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CAUSE NO. 2018-56144
BEFORE THE SILICA MDL COURT
STANLEY COLE § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. §
§
CLEMCO INDUSTRIES §
CORPORATION f/k/a CLEMCO § HARRISCOUNTY, TEXAS
SERVICES CORP.; EMPIRE ABRASIVE §
EQUIPMENT COMPANY, L.P.; §
THE QUIKRETE COMPANIES, LLC; §
SPECIALTY SAND COMPANY; §
3M COMPANY, AS SUCCESSOR BY §
MERGER TO MINNESOTA MINING §
& MANUFACTURING COMPANY §
AND/OR ITS PREDECESSORS/ §
SUCCESSORS IN INTEREST; §
d EXXON MOBIL CORPORATION §
§
Defendants. § 333 JUDICIAL DISTRICT
Transferred from
CAUSE NO. A-0201969
STANLEY COLE § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. §
§
CLEMCO INDUSTRIES §
CORPORATION f/k/a CLEMCO § JEFFERSON COUNTY, TEXAS
SERVICES CORP.; EMPIRE ABRASIVE §
EQUIPMENT COMPANY, L.P.; §
THE QUIKRETE COMPANIES, LLC; §
SPECIALTY SAND COMPANY; §
3M COMPANY, AS SUCCESSOR BY §
MERGER TO MINNESOTA MINING §
& MANUFACTURING COMPANY §
AND/OR ITS PREDECESSORS/
SUCCESSORS IN INTEREST;
and EXXON MOBIL CORPORATION
Defendants. JUDICIAL DISTRICT
LAINTIFF EXPERT DESIGNATION
COME NOW Plaintiff Stanley Cole, in the above entitled and numbered cause of
action, and file this Designation of Expert Witnesses.
The Custodians of Records for any doctors and/or health care providers who administered
any medical treatment toStanley Cole
Re: Stanley Cole medical records and bills.
Physicians, Employees, and/or
Custodian(s) of Medical and Billing Record and/or
Steven E. Haber, M.D. Pulmono ist
Respiratory Medicine Consultants
9225 Katy Freeway, Suite 404
Houston, TX 77024
Physicians, Employees, and/or
Custodian(s) of Medical and Billing Reco
Baptist Hospital of Southeast Texas
3080 College St.
Beaumont, TX 77701
Physicians, Employees, and/or
Custodian(s) of Medical and Billing Record and/or
Rodolfo Sotolongo, M.D. Cardiologist
Southeast Texas Cardiology
North St.
Beaumont, TX 77702
Physicians, Employees, and/or
Custodian(s) of Medical and Billing Record and/or
HaroldBencowitz, M.D. Pulmonologist
oug Wilco ulmonologist
Southeast Texas Pulmonary Associates
3030 North Street, Suite 510
Beaumont, TX 77702
Physicians, Employees, and/or
Custodian(s) of Medical and Billing Record and/or
Kevin M. Harmon, M.D. Opthamol ogy
Eye Centers of Southeast Texas
3345 Plaza 10 Drive, Suite B
Beaumont, TX 77707
Physicians, Employees, and/or
Custodian(s) of Medical and Billing Reco
Ann Nowic Trexler Radiologist
Memorial Hermann Memorial City Imaging Services
925 Gessner
Houston, TX 77
Physicians, Employees, and/or
todian(s) of Medical and Billing Record and/or
Howard Wilcox, M.D.and/or
Angela Rori, NPPrimary Care
Preventative Medicine of Southeast Texas(CPG Preventive)
5875 N. Major Drive
Beaumont, TX 77713
Physicians, Employees, and/or
Cus odian(s) of Medical and Billing Record
Baylor St. Lukes Hospital (Lung Transplant Program)
Gloria Wai Chung
6720 Bertner Ave.
Houston, TX 77030
Physicians, Employees, and/or
Custodian(s) of Medical and Billing Record
James Wolff Radio gist
Ramon Garcia Radiol ogist
ephNight ngale Radiologist
James E. Dimaala Radiologist
Outpatient Diagnostic Center
3405 College Street
Beaumont, TX 77701
Physicians, Employees, and/or
Custodian(s) of Medical and Billing Reco
Christus St. Elizabeth
2830 Calder Ave.
Beaumont, TX 77702
Physicians, Employees, and/or
Custodian(s) of Medical and Billing Record
Memorial Hermann Kingwood
4533 Kingwood Dr., Level 1, Suite 200
Kingwood, TX 77345
n addition, please refer to any and all discovery responses by Plaintiff and any
supplements thereto.
Dr. S even Haber
Respiratory Medicine Consultants
9225 Katy Freeway, Suite 404
Houston, Texas 77024
This expert will testify as to all matters included in Mr. Cole medical reports and
records. He will testify as to his treatment and care for the Plaintiff, the basis for his
diagnosis and the progression of his illness.
is expert will testify that Mr. Cole has complicated silicosis with progressive massive
fibrosis and that silica du t was a subst ntial contributing factor to causing his medical
condition based upon the standard of reasonable medical probability. This expert will
testify that tobacco plays no role in Mr. Cole ulmonary condition because he is a life
long non oker.
This expert will testify regarding the nature and cause of silicosis/pneumoconiosis. He
will testify that silicosis/pneumoconiosis is caused from inhalation of silica dust with an
appropriate latency period. his expert ll explain that silicosis pneumoconiosis can
cause both restrictive and obstructive impairment and will further explain that silica
causes scarring in the lungs that reduces pulmonary capacity. This expert will testify that
licosis can be associated with a number of complications including bronchitis, cancer,
rheumatoid arthritis, lupus, tuberculosis and that because the immune system of the lung
is compromised, other bacterial infections, including pneumonia. This expert ll testify
as toMr. Cole guard ed prognosis due to the severity of his lung condition.
This will testify on the impact of silicosis on the body in its advanced stage resulting in
pulmonary hypertension and leading to cor pulmonale. This witness may offer testimony
he presence of mixed dust pneumoconiosis and the effect of inhaling silica dust as
well as other dust encountered in a dusty trade such as that of the Plaintiff. This witness
may offer testimony on the distinguishing characteristics of silicosis and/or
umoconiosis radiographically after review and analysis of chest x rays and/or CT
scans. This witness may offer opinions relating to any pathology reports, slides and or
tissue available for examination. This witness may offer opinions relating to the need for
Mr. Cole to obtain a lung transplant and the probability that this will be required in the
future. This physician referred Mr. Cole to the lung transplant program.
Dr. Jerrold Abraham
State University of New York HSC
Department of Pathology
766 Irving Avenue
Syracuse, NY 13210
(315) 464
This expert will testify regarding the pathology of occupational lung diseases, including
the pathologic feature of occupational lung disease, analytic methods for identifying a
qualifying mineral particles in lung tissue and diagnosis of occupational lung disease by
pathology. Dr. Abraham may have reviewed pathology evidence in this case, if available,
and will fer testimony regarding the pathological diagnosis in this case, including the
esence of disease due to the existence of mineral compounds, metal and related
compounds, and/or other dust or fibrous materials whichmay cause occupational disease.
This expert will testify regarding the nature and cause of silicosis/pneumoconiosis. H
will testify that silicosis/pneumoconiosis is caused from inhalation of silica dust with an
appropriate latency period. his expert will explain that silicosis pneumoconiosis can
cause both restrictive and obstructive impairment and will further explain that silica
causes scarring in the lungs that reduces pulmonary capacity. This expert will testify that
silicosis can be associated with a number of complications including bronchitis, cancer,
rheumatoid arthritis, lupus, tuberculosis a that because the immune system of the lung
is compromised, other bacterial infections, including pneumonia.
This will testify on the impact of silicosis on the body in its advanced stage resulting in
pulmonary hypertension and leading to cor pulmonale. This witness may offer testimony
on the presence of mixed dust pneumoconiosis and the effect of inhaling silica dust as
well as other dust encountered in a dusty trade such as that of the Plaintiff. This witness
may offer testimony on the distinguishing characteristics of silicosis and/or
pneumoconiosis radiographically after review and analysis of chest x rays and/or CT
scans.
Frank Parker
Caliche Ltd.
200 Brantley Lane
P. O. Box 210
Magnolia, Texas 77355
(281) 356
his witness will offer testimony on the historical aspects of silicosis both
nationally and internationally from an industrial hygiene point of view. He may offer
testimony on the history of silicosis as an occupational hazard and the history of exposure
limits associated with this toxic substance.
This witness may also offer testimony on the applicability of other governmental
regulations (includi , but not limited to, OSHA regulations, 29 C.F.R. §§94; 134; 1000),
the new silica standard 9 C.F.R. 1910.1053 and industry standards such as standards
published by the National Institute for Occupational Safety and Health American
National Standards Institute, ANSI Z88 the Steel Structures Painting Counsel, the
National Association of Corrosion Engineers and the National Safety Counsel The
witness will offer the opinion that the 1974 NIOSH recommendation that silica
containing more than 1% free silica should not be used in sandblasting. This
recommendation was similar to earlier recommendations of trade associations and safety
standard groups. This witness may also review literature published on the performance of
cert in respiratory protective devices and may also offer testimony on the testing of
respiratory protective devices by the Los Alamos National Scientific Laboratory. In light
of the forgoing, this witness may also offer testimony on the state of the art of r spiratory
protective devices, the inadequacy of certain respiratory protective devices in protecting
the Plaintiff and the causal relationship between inhalation of silica and the use of certain
respiratory protective devices.
He may of fer testimony relating to the adequacy and effectiveness of various
respiratory devices used by Plaintiff in his work career. In that regard, this witness may
offer testimony relating to the filtering efficiency of various respiratory devices;
additionally this witness may offer opinions relating to the adequacy of a face piece to
face fit with regard to the respiratory protection offered. This witness may offer
testimony on the qualitative and quantitative testing of respiratory protective devices and
e results of such testing as it relates to the effectiveness and performance of certain
respiratory protectivedevices.
More specifically, this witness will testify, based upon reasonable scientific certainty, that
it was difficult, if not impossible, to obtain a daily qualitative fit check on the 3M 8710
espirator as explained by the American National Standards Institute Z.88 standard for
respiratory practices. Furthermore, the 8M 8710 was unable to provide an adequate face
piece to face seal causing leakage around the edges of the mask. The reasons for this
inadequate face seal are based on the material which the mask was made (i.e. full
facepiece paper type filter) and the inability of the respirator to meet breathing resistance
requirements. This expert will explain that NIOSH had expressed concern to 3M because
its own independent testing revealed the 8710 could not meet the breathing resistance
requirements.
is witness may testify on the nature of government certification regulations under 30
C.F.R. Part 11 and the applicability of those regulations to this case. In that regard, this
tness may also offer testimony on the applicability of other governmental regulations
and industry standards such as standards published by the American National Standards
Institute. This witness may also review literature published on the performance of certain
respiratory protective devices and may also offer testimony on the testing of respiratory
protective devices by the Los Alamos National Scientific Laboratory. In light of the
forgoing, this witness may also offer testimony on the state of the art of respiratory
protective devices, the inadequacy of certain respiratory protective devices in protectin
the Plaintiff and the causal relationship between inhalation of silica and the use of certain
respiratory protective devices.
This witness may also offer testimony on the applicability of other governmental
regulations (including , but not limited to, OSHA regulations, 29 C.F.R. §§ 94;
134; 1000), as ll as the new silica dust standard which was first noticed for
administrative review at 66 Fed. Reg. 25727 and finally promulgated at 1 Fed Reg.
and industry standards such as standards published by the American National
Standards Institute, ANSI Z88.2 NSI 9.4 (safe practices for abrasive blasting
operations (1968); the National Asociation of Corrosion Engineers Technical Practices
and the Steel Structures Painting Counsel Training Materials This witness may also
review literature published on the performance of certain respiratory protective devices
and may also offer testimony on the testing of respiratory protective devices by the Los
Alamos National Scientific Laboratory. In light of the forgoing, this witness may also
offer testimony on the state of the art of respiratory protective devices, the inadequacy of
certain respiratory protective devices in protecting the Plaintiff and the causal
relationship between inhalation of silica and the use of certain respiratory protective
devices.
is witness may also testify on inadequacy and ineffectiveness of certain
warnings or instructions that may or may not have been accompanied with various
respiratory protective device and abrasive blasting equipment. This witness may testif
as to the inadequacy of warnings that should have beenconveyed not only to the Plaintiff,
to the Plaintiff’s employer as well. This witness may also offer testimony on the
inadequacy of such warnings and instructions and the causal relationship between these
inadequate or ineffective warnings and the Plaintiff’s inhalation of silica.
This expert may also offer testimony on the inadequacy of certain respiratory
protective equipment including air fed hoods such as the Clemco Apollo Hood or the ED
Bullard air fed hood. This expert may offer testimony that these hoods failed to warn
users that the hoods could not provide adequate protection from silica dust in
sandblasting because the hazard is so extreme that there is no positive air fed hood
capable f providing protection.
This expert may also offer testimony on the inadequacy of information and
instructions associated with sandblasting application equipment and abrasive blasting
material containin more than 1% free silica. This expert will offer the opinion that such
devices and products should have included a warning declaringthe following Do not use
silica sand in ab sive blasting. This expert will testify that this information should have
en included on abrasive blasting material packaging and blasting machines and
equipment at least by 19 when the ANSI standard on the subject was published, if not
earlier.
Please refer the affidavit previously filed with the Court in multiple cases and attached
hereto as a general reference report. Mr. Frank Parker will rely upon the following
information previously produced.
Plaintiff s deposition
worker Depositions
29 C.F.R.
ANSI Z88.2
ANSI Z88.2 1969
ANSI Z88.2 Ad Hoc Subcommitte
ANSI Z535.4 (2002) warnings
Bloomfield Sand and Metallic Abrasive Blasting as an Industrial Health Hazard
Journal of Industrial Hygiene,, p. 184 (1933)
British Factories Actof 1949, Referenced in 1992 CDC Alert
Evaluation of Alternative Abrasive
NIOSH CEL (sup) 1977
NIOSH CEL 1980
NIOSH CEL 1
NIOSH CEL 1990
NIOSH CEL 1993
NIOSH Criteria forA Recommended St andard Crystalline Silica
NIOSH Hazard Review Silic
NIOSH Health Effects of Crystalline Silica
NIOSH Respiratory Protecti Employer
NIOSH CEL (sup) 1975
OSHA ANSI incorporation
National Safety News, Target Health HazarSilica (1973)
ANSI Z88.2 (1969), Practices forRespiratory Protection
ANSI Z88.2 (1980),Practice s for Respiratory Protection
ACGIH TLV standards 1
NIOSH Respirator Decision Logic
NIOSH Guide to Industrial Respiratory Protection
NIOSH Certified Equipment Lists 1972
OSH Employers Guide to Respiratory Protection (1
NIOSH EmployeesGuide to Respiratory Protection (19
Coulton, et al, merican Industrial Hygiene Assoc. Journal ffect of Ialation
esistance on Face Piece Leakage (2000)
ANSI Z88.2 1980Practices for Respiratory Protection
ANSI Z88.2 1969Practices for Respiratory Protection
ANSI Z88.2 19, Practices for Respi ratory Protection
ANSI Z88.2 Ad Hoc Subcommittee
ANSI Z535.4 (2002) warn ings
ANSI Z9.4 (1968) & (1997)
Federal Register 30 CFR Part 11 (1972)
LASL 1973 Quarterly Progress Report
LASL 1974 Progress Report Final
LASL Development of Respirator Aersol (1972
LASL Progress Report 1974 (Jan Apr)
LASL Quarterly Progress Report (1972
LASL Quarterly Report 1976
LASL Raw Data Protection Factors
LASL Silica Dust Test Description 1976
Silica Dust Test for Respiratory Protective Devices, NIOSH (July 1977)
Lowry, et al, “Performance of Single Use Respirators,” American Industrial Hygiene
Assoc. Journal, V. 38, p. 462 (1977)
Respiratory Protective Devices Manual AIHA 1963
Respiratory ProtectionHandbook en & Revoir 1997).
Respiratory Protective Devices Guide (
ACGI TLV standards 1969
NIOSH Respirator Decision Logic
NIOSH Guide to Industrial Respiratory Protection
NIOSH Certified Equipment Lists 1972
NIOSH Employers Guide to Respiratory Protection (1975)
NIOSH Employees Guide to Respiratory Protection (1975)
Los Alamos Scientific Laboratory Study (LASL) Report 5620
Degradation of Resin Wool Filter Respirators LASL (1973)
LASL Quarterly and Final Reports, Protection Factors (1976)Department of Labor,
Wallis, “Workplace Field Testing of Disposable Negative Pressure Half Mask Dust
Respirator” American Indusrial Hygien Association Journal, V. 54, p. 576 (1993)
OSHA 9/5/86 Correspondence White to Nash
OSHA 5/15/86 Correspondence Brock to Nash
OSHA /23/87 Correspondence Bien to Wilmes
3M 12/22/87 Correspondence Wilmes to Leidel
3M Statement of Position, 3M before NIOSH hearing 1/28/88
Letter by Ed Hyattto M. Corn 2/27/86
Final Report of Workplace Testing as a Condition of Certification Ettinger (1991)
NIOSH 11/16/93 Correspondence Metzler to Bi
Hyatt, “Degradation of Resin Wool Filters” Presentation, 1973 American Industrial
Hygiene Conference
Revoir, “Air Purifying Group,” ANSI Z 88 ad hoc Subcommittee for Respirator Test and
Approval
NIOSH,Respiratory Protective Devices, Final Rule 60 FR 30 404 (1995)
OSHA, Occupational Exposure to Lead: Respirator Fit Testing 47 FR 51110 (1982)
OSHA, Final Rule, Respiratory Protection 29 C.F.R. 1910.134 (1998); 63 CFR 1270
NIOSH Correspondence, Metzler to Wilmes 4
NIOSH Pre rulemaking Technical Conference on the Assessment of Performance Levels
for Industrial Respirators (1991)
Han, D. “Correlation Between Workplace Protection Factors and Fit Factors for Filtering
Facepieces in the Welding Workplace,” Industrial Health, V. 40, p. 328 (2002)
NIOSH, Citerial for a Recommended Standard, Occupational Exposure to Respirable
Coal Mine Dust, DHHS NIOSH Publication 95 106 (1995).
Mines Safety Health Administration: Lowering Miners Exposure to Respirable Coa
Mine Dust, Proposed Rule76 FR 12648 (2011)
ternational Agency for Research on Cancer (IARC), V.68, Silica, some silicate, coal
dust (1997)
NIOSH Control Technology for Removing Lead Based Paint from Steel Structures at
BP Oil (July 1993) report No: ECTB 183
CDC Alert, Preventing Silicosis and eaths from Sanblasting , NIOSH (August 1992)
Evaluation of Alternative Abrasives, NIOSH, (KTA Tator Inc.) Ma rch 1999
amimi (Dissertation) Silica Dust in Sandblasting Operation, (1973)
Ziskind, et al, Silicosis in Shipyard Sandblasters 11 Environmental Research 237 243
(1976)
Parker, F. Respirator Fit Testin for H1N1 Flue Protection Journal of Chemical Health
& Safety, (April 2011)
Evaluation of espiratory Protective Practices During Abrasive Blasting, Final Report
Submitted to Pulmosan Safety Equipment Corp. by Tulane University School of
Medicine
Rosner & Markowitz, Deadly Dust
Coffey, et al, Fitting Characteristics of Eighteen N95 Filtering Facepiece R spirators,
Journal of Occupational and Environmental giene p. 262 (April 2004)
NIOSH Respirator Decision Logic (1987)
NIOSH Respiratory Decision Logic(2004)
NIOSH Recommended guidelines for Personal Respiratory Protection of Workers in
Health Care Facilitites (1992) No. 17
Meyers, W., Silica Dust TestNIOSH (1977)
OSHA, Final Rule on Assigned Protection Factors, 71 Fed Reg. 50123 (August 24,
2006).
Mr. Robert H. Schutz (By depositio Nancy Bollinger (By Deposition)
1375 Anderson Avenue
Morgantown, WV 26505
(304) 599
Robert Schutz was Division Branch Manager of the Respiratory Certification Laboratory
at the National Institute for Occupational Safety and Health (NIOSH) from 1972
He was also a long time manager at the United States Bureau of Mines, the predecessor
agency to NIOSH He may offer both fact and expert opinions relating to the operation of
the laboratory and the operation of laboratory testing equipment, including the silica dust
machine. He may offer opinions relating to the silica dust test and its application in the
certification and approval process for respirators, specifically as itrelates to 30 C.F.R
part 11. More specifically, he may offer opinions on the quality control requirements of
respirators which were certified and approved by NIOSH. He may also offer opinions on
the silica dust filter penetration requirements by NIOSH under 30 CFR part 11. He may
also offer testimony on the breathing inhalation and exhalation resistance requirements of
CFR part 11 by NIOSH and the purpose of that regulation. He may offer explanation
as to why the breathing inhalation and exhalation resistance values were lower for single
use respirators and that respirator manufacturers were required to comply with these
breathing inhalation and exhalation resistance limits prescribed by regulation. He may
offer opinions on the withdrawal of approval of the 3M 8710 had he been informed by
3M 8710 officials that high percentages of masks sold did not comply with the breathing
inhalation and exhalation resistance values of the 3M 8710. He may offer opinions on
the withdrawal of approval by NIOSH of the 3M 8710 if 3M did not change the band
material used on the 3M 8710. He may testify as to the results of certain failures of tests
performed on the 3M 8710 mask and others while being tested at the NIOSH laboratory.
He may also testify on the instruction given to manufacturers to modify the parameters of
the humidity range in the silica dust machine to comply with the standards applied by
NIOSH at itsilica dus chine located in Morgantown, West Virginia. He may also
testify as to the failure of the 3M 8710 to comply with off the shelf testing of this mask
by NIOSH officials. Mr. Schutz may also testify on the history of certain respiratory
approval regulations, including regulations were the predecessor regulations to 30 CFR
rt 11, under the jurisdiction ofthe Bureau of Mines. He may also offer testimony on the
incorporation of ANSI standards (American National Standards Institute) into NIOSH
regulations.
Mr. Schutz has already been deposed and the offer of his opinions may be found in a
deposition taken in Weitzel et al v. 3M, In the 214 Judicial District of Nueces County
Texas. Mr. Larry King, 3M’s lead counsel in this case was present at this deposition and
participated heavily in the cross examination of this witness.
Furthermore, Mr. Schutz may testify on the procedures followed by NIOSH in the
certification and approval of respirators. He may also testify on the respirator
performance problems created when a respirator fails to meet either the silica penetration
quirements of the regulation or the pressure drop requirements of the regulation. He
may testify that had he been informed by 3M that large numbers of 3M 8710 could not
comply with the federal approval regulations he would have decertified the respirator.
Mr. Schutz will also testify as to the importance of pressure drop in the NIOSH
regulations and that increasing pressure drop will cause leakage. Mr. Schutz’s opinions
and testimony are already included in the above mentioned deposition which 3M attende
and a copy of this deposition is in 3M’s possession.
Mr. Ching Tsen Bien
LAO Consulting Inc.
West Queens Ct
Crofton, Maryland 21115
(410)
Mr. Bien was formerly with the Occupational Safety and Health Administration and
served on the ANSI standards committee for respiratory protection and had specific
oversight responsibilities in the field of respirators and respiratory protection. Mr. Bien
received his masters in industrial hygiene and chemical engineering. Mr. Bien has co
authored a primary text titled Respiratory Protection ased upon Mr. Bien’s education
and experience, Mr. Bien may provide expert testimony in the areas of regulatory
compliance, respirator performance and design, filter performance and filter leakage.
his witness ll offer testimony on the historical aspects of silicosis both
nationally and internationally from an industrial hygiene point of view. He may offer
testimony on the history of silicosis as an occupational hazard and the history of exposure
limits associated with this toxic substance.
This witness may also offer testimony on the applicability of other governmental
regulations (includi , but not limited to, OSHA regulations, 29 C.F.R. §§94; 134; 1000),
the new silica standard 9 C.F.R. 1910.1053 and industry standards such as standards
published by the National Institute for Occupational Safety and Health American
National Standards Institute, ANSI Z88 the Steel Structures Painting Counsel, the
National Association of Corrosion Engineers and the National Safety Counsel The
witness will offer the opinion that the 1974 NIOSH recommendation that silica
containing more than 1% free silica should not be used in sandblasting. This
recommendation was similar to earlier recommendations of trade associations and safety
standard groups. This witness may also review literature published on the performance of
cert in respiratory protective devices and may also offer testimony on the testing of
respiratory protective devices by the Los Alamos National Scientific Laboratory. In light
of the forgoing, this witness may also offer testimony on the state of the art of r spiratory
protective devices, the inadequacy of certain respiratory protective devices in protecting
the Plaintiff and the causal relationship between inhalation of silica and the use of certain
respiratory protective devices.
This witness may testify on the nature of government certification regulations under 30
C.F.R. Part 11 and the applicability of those regulations to this case. In that regard, this
tness may also offer testimony on the applicability of other governmental regulations
and industry standards such as standards published by the American National Standards
stitute. This witness may also review literature published on the performance of certain
respiratory protective devices and may also offer testimony on the testing of respiratory
protective devices by the Los Alamos National Scientific Laboratory. In light of the
forgoing, this witness may also offer testimony on the state of the art of respiratory
protective devices, the inadequacy of certain respiratory protective devices in protecting
the Plaintiff and the causal relationship between inhalation of silica and the use of certain
respiratory protective devices.
This witness may also offer testimony he applicability of other governmental
regulations (including , but not limited to, OSHA regulations, 29 C.F.R. 94;
134; 1000), as well as the new silica dust standard which was first noticed for
administrative r view at 66 Fed. Reg. 7 and finally promulgated at 1 Fed Reg.
and industry standards such as standards published by the American National
Standards Institute, ANSI Z88.2 ANSI 9.4 (safe practices for abrasive blasting
operations (1968); the National Asociation of Corrosion Engineers Technical Practices
and the Steel Structures Painting Counsel Training Materials his witness may also
review literature published on the performance of certain respiratory protective devices
and may also offer testimony on the testing of respiratory protective devices by the Los
Alamos National Scientific Laboratory. In light of the forgoing, this witness may also
offer testimony on the state of the art of respiratory protective devices, the inadequacy of
certain respiratory protective devices in protecting the Plaintiff and the causal
relationship between inhalation of silica and the use of certain respiratory protective
devices.
This witness may also testify on inadequacy and ineffectiveness of certain warnings or
instructions that may or may not have been accompanied with various respiratory
protective devices. This witness may tes y as to the inadequacy of warnings that should
have been conveyed not only to the Plaintiff, but to the Plaintiff’s employer as well. This
witness may also offer testimony on the inadequacy of such warnings and instructions
and the causal relationship between these inadequate or ineffective warnings and the
Plaintiff’s inhalation of silica.
In this regard, Mr. Bien may offer testimony that the 3M 8710 iled to meet the Federal
regulatory approval and certification requirements of 30 CFR part 11. Specifically, Mr
Bien may offer testimony that 3M 8710s failed the silica penetrations requirements and
the breathing resistance requirements as prescribed by 30 CFR § 11.1405 and 30 CFR
9. Conse quently, 3M sold the 3M 8710 in violation of its quality control plan
and quality control regulations enumerated in 30 CFR § 11.41 et seq. By selling the 3M
8710 in violation of its quality control plan and violation of federal approval
regulations, 3M committed fraud by representing that the 3M 8710 was a NIOSH
approved respirator, when it was not.
Mr. Bien may also offer testimony that the failure of 3M to comply with NIOSH approva
regulations causes e 3M 8710 to leak resulting in Plaintiff’s inhalation of silica dust.
Mr. Bien may testify that breathing resistance violations, also known as pressure drop,
increased the leakage of the mask around the face seal. Mr. Bien may also testify that
silica netration violations as reflected by 3M’s own testing data of the 8710 reveal that
there was leakage of silica through the filter. This witness may offer testimony relating to
the filtering efficiency
Preview
CAUSE NO. 2018-56144 BEFORE THE SILICA MDL COURT STANLEY COLE § IN THE DISTRICT COURT OF § Plaintiff, § § v. § § CLEMCO INDUSTRIES § CORPORATION f/k/a CLEMCO § HARRISCOUNTY, TEXAS SERVICES CORP.; EMPIRE ABRASIVE § EQUIPMENT COMPANY, L.P.; § THE QUIKRETE COMPANIES, LLC; § SPECIALTY SAND COMPANY; § 3M COMPANY, AS SUCCESSOR BY § MERGER TO MINNESOTA MINING § & MANUFACTURING COMPANY § AND/OR ITS PREDECESSORS/ § SUCCESSORS IN INTEREST; § d EXXON MOBIL CORPORATION § § Defendants. § 333 JUDICIAL DISTRICT Transferred from CAUSE NO. A-0201969 STANLEY COLE § IN THE DISTRICT COURT OF § Plaintiff, § § v. § § CLEMCO INDUSTRIES § CORPORATION f/k/a CLEMCO § JEFFERSON COUNTY, TEXAS SERVICES CORP.; EMPIRE ABRASIVE § EQUIPMENT COMPANY, L.P.; § THE QUIKRETE COMPANIES, LLC; § SPECIALTY SAND COMPANY; § 3M COMPANY, AS SUCCESSOR BY § MERGER TO MINNESOTA MINING § & MANUFACTURING COMPANY § AND/OR ITS PREDECESSORS/ SUCCESSORS IN INTEREST; and EXXON MOBIL CORPORATION Defendants. JUDICIAL DISTRICT LAINTIFF EXPERT DESIGNATION COME NOW Plaintiff Stanley Cole, in the above entitled and numbered cause of action, and file this Designation of Expert Witnesses. The Custodians of Records for any doctors and/or health care providers who administered any medical treatment toStanley Cole Re: Stanley Cole medical records and bills. Physicians, Employees, and/or Custodian(s) of Medical and Billing Record and/or Steven E. Haber, M.D. Pulmono ist Respiratory Medicine Consultants 9225 Katy Freeway, Suite 404 Houston, TX 77024 Physicians, Employees, and/or Custodian(s) of Medical and Billing Reco Baptist Hospital of Southeast Texas 3080 College St. Beaumont, TX 77701 Physicians, Employees, and/or Custodian(s) of Medical and Billing Record and/or Rodolfo Sotolongo, M.D. Cardiologist Southeast Texas Cardiology North St. Beaumont, TX 77702 Physicians, Employees, and/or Custodian(s) of Medical and Billing Record and/or HaroldBencowitz, M.D. Pulmonologist oug Wilco ulmonologist Southeast Texas Pulmonary Associates 3030 North Street, Suite 510 Beaumont, TX 77702 Physicians, Employees, and/or Custodian(s) of Medical and Billing Record and/or Kevin M. Harmon, M.D. Opthamol ogy Eye Centers of Southeast Texas 3345 Plaza 10 Drive, Suite B Beaumont, TX 77707 Physicians, Employees, and/or Custodian(s) of Medical and Billing Reco Ann Nowic Trexler Radiologist Memorial Hermann Memorial City Imaging Services 925 Gessner Houston, TX 77 Physicians, Employees, and/or todian(s) of Medical and Billing Record and/or Howard Wilcox, M.D.and/or Angela Rori, NPPrimary Care Preventative Medicine of Southeast Texas(CPG Preventive) 5875 N. Major Drive Beaumont, TX 77713 Physicians, Employees, and/or Cus odian(s) of Medical and Billing Record Baylor St. Lukes Hospital (Lung Transplant Program) Gloria Wai Chung 6720 Bertner Ave. Houston, TX 77030 Physicians, Employees, and/or Custodian(s) of Medical and Billing Record James Wolff Radio gist Ramon Garcia Radiol ogist ephNight ngale Radiologist James E. Dimaala Radiologist Outpatient Diagnostic Center 3405 College Street Beaumont, TX 77701 Physicians, Employees, and/or Custodian(s) of Medical and Billing Reco Christus St. Elizabeth 2830 Calder Ave. Beaumont, TX 77702 Physicians, Employees, and/or Custodian(s) of Medical and Billing Record Memorial Hermann Kingwood 4533 Kingwood Dr., Level 1, Suite 200 Kingwood, TX 77345 n addition, please refer to any and all discovery responses by Plaintiff and any supplements thereto. Dr. S even Haber Respiratory Medicine Consultants 9225 Katy Freeway, Suite 404 Houston, Texas 77024 This expert will testify as to all matters included in Mr. Cole medical reports and records. He will testify as to his treatment and care for the Plaintiff, the basis for his diagnosis and the progression of his illness. is expert will testify that Mr. Cole has complicated silicosis with progressive massive fibrosis and that silica du t was a subst ntial contributing factor to causing his medical condition based upon the standard of reasonable medical probability. This expert will testify that tobacco plays no role in Mr. Cole ulmonary condition because he is a life long non oker. This expert will testify regarding the nature and cause of silicosis/pneumoconiosis. He will testify that silicosis/pneumoconiosis is caused from inhalation of silica dust with an appropriate latency period. his expert ll explain that silicosis pneumoconiosis can cause both restrictive and obstructive impairment and will further explain that silica causes scarring in the lungs that reduces pulmonary capacity. This expert will testify that licosis can be associated with a number of complications including bronchitis, cancer, rheumatoid arthritis, lupus, tuberculosis and that because the immune system of the lung is compromised, other bacterial infections, including pneumonia. This expert ll testify as toMr. Cole guard ed prognosis due to the severity of his lung condition. This will testify on the impact of silicosis on the body in its advanced stage resulting in pulmonary hypertension and leading to cor pulmonale. This witness may offer testimony he presence of mixed dust pneumoconiosis and the effect of inhaling silica dust as well as other dust encountered in a dusty trade such as that of the Plaintiff. This witness may offer testimony on the distinguishing characteristics of silicosis and/or umoconiosis radiographically after review and analysis of chest x rays and/or CT scans. This witness may offer opinions relating to any pathology reports, slides and or tissue available for examination. This witness may offer opinions relating to the need for Mr. Cole to obtain a lung transplant and the probability that this will be required in the future. This physician referred Mr. Cole to the lung transplant program. Dr. Jerrold Abraham State University of New York HSC Department of Pathology 766 Irving Avenue Syracuse, NY 13210 (315) 464 This expert will testify regarding the pathology of occupational lung diseases, including the pathologic feature of occupational lung disease, analytic methods for identifying a qualifying mineral particles in lung tissue and diagnosis of occupational lung disease by pathology. Dr. Abraham may have reviewed pathology evidence in this case, if available, and will fer testimony regarding the pathological diagnosis in this case, including the esence of disease due to the existence of mineral compounds, metal and related compounds, and/or other dust or fibrous materials whichmay cause occupational disease. This expert will testify regarding the nature and cause of silicosis/pneumoconiosis. H will testify that silicosis/pneumoconiosis is caused from inhalation of silica dust with an appropriate latency period. his expert will explain that silicosis pneumoconiosis can cause both restrictive and obstructive impairment and will further explain that silica causes scarring in the lungs that reduces pulmonary capacity. This expert will testify that silicosis can be associated with a number of complications including bronchitis, cancer, rheumatoid arthritis, lupus, tuberculosis a that because the immune system of the lung is compromised, other bacterial infections, including pneumonia. This will testify on the impact of silicosis on the body in its advanced stage resulting in pulmonary hypertension and leading to cor pulmonale. This witness may offer testimony on the presence of mixed dust pneumoconiosis and the effect of inhaling silica dust as well as other dust encountered in a dusty trade such as that of the Plaintiff. This witness may offer testimony on the distinguishing characteristics of silicosis and/or pneumoconiosis radiographically after review and analysis of chest x rays and/or CT scans. Frank Parker Caliche Ltd. 200 Brantley Lane P. O. Box 210 Magnolia, Texas 77355 (281) 356 his witness will offer testimony on the historical aspects of silicosis both nationally and internationally from an industrial hygiene point of view. He may offer testimony on the history of silicosis as an occupational hazard and the history of exposure limits associated with this toxic substance. This witness may also offer testimony on the applicability of other governmental regulations (includi , but not limited to, OSHA regulations, 29 C.F.R. §§94; 134; 1000), the new silica standard 9 C.F.R. 1910.1053 and industry standards such as standards published by the National Institute for Occupational Safety and Health American National Standards Institute, ANSI Z88 the Steel Structures Painting Counsel, the National Association of Corrosion Engineers and the National Safety Counsel The witness will offer the opinion that the 1974 NIOSH recommendation that silica containing more than 1% free silica should not be used in sandblasting. This recommendation was similar to earlier recommendations of trade associations and safety standard groups. This witness may also review literature published on the performance of cert in respiratory protective devices and may also offer testimony on the testing of respiratory protective devices by the Los Alamos National Scientific Laboratory. In light of the forgoing, this witness may also offer testimony on the state of the art of r spiratory protective devices, the inadequacy of certain respiratory protective devices in protecting the Plaintiff and the causal relationship between inhalation of silica and the use of certain respiratory protective devices. He may of fer testimony relating to the adequacy and effectiveness of various respiratory devices used by Plaintiff in his work career. In that regard, this witness may offer testimony relating to the filtering efficiency of various respiratory devices; additionally this witness may offer opinions relating to the adequacy of a face piece to face fit with regard to the respiratory protection offered. This witness may offer testimony on the qualitative and quantitative testing of respiratory protective devices and e results of such testing as it relates to the effectiveness and performance of certain respiratory protectivedevices. More specifically, this witness will testify, based upon reasonable scientific certainty, that it was difficult, if not impossible, to obtain a daily qualitative fit check on the 3M 8710 espirator as explained by the American National Standards Institute Z.88 standard for respiratory practices. Furthermore, the 8M 8710 was unable to provide an adequate face piece to face seal causing leakage around the edges of the mask. The reasons for this inadequate face seal are based on the material which the mask was made (i.e. full facepiece paper type filter) and the inability of the respirator to meet breathing resistance requirements. This expert will explain that NIOSH had expressed concern to 3M because its own independent testing revealed the 8710 could not meet the breathing resistance requirements. is witness may testify on the nature of government certification regulations under 30 C.F.R. Part 11 and the applicability of those regulations to this case. In that regard, this tness may also offer testimony on the applicability of other governmental regulations and industry standards such as standards published by the American National Standards Institute. This witness may also review literature published on the performance of certain respiratory protective devices and may also offer testimony on the testing of respiratory protective devices by the Los Alamos National Scientific Laboratory. In light of the forgoing, this witness may also offer testimony on the state of the art of respiratory protective devices, the inadequacy of certain respiratory protective devices in protectin the Plaintiff and the causal relationship between inhalation of silica and the use of certain respiratory protective devices. This witness may also offer testimony on the applicability of other governmental regulations (including , but not limited to, OSHA regulations, 29 C.F.R. §§ 94; 134; 1000), as ll as the new silica dust standard which was first noticed for administrative review at 66 Fed. Reg. 25727 and finally promulgated at 1 Fed Reg. and industry standards such as standards published by the American National Standards Institute, ANSI Z88.2 NSI 9.4 (safe practices for abrasive blasting operations (1968); the National Asociation of Corrosion Engineers Technical Practices and the Steel Structures Painting Counsel Training Materials This witness may also review literature published on the performance of certain respiratory protective devices and may also offer testimony on the testing of respiratory protective devices by the Los Alamos National Scientific Laboratory. In light of the forgoing, this witness may also offer testimony on the state of the art of respiratory protective devices, the inadequacy of certain respiratory protective devices in protecting the Plaintiff and the causal relationship between inhalation of silica and the use of certain respiratory protective devices. is witness may also testify on inadequacy and ineffectiveness of certain warnings or instructions that may or may not have been accompanied with various respiratory protective device and abrasive blasting equipment. This witness may testif as to the inadequacy of warnings that should have beenconveyed not only to the Plaintiff, to the Plaintiff’s employer as well. This witness may also offer testimony on the inadequacy of such warnings and instructions and the causal relationship between these inadequate or ineffective warnings and the Plaintiff’s inhalation of silica. This expert may also offer testimony on the inadequacy of certain respiratory protective equipment including air fed hoods such as the Clemco Apollo Hood or the ED Bullard air fed hood. This expert may offer testimony that these hoods failed to warn users that the hoods could not provide adequate protection from silica dust in sandblasting because the hazard is so extreme that there is no positive air fed hood capable f providing protection. This expert may also offer testimony on the inadequacy of information and instructions associated with sandblasting application equipment and abrasive blasting material containin more than 1% free silica. This expert will offer the opinion that such devices and products should have included a warning declaringthe following Do not use silica sand in ab sive blasting. This expert will testify that this information should have en included on abrasive blasting material packaging and blasting machines and equipment at least by 19 when the ANSI standard on the subject was published, if not earlier. Please refer the affidavit previously filed with the Court in multiple cases and attached hereto as a general reference report. Mr. Frank Parker will rely upon the following information previously produced. Plaintiff s deposition worker Depositions 29 C.F.R. ANSI Z88.2 ANSI Z88.2 1969 ANSI Z88.2 Ad Hoc Subcommitte ANSI Z535.4 (2002) warnings Bloomfield Sand and Metallic Abrasive Blasting as an Industrial Health Hazard Journal of Industrial Hygiene,, p. 184 (1933) British Factories Actof 1949, Referenced in 1992 CDC Alert Evaluation of Alternative Abrasive NIOSH CEL (sup) 1977 NIOSH CEL 1980 NIOSH CEL 1 NIOSH CEL 1990 NIOSH CEL 1993 NIOSH Criteria forA Recommended St andard Crystalline Silica NIOSH Hazard Review Silic NIOSH Health Effects of Crystalline Silica NIOSH Respiratory Protecti Employer NIOSH CEL (sup) 1975 OSHA ANSI incorporation National Safety News, Target Health HazarSilica (1973) ANSI Z88.2 (1969), Practices forRespiratory Protection ANSI Z88.2 (1980),Practice s for Respiratory Protection ACGIH TLV standards 1 NIOSH Respirator Decision Logic NIOSH Guide to Industrial Respiratory Protection NIOSH Certified Equipment Lists 1972 OSH Employers Guide to Respiratory Protection (1 NIOSH EmployeesGuide to Respiratory Protection (19 Coulton, et al, merican Industrial Hygiene Assoc. Journal ffect of Ialation esistance on Face Piece Leakage (2000) ANSI Z88.2 1980Practices for Respiratory Protection ANSI Z88.2 1969Practices for Respiratory Protection ANSI Z88.2 19, Practices for Respi ratory Protection ANSI Z88.2 Ad Hoc Subcommittee ANSI Z535.4 (2002) warn ings ANSI Z9.4 (1968) & (1997) Federal Register 30 CFR Part 11 (1972) LASL 1973 Quarterly Progress Report LASL 1974 Progress Report Final LASL Development of Respirator Aersol (1972 LASL Progress Report 1974 (Jan Apr) LASL Quarterly Progress Report (1972 LASL Quarterly Report 1976 LASL Raw Data Protection Factors LASL Silica Dust Test Description 1976 Silica Dust Test for Respiratory Protective Devices, NIOSH (July 1977) Lowry, et al, “Performance of Single Use Respirators,” American Industrial Hygiene Assoc. Journal, V. 38, p. 462 (1977) Respiratory Protective Devices Manual AIHA 1963 Respiratory ProtectionHandbook en & Revoir 1997). Respiratory Protective Devices Guide ( ACGI TLV standards 1969 NIOSH Respirator Decision Logic NIOSH Guide to Industrial Respiratory Protection NIOSH Certified Equipment Lists 1972 NIOSH Employers Guide to Respiratory Protection (1975) NIOSH Employees Guide to Respiratory Protection (1975) Los Alamos Scientific Laboratory Study (LASL) Report 5620 Degradation of Resin Wool Filter Respirators LASL (1973) LASL Quarterly and Final Reports, Protection Factors (1976)Department of Labor, Wallis, “Workplace Field Testing of Disposable Negative Pressure Half Mask Dust Respirator” American Indusrial Hygien Association Journal, V. 54, p. 576 (1993) OSHA 9/5/86 Correspondence White to Nash OSHA 5/15/86 Correspondence Brock to Nash OSHA /23/87 Correspondence Bien to Wilmes 3M 12/22/87 Correspondence Wilmes to Leidel 3M Statement of Position, 3M before NIOSH hearing 1/28/88 Letter by Ed Hyattto M. Corn 2/27/86 Final Report of Workplace Testing as a Condition of Certification Ettinger (1991) NIOSH 11/16/93 Correspondence Metzler to Bi Hyatt, “Degradation of Resin Wool Filters” Presentation, 1973 American Industrial Hygiene Conference Revoir, “Air Purifying Group,” ANSI Z 88 ad hoc Subcommittee for Respirator Test and Approval NIOSH,Respiratory Protective Devices, Final Rule 60 FR 30 404 (1995) OSHA, Occupational Exposure to Lead: Respirator Fit Testing 47 FR 51110 (1982) OSHA, Final Rule, Respiratory Protection 29 C.F.R. 1910.134 (1998); 63 CFR 1270 NIOSH Correspondence, Metzler to Wilmes 4 NIOSH Pre rulemaking Technical Conference on the Assessment of Performance Levels for Industrial Respirators (1991) Han, D. “Correlation Between Workplace Protection Factors and Fit Factors for Filtering Facepieces in the Welding Workplace,” Industrial Health, V. 40, p. 328 (2002) NIOSH, Citerial for a Recommended Standard, Occupational Exposure to Respirable Coal Mine Dust, DHHS NIOSH Publication 95 106 (1995). Mines Safety Health Administration: Lowering Miners Exposure to Respirable Coa Mine Dust, Proposed Rule76 FR 12648 (2011) ternational Agency for Research on Cancer (IARC), V.68, Silica, some silicate, coal dust (1997) NIOSH Control Technology for Removing Lead Based Paint from Steel Structures at BP Oil (July 1993) report No: ECTB 183 CDC Alert, Preventing Silicosis and eaths from Sanblasting , NIOSH (August 1992) Evaluation of Alternative Abrasives, NIOSH, (KTA Tator Inc.) Ma rch 1999 amimi (Dissertation) Silica Dust in Sandblasting Operation, (1973) Ziskind, et al, Silicosis in Shipyard Sandblasters 11 Environmental Research 237 243 (1976) Parker, F. Respirator Fit Testin for H1N1 Flue Protection Journal of Chemical Health & Safety, (April 2011) Evaluation of espiratory Protective Practices During Abrasive Blasting, Final Report Submitted to Pulmosan Safety Equipment Corp. by Tulane University School of Medicine Rosner & Markowitz, Deadly Dust Coffey, et al, Fitting Characteristics of Eighteen N95 Filtering Facepiece R spirators, Journal of Occupational and Environmental giene p. 262 (April 2004) NIOSH Respirator Decision Logic (1987) NIOSH Respiratory Decision Logic(2004) NIOSH Recommended guidelines for Personal Respiratory Protection of Workers in Health Care Facilitites (1992) No. 17 Meyers, W., Silica Dust TestNIOSH (1977) OSHA, Final Rule on Assigned Protection Factors, 71 Fed Reg. 50123 (August 24, 2006). Mr. Robert H. Schutz (By depositio Nancy Bollinger (By Deposition) 1375 Anderson Avenue Morgantown, WV 26505 (304) 599 Robert Schutz was Division Branch Manager of the Respiratory Certification Laboratory at the National Institute for Occupational Safety and Health (NIOSH) from 1972 He was also a long time manager at the United States Bureau of Mines, the predecessor agency to NIOSH He may offer both fact and expert opinions relating to the operation of the laboratory and the operation of laboratory testing equipment, including the silica dust machine. He may offer opinions relating to the silica dust test and its application in the certification and approval process for respirators, specifically as itrelates to 30 C.F.R part 11. More specifically, he may offer opinions on the quality control requirements of respirators which were certified and approved by NIOSH. He may also offer opinions on the silica dust filter penetration requirements by NIOSH under 30 CFR part 11. He may also offer testimony on the breathing inhalation and exhalation resistance requirements of CFR part 11 by NIOSH and the purpose of that regulation. He may offer explanation as to why the breathing inhalation and exhalation resistance values were lower for single use respirators and that respirator manufacturers were required to comply with these breathing inhalation and exhalation resistance limits prescribed by regulation. He may offer opinions on the withdrawal of approval of the 3M 8710 had he been informed by 3M 8710 officials that high percentages of masks sold did not comply with the breathing inhalation and exhalation resistance values of the 3M 8710. He may offer opinions on the withdrawal of approval by NIOSH of the 3M 8710 if 3M did not change the band material used on the 3M 8710. He may testify as to the results of certain failures of tests performed on the 3M 8710 mask and others while being tested at the NIOSH laboratory. He may also testify on the instruction given to manufacturers to modify the parameters of the humidity range in the silica dust machine to comply with the standards applied by NIOSH at itsilica dus chine located in Morgantown, West Virginia. He may also testify as to the failure of the 3M 8710 to comply with off the shelf testing of this mask by NIOSH officials. Mr. Schutz may also testify on the history of certain respiratory approval regulations, including regulations were the predecessor regulations to 30 CFR rt 11, under the jurisdiction ofthe Bureau of Mines. He may also offer testimony on the incorporation of ANSI standards (American National Standards Institute) into NIOSH regulations. Mr. Schutz has already been deposed and the offer of his opinions may be found in a deposition taken in Weitzel et al v. 3M, In the 214 Judicial District of Nueces County Texas. Mr. Larry King, 3M’s lead counsel in this case was present at this deposition and participated heavily in the cross examination of this witness. Furthermore, Mr. Schutz may testify on the procedures followed by NIOSH in the certification and approval of respirators. He may also testify on the respirator performance problems created when a respirator fails to meet either the silica penetration quirements of the regulation or the pressure drop requirements of the regulation. He may testify that had he been informed by 3M that large numbers of 3M 8710 could not comply with the federal approval regulations he would have decertified the respirator. Mr. Schutz will also testify as to the importance of pressure drop in the NIOSH regulations and that increasing pressure drop will cause leakage. Mr. Schutz’s opinions and testimony are already included in the above mentioned deposition which 3M attende and a copy of this deposition is in 3M’s possession. Mr. Ching Tsen Bien LAO Consulting Inc. West Queens Ct Crofton, Maryland 21115 (410) Mr. Bien was formerly with the Occupational Safety and Health Administration and served on the ANSI standards committee for respiratory protection and had specific oversight responsibilities in the field of respirators and respiratory protection. Mr. Bien received his masters in industrial hygiene and chemical engineering. Mr. Bien has co authored a primary text titled Respiratory Protection ased upon Mr. Bien’s education and experience, Mr. Bien may provide expert testimony in the areas of regulatory compliance, respirator performance and design, filter performance and filter leakage. his witness ll offer testimony on the historical aspects of silicosis both nationally and internationally from an industrial hygiene point of view. He may offer testimony on the history of silicosis as an occupational hazard and the history of exposure limits associated with this toxic substance. This witness may also offer testimony on the applicability of other governmental regulations (includi , but not limited to, OSHA regulations, 29 C.F.R. §§94; 134; 1000), the new silica standard 9 C.F.R. 1910.1053 and industry standards such as standards published by the National Institute for Occupational Safety and Health American National Standards Institute, ANSI Z88 the Steel Structures Painting Counsel, the National Association of Corrosion Engineers and the National Safety Counsel The witness will offer the opinion that the 1974 NIOSH recommendation that silica containing more than 1% free silica should not be used in sandblasting. This recommendation was similar to earlier recommendations of trade associations and safety standard groups. This witness may also review literature published on the performance of cert in respiratory protective devices and may also offer testimony on the testing of respiratory protective devices by the Los Alamos National Scientific Laboratory. In light of the forgoing, this witness may also offer testimony on the state of the art of r spiratory protective devices, the inadequacy of certain respiratory protective devices in protecting the Plaintiff and the causal relationship between inhalation of silica and the use of certain respiratory protective devices. This witness may testify on the nature of government certification regulations under 30 C.F.R. Part 11 and the applicability of those regulations to this case. In that regard, this tness may also offer testimony on the applicability of other governmental regulations and industry standards such as standards published by the American National Standards stitute. This witness may also review literature published on the performance of certain respiratory protective devices and may also offer testimony on the testing of respiratory protective devices by the Los Alamos National Scientific Laboratory. In light of the forgoing, this witness may also offer testimony on the state of the art of respiratory protective devices, the inadequacy of certain respiratory protective devices in protecting the Plaintiff and the causal relationship between inhalation of silica and the use of certain respiratory protective devices. This witness may also offer testimony he applicability of other governmental regulations (including , but not limited to, OSHA regulations, 29 C.F.R. 94; 134; 1000), as well as the new silica dust standard which was first noticed for administrative r view at 66 Fed. Reg. 7 and finally promulgated at 1 Fed Reg. and industry standards such as standards published by the American National Standards Institute, ANSI Z88.2 ANSI 9.4 (safe practices for abrasive blasting operations (1968); the National Asociation of Corrosion Engineers Technical Practices and the Steel Structures Painting Counsel Training Materials his witness may also review literature published on the performance of certain respiratory protective devices and may also offer testimony on the testing of respiratory protective devices by the Los Alamos National Scientific Laboratory. In light of the forgoing, this witness may also offer testimony on the state of the art of respiratory protective devices, the inadequacy of certain respiratory protective devices in protecting the Plaintiff and the causal relationship between inhalation of silica and the use of certain respiratory protective devices. This witness may also testify on inadequacy and ineffectiveness of certain warnings or instructions that may or may not have been accompanied with various respiratory protective devices. This witness may tes y as to the inadequacy of warnings that should have been conveyed not only to the Plaintiff, but to the Plaintiff’s employer as well. This witness may also offer testimony on the inadequacy of such warnings and instructions and the causal relationship between these inadequate or ineffective warnings and the Plaintiff’s inhalation of silica. In this regard, Mr. Bien may offer testimony that the 3M 8710 iled to meet the Federal regulatory approval and certification requirements of 30 CFR part 11. Specifically, Mr Bien may offer testimony that 3M 8710s failed the silica penetrations requirements and the breathing resistance requirements as prescribed by 30 CFR § 11.1405 and 30 CFR 9. Conse quently, 3M sold the 3M 8710 in violation of its quality control plan and quality control regulations enumerated in 30 CFR § 11.41 et seq. By selling the 3M 8710 in violation of its quality control plan and violation of federal approval regulations, 3M committed fraud by representing that the 3M 8710 was a NIOSH approved respirator, when it was not. Mr. Bien may also offer testimony that the failure of 3M to comply with NIOSH approva regulations causes e 3M 8710 to leak resulting in Plaintiff’s inhalation of silica dust. Mr. Bien may testify that breathing resistance violations, also known as pressure drop, increased the leakage of the mask around the face seal. Mr. Bien may also testify that silica netration violations as reflected by 3M’s own testing data of the 8710 reveal that there was leakage of silica through the filter. This witness may offer testimony relating to the filtering efficiency