World Famous Mesothelioma Doctor Testifies about Dangers of Asbestos

CAUSE NO. 2007-CI-15853
Transferred from Cause No. 2007-CI-15853 in the 285th
Judicial District of Bexar County, Texas

DONALD A. YOUNG and wife, WANDA )
YOUNG, )
) IN THE DISTRICT
Plaintiffs, ) COURT OF
)
vs. ) HARRIS COUNTY, TEXAS
)
AMERICAN STANDARD, individually ) 11th JUDICIAL
and f/k/a KEWANEE BOILER ) DISTRICT
CORPORATION, et al., )
)
Defendants. )

DEPOSITION OF SAMUEL P. HAMMAR, M.D.
June 26, 2008
Seattle, Washington

Byers & Anderson, Inc.
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Serving Washingtons Legal Community Since 1980

2
1 APPEARANCES
2
3 For the Plaintiffs:
4 Christopher L. Madeksho
Madeksho Law Firm
5 8866 Gulf Freeway
Suite 440
6 Houston, TX 77017
713-910-8000
7 713-910-0250 Fax
cmadeksho@madeksholaw.com
8
Bruce Carter
9 Law Office of Bruce Carter
995 Millville Avenue
10 Hamilton, OH 45013-6615
513-829-7553
11 513-829-4579 Fax
brucecarteresq@cinci.rr.com
12
13
For Defendant Lorillard Tobacco Company:
14
Christopher V. Cotton
15 Shook, Hardy & Bacon
2555 Grand Blvd.
16 Kansas City, MO 64108-2613
816-474-6550
17 816-421-2708 Fax
ccotton@shb.com
18
Robert D. Homolka
19 Shook, Hardy & Bacon
2555 Grand Blvd.
20 Kansas City, MO 64108-2613
816-474-6550
21 816-421-2708 Fax
rhomolka@shb.com
22
23
24
25

3
1 APPEARANCES (Continued)
2 For Defendant Garlock:
3 John A. LaBoon
Segal McCambridge Singer & Mahoney
4 100 Congress Avenue
Suite 800
5 Austin, TX 78701
512-476-7834
6 512-476-7832 Fax
jlaboon@smsm.com
7
8 For Defendant Ajax Boiler, Inc.:
9 Kenneth Royer
Willingham, Fultz & Cougill
10 808 Travis
Suite 1608
11 Houston, TX 77002
713-333-7600
12 713-333-7601 Fax
kenr@willingham-law.com
13
14 For Defendant Rheem Manufacturing Company:
15 Tina M. Hansard
Hawkins, Parnell & Thackston
16 4514 Cole Avenue
Suite 500
17 Dallas, TX 75205
214-780-5104
18 214-780-5200 Fax
thansard@hplegal.com
19
20 For Defendant Oakfabco (via telephone):
21 Nicholas S. Baldo
Stevens, Baldo & Freeman
22 550 Fannin
Suite 700
23 Beaumont, TX 77701
409-835-5200
24 409-838-5638 Fax
baldo@sbf-law.com
25
Also Present: Sally Merriam (via telephone)

4
1 EXAMINATION INDEX
2 EXAMINATION BY: PAGE NO.
3 MR. CARTER 9
4 MR. LABOON 60
5 MR. ROYER 67
6 MS. HANSARD 70
7 MR. COTTON 72
8 MR. MADEKSHO 235
9 MR. LABOON 240
10 MR. BALDO 242
11 MR. COTTON 243
12 MR. MADEKSHO 257
13
14 EXHIBIT INDEX
15 EXHIBIT NO. DESCRIPTION PAGE NO.
16
17 Exhibit No. 1 9-page Curriculum Vitate of 7
Dr. Hammar, June 2008
18
Exhibit No. 2 5-page Dr. Hammar report on 7
19 Donald Young, dated 6/9/08
20 Exhibit No. 3 6-page report by William 7
Ewing, dated 6/13/08
21
Exhibit No. 4 6-page Article by Dr. Dodson 7
22 and Dr. Hammar
23 Exhibit No. 5 8-page summary Borg-Warner v. 7
Flores
24
25

5
1 EXHIBIT INDEX
2 EXHIBIT NO. DESCRIPTION PAGE NO.
3 Exhibit No. 6 13-page summary 7
Georgia-Pacific v. Stephens
4
Exhibit No. 7 2-page Affidavit of Donald 31
5 Young, dated 6/12/08
6 Exhibit No. 8 3-page article known as 60
Talcott Study
7
Exhibit No. 9 6-page Military Spec, dated 71
8 9/6/90
9 Exhibit No. 10 24-page packet of information 73
reviewed by Dr. Hammar
10
Exhibit No. 11 4-page Notice of Deposition 86
11 from Lorillard, dated 5/30/08
12 Exhibit No. 12 10-page Plaintiffs Motion to 87
Quash Lorillards Notice of
13 Deposition, dated 6/4/08
14 Exhibit No. 13 80-page file from Dr. Hammar 107
on Donald Young
15
Exhibit No. 14 1-pg letter to Dr. Hammar 112
16 from Nadia Goodson, dated
4/4/08
17
Exhibit No. 15 3-page Affidavit of Alejandra 112
18 Walding, dated 4/4/08
19 Exhibit No. 16 1-page Dr. Hammar letter 113
regarding file status, dated
20 6/9/08
21 Exhibit No. 17 1-page letter to Nadia 115
Goodson from Dr. Hammar,
22 dated 6/9/08
23 Exhibit No. 18 1-page Invoice No. 6428, 117
dated 6/9/08 for $800
24
25

6
1 EXHIBIT INDEX
2 EXHIBIT NO. DESCRIPTION PAGE NO.
3
Exhibit No. 19 23-page Plaintiffs Response 188
4 to Defendants Standard
Interrogatories, dated
5 10/22/07
6 Exhibit No. 20 20-page Plaintiffs Second 195
Amended Responses to
7 Defendants Master Set of
Request for Disclosure, dated
8 3/13/07
9 Exhibit No. 21 1-page handwritten 240
calculations
10
Exhibit No. 22 14-page Article by 244
11 Rodelsperger on Asbestos and
Man-made Vitreous Fibers
12
Exhibit No. 23 4-page Article by Longo, 250
13 Crocidolite Asbestos Fibers
in Smoke from Original Kent
14 Cigarettes
15
16
17
18
19
20
21
22
23
24
25

7
1 BE IT REMEMBERED that on Thursday,
2 June 26, 2008, at 600 University, Seattle,
3 Washington, at 10:28 a.m., before CHRISTY SHEPPARD,
4 CCR, RPR, Notary Public in and for the State of
5 Washington, appeared SAMUEL P. HAMMAR, M.D., the
6 witness herein;
7 WHEREUPON, the following
8 proceedings were had, to wit:
9
10 <<<<<< >>>>>>
11 (Exhibit Nos. 1 through 6
12 marked for identification.)
13
14 SAMUEL P. HAMMAR, M.D., having been first duly sworn
15 by the Notary, deposed and
16 testified as follows:
17
18 MR. MADEKSHO: This is Chris
19 Madeksho for the plaintiffs, and we would object to
20 the questions or use of questions by any defendant
21 who has not fulfilled discovery obligations in this
22 case prior to today, the taking of Dr. Hammar, having
23 said that we can begin.
24 MR. CARTER: We further reserve our
25 right to come back for supplemental opinions once

8
1 discovery has been completed, and complete responses
2 have been received from defendants who are now
3 deficient.
4 MR. LABOON: Are there defendants
5 that are deficient?
6 MR. MADEKSHO: We are not claiming
7 that as to exposure evidence from Lorillard or Garlock
8 and the others. And we have had hearings in front of
9 Judge Davidson. The record enclosed indicates –
10 MR. LABOON: You are satisfied with
11 Garlocks responses at this time?
12 MR. MADEKSHO: At this time, yes.
13 MR. COTTON: What did you say about
14 Lorillard? I didnt quite hear that. You have no
15 objections with our responses?
16 MR. MADEKSHO: We have objections as
17 to responses, but as to exposure evidence and the
18 ability of our experts to opine, based on exposure and
19 quantification for the purposes of rendering specific
20 causation opinions, no; however, under discovery
21 obligations, yes. Those we will take up in court at
22 the proper time.
23 MR. CARTER: They shouldnt have any
24 impact on the testimony of Dr. Hammar.
25 MS. HANSARD: Just to be clear, does

9
1 that mean you are not going to allow the people that
2 you have issues with to question Dr. Hammar, or are
3 you just objecting?
4 MR. MADEKSHO: Im just objecting
5 for purposes of the record.
6 MS. HANSARD: I just wanted to be
7 clear.
8 MR. CARTER: And just before we get
9 into it, we have premarked six exhibts. Exhibit 1 is
10 Dr. Hammars CV.
11 Exhibit 2 is Dr. Hammars report in this matter.
12 Exhibit 3 is the June 13, 2008 report of William
13 Ewing.
14 Exhibit 4 is an article by Dr. Hammar and Dr.
15 Dodson from 2006, Pleural mesothelioma in a woman
16 whose documented past exposure to asbestos was from
17 smoking asbestos-containing filtered cigarettes.
18 Exhibit 5 is Borg-Warner vs. Flores.
19 Exhibit 6 is Georgia-Pacific versus Stephens.
20
21 EXAMINATION
22 BY MR. CARTER:
23 Q Now that weve got all of our paperwork done, we can
24 actually get started.
25 Dr. Hammar, if you would please introduce yourself

10
1 for the jury.
2 A My name is Sam Hammar, a pathologist in Bremerton
3 Washington, which is about 15 miles from here by ferry
4 boat.
5 I have an interest in lung pathology and an
6 expertise in asbestos-related lung disease. I have
7 seen over 15,000 cases of asbestos-related lung
8 diseases in my career.
9 Im actively doing research in asbestos-related
10 lung disease with a friend of mine in Texas by the
11 name of Ronald Dodson, who is a Ph.D. scientist.
12 Im on the U.S.-Canadian Mesothelioma Panel. Im
13 on the International Mesothelioma Panel. Im a member
14 of the International Mesothelioma Study Group.
15 Two weeks ago I participated in a mesothelioma
16 symposium at the request of Dr. David Sugarbaker who
17 is a professor at Harvard, and Brigham and Womens
18 Hospital, and I gave a talk on the histologic features
19 of mesothelioma. And thats probably enough.
20 Q Okay. Just for background for the jury, would you
21 explain what a pathologist is.
22 A Sure. Pathology, by definition, is the study of
23 disease. And there are four basic types of pathology.
24 One is called anatomic pathology, which is probably
25 the most common in which we look at biopsy specimens

11
1 or organisms that come from the operating room. We
2 also evaluate specimens that are obtained on an
3 outpatient basis. And we look at these tissue
4 specimens with our own eyes, describe them with
5 respect to size, shape, color, consistency.
6 We take thin sections of these specimens that are
7 put through an automatic tissue processor where very
8 thin pieces of tissue are cut, put on a glass slide,
9 and stained with a couple of dyes. One is called
10 eosin and one is called hematoxylin, and then we look
11 at the tissue and determine if there is anything
12 abnormal about it.
13 If there is, we basically write a report
14 indicating what disease process we think is present.
15 That information is then transmitted back to the
16 clinical doctor who is taking care of the patient from
17 which the biopsies come from, where the organ has come
18 from, and they use that information to treat the
19 patient.
20 The second type of pathology is called clinical
21 pathology that deals with actually running the
22 laboratory. And, at this point in time, what that
23 really involves is making sure that the instruments
24 that analyze things like serum are accurately
25 calibrated and that we have very good control. We

12
1 actually subscribe to several quality control –
2 several quality control companies that actually help
3 us determine that we do have good quality control.
4 And that would mean like, for example, if you had a
5 serum sample and you split it in half and you analyzed
6 it for something like creatine that you would
7 hopefully come back with basically the same numbers.
8 The third type of pathology is called forensic
9 pathology or medical examiner pathology, which you are
10 probably all familiar with by watching CSI on
11 television, and that involves the evaluation of
12 unnatural death like homicides or suicides, or natural
13 death in which the patient is not under the care of a
14 physician.
15 And then the fourth is environmental pathology,
16 which I do a fair amount of with Dr. Dodson. And we
17 try to gain insight into the mechanism of the disease
18 or the cause of the disease.
19 So thats what we are. And pathology kind of –
20 pathologists work behind the scenes. We usually are
21 in the basements of hospitals and we usually dont
22 have any windows and things like that, but we do
23 provide a very important service for taking care of
24 people and also investigating and understanding
25 disease.

13
1 Q And I want to hand you what was marked as Exhibit 1 as
2 a copy of your curriculum vitae. Its dated August
3 2007, and is that the most current version?
4 A No.
5 Q Okay. And from August 2007 present, what is needed to
6 update it?
7 A Theres a couple of things. Dr. Dodson and I wrote an
8 article published in Ultrastructural Pathology on
9 translocation of asbestos from the lungs to the lymph
10 nodes with respect to the size of the fibers, the
11 concentration of different fibers.
12 We also wrote an article thats now just been
13 published about a case report in which Dr. Roggli et
14 al, had evaluated initially, and then we evaluated the
15 same tissue and found different findings with respect
16 to fiber types and concentration, primarily
17 concentration.
18 And we wrote about the fact that the fiber
19 analysis data is highly influenced by the technique in
20 which you use to examine the specimen, specifically
21 the difference between an analytical transmission
22 electron microscopy versus scanning electron
23 microscopy, and that has quite a bit of information
24 and thats out right now.
25 MR. LABOON: Is that this article in

14
1 Inhalation Toxicology?
2 THE WITNESS: There you go. Have
3 you read it, Mr. LaBoon?
4 MR. LABOON: I havent read the
5 whole thing. Its a little thick.
6 THE WITNESS: Im just kidding.
7 The other thing coming out is a third edition of
8 Dail and Hammar with a pulmonary pathology book, and
9 in this book Dr. Dodson and I wrote the chapter on
10 asbestos, which is Chapter 27, which I thought was in
11 Volume 2 but it apparently is not. And we wrote
12 Chapter 43, Dr. Dodson, myself, and Dr. Henderson and
13 Dr. Sonia Klebe. Dr. Henderson and Dr. Klebe are from
14 Australia, and that country has the highest incidence
15 of mesothelioma in the world, and they are both
16 excellent pathologists.
17 And that chapter is about 300 pages long and has
18 1200 references, about 300 colored photographs, about
19 35 tables, and about 12 boxes. So that would be what
20 I have done since that June or August 2007.
21 Q And Chapter 43, whats that that you just mentioned,
22 the title?
23 A Pleural Neoplasms, I think, is the title. John could
24 maybe tell me.
25 Q Now can you briefly give us an overview of your

15
1 education and training.
2 A Sure. I went to undergraduate at Eastern Washington
3 State College University from 1961 to 1965 and
4 graduated with a BA degree in chemistry. I attended
5 University of Washington School of Medicine here in
6 Seattle from 1965 to 1969, graduated with an MD
7 degree. Did a straight pathology internship at the
8 University Hospital here in Seattle from July 1969
9 through June of 1970, then entered the University of
10 Washington Affiliated Residency Program in pathology
11 and was a resident from July 1970 through September of
12 1973.
13 Q Im trying to go to the numbers. In looking at this
14 version of your curriculum vitae you have listed 120
15 publications, plus another 13 abstracts, then of
16 course chapters in books which at this writing was 46
17 and several books.
18 If you were to look at the materials that are
19 listed on your CV, was there a particular focus
20 regarding asbestos?
21 A Oh, absolutely.
22 Q What first got you interested in the effects of
23 asbestos?
24 A It actually had to do with the electron microscopic
25 appearance of the disease, cancer, mesothelioma. They

16
1 have very unique ultrastructural appearances that one
2 can use to diagnose them. And in the days prior to
3 immunohistochemistry, it was probably the best
4 diagnostic technique there was, and thats what really
5 got me interested in asbestos-related diseases. And
6 then I started branching out a little bit more.
7 And I guess the other thing that resulted in me
8 becoming interested was actually in 1985 in October I
9 was actually contacted by an attorney here in Seattle
10 by the name of Robert Andre, who was an attorney at
11 Ogden Murphy & Wallace, and also called Ogden, Ogden,
12 & Murphy, and he was — at least I was told the head
13 counsel for Johns Manville Corporation.
14 And he wanted me to do an autopsy on an individual
15 who died from lung cancer to try to determine if that
16 lung cancer was causally related to asbestos.
17 Subsequently Mr. Andre put on many, many
18 symposiums for attorneys basically all over the United
19 States. And as a result of that, I frequently gave
20 talks for him at those symposiums. And as a result of
21 that, many attorneys asked me to evaluate cases for
22 them, so that was another part of me becoming
23 interested.
24 But I have always been interested in lung disease,
25 and since most of the diseases that are caused by

17
1 asbestos are lung disease it was fairly natural for me
2 to know something about them.
3 And then finally, and probably the most important
4 thing is I work in Bremerton, Washington. Its about
5 15 miles by ferry boat from Seattle. It has a
6 population of about 50,000 people. It has the highest
7 incidence of mesothelioma in the United States. It
8 has probably the highest incidence of asbestos-related
9 disease in the United States.
10 And the reason for that is that it is the home of
11 Puget Sound Naval Shipyard which has been in existence
12 in Bremerton since 1910. And about the fifth
13 generation of workers who have worked at the shipyard
14 and who have potentially been exposed to asbestos live
15 in Bremerton area.
16 Q I noticed one of the positions that you have is on a
17 Canadian-American Mesothelioma Panel. Can you explain
18 what that is?
19 A Sure. Mesothelioma is a rare type of cancer compared
20 to many other cancers like lung cancer, for example.
21 In the United States there is thought to be maybe
22 about 3,000 new cases per year of mesothelioma
23 compared to about 170,000 new cases of lung cancer
24 every year.
25 As a result of the rarity of that disease, many

18
1 pathologists have not had the opportunity to see too
2 many cases, so a panel was formed to help other
3 pathologists and other doctors potentially diagnose
4 mesothelioma.
5 And at this point in time there are ten
6 pathologists in the United States, one in Canada, Dr.
7 Churg, and one in Wales Great Britain, Dr. Gibbs. And
8 what we do is serve as an expert panel that will
9 review cases that are sent to us by other doctors and
10 other pathologists at no charge to the patient and no
11 charge to them.
12 What we do is fill out a form indicating whether
13 we think a certain disease is mesothelioma. If it is
14 mesothelioma, we indicate what subtype it is, for
15 example, epithelial subtype.
16 If its not mesothelioma, we try to indicate what
17 disease process we think is present. And that
18 information again is sent back to the pathologists or
19 doctor who sent it to us, and they would relay that
20 information back to the clinical doctor who is taking
21 care of the patient.
22 So its basically just a panel of experts who are
23 very knowledgeable in mesothelioma. We try to help
24 other physicians and help other patients at no cost.
25 Q About how many cases does the panel see every year?

19
1 A I would say probably about 50 would be a reasonable
2 number. Theres probably more than that that are
3 sent, but some of them — I think Dr. Churg, and I
4 would agree with him — are fairly straightforward and
5 probably not necessary for everybody to see, but the
6 ones that we see as a whole panel, I would say about
7 50 cases a year.
8 Q All right. Now can you give us an overview of how
9 asbestos negatively affects a person.
10 MR. COTTON: Objection, form.
11 THE WITNESS: Sure. Asbestos
12 negatively affects a person by causing two diseases.
13 One is a scarring disease, and one is a cancerous
14 disease.
15 And the scarring diseases that asbestos causes are
16 several. The most important is the disease called
17 asbestosis, which by definition is scarring of the
18 interstitium or the framework of lung tissue.
19 Probably the next most important would be diffuse
20 visceral pleural fibrosis, which is scarring of the
21 pleura that covers the lung.
22 Another would be hyaline pleural plaques, which
23 are areas of scarring that involve the parietal
24 pleura, which is the pleura that lines the chest
25 cavity.

20
1 Another would be a subtype of visceral pleural
2 fibrosis called round atelectasis in which there is an
3 area of invagination of scarred visceral pleura that
4 produces a nodule in the lung, that often is thought
5 to look like cancer.
6 And the last one is whats called benign asbestos
7 pleural effusion, BAPE, so those are the scarring
8 diseases.
9 Now how that happens, is the mechanism basically
10 has to do with the immune system and the inflammatory
11 system. Asbestos is an agent that when injected into
12 the lung or breathed into the lung causes
13 inflammation. And its usually what is called acute
14 inflammation.
15 But over a period of time it will change to
16 chronic inflammation. And some of the chronic
17 inflammatory cells like lymphocytes, for example,
18 produce lymphokines and cytokines which are usually
19 polypeptides, protein, and they actually stimulate
20 other cells like, for example, like fibroblast to
21 produce scar tissue. And thats thought to be how the
22 asbestos causes the scarring process.
23 Its sounds very simple, but its actually very
24 complex. Some of the new data suggests that asbestos
25 actually stimulates the autoimmune system and produces

21
1 kind of a connective tissue condition like lupus, for
2 example, and that may be the mechanism by which
3 asbestos causes pulmonary fibrosis.
4 And then with respect to the cancer there is two
5 main cancers that asbestos causes. One is
6 mesothelioma, which is thought to be a single tumor
7 for asbestos. Another is lung cancer, and there are
8 four different types of lung cancer: Adenocarcinoma,
9 squamous carcinoma, small cell carcinoma, and hard
10 cell indifferentiated carcinoma.
11 The way asbestos causes cancer is very complex,
12 but it can be summarized, I think, fairly simply.
13 That is that asbestos fibers that are breathed into
14 the lung can either stay in the lung or translocate to
15 other parts of the body, like the pleura or the
16 peritoneum, where they cause injury.
17 And the injury they case can either be direct
18 injury which asbestos fibers can directly penetrate
19 the cell, and actually penetrate the nucleus of the
20 cell and cause physical damage.
21 Or another way is that they actually can produce
22 molecules that cause damage, like oxygen and nitrogen
23 free radicals, and they cause damage to DNA.
24 And its thought that with respect to the cancer
25 thing its something that it takes a long time to

22
1 happen, and thats referred to as latent period, which
2 is the time from diagnosis to the time a person is
3 diagnosed with an asbestos cancer like mesothelioma.
4 And its thought that there are multiple changes or
5 injuries that occur over this long period of time that
6 eventually results in the formation of a single cancer
7 cell, mesothelial cancer cell, lung cancer cell, that
8 then undergoes a clonal proliferation.
9 And those clonal proliferations eventually produce
10 tumor masses that are a size that they interfere with
11 physiologic functions and they cause symptoms in
12 patients, which results in patients going to doctors
13 and eventually being diagnosed with cancer.
14 The actual mechanism is very complex, and if you
15 were to take, for example, a mesothelial caner cell at
16 the end of its life, or a persons life and you were
17 to do genetic analysis, you would find all kinds of
18 changes in the genes.
19 There would be changes in the genes that control
20 cell growth, which are referred to as proto-oncogenes.
21 Changes in genes that control cell death, which are
22 called tumor suppressor genes. And changes in genes
23 that actually repair DNA, which are DNA repair genes,
24 similar to BRAC1 and BRAC2, and also the nonpolyposis
25 colon cancer, DNA repair genes.

23
1 So its a very complex process but thats kind of
2 the basic idea.
3 Q Okay. And what are the most common pathways of
4 exposure to asbestos by someone who might contract the
5 disease?
6 A Well, by far the most common would be inhalation of
7 asbestos fibers that are in the air. Basically all
8 the diseases are caused by that except there are some
9 skin lesions that can be caused by direct contact with
10 asbestos. But generally all of the diseases that
11 asbestos causes are through inhalation of asbestos
12 fibers initially into the lung, and then some of those
13 fibers stay in the lung where they can cause lung
14 cancer or pulmonary fibrosis, visceral pleural
15 fibrosis, benign asbestos pleural effusions, or they
16 can translocate to other parts of the body like say
17 the pleura, the peritoneum, or the pericardium where
18 they cause mesothelioma.
19 Q Now can you briefly describe what asbestos is and your
20 experience with its most common uses.
21 A Sure. Asbestos, by definition, is a hydrated fibrous
22 silicate mineral. And its present in the earths
23 crust in various parts of the world. Dominant
24 deposits would be, for example, in Russia, Quebec,
25 Canada, Italy, Australia, China, and theres been a

24
1 few other countries.
2 And there are two major families, one is called
3 serpentine, which is the chrysotile type of asbestos
4 or white asbestos. It accounts for about 95 to 97
5 percent of all asbestos ever used in products.
6 The other family is referred to as amphibole
7 asbestos, and the most important fibers there are
8 amosite which actually stands for the African Mines of
9 South Africa, an acronym.
10 And the other one is crocidolite, which is blue
11 asbestos, present and mined a lot in South Africa and
12 also in Australia, and not mined anymore that I know
13 of. It is the most potent type of asbestos with
14 respect to mesothelioma production.
15 Asbestos is a fibrous mineral, and the reason that
16 it has been used so extensively is it is heat
17 resistant. Its an insulator and resistant to certain
18 chemicals, at least blue asbestos or crocidolite
19 asbestos is very resistant to acid, for example.
20 And asbestos has been used in over 3,000 products.
21 The one that probably I think — always immediately
22 think of would be thermal insulation, which is usually
23 a combination of amosite and chrysotile, but sometimes
24 one asbestos insulation product, Unibestos, was about
25 70 percent pure amosite.

25
1 And JM actually produced thermal insulation many
2 years in which it was a combination of crocidolite and
3 chrysotile. Right now most of the thermal insulation
4 that people would be exposed to would be amosite and
5 chrysotile.
6 Its been used, like I said, in over 3,000
7 products. Its been used in gaskets. Its been used
8 in packing. Its been used in various ceramic tiles.
9 Its been used extensively.
10 And over the years the concentration that was
11 allowed in the workplace has gradually decreased to a
12 level at this point in time which is .1 fiber/cc of
13 air, with the recognition that even at that
14 concentration there is going to be disease,
15 specifically mesothelioma.
16 Historically, asbestos was actually used in
17 ancient times several thousand years ago. In 1931 at
18 the Worlds Fair there was a person who dressed up in
19 a suit of asbestos and would go into this fire and
20 then come out and was never burned, so thats probably
21 enough about asbestos.
22 Q And you mentioned a term before called — you said
23 translocate. Can you define that for us.
24 A Sure. When asbestos enters the body it generally
25 enters through breathing in air that contains asbestos

26
1 fibers. And it usually is deposited initially in lung
2 tissue at the region of the respiratory bronchial and
3 the alveolar duct. They stay there and it usually
4 causes inflammation when it stops there, but some of
5 it doesnt actually stay there, it goes to another
6 part of the body. And the process of it going to
7 another part of the body is referred to as
8 translocation.
9 And what that is most important is that actually
10 mesothelioma, where asbestos actually moves from the
11 lung where its first deposited, to the pleura or to
12 the peritoneum or occasionally to the pericardium
13 where it can cause mesothelioma.
14 It can also translocate to almost every place in
15 the body. I mean, if you look at where asbestos
16 bodies have been found, which are asbestos fibers
17 covered by iron and protein, they have been identified
18 in basically every organ in the body. They have even
19 been identified in placentas. And they have even been
20 identified in stillborn infants, so thats the deal
21 about translocation.
22 Q Now regarding Mr. Youngs case, I am going to hand you
23 what has been marked as Exhibit 2. Do you recognize
24 Exhibit 2?
25 A Sure. Its a copy of my report that I prepared at the

27
1 request of the Madeksho — is that how you say it,
2 Madeksho?
3 MR. MADEKSHO: Madeksho.
4 THE WITNESS: Madeksho, okay. Got
5 it right. The Madeksho law firm.
6 I prepared that report which was transcribed on
7 June 9, 2008.
8 Q (By Mr. Carter) Okay. Now in preparing your report,
9 can you tell us what material you were provided and
10 what you reviewed?
11 A Sure. With respect to what I was provided, I was
12 provided information that was sent to me by Nadia
13 Goodson, who is a paralegal to Mr. Madeksho, who was
14 there in the office — here in this room. That listed
15 what they sent me, which was interrogatory responses
16 to Mr. Young, work history Exhibit 1, military service
17 records RFP 5, medical records, Brook Army Medical
18 Center and University of Texas, MD Anderson Cancer
19 Center, tissue pathology report from MD Anderson, and
20 pleural fluid pathology report.
21 And then I was given a brief summary of the fact
22 that Mr. Young worked as an information specialist in
23 various locations, and that during these times he was
24 exposed to asbestos and asbestos-containing products.
25 So I was given that information.

28
1 And basically what I have are the medical records,
2 pathology reports, and then the pathology materials
3 that I received were eight slides designated as
4 C-07-205441, and that was a pleural fluid. Let me see
5 which side that was on. That was a fine needle
6 aspiration biopsy of a right pleural chest wall mass,
7 so that was a cytology specimen. And then the slides
8 designated S-07-15694 which were seven slides in one
9 block.
10 And what a block is, when pathologists process
11 tissue they cut it in thin pieces and it goes into
12 what is called a cassette, which is a plastic
13 structure that you put a metal lid over. It goes into
14 an automatic tissue processor, which the water is
15 removed and the water is replaced with organic and
16 chemicals.
17 And eventually the tissue is infiltrated with very
18 hot wax. And once its infiltrated, they take that
19 specimen out and then you put it on a very — almost a
20 freezing plate and it will make a solid structure.
21 And a block is about one by three quarters by a
22 quarter of an inch, and in it would be a piece of
23 tissue that measures about a millimeter thick.
24 And you put that block into a machine called a
25 microtome and it very slowly advances it against a

29
1 very sharp steel knife, and that cuts very thin tissue
2 sections that measure about five micrometers in
3 thickness.
4 Those are floated onto a water bath, which is next
5 to the microtome. And you have a glass slide which
6 measures about two and three quarters by three
7 quarters by an eighth of an inch, you dip into the
8 water bath and lift up where the tissue is, which will
9 still contain the wax, and then you take those slides
10 put them into an oven and melt the wax, and then you
11 put them into an automatic tissue processor.
12 So what I received were seven slides, which were
13 slides that had been done. And they were stained with
14 two dyes that generally pathologists use, at least
15 they would have been stained — some of them would
16 have been stained with hematoxylin, which is a dye
17 that colors the nuclei of cells blue. And another dye
18 called eosin, which colors the cytoplasm of the cells
19 pink so that we can look at the tissue.
20 So thats what was done here. And the slides that
21 were designated S-07-15694 were of a chest wall mass
22 biopsy. Instead of doing a fine needle aspiration, in
23 which you take a syringe and put a needle that has a
24 bore size of about like a 25, very, very small
25 diameter, and you can directly put that into the tumor

30
1 and then suck it out and put that on slides directly,
2 and usually stain them with some cytology dye. That
3 was done, but they also actually took a tissue biopsy
4 specimen, where they got chest wall tissue and I
5 looked at that as well.
6 Q And you mentioned cytology. Would you tell us what
7 cytology is.
8 A Cytology is the study of cells, and with respect to
9 pathology its really a situation in which you are
10 trying to identify malignant cells. I mean, the
11 classic cytology specimen is, of course, a pap smear
12 from a woman.
13 Q Now after your report was written, were you also
14 provided a copy of a report by Bill — William Ewing?
15 A I received that. I got that from Mr. Madeksho.
16 Q You might just want to call him Chris.
17 A Chris, okay. I did get that, and it was dated June
18 13, 2008, and the report of William M. Ewing, CIH,
19 concerning Donald A. Young. And CIH stands for
20 certified industrial hygienist.
21 Q And we have marked a copy of that as Exhibit 3.
22 A Okay.
23 Q And we are going to mark — referenced in the report
24 is an affidavit from Mr. Young, and we are going to
25 mark that as Exhibit 7, an affidavit from Mr. Young

31
1 thats dated June 12th, 2008.
2 A Okay.
3 (Exhibit No. 7 marked
4 for identification.)
5
6 Q Thats just to make the record complete.
7 Now in reviewing the materials that you were
8 provided in preparing your report, can you tell us
9 what you looked — you have listed what you looked at,
10 but what did you do to do your analysis and prepare
11 your report?
12 A Well, basically what I always do is kind of basically
13 the same, indicate what I was sent by whom. And in
14 this case, it was Mr. Madekshos law firm that sent me
15 materials, specifically Nadia — Nadia –
16 MR. MADEKSHO: Nadia.
17 THE WITNESS: And so she was the
18 person that sent me this material. So then I usually
19 initially looked at what information there is with
20 respect to the work history, occupational exposure
21 history, and that sometimes can be in the form of just
22 a statement from the attorneys office, or it can be
23 in the form of response to interrogatories, or it
24 sometimes can be in the form of a deposition that I
25 review.

32
1 So then I would try to summarize that and put this
2 initially in my report. And that would be the first
3 part, which is on Page 1 and goes on to Page 2.
4 Then I would try to get into any other type of
5 information that was present with respect to the
6 persons history that might be related to asbestos.
7 And in this case theres potentially a very unique
8 situation, and that is Mr. Young was stated to have
9 smoked Kent cigarettes between 1954 and 1956, and that
10 is significant in that between 1952 and 1956 Lorillard
11 Company produced a filter called the micronite filter
12 which at that time contained ten milligrams of
13 crocidolite asbestos.
14 And I have looked at the patent and I have read
15 extensively about this, the patent actually requested
16 that the crocidolite asbestos come from Bolivia, South
17 America because of the fact that it was more specific
18 to the size, the diameter they wanted with respect to
19 the particulate matter in cigarette smoke which it was
20 supposed to filter out.
21 The other thing that was significant about that is
22 that the evidence would suggest that they knew, or the
23 company knew that as early as in the 1940s that
24 filters that contained crocidolite asbestos, that the
25 asbestos fibers would end up in the cigarette smoke,

33
1 and that was determined by electron microscopy.
2 And then there was an article, and I dont have my
3 file with me on that, but I think probably the most
4 important article came from the New England Journal of
5 Medicine where they talked about the people that
6 actually produced the filters, and that was in the
7 Boston area, and it was a relatively small company,
8 but that company, 18 and a half percent of those
9 people who made those cigarettes have died from
10 mesothelioma.
11 And then the next, I think, most important factor
12 is the one by Bill Longo where he wrote an article
13 about the fact that asbestos is released from Kent
14 cigarettes. And he got these old Kent cigarettes from
15 people who were, I guess, liked to collect cigarettes
16 and they put them in their freezers. And then he did
17 studies showing the release of fibers.
18 And since then I have seen, you know, I dont
19 know, 15 cases of mesothelioma in which that has been
20 an issue. And the latest one was that one paper that
21 Dr. Dodson and I wrote that you already referred to,
22 so that was part of the information then too.
23 And then the other information, with respect to
24 exposure, a lot of that is summarized in Dr. — I
25 mean, Mr. Ewings CIH report. And some of that

34
1 information is also present in my report.
2 And then after that, I looked at the information
3 that we had with respect to clinical information,
4 talked about the radiology reports which were the
5 primary things that I received.
6 And there was some information about Mr. Young,
7 but not a whole lot. A lot of times I would see more
8 clinical information about him but that doesnt
9 necessarily mean too much. He definitely has
10 mesothelioma. He was found to have what would be
11 radiographically consistent with mesothelioma.
12 They did a PET scan showing that the SUV, which
13 stands for standardized unit value, was greater than
14 three, which is thought to be indicative of cancer in
15 general, so I received that information and I
16 summarized that.
17 And then I looked at the pathology material, and
18 thats on Page 3 and Page 4 of my report, and I
19 summarized what I saw looking at those slides that
20 were sent to me by Mr. Madekshos law firm, indicating
21 that I thought that the cytology specimen and the
22 biopsy specimen of the right pleural mass showed
23 findings characteristic of an epithelial mesothelioma.
24 And then I basically stated that assuming that he
25 was exposed to asbestos that the cause of the

35
1 mesothelioma was asbestos.
2 MR. COTTON: Im sorry to interrupt,
3 Doctor. But for the record, I will move to strike as
4 nonresponsive and lacking foundation.
5 Q (By Mr. Carter) I want to ask a few questions about
6 some of the medical research.
7 Are you aware of epidemiological studies regarding
8 crocidolite exposure causing mesothelioma?
9 A Sure.
10 Q Okay. Can you give us a brief overview of some of the
11 more pertinent studies.
12 A Sure. The first study that was actually published
13 about crocidolite was not an epidemiology study
14 although a lot of people refer to it as one, and that
15 was an article published in the British Journal of
16 Industrial Medicine in 1960. The authors were Chris
17 Wagner, who is a pathologist, Kit Sleggs, he was
18 actually the person that ran the hospital in Kimberly,
19 South Africa which was a TB hospital, and then a guy
20 by the name of Paul Marchand, and he was a young
21 surgeon from Johannesburg. And actually Marchand was
22 actually asked to come over there to evaluate cases
23 that Dr. Wagner was doing autopsies on that did not
24 look like TB but looked like mesothelioma.
25 To make a long story short, in 1960 they published

36
1 an article of 33 cases of mesothelioma that occurred
2 from the northwest Cape Province of South Africa, 32
3 of whom were exposed to asbestos in various ways,
4 crocidolite asbestos specifically. But that was not
5 an epidemiology study, that was a multicase study, but
6 that was the report that brought the worlds attention
7 to the fact that crocidolite asbestos caused
8 mesothelioma, and that was 1960.
9 And in that report actually two other articles are
10 referred to which are important, one was by Dr. Paul
11 Cartier which reported two cases of mesothelioma in
12 Quebec in people that worked in the chrysotile
13 asbestos mines. And then later in 1958 Dr. McCaughey,
14 who is a pathologist now deceased, reported another 11
15 cases of mesothelioma in the Quebec miners.
16 The next thing that was probably important with
17 respect to epidemiology was out of Australia in
18 Wittenoom, and Wittenoom is a city in northwestern
19 Australia where they actually obtained workers from
20 Italy to come over and mine the crocidolite in there.
21 And that one of the things that I received in
22 there was an article about crocidolite in Wittenoom,
23 and Dr. Rogglis response to that, his editorial
24 response, so that was epidemiology, good epidemiology
25 that showed that there was incredible incidence of

37
1 mesothelioma in people exposed to crocidolite
2 asbestos.
3 And then probably the next one which is not so
4 pure, but would be another one, would be again in
5 South Africa where they did start doing some
6 epidemiology studies that clearly showed that
7 mesothelioma was caused by crocidolite.
8 And then Dr. Selikoff followed the insulators and
9 they — some of those were exposed to crocidolite,
10 some of them werent, and they would probably have
11 been exposed more to chrysotile and amosite than
12 crocidolite.
13 And then I think as far as the other thing thats
14 come out which is not epidemiology — well, it is an
15 epidemiology article, and that was by Hodgson and
16 Darnton in 2000 where they looked at the potency of
17 various types of asbestos and concluded that
18 crocidolite was the most tumorigenic on a fiber per
19 fiber basis, and five hundred times more potent than
20 chrysotile in causing mesothelioma, and with respect
21 to amosite, amosite was stated to be about one hundred
22 times more potent than chrysotile in causing
23 mesothelioma. I think thats probably kind of an
24 overview of crocidolite.
25 Q Are you familiar with any studies or articles where

38
1 they talk about relatively low levels of exposure for
2 people who didnt work hands-on with crocidolite
3 products?
4 A Oh, sure. The Wagner article in 1960, there were
5 several people that basically had never ever touched
6 crocidolite asbestos, or some accountants that were
7 along the trail that went from the mines down to the
8 railroad and they developed mesothelioma, and there
9 was some children that later grew up and who played on
10 the tailings.
11 And then in this article here about Wittenoom,
12 there was a lot of data on people who lived in this
13 area who developed mesothelioma who never, again,
14 worked in the mines. And then the other place that –
15 MR. LABOON: Was that the Chest
16 article?
17 THE WITNESS: Yes, the Chest
18 article.
19 I forgot one place, in the west bank of the
20 Mississippi River in Louisiana, they — the JM plant
21 in that area, they used crocidolite asbestos. And
22 many of the people actually used tailings from there
23 to make sidewalks, driveways et cetera. Theres an
24 increased incidence of mesothelioma in those people.
25 Q (By Mr. Carter) Now you mentioned earlier in your

39
1 testimony that you have seen, I believe, approximately
2 15 cases involving exposure to Kent cigarettes; is
3 that correct?
4 MR. COTTON: Object to form. Lack
5 of foundation.
6 Q (By Mr. Carter) Have you published any of the
7 findings or research that you have done regarding
8 those cases?
9 A One case in detail that was the most recent case that
10 we looked at and Dr. Roggli, in our abstract on
11 mesothelioma in women, I think we referred to one case
12 in there, maybe more than one case of a mesothelioma
13 occurring in a woman who smoked Kent cigarettes in the
14 time period where they contained a micronite filter
15 that had ten milligrams of crocidolite asbestos per
16 filter.
17 Q And the article that you are referring to, is that the
18 one thats been marked as Exhibit 4?
19 A Yes, thats it.
20 Q Okay. Now I notice in that particular article there
21 was a fiber burden analysis; is that correct?
22 A Yes.
23 Q Would you explain to us what that is.
24 A Sure. Asbestos is quantitated in tissue in several
25 different ways. You can quantitate it to a certain

40
1 degree by looking at tissue sections and seeing
2 asbestos bodies, but the best way to determine the
3 concentration of asbestos in a tissue specimen is by
4 digestion analysis.
5 And most of the digestion analyses are performed
6 on lung tissue, but you can do it on anything. The
7 thing that Dr. Dodson and I are doing it right now on
8 the pleura. What you do is a take a sample of tissue,
9 like lung tissue, and usually digest it in bleach of
10 any type which has a chemical in it called sodium
11 hypochlorite, which digests the organic tissue which
12 is basically the lung tissue, but the inorganic
13 material like asbestos is not digestible.
14 So what you do is you digest the lung tissue away,
15 and then you very carefully decant off the bleach and
16 then you take the sediment and extract it in
17 chloroform and ethyl alcohol.
18 And to make a long story short is that what you do
19 is you try to get rid of as much of the carbonaceous
20 material present, and then you would take the sediment
21 at the bottom of the test tube, and you would again
22 suspend that in 95 percent ethanol.
23 And then once it was suspended you would put it
24 through a micropore, or some type of a filter that has
25 a pore size smaller than the asbestos bodies and

41
1 asbestos fibers. And you could look at the filter
2 itself, mounted on a glass slide, for the presence of
3 asbestos bodies. An asbestos body by definition is an
4 asbestos fiber coated with iron and protein. And you
5 could look for the number of asbestos bodies in the
6 tissue and then you could also do fiber analysis.
7 And the way the fiber analysis is done is that
8 very small parts of the filter are put on very small
9 grids, that usually are copper grids, and you would
10 put them in an electron microscope. And the favored
11 tool at this point in time is a transmission electron
12 microscope.
13 And you would look at the filter preparations, and
14 you would see fibers. And fibers by definition are
15 structures that have parallel sides and the length is
16 at least three times longer than the width. And you
17 can actually focus the beam from the electron
18 microscope onto the fiber and have this structure
19 called an energy dispersive x-ray analysis machine,
20 and you could actually determine the elemental
21 composition of a fiber.
22 And you could also do another thing called an
23 x-ray diffraction to see what the angles were of
24 certain of the elements in the structure, and you
25 could determine whether the structure was or was not

42
1 asbestos. And if it was asbestos, you could determine
2 what the type of asbestos was.
3 So by doing this very carefully, and doing some
4 mathematical calculations, you could determine what
5 the concentration of asbestos bodies and asbestos
6 fibers was in the lung tissue, or any other type of
7 tissue you wanted to look at.
8 Dr. Dodson and I wrote a paper in 2000 on asbestos
9 in fat tissue in the abdominal cavity, trying to
10 figure out how much asbestos was down there, where
11 peritoneal mesothelioma starts.
12 So thats what asbestos digestion analysis is.
13 And we are doing it right now on pleural tissue to –
14 very interested in trying to figure out how much
15 asbestos it really takes to cause mesothelioma.
16 Q Can you estimate for us how many overall digestion
17 studies on individual patients you have done over the
18 years?
19 A Oh, boy, for asbestos bodies, I would say probably a
20 thousand, maybe more. For asbestos fibers it would be
21 less than that because asbestos fibers are much more
22 time consuming. I dont know, we have probably done
23 500 and maybe more, maybe a couple thousand if you
24 look at all of the ones we have done for any reason.
25 Q And looking over the digestion studies, have you come

43
1 to a recognition of what the more predominant fiber
2 types that show up in your digestion studies are?
3 A Sure. We published a very detailed paper in 1997 in
4 Ultrastructural Pathology which was asbestos fiber
5 analysis of 55 cases of mesothelioma, specifically in
6 lung tissue, and that, I think, is the most detailed
7 paper ever written about that issue.
8 And with respect to what you find in people in the
9 United States, at least with the disease of
10 mesothelioma, the most common fiber you find is
11 amosite. And they were present in 98 percent of the
12 lung tissue specimens that we identified and were also
13 present in the highest number.
14 The next most common fiber would probably be
15 tremolite. Tremolite, chrysotile, and crocidolite
16 would all be in that fairly similar — chrysotile,
17 especially the short fibers, dont stay around in the
18 lung very long. They have very short half-lives so a
19 lot of times you will not find any chrysotile in the
20 lung tissue that you know the people were exposed to
21 chrysotile, and thats just because it has a half-life
22 of 90 to 120 days, which means every 90 to 120 days
23 half of it is removed.
24 So its hard to know what digestion analysis with
25 respect to chrysotile means. But with respect to

44
1 amosite, crocidolite, and tremolite, you are pretty
2 certain what kind of concentrations you see in those
3 instances.
4 Theres a couple other new asbestos, winchite and
5 ricterite are two new amphiboles that are being
6 identified in the vermiculite samples in Libby,
7 Montana. And I dont think that has any bearing in
8 this case, but thats another couple of asbestos fiber
9 types that are probably capable of causing
10 mesothelioma.
11 Q Okay. When you look at the different fiber types you
12 have seen, how would you characterize the appearance
13 of crocidolite in terms of frequency to the ones that
14 you see when you do your digestions?
15 A I would say its probably about fourth on the ladder.
16 But when Dr. Roggli did his analysis in 1993 and its
17 published in Chest, if you went by the number of
18 fibers actually, amosite was first, tremolite was
19 second, crocidolite and chrysotile were third and
20 fourth and were about equal.
21 But we found in about 40 percent of the cases that
22 we have analyzed lung tissue on that it contained
23 crocidolite. And thats about the same as tremolite
24 and chrysotile.
25 Q Okay. And going to your article that you wrote with

45
1 Dr. Dodson in 2006, can you summarize the findings you
2 found — that you wrote about with regards to the
3 fiber burden analysis from this woman who was exposed
4 to crocidolite from the Kent cigarettes?
5 MR. COTTON: Objection. Lack of
6 foundation. Relevance.
7 THE WITNESS: I cant remember all
8 the exact numbers, but the basic idea was that this
9 woman had mesothelioma. The only information that we
10 could find of any exposure she had was from smoking
11 Kent cigarettes. Her husband was an engineer, as I
12 recall, and we — the person that sent us the case
13 actually questioned this guy over and over and over
14 again about what he had done, and was there any
15 possibility that he was exposed elsewhere, blah, blah,
16 blah, and it always came back negative.
17 So we did the fiber analysis on lung tissue and
18 lymph node tissue, and we found elevated numbers of
19 asbestos fibers in her — crocidolite asbestos fibers
20 in her lung tissue and her lymph node tissue. And
21 actually the tissue had also been examined by Dr.
22 Roggli by SEM who didnt find basically any
23 crocidolite and thought that this was maybe an
24 idiopathic mesothelioma.
25 But we did find elevated numbers of crocidolite

46
1 fibers, and thought that based on those studies this
2 was a case of crocidolite-induced mesothelioma that
3 based on the information we had probably came from the
4 Kent cigarettes.
5 MR. COTTON: Move to strike.
6 Hearsay.
7 MR. CARTER: Excuse me?
8 MR. COTTON: Move to strike.
9 Hearsay.
10 Q (By Mr. Carter) Okay. Now the article that you wrote
11 with Dr. Dodson in 2006 that we were just talking
12 about, was that article peer reviewed?
13 A Absolutely. Sure.
14 Q Can you explain to us what peer review means.
15 A Sure. If you have an article that you think is worthy
16 of publication, or some type of information in the
17 medical area that you think is important to be written
18 about, you write a manuscript and then you send it to
19 a journal that you think it would be most appropriate
20 to have it published in.
21 And in the case of a lot of the stuff that I
22 submitted has to do with things like asbestos and lung
23 disease, and you might publish something in Human
24 Pathology, American Journal of Surgical Pathology,
25 Chest, American Review of Respiratory Disease and

47
1 Critical Care Medicine, and a bunch of other journals.
2 And what they do is they have an editor and the
3 editor usually tries to figure out what the article is
4 about. And then the editor will send the manuscript
5 to two or sometimes more than two individuals to
6 critique it. And those individuals, who are supposed
7 to be experts in the area that the article deals with,
8 looks at it. They look at whats the component of
9 the — what its all about. They read it. They make
10 suggestions. They ask questions.
11 And that information then is usually sent back to
12 the authors and then they respond to those critiques.
13 And then if they respond and they have a good rating,
14 good enough rating, then the article is basically
15 published.
16 And the idea is that you have your peers who are
17 experts in the area that the article deals with that
18 try to critique it to make sure that its not
19 something that should not be published.
20 And things that, you know, you might not publish
21 are things that are already published, things that
22 are — there is somehow questions about the
23 methodology, or just basically lies in the article
24 about certain things. So thats what the peer
25 reviewers try to do. They try to weed out the bad

48
1 articles, and then hopefully the articles that get
2 published are the good ones.
3 But even in the good ones you can get controversy.
4 Like the New England Journal of Medicine, for example,
5 just recently where they had the thing about doing
6 spiral CT scans as a test to prevent the — to detect
7 early lung cancer. That funding all came from the
8 tobacco companies.
9 Q Now in the 15 or 10 cases that you have been involved
10 in where Kent cigarette exposure was at issue, can you
11 approximate for us how much of those you did lung
12 digestion or tissue digestion?
13 MR. COTTON: Objection. Lack of
14 foundation. Relevance.
15 THE WITNESS: I dont think I could.
16 I would have to go back and look. I know some of them
17 we did, and some of them we never had any tissue. To
18 give you a factual answer I would have to go back and
19 look. I really dont know for sure.
20 Q (By Mr. Carter) And in order to do tissue digestion,
21 its not something that can be done while the patient
22 is alive; is that correct?
23 A You would never want to — if you got a sample of lung
24 tissue while the patient is alive the answer is yes,
25 but you would never go back and get a biopsy of a

49
1 person thats alive just to do digestion on.
2 Although when our surgeons frequently do video
3 assisted thoracoscopic surgical biopsies for
4 mesothelioma, at least over in Bremerton and I think a
5 few other places, they will always take a sample of
6 lung tissue for asbestos digestion analysis, but
7 thats usually not done.
8 And there would never be a reason that once you
9 had made a diagnosis of mesothelioma there would never
10 be a reason to reoperate on that patient to get a
11 sample of lung tissue to do a digestion analysis. You
12 could suggest it maybe be done at the time of autopsy,
13 and that would be a reasonable thing to do, but never
14 when a patient is alive.
15 Q Okay. Now two of the exhibits we have marked are two
16 cases from the Supreme Court of Texas. The
17 Borg-Warner case versus Flores and the Georgia-Pacific
18 versus Stephens case.
19 Are you familiar with those cases, Doctor?
20 A Yes, I am.
21 Q Okay. And have you — in doing your analysis and
22 preparing your opinions for cases involving litigation
23 in Texas, do you take into consideration the factors
24 that the courts have announced in those cases?
25 A Absolutely.

50
1 Q So in giving your opinions today, are you
2 incorporating the factors that were announced in those
3 two particular cases?
4 MR. COTTON: Objection. Leading.
5 Lack of foundation.
6 THE WITNESS: Yes, I am certainly
7 taking those into account. The answer to your
8 question is yes, I certainly take those into account,
9 but there is other issues or other things that come
10 up, for example, with respect to causation of
11 asbestos — I mean, causation of mesothelioma by
12 asbestos.
13 The document that I basically swear by is the
14 Helsinki Consensus Report, and I would take that over
15 anything that has been published in Texas, but with
16 the understanding, and I know Judge Davidson very well
17 and I really like Judge Davidson and I respect him,
18 and I would say in a case like this, for example, if
19 there was a sample of tissue available it would be
20 very important that an asbestos digestion analysis be
21 done. But I dont think there would ever be a reason
22 when a person is alive to get that done, and I think
23 you would have to wait until the person basically dies
24 before you could do that.
25 But I really do take into — at least my

51
1 understanding of what Judge Davidson wants with
2 respect to these cases, I very strongly consider that.
3 Q (By Mr. Carter) You mentioned the Helsinki Consensus.
4 Can you explain what that is.
5 A Sure. In 1997 there were 19 scientists that met in
6 Helsinki, Finland to evaluate or to discuss
7 asbestos-related disease and discuss the criteria of
8 diagnosing these diseases, and also the criteria for
9 attributing a certain disease to a certain substance
10 like asbestos.
11 And the chairman of that group was Dr. Douglas W.
12 Henderson, who is a pathologist from Australia, a very
13 close friend of mine. Dr. Roggli was also a member of
14 that group. The group that were there at that time
15 came from eight different countries. None of them at
16 that time were producing any asbestos-containing
17 products.
18 Together these group of people have published over
19 a thousand articles that dealt with asbestos-related
20 diseases. And what they did was talk about
21 asbestos-related diseases and the criteria that one
22 could use to attribute asbestos to.
23 Asbestos is very definite. They state, number
24 one, that all types of asbestos cause mesothelioma,
25 amosite, crocidolite, and chrysotile.

52
1 They state that chrysotile is not as potent as
2 amosite and crocidolite in causing mesothelioma.
3 They state that you can attribute mesothelioma
4 causation to asbestos in several different ways. One
5 way would be if you had a marker of asbestos exposure
6 such as hyaline pleural plaques or asbestosis.
7 In this case, there was one thing in there that
8 was confusing to me and that was, did this — maybe
9 this is not the right case. Let me just see. No, I
10 dont think this is the case.
11 Plaques or asbestosis, if you have either one of
12 those radiographically you could attribute
13 mesothelioma to asbestos.
14 If you have a sample of lung tissue in which you
15 found even one asbestos body in an iron stain or H&E
16 stain section, that would also be by itself acceptable
17 to attribute causation to mesothelioma.
18 In this case, I dont think there was ever any
19 lung tissue taken. There was a fine needle aspiration
20 biopsy of the mass, and there was a fine needle — an
21 actual tissue biopsy of the mass, but never a sample
22 of lung tissue, so there is no lung tissue to evaluate
23 for asbestos.
24 With respect to how much you could potentially
25 find in tumor tissue, thats an ongoing thing.

53
1 Theres been some studies that have been done by Dr.
2 Suzuki and Dr. Ewing who talked about that but that
3 wasnt done in this case. So we have those two ways
4 to attribute.
5 The next would be is that — and this is, I think,
6 the most important, if you have a reliable history of
7 exposure to asbestos, that by itself is enough to
8 attribute causation of a mesothelioma to asbestos.
9 And it has to be reliable.
10 And I guess the word reliable is somewhat
11 ambiguous, but basically its trying to state that
12 most cases of mesothelioma are caused by asbestos, 90
13 percent in the United States and maybe even more, and
14 that if you have this history of exposure thats
15 reliable, then they would say that you could attribute
16 causation to a mesothelioma by asbestos.
17 Q Okay. And in Mr. Youngs case, do you have the
18 criteria — well, do you have an opinion regarding
19 whether or not his malignant mesothelioma was in fact
20 caused by asbestos exposure?
21 A Based on the information I have, I would say it was,
22 yes.
23 Q In this case, with the materials that you were
24 provided, do you believe that you had a reliable
25 history of exposure to asbestos?

54
1 MR. COTTON: Objection. Form.
2 THE WITNESS: I would say yes. And
3 this was the case where there was the issue of
4 plaques, and the third page of my report I stated
5 there was a statement that, In the setting of other
6 pleural plaques and calcification within the pleura
7 needs to arise the possibility of mesothelioma.
8 And that was a quote, and that doesnt — not a
9 very well — somewhat ambiguous to me, but I was
10 thinking that somebody needs to take a look at those
11 radiographs again to see if there are plaques there.
12 But ignoring that, I would say I think there is a
13 reliable history of exposure to asbestos. One would
14 be through smoking of the Kent cigarettes, and the
15 other would be through the other information that was
16 given with respect to Mr. Youngs exposures.
17 MR. COTTON: Move to strike as
18 nonresponsive.
19 Q (By Mr. Carter) Now with regard to Kent cigarettes
20 themselves, can you offer an opinion as to whether the
21 asbestos dose to which Mr. Young was exposed from the
22 Kent cigarettes was sufficient to cause the malignant
23 mesothelioma?
24 MR. COTTON: Objection. Form. Lack
25 of foundation.

55
1 THE WITNESS: I would say I think it
2 is, but I dont know if theres ever been any criteria
3 published for exactly how much you need. And thats
4 getting to this issue of really how much asbestos it
5 takes to cause mesothelioma. If you look — and I
6 have this with me.
7 If you look at the Hodgson and Darnton article,
8 and this was an article that was published in Annals
9 of Occupational Hygiene in 2000, Volume 44, Pages 565
10 to 601, and its basically an epidemiology type
11 article that was — Hodgson and Darnton are
12 epidemiologist statisticians.
13 But on Table 11, which is on Page 585, they are
14 talking about concentrations of asbestos in fiber/cc
15 years number, and what would result from these
16 concentrations. And they state, for example, for
17 crocidolite at 0.01 fiber/ml years, which is an
18 incredibly low concentration, that there would be 20
19 deaths of mesothelioma per 100,000 exposed.
20 And the highest arguable estimate, and again this
21 would be the statisticians speaking, one hundred, and
22 the lowest would be two, so even at that low of dose,
23 and then exactly, how much is that dose?
24 And with respect to fibers, and there is one –
25 maybe one article that could at least maybe partially

56
1 answer that, but I dont know.
2 I was going to ask Dr. Lemen about that. And this
3 is the article right here by Rodelsperger et al., and
4 its titled, Asbestos in man-made vitreous fibers as
5 risk factors for diffuse malignant mesothelioma,
6 results from a German hospital-based case-control
7 study.
8 And in this article on Page 272 they state this,
9 they state that, Regression analysis revealed that a
10 fiber dose of one fiber year roughly corresponds to a
11 concentration of 80,000 amphibole fibers longer than
12 five micrometers per gram of dry lung tissue.
13 And then if you think — so you say thats one
14 fiber/cc year. If you go to ten, it would be only
15 8,000 fibers that would be necessary to produce that.
16 I mean, thats really a tiny dose. And that to me
17 also would make me think that it doesnt take very
18 much crocidolite asbestos to cause mesothelioma. And
19 actually according to this, it doesnt take very much
20 amphibole asbestos of any type to cause mesothelioma.
21 Q Now Im almost finished, and I just want to — I am
22 going to present you with a hypothetical.
23 A All right.
24 Q Okay. And, Dr. Hammar, I want you to assume the
25 following will be the evidence in the case. I want

57
1 you to assume Mr. Young smoked Kent cigarettes from
2 April 1954 through March 1956 at a rate of about five
3 Kent cigarettes per day, and ten Kent cigarettes per
4 weekend day, and those cigarettes contained
5 crocidolite in their filters which was released when
6 he inhaled.
7 I want you to also assume that he smoked
8 approximately 4,630 crocidolite-containing Kent
9 cigarettes during this period.
10 I want you to assume that in the first two puffs
11 of these cigarettes Mr. Young inhaled 83 million
12 crocidolite filters greater than five –
13 A Micrometers.
14 Q — micrometers. And further assume that he inhaled a
15 total of approximately 790 million total crocidolite
16 fibers during the first two puffs of these Kent
17 cigarettes.
18 A Okay.
19 Q And all this comes from the report of Mr. Ewing.
20 Second, I want you to assume that Mr. Young had
21 possible exposure during renovations in 1964 at Travis
22 Air Force Base to asbestos fibers that were on the
23 clothing of the workers from pipe insulation that they
24 were removing.
25 And I want you to assume that in the 1990s Mr.

58
1 Young was in the vicinity of asbestos floor tile
2 during its removal for approximately one or two days.
3 And fourth, I want you to assume that between 1989
4 and 2004 Mr. Young was in the vicinity of various
5 boilers at Fort Sam Houston, and while he was in the
6 vicinity of these boilers the boilers were being
7 repaired or maintained in a way that would liberate
8 asbestos fibers from gasket material and/or insulation
9 material.
10 Further assume that at times he was exposed to and
11 inhaled asbestos airborne fibers from materials that
12 were being swept up during the cleaning process
13 following repair and maintenance of the boilers.
14 Now considering these exposures, do you have an
15 opinion, Dr. Hammar, whether or not this exposure was
16 sufficient to have caused Mr. Youngs malignant
17 mesothelioma?
18 MR. LABOON: Objection. Form.
19 MR. COTTON: Lack of foundation.
20 THE WITNESS: I do have an opinion,
21 yes.
22 Q (By Mr. Carter) What is that?
23 A That it was.
24 Q Now going back specifically to the Kent exposure and
25 the hypothetical, do you remember the numbers and the

59
1 dates of exposure that are all laid out in Mr. Ewings
2 report, given if that is the evidence in this case and
3 the levels of exposures that are stated in the report
4 of Mr. Ewing, would that exposure be sufficient to
5 have caused Mr. Youngs malignant mesothelioma?
6 MR. COTTON: Objection. Form. Lack
7 of foundation.
8 THE WITNESS: In my opinion, yes.
9 Q (By Mr. Carter) Have you stated your opinions to a
10 reasonable degree of medical certainty?
11 A Yes.
12 Q And in forming those opinions and stating them to a
13 reasonable degree of medical certainty, have you also
14 incorporated the legal standards that we discussed
15 that are currently in application in Texas?
16 MR. COTTON: Objection. Form. Lack
17 of foundation. Calls for a legal conclusion that the
18 witness is not qualified to give.
19 THE WITNESS: Yes.
20 MR. CARTER: Okay. Now at this
21 point, I would like to take just a couple-minute
22 break. I may be actually done.
23 THE WITNESS: Okay.
24 (Recess 11:41 a.m. to
25 11:51 a.m.)

60
1
2 (Exhibit No. 8 marked
3 for identification.)
4
5 Q (By Mr. Carter) Dr. Hammar, during the break you had
6 an opportunity to review the affidavit of Mr. Young
7 that was dated June 12th, 2008 and marked as Exhibit
8 7; is that correct?
9 A Yes.
10 Q Does that in any way affect the opinions that you have
11 rendered?
12 A No.
13 Q Okay. Then final, just for the record, we have
14 attached as Exhibit 8, Asbestos-associated diseases
15 in a cohort of cigarette filter workers, what has
16 been referred to as the Talcott study?
17 A Right.
18 MR. CARTER: At this point,
19 plaintiffs tender the witness.
20
21
22 EXAMINATION
23 BY MR. LABOON:
24 Q Dr. Hammar, John LaBoon. Its good to see you as
25 usual today.

61
1 A Same here.
2 Q A few questions for you today, and I promise that that
3 is actually true.
4 First of all, its my understanding your textbook
5 has come out and that you dont have a copy of it yet;
6 is that correct?
7 A That is correct.
8 Q Is there anything in your textbook concerning what
9 would be quote/unquote new on chrysotile and causation
10 of mesothelioma that we need to discuss today?
11 A I dont think so.
12 Q Okay. Can I rely on your testimony from the
13 chrysotile hearings as we have called them before in
14 front of Judge Davidson in 2005?
15 A Yes.
16 Q And you and I discussed chrysotile causation in the
17 Beedle (phonetic) case a couple months ago?
18 A We did.
19 Q That was an unusual case in that it was a localized
20 meso, but generally your general causation opinions
21 concerning chrysotile, have they changed from that?
22 A No.
23 Q Okay. And you understand Im asking you that to save
24 everybody some time?
25 A I understand that.

62
1 Q Okay. And there was actually two transcripts taken in
2 Beedle in approximately May of this year?
3 A That is correct.
4 Q Okay. And we can rely on your testimony in the Free
5 case where you testified in front of the judge
6 generally in terms of causation issues?
7 A In general, yes.
8 Q Okay. Is it still your opinion as of today that at
9 least for — maybe I need to break it down today, but
10 generally is it chrysotile causation at .1 fiber
11 years?
12 A Right.
13 Q A substantial contributing factor?
14 A Right.
15 Q For crocidolite it sounds like you may have a
16 different opinion?
17 A I dont know if crocidolite is any different or not,
18 but certainly when Nicholson did that register, I
19 mean, when he did that in 1986 and 1994 it was all
20 types of asbestos. He didnt really try to separate
21 it, but Hodgson and Darnton have.
22 Q Okay. And sounds like Rodelsperger?
23 A Rodelsperger is confusing because he talks only about
24 amphiboles, but if you look at the people that he was
25 talking about they had to have mixed exposures.

63
1 Q Okay. Have you reviewed any of the depositions in
2 this case other than Mr. Youngs, or did you read Mr.
3 Youngs?
4 A I have not reviewed Mr. Youngs. I saw — the
5 information I was provided was by Mr. Madekshos law
6 firm.
7 Q Have you seen any evidence in this case that Mr. Young
8 was exposed or potentially exposed to asbestos by any
9 work with or around a Garlock gasket?
10 A Not in the information I received, no.
11 Q Okay. Have you reviewed Mr. Ewings affidavit?
12 A I have not.
13 Q Im sorry. I mean, Mr. Ewings report.
14 A Oh, yes, I have done that.
15 Q Can you turn to Page 6, please.
16 A Yes.
17 Q In fact, you were one of the doctors in the Stephens
18 case; is that correct?
19 A That is correct, yes.
20 Q We are talking about the Georgia-Pacific versus
21 Stephens case?
22 A Yes.
23 Q You and I have discussed the Stephens case as well?
24 A We have.
25 Q And you understand now, at least in Texas, and you may

64
1 agree or disagree, that a dose is required?
2 A I understand that, and I understand that very well.
3 Q Okay. And you understand that Mr. Ewing at this
4 point — and you usually rely upon an industrial
5 hygienist unless its an obvious case — if we were
6 talking about a Bremerton shipyard worker that was an
7 insulator for 30 years, no one is going to require you
8 to calculate a dose?
9 A I dont think so.
10 Q But in this case because of Mr. — because of the time
11 frame and maybe some other issues, at least as to some
12 of Mr. Youngs exposures, Mr. Ewing was unable to
13 calculate a dose as to what we call the boiler work
14 between 89 and 2003, you understand that?
15 A I do understand that, yes.
16 Q And one of the reasons that may be true first of all,
17 as you know, asbestos was phased out –
18 A Right, by 1978, around in there, 75.
19 Q Thermal insulation products –
20 MR. MADEKSHO: Object to the form of
21 that last question.
22 Q (By Mr. LaBoon) Thermal insulation products were
23 banned as of 1975; is that correct?
24 A Yes.
25 Q And there are certainly — well, asbestos substitutes,

65
1 at least as to gasket material, and Im just worried
2 about gasket material, were available by the 1989 time
3 period?
4 A Yes.
5 Q Have you had the opportunity to see the U.S. Mil Specs
6 for this time period –
7 A I havent seen those.
8 Q Luckily, just in time.
9 A Okay.
10 Q I will show you Page 6. This is a Mil Spec dated
11 September 1990, and its 21 pages, but I only printed
12 the first six. And you can look at the front date.
13 And you know what Mil Specs are based on all the
14 Bremerton cases you have seen, correct?
15 A Yes.
16 Q Is that dated September 1990?
17 A It is.
18 Q Okay.
19 A September 6th, 1990.
20 Q And on Page 6 of that document it states that
21 asbestos-containing gaskets will not be used in
22 boilers on military — for military applications,
23 correct?
24 A Right.
25 Q Okay. Based on that information and the things you

66
1 reviewed today, can you offer any opinions that any –
2 that Mr. Youngs mesothelioma was caused in any part
3 by any exposure to any gasket material?
4 MR. MADEKSHO: Object to form.
5 THE WITNESS: No.
6 Q (By Mr. LaBoon) Have you understood my questions?
7 A Yes.
8 Q You know what, I do have a couple general questions I
9 wanted to ask you.
10 Why do you think Bremerton is different — this is
11 the highest incidence rate of mesothelioma?
12 A Yes.
13 Q Do you have an opinion, this is my own curiosity, why
14 here versus some other shipyard?
15 A I think mainly because the — its the population of
16 the county. There is only 300,000, and I think also
17 the people that have worked in the shipyard in
18 Bremerton are people that have stayed around in the
19 county and not gone elsewhere.
20 Q Less transient?
21 A Yes.
22 Q I thought that might be the answer.
23 A Very good blue collar working town. A lot of people
24 worked at the shipyard and a lot of people still live
25 there who worked at the shipyard.

67
1 Q Have you understood my questions?
2 A Yes.
3 Q Have I been courteous?
4 A Yes.
5 MR. LABOON: Too short.
6 THE WITNESS: Yeah, it was short.
7
8
9 EXAMINATION
10 BY MR. ROYER:
11 Q Dr. Hammar, Ken Royer. I represent Ajax Boiler, Inc.,
12 and I have some questions for you.
13 A Sure.
14 Q You talked with John about the plaintiffs deposition.
15 Have you reviewed the deposition testimony of any
16 co-worker in this case?
17 A I have not.
18 Q Would you agree with me that asbestos encapsulated
19 within a substrate which remains in place during a
20 repair operation does not lead to any asbestos
21 exposure?
22 MR. MADEKSHO: Object to form.
23 THE WITNESS: Yes.
24 Q (By Mr. Royer) Have you reviewed any documents
25 concerning vermiculite contained within refractory

68
1 cement that might have been used in boilers in this
2 case?
3 A No.
4 MR. MADEKSHO: Object to form.
5 Q (By Mr. Royer) Have you formed any opinions in this
6 case regarding vermiculite that may possibly have been
7 contained in refractory cement?
8 A No.
9 MR. MADEKSHO: Can I just state for
10 the record these are — this is exactly what I was
11 talking about in my preliminary statement. What I
12 dont want to do is clutter up the record with my
13 objections.
14 Can we have an understanding that is the case?
15 MR. ROYER: Yeah, I understand, and
16 you –
17 MR. MADEKSHO: And Tina also, I
18 think –
19 MR. ROYER: And you are aware that
20 we have e-mail exchanges going back and forth, and I
21 have produced my documents to you, the ones that I
22 have?
23 MR. MADEKSHO: Right.
24 MR. ROYER: So thats kind of where
25 Im at right now, just so we are clear.

69
1 MR. MADEKSHO: I dont want to
2 involve what would be motion practice in a deposition
3 transcript, and so I just want to state that for the
4 record.
5 Please proceed with that understanding.
6 Q (By Mr. Royer) Sure. Dr. Hammar, would you agree
7 with me that tremolite is found in two naturally
8 occurring forms, asbestos form and nonasbestos form?
9 A Yes.
10 Q Would you agree with me that nonasbestos form
11 tremolite is a nonfibrous material?
12 A Yes.
13 Q Would you agree with me that nonasbestos form
14 tremolite does not cause mesothelioma?
15 A Yes.
16 Q Have you understood my questions?
17 A Yes.
18 MR. ROYER: Thats all I have.
19 Thank you.
20 THE WITNESS: Okay.
21 MR. LABOON: Hes not been
22 courteous.
23 MR. ROYER: Oh, have I been
24 courteous?
25 THE WITNESS: You have been

70
1 courteous.
2 MR. ROYER: Great. Thank you.
3
4
5 EXAMINATION
6 BY MS. HANSARD:
7 Q My name is Tina Hansard. Can you hear me?
8 A I can.
9 Q I represent a company called Rheem Manufacturing
10 Company. Have you ever heard of them?
11 A No.
12 Q How about a company called Ruud or Ruud, R-u-u-d?
13 A No.
14 Q Have you reviewed any documents in this case regarding
15 either of those companies, Rheem or Ruud?
16 A No.
17 Q Have you formed any opinions in this case regarding
18 Rheem or Ruud?
19 A No.
20 Q Have you reviewed any evidence that Mr. Young was
21 exposed or potentially exposed to asbestos from a Ruud
22 furnace?
23 A No.
24 Q Have you reviewed any evidence that Mr. Young was
25 potentially exposed to asbestos from any furnace?

71
1 A No.
2 Q And just to be clear, you cannot offer any opinion
3 that Mr. Youngs mesothelioma was in any way caused by
4 exposure to asbestos from a Ruud furnace; is that
5 correct?
6 A That is correct.
7 Q Have I been courteous to you?
8 A You have been courteous.
9 Q You understood all my questions?
10 A I have, yes.
11 MS. HANSARD: Thats all I have. I
12 am going to pass the witness.
13 MR. CARTER: Anybody on the phone
14 have any questions before we take a break?
15 Having heard nothing, how long for lunch?
16 THE WITNESS: Be back at one?
17 MR. CARTER: Okay. See everybody at
18 one.
19 (Exhibit No. 9 marked
20 for identification.)
21
22 (Lunch recess 12:04 p.m. to
23 1:04 p.m.)
24
25

72
1 EXAMINATION
2 BY MR. COTTON:
3 Q Doctor, my name is Chris Cotton and I introduced
4 myself to you earlier today. I represent Lorillard
5 Tobacco Company in this case.
6 A Right.
7 Q You have been deposed a number of times in the past;
8 is that right?
9 A Yes.
10 Q So I wont go through the long list of suggestions for
11 depositions, other than to say if you have any trouble
12 hearing or understanding any of my questions, will you
13 let me know?
14 A Sure.
15 Q And you understand that we are here today for your
16 deposition in the Donald Young case in Texas?
17 A I understand that, yes.
18 Q Doctor, if you would please, can you tell me a little
19 bit about what, if anything, you did to prepare for
20 todays deposition?
21 A I didnt know who was going to come to this deposition
22 so what I did was read over my report, and then I did
23 receive this document here from Mr. Carter. No, I
24 guess it was from Chris, which had some information in
25 it including the Reed report, which has to do with

73
1 Wittenoom and the asbestos problems they had there and
2 Dr. Rogglis editorial concerning that.
3 And then I had the certified industrial hygiene
4 report of Mr. Ewing, so I read that. Read the
5 document from Borg-Warner versus the Flores case and
6 then the Stephens case, and thats basically what I
7 did.
8 Q Okay. So if I may recap, you read your expert report
9 in this case right?
10 A Yes.
11 Q And you read the packet of materials that you just
12 described as well as two court opinions; is that
13 right?
14 A That is correct.
15 Q In preparation for your deposition today, Doctor, did
16 you review anything else?
17 A No.
18 Q If I could, I would like to mark the package of
19 materials that you just described as an exhibit for
20 this deposition.
21 A Sure.
22 (Exhibit No. 10 marked
23 for identification.)
24
25 Q Thank you.

74
1 A Those are my notations at the bottom, and I dont
2 think those are of any significance because the same
3 information was in the report by Mr. Ewing.
4 Q So the record is clear then, Doctor, I am going to
5 hand to you whats now been marked as Exhibit 10 and
6 this is the package of materials that you were
7 describing earlier, right?
8 A Yes.
9 Q And, Im sorry. Explain to me the handwritten notes
10 that are seen on the first page.
11 A When Mr. Carter was giving the hypothetical, I was
12 scribbling down some numbers, but I realized what he
13 was saying was in the report of Mr. Ewing and then I
14 stopped writing them.
15 Q You are referring to the hypothetical Mr. Carter was
16 asking you earlier today during your examination?
17 A That is correct.
18 Q Okay. And, Doctor, when did you receive the documents
19 that have been marked as Exhibit No. 10?
20 A Let me see. The first time I saw them was this
21 morning. I dont know if I see an exact date on this,
22 but it says the materials for my deposition on June
23 26th, 2008 which is today obviously. I first saw
24 those not today, but actually yesterday when my
25 assistant Michaele Stoll stated that those were there

75
1 for me to review, which I did, so it could have been
2 yesterday or the day before I suspect.
3 Q Okay. And thats when you first received them; is
4 that right?
5 A Yes.
6 Q And you first reviewed them today?
7 A This morning.
8 Q I havent had a chance to look at them yet, Doctor, so
9 for a moment I was going to flip through them if I
10 may?
11 A Sure. Go ahead.
12 Q Now, Doctor, if I may, I would like to ask you a few
13 questions about the documents that have been marked
14 collectively as Exhibit No. 10.
15 A Sure.
16 Q I flipped through them very briefly and as you
17 described its a collection of different materials,
18 and the first page of Exhibit 10 I see what appears to
19 be a transmittal note from Mr. Madeksho.
20 A Uh-huh.
21 Q And following that page it appears to be a summary of
22 Borg-Warner versus Flores?
23 A Yes.
24 Q And do you know –
25 MR. MADEKSHO: Objection. Form.

76
1 MR. COTTON: Whats the basis of the
2 objection?
3 MR. MADEKSHO: Its an excerpt not a
4 summary. Its verbatim from the case.
5 Q (By Mr. Cotton) Okay. Doctor, did you ask for this
6 excerpt from the Borg-Warner case?
7 A No.
8 Q Okay. Do you have any idea why it was sent to you?
9 A I think it had to do with the way that Texas courts
10 now are handling asbestos-related cases, specifically
11 that they basically want more information concerning
12 concentrations of exposure.
13 The Flores case was an asbestosis case and the
14 issue was whether or not he really was exposed to
15 asbestos or enough asbestos to cause asbestosis. And
16 I think what the information there basically is that
17 you have to try to provide concentration data if you
18 can do it.
19 And concentration data could come in different
20 ways. It could be information that was obtained from
21 say air sampling. It could come from information that
22 was determined by a retrospective analysis of an
23 industrial hygienist, or it could come from
24 information with respect to what the concentration of
25 asbestos was say in a sample of lung tissue, for

77
1 example.
2 Q Okay.
3 A And the same with the Stephens case, basically the
4 same thing in that it has to do whether or not there
5 was enough factual information with respect to
6 exposure to come to the conclusion that the initial
7 jury did come to.
8 Q And, Doctor, since you received these documents within
9 the last couple days, I gather that you did not review
10 these prior to preparing your report for this case; is
11 that right?
12 A That would be correct, yes.
13 Q So these documents marked as Exhibit 10 were not
14 considered by you as you were forming your opinion in
15 this case?
16 MR. MADEKSHO: Objection. Form.
17 THE WITNESS: Thats correct, yes.
18 Q (By Mr. Cotton) And, Doctor, after the — the
19 excerpts from the Borg-Warner case there is what
20 appears to be either another document or perhaps the
21 next section of the same document titled at the top,
22 Georgia-Pacific versus Stephens?
23 A Yes.
24 Q And do you know whether this is a summary or excerpts
25 from the Stephens opinion?

78
1 A I dont know which one it is. It has to do with the
2 Stephens opinion, and basically the appellate court
3 overturned the initial position or the initial
4 decision.
5 Q Okay. At any point, have you discussed with Mr.
6 Madeksho, Mr. Carter, or anyone else involved in this
7 litigation the standard outlined by the court in the
8 Borg-Warner case?
9 A The standard, no.
10 Q Have you discussed the Borg-Warner decision at all
11 with Mr. Madeksho, Mr. Carter, or anyone else involved
12 with this case?
13 A I dont believe so, no.
14 MR. LABOON: You and I discussed it
15 in a deposition.
16 THE WITNESS: Im sure we did.
17 MR. MADEKSHO: I think he was
18 limiting it just to us and –
19 THE WITNESS: Just to him, yes. I
20 know that you and I had that and the Stephens case
21 before. I was involved in the Stephens case. I
22 wasnt involved in the Flores case, but I knew about
23 the case from people that sent me that.
24 Q (By Mr. Cotton) And the next item in this packet
25 marked as Exhibit 10 is the paper from Dr. Roggli that

79
1 you mentioned earlier?
2 A Yes. That was Dr. Rogglis editorial concerning the
3 Reed paper which appeared in the journal Chest.
4 Q What significance, if any, does this article have in
5 this case?
6 A I think it has a lot of significance. First of all,
7 it shows you what an epidemic they had up there of
8 asbestos-related disease and especially of
9 mesothelioma in Wittenoom as a result of mining and
10 milling of crocidolite asbestos.
11 And I think one of the things that perhaps is most
12 significant is that the document — Dr. Rogglis
13 article, which is information from the Reed article,
14 stated that there was asbestos from the tailings of
15 the mine used in construction of roads, parking,
16 school playgrounds, race — a racehorse course, and
17 even in yards.
18 And I have seen pictures of this. In 2004 I was
19 in Australia and I gave a talk there at the
20 International Academy of Pathology meeting, and
21 actually Dr. Henderson actually gave a talk on
22 Wittenoom.
23 The other thing that is significant is the number
24 of cases of bystander exposure that occurred with
25 respect to mesothelioma, including 31 cases in women,

80
1 showing how they developed the mesotheliomas with
2 respect to how they were exposed.
3 And then the other thing I thought was very
4 interesting was that Dr. Rogglis information about
5 the — he makes this statement right here, he states,
6 If one assumes that the background death rate of
7 mesothelioma is one case per million person years, and
8 thats what is thought to be the case in the United
9 States, and further assuming that the risk is a linear
10 dose response, which means that you would have the
11 same concentration — or the same number of
12 mesotheliomas at high doses as you would at low doses,
13 with no identifiable threshold, and thats with the
14 idea that if you look at Hodgson and Darnton, they
15 make a very strong statement that there is no
16 threshold below which asbestos cannot cause
17 mesothelioma.
18 And then he goes on to state that, Exposure to
19 Wittenoom blue asbestos doubles the background risk of
20 mesothelioma at a cumulative level of 0.01 fiber/ml
21 years. And then he states, This is equivalent to
22 approximately two months of exposure to current
23 Occupational Safety and Health Administration
24 permissible exposure limit of 0.1 fiber/ml years.
25 And what this means to me is that there are cases

81
1 of mesothelioma here caused by crocidolite asbestos
2 that are occurring at incredibly low levels of
3 exposure. And I think thats the most important thing
4 in the whole paper.
5 Q Thank you, Doctor.
6 And the next document within this packet marked
7 Exhibit 10 is the report of William Ewing; is that
8 right, Doctor?
9 A Yes.
10 Q And then the last — Im sorry. What appears to be
11 the last document in this packet marked as Exhibit 10
12 is an article titled, Age and sex differences in
13 malignant mesothelioma after residential exposure to
14 blue asbestos?
15 A Yes.
16 Q Doctor, what, if any, significance does that article
17 have in this case?
18 A That, again, I think just shows that there are cases
19 of exposure to asbestos — crocidolite asbestos in a
20 bystander setting that occurred at Wittenoom. This is
21 basically the Wittenoom report.
22 I ripped that out — I ripped my articles out
23 because I dont like to keep a lot of the other ones
24 that I really — every time this red journal comes
25 I — and I have that in my office just like Dr.

82
1 Roggli.
2 Q Thank you, Doctor. We talked about everything you
3 reviewed in preparation for your deposition today.
4 Have you spoken with anyone in preparation for
5 your deposition today?
6 A No, not specifically.
7 Q When you say, not specifically, what –
8 A No. I mean, I have talked to Mr. Carter and Mr.
9 Madeksho, but not about this case other than at
10 lunchtime today we mentioned a couple of things just
11 about some of the cases of crocidolite in Kent
12 cigarettes causing mesothelioma. And I said I have
13 seen several of those, and I think thats about it.
14 Q Now, Doctor, what, if anything, have you brought with
15 you here today?
16 A Really, I havent brought much of anything. I brought
17 my entire file which I think I was requested to bring
18 and basically that is it. I have not brought any
19 articles. I didnt know exactly how this deposition
20 was going to proceed.
21 I do have a large file on Kent cigarettes and
22 mesothelioma, as you probably would guess. I was
23 telling Mr. Carter that I actually sent a letter to
24 James Talcott after that article came out in the New
25 England Journal of Medicine asking him if they had

83
1 identified asbestos fibers in the cigarette smoke.
2 And I got a response from him saying that they had not
3 evaluated that. I have that letter if you ever want
4 to look at it in my office.
5 Q Lets first talk about what you have brought with you,
6 if we could?
7 A Okay. Heres my entire file that I brought with me.
8 Heres actually — also I brought with me the schedule
9 for todays deposition.
10 Q Okay.
11 A I have a billing document right here.
12 Q Okay.
13 A I have a scheduling document right here that was from
14 Al Parnells office, and that was to me –
15 MR. LABOON: Wrong case.
16 THE WITNESS: Wrong case? I was
17 going to say it — well, it says information on the
18 Young case though. What do you think that means?
19 Anyway, I didnt understand this either.
20 MS. HANSARD: I have no idea. I
21 have a feeling it doesnt have anything to do with
22 this.
23 THE WITNESS: Al and I — Al called
24 me up not long ago and asked if I would evaluate a
25 case.

84
1 MR. MADEKSHO: This is to set up
2 conferencing.
3 MS. HANSARD: Oh, this was to set up
4 a telephone conference because we were going to attend
5 by telephone.
6 MR. MADEKSHO: Just give it to Tina.
7 MS. HANSARD: Al Parnell is in the
8 Atlanta office and Im in the Dallas office.
9 THE WITNESS: Oh, okay, so thats
10 the connection. I should have known that because of
11 Heather.
12 Q (By Mr. Cotton) Why dont I do this, Doctor, to help
13 expedite things. Can you hand me your file?
14 A Absolutely. This was not part of the file. That was
15 on the outside.
16 Q Is that letter part of the file?
17 A Yes. That was part of the file.
18 Q Okay. What I am going to do is ask you some questions
19 about this in just a moment. I noticed earlier today
20 when I believe it was Mr. Carter asking you some
21 questions that you grabbed some stuff out of your bag.
22 A Oh, yeah, the articles, the Hodgson and Darnton
23 article that has to do with extrapolation data on what
24 the relative potency was of crocidolite to amosite to
25 chrysotile.

85
1 And then the Rodelsperger article which I used to
2 show that if you assume that Rodelsperger, et al. is
3 correct that .1 fiber/cc years with respect to how
4 much asbestos fibers you would find in the lung tissue
5 is equivalent to about 8,000 fibers per gram dry,
6 which I said was a very low concentration, which it
7 is.
8 Q And, Doctor, why did you bring those two articles with
9 you today?
10 A Oh, I always bring the low level articles of asbestos
11 with me, not necessarily for this case, but actually
12 for the preceding case.
13 Q I see.
14 A And it was about a case about basically a low level
15 exposure to asbestos. And there are several what I
16 refer to as low level papers, Rodelsperger, et al.,
17 Iwatsubo, et al., Rolland, which is an abstract,
18 Hillerdal, which is a case report, and then there is a
19 few things from the one governmental thing where R.J.
20 Lee was talking about concentrations of asbestos in
21 Southern California where somebody critiqued that
22 document. I think thats about it.
23 MR. LABOON: Is Rolland that
24 abstract that is waiting to be published though?
25 THE WITNESS: Yes. Thats supposed

86
1 to be published. Actually, we have been in contact
2 with those people. And I know Francoise
3 Gallateau-Salle, shes a very close friend of mine,
4 and she said they were about ready — that should be
5 published. They have all the data. They presented it
6 at the IMIG meeting. I think that those were the only
7 two articles I took out of my briefcase.
8 Q (By Mr. Cotton) Okay. Did you bring the other
9 articles that you just referenced with you here today?
10 A I do have the other articles. I have the Hodgson and
11 Darnton article with me. I have the Rodelsperger
12 article. I have the Iwatsubo article. I have the
13 Rolland abstract. I have the Hillerdal paper.
14 Q And you said you brought those for the case you were
15 deposed in earlier today?
16 A Right.
17 Q Are those relevant to this case at all?
18 A I dont think so.
19 Q Doctor, I would like to mark a document as Exhibit 11.
20 (Exhibit No. 11 marked
21 for identification.)
22
23 A Okay.
24 Q Im handing that to you.
25 A Okay.

87
1 Q I invite you to review that document.
2 A Okay.
3 Q You can let me know when you have had a chance to
4 review that.
5 MR. MADEKSHO: I would like to
6 attach our motion to quash what you have just handed
7 to the doctor.
8 (Exhibit No. 12 marked
9 for identification.)
10
11 Q Okay. Doctor, have you had a chance to review Exhibit
12 11?
13 A Yes.
14 Q Have you seen Exhibit 11 before?
15 A No, not that I recall.
16 Q You see in Exhibit 11 there is a list of documents
17 that are requested?
18 A I do see that, yes.
19 Q And it will probably be easier if you had it in front
20 of you.
21 A Okay.
22 Q I know that you brought with you here today your CV
23 and you brought with you your complete file for the
24 case; is that correct?
25 A Yes.

88
1 Q Are there any other documents that you have, perhaps
2 not here today, that are described in Exhibit 11 that
3 you dont have with you?
4 A I would say yes. I would say what I have in my files,
5 which I did not bring with me is, I have basically a
6 whole file on Kent cigarettes, and cases that I have
7 seen of mesotheliomas which I thought were caused by
8 Kent cigarettes. I do not have that with me. I do
9 have that in my file in my office in Bremerton.
10 MR. MADEKSHO: Chris, I would like
11 to also attach Exhibit 12, if you dont mind.
12 MR. COTTON: Sure. Thats fine.
13 MR. MADEKSHO: Okay.
14 MR. COTTON: For the record, Exhibit
15 12 is the plaintiffs motion to quash the deposition
16 notice.
17 MR. MADEKSHO: Yes.
18 Q (By Mr. Cotton) So, Doctor, other than the materials
19 that you brought with you here today that we already
20 talked about, and the Kent file that you referred to
21 thats back in your office, do you have anything else
22 that would be responsive to Exhibit 11, the document
23 request, that we havent talked about?
24 A Not that we havent talked about.
25 I think that there is a couple things, the Hodgson

89
1 and Darnton article was discussed, and I just showed
2 that — that was discussed to show that crocidolite is
3 thought to be the most tumorigenic form of asbestos on
4 a fiber per fiber basis in causing mesothelioma.
5 And the Rodelsperger article is to show that
6 amphibole asbestos at very low concentrations can
7 produce industrial hygiene exposure levels of like
8 .1 fiber/cc, or one fiber/cc years. I dont think
9 there is a whole lot of anything else.
10 The only other thing would be the whole issue of
11 how tumorigenic the various forms of asbestos are.
12 There are some other studies that have come to
13 different numbers than Hodgson and Darnton, and that
14 would include the WTO in 2000, which stated that the
15 ratio with respect to potency for crocidolite to
16 amosite to chrysotile is 30 to 15 to 1.
17 The Rogers article that was published out of
18 Australia would put that ratio at 28 to 14 to 1.
19 And Nicholsons review articles in early 2000
20 stated that crocidolite was about 10 to 12 times more
21 potent than chrysotile in causing mesothelioma and
22 that chrysotile and amosite were about equal, but I
23 think thats pretty common knowledge of people that
24 are interested in potency issues.
25 Q So other than the materials that you have now

90
1 described, is there anything else that would be
2 responsive to –
3 A Not that I can think of. Again, the questions are
4 somewhat vague and with respect to whats responsive
5 and what is not responsive is somewhat in the eyes of
6 whoever — whatever their point of view is, so to
7 speak.
8 Q Fair enough, Doctor. Could you tell me a little more
9 about your Kent file that you mentioned.
10 A I became interested in the Kent file from the Talcott
11 article. Thats where it all started, where they were
12 actually showing there were a significant number of
13 cases of disease in the company that made the Kent
14 cigarettes back in the Boston area.
15 And I was very interested in that because that was
16 a new way that I thought that people could be exposed
17 to asbestos and develop mesothelioma. And I was
18 particularly interested to see if they had ever done
19 any studies on whether there was actual fibers in the
20 cigarette smoke, I mean, thats what I was really
21 interested in and thats why I wrote Dr. Talcott a
22 letter asking him if he knew. And I got a letter back
23 about two months later which stated he had not done
24 that study, and that was the end of that.
25 And then the next thing that came along was Bill

91
1 Longos article, which basically he retrieved Kent
2 cigarettes from that 1952 to 1956 time period,
3 produced cigarette-smoking machines and actually
4 determined the concentration or the release of
5 crocidolite fibers from the filtered cigarettes and
6 wrote an article about that.
7 Now I dont remember all of the details. I do
8 remember that there were certain numbers that were
9 given with respect to — I think he used the word
10 structures. And he talked about that and he made some
11 calculations about that, and that kind of was the crux
12 of that article.
13 There was another article, I think, later that
14 talked some more about that, but I dont recall the
15 details. And thats kind of whats in the article.
16 Like I said, I testified in several cases of Kent
17 cigarettes and mesothelioma. I cant remember when
18 the last one was, and I –
19 Q And — sorry, Doctor.
20 A I probably could find the list of at least some of
21 those I testified in, and you guys probably know them
22 better than I do. I think thats kind of about it.
23 Q And, Doctor, would it be fair to say that the
24 materials that make up your Kent file in your office
25 are among the materials that you have considered in

92
1 formulating your opinions for this case?
2 MR. MADEKSHO: Objection. Form.
3 THE WITNESS: Yes, to a certain
4 extent, sure.
5 Q (By Mr. Cotton) We will ask for the production of the
6 Kent file in light of Dr. Hammars –
7 MR. MADEKSHO: Chris, thats not a
8 problem. I mean, it wasnt stuff that he reviewed
9 specifically for this case, but if you all want it,
10 thats fine. We can get a copy of it.
11 MR. COTTON: Great.
12 MR. MADEKSHO: How about we make
13 arrangements to have it copied and talk after the dep?
14 MR. COTTON: Thats fair.
15 MR. MADEKSHO: Okay.
16 Q (By Mr. Cotton) Doctor, the letter from Dr. Talcott
17 that you mentioned earlier today, will that be in the
18 file?
19 A I think its in the file. Yes, it is.
20 Q And other than the things that you have already
21 mentioned here today, what else should I expect to see
22 in that file?
23 A Well, there probably would be some of the cases I
24 reviewed, I suspect, but Im not certain. I havent
25 looked at that for quite a while. The last time I was

93
1 involved was the article that Dr. Dodson and I
2 reported, and I dont think that was something I
3 looked in the Kent file because we were just curious
4 to see what we would find in that womans lung tissue
5 and her lymph node issue.
6 Q And that was a case, Doctor, that was a lawsuit that
7 you were involved in; is that right?
8 A No, I dont think I was ever involved in that lawsuit.
9 I would have check on that.
10 Q Okay.
11 A I thought that that case — I thought that that case
12 actually settled. I thought that somehow — I thought
13 that that case initially was Jerry — whats Jerry –
14 Jorge, J-o-r-g-e, hes an attorney in Baton Rouge. I
15 will think of his name.
16 He was involved in that, and hes the one that
17 sent the case to myself and Dr. Dodson. And then I
18 thought that Joe Davis, who is an attorney in LA, and
19 I might be wrong about this, but I thought Joe Davis
20 somehow got that case and he had a — they were going
21 to try it in an LA court, and Im not sure what the
22 reasons were for that, but then at the last minute the
23 case settled, at least thats what Joe told me.
24 Q Do you recall the name of that case, Doctor?
25 A I think its this woman, but her name obviously is not

94
1 going to be in the article, but I could find the name
2 of that woman, sure.
3 Q And you have no problem with providing that name,
4 Doctor?
5 A No. I dont have any problem, but I want to talk to
6 the attorneys as to what I should do. I dont have
7 any problem with it. I dont know what the HIPAA
8 rules are. Thats what I think would be really
9 critical and I would have to figure out what the HIPAA
10 rules are with releasing her name. And I dont think
11 that case was ever tried.
12 Q Okay. Now, Doctor, would it be fair to say that –
13 well, let me ask you this, Doctor.
14 If that article forms the basis for any of your
15 opinions in this case, would it be fair to say that it
16 will be important to get the background relating to
17 the exposure at issue in this case?
18 A Sure. I would agree with that.
19 Basically, I think I have already talked about
20 that a little. We certainly extensively tried to
21 determine what her husbands occupation was, and I
22 think I have already said he was an engineer. And we
23 extensively investigated it, or myself and Jerry — I
24 will call him Jerry for now. I will think of his
25 name, but he did the same thing too. He really

95
1 extensively interrogated the woman with respect to
2 what her husband did and we found no evidence he was
3 exposed to asbestos.
4 What I do have is we do have a smoking history on
5 the woman, we do have that information, and we have
6 the fiber analysis on lung and lymph node tissue.
7 Q Let me ask you this, Doctor. Maybe I can save us a
8 lot of time on this.
9 Does that article form the basis for any of your
10 opinions in this case, Doctor?
11 A As far as any specific information, no, because Mr.
12 Young is still alive. I could see if Mr. Young died,
13 which unfortunately hes going to die from
14 mesothelioma, where that could be something that could
15 be part of being used, but again I think his tissue
16 would be — what we find in his tissue would be
17 exactly what we found, and in a way its irrelevant to
18 what this woman had.
19 What is relevant is how much asbestos of
20 crocidolite in nature that Mr. Young had, and was
21 there any other exposure that he had other than Kent
22 cigarettes that resulted in him being exposed to
23 crocidolite asbestos. I think thats really the
24 issue.
25 And right now hes alive and I dont know what his

96
1 status is as far as his condition is right now and
2 things like that, but I can see a time would come when
3 he is going to die and that would be the type of case
4 you would want to do a fiber analysis on, lung and
5 lymph node tissue.
6 Q Is it fair to say, Doctor, that at this point in time
7 that the case study you were describing a moment ago
8 is not relevant in this case?
9 A I think thats correct, yes.
10 Q And it would only be relevant down the road, wouldnt
11 it, Doctor, if the case study at issue that you
12 reported on was substantially similar to the exposure
13 at issue in this case?
14 MR. MADEKSHO: Object to the form of
15 that last question and also this one. I didnt have a
16 chance to get in there. I didnt want to interrupt
17 the deponent.
18 THE WITNESS: I would basically
19 agree with that. I dont know that it would ever
20 necessarily be directly related.
21 I think again whats present in Mr. Youngs lung
22 tissue and his lymph node tissue is whats critical.
23 Q (By Mr. Cotton) And you would agree, wouldnt you,
24 Doctor, that the alleged exposures in this case are
25 fundamentally different than those that you have

97
1 described in your Pace study article?
2 A Yes, they are different. The smoking issues are
3 different.
4 Q Also too, Doctor, in your article you suggest that the
5 woman that was the subject of the case study had no
6 other exposures; is that right?
7 A Right, and thats different from Mr. Young.
8 Q Thank you, Doctor.
9 A But the other exposures in this case could also be
10 evaluated by doing a fiber analysis.
11 Q Doctor, have you had — are you familiar with any of
12 the other witnesses that have been designated or
13 disclosed in this case?
14 A No.
15 Q So you havent had any other conversations with any
16 other witnesses?
17 A No.
18 Q Other than contact from folks at Mr. Madekshos firm,
19 have you had contact with anyone else involved in this
20 litigation, Doctor?
21 A No.
22 Q Doctor, earlier today Mr. Carter asked you some
23 questions about your CV.
24 A Yes.
25 Q And Im not sure if I wrote it down correctly, but did

98
1 you say this is not your current CV?
2 A There is actually a June 2008 one. If you want, I can
3 have it faxed over, and I think we had it from our
4 earlier depo.
5 Q If we could at a break maybe make a copy of what was
6 used in the last deposition and use it for this one?
7 A Yes.
8 Q And the differences, were those described earlier
9 today during your discussions with Mr. Carter?
10 A Yes.
11 Q Okay. Doctor, other than your articles and
12 publications, do you have any other sources that you
13 consider reliable that are relevant to the issues in
14 this case?
15 MR. MADEKSHO: Objection to form.
16 THE WITNESS: Well, I think the ones
17 that would be important or reliable or related to this
18 case would be obviously Longos paper. I think it
19 would be — I had some data from the laboratory which
20 did the first EM studies, and I had the electron
21 micrograph which showed the crocidolite fibers, and I
22 dont know if I still have those or not.
23 Fullerton — Fuller –
24 MR. LABOON: Fullam.
25 THE WITNESS: Fullam Laboratory, I

99
1 had data from them that would perhaps be relevant to
2 this case. I mean, there is a phenomenal amount of
3 information on crocidolite asbestos and its potency,
4 but I think we have kind of gone over that and I dont
5 think its necessary to get all of that.
6 Q (By Mr. Cotton) And, Doctor, you would agree that the
7 Fullam studies that you just referenced dont quantify
8 asbestos released, correct, Doctor?
9 A Yes, I didnt see any data with respect to
10 concentration. All I saw was evidence that they had
11 identified fibers in the cigarette smoke that they
12 thought were asbestos fibers.
13 Q Do you consider Dr. Churg to be an authority in this
14 area?
15 A Certainly an authority in asbestos in general, and
16 asbestos-related diseases, yes.
17 Q Do you consider his book Pathology of Occupational
18 Lung Disease a reliable source?
19 A In general, yes.
20 Q Dr. Roggli, do you consider him an authority in this
21 area, Doctor?
22 A Yes.
23 Q And his book, Pathology of Asbestos Associated
24 Diseases, do you consider that a reliable source?
25 A Yes. The only thing I can say about Dr. Roggli, and

100
1 nothing bad, Dr. Roggli is a very close friend of
2 mine, but with respect to this case, you have to
3 realize that he used a scanning EM to analyze tissue.
4 And what was interesting about the case report
5 that we did is that Dr. Roggli had actually looked at
6 that tissue by scanning EM, and made a statement that
7 he didnt find any asbestos in the tissue that he saw,
8 lung tissue, which is the same thing we saw. And that
9 he said that therefore he could not attribute this
10 lung mesothelioma — the mesothelioma to crocidolite
11 asbestos because he didnt find any crocidolite.
12 The paper that Dr. Dodson and I just wrote, which
13 is on that current CV, talks about why Dr. Roggli
14 doesnt find crocidolite asbestos and its very
15 simple, its too thin. He cant detect it by scanning
16 EM. Its not because hes not looking, its just that
17 the instrument itself is such that he cant see those
18 real thin fibers.
19 But Dr. Roggli is one of my best friends. Hes a
20 very smart guy. Hes written a lot of really good
21 stuff on asbestos-related disease.
22 Q And the article that you were referring to, have we
23 marked that article?
24 A John had that article.
25 Q A technical comparison to evaluating asbestos

101
1 concentration by phase contrast microscopy?
2 A Right. Thats the one.
3 MR. ROYER: I think that was Exhibit
4 4.
5 MR. CARTER: I will check. No,
6 Exhibit 4 was pleural mesothelioma, and the one
7 that –
8 MR. LABOON: Those discussed his new
9 articles. He has Ultrastructural Pathology article
10 which is translocation, and this one, the two
11 differences in the CV and one with the book.
12 Q (By Mr. Cotton) Doctor, we dont need to have it
13 marked. I just had one question.
14 A Sure.
15 Q There is a statement in that article, Doctor, that
16 says, Thus the impact of the total mass of short
17 fibers to that of the minority of longer fibers
18 remains an open question.
19 Do you recall that statement in the article?
20 A Which page is that?
21 Q 729.
22 A I do remember that. I just want to see what the
23 context was.
24 Q About a third of the way down, Doctor.
25 A On the right side?

102
1 Q Yes.
2 A Yes. Thus the impact of the total mass of short
3 fibers to that of the minority of longer fibers
4 remains an open question.
5 Yes, I think thats true.
6 Q And what is the — what is meant by that statement?
7 A Basically theres been a big issue in asbestos-related
8 medicine with respect to how toxic short fibers are.
9 And to make a long story short, there are some
10 people that believe that short fibers with respect to
11 mesothelioma development, maybe lung cancer
12 development, are not caused by short fibers but only
13 fibers that are greater than five micrometers long.
14 What this is really saying that if you had a lot
15 more short fibers, and a lot fewer longer fibers, what
16 would be the impact of the shorter fibers on say the
17 development of the disease process versus the longer
18 fibers?
19 And the answer to that question is, I dont think
20 anybody knows. There are some studies, and Dr. Roggli
21 would cite them, that at least in experimental animals
22 its only the longer fibers.
23 But yet there is other studies, for example, like
24 if you look at Stanton and Wrench which everybody
25 cites, and they always cite the wrong thing in that

103
1 they dont state that what Stanton and Wrench really
2 said where that the longer fibers create more
3 mesotheliomas, or what they call pleural sarcomas, in
4 rats than the short fibers. But the short fibers, say
5 like four micrometers, do cause mesotheliomas.
6 And then also I think people forget what Dr. Churg
7 published in 1993, and that was that he published an
8 article that challenged the Stanton hypothesis stating
9 that he had seen a lot of cases of mesotheliomas in
10 British Columbia where none of the fibers were greater
11 than, as I recall, four micrometers long. They were
12 all thick, short amosite fibers, but the short fibers,
13 again the definition of short is not precise and you
14 would have to figure out what you are talking about,
15 but the real thing about what we say in this article
16 is whether or not you have a lot of short fibers and
17 fewer longer fibers what does that mean with respect
18 to causing injury or disease and I dont think anybody
19 knows.
20 Q Doctor, is that concept addressed in the new textbook
21 that you published?
22 A To a certain degree, yes, what is really known, and
23 theres still a great deal of debate about that.
24 And I think it — theres kind of sides that are
25 drawn to a certain degree. There are some people that

104
1 think short fibers never cause disease. There are
2 other people that think that short fibers are the
3 majority of fibers that you see in pathologic tissue
4 so they probably cause disease.
5 There is a experimental evidence, for example, by
6 Agnes Kane who has reported on this that short fibers
7 cause injury. I have a deposition by Dr. Pooley,
8 which I can produce if you want me to, that states in
9 his deposition — and I cant remember the exact
10 one — that short fibers cause disease, but thats
11 really the issue.
12 The issue is do short fibers cause disease, or do
13 they not cause disease. And then I guess it would be
14 if you thought they did cause disease, how potent are
15 they in causing diseases like mesothelioma compared to
16 longer fibers in humans. And I dont think that data
17 is available, and Im not sure its going to be
18 available. Its a difficult thing to evaluate.
19 Q And you describe it in your article as an open
20 question then?
21 A Yes. And thats exactly what we mean. Its
22 uncertain. Its not — its open. Its not concluded
23 yet with respect to what the correct answer is.
24 Q And, Doctor, do you have an opinion on that issue?
25 A Well, I think theres good evidence from everything

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1 that short fibers cause injury. I think that there is
2 good experimental animal evidence that longer fibers
3 are more tumorigenic in causing at least mesothelioma
4 than shorter fibers. There is no way that you can
5 actually look into a persons pleura or lung tissue or
6 lung and say that this fiber is causing this type of
7 injury at that point in time. Its very hard to do.
8 If you go by some of the animal studies there is good
9 evidence that the short fibers are not as potent as
10 the long fibers, but there is also good evidence of in
11 vitro studies that even short fibers of chrysotile
12 cause a great deal of injury, and in fact are probably
13 the most potent fiber in vitro in causing cellular
14 changes. So you get this big conundrum and I dont
15 know if the conundrum has been sorted out yet.
16 Q Thank you, Doctor. We were talking about authorities.
17 Can you tell me what texts you have in your office
18 that you refer to related to asbestos and disease
19 issues?
20 A What I would — I have Dr. Rogglis books, two books.
21 I dont have Dr. Churgs — hes the editor of one of
22 the pulmonary path books taken over by — I dont have
23 that. I have read some of that, but I dont have that
24 book in my office. I have the book that myself and
25 Dr. Dail have edited, first and second edition, the

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1 third edition is edited by Joe Tomashefski, Phil
2 Cagle, and Armando Fraire, and I have that book. And
3 I have the book that Dr. Dodson and I wrote or edited
4 in 2006 called Asbestos: Risk Assessment,
5 Epidemiology, and Health Effects. I think thats the
6 correct title. Let me see for sure. Yes, Asbestos:
7 Risk Assessment, Epidemiology, and Health Effects, so
8 I use that and I think thats about it.
9 Q Okay.
10 A Then the third edition of our Dail and Hammar, that
11 chapter on mesothelioma and chapter on pleural tumors,
12 which is Chapter 43, theres a really a lot of
13 information about mesothelioma and about asbestos in
14 there.
15 Q Okay. Anything else, Doctor?
16 A No, I think thats about it.
17 Q Okay. I want to switch gears and talk a little more
18 specifically about the Young case.
19 A Sure.
20 Q When were you first contacted about becoming involved
21 in this Young case, if you want to refer to your file?
22 A I think it was in November of 2007.
23 Q And how were you first contacted?
24 A It would have been by a letter from Nadia Goodson,
25 paralegal to Mr. Madeksho.

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1 Q Madeksho –
2 A Yes, his firm. That letter should be in here.
3 Q Is that the top of the pile, Doctor?
4 A Yes, here it is. You are right. Thanks.
5 Q Okay. We will go through it in detail. The first
6 letter you received from Ms. Goodson was received, it
7 looks like, November 20th; is that right?
8 A Right.
9 Q We will mark this as Exhibit 13.
10 (Exhibit No. 13 marked
11 for identification.)
12
13 Q Doctor, I am going to hand you whats been marked as
14 Exhibit 13, and this is the first letter you received
15 from Ms. Goodson regarding this case?
16 A Yes.
17 Q Had you had any prior dealings with Ms. Goodson or the
18 Madeksho law firm?
19 A I dont know. I would have to look and see. I would
20 have to check with my assistants. That would be
21 simple to find out, but I dont recollect.
22 MR. MADEKSHO: Objection to form. I
23 didnt want to interrupt.
24 Q (By Mr. Cotton) Do you know — well, maybe you
25 answered the last question and your answer answers

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1 this, but do you recall whether you had any sort of
2 heads up, so to speak, that you were going to be
3 getting this case, or is this letter the first you
4 heard?
5 A I dont recall. Sometimes I will — various attorneys
6 will call me directly and I might remember, but what
7 happens is they call one of my assistants, Michaele
8 Stoll or Nancy Bennet, and those are the two
9 individuals that actually would receive information
10 say if somebody wanted me to review a case.
11 I basically review all cases that Im asked to
12 review, both sides, so I would do it and they both
13 know that thats my position. But as far as I recall,
14 I didnt receive anything about this, and I cant
15 remember. I would have to ask Michaele and Nancy if
16 they did, and they probably wouldnt remember either.
17 Q Fair enough. This is the first I have seen this
18 letter, but I was skimming over it and I see in the
19 first sentence that Ms. Goodson thanks your for your
20 time and effort in reviewing the cases we continue to
21 send to you.
22 A It sounds like they have sent us more.
23 MR. MADEKSHO: The Neighbors case.
24 THE WITNESS: I dont remember all
25 the cases. I just cant do that. I remember Chris

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1 name, but I dont remember exactly how many cases they
2 have sent, and I just cant do that.
3 Q (By Mr. Cotton) Thats fair enough.
4 A I know how to look it up though.
5 Q Okay. I appreciate that, Doctor.
6 And the letter from Ms. Goodson references a
7 series of items, interrogatory responses from Mr.
8 Young, work history Exhibit 1, military service
9 records RFP 5, military records, and subpoints, Brook
10 Army Medical Center, UT MD Anderson Cancer Center,
11 tissue pathology report, and then pleural fluid
12 pathology report. Do you see that, Doctor?
13 A Yes.
14 Q And are all those materials in the file that you
15 brought with you today?
16 A They are.
17 Q Okay. All right. Lets start marking the rest of the
18 documents in there, if we could.
19 A Sure. It might be easier to mark the entire file.
20 Its up to you, of course.
21 Q What I want to do is go through and match everything
22 up just so we can keep it all together.
23 A Sure.
24 Q I see that theres a later letter, and Im not sure –
25 well, I will just ask you the question.

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1 Other than the materials that you first received
2 back in November of 2002, have you received anything
3 more subsequent to that time related to this case?
4 A The only thing that I recall subsequent would have
5 been that thing that we have already talked about,
6 that.
7 Q The documents that were sent?
8 A Yes. I dont think I have received anything else as
9 far as I know.
10 Q Just so the record is clear, when you are talking
11 about the additional materials, you are talking about
12 the documents that are marked as Exhibit 10?
13 A Right.
14 Q Thank you. One of the documents in the pile is this
15 June 23 message relating to the scheduling of this
16 deposition?
17 A Yes.
18 Q I am going to exclude those. What Im trying to do,
19 Doctor, is assemble everything you first received,
20 mark that, and see what we have left.
21 A Sure.
22 Q Doctor, I am going to hand back to you what I think,
23 based on the description in the letter from Ms.
24 Goodson, is what was originally sent to you.
25 Would you mind flipping through that and see if it

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1 matches up with your recollection.
2 A These are the surgical path reports, and that would be
3 the MD Anderson report. And this is the biopsy report
4 and this is the pleural fluid cytology report. That
5 was interrogatory responses to Exhibit 1, heres B,
6 work history, and then Part C military service
7 records, that RFP. Part D, medical records RFP,
8 thats eight. And Brook Army University of Texas, MD
9 Anderson, and there were the two pathology reports, so
10 right here from MD Anderson, which was the cytology
11 report, fine needle aspiration biopsy, C-07-205441,
12 and then the actual chest wall biopsy, which was
13 S-07-15694, so that would be it.
14 Q If there is no objection, what I would like to do is
15 just package that all up as one exhibit with that,
16 which is Exhibit 13.
17 All right. Doctor, we have marked everything we
18 just talked about as Exhibit 13, and just so we are
19 all clear, Exhibit 13 is the entirety of everything
20 that you received from Mr. Madeksho back in November
21 of 2007; is that right?
22 A Yes.
23 Q Okay. And just to sort out everything else we have,
24 trying to assemble this chronologically, Doctor, do
25 you recall what the next thing you received, if

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1 anything, from the Madeksho law firm was?
2 A I think thats a duplicate letter. Its a letter
3 saying I hadnt got my report done.
4 Q This letter, why dont we mark this as Exhibit 14.
5 (Exhibit No. 14 marked
6 for identification.)
7
8 Q And in this letter marked as Exhibit 14, again another
9 letter from Ms. Goodson, shes thanking you for your
10 efforts, and she encloses for your review the
11 pathology report from MD Anderson for Mr. Young.
12 A Okay.
13 Q And she goes on to say, We previously submitted the
14 following documents, which as you noted match up with
15 what we just spoke about.
16 Is this the next correspondence that you recall
17 receiving from the Madeksho law firm related to this
18 case?
19 A As far as I know, yes.
20 Q And prior to receiving this letter in April of 2008,
21 had you received or reviewed any pathology related to
22 this case?
23 A Not that I know of, no.
24 (Exhibit No. 15 marked
25 For identification.)

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1 Q Dr. Hammar, I am going the hand to you whats been
2 marked as Exhibit 15, and ask you if you recognize
3 that as a document from your file?
4 A I know that was in there, yes.
5 Q Can you tell us what Exhibit 15 is?
6 A It looks to me like it was a document that was sent to
7 Mr. Madekshos law firm from MD Anderson concerning
8 pathology materials, and there is an affidavit by a
9 custodian of the pathology materials, it looks like, I
10 guess, this is Alejandra Walding, A-l-e-j-a-n-d-r-a,
11 and then W-a-l-d-i-n-g, stating that they sent three
12 pages of records and 15 slides and one block to me.
13 And that was done on, lets see. The affidavit was
14 dated April 4, 2008, so I guess that is just sending
15 me additional pathology.
16 Q Okay.
17 (Exhibit No. 16 marked
18 for identification.)
19
20 Q Doctor, Im handing you whats been marked as Exhibit
21 16 and ask if you recognize that document?
22 A This is what we refer to as our input sheet, and
23 basically it starts out having the plaintiffs name,
24 the age, the date of birth, the attorney who sent it,
25 Mr. Madeksho, whether the patient is living, and who

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1 requested this, which is Nadia Goodson, and it shows
2 the pathology materials.
3 And then in this case it looks like its all
4 finished because there is a date transcribed and they
5 sent the letter, report, and 15 slides back to the
6 Madeksho law firm, but thats what we refer to as our
7 input sheet.
8 Q When, in your practice, do you generally create the
9 input sheet?
10 A Initially, we create it when all the information first
11 comes in which would have been that first letter from
12 Nadia Goodson.
13 Q Okay.
14 A That would have been when that first was created, but
15 it didnt have all that information on it. And
16 eventually as time goes on we will replace that with
17 updating after additional things happen, like a report
18 is generated, the slides are sent back, et cetera.
19 Q So is this, for lack of a better word, a living
20 document that is updated as time goes on?
21 A Right. It just gives us the status of what we
22 received, what we have done, have we completed the
23 report, that type of thing.
24 Q Would there be any prior versions of this document
25 anywhere?

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1 A There wouldnt be any prior versions available, but
2 yes, there were prior versions, but what we do, as
3 time goes on and we do more things we delete or
4 discard the previous document.
5 Q Okay.
6 A We dont keep every one because they are basically
7 repetitious. And this one is at the end because it
8 shows the report has been dictated and we sent the
9 slides, blocks, and report back to the attorney who
10 sent us the case.
11 Q Okay.
12 (Exhibit No. 17 marked
13 for identification.)
14
15 Q Doctor, I am going to hand you whats been marked as
16 Exhibit 17 and ask, do you recognize that?
17 A Sure. Thats the cover letter that I sent Ms.
18 Goodson concerning this case.
19 The only thing here that is perhaps significant
20 has to do with that radiology report which I already
21 mentioned and whether or not there were plaques
22 present.
23 Q And why did you find that confusing?
24 A Well, because the way it was written. And I think I
25 made that quote, its in my report, it was not clear

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1 to me whether there were or were not plaques. The way
2 it sounded to me is like there were plaques, and the
3 presence of plaques would suggest the possibility of
4 mesothelioma, which is kind of true but not
5 necessarily true.
6 Q Doctor, one of the remaining things we have in your
7 file is what appears to be your expert report in the
8 case?
9 A Yes.
10 Q And I think we previously marked a copy of your expert
11 report earlier today?
12 MR. CARTER: Exhibit 2, I think.
13 Q (By Mr. Cotton) Is Exhibit 2 that was marked and
14 discussed earlier today the same as the document you
15 brought with you from your file?
16 A Yes.
17 Q Okay. We wont mark the same document twice then.
18 A Okay.
19 Q And the last document in your file relates to the
20 scheduling of this deposition?
21 A Yes. And there is one other thing and thats the bill
22 we sent to Mr. Madeksho.
23 Q The most important thing?
24 A I wouldnt say it was the most important thing.
25 Q Lets mark this.

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1 (Exhibit No. 18 marked
2 for identification.)
3
4 Q Doctor, Im handing you whats been marked as Exhibit
5 18, and ask you if you recognize that?
6 A Thats a copy of the invoice we sent to Mr. Madekshos
7 law firm.
8 Q And this invoice indicates that you billed two hours
9 for work on this case; is that right?
10 A That is correct.
11 Q That was for review of medical records and/or
12 pathology materials?
13 A Yes.
14 Q Does that include all of your work for this case,
15 Doctor?
16 A Yes.
17 Q Up until today obviously?
18 A Yes.
19 Q Okay. So — and your rate, Doctor, reflected on this
20 invoice it appears is $400?
21 A $400 an hour.
22 Q Is that your usual rate?
23 A Yes.
24 Q Is that your usual rate for review of cases?
25 A Yes.

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1 Q Whats your rate for testifying?
2 A $500 an hour.
3 Q And do you know when you did your work on this case
4 thats reflected in the billing statement?
5 A It would have been fairly close to when the report was
6 transcribed, which I think is June 29th, wasnt it?
7 Q June 9th?
8 A Right. Couldnt have been June 29th thats not come
9 yet, so June 9th, yes.
10 Q If I might ask, is there any reason why the report
11 wasnt generated any sooner given the fact you
12 received materials starting back in November?
13 MR. MADEKSHO: Objection. Form.
14 THE WITNESS: Sure. Theres a lot
15 of good reasons. We try to prioritize everything.
16 And sometimes we will get cases that attorneys need it
17 the next day or following day.
18 I was working on a case last night I had to get
19 done. And sometimes we dont have any information
20 about when they need it done, and then what we will do
21 as time goes on we will see a case like this one right
22 here where its been a few months and call and say
23 when do you need this report.
24 But the reason is because we prioritize, and it
25 seems like there is cases that people need to have

119
1 done, some people need to have done sooner than later
2 and we try to do that. Its not necessarily the most
3 honest way to do it, but thats the way it is,
4 especially in the legal because you dont know how
5 these cases are really going to progress.
6 Q Okay.
7 A There is no intention of anything against Mr.
8 Madeksho.
9 Q I didnt mean to suggest that.
10 A That is — that question is asked commonly, and I also
11 basically say — and Im sure John has heard this
12 before — is that its just a matter of prioritizing,
13 and maybe some people are more concerned about getting
14 their reports than others, but we try to do that and
15 try to do it with respect to when the trials are
16 coming, when the depositions are coming, and that type
17 of thing.
18 Q And do you recall, Doctor, why it is that ultimately
19 your report was generated and transcribed around June
20 of this year?
21 MR. MADEKSHO: Objection to form.
22 Q (By Mr. Cotton) Was there something that pushed it up
23 on the priority ladder?
24 A I dont know. I couldnt answer that. I dont know
25 if my assistants could answer that. Sometimes they

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1 might have a note in there say, received a call from
2 Madeksho law firm and need the report by X time. I
3 dont think I saw that in there, but that some of
4 them — some of my folders would have statements like
5 that.
6 Q Okay. And I asked you whether you had done work
7 before with Mr. Madekshos law firm and I meant to ask
8 if you remember — I meant to ask whether you had done
9 any prior work with Mr. Carter?
10 A I think so in the past. Havent we dont something?
11 Q Just what you can recall.
12 MR. CARTER: In a prior lifetime.
13 Q (By Mr. Cotton) You dont recall today?
14 A No, I dont recall exactly.
15 Q Okay. Now, Doctor, your expert report that we spoke
16 about earlier today that has been marked as Exhibit 2,
17 summarizes Mr. Youngs — some of Mr. Youngs asbestos
18 exposure history; is that right?
19 A That is correct.
20 Q And what formed the basis for that summary that you
21 prepared?
22 A Basically the information I received from the law
23 firm.
24 Q So all the things that is — strike that –
25 The only things that formed the basis for that

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1 summary were the things we have discussed from your
2 file for this case; is that right?
3 MR. MADEKSHO: Objection. Form.
4 Q (By Mr. Cotton) You havent interviewed Mr. Young?
5 A I have not.
6 Q You havent reviewed any of the depositions that were
7 taken in the case; is that right?
8 A I have not.
9 Q And you have not visited any of Mr. Youngs work sites
10 relevant to this case, have you?
11 A I have not.
12 Q And all the information that was provided to you
13 relating to Mr. Youngs alleged asbestos exposure
14 history came from his attorneys; is that right?
15 A That is correct.
16 Q And, Doctor, other than perhaps some folks on your
17 staff, have you discussed this case with anyone else?
18 A No.
19 Q And other than the materials that we discussed from
20 your file today, have you reviewed anything else
21 specific to this case?
22 MR. MADEKSHO: Objection. Form.
23 THE WITNESS: No.
24 Q (By Mr. Cotton) Other than your expert report, have
25 you generated anything else related to this case?

122
1 A No.
2 Q And everything that you have relating to Kent
3 cigarettes specifically would be included in the Kent
4 file that you described earlier today; is that right?
5 A As far as I know. The only thing in there that — I
6 have not looked at that for some time, so I dont know
7 if I have a list of all the cases I have seen where I
8 have been involved in litigation with those or not. I
9 dont know that.
10 But I think all of the articles that dealt with
11 that, with the issue of micronite filters are in
12 there. And I think there would certainly be
13 information on some of the cases that I looked at but
14 Im not sure all of them. But I do keep them in a
15 single file and easy to access.
16 Q During the course of your two hours in working on this
17 case, did you have a need to refer to that file?
18 A No. I didnt know how this deposition was going to
19 come out. I didnt know you folks were going to be
20 here, for example.
21 Q I will have to ask you later whether thats a good
22 development or bad development.
23 A Nothing negative. I just didnt know. I was not
24 told. At least, if I was told, I didnt remember.
25 Q Can you summarize, Doctor, your understanding of Mr.

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1 Youngs alleged exposures to asbestos over the years.
2 MR. MADEKSHO: Objection. Form.
3 THE WITNESS: I would say I will take
4 my report if I could, the information is basically all
5 taken from the response to interrogatories and
6 information I received from Ms. Goodson, and basically
7 its that he was stated to have smoked Kent cigarettes
8 in a time period where they did contain a micronite
9 filter that contained ten milligrams of crocidolite
10 asbestos per filter.
11 He was stated to have worked at the Travis Air
12 Force Base and also other air force bases, and was in
13 barracks where he stated that he saw insulation being
14 disturbed. Also a statement that he worked around
15 other tradesmen, and I dont know exactly how that
16 happened, but it states he worked around other
17 tradesmen including insulators, pipefitters,
18 boilermakers and other outside personnel who installed
19 and tore out asbestos-containing products, including
20 but not limited to pipe insulation. That I think was
21 highly significant.
22 And he also stated in Interrogatory 45 that –
23 Q Im sorry, Doctor. I dont mean to interrupt.
24 You made a point that something was highly
25 significant. Why was that highly significant?

124
1 A If a person worked around other people, like
2 insulators, pipefitters, boilermakers, I mean, that
3 potentially could be a high exposure, but it kind of
4 depends on what the person exactly does.
5 And the other thing I thought was confusing in
6 there is he was an information specialist computer
7 programmer, and you wouldnt inherently think that
8 that type of person would be around other tradesmen
9 like insulators, pipefitters, welders, blah, blah,
10 blah. Thats something I would not think would
11 happen, unless where he was actually working and they
12 were say remodeling or building something and he was
13 right in the area where all this construction activity
14 occurred, and thats possible.
15 And then also he was stated to have been exposed
16 to, lets see. It was the — the JL Powell &
17 Associates were a contractor who performed maintenance
18 or renovation on boiler equipment to which Mr. Young
19 was exposed. And then it says discovery is
20 continuing.
21 That again is a potential exposure. How much, I
22 cant tell from that information. You would have to
23 have more details. You would have to know, for
24 example, where was he at with respect to boiler
25 renovation. You would want to know exactly what kind

125
1 of boiler renovation was being done. Was he, you
2 know, within the immediate vicinity of where that was
3 being done, or was he some distance away. But it
4 looks to me like thats the exposure history based on
5 the information I had.
6 Q And that was based exclusively on what was provided to
7 you by plaintiffs counsel?
8 A That is correct, yes.
9 Q Doctor, do you as a practice typically review
10 deposition transcripts before offering an opinion
11 regarding causation?
12 A It varies from one case to another. I would say
13 sometimes I do and sometimes I dont. Sometimes I
14 will receive summaries of deposition transcripts. I
15 have read a lot of depositions in my career as a
16 pathologist interested in asbestos-related disease,
17 but I dont do that in every case. I would say there
18 would be more cases where I dont review deposition
19 transcripts than ones where I do.
20 Q Okay. And the distinction between those that you do
21 and those that you dont, is that a product of what
22 you are asked for or what you are provided?
23 A Usually what Im provided and sometimes what Im asked
24 to review. Often there might be five or six volumes
25 of a deposition, and I might be asked to read Volume

126
1 I, which has to do with the plaintiffs evaluation of
2 the — excuse me, the plaintiffs attorneys
3 evaluation of the plaintiffs exposure, clinical
4 history, et cetera, et cetera.
5 Q And I gather, Doctor, you have not been asked to
6 review the deposition transcripts in this case; is
7 that right?
8 A That is correct.
9 Q And have you asked to review those transcripts?
10 A No.
11 Q Do you want to take a break, Doctor?
12 A No, not necessarily. Do you guys want to take a
13 break?
14 MR. MADEKSHO: If you are fine,
15 maybe in ten minutes would be a better time?
16 THE WITNESS: Thats fine. Let me
17 ask you this, how much more time do you think you
18 have, approximate?
19 MR. COTTON: Well, how long are you
20 available today, Doctor?
21 THE WITNESS: Well, I think –
22 MR. MADEKSHO: Kristy has requested
23 the entire day.
24 THE WITNESS: I think it was to five
25 oclock, but actually I do need to take about a

127
1 15-minute break. I do have to do one thing, if thats
2 okay?
3 MR. COTTON: Sure.
4 (Recess 2:34 p.m. to
5 2:56 p.m.)
6
7 Q (By Mr. Cotton) Doctor, I want to follow up on a few
8 things, and then go through a number of other things
9 that we havent talked about yet. We already talked
10 about your expert report.
11 Was there a draft of that report created?
12 A Theres always a draft, but its a draft that is so
13 similar and it would just be a matter of proofreading
14 but nothing significantly different.
15 Q Okay. Do you have a copy of that draft?
16 A No.
17 Q And does it exist anywhere?
18 A No.
19 Q And we talked about when your expert report was
20 transcribed on 6/9/08.
21 Do you know when you would have dictated that
22 report?
23 A It probably would have been the day before or maybe a
24 couple days before. Its hard to say. It kind of
25 depends on how busy we are and how many other things

128
1 we have to get done.
2 Q You dont recall when you started working on it other
3 than it was within a week or so of the transcription
4 date?
5 A That is correct, yes.
6 Q And, Doctor, a fiber burden analysis has not been
7 conducted in this case; is that right?
8 A Thats correct.
9 Q Doctor, I want to hand back to you Exhibit No. 2 which
10 is your expert report in the case. In your summary of
11 Interrogatory No. 6 you talk about Mr. Youngs
12 exposure to asbestos at Fort SAM Houston?
13 A Yes.
14 Q And you also refer to the work history sheet; is that
15 right, Doctor?
16 A Yes.
17 Q Can you say how much asbestos, if any, Mr. Young was
18 exposed to at Fort Sam Houston?
19 A No.
20 Q And the reference to the work history sheet, in what
21 way, if at all, did you use that in forming your
22 opinions for this case?
23 A Well, if he was exposed to asbestos as indicated then
24 that in my opinion would be a potential exposure that
25 he had that contributed to cause his mesothelioma.

129
1 Q Have you ever undertaken analysis to quantify the
2 amount of respirable asbestos fibers released from any
3 asbestos-containing product?
4 A No.
5 Q Doctor, are you qualified to give testimony regarding
6 the specific amount of asbestos in any product at
7 issue in this case?
8 A No.
9 Q Doctor, in your expert report I think you have in
10 front of you there, on Page 2 there appears to be a
11 summary of the radiology report that you reviewed?
12 A Yes.
13 Q And in the first paragraph it talks about a CT scan
14 dated March 13, 2002. Do you see that?
15 A Yes.
16 Q Could you review that paragraph?
17 A Sure.
18 Q Doctor, do you see in the last sentence of that
19 summary that a biopsy was suggested?
20 A Right.
21 Q Do you know whether a biopsy was undertaken in 2002?
22 A No. As far as I know, at least from the information I
23 have, it was not.
24 Q Mr. Youngs mesothelioma, would it have been — would
25 he have been a surgical candidate in 2002 if his

130
1 disease was diagnosed at that time?
2 A Maybe.
3 Q And are you aware that Mr. Young filed a medical
4 malpractice type claim relating to a misdiagnosis
5 issue?
6 MR. MADEKSHO: Objection. Form.
7 THE WITNESS: I did not know that.
8 Q (By Mr. Cotton) Does that surprise you, Doctor?
9 MR. MADEKSHO: Objection to form.
10 THE WITNESS: It kind of depends on
11 what he was told. I dont know if that would surprise
12 me or not, what he was told and what somebody stated
13 they were going to do.
14 And I guess the other thing would be what the
15 issue was of the medical malpractice. Was it a
16 failure to diagnose, or failure to follow through, or
17 what was exactly the specific complaint that he had?
18 Q (By Mr. Cotton) Now, Doctor, going back to some of
19 the correspondence we talked about earlier, is it your
20 recollection from reviewing your file that you first
21 received the pathology material for this case in April
22 2008?
23 A Thats my best estimate, based on the information in
24 that one letter from Nadia Goodson, that they sent us
25 the pathology material in April of 2007.

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1 Q And is it your recollection that you returned it to
2 Ms. Goodson on June 12th of 2008?
3 A Yes. I think I said 2007 — but its 2008.
4 Q What, if anything, did you do with the paraffin block
5 you received?
6 A I didnt do anything. Sometimes I would do
7 immunohistochemistry, but immunohistochemical tests
8 are very expensive and I usually dont want to do that
9 if its already been done by a reputable facility, and
10 in this case I thought they had done that. They had
11 done what I would say are basically the correct tests.
12 You could always make a case for doing a few more
13 other things in this type of case because it was a
14 little bit localized, but the way it came out it was
15 so characteristic of mesothelioma that I didnt think
16 there was any reason to take that block and do the
17 test. They basically cost about $170 per test.
18 Q What did you do with the slides that you received?
19 A Sent them back to the attorneys office.
20 Q What did you do with them while you had them?
21 A Basically they would be put in these folders that are
22 about like that, and like that, and you put slides in
23 them and they would stay in those folders until I
24 looked at them.
25 I would take them out of the folder, look at them

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1 through my microscope, put them back in the folder,
2 and then when I dictated what I was going to dictate
3 with respect to what I saw, they then would be
4 returned to one of my assistants, either Michaele or
5 Nancy.
6 Q Doctor, on Page 4 of your report there is a section
7 titled The following summary statements can be made
8 in this case.
9 A Yes.
10 Q The summary thats outlined in Paragraph No. 2, is
11 that a summary that you dictated based on your review
12 of the case?
13 A Yes.
14 Q And, Doctor, that paragraph on Page 4, No. 2 to your
15 expert report, does that summarize your understanding
16 of Mr. Youngs what I will call occupational exposure
17 to asbestos?
18 MR. MADEKSHO: Objection. Form.
19 THE WITNESS: Yes.
20 Q (By Mr. Cotton) In Paragraph No. 5, again there is a
21 reference to a CT scan of March 13, 2004, or sorry,
22 2002.
23 What is the significance of that, and in
24 particular why did you put that in your report?
25 A Any time you see a mass in there where it raises the

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1 possibility of a neoplasm and subsequently the patient
2 develops a neoplasm, you want to try to determine was
3 that previous mass that was identified in March of
4 2002, was that related to the current tumor that was
5 diagnosed. And sometimes you know and sometimes you
6 dont.
7 In this case, at least, I dont know because as
8 far as I know, a biopsy or a resection was not done.
9 Now I dont know for sure if thats the case, but
10 thats what I assume.
11 Q Doctor, what I would like to do is go back up to
12 Paragraph No. 2 and talk about some of the statements
13 in there piece by piece, if I may, okay?
14 A Sure.
15 Q In the second sentence of Paragraph 2 you summarize
16 that you refer to he, and you are referring to Mr.
17 Young there; is that right?
18 A Yes.
19 Q Mr. Young was stated to have been exposed to asbestos
20 and asbestos-containing products and machinery and
21 construction activities of contractors, do you see
22 that?
23 A Sure.
24 Q And, Doctor, do you believe that that exposure to
25 asbestos was sufficient to cause his disease?

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1 MR. MADEKSHO: Objection to form.
2 THE WITNESS: I cant answer that
3 question. I dont know. Theres not enough
4 information there. I mean, if he had a definite
5 occupational exposure then potentially it would be.
6 It kind of depends on exactly how he was exposed, how
7 long he was exposed, what he was exposed to, and that
8 information is not given.
9 Q (By Mr. Cotton) Okay. Doctor, should I assume that
10 your answer would be the same if I asked whether the
11 next statement that follows, summarizing, that he was
12 stated to have lived in a barracks and saw insulation
13 disturbed, would your answer be the same?
14 A It would be, yes.
15 Q And, Doctor, would your explanation be the same for
16 each of the statements contained in Paragraph 1, again
17 relating to whether any one of those individual
18 exposures was sufficient to cause Mr. Youngs
19 mesothelioma?
20 MR. MADEKSHO: Paragraph No. 2?
21 MR. COTTON: Im sorry. Did I say
22 1?
23 THE WITNESS: I know what you meant,
24 yes.
25 Q (By Mr. Cotton) And would that be your same opinion

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1 with respect to Paragraph No. 3?
2 A Yes.
3 Q So summarized then, Doctor, in Paragraph No. 3 you
4 state that, Mr. Young was stated to have started
5 smoking Kent cigarettes at age 13 from approximately
6 1954 to 1956, approximately ten cigarettes per day.
7 Do you see that?
8 A I do.
9 Q And, Doctor, its your testimony that — Doctor, you
10 cant say whether that exposure to asbestos was
11 sufficient to cause Mr. Youngs disease, correct?
12 MR. MADEKSHO: Objection to form.
13 THE WITNESS: Basically you never
14 know. I mean, in a situation where there is multiple
15 exposures, I think all of them have the ability to
16 contribute. Whether one by itself could do it, who
17 knows. Whether you removed one, would he still get
18 mesothelioma, who knows. Nobody knows.
19 All I can say is I think asbestos-related diseases
20 are dose response related. The more a person is
21 exposed to, the greater the risk. And in a situation
22 where they have the disease, I think its
23 scientifically accurate to assume that all of the
24 exposures they had had the potential, or did actually
25 contribute to the cause of the disease, and you really

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1 cant sort out one from another.
2 Q (By Mr. Cotton) Now, Doctor, back to Paragraph No. 2.
3 Theres a reference to Mr. Young working around other
4 tradesmen, including insulators. Do you see that?
5 A I do see that.
6 Q And you would agree that bystander exposure for an
7 individual to insulation work is a significant
8 exposure?
9 A It can be very significant, but the trouble with that,
10 at least what I think I already said the trouble –
11 well, not the trouble with that information — that
12 information to me is confusing, in that I dont have a
13 good feeling exactly of how much he was exposed to.
14 But if he was truly in the immediate vicinity of an
15 insulator doing insulation work, applying thermal
16 insulation or block insulation to some type of area
17 like a pipe or around a boiler or something like that,
18 and he was in that area, that exposure by itself could
19 cause mesothelioma.
20 Q And would you hold the same opinion with respect to
21 someone working around a pipefitter?
22 A Yes.
23 Q Would you hold the same opinion for someone working
24 around a boilermaker?
25 A Basically, yes, if they were doing active work in

137
1 which asbestos-containing material was being distorted
2 and releasing respirable fibers in the air.
3 Q And would you hold the same opinion for someone who
4 was working around personnel who installed and tore
5 out asbestos-containing products?
6 A Yes.
7 Q And, Doctor, are you familiar with any insulating
8 products that contain crocidolite asbestos?
9 A Sure.
10 Q What would those include, Doctor?
11 A There was pipe rounds, and there was block insulation
12 in the, I think it was in the 30s and 40s, that
13 contained crocidolite asbestos mainly made by Johns
14 Manville. And to find that out, or to be certain, you
15 would have to go back to the Johns Manville records or
16 their data sheets and indicate when they used
17 crocidolite in their thermal insulation because they
18 varied quite a bit. They used crocidolite, amosite,
19 and chrysotile, and I dont remember the exact dates
20 but you would have to look those up.
21 Although that was actually given in the MDL
22 hearing in Houston before Judge Davidson about two
23 years ago, that information was provided. I think it
24 was provided by Peter Krause. He actually showed a
25 slide on there of one of the JM products.

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1 Q Okay. Thank you, Doctor. I want to ask you now some
2 questions about Paragraph No. 3 in your expert report.
3 A Okay.
4 Q In your first sentence, again we talked about this,
5 you summarized your understanding that Mr. Young was
6 stated to have started smoking Kent cigarettes from
7 age 13 from approximately 1954 to 1956, approximately
8 ten cigarettes a day.
9 Did I read that correctly?
10 A You did.
11 Q Doctor, you dont know whether thats a correct
12 statement; is that right?
13 MR. MADEKSHO: Objection to form.
14 THE WITNESS: Theres no way that I
15 can verify it. I would say if you look at the date
16 that he was born, which is 1941, and add 13 to it that
17 would be 1954.
18 Q (By Mr. Cotton) And I dont mean to question your
19 math. You dont have personal knowledge obviously of
20 what Mr. Young smoked at any time?
21 MR. MADEKSHO: Objection to form.
22 THE WITNESS: I dont but, at least
23 the dates make sense with respect to what the time
24 period was. But I dont have any information,
25 personal information of whether he smoked Kent

139
1 cigarettes or for that matter any cigarette.
2 Q (By Mr. Cotton) And, Doctor, you would agree with me
3 memories can sometimes be inaccurate about dates for
4 things that occurred more than 50 years ago?
5 MR. MADEKSHO: Objection to form.
6 THE WITNESS: I agree with that.
7 Q (By Mr. Cotton) And you would agree also that
8 memories can also be subjective, wouldnt you?
9 MR. MADEKSHO: Objection to form.
10 THE WITNESS: Yes, I would agree
11 with that.
12 Q (By Mr. Cotton) Doctor, for the purpose of your
13 opinion in this case, you are assuming that Mr. Young
14 started to smoke Kent cigarettes at age 13 from
15 approximately 1954 to 1956; is that right?
16 MR. MADEKSHO: Object to form.
17 THE WITNESS: Yes.
18 Q (By Mr. Cotton) Doctor, for purposes of your opinion
19 in this case, you are assuming he smoked ten
20 cigarettes per day during that time; is that right?
21 MR. MADEKSHO: Object to form.
22 THE WITNESS: Thats what the
23 information I had was, yes.
24 Q (By Mr. Cotton) Okay. Doctor, assuming Mr. Young
25 smoked Kent cigarettes during the time the cigarettes

140
1 had an asbestos-containing filter, would the number of
2 cigarettes smoked matter?
3 A I would say that it would always matter in that all
4 asbestos-related diseases are dose response related,
5 so the more he smoked a Kent cigarette that contained
6 asbestos the greater his exposure to asbestos would
7 be.
8 I dont know if anybody knows exactly what the
9 minimum amount that it would talk to cause
10 mesothelioma, and in general I dont think anybody
11 knows that.
12 If you look at some of the epidemiology articles,
13 or the low ones like Rodelsperger, for example, or
14 Hodgson and Darnton and you assume what Rodelsperger
15 said is correct in there, you might be able to at
16 least give some type of an overall feeling about that.
17 And basically what you would do is, if its true
18 it takes 8,000 fibers to produce .1 fiber/cc years,
19 and he smoked these cigarettes at this rate, and you
20 had an idea how many puffs he took and how many
21 asbestos structures or fibers were in each puff, you
22 could maybe get a vague idea.
23 But its still very difficult to state that in any
24 individual person you know exactly how much asbestos
25 it took to cause their disease, like mesothelioma.

141
1 Thats something, in my opinion, that nobody basically
2 knows. All we know is that asbestos-related diseases
3 like mesothelioma are dose response related, and we
4 know people get asbestos-related diseases, and we know
5 people get asbestos-related diseases like mesothelioma
6 at low levels of exposure, medium levels, and high
7 levels of exposure. Why some people get them at
8 certain concentrations and others at other
9 concentrations, we dont understand that other than
10 its often referred to as individual susceptibility.
11 MR. COTTON: Did we mark the
12 affidavit earlier today?
13 MR. MADEKSHO: Yes. I think we
14 tried to mark it right after the report, the Ewing
15 report, so it would be right behind it.
16 Q (By Mr. Cotton) Doctor, I am handing you whats been
17 marked as Exhibit 7. Can you see thats an affidavit
18 signed by Mr. Young?
19 A Right.
20 Q Have you seen that affidavit before today?
21 A No, not that I know of.
22 Q Okay. Doctor, in this affidavit do you see that Mr.
23 Young talks about his recollection of his smoking
24 history?
25 A Yes.

142
1 Q Okay. And do you see that he stated that he smoked
2 approximately five per day during the week, and ten
3 per day during the weekend?
4 A Yes.
5 Q Further, I stated in my deposition during the summer
6 I smoked closer to ten cigarettes every day, do you
7 see that?
8 A Yes.
9 Q And, Doctor, is it your recollection that this
10 affidavit was also discussed in the report of Dr.
11 Ewing?
12 A Yes.
13 Q And do you recall, when did you first see the report
14 from Dr. Ewing?
15 A This morning.
16 Q Okay. Do you have any opinions one way or the other
17 regarding any of the opinions expressed in Dr. Ewings
18 report?
19 MR. MADEKSHO: Objection. Form.
20 THE WITNESS: No.
21 Q (By Mr. Cotton) Do you recall, Doctor, in the report
22 by Dr. Ewing that he had a chart that summarized what
23 he believed, based on this affidavit, was Mr. Youngs
24 total number of Kent cigarettes smoked?
25 A He did have a chart in there. I think it was on Page

143
1 5 or 6 — Page 4.
2 Q Doctor, if you assume that the summary of Mr. Youngs
3 smoking history reflected in Exhibit No. 7 is
4 accurate, would you then also — or would you then
5 agree that the summary provided by Dr. Ewing is an
6 accurate summary of the number of Kent cigarettes
7 reflected on Page No. 3?
8 A Yes.
9 Q Whats that?
10 A Oh, it just said 80 days of Lent, zero.
11 Q Just to make sure that question and answer was clear,
12 again, assuming that Mr. Youngs description of his
13 Kent smoking history was accurate in his affidavit
14 reflected in Exhibit No. 7, assuming thats correct,
15 the Table 1 in Mr. Ewings report, which is Exhibit 3
16 to our deposition today, titled Kent cigarette smoke
17 by Mr. Young, again assuming that the affidavit was
18 accurate, the total number of cigarettes summarized in
19 that chart, if you do the math, works out to 4,630
20 Kent cigarettes; is that right?
21 A Thats what it said, yes. I didnt do the math, but I
22 assume Mr. Ewing did the math, about two years, April
23 to March.
24 Q And, Doctor, you would agree that there are no
25 epidemiologic studies that look at a cohort of people

144
1 who smoked Kent cigarettes for only two years; is that
2 right?
3 A Thats correct.
4 Q And you cant say whether smoking Kent cigarettes for
5 two years like Mr. Young claims he did would be
6 sufficient to cause mesothelioma; is that right,
7 Doctor?
8 MR. MADEKSHO: Objection. Form.
9 THE WITNESS: I think what you cant
10 say is that there is no epidemiologic evidence that
11 there is an increased incidence of mesothelioma in
12 people that smoked Kent cigarettes during that time
13 period for two years. I think thats what the correct
14 statement would be.
15 Q (By Mr. Cotton) Doctor, in order to cause disease,
16 asbestos fibers must be respirable; is that right?
17 A Yes.
18 Q And, Doctor, you cannot provide an opinion as to the
19 approximate quantifiable dose of asbestos to which Mr.
20 Young was exposed to from Kent cigarettes; is that
21 right?
22 MR. MADEKSHO: Objection. Form.
23 THE WITNESS: Well, Im not sure if
24 thats correct or not. I think if you go back to the
25 basic idea of breathing, that you take about 16

145
1 breaths per minute, and that each breath is about 500
2 ccs, if thats — thats whats basically thought to
3 be the case. And obviously when people are smoking
4 and breathing, sometimes they are not going to be
5 doing both at the same time and they might be sucking
6 in cigarette smoke, maybe they are blowing it out, and
7 I think what has been done, and that would be what
8 Bill Longo tried to do with the smoking machine, tried
9 to figure out what was the total number of structures
10 that emanated from the micronite filter containing
11 asbestos during the process of smoking, based on the
12 machine apparatus.
13 Now I dont know if you could do it just by
14 looking at volume of — tidal volume, five hundred
15 times 16 is that amount of air. You would somehow
16 have to factor in there at what time he was inhaling,
17 what time he was exhaling, and I dont know if you
18 could get an exact number.
19 I think you probably would be better off looking
20 at Longos data to getting an overall idea what that
21 number was, and thats about as good as you can do. I
22 doubt if you could get any accurate calculated
23 concentrations of how many crocidolite fibers he was
24 exposed to just by knowing what we know from the
25 number he smoked and the puffs he did.

146
1 But if you make certain assumptions like Mr. Ewing
2 did, I think you probably can come up with what he
3 stated.
4 Q Doctor, let me ask you this. Today, can you provide
5 an opinion as to the approximate quantifiable dose of
6 asbestos to which Mr. Young was exposed to from Kent
7 cigarettes?
8 MR. MADEKSHO: Objection. Form.
9 THE WITNESS: I cant do it today.
10 It would take me some time to look over that. I would
11 have to study that over and see exactly how Mr. Ewing
12 actually made that calculation. I would have to do
13 that before I could determine any dose.
14 Q (By Mr. Cotton) At this point, Doctor, you are not
15 offering an opinion in that regard?
16 MR. MADEKSHO: Objection. Form.
17 THE WITNESS: I havent been asked
18 to offer an opinion about that, but that is something
19 I probably would do, and probably should do, I mean,
20 to at least get an idea of how much he was exposed to
21 because thats an important issue.
22 Q (By Mr. Cotton) So you have not yet formulated that
23 opinion?
24 A I have not yet formulated that opinion with respect to
25 a precise number, no, a precise concentration. And I

147
1 think what you would really want to probably find out
2 is what was his exposure to crocidolite asbestos from
3 his smoking habit, or exactly what he smoked during
4 that time period, and thats what you would try to
5 figure out. And you probably could come up with at
6 least an idea.
7 Q What would be the basis for that type of opinion?
8 A Well, again, the more you are — the more that you are
9 exposed to asbestos the greater your risk of getting a
10 disease like mesothelioma. And mesothelioma is the
11 disease that takes the least amount of asbestos to
12 produce, so thats what you would be looking for.
13 And I dont know how precise you could be with
14 respect to exactly what concentration he was exposed
15 to. And Im not sure exactly even how you would –
16 and what type of units you would actually put that
17 concentration in.
18 I mean, I think what Ewing did was probably the
19 best way, and that is to try to basically try to
20 figure out, if you could, how many crocidolite
21 asbestos fibers he inhaled per puff of cigarette, and
22 that would probably be the most precise way.
23 And then he talked about how many times he — how
24 many puffs he took on the cigarette, and that would
25 probably be the most accurate way that I could see

148
1 just looking at the information, at least as I sit
2 here right now.
3 Q And to be fair to you, Doctor, you have only seen the
4 Ewing report within the last nine hours; is that
5 right?
6 A Right. And thats why I would want to review it some
7 more and see if I could come up with basically the
8 same conclusion and numbers he did with respect to
9 fibers.
10 Q And, Doctor, since you only recently have seen it
11 today, that is Mr. Ewings report, you are not
12 prepared to offer an opinion one way or the other
13 whether the methodology and calculations Mr. Ewing
14 used were appropriate; is that fair?
15 A Thats fair. I would like to study this over and see
16 if I would evaluate it the same way he would.
17 Q Okay. And again, as we established, you dont have an
18 opinion one way or the other today as to the
19 sufficiency of that calculation?
20 A Well, I dont know if we are going to be able to get
21 into exactly what is sufficient because I think that
22 is where you almost always get into a problem with
23 respect to mesothelioma and asbestos, and that assumes
24 you know what is sufficient, and I dont think anybody
25 knows that for any individual person.

149
1 I think the amount of asbestos it takes to cause
2 mesothelioma in any given individual probably is more
3 important on that individuals susceptibility more
4 than anything else, but obvious dose is an issue. And
5 the more you are exposed the greater your risk, but
6 you still dont know — its the same thing with the
7 insulators, for example. If you look at all of the
8 insulators, about ten percent of those people died
9 from mesothelioma. And the most obvious question to
10 ask is, why didnt all of them die from mesothelioma
11 if they were exposed to the same dose.
12 And the answer to that question is because there
13 apparently is individual susceptibility to the
14 carcinogenic effect of asbestos with respect to its
15 causation of mesothelioma. And I think that would be
16 in almost any setting there would be, both high
17 settings — both high exposures to asbestos and
18 probably low exposures to asbestos.
19 Its really hard to know because individual
20 susceptibility suggests that you are never going to
21 know because you dont know exactly what that
22 susceptibility is. I think what you could do is what
23 Mr. Ewing did try to do and figure out, based on the
24 information that he gave, how many puffs he took of
25 the cigarette per unit time, you could come up with at

150
1 least a number of fibers that he may have inhaled into
2 his lung. And then you could maybe come up with at
3 least kind of the total amount that he would have over
4 those two years.
5 But — but Im not prepared to say that right now.
6 All Im prepared to say right now is that mesothelioma
7 is dose response related, there are many cases of
8 mesothelioma that have been recorded at very low
9 levels of concentration.
10 The Hodgson and Darnton epidemiology article
11 published in 2000 actually gives some numbers with
12 respect to how low a concentration can be that still
13 causes an excess number of mesothelioma. And that if
14 you look at Wittenoom numbers, and Dr. Rogglis
15 editorial, I think there is pretty good evidence it
16 takes relatively small doses of crocidolite asbestos
17 to cause mesothelioma again in some people.
18 Q And thats the individual susceptibility point you
19 were making earlier?
20 A Right. If you look at Wittenoom, for example, thats
21 the same thing. Of those bystanders, why didnt they
22 all get it? If some of them got it at that dose, why
23 didnt others get it at that dose?
24 Q Doctor, would it be fair to say that because you cant
25 provide an opinion as to the approximate quantifiable

151
1 dose to which Mr. Young was exposed to from Kent
2 cigarettes, you cant say the dose was necessarily a
3 substantial contributing factor in his disease?
4 MR. MADEKSHO: Objection. Form.
5 THE WITNESS: I think I can because
6 I think that is a real exposure that is definitely
7 above background. Its an exposure he wouldnt
8 normally have experienced had he not smoked Kent
9 cigarettes. And to me, thats just part of the
10 contribution of asbestos that went — that contributed
11 to cause his overall dose that caused his
12 mesothelioma. Thats how I would at least evaluate
13 his situation.
14 Q (By Mr. Cotton) Doctor, is your opinion based in part
15 on your belief that any exposure to asbestos
16 contributes to cause the disease?
17 MR. MADEKSHO: Objection to form.
18 MR. LABOON: Objection. Form.
19 THE WITNESS: No, I dont really
20 believe that. I think, for example, if there is
21 asbestos in this air I think it would be too miniscule
22 to contribute to mesothelioma. I dont think that
23 would happen. Thats why I think that exposure he had
24 from smoking Kent cigarettes is really much, much
25 above background levels. And I would only consider an

152
1 exposure above background, either in an occupational
2 or bystander setting, and this is even kind of a
3 unique setting that he have would have. I wouldnt
4 consider it an occupational setting. I wouldnt
5 consider it a bystander setting. Its a type of
6 setting in which hes exposed to asbestos as a very
7 unusual situation.
8 Q (By Mr. Cotton) And I think its clear from what you
9 just said, Doctor, but just to make sure it is, you
10 would agree that Mr. Youngs alleged exposure to Kent
11 cigarettes would need to be above background for the
12 alleged exposure to contribute mesothelioma?
13 A Thats what I think in general with respect to all
14 exposures, they have to be above background, but
15 background is basically ten to the minus fourth, ten
16 to the minus fifth fibers, incredibly low
17 concentrations.
18 But, I mean, usually when you look at occupational
19 or bystander exposures or this type of exposure, I
20 think those are so much above background that thats
21 hardly an issue.
22 Q Doctor, are you assuming that Mr. Youngs exposure to
23 asbestos from Kent cigarettes, if any, was above
24 background levels?
25 A Absolutely.

153
1 Q Are you also assuming that to form — strike that.
2 Are you also assuming, as part of your opinions,
3 that Mr. Youngs alleged exposure to asbestos from
4 Kent cigarettes was above the OSHA standard?
5 A The OSHA standards when he was actually smoking that?
6 That would be something I would have to look up.
7 For the OSHA standard now, I would say absolutely yes.
8 But the OSHA standard in 1954 –
9 Q Would there be an OSHA standard in 1954, Doctor?
10 A I dont think so, but I just want to check. I dont
11 think the OSHA standard came in until about 1968.
12 No, it wouldnt have been in effect at that time
13 period.
14 Q Okay. Let me ask you a little differently. Are you
15 assuming that Mr. Young was exposed to asbestos from
16 Kent cigarettes above the current OSHA PEL?
17 A I think he would have been, yes.
18 MR. MADEKSHO: Objection. Form.
19 Q (By Mr. Cotton) And, Doctor, with respect to your
20 assumption that Mr. Youngs exposure, if any, to
21 asbestos fibers from Kent cigarettes was above
22 background levels, whats the basis for that
23 assumption?
24 A Based on the assumption of — that assumption is the
25 fact that the background level is incredibly low at

154
1 this point in time. It ranges from zero to about ten
2 to the minus fourth, ten to the minus fifth fibers/cc
3 of air in 48 major cities in the United States, so
4 its almost nil.
5 And I think smoking Kent cigarettes that contained
6 ten milligrams of crocidolite asbestos that was –
7 some of which was released into the air that he sucked
8 into his lungs, that that would be way above what
9 would be background at this point in time.
10 Q So, Doctor, you are assuming that respirable asbestos
11 fibers were released; is that right?
12 A Yes.
13 Q Whats the basis of that assumption?
14 A The basis that they were identified many years ago
15 when the micronite filters were being at least
16 evaluated, and based on Bill Longos article.
17 Q Does anything else form the basis for that opinion?
18 A No, those would be the main things.
19 And I guess the other thing would be that Dr.
20 Dodson and I have seen cases where we have analyzed
21 lung tissue and lymph node tissue, and the only type
22 of exposure was from that type of activity. And if it
23 turns out that that is correct then the only source
24 would be from the Kent cigarettes.
25 Q Thats an important assumption; is that right, Doctor?

155
1 A It is an important assumption, but on the other hand,
2 when you start looking at how many things contained
3 crocidolite asbestos, there are some gaskets that are
4 used for acid lines that contained crocidolite. There
5 is thermal insulation that contained crocidolite, at
6 least produced by JM at certain periods of time.
7 There have been some transite boards, transite siding
8 that contained crocidolite, but even there you have to
9 look at the spec sheet to make sure it was crocidolite
10 and not chrysotile or a combo, and asbestos-containing
11 cement pipe contained crocidolite. I didnt see any
12 evidence that he was exposed to those things.
13 And this other case that we had, the one we
14 reported of this woman, I didnt see — we didnt have
15 any evidence that she was exposed to any other
16 crocidolite-containing product or substance based on
17 the information we had.
18 Q Okay. But in terms of published studies, Doctor, is
19 Dr. Longos study the only one upon which you rely for
20 your assumption that exposure to any asbestos released
21 from Kent cigarettes was above background level?
22 A I dont know if he — as far as the ones that I can
23 think of, thats the only one I think of where they
24 actually did a study where they tried to determine how
25 many structures were in the cigarette smoke.

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1 And if you assume thats the case, that what he
2 found was true, then I would say the answer is
3 probably yes. I dont know of any other ones other
4 than that.
5 Q And you agree, Doctor, you mentioned the Fullam
6 studies a moment ago, do you recall that?
7 A Yes.
8 Q Do you agree, Doctor, those studies didnt quantify
9 the release of asbestos from Kent cigarettes?
10 A They did not quantify it. They just showed the
11 electron micrographs that had the long, thin fibers.
12 Thats all I saw anyway at least in the electron
13 micrographs that I had to look at.
14 Q And, Doctor, the case studies that you are referring
15 to, including the one on which you published an
16 article, none of those studies, whether published or
17 in the course of your work on litigation cases, were
18 intended to, or did quantify the release of asbestos
19 from Kent cigarettes, correct?
20 A Thats correct, we did not do that. That is correct.
21 Q Whats your basis for assuming that exposure to
22 asbestos, if any, released from Kent cigarettes was
23 above the current OSHA PEL?
24 A The current OSHA PEL is incredibly low, .1 fiber/cc of
25 air for time weighted — eight-hour time weighted

157
1 average. I think thats a very, very low level, and I
2 think there would be far more fibers emitted in Kent
3 cigarettes than that.
4 Q And again, Doctor, the basis for that assumption would
5 be again exclusively the study by Dr. Longo that
6 you –
7 A Well, that would be the one where they tried to really
8 talk about how many structures were released using a
9 smoking machine. How that closely — how closely that
10 resembles to a human, Im not sure I know, but the
11 basic idea is to try to recapitulate the way people
12 smoke with respect to how many fibers are released
13 from the cigarette. Thats what you are trying to
14 figure out.
15 Q Other than that study published by Dr. Longo, do you
16 use anything else as the basis for your opinion that
17 exposure to asbestos, if any, from Kent cigarettes was
18 above the current OSHA PEL?
19 MR. MADEKSHO: Objection. Form.
20 THE WITNESS: Not specifically, no.
21 Q (By Mr. Cotton) And, Doctor, you would agree that if,
22 assuming that the reliability of Dr. Longos study on
23 which you rely is found to be unreliable, then the
24 ultimate conclusion that you have with respect to
25 exposure above background or exposure above the OSHA

158
1 PEL would also then be brought into question, correct?
2 MR. MADEKSHO: Objection. Form.
3 THE WITNESS: To a certain degree,
4 yes. But the OSHA PEL doesnt really say — and
5 thats what we talked about, I guess, in the
6 deposition this morning. The PEL doesnt really say
7 that is the lowest level below which mesothelioma will
8 not exist. What its saying is that at that level
9 there will be relatively few cases of mesothelioma and
10 people can still have jobs, and its always been a
11 trade off.
12 And with respect to .1 fiber/cc years of exposure,
13 at least from extrapolation data, Nicholson stated
14 that at that level there were seven cases of
15 mesothelioma per year at that level, per 100,000
16 people, which is way above what would be considered
17 background level of mesothelioma in the United
18 States.
19 Q (By Mr. Cotton) Now, Doctor, assuming Mr. Young was
20 not exposed to asbestos from smoking Kent cigarettes,
21 then Kent cigarettes were not a substantial factor in
22 causing his mesothelioma, correct?
23 A Thats correct.
24 Q And assuming, Doctor, that Kent cigarettes did not
25 release respirable asbestos fibers, then Kent

159
1 cigarettes were not a substantial factor in causing
2 his mesothelioma; is that right?
3 MR. MADEKSHO: Objection to form.
4 THE WITNESS: That would be correct,
5 yes.
6 Q (By Mr. Cotton) And, Doctor, am I right that you are
7 assuming that Mr. Young was exposed to respirable
8 asbestos fiber from Kent cigarettes, right?
9 A That is correct.
10 MR. MADEKSHO: Objection.
11 THE WITNESS: That is correct.
12 Q (By Mr. Cotton) And that is based entirely again on
13 the Longo published study that we talked about a
14 moment ago; is that right?
15 MR. MADEKSHO: Objection. Form.
16 THE WITNESS: Its based on that,
17 but its also from the Fullam Lab, the fact that they
18 just identified the fibers in the cigarette smoke to
19 me is highly significant because that means they are
20 released. I mean, if they were stable in that filter,
21 then the basic idea what they were going to do was
22 actually good, and that is they were going to filter
23 out the particulates.
24 And actually, the diameter of those fibers was
25 basically about the same diameter as most of the

160
1 particulates in cigarette smoke. But its my
2 understanding from Fullam that they identified the
3 fibers in the cigarette smoke by electron microscopy.
4 What Dr. Longo did is actually take it one step
5 further, and used a cigarette-smoking machine and
6 found that there was fibers released from the filter
7 when the cigarette-smoking machine was used.
8 Q (By Mr. Cotton) Other than the Fullam study that you
9 just referenced and Dr. Longos published study that
10 you just referenced, is there anything else that forms
11 the basis of your assumption that Kent — let me back
12 up.
13 Other than the Fullam study that you just
14 referenced, and the published paper by Dr. Longo, are
15 you relying on anything else for your assumption that
16 Mr. Young was exposed to respirable asbestos from Kent
17 cigarettes?
18 A I think one other thing, and thats the case report
19 that Dr. Dodson and I reported of that woman who
20 developed mesothelioma, who basically we found the
21 crocidolite asbestos in, and that was the only source
22 that we could find. And if that is factually correct,
23 which we think it is, then that would be evidence that
24 the source of the crocidolite in her lung tissue and
25 lymph node tissue was from the Kent cigarettes, and

161
1 that would suggest that her disease, mesothelioma, was
2 caused by asbestos that came from the cigarette filter
3 of Kent.
4 Q Other than the papers now that we have talked about,
5 including the Fullam report, Dr. Longos published
6 study, and your case study that you just described,
7 are your relying on anything else for your assumption
8 that Mr. Young was exposed to respirable asbestos
9 fibers from Kent cigarettes?
10 A No.
11 MR. MADEKSHO: Objection. Form.
12 THE WITNESS: No.
13 Q (By Mr. Cotton) We have agreed already, Doctor, that
14 the case study that you and Dr. Dodson did did not
15 measure asbestos fibers released from any product,
16 much less than cigarettes?
17 A It didnt, but that doesnt matter. At least in my
18 opinion, it doesnt matter. Because what you are
19 really interested in in that case report is the fact
20 you found asbestos in lung tissue and lymph node
21 tissue, and that means the crocidolite was
22 translocated from the lung to the lymph node, and you
23 could say that thats exactly what happens in
24 mesothelioma. The asbestos is translocated from the
25 lung to the pleura or the peritoneum where the tumor

162
1 actually begins.
2 So finding that in that woman is highly
3 significant with respect to the fact that at least we
4 know from the information we have that that was the
5 source of the crocidolite asbestos, and that it was
6 able to get into the lung, which is very important,
7 and it was able to at least translocate to a lymph
8 node, which would suggest that it would also be able
9 to translocate to the pleura.
10 Q Doctor, you are assuming that the amount of respirable
11 asbestos that was released from Kent cigarettes was
12 sufficient to cause mesothelioma; is that right?
13 A Yes.
14 Q And, Doctor, if that assumption turns out to be
15 incorrect, then you cannot offer an opinion as to
16 whether Kent cigarettes caused any mesothelioma; is
17 that right?
18 A That would probably be true, yes. I mean, if I didnt
19 think that was correct, that would be true.
20 Q And, Doctor, we may have already covered this, and if
21 we did, I apologize, but the current OSHA PEL is
22 .1 fibers/cc; is that right?
23 A Yes, .1 fiber/cc air, eight-hour time weighted
24 average.
25 Q And, Doctor, its your opinion, is it not, that you

163
1 are not able to state with a reasonable degree of
2 medical certainty that if someone is exposed on a time
3 weighted average to less than .1 fibers/cc that a
4 person would be at a measurable increased risk of
5 developing mesothelioma?
6 A Well, I think if you use the Rolland abstract and also
7 the Rodelsperger, but not the Iwatsubo, that those two
8 case control epidemiologic studies would suggest that
9 less than that would be necessary. And thats how low
10 its gotten with respect to at least the studies that
11 have been done that have tried to look at that. And
12 there is some problems with those studies, but at
13 least the best that they can do, that there are excess
14 numbers of mesothelioma reported that occur at total
15 fiber/cc concentrations of less than .1. And that
16 would be the Rolland at 0.07, and then Rodelsperger is
17 between zero and 0.15.
18 Q But, Doctor, you mentioned there are problems with
19 those studies; is that right?
20 A Well, there is always problems with epidemiology
21 studies. And you can read those articles, but that is
22 kind of the basic premise. And that would also
23 reinforce what Dr. Nicholson and also Hodgson and
24 Darnton have calculated based on extrapolation
25 studies, is that those levels like setting the PEL

164
1 at .1, for example, that was based on, I think, four
2 epidemiology studies that Dr. Nicholson looked at when
3 he wrote the information that was published in the
4 Federal Register in 1986.
5 And I think now that has been supported by what
6 has actually been found in humans by Dr. Rolland, Dr.
7 Rodelsperger, and also to Iwatsubo, but Iwatsubo level
8 is higher.
9 Q And, Doctor, I will agree with you that there can be
10 problems with studies. In your view, what are the
11 problems with the studies that you just described?
12 A Well, I think one of the problems with the studies is
13 that even though its a real people type case control
14 studies, its still difficult to determine exactly how
15 much they were exposed to. And its also difficult to
16 know exactly at what level do you cut off the
17 exposure.
18 For example, in a case like Mr. Young, he was
19 diagnosed in 2007, and you could say that the first
20 cancer cell probably was in existence in 1997, maybe
21 as early as 1992. And then any exposure after 1992
22 was probably not important because the first cancer
23 cell had already started to exist and already
24 proliferating. Thats always a problem because you
25 dont know exactly what the cutoff is.

165
1 And there is the problems again when they are not
2 the extrapolation, the retrospective extrapolation
3 with respect to the epidemiology studies is correct or
4 not correct. But at least in Iwatsubo, for example,
5 they used five different industrial hygienists to
6 evaluate the data.
7 So I think they do as good as they can do with the
8 information they have. And thats what they basically
9 use to come to these conclusions with respect to what
10 the PEL should be.
11 Because in extrapolation data, like in Nicholson
12 when he wrote in that, and thats what the PEL was, is
13 that there was never a group of people that they
14 examined that were exposed to only that level. It was
15 purely extrapolation from higher levels to lower
16 levels, assuming usually that it was a linear
17 extrapolation and that you find the same incidence of
18 mesothelioma at lower levels of concentration as you
19 would in high, and that seems to what we see.
20 Q But you agree, Doctor, making that sort of linear
21 extrapolation from a larger number to a smaller number
22 is difficult to do with any degree of confidence?
23 A I would say thats probably true. And there, I guess,
24 you get into the whole issue about p-values, and what
25 the chance is if something happened by chance alone

166
1 versus being real science. And its a hard thing to
2 do, but people do it, and they make decisions based on
3 it.
4 Q And would you agree that, Doctor, coming back to some
5 of the problems with the studies, that that would be
6 another one of the problems with those studies?
7 A Well, there is potential problems in that type of
8 study, but I guess you have to figure out does the
9 data that they have, and the extrapolations that they
10 do, is that more scientifically correct than the
11 potential problems? And I think they look at that and
12 they indicate what the potential problems are and they
13 make the conclusions based on all of the information
14 available.
15 Q Doctor, you would agree that persons breathe about 20
16 million ccs of air each day?
17 A You know, I would have to calculate it. Lets see,
18 its about 500 breaths per — its 500 ccs per
19 breath, 16 breaths –
20 MR. LABOON: Do you want a
21 calculator?
22 THE WITNESS: Yes. Multiply 500
23 times 16, and thats — so five, that would be a
24 minute, so there is 60 minutes in an hour, so its
25 times 60.

167
1 MR. LABOON: 480,000.
2 THE WITNESS: Okay. Then multiply
3 by 24 because of 24 hours in a day. And you said in a
4 year?
5 Q (By Mr. Cotton) Yes.
6 A Then you multiply 365 by that.
7 MR. LABOON: Okay. So its
8 11,520,000. That was the — and what was the next
9 number?
10 THE WITNESS: So we got to the
11 number of hours in a day, which is 24, and then we got
12 24 hours in a day, and there is 365 days in a year.
13 MR. LABOON: So times 365?
14 THE WITNESS: Yes, and that would be
15 the number in a year.
16 MR. LABOON: My calculator doesnt
17 go that high.
18 Q (By Mr. Cotton) Let me ask you this, Doctor. You
19 previously testified that a person breathes about 20
20 million ccs a year. Do you have any reason to
21 disagree with your prior testimony on that?
22 A Probably not, no.
23 Q Thank you. Let me ask you, if Mr. Youngs only
24 exposure to asbestos was during his time serving in
25 the military, would that have been sufficient to cause

168
1 mesothelioma?
2 MR. MADEKSHO: Object to the form.
3 MR. LABOON: Object to form.
4 THE WITNESS: I cant answer that
5 question. I would say potentially yes, but you never
6 know. Its like the same type of thing, if you took
7 away one exposure, would he still get the disease? I
8 mean, who knows. Would the exposure he had in the
9 military be enough? Basically its always the same
10 answer, who knows. Its impossible to say.
11 Q (By Mr. Cotton) And, Doctor, I think I know the
12 answer to the next question, but I will ask it anyway.
13 If Mr. Youngs only exposure to asbestos was during
14 his time working at Fort Sam Houston, would that have
15 been sufficient to cause his disease?
16 MR. MADEKSHO: Objection to form.
17 MR. LABOON: Objection. Form.
18 Q (By Mr. Cotton) Same answer, Doctor?
19 A Same answer, yes.
20 Q Was Mr. Youngs exposure to asbestos during his time
21 in the military in and of itself sufficient to cause
22 mesothelioma?
23 MR. MADEKSHO: Objection to form.
24 THE WITNESS: Same answer.
25 Q (By Mr. Cotton) Was Mr. Youngs exposure to asbestos

169
1 during his time working at Fort Sam Houston in and of
2 itself sufficient to cause his mesothelioma?
3 MR. LABOON: Objection to form.
4 MR. ROYER: Object to form.
5 THE WITNESS: Same answer.
6 Q (By Mr. Cotton) If Mr. Young was incorrect about
7 having smoked Kent cigarettes during the limited time
8 that they had asbestos-containing filters, what would
9 have been the cause of his mesothelioma?
10 A It would have been those other exposures.
11 Q And if Mr. Young smoked Kent cigarettes after the
12 relevant time period, what would have been the cause
13 of his mesothelioma?
14 A The other exposures.
15 Q And, Doctor, the other exposures that you are
16 referring to are those that are detailed in your
17 report in the discovery thats taken place in this
18 case; is that right?
19 A Yes.
20 Q Doctor, if Mr. Young smoked five Kent cigarettes per
21 day during the relevant time period when they had
22 asbestos-containing filters for two years, would that
23 have been sufficient to cause his disease?
24 A Same answer, who knows.
25 Q If Mr. Young smoked ten cigarettes per day during the

170
1 time period they contained an asbestos-containing
2 filter, would that be sufficient to cause his disease?
3 A Again, who knows. You can say theres always a better
4 chance that they wont get mesothelioma than they
5 will, but there is a certain number of people who do
6 get mesothelioma at certain concentrations of
7 asbestos, both low and high, and it gets down to a
8 situation where you just really dont — there is no
9 way to know.
10 If you knew exactly how much it took in each
11 individual person, and you could accurately figure out
12 exactly how much a person was exposed to, then you
13 could answer those questions, but at this point in
14 time we dont know the answers to those questions.
15 Q (By Mr. Cotton) Thank you, Doctor.
16 In 2005 you were asked whether if someone is
17 exposed to 60 asbestos fibers per day, would that be
18 sufficient to cause mesothelioma, and you said it was
19 unlikely.
20 A Yes, and I would say the same thing today, its
21 unlikely.
22 Q And, Doctor, you also said that it would be unlikely
23 for an exposure of a million fibers a day to cause
24 mesothelioma. Do you agree with that?
25 A Its always going to be unlikely because at the really

171
1 high levels its still unlikely because even though no
2 matter how high you get, its still more likely you
3 will not get mesothelioma than you will. So you can
4 always answer those questions, almost any of those
5 questions no matter how high the dose is, by saying
6 its unlikely because it is unlikely.
7 Q And, Doctor, what percent of mesotheliomas in the
8 United States are — mesotheliomas in men in the
9 United States are idiopathic?
10 A Ten percent is the number that is generally given from
11 the SEER data. I dont know if we really know the
12 answer, but that would be the most common number.
13 Q Doctor, when you are asked to evaluate a case, how do
14 you rule out idiopathic mesothelioma?
15 A I think you can do it various ways. I think first of
16 all, if you apply the Helsinki Consensus Report,
17 thats one way. And I would say again, if we go over
18 that again, say a person has a history of occupational
19 or bystander exposure to asbestos, you have elevated
20 concentrations of asbestos in your lung tissue or some
21 other type of tissue, or if you find asbestos bodies
22 in histologic sections of lung tissue, or if you have
23 asbestosis radiographically or pleural plaques, or if
24 you had a reliable history of exposure.
25 Now if none of those applied to the person, then I

172
1 would say that based on that information you had, you
2 could say it was idiopathic with the understanding
3 that there is a chance that if you were to do a fiber
4 analysis that in a certain percentage of those cases,
5 and in Australia where they have done this, it would
6 be probably about ten percent that you would find
7 elevated concentrations of asbestos fibers in those
8 people who claimed they had never been exposed to
9 asbestos.
10 Q Okay.
11 MR. LABOON: That ten percent figure
12 is for pleural mesos, right?
13 THE WITNESS: Yes. Peritoneal meso
14 is a whole different issue, whole different numbers.
15 Q (By Mr. Cotton) Doctor, I am going to ask you some
16 questions just very briefly about some of the other
17 parties involved in this case just to see whether you
18 have any opinions one way or the other.
19 A Okay.
20 Q Very brief.
21 A All right.
22 Q A couple of questions for each.
23 A All right.
24 Q And then I am going to move on to something else very
25 quickly, okay, Doctor?

173
1 A Okay.
2 MR. MADEKSHO: For the purposes of
3 the record, I have stated my objection as to the
4 sufficiency of the discovery that certain defendants
5 that I feel may be treated in this line of questioning
6 and have given, and so subject to that objection that
7 I stated in the beginning of the deposition, I would
8 like that to be understood at the time you ask the
9 questions.
10 MR. LABOON: I am going to make Mr.
11 Royers objections as far as –
12 MS. HANSARD: I think one objection
13 is good for all defendants.
14 MR. LABOON: Would you make that
15 stipulation again?
16 MR. MADEKSHO: You know what, why
17 dont we do this. Agree all parties in this
18 deposition to be conducted pursuant to Texas Rules of
19 Civil Procedure. We agree that one objection is good
20 for all, and 21 days to read and sign.
21 MR. LABOON: You need to be here.
22 Q (By Mr. Cotton) I was telling Dr. Hammar that I am
23 going to ask a couple — literally a couple of quick
24 questions about some of the other parties in this case
25 and move on to something else very quickly.

174
1 Doctor, have you reviewed any evidence regarding
2 exposure by Mr. Young to any product manufactured
3 distributed or sold by Ajax Boilers?
4 A No.
5 Q And, Doctor, you cannot quantify the approximate dose,
6 if any, to which Mr. Young was exposed from any
7 product manufactured, distributed, sold, or used by
8 Ajax Boilers; is that right?
9 A That is –
10 MR. ROYER: Objection to the form.
11 Lacks foundation.
12 THE WITNESS: Thats correct.
13 Q (By Mr. Cotton) Doctor, have you reviewed any
14 evidence regarding exposure by Mr. Young to any
15 product manufactured, districted, sold, or used by
16 American Standard Inc. individually or formerly known
17 as Kewanee Boiler?
18 A No.
19 Q So, Doctor, you cannot quantify the approximate dose,
20 if any, to which Mr. Young was exposed from any
21 product manufactured, distributed, sold, or used by
22 American standard Inc. individually formerly known as
23 Kewanee Boiler?
24 A That is correct.
25 Q Doctor, have you reviewed any evidence regarding

175
1 exposure by Mr. Young to any product manufactured,
2 distributed, sold, or used by Cleaver Brooks, a
3 division of Aqua Chem Inc.?
4 A No.
5 Q So, Doctor, you cannot quantify the approximate dose,
6 if any, to which Mr. Young was exposed from any
7 product manufactured, distributed, sold, or used by
8 Cleaver Brooks, a division of Aqua Chem Inc.; is that
9 correct?
10 A That is correct.
11 Q Doctor, have you reviewed any evidence regarding
12 exposure by Mr. Young from any product manufactured,
13 distributed, sold, or used by Burnham Corporation?
14 A No.
15 Q So, Doctor, you cannot quantify the approximate dose,
16 if any, to which Mr. Young was exposed to any product,
17 manufactured, distributed, sold, or used by Burnham
18 Corporation; is that right?
19 A That is correct.
20 Q Doctor, have you reviewed any evidence regarding
21 exposure by Mr. Young to any product manufactured,
22 distributed, sold, or used by Clark Reliance Corp.?
23 A No.
24 Q So, Doctor, you cannot quantify then can you, Doctor,
25 the approximate dose, if any, to which Mr. Young was

176
1 exposed to any product manufactured, distributed,
2 sold, or used by Clark Reliance Corp.?
3 A That is correct.
4 Q Doctor, have you reviewed any evidence regarding
5 exposure by Mr. Young to any product manufactured,
6 distributed, sold, or used by Crane Company?
7 A No.
8 Q So, Doctor, you cannot quantify the approximate dose,
9 if any, to which Mr. Young was exposed to any product
10 manufactured, distributed, sold, or used by Crane
11 Company?
12 A That is correct.
13 Q Doctor, have you reviewed any evidence of any exposure
14 by Mr. Young to any product manufactured, distributed,
15 sold, or used by Colton Boilerworks Inc.?
16 A No.
17 Q So, Doctor, you cannot quantify the approximate dose,
18 if any, to which Mr. Young was exposed to any product
19 manufactured, distributed, or sold by Colton
20 Boilerworks Inc.?
21 A That is correct.
22 Q Doctor, have you reviewed any evidence regarding
23 exposure by Mr. Young to any product manufactured,
24 distributed, sold or used by Garlock Inc.?
25 A No.

177
1 MR LABOON: Object to form.
2 Q (By Mr. Cotton) So, Doctor, you cant quantify the
3 approximate dose, if any, to which Mr. Young was
4 exposed to any product manufactured, distributed, sold
5 or used by Garlock Inc.; is that right?
6 MR. LABOON: Same objection.
7 THE WITNESS: That is correct.
8 Q (By Mr. Cotton) Doctor, have you reviewed any
9 evidence regarding exposure by Mr. Young to any
10 product manufactured, distributed, sold, or used by
11 Garlock Sealing Technologies LLC?
12 A No.
13 MR. LABOON: Objection to form.
14 Q (By Mr. Cotton) Doctor, you cannot quantify then can
15 you Doctor — let me start that over.
16 You cannot quantify the approximate dose, if any,
17 to which Mr. Young was exposed from any product
18 manufactured, distributed, sold, or used by Garlock
19 Sealing Technologies LLC; is that right?
20 A That is correct.
21 MR. LABOON: Object to form.
22 THE WITNESS: That is correct.
23 Q (By Mr. Cotton) Doctor, have you reviewed any
24 evidence regarding exposure by Mr. Young, if any, to
25 any product manufactured, distributed, sold, or used

178
1 by Guardline Inc.?
2 A No.
3 Q So, Doctor, you cannot quantify the approximate dose,
4 if any, to which Mr. Young was exposed to any product
5 manufactured, distributed, or sold by Guardline Inc.;
6 is that right?
7 A That is correct.
8 Q Doctor, have you reviewed any evidence regarding
9 exposure by Mr. Young to any product manufactured,
10 distributed, sold, or used by JL Power Associates?
11 A No.
12 Q So, Doctor, you cannot quantify the approximate dose,
13 if any, to which Mr. Young was exposed to any product
14 manufactured, distributed, sold, or used by JL Power
15 Associates; is that right?
16 A That is correct.
17 Q Doctor, have you reviewed any evidence regarding
18 exposure by Mr. Young to any product manufactured,
19 distributed, sold, or used by 3M Corp, formerly known
20 as Minnesota Mining and Manufacturing Company?
21 A No.
22 Q So, Doctor, you cant quantify the approximate dose to
23 which Mr. Young was exposed from any product
24 manufactured, distributed, sold, or used by 3M Corp.,
25 formally known as Minnesota Mining and Manufacturing

179
1 Company; is that right?
2 A That is correct.
3 Q Doctor, have you reviewed any evidence regarding
4 exposure by Mr. Young, if any, to any product
5 manufactured, distributed, sold, or used by Oakfabco
6 Inc., formerly known as Kewanee Boiler Corporation?
7 A No.
8 Q So, Doctor, you cannot quantify the approximate dose,
9 if any, to which Mr. Young was exposed to any product
10 manufactured, distributed, sold, or used by Oakfabco
11 Inc., formerly known as Kewanee Boiler Corporation?
12 A Thats correct.
13 Q Doctor, have you reviewed any evidence regarding
14 exposure by Mr. Young to any product manufactured,
15 distributed, sold, or used by Penco Corp.?
16 A No.
17 Q So, Doctor, you cannot quantify the approximate dose,
18 if any, to which Mr. Young was exposed to any product
19 manufactured, distributed, sold, or used by Penco
20 Corp.; is that right?
21 A That is correct.
22 Q Doctor, have you reviewed any evidence regarding
23 exposure by Mr. Young, if any, to any product
24 manufactured, distributed, sold, or used by Rheem
25 Manufacturing Company Inc.?

180
1 MS. HANSARD: Object to form.
2 THE WITNESS: No.
3 Q (By Mr. Cotton) So, Doctor, you cannot quantify the
4 approximate dose, if any, to which Mr. Young was
5 exposed to any product manufactured, distributed,
6 sold, or used by Rheem Manufacturing Company Inc.?
7 MS. HANSARD: Objection to form.
8 THE WITNESS: That is correct.
9 Q (By Mr. Cotton) Doctor, have you reviewed any
10 evidence regarding exposure by Mr. Young to any
11 product manufactured, distributed, sold, or used by
12 Wright Engineering and Manufacturing Corporation?
13 A No.
14 Q So, Doctor, you cannot quantify the approximate dose,
15 if any, to which Mr. Young was exposed to any product
16 manufactured, distributed, sold, or used by Wright
17 Engineering and Manufacturing Corporation; is that
18 right?
19 A That is correct.
20 Q Doctor, have you reviewed any evidence regarding
21 exposure by Mr. Young to a product manufactured,
22 distributed, sold, or used by Water Pik Technologies
23 Inc.?
24 A No.
25 Q So, Doctor, you cannot quantity the approximate dose,

181
1 if any, to which Mr. Young was exposed to any product
2 manufactured, distributed, sold, or used by Water Pik
3 Technologies Inc.; is that right?
4 A Thats correct.
5 Q Doctor, have you reviewed any evidence regarding
6 exposure by Mr. Young to any product manufactured,
7 distributed, sold, or used by Weil-McLain Company
8 Inc.?
9 A No.
10 Q So, Doctor, your cannot quantify the approximate dose,
11 if any, to which Mr. Young was exposed from any
12 product manufactured, distributed, sold, or used by
13 Weil-McLain Company Inc.; is that right?
14 A That is correct.
15 Q Thank you, Doctor.
16 MR. LABOON: Is that the end of that
17 line of questioning? Im just making sure.
18 (Discussion off the record.)
19
20 Q (By Mr. Cotton) Doctor, do you have any expertise to
21 comment on the validity of the testing done on Kent
22 cigarettes by Dr. Longo or testing done in the 1950s?
23 A Do I have any expertise in the validity of that? No.
24 Q And you have not yourself performed any testing on
25 Kent cigarettes?

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1 A I have not.
2 Q And would agree you are not an expert on cigarette
3 filter designs?
4 A I would agree with that, yes.
5 Q And you would agree also that you are not an expert
6 on — strike that.
7 You have never designed a cigarette filter,
8 correct, Doctor?
9 A I have not, no.
10 Q And you dont have any expertise of testing for
11 asbestos release from any product; is that right,
12 Doctor?
13 A I do not, no.
14 Q So, Doctor, to the extent that you are relying on
15 others that have done any testing, you are relying on
16 those studies and taking them at face value; is that
17 right, Doctor?
18 A Yes.
19 Q And in particular, Doctor — well, let me strike that.
20 You have been deposed, as you mentioned before, in
21 prior cases involving Kent cigarettes; is that right?
22 A I have.
23 Q And you have been examined previously regarding the
24 methodology that Dr. Longo used for his tests on the
25 Kent cigarettes, do you recall that?

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1 A You know, I know what he initially reported. I know
2 that there was — when he repeated some of the studies
3 that it didnt come out that — what we would call
4 clinical — the laboratory that his precision was not
5 the greatest, which means that if you have two
6 situations in which you have basically the same
7 sample, and you evaluate that for say a concentration
8 or release of something and you get significant
9 difference, like say two standard deviations from the
10 mean, that you might have a problem with the
11 methodology of what you are doing.
12 Q In fact, Doctor isnt, that — Im sorry. Did I
13 interrupt you?
14 A No, go ahead.
15 Q Doctor, the replicability of an experiment is
16 important; is that not right?
17 A It is, yes.
18 Q And you would agree, Doctor, that the testing that Dr.
19 Longo initially reported presented results that were
20 significantly different than the results that he found
21 in the second testing of Kent cigarettes; is that
22 right?
23 A They were different. What I dont recall, and I would
24 have to look this up, I dont recall how different
25 they were, and I dont recall exactly what the

184
1 difference was. I would have to look that up. And I
2 dont know what the — I havent looked at this for
3 some time. I dont recall whether Dr. Longo had an
4 explanation for that or how he interpreted that or how
5 other people interpreted that. I dont remember that.
6 I would have to look that up.
7 Q Is it your understanding, Doctor, that the results of
8 Dr. Longos first tests were published; is that your
9 understanding?
10 A I understand that, yes.
11 Q And is it your understanding that the second results
12 of the second test were not published?
13 A That I dont remember. I know that information became
14 available because he was being asked a lot of
15 questions about the first testing versus the second
16 testing. I dont recall whether the second testing
17 was published or not.
18 Q And, Doctor, you dont recall the details of how the
19 first test in terms of methodology varied from the
20 second test; is that right?
21 A I do not. I would have to look that up.
22 Q And you dont know whether Dr. Longo used appropriate
23 techniques for testing cigarettes; is that right?
24 A I dont know if he did or not, but I wouldnt know
25 what the appropriate techniques were. I dont know if

185
1 thats been established what they were. It seemed to
2 me what he did was a good idea, and that basically was
3 to trying to simulate what a human being would be
4 smoking a cigarette how the air that would come out of
5 the filter would — what would it contain. Would it
6 contain all constituents of what the filter was made
7 of, like cellulose, things like that, or would it
8 contain just some of them, things like that. I just
9 dont know that. Thats not what I deal with.
10 Q And so I think I know the answer to this too now based
11 on that statement, you have no basis to testify as to
12 the validity of any testing done on any Kent
13 cigarettes done at any time?
14 A As far as I wouldnt be able to, you know, no, I would
15 not be in a position to say that this is — to say
16 anything about the validity.
17 All I could say is that, you know, if you saw the
18 data from what they did, and thats fairly
19 straightforward with respect to how you handle that
20 because as far as the validity, I dont think I would
21 be in a position to say anything about that.
22 Q Doctor, is it your understanding that the testing that
23 Dr. Longo did was done on Kent cigarettes that were
24 nearly 40 years old?
25 A Yes. It was my understanding that he got those from

186
1 cigarette aficionados, or however you say that word,
2 who actually collected cigarettes and they were kept
3 in freezers. And its my understanding from talking
4 to Bill, and also I think from his papers, that thats
5 where he got them and they had been frozen. And I
6 dont know if that has any bearing on, or at least his
7 results or not.
8 Q But the basis of your belief that it was frozen was
9 based on something Dr. Longo told you?
10 A Yes.
11 Q What, if anything else, have you discussed with Dr.
12 Longo?
13 A I was surprised basically that how could he — that he
14 was able to even find cigarettes that old. And thats
15 when he told me that a lot of people collect
16 cigarettes. And Im not a smoker, so I wouldnt have
17 any idea that people liked to collect that type of
18 thing. But he told me that they did, and he was able
19 to find actually a lot of Kent cigarettes from that
20 time period.
21 Q Earlier we established that you first saw Mr. Ewings
22 report today, so I gather, Doctor, that Mr. Ewings
23 report doesnt form the basis of any of your opinions
24 in the case?
25 MR. MADEKSHO: Objection to form.

187
1 THE WITNESS: Not specifically, but
2 I think we talked about earlier I was going to look at
3 specifically to try to answer that question that you
4 posed, and that was really how much asbestos was
5 released from smoking a certain number of cigarettes.
6 I think he smoked five per day except for the weekends
7 when he smoked ten a day, and in the summer he smoked
8 ten a day. And I was going to try to see if I could
9 understand exactly what Mr. Ewing had done to obtain
10 or to fill in the blanks in the tables that he had
11 there.
12 MR. MADEKSHO: Chris, do you want
13 him to do that right now because if we are going to do
14 that, I suggest we do it quicker because its 4:15.
15 Q (By Mr. Cotton) We will keep going.
16 Can you point me to any published article or study
17 that says that the amount of asbestos fiber release
18 reported by Dr. Longo is substantial enough to
19 contribute to someones mesothelioma?
20 A No. Not specifically that way, no.
21 Q Doctor, assuming a Kent smoker that smoked Kent
22 cigarettes during the short period of time they had an
23 asbestos-containing filter was exposed to 180 asbestos
24 structures per day, can you point to any published
25 study that says exposure to asbestos at that level for

188
1 two to three years causes mesothelioma?
2 A No, but I cant do the latter either. I cant look at
3 any study that says it doesnt. I mean, because again
4 it gets back to the same thing that somebody assumes
5 we know how much it takes and no, I cannot do that nor
6 can I say that somebody — that that would not be
7 possible for that to cause mesothelioma either. I
8 just dont think we know.
9 MR. MADEKSHO: Objection to form for
10 that last question. Sorry.
11 Q (By Mr. Cotton) Its been a while since we marked an
12 exhibit, so we will mark this as an exhibit.
13 (Exhibit No. 19 marked
14 for identification.)
15
16 Q Doctor, I am handing you whats been marked as Exhibit
17 No. 19, and ask that you take a look at that.
18 A Okay.
19 MR. CARTER: For the record, what is
20 it?
21 Q (By Mr. Cotton) Im sorry. Its the documents
22 related to the Western Asbestos Trust Claim.
23 MR. CARTER: I just wondered what
24 they were. Its always nice to let her know.
25 THE WITNESS: I didnt hear what the

189
1 question was or I forgot it.
2 Q (By Mr. Cotton) Have you seen this document before,
3 Doctor?
4 A No.
5 Q Are you familiar with the Western Asbestos Trust?
6 A Yes.
7 Q Okay. And if you could summarize for me what is the
8 Western Asbestos Trust?
9 A I was actually testifying in the Western Asbestos
10 Trust, it was in Oakland and the plaintiffs attorney,
11 as I recall, was David McClain, from Kazan McClain et
12 al, and I think this is it anyway.
13 And it was an issue of various asbestos-related
14 diseases, and it actually — as I recall it, there was
15 one claimant or one specific plaintiff in there and I
16 dont remember that name. And as I recall, I talked
17 about mainly mesothelioma and I dont recall details
18 other than that.
19 Q Have you been involved in any subsequent cases that
20 involved individuals that submitted claims to the
21 Western Asbestos Trust?
22 A That I dont know. Not that I know of, but that
23 doesnt mean that I potentially havent. I should say
24 I have — I just dont know who — how — as I recall
25 Western — the Western Asbestos Trust actually came

190
1 from another company to Western, and there was
2 insurance money that was available to actually give a
3 certain amount of money to the people who had
4 asbestos-related diseases. Thats what I kind of
5 remember, but I dont know exactly how many claimants
6 there were, or how many plaintiffs there were. I know
7 the case — I was involved in a case in a trial in
8 Oakland where there was just one claimant or one
9 plaintiff that was involved.
10 Q Okay. Doctor, you have now had a chance to briefly
11 flip through this. Do you see whats been marked as
12 an exhibit here relates to Mr. Young, the plaintiff,
13 in this case?
14 A I do see that.
15 Q And in particular, it relates to his claim to the
16 Western Asbestos Trust?
17 A Yes.
18 Q And do you see, Doctor, on Page 3 of the exhibit in
19 Interrogatory No. 17?
20 A I see that.
21 Q And do you see where it says that he has suffered from
22 malignant mesothelioma caused by his exposure to
23 asbestos while serving in the US Air Force?
24 A I do see that.
25 Q Doctor, is that significant to your opinions in this

191
1 case?
2 A Well, its the same answer that I have already given
3 if he was exposed to asbestos from that exposure that
4 would be a cause of his mesothelioma just like other
5 exposures would be causes, in my opinion.
6 Q And, Doctor, is it your opinion that assuming that
7 this was his only exposure to asbestos, that is, that
8 which is described in this claim, would that exposure
9 in and of itself be sufficient to cause Mr. Youngs
10 mesothelioma?
11 A I think if that was the real what happened, the answer
12 is yes.
13 Q And do you have any basis to dispute that thats the
14 fact of what happened?
15 MR. MADEKSHO: Objection to form.
16 THE WITNESS: I think the basis of
17 dispute would be all the other information I had that
18 he was exposed to asbestos elsewhere, and also exposed
19 to asbestos in Kent cigarettes, so I would say all of
20 those exposures together is what caused his
21 mesothelioma.
22 But the way you asked the question, if this was
23 his only exposure and I know he has mesothelioma, then
24 that would be the cause.
25 Q (By Mr. Cotton) Doctor, does your opinion in that

192
1 regard depend on what the dose of exposure is?
2 A Well, not necessarily. Unless somebody — again, its
3 the same old thing, unless somebody can say exactly
4 how much it takes to cause mesothelioma in a given
5 individual. If you got down to a level where its
6 really background exposure he was exposed to, I would
7 not say that mesothelioma was caused by asbestos. I
8 dont think background does cause mesothelioma. I
9 think thats too low. I dont think there is any way
10 you can prove that background concentrations like ten
11 to the minus five fibers/cc of air cause mesothelioma.
12 I just dont think you can do that.
13 Q So, Doctor, for you to express an opinion in this case
14 regarding the possible causes of Mr. Youngs
15 mesothelioma, you dont need quantifiable dose
16 information regarding a particular exposure; is that
17 right?
18 MR. MADEKSHO: Object to form.
19 THE WITNESS: I dont think you
20 necessarily need quantifiable. I think what you need
21 is some type of information that it was definitely
22 either a real occupational exposure a person had in a
23 setting where the job they had resulted in them being
24 exposed to asbestos, or they truly had bystander
25 exposure say from somebody else who worked with an

193
1 asbestos type of product and they were exposed
2 secondarily, but again in a real meaningful way.
3 If I had that information, just like Helsinki
4 says, is that if you have a reliable exposure that
5 thats all you really need. And if all those people
6 had what I would say were a reliable occupational
7 exposure, even though it was relatively low and
8 Helsinki also says that, that that would be acceptable
9 to state that that exposure contributed to cause a
10 persons mesothelioma.
11 Q And, Doctor, if you turn to page — Im sorry
12 Interrogatory No. 26.
13 A Okay.
14 Q Which is the fourth page of the exhibit.
15 A Okay. All right.
16 Q Do you see that it summarizes Mr. Youngs alleged
17 place of exposure on the Travis Air Force Base between
18 1963 and 1965?
19 A I see that.
20 Q And, Doctor, can you read — you see Doctor that it
21 indicates that the duration of his exposure was 21
22 months?
23 A Yes.
24 Q Doctor, can you read the job duties description
25 included there?

194
1 A Sure. Slept in barracks and saw insulation disturbed
2 during this time. Observed activities with and around
3 insulation materials, including pipe insulation.
4 Worked around other tradesmen including insulators,
5 pipe fitters, boilermakers, and other outside
6 personnel. These other tradesmen were installing and
7 tearing out asbestos-containing products, including
8 pipe insulation. Investigation and discovery are
9 ongoing.
10 Q Okay. And, Doctor, in your view, is that a
11 significant exposure to asbestos?
12 A The way it is written here, I would say yes.
13 Q And, Doctor, based on your understanding of what is
14 described in that paragraph including your
15 understanding of what insulators, pipefitters
16 boilermakers do, do you believe that that exposure
17 alone, Doctor, could cause Mr. Youngs mesothelioma?
18 A The answer would be yes, assuming that he was truly
19 around those people when that activity took place,
20 yes.
21 Q And you have no reason to disagree with that, do you?
22 MR. MADEKSHO: Objection to form.
23 THE WITNESS: No.
24 Q (By Mr. Cotton) And, Doctor, what types of asbestos
25 fibers would those sorts of activities generate?

195
1 MR. MADEKSHO: Objection. Form.
2 THE WITNESS: In general, if you
3 looked at the tradesmen, insulators, pipefitters,
4 boilermakers, basically chrysotile and amosite would
5 be the most common. You might find some crocidolite
6 there depending on at what time period they were doing
7 the insulating work, for example, say when the
8 insulation was first put in place if they were tearing
9 it out, but it would be primarily amosite and
10 chrysotile and maybe some tremolite — excuse me,
11 maybe some crocidolite. And also there could be some
12 contamination of the chrysotile with tremolite, you
13 might find a small amount of that.
14 Q (By Mr. Cotton) Doctor, we talked earlier about your
15 expert report in this case.
16 Have you seen your expert disclosure in this case
17 provided by the plaintiff?
18 A No, not that I know of.
19 Q Okay.
20 (Exhibit No. 20 marked
21 for identification.)
22
23 MR. MADEKSHO: Chris, how long are
24 you going to be going? Im about ready for a break.
25 Q (By Mr. Cotton) Do you want to take a break, Doctor?

196
1 A Sure.
2 Q How much more time do we have with you?
3 A I think it was scheduled until five. As far as Im
4 concerned if you have more thats fine too. I would
5 rather get it all done than have to come back.
6 MR. COTTON: Okay. Lets take a
7 break.
8 (Recess 4:29 p.m. to
9 4:35 p.m.)
10
11 Q (By Mr. Cotton) Doctor, I am going to hand you whats
12 been marked as Exhibit 20, and you see that its
13 titled, Plaintiffs second amended responses to
14 defendants master set of requests for disclosure?
15 A Okay.
16 Q And among other things you will see, Doctor, in there
17 is your expert disclosure for the case?
18 A Okay.
19 Q Do you see that?
20 A Yes.
21 Q And, Doctor. Have you seen that disclosure?
22 A Oh, I dont recall seeing this specific disclosure but
23 I have seen plenty of disclosures that are very
24 similar to this.
25 Q Were you involved in preparing this disclosure,

197
1 Doctor?
2 A Not that Im aware of, no.
3 Q I will move on to something else, Doctor.
4 A Okay.
5 Q Earlier we were talking about a couple of –
6 MR. CARTER: Is that an exhibit? I
7 will keep track of it, otherwise you wont get it
8 back.
9 Q (By Mr. Cotton) We were talking about the case study
10 you and Dr. Dodson did, do you recall that?
11 A Yes.
12 Q So we are on the same page, that was a case study
13 regarding the woman that claimed to smoke the Kent
14 cigarettes?
15 A Yes.
16 Q What was the purpose of that article, Doctor?
17 A Well, basically to give an example of a person whose
18 tissue had actually been analyzed to see if there was
19 evidence that that individuals lung tissue and lymph
20 node tissue contained crocidolite asbestos, which
21 would be the type of asbestos she would have been
22 exposed to if she smoked Kent cigarettes, and they
23 released fibers she breathed into her lungs so that
24 was one thing.
25 And the other was to show a technique that you

198
1 could do that using analytical transmission
2 electronmicroscopy and energy dispersive x-ray
3 analysis. But I dont think we did any emphasis on
4 that, as I recall, but I would have to look at it
5 again to make sure that by scanning EM there was no
6 crocidolite asbestos found, but by transmission there
7 was. That would be another potential reason to
8 publish that paper because the paper we just
9 published, which had to do with an issue about
10 chrysotile, the big issue with that paper was when you
11 use transmission electronmicroscopy we found about
12 500,000 fibers per gram of dry of chrysotile, but when
13 scanning was used they only found one chrysotile fiber
14 and we found 89.
15 And that shows that technique wise the results of
16 these analyses can vary depending on the instrument
17 that you use to analyze, but I cant remember whether
18 that was an issue in that case or not.
19 The main issue was that this woman smoked Kent
20 cigarettes, found crocidolite asbestos in her lungs,
21 she had mesothelioma, two and two together,
22 mesothelioma caused by crocidolite asbestos from Kent
23 cigarettes based on the fact that there was no other
24 evidence of any source, any other source of
25 crocidolite asbestos.

199
1 Q Doctor, what due diligence or other inquiry did do you
2 to determine whether there was other exposure to
3 asbestos?
4 A Basically everything we could think of. We actually
5 ourselves didnt talk to the woman, but the attorney
6 that initially sent us the case extensively talked to
7 her and also talked to her husband and also looked at
8 with respect to where she had had lived, what she had
9 done, what their house is, I mean, we looked at this
10 as much as we possibly could with respect to any
11 possible source of crocidolite and we couldnt find
12 any.
13 Q So, Doctor, am I right that the conclusions reached in
14 that article are based on certain assumptions?
15 A Well, they are based on certain assumptions, but they
16 are assumptions that are based on fact. And the
17 assumptions basically are that that was the only
18 exposure to crocidolite asbestos that she had.
19 But if someone would tell us, for example, that
20 her husband was exposed to crocidolite and he brought
21 his clothes home dirty or contaminated with
22 crocidolite and she washed them, that would be a
23 different story. There you would say that this is
24 another potential exposure to crocidolite, but as much
25 as we could tell that didnt happen.

200
1 Q And, Doctor, there are at least a couple other
2 assumptions, arent there?
3 Another assumption is that she smoked Kent
4 cigarettes during the short period of time that they
5 had asbestos-containing filters; is that right?
6 A Thats an assumption, but at least again based on the
7 information that we had that was a correct assumption.
8 I mean, if we didnt know that or we didnt think that
9 that was factually correct we would have never
10 published the case because it would never make any
11 sense, and it would not make it past peer review.
12 Q And, Doctor, another assumption made from that article
13 was that if she smoked Kent cigarettes during that
14 short period of time they had had an
15 asbestos-containing filter that she also inhaled the
16 smoke?
17 A That would be correct, yes.
18 Q Now, Doctor, would you agree that any of the other –
19 strike that.
20 Would you agree, Doctor, that if any of the
21 assumptions that we talked about turned out to be
22 inaccurate, then the conclusions reached in that
23 article would also be inaccurate to some extent?
24 MR. MADEKSHO: Objection. Form.
25 THE WITNESS: I would generally

201
1 state that, but lets go through the assumptions. I
2 mean, the first assumption is that she smoked Kent
3 cigarettes, and I thought we had overwhelming evidence
4 that she did. She stated that she did and her husband
5 said she did. Heres direct evidence, at least from
6 the person that had the disease, that she smoked Kent
7 cigarettes.
8 We have, at least I think as good as you could
9 possibly get, evidence that there wasnt any other
10 exposure. We did everything we could in our power to
11 try to evaluate that and we could not come up with
12 any, so I think that assumption was correct.
13 The assumption — what was the third one?
14 Q The inhalation.
15 A Yes, the inhalation. That, I think, almost speaks for
16 itself, that if she didnt inhale and she just took
17 the cigarette into her mouth and then blew it back
18 out, then she would not have asbestos in her lung
19 tissue, at least it wouldnt make any sense because it
20 would never get down to that level.
21 Q And I think, Doctor, you answered this, but just so
22 its crystal clear, if any of the three assumptions
23 that we talked about turned out to be inaccurate, then
24 the conclusions in that article in part would be
25 inaccurate; is that correct?

202
1 A In part. Say she had another type of exposure to
2 crocidolite which we couldnt find, if she had any
3 other exposure to crocidolite asbestos you would have
4 to say that was the cause of the mesothelioma as well.
5 Q And, Doctor, do you know where this woman lived?
6 A We did find that out. I cant remember exactly where
7 she lived. We did investigate that, you know, was
8 there any chance that she had bystander exposure to
9 asbestos from say living close to a facility like a JM
10 facility, but as far as we could tell that was not the
11 case.
12 Do I know exactly where she lived? No, I dont
13 recall.
14 Q Doctor, you were talking earlier about a JM facility
15 on the west bank of Louisiana?
16 A Yes, by New Orleans.
17 Q Can you explain to me that site and its significance
18 in terms of possible source of asbestos exposure?
19 A I can tell you a little bit. I dont know if I could
20 tell you everything. But the west bank was a place
21 where JM had a facility, and its my understanding
22 that was fairly close to New Orleans but was not in
23 New Orleans. I think it was in another city, Marinaro
24 or something.
25 MR. ROYER: Marero.

203
1 THE WITNESS: What was it?
2 MR. ROYER: Marero, M-a-r-e-r-o.
3 THE WITNESS: Yes, and that that
4 facility did release fibers into the air and there
5 would be a potential of neighborhood exposure from
6 that.
7 And the other way the exposures would be is the
8 tailings or the asbestos-containing waste that they
9 did not use that contained chrysotile — excuse me,
10 crocidolite that was used for peoples driveways or
11 sidewalks, et cetera.
12 Q (By Mr. Cotton) And, Doctor, is it your understanding
13 that the tailings or waste that you just described
14 that contained crocidolite asbestos was used sort of
15 throughout that area in different communities,
16 including New Orleans?
17 A I know in New Orleans. I dont know how extensive it
18 was used, but I do know we tried to investigate that
19 to the best of our ability and could not find any
20 evidence of that.
21 We were very aware of that because Dr. Dodson and
22 I had seen cases of mesothelioma where that was the
23 exposure that these people had.
24 Q And, Doctor, you would agree though if the evidence
25 showed that the woman that was the focus of that case

204
1 study lived in that area, that would be significant
2 with respect to your findings?
3 A That would be significant, yes.
4 Q And in fact that, Doctor, could be an alternate source
5 for any asbestos found in her tissue; is that right?
6 MR. MADEKSHO: Object to form.
7 THE WITNESS: If that was the case,
8 that would be possible, yes.
9 Q (By Mr. Cotton) Doctor, I think earlier today you may
10 have been talking about the first experiment done by
11 Dr. Longo, and I think you may have referenced him
12 using a smoking machine on that experiment?
13 A I thought thats what he did, as I recall. I havent
14 looked at those articles for a long time and I havent
15 talked to Bill about that for a long time.
16 Q Doctor, you would agree that your recollection of the
17 details of both the first experiment and the second
18 experiment are a bit fuzzy right now?
19 A Yes, they are a bit fuzzy.
20 Q And you cant say whether he actually used a smoking
21 machine in the first experiment or the second
22 experiment?
23 MR. MADEKSHO: Object to form.
24 THE WITNESS: I am pretty certain he
25 used a smoking machine on the first experiment because

205
1 I talked to him about that. I said, How do you make
2 a smoking machine? and he was telling me about that.
3 And I am not going to remember what he said, but he
4 was talking to me about that. And then as far as the
5 second no, I dont recall exactly what.
6 Q (By Mr. Cotton) Do you know whether he used the same
7 apparatus between the two experiments?
8 A I dont know.
9 Q Okay. And, Doctor, regarding the Fullam studies that
10 we talked about earlier today, do you know what was –
11 are you able to offer an opinion as to what was found
12 on those — in those studies?
13 A Heres what I remember, and again I think that
14 probably some of that information would be in my file,
15 that they were asked to analyze the smoke from
16 cigarettes that contained crocidolite asbestos,
17 specifically to try to answer the question, was
18 asbestos released into the cigarette smoke.
19 I dont recall the precise methodology that they
20 used but I thought they may have used also a cigarette
21 machine, or some type of device that would suck air
22 through the filter and then would look at that air
23 with respect to whether there were any particulate
24 matters and specifically asbestos.
25 And its my understanding when they did that they

206
1 found fibers. Now I cant recall exactly how they
2 determined those were asbestos fibers. I dont know
3 if they had energy dispersive x-ray analysis or x-ray
4 diffraction at that time or not, but nevertheless
5 thats what they concluded they were. And the
6 structures that they showed the electron micrographs
7 of were definitely clearly fibers, at least they had
8 parallel sides and the length was many, many times
9 greater than the width.
10 And for a fiber you have at least three times, or
11 some people would say at least five times greater
12 length than width, and parallel sides. And there is
13 no doubt there were parallel sides and there is no
14 doubt that the length was five times greater than the
15 width, and it would be a lot more than that.
16 I dont know how they actually — say did they do
17 an analytical energy dispersive x-ray analysis. I
18 dont know even if that technique was available at
19 that point in time, but nevertheless thats what they
20 said they were.
21 Q Doctor, coming back again to the case study that we
22 were talking about earlier with the woman.
23 A Yes.
24 Q Do you recall whether the talc and tremolite
25 concentrations detected were higher than the

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1 crocidolite concentrations?
2 A Could you ask the question again, please.
3 Q Let me ask you this, Doctor. Did you identify
4 tremolite, amosite, and talc in this womans lung
5 tissue that you tested?
6 A Yes.
7 Q And, Doctor, were the talc and tremolite
8 concentrations higher than the crocidolite
9 concentrations?
10 A In one sample from the right lung, yes. And in what
11 Dr. Roggli did with scanning EM the answer was yes,
12 but not in the other sample.
13 Q And, Doctor, can you identify the source of the
14 tremolite, amosite, or talc which you detected in the
15 womans tissue?
16 A As far as being absolutely certain or possibilities?
17 Q Well, do you have an opinion, Doctor, what the source
18 of the tremolite, amosite, and talc in the tissue was?
19 A The most likely would be cosmetics by far.
20 Q Do you have any evidence that she used the sorts of
21 cosmetics that would have those types of fibers in
22 them?
23 A Do I have any proof? No, I dont have any proof, but
24 I still think that would be the most likely source.
25 Q Doctor, do you have an opinion as to what the current

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1 background levels of asbestos are in the air today?
2 A Most of the samples that you would have in the cities
3 would be zero. There might be some that would be like
4 ten to the minus fourth or ten to the minus fifth but
5 most of them are zero.
6 Q Would you agree there are a range of reported
7 estimates of what current background levels are?
8 A There are a range of reported concentrations that
9 people have found, but thats varied a little bit
10 between geography.
11 For example, right now there is a certain part of
12 California thats been cordoned off because of high
13 levels of I think primarily tremolite in the air in
14 that area.
15 With respect to what you find in Bremerton, Dr.
16 Dodson and I analyzed my lab, for example, and we
17 dont find any asbestos in it. Most of the major
18 cities you wouldnt find any either. The ones that
19 you did find would be very low levels, ten to the
20 minus fourth, ten to the minus fifth, but it would
21 vary.
22 I mean, if you would go to central California
23 there is a paper written by Pan, et al., in 2005 in
24 the American Review of Respiratory Disease and
25 Critical Care Medicine where they are actually making

209
1 a strong suggestion that the cases of mesothelioma
2 that occur in that area are caused by a true
3 environmental source of asbestos.
4 Q Okay. And, Doctor, would you agree that in general
5 ambient air levels are higher — were higher in the
6 past than they are today?
7 A Sure.
8 Q And you dont know today, Doctor, what the ambient air
9 levels were in the Detroit area in the 1950s, would
10 you agree with that?
11 A I dont know what they are. I can tell you what they
12 were at least from Dr. Fowlers studies here in
13 Seattle and San Francisco.
14 Q Doctor, you dont know the levels of ambient air
15 exposure from the New York area in the late 1950s; is
16 that right?
17 A The New York area, no, I dont.
18 Q And that would be true also with respect to the early
19 1960s; is that right?
20 A That would be true.
21 Q Now, Doctor, earlier today you referred to a study by
22 Dr. Talcott, do you recall that?
23 A Yes.
24 Q And I think you described it as one of the most
25 important articles in this area?

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1 A I thought it was one of the most important ones
2 because I think thats how it all started with respect
3 to him identifying cases of mesothelioma and perhaps
4 lung cancer in those people who were making those
5 cigarettes that contained crocidolite asbestos. And I
6 think I told you that at least the follow-up in that
7 that 18 and a half percent of those people died from
8 mesothelioma, but it was a relatively small group of
9 people. I think only about 45 workers were involved.
10 Q And you agree though, Doctor, in fact you confirmed
11 this by correspondence, that Dr. Talcott did not do
12 any testing with respect to those that actually smoked
13 the Kent product; is that right?
14 A What I was wondering about, did he ever document that
15 the asbestos got into the cigarette smoke and was that
16 inhaled into the peoples lung. Thats what I was
17 specifically asking him. I thought somebody might
18 have done that and obviously somebody had done that
19 but he didnt know about it.
20 Q You are aware arent you, Doctor, that the authors of
21 the Talcott study themselves say that the risk of such
22 disease in the persons who smoked cigarettes
23 containing the filter material is unknown?
24 A They hadnt done anything, at least thats what he
25 told me in the letter.

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1 Q And, Doctor, you would agree that the nature of the
2 exposure at issue in the Talcott study is
3 fundamentally different than the exposure at issue in
4 this case, would you agree?
5 A Sure.
6 Q Because that study was looking at factory workers,
7 correct?
8 A Right. And that would be a different concentration or
9 a different level of exposure.
10 Q Doctor, do you have any additional opinions regarding
11 this case that we havent discussed yet here today?
12 MR. MADEKSHO: Object to form.
13 THE WITNESS: I dont think so, no.
14 Q (By Mr. Cotton) Doctor, do you have any additional
15 opinions regarding Kent cigarettes that we havent
16 discussed here today?
17 A No, I dont think so.
18 Q Doctor, have you been asked to review anything else
19 that we havent discussed here today?
20 A No.
21 Q Other than the materials that we have discussed here
22 today, do you intend to rely on anything else in
23 forming your opinions in this case?
24 A Well, thats a little hard to say. I think I already
25 told you that Im going to go back and look at my file

212
1 that I have on Kent cigarettes, which I dont think
2 its going to be anything new or anything you guys
3 dont already know, so I dont think there is anything
4 else.
5 The only other thing I was going to do was look at
6 Mr. Ewings CIH report to see if I could try to figure
7 out exactly how he came to the numbers that are given
8 in those two tables, but thats again something you
9 folks have seen.
10 Q Doctor, do you plan to review any additional pathology
11 materials or anything else relating to this case?
12 A No, I dont think so.
13 I think the one thing that could potentially
14 happen in a case like this, and that would be that Mr.
15 Young dies, and if he dies I would strongly suggest
16 that an asbestos fiber and asbestos body analysis be
17 done.
18 Q Why would you strongly suggest that?
19 A Because that would really answer the question.
20 Q The question being?
21 A Whether or not he was exposed to crocidolite asbestos.
22 I think it would at least partially answer that
23 question.
24 And then if you answered that question then you
25 could maybe look at a more detailed exposure history

213
1 with respect to what kind of products he was exposed
2 to. And I dont know if that has been done yet. But
3 that would be one other thing you could do. But, you
4 know, who knows whats going to happen to him. There
5 is some people with mesothelioma that live four or
6 five years without any treatment.
7 Q All right. Doctor, I want to cover a few things real
8 quickly. Number of — how many cases have you
9 reviewed for asbestos litigation in the past year?
10 A Oh, in the past year the amount that I have actually
11 reviewed and written reports on is about $350. Thats
12 about the maximum I can do when I actually work at
13 home on the weekends. And during part of the week,
14 about 55 to 65 percent of my time is devoted to that,
15 the rest is surgical pathology, consultation cases,
16 experimental stuff, and writing papers.
17 Q Doctor, the 350 cases per year, how long has that been
18 your average case load for litigation purposes?
19 A As far as the numbers we have done, thats probably
20 been, I would say, six or seven years.
21 The total number of cases we actually received
22 last year was about 545, but I cant get that many
23 done in a year. Its impossible.
24 Q So am I right that any given time you have anywhere
25 from 350 to 545 cases?

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1 A Well, as far as the average number in the last five
2 years, it probably would be in the neighborhood of
3 425, I would say.
4 Q And, Doctor, on average how many hours do you spend on
5 each case?
6 A That varies a lot. I mean, like this case it was two
7 hours. Some of the cases are one hour and some of
8 them are three or four hours. It kind of just depends
9 how complex they are.
10 Sometimes I will see cases where they have done
11 extrapleural pneumonectomies and there might be 90
12 slides to look at, and a very complex pathology report
13 with respect to things like where the plaques were,
14 where the tumor got to the margin of resection, and
15 things like that. So I would say there is hardly ever
16 a report that is over three hours, that would be
17 uncommon.
18 Q So the range generally would be in –
19 A In the one- to three-hour range.
20 Q Okay. Can we settle on an average like two hours like
21 this case?
22 A Yes, probably that, or maybe a little less, but there
23 would be hardly any cases over three hours.
24 Q And your review of the cases is done at a rate of $400
25 an hour; is that right?

215
1 A Yes.
2 MR. MADEKSHO: Objection to form.
3 Q (By Mr. Cotton) And, Doctor, how often each year do
4 you testify either at trial or in deposition for these
5 types of cases?
6 A I have a document that I brought with me that has that
7 information and maybe we can get it from that other
8 one and use that too, or I can get it. I think I give
9 about 30 trials a year on average and as far as
10 depositions probably — I dont know probably 300.
11 Q 300 depositions?
12 A Yes. Well, lets see, I generally do — I would
13 say — we usually do more than that. We usually do, I
14 would say about five, so five times 52, so maybe not
15 300 say 250 would probably be closer.
16 Q So on average, how long has that been your average,
17 Doctor?
18 A Oh, probably for six or seven years.
19 Q So on average, the last six or seven years you have
20 given about 250 depositions a year for litigation
21 purposes?
22 A Yes.
23 Q And would the 30 trials that you mentioned be about
24 what you do on an average basis over that six- or
25 seven-year period?

216
1 A Yes.
2 Q And, Doctor, when you testify at trial, how much time
3 do you generally bill for that time?
4 A What I do is I bill for $500 an hour for the actual
5 time I spend in trial. Like I testified, like I was
6 back in Toledo, for example, in the Jackson case and I
7 testified an hour and a half. And then I charge $350
8 time away from office for a maximum of 12 hours, but I
9 always subtract the amount I testify from that 12
10 hours.
11 Q So you bill at least 12 hours for testimony, or it
12 just depends on what the rate is?
13 A Theres hardly ever — probably the maximum testimony
14 in one day would be five hours and thats even
15 uncommon. I would say it averages more like three
16 hours, two and a half hours. And then the time away
17 from the office would be say nine hours, so nine times
18 350, that would be $3,250 say plus $750, that would be
19 about $4,000, for example, in that case.
20 Q Is that average?
21 A I would say its a little — sometimes more. I would
22 say average closer to $5,000 per trial and that
23 usually means Im away for two days, and that means
24 Im traveling basically one day to get there, like
25 Toledo that took way over 12 hours but I didnt charge

217
1 for that. I just charged for only 12 hours. And then
2 coming back, I actually got lucky. I got back within
3 about nine hours, when you go through the airports,
4 and blah, blah, blah.
5 Q So on average, give or take each trial you bill out
6 about $5,000.
7 A Probably about $5,000, yes.
8 MR. MADEKSHO: Object to form.
9 THE WITNESS: We do 30 trials and so
10 thats about $150,000.
11 Q (By Mr. Cotton) And depositions, how long do they
12 usually go? Maybe today would be a bad example.
13 A Today would not be a good example. Most of them
14 usually, I would say, a lot of them are one hour. I
15 would say probably average maybe an hour and a half,
16 two hours, but most of them were one hour if you were
17 to look at them. A lot are California depos where
18 they call in and they are pretty straightforward cases
19 most of the time.
20 Q So on an average though, a deposition is about an hour
21 and a half?
22 A I would say so.
23 Q And thats at?
24 A $500.
25 Q $500?

218
1 A $500 an hour, so say $750 times 260, so that would
2 be — about $95,000.
3 Q Okay. And then we were talking earlier about the time
4 spent preparing your report, you do on average about
5 425 reports, times an average two hours per report,
6 times $400 an hour –
7 A I think what you want is a gross income. The gross
8 income for the last about three years has been about
9 $800,000. If you average the amount that I get from
10 the time I started doing this which was from October
11 1985 to now, about $275,000 a year.
12 Any profit — we have about 40 percent overhead,
13 and any profit is divided equally between myself and
14 my three partners.
15 Q Okay. And Im sorry, Doctor, your current annual gross
16 is what?
17 A The current annual gross for 2007 is $800,000 and it
18 was about the same the previous year.
19 Q And in fact, Doctor, we were talking about the average
20 being the same for the last six or seven years; is
21 that right?
22 A No, it hasnt been quite that much, but I would say
23 the last ten years it would probably have averaged
24 about $600,000, so that would be the last ten years
25 about six million, and 40 percent overhead divided by

219
1 four with respect to profit. If I wanted to make
2 money I would be independent and do this.
3 Q And, Doctor, what percent of your work over the last
4 four years has been for law firms representing
5 plaintiffs?
6 A About 99 percent. Although this week I actually was
7 called by a defense firm in Boston to testify for
8 them, and also Al Parnell wants me to review a case
9 for him. I have never turned down a defendant.
10 Q And, Doctor, what percentage of your own personal
11 income is derived from this work?
12 A Oh, probably about 25 percent.
13 Q Doctor, earlier we were talking about the Helsinki
14 Consensus report, do you recall that?
15 A Sure.
16 Q And I think you said something along the lines you
17 take that report over any decisions from the Texas
18 court?
19 A No, I dont think I said that. I said that I thought
20 the Helsinki Report was a very good report to actually
21 go by with respect to attribution of disease, and
22 thats for lung cancer and for mesothelioma,
23 asbestosis is not maybe as critical.
24 Q And, Doctor, do you believe that that standard
25 outlined by the Helsinki Consensus Report is a better

220
1 statement of what you need to evaluate the cause of
2 the mesothelioma than the standard outlined by the
3 Texas decisions we talked about earlier today?
4 MR. MADEKSHO: Objection. Form.
5 THE WITNESS: I think they are
6 different and I dont know which one is better. I
7 have a feeling for why Judge Davidson did what he did,
8 and I can understand that, or what the court did, but
9 I still think there are — like that Flores case, for
10 example, my main objection to the appellate courts
11 decision is that they think somebody knows how much
12 asbestos it takes to cause asbestosis.
13 And I would say again that I dont think anybody
14 knows that in any individual person, so they are
15 starting to make these what I would say are somewhat
16 arbitrary rules. If they want to do that though I can
17 live with that. And I think people like Aaron DeLuca
18 that I worked for, and other people where we actually
19 give very complex information with respect to what we
20 think a persons exposure is, and thats what we try
21 to actually present in a trial or present to the
22 court.
23 And I think that if thats the way it is now in
24 Texas, and I might not understand everything that is
25 going on in Texas, but thats what we try to do is

221
1 become as factually correct and as factually extensive
2 as we can based on the data that we have.
3 Q (By Mr. Cotton) All right, Doctor, I am going to run
4 through some real quick questions and I think we will
5 be done, okay?
6 A Sure.
7 Q Doctor, you would agree that the vast majority of
8 people that develop mesothelioma do so as a result of
9 occupational exposure to asbestos?
10 A Yes.
11 Q And what you do as a pathologist in the hospital is
12 different than what you are doing here today; is that
13 right?
14 A To a certain degree, yes. The difference primarily
15 would be is that in a hospital causation is not a big
16 issue, what is a big issue is diagnosis and treatment.
17 Q So as a pathologist you try to determine what kind of
18 disease someone has; is that right?
19 A But I also do that in those cases here, for example,
20 there was — I mean, I will bet you that ten percent
21 of the cases that I see I would change the diagnosis
22 on. A lot of times they go against being
23 mesothelioma.
24 Q Now, Doctor, looking at a tumor under a microscope
25 cant determine the cause; is that right?

222
1 A It cannot determine the cause. There may be rare
2 exceptions if you use an electron microscope, for
3 example, if you saw an Epstein-Barr virus say in a
4 case of a bronchus lymphoma or something like that
5 maybe, or an HPV virus in say a neoplastic squamous
6 cell from the cervix of a woman.
7 Q The cause or reason the cancer develops is
8 undeterminable in more than half the cases, would you
9 agree?
10 A Yeah, I would think thats true.
11 Q And, Doctor –
12 A This is all types of cancer.
13 Q Okay.
14 A Yes.
15 Q And, Doctor, asbestos is a known cause of
16 mesothelioma, you agree with that?
17 A Yes.
18 Q And there are theories regarding other causes of
19 mesothelioma; is that right?
20 A I think there is only one other cause of mesothelioma
21 in the United States and thats therapeutic radiation
22 given to treat other types of cancers, and thats a
23 very rare cause if you look at the total number of
24 cases which have been reported, which is about 100.
25 There is another type of fibrous type of mineral

223
1 in Turkey that causes mesothelioma, but there is a
2 heavy genetic component to that and thats a substance
3 called erionite.
4 Q Now, Doctor, has your opinion regarding possible other
5 causes of mesothelioma changed over the years?
6 A I dont think so. Initially there was a report back,
7 way back in 1985 by — I cant think of the guys
8 name, but he put all kinds of things in there talking
9 about viruses, oils, other minerals and none of that
10 has withstood the test of time.
11 Right now the possibility that HPV — not HPV, but
12 SV-40 causes mesothelioma, I think that has been
13 eliminated. The only other real cause I think other
14 than asbestos is therapeutic radiation. And then the
15 cases of peritoneal mesothelioma in women I think
16 those are ones that need to be further evaluated. I
17 think there you would probably find quite a few cases
18 where they couldnt determine the cause and they would
19 probably be referred to as idiopathic.
20 Q And so you agree, Doctor, there are certain number of
21 mesothelioma cases with no known cause?
22 A There are a certain number of cases where you cannot
23 determine a cause, whether or not there isnt really a
24 cause is a whole other issue.
25 Yes, I think there is a certain number of cases,

224
1 but I dont think there is very many, especially
2 pleural mesotheliomas and also peritoneal
3 mesotheliomas in men.
4 Women I would say the peritoneal mesotheliomas
5 would be ones where would find a fairly high number or
6 percentage where you could not determine the cause.
7 Q And, Doctor, earlier I think today you said that the
8 current rate of mesothelioma in the United States is
9 about 3,000 cases per year?
10 A Its about 3,000. There is some, Dr. Lemen, for
11 example, always states he thinks the death
12 certificates are wrong in a significant number of the
13 cases, and he thought if people used a new coding with
14 actually the specific code for mesothelioma that it
15 might be higher than that.
16 Some people like Victor Roggli and Andrew Churg
17 think that its decreasing. There is people like
18 myself and Gene Mark and John Maddox and several other
19 people that think that the actual rate is increasing.
20 I certainly see from — at least from a
21 perspective of consultation cases, I saw two cases
22 that were sent to me yesterday where I diagnosed
23 mesothelioma. I think its increasing, if anything,
24 and there is some new data out that claims that the
25 rate will not peak until 2040.

225
1 Q And, Doctor, I think — let me ask you this Doctor, of
2 the mesothelioma cases diagnosed in the United States
3 annually, how many of those are cases involving men on
4 average?
5 A On average, probably of the 3,000, 2500 would be
6 relatively — the few cases in women are a
7 significantly smaller percentage.
8 Q And, Doctor, I think earlier today you said that on
9 average you estimated that ten percent of mesothelioma
10 cases involving men are idiopathic?
11 A Thats the number that is generally stated, yes.
12 Q So, Doctor, of the 2500 mesothelioma cases involving
13 men that are diagnosed each year, you would expect on
14 average 250 of them to be idiopathic cases?
15 MR. MADEKSHO: Object to form.
16 THE WITNESS: Yes.
17 Q (By Mr. Cotton) And, Doctor, you would agree that
18 there may be causes of mesothelioma that are not yet
19 known?
20 MR. MADEKSHO: Objection to form.
21 THE WITNESS: I guess its
22 impossible to answer that no, isnt it?
23 Q (By Mr. Cotton) So you would agree with that?
24 A Yes.
25 Q Doctor, in your practice you dont make treatment

226
1 decisions or treat patients?
2 A It depends on how you — I mean, I provide, as a lung
3 pathologist in Bremerton, and a mesothelioma
4 pathologist, I make the diagnosis. So, I mean, do I
5 actually give people chemotherapy? No. Do I actually
6 give them radiation therapy? No. But I do give them
7 the diagnosis, which unfortunately sometimes is not
8 something that is very fun, but its very necessary to
9 determine what happens to those people, and in that
10 way Im a treater, but with respect to applying
11 therapeutic radiation or chemotherapy, I dont do
12 that.
13 Q Doctor, you agree that mesothelioma does occur in
14 animals; is that right?
15 A Sure.
16 Q And it occurs in infants and children, you agree with?
17 A Very few cases, but there are some cases. I have seen
18 a couple this year that have been sent around in the
19 U.S.-Canadian Mesothelioma Panel, one in a 9-year-old
20 child in the mediastinum, and another one in a child I
21 cant remember where, but very few. A lot of the
22 cases that were initially thought to be mesothelioma
23 in children were misdiagnosed.
24 Q Doctor, in most of the cases in which mesothelioma
25 does occur in infants or children, its not been

227
1 associated with or proven to be caused by asbestos; is
2 that right?
3 A Thats probably true. There is some notable
4 exceptions, and probably the best exception would be
5 the 17-year-old boy who died from peritoneal
6 mesothelioma reported in Human Pathology in 1994 which
7 started playing around with his mothers cosmetics at
8 age 11, died six years later from peritoneal
9 mesothelioma. When they analyzed his lung tissue they
10 found 600,000 fibers per gram of dry of asbestos of
11 which about half were tremolite and half were
12 chrysotile.
13 And I have seen a couple other mesotheliomas that
14 were thought to be due to cosmetics, and there is
15 quite a bit of evidence that some cases of ovarian
16 cancer are actually caused by asbestos from cosmetics.
17 Q Doctor, earlier today we were talking about some other
18 authorities in this area. You would agree with me
19 wouldnt you, Doctor, that Dr. Allen Gibbs is a
20 reliable authority on diagnosis and causation of
21 asbestos-related disease?
22 A I would agree with that.
23 Q Would you agree that Dr. Victor Roggli is a reliable
24 authority on diagnosis and causation of asbestos
25 diseases?

228
1 A Yes.
2 Q And you would similarly agree that Dr. Andrew Churg
3 is a reliable authority on diagnosis and causation of
4 asbestos disease?
5 A Yes.
6 Q And you agree that the book by Roggli and Green titled
7 Pathology of Asbestos Associated Diseases is a
8 reliable and authoritative source?
9 MR. MADEKSHO: Object to form.
10 THE WITNESS: The title you said it
11 was the Pathology of Occupational Lung Disease that
12 was by Green and Churg.
13 Q (By Mr. Cotton) No, Im sorry. Pathology of Asbestos
14 and Associated Diseases.
15 A And by who?
16 Q Roggli and Green.
17 A Green?
18 Q Green.
19 MR. LABOON: First initial?
20 Q (By Mr. Cotton) Are you familiar with that
21 publication, Doctor?
22 A Could you spell the name of the second person.
23 Q G-r-e-e-n.
24 A No, I dont think Victor has published a book with
25 anybody named — the person — Francis Green is a

229
1 person who published a book with Andrew Churg called
2 the Pathology of Occupational Lung Disease. Hes a
3 good pathologist. He might even be a mineralogist, I
4 dont know, but he was the person.
5 Victor published a book initially with Phillip
6 Pratt and Don Greenberg, and then the second edition
7 was Victor, Tom Sporn, and was Orrie part of that or
8 Butnor, I dont know.
9 Q Thank you, Doctor.
10 Switching gears quickly, I want to talk about
11 fiber types.
12 A Sure.
13 Q The major types of commercial asbestos are chrysotile,
14 amosite, and crocidolite, do you agree with that?
15 A Yes.
16 Q And we may have discussed this earlier, amosite and
17 crocidolite are both amphiboles?
18 A Yes.
19 Q Chrysotile is not amphibole but known as serpentine?
20 A Yes.
21 Q Tremolite is another amphibole asbestos that is found
22 commonly mixed with chrysotile, do you agree with
23 that, Doctor?
24 A Yes.
25 Q And tremolite is another — strike that.

230
1 Anthophyllite is an amphibole fiber that is found
2 in lungs of people in the U.S., you agree with that,
3 Doctor?
4 A Anthophyllite?
5 Q Yes.
6 A Yes, some. A few. Thats a contaminate of chrysotile
7 as well as tremolite is.
8 Q Now, Doctor, these fibers and other types of fibers in
9 mineral particles can be found in the lungs of people
10 in the general population, do you agree with that?
11 A To a certain degree, yes. The latest study that
12 Dodson did with respect to asbestos in people that
13 have not been exposed to asbestos suggested that the
14 people under age 25 dont have any asbestos in their
15 lung tissue, and the ones that are older than that
16 have very little, but they contain both amphiboles and
17 chrysotile, more likely chrysotile than amphiboles.
18 Q Doctor, you would agree that people who worked with
19 asbestos have many different types of asbestos fibers,
20 nonasbestos fibers, and mineral particles in their
21 lungs?
22 A Its certainly possible. It kind of depends on what
23 exactly they did. Like, for example, if they were
24 exposed to chrysotile they often would have tremolite
25 and anthophyllite in their lungs. If they were

231
1 exposed to amosite they usually would just have
2 amosite, but it kind of depends on exactly what they
3 do and where they were at.
4 Q Doctor, you agree though that all asbestos fiber types
5 are capable of causing cancers associated with
6 asbestos?
7 A Yes.
8 Q So that means, Doctor, that chrysotile can cause
9 mesothelioma?
10 A I think so, yes.
11 Q And you also believe that amosite can cause
12 mesothelioma; is that right?
13 A Yes.
14 Q Same too with crocidolite; is that right?
15 A Yes.
16 Q Same too with tremolite; is that right?
17 A Yes.
18 Q Same too with anthophyllite?
19 A Yes, very few cases of anthophyllite. There have been
20 a few, and actually one that Dr. Dodson and myself and
21 Bill Rom reported in neighborhood exposure. Most of
22 the cases that are caused by anthophyllite come from
23 Finland where they actually at one point in time mined
24 it. Anthophyllite is a material that they used in
25 building products, et cetera.

232
1 Q Doctor, is it your opinion that the most common cause
2 of mesothelioma in the United States is amosite
3 asbestos?
4 A The most common type of fiber that you find in the
5 lungs of people with men and mesothelioma is amosite,
6 that doesnt mean its the most common cause.
7 Actually, if you were to actually look at the most
8 common fiber that people would be exposed to in the
9 United States it would be chrysotile.
10 MR. LABOON: Objection.
11 Nonresponsive.
12 Q (By Mr. Cotton) Doctor, is it your opinion that
13 amosite, chrysotile, and tremolite cause more disease
14 than crocidolite?
15 MR. MADEKSHO: Objection to form.
16 THE WITNESS: Statistically, yes.
17 Q (By Mr. Cotton) And, Doctor, I think earlier we
18 established that you agree asbestos must be inhaled to
19 cause mesothelioma?
20 A I think it has to get to the lungs and then
21 translocated so the answer is, yes.
22 Q And, Doctor, you agree that not all asbestos that is
23 inhaled stays or is retained in the lungs; is that
24 right?
25 A That is correct, yes.

233
1 Q In fact, most fibers that are inhaled are exhaled; is
2 that right?
3 A A certain percentage of the fibers never get into the
4 lungs either by various defense mechanisms, mucus,
5 hair in the back of our nose and mouth, et cetera, and
6 then the mucociliary apparatus expels some of the
7 fibers. Some of the fibers are actually phagocytosed
8 by macrophages, et cetera, et cetera, so I think the
9 number that is often given is about 90 percent of the
10 initially inhaled fibers dont make it to the lung.
11 Q And so based on that estimate, 90 percent of asbestos
12 fibers are cleared; is that right?
13 A I dont think they are — well, they are cleared, yes,
14 thats fine, if you just use that word generically.
15 They are not cleared like I think of cleared through
16 lymphatics, they are just cleared because people cough
17 them up or they cough them up and swallow them or spit
18 them out and things like that.
19 Q Those fibers that are, to use the word cleared in that
20 way, they are not capable of causing disease; is that
21 right?
22 A No, if they dont get into the persons body they are
23 not capable of causing disease.
24 Q Doctor, do you agree there is probably asbestos in
25 everybodys lungs?

234
1 MR. MADEKSHO: Object to the form.
2 THE WITNESS: I dont think there is
3 asbestos in everybodys lungs. In fact, I think the
4 exact opposite is true. If you looked at most women
5 you wouldnt find any asbestos in their lungs, and if
6 you looked even at women in Bremerton about 50 percent
7 wouldnt have any asbestos in their lungs, and –
8 Q (By Mr. Cotton) Doctor, do you believe that –
9 MR. MADEKSHO: Counsel, would you
10 please allow the Doctor to finish.
11 MR. COTTON: Oh, Im sorry.
12 MR. MADEKSHO: Go ahead, Doctor.
13 THE WITNESS: The only other thing I
14 was going to say is that as I said right now, at least
15 the Dodson study from 2000 where he looked at the
16 young people less than say 25, they dont have any
17 asbestos in their lung, male and female.
18 Q (By Mr. Cotton) Doctor, would you agree that on
19 average all men — strike that.
20 Doctor, would you agree that on average that most
21 men over the age of 60 have asbestos in their lungs?
22 A Yes, thats correct.
23 MR. COTTON: Does anyone else have
24 questions?
25 Let me pass the witness. Im going to go through

235
1 my notes. I dont know that I have any more
2 questions, Doctor.
3 THE WITNESS: Okay.
4
5
6 EXAMINATION
7 BY MR. MADEKSHO:
8 Q I was going to ask the Doctor, about how much time do
9 you think you need to review the affidavit, just Pages
10 3, 4, and 5?
11 A I think it would be a very short period of time.
12 MR. LABOON: The affidavit or the
13 report?
14 MR. MADEKSHO: Im sorry. The Dr.
15 Ewing report.
16 THE WITNESS: Very little time.
17 Q (By Mr. Madeksho) Would you please do that at this
18 time starting at Page 3, Mr. Young smoked.
19 A On Page 3?
20 MR. LABOON: Do you want this on the
21 record or off the record?
22 MR. MADEKSHO: We can go off the
23 record.
24 (Discussion off the record.)
25

236
1 Q (By Mr. Madeksho) Dr. Hammar, have you now had an
2 opportunity to review Mr. Ewings report in this case?
3 A Yes.
4 Q And could you please state for the record what you
5 observed from that report that you believe is
6 significant in this case?
7 MR. COTTON: Objection to form.
8 THE WITNESS: What I observed is
9 that, number one, based on the information that we
10 have that Mr. Young smoked for about two years
11 cigarettes that potentially contained crocidolite
12 asbestos in their filter, 1952 to 1954, I think was
13 the time — no, 1954 to 1956, so about two years,
14 total number of cigarettes smoked would have been
15 4,630.
16 And then there was a calculation by Mr. Ewing
17 about how many fibers there were, how many puffs there
18 were per fiber, and the bottom line is that he was
19 exposed to about 790 million asbestos fibers.
20 Q And is it your understanding that thats just from the
21 first and second puff that Mr. Young took from the
22 cigarette?
23 MR. COTTON: Objection. Foundation,
24 lack of.
25 THE WITNESS: That is correct.

237
1 Q (By Mr. Madeksho) And based on your knowledge of the
2 literature, do you have an opinion to a reasonable
3 degree of medical certainty whether that dose of
4 crocidolite asbestos from Kent filters was a
5 significant contributing factor as to Mr. Youngs
6 mesothelioma, keeping in mind the Texas legal
7 standards?
8 MR. COTTON: Objection. Form. Lack
9 of foundation.
10 THE WITNESS: Yes, that it was.
11 Q (By Mr. Madeksho) And therefore all the puffs beyond
12 the second puffs, the third, all the way up to the
13 15th or 25th additional puffs, they also would have
14 been a significant contributing factor based upon the
15 Texas legal standards that we reviewed and talked
16 about here today?
17 MR. COTTON: Objection to form.
18 Lack of foundation.
19 THE WITNESS: That is correct, yes.
20 Q (By Mr. Madeksho) If the exposure that we have just
21 talked about, Dr. Hammar, was the only quantifiable
22 exposure to Mr. Young, would you have an opinion as to
23 whether that exposure from the Kent cigarettes was a
24 significant contributing factor, keeping in mind the
25 Texas legal standards we talked about here today?

238
1 MR. COTTON: Objection. Form. Lack
2 of foundation.
3 THE WITNESS: I would, and that it
4 was.
5 Q (By Mr. Madeksho) I would like to turn your attention
6 again, Dr. Hammar, to what has been marked as Exhibit
7 19, and would you please turn to what is at the top of
8 Page 26, Interrogatory No. 26, Doctor.
9 A Yes.
10 Q And now earlier when counsel for Lorillard Tobacco
11 Company was asking you about this section, did they
12 ask you any questions as to whether that indicated a
13 quantifiable dose based on the information in that
14 interrogatory response?
15 MR. COTTON: Objection to form.
16 THE WITNESS: They did not.
17 Q (By Mr. Madeksho) And from this interrogatory
18 response, are you able to determine a quantifiable
19 dose?
20 A I cannot, no.
21 Q Pass the witness. Well, I am going to ask these
22 questions now, or I can ask them later.
23 Doctor, on the basis of your calculations from the
24 first and second puffs from the Kent cigarettes as
25 detailed in Dr. Ewings report, can you convert those

239
1 measurements into fiber/cc years?
2 A Well, you potentially could if you go by what
3 Rodelsperger reported in that article on low level
4 exposures where he said that in the people where they
5 did the analysis for amphiboles that one fiber/cc year
6 was equivalent to 80,000 fibers per gram of dry lung
7 tissue. And if you look at those numbers that Mr.
8 Ewing calculated, and if you used just that number,
9 say we will use 790,000 rounded off to 800,000
10 crocidolite asbestos fibers, and stated that those all
11 ended up in the lung, or say even if they didnt all
12 end up in the lung, if you use this calculation that
13 Rodelsperger gave, which would be 80,000 is equivalent
14 to one fiber/cc years and you divided 80,000 into
15 basically 800 million, that would be 10,000 fiber/cc
16 years of exposure.
17 Q And is this dose of exposure from the Kent cigarettes,
18 based on your opinion, to a reasonable degree of
19 medical certainty, and keeping in mind the legal
20 standards applicable in Texas today, would that be a
21 significant contributing factor to cause Mr. Youngs
22 mesothelioma?
23 MR. COTTON: Objection to form.
24 Lack of foundation.
25 THE WITNESS: Absolutely. That

240
1 would be a very high concentration. And thats
2 assuming thats what the number was and those fibers
3 ended up there, and thats in his breathing zone, yes.
4 MR. MADEKSHO: Pass the witness.
5 MR. CARTER: Just for the record, we
6 are going to mark that page just so its part of the
7 record.
8 (Exhibit No. 21 marked
9 for identification.)
10
11
12 FURTHER EXAMINATION
13 BY MR. LABOON:
14 Q Just to clear up any confusion, first of all, I want
15 you to presume with me Mr. Young, when I deposed him
16 back in December, could not recognize the name
17 Garlock, and could not testify whether he ever worked
18 with or around that product; and two, that you have
19 seen the military specs during the relevant time
20 period; and three, that Mr. Ewing testified that he
21 could not calculate a dose for the work in 89 and
22 forward period.
23 Keeping in mind those three facts, can you, within
24 a reasonable degree of medical probability, offer any
25 opinions concerning any potential or alleged exposure

241
1 to any Garlock products that may or may not have
2 contained asbestos in that time period?
3 MR. MADEKSHO: Objection to form.
4 THE WITNESS: No.
5 MR. MADEKSHO: Chris, do you have
6 any follow-up questions?
7 MR. COTTON: I do.
8 MR. ROYER: I dont have any
9 questions.
10 MR. CARTER: Is there anybody on the
11 phone still awake?
12 MR. BALDO: Wide awake. I got a ton
13 of work done here these last four hours. I just have
14 a couple of questions when you folks are done in the
15 room.
16 THE WITNESS: Did you have your
17 putter in the office?
18 MR. LABOON: Nick, why dont you go
19 ahead. I think they are doing some calculation type
20 stuff if you are going to be fairly short.
21 MR. BALDO: Yes. Sure. Are you all
22 ready?
23 MR. LABOON: Go ahead.
24
25

242
1 EXAMINATION
2 BY MR. BALDO:
3 Q Dr. Hammar, my name is Nick Baldo, and I represent a
4 company called Oakfabco Inc., formerly known as
5 Kewanee Boiler Corporation.
6 A Okay.
7 Q Doctor, have you formulated any opinions in this case
8 regarding either Oakfabco or Kewanee Boiler
9 corporation?
10 MR. MADEKSHO: Objection to form.
11 And I would reiterate the objections I stated in my
12 preliminary statement at the beginning of the
13 deposition.
14 THE WITNESS: No.
15 Q (By Mr. Baldo) Doctor, have you been asked to
16 formulate any opinion in this case regarding either
17 Oakfabco or Kewanee Boiler Corporation?
18 A No.
19 MR. BALDO: Okay. Thank you for
20 your time. I enjoyed listening to you.
21 THE WITNESS: You are welcome.
22 MR. COTTON: Anybody else have
23 questions? Okay. Lets do this. Let me take a
24 five-minute break so I can go over my notes and we
25 will finish this up; is that okay, Doctor?

243
1 THE WITNESS: Thats fine. Sure.
2 (Recess 5:39 p.m. to
3 5:48 p.m.)
4
5 FURTHER EXAMINATION
6 BY MR. COTTON:
7 Q Doctor, I would like to follow-up on a few things if I
8 could before we finish?
9 A Sure.
10 Q You would agree with me, wouldnt you, Doctor, that
11 the linear dose response for mesothelioma and asbestos
12 is not an established scientific fact? Would you
13 agree with that?
14 MR. LABOON: Object to form.
15 THE WITNESS: I would possibly agree
16 with that. I would say that most of the studies that
17 extrapolate, and that maybe would exclude Hodgson and
18 Darnton, although I think that is very confusing,
19 would use linear extrapolation. But as far as whether
20 it should be perfectly linear, I mean, I dont know,
21 but thats what they use.
22 Q (By Mr. Cotton) Doctor, earlier today, in fact
23 moments ago you were talking about the
24 Rodelsperger — Im sorry if Im not pronouncing it
25 right.

244
1 A Rodelsperger, R-o-d-e-l-s-p-e-r-g-e-r.
2 Q I had the spelling, but I wasnt sure about the
3 pronunciation.
4 A Im not either. It might be wrong.
5 MR. LABOON: There is 2000 and 2001,
6 which one are you –
7 THE WITNESS: The one that that had
8 in there.
9 Q (By Mr. Cotton) Lets mark that if we could.
10 (Exhibit No. 22 marked
11 for identification.)
12
13 A What I was referring to is on page — 2001, American
14 Journal of Industrial Medicine, do you have one of
15 those yellow things? Okay.
16 Q Did we mark this?
17 MR. CARTER: I was going to copy it
18 and then we will put a new sticker on it right over
19 the old sticker.
20 MR. COTTON: Okay. Gotcha.
21 MR. CARTER: Okay.
22 Q (By Mr. Cotton) Doctor, what can you tell me about
23 this study that we are going to mark as Exhibit 22?
24 What can you tell me about the study thats been
25 marked as Exhibit 22?

245
1 A Its a study that talks about asbestos and also
2 man-made vitreous fibers with respect to mesothelioma
3 formation, and the concentrations that it takes, at
4 least in fiber/cc years, to be associated with certain
5 numbers of mesothelioma. And theres also in there
6 where they talk about the association between the
7 number of fiber/cc years a person was exposed to with
8 respect to how that would equate to concentration of
9 asbestos fibers in lung tissue.
10 Q So, Doctor, did this study include review of lung
11 tissue?
12 A It did, yes.
13 Q And do we have any quantifiable evidence regarding any
14 levels of asbestos in Mr. Youngs lung tissue?
15 A No, theres never been a sample of lung tissue
16 obtained in Mr. Young. He had a fine needle
17 aspiration biopsy of a right pleural mass, and — or a
18 chest wall mass it was referred to, and another tissue
19 biopsy. Hes never had a sample of lung tissue
20 obtained as far as I know.
21 Q And, Doctor, earlier your counsel marked as Exhibit 21
22 a calculation that you did?
23 A Right.
24 Q Could you explain to me, Doctor, the calculation.
25 A Well, we were just talking about the number of

246
1 structures that were identified in the first puff, and
2 I think it came out to 790,000 total. And what –
3 when Longo used structures, structures and fibers were
4 used somewhat synonymously, so if you looked at a
5 person say who had basically 800 million fibers,
6 structures, and those ended up in the lung and you
7 wanted to figure out what would have been the exposure
8 in fiber/cc years, you would divide that 80,000 into
9 800 million which would come out to 10,000 fibers.
10 Q Why were you dividing it by 80,000, Doctor?
11 A Because according to Rodelsperger in that article on
12 that page — wherever that is, he claimed that — he
13 stated that one fiber/cc year was equivalent to 80,000
14 fibers per gram of dry lung tissue, that was a
15 conversion. So if you wanted to convert the fibers or
16 the structures into fiber cc/years of exposure you
17 would just divide by 80,000 into this 800 million, and
18 that comes out to 10,000.
19 MS. MERRIAM: What?
20 THE WITNESS: That comes out 10,000.
21 Now that assumes — making certain assumptions but
22 thats just the simple math if you want –
23 MS. MERRIAM: That is very funny,
24 keep it simple.
25 MR. COTTON: Sal, you might want to

247
1 mute your line.
2 Q (By Mr. Cotton) Doctor, what assumptions are you
3 making with respect to that conclusion?
4 A Well, you are making that obviously all of the fibers
5 get into the lung, and thats probably the most
6 important one.
7 Q Thats a big assumption; isnt it, Doctor?
8 A It may be, but who knows.
9 Q We know, Doctor, moments ago you said that 90 percent
10 of fibers are cleared and dont cause disease?
11 A In general that is true.
12 Q Okay. Thank you, Doctor.
13 Now, Doctor, let me ask you, Doctor, regarding Mr.
14 Ewings report, you would agree that the calculations
15 that he did in that report relating to Mr. Youngs
16 alleged exposure to Kent cigarettes relied entirely on
17 both Mr. Youngs description of his smoking history
18 and the study reported by Dr. Longo, published by Dr.
19 Longo?
20 MR. MADEKSHO: Objection to form.
21 THE WITNESS: Yes.
22 Q (By Mr. Cotton) Just to be clear, in light of the
23 objection, there are two assumptions that have been
24 made by Mr. Ewing; is that right?
25 MR. MADEKSHO: Objection. Form.

248
1 THE WITNESS: Yes.
2 Q (By Mr. Cotton) And the first assumption is that Mr.
3 Young smoked Kent cigarettes during the time that they
4 had an asbestos-containing filter in the quantity
5 summarized in Mr. Ewings report; is that right?
6 A Yes.
7 Q And the other assumption, Doctor, is that Mr. –
8 that — Mr. — strike that.
9 The other assumption, Doctor, is that the research
10 reported by Dr. Longo was accurate; is that right?
11 A Yes.
12 Q Okay. If either of those assumptions are incorrect,
13 Doctor, the conclusions that were reached by Mr. Ewing
14 may be incorrect; is that right?
15 A They might be incorrect with respect to the precise
16 numbers, but that doesnt necessarily — they probably
17 could be — they probably — if those assumptions are
18 incorrect, the numbers would be different. Now with
19 respect to what the overall conclusion is though,
20 thats another issue.
21 Q But if the numbers change, you dont know what — let
22 me strike that, Doctor.
23 If the numbers turn out to be incorrect with
24 respect either to the amount of Kent cigarettes that
25 Mr. Young may have smoked and the release of asbestos,

249
1 if any, reported by Dr. Longo, then you cant quantify
2 what the dose would be; is that right?
3 MR. MADEKSHO: Objection to form.
4 THE WITNESS: That is correct, but I
5 would also state the following, that most people lie
6 about their smoking history on the low side. Chances
7 are he smoked more than what was even stated in that,
8 but I agree with you. I told you I agree with you.
9 Q (By Mr. Cotton) And, Doctor, you make an assumption
10 there, or a statement there that people lie about
11 their smoking. Whats the basis for that?
12 A From all the medical records I have read about that,
13 and then when the people have been personally
14 interviewed they lie on the low side. They think that
15 for some reason that that somehow is going to help
16 them, or they are embarrassed and they will not tell
17 the doctor really the pack years they have smoked.
18 They really lie on the short side.
19 Q You understand though dont you, Doctor, that if Mr.
20 Young didnt smoke Kent cigarettes during the relevant
21 time period he would have no claim against Lorillard
22 Tobacco, do you understand that?
23 A Sure, I understand that. But I dont know if Mr.
24 Young even knew anything about the micronite filter
25 too. You would have to look at that both ways. Did

250
1 he know anything? How do you know he knew anything
2 about micronite filters, and he wouldnt have any
3 reason to lie about it if he didnt know about it.
4 And how do you know he would lie even if he did know
5 about it.
6 Q Now, Doctor — have you marked the Longo study before?
7 MR. CARTER: No.
8 (Exhibit No. 23 marked
9 for identification.)
10
11 Q (By Mr. Cotton) Doctor, I am handing you whats been
12 marked as Exhibit 23, and ask you if recognize that as
13 the article authored by Dr. Longo that we have been
14 talking about here today?
15 A Yes.
16 Q And, Doctor, you see that in his abstract he reports
17 that at the observed rates of asbestos release a
18 person smoking a pack of these cigarettes each day
19 would take in more than 131 million crocidolite
20 structures longer than five microns in one year?
21 A Yes.
22 Q So, Doctor, if you took 131 million microns and
23 divided that by 365 days, you would get approximately
24 360 structures, would you agree with that?
25 A Its not microns, its 131 million crocidolite

251
1 structures longer than five micrometers in one year,
2 and thats where he stated what the number of
3 structures that he saw were, so what was your
4 question? Im sorry.
5 Q Let me rephrase it, if I didnt phrase it well.
6 A Okay.
7 Q We have already talked about Dr. Longo reporting in
8 this study the release of more than 131 million
9 crocidolite structures longer than five microns in one
10 year; is that right?
11 A Yes.
12 Q And thats for a pack a day smoker, is that your
13 understanding?
14 A I think it was a pack a day, yes.
15 Q And, Doctor, you would agree that 131 million
16 microns — Im sorry. I keep saying that. I
17 apologize.
18 You would agree that 131 million asbestos
19 structures divided by 365 days would be approximately
20 360,000 asbestos structures per day, would you agree
21 with that, Doctor?
22 A Yes.
23 Q And, Doctor, you would agree that if someone only
24 smoked a half pack of cigarettes per day that you
25 would divide that by two, wouldnt you?

252
1 A Yeah, I would.
2 Q And you would then be left with 180,000 asbestos
3 structures per day; is that right, Doctor?
4 A Yes.
5 MR. MADEKSHO: Objection. Form.
6 Q (By Mr. Cotton) And so, Doctor, do you interpret
7 Mr. — strike that.
8 Do you interpret Dr. Longos study as reporting –
9 well, let me back up.
10 Assuming, Doctor, that the results of Dr. Longos
11 studies are accurate and reliable, is it your
12 interpretation of the results that someone smoking
13 Kent cigarettes at a rate of a half pack per day would
14 be exposed to 180,000 asbestos structures per day?
15 A Yes.
16 Q And, Doctor, you would agree that the current OSHA PEL
17 is .1 fiber/cc years? We have established that,
18 havent we, Doctor?
19 A The current PEL is .1 fibers/cc of air, time weighted
20 average, eight hours a day, 252 days a year.
21 Q And you would agree that on average a worker would
22 inhale approximately ten million ccs of air per
23 eight-hour work day, would you agree with that,
24 Doctor?
25 A Ten million ccs, I dont know.

253
1 Q Well, Doctor, earlier we talked about 20 million ccs
2 per full day.
3 A Its pretty easy to figure out. Its 500 ccs per
4 breath, and 16 breaths per minute, so that would be
5 8,000 ccs per minute. And then if you take 60
6 minutes in an hour, so that would be 240,000 ccs per
7 hour.
8 MR. MADEKSHO: Doctor, its 8,000.
9 THE WITNESS: Who has a calculator?
10 MR. MADEKSHO: I have.
11 THE WITNESS: So 500 ccs per
12 breath, and 16 breaths per minute, so that would be 16
13 times 500, so that would be the number of breaths in a
14 minute, and there is 60 minutes in an hour, so if we
15 multiply 60 then times 8,000, that would be the number
16 you would have in an hour, and there is 24 hours in a
17 day, so multiply that by 24.
18 Q (By Mr. Cotton) Doctor, I would like to focus in on
19 the eight-hour work day, if we could.
20 A So you just want eight hours, so we will just go eight
21 hours times 240,000.
22 MR. MADEKSHO: That should be 48.
23 THE WITNESS: 480,000, so eight
24 hours a day — eight hours a day times 252 hours, 252
25 days a year, which is the — that would be the number,

254
1 so that would be — and this would be 3,840,000 times
2 252. We should do it in exponents, so that would be
3 3.8 times –
4 Q (By Mr. Cotton) Doctor, if I could, I would like to
5 make this easy for all of us. Let me do it this way.
6 You were saying how many breaths in a minute?
7 A Sixteen breaths a minute.
8 Q Okay. Sixteen per minute, and a breath has how many
9 ccs?
10 A Five hundred.
11 Q So 16 times 500, Doctor, is 8,000?
12 A Right.
13 Q Per minute?
14 A Per minute.
15 Q And we are all agreed that there is 60 minutes in an
16 hour, so thats times 60?
17 A Right.
18 Q Which gets us to 480,000.
19 A Okay.
20 Q And can we agree that we are talking about an
21 eight-hour work day?
22 A Yes.
23 Q And so if we multiply that by eight we get ourselves
24 to 3,840,000?
25 A Right. And then you multiply that times 252 days in a

255
1 working year.
2 Q Now, Doctor, whats the basis for your assumption that
3 there is 500 ccs per breath?
4 A Thats whats been measured. Thats the standard
5 tidal volume. Thats what is referred to.
6 Q Have you ever seen it reported that there are 1450
7 ccs per breath?
8 A No.
9 Q So, Doctor, by your estimate, during an average work
10 day an employee would breathe 3,840,000 ccs of air;
11 is that right?
12 A Yes.
13 Q And, Doctor, the OSHA PEL is .1 fiber/cc per?
14 A Its .1 fiber/cc of air, eight hours a day, 252 days a
15 year.
16 Q So, Doctor, under the OSHA PEL an employee under that
17 standard can be exposed up to 384,000 fibers per day;
18 is that right?
19 A If thats what the concentration was, yes.
20 Q Okay. And, Doctor, would you agree that the — and we
21 have already talked about this, that the structures
22 reported by Dr. Longo for someone smoking a half pack
23 of cigarettes per day would be only 180,000 fibers or
24 structures per day?
25 A Well, the structures and the fibers are synonymous, as

256
1 far as I can tell. There is no difference.
2 Q So you agree with that though, Doctor, right?
3 MR. MADEKSHO: Object to form.
4 THE WITNESS: Yes.
5 Q (By Mr. Cotton) And you agree, Doctor, that that is
6 less than half of the OSHA level allowed assuming the
7 number of breaths and ccs per breath that we just
8 spoke about; is that right?
9 A Right.
10 Q Thank you, Doctor.
11 Just one wrap-up question, Doctor, if I may. So,
12 Doctor, so that we are crystal clear on this, Doctor,
13 the calculation that we just went through, assuming
14 again that we rely on Dr. Longos study, suggests that
15 a smoker of Kent cigarettes at a rate of a half pack
16 per day was exposed to less than half of the permitted
17 exposure level under the OSHA standard, correct,
18 Doctor?
19 MR. MADEKSHO: Object to form.
20 THE WITNESS: That would be correct,
21 yes.
22 MR. COTTON: All right. Thank you,
23 Doctor.
24 MR. MADEKSHO: Brief redirect. Take
25 a couple minutes. Can we go off the record for like

257
1 five minutes?
2 (Recess 6:09 p.m. to
3 6:11 p.m.)
4
5
6 FURTHER EXAMINATION
7 BY MR. MADEKSHO:
8 Q Doctor, is the PEL designed to prevent mesothelioma
9 altogether?
10 A No, and thats what the calculations that Dr.
11 Nicholson was doing in 1986 which were reaffirmed in
12 1994 that a PEL of .1 fibers/cc of air for one year
13 caused seven cases of mesothelioma per 100,000 people
14 which is well — way, way above — 70 times what the
15 background level would be. So its a trade off. At
16 least if those data are correct, which are the
17 extrapolation from higher levels usually to lower
18 levels, if that data is correct, then at that level,
19 .1 fiber/cc year of exposure, from one year that would
20 create seven cases of mesothelioma per 100,000 people
21 exposed. The background level is one case per million
22 people per year, so the PEL — and they clearly stated
23 it in there, the PEL was a trade off. A trade off
24 between disease and getting jobs. Its as simple as
25 that.

258
1 Q And, of course, the exposure to Kent cigarettes in
2 nonoccupational; is that correct?
3 MR. COTTON: Objection to form.
4 THE WITNESS: Yes, its not an
5 occupational — its a very unique — I guess its a
6 habit type of exposure.
7 Q (By Mr. Madeksho) Therefore the trade off of a job
8 does not apply in a situation where there is a
9 nonoccupational setting, would that be your
10 understanding?
11 MR. COTTON: Objection.
12 THE WITNESS: Absolutely.
13 Q (By Mr. Madeksho) Therefore, do you, based on your
14 experience dealing with exposure levels, permissible
15 exposure levels that we have been talking about here
16 today, and the causality of those exposure levels of
17 mesothelioma believe that that is a way of giving
18 companies like Lorillard Tobacco permission to expose
19 people to crocidolite asbestos?
20 MR. COTTON: Objection to form.
21 Lack of foundation. Argumentative.
22 THE WITNESS: No. I cant believe
23 that they ever did it to be quite honest. Thats
24 exactly what I think. I cant believe that they ever
25 did it.

259
1 MR. COTTON: Move to strike as
2 nonresponsive.
3 Q (By Mr. Madeksho) And, Dr. Hammar, the computations
4 that counsel for Lorillard Tobacco Company just took
5 you through did not take into consideration
6 crocidolite structures smaller than five micrometers;
7 is that correct?
8 A Thats what Dr. Dodson and I have been extensively
9 writing about. It turns out that most of the exposure
10 you would have in any occupational setting is going to
11 be less than five micrometers, the majority of the
12 fibers, including crocidolite.
13 Q Does the PEL take into consideration less or greater
14 than five micrometers?
15 A No, they dont. Its only five micrometers or
16 greater.
17 Q Now given that that is the case, do you believe that
18 the calculation Dr. Ewing made in this case as to
19 total structures is more significant in order to form
20 an opinion as to causation of the crocidolite fibers
21 in Mr. Youngs mesothelioma in this case?
22 MR. COTTON: Objection to form.
23 Lack of foundation.
24 THE WITNESS: Yes, I do.
25 MR. MADEKSHO: Pass the witness.

260
1 MR. CARTER: Last call.
2 MR. COTTON: Doctor, what is your
3 usual practice? Do you review and sign or –
4 THE WITNESS: Usually I dont, but
5 in a case like this I might read and sign as much as I
6 hate to think about that.
7 MR. COTTON: Okay. Thank you.
8 (Signature reserved.)
9 (Deposition concluded
10 at 6:18 p.m.)
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1 STATE OF WASHINGTON ) I, CHRISTY SHEPPARD,
) ss CCR #1932, a duly
2 County of Pierce ) authorized Notary
Public in and for the
3 State of Washington
residing at Buckley,
4 do hereby certify:
5
6
That the foregoing deposition of SAMUEL P.
7 HAMMAR, M.D. was taken before me and completed on June
26, 2008, and thereafter was transcribed under my
8 direction; that the deposition is a full, true and
complete transcript of the testimony of said witness,
9 including all questions, answers, objections, motions and
exceptions;
10
That the witness, before examination, was by me
11 duly sworn to testify the truth, the whole truth, and
nothing but the truth, and that the witness reserved the
12 right of signature;
13 That I am not a relative, employee, attorney or
counsel of any party to this action or relative or
14 employee of any such attorney or counsel and that I am
not financially interested in the said action or the
15 outcome thereof;
16 That I am herewith securely sealing the said
deposition and promptly delivering the same to Attorney
17 Christopher Madeksho.
18 IN WITNESS WHEREOF, I have hereunto set my hand
and affixed my official seal this 30th day of
19 June, 2008.
20
21
Christy Sheppard, CCR, RPR
22 Notary Public in and for the State
of Washington, residing at Buckley.