1 ] MARSHALL CIRCUIT COURT
CASE NO: 03CI-00421
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3 MARTHA McGEE, Individually :
and as Ancillary :
4 Administratrix of the :
ESTATE OF BILL McGEE :
5 :
VS. :
6 HENRY A. PETTER SUPPLY :
COMPANY, et al :
7 Defendants :
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8 MONDAY, DECEMBER 22, 2008
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10 Video deposition of ARTHUR L.
11 FRANK, M.D., PH.D., taken pursuant to notice,
12 held at Drexel University, 1505 Race Street,
13 Philadelphia, Pennsylvania, beginning at
14 approximately 2:30 p.m., before Lorraine
15 Murtaugh, Court Reporter, and Notary Public,
16 in and for the Commonwealth of Pennsylvania,
17 there being present.
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VERITEXT NATIONAL COURT REPORTING COMPANY
24 KNIPES-COHEN
1801 MARKET STREET, SUITE 1800
25 PHILADELPHIA, PENNSYLVANIA 19103
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1 APPEARANCES CONTINUED:
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SALES, TILLMAN, WALLBAUM,
3 CATLETT & SATTERLEY
BY: KENNETH L. SALES, ESQUIRE
4 1900 Waterfront Plaza
325 West Main Street
5 Louisville, Kentucky 40202
Phone: (502) 814-5566
6 Ksales@stwlaw.com
Representing the Plaintiff
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8 McMURRY & LIVINGSTON, PLLC
BY: STEPHEN E. SMITH, JR.,ESQUIRE
9 333 Broadway, 7th Floor
Paducah, Kentucky 42002
10 Phone: (270) 443-6511
Sonny@ml-lawfirm.com
11 Representing Henry A. Petter
Supply Company
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I N D E X
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3 WITNESS
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ARTHUR L. FRANK, M.D., PH.D.
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6 EXAMINATION PAGE
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BY MR. SALES 5, 89
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BY MR. SMITH 62
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E X H I B I T S
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15 NUMBER DESCRIPTION PAGE MARKED
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FRANK-1 CURRICULUM VITAE 4
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1 (Exhibit Frank-1 was marked for
2 identification and is attached hereto.)
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4 THE VIDEOTAPE OPERATOR: We are
5 now on the video record. The time is 2:30.
6 My name is Earle Strain of Veritext. The
7 date today is December 22, 2008. This
8 deposition is being held at 1505 Race Street,
9 Philadelphia, PA.
10 The Caption of this case is McGee
11 versus Henry A. Petter Supply Company, et al.
12 The name of the Witness is Arthur Frank.
13 Appearances are Kenneth L. Sales, attorney
14 for the Plaintiff. All Defense Counsel will
15 be noted on the stenograph record. The court
16 reporter is Lorraine Murtaugh of Veritext who
17 will swear in the Witness and we can proceed.
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19 ARTHUR L. FRANK, M.D., PH.D.,
20 after having been duly sworn, was examined
21 and testified as follows:
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23 EXAMINATION
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25 BY MR. SALES:
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1 Q Good afternoon, Dr. Frank.
2 A Good afternoon, Mr. Sales.
3 Q Could you tell the folks on the Jury
4 who you are and where we are?
5 A My name is Arthur Frank. We are in a
6 conference room at the Drexel University
7 School of Public Health where I teach. Im
8 currently Professor of Public Health and
9 Chair of the Department of Environmental
10 Occupational Health. And were here today to
11 discuss some aspects of the case of Mr. Magee
12 with you.
13 Q Doctor, is this a medical school?
14 A There is a medical school at Drexel.
15 Im also a Professor of Medicine. That
16 building is actually across the street. And
17 Im a Professor of Medicine in the Pulmonary
18 Division, and as I said I have my major
19 appointment at the School of Public Health.
20 Q Whats the difference between the
21 School of Public Health and the School of
22 Medicine?
23 A The School of Medicine trains
24 physicians, and so I lecture to the medical
25 students, I lecture to residents who are
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1 getting their medical training.
2 Public health students are trying
3 to learn something about how the health of
4 the public can be affected, both positively
5 and negatively by good or bad actions,
6 including what we have to teach them, which
7 is exposures at the workplace or in the
8 general environment that might make people
9 sick and how we can protect people from such
10 exposures.
11 Q What does someone do who graduates from
12 a School of Public Health?
13 A They can do any number of things. They
14 can go on for additional training. In our
15 field we train at the Masters level, so
16 people go on, many of our students go on to
17 get their doctoral degree in toxicology or
18 industrial hygiene. Some of our students go
19 on to medical school, some go to dental
20 school, some have even gone to law school to
21 do environmental health law.
22 Graduates of our school work in
23 places like public health departments. Here
24 in the City our graduates work over there,
25 one, for example, is in charge of food safety
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1 for the City of Philadelphia. And other
2 students go to work for the Government,
3 Federal Government in various agencies or for
4 nonprofit public health organizations as
5 well.
6 Q Dr. Frank, lets go back in time and
7 explain to the Jury what your educational
8 background was and how you got to where we
9 are sitting today.
10 A After graduating from college in 1968,
11 I entered medical school at the Mount Sinai
12 School of Medicine in New York City. I had
13 the honor and privilege to be in the very
14 first class when the school opened.
15 I graduated four years later with
16 my M.D., my Medical Degree. I stayed on at
17 the Mount Sinai Hospital, starting my
18 training in internal medicine, which is
19 general adult medicine.
20 After my first year of training,
21 I left to become a Commissioned Officer in
22 the United States Public Health Service, a
23 commission that I still hold some thirty-five
24 years later. My equivalent rank now would
25 that of a Navy Captain or an Army Corporal in
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1 the Public Health Service.
2 Specifically from 1973 to 1975 I
3 served at the Lung Cancer Branch of the
4 National Cancer Institute, and my research
5 had to do with health effects of asbestos on
6 respiratory tissue.
7 After my time of active duty I
8 returned to the Mount Sinai Hospital in New
9 York where I completed two residencies. The
10 training that I had started earlier in
11 internal medicine and also became a resident
12 and completed my training in occupational
13 medicine, which is the field of preventive
14 medicine that looks at the exposures that
15 people have, either at workplaces or in the
16 general environment that might make them
17 sick.
18 Subsequently, I became certified
19 as a specialist in internal medicine in 1978
20 and in occupational medicine in 1979.
21 In addition to medical training I
22 earned a second doctoral degree, a Ph.D.
23 Degree in biomedical sciences that was
24 awarded to me by the City University of New
25 York, where I did my graduate studies for my
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1 Ph.D. And my original research had to do
2 with the effects of asbestos on respiratory
3 tissue and trying to understand something
4 about how exposures to asbestos might give
5 rise to the development of cancer.
6 Q What kind of studies were you — youve
7 told us the studies, but whats involved with
8 that?
9 A It involves studying the initial
10 interaction between asbestos and cells,
11 specifically cells from the respiratory
12 system. Primarily we use animal cells. We
13 did a lot of work with hamsters, we did some
14 work with cow, but we also looked at human
15 tissue and we found that within twenty-four
16 to forty-eight hours of exposure to asbestos
17 these cells that line our respiratory track
18 get turned on by asbestos and they grow both
19 in size and in number much more rapidly. And
20 while twenty-four to forty-eight hours
21 certainly is not enough to time to give you
22 cancer, it is exactly these kinds of changes
23 that you would need to see prior to the
24 subsequent development of cancer, and we also
25 looked at other materials not known to cause
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1 lung cancer, it was already known by the time
2 I was doing this work that asbestos caused
3 lung cancer, and we saw that those materials
4 that did not, to our knowledge, cause lung
5 cancer, did not cause some of these same
6 cellar changes.
7 Q So, you compared things that you didnt
8 believe caused lung cancer with things such
9 as asbestos that did to see if there was any
10 difference in the reaction?
11 A Correct. And there was and thats what
12 lead to the research that we published that
13 had me awarded my Ph.D. Degree.
14 Q And you published your research in a
15 medical journal?
16 A Yes. There were any number of
17 publications that came out of my cell culture
18 work.
19 Q Okay. And after that — now, were you
20 already an M.D. at this time?
21 A Yes. I had received my Medical Degree
22 in 1972. It was in 1977, as I finished my
23 two residencies, that I was also awarded my
24 Ph.D., and beginning in July of 1977 started
25 my academic career as a physician working at
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1 four medical and scientific institutions.
2 Q All right. Just a moment on your work
3 with the Public Health Service, how did you
4 happen to get into the Public Health Service?
5 A That was through the help of my mentor.
6 One of the things about Mount Sinai was that
7 there was an organization there or a unit
8 called The Environmental Sciences Laboratory.
9 Dr. Irving Selikoff, some call
10 him sort of Dr. Asbestos, he was well-known
11 by the time I met him in 1968 for his
12 research on asbestos, he took me on as a
13 student. He was in charge of my graduate
14 studies for my Ph.D. He also was director of
15 my occupational medicine residency program.
16 So, I learned, in a sense, at the masters
17 feet about the hazards of asbestos.
18 He knew one of the senior
19 scientists at the National Cancer Institute.
20 I was interested in an academic and research
21 career. And so I was interviewed and
22 accepted into the Public Health Service to
23 work at the National Cancer Institute to look
24 at the hazards of asbestos.
25 Q And what was, briefly, because Im
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1 going to ask you about some historical
2 material shortly, what was the importance of
3 Dr. Selikoff to asbestos research?
4 A Dr. Selikoff was certainly not the
5 first to point out that asbestos could cause
6 a wide variety of diseases. He did, however,
7 study more intensively than almost anybody
8 else the development of disease, the
9 widespread nature of groups of individuals
10 who might develop disease from exposure to
11 asbestos.
12 He did some landmark work in the
13 relationship between exposure to asbestos and
14 cigarettes and the subsequent development of
15 lung cancer. He published that paper, a
16 landmark paper, in 1968. It was actually
17 cited by JAMA, the Journal of the American
18 Medical Association, where it was published
19 as one of the hundred outstanding papers of
20 the 20th Century.
21 So, he did more to bring about a
22 widespread knowledge and appreciation of the
23 hazards of asbestos, and did a lot to work at
24 preventing future disease as well.
25 Q And after your work on the Public
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1 Health Service and then you started at Mount
2 Sinai, how long were you there and what where
3 your duties there?
4 A I did — when I finished my own
5 training in 1977, I was hired onto the
6 faculty at Mount Sinai. I rose from the rank
7 of instructor through Assistant Professor to
8 Associate Professor in six years, and was in
9 charge of two residency programs there, the
10 one on occupation medicine, the one in
11 general preventive medicine. I continued my
12 research. I still had a research laboratory
13 there.
14 And I worked there on the faculty
15 until 1983, at which point I was hired as
16 Professor and Chair of a new department at
17 the University of Kentucky College of
18 Medicine, and so I got to go and start a
19 Department of Preventive Medicine and
20 Environmental Health.
21 I served in that position
22 starting from scratch with a brand new
23 department, leaving after eleven years with
24 about seventy people on the payroll and a
25 very productive academic department at the
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1 medical school. I was still doing
2 asbestos-related work.
3 Im still doing it. Here it is
4 my fortieth year from having first met
5 Dr. Selikoff, and Im still doing
6 asbestos-related research and publishing in
7 the field.
8 In 1994, I left the University of
9 Kentucky to become Vice-President for Medical
10 Education at the University of Texas Health
11 Center at Tyler, one of the six medical
12 campuses in the University of Texas System.
13 I served in that capacity for eight years,
14 along with being a Professor of Occupational
15 and Environmental Medicine.
16 And then six and a half years
17 ago, in 2002, came here to Drexel to head up
18 the Department of Environmental &
19 Occupational Health here at the School of
20 Public Health.
21 And as I said, Im still doing
22 asbestos-related research. Just a few months
23 ago, in September, I presented at an
24 international meeting in England on research
25 that Ive been doing in China for almost
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1 twenty years on the hazards of asbestos in
2 that country.
3 Q Doctor, while you were at the
4 University of Kentucky, did you do any work
5 for any other entities in Kentucky other than
6 the University?
7 A Oh, many. I was asked by various
8 offices and the State Government. I worked
9 for the Department of Labor. I advised the
10 Surgeon General on the hazards of asbestos.
11 I advised the Department of
12 Corrections on the hazards of asbestos in
13 jails, not only to the prisoners, but also to
14 the prison guards because they were being
15 exposed to asbestos in the prisons.
16 I met with local school boards
17 about issues of asbestos in schools. And I
18 was also hired as a consultant for various
19 companies.
20 I worked with Ashland Oil, and
21 the first talk I ever gave for them was to
22 their safety committee. They asked me to
23 speak to them about the hazards of asbestos.
24 I was hired as a consultant by
25 the Toyota Company in Georgetown, and from
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1 the time they hired me on until the time I
2 left Kentucky I was a consultant and our
3 department did work for them.
4 And then I was also asked by
5 labor unions to advise them about
6 occupational hazards, including asbestos.
7 Q Were you on any Kentucky state
8 committees of any kind?
9 A I was. I served as an advisor to the
10 Department of Labor. I was a founding member
11 of the Kentucky Safety & Health Network. The
12 year that I left, I was then the
13 president-elect and would have become
14 president the next year, but I moved onto
15 Texas, so I couldnt very well run a Kentucky
16 organization from six or 700 miles away.
17 I served in various capacities,
18 sharing my knowledge about asbestos while I
19 was in Kentucky.
20 Q Doctor, in addition to what youve told
21 us, now youve been licensed to practice in
22 several states; have you not?
23 A Over the years Ive held licenses in
24 five states. My active licenses are still in
25 Texas, where I still do some research, and
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1 here in Pennsylvania.
2 Q You held a license in Kentucky?
3 A Ive had a license in Kentucky; yes,
4 sir.
5 Q All right. In addition to the things
6 youve told us, youve been a member of a
7 number of international and national
8 organizations. And, Doctor, just for the
9 benefit of the Jury, were going to attach
10 your Curriculum Vitae as an exhibit to your
11 testimony here.
12 A Yes, sir.
13 Q And in order to save everybody a whole
14 lot of time, Im not going to have you go
15 through each and every item in your
16 Curriculum Vitae.
17 A Right.
18 Q Im asking you things that I would
19 prefer to call the thumb-nail sketch or
20 highlight film.
21 A Sure.
22 Q And you recognize that, so what Im
23 going to point to things and just ask you to
24 point out a few important ones. But in your
25 CV there is reference to some organizations
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1 that youre a member of, and could you just
2 briefly tell us about a few of those?
3 A Yes. Theres some national
4 organizations here in this country, such as
5 the American Public Health Association, the
6 American College of Preventive Medicine,
7 which gave me their Distinguished Service
8 Award a number of years ago.
9 Im also a member of something
10 called the Collegium Ramazzini. Professor
11 Ramazzini was an Italian physician who in the
12 year 1700 wrote the first textbook on
13 occupational health hazards, and there is an
14 international organization limited by its
15 charter to 180 physicians and scientists from
16 around the world. I was elected to that back
17 in the mid 1980s and have been a member,
18 been active in that organizations activities
19 with regard to asbestos. Ive often spoken
20 at our annual meetings on my research on
21 asbestos.
22 So, those would be sort of the
23 highlights of many organizations to which I
24 belong.
25 Q All right. And what medical societies
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1 are you a member of?
2 A Probably the most interesting one is
3 here in Philadelphia, the College of
4 Physician & Surgeons here in Philadelphia,
5 which is the oldest organized medical society
6 in the United States. It was founded in, I
7 believe, 1775. One of the original signers
8 of the Decoration of Independence, Dr.
9 Benjamin Rush, was one of the first members
10 of the College of Physicians here in
11 Philadelphia, so Im a member of that.
12 And then organizations like the
13 American College of Physicians, the American
14 College of Preventive Medicine, the American
15 Public Health Association and other similar
16 organizations.
17 Q And you mentioned that you had gotten
18 Board Certification. Whats the purpose and
19 meaning of getting Board Certification?
20 A The meaning of Board Certification
21 means that one has gone through an approved
22 residency, that is other physicians have
23 trained you, that you have to meet their
24 standards and then you have to pass an
25 examination to be called a specialist in that
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1 field. And I passed the examinations to
2 become certified as a specialist in both
3 internal medicine and in occupational
4 medicine.
5 And over the years have written
6 questions for the licensure exams for other
7 physicians. I spent seven years,
8 interestingly enough it was here in
9 Philadelphia, where the National Board of
10 Medical Examiners exist, and for seven years,
11 which is a rather long time for that
12 organization, I was on a series of committees
13 that wrote questions both for the licensure
14 exam for physicians to become licensed here
15 in the United States, as well as writing
16 questions for the Board Certification exam in
17 occupational medicine.
18 Q Have you given lectures in different
19 places, Doctor?
20 A Ive been very fortunate. I give
21 lectures quite regularly. Just last week I
22 was in San Antonio lecturing on the subject
23 of asbestos to the United States Air Force
24 School of Aerospace Medicine. It was their
25 preventive medicine and occupational medicine
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1 residents, and they asked me to come down and
2 give a series of lectures. That was one of
3 them.
4 I literally get the chance to
5 lecture all over the world. Ive lectured
6 many times here in the United States, but
7 also have lectured in as varied a set of
8 countries as Brazil, India, China, Italy,
9 most of Europe, and Ive had — Thailand.
10 Ive had the good fortune of
11 being able to share my knowledge and
12 experience with regard to asbestos and
13 asbestos-related diseases.
14 Q And youve written a number of
15 articles?
16 A I have. Somewhere about 150 or sixty
17 or seventy, somewhere around there, items in
18 my Curriculum Vitae, the document youre
19 going to attach. Some are book chapters,
20 some are original articles in the, whats
21 called, peer-reviewed literature, that is
22 other scientists review them and judge if its
23 worthy of being published.
24 I do peer review, over the years,
25 for at least a dozen different journals.
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1 Q Youre one of the people judging other
2 articles?
3 A People judge mine and I judge other
4 peoples. Just this morning I finished a
5 review of an article and sent it off to the
6 editor-in-chief. So, its the kind of thing
7 I do quite regularly.
8 And then the third section would
9 be published abstracts. When you give a
10 presentation at a major meeting, they
11 sometimes ask you to write up a half a page
12 or one page that is a summary of ones
13 research. So, all together theres over 150
14 or sixty such publications in my record.
15 Q How many of those deal with the subject
16 of asbestos disease?
17 A I would say about half of them have
18 something to do with asbestos. Theres a few
19 others that deal with a variety of other
20 subjects. I did whats called agricultural
21 safety and health work both in Kentucky and
22 Texas for many years, and so theres a number
23 of articles in that area, as well as other
24 things that Ive published about over the
25 years.
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1 Q Have many of the articles youve
2 written regarding asbestos dealt specifically
3 with lung cancer?
4 A Yes.
5 Q And you — well, go ahead. I didnt
6 mean to interrupt.
7 A Well, many of them have to do with my
8 original research, which has to do with lung
9 cancer. Ive also been asked — a large
10 number of what we would call book chapters
11 have been for publications that have had the
12 editors of those volumes ask me specifically
13 to write about the substances thats cause
14 lung cancer, and asbestos is certainly one of
15 them, along with other things. So, a lot of
16 my writings have to do with specifically the
17 subject of lung cancer.
18 Q Doctor, in addition to these many
19 things that youve discussed with us that are
20 in more detail in your Curriculum Vitae, have
21 you been called upon to testify in legal
22 proceedings over the years?
23 A I have. This is about my thirtieth or
24 so year of doing whats called medical/legal
25 work. Ive been doing that at the four
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1 institutions that Ive taught at.
2 The first case had to do with a
3 gentleman I had seen at our clinic. I
4 diagnosed asbestosis in him and the next
5 thing I knew I was in court testifying about
6 it, and Ive been testifying many times since
7 then.
8 Q And youve testified at or reviewed
9 cases at my request?
10 A Yes, sir.
11 Q Have you testified in every case that
12 Ive asked you to review?
13 A No. There are some cases where I dont
14 feel there is even a relationship between
15 exposure and the disease in question. So, in
16 those cases we dont proceed any further. In
17 other cases Ive sometimes written a report
18 and the matter seems to have been resolved.
19 So, I dont testify in every case, but I call
20 each case as I see it.
21 Q In addition to doing legal work at the
22 request of people such as myself, have you
23 done legal work and analysis for Governmental
24 entities?
25 A I have. As I said, I was an advisor to
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1 the Attorney General of the Commonwealth of
2 Kentucky when I was there with regard to
3 asbestos matters.
4 Ive worked for some asbestos
5 companies as theyve been involved in
6 litigation activities related to some of
7 their previous work and interactions in a
8 commercial way.
9 And at the present time Im
10 actually involved with the Department of
11 Justice in Washington D.C. over a criminal
12 matter that has to do with exposure to
13 asbestos.
14 So, Ive had the very good
15 fortune of doing different kinds of work that
16 call upon my experience with regard to
17 asbestos and asbestos-related diseases.
18 Q Other than testifying in legal
19 proceedings like this, have you had to
20 testify in front of any Government bodies?
21 A Yes. Ive been asked to come testify,
22 not only in this country in front of
23 Governmental bodies, but overseas. Ive
24 testified to the Brazilian Legislature. Ive
25 testified in front of Governmental
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1 organizations in other countries.
2 I have met with parliamentary
3 leaders in places like Israel to talk about
4 the hazards of asbestos. So, yes, thats
5 part of what Ive done as well.
6 Q Doctor, in doing all this work in the
7 area of asbestos over the years, have you
8 developed an understanding from a historical
9 perspective of the general knowledge
10 available in the scientific and public
11 community regarding asbestos and disease?
12 A I would like to think I have. Not only
13 has this been a major professional area of
14 interest for me, but my Ph.D. work required
15 that I go back and read as much of the old
16 literature as I can find. So, over the years
17 Ive read thousands and thousands of articles
18 and have knowledge about asbestos.
19 I mean, theres an ancient body
20 of knowledge that goes back literally, you
21 know, a couple of thousand years. The Romans
22 knew about it, knew that it was a hazardous
23 material. But the modern history is a little
24 over a hundred years old at this point.
25 Q Doctor, have you taught regarding the
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1 historical background of asbestos?
2 A I have. And, in fact, there is a
3 textbook chapter I have thats on the history
4 and development and use of asbestos. So, it
5 is something Ive been asked to write about
6 and lecture about before, yes, sir.
7 Q If you could, for the benefit of the
8 Jury, give us a modern analysis of the
9 general knowledge about asbestos; where it
10 could be seen and where it was.
11 A I would say that the modern analysis
12 begins a little over a hundred years ago, in
13 1899, when a pathologist by the name of Dr.
14 Montague Murray got involved with a case. It
15 was a thirty-six year old man who was dying
16 of respiratory insufficiency. He couldnt
17 get enough air to maintain life anymore.
18 And what he told Dr. Montague
19 Murray was that he had started work in an
20 asbestos textile plant in London about ten
21 years earlier, and he started with ten –
22 nine other friends. Ten of them had started
23 together. And he was the tenth and last.
24 All of his bodies had preceded him into
25 death. And he was thirty-six, he was the
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1 oldest now, I presume, I dont the ages of
2 what the other nine were, but all of them had
3 died of respiratory insufficiency.
4 So, Dr. Montague Murray knew
5 about this problem, wrote about it in the
6 British literature and had a well-known
7 document in the first decade of the 1900s
8 saying that now we understand that asbestos
9 is a problem, we ought to be able to prevent
10 disease from occurring.
11 The next decade Dr. Collis wrote
12 frequently about the hazards of asbestos.
13 And, in fact, the term asbestosis, a
14 scarring of the lung caused by exposure was a
15 term coined by Dr. Cooke in 1924.
16 The first linkage of asbestos to
17 lung cancer came in a scientific paper
18 written in 1935 by two South Carolina
19 physicians who saw workers from an asbestos
20 textile plant. It was Drs. Lynch and Smith,
21 and they suggested, but didnt really know,
22 suggested that there may be a relationship
23 between exposure to asbestos and the
24 development of lung cancer.
25 And within a few years there was
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1 enough evidence that Wilheim Heuper, who was
2 head of occupational cancer studies at the
3 National Cancer Institute, the same
4 organization I was to go work at several
5 decades later, wrote in a textbook that he
6 published in 1942, that he considered
7 exposure to asbestos as a cause for lung
8 cancer.
9 Subsequent to that, the lay
10 press, the press that non-scientists might
11 read, began to talk about the hazards of
12 asbestos. And I think two telling documents
13 was the publication in 1949 of an article in
14 the Journal Scientific American, its really
15 a lay journal that ordinary people often
16 read, talking about the hazards of asbestos.
17 But even at a more widespread
18 level, the Parade Sunday supplement to the
19 newspaper that many of us get in our
20 newspapers, Parade Magazine had an article in
21 1952 that talked about cancer hazards around
22 the home. And it talked about a number of
23 them, and one of the ones that they mentioned
24 was that asbestos was found in the house and
25 in peoples homes and could give rise to
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1 cancer.
2 So, in a nutshell, that was the
3 development of knowledge about the hazards of
4 asbestos and specifically about the
5 development of lung cancers.
6 Obviously, as we sit here today
7 in 2008, we dont know everything there is
8 that would we would like to know about
9 besides, but the basic principle, in terms of
10 what asbestos is, what diseases it causes and
11 who is at risk, thats been known for fifty
12 years or more, a hundred years really.
13 Q Has there ever been any debate about
14 the relationship of various types of lung
15 cancer to exposure to asbestos?
16 A The only debate has been that not all
17 cell types — there are three major cell
18 types that make up ninety-five percent of all
19 the lung cancers we see. Its called
20 adenocarcinoma, squamous cell carcinoma and
21 small or oat cell carcinoma. Those three
22 cell types make up ninety-five percent of all
23 the lung cancers we see in people in general.
24 Smoking certainly is a cause of
25 those, but also asbestos is a cause of those.
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1 The other five percent are some unusual and
2 minor variants or other kinds of cancers in
3 the lung, those are not related to asbestos.
4 But any one of those three, if
5 someone has had prior exposure to asbestos
6 and have had it with enough time for it to
7 cause cancer to develop could be said to have
8 been causative in the development of such a
9 lung cancer.
10 Q Doctor, if we could, I would like to go
11 off camera for a moment and have you
12 demonstrate some things dealing with asbestos
13 disease. So, lets take a short break.
14 THE VIDEOTAPE OPERATOR: Were
15 going off the video. The time is 2:59.
16 – - -
17 (Whereupon a discussion was held
18 off the stenographic record.)
19 – - -
20 THE VIDEOTAPE OPERATOR: Were
21 back on the video. The time is 2:59.
22 BY MR. SALES:
23 Q Now, Doctor, let me — since this is a
24 case involving lung cancer –
25 A Yes, sir.
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1 Q — I want to talk, focus more on lung
2 cancer, but I would like for the Jury to get
3 a basic understanding of what diseases cause
4 asbestos, and lets talk about the
5 mechanisms.
6 A Well, first of all, lets mention that
7 asbestos really is a commercial term. Its
8 not one substance. Its a material found in
9 nature. Its not something thats man-made.
10 It comes in two varieties. It comes in a
11 serpentine form, called chrysotile or white
12 asbestos. And it comes in whats called an
13 amphibole, and there are five of those.
14 Basically they are chemically
15 different, but physically they are the same.
16 They are short, varying sizes, but theyre
17 fibers that are microscopic in size and can
18 get into the body and cause disease.
19 The important thing is, even
20 though there are these six different types of
21 asbestos, each one of them is capable of
22 producing all the diseases that were now
23 going to talk about.
24 Q All right.
25 A And you did ask me to talk about the
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1 diseases that you get, and specifically lung
2 cancer.
3 So, there are various
4 non-malignant diseases, that is diseases that
5 are not cancer, thats what we mean by a
6 malignancy. And the biggest problem is what
7 we call asbestosis, which is a scarring of
8 the lung thats caused by asbestos.
9 And then there are a whole range
10 of malignant diseases, the most important one
11 of which is lung cancer. There are other
12 diseases, not ones that were dealing with in
13 this case, mesothelioma, which is a fairly
14 rare cancer of the lining of the chest
15 cavity, almost exclusively caused by
16 asbestos, various gastrointestinal tract
17 cancers, kidney cancer, cancer of the larynx,
18 which is the voice box, and all of these.
19 But the most prominent one, and
20 the one we see the most of is lung cancer,
21 and that is a type of cancer. And asbestos
22 can cause the three different cell types that
23 weve already mentioned.
24 Q Now, if you could, Doctor, give us a
25 demonstration of how these — how asbestos
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1 acts on the lungs and may create these
2 diseases. And one other thing before we get
3 there, is there — in order to develop one of
4 these cancers, and, again, this case is about
5 lung cancer specifically, must you get one of
6 these other diseases, asbestosis or theres
7 different forms of asbestosis?
8 A No. Depending on which group of
9 individuals or any individual, you may see
10 this type of disease, you may see this type
11 of disease or you may see both types of
12 disease in the same individual.
13 Basically, somebody who develops
14 a lung cancer may or may not have asbestosis.
15 You do not need underlining asbestosis to say
16 that a lung cancer is related to asbestos.
17 And perhaps we can talk about why that is in
18 a minute.
19 Q Okay.
20 A That has to do with how much exposure
21 it takes to produce those. But basically,
22 asbestos disease happens this way, we breathe
23 in foreign materials, we breathe in viruses
24 and bacteria, all kinds of things through our
25 nose. The hairs there filter out large
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1 materials, and some of it ends up going down
2 into our lungs. Each of the lungs is made up
3 of billions of little air sacks that are
4 microscopic, and the oxygen gets put into our
5 blood, out of the blood we take our CO2, our
6 carbon dioxide that we need to get rid of.
7 And this all take place in billions of these
8 little air sacs around the lung.
9 And you can get scarring of the
10 lung or you can get a scaring of the lining
11 of the lung. And thats either asbestosis or
12 pleural asbestos, or pleural thickening,
13 whatever you might want to call it. There
14 are different names that are given.
15 But on the other side you can
16 also get cancer that starts in the lungs, so
17 a lung cancer, because the fibers get into
18 the lung and cause cancer. It also causes
19 the mesothelioma that weve talked about in
20 the lining of lung. And then we swallow some
21 of these fibers as well, and so they end up
22 getting into our body and causing a
23 gastrointestinal tract cancer, and then when
24 they get moved around the body into the
25 kidney and so forth, it can set up cancer
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1 there.
2 Now, we also wanted to make the
3 point that you can have one or the other
4 disease. There is something we call the
5 dose-response relationship. Basically what
6 this concept means is as the dose goes up, as
7 the amount of asbestos exposure you have goes
8 up, the likelihood of a response, or the
9 disease goes up. So that a little bit of
10 asbestos gives you a small risk. A lot of
11 asbestos gives you a greater risk.
12 Now, the reason that its a very
13 relevant question with regard to do you need
14 to have asbestosis, theres something we call
15 a threshold, it takes a certain amount of
16 asbestos to produce asbestosis. I cant give
17 you an exact number as to what that is.
18 Different doctors have tried to characterize
19 that and it varies depending on whose numbers
20 that you look at. But everybody agrees that
21 there is a threshold and above that threshold
22 you can develop asbestosis. Below that
23 threshold you do not expect to see it.
24 However, cancer can occur at much
25 lower levels than asbestosis. And so you get
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1 individuals who develop cancer because
2 theyve had a certain amount of asbestos, the
3 dose, and some of these people will get
4 cancer, but they havent had enough to give
5 them asbestosis. Other people have had a lot
6 of asbestos, so they have asbestosis and also
7 develop cancer. But because there is no
8 threshold for the cancers, any amount above
9 zero carries with it some risk, a small
10 amount, a very small risk, larger amounts
11 larger risks. That is why you can have one
12 or the other or both diseases.
13 Q Now, there are other things that cause
14 cancer, lung cancer, other than –
15 A Absolutely.
16 Q — asbestos. And specifically
17 something that will be important in this
18 case, is cigarettes.
19 A Yes. In the case that were dealing
20 with today was a gentleman that not only was
21 exposed to asbestos, but he was also a
22 cigarette smoker. He had given up smoking
23 some years earlier, and while the risk goes
24 down with each passing year from when youve
25 given up smoking, it doesnt really return to
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1 zero for very, very — or not zero, but to
2 the baseline of a non-smoker for many years.
3 But you have smoking thats also relevant.
4 But as I mentioned before,
5 theres some very important data with regard
6 to asbestos and cigarettes together. And
7 Ive published on this. Youll find some
8 references in my Curriculum Vitae. Somebody
9 who doesnt smoke and doesnt work with
10 asbestos, some of those people get lung
11 cancer.
12 I had an eighty-six year old
13 cousin, she was never in the work force, her
14 husband didnt smoke at all, no reason to
15 think that she would ever get a lung cancer,
16 but at eighty-six she developed and died from
17 a lung cancer. So, people who dont have any
18 known exposures sometimes will get that.
19 If you take someone who doesnt
20 smoke, but works with asbestos, they get a
21 five times increased risk of developing lung
22 cancer. So, asbestos by itself increases the
23 risk of getting cancer.
24 A typical one pack a day smoker
25 compared to this first individual has a ten
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1 times increased risk for developing lung
2 cancer. They can get lung cancer from
3 cigarettes, and, again, if they smoke two
4 packs a day the risk is higher, if they smoke
5 a half a pack, its less, and if they give it
6 up, their risk goes down, but it may still
7 remain elevated.
8 But if you take someone who both
9 works with asbestos and smokes, the risk is
10 not additive, its not five plus ten, but
11 its multiplied. And so the addition of
12 asbestos multiplies the smoking risk so you
13 now get a fifty times increased risk of
14 developing lung cancer. And you cant sort
15 out and say which part was more important.
16 They both work together. But clearly the
17 risk went up dramatically compared to a
18 smoker by the addition of the asbestos.
19 Q Now, is asbestos the same as cigarette
20 in terms of once you get away from it, the
21 risk of developing cancer goes down?
22 A No. Because the substances in
23 cigarettes, once they get into the body are
24 metabolized, they are changed into less
25 harmful materials and the body gets rid of
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1 it.
2 Now, the body does get rid of
3 much of the asbestos that we inhale, but it
4 doesnt get rid of all of it. So, at the end
5 of someones lifetime, you will find asbestos
6 in their lungs that has been there and has
7 taken up what we call long-term biologic
8 residence, it will always be there, it can
9 always exert its affect, and no matter how
10 many years youve not had any further
11 exposure to asbestos, you will continue to be
12 at risk for an asbestos-related cancer.
13 So, weve seen cases of people
14 who worked for a summer or two when they were
15 a teenager in a construction trade getting
16 some exposure to asbestos and end up decades
17 later coming down with an asbestos-related
18 cancer, even though that was their only
19 exposure, because that asbestos that got into
20 their lungs, some of it stayed there and
21 ended up causing the disease.
22 Q And why is it that the cigarette
23 smoking risk goes down? You said it
24 metabolizes, but whats the differences
25 between how asbestos is changed in the body
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1 as opposed to the deposits from cigarette
2 smoke?
3 A Cigarette smoke are chemicals. Not
4 that — I mean, asbestos is a chemical, too,
5 but its a physical agent, a fiber, and it
6 stays there forever, some of them. Some of
7 them get broken down. Some of them get
8 eliminated. The body has some ways of doing
9 that.
10 But if I took a piece of lung
11 tissue out of almost anybody, because
12 asbestos is a naturally occurring material,
13 and I looked hard enough, I could find some
14 asbestos in their lungs that will have been
15 there throughout much of their lives.
16 But the chemicals that are in
17 cigarette smoke, hazardous as they are, if
18 you dont get any more and you get rid of the
19 chemicals in the form that is hazardous and
20 turn them into something thats not hazardous
21 and your body gets rid of them through the
22 liver or through the urine, because it
23 metabolizes it, it changes it so it can be
24 eliminated from the body, its no longer
25 there to do damage. And so if there is no
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1 more incoming hazard, no more smoking, the
2 body gets rid of what was there and it heals
3 up the tissue that has been damaged very
4 often before it moves far enough along to
5 become cancerous.
6 On the other hand with asbestos,
7 the cancer risk is always there because those
8 fibers are always there.
9 Q And they interact with the chemical
10 properties of cigarettes?
11 A Yes. Originally when you have the
12 cigarettes and the asbestos together we know
13 that the chemical hazards that exist on
14 cigarettes get bound to the fibers and that
15 gets pulled into tissue and held there. And
16 so that may be why you get this great
17 increase, because instead of getting rid of
18 these chemicals, the asbestos fiber now holds
19 it in place.
20 Q You said something about the fact that
21 the risk of cancer from cigarette smoking
22 after twenty years goes down to close to that
23 of a non-smoker.
24 A Right. It depends on how much of a
25 smoker you were. If you were a half a pack a
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1 day smoker, probably after twenty years you
2 are not much different from a non-smoker.
3 One pack a day, it might be twenty-five
4 years. Two packs a day it might take
5 thirty-five or forty years.
6 Q Okay. Lets go off the record. Thank
7 you, Doctor.
8 THE VIDEOTAPE OPERATOR: Were
9 going off the video. The time is 3:13.
10 – - -
11 (Whereupon a discussion was held
12 off the stenographic record.)
13 – - -
14 THE VIDEOTAPE OPERATOR: Back on
15 the video. The time is 3:13.
16 BY MR. SALES:
17 Q Doctor, I appreciate you explaining
18 this, how the asbestos attacks the body and
19 the cancer risk. Can you quantify how much
20 asbestos a person must breathe in to develop
21 asbestos disease?
22 A Well, again, to develop asbestosis, the
23 scarring of the lung, different doctors, I
24 have not done those kinds of calculations,
25 have talked about how much it takes. And it
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1 varies a great deal. Some people it may take
2 a relatively small amount, others a much
3 larger amount.
4 But basically, any amount of a
5 cancer causing substance carries some risk of
6 cancer. Now, if Im a teenager and I smoke
7 one cigarette and decide never to smoke
8 another cigarette again in my life because I
9 didnt like it, I would have an
10 infinitesimally small risk from that
11 cigarette. It wouldnt be zero, but I would
12 have a very small risk of getting lung cancer
13 from that one cigarette.
14 If I smoked more and with the
15 increasing amounts of smoking or exposure to
16 arsenic or isopropanol, or anything that
17 might cause lung cancer, as the amount goes
18 up, the risk goes up, but even a very small
19 amount. Theres data from animals that as
20 little as one day of exposure in the
21 laboratory will give rise to both lung
22 cancers and mesothelioma, and yet in the same
23 laboratory if you expose the animals for
24 longer than one day, youll get more cancers,
25 but you will get some with even just one day
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1 of exposure.
2 Q You were — theres a thing called PEL
3 and TLV. Do you know what that is?
4 A Yes.
5 Q What are they?
6 A PEL are what are currently allowed
7 under OSHA called the permissible exposure
8 limit, PEL. Its the legally allowable limit
9 that are allowed in workplaces under OSHA,
10 the Occupational Safety & Health
11 Administration.
12 OSHA came into being in 1971.
13 One of the very first standards they set was
14 for asbestos. It started out, I believe, at
15 twelve fibers per cc, thats a cubic
16 centimeter about the size of a sugar cube,
17 then it went to five, then went to two, then
18 it went to .2 fibers. The current allowable
19 limit is .1 fiber per cc. That is what is
20 legally allowable. But nowhere does OSHA say
21 that that is a safe amount.
22 In fact, when they set the limit
23 to .1 they said, even at this greatly reduced
24 limit, compared to what it used to be, 500
25 times less than the five, they said that
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1 there would still be excess cases of cancer,
2 including lung cancer at this reduced level.
3 Now, TLV was something similar.
4 There is an organization called the American
5 Conference of Governmental Industrial
6 Hygienists. Its a private organization, not
7 a Government agency. They have no regulatory
8 authority. And they had something called the
9 threshold limit valves. They predated, they
10 existed before OSHA existed. They still
11 excess. They still make recommendations.
12 And the TLVs are their recommendations for
13 exposure to asbestos. And those, too, have
14 come down over the years, and so theyve been
15 recommendations about exposure, but have not
16 ever been claimed to be what might be called
17 a safe level or a level at which nobody will
18 ever get disease.
19 Q Doctor, if you can see visible dust,
20 does that comport to any TLV or PEL standard
21 that you are aware of?
22 A Im not an industrial hygienist. They
23 are the kinds of people, I have one, a
24 colleague in my department here has his
25 office next to mine. And so Ive learned and
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1 worked with industrial hygienists over the
2 years, first of all, seeing dust doesnt tell
3 you that its necessarily asbestos, but if it
4 is an asbestos-containing dust, what my
5 industrial hygiene colleagues have taught
6 over the years, is that if you can see the
7 dust in the air, you are more than likely
8 dealing with an exposure, an amount of
9 exposure that exceeds either the TLV, the
10 recommended limit, or the PEL, the legally
11 allowable limit, if you can see dust in the
12 air.
13 Again, dust may come from a
14 product that has both asbestos and other
15 materials in it, but it generally speaks to
16 having a fairly high level of exposure.
17 Q At the PELs that even predated what
18 were looking at today, say in the 60s or
19 70s, would visible dust, based upon your
20 studies of the literature, have met the PEL
21 standards?
22 A That would have been above what is now
23 a PEL standard and was then above the TLV
24 standard.
25 Q All right. And why — I mean, do these
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1 standards — in fact, these standards that
2 have been developed over the years for safe
3 level of exposures to asbestos –
4 A No, no, no, not safe levels.
5 Q Thanks for correcting me. Permissible
6 levels.
7 A Permissible, not safe.
8 Q Well, lets talk about that for a
9 minute. Because these are things that cause
10 cancer –
11 A Theres only one safe level for a
12 material that causes cancer; zero.
13 Q Okay.
14 A Anything above zero carries a risk. A
15 little bit carries a little risk, more
16 carries a greater risk. If theres enough
17 dust to see it, youre talking about a higher
18 level of risk than being in a facility where
19 you dont see dust, but there still may be
20 levels of asbestos in the air.
21 Q Okay. So, these standards that the
22 Government has allowed exposure to these
23 substances, have they ever permitted a
24 visible dust level from, say, an
25 asbestos-containing product?
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1 A No. Those would have always been at
2 levels above what would have legally below
3 allowable.
4 Q All right. Now, has there — is there
5 a difference in scientific opinion over
6 whether one must find asbestosis in order to
7 relate a lung cancer to asbestos exposure?
8 A One of the things that Ive learned
9 about the field of asbestos and
10 asbestos-related disease is that there is a
11 wide range of opinion about things.
12 Most scientific areas have some
13 controversy. Different people see different
14 ways. You know, one of the things you
15 brought out in my earlier testimony, that
16 Ive been doing this kind of medical/legal
17 work for some thirty or so years now. Ive
18 never personally kept any of the monies from
19 it. The monies have always gone to my
20 university. So, I feel that I can tell the
21 truth as I know it. I dont have to — I get
22 paid, I dont live on any of the money thats
23 generated by my doing this work at all. As I
24 said, it goes to the university. And so I
25 can have certain views, and other people
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1 develop other views, but I think the fact
2 that there is controversy, some of it may be
3 legitimate, there are things that I think are
4 unsettled with regard to asbestos, and I
5 think there are some controversies that are
6 made up where people take certain views
7 because they are helpful to one side or the
8 other.
9 But I do recognize that there are
10 controversies about this issue of requiring
11 underlined asbestosis, and I think for some
12 people its a reasonable error that they make
13 because in the early day when Dr. Heuper
14 talked about asbestos causing lung cancer in
15 1942, he saw those cases among people that
16 had a lot of exposure to asbestos and they
17 virtually all had asbestosis.
18 But what weve learned over the
19 years is that you can still have an
20 asbestos-related cancer or a lung cancer
21 without asbestosis, and, one, the biological
22 processes are different. Theyre not even
23 the same processes.
24 So, anybody that says you have to
25 have it would be in the minority and fly in
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1 the face of the generally accepted view that
2 they are two separate processes caused by the
3 same set of exposure and that you do not need
4 asbestosis to get an asbestos-related lung
5 cancer or any other kind of cancer.
6 Q Did Dr. Selikoff make these findings in
7 his studies?
8 A Yes, he did. Again, he found many
9 cases of lung cancers and published on this,
10 where there was no underlying asbestosis.
11 Q And as compared to other studies that
12 have been done regarding these issues, how
13 many people did he study?
14 A He had the largest study in the world,
15 and although he passed away a number of years
16 ago, colleagues at Mount Sinai, where I
17 trained where he did his work, are looking
18 after those groups of workers, and he had
19 under observations 17,800 unionized asbestos
20 insulation workers, and thats the group that
21 is larger than almost any group thats ever
22 been studied and has been followed for a
23 longer period of time that almost anybody has
24 followed any kind of group.
25 There are a few other long-term
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1 study examples. The Japanese population that
2 was exposed to the atomic bombs at the end of
3 World War II, for example, has been studied
4 over time.
5 But 17,8000 asbestos workers have
6 been followed for many, many decades now and
7 we have a pretty good sense of what disease
8 outcomes you get from exposure to asbestos.
9 Q In that group, were there non-smokers
10 exposed to asbestos getting lung cancer?
11 A Absolutely.
12 Q And is that — these numbers, these
13 risk numbers that you showed us earlier, are
14 those largely based on the studies done by
15 Dr. Selikoff?
16 A Yes. And the basic principle has been
17 documented by other scientists in other
18 groups around the world where they find this
19 synergistic effect.
20 Q Okay. Doctor, in the case weve asked
21 you to review some materials regarding
22 Mr. Magee.
23 A Yes, sir.
24 Q And if you could tell the folks on the
25 Jury an overview of what materials youve
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1 been asked to review?
2 A There was a set of medical records that
3 spoke to the disease entities and medical
4 problems Mr. McGee had, and like many other
5 people, he had a variety of medical problems
6 that were not related to asbestos.
7 We were also asked to read
8 materials and learn about his exposures to
9 asbestos, without going into details of
10 exactly on what day he had which exposure,
11 because we actually dont know that. We know
12 that he was exposed to asbestos from the work
13 that he did.
14 And the outcome was that
15 Mr. McGee, who happened to be a smoker,
16 developed a squamous cell carcinoma of the
17 lung which ultimately took his life, and that
18 in my reviewing these records, it is my
19 judgement and considered opinion, which I do
20 hold, with a reasonable degree of medical
21 certainty, that he developed and died of his
22 lung cancer which was caused by his exposures
23 to asbestos in combination and
24 synergistically interacting with the
25 cigarettes, as we have spoken.
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1 Q Did you undertake and do you ever
2 consider it to be your role to parse through
3 and evaluate each asbestos exposure someone
4 has?
5 A First of all, theres no way to do
6 that. Theres no accurate way unless
7 somebody was being measured every day with a
8 monitor or the workplace was being monitored,
9 you cant go back and do that.
10 Any industrial hygienist will
11 tell you that thats a fools errand, if you
12 will. You cant really go back and do that.
13 You can get some approximation, but nothing
14 that really resembles the reality.
15 And Ive never done that, Ive
16 never — I didnt do it in this case and in
17 the thirty years that Ive been doing this
18 kind of work, have never parsed it out. I
19 simply am left to say that asbestos had a
20 role, the cigarettes had a role, the two of
21 them together is what has caused his lung
22 cancer.
23 Q You read, I believe, and we provided
24 you the depositions of several relatives and
25 co-workers.
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1 A Yes. His wife and co-workers, yes.
2 Q Yes. And were you able to get from the
3 deposition testimony that Mr. McGee had what
4 you would consider as a scientist based upon
5 your studies, the type of occupational
6 exposure consistent with the development of
7 an asbestos disease?
8 A Yes. Otherwise, I wouldnt have
9 reached the conclusion that I did. He did
10 have this greater than background exposure
11 that he had over many years. He did
12 different jobs at his worksite, but was
13 exposed to a variety of asbestos-containing
14 products, and it was sufficient, in my
15 opinion, plus it occurred in the proper time
16 frame so that I could say that asbestos had a
17 role in the development of his lung cancer.
18 Q Did you have an opinion within the
19 realm of medical probability and/or certainty
20 whether any one exposure to asbestos caused
21 his lung cancer or whether all the exposures
22 contributed substantially to the cause of his
23 lung cancer?
24 A One has to say that all of the
25 exposures did it. There is no way to say
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1 that the exposure on a Tuesday or a Saturday
2 or a Friday afternoon was the cause of his
3 cancer. The body doesnt know any different.
4 Once an asbestos fiber goes in, it doesnt
5 matter if it comes from this product or that
6 property product, the body reacts the same
7 way. And since you dont know which fiber on
8 which day actually caused the cancer, you say
9 that the risk was there from the cumulative
10 exposure, and then when he actually developed
11 the disease and the risk was no longer a
12 theoretical risk but a practical one, he did
13 get the disease, all of the exposures he had
14 were contributory to that.
15 Q Doctor, is it one fiber that causes a
16 lung cancer or is it that cumulative
17 exposure?
18 A At the level of an individual cell, it
19 may be that one fiber, but which fiber on
20 which day comes from the accumulation or the
21 cumulative risk of all of those fibers that
22 interact, and one of them set off a string of
23 events, or several of them interacted in such
24 a way to set off a string of events, which
25 led to the lung cancer that Mr. Magee
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1 developed.
2 Q Okay. So, science has never determined
3 that there is one moment, but rather there
4 may be a cumulative moment in a fiber or
5 contributing to one another?
6 A Its actually much more complicated
7 than that. Our bodies produce individual
8 cancer cells relatively frequently, and we
9 have mechanisms by which we can identify and
10 the body gets rid of these abnormal cells,
11 but sometimes that mechanism doesnt work and
12 so we end up with a cancer that becomes
13 clinically apparent, needs to be treated and
14 sometimes even will kill us.
15 And so someone like Mr. McGee may
16 have any number of cells that were abnormal
17 due to exposures to asbestos and/or his
18 cigarettes, but at the end it was one such
19 cell that became the cancer that became
20 clinically apparent and ended up causing his
21 death.
22 Q You mentioned that Mr. McGee had a
23 history of cigarette smoking.
24 A Yes.
25 Q Were you able to determine, from
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1 looking at some of the deposition testimony,
2 what essentially that history was?
3 A He had stopped about twenty years
4 before his cancer was found. So, his risk
5 from the tobacco would have been coming down.
6 On the other hand, while its not nearly as
7 influential, if you will, in the production
8 of lung cancer, he also was a cigar smoker
9 and smoked some cigars after he gave up his
10 cigarettes. So, I think theres a role for
11 tobacco, I just cant say how much or how
12 little that role was.
13 It was the two materials together
14 and certainly the asbestos that was causative
15 in terms of his developing his lung cancer.
16 Q Did his risk for developing lung cancer
17 for asbestos ever decrease?
18 A No.
19 Q There was mention that he had used
20 snuff. Does that play any role in the
21 development of lung cancer?
22 A If he developed a mouth cancer, and
23 asbestos also causes some mouth cancers, then
24 I would have had to say that the snuff might
25 have interacted his gums, his tongue,
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1 whatever tissue may have become cancerous,
2 but not in his lung. You dont swallow the
3 snuff. You dont inhale it, really.
4 Q With regard to cigars, are there any
5 studies regarding how they actually
6 contribute to lung cancer?
7 A Theres some studies from the American
8 Cancer Society. They are much less able to
9 produce lung cancer than cigarettes. There
10 is no question about that. But it is a
11 little bit more than someone who is not even
12 a cigar smoker.
13 Q What are the most likely cancers one
14 develops from cigar smoke?
15 A Mouth and lip cancer, would be as
16 likely, if not more likely.
17 Q Based upon your review of the medical
18 records, Doctor, were you able to determine
19 whether Mr. McGee would have suffered pain as
20 a result of his lung cancer?
21 A Well, certainly anybody who went
22 through what he had, he had his chest cracked
23 open, the surgeon went in, they found that
24 the cancer was more widespread than they had
25 thought from the testing they had done before
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1 they did the surgery, they couldnt operate,
2 he was at too much of a risk to take out the
3 parts of his lungs that were affected, at
4 least two parts of the three on his right
5 side were affected. He would have had to
6 heal up from the surgery and then lung cancer
7 generally produces a difficult road on its
8 way to causing death.
9 Q Does lung cancer create a burden on the
10 persons breathing capacity?
11 A Absolutely. It takes up space where
12 you could be holding oxygen in those air sacs
13 that are now filled up with cancer cells.
14 Q Doctor, Im going to ask you
15 hypothetically, although you may have read
16 some testimony of individuals regarding
17 exposure to asbestos supplied to some of the
18 workplaces that Mr. McGee worked at over the
19 years. Hypothetically, if you will assume
20 that during the course of Mr. McGees work
21 history, he was exposed to asbestos materials
22 supplied and sold to his employer, and that
23 the asbestos material supplied by Petter
24 Supply to his employers created dust that
25 Mr. McGee breathed during the course of his
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1 work, do you have opinion within the realm of
2 medical probability whether that would have
3 contributed to the cause of his lung cancer?
4 MR. SMITH: Objection to the
5 foundation.
6 BY MR. SALES:
7 Q Go ahead.
8 A Yes, I do have an opinion, and my
9 opinion would be that any material supplied
10 by Petter Supply or from whatever source, if
11 they caused him to breathe in more asbestos
12 than he otherwise would have, would have
13 contributed to his developing that cancer.
14 Q Doctor, thank you. There may be other
15 questions for you.
16 A Youre more than welcome.
17 MR. SMITH: Lets go off the
18 record.
19 THE VIDEOTAPE OPERATOR: Were
20 going off the video. The time is 3:22.
21 – - -
22 (Whereupon a discussion was held
23 off the stenographic record.)
24 – - -
25 THE VIDEOTAPE OPERATOR: Were
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1 back on the video. The time is 3:35,
2 beginning of tape two.
3 – - -
4 EXAMINATION
5 – - -
6 BY MR. SMITH:
7 Q Good afternoon, Dr. Frank.
8 A Good afternoon, sir.
9 Q Going back to the beginning of your
10 testimony, you testified that you worked at
11 Drexel University now; correct?
12 A Yes, sir.
13 Q Its located in Philadelphia,
14 Pennsylvania?
15 A Yes, sir.
16 Q And your position at Drexel University
17 involves primarily teaching and
18 administrative tasks; does it not?
19 A Yes, and research. I spend probably
20 about forty percent of my time doing
21 research.
22 Q You do not regularly see or treat
23 patients?
24 A Not at this point in my career, no. I
25 still have an appointment at the College of
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1 Medicine, but do not see a lot of patients
2 here. Most of my clinical work is related to
3 my research activities.
4 Q And Mr. McGee was never one of your
5 patients; was he?
6 A No, sir.
7 Q Youve never seen him?
8 A No, nor spoke with him.
9 Q Youve never examined him?
10 A No.
11 Q And you know Mr. McGee only by the
12 records that you reviewed; is that correct?
13 A Thats correct.
14 Q Youve never discussed the case with
15 Mr. McGee?
16 A Correct.
17 Q You did not speak with any of his
18 co-workers?
19 A No, I did not.
20 Q And you are not licensed to practice
21 medicine in Kentucky now; are you?
22 A I still have my license. Its in an
23 inactive status. All I would have to do is
24 write to the board and say you can reactivate
25 it, I could come see patients in Kentucky
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1 again. I had — there was no action taken.
2 I voluntarily suspended my license because I
3 wasnt seeing any patients in Kentucky
4 anymore.
5 Q Your only active licenses now are in
6 the State of Pennsylvania and Texas; correct?
7 A Correct.
8 Q Now, your work on Mr. McGees case has
9 essentially consisted of reviewing medical
10 records and some depositions that you were
11 provided by Plaintiffs Counsel; correct?
12 A Yes, sir.
13 Q You did not review any x-ray films?
14 A Correct.
15 Q Or CT films?
16 A Correct.
17 Q Or MRI films?
18 A Correct.
19 Q You saw the reports from those studies
20 that were in the medical records that you
21 were provided; is that correct?
22 A Yes. Just as I saw the pathology
23 reports and surgical reports and all the
24 other medical records.
25 Q Based upon the reports that you saw in
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1 the medical records, you did not see any
2 evidence of interstitial fibrosis; did you?
3 A No, I did not.
4 Q And just so its clear for the Jury,
5 interstitial fibrosis refers to scarring of
6 lung tissue that results from exposure to
7 asbestos; is that correct?
8 A Or to many other things, but
9 specifically I saw no evidence that Mr. McGee
10 had asbestosis.
11 Q And the presence of interstitial
12 fibrosis is a marker that indicates that one
13 has been exposed to asbestos; correct?
14 A Its one of many markers, yes.
15 Q Is interstitial fibrosis the same as
16 saying asbestosis?
17 A It can be. There are many causes of
18 interstitial asbestosis (sic). Black lung is
19 an interstitial fibrosis. Silicosis is an
20 interstitial fibrosis. But when it is caused
21 by asbestos, then we called it asbestosis.
22 Q Based on the records that you saw,
23 Mr. McGee did not have asbestosis; did he?
24 A Correct.
25 Q And you are not testifying that
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1 Mr. McGee had any scarring caused by asbestos
2 in his lung tissue; are you?
3 A I am not.
4 Q Now, would you agree with me,
5 Dr. Frank, that the predominant cause of lung
6 cancer is smoking?
7 A More people get lung cancer from
8 smoking because that is the one cancer
9 causing agent that more people are exposed
10 to.
11 Q So, would your answer to my question be
12 yes?
13 A The data would show that more people
14 get lung cancer from smoking than anything
15 else because more people are exposed to
16 cigarettes than anything else that causes
17 lung cancer, yes.
18 Q And the rate among men is approximately
19 ninety percent; is it not?
20 A Im not sure I understand the question.
21 The rate of what is ninety percent.
22 Q The cause for lung cancer –
23 A Oh, from smoking. Its about
24 eighty-five percent if you read the Surgeon
25 Generals report. About eight-five percent
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1 of all lung cancers in men come from
2 cigarette smoke. Its actually on its way
3 down as men are giving up cigarette smoking.
4 Q And you understand, from what youve
5 seen in this case, that certainly Mr. McGee
6 was a cigarette smoker in the past; correct?
7 A Stopping about twenty years his
8 diagnosis of lung cancer, yes, sir.
9 Q And about at the time he stopped,
10 approximately twenty years prior to his
11 diagnosis, he was in about his mid forties;
12 was he not?
13 A Something like that, yes.
14 Q He was about eighteen years of age when
15 he started?
16 A It said he had a number of years of
17 smoking and then gave it up and was reducing
18 risk as every year went by, but then, as I
19 said, he also smoked cigars that probably
20 added a small bit to his risk.
21 Q And he had approximately twenty-eight
22 years of cigarette smoking history; correct?
23 A Yes.
24 Q And then, as you mentioned, on top of
25 that he had the cigar smoking that continued
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1 even up until 2002 when he was diagnosed with
2 lung cancer?
3 A Yes, sir.
4 Q So, his risk of lung cancer would not
5 have dropped as much as someone who had quit
6 smoking cigarettes and then never smoked
7 cigars?
8 A Correct.
9 Q Okay. And is a twenty-eight year
10 smoking history significant enough to
11 attribute lung cancer to smoking?
12 A If that had been his only exposure and
13 he had no asbestos exposure, I would have no
14 trouble saying that the twenty-eight years of
15 cigarette smoking gave rise to his lung
16 cancer.
17 Q And he certainly had a smoking history
18 that was capable of causing lung cancer?
19 A Yes.
20 Q The type of lung cancer that Mr. McGee
21 had, which was squamous cell carcinoma, is a
22 form of cancer that is commonly caused by
23 smoking; is it not?
24 A Yes, sir, just as its commonly caused
25 by asbestos.
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1 Q The percentage of people who are
2 exposed to asbestos only with no smoking
3 history is very small, is it not, as far as
4 people exposed to asbestos who develop lung
5 cancer?
6 A Right. Many blue collar workers,
7 people who worked in trades where asbestos
8 would have been used, many of them were
9 smokers, so you often find the two together.
10 Q But in the instance where you have
11 individuals who were non-smokers, their rate
12 of lung cancer is much smaller; is it not?
13 A I gave those numbers; one, five, ten,
14 fifty.
15 Q But you dont know what percentage that
16 translates into; do you?
17 A No.
18 Q And you agree, do you not, that even
19 though Mr. McGee had stopped smoking
20 cigarettes, he continued to have a risk for
21 lung cancer that was higher than someone who
22 had never smoked cigarettes?
23 A Yes.
24 Q Are you aware that Mr. McGee was
25 diagnosed with chronic obstructive pulmonary
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1 disease?
2 A Yes, sir, the records do speak to that.
3 Q And can you tell the Jury what chronic
4 obstructive pulmonary disease is?
5 A Its a decrease in the ability to move
6 air in and out of the lungs. The most common
7 cause of which is cigarette smoke.
8 Q And COPD causes shortness of breath;
9 does it not?
10 A It can. It doesnt always.
11 Q Now, COPD is not caused by asbestos; is
12 it?
13 A No. You can get obstructive pulmonary
14 changes due to asbestos, but you would not,
15 if you were correctly diagnosing it, you
16 would not call somebody having COPD as being
17 caused by asbestos.
18 Q And Mr. McGees diagnosis was COPD?
19 A It was.
20 Q Okay. And COPD is certainly a marker
21 that suggests that Mr. McGee was exposed to
22 something other than asbestos; correct?
23 A And we know he was exposed to something
24 other than asbestos. He was a cigarette
25 smoker. We dont have to guess at it. We
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1 know it.
2 Q Other than the lung cancer that was
3 diagnosed in Mr. McGees case, theres really
4 no medical evidence in the records or the
5 x-ray reports or the CT reports that
6 Mr. McGee has an asbestos-related disease; is
7 there?
8 A Thats a little like saying, you know,
9 other than that Mrs. Lincoln, how was the
10 play. How many diseases did you need? I
11 mean, he developed lung cancer at least in
12 part from his asbestos, but the fact that he
13 didnt have any other disease doesnt mean
14 that asbestos wasnt something important in
15 his life leading to a disease that caused his
16 death.
17 Q Certainly the fact that he has or had
18 COPD did not confirm his asbestos exposure;
19 correct?
20 A It speaks more to his cigarette smoking
21 than his asbestos exposure.
22 Q You eluded to this earlier, that
23 asbestos-related disease involves a dose
24 response relationship.
25 A Yes, sir.
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1 Q And cigarette smoking also has a dose
2 response relationship; does it not?
3 A That would be true.
4 Q And that would mean that the greater
5 the dose, the more likely one is to develop
6 disease as a result of that exposure;
7 correct?
8 A Yes, sir.
9 Q And that would be true whether were
10 talking about cigarette smoke or asbestos?
11 A Or arsenic or anything else.
12 Q Now, in making your diagnosis and
13 rendering the opinions that youve rendered
14 here today, you did not perform any
15 assessment of the length of time that
16 Mr. McGee was exposed to asbestos; correct?
17 A I didnt have access to the data that
18 would even allow me to do that.
19 Q You did not perform any assessment of
20 the frequency of his exposure?
21 A Not frequency, duration, intensity;
22 those data just didnt seem to exist. I
23 dont have any ability to do that because I
24 dont have that data.
25 Q And youve testified here today about
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1 the OSHA permissible exposure limit; correct?
2 A Yes, sir.
3 Q And that is a limit that initially
4 began in 1971, or shortly after OSHA was
5 created; correct?
6 A Yes, sir.
7 Q Before 1971, there was no OSHA and
8 there was no permissible exposure limit
9 established; correct?
10 A There were TLVs, but not PELs.
11 Q Okay. And based on the information
12 available to OSHA, anyway, they determined
13 that the permissible exposure limits were an
14 acceptable limit in the workplace; correct?
15 A They were legally allowable. Im not
16 sure what you mean by acceptable. They
17 certainly werent medically acceptable, but
18 they were legally allowable.
19 Q And I believe you testified earlier
20 that youve not seen any monitoring studies
21 of whether there was any asbestos in the
22 plant environment where Mr. McGee worked;
23 correct?
24 A Ive not seen them. If they existed, I
25 would be happy to look at them and comment on
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1 it. And if they dont exist that doesnt
2 mean he wasnt exposed.
3 Q And you dont know whether the
4 environment at his plant ever exceeded the
5 permissible exposure limit for asbestos; do
6 you?
7 A I have no data on that way or the
8 other, so I cant speak to that. It may
9 have, may not have. I just dont know.
10 Q I think this goes without saying, but
11 would you agree with me that
12 asbestos-containing products were only a
13 factor in causing disease to the extent that
14 they released fibers that were inhaled by
15 Mr. McGee?
16 A You cant get disease unless you get
17 the fibers inside your body. Now, you know,
18 the hypothetical that Mr. Sales gave me
19 before spoke to visible dust, so that would
20 speak, at least in principle, to high levels.
21 But, again, I have no firm numbers or
22 anything that anybody measured. But whatever
23 the levels were, you know, if Mr. McGee had
24 been wearing a respirator, the levels could
25 have been huge, but he wouldnt have been
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1 able to breathe them into his body and end up
2 with lung cancer. So, whatever they were,
3 they were sufficient to give him his lung
4 cancer.
5 Q Lets talk about this issue about
6 visible dust. And as I understand it, just
7 because theres visible dust, you would agree
8 with me that that doesnt necessarily mean
9 that theres asbestos in that dust; correct?
10 A No. I testified to that earlier. It
11 doesnt mean that its asbestos-containing,
12 but if its an asbestos-containing product,
13 you would expect that some of that dust would
14 be asbestos.
15 Q Right. But if there was a product, for
16 example, that is lying around on a plant
17 floor that collects dust that results from
18 the manufacturing process and one uses that
19 product and there is dust that comes off that
20 product, you dont necessarily know that
21 thats asbestos dust thats coming off the
22 product; do you?
23 A It depends on whats in the product
24 thats creating the dust. If there is no
25 asbestos, then theres no asbestos. If
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1 theres asbestos, you would expect some of
2 the material you see in the air to be
3 asbestos fibers.
4 Q All right. Now, back to what I was
5 talking to you about before. If an
6 asbestos-containing product does not release
7 fibers or Mr. McGee did not breathe those
8 fibers, then the products could not be the
9 cause of Mr. McGees lung cancer; correct?
10 A Both those would be true if they, in
11 fact, represent the facts of the case.
12 Q And as you sit here today, you do not
13 know whether or not Mr. McGee was exposed to
14 asbestos from any product supplied by Petter
15 Supply Company; correct?
16 A Thats correct. I dont know what it
17 is they supplied to the facility that he
18 worked. I would leave that description to
19 others.
20 Q And you testified earlier that you have
21 read thousands of articles over the years
22 relating to asbestos; correct?
23 A Yes, sir.
24 Q And those are articles that are medical
25 and scientific in nature; are they not?
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1 A Most of them. There have been lay
2 press articles as well. Theres all kinds of
3 places that people write about asbestos. But
4 the vast majority have been in the scientific
5 literature.
6 Q And there are certainly some of those
7 articles that you rely upon and some that you
8 do not?
9 A Some appear to be more accurate with
10 what I understand to be the nature of what
11 actually goes on with asbestos and some
12 arent. So, I would rely on those that make
13 sense and not rely on those that dont make
14 sense to me scientifically.
15 Q And how do you make that determination,
16 Dr. Frank, as to which articles youre going
17 to consider as authoritative and reliable
18 from your standpoint?
19 A It depends on what theyre saying.
20 Theres one article, for example, that says
21 the shape of one of the types of asbestos is
22 such that it doesnt get very far into the
23 lungs. I completely dismiss that for all
24 kinds of reasons. A, because its been found
25 in the lung, and its the most common fiber
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1 found in the pleura, which is the lining of
2 the lung. It means it would have had to go
3 through the lung to get to the pleura. So,
4 when somebody writes and says, well, this one
5 is shaped a certain way and doesnt get into
6 the lungs, it makes no sense.
7 Similarly, if I read — I just
8 read it this morning. I was saying that I
9 reviewed an article where theyre talking
10 about cancer causing chemicals in the air,
11 metals in this case. Mr. McGee worked in a
12 metal processing facility. And they say –
13 they gave as series of metals and they said
14 these were all at safe levels. Well, for –
15 some of them dont cause cancer and so they
16 could be considered safe in terms of they
17 wouldnt cause other kinds of disease, but it
18 was some engineers who were writing about
19 what they measured and didnt understand the
20 biology that if you have cancer causing
21 metal, arsenic was one of them, for example,
22 there is no such thing as a safe level.
23 So, I dismissed that article and
24 didnt find it reliable and didnt think it
25 should be published because it was flat
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1 wrong. And, you know, after — Ive actually
2 been doing scientific research and reading
3 literature since I was a fifteen year old
4 high school kid, so, Ive read literature,
5 Ive been taught how to read the literature,
6 Ive been taught how to make assessments of
7 epidemiology, you know, thats the process of
8 becoming a professional in ones field.
9 Q Yes, sir, and I understand that, and I
10 think that gets to my point. That basically
11 you rely upon your education and your
12 experience and training as a medical doctor
13 when youre reading articles and determining
14 whether or not you agree with whats in that
15 article and whether or not youre willing to
16 accept it as reliable and authoritative;
17 correct?
18 A I think that statement is a little
19 limited. I certainly rely upon what I know
20 as a medical doctor for some things, but, you
21 know, the fact that I have a second doctoral
22 degree and I have to show proficiency in a
23 range of other disciplines, language,
24 proficiency in foreign languages, I have to
25 show that Ive had training in biostatistics,
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1 all of that and my reading about the
2 mechanism by which disease occurs or how to
3 study materials in tissue, or what kind of
4 stains to use, thats not what a medical
5 doctor would learn, thats what I learned as
6 a scientist, so I try to bring all of that in
7 making my judgements about what I find
8 reliable or not reliable about
9 asbestos-related science.
10 Q And youre not here today, are you,
11 Dr. Frank, to say that Petter Supply Company
12 should have the same knowledge about asbestos
13 as you do?
14 A Thats not for me to judge. Im not a
15 lawyer. I cant say what Petter Supply
16 Company is required to know about products
17 they sell. My understanding in having done
18 this kind of work for a long time is that if
19 somebody is in the marketplace and selling
20 products, there is an expectation they know
21 what the hazards of those products are. But
22 as to the legal requirements, I would leave
23 that to the Judge to explain to the Jury.
24 But I would certainly think that a company
25 selling a cancer causing material ought to
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1 know that it causes cancer and that it ought
2 to be warning people about the hazards of the
3 material that they are putting out in the
4 workplace.
5 Q Well, I object and move to strike the
6 non-responsive portion of your answer.
7 Youve not worked for a supply
8 company in the past; have you?
9 A No, sir.
10 Q Youve not studied what an industrial
11 supply company does; do you? Have you?
12 A No, sir.
13 Q Youve not read any trade journals,
14 newsletters or magazines that are circulated
15 among industrial supply companies; have you?
16 A No, sir.
17 Q You have not conducted any research to
18 determine what was published in any trade
19 journals, newsletters or magazines about
20 asbestos; have you?
21 A Oh, sure. Theres a lot about asbestos
22 in trade journals in — not with regard to
23 supply companies, but in general there have
24 been trade magazines, trade publications.
25 There have been organizations
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1 over the years, the Railroad Surgeons
2 Association, people — doctors that worked
3 for the railroad have minutes of their
4 meetings going back into the 1930s talking
5 about the hazards of asbestos. But with
6 regard to supply companies, no.
7 But Im certain Ive read trade
8 journals. Even Dr. Selikoff had a newsletter
9 that was sent to the workers and published
10 articles in the magazine put out by the
11 union. I would consider that a trade journal
12 and Ive certainly seen those articles. But
13 not with regard to supply companies.
14 Q Well, my question is limited to
15 industrial supply companies, and you have
16 not, I mean, researched to determine what was
17 published in their trade journals, magazines
18 or newsletters regarding asbestos; have you?
19 A No, sir.
20 Q And you dont know when anyone at
21 Petter Supply Company learned of any alleged
22 problems with asbestos products; do you?
23 A I dont know anybody at Petter Supply
24 or what they knew and when they knew it.
25 Q You dont have any information about
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1 any specific asbestos-containing products
2 that may have been sold by Petter Supply
3 Company in the past; do you?
4 A No, sir.
5 Q You have not tested any of the
6 asbestos-containing products sold by Petter
7 Supply Company?
8 A Its not the kind of work that I do,
9 but, no, I havent tested anything sold by
10 Petter Supply.
11 Q And youve not seen any reports of any
12 tests of any product sold by Petter Supply
13 Company; have you?
14 A I have not seen any. I dont know of
15 any that have ever been done.
16 Q You dont know whether
17 asbestos-containing products sold by Petter
18 Supply Company released asbestos fibers; do
19 you?
20 A Ive seen no studies one way or the
21 other. I cant speak to that.
22 Q And you dont know whether the fiber
23 release was at background level or not; do
24 you?
25 A No. Again, not having seen any data, I
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1 cant speak to that.
2 Q And if it is at least at background
3 level, Dr. Frank, would you be able to
4 attribute Mr. McGees disease to any exposure
5 to the products sold by Petter Supply
6 Company?
7 A What I would say is whatever –
8 background level means something that you or
9 I or any member of the Jury that might be
10 watching this would be exposed to.
11 So, lets say that amount is X,
12 and lets say we take a product of Petter
13 Supply that releases the same equivalent
14 amount, X. Mr. McGee now has not only the X
15 of the background that we all have, but he
16 has the same amount from what Petter Supply
17 Companys products release. So, he now has
18 two X. He has twice as much. It may be a
19 small amount, but its more than he would
20 have been exposed to, you know, from a
21 naturally occurring material thats in the
22 air that we all breathe. So, its twice as
23 much even though its a small amount.
24 So, with my sense that Ive
25 testified that any amount above the
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1 background that we would have, twice the
2 amount is certainly more than one times the
3 background that would have contributed to his
4 developing the disease.
5 Q And as you sit here today, you dont
6 know whether Mr. McGee was exposed to
7 asbestos from any products or materials that
8 were sold by Petter Supply Company?
9 A Thats addressed in the depositions,
10 but of my own personal knowledge, other than
11 what Ive read, no.
12 Q And youve not seen any of the
13 literature thats been published concerning
14 whether asbestos fibers are released by
15 asbestos-containing cloth; have you?
16 A I am not sure that there are such
17 studies.
18 Q You have not seen any literature
19 regarding the fibers released by
20 asbestos-containing tape; have you?
21 A No. Ive seen it, you know, from
22 gloves. I dont know if Petter Supply
23 supplied asbestos gloves. There are studies
24 about that, but not on tape and cloth.
25 Q And youve not seen any literature
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1 regarding fibers released by
2 asbestos-containing furnace door hose;
3 correct?
4 A As far as I know, Ive never seen such
5 studies, no.
6 Q And youve not participated in any
7 studies like that; have you?
8 A No, sir.
9 Q On any of those products?
10 A No. I mean, Ive seen people who have
11 been exposed to those products that have been
12 part of their overall exposure, but Ive done
13 no studies on that specifically. But there
14 have been three or 4,000 products made of
15 asbestos and I assure you that no scientist,
16 even all the scientists that have ever
17 studied asbestos together, have ever studied
18 all of the various products. We know that
19 asbestos is hazardous, and it doesnt really
20 matter to us which product it came from.
21 Q Now, in addition to your teaching
22 duties that you have here at Drexel
23 University, you do a significant amount of
24 medical/legal consulting; do you not?
25 A I see a number of cases a year, yes,
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1 several hundred.
2 Q And many of those deal with asbestos.
3 A I would say most of the work that I do
4 deals with asbestos.
5 Q And more specifically, would you say
6 that ninety percent or more would relate to
7 asbestos?
8 A Oh, yes.
9 Q And over the course of your thirty to
10 forty year career, you worked on several
11 thousands asbestos cases?
12 A Yes, sir; that would be a fair
13 statement.
14 Q And youve testified in many of those
15 cases, havent you, either by deposition or
16 at trial?
17 A Or both, yes.
18 Q And the vast majority of the work that
19 youve done in the area of asbestos has been
20 for plaintiffs counsel; correct?
21 A Yes, sir.
22 Q And in this case you were retained by
23 Mr. McGees Counsel; correct?
24 A Yes, sir.
25 Q And youve worked with Mr. Sales and
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1 his firm for the last twenty-five years or
2 so; correct?
3 A Something like that, yes, sir.
4 Q And you have alluded to this, Im not
5 sure that you ever testified exactly as to
6 your fees for the work that you do in
7 medical/legal consulting, what your rate is.
8 A At the present time the rate that the
9 University charges on my behalf is $400 and
10 hour, and all of the money goes to the
11 University.
12 Q And I believe you told me earlier that
13 the total amount of fees generated in the
14 course of twelve months is about $340,000?
15 A Its probably averaged something like
16 that for the last several years.
17 Q Thank you, Dr. Frank.
18 MR. SMITH: At this point Im
19 going to adjourn my cross-examination, but
20 yet I want to reserve the right to continue
21 my cross-examination after reviewing the
22 transcript of the discovery deposition and
23 the materials that were provided here today.
24 THE WITNESS: Youre welcome.
25 MR. SMITH: With that, theres no
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1 further questions.
2 – - -
3 EXAMINATION
4 – - -
5 BY MR. SALES:
6 Q Dr. Frank, Ken Sales. I just have a
7 few follow-ups. Is there any fiber type that
8 is not — of asbestos that is not capable of
9 causing lung cancer?
10 A No, and in my opinion they all can
11 cause lung cancer.
12 Q Is there any dispute in the medical
13 community regarding what fiber types may
14 cause lung cancer?
15 A I would like to say no, but there is
16 always the odd holdout here or there that
17 claims that only one or another fiber type.
18 But basically no.
19 Q Whats the –
20 MR. SMITH: I object to this line
21 of questioning to the extent that it goes
22 beyond what was covered in cross.
23 BY MR. SALES:
24 Q Whats the most predominant fiber type
25 in this country?
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1 A Chrysotile asbestos, about ninety to
2 ninety-five percent of all the asbestos ever
3 used in the United States has been of the
4 chrysotile variety.
5 Q All right. Doctor, youve testified
6 that you dont really see or treat patients
7 now.
8 A Correct.
9 Q But when you were at the University of
10 Kentucky, did you treat patients?
11 A Of course, and I still occasionally
12 will see patients that are referred to me or
13 are self-referred. My colleagues here call
14 me up. A lot of it I can deal with on the
15 phone. I dont literally have to go see the
16 patients. I can answer a question, thats
17 what a consultant does.
18 But all my life I have been
19 seeing patients from the time I was a medical
20 student. You know, less so now because now
21 Im doing a lot more teaching, I still do my
22 research, I run a department. So, Ive
23 certainly seen patients all of my career.
24 Q Doctor, what percentage of the men in
25 this country who have quit smoking for twenty
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1 years or more get lung cancer?
2 A It would be a very small percentage.
3 There would be some, but not very many.
4 Q So, when were talking about the
5 percentage of men in this country that get
6 lung cancer as being somewhere around
7 eighty-five percent, did that include –
8 A No, no, no.
9 Q Im sorry. Thats where I was
10 confused.
11 A Yes. Of those men who get lung cancer,
12 eighty-five percent of them will have been
13 smokers.
14 Q Right.
15 A Overall, if you take all the smokers in
16 the United States, only about ten percent of
17 them will ever get lung cancer. Ninety
18 percent of people who smoke dont get lung
19 cancer. So, theres a difference there. The
20 eighty-five percent refers to those people
21 with lung cancer, eighty-five percent of them
22 will have been smokers previously.
23 That also means that fifteen
24 percent have not been and some of those
25 people will have been exposed to other cancer
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1 causing agents, lung cancer causing agents,
2 asbestos, arsenic, isopropanol, radiation. I
3 mean, we can go on and on.
4 But percentage-wise, more people
5 get lung cancer who work with asbestos than
6 get lung cancer who smoke. Ten percent of
7 smokers get lung cancer. Roughly twenty
8 percent of asbestos insulators, for example,
9 get lung cancer.
10 Q All right. And the asbestos — those
11 who were exposed to asbestos, do they ever
12 lose that risk?
13 A No, they do not. There is no
14 decreasing in risk –
15 MR. SMITH: Objection. Thats
16 been asked and answered.
17 THE WITNESS: Theres decreasing
18 risk over time after you stop being exposed
19 to asbestos. Where there is a decrease in
20 risk over time as you stop cigarette smoking.
21 BY MR. SALES:
22 Q And the post twenty year ex-smoker, of
23 that eighty-five percent, do you know what
24 niche they fit in there?
25 A No. I — you know, thats cutting it
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1 and slicing and dicing it different ways.
2 But its much less of a percentage of that
3 group thats given up cigarettes for twenty
4 years than active smokers in terms of how
5 many get lung cancer.
6 Q I guess thats the point Im trying to
7 get to and trying to understand. The
8 distance from asbestos exposure, those
9 numbers dont change?
10 A Correct.
11 Q Is that right?
12 A But the further away you get from being
13 a smoker, the risk keeps going down,
14 interestingly, other than the first year. A
15 lot of people get religion that first year,
16 they start coughing up blood and they worry
17 that they may have a problem, so they give up
18 cigarettes and there is actually an increase
19 in lung cancer deaths in the first year among
20 non-smokers. But after you get that peak of
21 people who all of a sudden decide to give up
22 their cigarettes when its too late, over
23 time the risk goes down and down and down
24 with each year that you gave us cigarettes.
25 Q Thank you, Doctor.
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1 A Youre welcome.
2 THE VIDEOTAPE OPERATOR: That
3 concludes the video. The time is 4:06.
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1 C E R T I F I C A T E
2 – - -
3 STATE OF PENNSYLVANIA :
4 :
5 COUNTY OF PHILADELPHIA :
6 – - -
7 I, Lorraine Murtaugh, Court
8 Reporter and Notary Public, in and for the
9 Commonwealth of Pennsylvania, do hereby
10 certify that the foregoing testimony of
11 ARTHUR L. FRANK, M.D., PH.D., was taken
12 before me at 1505 Race Street, Philadelphia,
13 Pennsylvania, on Monday, December 22, 2008;
14 that the foregoing testimony was taken by me
15 in shorthand by myself and reduced to typing
16 under my direction and control; that the
17 foregoing pages 1 through 94 contain a true
18 and correct transcription of all of the
19 testimony of said Witness.
20
21
22
23 ………………….
LORRAINE MURTAUGH
24 Notary Public
25 My Commission expires
August 15, 2012
