1 IN THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, OHIO
2
LOWELL WAYNE REESE, et al., )
3 )
Plaintiff, )
4 ) CASE NO. CV-588713
vs. )
5 )
A.C. DELCO, et al., )
6 )
Defendants. )
7
8 – - -
9 ______________________________________________________
ORAL TELEPHONIC DEPOSITION OF
10 DR. RICHARD LEMEN
AUGUST 29, 2007
11 ______________________________________________________
12 ORAL TELEPHONIC DEPOSITION OF DR. RICHARD LEMEN,
13 produced as a witness, duly sworn by me at the instance
14 in all of the above-styled and numbered causes on the
15 29th day of August, 2007, at 9:00 a.m. to 9:50 a.m.
16 before MEREDITH B. COHEN, Certified Shorthand Reporter
17 No. B-2093 in and for the State of Georgia at
18 13010 Morris Road, in the City of Alpharetta, County of
19 Fulton, State of Georgia, pursuant to the California
20 Rules, and the provisions stated on the record or
21 attached therein.
22
23
24
25
2
1 A P P E A R A N C E S
2 FOR THE PLAINTIFF,
GARY M. DIMUZIO, ESQ.
3 LAW OFFICES OF GARY DIMUZIO
P.O. BOX 272909
4 HOUSTON, TEXAS 77277
5 FOR THE DEFENDANT, CHRYSLER, LLC, VOLKSWAGEN OF
AMERICA, INC.,
6 MATTHEW C. OCONNELL, ESQ.
SUTTER, OCONNELL & FARCHIONE
7 3600 ERIEVIEW TOWER
1301 EAST 9TH STREET
8 CLEVELAND, OHIO 44114
9 FOR THE DEFENDANTS, GENERAL MOTORS CORP., FORD
MOTOR COMPANY, TOYOTA MOTOR SALES USA, INC., NISSAN
10 NORTH AMERICA, INC., MITSUBISHI NORTH AMERICA,
BRAD RIMMEL, ESQ.
11 ROETZEL & ANDRESS
222 SOUTH MAIN STREET
12 AKRON, OHIO 44308
13 FOR THE DEFENDANT, AMERICAN HONDA MOROTOR CO.,
INC.,
14 STACEY A. GREENWELL (PALMER), ESQ.
THOMPSON HINE, LLP
15 3900 KEY CENTER
127 PUBLIC SQUARE
16 CLEVELAND, OHIO 44114
17 FOR THE DEFENDANT, HONEYWELL INTERNATIONAL, INC.,
SUCCESSOR-IN-INTEREST TO THE BENDIX CORPORATION,
18 JOYCE JACKSON WOOD, ESQ.
WILCOX AND SAVAGE, P.C.
19 ONE COMMERCIAL PLACE, SUITE 1800
NORFOLK, VIRGINIA 23510
20
KAREN L. MASCIO, ESQ.
21 WILLMAN & ARNOLD, LLP
705 MCKNIGHT PARK DRIVE
22 PITTSBURGH, PENNSYLVANIA 15237
23 FOR THE DEFENDANT, BORG WARNER,
JOHN W. CRIMANDO
24 CRIMANDO & CLELAND, P.C.
10 SOUTH MAIN, SUITE 301
25 MT. CLEMENS, MICHIGAN 48043
3
1 I N D E X
2 PAGE
3 DR. RICHARD LEMEN
4 Examination by Mr. OConnell………5
5 Examination by Mr. Rimmel…………33
6 Examination by Ms. Greenwell………34
7
Reporters Certificate………………36
8
9
10
11
E X H I B I T S
12
EXHIBIT DESCRIPTION PAGE
13
1 Objection of Notice 5
14
2 Notice 5
15
3 Copy of cover letter to 11
16 the Keahey firm
17 4 Copy of the OSHA 11
bulletin
18
5 Article – Asbestos 11
19 Exposure Causes
Mesothelioma, But Not
20 This Asbestos Exposure,
An Amicus Brief to the
21 Michigan Supreme Court
22 6 Copy of Dr. Lemens 11
Article from the
23 American Journal of
Industrial Medicine
24
25
4
1 E X H I B I T S (Continued)
2 EXHIBIT DESCRIPTION PAGE
3 7 Copy of Dr. Lemens 11
response published in
4 the American Journal of
Industrial Medicine
5
8 Copy of Dr. Lemens 11
6 letter to the editor
7 9 PowerPoint presentation 11
8 10 Curriculum Vitae 11
9 11 Estimated Gross Income 35
of Richard Lemen
10
11
12
13
14
15
16
17
18
19
20
21
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25
5
1 MR. OCONNELL: One objection is good for
2 all?
3 DEFENSE COUNSEL: So stipulated.
4 MR. OCONNELL: I also just want to state for
5 the record, that weve marked as Exhibit 1 the
6 Objection of the Notice and Exhibit 2 is the Notice.
7 (Exhibits 1 and 2 were marked for
8 identification.)
9
10 RICHARD A. LEMEN,
11 was called as a witness, having been first duly sworn,
12 was examined and testified as follows:
13
14 EXAMINATION
15 BY MR. OCONNELL:
16 Q Good morning, Dr. Lemen.
17 A Good morning.
18 Q How are you?
19 A Fine.
20 Q We last met in the Cox case in Cleveland.
21 A Yes, sir.
22 Q Since that case, have you testified at any
23 trial that relates to asbestos?
24 A Yes, I testified in Los Angeles about a month
25 ago in a trial called the Belt, B-E-L-T, Belt trial,
6
1 which was a joint compound trial, and the defendant was
2 Mundet.
3 I have been to other trials, but I didnt
4 testify because it settled before I traveled there, but
5 I dont think I testified.
6 Q Have you given any depositions in asbestos
7 cases relating to automotive friction products since
8 the Cox trial in May of this year?
9 A Yes, I gave one yesterday, and that was a
10 case for — the plaintiffs lawyer was Joseph
11 Satterly. The defense was, for Chrysler, Robert
12 Thaxton, Eric Faulk, and Elizabeth Phifer and Sam Terry
13 were the defendants that were there. And that was
14 videotaped. That is the only one I have done, since
15 May, on brakes.
16 Q That is a Texas case?
17 A Actually, it is a Kentucky case.
18 Q Can you tell us when you were first contacted
19 in this case?
20 A Well, approximately, around — this was sent
21 to me in November of 2006, so it has been on my
22 calendar for, you know, about eight months. It was the
23 first information I got –
24 Q And who were you contacted by?
25 A I was contacted by that firm, and then
7
1 Mr. Dimuzio contacted me.
2 MR. OCONNELL: For those of you on the
3 phone, I am looking at a cover letter dated November 1,
4 2006, from the Keahey office to Dr. Lemen, enclosing
5 certain materials for review.
6 BY MR. OCONNELL:
7 Q And I guess the next question is: What
8 materials did they send you to review? And if youd be
9 kind enough just to describe them briefly, please.
10 A They sent me deposition testimony of Lowell
11 Wayne Reese, taken October 10, 2006.
12 They also sent me a CD that had the four-day
13 deposition of Mr. Reese — it was actually two disks.
14 And that is what I received to begin with.
15 Q What else have you received since November of
16 06?
17 A Since then, I received the deposition
18 notice –
19 Q For today?
20 A For today. Ive received a copy of the
21 objections to the duces tecum, which was Exhibit 1, I
22 believe. And Ive received — and I didnt print it
23 all out because it was over a hundred pages, but I just
24 brought the first couple of pages of the deposition –
25 Q Of Mr. Miller?
8
1 A Yes. And that has been the sum total of the
2 case-specific information.
3 Q What were you asked to do by the plaintiffs
4 firm in this case?
5 A I was asked to, one, give state-of-the-art
6 testimony on the disease or the epidemiology of
7 asbestos-related disease, and secondly, I was asked to
8 provide data on the risk of developing mesothelioma
9 from the use of friction products.
10 Q Does your file contain any other materials?
11 A Yes.
12 Q I have the advantage of looking across the
13 table, but why dont you tell us what else youve got
14 there?
15 A I brought my original paper on asbestos and
16 brakes that I did in 2004; and then I brought my reply
17 to Dr. Tata, of her letter to the editor about my brake
18 paper; and I brought my reply to Dr. Roggli and
19 Dr. Langer about my brake paper.
20 I brought a copy of the presentation that I
21 have used in testimony on brakes, this happens to be
22 one in Delaware, the MVL hearings. Thats the slides
23 that I used.
24 Q Okay.
25 A I brought the OSHA information bulletin on
9
1 brakes.
2 Q This is the 2006 OSHA brake bulletin?
3 A Yes. I brought a paper that came out just
4 this week from the International Journal of
5 Occupational Health, which is a copy of the amicus
6 brief that was filed in Michigan, with the signatures
7 of about 40 or 50 different scientists.
8 It was filed in a case that I testified in
9 several years ago, and it was appealed to the appeals
10 court and then went to the Supreme court. And then the
11 last, I brought my –
12 Q Most recent CV?
13 A Right. And I also brought, even though I
14 noticed there was an objection to it, since I produced
15 it before, is my best estimate of what I have been paid
16 on asbestos litigation.
17 Q Just so we have a clean record — I assume
18 these are copies?
19 A Yes, all of these are copies.
20 MR. OCONNELL: Lets go off the record real
21 briefly. I want to mark them.
22 (Off the record.)
23 MR. OCONNELL: Exhibit 3 will be a copy of
24 the cover letter from the KU Firm to Dr. Lemen, dated
25 November 1, 06.
10
1 Exhibit 4 is a copy of the OSHA bulletin,
2 issued July 26, 2006.
3 Exhibit 5 is the new article that the doctor
4 just testified to — I will read the title so everybody
5 knows what it is, it is called, Asbestos Exposure
6 Causes Mesothelioma, But Not This Asbestos Exposure, an
7 Amicus Brief to the Michigan Supreme Court. The
8 author is Lowell Welch.
9 It appeared in Volume 13, No. 3,
10 July/September 2007, in the International Journal of
11 Occupational and Environmental Health.
12 Exhibit 6 is a copy of Dr. Lemens article
13 from the American Journal of Industrial Medicine,
14 published in 2004.
15 Exhibit 7 is a copy of Dr. Lemens response,
16 published in the American Journal of Industrial
17 Medicine, also in 2004.
18 Exhibit 8 is a copy of Dr. Lemens letter to
19 the editor of the American Journal of Industrial
20 Medicine, published in 2005.
21 Exhibit 9 is a copy of Dr. Lemens PowerPoint
22 presentation with respect to brakes, chrysotile, and
23 disease.
24 And No. 10 is a copy of Dr. Lemens most
25 recent curriculum vitae.
11
1 (Exhibits 3, 4, 5, 6, 7, 8, 9, and 10
2 were marked for identification.
3 BY MR. OCONNELL:
4 Q Doctor, aside from the Welch article that you
5 brought with you today, are there any other materials
6 in the published medical literature, epidemiological or
7 otherwise, that you consider to be recently
8 significant — by recently I mean since you were last,
9 sometime in the last six months?
10 A No, sir.
11 Q You have testified previously that you
12 believe that the epidemiology with respect to the risk
13 of contracting mesothelioma by brake mechanics is
14 equivocal. Is that still your testimony?
15 A Yes, it is.
16 Q And by equivocal, you have testified
17 that — well, why dont you tell me what equivocal
18 means.
19 A Well, what I meant by equivocal is — it
20 does not answer the question, basically. That the
21 epidemiological literature has not been able to address
22 the question, and I pointed out in my paper some of the
23 reasons for that.
24 So I guess that is what I would say about
25 equivocal.
12
1 Q The paper that were talking about –
2 A The 2004 paper.
3 Q You have discussed before; correct?
4 A Oh, yes, in much detail.
5 Q That said, that paper is not an
6 epidemiological study; is that fair?
7 A Thats correct. It is a review paper.
8 Q And as we sit here, we have previously talked
9 about the total of 17 epidemiological studies that in
10 some way, shape, or form address the risk of asbestos-
11 related disease or mesothelioma to brake workers?
12 A Correct.
13 Q Are there any additional studies, beyond the
14 17 that you have previously testified about?
15 A Not any original studies that Im aware of.
16 Q You will agree that none of the 17 studies
17 reports an increased risk of mesothelioma by brake
18 mechanics or automobile repair workers, beyond the
19 factor of 2?
20 A Thats correct.
21 Q With respect to the Welch article, which I
22 have not read yet and will not take your time to do so
23 on the record, would you tell me generally what this
24 article signifies?
25 A This article was filed as an amicus brief to
13
1 the Michigan Supreme Court — and to give you a little
2 history of this, I testified in a case about three
3 years ago for the Richardson & Patrick Firm out of
4 South Carolina in the Michigan courts, about brakes and
5 their ability, in my opinion, to cause mesothelioma.
6 The ruling, or the verdict, upheld — I
7 guess it was a plaintiffs — I dont know how you as
8 lawyers describe it, a plaintiffs verdict –
9 Q You either wear a W on your hat or an L.
10 I dont know how else I can describe it.
11 A Anyhow, that was then taken to an appeals
12 court in Michigan, and the appeals court upheld the
13 decision from the lower court. It then went to the
14 Michigan Supreme Court, and as a result of that, the
15 lawyers filed, the plaintiffs lawyers filed an amicus
16 brief. I guess, that is how it is done, I dont know
17 the legality, with the Michigan Supreme Court.
18 Lowell Welch was kind of the person, I
19 guess, that was the senior person on putting that
20 together. And so she took that and put it into a peer-
21 reviewed publication along with about 50 signatories
22 that signed the amicus brief.
23 So I havent compared this piece to piece to
24 the amicus brief, but it looks to me like its the,
25 just a reprint of the very same thing, with a short
14
1 introduction that talks about what an amicus brief is
2 and why they are publishing it.
3 Q Did you sign this paper?
4 A No, because it was about my testimony. It
5 wouldnt have been appropriate for me.
6 Q I would assume, that being the case, you did
7 not have an opportunity to review this paper before it
8 was printed?
9 A Not before it went out. I did see it after
10 it went out, though.
11 Q Did you see it before it went to the Michigan
12 Supreme Court?
13 A I dont think so. I think I saw it after it
14 went to the Michigan Supreme Court.
15 Q Dr. Welch is what kind of doctor?
16 A Shes a medical doctor, and she is
17 currently — I think shes currently — is it
18 Washington –
19 Q Center to Protect Workers Rights in Silver
20 Springs, Maryland?
21 A She is also connected with George Washington
22 University, I believe.
23 Q Youve testified previously that there are
24 some causes of mesothelioma that have not yet been
25 discovered by modern science. Is that still your
15
1 position today?
2 MR. DIMUZIO: Objection. Form.
3 THE WITNESS: Yes, it is.
4 BY MR. OCONNELL:
5 Q You have also testified previously that, in
6 your estimation, an individual who smokes cigarettes
7 has a greater potential to develop a mesothelioma,
8 given sufficient asbestos exposure; is that still your
9 position?
10 A Actually, what I testified to, just to be
11 clear, is that there is no direct synergistic effect
12 between mesothelioma and cigarette smoking.
13 What I have testified to is that when one
14 smokes cigarettes, their natural defense mechanisms are
15 broken down and do not work effectively; and therefore,
16 a smoker can have a bigger dose of asbestos than a
17 nonsmoker, because more fibers are able to get into the
18 lung than would occur without the cigarette smoking.
19 But as far as you see a synergistic effect
20 with lung cancer and smoking, you dont see that same
21 synergistic effect with mesothelioma and smoking.
22 Q You testified previously that the biological
23 mechanism for the development of mesothelioma in an
24 individual has not yet been discovered. Does that
25 remain your position today?
16
1 A That is still my position. I think we have
2 made some advances in this area, but I still think it
3 is an unknown.
4 Q Going back to cigarettes and mesothelioma for
5 a moment, are you aware of any past or ongoing
6 epidemiological studies that would show in association
7 between the two factors as you have described?
8 A I have not.
9 Q You would agree that not all asbestos
10 exposure would cause mesothelioma?
11 A I dont understand what you mean by that.
12 MR. DIMUZIO: Objection. Form.
13 BY MR. OCONNELL:
14 Q You testified previously that not all
15 asbestos exposures are equally capable of causing
16 mesothelioma in individuals; is that true?
17 A Yes, that is true.
18 Q Is it likewise not a fact that the majority
19 of people that are — and I am paraphrasing your prior
20 testimony, please correct me if you want — the
21 majority of individuals who are occupationally exposed
22 to asbestos do not develop asbestos-related disease?
23 A Thats correct.
24 Q And that is by a factor of about 85 to 90
25 percent?
17
1 A I would say — well, it depends upon the
2 cohort youre looking at, and so forth. I mean, the
3 higher the exposure in the cohort, the higher the
4 percentage that develop it. But overall, I would say
5 that we are talking in that range.
6 MR. DIMUZIO: Objection. Form.
7 BY MR. OCONNELL:
8 Q The carcinogenicity of asbestos is a dose
9 response issue; is that still true?
10 A Yes.
11 MR. DIMUZIO: Objection. Form.
12 BY MR. OCONNELL:
13 Q And generally speaking, would you agree that
14 there is a threshold of exposure below which
15 mesothelioma or, for that matter, any asbestos-related
16 disease does not occur?
17 MR. DIMUZIO: Objection. Form.
18 THE WITNESS: My opinion is that there
19 probably is, but we have not been able to identify it.
20 BY MR. OCONNELL:
21 Q Have you ever met Mr. Reese in this case?
22 A No.
23 Q Have you done any evaluation of any sources
24 of alternate occupational exposure to asbestos that he
25 may have had during his lifetime?
18
1 A Only through the depositions I have read. I
2 havent done any independent research beyond that.
3 Q Mr. Reese spent much of his lifetime in the
4 southwestern Ohio area. I know that earlier in your
5 career at DHS, or NIOSH, one of the two, you have done
6 some site studies, and investigations of various
7 places.
8 And I am curious as to whether or not,
9 during that part of your career, you ever investigated
10 or inspected any facility that manufactures friction
11 products for automobiles.
12 A Well, during my career at NIOSH, yes, I have
13 looked at the Raybestos-Manhattan facility in Manheim,
14 Pennsylvania. I did both industrial hygiene, medical
15 and epidemiological evaluation of that facility.
16 It was a sister facility to another facility
17 that was in Charleston, South Carolina. But the
18 facility in Manheim actually made friction products,
19 which was not the case in South Carolina. But they
20 were both Raybestos facilities.
21 The plant in Manheim did both textile and
22 friction products. So I have visited a facility that
23 has manufactured, and studied a facility that has
24 manufactured friction products.
25 Q Are there any published or written studies or
19
1 conclusions based upon your evaluation of the Raybestos
2 plants that you have described?
3 A Yes. The latest publication on that was in
4 1979. It is listed in my CV. Its author, senior
5 author, is Robinson, and I am the second author.
6 Q The work being done at the Raybestos plant
7 was the manufacture of friction products, not the
8 application or removal of such finished products from
9 automobiles; is that correct?
10 A That is correct. This is new product
11 manufacturing.
12 Q Do you recall offhand the results of your
13 survey at the Raybestos plants, that would be
14 significant from an epidemiological point of view?
15 A We found in excess — well, asbestosis, lung
16 cancer, and mesothelioma. In the 1979 report, we
17 reported 17 mesotheliomas. Again, this plant was a
18 mixed plant, because it had textile and friction. So
19 that study did not break it out by whether or not the
20 mesotheliomas were in the friction or the textiles,
21 because there was a lot of cross work between workers
22 between one part of the plant and the other part of the
23 plant.
24 Q Any other friction product factories,
25 manufacturing facilities, that come to mind?
20
1 A That is the main one I can think of. There
2 may have been others that I went to, but I spent so
3 much time at that facility, that its the one that pops
4 to mind the quickest.
5 Q Do you remember when you were there,
6 approximately?
7 A I was there in, I think the first time was
8 71. I probably spent about 10 to 12 weeks at that
9 plant doing the studies in 71 and 72.
10 Q Has any of your investigational history
11 involved facilities where automobiles are repaired as a
12 primary task in that facility or in that building?
13 A Not me personally, but NIOSH and people that
14 I worked with and supervised have done this.
15 Q Are those reports mentioned in your CV?
16 A I dont think so, no, because I didnt
17 actually do the studies, they were just under my
18 supervision.
19 Q You testified previously the relative risk of
20 contracting mesothelioma by brake mechanics is
21 relatively low when compared to other occupations; does
22 that remain your position?
23 MR. DIMUZIO: Objection. Form.
24 THE WITNESS: Yes.
25 BY MR. OCONNELL:
21
1 Q The — you were involved, as I understand
2 it — and we talked a little bit about this in the Cox
3 case — in the first intelligence bulletin that was
4 published by NIOSH with regard to brakes in 1975; is
5 that correct?
6 A Yes, I was.
7 Q To your knowledge, was that the first
8 governmental publication with respect to the subject of
9 asbestos in automobile friction materials?
10 A It certainly was from NIOSH. I believe it
11 was governmentwide, but at least from NIOSH it was. I
12 have some comments about that in my PowerPoint
13 presentation.
14 Q To your knowledge, when did NIOSH next issue
15 a publication with respect to friction products and
16 asbestos relating to automobiles, after the 75 paper?
17 A You know, I am not sure that anything else
18 was issued, other than mentioning it when we testified
19 before OSHA in support of their standards, or to EPA in
20 support of their — what was it called, the yellow
21 book –
22 Q You mean the gold book?
23 A Gold book, Im sorry. I knew it was close to
24 that color. But we didnt put out any official
25 publications like the current intelligence bulletin.
22
1 Q The purpose of the 75 paper was to do what?
2 A The purpose of the 75 paper was to alert
3 people that were involved in brake repair, of the
4 potential from exposure to asbestos, and to share the
5 information that we had received from both industry and
6 academia about asbestos release during brake repair
7 work.
8 We had brought together both industry and
9 academia to meet with us and to share their results,
10 and then we put the bulletin together to provide that
11 information and to provide recommendations on how
12 workers could protect themselves and prevent exposure
13 to asbestos during brake repair work.
14 Q At the time the 75 paper was written, who
15 was its primary intended readership?
16 A The intended readership, or Current
17 Intelligence Bulletin, would have been the arena of
18 mechanics and brake repair shops. NIOSH had a
19 distribution policy of trying to identify, through
20 either Department of Labor, statistical information
21 where these were located, and then we tried to send the
22 CIB out to those shops so that they would have it.
23 Sometimes we send it to a broader audience
24 than we would have intended, but that was who it was
25 intended to.
23
1 Q The 75 paper did not discuss matters
2 relative to amounts of asbestos exposure which may be
3 experienced by a brake mechanic, and only talked about
4 the potential for asbestos release when removing
5 friction products; is that fair?
6 A I think it actually did have some of the
7 information that was gained from Mount Sinai. I would
8 have to go back to the CIB, but I think it did have
9 some of their measurements that were listed in the
10 paper, in the CIB. I would have to go back and look,
11 though. It may be in my PowerPoint, and I could answer
12 that right now, if youd let me just take a look.
13 Q Sure.
14 A Yes, in the — actually, we talked about –
15 in the bulletin, we talked about average peak asbestos
16 air concentrations were 10.5, 3.75, and 37.3 fibers
17 greater than 5 microns in length per milliliter, and we
18 talked about — I guess from my PowerPoint, that is the
19 only thing that I see, it gives numbers and then we
20 referred to the Rohl, R-O-H-L, paper, where that
21 information came from.
22 Q Do you know whether or not the 75 bulletin
23 would have been sent to, among other intended readers,
24 major oil distribution companies in the United States?
25 A I cant answer that for sure. But the intent
24
1 was to do that, but I was not involved in the
2 distribution process.
3 Q Who determined the distribution of the 75
4 paper?
5 A At that time that was the division of
6 technical services. This would be prepared and then
7 given to the Division of Technical Services, who had
8 the NIOSH distribution list, and they would have the
9 responsibility of getting this out to the intended
10 audience.
11 Q We talked earlier about exposure to friction
12 materials as being a relatively low-risk exposure to
13 brake mechanics. Does the risk increase if the
14 exposure to different fiber types becomes involved?
15 MR. DIMUZIO: Objection. Form.
16 THE WITNESS: I think the risk from
17 mesothelioma would increase if different fiber types
18 are involved. But again, it is dependent upon the
19 dose. If you get a low dose of one fiber type, say,
20 the amphiboles, but a very high dose of the serpentine
21 or chrysotile, you may have equal risk.
22 But I dont think anyone has really measured
23 that in the brake themselves, but certainly if you do
24 have amphiboles, it may put that brake product in a
25 position of producing a higher risk. But I am not sure
25
1 that has been studied within the brake product itself.
2 BY MR. OCONNELL:
3 Q It is not something you studied personally?
4 A No, it has been studied individual fiber
5 types in other cohort studies, but I dont think it has
6 been studied in brake mechanics.
7 Q Do you understand the process of
8 forsterization?
9 A I do.
10 Q Describe your understanding of that, please.
11 A What happens is when the brake gets up to a
12 temperature of around 600 degrees, the chrysotile
13 starts to dry out and dehydrate, and it breaks down
14 into a material that is called forsterite, which is
15 different than asbestos.
16 There have been some papers that say that
17 this occurs at a lower temperature. I think Langer has
18 actually come out and said this can occur at a much
19 lower temperature. Im not sure I know exactly what
20 the temperature is. But the forsterite is then
21 rendered a chrysotile that converts itself to form an
22 inert product, which, to my knowledge, has no potential
23 of causing disease.
24 Q Do you have any particular knowledge, with
25 respect to the fiber type used in automotive friction
26
1 products, as to brake shoes or pads or clutch spaces?
2 A Most of the material was chrysotile,
3 principally because it didnt score or scar the brake
4 lining. But there have been some contentions that in
5 some applications, there have been crocidolite.
6 I dont know for sure about that. But the
7 majority of the brake material was chrysotile, just
8 because of the properties of the chrysotile and not
9 scoring the brake lining of the drum.
10 Q Are you personally trained to fix cars?
11 A No.
12 Q Ever changed brakes yourself?
13 A No.
14 Q What about a clutch?
15 A No.
16 Q I would assume you do not intend to offer
17 testimony in this case with respect to fiber type
18 content in friction products being other than
19 chrysotile, based upon your own personal knowledge and
20 research?
21 MR. DIMUZIO: Objection. Form.
22 THE WITNESS: Based upon my own personal
23 knowledge, I would say the majority of fibers are
24 chrysotile. And that is really my testimony.
25 Now whether or not it is contaminated with
27
1 tremolite, that goes along with the chrysotile
2 testimony.
3 BY MR. OCONNELL:
4 Q Is that a matter you personally have studied?
5 A I havent personally studied it. I have read
6 of others that have studied it. That is really beyond
7 the scope of being an epidemiologist.
8 Q To the extent that you have read on it, do
9 you consider any particular papers or studies to be
10 particularly authoritative or reliable, with respect to
11 the tremolite issue?
12 A I think that Dr. Dodson has published on this
13 area, and I think in my brake paper I may have
14 mentioned some other studies. But they would be
15 included in that.
16 Q Back to the forsterization issue for a
17 moment, with respect to the dust that remains in the
18 brake area following forsterization when encountered by
19 a mechanic, potentially.
20 How much of that dust do you believe remains
21 asbestos, if any?
22 MR. DIMUZIO: Objection. Form.
23 THE WITNESS: It varies. Many of the studies
24 that I have looked at have said that less than 1
25 percent remain asbestos.
28
1 The Rohl Study — again, its R-O-H-L — that
2 looked at — it said that it was a much higher
3 percentage, maybe, 3 or 4 or 5 percent. It really
4 depends upon where the sample is taken, if it is a bulk
5 sample or airborne sample. For example, the Lynch
6 paper from the U.S. Public Health Service where he
7 studied automobiles next to a freeway, he concluded, I
8 think, it was less than 1 percent.
9 But then the Rohl Study that went into actual
10 plants or service stations where it was being worked
11 on, actually found a higher percentage when they took
12 bulk samples out of the drum itself.
13 But it is usually a very low percentage.
14 BY MR. OCONNELL:
15 Q We were provided some materials by
16 Mr. Dimuzios office in this case. I just want to go
17 over them real briefly.
18 First of all, you have not written a
19 specific report for this case, to the best of my
20 knowledge; is that true?
21 A That is correct.
22 Q What we did receive was a copy of your
23 10/5/2006 CV, which I would assume will be supplemented
24 by what we got today, if it is a newer version.
25 And then the Lemen Asbestos Timetable
29
1 through April of 2003 — with respect to the timetable,
2 Doctor, have you updated that document since this one
3 was published?
4 A I have one — the latest update I have is
5 that one, I believe.
6 Q The 03 one?
7 A Yes.
8 Q To the extent that there may be a newer one,
9 if you would be kind enough to take a look?
10 A I will, but I dont think there is. I
11 havent done anything on it since then.
12 Q That is fine. The other part of the report
13 we received was a copy of your 2004 paper, again, which
14 we have discussed and which we made an exhibit in this
15 case.
16 A That is a different paper. That is the paper
17 on chrysotile.
18 Q Im sorry.
19 A And then the brake paper is after that.
20 Q Ive got the brake paper after that. The
21 separate article would be the commentary article?
22 A Yes, sir.
23 Q And that is with respect to the issue of
24 chrysotile as a causative agent for meso?
25 A Yes, sir.
30
1 Q And that was also published in 2004; correct?
2 A Yes.
3 Q We then received a copy of two depositions,
4 or trial transcripts, as the case may be. One is your
5 testimony of February 24, 2003, in the Connie Beal,
6 B-E-A-L, Bobbie Bailey, B-A-I-L-E-Y, and Shapiro cases
7 in Cleveland, Ohio.
8 The second transcript we received was a copy
9 of your testimony on May 15, 2003, given in the
10 Maiorano, M-A-I-O-R-A-N-O, trial, likewise in
11 Cleveland.
12 First of all, have I accurately described
13 what was provided to us, with respect to your opinions
14 in this case?
15 A Yes.
16 MR. DIMUZIO: Objection. Form.
17 BY MR. OCONNELL:
18 Q And you understand that your opinions, which
19 would be expressed in this case if it is tried by
20 virtue of our local rule, would have been contained or
21 set forth in either of the deposition transcript or the
22 trial transcript?
23 A In those two, yes, there have been other
24 trials since then.
25 Q I understand. But these were the two that we
31
1 were given –
2 A Yes.
3 Q Doctor, have you ever testified in asbestos-
4 related matters in a trial involving foreign automobile
5 manufacturer, such as in my particular case,
6 Volkswagen?
7 A I have never given specific testimony about
8 Volkswagen, that I can recall. They may have been
9 involved in trials that I have been involved in, but I
10 dont think Ive ever testified about Volkswagen
11 specifically.
12 Q Are you aware of whether youve ever
13 testified in a trial where Volkswagen was a defendant
14 in an asbestos case relating to friction exposure?
15 A Again, I am not sure because many of the
16 cases I testify in have multiple defendants, but I can
17 tell you, with a great deal of certainty, that I dont
18 think I have ever given any opinions about Volkswagen,
19 per se.
20 Q I would assume by virtue of that answer that
21 you have never inspected or investigated a Volkswagen
22 facility where friction products may have been made or
23 stored?
24 A Thats correct.
25 Q We talked earlier about the relative low risk
32
1 of developing mesothelioma by brake workers. Who are
2 the higher risk groups in your estimation, starting
3 with the highest in terms of risk of developing
4 mesothelioma among the trades?
5 MR. DIMUZIO: Objection. Form.
6 THE WITNESS: Here again, I think it is all a
7 matter of dose. And those trades that generally have,
8 on average, a higher dose, are those that are directly
9 exposed to asbestos through high content asbestos
10 products, such as insulating materials.
11 And insulators have traditionally had a very
12 high risk of developing mesothelioma, as have
13 construction workers, shipyard workers. But it can
14 happen that various trades can have high risk if they
15 have high exposure.
16 So the trade itself does not make a great
17 deal of difference; it is really the exposure that
18 occurs within the trade.
19 BY MR. OCONNELL:
20 Q You have testified previously that the higher
21 risk trades tend to be construction workers and
22 shipyard workers at the top end; does that remain –
23 A Yes, I have.
24 Q That remains your testimony today?
25 A Yes, sir.
33
1 Q As we sit here today, there is no
2 peer-reviewed epidemiological study which identifies an
3 increased risk of developing mesothelioma in brake
4 mechanics, due to the their work with friction
5 products; does that remain true?
6 MR. DIMUZIO: Objection. Form.
7 THE WITNESS: Not that I am aware of.
8 MR. OCONNELL: I believe that thats all the
9 questions I have for Dr. Lemen.
10 THE WITNESS: Thank you.
11 EXAMINATION
12 BY MR. RIMMEL:
13 Q Hi, Dr. Lemen. My name is Brad Rimmel. I
14 also got to meet you up in Cleveland a few months ago.
15 A Right.
16 Q Ive just got a few questions, actually.
17 Similar to Mr. OConnell, in this instance I likewise
18 represent some of the Japanese auto manufacturers. And
19 I think I do know the answer, but Id like to just get
20 it on the record and make sure theres no surprises.
21 Do you have a recollection of ever giving
22 any specific testimony regarding Mitsubishi?
23 A No, I have not.
24 Q Likewise for Nissan?
25 A No, I have not.
34
1 Q And likewise for Toyota?
2 A No, I have not.
3 Q Fair enough, sir. Then is it a fair
4 assessment to say that you will not give any specific
5 testimony at trial regarding those three manufacturers?
6 MR. DIMUZIO: Objection. Form.
7 THE WITNESS: Not unless I am given further
8 information than — you know, I might mention them
9 because they are mentioned within the testimony of the
10 plaintiff in this case, but I dont have any company-
11 specific information.
12 MR. RIMMEL: Very good. Thank you,
13 Dr. Lemen.
14 MR. OCONNELL: Anybody on the phone?
15 MS. GREENWELL: I have a few questions.
16 EXAMINATION
17 BY MS. GREENWELL:
18 Q This is Stacey Greenwell. Dr. Lemen, the
19 same question with respect to Honda — do you have any
20 intention of giving any specific testimony with respect
21 to Honda?
22 A No, I dont, other than what I just said that
23 I might mention it, because it is mentioned by the
24 plaintiff in their deposition.
25 Q Do you have any recollection of ever giving
35
1 any specific testimony with regard to Honda in the
2 past?
3 A No, I have not.
4 MS. GREENWELL: Thank you very much. I have
5 nothing else.
6 (Off the record.)
7 MR. OCONNELL: I also want to mark this as
8 Exhibit 11.
9 Thank you, Dr. Lemen.
10 (Exhibit 11 was marked for
11 identification.)
12 (Deposition concluded at 9:50 a.m.)
13
14
15
16
17
18
19
20
21
22
23
24
25
36
1 SIGNATURE WAIVED
2 IN THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, OHIO
3
LOWELL WAYNE REESE, et al., )
4 )
Plaintiff, )
5 ) CASE NO. CV-588713
vs. )
6 )
A.C. DELCO, et al., )
7 )
Defendants. )
8
9 – - -
10
11 REPORTERS CERTIFICATION
12 DEPOSITION OF DR. RICHARD LEMEN
13 TAKEN ON AUGUST 29, 2007
14
- – -
15
16 I, Meredith B. Cohen, Certified Shorthand Reporter
17 in and for the State of Georgia, hereby certify to the
18 the following:
19 That the witness, DR. RICHARD LEMEN, was duly
20 sworn by the officer and that the transcript of the
21 oral deposition is a true record of the testimony given
22 by the witness;
23 That examination and signature of the witness to
24 the deposition transcript was waived by the witness and
25 agreement of the parties at the time of the deposition;
37
1 That the original deposition was delivered by
2 certified mail/hand delivery to
3 for safekeeping on __________________________;
4 That $____________ is the deposition officers
5 charges for preparing the original deposition
6 transcript and any copies of exhibits, charged
7 to pro rata.
8 That pursuant to information given to the
9 deposition officer at the time said testimony was
10 taken, the following includes all parties of record:
11 FOR THE PLAINTIFF,
GARY M. DIMUZIO, ESQ.
12 LAW OFFICES OF GARY DIMUZIO
P.O. BOX 272909
13 HOUSTON, TEXAS 77277
Taxable Cost: $____________
14 FOR THE DEFENDANT, CHRYSLER, LLC, VOLKSWAGEN OF
AMERICA, INC.,
15 MATTHEW C. OCONNELL, ESQ.
SUTTER, OCONNELL & FARCHIONE
16 3600 ERIEVIEW TOWER
1301 EAST 9TH STREET
17 CLEVELAND, OHIO 44114
Taxable Cost: $____________
18 FOR THE DEFENDANTS, GENERAL MOTORS CORP., FORD
MOTOR COMPANY, TOYOTA MOTOR SALES USA, INC., NISSAN
19 NORTH AMERICA, INC., MITSUBISHI NORTH AMERICA,
BRAD RIMMEL, ESQ.
20 ROETZEL & ANDRESS
222 SOUTH MAIN STREET
21 AKRON, OHIO 44308
Taxable Cost: $____________
22
23
24
25
38
1 FOR THE DEFENDANT, AMERICAN HONDA MOROTOR CO.,
INC.,
2 STACEY A. GREENWELL (PALMER), ESQ.
THOMPSON HINE, LLP
3 3900 KEY CENTER
127 PUBLIC SQUARE
4 CLEVELAND, OHIO 44114
Taxable Cost: $____________
5 FOR THE DEFENDANT, HONEYWELL INTERNATIONAL, INC.,
SUCCESSOR-IN-INTEREST TO THE BENDIX CORPORATION,
6 JOYCE JACKSON WOOD, ESQ.
WILCOX AND SAVAGE, P.C.
7 ONE COMMERCIAL PLACE, SUITE 1800
NORFOLK, VIRGINIA 23510
8
KAREN L. MASCIO, ESQ.
9 WILLMAN & ARNOLD, LLP
705 MCKNIGHT PARK DRIVE
10 PITTSBURGH, PENNSYLVANIA 15237
Taxable Cost: $____________
11 FOR THE DEFENDANT, BORG WARNER,
JOHN W. CRIMANDO
12 CRIMANDO & CLELAND, P.C.
10 SOUTH MAIN, SUITE 301
13 MT. CLEMENS, MICHIGAN 48043
Taxable Cost: $____________
14
15 That a copy of this certificate was served on all
16 parties shown herein.
17 I further certify that I am neither counsel for,
18 related to, nor employed by any of the parties in the
19 action in which this proceeding was taken, and further,
20 that I am not financially or otherwise interested in
21 the outcome of the action.
22
23 Sworn to by me this _______________ day of
24 _____________________, 2007.
25
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