1

 1 UNITED STATES DISTRICT COURT

 2 SOUTHERN DISTRICT OF OHIO

 3 WESTERN DIVISION

 4

 5 RICK E. NEWMAN, :

 6 Plaintiffs, :

 7 vs. : Case No. C-1-01-0067

 8 THE PROCTER & GAMBLE :

 COMPANY, et al.,

 9

 Defendants. :

 10

 11 Deposition of ROGER WABEKE, a Witness

 12 herein, taken as upon direct examination by the Defendants,

 13 and pursuant to the Federal Rules of Civil Procedure,

 14 agreement of counsel, and stipulations hereinafter set

 15 forth, at the offices of Beverly Storm, Esq., Arnzen &

 16 Wentz, PSC, 600 Greenup Street, Covington, Kentucky, at

 17 11:00 A.M., on the 9th day of May, 2002, before Kathy

 18 Simpson, a Notary Public for the State of Ohio.

 19

 20

 21

 22 TRI-COUNTY COURT REPORTING AND VIDEOTAPE SERVICE

 23 95 SOUTH FOURTH STREET

 BATAVIA, OHIO 45103

 24 (513) 732-1477

 25

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 1 APPEARANCES:

 2 On behalf of Plaintiff:

 3 BEVERLY R. STORM, ESQ.

 Arnzen & Wentz, PSC

 4 600 Greenup Street

 P.O. Box 472

 5 Covington, KY 41012-0472

 6 On behalf of Defendant P&G:

 7 SCOTT THOMAS, ESQ.

 JEANETTE DANNENFELSER, ESQ.

 8 Furnier & Thomas, LLP

 One Financial Way, Suite 312

 9 Cincinnati, Ohio 45242

 10 On behalf of Defendant Mesa, Inc.:

 11 JOHN C. SCOTT, ESQ.

 Faulkner & Tepe, LLP

 12 Five West Fourth Street, Suite 2200

 Cincinnati, Ohio 45202

 13 S T I P U L A T I O N S

 14 It is stipulated and agreed by and between

 15 counsel for the respective parties that the deposition

 16 of Roger Wabeke, a Witness herein, called as upon

 17 direct examination by the Defendants, may be taken at

 18 this time and place pursuant to the Federal Rules of

 19 Civil Procedure, agreement of counsel; that the

 20 deposition may be recorded in stenotype by the Notary

 21 Public, Kathy Simpson, who is also the court reporter,

 22 and transcribed out of the presence of the witness;

 23 and that signature of the deponent was expressly waived.

 24

 25

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 1 I N D E X

 2 WITNESS DIRECT REDIRECT

 3 ROGER WABEKE

 4 By Mr. Thomas: 4 187

 By Mr. Scott: 160

 5

 - - -

 6

 7 EXHIBITS MARKED/REFERRED

 8 Exhibit No. PG-4 66

 9 Exhibit No. PG-10 158

 10 Exhibit No. PG-70 5

 11 Exhibit No. PG-71 5

 12 Exhibit No. PG-72 6

 13 Exhibit No. PG-73 69

 14 Exhibit No. PG-74 123

 15 Exhibit No. PG-75 126

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 19

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 1 ROGER LEE WABEKE

 2 a witness herein, being of lawful age, after having been

 3 duly cautioned and sworn, was examined and deposed as

 4 follows:

 5 DIRECT EXAMINATION

 6 BY MR. THOMAS

 7 Q Will you state your full name, sir.

 8 A My full name is Roger Lee Wabeke, that's

 9 W-A-B-E-K-E.

 10 Q Sir, my name is Scott Thomas and I'm here on

 11 behalf of the Procter & Gamble Company to ask you some

 12 questions about a report and some prospective testimony in

 13 this case. I gather from looking at your curriculum vitae,

 14 that you're no stranger to giving depositions, I take it?

 15 A I'm not.

 16 Q Well, my ground rules are probably the same

 17 as everybody elses. If you don't hear my question, let me

 18 know that and I'll repeat it; that's generally not a

 19 problem. If you don't understand my question, let me know

 20 that and I'll do my best to rephrase it in a way that's

 21 clear. It's my job to ask a question that makes sense. And

 22 you're not required to guess at what I'm trying to get at,

 23 so if there's any doubt at all, let me know; otherwise,

 24 we'll just assume that you heard and understood my question.

 25 Fair enough?

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 1 A Fair enough.

 2 Q Let me hand you two exhibits that have been

 3 marked PG-70, which appears to be a report dated October 27,

 4 2001, and PG-71, which appears to be your curriculum vitae.

 5 First take a look at No. 70. Is that, in fact, a report

 6 that you issued in this case, with some attachments, dated

 7 October 27, 2001?

 8 A It is.

 9 Q And is that a true and accurate copy of your

 10 report?

 11 A I believe so, yes.

 12 Q And the opinions and conclusions that you

 13 formed in this case, are they all included in that report?

 14 A They are.

 15 Q Now, Exhibit 71 is a curriculum vitae that we

 16 got around the same time. Is that a true and accurate copy

 17 of your curriculum vitae -- and I apologize if I'm

 18 mispronouncing that. My Latin is terrible.

 19 A I think that's correct. Yes, up until this

 20 date. I didn't bring a correct version. It's essentially

 21 not different. It's essentially the same as this one.

 22 Q Sir, could I trouble you to provide Ms. Storm

 23 with a current copy of your curriculum vitae at a later

 24 date? In fact, what I'll do is if you could forward that to

 25 the court reporter and just make a note that we're going to

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 1 mark that PG-72; is that all right?

 2 MS. STORM: Yes, it is. Off the record.

 3 (Off-the-record discussion.)

 4 Q All right. So what we're going to do is mark

 5 in advance Exhibit 72, which would be the new and updated CV

 6 for Mr. Wabeke.

 7 Is there anything that you could tell me as

 8 we sit here about what is different on your current CV from

 9 what appears on the copy that we've got marked as Exhibit

 10 71?

 11 A I would say, Mr. Thomas, in general not major

 12 changes, perhaps a few internal publications through the

 13 University and some additional speaking engagements. But

 14 other than that, nothing. And I'll be happy to send a new

 15 one to Ms. Storm.

 16 Q Okay. And please be happy to call me --

 17 A Either tomorrow or the first part of the

 18 week.

 19 Q Please be happy to call me Scott. Nobody

 20 calls me Mr. Thomas. Let's start off with the CV, first

 21 off. And I'm going to -- I'm going to go through this more

 22 quickly and just to confirm in my own head that I digested

 23 it accurately. You were born August 29, 1940, in Detroit,

 24 Michigan?

 25 A Yes.

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 1 Q And you graduated from high school in 1958 at

 2 Redford High School?

 3 A Yes.

 4 Q That's also in Detroit?

 5 A Yes.

 6 Q From there, I take it, you did odd jobs,

 7 carpentry and roofing until you joined the Navy in 1960?

 8 A That's right.

 9 Q And then in the Navy you served as a

 10 Corpsman?

 11 A Yes.

 12 Q And you were honorably discharged from the

 13 Navy in 1963?

 14 A Yes, my active duty ended in 1963. I believe

 15 I had two additional years that I was on inactive reserve.

 16 So officially the discharge date would have been about 1964

 17 or 5.

 18 Q From the reserves, but you were discharged

 19 from active duty in 1963?

 20 A Yes, right.

 21 Q And in 1999, you got a Bachelor's of Science

 22 Degree in Chemistry and Biology from Wayne State University

 23 College of Science.

 24 A Yes.

 25 Q And when did you begin going back and taking

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 1 courses at Wayne State?

 2 A In graduate school, I'm not sure.

 3 Q Well, to start taking the courses that

 4 culminated in the degree in 1998.

 5 A I started about 1964 or 65.

 6 Q All right. Did you go -- was it part-time at

 7 some point or was it night school or what was that?

 8 A It was part-time for, perhaps, the first two

 9 years and then full-time for the last two or three years.

 10 Q And between 1963 when you got out of active

 11 duty and when you started doing the part-time work, you were

 12 -- you had gone back to the carpentry and roofing and doing

 13 things of that nature until -- and, perhaps, while you were

 14 attending college during those first two years?

 15 A That's exactly right.

 16 Q And you started at what was then Wyandotte

 17 Chemicals Corporation in 1976?

 18 A Yes.

 19 Q So that would have been in your junior year,

 20 perhaps?

 21 A Junior or senior, yes.

 22 Q And what did you do at BASF or Wyandotte,

 23 excuse me?

 24 A I was hired as an industrial hygiene

 25 technician and I operated industrial hygiene.

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 1 Q What does an industrial hygiene technician

 2 do?

 3 A Well, I was responsible for a variety of

 4 issues at plants that BASF, or at the time Wyandotte

 5 Chemicals Corporation, had throughout the United States and

 6 Canada. I primarily inspected plants, site visits with an

 7 eye toward chemical exposure to workers in these sites. I

 8 evaluated the exposures, took ventilation measurements,

 9 obtained the air samples, studied the work practices and

 10 prepared reports with the findings with recommendations as

 11 appropriate.

 12 Q And what kind of chemicals were you involved

 13 with doing this work?

 14 A Wyandotte Chemicals manufactured perhaps

 15 hundred of chemicals. Many were inorganic in nature, others

 16 were organic in nature. The company manufactured basic

 17 chemical such as chlorine, caustic soda, hydrogen, soda ash,

 18 sodium bicarbonate. It manufactured coal tar chemicals and

 19 manufactured a variety organic chemicals used in polymer

 20 formulations and paints, in disbursements and surfactants,

 21 again a very broad mix of chemicals.

 22 Q Did they manufacture sulfur dioxide?

 23 A No, we purchased it, but did not manufacture

 24 it.

 25 Q Was it used in the chemical processes that

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 1 were involved in making some of these other compounds?

 2 A It was used essentially in one process in the

 3 manufacture of detergents and synthetic detergents.

 4 Q Now, in evaluating the ventilation and work

 5 practices and doing air sampling, I take it you were

 6 monitoring the air in the occupational workplace for the

 7 presence of the kinds of chemicals that we're talking about?

 8 A Yes.

 9 Q And very often in these industrial practices

 10 the very active manufacturing, whether it be equipment or

 11 compounds at BASF, these chemicals are released into the

 12 work atmosphere and an industrial hygienist or someone like

 13 yourself will look at that environment to make sure that the

 14 concentration, if you will, of the various chemicals are

 15 within safe limits; is that fair?

 16 A That's one thing that's done. That's not the

 17 entire picture, but that is part of it, yes.

 18 Q And what were your hours like? I noticed

 19 from your CV that you worked from '67 to 1972 at Wyandotte.

 20 That embraces probably the last two or three years of your

 21 undergraduate work. What kind of hours were you putting in

 22 at Wyandotte?

 23 A Well, as it turns out, I needed one course to

 24 get my Bachelor of Science Degree in Chemistry and Biology.

 25 When I hired in at Wyandotte Chemicals, I had taken all but

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 1 that one course. So I took that one course in night school

 2 in about 1969. So it's not a true reflection that I was

 3 working full-time and going to school part-time for the

 4 first two years of my employment at Wyandotte Chemicals.

 5 Q Okay.

 6 A My hours --

 7 Q Well, let me just say this. I infer then

 8 that it's fair to say that between '67 and '72 your work at

 9 Wyandotte was what we would generally call full-time?

 10 A That's right.

 11 Q And you continued there after your

 12 graduation?

 13 A Yes.

 14 Q And your title appeared to change from

 15 industrial hygiene technician to assistant industrial

 16 hygienist. What if anything was changed in the duties that

 17 you performed at that time?

 18 A I can't recall any change in my duties.

 19 Q A fancier title and perhaps better pay?

 20 A Yes.

 21 Q And then in 1975, you got a Master's of

 22 Science in Industrial Hygiene and Occupational and

 23 Environmental Health; is that correct?

 24 A Yes.

 25 Q And that was also at Wayne State?

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 1 A Yes.

 2 Q And when did you begin working toward that

 3 degree?

 4 A About 1971, 1970 perhaps.

 5 Q All right. And so mindful that you also went

 6 -- you worked at Wyandotte until '72, and then from '72 on

 7 you began working at Ford?

 8 A Yes.

 9 Q And so tell me about how you juggled the

 10 education and the work?

 11 A Much like any graduate student or any student

 12 that is working and going to school. You have very little

 13 free time. My classes were offered almost exclusively in

 14 the evening, say, from 4:30 to perhaps as late as 10:00 at

 15 night.

 16 Q So generally speaking you were in a night

 17 program working full-time at Ford?

 18 A Yes.

 19 Q And were your duties at Ford between 1972 and

 20 1977 roughly equivalent to the kinds of activities that you

 21 described earlier that you did at Wyandotte?

 22 A Well, obviously the nature of the businesses

 23 were different. But as an industrial hygienist, we looked

 24 at all the factors in the workplace that could have an

 25 impact on Ford employees, including chemical exposures,

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 1 physical agents, biological factors and ergonomic issues.

 2 Q What is a study of Industrial Hygiene

 3 Occupational and Environmental Health at the Master's level,

 4 what does that entail?

 5 A Courses, a thesis. I chose the thesis option

 6 over the essay. A variety of courses in the recognization,

 7 evaluation and control of stress agents within the workplace

 8 that can affect the comfort and indeed the health or even

 9 the life of workers in those environments.

 10 Q Now, in 1977 I'm reading -- inferring from

 11 this that your duties at Ford changed in the sense that you

 12 became involved in the industrial hygiene and toxicology

 13 laboratory; is that right?

 14 A Yes.

 15 Q Tell me what that involved.

 16 A Well, I was a supervising industrial

 17 hygienist. At the time, we developed a new laboratory, a

 18 new testing facility for the environmental sampling that our

 19 department collected throughout Ford workplaces. I was the

 20 director of the laboratory as well as the supervisor of

 21 industrial hygiene.

 22 Q So I take it that half -- I don't mean this

 23 quantitatively, but in one role you were in charge of the

 24 laboratory work that involved the testing of samples that

 25 were collected in Ford facilities?

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 1 A I managed the entire department. And I

 2 believe that started about 1978, '79, '77. I'm not sure of

 3 the year. And then I had two groups, the laboratory

 4 function and the field staff. The field industrial

 5 hygienists who entered the various plants to conduct their

 6 studies under my direction, and then the laboratory staff

 7 that would analyze the samples that were collected by those

 8 people.

 9 Q Okay. You used a phrase "industrial hygiene

 10 and toxicology program," what does mean?

 11 A Perhaps it should more be aptly phrased the

 12 laboratory was the industrial hygiene and toxicology

 13 laboratory at Ford Motor Company. We focused on

 14 occupational toxicology, not medical toxicology. We were

 15 looking at the effects of chemicals primarily on the health

 16 of Ford employees.

 17 Q I'm not criticizing the label, just trying to

 18 --

 19 A Well, looking back on it perhaps it would

 20 have been more appropriately labeled, "The occupational

 21 toxicology laboratory." But essentially we were concerned

 22 about the potential adverse health effects of chemicals, for

 23 the most part, on Ford employees. That involved testing,

 24 not animal testing as traditional toxicologist do, but the

 25 testing of environment samples collected by field industrial

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 1 hygienists.

 2 Q But the testing that was done was related to

 3 samples on Ford premises?

 4 A For the most part, yes.

 5 Q At any time was there -- in your work at

 6 Ford, was there a collection of samples or testing of

 7 samples related to sulfur dioxide?

 8 A Yes.

 9 Q And in what process or activity of the Ford

 10 Motor Company would sulfur dioxide be a potential compound

 11 in the atmosphere, the work atmosphere?

 12 A There were two major processes that seized

 13 our attention. The manufacture of cores and grey iron

 14 foundries. And of the Ford foundries, I believe we had six

 15 at the time. Only three had the process. One in Michigan;

 16 one in Windsor, Ontario; and one in Cleveland. And the

 17 other major process where Ford employees could be exposed to

 18 sulfur dioxide gas was in the steel mills in Dearborn,

 19 Michigan. There were two plants. There was a basic oxygen

 20 furnace and an electric re-mill furnace. There were

 21 occasional studies done on a sporadic basis for sulfer

 22 dioxide at certain battery charging operations, but those

 23 were essentially non-problematic.

 24 Q Now, these -- let me make sure I understand

 25 that first expression you said. Core in grey iron --

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 1 A Foundries.

 2 Q -- foundries. What does that mean?

 3 A Let's say that -- perhaps I can describe it.

 4 Let's say we wanted to make a cast metal cup in which we

 5 would pour molten metal in this case iron to make the cup.

 6 We will have to have the box; a mold, a molded material; and

 7 then a space. The space would be the cup. The core would

 8 be that portion of this casting process that would be in the

 9 -- it would form the interior volume of the cup. And sulfur

 10 dioxide in this process would actually cure the chemicals

 11 that are used to make the core. After the metal solidifies,

 12 the core and the molds are broken away and we have a metal

 13 cup.

 14 Q Where is the grey iron?

 15 A The grey iron would be the material to make

 16 the cup. Not that cups are made of grey iron, but I'm

 17 trying to give an example.

 18 Q And how does the sulfer dioxide get used?

 19 A It was a binding agent in the core-making

 20 process to bind the grains of sand together along with

 21 polymers.

 22 Q Okay.

 23 A And instead of cores, these were engine

 24 blocks, pistons, and crank shafts and things like that.

 25 Q Now, in these processes that you've described

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 1 in that foundry, that kind of core foundry and in the steel

 2 mills, I take it that these processes necessarily release

 3 sulfur dioxide into the working atmosphere of the folks who

 4 are performing this work to one extent or another?

 5 A That's right.

 6 Q And part of the job of the industrial

 7 hygienist is to keep tabs on that work atmosphere and ensure

 8 that the sulfur dioxide in that work area does not approach

 9 dangerous levels or levels that are injurious to health; is

 10 that fair?

 11 A That's part of the job. The air sampling in

 12 and of itself is not the job, it's the overall chemical

 13 safety of the entire process.

 14 Q I don't mean to oversimplify.

 15 A No, I understand.

 16 Q That is the general idea. You figure out

 17 what the air atmosphere in that work environment is and

 18 analyse it, and then you take whatever steps are necessary

 19 so that the work can be done safely by the workers in there.

 20 A Yes, but air samples are not done routinely

 21 in all processes. The overall objective is to have a system

 22 in place to prevent exposures. Air sampling on some

 23 occasions might be part of that, but not as a matter of

 24 routine.

 25 Q Okay. That takes me back to my earlier

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 1 question. I just got the impression that in these various

 2 activities -- that's why I think I used the word

 3 "necessarily" -- when you engage in these activities, some

 4 sulfur dioxide is going to go into the work environment

 5 merely because you're engaging in core foundries where this

 6 sulfur dioxide is used as a binding agent or assistor or

 7 it's used in some other -- to some other end in the oxygen

 8 furnace or something like that; am I wrong?

 9 A Yes. The objective isn't that sulfur dioxide

 10 and gas and other air contaminates do not enter the work

 11 environments. They can be released in a process, but the

 12 objective is to control that release such that the

 13 contaminates don't reach the breathing zone of the workers.

 14 So while there is a release in the process, ideally it's not

 15 to expose the workers, it's to be exhausted in such a way

 16 the workers are not exposed.

 17 Q Let me ask it this way. In these processes

 18 was the concentration of sulfur dioxide in the working

 19 atmosphere where the operators were, was that concentration

 20 zero?

 21 A No, it was -- well, at some processes with

 22 some core-making machines it was non-detectable, it was at

 23 ambient concentrations. In other situations it was out of

 24 control and required attention, so it was variable.

 25 Q And that was part of your job to control it?

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 1 A That's right.

 2 Q In 1987 you joined Chemical Risk Management?

 3 A Yes.

 4 Q And what is Chemical Risk Management?

 5 A Well, it's my company, as small as it is.

 6 It's not a Ford Motor Company. We are an environmental

 7 consulting firm. We provide services in industrial hygiene

 8 and chemical safety engineering and environmental pollution,

 9 primarily to small companies in the mid-west.

 10 Q So what happened in 1987 when you left Ford?

 11 A I went into business for myself. I excepted

 12 a position at Wayne State University as an adjunct professor

 13 in the Department of Occupational and Environmental Medicine

 14 and I started consulting for companies on industrial hygiene

 15 issues and safety engineering.

 16 Q Okay. How many people were in Chemical Risk

 17 Management when you opened your doors in 1987?

 18 A Initially it was me. We had as many as

 19 seven. Right now it's just me. Typically over the years

 20 three people, consulting engineers.

 21 Q Sometimes when this -- when a person does

 22 this, they merge with some other entity that already exists,

 23 maybe it's a shell corporation, maybe it's a company that a

 24 person's retiring and they take it over. I guess my

 25 question is did Chemical Risk Management perform any of

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 1 these kinds of services that it did while you were the

 2 president prior to 1987?

 3 A No. I should mention that I've been a

 4 consulting industrial hygienist for 33 years, perhaps. But

 5 after 1987, I was doing business as Chemical Risk

 6 Management. Prior to that time, it was just under my name.

 7 Q All right. What kind of work did you do

 8 prior to 1987 as a consulting industrial hygienist in your

 9 own name?

 10 A I consulted for companies in the Metropolitan

 11 Detroit area. I consulted for attorneys in pretty much the

 12 Metropolitan Detroit area. That was pretty much it.

 13 Q And what kind of work would be entailed in

 14 the consulting on behalf of companies?

 15 A Conducting site visits where small companies

 16 generally had a concern regarding occupational exposures of

 17 their employees to whatever was of interest to them or of

 18 concern to them, primarily in the area of chemical

 19 exposures. A variety of plants, small tool and die plants,

 20 small potato chip plant, very diverse. We've got in a

 21 tremendously diverse segment.

 22 Q And on behalf of attorneys?

 23 A Those were primarily toxic tort issues. Not

 24 unfrequently an attorney would call to see if there was a

 25 basis to a claim from an industrial hygiene perspective and

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 1 sometimes there were.

 2 Q Without knowing, I'm going to presume or

 3 guess that the amount of work you did for attorneys prior to

 4 1987 would be a small fraction of the work that you've done

 5 since 1987; is that fair?

 6 A That's fair.

 7 Q Can you give us an estimate of how frequently

 8 you might have given depositions or testified at trials

 9 prior to 1987?

 10 A It's difficult to sort out because when I was

 11 at Ford, I was deposed quite frequently on behalf of Ford

 12 Motor Company and Wyandotte Chemicals Corporation. But

 13 other than that, on behalf of my employer I would say maybe

 14 twice a year for 20 years. I mean, it's a very rough

 15 estimate where I was acting as an expert on behalf of an

 16 attorney in an action.

 17 Q Well, with respect to your work -- your

 18 testimony in connection with Ford and Wyandotte, I get the

 19 impression that would mostly be in the context of worker's

 20 compensation hearings?

 21 A It was at Wyandotte Chemicals, with the

 22 exception of perhaps a few cases that had product liability

 23 issues associated with them on warnings and adequate

 24 disposers of the contents of a product. And at Ford several

 25 were worker's comp. But as I look back on it, the lion's

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 1 share had to do with product liability issues regarding, for

 2 example, carbon monoxide exposure of occupants inside Ford

 3 Motor vehicles or exposure of certain chemicals that Ford

 4 would sell to dealerships that would end up in, say, the

 5 garage of homeowners.

 6 Q Prior to 1987, had any of your consulting

 7 work, either on behalf of other companies or on behalf of

 8 attorneys, involve sulfur dioxide?

 9 A I don't think so. It's been a long, but

 10 nothing comes to mind. It's highly unlikely.

 11 Q Tell me about your post 1987 connection with

 12 Wayne State University.

 13 A I've been on the faculty since. I teach

 14 three courses at Wayne State University. I work in the

 15 Department of Family Medicine, the Division of Occupational

 16 Environmental Medicine. I provide lectures to residents in

 17 Family Medicine and to residents in Occupational and

 18 Environmental residency programs. I conduct site visits

 19 with the physicians to various facilities primarily in the

 20 Metropolitan Detroit area to familiarize the doctors with

 21 types of exposures workers might encounter, people they will

 22 see as patients in their clinics. I'm involved in research

 23 through the department. I'm in the department on an

 24 as-needed basis as a consultant to the department on issues

 25 regarding causation of occupational diseases and injuries.

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 1 Should a physician, for example, have a concern that their

 2 patient might have an occupational component in terms of the

 3 pathology, they will contact me to see if there is any merit

 4 to that.

 5 Q Tell me the names of the three courses that

 6 you teach.

 7 A The first course is Occupational and

 8 Environmental Medicine; the other course is Risk Management;

 9 and the third, which I'm currently teaching, is Principles

 10 of System and Process Safety Management.

 11 Q Principles --

 12 A Of System -- or Systems -- and Process Safety

 13 Management. And in addition to that, I give regular

 14 lectures in the Chemistry of Industrial Processes, that is

 15 to say I don't teach entire courses, just selected lectures,

 16 and lectures of residents in Family Medicine and

 17 Occupational and Environmental Medicine.

 18 Q What is the scope of that -- well, first let

 19 me as you this. You said "and now I'm teaching this." Is

 20 that merely a reflection that this is a course that's

 21 currently in session?

 22 A Yes, that's right. Each of those courses is

 23 offered one a year and they are not coincident.

 24 Q So during one academic year you're always

 25 teaching and it will be one of these three courses?

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 1 A Yes, except for the summer.

 2 Q And tell me about the scope of risk

 3 management. What does that mean?

 4 A Well, some would say in the insurance

 5 industry it's cost containment. The course is part of a

 6 Master of Science Degree in Industrial Hygiene. And the

 7 course is bifurcated into statistics and concepts of risk

 8 management. Risk management is attempts to introduce the

 9 student to processes with injury and harm potential,

 10 starting through hazard assessment, risk assessment, and

 11 then finally the management of risk by a variety of

 12 techniques.

 13 Q And students in this course are pursuing a

 14 Master of Science Degree in Industrial Hygiene, correct?

 15 A Or in chemical engineering. We get students

 16 from engineering schools as well as -- well, actually three

 17 schools: The School of Medicine -- College of Medicine,

 18 School of Engineering, and the College of Pharmacy and

 19 Health Sciences.

 20 Q All right. But fair to say, this is not a

 21 course where you're teaching medical-doctors-to-be.

 22 A No, no, they are. I just finished teaching

 23 the course Occupational and Environmental Medicine.

 24 Q Sticking with risk management.

 25 A Risk management. We will get two or three

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 1 out of maybe twelve students that take courses as an

 2 elective for physicians, but they are not exclusively

 3 medical doctors, no.

 4 Q Let me phrase it a different way. You would

 5 agree with me, I would assume, that the information you're

 6 presenting to the students in this risk management course in

 7 content is not teaching anyone the practice of medicine; is

 8 that fair?

 9 A Not the clinical practice of medicine, that's

 10 fair, that's right. But there are concepts covered in the

 11 course that address medical issues as might be encountered

 12 by a physician specializing in Occupational Medicine.

 13 Q Certainly?

 14 A No, I'm not a physician. I'm not teaching

 15 clinical practice issues, but other issues regarding

 16 occupational medicine, yes.

 17 Q Well, when we say "other issues regarding

 18 occupational medicine," what other issues -- I guess my

 19 impression from hearing you is that the issues that you're

 20 talking about are helping the doctor become aware of risks

 21 and hazards associated, for example, with some of the

 22 chemicals that we've talked about in terms of their

 23 toxicological effects on humans; is that fair?

 24 A That's part of it, yes.

 25 Q Now, Principles of Systems and Process Safety

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 1 Management, is that also a course that, to me, just not

 2 knowing anything, sounds like it would also fall in that MS

 3 Degree in Industrial Hygiene; is that right or no?

 4 A Partially. It can be an elective course for

 5 that degree. It's not a core course for the degree, but it

 6 is a core course for a graduate certificate in safety.

 7 Q And what is a graduate certificate?

 8 A A graduate certificate typically is -- it can

 9 be considered, say, the first twelve to fifteen hours of a

 10 Master of Science Degree. And it's a growing trend

 11 throughout the country, wherein a person might have an

 12 interest in certain things. If they do well grade-wise

 13 during the graduate certificate, that might spur them on to

 14 proceed for additional graduate training, perhaps a master's

 15 degree or doctorate.

 16 Q And I noticed in your own CV you talked about

 17 a post-graduate certificate in hazardous materials

 18 engineering, that was -- a year later you got your Master's

 19 of Science in Chemical Engineering in Hazardous Material and

 20 Environmental Pollution and such. When I read that, I kind

 21 of got the same impression that you were just describing.

 22 It's kind of like a milestone on the path to a Master's of

 23 Science?

 24 A Exactly.

 25 Q Is that fair?

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 1 A Exactly.

 2 Q And once you get a Master's of Science, you

 3 really don't -- you don't dwell on the certificate, is that

 4 fair? Because the Master's of Science is a higher level of

 5 achievement?

 6 A I don't know what you mean by "dwell" on it.

 7 Q It's not separate and apart.

 8 A It's part of it, right.

 9 Q You can't get a Master's of Science in

 10 Chemical Engineering with Hazardous Materials without having

 11 qualified for a post-graduate certificate; is that fair?

 12 A That's a good question. I suppose you could,

 13 I don't know that.

 14 Q How are you going to jump the first twelve to

 15 fifteen hours?

 16 A Well, you take them.

 17 Q See what I'm saying?

 18 A That's right. I guess you would have to. I

 19 never thought about it that way; that's right.

 20 Q Now, this Occupational Environmental Medicine

 21 course, tell me about the scope of that.

 22 A This course has been offered for at least

 23 eight years. I was involved from the get-go, the past seven

 24 to eight years at Wayne State University School of Medicine.

 25 It's a course that introduces the students, or almost I

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 1 would say three-fourth physicians, to those environmental

 2 factors in the workplace that can cause adverse effects in

 3 workers and ostensibly their patients at one time or

 4 another. We introduce the concepts of recognition of

 5 hazards and the nature of those stressors in the workplace

 6 that can cause pathology and adverse effects in people.

 7 It's a survey course addressing chemical factors such as

 8 gases, vapors, dust, fumes, mist, smoke; physical factors,

 9 which would include noise, ionizing and non-ionizing

 10 radiation, hypothermia, hyperthermia, microwaves, lighting;

 11 biological factors and ergonomic factors with an emphasis on

 12 manual material handling operations.

 13 Q And I take it that this course might be of

 14 interest to a student, perhaps a doctor who was either

 15 intent on pursuing a career in addressing health issues

 16 among industrial workers, or, perhaps, doing research on

 17 this kind of toxicology; is that fair?

 18 A That's fair. Most I would say are

 19 practitioners with active practices or that's their

 20 objective. Very few are involved in research as such.

 21 Q And what I think I'm hearing is you share

 22 with these students your perspective on things that are

 23 going on in the industrial world much the same way that you

 24 explained to me a few moments ago about the core processes

 25 at that one foundry and the chemicals that are involved in

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 1 the various manufacturing processes, and essentially

 2 highlight to them to increase their awareness of these

 3 potential agents that can cause injury to industrial

 4 workers. So that when Joe Industrial Worker comes in their

 5 office and when the doctor takes a history and they say what

 6 do you do for a living and he says, "Well, I work in a steel

 7 mill," a light goes off in the doctor's mind and it reminds

 8 the doctor to check various things that might be existent to

 9 see whether that occupational exposure may have a factor in

 10 what's going on medically with the patient; is that fair?

 11 A That's fair.

 12 Q Now, the converse of that is -- and what I

 13 want to understand is -- I take it that you're not teaching

 14 the doctors medicine in terms of how to be a doctor in

 15 diagnosing, treating, monitoring, prescribing, whatever the

 16 care requires for the proper treatment of a patient that's

 17 been exposed to a chemical that you might well discuss in

 18 your class; that part of it is not part of your course; is

 19 that fair?

 20 A That's fair.

 21 Q Okay. How would you break down for me your

 22 time with respect to the time you spend teaching your course

 23 and -- I'll say that. I know it might me three courses, but

 24 at any one time you're teaching one course -- did I get that

 25 right?

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 1 A Yes. Except for the summer months.

 2 Q When you're not teaching?

 3 A Right.

 4 Q But occasionally you're going to teach

 5 workshops or fragments of these courses to smaller groups

 6 that have a particular interest in that subject?

 7 A Yes.

 8 Q So let me just over generalize and say that

 9 at any point in time you may have your academic hat on or

 10 you might have your Critical Risk Management hat on. What

 11 would you tell me would be the breakdown of your time

 12 between those? Ten percent wearing this hat, ninety percent

 13 wearing that hat? How would that break out?

 14 A I would say over a year, fifteen percent of

 15 my time -- maybe even 20 -- let's say fifteen percent of my

 16 time is in the area of teaching and research, but that's

 17 very broad. That would include courses that I teach,

 18 lectures to physicians in our department, that would be

 19 research activities with my colleagues. I would say fifteen

 20 to twenty percent and that's been fairly steady over the

 21 years.

 22 Q Now, tell me a little bit about this Wayne

 23 State University School of Medicine. Your area where you

 24 teach is in a division of the Department of Family Medicine;

 25 is that right?

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 1 A That's right.

 2 Q Do you teach in any other divisions or

 3 departments of the University?

 4 A Yes.

 5 Q What is that?

 6 A The course that we were discussing,

 7 Occupational Environmental Medicine, is offered through the

 8 Department of Community Medicine. And it's jointly offered

 9 through the School of Pharmacy and Health Professions -- or

 10 Health Sciences, pardon me. So I have an appointment in

 11 both schools; that is to say that the School of Medicine and

 12 the College of Pharmacy and Health Sciences. The other two

 13 courses are exclusively through the School of Pharmacy and

 14 Health Sciences. They are all through the graduate schools

 15 of each of those departments.

 16 Q Let me see if I've processed what you said.

 17 I take it, then, that we can say that all of these three

 18 courses are offered through the College of Pharmacy and

 19 Health Sciences of Wayne State University; however, the

 20 Occupational and Environmental Medicine course is also

 21 offered through the Division of Occupational and

 22 Environmental Medicine, which is part of the Department of

 23 Family Medicine?

 24 A That's right.

 25 Q Is that right?

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 1 A That's right.

 2 Q Now --

 3 A Sounds convoluted.

 4 Q No, I understand. Is your title -- it's

 5 listed here as "adjunct professor and resident lecturer."

 6 Is that the same in both the College and Pharmacy of Health

 7 Sciences as well as the Division of Occupational and

 8 Environmental Medicine of the Department of Family Medicine?

 9 Or is the title of those teaching posts different?

 10 A That's a good question. I don't know.

 11 Q The reason I ask, I looked at -- I was

 12 surfing on the internet and I found in this College of

 13 Allied Sciences that they've got professors, associate

 14 professors, adjunct associate professors, assistant

 15 professors, adjunct assistant professors, clinical assistant

 16 professors and they've got names under all of these.

 17 A Is this at Wayne State?

 18 Q Yes, sir. And you're listed not under any of

 19 those titles, but as what they call an adjunct instructor.

 20 Now, I don't know if that makes any difference. Is that --

 21 A It doesn't make any difference to me. I

 22 don't care.

 23 Q Okay. But so I guess what I'm saying is your

 24 title hasn't changed in any respect?

 25 A I really don't know. I cannot be a clinical

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 1 professor because I'm not a physician. I don't teach

 2 clinical medicine. Other than that, I don't know the

 3 distinction between the various titles.

 4 Q Okay.

 5 A My students call me doctor, but I'm not.

 6 Q Well, with the complexity of the subject

 7 matter that you're teaching, I'm not surprised. Then you

 8 went for a second Master's in Chemical Engineering and you

 9 got that degree in 1992. Was that also kind of working at

 10 night or how was that?

 11 A Part-time at night, yes.

 12 Q And I guess I'm -- why was the interest there

 13 in chemical engineering as opposed to -- can you go -- can

 14 one pursue a doctorate in your first Master's?

 15 A At some universities I believe that's

 16 possible. A Doctorate in Industrial Hygiene is not

 17 available in the Detroit area. I believe the University of

 18 Michigan offers a doctorate. I had no desire to become a

 19 PhD, if you will, in a very specialized area. I chose this

 20 program because I felt that I could provide more technical

 21 services to my clients. Quite simply, I didn't want to be

 22 the world's expert in a very narrow area, that would be of

 23 little benefit to my clients.

 24 Q And meanwhile, while you're doing this

 25 additional coursework, you did an internship at -- between

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 1 1990 and 1992 in Hazardous Medical Biohazard Chemical Waste

 2 Management. Can you tell me about that?

 3 A That was part of the degree requirement. I

 4 arranged to do that internship with the Detroit Medical

 5 Center. Having an office within one of their major

 6 buildings, I saw some issues that I was also being consulted

 7 on by numerous people throughout the facility. So I thought

 8 it was natural to combine that internship through the course

 9 requirements and my professional responsibilities.

 10 Q The curriculum vitae indicates at some point

 11 also in your -- I guess in the signature block,

 12 "professional engineer," what does that mean?

 13 A A person who has completed engineering

 14 courses and practices engineering in the area of a

 15 specialty. I focus on chemical safety engineering and

 16 hazardous materials.

 17 Q Are you licensed as a professional engineer

 18 in the State of Ohio?

 19 A No, I'm registered as a safety engineer, but

 20 I'm not a licensed professional engineer.

 21 Q And where is that registration?

 22 A It's in Illinois with the America Society of

 23 Safety Engineers in the Professional Engineers Division.

 24 Q Are you licensed as a professional engineer

 25 in any state?

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 1 A No, I'm not.

 2 Q And you agree with me that that's a different

 3 thing from the safety engineering licensing that exists in

 4 Illinois?

 5 A As a CSP, you mean, a Certified Safety

 6 Professional?

 7 Q Yes.

 8 A Yes, they're different, that's right.

 9 Q When I think of professional engineer, I

 10 think of, generally speaking, first someone takes the

 11 engineer in training exam. Then after satisfying the work

 12 experience requirement, they sit for professional engineer.

 13 And certain your Master of Science in Chemical Engineering

 14 would be one of those building blocks to that. But I take

 15 it I don't hear you saying you have sat for the exam in any

 16 particular state?

 17 A No, I haven't.

 18 Q Too busy working?

 19 A If we could compare it to physicians, I

 20 suppose I could say I'm board eligible, that would be the

 21 most appropriate designation.

 22 Q Is there any other employment that is not

 23 listed on your CV?

 24 A No, I think I was employed -- and, in fact,

 25 still am -- at Karmanos Cancer Institute, a research on

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 1 prostate cancer. That project is winding down.

 2 Q That is in there.

 3 A That is in there? No, there is nothing else.

 4 Q Well, let me -- since you bring that up,

 5 let's explore it just for a few moments. I take it in that

 6 event you were -- what's known in the business as the

 7 principal investigator and you're supervising, as I

 8 understand it, three other people who are investigating some

 9 aspect of that?

 10 A Excuse me, I was one of four principal

 11 investigators. There are three other people as well.

 12 Q And your role in that was what?

 13 A My role was to supervise industrial

 14 hygienists in establishing retrospectively exposures of

 15 people with prostate cancer in controls. Establish an

 16 occupational history for these gentleman over their life.

 17 Q And was this the data that would then in turn

 18 be reviewed by other investigators who were physicians?

 19 A That will be late in the process. Now the

 20 data are being evaluated by biostatisticians.

 21 Q Epidemiologists?

 22 A Well, then that would be phase three, the

 23 epidemiologist. And then the last phase would be joint

 24 where we all get back together and look at it along with

 25 physicians, the medical implications of occupations and

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 1 prostate cancer.

 2 Q I've reviewed the publication on your CV. Is

 3 this list complete or do you know -- well, let me let you

 4 look at Exhibit 72, which we don't have before us today,

 5 whether there are additional publications on that?

 6 A There might be, say, two or three additional

 7 publications within the University. But beyond that,

 8 nothing.

 9 Q Now, again, as a layman, looking at this, I

 10 didn't see anything in list of your publications that dealt

 11 with sulfur dioxide in any respect. Did I miss that?

 12 A Well, there wouldn't be anything in the

 13 title. I've written a book and there might be some problems

 14 within that book. As I sit here, I don't know if there are

 15 problems in that book regarding SO2 or not.

 16 Q Which book are you talking about?

 17 A It's in my CV. It's called "Air Contaminants

 18 and Industrial Hygiene Ventilation."

 19 Q Could you take a look and point out which one

 20 to me?

 21 A I'm going to have to go through each one, I'm

 22 sorry.

 23 Q There is one here that talks about problems?

 24 A Page what? I'm sorry.

 25 Q Page 8, one is "Problems with Technology and

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 1 Measurement?"

 2 A No, page eight, a little more than halfway

 3 down, "Air Contaminants and Industrial Hygiene Ventilation,

 4 CRC Press."

 5 Q Press and Lewis Publishers?

 6 A Yes.

 7 Q Okay. And what is that book about?

 8 A It's a book that contains 450 problems,

 9 solved problems on primarily air contaminants in the

 10 workplace, but air pollution issues as well in the

 11 community, primarily industrial hygiene issues, and problems

 12 regarding ventilation as a control method for those air

 13 contaminants. The example problems are designed to help the

 14 reader address these issues. There are some introductory

 15 chapters on concepts. For the most part it's a workbook of

 16 450 problems.

 17 Q And so that might have some sulfur dioxide --

 18 A It might.

 19 Q -- in it. As we sit here, is that the only

 20 one you could think of in terms of what might otherwise

 21 discuss or focus on sulfur dioxide?

 22 A That is the only one. And, of course, in my

 23 reports to Wyandotte Chemicals and Ford Motor, but those

 24 were internal documents. There were several of those. And

 25 for the people I supervise. But other than that, nothing.

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 1 Q Okay. And really I'm just trying to confirm

 2 that I haven't missed something because of my inability to

 3 decode some of this language. But there is nothing related

 4 or focuses on sulfur dioxide with the same type of -- say,

 5 for example, you have written one of things here on

 6 polychlorinated biphenyls, which that probably goes into

 7 whole the PCB thing in great detail. And what I think I'm

 8 hearing is you haven't done a similar work or monograph -- I

 9 love that word -- on sulfur dioxide?

 10 A That's right.

 11 Q Now not withstanding that, there is nothing

 12 in there, other than that book of the problems, that

 13 handbook, is there anything else that you have written that

 14 you think is particularly pertinent to the opinions that you

 15 have expressed in your report of this case?

 16 A No.

 17 Q Now, in your CV it talks about presentations

 18 that you made to hospitals. Based upon what we talked about

 19 before, I'm guessing that that's kind of like what we

 20 discussed earlier where you take a fragment of one of the

 21 courses that you teach and present that narrow topic to

 22 interested groups among these various institutions; is that

 23 fair?

 24 A Well, perhaps for half of the presentations I

 25 give to hospitals. Sometimes they are very specific and the

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 1 subject is -- I won't say esoteric -- but it's beyond the

 2 scope of the courses I teach because of the detail I get

 3 into. The fitting of respirators for nurses and physicians

 4 that might have patients with tuberculosis, it's not

 5 something I cover in the course, but it's so detailed I'd

 6 have to cover it.

 7 Q Certainly, certainly. Anything in those

 8 presentations that's germane or otherwise relevant to the

 9 opinions that are expressed in your report, just for

 10 completeness?

 11 A No.

 12 Q Okay. Before the deposition began, we were

 13 talking about depositions that you have done and you were

 14 kind enough to give us some information regarding the trials

 15 in which you have testified in the last 13 years. Before we

 16 get that information, can you tell me what information you

 17 have started to collect with respect to deposition

 18 testimony?

 19 A I've started a file. I believe it's sketchy

 20 because I'm trying to build it on my recall and going

 21 through records and there probably will be omissions. I'm

 22 doing it by at least part of the case caption, by the

 23 attorney that retained me, the nature of the claim, and the

 24 year and the location, generally by city. I believe those

 25 are the things I've started to record and will provide a

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 1 list. I don't know if it's any more detailed than that.

 2 Q I guess that, generally speaking then, when

 3 you do work for attorneys, you're generally in state courts

 4 of some kind?

 5 A I have been in federal and state.

 6 Q Has this ever come up in the past? Because

 7 as long as I've been around, it's not terribly long, but as

 8 long as I've been around the federal requirement is an

 9 expert witness has to have this -- provide this information

 10 about deposition testimony. Has that ever -- I realize it's

 11 incumbent upon the other side to ask you for it, but nobody

 12 has ever asked you in the past?

 13 A No, I first learned about it about two years

 14 ago. Apparently this federal rule has been around for a

 15 long time, but I wasn't aware. I've been asked what percent

 16 of your time and what type of cases, but I wasn't aware

 17 until two years.

 18 Q We're going to get that, too.

 19 A There is no way I can go back thirty years.

 20 Q No one is asking you to. I guess I want to

 21 get a sense, in preview, with the hopes of dispensing of a

 22 telephonic follow-up to this, to learn what I can about your

 23 depositions.

 24 A Sure.

 25 Q Let me back up a step and just ask you with

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 1 respect to your work for -- can I call it CRM?

 2 A CRM is fine, sure.

 3 Q Your company, how would you breakdown the

 4 percentage in terms of consulting that you do on behalf of a

 5 company, say, that wants you to come in and do an audit or

 6 some of type of service for them, as distinct from

 7 consulting services that you perform on behalf of a company

 8 or insurance outfit or a lawyer where you're providing

 9 litigation services as -- you know, in this field?

 10 A That is a question that comes up now and

 11 then. I would say 20 to 25 percent of my consulting work is

 12 in the area of serving as an expert on issues such as this.

 13 And 15 to 20 percent would be in the area of teaching and

 14 research. And the balance, roughly 60 percent, would be in

 15 the area of providing industrial hygiene consultation

 16 services to industrial firms, insurance companies,

 17 government agencies, things like that.

 18 Q Okay. And I take it from one of the lines in

 19 your report that you get -- you either give a deposition or

 20 testify in a trial about once a month; is that --

 21 A I would say -- not at trial, I'm deposed on

 22 average once a month.

 23 Q I meant either.

 24 A Right. I would say once a month, yes.

 25 Q And so what kind of records do you think you

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 1 have with respect to -- let's talk about the volume first.

 2 Maybe a list of going back two years of 20, 25 depositions

 3 where you have given in the past?

 4 A That's about right, I would say.

 5 Q Do you have any transcripts of any

 6 depositions that you have been given?

 7 A Not as a matter of course. In fact, I'm

 8 rarely given a transcript of my depositions. I don't ask

 9 for it and it's rarely provided to me and I really don't see

 10 a need for it. I'm assuming it's preserved somewhere.

 11 Q How about your trial testimony? Do you have

 12 any transcripts of areas where you've testified at trial?

 13 A Nothing comes to mind, I mean --

 14 Q How many cases would you believe you have

 15 right now that are active? And by that I mean you have

 16 formed a consulting relationship: Some may be in the early

 17 phases where you're viewing material, others may be like

 18 today you're preparing a deposition, others may be hopefully

 19 toward the close of the relationship where you're testifying

 20 at trial next month. How many cases, using that definition

 21 of active, would you consider you have?

 22 A I'm visualizing the second desk in my office

 23 because that is where they sit. And I have to go through

 24 how many rows by rows. I would say 15. But having said

 25 that, I might find out that the case settled a long time

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 1 ago. So when I learn of that, then I pitch it. But I would

 2 say about 15. As far as I can tell, they are active.

 3 Q And when you provide those kinds of

 4 litigation consultation services, if I may use the phrase,

 5 you're wearing your CRM hat at that time, correct?

 6 A I don't know if I'm wearing any hat. I'm me.

 7 I'm giving expert opinions. Do I bill through CRM? Is that

 8 what you're getting at?

 9 Q That's one way to answer.

 10 A Yes, the checks are payable to Chemical Risk

 11 Management.

 12 Q So conversely, you're not here on behalf of

 13 or with the stamp of approval of Wayne State University, for

 14 example, although you do a significant amount of work with

 15 them, correct?

 16 A Right.

 17 Q And I can see, for example, at the top of

 18 your letter there is a couple of logos, if you will. The

 19 one piece that says Wayne State University -- and I

 20 understand you probably use that letterhead to send a wide

 21 variety of different correspondence and some may be germane

 22 to Wayne State and some to your CRM work, but in this

 23 particular case one should not be confused into thinking

 24 that Wayne State University has any interest or other role

 25 in this case; is that fair?

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 1 A That's fair.

 2 Q Do you ever testify in criminal matters?

 3 A There have been a few, nothing recent.

 4 Q What kinds of cases would you get involved in

 5 in a criminal environment?

 6 A One was a murder case. And there have been a

 7 few other over the years that have been infractions of EPA

 8 issues where the sanctions are more criminal than civil.

 9 Q And when you say EPA infractions, what are we

 10 talking about? Spills or --

 11 A That sort of thing, right.

 12 Q And in the murder case, what was that about?

 13 A Fascinating in that the convicted murderer

 14 was fingered by his Nth wife in some island off Tahiti. He

 15 had be on the lamb for a long period of time. He was

 16 fleeing from all sorts of jurisdictions and he was

 17 prosecuted for poisoning his first wife -- first or second

 18 wife and found guilty.

 19 Q What was the agent?

 20 A Succinylcholine,

 21 S-U-C-C-I-N-Y-L-C-H-O-L-I-N-E.

 22 Q And where does one find that? I won't even

 23 try to pronounce it.

 24 A It's not an over-the-counter drug. It's a

 25 muscle relaxant. You could probably get it from a hospital

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 1 pharmacy, but not your corner drugstore. It's used in

 2 certain medical procedures.

 3 Q Is that a Ferrari-type agent?

 4 A Yes, it would be, interesting way of looking

 5 at it. The man who is turning big rocks into little rocks

 6 right now was a pharmacologist and he understood that this

 7 chemical broke down quite quickly in the human body and was

 8 essentially non-detectable.

 9 Q And what was your role --

 10 A I was just trying to thing of the television

 11 program, it's still on. Some television show where they

 12 posts criminals.

 13 MS. STORM: Unsolved Mysteries.

 14 A This guy was a pilot; he was a clown; he was

 15 a carpenter. He was also PhD pharmacologist. He did all

 16 sorts of things. He was an airplane pilot, I believe. Your

 17 question? I'm sorry. Fascinating that, hey, I know that

 18 man.

 19 Q Your role in the litigation?

 20 A It was a very minor technical role about the

 21 use of a gas chromatograph and a mass spectrometer in

 22 analyzing materials.

 23 Q I would imagine that those are staples of

 24 your laboratory?

 25 A Not my present laboratory.

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 1 Q But at Ford?

 2 A Yes. There was some debate on the Fry Rule

 3 and that's why I was called into it.

 4 Q I'm guessing that you would agree that the

 5 criminals matters that you have been involved in as a

 6 witness have no bearing on the opinions and conclusions that

 7 you have in this case?

 8 A No, they don't.

 9 Q Now, with respect to the civil matters that

 10 you have testified in -- have you testified in any -- in any

 11 litigation or consulted in any case relating to litigation

 12 that had to do with the inhalation of sulfur dioxide?

 13 A Before I get to that, I should back up. I've

 14 been involved now and then on Dram Shop issues where there

 15 have been contests regarding how inebriated the person was

 16 or was not. I assume that would be criminal.

 17 Q Where a person is prosecuted for serving

 18 someone who is intoxicated?

 19 A And I'm called in as an expert on the most

 20 probable number of beverages consumed, blood alcohol as a

 21 function of time and diet, type drink and when a person had

 22 it -- I don't know if that is criminal or civil -- DUIs,

 23 that sort of thing.

 24 Q And I appreciate your -- you have license, if

 25 you remember something in the depo that relates to an

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 1 earlier question, feel free to supplement your answer. I'm

 2 grateful for that. I'm taking that not withstanding

 3 remembering about those cases, you still agree that none of

 4 the criminal matters you appeared in as a witness are

 5 relevant to your opinions in this case?

 6 A They are not.

 7 Q Let's go to the civil matter then. And I was

 8 asking you -- I think the question on the table dealt with

 9 have you ever testified or consulted -- and I don't want to

 10 make it -- limit it to testimony. Have you ever consulted

 11 with someone involving litigation where the facts involved

 12 alleged inhalation of sulfer dioxide?

 13 A Nothing comes to mind. I would like to think

 14 I'd remember that, but nothing comes to mind.

 15 Q Looking at the list that you provided -- and

 16 again, this is just -- the list you gave us to this point is

 17 just trials, correct? Trial testimony?

 18 A Yes.

 19 Q I didn't see anything on this list that stuck

 20 out to me as sulfur dioxide related. Am I right in that or

 21 did I miss something?

 22 A No, you didn't.

 23 Q Let me ask you a couple of the abbreviations

 24 on this list. OBS, can you tell me what that is in the

 25 reference to occupational asthma and OBS.

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 1 A Organic Brain Syndrome.

 2 Q And solvent vapor induced RADS?

 3 A Reactive airways dysfunction syndrome.

 4 Q Okay. Have you ever been retained by

 5 Ms. Storm in the past?

 6 A No.

 7 Q Have you ever retained by a member of her

 8 firm?

 9 A No.

 10 Q Have you ever been involved in litigation

 11 where Ms. Storm or another member of her firm represented a

 12 party other than one that called you, but you worked

 13 together on the case?

 14 A No.

 15 Q When were you retained in this case?

 16 A I can't give you a specific date, I'm sorry,

 17 I could check with Expert Resources. As I sit here, I don't

 18 know the date. I'd be guessing.

 19 Q What is Expert Resources?

 20 A They are an agency in Illinois that provides

 21 litigation assistance, experts I suppose, in any matter to

 22 those who need expertise.

 23 Q And was that your first contact regarding

 24 this case was an inquiry that reached you from Expert

 25 Resources?

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 1 A Yes.

 2 Q And is that an organization that you -- I may

 3 not be using the right words -- you register with them for a

 4 particular, say, I'm available in these particular fields.

 5 And if they have someone that needs an expert in those

 6 particular fields, they call you up and find out if you're

 7 interested in looking at the case?

 8 A Yes.

 9 Q How long have you been affiliated with Expert

 10 Resources?

 11 A Perhaps 10, 12 years, maybe more.

 12 Q Pretty much going back to the creation of

 13 CRM?

 14 A Perhaps, I'm not -- I really can't give you a

 15 specific date, but it's certainly ten years.

 16 Q Are you affiliated with any other agencies or

 17 companies like Expert Resources, but perhaps in another

 18 state or another discipline?

 19 A There are two. Technical Advisory Service

 20 for Attorneys in Pennsylvania and there is another one also

 21 in the same city, Blue Bell, Pennsylvania, Technical Network

 22 Services, I believe, is the name of the organization.

 23 Q Do you keep a record of the time spent on a

 24 particular case?

 25 A Not -- well, yes, I do. There are billing

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 1 statements in this case that go to Expert Resources, right.

 2 Q Let me make sure I understand. You fill out

 3 an invoice that says a date and an activity, looked at this

 4 information, and you tell them how many hours, and then you

 5 multiply that by whatever hourly rate you charge, and then

 6 everything gets totalled up and that's your bill or invoice?

 7 A That's right.

 8 Q And those, in this case, you are sending to

 9 Expert Resources?

 10 A Yes.

 11 Q Can you tell me what your rate is?

 12 A There are two rates. Two hundred dollars per

 13 hour for all work that I do on the case with the exception

 14 of depositions and trial and that is $300 per hour and

 15 expenses at cost. Expert Resources, of course, adds their

 16 administrative charge or markup or whatever that is.

 17 Q And what rates do you charge if say an

 18 attorney down the street in Dearborn, Michigan, knocked on

 19 your door and came in through the door and said, "I need

 20 your help, I've got this case that involves some benzine and

 21 I don't know what I'm doing and I need your help with the

 22 science aspect," what rate does that person get charged?

 23 A The same rate.

 24 Q And --

 25 A I should say the way you describe that

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 1 scenario, I might invest two, three or four hours into

 2 something for which there is no charge, sort of a pro bono

 3 thing. If it's a non-issue, I let it go at that.

 4 Q Essentially, you are doing that to see

 5 whether the activity or whatever happened warrants further

 6 inquiry?

 7 A Exactly.

 8 Q Do you know how much you have billed Expert

 9 Resources to date?

 10 A Not offhand, no.

 11 Q Well, do you know how much you billed prior

 12 to October 27, 2001, when you issued your report?

 13 A I'd be guessing. They are in my records. I

 14 don't know as I sit here.

 15 Q Can you give me a ball park of the number of

 16 hours you anticipated were spent prior -- from whatever time

 17 you got retained until October 27, 2001, when you issued

 18 this report, how many hours you spent on the -- on

 19 formulating it?

 20 A It's an absolute guess, I want the record to

 21 reflect that, 15 hours. It could be 20, it could be ten. I

 22 don't know.

 23 Q And that helps me with that. Really, what

 24 I'm interested in is are we talking about -- and you'll

 25 satisfy my interest at this point with an understanding of

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 1 the order of magnitude. I don't know if we're talking about

 2 tens or a hundred or 500. But if I say it's between ten and

 3 10 hours and you're comfortable with that range, not holding

 4 you to a specific number?

 5 A Yes, that's right.

 6 Q Thank you. And how much time -- again, you

 7 give me the range. I'm not here to put the numbers in your

 8 mouth. You give me a range for the number of hours that you

 9 spent after this report was complete until the present.

 10 A Well, short of today and yesterday, I

 11 reviewed the file for half of an hour about three nights

 12 ago.

 13 Q And that's it?

 14 A That's it.

 15 Q All right. And I take it that your activity

 16 three nights ago was to brush up on this for the deposition?

 17 A That's right.

 18 Q And when you reviewed the file, as you say,

 19 what did you review?

 20 A Pretty much everything in front of me.

 21 Q All right.

 22 A I have to admit, this is not my complete

 23 file. I'm in the process of consolidating three offices

 24 into two and there are some records that I just didn't

 25 retrieve for today's meeting.

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 1 MR. SCOTT: Scott, are you going to mark the

 2 file -- off the record.

 3 (Off-the-record discussion.)

 4 BY MR. THOMAS

 5 Q Sir, if you would, tell me your understanding

 6 of what happened on March 17, 1999, with respect to this

 7 case.

 8 A I guess who, what, why, when and where,

 9 right? On March 17, 1999, Mr. Rick Newman, an employee of

 10 Viox, was in Building 179 at the Procter & Gamble Ivorydale

 11 Plant. He was in the process of insulating a piece of

 12 equipment, mechanical equipment. It was later in the

 13 afternoon, approximately 3:30 as I recall, thereabouts --

 14 I'm not sure of the time, pardon me. I'm not sure of the

 15 time. And the records reflect that there was a release of

 16 liquid sulfur sulfer dioxide, which rapidly vaporized and

 17 intruded into his workstation. He was exposed to sulfer

 18 dioxide gas for an undetermined amount of time. And,

 19 subsequently, he was diagnosed with chemical pneumonitis.

 20 And I guess that's why we're here today.

 21 Q You used the word "rapidly" in terms of the

 22 liquid sulfer dioxide, what are we talking about there?

 23 A Well, liquid SO2, the boiling point is about

 24 14 degrees. It's very low. It has significant vapor

 25 pressure on the order of about 2300 millimeters of mercury.

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 1 So liquified SO2 will flash rather quickly. It can vaporize

 2 rapidly at room temperature.

 3 Q So to a layman, me, what I hear you saying is

 4 that when you have liquid SO2 and you allow it to expand in

 5 a container, it will go to a gas at temperatures of, I

 6 think -- normal temperatures about 14 degrees, we're talking

 7 about Farenheit, I guess?

 8 A Well, even lower than that. You'd have to

 9 get down to absolute zero where it wouldn't vaporize at all.

 10 As the temperature increases, the rate of vaporization

 11 increases.

 12 Q So when you said 14 degrees, that is the

 13 boiling point at which there is a quantity of sulfur

 14 dioxide. It's going to go to a gas (indicating) fairly

 15 quickly -- I snapped my fingers.

 16 A In an open system where there are no pressure

 17 constraints and temperature constraints, yes. Within the

 18 system that it's contained, there would be a two-phase, a

 19 liquid and a gas phase.

 20 Q You also said there was an exposure for an

 21 undetermined amount of time. I thought I read in your

 22 report that there was an exposure for one to two minutes?

 23 A That is my belief. It's the most likely

 24 exposure time of Mr. Newman. I don't know that. I suspect

 25 nobody has an exact precise duration of exposure.

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 1 Q Okay. But if you would, tell me what facts

 2 lead you to that belief that it was one to two minutes?

 3 A It really is a reflection of my experience

 4 with studying dozens and dozens of work sites and hundreds

 5 of workers exposed to SO2 under a variety of conditions.

 6 I've found situations where workers are not exposed to

 7 anything above the ambient concentration of SO2 and

 8 situations where there has been a gross overexposure and a

 9 variety of physiologic responses to those exposures. And

 10 they can be quite variable. One thing about sulfer dioxide

 11 is that the six people in this room exposed to the same

 12 concentration more likely than not would have extreme,

 13 depending on the dose of course and dose response or dose

 14 rate, considerably different reactions. Some might not be

 15 so affected as others. For whatever reason, it's a

 16 peculiarity of sulfer dioxide that I have not seen with

 17 other gasses with the exception of ammonia. But based on my

 18 review of the records that were provided to me and my

 19 interview with Mr. Newman, I believe that he was exposed for

 20 at least a minute and perhaps longer.

 21 My review, I should say, of an interview of

 22 Mr. Newman is that I believe there was a time he didn't

 23 recognize he was being exposed and that is not at all

 24 surprising with sulfer dioxide. I would like to temper

 25 those remarks and say, for example, this room was suddenly

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 1 inundated with one percent sulfur dioxide gas at ten

 2 thousand parts per million. All of us would respond the

 3 same way. But there are lower concentrations of the gas

 4 where there is a variability in human response.

 5 Q It's my understanding that the gas sulfur

 6 dioxide is detectable to the human nose at a concentration

 7 of 0.33 parts per million, according to that organization

 8 that I think is the American Industrial Hygiene Association;

 9 is that right?

 10 A I'm a member of that organization and have

 11 been for 35 years or so or -- I don't know, since '68.

 12 There is a range of responses of the human nostril to sulfer

 13 dioxide and they are sorted out into two categories. One,

 14 detection. And, two, recognition. The range for detection,

 15 for example, is I notice something in the atmosphere, I have

 16 no idea what it is, but I'm being affected by it. Where

 17 recognition is not only am I affected by it, but more likely

 18 than not it's this or that. It's a clear demarcation

 19 between -- there is a thing between -- there is a link

 20 between what the person perceives and what the agent is. So

 21 there are two sets of values given as a range by the

 22 American Industrial Hygiene Association.

 23 Q And detection, that is that first experience

 24 that you talked about, "I smell this odor, I'm not sure I

 25 recognize it;" that is 0.33 parts per million, correct?

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 1 A The range for sulfur dioxide for detection is

 2 .33 per five parts per million and the range for recognition

 3 is 3.8 to 5.0. And there are geometric means, that is

 4 50 percent above and below of 2.7 and 4.4 parts per million

 5 respectively. You could say with sulfer dioxide it -- well,

 6 it has an odor. I think it's probably more appropriate to

 7 refer to it as an irritating quality with an odor that could

 8 be different from one person to the next. I've had workers

 9 describe the odors in different terms. Smells like -- well,

 10 John smells like this and Bob smells it like that.

 11 Q And both John and Bob agree it smells very

 12 bad, don't they?

 13 A It depends on the concentration. It depends

 14 on a lot of things. If they are like me, I can't smell it

 15 anymore since by surgery. Sadly, I lost all my sense of

 16 smell.

 17 Q With respect to these numbers, tell me what

 18 you're reading from?

 19 A I'm reading from the American Industrial

 20 Hygiene Association's publication entitled, "Odor Thresholds

 21 for Chemicals with Established Occupational Health

 22 Standards."

 23 Q And the date of that?

 24 A 1989. There might a more current edition,

 25 but this is 1989.

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 1 Q Have you ever smelled sulfur dioxide?

 2 A Many times, yes.

 3 Q And at what concentration have you smelled

 4 it?

 5 A It's difficult to do that in the field. The

 6 studies that are reported here are controlled studies in

 7 laboratory settings. The reason I say that, the research

 8 olfaction physiologists can prepare a known concentration in

 9 a controlled environment and can ask the people to sniff it

 10 and detect certain things. When I've been in the field

 11 taking air samples and measuring ventilation for worker's

 12 exposures, my air sampling device might run for anywhere

 13 between five and 25 or 30 minutes, so I get an average

 14 result during that period. And during that time it wouldn't

 15 at all be unusual for the gas concentration to fluctuate.

 16 It's a long winded way of saying I get an average number and

 17 during that time frame I might or might not smell it. So I

 18 can't give you a snapshot, a pinpoint time of concentration.

 19 Having said that, I can detect and clearly recognize S02 at

 20 about eight to 12 parts per million.

 21 Q And please don't confuse my question. I'm

 22 not -- it's not your fault, it's my fault for not being

 23 clear. I'm not asking you at what concentration you were

 24 able to detect the odor, the pungent odor of sulfer dioxide.

 25 I asked you a question and you said that you smelled sulfer

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 1 dioxide on a variety of occasions. Tell me about the

 2 concentration levels at which you have smelled that gas?

 3 A Well, I don't know all of them. There was a

 4 release at a foundry, a Ford foundry in Windsor, a massive

 5 release. I didn't take an air sample. I would expect the

 6 concentration was several hundred parts per million. I

 7 don't know. I was evacuating the area. Had I taken an air

 8 sample, I wouldn't be surprised if I was getting several

 9 hundred ppm's of SO2 gas, but that is a guess. I have

 10 detected it as an average concentration over say a 15 minute

 11 air sample period clearly at five parts per million, maybe

 12 closer to eight, but it's quite variable. I think I have a

 13 higher threshold for detection and recognition than other

 14 people do, that's been my experience. And I find the same

 15 with ammonia gas as well.

 16 Q Is it fair to say that the phenomena of

 17 desensitization through chronic exposure to a particular

 18 smell or to sulfer dioxide in particular, that say might be

 19 common in workers at a foundry, that's not something that

 20 would affect Mr. Newman's ability to smell this gas on

 21 March 17, 1999?

 22 A Correct, that would be very speculative on my

 23 part to speak to what he would or would not have responded

 24 to. Clearly, desensitization or olfactory fatigue, these

 25 things do occur with many gasses, not all.

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 1 Q What I'm saying is you're unaware of any

 2 facts where Mr. Newman was exposed to sulfer dioxide over

 3 the course of many days, months, weeks, which would result

 4 in his being desensitized through chronic exposure?

 5 A I'm not, no.

 6 Q So you agree with me?

 7 A I agree.

 8 Q That's all I was asking.

 9 A Sure.

 10 Q All right. Let's talk for a few minutes

 11 about the materials that you reviewed. And I'm looking on

 12 the first page of your report. You can look at that and

 13 follow along with me. There is a paragraph that begins, "I

 14 studied numerous documents and records." Is this a complete

 15 list of the materials that you looked at prior to issuing

 16 your October 27 letter?

 17 A I received additional records since then, not

 18 many, but some. That would be a complete list, yes.

 19 Q What would be the additional records?

 20 A The report of Mr. Kaminisk, I believe. Dr.

 21 Hirsh's deposition. I mean. I really have to go to the

 22 transmittal letter from Mrs. Storm to specifically identify

 23 them and I don't have that handy. But there was a letter to

 24 me from her in February, I believe maybe a couple of

 25 letters, that had additional documents included with them.

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 1 Q Just so your answer is complete, let me give

 2 you that letter.

 3 A Yes, these would be the reports I mentioned.

 4 Mr. Kaminiski, Mr. Kapichi, and Drs. Donovan, Goyle and

 5 Brownstein.

 6 Q And did you review those?

 7 A Yes.

 8 Q And let me just -- I'll get to it in detail

 9 if we need to. Did your review of any of those materials

 10 cause you to, as I think you say, you reserve the right in

 11 your letter -- you "reserve the right to augment, modify

 12 recant or buttress these opinions if additional evidence or

 13 facts are shared with you." Do you need to do any of those

 14 things on the basis of the additional information that you

 15 have received?

 16 A No.

 17 Q Tell me what -- well, before we get to that.

 18 Let me -- have you reviewed any pleadings in this case,

 19 legal papers that anyone has filed?

 20 A Well, there were responses to

 21 interrogatories; that is not really a pleading. No, I can't

 22 say I have.

 23 Q You've already told us about those. You told

 24 us about those?

 25 MS. STORM: In the interest of making a correct

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 1 record, he was mailed a copy of the complaint. I'm not sure

 2 what pleadings.

 3 Q He's recorded that he looked at the

 4 complaint, thank you.

 5 MS. STORM: Okay.

 6 Q Have you met Mr. Newman?

 7 A No.

 8 Q Have you talked to him on the telephone?

 9 A Yes.

 10 Q Or had correspondence with him?

 11 A Telephonically.

 12 Q And when did you talk to him on the

 13 telephone?

 14 A Perhaps in March sometime and yesterday.

 15 Q March of?

 16 A This year.

 17 Q 2002?

 18 A Again, I don't have the specific dates.

 19 Q That's fine. But is it fair to say it's a

 20 couple months ago and after your October 27, 2001, report?

 21 A Yes.

 22 Q And what did Mr. Newman tell you?

 23 A I wanted him to describe his working

 24 conditions on March 17, 1999. I had read the records, the

 25 documents that have been provided and I wanted to hear in

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 1 his words what he was doing and how he was doing it. I

 2 didn't take notes. I can't recall what he told me. I could

 3 say this, there was nothing that came from that telephone

 4 conversation that flew in the face of my understanding. And

 5 I was looking for that, but I didn't encounter that.

 6 Q Okay. So what I think I hear you saying is

 7 you had a conversation on the telephone with Mr. Newman and

 8 what he told you didn't cause you -- didn't disrupt the

 9 facts that you thought you gleaned from the written

 10 materials that you had reviewed prior to that point?

 11 A Right. I had confusion about the

 12 configuration of Building 179. And I understand there is

 13 some dispute about where he claims he was working and where

 14 others claimed he was working. But setting that aside, I

 15 had some concern about the actual structural arrangements of

 16 the building. And I spoke to Mr. Newman about that

 17 yesterday and then inspected the building this morning,

 18 which clarified some issues for me.

 19 Q What was your understanding prior to the

 20 telephone call with Mr. Newman?

 21 A Prior to all this, I had a difficult time

 22 sorting out the various -- there was a photocopy of a

 23 photograph of the building, exterior of the building. There

 24 was a floor plan and they didn't gel. They didn't -- there

 25 were some new structural elements included. And I came to

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 1 learn that what was present when he was exposed to sulfer

 2 dioxide was not the same as in the photograph that I had

 3 been provided. And I had a question about a wall that he

 4 described as being approximately 10 feet long and 6 feet

 5 high adjacent to where he was insulating the tank, I was

 6 interested in that. And it became clear what he was talking

 7 about.

 8 Q Okay. How long was your conversation with

 9 Mr. Newman?

 10 A I really can't say. Not very long, it was

 11 very brief.

 12 Q First off, there are two conversation. One

 13 in March and one yesterday?

 14 A Right.

 15 Q Was the one in March, are we talking about an

 16 hour?

 17 A No, no, nothing like that, very brief.

 18 Q Less than 15 minutes?

 19 A Yes.

 20 Q The conversation yesterday, an hour?

 21 A No, no, I would say less than 15 minutes.

 22 Q And tell me what the features were -- to use

 23 the word that didn't "gel" between the architectural or

 24 building features?

 25 MS. STORM: Can we have the file back?

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 1 MR. SCOTT: The photograph is in there.

 2 MS. STORM: That may be all I need. Excuse me for

 3 interrupting, Scott.

 4 Q No, that is all right. You can look at any

 5 photographs you like to compare.

 6 MS. STORM: Thank you.

 7 Q But tell me what wasn't jiving.

 8 A There were several things. I was trying to

 9 really marry this floor plan with this photograph.

 10 MS. STORM: Identify them.

 11 A One is PG-4 Exhibit and other doesn't have an

 12 exhibit.

 13 Q It is page 40 of the exhibit book, which that

 14 will clarify which Exhibit No. it is from.

 15 A For one, on the side of the building there

 16 appears to be an enclosure that I cannot, in as many plans

 17 as I've looked at throughout my career, decipher on this

 18 floor plan. And I wanted some clarification on that. There

 19 was a description here, it states, a metal wall, which I

 20 presume to be along at this point. I wouldn't describe it

 21 on PG-4, but essentially at the side of two roughly garage

 22 size doors, utility doors on Building B. And it appears

 23 this wall is what is demarked as a metal wall here. But

 24 then there is Building A. I don't see a Building A as such.

 25 I see air compressors, mechanical equipment, but no Building

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 1 A. I was confused about that. But there is an additional

 2 buildings, like a sub-building on top of Building A which

 3 does not appear to be on this floor plan.

 4 Q When you're saying the additional building,

 5 you're talking about the structure at the extreme left of

 6 the photograph that is a copy on page two?

 7 A Yes.

 8 Q Do you have it clear in your head now what

 9 the layout was and the photograph depicts after having

 10 talked with Mr. Newman yesterday and visiting that site this

 11 morning?

 12 A It appears that this is no longer there. And

 13 at the time Mr. Newman was working in Building B, Building A

 14 was not present. It was -- perhaps some of the equipment

 15 was present that the Mesa employees were working on, but it

 16 was enshrouded in a plastic three-sided envelope, for lack

 17 of a better term, instead of a structural building such as

 18 this.

 19 Q And to what extent, if any, does that require

 20 you to augment, modify, recant or buttress the opinions in

 21 your report?

 22 A It really doesn't.

 23 Q Okay. So it was something that was nagging

 24 at you because you didn't feel that you understood it fully.

 25 But now having understood it fully, you don't feel it makes

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 1 any -- it doesn't really bear on any of the opinions that

 2 you have?

 3 A No, the enclosure today is of more

 4 substantial material than was present three years ago.

 5 Q Okay. And what else did Mr. Newman tell you

 6 in his telephone conversation with you yesterday?

 7 A Well, I should mention that it was also a

 8 conference call where Mrs. Storm and I were present and she

 9 had questions of Mr. Newman as well, so it wasn't just my

 10 dialogue with him. It was a three-way.

 11 Q Let me just ask you what questions that you

 12 asked to Mr. Newman that he responded to you, or anything

 13 that Mr. Newman said that you found germane to the opinions

 14 and conclusions that you made in this case?

 15 A I asked him to describe the wall that was

 16 adjacent to where he stated he was working that day. And

 17 you can see from the diagram, it's not clear if this is a

 18 solid wall that goes to the ceiling or if it's a partial.

 19 He explained to me it was approximately 10 feet long and

 20 6 feet high. He described it as cinder block, when in fact

 21 it is not cinder block; that is neither here nor there as

 22 far as I'm concerned, it is a solid wall. I had some

 23 questions about that. I asked him to explain to me again

 24 how long he believes that he was exposed to sulfer dioxide

 25 and he couldn't be precise on that. Because I, frankly,

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 1 don't think he knew. I think early on he was exposed, but

 2 didn't respond to it until the concentrations became

 3 oppressive.

 4 Q Let me take a stop here and this has already

 5 been marked as an exhibit, but I'm going to mark it as

 6 another exhibit so that you can write on it and we can mark

 7 it and you can help me understand and record exactly what it

 8 is that you're describing by writing on the document. If we

 9 need to, we can write on several copies of it. This will be

 10 Exhibit 73.

 11 MS. STORM: Do we know what 73 is? Just tell me

 12 what it is. It's an exhibit that's been already marked, but

 13 can you identify it.

 14 MR. THOMAS: I'll just say it's a floor plan.

 15 MS. STORM: Prepared by who and from what date.

 16 MR. THOMAS: Let me just use it.

 17 MS. STORM: You know, just tell me, if you don't

 18 know, you don't know. We'll use it preliminarily to finding

 19 out what it is. Do you know who prepared this?

 20 MR. THOMAS: I don't know when it was prepared.

 21 It was provided to me and it represents the floor plan. And

 22 I'm not asking you to waive any rights to objecting to it

 23 with respect to the accuracy, its scale, or its depictions,

 24 but I want to simply use it as a means of recording the

 25 witness' discussion of where things are and what --

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 1 Q And I'll say this, Mr. Wabeke. If at any

 2 time, you have been there now, if you think there is

 3 something that isn't here that you need to depict, that is

 4 why we're here. You have a pen and we'll put it right on

 5 there and you can adjust it however you want.

 6 MS. STORM: If you want me to send him out of the

 7 room, but the problem I have with this is -- like we were

 8 out there today. This is not what it looked like the day of

 9 the accident. I don't know what it is you're going to be

 10 asking him. If you will give me a standing --

 11 MR. THOMAS: You have --

 12 MS. STORM: Standing objection, motion to strike,

 13 whatever. Again, one of the things that was difficult about

 14 this picture is it wasn't accurate in terms of what it was

 15 when this happened. And I don't believe this is either

 16 unless you can tell me that this was the floor plan on the

 17 date of the accident with the correct features.

 18 MR. THOMAS: Well, we'll leave that discussion to

 19 another day.

 20 MS. STORM: Okay.

 21 Q Have you got Exhibit 73 there in front of

 22 you, sir?

 23 A Yes.

 24 Q And do you have a pen you can write with?

 25 Feel free to mark this up. Before we started talking, let

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 1 me get this --

 2 MS. STORM: This is part of the file. I'm going

 3 to put it back in front of him. These are his copies of

 4 exhibits. This is part of his file and this is part of his

 5 file and this is part of his file and this one you marked

 6 73. Thank you. Go ahead.

 7 Q A few minutes ago we were talking about a

 8 wall. And we were looking at a different layout. And I'll

 9 just represent to you that this diagram is styled as the

 10 first floor at Building 179 and it's divided into section A

 11 B and C or Buildings A, B and C?

 12 MS. STORM: Again, are you telling me that you do

 13 not know what the date of this floor plan is?

 14 MR. THOMAS: I'm not testifying at this

 15 deposition. I'm just providing this with him --

 16 MS. STORM: But you have identified him, but you

 17 have not identified it in an accurate manner. That is the

 18 problem I have. Is this the floor plan of 11/21/01 the date

 19 down at the bottom?

 20 MR. THOMAS: Let me do it this way. You know, I'm

 21 either going to examine him over this, which I think will go

 22 a lot faster, or I'm going to give him a blank piece of

 23 paper and he can draw whatever he wants. But I think going

 24 over this is fine. I've allowed you the opportunity, you

 25 can raise whatever objections you like, but I think this

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 1 helps clarify the examination and preserve his views.

 2 MS. STORM: I'm not telling you how to examine

 3 him. I'm asking a question. If you don't know, you don't

 4 know; that will help me. Do you know what the date of this

 5 is?

 6 MR. THOMAS: How about I say I don't know?

 7 MS. STORM: Then that is all we need to say. So

 8 you're not representing to this witness it is accurate as of

 9 the date of the accident? You're using it for demonstrative

 10 purposes to ask questions?

 11 MR. THOMAS: That will work for me.

 12 MS. STORM: Thank you.

 13 Q Let me start this way. You have been there

 14 today. Does this diagram, which we've marked as 73, without

 15 commenting on the -- without asking you to comment on

 16 whether the figures representing dimensions are precise,

 17 does it reflect the layout that you observed at the site

 18 today?

 19 A Generally, with one exception.

 20 Q All right. Tell me what the exception is and

 21 I'm going to ask you to take your pen and -- well, first,

 22 tell me what it is, and then we will decide how to reflect

 23 it.

 24 A I think it's an important exception because

 25 today I observed the wall described to me by Mr. Newman.

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 1 His recollection was the wall was approximately 10 feet long

 2 and 6 feet high. And I believe he was referring to this

 3 wall which was present today.

 4 MS. STORM: You need to identify that.

 5 A On Exhibit PG-4, which was present today in

 6 that location. It's not present here, but I believe that's

 7 significant because Mr. Newman said he was working next to

 8 that wall. And I would find it hard to understand if others

 9 claim he was working down here, how he could make a

 10 connection between that wall and where he was working

 11 because there is no wall there, apparently.

 12 Q Please take your pen and transpose the wall

 13 that you've indicated on PG-4 on Exhibit PG-73?

 14 A Well, I'm going to transpose it

 15 approximately.

 16 Q I'm not holding you to scale.

 17 A Approximately there.

 18 Q Now, if you would, at the bottom margin, just

 19 so when we photocopy this, we will be able to see, draw an

 20 arrow to that and put a "W" for wall or just spell it out.

 21 All right. And you have written the dimensions 6 feet by

 22 10 feet; is that correct?

 23 A Yeah, approximately equal to, yes.

 24 Q And the ceiling in the area where that wall

 25 is is about 16 feet high, right?

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 1 A I would say 16 to 18 feet. I didn't measure

 2 it, but that is a standard height.

 3 Q And so is the -- which dimension is the

 4 height of the wall?

 5 A Six feet.

 6 Q And it's 10 feet long?

 7 A Roughly. I didn't measure it, but I would

 8 approximate it like that.

 9 Q And Mr. Newman told you on the telephone

 10 yesterday that he was near what?

 11 A Near a cement or cinder block wall of those

 12 approximate dimensions at that location.

 13 Q And you're assuming that based upon what

 14 Mr. Newman told you on the telephone and the visit that you

 15 made to the site today -- we keep talking about today and

 16 yesterday. Let me just note that today is May 9, right?

 17 A Yes.

 18 Q May 9, 2002. Please put in an "N" where

 19 you're assuming Mr. Newman was during this event.

 20 A It would be approximately here. I can't --

 21 obviously, he's not going to be stationary, he's moving, but

 22 it's approximately where that "N" is.

 23 Q And I take it you have -- have you been

 24 provided with any examinations of Mr. Newman, any kind of

 25 medical examinations other than the reports?

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 1 A I read the reports. I don't recall seeing

 2 medical records, perhaps I did and don't have them with me:

 3 The exposure reports, incident reports and EMS and that sort

 4 of thing.

 5 Q Well, in your report you state, "I studied

 6 numerous documents and records in connection with my review.

 7 These included medical records and reports." That is the

 8 end of the quote. Does that refresh your memory as to

 9 whether you looked at actual medical records or whether you

 10 reviewed, for example, Dr. Anderson's or Dr. Hirsh's report?

 11 A I clearly reviewed their narrative reports.

 12 I don't recall, as I sit here today, pulmonary function

 13 tests and graphs. Perhaps I did, but nothing comes to mind

 14 as I sit here. It wouldn't surprise me. On the other hand,

 15 I can't state specifically whether I did or didn't.

 16 Q As we sit here today, you're not here to

 17 offer medical opinions, correct?

 18 A No, of course not.

 19 Q Have any -- are there any other changes that

 20 you feel are necessary to make -- to clarify what we talked

 21 about before about things not jiving?

 22 A Well, one thing that doesn't jive that is on

 23 this photograph, or this copy of a photograph, it shows

 24 again this vestibule-like building attached to Building A,

 25 which is not reflected on whatever this exhibit is.

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 1 MS. STORM: 73.

 2 A 73.

 3 Q Do you think there is any relevance to the

 4 existence of that vestibule to a full, comprehensive

 5 analysis of what happened on March 17?

 6 A I don't mean to be evasive. It might or

 7 might not. I don't know. It strikes me as strange, I'm

 8 looking at three documents and there are common things, but

 9 there are so many uncommon issues it raises some questions.

 10 If, for example, I found out what the purpose of this

 11 structure was, what it housed, if anything, that might have

 12 a bearing on this. It's not going to change my fundamental

 13 opinion. It strikes me as odd at this point in these

 14 deliberations we have this confusion about the documents and

 15 what's purporting to be the truth and undated documents, not

 16 nothing what existed at what time, at least to my way of

 17 liking.

 18 Q All right. So with respect to medical

 19 records you don't remember if and what you reviewed in that

 20 regard?

 21 A No, I don't; I'm sorry.

 22 Q How about material safety data sheets?

 23 A There was an MSDS -- in fact, it is in this

 24 stack of documents for sulfer dioxide.

 25 Q Can you please show it to me?

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 1 A Well, Murphy's Law, I have to go through them

 2 one by one; I'm sorry.

 3 Q I'm going to mark that as something for me to

 4 come back to and you can look for that in the break.

 5 A Maybe I can answer some questions as you're

 6 speaking. I can respond to your questions while I'm looking

 7 for it.

 8 Q What treatises in your library did you look

 9 at?

 10 A A NIOSH publication on the physical, chemical

 11 and toxicological properties of air contaminants. I have

 12 the book with me, if you would like. Another NIOSH

 13 publication entitled, "A Guide to the Work-Relatedness of

 14 Disease. The American Industrial Hygiene Association Odor

 15 Detection and Odor Recognition Values that I referred to

 16 earlier. Franck's, F-R-A-N-C-K-'-S Toxicological

 17 Emergencies.

 18 Q Could I see the copy of the first one?

 19 A Sure.

 20 Q And what did you learn from these treatises

 21 that contribute to the opinions and conclusions?

 22 A I didn't learn anything from this

 23 publication. I generally have that available because

 24 questions might arise regarding physical and chemical

 25 properties of various materials. For example, you wanted

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 1 information regarding the vapor pressure of sulfer dioxide

 2 and I would have an information source.

 3 Q How about the other treatises you mentioned,

 4 Franck's and other work-relatedness of disease?

 5 A There was nothing enlightening in Franck's,

 6 nothing enlightening in the Guide of Work-Relatedness

 7 Disease.

 8 Q They were reference materials you consider

 9 authoritative and you go to them from time to time to get

 10 information that -- you don't keep vapor pressures figures

 11 in your head, for example. But in terms of -- there is

 12 nothing in your report that hinges on a fact or opinion

 13 expressed in one of those treatises; is that fair?

 14 A No, it's not entirely fair because I believe

 15 an attachment of my report issues the NIOSH publication, A

 16 Guide to the Work-Relatedness Disease. I cite it in my

 17 report.

 18 Q You're talking about the protocol?

 19 A Yes.

 20 Q We'll talk about that a little bit later.

 21 But other than that, you will agree with me?

 22 A Yes.

 23 Q What about medical and industrial hygiene

 24 articles from MEDLINE -- is that an internet resource?

 25 A Yes, it's an internet resource. I don't

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 1 recall what I searched on it. What I have in this stack of

 2 documents are some OSHA publications regarding

 3 multi-employer work sites. And I believe I anticipated that

 4 might be an area of contention, so I made photocopies of

 5 those and brought them to today's meeting. Mrs. Storm has

 6 not seen them. She saw them yesterday. They weren't part

 7 of my report. I simply brought them should questions arise

 8 regarding multi-employer work sites.

 9 Q You don't intend to offer legal opinions as

 10 to OSHA requirements of and impacts on liabilities in this

 11 case, correct?

 12 A No, I'm not a lawyer, but it's background

 13 information I thought might be helpful.

 14 Q Is that something you got off MEDLINE?

 15 A No, no, not MEDLINE. Google, one of the

 16 search engines; I'm sorry.

 17 Q As we sit here today, can you remember

 18 anything from MEDLINE that impacts on --

 19 A I have information on the toxicology of SO2

 20 in terms of exposures, but -- I don't know if that was

 21 through MEDLINE or not, I really can't say.

 22 Q How about TOXLINE?

 23 A Same thing, I can't --

 24 Q GratefulMed?

 25 A GratefulMed is -- it's not the Grateful Dead,

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 1 it's a subdivision of MEDLINE and TOXLINE.

 2 Q And the National Library of Medicine, I

 3 presume that was also online?

 4 A Yes.

 5 Q I guess what I'm getting at or I guess the

 6 impression I'm getting is that you've got a case, it

 7 involves sulfer dioxide, and you've dealt with sulfer

 8 dioxide in the past, but it's not something that one keeps

 9 shelves in their study filled with books and treatises on,

 10 so you refreshed your memories of this substance by going

 11 online and using the internet as a resource and looking at

 12 various -- and I guess we're talking about information that

 13 was largely in the form of abstracts?

 14 A Right.

 15 Q Just to get the background and get the juices

 16 flowing, if you will, about what was going on or what is

 17 important in sulfer dioxide; is that fair?

 18 A That's fair.

 19 Q Now, the next thing you said in the list of

 20 things that you looked at was diagrams of Mr. Newman's

 21 workstation on the day of his exposure to sulfer dioxide

 22 gas. What diagrams are those?

 23 A It would have been PG-4.

 24 Q Now, PG-4 is a copy of a pleading that is not

 25 the complaint. Do you know whether you got the entire

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 1 pleading or whether you just got that page or whether you

 2 got a piece masked out or whether you got it in some other

 3 form?

 4 A I don't know.

 5 Q Is there any other diagram -- this PG-4 that

 6 you have been referring to, that was something in your

 7 files, correct?

 8 A Yes.

 9 Q And PG-4 was so marked at an earlier

 10 deposition in this case earlier this year. Do you know

 11 whether you got it sometime in the last couple of months or

 12 is there another diagram in your files that you might have

 13 been able to refer to prior to October 27, 2001?

 14 A I received -- I'm almost certain I received

 15 this after I prepared my report. Having said that, I don't

 16 think it was a new diagram. I recall referring to diagrams

 17 not in the stack of documents prior to preparing my report.

 18 Q And that's exactly my point. You couldn't

 19 have seen PG-4 in that form?

 20 A Not an as an exhibit, right.

 21 Q In those days because it wasn't marked prior

 22 to October 27?

 23 A Yes. Thank you. In the Plaintiffs answers

 24 to interrogatories is this very diagram. Ms. Storm

 25 refreshed my memory on that.

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 1 Q So what you had is a copy of that diagram in

 2 response to Mr. Newman's response to interrogatories; that

 3 is the form you saw it in?

 4 A Yes.

 5 Q Now, the word diagrams plural is used. Do

 6 you know whether that is -- sometimes we speak and we just

 7 put a plural on things heedlessly. Do you know whether

 8 there are any other diagrams, other than that one that you

 9 looked at?

 10 A Well, usually I'm very careful in using the

 11 plural, but nothing comes to mind.

 12 Q Are you aware --

 13 A Thank you. There is a diagram here. It's

 14 essentially the same as -- well, not quite the same.

 15 Q May I see it, sir?

 16 A There are some notes on this that are not on

 17 this one. They purport to be the same physical plant.

 18 Q All right. You've handed me a document that

 19 is another diagram, which is the same as the diagram in PG-4

 20 with the exception of some handwritten information on PG-4

 21 that does not appear on the other diagram, correct?

 22 A Correct.

 23 Q But other than that, they are the same?

 24 A They are the same.

 25 Q And so just again in an abundance of caution,

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 1 are there any other diagrams that are different from that

 2 diagram?

 3 A No.

 4 Q That paragraph that I quoted earlier said you

 5 "reviewed personal statements," what are those?

 6 A There are some handwritten notes somewhere in

 7 here that were prepared by a colleague of Mr. -- do you want

 8 me to retrieve them or --

 9 MS. STORM: Let's go ahead and take a break.

 10 (Lunch break taken.)

 11 (Continued deposition from lunch break.)

 12 Q Your report states, "The records reveal that

 13 Mr. Newman inhaled sulfer dioxide gas on March 17, 1999." I

 14 need to know if that is an opinion or conclusion that you

 15 have reached.

 16 A It's a conclusion I reached. I'm not

 17 distinguishing an opinion from a conclusion. But whatever,

 18 that is my belief.

 19 Q Tell me what facts that is based on.

 20 A That sulfer dioxide was present at building

 21 179 and there was a release of that gas while he was working

 22 there.

 23 Q And you would agree that that could occur and

 24 Mr. Newman could not have inhaled any sulfer dioxide,

 25 correct?

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 1 A That's possible, sure.

 2 Q So I guess my question is what are we basing

 3 it on? What are you basing your conclusion on that he did,

 4 in fact, inhale?

 5 A Mr. Newman, based on the review of everything

 6 and talking to Mr. Newman, was healthy before March 17,

 7 1999. He was diagnosed with chemical pneumonitis. He

 8 described an exposure to a gas that would be consistent with

 9 irritative properties of sulfer dioxide and that's primarily

 10 the basis for my opinion.

 11 Q Now, this exposure Mr. Newman described, is

 12 that something he described to you on the telephone?

 13 A Yes, I've not seen his deposition. I talked

 14 to him two times and that was his description.

 15 Q Tell me what he told you on the telephone --

 16 A Well --

 17 Q I'm sorry -- that you stated was relative to

 18 the exposure?

 19 A He described an irritation. I was trying to

 20 get a handle on the duration of his exposure. I knew that

 21 might be dicey going in. And it was. I couldn't get a

 22 precise -- and I suspect nobody can get a precise duration

 23 of the exposure of the gas based on what I said earlier.

 24 I'm also coupling my opinion to the incident report or

 25 description by -- not only by Mr. Newman in the records, but

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 1 by a colleague, a coworker. I don't know if I'm being

 2 responsive to your question but --

 3 Q Well, let me put it this way. Isn't it true

 4 that there's no objective physical evidence that sulfer

 5 dioxide molecules were in Mr. Newman's body?

 6 A I don't know that air samples were taken or

 7 if his body was tested for sulphate, urinary sulphate.

 8 Q And stated another way, there is no test that

 9 shows any type of objective evidence of an injury that's

 10 traceable to sulfer dioxide; is that fair?

 11 A No, that's in the medical realm. If you want

 12 me to respond am I aware of any tests that were taken either

 13 on him as a person or in his workstation that day, I'm not

 14 aware of anything. Nothing has been present brought to my

 15 attention or shared with me.

 16 Q Or later?

 17 A Well, taking an air sample now is

 18 meaningless.

 19 Q You mentioned treatment after that day.

 20 A Measuring urinary sulphate today is

 21 meaningless.

 22 Q So, sir, are you agreeing with me that there

 23 is no objective evidence of his having inhaled sulfer

 24 dioxide on March 17, 1999?

 25 A In other words, are there any tests showing

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 1 that sulfer dioxide molecules entered his nostrils and/or

 2 mouth?

 3 Q Yes.

 4 A No, there aren't.

 5 Q And there is no objective, say, x-ray -- I

 6 don't know how this is done -- but there are not the tests

 7 that say, okay, here's a test that shows lung scarring;

 8 here's a test that shows some type of abnormality in the

 9 nostrils, or this, that and the other, correct?

 10 A That's really in the realm of medicine. I'm

 11 not here to speak to how subjective or less objective. On

 12 the other hand, a diagnosis of chemical pneumonitis can be

 13 made when there is a history of exposure in the absence of

 14 x-ray findings, pulmonary function tests or even osculation

 15 of the chest.

 16 Q Let me just stop you right there. Because

 17 you can have it one way or the other way, but we can't have

 18 it both ways. Are you agreeing with me that your area of

 19 expertise does not permit you to render medical opinions?

 20 A That's right.

 21 Q Tell me what Mr. Newman told you that you

 22 felt was consistent with an exposure to sulfer dioxide gas?

 23 A Irritating properties, the choking sensation.

 24 Q First, what do you mean by "irritating

 25 properties"?

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 1 A I don't know what he meant by that. I have a

 2 sense of what he meant by that, but assuming he was inhaling

 3 something that was irritating his mucous membranes.

 4 Q Those were his words "irritating properties"?

 5 A No, he didn't say irritating properties.

 6 Something was irritating him. I didn't take notes on that.

 7 I listened to what he had to say.

 8 Q When you said you didn't know what he meant

 9 by that, I inferred you were hearing his words and you were

 10 relaying them to me without an understanding of what he

 11 meant?

 12 A I'm almost certain he said "irritation",

 13 something is irritating me. It could have been burning, I

 14 don't have specifics.

 15 Q I'm sorry?

 16 A I don't have a specific wording. I didn't

 17 take notes of exactly what he said. I didn't think that was

 18 important.

 19 Q Well, what about that word choking?

 20 A He used the word choking, yes.

 21 Q That is something you remember specifically,

 22 he said choking?

 23 A Right.

 24 Q Any other words that he used that you

 25 specifically remember as we sit here today?

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 1 A I don't remember.

 2 Q Was this the conversation yesterday or the

 3 conversation back earlier?

 4 A The earlier one.

 5 Q In April?

 6 A The earlier one.

 7 Q And no other words beside choking?

 8 A I don't remember.

 9 Q And when did this choking occur?

 10 A I don't know.

 11 Q You don't know?

 12 A No, as I said earlier, he couldn't give me a

 13 time when he was symptomatic until the time that he

 14 evacuated himself from the building. He didn't know when T

 15 subzero started, the original exposure time started. It

 16 wasn't clear to him.

 17 Q All right. Well, let me put it to you this

 18 way. Did you get a sense from your conversation with

 19 Mr. Newman about the duration of time on the opposite side?

 20 That is, at one moment he started having this experience of

 21 this choking, and then he evacuated the building; is that

 22 fair?

 23 A Yes.

 24 Q Do you have a sense of the duration of that

 25 time?

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 1 A I can't be specific. I believe it's

 2 somewhere between -- up to two minutes, but I don't have a

 3 handle on that. I really can't. I don't think he can.

 4 Q All right. So what I think I hear you saying

 5 is you have no idea because you think Mr. Newman himself has

 6 no idea?

 7 A No, I believe that he had substantial

 8 exposure for up to two minutes; it could have been less, it

 9 could have been a little bit more, but I believe it was one

 10 to two minutes.

 11 Q Why is that? Why do you have that belief if

 12 Mr. Newman doesn't even know?

 13 A I believe it's a reflection of my

 14 understanding of the physiology, the pathic physiology of

 15 sulfer dioxide gas when people have been exposed before that

 16 I've had experience with: the nature of the gas, it's toxic

 17 properties.

 18 Q Are you saying that sulfer dioxide affects

 19 different people -- I mean, I think when I was talking with

 20 somebody else in a deposition, I asked the question if my

 21 wife and I go for a walk in the woods and we stroll through

 22 poison ivy. It will effect her not at all, but it will ruin

 23 me because I will react to it. Is that what sulfer dioxide

 24 is in terms of some people are adversely affected by

 25 exposure to it and others are not?

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 1 A Well, there is a point in which everybody

 2 would be affected. There is a point in which everybody

 3 would die if the exposure is sufficiently concentrated and

 4 sufficiently protracted. If you're suggesting is it an

 5 allergic sensitizer? No, it's not. As chemicals go, it's

 6 not -- it's more of a primary irritant in a dose-response

 7 relationship. It does have sensitizing properties in a very

 8 small percentage of people, but certainly not as potent as

 9 poison ivy, a variety of formaldehydes, and several others.

 10 Q Well, the way sulfer dioxide hurts the body

 11 is it touches on a part of the body that is moist, mouth or

 12 nose, and it reacts with the moisture to create sulfurous

 13 acid, right?

 14 A That is one mechanism, yes.

 15 Q And that's what causes the choking sensation,

 16 for example, or irritation of the eyes or tearing or some of

 17 those symptoms, correct?

 18 A That's partially true, yes. It's not a

 19 complete picture of the toxicology of the gas, but it's part

 20 of it.

 21 Q Well, it's certainly part of the toxicology

 22 insofar as it describes irritation of coughing and choking

 23 and sneezing and whatever, tearing, correct?

 24 A No, not entirely correct.

 25 Q Well, what am I missing?

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 1 A Well, sulfer dioxide is a gas that provokes a

 2 greater bronchial constriction than one would anticipate

 3 just on sulfurous acid alone. There is something there that

 4 is not explained and I don't know. I haven't seen anything

 5 in literature to fully explain it. But sulfer dioxide is a

 6 potent broncho constrictor, and, again, more so than a

 7 strict irritation phenomena would explain. There is

 8 something on a deeper cellar level; that's clear. It's not

 9 just the formation of the acid causes one to choke up. It

 10 is deeper than that.

 11 Q Where is that written?

 12 A I don't know, in the literature. I can't

 13 cite things chapter and verse as I sit here. I would refer

 14 you to the NIOSH criteria document for occupational health

 15 standards for sulfer dioxide gas.

 16 Q You think it's in there?

 17 A Some of it's there. It's an ancient document

 18 today, but some of it's there, yes. The major author of

 19 Sulfer Dioxide Inhalation Toxicity was actually from

 20 Cincinnati, too, Drs. Kettering and Keho years ago.

 21 Q Well, let me put it this way, broncho

 22 constriction aside, sulfer dioxide doesn't pick and choose

 23 among the moist membranes of different people's bodies and

 24 say, all right, with this water I will form sulfurous acid

 25 and with this water in this person's mouth I will not,

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 1 correct?

 2 A No, that's correct.

 3 Q It's indiscriminate?

 4 A It's indiscriminate.

 5 Q What is broncho constriction?

 6 A It's a narrowing of the airways up to the

 7 bronchial level, up to the alveolar level.

 8 Q All right. So we're talking about the

 9 smaller airways as we get closer to the lung itself?

 10 A Yes.

 11 Q And those openings get narrower because of

 12 some reaction with the sulfer dioxide?

 13 A Yes.

 14 Q And do we have any idea whether this happened

 15 to Mr. Newman?

 16 A I don't know. I suspect not. I mean, there

 17 could be broncho constriction from an exposure to an

 18 irritant gas or vapor or even a particulate for that matter.

 19 I'm not suggesting -- and I don't think any of the medical

 20 records suggest that he developed an immediate asthmatic

 21 response. He had no prior history of asthma.

 22 Q Nor am I suggesting. I'm just asking did he

 23 have it and you're saying probably not.

 24 A He -- it's unlike he had the type of broncho

 25 constriction that can occur in an asthmatic that is

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 1 responsive to SO2.

 2 Q So broncho constriction doesn't apply to this

 3 unless a person has asthma?

 4 A No, not at all. One can have restriction of

 5 the bronchioles from exposure to irritant gasses, such as

 6 sulfer dioxide. The asthmatic has a much greater response,

 7 which becomes incredibly profound even ambient pollution air

 8 situations for those people, especially children.

 9 Q And my question is simply do you believe that

 10 Mr. Newman suffered from -- I'm not sure if I'm pronouncing

 11 it right -- bronchio or broncho constriction?

 12 A I don't know. Again, we're getting into the

 13 medical field. I mean, it's certainly plausible, but I

 14 don't know if he did or not. Choking, I mean, is one of the

 15 overt signs of that sort of thing. There are other causes

 16 of choking, of course.

 17 Q And, again, sir, my job in this is to ask you

 18 questions and find out more about your opinions. My mere

 19 asking a question does not mean to imply that you do know or

 20 should know or I expect you to know the answer to any

 21 particular question. A lot of this is finding the

 22 boundaries of where your trial testimony will take us.

 23 A Sure.

 24 Q Okay. So I don't -- bear with me. What is

 25 respiratory morbidity?

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 1 A Lung disease.

 2 Q And what are the risk factors for pulmonary

 3 irritant lung disease?

 4 A Risk factors? The nature of the inhaled

 5 agent, in other words, its chemical and/or biological and/or

 6 physical nature; it's physical and chemical properties; the

 7 concentration that one is inhaling; the duration of

 8 exposure; individual biological factors, human factors that

 9 might predispose one to adverse effects.

 10 Q Let me ask you this. Take a look at your

 11 report because I think we're on the wrong -- on page two of

 12 your report it says, "Mr. Newman did not have any precedent

 13 respiratory morbidity and no apparent risk factors for

 14 pulmonary irritant lung disease."

 15 A I see where you're going.

 16 Q I'm trying to figure out what the risk

 17 factors are for pulmonary irritant lung disease.

 18 A He didn't have a preexisting lung disease.

 19 Nothing suggested obstructive or restrictive lung disease,

 20 asthma, emphysema, fibrosis.

 21 Q I take that as your answer with respect to

 22 not having respiratory morbidity. What are the risk factors

 23 for pulmonary irritant lung disease?

 24 A I mentioned them.

 25 Q Well, to me -- and again this is just me, a

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 1 lay person -- but I would think of a risk factor -- when I

 2 think of risk factors, I think of say a risk factor for

 3 heart disease is a diet high in cholesterol. And the -- so

 4 I'm thinking of pulmonary irritant lung disease, we ought to

 5 talk about what that means, that ought to have risk factors

 6 too that if a person has this particular factor in their --

 7 whether it may be their history, their diet, daily living

 8 activities, occupational exposures, that those are risk

 9 factors for that condition; do you agree with me?

 10 A Well, I think I gave you risk factors. You

 11 used diet as a risk factor. Ingestion of fatty foods is a

 12 risk factor; inhalation of sulfer dioxide is a risk factor.

 13 It's not ingestion, it's inhalation, but it's a function of

 14 dose, dose duration.

 15 Q Well, the risk factors that you gave me were

 16 concentration, right?

 17 A How much fat in your food that you eat. It's

 18 no exception, it's no different.

 19 Q How is the concentration -- the concentration

 20 of what?

 21 A In this case sulfer dioxide gas.

 22 Q When you say there is no apparent risk

 23 factor?

 24 A What number are you referring to?

 25 Q Page two of your report.

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 1 A Where?

 2 Q There is a paragraph that reads, "The records

 3 reveal" -- the third sentence in that paragraph is the one

 4 I'm quoting.

 5 A There was nothing in the records that

 6 indicated he had preexisting lung disease.

 7 Q All right. And then my question is -- I've

 8 understood that. What I want to know is your understanding

 9 of the risk factors for pulmonary irritant lung disease.

 10 A Risk factors -- I'm repeating myself, but the

 11 risk factor are several, and in no particular order, but two

 12 in the top would be what is the agent or agents, what is the

 13 concentration that is inhaled that reaches the target

 14 tissues and cell sites, what is the duration of exposure to

 15 that provocative agent or injurious agent. There are other

 16 risk factors, but those are the big three. There can be

 17 unique individual biologic factors, there can medication

 18 factors, there can be metabolic uptake factors, biochemical

 19 factors, it goes on and on and on. But the big three are

 20 what is the chemical, how much is inhaled and how long did

 21 one inhale it. Those are clearly risk factors, as I

 22 understand risk factors.

 23 The hazard is the agent, but the risk is the

 24 function of exposure and exposure is defined by how much and

 25 how long and what is it. We use an equation, but a very

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 1 simple equation in our business that Hazard plus exposure

 2 equals risk. In this case sulfer dioxide is the hazard. If

 3 it is in a contained system, it's always hazardous. But if

 4 there is no exposure, there is no risk.

 5 Q What is your basis for concluding that

 6 Mr. Newman had pulmonary irritant lung disease?

 7 A He was diagnosed with chemical pneumonitis.

 8 His lungs were burnt.

 9 Q What does "his lungs were burnt" mean?

 10 A Chemical pneumonitis, inflammation of the

 11 respiratory tract tissues.

 12 Q So he had inflammation of the pleural

 13 membrane secondary to exposure to sulfer dioxide gas; is

 14 that what you're saying?

 15 A The pleural membrane?

 16 Q Well --

 17 A Well, perhaps he did. I don't recall any

 18 pleural effects. It's certainly conceivable.

 19 Q Well, what does --

 20 A But I believe chemical pneumonitis is not so

 21 much one of chemical pleurisy as it is chemical alveolitis.

 22 Q And you're getting that on the basis of the

 23 medical records that you reviewed. You're not qualified to

 24 make a diagnosis --

 25 A No, I'm not.

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 1 Q -- of that, correct?

 2 A That's right.

 3 Q And with respect to those factors that you

 4 listed earlier: Concentration, duration -- were those the

 5 two big ones? Was there a third?

 6 A Well, it has to be what the agent is, that

 7 goes hand-in-hand.

 8 Q Sulfer dioxide. What assumptions have you

 9 made regarding those factors in this case?

 10 A I believe that Mr. Newman, based on my review

 11 of the records, that he had an exposure up to two minutes,

 12 somewhere between one and two minutes; that coupled with his

 13 medical findings tell me that he had an exposure above 100

 14 parts per million of sulfer dioxide gas.

 15 Q And what is his precise -- is the precise

 16 condition that we're talking about chemical pneumonitis? Is

 17 that the condition that we're talking about?

 18 A I don't know what it is today.

 19 Q Well --

 20 A There several medical records and I read

 21 them, but I didn't -- I'm not here to second guess those.

 22 Q If I understand you right -- if I understand

 23 you right, you're saying that you understand that there is a

 24 release of sulfer dioxide, and that at some later point a

 25 doctor evaluated Mr. Newman and concludes that he had

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 1 chemical pneumonitis, and that you're taking that fact and

 2 perhaps Mr. Newman's irritation on that day and you're

 3 trying to correlate if he has this resultant condition, what

 4 must have been his exposure; have I got that right?

 5 A Pretty much.

 6 Q What has been your background and experience

 7 in doing that in the past with others, wherein you have

 8 correlated a person's condition to -- and there is probably

 9 a word for the certain kind of reasoning, maybe --

 10 A Forensics.

 11 Q Well, I was thinking in terms of inductive --

 12 I never got those words straight in my head a long time ago.

 13 You have taken the condition, and knowing the agent, that

 14 there was this potential that was in the environment, what

 15 must the exposure have been to cause that result. And I

 16 want to know what have you done -- how many occasions have

 17 you reviewed or have you done this in the past where you

 18 have had a person who was exposed to a known dosage of X

 19 amount concentration of sulfer dioxide and they had these

 20 symptoms or these medical sequela?

 21 A With sulfer dioxide I can probably count on

 22 the fingers of one hand the times that I have done it, but

 23 have never attempted to extrapolate retrospectively a dose.

 24 It really wasn't important. There was no question a person

 25 was excessively exposed to sulfer dioxide and a plan had to

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 1 be put into place to prevent future. In a more general

 2 sense I have done that very thing you have talked about

 3 perhaps tens of thousands of times. And, in fact, I am the

 4 principle investigator in investigating 6,000 cases of

 5 prostate cancer looking back through the lifetime of

 6 exposures of men to whatever they did in their occupation to

 7 see if there is a link between their cancer, their disease

 8 and what they did for a living, where they worked and how

 9 much their exposures might have been in the absence of air

 10 sampling and ventilation measurements. It is an established

 11 scientific protocol to follow to do just that.

 12 Q Just so we're here, you're not here to make

 13 any link between exposure to sulfer dioxide and prostate

 14 cancer?

 15 A No, I'm not.

 16 Q Someone reading the transcript many months

 17 from now would --

 18 A Let's hope not.

 19 Q Tell me about the cases that you can count on

 20 one hand in which you looked at someone with sulfer dioxide

 21 exposure and the symptoms that they've suffered as a result.

 22 A All four occurred in two foundries wherein

 23 Ford Motor Company was considering the use of sulfer dioxide

 24 to produce cores in core-making operations, which we were

 25 discussing earlier this morning. In fact, as a result of

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 1 that, one of the decision factors in not using sulfer

 2 dioxide was a lack of good control that we could achieve

 3 with that gas. There were other economic factors, but there

 4 were certainly the industrial hygiene that argued against

 5 using that process. These were men who had exposures to --

 6 for lack of a better term -- puffs of sulfer dioxide as a

 7 burp from the core-making machines so much so that they had

 8 medical problems and had to be admitted to hospitals and

 9 treated accordingly. There was no attempt to work back to

 10 find out what their exposure was, it really wasn't

 11 necessary. They were healthy before. Their only exposure

 12 was sulfer dioxide. Their signs and symptoms were

 13 consistent with exposure. End of story.

 14 Q And what symptoms did they have?

 15 A Coughing, choking, eye irritation, in some

 16 cases labored breathing, dyspnea.

 17 Q What does dyspnea mean?

 18 A Labored breathing, difficulty breathing.

 19 Q And these puffs -- is this when the core is

 20 made itself that's used later in the mold-making process?

 21 A No, it's in the manufacture of the cores

 22 themselves wherein sulfer dioxide is injected under high

 23 pressure into the sand grains and the polymer that binds the

 24 sand.

 25 Q Then you have something you can use to make

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 1 the cup to use our example before?

 2 A Right.

 3 Q Did the workers -- these four men, I take it

 4 this was a non-fatal exposure; is that correct?

 5 A That's right.

 6 Q These four men, when they were -- did they

 7 suffer these results immediately upon when the first core

 8 was made or is this something that was as a result of

 9 chronic exposure that could only be -- the only attributable

 10 causal factor that you determined was their working in

 11 proximity to this particular manufacturing process?

 12 A Nothing suggested it was a chronic exposure.

 13 They probably had day-in and day-out exposure. In fact, my

 14 air sampling demonstrated that. But what caused their

 15 problems was this single burst, this release of gas in an

 16 uncontrolled situation.

 17 Q But that would happen every time they made a

 18 mold, right?

 19 A No, it could be function of many things,

 20 improper addition rate, withdrawn pressure, adding too much,

 21 adding too much at the wrong time, or on top of all that the

 22 ventilation isn't work. But for the ventilation system not

 23 performing the way it was designed, the person wouldn't have

 24 been exposed. There are many factors that led to their

 25 exposures. It wasn't one -- it was a systematic issue in

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 1 terms of things went wrong.

 2 Q Were all of these men injured at the same

 3 time?

 4 A No, two were. Two in Windsor were. Two or

 5 three or four, whatever it was, in the Michigan Casting

 6 Center were over a several week period.

 7 Q But all of these men, prior to suffering

 8 injuries that led to their hospitalization, they had been

 9 subjected to sulfer dioxide in their workplace in the past

 10 and that's all I mean by chronic. It wasn't the first time

 11 the mold was made and they had that experience, correct?

 12 A When I was called -- in fact, I went on two

 13 site of the visits. And somebody that worked for me went on

 14 another one. We don't know what their exposures were

 15 before, there is no way. We had no indication on

 16 interviewing the people or their supervisors or their

 17 colleague if the exposures were massive daily. It's

 18 unlikely. People wouldn't tolerate that sort of thing.

 19 These were equipment breakdowns, frankly.

 20 Q Okay. At the same time, they were involved

 21 in a manufacturing process on a daily basis that used sulfer

 22 dioxide, correct?

 23 A Yes.

 24 Q And so there may have been exposure to sulfer

 25 dioxide over a long period of time within permissible

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 1 limits, less than two parts per million or less than five

 2 parts per million on a daily basis over a time, correct?

 3 A No, not correct. I don't believe that.

 4 Because the prior process -- and the subsequent process, the

 5 company went back to use formaldehyde as the curing agent.

 6 And we had that controlled very well. The permissible

 7 exposure levels at the time were roughly equal to two

 8 gasses. Either it worked beautifully and perfectly or it

 9 didn't work at all. And when it didn't work at all, it was

 10 dramatic, in the case of these four or six people.

 11 Q Okay.

 12 A So I believe since the formaldehyde was

 13 controlled for which we had mountains of data, it is

 14 reasonable to conclude that the sulfer dioxide was

 15 controlled day-in and day-out. Not to say that now and then

 16 there couldn't be a little bit here and there, of course,

 17 but manageable.

 18 Q How did you come to investigate -- or did you

 19 come in after the fact, after these men had left and gotten

 20 whatever medical treatment they needed?

 21 A Well, actually we came in before the fact.

 22 We did some preemptive industrial hygiene monitoring on the

 23 research facility and forwarned the plants that if they go

 24 with this process, this is what they could be faced with.

 25 At that research process, no issues. Things were controlled

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 1 fairly well. But in response to your question, we were

 2 called in after the people reported to the plant medical

 3 department with health problems from the gas.

 4 Q And what did you do? Did you interview them?

 5 What did you do?

 6 A I interviewed one man. Somebody else

 7 interviewed one or two of the others. We didn't interview

 8 all of them, I know that. What did we do? We went to the

 9 plant. We measured ventilation, took air samples, we

 10 studied the work practices. We worked with the engineers on

 11 the injection rate of sulfer dioxide into the core-making

 12 materials. Our objective then was to make sure the process

 13 was operating in a way that it wouldn't cause further harm

 14 to people.

 15 Q All right. And, I guess, you said earlier

 16 that in these situations, in these four cases it was

 17 unnecessary to determine what their exposure to sulfer

 18 dioxide had been during that puff event, correct?

 19 A It served no useful purpose.

 20 Q So you agree with me that it was not done?

 21 A It was not done. It was massive. We knew it

 22 was massive. Whether it was 192 parts per million or 217.5

 23 is neither here nor there.

 24 Q Say that again.

 25 A It was not important to have a precise

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 1 estimation of whether it was 119 or 217 parts per million of

 2 sulfer dioxide gas was not important. It was a situation

 3 that was out of control that required engineering

 4 intervention and personal protective equipment.

 5 Q And from your report, there was something in

 6 terms of this sulfer dioxide, one of the features of it is

 7 that you can be exposed to several hundred parts per million

 8 and as long as you get out of there, get out of that area,

 9 it will not cause you permanent harm, correct?

 10 A That would be generally true for most people.

 11 If they didn't have any antecedent medical conditions such

 12 as asthma, that would be a generally true statement. If you

 13 can evacuate yourself from the area, there should not be --

 14 given biological variabilities.

 15 Q So I guess then going back to this situation

 16 with these four gentlemen.

 17 A There might have been six. It's been many,

 18 many years.

 19 Q You said one hand.

 20 A Okay, sorry.

 21 Q Those people were able to return to normal.

 22 I mean, after their medical treatment, they didn't have

 23 any --

 24 A I don't know.

 25 Q Well, you certainly would have been made

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 1 aware of it if there were continuing problems?

 2 A In a perfect world, yes. I managed a

 3 department of 22 people for half a million people. We were

 4 run ragged. In an idea world we would want that

 5 follow-through and coordinate with medical, maybe even visit

 6 the people at home. We didn't do that. We didn't have the

 7 luxury of doing that, frankly.

 8 Q Let me put it another way. You're unaware of

 9 any ongoing problem or permanent damage caused to the

 10 gentleman that were involved in those events at Ford?

 11 A Maybe they didn't have it, maybe they did. I

 12 have no idea.

 13 Q You agree with me, you're unaware of their

 14 having permanent damage?

 15 A That's right.

 16 Q So consequently, my question is on the basis

 17 of that experience, how are you able to correlate

 18 Mr. Newman's symptoms, his diagnosis of chemical pneumonitis

 19 to a concentration and a duration of exposure with the

 20 precision that you have been able to? Mindful that there

 21 has been -- no air sampling was done, correct?

 22 A Right.

 23 Q You have made no calculations as to the

 24 concentration of the sulfer dioxide in the area where

 25 Mr. Newman was, right?

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 1 A I gave you my best belief of what his

 2 exposure was. It's not precisely time-bounded. It's not

 3 precisely concentration-bounded. I cannot do that. Nobody

 4 can do that. What I have done in former cases where people

 5 have been exposed to sulfer dioxide, after the fact I or

 6 people I supervise would go in and take direct reading

 7 concentration of gas clouds or puffs of SO2 during not a

 8 singling, but the breakdown situation. We have had results

 9 quite frankly all over the place, but all of them were

 10 excessively high. They were so high, in fact, that we felt

 11 this process was unreasonably dangerous and we didn't

 12 authorize from our perspective continued use of it because

 13 Ford engineers couldn't guarantee better control and that

 14 was too much, so we abandoned the process.

 15 Q And my question, sir, is how can you look at

 16 Mr. Newman and say, okay, and he had choking sensation,

 17 irritation, and he had a diagnosis of chemical pneumonitis,

 18 and then say all right, that translates to -- given that the

 19 agent is sulfer dioxide, that translates to this

 20 concentration and this duration of exposure?

 21 A Well --

 22 MS. STORM: I'm going to object. I don't think

 23 we've gotten to concentration.

 24 Q Let me -- while we're on the subject, I

 25 thought you said between 100 and 200 parts per million over

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 1 between one and two minutes?

 2 A That's my belief.

 3 MS. STORM: Okay. I apologize.

 4 Q No problem.

 5 A I'm telling you it's based on my experience,

 6 it's my best --

 7 Q And you agree with me that with your

 8 experience -- the experience that you've had, when you've

 9 dealt with these four or five or six gentleman who were

 10 exposed during this foundry operation to a puffing event,

 11 that no one went back and measured the exposure that these

 12 gentleman had?

 13 A You can't do that. There is no way that can

 14 be done.

 15 Q All right. So you agree with me that you

 16 don't know what they were exposed to?

 17 A No, I can tell you it was excessive, but I

 18 can't tell you how much.

 19 Q Tell me what excessive means.

 20 A One bullet through the chest or ten? It

 21 really doesn't matter.

 22 Q Give me a range.

 23 A I did. I said I believe 100 to 200 parts per

 24 million, it could have been higher, for up to two minutes.

 25 That's about as precise as I can get.

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 1 Q Forget about Mr. Newman for a moment. Tell

 2 me -- do you agree with me that no one measured the SO2,

 3 sulfer dioxide exposure that was experienced by the men, the

 4 four to six men that you were involved with at Ford?

 5 A As they were inhaling the gas, that's

 6 correct. Nobody took air samples as they were exposed.

 7 Q And that's the basis for your comparison in

 8 Mr. Newman's case, is it not?

 9 A No, it's not. You're trying to narrow my

 10 opinions down to a handful of people a long time ago. I

 11 personally have taken air samples, hundreds of air samples

 12 for sulfer dioxide on hundreds of workers or hundreds of

 13 workplaces with hundreds of workers. And that's part of my

 14 collective experience. What is a problematic dose of this

 15 gas. And I'm pleased to report that the lion's share of

 16 them are not problematic. They're well controlled. There

 17 were a few that were not and this is what we're talking

 18 about. That is part of my experience too. I have a sense

 19 of what a threshold dose is. And as a matter of fact, so

 20 does NIOSH, so does OSHA, so does the American Industrial

 21 Hygiene Association, and so does the American Conference of

 22 Young Industrial Hygienists. They have not that absolute

 23 figure above which everybody is poisoned below which

 24 everybody is safe, but the most plausible threshold limit

 25 value that will protect the health of most people exposed to

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 1 it. It's not just four people out of many, many years ago.

 2 There's a collective data base out there. We have a pretty

 3 good understanding of how much SO2 would be injurious at

 4 what concentrations and for how long.

 5 Q If someone were exposed to ten parts per

 6 million, that's likely to induce coughing, won't it?

 7 A For how long?

 8 Q You tell me.

 9 A One breath, no. Half an hour, most people

 10 would say I prefer not to be around. Would it be lethal?

 11 No. Would it cause lung disease? Probably not, unless a

 12 person is hyper-susceptible and they're not asthmatic going

 13 in.

 14 Q Are you telling me that one minute in a

 15 concentration of ten parts per million of sulfer dioxide a

 16 person is ambivalent to the existence of the sulfer dioxide?

 17 A Some people might experience profound

 18 irritation, others are more stoic, much more stoic.

 19 Q And so if that's the case is the

 20 concentration of parts per million of the sulfer dioxide

 21 together with its duration so resulting in experiences that

 22 are so variable among different people?

 23 A There are variable to a point. Like I said

 24 earlier, if we were all exposed to 1 percent -- 10,000 parts

 25 per million -- for five or ten minutes, we're going to die.

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 1 Maybe not right away, but we'll all die. Everybody in this

 2 room sooner or later will die from that exposure. As the

 3 exposure goes down and the duration of exposure perhaps goes

 4 down as well, then it becomes more variable between you and

 5 me and these ladies. It would be a tremendous biological

 6 variability between one person to the next. The higher the

 7 dose the closer we all come to the same response. At the

 8 lower doses, there is tremendous biological variability.

 9 I've seen that in workers. I personally, for whatever

 10 reason, seem to tolerate more SO2 than some people who find

 11 it profoundly irritating. That is one of the reasons why

 12 the threshold limit value has been established where it is,

 13 to prevent irritation in most people, but not everyone.

 14 Q When you say low doses, tell me what you mean

 15 by that.

 16 A Well, it's a relative term. And the reason I

 17 say it's relative, sulfer dioxide as an ambient air

 18 pollutant is really high of EPA's hit list because the

 19 six percent of us who have asthma are profoundly affected by

 20 increased elevations of SO2 that comes primarily from our

 21 power plants. The rest of us don't have a problem.

 22 Q Sir, let me stop you there. And I'll let you

 23 explain whatever you want. Really, all I want to know is in

 24 the last sentence you said, you said in low doses of sulfer

 25 dioxide there's tremendous biological variability in the

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 1 responses that are experienced by the people who are

 2 exposed. And all I want to know is when you said low doses,

 3 what does that mean? Is a thousand parts per million, is

 4 that ten parts per million, 50 parts per million? Give me

 5 some understanding.

 6 A A low dose is relative to the recipient. An

 7 asthmatic can be profoundly affected by a dose that you and

 8 I might consider low and are they're broncho constricted to

 9 the point they are turning blue and they're calling 911 to

 10 save their life. So it's a relative term. If a person

 11 doesn't have antecedent asthma and they're occupationally

 12 exposed, they are adults, they can gainfully acquire a job

 13 and hold a job, dose low dose would be below the action

 14 level, that is below one part per million as an eight hour

 15 time waited average. But even there, there are no

 16 guarantees that that would be protective of the health of

 17 all people.

 18 Q What is your understanding of the -- you

 19 referred to him working under a process tank?

 20 A This is a conical tank. I think we have a

 21 diagram. He was on his back working underneath it

 22 installing insulation. This was a device, it appeared to be

 23 a mixing device. I saw one this morning. And presumably it

 24 has blades inside for mixing chemical products, an insulated

 25 conical-shaped vessel.

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 1 Q Where was the release? Where was the sulfer

 2 dioxide, the source of release?

 3 A I don't know.

 4 Q Take a look at --

 5 A I understand there is a debate about that.

 6 Q Take a look at the diagram that we marked as

 7 73. Does that help you answer my question about the

 8 location of the sulfer dioxide that was released?

 9 A Since I just received this today, I'll have

 10 to look at it carefully. I don't see anything on here where

 11 it indicates a release point.

 12 Q What's your understanding on which you base

 13 the report?

 14 A I don't know where the gas was released from;

 15 I really don't know.

 16 Q Is it not relevant to your opinions to know

 17 that?

 18 A Well, I believe it was released somewhere in

 19 Building A, but I can't tell you -- give you a valve.

 20 Somewhere in Building A, I can't be specific.

 21 Q How does the gas -- assuming it is released

 22 in Building A, how does it get into the area where you've

 23 drawn the N inside a circle to where Mr. Newman is?

 24 A There are several ways it can get in. First

 25 of all, there's not a contiguous wall. It had breeches, had

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 1 holes in it. There were holes in the back wall on the back

 2 side of this building. One of the two doors, I understand,

 3 was open about three to four feet on the day of the

 4 occurrence.

 5 Q How do you know that?

 6 A Well, I was told that by Mr. Newman.

 7 Q Did he tell you which door was open?

 8 A In one of the sketches it was this door,

 9 would have been the door closer to the taller part of the

 10 building. This door.

 11 Q Why don't you mark that with a circle, if you

 12 would, the door that Mr. Newman told you was open. It was

 13 open what? You have written --

 14 A He said it was open three to four feet, not

 15 fully. It's a ten-foot wide door, eight feet high.

 16 Q Is that what you have written, three to

 17 four feet?

 18 A Yes.

 19 Q How does the gas go to -- from Building A to

 20 Building B?

 21 A As I said, there were numerous breaches in

 22 this wall. There were breaches in the back wall. There was

 23 an exhaust fan that I understand was not operating at the

 24 time Mr. Newman was there. This door was open.

 25 Q And what's the basis for your understanding

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 1 that that exhaust fan was not operating at the time?

 2 A I asked Mr. Newman initially if there was

 3 ventilation equipment in the area. He said no. And

 4 yesterday when I talked to him specifically about this fan,

 5 he said it was not running.

 6 Q So how would the gas get into the area where

 7 Mr. Newman was?

 8 A Well, there are several openings, as I

 9 mentioned.

 10 Q I believe that you have identified several

 11 paths.

 12 A Several paths. There was another one, there

 13 was a floor drain where he was working. It's possible that

 14 it could have come through a floor drain. I don't know

 15 that. It's certainly an avenue.

 16 Q How does it get in the floor drain?

 17 A It was a liquid. It could enter the floor

 18 drain and if somebody doesn't pour a bucket of water down

 19 the floor drain every month or so, it acts like a gas

 20 entrance.

 21 Q What was the temperature that day?

 22 A I don't know.

 23 Q Let's -- it was March 17.

 24 A Uh-huh.

 25 Q Let me ask you to assume it's well above

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 1 14 degrees Farenheit. Is there going to be any liquid to go

 2 into any drain?

 3 A Not for a second. It's going to flash very

 4 quickly.

 5 Q Within a second -- we're talking less than a

 6 second, it's gaseous?

 7 A It depends on the volume. A large volume,

 8 it's going to take longer. A small volume, it's getting

 9 colder as it's evaporating.

 10 Q What's your understanding of the mass of the

 11 gas that was released?

 12 A There was a report by a P&G engineer of .38

 13 points.

 14 Q Are you aware of any fact that would

 15 contradict that report?

 16 A No.

 17 Q Do you have any professional dispute with the

 18 calculations or the conclusions of that report?

 19 A I didn't study it with that respect because I

 20 didn't have the equipment and I didn't have the plumbing,

 21 the valves and the containment.

 22 Q How about the methodology? Assuming the

 23 measurements were accurate; the methodology, right?

 24 A Well, there were measurements made of the

 25 physical equipment, not measurements of the gas

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 1 concentration, of course. The chemical engineering concepts

 2 that the P&G engineer took down, I have no problem with

 3 that. Conceptually, it's --

 4 Q All right. Based upon that, would you be

 5 able to calculate the volume of the gas in Room A, Building

 6 A?

 7 A If I have the dimensions of Room A,

 8 length/width/height, minus the equipment in the room, some

 9 net volume, ones that equipment is accounted for, and if I

 10 knew .38 pounds in so many cubic feet or cubic meters or

 11 whatever, I could calculate the concentration. That would

 12 be an average concentration. I could also calculate an

 13 average concentration as a function of ventilation in that

 14 room. I can calculate decay concentrations as a function of

 15 the peek concentration and what that concentration would be

 16 as the ventilation goes through. I can make a lot of

 17 calculations.

 18 Q Tell me how you would make those calculations

 19 from -- let's start with how do we calculate the

 20 concentration in parts per million of the sulfer dioxide in

 21 Room A?

 22 A Well, I'll go through the drill with you. So

 23 many pounds in a certain volume of air; that is mass volume.

 24 Then one would make a conversion into volume-volume, that

 25 would be parts per million. In other words, .38 pounds in

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 1 let's say how many thousand cubic feet in that room minus

 2 the net; that would give you milligrams of sulfer dioxide on

 3 average per cubic feet in that room. That would say the

 4 concentration one foot below the ceiling in this corner

 5 would be no different than one foot off the floor in that

 6 corner; that is the average concentration. Then one would

 7 convert pounds per cubic feet into milligrams per cubic

 8 meter by convention. Then one would one take milligrams per

 9 cubic meter and for ballpark purposes, given the temperature

 10 pressure that day -- Cincinnati being probably not much

 11 different than Detroit, maybe 700 feet above see level --

 12 times 24.45, divided by the molecular weight of sulfer

 13 dioxide, which is about 64.1. That would give you the

 14 average sulfer dioxide gas concentration throughout that

 15 room. It wouldn't say anything about high concentrations in

 16 one area and lower concentrations somewhere else.

 17 Q Now, let's talk about that. First off, 24.45

 18 is the volume of gas at those temperatures and pressure; is

 19 that right?

 20 A That is the gram molecular volume of gas;

 21 25 degrees centigrade and 761 degrees of pressure.

 22 Q Which is the standard?

 23 A Pretty much standard for an ideal gas. And

 24 sulfer dioxide would be pretty close to that.

 25 Q When the gas is released, how long does it --

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 1 I mean, maybe this is -- I'm using the wrong jargon, but

 2 what is its dispersion rate, if you will? How quickly does

 3 the gas try to achieve equilibrium?

 4 A Clearly molecules move around. And with

 5 sufficient time, there will be -- short of the gas molecule

 6 reacting with surfaces and being removed from the

 7 environment that way, there would be an homogeneous

 8 atmosphere. The concentration at any one point would be the

 9 same. Now, to answer your question, it's not a simple --

 10 cannot be done by simply. It's a function of primarily the

 11 mixing factor, the turbulence and the ventilation within a

 12 facility. There are other factors, thermal gradients, maybe

 13 even pressure gradients. But primarily it's the movement of

 14 air within that facility that causes the mixing, like hot

 15 water going into a bathtub of cold water. If you don't stir

 16 it, it's going to be hot at one end and cold at the other.

 17 But as you're stirring, it very quickly will become -- the

 18 stirring is analogous to a ventilation system.

 19 Q What would be -- I guess people just pick

 20 mixing factors based upon their experience and judgment?

 21 A Yes.

 22 Q And having been there today, what mixing

 23 factor would you chose in terms of when the gas enters --

 24 when it goes from Building A to Building B, the quickness at

 25 which it achieves equilibrium?

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 1 A I have never seen mixing factors applied

 2 between two buildings who are ostensibly separate. Granted

 3 there are breaches in that wall. But in a practical sense,

 4 those breaches do not allow for mass movements of tremendous

 5 volumes of air. They allow for movements of small volumes

 6 of air. I have never seen a mixing factor applied from one

 7 building to another building and vice-a-versa. If I found,

 8 for example, very poor ventilation in Building B or Building

 9 A, you could apply a mixing factor from anywhere from one to

 10 ten. I've never seen it from one building to the next; that

 11 is bizarre.

 12 Q Well, if we take it, as I think we've said,

 13 if the gas -- if the sulfer dioxide release occurs in

 14 Building A and Mr. Newman is in Building B and you have

 15 identified certain paths sulfer dioxide could that to go

 16 from Building A to Building B, how do we determine how

 17 quickly it would -- how long would it take to get to

 18 Mr. Newman?

 19 MS. STORM: I object to the use of the words

 20 "Building A."

 21 Q And you can --

 22 MS. STORM: Since it's not a building.

 23 A It was a tent as far as I'm concerned.

 24 Q I'm using that term solely as it is described

 25 on the diagram.

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 1 MS. STORM: Which we're also objecting to.

 2 A I can't tell you how quickly because there

 3 are numerous factors. A very important consideration in all

 4 this is if we assume this wind direction, setting aside

 5 velocity for a moment, was steady state. Having said that,

 6 it's rare that wind or God given ventilation is steady

 7 state. It's constantly changing in direction. It might be

 8 steady state for a minute or two minutes. But it's shifting

 9 in direction and in velocity, short of a gale. When the air

 10 was coming in this direction, as it was this morning, coming

 11 by the building that way, it creates a ram effect on this

 12 side of the building, positive pressure. On the leeward

 13 side of the building, the back side there is a negative

 14 pressure. As the building -- as the wind passes over the

 15 building, it creates a negative pressure and an envelope

 16 around the back side of that building. That negative

 17 pressure promotes intrusion of contaminants back into the

 18 building. And I believe that's the major way that the

 19 sulfer dioxide got from tent A, if you will, into Building

 20 B.

 21 Q And so take me through it with a pen, if you

 22 will -- or first, tell me the gas goes out of Building A,

 23 out that door, and turns right, goes around the building and

 24 through the lower pressure comes down, comes back in through

 25 some other source?

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 1 A It could be that way since we're talking

 2 about a non-rigid structure, it's certainly feasible or

 3 plausible that there are breaches in that structure at

 4 ground level.

 5 Q So, like, underneath the plastic, is that

 6 what you're saying?

 7 A Exactly.

 8 Q So anyway -- but am I right that it goes --

 9 and I don't want to write on your diagram, but you write on

 10 your diagram. But -- I'll tell you what, I'll write on

 11 this -- my scrap copy here. I get the impression you're

 12 saying that whatever -- wherever the source is, the gas

 13 comes and goes back through the low pressure side of the

 14 building?

 15 A Yes.

 16 Q And finds a way into the building in that

 17 manner?

 18 A Yes.

 19 Q All right. Can you tell me -- if that's --

 20 A Well, perhaps I can show you with a side

 21 view, if I may.

 22 Q I'll tell you what. I'm going to give you

 23 another piece of paper, that way we'll mark this as 74. And

 24 this way you'll have -- I'm sorry, I always get leary when

 25 we have got double-sided copies. Okay.

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 1 A I'm going to draw -- give you a ground level

 2 building. Let's say there is a stack and let's say there is

 3 another stack in that building for some process. And the

 4 prevailing wind is in this direction, whatever velocity.

 5 What you will get is, of course, when the wind hits that

 6 building, it's not going anywhere. Since it has momentum,

 7 there will be equal contours of air passing around the

 8 building. And say we had a make-up air inlet on the

 9 building on this side.

 10 MS. STORM: A what?

 11 A A make-up air inlet, an exhaust fan -- let's

 12 just put a hole in the building. This is going to be a

 13 positive pressure on this side. As the air sweeps over the

 14 building, it's going to continue its momentum. It's going

 15 to keep going in this direction. It's not going to

 16 magically come back in the building as your first drawing

 17 suggests. This is going to be a negative pressure side of

 18 the building on the leeward side. If this was a process

 19 that was giving off a contaminant, there will be turbulence

 20 around the back side of the building like this -- it's not

 21 exactly like that -- to which to air pollution engineers and

 22 ventilation engineers and people like myself, industrial

 23 hygienists, it's very important to have a source contaminant

 24 above this eddy zone, such that a stack like this, the smoke

 25 is entrailed and it has little opportunity to get sucked

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 1 back in the building.

 2 The point being made is that a contaminant

 3 released let's say close to ground leve back in this eddy

 4 zone is going to be caught and brought back in the building.

 5 Stack heights are important, release points are important,

 6 but you have some meteorology, for lack of a better word,

 7 negative pressure on the leeward side of the building, every

 8 industrial hygienist, as it's been a bugaboo from the

 9 get-go, we see this all the time, we see it not only in

 10 industrial plants, but at schools, hospitals, shipping

 11 docks, where air contaminants aren train and brought back

 12 into the building, not in as high a concentration as the

 13 release point, there is considerable dilution in many cases.

 14 But there are situations there are rich concentrations --

 15 not in rich concentrations, but high concentrations are

 16 simply taken out and brought right back in through the

 17 turbulence. This is not the best diagram.

 18 Q That is terrific. Please though take the

 19 original of Exhibit 73 and now with a bird's eye view

 20 looking down, suggest to me the eddy effect that you

 21 portrayed on Exhibit 74.

 22 A What I'm doing now is not -- is something

 23 that in many cases to give you all the eddy currents at any

 24 one point in time we need many factors: Time of day, solar

 25 load, barometric conditions, temperatures, wind velocity,

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 1 changing wind velocity. But in general you have a positive

 2 pressure effect coming this way and it's going to create the

 3 greatest negative pressure in an envelope that surrounds --

 4 Q I'm going to give you another diagram. We'll

 5 mark this as 75.

 6 A I mean, literally, everything -- if this

 7 building stood alone or by itself, the situation would be

 8 very simple. But when you have intervening terrain,

 9 intervening structures as we did over there, the turbulence

 10 and the eddy currents and what we call diffusivity currents

 11 become extremely complicated. And frankly I'm not going to

 12 put educated arrows on a piece of paper. I'll tell you that

 13 the back side of this building is under a negative pressure

 14 but the turbulence of the other buildings can have a

 15 profound effect on the degrees of negative pressure behind

 16 that building. And, frankly, I think you're trying to pin

 17 me down into something that will come back to haunt me.

 18 Q I'm trying to understand your testimony.

 19 A I think you understand it. I think you

 20 understand what I'm getting at. I think you understand that

 21 when you have a prevailing wind this way, you have negative

 22 pressure behind the building that can be affected by

 23 velocity, direction, solar loading, geographic features, if

 24 there were hills, and certainly tall structures around that

 25 building, all have a bearing on air flow.

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 1 Q I marked Exhibit 75. Are you unwilling to

 2 tell me where this negative pressure is?

 3 A You want me to take something that's a very

 4 sophisticated process that probably should be done in many

 5 cases to give you all the little educated arrows by a

 6 computer modeling program.

 7 Q So I take it you are declining to indicate on

 8 this diagram where you think the negative pressure area is

 9 with the proviso --

 10 A Be happy to.

 11 Q -- that's it's something that is complex.

 12 A The negative pressure area literally is in

 13 this envelope from -- this was not a building then, assuming

 14 the tent structure took that geometry like this. And, of

 15 course, that could extend out. It's not a magic line. From

 16 that point to this point, we're in a negative pressure in

 17 building eddy currents based on prevailing winds sweeping

 18 over the building this way. Positive pressure here,

 19 negative pressure there.

 20 Q Let me ask you to assume that this door is

 21 open when -- and I'm pointing to the door that is at the top

 22 of Building A on Exhibit 75. Assuming that's open at the

 23 time of the sulfer dioxide release within Building A and

 24 assuming the wind direction is in the prevailing method --

 25 or in the prevailing direction as described and discussed

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 1 here in the last several minutes. Will sulfer dioxide that

 2 vents through this building through this door have any way

 3 of entering the garage door that Mr. Newman says is open as

 4 indicated on Exhibit 73 by the circle that you have drawn or

 5 rather will it go through to that negative area?

 6 A It's not either/or. There is tremendous

 7 diffusivity, there's boiling air, moving of air. As long as

 8 air is coming this way, you're going to have negative

 9 pressure. As there is negative pressure here, there will be

 10 a negative pressure shadow along -- probably pretty much

 11 following that axis. Within that shadow, for lack of a

 12 better term, there is going to be an invisible maelstrom of

 13 air moving around. Sometimes we have observed that pieces

 14 of paper will float up a wall. You are standing there in

 15 two corners of a building and a piece of paper -- or dust

 16 devil dance, going up and down, not going much of anywhere,

 17 sometimes slamming into a wall, sometimes settling down,

 18 sometimes being picked up and swept away. But in that

 19 shadow you have that turbulence, absolutely. There's no

 20 question in my mind that there can't be entry through an

 21 open door in that direction. There is nothing mysterious

 22 about it.

 23 Q How about gas coming over around this corner

 24 and into a vent on this side of the building?

 25 A It's unlikely. As long as you have got the

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 1 ram effect here, assuming -- there were buildings there, but

 2 you still have air moving in this direction. It's unlikely

 3 that SO2 gas molecules will get out of this and go this way.

 4 They will mostly be swept this way once they're in that

 5 negative air pocket in that corner.

 6 Q Given the pressure that you've described on

 7 the side of the building here, would there be any reason for

 8 the sulfer dioxide to go through any of the holes in the

 9 wall that you described, the breaches in that wall between

 10 Building A and Building B, given the negative pressure

 11 system on the side of this plastic sheet or tent, as you

 12 call it?

 13 A Well, I don't know about the rigidity of the

 14 plastic sheet. But if it's a billows effect, if it's a

 15 fairly windy day and you're getting a pulsating billows

 16 action, sure that could be squeezing past it through the

 17 hoes. It's plausible. I don't know if it's --

 18 Q Let me ask you to assume what we've got

 19 here -- if you assume this, that this wall that is marked

 20 17 feet and this wall that is marked 31 feet were comprised

 21 of a chain link fence to which was affixed that plastic

 22 sheeting, would that give you a rigidity that would preclude

 23 that billows action you were talking about? What does that

 24 do?

 25 A I want to know how the plastic was attached

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 1 to the chain link fence. You have either side, it can puff

 2 one way or the other. I'm just saying it's a possibility.

 3 I don't know how probable it is. It's something that should

 4 be considered.

 5 Q What do you think is more likely?

 6 A I don't know. You're trying to paint a

 7 picture and I'm not getting it. You can have a chain link

 8 fence and you can have plastic sheeting on one side or the

 9 other, and if it's not secured very well, it's on the top or

 10 the bottom, it can billow out and billow in.

 11 Q Based upon what you know and your view of the

 12 records, do you think the sulfer dioxide is going to go out

 13 the door and into the Building B area via either the

 14 negative pressure envelope that you've drawn or do you think

 15 it's going to go through the holes in the wall? Which do

 16 you think is the more likely path?

 17 A Well, you're asking me for either/or. It has

 18 to be one or the other. I don't think it's that simple. It

 19 could be all.

 20 Q Which do you think would be the predominant

 21 one?

 22 A I believe the predominant one would be

 23 through the back, the negative pressure on the back of the

 24 building. I should mention during my inspection that I saw

 25 three covers on the back of Building B that were not part of

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 1 the original construction. These were scab plates maybe

 2 two feet long by a foot high fastened to the wall. So at

 3 one time there was a breach. Arguably, it could have been

 4 done last week, I don't know. But there were openings into

 5 that building. Who knows when and for what.

 6 There are three -- assuming that the SO2

 7 release was from Building A, at some point in Building A

 8 unknown or over which there's dispute, there are three

 9 avenues of entry, all plausible in my view and it's not

 10 either/or. If I were to rank them, I guess you'd ask me

 11 that, I shouldn't be volunteering anything.

 12 MS. STORM: No, you shouldn't. Shut up.

 13 A Shut up. I will not do that.

 14 Q Let me ask you this. How would you rank

 15 them?

 16 A What do you mean by ranking? Sorry. The

 17 back of the building, one; two in through the door; three,

 18 through the breaches of the wall.

 19 MS. STORM: Doesn't that depend on where in tent

 20 A?

 21 A Absolutely. To me, it's a black box.

 22 Somewhere in this black box it came out, and where it went

 23 from there.

 24 (Break taken.)

 25 BY MR. THOMAS:

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 1 Q Sir, on page two of your report it says, "In

 2 summary, a reasonable degree of scientific certainty

 3 Mr. Newman's chronic lung disease is more likely than not

 4 attributed to his acute inhalation." What I want to know is

 5 are we talking scientific certainty or are we talking more

 6 likely than not?

 7 A I'm not sure.

 8 MS. STORM: Object to the foundation of the

 9 question.

 10 A I don't understand the question.

 11 Q Would you describe that you hold your

 12 opinions to a certainty or, as you use the phrase here, more

 13 likely than not?

 14 A They are really synonymous. Certainty is a

 15 percentage, if you will. Somewhere between zero and a

 16 hundred.

 17 Q What percentage would you say that is?

 18 A More likely than not is 51 percent. I can't

 19 give you a specific percentage. Nobody can.

 20 Q You can't define it more precisely than 51

 21 percent. But those terms, you intend them to be read

 22 synonymous?

 23 A If you want me to guess, I would say it's

 24 closer to a hundred than 50, I will tell you that.

 25 Q Are you saying it's a hundred? I'm asking

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 1 you the question.

 2 A No, in this business there is no hundred

 3 percent in anything. Some things are: Gravity, taxes,

 4 death. But there is always some uncertainty, of course.

 5 Q In your report you indicate that Mr. Newman

 6 was chronically ill afterwards. What is your understanding

 7 of what his condition is or was after March 1999?

 8 A I understand he still has breathing

 9 difficulty. I don't know to what magnitude.

 10 Q How do you have that understanding?

 11 A I read Dr. Hirsh's report. Apparently he has

 12 atrial or ventricular fibrillation on a spasmodic basis. I

 13 don't know the degree. I'm not a cardiologist, of course,

 14 or physician. But it's my understanding he has medical

 15 problems attributed to his exposure.

 16 Q Is it fair to say that you hadn't read that

 17 when you made your report on October 27, 2001, right?

 18 A No, but Ms. Storm said that to me and I had

 19 no reason not to accept that on her word.

 20 Q So Ms. Storm told you he was chronically ill?

 21 A Yes, maybe not in those words, but that is

 22 the sense I got.

 23 Q Ms. Storm's comments to you were the basis

 24 for your writing that particular point in your report?

 25 A No, you're trying to mischaracterize.

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 1 Q I'm trying to understand, sir.

 2 A She mentioned to me initially at the

 3 inception of this case that her client had health problems

 4 that weren't there. And I believe I probably asked her how

 5 is his health -- how is Mr. Newman's health prior to

 6 exposure -- and she gave me her opinion -- and how is it

 7 now. His health problems are ongoing. And down the road,

 8 more likely than not, she said she would be sending records

 9 to me for review in connection with that.

 10 Q So would agree with me then that her

 11 information was the source of your statement on October 27

 12 that Mr. Newman was chronically ill afterwards?

 13 A I believe it was at that time. I had records

 14 to review, of course. I can't sort out easily all the

 15 records I had up to pre-report and post-report. But I have

 16 a caveat in my report, should I be presented with things

 17 that fly-in-the-face of my opinions, I reserve my right to

 18 resurrect those opinions and modify them as appropriate.

 19 Q Well, a couple hours ago we couldn't remember

 20 whether you had reviewed medical records or not. Has

 21 something happened since you made that statement?

 22 A No, I really don't recall. I read medical

 23 reports. I guess in a way that is a medical record,

 24 specifically it probably is not a medical record, more

 25 likely than not would be laboratory test results, but it is

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 1 a matter of semantics.

 2 Q You didn't read any medical reports prior to

 3 October 27, did you?

 4 A I don't think so.

 5 Q Now, you used the word "massive" a couple

 6 times in your report. I take it that that's just intended

 7 to mean 100 to 200 parts per million, right?

 8 A Anything above that. Anything above an ideal

 9 H concentration is immediately dangerous to life and health.

 10 Is a thousand more massive than a hundred? Of course it is.

 11 It's an imprecise word, but I have a sense of what it means.

 12 Q No, I just want to understand it. In

 13 paragraph five, page two, you talk about a collection of

 14 conditions: Irritations in the nostrils, pharynx, trachea,

 15 upper bronchi, rhinitis, dryness of the fluid, broncho spasm

 16 and coughing, broncho constriction, chemical broncho

 17 pneumonia, bronchiolitis obliterans, reactive pathways,

 18 reactive airways disease, high pitched rales?

 19 MS. STORM: Could I just again correct the record?

 20 My March 28 letter to Mr. Wabeke in the file that you all

 21 reviewed indicated that I sent him copies of the medical

 22 records. And I also sent him copies of Rick's answers to

 23 interrogatories, which included some indication as to what

 24 his injuries were.

 25 MR. SCOTT: I think one thing for the record, once

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 1 Mr. Wabeke has a chance to take a look at his file here and

 2 back in Michigan, I would like a copy of the entire file and

 3 I think we shall mark it as exhibit to the deposition so

 4 there is no misunderstanding as to what the witness did

 5 review.

 6 MR. THOMAS: Let's go ahead and do that.

 7 (Off-the-record discussion.)

 8 BY MR. THOMAS:

 9 Q Your report indicates that Mr. Newman was

 10 trapped under the tank and unable to immediately escape.

 11 A He was on his back. He was lying on his

 12 back, that to me indicates -- he's not physically trapped,

 13 he's not ensnared in something.

 14 Q Is it fair to say from your looking at that

 15 tank today, being on your back underneath that tank, if

 16 indeed that is where he was, one can get off their back and

 17 get up and leave the area if one needs to?

 18 A Well, he did that.

 19 Q So being under there working, you wouldn't

 20 call that being trapped, correct?

 21 A It protracts the exposure, absolutely.

 22 Q Protracts the exposure in what sense?

 23 A Duration.

 24 Q By how long, how many --

 25 A I don't know how many seconds. It's going to

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 1 protract it a little bit.

 2 Q I guess that comes down to what we mean by

 3 immediately.

 4 A I can't give you definition of immediately.

 5 We're talking microseconds.

 6 Q Well, I guess my -- again, let me rephrase

 7 it. I guess I haven't made it clear. Mr. Newman's on his

 8 back by this tank. How much longer does it take him, how

 9 much time does it add to his exposure because he's lying on

 10 his back?

 11 MS. STORM: Can I interject an objection? I don't

 12 think that that accurately describes Mr. Newman's testimony.

 13 This is one of the problems with not having the transcript

 14 done. There are some other factors -- and again if you want

 15 me to send him out of the room, we can talk about it -- that

 16 you're not putting in the question.

 17 Q Well, you have preserved your objection.

 18 MS. STORM: Then go ahead and answer if you can.

 19 Q It's not -- he's had two conversations with

 20 Mr. Newman. Tell you what, you just explain to me paragraph

 21 seven, which is on -- the portion that I want is on page

 22 three of your report where it says, "Please note Mr. Newman

 23 was underneath the tank he was insulating and escape was not

 24 immediately possible." I, mean are you trying to suggest he

 25 was stuck there like in a confined space or anything like

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 1 that?

 2 A No, no, I'm saying he can't bolt for the

 3 door. He's on his back and he has to get up. To get up,

 4 institutes a delay.

 5 Q Okay.

 6 A I don't know how long the delay is, a second.

 7 There is an exertional component to doing that. That means

 8 a second or a deeper breath. That is all part of the human

 9 factor elements in this situation.

 10 Q We're not talking --

 11 A He's not pinned to the wall.

 12 Q Okay. Are you familiar with the Anderson

 13 study that looked at human response to controlled levels of

 14 sulfer dioxide in 1974?

 15 A No.

 16 Q Would you take --

 17 A What was the journal?

 18 Q If you were to -- if I were to suggest to you

 19 that they concluded that 25 parts per million of sulfer

 20 dioxide was what they described as intolerable on first

 21 contact, would you agree with that?

 22 A With some people, perhaps most people, yes.

 23 Q What is bronchiolitis obliterans? I

 24 apologize if I'm mispronouncing it.

 25 A You said the Latin correctly. It's a medical

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 1 condition in that the bronchioles, the internal airways that

 2 connect to the alveolar portion of the lung have been

 3 destroyed to the point that their elasticity is deeply

 4 affected and it tends to be a progressive condition that can

 5 lead to fibrosis in some cases. It is often terminal and

 6 fatal.

 7 Q Are you supposing -- are you suggesting that

 8 Mr. Newman has that?

 9 A No, I can't do that. I'm not a

 10 pulmonologist. I'm not a physician. Based upon my

 11 understanding of the inhalation toxicology of sulfer

 12 dioxide, I don't believe his dose was sufficiently high to

 13 induce that condition.

 14 Q Likewise, he doesn't have chemical bronchial

 15 pneumonia?

 16 A No, not today.

 17 Q Did he ever?

 18 A Well, it's unlikely. I don't know.

 19 Q There is -- in paragraph nine of your report,

 20 there is a parenthetical reference Tab Bio Per 1933. Can

 21 you tell me what that is?

 22 A That's the author of a 1933 study that showed

 23 that for some reason they were able to measure or reasonably

 24 reconstruct an exposure to a human being to 3,000 parts per

 25 million of sulfer dioxide for five minutes that resulted in

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 1 that person or person's death.

 2 Q All right. I understand that about the

 3 Shupe, but what is Tab Bio Per?

 4 A That is the name of a person, probably

 5 Norwegian or sounds like a Scandinavian name. I don't know,

 6 that is the author.

 7 Q That is the guy's name?

 8 A Uh-huh.

 9 Q Okay. It almost looked like a footnote.

 10 A It does really, Bio Per, that is a person's

 11 name as in Shupe or Shupe Tab Bio Per. No, it's a person's

 12 name.

 13 Q All right. In the report in your testimony

 14 here, you correct me if I'm wrong, but I think we've been

 15 talking about your opinion that he was exposed between 100

 16 and 200. And in some parts of your report it talks about

 17 between 100 and 300. Is there any basis for the 200 to 300?

 18 A No.

 19 Q Okay. So what I should be focusing on in

 20 your opinion is -- or your conclusion is the concentration

 21 is between 100 and 200 parts per million of sulfer dioxide

 22 for a duration of between one and two minutes?

 23 A That's right.

 24 Q Now, with respect to the requirements, the

 25 OSHA requirements that you cited in your report, is it fair

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 1 to say that the threshold quantity for sulfer dioxide that

 2 triggers these requirements is a thousand pounds?

 3 A No.

 4 Q It's not true?

 5 A No, those threshold quantities are based on

 6 protection of the community and not workers.

 7 Q So it has no application whatsoever to

 8 workers?

 9 A Well, it does in the sense that if you have

 10 sulfer dioxide on your premises and if you have a pound of

 11 it and if it's foreseeable that one pound of sulfer dioxide

 12 could put workers in harm's way, then there is a duty upon

 13 the employer and others. But if it's a thousand pounds that

 14 also implies the duty upon the employer for their employees

 15 and business invitees, but as well to the community.

 16 Q If I have a tank of sulfer dioxide at a work

 17 site and all it is it's just being stored there, do the

 18 workers in the vicinity of that have to do the kinds of

 19 things that you've described in your report? Have

 20 self-contained breathing apparatus and pagers and police

 21 whistles and things of that nature if it is merely a tank

 22 there being used for storage?

 23 A The tank of SO2 would be a hazard: closed,

 24 opened or otherwise. It becomes a risk when there is an

 25 exposure. The employer has a duty to estimate the risk and

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 1 to project the exposures, and then implement a plan

 2 accordingly.

 3 Q And I guess my question is if there is a tank

 4 there, it's in a tank, and there is no reason to suspect

 5 that the tank is flawed in any way that a leak might occur,

 6 do the employees have to -- that have to work in that

 7 vicinity or in adjacent buildings or rooms have to wear

 8 self-contained breathing apparati?

 9 A I think I know what you're getting at, Scott.

 10 The issue here is a what-if analysis. There are various

 11 types of analyses that have to be done. If it is

 12 foreseeable there could be a release -- and the duty is upon

 13 those who create the hazard. And this would be those who

 14 purchased or procured the sulfer dioxide. They have to go

 15 through a risk assessment and risk consequence and a risk

 16 management program to ensure that if there is a risk, if

 17 it's foreseeable that there is going to be a release, then

 18 they have to have a plan in place to protect. Now, that

 19 plan might include self-contained breathing apparatus, it

 20 might not; it depends.

 21 Q With respect to the prospect that if there is

 22 a tank that is used for the storage and it's just -- it has

 23 got say 10 pounds of liquid sulfer dioxide in a tank, what

 24 are the risks of that causing a danger to workers in that

 25 environment when the tank is not used for any process?

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 1 A Well, you are using terms that I use when I

 2 teach safety engineering, I want to make sure we're on the

 3 same wave length. Risk, danger, hazard do not equate.

 4 Sulfer dioxide is a hazard regardless of if it's in an open

 5 system, a closed tank. If it is on the moon it is a hazard

 6 because of its very natures. The risk comes as a result of

 7 exposure. The exposure can be one-third of an inhalation or

 8 it could be a room engulfed with clouds of sulfer dioxide

 9 that would be lethal to all of us. The risk is a function

 10 of the exposure to a hazard.

 11 Q Freon is a hazard, right?

 12 A That's right.

 13 Q I have got freon in my refrigerator? Should

 14 I be wearing a self-contained breathing apparatus when I go

 15 get a glass of milk?

 16 A If in your analysis as a safety engineer

 17 there could be an exposure, yes, or something. You need

 18 something to protect.

 19 Q Okay.

 20 A That requires the rigor and a robust analysis

 21 on those who create the hazard. It is that simple.

 22 Q Does the fact that -- my understanding is

 23 sulfer dioxide is heavier than air?

 24 A In its pure form it's a little over two times

 25 heavier than air, yes.

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 1 Q 2.25?

 2 A That sounds right. 29 into 64.

 3 Q Sorry?

 4 A Divide 29 into 64 will give you a ball park

 5 idea.

 6 Q Twenty-nine would be the atomic weight of

 7 atmospheric air?

 8 A It's the apparent molecular weight of air.

 9 Air is a mixture of gases.

 10 Q A bunch of stuff?

 11 A It would be based on that combination of

 12 gasses of an apparent molecular weight of about 29.

 13 Q And 64 is sulfer dioxide?

 14 A Yes.

 15 Q So the fact it is heavier than air, does that

 16 have any role whatsoever in the subject that we've been

 17 discussing here?

 18 A Well, pure sulfer dioxide gas released say

 19 closed to the ground or floor level at a wall, for example,

 20 that has a breach in it, that can easily migrate through

 21 that breach. There would be mixing with air, then it

 22 becomes diluted. As it becomes more diluted, the effective

 23 specific gravity of the mixture becomes more air-like and

 24 less sulfer dioxide-like. In other words, you mix one part

 25 of sulfer dioxide gas, which is over two times heavier than

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 1 air with 99 parts air, the average, if you will, the

 2 specific gravity of the mixture is going to be more like air

 3 than sulfer dioxide. But it takes time for that to happen.

 4 So if we were to throw a cupful of sulfer dioxide on the

 5 floor it this room, it would evaporate very quickly, but it

 6 would hover at the floor a long period of time unless there

 7 was mixing and ventilation in this room, ventilation systems

 8 and people walking about moving their arms and legs. It

 9 takes time, but eventually those SO2 molecules would mix

 10 throughout the entire air in this room and we would have an

 11 average concentration. That would take time.

 12 Q So they are not like liquids in the sense

 13 that if I have water and kerosene and I put them in a jar

 14 and shake it up and put it on the desk and wait,

 15 eventually -- maybe it won't take that long, but the

 16 kerosene will be on the top?

 17 A Very quickly.

 18 Q And the water will be underneath because the

 19 kerosene is lighter than the water or less dense?

 20 A That is right because those are incompatible

 21 materials. It's an organic material and an aqueous

 22 material, but gas molecules don't behave like that.

 23 Q So they would mix and achieve equilibrium

 24 over some period of time?

 25 A Right. But once mixed, the sulfer dioxide

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 1 molecules aren't going to settle out of the air. The air

 2 molecules rise, but to get to that point takes time. There

 3 literally can be -- perhaps you have driven down the highway

 4 sometime and you see a layer of fog on the highway. Cars

 5 drive through and they start mixing it, but then it just

 6 sort of comes back in and stays there.

 7 Q That's been known to happen in this area.

 8 A That's right, but that is not uncommon. Then

 9 you get solar heating, you get more turbulence from

 10 vehicles, and 18-wheelers start to mix it up, but it takes

 11 time to get there. Once mixed, those water vapor molecules

 12 that are condensed in the fog become vapor molecules in the

 13 atmosphere. Until they come out as rain or snow, they will

 14 stay there.

 15 Q And the factors that go into that are so

 16 complex that you're unable to articulate what -- how long it

 17 would take for that mixing to occur if the gas in room A or

 18 Building A got into room B or Building B as we're describing

 19 it?

 20 A There might be some programs that one could

 21 use, but I've yet to see them applied to buildings. There

 22 are diffusion equations and mixing -- complex equations that

 23 can be used for predicting atmospheric concentrations

 24 outside of buildings, air pollution dispersion estimates.

 25 You can buy ten different sets of software and get ten types

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 1 of answers, but they don't apply to buildings.

 2 Q Let me ask you this. When this sulfer

 3 dioxide gets released, and if it gets to Mr. Newman, it had

 4 to get there somehow, right?

 5 A Yes.

 6 Q You've given us a couple different paths that

 7 it could take. How long does it take to get there?

 8 A You have asked that. I said I don't know, it

 9 depends on many variables, physical variables.

 10 Q Is it something like -- is it do these

 11 molecules travel at the speed of light, at the speed of

 12 sound, at the speed of molasses in January to coin a phrase?

 13 A The mixing of the SO2 molecules or any

 14 molecules throughout air, such as the air in this room, is

 15 not based on their molecular speed. The predominant factor

 16 is one of turbulence of the air. That can be caused by

 17 biomechanical means, a fan, people walking by, plus thermal

 18 gradients from floor to ceiling. Those are the two major

 19 mixing forces, not their intermolecular speed, that has

 20 essentially no bearing on the migration. In other words, a

 21 sulfer dioxide molecule in this corner is not going to get

 22 to that corner by its speed as a molecule. It's going to

 23 get there because the air is starting to mix. And randomly,

 24 it could be anywhere for that matter. It doesn't have to go

 25 there. But if we have a cubic foot of sulfer dioxide gas in

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 1 that corner and 99,999 cubic feet of pure air everywhere

 2 else, eventually that will mix in. It's like a cup of tea,

 3 you have got the concentrated tea in a bag and then it mixes

 4 and it's homogenous. It never settles out after that point.

 5 Q You're unable to offer any prediction on how

 6 long that would take on this case?

 7 A I can't do it on the back of an envelope. I

 8 wasn't asked to do that, nor do I think it's important

 9 personally.

 10 Q And you're unable to gives a ball park

 11 estimate?

 12 A Because the variables that are necessary are

 13 wind velocity, wind direction, mechanical air handling

 14 system velocity and direction, pedestrian traffic, thermal

 15 gradients, and a whole host of other factors, turbulence

 16 factors within a building.

 17 (Off-the-record discussion.)

 18 A Which introduces, you know, if it is a valve

 19 and gas releases and there's a pressure, there is a momentum

 20 effect and a buoyancy effect of the gas that is released.

 21 MR. SCOTT: How much of that was on the record?

 22 THE COURT REPORTER: Only his answer was on the

 23 record.

 24 MR. SCOTT: Can you read the question back to me?

 25 (Off-the-record discussion.)

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 1 MR. SCOTT: There's no question on the table so I

 2 move to strike any reference to a valve being open.

 3 BY MR. THOMAS

 4 Q Tell me what a time-waited average is as it

 5 bears on the information in your report about OSHA

 6 requirements.

 7 A I refer to time-waited averages just to give

 8 Mrs. Storm a notion of what an eight-hour average exposure

 9 would be to a chemical or should be for a chemical. And I

 10 think I cite several of them: The NIOSH recommended

 11 time-waited average limit, the American Industrial Hygiene,

 12 the American Conference of Governmental Industrial

 13 Hygienists recommended time-waited average, and the OSHA

 14 regulated statutory time-waited average. Very simply, the

 15 time-waited average is traditionally based on an eight-hour

 16 work exposure. There are provisions for overtime, but to

 17 keep it simple, if all of us worked in an environment for

 18 four hours and our exposure to a gas was ten parts per

 19 million, and then for the next four hours we worked at an

 20 exposure to say 20 parts per million, our eight-hour

 21 time-waited average exposure would be 15 parts per million.

 22 We had a lower exposure before lunch and a higher one after

 23 lunch, but on an eight-hour basis it averaged out to 15.

 24 Q Let me ask you this. What's the eight

 25 hour -- say a person works for seven hours and 45 minutes

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 1 and has no exposure to sulfer dioxide. And for 15 minutes

 2 they have an exposure of X, what's their --

 3 A One would have to calculate it.

 4 Q And how would that calculation be made?

 5 A Well, essentially, eight hours is 480

 6 minutes. Seven hours and 45 minutes is four hundred what 30

 7 minutes, 420 minutes, right?

 8 Q Seven hours is 420.

 9 A 450 minutes. So you would take 450 minutes

 10 times zero in brackets plus 15 minutes times that exposure,

 11 X, add those two groups together and divide by 480 and that

 12 would give --

 13 Q That would give you the time-waited average?

 14 A Yes. But having said that, I think it's

 15 important to understand with brief exposures to very high

 16 concentrations that simple formula is often not used.

 17 Arguably, one could have a time-waited average exposure of

 18 carbon monoxide of 35 parts per million, which would be

 19 neither here nor there, say over a ten-hour work shift, but

 20 have a three-minute exposure to 10,000 parts per million

 21 which would kill the person. They would be dead in five

 22 minutes. So one has to consider the dose and dose response,

 23 so the numbers game can be quite misleading.

 24 Q And that's why you presumably refer to the

 25 National Research Counsel's Emergency Exposure guidance

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 1 levels for different time frames? That kind of addresses

 2 the things you were talking about?

 3 A Not exactly, but it addresses that issue.

 4 Q Same concept?

 5 A Same concept. We can run our finger through

 6 a flame and never burn it, but if we hold it there long

 7 enough the same temperature will burn our skin.

 8 Q These levels are chosen with a view toward

 9 selecting a level of exposure such that they can prevent

 10 injury to workers, correct?

 11 A Well, some of those limits are for the

 12 general public. Some are for workplace exposure. I should

 13 mention there is no one limit that is protected for

 14 everyone, based on individual responses -- reaction to

 15 chemicals. But these levels are selected to be, one,

 16 reasonably achievable and, two, would provide a great deal

 17 of protection for almost everybody. Not everybody, there

 18 would be a few who would be at risk.

 19 Q All right. Let me -- I know some of these

 20 documents are -- I understand we're going to mark the entire

 21 file and mark that as Exhibit A to the deposition?

 22 MR. SCOTT: Yes.

 23 Q All right. I think it's safe that I'm going

 24 to refer to some documents from that soon-to-be-marked

 25 Deposition Exhibit A and I'll refer to them by date. If

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 1 there is any question, it should be taken care of. There is

 2 a letter in the file that is dated March 28, 2000, from

 3 Ms. Storm to you thanking you for agreeing to assist

 4 Mr. Newman in this case. One of the things that it encloses

 5 is item number four which reads, "A memo, which is work

 6 product and confidential, setting forth our admittedly

 7 sketchy knowledge of the facts at this time." Please tell

 8 me what was in that memo.

 9 A I don't remember.

 10 Q Do you have a copy of that memo?

 11 A Not here. Its in -- well, now two offices,

 12 yes, most likely. It's unlikely it is gone, destroyed or

 13 missing. It's in one of two offices, yes.

 14 Q And do you recall how long that memo was?

 15 A I'm sorry, I don't.

 16 Q Do you recall anything about it that would

 17 help us?

 18 A No, I mean, I'm just speaking in very general

 19 terms. The memo pretty much outlines my understanding of

 20 the issues. It might have raised some questions on my part,

 21 I don't know that it did.

 22 MR. THOMAS: Off the record.

 23 (Off-the-record discussion.)

 24 Q There is a letter dated October 23, 2001,

 25 from Ms. Storm. Let me hand this to you and if you have

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 1 any --

 2 A What would you like me to do with it?

 3 Q Well, I'm going to ask you some questions

 4 about it, but I wanted to refresh your recollection before I

 5 did so. Can I take that back when you're ready?

 6 A Sure.

 7 Q All set? This letter as I said is dated

 8 October 23, 2001, which is four days before your report.

 9 Had you written anything prior to receiving this?

 10 A No. I wrote my report that day or perhaps

 11 started the day before. Typically, the date that I mail the

 12 report is the date I complete it. And a report such as that

 13 is not a long -- it started that day.

 14 Q Had you had any contact between March 28,

 15 2000, and October 23, 2001?

 16 A With?

 17 Q With Ms. Storm or as indicated in this letter

 18 Mr. Mark Arnzen?

 19 A Mrs. Storm tried to contact me several times.

 20 I was out of the country and I was also traveling a lot on

 21 business and we had telephone problems, I mean, in both

 22 offices; it was horrid. So there was a hiatus for quite

 23 awhile in terms of contact. I can't say exactly what and

 24 when.

 25 Q It appears just shortly before this letter

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 1 there was a telephone conference?

 2 A Yes.

 3 Q Probably that day or the day before or

 4 something of that nature?

 5 A Yes.

 6 Q Now, this appears to be some handwritten

 7 notes written on a report that was authored by John Kaminski

 8 on January 18, 2002. On the cover page of that there is

 9 some handwriting in blue ink and capital letters, generally

 10 speaking. Is that your handwriting, sir?

 11 A Yes.

 12 Q And can you tell us what -- can you read for

 13 us what this says?

 14 A Sure. Certainly. I had some questions about

 15 his approach and his method and technique, I guess. The

 16 table in his report, table one was unclear to me. In a

 17 general sense, I could see where he was trying to go, but it

 18 raised more questions than it answered. My understanding is

 19 that Mr. Kaminski was calculating the average concentration

 20 of sulfer dioxide gas in room B based on various

 21 assumptions. I take considerable exception to that because

 22 an average concentration isn't the issue at hand here. It

 23 should be the concentration most likely present in the

 24 breathing zone of Mr. Newman.

 25 My second comment is the TLV preface, the

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 1 introductory comments to the threshold limit values, which

 2 is rather lengthy in fine print. But every practicing

 3 industrial hygienist should understand that compliance with

 4 those threshold limit values must not be used as proof or

 5 disproof of an existing physical condition. It appears that

 6 Mr. Kaminski is attempting to demonstrate that or at least

 7 say because the exposures are less than the OSHA standard

 8 for sulfer dioxide, ergo -- admittedly I'm reading between

 9 the lines -- Mr. Newman should not be ill. I don't

 10 understand his calculations. They are bizarre. There's no

 11 method given on how he did it, so I'm really -- my hands are

 12 tied in that sense. Mr. Newman made no comment regarding --

 13 I'm sorry. Mr. Kaminiski made no comment regarding the

 14 diagnosis of chemical pneumonitis. There might be a debate

 15 on that, but I'm surprised he made no mention of that.

 16 Q Well, you're aware that just -- he's not a

 17 medical doctor either. But are you aware in the medical

 18 records that were sent to you there are opinions from

 19 pulmonary specialists who were unable to find any indication

 20 of pulmonary or respiratory problems?

 21 A Oh, absolutely. No question.

 22 Q You're aware of that?

 23 A Absolutely, sure. And sure there could be a

 24 dispute on the medical.

 25 Q But you're -- is there a reason why you

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 1 discount those kinds of statements?

 2 A Well, the default position in this business

 3 is you assume the conditions are valid.

 4 Q Professionally, you feel obliged to take

 5 everything that Mr. Newman says at face value?

 6 A No, I don't, not at all. I take that in

 7 consideration of the information that I've been provided, my

 8 understanding of the toxicology and inhalation hazards

 9 associated with the chemical and the lack of an industrial

 10 hygiene program, the physical characteristics of the

 11 building, his premorbid condition, everything, all of those

 12 factors enter into it.

 13 Q Well, you would agree with me that the

 14 absence of an industrial hygiene program has no bearing on

 15 the question of whether Mr. Newman for a fact inhaled sulfer

 16 dioxide on that day, correct?

 17 A No, incorrect. The lack of an industrial

 18 hygiene program is why we're here.

 19 Q Let me ask it to you this way. If I were at

 20 that location on March 17, 1999, and I later claimed to you

 21 that I had smelled sulfur dioxide and it made me cough and I

 22 told that to a doctor that I had smelled sulfer dioxide at

 23 work and I've had a bad cough since and as a result was

 24 diagnosed with chemical pneumonitis, is there any way you

 25 could discredit me or tell me that I did not inhale sulfer

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 1 dioxide?

 2 MS. STORM: Objection to the form of the question.

 3 Go ahead.

 4 A Without knowing what the physician or

 5 physicians did with Mr. Newman or anybody else for that

 6 matter, I can't. That's all part of it. I don't think it's

 7 just based on hearsay. There has to be some suggestion of

 8 an exposure coupled with medical findings.

 9 Q And I guess that's an alternate way of saying

 10 what I've asked you. What medical findings are you aware of

 11 that are not based upon Mr. Newman saying, "I inhaled sulfer

 12 dioxide?"

 13 A I don't know what factors led to the

 14 diagnosis of chemical pneumonitis.

 15 Q If you don't know, you don't know.

 16 A I don't know, exactly.

 17 Q Anything else you need to tell me about your

 18 notes there, there are some notes on some additional pages?

 19 A I find it interesting that Mr. Kaminiski just

 20 cites the OSHA standards and doesn't go to the standards of

 21 care as promulgated by the National Institute for

 22 Occupational Safety and Health and the American Conference

 23 of Governmental Industrial Hygienists, which really would be

 24 under the vanguard of knowledge about inhalation toxicity of

 25 sulfer dioxide, not OSHA.

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 1 Q Would you agree with me that the NIOSH is a

 2 recommended standard?

 3 A Yes.

 4 Q All right. And as such, it does not have the

 5 force and effect that the OSHA requirement does?

 6 A No, no. It's just the standard of care, that

 7 is all. It's the best evidence we have in my view going.

 8 It's the collective wisdom of toxicologists.

 9 Q When you expressed your comments on the

 10 standard of care, would you agree with me that you're

 11 expressing a legal opinion?

 12 A I don't know. My sense of a standard of care

 13 of industrial hygiene practices.

 14 Q Let me see if I have any additional questions

 15 based on this. Let me hand you a letter dated February 26,

 16 2002, from Judy Stephano, who is listed here as secretary to

 17 Ms. Storm. Do you recall receiving this letter?

 18 A Yes.

 19 Q Would you read the first sentence of the

 20 second paragraph, please?

 21 A "With regard to the picture that depicts

 22 Building A and Building B, Rick was working inside the right

 23 garage door. Exhibit PG-10 shows the soap holding tank

 24 which Rick was working on."

 25 Q Thank you. Just the first sentence.

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 1 A Sorry.

 2 Q Do you believe that the statement that you

 3 just read is consistent with what you talked about earlier

 4 when you related Mr. Newman's conversation about where he

 5 was located next to some wall?

 6 A Well, my understanding is he was working at

 7 or about point N, and the right door -- as you're standing

 8 outside looking inside the building -- obviously the left

 9 inside the building, this door, the right door. The

 10 photograph was taken from outside looking at the building

 11 and that is the right door and that is the one he told me

 12 was open three to four feet across from his workstation.

 13 Q And you confirmed this assumption on your

 14 part with Mr. Newman in your telephone conversation?

 15 A He said so, yes.

 16 Q You asked him specifically about working

 17 inside the right garage door?

 18 A Well, as we talked yesterday, my recall is

 19 that one door was fully closed, one was partially open. It

 20 was the right -- in fact, he had to retrieve a sketch from

 21 his records.

 22 Q All right. Would you agree with me, from the

 23 garage door to the back of the building is 50 feet?

 24 A The dimensions are on one of these.

 25 Fifty feet sounds reasonably close.

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 1 MR. THOMAS: All right. If I may be permitted to

 2 do so, I will turn the floor to my colleague while I review

 3 my notes if I can come back and ask questions.

 4 MS. STORM: It depends on the time.

 5 MR. THOMAS: Mindful that we're going to suspend

 6 if necessary to look at the deposition.

 7 MS. STORM: Suspend to question him about the

 8 deposition, but that's it.

 9 DIRECT EXAMINATION

 10 BY MR. SCOTT

 11 Q Mr. Wabeke, my name is Jack Scott. I

 12 represent Mesa, Inc. I'm going to jump around a little bit.

 13 I won't be as long, but my notes are a little bit

 14 disoriented after three or four hours, so you will bear with

 15 me I hope. Your organization, Chemical Risk Management, is

 16 that a dba of yours or is that a separate entity?

 17 A Dba.

 18 Q You have three forensic professionals with

 19 Chemical Risk including yourself; is that correct?

 20 A They are -- well, it was through that project

 21 with Karmanos Cancer Institute, the industrial hygienists.

 22 That project is winding down; it's really one person

 23 part-time now and they focus entirely on prostate cancer.

 24 Q Are you the only person with Chemical Risk

 25 that provides forensic services?

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 1 A Yes.

 2 Q Have you ever consulted previously either for

 3 or against Procter & Gamble?

 4 A No.

 5 Q Ever been involved in a litigation as an

 6 expert witness for or against Procter & Gamble?

 7 A No.

 8 Q You talked about the different titles that

 9 Mr. Thomas was reading off as far as Wayne State. You are

 10 in which department again?

 11 A The Department of Family Medicine in the

 12 School of Medicine.

 13 Q So there are physicians, I would take it, in

 14 your department?

 15 A Yes.

 16 Q Okay. Is yours a tenured position with the

 17 University?

 18 A No, I'm adjunct, which means part-time.

 19 Q Okay. Are there any other industrial

 20 hygienists in that department at Wayne State?

 21 A No, there are industrial hygienists for the

 22 University, but not in the department, not in our department

 23 I'm in.

 24 Q We talked earlier -- or you talked earlier

 25 about it seemed like chemical exposure issues with respect

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 1 to Mr. Newman. What is your understanding as to his basic

 2 or core, if there is one, diagnosis from a pulmonary aspect?

 3 A I don't know. There is a restrictive

 4 component and apparently an obstructive component to his

 5 pulmonary capacity. I don't know how much of which or where

 6 the crossover becomes.

 7 Q The primary diagnosis to your knowledge

 8 though is chemical pneumonitis; is that correct?

 9 A That is what prompted him to seek medical

 10 care initially.

 11 Q Does chemical pneumonitis -- if this is

 12 outside of your bailiwick and experience, let me know -- is

 13 that only a product of some type of an exposure -- of

 14 exposure to a toxic substance or can it be caused by other

 15 causes besides exposure?

 16 A No, strictly the definition is inflammation

 17 of the lungs due to chemical inhalation or arguably an

 18 aspiration, vomiting where chemicals are entering the

 19 respiratory tract.

 20 Q But it entails necessarily some type of

 21 exposure; is that correct?

 22 A Yes.

 23 Q There was some discussion -- and if you have

 24 your report in front of you, on top of page two if you

 25 would. If you recall, Mr. Thomas was asking you for what

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 1 I'll call the layman's terms for the words "precedent

 2 respiratory morbidity," which I think you equate to lung

 3 disease; is that correct?

 4 A Yes.

 5 Q There was discussion about no apparent risk

 6 factors for pulmonary irritant lung disease. And at one

 7 time I heard you answering in terms of those factors being

 8 related to the agent, the concentration, and the duration.

 9 At an earlier point I thought you said that those type of

 10 risk factors might be emphysema, fibrosis, asthma; do you

 11 remember?

 12 A Yes, and I can see where there is confusion.

 13 Q What do you consider risk factors for

 14 pulmonary irritant lung disease as you mentioned in your

 15 report?

 16 A Well, they can be combinations of two major

 17 categories and that is where I think there is some

 18 misunderstanding. Risk factors clearly can be the chemical

 19 agent or arguably biological agent or agents. Two, the

 20 concentration in the inhaled air. Three, the duration of

 21 the exposure. Four, the respiratory rate. Those are some

 22 of the major ones. Then there is another group that would

 23 be the unique biological setting that that person brings to

 24 the table.

 25 Q Emphysema, fibrosis, asthma?

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 1 A It might be an enzyme deficiency, it might be

 2 whatever. It might be superimposed upon a cold, influenza,

 3 whatever. So there are really two sets of risk factors.

 4 What I was referring to here, nothing in the record

 5 suggested that he had some biological risk factors that

 6 predisposed him to a chemical pneumonitis. I can see where

 7 there is confusion on that.

 8 Q In your opinion, are the biological risk

 9 factors limited to his medical profile or do they also

 10 include any genetic disposition that may or may not exist?

 11 A It could be both, absolutely. There has been

 12 research on sulfer dioxide just that very thing, but it's --

 13 it's a difficult thing to deal with, quite frankly. There's

 14 more questions than answers. There is enough in eyes of

 15 certain investigator that SO2 can be a -- SO2 injuries can

 16 be precipitated based on certain enzymatic and biochemical

 17 deviations from perhaps other people.

 18 Q What is your understanding of fibrosis?

 19 A That is a general term for scar tissue

 20 formation in living tissue.

 21 Q Do you have any understanding as an

 22 industrial hygienist as to causes from an occupational point

 23 of view of any of fibrosis?

 24 A There can be several. Mineral dust, such as

 25 silica, asbestos; metals such as beryllium; and irritants,

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 1 irritant gasses and vapors. So in some people there is some

 2 agents such as crystalline quartz in silica that are

 3 notorious for causing pulmonary fibrosis in exposed workers

 4 with a sufficient dose, generally years of high dust

 5 concentrations. There are other agents that induce

 6 pulmonary fibrosis that the mechanisms are not clearly

 7 understood, occur in some people not in others for whatever

 8 reasons. We don't know.

 9 Q In your practice and experience as an

 10 industrial hygienist, can exposure to fiberglass have an

 11 impact or be correlated to fibrosis?

 12 A I'll answer that. It wouldn't surprise me

 13 down the road if we find that. I haven't seen compelling

 14 evidence to this point to support that notion. It's like

 15 asbestos. We're learning as we go along; that's pretty

 16 clear.

 17 MS. STORM: Let's not open up that litigation.

 18 A But I think the jury is still out on man-made

 19 mineral fibers such as fiberglass.

 20 Q If I'm hearing you correct, you're suggesting

 21 that the jury is out, but that there is possibly some

 22 literature or thought in the scientific arena that there may

 23 be or is a correlation; is that a fair statement?

 24 A There is some thought in that regard, yes.

 25 Q Do you have any understanding as to

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 1 Mr. Newman's work history in terms of whether he was

 2 involved in the use fiberglass products?

 3 A No, as an insulator it wouldn't surprise me.

 4 Q Are you aware he was insulating at the time

 5 of this incident?

 6 A Yes, and using fiberglass, right.

 7 Q Do you have any understanding as to the type

 8 of adhesives that Mr. Newman used as part of his insulating

 9 responsibility?

 10 A Not at this particular site. I know the

 11 types of adhesives that are used to adhere fiberglass batts

 12 to various pieces of equipment.

 13 Q What is your understanding of those types of

 14 adhesives?

 15 A There's acrylic resins, epoxy resins, thermal

 16 stable resins with what we call a poly-added base,

 17 especially in hot processes that might cause delamination of

 18 material.

 19 Q Have you ever heard of a product called

 20 Armstrong 520?

 21 A I know of Armstrong adhesive, the 520 doesn't

 22 mean anything to me.

 23 Q Do you know if any of the products he used

 24 had a specific material safety data sheets assigned to those

 25 products.

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 1 A It wouldn't surprise me. I don't know that.

 2 Q I saw in your CV -- bear with me one second.

 3 A Sure.

 4 Q You were involved in a case in Escanaba,

 5 Michigan, involving epoxy in TDI occupational asthma. Do

 6 you remember that case at all?

 7 A Very well.

 8 Q What is TDI occupational asthma?

 9 A TDI is an abbreviation for Toluene

 10 Diisocyanate, it's one of the two ingredients that is used

 11 in polyurethane products, foams. The cushions -- the seat

 12 cushions we're sitting on most likely are polyurethane.

 13 Q That case apparently involved some type of

 14 epoxy; is that correct?

 15 A Epoxy paints, yes.

 16 Q They were paints? While I have your CV out,

 17 what is MDI hypersensitivity pneumonitis?

 18 A MDI is an abbreviation for another

 19 isocyanate -- don't throw anything at me reporter --

 20 methylene phenyl diisocyanate.

 21 Q Does your practice as an industrial hygienist

 22 include consulting with any fiberglass companies concerning

 23 either the risk of inhalation of fiberglass products or

 24 epoxy adhesives?

 25 A I personally and through those I supervise

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 1 have done a lot -- I say a lot, probably 20 industrial

 2 hygiene studies of workers' exposure to fiberglass, almost

 3 exclusively at Ford Motor Company. And in the process there

 4 would have been occasions to contact Owen's Corning, various

 5 material suppliers for their input on the hazards of their

 6 product, to get their advise to help us solve some problems.

 7 The big problem we had was fiberglass itch, it's a rather

 8 disabling dermatitis the first week of exposure.

 9 Q To anyone who's ever insulated their attic,

 10 correct?

 11 A You got it.

 12 Q Are there any pulmonary deficits or irritants

 13 or conditions that can result in your professional

 14 experience from the use of fiberglass products first?

 15 A Well, the fiberglass products -- and this go

 16 goes back several years, it's not a recent issue with me.

 17 We were looking at particles that were a little too large.

 18 They could do a number on the skin. But they really weren't

 19 of an aerodynamic diameter that couldn't penetrate deep into

 20 the lungs.

 21 Q These were studies that you were doing

 22 yourself?

 23 A Yes.

 24 Q Was that at Wayne State?

 25 A No, Ford Motor Company. Workers in car and

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 1 truck assembly plants installing insulation, perhaps

 2 underneath the floor mat or in the trunk or in the trunk

 3 engine compartment as sound deadeners.

 4 Q Do you have any understanding as to any

 5 pulmonary risks associated with the adhesives that are used

 6 in the fiberglass insulation business?

 7 A There are many, many types of adhesive. I

 8 really have to know the specific kinds.

 9 Q Armstrong 520?

 10 A I don't know what is in 520. The adhesives

 11 as a class are not volatile. Even if they are sprayed, they

 12 are not going to come out as a respirable mist, but the

 13 solvents that are present in some adhesives can be

 14 problematic.

 15 Q Did you discuss the use of the adhesives with

 16 Mr. Newman at any time?

 17 A No.

 18 Q Do you consider them significant in

 19 formulating your opinions to have any understanding as to

 20 the type of adhesives that he was using day-to-day in terms

 21 of his insulating requirements?

 22 A No.

 23 Q Why is that?

 24 A I don't think -- there was nothing really

 25 dramatic in his work environment that even suggested that he

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 1 had significant exposure to adhesives or solvent vapors

 2 coming from adhesives.

 3 Q Are you aware that he used any type of

 4 protective breathing gear?

 5 A No.

 6 Q Did you ask him that by chance?

 7 A I did not.

 8 Q In your report, page two, the final sentence

 9 of paragraph one reads "Other workers present at the site

 10 also inhaled SO2." First, can you tell me the source of

 11 that statement, sir?

 12 A There is a statement somewhere in my

 13 documents, somewhere in that stack -- I don't recall the

 14 gentleman's name, but he described it.

 15 Q Do you have any understanding as to whether

 16 there were any other workers present that you referred to

 17 that had any long-term or chronic sequela?

 18 A It's my understanding no one else has, other

 19 than Mr. Newman, to the extent that anybody knows.

 20 Q Do you have any understanding as to where

 21 those other workers were physically located in the

 22 structures, that's what we'll call it today.

 23 A No, I don't.

 24 Q I note that a lot of your opinions talk about

 25 what appear to me to be pulmonary conditions. Is that a

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 1 kind of a fair and obvious statement?

 2 A Yes.

 3 Q For instance, number two of your findings or

 4 opinions at page two reads, "His pulmonary injuries are

 5 consistent with a massive acute exposure of SO2 gas." I did

 6 not see any reference in the report to any of Mr. Newman's

 7 alleged cardiac conditions. Am I correct that that aspect

 8 of the case is not addressed in your report?

 9 A It is not, that's right.

 10 Q Before you received Dr. Hirsh's deposition

 11 transcript, did you have any understanding as to whether

 12 Mr. Newman had any cardiac symptoms that were allegedly as a

 13 result of this incident?

 14 A Nothing comes to mind.

 15 Q Whether as an industrial hygienist or

 16 whatever other discipline that you've engaged in, do you

 17 have any particular expertise in regard to cardiac sequela

 18 from inhalation of SO2, as opposed to pulmonary conditions

 19 that you have outlined in this report?

 20 A Well, I'm not aware personally of any

 21 firsthand evidence that exposure to SO2 causes cardiac

 22 problems. But having said that, the heart and lungs are

 23 really a cohesive network of machinery and, obviously,

 24 independently intertwined in their function. Myocardium is

 25 the most oxygen-demanding muscle we have and it gets it from

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 1 the lungs. They work very closely together. It wouldn't

 2 surprised me in an impaired pulmonary system --

 3 MR. THOMAS: I'm going to object to continued

 4 medical opinions. Go ahead.

 5 MR. SCOTT: Keep going.

 6 A There are medical conditions that effect the

 7 heart -- that effect the lungs that can effect the heart.

 8 You alluded to one earlier, fibrosis can produce right heart

 9 failure to the point of death and congestive failure. There

 10 are numerous conditions, but I'm not here to render an

 11 opinion regarding atrial or ventricular fibrillation as a

 12 sequela from SO2, that is not my area of expertise.

 13 Q And I recognize that you're not offering

 14 medical opinions, but I noted, for instance, opinion five

 15 where you talked about conditions that may develop and they

 16 all appear to me, to me anyway, of a pulmonary nature:

 17 Chemical broncho pneumonia, bronchiolitis obliterans,

 18 reactive airways disease. Those appear to be classic

 19 pulmonary conditions?

 20 A That's a fair statement.

 21 Q I gather, even though you're not offering

 22 medical opinions, you're aware of these conditions as being

 23 part of the literature or the understanding that things can

 24 emanate from SO2 exposure; is that a fair statement?

 25 A That's right. As an occupational

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 1 toxicologist I teach doctors, not the clinical aspects, but

 2 what chemical can cause what types of health problems in

 3 what types of workers under what conditions. That is part

 4 of my function as a faculty member at the University.

 5 Q And I'm intrigued by what is not listed in

 6 number five as much as what's in there; namely, the fact

 7 that I don't see any mention of arrhythmia, atrial

 8 fibrillation. The fact that you've mention pulmonary

 9 conditions, is that significant in terms of what is out

 10 there in the literature or in the general knowledge of what

 11 SO2 exposure can do?

 12 A Those are the generally recognized effects of

 13 excessive exposure to SO2. A physician trained not even in

 14 cardiology, just in primary care medicine should be able to

 15 make a leap from impaired pulmonary function can lead to

 16 impaired cardiac function.

 17 Q You would recognize and agree that despite

 18 the fact, or other than the fact you're not offering medical

 19 opinions, you agree with me that certainly there is a

 20 separate medical discipline for pulmonologists versus

 21 cardiologists, correct?

 22 A Well, there are cross-overs too like

 23 interventional cardiologists. But, yes, in general that is

 24 correct.

 25 Q Can you point me to any treatises or

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 1 literature that you are aware of that correlate SO2 exposure

 2 to subsequent cardiac sequela?

 3 A No, I haven't researched that.

 4 Q You've spent a considerable amount of time

 5 talking about the words massive acute exposure and

 6 Mr. Thomas was asking you specific questions about parts per

 7 million. And I remember at one time I think you said what

 8 do you want, one bullet or ten bullets. Do you remember

 9 when you said that?

 10 A Yes.

 11 Q It's fair to say that your figure of 100 to

 12 200 parts per million is not based upon any scientific

 13 quantitative study. It's your best estimate based upon what

 14 you have gleaned from the subsequent condition or conditions

 15 that Mr. Newman has presented with; is that a fair

 16 statement?

 17 A Well, it's based on a lot of experience, sir.

 18 I've been around the block a few times on sulfer dioxide in

 19 a variety of occupational environmental settings. I know

 20 the dynamics of the gas; that is all part of my

 21 understanding, that is what I bring to this table.

 22 Q And I don't doubt that. I don't want you to

 23 think for a minute that I'm denigrating your ability at all.

 24 But it seems important to me anyway that if NIOSH or OSHA or

 25 whomever lists threshold levels as five parts per million,

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 1 one part per million or a 1,000 or 3,000 being fatal, that

 2 there would be some recognized quantitative numbers out

 3 there that say at this level you're looking at this type of

 4 damage and so forth. That is how I'm seeing this. Is that

 5 not accurate?

 6 A It's accurate to a point. These numbers are

 7 obtained from a variety of sources. One, in the case of two

 8 that I cited here, people died and for whatever reason air

 9 samples were taken at the same time or there was a

 10 replication in a laboratory controlled setting. Two, animal

 11 evidence. Rats and mice for the most part, we exposed them

 12 and we can project somewhat. And then air samples taken at

 13 the time people are exposed. Are eyes watering? Are people

 14 coughing? Are they choking? Can you smell? Can you

 15 detect? At the same time air samples are being taken. All

 16 that is part of the corpus of knowledge that arise at these

 17 limits.

 18 Q And you mentioned Ford situations where you

 19 knew you were looking at a massive exposure and there was no

 20 point in calculating the parts per million released,

 21 correct?

 22 A Correct.

 23 Q But when you have a situation like this case

 24 where you admittedly relied heavily on what I'll call the

 25 correlating conditions in terms of his physical symptoms,

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 1 isn't that all the more important that we obtain some

 2 understanding as to what the level of the parts per million

 3 discharged that day?

 4 A If that can be done it would be helpful, yes.

 5 Q Mr. Thomas also asked you about opinion

 6 number seven at the top of page three and the use of the

 7 word "trap" and you clarified quickly that you're not

 8 stating that Mr. Newman was quote/unquote trapped. I

 9 recognize what you're saying there. Similarly, if you look

 10 at opinion number ten it reads, "I believe that Mr. Newman

 11 was exposed to an SO2 gas concentration exceeding 100 parts

 12 per million and most likely to about 100 to 300 parts per

 13 million for one to two minutes until he could extricate

 14 himself." First of all, the 300 should be 200, correct?

 15 A It could be 300. Frankly, I don't have a

 16 number. Nobody does. If anybody does, they are a fool,

 17 frankly. We'll take it from there.

 18 Q When you wrote for one to two minutes until

 19 he could extricate himself. The word "until" does not mean

 20 to suggest in your opinion that it took him one to two

 21 minutes to extricate him from being underneath the tank; is

 22 that accurate statement?

 23 A That's right.

 24 Q The phrase one to two minutes is your opinion

 25 as to the length of time that he was exposed to the S02 at

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 1 whatever level, correct?

 2 A Well, yes, the time that he said is it

 3 something that we should abandoned the building, should I

 4 get out of here, to get up off the floor gather himself and

 5 leave the building, yes. There was dispute whether it was a

 6 situation that would require evacuation, at least that is my

 7 understanding.

 8 Q Do you have an opinion as to how long it took

 9 Mr. Newman to first detect the presence of SO2? And,

 10 secondly, how long it took him to recognize the SO2?

 11 A I don't think Mr. Newman knew what SO2 was.

 12 I don't think he had a clue. I don't think he ever

 13 recognized SO2 -- this clearly is sulfer dioxide. He had no

 14 idea.

 15 Q Well, you mentioned that with your own

 16 personal surgery that you have a limited olfactory sense.

 17 Do you have any understanding that Mr. Newman's olfactory

 18 sense is impaired?

 19 A No.

 20 Q Does not SO2 for the majority of the populous

 21 have a pungent egg-like odor immediately or --

 22 A I wouldn't call it an egg-like. It's not so

 23 much of an odor as an irritation as the formation of

 24 sulfurous acids in the mucous membranes. There's an odor

 25 element to it, but not like hydrogen sulfide or rotten eggs.

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 1 Q Let me ask it a different way. Perhaps

 2 Mr. Newman didn't know this was SO2, I will accept your

 3 premise and go from there for a second. Do you have an

 4 opinion of how long before he recognized that there was some

 5 type of chemical substance in the air that is not typical

 6 for him to be experiencing at P&G?

 7 A I asked him that several times and it wasn't

 8 clear. There was no suddenly there's an awakening. He

 9 wasn't certain.

 10 Q So I take it from your answer that you didn't

 11 glean from talking to him his point of detection nor his

 12 point of recognition; is that a fair statement?

 13 A The stop watch wasn't started.

 14 Q Mr. Thomas asked you about the Anderson study

 15 from 1974 and I think you said you weren't familiar with

 16 that; is that correct?

 17 A What journal is it in? Perhaps I read it

 18 years ago. I read a lot of journals.

 19 Q It's referred to in Mr. Kaminiski's report.

 20 A If it's in a journal that crossed my desk at

 21 the time, I read it.

 22 Q The human response to controlled levels of

 23 sulfur dioxide, ARCH. Environmental help by Linquist and

 24 Jensen?

 25 A No, I have to know the journal; that tells me

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 1 more than anything.

 2 Q Well, Mr. Kaminski is apparently quoting in a

 3 footnote that, as Mr. Thomas asked earlier, detection odor

 4 threshold for sulfer dioxide is .33 parts per million. And

 5 I think your response for that was it depends on the

 6 individual; is that an accurate recitation of your answer?

 7 A It does. Mr. Kaminksi is citing one study.

 8 The book I pulled out of my briefcase is a review of all the

 9 studies. And most likely, since that is the lowest reported

 10 concentration of .33, I would be surprised if that .33 isn't

 11 the same reference point as in this book that I have, but it

 12 is the lowest one.

 13 Q Even if it's the lowest, it strikes me when I

 14 look at that .33 detection and the other citations to the

 15 same study indicating a distinct odor of sulfer dioxide is

 16 detected by humans at one part per million, the figures that

 17 you're talking about as far as the most likely extent or

 18 level of the release are a hundred to 300 times the minimal

 19 detection levels; is that accurate?

 20 A That's accurate, that is my call on it, yes.

 21 Mr. Kaminski just cites the lowest standards he ever came

 22 across. I would like to suggest that I shared with you the

 23 collective knowledge regarding this and it's quite a range,

 24 not the lowest end.

 25 Q It's been a long day, I apologize. What were

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 1 the numbers you were quoting as far as the -- what you

 2 consider to be a recognized range, first, for detection and,

 3 secondly, for the distinct odor being?

 4 MS. STORM: Do you want to just mark the table?

 5 A Do you want just the page?

 6 MS. STORM: Is the page all right?

 7 Q Absolutely.

 8 MS. STORM: Do you want to read it to him and then

 9 I'll make a copy?

 10 A Sure. The range for detection -- by the way,

 11 this group of industrial hygienists who researched the

 12 literature came across a lot of articles, some they said

 13 essentially were so scientifically poor they didn't cite

 14 them. They took best which they felt had scientific merit

 15 and cited those. For sulfer dioxide, for detection .33 to

 16 5.0 parts per million. For recognition, 3.8 to 5.0 parts

 17 per million. And for each of those detections -- the

 18 geometric mean was 2.7 parts per million. And the geometric

 19 mean for recognition was 4.4, which means on a geometric log

 20 scale 50 percent of the people detected it below 2.7 and

 21 50 percent above. And there can be tremendous extremes,

 22 especially since there is a log normal distribution. You

 23 can have some people who say why are all these people

 24 coughing and choking and saying it smells. I see these

 25 people in my business all the time.

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 1 Q Mr. Wabeke, I wanted to take highest number

 2 and I want to assume they're correct, let's go with five

 3 parts per million. The level that -- to your best belief

 4 that Mr. Newman was exposed, if we go a hundred parts per

 5 million, we're at 20 times that number. If we go to 300,

 6 we're 60 times that number. My question, not as an

 7 industrial hygienist, but as a lay person who struggled

 8 through chemistry in high school, isn't this an overpowering

 9 smell at the levels that you're quoting when Mr. Newman

 10 detects it, if in fact that is the numbers that were

 11 present?

 12 A Absolutely, that is why he was injured. He

 13 got out of the building.

 14 Q But it took him a minute to two minutes to

 15 get to that appreciation at those levels and get out of the

 16 building?

 17 A Based on everything, yes.

 18 Q Did you go through with him in detail what he

 19 did for that minute to two minutes; namely, at what point

 20 was he looking around trying to figure out what was going on

 21 and at what point was he actually trying to get out from the

 22 tank and get out?

 23 A I asked him to describe what he was doing, it

 24 was over -- telephonic at best. I didn't have a movie of it

 25 or a video of it, but that is what he said and I had no

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 1 reason to dispute it. He was consistent.

 2 Q Did you have any general understanding as to

 3 whether he spent more time of that one to two minutes

 4 getting out from underneath the tank or more time once out

 5 of the tank heading out of the building?

 6 A I don't know. The sense I had was there was

 7 a lot of debate on whether we should evacuate or not, but I

 8 don't have a clear understanding.

 9 Q Mr. Thomas may have asked this and I may have

 10 missed it earlier. Did you have a discussion at any time

 11 with Mr. Newman about any buzzers or alarms or anything

 12 going off unusual at or about the time of the SO2 incident?

 13 A Initially, it was my erroneous belief that

 14 there was a gas alarm system, when, in fact, the enunciator

 15 of the alarm or whatever it was was a paging system.

 16 Q First, how did you get misapprehension?

 17 Where did that come from?

 18 A I don't know. It's not unusual to have gas

 19 alarms in situations where there can be a release of a gas

 20 under pressure or a liquified under pressure or a gas under

 21 pressure to serve as an alert system to those who might be

 22 exposed. What do we do; we have to get out; this is our

 23 path, whatever.

 24 Q How did you come to acquire additional

 25 information?

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 1 A I learned that there were garbled messages

 2 over this PA system and it wasn't intelligible.

 3 Q Where did that information come in?

 4 A Mrs. Storm and Mr. Newman.

 5 Q Did Mr. Newman tell you he ever heard a sound

 6 like that before when he was on site at P&G?

 7 A At a previous site visit?

 8 Q For any reason at all.

 9 A I certainly don't remember.

 10 Q And you have no notes from either telephone

 11 conversations with Mr. Newman; is that correct?

 12 A That's correct.

 13 Q No tape recording?

 14 A No, I don't do business that way.

 15 Q You talked earlier about the issue of fans.

 16 First of all, would you agree that in determining the extent

 17 of exposure that the level or extent of natural ventilation

 18 and mechanical ventilation is important for you as an

 19 industrial hygienist to be aware of?

 20 A More important is mechanical, but sometimes I

 21 consider natural ventilation, depending.

 22 Q And I think you said initially that

 23 Mr. Newman told you that there was no fan in the area where

 24 he was working. Did I hear you correctly?

 25 A If I said that, I misspoke. I asked him was

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 1 the fan on the outside wall adjacent to his workstation

 2 operating and he said no.

 3 Q I thought what I heard you say is that in the

 4 first conversation there was no fan and yesterday he told

 5 you that that fan was not operating. So your testimony is

 6 he told you that there was a fan, but that it was not

 7 operating?

 8 A Yes.

 9 Q Okay. And is that something he volunteered

 10 or something you asked him?

 11 A I asked him about ventilation in the area,

 12 mechanical ventilation.

 13 Q Did he say anything else about any other

 14 exhaust fans in the area of where he was working that may or

 15 may not have been operational?

 16 A No.

 17 Q You're aware from any of the numerous

 18 diagrams that we've looked at, including Exhibit 73, that

 19 there are two fans depicted at least on the diagram on that

 20 wall?

 21 A Yes.

 22 Q Do you have any understanding as to whether

 23 either of the fans were operating at the time of the

 24 incident?

 25 A I don't know.

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 1 Q You do not know how the SO2 exposure

 2 occurred; is that correct?

 3 A I believe it entered his work area through

 4 one or all three mechanisms I explained before.

 5 Q I'm sorry, I meant to ask you or I was trying

 6 to ask you, you don't know how the SO2 was released?

 7 A No, I don't.

 8 Q Have you been asked to perform any

 9 investigation as to that aspect of this case?

 10 A No.

 11 Q Do you have any knowledge as to what if any

 12 involvement Mesa, Inc., had with the release of SO2 on the

 13 day of the incident?

 14 A No, I know there is dispute over what might

 15 have happened, but that's why we're here I guess.

 16 Q Did Mr. Newman tell you anything about that?

 17 A No.

 18 Q Have you ever spoken with any employees of

 19 Mesa, Inc., concerning this incident?

 20 A No.

 21 Q You talked earlier about -- and drew for

 22 Mr. Thomas -- the windward leeward side in terms of your

 23 explanation for the dissertation and the movement of the

 24 SO2, correct?

 25 A Yes.

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 1 Q I did not notice that in terms of any part of

 2 the written report. Am I correct that it was not addressed

 3 in your written report?

 4 A You're correct, it was not.

 5 Q When did you come up with or develop those

 6 opinions concerning air flow and dissipation of SO2 outside

 7 the building?

 8 A I believe I had an earlier document that

 9 showed wind flow and maybe someone somewhere on one of the

 10 documents I had had an educated guess on the direction of

 11 air flow or wind and it would have been at or about the time

 12 I reviewed that. It was fortified today when I saw other

 13 buildings in the terrain and surrounding structures, and, in

 14 fact, being there on a day when the wind direction was

 15 almost identical as to what was portrayed earlier in the

 16 diagram.

 17 Q What is a fault tree analysis?

 18 A It's one of several processes wherein

 19 somebody can sit down and ask what could go wrong with a

 20 system, how might the system fail in a predictive sense.

 21 Well, it can be done both ways. We can do it post injury,

 22 post event, whatever, or pre-event in terms of predicting

 23 what could go wrong, where might a system fail due to its

 24 components, due to its entirety, with an eye toward

 25 prevention. It involves a series of yes or no decisions and

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 1 other decisions that might require further information

 2 gathering.

 3 Q Mr. Wabeke, do you have any opinions

 4 concerning anything that Mr. Newman's employer did or did

 5 not do relative to his safety and protection on the day of

 6 the incident?

 7 A No, I don't think they had a clue regarding

 8 the hazards of this gas.

 9 Q But you have not interviewed anyone with Viox

 10 owner Mr. Newman; is that correct?

 11 A That's correct.

 12 MR. SCOTT: Those are all the questions I have.

 13 Thank you, sir.

 14 MR. THOMAS: I have a couple follow-up.

 15 RE-DIRECT EXAMINATION

 16 BY MR. THOMAS

 17 Q "It could be 300. I don't have a number.

 18 Anybody who does is a fool." You said that a few moments

 19 ago and it made me wonder why we spent three hours

 20 discussing the numbers 100 to 300?

 21 A Those are estimates. It's a range. If

 22 anybody wants 307 parts per million, I think it's absurd to

 23 even think it could be that precise, given the variables

 24 involved. Everybody has been looking for a specific number

 25 from me and the suggestion if you don't have a specific

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 1 number I'm blowing air out of the top of my hat, that's not

 2 the case. Anybody that comes up with a specific number to

 3 seven decimal points is frankly preposterous in my view.

 4 Q Well, I'm not asking for a specific number to

 5 seven decimal points, I'm content with a range. But my

 6 question was with you earlier, I thought we had said -- and

 7 part of the whole purpose of the deposition is to have a

 8 clear understanding of what a witness is going to say at

 9 trial and my understanding at the conclusion of my questions

 10 was you were going to state your opinion of 100 to 200 parts

 11 per million over a period of one to two minutes' range on

 12 both concentration and duration. Then you said it could

 13 have been 300. I want to know why one could be able to make

 14 a cavalier jump and add 50 percent to a range, and then say

 15 anybody who has a number is a fool. Are we at 100 to 200?

 16 A A number is a specific number, excuse me. A

 17 range is something else. You kept saying a number.

 18 Q All right. Let me put it this way and maybe

 19 I'm arguing over nothing. As we sit here is it your best

 20 opinion, the opinion to which you hold to the greatest

 21 degree of confidence, that the range of exposure that

 22 Mr. Newman experienced was 100 to 200 parts per million of

 23 sulfer dioxide gas for a period of one to two minutes?

 24 A Yes, but it must be understood that there is

 25 going to be a concentration build up. So really the range

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 1 starts at ambient concentrations, outdoor air concentrations

 2 absent any release from the Ivorydale plant and then it

 3 builds up to that.

 4 Q Maybe the fool with the precise number, he

 5 would have to specify an exact moment in time because it's

 6 going to change?

 7 A Yes, exactly.

 8 Q You said something dispute about evacuation.

 9 What does that mean?

 10 A I don't know what I said and in what context.

 11 Q He was asking you questions about alarms

 12 versus intercoms and you said you understood there was a

 13 dispute about evacuation?

 14 A My understanding is Mr. Newman had some

 15 questions, should we evacuate the building or not; do I

 16 leave or do I stay. And that was the dispute. That is what

 17 I meant as dispute. Maybe not a dispute, maybe a

 18 questioning on his part whether it was safe to stay.

 19 Q And you don't have any information that

 20 suggested he talked with anybody at P&G about that, correct?

 21 A That's right.

 22 Q The example you used in response to a

 23 question about a supervisor asked why are all these people

 24 choking or having these symptoms. You used that to describe

 25 some people have symptoms and others don't. Let me just

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 1 make sure I understand. Is it fair to say that some people

 2 might not smell the gas at the same parts per million

 3 concentration as their neighbor might?

 4 A Absolutely, that is what these data speak to,

 5 among other things.

 6 Q Okay. Yet the inability to smell it will not

 7 prevent those people from having symptoms based upon, as we

 8 discussed earlier, the indiscriminate manner in which sulfer

 9 dioxide will form sulfurous acid in the moist mucous

 10 membranes of the nose and mouth of whoever it happens to

 11 contact; is that fair?

 12 A Is that a question? I'm sorry, I didn't

 13 follow you.

 14 Q I just want to make sure that you and I agree

 15 or at least if you agree with me, we can explore it. People

 16 may have different powers of perceiving sulfer dioxide using

 17 their sense of smell?

 18 A That's a given; we know that.

 19 Q And there is a range, as indicated in the

 20 table you read from a few moments ago which when people can

 21 smell it and when people can smell and identify it, I guess,

 22 is what it's saying, agreed?

 23 A Agreed.

 24 Q Yet even if a person can't smell it, that

 25 sulfur dioxide is going to not discriminate on the basis of

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 1 olfactory power, but just simply if I have a mucous membrane

 2 where this reaction can begin, what is it stichometrical

 3 reaction can begin and the sulfurous acid begin to form,

 4 they're going to begin experiencing the symptoms of teary

 5 eyes or sneezing or that burning sensation; fair enough?

 6 A Well, as you're talking I can postulate all

 7 sorts of scenarios, but fair enough in a general sense.

 8 Yes.

 9 Q Because sulfur dioxide doesn't know and it

 10 doesn't care as long as it has the things it needs to make a

 11 reaction, it's going to make a reaction?

 12 A Concentration determines the depth of

 13 penetration and the tissue sites where the damage might

 14 occur.

 15 Q Assuming the concentration for two different

 16 people are the same, that is going to take care of itself?

 17 A Exactly.

 18 Q One of the letters that you were provided was

 19 a letter from Procter & Gamble regarding a quote that said

 20 there was only a small release?

 21 A Right.

 22 Q But while that letter was provided to you, I

 23 did not see it. This issue came up in another deposition.

 24 I still have not seen that letter?

 25 MS. STORM: I faxed it to Jeanette, I'm sure I

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 1 did.

 2 A It wasn't a letter. It was a response to an

 3 interrogatory.

 4 Q No, there is a letter as well.

 5 MS. STORM: There is a letter. Off the record.

 6 (Off-the-record discussion.)

 7 Q You mentioned with respect to pulmonary

 8 problems experienced by Mr. Newman that he had one component

 9 that was restrictive and one that was obstructive?

 10 A It seems to me I read that in some of the

 11 medical reports and I don't recall where.

 12 Q All right.

 13 A Off the top of my head I'm sorry, I can't.

 14 Q I'm trying to get an understanding of what

 15 the difference would be between those.

 16 A I really -- I think I would be getting far

 17 afield in the field of pulmonology. I'm not a

 18 pulmonologist.

 19 Q Would it be fair for me to say then that with

 20 respect to those pulmonary issues, you would refer me to the

 21 pulmonary specialist?

 22 A Yes.

 23 MR. THOMAS: All right. I have no further

 24 questions.

 25 MR. SCOTT: No further questions.

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 1 (Deposition concluded at 4:48 p.m.)

 2

 3 (Signature Waived.)

 Roger Wabeke

 4

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 1

 2 C E R T I F I C A T E

 3 STATE OF OHIO :

 SS

 4 COUNTY OF CLERMONT :

 5 I, Kathy Simpson, Notary Public for the State

 6 of Ohio, duly qualified and commissioned, do hereby

 7 certify before giving of his deposition, the within-

 8 named Roger Wabeke was by me, Kathy Simpson, first duly

 9 sworn to depose the truth, the whole truth, and nothing

 10 but the truth; that the foregoing is the deposition given

 11 at said time and place by the said Roger Wabeke; that

 12 said deposition was taken in all respects pursuant to

 13 agreement as to time and place; that said deposition was

 14 taken by me in stenotype and transcribed into typewriting

 15 by computer under my supervision; and that the signature of

 16 the deponent was expressly waived

 17 I further certify that I am not counsel attorney,

 18 relative or employee of any of the parties hereto, or in

 19 any way interested in the within action, and that I was

 20 at the time of taking said deposition a Notary Public for

 21 State of Ohio.

 22 IN WITNESS WHEREOF, I have hereunto set my hand

 23 and Notarial seal this 27th day of November, 2002.

 24 My commission expires _____________________________

 February 20, 2007 Kathy Simpson

 25 Notary Public - State of Ohio

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