Preview
FILED: ERIE COUNTY CLERK 03/17/2023 09:06 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023
EXHIBIT 105
FILED: ERIE COUNTY CLERK 03/17/2023 09:06 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023
Page 180
1 STATE OF NEW YORK
SUPREME COURT: COUNTY OF MONROE
2
3 JESSE WOODS and :
SARAH WOODS, :INDEX NO. E2020003840
4 His Spouse, :
Plaintiffs :
5 :
vs. :
6 :
KOLMAR LABORATORIES, INC., :
7 et al., :
Defendants :
8
9 VIDEOTAPE DEPOSITION OF GARY TOMANIO
10 VOLUME II
11 Taken in the offices of Veritext
12 Legal Solutions, 5100 Tilghman Street, Suite 205,
13 Allentown, Pennsylvania, on Thursday, July 7, 2022,
14 commencing at 9:00 a.m., before Leandra M. Stoudt,
15 RPR, CBC, CRR, CCP, Notary Public and Drew Riedman,
16 Videographer.
17 APPEARANCES:
18 SIMON, GREENSTONE, PANATIER, PC
BY: BRENDAN TULLY, ESQ.
19 -- AND --
SEAN KERLEY, ESQ.
20 420 Lexington Avenue
Suite 2848
21 New York, NY 10170
212-634-1690
22 Btully@sgptrial.com
-- For The Plaintiff
23
24
25 JOB NO.: 5311967
Priority-One Court Reporting Services Inc. – A Veritext Company
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FILED: ERIE COUNTY CLERK 03/17/2023 09:06 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023
Page 181 Page 183
1 APPEARANCES: (CONTINUED) 1 IT IS HEREBY STIPULATED AND AGREED by
2 KIRKLAND & ELLIS, LLP
BY: MIKE KILGARRIFF, ESQ. 2 and between the attorneys for the respective parties
3 1301 Pennsylvania Avenue, NW 3 hereto that filing, sealing and certification of the
Washington, DC 20004 4 within Examination Before Trial be waived; that all
4 202-389-5149
Mike.Kilgarriff@kirkland.com 5 objections, except as to form, are reserved to the
5 -- For the Defendant Barretts 6 time of trial.
Minerals and Specialty Minerals
7 IT IS FURTHER STIPULATED AND AGREED
6
7 MILLER & MARTIN PLLC 8 that the transcript may be signed before any Notary
BY: LEAH GERBITZ, ESQ. 9 Public with the same force and effect as if signed
8 -- AND --
CREWS TOWNSEND, ESQ.
10 before a Clerk or Judge of the Court.
9 832 Georgia Avenue, Suite 1200 11 IT IS FURTHER STIPULATED AND AGREED
Chattanooga, TN 37402-2289 12 that the within examination may be utilized for all
10 Leah.gerbitz@millermartin.com
ctownsend@millermartin.com 13 purposes as provided by the CPLR.
11 423-785-8372 14 IT IS FURTHER STIPULATED AND AGREED
-- For the Defendant Chattem, Inc. 15 that all rights provided to all parties by the CPLR
12
13 16 shall not be deemed waived and the appropriate
14 17 sections of the CPLR shall be controlling with
15
18 respect thereto.
16
17 19 IT IS FURTHER STIPULATED AND AGREED
18 20 by and between the attorneys for the respective
19
20
21 parties hereto that a copy of this Examination shall
21 22 be furnished, without charge, to the attorney
22 23 representing the witness testifying herein.
23
24 24
25 25
Page 182 Page 184
1 INDEX TO WITNESSES 1 (It is stipulated by and between
2 WITNESSPAGE 2 counsel for the respective parties that all
3 GARY TOMAINO 3 objections except as to the form of the question
4 By Mr. Tully 185, 420 4 are reserved until the time of trial.)
5 By Mr. Kilgarriff 415 5 THE VIDEOGRAPHER: Good morning.
6 INDEX TO EXHIBITS 6 We're now on the record. Today's date is July 7th,
7 EXHIBITDESCRIPTION PAGE 7 2022, and the time is now approximately 9:14 a.m.
8 4 Letter 4/19/17 269 8 This continues the videotaped deposition of Gary
9 5 BMI WOODS 6 276 9 Tomaino, in the matter of Woods, Jessie and Sarah
10 6 Bates BMI Woods 026009-026036284 287 10 verse Asbestos Barretts Minerals.
11 7 JNJ 268037- 268045 296 11 Will counsel please identify
12 8 ISO 222620-2302 305 12 yourselves for the record.
13 9 BASF-EMCC00038 315 13 MR. TULLY: Brendan Tully, Simon,
14 10 ASTM Standard Test Method 326 14 Greenstone, Panatier, representing the plaintiffs
15 11 BMI WOODS 000001 - 000195 340 15 in this matter.
16 12 BMI WOODS 008469 - 008492 367 16 MR. KILGARRIFF: Mike Kilgarriff.
17 13 BMI WOODS 074927 - 074935 374 17 Kirkland & Ellis, on behalf of Barretts Minerals
18 14 BMI WOODS 074959 - 074964 376 18 and Specialty Minerals.
19 15 WCD Alderdice Disc Docs 005471005473 383 19 THE COURT REPORTER: Mr. Crews. Do
20 16 PFZ001162_003261 393 20 you want to introduce yourself for the record?
21 17 United States EPA Region IX 4/20/06 400 21 MR. TOWNSEND: Yes. I'm Crews
22 INDEX TO REQUESTS 22 Townsend with Miller Martin, and I represent
23 Page 190 / Line 7 23 Chattem, Inc.
24 Page 204 / Line 6 24 THE VIDEOGRAPHER: Will the court
25 MARKED QUESTION: Page 386 - Line 14 25 reporter please swear in the witness.
2 (Pages 181 - 184)
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NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023
Page 185 Page 187
1 GARY TOMAINO, having been duly 1 A. Uh-huh.
2 sworn, was examined and testified as follows: 2 Q. Declarations and testing documents.
3 *** 3 A. Correct.
4 MR. TULLY: Ready to go? 4 Q. Any other categories of documents that
5 THE WITNESS: Sure. 5 you reviewed in prep -- related to your testimony
6 *** 6 in this case?
7 EXAMINATION 7 A. No.
8 BY MR. TULLY: 8 Q. Okay. What depositions did you review
9 Q. Good morning, sir. How are you doing? 9 since our last time we talked?
10 A. All right. 10 A. It was just to provide clarification
11 Q. As you know, my name is Brendan Tully. 11 of the number of depositions versus declarations.
12 We talked a little bit last week, and we're talking 12 So we had the Booker/Klepper deposition for product
13 again today. Thanks so much for coming back. 13 liability.
14 Appreciate it. 14 And then there was one deposition that
15 A. Sure. 15 was non-related to a product. It had to do more
16 Q. So, in day one of the deposition, I 16 with building asbestos.
17 gave you some up instructions regarding, you know, 17 And then the declarations were various
18 giving verbal answers and not guessing. All -- do 18 and dealt with non -- it wasn't product liability.
19 you recall those instructions? 19 It was just dep -- declarations that needed to be
20 A. Yes. 20 presented in -- in various --
21 Q. Do you want me to give them to you 21 Q. So how many -- I'm sorry, are you
22 again? 22 done?
23 A. No. 23 A. Yes.
24 Q. Okay. All of them -- can we agree 24 Q. How many depositions did you review?
25 that all of those instructions also apply today? 25 MR. TOWNSEND: May I interrupt for
Page 186 Page 188
1 A. Yes. 1 just a minute?
2 Q. And you understand you're still under 2 THE WITNESS: Yes.
3 oath from -- as you were in the first day, correct? 3 MR. TOWNSEND: I hear the witness just
4 A. Yes. 4 fine, but -- but, Brendan, I don't hear -- I can't
5 Q. Great. 5 hear you at all.
6 So, we -- when we spoke last it was 6 MR. TULLY: Really? Okay. Can you
7 about a week ago. Since that time, have you 7 hear me now?
8 reviewed any documents in relation to your 8 MR TOWNSEND: I -- I can hear you now.
9 testimony in this deposition and case? 9 I don't know what you did.
10 A. Yes. 10 MR. TULLY: Wow, okay. I will speak
11 Q. Okay. Why don't you tell me what -- 11 louder to the dismay of everyone in the room.
12 A. Okay. 12 THE WITNESS: Right.
13 Q. I asked a little too quickly. I don't 13 MR. TULLY: And that will be fine. So
14 have my paper out. 14 everyone in the room, I'm not yelling at you.
15 A. Okay. 15 MR. TOWNSEND: Thank you.
16 Q. Okay. I am now list -- 16 MR. TULLY: Thanks for letting me
17 A. You -- okay. 17 know, Crews.
18 Q. -- ready and available. 18 MR. TOWNSEND: Thank you.
19 Tell me what documents you have 19 BY MR. TULLY:
20 reviewed. 20 Q. Could you list out the dep -- the
21 A. Depositions and declarations that 21 names of the depositions that you reviewed in the
22 needed to be provided to you. And we also reviewed 22 last week, all of them?
23 some testing documents that were black and white 23 A. Klepper, Booker and then Feldner was
24 and needed to be presented in color format. 24 the building asbestos.
25 Q. Okay. So we've got depositions. 25 Q. Okay. Last week you told me that the
3 (Pages 185 - 188)
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FILED: ERIE COUNTY CLERK 03/17/2023 09:06 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023
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1 where that potential amphibole serpentine 1 THE VIDEOGRAPHER: The time is now
2 mineralization can occur. And then we are to 2 2:43 p.m. We're off the record.
3 establish whether it's asbestiform or 3 (A break was taken.)
4 non-asbestiform. 4 THE VIDEOGRAPHER: The time is 2:54
5 Q. So folks in these Montana mines, 5 p.m. We're on the record.
6 tremolite structures have been found in Barretts 6 BY MR. TULLY:
7 Montana Talc mines, correct? 7 Q. Sir, I want to go through some of the
8 A. Repeat the question. 8 testing documents I went through, that were
9 Q. Tremolite structures have been found 9 provided and produced for things, that I just have
10 in Barretts Montana Talc mines, correct? 10 a couple extra questions on and hopefully we can
11 A. Tremolite, yes. 11 get through them quickly.
12 Q. And Barretts has classified those 12 A. Okay.
13 tremolite structures at the Montana mines as 13 Q. So I'm handing you what has been
14 cleavage fragments, right, tremolite cleavage 14 marked Plaintiff's Exhibit 12, which is the
15 fragments, correct? 15 document produced in this case Bates stamp BM WOODS
16 A. Yes. 16 -- BMI WOODS 8469 to 8492, I believe.
17 Q. And chrysotile has been found in 17 (Exhibit 12 was marked.)
18 Barretts Montana mines, correct? 18 BY MR. TULLY:
19 A. Yes. 19 Q. Have you seen this before?
20 Q. And you've testified that you can find 20 A. Just let me open it up.
21 chrysotile in the contact areas of those Montana 21 Q. Take your time.
22 mines, correct? 22 A. Yes.
23 MR. KILGARRIFF: I am going to object 23 Q. Right. Okay. This is, if you turn to
24 to this whole line of questioning. And I am happy 24 the second page, 8470?
25 to go off the record. But I don't see what topic 25 A. Correct.
Page 366 Page 368
1 that Mr. Tomanio was designated for this line of 1 Q. Analytical services report which has
2 questioning. 2 date completed 5/26/2000. Do you see that,
3 MR. TULLY: Testing. And we can -- I 3 correct?
4 was trying to cut through, but I can go through 4 A. Yes.
5 historic testing for he's been designated as the 5 Q. And on the bottom you signed it,
6 person who can testify about testing for asbestos 6 right?
7 and amphibole and chrysotile in the talc mines and 7 A. Yes.
8 the results of that, which is exactly what I'm 8 Q. You signed it 7/6/2000, correct?
9 asking about. 9 A. Yes.
10 MR. KILGARRIFF: Okay. Okay. That's 10 Q. And it tested one, two -- tested three
11 helpful background. I just -- I'm going to listen 11 samples of talc, correct?
12 carefully moving forward. But I understand. 12 A. No.
13 MR. TULLY: I'm doing everything I can 13 Q. It tested three samples?
14 to streamline things. 14 A. Suspect areas, veinlets.
15 MR. KILGARRIFF: No, I appreciate 15 Q. What is a veinlets? Briefly, I'm not
16 that. Thank you. 16 looking for mineralogic -- I want to make sure I'm
17 MR. TULLY: Okay. 17 using the right term?
18 BY MR. TULLY: 18 A. Think of a gap. And you have a
19 Q. Testing has shown that chrysotile has 19 veinlet that is filling the gap.
20 been found in the contact areas of the Barretts 20 Q. So if you go to the next, page 8471,
21 Montana mines, correct? 21 has the date of July 6th, 2000.
22 A. Yes. 22 A. Wait a minute. 84 -- oh, 71, yes.
23 MR. TULLY: Let's take a five-minute 23 Q. Literally the next page.
24 break right now, because I'm going to see if I can 24 A. Yes, yes.
25 cut out like seven or eight folders. 25 Q. Do you see it? And it's a memo from
48 (Pages 365 - 368)
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FILED: ERIE COUNTY CLERK 03/17/2023 09:06 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023
Page 421 Page 423
1 opened up for an open pit expansion, that during 1 ACKNOWLEDGMENT OF DEPONENT
2 that timeframe, any initiation or original mine 2
3 plan, blast-hole patterns, would have met the 3 I, ______________________, do hereby certify
4 criteria to establish whether we had any additional 4 that I have read the foregoing pages _____ to
5 concerns within a lower level. 5 _____ and that the same is a correct
6 transcription of the answers given by me to the
6 Q. And the XRD for the blast-hole mine
7 questions therein propounded, except for the
7 testing had a 3 -- had up to a 3 percent limit of
8 corrections or changes in form or substance, if
8 detection for serpentine, which included 9 any, noted in the attached Errata Sheet.
9 chrysotile, right? 10
10 MR. KILGARRIFF: Object to form. ________ ______________________________
11 A. If the chlorite level was high enough. 11 DATE SIGNATURE
12 MR. TULLY: Sir, thank you for your 12
13 time. I appreciate it. That's all I have. That's 13
14 it, right? All right. That concludes the 14 ________________________________________________
15 deposition. 15 Subscribed and sworn to before me this
16 THE VIDEOGRAPHER: The time is 4:28 16
17 p.m. We're off the record. 17 _____ day of __________________ of 2022.
18 My commission expires: ________________________
18 (Concluded 4:28 p.m.)
19
19
20
20
21 ______________________________
21 Notary Public
22 22
23 23
24 24
25 25
Page 422 Page 424
1 ERRATA SHEET
1 2 Priority-One/Veritext
2 CERTIFICATE 3 JOB # 5311967
4 ATTACH TO DEPO OF: GARY TOMANIO Vol. 2
3 Case: WOODS v. ASBESTOS
4 I do hereby certify that the aforesaid 5 Date of Depo: 7/7/2022
6 Instructions: Please read this copy of your
5 testimony was taken before me, pursuant to notice, deposition and make note of any errors in the
7 transcription on this page. DO NOT mark on the
6 at the time and place indicated; that said deponent transcript itself. Sign and date errata sheet
7 was by me duly sworn to tell the truth, the whole 8 Thank you.
9
8 truth, and nothing but the truth; that the PAGE LINE ERROR OR AMENDMENT
10 ______ ______ _______________________________
9 testimony of said deponent was correctly recorded ______ ______ _______________________________
10 in machine shorthand by me and thereafter 11 ______ ______ _______________________________
______ ______ _______________________________
11 transcribed under my supervision with 12 ______ ______ _______________________________
12 computer-aided transcription; that the deposition ______ ______ _______________________________
13 ______ ______ _______________________________
13 is a true and correct record of the testimony given ______ ______ _______________________________
14 ______ ______ _______________________________
14 by the witness; and that I am neither of counsel ______ ______ _______________________________
15 nor kin to any party in said action, nor interested 15 ______ ______ _______________________________
______ ______ _______________________________
16 in the outcome thereof. 16 ______ ______ _______________________________
______ ______ _______________________________
<%488,Signature%> 17 ______ ______ _______________________________
17 ___________________________ ______ ______ _______________________________
18 ______ ______ _______________________________
Leandra Stoudt, RPR, CRR ______ ______ _______________________________
18 CBC, CCP, Notary Public 19 ______ ______ _______________________________
______ ______ _______________________________
19 20 ______ ______ _______________________________
______ ______ _______________________________
20 21 ______ ______ _______________________________
21 ______ ______ _______________________________
22 ______ ______ _______________________________
22 ______ ______ _______________________________
23 ______ ______ _______________________________
23 ______ ______ _______________________________
24 24
Date ________ ________________________
25 25
62 (Pages 421 - 424)
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Preview
FILED: ERIE COUNTY CLERK 03/17/2023 09:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023 EXHIBIT 105 FILED: ERIE COUNTY CLERK 03/17/2023 09:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023 Page 180 1 STATE OF NEW YORK SUPREME COURT: COUNTY OF MONROE 2 3 JESSE WOODS and : SARAH WOODS, :INDEX NO. E2020003840 4 His Spouse, : Plaintiffs : 5 : vs. : 6 : KOLMAR LABORATORIES, INC., : 7 et al., : Defendants : 8 9 VIDEOTAPE DEPOSITION OF GARY TOMANIO 10 VOLUME II 11 Taken in the offices of Veritext 12 Legal Solutions, 5100 Tilghman Street, Suite 205, 13 Allentown, Pennsylvania, on Thursday, July 7, 2022, 14 commencing at 9:00 a.m., before Leandra M. Stoudt, 15 RPR, CBC, CRR, CCP, Notary Public and Drew Riedman, 16 Videographer. 17 APPEARANCES: 18 SIMON, GREENSTONE, PANATIER, PC BY: BRENDAN TULLY, ESQ. 19 -- AND -- SEAN KERLEY, ESQ. 20 420 Lexington Avenue Suite 2848 21 New York, NY 10170 212-634-1690 22 Btully@sgptrial.com -- For The Plaintiff 23 24 25 JOB NO.: 5311967 Priority-One Court Reporting Services Inc. – A Veritext Company 718-983-1234 FILED: ERIE COUNTY CLERK 03/17/2023 09:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023 Page 181 Page 183 1 APPEARANCES: (CONTINUED) 1 IT IS HEREBY STIPULATED AND AGREED by 2 KIRKLAND & ELLIS, LLP BY: MIKE KILGARRIFF, ESQ. 2 and between the attorneys for the respective parties 3 1301 Pennsylvania Avenue, NW 3 hereto that filing, sealing and certification of the Washington, DC 20004 4 within Examination Before Trial be waived; that all 4 202-389-5149 Mike.Kilgarriff@kirkland.com 5 objections, except as to form, are reserved to the 5 -- For the Defendant Barretts 6 time of trial. Minerals and Specialty Minerals 7 IT IS FURTHER STIPULATED AND AGREED 6 7 MILLER & MARTIN PLLC 8 that the transcript may be signed before any Notary BY: LEAH GERBITZ, ESQ. 9 Public with the same force and effect as if signed 8 -- AND -- CREWS TOWNSEND, ESQ. 10 before a Clerk or Judge of the Court. 9 832 Georgia Avenue, Suite 1200 11 IT IS FURTHER STIPULATED AND AGREED Chattanooga, TN 37402-2289 12 that the within examination may be utilized for all 10 Leah.gerbitz@millermartin.com ctownsend@millermartin.com 13 purposes as provided by the CPLR. 11 423-785-8372 14 IT IS FURTHER STIPULATED AND AGREED -- For the Defendant Chattem, Inc. 15 that all rights provided to all parties by the CPLR 12 13 16 shall not be deemed waived and the appropriate 14 17 sections of the CPLR shall be controlling with 15 18 respect thereto. 16 17 19 IT IS FURTHER STIPULATED AND AGREED 18 20 by and between the attorneys for the respective 19 20 21 parties hereto that a copy of this Examination shall 21 22 be furnished, without charge, to the attorney 22 23 representing the witness testifying herein. 23 24 24 25 25 Page 182 Page 184 1 INDEX TO WITNESSES 1 (It is stipulated by and between 2 WITNESSPAGE 2 counsel for the respective parties that all 3 GARY TOMAINO 3 objections except as to the form of the question 4 By Mr. Tully 185, 420 4 are reserved until the time of trial.) 5 By Mr. Kilgarriff 415 5 THE VIDEOGRAPHER: Good morning. 6 INDEX TO EXHIBITS 6 We're now on the record. Today's date is July 7th, 7 EXHIBITDESCRIPTION PAGE 7 2022, and the time is now approximately 9:14 a.m. 8 4 Letter 4/19/17 269 8 This continues the videotaped deposition of Gary 9 5 BMI WOODS 6 276 9 Tomaino, in the matter of Woods, Jessie and Sarah 10 6 Bates BMI Woods 026009-026036284 287 10 verse Asbestos Barretts Minerals. 11 7 JNJ 268037- 268045 296 11 Will counsel please identify 12 8 ISO 222620-2302 305 12 yourselves for the record. 13 9 BASF-EMCC00038 315 13 MR. TULLY: Brendan Tully, Simon, 14 10 ASTM Standard Test Method 326 14 Greenstone, Panatier, representing the plaintiffs 15 11 BMI WOODS 000001 - 000195 340 15 in this matter. 16 12 BMI WOODS 008469 - 008492 367 16 MR. KILGARRIFF: Mike Kilgarriff. 17 13 BMI WOODS 074927 - 074935 374 17 Kirkland & Ellis, on behalf of Barretts Minerals 18 14 BMI WOODS 074959 - 074964 376 18 and Specialty Minerals. 19 15 WCD Alderdice Disc Docs 005471005473 383 19 THE COURT REPORTER: Mr. Crews. Do 20 16 PFZ001162_003261 393 20 you want to introduce yourself for the record? 21 17 United States EPA Region IX 4/20/06 400 21 MR. TOWNSEND: Yes. I'm Crews 22 INDEX TO REQUESTS 22 Townsend with Miller Martin, and I represent 23 Page 190 / Line 7 23 Chattem, Inc. 24 Page 204 / Line 6 24 THE VIDEOGRAPHER: Will the court 25 MARKED QUESTION: Page 386 - Line 14 25 reporter please swear in the witness. 2 (Pages 181 - 184) Priority-One Court Reporting Services Inc. – A Veritext Company 718-983-1234 FILED: ERIE COUNTY CLERK 03/17/2023 09:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023 Page 185 Page 187 1 GARY TOMAINO, having been duly 1 A. Uh-huh. 2 sworn, was examined and testified as follows: 2 Q. Declarations and testing documents. 3 *** 3 A. Correct. 4 MR. TULLY: Ready to go? 4 Q. Any other categories of documents that 5 THE WITNESS: Sure. 5 you reviewed in prep -- related to your testimony 6 *** 6 in this case? 7 EXAMINATION 7 A. No. 8 BY MR. TULLY: 8 Q. Okay. What depositions did you review 9 Q. Good morning, sir. How are you doing? 9 since our last time we talked? 10 A. All right. 10 A. It was just to provide clarification 11 Q. As you know, my name is Brendan Tully. 11 of the number of depositions versus declarations. 12 We talked a little bit last week, and we're talking 12 So we had the Booker/Klepper deposition for product 13 again today. Thanks so much for coming back. 13 liability. 14 Appreciate it. 14 And then there was one deposition that 15 A. Sure. 15 was non-related to a product. It had to do more 16 Q. So, in day one of the deposition, I 16 with building asbestos. 17 gave you some up instructions regarding, you know, 17 And then the declarations were various 18 giving verbal answers and not guessing. All -- do 18 and dealt with non -- it wasn't product liability. 19 you recall those instructions? 19 It was just dep -- declarations that needed to be 20 A. Yes. 20 presented in -- in various -- 21 Q. Do you want me to give them to you 21 Q. So how many -- I'm sorry, are you 22 again? 22 done? 23 A. No. 23 A. Yes. 24 Q. Okay. All of them -- can we agree 24 Q. How many depositions did you review? 25 that all of those instructions also apply today? 25 MR. TOWNSEND: May I interrupt for Page 186 Page 188 1 A. Yes. 1 just a minute? 2 Q. And you understand you're still under 2 THE WITNESS: Yes. 3 oath from -- as you were in the first day, correct? 3 MR. TOWNSEND: I hear the witness just 4 A. Yes. 4 fine, but -- but, Brendan, I don't hear -- I can't 5 Q. Great. 5 hear you at all. 6 So, we -- when we spoke last it was 6 MR. TULLY: Really? Okay. Can you 7 about a week ago. Since that time, have you 7 hear me now? 8 reviewed any documents in relation to your 8 MR TOWNSEND: I -- I can hear you now. 9 testimony in this deposition and case? 9 I don't know what you did. 10 A. Yes. 10 MR. TULLY: Wow, okay. I will speak 11 Q. Okay. Why don't you tell me what -- 11 louder to the dismay of everyone in the room. 12 A. Okay. 12 THE WITNESS: Right. 13 Q. I asked a little too quickly. I don't 13 MR. TULLY: And that will be fine. So 14 have my paper out. 14 everyone in the room, I'm not yelling at you. 15 A. Okay. 15 MR. TOWNSEND: Thank you. 16 Q. Okay. I am now list -- 16 MR. TULLY: Thanks for letting me 17 A. You -- okay. 17 know, Crews. 18 Q. -- ready and available. 18 MR. TOWNSEND: Thank you. 19 Tell me what documents you have 19 BY MR. TULLY: 20 reviewed. 20 Q. Could you list out the dep -- the 21 A. Depositions and declarations that 21 names of the depositions that you reviewed in the 22 needed to be provided to you. And we also reviewed 22 last week, all of them? 23 some testing documents that were black and white 23 A. Klepper, Booker and then Feldner was 24 and needed to be presented in color format. 24 the building asbestos. 25 Q. Okay. So we've got depositions. 25 Q. Okay. Last week you told me that the 3 (Pages 185 - 188) Priority-One Court Reporting Services Inc. – A Veritext Company 718-983-1234 FILED: ERIE COUNTY CLERK 03/17/2023 09:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023 Page 365 Page 367 1 where that potential amphibole serpentine 1 THE VIDEOGRAPHER: The time is now 2 mineralization can occur. And then we are to 2 2:43 p.m. We're off the record. 3 establish whether it's asbestiform or 3 (A break was taken.) 4 non-asbestiform. 4 THE VIDEOGRAPHER: The time is 2:54 5 Q. So folks in these Montana mines, 5 p.m. We're on the record. 6 tremolite structures have been found in Barretts 6 BY MR. TULLY: 7 Montana Talc mines, correct? 7 Q. Sir, I want to go through some of the 8 A. Repeat the question. 8 testing documents I went through, that were 9 Q. Tremolite structures have been found 9 provided and produced for things, that I just have 10 in Barretts Montana Talc mines, correct? 10 a couple extra questions on and hopefully we can 11 A. Tremolite, yes. 11 get through them quickly. 12 Q. And Barretts has classified those 12 A. Okay. 13 tremolite structures at the Montana mines as 13 Q. So I'm handing you what has been 14 cleavage fragments, right, tremolite cleavage 14 marked Plaintiff's Exhibit 12, which is the 15 fragments, correct? 15 document produced in this case Bates stamp BM WOODS 16 A. Yes. 16 -- BMI WOODS 8469 to 8492, I believe. 17 Q. And chrysotile has been found in 17 (Exhibit 12 was marked.) 18 Barretts Montana mines, correct? 18 BY MR. TULLY: 19 A. Yes. 19 Q. Have you seen this before? 20 Q. And you've testified that you can find 20 A. Just let me open it up. 21 chrysotile in the contact areas of those Montana 21 Q. Take your time. 22 mines, correct? 22 A. Yes. 23 MR. KILGARRIFF: I am going to object 23 Q. Right. Okay. This is, if you turn to 24 to this whole line of questioning. And I am happy 24 the second page, 8470? 25 to go off the record. But I don't see what topic 25 A. Correct. Page 366 Page 368 1 that Mr. Tomanio was designated for this line of 1 Q. Analytical services report which has 2 questioning. 2 date completed 5/26/2000. Do you see that, 3 MR. TULLY: Testing. And we can -- I 3 correct? 4 was trying to cut through, but I can go through 4 A. Yes. 5 historic testing for he's been designated as the 5 Q. And on the bottom you signed it, 6 person who can testify about testing for asbestos 6 right? 7 and amphibole and chrysotile in the talc mines and 7 A. Yes. 8 the results of that, which is exactly what I'm 8 Q. You signed it 7/6/2000, correct? 9 asking about. 9 A. Yes. 10 MR. KILGARRIFF: Okay. Okay. That's 10 Q. And it tested one, two -- tested three 11 helpful background. I just -- I'm going to listen 11 samples of talc, correct? 12 carefully moving forward. But I understand. 12 A. No. 13 MR. TULLY: I'm doing everything I can 13 Q. It tested three samples? 14 to streamline things. 14 A. Suspect areas, veinlets. 15 MR. KILGARRIFF: No, I appreciate 15 Q. What is a veinlets? Briefly, I'm not 16 that. Thank you. 16 looking for mineralogic -- I want to make sure I'm 17 MR. TULLY: Okay. 17 using the right term? 18 BY MR. TULLY: 18 A. Think of a gap. And you have a 19 Q. Testing has shown that chrysotile has 19 veinlet that is filling the gap. 20 been found in the contact areas of the Barretts 20 Q. So if you go to the next, page 8471, 21 Montana mines, correct? 21 has the date of July 6th, 2000. 22 A. Yes. 22 A. Wait a minute. 84 -- oh, 71, yes. 23 MR. TULLY: Let's take a five-minute 23 Q. Literally the next page. 24 break right now, because I'm going to see if I can 24 A. Yes, yes. 25 cut out like seven or eight folders. 25 Q. Do you see it? And it's a memo from 48 (Pages 365 - 368) Priority-One Court Reporting Services Inc. – A Veritext Company 718-983-1234 FILED: ERIE COUNTY CLERK 03/17/2023 09:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 03/17/2023 Page 421 Page 423 1 opened up for an open pit expansion, that during 1 ACKNOWLEDGMENT OF DEPONENT 2 that timeframe, any initiation or original mine 2 3 plan, blast-hole patterns, would have met the 3 I, ______________________, do hereby certify 4 criteria to establish whether we had any additional 4 that I have read the foregoing pages _____ to 5 concerns within a lower level. 5 _____ and that the same is a correct 6 transcription of the answers given by me to the 6 Q. And the XRD for the blast-hole mine 7 questions therein propounded, except for the 7 testing had a 3 -- had up to a 3 percent limit of 8 corrections or changes in form or substance, if 8 detection for serpentine, which included 9 any, noted in the attached Errata Sheet. 9 chrysotile, right? 10 10 MR. KILGARRIFF: Object to form. ________ ______________________________ 11 A. If the chlorite level was high enough. 11 DATE SIGNATURE 12 MR. TULLY: Sir, thank you for your 12 13 time. I appreciate it. That's all I have. That's 13 14 it, right? All right. That concludes the 14 ________________________________________________ 15 deposition. 15 Subscribed and sworn to before me this 16 THE VIDEOGRAPHER: The time is 4:28 16 17 p.m. We're off the record. 17 _____ day of __________________ of 2022. 18 My commission expires: ________________________ 18 (Concluded 4:28 p.m.) 19 19 20 20 21 ______________________________ 21 Notary Public 22 22 23 23 24 24 25 25 Page 422 Page 424 1 ERRATA SHEET 1 2 Priority-One/Veritext 2 CERTIFICATE 3 JOB # 5311967 4 ATTACH TO DEPO OF: GARY TOMANIO Vol. 2 3 Case: WOODS v. ASBESTOS 4 I do hereby certify that the aforesaid 5 Date of Depo: 7/7/2022 6 Instructions: Please read this copy of your 5 testimony was taken before me, pursuant to notice, deposition and make note of any errors in the 7 transcription on this page. DO NOT mark on the 6 at the time and place indicated; that said deponent transcript itself. Sign and date errata sheet 7 was by me duly sworn to tell the truth, the whole 8 Thank you. 9 8 truth, and nothing but the truth; that the PAGE LINE ERROR OR AMENDMENT 10 ______ ______ _______________________________ 9 testimony of said deponent was correctly recorded ______ ______ _______________________________ 10 in machine shorthand by me and thereafter 11 ______ ______ _______________________________ ______ ______ _______________________________ 11 transcribed under my supervision with 12 ______ ______ _______________________________ 12 computer-aided transcription; that the deposition ______ ______ _______________________________ 13 ______ ______ _______________________________ 13 is a true and correct record of the testimony given ______ ______ _______________________________ 14 ______ ______ _______________________________ 14 by the witness; and that I am neither of counsel ______ ______ _______________________________ 15 nor kin to any party in said action, nor interested 15 ______ ______ _______________________________ ______ ______ _______________________________ 16 in the outcome thereof. 16 ______ ______ _______________________________ ______ ______ _______________________________ <%488,Signature%> 17 ______ ______ _______________________________ 17 ___________________________ ______ ______ _______________________________ 18 ______ ______ _______________________________ Leandra Stoudt, RPR, CRR ______ ______ _______________________________ 18 CBC, CCP, Notary Public 19 ______ ______ _______________________________ ______ ______ _______________________________ 19 20 ______ ______ _______________________________ ______ ______ _______________________________ 20 21 ______ ______ _______________________________ 21 ______ ______ _______________________________ 22 ______ ______ _______________________________ 22 ______ ______ _______________________________ 23 ______ ______ _______________________________ 23 ______ ______ _______________________________ 24 24 Date ________ ________________________ 25 25 62 (Pages 421 - 424) Priority-One Court Reporting Services Inc. – A Veritext Company 718-983-1234