Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                05/02/2013 08:58 FAX 5104513797 AIKEN & WELCH @oo4
-05/02/2018 6:43:53 AM -O700 FAXCOM PAGE 4 OF 5

ELECTRONICALLY

1] ALAN R. BRAYTON, ESQ., 8.B. #73685 FILED
DAVID R. DONADIO, ESQ., S.B. #154436 Superior Court of Catford
7 | BStitey 9 BENSON ESO, 8b. #276326 nn ot Ban cece
3) BRAYTONSPORCELL LE . MAY 02 2013
Attomeys at Law Clerk of the Court
41) 222 Rush Landing Road BY: EDNALEEN JAVIER
P.O. Box 6169 Deputy Clq
5 || Novato, California 94948-6169
(415) 898-1555
61} Tentative Ruling Contes! Email: gontestasbestosTR@braytonlaw.com
711 Atormeys for Plaintiffs
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO By Fr
10 4y
11 |} ROBERT ROSS and JEAN ROSS, ASBESTOS
No. CGC-10-275731
12 Plaintiffs,
& g DECLARATION OF ASHLEY F. BENSON
Bia? 13}. ve. IN SUPPORT OF PLAINTIFFS' NOTICE
3 g € ¢& OF ERRATA RE: OPPOSITION TO
Boge<% 149 C.C. MOORE & CO. ENGINEERS; DEFENDANT CRITCHFIELD
gop i 3 Defendants as Reflected on Exhibit 1 MECHANICAL, INC.’§ MOTION FOR
Sass —= 15] attached to the Summary Complaint herein; SUMMARY JUDGMENT OR, IN THE
5 g £6e and DOES 1-8500. ALTERNATIVE, SUMMARY
Ere ¢ 16 ADJUDICATION
Ros
eon

Date: May 9, 2013

18 Time: 9:30 am.
Dept: 503, Hon. Teri L. Jackson
19 Trial Date: June 10.2013
Action Filed: December 17, 2010
20
21 I, Ashley J. Benson, declare as follows:
22 ‘1. Taman attomey at law duly licensed to practice before all courts in the State of

23 1 Califomia and am an associate with the law firm of Brayton?+-Purcell LLP, attomeys of record

24 || for plaintiffs herein and as such am fully familiar with the facts of this case and if called asa
25 || wimess regarding the matters set forth below, I would so testify. ,

26 2, Plaintiffs’ opposition to defendant, CRITCHFIELD MECHANICAL, INC.’s Motion
27} for Summary Judgement (“Opposition”) was electronically served and filed with the Court on

284 April 25, 2013. The declaration of Ashley J. Benson of which Dr. Cohen’s declaration was

Idlojued orsvip aa eget
DECLARATION OF ASHLEY. SIN SUPROK at KFS’ NOTICE OF ERKATA RE: ORPOSTTOR Ty SEEN
OEE MRCHANICAL, Ree SonioN FOR SGRIMARY JUDCMERT ‘Ol, IN THE ALTERNATIVE, SUMMARY

.

° 05/02/2013 9:10AM (GMT-07:00)i og: 58 FAX 5164513797 AIKEN & WELCH . gos
1:43:53 AM -O700 FAXCOM PAGE 5 OF 5

intended to be included as Exhibit 2, was algo electronically served and filed with the Court on
April 25, 2013.

3. Due to a clerical oversight caused by plaintiffs’ counsel having to file 25 oppositions
to motions for summary judgement all on the same day, Dr. Cohen’s declaration was
accidentally amitted from the Opposition.

4. On May 1, 2013, m an attempt to cure the omitted declaration and ensure defendant

was in no way prejudiced, plaintiffs supplied defendant's counsel with courtesy copies of this

declaration immediately after discovering the omission.
3. On May 1, 2013, in a conversation between Ashley J. Benson and. George S.

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Sullivan, plaintiffs’ offered. 10 stipulate to continue the hearing and defendant’s reply due date

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so as to allow them sufficient time to respond. Defendant declined this offer.

12 6. A tue and correct copy of Dr. Cohen’s deolaration is attached hereto as Exhibit A.

13 || This declaration shall be inserted as the first pages of Exhibit 2 of the declaration of Ashley J.
14 || Benson filed with plaintiffs’ Opposition on April 25, 2013. All other supporting documentation
15 || and exhibits filed with the original Opposition shall remain the same.

16 I declare under penalty of perjury under the laws of the State of California that the
17 |} foregoing is true and correc},

_ 18 Executed on at Novato, California.

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26

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coh ie at Ms bed ASS.
CRIGHEEUD U MaCAAMCAL Re 3 Mk NON FOR TOR SMUT GR IN Hi ALTERNATIVE, MMAR CASE

05/02/2013 9:10AM (GMT-07:00)EXHIBIT ABRAYTONS PURCELL LLP

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C.C. MOORE & CO. ENGINEERS;

ALAN R. BRAYTON, ESQ., S.B. #73685
DAVID R. DONADIO, ESQ., S.B. #154436
OREN P. NOAH, ESQ., S.B. #136310
ASHLEY J. BENSON, EsQ. ., S.B. #276326
BRAYTONSPURCELL LLP

Attomeys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169

(415) 898-1555

Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com

Attorneys for Plaintiffs ,
, SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ASBESTOS BY Pay

No. CGC-10- 275731

ROBERT ROSS and JEAN ROSS, }
| o DECLARATION OF RICHARD COHEN,

. Plaintiffs,

M.D., M.P.H., IN SUPPORT OF
PLAINTIFFS? OPPOSITION TO
DEFENDANT CRITCHFIELD ._-
MECHANICAL, INC.’S MOTION FOR
SUMMARY. JUDGMENT. OR, IN THE. -
ALTERNATIVE, SUMMARY .
ADJUDICATION . :

v8.

Defendants as Reflected on Exhibit 1
attached-to the Summary Complaint herein,
and DOES 1-8500.

Date: May 9, 2013

Time: 9:30 a.m.

Dept: 503, Hon. Teri L. Jackson

Trial Date: June 10,2013 .

Action Filed: December 17, 2010
.L, Richard Cohen, M.D., M.P.H., declare:

1. Lam a licensed physician and am currently a Clinical Professor in the Division of
Occupational and Environmental Medicine in the Department of Internal Medicine at the
University of California San Francisco Schoo! of Medicine. Occupational medicine addresses’ ©
the diagnosis, the treatment and prevention of health problems that result from work. A
majority of my work in occupational medicine deals with toxicology ~ how various hazardous

materials can affect people who work with them. I work with companies primarily to help them

not only identify those hazards, but also to try to protect the workers from having any health

Seer ae 2-CRIMEC wo 1 : ANB
ECLARATION OF RICHARD COHEN, M.D, MP-H.IN SUPPORT OF PLAINTIFI”S OPPOSITION TO DEFENDANT CRITCHFIELD
RECHAMCAD INC'S MONON POR SUMMARY JUDCMENT OR, IN THE ALTERNATIVE. SUMMARY ADJUDICATION

EXHIBIT ALwo wa aA WwW & WN

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effects from those hazards, Additionally, I have a Masters of Public Health degree from the
UCLA School of Public Health in Epidemiology and a private practice in Occupational
Medicine and Industrial Toxicology. Public health addresses health problems as they affect
gtoups of people as contrasted to individuals. I may study whole groups of people in order to
understand what the problems of the population at large are and then develop interventions,
techniques, or preventative tools to reduce those problems. Iam Board-certified by the
American Board of Preventive Medicine in both General Preventive Medicine and
Occupational Medicine.

2. My private practice focuses on occupational medicine and industrial toxicology,
providing consultative services to industrial and other clients regarding occupational medicine
and:industrial toxicology. This includes interpretation and application of OSHA occupational -
health standards as well as workplace hazzard assessment and recommendations regarding

mitigation or control of existing health hazards; interpretation of industrial hygiene data with

.assessment of health risk;. interpretation of biological monitoring and medical surveillance data:
with recommendations, -where appropriate, for farther actions regarding health hazard fe :
identification and control; analysis.of injury and exposure data; development of programs for
management and employee training in medical, safety and industrial hygiene; and research and
investigation in industrial toxicology including investigation of illness clusters and scientific
literature review. ‘

3. Early in my career, I spent nearly a year with the City of Long Beach as the assistant
health officer working on public health programs. I also spent nearly a year at L.A. County,
USC Medical Center as the infection control epidemiologist for the hospital. My department
was responsible for identifying iatrogenic infections that patients developed after they were
hospitalized and determining their causes in an attempt to reduce or eliminate such infections. J
also spent several months at the Long Beach Naval Shipyard in occupational medicine studying
occupational health issues at the shipyard, and specifically with respect to asbestos. The Long
Beach Naval Shipyard had nine dry docks and handled large ships such as aircraft carriers,

among others. I became familiar with a program to measure asbestos exposures that

sabes obec EC 2. AB
DECLARATIO} ICHARD COHEN, M.D., M.P.H., IN SUPPORT OF PLAINTIFE'S OPPOSITION TO DEFENDANT CRITCHFIELD
MECHANICAL. IRS MOTION POR SOMMARY “SGDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIODICATION.were occurring to some of the workers there, as well as a program that involved medical
examination of some of the workers who worked with asbestos in an effort to determine if they
had health effects due to asbestos exposure.

4. In 1981, after I left the Navy, I began work as an employee of an electronics company
in Palo Alto. Lwas the Director of Corporate Health and Safety for 19 years. In my role there, I
performed both clinical work, seeing medical patients, and non-clinical work where I managed
the industrial hygiene, safety and medical programs for the company. For instance, I spent
some time advising the company as to what types of medical testing should be performed on,
workers, depending on the hazards they might encounter when doing their work. For example,
if the employees went to a computer chip manufacturer such as Intel and there were chemicals
and toxic gases in those places, I would advise the company regarding the types of medical tests
that would be helpful to determine if the employees had any effects from their exposures at
work. I also had a private practice of occupational medicine that started in. 1981 as well, where-
in I worked with other companies advising them on health issues that could affect.theit workers.

_ 5, Twas a volunteer consultant for CAL/OSHA in the 1980s.and from 1997 to 2004

i} including: 1997. to 2004 when I was a member-of the CAL/OSHA Airborne Contaminants’. ..

Advisory Committee. As a member of that committee; we recommended regulatory limits -
regarding how much of a hazardous substance could be in the air that a worker might breathe
without causing health effects. As a committee member, at CAL/OSHA's request, we reviewed

the scientific information on many substances and then recommended back to CAL/OSHA what

we thought an "exposure limit" ought to be; in other words, how much of a given chemical, dust.

or metal should be allowed.in the air that a worker could breathe. Most of our
recommendations were adopted as actual regulations in the State of California as "permissible
exposure limits", also known as “PELs.”

6. My work has also included the assistance with the development and implementation
of occupational health programs, including patient evaluation and toxicity assessment; patient
evaluation to determine the presence of acute or chronic occupational illnesses; and the

assessment and primary care of acute exposures to toxic substances. Additionally, I have taught

Kttejurodht 924shg hd doch RCahen: CRIMEC wed 3 ANB.

DECLARATION OF RICHARD COHEN, M.D., MP-H., IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT CRITCHFIELD:
MECHANICAL, INC."§ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONDO wm aw A WB WON

industrial toxicology to medical professionals, including physicians, nurses, and safety
personnel. I have also assisted with the development and implementation of occupational
health programs, including toxicology assessment; conducted clinical evaluations of patients for
occupational illnesses; been an instructor in industrial toxicology at University of California
San Diego; been a Clinical Professor of Medicine at the University of California San Francisco
since 1998; been Assistant Chief of the Environmental Health Service at the Naval Hospital,
San Diego, where I supervised eight industrial hygienists as well as numerous other medical
staff and personnel; and have developed programs for the management of industrial hygiene,
safety and related training. I have provided lectures as a part of post-doctoral training to
physicians on subjects including occupational medicine and industrial toxicology.

7. Lhave been qualified to testify as an expert witness in federal and state courts in the
areas of | ‘epidemiology and industrial toxicology of asbestos. I have testified as an expert
witness in many trials regarding asbestos "state of the-art" and asbestos exposure.

-8. Thave.researched and published. numerous articles ‘on occupational health and . -
industrial. toxicology. This.research includes the area of asbestos, what -was known about the
health hazards of asbestos, and when such information would-have been reasonably known.: .

9. Thave also researched and reviewed extensive medical, scientific, regulatory, and
governmental publications regarding asbestos, including hundreds of published articles.on
asbestos and asbestos-related diseases. | have also reviewed industry and company documents
entailing research and findings in the areas of asbestos and asbestos-related diseases as a result
of working in various occupations, including, but not limited to, construction workers and Navy

seamen, insulators, pipefitters, boilermakers, plumbers, electricians, drywaller workers,
painters, contractors and papermill workers, among others.

10. [have been qualified as an expert and have testified in numerous asbestos cases
regarding the above, especially with regard to the issue of when knowledge of the health
hazards of asbestos became available. The subject is known as “asbestos historical state of the
art." [have reviewed historical scientific and medical literature regarding asbestos disease

hazards at the request of defense and plaintiffs’ attorneys since the early 1980s for the purpose

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DECLARATION OF RICHARD COHEN, M.D, EF'S OPPOSITION TO DEFENDANT CRITCHFIELD
MECHANICAL. INC'S MOTION POR SUMMARY JUDGMENT OX, IN THe ALTERNATIVE. SUMMARY ADJUDICATION

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5of providing asbestos state of the art testimony at trial in asbestos personal injury and wrongful
death cases. 1am qualified and routinely testify as to the medical issues involved in such cases,
including, but not limited to, medical causation, asbestos risks and disease, epidemiology, state
of the medical and scientific art concerning asbestos-related diseases at relevant times, the
nature and use of asbestos products, and the subject's exposure to asbestos, and all other _
workplace toxins and carcinogens. | am qualified and-also often testify as to asbestos products
defects, the release of asbestos fibers from asbestos products, disease potential of various
asbestos products, asbestos health hazards, industry awareness, and state of the art relating to
the hazards of asbestos, applicable rules and regulations, and other industrial hygiene related
issues. .

11. Attached hereto:as Exhibit 1 is my current Curriculum. Vitae, which fairly
summarizes my professional and educational background, as well as enumerating my
professional publications. Also attached is my bibliography listing: hundreds of articles ‘
pertaining to asbestos that Lhave reviewed and upon which I rely.for my opinions. «. »

12. It has Jong been known in the scientific and. medical community that the inhalation
of “dust” can be hazardous, regardless of whether or not the dust is visible to the naked eye and

whether or not the dust contained asbestos. In fact, asbestosis isa pneumoconiosis, which - -

means lung disease.caused by dust. As the knowledge regarding the hazards associated with.

asbestos developed through the 1930's and 40's, there was concurrent understanding reflected in|

the medical scientific and industrial hygiene literature that there was a general hazard caused by
dust in the workplace. Among workplace dusts, those mentioned as potentially hazardous in’ the
literature of the 1930's and 1940's were dusts from silica, quartz, asbestos, flint, talc, coal, iron
and clay as well as dusts of various metals and other toxins. Because of the wide variety of
harmful dust constituents, the only way to assure worker safety was to assume all dusts to be
hazardous unless established to be otherwise. As written in the Safety Engineering article
(1931), “The only safe way for an employer is to regard all dusts in industry as a hazard. Under
best conditions it cannot help but be harmful, while under adverse conditions the shortening of

life is inevitable.” To similar effect, an article in National Safety News (1935) advised, in the

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DECLARATION OF RICHARD M.P.H., IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT aNT ERIGIRELS
PECHAMICMT ING’S MORON eae Cer ‘JODGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONeC we Ya A A YON,

absence of knowledge that dust is not hazardous, “...it is necessary to assume that all mineral
dusts contain some health hazard and put them under control.”

13. The understanding of workplace dust hazards was not confined to narrow medical
or scientific circles, The two periodicals mentioned, Safety Engineering and National Safety
News were written for and available to the business and industry community. That businesses
could know and did know of generalized dust hazards and could take responsible and effective
action based on such knowledge is exemplified by the actions of Standard Oil Company. As
chronicied in the 1937 report of Roy Bonsib discussed below, Standard Oil undertook.a
comprehensive “medico-safety” survey of virtually all of the dust producing activities involved
in the operation of an oil refinery at that time. The survey included an assessment of potential
exposures from dozens of dust producing operations, examining not just such obvious

operations as insulating (asbestos) or sandblasting (silica), but also operations as diverse as

|| woodworking or the grinding of pyrethram flowers and derris root. -

» 14. The problem of various dusts causing-pneinoconioses was well known in the
medical and scientific community over 150. years before asbestos.was recognized as causing
asbestosis: The longstanding knowledge of hazards posed by dusts generally is further
substantiated by the following:. te fone

a. In 1760, Bernadino Ramazzini, an Italian medical professor, wrote De Morbis
Artificum Diatriba (Diseases of Workers) which, among other materials, discussed dust as a
cause of occupational diseases among workers. (Ramazzini, B., Diseases of Workers, 1713
[translated from the Latin text DeMorbis Artificum of 1713, Wilmer Cave Wright, transl. Intr.
George Rosen, The New York Academy of Medicine, Harper Publishing Company, Published
in 1964].)

b. Thomas Oliver published his seminal work, Dangerous Trades, in 1902.
(Oliver, Thomas, Dangerous Trades, E.P. Dutton and Co., New York and John Murray,
London, 1902). Included in his book is an entire chapter dedicated to discussing the dangers
associated with dust-producing occupations. Oliver states, in part, “That the constant inhalation

of dust as a necessary condition of daily labour results sooner or later in the appearance of grave

XUnjoedh 9360p ect Robes CRIMEC wp 6 AB.

DECLARATION OF RICHARD COHEN, M.D. id F-H. IN SUPPORT OF BLAINTIEY’S OPPOSETION TO DEFENDANT CRITCHFIELD
HANICAL, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONwoe uw HH BR YON

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and characteristic lesions which lead to premature breakdown and death among the workers, is a
matter of common medical experience.” (Oliver., Dangerous Trades, p. 134.)

c. Furthermore, there have been recommendations in publications as far back as
the early 20th century concerning the suppression of such dangerous dusts. For example, Oliver
also discusses the dangers associated with a lack of proper ventilation for workers whose
occupations are not otherwise dangerous, and cites the lack of proper ventilation from these
airbome dust and particles as a cause of their diseases. (Oliver, Dangerous Trades, p. 149.)

d., In 1917, an entire section dedicated to dust temoval in the workplace was

published in The Standardization of Working Essentials, by Lillian Erskine and John Roach,
Annals of the American Academy of Political and Social Science, Vol. 71, “Stabilizing
Industrial Employment Reducing the Labor Turnover” (May 1917, pp. 86-90); in which they
recommended that the minimum standard where workers were exposed to dust, dirt and

poisonous materials should be provided with a clean place in which to change from street

-clothes to-working:clothing. “The presence of animal, vegetable, metallic, or mineral dusts in

the air of the workroom is a-menace to the self-respect and vitality.of the. worker. When:such- .

dusts are, in-addition, of a cutting or poisonous.character; their hazard is.increased a»
hundredfold. [ ] When it is remembered that at each breath some sixty cubie inches of. dust-
Jaden air may be inhaled by a worker, the ultimate injury possible-to the twenty square feet of
surface of the 500,000,000 air cells of his lungs becomes apparent.”
- e. In 1934, the International Labour Office, Standard Code of Industrial

Hygiene, published recommendations regarding the prevention of exposure to dust. “During
manipulation of dust-producing material, or manual or mechanical work causing dust liable to
injure the health, requisite measures should be taken to prevent dispersion of such dust in the air
of the workroom.” (Section XXXIX.)

f£. By 1949, the International Labour Office, Model Code of Safety Regulations
For Industrial Establishments for the Guidance of Governments and Industry at Chapter X,

provides definitions of “Dangerous and Obnoxious Substances” including the term “dusts.”

The term “dusts” means “solid particles capable of being blown about or suspended in the air,

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DECLARATION OF RICHARD COHEN, MD. MPH, IN SUPPORT OF PLAINTIT’S OPPOSITION TO DEFENDANT CRUTCHFIELD

MECHANICAL, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoo IN A A eB WD

which are generated by handling, crushing, cutting, drilling, grinding, rapid impact, spraying,
detonation or disintegration of inorganic or organic materials such as coal, grain, metal, ore,
rock or wood and are of a composition similar to the substance or substances from which they
are derived.” The Code further provided methods of protection by requiring special precautions
to be used to avoid exposure to such dust.

15. By no later than the mid-1930s, both the State of California and the federal
government set forth regulations governing, among other things, the industry practices of
employers as they related to the specific workplace hazards posed by dusts.

a, On December 28, 1936, the California Department of Industrial Relations
issued a series of General Industry Safety Orders entitled, “Dusts, Fumes, Vapors and Gases -
Safety Orders.” A true and correct copy of these safety orders is attached hereto as Exhibit 2.
These orders required suppression, control and prevention of-harmful dust.by every employer at
every place of employment. These orders defined “harmful.dust” to include asbestos dust.

Moreover, violation of these orders constituted a misdemeanor, ‘punishable by afineor jail
time. (“Penalties-for Violation.of Order”). ~~:
-, .¥, Order 1901, regarding “Application,” states that “[t]hese orders shall
apply to every place of employment where a work or process is carried on
‘by which dusts... of a harmful nature are produced or generated, or
exist independently of the work or process, which may be inhaled in
quantities or concentrations that constitute harmful exposure as-
hereinafter defined or be in any other manner injurious to health.”
(emphasis .added)
2. Order 1902, sub. 12, defines “dust” as “particles of solid matter in
such state of comminution that they may be inhaled, swallowed or :
absorbed.” .
3. Order 1903, “Harmful Exposure,” directs the reader to Appendix A.
Appendix A recommends that the total amount of non-toxic dust not

exceed 50 million particles, of a size between 0.5 and 5 microns, per

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DECLARATION OF RICHARD COHEN, M.D., M.P.H., IN SUPPORT OF PLAINTIFF'S OPPOSITION 10 DEFENDANT CRITCHFI
MECHANICAL, INC, 'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ‘ADIODICATION >Oo we NAH BW DnD

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cubic foot of air. In listing harmful dusts, Appendix A specifically
highlights asbestos dust: “The Commission recommends that the
following limiting concentrations be used as a basis in determining the
existence of a health hazard in places of employment. ... Asbestos: 10
million particles, of a size between 0.5 and 10 microns, per cubic foot
of air.” (emphasis added)
4, This succession of orders provides for and requires a variety of
methods intended to prevent and reduce exposure to harmful dusts.
Order 1904, “General Ventilation” requires that, “[w]herever harmful
dusts . . . exist, or are produced in the course of the employment, and
prevention, elimination or control of, said hazards is not practicable by
jocal exhaust, or other means hereinafter provided, the capacity of the
- general ventilation system . . ::shall-be so augmented as to provide for the
-.1 - elimination of said -hazards.to‘a degree. specified under Order 1903.”
: . (emphasis added) Where “general-ventilation” is insufficient, Order
*. 1905 requires the use-of local exhaust:ventilation; where local-exhaust

‘ventilation is insufficient, Order 1906 requires the use of personal
protective equipment (although sub. G of this order makes plain that this
is intended to be a temporary step). Order 1907 requires that, wherever
possible, an injurious substance shall be replaced by a non- or less-
injurious substance.
5. In addition, Order 1908, “Dust-Allaying Media” requires the
suppression of harmful dust: “Use shall be made of water, oil or

‘ chemicals . . . as may be necessary to suppress and allay harmful
wherever the provisions of Orders 1904 and 1905 and impracticable or

inadequate to prevent harmful exposure.. The use of dust-allaying media

may also be supplementary to other provisions of these orders.”
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DECLARATION OF RICHARD COHEN, M.D., MPH. IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT CRITCHFIELD
MECHANICAL, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN-THE ALTERNATIVE, SUMMARY ADJUDICATIONow nn we WN =

= 56

6. Appendix A specifically recommends the “use of dust counts . . . for
the purpose of obtaining information as to the existence of dust hazards,”
and notes that such counts, “if taken periodically, will determine the .
effectiveness of dust control measures.”

b. On July 20, 1945, the California Department of Industrial Relations re-
issued the foregoing series of General Industry Safety Orders. A true and correct copy of these
Orders is attached hereto as Exhibit 3. This issuance provided a subtitle for Appendix A,
“Suggested Maximum Permissible Concentrations (Toxic Thresholds),” and indicated- that the
total dust present not exceed 50 million particles (0.5 - 10.9 microns in size) per cubic foot

of. air. This Appendix provides for a threshold limit for asbestos dust of 5 million particles,

of a size between 0.5 and 10 microns, per cubic foot of air.

c The January 22, 1955 revisions to these General Industry Safety Orders
defined “Harmful” as follows: ‘as applied to dusts . :.: means productive-of injury or :

|. impairment of the normal functions of any part.of the body. thereof . . .. The same Orders

defined “Harmful effect” as “any bodily injury, disease; or impairment ....” The same Orders

defined “Harmful exposure” to mean “exposure to-dusts ... of such-duration and such +:

concentration as to produce effects herein defined as harmful,” and noted-the maximum. -

acceptable concentrations of substances set forth in Appendix A.” These Orders further noted °

that “ijt cannot be taken for granted that higher concentrations than those given in the table are

safe for short and occasional exposure. . . . It cannot be assumed that a substance safe for eight

hours in a concentration of 100 parts per million will be safe for one hour at 800 parts per

million.” A true and cotrect copy of these Orders is attached hereto as Exhibit 4.

d In 1931, an article by Frederick Willson, M_D., entitled “The Very Least
an Employer Should Know about Dust and Fume Diseases,” was published in Safety
Engineering. The article observed that “the employer who has at heart the welfare of his
workmen and the best monetary interests of his company should wish to have some information
on the subject, that he may not err through ignorance of the danger of dust and fumes or of the
lability under the law which he must always face.” The article opined that “no employer can

signage ACen CMEC ps 10 ap

DECLARATION OF RICHARD COHEN, M)., M.P.H., IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT CRITCHI
MECHANICAL, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONobserve reasonable care unless he has at least a little knowledge about the nature of dust and
furne hazards,” and then went on to provide the following information:
Foreign particles in the air become dangerous to human beings when their mass
ig so slight that they readily remain in suspension in the atmosphere... . Under 5
microns in size dust particles readily pass through the mouth and nose, traverse
the bronchial passages and lodge in the alveolar tissue, from which remote parts
of the lung structure they cannot be dislodged by hawking or coughing. ...
Naturally, the more concentrated the quantity of dust and fume in suspension in
the atmosphere the greater the danger to which the workman is exposed and the
smaller the particles the greater the likelihood that entrance into the lung
interstices will ensue. The size of particles in prolonged suspension in the air is
more likely to be under 5 microns than over; probably the most dangerous sort of -

* dust is that ranging from 2 microns to 0.5 micron, or smaller...” >

The article went on to report the following: “We do:know...-:. that breathing of dust - -°

under the following conditions is serionsly-harmful:

itis used.” ~
+ 16. In the course of my study of the historical documents relating to the asbestos . -
industry and use of asbestos, I have personally assembled-a chronology of major publications
regarding the health hazards of asbestos.

Asbestos and every operation in which: ‘|-\

17. Based on my above-mentioned experience and training and historical review, in my
opinion the medical and scientific literature makes it clear that, at least as early as 1931, it was
known in the medical and scientific community that breathing asbestos dust was harmful and
dangerous to human health. As stated by Dr. Frederick Willson in 1931, "We do know,

however, that breathing of dust under the following conditions is seriously harmful: . . .
asbestos and every operation in which it is used." (Wilson, Frederick, “The Very Least An
Employer Should Know About Dust And Fume Diseases,” Safety Engineering, November
1931, Volume 62(5), pp. 317-318, emphasis added.) (This article is fully incorporated herein.

by this reference.) Additionally, the fact that asbestos exposure causes asbestosis, and the need

Kllnured19540)gidWec RCoben CRIMEC pd 11 AB
DECLARATION OF RICHARD COHEN, M.D, MPH, IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT CRITCHFIELD
MECHANICAL, INC'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION© oO WD RB WON =

S

for safety precautions, including masks, respirators, education, ventilation, dust control, and
substitution, to prevent asbestos-related diseases, was known as early as the 1930s, as
referenced in articles contained in my Bibliography, including Merewether ERA, Price CW,
“Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos
Industry,” His Majesty's Stationery Office, London, 1930, pp. 1-34. Many of the preventive
techniques to address asbestos exposures are still in use today as standard industrial hygiene.
Further, based upon my research, education, experience, and the articles referenced in my
bibliography, it is my professional opinion that it was clear by 1952 that, regardless of the
setting, it was known or at least knowable that a person exposed to airbome asbestos was at an -

increased risk of developing cancer.

18. Based on my above-mentioned experience, training, and historical review, below is
a brief summary of only a few of the many articles I have studied about the historical state of. ~
knowledge about the hazards of asbestos: Se coe : .
Tw BAS early as 1898; the Annual Report of the Chief Inspector of Factori¢s and -

. Workshops. in England identified lung disease among workers in asbestos textile mills.

b. In-1924, Cooke wrote an article in the British Medical Journal titled. -
"Fibrosis of the Lungs Due to the Inhalation of Asbestos Dust".

: c. In 1931 an article was published in the magazine Safety Engineering, which
was a publication intended for people who had responsibility for preventing injury and iliness.
This article, titled "The Very Least-an Employer Should Know About Dust and Fume
Diseases," lists a number of conditions under which breathing of dust is seriously harmful. That
list includes the entry: "Asbestos and every operation in which it is used."

d. In 1934, in an article titled “Pulmonary Asbestosis" published in The Lancet,
two physicians reported 100 cases of people with asbestosis. The occupations of the people
involved revealed that it was not only workers in the asbestos textile factories who developed
asbestosis, but also people who worked with asbestos in other circumstances. The significance
of the article is that it demonstrated that what was important was not the job or its location, or
the product involved, but the fact that one had inhaled asbestos dust.

KAdgiwes\I984ohp ideo Coben CRIMEC wil . 12

ANB,
DECLARATION ‘OF RICHARD COHEN, M.D., M.P.H., IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT CRITCHFIELD
IANICAL, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONeC me TN RR YN

. e. A publication by the Commonwealth of Pennsylvania, Department of Labor
and Industry, in 1935, titled “Asbestosis,” was remarkable because it contained a bibliography
of over 100 reference works pertaining to.asbestos related disease. The significance of the
article is that as of 1935, a doctor in the U.S. ina relatively small town, Harrisburg, PA., could
become aware of over 100 articles published about asbestos and disease, many of which were
written in languages, other than English. :

f. Ina 1942 Safety Bulletin issued by the Commonwealth of Pennsylvania, in an
article entitled “Exhausting Asbestos Fiber and Dust in Wire Insulation Manufacture,” Robert
L. Houts, industrial chemist, cautioned that if asbestos by-product was allowed to escape into
the workroom, it would float to far boundaries of the plant and would not be controllable.

g. In 1944 an editorial in the Journal of the American Medical Association
identified asbestos as one. of the causes of environmental.cancer. The significance of the article
is.that by this-time in-1944, credible and respected authorities in the medical community
considered that asbestos was suspected of or known to cause cancer..." * wo

h. In 1948, Roy Bonsib, industrial hygienist for Standard Oil, recommended:

" ant etictency, This is espcbally tue when persons are working wiltwnore oF
less toxic or carcinogenic materials...many of the more progressive industrial
have inttutedloupaky cervice, Hndustral Werk Clothes: Their Provision and
Laundering." Roy S. Bonsib. 1948.

L In 1949 an article appeared in Scientific American titled “Cancer and the
Environment." It was one of the first articles to appear in the popular media to discuss the
subject of asbestos being a possible cause of cancer. I have also found reference to asbestos as
a cause of cancer in newspaper articles as early as 1949. _

j. In 1950, Dr. Hueper, the Chief of the Cancerigenic Study Section, National
Cancer Institute, National Institute of Health, published a monograph titled "A Methodology for
Environmental.and Occupational Cancer Surveys" in Public Health Technical Monograph
No, 1, 1950. In that article he listed agents, chemicals, metals, dusts, etc. which were known to |

193 RCohen CRIMI 4 + ASB
DECLARATION OF RICHARD COHEN, M.D., M.P.H., IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT CRITCHFIELD
MECHANICAL, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

nt RRcause cancer. Among those substances was asbestos. Under asbestos he listed various
asbestos-related trades or jobs that he considered to be at increased risk for cancer, because they
involved asbestos exposure. The significance of the article is that it reveals that there was a
cancer concem not only for the asbestos factory workers, but for other trades exposed to
asbestos working with asbestos-containing products. Among the at-risk trades identified by

Dr. Hueper were asbestos construction material workers, asbestos insulation workers, asbestos

brake lining workers, people that used asbestos brake lining, carpenters, plumbers, roofers,

| gasket makers, insulation workers (pipe and boiler), and pump packing mechanics.

k. In 1952, the Encyclopedia Britannica, in its entry regarding “Occupational
Cancers,” noted that “[cJancers of the respiratory tract involving the mucosa of the nose, the
antral cavities, the larynx, the bronchi and lungs occur in workers who are exposed to the
-inhalation of chrome salts, asbestos dust and nickel carbonyl.” A true and correct copy of this -
entry is attached hereto as Exhibit 5. ‘
.. L. By 1958 the American Conference of Governmental Industrial Hygienists had

established a ‘maximum atmospheric concentration for asbestos. dust of five million particles’.

per cubic foot of air. This amount of asbestos in the air was then-known not to be visible cand
could only be detected by air- sampling measurements;
m. On April 6, 1959, the New York Times published an article, entitled “Job.

Relationship to Cancer Sought.” The article reported that “{mJore than 70,000 workers are
being checked to see whether their jobs make them particularly susceptible to lung cancer.”
Those being studied, the article continued, included “steam-fitters and all others who work with
asbestos.” A true and correct copy of this article,is attached hereto as Exhibit 6.

“n. In 1960, J.C. Wagner, C.A. Sleggs and Paul Marchand, published the article
“Diffuse Pleural Mesothelioma.and Asbestos Exposure in the North Wester Cape Province” in
the British Journal of Industrial Medicine. Among the mesothelioma victims studied by the
authors were several cases of bystander exposure. Case 4 was a white female, 56 years of age,
who was a social worker. She may have had short exposures to the mines as a child and made a

few visits to the mines later with her husband who owned a mine. She also worked as a clerk in

Kalajoreds1944PiplNteet RCohen CRUMEC upd 4

nnn UB.
DECLARATION OF RICHARD COHEN, MD. -MP-H. IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT CRITCHFIELD

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUD)wo I DA HW & BN

RN BW MR NN Rm ee ee
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an asbestos warehouse from 18 to age 24. Case 24, a white male accountant, 32 years of age,
lived near an asbestos mine until age 7. His only other asbestos exposure occurred when he
visited the mine to periodically audit the financial records. Wagner’s study established asbestos
as the cause of mesothelioma.
o. In 1964, at the large conference held by the New York Academy of Sciences

(commonly referred to as the Selikoff Conference), researchers in Finland reported cases of
asbestosis among people whose only asbestos exposure resulted from living near asbestos
mines. The researchers and others in Germany had previously called attention to pleural
changes they had observed in chest X-rays of populations with environmental asbestos
exposure.

p. In 1964 Dr. Selikoff published his landmark article on asbestos disease in
insulation workers. He performed the first large-scale mortality study of asbestos product users

(insulators); he reported increased rates of death from lung cancer, mesothelioma, asbestosis,

J) and gastrointestinal cancer, all of'which he attributed to-asbestos. In addition to its.scientific »
|| contribution, it was politically and socially significant because it received widespread media: --*

exposure: It was transmitted to hundreds of American newspapers by the Associated Press wire -|."

service and brought public attention to the health risks associated with asbestos.
19. Based on my above mentioned experience, training, and historical review, I can
further state the following facts about the historical knowledge of the dangers of asbestos:

a. In the late 1920s and certainly by the 1930s it was clear that breathing
asbestos dust caused asbestosis. Dr. Merewether's report in 1930, published by the British
government, lists various actions that he recommended to prevent the disease. Other
publications in the 1930s demonstrate that people in science, government, and industry at that
time understood that they could prevent the disease by preventing individuals from breathing
the dust. They indicated this could be done by either eliminating the dust at its source, by
providing respirators as breathing protection, or use other means to eliminate airborne dust. In
the early 1950s it became clear that asbestos could-cause asbestosis and lung cancer in a large _

variety of settings. It was demonstrated clearly in the literature by the early 1950s that asbestos

niseihs924 Cohen CR 15

DECLARATION OF RICHARD COHEN, M.D, M.P.H., IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT CRITCHFIELD
MECHANICAL, INC,‘S MOTION FOR SUMRIARY JUDGMENT ‘OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONrelated disease could occur in any locale or with any task or with any product involving
sufficient asbestos exposure.

b. Information regarding asbestos hazards, as well as remedial steps to eliminate
or reduce those hazards, was not confined to those involved in academia or medical research.
‘The availability of information to business and industry is illustrated by documents generated by
private industry dating from the 1930s.

c. The 1935 Minutes of the Medical and Surgical Section of the American
Association of Railroads show that the physicians who were responsible for medical issues
among railroad employees discussed exposure to asbestos and related risk to railroad workers.
They included discussion of preventive measures that are still used today, including: using
masks to filter the air; using techniques to wet down the dust lying on the floor so it doesn't get
re-circulated; using apparatus that would pull the dust away from the worker, and doing medical

exams on.the workers to determine if they are sufficiently protected from asbestos so as:to not

| develop asbestos related disease.: The historical state of the art evolved in such a way ‘that it was.

|. clear in the early 1950s that people performing tasks-or in situations.that generated airborne:

asbestos, regardless of the product involved, including workers in the insulation trades,.were-
going to be at risk for asbestos-related disease.

: d. In 1937, Roy Bonsib conducted a study of dust hazards present in the oil
refinery setting on behalf of Standard Oil Company of New Jersey. He included asbestos as a
hazardous dust and noted the greater level of hazard presented by the removal of asbestos
insulation materials. He recommended the use of well-recognized procedures to minimize the
creation of dust and reduce or eliminate exposures to hazardous dust(asbestos) including
engineering controls, wet down, containment, isolation of work, and the use of respirators.

e. Besides what was knowable through medical and industrial hygiene literature
and industry publications, businesses in California were additionally on notice as to the-hazards

of asbestos from an early point in time by virtue of various governmental regulations and

orders. As of 1936, California General Industry Safety Orders ("Safety Orders") stated that the

concentration limit to “be used as a basis in determining the existence of a health hazard in

Kibyjredinosemoindect RCohen CRIMES vod 16

BECEARATION OF RICHARD COHEN MID, MPIL WI SUPFORT OF FLANVTP'S OFPOSTTIONTO DEFENDANT CRCHTELD
MECHANICAL, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONomy aA He WON

places of employment" was "10 million particles" of asbestos, a size of ”.5 and 10 microns, per
cubic foot of air.” (Appendix A to Safety Orders.) Therefore, by the 1930s, the Safety Orders
prescribed procedures for minimizing exposure to asbestos dust including requirements for
exhausting asbestos dust, dust suppression procedures, and isolation of dust-creating work from
other workers. Specifically, the 1936 Safety Orders declare that "[e]mployers shall provide a
change room, shower baths and lavatories, having hot and cold running water, in every place of
employment..." (Order 1910(c).) The Orders further required that "[i]n every place of
employment where a work or process is carried on in which, or in connection with which, dusts,
fumes, vapors or gases are produced in quantities and under conditions which may injure the
health of employees, such operations shall be isolated unless the employer elects to control said
hazards under other provisions of these orders." (Order 1909(a).) The Safety Orders further -

- required the isolation of work with hazardous materials in the form of "[e]xhaust fans, ducts;

hoods, separators.and all necessary appurtenances... [Which] shall be so designed, constructed;

|| maintained and operated as to insure the required protection in the production of volume.and-

4) velocity of exhaust air sufficient to gather dusts, .fumes;-vapors or gases from said equipment:or - | «

.|| process and convey them to-suitable points of safe disposal thereby preventing their dispersion. -

‘in harmful quantities, into the atmosphere of work rooms or. other places where persons-are
employed." (Order 1905(b).) Only three years later, the 1939 Safety Orders reduced the --

amount of the "safe" concentration limit for asbestos from 10 million particles per cubic feet in

1936 to $ million particles per cubic fect in 1939. (Order 1910, Appendix A.)

f. Furthermore, in 1955, the Safety Orders restated that "{iJn every place of
employment where a work or process is carried on in which, or in connection with which, dusts,
fumes, mists, vapors or gases are produced in quantities and under conditions which may have
harmful effects on employees, such operations shall be isolated, unless the employer elects to“
control said hazards under other provisions of these orders." (Title 8, Chapter 432.169, §4107;
emphasis added.)

g. By the 1960s, there were at least 300 articles published in English concerning
the hazards of asbestos. There were a similar number published in other languages. ‘

RIM upd 12 . AB.

Kevoimedo5
DECLARATION OF RICHARD COHEN, M.D., MF-H,, IN SUPPORY OF PLAINTIFF'S OPPOSITION TO DEFENDANT CRITCHFIELD
MECHANICAL, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCoe WK wh Re WON

pete
Rw N = Oo

20. Based upon my background, training, knowledge, and the information referenced
above, it is my opinion that by the 1960s a company, working in construction and on jobsites
where contractors and laborers were working alike, should have been aware of potential
health hazards associated with exposure to certain occupational dusts generally. In view
of this, to the extent that any contractor was unaware of the composition of dust which
might be created or encountered, it ought to have sought out such information. Itis
likewise my opinion that by the 1960s a company, working in construction and on jobsites
where contractors and laborers were working alike, should have been aware of health hazards
associated with exposure to asbestos dust. Information was readily available prior to the 1960s
concerning the health hazards of not only exposure to certain occupational non-asbestos dusts,
but also to asbestos dust and the associated increased risk of developing an asbestos-related -
disease. Information regarding the substantial health risks associated with exposure, to airborne.

_asbestos was readily available by the 1960s, and only became more readily available over the. -- |:

course oftime. ;Equally available was information about measures.to reduce the creation of dust. | «

and eliminate or.teduce the exposure to.dust that:;was created...By the 1960s,. contractors, - wt

including defendant, located in California.and subject to California General Industry -.-|.--.:

++] Safety Orders, had ready access to information regarding methods for mitigating

exposures and.could have implemented them.

21. Based on my education, training, and experience, as well as my review of all of the
materials referenced above, it is my opinion that a contractor who worked in the construction
trades should have educated its employees about the precautions to be taken around workplace
dust, as set forth in the Califomia General Industry Safety Orders described above. It is clear
that, regardless of the setting, a person, such as ROBERT ROSS, thereby exposed to airbome
dust was at an increased risk of injury and disease. Such exposures were preventable. The
information regarding the hazards associated with dust exposure was readily available to
companies working in the construction trades, including CRITCHFIELD MECHANICAL, INC.
(“CRITCHFIELD”) by at least by the mid-1930s. Further, CRITCHFIELD, as a California
employer, was subject to the California General Industry Safety Orders described above, and

Wires 19340 deeb Cohen CRIME