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									D'Ulisse v. Asbestos - ROUGH DRAFT                                                        Herman Gibb
August 1, 2006                                                                          ROUGH DRAFT




   1                                 SUPREME COURT: ALL COUNTIES
                                     WITHIN THE STATE OF NEW YORK
   2
   3
            IN RE:       NEW YORK CITY                                 :
   4                     ASBESTOS LITIGATION                           :
                                                                       :   DEPOSITION UPON
   5        This Document Applies To:                                  :   ORAL EXAMINATION
                                                                       :           OF
   6                 ALFRED D'ULISSE                                   :     HERMAN GIBB
            ---------------------------------                          :
  7
  8
  9
 10                      T R A N S C R I P T of the deposition of
 11       HERMAN GIBB, called for Oral Examination in the above
 12       entitled action, said deposition being taken pursuant to
 13       Rules governing Civil Practice in the Courts of New York,
 14       by and before KERRY D. HALPERN, a Notary Public and
 15       Shorthand Reporter of the State of New York, at the
 16       offices of AARONSON, RAPPAPORT, FEINSTEIN & DEUTSCH,
 17       LLP, 757 Third Avenue, New York, New York 10017, on
 18       Tuesday, August 1, 2006, commencing at 9:50 a.m.
 19
 20
 21                        Priority-One Court Reporting Services
                                       899 Manor Road
 22                            Staten Island, New York 10314
                                       (718) 983-1234
 23
 24
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                                 Draft Copy
                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                        Herman Gibb
August 1, 2006                                                          ROUGH DRAFT


                                                                              Page 2

   1                       IT IS HEREBY STIPULATED AND AGREED
   2      by and between the attorneys for the respective parties
   3      hereto that filing, sealing and certification of the
   4      within Examination Before Trial be waived; that all
   5      objections, except as to form, are reserved to the time
   6      of trial.
   7                       IT IS FURTHER STIPULATED AND AGREED
   8      that the transcript may be signed before any Notary
   9      Public with the same force and effect as if signed before
 10       a Clerk or Judge of the Court.
 11                        IT IS FURTHER STIPULATED AND AGREED
 12       that the within examination may be utilized for all
 13       purposes as provided by the CPLR.
 14                        IT IS FURTHER STIPULATED AND AGREED
 15       that all rights provided to all parties by the CPLR shall
 16       not be deemed waived and the appropriate sections of the
 17       CPLR shall be controlling with respect thereto.
 18                        IT IS FURTHER STIPULATED AND AGREED by and
 19       between the attorneys for the respective parties hereto
 20       that a copy of this Examination shall be furnished,
 21       without charge, to the attorney representing the witness
 22       testifying herein.
 23
 24
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                                 Draft Copy
                                     Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                    Herman Gibb
August 1, 2006                                                      ROUGH DRAFT


                                                                          Page 3

   1       A P P E A R A N C E S:
   2            FOR THE PLAINTIFF:
   3            WEITZ & LUXENBERG, P.C.
                BY: JERRY KRISTAL, ESQ.
   4            BY: ADAM COOPER, ESQ.
                180 Maiden Lane
   5            17th Floor
                New York, New York 10038
   6
   7                FOR THE DEFENDANT PNEUMO ABEX:
   8                SMITH, ABBOT LLP
                    BY: JAMES WALKER SMITH, ESQ.
   9                3 New York Plaza
                    New York, New York 10004
 10
 11                 FOR THE DEFENDANT FORD MOTOR COMPANY:
                    FOR THE DEFENDANT GENERAL MOTORS:
 12
                    AARONSON, RAPPAPORT, FEINSTEIN & DEUTSCH, LLP
 13                 BY: PHILIP D. LERNER, ESQ.
                    757 Third Avenue
 14                 New York, New York 10017
 15
                    FOR THE DEFENDANT GOODYEAR:
 16
                    LYNCH DASKAL EMERY LLP
 17                 BY: JAMES R. LYNCH, ESQ.
                    264 West 40th Street
 18                 New York, New York 10018
 19
 20
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                                 Draft Copy
                                     Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                           Herman Gibb
August 1, 2006                                                             ROUGH DRAFT


                                                                                 Page 4

   1                                             I N D E X
   2
   3      WITNESS: HERMAN GIBB
   4      EXAMINATION                                                   PAGE
   5      Mr. Kristal                                                     9
   6
   7
          EXHIBITS:
   8                                        PLAINTIFF'S
          NUMBER                           DESCRIPTION                  PAGE
   9
          Gibb 1                     Notice of Deposition                 236
 10
          Gibb 2                     Expert Report of Herman J.
 11                                  Gibb, Ph.D., M.P.H., dated
                                     July 12, 2006                        143
 12
          Gibb 3                     Resume of Herman J. Gibb             169
 13
          Gibb 4                     Report on the Expert Panel
 14                                  On Health Effects of Asbestos
                                     and Synthetic Vitreous
 15                                  Fibers: The Influence of
                                     Fiber Length, dated March 17,
 16                                  2003                                184
 17       Gibb 5                     Report on the Expert Panel
                                     On Health Effects of Asbestos
 18                                  and Synthetic Vitreous
                                     Fibers: The Influence of
 19                                  Fiber Length, June 20, 2005         184
 20       Gibb 6                     Guidelines for Carcinogen
                                     Risk Assessment, dated
 21                                  March 2005                          202
 22       Gibb 7                     Article, Reduction of the
                                     Biological Potential of
 23                                  Chrysotile Asbestos Arising
                                     From Conditions of Service
 24                                  on Brake Pads, Arthur M.
                                     Langer                               230
 25
                                 Draft Copy
                                         Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                  Herman Gibb
August 1, 2006                                                                    ROUGH DRAFT


                                                                                        Page 5

   1      EXHIBITS:
                                            PLAINTIFF'S
   2      NUMBER                           DESCRIPTION                    PAGE
   3
          Gibb 8                     Article, Malignant
   4                                 Mesothelioma and Asbestos
                                     Exposure Among Auto
   5                                 Mechanics: Appraisal of
                                     Scientific Evidence, Otto
   6                                 Wong                                   230
   7      Gibb 9                     Article, Occupation and
                                     Risk of Malignant Pleural
   8                                 Mesothelioma: A Case-Control
                                     Study in Spain, Antonio
  9                                  Agudo, et al.                          242
 10       Gibb 10                    Article, Mesothelioma
                                     Surveillance to Locate
 11                                  Sources of Exposure to
                                     Asbestos, Teschke, et al.              242
 12
          Gibb 11                    Differences in Occupational
 13                                  Mortality From Pleural
                                     Cancer, Peritoneal Cancer,
 14                                  and Asbestos, David Coggon,
                                     et al.                                 242
 15
          Gibb 12                    Article, Mesothelioma Among
 16                                  Brake Mechanics: An Expanded
                                     Analysis of a Case-Control
 17                                  Study, Patrick A. Hessel,
                                     et al.
 18       242
 19       Gibb 13                    Article, Mesothelioma
                                     Mortality in Britain:
 20                                  Patterns by Birth Cohort
                                     And Occupation, J.T. Hodgson,
 21                                  et al                                 242
 22       Gibb 14                    Article, Malignant Mesothelioma
                                     in North America, Alison D.
 23                                  McDonald and J. Corbett
                                     McDonald                               242
 24
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                                 Draft Copy
                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                               Herman Gibb
August 1, 2006                                                                 ROUGH DRAFT


                                                                                     Page 6

   1     EXHIBITS:
                                       PLAINTIFF'S
   2     NUMBER                       DESCRIPTION                      PAGE
   3
         Gibb 15                Article, The Quantitative
   4                            Risks of Mesothelioma and
                                Lung Cancer in Relation to
   5                            Asbestos Exposure, John T.
                                Hodgson and Andrew Darnton               242
   6
         Gibb 16                Article, Pleural Mesothelioma
   7                            In a Brake Mechanic,
                                M. Huncharek, et al.                     242
   8
         Gibb 17                Article, Occupational and
   9                            Geographic Associations,
                                Mesothelioma in Connecticut,
 10                             1955-1977, Mary Jane Teta,
                                et al.                                   242
 11
         Gibb 17A               Dr. Langer's Letter to the
 12                             Editor                                  242
 13      Gibb 18                Article, Further Evidence
                                of Nonasbestos-Related
 14                             Mesothelioma, Premysl V.
                                Pelnar                                   242
 15
         Gibb 19                Article, Lung Cancer and
 16                             Exposure to Diesel Exhaust
                                Among Bus Garage Workers,
 17                             Per Gustavsson, et al.                  242
 18      Gibb 20                Article, Malignant
                                Mesothelioma: Attributable
 19                             Risk of Asbestos Exposure,
                                Robert Spirtas, et al.                   242
 20
         Gibb 21                Article, Asbestos Associated
 21                             Tumours in Car Mechanics,
                                B. Jarvholm, et al.                      242
 22
         Gibb 22                Article, "Scandinavian
 23                             Journal of Work,
                                Environment & Health"
 24                             Mortality of Auto

 25
                                 Draft Copy
                                Mechanics, Eva S. Hansen                 242



                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                           Herman Gibb
August 1, 2006                                                             ROUGH DRAFT


                                                                                 Page 7

   1                                        PLAINTIFF'S
          NUMBER                           DESCRIPTION                  PAGE
   2
   3
          Gibb 23                    Article, Mesothelioma
   4                                 Among Car Mechanics,
                                     H.J. Woitowitz and K.
   5                                 Rodelsperger,                       242
   6      Gibb 24                    Article, Case-Control
                                     Study of Diet and
   7                                 Mesothelioma in Louisiana,
                                     Mark H. Schiffman,
   8                                 et al.                              242
   9      Gibb 25                    Document, Occupational
                                     Mortality in Washington
 10                                  State, Samuel Milham and
                                     Eric Ossiander                       242
 11
          Gibb 26                    Document from SEER Cancer
 12                                  Institute Stats Review
                                     1975-2000                            242
 13
          GIBB 27                    Fast Stats Results SEER
 14                                  Age-Adjusted Rates & 95%
                                     Confidence Intervals for
 15                                  Mesothelioma, All Ages              242
 16       Gibb 28                    Document, Inhaled Particles
                                     VIII, Editors N. Cherry
 17                                  And T. Ogden, Supplement to
                                     "Annals of Occupational
 18                                  Hygiene"                            242
 19       Gibb 29                    Review Article,
                                     Non-Asbestos-Related
 20                                  Malignant Mesothelioma,
                                     Jack T. Peterson,
 21                                  et al                               242
 22
 23
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                                 Draft Copy
                                         Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                    Herman Gibb
August 1, 2006                                                      ROUGH DRAFT


                                                                          Page 8

   1       QUESTIONS        WITNESS INSTRUCTED NOT TO ANSWER:
   2             PAGE       LINE
   3       12-21            71-6
           32-20            72-13
   4       32-22            76-1
           59-22            76-5
   5       59-24            92-4
           60-20            121-18
   6       60-21            123-10
           66-15            126-19
   7       66-16            129-5
           66-18            166-1
  8        71-6             223-8
  9
 10
 11        INFORMATION TO BE SUPPLIED:
 12             PAGE LINE
 13             149-6
 14             161-20
 15
 16        MARK FOR RULING:
 17             PAGE LINE
 18             92-6
 19             166-1
 20
 21
 22
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                                 Draft Copy
                                     Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                           Herman Gibb
August 1, 2006                                                             ROUGH DRAFT


                                                                                  Page 9

   1                                      HERMAN GIBB,
   2                           having first been duly sworn, was
   3                           examined and testified as follows:
   4
   5                                        EXAMINATION
   6      BY MR. KRISTAL:
   7                    Q.           In your opinion, does a brake mechanic
   8      working on asbestos-containing brakes need to take any
   9      precautions regarding asbestos?
 10                     A.           I think from a particular health
 11       standpoint, no.
 12                     Q.           In your opinion, is it okay for a brake
 13       mechanic to use compressed air to blow off
 14       asbestos-containing brake drums with respect to any risk
 15       of an asbestos-related disease?
 16                     A.           I don't see a problem with using
 17       compressed air.
 18                     Q.           Any reason why a brake mechanic, with
 19       respect to any risk of asbestos disease, shouldn't grind
 20       asbestos-containing brakes without any engineering
 21       controls such as exhaust ventilation?
 22                     A.           No, not from a health risk.      From a --
 23       not from, say, a lung cancer and mesothelioma risk.
 24                     Q.           How about from an asbestosis risk?
 25                     A.
                                 Draft Copy
                                     I don't think there's any evidence of


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                          Page 10

   1      that either.
   2                   Q.               Okay.
   3                                    So, there would be no need for a
   4      mechanic, brake mechanic, who was working on an
   5      asbestos-containing brake to take any sort of precautions
   6      if he or she was grinding on that brake?
   7                   A.               I think you always want to take some
   8      kind of precautions with regard to inhalation of dust, be
   9      it any kind of dust.                It doesn't have to be something
 10       from brakes.               It could be just from inhaling dust.           I
 11       think, you know, one takes proper precautions.                        I don't
 12       want to breathe a lot of dust from a road or dust from,
 13       you know, any kind of situation because I think it just
 14       is prudent not to breathe, you know, to reduce your
 15       exposure to dust.
 16                    Q.               I am talking with respect to the risk of
 17       an asbestos disease, no precautions need to be taken when
 18       you are grinding on an asbestos-containing brake?
 19                                     MR. LERNER:          Didn't he answer
 20                    that question a moment ago?
 21                                     I think he did.
 22                    Q.               I think you answered it with respect to
 23       lung cancer and mesothelioma.                        And then I asked about
 24       asbestos.          I want to get one answer, if I could.
 25
                                 Draft Copy
                                        With respect to any asbestos disease, is


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                Herman Gibb
August 1, 2006                                                                  ROUGH DRAFT


                                                                                     Page 11

   1      there any need for a brake mechanic to take any sort of
   2      precautions to reduce the dust he or she is grinding on
   3      an asbestos-containing brake?
   4                                 MR. LERNER:           I don't know how
   5                    that's different from the last one.
   6                                 MR. KRISTAL:            If you can, just
   7                    make an objection to form.
   8                                 MR. LERNER:           You are cutting
   9                    me off before I finish what I am
 10                     saying --
 11                                  MR. KRISTAL:            Phil, all you
 12                     need to say is objection to form.                If
 13                     I want to know what the nature of the
 14                     form objections is, I will tell you.
 15                     Otherwise, you preserve your
 16                     objections until later on.
 17                                  MR. LERNER:           Objection to the
 18                     form and I do have to say something
 19                     else.
 20                                  MR. KRISTAL:            I don't think
 21                     you are allowed to say anything.
 22                                  MR. LERNER:           I am allowed to
 23                     say a lot of things.               For instance, if
 24                     you ask the question a second time,
 25
                                 Draft Copy
                        the same question, I am allowed to say


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                Herman Gibb
August 1, 2006                                                                  ROUGH DRAFT


                                                                                     Page 12

   1                     that because you are not allowed to do
   2                     that.
   3                                 MR. KRISTAL:             Just say asked
   4                     and answered.
   5                                 MR. LERNER:            Well, I am saying
   6                     that, Asked and answered.
   7                     Q.          Now, you may answer.
   8                                 MR. LERNER:            Wait.    If it is
   9                     asked and answered, I don't think it
 10                      works that way, that he answers it a
 11                      second time.
 12                                  I don't see how the question
 13                      that you just posed is different than
 14                      the question that you asked three ago
 15                      or two ago.
 16                      Q.          You may answer.
 17                                  MR. LERNER:            No.
 18                                  MR. KRISTAL:             Are you
 19                      instructing him not to answer?
 20                                  MR. LERNER:            That it's been
 21                      asked and answered already.                 Yes, I
 22                      am.
 23                                  MR. KRISTAL:             Then, let's get
 24                      Laraine on the phone.
 25
                                 Draft Copy
                                     MR. LERNER:            Go right ahead.


                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                          Herman Gibb
August 1, 2006                                                            ROUGH DRAFT


                                                                               Page 13

   1                                 MR. LYNCH:         Maybe you just
   2                   want to do a read back, so we can see
   3                   if it's asked and answered.
   4                                 (The witness left the room.)
   5                                 (Discussion held off the
   6                   record with Laraine PACHECO and
   7                   counsel.)
   8                                 (The witness entered the
   9                   room.)
 10                    Q.            With respect to risk of asbestos
 11       diseases, is there any need for a brake mechanic to take
 12       any sort of precautions to reduce the dust if he or she
 13       is grinding on an asbestos-containing brake?
 14                    A.            As I indicated earlier, I think it's
 15       always prudent to reduce dust exposure, but that is any
 16       kind of dust exposure, so that's just industrial hygiene.
 17                    Q.            So, with respect to reducing a risk of
 18       an asbestos disease, there is no need to do anything to
 19       reduce the dust when you are grinding on an
 20       asbestos-containing brake?
 21                                  MR. LERNER:          He didn't say
 22                    that at all.        You just twisted what he
 23                    said completely and that's not fair.
 24                    Q.            You can answer.
 25
                                 Draft Copy
                                     Let me see if I am understanding what


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                       Herman Gibb
August 1, 2006                                                                         ROUGH DRAFT


                                                                                              Page 14

   1      you are saying.
   2                                 You are saying it's always good to
   3      reduce dust whether it's house dust or dust from anything
   4      because you don't want to breathe dust generally.
   5                   A.            Right.
   6                   Q.            I am talking specifically about the risk
   7      of an asbestos disease from breathing certain dust?
   8                                 Do you understand what my question is
   9      asking about?
 10                    A.            Right.
 11                    Q.            With respect to that, breathing dust
 12       that contains asbestos with respect to increasing the
 13       risk of any asbestos-related disease, is there any need
 14       for a brake mechanic to take any precautions when they
 15       are grinding on an asbestos-containing brake?
 16                    A.            And I would answer that as I answered it
 17       before that I would reduce exposure to dust, if I could.
 18                    Q.            Because there is a risk of getting an
 19       asbestos disease?
 20                    A.            No.      I didn't say that.
 21                    Q.            Well, that's what I am asking.
 22                    A.            We don't have any evidence that brake
 23       mechanics have increased risk of asbestos disease, so I
 24       wouldn't -- you know, you are reducing dust because you
 25
                                 Draft Copy
          want to reduce exposure to dust.                           It's not because -- it


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                  Herman Gibb
August 1, 2006                                                                    ROUGH DRAFT


                                                                                       Page 15

   1      is not necessarily because of asbestos disease.                      It is
   2      because you want to reduce exposure to dust.
   3                   Q.            With respect to asbestos disease, is
   4      there any reason why a mechanic would have to wear any
   5      sort of mask or respirator while working around
   6      asbestos-containing brakes?
   7                                 MR. LERNER:          Objection to the
   8                   form, have to.
   9                   A.            I don't think you have to, but I think
 10       you have to -- I don't see a necessity for -- I don't see
 11       a necessity for wearing a mask or respirator.                      Again, you
 12       want to reduce dust exposure as much as you can, but to
 13       absolutely have to wear, you know, I think that is
 14       limited by the situation, you know, by the heat of the
 15       garage, etc., etc., and your ability to perform the
 16       function that you are doing.
 17                    Q.            With respect to the risk of an asbestos
 18       disease, are you saying that a mechanic, brake mechanic,
 19       can grind asbestos brakes all day long without any sort
 20       of industrial hygiene controls to reduce the dust without
 21       any sort of respiratory protection and that mechanic will
 22       not have any increased risk of any asbestos disease?
 23                    A.            There is no evidence that mechanics have
 24       increased risk of asbestos disease.
 25                    Q.
                                 Draft Copy
                                     Well, is saying that there is no


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                             Herman Gibb
August 1, 2006                                                               ROUGH DRAFT


                                                                                   Page 16

   1      evidence that mechanics had a risk of asbestos disease
   2      the same as saying there is no risk?
   3                   A.            I have to go with the evidence that I
   4      have, and the evidence is that there is no risk.
   5                   Q.            So, a mechanic, brake mechanic, who is
   6      working on asbestos-containing brakes, could use
   7      compressed air on every single asbestos-containing brake
   8      drum that came into his or her shop all day long and not
   9      increase the risk of an asbestos disease?
 10                    A.            There is no evidence that they have an
 11       increased risk of an asbestos disease.
 12                    Q.            Is there any reason with respect to risk
 13       of an asbestos disease that any precautions need to be
 14       taken when disposing of dust from asbestos-containing
 15       brakes?
 16                    A.            I can't.       There's no evidence of that.
 17                    Q.            Therefore, no precautions need to be
 18       taken with respect to risk of asbestos disease?
 19                    A.            Again, I mean I would take precautions
 20       with respect to dust because I just think it is prudent
 21       to.     But, I would take precautions with respect to
 22       breathing dust if I was in a dusty situation walking down
 23       a street.
 24                    Q.            Are there differences in the precautions
 25
                                 Draft Copy
          that are required by law when you are disposing of dust


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                           Herman Gibb
August 1, 2006                                                                             ROUGH DRAFT


                                                                                                  Page 17

   1      that contains asbestos and when you are just disposing of
   2      dust that doesn't contain asbestos?
   3                   A.            I am sorry.
   4                                 Would you repeat the question?
   5                   Q.            Sure.
   6                                 Are you aware of any special
   7      requirements that need to be taken with respect to the
   8      disposal of dust from asbestos-containing brakes?
   9                   A.            I am not aware of any.
 10                    Q.            Are you aware of any requirements with
 11       respect to asbestos-containing brake works of any kind?
 12                    A.            I am sorry.
 13                                  Please repeat it again?
 14                    Q.            Sure.
 15                                  Are you aware of whether or not brake
 16       mechanics -- strike that.
 17                                  Have you ever read the OSHA reg's for
 18       asbestos?
 19                    A.            No.      I have not.                 You know, I have read
 20       them, but I don't recall.
 21                    Q.            When was the last time that you read an
 22       OSHA regulation with respect to asbestos?
 23                    A.            I don't know.               Perhaps a year or two.
 24                    Q.            What is the date of the most recent
 25
                                 Draft Copy
          asbestos regulation with respect to -- strike that.


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                             Herman Gibb
August 1, 2006                                                               ROUGH DRAFT


                                                                                  Page 18

   1                                 What is the date of the most recent OSHA
   2      regulation with respect to asbestos?
   3                   A.            I don't know.
   4                   Q.            Do you know if the OSHA regulations with
   5      respect to asbestos have any mandatory requirements with
   6      respect to brake work?
   7                   A.            I don't know.
   8                   Q.            If they did, with respect to reducing
   9      the risk of asbestos disease, it would be your opinion
 10       that that is not necessary?
 11                                  MR. LERNER:          Objection to the
 12                    form.
 13                    A.            I would say that you, you know, again,
 14       take prudent industrial hygiene precautions in any
 15       situation, and if there is dust, you know, you would want
 16       to reduce exposure, but you don't necessarily do it
 17       because of asbestos disease.
 18                    Q.            And in your opinion you wouldn't need to
 19       take any precautions to reduce the risk of asbestos
 20       disease from any sort of brake work with
 21       asbestos-containing brakes?
 22                    A.            Again, there is no evidence that there
 23       is any risk, but I think it is prudent from an industrial
 24       hygiene perspective that you would want to reduce
 25       inhalation of dust.
                                 Draft Copy
                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                           Herman Gibb
August 1, 2006                                                             ROUGH DRAFT


                                                                                 Page 19

   1                   Q.            What is it that you are trying to
   2      prevent by reducing the inhalation of dust generally?
   3                   A.            Well, there's a number of respiratory
   4      diseases that dust could be associated with.
   5                   Q.            Such as what?
   6                   A.            Well, emphysema or COPD.
   7                   Q.            Anything else?
   8                   A.            It depends on what the exposure is.     I
   9      mean, if there was a silica you might have silicosis.
 10                    Q.            Anything else?
 11                    A.            It could be asthmatic response from dust
 12       exposure.
 13                    Q.            Anything else?
 14                    A.            Well, there's probably quite a few
 15       respiratory diseases.
 16                    Q.            Well, I am asking you, what are you
 17       aware of with respect to what you are trying to avoid
 18       from breathing dust generally?
 19                                  You mentioned COPD, emphysema, silicosis
 20       if the dust had silica, I am assuming, and asthma.
 21                    A.            Well, I mean, anybody may, you know, if
 22       you had -- if were already compromised with breathing,
 23       for example, tuberculosis or something to that effect.
 24                    Q.            Anything else?
 25                    A.
                                 Draft Copy
                                     It is not an exhaustive list, but there


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                          Herman Gibb
August 1, 2006                                                            ROUGH DRAFT


                                                                               Page 20

   1      are other diseases.
   2                   Q.            Such as?
   3                   A.            Well, I think --
   4                   Q.            If you are at the end of where you are,
   5      you can just say I can't think of anything now and we
   6      will move on.
   7                   A.            I can't think of any additional diseases
   8      at this point.
   9                   Q.            That's fine.
 10                                  So, are you saying, then, that a brake
 11       mechanic that is creating dust from asbestos-containing
 12       brakes ought to take precautions to reduce the risk of
 13       COPD, emphysema, asthma and tuberculosis?
 14                    A.            I think anybody in a dust environment,
 15       dusty environment, should take precautions to reduce
 16       exposure to particulate matter.
 17                    Q.            And I am asking you why.
 18                    A.            For the reasons I indicated, that there
 19       is some dust exposure and, therefore, they can cause.
 20       It's been associated with different respiratory diseases.
 21                    Q.            Which are the ones you named?
 22                    A.            I think that is the prudent thing.   Most
 23       people I think recognize that.
 24                    Q.            So, are you saying that with respect to
 25
                                 Draft Copy
          dust that is being created from asbestos-containing


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                       Herman Gibb
August 1, 2006                                                                         ROUGH DRAFT


                                                                                            Page 21

   1      brakes during any sort of work on asbestos-containing
   2      brakes, the precautions that need to be taken are no
   3      different than the precautions that you would take if you
   4      were in a dusty environment at home sweeping up?
   5                   A.             That's correct.              I think you need to
   6      take precaution -- obviously, in an industrial situation,
   7      you know, where you have got continued exposure
   8      throughout the day it might be different than sweeping
   9      the floor at home, so one would probably more likely be
 10       wearing a mask in an industrial situation as opposed to
 11       being at home.             I mean, it has to fit the situation.
 12                    Q.             Are you saying that whatever precautions
 13       a brake mechanic needs to take with respect to reducing
 14       dust would be the same whether or not the brakes contain
 15       asbestos or don't contain asbestos?
 16                    A.             That's correct.              You are going to take
 17       precautions against a dusty environment.                         That is just
 18       industrial hygiene.             That is prudent.              I think most
 19       people recognize that.
 20                    Q.             Are brake mechanics working with
 21       asbestos-containing brakes at an increased risk of COPD?
 22                    A.             I don't -- no.             Not that I am aware of.
 23       There is no evidence of it.
 24                    Q.             Are brake mechanics working with brakes
 25
                                 Draft Copy
          that don't contain asbestos at any increased risk of


                                         Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                       Herman Gibb
August 1, 2006                                                         ROUGH DRAFT


                                                                            Page 22

   1      COPD?
   2                    A.           That don't contain --
   3                    Q.           Right.
   4                    A.           I am not aware of that.
   5                    Q.           Are brake mechanics that are working
   6      with asbestos-containing brakes at any increased risk of
   7      emphysema?
   8                    A.           There is no evidence of that.
   9                    Q.           Are brake mechanics that are working
 10       with brakes that don't contain asbestos at any increased
 11       risk of emphysema?
 12                     A.           There is no evidence of that.
 13                     Q.           Are brake mechanics that are working
 14       with asbestos-containing brakes at any increased risk of
 15       asthma?
 16                     A.           There's no evidence of that.
 17                     Q.           Are brake mechanics that are working
 18       with brakes that don't contain asbestos at any increased
 19       risk of asthma?
 20                     A.           There is no evidence of it.
 21                     Q.           Are brake mechanics that are working
 22       with asbestos-containing brakes at any increased risk of
 23       tuberculosis?
 24                     A.           There's no evidence of that because
 25
                                 Draft Copy
          tuberculosis is, you know, an infectious disease, so


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                         Herman Gibb
August 1, 2006                                                           ROUGH DRAFT


                                                                              Page 23

   1      certainly there is no evidence of that.
   2                    Q.           Are brake mechanics working with
   3      asbestos-containing brakes at any increased risk of any
   4      disease from that work?
   5                    A.           None of which I am aware of.
   6                    Q.           So, it's your opinion that any use of
   7      control measures to reduce the dust from
   8      asbestos-containing brakes is simply because it's a good
   9      thing to do?
 10                     A.           I think -- again, I think it is a
 11       prudent industrial hygiene measure.
 12                     Q.           If the person is not at any increased
 13       risk of any disease, why is it a prudent industrial
 14       hygiene measure?
 15                     A.           Well, if you breathe in dust, don't you
 16       cough, don't you -- you know, you could have a reaction
 17       to it.        I think most people would agree that for, you
 18       know, an acute situation you want to reduce exposure to
 19       dust.       I mean, even for a short term you would want to
 20       reduce exposures because of acute response.
 21                     Q.           Meaning coughing, sneezing?
 22                     A.           Coughing, sneezing, correct.
 23                     Q.           No other reason why a brake mechanic
 24       would want to reduce dust from asbestos-containing
 25       brakes?
                                 Draft Copy
                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                              Herman Gibb
August 1, 2006                                                                ROUGH DRAFT


                                                                                    Page 24

   1                   A.            I think in general you want to -- I
   2      mean, in general, you would want to just reduce it
   3      because you know that dusty exposures, you know, could be
   4      associated with some of these other diseases.                  We don't
   5      have any evidence that brake mechanics per se, you know,
   6      have increased risk of emphysema, but.
   7                   Q.            But, what?
   8                   A.            I think, you know, in a general prudence
   9      would suggest that you, you know, want to reduce exposure
 10       to that.
 11                    Q.            You believe that the amount of total
 12       dust exposure from work on asbestos-containing brakes can
 13       be greatly affected by engineering controls?
 14                    A.            I am not an engineer, but I presume that
 15       you could reduce exposure by engineering controls.
 16                    Q.            Before we get off and running on a
 17       tangent here, tell me what your understanding of what
 18       engineering controls are with respect to reducing dust
 19       from asbestos-containing brakes, if you have any?
 20                    A.            Well, I presume it could be shields
 21       between you and the brake.                  There could be ventilation
 22       system.        I don't think that is often employed, but.
 23                    Q.            Any other engineering controls that you
 24       are aware of that could reduce the asbestos-containing
 25
                                 Draft Copy
          dust during work on asbestos-containing brakes other than


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                              Herman Gibb
August 1, 2006                                                                ROUGH DRAFT


                                                                                   Page 25

   1      shields and ventilation?
   2                   A.               Well, I am not an engineer, so I don't
   3      want to get too far into engineering controls that I
   4      don't know a lot about.
   5                   Q.               I am just asking you if you are aware of
   6      any others, other than the two that you mentioned,
   7      shields and ventilation?
   8                   A.               Other than personal protection, no.
   9                   Q.               Meaning a respirator?
 10                    A.              Well, a mask.
 11                    Q.              What do you mean by a mask?
 12                    A.              You know, just a, you know filter mask
 13       (indicating.               The type that you can buy in the store.
 14                    Q.              You mean, it looks like a surgeon's mask
 15       sort of?
 16                    A.              Correct.
 17                    Q.              As opposed to a respirator that has
 18       canisters?
 19                    A.              That's right.
 20                    Q.              Does the amount of dust that is created
 21       from asbestos-containing brakes depend on whether or not
 22       the brakes are from a car, a truck, or a bus or are they
 23       all the same?
 24                    A.              I am sorry.
 25
                                 Draft Copy
                                       Would you repeat the question?


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                           Page 26

   1                   Q.            Sure.
   2                                 MR. KRISTAL:           Could you read
   3                   it back?
   4                         (The last question was read back.)
   5                   A.            With respect to what, I mean, the amount
   6      of dust?          Is that the question?
   7                   Q.            Yes.
   8                   A.            My presumption is that they are greater
   9      from a truck because there's more of a brake.
 10                    Q.            Where is -- strike that.
 11                                  We have been talking about
 12       asbestos-containing brakes.                   Tell me your understanding
 13       of what an asbestos-containing brake is?
 14                    A.            A brake that has asbestos in it.
 15                    Q.            What does that mean?              What does it look
 16       like?       How does it work?
 17                    A.            Well, it would have -- there would be a
 18       resin with the asbestos that pushes up against the brake
 19       cylinder that stops the car.
 20                    Q.            Are there four or five of these things
 21       on a brake?           How many are there?
 22                    A.            Four or five.
 23                    Q.            What are you talking about, the thing
 24       with the resin, does that have a name?
 25                    A.
                                 Draft Copy
                                     There's the brake lining.


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                          Page 27

   1                   Q.            Okay.
   2                                 How many brake linings are there on each
   3      wheel?
   4                   A.            I think it depends whether it's a drum
   5      brake or a disc brake.
   6                   Q.            Okay.
   7                                 How many linings are there on a drum
   8      brake?
   9                   A.            I am not sure.             My understanding is the
 10       drum brake expands and stops the car and the disc brake
 11       would be, you know, a pad against the car.
 12                    Q.            Okay.
 13                                  So, how many asbestos-containing linings
 14       are there on a drum brake?
 15                    A.            I can't tell you.
 16                    Q.            How many asbestos-containing linings are
 17       there on a disc brake?
 18                    A.            I can't tell you.
 19                    Q.            Does it vary on the type of car?
 20                    A.            I can't tell you that either.
 21                    Q.            Do you know how a time-weighted average
 22       is calculated for a sample that's less than an eight-hour
 23       sample in terms of asbestos in an asbestos-containing
 24       brake --
 25                    A.
                                 Draft Copy
                                     Time wait average for what, four-hour,


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                              Herman Gibb
August 1, 2006                                                                ROUGH DRAFT


                                                                                   Page 28

   1      or eight-hour or what?
   2                   Q.            What is your understanding of a
   3      time-weighted average?
   4                   A.            Well, you take the exposure essentially
   5      over the period of time, and you are dividing that by
   6      eight hours if it is an eight-hour average.                  But, you
   7      know, it is weighted by the amount of time that one is
   8      exposed to a particular exposure to come up with the
   9      eight-hour.
 10                    Q.            If you were to get a -- do you know how
 11       -- strike that.
 12                                  Do you know what the measurement is of
 13       asbestos with respect to the OSHA Regulation?
 14                    A.            No, I don't.
 15                    Q.            Do you know, is it parts per million, is
 16       it micrograms per gram or do you have any idea of what
 17       the variables are, so to speak?
 18                    A.            I presume it's fibers per cc, but.
 19                    Q.            Why do you presume that?
 20                    A.            Because that's how asbestos is measured
 21       in fibers, and it's, you know per a volume and the volume
 22       is probably cc.
 23                    Q.            If you measured 32 fibers per cc over a
 24       15-minute sample and you wanted to calculate a
 25
                                 Draft Copy
          time-weighted average for eight hours, how would you do


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                             Herman Gibb
August 1, 2006                                                               ROUGH DRAFT


                                                                                   Page 29

   1      that, do you know?
   2                   A.            Well, you've only told me for 15
   3      minutes.
   4                   Q.            Right.
   5                   A.            So, what is the exposure for the other
   6      eight hours because you only have 15 minutes.                 Where is
   7      the rest?
   8                   Q.            So, if you were doing an eight-hour
   9      time-weighted exposure, you would need to know whether or
 10       not there were other exposures during the other seven
 11       hours and 45 minutes, right?
 12                    A.            Right.
 13                    Q.            If you calculated a time-weighted
 14       average using zero for the seven hours and 45 minutes of
 15       the rest of the day, you wouldn't be getting a real
 16       time-weighted average unless there was no other
 17       asbestos-containing brake dust being generated during the
 18       rest of the day.           Is that fair to say?
 19                    A.            What do you mean by a real time-weighted
 20       average?
 21                    Q.            Well, if someone were to say we measured
 22       15 minutes and we got 32 fibers per cc and that person's
 23       time-weighted average for that day was one fiber per cc,
 24       meaning they divided by 32, that would be only correct if
 25
                                 Draft Copy
          there was zero exposure the rest of the day.                 Is that


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                      Page 30

   1      fair to say?
   2                   A.            I mean, I am not working out the math,
   3      but.
   4                   Q.            Well 32 per for 15 minutes, if there
   5      were no other exposures would be eight for an hour?
   6                   A.            Okay.
   7                   Q.            I am not trying to put words in your
   8      mouth.       If we are beyond your expertise, let me know.
   9                   A.            So, for the rest of the day, you are
 10       assuming that it would be 1 fiber per cc for the entire
 11       day.      I will -- I think that is correct.                 I would want to
 12       check, but I am fairly certain that it is correct.
 13                    Q.            But, that would only be correct if there
 14       were zero exposures the rest of the day other than that
 15       15-minute period.
 16                                  Is that fair to say?
 17                    A.            That's correct.
 18                                  MR. LYNCH:         Let me just make
 19                    an observation, Jerry, that Dr. Gibb,
 20                    I believe is produced in connection
 21                    with the D'ulisse case, and he's
 22                    prepared a report.             And what you are
 23                    doing now is going far afield on
 24                    topics other than contained in his
 25
                                 Draft Copy
                       report, so I have a serious problem


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                            Herman Gibb
August 1, 2006                                                              ROUGH DRAFT


                                                                                 Page 31

   1                   with relevancy because he's being
   2                   produced, according to my
   3                   understanding, in connection with the
   4                   D'ulisse case only.
   5                   Q.            Were exposures to asbestos from brake
   6      work reduced historically by various engineering
   7      controls?
   8                   A.            My understanding is that they were.
   9                   Q.            You've done work in the epidemiological
 10       studies that you have done trying to determine average
 11       exposures, so to speak, as part of your epidemiological
 12       studies, have you not?
 13                    A.            Yes.
 14                    Q.            You have done some studies where there
 15       was upwards of 70,000 air samples in a particular work
 16       site, is that fair to say, chromium plants?
 17                    A.            Right.      That is correct.
 18                    Q.            Is it appropriate if you are trying to
 19       estimate the exposure of a brake mechanic who did not use
 20       any engineering controls to utilize measurements where
 21       engineering controls to reduce the dust were in place?
 22                    A.            Wait.     Repeat that again, please.
 23                    Q.            Sure.
 24                                  Is it appropriate if you are trying to
 25
                                 Draft Copy
          estimate the exposure of a brake mechanic who did not use


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                      Herman Gibb
August 1, 2006                                                                        ROUGH DRAFT


                                                                                           Page 32

   1      engineering controls --
   2                   A.            Right.
   3                   Q.            -- to utilize measurements historically
   4      while engineering controls to reduce the dust were in
   5      place?
   6                   A.            Your question is -- let me see if I can.
   7                   Q.            Sure.
   8                                 MR. LERNER:          No, no, no.           If
   9                   you don't understand the question,
 10                    just tell him.          You don't have to
 11                    figure out what is going on in his
 12                    mind.
 13                    Q.            Tell me what your understanding of my
 14       question?
 15                                  MR. LERNER:          No, no.          He
 16                    doesn't have to answer a question like
 17                    that.
 18                                  MR. KRISTAL:           Sure, he does.
 19                                  MR. LERNER:          No.          You can call
 20                    her again.      He is not answering that,
 21                    and I don't care what her ruling is.
 22                    He is not answering that question.                       He
 23                    is not obliged to know what is going
 24                    on in your mind.
 25
                                 Draft Copy
                                     MR. KRISTAL:           Relax.


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                               Herman Gibb
August 1, 2006                                                                 ROUGH DRAFT


                                                                                     Page 33

   1                                 MR. LERNER:          I'm relaxed.
   2                                 MR. KRISTAL:           It seems like
   3                   you are getting a little nervous.
   4                                 MR. LERNER:          Nervous, no.   Not
   5                   getting nervous.
   6                   Q.            If you have a brake mechanic who years
   7      ago did work on asbestos-containing brakes without any
   8      engineering controls -- are you with me so far?
   9                   A.            Right.
 10                    Q.            -- and you were now trying to estimate
 11       what that mechanic's exposure to asbestos was, would it
 12       be appropriate to utilize measurements that had been
 13       taken at other work sites where there were engineering
 14       controls in place specifically to reduce the
 15       asbestos-containing dust?
 16                    A.            Not to estimate the worker's exposure
 17       from every time period.
 18                    Q.            Do you believe that --
 19                    A.            It depends, though --
 20                    Q.            Sorry?
 21                    A.            It depends, though, on whether you
 22       have -- I mean, you have to in general, you know, that is
 23       what you would do.            But, you have to look at the evidence
 24       as to what exposures you are trying to relate to the
 25
                                 Draft Copy
          person who did the work at an earlier time period.                   So,


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                        Page 34

   1      you have to evaluate those assumptions, you know.
   2      Categorically, you know, of course, you would want to do
   3      that, but you have to examine what assumptions are being
   4      made, what evidence there is, what data you have, the
   5      data has to relate, so, again, in general, no.                      But, you
   6      have to, again, look at the assumptions, the data and so
   7      forth.
   8                    Q.           Let me give you some concrete examples.
   9                                 If a brake mechanic working on
 10       asbestos-containing brakes used compressed air to blow
 11       out the brake drum and you were trying to estimate that
 12       mechanic's exposure to asbestos, would it be appropriate
 13       to utilize measurements that were done when a special
 14       solvent, a wet solvent, was used to clean out the brake
 15       drums rather than compressed air?
 16                     A.           Again, if you are comparing solvent as
 17       opposed to blowing out air, categorically where somebody
 18       is blowing out air, blowing out asbestos with compressed
 19       air, you are looking at that person's risk, then,
 20       obviously, you don't want to look at solvent exposure.
 21       However, in most cases, it is not that cut and dried.
 22       You have to look at the multitude of exposures the
 23       individual could have had.                  The individual may have been
 24       blowing out and may have used solvent.                      It is difficult
 25
                                 Draft Copy
          sometimes in these types of studies to know exactly what


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                  Herman Gibb
August 1, 2006                                                                    ROUGH DRAFT


                                                                                       Page 35

   1      was done.          So it is, you know, although in general one
   2      would not want to do that.                  It depends on the kind of
   3      data you have got, the level of information that you have
   4      got, so I can't, you know.                  It doesn't -- you are asking
   5      kind of a general question and it may not apply to the
   6      specific situation that you may be talking about.                   I
   7      don't know your -- the specific situation.
   8                   Q.            Well, if a person is grinding on an
   9      asbestos brake using a grinding wheel that had no exhaust
 10       ventilation, would it be appropriate to estimate that
 11       person's exposure from measurements of grinding on an
 12       asbestos brake where there was exhaust ventilation
 13       designed to reduce the exposure?
 14                    A.            Of course, in general, the answer to
 15       that question would be, no.                   But, it is rarely that you
 16       have such cut and dried information in these types of
 17       situations.           Because many times the brake person has had
 18       a multitude of exposures where he has grinded without
 19       ventilation or where he has grinded with ventilation.
 20       Where he has ground with -- where has used solvents
 21       perhaps and where he has not used solvents, so it is not,
 22       usually, a one size fits all kind of thing.
 23                    Q.            Well, if this was a brake mechanic, I
 24       want you to assume that the brake mechanic used
 25
                                 Draft Copy
          compressed air to blow out brake jobs and used a grinding


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                      Page 36

   1      wheel without any exhaust ventilation or engineering
   2      controls to reduce exposure, and there were no use of
   3      solvents by that brake mechanic, there's no exhaust
   4      ventilation on the grinding machine every time the
   5      mechanic used the grinding machine, would be appropriate
   6      to compare exposures with measurements where solvents
   7      were used and where there was exhaust --
   8                                 MR. LERNER:          Appropriate for
   9                   what purposes?
 10                                  MR. KRISTAL:           Estimating the
 11                    person who didn't use those measures
 12                    exposure.
 13                    A.            I think I already answered this a couple
 14       of times.
 15                    Q.            But, you are saying it wouldn't be
 16       appropriate unless the person at times was using solvents
 17       and then you might want to factor that in.
 18                                  Did I understand that correctly?
 19                                  MR. LERNER:          No.          I don't
 20                    think you are paraphrasing what he
 21                    said accurately.
 22                                  But, what is the point.
 23                    Q.            Did I understand that correctly?
 24                                  MR. LERNER:          No.
 25
                                 Draft Copy
                                     There is no question, did I


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                Herman Gibb
August 1, 2006                                                                  ROUGH DRAFT


                                                                                     Page 37

   1                    understand that correctly.                    I don't
   2                    know what goes on in your mind.                    He
   3                    doesn't know what --
   4                    Q.           You said, in general, you wouldn't use
   5      exposure measurements where solvents were used in a
   6      situation where a person was using compressed air,
   7      general?
   8                                 MR. LERNER:           What he said is
   9                    on the record.         It is an inappropriate
 10                     question to ask it that way.                    He is
 11                     not answering it that way.                    You can
 12                     call her all you want.                 It is not
 13                     changing regardless of what she says.
 14                                  THE WITNESS:            Should I leave
 15                     the room?
 16                                  MR. LERNER:           No.
 17                                  MR. KRISTAL:            Well, when she
 18                     gets on the phone, she is going to ask
 19                     you to leave the room.
 20                                  (The witness left the room.)
 21                                  (Conference call with Laraine
 22                     Pacheco and counsel.)
 23                                  MR. KRISTAL:            Can we have -- I
 24                     ask that my last question to which
 25
                                 Draft Copy
                        there was an instruction of the


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                     Herman Gibb
August 1, 2006                                                                       ROUGH DRAFT


                                                                                          Page 38

   1                     witness not to answer be read to you.
   2                                   MS. PACHECO:             Okay.
   3                                   Let's start with that.
   4                                   MR. KRISTAL:             "Question:     You
   5                     said, in general, you wouldn't use
   6                     exposure measurements where solvents
   7                     were used in a situation where a
   8                     person was using compressed air,
   9                     general?"
 10                                    MS. PACHECO:             Who made the
 11                      instruction not to answer?
 12                                    MR. LERNER:            I did, Phil
 13                      Lerner.       I did, the defense attorney,
 14                      Phil Lerner,.
 15                                    MS. PACHECO:             Phil, what was
 16                      the basis?
 17                                    Was that either privileged or
 18                      scurrilous?
 19                                    MR. LERNER:            No.      What's been
 20                      happened here is -- well, let's start
 21                      with the basics.
 22                                    This witness is an
 23                      epidemiologist who has prepared a
 24                      report.       We have been here for over an
 25                      hour.
                                 Draft Copy
                                     There has not been one question


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                               Herman Gibb
August 1, 2006                                                                 ROUGH DRAFT


                                                                                    Page 39

   1                     question asked about epidemiology or
   2                     resembling epidemiology, so I don't
   3                     know what this deposition is about.               I
   4                     don't know if your rule is that a
   5                     lawyer can ask a witness, who is
   6                     presented as an expert in
   7                     epidemiology, questions about how
   8                     brakes work, and clearly issues of
   9                     industrial hygiene and the like ad
 10                      infinitum.     I have kind of tried to be
 11                      patient and not raise the issue yet,
 12                      but I am raising the issue now.               I
 13                      think the witness is here for a given
 14                      reason which is epidemiology, and I
 15                      would think after an hour we may want
 16                      to get to that.          I think the questions
 17                      that have been asked to this witness
 18                      have been unfair, have been outside
 19                      the scope of his report and his
 20                      expertise.     Having said that --
 21                                  MS. PACHECO:             Jerry?
 22                                  Let me hear from Jerry as to
 23                      why he is asking these questions.
 24                                  MR. KRISTAL:             The
 25
                                 Draft Copy
                         epidemiological studies that he relied


                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                Herman Gibb
August 1, 2006                                                                  ROUGH DRAFT


                                                                                     Page 40

   1                     on turn greatly on the exposure
   2                     assessments that were done by the
   3                     people who did the studies.                   I am
   4                     certainly entitled to ask him about
   5                     how you go about looking at exposures,
   6                     measuring exposures, whether you could
   7                     compare exposures when you have
   8                     certain industrial hygiene controls in
   9                     place with situations where you don't.
 10                      His opinion is based on those
 11                      epidemiological studies there is no
 12                      increased risk of any asbestos disease
 13                      and, therefore, in Mr. D'ulisse's
 14                      case, the asbestos from the brakes did
 15                      not increase his risk.                 I am allowed
 16                      to challenge --
 17                                  MS. PACHECO:             Let me see if I
 18                      understand this.
 19                                  Your questions are actually
 20                      directed to his opinions, but based on
 21                      the underlying studies on which he
 22                      relied.
 23                                  MR. LERNER:            There's not been
 24                      a word about the studies.                   If Mr.
 25
                                 Draft Copy
                         Kristal wants to --


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                      Page 41

   1                                  MS. PACHECO:             Excuse me, let
   2                     me finish.      I need to understand if
   3                     that is where you are going.
   4                                  MR. KRISTAL:             That is where I
   5                     am going.      That is exactly where I am
   6                     going.
   7                                  MS. PACHECO:             Now, if you are
   8                     going to say he hasn't mentioned the
   9                     studies -- but, he doesn't have to
 10                      mention the studies.
 11                                   MR. LERNER:            Look, D'ulisse
 12                      was never a brake mechanic.                  There's
 13                      no claim that he was a brake mechanic,
 14                      so, I would say, to a large part no
 15                      insofar as this case is concerned, the
 16                      questions are irrelevant.
 17                                   MS. PACHECO:             Speak a little
 18                      more into the phone because --
 19                                   MR. LERNER:            -- I am sorry.
 20                                   MS. PACHECO:             -- it isn't
 21                      clear.      I heard you say Mr.
 22                      D'ulisse --
 23                                   MR. LERNER:            Mr. D'ulisse was
 24                      note a brake mechanic.                  There is no
 25
                                 Draft Copy
                         allegation that he ever was a brake


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D'Ulisse v. Asbestos - ROUGH DRAFT                                         Herman Gibb
August 1, 2006                                                           ROUGH DRAFT


                                                                              Page 42

   1                     mechanic.     His exposure was a little
   2                     different.
   3                                 Aside from that, if
   4                     Mr. Kristal wants to attack the
   5                     reliability of studies, the
   6                     epidemiological studies, that is an
   7                     issue that he can address by an
   8                     individual study.            What he is doing
   9                     now is in a vacuum asking questions
 10                      without reference to any studies that
 11                      this witness relied upon at all, and
 12                      he is asking him very general
 13                      questions that have absolutely nothing
 14                      to do with the underlying facts of
 15                      D'ulisse in the first instance or
 16                      nothing that anyone, at least that I
 17                      could identify with any particular
 18                      study or any other attempt to attack
 19                      any particular study, and I think the
 20                      questions up until now uniformly have
 21                      been unfair and unreasonable and all
 22                      have been objectionable and I have
 23                      been trying to follow your ruling and
 24                      I have been trying to hold my peace.
 25
                                 Draft Copy
                         But, I think the time has come where I


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                      Page 43

   1                     am going to start objecting to each of
   2                     these questions and instruct the
   3                     witness not to answer in all respect
   4                     regardless of the ruling.                    But --
   5                                  MS. PACHECO:             -- will tell --
   6                                  MR. LERNER:            Let me just
   7                     finish, please.
   8                                  MS. PACHECO:             I will say --
   9                                  MR. LERNER:            Let me finish --
 10                                   MS. PACHECO:             -- this to you.
 11                      A skillful lawyer does not have to
 12                      identify a particular study, all
 13                      right.      That's just absolutely not
 14                      necessary.      If your epidemiologic -- I
 15                      don't even know what your
 16                      epidemiologic says, and it is not
 17                      really relevant to me in terms of
 18                      understanding what's going on.                   But,
 19                      if your epidemiologist relied on
 20                      certain studies, Jerry has every right
 21                      to ask the witness about some of the
 22                      underlying issues in these studies to
 23                      see if he even understood what he was
 24                      relying on and whether his reliance on
 25
                                 Draft Copy
                         them was proper.


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                  Herman Gibb
August 1, 2006                                                                    ROUGH DRAFT


                                                                                       Page 44

   1                                 MR. LERNER:            But, he is not --
   2                                 MS. PACHECO:             He is not
   3                     limited to the report.                 He can get
   4                     around that report.              This happens all
   5                     the time.     I mean, I don't see
   6                     anything improper here.
   7                                 MR. LERNER:            He's not --
   8                                 MS. PACHECO:             Now, you can't
   9                     ask the witness not to answer.                 If you
 10                      feel you need to call the judge, you
 11                      know, that's fine.             I don't think he
 12                      is doing anything improper or outside
 13                      the scope.
 14                                  MR. LERNER:            Firstly, he is
 15                      not doing what you are suggesting that
 16                      he is doing because we have haven't
 17                      even discussed any study or anything
 18                      that the witness has relied upon or
 19                      for that matter anything in this
 20                      witness's report or his opinions.                   We
 21                      haven't even come close to doing that
 22                      yet, and he's not doing what you are
 23                      purporting or what he is purporting he
 24                      is doing at all.
 25
                                 Draft Copy
                                     MS. PACHECO:             I can't speak


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August 1, 2006                                                                   ROUGH DRAFT


                                                                                      Page 45

   1                     for what he tells me he is doing one
   2                     thing --
   3                                 MR. LERNER:            Well, I am
   4                     sitting here now telling you he is not
   5                     doing that.      And aside from that, the
   6                     question that brought us to the phone
   7                     now is what Mr. Kristal does is ask a
   8                     question that is so convoluted that no
   9                     one can understand.              The witness tries
 10                      to give answer, and then Mr. Kristal's
 11                      follow-up question is, is what you are
 12                      saying, thinking that I am saying it,
 13                      and it is not the witness's obligation
 14                      to try to figure out what is going on
 15                      in Mr. Kristal's mind.
 16                                  MS. PACHECO:             What I would say
 17                      to you, and this is why the witness
 18                      should not be in the room --
 19                                   MR. LERNER:             He is not in the
 20                      room.
 21                                  MR. PACHECO:             For of all, if
 22                      the question is convoluted, that is an
 23                      objection to form that will probably
 24                      be sustained and no matter what he
 25
                                 Draft Copy
                         says it will be out.               But, the other


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                     Herman Gibb
August 1, 2006                                                                       ROUGH DRAFT


                                                                                          Page 46

   1                     thing is, tell your witness if the
   2                     question is convoluted he doesn't
   3                     answer.     Don't answer -- I don't
   4                     understand your question and make him
   5                     force Jerry to phrase the question in
   6                     a way that he understands.
   7                                 MR. LERNER:            But, what
   8                     Mr. Kristal is doing is, is he getting
   9                     an answer to a question and then he is
 10                      re-paraphrasing the answer, in my
 11                      opinion incorrectly, and saying is
 12                      that what you are saying.                     And that is
 13                      an inappropriate technique at a
 14                      deposition or anywhere else and I
 15                      don't have to sit --
 16                                  MS. PACHECO:             It is an --
 17                                  MR. LERNER:            -- and --
 18                                  MS. PACHECO:             -- objection --
 19                                  MR. LERNER: --                  here and let
 20                      him do it, and I am sorry --
 21                                  MS. PACHECO:             -- preserved --
 22                                  MR. LERNER:            -- not going to.
 23                      I am sorry.
 24                                  MS. PACHECO:             It is an
 25
                                 Draft Copy
                         objection to form and --


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                      Page 47

   1                                 MR. LERNER:            It is not --
   2                                 MS. PACHECO:             -- it is
   3                     preserved.     Otherwise I --
   4                                 MR. LERNER:            It is not --
   5                                 MR. PACHECO: -- otherwise I --
   6                                 MR. LERNER:            --       of
   7                     preserving --
   8                                 MS. PACHECO:             -- I have to --
   9                                  I don't really think I have
 10                      the right --
 11                                  MR. LERNER:            It is
 12                      inappropriate.
 13                                  MR. KRISTAL:             Phil, you are
 14                      asking for a record, and --
 15                                  MS. PACHECO: -- to do that
 16                      because that goes to admissibility and
 17                      I am not the one who decides.
 18                                  MR. LERNER:            All I am saying
 19                      to you is it is not a witness's
 20                      obligation to re-paraphrase an answer
 21                      or to re-paraphrase what he thinks is
 22                      going on in Mr. Kristal's mind and --
 23                                  MS. PACHECO:             He says, I don't
 24                      understand your question.                   You are
 25
                                 Draft Copy
                         going to have to rephrase it in way


                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                        Page 48

   1                     that I can understand it, and then I
   2                     will answer it.
   3                                 MR. LERNER:            I am --
   4                                 MS. PACHECO:             -- is what I
   5                     would teach the witness to do.
   6                                 MR. LERNER:            I don't think I
   7                     can teach the witness to do anything.
   8                     But, I am not going to sit here
   9                     regardless of any rulings and have Mr.
 10                      Kristal inappropriately paraphrase an
 11                      answer and base questions upon it.                   It
 12                      is just not going to happen.
 13                                  MS. PACHECO:             Well, then, you
 14                      are going to have to call the judge.
 15                      In my view, if Jerry is asking
 16                      unintelligible questions then you just
 17                      object to the form, and your witness
 18                      should be prepared for unintelligible
 19                      questions because that's what all
 20                      lawyers try to do in depositions.
 21                                  MR. LERNER:            No.
 22                                  MS. PACHECO:             Don't tell me
 23                      you've never done it either.
 24                                  MS. LERNER:            No.      I don't do
 25                      --
                                 Draft Copy
                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                      Page 49

   1                                 MS. PACHECO:             I've seen it
   2                     happen a million times.
   3                                 MR. LERNER:            I am not saying
   4                     he is asking unintelligible questions
   5                     as much as he is inappropriately
   6                     paraphrasing --
   7                                 MS. PACHECO:             But, that is
   8                     exactly how when I sit down with a
   9                     witness before a deposition you know
 10                      what the first thing I say is, don't
 11                      let him put words in your mouth.
 12                      Listen to the premise of the question.
 13                      It is kind of like the first thing I
 14                      say to a witness when I am prepping
 15                      for a deposition.
 16                                  MR. LERNER:            I am not that
 17                      clever.
 18                                  MS. PACHECO:             Take a break and
 19                      tell your witness not to accept the
 20                      premise that Jerry puts forward if the
 21                      premise is incorrect.                You know, you
 22                      also have opportunity, Phil, if you
 23                      want to, at the conclusion of Jerry's
 24                      testimony to straighten out absolutely
 25
                                 Draft Copy
                         everything you want if you chose to.


                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                        Page 50

   1                                    MR. LERNER:            I think it's a
   2                     better procedure not to have to
   3                     straighten out things if questions are
   4                     asked appropriately.                  And I still
   5                     don't think that we have a resolution
   6                     of the issue as to the fact that he is
   7                     not asking any questions relevant to
   8                     this's witness's expertise and report.
   9                                    MS. PACHECO:             He claims it is
 10                      relevant.
 11                                     MR. LERNER:            I am sitting --
 12                                     MS. PACHECO:             Relevancy, you
 13                      know, truthfully, is not really a
 14                      deposition objection.                   It is just not.
 15                                     MR. LERNER:            Well, if he came
 16                      in here and he started asking him
 17                      about major league baseball
 18                      statistics, would that be okay?
 19                                     MS. PACHECO:             No, obviously,
 20                      not.        But, I doubt that is what he
 21                      did.
 22                                     MR. LERNER:            And I am
 23                      suggesting that what he's done in the
 24                      first hour is not too far different
 25                      than --
                                 Draft Copy
                                         Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                        Page 51

   1                                 MS. PACHECO:             I don't think he
   2                     is talk about major league baseball.
   3                     He is talking about, you know, testing
   4                     and things that would be totally
   5                     relevant to an epidemiologist if he
   6                     was looking at studies.                     You know, I
   7                     don't think you can say this is out of
   8                     the ball park.
   9                                 MR. LERNER:            If Mr. Kristal
 10                      wants to attack the studies that this
 11                      witness is relying upon in his report,
 12                      that would be appropriate.                    To ask
 13                      questions in a vacuum that have
 14                      nothing to do with what this witness
 15                      has put in his report is
 16                      inappropriate.         I don't think it is
 17                      any more --
 18                                  MS. PACHECO:             Let's say he was
 19                      doing this.      Let's say he was asking
 20                      general questions about studies.                    He
 21                      got the witness to admit that that
 22                      kind of testing would be totally
 23                      inappropriate.         And then he says, by
 24                      the way, do you know study X upon
 25
                                 Draft Copy
                         which you relied, that is exactly what


                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                      Page 52

   1                     they did.     How is that an
   2                     inappropriate way to take a
   3                     deposition?
   4                                 MR. LERNER:            I don't he is
   5                     doing that and --
   6                                 MS. PACHECO:             Is that what you
   7                     are doing, Jerry?
   8                                 MR. KRISTAL:             Laraine, I have
   9                     been very quiet.           All I can say is the
 10                      record will speak for itself.                I
 11                      totally disagree with the
 12                      characterization that Phil has said
 13                      with respect to my questioning.                  In
 14                      fact, there have been precious few
 15                      objections by Phil, so what he is
 16                      saying is, everything I have been
 17                      asking is totally irrelevant is just
 18                      nonsense.     The record will speak for
 19                      itself.     What you said is precisely
 20                      what I am doing.           I am asking him
 21                      underlying concepts which directly
 22                      relate to the studies that he's
 23                      relying on.
 24                                  MS. PACHECO:             I had a feeling.
 25
                                 Draft Copy
                                     And, Phil, there is nothing


                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                        Page 53

   1                     inappropriate about that.                   That is the
   2                     way a clever, smart lawyer deposes a
   3                     witness, and I can't believe you don't
   4                     do the same thing.
   5                                 Why should he have to point to
   6                     a particular study?              I mean -- look my
   7                     ruling is my ruling.               I've ruled like
   8                     this for seven years.                There is
   9                     nothing unique about this situation
 10                      that I hear that is any different from
 11                      any other deposition from which I am
 12                      called, all right.             He is not off the
 13                      wall off the page.             You may not like
 14                      the questions.         Certainly, if you
 15                      think they are convoluted and
 16                      unintelligible or that your client's
 17                      testimony is being, you know,
 18                      distorted make your objection.                  And
 19                      that will be something, you know, if
 20                      it's an issue of ever getting into
 21                      evidence would certainly be something
 22                      for the judge to look at in the
 23                      transcript, but I don't think anything
 24                      that I should stop him from doing.
 25
                                 Draft Copy
                                     MR. LYNCH:           Laraine, this is


                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                Herman Gibb
August 1, 2006                                                                  ROUGH DRAFT


                                                                                     Page 54

   1                     Jim Lynch.     We disagree that relevancy
   2                     is not an objection that we can assert
   3                     at this deposition.              This witness is
   4                     an epidemiologist.             He is being
   5                     produced in the D'ulisse case only
   6                     with respect to his opinions given in
   7                     his report in this case.                    And Mr.
   8                     Kristal is going far beyond the
   9                     report, the disclosures, the witness's
 10                      expertise by asking the witness --
 11                                  MR. PACHECO:             But, he says he
 12                      is asking about the underlying --
 13                                  MR. LYNCH:           -- questions about
 14                      industrial hygiene, how brakes work.
 15                                  MS. PACHECO:             He says he is
 16                      asking about the underlying, although
 17                      not specifically referring them,
 18                      questions are going to or leading to
 19                      the underlying studies upon which this
 20                      witness relied.          Even if relevancy
 21                      were an objection, what is not
 22                      relevant about that.
 23                                  MR. LERNER:            We don't believe
 24                      he is doing that and if --
 25
                                 Draft Copy
                                     MS. PACHECO:             But, he does.


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                        Page 55

   1                     And that is what he is going to tell
   2                     the judge if he calls her.                    I mean, I
   3                     am not going to call him a liar if
   4                     that's what he believes he was doing.
   5                                 MR. LYNCH:           I am not
   6                     calling --
   7                                 MS. PACHECO:             Actually, it
   8                     sounded to me without even knowing
   9                     what the questions were that that's
 10                      what he was doing.
 11                                  MR. LYNCH:           Well --
 12                                  MS. PACHECO:             I mean, that is
 13                      what I would do.           That is what you
 14                      would do.
 15                                  MR. LYNCH:           Actually, this
 16                      isn't what I would do.                 I know you
 17                      keep saying that.            I wouldn't.
 18                                  MS. PACHECO:             You wouldn't?
 19                                  MR. LYNCH:           No.        And we are
 20                      still back at the same position where
 21                      it is my belief --
 22                                  MS. PACHECO:             I don't see
 23                      anything inappropriate in the
 24                      questioning.       The next step is to go
 25
                                 Draft Copy
                         to the judge if you are not satisfied


                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                      Page 56

   1                     with my ruling.          But, I see nothing
   2                     inappropriate.         It is absolutely the
   3                     norm.
   4                                 MR. LERNER:            You tell me the
   5                     most appropriate --
   6                                 MS. PACHECO:             No one, when
   7                     they depose an expert, is required to
   8                     say here is the expert report.                 I want
   9                     to ask you questions about it.                 It
 10                      just doesn't work like that.
 11                                  MR. LERNER:            I am not
 12                      suggesting --
 13                                  MS. PACHECO:             He can go around
 14                      the edges of it.           He can go to the
 15                      witness's knowledge, expertise,
 16                      understanding of the study.                 He does
 17                      not have to put the report in front of
 18                      him and go through it sentence by
 19                      sentence which, it sounds to me, like
 20                      you are suggesting would be the only
 21                      appropriate way to depose him.                 And
 22                      that would be the work of an unskilled
 23                      lawyer in my view.
 24                                  MR. LERNER:            Well, let me ask
 25
                                 Draft Copy
                         you this.     What is the next step in


                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                       Herman Gibb
August 1, 2006                                                                         ROUGH DRAFT


                                                                                            Page 57

   1                     getting a referee or something because
   2                     I don't agree with what you've said,
   3                     and I don't really want to fight on
   4                     each and every question and I don't
   5                     think it's appropriate to continue the
   6                     way we have been continuing.
   7                                  MS. PACHECO:             Well, maybe --
   8                                  MR. LERNER:            So --
   9                                  MS. PACHECO:             --      call the
 10                      judge.      I mean, she is the next step.
 11                                   MR. KRISTAL:             We will just
 12                      take it question by question.                       Here is
 13                      my suggestion.
 14                                   MS. PACHECO:             Every objection
 15                      is preserved.         I mean, there is no
 16                      question about that.
 17                                   MR. KRISTAL:             Right.
 18                                   My suggestion is I ask a
 19                      question.      Phil says I don't care what
 20                      the Special Master said.                     I am
 21                      instructing him not to answer.                       And I
 22                      ask the next question.                  At some point,
 23                      one or the other of us goes back to a
 24                      judge and I either ask for more time
 25
                                 Draft Copy
                         to depose him or I don't.


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                         Herman Gibb
August 1, 2006                                                                           ROUGH DRAFT


                                                                                              Page 58

   1                                    MS. PACHECO:             That's it.        You
   2                     know, what may end up happening here
   3                     is your witness may end up coming
   4                     back.        I mean, I am saying on the
   5                     record any instruction not to answer
   6                     is inappropriate other than privilege
   7                     or scurrilous.            I mean, your
   8                     objections are preserved and that is
   9                     generally the way we proceed.                      But,
 10                      beyond me, there's the judge.                      She is
 11                      the final word.
 12                                     MR. KRISTAL:             Okay.
 13                                     MR. PACHECO:             You can call
 14                      her.        I imagine she's available.                She
 15                      will take the call.
 16                                     MR. KRISTAL:             Thank you --
 17                      enjoy the --
 18                                     MS. PACHECO:             You are always
 19                      free to call back.                I love talking to
 20                      all of you.
 21                                     You know, Phil, you haven't
 22                      been at that many depositions that I
 23                      have been called at.                  One thing about
 24                      it, I am just consistent.                      There is
 25
                                 Draft Copy
                         nothing new about what I am saying.                        I


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                     Herman Gibb
August 1, 2006                                                                       ROUGH DRAFT


                                                                                          Page 59

   1                     have been saying it for years.                      It is
   2                     really not going to be a mystery.                      If
   3                     you call me back again about the same
   4                     thing, I am going to say the same
   5                     thing.      And this has always been the
   6                     approach and, you know, that is all I
   7                     can tell you.
   8                                  MR. KRISTAL:             Thank you.
   9                                  MR. LERNER:            Thank you.
 10                                  MS. PACHECO:              Have a nice day
 11                      everybody.
 12                                  MR. LYNCH:            Do you want to
 13                      take a five-minute break?
 14                                  MR. KRISTAL:              I dont.
 15                                  If you need to take a break,
 16                      take a break.
 17                                  (A recess was taken.)
 18                      Q.          Could you tell me what you, and Mr.
 19        Lynch and Mr. Lerner discussed during the break?
 20                                  MR. LERNER:             No.      Next
 21                      question.
 22                                  MR. KRISTAL:              Are you
 23                      instructing him not to answer.
 24                                  MR. LERNER:             Yes, I am.
 25                      Q.
                                 Draft Copy
                                     Is it appropriate to use asbestos


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D'Ulisse v. Asbestos - ROUGH DRAFT                                             Herman Gibb
August 1, 2006                                                               ROUGH DRAFT


                                                                                  Page 60

   1      exposure measurements where solvents are used to clean
   2      out the brake drums to estimate exposure of a brake
   3      mechanic who only used compressed air to clean out brake
   4      drums.
   5                   A.            I think I already answered that question
   6      before the break.
   7                   Q.            Can you give me an answer to the
   8      question?
   9                   A.            It is --
 10                                  MR. LERNER:          Well, if it's
 11                    already been asked and answered, then
 12                    it is on the record.               You can have it
 13                    read back if you would like.
 14                                  MR. KRISTAL:           Are you
 15                    instructing him not to answer the
 16                    question?
 17                                  MR. LERNER:          A second time,
 18                    yes.
 19                                  MR. KRISTAL:           You are
 20                    instructing him not to answer?
 21                                  MR. LERNER:          Yes, yes.
 22                    Q.            Do you know what a HEPA vacuum is,
 23       H-E-P-A?
 24                    A.            Yes.    I know what a HEPA vacuum is.
 25                    Q.
                                 Draft Copy
                                     Is it appropriate to use asbestos


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                         Page 61

   1      exposure measurements where a HEPA vacuum was used to
   2      dean out brake drums to estimate the exposure of a brake
   3      mechanic who only used compressed air to clean out brake
   4      drums?
   5                                 MR. LERNER:             When you use the
   6                   word appropriate, Mr. Kristal, could
   7                   you clarify what you mean, please?
   8                                 MR. KRISTAL:              No.
   9                   Q.            You can answer the question.
 10                                  MR. LERNER:             Do you understand
 11                    that question?
 12                                  THE WITNESS:              No.        I don't
 13                    understand the question.
 14                    Q.            What don't you understand about the
 15       question?
 16                    A.            It is a long question for one thing.
 17                                  MR. LERNER:             It is the length
 18                    of the question that is the problem.
 19                                  THE WITNESS:              It is the length
 20                    of the question.
 21                    Q.            Have you ever read anywhere where brake
 22       mechanics used HEPA vacuums to vacuum out the brake drums
 23       to reduce exposure to asbestos?
 24                    A.            No.
 25                    Q.
                                 Draft Copy
                                     Have you ever heard of that?


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   1                    A.           No.
   2                    Q.           Are you aware of whether or not the use
   3      of HEPA vacuums reduces the exposure to asbestos during
   4      brake work?
   5                    A.           No.    You have asked -- let me -- you
   6      asked if I had ever heard?
   7                    Q.           Yes.
   8                    A.           No.
   9                    Q.           Have you been shown by any of the --
 10       strike that.
 11                                  Have you been shown any other documents
 12       that are Ford documents?
 13                     A.           What kind of documents are you talking
 14       about?
 15                     Q.           Any kind of document that came from
 16       Ford.
 17                     A.           Came from Ford Motor Company?
 18                     Q.           Yes.
 19                     A.           No.
 20                     Q.           Have you been shown any documents that
 21       came from General Motors Company?
 22                     A.           No.
 23                     Q.           Have you been shown any documents that
 24       came from Daimler Chrysler?
 25                     A.
                                 Draft Copy
                                     No.


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   1                   Q.            Are incomplete or erroneous exposure
   2      assessments shortcomings of epidemiologic -- pervasive
   3      shortcomings of epidemiologic research?
   4                   A.            Could you repeat that again?
   5                   Q.            Are incomplete or erroneous exposure
   6      assessments pervasive shortcomings of epidemiologic
   7      research?
   8                   A.            No.      I mean, you know, you always do the
   9      best with the information that you have.
 10                    Q.            Do you know what individual
 11       susceptibility is?
 12                    A.            Yes.
 13                    Q.            What is individual susceptibility?
 14                    A.            When an individual is more susceptible
 15       to a disease than perhaps the general population or a
 16       particular group is.
 17                    Q.            And that may be based on the person's
 18       genetics?
 19                    A.            Person's genetics.
 20                    Q.            Do you agree that the results of
 21       epidemiologic studies reflect average responses of the
 22       population, but may poorly reflect risk to susceptible
 23       subgroups?
 24                    A.            No.      They can reflect an individual's
 25       susceptibility as well.
                                 Draft Copy
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D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


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   1                    Q.           Do you agree or disagree with what I
   2      said?
   3                    A.           Repeat it again.
   4                    Q.           Sure.
   5                                 The results of epidemiologic studies
   6      reflect average responses of the population, but may
   7      poorly reflect risk to susceptible subgroups, do you
   8      agree or disagree with that.
   9                    A.           I disagree with that.            I think that you
 10       can, you know -- I mean that is how we learn about
 11       susceptible subgroups from epidemiologic studies, so,
 12       obviously, epidemiologic studies could reflect
 13       susceptibility.
 14                     Q.           Is it generally accepted that cancer is
 15       a genetic disease involving somatic mutations or other
 16       changes to DNA?
 17                                  MR. LERNER:          I object to the
 18                     form of the question.
 19                                  Involved in only mesotheliomas
 20                     or are you talking about cancer in
 21                     general?
 22                     Q.           You can answer.
 23                     A.           Can you repeat the question?
 24                     Q.           Sure.
 25                     A.
                                 Draft Copy
                                     Is it generally accepted that cancer is


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   1      a genetic disease involving somatic mutations or other
   2      changes to DNA?
   3                                  MR. LERNER:          Objection.
   4                                  You can answer the question.
   5                   A.             I wouldn't say that it's necessarily
   6      generally accepted that there's somatic changes involved.
   7                   Q.             Is it generally accepted that cancer is
   8      a genetic disease that can be induced by environmental
   9      exposures to carcinogens?
 10                                  MR. LERNER:           Objection.
 11                                  If you understand it, you can
 12                    answer it.
 13                    A.            I think that you need to break the
 14       question down.             I think you need to -- I think it is a
 15       disease that can be induced by exposure to carcinogens.
 16                    Q.            Does that involve somatic mutations or
 17       other changes to DNA?
 18                    A.            I don't know that we know exactly what
 19       causes cancer.
 20                    Q.            Have you heard of the term hazard
 21       identification in your work?
 22                    A.            Yes.
 23                    Q.            Is hazard identification
 24       indistinguishable from assessing causality?
 25                    A.
                                 Draft Copy
                                     Hazard, is it indistinguishable, is that


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   1      your question?
   2                    Q.           Yes.
   3                    A.           I would say it is -- I would say it is
   4      distinguishable.
   5                    Q.           Does hazard identification correspond
   6      closely to the determination of the causality of an
   7      association between an agent and a hazard?
   8                                 MR. LERNER:           You have to
   9                    define what you mean by correspond
 10                     closely.
 11                                  MR. LYNCH:          Objection to the
 12                     form.
 13                                  MR. LERNER:           Objection to the
 14                     form.
 15                                  Don't answer in that form.
 16                                  MR. KRISTAL:            You are
 17                     instructing him not to answer.
 18                                  MR. LERNER:           Yes, I am.
 19                     Q.           Do you agree that in making hazard
 20       identifications sometimes preference is given to
 21       toxicological data collection over epidemiological data
 22       collection.
 23                     A.           No.    I think generally the guidance is
 24       that you always give preference to human data.
 25                     Q.
                                 Draft Copy
                                     Do you believe that hazard


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   1      identification can be made when epidemiological data do
   2      not indicate a hazard, but other lines of evidence do
   3      such as animal toxicologic studies?
   4                                 MR. LYNCH:         Objection to the
   5                   form.
   6                   A.            Could you break the question down?                 It
   7      is a long question.
   8                   Q.            Okay.
   9                                 When epidemiological data do not
 10       indicate a hazard, but there are other lines of evidence
 11       that do such as animal toxicologic studies, can hazard
 12       identification be made?
 13                    A.            Hazard identification is made with the
 14       data that is available and to use, obviously, the data
 15       that is most relevant to humans when doing evaluations,
 16       so, of course, you always use human data first, but
 17       hazard identifications have been made without human data.
 18                    Q.            Hazard identification has been made
 19       without human data.            Is that what you said?
 20                    A.            It has been made.                 But, of course, if
 21       you have human data, you give preference to human data.
 22                    Q.            I am talking about in a situation --
 23       strike that.
 24                                  When you say human data, what are you
 25       talking?
                                 Draft Copy
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   1                   A.              Epidemiologic studies.
   2                   Q.              When epidemiological studies do not
   3      indicate a hazard, but there are other lines of evidence
   4      such as animal toxicological studies, can hazard
   5      identification be made?
   6                                   MR. LYNCH:         Objection to the
   7                   form of the question.
   8                                   MR. LERNER:          Objection to the
   9                   form.
 10                    A.              Hazard identification -- I am sorry
 11       repeat the question again.
 12                    Q.              Sure.
 13                                    When epidemiological data do not
 14       indicate a hazard, but other lines of evidence do such as
 15       animal toxicological data, can hazard identification be
 16       made?
 17                                    MR. LYNCH:         Objection to the
 18                    form of the question.
 19                    A.              I think hazard identification can be
 20       made, but the risk assessor, you know, will give a
 21       considerable weight to the human studies that don't show
 22       anything, so.              Hazard identification can be made, you
 23       know, if human studies don't show anything.                     It is just
 24       that you are not going to give it as much -- you know,
 25
                                 Draft Copy
          there wouldn't be -- the hazard would not be


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   1      identified -- you would not identify the thing as a
   2      hazard strongly or strong.                  You wouldn't identify it as a
   3      hazard.        You would have to take the human data into
   4      consideration in making the determination.
   5                   Q.            So, in the situation that I said, can a
   6      hazard identification be made or can't a hazard
   7      identification be made when the epidemiological data do
   8      not indicate a hazard, but there's other data that does
   9      such as animal toxicological studies?
 10                    A.            You can make a hazard identification.
 11       The question is and the point is, what does the hazard
 12       identification say.            That's the important thing.
 13                    Q.            Well, what can a hazard identification
 14       say other than this particular substance is a hazard?
 15                    A.            It's not an all or none thing.            I mean,
 16       you take all of the data that you have.                      You take the
 17       animal data, you take any other kind of data that you
 18       have, and you take the human data, and you make a hazard
 19       identification.            That doesn't necessarily mean you are
 20       indicating it's a hazard.                 You are just making an
 21       identification which is the procedure that you are going
 22       through.
 23                    Q.            What do you mean by hazard
 24       identification?
 25                    A.
                                 Draft Copy
                                     Hazard identification is, you are


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August 1, 2006                                                                    ROUGH DRAFT


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   1      evaluating whether a substance can be associated with the
   2      particular disease or health effect.
   3                   Q.            And that can be done even though
   4      epidemiological data does not indicate a hazard, correct?
   5                   A.            You can do the hazard identification,
   6      but don't get it confused by saying that you are doing
   7      the process of hazard identification with saying that
   8      there's a hazard.            Hazard identification is merely the
   9      process.          Determining whether it's a hazard or not is the
 10       evaluation of all of the data.                      That is the human data,
 11       the animal data, all of the other data.
 12                    Q.            Do epidemiologists study groups of
 13       people?
 14                    A.            Yes.
 15                    Q.            Do epidemiologists in normal practice
 16       determine what cause cancer in a single individual?
 17                    A.            Not in a single individual, no.
 18                    Q.            Do epidemiologists in normal practice
 19       determine what contributed to the development of a cancer
 20       in a single individual?
 21                    A.            I think the information developed by
 22       epidemiologists allows you to make comment on that.
 23                    Q.            I am asking you whether epidemiologists
 24       in the normal course of their practice determines what
 25
                                 Draft Copy
          contributes to the development of a cancer in a single


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August 1, 2006                                                               ROUGH DRAFT


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   1      individual?
   2                                 MR. LERNER:          He just answered
   3                    the question.       He is not answering the
   4                    same question two times in a row.
   5                                 MR. KRISTAL:           Are you
   6                    instructing him not to answer?
   7                                 MR. LERNER:          Yes.
   8                                 All of the instructions, so we
   9                    don't have to burden the record we
 10                     will review with the judge at a later
 11                     date, all of the instructions not to
 12                     answer.
 13                     Q.           You've heard of the term association
 14       before in terms of an epidemiological term?
 15                     A.           Yes.
 16                     Q.           What is your definition of an
 17       association?
 18                     A.           Association would be whether you can --
 19       well, again, using the word to define itself, I guess,
 20       but you are looking at whether there is an association
 21       between a particular exposure and a particular outcome.
 22                     Q.           Is there a way you could define it
 23       without using the word in the definition?
 24                     A.           Let's say, to see if there's a
 25       relationship.
                                 Draft Copy
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   1                   Q.            So, an association is to see if there's
   2      a relationship between an exposure and a certain health
   3      outcome?
   4                                 MR. LERNER:          Objection to the
   5                   form.
   6                                 He just answered your
   7                   question.
   8                                 I don't think it is
   9                   appropriate for you to paraphrase what
 10                    he is saying in the question.
 11                    Especially if you are not necessarily
 12                    doing it accurately.
 13                                  He is not answering the
 14                    question.
 15                    Q.            How does an epidemiologist determine
 16       whether there is or isn't an association between an
 17       exposure and a health hazard?
 18                    A.            Well, you would look at the -- you
 19       would, of course, do a statistical evaluation or look for
 20       a possible confounder to the disease.                        You look to see if
 21       there's an exposure response.                     You look to see what is
 22       the strength of the relationship in terms of relative
 23       risk and odds ratio and see if it makes biological sense.
 24                    Q.            Anything else?
 25                    A.
                                 Draft Copy
                                     I think that is all I can think of right


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   1      now.
   2                   Q.            Is there a difference between an
   3      association and a causal association?
   4                   A.            Well, the causal association is where
   5      the --
   6                   Q.            Can you answer that first question?     Is
   7      there a difference?
   8                   A.            I would say there's a difference, yes.
   9      I think somebody looks at an association in the causal
 10       association being that one believes that the exposure is
 11       casually associated.             An association I think I would --
 12       you might find an association whether it is casually
 13       associated or not is may be another question.
 14                    Q.            So, if in an epidemiological study one
 15       finds an association between the exposure and the health
 16       outcome that's being measured it's not necessarily cause
 17       and effect.
 18                                  Is that fair to say?
 19                    A.            Please repeat the question.
 20                                  MR. LYNCH:         Objection to the
 21                    form of the question.
 22                    Q.            Sure.
 23                                  If in an epidemiological study one finds
 24       an association between an exposure and a health outcome
 25
                                 Draft Copy
          doesn't mean necessarily that that association is causal?


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   1                   A.            Generally, to determine causal
   2      association you would look at several -- more than one
   3      study, so -- because one of the tenets of determining
   4      causal association would be consistency.
   5                   Q.            What is your minimum criteria as an
   6      epidemiologist to determine causation between an exposure
   7      and a health outcome?
   8                   A.            I don't think it's between -- between
   9      causation and a health outcome?
 10                    Q.            No.      Let me rephrase the question.
 11                                  I would like to know the minimum
 12       criteria that you utilize to render an opinion to a
 13       reasonable degree of certainty that an association
 14       between an exposure and a health outcome is causal?
 15                    A.            I don't think you can just say -- that
 16       you can define criteria like it is, you know, ten
 17       studies, one study, relative risk and that sort of thing.
 18       I think it is in the judgment of the -- it is a
 19       professional judgment that you do and, you know, it is
 20       not -- it's going to depend on the data and those
 21       criteria that were just mentioned.
 22                    Q.            What criteria, confounder, exposure
 23       response?
 24                    A.            You are looking at confounding, how an
 25
                                 Draft Copy
          exposure responds, you are going to look at consistency,


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   1      you are going to look at temporal, that is did the
   2      exposure precede the disease and whether there is
   3      biologic rationale for what it is.
   4                   Q.            Can scientists make a determination that
   5      an exposure caused a particular disease in the absence of
   6      epidemiology?
   7                   A.            I think it is -- it could be very
   8      difficult.          Epidemiology I think is -- we are talking
   9      about human disease and epidemiology is, you know, humans
 10       are the relevant species here.
 11                    Q.            I am not asking whether it is easy or
 12       difficult.          I am asking whether it can be done?
 13                    A.            I don't think it can be done.
 14                    Q.            What are you relying on for that?       Is
 15       there any literature?
 16                    A.            I think it is my -- I think it is my
 17       professional judgment as a health risk assessor as an
 18       epidemiologist.
 19                    Q.            So, is it your opinion that no one can
 20       ever say that an exposure caused a disease unless there
 21       is epidemiology?
 22                                  MR. LERNER:          Objection to the
 23                    form.
 24                                  I don't know what no one can
 25
                                 Draft Copy
                       ever say is.


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   1                                 Don't answer it in that form,
   2                   Doctor.
   3                                 MR. KRISTAL:              Are you
   4                   instructing him not to answer?
   5                                 MR. LERNER:             In that form,
   6                   yes.
   7                   Q.            Can a scientist -- strike that.
   8                                 What epidemiology do you need to have at
   9      a minimum in order to state that an exposure causes a
 10       disease?
 11                                  MR. LERNER:             Isn't this
 12                    exactly what you asked around four
 13                    minutes ago before you built up the
 14                    questions you've been asking?
 15                                  MR. KRISTAL:              No.
 16                                  MR. LERNER:             It sounds like
 17                    the same question to me.
 18                    Q.            Let me be clear.
 19                                  Do you need a certain relative risk?
 20       Does it have to be greater than three, five, ten?
 21                    A.            No, no.
 22                    Q.            Does it have to be any minimum relative
 23       risk?
 24                    A.            No.      Again, I mean, you did ask that
 25
                                 Draft Copy
          question earlier and I did respond to the question


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   1      earlier.          But, I think that it depends on the information
   2      that's there.              I can't -- you know, no risk assessor is
   3      going to say it's, you know, relative risk of this, or
   4      relative risk of that or anything like that.                       It is in
   5      the judgment of the health risk assessor that's
   6      evaluating data.
   7                   Q.             Can any risk assessor say that an
   8      exposure caused the disease without epidemiology?
   9                                  MR. LERNER:           Just note my
 10                    objection to the form.
 11                    A.             Without -- I don't think you can -- you
 12       are asking if -- would you repeat the question?
 13                                   MR. KRISTAL:            Could you please
 14                    read the question?
 15                          (The last question was read back.)
 16                    A.             Health risk assessors generally are not
 17       going to say that something necessarily causes disease.
 18       They might give you probabilities, but they are not --
 19       you know, in any individual circumstance of somebody's
 20       disease we are going to look at all of the information
 21       available and all the various studies that are available
 22       in making a determination.                    You are saying, without
 23       epidemiology is the question.                       You know, I think -- I
 24       will say, no.
 25                    Q.
                                 Draft Copy
                                      Have you ever believed that an exposure


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   1      caused the disease more likely than not without
   2      epidemiology?
   3                                 MR. LYNCH:         Objection to the
   4                   form.
   5                                 It is ambiguous.
   6                                 What context are you talking
   7                   about?
   8                                 MR. LERNER:          Not in that form.
   9                   You have to be more specific than
 10                    that.
 11                                  You don't have to answer it in
 12                    that form.
 13                                  MR. KRISTAL:           We need to get
 14                    the judge on the phone.
 15                                  THE WITNESS:           Do I leave the
 16                    room.
 17                                  MR. LERNER:          When the judge
 18                    gets on the phone.
 19                                  MR. KRISTAL:           Could you just
 20                    mark that last question, and we will
 21                    come back to it.
 22                                  (Pause in proceedings.)
 23                    Q.            In order for you to render an opinion
 24       that it is more likely than not that an exposure caused a
 25
                                 Draft Copy
          disease, can you do it at an increased relative risk of


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August 1, 2006                                                                         ROUGH DRAFT


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   1      1.1?
   2                   A.            I mean, in what context?
   3                                 You are asking a very general question.
   4                   Q.            In order for you to render an opinion
   5      that an exposure caused the disease, do you have to have
   6      a statistically significant relative risk of two or
   7      greater from epidemiological studies to do that?
   8                   A.            Again, I guess part -- I think you
   9      are -- are you speaking of a specific disease case?                           Are
 10       you speaking of a disease in general?                           I am not sure what
 11       you are talking about.
 12                    Q.            Well, if you have an exposure to
 13       hexavalent chromium and lung cancer and you are
 14       evaluating whether or not hexavalent chromium causes lung
 15       cancer, do you need to have an epidemiological study that
 16       shows the relative risk of two or greater that is
 17       statistically significant?
 18                    A.            I think you -- are you talking about an
 19       individual case?            Are you talking about --
 20                    Q.            What do you mean an individual case?
 21                    A.            Are you talking about an individual such
 22       as Mr. D'ulisse?
 23                    Q.            No.      I am talking about general, in
 24       general, whether an exposure can cause a disease.                          Do you
 25
                                 Draft Copy
          require as a minimum an epidemiological study that has a


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   1      statistically significant increase relative risk of two?
   2                   A.             I think you have to -- there is a lot
   3      mixed up in that question, all right.
   4                                  If you are talking about taking dose
   5      response in trying to estimate a risk or are you talking
   6      about the relative risk from a particular study and
   7      trying to relate it.                There's a lot of nuances to the
   8      question that, you know, I am not exactly what it is that
   9      you are trying to ask.
 10                    Q.            If you were asked to research the
 11       question of whether exposure A causes disease B in
 12       general, I think I hear you saying that you would require
 13       some human epidemiological data before you would say that
 14       exposure A causes disease B. Is that correct?
 15                    A.            That is correct.
 16                    Q.            Does that epidemiological data have to
 17       be a particular type of epidemiologic study?                    In other
 18       words, does it have to be a case controlled study?                   Can
 19       it be a cohort study?
 20                    A.            So, this is a different question.         You
 21       are on to a new question now.
 22                    Q.            Okay.
 23                    A.            No.      It wouldn't have to be a particular
 24       type of study.             It would require that it was well
 25
                                 Draft Copy
          designed, you know, it was done as well as it could be.


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   1                   Q.            Does the study that was well designed
   2      and executed well have to have a result of a particular
   3      relative risk before you would say that exposure A caused
   4      disease B?
   5                   A.            No.      I have to look at the totality of
   6      the information, all of the epidemiology studies required
   7      to be make that determination.
   8                   Q.            Do the results of the epidemiological
   9      studies with respect to relative risk have to be
 10       statistically significant in order for you to say that
 11       exposure A caused disease B or could you say that
 12       exposure A caused disease B based on the totality of the
 13       evidence even if there was no statistically significant
 14       increased relative risk.
 15                    A.            Statistically signify is, obviously, a
 16       criteria I would look at.                    But, you know, I want to see
 17       what the totality of the information says.
 18                    Q.            What other information, if any, other
 19       than epidemiological data would you look at in
 20       determining whether exposure A causes disease B?
 21                    A.            What kind of information are you --
 22                    Q.            Well, would you look at animal
 23       toxicology?
 24                    A.            That is -- I would look at it, but it is
 25
                                 Draft Copy
          not -- if it is supportive fine.


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   1                   Q.            Well, I think you said in the context of
   2      an answer that you would look at the totality of the
   3      data?
   4                   A.            I would look at the totality of the data
   5      particularly with regard to the epidemiology information.
   6                   Q.            What else is included in the totality of
   7      the data potentially?
   8                   A.            I mean, is it consistent with any other
   9      information.
 10                    Q.            What other types of information are you
 11       talking about?
 12                    A.            Well, is it consistent with what we know
 13       about the exposure.
 14                    Q.            Based on what kind of information?             Do
 15       you look at in vitro data?                  Do you look at in vivo data?
 16       Do you look at animal studies?                      Do you look at case
 17       reports or case series?                I am trying to find out what is
 18       the universe of data that you would look at in addition
 19       to epidemiological data to make a causation
 20       determination?
 21                    A.            You know, there are a lot of questions
 22       mixed up in what you are talking about.                      You are -- I
 23       think we are mixing what a health risk assessment would
 24       do versus what, you know, somebody having disease.                        You
 25
                                 Draft Copy
          know, in one particular case, I mean, as a health risk


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August 1, 2006                                                                     ROUGH DRAFT


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   1      assessor, you know, you might give a hazard
   2      identification, a dose response assessment, you know, and
   3      so forth.          What you are talking about is sort of a mix of
   4      combining hazard identification with disease causation.
   5      You know, the answer is, obviously, going to depend --
   6      the question seems to be a little more specific.                      You are
   7      asking very general questions and I think it needs to be
   8      made more specific with regard to, are you talking about
   9      the disease in a population.                       Are you talking about you
 10       know, hazard identification that a regulatory agency
 11       would put on something?                   Are you talking about -- you
 12       need to be more specific in what you are asking.
 13                    Q.            Does asbestos from asbestos-containing
 14       brakes cause mesothelioma?                     Can it cause mesothelioma in
 15       anybody?
 16                    A.            There's no evidence of that.
 17                    Q.            What is the totality of the types of
 18       evidence you looked at to answer that question?
 19                    A.            I have looked at the epidemiology
 20       studies.         I have looked at what is known about asbestos,
 21       about fiber length and the type of asbestos.
 22                    Q.            Anything else?
 23                    A.            No.      I think that is -- I mean, that is
 24       pretty much general exposures.
 25                    Q.
                                 Draft Copy
                                     When you said that you looked at the


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   1      epidemiology, you are talking about the epidemiology
   2      specific to brake mechanic exposures and mesothelioma.
   3                   A.            I am sorry.
   4                                 Would you repeat the question again?
   5                   Q.            Sure.
   6                                 I asked you what was the totality of the
   7      information that you've looked at in answering the
   8      question whether or not exposure to asbestos from
   9      asbestos-containing brakes can cause mesothelioma and one
 10       of the things you said was the epidemiology?
 11                    A.            That's correct.
 12                    Q.            I am asking you, are you talking about
 13       the epidemiology relating to brake mechanics asbestos
 14       exposure and mesothelioma?
 15                    A.            Yes.
 16                    Q.            Was there any epidemiology study that
 17       you looked at in that category that was designed
 18       specifically to look at whether or not brake mechanics
 19       who worked with asbestos-containing brakes were at an
 20       increased risk of mesothelioma?
 21                    A.            I think Hessel looked at that
 22       specifically, and I think that Woitowitz and Rodelsperger
 23       looked at it.
 24                                  MR. KRISTAL:           Woitowitz is
 25
                                 Draft Copy
                       W-O-I-T-O-W-I-T-Z. Rodelsperger is


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August 1, 2006                                                           ROUGH DRAFT


                                                                              Page 85

   1                   R-O-D-E-L-S-P-E-R-G-E-R.
   2                   Q.            So, you are saying that Hessel's
   3      epidemiological study was specifically designed to test
   4      the hypothesis whether or not brake mechanics were at
   5      increased risk for getting mesothelioma from their
   6      asbestos exposure?
   7                   A.            I'm looking at brake mechanics.
   8                   Q.            I am not asking what they were looking
   9      at.     I am asking you about -- strike that.
 10                                  You have designed epidemiological
 11       studies, right?
 12                    A.            Yes.
 13                    Q.            You start out with a hypothesis.
 14                    A.            Uh-hmm.
 15                    Q.            Is that right?
 16                    A.            That's correct.
 17                    Q.            Are there any studies that you looked at
 18       with respect to brake mechanics that had as the
 19       hypothesis whether brake mechanics were at an increased
 20       risk of getting mesothelioma from asbestos exposure?
 21                    A.            I will think the Hessel study looked
 22       at -- was intended to look at what the risk was to brake
 23       mechanics.
 24                    Q.            Do you know what the hypothesis of the
 25       Hessel study were?
                                 Draft Copy
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                                                                                    Page 86

   1                   A.            Brake mechanics were at increased risk
   2      of mesothelioma.
   3                   Q.            Are you saying the same thing for the
   4      Woitowitz and Rodelsperger study?
   5                   A.            That is correct.
   6                   Q.            Are there any other studies that you
   7      believe had as the hypothesis that was being tested
   8      whether brake mechanics were at an increased risk of
   9      mesothelioma from their asbestos exposure?
 10                    A.            Well, the other studies looked at garage
 11       mechanics and garage mechanics, of course, get asbestos
 12       exposure.
 13                    Q.            Maybe you are not understanding.        I am
 14       not asking you whether or not a study looked at a
 15       particular subgroup or not.                   I am asking about whether
 16       going into the study the design of the study was testing
 17       a certain hypothesis.
 18                                  Do you understand what I am asking you?
 19                    A.            The intent, I mean, of course, both
 20       Hessel and Woitowitz and Rodelsperger was to look at do
 21       brake mechanics have an increased risk.
 22                    Q.            When you are looking at the totality of
 23       the evidence and you are looking at epidemiological data
 24       with respect to whether or not there's an increased
 25
                                 Draft Copy
          relative risk, does the relative risk have to be


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August 1, 2006                                                             ROUGH DRAFT


                                                                                Page 87

   1      statistically significant in order to determine whether
   2      or not the exposure was causing the disease?
   3                   A.            You know, it's a very general question.
   4      The relative risk, you know, again, I would -- you have
   5      to look at a number of studies and, you know, you would
   6      look at whether the relative risk was significant, and
   7      you would look at, you know, the consistency and so
   8      forth.       So, you know, you are trying to be -- I mean, I
   9      think you are being specific about a particular study,
 10       but I want to look at all of the information that I have
 11       available to me, and that is where I would make my
 12       decision.
 13                    Q.            If there was only one study, one
 14       epidemiological study, that had a relative risk of 1.32
 15       that was not statistically significant, does that then
 16       end the inquiry in your mind as to whether or not the
 17       exposure that was looked at causes the disease that was
 18       looked at --
 19                    A.            You are creating --
 20                    Q.            -- or do you go on to look at the other
 21       evidence as well?
 22                    A.            I would look at all of the evidence.
 23                    Q.            Okay.     You mentioned confounder earlier,
 24       15, 20 minutes ago.
 25
                                 Draft Copy
                                     Do you recall that?


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August 1, 2006                                                                      ROUGH DRAFT


                                                                                         Page 88

   1                   A.               Right.
   2                   Q.               I want to make sure we are on the same
   3      waive length here.
   4                                    What is your understanding of what a
   5      confounder is in an epidemiological study?
   6                   A.               It is an exposure that could be related
   7      to the exposure that you are studying that could also
   8      cause the disease.
   9                   Q.               If you don't control for confounders,
 10       what does that tell you about the result that you have
 11       got, if there is a confounder?
 12                    A.              If you don't control for confounders?
 13       If you see consistency in your results then you will be
 14       concerned about that issue, but you are still seeing
 15       consistency in results.                   Then, you know, I think you are
 16       going to -- again, you have to look at all the
 17       information.               You are kind of taking a general question
 18       and, you know, trying to be very specific.                      But, in
 19       general, you know, if you look at all the information and
 20       if you can see a consistency in what you've got, then,
 21       that's where you are going to draw your conclusion.
 22                    Q.              Do you know what a null-result of an
 23       epidemiological study is?
 24                    A.              Essentially, whenever you are -- a
 25
                                 Draft Copy
          null-result is that you assume that there is no


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                        Page 89

   1      difference, and essentially your hypothesis is that there
   2      is a difference, so you are testing the null to see if
   3      there is a difference.
   4                   Q.            In your opinion do null -- strike that.
   5      Let me ask it differently?
   6                                 Do you agree or disagree null-results
   7      from epidemiological studies do not prove the absence of
   8      a carcinogenic effect.
   9                   A.            Null-results from epidemiologic studies
 10       do not prove the absence of a carcinogenic effect?
 11                    Q.            Right.      Do you agree or disagree with
 12       that?
 13                    A.            I think it is -- it depends in the
 14       context, you know.            If you are in the context of -- you
 15       know, we are kind of mixing some things here.                      We are
 16       mixing hazard assessment.                 I mean, I can see that being a
 17       quote out of a hazard assessment document with
 18       determining causal association.                       If the evidence is there
 19       is no causal association, that is -- you know, that is
 20       your conclusion.
 21                    Q.            So, do you agree or disagree or can't
 22       agree or disagree null-results from epidemiologic studies
 23       do not prove the absence of a carcinogenic effect?
 24                    A.            In what context are you asking that
 25       question?
                                 Draft Copy
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                                                                                    Page 90

   1                   Q.            If you have several epidemiologic
   2      studies that don't show an increased risk, does that then
   3      prove that there is no carcinogenic effect if what you
   4      were studying was a potential carcinogen?
   5                   A.            Again, I think you are asking this --
   6      if you asked this in the context of hazard identification
   7      kind of health risk assessment, for example, what the
   8      Environmental Protection Agency means, it is one
   9      question.          If you are trying to do an evaluation of
 10       whether there's exposure that is casually associated with
 11       a disease, that is another question, okay.                   If you are
 12       going to make a determination that there is a causal
 13       association, you need to have data to demonstrate that.
 14                    Q.            Well, if all of the epidemiological data
 15       did not show a relative increased risk, does that prove
 16       that the agent in question is not causing the disease
 17       that you are looking at?
 18                    A.            You have to go with the information that
 19       you have available and the information that you have
 20       available, yes, would indicate there is no risk.
 21                    Q.            Can a null-result from an
 22       epidemiological study arise from inadequate statistical
 23       power?
 24                    A.            I wouldn't say that null-results
 25       necessarily result --
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                                                                                         Page 91

   1                   Q.            I didn't say necessarily.
   2                                 I am asking, can a null-result of an
   3      epidemiological study arise from inadequate statistical
   4      power?
   5                   A.            Well, there are a couple of questions
   6      mixed up in that question.                  It depends on -- if you are
   7      saying -- you could have something that is above what you
   8      would consider the null, but not be statistically
   9      significant, and that would result from inadequate
 10       statistical power.           So, it is not a simple question of
 11       could inadequate statistical power result in a null.                       I
 12       mean, there is a little bit more to it than that which is
 13       what I just described.
 14                    Q.            But, if you have a less than one
 15       relative risk that is statistically significant, can that
 16       arise from lack of statistical power of the study?
 17                    A.            It is not going to result from
 18       inadequate statistical power.                     Statistical power, you
 19       know, is going to give you more confidence in what it is
 20       that you are observing.
 21                    Q.            So, you are saying that a relative risk
 22       less than one which is statistically significant can
 23       never arise from lack of statistical power in an
 24       epidemiological study?
 25
                                 Draft Copy
                                     MR. LERNER:          Objection to the


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August 1, 2006                                                                       ROUGH DRAFT


                                                                                          Page 92

   1                     form.
   2                                 Please don't start questions
   3                     by saying you are saying.
   4                                 Don't answer that question in
   5                     that form, please.
   6                                 MR. KRISTAL:             Mark that
   7                     question.
   8                                 Off the record.
   9                                 (The witness left the room.)
 10                                  (Conference call with Judge
 11                      Freedman and counsel.)
 12                                  MR. KRISTAL:             This is Jerry
 13                      Kristal from Weitz & Luxenberg.                      I am
 14                      at a deposition.
 15                                  Is the judge around?
 16                                  We have called the Special
 17                      Master --
 18                                  Hi, Judge, it is Jerry
 19                      Kristal.
 20                                  How are you?
 21                                  JUDGE FREEDMAN:                  Okay.
 22                                  How are you?
 23                                  MR. KRISTAL:             Good.
 24                                  I am at a deposition of a
 25
                                 Draft Copy
                         defense epidemiologist.                     We are at


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                       Herman Gibb
August 1, 2006                                                                         ROUGH DRAFT


                                                                                            Page 93

   1                     loggerheads to a certain degree.
   2                                   We have called Laraine twice,
   3                     and twice Laraine has told Phil
   4                     Lerner, who is defending the dep, that
   5                     he is not to instruct his witness not
   6                     to answer a question based on a form
   7                     objection.
   8                                   He told her he was going to do
   9                     that anyway, and he has done that
 10                      several times, since our last phone
 11                      call.       Laraine said if we keep calling
 12                      her she is going to keep on giving the
 13                      same instruction, so we should perhaps
 14                      call you.
 15                                    JUDGE FREEDMAN:                 Now, when you
 16                      say it's a form objection, that's the
 17                      one they are allowed to do that.
 18                                    MR. KRISTAL:             Allowed to do
 19                      what?
 20                                    JUDGE FREEDMAN:                 A form
 21                      objection, he can --
 22                                    MR. KRISTAL:             He is
 23                      instructing the witness not to answer
 24                      a form objection question.                      I
 25
                                 Draft Copy
                         understand that it gives me the


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                     Herman Gibb
August 1, 2006                                                                       ROUGH DRAFT


                                                                                          Page 94

   1                     opportunity to change the question, or
   2                     not, or live with the question.                      But,
   3                     Laraine has ruled that the only
   4                     instances when you can instruct a
   5                     witness not to answer is to assert a
   6                     privilege or if the question is
   7                     scurrilous or scandalous, I think she
   8                     said, or some language to that effect.
   9                                 If I could read you back the
 10                      last question where there was an
 11                      instruction, perhaps that will put it
 12                      in context.
 13                                  JUDGE FREEDMAN:                 Right.
 14                                  MR. KRISTAL:             Hold on.
 15                                  We will do that.
 16                                  This is the last question I
 17                      asked where Mr. Lerner instructed the
 18                      witness not to answer.
 19                                  "Question:           So, you are saying
 20                      that a relative risk less than one
 21                      which is statistically significant can
 22                      never arise from lack of statistical
 23                      power in an epidemiological study?"
 24                                  This is the epidemiologist.
 25
                                 Draft Copy
                         He objected to the form and instructed


                                      Priority One Court Reporting
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August 1, 2006                                                                           ROUGH DRAFT


                                                                                              Page 95

   1                     the witness not to answer the
   2                     question.
   3                                   JUDGE FREEDMAN:                 Okay.
   4                                   It's a confusing question.                    I
   5                     mean, I think instead of objecting to
   6                     the form, why don't you say break that
   7                     down.       Say what's wrong with the
   8                     question.
   9                                   If you are going to object to
 10                      form, which you have a right to do,
 11                      then ask that it be rephrased in
 12                      proper form.
 13                                   MR. KRISTAL:              Right.      But, I
 14                      have the option of either agreeing
 15                      that the form is proper, or improper
 16                      or living with --
 17                                   JUDGE FREEDMAN:                  That clearly
 18                      was a difficult question.                      I mean, you
 19                      are summarizing what the witness says.
 20                                   MR. KRISTAL:              Right.
 21                                   JUDGE FREEDMAN:                  You think you
 22                      are summarizing it, but it gets a
 23                      little convoluted.
 24                                   MR. KRISTAL:              So, are you
 25
                                 Draft Copy
                         saying, then, that he has the right


                                        Priority One Court Reporting
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August 1, 2006                                                                       ROUGH DRAFT


                                                                                          Page 96

   1                     anytime there is a form objection and
   2                     the --
   3                                 JUDGE FREEDMAN:                 To instruct
   4                     the witness not to answer --
   5                                 MR. KRISTAL:             -- if the
   6                     questioner doesn't change the
   7                     question, the defender at the
   8                     deposition can instruct the witness
   9                     not to answer the question?
 10                                  JUDGE FREEDMAN:                 I think
 11                      that's what the laws says.
 12                                  MR. KRISTAL:             Okay.
 13                                  Well, that's not what Laraine
 14                      believes it says, and it's not what
 15                      the results that we have been
 16                      operating under for the last 15 years
 17                      say, but if that is your ruling then I
 18                      will live --
 19                                  JUDGE FREEDMAN:                 But, in other
 20                      words, the question has to be
 21                      answered.
 22                                  MR. KRISTAL:             Well, that's the
 23                      point.
 24                                  JUDGE FREEDMAN:                 You know, you
 25
                                 Draft Copy
                         can ask -- just say --


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August 1, 2006                                                                    ROUGH DRAFT


                                                                                       Page 97

   1                                 MR. KRISTAL:             I have no
   2                     problem with him making the objection.
   3                     He is telling the witness not to
   4                     answer and the witness is not
   5                     answering.
   6                                 JUDGE FREEDMAN:                 Well, if a
   7                     form objection, you are supposed to
   8                     rephrase them.         Unless the form -- if
   9                     the form is correct, of course, and it
 10                      is a wrongful objection, then you
 11                      shouldn't.     Then, of course, if you
 12                      start doing that -- now, you are
 13                      saying this happened two or three
 14                      times.
 15                                  MR. KRISTAL:             This happened
 16                      several times.         We can go back to the
 17                      question before that one if you would
 18                      like.
 19                                  JUDGE FREEDMAN:                 Yes.
 20                                  Let me hear the one before it.
 21                                  MR. KRISTAL:             My question to
 22                      him was
 23                                  "Question:           Have you ever
 24                      believed that an exposure caused the
 25
                                 Draft Copy
                         disease more likely than not without


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August 1, 2006                                                                    ROUGH DRAFT


                                                                                       Page 98

   1                     epidemiology?"
   2                                 JUDGE FREEDMAN:                 That is a
   3                     good question.
   4                                 MR. KRISTAL:             Here is the
   5                     problem that I think we are going to
   6                     run into.     My understanding of the law
   7                     is that the only objection --
   8                                 MS. FREEDMAN:              That's a
   9                     perfectly good cross-examination
 10                      question, and that's what you are
 11                      doing.
 12                                  MR. KRISTAL:             But, generally,
 13                      Your Honor, my understanding of the
 14                      law is, the attorney can make a form
 15                      objection and the questioner --
 16                                  MS. FREEDMAN:              The purpose of
 17                      a form objection is so that you can
 18                      rephrase them.
 19                                  MR. KRISTAL:             Right.
 20                                  And if I choose not to
 21                      rephrase it because I disagree --
 22                                  MS. FREEDMAN:              You can't -- my
 23                      understanding is you have to rephrase
 24                      it or else get a ruling on it.
 25
                                 Draft Copy
                                     MR. KRISTAL:             Well, I think


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   1                     that's incorrect, Your Honor.
   2                                 I think the questioner --
   3                                 JUDGE FREEDMAN:                 Okay.   Then,
   4                     maybe I am wrong then.
   5                                 MR. KRISTAL:             Well, is it
   6                     possible for us to call you back in a
   7                     little while?        Because otherwise we
   8                     are going to have an impossible
   9                     situation at all depositions where
 10                      when a form objection is made if the
 11                      questioner says, I don't think there's
 12                      a problem with that, then the defender
 13                      of the dep instructs the witness not
 14                      to answer, we are never going to
 15                      complete any depositions.
 16                                  JUDGE FREEDMAN:                 I think you
 17                      should reserve that, reserve the form.
 18                                  What was your form objection
 19                      on that one?
 20                                  MR. KRISTAL:             It is not a
 21                      question, Your Honor, of --
 22                                  MS. FREEDMAN:              Counsel, I am
 23                      asking the other counsel what his form
 24                      objection was.
 25
                                 Draft Copy
                                     MR. LERNER:            The problem with


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                                                                                           Page 100

   1                     we are having --
   2                                    JUDGE FREEDMAN:                 I can't hear
   3                     you.        Speak so I can hear you.
   4                                    MR. LERNER:            The problem we
   5                     are having, Your Honor, is often times
   6                     Mr. Kristal is asking questions by
   7                     paraphrasing what the witness has
   8                     already answered the question to and,
   9                     in my opinion, whether it's
 10                      intentional or not, I think he is
 11                      mis-paraphrasing.               So, when he started
 12                      the last question by saying, so you
 13                      are saying, all I suggested to
 14                      Mr. Kristal was not start a question
 15                      by saying, so you are saying because I
 16                      think he is getting what he is saying
 17                      wrong in the first instance.
 18                                    Secondly, by starting a
 19                      question like that is essentially
 20                      saying that I have already asked the
 21                      question, so let me tell you what I
 22                      think your answer is.
 23                                    JUDGE FREEDMAN:                  I frankly
 24                      agree with that, but not that last
 25
                                 Draft Copy
                         question.


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                                                                                       Page 101

   1                                 MR. KRISTAL:             Yeah.      But,
   2                     Judge, the question --
   3                                 JUDGE FREEDMAN:                 That last
   4                     question was fine.
   5                                 MR. KRISTAL:             The question is
   6                     not whether the form objection is
   7                     appropriate or not.              The question is
   8                     whether at a deposition an attorney
   9                     may instruct a witness not to answer.
 10                                  MR. FREEDMAN:              I understand
 11                      that, Mr. Kristal.
 12                                  MR. KRISTAL:             But, if you look
 13                      at the C.P.L.R. --
 14                                  JUDGE FREEDMAN:                 The purpose
 15                      of a form objection is so that you
 16                      will rephrase it --
 17                                  MR. KRISTAL:             Right.
 18                                  JUDGE FREEDMAN:                 -- not so
 19                      that the witness will answer it
 20                      anyway.
 21                                  MR. KRISTAL:             If you look at
 22                      C.P.L.R., Judge, it is quite --
 23                                  JUDGE FREEDMAN:                 I will look
 24                      at it.
 25
                                 Draft Copy
                                     What provision do you want me


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August 1, 2006                                                                         ROUGH DRAFT


                                                                                           Page 102

   1                     to look at?
   2                                   MR. KRISTAL:             It is the
   3                     3100's, but there are very specific
   4                     times --
   5                                   JUDGE FREEDMAN:                 I will go and
   6                     get the 3100's right now, okay?
   7                                   MR. KRISTAL:             Thank you.
   8                                   JUDGE FREEDMAN:                 Use of
   9                     depositions.         Examination of witness
 10                      who doesn't understand English.
 11                      Taking depositions on written
 12                      questions.       Notice to take oral
 13                      questions.
 14                                    MR. KRISTAL:             I think there is
 15                      a section conduct of examination or
 16                      conduct of deposition.
 17                                    JUDGE FREEDMAN:                 Does anyone
 18                      have it?
 19                                    MR. KRISTAL:             Do you have the
 20                      C.P.L.R. here?
 21                                    MR. LERNER:            You know, if you
 22                      want me to go find you one, I can.
 23                                    JUDGE FREEDMAN:                 Conduct,
 24                      3113.       Let's take a look.
 25
                                 Draft Copy
                                       It says who can be taken.


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August 1, 2006                                                                         ROUGH DRAFT


                                                                                           Page 103

   1                     Oath of witnesses.                 All objections
   2                     made at the time of the examination of
   3                     the qualification of the officer --
   4                     no.         Objections to the qualifications.
   5                     I don't see anything.
   6                                     MR. SMITH:           Your Honor, this
   7                     is Jim Smith.
   8                                     How are you?
   9                                     JUDGE FREEDMAN:                 Okay.
 10                                     MR. SMITH:            I don't know if it
 11                      is going to help at all.                        This is not
 12                      my witness, but.
 13                                     My recollection from these
 14                      depositions over the years is that,
 15                      you know, when you get to a point
 16                      where the question and the questioning
 17                      rises to a level of, you know --
 18                                     JUDGE FREEDMAN:                  I am sorry.
 19                      I can't --         you are not being clear
 20                      now.
 21                                     MR. SMITH:            I am sorry.
 22                                     When the questioning rises to
 23                      the level of harassing the witness,
 24                      then the defense counsel certainly has
 25
                                 Draft Copy
                         a right to instruct the witness not to


                                          Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                       Herman Gibb
August 1, 2006                                                                         ROUGH DRAFT


                                                                                           Page 104

   1                     answer.
   2                                     MR. KRISTAL:             Well, I agree
   3                     with that.
   4                                     JUDGE FREEDMAN:                 I agree.
   5                                     MR. SMITH:           There was an
   6                     article in the Law Journal at the end
   7                     of last week on this precise question,
   8                     and I think the proposed rules of the
   9                     court that are going to be going into
 10                      effect probably in the fall more or
 11                      less reflect what the current practice
 12                      is.         And I think that if the questions
 13                      that are pending now inappropriately
 14                      rephrase the or attempt to rephrase
 15                      the testimony of the witness that is
 16                      certainly something that neither the
 17                      witness nor the counsel for the
 18                      witness, you know, they are certainly
 19                      within their rights to prevent that
 20                      sort of testimony.
 21                                      MR. KRISTAL:             Your Honor, may
 22                      we call you back in two minutes?                         We
 23                      will get a C.P.L.R. here.                       I know
 24                      there's a specific section that
 25
                                 Draft Copy
                         specifically limits the occasions when


                                          Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                     Page 105

   1                     an attorney may instruct a witness not
   2                     to answer a question.                It is very
   3                     clear.
   4                                 JUDGE FREEDMAN:                 Okay.
   5                                 Well, if you can find it, good
   6                     for you, okay.
   7                                 MR. KRISTAL:             We will call you
   8                     right back.
   9                                 Thank you, Your Honor.
 10                                  (End Conference call with
 11                      Judge Freedman and counsel.)
 12                                  MR. KRISTAL:             Can I have a
 13                      C.P.L.R.?
 14                                  Off the record.
 15                                  (Pause in proceedings.)
 16                                  (Conference call with Judge
 17                      Freedman and counsel.)
 18                                  MR. KRISTAL:             Your Honor, I
 19                      was unable to find the specific
 20                      section of the C.P.L.R., so we just
 21                      need a ruling as to whether or not an
 22                      attorney can instruct a witness not to
 23                      answer based on an objection as to the
 24                      form of the question and then we can
 25                      move on.
                                 Draft Copy
                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                     Herman Gibb
August 1, 2006                                                                       ROUGH DRAFT


                                                                                         Page 106

   1                                  JUDGE FREEDMAN:                 I am looking
   2                     at the new rules which, counsel, I
   3                     just finally found.               There are new
   4                     rules going into effect.
   5                                  What?      I can't hear you.
   6                                  MR. KRISTAL:             We are
   7                     listening.
   8                                  JUDGE FREEDMAN:                 Okay.   No
   9                     long speaking objections.                     Attorneys
 10                      will be required to instruct witnesses
 11                      to remain silent, to provide clear and
 12                      succinct statements on the record of
 13                      the reasons the instruction is being
 14                      given.      To determine cessation of
 15                      questioning of what Mr. Zauderer
 16                      (phonetic) called a frivolous basis
 17                      attorneys be required to instruct the
 18                      witness to remain silent, to provide
 19                      clear and succinct statements on the
 20                      record of the reason the instruction
 21                      is being given.           Attorneys will only
 22                      be permitted to interrupt a deposition
 23                      when the questioning veers into one of
 24                      the prohibitive areas and as is the
 25
                                 Draft Copy
                         case when instructing the witness not


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August 1, 2006                                                                      ROUGH DRAFT


                                                                                        Page 107

   1                     to answer, a new requirement specifies
   2                     that before interrupting a deposition
   3                     an attorney will have to clearly and
   4                     succinctly state the reasons for
   5                     intervening.
   6                                 Did you hear that?
   7                                 MR. KRISTAL:             Yes.
   8                                 JUDGE FREEDMAN:                 That doesn't
   9                     quite answer it.           Now, it's to
 10                      determine the cessation.                    The new
 11                      rules are aimed at significant abuses
 12                      that have obstructed clean development
 13                      of testimony.        They don't say what the
 14                      rules -- the rules appear on page 15.
 15                      Let me see what they are.                    Page 15, it
 16                      has all kinds of new rules.
 17                      Objections at depositions.
 18                                  Objections in general.                 No
 19                      objection shall be made at deposition
 20                      except those which pursuant to
 21                      subdivision (b), (c), or (d) of Rule
 22                      3115 of C.P.L.R. would we waived if
 23                      not interposed, any subject compliance
 24                      with subdivision (e).
 25
                                 Draft Copy
                                     Let me get those.


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August 1, 2006                                                                         ROUGH DRAFT


                                                                                           Page 108

   1                                     Hold on.
   2                                     THE COURT REPORTER:                 Some of
   3                     her endings are muffled, I mean --
   4                                     JUDGE FREEDMAN:                 3115 is
   5                     errors which might be obviated if made
   6                     known promptly.              Errors and
   7                     irregularities occurring at the oral
   8                     examination in the manner of taking of
   9                     the deposition, in the form of the
 10                      questions or answers, in the oath or
 11                      affirmation, or in the conduct of
 12                      persons, and errors of any kind which
 13                      might be obviated or removed if
 14                      objection were promptly presented, are
 15                      waived unless reasonable objection
 16                      thereto is made at the taking of the
 17                      deposition.
 18                                      So, in other words, you have
 19                      to make your objection at the
 20                      deposition.          If you don't, you waive
 21                      it.         So, I am looking at these new
 22                      rules.
 23                                      That the parties shall answer
 24                      all questions at a deposition except
 25
                                 Draft Copy
                         to preserve a privilege or


                                          Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                      Herman Gibb
August 1, 2006                                                                        ROUGH DRAFT


                                                                                          Page 109

   1                     confidentiality, to enforce the
   2                     limitations set forth in the order of
   3                     the court or when the question is
   4                     plainly improper and would, if
   5                     answered, cause significant prejudice
   6                     to any person.
   7                                  An attorney shall not direct
   8                     the deponent not to answer except as
   9                     provided in C.P.L.R. 3115 or this
 10                      subdivision which says if it is
 11                      improper in form you can do it.
 12                                   MR. KRISTAL:             Well, I don't
 13                      think it says that at all, Your Honor.
 14                                   JUDGE FREEDMAN:                 Yes, it does.
 15                                   It says, errors which might be
 16                      obviated if made known promptly.
 17                      Errors and irregularities occurring at
 18                      the oral examination in the manner of
 19                      taking the deposition, in the form of
 20                      the questions or answers.                     It is right
 21                      there.      They are objected to.
 22                                   MR. KRISTAL:             They object or
 23                      it's waived.        It doesn't say they are
 24                      entitled to instruct the witness not
 25
                                 Draft Copy
                         to answer.


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August 1, 2006                                                                       ROUGH DRAFT


                                                                                         Page 110

   1                                 JUDGE FREEDMAN:                 Yes, it does.
   2                     It specifically says, yeah.
   3                                 MR. KRISTAL:             Okay.
   4                                 All we need is a ruling.
   5                                 JUDGE FREEDMAN:                 They object
   6                     or it's waived.
   7                                 MR. KRISTAL:             It doesn't say
   8                     they are entitled to instruct the
   9                     witness not to answer.
 10                                  JUDGE FREEDMAN:                 Yes, it does.
 11                      It specifically says --
 12                                  MR. KRISTAL:             All we need is a
 13                      ruling.     So, Your Honor's ruling is
 14                      that if an attorney --
 15                                  JUSTICE FREEDMAN:                 If the
 16                      question is palpably improper, as I
 17                      think at least the first one you read
 18                      to me was, then you should direct him
 19                      not to answer.         I couldn't see what
 20                      was wrong with the second one, though.
 21                                  MR. KRISTAL:             Okay.
 22                                  But, at any time, since we not
 23                      going to call you after every form
 24                      objection, if an attorney makes an
 25
                                 Draft Copy
                         objection to form are you saying that


                                      Priority One Court Reporting
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August 1, 2006                                                                      ROUGH DRAFT


                                                                                        Page 111

   1                     the attorney can --
   2                                 JUDGE FREEDMAN:                 He's got to
   3                     say what it is, what your objection
   4                     is.
   5                                 MR. KRISTAL:             Right.
   6                                 JUDGE FREEDMAN:                 If you are
   7                     summarizing testimony in a way that
   8                     sounded like the way you were doing
   9                     it --
 10                                  MR. KRISTAL:             I just want to
 11                      get some instruction for future
 12                      reference because we are not going to
 13                      be able to have somebody ruling on
 14                      whether or not the form objection is
 15                      good or not good.
 16                                  JUDGE FREEDMAN:                 My answer is
 17                      very simple.       If the form objection is
 18                      correct, then the witness should not
 19                      answer.
 20                                  MR. KRISTAL:             How are we
 21                      supposed to know if the form objection
 22                      is correct?
 23                                  JUDGE FREEDMAN:                 That's a
 24                      problem, isn't it?
 25
                                 Draft Copy
                                     MR. KRISTAL:             It is a problem.


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                     Herman Gibb
August 1, 2006                                                                       ROUGH DRAFT


                                                                                         Page 112

   1                                 So, at a deposition if an
   2                     attorney says object to form, and the
   3                     other person says, no, it is a
   4                     perfectly good question, can the
   5                     person --
   6                                 JUDGE FREEDMAN:                 When they
   7                     object to the form, then ask what is
   8                     wrong with it and rephrase it.
   9                                 MR. KRISTAL:             Suppose you
 10                      don't want to rephrase it?
 11                                  JUDGE FREEDMAN:                 If it happens
 12                      with every question, then I have a
 13                      problem.
 14                                  MR. KRISTAL:             We just need a
 15                      clear ruling, so that moving forward
 16                      we don't have to keep calling you.
 17                                  JUDGE FREEDMAN:                 I think I
 18                      have made a clear ruling, Mr. Kristal.
 19                                  MR. KRISTAL:             So, an attorney
 20                      can instruct the witness not to answer
 21                      a question based on a form objection?
 22                                  JUDGE FREEDMAN:                 Yes.
 23                                  MR. KRISTAL:             Okay.
 24                                  JUDGE FREEDMAN:                 That is what
 25                      it says.
                                 Draft Copy
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August 1, 2006                                                                 ROUGH DRAFT


                                                                                   Page 113

   1                                 MR. KRISTAL:           We just needed a
   2                   ruling, Your Honor.
   3                                 JUDGE FREEDMAN:              Right.
   4                                 MR. KRISTAL:           I am not arguing
   5                   with you.
   6                                 (Conference call with Judge
   7                   Freedman and counsel ended.)
   8                                 Off the record.
   9                                 (Pause in proceedings).
 10                                   (The witness entered the
 11                    room.)
 12                    Q.            When an epidemiological study is
 13       designed, is power a consideration in the design?
 14                    A.            Power is a consideration.
 15                    Q.            And what do you mean by power?
 16                    A.            Power is the ability to detect a
 17       difference, a statistical difference.
 18                    Q.            What was the power to detect a
 19       statistical difference between the people who had various
 20       job titles ranging from mechanics to garage workers in
 21       the studies that you site in your report to detect the
 22       statistical difference between those folks and the
 23       controls for mesothelioma?
 24                    A.            I would have to look at the studies.
 25                    Q.
                                 Draft Copy
                                     Okay.


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                       Page 114

   1                                 We will do that in a while.
   2                                 Are you saying that the power to detect
   3      a statistical difference is in the studies?
   4                   A.            It may be.         Most of the time it is not.
   5                   Q.            Do you know if any of the studies that
   6      you site in your report were powered to detect a
   7      statistical significant difference in the rates of
   8      mesothelioma between the exposed population and the
   9      controls?
 10                    A.            It depends on what you mean by power.              I
 11       mean, you know, can you detect.                       Generally, when you set
 12       up a study you say, well, it has the power to detect this
 13       much difference and that much difference.                      So, you had to
 14       know beforehand about how much power you might have.
 15                    Q.            If it is not powered to detect a
 16       difference lower than the one for which you have powered
 17       it, you won't pick up a difference even if one exists.
 18       Is that correct?
 19                    A.            Would you please repeat it?
 20                    Q.            Sure.
 21                                  MR. KRISTAL:           Please read it
 22                    back.
 23                          (The last question was read back.)
 24                    A.            Could you maybe make your questions a
 25       little simpler?
                                 Draft Copy
                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                               Herman Gibb
August 1, 2006                                                                 ROUGH DRAFT


                                                                                   Page 115

   1                   Q.            Sure.
   2                   A.            Thank you.
   3                   Q.            If you power a study to detect a
   4      relative risk of three -- are you with me so far?
   5                   A.            Right.
   6                   Q.            If the relative risk, the true relative
   7      risk, is less than three, you are not going to pick that
   8      up statistically significantly, right?
   9                   A.            You wouldn't pick it up significantly.
 10       You might see an elevated risk.
 11                    Q.            And in the situation where I just said,
 12       if you powered the study to detect a relative risk of
 13       three, there might be a statistically significant
 14       relative risk lower than three, but greater than 1 that
 15       you would not detect, correct?
 16                    A.            Maybe relative risk lower than three,
 17       but greater than one is not statistically significant.
 18                                  Is that your question.
 19                    Q.            No.      My question is, there may be a
 20       relative risk less than three greater than one that is
 21       statistically significant that you may not pick up
 22       because you powered your study to detect a relative risk
 23       of three?
 24                    A.            That is possible, yeah.
 25                    Q.
                                 Draft Copy
                                     Would you agree that a key element of an


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                               Herman Gibb
August 1, 2006                                                                 ROUGH DRAFT


                                                                                   Page 116

   1      epidemiological study is to adequately characterize the
   2      exposure?
   3                    A.           You would try and characterize the
   4      exposure as best as you can, yes.
   5                    Q.           Is that a key element of an
   6      epidemiological study?
   7                                 MR. LERNER:          What does key
   8                    element mean?
   9                    Q.           Well, are there certain elements to
 10       epidemiological studies?
 11                     A.           Well, obviously, if you are looking
 12       at -- if you are presuming that something is associated
 13       with an increased risk of something or other, then, of
 14       course, you would have to look at exposure in some
 15       fashion whether it be just an occupational category or
 16       whether it was, you know, something else.                    But, I mean,
 17       it is -- you can't do the study -- you can't test an
 18       hypothesis without assuming something is believed to be
 19       related to something, so you obviously have some element
 20       of exposure there.
 21                     Q.           And the better the characterization of
 22       the exposure the more you could rely on that
 23       epidemiological study.              Is that fair to say?
 24                     A.           The more information you have, of
 25
                                 Draft Copy
          course, that is helpful.


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                         Herman Gibb
August 1, 2006                                                                           ROUGH DRAFT


                                                                                               Page 117

   1                   Q.            Do you agree that mesothelioma is an
   2      uncommon tumor?
   3                   A.            It is an uncommon disease.
   4                   Q.            Well, is mesothelioma a tumor?
   5                   A.            It certainly is cancer.                   It's a tumor.
   6                   Q.            So, is mesothelioma an uncommon tumor?
   7                   A.            Yes.
   8                   Q.            Where does a mesothelioma arise?
   9                   A.            In the pleura which is the lining
 10       surrounding the lungs if it is pleural mesothelioma.
 11                    Q.            Is there more than one pleura
 12       surrounding the lungs?
 13                                  MR. LYNCH:         I am just going to
 14                    object to these questions.                      These
 15                    questions are directed to a medical
 16                    doctor.
 17                    Q.            You can answer.
 18                    A.            The pleura is the lining surrounding the
 19       lung.
 20                    Q.            Is it a single lining, double lining,
 21       triple lining, do you know one way or the other?
 22                    A.            I will defer to a medical doctor in that
 23       regard.
 24                    Q.            Have you heard the term in epidemiology
 25       target organ?
                                 Draft Copy
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D'Ulisse v. Asbestos - ROUGH DRAFT                                           Herman Gibb
August 1, 2006                                                             ROUGH DRAFT


                                                                               Page 118

   1                   A.            No.
   2                   Q.            Have you ever heard the term target
   3      organ with respect to cancer?
   4                   A.            I have heard the term target organ.
   5                   Q.            What is your understanding of the term
   6      target organ in cancer research?
   7                   A.            I don't think you look at target organ
   8      in cancer research.               Target organ is something that's
   9      been associated with -- at least in my experience, it is
 10       something that you look at with regard to health risk
 11       assessment.           It is not -- you know, target organ in
 12       regard to epidemiology I have never heard that
 13       expression.
 14                    Q.            What does target organ mean in risk
 15       assessment?
 16                    A.            It would be the primary site where an
 17       effect occurs.
 18                    Q.            Okay.
 19                                  Does a carcinogen have to reach a target
 20       organ, as you just defined it, in order to cause cancer?
 21                    A.            If it is the target organ, then, that is
 22       where the primary tumor is arising and I would expect
 23       that it would have to get to the target organ.
 24                    Q.            Are case reports particularly valuable
 25
                                 Draft Copy
          for identifying unique features such as an association


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                          Page 119

   1      with an uncommon tumor.
   2                   A.            Case reports I think are used to
   3      generate hypotheses, but they wouldn't be used to make a
   4      causal determination --
   5                   Q.            Well, are case --
   6                   A.            --causal association.
   7                   Q.            What about a non-causal association, can
   8      case reports be valuable in making a non-causal
   9      association?
 10                    A.            No.
 11                    Q.            Are case reports valuable in identifying
 12       an association with a non-common tumor?
 13                    A.            No.      Because it is not -- it's a case
 14       report.        So, somebody -- a physician says I have a case.
 15       The case was exposed to this.                        I think maybe the
 16       individual could have developed disease.                        But, you can't
 17       compare to a control, for example, so it has -- it may be
 18       helpful in identifying potential hypotheses.                        The study
 19       as such they don't lend any evidence to the evaluation.
 20                    Q.            When cancer effects are not found in
 21       epidemiological studies in an exposed human population,
 22       is that information itself sufficient to conclude that
 23       the agent poses no carcinogenic hazard?
 24                    A.            You know, here I think you are combining
 25
                                 Draft Copy
          terms that help risk assessment would use versus one that


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                       Page 120

   1      an epidemiologist would use in determining causal
   2      association.
   3                   Q.            Risk assessors determine causal
   4      association different than epidemiologists?
   5                   A.            Risk assessors are generally working in
   6      the context of, for example, public health agencies such
   7      as Environmental Protection Agency, and so they set
   8      regulations and, therefore, they do dose response
   9      estimates.          Whether that means any disease occurs as a
 10       result of that exposure, I don't know.                       We just know that
 11       they set regulations and to do that they try and be as
 12       informed at possible, so they use dose response
 13       information and so forth.
 14                    Q.            My question is, whether a causal
 15       determination is different if you are a risk assessor
 16       from making a causal determination if you are an
 17       epidemiologist?
 18                    A.            The causal association to the
 19       epidemiologist it says that I believe that risk is
 20       associated with this disease.                     Your question earlier was
 21       something about is there evidence of cancer and -- I
 22       don't know.           Maybe we should go back and read the
 23       question.
 24                    Q.            Okay.
 25
                                 Draft Copy
                                     When cancer effects are not found in


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August 1, 2006                                                               ROUGH DRAFT


                                                                                 Page 121

   1      epidemiological studies in an exposed human population,
   2      does that in itself mean that the agent is not
   3      carcinogenic?
   4                                 MR. LERNER:           It's been asked
   5                    and answered about three minutes ago,
   6                    I think.
   7                                 MR. KRISTAL:            The witness
   8                    asked me to go back to the question
   9                    which is why I went back to the
 10                     question?
 11                                  MR. LERNER:           No, no, no.
 12                                  He didn't ask to start the
 13                     deposition again.            It was asked and
 14                     answered already.
 15                                  MR. KRISTAL:            Are you
 16                     instructing him not to answer the
 17                     question?
 18                                  MR. KRISTAL:            Yes.     He's
 19                     answered it already.               You have your
 20                     answer.
 21                     Q.           When a risk assessor -- strike that.
 22                                  Do risk assessors make causal
 23       determinations?
 24                     A.           They make an evaluation of an
 25       association.
                                 Draft Copy
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August 1, 2006                                                             ROUGH DRAFT


                                                                               Page 122

   1                   Q.            I am asking about an evaluation of
   2      association.
   3                                 Do risk assessors make determinations
   4      that an exposure causes a certain disease?
   5                   A.            Risk assessors would use an
   6      epidemiologist to evaluate the data for causality, and so
   7      in that sense they make a determination of causal
   8      association.
   9                   Q.            Based on the totality of the factors
 10       that you discussed earlier that an epidemiologist would
 11       use?
 12                    A.            At least for epidemiology studies, yes.
 13                    Q.            Do toxicologists make causation
 14       determinations?
 15                    A.            I think the jargon here is getting a
 16       little bit -- what the -- the toxicologist would evaluate
 17       toxicologic data and make some evaluation as to what the
 18       toxicology data means.               They generally do not use the
 19       term causal association in regard to an evaluation of
 20       toxicologic studies.             That is reserved essentially for
 21       the epidemiologist.
 22                    Q.            Is there any scientific or medical
 23       discipline that makes determinations of causation other
 24       than epidemiologists?
 25                    A.
                                 Draft Copy
                                     Well.


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August 1, 2006                                                                  ROUGH DRAFT


                                                                                    Page 123

   1                                 MR. LERNER:          Note my objection
   2                    to the form of that question.
   3                                 You can answer.              Note my
   4                    objection to the form of that
   5                    question.      I mean, can a doctor
   6                    determine what causes an infection.                 I
   7                    mean, that is a little bit of a broad
   8                    question, isn't it?
   9                                 As a matter of fact, in that
 10                     form please don't answer the question.
 11                     Q.           Did you say earlier that risk assessors
 12       who promulgate regulations do so without making
 13       determinations as to whether the substance that they are
 14       regulating causes a disease?
 15                     A.           No.   I didn't say that.
 16                     Q.           Are regulations based on determinations
 17       that an exposure causes a disease?
 18                                  MR. LERNER:          Again, I am going
 19                     to object.
 20                                  How is that within the scope
 21                     of his expertise?
 22                                  MR. KRISTAL:           He has been
 23                     doing risk assessment all his life.
 24                     We are going to get into his CV.
 25                     Q.
                                 Draft Copy
                                     Have you been doing risk assessment


                                       Priority One Court Reporting
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August 1, 2006                                                                         ROUGH DRAFT


                                                                                           Page 124

   1      throughout your career?
   2                   A.            I've done risk assessment, yes.
   3                   Q.            Have you been doing risk assessment for
   4      purposes of regulatory purposes?
   5                   A.            For regulatory purpose, yes.
   6                   Q.            Okay.
   7                                 My question is, are regulations
   8      promulgated based on determinations of disease causation?
   9                   A.            The direct answer to that is, no.                 But,
 10       let me explain that.              The regulation does not -- if you
 11       set a level -- one thing that -- a regulation is not
 12       based solely on the risk assessment.                         The regulation also
 13       depends on the cost of the regulation.                        You are going to
 14       measure it.           You know, there is a variety of factors that
 15       go into the regulation, only part of which is the health
 16       risk assessment, okay.
 17                                  Now.    When a regulation is set, it is
 18       intended to be protective of the public health.                        So,
 19       setting a regulation at a certain level does not mean
 20       that exposures above that level are going to be
 21       associated with disease.
 22                    Q.            Does it mean that exposures below that
 23       level won't be associated with a disease?
 24                    A.            Generally, it means exposures below.
 25
                                 Draft Copy
          But, nobody is going to tell you that exposures above


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August 1, 2006                                                                   ROUGH DRAFT


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   1      that level are going to be associated with disease.
   2      Again, as I said, they intend to be public health
   3      protective and so they are set at a level low enough that
   4      below that level fairly certain wouldn't have exposure.
   5      But, above that level, the regulatory agency cannot tell
   6      you that disease is going to occur.
   7                   Q.            When OSHA sets a standard for asbestos,
   8      are you saying that OSHA is making a determination that
   9      below that standard there is no risk of disease?
 10                    A.            I didn't work for OSHA.           I worked for
 11       the EPA.         But, you know, the OSHA regulation, it is a
 12       little different.            Well, the OSHA regulation presumably
 13       the risk, you know, there wouldn't be a risk below the
 14       exposure level.
 15                    Q.            What are you basing that on?
 16                    A.            Well, again, I didn't work for OSHA, so
 17       I am not exactly sure how their regulations are set.                     At
 18       least, in an EPA context that is the way it would be
 19       done.
 20                    Q.            I am not asking about EPA.
 21                    A.            But, I am telling you I worked for EPA,
 22       and I don't know how the OSHA bases its regulations.                     My
 23       assumption would be below that but, again, I didn't work
 24       for OSHA and, you know, I worked for EPA, and I can tell
 25       you what EPA did.
                                 Draft Copy
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D'Ulisse v. Asbestos - ROUGH DRAFT                                                       Herman Gibb
August 1, 2006                                                                         ROUGH DRAFT


                                                                                           Page 126

   1                   Q.            And you haven't read the OSHA
   2      regulations on asbestos?
   3                                 MR. LERNER:             Asked and
   4                   answered.
   5                   Q.            Do you recall what the OSHA regulation
   6      for asbestos is?
   7                                 MR. LERNER:             Again, its been
   8                   asked and answered.                 You asked it at
   9                   the very beginning.
 10                    Q.            Do you know what the OSHA regulation for
 11       asbestos is?
 12                                  MR. LERNER:             Again, I could
 13                    object as many times as you can repeat
 14                    the question.            You have already --
 15                                  MR. KRISTAL:              You can tell him
 16                    either you are instructing him not to
 17                    answer or you aren't?
 18                                  MR. LERNER:             Okay.        If that is
 19                    what you want, he is not going to
 20                    answer it again.              That's the problem.
 21                    Q.            Do you have an opinion as to what
 22       ambient levels of asbestos is in an urban environment?
 23                    A.            No.
 24                    Q.            Do you know how many orders of magnitude
 25
                                 Draft Copy
          less than the OSHA standard for asbestos ambient air in


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D'Ulisse v. Asbestos - ROUGH DRAFT                                        Herman Gibb
August 1, 2006                                                          ROUGH DRAFT


                                                                            Page 127

   1      an urban environment is?
   2                    A.           No.
   3                    Q.           Do you have any opinions as to what the
   4      exposure levels of brake mechanics from
   5      asbestos-containing brakes at any period of time was?
   6                    A.           No.
   7                    Q.           Do you have an opinion as to whether or
   8      not automobile brake mechanics are likely to be exposed
   9      to asbestos at levels much higher than the ambient
 10       levels?
 11                     A.           No.
 12                     Q.           Do you have an opinion as to whether or
 13       not mesothelioma can occur after relatively brief
 14       occupational exposures to asbestos?
 15                     A.           It depends on what kind of asbestos it
 16       is.
 17                     Q.           What do you mean by that?
 18                     A.           I think in certain occupations there
 19       could be.          It also depends on what your definition of
 20       brief is.          Is your definition of brief one day, one
 21       hour or --
 22                     Q.           Well --
 23                     A.           -- two years.
 24                     Q.           -- what is the lowest exposure that you
 25
                                 Draft Copy
          were of the opinion causes mesothelioma in terms of


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                        Herman Gibb
August 1, 2006                                                                          ROUGH DRAFT


                                                                                             Page 128

   1      time-weighted averages, fiber years of exposure, however
   2      you want to give me a measurement?                           Do you have an
   3      opinion?
   4                   A.            I can't give you a measurement with
   5      regard to fiber years.               Frankly, I can't even give you
   6      measurement in regard to duration of exposure.                           I think
   7      that, you know, duration is going to be -- I think
   8      duration can vary.
   9                   Q.            If an individual was exposed only to
 10       chrysotile asbestos who developed mesothelioma within the
 11       appropriate latency period for mesothelioma, is it your
 12       opinion that the exposure to the chrysotile contribute to
 13       the mesothelioma?
 14                                  MR. LYNCH:         Objection to the
 15                    form.
 16                    A.            Can you ask that question one more time?
 17                                  MR. LERNER:          Would you repeat
 18                    the question?
 19                    Q.            Sure.
 20                                  If a person had exposure only to
 21       chrysotile asbestos and then developed mesothelioma after
 22       an appropriate latency period, would it be your opinion
 23       that that exposure to the chrysotile asbestos contributed
 24       to the development of that person's mesothelioma?
 25
                                 Draft Copy
                                     MR. LERNER:          Mr. Kristal, I


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August 1, 2006                                                                ROUGH DRAFT


                                                                                  Page 129

   1                   suggest you asking a question like
   2                   that is unfair.           You have to say what
   3                   type of chrysotile and what
   4                   circumstances, so I think it is
   5                   inappropriate, and I am directing him
   6                   not to answer in that form.
   7                   Q.            What types of chrysotile are there?
   8                   A.            What types of chrysotile?
   9                   Q.            Yes.    Mr. Lerner just said we would have
 10       to say what types of chrysotile in my question.                  I am
 11       asking you what types of chrysotile?
 12                                  MR. LERNER:          Well, maybe my
 13                    choice of the word type is not as
 14                    precise as I meant it to be.
 15                                  But, Mr. Kristal suggests you
 16                    know what I am talking about.
 17                    Q.            Can you answer the question the way I
 18       asked it?
 19                    A.            What is the -- I guess I have to seek
 20       some clarification or am I directed not to answer the
 21       question?
 22                    Q.            My current question is, when I asked the
 23       question if a person was exposed exclusively to
 24       chrysotile asbestos and after an appropriate latency
 25
                                 Draft Copy
          period developed mesothelioma, would you say that that


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                     Page 130

   1      person's exposure to the chrysotile contributed to the
   2      mesothelioma.              My question to you is, can you answer that
   3      question?
   4                   A.             First, what do you mean by proper
   5      latency?          I don't understand proper latency.
   6                   Q.             Well, what is the minimum latency
   7      between exposure and the development of mesothelioma in
   8      your opinion?
   9                   A.             I think it depends on the amount of
 10       exposure.          Latency is a function of exposure, so you
 11       could have a shorter latency period with a higher
 12       intensity of exposure, but I don't know that, you know,
 13       we can definitely say that there is a -- you know,
 14       exactly what the latency period is or the median latency
 15       period is.          It is going to depend on a variety of
 16       factors.
 17                    Q.             So, you have --
 18                    A.             But, then, in response to the question
 19       you are asking if somebody developed, I mean, I would
 20       have to see what other kinds of -- what kind of
 21       occupational exposure that individual had.                     There's a lot
 22       of questions that you would have to ask before you could
 23       draw a conclusion on somebody who had chrysotile exposure
 24       and developed cancer at a later date and developed it as
 25       a result of chrysotile.
                                 Draft Copy        So, there's a lot of other


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                       Herman Gibb
August 1, 2006                                                                         ROUGH DRAFT


                                                                                           Page 131

   1      questions you have to ask?
   2                   Q.            In my hypothetical, if it wasn't clear,
   3      there are no other exposures to asbestos?
   4                   A.            No other exposures.                 My answer to that,
   5      then, if there were no other exposures, you are assuming
   6      there is no other exposures than the chrysotile exposure,
   7      and you think that an adequate period of time has passed
   8      between the time of exposure and the time of the
   9      development of the tumor, I would -- I think that there
 10       may be other reasons for the development of the tumor.
 11       It also depends on what you know, again, this goes to the
 12       type of chrysotile exposure it is.                           Are we talking about
 13       chrysotile from a textile plant.                        Are we talking about
 14       chrysotile that a brake worker may have been exposed to.
 15       A brake worker could have had chrysotile exposure, but,
 16       you know, that could be very different than another type
 17       of chrysotile exposure, you know, in a different
 18       occupational setting.              So, it depends a lot on, you know,
 19       what kind of occupational setting we are talking about.
 20                    Q.            In what occupational setting would an
 21       exposure to chrysotile solely lead you to be of the
 22       opinion that it contributed to the development of
 23       someone's mesothelioma if they got mesothelioma?
 24                    A.            In what type -- please repeat the
 25       question.
                                 Draft Copy
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                                                                               Page 132

   1                   Q.            In what occupational setting where there
   2      was exposure just to chrysotile and a person developed
   3      mesothelioma would you be of the opinion that that
   4      exposure contributed to the mesothelioma?
   5                   A.            You know, I think you have to look at
   6      other -- at studies of that particular occupation, other
   7      studies done at the occupation, you know, and see what
   8      the totality of the evidence was before I would want to
   9      tell you that this particular occupation or that
 10       particular occupation would be associated with increased
 11       risk from chrysotile.              I can't tell you just off the top
 12       of my head without looking at information.
 13                    Q.            I guess what I am trying to find out is,
 14       if you would say I am of the opinion that I would never
 15       say that that chrysotile exposure alone contributed to
 16       the mesothelioma?
 17                    A.            I didn't say that.
 18                    Q.            Okay.
 19                                  So, there are instances where you might
 20       say that depending on the totality of the evidence?
 21                                  MR. LYNCH:         Objection to the
 22                    form of the question.
 23                    A.            If I looked -- again, I have to look at
 24       the information.           You are saying -- there are situations
 25       where I might say it.
                                 Draft Copy  I don't know that I would ever say


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                     Herman Gibb
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                                                                                         Page 133

   1      it.     I am not sure that I would ever say it.                   But --
   2                   Q.            As you sit here today, you don't know if
   3      you would or you wouldn't?
   4                                 MR. LERNER:          Please let him
   5                   finish what he was going to say.
   6                                 MR. KRISTAL:           Well, just so we
   7                   don't --
   8                                 MR. LERNER:          He said "but" and
   9                   he wanted to finish.               Then, you can
 10                    ask your next question.
 11                                  Please finish, Doctor.
 12                    A.            Again, I don't know that I would ever
 13       say it.        I have to look at the information.                You are
 14       putting sort of a hypothetical here that maybe you might
 15       say it.        I can't say that -- you know, I have to look at
 16       the information.            You know, if you are going to talk
 17       about brake mechanics, the chrysotile that brake
 18       mechanics might be exposed to, I would say, no.
 19                    Q.            So, regardless of the intensity, the
 20       duration, and the amount of the exposure that a brake
 21       mechanic had, if that was their only exposure to asbestos
 22       and then developed mesothelioma after an appropriate
 23       latency period, you would never say that that exposure
 24       contributed to their mesothelioma?
 25                    A.
                                 Draft Copy
                                     And you are saying -- well, in what


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                        Page 134

   1      circumstance?              Are you talking about the individual
   2      having no other exposure?
   3                   Q.              Yes.    No other exposures, zero other
   4      exposures.          Worked as a brake mechanic as an intense
   5      exposure as you can imagine for 20 years, every hour of
   6      the working day grinding on asbestos-containing brakes,
   7      no respiratory protection, covered with dust at the end
   8      of the day, and after 30 years developing mesothelioma
   9      with no other asbestos exposure, you would be of the
 10       opinion that that exposure did not contribute to the
 11       mesothelioma?
 12                    A.             I would be of the opinion that all of
 13       the data that I have to date does not show that the
 14       occupation of being a brake mechanic is associated with
 15       the mesothelioma.             There have been other suggested causes
 16       for mesothelioma besides asbestos other than asbestos,
 17       and it is possible that an individual could have gotten
 18       it from there.             But, the information that I have with
 19       respect to brake mechanics suggests to me that the
 20       occupational exposure did not cause the mesothelioma.
 21                    Q.             What other suggestive causes are you
 22       talking about?
 23                    A.             Well, in a couple of the papers they
 24       mention, for example, radiation, I think was one, and
 25
                                 Draft Copy
          there's other types of causes.                        The papers are referenced


                                          Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                        Page 135

   1      in my report.              I think Pelnar was one.
   2                   Q.              Is it fair to say, as you sit here
   3      today, you do not have an opinion -- strike that.
   4                                   Do you have an opinion as to whether or
   5      not whatever these other suggested causes of mesothelioma
   6      are that they are in fact casually associated with
   7      mesothelioma?
   8                                   MR. LYNCH:         Objection to the
   9                   form of the question.                  It's beyond the
 10                    scope of this case.
 11                    Q.             Well, if you have no opinion on that
 12       subject, fine.
 13                                   MR. LYNCH:          Why even ask it?
 14                    It has nothing to do with it?
 15                                   MR. KRISTAL:            Because I want
 16                    to make sure I don't get surprised
 17                    with it at trial.
 18                                   MR. LERNER:           May I hear the
 19                    question again, please?
 20                                   (The last question was read
 21                    back.)
 22                    A.             I don't know that they are casually
 23       associated, but I know in some cases the etiology of the
 24       disease is an unknown.                 There has been speculation of
 25
                                 Draft Copy
          other potential causes of mesothelioma.                        But, what we can


                                          Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                           Herman Gibb
August 1, 2006                                                                             ROUGH DRAFT


                                                                                               Page 136

   1      say is that in a certain percentage of cases the etiology
   2      is unknown.
   3                   Q.            Etiology is being used by you
   4      synonymously with cause?
   5                   A.            With cause.
   6                                 MR. LYNCH:            Are we going to
   7                   take a lunch break?                 Is this a good
   8                   time maybe for the benefit of the
   9                   court reporter?
 10                                  MR. KRISTAL:              Sure.      We have
 11                    had so many breaks now.                     If you need
 12                    to take a break, sure.
 13                                  (Lunch recess.)
 14                                  (Plaintiff's Exhibit 1 was
 15                    marked for identification.)
 16                    Q.            Let me hand you Exhibit 1.                  It is a
 17       Notice of Deposition, although we referred here to you as
 18       Henry Gibb, and I apologize.
 19                                  Have you ever seen that before?
 20                    A.            No.
 21                    Q.            You have never seen that before?
 22                    A.            No.      I have not.
 23                    Q.            I see there's documents on the table.
 24                                  Did you bring those documents with you?
 25                    A.
                                 Draft Copy
                                     No.      These are -- no.              I did not.


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August 1, 2006                                                                        ROUGH DRAFT


                                                                                          Page 137

   1                    Q.             Can you tell me -- there seem to be two
   2      stacks.        Can you tell me what they are?
   3                                   MR. LERNER:          Well, I brought
   4                    them in.
   5                                   MR. KRISTAL:           What are they?
   6                    I would like to mark them as a group
   7                    as Exhibit 2 perhaps.
   8                                   MR. LERNER:          All there was.        I
   9                    was going to give you a copy of all
 10                     the articles.         That's all the
 11                     articles, the epidemiology studies.
 12                     There is one for me.                There's one if
 13                     you want to mark them.                  It is the same
 14                     thing, identical.             And just so it is
 15                     clear, I believe he did bring them as
 16                     well.        But, we had them produced in
 17                     any event.
 18                                    MR. KRISTAL:           Okay.     I would
 19                     like his copies.
 20                     Q.             Did you bring your copies?
 21                     A.             Yes.
 22                                    MR. LERNER:          Are they in my office?
 23                                    THE WITNESS:           Yes.
 24                                    MR. LERNER:          Are they in
 25                     that --
                                 Draft Copy
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August 1, 2006                                                                    ROUGH DRAFT


                                                                                      Page 138

   1                                 THE WITNESS:           They are in --
   2                                 MR. LERNER:          Do you want me to
   3                   get it.
   4                                 THE WITNESS:           Yes.
   5                                 MR. KRISTAL:           If there are
   6                   other materials that he reviewed and
   7                   relied on, I would like to see them as
   8                   well.
   9                                 (The witness and counsel left
 10                    the room.)
 11                                  (Pause in proceedings.)
 12                                  (The witness and counsel
 13                    entered the room.)
 14                    Q.            While I am looking at these documents,
 15       let me ask a question.
 16                                  Latency period is related to intensity
 17       of exposure to mesothelioma.                    Is that your opinion?
 18                    A.            I think it could be.              I am not
 19       absolutely sure.           It could be, but I think that latency
 20       can be related to intensity exposure.
 21                    Q.            What do you mean by the term could be?
 22       You don't have an opinion as to whether it does or it
 23       doesn't?
 24                    A.            I don't have an opinion that asbestos
 25
                                 Draft Copy
          intensity exposure is necessarily related to latency, but


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                Herman Gibb
August 1, 2006                                                                  ROUGH DRAFT


                                                                                    Page 139

   1      I think in other situations where there are carcinogenic
   2      exposure it may be related.
   3                    Q.           All right.
   4                                 In front of me is a stack of materials.
   5                                 MR. KRISTAL:           Phil, is this an
   6                    exact copy of that.
   7                                 MR. LERNER:          I don't believe
   8                    EBT transcripts are here.
   9                                 My understanding of this,
 10                     which was put in my office before, is
 11                     there's two copies of the articles and
 12                     copy of his report.             I believe that is
 13                     the entirety of what is here.                 One was
 14                     for me to use and one was for you to
 15                     mark if you wanted to.
 16                                  MR. KRISTAL:           If you could
 17                     hand one stack to Adam to look at and
 18                     if they are comparable then we don't
 19                     need to.
 20                     Q.           Is it correct, Doctor, there no
 21       markings, or notations, or highlighting on any of your
 22       set of articles and documents?                      Is that right?
 23                     A.           I don't know that there are.
 24                     Q.           We will check that as well while we are
 25       making that comparison?
                                 Draft Copy
                                       Priority One Court Reporting
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August 1, 2006                                                                      ROUGH DRAFT


                                                                                         Page 140

   1                   A.            It is possible.
   2                   Q.            Did you bring any other documents other
   3      than the documents that we are now checking with the
   4      stack that Mr. learner brought in that we have not yet
   5      marked?
   6                   A.            No.
   7                   Q.            Are you relying on any other documents
   8      or material for any opinion in your report that isn't
   9      reflected in your stack of documents that we are going to
 10       mark in a minute?
 11                    A.            No.
 12                    Q.            Have you ever been deposed in an
 13       asbestos case before?
 14                    A.            No.
 15                    Q.            Have you ever been deposed before?
 16                    A.            Yes.
 17                    Q.            How many times?
 18                    A.            Deposition, twice.
 19                    Q.            Twice before today?
 20                    A.            Twice before today.
 21                    Q.            What is the time frame that those
 22       depositions took place?
 23                                  When was the first one?              When was the
 24       last one?
 25                    A.
                                 Draft Copy
                                     I believe the first was in 2005, and the


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August 1, 2006                                                                             ROUGH DRAFT


                                                                                                   Page 141

   1      second was in about March of this year, I believe.
   2                   Q.            What were the -- strike that.
   3                                 Did they involve substances?
   4                   A.            Yes.
   5                   Q.            What were the substances involved?
   6                   A.            In the first case, it was chromium.                       In
   7      the second case, it was arsenic.
   8                   Q.            Were you testifying pursuant to work
   9      that you had done for Sciences?
 10                    A.            Pursuant -- I am sorry.                     Pursuant to
 11       work while I was at Sciences or -- I am not sure what you
 12       mean.
 13                    Q.            Were these litigation depositions, I am
 14       assuming?
 15                    A.            Litigation depositions.
 16                    Q.            You had been retained by which side?
 17                    A.            It was the defense in both of those two
 18       cases.
 19                    Q.            Were you retained in your capacity as an
 20       employee of Sciences or were you retained in some other
 21       capacity?
 22                    A.            No.      I was an employee of Sciences.                   I
 23       also gave testimony in a hearing.                               It wasn't a
 24       deposition, but it was a hearing.
 25                    Q.
                                 Draft Copy
                                     That was the OSHA hearing in 2005?


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August 1, 2006                                                                        ROUGH DRAFT


                                                                                          Page 142

   1                   A.            No.      It was a hearing of Vivendi versus
   2      Argentina.
   3                   Q.            Relating to what?
   4                   A.            Potential health effects of manganese.
   5                   Q.            And what type of hearing was this?
   6                   A.            It was an international tribunal.
   7                   Q.            Manganese from welding fumes?
   8                   A.            No.      Manganese that was in drinking
   9      water.
 10                    Q.            When was that testimony?
 11                    A.            Last Friday.
 12                    Q.            By whom were you retained in that
 13       capacity?
 14                    A.            By Vivendi.
 15                    Q.            Vivendi is what, a person?
 16                    A.            Vivendi is a company.                It's a French
 17       company.
 18                    Q.            Was your testimony that manganese in the
 19       water increased or didn't increase a certain disease?
 20                    A.            Manganese drinking water is not
 21       associated with disease.
 22                    Q.            That was the substance of your opinion
 23       in that case?
 24                    A.            That's right.
 25                    Q.
                                 Draft Copy
                                     And arsenic, was it your opinion in that


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                                                                              Page 143

   1      case, whatever alleged exposure there was to arsenic
   2      didn't contribute to that person's inquiry?
   3                   A.            That's correct.
   4                   Q.            And the same thing with chromium?
   5                   A.            That's correct.
   6                   Q.            I have marked as Exhibit 2, a copy of
   7      your report in this case which is dated July 12, I
   8      believe, 2006.
   9                                 (Plaintiffs' Exhibit 2 was
 10                    marked for identification.)
 11                    Q.            If you can tell me if Exhibit 2 is in
 12       fact a copy of your report.
 13                    A.            Yes.       That is correct.
 14                    Q.            Did you exclusively write this report or
 15       did someone assist you in writing it?
 16                    A.            No.      I exclusively wrote it.
 17                    Q.            Nobody at your company Sciences helped
 18       you write it?
 19                    A.            No.
 20                    Q.            Did anyone at Sciences do any work with
 21       respect to this case?
 22                    A.            No, other than me.
 23                    Q.            Right.
 24                                  When you are retained to do work on a
 25
                                 Draft Copy
          particular case, is there a record that you make of


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August 1, 2006                                                                            ROUGH DRAFT


                                                                                              Page 144

   1      contacts with whomever it is that is retaining you?
   2                   A.            A record of contacts that what?
   3                   Q.            You bill for your time, right?
   4                   A.            That's correct.
   5                   Q.            How much do you bill?                 What is your
   6      hourly rate?
   7                   A.            On these, I believe, it is $375 an hour.
   8                   Q.            For whatever work that you are doing?
   9                   A.            That's correct.
 10                    Q.            Do you bill for travel time?
 11                    A.            I would bill for travel time, yes.
 12                    Q.            At your hourly rate?
 13                    A.            You know, this is frankly the first time
 14       I have ever had to travel with regard to an asbestos
 15       case, so I haven't sorted that out.                          I presume it is at
 16       the hourly rate, but I don't know.                           I can't give you a
 17       good answer on that.
 18                    Q.            Who keeps track of what case you are
 19       working on and how much time you are working on what
 20       dates?
 21                    A.            I do.
 22                    Q.            So, at some point in time, you got a
 23       call from somebody retaining you on this case?
 24                    A.            That is correct.
 25                    Q.
                                 Draft Copy
                                     And did you record that?


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August 1, 2006                                                             ROUGH DRAFT


                                                                               Page 145

   1                   A.            I did.
   2                   Q.            Do you have those documents with you?
   3                   A.            I don't have documents from when I was
   4      retained, no.
   5                   Q.            You said that you record somewhere when
   6      somebody calls and retains you, and you did that in this
   7      case.       Is that correct?
   8                   A.            That is correct.
   9                   Q.            Where do you record it?
 10                    A.            I just keep a file.
 11                    Q.            Do you have a file that is entitled
 12       Alfred D'ulisse or something similar to that if that is
 13       not the exact title?
 14                    A.            The only file -- are you talking about a
 15       file in a cabinet or something?
 16                    Q.            No.
 17                                  You said that you recorded when somebody
 18       first contacted you in this case and it is in a file.
 19                    A.            Right.
 20                    Q.            Did you bring that file, whatever it is,
 21       with you?
 22                    A.            No, I didn't.
 23                    Q.            Where is that file maintained?
 24                    A.            I keep it at Sciences, but the file only
 25
                                 Draft Copy
          indicates when I was retained and when the court report


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                  Herman Gibb
August 1, 2006                                                                    ROUGH DRAFT


                                                                                      Page 146

   1      was due, when the trial was expected.                       It is very simple
   2      information.
   3                    Q.           Do you record any other information
   4      other than what you just said?
   5                                 In other words, if you meet with the
   6      attorneys, do you have a record of that?
   7                    A.           No.
   8                    Q.           How do you bill for that?
   9                    A.           That I met with attorneys?
 10                     Q.           Yes.
 11                     A.           If I met with attorneys, then I would
 12       have billed for it.
 13                     Q.           When and if you meet with attorneys, do
 14       you record that somewhere?
 15                     A.           It would be recorded in just the time
 16       sheets.
 17                     Q.           Okay.
 18                                  So, there is something called a time
 19       sheet, which is a hard piece of paper?
 20                     A.           That's correct.
 21                     Q.           And you fill that out every time you do
 22       work on this case?
 23                     A.           That is correct.
 24                     Q.           And you did that in this case.
 25                     A.
                                 Draft Copy
                                     That is correct.


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August 1, 2006                                                                       ROUGH DRAFT


                                                                                         Page 147

   1                   Q.            Other than that, what else, if anything,
   2      is in the file that you are talking about?
   3                   A.            That is it really.
   4                   Q.            Are there notes of what was discussed at
   5      any time, or impressions that you had or anything other
   6      than simply a time sheet with hours?
   7                   A.            No.
   8                   Q.            So, the folder consists of one piece of
   9      paper?
 10                    A.            Essentially, yeah.
 11                    Q.            When you say "essentially," what is the
 12       folder in this case?
 13                    A.            Actually, it is not a folder.              It is
 14       only just that I have recorded when I was asked to do the
 15       case, and when the court report is due, when the trial is
 16       expected to happen, that sort of thing.                         You know, there
 17       is no other information recorded.
 18                    Q.            When were you first contacted in this
 19       case?
 20                    A.            I don't recall.
 21                    Q.            When were you told the report was due?
 22                    A.            Let's see, I tried to get the report
 23       done by the second week in July, as I recall.
 24                    Q.            Were you trying to do that because you
 25
                                 Draft Copy
          were told that is when the report is due?


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                       Page 148

   1                   A.            It was my understanding that the court
   2      report was due on the Friday of the second week of July
   3      of this year.
   4                   Q.            And where did you have that
   5      understanding from?
   6                   A.            I understood -- I contacted the attorney
   7      here and said when is the report due.                           And my
   8      understanding was it was due the second Friday of July.
   9                   Q.            Who was that attorney you spoke to here?
 10                    A.            Justin Kasmir.
 11                    Q.            Justin Kasmir the attorney that first
 12       contacted you in this case?
 13                    A.            No.      Actually, it was a law firm in
 14       Richmond.
 15                    Q.            What law firm?
 16                    A.            It was McGuire Woods.
 17                    Q.            Who did you speak to in that law firm?
 18                    A.            Actually, I was contacted by a paralegal
 19       and asked if I would be able to take the case.
 20                    Q.            How long before you had written a report
 21       were you contacted?
 22                    A.            I don't recall.
 23                    Q.            Well, are you talking a week, a month,
 24       six months, a year?
 25                    A.
                                 Draft Copy
                                     It might have been three weeks, a month,


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                Herman Gibb
August 1, 2006                                                                  ROUGH DRAFT


                                                                                    Page 149

   1      you know, something like that.
   2                   Q.            But, that first contact would be
   3      recorded in your time sheet?
   4                   A.            It would be -- I would have some record
   5      of when I was first contacted.
   6                                 MR. KRISTAL:           I request that
   7                   that record be produced.
   8                   Q.            What were you told in that first
   9      conversation?
 10                    A.            I was just asked if I would take the
 11       case.
 12                    Q.            Did they tell you what the case was
 13       about?
 14                    A.            I understood it was a mesothelioma case.
 15       I didn't have a lot of information beyond that.
 16                    Q.            How many other asbestos cases are you
 17       currently retained in?
 18                    A.            I would guess about two or three.
 19                    Q.            Do they all relate to brake work?
 20                    A.            All of them have some kind of brake
 21       exposure.
 22                    Q.            Was this case the first, second or third
 23       case that you were contacted?
 24                    A.            Of the three current?
 25                    Q.
                                 Draft Copy
                                     Yes.    Well, strike that.        That is a good


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                         Herman Gibb
August 1, 2006                                                                           ROUGH DRAFT


                                                                                             Page 150

   1      point.
   2                                   How many other brake cases have you been
   3      retained on other than the two or three that are active
   4      currently?
   5                   A.              I would guess -- I can't give you an
   6      exact number.              I would guess, perhaps, ten.
   7                   Q.              When was the first time you were
   8      contacted by any attorney representing any defendant in
   9      an asbestos litigation about possibly becoming a witness?
 10                    A.             The first time?
 11                    Q.             Yes.
 12                    A.             I can't give you an exact date.               My
 13       guess is probably a year ago, a year and a half ago,
 14       somewhere around there.
 15                    Q.             When did you leave the EPA for Sciences?
 16                    A.             January of 2004.
 17                    Q.             If I hear what you are saying, it was
 18       not in the year 2004 that you were first contacted?
 19                    A.             I don't believe so.                If it was, it was
 20       late 2004.
 21                    Q.             Who first contacted you, somebody at
 22       McGuire Woods in Richmond?
 23                    A.             Right.       Somebody from McGuire Woods.
 24                    Q.             Who was that?
 25                    A.
                                 Draft Copy
                                      Let's see, the name is Susan Davidson.


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D'Ulisse v. Asbestos - ROUGH DRAFT                                              Herman Gibb
August 1, 2006                                                                ROUGH DRAFT


                                                                                   Page 151

   1                   Q.            Who did Mrs. Davidson say she
   2      represented?
   3                   A.            McGuire Woods.
   4                   Q.            She was an attorney from McGuire Woods?
   5                   A.            No.      She's a paralegal.
   6                   Q.            What client did she say McGuire Woods
   7      represented?
   8                   A.            In this case, it would have been either
   9      Ford, General Motors, or Daimler Chrysler.
 10                    Q.            I am talking about the very first time
 11       that you were contacted about getting involved in
 12       asbestos litigation, sometime, I think you said, a year,
 13       a year and a half ago.                  If it was in 2004, it would be
 14       towards the end of 2004?
 15                    A.            Right.
 16                    Q.            It was Ms. Davidson who contacted you?
 17                    A.            Ms. Davidson was the first contact as I
 18       recall.
 19                    Q.            It was either Ford, GM, Chrysler or some
 20       combination of those?
 21                    A.            Correct.
 22                    Q.            What were you asked to do?
 23                    A.            To review the evidence in the case and
 24       write a court report.
 25                    Q.
                                 Draft Copy
                                     Before you did that, did you speak to


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D'Ulisse v. Asbestos - ROUGH DRAFT                                              Herman Gibb
August 1, 2006                                                                ROUGH DRAFT


                                                                                    Page 152

   1      any attorney about what your views were generally about
   2      asbestos in brakes and the risk of mesothelioma or any
   3      other asbestos disease?
   4                   A.             No.      You mean -- in what sense do you
   5      ask the question?             I am not sure.
   6                   Q.             Well, you are sitting in your office at
   7      some point in time and you get a call from Susan
   8      Davidson, right?
   9                   A.             Right.
 10                    Q.            Did you know who she was before that?
 11                    A.            I knew that she was associated with
 12       McGuire Woods.             I knew that McGuire Woods was interested
 13       in knowing whether I would be able to be an expert
 14       witness on some brake cases.
 15                    Q.            And how did you know that?
 16                    A.            Because the company had been contacted
 17       earlier in that year.                  I mean, if it was in 2004, there
 18       had been contact in 2004, asking, you know, would
 19       somebody be able to be an expert witness on brake cases.
 20                    Q.            And was that you --
 21                    A.            An expert epidemiology witness.
 22                    Q.            Was that you who was asked or somebody
 23       else?
 24                    A.            No.       I was asked -- it was known that I
 25
                                 Draft Copy
          had recently joined the company and, you know, could I do


                                            Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                      Herman Gibb
August 1, 2006                                                                        ROUGH DRAFT


                                                                                          Page 153

   1      it.
   2                   Q.            So, before the call with Susan Davidson,
   3      you --
   4                   A.            It wasn't a phone call.                It was actually
   5      an e-mail.
   6                   Q.            Before the e-mail with Susan Davidson,
   7      you were approached by someone from McGuire Woods to ask
   8      if your company would be interested in getting involved
   9      in brake cases?
 10                                  MR. LERNER:             When you say
 11                    "you," are you talking about the
 12                    company or him individually?
 13                    Q.            You, individually.
 14                    A.            No.      The company was approached about
 15       whether there was epidemiology expertise available to be
 16       an expert witness.
 17                    Q.            Who was it at the company that was
 18       approached and asked that question, you or somebody else?
 19                    A.            I believe it is probably Betty Anderson.
 20                    Q.            Who is Betty Anderson?
 21                    A.            She was the president of Sciences.
 22                    Q.            You replaced her as president?
 23                    A.            I replaced her.
 24                    Q.            So, when she left, she told you this.
 25                    A.
                                 Draft Copy
                                     He told me when she left what?


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                      Herman Gibb
August 1, 2006                                                                        ROUGH DRAFT


                                                                                          Page 154

   1                   Q.            You replaced Ms. Anderson as the
   2      president of Sciences --
   3                   A.            Right.
   4                   Q.            -- when you joined Sciences.              Is that
   5      fair to say?
   6                                 MR. LERNER:          No, no.      Were you
   7                   president from the time that you
   8                   joined.
   9                                 THE WITNESS:           No.
 10                    A.            No. I think you are confused.                I became
 11       president about two months ago.
 12                    Q.            Okay.
 13                                  Ms. Anderson, at some time after you
 14       joined Sciences, told you that she had been approached by
 15       McGuire Woods about whether or not your company wanted to
 16       get involved in brake cases?
 17                    A.            That's correct.
 18                    Q.            Was there anybody at your company who
 19       had looked into that issue in terms of asbestos brakes
 20       and asbestos disease before you got involved?
 21                    A.            She had looked at some data, I believe,
 22       on asbestos.
 23                    Q.            Anybody else other than her?
 24                    A.            I think it was Dr. Turim who had looked
 25       at asbestos.
                                 Draft Copy
                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                        Herman Gibb
August 1, 2006                                                                          ROUGH DRAFT


                                                                                            Page 155

   1                   Q.            Anybody else?
   2                   A.            No.      I think that is probably it .
   3                   Q.            Turim is Jay Turim, TURIM?
   4                   A.            T-U-R-I-M.
   5                   Q.            Does he currently work at Sciences?
   6                   A.            No.      He is gone.
   7                   Q.            He went to Exponent?
   8                   A.            He went to Exponent.
   9                   Q.            When did he leave Sciences and go to
 10       Exponent?
 11                    A.            About two months ago.
 12                    Q.            When you joined Sciences, was Jay Turim
 13       at Sciences?
 14                    A.            Yes.
 15                    Q.            What was his position at that time?
 16                    A.            He was senior vice president.
 17                    Q.            Can you tell me the structure -- who is
 18       the head of Sciences in terms of title?
 19                    A.            When?
 20                    Q.            Currently.
 21                    A.            Right now?
 22                    Q.            Right.
 23                    A.            As of August 1, 2006 I am the president?
 24                    Q.            I don't need names.                  I am trying to get
 25
                                 Draft Copy
          the corporate structure by title.


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D'Ulisse v. Asbestos - ROUGH DRAFT                                          Herman Gibb
August 1, 2006                                                            ROUGH DRAFT


                                                                               Page 156

   1                                 The president is the top person?
   2                   A.            The president is the top person.
   3                   Q.            Below president, what is the line made
   4      up of?
   5                   A.            There is a vice president and then there
   6      is -- the vice president actually has kind of a group
   7      under him because we maintain the Center For Evaluation
   8      of Reproductive Health in Children For the National
   9      Institute of Environmental Health Sciences, so there's a
 10       group under him, and then there's the controller and
 11       there's other scientists that come under me.
 12                    Q.            What is senior vice president, where
 13       does that fit in?
 14                    A.            We don't have a senior vice present now.
 15                    Q.            Okay.
 16                                  So, the old structure had some sort of
 17       senior vice president line?
 18                    A.            That's correct.
 19                    Q.            When did you write your first report
 20       with respect to asbestos brakes and risk of asbestos
 21       disease after you were told by Ms. Anderson somebody had
 22       approached the company on that subject?
 23                    A.            When I wrote the first report.    Well,
 24       again, it would have been either early 2005 or late 2004.
 25                    Q.
                                 Draft Copy
                                     The material that you relied on when you


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                  Herman Gibb
August 1, 2006                                                                    ROUGH DRAFT


                                                                                        Page 157

   1      wrote that first report, whether it was late 2004, early
   2      2005, is that the same materials that you brought today
   3      here that you are relying on in this case?
   4                   A.            Some of them.            I mean, not all of them
   5      may have.          A lot of the materials are similar, yes.             Not
   6      exactly the same, perhaps, but similar.
   7                   Q.            Have you ever met and discussed the
   8      subject of asbestos brakes and risk of asbestos disease
   9      with any employee of Exponent, whether it is Jay Turim,
 10       or Mary Jane Teta, or Patrick Sheehan, or --
 11                    A.            If I had ever met and?
 12                    Q.            Discussed asbestos in brakes with any
 13       member of Exponent.
 14                    A.            I've never had a special meeting to
 15       discuss with or sit down with somebody one-on-one and
 16       talk about asbestos.
 17                    Q.            Has that subject asbestos in brakes and
 18       risk of disease ever been discussed by you with anybody
 19       from Exponent?
 20                    A.            It has on conference calls that, you
 21       know, we have had with other potential witnesses.
 22                    Q.            When was the first such conference --
 23       strike that.
 24                                  How many such conference calls had there
 25       been?
                                 Draft Copy
                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                           Herman Gibb
August 1, 2006                                                             ROUGH DRAFT


                                                                               Page 158

   1                   A.            How many such conference calls had there
   2      been or how many have I attended?
   3                   Q.            Well, how many have there been and we
   4      will work our way down?
   5                   A.            Let's see, well -- I mean, I can't tell
   6      you how many there's been because I may not have been
   7      there for all of them.
   8                   Q.            Approximately?
   9                   A.            I can't even tell you that because
 10       sometimes they are canceled for whatever reason.             I
 11       really don't know what the number is.
 12                    Q.            Approximately how many of them have been
 13       scheduled?
 14                    A.            I don't even know that.
 15                    Q.            How many have you attended?
 16                    A.            I attended, perhaps, I would say, a half
 17       dozen at the most.
 18                    Q.            Other than folks from Exponent, who else
 19       was on these conference calls that you have attended?
 20                    A.            Well, sometimes an attorney from McGuire
 21       Woods, and there could have been other epidemiologists.
 22       I am not sure where they were all from actually.
 23                    Q.            Was there ever anybody who was an
 24       employee of Chem Risk?
 25                    A.
                                 Draft Copy
                                     Not that I was aware of.


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                      Herman Gibb
August 1, 2006                                                                        ROUGH DRAFT


                                                                                          Page 159

   1                   Q.            Was Dennis Paustenbach ever on any of
   2      the conference calls that you were on?
   3                   A.            No.
   4                   Q.            Was Mary Jane Teta?
   5                   A.            Marry Jane Teta has been.
   6                   Q.            Was Patrick Hessel?
   7                   A.            Patrick Hessel has been, yes, I believe.
   8                   Q.            Has Dennis Sheehan been on those calls?
   9                   A.            That name doesn't sound familiar.
 10                    Q.            Michael Goodman?
 11                    A.            Goodman I believe has, yes.
 12                    Q.            David Garabrandt?
 13                    A.            I Think Garabrandt has, but I can't be
 14       sure of that because I don't recognize the voices.
 15                    Q.            Edmund Lau?
 16                    A.            That name doesn't sound familiar.
 17                    Q.            Who were the epidemiologists who were
 18       not Exponent people whose employer or affiliation you did
 19       not know?
 20                    A.            I am sorry.             Which epidemiologists?
 21                    Q.            Yes.
 22                    A.            I don't know because I don't remember
 23       all the names.
 24                    Q.            Okay.
 25
                                 Draft Copy
                                     Do you remember any of the names?


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                       Herman Gibb
August 1, 2006                                                                         ROUGH DRAFT


                                                                                           Page 160

   1                   A.            Marry Jane Teta, Hessel.                I am sorry.    I
   2      am drawing a blank, but I don't recall the others.
   3                   Q.            You said Goodman and Garabrandt?
   4                   A.            Goodman, I believe.                I am not sure about
   5      Garabrandt.           I think Goodman has, but I can't be positive
   6      of that.
   7                   Q.            I thought you said earlier that there
   8      were epidemiologists on these conference calls who were
   9      not employees of Exponent's whose affiliations you did
 10       not know?
 11                    A.            There were employees -- excuse me.
 12       There were epidemiologists on the phone call whose
 13       affiliation was not Exponent.                     I can't recall their name.
 14       But in one case I knew it was, like, I think it was,
 15       University of Pennsylvania was one, I believe.
 16                    Q.            Was anyone who was affiliated with
 17       Epilung E-P-I-L-U-N-G?
 18                    A.            No, not that I recall.
 19                    Q.            Other than attorneys from McGuire
 20       Woods --
 21                    A.            No, not attorneys.                One attorney.
 22                    Q.            Who was that?
 23                    A.            It would have been Sam Tarry, and he was
 24       occasionally on the call.                 He wasn't always on the call.
 25
                                 Draft Copy
          He might be on the call -- of the maybe the half dozen I


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                     Herman Gibb
August 1, 2006                                                                       ROUGH DRAFT


                                                                                         Page 161

   1      was on, he might have made it two or three times.
   2                   Q.            I assume there was some e-mail
   3      circulated to whomever it was that was supposed to be on
   4      these conference calls with the time and phone number,
   5      that kind of thing?
   6                   A.            Right, correct.
   7                   Q.            Sam Tarry, I am assuming, was invited to
   8      all the calls whether or not he was able to conference
   9      into all the calls.            Is that fair to say?
 10                    A.            Yeah, correct.             I mean, of course.
 11                    Q.            Do you have those e-mails?
 12                    A.            The e-mails of?
 13                    Q.            Setting up the conference calls, so that
 14       we could find out who it was that was invited to the
 15       conference calls if you are not able to remember who it
 16       was?
 17                    A.            I think I deleted them.
 18                    Q.            If you have them, I ask that you
 19       preserve them.
 20                                  MR. KRISTAL:           And I request
 21                    those.
 22                    Q.            Other than the conference calls that we
 23       have been discussing, have you ever discussed brakes and
 24       exposure to asbestos and risk of asbestos disease with
 25
                                 Draft Copy
          any member of Exponent in any other context?


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                            Herman Gibb
August 1, 2006                                                                              ROUGH DRAFT


                                                                                                Page 162

   1                   A.            No.
   2                   Q.            Have you ever attended any certain
   3      meeting where that was discussed, DRI meeting, Defense
   4      Research Institute meeting, or anything like that?
   5                   A.            No.
   6                   Q.            Have you ever been to a Defense Research
   7      Institute meeting?
   8                   A.            No.
   9                   Q.            Does Sciences have a table at the
 10       Defense Research Institute conferences or meetings?
 11                    A.            Have a table?
 12                    Q.            Yes, a booth.
 13                    A.            A what?
 14                    Q.            A booth.
 15                    A.            A booth.          In fact I never heard of
 16       Defense Research Institute.
 17                    Q.            Okay.
 18                                  When in the process of writing the first
 19       report that you've written with respect to asbestos
 20       brakes and risk of asbestos disease was the first
 21       conference call?
 22                    A.            When?
 23                    Q.            Yes.
 24                    A.            I would guess that it was probably
 25       about -- let me see.
                                 Draft Copy   I don't know.               My guess, it is


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                       Page 163

   1      either 2004 or 2005.                I can't be more specific.
   2                   Q.            Before you wrote your first report?
   3                   A.            No.      I think I had already written a
   4      report by that time.
   5                   Q.            Did you circulate your report to anybody
   6      for review?
   7                   A.            Circulate it, you mean to other --
   8                   Q.            Show anybody your report before it was
   9      finalized, so you can get their comments?
 10                    A.            No.      I just do the report and submit it.
 11                    Q.            Did you ever speak to anyone about the
 12       contents of your report before you submitted it?
 13                    A.            No.      I might -- no, not really.
 14                    Q.            What does not really mean?
 15                    A.            I might ask somebody to, what do you
 16       think of the syntax of this sentence, something of that
 17       nature, but not comment on the science.
 18                    Q.            Was there anybody whom you asked that
 19       type of question who was not an employee of Sciences?
 20                    A.            No.
 21                    Q.            Was Jay Turim ever on any of these
 22       conference calls that you had?
 23                    A.            No?
 24                    Q.            Was he invited?
 25                    A.
                                 Draft Copy
                                     No, he wasn't, actually.             He was not an


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                      Herman Gibb
August 1, 2006                                                                        ROUGH DRAFT


                                                                                          Page 164

   1      epidemiologist.            It was supposed to be for
   2      epidemiologists.
   3                   Q.            Who convenes these conference calls,
   4      McGuire Woods, somebody else?
   5                   A.            I think it's McGuire Woods but, you
   6      know, I am not sure about that to tell you the truth.
   7                   Q.            Well, you have received e-mails that
   8      says the next conference call is on such and such a date,
   9      correct?
 10                    A.            Correct.
 11                    Q.            Here is the date, correct?
 12                    A.            Correct.
 13                    Q.            Who is the person who sent those?
 14                    A.            I have to be honest, I can't remember
 15       who it came from.
 16                    Q.            Well, was it from McGuire Woods?
 17                    A.            I am not sure.             I mean, it possibly
 18       might have come from Exponent.                      I am not sure.
 19                    Q.            What is the purpose of these conference
 20       calls?
 21                    A.            To discuss if there is any literature
 22       that is current, you know, what study, if there are any
 23       recent studies, that sort of thing.
 24                    Q.            Did you discuss the study that Exponent
 25
                                 Draft Copy
          is conducting with respect to the risk of disease in


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                       Page 165

   1      Chrysler employees?
   2                   A.            I didn't even know they were doing such
   3      a study.
   4                   Q.            What studies did you discuss that were
   5      ongoing?
   6                   A.            Well, there's a study on asbestos in --
   7      there's a paper that came out in France, for example, on
   8      asbestos and disease.                 It wasn't necessarily related to
   9      brake mechanic.            It was just on asbestos.             A presentation
 10       of a paper at the Society of Toxicology I believe on
 11       asbestos.          Again, they may not relate necessarily to
 12       brake work.           They could have just been asbestos as
 13       asbestos.
 14                    Q.            Does anybody else other than yourself
 15       from Sciences attend these conference calls?
 16                    A.            No.      I am the only one.
 17                    Q.            Does anybody circulate any minutes of
 18       what occurred at these conference call?
 19                    A.            No.
 20                    Q.            Did you ever take any notes of what
 21       occurred at these conference calls?
 22                    A.            No.
 23                    Q.            Do you have any problems turning over
 24       your personnel file from Sciences?
 25
                                 Draft Copy
                                     MR. LERNER:             Objection.


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   1                                 Don't answer that.
   2                                 MR. KRISTAL:            Well, what's the
   3                    basis of that objection?
   4                                 MR. LERNER:           Under what
   5                    grounds would you be entitled to his
   6                    personnel file?
   7                                 MR. KRISTAL:            I am just asking
   8                    if he has any problem.
   9                                 MR. LERNER:           I am objection.
 10                     I have a problem.
 11                                  MR. KRISTAL:            Are you saying
 12                     there's no grounds that I have for --
 13                                  MR. LERNER:           To get his
 14                     personnel file, yes.
 15                                  MR. KRISTAL:            Are you saying
 16                     there's no grounds for us getting his
 17                     personnel file from the EPA?
 18                                  MR. LERNER:           Yes.
 19                                  MR. KRISTAL:            Can you mark
 20                     that.
 21                     Q.           There's an epidemiologist, and I
 22       apologize, I don't have the last time, but I believe it
 23       it's Indian or Pakistani.                  It begins with a T. She used
 24       to work for Sciences.              It doesn't ring any bells?
 25                     A.
                                 Draft Copy
                                     No.


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   1                   Q.            Let me see if I can find what I am
   2      looking for, then, that has her name on it.
   3                                 Other than Dr. Turim, is there anybody
   4      to your knowledge who has worked at Sciences who has left
   5      and become an employee of Exponent?
   6                   A.            Has left Sciences and become an employee
   7      of Exponent?
   8                   Q.            Yes.
   9                   A.            There have been, let's see, a total of
 10       six people, I think.
 11                    Q.            Who are they other than Dr. Turim?
 12                    A.            Betty Anderson.
 13                    Q.            Okay.
 14                                  Anybody else?
 15                    A.            John Griffin, Sheila McCarthy, Paul
 16       Turnham and --
 17                    Q.            Is that it?
 18                    A.            I guess that is it, just five.
 19                    Q.            Have any members of Exponent jumped ship
 20       and joined Sciences?
 21                    A.            No.
 22                    Q.            Do you view Exponent as a competitor?
 23                    A.            They are a consulting company that
 24       does -- that would do health risk assessment, so in that
 25
                                 Draft Copy
          sense I guess they would be a competitor.


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August 1, 2006                                                                       ROUGH DRAFT


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   1                   Q.            Do you know Dennis Paustenbach?
   2                   A.            I know him.
   3                   Q.            From your chromium days?
   4                                 MR. LERNER:          Objection.
   5                   Q.            Do you know him from when you were doing
   6      work at the EPA on chromium?
   7                   A.            Yes.
   8                   Q.            Suresh, S-U-R-E-S-H, Moolgabkar,
   9      M-O-O-L-G-A-B-K-A-R, she used to be with Sciences?
 10                    A.            That is a he actually.
 11                    Q.            I am sorry.          I apologize to him.
 12                    A.            Well, he was never really at Sciences.
 13       He was at the University of Washington.                        He did
 14       consulting for Sciences, but he wasn't, you know, a
 15       full-time employee.
 16                    Q.            Do you know if he has joined Exponent?
 17                    A.            He, I understand, goes on -- I am not
 18       sure if he is on the website or not.                         He hasn't joined
 19       them as a full-time employee.
 20                    Q.            He consults with them?
 21                    A.            I don't know that he consults with them,
 22       but he may.
 23                    Q.            Has he ever been on any of these
 24       conference calls?
 25                    A.
                                 Draft Copy
                                     Yes.


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   1                   Q.              He is an epidemiologist?
   2                   A.              He is an epidemiologist.                He hasn't been
   3      on recently.               I am not sure if I can recall -- he might
   4      have been on one call, one call.
   5                   Q.              Did you bring the curriculum vitae?
   6                   A.              No.
   7                   Q.              Let me mark what I got off the website
   8      and it will suffice.
   9                                   (Plaintiff's Exhibit 3 was
 10                    marked for identification.)
 11                    Q.              Let me hand you Plaintiff's Exhibit 3
 12       and tell me what that is.
 13                    A.              It looks like my resume.
 14                    Q.              So, Exhibit 3 is a current copy of your
 15       resume?
 16                    A.              No.      I think actually there's a more
 17       current one because it would say Dr. Gibb, President of
 18       Science International.
 19                    Q.              Are there any articles that are on your
 20       resume -- strike that -- that are not on your resume that
 21       should be with respect to articles that you've authored
 22       or coauthored, is it current?                          The most recent, under
 23       journals listed, is a Letter to the Editor with
 24       Dr. Scialli which says it is in press.                            It is already out
 25       now, right?
                                 Draft Copy
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                                                                                    Page 170

   1                   A.            Yes.
   2                   Q.            Is there anything else that is in press
   3      or been submitted that is not on this resume?
   4                   A.            I think it is possible that there is --
   5      I think there might be one on Mercury, one or two on
   6      Mercury.
   7                   Q.            Would you agree that your area of
   8      expertise is in metals?
   9                   A.            I have done a lot of work in metals, but
 10       I think if I had to carve a niche it was in health risk
 11       assessment because I have done a lot of health risk
 12       assessment work in a variety of substances.                  A lot have
 13       been on metals.
 14                    Q.            Well, you have never written anything on
 15       asbestos, right?
 16                    A.            I did the -- actually, we -- I did a
 17       report at --
 18                    Q.            The World Trade Center report?
 19                    A.            The World Trade Center report, right.
 20                    Q.            You didn't write the section on
 21       asbestos, did you?
 22                    A.            Well, I did a lot of work on it.       It was
 23       a collaborative effort.
 24                    Q.            The section on asbestos is attributed to
 25
                                 Draft Copy
          specific people, is it not, in terms of being the authors


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   1      of that section?
   2                   A.             Yes.    But, I was directed the entire
   3      assessment.
   4                   Q.             You were not listed as one of the
   5      authors on the section of asbestos in the World Trade
   6      Center report.             Is that fair to say?
   7                   A.             That's fair.
   8                   Q.             Anything else that relates to asbestos
   9      that you believe you have had a hand in other than that?
 10                    A.            In terms of what, writing or what?
 11                    Q.            Yes, writing.
 12                    A.            Writing, not that's been published, no.
 13                    Q.            You have been involved with IPSC?
 14                    A.            Not IPSC, IPCS.
 15                    Q.            What is that the International Program
 16       on Chemical Safety?
 17                    A.            Right.
 18                    Q.            And that's an umbrella organization of
 19       the World Health Organization and two other groups?
 20                    A.            It's not the umbrella organization.          The
 21       World Health Organization is the umbrella.                    IPCS is part
 22       of WHO.        It's publications are published through WHO,
 23       World Health Organization.
 24                    Q.            And the various publications from IPCS
 25
                                 Draft Copy
          are publications that represent the consensus of whatever


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August 1, 2006                                                                      ROUGH DRAFT


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   1      panel of experts are studying a specific substance
   2      involved?
   3                    A.           It depends on what the publication is.
   4      But, in general, it is a collection of experts that, you
   5      know, are reviewing data for some particular
   6      health-related issue.
   7                    Q.           And are those experts generally
   8      considered authorities in their field?
   9                    A.           Yes.   That is correct.
 10                     Q.           Have you ever been asked to review or
 11       write anything -- strike that.                      Maybe I am assuming
 12       something.
 13                                  Does the IPCS -- strike that.
 14                                  Has the IPCS ever published anything on
 15       asbestos?
 16                     A.           I believe they published on asbestos.
 17                     Q.           Were you asked to be a member of the
 18       panel that wrote that?
 19                     A.           No.
 20                     Q.           Have you ever read that?
 21                     A.           If I have, it's not been in detail.
 22                     Q.           Was there something in the health
 23       assessment area that you consider to be your niche that
 24       you relate to asbestos in your history?
 25                     A.
                                 Draft Copy
                                     I mean, the review of -- I am not sure


                                       Priority One Court Reporting
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                                                                                                 Page 173

   1      what the question is you are trying to get at.
   2                   Q.              I asked you if you considered yourself
   3      to be an expert in the area of metals as your primary
   4      life's work.               And I think you said that you consider your
   5      niche to be risk assessment, something to that effect.
   6                   A.              I mean, I have done a lot of work in
   7      metals.        I mean, that is apparent.                          But, I have done a
   8      lot of work on health risk assessment and that is what I
   9      have done for 25 years.
 10                    Q.              And I am asking you if prior to being
 11       approached by the attorney from McGuire Woods any of your
 12       health risk assessment work related to asbestos?
 13                    A.              Well, some at the Environmental
 14       Protection Agency didn't necessarily involve publication,
 15       but there was the World Trade Center.                               I did asbestos
 16       work at, you know, evaluating asbestos at Libby, Montana.
 17       I was director of the IRIS program under which asbestos
 18       has been reviewed.
 19                    Q.              Okay.
 20                                    Anything else?
 21                    A.              Some discussion with people on the Hill
 22       regarding asbestos, but nothing that wasn't probably
 23       necessarily related to the health aspect.
 24                    Q.              Anything else?
 25                    A.
                                 Draft Copy
                                       No.      That is it.


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   1                   Q.            The World Trade Center work that you did
   2      involved many other substances other than asbestos,
   3      correct?
   4                   A.            That is correct.
   5                   Q.            Did you do any research on asbestos in
   6      terms of health effects of asbestos for the World Trade
   7      Center project?
   8                   A.            Research in the sense of what?
   9                   Q.            A literature search.
 10                    A.            Oh, we did a literature search.
 11                    Q.            I am not asking we.               I am asking you,
 12       personally.
 13                    A.            Did I personally?
 14                    Q.            Yes.
 15                    A.            Of course we did.
 16                    Q.            I am not asking we.               I am asking you,
 17       personally, did you do a literature search on asbestos
 18       pursuant to your work with respect to the World Trade
 19       Center?
 20                    A.            We evaluated -- we took the information
 21       that we could get from any sort of documents, and these
 22       were assessment documents that we had, and kind of, you
 23       know, evaluations of asbestos exposure in trying to
 24       evaluate what effects could have come from the collapse
 25
                                 Draft Copy
          of the World Trade Center Towers.


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                       Herman Gibb
August 1, 2006                                                                         ROUGH DRAFT


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   1                   Q.              I am not asking what we did.            I am
   2      asking what you personally did?
   3                   A.              I did some of that.
   4                   Q.              What specifically did you do on the
   5      World Trade Center project that related to asbestos?
   6                                   You didn't take any of the measurements,
   7      did you, first of all?
   8                   A.              We were health risk assessors, exposure
   9      assessors.          We weren't collecting measurements.                The
 10       measurements were being collected by people here in New
 11       York.       Some were being collected by people from our
 12       research and development office in North Carolina who set
 13       up certain samplers.                  We obviously had to have
 14       discussions with them.                    We had discussions with
 15       whomever -- I had discussions with whomever I thought it
 16       was necessary to make an evaluation given the information
 17       that we had.
 18                    Q.              With respect to asbestos, you had
 19       delegated that to the people who wrote the chapter on
 20       asbestos, did you not?
 21                    A.              No.      I did a lot of the discussions with
 22       people.        Of course, I got people to write.                  They may have
 23       taken most of the effort, but I was involved in what that
 24       section said.              I was involved in how we were going to
 25
                                 Draft Copy
          approach it, discussions with people in New York,


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August 1, 2006                                                                         ROUGH DRAFT


                                                                                            Page 176

   1      discussions with North Carolina, so I had a lot of
   2      hands-on.          It wasn't you do the work, and I will sit back
   3      and take the credit sort of thing.                           There was a lot of
   4      discussion, and there was a lot of give and take among
   5      all of the parties involved.
   6                   Q.            Did you do a literature search with
   7      respect to that work on asbestos?
   8                   A.            We didn't do a literature --
   9                   Q.            Not we, I am asking you.
 10                    A.            Did I do a literature search?
 11                    Q.            That's right.
 12                    A.            I don't think we did -- I don't think
 13       any of the team did a literature search, the kind of
 14       literature search that you are talking about.                          What we
 15       did was, we took evaluations that we had, such as AHERA
 16       evaluations, which allows for so much asbestos for
 17       reentry to a school building, those kinds of things, to
 18       make an evaluation of was there -- what exposure there
 19       was, what implications it might have had for health.
 20                    Q.            What work did you do with respect to the
 21       Libby, Montana mine?             First of all, when was it that you
 22       did that work?
 23                    A.            It was about 2003, I think.
 24                    Q.            What did you do, you, meaning, you
 25       specifically?
                                 Draft Copy
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August 1, 2006                                                                  ROUGH DRAFT


                                                                                    Page 177

   1                   A.            There was concern because vermiculite
   2      attic insulation.            Vermiculite is mined at Libby.
   3      Vermiculite, there was a concern over what exposure or
   4      what risk it might present.                   We didn't have any evidence
   5      that it did present any risk.                     I had a number of
   6      discussions with people in Region 8, which is EPA Region
   7      8, and we designed -- we came up with a research program
   8      to evaluate, to see if we could evaluate, you know, if
   9      there was any exposure, if there was any risk at all.
 10                    Q.            Environmental exposures from the mines
 11       there.       Is that what you are talking about?
 12                    A.            It wasn't -- there was the risk to the
 13       workers, but there was also was there a risk, if there
 14       was any risk, to people in the community.
 15                    Q.            And which of those assessments were you
 16       involved?
 17                    A.            We were looking at the risk in the
 18       community.
 19                    Q.            Was there a concern that vermiculate was
 20       contaminated with asbestos?
 21                    A.            There was concern that vermiculate could
 22       have asbestos and, you know, was there a risk.                    We don't
 23       have any evidence there's a risk.
 24                    Q.            What type of asbestos is there in
 25       vermiculate?
                                 Draft Copy
                                        Priority One Court Reporting
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August 1, 2006                                                                       ROUGH DRAFT


                                                                                         Page 178

   1                   A.               There is, well, tremolite, I believe is
   2      an asbestos.               Anthophyllite and there are other
   3      amphiboles that I can't recall which ones they are.
   4                   Q.               Do you have an opinion as to whether all
   5      commercial chrysotile is contaminated with tremolite?
   6                   A.               I am sorry?            There --
   7                   Q.               If you were in the middle of saying
   8      something, I will withdraw my question and ask it again?
   9                   A.               I am sorry.            There was some evidence of
 10       tremolite is in vermiculite.                         I am not sure about the
 11       anthophyllite.              But, tremolite, there is some of that in
 12       vermiculate.
 13                    Q.              Any other amphibole other than
 14       tremolite?
 15                    A.              There are a couple, and I was trying to
 16       remember what their names are, but I can't.
 17                    Q.              Do you have an opinion as to whether or
 18       not all commercial chrysotile is contaminated with
 19       tremolite?
 20                                    Have you looked into that question?
 21                    A.              No.
 22                    Q.              I take it you have no opinion one way or
 23       the other?
 24                    A.              Whether all commercial --
 25                    Q.
                                 Draft Copy
                                       Chrysotile as opposed to --


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   1                    A.           What are you calling commercial
   2      chrysotile?
   3                    Q.           Do you know what laboratory chrysotile
   4      is?
   5                    A.           That would be -- I presume it would be
   6      pure chrysotile.            Is that what you --
   7                    Q.           That's right.
   8                                 In contrast to laboratory chrysotile,
   9      chrysotile that was used in commercial products, do you
 10       have an opinion as to whether or not all of that
 11       chrysotile is contaminated with tremolite?
 12                     A.           I don't have an opinion.
 13                     Q.           IRIS, it is a risk assessment database,
 14       is that what it is?
 15                     A.           Correct.       It is an assessment of about
 16       500 plus different substances that the EPA has done
 17       evaluations on.
 18                     Q.           What exactly is on the database, just a
 19       collection of risk assessments?
 20                                  Let me make my question clearer.
 21                     A.           Yes.
 22                     Q.           Is the IRIS database a collection of
 23       data, or is it a collection of EPA documents assessing
 24       the risks of substances that are all in one place or
 25       something else?
                                 Draft Copy
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                                                                                  Page 180

   1                   A.            It is an EPA evaluation of substances.
   2                   Q.            One of those 500 substances is asbestos?
   3                   A.            That's correct.
   4                   Q.            And somebody who was under you, in terms
   5      of your position at the EPA, did a risk assessment on
   6      asbestos that is on the IRIS database?
   7                   A.            No.      Assessment asbestos was done some
   8      years ago.          I can't remember the exact date, but it's
   9      been done for a while.
 10                    Q.            Okay.
 11                                  Other than that risk assessment, was
 12       there anything else on the IRIS database with respect to
 13       asbestos?
 14                    A.            Not that I am aware of.
 15                    Q.            Was the risk assessment for asbestos
 16       that is on the IRIS database completed before you joined
 17       the EPA?
 18                    A.            Not before I joined EPA, no.
 19                    Q.            Okay.
 20                                  Did you have any involvement in that
 21       risk assessment for asbestos?
 22                    A.            No.
 23                    Q.            So, then, what was it about, you said
 24       that you were the director of the EPA, and the IRIS
 25
                                 Draft Copy
          database said something about asbestos?


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   1                    A.           No.   I was never director of the EPA.
   2                    Q.           You mentioned the IRIS database in
   3      something in your work history that had something to do
   4      with asbestos in which you were involved.
   5                                 I am asking you, what was your
   6      involvement, if anything, with respect to that part of
   7      your work?
   8                    A.           There's a new assessment being done on
   9      asbestos.          I was the -- as the associate director for
 10       health, the assessment was being done under me, but it
 11       wasn't something, you know, that I was directly involved
 12       in.
 13                     Q.           Okay.
 14                                  So, as associate director of health,
 15       somebody under you was involved in some other group
 16       putting together an updated assessment on asbestos?
 17                     A.           That's correct.
 18                     Q.           You had nothing to do with that other
 19       than that you happened to be in the chain of command,
 20       right?
 21                     A.           That's correct.
 22                     Q.           Is that the ERG assessment?
 23                     A.           No.   The ERG assessment was just -- it
 24       was a discussion with regard to fiber length and so
 25       forth.
                                 Draft Copy
                        It was -- it's sort of a group of experts to


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August 1, 2006                                                                           ROUGH DRAFT


                                                                                             Page 182

   1      provide some input to what the agency does.
   2                   Q.            In your report, you wrote that the ERG
   3      draft report was part of the ATSDR.                             Is that accurate or
   4      is that just a mistake in your report?
   5                   A.            Did I say that?
   6                   Q.            I think you did on page five of your
   7      report.
   8                   A.            Where are you?
   9                   Q.            The sentence above the last paragraph,
 10       you wrote?
 11                                  "As already discussed, an
 12                    expert panel convened by the Agency
 13                    for Toxic Substances and Disease
 14                    Registry, concluded that fibers he
 15                    less than five microns in length pose
 16                    little or no carcinogenic risk."
 17       And you cited the Eastern Research Group from paper 2003.
 18                    A.            Right.
 19                    Q.            That's just a mistake?
 20                    A.            No.      I think it is -- is this the -- it
 21       was prepared for ATSDR.
 22                    Q.            Is that what you are talking about in
 23       this risk assessment for IRIS?
 24                    A.            No.
 25                    Q.
                                 Draft Copy
                                     I am trying to understand.


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   1                                 You said there's an ongoing update of
   2      risk assessment --
   3                   A.            There's an ongoing -- let me clarify.
   4                   Q.            Okay.
   5                   A.            There's an ongoing assessment for
   6      asbestos being done by the IRIS program.
   7                   Q.            As part of the EPA?
   8                   A.            As part of the EPA.
   9                   Q.            Is that part of the ATSDR at all?
 10                    A.            No.      The ATSDR is part of the Centers
 11       for Disease Control and ATSDR does work for EPA in a
 12       sense because they get Superfund money.                         So, it was ATSDR
 13       who convened this panel to get comment on fiber length
 14       and so forth.
 15                    Q.            To what end did they get that or want to
 16       get that comment?
 17                    A.            To what end?              What do you mean by to
 18       what end?
 19                    Q.            To what purpose was the document that
 20       was generated by ERG to be put to ATSDR?
 21                    A.            Well, it is to help them in evaluating,
 22       you know -- you know ATSDR does evaluations of Superfund
 23       sites, so it is presumably for that purpose.
 24                    Q.            If I am understanding correct, I think
 25
                                 Draft Copy
          it was March of 2003 the draft of the ERG paper came out?


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August 1, 2006                                                                    ROUGH DRAFT


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   1                    A.           Is that -- I don't know.
   2                                 Is that the date?
   3                    Q.           Is this the paper here, and I will mark
   4      it as Exhibit 4.            It is just part of the materials that
   5      you had brought.
   6                                 (Plaintiff's Exhibit 4 was
   7                    marked for identification.)
   8                    A.           I am sorry.          What is your question
   9      again?
 10                     Q.           The date is March 2003?
 11                     A.           Right.
 12                                  MR. KRISTAL:           We are going to
 13                     mark as Exhibit 5 a different copy of
 14                     the same report apparently.
 15                                  (Plaintiff's Exhibit 5 was
 16                     marked for identification.)
 17                     Q.           Plaintiff's Exhibit 5, it is dated June
 18       20, 2005 in terms of the print date off of the internet.
 19       Are they the same report?
 20                                  They have the same title?
 21                                  Are they the same?
 22                     A.           I am sure they are the same report.
 23                                  MR. LYNCH:         Off the record.
 24                                  (Pause in proceedings.)
 25                     Q.
                                 Draft Copy
                                     Are they the same?


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August 1, 2006                                                             ROUGH DRAFT


                                                                               Page 185

   1                   A.            It is the same report, yes.
   2                   Q.            The one off the internet has some extra
   3      pages.       We marked both of them, so we will have both of
   4      them?
   5                                 That report, the March 2003 one, we will
   6      call it the ERG Report, it's just a draft, right?
   7                   A.            That would be the draft, but that is the
   8      same thing.
   9                   Q.            Are you aware of the current status of
 10       that report, whether it's been accepted or modified?
 11                                  Do you have any knowledge one way or the
 12       other?
 13                    A.            As far as I am concerned, I mean, I
 14       understand it is a final report.
 15                    Q.            Where does it say that?
 16                    A.            Well --
 17                    Q.            Can I see it.
 18                    A.            As far as -- I believe it is final.
 19                    Q.            Now, the report that I am looking at,
 20       there are notes that quote
 21                                  "Except as specifically noted,
 22                    no statements in this report represent
 23                    analyses by or positions of ATSDR or
 24                    ERG," end quote.
 25
                                 Draft Copy
                                     Is that your understanding of


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                        Page 186

   1      the report?
   2                   A.            That's correct.
   3                   Q.            So, this report is not an ERG G position
   4      paper, is it?
   5                   A.            ERG is the contractor who convened the
   6      experts and wrote the report.                        I mean, the government
   7      will sometimes ask for groups of experts to provide their
   8      opinion.          They will always put a disclaimer on there
   9      saying that this is not necessarily their position, but
 10       they do want the advice of experts and that is why the
 11       panel is convened.
 12                    Q.            But, the document itself does not
 13       represent the official position of ERG or ATSDR.                       Is that
 14       correct?
 15                    A.            That's correct.
 16                    Q.            Or EPA?
 17                    A.            No.      It wasn't convened by EPA.         It was
 18       convened by ATSDR.
 19                    Q.            The review that you mentioned that is
 20       ongoing, the new risk assessment for asbestos for the
 21       EPA, when was that commenced?
 22                    A.            Maybe it was 2002 or 2003.             It's been a
 23       while.
 24                    Q.            Is that review complete?
 25                    A.
                                 Draft Copy
                                     No.


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                      Herman Gibb
August 1, 2006                                                                        ROUGH DRAFT


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   1                   Q.            Have you seen any reports, or drafts of
   2      the reports or documents from that review?
   3                   A.            No.
   4                   Q.            Were you involved at all in that review?
   5                   A.            In the review -- I mean, they are still
   6      developing the assessment report.
   7                   Q.            I didn't understand what you just said.
   8                                 They were still developing the
   9      assessment?
 10                    A.            When you asked your question, if I
 11       understand you correctly.                    Was I involved in the review.
 12                    Q.            Right.
 13                    A.            Is that correct?
 14                    Q.            Yes.
 15                    A.            So, you are asking me if I reviewed the
 16       assessment that was being done.                          Is that correct?
 17                    Q.            No.      I am asking if you were involved in
 18       the assessment?
 19                    A.            No.      Again, as I indicated earlier, I
 20       was not involved in the assessment.
 21                    Q.            And you had not been asked to nor had
 22       you reviewed the assessment?
 23                    A.            Well, I left the agency in 2004.
 24                    Q.            So, the answer is, no.                You haven't been
 25       asked nor --
                                 Draft Copy
                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                               Herman Gibb
August 1, 2006                                                                 ROUGH DRAFT


                                                                                   Page 188

   1                   A.            No.
   2                   Q.            -- have you reviewed?
   3                   A.            No, I was not.
   4                   Q.            Do you know if the assessment is
   5      complete?
   6                   A.            My understanding is that it is not.
   7                   Q.            Was there an outside group contracted by
   8      EPA to do the assessment or was that all internal?
   9                   A.            I think there were some outside groups
 10       involved.
 11                    Q.            Do you know who they were?
 12                    A.            Well, there was -- they did get a --
 13       they convened their own advisory group and met in San
 14       Francisco sometime ago.                   But as far as who the contractor
 15       was, whether there was a contractor, I can't give you any
 16       details.         I don't know the information.
 17                    Q.            What discussion with people on the Hill
 18       have you had about asbestos?
 19                    A.            Only with regard to, you know, just
 20       asking for what types of activities the Environmental
 21       Protection Agency might be involved with regarding
 22       asbestos.
 23                    Q.            When did they occur, the conversations
 24       that you are talking about?
 25                    A.
                                 Draft Copy
                                     2002, perhaps.


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D'Ulisse v. Asbestos - ROUGH DRAFT                                               Herman Gibb
August 1, 2006                                                                 ROUGH DRAFT


                                                                                    Page 189

   1                   Q.            Have you ever heard of the EPA Gold
   2      Book?
   3                   A.            I've heard of it, yes.
   4                   Q.            What is your understanding of what that
   5      is?
   6                   A.            The Gold Book was put out by the Office
   7      of Toxic Substances.             It was intended to be mostly, my
   8      understanding was, an industrial hygiene guide.                   I think
   9      it is rather old.            It was put out in 1986.         It was put
 10       out thereabouts.
 11                    Q.            Where did you get this information about
 12       the Gold Book, from whom?
 13                    A.            I never even heard of the Gold Book
 14       until I left the agency.
 15                    Q.            So, it was from one of these conference
 16       calls?
 17                    A.            It was -- somehow I became aware of it
 18       in -- it may have been in a conference call.                  It may have
 19       been talking with Sam Tarry.
 20                    Q.            Do you have any knowledge of the attempt
 21       to get the EPA to modify or withdraw the Gold Book which
 22       was requested by some law firms?
 23                    A.            I didn't know that law firms had
 24       requested it be withdrawn.
 25                    Q.
                                 Draft Copy
                                     Who do you think requested it be


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                          Herman Gibb
August 1, 2006                                                                            ROUGH DRAFT


                                                                                               Page 190

   1      withdrawn?
   2                   A.            I didn't know that it was asked to be
   3      withdrawn.
   4                   Q.            Okay.
   5                                 Therefore, you have no knowledge of what
   6      the status of that request is if there is such a request?
   7                   A.            Obviously, not.
   8                   Q.            Other than the four things that we
   9      discussed that you had mentioned, the asbestos in Libby,
 10       the World Trade Center, the IRIS system, and the
 11       discussion with people on the Hill, there's nothing in
 12       your work, professional work, prior to getting involved
 13       in asbestos litigation that you did that had anything to
 14       do with asbestos other than that.                            Is that correct?
 15                    A.            That's correct to the best of my
 16       knowledge.          I can't think of anything else.
 17                    Q.            I want to try and put some dates on some
 18       of the activities in your resume if we could.
 19                                  Does it start chronologically from the
 20       beginning in terms of your positions or is it just sort
 21       of a potpourri of information?
 22                    A.            It goes from most current position
 23       backwards and publications are most current backwards.
 24                    Q.            I am on page five of your resume.                    It
 25
                                 Draft Copy
          says "Patient Administrator, Rank:                            First Lieutenant,


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August 1, 2006                                                                  ROUGH DRAFT


                                                                                    Page 191

   1      U.S. Beach Army Hospital."
   2                                 Can you tell me what years you were
   3      doing that?
   4                    A.           1971 to 1973.
   5                    Q.           The next position you had is when you
   6      joined the EPA?
   7                    A.           That's correct.
   8                    Q.           So, you joined the EPA when?
   9                    A.           1974.
 10                     Q.           Did you go directly from being patient
 11       administrator to your work at the EPA or was there a
 12       break?
 13                     A.           I went to graduate school and got a
 14       master's degree in public health in environmental health
 15       at the University of Pittsburgh.
 16                     Q.           Was Thomas Mancuso there at that time?
 17                     A.           Mancuso was sort of a professor.           I
 18       don't know what you call him.                     It's kind of an exalt
 19       position.
 20                     Q.           Emeritus?
 21                     A.           Emeritus, exactly.
 22                     Q.           And you are familiar with the Mancuso
 23       paper from around that time period on chromium?
 24                     A.           That's right.
 25                     Q.
                                 Draft Copy
                                     Is Dr. Mancuso a respected authority in


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                        Herman Gibb
August 1, 2006                                                                          ROUGH DRAFT


                                                                                            Page 192

   1      the field of epidemiology?
   2                    A.             I think -- yeah.                 I mean, he, you know,
   3      had some good work.
   4                    Q.             The next -- is it correct, then, from
   5      1974 until you left the EPA in --
   6                    A.             In 2004.
   7                    Q.             -- in 2004, you had continuous
   8      employment with the EPA or were there breaks where you
   9      did other things?
 10                     A.             This was some of the break when I went
 11       to graduate school at Johns Hopkins to get a Ph.D. in
 12       epidemiology.              Actually, I was on the -- I was still an
 13       EPA employee because they funded that.
 14                     Q.             All right?
 15                     A.             And I was mobilized for the Gulf War in
 16       1991, so I was out of the agency for about nine months.
 17                     Q.             From 1974 until when were you a health
 18       research specialist?
 19                     A.             From 1971 until --
 20                     Q.             From 1974 when you joined the EPA --
 21                     A.             Right.
 22                     Q.             -- your first position was as a health
 23       research specialist.
 24                     A.             Right.
 25                     Q.
                                 Draft Copy
                                       Until what year?


                                         Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                  Herman Gibb
August 1, 2006                                                                    ROUGH DRAFT


                                                                                        Page 193

   1                    A.           Until about approximately 15 months.
   2                    Q.           Sometime in 1975?
   3                    A.           1975.
   4                    Q.           So, from 1975 until when were you an
   5      environmental health specialist?
   6                    A.           I think that is approximately three
   7      years.
   8                    Q.           So, now we are up to about 1978 or so?
   9                    A.           That's right.
 10                     Q.           So, about 1978 until when did you have
 11       your next position as environmental protection
 12       specialist?
 13                     A.           Let me describe it to you, okay.
 14                                  The first 15 months I was in the Office
 15       of Research and Development doing health research.                       The
 16       next three years I was in pesticides.                       I worked in the
 17       office of pesticides.              After that, I joined research and
 18       development again and that's approximately 1980 and we
 19       did -- it was health risk assessments.
 20                     Q.           Until when?
 21                     A.           Until the office of -- I was in the
 22       office of health and environmental protection, which is
 23       part of the Office of Research and Development, and that
 24       became the National Center for Environmental Assessment,
 25
                                 Draft Copy
          so from 1980 until 2004 I was in the National Center For


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D'Ulisse v. Asbestos - ROUGH DRAFT                                          Herman Gibb
August 1, 2006                                                            ROUGH DRAFT


                                                                              Page 194

   1      Environmental Assessment.
   2                    Q.           How many national centers are there at
   3      the EPA?
   4                    A.           There's now three.
   5                    Q.           Well, at time that you were at the EPA?
   6                    A.           Two.
   7                    Q.           So, there's a National Center for
   8      Environment Assessment?
   9                    A.           Right.     And National Center for
 10       Environmental Research.
 11                     Q.           What was the next organizational level
 12       above those national centers?
 13                     A.           Office of Research and Development.
 14                                  MR. KRISTAL:           Did you get
 15                     that --
 16                     A.           Office of Research --
 17                     Q.           Office of Research and Development.
 18                                  How many offices were on the same line
 19       as the Office of Research and Development at EPA?
 20                     A.           Perhaps five or six, maybe.
 21                     Q.           What was the next line up above the
 22       offices level?
 23                     A.           I was the administrator.
 24                     Q.           Administrator of the EPA?
 25                     A.
                                 Draft Copy
                                     Administrator of the Environmental


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                           Herman Gibb
August 1, 2006                                                                             ROUGH DRAFT


                                                                                                Page 195

   1      Protection Agency.
   2                   Q.            And below the Health Assessment Center,
   3      what's the next level below that?
   4                   A.            Well, the Center -- the center had a
   5      branch in Research Triangle Park, a branch in Cincinnati
   6      and a branch in Washington, so they are all part of the
   7      National Center.
   8                   Q.            And what is the level below that?
   9                   A.            There wasn't a level below that.
 10                    Q.            So, the lowest level that the EPA is
 11       known as the center level, the two centers?
 12                    A.            No.      It is --
 13                    Q.            I am trying to get an understanding of
 14       the structure of the EPA?
 15                    A.            All right.            The Office of Research and
 16       Development is the scientific arm of the agency.                              They do
 17       the research, they do the assessment methodology.                              That
 18       is work that I did.               I was in risk assessments.                 They are
 19       the scientific arm of the agency.                               They are divided into
 20       three national laboratories and two national centers.
 21       Now, three national centers, okay.
 22                                  The other offices are called essentially
 23       called program offices, so there is the Office of Water,
 24       the Office of Air and Radiation, the Office of Solid
 25
                                 Draft Copy
          Waste and the Office of Toxic Substances -- Prevention,


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D'Ulisse v. Asbestos - ROUGH DRAFT                                                  Herman Gibb
August 1, 2006                                                                    ROUGH DRAFT


                                                                                       Page 196

   1      Pollution prevention on Toxic Substances.
   2                   Q.            So, you were under the Office of
   3      Research and Development?
   4                   A.            I was under the Office of Research and
   5      Development.
   6                   Q.            Is that analogous to NIOSH, the National
   7      Institute for Occupational Safety and Health with respect
   8      to the function they serve for OSHA?
   9                   A.            In a sense I guess you can say that.              We
 10       did a -- I think that's a reasonable analogy.                     The
 11       difference there, of course, is that NIOSH is part of the
 12       Department of Health and Human Services.                     OSHA is part of
 13       the Labor Department.
 14                    Q.            I understand.            In terms of the function,
 15       NIOSH serves as the research arm of OSHA.                     Does it not?
 16                    A.            Correct.
 17                    Q.            And to the extent that you have
 18       mentioned, the Office of Research and Development serves
 19       as the research arm of EPA, correct?
 20                    A.            Right.
 21                    Q.            It is analogous in that sense?
 22                    A.            Right.
 23                    Q.            EPA does not regulate or access risks
 24       for any occupational exposures to any substances.
 25
                                 Draft Copy
                                     Is that fair to say?


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August 1, 2006                                                             ROUGH DRAFT


                                                                                 Page 197

   1                    A.           To some extent it could -- there are,
   2      for example, pesticide applicators, I mean those are
   3      workers that the EPA regulates the work that they do.
   4                    Q.           Other than that?
   5                    A.           I can't think of other than that.
   6                                 There may be other instances that I am
   7      just not thinking of or just not aware that.                But, there
   8      are situations where EPA regulates things that would be
   9      considered occupational exposures.
 10                     Q.           But, that is not their primary mission
 11       at EPA?
 12                     A.           No.
 13                     Q.           Have you ever read any NIOSH documents
 14       with respect to, let's make it as general as possible,
 15       asbestos.
 16                     A.           I have seen NIOSH documents.      I mean,
 17       I've looked at them, but it's been some time.
 18                     Q.           Have you looked at them with respect to
 19       your litigation work?
 20                     A.           No.
 21                     Q.           What would have occasioned you to look
 22       at NIOSH asbestos documents in your work with the EPA?
 23                     A.           Only out of pure academic interest to
 24       see what NIOSH might have said about something.
 25                     Q.
                                 Draft Copy
                                     Did you ever read any NIOSH documents


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                        Page 198

   1      that relate to asbestos in brakes?
   2                    A.           Not that I recall.
   3                    Q.           Was your highest rank at the EPA
   4      accounting senior science advisor?
   5                    A.           I was, I guess, senior science advisor
   6      associate director for health and assistant center
   7      director.
   8                    Q.           Okay.
   9                                 If you look at your resume.               Maybe I am
 10       missing.         Your last title, which I am assuming was your
 11       most recent, was acting senior science advisor.                         Is that
 12       correct?
 13                     A.           That's correct.
 14                     Q.           And before that you were accounting as
 15       associate director for health?
 16                     A.           Correct.
 17                     Q.           Which is a higher position in the chain
 18       of command at the EPA?
 19                     A.           I think they are probably about roughly
 20       similar.
 21                     Q.           So, when you became acting senior
 22       science advisor, it was a lateral move?
 23                     A.           It was lateral, but it was only for a
 24       short period of time before I left.                         I was probably, you
 25       know, for six months.
                                 Draft Copy
                                       Priority One Court Reporting
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August 1, 2006                                                            ROUGH DRAFT


                                                                                Page 199

   1                   Q.            How long had you been acting associate
   2      director for health?
   3                   A.            Probably about 18 months, something like
   4      that.
   5                   Q.            How many associate directors are
   6      there -- strike that.
   7                                 The acting associate director for health
   8      was in a particular center, center of risk assessment?
   9                   A.            Correct.
 10                    Q.            How many associate directors are there
 11       in the center for risk assessment, well, at the time that
 12       you were at the EPA?
 13                    A.            Two.    One is for health and one is for
 14       ecology.
 15                    Q.            Why were you acting associate director
 16       as opposed to associate director?
 17                    A.            Well, partly because we were in a
 18       transition period.            We hadn't -- the director was
 19       acting -- the director had been acting for about three
 20       years, and we were just in a period of transition.
 21                    Q.            Is the paragraph on your resume where it
 22       talks about kind of a summary where you write what your
 23       experience was, is that accurate?
 24                    A.            Yes.
 25                    Q.
                                 Draft Copy
                                     There is a mention of a study on lung


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                       Herman Gibb
August 1, 2006                                                                         ROUGH DRAFT


                                                                                             Page 200

   1      cancer mortality and clinical irritation among chromate
   2      production workers.               Do you see that?
   3                   A.            Yes.
   4                   Q.            You have written, have you not, that
   5      clinical irritations from chromium occurred, meaning they
   6      were caused, by the chromium based on case reports.                           Is
   7      that correct?
   8                   A.            No.
   9                   Q.            You have never written that?
 10                    A.            No.
 11                                  Are you referring to the study that I
 12       conducted?
 13                    Q.            Have you ever written anywhere that
 14       based on case reports there was a link between chromium
 15       causing irritation?
 16                    A.            Now, are you referring to the paper
 17       which I wrote, the study that I wrote?                          Are you referring
 18       to --
 19                    Q.            I am not referring to anything --
 20                    A.            -- the introduction to the paper?
 21                    Q.            I am asking you a question.
 22                    A.            I may have said in the study that I had
 23       been associated in case reports.                           But, we did a study to
 24       evaluate on a symptomatic basis whether exposure was
 25       related to irritation.
                                 Draft Copy       So, it is possible that I


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                        Page 201

   1      referred to case reports, but only as one does, as an
   2      epidemiologist would do, and establish a hypothesis to
   3      run a test.           It may have been done in that context, but
   4      in the context which I think you are -- it may have been
   5      done in that context.
   6                    Q.           Have you ever written in any of your
   7      papers, or book chapters, or presentations actually in
   8      writing that case reports are only valuable for
   9      generating hypothesis?
 10                     A.           Have I written that?               Are only valuable
 11       for generating hypothesis, I have written that.
 12                     Q.           Can you tell me where?
 13                     A.           I think as the -- in the EPA carcinogen
 14       risk assessment guidelines, it says something to that
 15       effect about generating hypotheses.                         I wrote -- I am
 16       author for the principles for the assessment of risk to
 17       human health from exposure to chemicals which I discuss
 18       case reports.
 19                     Q.           Just so you don't get off on a tangent,
 20       I am not asking if there were articles where you
 21       discussed case reports --
 22                                  MR. LERNER:          Let him finish
 23                     what he is saying.            If you don't like
 24                     it then -- -
 25
                                 Draft Copy
                                     MR. KRISTAL:           It is not liking


                                       Priority One Court Reporting
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August 1, 2006                                                                          ROUGH DRAFT


                                                                                             Page 202

   1                   it.      I am just trying to save some
   2                   time so we can get him out of here.
   3                   Q.            I am not asking whether you've ever
   4      written about case reports.                   I am asking you if you have
   5      written that case reports are only valuable for
   6      generating hypothesis?
   7                   A.            That exact statement?
   8                   Q.            Yes.
   9                   A.            I don't know if I ever said that exact
 10       statement.          I have made comments.                    I don't know that I
 11       have ever made that exact statement, but I have made
 12       comments about the value of case reports and I have done
 13       it in scientific literature that has been peer reviewed
 14       and it is there for anybody to read.
 15                    Q.            Did I understand you to say that, what I
 16       am marking as, another document that you brought, Exhibit
 17       6, the March 2005, "Guidelines for Carcinogen Risk
 18       Assessment" is something that you authored?
 19                                  (Plaintiff's Exhibit 6 was
 20                    marked for identification.)
 21                    A.            This document has gone through
 22       considerable -- I mean, it's been a long time in coming.
 23       The draft of this is in 1999.                     You know.        There were some
 24       changes, but not in that section on evaluation of human
 25
                                 Draft Copy
          data, and I was an author of part of this, in the section


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                           Herman Gibb
August 1, 2006                                                                             ROUGH DRAFT


                                                                                               Page 203

   1      on human data.
   2                   Q.            Okay.
   3                                 I haven't read it, so I don't want to --
   4      let me see if I am understanding what you are saying.
   5                                 There is a section in the "Guidelines
   6      for Carcinogen Risk Assessment" that discusses human data
   7      as a generic topic in risk assessment?
   8                   A.            Human data.
   9                   Q.            The evaluation of human data?
 10                    A.            Right.
 11                                  You probably should know, you know, that
 12       the "Guidelines for Carcinogen Risk Assessment" had gone
 13       through several versions.                 The first version was in 1976.
 14       There was another version in '86.                            There was another
 15       draft in 1999 under which the agency operated.                            And,
 16       finally, you know, this is the most recent version of the
 17       Guidelines.
 18                    Q.            All I am trying to understand is if you
 19       assisted in writing the section on human data for the
 20       Guidelines for Carcinogen Risk Assessment"?
 21                    A.            I was a participant, right, in the
 22       writing of the guidelines.
 23                    Q.            Okay.
 24                    A.            But, also I can refer you to the
 25       principles for --
                                 Draft Copy
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                                                                                Page 204

   1                   Q.            I am really trying to get you out of
   2      here on time, so.            If I want you to illuminate, I will
   3      not try to stop you.
   4                   A.            Fine.
   5                   Q.            You are entitled to say what you want.
   6                   A.            I am interested in getting out on time
   7      as well.
   8                   Q.            For which defendants in the Alfred
   9      D'ulisse case did you write your report?
 10                                  What was your understanding of whom had
 11       retained you?
 12                    A.            I can't remember if it was General
 13       Motors and Ford and Daimler Chrysler or -- I just read --
 14       reviewed the reports.              I just reviewed the information.
 15                    Q.            Well, who do you intend on sending your
 16       bills to?
 17                    A.            Well, the bills would be sent to McGuire
 18       Woods.
 19                    Q.            Are there any exposures to asbestos that
 20       Mr. D'ulisse had that you believe was a substantial
 21       factor in the development of his mesothelioma?
 22                    A.            Yes.
 23                    Q.            What exposures or exposure are or is
 24       those?
 25                    A.
                                 Draft Copy
                                     I think it is the exposure that he had


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                                                                                              Page 205

   1      at R.G. White where he was building ovens.
   2                   Q.            Which exposures specifically while
   3      Mr. D'ulisse was at R.G. White building ovens do you
   4      believe substantially contributed to his mesothelioma?
   5                   A.            Well, he was involved in putting in the
   6      refractory brick into the ovens.                           He was involved in
   7      putting the insulation around the ovens.                           Those, I think,
   8      are the most significant exposures.
   9                   Q.            My question is, other than -- strike
 10       that.
 11                                  Other than exposure to refractory brick
 12       and insulation, are there any other exposures that you
 13       believe contributed to Mr. D'ulisse's mesothelioma?
 14                    A.            I think those are the primary.
 15                    Q.            Again, I am not asking you about primary
 16       because I want to know the full mountain here, are there
 17       any other exposures, other than his exposure to
 18       refractory brick and insulation while he worked at R.G.
 19       White, that you believe contributed to his mesothelioma?
 20                    A.            No.
 21                    Q.            Are you saying that those two exposures
 22       combined contributed to his mesothelioma or are you
 23       saying that each of them individually contributed -- let
 24       me ask it a different way.
 25
                                 Draft Copy
                                     Is it your opinion that Mr. D'ulisse's


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   1      exposure to dust from the refractory brick substantially
   2      contributed to his mesothelioma?
   3                   A.            Yes.
   4                   Q.            Is it your opinion that Mr. D'ulisse's
   5      exposure to dust from the insulation was a substantial
   6      contributing factor to the development of his
   7      mesothelioma?
   8                   A.            Yes.
   9                   Q.            On what basis do you believe that
 10       Mr. D'ulisse's exposure to dust from the refractory brick
 11       was a substantial contributing factor to his
 12       mesothelioma?
 13                    A.            We know that people engaged in ovens and
 14       furnaces have an increased risk.
 15                    Q.            Anything else?
 16                    A.            No.
 17                    Q.            On what basis do you believe that
 18       Mr. D'ulisse's exposure to insulation at R.G. White while
 19       building ovens was a substantial contributing factor to
 20       his mesothelioma?
 21                    A.            We know that people engaged in
 22       insulation work have increased risk of mesothelioma.
 23                    Q.            Anything else?
 24                    A.            No.
 25                    Q.
                                 Draft Copy
                                     On what basis do you say the refractory


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   1      brick contained asbestos?
   2                   A.            Refractory brick generally contains
   3      asbestos, but we certainly know people that work in
   4      furnaces have an increased risk of mesothelioma.
   5                   Q.            You already said that as the reason you
   6      believe the exposure to refractory brick was a
   7      substantial contributing factor to his mesothelioma,
   8      correct?
   9                   A.            I am sorry.
 10                    Q.            Strike that question.
 11                                  Is it your opinion that the refractory
 12       brick to which Mr. D'ulisse was exposed contained
 13       asbestos?
 14                    A.            Is it my opinion that the refractory
 15       brick contained asbestos?
 16                    Q.            Yes.
 17                    A.            Yes.
 18                    Q.            What type of asbestos did the refractory
 19       brick that Mr. D'ulisse was exposed to contain --
 20                    A.            I can't tell --
 21                    Q.            -- in your opinion?
 22                    A.            I can't tell you.
 23                    Q.            Well, what are the options?
 24                    A.            Well, it could be amphiboles, it could
 25       be chrysotile.
                                 Draft Copy
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   1                   Q.               Okay.
   2                   A.               But --
   3                   Q.               You have no opinion one way or the other
   4      as to the type of asbestos?
   5                   A.               I presume that it was amphibole
   6      exposure.
   7                   Q.               What do you presume that based on?
   8                   A.               I don't have a -- I don't know.              In
   9      fact, I can't even be sure about, you know, exactly what
 10       type it was.               But, I do know that, again, workers that
 11       work in that occupation have an increased risk of
 12       mesothelioma.              So, regardless of what the type is, I
 13       still know that that is an occupational risk.                          So, I
 14       can't be specific as to what the type was.                          I can't be
 15       sure it was any particular type.                           What I do know is that
 16       people who work in furnaces and ovens have an increased
 17       risk of mesothelioma.
 18                    Q.              And what are you basing that opinion on,
 19       that people who work in ovens and furnaces have an
 20       increased risk of mesothelioma?
 21                    A.              Because we have several studies and we
 22       have indicated those.                 I have indicated those here.
 23                    Q.              Which studies here support that opinion?
 24                    A.              Well, I think it is the Teschke.
 25
                                 Draft Copy
                                       MR. KRISTAL:            T-E-S-C-H-K-E.


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   1                   A.            The McDonald study.
   2                   Q.            I am sorry?
   3                   A.            McDonald and McDonald study.
   4                   Q.            Okay.
   5                                 Any other study?
   6                   A.            Not of the ones that I studied.      There
   7      are other studies.
   8                   Q.            Name one.
   9                   A.            I can't.       You know, I can't name one off
 10       the top of my head.            There are other studies, you know,
 11       that indicate that.
 12                    Q.            Were the studies that you say show an
 13       increased risk of mesothelioma for people working with
 14       ovens and furnaces look at people who were manufacturing
 15       the types of ovens that Mr. D'ulisse was building?
 16                    A.            I don't know that they were necessarily
 17       the manufactured type of furnace he was building.
 18                    Q.            Well, let's be clear on that
 19       terminology.
 20                    A.            Yes.
 21                    Q.            Is there a difference between a furnace
 22       and an oven?
 23                    A.            I think it's -- they are both high
 24       temperature operations which there is refractory brick --
 25                    Q.
                                 Draft Copy
                                     Do you --


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   1                   A.            -- put in.
   2                   Q.            I am sorry if I may have interrupted an
   3      answer.
   4                                 Do you know if anyone has ever studied
   5      exposures to people who were working and building the
   6      types of ovens that Mr. D'ulisse was building?
   7                   A.            I don't know that there is anything on
   8      the specific type of oven that he was building.                       But, in
   9      general, we know that they are hot temperature
 10       operations.           These other hot temperature operations use
 11       refractory brick such the type of refractory brick that
 12       may well have been used here.                     We do know that people
 13       that have cut insulation, fit insulation, as he did, have
 14       increased risk of exposure.                   It may not be exactly the
 15       same, but I think they are similar enough that it would
 16       be prudent that one has to believe that these exposures
 17       were associated with an increased risk of mesothelioma in
 18       Mr. D'ulisse.
 19                    Q.            How many different types of firebrick
 20       were in existence during the period of time that
 21       Mr. D'ulisse worked at R.G. White?
 22                    A.            How many types of fiber?
 23                    Q.            How many types of refractory brick.
 24                    A.            Oh, refractory brick.             I don't know.
 25                    Q.
                                 Draft Copy
                                     How many different manufacturers of


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                                                                                                Page 211

   1      refractory brick were there at the time that Mr. D'ulisse
   2      worked at R.G. White?
   3                   A.            I don't know.
   4                   Q.            Can you tell me the composition of any
   5      specific type of refractory brick during the time that
   6      Mr. D'ulisse worked at R.G. White?
   7                   A.            No.      I can't tell you the specific type
   8      of any of them.            But, I think in general we know that
   9      refractory brick has contained asbestos and workers,
 10       again, in high temperature operations where there's, you
 11       know, in ovens and furnaces come to have an increased
 12       risk.
 13                    Q.            Do you know what percent of refractory
 14       brick was asbestos in any particular type of refractory
 15       brick that was manufactured during the time that
 16       Mr. D'ulisse worked at R.G. White?                              Was it one percent,
 17       five percent, 20 percent, 25 percent?
 18                    A.            I don't know exactly.
 19                    Q.            What literature have you looked at with
 20       respect to refractory brick, if any?
 21                    A.            What, the composition of refractory
 22       brick?       Is that what you are talking about?
 23                    Q.            Anything to do with refractory brick,
 24       have you ever looked at any literature that discussed
 25       refractory brick?
                                 Draft Copy
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                                                                                     Page 212

   1                   A.            No, not composition of refractory brick.
   2                   Q.            How about anything about refractory
   3      brick?       Have you ever looked at any literature that
   4      discussed refractory brick?
   5                   A.            I looked at literature that discussed
   6      refractory brick where there was evidence of an increased
   7      risk of mesothelioma and the workers who worked around
   8      high temperature operation where there was refractory
   9      brick.
 10                    Q.            Are you done?
 11                    A.            Yes.
 12                    Q.            And those studies are the Teschke study
 13       and the McDonald and McDonald study?
 14                    A.            Those are two of the studies.           I
 15       mentioned there are other studies, and I can't give you
 16       off the top of my head the names of other studies.
 17                    Q.            The other studies that you are talking
 18       about are epidemiology studies?
 19                    A.            Epidemiology studies.
 20                    Q.            Have you ever looked at any literature
 21       of any kind that was not an epidemiological study that
 22       mentions or discusses refractory brick?
 23                    A.            That is not an epidemiology study?
 24                    Q.            Correct.
 25                    A.
                                 Draft Copy
                                     No, I can't.           Not with regard to


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   1      composition, no.
   2                   Q.            On what basis are you saying that
   3      refractory brick generally contained asbestos?               What is
   4      your basis for saying that?
   5                   A.            In discussion with industrial hygienists
   6      may have told me that refractory brick was well-known to
   7      contain asbestos.
   8                   Q.            How many industrial hygienists have you
   9      discussed that subject with?
 10                    A.            One, perhaps two.
 11                    Q.            When did you have this discussion with
 12       those one or two industrial hygienists in which they
 13       mention that refractory brick generally contained
 14       asbestos?
 15                    A.            Perhaps in the last year or so.
 16                    Q.            And was that pursuant to your work on
 17       this case?
 18                    A.            No in this case, no.
 19                    Q.            Who are these one or two industrial
 20       hygienists?
 21                    A.            Dr. Peter Lees.
 22                    Q.            Who?
 23                    A.            Peter Lees, L-E-E-S.
 24                    Q.            Who else?
 25                    A.
                                 Draft Copy
                                     It may have been, and I am not sure


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                                                                                        Page 214

   1      about this, I might have mentioned it to Sheila McCarthy.
   2                   Q.            Now, who employs Dr. Lees -- L-E-E-S?
   3                   A.            L-E-E-S, right.
   4                   Q.            Who is he employed by?
   5                   A.            Johns Hopkins University.
   6                   Q.            Does he have any affiliation with
   7      Sciences?
   8                   A.            No.
   9                   Q.            Any affiliation with Exponent?
 10                    A.            No.
 11                    Q.            Sheila McCarthy?
 12                    A.            She was with Sciences.
 13                    Q.            Now, she is with?
 14                    A.            Now, she is at Exponent.              If I spoke
 15       with her, and I am not even sure I spoke with her about
 16       it, it would have been prior to that.
 17                    Q.            The only person that you are sure of
 18       speaking with about whether or not refractory brick
 19       contained asbestos was Dr. Peter Lees at John Hopkins
 20       University?
 21                    A.            That's right.
 22                    Q.            What occasioned you to have that
 23       discussion with him?
 24                    A.            It may have been a discussion with
 25
                                 Draft Copy
          regard to -- I am not sure of the exact.                        It may have


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                                                                                 Page 215

   1      been something -- there was, not this case, another case,
   2      that I think I may have spoken to him about refractory
   3      brick in a coke oven.
   4                   Q.               Coke ovens are different than deponding
   5      ovens, D-E-B-O-N-D-I-N-G?
   6                   A.               Coke ovens are different in that they
   7      produce coke, but they are still high temperature
   8      operation.
   9                   Q.               What is your definition of high
 10       temperature operation?
 11                    A.              Well, in this case, as I recall, the
 12       temperatures here are kept between 500 and 1,000 degrees
 13       centigrade.           If they were making a bonding oven, then it
 14       could go up to 2,500 degrees centigrade.
 15                    Q.              And that is all from Mr. D'ulisse's
 16       deposition?
 17                    A.              That is from Mr. D'ulisse's deposition.
 18                    Q.              How about coke ovens?
 19                    A.              Coke ovens, I am not sure of the
 20       temperature.               They are probably at least in the
 21       neighborhood of 1,000.
 22                    Q.              Have you talked about this case with any
 23       of the other experts who have been named in this case
 24       other than Mary Jane Teta?
 25                    A.
                                 Draft Copy
                                       In this case?


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   1                   Q.            Yes.
   2                   A.            I didn't know that Mary Jane Teta was --
   3                   Q.            Actually, she is not in this case.   She
   4      is in another case that is going to be tried with this
   5      case.
   6                                 Have you spoken with Dr. Teta about the
   7      D'ulisse case?
   8                   A.            No.
   9                   Q.            Have you spoken to Dr. Teta about the
 10       case that she is working on?
 11                    A.            No.
 12                    Q.            Have you asked any of the attorneys if
 13       there are any industrial hygienists that they have
 14       designated as experts in the D'ulisse case?
 15                    A.            No.
 16                    Q.            What leads you to believe that the --
 17       strike that.
 18                                  What type of insulation was Mr. D'ulisse
 19       working with?
 20                    A.            What type of insulation?
 21                    Q.            Yes.
 22                    A.            He described insulation around the
 23       furnaces --
 24                    Q.            Are there different types of insulation?
 25                    A.
                                 Draft Copy
                                     There may be, but I think the


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                                                                                           Page 217

   1      insulation -- I suppose there are.                           But, he described
   2      insulation, and I am thinking of the fact that insulation
   3      workers, pipefitters and so forth, you know, have used
   4      insulation.           There may be different types, but those type
   5      of workers, those kind of workers, have an increased risk
   6      of mesothelioma.
   7                   Q.            What type of asbestos do you believe was
   8      in the insulation that Mr. D'ulisse described?
   9                   A.            I don't know.
 10                    Q.            No clue?
 11                    A.            I have no idea.
 12                    Q.            If the insulation -- strike that.
 13                                  If the asbestos in the refractory brick
 14       was chrysotile and the insulation -- strike that.
 15                                  If the asbestos in the refractory brick
 16       was chrysotile and the asbestos in the insulation was
 17       chrysotile, would it still be your opinion that those
 18       exposures individually and together contributed to
 19       Mr. D'ulisse's mesothelioma?
 20                    A.            I think if -- you know it depends on
 21       what the form the chrysotile was in, but, you know, I
 22       think that -- I think that, you know, people -- again,
 23       the occupation of insulation worker and oven worker,
 24       those have increased risks.                   I am not sure, you know,
 25
                                 Draft Copy
          with regard to what -- I mean, I would have to examine


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   1      whether the chrysotile was -- chrysotile in brakes, you
   2      know, is different because it's been -- because it's gone
   3      up to high temperature and it's short, and I don't know
   4      that is necessarily the same.
   5                   Q.            What factors would you be looking at
   6      with respect to the chrysotile in order for you to say
   7      that the refractory brick and the insulation contributed
   8      to Mr. D'ulisse's mesothelioma if it was only chrysotile
   9      in those products?            What would you be looking at?
 10                    A.            Would you repeat the question, please?
 11                    Q.            Sure.
 12                                  When I asked you the question about the
 13       chrysotile, you said it depends on what form the
 14       chrysotile was in, right?
 15                                  You need to give an answer to that
 16       question?
 17                    A.            What's the question?
 18                    Q.            You said it depends on what form the
 19       chrysotile was in.
 20                    A.            Right.
 21                    Q.            And what forms are you talking about
 22       where you would say it was a substantial contributing
 23       factors and what forms of chrysotile would you say it
 24       wasn't a substantial contributing factor?
 25                    A.
                                 Draft Copy
                                     I really can't -- you know, I don't


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   1      think I can say that -- make a distinction with regard to
   2      what forms were and what forms weren't.                          I think the most
   3      important thing here in evaluating the data is the
   4      occupational exposure that he had.                           That, to me, is more
   5      important than exactly what form it was in, what form the
   6      chrysotile or the asbestos was.                       That is the more
   7      relevant issue.
   8                   Q.            So, how often was Mr. D'ulisse -- strike
   9      that.
 10                                  Are you saying that if someone works in
 11       a particular occupation and that occupation is shown
 12       epidemiologically to have an increased risk for a
 13       disease, if that person gets the disease, then, it must
 14       have been the exposures he had at that occupation that
 15       caused the disease?
 16                    A.            It's a rather broad question.                You are
 17       saying -- what I am saying to you is, that I think
 18       that -- I am going to -- I would relate what Mr. D'ulisse
 19       did to what I know about occupations that show an
 20       increased risk of mesothelioma, and I am taking
 21       Mr. D'ulisse's exposure doing fitting insulation working
 22       in an over even and relating that to his mesothelioma.
 23       And I am saying that he got -- I can't -- you know, I am
 24       saying that that is where I believe he had an increased
 25
                                 Draft Copy
          risk was from those occupations.


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   1                   Q.            If the asbestos in the refractory brick
   2      was chrysotile less than five microns in length, would it
   3      still be your opinion that Mr. D'ulisse's mesothelioma
   4      was -- strike that.
   5                                 If the chrysotile in the refractory
   6      brick was less than five microns in length, would it
   7      still be your opinion that that exposure was a
   8      substantial contributing factor to his mesothelioma?
   9                   A.            Is chrysotile in brick less than -- I
 10       mean, is the asbestos in brick chrysotile and is it less
 11       than five microns in exposure --
 12                    Q.            Why would you need to know that?
 13                    A.            Well, you have to -- I think you have to
 14       look at what your understanding -- if it was chrysotile
 15       and it was less than five microns, you know, and he did
 16       oven work, I would say that, you know, he -- based on
 17       occupational histories, this was the -- you know, this
 18       was the risk that I believe that he developed
 19       mesothelioma from.           I mean, if the -- we can speculate
 20       all day about what kind of asbestos was in the brick and
 21       all that sort of thing, and we can put hypotheticals as
 22       to what if it was less than five microns, what if it was
 23       this, what if it was chrysotile, what if it was this.
 24       But, I think when it comes down to final analysis, you
 25
                                 Draft Copy
          have to look and see what were his occupations and how


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                                                                                   Page 221

   1      did they relate to what we know about increased risk to
   2      mesothelioma from occupational exposure to asbestos.
   3                   Q.            If the asbestos in the insulation was
   4      chrysotile less than five microns in length, would it
   5      still be your opinion that Mr. D'ulisse's exposure to
   6      that insulation was a substantial contributing factor to
   7      the development of his mesothelioma.
   8                   A.            Didn't you just ask that?
   9                   Q.            No.      I asked about the refractory brick.
 10                    A.            Okay.        You said this about the
 11       insulation?
 12                    Q.            Correct.
 13                    A.            The same question, okay.
 14                                  Again, it is the same thing.         We can
 15       speculate as to what kind of asbestos it was, whether it
 16       was less than five microns, whether it was whatever,
 17       whether it was chrysotile, whether it was amphibole,
 18       whatever it was.            What I am saying to you is that the
 19       occupational exposure which Mr. D'ulisse experienced that
 20       relates to his mesothelioma risk is the one working with
 21       insulation and working with ovens and furnaces.
 22                    Q.            Whether the asbestos in the refractory
 23       brick was chrysotile or whether it was amphibole, whether
 24       it was less than five microns in length or more than five
 25
                                 Draft Copy
          microns in length, it doesn't change your opinion about


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                                                                                              Page 222

   1      its contribution to his mesothelioma.                            Is that correct?
   2                   A.            That is correct.                  I mean, I think it
   3      is -- the importance for me here is knowing what his
   4      occupational history was and relating that occupational
   5      history to what I know about mesothelioma risk.                            I also,
   6      though, know that if -- what we do know about chrysotile
   7      exposure, since you have mentioned chrysotile exposure,
   8      what we do know about fiber length, if we get into the
   9      issue of brake mechanics, is that it is going to be less
 10       than five microns, it is known to change at high
 11       temperature, and that is consistent with what we know
 12       about risk of chrysotile versus other forms of asbestos.
 13       So, while we can conjecture and hypothesize about what
 14       might have been in the refractory brick, we don't know
 15       that.       But, we do know that those occupational categories
 16       do have an increased risk of mesothelioma.
 17                    Q.            Whether the asbestos in the insulation
 18       was chrysotile or amosite or less than five microns or
 19       greater than five microns, it would still be your opinion
 20       that Mr. D'ulisse's exposure to the insulation was a
 21       substantial contributing factor to his mesothelioma?
 22                                  MR. LERNER:          That is probably
 23                    the third time you've asked that
 24                    question.
 25
                                 Draft Copy
                                     MR. KRISTAL:           The other one I


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   1                     asked about the refractory brick?
   2                                 MR. LERNER:            Actually, you've
   3                     done it both.
   4                     A.          It was both.
   5                     Q.          Can you answer that question?
   6                                 MR. LERNER:            I think he
   7                     already has.
   8                                 I am going to ask him not to
   9                     answer.
 10                                  MR. KRISTAL:             I don't think he
 11                      has?
 12                                  MR. LERNER:            Jerry, I
 13                      respectfully disagree.                 You have gone
 14                      through both ways.
 15                                  MR. KRISTAL:             Not with respect
 16                      to chrysotile and amosite and five --
 17                                  MR. LERNER:            I think you have.
 18                      Either that or I am hallucinating.
 19                                  MR. KRISTAL:             No.    I think
 20                      you --
 21                                  MR. LERNER:            I could be
 22                      hallucinating now.
 23                                  MR. KRISTAL:             You might be.
 24                                  May I ask that question again?
 25
                                 Draft Copy
                         I really didn't ask that question.


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D'Ulisse v. Asbestos - ROUGH DRAFT                                               Herman Gibb
August 1, 2006                                                                 ROUGH DRAFT


                                                                                   Page 224

   1                   Q.            Whether the asbestos in the insulation
   2      was chrysotile or amosite or less than five microns or
   3      greater than five microns, it would still be your opinion
   4      that that exposure contributed to Mr. D'ulisse's
   5      mesothelioma, correct?
   6                                 MR. LERNER:          The insulation?
   7                                 MR. KRISTAL:           Yes.
   8                   A.            Yes.
   9                   Q.            Is the brake dust that is contained
 10       inside the brake drum when the tire is removed the same
 11       as the brake dust that is created when somebody is
 12       sanding, or filing or grinding on a new brake?
 13                    A.            Is it chemically the same?         Is that what
 14       you are asking?
 15                    Q.            Yes.
 16                    A.            I don't know that.
 17                    Q.            Is all asbestos in any form of brake
 18       dust, whether it is from a brake drum, whether it is from
 19       sanding or grinding it or any other source, less than
 20       five microns in length?
 21                    A.            My understanding is that brake dust is
 22       less than five microns in length.
 23                    Q.            All asbestos in all forms of brake dust
 24       are less than five microns in length?
 25                    A.
                                 Draft Copy
                                     My understanding is that the majority,


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                     Herman Gibb
August 1, 2006                                                                       ROUGH DRAFT


                                                                                         Page 225

   1      certainly the majority of them are.
   2                   Q.             That is why I am asking the question.
   3                                  Is it your opinion that all of the
   4      asbestos in any form of dust from asbestos-containing
   5      brakes is less than five microns?
   6                   A.             I don't know that it is all less than
   7      five microns.              My understanding is that certainly most of
   8      it is.
   9                   Q.             What percent in your opinion --
 10                    A.             I don't know.
 11                    Q.             When you said that the asbestos in brake
 12       dust is changed at high temperatures, did you say that?
 13                    A.             Yes.
 14                                   MR. LERNER:           Why don't you ask
 15                    him a question instead of asking what
 16                    he said.
 17                                   MR. KRISTAL:            I am asking --
 18                    well, I don't need to ask the question
 19                    if he didn't say that.
 20                                   MR. LERNER:           So, you are
 21                    saying that you don't want to ask a
 22                    question a second time?                    Is that your
 23                    policy today?
 24                                   MR. KRISTAL:            No.        I need to
 25
                                 Draft Copy
                       know if that is his opinion.


                                          Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                     Page 226

   1                                 MR. LERNER:             Why don't you ask
   2                   a question so we are clear on what you
   3                   are asking.
   4                   Q.            Does all asbestos that is in a new brake
   5      when it's manufactured convert to something else because
   6      of high temperatures?
   7                   A.            My understanding is that it will convert
   8      to fosterite, and so at least biologically inert.
   9                   Q.            When somebody is sanding a new asbestos
 10       brake pad, are you saying, in your opinion, all of the
 11       asbestos that is being sanded is converted to fosterite?
 12                    A.            No.      The fosterite is happening as the
 13       result of the temperature change, the high temperature.
 14                    Q.            Where is that high temperature being
 15       generated?
 16                    A.            From the braking action.
 17                    Q.            So, it is only the dust, in your
 18       opinion, that comes from inside the brake drum off of the
 19       brake that is being removed that converts to fosterite.
 20       Is that right?
 21                    A.            Would you repeat that, please?
 22                    Q.            Sure.
 23                                  MR. LERNER:             And maybe you can
 24                    ask it as a question rather than a
 25
                                 Draft Copy
                       statement, please.


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                           Herman Gibb
August 1, 2006                                                             ROUGH DRAFT


                                                                               Page 227

   1                   Q.            In your opinion, does asbestos that is
   2      contained in asbestos dust when a mechanic is sanding an
   3      asbestos-containing brake convert to fosterite?
   4                   A.            Asbestos from a brake -- you are saying
   5      asbestos from a brake when it is being sanded converts to
   6      fosterite.          At what point are you saying it converted to
   7      fosterite?
   8                   Q.            I am asking you if you have an opinion
   9      at any point in time while a brake mechanic is sanding a
 10       new asbestos-containing brake whether any of the asbestos
 11       converts to fosterite?
 12                    A.            From sanding operation, is that the
 13       question?
 14                    Q.            Correct.
 15                    A.            I don't know that it converts to
 16       fosterite from the sanding operation.
 17                    Q.            How about in the grinding operation?
 18                    A.            I suppose, I mean, if there's
 19       temperatures that can change it it could change to
 20       fosterite.
 21                    Q.            I am asking you, do you have an opinion
 22       as you sit here to a reasonable degree of certainty as to
 23       whether any asbestos in an asbestos-containing brake gets
 24       converted to fosterite other than the actual process of
 25       applying the brakes?
                                 Draft Copy
                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                        Page 228

   1                   A.            I don't have an opinion on that.
   2                   Q.            Is all of the asbestos in an
   3      asbestos-containing brake converted to fosterite during
   4      the braking process?
   5                   A.            My understanding is most of it is.
   6                   Q.            Now, are you talking about the dust that
   7      is in the brake drum or the actual asbestos that is in
   8      the pad coming off the car?
   9                   A.            The asbestos in the pad.
 10                    Q.            Let me see if I am understanding you.
 11                                  MR. LERNER:             I think you need
 12                    to clarify your question because it is
 13                    real confusing right now.
 14                    Q.            An asbestos-containing brake, have you
 15       ever heard it referred to as a pad or a lining?
 16                    A.            Yes.
 17                    Q.            And how thick approximately is an
 18       asbestos-containing lining?
 19                    A.            I don't know.               I can't be sure.
 20                    Q.            Are you saying that it's only the
 21       asbestos on the surface of the lining that is then
 22       falling inside the brake drum that is converting to
 23       fosterite during the braking process?
 24                    A.            No.      I haven't said that.
 25                    Q.
                                 Draft Copy
                                     Are you saying that all of the asbestos


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                             Herman Gibb
August 1, 2006                                                               ROUGH DRAFT


                                                                                 Page 229

   1      throughout the whole thickness of the pad becomes
   2      converted to fosterite during the braking process?
   3                   A.            My understanding is that most of it is
   4      converted to fosterite.                There is some evidence to
   5      suggest that even before reaching temperatures where
   6      fosterite occurs that it becomes biologically irrelevant
   7      or inert even temperatures prior to the conversion to
   8      fosterite.
   9                   Q.            When you said "it," most of it converts
 10       to fosterite and then you went on to say what you said,
 11       is the "it" all of the asbestos throughout the entire
 12       asbestos-containing brake lining?
 13                    A.            My understanding is that most of it is.
 14                    Q.            On what are you basing that
 15       understanding?
 16                    A.            Just from the papers that I have read.
 17                    Q.            Which papers?
 18                    A.            I think it is in Wong, and I believe it
 19       is mentioned in Langer.
 20                    Q.            That all of the asbestos or most --
 21       strike that.
 22                                  Are you saying that the Wong -- strike
 23       that.
 24                                  Any other source for your belief about
 25
                                 Draft Copy
          the conversion to fosterite other than the Wong paper and


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                           Herman Gibb
August 1, 2006                                                             ROUGH DRAFT


                                                                               Page 230

   1      the Langer paper?
   2                    A.           Well, they themselves have cited other
   3      references for that, so I am not going to tell you other
   4      references.           I can't, you know, recall other references,
   5      but they have said it.
   6                                 MR. KRISTAL:           I am marking
   7                    Exhibit 7.
   8                                 (Plaintiff's Exhibit 7 was
   9                    marked for identification.)
 10                     Q.           Is this the Langer article that you are
 11       talking about, Exhibit 7?
 12                     A.           That is correct.
 13                     Q.           We are looking for the right article.
 14       For a minute we had the Wong one.
 15                                  MR. KRISTAL:           Come on.
 16                                  I am going to mark this as
 17                     Exhibit 8.
 18                                  (Plaintiff's Exhibit 8 was
 19                     marked for identification.                    )
 20                     Q.           Is this the Wong article that you are
 21       referring to?
 22                     A.           Yes.
 23                     Q.           Are you saying that if -- strike that.
 24                                  Do you know what a bulk analysis is of
 25
                                 Draft Copy
          an asbestos-containing material?


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                         Page 231

   1                                 Have you ever heard that term, bulk
   2      analysis?
   3                    A.           Yes.
   4                    Q.           What is your understanding of bulk
   5      analysis?
   6                    A.           It is where they take a collection of
   7      dust and see how much of it is asbestos.
   8                    Q.           Have you ever heard of a bulk analysis
   9      reaction where you actually take, like, a piece of
 10       insulation and analyze that to see what the composition
 11       is or how much asbestos there is or taking an asbestos
 12       brake pad and analyze it?
 13                     A.           Not for brake pad.               I have not heard
 14       that term used with regard to brake pad.
 15                     Q.           Well, can you do a bulk analysis on a
 16       brake pad to determine whether or not it contains
 17       asbestos?
 18                     A.           I think it is possible, sure.
 19                     Q.           Are you saying that if you took an
 20       asbestos-containing brake pad off a car that had been
 21       used that when you did a bulk analysis of that there
 22       would be no asbestos in the entire pad?
 23                                  MR. LERNER:           Bulk analysis of
 24                     what now?
 25
                                 Draft Copy
                                     MR. KRISTAL:            Of the pad.


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                            Herman Gibb
August 1, 2006                                                              ROUGH DRAFT


                                                                                  Page 232

   1                                 MR. LERNER:          That remains?
   2                                 MR. KRISTAL:           That's right.
   3                   A.            Are you asking me -- I don't know.      But,
   4      my understanding is that it is mostly converted to
   5      fosterite.          So, has a bulk analysis been done, are you
   6      aware, or is this bulk analysis data, or is this a
   7      hypothetical question, I guess?
   8                   Q.            Do you know if anyone has ever taken a
   9      brake lining and ashed it and analyzed it to see whether
 10       or not there was asbestos in it?
 11                    A.            I am not aware of that being done, but I
 12       guess the question will be if there's such information I
 13       would be interested to see it if there was.
 14                    Q.            Are you saying that the temperature --
 15       strike that.
 16                                  At what temperature do you believe
 17       chrysotile asbestos is converted to fosterite?
 18                    A.            I think in the paper, in Wong, yes.      I
 19       can't tell you exactly what temperature it goes if it is
 20       converted to fosterite.                But in braking the temperature
 21       goes between 700 and 800 degrees.
 22                    Q.            Fahrenheit or --
 23                    A.            Centigrade.
 24                    Q.            And that temperature --
 25                    A.
                                 Draft Copy
                                     So, it is possible that the fosterite


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                            Herman Gibb
August 1, 2006                                                              ROUGH DRAFT


                                                                                Page 233

   1      occurred before that time, but at least we know that it
   2      occurs by 700 to 800 degrees.
   3                   Q.            Is that temperature both on the surface
   4      of the brake lining and at the back of the brake lining
   5      that adheres to the brake shoe?
   6                   A.            I don't know where the temperature is
   7      taken.       I know that the temperature can reach that high.
   8                   Q.            You say in your report, during braking
   9      temperatures exceeding 700 to 800 degrees centigrade are
 10       reached and much of the chrysotile is broken down into
 11       fosterite, and you cite Langer, right?
 12                    A.            Right.      I could have said it Wong also.
 13                    Q.            Much meaning how much, ten percent, five
 14       percent, 50 percent, 90 percent?
 15                    A.            Well, according to Wong, it says
 16       "Studies have shown" -- and I will just read this
 17                                  "During braking, a temperature
 18                    in excess of 700 to 800 degrees
 19                    centigrade is reached, and the
 20                    chrysotile fibers break down to
 21                    fosterite, an anhydrous magnesium
 22                    silicate, which is non-fibrous.
 23                    Studies have shown that brake lining
 24                    dust contains extremely little
 25
                                 Draft Copy
                       recognizable chrysotile fibers which


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                              Herman Gibb
August 1, 2006                                                                ROUGH DRAFT


                                                                                  Page 234

   1                    are mostly imbedded in the plastic
   2                    bonding material, and that the amount
   3                    of if free chrysotile fibers is less
   4                    than .1 to one percent and most fibers
   5                    are less than .5 micrometers in
   6                    length."
   7      So, in answer to your question it would be somewhere
   8      between 99 and 99.9 percent.
   9                    Q.           And that is based on your reading of
 10       what Wong has written about some other studies?
 11                     A.           That is my understanding of the reading
 12       Wong, that is correct.
 13                     Q.           Have you ever read any other article or
 14       document that discusses what percent of chrysotile
 15       remains in the dust from a brake drum?
 16                                  MR. LERNER:          What do you mean
 17                     dust from a brake drum?
 18                                  MR. KRISTAL:           Dust from a
 19                     brake drum.
 20                                  MR. LERNER:          Why would that be
 21                     different from the one of the dust
 22                     that you are talking about now?                You
 23                     have to be more clear.
 24                     Q.           Do you know what a brake drum is?
 25
                                 Draft Copy
                                     MR. LERNER:          Are you --


                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                       Page 235

   1                   Q.            Do you know what a brake drum is?
   2                   A.            My understanding is that the drum
   3      expands against the wheel to cause the wheel to brake.
   4      But, I am not a mechanic, so I am not going to tell you.
   5      If I am wrong on my mechanical interpretation, so be it,
   6      but I am not a mechanic.
   7                   Q.            What other exposures to asbestos --
   8      strike that.
   9                                 What exposures to dust from
 10       asbestos-containing brakes does Mr. D'ulisse allege?
 11                    A.            What?        I am sorry.
 12                    Q.            In your report, it seems to note that
 13       Mr. D'ulisse is claiming that he was exposed to asbestos,
 14       and I am looking at the bottom of page 3, top of page 4,
 15       from handling brake shoes for six weeks when he was a
 16       foreman.
 17                    A.            Right.
 18                    Q.            Is that your understanding of what he is
 19       claiming was, his sole exposure that relates to brakes?
 20                    A.            No.      I indicated here that he thought
 21       that he had some exposure from brakes there, but he also
 22       thought that he might have had exposure to brakes when he
 23       worked for Roinco.
 24                    Q.            Starting in 1983?
 25                    A.
                                 Draft Copy
                                     In 1983.          And sometimes when he was


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                            Herman Gibb
August 1, 2006                                                              ROUGH DRAFT


                                                                                 Page 236

   1      at -- sometimes when he worked for R.G. White and go on
   2      locations there were brakes coming on the conveyer belts
   3      that got jammed up he possibly -- he thought there might
   4      have been asbestos from that.
   5                   Q.            You wrote on page three here
   6      "Occasionally in those locations where debonding ovens
   7      had been installed, the brake shoes on the conveyor belts
   8      became jammed."
   9                                 Do you see that?
 10                    A.            Yes.
 11                    Q.            What's a brake shoe?
 12                    A.            Well, that's the brake from the car.
 13                    Q.            Right.
 14                    A.            The shoe that goes against the wheel.
 15                    Q.            What is that made out of?
 16                    A.            Well, it has asbestos on it.      But, my
 17       understanding of the operation was that this was to
 18       remove the asbestos from the metal part of it, so they
 19       could recondition the brakes.
 20                    Q.            Okay.
 21                                  And then you wrote "Mr D'ulisse would go
 22       underneath the belt to straighten out the conveyor and
 23       believes he was exposed to asbestos from the brake shoes
 24       brick during those operations," end quote.
 25                    A.
                                 Draft Copy
                                     Correct.


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                     Herman Gibb
August 1, 2006                                                                       ROUGH DRAFT


                                                                                          Page 237

   1                   Q.            What's a brake shoes brick?              In the next
   2      to last paragraph on page three.
   3                   A.            I think -- what I was referring to was
   4      actually the next sentence where it says "He also had to
   5      repair firebrick following jam-ups."                         The word must have
   6      strayed there, I think.
   7                   Q.            So, if I am reading this, are you saying
   8      that when the brake shoes got jammed in the conveyor
   9      belts Mr. D'ulisse was saying he was exposed to dust from
 10       the brick in the ovens?
 11                    A.            No -- yes.         He could have -- let me
 12       clarify that, okay.
 13                                  As the brake shoes came through the
 14       conveyer belt, occasionally the conveyer belt would get
 15       jammed up, and he believes or he thought that there may
 16       have been some asbestos from the brake shoe, okay.
 17                                  But, also, in some of these jam-ups that
 18       would occur, he had to go inside of the oven to repair
 19       the brick because the brick got damaged.                        So, there's two
 20       ways in which he thought he may have been exposed.                        One
 21       was from the brake shoe itself, and the other was from
 22       the refractory brick of repairing the ovens.
 23                    Q.            Do you believe he was exposed to
 24       asbestos from the dust from the brake shoes that were
 25
                                 Draft Copy
          jammed on the conveyer belt?


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                       Herman Gibb
August 1, 2006                                                                         ROUGH DRAFT


                                                                                           Page 238

   1                   A.            No.
   2                   Q.            And is that because you believe the
   3      asbestos in that brake shoe lining was converted to
   4      fosterite?
   5                   A.            I think by that time, yes.                 He would
   6      have been exposed.            I mean, a brake mechanic who is
   7      working with a brake that for -- that, you know, is old
   8      and worn-out, and that brake lining the asbestos has been
   9      changed to fosterite, by the time that you take these
 10       brakes to Morak or wherever they are going to be
 11       reconditioned, he is now seeing the end of the process,
 12       he is now seeing a brake that has gone to high
 13       temperatures from people braking the cars and it is now
 14       even going to higher temperatures because it is inside of
 15       an oven that is up to 500 to 1,000 degrees, so, no.                          I
 16       don't believe he got asbestos from the brakes.                          Yes, I
 17       think it is quite possible that he got asbestos exposure
 18       from going in and repairing bricks in the oven.
 19                    Q.            Have you ever read any literature or
 20       seen any documents which measured asbestos exposures from
 21       a brake mechanic blowing out the dust inside a brake
 22       drum.
 23                    A.            Have I seen documents, I believe, yes.
 24       I have read documents to that affect.                           I think I may have
 25
                                 Draft Copy
          read Paustenbach's paper.                    I don't recall if there was


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                  Herman Gibb
August 1, 2006                                                                    ROUGH DRAFT


                                                                                      Page 239

   1      information on exposure on that or not.
   2                   Q.            Am I understanding that if there was
   3      information, dust that is being blown out with compressed
   4      air from inside the brake drum that there would be no
   5      asbestos in that dust because it's been converted to
   6      fosterite?
   7                   A.            Now, I can't say with absolute certainty
   8      whether there was no asbestos.                      I think, obviously, from
   9      what I just read to you that the likelihood is not very
 10       great that there is going to be much asbestos, so, you
 11       know, based on from what I know, the information that I
 12       have, I think there is not likelihood there is going to
 13       be asbestos.
 14                    Q.            Do you have any information from the
 15       Teschke or McDonald study from which you got your odds
 16       ratio with respect to risk of mesothelioma for people who
 17       work around ovens and furnaces as to how long those
 18       people worked in that job?
 19                    A.            I need toe take a look at the paper.
 20                    Q.            While you are doing that, I will mark
 21       these.
 22                                  MR. KRISTAL:           I am marking the
 23                    Agudo paper as Exhibit 9.
 24                                  I am marking the Teschke paper
 25
                                 Draft Copy
                       as Exhibit 10.


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                      Herman Gibb
August 1, 2006                                                        ROUGH DRAFT


                                                                          Page 240

   1                                 I am marking the Coggen paper
   2                     as Exhibit 11.
   3                                 I am marking the Hessel paper
   4                     as number 12.
   5                                 I am marking the Hodgson paper
   6                     and number 13.
   7                                 I am marking the McDonald
   8                     paper as Exhibit 14.
   9                                 I am marking another paper by
 10                      Hodgson as Exhibit 15.
 11                                  I am marking the Huncharek
 12                      paper as Exhibit 16.
 13                                  I am marking Exhibit 17 as the
 14                      Teta paper.      Exhibit 17 is a letter
 15                      from Langer.
 16                                  Exhibit 18 is the Pelnar
 17                      paper.
 18                                  Exhibit 19 is the Gustavsson
 19                      paper.
 20                                  Exhibit 20 is the Spirtas
 21                      paper.
 22                                  Exhibit 21 is the Javoholm
 23                      paper.
 24                                  Exhibit 22 is the Hansen
 25                      paper.
                                 Draft Copy
                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                        Herman Gibb
August 1, 2006                                                          ROUGH DRAFT


                                                                            Page 241

   1                                 Exhibit 23 is the Woitowitz
   2                     and Rodelsperger paper which we had
   3                     mentioned earlier.
   4                                 Exhibit 24 is a paper by
   5                     Schiffman.
   6                                 Exhibit 25 is a document by
   7                     Milham.
   8                                 Exhibit 26 is a document from
   9                     the SEER Cancer Statistics Review,
 10                      1975 to 2002.        The first page is Table
 11                      I-4.
 12                                  Exhibit 27 is another document
 13                      from the SEER database entitled
 14                      "Age-Adjusted Rates & 95% Confidence
 15                      Intervals for Mesothelioma, All Ages."
 16                                  Exhibit 28 is a document
 17                      entitled "Inhaled Particles" by
 18                      Cherry.     It is a chapter from a book
 19                      by Cherry.
 20                                  Exhibit 29 is a paper by
 21                      Peterson.
 22                                  The other documents which were
 23                      brought that I not marking, one is a
 24                      pathological report from Mr. D'ulisse
 25
                                 Draft Copy
                         making a diagnosis of mesothelioma and


                                      Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                               Herman Gibb
August 1, 2006                                                                 ROUGH DRAFT


                                                                                   Page 242

   1                   the other two documents are copies of
   2                   his two days of deposition.
   3                                 (Plaintiff's Exhibits 9
   4                   through 29 were marked for
   5                   identification.)
   6                   Q.            I think the question on the table is
   7      whether or not the Teschke and McDonald paper mentioned
   8      for how long individuals who were categorized with having
   9      worked with ovens and furnaces worked at those jobs?
 10                    A.            I don't know that it states exactly how
 11       long they worked there.                   I do know at least from Teschke
 12       that we have, for example, the most recent 20 years
 13       removed, so they would have had to work at least 20
 14       years.
 15                    Q.            Before you move that, that means that
 16       they are not looking at what job they had within 20 years
 17       of the diagnosis because --
 18                    A.            Right.
 19                    Q.            -- of latency period, correct?
 20                    A.            Right.
 21                    Q.            That has nothing to do with how long
 22       he's worked at a job?
 23                    A.            No.      But, it means -- you knwo, if you
 24       are going to remove 20 years of exposure, obviously, you
 25
                                 Draft Copy
          had some years prior to that.


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                Herman Gibb
August 1, 2006                                                                  ROUGH DRAFT


                                                                                    Page 243

   1                   Q.            Are you saying that the 20 years removed
   2      category means that Teschke was removing 20 years of
   3      exposure?
   4                   A.            No, no.
   5                                 MR. LERNER:          You asked him how
   6                   long they were on the job.
   7                                 MR. KRISTAL:           Exactly.
   8                                 MR. LERNER:          Those 20 years
   9                   that they were on the job would still
 10                    be applicable.          You didn't equate the
 11                    latency in the question.                   That is all
 12                    he is saying.
 13                    Q.            Yeah, but that 20 years doesn't tell you
 14       whether they were working on that job or not working on
 15       that job?
 16                                  MR. LERNER:          He is not arguing
 17                    the point with you.
 18                    Q.            I just want to know if you can you tell
 19       me how long the people who were supposed to be working
 20       with ovens and furnaces worked with ovens and furnaces?
 21                    A.            No, I can't.
 22                    Q.            From either the Teschke study or the
 23       McDonald study, right?
 24                    A.            Right.
 25                    Q.
                                 Draft Copy
                                     Are you saying that if a person gave you


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                            Herman Gibb
August 1, 2006                                                              ROUGH DRAFT


                                                                                Page 244

   1      an occupational history as having worked with ovens and
   2      furnaces and they got mesothelioma, it would be your
   3      opinion that that exposure while they worked with ovens
   4      and furnaces contributed to their mesothelioma?
   5                   A.             I am sorry.
   6                                  Could you repeat the question, again.
   7                   Q.             Sure.
   8                                  Is it your opinion that if a person who
   9      contracted mesothelioma says that they worked around
 10       ovens and furnaces, it would be your opinion that that
 11       exposure was a substantial contributing factor to the
 12       development of their mesothelioma?
 13                    A.             Are you talking about in relation to
 14       these studies or are you talking about in general?
 15                    Q.             In general.
 16                    A.             In general if somebody said they
 17       developed mesothelioma and they worked around ovens and
 18       furnaces, yes.             I would say that that's an increased
 19       risk.
 20                    Q.             I am asking you if you believe that the
 21       exposures they had while they worked with ovens and
 22       furnaces was a substantial contributing factor to their
 23       mesothelioma?
 24                    A.             The exposure they had while working on
 25
                                 Draft Copy
          ovens and furnaces was a substantial contributing factor,


                                         Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                     Herman Gibb
August 1, 2006                                                                       ROUGH DRAFT


                                                                                           Page 245

   1      yes.      I would say it was.
   2                   Q.            Does it matter if they worked around
   3      ovens and furnaces for a day, or a week, or a year or 20
   4      years?
   5                   A.            I think it matters, you know, how long
   6      he worked there, but I am not sure -- may I see the
   7      study?
   8                   Q.            Sure.
   9                   A.            I think it matters.               Obviously, and, I
 10       think, you know, there's more time there.                        If you are
 11       speaking of specific studies, then --
 12                    Q.            I am not asking about any study.              I am
 13       asking about your opinion.
 14                    A.            Right.
 15                    Q.            Does it matter to your opinion whether
 16       or not the person worked for one day, one week, one
 17       month, one year, ten years, 20 years around ovens and
 18       furnaces with respect to that exposure being a
 19       substantial contributing factor to their development of
 20       mesothelioma?
 21                    A.            I think it is more likely the longer you
 22       work there the greater probability is is that that
 23       particular occupational exposure contributed to the risk.
 24                    Q.            Well, if the person worked for one day
 25
                                 Draft Copy
          around ovens and furnaces 30 years later got


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                      Herman Gibb
August 1, 2006                                                                        ROUGH DRAFT


                                                                                          Page 246

   1      mesothelioma, was that exposure a substantial
   2      contributing factor to their mesothelioma?
   3                   A.            That is probably unlikely for one day.
   4                   Q.            What about one week?
   5                   A.            I don't think you can say, you know, one
   6      day, one week, one month.                 You know, we are going to go
   7      through different time periods.                       It would be very
   8      difficult for me or anybody else to say that at this time
   9      period you cut it off, after that those exposures were
 10       relevant, and before that the exposures weren't relevant.
 11       I can't say that.           I don't think anybody else can say
 12       that.
 13                                  These particular studies, for example,
 14       in Teschke, they said that odds ratio were calculated for
 15       every employee for six or more months versus never
 16       employed in each occupational group.                         So, for six or more
 17       months from the Teschke et al study, we can say that the
 18       people who worked as in shipbuilding, repair/demolition,
 19       installing insulation, plumbing, pipefitting or heating
 20       repair, furnace or boiler installation or repair,
 21       building demolition, a renovation, all of those people
 22       have increased risks of mesothelioma.
 23                    Q.            So, it would be your opinion that
 24       somebody who worked for six months or more --
 25                    A.
                                 Draft Copy
                                     I didn't say that.                I didn't six months


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                   Herman Gibb
August 1, 2006                                                                     ROUGH DRAFT


                                                                                       Page 247

   1      or more.          It could be five months and 29 days may
   2      increase the risk.            I don't know that.             I don't know that
   3      anybody can say that.              But, I know that in the Teschke et
   4      al study at least if you are employed for six or more
   5      months, and six months is not that long a period of time,
   6      if you were employed for six or more months you have an
   7      increased risk that is statistic significant for all of
   8      those occupations which I just read to you.
   9                   Q.            So, if a person worked around ovens and
 10       furnaces for seven months and 30 years later developed
 11       mesothelioma, it would be your opinion that that exposure
 12       substantially contributed to their mesothelioma?
 13                    A.            Is that all the information that you are
 14       going to give me?
 15                    Q.            That is it.
 16                    A.            You are not going to tell me what other
 17       occupational exposures the person may have had?
 18                    Q.            Assume they had no other exposure.
 19                    A.            They had no other exposure and they had
 20       seven months of exposure --
 21                    Q.            Working around ovens and furnaces.
 22                    A.            Then, I would say that the most likely
 23       cause of that person's mesothelioma from the occupational
 24       history, if I have a complete occupational history, and
 25
                                 Draft Copy
          if I know anything else that the individual may have


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                 Herman Gibb
August 1, 2006                                                                   ROUGH DRAFT


                                                                                     Page 248

   1      done, provided, you know, he or she wasn't laundering
   2      clothes for an asbestos, you know, cement worker or
   3      something, then, I could say that is probably the most
   4      likely explanation.
   5                   Q.            Does it matter whether or not that
   6      person who worked around ovens and furnaces was using
   7      asbestos-containing materials directly or was simply a
   8      bystander to your opinion?
   9                   A.            I don't think you can say -- anybody can
 10       say that a person who is using it directly has risk and a
 11       bystander doesn't have risk.                    I think it depends on what
 12       bystander was doing.             If the bystander was there
 13       observing while somebody was cutting insulation, as
 14       Mr. D'ulisse says he was cutting insulation with a saw
 15       and the dust was flying, and if he had an assistant who
 16       may not have been doing that exact work that was standing
 17       there, it is possible that the individual may have a
 18       risk.       I can't tell you that, you know, bystanders who
 19       were involved - - in the proximity of somebody doing the
 20       occupation for which we know there is risk didn't have
 21       risk.       It possible that they could have.                But, you know,
 22       the most relevant thing here is we don't have an
 23       occupational category of bystander, so we are looking at
 24       occupational categories that have been defined for which
 25       we have information.
                                 Draft Copy
                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                  Herman Gibb
August 1, 2006                                                                    ROUGH DRAFT


                                                                                       Page 249

   1                   Q.            In the Teschke article they talk about
   2      furnaces and boilers, right?
   3                   A.            Furnaces and boilers, correct.
   4                   Q.            They don't mention ovens, correct?
   5                   A.            They don't mention ovens.
   6                   Q.            Do you know the comparison between the
   7      amount of fiber that went into the ovens that
   8      Mr. D'ulisse was building compared to firebrick that is
   9      in the furnaces and boilers that are being discussed in
 10       the Teschke paper?
 11                    A.            No, I can't.
 12                    Q.            Is it more, less, the same or you just
 13       don't know one way or the other?
 14                    A.            I don't know.            But, I do know that in
 15       furnaces and ovens they use refractory brick and
 16       Mr. D'ulisse was using refractory -- was building them
 17       with refractory brick and other occupations where
 18       refractory brick is part of the furnace or part of the
 19       ovens that those occupations have an increased risk of
 20       mesothelioma.
 21                    Q.            So, are you saying, then, it is the type
 22       of product that is used in an occupation that is critical
 23       rather than the title of the occupation?
 24                    A.            I am sorry.          Repeat the question.
 25                    Q.
                                 Draft Copy
                                     Are you saying that it is more critical


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                          Herman Gibb
August 1, 2006                                                                            ROUGH DRAFT


                                                                                              Page 250

   1      to your opinion the type of product that the person was
   2      working with rather than the title of their job?
   3                   A.               No.      I think it is -- the information
   4      that I am utilizing here is the title of the job.                           I
   5      mean, we can't be specific as to how much asbestos was in
   6      this brick versus how much asbestos was in that brick,
   7      what kind of asbestos it was.                           What we do know is that
   8      these particular occupations have increased risk.
   9                   Q.               Are the papers that you cited in your
 10       report and any additional papers or documents that you
 11       have brought to the deposition that we have marked the
 12       universe of documents that you are relying on for your
 13       opinions here?
 14                    A.              I wouldn't say it is an entire universe.
 15       I mean, I have read other things on asbestos that I may
 16       not have referenced here.                       There's other information that
 17       I have read.               These are the documents I have chosen on
 18       which to base my report.
 19                    Q.              Are there any documents that are
 20       significant that you are relying on for your opinions
 21       that you haven't the cited in your report?
 22                    A.              I don't think there's any documents that
 23       are significant -- I think the documents here are
 24       relevant to the report.                      I think these documents support
 25       the report.
                                 Draft Copy
                                I don't know that I needed to call on other


                                              Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                    Herman Gibb
August 1, 2006                                                                      ROUGH DRAFT


                                                                                        Page 251

   1      documents to support the report.                        This is -- I think, the
   2      report is supported by the documents here.
   3                   Q.            That is not my question.
   4                   A.            But, I have other information, of
   5      course, that I have read that, you know, contribute to my
   6      opinion.
   7                   Q.            Are those things that are not cited here
   8      significant in contributing to your opinion?
   9                   A.            In terms of?
 10                    Q.            If you read the "Encyclopedia Briticana"
 11       and it says asbestos is a mineral fiber, I am not
 12       expecting you to cite that because that is not what I
 13       consider to be significant.                   I am talking about the
 14       ultimate bottom line opinions here.
 15                    A.            I will be somewhat academic in my
 16       response.          I think everything that I read regarding
 17       asbestos is significant.                I think I have supported the
 18       report with these papers.                 I don't think that other
 19       information I am going to pool in, you know, changes the
 20       report.        I have think, you know, the report is what it is
 21       and it is supported by the information that I reference.
 22                    Q.            Are there any reports that you have in
 23       this particular case -- strike that.
 24                                  Are there any opinions that you have in
 25
                                 Draft Copy
          this particular case that are not contained in your


                                        Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                Herman Gibb
August 1, 2006                                                                  ROUGH DRAFT


                                                                                    Page 252

   1      report?
   2                   A.            No.
   3                                 MR. LERNER:             Well, how would
   4                   anybody answer a question like that.
   5                   I mean --
   6                                 MR. KRISTAL:              Well, he knows
   7                   if he has an opinion.
   8                                 MR. LERNER:             Jerry, you can
   9                   ask him his opinion on virtually
 10                    anything that is not in the report.
 11                    That doesn't mean he wouldn't have an
 12                    opinion because he didn't express it
 13                    in the report.
 14                    Q.            It is my understanding that you were
 15       asked to render an opinion on whether or not any exposure
 16       that Mr. D'ulisse had to asbestos in asbestos-containing
 17       brakes contributed to his mesothelioma?
 18                                  Was that your task?
 19                    A.            That is what I believe I have stated in
 20       my report.
 21                    Q.            Right, exactly.
 22                                  Was there any other opinion that you
 23       were asked to give in this case that is not contained in
 24       your report?
 25                    A.
                                 Draft Copy
                                     I was asked, as it says in the first


                                           Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                                Herman Gibb
August 1, 2006                                                                  ROUGH DRAFT


                                                                                    Page 253

   1      page, to give an expert opinion as to whether alleged
   2      exposure to asbestos from brake lining was a substantial
   3      factor contributing to the development of Mr. Alfred
   4      D'ulisse's mesothelioma.
   5                                   MR. KRISTAL:           Why don't we
   6                    take 30 second off the record.
   7                                 (A short recess was taken.)
   8                                   MR. KRISTAL:           For the record,
   9                    we have no additional questions.
 10                                    As a housekeeping matter, I
 11                     have mistakenly marked two exhibits as
 12                     Exhibit 17, so I re marked the Langer
 13                     Letter to the Editor as 17A.
 14                                    Any questions?
 15                          (Deposition concluded at 4:52 p.m.)
 16
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                                 Draft Copy
                                         Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                       Herman Gibb
August 1, 2006                                                         ROUGH DRAFT


                                                                           Page 254

   1                                 REPORTER'S CERTIFICATE
   2
   3                       I, Kerry D. Halpern, Shorthand Reporter,
   4      certify;
   5                       That the foregoing proceedings were taken
   6      before me at the time and place therein set forth, at
   7      which time the witness was put under oath by me;
   8                       That the testimony of the witness and all of
   9      the objections made at the time of the examination were
 10       recorded stenographically by me and were thereafter
 11       transcribed;
 12                        That the foregoing is a true and correct
 13       transcript of my shorthand notes so taken.
 14                        I further certify that I am not a relative or
 15       employee of any attorney or of any of the parties, nor
 16       financially interested in the action.
 17                        I declare under penalty of perjury under the
 18       laws of the State of New York that the foregoing is true
 19       and correct.
 20                        Dated this 2nd day of August, 2006.
 21
 22
 23                        KERRY D. HALPERN, Shorthand Reporter
 24
 25
                                 Draft Copy
                                       Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                              Herman Gibb
August 1, 2006                                                                ROUGH DRAFT


                                                                                  Page 255

   1      STATE OF                                        )
   2      COUNTY OF                                       ) SS.
   3
   4
   5                       I, the undersigned, declare under penalty of
   6      perjury that I have read the foregoing transcript, and I
   7      have made any corrections, additions, or deletions that I
   8      was desirous of making; that the foregoing is a true and
   9      correct transcript of my testimony contained therein.
 10
 11
 12       EXECUTED this ______ day of ___________, 2006, at
 13       _______________, _______________.
                       City                  State
 14
 15
 16
                                     WITNESS:
 17                                                             HERMAN GIBB
 18
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                                 Draft Copy
                                          Priority One Court Reporting
D'Ulisse v. Asbestos - ROUGH DRAFT                                    Herman Gibb
August 1, 2006                                                      ROUGH DRAFT


                                                                          Page 256

   1                  REPORTER'S CERTIFICATION OF CERTIFIED COPY
   2
   3                       I, KERRY D. HALPERN, Shorthand Reporter in the
   4      State of New York, certify that the foregoing pages
   5      1through 255, constitute a true and correct copy of the
   6      original deposition of HERMAN GIBB, taken on August 1,
   7      2006.
   8                       I declare under the penalty of perjury under
   9      the laws of the State of New York that the foregoing is
 10       true and correct.
 11                        Dated the 2nd day of August, 2006.
 12
 13
 14                        KERRY D. HALPERN, Shorthand Reporter
 15
 16
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                                 Draft Copy
                                     Priority One Court Reporting

								
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