Preview
FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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HARRY J. HAMPSON, : Index No.: 606219/2021
:
Plaintiff, :
:
-against- :
:
AMCHEM PRODUCTS, INC., :
n/k/a RHONE POULENC AG COMPANY, :
n/k/a BAYER CROPSCIENCE INC., et al., :
:
Defendants. :
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DEFENDANT PNEUMO ABEX LLC’S EXPERT DISCLOSURES
PURSUANT TO CPLR §3101(d)
Defendant Pneumo Abex LLC, successor in interest to Abex Corporation (hereinafter
“Abex”) by its attorneys, Hawkins Parnell & Young, LLP, respectfully sets forth:
The following statement of expected testimony has been prepared by counsel to comply with
the expert witness disclosure requirements under state law. The words and language used in this
statement are the words and language of counsel who prepared the statement, and not of the witness.
Abex disclaims any duty to introduce any of the below referenced witnesses at trial by virtue of
placing them on this master expert witness list.
Abex is not aware of all of the areas of testimony or proof that Plaintiff intends to produce at
trial and, therefore, it cannot proffer all expected testimony until it has had the benefit of reviewing
all of the Plaintiff’s expert’s reports and opinions. To the extent that a witness expresses an opinion
at trial or in discovery that has not been divulged prior to the time that this statement was served on
counsel, and which creates a need for additional areas of rebuttal testimony or proof, Abex reserves
the right to supplement this statement.
Abex hereby reserves the right to supplement this list when and if additional witnesses
become known to Abex prior to trial.Abex also hereby reserves the right to substitute any expert
witness in the event that any witness named herein is unable to appear at trial. Abex further reserves
the right to offer any witness for rebuttal or impeachment.
Abex objects to the use of any deposition testimony against it where it did not have proper
notice and a motive and opportunity to cross-examine the witness. If, however, the Court
nevertheless were to permit all or a portion of those depositions to be introduced at trial,Abex
reserves the right to introduce any other portion of these or any other deposition in rebuttal.
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1. Industrial Hygienists
Jeffery S. Birkner, Ph.D., CIH
Chemistry & Industrial Hygiene, Inc.
10201 W. 43rd Avenue
Wheat Ridge, CO 80033
Charles L. Blake, CIH
Bureau Veritas
3390 Chastain Meadows Parkway NW
Suite 300
Kennesaw, Georgia 30144
Dennis P. Bridge
Bridge Environmental Mgt Group
23675 Hedgeworth Court
Deer Park, Illinois 60010
Michael Connor, CIH, CSP
AIH Consulting
PO Box 411437
San Francisco CA 94141-1437
Gustavo A. Delgado, CIH
Forensic Analytical Laboratories, Inc.
3777 Depot Road, Suite 409
Hayward, CA 94545
G. Scott Dotson, MS, PhD, CIH
Cardno ChemRisk
20 Stanwix Street
Pittsburgh, PA 15222
William Dyson, Ph.D., CIH
Workplace Hygiene
420-B Gallimore Dairy Road
Greensboro, NC 27409
Shannon H. Gaffney, Ph.D., MHS, CIH
Cardno Chemrisk
101 2nd Street – Suite 700
San Francisco, CA 94105
Patricia H. Hall, CIH, MS
P. H. Hall & Associates, Inc.
305 Newport Avenue
Long Beach, California 90814
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John Henshaw, CIH, MPH
John Henshaw and Associates, Inc.
1101 Periwinkle Way, Suite 101
Sanibel, FL 33957
Dana Hollins, CIH, MPH
Cardno Chemrisk
101 2nd Street – Suite 700
San Francisco, CA 94105
Gayla McCluskey, CIH, CSP, ROH, QEP
Global Environmental Health Services, Inc.
Six Harford Lane, Suite 106
Radnor, Pennsylvania 19087
Steven Mlynarek, Ph.D., CIH
University of South Florida
Environmental and Occupational Health
12901 Bruce B. Downs Blvd.
Tampa, FL 33612
Donald E. Marano, PE, CIH
Marano & Associates
8231 Main Street
Bokeelia, Florida 33922
Jacob Persky, MPH, CIH
RHP Risk Management
8745 W. Higgins Road
Suite 320
Chicago, IL 60631
Sheldon H. Rabinovitz, CIH
Rabinovitz Consulting, Inc.
14712 Botany Way
N. Potomac, MD 20878
Charles Redinger, CIH, MPA, Ph.D.
Redinger & Associates, Inc.
6 Lancaster County Road, Suite 3
Harvard, MA 01451
Jennifer Sahmel, MPH, CIH, CSP
Insight Exposure & Risk Sciences
771 Ithaca Drive
Boulder, CO 80305
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Catherine Simmons, CIH
Simmons Environmental & Occupational Health Solutions, Inc.
3546 North Natchez Ave.
Chicago, Illinois 60634
John Spencer, CIH
Environmental Profiles, Inc.
813 Frederick Road
Baltimore, Maryland 21228
Fred Toca, Ph.D., CIH, CSP
Atlantic Environmental Inc.
2 E. Blackwell Street
Dover, Delaware 07801
Tony Watson, MSPH, CIH, CSP
Workplace Hygiene
420-B Gallimore Dairy Road
Greensboro, NC 27409
Francis W. Weir, Ph.D., CIH, DABT
8131 Wycombe Drive
Houston, Texas 77070
The testimony to be offered at trial by the above referenced industrial hygienists may include
the following:
A. Occupational exposures of Plaintiff as described by Plaintiff and/or Plaintiff’s co-
workers (including materials for which Abex allegedly is legally responsible) and
whether such exposures could be considered as creating a scientifically significant
amount of risk for the development of an asbestos-related disease. The manner in
which a risk assessment properly may be performed for individuals in various trades
or occupations, and a risk assessment for the Plaintiff in this case.
B. The recognition, evaluation and control of health and safety hazards. The accepted
standards, industrial hygiene practices and workplace safety practices during the
years of Plaintiff’s employment.
C. The principles of industrial hygiene and the factors that are important to industrial
hygiene studies. The manner in which experts use industrial hygiene data and how
the data should be interpreted in specific cases. The manner in which industrial
hygiene data should be properly considered in evaluating exposures.
D. The testing data (if any) used by Plaintiff’s experts and testing methods and
corresponding data. The studies of Plaintiff’s experts and published studies and
work performed by others in the past. The available scientific and industrial hygiene
literature relating to Plaintiff’s alleged exposures. These witnesses may rely upon
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their own test data and/or data that they find reliable, including but not limited to,
any relevant site inspection(s), to express an opinion about Plaintiff’s likely exposure
to asbestos, if any, from materials for which Abex allegedly is legally responsible.
E. The state of the art of industrial hygiene during the times relevant to Plaintiff’s
alleged exposures. State of the art testimony may include whether it was recognized
that a risk of development of asbestos-related disease was recognized for persons
such as Plaintiff or for materials for which Abex allegedly is legally responsible and
the appropriate steps to guard against that recognized risk, if any.
F. The development and utility of methodologies identifying and measuring asbestos in
air, dust and products/materials, and the process of setting threshold limit values
("TLVs"), the OSHA PELS, and other levels for asbestos exposure. This testimony
will also include the historical standards and recommendations from both
governmental and nongovernmental agencies concerning workplace levels of
asbestos exposure.
G. The relationship between scientific knowledge and the development of public policy
standards relating to asbestos exposure, and all aspects of government regulation of
asbestos exposure. They may further testify about the difference between scientific
studies and policy statements. The development of knowledge regarding the dose-
response relationship between exposure to asbestos and disease, and other related
matters.
H. The expert testimony or opinions offered on behalf of Plaintiff, including but not
limited to testimony, ifany, regarding the evolution of knowledge of the effects of
asbestos exposure, standards and regulations applicable to asbestos exposure, and
testing done by or on behalf of Plaintiff. The asbestos exposures described by
Plaintiff or his respective co-workers or other alleged exposure witnesses in this case.
I. The different types of asbestos fiber, their physical and chemical composition,
characteristics and uses in various products/materials as well as their potential to
cause disease. The specific exposures in this case, as alleged by Plaintiff and/or
other witnesses, and whether the alleged exposures created a significant risk of
asbestos-related disease.
J. The proper and accepted protocols for analysis of airborne samples for fiber release
from asbestos-containing products/materials, the potential for various
products/materials to release asbestos fibers, and the government and industry
standards regarding same.
K. Each of the above referenced industrial hygienists, will offer specific opinions, which
may include the following:
1. The expert’s experience in the testing of asbestos-containing materials, some
of which are similar in use or in composition to Abex’s friction materials,
which experience partially forms the basis of his or her opinion that these
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materials have been, and stillare, used safely in the workplace environment
and home, and they are not unreasonably dangerous, and they do not pose an
occupational or household hazard.
2. These experts have been or will be provided with any product or materials
exposure information and other case specific data in this case, including, but
not limited to, depositions of Plaintiff and other witnesses, including the
Plaintiff’s identified witnesses. In addition, in formulating their opinions,
these witnesses may also review and rely upon various case specific
documents produced in discovery including, but not limited to: Plaintiff’s
discovery responses and any available asbestos bankruptcy trust documents.
These experts will review Plaintiff’s exposures, if any, to Abex’s asbestos-
containing friction materials (including certain aircraft and railroad brake
linings – only some of which contained asbestos) as well as Plaintiff’s
exposure to other manufacturer’s products/materials. The expert may
quantify Plaintiff’s exposure, if any is alleged, to Abex’s asbestos-containing
friction materials (including certain aircraft and railroad brake linings – only
some of which contained asbestos) as well as exposure(s) to asbestos-
containing products/materials manufactured by other companies, and provide
opinions regarding the significance of each exposure. These experts may rely
upon any air sampling data and literature regarding exposure to other
asbestos-containing products/materials. These experts will discuss the
distinction between friable and non-friable materials. The expert’s opinion is
that because Abex’s asbestos-containing friction materials are resilient and
blended with other agents, so that fiber release is virtually eliminated. The
expert’s opinion is that foreseeable use of Abex’s asbestos-containing friction
materials (including certain aircraft and railroad brake linings – only some of
which contained asbestos) does not cause any occupational, bystander, or
household risk.
3. These experts may discuss and quantify the amount of asbestos in the ambient
air. In doing so, these experts may rely upon various ambient air testing data
– both published and unpublished. These experts may express opinions that
use of certain materials/products contribute to an asbestos exposure
comparable to the ambient air and that use of Abex’s asbestos-containing
friction materials (including certain aircraft and railroad brake linings – only
some of which contained asbestos), in general, result in exposure less than the
applicable time weighted average of OSHA’s permissible exposure level
from its first implementation to the current time.
4. These experts may also discuss levels of exposure to a direct user of asbestos
materials/products and contrast that exposure to the indirect exposure of a
nonuser bystander or household member. These experts may express the
opinion that a nonuser bystander has a substantially reduced exposure of at
least tenfold as that of a direct user.
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5. These experts may provide opinions that any exposure to Abex’s asbestos-
containing friction materials (including certain aircraft and railroad brake
linings – only some of which contained asbestos) to which Plaintiff claims
exposure, are well below the current, and all historical, permissible exposure
limits, excursion and short-term limits, and fall within the warning label
exemption of OSHA.
6. These experts may provide the opinion, based upon testing data and
epidemiological reports and studies, that persons exposed to asbestos-
containing friction materials (including those working around or with those
materials, or who are present in the vicinity of persons working with or
around such materials, or who come into contact with apparel of those
working around or with such materials) are not considered to be at risk to the
development of asbestos-related diseases.
L. In formulating their opinions, these witnesses may rely upon both unpublished and
published studies regarding the manufacturing, handling, installation, and removal of
asbestos-containing friction materials (including aircraft and railroad brake linings)
and related materials.
M. These industrial hygienists may also offer the following specific opinions:
1. That the foreseeable use of asbestos-containing friction materials (including
certain aircraft and railroad brake linings – only some of which contained
asbestos) does not produce an appreciable risk of any asbestos-related
disease.
2. That the Plaintiff’s use, installation, removal or contact, if any, with asbestos-
containing friction materials, did not increase the Plaintiff’s risk of
developing an asbestos-related disease.
3. That working with or around asbestos-containing friction materials (including
certain aircraft and railroad brake linings – only some of which contained
asbestos) does not increase an individual’s risk of developing malignant
mesothelioma. The bases for such an opinion are as follows:
(i) Epidemiological studies have shown that automobile repair workers
have no increase in the risk of developing mesothelioma over that of
the general population.
(ii) Pathology studies have reviewed lung tissue samples of persons with
mesothelioma claiming asbestos exposure from brake dust and those
studies have found that the fiber types present and the fiber burden
amount of asbestos present do not support an etiology from friction
materials.
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(iii) Approximately 99% or more of brake dust is converted to inert
mineral during the braking process. Any remaining fibers have been
shown to be mostly short chrysotile fibers.
(iv) Short fibers less than five micron in length are not causative, and/or
do not increase the risk, of disease.
(v) Occupational industrial hygiene information about exposures to dust
from asbestos containing friction materials shows that installation,
repair, and manipulation of these materials have traditionally been
well below the permissible exposure limit in the workplace both at the
current time and historically.
(vi) That asbestos-containing friction materials are manufactured with
chrysotile asbestos fibers.
N. These witnesses may also provide testimony based on a critical review and analysis
of the epidemiologic data of workers exposed to dust generated from working with
brakes, brake linings and other friction materials (including certain aircraft and
railroad brake linings – only some of which contained asbestos). These witnesses
will testify that epidemiologic studies demonstrate that automotive or brake
mechanics are not at an increased risk of developing an asbestos related diseases as a
result of their work on or near brakes or other friction materials.
O. As applicable, the witness’ case specific report is also incorporated herein.
1A. William Dyson, Ph.D., CIH
Workplace Hygiene
420-B Gallimore Dairy Road
Greensboro, NC 27409
Dr. Dyson may testify as to the various subject matters and opinions set forth in Section 1
above and that disclosure is incorporated herein. In addition, Dr. Dyson has reviewed historic
documents from the Abex Medical and Industrial Hygiene departments. Based on his review of
those documents, Dr. Dyson will testify concerning the activities of the Abex Medical and Industrial
Hygiene departments during the times relevant to this case, which include the following: x-raying
of workers and pensioners; physical examinations of employees; visits to plants; providing health-
related information to employees; conferring with employees about health-related issues; loaning x-
rays to employees for consultation with personal physicians; monitoring exposures of workers;
monitoring of diseases and claims of diseases; publishing of articles; and consulting with others on
medical and industrial hygiene issues. Dr. Dyson will express these opinions about the medical
program and industrial hygiene programs of Abex at the times relevant to this case; the programs
were comprehensive; the programs were properly conducted based on knowledge and information
then available the programs of Abex met or exceeded accepted standards for industrial safety,
industrial hygiene, and workplace safety; and the programs were conducted by qualified personnel.
Dr. Dyson may also testify based on the above information and based medical and scientific
literature that manufacturing facilities that produce asbestos-containing friction materials can be
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operated safely and that such facilities operated by Abex were operated safely. In addition, Dr.
Dyson will discuss the early English experience with asbestos, including Dr. Merewether’s
publications in England and the United States about asbestos exposure and occupational disease in
England and will quantify the exposures in various departments of the factories that Dr. Merewether
inspected and will compare those quantified exposures with exposures in U.S. plants.
1B. John L. Henshaw, MPH, CIH
John Henshaw and Associates, Inc.
1101 Periwinkle Way, Suite 101
Sanibel, FL 33957
Mr. Henshaw may testify as to the various subject matters and opinions set forth in Section 1
above and that disclosure is incorporated herein. Mr. Henshaw has also reviewed documents from
the Abex Medical and Industrial Hygiene Departments as it generally relates to asbestos. Based on
his review of those documents, Mr. Henshaw may testify concerning the activities of the Abex
Medical and Industrial Hygiene Departments, as it generally relates to asbestos, during the times
relevant to this case, which include the following: x-raying of workers and pensioners; physical
examinations of employees; visits to plants; providing of health-related information to employees;
conferring with employees about health-related issues; loaning x-rays to employees for consultation
with personal physicians; monitoring exposures of workers; monitoring of diseases and claims of
diseases; publishing of articles; and consulting with others on medical and industrial hygiene issues.
Mr. Henshaw may express the following opinions about the medical program and industrial hygiene
programs of Abex at the times relevant to this case: the programs were comprehensive; the
programs were properly conducted based on knowledge and information then available; the
programs of Abex met or exceeded accepted standards for industrial safety, industrial hygiene, and
workplace safety; and the programs were conducted by qualified personnel. Mr. Henshaw may also
testify based on the above information and based upon the relevant asbestos medical and scientific
literature that manufacturing facilities that produce asbestos-containing friction products can be
operated safely and that such facilities operated by Abex were operated safely.
1C. Mary A. Finn, Ph.D., MPH, CIH
Finn Consulting Services
2046 Treasure Coast Plaza, #A 300
Vero Beach, FL 32960
The testimony to be offered at trial by the above referenced Certified Industrial Hygienist
may include the following:
A. Occupational exposures of Plaintiff as described by Plaintiff and/or Plaintiff’s co-
workers (including materials for which Abex allegedly is legally responsible) and
whether such exposures could be considered as creating a scientifically significant
amount of risk for the development of an asbestos-related disease. The manner in
which a risk assessment properly may be performed for individuals in various trades
or occupations, and a risk assessment for the Plaintiff in this case.
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B. The recognition, evaluation and control of health and safety hazards. The accepted
standards, industrial hygiene practices and workplace safety practices during the
years of Plaintiff’s employment.
C. The principles of industrial hygiene and the factors that are important to industrial
hygiene studies. The manner in which experts use industrial hygiene data and how
the data should be interpreted in specific cases. The manner in which industrial
hygiene data should be properly considered in evaluating exposures.
D. The testing data (if any) used by Plaintiff’s experts and testing methods and
corresponding data. The studies of Plaintiff’s experts and published studies and
work performed by others in the past. The available scientific and industrial hygiene
literature relating to Plaintiff’s alleged exposures. This expert may rely upon her
own test data and/or data that she finds reliable, including but not limited to, any
relevant site inspection(s), to express an opinion about Plaintiff’s likely exposure to
asbestos, if any, from materials for which Abex allegedly is legally responsible.
E. The state of the art of industrial hygiene during the times relevant to Plaintiff’s
alleged exposures.
F. The development and utility of methodologies identifying and measuring asbestos in
air, dust and products/materials, and the process of setting threshold limit values
("TLVs"), the OSHA PELS, and other levels for asbestos exposure. This testimony
will also include the historical standards and recommendations from both
governmental and nongovernmental agencies concerning workplace levels of
asbestos exposure.
G. The relationship between scientific knowledge and the development of public policy
standards relating to asbestos exposure, and all aspects of government regulation of
asbestos exposure. She may further testify about the difference between scientific
studies and policy statements. The development of knowledge regarding the dose-
response relationship between exposure to asbestos and disease, and other related
matters.
H. The expert testimony or opinions offered on behalf of Plaintiff, including but not
limited to testimony, ifany, regarding the evolution of knowledge of the effects of
asbestos exposure, standards and regulations applicable to asbestos exposure, and
testing done by or on behalf of Plaintiff. The asbestos exposures described by
Plaintiff or his respective co-workers or other alleged exposure witnesses in this case.
I. The different types of asbestos fiber, their physical and chemical composition,
characteristics and uses in various products/materials as well as their potential to
cause disease. The specific exposures in this case, as alleged by Plaintiff and/or
other witnesses, and whether the alleged exposures created a significant risk of
asbestos-related disease.
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J. The proper and accepted protocols for analysis of airborne samples for fiber release
from asbestos-containing products/materials, the potential for various
products/materials to release asbestos fibers, and the government and industry
standards regarding same.
K. The above referenced Certified Industrial Hygienist, will offer specific opinions,
which may include the following:
1. The expert’s experience in the testing of asbestos-containing materials, some
of which are similar in use or in composition to Abex’s friction materials,
which experience partially forms the basis of her opinion that these materials
have been, and still are, used safely in the workplace environment and home,
and they are not unreasonably dangerous, and they do not pose an
occupational or household hazard.
2. This expert has been or will be provided with any product or materials
exposure information and other case specific data in this case, including, but
not limited to, depositions of Plaintiff, and other witnesses, including the
Plaintiff’s identified witnesses. In addition, in formulating her opinions, this
witness may also review and rely upon various case specific documents
produced in discovery including, but not limited to: Plaintiff’s discovery
responses and any available asbestos bankruptcy trust documents. This
expert will review Plaintiff’s exposures, if any, to Abex’s asbestos-containing
friction materials as well as Plaintiff’s exposure to other manufacturer’s
products/materials. This expert may quantify Plaintiff’s exposure, if any is
alleged, to Abex’s asbestos-containing friction materials as well as
exposure(s) to asbestos-containing products/materials manufactured by other
companies, and provide opinions regarding the significance of each exposure.
This expert may rely upon any air sampling data and literature regarding
exposure to other asbestos-containing products/materials. This expert will
discuss the distinction between friable and non-friable materials. The
expert’s opinion is that because Abex’s asbestos-containing friction materials
are resilient and blended with other agents, fiber release is virtually
eliminated. The expert’s opinion is that foreseeable use of Abex’s asbestos-
containing friction materials does not cause any occupational, bystander, or
household risk.
3. This expert may discuss and quantify the amount of asbestos in the ambient
air. In doing so, this expert may rely upon various ambient air testing data –
both published and unpublished. This expert may express opinions that use
of certain materials/products contribute to an asbestos exposure comparable
to the ambient air and that use of Abex’s asbestos-containing friction
materials, in general, result in exposure less than the applicable time weighted
average of OSHA’s permissible exposure level from its first implementation
to the current time.
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4. This expert may also discuss levels of exposure to a direct user of asbestos
materials/products and contrast that exposure to the indirect exposure of a
nonuser bystander or household member. This expert may
Preview
FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -----------------------------------------------------------------X HARRY J. HAMPSON, : Index No.: 606219/2021 : Plaintiff, : : -against- : : AMCHEM PRODUCTS, INC., : n/k/a RHONE POULENC AG COMPANY, : n/k/a BAYER CROPSCIENCE INC., et al., : : Defendants. : -----------------------------------------------------------------X DEFENDANT PNEUMO ABEX LLC’S EXPERT DISCLOSURES PURSUANT TO CPLR §3101(d) Defendant Pneumo Abex LLC, successor in interest to Abex Corporation (hereinafter “Abex”) by its attorneys, Hawkins Parnell & Young, LLP, respectfully sets forth: The following statement of expected testimony has been prepared by counsel to comply with the expert witness disclosure requirements under state law. The words and language used in this statement are the words and language of counsel who prepared the statement, and not of the witness. Abex disclaims any duty to introduce any of the below referenced witnesses at trial by virtue of placing them on this master expert witness list. Abex is not aware of all of the areas of testimony or proof that Plaintiff intends to produce at trial and, therefore, it cannot proffer all expected testimony until it has had the benefit of reviewing all of the Plaintiff’s expert’s reports and opinions. To the extent that a witness expresses an opinion at trial or in discovery that has not been divulged prior to the time that this statement was served on counsel, and which creates a need for additional areas of rebuttal testimony or proof, Abex reserves the right to supplement this statement. Abex hereby reserves the right to supplement this list when and if additional witnesses become known to Abex prior to trial.Abex also hereby reserves the right to substitute any expert witness in the event that any witness named herein is unable to appear at trial. Abex further reserves the right to offer any witness for rebuttal or impeachment. Abex objects to the use of any deposition testimony against it where it did not have proper notice and a motive and opportunity to cross-examine the witness. If, however, the Court nevertheless were to permit all or a portion of those depositions to be introduced at trial,Abex reserves the right to introduce any other portion of these or any other deposition in rebuttal. 1 of 57 FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 1. Industrial Hygienists Jeffery S. Birkner, Ph.D., CIH Chemistry & Industrial Hygiene, Inc. 10201 W. 43rd Avenue Wheat Ridge, CO 80033 Charles L. Blake, CIH Bureau Veritas 3390 Chastain Meadows Parkway NW Suite 300 Kennesaw, Georgia 30144 Dennis P. Bridge Bridge Environmental Mgt Group 23675 Hedgeworth Court Deer Park, Illinois 60010 Michael Connor, CIH, CSP AIH Consulting PO Box 411437 San Francisco CA 94141-1437 Gustavo A. Delgado, CIH Forensic Analytical Laboratories, Inc. 3777 Depot Road, Suite 409 Hayward, CA 94545 G. Scott Dotson, MS, PhD, CIH Cardno ChemRisk 20 Stanwix Street Pittsburgh, PA 15222 William Dyson, Ph.D., CIH Workplace Hygiene 420-B Gallimore Dairy Road Greensboro, NC 27409 Shannon H. Gaffney, Ph.D., MHS, CIH Cardno Chemrisk 101 2nd Street – Suite 700 San Francisco, CA 94105 Patricia H. Hall, CIH, MS P. H. Hall & Associates, Inc. 305 Newport Avenue Long Beach, California 90814 2 2 of 57 FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 John Henshaw, CIH, MPH John Henshaw and Associates, Inc. 1101 Periwinkle Way, Suite 101 Sanibel, FL 33957 Dana Hollins, CIH, MPH Cardno Chemrisk 101 2nd Street – Suite 700 San Francisco, CA 94105 Gayla McCluskey, CIH, CSP, ROH, QEP Global Environmental Health Services, Inc. Six Harford Lane, Suite 106 Radnor, Pennsylvania 19087 Steven Mlynarek, Ph.D., CIH University of South Florida Environmental and Occupational Health 12901 Bruce B. Downs Blvd. Tampa, FL 33612 Donald E. Marano, PE, CIH Marano & Associates 8231 Main Street Bokeelia, Florida 33922 Jacob Persky, MPH, CIH RHP Risk Management 8745 W. Higgins Road Suite 320 Chicago, IL 60631 Sheldon H. Rabinovitz, CIH Rabinovitz Consulting, Inc. 14712 Botany Way N. Potomac, MD 20878 Charles Redinger, CIH, MPA, Ph.D. Redinger & Associates, Inc. 6 Lancaster County Road, Suite 3 Harvard, MA 01451 Jennifer Sahmel, MPH, CIH, CSP Insight Exposure & Risk Sciences 771 Ithaca Drive Boulder, CO 80305 3 3 of 57 FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 Catherine Simmons, CIH Simmons Environmental & Occupational Health Solutions, Inc. 3546 North Natchez Ave. Chicago, Illinois 60634 John Spencer, CIH Environmental Profiles, Inc. 813 Frederick Road Baltimore, Maryland 21228 Fred Toca, Ph.D., CIH, CSP Atlantic Environmental Inc. 2 E. Blackwell Street Dover, Delaware 07801 Tony Watson, MSPH, CIH, CSP Workplace Hygiene 420-B Gallimore Dairy Road Greensboro, NC 27409 Francis W. Weir, Ph.D., CIH, DABT 8131 Wycombe Drive Houston, Texas 77070 The testimony to be offered at trial by the above referenced industrial hygienists may include the following: A. Occupational exposures of Plaintiff as described by Plaintiff and/or Plaintiff’s co- workers (including materials for which Abex allegedly is legally responsible) and whether such exposures could be considered as creating a scientifically significant amount of risk for the development of an asbestos-related disease. The manner in which a risk assessment properly may be performed for individuals in various trades or occupations, and a risk assessment for the Plaintiff in this case. B. The recognition, evaluation and control of health and safety hazards. The accepted standards, industrial hygiene practices and workplace safety practices during the years of Plaintiff’s employment. C. The principles of industrial hygiene and the factors that are important to industrial hygiene studies. The manner in which experts use industrial hygiene data and how the data should be interpreted in specific cases. The manner in which industrial hygiene data should be properly considered in evaluating exposures. D. The testing data (if any) used by Plaintiff’s experts and testing methods and corresponding data. The studies of Plaintiff’s experts and published studies and work performed by others in the past. The available scientific and industrial hygiene literature relating to Plaintiff’s alleged exposures. These witnesses may rely upon 4 4 of 57 FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 their own test data and/or data that they find reliable, including but not limited to, any relevant site inspection(s), to express an opinion about Plaintiff’s likely exposure to asbestos, if any, from materials for which Abex allegedly is legally responsible. E. The state of the art of industrial hygiene during the times relevant to Plaintiff’s alleged exposures. State of the art testimony may include whether it was recognized that a risk of development of asbestos-related disease was recognized for persons such as Plaintiff or for materials for which Abex allegedly is legally responsible and the appropriate steps to guard against that recognized risk, if any. F. The development and utility of methodologies identifying and measuring asbestos in air, dust and products/materials, and the process of setting threshold limit values ("TLVs"), the OSHA PELS, and other levels for asbestos exposure. This testimony will also include the historical standards and recommendations from both governmental and nongovernmental agencies concerning workplace levels of asbestos exposure. G. The relationship between scientific knowledge and the development of public policy standards relating to asbestos exposure, and all aspects of government regulation of asbestos exposure. They may further testify about the difference between scientific studies and policy statements. The development of knowledge regarding the dose- response relationship between exposure to asbestos and disease, and other related matters. H. The expert testimony or opinions offered on behalf of Plaintiff, including but not limited to testimony, ifany, regarding the evolution of knowledge of the effects of asbestos exposure, standards and regulations applicable to asbestos exposure, and testing done by or on behalf of Plaintiff. The asbestos exposures described by Plaintiff or his respective co-workers or other alleged exposure witnesses in this case. I. The different types of asbestos fiber, their physical and chemical composition, characteristics and uses in various products/materials as well as their potential to cause disease. The specific exposures in this case, as alleged by Plaintiff and/or other witnesses, and whether the alleged exposures created a significant risk of asbestos-related disease. J. The proper and accepted protocols for analysis of airborne samples for fiber release from asbestos-containing products/materials, the potential for various products/materials to release asbestos fibers, and the government and industry standards regarding same. K. Each of the above referenced industrial hygienists, will offer specific opinions, which may include the following: 1. The expert’s experience in the testing of asbestos-containing materials, some of which are similar in use or in composition to Abex’s friction materials, which experience partially forms the basis of his or her opinion that these 5 5 of 57 FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 materials have been, and stillare, used safely in the workplace environment and home, and they are not unreasonably dangerous, and they do not pose an occupational or household hazard. 2. These experts have been or will be provided with any product or materials exposure information and other case specific data in this case, including, but not limited to, depositions of Plaintiff and other witnesses, including the Plaintiff’s identified witnesses. In addition, in formulating their opinions, these witnesses may also review and rely upon various case specific documents produced in discovery including, but not limited to: Plaintiff’s discovery responses and any available asbestos bankruptcy trust documents. These experts will review Plaintiff’s exposures, if any, to Abex’s asbestos- containing friction materials (including certain aircraft and railroad brake linings – only some of which contained asbestos) as well as Plaintiff’s exposure to other manufacturer’s products/materials. The expert may quantify Plaintiff’s exposure, if any is alleged, to Abex’s asbestos-containing friction materials (including certain aircraft and railroad brake linings – only some of which contained asbestos) as well as exposure(s) to asbestos- containing products/materials manufactured by other companies, and provide opinions regarding the significance of each exposure. These experts may rely upon any air sampling data and literature regarding exposure to other asbestos-containing products/materials. These experts will discuss the distinction between friable and non-friable materials. The expert’s opinion is that because Abex’s asbestos-containing friction materials are resilient and blended with other agents, so that fiber release is virtually eliminated. The expert’s opinion is that foreseeable use of Abex’s asbestos-containing friction materials (including certain aircraft and railroad brake linings – only some of which contained asbestos) does not cause any occupational, bystander, or household risk. 3. These experts may discuss and quantify the amount of asbestos in the ambient air. In doing so, these experts may rely upon various ambient air testing data – both published and unpublished. These experts may express opinions that use of certain materials/products contribute to an asbestos exposure comparable to the ambient air and that use of Abex’s asbestos-containing friction materials (including certain aircraft and railroad brake linings – only some of which contained asbestos), in general, result in exposure less than the applicable time weighted average of OSHA’s permissible exposure level from its first implementation to the current time. 4. These experts may also discuss levels of exposure to a direct user of asbestos materials/products and contrast that exposure to the indirect exposure of a nonuser bystander or household member. These experts may express the opinion that a nonuser bystander has a substantially reduced exposure of at least tenfold as that of a direct user. 6 6 of 57 FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 5. These experts may provide opinions that any exposure to Abex’s asbestos- containing friction materials (including certain aircraft and railroad brake linings – only some of which contained asbestos) to which Plaintiff claims exposure, are well below the current, and all historical, permissible exposure limits, excursion and short-term limits, and fall within the warning label exemption of OSHA. 6. These experts may provide the opinion, based upon testing data and epidemiological reports and studies, that persons exposed to asbestos- containing friction materials (including those working around or with those materials, or who are present in the vicinity of persons working with or around such materials, or who come into contact with apparel of those working around or with such materials) are not considered to be at risk to the development of asbestos-related diseases. L. In formulating their opinions, these witnesses may rely upon both unpublished and published studies regarding the manufacturing, handling, installation, and removal of asbestos-containing friction materials (including aircraft and railroad brake linings) and related materials. M. These industrial hygienists may also offer the following specific opinions: 1. That the foreseeable use of asbestos-containing friction materials (including certain aircraft and railroad brake linings – only some of which contained asbestos) does not produce an appreciable risk of any asbestos-related disease. 2. That the Plaintiff’s use, installation, removal or contact, if any, with asbestos- containing friction materials, did not increase the Plaintiff’s risk of developing an asbestos-related disease. 3. That working with or around asbestos-containing friction materials (including certain aircraft and railroad brake linings – only some of which contained asbestos) does not increase an individual’s risk of developing malignant mesothelioma. The bases for such an opinion are as follows: (i) Epidemiological studies have shown that automobile repair workers have no increase in the risk of developing mesothelioma over that of the general population. (ii) Pathology studies have reviewed lung tissue samples of persons with mesothelioma claiming asbestos exposure from brake dust and those studies have found that the fiber types present and the fiber burden amount of asbestos present do not support an etiology from friction materials. 7 7 of 57 FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 (iii) Approximately 99% or more of brake dust is converted to inert mineral during the braking process. Any remaining fibers have been shown to be mostly short chrysotile fibers. (iv) Short fibers less than five micron in length are not causative, and/or do not increase the risk, of disease. (v) Occupational industrial hygiene information about exposures to dust from asbestos containing friction materials shows that installation, repair, and manipulation of these materials have traditionally been well below the permissible exposure limit in the workplace both at the current time and historically. (vi) That asbestos-containing friction materials are manufactured with chrysotile asbestos fibers. N. These witnesses may also provide testimony based on a critical review and analysis of the epidemiologic data of workers exposed to dust generated from working with brakes, brake linings and other friction materials (including certain aircraft and railroad brake linings – only some of which contained asbestos). These witnesses will testify that epidemiologic studies demonstrate that automotive or brake mechanics are not at an increased risk of developing an asbestos related diseases as a result of their work on or near brakes or other friction materials. O. As applicable, the witness’ case specific report is also incorporated herein. 1A. William Dyson, Ph.D., CIH Workplace Hygiene 420-B Gallimore Dairy Road Greensboro, NC 27409 Dr. Dyson may testify as to the various subject matters and opinions set forth in Section 1 above and that disclosure is incorporated herein. In addition, Dr. Dyson has reviewed historic documents from the Abex Medical and Industrial Hygiene departments. Based on his review of those documents, Dr. Dyson will testify concerning the activities of the Abex Medical and Industrial Hygiene departments during the times relevant to this case, which include the following: x-raying of workers and pensioners; physical examinations of employees; visits to plants; providing health- related information to employees; conferring with employees about health-related issues; loaning x- rays to employees for consultation with personal physicians; monitoring exposures of workers; monitoring of diseases and claims of diseases; publishing of articles; and consulting with others on medical and industrial hygiene issues. Dr. Dyson will express these opinions about the medical program and industrial hygiene programs of Abex at the times relevant to this case; the programs were comprehensive; the programs were properly conducted based on knowledge and information then available the programs of Abex met or exceeded accepted standards for industrial safety, industrial hygiene, and workplace safety; and the programs were conducted by qualified personnel. Dr. Dyson may also testify based on the above information and based medical and scientific literature that manufacturing facilities that produce asbestos-containing friction materials can be 8 8 of 57 FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 operated safely and that such facilities operated by Abex were operated safely. In addition, Dr. Dyson will discuss the early English experience with asbestos, including Dr. Merewether’s publications in England and the United States about asbestos exposure and occupational disease in England and will quantify the exposures in various departments of the factories that Dr. Merewether inspected and will compare those quantified exposures with exposures in U.S. plants. 1B. John L. Henshaw, MPH, CIH John Henshaw and Associates, Inc. 1101 Periwinkle Way, Suite 101 Sanibel, FL 33957 Mr. Henshaw may testify as to the various subject matters and opinions set forth in Section 1 above and that disclosure is incorporated herein. Mr. Henshaw has also reviewed documents from the Abex Medical and Industrial Hygiene Departments as it generally relates to asbestos. Based on his review of those documents, Mr. Henshaw may testify concerning the activities of the Abex Medical and Industrial Hygiene Departments, as it generally relates to asbestos, during the times relevant to this case, which include the following: x-raying of workers and pensioners; physical examinations of employees; visits to plants; providing of health-related information to employees; conferring with employees about health-related issues; loaning x-rays to employees for consultation with personal physicians; monitoring exposures of workers; monitoring of diseases and claims of diseases; publishing of articles; and consulting with others on medical and industrial hygiene issues. Mr. Henshaw may express the following opinions about the medical program and industrial hygiene programs of Abex at the times relevant to this case: the programs were comprehensive; the programs were properly conducted based on knowledge and information then available; the programs of Abex met or exceeded accepted standards for industrial safety, industrial hygiene, and workplace safety; and the programs were conducted by qualified personnel. Mr. Henshaw may also testify based on the above information and based upon the relevant asbestos medical and scientific literature that manufacturing facilities that produce asbestos-containing friction products can be operated safely and that such facilities operated by Abex were operated safely. 1C. Mary A. Finn, Ph.D., MPH, CIH Finn Consulting Services 2046 Treasure Coast Plaza, #A 300 Vero Beach, FL 32960 The testimony to be offered at trial by the above referenced Certified Industrial Hygienist may include the following: A. Occupational exposures of Plaintiff as described by Plaintiff and/or Plaintiff’s co- workers (including materials for which Abex allegedly is legally responsible) and whether such exposures could be considered as creating a scientifically significant amount of risk for the development of an asbestos-related disease. The manner in which a risk assessment properly may be performed for individuals in various trades or occupations, and a risk assessment for the Plaintiff in this case. 9 9 of 57 FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 B. The recognition, evaluation and control of health and safety hazards. The accepted standards, industrial hygiene practices and workplace safety practices during the years of Plaintiff’s employment. C. The principles of industrial hygiene and the factors that are important to industrial hygiene studies. The manner in which experts use industrial hygiene data and how the data should be interpreted in specific cases. The manner in which industrial hygiene data should be properly considered in evaluating exposures. D. The testing data (if any) used by Plaintiff’s experts and testing methods and corresponding data. The studies of Plaintiff’s experts and published studies and work performed by others in the past. The available scientific and industrial hygiene literature relating to Plaintiff’s alleged exposures. This expert may rely upon her own test data and/or data that she finds reliable, including but not limited to, any relevant site inspection(s), to express an opinion about Plaintiff’s likely exposure to asbestos, if any, from materials for which Abex allegedly is legally responsible. E. The state of the art of industrial hygiene during the times relevant to Plaintiff’s alleged exposures. F. The development and utility of methodologies identifying and measuring asbestos in air, dust and products/materials, and the process of setting threshold limit values ("TLVs"), the OSHA PELS, and other levels for asbestos exposure. This testimony will also include the historical standards and recommendations from both governmental and nongovernmental agencies concerning workplace levels of asbestos exposure. G. The relationship between scientific knowledge and the development of public policy standards relating to asbestos exposure, and all aspects of government regulation of asbestos exposure. She may further testify about the difference between scientific studies and policy statements. The development of knowledge regarding the dose- response relationship between exposure to asbestos and disease, and other related matters. H. The expert testimony or opinions offered on behalf of Plaintiff, including but not limited to testimony, ifany, regarding the evolution of knowledge of the effects of asbestos exposure, standards and regulations applicable to asbestos exposure, and testing done by or on behalf of Plaintiff. The asbestos exposures described by Plaintiff or his respective co-workers or other alleged exposure witnesses in this case. I. The different types of asbestos fiber, their physical and chemical composition, characteristics and uses in various products/materials as well as their potential to cause disease. The specific exposures in this case, as alleged by Plaintiff and/or other witnesses, and whether the alleged exposures created a significant risk of asbestos-related disease. 10 10 of 57 FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 J. The proper and accepted protocols for analysis of airborne samples for fiber release from asbestos-containing products/materials, the potential for various products/materials to release asbestos fibers, and the government and industry standards regarding same. K. The above referenced Certified Industrial Hygienist, will offer specific opinions, which may include the following: 1. The expert’s experience in the testing of asbestos-containing materials, some of which are similar in use or in composition to Abex’s friction materials, which experience partially forms the basis of her opinion that these materials have been, and still are, used safely in the workplace environment and home, and they are not unreasonably dangerous, and they do not pose an occupational or household hazard. 2. This expert has been or will be provided with any product or materials exposure information and other case specific data in this case, including, but not limited to, depositions of Plaintiff, and other witnesses, including the Plaintiff’s identified witnesses. In addition, in formulating her opinions, this witness may also review and rely upon various case specific documents produced in discovery including, but not limited to: Plaintiff’s discovery responses and any available asbestos bankruptcy trust documents. This expert will review Plaintiff’s exposures, if any, to Abex’s asbestos-containing friction materials as well as Plaintiff’s exposure to other manufacturer’s products/materials. This expert may quantify Plaintiff’s exposure, if any is alleged, to Abex’s asbestos-containing friction materials as well as exposure(s) to asbestos-containing products/materials manufactured by other companies, and provide opinions regarding the significance of each exposure. This expert may rely upon any air sampling data and literature regarding exposure to other asbestos-containing products/materials. This expert will discuss the distinction between friable and non-friable materials. The expert’s opinion is that because Abex’s asbestos-containing friction materials are resilient and blended with other agents, fiber release is virtually eliminated. The expert’s opinion is that foreseeable use of Abex’s asbestos- containing friction materials does not cause any occupational, bystander, or household risk. 3. This expert may discuss and quantify the amount of asbestos in the ambient air. In doing so, this expert may rely upon various ambient air testing data – both published and unpublished. This expert may express opinions that use of certain materials/products contribute to an asbestos exposure comparable to the ambient air and that use of Abex’s asbestos-containing friction materials, in general, result in exposure less than the applicable time weighted average of OSHA’s permissible exposure level from its first implementation to the current time. 11 11 of 57 FILED: SUFFOLK COUNTY CLERK 03/22/2022 03:17 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/22/2022 4. This expert may also discuss levels of exposure to a direct user of asbestos materials/products and contrast that exposure to the indirect exposure of a nonuser bystander or household member. This expert may