Preview
RONALD F. LOPEZ, State Bar No. 111756
rflopez@nixonpeabody.com
ROSS M. PETTY, State Bar No. 166366
rpetty@nixonpeabody.com
LAUREN M. MICHALS, State Bar No. 184473
imichals@nixonpeabody.com
NIXON PEABODY LLP
One Embarcadero Center, Suite 1800
San Francisco, CA 94111
Telephone: 415-984-8200
Fax: 866-542-6538
Attorneys for Defendant
FORD MOTOR COMPANY
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
APR 24 2014
Clerk of the Court
BY: RAYMOND K. WONG
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
HAROLD KOEPKE and NANCY
KARIDIS-KOEPKE,
Plaintiffs,
vs.
FORD MOTOR COMPANY, et al.,
Defendants.
Case No. CGC-13-276217
EXHIBITS E and F TO THE
DECLARATION OF LAUREN M.
MICHALS IN SUPPORT OF
DEFENDANT FORD MOTOR
COMPANY’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR AN
ORDER PERMITTING DISCOVERY OF
DEFENDANT FORD MOTOR
COMPANY’S FINANCIAL
INFORMATION
HEARING DATE: May 7, 2014
Time: 9:00 a.m.
Dept: 503
Judge: Hon. Terri L. Jackson
TRIAL DATE: June 16, 2014
Complaint Filed: December 3, 2013
Attached are Exhibits E and F to the Declaration of Lauren M. Michals in Support of Ford
Motor Company’s Opposition to Plaintiffs’ Motion for an Order Permitting Discovery of Ford
Motor Company’s Financial Information.
Mt
-l-
EXHIBITS TO DECLARATION - DEFENDANT FORD MOTOR COMPANY'S OPPOSITION TO PLAINTIFFS’ MOTION
FOR AN ORDER PERMITTING DISCOVERY OF DEFENDANT FORD MOTOR COMPANY'S FINANCIAL INFORMATION
14984165.)EXHIBIT ECALIFORNIA COURT OF APPEAL
FIRST APPELLATE DISTRICT
---o000---
PATRICK SCOTT and SHARON SCOTT, NO. A-
Plaintiffs/Appellants,
vs. ALAMEDA COUNTY
NO. RG12-613671
ALLIED PACKING & SUPPLY, et al.,
Defendants/Respondents
and Cross-Appeltlants.
/
REPORTER'S TRANSCRIPT ON APPEAL
FROM FINAL JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
HONORABLE GEORGE C. HERNANDEZ, JR., JUDGE
---000---
TUESDAY, SEPTEMBER 25, 2012
FOR THE PLAINTIFFS/APPELLANTS:
KAZAN, McCLAIN, LYONS, GREENWOOD & HARLEY, PLC
BY: MICHAEL T. STEWART, Attorney at Law
FOR THE DEFENDANT/RESPONDENT/CROSS-APPELLANT:
NIXON, PEABODY, LLP
BY: RONALD F. LOPEZ, Attorney at Law
ROSS M. PETTY, Attorney at Law
REPORTER BY: KIMBERLY L. AVERY VOLUME 20
CSR NO. 5074 PAGES: 5701-6000oOo ODN OO OO BF BON
RRR NN kkk
mo & OO NN =~ OD OO DBD NN OD HO F&F BO NHN =
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
HAYWARD HALL OF JUSTICE
24405 AMADOR STREET, HAYWARD, CALIFORNIA
BEFORE THE HONORABLE GEORGE C. HERNANDEZ, JR., JUDGE
DEPARTMENT 514
~--000---
PATRICK SCOTT and SHARON SCOTT,
Plaintiffs,
vs. No. RG12613671
ALLIED PACKING & SUPPLY, INC.,
et al.,
Defendants.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
TUESDAY, SEPTEMBER 25, 2012
---o000---
Taken before KIMBERLY L. AVERY
CSR No. 5074
Aiken Welch Court Reporters
One Kaiser Plaza, Suite 505
Oakland, California 94612
(510) 451-1580/(877) 451-1580
Fax (510) 451-3797
www.aikenwelch.com24
25
INDEX
WITNESS NAME
MICHAEL ELLENBECKER, PH.D.
CONTINUED DIRECT BY MR. SATTERLEY
CROSS BY MR. LOPEZ
REDIRECT BY MR. SATTERLEY
WILLIAM E. LONGO, PH.D.
DIRECT BY MR. SATTERLEY
EXHIBITS
EXHIBIT DESCRIPTION
Plaintiffs! Article entitled “Asbestos
113 Exposure of Brake Repair
Workers in the United States"
Plaintiffs’ Article entitled "Asbestos
333 Exposure During Brake Lining
Maintenance and Repair”
Plaintiffs’ Article titled “Potential
120 Health Hazards for Persons
Exposed to Asbestos During
The Servicing of Motor
Vehicle Brake and Clutch
Assemblies.”
Plaintiffs’ Article entitled "The
1301 Occupational Disease Hazard"
PAGE
$721
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IDENT
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EVIDEXHIBIT
Defendant's
22061
Defendant's
21701
Defendant's
22054-A
Defendant's
20675
Defendant's
22054-B
Defendant's
22062
EXHIBIT
Court
Exhibit C
EXHIBITS - CONTINUED
DESCRIPTION
Book of the proceedings
of the International
Conference in Johannesburg,
1969, on pneumoconiosis
Document entitled “NIOSH
Health and Safety Guide
for Auto Repair and Body
Shops,"
Document entitled “Asbestos
Brake Emissions,
Environmental Research,“
Document dated October 17th,
1985 on United States
Environmental Protection
Agency letterhead
Study
Harries study
EXHIBITS
DESCRIPTION
Document
IDENT
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EVID
EVIDoO 86 @m NN OD HO RB Ow YD =
NN MY NY NY NY S&S SB Be ee Be Be we Be SB eB
a fF oO YN |= FD © @N DOD OO BF WN =
APPEARANCES OF COUNSEL:
For the Plaintiffs, Patrick and Sharon Scott:
JUSTIN A. BOSL
Kazan, McClain, Lyons, Greenwood & Harley
55 Harrison Street, Suite 400
Oakland, California 94607
(510) 302-1000
For the Plaintiffs, Patrick and Sharon Scott:
JOSEPH D. SATTERLEY
Sales, Tillman, Wallbaum, Catlett &
Satterley
1900 Waterfront Plaza
325 West Main Street
Louisville, Kentucky 40202
(502) 589-5600
For the Defendant, Ford Motor Company:
RONALD LOPEZ
ROSS M. PETTY
Nixon Peabody
One Embarcadero Center, 18th Floor
San Francisco, California 94111
(415) 984-83825754
personal injury cases?
A. Boy, I never -- you better not tell my wife
that if it's true.
It's 30 years, and so 30 times 50,000 would be
a million and a half, and that's -- it certainly wasn't
50,000 the first 10 years, so, no, it couldn't possibile
be 2 million. It might be a million over 30 years.
30 years is a long time.
Q. It is a long time.
A million and a half?
A. I don't think so, but maybe. It could be.
Q. Okay. Never Yooked at it.
Let's talk a little bit about the threshoid
limit values. That was something you put up on the
board behind you, right? And the threshold limit
values were determined by the ACGIH, correct?
A. Yes.
Q. And that's the American Conference of
Governmental and Industrial Hygienists, correct?
A. Yes.
Q. And that is a group of both government
industrial hygienists, is that correct, as well as
industry industrial hygienist?
A. No.
Q. Just government?
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oa no BF ww N
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A, Government and anyone who doesn't work for
industry.
As I mentioned yesterday, I am a member of
ACGIH because I work for the university, but if I
worked for Ford I couldn't be a member of ACGIH.
Q. Those people are excluded. So it's really the
government.
And the 5 million particles per cubic foot,
that, you said, came in in 1948, correct?
A. Yes.
Q. And that was based on a study that was done in
1938 by Mereweather; is that correct?
A. No, it's mostly based on the Dressen and
Dellavale study of U.S. textile.
Q. Excuse me. I misspoke. I meant Dressen in
1938, correct?
A. Yes.
Q. And in the Dressen study they said -- and that
was a textile manufacturing where there were high
levels of pure asbestos dust in the environment,
correct?
A. No, there were high levels of dust containing
asbestos, but the dust wasn't pure asbestos.
Q. Did they have pure asbestos then?
A. But the dust wasn't pure asbestos. It depended
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on the part of the process. But, as I recall, the
Dressen study it varied from 10 to 20 percent of the
dust was asbestos.
Q@. Okay. And the thought there was that if you
kept the level below the 5 million particles per cubic
foot you wouldn't see disease, correct?
A. They measured the exposures. They had some
ventilation at those plants, and they looked for
asbestosis among the workers, and they concluded that
if the levels were held below that
5-million-particles-per-cubic-foot level it's not
likely that workers would develop asbestosis, that's
correct.
Q. Okay. And then let's just go forward really
quickly. You said in 1968 the ACGIH reduced the level
to 12 fibers per cubic centimeter, correct?
A. I think they just proposed it at 12. I don't
think it was ever adopted.
Q. And you mentioned a Mr. Cralley. Who is
Mr. Cralley?
A. I don't know if I mentioned him or not, but he
was another editor of the Patty's Industrial Hygiene
after Patty --
Q. Was he part of the American Conference of
Governmental Industrial Hygienists?
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/125770
Cralley, we've got Langer, we've got Selikoff, correct?
A. Yes.
Q. And others looking at the disease
pneumoconiosis, which is short for lung disease,
correct?
A. Lung disease caused by dust, yes.
Q. Got it.
By the way, are you familiar with -- let me
just ask you this, if you turn in your book to, it
looks like page 37, “Dust Problems in the Use of
Asbestos" by Ernest Walther (phonetic), former member
of the Research Advisory Committee Engineering,
Asbestosis Research Project of the Pneumoconiosis
Research Unit, Council for Scientific Research.
Are you familiar with that article?
A. Yes.
Q. Okay. And do you view that as authoritative?
A. Well, it was presenting -- I'd say the
discussion of the problems -- yeah, it was focused on,
as I recall, mining of asbestos, and so it was, I
think -- yes, it was authoritative for that, yes.
Q. Okay. And so let me have you turn to page 39.
Do you have page 39 there?
A. Yes.
Q. And on page 39 he's talking about the product
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brake linings, correct?
A. Yes.
Q@. Okay. 4-2?
A. Yes.
Q. Okay. Could you read that for us.
MR. SATTERLEY: Your Honor, I don't think
there's proper foundation laid this is authoritative.
THE COURT: A couple more foundational
questions, Counsel.
BY MR. LOPEZ:
Q. Mr. Walther, he published -- first of all, this
was a paper presented at the preceding of the
pneumoconiosis proceeding in Johannesburg in 19697
A. Yes.
Q. So he's making a presentation to all these
world-renowned experts on asbestos: is that correct?
A. That's correct.
Q. And this was a paper that he presented on dust
problems in the use of asbestos products, correct?
A. Yes.
Q. Okay. And there he's identifying various
products and any dust problems associated with those
products, correct?
A. Yes.
Q. And in terms of the historical industrial
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hygiene, this would be considered authoritative,
correct?
A. Yes.
Q. Okay. Could you please read section 4-2 on
brake linings.
A. “It has been suggested that the braking of
countless vehicles fitted with brake linings containing
a large percentage of asbestos fiber,” parentheses, "30
to 50 percent, mostly chrysotile in combination with
resins, polymers, oxides, pigments, metals, carbon
black and graphite, would produce hazardous dust.”
Q. Okay. And then do you want to go ahead and
read section 4.2.1, which is the next paragraph.
A. “Investigators have found no substance in these
allegations. Their theory of what happens to the
asbestos in brake linings is explained by J.R. Lynch
that --"
Q. Why don't you stop right there.
J.R. Lynch, who is J.R. Lynch?
A. He's an industrial hygienist.
Q, Worked for the government?
A
Did then, yes.
Q. In 1968 -- his name is Jeremiah Lynch: is that
correct?
A. Yes.
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Q@. So right here in 1968 Jeremiah Lynch does a
study of asbestos brake dust, correct?
A. Yes.
Q. Okay. Go ahead and read what was presented in
this paper at Johannesburg, South Africa, in 1969.
A. So according to Lynch, “Wear occurs not by
abrasion of the lining by the drum but by the
production of minute areas of intense heat at the point
of contact between drum and lining. Decomposition not
only of the binder but also of the asbestos occurs at
these locations as the breakdown temperature of
chrysotile asbestos is about 900 degrees Fahrenheit is
exceeded. The decomposition of products will thus
include no free asbestos fibers but a different mineral
resulting from the thermo-metamorphosis of the
asbestos.”
Q. Okay. And then Mr. Walther in this
presentation at the conference, he goes on to say in
the next paragraph, and basically he's just quoting the
Lynch article, and in quoting the Lynch article, at the
conclusion of the Lynch article it is that because of
the -- let me just find the quote.
"Thus, although urban air contains a few free
fibers as a result of brake lining wear, they represent
a very small proportion of the total asbestos used in
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/125774
the manufacture of brakes and many sources of
respirable fibers not associated with asbestos products
have been identified to be present in urban air and the
free fibers from the brake linings appear to be an
inconsequential health factor for urban air pollution,”
correct, that's what Mr. Walther reported about the
Lynch study at the conference on pneumoconiosis,
correct?
A. Correct.
Q. Now, they actually have discussions about
what's been presented during the presentation of the
papers, correct, if you turn to page 51?
You see that?
A. Yes.
Q@. And there's a discussion that's occurred. And
so this typically happens at conferences, right, so
there's a presentation of the papers and then the
preeminent experts that are listening will have a panel
discussion, correct?
A. Yes.
Q. And one of the preeminent experts that was
chairing actually this series of papers that was given
was Dr. Selikoff, correct?
A. Yes.
Q. And it's true that Dr. Selikoff reported at the
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12wot
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conference that brake linings do not constitute a
hazard, correct?
A. He's quoted here in the discussion as saying
that, yes.
Q
Okay. And actually right before that there's
other discussion by Dr. Smither and Dr. Cralley who we
have also discussed, right?
A. Yes,
Q. And what they are discussing is a study by
Hickish and Knight in 19 -- what is it -- 68, correct?
A. Yes.
Q. And you are familiar with the Hickish and
Knight study?
A. Yes.
Q. And Hickish and Knight did a study, and that
was Ford UK, correct?
A. Yes.
Q. So it preceded this, the pneumoconiosis
conference, correct?
A. Yes.
Q. And in 1968 Hickish and Knight, looking at a
dealership where a mechanic performed 11 brake changes
on 11 different cars, correct?
A, Something like that, yes.
Q. It was 11.
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12ae
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They found that the time-weighted average
exposure was .68 fibers per cc over those 11 brake jobs
that were done that day, correct?
A. Yes.
Q. And that was the time-weighted average. So
what we're talking about, that's not a peak, that's the
average throughout the day doing 11 brake jobs
straight, correct?
A. Yes.
Q. And essentially at the pneumoconiosis
conference they are reporting on that, right, the
Hickish and Knight paper --
A.
Q.
Yes.
-- in this discussion and concluding --
MR. SATTERLEY: Your Honor, I would object to
the discussion as hearsay. There's no foundation that
a discussion is authoritative. It's not the same as a
paper.
THE COURT: The objection is overruled.
You can do redirect on that.
MR. SATTERLEY: Yes, Your Honor.
BY MR. LOPEZ:
Q. So in terms of following the paper by
Dr. Cralley, by Dr. Walther on products specifically
looking at brake linings in 1969, the panelists report
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/124
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that brake linings don't appear to be a health problem,
correct?
A. I think Dr. Selikoff changed his mind shortly
thereafter when his team did their studies in the
1970s,
Q. Fair enough.
You are talking about 1975, '76, right?
A. Yes.
Q, Okay. Let's just get the timeline right.
We're at ‘69 right now.
Now, let's just go back to the OSHA for a
minute because OSHA comes in, we said 1970, takes
affect in 1971 at 12 and they reduce it to five, those
are the TWA's, correct?
A. Yes.
Q. And then you discussed how the OSHA PEL's are
slightly different than the TLV's because the TLV's
were threshold. We thought you wouldn't get any
disease, correct?
A. Yes.
Q. And you said, well, the OSHA PEL's, you know,
we're protective, but we're not eliminating all risk;
is that right?
A. Yes.
Q. In fact, when OSHA sets the PEL’s, what they do |
Aiken-Wetch Scott vs. Allied Packing, et al. 9/25/125778
is they base it on what's called a linear no threshold
model.
Are you familiar with that?
A. Yes.
Q. And the concept is that we take data from high
occupationally exposed cohorts where we see disease and
we extrapolate it down to very, very low exposures,
correct?
A. Yes.
Q. And so the linear no threshold model
suggests -- which is a model -- by the way, it's a
model, correct?
A. Yes.
Q. So the idea is they don't have actual data down
at very, very low exposures, but we will extrapolate
from high data to very low data, and for regulatory
purposes we're going to assume it could cause disease,
correct?
A. And they concluded that, as I said yesterday,
at the current PEL there's a residual risk of
developing mesothelioma based on that model.
Q. Based on an extrapolated model, correct?
A. Yes.
Q.
Okay. Now, the OSHA PEL's that you put up
there, they apply to all employers. I think you said
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that, correct?
A. Yes.
Q. And that would be all employers including
service stations, correct?
A. Yes.
Q. And it was the employers' obligation to know
about the PEL's and to follow the PEL's, correct?
A. If he was in violation of them he could be
cited for that, yes.
Every employer has the responsibility to
provide a safe workplace for the employees, and that
includes meeting the PEL's, yes.
Q. Okay. And is that another way of saying that
there are legally binding limits placed on employers,
correct?
MR. SATTERLEY: Objection, Your Honor. Calls
for speculation.
THE COURT: Sustained only to the extent we're
talking about industrial hygienists.
BY MR. LOPEZ:
Q. Okay. And that it was the employer's
obligation, as you've defined it for us, that was from
the inception of OSHA, correct?
A. Yes.
Q. Okay. And if the employer was exceeding the
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PEL‘s, he had the obligation to reduce the dust,
correct?
A. Yes.
Q. And post warnings and do other things, correct?
A. Yes.
Q. In fact, OSHA even governs not only things like
asbestos, but they govern things like, you know, air
compressors and the pressure that could be used out of
an air compressor, correct?
A. For blowing, yes.
Q. Sure.
A. Yes.
Q. In fact, it's 15 pounds per square inch,
correct?
A. That is -- I'm not safety, but I think that
sounds about right.
They restrict the pressure that could be used
in an air gun, that's right, for blowing dust around.
Q. So this idea of blowing out, there was actually
an OSHA limit that was placed on service stations and
others who use compressed air and how much compressed
air, because, as you defined it, it was kinetic energy,
not only could it be asbestos dust, but there could be
particles and other particulates, correct?
MR. SATTERLEY: Objection. Foundation. Beyond
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/125781
the scope of his expertise,
THE COURT: I think it was foundation, but I'1]
sustain it to the foundation.
You can ask foundational questions about the
use of the air compressor expressed by Dr. Hammer.
BY MR. LOPEZ:
Q.
Well, let me put it this way, Doctor, you wou
agree that the use of air compressors in commercial
facilities, garages and so forth is regulated by OSHA,
correct?
A. Yes.
Q. And it's regulated in terms of the amount of
pressure that could be used in air compressors for
blowing things around, correct?
A. Yes,
Q. And whether it's -- you think it's probably 15
pounds, correct?
A. Sounds about right, yes.
Q. Okay. And it's the employer's responsibility
to make sure that they are not using excessive
pressure, correct?
A. Yes.
Q. Okay. Now, one of the things that's available
to employers are the PEL's, correct?
A. If they know about them, yes.
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Q. Well, they are available to them, correct, al?
employers?
A. Yes.
Q. Okay. Another thing you talked about is the
Current Intelligence Bulletin.
You recall that?
A. Yes.
Q. And that came in 1975, I think you talked about
Rohl, right, and Lorimer?
A. Right. ‘
Q. And that Current Intelligence Bulletin actually
was the result of the publication by Rohl and Lorimer
of the paper.
And, first of all,
the Current Intelligence
Bulletin that you discussed, that was something that
was issued by NIOSH, correct?
A. Yes.
Q. NIOSH is the scientific research arm of OSHA,
correct?
A. They are independent of OSHA, but they do
research.
Q. They do the research, okay.
And the Current Intelligence Bulletin, in fact,
what it did is said, based upon the Rohl and Lorimer
study that came out of Mt. Sinai and the Selikoff
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And when we say the “background,” that means
it's in the air 24 hours a day, correct, it's just
there?
A. That's correct.
Q. Okay. Now, let's turn to the asbestos content
in brake wear debris.
Now, you, yourself have never done any
examination of any brake or dust clutch (sic) that
collects to determine what the asbestos dust content
is, correct?
A. Correct.
Q. Now, hat studies have
Okay. you would agree
actually looked at that and analyzed the residual
asbestos content in brake or clutch dust, correct?
A. Yes.
Q. And the reason it's residual is because, as
Jeremiah Lynch found in 1968, braking transmits
significant kinetic energy through the braking system,
there's significant heat and shearing that goes on with
the friction lining, correct?
A. Yes.
Q. And, in fact, the idea is for the friction
lining to be sacrificed. So, the motion is converted
into heat that is centered at the face of the friction
lining, right?
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A. Yes.
Q. That’s how it works, correct, that's what the
friction is, we're generating heat, high heat, correct?
A. Yes.
Q. And that’s why in 1968 when Jeremiah Lynch
first looked at that they found, in fact, that there
were insignificant residual asbestos fibers in the
brake wear debris?
A. There were several studies, and it found in the
few percent of the total dust is still asbestos fibers.
It's not zero. It's -- that's why there's still
exposure when you blow out that debris. If it was zero
there would be -- it wouldn't be 35 per cubic
centimeter, it would be zero.
Q. Well, first of all, most studies have found
that it's less than one percent.
You would agree with that, correct?
A, Others have found -- I think Lorimer said five
percent.
Q. Let me ask you this -- you are a professor
You teach classes -- have you ever heard of the idea
that -- called cherry picking data, have you ever heard
of that?
A, Sure.
Q. What is cherry picking data?
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/125794
A. Picking only the data you want to make your
point.
Q. Okay. So, if we looked at Lorimer that's going
to make your point, isn't it, it's going to be higher
than one percent, right?
A. That's different than cherry picking. If you
have one study that shows it could be 10 percent, that
means it isn't always less than one percent.
Q. Let's take a look at Lynch, 1968, found less
than one percent, correct?
A. Yes.
Q@. U.S. Public Health Service, correct?
A. So, I think I said yesterday, maybe I didn't,
it's lucky that most of it is not asbestos or the
exposure would be even higher. It's the residual
asbestos that we're worried about.
Q. If you could answer my question, we could go a
little faster.
Hickish and Knight, 1970, found less than one
percent, correct?
A. Sure.
GQ. Published in the peer-review literature,
correct?
A. Sure.
Q. So was Lynch, 1968, correct?
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12Oo © © N OD HF PF WY DN
N 2 OM BB OW MY =
5795
Yes.
Q. Anderson in 1973, Anderson who worked for Ford
Motor Company, performed very precise tests on what are
called dynamometers to analyze the residual brake dust,
correct?
A. Yes.
Q. And did you look at that study?
A. Yeah, it's -- he --
MR, SATTERLEY: Your Honor --
THE WITNESS: -- he presents the results in
mass terms. It's harder to compare to other studies.
BY MR. LOPEZ:
Q. Well, he states that it's less than .02 percent
in the brake lining debris in the dynamometer tests
that he conducted, correct?
A. I don’t remember that number.
Q. You want to check?
A. No. If you say it is, that's what it was.
Q. You would agree with that.
Jacko and DuCharme, Jacko and DuCharme, Bendix
under contract with the EPA looked at it in 1973,
correct?
A. Something like that.
Q. And Jacko and DuCharme found that the average
asbestos content in brake wear debris is less than .23
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12percent, correct?
A. Something like that.
5796
Q. Okay. Williams and Muhibaier, are you familiar
with Williams and Muhlbaier? That was from actually GM
that looked at this.
A. NO, I don’t remember that.
Q. You never looked at Williams and Muhlbaier,
published study?
A. I don't recall.
Q.
sure if you've seen it or not.
See how my system is here.
Here it jis.
This has been marked as Defendant's Exhibit
the
Let me take a look just in case. We'll make
22054, and I think -- is that a correct number? It's
okay, and we'll give it an A because it has...
So, for the record, 22054-A entitled "Asbestos
Brake Emissions, Environmental Research," 1982, Ronald
Williams and Gene Muhlibaier -- I'm sure I've butchered
that name -- M-U-H-L-B-A-I-E-R -- from the General
Motors research laboratories.
(Defendant's Exhibit No. 22054-A
Marked for Identification.)
BY MR. LOPEZ:
Q. Let me hand you this. I'm sorry.
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/122 Oo 6 NN OD oO RF OW NM =
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coc Cc ON OD GO FB YN
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Take a look, just see if you've ever looked at
that when you were preparing for your opinions to give
in this case?
A. Yes, I have seen this.
Q. Okay. And you'd agree that they found debris
of point -- asbestos fibers in brake wear debris of
.029 percent, correct?
A. Yes.
Q. Okay.
Chaw (phonetic), 1983, are you familiar with
Chaw, 1983?
A. I think so.
Q. And Chaw, again, they found -- and, by the way,
Chaw, it was Chaw and Braden, this was for the EPA, so
this was the EPA-conducted study in 1983, it was
published by the Society of Automotive Engineers,
correct?
A. Yes.
Q. And Chaw found only .018 percent asbestos in
brake wear debris, right?
A. Something like that.
Qa. Okay. And, in fact, they reported their
results agreed well with those of Williams and
Muhtbaier who we just looked at, correct?
A. Yes.
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/125798
Q. And then Chehie (phonetic) in 1989, are you
familiar with Chehie 19897
A. Yes,
Q. Chehie in 1989 was a NIOSH study. So that's
the research arm of NIOSH we've been talking about,
correct?
A. Yes.
Q. And they report that asbestos fibers was less
than one percent, correct?
A. Yes.
Q. Okay. So let me just see, we have two EPA
studies, Jacko '73, Chaw ‘83, the U.S. Public Health
Service and Lynch in 1968 and the NIOSH study in 1989,
all reporting brake dust -- asbestos in brake dust at
less than one percent, in many cases far, far less than
one percent, correct?
Yes.
Q. And what you wanted -- what you chose to report
to us was a high number that Rohl and Lorimer found in
1976, correct?
A. That‘s another study out there.
Q. It's cherry picking, isn't it?
A. No, it shows the range. That was a well
conducted study, in my opinion.
Q. Okay. Fair enough.
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oO oC ODN OW GF RB WOW ND
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A. I'd have to look at the article.
Q. You don't know. Okay.
But let's turn to -- let's turn to the
literature. We talked about Hickish and Knight.
NIOSH did a whole series of studies. In fact,
NIOSH, 1976, you told us the Current Intelligence
Bulletin -- was it ‘76 or '75?
A. ‘75.
Q. Excuse me. 1975, the Current Intelligence
Bulletin out of NIOSH says there's a potential health
hazard. One of the results of NIOSH's Current
Intelligence Bulletin, not only sending that out to all
operators, was that they said, "We want to look at the
industrial hygiene of this,” correct?
A. Yes,
Q.
So NIOSH did a whole series of studies looking
at what brake servicing -- what the industrial hygiene
was associated with servicing brakes, right?
A. Yes.
Q. And if you look through that -- have you looked
at that data?
A. Some of their health hazard evaluations, yes.
Q. And that data actually, if you look at it,
confirms that on a time-weighted average -- so what
they did is they went into a whole series -- this is
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oOo fom NO Oo RB WD
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NIOSH. This is the United States government, correct?
A. Yes.
Q. They go into a whole series of garages around
the country and they take industrial hygiene
measurements, right?
A. Yes.
Q. You chose not to report to the jury on that,
didn't you?
A, There was a lot of literature out there.
Q. Okay. Fair enough.
What they found, and that was after 1975, what
they found was that, in fact, when we looked at all the
data it was, in general, less than the PEL, what you've
put up there on the board, correct? The time-weighted
average for brake mechanics servicing brakes in these
facilities was less than the PEL, correct?
A. And still for a carcinogen, in my opinion,
significant exposures from these operations.
Q. And the PEL -- and we‘re talking about the
current PEL of .1, correct?
A. I don't know that they all were tess than the
current PEL. I don't recall that.
Q. Okay. But on that order of magnitude, correct?
A, They are time-weighted average. We can get low
levels, right, if you don't do a jot of brake jobs.
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oO TF FB WN
REPORTER'S CERTIFICATE
I, KIMBERLY L. AVERY, a Shorthand Reporter, State
of California, do hereby certify:
That said proceedings were taken before me at said
time and place, and was taken down in shorthand by me,
a Certified Shorthand Reporter of the State of
California, and was thereafter transcribed into
typewriting, and that the foregoing transcript
constitutes a full, true and correct report of said
proceedings that took place;
IN WITNESS WHEREOF, I have hereunder subscribed my
hand this 9th of April 2013.
KIMBERLY L. AVERY, CSR No. 5074
State of California
Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12EXHIBIT F24
25
CALIFORNIA COURT OF APPEAL
FIRST APPELLATE DISTRICT
ae 00077
PATRICK SCOTT and SHARON SCOTT, NO. A-
Plaintiffs/Appellants,
ALAMEDA COUNTY
vs. NO. RG1L2~-613671
ALLIED PACKING & SUPPLY, et al.,
Defendants/Respondents
and Cross-Appellants.
REPORTER'S TRANSCRIPT ON APPEAL
FROM FINAL JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
HONORABLE GEORGE C. HERNANDEZ, JR., JUDGE
me 0006 =
WEDNESDAY, SEPTEMBER 26, 2012
FOR THE PLAINTIFFS/APPELLANTS:
KAZAN, McCLAIN, LYONS, GREENWOOD & HARLEY, PLC
BY: MICHAEL T. STEWART, Attorney at Law
FOR DEFENDANT/ RESPONDENT /CROSS~APPELLANT:
NIXON, PEABODY, LLP
BY: RONALD F. LOPEZ, Attorney at Law
ROSS M. PETTY, Attorney at Law
REPORTED BY: CAROL HARABURDA VOLUME: 21
RPR, CSR NO. 8052 PAGES: 6001-6300SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
HAYWARD HALL OF JUSTICE
24405 AMADOR STREET, HAYWARD, CALIFORNIA
BEFORE THE HONORABLE GEORGE C. HERNANDEZ, JR., JUDGE
DEPARTMENT NO. 514
—--000-——
PATRICK SCOTT and SHARON SCOTT,
Plaintiffs,
vs. CASE NO. RG12-613671
ALLIED PACKING & SUPPLY, et al.,
Defendants.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
WEDNESDAY, SEPTEMBER 26, 2012
~~~ 000---
Taken Before CAROL HARABURDA
RPR, CSR NO, B052
AIKEN WELCH COURT REPORTERS
One Kaiser Plaza, Suite 505
Oakland, California 94612
(510) 451-1580/(877) 451-1580
www.aikenwelch.com6107
asbestos, correct?
A. As a general principle I think the lower the
exposure the more effective our defense mechanisms are.
Q. And the body has defense mechanisms to deal with
dust, including asbestos, correct?
A. That's correct.
Q. Now, with respect to Mr. Scott, you have not
attempted to provide us any risk estimate of what his risk
was that could be associated or attributed to work on
motor vehicles, correct?
A, Correct, I can't do that.
Q. Okay. So there is no quantitative estimate that
you've provided, correct?
A. I cannot provide a quantitative estimate for that
exposure or any other exposure that he had.
Q. Okay. Let's talk a little bit about -~ let's
talk a little bit about state of the art. I don't think
you said in your deposition about state of the art. Do
you know what state of the art is?
A, Yes.
Q. And you gave a little state-of-the-art testimony
here this morning?
A. Correct. A wee bit.
Q. Okay. And the wee bit was you were kind of
giving some of the scientific and medical history with
Aiken-Welch Scott vs. Allied Packing 9/26/126108
respect to asbestos-related disease, correct?
A. Correct.
QO. And what you said, as I understood, is if we go
back to the 1930s, asbestosis was recognized as a disease
and you related to that to the Merewether studies?
A. Actually, there's more, but I pointed out
Merewether. There's many more studies than that.
Q. Sure. And in that study in the 1930s the thought
was asbestosis, which you explained this morning was the
scarring of the lungs, the reaction, correct?
A. Yes.
Q. The thought in the 1930s, that if you could keep
the dust levels low, below five million particles per
cubic foot, they wouldn't see evidence of asbestosis?
A. Merewether didn't mention that, but that was --
in 1937 from another study done in the United States there
was a@ suggestion, at least it was considered a tentative
threshold was five million particles per cubic foot, which
was actually adopted.
Q- Okay. And so moving forward, that was Dresden,
through the United States Public Health Service, that
said -~ they re-did the Merewether study and said, keep
the dust below five million particles, or at least the
recommended threshold was five million particles per cubic
foot for eliminating asbestosis, correct?
Aiken-Welch Scott vs. Allied Packing 9/26/126109
co
A. Right. They didn't re-do the Merewether. They
did their own study.
Q. Right.
A. Somewhat similar to what Merewether did.
Q. They both looked at textile factories, correct?
And Merewether did it in Great Britain, Dresden from the
United States Public Health Service in the U.$., correct?
A. Right, in North Carolina.
Q. So one of the things you talked about was latency
and this concept of latency. When you were referring to
latency in the 1930s and the Merewether knew about
latency, the latency they were talking about was latency
with respect to asbestosis, correct?
A. Correct,
Q. Okay. And then if yo t~
think you indicated 1960 is when there was a recognition
in the scientific literature that mesothelioma can be
causally related to exposure to a form of asbestos,
correct?
A. Right.
QO. And that was the Wagner study in 1960, is that
correct that you were referring to?
A. Correct. That's correct.
Q. Dr. Wagner was a researcher in South Africa,
correct?
Aiken-Welch Scott vs. Allied Packing 9/26/1224
25
6110
A. He was a pathologist in South Africa.
Q. And South Africa is where they mine crocidolite
asbestos, correct?
A. Correct.
Q. And he was looking at individuals in cases which
had high exposures to crocidolite asbestos, correct?
A. Well, some of the men, high exposure to asbestos,
crocidolite asbestos. Some were paraoccupational exposure
te crocidolite.
That is the significant other of people who are
exposed to crocidolite, and some had other exposures which
were not characterized exactly what they were.
The people who were exposed to asbestos in
industry, and it isn't clarified in the article what their
exposure was.
Q. Okay. So in 1360 we have this relationship
between mesothelioma and exposure to crocidolite,
correct?
A. Well, we have a relationship exposure to
asbestos-causing mesothelioma of which a significant
portion were crocidolite, but it was evident that the
world concluded that this was not just an issue of
crocidolite, because in response to that study, studies
were done in New York City, studies were done in
Liverpool, England, studies were done in Belfast, studies
Aiken-Welch Scott vs. Allied Packing 9/26/126111
were done in Germany, and these were not people exposed to
crocidolite. That is, the general principle had been
applied, that is exposure to asbestos causes
mesothelioma.
24
29
Q. Tt sounds like what you're saying is the
researchers were interested to see if mesothelioma was
associated with other forms of asbestos following 1969?
A. Right. So the general the conclusion was right
om -7
Q. Let me just go with question and answer, please.
THE COURT: Let him finish. I think the question
was answered. You may ask another question.
BY MR. LOPEZ:
Q. I think you mentioned Dr. Selikoff, do you
recall?
A. T did.
Qo. You mentioned Dr. Churg, right?
A. Jacob Churg.
Q. Jacob Churg.
A. The father of Andrew Churg.
a. And who's Andrew Churg?
A. He's a pathologist in British Columbia.
Q. And an expert in asbestos-related disease?
A. Yes.
Q. On the United States Canadian Mesothelioma Panel
Aiken-Walch Scott vs. Allied Packing 9/26/126112
1 that looks at cases of mesothelioma worldwide?
2 A. Correct.
3 Q. Okay. But his father also worked with Dr.
4 Selikoff at Mt. Sinai, correct?
5 A. Right. Also a pathologist expert in pathology in
6 asbestos-related disease.
7 Q. It ran in the family there.
8 A. It definitely ran in the family.
3 QO. And in 1964 you mentioned this, there was a
10 publication of the New York Academy of Sciences where Dr.
1L Selikoff£ presented information on mesothelioma, correct?
12 A, He did and others did.
13 Qo. And others. [It was a large meeting?
14 A. Right. Right.
15 Oo. What they did is they followed insulators,
16 correct?
17 A. Tow
18 Q. Strike that --
13 A. Selikoff did, that's correct.
20 Qo. Let me rephrase the question just so we get a
2i elear record -- or question.
22 The research that Dr. Selikoff presented was
23 research that Dr. Selikoff and his group did on over
24 17,000 insulators that were members of a union and looking
25 for asbestos disease in that group?
Aiken-Welch Scott vs. Allied Packing 9/26/126113
A. No,
Qo. Ch, how many were there?
A. What he did is the study, which he reported in
'€4 ~- and published in '64 and '65 was of the
New York-New Jersey local which had 600~plus workers.
Q. Okay. And then he followed more insulators after
that, but he started with 600, correct?
A. 609 plus.
Q. Okay. And these were men who were insulators and
they worked commercially with insulation, correct?
A. Right, this was their career.
Q. Right. And that was -- it wasn't just shipyards,
it was through all industrial facilities, correct?
A. Correct.
Q. And, in fact, the type of exposure they had was
mixed exposure to both crocidolite and amosite, right?
A. Well, eventually those that were older were
originally exposed only to chrysotile.
Q. Okay. And that was in 1964, the first results
were presented of this study, is that correct?
A. Correct.
Q. And that was really the first study of
insulators, correct? A large cohort of insulators?
A. Right.
There had been a study earlier in 1946 of
Aiken-Welch Scott vs. Allied Packing 9/26/126114
Fleischer-Drinker of some shipyard workers, correct?
A. Correct.
Q. They were also insulators, correct?
A. Correct.
Q. Tn 1946 they were only looking at asbestosis, and
the conclusion there was that if you kept the dust low you
wouldn't see any incidents of asbestosis, correct?
A. Correct.
Q. The flaw in that study, that's kind of pointed
out from time to time, including by Dr. Selikoff, is they
really didn't look at latency, what you were taking
about?
A. Right. They -- even though latency was
well-established and had been established at least 16
years before they published their work, they ignored
latency period.
a.
So -- and these guys were well respected.
Right.
That was Fleischer -- It can't relfember how it goes. One
was at Harvard and was an assistant surgeon general,
right?
A. Brinker was an industrial hygienist from Harvard
and Fleischer was the assistant surgeon general. He was
at least an officer in the military. I'm not sure what
else he did.
Q. Anyway, that brings us up roughly to the 19 --
Aiken-Welch Scott vs. Allied Packing 9/26/1212
13
14
REPORTER'S CERTIFICATE
~~-000---
I, CAROL HARABURDA, do hereby certify that I am a
certified shorthand reporter of the State of California
and duly appointed shorthand reporter.
That the foregoing pages are a full, true, and
correct transcript of my shorthand notes taken in the
above-mentioned matter.
IN WITNESS WHEREOF, I have hereunto subscribed my
name this 2nd day of APRIL 2013.
f * wl Ww tn bvtintiad te.
Mann
CAROL HARABURDA, RPR, CSR NO. 8052
Certified Shorthand Reporter
Court Certified Realtime Reporter
State of California
Aiken-Welch Scott vs. Allied Packing 9/26/12
Preview
RONALD F. LOPEZ, State Bar No. 111756 rflopez@nixonpeabody.com ROSS M. PETTY, State Bar No. 166366 rpetty@nixonpeabody.com LAUREN M. MICHALS, State Bar No. 184473 imichals@nixonpeabody.com NIXON PEABODY LLP One Embarcadero Center, Suite 1800 San Francisco, CA 94111 Telephone: 415-984-8200 Fax: 866-542-6538 Attorneys for Defendant FORD MOTOR COMPANY ELECTRONICALLY FILED Superior Court of California, County of San Francisco APR 24 2014 Clerk of the Court BY: RAYMOND K. WONG Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO HAROLD KOEPKE and NANCY KARIDIS-KOEPKE, Plaintiffs, vs. FORD MOTOR COMPANY, et al., Defendants. Case No. CGC-13-276217 EXHIBITS E and F TO THE DECLARATION OF LAUREN M. MICHALS IN SUPPORT OF DEFENDANT FORD MOTOR COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION FOR AN ORDER PERMITTING DISCOVERY OF DEFENDANT FORD MOTOR COMPANY’S FINANCIAL INFORMATION HEARING DATE: May 7, 2014 Time: 9:00 a.m. Dept: 503 Judge: Hon. Terri L. Jackson TRIAL DATE: June 16, 2014 Complaint Filed: December 3, 2013 Attached are Exhibits E and F to the Declaration of Lauren M. Michals in Support of Ford Motor Company’s Opposition to Plaintiffs’ Motion for an Order Permitting Discovery of Ford Motor Company’s Financial Information. Mt -l- EXHIBITS TO DECLARATION - DEFENDANT FORD MOTOR COMPANY'S OPPOSITION TO PLAINTIFFS’ MOTION FOR AN ORDER PERMITTING DISCOVERY OF DEFENDANT FORD MOTOR COMPANY'S FINANCIAL INFORMATION 14984165.)EXHIBIT ECALIFORNIA COURT OF APPEAL FIRST APPELLATE DISTRICT ---o000--- PATRICK SCOTT and SHARON SCOTT, NO. A- Plaintiffs/Appellants, vs. ALAMEDA COUNTY NO. RG12-613671 ALLIED PACKING & SUPPLY, et al., Defendants/Respondents and Cross-Appeltlants. / REPORTER'S TRANSCRIPT ON APPEAL FROM FINAL JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA HONORABLE GEORGE C. HERNANDEZ, JR., JUDGE ---000--- TUESDAY, SEPTEMBER 25, 2012 FOR THE PLAINTIFFS/APPELLANTS: KAZAN, McCLAIN, LYONS, GREENWOOD & HARLEY, PLC BY: MICHAEL T. STEWART, Attorney at Law FOR THE DEFENDANT/RESPONDENT/CROSS-APPELLANT: NIXON, PEABODY, LLP BY: RONALD F. LOPEZ, Attorney at Law ROSS M. PETTY, Attorney at Law REPORTER BY: KIMBERLY L. AVERY VOLUME 20 CSR NO. 5074 PAGES: 5701-6000oOo ODN OO OO BF BON RRR NN kkk mo & OO NN =~ OD OO DBD NN OD HO F&F BO NHN = SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA HAYWARD HALL OF JUSTICE 24405 AMADOR STREET, HAYWARD, CALIFORNIA BEFORE THE HONORABLE GEORGE C. HERNANDEZ, JR., JUDGE DEPARTMENT 514 ~--000--- PATRICK SCOTT and SHARON SCOTT, Plaintiffs, vs. No. RG12613671 ALLIED PACKING & SUPPLY, INC., et al., Defendants. REPORTER'S TRANSCRIPT OF PROCEEDINGS TUESDAY, SEPTEMBER 25, 2012 ---o000--- Taken before KIMBERLY L. AVERY CSR No. 5074 Aiken Welch Court Reporters One Kaiser Plaza, Suite 505 Oakland, California 94612 (510) 451-1580/(877) 451-1580 Fax (510) 451-3797 www.aikenwelch.com24 25 INDEX WITNESS NAME MICHAEL ELLENBECKER, PH.D. CONTINUED DIRECT BY MR. SATTERLEY CROSS BY MR. LOPEZ REDIRECT BY MR. SATTERLEY WILLIAM E. LONGO, PH.D. DIRECT BY MR. SATTERLEY EXHIBITS EXHIBIT DESCRIPTION Plaintiffs! Article entitled “Asbestos 113 Exposure of Brake Repair Workers in the United States" Plaintiffs’ Article entitled "Asbestos 333 Exposure During Brake Lining Maintenance and Repair” Plaintiffs’ Article titled “Potential 120 Health Hazards for Persons Exposed to Asbestos During The Servicing of Motor Vehicle Brake and Clutch Assemblies.” Plaintiffs’ Article entitled "The 1301 Occupational Disease Hazard" PAGE $721 5745 5844 5855 IDENT 5731 5732 5732 5736 EVIDEXHIBIT Defendant's 22061 Defendant's 21701 Defendant's 22054-A Defendant's 20675 Defendant's 22054-B Defendant's 22062 EXHIBIT Court Exhibit C EXHIBITS - CONTINUED DESCRIPTION Book of the proceedings of the International Conference in Johannesburg, 1969, on pneumoconiosis Document entitled “NIOSH Health and Safety Guide for Auto Repair and Body Shops," Document entitled “Asbestos Brake Emissions, Environmental Research,“ Document dated October 17th, 1985 on United States Environmental Protection Agency letterhead Study Harries study EXHIBITS DESCRIPTION Document IDENT 5765 5786 5796 5810 5818 5835 IDENT 5874 EVID EVIDoO 86 @m NN OD HO RB Ow YD = NN MY NY NY NY S&S SB Be ee Be Be we Be SB eB a fF oO YN |= FD © @N DOD OO BF WN = APPEARANCES OF COUNSEL: For the Plaintiffs, Patrick and Sharon Scott: JUSTIN A. BOSL Kazan, McClain, Lyons, Greenwood & Harley 55 Harrison Street, Suite 400 Oakland, California 94607 (510) 302-1000 For the Plaintiffs, Patrick and Sharon Scott: JOSEPH D. SATTERLEY Sales, Tillman, Wallbaum, Catlett & Satterley 1900 Waterfront Plaza 325 West Main Street Louisville, Kentucky 40202 (502) 589-5600 For the Defendant, Ford Motor Company: RONALD LOPEZ ROSS M. PETTY Nixon Peabody One Embarcadero Center, 18th Floor San Francisco, California 94111 (415) 984-83825754 personal injury cases? A. Boy, I never -- you better not tell my wife that if it's true. It's 30 years, and so 30 times 50,000 would be a million and a half, and that's -- it certainly wasn't 50,000 the first 10 years, so, no, it couldn't possibile be 2 million. It might be a million over 30 years. 30 years is a long time. Q. It is a long time. A million and a half? A. I don't think so, but maybe. It could be. Q. Okay. Never Yooked at it. Let's talk a little bit about the threshoid limit values. That was something you put up on the board behind you, right? And the threshold limit values were determined by the ACGIH, correct? A. Yes. Q. And that's the American Conference of Governmental and Industrial Hygienists, correct? A. Yes. Q. And that is a group of both government industrial hygienists, is that correct, as well as industry industrial hygienist? A. No. Q. Just government? Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oa no BF ww N 5755 A, Government and anyone who doesn't work for industry. As I mentioned yesterday, I am a member of ACGIH because I work for the university, but if I worked for Ford I couldn't be a member of ACGIH. Q. Those people are excluded. So it's really the government. And the 5 million particles per cubic foot, that, you said, came in in 1948, correct? A. Yes. Q. And that was based on a study that was done in 1938 by Mereweather; is that correct? A. No, it's mostly based on the Dressen and Dellavale study of U.S. textile. Q. Excuse me. I misspoke. I meant Dressen in 1938, correct? A. Yes. Q. And in the Dressen study they said -- and that was a textile manufacturing where there were high levels of pure asbestos dust in the environment, correct? A. No, there were high levels of dust containing asbestos, but the dust wasn't pure asbestos. Q. Did they have pure asbestos then? A. But the dust wasn't pure asbestos. It depended Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oo 0 ON RW Oo BRB Ww HY = se wo Nn = 14 15 16 17 18 19 20 24 22 23 24 25 5756 on the part of the process. But, as I recall, the Dressen study it varied from 10 to 20 percent of the dust was asbestos. Q@. Okay. And the thought there was that if you kept the level below the 5 million particles per cubic foot you wouldn't see disease, correct? A. They measured the exposures. They had some ventilation at those plants, and they looked for asbestosis among the workers, and they concluded that if the levels were held below that 5-million-particles-per-cubic-foot level it's not likely that workers would develop asbestosis, that's correct. Q. Okay. And then let's just go forward really quickly. You said in 1968 the ACGIH reduced the level to 12 fibers per cubic centimeter, correct? A. I think they just proposed it at 12. I don't think it was ever adopted. Q. And you mentioned a Mr. Cralley. Who is Mr. Cralley? A. I don't know if I mentioned him or not, but he was another editor of the Patty's Industrial Hygiene after Patty -- Q. Was he part of the American Conference of Governmental Industrial Hygienists? Aiken-Welch Scott vs. Allied Packing, et al. 9/25/125770 Cralley, we've got Langer, we've got Selikoff, correct? A. Yes. Q. And others looking at the disease pneumoconiosis, which is short for lung disease, correct? A. Lung disease caused by dust, yes. Q. Got it. By the way, are you familiar with -- let me just ask you this, if you turn in your book to, it looks like page 37, “Dust Problems in the Use of Asbestos" by Ernest Walther (phonetic), former member of the Research Advisory Committee Engineering, Asbestosis Research Project of the Pneumoconiosis Research Unit, Council for Scientific Research. Are you familiar with that article? A. Yes. Q. Okay. And do you view that as authoritative? A. Well, it was presenting -- I'd say the discussion of the problems -- yeah, it was focused on, as I recall, mining of asbestos, and so it was, I think -- yes, it was authoritative for that, yes. Q. Okay. And so let me have you turn to page 39. Do you have page 39 there? A. Yes. Q. And on page 39 he's talking about the product Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12Oo Oo nN DO OO BP WD Ne = mM NM NM NY | |= & BoB a ew Ba Bn nm Bw nN = 59 © OD NN O29 GF B Ww rH & BD Nh a 5771 brake linings, correct? A. Yes. Q@. Okay. 4-2? A. Yes. Q. Okay. Could you read that for us. MR. SATTERLEY: Your Honor, I don't think there's proper foundation laid this is authoritative. THE COURT: A couple more foundational questions, Counsel. BY MR. LOPEZ: Q. Mr. Walther, he published -- first of all, this was a paper presented at the preceding of the pneumoconiosis proceeding in Johannesburg in 19697 A. Yes. Q. So he's making a presentation to all these world-renowned experts on asbestos: is that correct? A. That's correct. Q. And this was a paper that he presented on dust problems in the use of asbestos products, correct? A. Yes. Q. Okay. And there he's identifying various products and any dust problems associated with those products, correct? A. Yes. Q. And in terms of the historical industrial Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12o Of NN OD Oo FB Ww NY = RB NR NB MR ND Rm a sas a sa nO fF Ww NH += OF G6 FN D FH FF WO HY *~ DB 5772 | hygiene, this would be considered authoritative, correct? A. Yes. Q. Okay. Could you please read section 4-2 on brake linings. A. “It has been suggested that the braking of countless vehicles fitted with brake linings containing a large percentage of asbestos fiber,” parentheses, "30 to 50 percent, mostly chrysotile in combination with resins, polymers, oxides, pigments, metals, carbon black and graphite, would produce hazardous dust.” Q. Okay. And then do you want to go ahead and read section 4.2.1, which is the next paragraph. A. “Investigators have found no substance in these allegations. Their theory of what happens to the asbestos in brake linings is explained by J.R. Lynch that --" Q. Why don't you stop right there. J.R. Lynch, who is J.R. Lynch? A. He's an industrial hygienist. Q, Worked for the government? A Did then, yes. Q. In 1968 -- his name is Jeremiah Lynch: is that correct? A. Yes. Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oc 0D ODN DW Oo FF Ww NH = YY NY NM MY HY HY B@B we we mw Be Be ew ew oe a BF Oo NHN = SG © ON OD OH F OW NY = 5773 Q@. So right here in 1968 Jeremiah Lynch does a study of asbestos brake dust, correct? A. Yes. Q. Okay. Go ahead and read what was presented in this paper at Johannesburg, South Africa, in 1969. A. So according to Lynch, “Wear occurs not by abrasion of the lining by the drum but by the production of minute areas of intense heat at the point of contact between drum and lining. Decomposition not only of the binder but also of the asbestos occurs at these locations as the breakdown temperature of chrysotile asbestos is about 900 degrees Fahrenheit is exceeded. The decomposition of products will thus include no free asbestos fibers but a different mineral resulting from the thermo-metamorphosis of the asbestos.” Q. Okay. And then Mr. Walther in this presentation at the conference, he goes on to say in the next paragraph, and basically he's just quoting the Lynch article, and in quoting the Lynch article, at the conclusion of the Lynch article it is that because of the -- let me just find the quote. "Thus, although urban air contains a few free fibers as a result of brake lining wear, they represent a very small proportion of the total asbestos used in Aiken-Welch Scott vs. Allied Packing, et al. 9/25/125774 the manufacture of brakes and many sources of respirable fibers not associated with asbestos products have been identified to be present in urban air and the free fibers from the brake linings appear to be an inconsequential health factor for urban air pollution,” correct, that's what Mr. Walther reported about the Lynch study at the conference on pneumoconiosis, correct? A. Correct. Q. Now, they actually have discussions about what's been presented during the presentation of the papers, correct, if you turn to page 51? You see that? A. Yes. Q@. And there's a discussion that's occurred. And so this typically happens at conferences, right, so there's a presentation of the papers and then the preeminent experts that are listening will have a panel discussion, correct? A. Yes. Q. And one of the preeminent experts that was chairing actually this series of papers that was given was Dr. Selikoff, correct? A. Yes. Q. And it's true that Dr. Selikoff reported at the Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12wot S775 conference that brake linings do not constitute a hazard, correct? A. He's quoted here in the discussion as saying that, yes. Q Okay. And actually right before that there's other discussion by Dr. Smither and Dr. Cralley who we have also discussed, right? A. Yes, Q. And what they are discussing is a study by Hickish and Knight in 19 -- what is it -- 68, correct? A. Yes. Q. And you are familiar with the Hickish and Knight study? A. Yes. Q. And Hickish and Knight did a study, and that was Ford UK, correct? A. Yes. Q. So it preceded this, the pneumoconiosis conference, correct? A. Yes. Q. And in 1968 Hickish and Knight, looking at a dealership where a mechanic performed 11 brake changes on 11 different cars, correct? A, Something like that, yes. Q. It was 11. Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12ae 5776 They found that the time-weighted average exposure was .68 fibers per cc over those 11 brake jobs that were done that day, correct? A. Yes. Q. And that was the time-weighted average. So what we're talking about, that's not a peak, that's the average throughout the day doing 11 brake jobs straight, correct? A. Yes. Q. And essentially at the pneumoconiosis conference they are reporting on that, right, the Hickish and Knight paper -- A. Q. Yes. -- in this discussion and concluding -- MR. SATTERLEY: Your Honor, I would object to the discussion as hearsay. There's no foundation that a discussion is authoritative. It's not the same as a paper. THE COURT: The objection is overruled. You can do redirect on that. MR. SATTERLEY: Yes, Your Honor. BY MR. LOPEZ: Q. So in terms of following the paper by Dr. Cralley, by Dr. Walther on products specifically looking at brake linings in 1969, the panelists report Aiken-Welch Scott vs. Allied Packing, et al. 9/25/124 co 0 ON OW HH FF WN = S777 that brake linings don't appear to be a health problem, correct? A. I think Dr. Selikoff changed his mind shortly thereafter when his team did their studies in the 1970s, Q. Fair enough. You are talking about 1975, '76, right? A. Yes. Q, Okay. Let's just get the timeline right. We're at ‘69 right now. Now, let's just go back to the OSHA for a minute because OSHA comes in, we said 1970, takes affect in 1971 at 12 and they reduce it to five, those are the TWA's, correct? A. Yes. Q. And then you discussed how the OSHA PEL's are slightly different than the TLV's because the TLV's were threshold. We thought you wouldn't get any disease, correct? A. Yes. Q. And you said, well, the OSHA PEL's, you know, we're protective, but we're not eliminating all risk; is that right? A. Yes. Q. In fact, when OSHA sets the PEL’s, what they do | Aiken-Wetch Scott vs. Allied Packing, et al. 9/25/125778 is they base it on what's called a linear no threshold model. Are you familiar with that? A. Yes. Q. And the concept is that we take data from high occupationally exposed cohorts where we see disease and we extrapolate it down to very, very low exposures, correct? A. Yes. Q. And so the linear no threshold model suggests -- which is a model -- by the way, it's a model, correct? A. Yes. Q. So the idea is they don't have actual data down at very, very low exposures, but we will extrapolate from high data to very low data, and for regulatory purposes we're going to assume it could cause disease, correct? A. And they concluded that, as I said yesterday, at the current PEL there's a residual risk of developing mesothelioma based on that model. Q. Based on an extrapolated model, correct? A. Yes. Q. Okay. Now, the OSHA PEL's that you put up there, they apply to all employers. I think you said Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oo OD ND OD F YN NM NM NM MY BM ND weak a £ O© Nb &= OC © @ N BW OD BR WO) NR ww 5779 that, correct? A. Yes. Q. And that would be all employers including service stations, correct? A. Yes. Q. And it was the employers' obligation to know about the PEL's and to follow the PEL's, correct? A. If he was in violation of them he could be cited for that, yes. Every employer has the responsibility to provide a safe workplace for the employees, and that includes meeting the PEL's, yes. Q. Okay. And is that another way of saying that there are legally binding limits placed on employers, correct? MR. SATTERLEY: Objection, Your Honor. Calls for speculation. THE COURT: Sustained only to the extent we're talking about industrial hygienists. BY MR. LOPEZ: Q. Okay. And that it was the employer's obligation, as you've defined it for us, that was from the inception of OSHA, correct? A. Yes. Q. Okay. And if the employer was exceeding the Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oO © 6 N DOD OHO FF YW NH = oN OD HF BF WO HD 18 20 2 22 23 24 25 5780 PEL‘s, he had the obligation to reduce the dust, correct? A. Yes. Q. And post warnings and do other things, correct? A. Yes. Q. In fact, OSHA even governs not only things like asbestos, but they govern things like, you know, air compressors and the pressure that could be used out of an air compressor, correct? A. For blowing, yes. Q. Sure. A. Yes. Q. In fact, it's 15 pounds per square inch, correct? A. That is -- I'm not safety, but I think that sounds about right. They restrict the pressure that could be used in an air gun, that's right, for blowing dust around. Q. So this idea of blowing out, there was actually an OSHA limit that was placed on service stations and others who use compressed air and how much compressed air, because, as you defined it, it was kinetic energy, not only could it be asbestos dust, but there could be particles and other particulates, correct? MR. SATTERLEY: Objection. Foundation. Beyond Aiken-Welch Scott vs. Allied Packing, et al. 9/25/125781 the scope of his expertise, THE COURT: I think it was foundation, but I'1] sustain it to the foundation. You can ask foundational questions about the use of the air compressor expressed by Dr. Hammer. BY MR. LOPEZ: Q. Well, let me put it this way, Doctor, you wou agree that the use of air compressors in commercial facilities, garages and so forth is regulated by OSHA, correct? A. Yes. Q. And it's regulated in terms of the amount of pressure that could be used in air compressors for blowing things around, correct? A. Yes, Q. And whether it's -- you think it's probably 15 pounds, correct? A. Sounds about right, yes. Q. Okay. And it's the employer's responsibility to make sure that they are not using excessive pressure, correct? A. Yes. Q. Okay. Now, one of the things that's available to employers are the PEL's, correct? A. If they know about them, yes. Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12coco M8 NN OO GD RB YW DN ~ oe poo — wo 15 16 17 18 19 20 24 22 23 24 25 5782 Q. Well, they are available to them, correct, al? employers? A. Yes. Q. Okay. Another thing you talked about is the Current Intelligence Bulletin. You recall that? A. Yes. Q. And that came in 1975, I think you talked about Rohl, right, and Lorimer? A. Right. ‘ Q. And that Current Intelligence Bulletin actually was the result of the publication by Rohl and Lorimer of the paper. And, first of all, the Current Intelligence Bulletin that you discussed, that was something that was issued by NIOSH, correct? A. Yes. Q. NIOSH is the scientific research arm of OSHA, correct? A. They are independent of OSHA, but they do research. Q. They do the research, okay. And the Current Intelligence Bulletin, in fact, what it did is said, based upon the Rohl and Lorimer study that came out of Mt. Sinai and the Selikoff Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12co 0 ON OD HW B Ww YD = = 5792 And when we say the “background,” that means it's in the air 24 hours a day, correct, it's just there? A. That's correct. Q. Okay. Now, let's turn to the asbestos content in brake wear debris. Now, you, yourself have never done any examination of any brake or dust clutch (sic) that collects to determine what the asbestos dust content is, correct? A. Correct. Q. Now, hat studies have Okay. you would agree actually looked at that and analyzed the residual asbestos content in brake or clutch dust, correct? A. Yes. Q. And the reason it's residual is because, as Jeremiah Lynch found in 1968, braking transmits significant kinetic energy through the braking system, there's significant heat and shearing that goes on with the friction lining, correct? A. Yes. Q. And, in fact, the idea is for the friction lining to be sacrificed. So, the motion is converted into heat that is centered at the face of the friction lining, right? Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12o Oo Oo N DO oO 8B Ww He ss = 12 13 14 15 16 17 18 19 20 24 22 23 24 25 5793 A. Yes. Q. That’s how it works, correct, that's what the friction is, we're generating heat, high heat, correct? A. Yes. Q. And that’s why in 1968 when Jeremiah Lynch first looked at that they found, in fact, that there were insignificant residual asbestos fibers in the brake wear debris? A. There were several studies, and it found in the few percent of the total dust is still asbestos fibers. It's not zero. It's -- that's why there's still exposure when you blow out that debris. If it was zero there would be -- it wouldn't be 35 per cubic centimeter, it would be zero. Q. Well, first of all, most studies have found that it's less than one percent. You would agree with that, correct? A, Others have found -- I think Lorimer said five percent. Q. Let me ask you this -- you are a professor You teach classes -- have you ever heard of the idea that -- called cherry picking data, have you ever heard of that? A, Sure. Q. What is cherry picking data? Aiken-Welch Scott vs. Allied Packing, et al. 9/25/125794 A. Picking only the data you want to make your point. Q. Okay. So, if we looked at Lorimer that's going to make your point, isn't it, it's going to be higher than one percent, right? A. That's different than cherry picking. If you have one study that shows it could be 10 percent, that means it isn't always less than one percent. Q. Let's take a look at Lynch, 1968, found less than one percent, correct? A. Yes. Q@. U.S. Public Health Service, correct? A. So, I think I said yesterday, maybe I didn't, it's lucky that most of it is not asbestos or the exposure would be even higher. It's the residual asbestos that we're worried about. Q. If you could answer my question, we could go a little faster. Hickish and Knight, 1970, found less than one percent, correct? A. Sure. GQ. Published in the peer-review literature, correct? A. Sure. Q. So was Lynch, 1968, correct? Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12Oo © © N OD HF PF WY DN N 2 OM BB OW MY = 5795 Yes. Q. Anderson in 1973, Anderson who worked for Ford Motor Company, performed very precise tests on what are called dynamometers to analyze the residual brake dust, correct? A. Yes. Q. And did you look at that study? A. Yeah, it's -- he -- MR, SATTERLEY: Your Honor -- THE WITNESS: -- he presents the results in mass terms. It's harder to compare to other studies. BY MR. LOPEZ: Q. Well, he states that it's less than .02 percent in the brake lining debris in the dynamometer tests that he conducted, correct? A. I don’t remember that number. Q. You want to check? A. No. If you say it is, that's what it was. Q. You would agree with that. Jacko and DuCharme, Jacko and DuCharme, Bendix under contract with the EPA looked at it in 1973, correct? A. Something like that. Q. And Jacko and DuCharme found that the average asbestos content in brake wear debris is less than .23 Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12percent, correct? A. Something like that. 5796 Q. Okay. Williams and Muhibaier, are you familiar with Williams and Muhlbaier? That was from actually GM that looked at this. A. NO, I don’t remember that. Q. You never looked at Williams and Muhlbaier, published study? A. I don't recall. Q. sure if you've seen it or not. See how my system is here. Here it jis. This has been marked as Defendant's Exhibit the Let me take a look just in case. We'll make 22054, and I think -- is that a correct number? It's okay, and we'll give it an A because it has... So, for the record, 22054-A entitled "Asbestos Brake Emissions, Environmental Research," 1982, Ronald Williams and Gene Muhlibaier -- I'm sure I've butchered that name -- M-U-H-L-B-A-I-E-R -- from the General Motors research laboratories. (Defendant's Exhibit No. 22054-A Marked for Identification.) BY MR. LOPEZ: Q. Let me hand you this. I'm sorry. Aiken-Welch Scott vs. Allied Packing, et al. 9/25/122 Oo 6 NN OD oO RF OW NM = RO mmm coc Cc ON OD GO FB YN 24 22 23 24 25 5797 Take a look, just see if you've ever looked at that when you were preparing for your opinions to give in this case? A. Yes, I have seen this. Q. Okay. And you'd agree that they found debris of point -- asbestos fibers in brake wear debris of .029 percent, correct? A. Yes. Q. Okay. Chaw (phonetic), 1983, are you familiar with Chaw, 1983? A. I think so. Q. And Chaw, again, they found -- and, by the way, Chaw, it was Chaw and Braden, this was for the EPA, so this was the EPA-conducted study in 1983, it was published by the Society of Automotive Engineers, correct? A. Yes. Q. And Chaw found only .018 percent asbestos in brake wear debris, right? A. Something like that. Qa. Okay. And, in fact, they reported their results agreed well with those of Williams and Muhtbaier who we just looked at, correct? A. Yes. Aiken-Welch Scott vs. Allied Packing, et al. 9/25/125798 Q. And then Chehie (phonetic) in 1989, are you familiar with Chehie 19897 A. Yes, Q. Chehie in 1989 was a NIOSH study. So that's the research arm of NIOSH we've been talking about, correct? A. Yes. Q. And they report that asbestos fibers was less than one percent, correct? A. Yes. Q. Okay. So let me just see, we have two EPA studies, Jacko '73, Chaw ‘83, the U.S. Public Health Service and Lynch in 1968 and the NIOSH study in 1989, all reporting brake dust -- asbestos in brake dust at less than one percent, in many cases far, far less than one percent, correct? Yes. Q. And what you wanted -- what you chose to report to us was a high number that Rohl and Lorimer found in 1976, correct? A. That‘s another study out there. Q. It's cherry picking, isn't it? A. No, it shows the range. That was a well conducted study, in my opinion. Q. Okay. Fair enough. Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oO oC ODN OW GF RB WOW ND wo NM + 14 15 17 18 19 20 21 22 23 24 26 5805 A. I'd have to look at the article. Q. You don't know. Okay. But let's turn to -- let's turn to the literature. We talked about Hickish and Knight. NIOSH did a whole series of studies. In fact, NIOSH, 1976, you told us the Current Intelligence Bulletin -- was it ‘76 or '75? A. ‘75. Q. Excuse me. 1975, the Current Intelligence Bulletin out of NIOSH says there's a potential health hazard. One of the results of NIOSH's Current Intelligence Bulletin, not only sending that out to all operators, was that they said, "We want to look at the industrial hygiene of this,” correct? A. Yes, Q. So NIOSH did a whole series of studies looking at what brake servicing -- what the industrial hygiene was associated with servicing brakes, right? A. Yes. Q. And if you look through that -- have you looked at that data? A. Some of their health hazard evaluations, yes. Q. And that data actually, if you look at it, confirms that on a time-weighted average -- so what they did is they went into a whole series -- this is Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oOo fom NO Oo RB WD asia a on DO OHO FF Ob NS 19 20 21 22 23 24 25 5806 NIOSH. This is the United States government, correct? A. Yes. Q. They go into a whole series of garages around the country and they take industrial hygiene measurements, right? A. Yes. Q. You chose not to report to the jury on that, didn't you? A, There was a lot of literature out there. Q. Okay. Fair enough. What they found, and that was after 1975, what they found was that, in fact, when we looked at all the data it was, in general, less than the PEL, what you've put up there on the board, correct? The time-weighted average for brake mechanics servicing brakes in these facilities was less than the PEL, correct? A. And still for a carcinogen, in my opinion, significant exposures from these operations. Q. And the PEL -- and we‘re talking about the current PEL of .1, correct? A. I don't know that they all were tess than the current PEL. I don't recall that. Q. Okay. But on that order of magnitude, correct? A, They are time-weighted average. We can get low levels, right, if you don't do a jot of brake jobs. Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12oO TF FB WN REPORTER'S CERTIFICATE I, KIMBERLY L. AVERY, a Shorthand Reporter, State of California, do hereby certify: That said proceedings were taken before me at said time and place, and was taken down in shorthand by me, a Certified Shorthand Reporter of the State of California, and was thereafter transcribed into typewriting, and that the foregoing transcript constitutes a full, true and correct report of said proceedings that took place; IN WITNESS WHEREOF, I have hereunder subscribed my hand this 9th of April 2013. KIMBERLY L. AVERY, CSR No. 5074 State of California Aiken-Welch Scott vs. Allied Packing, et al. 9/25/12EXHIBIT F24 25 CALIFORNIA COURT OF APPEAL FIRST APPELLATE DISTRICT ae 00077 PATRICK SCOTT and SHARON SCOTT, NO. A- Plaintiffs/Appellants, ALAMEDA COUNTY vs. NO. RG1L2~-613671 ALLIED PACKING & SUPPLY, et al., Defendants/Respondents and Cross-Appellants. REPORTER'S TRANSCRIPT ON APPEAL FROM FINAL JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA HONORABLE GEORGE C. HERNANDEZ, JR., JUDGE me 0006 = WEDNESDAY, SEPTEMBER 26, 2012 FOR THE PLAINTIFFS/APPELLANTS: KAZAN, McCLAIN, LYONS, GREENWOOD & HARLEY, PLC BY: MICHAEL T. STEWART, Attorney at Law FOR DEFENDANT/ RESPONDENT /CROSS~APPELLANT: NIXON, PEABODY, LLP BY: RONALD F. LOPEZ, Attorney at Law ROSS M. PETTY, Attorney at Law REPORTED BY: CAROL HARABURDA VOLUME: 21 RPR, CSR NO. 8052 PAGES: 6001-6300SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA HAYWARD HALL OF JUSTICE 24405 AMADOR STREET, HAYWARD, CALIFORNIA BEFORE THE HONORABLE GEORGE C. HERNANDEZ, JR., JUDGE DEPARTMENT NO. 514 —--000-—— PATRICK SCOTT and SHARON SCOTT, Plaintiffs, vs. CASE NO. RG12-613671 ALLIED PACKING & SUPPLY, et al., Defendants. REPORTER'S TRANSCRIPT OF PROCEEDINGS WEDNESDAY, SEPTEMBER 26, 2012 ~~~ 000--- Taken Before CAROL HARABURDA RPR, CSR NO, B052 AIKEN WELCH COURT REPORTERS One Kaiser Plaza, Suite 505 Oakland, California 94612 (510) 451-1580/(877) 451-1580 www.aikenwelch.com6107 asbestos, correct? A. As a general principle I think the lower the exposure the more effective our defense mechanisms are. Q. And the body has defense mechanisms to deal with dust, including asbestos, correct? A. That's correct. Q. Now, with respect to Mr. Scott, you have not attempted to provide us any risk estimate of what his risk was that could be associated or attributed to work on motor vehicles, correct? A, Correct, I can't do that. Q. Okay. So there is no quantitative estimate that you've provided, correct? A. I cannot provide a quantitative estimate for that exposure or any other exposure that he had. Q. Okay. Let's talk a little bit about -~ let's talk a little bit about state of the art. I don't think you said in your deposition about state of the art. Do you know what state of the art is? A, Yes. Q. And you gave a little state-of-the-art testimony here this morning? A. Correct. A wee bit. Q. Okay. And the wee bit was you were kind of giving some of the scientific and medical history with Aiken-Welch Scott vs. Allied Packing 9/26/126108 respect to asbestos-related disease, correct? A. Correct. QO. And what you said, as I understood, is if we go back to the 1930s, asbestosis was recognized as a disease and you related to that to the Merewether studies? A. Actually, there's more, but I pointed out Merewether. There's many more studies than that. Q. Sure. And in that study in the 1930s the thought was asbestosis, which you explained this morning was the scarring of the lungs, the reaction, correct? A. Yes. Q. The thought in the 1930s, that if you could keep the dust levels low, below five million particles per cubic foot, they wouldn't see evidence of asbestosis? A. Merewether didn't mention that, but that was -- in 1937 from another study done in the United States there was a@ suggestion, at least it was considered a tentative threshold was five million particles per cubic foot, which was actually adopted. Q- Okay. And so moving forward, that was Dresden, through the United States Public Health Service, that said -~ they re-did the Merewether study and said, keep the dust below five million particles, or at least the recommended threshold was five million particles per cubic foot for eliminating asbestosis, correct? Aiken-Welch Scott vs. Allied Packing 9/26/126109 co A. Right. They didn't re-do the Merewether. They did their own study. Q. Right. A. Somewhat similar to what Merewether did. Q. They both looked at textile factories, correct? And Merewether did it in Great Britain, Dresden from the United States Public Health Service in the U.$., correct? A. Right, in North Carolina. Q. So one of the things you talked about was latency and this concept of latency. When you were referring to latency in the 1930s and the Merewether knew about latency, the latency they were talking about was latency with respect to asbestosis, correct? A. Correct, Q. Okay. And then if yo t~ think you indicated 1960 is when there was a recognition in the scientific literature that mesothelioma can be causally related to exposure to a form of asbestos, correct? A. Right. QO. And that was the Wagner study in 1960, is that correct that you were referring to? A. Correct. That's correct. Q. Dr. Wagner was a researcher in South Africa, correct? Aiken-Welch Scott vs. Allied Packing 9/26/1224 25 6110 A. He was a pathologist in South Africa. Q. And South Africa is where they mine crocidolite asbestos, correct? A. Correct. Q. And he was looking at individuals in cases which had high exposures to crocidolite asbestos, correct? A. Well, some of the men, high exposure to asbestos, crocidolite asbestos. Some were paraoccupational exposure te crocidolite. That is the significant other of people who are exposed to crocidolite, and some had other exposures which were not characterized exactly what they were. The people who were exposed to asbestos in industry, and it isn't clarified in the article what their exposure was. Q. Okay. So in 1360 we have this relationship between mesothelioma and exposure to crocidolite, correct? A. Well, we have a relationship exposure to asbestos-causing mesothelioma of which a significant portion were crocidolite, but it was evident that the world concluded that this was not just an issue of crocidolite, because in response to that study, studies were done in New York City, studies were done in Liverpool, England, studies were done in Belfast, studies Aiken-Welch Scott vs. Allied Packing 9/26/126111 were done in Germany, and these were not people exposed to crocidolite. That is, the general principle had been applied, that is exposure to asbestos causes mesothelioma. 24 29 Q. Tt sounds like what you're saying is the researchers were interested to see if mesothelioma was associated with other forms of asbestos following 1969? A. Right. So the general the conclusion was right om -7 Q. Let me just go with question and answer, please. THE COURT: Let him finish. I think the question was answered. You may ask another question. BY MR. LOPEZ: Q. I think you mentioned Dr. Selikoff, do you recall? A. T did. Qo. You mentioned Dr. Churg, right? A. Jacob Churg. Q. Jacob Churg. A. The father of Andrew Churg. a. And who's Andrew Churg? A. He's a pathologist in British Columbia. Q. And an expert in asbestos-related disease? A. Yes. Q. On the United States Canadian Mesothelioma Panel Aiken-Walch Scott vs. Allied Packing 9/26/126112 1 that looks at cases of mesothelioma worldwide? 2 A. Correct. 3 Q. Okay. But his father also worked with Dr. 4 Selikoff at Mt. Sinai, correct? 5 A. Right. Also a pathologist expert in pathology in 6 asbestos-related disease. 7 Q. It ran in the family there. 8 A. It definitely ran in the family. 3 QO. And in 1964 you mentioned this, there was a 10 publication of the New York Academy of Sciences where Dr. 1L Selikoff£ presented information on mesothelioma, correct? 12 A, He did and others did. 13 Qo. And others. [It was a large meeting? 14 A. Right. Right. 15 Oo. What they did is they followed insulators, 16 correct? 17 A. Tow 18 Q. Strike that -- 13 A. Selikoff did, that's correct. 20 Qo. Let me rephrase the question just so we get a 2i elear record -- or question. 22 The research that Dr. Selikoff presented was 23 research that Dr. Selikoff and his group did on over 24 17,000 insulators that were members of a union and looking 25 for asbestos disease in that group? Aiken-Welch Scott vs. Allied Packing 9/26/126113 A. No, Qo. Ch, how many were there? A. What he did is the study, which he reported in '€4 ~- and published in '64 and '65 was of the New York-New Jersey local which had 600~plus workers. Q. Okay. And then he followed more insulators after that, but he started with 600, correct? A. 609 plus. Q. Okay. And these were men who were insulators and they worked commercially with insulation, correct? A. Right, this was their career. Q. Right. And that was -- it wasn't just shipyards, it was through all industrial facilities, correct? A. Correct. Q. And, in fact, the type of exposure they had was mixed exposure to both crocidolite and amosite, right? A. Well, eventually those that were older were originally exposed only to chrysotile. Q. Okay. And that was in 1964, the first results were presented of this study, is that correct? A. Correct. Q. And that was really the first study of insulators, correct? A large cohort of insulators? A. Right. There had been a study earlier in 1946 of Aiken-Welch Scott vs. Allied Packing 9/26/126114 Fleischer-Drinker of some shipyard workers, correct? A. Correct. Q. They were also insulators, correct? A. Correct. Q. Tn 1946 they were only looking at asbestosis, and the conclusion there was that if you kept the dust low you wouldn't see any incidents of asbestosis, correct? A. Correct. Q. The flaw in that study, that's kind of pointed out from time to time, including by Dr. Selikoff, is they really didn't look at latency, what you were taking about? A. Right. They -- even though latency was well-established and had been established at least 16 years before they published their work, they ignored latency period. a. So -- and these guys were well respected. Right. That was Fleischer -- It can't relfember how it goes. One was at Harvard and was an assistant surgeon general, right? A. Brinker was an industrial hygienist from Harvard and Fleischer was the assistant surgeon general. He was at least an officer in the military. I'm not sure what else he did. Q. Anyway, that brings us up roughly to the 19 -- Aiken-Welch Scott vs. Allied Packing 9/26/1212 13 14 REPORTER'S CERTIFICATE ~~-000--- I, CAROL HARABURDA, do hereby certify that I am a certified shorthand reporter of the State of California and duly appointed shorthand reporter. That the foregoing pages are a full, true, and correct transcript of my shorthand notes taken in the above-mentioned matter. IN WITNESS WHEREOF, I have hereunto subscribed my name this 2nd day of APRIL 2013. f * wl Ww tn bvtintiad te. Mann CAROL HARABURDA, RPR, CSR NO. 8052 Certified Shorthand Reporter Court Certified Realtime Reporter State of California Aiken-Welch Scott vs. Allied Packing 9/26/12