1960s if they wanted

24 to do research on asbestos and health?

25 MR. DESTRIBATS: In the 60s or from

1 1960 to 62? Is this just a decade question?

2 BY MR. PLACITELLA:

3 Q. Early 1960s.

4 A. Wait. Youre asking what resources

5 were available to them if –

6 Q. Uh-huh, if they chose to look.

7 A. — if they chose to investigate the

8 hazards of asbestos?

9 Q. Right.

10 A. Well, they could go to the

11 literature that was available regarding the

12 hazards of asbestos.

13 Q. And how would they do that?

14 A. Go to the library, go to Index

15 Medicus, I think, was around then.

16 Q. And Index Medicus, if they went in

17 1960 to find out if any of the products they were

18 putting in their plant were potentially hazardous,

19 how would they do that?

20 A. Well, they would review the

21 information that was available about the hazards

22 of asbestos. They would find out that theres an

23 exposure limit for asbestos and then they could

24 probably — would have looked and seen that the

25 exposure limit was such that, for the most part,

1 the people who were exposed to levels above the

2 limit were working with raw asbestos, and that

3 people working with products that contained

4 asbestos, it was not generally thought they would

5 be exposed to levels of asbestos where they would

6 be at risk of getting an asbestos-related disease.

7 Q. Do you recall what my question was?

8 A. What could they do to find out about

9 the hazards of asbestos or the products being

10 brought into their plant?

11 Q. So what resources could they — they

12 could to Index Medicus, correct?

13 A. Well, they could go to the state and

14 look at the state laws regarding exposure to

15 asbestos. And then from reading various articles,

16 they would come to the conclusion that the

17 products brought into their plant that werent –

18 if they werent raw asbestos, likely not to be a

19 hazard.

20 Q. Well, how about if they — should

21 they interview the contractors that worked in

22 their plant?

23 A. Well, you asked me about determining

24 if the products they were bringing into the plant

25 were hazardous.

1 Q. Yeah.

2 A. And I mentioned to you a way where

3 they could find out that they would not be a

4 hazard and it wouldnt require them to talk to the

5 contractors.

6 Q. Well, is one of the ways to find out

7 recognized as to talk to the contractors and ask

8 them what products they were working with and

9 whether the contractors had any information as to

10 whether theyre hazardous?

11 A. They could ask.

12 Q. Is that something that would have

13 been good industrial practice?

14 MR. DESTRIBATS: Objection.

15 THE WITNESS: Its not necessary

16 because I just provided a mechanism where they

17 wouldnt have to talk to the contractor to know if

18 there was a problem.

19 BY MR. PLACITELLA:

20 Q. Well, suppose a contractor had

21 information that was different than what was in

22 the medical literature, sir?

23 MS. BANEZ: Objection.

24 THE WITNESS: So youre saying a

25 contractor would know something that the whole

1 occupational health community wouldnt know?

2 BY MR. PLACITELLA:

3 Q. Well, how about if the contractors

4 were appearing in Courts of Law, sir, before they

5 were ever hired by Allied to answer allegations

6 that their employees were already getting sick

7 from asbestos, would that matter?

8 MS. BANEZ: Objection to form.

9 MR. DESTRIBATS: Objection.

10 THE WITNESS: Again, I would think

11 someone like Allied would, if they wanted to know

12 about the health hazards, it would be perfectly

13 appropriate to look at everything the occupational

14 health community knew about the health hazards and

15 if it seemed to be fairly well-defined, I dont

16 see a need to go any further.

17 BY MR. PLACITELLA:

18 Q. So they didnt have any

19 responsibility to ask the contractors whether they

20 had any adverse experience with the products that

21 theyre using, is that your testimony?

22 MR. DESTRIBATS: Objection. Asked

23 answered.

24 MS. BANEZ: Objection.

25 THE WITNESS: Again, if the

1 occupational health community, if the industrial

2 hygiene community, if they inquired and the

3 experience there said that there was no problem

4 with using asbestos-containing insulation, I dont

5 see where theyd need to go any further.

6 BY MR. PLACITELLA:

7 Q. How many times do we have to be sued

8 in a Court of Law, in your opinion, sir, before

9 you had notice that the products that the people

10 that were using were potentially hazardous, how

11 many times would you have to be sued?

12 MR. DESTRIBATS: Objection.

13 MS. BANEZ: Objection.

14 THE WITNESS: Well, first of all,

15 being sued doesnt necessarily mean theres a

16 problem.

17 BY MR. PLACITELLA:

18 Q. Okay. Well, let me ask the question

19 this way. What information do you have that

20 Allied checked about whether the products being

21 used in their facility in the early 1960s were

22 potentially hazardous or not?

23 MR. DESTRIBATS: Objection.

24 THE WITNESS: I forget now at what

25 time period they had occupational medicine or

1 industrial hygiene help. But when they had that

2 type of expertise, I would expect them to have

3 been aware of the hazards of asbestos.

4 BY MR. PLACITELLA:

5 Q. Well, when was that, sir?

6 A. You know, I dont remember the date

7 at this moment.

8 Q. Do you know whether Allied had –

9 how would you find that out?

10 A. I could go and ask them.

11 Q. Who would you ask?

12 A. Well, I guess I might ask Joel Charm

13 or Steve Rutgarts (phonetic). I know Warren

14 Ferguson, I think, was prior to — well –

15 Q. Who is Warren Ferguson, sir?

16 A. I thought he was an industrial

17 hygienist before Joel Charm.

18 Q. And have you ever spoken to him?

19 A. No.

20 Q. Where is he located?

21 A. I dont know.

22 Q. How did you know about Warren

23 Ferguson?

24 A. I remember that name from another

25 case.

1 Q. Do you know whether he worked for

2 Allied during the 1960s?

3 A. And that is what I need to refresh

4 my memory.

5 Q. Do you know whether Allied had any

6 doctors working for it in the early 1960s?

7 A. Again, I would have to refresh my

8 memory just when they had that expertise.

9 Q. Would you agree with me, sir, that

10 by the early 1960s, Allied had the resources to

11 do an investigation if it wanted to?

12 MR. DESTRIBATS: Can you just

13 identify what you mean by the early 1960s?

14 MR. PLACITELLA: 1960 to 1963, in

15 that time frame.

16 BY MR. PLACITELLA:

17 Q. Did Allied have the resources

18 available to it, if it wanted to, to conduct an

19 investigation concerning whether the products used

20 in its plant were hazardous or not?

21 MR. DESTRIBATS: Objection to form.

22 You can answer.

23 THE WITNESS: Well, again, anybody

24 can go to the library and research that

25 information.

1 BY MR. PLACITELLA:

2 Q. Well, this is a big company, you

3 agree with me?

4 A. Yes.

5 Q. And they had the resources to go

6 look if they wanted to, right; it wasnt a cost

7 issue, right?

8 A. Well, I mean theres a cost for

9 everything.

10 Q. As a matter of good practice for

11 industrial hygiene, is that something you should

12 skimp on, research as to the potential hazards of

13 materials used in your workplace?

14 MR. DESTRIBATS: Objection to form.

15 THE WITNESS: Well, see, in the time

16 period youre talking about, asbestos insulation,

17 the use of the asbestos insulation was not

18 considered hazardous.

19 BY MR. PLACITELLA:

20 Q. That wasnt my question.

21 MR. PLACITELLA: Could you read my

22 question back, please?

23 (The record is read back as

24 requested.)

25 MR. PLACITELLA: Forget it. Ill

1 ask the next question.

2 BY MR. PLACITELLA:

3 Q. What resources were available to

4 Allied, sir, in terms of testing the dust levels

5 in the plant, if they wanted to, during

6 construction during the 1960s to 1963 time frame?

7 A. Youre talking about the testing for

8 asbestos exposure?

9 Q. Asbestos-containing dust.

10 A. There was the impinger method.

11 Q. And that was available?

12 A. Yes.

13 Q. Was the threshold limit value of

14 five million particles per cubic foot a recognized

15 industrial hygiene standard in the early 1960s?

16 A. Yes.

17 Q. And how would you know whether the

18 standard was being exceeded or not in the early

19 1960s?

20 A. Actually, it was pretty much known

21 that you had to be using raw asbestos to get those

22 kinds of — exceed those kinds of levels. And

23 working with finished products would not result in

24 those kinds of exposures.

25 Q. Could you cite to me an article that

1 supports that statement, sir, that you would have

2 to use raw asbestos in order to exceed the

3 threshold limit value for asbestos-containing dust

4 in the early 1960s?

5 A. I cant cite a specific article, but

6 for the most part if you looked at the data, the

7 studies, even when Merewether or Dreesen were

8 doing it, they were all doing it in studies where

9 raw asbestos was being handled. And you had like

10 the Drinker article.

11 Q. That was raw asbestos, sir, the

12 Drinker article?

13 A. No, the Drinker article was

14 insulation, and his conclusion was that there was

15 not a risk.

16 Q. Well, that wasnt his total

17 conclusion, was it, sir? Well, you know what,

18 well fight about that at trial. What about

19 Merewether, its your testimony here today that

20 Merewether studies focused only on raw asbestos?

21 A. I thought it was mostly. I think he

22 did do some, it might have been some grinding of

23 brake lining in some of his measurements.

24 Q. What else? Are you sure about that?

25 A. Im –

1 Q. Sir, in 19, early 1960s –

2 MR. DESTRIBATS: Are you finished

3 with your answer?

4 THE WITNESS: Yeah, Im not a

5 hundred percent sure.

6 BY MR. PLACITELLA:

7 Q. In the early 1960s, if Allied

8 wanted to find out whether the dust levels in its

9 plant exceeded the TLV during construction, they

10 could have done so by using the impinger, correct?

11 A. They could have, but industrial

12 hygienists would have said, its really not

13 necessary, its highly unlikely unless something

14 very unusual was going on that it would be

15 exceeded.

16 Q. Okay. Sir, you understand the

17 principle that, was it ever recognized in the

18 industrial hygiene literature that if you can see

19 dust, that its likely that the five million

20 particle per cubic foot standard is exceeded?

21 MR. DESTRIBATS: Objection to the

22 from.

23 THE WITNESS: I never heard that.

24 BY MR. PLACITELLA:

25 Q. You never heard that?

1 A. No.

2 Q. Youve never seen articles to that

3 effect?

4 A. That if you can see the dust, the

5 five million?

6 Q. Right.

7 A. No, Ive never seen that.

8 Q. Are you aware of principles in

9 industrial hygiene prior to 1960 that say if you

10 see dust, you should test to determine what level

11 of asbestos-containing dust is in the air?

12 A. No.

13 Q. Okay. Sir, how much asbestos — how

14 many asbestos fibers can you fit in a thimble?

15 A. I dont know.

16 Q. Well, is it a hundred, a million,

17 five million, five billion?

18 A. Its a huge number.

19 Q. More than a hundred million?

20 A. That of individual fibers that can

21 fit in a thimble?

22 Q. Right.

23 A. Its a huge number. I dont know

24 the number.

25 Q. Well, give me the lowest possible

1 number that you could think of, how many fibers

2 could fit in a thimble?

3 A. I just dont know. Its just a

4 large, large number.

5 Q. More than a million?

6 A. Sure.

7 Q. More than 50 million?

8 A. Sure.

9 Q. More than a hundred million?

10 A. Yes.

11 Q. More than a billion?

12 A. Like I said, I dont know the exact

13 number. I just know its a very large number.

14 Q. And if you had to put those fibers

15 end to end that would fit in a thimble, how many

16 times would they circle the earth, sir?

17 MR. DESTRIBATS: Objection.

18 THE WITNESS: I dont think they

19 would circle the earth, I dont think even once.

20 BY MR. PLACITELLA:

21 Q. Could they cross the United States,

22 sir –

23 MR. DESTRIBATS: Objection.

24 BY MR. PLACITELLA:

25 Q. If you had to put all the fibers in

1 one thimble, of asbestos, could you lay them end

2 to end and reach from one coast to the other?

3 MR. DESTRIBATS: With bridges

4 included? Objection to form.

5 THE WITNESS: I mean were talking

6 about lengths of, what, 10, 20, 30 microns?

7 BY MR. PLACITELLA:

8 Q. Yes, sir.

9 A. Lets see, so wed have to do 30

10 microns into the length of the United States and

11 then we would come up with a number and see if

12 that fits. I would have to do the math.

13 Q. All right. Well do that at a

14 break, okay?

15 A. No, because I dont know the number

16 of fibers thatll fit in a thimble.

17 Q. At least a hundred million fibers

18 would fit in a thimble, true?

19 A. I believe that, yeah.

20 Q. Okay. And the number is probably

21 somewhere between a hundred million and a billion

22 fibers would fit in a thimble, correct?

23 A. I would say I dont know the exact

24 number. I know its a large number. You might be

25 right.

1 Q. Okay. Now, you talked before about

2 joint compound. Is there any amount of exposure

3 to joint compound in your mind that would increase

4 the risk of mesothelioma?

5 A. You mean any exposure to the

6 asbestos in joint compound that could increase any

7 exposure? Its possible.

8 Q. How much exposure to joint compound

9 would you need in order to increase your risk of

10 mesothelioma?

11 MR. DESTRIBATS: Could we go off the

12 record for a second?

13 (Discussion is held off the record.)

14 THE WITNESS: To answer that

15 question, you would have to know the answer of

16 what dose of chrysotile would be required to

17 increase the risk of causing mesothelioma. There

18 are epidemiology studies that suggest that

19 chrysotile may not cause mesothelioma at all.

20 However, in some of these large cohorts there are

21 some cases of mesothelioma. So you either — so

22 to be able to say that chrysotile doesnt cause

23 mesothelioma, you would have to explain that these

24 mesothelioma cases in the cohorts were caused by

25 something else. And that is possible.

1 In the asbestos mines in Quebec, you

2 could say it was caused by tremolite or because

3 there was amphibole used in a factory there. For

4 the Carolina textile studies, you could suggest

5 there were amphiboles used.

6 But if you dont want to say they

7 were caused by amphibole, if you want to say it

8 was caused by chrysotile, the few numbers there

9 would suggest that it would require a very high

10 dose. What that dose is, its not known. And so,

11 for joint compound to result in an increased risk

12 of mesothelioma, it would have to be an exposure

13 that, you know, I cant even foresee, a career

14 person who just does joint compound — who just

15 uses joint compound being exposed to a dose of

16 asbestos, that would increase their risk of

17 getting mesothelioma.

18 BY MR. PLACITELLA:

19 Q. So, in your opinion, somebody could

20 work with joint compound every day of his working

21 life and never have an increased risk for

22 mesothelioma, correct, thats your opinion?

23 A. Im not saying it with 100 percent

24 certainty because I dont know the actual dose,

25 but Im saying that could very well happen, but

1 there could be some instance where someone who

2 really is doing it a lot, for a very long period

3 possibly might reach a dose where if chrysotile

4 can cause mesothelioma, that might approach that

5 dose.

6 Q. Well, what are you going to tell the

7 jury when I ask you this question on the stand and

8 I say, if somebody worked with a joint compound

9 that contained asbestos for their entire working

10 life, every day, do you believe that they could

11 have enough dose to cause mesothelioma, whats

12 your answer? And the judge says to you, yes or

13 no, whats your answer?

14 A. Id say it cant be answered yes or

15 no.

16 Q. Okay. You agree that there are

17 respected scientists that believe exposure to

18 chrysotile can cause mesothelioma, true?

19 A. Yes.

20 Q. Okay. Now, when asbestos is used in

21 the workplace during construction, okay –

22 A. Okay.

23 Q. — and the job is over, how do you

24 make sure all the asbestos is out of the building?

25 MR. DESTRIBATS: Objection.

1 THE WITNESS: Are we talking about a

2 remediation project?

3 BY MR. PLACITELLA:

4 Q. No. Im talking about theres

5 construction, like say in Allied in the early

6 1960s.

7 A. Okay.

8 Q. Okay, and they used

9 asbestos-containing products as part of the

10 construction. Thats my hypothetical.

11 A. Okay.

12 Q. What do you do to make sure that all

13 the asbestos is removed, is eliminated from the

14 work environment after the construction is done?

15 MS. BANEZ: Objection to form.

16 THE WITNESS: Well, there wont be.

17 You have asbestos-containing materials that were

18 put in the building to stay.

19 BY MR. PLACITELLA:

20 Q. Im talking about respirable

21 asbestos fibers. Let me re-ask the question,

22 okay?

23 A. Okay.

24 Q. After the construction is complete,

25 what do you do, or can you eliminate respirable

1 asbestos fibers from that building?

2 A. Okay. So youre saying that during

3 the construction, asbestos fibers were emitted

4 into the air?

5 Q. Correct.

6 A. And youre saying they stayed there?

7 Q. Im asking you what happens to the

8 asbestos fibers when theyre in the air, sir?

9 A. They get diluted and are removed.

10 Q. How are they removed?

11 A. Ventilation systems.

12 Q. Okay. So your testimony would be

13 that the ventilation systems that are installed in

14 buildings would remove all the asbestos fibers

15 that were released into the air during

16 construction?

17 A. Well, some of the fibers would stay

18 in the air and be removed from ventilation. If

19 there were some fibers in areas where there was

20 little or no ventilation, they would settle. They

21 dont settle very fast; they stay in the air a

22 long time. But some could settle and could be

23 entrained in dust, and then some of that could be

24 removed during cleaning activities, some of that

25 might be re-entrained in the air again, at which

1 time the ventilation would act to remove them.

2 So between the removal from the dust

3 and the ventilation in the air, given the certain

4 amount of time, a good deal of the fibers would be

5 eliminated. It would never go down to zero

6 because we have asbestos in the ambient air. So

7 it would always remain — there would always, to

8 this day, to right here in this room, there will

9 always remain some asbestos in the air.

10 Q. How long would it take, sir, in your

11 opinion, after construction is complete to have

12 the asbestos eliminated from the environment where

13 the asbestos was used?

14 A. Are you talking about –

15 Q. The respirable fibers or respirable

16 asbestos fibers that are in the air, how long?

17 MS. BANEZ: Objection.

18 MR. MACHI: Objection.

19 THE WITNESS: Youre talking about

20 going down to background levels?

21 BY MR. PLACITELLA:

22 Q. Correct. How long?

23 A. Well, it depends on how many air

24 changes per hour are going on in the room, it

25 depends on cleaning activities. And so, I cant

1 give you an exact answer because I dont know how

2 many air changes per hour were going on there.

3 Q. Well, in the average industrial

4 building, how many air changes per hour are there?

5 MR. DESTRIBATS: Objection.

6 THE WITNESS: It varies.

7 BY MR. PLACITELLA:

8 Q. Well, how long on the shortest level

9 would you think it would take for the respirable

10 asbestos to be eliminated from the work site?

11 A. Well, if you had a lot of air

12 changes per hour, you might have several air

13 changes an hour. So within a day you would turn

14 over the air in the building a number of times.

15 There might be another day for some sweeping and

16 cleaning and re-entrainment. But within a day or

17 two it should be gone.

18 Q. Suppose the ventilation system isnt

19 switched on, how long would it take for the

20 asbestos to be eliminated from the work

21 environment if the ventilation system is not yet

22 switched on?

23 A. Well, if the ventilation is not

24 switched on at all, if theres no air movement,

25 those fibers in the air would slowly settle.

1 There would be some elimination. Even areas

2 without mechanical ventilation usually have, oh,

3 about a quarter of an air change per hour. So in

4 four hours you would still have a turnover of the

5 building air, except that its often not

6 completely efficient, so it usually takes longer

7 to completely turn over the air.

8 So even if you werent doing

9 anything, boy — are there activities, are doors

10 being opened and closed, are people walking

11 around?

12 Q. Normal activities.

13 A. Oh, well, normal activities would

14 have the ventilation on, too.

15 Q. No, without ventilation, sir.

16 Normal construction site activities –

17 A. Oh, normal construction –

18 Q. — if something is flipped on, its

19 before they turn on the ventilation, how long does

20 the asbestos stay in the environment?

21 MS. BANEZ: Objection.

22 MR. MACHI: Objection.

23 THE WITNESS: But now, youre saying

24 theres a lot of construction activity, people

25 coming in, going out, doors opening.

1 BY MR. PLACITELLA:

2 Q. Yeah, thats fine.

3 A. Okay. You know, several days,

4 something like that.

5 Q. Okay. When you — how long does an

6 asbestos fiber typically stay in the air when its

7 entrained into the environment?

8 MR. DESTRIBATS: Just one second.

9 Typical asbestos fiber, do you have a length or

10 are you just –

11 MR. PLACITELLA: No, typical

12 asbestos fiber.

13 MR. MACHI: Objection to form.

14 THE WITNESS: It actually behaves

15 like a molecule than a particulate. The

16 gravitational forces are very weak, and so it

17 stays in the air for hours and hours, and it

18 pretty much, its movement is dictated by the

19 ambient air movements.

20 BY MR. PLACITELLA:

21 Q. Okay. So for instance, if work is

22 done in a room — how big do you think this room

23 is?

24 A. I dont know, 20-by-30.

25 Q. Okay. If work is done in a room,

1 like this 20-by-30 and asbestos fibers are

2 generated, and theres a door and the people walk

3 out the door into the hallway, would you expect

4 that they take some of that asbestos fiber with

5 them into the hallway?

6 MR. MACHI: Objection.

7 MR. DESTRIBATS: Objection.

8 THE WITNESS: If you had the air,

9 the asbestos distributed in the room, and yes,

10 some would exit and go into the hall.

11 BY MR. PLACITELLA:

12 Q. Okay. So, and vice versa, if

13 asbestos is being installed in the hall and

14 fabricated and dust is released into the air and

15 the worker walks in the hall into the room, would

16 you expect that some of that asbestos enters the

17 room?

18 MR. MACHI: Objection.

19 MR. DESTRIBATS: Objection.

20 THE WITNESS: Its possible that

21 some could come into the room, yes.

22 BY MR. PLACITELLA:

23 Q. Okay. And do you know what I mean

24 by re-entrainment?

25 A. Yes.

1 Q. What is your understanding of

2 re-entrainment?

3 A. Where the fibers have settled out

4 onto some substrate and then due to some activity

5 of that substrate, the fibers are released into

6 the air again.

7 Q. Okay. And how long does the

8 industrial hygiene community recognize the

9 principle of re-entrainment?

10 A. Well, as long as Ive been an

11 industrial hygienist.

12 Q. And how long is that, sir? Not to

13 date you.

14 A. Not to date me, well, I took my

15 masters in 1967, but Im sure that the principle

16 goes back earlier than when I first started.

17 Q. Would you agree that it goes back at

18 least to the 1950s?

19 A. Yes, I would.

20 Q. Okay. So would you agree with me

21 that it was known, at least by the 1950s, that if

22 there was asbestos fiber in the air and it settled

23 on the floor, that the physical walking across the

24 floor could re-entrain those fibers into the air?

25 A. It could re-entrain some, yes.

1 Q. Okay. Have you ever witnessed the

2 physical sweeping up of asbestos-containing

3 products from a floor?

4 A. I mean probably, yeah, during

5 asbestos remediation activities.

6 Q. Right. Does the sweeping up of

7 asbestos-containing dust generate significant

8 levels of asbestos-containing dust, in your

9 opinion?

10 MR. MACHI: Objection.

11 THE WITNESS: If youre doing it

12 dry, and you shouldnt be sweeping dry, but it

13 depends how much asbestos was on the ground.

14 BY MR. PLACITELLA:

15 Q. Have you ever seen joint compound

16 sanded?

17 A. Well, Ive done it.

18 Q. Have you ever seen

19 asbestos-containing joint compound sanded?

20 A. Ive done it.

21 Q. Okay. Youve done it?

22 A. Yeah.

23 Q. And does the residue from the

24 sanding fall to the ground?

25 A. Yes.

1 Q. And does the sweeping up of the

2 joint residue in a dry state generate asbestos

3 fibers into the atmosphere?

4 A. It will. Doing it dry, it will

5 likely generate some fibers into the air.

6 Q. Okay. Now, do you have your report

7 in front of you?

8 A. Yes.

9 Q. Now, by the way, in your report we

10 were talking about Page 14, and youre saying an

11 employers responsibility, do you remember that

12 part; we went through that?

13 A. Yes.

14 Q. If I employ Mr. Jones, I pay his

15 salary, you agree that I have a responsibility to

16 provide a safe place for him to work, correct?

17 A. Correct.

18 Q. I pay his salary?

19 A. Yes.

20 Q. All right. If I employ — and that

21 means that, what, I give him a W-2?

22 A. I would think you should.

23 Q. Okay. If I employ an independent

24 contractor, I dont give him a W-2, right?

25 A. Youre not employing; youre

1 contracting.

2 Q. Well, Im paying somebody, right?

3 A. Youre paying someone for a service.

4 Q. All right. And if youre an

5 employee, Im paying you for a service, right?

6 A. Well, but now, youre an employee,

7 W-2 –

8 Q. I understand that.

9 A. Thats right.

10 Q. But Im paying you for a service,

11 correct?

12 MR. DESTRIBATS: Objection.

13 THE WITNESS: I guess its

14 semantics.

15 BY MR. PLACITELLA:

16 Q. Okay. I agree with you. So if I

17 am — lets say Im going to pay one of my own

18 employees to install asbestos pipe covering on a

19 pipe, you agree I have a responsibility to make

20 sure that the person who is doing that works in a

21 healthful environment?

22 A. Correct.

23 Q. And I pay that person five dollars;

24 you with me?

25 A. Right, and you also control his work

1 product; you can tell him how to do his work.

2 Q. Okay. I pay him five dollars, okay?

3 A. Per hour.

4 Q. Per hour. All right, now, Im

5 paying an outside contractor the same five dollars

6 working in the same environment on the same pipe,

7 your opinion is that the employer has — that the

8 owner has no responsibility to that person?

9 MR. MACHI: Objection to the form of

10 the question. Calls for a legal conclusion.

11 THE WITNESS: Very often that person

12 isnt able to go and tell the employee how to do

13 the work. Only the employer can tell the person

14 how to do the work. By the same token, the owner

15 of the facility doesnt always tell how to do the

16 work or what kind of controls to put in place.

17 Thats often done by the employer.

18 BY MR. PLACITELLA:

19 Q. All right. The owner has the right

20 to tell the contractor how to do the work; do you

21 agree with me?

22 MR. MACHI: Objection.

23 THE WITNESS: Not necessarily.

24 BY MR. PLACITELLA:

25 Q. He doesnt have the right to tell

1 the contractor how to do the work?

2 A. Well, usually, the person

3 contracting is contracting because they, the

4 contractor, knows what theyre doing more so than

5 the premises owner.

6 Q. All right. So your opinion is that

7 the work site owner does not have the right to

8 tell the contractor how to do the work?

9 MR. MACHI: Objection.

10 THE WITNESS: You know, thats kind

11 of some — I dont know about rights. Thats kind

12 of legal.

13 BY MR. PLACITELLA:

14 Q. Okay. Do you agree with me that the

15 work site owner could stop that work any time the

16 work site owner deems necessary –

17 MR. MACHI: Objection.

18 BY MR. PLACITELLA:

19 Q. — for whatever reason?

20 MR. MACHI: Objection.

21 THE WITNESS: I would just assume if

22 youre on their premises, they could stop you if

23 they wanted to.

24 BY MR. PLACITELLA:

25 Q. Okay. Now, if we go to your report,

1 can you tell me — go to your report, Page 3. Do

2 you see that?

3 A. Yes.

4 Q. Do you have it in front of you?

5 A. Yes.

6 Q. Let me scroll up here for a second.

7 How much dust, asbestos-containing dust, by the

8 way, is generated during the sanding of joint

9 compound? Are you aware of studies to this

10 effect?

11 MR. MACHI: Objection.

12 THE WITNESS: Yes.

13 BY MR. PLACITELLA:

14 Q. Okay, how much?

15 A. I believe youre asking me how much

16 asbestos would be — how much the person sanding

17 or working with joint compound would be exposed to

18 during a day?

19 Q. Uh-huh.

20 A. And the studies suggest that the

21 eight-hour, time-weighted average would be a

22 couple of fibers per cc, but that was using the

23 phase contrast light microscopy method, which

24 counts all fibers, not just asbestos fibers. And

25 there is likely some non-asbestos fibers that

1 would have been in that analysis. So the actual

2 eight-hour, time-weighted average would probably

3 be even less than a couple of fibers per cc.

4 Q. Well, thats not necessarily true,

5 right, because the phase contrast microscope

6 doesnt count very thin fibers, right?

7 A. That is correct.

8 Q. And its thought in industrial

9 hygiene circles or in toxicology circles, that

10 its the long, thin fibers that are the most

11 toxic, right?

12 A. That is correct.

13 Q. So the longest, thinnest fibers are

14 not counted by phase contrast microscopy, right?

15 A. That is true. However, Ive seen –

16 and in fact, Ive done some studies myself doing

17 both phase contrast and electron microscopy. And

18 while what youre saying is correct, in my

19 experience, though, light microscopy gets the

20 majority. It may not get all, but its a fair

21 approximation of the total exposure. And, again,

22 because it counts all fibers, its usually

23 overestimating.

24 Q. Well, did you ever add back in the

25 ones that are missed?

1 A. Ive never added them in. Im just

2 saying that the light microscopy doesnt get them

3 all, but usually its a good approximation.

4 Q. All right. So when you said before

5 that it counts all fibers, you werent exactly

6 correct, true?

7 A. Thats correct, and I also should

8 have amended that to say it doesnt count fibers

9 shorter then five microns in length.

10 Q. Okay. So, where does a general

11 contractor get his directions from when he has to

12 do work?

13 A. I believe they are told to install

14 something or theres a contract written that says

15 they will build something. And I assume their

16 marching orders comes from some contract.

17 Q. Okay. From the owner?

18 MR. MACHI: Objection.

19 MR. DESTRIBATS: Objection.

20 THE WITNESS: I assume theres a

21 contract entered into between the owner and the

22 contractor.

23 BY MR. PLACITELLA:

24 Q. Okay. Do you have an understanding

25 of what the useful life is for asbestos-containing

1 pipe covering once its installed, whats the

2 intended use for life?

3 MS. BANEZ: Objection.

4 THE WITNESS: I dont know what the

5 manufacturers necessarily say. Its my experience

6 it probably depends on the conditions that exist

7 in the facility.

8 BY MR. PLACITELLA:

9 Q. Well, whats the shortest duration

10 of time that youre aware of, assuming theres not

11 damage to the product as to what the intended life

12 span is for pipe covering, asbestos pipe covering

13 in a facility?

14 MS. BANEZ: Objection.

15 THE WITNESS: Again, I dont know

16 the answer, but Im pretty sure its years.

17 BY MR. PLACITELLA:

18 Q. Decades?

19 MS. BANEZ: Objection.

20 THE WITNESS: It could be.

21 BY MR. PLACITELLA:

22 Q. What about asbestos-containing

23 cement on the joints, whats the intended useful

24 life for that absent some problem that requires it

25 to be removed?

1 MS. BANEZ: Objection.

2 THE WITNESS: Again, I dont know

3 the specific life span.

4 BY MR. PLACITELLA:

5 Q. What about ceiling tile?

6 A. You have water leakage, you end up

7 replacing them.

8 Q. Absent water leakage, how long would

9 they last?

10 A. Years and years.

11 Q. Okay. Now, what trade typically –

12 in Page 4 of your report, you talk about mud joint

13 packing. First paragraph, Page 4, do you see

14 that?

15 A. Yes.

16 Q. What are you talking about? Are you

17 talking about the stuff that goes on the elbows

18 for pipe insulation?

19 A. Yes.

20 Q. What trade would normally install

21 that?

22 A. The insulator.

23 Q. And how would that be applied? Have

24 you ever seen it applied? Well, let me ask the

25 question this way, does it come dry and have to be

1 mixed?

2 MS. BANEZ: Objection.

3 MR. DESTRIBATS: Is that what youre

4 looking at — Im sorry — is that what youre

5 looking at, that was found in M-10?

6 MR. PLACITELLA: Yes.

7 THE WITNESS: I have certainly seen

8 it come dry, and its mixed with water and then

9 applied.

10 BY MR. PLACITELLA:

11 Q. All right. And have you ever seen

12 it dumped into a tub?

13 A. If Ive actually seen it? I dont

14 know if Ive actually seen it done. Ive heard

15 descriptions of it.

16 Q. Would you agree with me that that

17 would generate a significant amount of asbestos

18 fiber, the dumping of asbestos-containing

19 insulation cement into a tub?

20 MS. BANEZ: Objection.

21 THE WITNESS: I believe that when it

22 was poured, you would see some visible dust. The

23 resulting exposure, it would be very short-lived.

24 BY MR. PLACITELLA:

25 Q. Well, what happens to that dust once

1 its in the air?

2 A. It moves away and gets diluted and

3 quickly dissipates.

4 Q. Assuming that theres ventilation?

5 A. Just a general air movement in a

6 construction site.

7 Q. Okay.

8 A. It would tend to go down fairly

9 quickly.

10 Q. Okay. Now, on Page 6 of your

11 report, down toward the bottom you say, There was

12 no testimony that he could have been exposed to a

13 dose of asbestos that would increase his risk of

14 developing mesothelioma from being in the vicinity

15 of others who handled ACMs while he worked at the

16 Allied Signal Facility in Morristown from 60 to

17 62.

18 Do you see that?

19 A. Yes.

20 Q. Whats the basis for that?

21 A. The basis is that he talks about

22 seeing others who were installing insulation, but

23 hes not saying he was right next to them. Hes

24 not saying how often that occurred. And while

25 hes saying that they were handling

1 asbestos-containing materials, its not even clear

2 that they were always handling asbestos-containing

3 materials. But certainly, its possible they were

4 handling some. And the vast majority of that, if

5 not all, at least at Allied, would have been

6 chrysotile, at least when he was in some area.

7 And so, if you put those things

8 together, he could not have been exposed to a dose

9 that could have increased his risk of getting

10 mesothelioma.

11 Q. You agree with me that

12 asbestos-containing products were installed at the

13 Allied facility during the time that Mr. DeMayo

14 was there?

15 MR. DESTRIBATS: Objection.

16 MS. BANEZ: Objection.

17 THE WITNESS: Well, the only way we

18 know that there was asbestos-containing products

19 in that building is from some subsequent bulk

20 asbestos surveys that were done in those

21 buildings. And that was done, I think, in the

22 later 80s. And so, there were renovations that

23 were done in these buildings, I believe, before,

24 in 1972, 73, 74, which is when most

25 asbestos-containing materials were no longer used

1 in construction.

2 I think 72 to 73 was when

3 fireproofing was outlawed. I think it was 75

4 around there when pipe insulation.

5 So there certainly could have been

6 renovations done after Mr. DeMayo was there that

7 might account for some or all of the asbestos that

8 was found in the later surveys.

9 BY MR. PLACITELLA:

10 Q. Would you agree with me, its more

11 likely than not that if there was asbestos up

12 there, they replaced it with asbestos before 1972?

13 MR. MACHI: Objection.

14 MR. DESTRIBATS: Objection.

15 THE WITNESS: You mean during the

16 renovation after Mr. –

17 BY MR. PLACITELLA:

18 Q. Yeah.

19 A. Well, I dont know if there was

20 asbestos there initially, but Im just saying that

21 up until around, say around 72 to 75, if there

22 were renovations, they could have replaced — put

23 asbestos insulation in there.

24 Q. Are you saying that there were

25 non-asbestos-containing products available in the

100

1 early 1960s that Allied could have used on

2 those — in those facilities?

3 MR. DESTRIBATS: Objection.

4 THE WITNESS: I just know that not

5 all insulation products were asbestos-containing.

6 BY MR. PLACITELLA:

7 Q. I know, but you looked at the

8 materials. Is it your testimony that there were

9 available substitutes in the early 1960s where

10 the asbestos was used based upon the surveys that

11 you looked at?

12 MR. DESTRIBATS: Okay.

13 THE WITNESS: When you say I looked

14 at the materials –

15 BY MR. PLACITELLA:

16 Q. You said you looked –

17 A. — if it was in there at a later

18 time period?

19 Q. Right.

20 A. All Im saying is, is that there

21 were non-asbestos insulation materials available

22 along with asbestos-containing insulation

23 materials.

24 Q. So there was a choice to be made in

25 the early 60s as to whether to use asbestos or

101

1 not?

2 A. Well, there were some situations.

3 Lets see, I dont know exactly the requirements

4 of where asbestos would have been specified or

5 non-asbestos.

6 Q. Were you shown any of the testimony

7 that people actually did the insulation work there

8 that indicated that they put asbestos in, in the

9 early 1960s?

10 A. No.

11 Q. Would you have wanted to have seen

12 that before you had rendered this kind of opinion?

13 A. Well, actually, from the work that

14 Mr. DeMayo did at Allied, I assumed that I took a

15 worst case condition, that there was asbestos

16 insulation being installed while he was working

17 there. And my opinion that he still would not

18 have been exposed to harmful levels was based on

19 that worst case condition.

20 Q. Would you have wanted to see the

21 actual testimony from the guy who put it in that

22 said, I put in asbestos, before you rendered

23 this opinion?

24 MR. DESTRIBATS: Objection.

25 MS. BANEZ: Objection.

102

1 THE WITNESS: Well, again, I assumed

2 it was asbestos. I was still able to come to a

3 conclusion that it was not a problem.

4 BY MR. PLACITELLA:

5 Q. Okay. All right. Would your

6 opinions concerning Mr. DeMayos exposure at

7 Allied be any different if he handled or

8 fabricated asbestos-containing materials while he

9 was there?

10 A. Well, I would have to know what the

11 circumstances were.

12 Q. Well, you say here on Page 7 that

13 there is no testimony that Mr. DeMayo handled the

14 materials or was around others handling those

15 materials in a manner where he may have been

16 exposed to harmful levels of asbestos.

17 And my question to you is, would

18 your opinion be different if you had information

19 that Mr. DeMayo actually handled and fabricated

20 asbestos-containing products while at Allied?

21 A. Well, I would have to look at that

22 information and then make a decision at that time

23 whether there could have been a risk.

24 Q. Well, suppose it was that he was

25 drilling asbestos-containing doors at Allied,

103

1 would that have mattered?

2 A. No.

3 Q. Would it have mattered that he was

4 standing right next to somebody who was putting in

5 asbestos-containing joint compound?

6 A. I mean how long was he standing next

7 to the person?

8 Q. Any amount of time, sir.

9 A. Any amount, like 40 years?

10 Q. Yeah — well, no. During the 60 to

11 62 time frame, sir.

12 A. No, thats not enough time.

13 Q. If he stood next to the insulator,

14 sir, and he took the asbestos containing cement

15 and he shoved it in his face and he breathed it in

16 and he held it there, would that have increased

17 his risk of mesothelioma, to your knowledge?

18 MR. DESTRIBATS: Objection.

19 MS. BANEZ: Objection.

20 THE WITNESS: No, because he would

21 have suffocated if it was –

22 BY MR. PLACITELLA:

23 Q. Okay. Is there any amount of

24 exposure that could have happened to Mr. DeMayo at

25 Allied that would convince you that he had an

104

1 increased risk for mesothelioma?

2 A. Well, there probably is.

3 Q. Okay. Now, how many tiles did

4 Mr. DeMayo cut while he was at Allied?

5 MR. DESTRIBATS: Objection. Ceiling

6 or floor tiles?

7 MR. PLACITELLA: Ceiling tiles.

8 THE WITNESS: Theres not an exact

9 number given. However, you only cut a limited

10 number because, if you look around at most

11 ceilings, most of them are installed intact where

12 you get the light fixtures or obstacles at the

13 end. So youre generally just cutting a small

14 percentage of the entire ceiling fixtures youre

15 putting in. And he spent most of his time

16 probably hanging the support structures and he did

17 a whole bunch of other things. So I concluded

18 that the number of ceiling tiles cut would have

19 been limited.

20 BY MR. PLACITELLA:

21 Q. How many asbestos-containing ceiling

22 tiles would Mr. DeMayo have to have cut in order

23 for you to conclude that he had an increased risk

24 of developing mesothelioma as a result of that

25 activity?

105

1 MR. DESTRIBATS: At Allied?

2 MR. PLACITELLA: Yes, at Allied.

3 THE WITNESS: Well, were dealing

4 with chrysotile, so we have to have this huge

5 exposure dose to increase his risk if chrysotile

6 has the potential. And cutting ceiling tile for

7 the two, two and a half years he was there, I

8 dont care if he was doing it all day long, it

9 just wouldnt have been enough.

10 BY MR. PLACITELLA:

11 Q. So if he cut asbestos-containing

12 ceiling tiles each day, every day, all day long

13 the entire time he was here, in your opinion,

14 thats still not enough to increase his risk of

15 mesothelioma?

16 MR. DESTRIBATS: The entire time he

17 was there?

18 MR. PLACITELLA: Yeah.

19 THE WITNESS: For two, two and a

20 half years?

21 BY MR. PLACITELLA:

22 Q. And if he did that for 20 years,

23 thats still not enough to increase his risk for

24 mesothelioma, right? Thats your opinion.

25 A. No, Im not saying for 20. I would

106

1 have to think about the potential exposures. But

2 for two and a half years, no.

3 Q. Well, where does it cut off, sir?

4 A. I would have to start making some

5 estimates of what I thought his dose was, and then

6 multiply it times the years to get the fiber dose

7 and then attempt to look at –

8 Q. Well, give me an estimate, how many

9 years?

10 A. Im saying, I would have to do some

11 calculations.

12 Q. 10 years?

13 A. I would have to think about it. Im

14 not prepared to –

15 Q. 20 years?

16 A. Im not prepared to give you a

17 number off the top of my head.

18 Q. Is there, at some point in your

19 mind, sir, that he would have cut, if he did it

20 all day, every day for his whole life, that would

21 have been enough?

22 A. I would have to do some

23 calculations, but possibly it was.

24 Q. Okay. So how do you separate out

25 what he would have done at Allied from his

107

1 cumulative risk in determining whether his total

2 risk from cutting ceiling tiles contributed to his

3 mesothelioma?

4 A. Okay. So what youre asking me is

5 maybe what he did at Allied wasnt enough, but it

6 contributed if you add everything else into it?

7 Q. Right.

8 A. And my evaluation based on the time

9 period he was at Allied and based on what he did

10 and the fiber type, that exposure dose was so low,

11 compared to what would have been required to

12 increase his risk of getting mesothelioma that it

13 was not the straw that broke the camels back. By

14 itself it is insignificant.

15 Q. I wouldnt ask if it was a straw,

16 sir. I said, could you separate it out and say it

17 had no role?

18 A. And the answer is yes.

19 Q. Okay. Now, you talk in your report

20 on Page 7 about studies you did at the EPA

21 concerning installation of floor tiles. Do you

22 see that?

23 A. Yes.

24 Q. Okay. What was done to make — to

25 protect the people that were doing that operation?

108

1 A. I believe that the contractor had

2 them wear respirators, even though we told them it

3 wasnt necessary because he said that he wanted –

4 he didnt want his employees to — if they did

5 asbestos remediation work, that he wanted them to

6 stay in the habit of wearing respirators.

7 Q. Well, let me ask you this question.

8 If I go into a — if Im doing asbestos removal

9 and I go into a facility like Allied, and its all

10 chrysotile, everything, and I spend a month in

11 there just ripping everything out and down, and I

12 dont wear any respiratory protection, none, is it

13 your testimony that I have no risk for developing

14 mesothelioma as a result of that exposure?

15 A. Okay. So youre saying its all

16 chrysotile?

17 Q. All chrysotile.

18 A. And youre doing it for a month?

19 Q. Right. I rip every last piece of

20 asbestos out of that facility and Im there the

21 entire time and theres stuff falling on the

22 ground and you can see dust and I dont wear a

23 mask and its all chrysotile, is it your opinion

24 that that kind of exposure is still not enough to

25 increase the risk for mesothelioma?

109

1 A. Okay. So we would have to start

2 looking at each event and attempting to determine

3 what his exposure was. Ive done a lot of

4 asbestos remediations. And while the majority of

5 the exposures are just a couple of fibers per cc,

6 Ive been in some situations where they were

7 ripping down ceilings where the concentration got

8 to a hundred fibers per cc.

9 So you sound like youre describing

10 a situation at the 100 fiber per cc range. So if

11 we take that 100 fiber per cc and say it was all

12 day and for a month. So 100 times one-twelfth

13 would equal eight fiber years as a total dose.

14 And eight fiber years is not enough chrysotile to

15 increase the risk of getting mesothelioma, but

16 eight fiber years is enough of a dose that added

17 to perhaps many, many other exposures might

18 increase the risk. And again, we dont know

19 exactly what the total dose is for chrysotile, if

20 it has the capability of causing mesothelioma at

21 all.

22 Q. Well, tell me how low you go in your

23 continuum. You say eight fiber years might be

24 enough to increase the cumulative dose. Is four

25 enough?

110

1 A. Possible.

2 Q. How about two, is that enough?

3 A. Well, see now, youre starting to

4 move down the line and eventually youre going to

5 reach a point where its not going to have any

6 effect whatsoever. And part of the problem with

7 getting a definite number is we dont know the

8 total dose either, if any total dose can increase

9 the risk of getting chrysotile. So theres no

10 point in moving the continuum down because youre

11 into an area now where I cant pick out an exact

12 number.

13 Q. Well, there is a point. And youre

14 an industrial hygienist; your job is to protect

15 workers, right?

16 A. It is.

17 Q. So if Im just going to go into

18 Allied for a week and rip everything down and its

19 all chrysotile, do you tell me dont wear a

20 respirator?

21 A. Okay. Now youve moved it to a

22 week.

23 Q. Okay.

24 A. So youve further reduced the

25 number. So you were at four weeks, now youre at

111

1 a week, so youre about two fiber years, something

2 like that. And in industrial hygiene, we

3 sometimes do things for extra protection, not to

4 move into an area where youre just attempting to

5 protect the employee.

6 So in that situation, while I would

7 suspect there would be no increased risk under

8 almost any condition, I wouldnt know with 100

9 percent certainty, so I would recommend that they

10 be protected.

11 Q. Well, at what point do you recommend

12 they dont need to be protected, sir?

13 A. Well, if I saw the exposure dose to

14 chrysotile would, say, be under one fiber year, I

15 would probably say that is getting to be so low, I

16 dont know even know if I require any protection.

17 Q. Okay. So if Im in there for a week

18 and my job is just to knock down the asbestos, get

19 it all out, take it off the pipes, whatever is

20 required, and thats all I do for a week, is that

21 enough for you to want to protect the worker?

22 A. Well, you havent told me, is he

23 going to be exposed to less than one fiber year of

24 just chrysotile?

25 Q. Just chrysotile, sir, just

112

1 chrysotile.

2 A. And all this dramatic stuff youre

3 saying hes doing is still going to result in

4 exposure of less than one fiber year?

5 Q. No, Im asking you.

6 A. No, you were asking me –

7 Q. I dont know what a one fiber year

8 is, sir. I want to know what youre going to do

9 to protect the worker.

10 A. Well, you see –

11 Q. Let me ask you a question. Ill

12 withdraw the last question.

13 If I go into Allied Signal and my

14 job is to knock all the asbestos off all the pipes

15 for a week, do you recommend that I wear a mask?

16 A. Yes.

17 Q. Why?

18 A. Because I cannot know –

19 Q. And its only chrysotile.

20 A. Right. And I will still recommend

21 that you wear a respirator because your

22 description of what youre doing has the potential

23 for generating a very high exposure. I do not

24 know what else youre doing for the rest of your

25 life, and so I will do — ensure that no risk

113

1 would occur and I would recommend wearing a

2 respirator.

3 Q. So that one week has the potential

4 to add to the cumulative dose, that would increase

5 my risk of mesothelioma depending on what Im

6 doing for the rest of my life as a worker?

7 MR. DESTRIBATS: Objection.

8 MR. MACHI: Objection.

9 BY MR. PLACITELLA:

10 Q. True?

11 A. Now, you said mesothelioma. I was

12 actually thinking in my mind of protecting against

13 asbestosis, possibly lung cancer as well as

14 mesothelioma.

15 Q. No, Im talking about mesothelioma,

16 sir.

17 A. So as an industrial hygienist, I

18 cant ignore the other potential diseases.

19 Q. Okay. You say that Mr. DeMayo was

20 some distance from where sanding was done. How

21 far away was he?

22 A. Well, I dont know how far away he

23 was, but my understanding is when someone is

24 installing the drywall, you know, you have to put

25 several coats on of the joint compound, theyre

114

1 not going to move — theyre usually — the

2 installer is sufficiently far ahead so that they

3 dont bump into each other, so I dont believe

4 theyre right on top of each other.

5 Q. How far away was he? You say some

6 distance.

7 A. Some distance. I dont know exact

8 distance. Some days it will be more, sometimes

9 less. I would assume sometimes theyre in

10 different rooms.

11 Q. Okay. You say on Page 8, your

12 opinion in this case, sir, is that Allied had no

13 responsibility whatsoever to Mr. DeMayo for

14 maintaining a healthful workplace, right, thats

15 your opinion?

16 A. Let me see. Where did I say that?

17 Q. Im asking you. Im gleaning from

18 your entire report.

19 A. Well, let me see what I said. Okay.

20 So I dont see where I said what youre saying.

21 Q. Did Allied Signal have a

22 responsibility to provide Mr. DeMayo a safe and

23 healthy workplace, in your opinion, as an

24 industrial hygienist?

25 A. Its my opinion that the premises

115

1 owner would have a responsibility to tell the

2 employer about any hazards that the employers

3 employees would be subjected to that the employer

4 would not be aware of without having been provided

5 that information.

6 Q. Thank you. Now, you say that Allied

7 Signal did testing about exposure levels. What

8 testing are you referring to?

9 A. Im referring to taking air samples

10 of employees who were working with and around

11 asbestos-containing insulation in their plants.

12 Q. When was that?

13 A. I believe it was around the time

14 period of the OSHA asbestos standard.

15 Q. And what did the sampling data show?

16 A. It showed that they were well in

17 compliance with the OSHA asbestos standard.

18 Q. What do you mean well in

19 compliance, what does that mean?

20 A. That the exposures were well below

21 the OSHA limit.

22 Q. Well, was there any engineering in

23 place to keep the exposures low?

24 A. No, I dont believe there were.

25 Q. And you say that youve taken over a

116

1 thousand bulk samples?

2 A. Yes.

3 Q. When you take bulk samples, do you

4 wear a mask or respirator?

5 A. No. And a mask is a respirator.

6 Q. Oh, let me ask you this, do you know

7 what a 3M mask is, a paper mask?

8 A. Are you talking about a filtering

9 face piece disposable respirator?

10 Q. Uh-huh, yeah.

11 A. Yes.

12 Q. Is that adequate to prevent the

13 inhalation of asbestos fibers –

14 A. Now, youre dealing –

15 MR. DESTRIBATS: Objection.

16 BY MR. PLACITELLA:

17 Q. — in your opinion?

18 A. Youre dealing with what is the

19 filter media. There are some situations where,

20 yes, it would be adequate and some situations

21 where it would not.

22 Q. Did you see the mask that was

23 described by Mr. DeMayo that he was given?

24 A. No.

25 Q. You didnt read his description of a

117

1 mask?

2 A. I dont remember.

3 Q. Do you know what a 3M paper mask is?

4 A. Are you talking about the 8710?

5 Q. Uh-huh, the 8710, exactly.

6 A. Im familiar with the 8710.

7 Q. Does that prevent the inhalation of

8 the asbestos fibers?

9 A. I believe that was certified by

10 NIOSH with the protection factor of 10, and

11 initially that was 30CFR11. The certification

12 requirement said that that was adequate for using

13 for protection against pneumoconiosis dust,

14 including asbestos, although later NIOSH took back

15 the recommendation for use of that for protection

16 against asbestos, but that was much later than

17 when Mr. DeMayo worked at Allied.

18 Q. So, in your opinion, does the 8710

19 prevent the inhalation of asbestos fibers?

20 A. Again, you have to look at the

21 protection factors and the specific situation and

22 how well he wore his respirator, how well it

23 fitted his face piece, his face.

24 Q. Okay. Youre aware that talc is

25 generally considered to be — have tremolite as a

118

1 constituent component?

2 A. There are some talcs that have

3 tremolite as a contaminant and some of that talc

4 is asbestiform and some is not asbestiform.

5 Q. Are you aware that there was

6 asbestiform talc in joint compound?

7 MR. DESTRIBATS: Objection.

8 THE WITNESS: I dont remember.

9 BY MR. PLACITELLA:

10 Q. You dont know?

11 A. At this moment, I dont know.

12 Q. Would you agree with me if there was

13 asbestiform talc in joint compound, that to say

14 that that joint compound was asbestos-free would

15 be a falsehood?

16 MR. DESTRIBATS: Objection.

17 UNIDENTIFIED SPEAKER: Objection.

18 THE WITNESS: If it had asbestiform

19 tremolite, then by definition it would have

20 asbestiform tremolite and would not be

21 asbestos-free.

22 BY MR. PLACITELLA:

23 Q. So if Georgia Pacific represented to

24 the world that its product did not contain

25 asbestos and it actually had asbestiform talc in

119

1 it, as described by its supplier, would you agree

2 that that would be a misrepresentation?

3 UNIDENTIFIED SPEAKER: Objection.

4 THE WITNESS: Well, if were talking

5 about there are certain amounts of asbestos where

6 if its below a certain level, OSHA does not

7 require calling it — or EPA doesnt call it an

8 asbestos-containing material.

9 BY MR. PLACITELLA:

10 Q. That wasnt my question. My

11 question is, if a representation is made that a

12 product is asbestos-free and it has asbestiform

13 talc in it, is that a proper representation, in

14 your opinion?

15 A. Well, again, in the industrial

16 hygiene community, if the asbestos is below a

17 certain level, its not considered to be an

18 asbestos-containing product.

19 Q. Okay. Whats the level?

20 A. For carcinogens, its point one

21 percent.

22 Q. Okay. Now, you, in your Page 12,

23 when you talk about dilution of fibers –

24 A. Yes.

25 Q. — and youre talking about studies

120

1 done by Mount Sinai, do you see that?

2 A. Yes.

3 Q. Youre aware that those studies from

4 Mount Sinai showed levels of asbestos fibers in

5 rooms adjacent to where the joint compound was

6 installed? Are you aware of those studies, sir?

7 A. I know that they did some studies on

8 joint compounds. I mean it wouldnt surprise me

9 that they found some fibers in another room.

10 Q. Okay. Now, you talk on Page 13 of

11 the report about Fleischer-Drinker. Do you

12 remember that?

13 A. Yes.

14 Q. People — there were insulators in

15 Fleischer-Drinker who were sick from asbestos,

16 werent there?

17 A. I believe they found three.

18 Q. And you talked about the study by

19 Wagner in 1960. Do you see that?

20 A. Yes.

21 Q. Okay. They did not distinguish

22 between crocidolite and chrysotile in that study,

23 did they?

24 A. I thought they did.

25 Q. You sure? They didnt discuss

121

1 chrysotile causing mesothelioma in that study,

2 sir?

3 A. My recollection was they were

4 talking about crocidolite.

5 Q. You dont remember anything in there

6 about them quoting other studies showing that

7 chrysotile caused mesothelioma in Canadian mines;

8 you dont remember that?

9 A. I would have to refresh my memory.

10 Q. The authors in that study, sir, most

11 of the people who got mesothelioma in the Wagner

12 study didnt have occupational exposures, true?

13 A. Yes. My understanding is they were

14 playing in piles of crocidolite asbestos.

15 Q. Well, thats not the only thing that

16 happened, right, sir? They also, people were just

17 living along the roads where the asbestos was

18 being transported got mesothelioma, right?

19 A. I dont know if its clear that that

20 was their only exposure.

21 Q. Well, you remember the chart from

22 that study, sir?

23 A. I would have to review it and

24 refresh my memory.

25 Q. What percentage of the people in the

122

1 Wagner study, sir, had occupational exposure to

2 asbestos that got mesothelioma?

3 A. I dont remember.

4 Q. You know its less than half, dont

5 you?

6 A. I said, I dont remember.

7 Q. Now, you agree with me, sir, that

8 both NIOSH and OSHA both recognize that the

9 standards they set for exposure do not prevent

10 cancer?

11 A. What they said was, is that they are

12 not completely protective.

13 Q. They do not prevent cancer, thats

14 what it says?

15 A. Wait, wait –

16 Q. Okay. Now, sir –

17 A. Wait, wait, wait. Which OSHA

18 standard are you referring, sir?

19 Q. Well, you know what, Ill save that

20 for trial. Forget it. Well save that for trial.

21 Im trying to stick to my promise and Im not

22 doing a good job.

23 A. I noticed that.

24 Q. Well, maybe youve got to be

25 responsive and then Id be slower — faster.

123

1 Did Allied tell you, as part of your

2 research, any of the information that was conveyed

3 to it about the dangers of asbestos prior to the

4 1960?

5 MR. DESTRIBATS: Objection.

6 THE WITNESS: Im not aware of being

7 specifically told what was conveyed to Allied

8 before 1960.

9 BY MR. PLACITELLA:

10 Q. Do you have any idea what was

11 conveyed to Allied?

12 A. Im assuming that if they had their

13 industrial hygiene department, they would have

14 known what the occupational health community knew

15 about the hazards of asbestos.

16 Q. You also talked about the

17 Braun-Truan Study as evidence that there wasnt a

18 general recognition that asbestos could cause

19 cancer; do you remember that?

20 A. Yes.

21 Q. And that study was published by the

22 Industrial Hygiene Foundation, correct?

23 A. I believe Dr. Braun worked for and

24 was the President of the Industrial Health

25 Foundation.

124

1 Q. Correct. And youre aware, are you

2 not, that Allied Signal was a member of the

3 Industrial Hygiene Foundation during the time that

4 that study was published, correct?

5 A. I think I was told that.

6 Q. Okay. And how were you told that?

7 A. By the attorneys.

8 Q. Were you shown by the lawyers the

9 true result of the Braun-Truan Study, which showed

10 that asbestos does cause cancer that never made it

11 into the Industrial Hygiene Foundation article?

12 A. What I understand is that the Braun

13 study was found to be discredited, what was

14 published after a certain time period, but that

15 when it was published, it was accepted.

16 Q. But it was known to the Industrial

17 Hygiene Foundation that, in fact, they had come to

18 conclusions that werent put in the study,

19 correct?

20 A. I dont know the mechanics of

21 everything that was known and not known. I dont

22 know what the membership of the Industrial Health

23 Foundation knew, so I cant comment on the

24 specifics of what actually went on and who knew

25 what and when.

125

1 Q. Okay. So when you talked about the

2 Braun-Truan Study as a basis for your opinion,

3 one, you dont say that it was discredited, right?

4 A. Well, at the time that it was

5 published and for a certain time thereafter, it

6 was considered to be correct, and therefore, when

7 one is considering what the state-of-the-art or

8 what the occupational health community knew about

9 the health hazards of asbestos, you had to include

10 that study in the total knowledge. It would not

11 be — just because something down the road was

12 identified that would discredit some of what was

13 said there doesnt mean at the time it wasnt

14 being used.

15 Q. How about if the study was

16 fraudulent, would that have mattered?

17 MR. DESTRIBATS: Objection.

18 THE WITNESS: Well, certainly it

19 would matter in terms of the fact that it wasnt

20 correct, but in terms of what the occupational

21 health community would have known and how people

22 would have responded, they still would have

23 responded the same way.

24 BY MR. PLACITELLA:

25 Q. Well debate that sometime in the

126

1 future. You have not seen the real results from

2 1957 for the Braun-Truan Study, the unpublished

3 results as you sit here today, correct?

4 MR. DESTRIBATS: Objection.

5 THE WITNESS: Correct. If they

6 exist. I dont know.

7 BY MR. PLACITELLA:

8 Q. Well show them to you at trial,

9 okay?

10 A. Okay.

11 Q. Now, you indicate on the bottom of

12 Page 13, Starting in at least 1971, Allied became

13 aware of what, more studies, new studies, whats

14 your word?

15 A. Aware that studies were suggesting

16 that asbestos was more toxic than previously

17 thought.

18 Q. Yeah, what are you referring to

19 there?

20 A. Well, there was studies being put

21 out in more and more discussion. I mean after

22 Selikoff put out his results of his studies in the

23 mid 60s, it kind of started an avalanche of

24 people investigating the health hazards of

25 asbestos.

127

1 In fact, in 1967 when I was taking

2 my masters degree in the laboratory next, we were

3 conducting animal studies on exposing animals to

4 asbestos to learn more about the health hazards

5 because we didnt know that much back then.

6 Q. Yeah, but you say Allied became

7 aware. What do you know about what Allied became

8 aware of?

9 A. Im just assuming they were keeping

10 up with the medical literature, the occupational

11 health literature.

12 Q. So you dont have any specific

13 information, thats just your supposition?

14 A. Yes.

15 Q. Do you remember the conference by

16 Dr. Selikoff in 1963?

17 A. I didnt know it was that early.

18 Q. Yeah, and it was published in 64 –

19 A. Oh, yeah.

20 Q. — do you remember that?

21 A. You know, I dont know the exact

22 years, but around there, yes.

23 Q. Are you aware that Allied had

24 representatives at that conference?

25 MR. DESTRIBATS: Objection.

128

1 THE WITNESS: I didnt know that.

2 BY MR. PLACITELLA:

3 Q. You dont know one way or the other?

4 A. I dont know.

5 Q. Okay. Would that have any bearing

6 on your opinion?

7 MR. DESTRIBATS: Objection.

8 THE WITNESS: Well, first of all,

9 Mr. DeMayo worked at Allied from 60 to around

10 63.

11 BY MR. PLACITELLA:

12 Q. Im just asking if it had any

13 bearing on your opinion?

14 A. Well, no, because — for a couple of

15 reasons. One is because Mr. DeMayo worked at

16 Allied from 60 to 62. And number two, just

17 because Dr. Selikoff reports some findings doesnt

18 necessarily mean at that time he is correct. He

19 didnt take smoking into consideration. And what

20 he did was to alert the occupational health

21 community. And that was good and it started more

22 research, but it took many more years after that

23 before asbestos was identified as a confirmed

24 human carcinogen.

25 Q. By the way, do you believe theres,

129

1 as an industrial hygienist, that if you learned

2 that somebody was exposed to a carcinogen in your

3 workplace, that you have an obligation to go tell

4 them later on that thats what happened so they

5 know?

6 MR. DESTRIBATS: Objection.

7 THE WITNESS: I think you have to

8 know more about the exposure, the carcinogen, the

9 situation, whether alerting them would have any

10 response that could benefit them, I think theres

11 a number of issues involved in making a

12 determination of whether that should be done.

13 BY MR. PLACITELLA:

14 Q. So what they dont know wont hurt

15 them?

16 A. Thats not what I said.

17 MR. DESTRIBATS: Objection.

18 MR. MACHI: Objection.

19 MR. PLACITELLA: Why dont we take

20 five minutes so I can look through these materials

21 and see whats here.

22 (Recess at 3:28 p.m.)

23 (Resumed at 3:41 p.m.)

24 BY MR. PLACITELLA:

25 Q. I just have a few questions. First,

130

1 I did not see, in this group of materials, the

2 Allied Signal documents that you referred to in

3 your report?

4 A. Which ones are you talking about?

5 Q. Theyre documents that you were

6 referring to, a report that you reviewed that were

7 Allied Signal documents about testing that they

8 did?

9 MR. DESTRIBATS: On Page 2?

10 MR. PLACITELLA: Yeah.

11 BY MR. PLACITELLA:

12 Q. Can you supply me with all the

13 Allied Signal documents, please, that you referred

14 to?

15 A. Wait, arent they all the testing

16 that was done in the facility?

17 Q. No, Im talking about the testing

18 that was — oh, is this it, is this what youre

19 talking about?

20 A. Yeah.

21 Q. Nothing else?

22 A. No, just the documents talking about

23 what –

24 Q. Okay. Just this, okay. You said

25 that there were Allied Signal documents talking

131

1 about exposure levels. Where is that?

2 A. No, just the — where do I say that?

3 Q. You said and you testified that

4 there were Allied Signal documents that talked

5 about what exposure levels were to people who were

6 handling and using asbestos.

7 A. Oh, yes. I have some of that, but I

8 didnt use it for this case.

9 Q. Well, I would like, sir, all — you

10 to provide me all of the Allied Signal documents

11 that you have relating to asbestos, okay. You can

12 give it to your lawyer and he can give it to me.

13 A. Okay.

14 Q. Okay. Now –

15 A. Assuming I still have them.

16 MS. BANEZ: I join in that request.

17 BY MR. PLACITELLA:

18 Q. Now, you studied industrial hygiene,

19 I think you said in the mid to late 60s?

20 A. I started in 1966, finished 1967,

21 68.

22 Q. Was there a text that you used

23 primarily in your studies of industrial hygiene?

24 A. Well, I think the, what is sometimes

25 referred to as the industrial hygiene bible as

132

1 Pattys Industrial Hygiene and Toxicology.

2 Q. And is that what you used?

3 A. I did use it, yeah.

4 Q. Okay. Any other texts that you

5 relied upon and learned from on industrial

6 hygiene?

7 A. At that time I think that was the

8 main text.

9 Q. Did Pattys refer in any way to

10 asbestos?

11 A. Oh, Im sure they would have had a

12 section on asbestos.

13 Q. Okay. Did you have any professors

14 that were authorities on asbestos-related disease

15 while you were in school?

16 A. Yes.

17 Q. Who?

18 A. Dr. Vorwald and Dr. Andrew — I

19 cant believe the last name isnt coming to me –

20 Reeves.

21 Q. And they were your professors?

22 A. I dont think — Dr. Vorwald, he was

23 the head of the department. I dont think he

24 actually taught a course. He might have taught a

25 lecture, but Dr. Reeves was the professor for the

133

1 toxicology class.

2 Q. Did Dr. Vorwald ever in his class

3 talk about the studies that he did on asbestos at

4 the Saranac Laboratory?

5 A. No.

6 Q. Was that information ever made

7 available to you?

8 A. I never saw any of the information

9 from him.

10 Q. What do you mean by from him?

11 A. I think I have seen some information

12 generated by Saranac Laboratories, but it wasnt

13 through him. It was just through things Ive done

14 in my life.

15 Q. Are you aware that Dr. Vorwald

16 conducted studies showing that asbestos can cause

17 cancer in animals?

18 A. My understanding is there were some

19 studies done on animals. They did see some

20 excesses of cancer, but there were also, I think,

21 some of the rat models, theres a fairly high

22 normal incidence of cancer. And I dont know all

23 of the results of all their studies, but I know

24 that there were some concerns regarding whether

25 there was significant excess caused from exposure

134

1 to cancer or whether it was the animal model.

2 Q. And youre aware those studies took

3 place in the 1940s, correct?

4 A. That some did, yes.

5 Q. Okay. And those studies also

6 involved an asbestos insulation product versus raw

7 asbestos, are you aware of that?

8 A. I dont know all the — I dont

9 remember exactly how they were, the animals were

10 exposed.

11 MR. PLACITELLA: Give me one minute

12 and well go through my — this is what I would

13 like to do, by the way, while Im doing this, if

14 we could mark this as Rabinovitz-2. Excuse me, I

15 apologize — 2 and then when were done, you can

16 catalog, you know, just type out what each

17 document is and make it a list, and then well

18 have a copy and well annex it to the transcript,

19 okay?

20 MR. SEAVER: For us who cant see –

21 this is Ed Seaver — is that his file that youre

22 marking as Rabinovitz-2?

23 MR. PLACITELLA: Yeah. Its seven

24 and a half feet.

25 MR. SEAVER: Thank you.

135

1 MR. PLACITELLA: So we get to leave,

2 but you dont.

3 BY MR. PLACITELLA:

4 Q. Now, in your review of all the

5 materials in your discussions with people at

6 Allied, do you have an opinion as to whether

7 Allied made any mistakes in terms of protecting –

8 in terms of protecting people who worked in their

9 plant?

10 MR. DESTRIBATS: Objection.

11 THE WITNESS: Im not sure what

12 youre asking. Youre asking me, was there ever

13 an Allied employee who was ever hurt on the job?

14 BY MR. PLACITELLA:

15 Q. No. Im sorry. Ill limit it.

16 Thats a fair statement.

17 Do you believe, in terms of

18 preventing exposure to asbestos, in reviewing all

19 the material that you reviewed, whether Allied

20 ever made any mistakes with respect to people who

21 worked on its job site, that you know of?

22 MR. DESTRIBATS: Objection.

23 THE WITNESS: So youre not talking

24 about Allied employees now?

25 BY MR. PLACITELLA:

136

1 Q. Im talking about any human being

2 who worked in an Allied facility.

3 A. Youre asking me whether they were

4 ever exposed to harmful levels of asbestos and it

5 was Allieds fault?

6 Q. I just said mistakes. However you

7 categorize mistakes.

8 A. Okay, but Im not sure I understand

9 your question.

10 Q. Do you know what a mistake is? In

11 your opinion, did they make any mistakes?

12 MR. DESTRIBATS: Objection.

13 THE WITNESS: Wait, make any

14 mistakes that resulted –

15 BY MR. PLACITELLA:

16 Q. Just in terms of protecting peoples

17 health and safety who worked on their premises,

18 thats all.

19 A. Well, a mistake to me would mean

20 that they didnt do something they should have and

21 as a result someone was exposed to a level of

22 asbestos that increased their risk of getting

23 disease.

24 Q. Okay. If thats how you define it,

25 thats fine. I want to know, in your opinion, if

137

1 they made any mistakes?

2 A. And are we talking about a time

3 frame?

4 Q. From all the stuff that youve

5 looked at anytime.

6 A. Anytime?

7 Q. Yeah.

8 A. Anytime. You know, I would have to

9 look at each item they did and then look at the

10 time period and look at what resulted. I dont

11 think that can just be answered –

12 Q. If you cant answer it, you cant

13 answer it, whether they made any mistakes; you

14 dont know?

15 A. Based on the information I have

16 right now and my understanding of the word

17 mistake and the results, no, I cant answer that

18 right now.

19 Q. Okay. If I ask you that question in

20 front of a jury at trial, what information are you

21 going to tell me you need to know in order to

22 answer that question?

23 MR. DESTRIBATS: Objection.

24 THE WITNESS: Well, off of the top

25 of my head, I would say I need to know what was

138

1 known about the hazards of asbestos where there

2 was someone on Allied Signals site that was

3 exposed to a harmful level of asbestos and Allied

4 had the means and the knowledge and the ability to

5 prevent it. In other words, ability is that the

6 employees would have been — or the people would

7 have been under their control and not under some

8 other employers control.

9 BY MR. PLACITELLA:

10 Q. And those are the parameters?

11 A. Those are at least the things I

12 would have to know to –

13 Q. Okay. Well, well talk about that

14 at some point.

15 MR. PLACITELLA: Thank you for your

16 time. I dont have any other questions. I

17 appreciate it.

18 MR. DESTRIBATS: Any questions?

19 Anybody on the phone?

20 MR. PLACITELLA: Im sorry. That

21 shouldnt take too long.

22 MR. DESTRIBATS: Thank you,

23 everyone.

24 MR. GOLDSTEIN: This is Sebastian

25 Goldstein. I would need a copy of the transcript.

139

1 MS. BALSAM: This is Suzanne Balsam.

2 I would need a copy of the transcript.

3 MR. GOLDSTEIN: If you can give me a

4 PDF format, for Sebastian Goldstein, that would be

5 great, as well as a hard copy.

6 MR. SEAVER: Yes, give me a copy of

7 the transcript and an ASCII.

8 (Exhibit Rabinovitz-2 marked for

9 identification.)

10 (3:52 p.m.)

140

1 C E R T I F I C A T E

2 I, Denise M. Pitchford, a Certified

3 Court Reporter and Notary Public of the State of

4 New Jersey, do hereby certify that prior to the

5 commencement of the examination, the witness

6 and/or witnesses were sworn by me to testify to

7 the truth and nothing but the truth.

8 I do further certify that the foregoing

9 is a true and accurate computer-aided transcript

10 of the testimony as taken stenographically by and

11 before me at the time, place and on the date

12 hereinbefore set forth.

13 I do further certify that I am neither

14 of counsel nor attorney for any party in this

15 action, that I am not interested in the event nor

16 outcome of this litigation.

22 ____________________________
Certified Court Reporter
23 XI01866
Notary Public of New Jersey
24 My Commission Expires 6/30/08

25 Dated: ____________

141

1 JURAT

2 I, SHELDON H. RABINOVITZ, Ph.D., do
hereby certify that I have read the foregoing
3 transcript of my testimony taken on Monday, April
14, 2008 and have signed it subject to the
4 following changes:

5 PAGE LINE CORRECTION

20 _____________________________
SHELDON H. RABINOVITZ, Ph.D.
21
DATE ___________
22
Sworn and subscribed to me before this
23
_____________ day of ___________, 2008
24
_______________________________
25 NOTARY PUBLIC

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