Union Carbide and Asbestos Exposure

1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: MIDDLESEX COUNTY
2

3 RONALD DEMAYO and DOCKET NO.: L-8044-06 AS
FLORENCE DEMAYO,
4 Husband and Wife,
Plaintiffs,
5 vs.

6 3M CORPORATION, et als.,
Defendants.
7 ————————————
EARLINE KLEMM and JOSEPH DOCKET NO.: L-8682-06 AS
8 KLEMM, Husband and Wife,
Plaintiffs,
9
vs.
10 BORG-WARNER INCORPORATED,
et als.,
11 Defendants.
————————————
12 WILFRIED BERNDT, Executor of DOCKET NO.: L-2582-06 AS
the Estates of FRITZ BERNDT
13 and IRMGARD BERNDT,
Plaintiff,
14 vs.

15 ADLER LUMBER, et als.,
Defendants.
16 ———————————–
VIDEOTAPE
17 (CAPTION CONTINUED ON PAGE 2) DEPOSITION UNDER
ORAL EXAMINATION
18 OF
JOHN E. WALSH
19

22 BRODY DEPOSITION SERVICES
Certified Shorthand Reporters and Videographers
23 90 Woodbridge Center Drive, Suite 220
Woodbridge, New Jersey 07095
24 (732) 549-5737

1 CAPTION CONTINUED:
————————————–
2
JOHN PICINIC and ANA PICINIC, DOCKET NO.: L-888-06
3 Husband and Wife,
Plaintiffs,
4 vs.

5 GEORGIA PACIFIC CORPORATION,
et als.,
6 Defendants.
————————————-
7 ANGEL FERNANDEZ and ESPERANZA DOCKET NO.: L-9067-06 AS
FERNANDEZ, Husband and Wife,
8 Plaintiffs,
vs.
9 BORG-WARNER INCORPORATED,
et als.,
10 Defendants.
————————————-
11

13 Transcript of the deposition of the

14 witness, called for Oral Examination in the

15 above-captioned matter, said deposition being

16 taken pursuant to Superior Court Rules of Practice

17 and Procedure, by and before MARC BRODY, a Notary

18 Public and Certified Shorthand Reporter of the

19 State of New Jersey, at the offices of ORRIK,

20 HERRINGTON & SUTCLIFFE, 666 Fifth Avenue, New York,

21 New York, on Thursday, June 7, 2007 commencing at

22 approximately 9:00 in the forenoon.

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

3 COHEN, PLACITELLA & ROTH

4 115 Maple Avenue

5 Red Bank, New Jersey 07701

6 (732) 747-9003

7 BY: CHRISTOPHER PLACITELLA, ESQ.

8 Attorneys for Plaintiffs

10 MARON, MARVEL, BRADLEY & ANDERSON, P.A.

11 1835 Market Street

12 Suite 2705

13 Philadelphia, Pennsylvania 19103

14 (215) 789-3555

15 BY: BENJAMIN L. RANDALL, ESQ. (Via Telephone)

16 Attorneys for Defendant, Carborundum

18 MCGIVNEY & KLUGER, P.C.

19 23 Vreeland Road, Suite 220

20 Florham Park, New Jersey 07932

21 (973) 822-1110

22 BY: JENNIFER HALLY, ESQ.

23 Attorneys for Defendant, DAP, Inc.

1 A P P E A R A N C E S (Cont’d):

3 MARKS, O’NEILL, O’BRIEN & COURTNEY, P.C.

4 6981 North Park Drive, Suite 300

5 Pennsauken, New Jersey 08109

6 (856) 663-4300

7 BY: SEAN X. KELLY, ESQ.

8 Attorneys for Defendant, Georgia-Pacific

10 HOFHEIMER, GARTLER & GROSS

11 539 Fifth Avenue

12 New York, New York 10036

13 (212) 897-7916

14 BY: LORIANNE WOLSELEY, ESQ. (Via Telephone)

15 Attorneys for Defendant, Rapid American

18 MORGAN, MELHUISH & ABRUTYN

19 651 West Mount Pleasant Avenue, Suite 200

20 Livingston, New Jersey 07039-1673

21 (973) 863-7622

22 BY: RICHARD HULL, ESQ.

23 Attorneys for Defendant, Ciba-Geigy/Novartis

1 A P P E A R A N C E S (Cont’d):

3 DARGER & ERRANTE, LLP

4 116 East 27th Street @ Park Avenue

5 New York, New York 10018

6 (212) 452-5300

7 BY: MICHAEL T. LEWANDOWSKI, ESQ.

8 Attorneys for Defendant, Pep Boys

10 PICILLO, CARUSO & O’TOOLE, P.C.

11 371 Franklin Avenue

12 Nutley, New Jersey 07110

13 (973) 667-8100

14 BY: STEVEN WEINER, ESQ.

15 Attorneys for Defendant, Union Carbide

17 STEIN, MCGUIRE, PANTAGES & GIGL

18 354 Eisenhower Parkway

19 Livingston, New Jersey 07039

20 (973) 992-1100

21 BY: EMILY S. BARNETT, ESQ.

22 Attorneys for Defendant, Simon Property Group

1 A P P E A R A N C E S (Cont’d):

3 POTTERS & DELLA PIETRA, LLP

4 100 Passaic Avenue

5 Fairfield, New Jersey 07004

6 (973) 575-5340

7 BY: THOMAS F. VERRASTRO, ESQ.

8 Attorneys for Defendant, Standard Supply

10 HARRIS BEACH, PLLC

11 805 Third Avenue

12 New York, New York 10022

13 (212) 687-0100

14 BY: DEVI SHANMUGHAM, ESQ.

15 Attorneys for Defendant, Kentile Floors, Inc.

17 GLASSER & GLASSER, P.L.C.

18 Crown Center

19 580 E. Main Street, Suite 600

20 Norfolk, Virginia 23510

21 (757) 625-6787

22 BY: MARC GRECO, ESQ.

23 Attorneys for Plaintiff, Ted Gray (VA Case)

1 A P P E A R A N C E S (Cont’d):

3 BAKER & BOTTS, LLP

4 30 Rockefeller Plaza

5 New York, New York 10112

6 (212) 408-2500

7 BY: KEVIN JORDAN, ESQ

8 Attorneys for Defendant, Union Carbide

10 PIERCE, HERNS, SLOAN & MCLEOD

11 The Blake House

12 321 E. Bay Street

13 Charleston, South Carolina 29413

14 (866) 721-5826

15 BY: JAMES KENNEDY, ESQ. (Gray Case, VA)

16 Attorneys for Defendant, Union Carbide

17 Ford Motor Co.

19 SPOTTS, FAIN, CHAPPELL & ANDERSON, P.C.

20 411 E. Franklin Street, Suite 601

21 Richmond, Virginia 23219

22 (804) 697-2090

23 BY: HENRY N. WARE, ESQ. (Via Telephone)

24 Attorneys for Defendant, CBS Corporation

1 A P P E A R A N C E S (Cont’d):

3 JUNKER, TADDEO & STURM, PLC

4 17 West Cary Street Road

5 Richmond, Virginia 23220

6 (804) 344-8540

7 BY: MATTHEW D. JOSS, ESQ. (Gray Case, VA)

8 Attorneys for Defendant, GE/Certainteed

10 HARRIS BEACH, PLLC

11 100 Wall Street

12 New York, New York 10005

13 (212) 687-0100

14 BY: DEVI SHANMUGHAM, ESQ.

15 Attorneys for Defendant, Kentile Floors

17 GREENBERG TRAURIG, LLP

18 200 Park Avenue

19 New York, New York

20 (973) 596-4500

21 BY: MARISSA BANEZ, ESQ.

22 Attorneys for Defendant, Robert A. Keasbey

1 A P P E A R A N C E S (Cont’d):

3 MORGAN, LEWIS & BOCKIUS, LLP

4 502 Carnegie Center

5 Princeton, New Jersey 08540-6241

6 (609) 919-6623

7 BY: CHRISTOPHER IANNICELLI, ESQ. (Via Telephone)

8 Attorneys for Defendant, TH Agriculture and Nutrition, LLC

10 HOAGLAND, LONGO, MORAN, DUNST & DOUKAS

11 40 Paterson Street, P.O. Box 480

12 New Brunswick, New Jersey 08903

13 (732) 545-4717

14 BY: SHERYL A. FAY, ESQ. (Via Telephone)

15 Attorneys for Defendant, Borg-Warner

17 GARRITY, GRAHAM, MURPHY, GAROFALO & FLINN

18 One Lackawanna Plaza, P.O. Box 4205

19 Montclair, New Jersey 07042-8205

20 (973) 509-7500

21 BY: KIMBERLY N. COOKE, ESQ. (Via Telephone)

24 ALSO PRESENT: ED GIGLIOTTI, VIDEOGRAPHER
CERTIFIED VIDEO
25

1 I N D E X
Page
2 JOHN E. WALSH

3 Direct by Mr. Placitella 11
Cross by Mr. Greco 249
4

5 E X H I B I T S

6 P-1/P-2 Deposition Notice 11

7 P-3 Memo dated 3/25/74 62

8 P-4 Chrysotile Asbestos Market Analysis 62

9 P-5 Memo dated 2/1/78 62

10 P-6 Memo dated 6/22/72 62

11 P-7 Letter dated 8/3/73 w/attached report 62

12 P-8 Memo dated 7/25/77 105

13 P-11 Technical Information Bulletin 136

14 P-13 Letter dated 6/7/67 162

15 P-13A Letter dated 6/7/67 164

16 P-14 Document dated 12/67 by I.C. Sayers 154

17 P-18 Asbestos Toxicology Report 187

18 P-19 MSDS dated 9/1/72 192

19 P-20 Memo dated 12/12/72 207

20 P-21 Memo dated 9/29/75 211

21 P-22 Letter dated 3/10/72 217

22 P-23 Document dated 4/6/73 225

23 P-24 Memo dated 5/22/73 233

24 NOTE: Exhibits 9,10,12,15,16 and 17 were marked,
not used by counsel, and retained by counsel.
25

1 MR. PLACITELLA: Mark these P-1 and

2 P-2, please.

3 (The documents are marked as P-1

4 and P-2 for Identification.)

6 MR. JOSS: This is Matthew Joss with

7 law firm of Junker, Taddeo & Sturm, from Richmond.

8 I’m appearing in the Theodore Gray versus

9 CertainTeed Corporation case pending in the Superior

10 Court for the City of Portsmith, Virginia.

11 I want to lodge an objection. This

12 deposition was not noticed for video tape in the

13 Gray case and to the extent that’s not proper under

14 Virginia statute I would have an objection to the

15 use of the video transcript in the Gray case only.

16 MR. WARE: Jerry Ware. I’m on for

17 CBS in the Gray case only and I adopt that

18 objection. Thank you.

19 MR. RANDALL: Jamie Randall. I have

20 Carborundum in the Klemm case and my participation

21 in this deposition by telephone should not be

22 construed as a waiver of my client’s right to proper

23 service or any other defenses. Thanks.

24 THE VIDEOGRAPHER: It is

25 approximately 9:12 a.m. on Thursday June 7, 20007.

1 My name is Ed Gigliotti representing Certified

2 Video, Lawrenceville, New Jersey.

3 At this time swear in the witness.

5 J O H N E. W A L S H,

6 1325 Land O’Lakes Drive,

7 Roswell, Georgia, sworn.

9 DIRECT EXAMINATION BY MR. PLACITELLA:

11 Q. Good morning, Mr. Walsh.

12 A. Good morning.

13 Q. Welcome back to the metropolitan area.

14 A. Thank you. Glad to be here.

15 Q. My name is Chris Placitella, as you know.

16 I’m here to ask you some questions today.

17 A. Okay.

18 Q. I take it I don’t need to go over

19 instructions for a deposition. You have testified

20 for Union Carbide in depositions and trials before

21 this, correct?

22 A. Yes.

23 Q. I put in front of you what’s been marked

24 as P-2, which was the original Deposition Notice in

25 this case, and the notice asks that Union Carbide

1 produce its representative with the most knowledge

2 of Union Carbide’s historical knowledge of the

3 potential dangers of asbestos exposure, and a

4 representative with the most knowledge concerning

5 the decision to include or not include information

6 about the potential dangers of asbestos exposure on

7 defendants’ asbestos-containing products.

8 Do you understand that?

9 A. Yes, I do.

10 Q. And you are the person that Union Carbide

11 produced in response to this notice.

12 A. That is correct.

13 Q. Can you tell me what you did to

14 investigate the areas of examination set forth in

15 this notice?

16 A. Well, I reviewed various documents, one of

17 which was John Myers testimony in the Kelly Moore

18 trial. I reviewed Dr. Dernehl’s testimony. I

19 reviewed the Ian Sayers deposition. I looked at

20 internal correspondence, including call reports. I

21 also looked at — was down at the depository in this

22 building here on the second floor and went through

23 and familiarized myself with that, pulled a couple

24 of boxes and went randomly through them.

25 I also looked at and pulled from the boxes

1 you had sent into the Baker & Botts people in

2 Houston and randomly pulled some papers, looked at

3 them and set them back in there.

4 Q. Did you ever make a list of was looked at?

5 A. No.

6 Q. Who decided what you were going to look

7 at?

8 A. Well, it was kind of a mutual thing. Some

9 of the documents were given to me by the attorneys,

10 some of them I requested by myself. I familiarized

11 myself because I wanted to know my way around the

12 document room in the repository here. So I got

13 the index and grabbed a couple of boxes and made sure

14 that it lined up with the index information.

15 Q. When you say index, what do you mean?

16 A. There’s an index for all the boxes in the

17 repository.

18 Q. If there’s a document that you need to

19 access during the break, you would know where to get

20 it?

21 A. I think I could find it, yes.

22 Q. How long a process was that? How long did

23 it take?

24 A. In the repository?

25 Q. Just in general, overall.

1 A. I would say somewhere between maybe eight

2 to ten eight hour periods. Days. Eight hour

3 periods per day.

4 Q. So about ten days, eight hours a day?

5 A. Correct. That’s rough.

6 Q. How long have you been up here doing this?

7 A. How long have I been up here? This is

8 the, I believe, the second trip that I’ve made here.

9 I also made a trip to Houston.

10 Q. What did you do in Houston?

11 A. That’s where I went through the documents

12 that you had sent in there. That’s where I read –

13 also I forgot Dr. Hall’s, Tom Hall’s testimony.

14 Q. You have spent somewhere between 80 and

15 100 hours preparing for this deposition?

16 A. I would say closer to 80.

17 Q. Now, did you speak with any witnesses as

18 part of your investigation?

19 A. No.

20 Q. Did you speak with any current or former

21 Union Carbide employees?

22 A. No, I did not.

23 Q. How many depositions have you given so far

24 in asbestos litigation on behalf of Union Carbide?

25 A. I would say roughly a dozen depositions.

1 Q. How many trials have you appeared at?

2 A. I would say somewhere between 16 and 18.

3 In that neighborhood.

4 Q. Between 16 and 18 trials and a dozen

5 depositions?

6 A. Correct.

7 Q. Do you know anything about the clients I

8 represent?

9 A. No, I don’t.

10 Q. Do you know that they have mesothelioma?

11 Do you know that much?

12 MR. JORDAN: Objection to the form of

13 the question.

14 A. We sold our product to the manufacturer

15 who made a product. We are a minority supplier to

16 him. His product went into the product that was

17 sold to the contractor who I assume your client

18 worked for. I’m not positive of that. That’s what

19 I assumed is the case.

20 Q. My question to you is simply do you know

21 my clients have mesothelioma?

22 MR. JORDAN: Objection to the form.

23 MR. PLACITELLA: What’s wrong with

24 the form?

25 MR. JORDAN: Irrelevant as it relates

1 to the notice served in this case.

2 MR. PLACITELLA: That is in improper

3 objection under our courts rules.

4 MR. JORDAN: No. That’s okay. I

5 read your court rules. I’m familiar with them.

6 A. I did not know your clients.

7 Q. Were any facts disclosed to you by the

8 lawyers for Union Carbide not connected with any

9 legal advice?

10 MR. JORDAN: Objection to the form.

11 A. Would you clarify that? I’m not sure.

12 Q. Did they give you factual information

13 versus legal advice?

14 A. Factual information about what?

15 Q. About Union Carbide, what it did, how it

16 did things?

17 A. Did we look at documents? Yes, I looked

18 at documents.

19 Q. Do you believe you made a good faith

20 effort to investigates all the information available

21 to Union Carbide concerning the subject matter of

22 this deposition?

23 A. I believe so, yes.

24 Q. You started with Union Carbide in 1961?

25 A. Correct.

1 Q. And you started selling asbestos for them

2 sometime in 1972?

3 A. July 1, 1972.

4 Q. Before that you had some tangential

5 involvement in the asbestos business starting

6 somewhere in the later ’60s. Is that fair?

7 A. It was probably closer to ’70. I was

8 working at the Atlanta office of the chemical and

9 plastics division. At that time when the Calidria

10 group first started they did their marketing through

11 the chemical and plastic seals people because there

12 were more of them than there were in the Calidria

13 group which was a very small entity.

14 So as the manager of the Atlanta office,

15 we processed sample requests and sent them off to

16 Niagra Falls for the Calidria people to follow up on

17 and questions about literature and information like

18 that.

19 We were more or less a pass through

20 conduit for the Calidria marketing group at that

21 time.

22 Q. For the benefit of the jury, your

23 educational degree is in what?

24 A. Biology and chemistry. BS.

25 Q. Are there basic principals of consumer

1 protection that you followed when you were part of

2 the Union Carbide Corporation?

3 MR. JORDAN: Objection to the form of

4 the question.

5 A. In what respect? I don’t understand.

6 Q. Did you follow certain standards of

7 ethical business practices when you were selling

8 products?

9 A. Yes, I believe we put safety as a primary

10 issue.

11 Q. I want to ask you some questions and so we

12 all can be clear about what I’m asking you. I want

13 to show you a couple of things, okay?

14 MR. JORDAN: Objection to the side

15 bar comment.

16 Q. Do you agree with this statement, sir,

17 that are Union Carbide should know about the

18 potential hazards caused by its products?

19 A. Yes I do.

20 Q. Do you agree that a company should warn

21 about the dangers associated with the use of its

22 products?

23 A. Yes, I do.

24 Q. Do you agree that Union Carbide has a

25 responsibility to transmit what Union Carbide knows

1 about the product dangers to the customers it calls

2 on?

3 A. Yes. I believe we transmitted information.

4 Q. Do you believe that salesmen for the

5 company have a duty to pass along dangers posed by a

6 product to the customer?

7 MR. JORDAN: Objection to the form of

8 the question. Go ahead.

9 A. Yes, I believe a salesmen should inform a

10 customer if a product is potentially hazardous.

11 Q. Is it important for salespeople to tell

12 customers about the hazards in their products so

13 those customers can then communicate those hazards

14 to the people who buy their products?

15 MR. JORDAN: I think you misspelled

16 hazards. I think that’s a County in Georgia right

17 there.

18 A. Yes.

19 MR. JORDAN: Objection to the form.

20 A. I believe that.

21 Q. A user of Union Carbide’s asbestos should

22 know everything that Union Carbide knew about the

23 dangers of its asbestos. Do you agree with that?

24 MR. JORDAN: Objection to the form.

25 A. No. I have a problem with everything. I

1 don’t believe everything belongs in there. I

2 believe Union Carbide should provide its customers

3 as much information as it has available.

4 Q. Do you agree a company should never

5 mislead its customers about the safety of its

6 products?

7 A. Yes. I would say that’s a true statement.

8 MR. JORDAN: You are videotaping your

9 Power Point Presentation?

10 MR. PLACITELLA: Correct.

11 MR. JORDAN: Formally, for the record,

12 I object to that.

13 Q. Do you agree a company should always tell

14 the truth about the dangers created by the use of

15 its products?

16 A. I believe a company should transmit the

17 information that it has. I don’t believe it should

18 lie, no.

19 Q. And you agree a company should never

20 withhold information about the product’s dangers

21 from consumers?

22 A. I would basically agree with that, yes.

23 Q. Do you agree safety is the primary concern

24 when selling products to consumers?

25 MR. JORDAN: Objection to the form.

1 A. Yes.

2 Q. You agree a company should never put

3 profits before consumer safety?

4 A. I think that’s a reasonable statement,

5 yes.

6 Q. Did you agree, the greater the danger

7 inherent in the product, the stronger the warning

8 necessary?

9 MR. JORDAN: Objection to do form of

10 the question.

11 A. That’s really a vague, vague statement as

12 far as I’m concerned. I don’t know that I can

13 answer that.

14 Q. We will get to that.

15 Do you agree a warning should inform the

16 consumer how to use the product safely?

17 MR. JORDAN: Objection to the form of

18 the question. And the basis is you are getting into

19 expert testimony concerning warnings and he is not

20 an expert.

21 MR. PLACITELLA: All I’m asking what

22 he believes is proper practice.

23 MR. JORDAN: I understand. I made my

24 objection.

25 A. I think the consumers should be advised of

1 any information we have so that a product could be

2 safely handled.

3 Q. Okay. Do you believe a consumer of a

4 Union Carbide asbestos had the right to know about

5 the potential hazards of Union Carbide’s asbestos?

6 A. Yes, I believe that.

7 Q. As Union Carbide learned new information

8 about the hazzards of asbestos, it was Union

9 Carbide’s duty to pass that information on to the

10 customer so the customer could protect himself and

11 others who might be exposed? Do you agree with

12 that?

13 A. To a degree I agree with that because in

14 the asbestos field, when I was there, it was a

15 rapidly changing situation. And what was new today,

16 night have been old news tomorrow. So it changed,

17 month-to-month, day-to-day.

18 Q. And because it was a rapidly changing area

19 it was important to keep the customers up to date?

20 A. We tried our best to do that, yes.

21 Q. It was appropriate for Union Carbide to

22 rely upon Union Carbide for the entire truth about

23 the hazards of products Union Carbide sold. Do you

24 agree with that?

25 MR. JORDAN: Objection to the form of

1 the question.

2 A. Well, in most cases when I went in to sell

3 Calidria asbestos to a customer, he was a user of

4 asbestos prior to my coming in, nothing there, and I

5 don’t know what information he may have had, but

6 certainly as a user for ten years or more, he must

7 have known something about asbestos. I brought him

8 what I had.

9 Q. My question to you, sir, is in conveying

10 information about the asbestos, your responsibility

11 was to tell the whole truth about what you knew?

12 MR. JORDAN: Objection to the form.

13 A. My responsibility was to give the

14 information that I had available to him. I also

15 expected, as a sophisticated company he would also

16 have additional information other than what I solely

17 gave him.

18 Q. When we swear to provide testimony in

19 court, you have done that before, correct?

20 A. Yes.

21 Q. And you stand before a jury and you put

22 your hand up, one hand on the Bible and you say I

23 promise to tell the whole truth and nothing but the

24 truth, correct?

25 A. Yes.

1 Q. Is that was did with your customers?

2 A. Yes, I believe so.

3 Q. Did Union Carbide believe it was

4 appropriate to withhold information about the health

5 hazards of asbestos if it would reduce sales?

6 MR. JORDAN: You might want to read

7 that.

8 MR. PLACITELLA: I’m asking him the

9 questions.

10 MR. JORDAN: Then what is the purpose

11 of the slide show then?

12 MR. PLACITELLA: I’ll get to that.

13 I’m asking him a question now.

14 MR. JORDAN: Okay.

15 MR. PLACITELLA: Read it back,

16 please.

17 A. Union Carbide believed it was appropriate

18 to withhold information about the health hazzards of

19 its asbestos as it would reduce sales. If it would

20 reduce sales.

21 No, I do not believe that was how we

22 conducted our business. I know we didn’t run out as

23 soon as we learned something new and call on every

24 customer and give him that information. There might

25 have been time lags between what we gave the

1 customer information, but we also expected him, as a

2 sophisticated user of asbestos, and as a prior user

3 of asbestos, to also have information that he

4 developed on his own.

5 Q. Was it your belief all your customers had

6 the same level of knowledge that you did concerning

7 the dangers of asbestos?

8 A. I would say most of them were asbestos

9 users that I called on.

10 Excuse me one second. Can I get a glass

11 of water?

12 Q. Sure.

13 In your experience did Union Carbide make

14 any mistakes in marketing asbestos in terms of

15 consumer protection?

16 MR. JORDAN: Objection to the form of

17 the question.

18 A. I don’t know that you could say any

19 company never made a mistake. I think we probably

20 made some mistakes.

21 Q. What were the mistakes that you are aware

22 of?

23 A. One I can think of is there was a speech

24 given by Mr. Myers to the plastic society here where

25 our legal department and our medical department made

1 some comments on it that they thought it was

2 incorrect and Mr. Myers advised people after the

3 fact of the corrections that needed to be made to

4 his presentation. So, if that’s a type of mistake,

5 I would say.

6 Q. Anything other than that?

7 A. Not that I can recall offhand, no.

8 Q. Other than the one instance with Mr. Myers

9 that you just described, did Union Carbide make any

10 mistakes in relaying what it knew about the dangers

11 of asbestos to those people foreseeable exposed to

12 Union Carbide asbestos?

13 MR. JORDAN: Objection to the form of

14 the question. You can answer.

15 A. I don’t know of any particular mistakes

16 made. There was a lot of timing issues on when we

17 put information into people’s hands. We tried to

18 gather it up and rather than piecemeal feed to it

19 people, to put it in an orderly fashion so that they

20 would have a better understanding of it.

21 Q. Is my understanding correct then that all

22 the information, all the actions that Union Carbide

23 did in relation to conveying information about the

24 health hazards related to do asbestos were

25 deliberate and intentional?

1 MR. JORDAN: Objection to form.

2 A. We tried our best to inform our customers

3 what we knew about asbestos and the hazards of the

4 product.

5 Q. Were your actions deliberate and

6 intentional?

7 MR. JORDAN: Objection to form.

8 A. I can only answer that the way I answered

9 it.

10 Q. Did you ever do anything that you didn’t

11 intend to do as it related to users or consumers

12 know about the dangers of the products that you were

13 selling?

14 A. Did I ever do anything I didn’t intend to

15 do?

16 Q. Yes.

17 A. I would say no.

18 Q. When you started with Union Carbide it was

19 the second largest chemical company in the world?

20 A. In 1961, yes, I believe they were a large

21 company. Maybe second, third to Dupont, PPG.

22 Q. About 60,000 employees?

23 A. Roughly, yes.

24 Q. Union Carbide had enough money and

25 resources to conduct whatever investigations into

1 the hazards of the products it was selling that it

2 needed to. Would you agree with that?

3 A. I don’t know that I can respond to that.

4 Q. Were you ever prevented because of

5 resources from doing any research into the dangers

6 of the products you were selling?

7 A. Not that I recall.

8 Q. In fact, Union Carbide had more money and

9 resources than some small countries when you started

10 to work there. Isn’t that true?

11 MR. JORDAN: Objection to the form of

12 the questions. Argumentative.

13 A. It seems a little exaggerated, but I guess

14 you could say that.

15 Q. You had offices all over the world, true?

16 MR. JORDAN: Objection to the form.

17 A. We had office in different countries,

18 correct.

19 Q. When you started in 1972 selling the

20 Calidria product, you were provided with what you

21 believe was up to date knowledge about the potential

22 hazards of asbestos and that also included past

23 information, correct?

24 A. That is correct, Dr. Rhodes provided me,

25 before I even started, with a couple of packages of

1 information which I reviewed and as we made sales

2 calls at the beginning between calls I would get

3 clarification of what I had read and different

4 things.

5 Q. If you weren’t provided the information

6 then you wouldn’t have the ability to relate that

7 information to your customers, correct?

8 A. Well, if I didn’t have it, I wouldn’t have

9 known about it.

10 Q. In 1972, you were told that chrysotile

11 asbestos could cause lung disease and that Union

12 Carbide fiber should be treated like any other

13 chrysotile fiber, true?

14 A. Correct.

15 Q. Now, did you tell that specific

16 information to your customers?

17 A. Well, my business card had it on there,

18 our bag had it on that it was Chrysotile asbestos, I

19 advised customers that it was Chrysotile asbestos.

20 We made no differentiation about the products.

21 Q. And you are aware, based upon your review

22 of information and experience, that Union Carbide’s

23 knowledge of the dangers of asbestos goes back to

24 the 1930s, correct?

25 A. I believe that there was information

1 available at that time.

2 Q. And that that information was in the

3 possession of Union Carbide as far back as the

4 1930s?

5 A. That, I couldn’t answer to. I don’t know.

6 Q. When you were doing your review –

7 MR. JORDAN: Do you have this

8 document in hard copy for the witness? You are

9 taking excerpts.

10 MR. PLACITELLA: I’m just asking him

11 a question.

12 Q. Did you have available to you in your

13 review Answers to Interrogatories that Union

14 Carbide –

15 MR. JORDAN: I see the

16 Interrogatories in your associate’s hand. I think

17 it is common courtesy if you are going to ask the

18 witness about this.

19 MR. PLACITELLA: You know what, I’ll

20 ask my questions the way I want. Okay?

21 MR. JORDAN: You are intentionally

22 not going to show him a document?

23 MR. PLACITELLA: I know the speeches

24 you want to make. Stop it. I’m allowed to ask the

25 questions the way I want, okay? If you keep doing

1 it, I’ll be happy to call the judge.

2 MR. JORDAN: I’ll be happy to call

3 the judge, too.

4 MR. PLACITELLA: Knock it off.

5 A. Well, if you are going to ask me about a

6 document, would you please be kind enough to show me

7 the document so I can see the whole document and not

8 pick out pieces of it?

9 Q. Sir, were you –

10 A. That is all I ask.

11 Q. Were you told by your lawyer to say that?

12 A. No, no.

13 MR. JORDAN: Objection

14 A. No. If somebody gives me a little piece

15 out of a whole document, I would like to read the

16 whole document so I understand the total thing.

17 Q. I’m going to ask you this. Tell me if

18 this refreshes your memory. That’s all I want to

19 know.

20 A. Again, if I have the document –

21 Q. The interrogatory answer supplied by Union

22 Carbide indicates that members of Union Carbide’s

23 medical department had been aware of the hazards of

24 asbestos exposure to airborne asbestos fibers at

25 least since the mid 1930s, such knowledge having

1 been obtained from medical textbooks and medical

2 liquor.

3 Had you ever heard that before?

4 A. What you said is what is up there on the

5 board. I answered your question. You asked me if

6 Union Carbide knew about asbestos and hazards in the

7 ’30s and I said yes, I believe they did.

8 Q. Okay. That’s all I need to do know.

9 Do you agree believe it was proven that

10 asbestos could cause lung cancer by 1955?

11 MR. JORDAN: Objection to the form.

12 A. I don’t know that I know that answer. I

13 know by 1960, early ’60s maybe, ’63, ’64, that we

14 could say that, yes.

15 Q. Now, would you agree with me that it was

16 accepted by 1964 that asbestos could cause

17 mesothelioma?

18 MR. JORDAN: Objection to the form.

19 A. No, I don’t believe at that time it was

20 fully accepted. It was certainly suspected, but I

21 don’t think it was confirmed.

22 Q. Do you know who Hilton Lewison was?

23 A. I’ve heard the name before, but I’m not

24 really sure.

25 Q. In preparation for your testimony today

1 were you shown any of the testimony or the

2 depositions of are Dr. Lewisson?

3 A. No.

4 Q. Did you ask to see it?

5 A. No.

6 Q. At one point he was the medical director

7 for Union Carbide?

8 A. That could be true. As I said, I’ve heard

9 the name before. I’m not familiar with what he did

10 at Union Carbide.

11 Q. Are you aware that he was considered by

12 Union Carbide to be the resident expert on asbestos

13 and disease?

14 MR. JORDAN: Objection to the form of

15 the question.

16 A. No. As I said, I don’t know what Dr.
Lewison
17 or whatever did.

18 Q. Do you know who Thomas Lincoln is?

19 A. No, I don’t.

20 Q. You don’t know that he was a corporate

21 medical director for the Union Carbide?

22 A. No, I don’t. I knew Dr. Dernehl and I
knew
23 Ken Lane.

24 Q. Did you know that the medical director for

25 Union Carbide considered Dr. Lewison the resident

1 expert on asbestosis and asbestos disease?

2 A. I didn’t know that.

3 Q. Could you look at the screen, please?

4 MR. JORDAN: Can we have the

5 document, please?

6 Q. Have you ever seen that document before?

7 A. Could I see the document?

8 Q. The whole document is up there on the

9 screen.

10 MR. JORDAN: It is covered by the

11 excerpt you have taken out of it.

12 MR. JORDAN: Ask you pull it out?

13 Q. You haven’t heard that before?

14 MR. PLACITELLA: I’m sure it is in

15 there. It is your document. That’s where I got it

16 from. I got it from you.

17 MR. JORDAN: You have been to our

18 repository?

19 MR. PLACITELLA: We got it from you.

20 Let’s not fight about it now. It was produced by

21 you in other litigation. That’s enough.

22 MR. JORDAN: You didn’t get it from

23 me. You got it from other plaintiffs.

24 MR. PLACITELLA: I’m not going to

25 disclose my work product practices to you, sir.

1 Q. I have testimony up here from Dr. Lewison

2 from Object 29, 2003. Could you look at the

3 testimony?

4 A. It is a little difficult. I’m trying to

5 look at the camera so we can see this, but the

6 camera isn’t able to turn when I’m looking at

7 documents. That’s why I would like to have a

8 document in front of me so I can continue to look at

9 the camera and they can see.

10 Q. I’m going to conduct the deposition my

11 way, okay? All right, sir?

12 A. That’s fine.

13 Q. It says –

14 A. I would like it to be done fairly.

15 Q. Dr. Lewison was asked in his deposition

16 when do you believe the relationship between

17 asbestos exposure and mesothelioma became generally

18 accepted in the United States. After an objection,

19 he says, “Well, certainly by sometime between ’65 or

20 ’65 onwards it became — I think it was generally

21 accepted. Especially after there was a big meeting

22 in New York City in ’64, the proceedings were

23 published in 1965 and as a result of that meeting

24 the media coverage that it received, I think the

25 general medical community became more aware of the

1 condition and it became mower accepted.”

2 Does that refresh your recollection sir?

3 MR. JORDAN: Objection.

4 Q. As to when it became generally accepted

5 that mesothelioma was caused by asbestos?

6 MR. JORDAN: He already testified.

7 A. I believe I said around 1964 –

8 MS. BANEZ: I would like to state an

9 objection. To the extent any part of that question

10 and any other proceeding questions applies to any

11 other party in this litigation as far as what is

12 being generally accepted. You can ask him about

13 what was generally accepted about Union Carbide, but

14 I object to the extent it is going to be binding

15 upon any other defendant in this action,

16 specifically my client.

17 MR. JORDAN: I would like to see this

18 deposition testimony. I see what you type on a

19 Power Point presentation. I haven’t seen the

20 deposition. I think it is only fair if you are

21 going to ask the witness whether something refreshes

22 his recollection he should actually look at it. I’m

23 not sure what his recollection needs to be

24 refreshed. He already said that.

25 Q. Sir, do you agree that by 1964, 1965 it

1 was generally accepted that asbestos can cause

2 mesothelioma?

3 MS. BANEZ: Objection to the form.

4 MR. JOSS: I join in counsel’s

5 objection.

6 MR. JORDAN: Objection to the form.

7 A. I believe in 1964 what we may be referring

8 to here is Dr. Selikoff’s study on insulating

9 workers using chrysotile.

10 I believe I answered the question in that

11 somewhere around 1964 it was suspected. I don’t

12 think it was confirmed. There was a lot of

13 discussions on asbestos and mesothelioma.

14 Q. Okay. And when is the first time, sir,

15 that you had a discussion with any of your customers

16 about asbestos and mesothelioma?

17 A. I don’t recall a specific date. I know it

18 came up probably in my 13 year career selling

19 Calidria maybe two or three times. Most people knew

20 the word cancer and we were giving information that

21 showed that it caused cancer, especially lung type

22 cancers which I believe mesothelioma is a type of

23 lung cancer.

24 Q. From the first day you started selling

25 Calidria, were you telling your customers that

1 asbestos can cause mesothelioma?

2 A. No. I was giving out information. One of

3 the items which did mention there was a link to

4 mesothelioma with asbestos was in the preamble to

5 the OSHA regulation which I gave to customers.

6 Q. When was that?

7 A. It was a routine.

8 Q. From your review of all the information

9 and all the documents in preparation for today’s

10 deposition do you have any evidence to indicate that

11 Union Carbide told its customers about mesothelioma

12 prior to 1972?

13 A. Yes, I believe in the toxicology report in

14 1969 that there was a mention made of mesothelioma,

15 and prior to the OSHA regulation the toxicology

16 discussions were the documents that were given to

17 customers to inform them of the asbestos information

18 that we had.

19 Q. So you believe that in 1969 you were

20 telling customers about mesothelioma?

21 A. I believe we were handing out this

22 document which contained a discussion on

23 mesothelioma.

24 Q. And would that include all of your

25 customers?

1 A. I would assume so. It was a general

2 practice. As I’ve seen documents by Mr. Hall, I’ve

3 seen testimony by John Myers that we routinely did

4 this.

5 Q. Now, the information that you distributed

6 to customers, that was coordinated through Niagra

7 Falls?

8 A. Basically, yes. They knew what I was

9 doing. Each salesman kind of pulled together his

10 own package. I had a particular package for our

11 regular grades and also a specific package for our

12 RG244 product.

13 Q. That information was coordinated by both

14 Mr. Myers and Dr. Rhodes. Is that fair?

15 A. They knew what I was doing, yes.

16 Q. Dr. Rhodes was your immediate boss?

17 A. Yes, he was.

18 Q. Mr. Myers his boss?

19 A. Correct.

20 Q. Did Mr. Myers have control over everything

21 that went out from Union Carbide that you would have

22 told your customers?

23 A. He certainly knew what was going on. I

24 did call reports where I reported, if I gave

25 information on health or toxicology to customers.

1 Q. My understanding is that it is your

2 position that sometime in 1968 Union Carbide started

3 to label its bags about potential hazards related to

4 asbestos. Is that fair?

5 A. Yes. As a matter of fact, I think we were

6 the first in the industry to put a label on the bag.

7 I don’t think other people selling asbestos had a

8 label, to the best of my knowledge.

9 Q. To your knowledge when did Union Carbide

10 start selling asbestos out of its Calidria mine?

11 A. There may have been some very small sales

12 in 1963. I believe 1964 would be the beginning of

13 any small volume type sales.

14 When we began marketing our asbestos we

15 looked at the paper industry first because we had a

16 pelletized material which was unique to asbestos.

17 It was a less dusty material than typical oakum

18 fiber. We began to market our product from ’64 to

19 ’67, I would say, ’66, to the paper industry.

20 Q. When you say pelletized asbestos, you sold

21 the asbestos two ways, right, pelletized and non

22 pelletized?

23 A. Yes, oakum fiber and pelletized.

24 MR. JORDAN: There’s crack also.

25 A. Half way between.

1 Q. Excuse me?

2 A. There’s a halfway between the product

3 called crack that went into the drilling industry.

4 Q. Was there any less asbestos in a gram of

5 pelletized asbestos fiber versus non pelletized
fiber?
6 A. No. Just a different form, as far as I

7 know.

8 Q. But by weight it is the same amount of

9 asbestos?

10 A. Yes. Isn’t a pound, a pound world around?

11 Q. We will get to that later.

12 A. Okay.

13 Q. The label that you put on in 1968, what

14 did that label say?

15 A. I believe it said — well, to quote it

16 correctly, something about do not breathe dust,

17 avoid breathing dust or something to that effect.

18 MR. JORDAN: Do you want it?

19 A. That is essentially what it said, or do

20 you want it exactly the words?

21 Q. I want to know what your recollection is.

22 A. That is my connection. If you want it

23 exactly –

24 Q. I would really like to see inside your

25 lawyer’s computer, but I don’t think that’s proper

1 so let’s just talk –

2 MR. JORDAN: I’ll be glad to show it.

3 I’m sure you have copies with your associates.

4 Q. Have you ever seen an actual bag of Union

5 Carbide fiber that had the label back in 1968?

6 A. Yes, I was shown that at some trials.

7 Q. Where did the label appear on the bag?

8 A. On the bag towards the bottom and I

9 believe it appeared on the front. I’m not positive

10 of that, but I believe it was on the front.

11 Calidria asbestos logo was on the top and

12 the grade was in the middle and then the warning on

13 the bottom.

14 Q. In your opinion that label was both

15 visible and legible?

16 A. I believe so.

17 Q. And you believe that good consumer

18 protection practice would be to make sure that any

19 label about health hazards would be both visible and

20 legible?

21 MR. JORDAN: Objection to the form.

22 Q. Correct?

23 A. At this particular time we were giving –

24 you are talking prior to ’72 now?

25 Q. Yes.

1 A. Prior to 1972, we were giving our

2 customers the toxicology report which discussed all

3 of that information, which we assumed that the

4 manager or whoever was in charge of that operation

5 would be passing on to his employees.

6 Q. I’m not sure we connected on that

7 question, so I’m going to go back.

8 A. Go again.

9 Q. It was proper business practice when

10 putting a label about potential health hazards on a

11 product to make sure it was both visible and

12 legible. That’s my question.

13 MR. JORDAN: Objection to the form.

14 A. Let me answer that a couple of ways.

15 First of all, it was visible and legible. Second of

16 all, I think it is proper to inform, which we did

17 with our toxicology report.

18 Q. All I’m asking you is when you put the

19 label on the product itself, we will get to the

20 toxicology report later. I know from your prior

21 testimony you want to talk about that. We will get

22 to that.

23 MR. JORDAN: Objection to the side

24 bar comments.

25 Q. Here is my question. The label that went

1 on the bag, you understood that in order for it to

2 be a proper label it had to be visible and legible?

3 A. I don’t know what proper means. It was

4 visible and legible, if that’s your question.

5 Q. In order to adequately communicate

6 information –

7 MR. PLACITELLA: Could you do me a

8 favor, please, don’t laugh at every question I ask.

9 It is just a matter of common courtesy or sit over

10 there because it is distracting me, okay?

11 MR. JORDAN: Whatever.

12 MR. PLACITELLA: I mean every

13 question I ask you laught at. It is not a joke. It

14 is not a joke to my clients.

15 MR. JORDAN: Objection to the side

16 bar.

17 MR. PLACITELLA: So if you think it’s

18 funny, sit over there where I can’t see you.

19 MR. JORDAN: Objection to the side

20 bar comments and the grandstanding. Just move on.

21 MR. PLACITELLA: The next time you

22 laugh when I ask a question I’m going to ask you to

23 sit somewhere else. Okay? Thank you.

24 MR. JORDAN: Whatever. Go on,

25 please.

1 MR. PLACITELLA: Can you read back my

2 question, please?

3 MR. JORDAN: Objection to the side

4 bar.

5 (Record read)

7 Q. In order to adequately communicate

8 information about the potential dangers associated

9 with the use of a product, when you put the label on

10 the package it should be visible and legible. Do

11 you understand that?

12 A. Label was visible and legible. It

13 adequately communicated what the label said, but

14 that was not the sole way we communicated.

15 MR. JORDAN: Objection to the form of

16 the question.

17 Q. I understand. You agree with me that the

18 label itself that you put on the product, the label

19 itself, did not accurately reflect the state of

20 knowledge that Union Carbide had about the dangers

21 of asbestos in 1968?

22 MR. JORDAN: Objection to the form of

23 the question.

24 A. I don’t know that there was enough room on

25 the bag to put everything about asbestos at that

1 time on the bag. That’s why we gave out our

2 toxicology report.

3 Q. What was everything known about asbestos

4 at the time that you didn’t have room to put on the

5 bag? Tell me.

6 MS. BANEZ: Objection to the form to

7 the extent it is supposed to implicate any other

8 defendants or particularly my client in this case.

9 I object.

10 MR. PLACITELLA: Could you read back

11 his answer, please?

12 (The following answer is read.)

14 A. I don’t know that there was enough room on

15 the bag to put everything about asbestos at that

16 time on the bag. That’s why we gave out our

17 toxicology report.

19 MR. PLACITELLA: Could you read my

20 question, please?

22 (The following question is read back.)

25 Q. I understand. You agree with me that the

1 label itself that you put on the product, the label

2 itself, did not accurately reflect the state of

3 knowledge that Union Carbide had about the dangers

4 of asbestos in 1968

5 MS. BANEZ: Same objection.

6 MR. JOSS: Join.

7 MR. JORDAN: Objection to the form.

9 Q. You can answer it, sir.

10 A. I think I did.

11 Q. What was known about asbestos in 1968,

12 about the dangers of asbestos that you didn’t have

13 room to put on the bag?

14 MR. JORDAN: Objection to the form.

15 MS. BANEZ: Objection to the form.

16 A. Well, again, labeling was a new concept in

17 1968. There was a lot of controversy about asbestos

18 in 1968. How much could you fit on the bag? We

19 tried to inform as best we could by putting a

20 warning on the bag and also communicating by our

21 toxicology report to the company we were selling to.

22 MR. PLACITELLA: Could you read my

23 questions back, please?

24 (The following question is read.)

2 Q. What was known about asbestos in 1968,

3 about the dangers of asbestos that you didn’t have

4 room to put on the bag?

6 Q. Could you answer that question, please?

7 MR. JORDAN: Objection to the form.

8 Asked and answered.

9 MR. PLACITELLA: It hasn’t been asked

10 and answered. Improper objection under out court

11 rules.

12 MR. JORDAN: No, it is not.

13 MR. PLACITELLA: Improper objection

14 under our court rules. Please don’t do it again.

15 Q. Can you answer that question, please?

16 A. I believe I did.

17 Q. You did not, sir.

18 A. That’s your opinion.

19 Q. What was known in 1968, sir, what did

20 Union Carbide know in 1968 about the dangers of

21 asbestos?

22 A. I believe I answered that questions. I’m

23 sorry you don’t believe that I did. I did.

24 Q. Sir, here is my question. What did Union

25 Carbide know in 1968 about the dangers of asbestos?

1 That is my question.

2 MR. JORDAN: Objection to the form.

3 A. I believe you asked that question.

4 Q. Please answer it again?

5 A. Twice before. I answers the question.

6 Q. Please answer the question.

7 A. There was a lot of information out about

8 asbestos in 1968 when we put that label on the bag.

9 We put that label on there as a warning. We were

10 the only one who had a warning on the bag and we

11 provided information to our customers about

12 asbestos.

13 Q. Sir, in 1968, what did Union Carbide know

14 about the dangers of asbestos from your review of

15 all the material? That’s my question.

16 A. I believe I just answered that. Chris, I

17 don’t understand why you don’t understand my answer,

18 but I believe I answered that to the best of my

19 ability. I don’t know what else I can do.

20 Q. I’m not asking about the label, sir. I’m

21 not asking about the label. I’m asking you a simple

22 question. What did Union Carbide know about the

23 dangers of the asbestos in 1968?

24 A. What was in our toxicology report.

25 Q. And that’s it?

1 A. I don’t think that’s everything. I don’t

2 know what else they might have known. Our

3 toxicology report in 1969 was all the information

4 that we were trying to give to customers. I don’t

5 know if it was every single piece of information

6 there might have been in the field of asbestos. I

7 would doubt it.

8 Q. Did the label change at all after 1968?

9 A. It changed in 1972 when the OSHA

10 regulation issued because it was prescribed by OSHA

11 what should go on the bag and we began July 1 with

12 that label.

13 Q. So from 1968, I just want to get the

14 chronology down, from ’68 to ’72 the label on the

15 bag of Union Carbide asbestos fiber remained the

16 same?

17 A. To the best of my knowledge, yes.

18 Q. And then in 1972 after the OSHA regulation

19 passed, the label changed?

20 A. Yes.

21 Q. And how did the label change?

22 A. Well, we could read what the OSHA

23 regulation said should be on the bag and that’s what

24 we put on the bag.

25 Q. I just want to know what your recollection

1 was, sir.

2 A. It said warning, avoid breathing dust, may

3 causes serious bodily harm, essentially.

4 Q. Did you actually use the word warning,

5 sir?

6 A. I don’t recall.

7 Q. Is there a difference in your mind between

8 warning and caution?

9 A. I don’t know that there is, but I think

10 the main point was the seriously bodily harm, which

11 would certainly get somebody’s attention, I would

12 think.

13 Q. The fact of the matter is that it said

14 caution, not warning, correct?

15 A. It could be, if that’s what you are

16 saying.

17 Q. Well, you are the person that is supposed

18 to have the most knowledge of about what was on the

19 bag.

20 A. Well, you know we could look it up and I

21 could have told you.

22 MR. JORDAN: Do you want to see a

23 picture?

24 MR. PLACITELLA: Can I see everything

25 else in your computer?

1 MR. JORDAN: You can see the bag. If

2 you want to see the bag, you have 100 copies.

3 Rather than playing –

4 MR. PLACITELLA: What you are doing

5 is improper. I’m asking him for his recollection

6 and you are showing him stuff on your commuter.

7 While I’m asking — let me see everything else on

8 your computer then.

9 MR. JORDAN: Will he empty everything

10 on yours?

11 MR. PLACITELLA: Let’s call the

12 Court. I want to call the Court. Can we get a

13 separate line, please?

14 MR. JORDAN: He just asked to see the

15 documents.

16 MR. PLACITELLA: What document? I

17 asked him what he remembered? Knock it off. Let’s

18 call the Court. Steve, get a separate line to the

19 Judge, please, and we will take a break and I’ll

20 keep asking questions until you get the Judge on the

21 phone.

22 A. Are we taking a break?

23 Q. No.

24 A. You just said we were taking a break.

25 MR. PLACITELLA: He is going to get a

1 separate line. I have a hot of questions to ask

2 you.

3 A. You said we were taking a break. Are we

4 going to take a break?

5 Q. I am not taking a break.

6 A. You had said we were going to take a

7 break. I’m just going by what –

8 MR. JORDAN: Jack. Don’t worry about

9 it.

10 A. Sorry.

11 MR. JORDAN: Do you need to take a

12 break?

13 A. No.

14 MR. JORDAN: Let’s go on.

15 A. Does Chris?

16 Q. I don’t. Okay. My question you to was do

17 you, without looking at anything, remember what was

18 on the label in 1972?

19 A. Basically. I didn’t remember it word for

20 word caution, warning. I do remember it breathing

21 dust can cause serious bodily harm.

22 Q. All I’m asking for is your best

23 recollection. If you don’t remember something –

24 MR. JORDAN: He gave it.

25 MR. PLACITELLA: Please. Excuse me,

1 please.

2 Q. If you don’t remember something, it is
okay
3 for you to tell me you don’t remember. I’m asking

4 for your best recollection.

5 A. I gave it to you.

6 Q. Now, in 1972, when you went to start to

7 sell the product, were you telling customers that

8 Chrysotile asbestos can cause cancer?

9 A. When I began to call on customers in 1972,

10 after my two trips with Harry Rhodes, I began to see

11 the number of questions that would come up. I

12 prepared a package which included the asbestos

13 regulation that had issued, Material Safety Data

14 Sheet, a product data sheet, Dr. Wright’s testimony

15 before the OSHA committee and an airborne asbestos

16 summary.

17 I put these together in a binder and as I

18 made calls I gave them to customers for their

19 information and to read after I was gone. They were

20 a pretty lengthy amount of information. So did I

21 tell them? I gave them the information and it was

22 contained in that information.

23 Q. Just so I understand, in 1972 you gave

24 your customers information indicating that

25 Chrysotile asbestos could cause cancer. Is that

1 what you are saying?

2 A. That is correct.

3 Q. In 1972, did you give your customers

4 information indicating that people who were not

5 occupationally exposed to asbestos could get cancer

6 from asbestos exposure? Do you understand my

7 question?

8 A. Yes. In other words, bringing it home?

9 Q. Yes.

10 A. Okay. I believe that was discussed in the

11 OSHA regulation preamble, the possibility could

12 existed that that could be brought home.

13 Q. That would have been related to your

14 customers?

15 A. Yes. That was part of the package I gave.

16 Q. Part of your customer base for the

17 Calidria fiber were companies that were

18 manufacturing asbestos-containing joint compounds,

19 correct?

20 A. Yes.

21 Q. You were aware that the dumping of a dry

22 joint compound product created visible

23 asbestos-containing dust, true?

24 A. That could be, yes.

25 Q. In fact, you personally observed that?

1 A. I’ve seen it, yes.

2 Q. You were aware that people sanding the

3 joint compound after it was applied would liberate

4 visible asbestos-containing dust, true?

5 A. Yes. They would also liberate

6 encapsulated asbestos fiber and they would liberate

7 general nuisance dust. They could never say zero.

8 There was always a very minuscule amount of free

9 fiber liberated dust during sanding.

10 Q. When sanding was done you could physically

11 see visible dust, true?

12 A. Yes, you could. But let’s talk about

13 sanding a little bit.

14 Q. I’m going to get that.

15 A. It’s not a priority that you do a lot of

16 sanding. It is really a sloppy job if you have a

17 sand a lot.

18 Q. When you had to sand joint compound after

19 it was applied it created visible dust. That’s my

20 question.

21 A. Yes.

22 Q. And you were personally aware of dust

23 counts while people were sanding joint compound as

24 high as 20 fibers per cc, true?

25 A. There were some counts, but I don’t know

1 if they were involved with the sanding. I

2 participated in a study that we did down in Hialeah,

3 Florida on a condominium project where we did some

4 counting of dust levels. I don’t recall that any of

5 those sanding numbers were in the 20 fiber range.

6 Q. Sir, you gave a deposition on June 28,

7 2002. At page 229 you were asked the following

8 question.

9 MR. JORDAN: Could you show him the

10 the –

11 MR. PLACITELLA: 6-28-2002. That’s

12 what I have in front of me.

13 MR. JORDAN: What is the style of the

14 case?

15 MR. PLACITELLA: The style was — I

16 don’t know have style. I’m asking the questions.

17 A. Could you show me the deposition?

18 MR. PLACITELLA: I’m asking him a

19 question.

20 MR. JORDAN: Objection to your

21 prefatory remarks. If you are not going to show

22 him –

23 Q. You were asked the following question and

24 you gave the following answer.

25 “Have you ever seen sanding dust counts

1 with levels as high as 20 fibers per cc?”

2 Answer, “As high as 20, I’ve seen numbers

3 like that, yes. I don’t know whose they were.”

4 Does that refresh your recollection, sir?

5 A. A little bit. They could have very well

6 not have been involved with sanding. I have seen

7 numbers that exceeded the threshold limit, but I

8 don’t really recall seeing them — the numbers in

9 that report that we published for the GDCI would

10 indicate if any of those numbers exceeded. That’s

11 what I’m referring, to that report.

12 Q. You are aware that the sanding of joint

13 comment on some tests showed fiber levels exceeding

14 the OSHA limits, right?

15 A. I believe Dr. Selikoff did some studies

16 here in the New York area where he had some numbers

17 that exceeded the levels, yes.

18 Q. And when Union Carbide did its testing

19 concerning how much asbestos was released during the

20 sanding process, you didn’t even count the majority

21 of the fibers that were released, right?

22 MR. JORDAN: Objection. Objection to

23 the form of the question.

24 A. When we counted on any dust monitoring we

25 did, we counted, by definition, anything that is

1 three times as long as it is wide unless we could

2 positively identify it as not being an asbestos

3 fiber.

4 So a lot of times when we did a sanding

5 like that, the customer could have had talc,

6 fibrous talc in his formula and we would have been

7 counting that as asbestos fiber.

8 Q. But the majority of the fiber that was

9 released was not counted by your techniques, right?

10 MR. JORDAN: Objection to the form of

11 the question.

12 A. Majority of the fiber? No, we counted all

13 the fiber that was on the cartridge.

14 Q. Sir, in the same deposition you were asked

15 the following question and answer.

16 “Would a dust count that counts fibers

17 greater than five microns count Calidria asbestos

18 fiber?

19 MR. JORDAN: Page and line?

20 Q. Answer –

21 MR. PLACITELLA: Page 208.

22 MR. JORDAN: Which deposition?

23 MR. PLACITELLA: 6-28-2002.

24 MR. JORDAN: Which cases?

25 Q. We said that the majority of our products

1 was five microns or less. So I guess you could miss

2 a Calidria fiber, but the majority were fiber.

3 Do you remember giving that testimony?

4 MR. JORDAN: Let’s take a break real

5 quick. I need to go to the restroom.

6 A. Yes, I vaguely recall that.

7 MR. JORDAN: Wait. If you don’t

8 remember that testimony specifically he has an

9 obligation, if he is going to try to impeach you

10 with a particular deposition, he has an obligation

11 to at least show it up to.

12 MR. PLACITELLA: That is not under

13 our rules, sir. I can ask him any questions. You

14 are wrong about that and please don’t do that.

15 MR. JORDAN: We will talk to the

16 judge about that.

17 A. Let’s talk about one thing about the fiber

18 micron.

19 Q. There’s no pending question.

20 A. The OSHA –

21 Q. Sir, there is no question pending.

22 A. I thought you were asking a question.

23 Q. You answered my question.

24 MR. JORDAN: We are going to take a

25 restroom break. I have to go to the restroom.

1 (Recess taken.)

2 (Documents P-3 through P-7 are

3 marked for Identification.)

4 MR. PLACITELLA: I want to make sure

5 since I don’t see counsel for Georgia-Pacific here,

6 my intention to ask questions that reference Georgia

7 Pacific. I want to be clear with Steve that Georgia

8 Pacific was given notice of the deposition, of the

9 time, location and that you have had both written

10 and verbal discussions. Could you tell me what you

11 know for the record?

12 MR. WEINER: For the record, and

13 keeping it short and sweet, they received notice in

14 writing, with FAX, they received notice by e-mail

15 and I actually had an oral conversation just by

16 multiple counsel for Georgia-Pacific and they are

17 aware of the deposition location and time.

18 MR. JORDAN: I assume your rules

19 require when you send out the notice you notified?

20 MR. PLACITELLA: This has been going

21 on. We had discussions about it at court conferences,

22 but Steve, I’m not going to ask any questions. If you

23 could make a phone call and I’ll ask some preliminary.

24 I’m concerned that they are not at

25 least on the phone, that’s all. We don’t need to do

1 this twice. It is painful the first time.

2 Q. Mr. Walsh, I’m going to hand you what’s

3 been marked P-3 for identification, which is a

4 March 25, 1974 memo, and I’ll ask if you can

5 identify it. I’ve put only a portion of it up on

6 the screen. But start there.

7 Do you recognize this document?

8 MR. WEINER: I insisted they get

9 someone here right away, and let me introduce Sean

10 Kelly.

11 A. No, I don’t recall seeing this before.

12 MR. JORDAN: We are making sure

13 that’s not subject to the privilege. I don’t want

14 anyone snapping back.

15 MR. PLACITELLA: There’s been enough

16 snapping back going on here already.

17 MR. JORDAN: We both have been

18 snapping turtles throughout this whole thing.

19 MR. PLACITELLA: Nobody ever accused

20 me of being a turtle before. A lot of other things.

21 Go ahead.

22 MR. JORDAN: Go ahead.

23 Q. In your review of the documents have you

24 ever seen this document before?

25 A. I do not recall.

1 Q. Do you know who Mr. W. C. Thurber is?

2 A. Yes, I believe Mr. Thurber was John

3 Meyers’ boss.

4 Q. He was your boss’ boss’ boss?

5 A. You got it.

6 Q. And who was Mr. Rawlings?

7 A. I believe Rawlings was the president of

8 the Metals Division of Union Carbide, John Rawlings.

9 Q. Did you have the chance to look at the

10 document?

11 A. I was just starting to when you asked me

12 questions. Yes.

13 Q. I’ll refer you to the top paragraph on the

14 second page and I have blown it and put it up on the

15 screen.

16 A. Okay.

17 Q. It says we have been very successful in

18 the last two years in increasing our share of the

19 market for ready-mix variety of tape joint compounds.

20 However, this area is under increasing pressure from

21 the likes of Dr. Selikoff primarily because of the

22 dust generated during the sanding of tape joints.

23 Did I read that correct?

24 A. Yes, you did.

25 Q. Did you understand that to be the general

1 state of affairs in 1974 when you were selling the

2 product?

3 A. Basically, yes. Dr. Selikoff did the

4 sanding report here in New York among workers and he

5 showed some numbers that were high.

6 Q. You can put that down.

7 I have what’s been marked P-4 for

8 Identification and ask if you have seen that

9 document before?

10 MR. JORDAN: I believe this is a

11 document subject to the privilege objection and we

12 are obviously not waiving our privilege objection to

13 the extent you are using it here.

14 MR. PLACITELLA: Okay.

15 MR. JORDAN: If I can go back and

16 check our list to make it easier, but just get a

17 running objection on your documents to the extent

18 they are contained on our privilege objections?

19 MR. PLACITELLA: Okay. You asserted

20 it.

21 MR. JORDAN: Thank you.

22 MR. PLACITELLA: Doesn’t mean I

23 agree, but you asserted it.

24 MR. JORDAN: I’m not asking you to

25 degree. I don’t want to be accused of waiving.

1 A. I don’t recall seeing this document.

2 However, I’ll be glad to comment on it if you would

3 like.

4 Q. Okay. For Identification purposes, the

5 document says confidential, for internal use only.

6 Chrysotile asbestos market analysis April 1974.

7 Marketing Services Department Union Carbide.

8 It says some other stuff.

9 Did you work for the Marketing Services

10 Department?

11 A. Not to the best of my knowledge. I have

12 never seen something called Marketing Services

13 Department. Commercial Intelligence Center. New to

14 me.

15 Q. I only have one limit question. Again, on

16 the second page the cover letter –

17 A. Thurber?

18 Q. Right. There was your boss’ boss’ boss?

19 A. Bill Thurber was, yes.

20 Q. I got the lineage correct?

21 A. Yes.

22 Q. Now, if you flip to page 18.

23 A. Okay.

24 Q. And you look at the last paragraph, do you

25 see where it says wallboard joint tape mud? Do you

1 see that?

2 A. Yes.

3 Q. I put the paragraph up on the screen I

4 want to ask you about. The last paragraph says

5 according to the Gypsum Wallboard Association and

6 our own internal information, there is an alleged

7 hazard in the use of asbestos in this application

8 due to sanding of the semi finished job.

9 This dusting is considered unacceptable by

10 the trade in view of OSHA attitudes. Warning labels

11 may be required.

12 Did I read that correctly?

13 A. Yes, you did.

14 Q. When it says our own internal information,

15 do you know what they are referring to?

16 A. No, I don’t, because I don’t know of any

17 counts other than Dr. Selikoff’s counts that showed

18 numbers to be above the regulatory limits.

19 Q. So whatever information they are referring

20 to wasn’t shared with you?

21 MR. JORDAN: Objection to the form of

22 the question.

23 A. I don’t know what they are referring to.

24 Q. Were you told in 1974 that warning labels

25 may be required for joint compounds?

1 A. Who?

2 Q. You. You, Mr. Walsh.

3 A. No. Warning labels, where? On our bags?

4 Q. No, on joint compound.

5 A. On joint compounds?

6 Q. Yes.

7 A. Was I told that warning labels might be

8 required on joint compounds?

9 MR. JORDAN: 1974?

10 Q. 1974, yes.

11 A. No, I don’t recall that.

12 Q. You can put that down. We will come back

13 to it later. I’m going to show you what’s been

14 marked P-5. I apologize to you because I

15 highlighted it last night and it was really late and

16 it is really sloppy.

17 A. Don’t worry about it.

18 MR. JORDAN: I will specifically

19 object to this. I recognize Mr. Fusaro’s name as an

20 in-house lawyer on the document.

21 A. Okay.

22 Q. I put it up on the screen to — this is

23 February 1, 1978. Have you ever seen this document

24 before?

25 A. I could have. I don’t recall it.

1 Q. Do you recall possibly seeing it in trials

2 that you testified in?

3 A. Possibly.

4 Q. It says, and this was a document from John

5 Myers who was your boss’ boss, right?

6 A. Correct.

7 Q. And cc’d on the document is your boss,

8 correct?

9 A. Harry Rhodes, yes.

10 Q. And the document to Mr. Thurber, and we

11 have identified him in the lineage before, correct?

12 A. Mr. Thurber, yes, correct.

13 Q. And what he says in the first sentence is

14 attached to is a list of domestic tape joint

15 compounds, TJC manufacturers whom we have sold

16 asbestos. Do you see that part?

17 A. I do.

18 Q. Then it goes down further and it says if

19 you are trying to determine the number of persons

20 who may be exposed to asbestos-containing TJC, that

21 means –

22 I’ll read it here. If you are trying to

23 determine the number of persons who may be exposed

24 to asbestos-containing TJC, that’s –

25 A. Tape joint compound.

1 Q. And similar products, I imagine it would

2 be in the millions. Do you see that?

3 MR. JORDAN: Starts right here, Jack.

4 A. Okay. I see that comment, yes.

5 Q. Was it your understanding at this point in

6 time that millions of people would have been exposed

7 to asbestos as a result of using tape joint

8 compound?

9 A. I could do no more than John Myers did

10 there which was essentially to guess.

11 Q. Well, he estimates, he doesn’t guess.

12 A. I guess it would be possible.

13 Q. Virtually every major producer of tape

14 asbestos-containing joint compounds would have used

15 Union Carbide fiber up to that point in time,

16 correct?

17 MR. JORDAN: Objection to the form.

18 A. In a minority portion of their

19 formulation. We were not in every tape joint

20 manufacturer’s — in every formulation. Where we

21 did occur and we mostly occurred in ready-mix joint

22 cement where typically the Canadian level might be 3

23 or 4 percent and we would be 1 or 2 percent in the

24 formula.

25 MR. PLACITELLA: Could you please

1 read back my question so I know –

2
(Record read.)
3

4 MR. JORDAN: Objection. Answered.

5 Q. True?

6 A. Yes. I think I answered it.

7 Q. Now, the two major accounts for Calidria

8 fiber for joint compound manufacturers were Georgia

9 Pacific figure and U.S. Gypsum. Is that correct?

10 A. U.S. Gypsum was a large account, National

11 Gypsum was a large account. Georgia-Pacific was a

12 large account. I would say probably volume wise,

13 those were the top three.

14 Q. And Georgia-Pacific was what was known as

15 a carload customer, correct?

16 A. I guess depending upon the location. I

17 know in Marietta, Georgia they were a carload

18 customer and Quana, Texas they were a carload

19 customer because I called at those two locations.

20 Q. That would have meant that they received

21 at least 60,000 pounds of your asbestos on a per

22 shipment basis, correct?

23 A. I believe it was 2080 bags in a carload,

24 54,600 hundred pounds, not 600.

25 Q. When you went out to your major customers

1 Georgia-Pacific, U.S. Gypsum, National Gypsum, were

2 you giving basically the same advice to all the

3 customer about the potential dangers associated with

4 the use of your product?

5 A. Well, I didn’t call on National Gypsum. I

6 did call on U.S. Gypsum and I did call on Georgia

7 Pacific. I had at a couple of locations for both of

8 them. It really — they got a basic package.

9 As new information came along EPA

10 regulations, whatever, I would pass that out on

11 subsequent calls. Occasionally there might be a

12 question in some other area that we developed a list

13 which had maybe forty items or so of available

14 information that we could pass out to customers and

15 if the question came up, I gave it to them.

16 Q. Here is my question, my question is, and

17 it is not a trick question. You attempted to make

18 available basically the same information to all of

19 your customers?

20 MR. JORDAN: He is going to tell you

21 when he is going to ask a trick question. I’m

22 sorry. I couldn’t help myself.

23 A. Ask that again.

24 Q. You basically attempted to make the same

25 information available to all your customers?

1 A. Sure. We didn’t give Georgia-Pacific some

2 information that we withheld from USG.

3 Q. Okay. Now, who was the salesman for

4 National Gypsum, by the way?

5 A. Their headquarters I believe was located

6 up in Buffalo, New York. It would have been

7 somebody out of the Niagra Falls office because the

8 Calidria group was such a small group.

9 There were only ten people in the total

10 marketing department. Anybody would make a call.

11 There was sales responsibility, but I know in the

12 past Harry Rhodes called there, I know Gordon Dixon

13 called there, John Myers even made calls at

14 National’s headquarters?

15 Q. Was that the Tonawanda plant?

16 A. I thought it was in Buffalo. Excuse me.

17 I said before, and let me correct it. I didn’t call

18 on National Gypsum, but I did. They had a location

19 in Westwego, Louisiana that was a shipping point

20 and I did call there.

21 Q. Okay. Am I correct that you physically

22 visited yourself — scratch that. You didn’t visit

23 yourself.

24 MR. JORDAN: That was a trick

25 question.

1 Q. Georgia-Pacific between 20 and 24 times at

2 its factories?

3 A. Yes, I think that’s a reasonable

4 assumption. Mainly because the Marietta plant was

5 so close that I could run over there as needed.

6 Q. And you personally spoke during your

7 visits with representatives of Georgia-Pacific,

8 true?

9 A. Typically I spoke with, in Marietta, Bob

10 Favaro, the plant manager. Quana, Texas I spoke

11 with Sterling Clark and usually my visits were

12 limited to speaking with the plant manager and the

13 quality control man.

14 Q. You also had discussions with a man named

15 Howard Schutte?

16 A. I don’t recall I ever met somehow named

17 Howard Schutte.

18 Q. Do you recall putting that in any of your

19 trip reports?

20 A. No.

21 Q. We will get to that.

22 When you had these discussions did they

23 involve dust counts that were being done at the

24 plant?

25 A. We did a number of dust counts at the

1 Marietta location. I believe we also did one out

2 in Quana, Texas.

3 Q. Did you also have discussions about

4 toxicology related to the products you were selling?

5 A. To a degree. I also provided them with my

6 standard toxicology packet.

7 Q. Now, before you, who was the person at

8 Union Carbide that was calling on Georgia-Pacific?

9 A. Harry Rhodes.

10 Q. That was your boss?

11 A. Yes, my boss.

12 Q. And did he also have extensive contacted

13 with Georgia-Pacific?

14 A. He called on the Tigard, Oregon location

15 which was the point where our product was evaluated

16 and approved. All of the locations other than

17 Tigard simply worked from approved formulations.

18 Q. At some point in time you learned that

19 Georgia-Pacific start to put labels about asbestos
on
20 its products, true?

21 A. Yes. One time. I’m not sure if it was a

22 dust count or I was walking through the plant, I saw

23 that they were beginning to label their product and
a
24 conversation somehow came up. I don’t know if it

25 was at that time or after the fact, a telephone call

1 if we had any suggestions. I suggested they put on

2 wet sanding or sponging, if possible.

3 Q. I want to get to that.

4 Now, that was sometime in 1974?

5 A. I don’t know what the year was. Sometime

6 during my calls, the series of calls that I made on

7 Georgia-Pacific figure. At the time they were

8 putting a label, they were designing or thinking

9 about putting a label and they were looking for some

10 input, if we had any.

11 Q. Before that call your understanding was

12 that Georgia-Pacific was putting no label on its

13 products, right?

14 A. I rarely got to see Georgia-Pacific’s

15 product, except if I was on a dust count. My call

16 was typically limited to Bob Favavo’s office or the

17 QC lab.

18 Q. Did you ever see the product out in the

19 stores?

20 A. Never looked for it, no.

21 Q. When you had this meeting about what

22 should be on the label or this discussion, was it

23 your understanding that’s when they were going to

24 start putting labels on the products?

25 A. I think they had already decided that they

1 were going to put some kind of a labeling on there

2 and they were looking for input. I gave them my

3 input.

4 Q. They asked you specifically what should we

5 put on our label, in essence?

6 A. No, not really. They already had a design

7 or wording that they were going to put on. They

8 asked me if I had any additional input I wanted to

9 make, which I did.

10 Q. And you told them that in addition to

11 whatever they were intending to put on, they should

12 put something about wet sanding, true?

13 A. I would advise that, yes.

14 Q. And why did you tell them that?

15 A. Because there was less dust generated when

16 you wet sanded or wet sponged.

17 Q. Why did you care about if there was less

18 dust generated?

19 A. No matter what product that you are

20 handling you don’t want a lot of dust in the air

21 that is breathable. So any way we could reduce

22 dust, we tried to do it.

23 Q. As I understand it they physically showed

24 you the sticker or label they were going to put on

25 the product, right?

1 A. I don’t recall if they did or not.

2 Q. When you made that recommendation you went

3 back and put it in one of your call reports. Do you

4 remember that?

5 A. I believe I did.

6 Q. Do you recall that the person you had this

7 discussion with and written in your call reports,

8 was Howard Schutte? Do you remember that?

9 A. I don’t recall the name Howard schutte. I

10 remember in Marietta it was Bob Favaro, Doug Jones

11 and somebody replaced Doug Jones.

12 Q. All right.

13 A. My recollection is that I spoke with Bob

14 Favaro.

15 Q. I’ll move this along. In your deposition

16 on June 28, 20002, that’s the one we talked about

17 before, I’m sure your lawyers found it by now. You

18 were asked –

19 MR. JORDAN: What page, please?

20 MR. PLACITELLA: 234.

22 Q. You were asked the following question and

23 answer. I want to see if this refreshes your

24 memory.

25 It says, “For the record 5536 is a report

1 of call which is authored by you dated 1975 at the

2 Georgia-Pacific plant in Quana, Texas. Did you go
to
3 Quana, Texas?

4 A. Yes. I did.

5 Q. Your answer as a general rule not

6 specifically for joint comment, but for products

7 containing Calidria asbestos, that could be

8 subsequently sanded, I recommend their labeling

9 include a phrase such as ” do not dry sand, wet sand

10 or wet sponge only”. Then there’s an objection.

11 Do you recall being — does this refresh

12 your recollection about whether Mr. Howard

13 Schutte — I think they spelled it wrong, by the

14 way, from Georgia-Pacific, asked if anything he

15 could tell his contractors about asbestos and

16 sanding. And your answer was I believe that — I

17 believe what I wrote and if it says he asked about

18 contractors and what to tell him, then I would have

19 told him.

20 Does that refresh your memory about what

21 transpired?

22 A. Basically, yes. I just don’t recall the

23 name of the person.

24 Q. Now, Georgia-Pacific then actually I want

25 to make sure the record is clear, actually showed

1 you the stickers or labels they were going to put on

2 the product, true?

3 A. I don’t know if they showed me or they

4 talked about the wording. They asked for input. If

5 I had any and that was the input I give them.

6 Q. In 2003, in September, you gave testimony

7 in a trial. You were asked the following question

8 and answer. I want to see if this refreshes your

9 memory.

10 MR. JORDAN: Could you tell me which

11 trial?

12 MR. PLACITELLA: 9-16-2003. I don’t

13 know the name of the trial.

14 Q. They asked you about your call report.

15 A. Are we talking about the call report

16 for –

17 Q. Georgia-Pacific.

18 A. Marietta or Quana, Texas?

19 Q. I think was Quana, Texas. Here is the -

20 A. Can I see a copy?

21 Q. Is the question. Stay with me for a

22 second. You were asked on page 111 did you see any

23 warning stickers that they put on their ready-mix

24 cans. Your answer was yes, he showd them to me.

25 Q. That refresh your memory?

1 MR. JORDAN: Objection to the form.

2 Q. Whether you physically saw the warning

3 stickers?

4 A. Yes, it says I did. That could have been

5 after the fact, not as they were considering it or

6 whatever.

7 Q. Okay.

8 A. But do you have the call report there?

9 Q. I don’t have it here. I’m going to try to

10 get it at lunchtime, but I think you answered my

11 question sufficiently.

12 A. Okay.

13 Q. Now, did you know whether your

14 recommendations were ever followed?

15 A. No, I don’t know. I don’t know that I

16 followed up. I don’t recall if I ever followed up

17 and said did you do what I said.

18 Q. Why not?

19 A. I don’t know. First of all, it was George

20 Pacific’s label. They put on it what they wanted to

21 put on it. I could input to them, but it was just

22 like their formulations. I couldn’t get them to use

23 anything unless Tigard, Oregon put it in the

24 formula.

25 The plants in Texas and Georgia all had to

1 produce by the formulas they were given and the

2 label that was put on the can came from, I assume,

3 Georgia-Pacific’s health and safety department and I

4 just inputted what I had to say or what I suggested

5 would be adequate.

6 Q. When you gave them that input that was

7 based upon the sum total of knowledge and

8 information that you had at that point in time?

9 A. That was based on you don’t want to create

10 dust. Anything you could do to reduce dust you

11 should try to do it. That’s why I gave that

12 information.

13 Q. Were you making that recommendation to

14 other manufacturers as well, only do wet sanding?

15 A. Yes. Anybody that came up to and I

16 believe we had it some of our literature.

17 Q. So when you saw the label that they were

18 going to use you –

19 A. I don’t know that I ever saw a label.

20 Q. You were aware that the label they were

21 going — the information they were going to put on

22 their product did not mention wet sanding, correct?

23 A. No. I don’t know what was on, they were

24 going to put on their label. All I was asked for

25 was input which I gave to them. I don’t know.

1 Maybe they already had it on there. Could have

2 been — I just don’t know.

3 Q. You thought it was important it would be

4 there?

5 A. I thought to reduce dust that it would be

6 good to have that on their label.

7 Q. Because if you didn’t wet sand it you just

8 dry sanded would it generate dust?

9 A. It could generate dust, right.

10 Q. And somebody who used it would be in a

11 position to inhale that dust?

12 A. Yes, possibly.

13 Q. My question to you is –

14 A. We also recommended sanding, when you did

15 sanding to wear a respirator.

16 Q. I understand.

17 Now, am I correct that you never did a

18 follow up to determine whether your recommendations

19 to only do wet sanding were actually carried out?

20 A. Yes, you could say that is correct. I

21 never went back after — a year later, but what year

22 were you talking about here? Was it ’78?

23 Q. ’74.

24 A. ’74? I was going to say ’78 they shortly

25 thereafter stopped using asbestos, But in ’74 no, I

1 didn’t go back after the fact and say did you do

2 like I suggested.

3 Q. The recommendation you made was because

4 you thought in order to minimize the hazard to the

5 ultimate user that they should breathe in as little

6 dust as possible, true?

7 A. My recommendation was based on reducing

8 dust.

9 Q. And to make it as safe as possible for the

10 user they should do wet sanding, right?

11 A. If possible, yes. It wasn’t always

12 feasible on a lot of these locations.

13 Q. Now, since you thought it was important

14 enough to make the recommendation that that’s how

15 the product should be used, can you tell me why you

16 never followed it up?

17 A. I was asked for input and I gave input. I

18 didn’t think — it was Georgia-Pacific’s decision on

19 whether they were going to use my input or not. I

20 just didn’t follow up to see if they did it.

21 Q. You knew that your fiber went into their

22 ready-mix joint compound, right?

23 A. In a minority percentage of the formula.

24 It was mostly a Canadian formula. I believe in

25 Marietta, Georgia, the formulas we were in were for

1 ready-mix and it was two-thirds Canadian and

2 one-third Calidria.

3 Q. You knew your fiber went into the ready-mix

4 joint compound, true?

5 A. Ready-mix, yes.

6 Q. You knew that if the ready-mix joint

7 compound was sanded, some percentage of your fiber

8 would be liberated in the breathing zone of the

9 worker, true?

10 A. Possible, yes.

11 Q. But you never took any steps to make sure

12 that Georgia-Pacific warned the user to use wet

13 sanding to minimize those risks, true?

14 MR. JORDAN: Objection to the form.

15 A. We were selling to a sophisticated company

16 who had been using asbestos for many years before we

17 got on the scene and we were providing them with

18 information about asbestos that we knew, and also

19 sanding, recommending in our bulletin that if you

20 are going to sand to wear a respirator and we

21 assumed that they would pass that on. I don’t know

22 what Georgia-Pacific passed on to their customers.

23 Q. Yes, sir, but you made recommendations

24 because you thought what they were doing wasn’t the

25 safest way to sell the product, right?

1 MR. JORDAN: Objection to the form.

2 A. No.

3 Q. You thought it was safe to sell the

4 product with a label that didn’t mention wet

5 sanding?

6 MR. JORDAN: Objection to the form.

7 A. No. I’m not saying that. I’m saying I

8 recommended to them when they were considering

9 putting a label on about sanding, that our brochure

10 said wear a respirator when you do it and I

11 recommended that you put on the label that you wet

12 sand or wet sponge. If it was feasible when you

13 sanded.

14 Q. But they never did it, sir, right?

15 MR. JORDAN: Objection to the form of

16 the question.

17 A. I don’t know if they did or not. I never

18 followed up and went downstream that far.

19 Q. Sir –

20 A. It was Georgia-Pacific’s decision. It

21 wasn’t my decision on what they put on their label.

22 Q. You testified in 12 trials, 10 depositions

23 and you are telling me to this day you don’t know

24 whether they followed your recommendations or not?

25 MR. JORDAN: Objection to the form.

1 A. That’s what I’m testifying, yes, I don’t

2 recall.

3 Q. And when did your investigation for the 80

4 hours or so to prepare for this deposition, you

5 never found out whether Georgia-Pacific actually

6 followed your recommendation?

7 A. That’s correct.

8 MR. JORDAN: Objection to the form.

9 Q. Now, when you sold the product, the

10 Calidria fiber, you had written terms and conditions

11 for selling the product, true?

12 A. Yes, there was standard terms on the

13 invoice.

14 Q. For instance, you would actually tell them

15 that unless they unless a customer purchased X

16 pounds of the product, you weren’t even going to

17 sell it to them, right?

18 A. I never recall saying that. That would

19 have been in the form of a contract.

20 Q. Let me back up for a second.

21 When you were selling the product to

22 Georgia-Pacific and other customers, did you ever

23 look to determine where they put the label on their

24 product, if at all?

25 A. No, I don’t recall.

1 Q. How many years did you sell Georgia

2 Pacific asbestos?

3 A. Well, I believe the first sales were in

4 970 through, I want to say ’76 to ’78. Somewhere in

5 there. By the end of ’78 there was no one using

6 asbestos in joint cement.

7 Q. For those eight years how many tons of

8 asbestos fiber would you estimate that you sold to

9 Georgia-Pacific?

10 MR. JORDAN: Objection to the form.

11 A. I would have to look at our sales record.

12 I don’t know that offhand.

13 Q. Hundreds of thousands of tons, sir?

14 A. No. The capacity of the plant was only 30

15 thousand tons a year, so it couldn’t have been

16 hundreds of thousands of tons.

17 Q. Do you have an estimate, sir?

18 A. No.

19 Q. For the eight years you sold this product,

20 what you are telling this jury is you never once

21 looked to find out what Georgia-Pacific or any other

22 customer was telling the ultimate consumer about the

23 dangers of asbestos in using joint compound, is that

24 correct?

25 MR. JORDAN: Objection.

1 A. Did I look at the label? Is that the

2 question?

3 Q. Yes.

4 A. No, I didn’t.

5 Q. You had big customers like Georgia

6 Pacific, Union Carbide, you actually entered into

7 contracts with them for the sale of fiber, right?

8 A. If they wanted to enter into a contract

9 there were a couple of strikes in Canada that I

10 recall that we got into a no win situation because

11 there was no Canadian fiber available. The only way

12 to fairly distribute our product was to try to get a

13 contract usage with the customer so we could do it

14 by standard terms.

15 Q. And other times you had letter agreements

16 for terms and conditions of sale. There is what it

17 was called, right?

18 A. The terms of sale I believe were on the

19 back of our invoices.

20 Q. And what would be included in the terms of

21 sale, to your recollection?

22 A. Things like FOB shipping point, number of

23 days until the invoice is due. There was probably

24 some legal terminology in there about liability or

25 something like that. That’s the extent I recall.

1 Q. Wasn’t it all about money?

2 A. What do you mean?

3 Q. The terms of sale was all about money?

4 A. Well, there was a dollar figure multiplied

5 by the number of pounds on the front of the invoice.

6 Q. There would be a penalty if they didn’t

7 pay you in time, right?

8 A. I don’t know of any instance where

9 somebody — the invoices were typically due in 30

10 days. Not everybody paid us in 30 days. I know of

11 no instances where we charged somebody interest or a

12 penalty for not paying us in 30 days.

13 Q. As a salesman did you track pretty close

14 who was overdue on their payments to you?

15 A. No, I left that up to the people in King

16 City.

17 Q. Did King City know when people were

18 overdue on their accounts?

19 A. Yes. If we had an account who was — I

20 mean really badly overdue, somebody from King City

21 would call the salesperson and they would either

22 personally go in or make a phone call and see what

23 the problem was that we weren’t getting paid and

24 report back.

25 MR. JORDAN: Can I ask a timing

1 question? I assume you are going to take a lunch

2 break?

3 MR. PLACITELLA: Yes, sure. When do

4 you want to break?

5 MR. JORDAN: Maybe a good time to

6 take a restroom break.

7 MR. PLACITELLA: In a minute. Let me

8 just finish this line of questioning.

9 MR. JORDAN: Thank you.

10 Q. As part of your terms and conditions of

11 sale you never required the customer to warn the end

12 uses about the dangers of asbestos, right?

13 A. Not that I’m aware of it being on our

14 invoice. If that’s — is that what you mean?

15 Q. Yes.

16 A. I don’t recall it being on our invoice

17 that we required the user of our product to warn.

18 Q. And in the contracts that you signed for

19 the sale of your product, you never required that

20 the customer put a warning on their product, right?

21 A. I don’t know. And again, contracts were

22 very limited. They only occurred during the strike

23 periods in Canada so that we could equitably

24 distribute material. I don’t believe we did.

25 Q. You, Union Carbide, could have required,

1 as a condition, for purchasing the product that a

2 warning go to the end user and you chose not to,

3 true?

4 MR. JORDAN: Objection to the form.

5 A. It wasn’t my decision. I don’t know of

6 anybody, any supplier who had those kind of terms on

7 their invoice or required that.

8 Q. Well, who’s decision was it?

9 A. I don’t know. It was not mine.

10 Q. Who in the company would have had the

11 power to require that the customer warn the ultimate

12 consumer as a condition for buying your asbestos?

13 MR. JORDAN: Objection to the form of

14 the question.

15 A. Well, I guess there could have been a

16 number of people. Could have been Dr. Dernehl in

17 the medical department. It could have been of the

18 legal department. It could have been the marketing

19 department.

20 I would have thought that there would have

21 been a joint meeting if that was going to be terms

22 of sale and the decision would have been made among

23 those people.

24 Q. But it was never done, true?

25 A. To the best of my knowledge, no.

1 Q. How many people died as a result of their

2 decision, sir?

3 MR. JORDAN: Objection to the form of

4 the question. Argumentative.

5 A. I don’t know.

6 MR. PLACITELLA: We will take a break now.

8 (Recess taken.)

10 Q. Mr. Walsh, when you started to sell the

11 Calidria asbestos product, you were selling it in a

12 fairly hostile environment in relation to asbestos,

13 weren’t you?

14 A. In some places, yes.

15 Q. Because of all the publicity about

16 asbestos and health there were at least some

17 customers who really resisted the whole notion of

18 putting asbestos in their products, true?

19 A. Most of the customers that I called on for

20 our standard grade products already were asbestos

21 users. So obviously they had experience and they

22 knew what was going on.

23 I would encounter it more so with our

24 silica coated fiber, which was not a competitive

25 material to the Canadian fiber. Those users didn’t

1 always use asbestos or have the knowledge.

2 Q. You were also selling in an environment

3 where even the people who had used — companies that

4 used asbestos for some time were threatening to go

5 asbestos free, right?

6 A. When I started with Georgia-Pacific in ’72

7 they already had asbestos free formulations. The

8 difficulty was that they didn’t work very good and

9 they were very expensive. So I started with like a

10 sort of over my head, if you want to say that.

11 Q. And because of that Union Carbide kind of

12 had a philosophy about how they were going to

13 approach those kinds of customers?

14 A. I’m not aware of any philosophy. Do you

15 have an instance we are talking about?

16 Q. If somebody would raise the question with

17 you what about the dangers of asbestos, one of the

18 things that was counseled at Union Carbide was to

19 put the customer on the defensive?

20 A. That sounds very much like you are talking

21 about a correspondence of Larry Ingles wrote about

22 setting the mood and putting people on the on

23 offensive. During the entire time I worked for

24 Union Carbide I never seen any salesperson use that

25 kind of technique. It just wasn’t done.

1 Q. Who was Mr. Ingles?

2 A. Blair Ingles was a salesperson with the

3 Calidria group. When I first started he was in

4 sales and then he went with Dr. Rhodes and started

5 the air monitoring program that we provided at no

6 cost to our customers.

7 Q. You have a document in front of you marked

8 P-6 dated June 22, 1972, correct?

9 A. Yes.

10 Q. I put a blowup of the document on the

11 screen. Unfortunately it is a little lighter given

12 the way the project is handling it?

13 A. I’m glad I have a copy.

14 Q. The document you have in front of you is

15 from Mr. Ingles to your boss, right?

16 A. Yes, correct. His bosses, too.

17 Q. And to his boss. And he sets forth what

18 his philosophy is when he is dealing with customers

19 out in the field, correct?

20 A. That is what Blair said, yes.

21 Q. Who did you sell to, Blair?

22 A. I believe he was responsible for the

23 northeast part of the United States.

24 Q. Including New Jersey?

25 A. Yes.

1 Q. Okay. What he says, the first thing you

2 got to do is set the mood, right?

3 A. You know. I said initially. I know

4 Blair. Blair had a bad day or a bad week of calls

5 and he come come back frustrated to death.

6 If you knew Blair you would understand

7 this. I knew Blair. He also said some good things

8 in here. If you look at –

9 Q. I only asked one question. He said set

10 the mood.

11 A. I want to refer to these before we — you

12 referred to the letter, correct? I want to go down

13 with two, three four and five.

14 Q. Sir, with all due respect, it is my

15 deposition. I’ll ask the questions. If your lawyer

16 thinks I’ve asked – I have been unfair in any way,

17 then he has the ability to ask you questions when

18 I’m done. Okay?

19 A. Fine.

20 Q. The first thing he said when he wrote to

21 your boss and your boss’ boss was you had to set the

22 mood, right?

23 MR. JORDAN: Objection to the side

24 bar comment.

25 A. That is what Blair said, yes.

1 Q. He says controlling the conversation is

2 paramount, right?

3 A. That’s what it says.

4 Q. He says if the customer is persistent and

5 threatens to eliminate asbestos, a certain amount of

6 aggressiveness may be effective. Words and catch

7 phrases such as premature, irrational or avoiding

8 the inevitable will sometimes turn the table.

9 Do you see that?

10 A. Yes. If you knew Blair you would know

11 that none of these things was his personality.

12 Q. Okay, sir. It says the main objective is

13 to keep the customer on the defensive. Make him

14 justify his position. Most customers who call are

15 on the offensive, often prepared with the loaded

16 questions and expecting an argument. Change the

17 mood before discussing anything pertinent about new

18 regulations. Alternate between an aggressive and

19 submissive attitude is confusion and allows you to

20 bide your time.

21 Sir, could you tell me why it would ever

22 been the philosophy of any salesperson who is

23 selling a product talking about the dangers of a

24 product, to confuse a customer? Why would that ever

25 be the philosophy?

1 A. I never encountered what Blair is talking

2 about. I don’t know that he encountered it. He had

3 problems and I think –

4 Q. Go ahead.

5 A. Go ahead.

6 Q. Do you know whether Blair was ever

7 sanctioned or penalize by your boss for carrying on

8 this kind of conduct?

9 A. To the best of my knowledge he wasn’t, no.

10 Can I ad here?

11 Q. You are answer my questions. Thank you,

12 very much.

13 A. But I have some pertinent information if

14 you continue on with Blair to get a better feel for

15 him.

16 Q. I don’t need a better feel for him right

17 now, sir.

18 Now, this is the document I think I showed

19 you before marked P-3.

20 MR. JORDAN: Thank you. I’m not sure

21 whether this is privileged or not at this point. We

22 don’t waive any privilege objections.

23 Q. Mr. Thurber, who authored this is, I don’t

24 know if I asked you this question. What was his

25 official position at Union Carbide?

1 A. I don’t know what his title was. I know

2 he was responsible for the asbestos part of the

3 metals division. It was like tungsten, vanadium,

4 asbestos were all separate groups within metals and

5 they reported to Bill, who report to John Rawlings

6 who what you the president of the metals division

7 I’m not sure what his title was. Might have been

8 vice-president or whatever.

9 Q. He is writing this letter to the

10 president?

11 A. Yes.

12 Q. And go back again to the first paragraph,

13 second page. Do you see that? It says, and I blew

14 it up.

15 However, this area is under increasing

16 pressure from the likes of Dr. Selikoff primarily

17 because of the dust generated during sanding of

18 joint compounds.

19 A. Yes, I believe Dr. Selikoff had just

20 published a report about that time.

21 Q. It says, “If the occupational health

22 question can be managed, we should enjoy increased

23 sales in this group.”

24 Do you see that?

25 A. Yes, I do.

100

1 Q. Why would a company ever want to manage a

2 question about occupational health in order to make

3 sure the sales continued?

4 MR. JORDAN: Objection to the form.

5 Go ahead.

6 A. I don’t know why Bill Thurber used the

7 word managed. I don’t know that we ever could

8 manage the occupational health question because we

9 were such a small factor in the total asbestos

10 market. I don’t know why he used the word manage.

11 Q. He is talking about managing with your own

12 customers, right? In other words, when they ask you

13 questions, you had to give them some kind of

14 explanation otherwise they weren’t going to buy the

15 product, right?

16 A. No, That wasn’t — it was the customer’s

17 choice whether he bought the product or not. I

18 tried to give him the information that we had about

19 the asbestos and health issues.

20 Q. We will get to that later.

21 MR. JORDAN: Objection to the side

22 bar.

23 Q. You considered the customer’s position

24 concerning what they were hearing about the dangers

25 of asbestos as an over reaction, right?

101

1 A. No, I don’t think so. They were

2 interested. The customers I called on, the plant

3 managers and the QC people were interested primarily

4 when I started in 1972 on the asbestos regulation,

5 what had to be done to be in compliance with it, and

6 I explained the air monitoring and the medical exam

7 requirements of the regulation.

8 Q. You, Union Carbide, your critical

9 objective was to stop the customer’s over reaction

10 about the issue of asbestos and health as it related

11 to your product, true?

12 A. No.

13 MR. PLACITELLA: Do you have this on

14 your computer?

15 MR. JORDAN: CC08.

16 A. Are we done with this?

17 Q. Yes. I put up here and if we need to go

18 back into it after lunch we will, I put up here the

19 1965 action plan for tape joint mud asbestos health

20 problem. From H.B. Rhodes. He was your boss,

21 right?

22 A. Yes.

23 Q. And it was to Mr. Thurber who was his

24 boss, right?

25 A. I don’t see any names on here. Okay, W.C.

102

1 Thurber.

2 Q. It says critical objective. Do you see

3 that?

4 MR. JORDAN: I’m going to object.

5 All we have is a document on the screen. Can you

6 show the document to the witness? we are asserting

7 privilege on this.

8 MR. PLACITELLA: Okay. The basis for

9 the privilege is?

10 MR. JORDAN: Attorney/client

11 privilege.

12 MR. PLACITELLA: The lawyer who wrote

13 this is who?

14 MR. JORDAN: I don’t have the whole

15 document in front of me.

16 MR. PLACITELLA: How do you know it

17 is privileged?

18 MR. JORDAN: Somebody just whispered

19 in my ear it is on my list.

20 Q. It says critical objective. To establish

21 and maintain a program to minimize and if possible

22 prevent inroads into our market positions in tape

23 joint compounds resulting from over reaction to

24 asbestos health hazard publicity and from OSHA

25 compliance problem.

103

1 Is this the first time you ever heard

2 about that, sir?

3 A. No, I believe that there was some over

4 reaction to asbestos health problems, but what I’m

5 saying is the people that I called on were

6 interested in the asbestos regulation and what was

7 required to meet them. I didn’t run into over

8 reacting customers.

9 Q. But the critical objective was to minimize

10 and, if possible, prevent inroads into your market

11 by dealing with over reaction to the asbestos health

12 hazards. That’s what your boss wrote in 1975, true?

13 A. That’s what he wrote, yes.

14 Q. Now, in addition to whatever you were

15 doing, you, Union Carbide –

16 A. Okay.

17 Q. Were doing, you, Union Carbide also used

18 trade associations to do your bidding in managing

19 the asbestos health issue, didn’t you?

20 MR. JORDAN: Objection to the form.

21 A. I’m not sure who you are talking about.

22 What trade association?

23 Q. Were you a member of trade associations?

24 A. We were a member of the AIA, yes.

25 Q. The Asbestos Information Association of

104

1 North America it was called, right?

2 A. Yes.

3 Q. You were a founding member, correct?

4 A. I don’t know that if we were a founding

5 member. At one time Mr. Myers held a position.

6 Q. He was the president, wasn’t he?

7 A. He was the president for a period, yes.

8 Q. And you personally attended Asbestos

9 Information Association meetings on behalf of Union

10 Carbide, true?

11 A. I attended a couple of meetings, correct.

12 Q. Numerous other Union Carbide officials

13 attended Asbestos Information Association meetings,

14 true?

15 A. Not that I’m aware of. There may have

16 been other of our sales people attended. Maybe Bill

17 Thurber attended one or two, but we never came with

18 a gang or anything.

19 Q. Dr. Rhodes went didn’t he?

20 A. Dr. Rhodes did go.

21 Q. His boss, John Myers went, right?

22 A. I don’t know that they all went to every

23 meeting that they had.

24 Q. I understand.

25 A. They attended.

105

1 Q. And in fact you, Union Carbide, used the

2 asbestos information association to lobby the New

3 Jersey Legislature about regulations concerning

4 spraying asbestos, true?

5 MR. JORDAN: Objection to the form.

6 A. I don’t know what you are talking about.

7 I’m not aware of any documents I’ve seen that

8 indicate that there was any lobbying done by Union

9 Carbide.

10 MR. JORDAN: Can we see this

11 document?

12 MR. PLACITELLA: I’m going to get it.

13 One for you, counsel and we will have

14 have this marked.

15 (The document is marked as

16 P-8 for Identification.)

17 MR. JORDAN: Objection to this as

18 privileged.

19 Q. Have you ever seen this documents before,

20 sir?

21 A. I don’t recall it, no.

22 Q. This is for the record a document dated

23 July 25, 1977, originating department Calidria

24 asbestos and it is from your boss, right?

25 A. Yes, correct.

106

1 Q. And it is to his boss?

2 A. It is to Bob Byrne, who is his equal on

3 the other side. His boss and his boss’ boss.

4 Q. And his boss’ boss.

5 A. Boss’ boss.

6 Q. It talks about state regulatory activities

7 regarding asbestos in New Jersey, correct?

8 A. Yes. That’s the subject matter.

9 Q. It says in the second line, this letter

10 reports on recent regulatory activity affecting

11 asbestos in two states noted above. In essence, New

12 Jersey has backed off from the complete ban on the

13 spraying of asbestos-containing materials to a ban

14 on the spraying of friable asbestos materials

15 containing more than point two five percent by

16 weight asbestos. Do you see that?

17 A. Yes, I do.

18 Q. On this basis the spraying of roof

19 coatings, paint and similar materials of interest to

20 Union Carbide is still permitted, correct?

21 A. Correct.

22 Q. Then if you go down to the next paragraph,

23 the last sentence, it says it should also be noted

24 that Union Carbide acting in the name of the AIANA,

25 that’s the Asbestos Information Association of North

107

1 America, correct?

2 A. Yes.

3 Q. Made an important contribution toward this

4 workable regulation. Do you see that?

5 A. Yes I do.

6 Q. Is this the first time that you learned

7 that your boss was using the AIA to lobby the New

8 Jersey Legislature to stop a ban on asbestos?

9 MR. JORDAN: Objection to form of the

10 question.

11 A. I believe when the government or when

12 states begin to formulate regulations and such, they

13 ask for input from all affected parties. So I

14 believe the AIA or Union Carbide inputted, whether

15 it was through the AIA or directly or whatever, we

16 in putted what our thoughts were about the

17 regulation. I don’t think it is unusual that an

18 industry would comment on proposed regulations.

19 Q. I understand that. I’m not quarreling

20 with that. But what happened, according do this

21 memo is that Union Carbide used the AIA to do the

22 lobbying so no one would know it was them.

23 MR. JORDAN: Objection to the form.

24 Q. And that’s because Union Carbide had a

25 plant where they made asbestos in New Jersey and

108

1 they didn’t want anybody to know, right?

2 MR. JORDAN: Objection to the form of

3 the question,.

4 A. Union Carbide had a plant in New Jersey

5 that made asbestos?

6 Q. Bak-A-Lite.

7 A. They didn’t make asbestos. It is a

8 naturally occurring mineral. You can’t make.

9 Q. They made asbestos-containing products,

10 right?

11 A. Does this cover –

12 MR. JORDAN: If you know the answer.

13 if you need –

14 A. They could have had asbestos reinforcing

15 inside their plastics. Bak-a-Lite was a trade name

16 for Union Carbide’s polyethylene plastic lines.

17 Q. In the State of New Jersey, you, Union

18 Carbide, were manufacturing asbestos-containing

19 products, true?

20 A. I guess. They weren’t using Calidria

21 though.

22 Q. You had a plant in Bound brook, correct?

23 A. Yes. That was the plastics plant.

24 Q. What happened here was that you didn’t

25 want the New Jersey legislature to know that you

109

1 were opposing the asbestos regulations, so you used

2 the AIA, true?

3 MR. JORDAN: Objection to the form of

4 the question.

5 Q. That’s what your boss says, right?

6 MR. JORDAN: Objection to form of the

7 questions.

8 A. I don’t know. I can’t comment. I have

9 not seen this document before. All I can say is

10 when regulations proposed that they ask for input,

11 whether AIA inputted it or we inputted it or it went

12 through the AIA. I don’t understand what the issue

13 was.

14 Q. Why would Union Carbide try to hide the

15 fact from the New Jersey legislature that it was

16 opposing asbestos regulation?

17 MR. JORDAN: Objection to the form of

18 the question. No facts in evidence.

19 A. I don’t believe they are hiding.

20 Q. It should be also be noted that Union

21 Carbide, acting in the name of the AIANA made an

22 important contribution towards this workable

23 regulation. Does it say that?

24 A. Yes. it does.

25 Q. Now, sir –

110

1 A. Are we done with this?

2 Q. Yes, sir.

3 The original purpose of the Asbestos

4 Information Association was to hand out truthful

5 information to customers interested in asbestos,

6 true?

7 A. I don’t know what the charter was. I

8 think in the very, very beginning it was more or

9 less an association that handed out things like the

10 annual amount of material sold. And when the

11 regulation and publicity and everything like that

12 came, they developed brochures that could be given

13 to customers such as protecting the worker, safe use

14 of asbestos.

15 Q. Right. And in the beginning the charter

16 was, tell the truth?

17 A. I don’t know what the charter was. I nerve

18 read the chart of the AIA.

19 Q. Well, did you know when you went to the

20 meetings that they authored their mission and that

21 their mission was to do whatever it took to protect

22 your company and every other asbestos company?

23 MR. JORDAN: Objection to the form of

24 the question.

25 A. I never heard that as a mission.

111

1 Q. Let me show you what’s been marked P-7 for

2 Identification. Take your time in looking at it.

3 This is a document you have been shown before in

4 trials and depositions, true?

5 A. Yes, I’ve seen a lot of documents in

6 trials and depositions.

7 Q. This is an important document so take your

8 time and take a look at it.

9 A. Doesn’t mean I memorized it.

10 MR. JORDAN: Objection to the side

11 bar.

12 A. Thank you. Do I have that to read this

13 whole thing?

14 Q. No, you don’t, sir. I’m going to ask you

15 specific questions. I’m going to go to the cover

16 page now.

17 A. Okay.

18 Q. This document, for the record, is a letter

19 from the then president of the Asbestos Information

20 of North America to the president of Union Carbide

21 Corporation, correct?

22 A. Correct.

23 Q. August 3, 1973, correct?

24 A. Yes.

25 Q. And this isn’t just the president of your

112

1 division, this is the president of the entire

2 company, 60,000 employees, right?

3 A. That is correct.

4 Q. And cc’d at the bottom is who?

5 A. Bill Thurber.

6 Q. He was your boss’ boss, right?

7 A. Yes.

8 Q. Up on the top right there’s something that

9 says distribution. Do you see that?

10 A. Yes, I do.

11 Q. There’s a whole bunch of names with little

12 boxes.

13 A. Correct.

14 Q. Now, when this comes into your company it

15 doesn’t come in with that stamp with all the names

16 with the little boxes, somebody at Union Carbide

17 puts that stamp on the document, right?

18 A. I assume so.

19 Q. Because that’s where they want it to go,

20 right?

21 A. I assume so.

22 Q. Tell me do you recognize any of the names

23 on the stamped distribution list?

24 A. Yes, I do.

25 Q. Tell me who you recognize and what they

113

1 did?

2 A. Larrison was at one time the plant manager

3 out in Cape City. I don’t know if he still is.

4 Dick Morrison, R. O. Morrison is also out there.
Bob
5 Cronkite was a safety man out in King City. I don’t

6 know the next three or four because I really can’t

7 read it.

8 Down at the bottom G. L. Vessels was

9 office manager out there. M.K. West was Kemper

10 West who was the purchasing agent. The rest are

11 kind of gray. It looks like they are mostly King

12 City, California people.

13 Q. Except for there’s initials to the right

14 and the initials to the right are for your boss’

15 boss, right?

16 A. Yes, John Myers, J.W. Rawlings, I would

17 guess.

18 Q. That’s his boss, right?

19 A. We got so many bosses in here. Can we

20 just establish that John Myers — I worked for Harry

21 Rhodes who worked for John Myers who reported to

22 Bill Thurber, who reported to Jim Rawlings.

23 Q. I got the lineage down.

24 A. Got it.

25 Q. The only one excluded in the lineage was

114

1 you, right?

2 A. It also excluded our other salespeople.

3 Q. That’s concerning. Let’s move on.

4 MR. JORDAN: Objection to the side

5 bar.

6 A. I don’t know who F.H.C. is.

7 Q. Now, it says in the first paragraph, “Over

8 the past two and one half years, the Asbestos

9 Information Association slash North America, of

10 which your company is a member, has played a major

11 role in defending the asbestos industry from

12 unwarranted and irresponsible attacks by government,

13 labor, the press, certain segments of the medical

14 profession and by various environmental and consumer

15 activists groups. Do you see that?

16 A. Yes I do.

17 Q. So everybody who had something to say

18 about asbestos in the government and the medical

19 that was contrary to Union Carbide, they were the

20 enemy, right?

21 MR. JORDAN: Objection to the form.

22 Q. According to this.

23 A. I don’t think he said that. This was

24 really at the height of the asbestos publicity as

25 you — every night you could see something on TV.

115

1 Q. Right.

2 A. Or put it in your paper.

3 Q. Right you are, sir.

4 A. Some of it was slanted.

5 Q. Okay. It says attached for your

6 information is a copy of the presentation made by

7 Matthew Swetonic, Executive Secretary of the AIANA

8 to the Asbestos Textile Institute in June, right?

9 A. Yes.

10 Q. Now, this presentation, it didn’t just go

11 in the drawer of the president of Union Carbide, it

12 was circulated throughout the company, right?

13 A. Well, it was circulated certainly to the

14 people in King City.

15 Q. And your boss?

16 A. My boss, Rawlings and I’m not sure who

17 F.H.C. –I don’t know who F.H.C. is.

18 Q. Could you please flip to page 5 of the

19 speech, sir?

20 A. I’m there.

21 Q. By the way, in prior trials you have had

22 the opportunity to look at this before. This isn’t

23 the first time you saw it?

24 MR. JORDAN: Objection to the form.

25 A. The Swetonic speech?

116

1 Q. Yes.

2 A. No. This is the first time I’ve actually

3 seen his actual speech. I’ve seen references to it.

4 Q. It says, “In our original concept the

5 association would limit its activities to providing

6 accurate, unbiased information on asbestos and

7 health to the press, to the public and to interested

8 politicians and other governmental officials”,

9 correct?

10 A. Yes.

11 Q. Then it goes down a little bit and the

12 next paragraph it says, “Fortunately and properly,

13 the association has had the wisdom to alter its

14 original limited concept of its proper functions and

15 now endeavors to assume whatever activities and

16 responsibilities it deems necessary to protect the

17 interests of the asbestos manufacturing industry in

18 the United States vis-a-vis asbestos health.”

19 Did I read that correctly?

20 A. Yes you did.

21 Q. And then he goes on to talk about all the

22 things that, and you look at this at lunch, if you

23 think I’m mischaracterizing what was going on, and

24 then he tells the people what the good news and the

25 bad news is, right?

117

1 MR. JORDAN: Objection to the side

2 bar.

3 A. Without reading the whole thing, I guess

4 I’m taking your word for it.

5 Q. Go to — give my one second, sir.

6 A. Sure.

7 Q. Go to page 20.

8 A. Okay.

9 Q. Third full paragraph. After they accused

10 Dr. Selikoff of being deceptive in the first

11 paragraph –

12 MR. JORDAN: Objection to the side

13 bar comment.

14 A. Can I read the first photograph?

15 Q. Please read the whole page.

16 A. Okay.

17 MS. BANEZ: For the record, I would

18 like to object to the use of this document and

19 speech to the extent it in any way somehow would be

20 used against my client.

21 MR. PLACITELLA: That’s for another

22 day, Marissa.

23 MS. BANEZ: I’m putting it on the

24 record right now, Chris.

25 A. Okay.

118

1 Q. Sir, the essence of what is here is that

2 the AIA is quarreling with Dr. Selikoff’s estimates

3 about how many people are going to die from

4 asbestos, right?

5 MR. JORDAN: Objection to the form.

6 A. Yes, but I don’t think they were the only

7 ones who ever questioned Dr. Selikoff.

8 Q. What it says here is that you guys at the

9 AIA, you made your own estimates about how many

10 people were go to die, right?

11 MR. JORDAN: Objection to the form.

12 A. It sounds like that, correct.

13 Q. What he says is in the first place the

14 estimated numbers of employees in the industry is

15 too high. Five times too high, to be precise. Even

16 more important, according to an analysis by the

17 association of more than a dozen mortality studies,

18 including those of Dr. Selikoff, our prediction,

19 that means the AIA’s prediction, right?

20 A. Yes.

21 Q. Is that approximately 25,000 past and

22 present employees in the asbestos industry have died

23 or will eventually die of an asbestos-related

24 disease. Right?

25 A. Okay.

119

1 Q. Correct?

2 A. That’s what it reads.

3 Q. That was the bad news, right?

4 A. Well, I think Dr. Selikoff’s study was

5 done on insulation workers and I think what they

6 were trying to point out is that he was trying to

7 put it across the entire asbestos scope.

8 Q. Right. And when they did their estimates

9 they said, hey, if you look at it our way only

10 25,000 people are going to die, right?

11 A. I think it was an estimate at that time.

12 Q. And that was the bad news, right?

13 A. Yes, I would say any death is bad news.

14 Q. What was the good news, sir?

15 MR. JORDAN: Objection to the form.

16 A. Well, I guess you could say we now have as

17 he continues we have a chance to prevent any future

18 occurrences by cleaning up plants for the future.

19 Q. That wasn’t the good news he was talking

20 about, right, sir?

21 A. I don’t know. I didn’t read the entire

22 report.

23 Q. Go to page 15, sir.

24 A. Okay.

25 Q. Do you see the second full paragraph –

120

1 A. “And now having heard the bad side of the

2 public relations problem, it’s time for some good

3 news.”

4 Q. And now having heard the bad side of the

5 public relations problem, it’s time for some good

6 news?

7 A. Okay.

8 Q. And the good news is that despite all of

9 the negative articles on asbestos health that have

10 appeared in the press over the past half dozen

11 years, very few people have been paying attention,

12 right?

13 A. That’s what he says, yes.

14 Q. And what the president of your company did

15 was they then took this and circulated to your boss

16 and your boss’ boss so that they know the good news,

17 too?

18 MR. JORDAN: Objection to the form of

19 the question.

20 A. I don’t know.

21 Q. Now, sir, after it was disclosed –

22 A. Are we done with this?

23 Q. Yes, sir. After it was disclosed to the

24 president of your company and to your boss and your

25 boss’ boss that people weren’t getting the message

121

1 that asbestos was dangerous, can you tell me what

2 increased efforts Union Carbide made to make sure

3 the people out in the field were getting the word

4 about asbestos because obviously it wasn’t helping

5 up to this point in time?

6 MR. JORDAN: Objection to the form of

7 the question.

8 A. When you say people in the field, who do

9 you mean, our customers?

10 Q. Your customers and the people who use your

11 customers’ products. Did you increase, after this

12 speech, your efforts to make sure that the people

13 that were using your customers’ products would find

14 out that if they didn’t protect themselves they

15 could be one of the 25000 people who were going to

16 die?

17 A. We continued to inform our customers as we

18 did from day one about the latest information that

19 we had on the asbestos issue. We assumed they were

20 sophisticated and would pass on the information to

21 their customers.

22 Q. But see, sir, there is the problem. The

23 president of your company was told while you were

24 selling your product that what you were doing wasn’t

25 working. No one was paying attention.

122

1 Adn my question to you is what more did

2 you do to remedy that problem?

3 MR. JORDAN: Objection to the

4 question.

5 A. I don’t know what else we could have done.

6 MR. PLACITELLA: I’ll take a break

7 now for lunch.

9 (Luncheon recess taken)

12 MR. JORDAN: I want to put something

13 on the stenographic record. Kevin Jordan. Counsel

14 for plaintiff and I have had an opportunity to

15 discuss some issues associated with the use of

16 particular documents. There are certain documents

17 that we don’t think were contained within the

18 records previously produced. We are not objecting

19 on the basis other than there’s a possibility

20 documents are being used by plaintiff’s counsel in

21 this case are documents that are subject to

22 privilege objections by the Union Carbide

23 Corporation.

24 Rather than suspend the deposition at

25 this point to deal with those issues, counsel for

123

1 plaintiff and counsel for defendant have agreed,

2 Union Carbide, have agreed that we will continue on

3 with the deposition, that Mr. Placitella will ask

4 questions using documents and that within 30 days

5 Union Carbide Corporation will give him notice of

6 which documents we believe are privileged so we can

7 then deal with the issues of privilege.

8 In the interim the deposition will be

9 sealed until such issues are dealt with so that it

10 will not be given out to other parties and will be

11 under seal. And that at some such point, if the

12 court rules in favor of Union Carbide concerning

13 documents and the use of the documents in

14 deposition, then we will get the relief from the

15 court of having that portion stricken.

16 MR. PLACITELLA: The only thing I

17 would say is I’m okay with where that is, but under

18 our rules it would be your obligation to assert it

19 so I would like you to make whatever application you

20 think is necessary within 30 days. I don’t want it

21 to go beyond 30 days.

22 MR. JORDAN: We will agree to make

23 whatever application concerning privileged documents

24 to the court within 30 days.

25 There are a lot of defendants here.

124

1 Do any of the defendants have an objection to this

2 procedure? Speak now or forever hold your peace.

3 Okay. That’s it.

4 The only other thing I do object to

5 the use of the slide show or video and slide show to

6 the extent it is being spliced in with this

7 deposition, but that’s probably something we will

8 have to take up with the judge at pretrial.

9 MR. WARE: For Westinghouse, I join

10 in the objection.

11 MR. JORDAN: Thank you.

13 BY MR. PLACITELLA:

15 Q. Mr. Walsh, do you know whose predictions

16 were correct, Dr. Selikoff’s or your prediction on

17 the number of people that eventually died from

18 asbestos disease?

19 MR. JORDAN: Objection to the form of

20 the question.

21 A. I didn’t make any predictions, but I don’t

22 know whose prediction was correct.

23 Q. If 100,000 people so far have died from

24 asbestos-related disease, Dr. Selikoff would have

25 been correct, correct?

125

1 A. I would guess so.

2 Q. Now, this document was not shared with you

3 at any point in time, this speech, during the time

4 you worked for Union Carbide, correct?

5 A. I didn’t see Swetonic’s speech. I saw

6 references to it in other documents.

7 Q. And although you were produced here as the

8 person with the most knowledge about what Union

9 Carbide knew about the dangers of asbestos and what

10 they did about it, you had never been shown this

11 document before today?

12 A. I had not seen Matthew Swetonic’s speech,

13 no.

14 Q. In the 80 hours that you prepared for this

15 deposition, no one showed you this document?

16 A. That’s correct.

17 Q. Am I correct that so far your billing for

18 this deposition alone would be about $20,000?

19 MR. JORDAN: Objection to the form.

20 A. For this deposition?

21 Q. Yes.

22 A. The work I’ve done? this is a little

23 unusual. That’s roughly correct, but I have

24 normally been a fact witness and this is my first

25 time to be a corporate witness and I needed to get

126

1 more background, so that’s reasonably correct.

2 Q. And they still are big paying you $250 an

3 hour?

4 A. Correct.

5 Q. Are you here alone in New York City or are

6 you here with family members?

7 A. I’m alone.

8 Q. Union Carbide took extensive precautions

9 to protect its own workers who were foreseeably to

10 the Calidria product, true?

11 A. It was Union Carbide’s policy when I

12 joined in 1961 to give a medical exam on the first

13 day of employment and that carried read over to the

14 Calidria group when the plant opened in later ’63.

15 Q. And one of the things that you were proud

16 of was that it was almost impossible to be exposed

17 to asbestos if you worked in the manufacturing plant

18 where Calidria was processed, true?

19 A. I wouldn’t use the word impossible. We

20 had a patented wet process so the only real exposure

21 to asbestos fiber was in the bagging area where we

22 required respirators to be worn.

23 Q. Dust was eliminated at the manufacturing

24 plant through engineering, true?

25 A. We spent a lot of money making that as low

127

1 a dust level area as we could, yes.

2 Q. Everything was totally enclosed?

3 MR. JORDAN: Objection to the form.

4 A. The packaging was enclosed, yes. The rest

5 of the plant was not enclosed.

6 Q. The plant where they packaged the

7 asbestos, that was enclosed?

8 A. That general area, yes.

9 Q. And the rest of the plant had dust

10 collectors anywhere the product was used, right?

11 A. Not used. It was handled in a water

12 slurry until it got out of the dryer where it went

13 into the grinding operation, packaging area and then

14 on to the warehouse.

15 Q. It was either wet where it would produce

16 no dust, right?

17 A. Correct.

18 Q. Or when you had to eventually put it in a

19 package when it was dry, then there were all kinds

20 of engineering controls in place, right?

21 A. Yes. We tried to minimize dust.

22 Q. You spent a ton of money trying to make

23 that happen, right?

24 MR. JORDAN: Objection to the form.

25 A. We spent a lot of money, yes. I don’t

128

1 know what the figure was.

2 Q. In fact, the packaging station where

3 somebody would have potential to be exposed to your

4 fiber, you treated it and made it like a hospital

5 room, right?

6 A. I used that terminology in a call report

7 or deposition in the past, yes. I felt it looked

8 like that.

9 Q. All right. And you also went to extremes

10 to prevent any possible opportunity for a fiber from

11 your product to be carried home on somebody’s

12 clothing?

13 MR. JORDAN: Objection to the form.

14 A. We did have a change room at the King City

15 plant, yes.

16 Q. Now, your protocol was that if you could

17 even see the dust, just a little bit, you had to

18 wear a mask or respirator if you were working near

19 the product, right?

20 A. Our King City operation required that you

21 wore a dust collector if you were in the bagging

22 area or if you were in the warehouse area where an

23 occasional bag might be broke. Respirators were

24 required.

25 Q. But if you could see the dust, that was an

129

1 alarm for you to make sure the person was

2 protected?

3 A. Yes. There was also invisible dust that

4 you couldn’t see.

5 Q. But it was clear to you that where there

6 was visible dust, that was a potential hazard and it

7 needed to be dealt with, true?

8 A. Yes. Didn’t often occur. There were

9 broken bags occasionally. Not often.

10 Q. As long as you had visible dust in your

11 mind, Union Carbide, that meant protection had to be

12 used?

13 A. Well, that was what we did.

14 Q. When you went out into the field to sell

15 your product, did you tell the customer that if

16 there was any visible dust generated by your product

17 at any point that they needed to protect their

18 employees and the customers?

19 A. We recommended wearing respirators when

20 handling asbestos. I did.

21 Q. I think you told me that, but I’m not sure

22 we are connecting on this question.

23 My question is did you tell the customers

24 that visible dust was an alarm that they needed to

25 protect their workers from?

130

1 A. No. I think they already knew that because

2 they handled a lot of dry materials besides

3 asbestos, lime stone, talc, all of those were

4 visible dust materials.

5 Nobody wanted a dusty operation and we did

6 what we could to minimize it.

7 Q. That’s an assumption on your part?

8 A. What.

9 Q. It is an assumption that the customer knew

10 that if you could see the dust, that was an alarm to

11 make sure somebody is protected?

12 A. Most people knew that controlling dust of

13 any kind, there was a nusiance dust regulation also

14 was something you wanted to do, yes. Good

15 housekeeping was recommended by most companies we

16 called on.

17 Q. But did you specifically tell your

18 customers that if visible dust was generated in

19 handling your product, that was an alarm to make

20 sure their employees were protected?

21 A. That specific language, no.

22 Q. Did you tell your customers to warn the

23 consumer that if visible dust was created when using

24 the asbestos-containing products, that they needed

25 to protect themselves?

131

1 A. No.

2 Q. Did you tell your customers that anywhere

3 that your product was used to make sure it was

4 controlled like a hospital room?

5 A. No.

6 Q. Did you tell your customers to make sure

7 that any time the product generated dust in the end

8 product use, like joint compound, that the

9 environment needed to be like a hospital room?

10 A. No. The hospital room was — we had

11 exposures at our plant on an eight hour period or 24

12 hours a day, if we ran three shifts.

13 The customers’ exposure in most cases in

14 the joint cement industry was no more than 20

15 minutes, 30 minutes per eight hour period. So it

16 was a very limited exposure to the asbestos fiber.

17 Q. So you made a judgment then that those

18 people didn’t need to be warned to work in an

19 environment like you provided your own employees?

20 A. We provided the information to them that

21 we recommended that respirators be warn when they

22 were dumping asbestos as an added precaution. Most

23 of our customers had good housekeeping situations.

24 Q. Did you tell your customers that the work

25 environment in using your product needed to be as

132

1 clean as a hospital room in order to protect their

2 employees?

3 A. You keep using hospital room. We didn’t

4 tell them that. We told them you need to control

5 dust.

6 Q. Did you tell your customers that they

7 should be certain that their employees did not carry

8 home any of your product on their clothing?

9 A. To the best of my knowledge I don’t recall

10 that issue being asked or coming up.

11 Q. But you did take that precaution for your

12 own employees.

13 A. We did that because we had eight hour

14 continuous exposures.

15 Q. But there weren’t eight hour continuous

16 exposure when your employees went home?

17 A. Excuse me?

18 Q. When you employees went home, you weren’t

19 worried about eight hour continuous exposure, you

20 were worried about them bringing asbestos home to

21 their families.

22 A. We set up the change rooms, yes.

23 Q. You didn’t tell your customers that they

24 should protect their own workers’ families that way,

25 did you?

133

1 A. We didn’t dictate to our customers what

2 they should and should not do. We recommended that

3 respirators be warn and to minimize dust.

4 Q. Did you tell your customers that they

5 needed to warn the people using their products not

6 to bring any asbestos home on their clothing?

7 A. I had no contact, Chris. I sold to my

8 customer, who made a product, who shipped it to a

9 contractor, who, I guess, your client used that

10 material. I never knew who was the actual end user

11 of my customers’ product.

12 Q. Okay, but you knew that, for instance,

13 with joint compound people would sand the product,

14 right?

15 A. Occasionally, yes.

16 Q. You knew they would get the dust on

17 themselves if it wasn’t wet sanded, right?

18 A. You could get dust. Again, this was not

19 all. Just because you see different, it was not an

20 indication that all the dust you saw was asbestos

21 dust. A lot of it was encapsulated material. There

22 was a small amount of free fiber, but most of it was

23 encapsulated.

24 MR. PLACITELLA: I’ll move to strike

25 as nonresponsive and let me ask you the question

134

1 this way.

2 Q. You knew that people who were sanding

3 joint compound would generate some level of asbestos

4 dust in the air, true?

5 A. Possible to generate dust, correct.

6 Q. And they would get that on their clothing?

7 A. It could be, yes.

8 Q. Unless somebody told them not to bring it

9 home to their family, they would be bringing the

10 asbestos home on their clothing to their family?

11 A. I guess that could be.

12 Q. And you took no steps to make sure that

13 your customers warned the people using the joint

14 compound not to bring the asbestos home on their

15 clothing to their families?

16 A. There was some discussions. I’m trying to

17 look — I believe it was in the preamble to the OSHA

18 regulation about that specific subject. So that

19 OSHA regulation was part of the packet that I gave

20 to my customers. So if that suffices, then yes, I

21 did, in that form.

22 Q. So I’m clear, you took steps to protect

23 your own employees. You didn’t take any steps to

24 make sure that your customers warned the end user

25 about the potential danger of taking asbestos home

135

1 on their clothing.

2 A. We gave them the OSHA regulation, which I

3 believe refers to what you are talking about here,

4 that it could be possible that asbestos fibers would

5 be taken home.

6 Q. But you never required them to warn the

7 end user not to take the asbestos home on their

8 clothing?

9 MR. JORDAN: Objection to the form.

10 A. I couldn’t require Georgia-Pacific to do

11 that. Just like I couldn’t require them to use my

12 asbestos in their formula.

13 Q. Yes, sir.

14 A. They decided what they were going to do.

15 I didn’t decide for them.

16 Q. Yes, sir. You, Union Carbide had a

17 choice, correct?

18 MR. JORDAN: Objection to the form.

19 Q. You could sell or not sell the asbestos to

20 your customer. That was your choice.

21 A. Also the customers, to buy or not to buy.

22 Q. Correct. It was your choice in part to

23 sell or not sell?

24 A. Correct.

25 Q. And it was your choice in part to either

136

1 require them to warn or not warn the ultimate consumer?

2 MR. JORDAN: Objection to the form of

3 the question.

4 A. I don’t think I had a requirement. I

5 couldn’t require Georgia-Pacific to do anything.

6 Q. Sure. You could have said I’m not going

7 to sell this asbestos unless you warn. You could

8 have done that, but you didn’t.

9 A. We gave them the information that showed

10 it was possible and it was their decision, in my

11 mind, whether they were going to carry it further.

12 Q. But you had a decision to make. You could

13 have not sold it. You decided to sell it anyhow,

14 not knowing one way or the other who they were

15 warning about what. Right?

16 A. Yes. My job was a salesman. Is that what

17 you’re asking?

18 Q. Yes, sir.

19 (The document is marked as P-11 for

20 Identification.)

21 Now, you told me before about this. This is

22 exhibit P-11. You are familiar with this document?

23 A. Yes. It was part of my package for joint

24 cement customers.

25 Q. Could you tell the jury what this document is?

137

1 A. It is a technical information bulletin

2 that we gave to customers to give them a guideline

3 on how much Calidria was typically used in a joint

4 cement ready-mix formulation.

5 Q. This is a 1968 document, correct?

6 A. Yes.

7 Q. And it was still being used when you

8 started to sell the product in 1972, true?

9 A. Correct.

10 Q. For how long did you use this document

11 after you started selling the Calidria product?

12 A. Well, after making the initial calls on

13 the joint cement people, they all had kind of a good

14 indication on how to use it. So maybe once, twice

15 at the most.

16 Q. I’m probably not making myself clear. I

17 apologize.

18 Was there a time when you discontinued

19 using this document altogether?

20 A. There was a time when it is became

21 unnecessary. After the first call or two they knew

22 roughly how much to put in the formula. However,

23 the people I was calling on, all of them had their

24 own formulations.

25 Q. So, if you had a new customer in 1975

138

1 would you still use this document?

2 A. If I had a new customer?

3 Q. Yes.

4 MR. JORDAN: Objection to the form.

5 A. I could have.

6 Q. Now, this document has a section in it,

7 and you have been asked about this before, I

8 believe, called toxicological properties.

9 A. Correct.

10 Q. Under this section on the paragraph to the

11 right, I blew it up here?

12 A. I see it here.

13 Q. It says it is now generally accepted that

14 a man can work a 40 our week for a lifetime without

15 developing asbestosis if the asbestos dust particle

16 count is kept at or below 5 million particles per

17 cubic foot of air.

18 Did I read that correctly?

19 A. Yes, you did.

20 Q. This dust concentration of 5 million

21 particles per cubic foot of area is the threshold

22 limit value for asbestos.

23 No cases of asbestosis are believed to

24 have occurred when exposures have been maintained at

25 or below this level. Do you see that part?

139

1 A. Yes.

2 Q. It goes on then to talk about lung cancer.

3 Down a little bit further where it says recently?

4 A. Yes. There have been reports of some

5 cancers occurring.

6 Q. Recently there have been reports of some

7 cancers occurring in individuals exposed to asbestos

8 dust, but who have not developed clinical

9 asbestosis. It is believed by most authorities that

10 these cases have been associated with exposure

11 significantly exceeding the threshold limit value.

12 Did I read that correct?

13 A. Yes, you did.

14 Q. A major manufacturer of asbestos products

15 who also mined asbestos, has not been able to show

16 an increase in cancerous growths in men working

17 where dust concentrations were maintained at the

18 threshold limit value, correct?

19 A. Correct.

20 Q. When you went out to customers, what you

21 told them was that as long as the dust levels were

22 under the threshold limit values, no special

23 precautions were necessary, right?

24 A. No, we did not.

25 Q. You never said that?

140

1 A. No. We told them that they should keep

2 dust to a minimum. There was a lot of discussion at

3 this time period in ’68 about asbestos and what were

4 safe levels. AGCIH, I believe, put or proposed this

5 five number were thinking of maybe it isn’t. I

6 think it was a guideline of what would be considered

7 a level to look at.

8 Q. When you put this out it wasn’t. You,

9 Union Carbide put this out. It wasn’t the whole

10 truth and nothing but the truth, was it?

11 A. This came from our medical department, Dr.

12 Dernehl. I guess you could have expounded on this,

13 but I believe it was relatively accurate. It was

14 the only information we were passing out to

15 customers.

16 In 1968, up to the time the asbestos

17 regulation issued, we had a toxicology report which

18 was given to customers in 1968, late ’68.

19 Q. Yes, sir. You mentioned Dr. Dernehl, but

20 before you ever handed this to a single customer,

21 Dr. Dernehl had already told Union Carbide that it
no
22 longer applied, correct, and it couldn’t be relied

23 upon?

24 A. Well, first of all, it was a technical

25 information bulletin. The purpose of this document

141

1 was to indicate to a customer how much could be used

2 in a formulation. In addition to the toxicological

3 properties that are discussed here, we were also

4 handing out our medical department’s 1969

5 toxicological report.

6 Q. But this was the only document that you

7 had that specifically addressed joint compound,

8 true?

9 A. Yes. There was a later document, I

10 believe, in ’76 somewhere.

11 Q. Yes. I’m going to get to that.

12 And this document was not the truth and

13 nothing but the truth, true?

14 MR. JORDAN: Objection to the form.

15 A. I can’t answer that, the truth, nothing

16 but the truth.

17 Q. You told customers, you, Mr. Walsh, told

18 customers that as long as the fiber levels were kept

19 below the threshold limit value, it was safe. You

20 told them that.

21 A. No. We told them that that number was a

22 guideline. There was still debate on what was a

23 true, safe level for asbestos.

24 Q. You testified on June 28, 2002. Counsel

25 do you have the deposition?

142

1 MR. JORDAN: What page?

2 MR. PLACITELLA: Page 240, line 10.

4 Q. Question, so you never told any of your

5 customers that as long as they stayed below the

6 threshold limit value they were safe from

7 asbestos-related disease. Answer, we felt the

8 regulatory numbers were safe levels for using

9 asbestos. Question, and that’s what you told your

10 customers. Answer yes.

11 Do you recall giving that testimony under

12 oath, sir?

13 A. Yes. I do.

14 Q. And you gave that testimony under penalty

15 of perjury, true?

16 A. Correct.

17 Q. If you were told by reliable people within

18 Union Carbide that they did not believe the

19 threshold limit value was protective of human health

20 you would have stopped telling the customers that

21 regulatory limits were safe, true?

22 A. Sure. We told customers. What time

23 period are we talking about? 1972?

24 Q. Talking about the whole time that you used

25 that brochure.

143

1 MR. JORDAN: Do you remember what he

2 just said, the whole time that brochure was used.

3 A. This brochure was used once or twice at a

4 customer’s location. I mean after he knew roughly

5 how much Calidria to put in, we didn’t use that

6 brochure. This was not something I handed out every

7 call that I made on the same customer.

8 Q. If you were told by Union Carbide that the

9 threshold limit value could not have been relied

10 upon, you would not have told your customers the

11 exact opposite, true?

12 A. At the given time there was a lot of

13 controversy about what was a safe limit. We were

14 dealing with what the government thought to be a

15 guideline in determining that. I didn’t know of any

16 other guideline that indicated otherwise.

17 Q. Because it was kept from you, sir, right?

18 MR. JORDAN: Objection to the form of

19 the question.

20 Q. Your own medical director knew five years

21 before you ever joined the company that what was in

22 that brochure was a lie?

23 MR. JORDAN: Objection to the form of

24 the question.

25 Q. True?

144

1 A. I don’t believe I was lied to, if that’s

2 what you are saying.

3 Q. We will go there and see if I can convince

4 you otherwise.

5 MR. JORDAN: Objection to the side

6 bar cement.

7 Q. You were never told that there were people

8 within Union Carbide that believed that the

9 threshold limit value for asbestos that you were

10 putting in your material was not valid, true?

11 A. There was discussion about what was a safe

12 level at this particular time period. No one would

13 declare any number was safe or — it was a

14 guideline. You had to do a monitoring.

15 Q. In fact, in trial three years ago you were

16 asked point blank whether this information was up to

17 date and you said no, right?

18 MR. JORDAN: Objection to the form of

19 the question.

20 A. I said in the context of — I was giving

21 more up to date information to our customers than

22 what appeared in this brochure. The purpose of the

23 brochure again was simply to give guidance on how

24 much to put in the formula.

25 Q. I want to be really clear on this. Are

145

1 you telling this jury that you told your customers

2 that they should not rely upon the threshold limit

3 value as a standard for whether exposure was safe or

4 not?

5 A. We didn’t get into that kind of a

6 conversation as a general rule. I don’t recall that

7 question ever coming up.

8 The questions, as I said before, that came

9 up was what do we need to do to meet the regulation,

10 and my responses were an air monitoring and medical

11 exams.

12 Q. You told, you Mr. Walsh, told your

13 customers that if exposure stayed within the

14 threshold limit value, it was safe, didn’t you?

15 MR. JORDAN: Objection to the form.

16 A. That question didn’t come up.

17 Q. I’m going to come back to that. I want

18 you to think about it before you make that your

19 final answer. What was the name of that show? How

20 to be a millionaire? Do you remember that show?

21 A. No, I never watched it.

22 Q. Is that your final answer?

23 MR. JORDAN: Objection to the side

24 bar.

25 Q. I want to understand. I want to

146

1 understand here under penalty of perjury, is it your

2 final answer that you never told customers that if

3 they kept exposure below the threshold limit value

4 they were safe?

5 MR. JORDAN: Objection to the form.

6 A. The question never come up. What we did

7 tell customers is based on the dust monitoring we

8 had done, we felt that our product could be used

9 safely in the joint cement application. That’s what

10 we told the customers.

11 Q. And it could be used safely when you kept

12 the levels below the threshold limit, right?

13 A. What the regulation called for.

14 Q. In 1968?

15 A. In tox report –

16 Q. Excuse me. Let me ask the question.

17 When Union Carbide started handing this

18 out in 1968, it was aware that you could not rely

19 upon the threshold limit value as a standard between

20 save and unsafe, true?

21 A. There was a lot of controversy at that

22 time. I can’t comment on what was going on other

23 than there was a hot of controversy on what was a

24 safe limit in 1968, ’72, and I guess to this day.

25 Q. But you chose deliberately, do you

147

1 remember when I asked you whether you ever made a

2 mistake? Do you remember when we started?

3 MR. JORDAN: Objection to the form.

4 A. Yes.

5 Q. You made a deliberate decision to put

6 information in this brochure that said that if you

7 keep the levels below the TLV you will be safe?

8 MR. JORDAN: Objection to the form.

9 Q. Right? That was a deliberate decision.

10 That was not a mistake. That was the first question

11 I asked you out of the box, did you ever make a

12 mistake.

13 MR. JORDAN: Objection to the form.

14 Q. This is not a mistake.

15 MR. JORDAN: Objection to the form.

16 Q. It says — I’ll rephrase the question. It

17 is now generally accepted that a man can work a

18 forty hour week for a lifetime without developing

19 asbestosis if the asbestos dust particle count is

20 kept at or below 5 million particles per cubic foot

21 of air. That statements is not a mistake. That was

22 intentional, true?

23 A. I think it says generally accepted.

24 Q. Yes. That is not a mistake. That is

25 what — an intentional act by Union Carbide.

148

1 A. I don’t know what you mean by act, but I

2 think it is says it is generally exempted the

3 knowledge at the time was this.

4 Q. Right.

5 A. That’s what we but in the brochure.

6 Q. Yes, sir. And that information came from

7 Mr. Dernehl who was the assistant medical director,

8 true?

9 A. I believe that’s where it came from, yes.

10 Q. But you, Union Carbide, knew that this

11 statement was false in that it did not protect

12 somebody from getting mesothelioma, true?

13 MR. JORDAN: Objection to the form.

14 The basis is it mischaracterizes what is in this

15 case.

16 Q. The next page talks about cancer, right?

17 If you keep the level below the TLV you wouldn’t get

18 cancer. Isn’t that the import of what you are

19 saying, sir?

20 MR. JORDAN: Where are we at?

21 A. What line are you on?

22 Q. Recently there have been individuals

23 exposed who have not developed. Is it believed by

24 most authorities these cases have been associated

25 with exposures exceeding the TLV. Wasn’t the

149

1 importer of what you are saying if you kept the

2 levels below the TLV you won’t get cancer? Isn’t

3 that what you were conveying, sir?

4 A. I wasn’t conveying anything. I don’t know

5 what the thinking was by our medical people when

6 this toxicology section was put in this brochure.

7 Q. But when you started working for Union

8 Carbide this is what they handed you to hand out to

9 the customers.

10 A. Not for the toxicology portion of it.

11 Q. So you walked around to all your customers

12 and you said read the first part, but the second

13 part doesn’t count? Is that what you did?

14 A. I didn’t say that. Because the second

15 part second part did have some information in it.

16 Q. Sir, I don’t have a slide for this. Do

17 you know who these people are?

18 A. Oh, I believe those were — I know

19 Johns-Manville. I heard that, IHF, Saranac I don’t

20 know. OCI I heard of. I don’t know Mr. McLaughlin.

21 Apparently he worked for Union Carbide.

22 Q. Do you know he was one of the founding

23 members of the Industrial Hygiene Foundation?

24 A. I don’t know that that’s a factor.

25 Q. Do you know what the Industrial Hygiene

150

1 Foundation is?

2 A. I believe that’s a group similar to the

3 ACGIH.

4 Q. That was a group where you were a founding

5 member. You, Union Carbide, were a founding member

6 and a member of the board of trustees. Did you know

7 that?

8 A. This is 1945.

9 Q. That’s the scarey part.

10 MR. JORDAN: Objection to the side

11 bar.

12 A. We didn’t find the deposit until ’57, ’58.

13 Q. But you were selling, you, Union Carbide,

14 may not have been selling Calidria, but you were

15 selling asbestos products way back in the 1900s,

16 weren’t you?

17 A. I don’t know that to be a fact, no.

18 Q. No one ever told you that?

19 A. I’m here to testify about Calidria. I

20 don’t know if you are talking plastics or what.

21 Q. Mr. Hemmian, he is standing right behind

22 your guy from Union Carbide?

23 A. Yes.

24 Q. Were you ever told that Mr. Hemmian and
the
25 IHF authored a report all the way back into the

151

1 1940s saying that the TLV could not be relied upon

2 as a safety standard?

3 MR. JORDAN: Objection to the form.

4 A. I knew there was information out there

5 back in the ’40s about asbestos.

6 Q. But did you know that your company was

7 aware that you could not rely upon the threshold

8 limit value as a standard for safety as far back as

9 the 1940s?

10 MR. JORDAN: Objection to the form.

11 A. I don’t know what Mr. McLaughlin knew or

12 didn’t know.

13 MR. JORDAN: Can we take a bathroom

14 break?

15 MR. PLACITELLA: Yes. One second.

16 Q. This is the report authored by Mr. Hemmian

17 in 1947 and the report — I’m just asking if you

18 were told this. The information available does not

19 permit complete assurance that 5 million is

20 thoroughly safe nor has information developed

21 permitting a better estimate of safe dustiness

22 elimination of asbestosis depends on the degree of

23 control affected.

24 Did you know, were you ever told in the 80

25 hours you spent preparing for this deposition, that

152

1 Union Carbide had information in its possession back

2 in the 1940s that contradicted the very information

3 that you supplied to customers in 1968?

4 MR. JORDAN: Objection to the form of

5 the question. Do you have this document?

6 A. I have seen this document before in my 80

7 hours of preparation. I knew it was a continuing

8 ongoing situation on what was a true, save level of

9 asbestos. They are asking for complete assurance.

10 There was a standard in effect for 5

11 million that I believe was in effect until the Walsh

12 Heally Act reduced to it two and the OSHA act in ’72

13 further defined it. It was a constant situation in

14 flux.

15 Q. Right.

16 A. There was no cut and dry, here, and it

17 lasted forever.

18 Q. I’ll accept that, sir, but you would agree

19 with me at the very least there was a controversy

20 about whether it was safer or not?

21 A. Yes.

22 Q. And that existed from the 1940s, true?

23 A. Yes, I would agree with that.

24 Q. But in your brochure, sir, you don’t

25 mention anything about a controversy, you tell the

153

1 worker that if you keep it below the TLV you won’t

2 get sick, right?

3 MR. JORDAN: Objection to the form.

4 Q. Is the word controversy anywhere in this

5 brochure, sir?

6 A. No, you didn’t have to ask anybody.

7 Anybody out there had an opinion left or right of

8 asbestos, health issues. What is a safe level, what

9 isn’t.

10 Q. So how were who my clients, who were dying

11 or dead from mesothelioma who used Georgia-Pacific

12 figure and other joint compounds, supposed to know

13 that unless you told them? How were they supplied

14 to know?

15 MR. JORDAN: Objection to the form.

16 A. First of all, I didn’t know your clients.

17 I had no contact with your clients. My sale was to

18 Georgia-Pacific. I provided Georgia-Pacific with as

19 much information that I had available to me and –

20 Q. You handed to it them, sir, and you washed

21 your hands like punch’s pilot?

22 A. Not at all.

23 Q. Then what did you do, sir, to make sure

24 that my clients who were the end users knew that you

25 were aware that the TLV was no good? What did you do?

154

1 MR. JORDAN: Objection to the form of

2 the question. Becoming very argumentative.

3 A. Chris, I think I answered that. I didn’t

4 know your clients.

5 Q. I appreciate that.

6 A. My sale was to my customer, the joint

7 cement manufacturer.

8 MR. PLACITELLA: We will take a break

9 now. Thank you.

10 MR. JORDAN: Thank you.

11 (Recess taken.)

12 (The document is marked as P-14 for

13 Identification.)

14 Q. You have in front of you what’s been

15 marked P-14 for identification.

16 A. Keep this open?

17 Q. Keep that open, please.

18 A. Okay.

19 Q. This is — you are familiar with this

20 document?

21 A. Yes, I’ve seen this document.

22 Q. It is dated December 1967, correct?

23 A. Yes.

24 Q. Was authored by Mr. I.C. Sayers?

25 A. Ian Sayers.

155

1 Q. Who was Ian Sayers?

2 A. He was a salesman, I believe, in our U.K

3 office.

4 Q. He was more than a salesman, he had

5 like — he was the equivalent of your boss’ boss,

6 right?

7 A. I don’t think so. He reported to Tom Hale

8 over there. He was a salesman like I was, to the

9 best of my knowledge. I didn’t know he a special

10 Q. He had the same information available to

11 him that you had available to you?

12 A. I would think so, yes.

13 Q. And you have seen this in trials and in

14 depositions, correct?

15 A. Correct.

16 MR. JORDAN: Objection to the form.

17 Q. You don’t need to read the whole thing

18 now, right?

19 MR. JORDAN: Objection to the form.

20 A. I have not memorized the document, no.

21 Q. Could you turn to page 16, sir?

22 A. Okay, I’ m there.

23 Q. Do you see the section that says 6.3,

24 threshold limit value?

25 A. Yes.

156

1 Q. I want to ask you some questions about

2 this information that was available to you, sir.

3 It is understood –

4 MR. JORDAN: Objection to the form of

5 the question.

6 Q. Did you just not tell me, sir, that the

7 information in this report was equally available to

8 you as it was to Mr. Sayers?

9 A. Well, Mr. Sayers went to a library. I

10 didn’t go any library to get this information. I

11 was aware of the 5 million particles per cubic feet.

12 Q. How did you know he went to a library?

13 A. I think that’s where this information came

14 from. Mr. Sayers was a salesman. He was not a

15 doctor. He was not a medically trained person. And

16 he was having difficulties selling Calidria and he

17 was trying to find out why, so he investigated by

18 going to a library, or wherever his resource might

19 be. He didn’t know all of this information in this

20 reporter.

21 Q. So this information wasn’t supplied to him

22 by Union Carbide, it was just generally available?

23 A. I guess in the U.K. it was, yes. I don’t

24 know if it was available in the U.S. Could have

25 been.

157

1 Q. Are they more educated in U.K. than in the

2 U.S?

3 A. I don’t think so .

4 Q. It says here it is understood that the

5 maximum dust level of 5 million particles per cubic

6 foot, (still adhered to by the U.K. Factory

7 Inspectorate) was proposed by an engineer in 1938 as

8 an interim guide. This figure was an arbitrary

9 choice and had no experimental foundation.

10 Did I read that correctly?

11 A. Yes, you did.

12 Q. It says Dr. Taylor — who is Dr. Taylor?

13 A. I don’t know a Dr. Taylor.

14 Q. In his report of the International

15 Conference on the Biological Effects of Asbestos,

16 1964 says the maximum allowable concentration of

17 5 million particles per cubic foot is not now

18 acceptable, correct?

19 A. That was his opinion, yes.

20 Q. Industry should same aim at 1 million

21 particles and accept this figure with reservations

22 until our knowledge in this field is extended,

23 correct?

24 A. That’s what it says.

25 Q. Dr. Taylor reiterated this again two days

158

1 ago, but he did admit that practically 2 million

2 particles per cubic foot might have to suffice for

3 quite a while to come.

4 Did I read that correctly?

5 A. You did.

6 Q. He must have had a discussion with Dr.

7 Taylor?

8 A. He had a discussion with some doctor. I’m

9 not sure if it was Taylor or not.

10 Q. It now says it thus appears that the

11 sentence in Dr. Dernehl’s — he is the medical,

12 assistant medical director at Union Carbide?

13 A. Yes.

14 Q. It says it does appear that the sentence

15 in Dr. Dernehl’s asbestos toxicology report –

16 that’s the report you were handing to the customers,

17 right?

18 A. Correct.

19 Q. Quot –

20 A. One of a couple of reports. At this

21 particular time we are talking 1968.

22 Q. 1967.

23 A. All right. We had our 1964 toxicology

24 report available also.

25 Q. This is part of what was given to the

159

1 customer as the whole truth and nothing but the

2 truth?

3 MR. JORDAN: Objection to the form.

4 A. We nerve presented the report in that

5 frame.

6 Q. That’s interesting. It is now generally

7 accepted that a man can work a 40 hour week for a

8 lifetime without developing asbestosis. If the

9 asbestos dust particle count is kept at 5. At or

10 below 5 million particles of air.

11 Do you see that?

12 A. I do.

13 Q. That’s what you were handing out, right?

14 You, Union Carbide?

15 A. As well as the toxicology report, yes.

16 Q. He is quoting from the toxicology report.

17 A. Yes.

18 Q. So you had it not only in the toxicology

19 report, you had it in the joint compound report.

20 A. It was in the joint compound, yes.

21 Q. The same thing that is up here on the

22 screen. You said the same thing in both places.

23 A. Yes.

24 Q. Then he goes on to say it, is now no

25 longer held to be true by a number of informed

160

1 people. An indication of the present opinion on

2 this matter held by Union Carbide’s toxicology

3 department would be most welcome, right?

4 A. That’s correct.

5 Q. What he wants –

6 A. From there on out is Ian Sayers’ opinion.

7 Q. Yes, sir. What he wanted to know is based

8 upon his research as a lay person if this was true,

9 correct?

10 A. Yes.

11 Q. Because he was worried because this is

12 what he was telling people. He was handing people

13 this report.

14 A. I don’t know what was behind his thinking.

15 I think he was trying to find out why he was having

16 difficulty in selling Calidria. Also, was there any

17 new information that would be updated in the

18 reports?

19 Q. Yes, sir. And he wanted to do the right

20 thing. Would you agree?

21 A. Yes, I’m sure he did.

22 Q. So what he did is he sent this entire

23 report across the ocean to the assistant medical

24 director who wrote the toxicology report and said is

25 this true, correct?

161

1 A. Say that last part again?

2 Q. I’m sorry, sir, that’s probably my fault.

3 This man wanted to know the truth, true?

4 A. He wanted to know the latest information.

5 I don’t know about the truth.

6 Q. He didn’t want do convey false

7 information?

8 A. Correct.

9 Q. So what he did is he then went to dr.

10 derhehl, who wrote the report.

11 A. Right.

12 Q. And said I’ve done this research. It

13 seems like what we are telling people isn’t true.

14 Is it true or not?

15 A. Okay. He was asking for an update on the

16 information.

17 Q. What did Dr. Dernehl tell him?

18 A. I think Dr. Dernehl told him that

19 essentially most of what he had was basically

20 correct. There was information coming in at that

21 particular time period here that indicated studies

22 were being done, and again, it was a flexible

23 situation that changed month by month or year by year.

24 Q. Yes, sir.

25 A. I mean, eventually, as I understand it,

162

1 what was a result of this was the 1969 toxicology

2 report that Dr. Dernehl put out as an update based

3 on new information and the fact that the Walsh Healy

4 act was going to reduce the level from 5 to 2 anyway,

5 and it also mentions something you were referring to

6 before as possibly not being a safe level.

7 So there was nobody out there saying this

8 is definitely a safe uncontroverted level. We never

9 said that.

10 Q. Sir, do you remember what my question was?

11 A. Long time ago. I think I answered it.

12 Q. I’ll move to strike your answer then, if

13 you can’t remember my question. Can we agree?

14 MR. JORDAN: Objection. I think

15 that’s for the judge.

16 (The document P-13 is marked for

17 Identification.)

18 Q. Sir, let me show you what’s been marked

19 P-13 for identification.

20 A. Are we done with this?

21 Q. No. Keep it on the side, please.

22 You are familiar with this document,

23 right, sir?

24 A. I’ve seen this letter before. This is a

25 horrible copy.

163

1 Q. That’s the best I got. Maybe your counsel

2 can get a better copy.

3 A. I can read the first page.

4 Q. I know it is.

5 A. The second is ridiculous.

6 Q. This was Dr. Dernehl’s response to the

7 question put to him by Mr. Sayers, right?

8 MR. JORDAN: Objection to the form.

9 Q. Sir?

10 A. This is a response to Ian Sayers’ boss for

11 the letter he wrote.

12 Q. What happened here was Ian Sayers gave it

13 to Dr. T.J. Hall. What was his job?

14 A. As far as I knew Dr. Hall was part of the

15 asbestos group way, way back in the beginning and at

16 this particular time I think Ian Sayers had accepted

17 a position in the Geneva office and that is where he

18 was working for Dr. Hall.

19 Q. Okay. What happened was the response was

20 sent back to Dr. Hall to answer the questions that

21 Mr. Sayers had raised, correct?

22 A. It wasn’t sent back to Dr. Hall to answer

23 the questions. Dr. Dernehl was replying to Ian

24 Sayers’ report.

25 Q. Yes, sir.

164

1 A. And giving his response to those reports

2 to Dr. Hall.

3 Q. Yes, sir, and what happened was that the

4 assistant medical director for Union Carbide, Dr.

5 Dernehl said he read the report, correct?

6 A. I reviewed the report, yes.

7 Q. Prepared by Mr. Sayers and in general I

8 find it reasonably accurate. Did he say that?

9 (The document P-13A is marked for

10 Identification.)

11 A. Yes, I said that.

12 Q. He also commented on the fact that Union

13 Carbide had done some internal studies about how

14 dangerous their fiber was, correct?

15 MR. JORDAN: Objection to the form.

16 A. That’s your terminology, dangerous studies.

17 Q. Whether it was dangerous or not?

18 MR. JORDAN: Objection to the form.

19 Q. It says, “We therefore made some

20 preliminary studies in which the material was

21 injected into the belly cavity of guinea pigs,

22 rats and rabbits and also was injected

23 intratrachealy by a method which distributes

24 the asbestos throughout the lungs of rats.”

25 Do you see that?

165

1 A. Yes.

2 Q. What happened there he wrote back and he

3 says, “In the injection study the Calidria refined

4 fiber produced the most severe reaction in the belly

5 cavity whereas the standard fiber basically did

6 not.”

7 Correct?

8 A. Yes. I think — I don’t know if I can read

9 that. It was compared to a Johns-Manville fiber. I

10 think it was recognized to be a crude test in that

11 it was injected and airborne asbestos is the health

12 issue. However, they found that the Calidria fiber

13 was slightly more fibrogenic than the Johns-Manville

14 fiber, but not sufficiently enough to make any

15 distinction between the two fibers.

16 Q. So in other words, they found it was more

17 dangerous than the Manville fiber, but not enough to

18 tell anybody, right?

19 MR. JORDAN: Objection to the form of

20 the question.

21 A. Slightly more dangerous is what I said.

22 Q. But not enough to tell anybody, right?

23 A. Not enough that it would make any

24 difference in our toxicology report.

25 MR. JORDAN: Objection to the form.

166

1 Q. Yes, sir, and in fact this study that was

2 done was never published in the medical literature,

3 it was buried, right?

4 MR. JORDAN: Objection to the form.

5 Argumentative.

6 A. We didn’t bury anything, Chris.

7 Q. Was it published in the medical

8 literature?

9 A. I don’t know if it was or not.

10 Q. Did you tell your customers that the Union

11 Carbide fiber was more dangerous relatively ly

12 speaking than the Johns-Manville fiber?

13 MR. JORDAN: Objection to the form of

14 the question. Danger is not included within this.

15 You are making that up, Chris.

16 MR. PLACITELLA: I’m not making

17 anything up.

18 A. Does it say danger in here?

19 Q. More fibrogenic. That means it causes

20 more disease, right?

21 A. More fibrogenic means it makes marks. I

22 don’t know if it causes more disease. It depends

23 upon how long a period you are exposed to the fiber

24 and at what levels you are exposed to it.

25 Q. But when you compared Manville fiber to

167

1 Union Carbide fiber it marked up the lung more

2 than –

3 A. A little bit more. Slightly more, but Dr.

4 Dernehl’s opinion, which I believe he wrote after

5 this information, indicated that it did not do it in

6 a significant amount to make it any different than

7 regular Chrysotile asbestos. Our fiber was no

8 different.

9 Q. So somebody made a judgment at Union

10 Carbide not to tell their customers that they did a

11 study that showed that your fiber was more

12 fibrogenetic than the Manville fiber, true?

13 MR. JORDAN: Objection to the form of

14 the question.

15 A. I think we wanted to know how it compared

16 to other asbestos fiber. It was a different form.

17 It was a little purer. It occurred in bundles and

18 there were also some other side issues, I believe,

19 about silicosis involved in these studies.

20 It really didn’t relate that much to a

21 joint cement manufacturer and why the decision was

22 made to not publish it, I don’t know.

23 Q. Okay, sir. Were you ever told about this

24 study while you were selling the fiber, sir?

25 A. Not that I recall.

168

1 Q. Is that something you would have wanted to

2 know?

3 A. Not particularly because the injection

4 didn’t really relate to how the fiber was used. And

5 where the health problem could exist, which was

6 breathing airborne asbestos. We weren’t injecting

7 our customers with Calidria.

8 Q. Not intentionally, sir, right?

9 A. Never.

10 Q. Now, the question was eventually answered

11 by Dr. Dernehl wasn’t it, when the question is does

12 the TLV apply anymore. The answer it was eventually

13 by Dr. Dernehl in this letter, wasn’t it?

14 MR. PLACITELLA: Objection to the

15 form. Where are we at?

16 A. I don’t know. I can’t read the second

17 page.

18 Q. The question that was asked by Mr. Sayers,

19 through Dr. Hall was whether the statements that Dr.

20 Dernehl was making in the asbestos toxicology report

21 could be relied upon anymore. Right? Wasn’t that

22 what went on in this document?

23 MR. JORDAN: Get a clean copy.

24 A. I don’t know. I can’t read that second

25 page.

169

1 Q. Could you –Your lawyer will bring it up.

2 MR. JORDAN: We will find one.

3 A. I know we eventually got to the answer as

4 more data came in and we issued an updated

5 toxicology report in ’69.

6 Q. Okay, sir. What Dr. Dernehl told

7 Mr. Sayers and his boss was that it was probable

8 that the 5 million particles per cubic foot of air

9 will not be acceptable to prevent mesothelioma,

10 true?

11 A. He made a statement in the toxicology

12 report in 1969. I don’t know if it was that exact

13 statement, if I could see a copy of that toxicology

14 report.

15 Q. No, sir. I’m asking you in this very

16 letter answering the question of Mr. Sayers, your

17 assistant medical director wrote back and said the

18 TLV is probably no good to prevent cancer.

19 MR. JORDAN: Objection to the form.

20 Q. Isn’t that what he said?

21 MR. JORDAN: The witness says said he

22 is having a hard time reading it.

23 MR. PLACITELLA: Let’s get a clean

24 copy and take a break.

25 MR. JORDAN: That’s what I was trying

170

1 to do.

2 MR. PLACITELLA: This is an important

3 question.

4 MR. JORDAN: Objection to the side

5 bar.

6 (Recess taken)

8 Q. We have taken the opportunity to get a

9 clean copy of this response from Dr. Dernehl’s

10 assistant medical director to the question posed by

11 your counterpart in the U.K., Mr. Sayers, correct?

12 MR. JORDAN: Objection to the form.

13 A. Yes. He wrote to it Mr. Sayers’ immediate

14 boss.

15 Q. Okay. And this letter answers the

16 question raised by Mr. Sayers about whether the TLV

17 threshold limit value will prevent people from

18 getting sick, right?

19 A. I don’t see where he say sick in here.

20 Q. Well, is cancer and sick the same thing?

21 MR. JORDAN: Objection to the form.

22 A. I think you can have cancer — whatever.

23 Q. You can have cancer and not be sick, sir?

24 A. No.

25 Q. Mesothelioma, that’s a form of cancer,

171

1 right?

2 A. It is a form of lung cancer, I believe.

3 Q. Now, in the second paragraph, second page

4 the assistant medical director for Union Carbide –

5 by the way, he wasn’t just for the your division,

6 right, Dr. Dernehl?

7 A. Yes. He was an associate medical

8 director?

9 Q. The entire company?

10 A. For the corporation, yes.

11 Q. For all 60,000 employees?

12 A. For the corporation, as far as I know.

13 Q. He was not somebody to be taken lightly,

14 true?

15 A. No, I didn’t take him lightly.

16 Q. What he says, and I put part of it up on

17 the screen.

18 MR. JORDAN: Where are your at?

19 Second paragraph, the question was raised –

20 MR. PLACITELLA: That’s correct.

22 A. But not acceptable for the prevention of

23 mesothelioma.

24 Q. Yes, sir. So what the medical director

25 says is — or maybe you can use the TLV to prevent

172

1 asbestosis, but it ain’t going to protect against

2 cancer, right?

3 A. He is saying mesothelioma, which is a type

4 of cancer. I don’t know if he is including all

5 cancers. He is specifically referencing

6 mesothelioma in this case.

7 Q. So what he is saying is you might be able

8 to rely upon the TLV for asbestosis, but you can’t

9 rely upon the TLV to prevent mesothelioma, right?

10 A. Essentially, yes, that’s correct.

11 Q. And, in fact, he says “I have no idea what

12 concentration might be effective in preventing this

13 disease and I would wonder whether even a limit of 1

14 million particles per cubic foot would be effective

15 in this regard.” Correct?

16 A. That’s what he is saying, yes.

17 Q. Now, the date of this letter is June 7,

18 1967?

19 A. Correct.

20 Q. Correct?

21 A. Yes.

22 Q. P-11, in front of you, I put it back up on

23 the screen. Do you see that?

24 A. Yes, I do.

25 Q. What is the date of that brochure that you

173

1 were handing to all the customers about joint

2 compound?

3 A. The date of this brochure is October 19,

4 1968. It was shown once or twice to a customer.

5 Q. Remember before when I asked about the

6 whole truth and nothing but the truth?

7 MR. JORDAN: Objection to the form of

8 the question.

9 Q. Do you remember that, sir?

10 A. I remember that statement you made, yes.

11 Q. And, sir, the truth is that Dr. Dernehl

12 more than a year before this brochure was authored,

13 told Union Carbide and the salespeople at Union

14 Carbide that the threshold limit value would not

15 protect against mesothelioma, right?

16 A. That’s what Dr. Dernehl is saying. At

17 this 1968 period we were handing out our toxicology

18 brochure, which did make reference to cancerous

19 tumors, especially those in the lungs, in the 1964.

20 Q. Sir, if you look at Mr. Sayers letter he

21 refers to the toxicology report and he quotes the

22 toxicology report and it says, “It is now generally

23 excepted that a man can work a 40 hour week for a

24 lifetime without developing asbestosis. If the

25 asbestos dust particles is kept at or below 5

174

1 million particles per cubic foot of air, and he goes

2 on to say it is no longer held to be true by a

3 number of informed people and he wants to know if it

4 is true and Dr. Dernehl wrote back and said it’s not

5 true with respect to mesothelioma, right?

6 A. Well, we are talking about –

7 MR. JORDAN: Objection to the form of

8 the question. Mischaracterizes all of his answers.

9 Goo ahead and answer as best you can.

10 A. We’re talking about asbestosis which is

11 not a form of cancer.

12 Q. I understand that.

13 A. As opposed to mesothelioma, which is.

14 Q. Right.

15 A. What Dr. Dernehl was it was generally

16 accepted that the level for asbestosis was safe.

17 Q. Well, sir, we know –

18 A. He wasn’t sure what a safe level was for

19 mesothelioma. There was a controversy on

20 mesothelioma, which there was at that time.

21 Q. Well, sir, remember when I showed you the

22 1947 report when Union Carbide was made aware that

23 it wasn’t even certain that the TLV could protect

24 against asbestosis. Do you remember that?

25 A. I don’t remember that, no.

175

1 Q. We will let the record speak for itself.

2 A. Okay.

3 Q. In this report that you handed customers

4 on toxicology, related to Calidria, the one in front

5 of you, sir, the one I have up on the screen.

6 A. Yes.

7 Q. Please show me here and now where you

8 mention mesothelioma?

9 A. It is not in there.

10 Q. Please show me here and now where you tell

11 the user that the threshold limit value will not

12 prevent somebody from getting mesothelioma?

13 A. The discussion when this brochure was

14 handed out, a copy of our toxicology report, 1964,

15 was given out along with this brochure as a general

16 rule.

17 In a few months past this period in 1969

18 Dr. Dernehl with further evidence produced an

19 updated report because the level by the ACGH and

20 Walsh Healy was being reduced from 5 to 2, I

21 believe, and we were updating our ’64 report.

22 We still talked about cancer and

23 mesothelioma to my knowledge was a form of cancer in

24 our tox report in 1964.

25 Q. Sir, when we take a break since we are at

176

1 the place where all the documents are, I’m going to

2 ask you to go find the document for me that shows

3 that you were warning people about cancer starting

4 in 1964 in your toxicology report. Would you do

5 that, sir?

6 A. There wouldn’t be a document.

7 Q. Exactly.

8 MR. JORDAN: Objection to that side

9 bar comment asking the question.

10 Q. Sir, you have an index right downstairs in

11 this building of all the documents, right?

12 A. Yes.

13 Q. So if there was a document in 1964 warning

14 that the TLV would not protect against mesothelioma,

15 you would know where to find it, right?

16 MR. JORDAN: That’s a separate

17 question. You asked previously about whether or not

18 there was a ’64 report concerning warning of cancer

19 and have you shown him the ’64 tox report?

20 MR. PLACITELLA: I don’t know what he

21 is talking about. Maybe you have it. Why don’t you

22 get it?

23 Somebody else get it because I have a

24 lot of questions to ask.

25 MR. JORDAN: Okay.

177

1 Q. Sir, nowhere in this report that was

2 designed specifically for joint compound do you

3 mention that the threshold limit value does not

4 protect against mesothelioma, true?

5 A. Again, I refer to the fact that first of

6 all no, it doesn’t appear in this report. At this

7 particular time we were handing out our toxicology

8 1964 report in conjunction with this brochure.

9 MR. PLACITELLA: Could you read my

10 question back again? Please answer my question, not

11 the one you want to answer.

12 A. I’ve answered your question.

13 Q. You didn’t. Please answer my questions.

14 MR. JORDAN: Your question relates to

15 mesothelioma –

16 MR. PLACITELLA: My question is what

17 it is. Read it back.

18 MR. JORDAN: You previously asked

19 about –

20 (The following question is read)

22 Sir, nowhere in this report that was

23 designed specifically for joint compound do you

24 mention that the threshold limit value does not

25 protect against mesothelioma, true

178

3 A. In this report –

4 MR. JORDAN: He asked you –

5 A. The SG210 brochure, no, I don’t see

6 mesothelioma in that brochure.

7 Q. And the report does reference cancer,

8 right?

9 A. I believe so.

10 Q. What it says there is that if you keep –

11 A. Cancerous tumors.

12 Q. Cancerous tumor would mesothelioma,

13 wouldn’t it?

14 A. Especially of the lung associated with

15 asbestosis, yes.

16 Q. So what you say there is that the

17 threshold limit value protects against cancer.

18 That’s what it says, doesn’t it?

19 MR. JORDAN: Objection to the form of

20 the question.

21 A. Could you point that out to me where it

22 says that?

23 Q. Yes, sir.

24 A. I don’t see it.

25 Q. It says on page 4, “Several years ago it

179

1 was reported there was an increase in the incidence

2 of cancerous tumors, especially of the lung

3 associated with asbestosis. Recently there have

4 been some, there have been reports some of cancers

5 occurring in individuals exposed to asbestos dust
but
6 who have not developed clinical asbestosis. It is

7 believed by most authorities that these cases have

8 been associated with exposures significantly

9 exceeding the threshold limit value. A major

10 manufacturer of asbestos product who also mines

11 asbestos has not been able to show an increase in

12 cancer growths in men working or concentrations were

13 maintained at the threshold limit value.

14 Did I read that correctly?

15 A. Yes, you did.

16 Q. When you were talking about cancer and

17 asbestos in this in this brochure nowhere does it

18 say that the threshold limit value will not protect

19 against cancer, right?

20 A. The threshold limit value will not protect

21 against cancer. It does not make that statement,

22 no.

23 Q. In fact, what it leads the reader to

24 believe is that if you keep your exposure below the

25 threshold limit value that you won’t get cancer?

180

1 MR. JORDAN: Objection to do form.

2 Q. Right?

3 A. I don’t see where it says that.

4 Q. Isn’t that the import of what it says,

5 sir?

6 A. Not to me.

7 Q. It says nobody ever got cancer who had

8 exposures below threshold limit value.

9 MR. JORDAN: Objection to the form.

10 Q. Isn’t that what you meant to convey here?

11 A. I think we were talking generally that it

12 didn’t happen. In the past it was associated with

13 asbestosis. Cancer of the lungs, you had to have

14 asbestosis first and then you got it. However,

15 there was new evidence coming out that you could get

16 it without preceding it with asbestosis.

17 Q. And nobody got cancer if the exposures

18 didn’t significantly exceed the threshold limit

19 value. That’s what it said.

20 MR. JORDAN: I object to the form of

21 the question. That is not what it says.

22 Q. It is believed by most authorities that

23 these cases have been associated with exposure

24 significantly exceeding the threshold limit value.

25 That’s what it says, right?

181

1 A. That’s what it says.

2 Q. It doesn’t stay Dr. Dernehl said that it

3 won’t protect against cancer, does it?

4 A. No. It doesn’t say that.

5 Q. Yes, sir. And it doesn’t say that Dr.

6 Dernehl’s opinion was he doesn’t even know if one

7 million fibers will protect against cancer, does it?

8 A. It did not say that.

9 Q. Yet this was authored by Union Carbide to

10 give to its customers more than a year after Dr.

11 Dernehl answered the question of the sales staff

12 that said the threshold limit value doesn’t protect

13 against mesothelioma true?

14 MR. JORDAN: I object to the form of

15 the question. It is a complete mischaracterization.

16 MR. PLACITELLA: We will let the jury

17 decide.

18 Q. True?

19 A. That’s such a long question I don’t know

20 even what you were talking about.

21 Q. Dr. Dernehl told Mr. Sayers that the

22 threshold limit value does not protect against

23 cancer more than a year before this report was ever

24 constructed by Union Carbide, right? Look at the

25 dates of the letter, sir.

182

1 A. I don’t think he was that definitive.

2 Q. You don’t think it is definitive?

3 A. He said I have no idea what concentration

4 might be effective in preventing this disease.

5 Q. Yes. And he says before that, sir –

6 MR. JORDAN: Let him finish his

7 answer, please.

8 A. And he wondered even a limit of

9 one million particles. I think Dr. Dernehl was

10 saying he wasn’t sure. He didn’t know what the

11 level was.

12 Q. Yes, sir, but he says it is probable.

13 That means more likely than not, right? It is

14 probable — –

15 A. Where does it say probable?

16 Q. Right above there. I have it right up

17 here blown up for everybody to see. It is probable

18 that the 5 million particles per cubic foot will not

19 be acceptable for the prevention of mesothelioma.

20 Did I read that correctly?

21 A. Where is that? It is probable that 5

22 million particles per cubic feet will not be

23 acceptable for the prevention — that’s what he

24 said, yes.

25 Q. And it is the same Dr. Dernehl who a year

183

1 later authored the SG210 brochure that you handed

2 out to the customers telling people that the TLV

3 will prevent against cancer, right?

4 MR. JORDAN: Objection to the form.

5 A. I don’t know who put this in. I assume it

6 was Dr. Dernehl. Again, it was handed out in

7 conjunction with the ’64 toxicology report. As more

8 information came in, we had an updated toxicology

9 report shortly after this brochure was put out.

10 Q. When you went around to customers, sir,

11 did you ever tell them that Union Carbide was of the

12 opinion that the threshold limit value will not

13 prevent people from getting mesothelioma?

14 MR. JORDAN: Him personally?

15 MR. PLACITELLA: Yes.

16 A. Me personally?

17 Q. Yes.

18 A. I told customers that we felt based on

19 monitoring data we had, our Calidria could be used

20 safely in joint comments. That what told them.

21 Q. What is “could be used safely?” What does

22 that mean?

23 A. Well, it was below the guidelines issued

24 by the government.

25 Q. The threshold limit value?

184

1 A. Yes.

2 Q. You told the customers that exposure below

3 the threshold limit value used could be used safely?

4 A. That our determination by air monitoring

5 indicated that the numbers were well within the

6 guidelines of the regulation.

7 Q. Below the threshold limit value?

8 MR. JORDAN: Objection. As you well

9 know after OSHA in 1972 the correct terminology is

10 permitted exposure levels.

11 MR. PLACITELLA: I well know and get

12 to that in a bit. I’m trying to understand what

13 this person was telling people.

14 Q. Is it your testimony here today that you

15 told Georgia-Pacific that you could not rely upon

16 the threshold limit value to prevent mesothelioma?

17 A. I did not make that statement to Georgia

18 Pacific.

19 Q. Did you do it to U.S. Gypsum?

20 A. No.

21 MR. JORDAN: Him individually?

22 MR. PLACITELLA: Yes.

23 Q. Did you do it to National Gypsum?

24 A. No.

25 Q. Are you aware of any salesperson –

185

1 there’s only like ten of you, right?

2 A. Salespeople, probably no more than five.

3 Q. By the way, did you ever have any

4 discussions with Mr. Sayers, your counterpart over

5 there?

6 A. No, I never met the man.

7 Q. To your knowledge did any of your fellow

8 salespeople ever tell the customer that the

9 threshold limit value used would not protect

10 against mesothelioma?

11 MR. JORDAN: You are asking oral

12 conversations as opposed to documents handed out?

13 MR. PLACITELLA: Yes.

14 MR. JORDAN: Oral conversations?

15 MR. PLACITELLA: Yes.

16 MR. JORDAN: Okay.

17 A. That it would not prevent?

18 Q. Yes.

19 A. I don’t recall any conversations, but,

20 again, I don’t know what other salesmen –

21 Q. Did you hand any of your customers any

22 information to indicate that exposures below the

23 threshold limit value were going to cause

24 mesothelioma?

25 MR. JORDAN: Do you have a copy of

186

1 the ’69 tox report?

2 MR. PLACITELLA: I’m asking him

3 questions.

4 A. Well, in 1969 we had the updated

5 toxicology report that Dr. Dernehl issued as a

6 result of new information, Walsh Healy Act and more

7 studies done on mesothelioma. So we updated the ’64

8 report which was passed out to customers.

9 Q. Can you read to me in the 1969 report

10 where it indicates that if you are exposed below the

11 threshold limit value you are going to get

12 mesothelioma?

13 MR. PLACITELLA: Counsel, it would be

14 really helpful if he kind of looked at the stuff

15 without your pointing it out.

16 MR. JORDAN: You want him to read the

17 whole thing?

18 A. Let’s have the question again.

19 Q. Why don’t you give it to me. I’ll cut

20 things short.

21 MR. JORDAN: Bottom paragraph,

22 page 1.

23 Q. Did you hand this report to Georgia

24 Pacific?

25 MR. PLACITELLA: Why don’t you mark it?

187

1 (The document is marked as

2 P-18 for Identification.)

3 A. I believe this report is, as a general

4 rule, at this time was given out to tape joint

5 customers, yes, an updated toxicology report.

6 Q. This report finally indicates that the

7 threshold limit value may not protect against

8 mesothelioma, correct?

9 A. Yes, I believe it says that.

10 Q. And that would include people who were

11 using the product out in the field, right, the joint

12 compound product?

13 A. I’m not sure of your question.

14 Q. People who were using the product out in

15 the field, sanding it down?

16 A. Sanding, contractors, okay.

17 Q. Would you have also told them that if they

18 were generating levels above the threshold limit

19 value out in the field, that that wasn’t going to

20 protect against mesothelioma?

21 A. Well, I think I have to go back again,

22 Chris, and say we sold to a manufacturer.

23 Manufacturers made a product. Our material was a

24 minority percentage in that product. We assumed the

25 manufacturer knew about asbestos as he had been

188

1 using it for years and we didn’t know who his

2 customers were. We were not privy to that

3 information. They didn’t hand us a list of who the

4 customers were.

5 Q. Well, you knew the following. You knew

6 carpenters would use the product, right?

7 A. I didn’t know carpenters used it. Why

8 would a carpenter use it?

9 Q. Do you know if tapers used the product?

10 A. I would suspect tapers.

11 Q. Do you know consumers would use the

12 products in their homes?

13 A. Very small amount. I think one time I

14 asked Georgia-Pacific about that and they said it

15 was somewhere less than 10 percent, maybe 5 to 2.

16 Q. So you knew the people used it in their

17 homes?

18 A. Could be, yes,.

19 Q. And these were not people educated on

20 medical issues related to the dangers of products,

21 correct?

22 A. Some could be, some couldn’t.

23 Q. Do you have any evidence that any of my

24 clients had the same level of knowledge that Union

25 Carbide did about the dangers of asbestos?

189

1 A. I don’t know your clients. I don’t know

2 what their level of education is.

3 Q. Do you have any evidence in your

4 possession to indicate that you required any of your

5 customers to warn the ultimate user that exposures

6 below the threshold limit value would cause

7 mesothelioma?

8 MR. JORDAN: Objection to the form.

9 A. I could not, again, require my customer to

10 do something.

11 Q. You could not, sir, but your bosses and

12 Union Carbide executives could have.

13 MR. JORDAN: Objection to the form.

14 Q. They could have made it a condition for

15 selling the product to Georgia-Pacific and others

16 that a warning be placed on the product or

17 information distributed with the product indicating

18 that exposures below the threshold limit value would

19 cause mesothelioma. They could have done that,

20 true?

21 MR. JORDAN: Objection to the form of

22 the question.

23 A. Could have, yes.

24 Q. And the choice was made by someone above

25 you not to do it, right?

190

1 A. I believe that decision was made, yes.

2 Q. Now, Georgia-Pacific — excuse me, Union

3 Carbide, during the time it was selling its Calidria

4 fiber was aware that even slight dosages were

5 capable of causing mesothelioma, true?

6 A. What time period are you talking about?

7 Q. From 1967 forward.

8 A. I think it became general knowledge

9 somewhere in the early ’70s, 1971 period. I think

10 it was suspected prior to that time.

11 Q. And it was also known that people who were

12 exposed as bystanders in the home could get

13 mesothelioma just from people bringing asbestos

14 containing products home on their clothing?

15 MR. JORDAN: Objection to the form.

16 Q. True?

17 A. I don’t know when that information — I

18 first saw it in the preamble to the regulation in

19 ’72.

20 Q. In 1972 the regulation changed, correct?

21 Let me strike that for a second.

22 It was known during the time you were

23 selling asbestos that no one really knew what the

24 safe level of asbestos exposure was for preventing

25 mesothelioma, true?

191

1 MR. JORDAN: Objection to the form.

2 A. I think there was a lot of controversy

3 about it, yes. I don’t know if anybody had a

4 difinitive answer.

5 Q. No one really knew how little you could

6 breathe in before you would get sick and die from

7 mesothelioma.

8 MR. JORDAN: Objection.

9 Q. Right?

10 A. The issue seemed to be, it occurred 30, 40

11 years down the road and there was no guideline for

12 mesothelioma. It was a lot of controversy about

13 what was a safe level.

14 Q. What is a material safety data sheet?

15 A. That kind of came into play in 1972. I

16 don’t know if it was part of the OSHA regulation or

17 whatever. It was developed on products, on almost

18 every product that was produced. You had to prepare

19 a material safety data sheet.

20 Q. You had one for Calidria fiber, right?

21 A. Two.

22 Q. And the purpose was what?

23 A. Information. What it was. We said it was

24 asbestos. Did it contain any hazardous ingredients?

25 We responded to that. Handling procedures. It also

192

1 mentioned the OSHA regulation and the levels and it

2 also talked about monitoring and medical exams and

3 respirators?

4 Q. Wasn’t one of the purposes so if an employee

5 wanted to go into the office and see whether the

6 product that he or she was working with was dangerous,

7 they could do that? Wasn’t that one of the purposes?

8 A. Could have been.

9 Q. Tell me why in 1972, you, Union Carbide

10 told your customers and their employees in light of

11 everything you knew, that if you kept exposure below

12 a certain level you wouldn’t need any protection

13 whatsoever? Why did you do that?

14 MR. JORDAN: Objection to the form of

15 the question.

16 A. I don’t recall ever telling them that.

17 MR. PLACITELLA: Mark this P-19.

18 (The document is marked as

19 P-19 for Identification.)

20 Q. Do you recognize this?

21 A. Yes, I’ve seen this.

22 Q. Now, you are aware that out on the

23 construction sites when the job is done and there’s

24 debris and dust on the floor that it has to be swept

25 up and carried away? You were aware of that?

193

1 A. Yes.

2 Q. And that when the joint compound was used

3 out on construction sites the stuff that went into

4 the air would eventually settle to the floor, right?

5 A. Possibly, yes.

6 Q. And that the common practice on a

7 construction site was to, during the time you were

8 selling this compound, to sweep it up?

9 MR. JORDAN: Objection to the form of

10 the question.

11 A. How was the dust taken care of? Is that

12 what your question is?

13 Q. Yes.

14 A. Our recommendation was avoid inhaling of

15 dust. Remove spilled material by vacuum cleaner are

16 or by water cash. This the data sheet we gave to

17 our customers. I would assume they passed that on

18 to contractors.

19 Q. You have knew that if you could see the

20 dust in the air, that the safety standard was being

21 exceeded.

22 MR. JORDAN: Objection to the form.

23 Q. Right?

24 A. No. You couldn’t — If saw dust you

25 couldn’t tell what the level of dust was. You had

194

1 to do an actual air monitoring. You couldn’t guess.

2 You couldn’t seat fibers. There was invisible dust,

3 there was encapsulated fiber, there was limestone

4 dust.

5 Q. Five million particles per cubic foot,

6 sir, that was a higher standard than was eventually

7 changed until 1972, right?

8 A. When the original standard was issued it

9 stated in that standard in 1976 it would be further

10 reduced from to 5 to 2 on an eight hour average.

11 Q. You were aware if you could see the dust

12 that you were exceeding the threshold limit value,

13 right?

14 A. No, not at all. Just because you saw dust

15 did not indicate that you exceeded any level. You

16 had the air monitor.

17 Q. You couldn’t see the dust until it hit 8

18 to 10 million particles per cubic foot, right, sir?

19 A. I don’t know what the number was, but

20 looking at dust did not indicate whether you were

21 below or above the level. You had to do an air

22 monitoring to determine that.

23 Q. Sir, in the 1968 report that you handed

24 out, on page 4, could you read the section that

25 starts concentration of dust, sir.

195

1 A. Where are you now?

2 Q. Read that paragraph.

3 A. What photograph? That’s what I’m asking.

4 Q. First one.

5 A. First one? Several years ago — what

6 does it start with?

7 Q. Let me start it. I’m being confusing.

8 Where it starts this concentration of dust. Make

9 sure it is clean. Paragraph before, the dust

10 concentration of 5 million particles.

11 A. Okay.

12 Q. This is where you are telling people it is

13 safe, 5 million particles.

14 MR. JORDAN: Objection to the side

15 bar cement.

16 Q. Start reading there.

17 A. The dust concentration of 5 million

18 particles per cubic feet of air is the threshold

19 limit value for asbestos. No cases of asbestosis

20 are believed to have occurred when exposures have

21 been maintained at or below this level despite large

22 scale utilization now approaching 1 million tons per

23 year in the USA.

24 Q. Keep going. Next part is the part I’m

25 interested in.

196

1 A. This concentration of dust is generally

2 not visible in the average work area unless the beam

3 of light causing a dimple (ph.) effect is present.

4 Usually the dust concentration must be from 8 to 10

5 million particles per cubic foot before its presence

6 is visible in average lighting conditions.

7 Q. Yes, sir. Now, in your material safety

8 data sheet under waste disposal method, do you see

9 that?

10 A. Yes.

11 Q. It says if reasonably foreseeable
handling?
12 A. Okay.

13 Q. If reasonably foreseeable will not produce

14 airborne concentration in excess of exposure limits,

15 no special procedures are required. Do you see

16 that?

17 A. Yes.

18 Q. In other words, as long as you don’t raise

19 the dust levels above the exposure limit you don’t

20 have to protect yourself, right?

21 A. In the waste — removing of waste, if you

22 go to the step above that we tell steps to be taken

23 if it is released or spelled.

24 Q. Yes, sir.

25 A. And we say remove spilled material by

197

1 vacuum or by water wash.

2 Q. Yes, sir.

3 A. Meaning wet it down, which is what I told

4 customers if they had any spills or leakages. And

5 the only way you could determine what the

6 concentrations were was by doing an air monitoring.

7 Asbestos regulation is fibers per cc as

8 opposed to what is in this report of 5 million

9 particles. We are kind of comparing apples and

10 oranges.

11 Q. I’m not suggesting that they are. What

12 I’m saying you are indicating there’s no special

13 precautions necessary if the level is kept below the

14 then accepted value, correct?

15 A. We are saying if you do an airborne

16 monitoring and it shows you are not in excess of the

17 levels, that generally you can consider it okay.

18 Q. But nowhere on this material safety data

19 sheet that the employees were supposed to go look at

20 if they wanted to does it say that you have no idea

21 what level of asbestos exposure will stop them from

22 getting mesothelioma?

23 MR. JORDAN: Objection.

24 Q. True?

25 A. No, it doesn’t say that, no.

198

1 Q. I know it doesn’t say that, sir. Let’s

2 take a break.

3 (A short recess)

5 Q. Let’s go back to the Sayers report and

6 look at page 4. Mr. Sayers in asking his questions

7 to Union Carbide starts in his introduction and says

8 in part, so far over 20 potential customers have

9 raised the issue and have requested an assurance

10 that Carbide material will not be the source of

11 danger to their employees.

12 Did I read that correctly?

13 A. You read that correctly.

14 Q. Was that your experience as well in the

15 United States?

16 A. Not typically. My experience when I

17 started in ’72 was the need to know the regulation

18 and what they were required to do.

19 Q. It says under historical summary.

20 A. Where is this?

21 Q. Down below, do you see two-point zero it

22 is possible that public interest.

23 A. Okay.

24 Q. Was initiated in Great Britain by an

25 article in the Sunday Times, 31st of October ’65,

199

1 which summarized the work of Newhouse and Thompson

2 at the London Hospital. Do you see that?

3 A. Yes. You read it correctly.

4 Q. These two workers had conduct an

5 epidemiological survey of 83 patients admitted to

6 the hospital over 50 years. Each patient –

7 A. Admitted to the hospital over 50 years?

8 Q. Over approximately years.

9 A. Okay, so it is a 50 year study?

10 Q. Each patient, (41 male and 41 female) had

11 positively diagnosed defused pleural or defused

12 peritoneal mesothelioma. Do you see that?

13 A. Yes, I do.

14 Q. So as as of –It goes on the next

15 paragraph. It was also in this article that the

16 description was given of a docker’s wife who died of

17 mesothelioma and whose only contact with asbestos

18 had resulted from washing her husband’s overalls.

19 Did I read that correctly?

20 A. Yes, you did.

21 Q. So at least by 1967 Union Carbide was

22 documenting cases in internal correspondence about

23 family members getting mesothelioma who were never

24 occupationally exposed.

25 MR. JORDAN: Objection to the form.

200

1 Q. True?

2 A. I don’t know if Union Carbide was

3 documenting. We were seeing here a study was done

4 by two people at the London Hospital.

5 Q. I think we are –I’m not connecting with

6 you. This document is date 1967, right?

7 A. Yes I believe so.

8 Q. And it was written by a Union Carbide

9 employee?

10 A. Yes.

11 Q. And he is discussing with ultimately the

12 medical director the knowledge he gained that people

13 non occupationally exposed to asbestos were getting

14 mesothelioma in 1967.

15 A. As a result of this study that was done by

16 these two doctors, yes.

17 Q. Then if you go to the next page, on page 5

18 he is actually doing a tabulation based on his

19 research of a number of people who got mesothelioma

20 from 1960 to 1964 in Great Britain, right?

21 MR. JORDAN: No.

22 A. I believe he is talking about the number

23 of diagnosed –

24 Q. Excuse me. You are right. Withdraw the

25 question. You are right.

201

1 It says to date about 500 cases of cancer

2 of the lung and mesothelioma are known to have

3 occurred among people exposed to asbestos dust in

4 the United Kingdom, correct?

5 A. You read it directly?

6 Q. So as of the time this report was issued

7 in 1967 Union Carbide was aware of at least 500

8 cases in the United Kingdom alone of people getting

9 asbestos-related cancer?

10 A. You could say that. I believe most of

11 these cases in these studies were done on employees

12 exposed to Chrysotile type asbestos.

13 Q. What is the basis for saying that, sir?

14 A. I just believe they were.

15 Q. Did you speak with Mr. Sayers to verify

16 that?

17 MR. JORDAN: Can he finish his answer

18 please?

19 A. No. It is my understanding from what I

20 have read that the cases that we are talking about

21 here, dock workers, were based on exposure to

22 chrysotile and amosite type asbestos.

23 Q. Sir, this paragraph related to 500 cases

24 doesn’t refer to dock workers. does it?

25 A. No, it doesn’t. What did 4 say?

202

1 Q. Page 4 talked about a dock worker’s wife

2 getting mesothelioma.

3 A. I would assume if he was married and she

4 got mesothelioma, she got it from him and he was a

5 dock worker.

6 Q. In that one case. Now, go to page 8. You

7 talked about information accrued under section

8 four-point zero?

9 A. Yes.

10 Q. I put it up here for people in the room so

11 they could see it. It says diseases associated with

12 asbestos. Do you see that?

13 A. I’m reading it here. I can read this

14 clear.

15 Q. It says the diseases are asbestosis,

16 bronchial carcinoma, mesothelioma of the pleura and

17 peritoneum, right?

18 A. Right.

19 Q. Go to 4.41. Do you see where it says

20 occurrences of disease, page 11?

21 A. You mean the chart at the top?

22 Q. That’s interesting you say that. This

23 chart put together by a salesman at your level,

24 actually tracks the number of asbestosis death cases

25 beginning in 1924, doesn’t it?

203

1 A. Well, he was getting this from an article

2 he read. I don’t know what to say about that.

3 Q. In the open medical literature he

4 was able to determine that people were dying from

5 asbestosis as early as 1924, right?

6 A. My understanding in this time period was

7 that pneumoconiosis was the disease that people were

8 looking at as the cause.

9 Q. He also indicates, sir, does he not, in

10 the 1931 to 1940 period, history search showed that

11 there were 13 people documented with asbestosis and

12 lung cancer?

13 A. That is what his report shows, males.

14 Q. That was males?

15 A. Yes.

16 Q. Another five for females?

17 A. That’s what it says, yes.

18 Q. From 1981 to 1960 there were another 45

19 people he was able to document with asbestosis and

20 lung cancer?

21 A. Yes.

22 Q. That men and another 11 women?

23 A. That’s what it shows.

24 Q. And when he talks about occurrences of

25 this disease he says mesothelioma is the most

204

1 disturbing.

2 A. Where are you now?

3 Q. Right below it.

4 A. All right.

5 Q. Is the most disturbing of the three

6 diseases attributable to asbestos for two reasons.

7 Firstly, in contrast traveled to bronchial carcinoma

8 it can occur in people with minimal fibrosis, i.e.

9 only after a brief exposure which may be as little

10 as three months. Do you see that?

11 A. I see that.

12 Q. Some authorities even believe a single

13 brief exposure may be sufficient.

14 A. I see that.

15 Q. He goes on to say secondly there is a very

16 long time lag between the original exposure and the

17 clinical appearance of the cancer, correct?

18 A. Correct.

19 Q. Thirty years is estimated to be an average

20 time?

21 A. Correct.

22 Q. Correct?

23 A. Correct.

24 Q. He knew that if you didn’t start selling

25 asbestos until 1966, 1967, that as Union Carbide, it

205

1 wasn’t likely that people were going to start

2 getting mesothelioma until sometime in the 1990s, if

3 they were exposed to it, right?

4 A. That was typically the understanding, yes.

5 Q. And if you go under section 6 under page

6 15?

7 A. Okay.

8 Q. Do you see where it says moral issues?

9 A. Yes.

10 Q. The second paragraph says, it therefore

11 seems on the basis of present evidence we are not

12 entitled under any circumstances to state that our

13 material is not a health hazard. Do you see that?

14 A. I think that’s true.

15 Q. What is more, if it is believed that a

16 potential customer would use our material

17 dangerously, and that he is unaware of the toxicity

18 question, then it must surely be our duty to caution

19 him and to point out means whereby he can hold the

20 asbestos air flow concentration to a minimal. Is

21 that something you knew back then?

22 A. I believe we did this.

23 Q. It is something you were aware of?

24 A. What? Sayers’ report?

25 Q. No. This particular photograph. This

206

1 information.

2 A. Yes. I believe when I made sales calls

3 that we advised customers that keep the dust down to

4 a minimum.

5 Q. Now, Georgia-Pacific maintains you never

6 told them any of that. Who is right, you or them?

7 MR. JORDAN: Objection to the

8 argumentative –

9 Q. I took the deposition of the person a

10 couple of weeks ago who said that you never told

11 them about cancer.

12 MR. JORDAN: Objection to the

13 question. That’s a mischaracterization of the prior

14 testimony.

15 Q. Who is right?

16 A. I know as a matter of my making sales

17 calls and other correspondence that I provided

18 Georgia-Pacific in Marietta, Georgia and Acme, Texas

19 with information that showed that our product was

20 asbestos. I gave them the regulations. I gave them

21 Dr. Wright’s report, I gave them an MSDS sheet as a

22 routine.

23 Q. Okay.

24 MR. PLACITELLA: Can we have this one

25 marked.

207

1 (The document is marked as

2 P-20 for Identification.)

4 Q. I hand you what’s been marked as exhibit

5 20 which is a December 12, 1972 memorandum with

6 enclosures from a W.N. Johnson to Mr. Larrison and

7 Mr. Piersall. Do you know who they are on the front

8 page?

9 A. Larrison at this time I believe was the

10 plant manager at King City.

11 Q. Okay.

12 A. Ernie Piersall I think was an industrial

13 hygienist in New York with Union Carbide. I’m not

14 sure who Bill Johnson was.

15 Q. And it encloses another AIA related

16 document. Have you ever seen this set of documents

17 before?

18 A. Just from briefly glancing at it. I don’t

19 recall it, but I can read it in its entirety.

20 Q. I’m going to ask you just one very

21 specific question about it. If your attorney thinks

22 there’s anything I’m asking you unfair, I’ll ask

23 ask you other stuff.

24 MR. JORDAN: Objection to the side

25 bar.

208

1 Q. This encloses a letter from Matthew

2 Swetonic dated November 27, ’72. Do you see that?

3 A. I see that.

4 Q. That is the same Matthew Swetonic who made

5 the good news and bad news speech we went through

6 this morning.

7 MR. JORDAN: Objection to the form.

8 Q. Do you remember?

9 A. I saw it after lunch.

10 Q. What did Mr. Swetonic says on page two of

11 his letter is that in response to a direct question

12 from me Dr. Berneking — do you know who Dr.

13 Berneking is?

14 A. No.

15 Q. Stated that the FDA considers any exposure

16 to asbestos to be hazardous, no matter what the

17 level.

18 A. I’m not sure.

19 Q. Number 4?

20 A. You are number 4?

21 Q. Yes.

22 A. This is Swetonic talking to Dr. Berneking.

23 MR. JORDAN: Just read that. Make

24 sure he reads that correct.

25 Q. The FDA feels that any exposure to

209

1 asbestos will be hazardous to matter what the level.

2 Okay. Am I correct?

3 A. That’s what it says.

4 Q. And this was circulated to the industrial

5 hygienist for Union Carbide and to people at mine

6 where the fiber, Calidria fiber was extracted, true?

7 A. That went to Larrison and Piersall, I don’t

8 believe it was at the King City facility.

9 Q. Did you ever convey to any of your

10 customers that the FDA believed that there was no

11 level of exposure that could be safe?

12 A. I was not aware that was the FDA’s

13 posture.

14 Q. Obviously then you could not relate it to

15 anybody?

16 A. Correct.

17 Q. Were you ever made aware of studies done

18 by Dr. Wagner related to Union Carbide’s asbestos?

19 A. I had some faint recollection of it. I

20 don’t recall the particulars.

21 Q. Were you aware he did animal tests to

22 determine the ability of your fiber versus other

23 fibers to cause mesothelioma in animals?

24 A. No, I was not aware.

25 Q. That was never disclosed to you?

210

1 A. I don’t recall it.

2 Q. I would ask you to look up at the chart

3 that I put on the screen.

4 MR. JORDAN: Where is this coming

5 from? I think the Wagner study –

6 MR. PLACITELLA: I’m just going to

7 ask him a question about it. He is probably going

8 to say he doesn’t know.

9 Q. Were you ever made aware of the relative

10 findings of the Wagner study from Union Carbide

11 versus other fibers?

12 MR. JORDAN: Objection to this.

13 First off, I’m not sure if you accurately reflected

14 the Wagner study. I’m not sure if it is really is

15 UCC because there’s some time confusion with the UCC

16 sample which is not a Union Carbide product in the

17 Wagner study. It’s also not being put forth what

18 Dr. Wagner has stated in published literature that

19 Chrysotile doesn’t cause mesothelioma.

20 MR. PLACITELLA: Are you done

21 testifying?

22 MR. JORDAN: I’m objecting to the

23 uses of the chart that is without the document,

24 underlying document. It is impossible for this

25 witness to verify the information.

211

1 MR. PLACITELLA: All I’m asking is if

2 he was aware about this. I think I know what his

3 answer is going to be.

4 MR. JORDAN: His answer is going to

5 be he doesn’t know because you haven’t shown him the

6 document.

7 MR. PLACITELLA: Why don’t we figure

8 out what he has to say before you answer it for him?

9 Q. Do you know anything about this study?

10 A. I don’t recall the study.

11 Q. Thank you.

12 MR. PLACITELLA: Can we mark this next.

13 (The document is marked as

14 P-21 for Identification.)

15 MR. JORDAN: I’m not sure whether it

16 is privileged or not. We have a continuing

17 objection.

18 MR. PLACITELLA: Yes. I would be

19 hard pressed to think it was privileged since it was

20 marked at about three or four depositions before we

21 got here.

22 MR. JORDAN: Oh, you would be

23 surprised.

24 MR. PLACITELLA: Learning something

25 new every day.

212

1 Q. This is a September 29, 1975 document and

2 it was from your boss, right?

3 A. Correct.

4 Q. Have you ever seen this document before?

5 A. I believe I have.

6 Q. And this was written by your boss to his

7 bosses, correct?

8 A. Yes. He was reporting on a conference he

9 attended.

10 Q. He went over to England. Do you know if

11 he had any discussions with Mr. Sayers while he was

12 over there?

13 A. No idea.

14 Q. He went over to England and he came back

15 and reported on what happened, right?

16 A. That seems to be the gist of it.

17 MR. JORDAN: Why don’t you read the

18 document.

19 A. Let me read it. Okay.

20 Q. Prior to today had you ever seen this

21 document before?

22 A. I have seen it before, yes.

23 Q. And this is a document that was written by

24 your boss just to refresh, correct?

25 A. Yes. correct.

213

1 Q. And what he says reporting back on the

2 third paragraph is, “In general the conference only

3 produce one bombshell in the asbestos area. A paper

4 by Dr. Wasserman of Israel. It was an in a

5 different session on geography and occupational

6 health. He took a detailed look at about 40

7 mesothelioma deaths that have been recorded in

8 Israel. There were several among small children.

9 They were equally distributed between men and women.

10 A substantial portion had no significant traceable

11 occupational exposure and the highest rates were not

12 in the two regions of Israel where the plants which

13 handle asbestos are located. He drew the conclusion

14 that the cause was non occupational exposure to

15 asbestos.”

16 Was this bombshell ever related to you by

17 your boss?

18 A. At the time, no.

19 Q. It says overall –

20 MR. JORDAN: Where are we?

21 MR. PLACITELLA: Right underneath.

22 MR. JORDAN: You skipped the next

23 paragraph where it says the London Times reported on

24 this.

25 MR. PLACITELLA: Right. I’m not going

214

1 to read the whole thing. In you want me to read it,

2 I’ll read it.

3 Q. It says, “Overall the mesothelioma

4 situation for occupational exposures continues to

5 look discouraging. The MacDonalds opened the

6 session with a survey of the available information

7 of the incidents of this disease in various parts of

8 the world. They found the incidents extremely high

9 in three situations. One, among insulators, two,

10 among those who worked or lived in cities with

11 shipyards. Three, among those who work or live in

12 certain cities with large asbestos plants.”

13 Was the information related to the high

14 incidence of mesothelioma in people in cities near

15 shipyards and plants related to you by Mr. Rhodes?

16 A. I don’t believe so because we weren’t

17 selling into any of those markets. On second

18 thought, the previous question you asked, and I’m

19 not the sure if it was Mr. Rhodes or maybe John

20 Myers or someone. I do recall someone talking about

21 mesothelioma and how conflicting the evidence was

22 and they mentioned a report done by someone where

23 there was really no exposure at all, but they had

24 contracted mesothelioma.

25 Q. Were you told of a bombshell where 40

215

1 people had mesothelioma without occupational

2 exposure?

3 A. I don’t know if those exact words were

4 used.

5 MR. JORDAN: Objection to the form.

6 A. I am familiar. I don’t know if those

7 exact words were used. I am familiar with being

8 told that there was an instance where there was no

9 exposure to asbestos at all and yet people did have

10 mesothelioma.

11 Q. When he spoke to his boss and called it a

12 bombshell, right?

13 A. I’m not sure who called it a bombshell.

14 Q. Your boss told his boss it was a

15 bombshell.

16 A. Yes. He said it was a bombshell. I don’t

17 know.

18 Q. But he didn’t tell you it was a bombshell?

19 A. I don’t know if he told me about this.

20 Like I said, I do recall hearing about a study done

21 where there was no exposure and yet mesothelioma was

22 developed.

23 Q. What he says is he drew the conclusion

24 that it was non occupational, not that there was no

25 exposure, right?

216

1 A. He said non occupational.

2 Q. Did you ever tell your customers that you

3 were aware of people getting mesothelioma who simply

4 lived in the cities where shipyards were located?

5 A. No. I couldn’t really think of a good

6 reason I told them that.

7 Q. And he says in the second to the last

8 paragraph, “In summary, I get the overall impression

9 that there’s a great deal of concern that the

10 mesothelioma, and even the asbestosis picture, will

11 get worse before it gets better, ” meaning more

12 people are going to die, right?

13 A. I don’t know if that’s what he means by

14 that. That was his opinion, I guess, based on the

15 whole conference, the general feel.

16 Q. “There’s a growing feeling short intense

17 exposure which overwhelm the lung clearing

18 mechanisms may be enough to cause serious harm.”

19 Did he relate that to you?

20 A. I don’t know if Dr. Rhodes related that to

21 me, but I think there was — that was another one of

22 the debated issues.

23 Q. Did you tell your customers that there was

24 a growing feeling that short intense exposures would

25 overwhelm the lung clearing mechanism and be enough

217

1 to cause serious harm?

2 A. No.

3 MR. JORDAN: Objection to the form.

4 MR. PLACITELLA: Mark this.

5 (The document is marked as

6 P-22 for Identification.)

8 Q. This is marked P-22 for Identification.

9 It is a March 10, 1972 from vice-president of Union

10 Carbide Corporation, 270 Park Avenue, James Rawlings.

11 Have you ever seen this document before?

12 A. No. I know James Rawlings. I know

13 Reichhold Chemical and Dick Sulic.

14 Q. How did you know Dick Sulic?

15 A. He used to be at the Jacksonville

16 Reichhold operation and he got transferred.

17 Q. And this would have been after the new

18 asbestos regulations went into place?

19 MR. JORDAN: Objection to the form.

20 A. The regulations went into place July 1,

21 ’72. So this would have been slightly before.

22 Q. But they were published January 12, 1972,

23 right?

24 A. I don’t believe they were effective until

25 July 1.

218

1 Q. This talks about the sale of RG 244 in

2 part, correct?

3 A. Yes. RG 244 was a product that was used

4 almost exclusively in epoxy and polyester resin. It

5 was not a joint cement.

6 Q. What was the difference between 244 and

7 the product you used in joint compound? What was

8 the difference between it in terms of toxicology?

9 A. Well, as far as differences between joint

10 cement product and RG 244, RG 244 was a silica

11 coated chrysotile asbestos fiber.

12 Q. So that was safer?

13 A. No.

14 Q. It wasn’t?

15 A. It was still chrysotile asbestos.

16 Q. This is after the 1969 toxicology report

17 you showed me before, right?

18 A. Yes.

19 Q. In the second paragraph it says, “With

20 regard to the toxicity of asbestos, it is important

21 to note that asbestosis and statistical excess

22 occurrences of bronchogenic carcinoma have occurred

23 only in connection with massive long term esposure

24 to asbestos dust. Did I read that correctly?

25 A. Yes, you read it correctly.

219

1 Q. Can you look through this document and

2 tell me where it is telling the consumer that short

3 term exposure can cause mesothelioma?

4 MR. JORDAN: Objection to the form of

5 the question as being — it is unfair because the

6 sentence that you just read relates to bronchogenic

7 carcinoma, which, as you well know is lung cancer,

8 not mesothelioma.

9 MR. PLACITELLA: That’s exactly the

10 point.

11 Q. Why is mesothelioma missing from this?

12 Was that on purpose, because you said nothing was by

13 accident, isn’t that what you told me?

14 As you are looking, I’ll withdraw the last

15 question.

16 As you are looking through the document,

17 please read through it and determine in your mind

18 whether this document tells the whole truth and

19 nothing but the truth?

20 MR. JORDAN: Objection to the form.

21 Q. About the toxicity of Union Carbide’s

22 asbestos?

23 MR. JORDAN: Objection to the

24 question. Assumes fact not in evidence. Only

25 information given, but go ahead.

220

1 A. I don’t remember question.

2 Q. Is this the whole truth about the toxicity

3 of the asbestos fiber that Union Carbide was selling

4 in 1972?

5 MR. JORDAN: Objection to the form of

6 the question.

7 A. I believe this is reasonably accurate. He

8 is discussing the regulation and what should be done

9 and protective equipment and engineering methods and

10 everything else. I don’t see anything particularly.

11 MR. JORDAN: Why don’t you read the

12 last paragraph, too. Go ahead.

13 Q. Did I prevent you from reading anything

14 here so far, sir?

15 A. No.

16 MR. PLACITELLA: Okay. So why don’t

17 you let me ask the questions and if you think –

18 MR. JORDAN: You are not going to

19 letter him read the last paragraph?

20 MR. PLACITELLA: You’re asking him

21 that question. It is my right to take the

22 deposition, with all due respect.

23 MR. JORDAN: With all due respect –

24 MR. PLACITELLA: I’ll get to it. Let

25 me ask the questions.

221

1 MR. JORDAN: Ask your questions.

2 Q. Sir, was Reichold –

3 MR. PLACITELLA: I didn’t exclude

4 anything.

5 Q. Was Reichhold Chemical an important client

6 for Union Carbide?

7 A. I don’t know if they ever really were. I

8 think they were an off and on customer of Union

9 Carbide.

10 Q. Were they important enough to get the

11 truth?

12 MR. JORDAN: Objection to the form.

13 A. I believe all customers were important

14 enough to get the truth.

15 Q. Sir, when you talk about the toxicity of

16 asbestos — by the way this was not some low level

17 employee, right, this was your boss’ boss’ boss; who

18 wrote this letter.

19 A. Correct?

20 Q. He was the vice-president of the company?

21 A. Who Jim Rawlings?

22 Q. Yes.

23 A. He was the president of the Metals

24 Divisions.

25 Q. Right. The only one above him was the

222

1 president.

2 A. Of the Metals Division.

3 Q. Right. And when he talks about the

4 toxicity of asbestos, he doesn’t even mentioned word

5 mesothelioma, does he?

6 A. Well, again, it shows that this document

7 was not intended to provide every answer to every

8 question. It was just our knowledge at the time

9 before the regulations had actually gone into

10 effect.

11 Q. That’s not true, sir. You knew about

12 people getting sick in 1967 who didn’t even work

13 with asbestos who got mesothelioma?

14 MR. JORDAN: Objection to the form.

15 Q. True?

16 A. That was in doctor — I mean Harry Rhodes’

17 report at the Brighton conference. We were aware of

18 that. There were a number of studies that were

19 done.

20 Q. Okay. So, when it talks about cancer and

21 the toxicity of asbestos, anybody who would read

22 this letter would come to the conclusion that it

23 would take “massive long term exposures to asbestos

24 dust to get cancer,” right?

25 MR. JORDAN: Bronchogenic

223

1 carcinoma.

2 MR. PLACITELLA: Right. Exactly.

3 A. I could see it could be interpreted that

4 way.

5 Q. Sure, but if you remember –

6 A. But again, this is not the do all, end

7 all. James Rawlings was not a medical person, to

8 the best of my knowledge, and I think he says that

9 to the effect if you want it in more detail, we

10 could meet together and I’m assuming he would bring

11 somebody like Dr. Dernehl to go into the medical and

12 toxicology end of the subject.

13 Q. He wasn’t the medical doctor. He was just

14 vice-president of the company, right?

15 A. He was president of the Metals Division,

16 which was one of seven or eight divisions of the

17 corporation.

18 Q. He was vice-president in the overall

19 corporation?

20 A. I don’t think so.

21 Q. He worked on Park Avenue. Isn’t that

22 where all the bigwigs worked back then?

23 MR. JORDAN: Objection to the form.

24 A. I don’t know in you want to say bigwigs.

25 Let’s say that was our corporate headquarters. I

224

1 worked at Park Avenue. I wasn’t a bigwig.

2 Q. Did you eat the same meals?

3 A. No. I had to eat a lot of cheese

4 sandwiches.

5 Q. I figure that’s how they treated you.

6 MR. JORDAN: Objection to the side

7 bar.

8 Q. With respect to the toxicity of asbestos,

9 you will agree with me that mesothelioma is nowhere

10 in this document, right? That’s all I’m asking you.

11 A. The answer to your question is yes, but

12 again, it was not an exhaustive document. We

13 offered to discuss it in more detail if they so

14 desired.

15 Q. Yes, sir. And nothing was done by

16 accident, right? Somebody above you decided to

17 author this document about the toxicity of asbestos

18 and leave out mesothelioma, true?

19 MR. JORDAN: Objection to the form.

20 A. I don’t know whose decision not to put

21 mesothelioma in this document. I don’t know who

22 made that decision.

23 Q. There’s nothing in here about short term

24 exposure can kill you, right?

25 MR. JORDAN: Objection to the form of

225

1 the question.

2 A. It doesn’t say that.

3 Q. It says only massive, long term exposure

4 can kill you.

5 MR. JORDAN: Objection to the form of

6 the question.

7 A. It says that.

8 MR. PLACITELLA: Mark this next.

9 (The document is marked as

10 P-23 for Identification.)

11 MR. JORDAN: We object to that on a

12 privilege basis, but go ahead.

13 Q. This is a document entitled April 6,1973.

14 It says originating department, Calidria Asbestos -

15 Marketing. Was that you?

16 A. No, that was Niagra Falls. I was in the

17 marketing department, but I was located in Atlanta.

18 Q. It was authored by John L. Myers, right?

19 A. Yes.

20 Q. And he was your boss’ boss?

21 A. Yes.

22 Q. You have seen this document a number of

23 times before, correct?

24 A. I’m aware of John Myers giving a speech to

25 the plastics group. I believe it was in New York

226

1 and the documents being passed by the law department

2 and also by the medical department and they were

3 commented on and Mr. Myers, after the fact,

4 responded to the SPE and requested that some

5 revisions be made and mailed out to the attendees of

6 the speech, yes.

7 Q. He gave a speech and then he was so proud

8 of his speech he sent it over to the law department

9 and said look at what I did, right?

10 MR. JORDAN: Objection to the form of

11 the question. Argumentative.

12 A. I wouldn’t say he was so proud of the

13 speech.

14 Q. It was important enough that he sent back

15 to Park Avenue?

16 MR. JORDAN: Objection to the form.

17 A. I think passed documents by our law

18 department and medical people just for opinions and

19 comments. It wasn’t like somebody would just write

20 something about medical history and throw it out

21 there to a customer or somebody.

22 Q. And Mr. Myers, he was the one who dictated

23 the information that you had the ability to

24 translate, right. He was Mr. Rhodes’ boss?

25 MR. JORDAN: Objection to the form.

227

1 Q. If I had a question I would ask Dr. Rhodes

2 about it. If he had some problems with it, I guess

3 he would ask Mr. Myers.

4 Q. Right.

5 A. But the reason I was hired in the first

6 place was that Dr. Rhodes was going to concentrate

7 on the regulatory toxicology area and he was mostly

8 my source for that kind of information.

9 Q. But Mr. Myers is the one who determined

10 what Dr. Rhodes would disclose, right?

11 MR. JORDAN: Objection to the form.

12 A. I don’t think so. I think Dr. Rhodes knew

13 some things that maybe John Myers didn’t know. I

14 don’t think anybody kept any secrets I never saw

15 that..

16 Q. He gave a presentation and did he a slide

17 show, right?

18 A. Yes.

19 Q. I want to ask you about some questions

20 about the slide show. I tried to put the pieces

21 together.

22 A. Okay.

23 Q. He has a slide number three and he

24 discusses that at, I guess, the first page?

25 A. Where are you?

228

1 Q. Thank you Mr. Halas, ladies and

2 gentlemen. Do you see that?

3 A. I see that, yes.

4 Q. And it says, “If the media chose to

5 sensationalize my presentation –

6 A. You dropped about three paragraphs.

7 Q. Yes. Down to slide, down three. I

8 promised I would get out of here today so I’m not

9 going to hit every slide.

10 A. Good.

11 Q. If the media close to sensationalize my

12 presentation you might see the headline shown on the

13 next slide three. Chrysotile asbestos will not

14 affect your health. That’s what I have up here.

15 That’s the slide. Do you see it?

16 A. Yes.

17 Q. This could be a true statement, however,

18 if I was being quoted, I would have to add the

19 following, and then he goes to slide four. Slide

20 four says unless breathed in excess quantities for

21 many years. Correct?

22 A. That’s what it says, yes.

23 Q. That’s the same thing that was in the last

24 document from 1972, right? Same principle, you

25 ain’t going to get sick from asbestos unless you

229

1 breathe it a lot for many years?

2 MR. JORDAN: Objection to the form.

3 A. All I know about this document and slide

4 show was that it went by our law department and

5 medical department. It was commented that some of

6 the things that John said could be misleading.

7 Q. I’m going to get to that. My question to

8 you was, this comment about unless breathed in

9 excessive quantities over many years, that was the

10 same thing in principle that was in the very last

11 document we went through?

12 MR. JORDAN: Objection to the form.

13 Q. Nothing about short term exposure can kill

14 you, right?

15 A. He didn’t go on and on about the subject,

16 no.

17 Q. Then he says, “Note that I say Chrysotile

18 asbestos and an important distinction to be

19 discussed later ” Do you see that?

20 A. Yes, I see that.

21 Q. It goes on and it says — let’s jump to

22 it, — “It is accepted that asbestos can cause

23 disabling lung damage.”

24 A. Okay.

25 Q. Commonly referred to as asbestosis. Do

230

1 you it says slide five? See that?

2 A. Yes. I see that.

3 Q. But it is important to note that

4 asbestosis and statistical excess occurrences of

5 bronchogenic carcinoma, the two most common asbestos

6 related disease, have occurred only in workers with

7 massive long term exposure to asbestos dust, right?

8 A. That’s what he said.

9 Q. The same exact message that the

10 vice-president of the company was delivering in his

11 letter in 1972 to Reichhold Chemical.

12 MR. JORDAN: Objection to the form.

13 A. Well, this may have been one of the things

14 that John was called upon by the medical department

15 as maybe being misleading or not entirely accurate.

16 I don’t know which slides they objected to or what

17 they did.

18 Q. I’m going to get to that. I promise you

19 that I’m not going to try to hold back on that.

20 Let’s go back, sir, to the March 30,

21 1972 letter that was written by the vice-president

22 of the company a year earlier.

23 A. Okay.

24 Q. It says, “Statistical excess occurrences

25 of bronchogenic carcinoma have been recorded only in

231

1 connection with massive long term exposure to

2 asbestos dust,” right?

3 A. What paragraph are you in, Chris?

4 Q. Second paragraph.

5 A. First page?

6 Q. Yes. First page. I put it up there for

7 ease.

8 A. I see it.

9 Q. That’s the same exact message that your

10 boss’ boss delivered over a year later, right?

11 MR. JORDAN: Objection to the form.

12 Q. In his speech. Let’s go back to the

13 speech.

14 A. Okay.

15 Q. “It is accepted”, it doesn’t say debated

16 right, it says accepted, right?

17 A. That’s what it says.

18 Q. That asbestos can cause damaging lining,

19 that should be lung damage, commonly referred to as

20 asbestosis. It is important to note that asbestosis

21 and statistical excess occurrences of bronchogenic

22 carcinoma, the two most common asbestos related

23 disease, have occurred only in workers with massive

24 long term exposure to asbestos dust. Right. Same

25 message.

232

1 A. That’s what he is saying.

2 Q. Nothing about short term exposures killing

3 people, right?

4 MR. JORDAN: Objection to the form of

5 the question.

6 A. Well, I didn’t read the whole document.

7 Q. I’m going to get there.

8 Let’s take a break.

9 (Recess taken)

11 Q. Flip on down to where they talk about

12 slide 11.

13 A. Myers?

14 Q. Yes. It says, “There’s increasing

15 evidence chrystolite and amosite should be more

16 stringently controlled than chrysotile.”

17 Did you ever tell your customers that, you

18 Mr. Walsh?

19 A. No. I did not.

20 Q. Now, as you indicated, this speech was

21 ultimately given to the medical department to check

22 for accuracy, right?

23 A. Yes. I did notice right in that next

24 sentence there that John did talk about short

25 exposures to the minerals that can result in the

233

1 development of mesothelioma.

2 Q. Right. He talked about. He distinguished

3 between Chrysotile and others, right?

4 A. Yes, he did.

5 MR. PLACITELLA: Mark this document.

6 (The document is as

7 P-24 for Identification.)

9 Q. This is a May 22, 1973 correspondence from

10 the medical department, correct?

11 A. Yes.

12 MR. JORDAN: Objection on the basis

13 of privilege also.

14 A. Who was the author? Oh, Ken Lane.

15 Q. Who was Ken Lane?

16 A. He was a doctor well, assistant medical

17 director of Union Carbide Corporation.

18 Q. The whole company?

19 A. The whole company.

20 Q. So what he did is he went back through the

21 speech and did a review, right?

22 A. Is this what this document is? Maybe I

23 just need to read it.

24 Q. Glance at it for a second. Don’t take too

25 long because I don’t want to go past five.

234

1 A. Me either.

2 Q. You can flip down, by the way, to page 6

3 where it talks about slide commentaries. That’s the

4 only thing I’m going to ask you about.

5 A. Okay.

6 Q. I tried to put this together for clarity

7 purposes. I put slide three back up. He is

8 commenting on slide three. This is the, up here on

9 the screen, this is the document you are looking at?

10 A. Yes, I believe it is.

11 Q. Slide three, where it says Chrysotile

12 asbestos will not affect your health. This could be

13 a true statement, however, if I was being quoted I

14 would have to add the following. What Dr. Lane says

15 is that’s misleading?

16 A. That’s what Dr. Lane says.

17 Q. Then he goes to slide four and it says

18 unless breathed in excessive quantities for many

19 years, and he says excessive may be less than the

20 allowable concentration, meaning the TLV, right?

21 A. Yes, I would interpret like that.

22 Q. And many, maybe a few or less? Right?

23 A. That’s what he says.

24 Q. Doesn’t like that excess quantities for
many
25 years, right?

235

1 A. No, he was just clarifying I think for Mr.

2 Myers. He objected to it.

3 Q. Then he talks about the issue of

4 distinguishing Chrysotile where it says, “Note that

5 I say Chrysotile asbestos an important distinction.”

6 Do you see that?

7 A. No. Where did you go from where you just

8 were?

9 Q. Right underneath

10 A. You are back on this report?

11 Q. I’m comparing the two. I put it up here

12 so we could move through it.

13 A. Okay.

14 Q. There’s the slide.

15 A. You are talking about slide five now?

16 Q. I’m talking about slide four.

17 A. Okay.

18 Q. And he says Chrysotile is not an important

19 distinction, right?

20 A. Yes.

21 Q. Then he jumps down and he talks about

22 slide five. Do you see that?

23 Slide five is the one that talked about

24 massive long term exposure to asbestos dust. Do you

25 remember that?

236

1 A. Yes.

2 Q. The same message that was delivered a year

3 earlier by the vice-president Union Carbide?

4 MR. JORDAN: Objection to the form.

5 Q. Right?

6 A. Yes, and again, Mr. Rawlings was not a

7 medical person. We offered if bring in a medical.

8 Q. He was only a vice-president of the whole

9 company.

10 A. He was not a medical.

11 Q. What Dr. Lane says is massive long term

12 exposure to asbestos has caused asbestosis and

13 cancer, but so have some low level short term

14 exposures, right?

15 A. Correct.

16 Q. He says this is a half truth and is

17 misleading. Do you remember that?

18 A. Yes.

19 Q. Do you remember when I asked you before

20 about whether the message about massive long term

21 exposure was the whole truth?

22 A. Well –

23 MR. JORDAN: Objection to the form.

24 A. Idon’tknowofanyinstance in my entire

25 career at Union Carbide where somebody intentionally

237

1 mislead or tried to hide anything about the asbestos

2 and health issue. That is about all I could say on

3 John’s — John did a speech. He passed it by the

4 law department. The law department commented on it.

5 It was corrected and sent to the people who attended

6 the presentation.

7 Q. So did Mr. Rawlings go back and tell all

8 his customers that what he was telling them was half

9 truths?

10 MR. JORDAN: Objection to the form.

11 A. I don’t believe Mr. Rawlings made sales

12 calls. I don’t know what Mr. Rawlings might have

13 done.

14 Q. Well, he was writing letters to customers

15 saying only massive long term exposure to asbestos

16 can cause disease.

17 MR. JORDAN: Objection to the form.

18 Not what it says.

19 Q. So the medical doctor from Union Carbide

20 said this statement is a half truth and misleading,

21 true?

22 A. That’s what he said, yes.

23 Q. So the statement that was given was not

24 the truth and the whole truth according to the

25 medical director, the assistant medical director for

238

1 Union Carbide.

2 MR. JORDAN: Objection to the form.

3 Go ahead.

4 A. I think, again, we are talking about — I

5 don’t believe there was any intention on John Myers’

6 part to mislead or hide or anything of that sort

7 part. My experience at Carbide was that the company

8 was not that type of a company.

9 Q. Sir, this is the same company that

10 poisoned how many people in Bohpal?

11 MR. JORDAN: I object to that. This

12 is ridiculous.

13 Q. You said it is not that kind of company.

14 A. No, it is not. That was my experience.

15 Q. But it had a really poor safety record

16 with the public, didn’t it?

17 A. The Calidria operation –

18 MR. JORDAN: Objection to the form.

19 Q. I’m talking about Union Carbide. The

20 letters were sent by the vice-president Union

21 Carbide, not just somebody in the Calidria

22 operation.

23 A. Are we talking about Calidria or are we

24 talking about the corporation?

25 Q. I’m talking about the corporation. Had a

239

1 pour safety record.

2 A. I don’t know what their safety record was.

3 MR. JORDAN: Objection to the form.

4 Q. Let’s move on. When he talks about slide

5 seven through ten, keep that open, please.

6 A. Still on –

7 Q. Yes, sir.

8 A. I thought we moved on.

9 Q. No.

10 A. We didn’t move on. Okay.

11 Q. Page 7 through 10 is talking about the

12 varieties of asbestos. And what he says is that’s

13 interesting, but irrelevant to the fact that all

14 varieties produced disease, right?

15 A. I think that’s a reasonable statement by

16 Dr. Lane.

17 Q. And then slide 11 where Mr. Myers said

18 there’s increasing evidence that Chrysotile and

19 amosite should be more stringently controlled than

20 Chrysotile.

21 What Dr. Lane says is hey, we are

22 discussing Chrysotile. This is a diversionary

23 tactic, right?

24 A. That was Dr. Lane’s opinion. I think

25 about this time there were some studies come out in

240

1 ’72 that link the Chrysitolite and amosite type, but

2 it was all asbestos.

3 Q. What Dr. Lane says is, hey, don’t start

4 talking about this type and that type. It is all

5 asbestos and it all causes disease, right?

6 MR. JORDAN: Objection to the form of

7 the question.

8 A. We said that, yes. Our product was

9 asbestos.

10 Q. Now, you indicated early on that you

11 believed that sometime in the ’60s you started

12 putting labels on the Calidria product?

13 A. I believe it was 1968 was the first time

14 we put a label.

15 Q. In preparing for today’s deposition, the

16 80 hours, did anyone ever show you the testimony

17 from the people who were given in a trial under oath

18 who were charged with putting the labels on the

19 products? Did you ever see that testimony, whose

20 job it was to physically put the label on the

21 product?

22 MR. JORDAN: Are you talking about

23 Kelly Moore? The Carbide employees at Kelly Moore?

24 MR. PLACITELLA: Yes.

25 A. I was kind of thinking of some testimony

241

1 that Dr. Dernehl talked about where he was on a

2 label.

3 MR. JORDAN: He is talking about the

4 people –

5 A. The testimony.

6 Q. Yes.

7 A. No, I didn’t see the testimony of the

8 three individuals in the Kelly Moore trial. I did

9 however, see Daryl Garcia’s testimony, who was also

10 a King City employee.

11 Q. So you were never shown the testimony of

12 Arthur Valdez?

13 A. No, I was not.

14 Q. He says that he started working in Carbide

15 in 1977. Just look up there.

16 A. Okay.

17 Q. I’m trying to move this through.

18 MR. JORDAN: Objection.

19 Q. He says when he started there in ’77 that

20 were no warnings.

21 A. I think there’s enough documented

22 information in addition to Daryl Garcia’s deposition

23 that shows that there were safety meetings on a

24 monthly basis, there were tailgate meetings out in

25 the parking lot and there were also continuous

242

1 safety checks during the day by people like Bob

2 Cronkite, who was a safety — I don’t know what his

3 title was. He was involved in the safety of the

4 employees.

5 MR. JORDAN: To finish that out it

6 says we would have stickers and we would stick them

7 on the bags.

8 MR. PLACITELLA: Exactly.

9 Q. What the man says under oath in a trial is

10 back when you first started working there in ’77?

11 A. Yes.

12 Q. What do you remember about whether or not

13 those bags had any warnings on them. Answer, they

14 have didn’t have any warnings.

15 At a later time did you start putting

16 warnings on these bags? Answer, yes. How would you

17 put warnings on those bags? We would have stickers

18 and we would put, just like stick them on the bags.

19 MR. JORDAN: Objection to the use –

20 this man is obviously confused. I don’t have the

21 full account of the transcript to tell you whether

22 he was confused about this particular point as

23 Mr. Walsh –

24 Q. Did you ever see this testimony before you

25 sat here, right here today?

243

1 A. Before today?

2 Q. Yes.

3 A. No, but let me say –

4 Q. That’s not my question, sir, I have to

5 finish this on time.

6 MR. JORDAN: Let him go on.

7 Q. And did you ever see his testimony where

8 he was told, as an employee of Union Carbide, that

9 your fiber was not dangerous, it was only the long

10 fiber?

11 MR. JORDAN: Objection.

12 A. I don’t know anybody at Union Carbide who

13 would have told him that.

14 Q. It says, “The seconds thing I want to ask

15 you about Mr. Valdez, is what you were told by Union

16 Carbide people about the hazards, whether or not

17 asbestos could hurt you. Answer, when I first

18 started working the safety engineer told us the

19 product we were working with was short fibers, not

20 long fibers. The long fibers are the ones that

21 messes you up. In other words, you know caused

22 cancer or something like that. All right. Do you

23 remember the name of the safety engineer? Daryl

24 Garcia.

25 Do you know who he is?

244

1 A. Yes, I know Daryl.

2 Q. And did he tell you that short fibers

3 wouldn’t hurt you. Answer, yes

4 MR. JORDAN: Objection to the use of

5 the transcript.

6 Q. Did you ever see that testimony before?

7 A. Having read –

8 MR. JORDAN: Let me get my objection.

9 Objection to the use of the transcript without

10 slowing us the full amount of the transcript.

11 MR. PLACITELLA: He had 80 hours to

12 read whatever you thought was important, counsel.

13 MR. JORDAN: Objection to the side

14 bar.

15 Q. Let me move the next one. Did you ever

16 see of the testimony of George Navaro in the same

17 trial?

18 A. No.

19 Q. Was he also confused? He was also another

20 employee who put labels on the bags. You never saw

21 this before?

22 A. Labels on the bags were done right at the

23 very beginning before we had bags printed. Once the

24 bags were printed, that’s how they went out starting

25 in ’68.

245

1 Q. That’s –

2 A. We didn’t stick labels from ’68 to ’72 on

3 the bags.

4 Q. He says, first of all did you use to work

5 for Union Carbide out at the Kings City mine and

6 mill? Yes, 11 years. That’s where you got the

7 asbestos right, Mr. Walsh?

8 A. What do you mean?

9 Q. That’s where you extracted it and

10 manufactured it.

11 A. It was processed in King City. The

12 deposit was about 30 miles away up in the hills.

13 Q. It says okay. Can you please –sorry, can

14 you tell us when you started working for them.

15 Answer ’74. Well, they moved up to date to November

16 27th, I believe. First of all when you started

17 working out their, did you all, and that’s

18 Mr. Lanier. Did you all have asbestos warnings on

19 all the bags. Answer, well I don’t think they had

20 warnings because we had to put, or after I worked I

21 don’t know how many years, we started putting

22 sticker warnings, stickers, you know.

23 When you first started work there in ’74,

24 right. For a while you didn’t do anything to those

25 bags. No. Tell me what, in instead of me putting

246

1 words in — would you just tell the jury what you

2 remember about warnings on the bags and stickers and

3 all that in your own words. Answer, well they

4 always buy a lot of bags. A whole bunch of bags,

5 you know, to have in the stockpile. So then, you

6 know, after, I don’t know what year, but you know we

7 had to use all other bags before. You know, put

8 stickers on them and before they got on new ones

9 with the label on them, so I don’t know how many

10 years I worked there before we started putting

11 stickers on. Okay you started in ’74. Answer,

12 right. For a while you did nothing to the bags. Is

13 that right. Answer. Right. Question, then after

14 some number of years, you didn’t know how many, you

15 started putting stickers on the bags. Answer,

16 right.

17 Did you ever see that testimony in the 80

18 hours that you spent preparing for this deposition?

19 MR. JORDAN: Objection to the form.

20 A. I did not see the testimony. I know he is

21 misinformed because in 1972 when the OSHA regulation

22 issued we put the warning prescribed in the

23 regulation on the bags. That’s a fact that’s been

24 documented in various pieces of correspondence.

25 Q. Well, who would –

247

1 A. Prior to that it is possible what he is

2 talking about, there were some unlabeled bags with

3 the OSHA warning, that stickers were ordered in.

4 Until we could get the preprinted bags and stickers

5 were put on those bags which had the prescribed OSHA

6 warning. That’s what I believe he is talking

7 about.

8 Q. Okay. Who would be in a better position

9 to know, you or the guy who was actually at the job

10 putting the stickes on the bags?

11 MR. JORDAN: Objection to the form.

12 A. In this particular case, I feel I know

13 better.

14 Q. Okay. Last couple of questions, then I’ll

15 let Mr. Greco ask you questions.

16 You are aware that from 1974 forward there

17 were multiple attempts made to require internally,

18 rather, to ask Union Carbide to put warnings about

19 cancer on their bags?

20 MR. JORDAN: Objection to the form.

21 Are you aware of that?

22 A. I don’t know what you are referring to.

23 Is there a document you are talking about?

24 Q. Maybe we will do it again. Are you aware

25 that there were multiple requests during the 1970s

248

1 to include asbestos and cancer on the warnings?

2 A. There were discussions within Union

3 Carbide and there were proposals made, but I think

4 by the general time it all came about the business

5 was sold.

6 Q. And all of the proposals to put asbestos

7 and cancer on the warning were rejected.

8 MR. JORDAN: Objection to the form.

9 Q. Right?

10 A. I don’t know they were rejected. It was

11 us making the proposal over and above what the

12 regulation called for.

13 Q. Right. Then somebody above you made the

14 determination not to do it

15 MR. JORDAN: Objection to the form.

16 A. Well, as I understand it, the decision was

17 based on — really wasn’t any new evidence to

18 require it, and also entailed a lot of factors other

19 than just putting the label on the bag.

20 Q. Somebody above you decided not to put

21 cancer on the bag. That’s my last question.

22 A. Somebody above me decided — the decision

23 was made above me, yes, it was.

24 MR. PLACITELLA: I’ll pass the

25 witness to Mr. Greco.

249

2 CROSS EXAMINATION BY MR. GRECO:

4 Q. Hello, Mr. walsh. My name is Marc Greco.

5 I hopefully have just a few questions.

6 Did your sales region include the State of

7 North Carolina?

8 A. When I first started it did. North

9 Carolina, South Carolina, Georgia, Tennessee,

10 Alabama and Florida.

11 Q. Did you make any sales to Albert Moral

12 Paper Company?

13 A. Not to my knowledge, no.

14 Q. Did you provide any information regarding

15 the hazards of asbestos to any customers that was

16 not given to the customers who made joint compound

17 products?

18 MR. JORDAN: Objection to the form.

19 A. Ask that again, Marc.

20 MR. JORDAN: I’m not sure what you

21 mean.

22 Q. You discussed the warnings and information

23 that were provided to the joint compound product?

24 MR. JORDAN: Did he give the same

25 information? I object.

250

1 Q. Did you give additional information you

2 didn’t give to them to other customers?

3 A. Oh, if somebody was like in the plastics

4 industry we had a list of things that were relative

5 to plastic. There were some instances of that, but

6 the basic information I handed out was the

7 toxicology package that I talked about. And that

8 went to all customers that I called on, either the

9 first, second or third visit I made there.

10 Q. And that toxicology report was the same

11 for all customers?

12 A. Not the –What time period are we talking

13 about? Because prior to ’72 we had the ’64 and ’69

14 toxicology report. After 1972 I had an OSHA

15 regulation which defined what needed to be done as

16 an asbestos user and what guidelines and what if you

17 didn’t meet the level, what you had to do.

18 Q. I think my question has been answered.

19 Thank you.

20 MR. JORDAN: Union Carbide reserves

21 all of its questions until the time of trial.

22 (The deposition is concluded at 5:00 p.m.)

251

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

3 I, MARC BRODY, Notary Public and

4 Certified Shorthand Reporter of the State

5 of New Jersey, do hereby certify that prior

6 to the commencement of the examination

7 JOHN E. WALSH

8 was duly sworn by me to testify the truth,

9 the whole truth and nothing but the truth.

10 I DO FURTHER CERTIFY that the

11 foregoing is a true and accurate transcript

12 of the testimony as taken stenographically

13 by and before me at the time, place and on

14 the date hereinbefore set forth.

15 I DO FURTHER CERTIFY that I am neither

16 a relative of nor employee nor attorney nor

17 counsel for any of the parties to this

18 action, and that I am neither a relative

19 nor employee of such attorney or counsel,

20 and that I am not financially interested in

21 the action.

23 Notary Public of the State of New Jersey

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