Bondex Trial Transcript 1/10/13

7/29/2019 Bondex Trial Transcript 1/10/13

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UNITED STATES BANKRUPTCY COURT

DISTRICT OF DELAWARE

. . . . . . . . . . . . . . .

IN RE: . Case No. 10-11780(JKF)

.

SPECIALTY PRODUCTS HOLDING .CORPORATION, et al., .

.

Debtors. .

. . . . . . . . . . . . . . .

SPECIALTY PRODUCTS HOLDING . Adv. Pro. No. 10-51085(JKF)

CORP., BONDEX INTERNATIONAL,.

INC., .

.

Plaintiffs, .

.

v. . 5414 U.S. Steel Tower

. 600 Grant StreetTHOSE PARTIES LISTED ON . Pittsburgh, PA 15219

EXHIBIT A TO COMPLAINT AND .

JOHN AND JANE DOES 1-1000, .

.

Defendants. . January 10, 2013

. . . . . . . . . . . . . . . 8:34 a.m.

TRANSCRIPT OF ASBESTOS LIABILITY ESTIMATION TRIAL

BEFORE HONORABLE JUDITH K. FITZGERALD

UNITED STATES BANKRUPTCY COURT JUDGE

Audio Operator: Janet Heller

Proceedings recorded by electronic sound recording, transcript

produced by transcription service

______________________________________________________________

J&J COURT TRANSCRIBERS, INC.268 Evergreen Avenue

Hamilton, New Jersey 08619

E-mail: [email protected]

(609) 586-2311 Fax No. (609) 587-3599


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APPEARANCES:

For the Debtor: Jones Day

By: GREGORY GORDON, ESQ.

DANIEL B. PRIETO, ESQ.THOMAS R. JACKSON, ESQ.

2727 North Harwood Street

Dallas, TX 75201

Evert, Weathersby, Houff

By: C. MICHAEL EVERT, JR., ESQ.

3405 Piedmont Road, Suite 200

Atlanta, GA 30305

Evert, Weathersby, Houff

By: EDWARD F. HOUFF, ESQ.

120 E. Baltimore Street, Suite 1300Baltimore, MD 21202

For the Committee of Montgomery, McCracken, Walker &

Asbestos Personal Injury Rhoads

Claimants: By: NATALIE RAMSEY, ESQ.

MARK B. SHEPPARD, ESQ.

K. CARRIE SARHANGI, ESQ.

KATHERINE M. FIX, ESQ.

123 South Broad Street

Philadelphia, PA 19109

Montgomery, McCracken, Walker &Rhoads

By: MARK FINK, ESQ.

1105 North Market Street

Wilmington, DE 19801

Motley Rice LLC

By: NATHAN D. FINCH, ESQ.

1000 Potomac St. NW, Suite 150

Washington, DC 20007

Waters Kraus Paul

By: SCOTT L. FROST, ESQ.

222 N. Sepulveda Blvd., Suite 1900

El Segundo, CA 90245


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APPEARANCES (Cont'd):

For Future Claimants Young Conaway Stargatt & Taylor LLP

Representatives: By: EDWIN J. HARRON, ESQ.

SHARON ZIEG, ESQ.JOHN T. DORSEY, ESQ.

ERIN EDWARDS, ESQ.

The Brandywine Building

1000 West Street, 17th Floor


For RPM International: Thorp, Reed & Armstrong

By: WILLIAM M. WYCOFF, ESQ.

JERRI A. RYAN, ESQ.

One Oxford Centre

301 Grant Street, 14th Floor

Pittsburgh, PA 15219

TELEPHONIC APPEARANCES:

For the Debtors: Jones Day

By: JOHN H. CHASE, ESQ.

2727 North Harwood Street

Dallas, TX 75201

Richards, Layton & Finger, P.A.

By: DANIEL DeFRANCESCHI, ESQ.

ZACHARY SHAPIRO, ESQ.

920 North King Street


For the Committee of Montgomery, McCracken, Walker &

Asbestos Personal Injury Rhoads

Claimants: By: LAURIE KREPTO, ESQ.

DAVIS L. WRIGHT, ESQ.

123 South Broad Street

Philadelphia, PA 19109

For Wachovia Capital Otterbourg, Steindler, Houston

Finance Corp.: & Rosen, P.C.By: ANDREW M. KRAMER, ESQ.

ROBERT GONNELLO, ESQ,

230 Park Avenue, 29th Floor

New York, NY 10169


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TELEPHONIC APPEARANCES (Contd):

For Honeywell: McDermott Will & Emery

By: NAVA HAZAN, ESQ.

340 Madison Avenue

New York, NY 10173

Financial Advisors for The Blackstone Group

the Debtors: By: JAMIE OCONNELL

PAUL SHEAFFER

DANIEL CASIERO

345 Park Avenue

New York, NY 10154

Interested Party: Klehr, Harrison, Harvey &

Branzburg

By: DOMENIC PACITTI, ESQ.

919 Market StreetWilmington, DE 19801

Interested Party: Orrick, Herrington & Sutcliffe

By: JAMES W. BURKE, ESQ.

JONATHAN P. GUY, ESQ.

KATHLEEN A. ORR, ESQ.

RICHARD H. WYRON, ESQ.

1152 15th Street, N.W.

Washington, D.C. 20005

Interested Party: Hughes, Hubbard & Reed LLP

By: LAUREN ASCHER, ESQ.One Battery Park Plaza

New York, NY 10004

Interested Party, Dryvit Dryvit Systems

Systems: By: NIKKI WAKEMAN

For Asbestos Plaintiffs: James F. Humphreys & Associates

By: BRONWYN RINEHART, ESQ.

United Center, Suite 800

500 Virginia Street East

Charleston, WV 25301

For RPM International: Thorp, Reed & Armstrong

By: KAREN GRIVNER, ESQ.824 N. Market StreetSuite 710Wilmington, DE 19801

- - -


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I N D E X

WITNESSES PAGE

DR. LAURA WELCH

Direct Examination by Mr. Finch 7

Cross Examination by Mr. Houff 41Redirect Examination by Mr. Finch 76

MARK IOLA

Contd Direct Examination by Ms. Ramsey 83

Cross Examination by Mr. Jackson 102

Redirect Examination by Ms. Ramsey 131

Recross Examination by Mr. Jackson 135

JEFFREY BLAKE SIMON

Direct Examination by Ms. Ramsey 137

Cross Examination by Mr. Jackson 156

Redirect Examination by Ms. Ramsey 171

DR. MARK PETERSON

Direct Examination by Mr. Sheppard 177

Cross Examination by Mr. Evert 271

EXHIBITS ID EVD.

ACC/FCR/M-128 CV of Dr. Welch 8

ACC/FCR/M-127 Bondex Report 8

ACC/FCR/M-129 Rebuttal Report of Dr. Welch 8

ACC 1015 Slides 8

ACC-1016 Chart from Kanarak report 78

ACC-1017 Pira paper 78

ACC-1016(a) Published paper in Pira 80

ACC-388 Document 134

ACCE-85 CV of Dr. Peterson 184 184

ACC/FCR 1019 Slides 185

ACC 1020 Peterson report dated 5/31/10 270

ACC 1021 Peterson rebuttal report, 10/2012 270

ACC 1022 Peterson rebuttal report, 1/3/2013 270

ACC 1023 Peterson chart drawn in courtroom 270


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THE COURT: Good morning, please be seated.1

MR. FINCH: Good morning, Your Honor.2

THE COURT: This is the continuation of the3

estimation trial in the SPHC case pending in the District of4

Delaware. Participants by phone are Lauren Ascher, James5

Burke, Dan Casiero, John Chase, Daniel DeFranceschi, Robert6

Gonnello, Karen Grivner, Jonathan Guy, Nava Hazan, Andrew7

Kramer, Laurie Krepto, Jamie OConnell, Kathleen Orr, Domenic8

Pacitti, Browyn Rinehart, Zachary Shapiro, Paul Sheaffer, Nikki9

Wakeman, Davis Wright and Richard Wyron. Are there any changes10

in counsel in court this morning?11

MR. FINCH: Jonathan George from the Waters & Krause12

firm will be with me at the outset, Your Honor. This is Nathan13

Finch for the Asbestos Claimants Committee.14

THE COURT: All right. Any others?15

MR. DORSEY: None for the FCR, Your Honor.16

THE COURT: Okay. Mr. Iola -- do you have any17

housekeeping matters first?18

MR. FINCH: We do have a housekeeping matter.19

THE COURT: Yes, Mr. Finch.20

MR. FINCH: Your Honor, when we concluded at the end21

of yesterday, Mr. Iola was still in his direct examination.22

THE COURT: Yes.23

MR. FINCH: By agreement of the parties, we have24

agreed that we will suspend Mr. Iolas direct examination and25

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do, complete the direct and cross examination of Dr. Laura1

Stewart Welch and then resume and conclude with Mr. Iolas2

examination. Is that agreed?3

MR. HOUFF: Yes, Your Honor.4

THE COURT: All right. Thank you.5

MR. FINCH: At this time, Your Honor, the Asbestos6

Claimants Committee calls Dr. Laura Stewart Welch to the stand.7

THE COURT: Good morning.8

COURT CLERK: Please raise your right hand.9

DR. LAURA WELCH, WITNESS, SWORN10

COURT CLERK: Please be seated.11

DIRECT EXAMINATION12

BY MR. FINCH:13

Q Good morning, Dr. Welch.14

A Good morning, Mr. Finch.15

Q Are you a medical doctor?16

A I am.17

Q Where are you licensed to practice medicine?18

A In the State of Maryland.19

Q Is ACC/FCR/M-128, your curricula vitae, in front of you?20

A Yes, it is.21

Q And is that a current and accurate summary of your22

professional biography?23

A Yes, it is.24

Q And it ACC/FCR/M-127 a copy of your Bondex report and what25

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Welch - Direct/Finch 8

we call the big affidavit, which is the additional opinions?1

A Yes, it is.2

Q And, is ACC/FCR/M-129 your rebuttal report in the Bondex3

case?4

A I just moved everything around up here. Yes, it is.5

Q And did you help to prepare a set of slides to summarize6

your testimony, Dr. Welch?7

A Yes, I did.8

Q And is what has been marked Exhibit ACC for demonstrative9

purposes 1015 the slides you helped to prepare?10

A Yes.11

MR. FINCH: Your Honor, at this time we would offer12

for substantive purposes Dr. Welchs curricula vitae, which is13

ACC/FCR/M-128 and for demonstrative purposes only the two14

Bondex reports which is ACC/FCR/M-127, ACC/FCR/M-129 and the15

slide show for demonstrative purposes only, ACC 1015.16

MR. HOUFF: No objection, Your Honor.17

MR. FINCH: May I approach?18

THE COURT: Yes. Exhibit 128 is admitted and 127,19

129 -- thank you, and 1015 are accepted as demonstratives.20

Q Dr. Welch, could you briefly describe your educational21

training through medical school?22

A Yes. I got a bachelors in biology from Swarthmore College23

in Pennsylvania and I graduated from the State University in24

New York at Stony Brook, with an MD degree.25

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Q Have you published any papers in the peer-reviewed medical1

literature that are original research epidemiology studies2

concerning asbestos exposures and mesothelioma?3

A Yes, I have.4

Q Could you describe for the Court the experience you have5

had with researching the epidemiology of asbestos-related6

diseases and the publications that you have done in that7

regard?8

A Yes. One large study that Ive been conducting since 19869

is a longitudinal cohort study of sheet metal workers which is10

one the main construction trades, looking -- originally were11

looking primarily at asbestos-related disease and weve12

expanded it to look at other lung disease and published results13

on that, that look at change in X-ray over time, cause of death14

among sheet metal workers, prevalence of asbestos-related15

disease and some other ancillary studies.16

I conducted a case control study of peritoneal17

mesothelioma when I was at the Washington Hospital Center18

looking at the relationship between asbestos exposure, or the19

prevalence of asbestos exposure among the cases. And, in20

addition, I manage a large medical surveillance program for21

construction workers who have worked for the Department of22

Energy building atomic weapons over the years. And one of the23

predominant exposures to all the different construction trades24

is asbestos. So we also looked in that cohort for25

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asbestos-related disease, including prevalence of lung disease1

and mortality as well.2

Q And the cohort study for the sheet metals workers you3

described is one of the largest cohort studies of asbestos4

exposed workers ever assembled?5

A Thats correct.6

Q And youve been publishing papers in the peer-reviewed7

literature over the years, describing disease incidents seen in8

cohort?9

A Yes.10

Q Including mesothelioma?11

A Correct.12

Q And have any of your peer-reviewed papers, original13

research on the epidemiology of asbestos-related diseases been14

cited by the International Agency for Cancer Research in its15

latest monograph on asbestos?16

A Yes. The one I mentioned about the relationship between17

asbestos exposure and peritoneal mesothelioma was cited by IARC18

in their assessment of peritoneal mesothelioma for the Volume19

101.20

Q Are you board certified in any medical disciplines?21

A Both in internal medicine and in occupational medicine.22

Q Have you held any faculty positions at any medical23

schools?24

A Yes. When I finished my residency I was on the faculty at25

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Albert Einstein in New York. And then I was on the faculty at1

Yale University School of Medicine for about four years in the2

1980s. Then I was at George Washington University, full time3

faculty, from 85 till 1997. I stayed on the faculty there as4

voluntary faculty and supervised students in their research.5

Q Were you ever the chief of any sections at George6

Washington?7

A Yes. When I first started at George Washington University8

I helped establish the program in occupational medicine and9

then was the chief of that and then was the head of the section10

on occupational environmental health in the School of Public11

Health. I also helped establish that department and then12

became the chair of that department.13

When I left GW, I worked for a large hospital in14

D.C., the Washington Hospital Center and did, essentially, the15

same thing there. I set up and occupational medicine program16

and was chief of that program at that hospital, as I continued17

in my faculty appointment at George Washington.18

Q And where are you now?19

A I work for an organization called the Center for20

Construction Research and Training, which is in Silver Spring,21

Maryland. And the focus is to improve health and safety for22

construction workers in the United States, through advanced23

research and intervention studies and training.24

Q How long have you had experience as a medical doctor with25

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workers in the construction industry?1

A Since, maybe 1980.2

Q And would that include drywall workers?3

A Yes.4

Q And Dr. Welch, have you ever been a consultant to the NIH?5

A Yes. I had the pleasure of being a consultant to the6

brain aging section of NIH when I was at GW. They were7

interested in looking at impact of a range of neurotoxins on8

development of dementia. So I helped them with occupational9

histories and with -- it can be a little be hard to assess10

people with dementia, so it was a challenge and really a11

privilege.12

Q Have you been a peer reviewer for any journals that13

specialize in industrial occupational medicine?14

A Yes, for quite a few. I peer review regularly for the15

Journal of Industrial Medicine, the Scandinavian Journal of16

Work Environment and Health and the Journal of Occupational17

Environmental Medicine. And then occasionally have18

peer-reviewed for pretty much all of the other ones,19

Occupational Environmental Medicine in the U.K. Environmental20

Health Perspectives here in the U.S. and others.21

Q How man papers have you published in the peer review22

medical and scientific literature?23

A Its probably 75, something in that range.24

Q And how many of those deal with asbestos specifically?25

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A Oh, 12, 15, something like that.1

Q In addition to your research and publications, do you have2

experience in the diagnosis and treatment of asbestos-related3

disease?4

A Yes, I do.5

Q And how many patients have you diagnosed and/or treated6

for asbestos-related disease?7

(Pause)8

MR. FINCH: How do I --9

UNIDENTIFIED ATTORNEY: Logging off is not good.10

THE WITNESS: Shutting down is not good.11

Q Okay. Just keep going.12

A Okay.13

Q How many patients have you --14

A You know, I, at one point estimated it was about a15

thousand patients that Ive individually examined and16

interviewed and done a physical for, over the course of my17

career. And those include shipyard workers, construction18

workers. Theyre referred to me from all sorts of different19

sources. Their own physician. I would get referrals from20

OSHA and EPA to evaluate people who have called in on their21

hotlines. Some referrals from lawyers and the proportion that22

was coming from lawyers varied. But it was always -- maybe 2523

percent at most from lawyers. Mostly from their own doctors or24

their co-workers.25

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Q Have you ever testified before the United States Congress1

on asbestos disease and causation?2

A Yes, on two different times in 2003 and 2005.3

Q Have you ever been recognized by state or federal courts4

as an expert in internal medicine, occupational medicine, the5

epidemiology of asbestos-related diseases and the causation of6

mesothelioma?7

A Yes. In all those areas I have been so recognized.8

Q And have you been recognized by this court as an expert in9

asbestos-related issues?10

A Yes, I have.11

Q Have you ben recognized by Judge Obrino, who oversees the12

entire federal asbestos MDL, as an expert in asbestos-related13

epidemiology and causation?14

A Yes.15

MR. FINCH: Your Honor, at this time we would proffer16

as an expert, Dr. Welch, as an expert in internal medicine,17

occupational medicine, the epidemiology of asbestos-related18

diseases and the causation of mesothelioma.19

MR. HOUFF: I have no voir dire at this time, Your20

Honor.21

Q Dr. Welch could we --22

THE COURT: All right. Dr. Welch is so certified.23

MR. FINCH: May I proceed, Your Honor?24

THE COURT: Yes.25

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Q Dr. Welch, could we agree that any opinions you offer here1

today are to a reasonable degree of medical and scientific2

certainty?3

A Yes.4

Q Do you have an opinion, to a reasonable degree of medical5

certainty, as to whether chrysotile asbestos causes6

mesothelioma in humans?7

A Yes, I do have an opinion.8

Q And what is that opinion?9

A That chrysotile asbestos does cause mesothelioma in10

humans.11

Q Dr. Brody testified that the predominant fiber type found12

in the pleura was chrysotile. Why is that important from a13

perspective of a medical doctor?14

A Well, if were talking about mesothelioma, the pleura is15

where the tumor arises. So that the presence of fibers in the16

lung, thats not the place where the injury is occurring, its17

in the pleura. So, knowing --18

Q Do you have a slide that sort of shows that?19

A Yes, I do.20

Q Okay.21

A So, this is a diagram of the lung with -- it shows the22

ribs surrounding the lung, the body of the lung and then23

between -- Your Honor, people may have done this for you24

before, the anatomy of the lung, but between the lung and the25

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chest wall theres a space or potential space, called the1

pleural space. Both sides lined with pleural lining and thats2

where the mesothelioma develops. And thats a different kind3

of cell, that are on the pleural lining, the mesothelial cells4

and the cells in the body of the lung itself. So knowing that5

chrysotile fibers get to the pleura is very important when6

were looking at the whole sort of cascade of causation, you7

know. Does chrysotile cause mesothelioma. One of the valuable8

points is knowing that you can find those fibers in the pleura9

and that theyre preferentially translocated to the pleura10

based on some research thats been done.11

Q Dr. Welch, we have heard it suggested that in 1997 the12

Quebec cohort studies demonstrated that the mesotheliomas and13

the chrysotile miners in Canada was caused only by amphibole14

asbestos. First of all, are you familiar with the Quebec miner15

studies?16

A Yes, I am.17

Q Who helped to fund those studies?18

A The Quebec Mining Association.19

Q And what is the Quebec Mining Association?20

A Its an organization of mine owners in Quebec.21

Q The mining of what, asbestos?22

A Oh, yes, sorry. Mining asbestos.23

Q And has that organization -- strike that. Since 199724

have there been any studies that demonstrate an increased risk25

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of mesothelioma in chrysotile workers?1

A Yes, actually quite a few and they --2

Q Do you have a slide that lists out some of the studies?3

A I do.4

Q If you could continue your answer, you were going to say5

quite a few.6

A Quite a few, yeah. And, you know, some -- and I will7

talk about it a little bit later, some of the studies that --8

the big studies that were referred to as the chrysotile cohorts9

have also been followed forward in time and those arent10

necessarily all listed here. But these are from all over the11

world. I mean theyre from Italy, from Lithuania, from the12

U.S., from Egypt, from China, from Spain, looking at cohorts of13

workers exposed to chrysotile asbestos not working with14

amosite.15

Q And these are all studies that have been published in the16

peer-reviewed literature?17

A Yes. And you can see that, you know, really were looking18

at this that are published in the 2000s, primarily. And19

theres reasons that theres more and more information. It20

takes a long time between exposure and development of21

mesothelioma. So if we have plants that started producing in22

the 40s, you need to follow them till 85 before youre going23

to be finding their deaths. So its not surprising were24

seeing so much more coming out now than we had in the 1970s.25

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Q Dr. Welch, it has been suggested there is not one1

epidemiology study showing an increased risk of mesothelioma in2

a cohort of people exposed to only --3

THE COURT: Im sorry, Mr. Finch, youre going way4

too fast. I cant even hear you that fast, and I can listen5

faster than I can type. So if you would slow down, please.6

MR. FINCH: Sure. Im sorry, Your Honor. Were on7

the clock, so Ill slow down even though we are --8

THE COURT: Well, Im sorry. I need to hear your9

questions or I dont understand the answers.10

MR. FINCH: Thats fine. It is -- I am sorry.11

Q It has been suggested that there is not one epidemiology12

study showing an increased risk of mesothelioma in a cohort of13

people exposed to only chrysotile, uncontaminated by amphibole14

asbestos. Is that correct?15

A No, thats not correct.16

Q Do you have a slide listing out the key epidemiological17

studies that chrysotile fibers cause mesothelioma?18

A Yes, I do.19

Q And do you have a slide -- these are the three -- this is20

the Balangero, Italy cohort?21

A Right.22

Q And do you have a slide describing what that study23

demonstrates?24

A I do, yes.25

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Q Describe briefly for the Court what is the significance of1

the Balangero, Italy cohorts that have been published about in2

the peer-reviewed medical literature.3

A Okay. Well, this is studying workers who worked in a4

large open air chrysotile mine in northwest Italy, in the5

Piedmont section of Italy, which opened in 1916. And theres6

no tremolite contamination in that mine. So this is what -- if7

we want to say its a chrysotile mine, free of tremolite, which8

I think was one of the questions thats been raised so far in9

this proceeding. This mine has no tremolite.10

And in 1990, the first study of this mine was11

recorded, which found two mesotheliomas. But then it was12

extended in 2009 with an additional 15 years of followup, which13

means an additional 15 years in which those workers could have14

died. And theyre up to five mesotheliomas in that cohort.15

And that just reinforces what I said before, that as we go16

forward in time, theres more time for people to develop and17

die from mesothelioma.18

Q Youve also listed the Mirabelle study on this slide.19

What does that show?20

A So, the Mirabelle study looked -- it used the tumor21

registry in that area of Italy to look at all the22

mesotheliomas. The Pilotta and Pira were only looking at the23

workers who were employed by the mine but Mirabelle looked at24

all the cancers and they found a lot more that were related to25

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the mine, even though they werent direct employees of the1

mine. They found some that occurred in office workers in the2

mine. They were miners. They found some that occurred in3

miners who werent working directly for the mine, they were4

working for a subcontractor.5

Then they found 13 outside of the mine itself, three6

in workers processing the ore in that area but not directly at7

the mine and then they thought were due to environmental8

contamination around the mine. So, were up to, I think thats9

27 mesotheliomas related to that plant, expanding from what was10

two identified, you know, 20 years ago.11

Q And is this study an amphibole free chrysotile study?12

A Yes.13

Q And is the balangeroite ever been shown -- the ore thats14

called the balangeroite or theres some discussion on that, has15

that ever been shown to cause mesothelioma?16

A No.17

Q The author has concluded that its the chrysotile thats18

causing the mesothelioma and not the balangeroite.19

A Thats correct.20

Q Very briefly, whats the Loomis cohort?21

A Okay. Well, the Loomis -- this particular paper is a22

textile factory in North Carolina. And, again, this group of23

researchers has been studying this factory over a number of24

years. This particular cohort worked in two different -- had25

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two different plants. They call it Plant 3 and Plant 4. So1

this had whats essentially eight mesothelioma cases in a2

chrysotile, textile cohort, where whatever tremolite3

contamination exists there is tiny. And its been -- the4

exposures there have been really well documented and studied.5

So we know a lot about these workers.6

So then Plant 3 had a small amount of amosite used in7

one department. So we had five of these workers who were never8

in Plant 3 and three of them worked in Plant 3 where the9

amosite was used but they were not in those departments at all.10

So these are, in my opinion, are eight mesotheliomas exposed to11

chrysotile, not exposed to amosite.12

Q And in 2011 was there a paper published about a peritoneal13

mesothelioma from a person who had worked in the part of the14

mines in Quebec where there was little or no tremolite15

contamination?16

A Yes. From an individual who worked in the Carey Mine for17

over 40 years. And he developed peritoneal mesothelioma. The18

case was reviewed and reviewed by the Celotex Trust in Canada19

and he was awarded compensation as due to the asbestos in the20

mine. And he had no other exposure of other asbestos work.21

So, again, in my opinion, this is a chrysotile mesothelioma22

without any tremolite or other amphibole contamination.23

Q Dr. Welch, are you aware of any studies that talk about24

how little asbestos it takes to mesothelioma?25

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A Yes.1

Q And have you prepared a slide to show that?2

A Yes.3

Q And very briefly, are Iwatsubo and the Rodelsperger paper4

case control epidemiology studies that demonstrate an excess5

risk of mesothelioma at very low levels of exposure to6

asbestos?7

A Yes.8

Q Whats the Greenberg Davies case series?9

A Well, its a case series of, you know, really a number of10

mesothelioma cases where they did detailed histories. And that11

case series as well as Borro (phonetic) and Skameritz12

(phonetic) and others that I could mention, they all have --13

many of these case series have cases where the exposure was14

short.15

Q How short?16

A A couple of months. And, actually, in the Skameritz one17

which you dont have on the slide, it was in the order of days.18

Q And was the Greenberg Davies study in the order or -- as19

short as three weeks?20

A Right, yes. So, you know, there are a number that are21

under a year and then a number that are under a few months and22

then usually a couple in every one of these big case series23

that are in the order of days and weeks.24

Q Have there been any studies that have demonstrated how25

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little chrysotile asbestos it takes to cause mesothelioma?1

A Yes. There are two I think that are really very helpful2

for that. One is by Madkour from Egypt and one is by Pan which3

was done in California.4

Q Okay. Do you have a slide that illustrates the key points5

of the Madkour study?6

A Yes.7

Q And could you just take us through briefly what this study8

shows and what that slide shows?9

A Okay. Well, this was a study looking at the prevalence or10

presence of mesothelioma around a chrysotile asbestos plant in11

Egypt. And what the table at the bottom shows is the number of12

mesothelioma cases related to the distance from the plant. So13

the closest and then the map above really shows the concentered14

circles that visually display those distances.15

So living within 100 meters of the plant, there were16

39 mesothelioma cases, but if you run down to the bottom, there17

were four mesothelioma cases that occurred over a mile from the18

plant. People who lived at --19

Q Two point five kilometers is over a mile away of living --20

or a mile away from the chrysotile plant, people getting meso.21

A Correct.22

Q And this was a study that was published in the23

peer-reviewed medical literature.24

A Yes.25

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Q And the Pan study briefly, what is that study about? The1

Pan study from California.2

A So that was -- what Pan did was, used cases of3

mesothelioma in California and looked at their residents and4

mapped how close they lived to serpentine deposits which is5

what we call naturally occurring asbestos and serpentine is the6

rock from which chrysotile is mined. And in California, they7

have identified geologically where these naturally occurring8

outcroppings of asbestos are.9

So Pan basically mapped the cases and found that10

there was a relationship between where the serpentine11

outcroppings were and where the mesothelioma occurred. And the12

closer people lived to the outcroppings, the more likely they13

were to develop the mesothelioma.14

Q Dr. Welch, its been suggested that no epidemiology15

studies demonstrate that people who work with asbestos16

containing joint compound are at an increased risk of17

mesothelioma. Is that true?18

A Not in my opinion.19

Q Have you prepared a slide that discusses some of the20

things youve looked at to examine that question?21

A Yes.22

Q And what does this slide show?23

A Okay. Well, here I have listed two papers, one by Stern24

and one, its a case series out of the National Occupational25

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Mortality Survey. And then four papers that talk about rates1

of mesothelioma in painters. So, Stern looked at the union,2

thats the operative plasterers and cement masons and did3

whats called a PMR study. He collected all the deaths of a4

specified cohort of that union. And they had to have been5

active due paying members of the union at the time that they6

died to be able to be included in the study, just part of the7

methods. Which meant that they were long term plasterers and8

cement masons.9

And he found mesothelioma among the cohort and there10

were more of them among the plasterers than the cement masons.11

Q And whats the NOMS database?12

A Thats run by NIOSH, the National Institute of13

Occupational Safety and Health. And state health departments14

send in mortality information they collect, for which they have15

occupation -- its not every state, but I think at the time, by16

now there are 29 states that contribute to it. And then if17

theres occupation on the death certificate, youre able, Im18

able, were all able to look in the database to see what19

diseases are associated with which occupation.20

So if you look for drywall worker, there are three21

cases in the National Occupational Mortality Survey of22

mesothelioma among drywall workers.23

Q Out of 3,000 deaths, roughly.24

A Roughly, yes.25

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Q And is that -- are there limitations on the ability of1

epidemiology to detect risks of a rare disease like2

mesothelioma generally?3

A Generally, yes. If you want to do a cohort study, which4

in some ways gives you more rich data, you identify a group of5

workers, follow them forward in time, youll often know more --6

you dont have to interview them to know where they worked or7

information about the plant because thats usually part of the8

cohort study. But you need a really big study to find9

mesotheliomas because the mesotheliomas is a rare tumor. Were10

talking generally, you know, without significant asbestos11

exposure incidents, of one in a million people. So, youd need12

a big, big study.13

Q On the order of hundreds of thousands of people sometimes.14

THE COURT: Mr. Finch, we have to terminate, so Im15

sorry, well reconvene around 9:30. Well be in recess until16

9:30.17

MR. FINCH: Okay. Thank you, Your Honor.18

(Recess)19

THE COURT: Please be seated.20

MR. FINCH: Whenever youre ready to proceed, Your21

Honor.22

THE COURT: No yet. Waiting for everyone to come in,23

Mr. Finch. Dr. Welch are you ready?24

THE WITNESS: I am.25

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THE COURT: All right, Mr. Finch, thank you.1

MR. FINCH: Thank you, Your Honor.2

Q Dr. Welch, when we stopped you were talking about the3

difficulties or -- not the difficulties, the limitations on4

epidemiologys ability to detect mesothelioma. And could you5

explain how that relates to joint compound work specifically?6

A Yes. Well, you know, I had made this slide to illustrate7

workers exposed to joint compound, but there really isnt a job8

classification for drywall installer. Maybe there is, but like9

when Dr. Robinson at NIOSH did a large study of construction10

workers, they included 60,000 construction workers. There are11

only about 300 that were registered as drywall workers.12

Generally, drywall workers are plasterers, painters or13

carpenters. So trying to do a study just of drywall workers is14

not really possible.15

So the studies that I was using here are the closest16

workers we can find that use drywall compound, even though17

their name is not -- theyre not classified as drywall workers,18

like plasterers and painters.19

In addition, as I think weve talked about, it was20

talked about earlier during the hearing, that workers tend to21

have more than one exposure. People who work with drywall22

compound, they will also be working with and around other dust23

containing materials. So its very hard to isolate either the24

joint compound exposure and particularly hard to isolate the25

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drywall workers themselves. But theres reasons that painters1

are a pretty good proxy, which is why I put painters on the2

slide.3

Q Okay. Before we briefly discuss painters, is there, in4

fact, a study called the Fischbein study of just drywall5

workers?6

A Yes, yes.7

Q And what did that study find and why is it significant?8

A So thats a study in New York with what we call a cross9

sectional study, where the investigators went out and10

interviewed the individuals and classified them as drywall11

workers. And in that particular union in New York, they could12

identify the drywall workers. So in some local unions that may13

be a specific classification. And what they did was look at14

the degree of asbestos-related disease, not necessarily15

mesothelioma but asbestosis, pleural plaque and found a lot of16

asbestos-related disease on chest X-ray in drywall workers,17

which means they have a lot of exposure to asbestos.18

Q And to just -- that was a study about 115 to -- in the19

hundreds, hundreds of people, less than 200 people and about,20

what, 40 percent of them had a radiologically detectible21

asbestosis?22

A Yes.23

Q And Dr. Irving Selikoff was one of the authors of the24

study?25

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A Correct.1

Q And in terms, just generally, in terms of how much2

exposure you need to get asbestosis versus how much exposure3

you need to cause mesothelioma, how do the two relate?4

A Well, you need, comparatively, a lot more exposure to get5

asbestosis. A lot of people think theres some threshold below6

which you dont get asbestosis and, you know, I mean, if youre7

doing fiber year counts, maybe 25 fiber years, some people say8

100 fiber years to get asbestosis. And I know there was9

testimony yesterday talking about, is there a safe level of10

exposure to asbestos for mesothelioma and theres really not.11

When you go down to levels, some of the studies were talking12

about with low dose, theyre talking about a cumulative fiber13

exposure of .15 not a hundred. I mean, its much, much -- so14

if you get asbestosis, youre exposed at a level that puts you15

at really significant risk for mesothelioma.16

Q And was the amount of asbestosis seen in this cohort of17

people that worked with joint compound high compared to what18

you might see in the ordinary population?19

A Oh, yeah. You dont see, you know, people unexposed to20

asbestos, you dont see those X-ray findings. And the rates of21

disease they were finding were similar to what they were --22

that other Selikoff studies were finding in trades we know have23

high exposures, like insulators.24

Q Okay. You mentioned four studies of painters on there25

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that showed an odd ratio or increased risk of mesothelioma, is1

that right?2

A Right. When its a case control study, its really the3

risk of the mesothelioma being exposed to asbestos. So, say in4

Rake and Peto, which was a study, I think, from the U.K.,5

painters were 14 times more likely -- painters with6

mesothelioma were 14 times more likely to have been exposed to7

asbestos than the comparable groups.8

Q Now, painters arent -- why did you pick painters?9

A Well, painters dont have, in their regular work, they are10

not using other asbestos containing compounds. They dont use11

pipe covering, they dont use spray-on insulation. They do use12

joint compound. And there was an analysis of the kind of13

exposures that construction workers have, looking at all the14

materials, a pretty detailed analysis, and basically it said15

that the only asbestos containing material that painters use is16

joint compound.17

Q Now, thats not to say that painters cant sometimes be18

exposed to other types of asbestos is it? I mean it --19

A Correct. Right. If theyre working in the vicinity of20

somebody else using those materials, other materials, they21

could get bystander exposure.22

Q But you think that painters is a useful study to look at.23

A Definitely.24

Q There was a discussion of fiber potency differences. The25

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differences on a per fiber basis between chrysotile and some of1

the amphiboles. Do you recall generally that testimony?2

A Yes.3

Q Okay. Have you analyzed this, yes or no?4

A Yes.5

Q And have you published a peer review paper about it?6

A Yes.7

Q And what is your opinion about the fiber potency8

differences, Dr. Welch?9

A I think theres evidence that there is a difference in10

fiber potency with crocidolite being more potent than amosite11

and amosite being more potent than chrysotile. If I were to12

put a number on the amosite/chrysotile relationship, Id13

probably say amosite is twice as potent as chrysotile.14

But I think its really, really, really hard to get a15

number. And the numbers that we have that date back to 2000,16

say, when Hodgson and Darnton did an analysis, are out of date17

because the cohorts that were used to assess chrysotile have18

been followed forward in time and theres a lot more19

mesotheliomas in there.20

Q Do you have a slide that illustrates this?21

A Yes.22

Q And what -- could you explain to the judge what this slide23

is showing and what has happened to the cohorts of chrysotile24

that have been used in the attempts to quantify fiber potency?25

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A Right. So if you -- theres maybe, I think its around 301

studies that have been used and people keep using the same2

studies in these risk analyses, trying to figure out the3

potency differences, whether chrysotile is less potent. And4

four of them are considered chrysotile only cohorts. So, were5

really looking when were having this big discussion about6

potency, really about these four studies and weve already7

talked about the Balangero, Italy study. Thats the chrysotile8

mine thats known to be tremolite free. And what Ive noted9

there is from the original study, Ive had on the previous10

slide, the Piolotta (phonetic) study, there were two11

mesotheliomas reported. And thats the rate of mesothelioma12

for that population. Its been included in the risk13

assessments that date back to the 90s.14

There are now 27 mesotheliomas, so thats a really15

big change and that makes chrysotile appear much more potent16

than what it was in the 1990 analysis before the two updates17

were published.18

Q And has there been a significant -- a similar -- not19

similar, but there has been additional mesotheliomas in other20

chrysotile cohorts?21

A Right. So the one thats Connecticut is an asbestos22

textile plant in Connecticut which was reported to have none,23

but now is known to have five. And North Carolina, we talked24

about the Loomis one, which has gone from two to eight and in25

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Quebec, theres that one additional case we talked about thats1

been added to the Quebec miner study. That study has not been2

extended the way the other ones have. So there could be more3

mesotheliomas, but that study, we havent extended the4

mortality on that study. But, really, were seeing that the5

other ones are going up ten fold, four fold, ten fold.6

So that the rate of mesothelioma in chrysotile7

exposed populations is much higher than what it was when the8

Hodgson and Darnton risk assessment was done.9

Q And in the summer of 2008 did the Environmental Protection10

Agency convened a science advisory board. Go out and collect11

people from around the world with expertise is asbestos issues12

to try to look at one of the models that have been developed13

for attempting to quantify on a fiber-per-fiber basis the14

differences between the fiber types.15

A Yes. EPA regulates environmental contamination and if16

chrysotile were less dangerous, theyd like to know that17

because it might affect the way they mandate cleanup or18

containment. So they had a contractor put together a risk19

analysis and got together an expert committee to look at that20

risk analysis to see whether they could determine, on a21

scientific basis, that chrysotile was or was not safer than22

amosite.23

Q And what ultimately did the science advisory board24

conclude?25

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A They concluded they were going to stay with the risk1

assessment that EPA had always used, which did not2

differentiate by fiber type. The data that was presented in3

this model was not sufficient, strong enough, robust enough to4

be able to say that chrysotile was less potent that amosite.5

Q And you submitted written testimony in connection with6

this hearing, is that right?7

A I did, yes.8

Q And then following that hearing, you and Dr. Richard Lemen9

who was -- a little bit of testimony about him yesterday, who10

was a noted epidemiologist, and Michael Silverstein published a11

paper in the peer-reviewed literature talking about the12

difficulties in distinguishing between fiber types, is that13

right?14

A Yes.15

Q We heard briefly yesterday some discussion of how many16

fibers per cubic centimeter there might be in the air from17

breathing joint compound and we heard Dr. Brody talk about if18

you had a fiber that gets into your lungs what happens. Just19

from a medical perspective, if someone is working with joint20

compound where theyre mixing it and sanding it, or just even21

sanding it and sweeping up after it, how many fibers would they22

inhale in one day? And you dont need to be this precise23

calculation, I know youve done the math, but are we talking24

about a few hundred fibers, are we talking about thousands of25

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fibers? What are we talking about?1

A Were probably talking six million fibers if theyre2

working at one fiber per cc.3

Q In one day?4

A In one day, if theyre doing physical work which,5

obviously, youre doing if youre doing drywall work. If they6

were just sitting still at a desk in the room where somebody7

else was doing it right next to them, theyd get three million8

fibers. And then it goes up. As your activity goes up, you9

breath faster and breath deeper. So it could be even higher10

than that.11

Q Latency, the judge, Judge Fitzgerald has heard the term12

latency, which is the time from first exposure until the13

development of mesothelioma, do you agree with that?14

A Thats correct.15

Q What is the median, or average, latency for mesothelioma?16

A Well, its -- the average is over 40 years in all the17

studies that are looking at it now, but longer. You know, some18

studies the average is in the 40, 42, 43, which includes cases19

that are as long as 60 years after first exposure. And if20

people are really young when theyre exposed they could be in21

their 80s when theyre getting mesothelioma from the exposure22

they had in their teens.23

Q Is there any upper limit?24

A No.25

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Q Are there cases in the medical literature where1

mesotheliomas have occurred 70, 75 years after first exposure?2

A Yes.3

Q We talked about dose response and Im not going to try to4

draw dose response per again. Cumulative exposure, could you5

illustrate for the Court on the white board the concept of6

cumulative exposure?7

A Sure. We need to turn that so you can see it. If I8

dont drop everything.9

Q Actually, why dont we do it on the flip chart so theres10

a record of it.11

A Okay.12

COURT CLERK: Dr. Welch, are you going to be13

speaking?14

THE WITNESS: I guess thats a good idea. Ill try15

not to make terrible noises.16

THE COURT: Just so it doesnt rub against --17

THE WITNESS: If I hold it and work with my other18

hand maybe thatll work.19

THE COURT: Sure.20

THE WITNESS: Im not doing anything complicated.21

So, basically, if we were to say, this is the box that22

represents any individuals exposure to asbestos, its going to23

be made up of some different boxes and the boxes could be a24

job. It could be a particular product. It could be -- well,25

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yeah, basically a task, a job, different product. So if were1

thinking about products, you could have someone say, whos --2

their total exposure was to one product. Thats extremely3

unlikely because people are doing jobs not product specific4

things. People who work in a factory and stay there their5

entire life, could have exposure to really one, the product6

theyre making but the end users are really being exposed to7

multiple products that may contain the same form of asbestos8

but often are mixed exposures.9

So the most common occupational history is someone10

whos had -- may have a predominant exposure, but they have11

other exposures as well.12

Q And in your opinion, Dr. Welch, if someone has exposure, a13

portion of which is to chrysotile and a potion of which is to14

chrysotile mixed with an amphibole and a portion of it which15

might be insulation which is chrysotile with amosite in it, is16

it fair to exclude the chrysotile as contributing to -- as17

medical matter, as contributing to cause the mesothelioma?18

A No, not in my opinion. I mean, I think its very well19

established that chrysotile causes mesothelioma, as well as20

amosite. So that would be part of their cumulative dose, the21

chrysotile, the amosite in whatever combination that person was22

exposed.23

And, you know, in the U.S., of asbestos used in the24

U.S., 95 percent has been chrysotile. So, even if amosite is25

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more potent, theres been much more exposure --1

Q Wait till you get seated, Dr. Welch.2

A So even if amosite is five times as potent on a3

fiber-by-fiber basis, but 95 percent of the exposure is4

chrysotile, then amosite still is not as important in their5

total cumulative dose.6

Q Youve written the words individual susceptibility on this7

slide. Explain how individual susceptibility relates to the8

causation of mesothelioma.9

A Well, for all cancers, we know that there has to be some10

individual susceptibility because individuals even exposed to a11

very high dose, say people who smoked two packs a day for 5012

years, they dont all get lung cancer. And the same is true13

with mesothelioma, maybe more so because you have populations14

like insulators or textile workers and you could get ten15

percent of them getting mesothelioma, but the majority do not.16

Now, we dont know what those factors are, but we17

know just based on everything we know about the biology of18

cancer and the epidemiology of mesothelioma, that theres going19

to be individual susceptibility.20

Q Meaning some people with a little bit of exposure could21

get mesothelioma whereas other people with a ton of exposure22

never get it.23

A Yes, correct.24

Q Dr. Welch, do you still see patients on a regular basis?25

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A I do. I take off every Friday from my paying job and work1

as a volunteer to take care of people in my community who dont2

have health insurance.3

Q How many times do you come into courtrooms and testify at4

the request of an individual mesothelioma plaintiff in a5

lawsuit, generally speaking?6

A You know, its probably, Id say in the last ten years,7

its probably been twice a year. At most, three times a year.8

Q And how does the amount of time you spend doing that, how9

does that compare to the amount of time you spend actually10

seeing patients?11

A I spend more time on my mobile van than I spend in court,12

Im sure, if I added it up.13

Q Your mobile van is where you see your patients?14

A Right.15

Q Dr. Welch, in the real world if you were seeing patients,16

if you were presented with a patient with mesothelioma, who17

told you that they had used asbestos containing joint compound18

back in the early 70s as a do-it-yourselfer at a level that,19

say a half dozen times a year that was banned by the CPSC, the20

CPSC ban on joint compound and that was what they told you,21

what would you conclude about that persons mesothelioma and22

what caused it?23

MR. HOUFF: Object to the form. Incomplete24

hypothetical.25

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THE COURT: I agree, sustained.1

Q Dr. Welch, if the only -- if you were presented with a2

person with mesothelioma and the only exposure they had in3

their life was to asbestos containing joint compound, what4

would you conclude?5

MR. HOUFF: Objection. Same --6

THE COURT: Overruled.7

A Id conclude that that -- the asbestos in that joint8

compound was the cause of their mesothelioma.9

MR. FINCH: No further questions, Your Honor. Ill10

pass the witness.11

MR. HOUFF: Your Honor, can I have about two minutes?12

THE COURT: Yes, sir.13

MR. HOUFF: Thank you.14

COURT CLERK: Excuse me, Judge, apparently the last15

two objections did not get picked up on the record. The16

microphone wasnt on.17

UNIDENTIFIED SPEAKER: Yes, its on, he just doesnt18

get close enough --19

THE COURT: Mr. Houff, when youre making objections20

you have to make sure youre speaking into the microphone.21

Theyre not being picked up. So let me restate what they were.22

Mr. Houff first objected on the basis that the hypothetical was23

not complete. I sustained that objection. He then renewed24

that objection after Mr. Finch added some additional facts to25

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Welch - Cross/Houff 41

the hypothetical and I overruled that objection and then the1

witness answered. Is that a fair restatement, Mr. Hough?2

MR. HOUFF: Certainly fine with me, Your Honor.3

THE COURT: All right.4

MR. HOUFF: Thank you.5

MR. FINCH: Thats exactly correct, Your Honor.6

THE COURT: All right.7

MR. HOUFF: May I proceed, Your Honor?8

THE COURT: Yes, please.9

CROSS EXAMINATION10

BY MR. HOUFF:11

Q Good morning, Dr. Welch.12

A Good morning.13

Q You have been the -- I guess its the medical director of14

the sheet metal workers screening program since about 87,15

1987?16

A Yes. Im a consultant to their institute, yes.17

Q Okay. And thats a position you had continuously since18

about 1985 or 87?19

A Yeah. Yeah, somewhere around there, yeah.20

Q Okay. And in the sheet metal workers, I guess now its21

called the Sheet Metal Occupational Health --22

A Institute Trust.23

Q -- Institute Trust. Okay. And they have a website,24

correct?25

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A Yes.1

Q Okay. And Im just going to see if I can get this up.2

And does that look reasonably familiar as the home page -- Im3

sorry, nobody can read it.4

A And I dont have my computer glasses on, so I have to kind5

of move myself back.6

Q The SMOHIT, thats their logo, correct?7

A Yes, that is their log.8

Q And this is their -- like their home page?9

A Yeah. They just revamed their home page and I dont --10

but this is certainly from SMOHIT.11

Q Well, I printed it this morning.12

A Yeah. So then -- I havent seen their new -- thats what13

I was going to say because I havent seen all their new home14

pages. I was just looking at it recently. I thought, wow,15

they did all this new -- so I dont know whats on there. But,16

hopefully, its good.17

Q And, in fact, one of the other pages under resources18

includes a page that is entitled Motley Rice contact info. You19

see that?20

A Once you stop moving it, Ill look at it.21

Q All right, sorry. I apologize.22

A Yes. Okay, sure.23

Q And you recognize that?24

A Yeah. Like I said, this is -- the website is new, but I25

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do know that SMOHIT has a relationship with the Motley Rice law1

firm and has since the beginning.2

Q Well, and, in fact, theyve had a relation -- and Motley3

Rice law firm is Mr. Finchs law firm, correct?4

A Correct.5

Q Okay. And, in fact, the Motley Rice law firm has had a6

relationship with the Sheet Metal Workers Institute and the7

screening program since it was originated in 1985 or 87,8

correct?9

A Thats correct. The -- you know, diagnosing10

asbestos-related disease through the program so that the union11

felt they needed to have a way if individuals wanted to pursue12

a claim, to have a network of attorneys available to them. And13

Motley Rice sets up that network.14

Q Okay. Now, this is a little bit truncated on the right15

side and Im going to read this. The Institute has established16

and monitors a legal referral program for sheet metal workers17

suffering from asbestos exposure. Referrals are made to18

attorneys who handle claims against asbestos product19

manufacturers. The program is coordinated by one the premier20

asbestos litigation firms in the county and with good reason it21

is estimated that tens of millions of dollars will be recovered22

from asbestos companies over the next five years for the23

damages caused by asbestos, including loss of income, medical24

expenses, damaged health and shortened life expectancy. So25

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thats whats on the website about Motley Rice and the referral1

program, correct?2

A True.3

Q Now, in addition to that, screenings are, in fact,4

conducted by the Sheet Metal Workers Trust, correct?5

A Yes.6

Q Okay. And Im going to show you this -- Ive got about a7

three page document, or so, maybe four. Im going to show you8

one page at a time. Again, let me pull it back down a little9

bit, do you recognize the logo here?10

A Yes, I do.11

Q Okay. And this asbestos screening program is a medical12

evaluation and an educational session, correct?13

A Correct.14

Q Its not the same as a physical.15

A Right.16

Q And they talk about, this website goes on to talk about17

the education session. Part of the screening is -- let me turn18

it down here, an educational session about the potential19

health affects of asbestos and how to avoid future exposure.20

It also -- an opportunity to ask about other work hazards,21

correct?22

A Correct.23

Q Okay. Now, it says, what if the screening test show a24

problem -- if screening test show evidence of asbestos-related25

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disease, we suggest you schedule a followup meeting with the1

union. Information will be shared regarding continuing care2

and legal rights with physicians and attorneys on-hand to3

answer questions, correct?4

A Correct.5

Q Okay. Now, the next section talks about diseases from6

asbestos, correct?7

A Correct.8

Q And, there are several medical diseases it says that occur9

as a result of asbestos exposure. Ones of greatest concern and10

importance are pleural plaques, asbestosis, lung cancer, colon11

cancer and mesothelioma, correct?12

A Correct.13

Q Okay. Now, Doctor, you have talked about, and Mr. Finch14

talked about IARC and IARC has recently published information15

that concludes that the evidence epidemiologically for the16

relationship between asbestos and colon cancer and17

gastrointestinal cancer is insufficient, correct?18

A Correct.19

Q And thats a proposition with which you agree, correct?20

A Correct.21

Q And so, yet, it still appears on the website of an22

organization of which you are the medical director, that there23

is a higher incidence of cancers of the gastrointestinal tract24

in asbestos workers and doesnt this imply that this is an25

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asbestos-related disease?1

A Yes. And that fact sheet was written when we started the2

program. And although you actually pointed this out to me in3

my deposition, or someone did, and I have not yet updated it,4

but I plan to, to make is consistent with IARC.5

Q Now, if I turn to your report on Page 25, if you have it.6

A I do. Ill just --7

Q Where it says, chrysotile exposure causes peritoneal8

mesothelioma, correct?9

A Hold on one second.10

Q It says, there is no epidemiologic study that has11

determined that exposure to chrysotile asbestos without12

concomitant exposure to amphiboles causes peritoneal13

mesothelioma. Is that correct?14

A Yes.15

Q And is that what you believe?16

A Yes.17

Q Okay. And you talked about -- well, let me ask you also,18

while were here, to turn to Page 30 of your report.19

A Okay, Im with you.20

Q Toward the bottom of the page, it says occupational21

exposures to asbestos in the United States are known to have22

been primarily a mix of fiber types and sizes, correct?23

A Correct.24

Q We can generally assume that any individual worker in the25

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U.S., was exposed to a mix of fiber types and sizes, correct?1

A Yes.2

Q And you know Dr. Stayner, dont you?3

A I do.4

Q Dr. Leslie Stayner is a Ph.D Epidemiologist?5

A Yes.6

Q And he was, in fact, named as a witness in this case,7

correct?8

A I think thats true, yes.9

Q And you have written papers with Dr. Stayner, correct?10

A One, I think. One.11

Q Or in the process?12

A We have one thats in press.13

Q Okay.14

A Yes.15

Q Now, if Dr. Stayner says that there is convincing16

epidemiological evidence that chrysotile is less potent than17

the amphiboles with respect to mesothelioma, you agree with18

that, correct?19

A Yes. I think the issue is -- I mean at some point in time20

maybe it wont be convincing, but Ive addressed that in my21

direct. I think its hard to get an exact number but I think22

its reasonable to say amphibole is probably more potent.23

Q And I think weve covered this, but do you agree with Dr.24

Stayner when he says that everything we have studied including25

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what we consider chrysotile exposed workers really, in fact,1

had some mixed exposures because theres really not pure2

chrysotile thats generally been contaminated with amphiboles3

or something similar like geroite (sic) in Italy and the4

tremolite in Canada. So the factual fact of the matter is,5

everything weve studied has been a mixed exposure.6

A Well, no, I dont think that the Italian cohort is a mixed7

exposure.8

Q Okay. Well --9

A I actually think that there may be some tremolite in the10

Carolina textile plants but its so small that you really have11

to understand how small it is when you start to talk about that12

as a mixed exposure.13

Q Well, you were here yesterday, were you not, when whoever14

was cross examining Dr. Anderson, I guess it was Mr. Frost?15

A No, Mr. Finch.16

Q Mr. Finch, I apologize. Showed this particular document17

to Dr. Anderson, correct, the Turci study, the role of18

associated mineral fibers and chrysotile asbestos health19

affects, the case of balangeroite?20

A I remember they were talking about it, so I dont remember21

whether particular paper went up, but Im familiar with the22

paper.23

Q Youre familiar with paper.24

A Yes.25

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Q And, in fact, balangeroite has a lot of iron in it,1

doesnt it?2

A Do you have a copy of that paper that you can toss to me?3

Q I can give you this one. I didnt have a copy made. May4

I approach, the witness, Your Honor?5

A Just because I think it does address that in there. So6

instead of trying to remember what it said. When they list the7

chemical structure of balangeroite they do list it as an iron8

containing compound. I dont know if its a lot because my9

chemistry is a long time ago.10

Q Mine is longer. In fact, this paper does indicate that11

these authors believe that there is a contributing role or a12

potential contributing role for balangeroite in the induction13

of the mesotheliomas at this location, correct?14

A I dont think they say it as strongly as you did.15

Theyre really talking about -- what theyre talking about is16

that it doesnt appear to act like tremolite, it doesnt17

persist in the lung the way tremolite does. And that -- let me18

write what they say at the beginning.19

Q I think its like the last sentence in the abstract.20

A So they say, we feel that based on the general knowledge21

previously acquired on this mineral, and on the additional22

experimental results, we may rule out the idea that the23

balangeroite occasionally associated to chrysotile, might be24

largely responsible for the health affects found in humans, as25

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claimed in some epidemiology surveys and discussions.1

They point out that balangeroite has a crystal2

structure different from amphiboles and exhibits an echo3

persistence and a durability in body fluids of the same order4

and magnitude of chrysotile. And it says, was ever detected5

but I know they must mean never detected in exposed workers,6

the balangeroite because it never has been.7

Q Okay.8

A Under such circumstances, it may slightly contribute to9

the overall toxicity but cannot be considered responsible for10

the excess of mesothelioma found in Balangero in past and more11

recent studies.12

Q Okay. Thank you. Doctor, chrysotile particles are13

removed from the lungs within a year, generally, correct?14

A Chrysotile fibers?15

Q Yes.16

A You know, most of that is done, its not based on human17

data, and so, youre extrapolating from animal data and18

dissolution studies, so I dont actually have a number that Im19

comfortable with for that. But theyre definitely less20

persistent that amphiboles.21

Q On Page 3 of your report, Doctor, dont you say, at the22

stated rate, chrysotile particle would be removed from the23

lungs by dissolution in less than a year.24

A Yeah, and thats based on the animal studies. And thats25

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based on, Im quoting from the Institute of Medicine.1

Q And you talked about reaching the target spot, did you2

not?3

A Getting to the pleura, yes.4

Q Getting to the pleura, right. Now, youre not suggesting5

that amphibole asbestos doesnt cause mesothelioma, are you?6

A No, Im not.7

Q And youre not suggesting that amphobile asbestos doesnt8

get to the pleura, correct?9

A No. I presume it does because it does cause mesothelioma.10

Q Well, and its been clearly and unequivocally demonstrated11

in the epidemiology that amphobile asbestos causes mesothelioma12

in the pleura and peritoneum, correct?13

A Well, I would say, you know, if you want --- all of the14

information we have, not just the epidemiology, because to go15

from association in epidemiology to cause, you need to go16

through those Hill, Sir Bradford Hill criteria. But all the17

evidence we have is that amphobile has caused mesothelioma,18

yes.19

Q Well, in fact, the very first study that connected20

asbestos to mesothelioma with Dr. Wagner in 1960 was21

crocidolite, correct?22

A Correct, from South Africa.23

Q And, Dr. Selikoff in 1965 showed mesothelioma as an24

amosite factor, correct?25

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A Correct.1

Q And both amosite and presitolite are heavy in iron, arent2

they?3

A Youre saying, youre implying compare to chrysotile?4

Q Yes.5

A I dont really want to talk about the minerology. Im not6

an expert in geology.7

Q Are you aware that theres any iron in chrysotile?8

A Ive seen some of the studies about iron information but9

-- well, actually the structure, I think the structures of them10

are here in this Turci paper. When I was looking at it, I was11

just looking at it. So on this one theyre talking about the12

structure of the chrysotile from the Balangero mine and there13

is iron in it. They talk about the balangeroite as being iron14

rich which we talked about and then tremolite has iron in it.15

And this other -- another chrysotile specimen has iron in it.16

So it does contain iron.17

Q And do you recall -- did you see Dr. Feingolds testimony?18

A No, I did not.19

Q Okay. Now, iron released from some types of asbestos can20

serve as an oxidation reduction catalyst to produce free21

radicals, correct?22

A Thats correct.23

Q And the persistent inflamation response of the asbestos24

fiber leads to the release of reactive oxygen, correct?25

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A Well, thats one of the things that is a part of a1

persistent inflammatory response, is free radicals. Theres a2

lot of cellular activity and cellular cytokines that are3

released from any kind of injury, that bring in inflammatory4

cells. So not all the mechanism is free radical but thats5

part of it.6

Q Well, the long thin needles of amosite and chrysotile can7

get into the farthest reaches of the lung, correct?8

A The --9

Q Amosite and chrysotile --10

A That would be true for chrysotile as well.11

Q But my question was --12

A I mean, the long thin fibers are transported into the13

lung. Any fiber can get into the deep reaches of the lung.14

Sorry, Im jumping ahead of you, I guess.15

Q Well, the fact of the matter is, that the amosite and16

chrysotile because they are long and straight line up in17

laminar flow in the airways and can reach the farthest reaches18

of the lungs, essentially in tact, correct?19

A A fiber can line up in the laminar flow and get to the far20

airways. And we know that can happen for chrysotile even21

though chrysotile in its native habit is curly. When its a22

fiber, a single fiber, its not a curly fiber, its a straight23

fiber.24

Q Chrysotile fibers are much more likely to get impacted in25

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the branch points of airways and not reach the ovular space1

than amphiboles, correct?2

A I dont know that as a fact, no.3

Q When one sees asbestos bodies in the lung, asbestos body4

is an iron coated fiber, correct?5

A Yes. Its the reaction of the lung to the persistent6

presence of the fibers to coat it.7

Q Right. And about 98 percent of the time, these are formed8

on amphiboles, correct?9

A Yeah, I think thats right. I dont know the number, but10

definitely predominantly amphiboles.11

Q Now, you talked about the preferential area, the12

preferential location of short chrysotile fibers in the pleural13

space, correct?14

A I didnt say short. I said that some of the Suzuki15

studies suggest that theres preferential translocation of16

chrysotile.17

Q Well, there are problems with the Suzuki study, arent18

there?19

A Theres problems with any study, I guess.20

Q Well, its been criticized pretty significantly, hasnt21

it?22

A Do you want to be more specific?23

Q Well, in the fact -- in the 2003 EPA draft of the24

technical support documents for a protocol to assess asbestos25

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risk, the Suzuki study was characterized as having used a1

non-standard technique without any controls?2

A Well, Im not familiar with that criticism.3

Q And do you also know whether or not as was asserted there,4

that water was used during the digestion process and that water5

can contain as many as 30,000 fibers per liter of small6

asbestos fibers?7

A I know that was a concern and I somehow thought that that8

was resolved and -- I mean, yes, water can contain asbestos but9

I dont think there was any evidence that the water he used10

contained fibers.11

Q Well, wasnt it suggested that his reports were12

contaminated because most of the fibers he found were either in13

pleural plaques or tumor?14

THE COURT: Or what, Im sorry?15

MR. HOUFF: Were found in pleural plaques or tumor.16

THE COURT: Tumors, okay. Thank you.17

A But that still tells you that the chrysotile is out in the18

pleural space, so I dont really understand why thats a19

problem.20

Q Well, there was a more rigorous study by Boutin,21

B-o-u-t-i-n in 1996 in the parietal pleural that found a22

mixture of fibers including long amphibole fibers among living23

patients with asbestos-related conditions, correct?24

A Yes. I think youd expect to find amphibole fibers in the25

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pleura as well.1

Q And the mere presence of short chrysotile fibers does not2

imply causation, correct?3

A Thats -- I dont really understand your question. If I4

were looking at an individual person that had pathology and had5

short chrysotile fibers in their pleura, that would be one of6

the things I could take into account in making my opinion.7

Q No single experiment or epidemiological study can provide8

decisive data on the effects of a toxin on people, correct?9

A No, I wouldnt say that absolutely. Some things are so --10

one study could be definitive, but generally, you know, when --11

there was some discussion previously about the Bradford Hill12

criteria and one of them is consistency, you know. The same13

finding is repeated in other studies. So, its generally what14

we like to see, but usually I dont like to say never. You15

know, that can never happen because there could be a16

circumstance where thats the case.17

Q Well, on Page 14 of your report, dont you say, no single18

experiment or epidemiological study can provide decisive data19

on the effects of a toxin on people?20

A Yes. I was just looking to see if that was a quote from21

anybody, but no. Yes, thats me.22

Q Dont you also agree that studies in humans are likely to23

be confounded by variables other than the one of interest and24

for this reason every study must be scrutinized not only for25

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such confounders, but for defects in study design, data quality1

and the strength of statistical correlations?2

A Generally thats what youd look for. I mean, you go into3

a study, an epidemiologic study, things that are confounders4

which are other factors that could cause the effect youre5

looking at, you do your best to collect data on that. And if6

you cant, you know, if, for example youre doing a cohort7

study of lung cancer and you cant get information on8

individual smoking, then you can do your best to understand the9

impact of smoking without that. So, in every -- no study is10

perfect.11

But, you know, I just was thinking that in the12

Netherlands they did an updated risk assessment of exposure to13

asbestos and potency. And they looked at all the available14

studies and used only the highest quality ones, which then gets15

you fewer cases, but higher quality exposure assessments and16

the potencies came closer together and were higher.17

Q And what study was that?18

A Its a -- theres two papers. Theres Birdoff and I think19

its -- its either Leytner (phonetic), its L-e-y-t-n-e-r or20

L-e-t-y-n-e-r, from I think 2009.21

Q Well, Doctor, on Page 15 of your report you do say what22

Ive just said, correct? Studies in humans are likely to be23

confounded by variables other than the one of interest and for24

this reason, every study must be scrutinized not only for such25

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confounders but for defects in study design, data quality and1

the strength of the statistical correlation.2

A Are you on Page --3

Q Fifteen.4

A Fifteen. So thats probably a quote out of Dr. Kassirer?5

Q It looks like it.6

A Its under assessing evidence and causality, right?7

Q Right.8

A Yeah. So thats a quote out of his book.9

Q Well, do you agree with it?10

A Yeah, generally, yeah, I do.11

Q And you agree that just because a study has been published12

in a prestigious peer-reviewed journal is no assurance that its13

results or conclusions are correct, right?14

A Yes.15

Q And as corollary to that, just because a famous person16

publishes something doesnt mean its necessarily correct,17

right?18

A Yeah. I think thats probably true. I mean famous people19

get a -- they get a head start. You say, whoa, that came from20

Dail & Peto, Id better read that. But they could be wrong.21

Q Right. Well, you talked about Dr. Lemen and Dr. Lemen22

testified for years for asbestos plaintiffs, didnt he?23

A I dont know about Dr. Lemens testifying. I know he has,24

but I dont really know years or how much.25

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Q And, Dr. Nicholson also testified for years for1

plaintiffs, correct?2

A I dont know that at all, one way or another.3

Q Now, on Page 40 of your report you say that in4

occupational epidemiology classification of the exposure is5

obviously very important, correct?6

A You said four zero, 40?7

Q Yes, 40.8

A Yes, sure.9

Q Now, you talked for a moment -- well, I dont need to talk10

about it. You talked about Dr. Eaglemans (phonetic) case11

report, correct?12

A Yes, I did.13

Q And that is a case report, it is not an epidemiological14

study, correct?15

A Correct.16

Q Now, do you know Dr. Eagleman?17

A I do.18

Q And do you know that his opinion testimony on causation19

has been ruled out in acetyl cases?20

A In what cases?21

Q Acetyl. Popcorn lung cases.22

A Oh, okay. No, Im not aware of that.23

MR. FINCH: Objection to the relevance of popcorn24

lung, Your Honor.25

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MR. HOUFF: Your Honor, my point is that what the1

reputation and what the history of the witness testifying or2

publishing a document, in publishing a case report is relevant3

to how much weight you should give it.4

THE COURT: Im sorry. How much weight should be5

given to a peer-reviewed versus non --6

MR. HOUFF: No, to this case report.7

THE COURT: Oh, to the case report. Okay. Does the8

case report deal with popcorn lung cases?9

MR. HOUFF: No. The case report deals with drywall.10

THE COURT: Well, then why is that relevant to a11

popcorn lung opinion?12

MR. HOUFF: Because its the same opinion, Your13

Honor.14

THE COURT: Well, I -- okay. I dont know. Ill --15

MR. FINCH: I object to that characterization.16

THE COURT: Well, I dont --17

MR. FINCH: A popcorn lung opinion being the same as18

an opinion relating to chrysotile.19

THE COURT: Okay. I dont have any --20

MR. HOUFF: Ill withdraw the question. Ill21

proceed, Your Honor.22

THE COURT: Okay.23

Q Doctor, you talk about the Rolland study. That was24

published twice, correct?25

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A The which study?1

Q The Rolland, R-o-l-l-a-n-d.2

A Oh, Rolland, yeah. Actually, I dont think I talked about3

it, but its in my report.4

Q Its one of your lists, correct?5

A The one I was referring to as an abstract, I think, from6

2006?7

Q Right.8

A Those -- as far as I know, those particular -- what he9

presented in the abstract has not been published.10

Q Right. And, in fact, he did make a publication of the11

same data that did not include a dose, correct?12

A Thats -- his abstract was talking about the French13

mesothelioma surveillance system and theres been multiple14

publications about that cohort. But as far as I know, hes not15

published the one that included the dose information.16

Q Right. And the Loomis case that you talked about is a17

publication by Dr. Stayner, correct?18

A Hes probably one of the authors. That group is Loomis,19

Hines, Stayner, Dement and some other people.20

Q Right. And they could not find a dose response21

relationship for mesothelioma in that study, could they?22

A No. Theres too few cases to do dose response if you only23

have four mesos and four pleural cancers.24

Q Now, one of the things that you cited as well was the Li25

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Bondex Trial Transcript 1/10/13

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