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UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
. . . . . . . . . . . . . . .
IN RE: . Case No. 10-11780(JKF)
.
SPECIALTY PRODUCTS HOLDING .CORPORATION, et al., .
.
Debtors. .
. . . . . . . . . . . . . . .
SPECIALTY PRODUCTS HOLDING . Adv. Pro. No. 10-51085(JKF)
CORP., BONDEX INTERNATIONAL,.
INC., .
.
Plaintiffs, .
.
v. . 5414 U.S. Steel Tower
. 600 Grant StreetTHOSE PARTIES LISTED ON . Pittsburgh, PA 15219
EXHIBIT A TO COMPLAINT AND .
JOHN AND JANE DOES 1-1000, .
.
Defendants. . January 10, 2013
. . . . . . . . . . . . . . . 8:34 a.m.
TRANSCRIPT OF ASBESTOS LIABILITY ESTIMATION TRIAL
BEFORE HONORABLE JUDITH K. FITZGERALD
UNITED STATES BANKRUPTCY COURT JUDGE
Audio Operator: Janet Heller
Proceedings recorded by electronic sound recording, transcript
produced by transcription service
______________________________________________________________
J&J COURT TRANSCRIBERS, INC.268 Evergreen Avenue
Hamilton, New Jersey 08619
E-mail: [email protected]
(609) 586-2311 Fax No. (609) 587-3599
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APPEARANCES:
For the Debtor: Jones Day
By: GREGORY GORDON, ESQ.
DANIEL B. PRIETO, ESQ.THOMAS R. JACKSON, ESQ.
2727 North Harwood Street
Dallas, TX 75201
Evert, Weathersby, Houff
By: C. MICHAEL EVERT, JR., ESQ.
3405 Piedmont Road, Suite 200
Atlanta, GA 30305
Evert, Weathersby, Houff
By: EDWARD F. HOUFF, ESQ.
120 E. Baltimore Street, Suite 1300Baltimore, MD 21202
For the Committee of Montgomery, McCracken, Walker &
Asbestos Personal Injury Rhoads
Claimants: By: NATALIE RAMSEY, ESQ.
MARK B. SHEPPARD, ESQ.
K. CARRIE SARHANGI, ESQ.
KATHERINE M. FIX, ESQ.
123 South Broad Street
Philadelphia, PA 19109
Montgomery, McCracken, Walker &Rhoads
By: MARK FINK, ESQ.
1105 North Market Street
Wilmington, DE 19801
Motley Rice LLC
By: NATHAN D. FINCH, ESQ.
1000 Potomac St. NW, Suite 150
Washington, DC 20007
Waters Kraus Paul
By: SCOTT L. FROST, ESQ.
222 N. Sepulveda Blvd., Suite 1900
El Segundo, CA 90245
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APPEARANCES (Cont'd):
For Future Claimants Young Conaway Stargatt & Taylor LLP
Representatives: By: EDWIN J. HARRON, ESQ.
SHARON ZIEG, ESQ.JOHN T. DORSEY, ESQ.
ERIN EDWARDS, ESQ.
The Brandywine Building
1000 West Street, 17th Floor
Wilmington, DE 19801
For RPM International: Thorp, Reed & Armstrong
By: WILLIAM M. WYCOFF, ESQ.
JERRI A. RYAN, ESQ.
One Oxford Centre
301 Grant Street, 14th Floor
Pittsburgh, PA 15219
TELEPHONIC APPEARANCES:
For the Debtors: Jones Day
By: JOHN H. CHASE, ESQ.
2727 North Harwood Street
Dallas, TX 75201
Richards, Layton & Finger, P.A.
By: DANIEL DeFRANCESCHI, ESQ.
ZACHARY SHAPIRO, ESQ.
920 North King Street
Wilmington, DE 19801
For the Committee of Montgomery, McCracken, Walker &
Asbestos Personal Injury Rhoads
Claimants: By: LAURIE KREPTO, ESQ.
DAVIS L. WRIGHT, ESQ.
123 South Broad Street
Philadelphia, PA 19109
For Wachovia Capital Otterbourg, Steindler, Houston
Finance Corp.: & Rosen, P.C.By: ANDREW M. KRAMER, ESQ.
ROBERT GONNELLO, ESQ,
230 Park Avenue, 29th Floor
New York, NY 10169
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TELEPHONIC APPEARANCES (Contd):
For Honeywell: McDermott Will & Emery
By: NAVA HAZAN, ESQ.
340 Madison Avenue
New York, NY 10173
Financial Advisors for The Blackstone Group
the Debtors: By: JAMIE OCONNELL
PAUL SHEAFFER
DANIEL CASIERO
345 Park Avenue
New York, NY 10154
Interested Party: Klehr, Harrison, Harvey &
Branzburg
By: DOMENIC PACITTI, ESQ.
919 Market StreetWilmington, DE 19801
Interested Party: Orrick, Herrington & Sutcliffe
By: JAMES W. BURKE, ESQ.
JONATHAN P. GUY, ESQ.
KATHLEEN A. ORR, ESQ.
RICHARD H. WYRON, ESQ.
1152 15th Street, N.W.
Washington, D.C. 20005
Interested Party: Hughes, Hubbard & Reed LLP
By: LAUREN ASCHER, ESQ.One Battery Park Plaza
New York, NY 10004
Interested Party, Dryvit Dryvit Systems
Systems: By: NIKKI WAKEMAN
For Asbestos Plaintiffs: James F. Humphreys & Associates
By: BRONWYN RINEHART, ESQ.
United Center, Suite 800
500 Virginia Street East
Charleston, WV 25301
For RPM International: Thorp, Reed & Armstrong
By: KAREN GRIVNER, ESQ.824 N. Market StreetSuite 710Wilmington, DE 19801
- - -
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I N D E X
WITNESSES PAGE
DR. LAURA WELCH
Direct Examination by Mr. Finch 7
Cross Examination by Mr. Houff 41Redirect Examination by Mr. Finch 76
MARK IOLA
Contd Direct Examination by Ms. Ramsey 83
Cross Examination by Mr. Jackson 102
Redirect Examination by Ms. Ramsey 131
Recross Examination by Mr. Jackson 135
JEFFREY BLAKE SIMON
Direct Examination by Ms. Ramsey 137
Cross Examination by Mr. Jackson 156
Redirect Examination by Ms. Ramsey 171
DR. MARK PETERSON
Direct Examination by Mr. Sheppard 177
Cross Examination by Mr. Evert 271
EXHIBITS ID EVD.
ACC/FCR/M-128 CV of Dr. Welch 8
ACC/FCR/M-127 Bondex Report 8
ACC/FCR/M-129 Rebuttal Report of Dr. Welch 8
ACC 1015 Slides 8
ACC-1016 Chart from Kanarak report 78
ACC-1017 Pira paper 78
ACC-1016(a) Published paper in Pira 80
ACC-388 Document 134
ACCE-85 CV of Dr. Peterson 184 184
ACC/FCR 1019 Slides 185
ACC 1020 Peterson report dated 5/31/10 270
ACC 1021 Peterson rebuttal report, 10/2012 270
ACC 1022 Peterson rebuttal report, 1/3/2013 270
ACC 1023 Peterson chart drawn in courtroom 270
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6
THE COURT: Good morning, please be seated.1
MR. FINCH: Good morning, Your Honor.2
THE COURT: This is the continuation of the3
estimation trial in the SPHC case pending in the District of4
Delaware. Participants by phone are Lauren Ascher, James5
Burke, Dan Casiero, John Chase, Daniel DeFranceschi, Robert6
Gonnello, Karen Grivner, Jonathan Guy, Nava Hazan, Andrew7
Kramer, Laurie Krepto, Jamie OConnell, Kathleen Orr, Domenic8
Pacitti, Browyn Rinehart, Zachary Shapiro, Paul Sheaffer, Nikki9
Wakeman, Davis Wright and Richard Wyron. Are there any changes10
in counsel in court this morning?11
MR. FINCH: Jonathan George from the Waters & Krause12
firm will be with me at the outset, Your Honor. This is Nathan13
Finch for the Asbestos Claimants Committee.14
THE COURT: All right. Any others?15
MR. DORSEY: None for the FCR, Your Honor.16
THE COURT: Okay. Mr. Iola -- do you have any17
housekeeping matters first?18
MR. FINCH: We do have a housekeeping matter.19
THE COURT: Yes, Mr. Finch.20
MR. FINCH: Your Honor, when we concluded at the end21
of yesterday, Mr. Iola was still in his direct examination.22
THE COURT: Yes.23
MR. FINCH: By agreement of the parties, we have24
agreed that we will suspend Mr. Iolas direct examination and25
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do, complete the direct and cross examination of Dr. Laura1
Stewart Welch and then resume and conclude with Mr. Iolas2
examination. Is that agreed?3
MR. HOUFF: Yes, Your Honor.4
THE COURT: All right. Thank you.5
MR. FINCH: At this time, Your Honor, the Asbestos6
Claimants Committee calls Dr. Laura Stewart Welch to the stand.7
THE COURT: Good morning.8
COURT CLERK: Please raise your right hand.9
DR. LAURA WELCH, WITNESS, SWORN10
COURT CLERK: Please be seated.11
DIRECT EXAMINATION12
BY MR. FINCH:13
Q Good morning, Dr. Welch.14
A Good morning, Mr. Finch.15
Q Are you a medical doctor?16
A I am.17
Q Where are you licensed to practice medicine?18
A In the State of Maryland.19
Q Is ACC/FCR/M-128, your curricula vitae, in front of you?20
A Yes, it is.21
Q And is that a current and accurate summary of your22
professional biography?23
A Yes, it is.24
Q And it ACC/FCR/M-127 a copy of your Bondex report and what25
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we call the big affidavit, which is the additional opinions?1
A Yes, it is.2
Q And, is ACC/FCR/M-129 your rebuttal report in the Bondex3
case?4
A I just moved everything around up here. Yes, it is.5
Q And did you help to prepare a set of slides to summarize6
your testimony, Dr. Welch?7
A Yes, I did.8
Q And is what has been marked Exhibit ACC for demonstrative9
purposes 1015 the slides you helped to prepare?10
A Yes.11
MR. FINCH: Your Honor, at this time we would offer12
for substantive purposes Dr. Welchs curricula vitae, which is13
ACC/FCR/M-128 and for demonstrative purposes only the two14
Bondex reports which is ACC/FCR/M-127, ACC/FCR/M-129 and the15
slide show for demonstrative purposes only, ACC 1015.16
MR. HOUFF: No objection, Your Honor.17
MR. FINCH: May I approach?18
THE COURT: Yes. Exhibit 128 is admitted and 127,19
129 -- thank you, and 1015 are accepted as demonstratives.20
Q Dr. Welch, could you briefly describe your educational21
training through medical school?22
A Yes. I got a bachelors in biology from Swarthmore College23
in Pennsylvania and I graduated from the State University in24
New York at Stony Brook, with an MD degree.25
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Q Have you published any papers in the peer-reviewed medical1
literature that are original research epidemiology studies2
concerning asbestos exposures and mesothelioma?3
A Yes, I have.4
Q Could you describe for the Court the experience you have5
had with researching the epidemiology of asbestos-related6
diseases and the publications that you have done in that7
regard?8
A Yes. One large study that Ive been conducting since 19869
is a longitudinal cohort study of sheet metal workers which is10
one the main construction trades, looking -- originally were11
looking primarily at asbestos-related disease and weve12
expanded it to look at other lung disease and published results13
on that, that look at change in X-ray over time, cause of death14
among sheet metal workers, prevalence of asbestos-related15
disease and some other ancillary studies.16
I conducted a case control study of peritoneal17
mesothelioma when I was at the Washington Hospital Center18
looking at the relationship between asbestos exposure, or the19
prevalence of asbestos exposure among the cases. And, in20
addition, I manage a large medical surveillance program for21
construction workers who have worked for the Department of22
Energy building atomic weapons over the years. And one of the23
predominant exposures to all the different construction trades24
is asbestos. So we also looked in that cohort for25
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asbestos-related disease, including prevalence of lung disease1
and mortality as well.2
Q And the cohort study for the sheet metals workers you3
described is one of the largest cohort studies of asbestos4
exposed workers ever assembled?5
A Thats correct.6
Q And youve been publishing papers in the peer-reviewed7
literature over the years, describing disease incidents seen in8
cohort?9
A Yes.10
Q Including mesothelioma?11
A Correct.12
Q And have any of your peer-reviewed papers, original13
research on the epidemiology of asbestos-related diseases been14
cited by the International Agency for Cancer Research in its15
latest monograph on asbestos?16
A Yes. The one I mentioned about the relationship between17
asbestos exposure and peritoneal mesothelioma was cited by IARC18
in their assessment of peritoneal mesothelioma for the Volume19
101.20
Q Are you board certified in any medical disciplines?21
A Both in internal medicine and in occupational medicine.22
Q Have you held any faculty positions at any medical23
schools?24
A Yes. When I finished my residency I was on the faculty at25
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Albert Einstein in New York. And then I was on the faculty at1
Yale University School of Medicine for about four years in the2
1980s. Then I was at George Washington University, full time3
faculty, from 85 till 1997. I stayed on the faculty there as4
voluntary faculty and supervised students in their research.5
Q Were you ever the chief of any sections at George6
Washington?7
A Yes. When I first started at George Washington University8
I helped establish the program in occupational medicine and9
then was the chief of that and then was the head of the section10
on occupational environmental health in the School of Public11
Health. I also helped establish that department and then12
became the chair of that department.13
When I left GW, I worked for a large hospital in14
D.C., the Washington Hospital Center and did, essentially, the15
same thing there. I set up and occupational medicine program16
and was chief of that program at that hospital, as I continued17
in my faculty appointment at George Washington.18
Q And where are you now?19
A I work for an organization called the Center for20
Construction Research and Training, which is in Silver Spring,21
Maryland. And the focus is to improve health and safety for22
construction workers in the United States, through advanced23
research and intervention studies and training.24
Q How long have you had experience as a medical doctor with25
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workers in the construction industry?1
A Since, maybe 1980.2
Q And would that include drywall workers?3
A Yes.4
Q And Dr. Welch, have you ever been a consultant to the NIH?5
A Yes. I had the pleasure of being a consultant to the6
brain aging section of NIH when I was at GW. They were7
interested in looking at impact of a range of neurotoxins on8
development of dementia. So I helped them with occupational9
histories and with -- it can be a little be hard to assess10
people with dementia, so it was a challenge and really a11
privilege.12
Q Have you been a peer reviewer for any journals that13
specialize in industrial occupational medicine?14
A Yes, for quite a few. I peer review regularly for the15
Journal of Industrial Medicine, the Scandinavian Journal of16
Work Environment and Health and the Journal of Occupational17
Environmental Medicine. And then occasionally have18
peer-reviewed for pretty much all of the other ones,19
Occupational Environmental Medicine in the U.K. Environmental20
Health Perspectives here in the U.S. and others.21
Q How man papers have you published in the peer review22
medical and scientific literature?23
A Its probably 75, something in that range.24
Q And how many of those deal with asbestos specifically?25
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A Oh, 12, 15, something like that.1
Q In addition to your research and publications, do you have2
experience in the diagnosis and treatment of asbestos-related3
disease?4
A Yes, I do.5
Q And how many patients have you diagnosed and/or treated6
for asbestos-related disease?7
(Pause)8
MR. FINCH: How do I --9
UNIDENTIFIED ATTORNEY: Logging off is not good.10
THE WITNESS: Shutting down is not good.11
Q Okay. Just keep going.12
A Okay.13
Q How many patients have you --14
A You know, I, at one point estimated it was about a15
thousand patients that Ive individually examined and16
interviewed and done a physical for, over the course of my17
career. And those include shipyard workers, construction18
workers. Theyre referred to me from all sorts of different19
sources. Their own physician. I would get referrals from20
OSHA and EPA to evaluate people who have called in on their21
hotlines. Some referrals from lawyers and the proportion that22
was coming from lawyers varied. But it was always -- maybe 2523
percent at most from lawyers. Mostly from their own doctors or24
their co-workers.25
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Q Have you ever testified before the United States Congress1
on asbestos disease and causation?2
A Yes, on two different times in 2003 and 2005.3
Q Have you ever been recognized by state or federal courts4
as an expert in internal medicine, occupational medicine, the5
epidemiology of asbestos-related diseases and the causation of6
mesothelioma?7
A Yes. In all those areas I have been so recognized.8
Q And have you been recognized by this court as an expert in9
asbestos-related issues?10
A Yes, I have.11
Q Have you ben recognized by Judge Obrino, who oversees the12
entire federal asbestos MDL, as an expert in asbestos-related13
epidemiology and causation?14
A Yes.15
MR. FINCH: Your Honor, at this time we would proffer16
as an expert, Dr. Welch, as an expert in internal medicine,17
occupational medicine, the epidemiology of asbestos-related18
diseases and the causation of mesothelioma.19
MR. HOUFF: I have no voir dire at this time, Your20
Honor.21
Q Dr. Welch could we --22
THE COURT: All right. Dr. Welch is so certified.23
MR. FINCH: May I proceed, Your Honor?24
THE COURT: Yes.25
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Welch - Direct/Finch 15
Q Dr. Welch, could we agree that any opinions you offer here1
today are to a reasonable degree of medical and scientific2
certainty?3
A Yes.4
Q Do you have an opinion, to a reasonable degree of medical5
certainty, as to whether chrysotile asbestos causes6
mesothelioma in humans?7
A Yes, I do have an opinion.8
Q And what is that opinion?9
A That chrysotile asbestos does cause mesothelioma in10
humans.11
Q Dr. Brody testified that the predominant fiber type found12
in the pleura was chrysotile. Why is that important from a13
perspective of a medical doctor?14
A Well, if were talking about mesothelioma, the pleura is15
where the tumor arises. So that the presence of fibers in the16
lung, thats not the place where the injury is occurring, its17
in the pleura. So, knowing --18
Q Do you have a slide that sort of shows that?19
A Yes, I do.20
Q Okay.21
A So, this is a diagram of the lung with -- it shows the22
ribs surrounding the lung, the body of the lung and then23
between -- Your Honor, people may have done this for you24
before, the anatomy of the lung, but between the lung and the25
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chest wall theres a space or potential space, called the1
pleural space. Both sides lined with pleural lining and thats2
where the mesothelioma develops. And thats a different kind3
of cell, that are on the pleural lining, the mesothelial cells4
and the cells in the body of the lung itself. So knowing that5
chrysotile fibers get to the pleura is very important when6
were looking at the whole sort of cascade of causation, you7
know. Does chrysotile cause mesothelioma. One of the valuable8
points is knowing that you can find those fibers in the pleura9
and that theyre preferentially translocated to the pleura10
based on some research thats been done.11
Q Dr. Welch, we have heard it suggested that in 1997 the12
Quebec cohort studies demonstrated that the mesotheliomas and13
the chrysotile miners in Canada was caused only by amphibole14
asbestos. First of all, are you familiar with the Quebec miner15
studies?16
A Yes, I am.17
Q Who helped to fund those studies?18
A The Quebec Mining Association.19
Q And what is the Quebec Mining Association?20
A Its an organization of mine owners in Quebec.21
Q The mining of what, asbestos?22
A Oh, yes, sorry. Mining asbestos.23
Q And has that organization -- strike that. Since 199724
have there been any studies that demonstrate an increased risk25
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Welch - Direct/Finch 17
of mesothelioma in chrysotile workers?1
A Yes, actually quite a few and they --2
Q Do you have a slide that lists out some of the studies?3
A I do.4
Q If you could continue your answer, you were going to say5
quite a few.6
A Quite a few, yeah. And, you know, some -- and I will7
talk about it a little bit later, some of the studies that --8
the big studies that were referred to as the chrysotile cohorts9
have also been followed forward in time and those arent10
necessarily all listed here. But these are from all over the11
world. I mean theyre from Italy, from Lithuania, from the12
U.S., from Egypt, from China, from Spain, looking at cohorts of13
workers exposed to chrysotile asbestos not working with14
amosite.15
Q And these are all studies that have been published in the16
peer-reviewed literature?17
A Yes. And you can see that, you know, really were looking18
at this that are published in the 2000s, primarily. And19
theres reasons that theres more and more information. It20
takes a long time between exposure and development of21
mesothelioma. So if we have plants that started producing in22
the 40s, you need to follow them till 85 before youre going23
to be finding their deaths. So its not surprising were24
seeing so much more coming out now than we had in the 1970s.25
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Q Dr. Welch, it has been suggested there is not one1
epidemiology study showing an increased risk of mesothelioma in2
a cohort of people exposed to only --3
THE COURT: Im sorry, Mr. Finch, youre going way4
too fast. I cant even hear you that fast, and I can listen5
faster than I can type. So if you would slow down, please.6
MR. FINCH: Sure. Im sorry, Your Honor. Were on7
the clock, so Ill slow down even though we are --8
THE COURT: Well, Im sorry. I need to hear your9
questions or I dont understand the answers.10
MR. FINCH: Thats fine. It is -- I am sorry.11
Q It has been suggested that there is not one epidemiology12
study showing an increased risk of mesothelioma in a cohort of13
people exposed to only chrysotile, uncontaminated by amphibole14
asbestos. Is that correct?15
A No, thats not correct.16
Q Do you have a slide listing out the key epidemiological17
studies that chrysotile fibers cause mesothelioma?18
A Yes, I do.19
Q And do you have a slide -- these are the three -- this is20
the Balangero, Italy cohort?21
A Right.22
Q And do you have a slide describing what that study23
demonstrates?24
A I do, yes.25
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Q Describe briefly for the Court what is the significance of1
the Balangero, Italy cohorts that have been published about in2
the peer-reviewed medical literature.3
A Okay. Well, this is studying workers who worked in a4
large open air chrysotile mine in northwest Italy, in the5
Piedmont section of Italy, which opened in 1916. And theres6
no tremolite contamination in that mine. So this is what -- if7
we want to say its a chrysotile mine, free of tremolite, which8
I think was one of the questions thats been raised so far in9
this proceeding. This mine has no tremolite.10
And in 1990, the first study of this mine was11
recorded, which found two mesotheliomas. But then it was12
extended in 2009 with an additional 15 years of followup, which13
means an additional 15 years in which those workers could have14
died. And theyre up to five mesotheliomas in that cohort.15
And that just reinforces what I said before, that as we go16
forward in time, theres more time for people to develop and17
die from mesothelioma.18
Q Youve also listed the Mirabelle study on this slide.19
What does that show?20
A So, the Mirabelle study looked -- it used the tumor21
registry in that area of Italy to look at all the22
mesotheliomas. The Pilotta and Pira were only looking at the23
workers who were employed by the mine but Mirabelle looked at24
all the cancers and they found a lot more that were related to25
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the mine, even though they werent direct employees of the1
mine. They found some that occurred in office workers in the2
mine. They were miners. They found some that occurred in3
miners who werent working directly for the mine, they were4
working for a subcontractor.5
Then they found 13 outside of the mine itself, three6
in workers processing the ore in that area but not directly at7
the mine and then they thought were due to environmental8
contamination around the mine. So, were up to, I think thats9
27 mesotheliomas related to that plant, expanding from what was10
two identified, you know, 20 years ago.11
Q And is this study an amphibole free chrysotile study?12
A Yes.13
Q And is the balangeroite ever been shown -- the ore thats14
called the balangeroite or theres some discussion on that, has15
that ever been shown to cause mesothelioma?16
A No.17
Q The author has concluded that its the chrysotile thats18
causing the mesothelioma and not the balangeroite.19
A Thats correct.20
Q Very briefly, whats the Loomis cohort?21
A Okay. Well, the Loomis -- this particular paper is a22
textile factory in North Carolina. And, again, this group of23
researchers has been studying this factory over a number of24
years. This particular cohort worked in two different -- had25
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two different plants. They call it Plant 3 and Plant 4. So1
this had whats essentially eight mesothelioma cases in a2
chrysotile, textile cohort, where whatever tremolite3
contamination exists there is tiny. And its been -- the4
exposures there have been really well documented and studied.5
So we know a lot about these workers.6
So then Plant 3 had a small amount of amosite used in7
one department. So we had five of these workers who were never8
in Plant 3 and three of them worked in Plant 3 where the9
amosite was used but they were not in those departments at all.10
So these are, in my opinion, are eight mesotheliomas exposed to11
chrysotile, not exposed to amosite.12
Q And in 2011 was there a paper published about a peritoneal13
mesothelioma from a person who had worked in the part of the14
mines in Quebec where there was little or no tremolite15
contamination?16
A Yes. From an individual who worked in the Carey Mine for17
over 40 years. And he developed peritoneal mesothelioma. The18
case was reviewed and reviewed by the Celotex Trust in Canada19
and he was awarded compensation as due to the asbestos in the20
mine. And he had no other exposure of other asbestos work.21
So, again, in my opinion, this is a chrysotile mesothelioma22
without any tremolite or other amphibole contamination.23
Q Dr. Welch, are you aware of any studies that talk about24
how little asbestos it takes to mesothelioma?25
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A Yes.1
Q And have you prepared a slide to show that?2
A Yes.3
Q And very briefly, are Iwatsubo and the Rodelsperger paper4
case control epidemiology studies that demonstrate an excess5
risk of mesothelioma at very low levels of exposure to6
asbestos?7
A Yes.8
Q Whats the Greenberg Davies case series?9
A Well, its a case series of, you know, really a number of10
mesothelioma cases where they did detailed histories. And that11
case series as well as Borro (phonetic) and Skameritz12
(phonetic) and others that I could mention, they all have --13
many of these case series have cases where the exposure was14
short.15
Q How short?16
A A couple of months. And, actually, in the Skameritz one17
which you dont have on the slide, it was in the order of days.18
Q And was the Greenberg Davies study in the order or -- as19
short as three weeks?20
A Right, yes. So, you know, there are a number that are21
under a year and then a number that are under a few months and22
then usually a couple in every one of these big case series23
that are in the order of days and weeks.24
Q Have there been any studies that have demonstrated how25
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little chrysotile asbestos it takes to cause mesothelioma?1
A Yes. There are two I think that are really very helpful2
for that. One is by Madkour from Egypt and one is by Pan which3
was done in California.4
Q Okay. Do you have a slide that illustrates the key points5
of the Madkour study?6
A Yes.7
Q And could you just take us through briefly what this study8
shows and what that slide shows?9
A Okay. Well, this was a study looking at the prevalence or10
presence of mesothelioma around a chrysotile asbestos plant in11
Egypt. And what the table at the bottom shows is the number of12
mesothelioma cases related to the distance from the plant. So13
the closest and then the map above really shows the concentered14
circles that visually display those distances.15
So living within 100 meters of the plant, there were16
39 mesothelioma cases, but if you run down to the bottom, there17
were four mesothelioma cases that occurred over a mile from the18
plant. People who lived at --19
Q Two point five kilometers is over a mile away of living --20
or a mile away from the chrysotile plant, people getting meso.21
A Correct.22
Q And this was a study that was published in the23
peer-reviewed medical literature.24
A Yes.25
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Q And the Pan study briefly, what is that study about? The1
Pan study from California.2
A So that was -- what Pan did was, used cases of3
mesothelioma in California and looked at their residents and4
mapped how close they lived to serpentine deposits which is5
what we call naturally occurring asbestos and serpentine is the6
rock from which chrysotile is mined. And in California, they7
have identified geologically where these naturally occurring8
outcroppings of asbestos are.9
So Pan basically mapped the cases and found that10
there was a relationship between where the serpentine11
outcroppings were and where the mesothelioma occurred. And the12
closer people lived to the outcroppings, the more likely they13
were to develop the mesothelioma.14
Q Dr. Welch, its been suggested that no epidemiology15
studies demonstrate that people who work with asbestos16
containing joint compound are at an increased risk of17
mesothelioma. Is that true?18
A Not in my opinion.19
Q Have you prepared a slide that discusses some of the20
things youve looked at to examine that question?21
A Yes.22
Q And what does this slide show?23
A Okay. Well, here I have listed two papers, one by Stern24
and one, its a case series out of the National Occupational25
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Mortality Survey. And then four papers that talk about rates1
of mesothelioma in painters. So, Stern looked at the union,2
thats the operative plasterers and cement masons and did3
whats called a PMR study. He collected all the deaths of a4
specified cohort of that union. And they had to have been5
active due paying members of the union at the time that they6
died to be able to be included in the study, just part of the7
methods. Which meant that they were long term plasterers and8
cement masons.9
And he found mesothelioma among the cohort and there10
were more of them among the plasterers than the cement masons.11
Q And whats the NOMS database?12
A Thats run by NIOSH, the National Institute of13
Occupational Safety and Health. And state health departments14
send in mortality information they collect, for which they have15
occupation -- its not every state, but I think at the time, by16
now there are 29 states that contribute to it. And then if17
theres occupation on the death certificate, youre able, Im18
able, were all able to look in the database to see what19
diseases are associated with which occupation.20
So if you look for drywall worker, there are three21
cases in the National Occupational Mortality Survey of22
mesothelioma among drywall workers.23
Q Out of 3,000 deaths, roughly.24
A Roughly, yes.25
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Q And is that -- are there limitations on the ability of1
epidemiology to detect risks of a rare disease like2
mesothelioma generally?3
A Generally, yes. If you want to do a cohort study, which4
in some ways gives you more rich data, you identify a group of5
workers, follow them forward in time, youll often know more --6
you dont have to interview them to know where they worked or7
information about the plant because thats usually part of the8
cohort study. But you need a really big study to find9
mesotheliomas because the mesotheliomas is a rare tumor. Were10
talking generally, you know, without significant asbestos11
exposure incidents, of one in a million people. So, youd need12
a big, big study.13
Q On the order of hundreds of thousands of people sometimes.14
THE COURT: Mr. Finch, we have to terminate, so Im15
sorry, well reconvene around 9:30. Well be in recess until16
9:30.17
MR. FINCH: Okay. Thank you, Your Honor.18
(Recess)19
THE COURT: Please be seated.20
MR. FINCH: Whenever youre ready to proceed, Your21
Honor.22
THE COURT: No yet. Waiting for everyone to come in,23
Mr. Finch. Dr. Welch are you ready?24
THE WITNESS: I am.25
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THE COURT: All right, Mr. Finch, thank you.1
MR. FINCH: Thank you, Your Honor.2
Q Dr. Welch, when we stopped you were talking about the3
difficulties or -- not the difficulties, the limitations on4
epidemiologys ability to detect mesothelioma. And could you5
explain how that relates to joint compound work specifically?6
A Yes. Well, you know, I had made this slide to illustrate7
workers exposed to joint compound, but there really isnt a job8
classification for drywall installer. Maybe there is, but like9
when Dr. Robinson at NIOSH did a large study of construction10
workers, they included 60,000 construction workers. There are11
only about 300 that were registered as drywall workers.12
Generally, drywall workers are plasterers, painters or13
carpenters. So trying to do a study just of drywall workers is14
not really possible.15
So the studies that I was using here are the closest16
workers we can find that use drywall compound, even though17
their name is not -- theyre not classified as drywall workers,18
like plasterers and painters.19
In addition, as I think weve talked about, it was20
talked about earlier during the hearing, that workers tend to21
have more than one exposure. People who work with drywall22
compound, they will also be working with and around other dust23
containing materials. So its very hard to isolate either the24
joint compound exposure and particularly hard to isolate the25
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drywall workers themselves. But theres reasons that painters1
are a pretty good proxy, which is why I put painters on the2
slide.3
Q Okay. Before we briefly discuss painters, is there, in4
fact, a study called the Fischbein study of just drywall5
workers?6
A Yes, yes.7
Q And what did that study find and why is it significant?8
A So thats a study in New York with what we call a cross9
sectional study, where the investigators went out and10
interviewed the individuals and classified them as drywall11
workers. And in that particular union in New York, they could12
identify the drywall workers. So in some local unions that may13
be a specific classification. And what they did was look at14
the degree of asbestos-related disease, not necessarily15
mesothelioma but asbestosis, pleural plaque and found a lot of16
asbestos-related disease on chest X-ray in drywall workers,17
which means they have a lot of exposure to asbestos.18
Q And to just -- that was a study about 115 to -- in the19
hundreds, hundreds of people, less than 200 people and about,20
what, 40 percent of them had a radiologically detectible21
asbestosis?22
A Yes.23
Q And Dr. Irving Selikoff was one of the authors of the24
study?25
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A Correct.1
Q And in terms, just generally, in terms of how much2
exposure you need to get asbestosis versus how much exposure3
you need to cause mesothelioma, how do the two relate?4
A Well, you need, comparatively, a lot more exposure to get5
asbestosis. A lot of people think theres some threshold below6
which you dont get asbestosis and, you know, I mean, if youre7
doing fiber year counts, maybe 25 fiber years, some people say8
100 fiber years to get asbestosis. And I know there was9
testimony yesterday talking about, is there a safe level of10
exposure to asbestos for mesothelioma and theres really not.11
When you go down to levels, some of the studies were talking12
about with low dose, theyre talking about a cumulative fiber13
exposure of .15 not a hundred. I mean, its much, much -- so14
if you get asbestosis, youre exposed at a level that puts you15
at really significant risk for mesothelioma.16
Q And was the amount of asbestosis seen in this cohort of17
people that worked with joint compound high compared to what18
you might see in the ordinary population?19
A Oh, yeah. You dont see, you know, people unexposed to20
asbestos, you dont see those X-ray findings. And the rates of21
disease they were finding were similar to what they were --22
that other Selikoff studies were finding in trades we know have23
high exposures, like insulators.24
Q Okay. You mentioned four studies of painters on there25
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that showed an odd ratio or increased risk of mesothelioma, is1
that right?2
A Right. When its a case control study, its really the3
risk of the mesothelioma being exposed to asbestos. So, say in4
Rake and Peto, which was a study, I think, from the U.K.,5
painters were 14 times more likely -- painters with6
mesothelioma were 14 times more likely to have been exposed to7
asbestos than the comparable groups.8
Q Now, painters arent -- why did you pick painters?9
A Well, painters dont have, in their regular work, they are10
not using other asbestos containing compounds. They dont use11
pipe covering, they dont use spray-on insulation. They do use12
joint compound. And there was an analysis of the kind of13
exposures that construction workers have, looking at all the14
materials, a pretty detailed analysis, and basically it said15
that the only asbestos containing material that painters use is16
joint compound.17
Q Now, thats not to say that painters cant sometimes be18
exposed to other types of asbestos is it? I mean it --19
A Correct. Right. If theyre working in the vicinity of20
somebody else using those materials, other materials, they21
could get bystander exposure.22
Q But you think that painters is a useful study to look at.23
A Definitely.24
Q There was a discussion of fiber potency differences. The25
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differences on a per fiber basis between chrysotile and some of1
the amphiboles. Do you recall generally that testimony?2
A Yes.3
Q Okay. Have you analyzed this, yes or no?4
A Yes.5
Q And have you published a peer review paper about it?6
A Yes.7
Q And what is your opinion about the fiber potency8
differences, Dr. Welch?9
A I think theres evidence that there is a difference in10
fiber potency with crocidolite being more potent than amosite11
and amosite being more potent than chrysotile. If I were to12
put a number on the amosite/chrysotile relationship, Id13
probably say amosite is twice as potent as chrysotile.14
But I think its really, really, really hard to get a15
number. And the numbers that we have that date back to 2000,16
say, when Hodgson and Darnton did an analysis, are out of date17
because the cohorts that were used to assess chrysotile have18
been followed forward in time and theres a lot more19
mesotheliomas in there.20
Q Do you have a slide that illustrates this?21
A Yes.22
Q And what -- could you explain to the judge what this slide23
is showing and what has happened to the cohorts of chrysotile24
that have been used in the attempts to quantify fiber potency?25
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A Right. So if you -- theres maybe, I think its around 301
studies that have been used and people keep using the same2
studies in these risk analyses, trying to figure out the3
potency differences, whether chrysotile is less potent. And4
four of them are considered chrysotile only cohorts. So, were5
really looking when were having this big discussion about6
potency, really about these four studies and weve already7
talked about the Balangero, Italy study. Thats the chrysotile8
mine thats known to be tremolite free. And what Ive noted9
there is from the original study, Ive had on the previous10
slide, the Piolotta (phonetic) study, there were two11
mesotheliomas reported. And thats the rate of mesothelioma12
for that population. Its been included in the risk13
assessments that date back to the 90s.14
There are now 27 mesotheliomas, so thats a really15
big change and that makes chrysotile appear much more potent16
than what it was in the 1990 analysis before the two updates17
were published.18
Q And has there been a significant -- a similar -- not19
similar, but there has been additional mesotheliomas in other20
chrysotile cohorts?21
A Right. So the one thats Connecticut is an asbestos22
textile plant in Connecticut which was reported to have none,23
but now is known to have five. And North Carolina, we talked24
about the Loomis one, which has gone from two to eight and in25
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Quebec, theres that one additional case we talked about thats1
been added to the Quebec miner study. That study has not been2
extended the way the other ones have. So there could be more3
mesotheliomas, but that study, we havent extended the4
mortality on that study. But, really, were seeing that the5
other ones are going up ten fold, four fold, ten fold.6
So that the rate of mesothelioma in chrysotile7
exposed populations is much higher than what it was when the8
Hodgson and Darnton risk assessment was done.9
Q And in the summer of 2008 did the Environmental Protection10
Agency convened a science advisory board. Go out and collect11
people from around the world with expertise is asbestos issues12
to try to look at one of the models that have been developed13
for attempting to quantify on a fiber-per-fiber basis the14
differences between the fiber types.15
A Yes. EPA regulates environmental contamination and if16
chrysotile were less dangerous, theyd like to know that17
because it might affect the way they mandate cleanup or18
containment. So they had a contractor put together a risk19
analysis and got together an expert committee to look at that20
risk analysis to see whether they could determine, on a21
scientific basis, that chrysotile was or was not safer than22
amosite.23
Q And what ultimately did the science advisory board24
conclude?25
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A They concluded they were going to stay with the risk1
assessment that EPA had always used, which did not2
differentiate by fiber type. The data that was presented in3
this model was not sufficient, strong enough, robust enough to4
be able to say that chrysotile was less potent that amosite.5
Q And you submitted written testimony in connection with6
this hearing, is that right?7
A I did, yes.8
Q And then following that hearing, you and Dr. Richard Lemen9
who was -- a little bit of testimony about him yesterday, who10
was a noted epidemiologist, and Michael Silverstein published a11
paper in the peer-reviewed literature talking about the12
difficulties in distinguishing between fiber types, is that13
right?14
A Yes.15
Q We heard briefly yesterday some discussion of how many16
fibers per cubic centimeter there might be in the air from17
breathing joint compound and we heard Dr. Brody talk about if18
you had a fiber that gets into your lungs what happens. Just19
from a medical perspective, if someone is working with joint20
compound where theyre mixing it and sanding it, or just even21
sanding it and sweeping up after it, how many fibers would they22
inhale in one day? And you dont need to be this precise23
calculation, I know youve done the math, but are we talking24
about a few hundred fibers, are we talking about thousands of25
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fibers? What are we talking about?1
A Were probably talking six million fibers if theyre2
working at one fiber per cc.3
Q In one day?4
A In one day, if theyre doing physical work which,5
obviously, youre doing if youre doing drywall work. If they6
were just sitting still at a desk in the room where somebody7
else was doing it right next to them, theyd get three million8
fibers. And then it goes up. As your activity goes up, you9
breath faster and breath deeper. So it could be even higher10
than that.11
Q Latency, the judge, Judge Fitzgerald has heard the term12
latency, which is the time from first exposure until the13
development of mesothelioma, do you agree with that?14
A Thats correct.15
Q What is the median, or average, latency for mesothelioma?16
A Well, its -- the average is over 40 years in all the17
studies that are looking at it now, but longer. You know, some18
studies the average is in the 40, 42, 43, which includes cases19
that are as long as 60 years after first exposure. And if20
people are really young when theyre exposed they could be in21
their 80s when theyre getting mesothelioma from the exposure22
they had in their teens.23
Q Is there any upper limit?24
A No.25
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Q Are there cases in the medical literature where1
mesotheliomas have occurred 70, 75 years after first exposure?2
A Yes.3
Q We talked about dose response and Im not going to try to4
draw dose response per again. Cumulative exposure, could you5
illustrate for the Court on the white board the concept of6
cumulative exposure?7
A Sure. We need to turn that so you can see it. If I8
dont drop everything.9
Q Actually, why dont we do it on the flip chart so theres10
a record of it.11
A Okay.12
COURT CLERK: Dr. Welch, are you going to be13
speaking?14
THE WITNESS: I guess thats a good idea. Ill try15
not to make terrible noises.16
THE COURT: Just so it doesnt rub against --17
THE WITNESS: If I hold it and work with my other18
hand maybe thatll work.19
THE COURT: Sure.20
THE WITNESS: Im not doing anything complicated.21
So, basically, if we were to say, this is the box that22
represents any individuals exposure to asbestos, its going to23
be made up of some different boxes and the boxes could be a24
job. It could be a particular product. It could be -- well,25
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yeah, basically a task, a job, different product. So if were1
thinking about products, you could have someone say, whos --2
their total exposure was to one product. Thats extremely3
unlikely because people are doing jobs not product specific4
things. People who work in a factory and stay there their5
entire life, could have exposure to really one, the product6
theyre making but the end users are really being exposed to7
multiple products that may contain the same form of asbestos8
but often are mixed exposures.9
So the most common occupational history is someone10
whos had -- may have a predominant exposure, but they have11
other exposures as well.12
Q And in your opinion, Dr. Welch, if someone has exposure, a13
portion of which is to chrysotile and a potion of which is to14
chrysotile mixed with an amphibole and a portion of it which15
might be insulation which is chrysotile with amosite in it, is16
it fair to exclude the chrysotile as contributing to -- as17
medical matter, as contributing to cause the mesothelioma?18
A No, not in my opinion. I mean, I think its very well19
established that chrysotile causes mesothelioma, as well as20
amosite. So that would be part of their cumulative dose, the21
chrysotile, the amosite in whatever combination that person was22
exposed.23
And, you know, in the U.S., of asbestos used in the24
U.S., 95 percent has been chrysotile. So, even if amosite is25
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more potent, theres been much more exposure --1
Q Wait till you get seated, Dr. Welch.2
A So even if amosite is five times as potent on a3
fiber-by-fiber basis, but 95 percent of the exposure is4
chrysotile, then amosite still is not as important in their5
total cumulative dose.6
Q Youve written the words individual susceptibility on this7
slide. Explain how individual susceptibility relates to the8
causation of mesothelioma.9
A Well, for all cancers, we know that there has to be some10
individual susceptibility because individuals even exposed to a11
very high dose, say people who smoked two packs a day for 5012
years, they dont all get lung cancer. And the same is true13
with mesothelioma, maybe more so because you have populations14
like insulators or textile workers and you could get ten15
percent of them getting mesothelioma, but the majority do not.16
Now, we dont know what those factors are, but we17
know just based on everything we know about the biology of18
cancer and the epidemiology of mesothelioma, that theres going19
to be individual susceptibility.20
Q Meaning some people with a little bit of exposure could21
get mesothelioma whereas other people with a ton of exposure22
never get it.23
A Yes, correct.24
Q Dr. Welch, do you still see patients on a regular basis?25
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A I do. I take off every Friday from my paying job and work1
as a volunteer to take care of people in my community who dont2
have health insurance.3
Q How many times do you come into courtrooms and testify at4
the request of an individual mesothelioma plaintiff in a5
lawsuit, generally speaking?6
A You know, its probably, Id say in the last ten years,7
its probably been twice a year. At most, three times a year.8
Q And how does the amount of time you spend doing that, how9
does that compare to the amount of time you spend actually10
seeing patients?11
A I spend more time on my mobile van than I spend in court,12
Im sure, if I added it up.13
Q Your mobile van is where you see your patients?14
A Right.15
Q Dr. Welch, in the real world if you were seeing patients,16
if you were presented with a patient with mesothelioma, who17
told you that they had used asbestos containing joint compound18
back in the early 70s as a do-it-yourselfer at a level that,19
say a half dozen times a year that was banned by the CPSC, the20
CPSC ban on joint compound and that was what they told you,21
what would you conclude about that persons mesothelioma and22
what caused it?23
MR. HOUFF: Object to the form. Incomplete24
hypothetical.25
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THE COURT: I agree, sustained.1
Q Dr. Welch, if the only -- if you were presented with a2
person with mesothelioma and the only exposure they had in3
their life was to asbestos containing joint compound, what4
would you conclude?5
MR. HOUFF: Objection. Same --6
THE COURT: Overruled.7
A Id conclude that that -- the asbestos in that joint8
compound was the cause of their mesothelioma.9
MR. FINCH: No further questions, Your Honor. Ill10
pass the witness.11
MR. HOUFF: Your Honor, can I have about two minutes?12
THE COURT: Yes, sir.13
MR. HOUFF: Thank you.14
COURT CLERK: Excuse me, Judge, apparently the last15
two objections did not get picked up on the record. The16
microphone wasnt on.17
UNIDENTIFIED SPEAKER: Yes, its on, he just doesnt18
get close enough --19
THE COURT: Mr. Houff, when youre making objections20
you have to make sure youre speaking into the microphone.21
Theyre not being picked up. So let me restate what they were.22
Mr. Houff first objected on the basis that the hypothetical was23
not complete. I sustained that objection. He then renewed24
that objection after Mr. Finch added some additional facts to25
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the hypothetical and I overruled that objection and then the1
witness answered. Is that a fair restatement, Mr. Hough?2
MR. HOUFF: Certainly fine with me, Your Honor.3
THE COURT: All right.4
MR. HOUFF: Thank you.5
MR. FINCH: Thats exactly correct, Your Honor.6
THE COURT: All right.7
MR. HOUFF: May I proceed, Your Honor?8
THE COURT: Yes, please.9
CROSS EXAMINATION10
BY MR. HOUFF:11
Q Good morning, Dr. Welch.12
A Good morning.13
Q You have been the -- I guess its the medical director of14
the sheet metal workers screening program since about 87,15
1987?16
A Yes. Im a consultant to their institute, yes.17
Q Okay. And thats a position you had continuously since18
about 1985 or 87?19
A Yeah. Yeah, somewhere around there, yeah.20
Q Okay. And in the sheet metal workers, I guess now its21
called the Sheet Metal Occupational Health --22
A Institute Trust.23
Q -- Institute Trust. Okay. And they have a website,24
correct?25
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A Yes.1
Q Okay. And Im just going to see if I can get this up.2
And does that look reasonably familiar as the home page -- Im3
sorry, nobody can read it.4
A And I dont have my computer glasses on, so I have to kind5
of move myself back.6
Q The SMOHIT, thats their logo, correct?7
A Yes, that is their log.8
Q And this is their -- like their home page?9
A Yeah. They just revamed their home page and I dont --10
but this is certainly from SMOHIT.11
Q Well, I printed it this morning.12
A Yeah. So then -- I havent seen their new -- thats what13
I was going to say because I havent seen all their new home14
pages. I was just looking at it recently. I thought, wow,15
they did all this new -- so I dont know whats on there. But,16
hopefully, its good.17
Q And, in fact, one of the other pages under resources18
includes a page that is entitled Motley Rice contact info. You19
see that?20
A Once you stop moving it, Ill look at it.21
Q All right, sorry. I apologize.22
A Yes. Okay, sure.23
Q And you recognize that?24
A Yeah. Like I said, this is -- the website is new, but I25
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do know that SMOHIT has a relationship with the Motley Rice law1
firm and has since the beginning.2
Q Well, and, in fact, theyve had a relation -- and Motley3
Rice law firm is Mr. Finchs law firm, correct?4
A Correct.5
Q Okay. And, in fact, the Motley Rice law firm has had a6
relationship with the Sheet Metal Workers Institute and the7
screening program since it was originated in 1985 or 87,8
correct?9
A Thats correct. The -- you know, diagnosing10
asbestos-related disease through the program so that the union11
felt they needed to have a way if individuals wanted to pursue12
a claim, to have a network of attorneys available to them. And13
Motley Rice sets up that network.14
Q Okay. Now, this is a little bit truncated on the right15
side and Im going to read this. The Institute has established16
and monitors a legal referral program for sheet metal workers17
suffering from asbestos exposure. Referrals are made to18
attorneys who handle claims against asbestos product19
manufacturers. The program is coordinated by one the premier20
asbestos litigation firms in the county and with good reason it21
is estimated that tens of millions of dollars will be recovered22
from asbestos companies over the next five years for the23
damages caused by asbestos, including loss of income, medical24
expenses, damaged health and shortened life expectancy. So25
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thats whats on the website about Motley Rice and the referral1
program, correct?2
A True.3
Q Now, in addition to that, screenings are, in fact,4
conducted by the Sheet Metal Workers Trust, correct?5
A Yes.6
Q Okay. And Im going to show you this -- Ive got about a7
three page document, or so, maybe four. Im going to show you8
one page at a time. Again, let me pull it back down a little9
bit, do you recognize the logo here?10
A Yes, I do.11
Q Okay. And this asbestos screening program is a medical12
evaluation and an educational session, correct?13
A Correct.14
Q Its not the same as a physical.15
A Right.16
Q And they talk about, this website goes on to talk about17
the education session. Part of the screening is -- let me turn18
it down here, an educational session about the potential19
health affects of asbestos and how to avoid future exposure.20
It also -- an opportunity to ask about other work hazards,21
correct?22
A Correct.23
Q Okay. Now, it says, what if the screening test show a24
problem -- if screening test show evidence of asbestos-related25
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disease, we suggest you schedule a followup meeting with the1
union. Information will be shared regarding continuing care2
and legal rights with physicians and attorneys on-hand to3
answer questions, correct?4
A Correct.5
Q Okay. Now, the next section talks about diseases from6
asbestos, correct?7
A Correct.8
Q And, there are several medical diseases it says that occur9
as a result of asbestos exposure. Ones of greatest concern and10
importance are pleural plaques, asbestosis, lung cancer, colon11
cancer and mesothelioma, correct?12
A Correct.13
Q Okay. Now, Doctor, you have talked about, and Mr. Finch14
talked about IARC and IARC has recently published information15
that concludes that the evidence epidemiologically for the16
relationship between asbestos and colon cancer and17
gastrointestinal cancer is insufficient, correct?18
A Correct.19
Q And thats a proposition with which you agree, correct?20
A Correct.21
Q And so, yet, it still appears on the website of an22
organization of which you are the medical director, that there23
is a higher incidence of cancers of the gastrointestinal tract24
in asbestos workers and doesnt this imply that this is an25
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asbestos-related disease?1
A Yes. And that fact sheet was written when we started the2
program. And although you actually pointed this out to me in3
my deposition, or someone did, and I have not yet updated it,4
but I plan to, to make is consistent with IARC.5
Q Now, if I turn to your report on Page 25, if you have it.6
A I do. Ill just --7
Q Where it says, chrysotile exposure causes peritoneal8
mesothelioma, correct?9
A Hold on one second.10
Q It says, there is no epidemiologic study that has11
determined that exposure to chrysotile asbestos without12
concomitant exposure to amphiboles causes peritoneal13
mesothelioma. Is that correct?14
A Yes.15
Q And is that what you believe?16
A Yes.17
Q Okay. And you talked about -- well, let me ask you also,18
while were here, to turn to Page 30 of your report.19
A Okay, Im with you.20
Q Toward the bottom of the page, it says occupational21
exposures to asbestos in the United States are known to have22
been primarily a mix of fiber types and sizes, correct?23
A Correct.24
Q We can generally assume that any individual worker in the25
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U.S., was exposed to a mix of fiber types and sizes, correct?1
A Yes.2
Q And you know Dr. Stayner, dont you?3
A I do.4
Q Dr. Leslie Stayner is a Ph.D Epidemiologist?5
A Yes.6
Q And he was, in fact, named as a witness in this case,7
correct?8
A I think thats true, yes.9
Q And you have written papers with Dr. Stayner, correct?10
A One, I think. One.11
Q Or in the process?12
A We have one thats in press.13
Q Okay.14
A Yes.15
Q Now, if Dr. Stayner says that there is convincing16
epidemiological evidence that chrysotile is less potent than17
the amphiboles with respect to mesothelioma, you agree with18
that, correct?19
A Yes. I think the issue is -- I mean at some point in time20
maybe it wont be convincing, but Ive addressed that in my21
direct. I think its hard to get an exact number but I think22
its reasonable to say amphibole is probably more potent.23
Q And I think weve covered this, but do you agree with Dr.24
Stayner when he says that everything we have studied including25
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what we consider chrysotile exposed workers really, in fact,1
had some mixed exposures because theres really not pure2
chrysotile thats generally been contaminated with amphiboles3
or something similar like geroite (sic) in Italy and the4
tremolite in Canada. So the factual fact of the matter is,5
everything weve studied has been a mixed exposure.6
A Well, no, I dont think that the Italian cohort is a mixed7
exposure.8
Q Okay. Well --9
A I actually think that there may be some tremolite in the10
Carolina textile plants but its so small that you really have11
to understand how small it is when you start to talk about that12
as a mixed exposure.13
Q Well, you were here yesterday, were you not, when whoever14
was cross examining Dr. Anderson, I guess it was Mr. Frost?15
A No, Mr. Finch.16
Q Mr. Finch, I apologize. Showed this particular document17
to Dr. Anderson, correct, the Turci study, the role of18
associated mineral fibers and chrysotile asbestos health19
affects, the case of balangeroite?20
A I remember they were talking about it, so I dont remember21
whether particular paper went up, but Im familiar with the22
paper.23
Q Youre familiar with paper.24
A Yes.25
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Q And, in fact, balangeroite has a lot of iron in it,1
doesnt it?2
A Do you have a copy of that paper that you can toss to me?3
Q I can give you this one. I didnt have a copy made. May4
I approach, the witness, Your Honor?5
A Just because I think it does address that in there. So6
instead of trying to remember what it said. When they list the7
chemical structure of balangeroite they do list it as an iron8
containing compound. I dont know if its a lot because my9
chemistry is a long time ago.10
Q Mine is longer. In fact, this paper does indicate that11
these authors believe that there is a contributing role or a12
potential contributing role for balangeroite in the induction13
of the mesotheliomas at this location, correct?14
A I dont think they say it as strongly as you did.15
Theyre really talking about -- what theyre talking about is16
that it doesnt appear to act like tremolite, it doesnt17
persist in the lung the way tremolite does. And that -- let me18
write what they say at the beginning.19
Q I think its like the last sentence in the abstract.20
A So they say, we feel that based on the general knowledge21
previously acquired on this mineral, and on the additional22
experimental results, we may rule out the idea that the23
balangeroite occasionally associated to chrysotile, might be24
largely responsible for the health affects found in humans, as25
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claimed in some epidemiology surveys and discussions.1
They point out that balangeroite has a crystal2
structure different from amphiboles and exhibits an echo3
persistence and a durability in body fluids of the same order4
and magnitude of chrysotile. And it says, was ever detected5
but I know they must mean never detected in exposed workers,6
the balangeroite because it never has been.7
Q Okay.8
A Under such circumstances, it may slightly contribute to9
the overall toxicity but cannot be considered responsible for10
the excess of mesothelioma found in Balangero in past and more11
recent studies.12
Q Okay. Thank you. Doctor, chrysotile particles are13
removed from the lungs within a year, generally, correct?14
A Chrysotile fibers?15
Q Yes.16
A You know, most of that is done, its not based on human17
data, and so, youre extrapolating from animal data and18
dissolution studies, so I dont actually have a number that Im19
comfortable with for that. But theyre definitely less20
persistent that amphiboles.21
Q On Page 3 of your report, Doctor, dont you say, at the22
stated rate, chrysotile particle would be removed from the23
lungs by dissolution in less than a year.24
A Yeah, and thats based on the animal studies. And thats25
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based on, Im quoting from the Institute of Medicine.1
Q And you talked about reaching the target spot, did you2
not?3
A Getting to the pleura, yes.4
Q Getting to the pleura, right. Now, youre not suggesting5
that amphibole asbestos doesnt cause mesothelioma, are you?6
A No, Im not.7
Q And youre not suggesting that amphobile asbestos doesnt8
get to the pleura, correct?9
A No. I presume it does because it does cause mesothelioma.10
Q Well, and its been clearly and unequivocally demonstrated11
in the epidemiology that amphobile asbestos causes mesothelioma12
in the pleura and peritoneum, correct?13
A Well, I would say, you know, if you want --- all of the14
information we have, not just the epidemiology, because to go15
from association in epidemiology to cause, you need to go16
through those Hill, Sir Bradford Hill criteria. But all the17
evidence we have is that amphobile has caused mesothelioma,18
yes.19
Q Well, in fact, the very first study that connected20
asbestos to mesothelioma with Dr. Wagner in 1960 was21
crocidolite, correct?22
A Correct, from South Africa.23
Q And, Dr. Selikoff in 1965 showed mesothelioma as an24
amosite factor, correct?25
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A Correct.1
Q And both amosite and presitolite are heavy in iron, arent2
they?3
A Youre saying, youre implying compare to chrysotile?4
Q Yes.5
A I dont really want to talk about the minerology. Im not6
an expert in geology.7
Q Are you aware that theres any iron in chrysotile?8
A Ive seen some of the studies about iron information but9
-- well, actually the structure, I think the structures of them10
are here in this Turci paper. When I was looking at it, I was11
just looking at it. So on this one theyre talking about the12
structure of the chrysotile from the Balangero mine and there13
is iron in it. They talk about the balangeroite as being iron14
rich which we talked about and then tremolite has iron in it.15
And this other -- another chrysotile specimen has iron in it.16
So it does contain iron.17
Q And do you recall -- did you see Dr. Feingolds testimony?18
A No, I did not.19
Q Okay. Now, iron released from some types of asbestos can20
serve as an oxidation reduction catalyst to produce free21
radicals, correct?22
A Thats correct.23
Q And the persistent inflamation response of the asbestos24
fiber leads to the release of reactive oxygen, correct?25
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A Well, thats one of the things that is a part of a1
persistent inflammatory response, is free radicals. Theres a2
lot of cellular activity and cellular cytokines that are3
released from any kind of injury, that bring in inflammatory4
cells. So not all the mechanism is free radical but thats5
part of it.6
Q Well, the long thin needles of amosite and chrysotile can7
get into the farthest reaches of the lung, correct?8
A The --9
Q Amosite and chrysotile --10
A That would be true for chrysotile as well.11
Q But my question was --12
A I mean, the long thin fibers are transported into the13
lung. Any fiber can get into the deep reaches of the lung.14
Sorry, Im jumping ahead of you, I guess.15
Q Well, the fact of the matter is, that the amosite and16
chrysotile because they are long and straight line up in17
laminar flow in the airways and can reach the farthest reaches18
of the lungs, essentially in tact, correct?19
A A fiber can line up in the laminar flow and get to the far20
airways. And we know that can happen for chrysotile even21
though chrysotile in its native habit is curly. When its a22
fiber, a single fiber, its not a curly fiber, its a straight23
fiber.24
Q Chrysotile fibers are much more likely to get impacted in25
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the branch points of airways and not reach the ovular space1
than amphiboles, correct?2
A I dont know that as a fact, no.3
Q When one sees asbestos bodies in the lung, asbestos body4
is an iron coated fiber, correct?5
A Yes. Its the reaction of the lung to the persistent6
presence of the fibers to coat it.7
Q Right. And about 98 percent of the time, these are formed8
on amphiboles, correct?9
A Yeah, I think thats right. I dont know the number, but10
definitely predominantly amphiboles.11
Q Now, you talked about the preferential area, the12
preferential location of short chrysotile fibers in the pleural13
space, correct?14
A I didnt say short. I said that some of the Suzuki15
studies suggest that theres preferential translocation of16
chrysotile.17
Q Well, there are problems with the Suzuki study, arent18
there?19
A Theres problems with any study, I guess.20
Q Well, its been criticized pretty significantly, hasnt21
it?22
A Do you want to be more specific?23
Q Well, in the fact -- in the 2003 EPA draft of the24
technical support documents for a protocol to assess asbestos25
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risk, the Suzuki study was characterized as having used a1
non-standard technique without any controls?2
A Well, Im not familiar with that criticism.3
Q And do you also know whether or not as was asserted there,4
that water was used during the digestion process and that water5
can contain as many as 30,000 fibers per liter of small6
asbestos fibers?7
A I know that was a concern and I somehow thought that that8
was resolved and -- I mean, yes, water can contain asbestos but9
I dont think there was any evidence that the water he used10
contained fibers.11
Q Well, wasnt it suggested that his reports were12
contaminated because most of the fibers he found were either in13
pleural plaques or tumor?14
THE COURT: Or what, Im sorry?15
MR. HOUFF: Were found in pleural plaques or tumor.16
THE COURT: Tumors, okay. Thank you.17
A But that still tells you that the chrysotile is out in the18
pleural space, so I dont really understand why thats a19
problem.20
Q Well, there was a more rigorous study by Boutin,21
B-o-u-t-i-n in 1996 in the parietal pleural that found a22
mixture of fibers including long amphibole fibers among living23
patients with asbestos-related conditions, correct?24
A Yes. I think youd expect to find amphibole fibers in the25
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pleura as well.1
Q And the mere presence of short chrysotile fibers does not2
imply causation, correct?3
A Thats -- I dont really understand your question. If I4
were looking at an individual person that had pathology and had5
short chrysotile fibers in their pleura, that would be one of6
the things I could take into account in making my opinion.7
Q No single experiment or epidemiological study can provide8
decisive data on the effects of a toxin on people, correct?9
A No, I wouldnt say that absolutely. Some things are so --10
one study could be definitive, but generally, you know, when --11
there was some discussion previously about the Bradford Hill12
criteria and one of them is consistency, you know. The same13
finding is repeated in other studies. So, its generally what14
we like to see, but usually I dont like to say never. You15
know, that can never happen because there could be a16
circumstance where thats the case.17
Q Well, on Page 14 of your report, dont you say, no single18
experiment or epidemiological study can provide decisive data19
on the effects of a toxin on people?20
A Yes. I was just looking to see if that was a quote from21
anybody, but no. Yes, thats me.22
Q Dont you also agree that studies in humans are likely to23
be confounded by variables other than the one of interest and24
for this reason every study must be scrutinized not only for25
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such confounders, but for defects in study design, data quality1
and the strength of statistical correlations?2
A Generally thats what youd look for. I mean, you go into3
a study, an epidemiologic study, things that are confounders4
which are other factors that could cause the effect youre5
looking at, you do your best to collect data on that. And if6
you cant, you know, if, for example youre doing a cohort7
study of lung cancer and you cant get information on8
individual smoking, then you can do your best to understand the9
impact of smoking without that. So, in every -- no study is10
perfect.11
But, you know, I just was thinking that in the12
Netherlands they did an updated risk assessment of exposure to13
asbestos and potency. And they looked at all the available14
studies and used only the highest quality ones, which then gets15
you fewer cases, but higher quality exposure assessments and16
the potencies came closer together and were higher.17
Q And what study was that?18
A Its a -- theres two papers. Theres Birdoff and I think19
its -- its either Leytner (phonetic), its L-e-y-t-n-e-r or20
L-e-t-y-n-e-r, from I think 2009.21
Q Well, Doctor, on Page 15 of your report you do say what22
Ive just said, correct? Studies in humans are likely to be23
confounded by variables other than the one of interest and for24
this reason, every study must be scrutinized not only for such25
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confounders but for defects in study design, data quality and1
the strength of the statistical correlation.2
A Are you on Page --3
Q Fifteen.4
A Fifteen. So thats probably a quote out of Dr. Kassirer?5
Q It looks like it.6
A Its under assessing evidence and causality, right?7
Q Right.8
A Yeah. So thats a quote out of his book.9
Q Well, do you agree with it?10
A Yeah, generally, yeah, I do.11
Q And you agree that just because a study has been published12
in a prestigious peer-reviewed journal is no assurance that its13
results or conclusions are correct, right?14
A Yes.15
Q And as corollary to that, just because a famous person16
publishes something doesnt mean its necessarily correct,17
right?18
A Yeah. I think thats probably true. I mean famous people19
get a -- they get a head start. You say, whoa, that came from20
Dail & Peto, Id better read that. But they could be wrong.21
Q Right. Well, you talked about Dr. Lemen and Dr. Lemen22
testified for years for asbestos plaintiffs, didnt he?23
A I dont know about Dr. Lemens testifying. I know he has,24
but I dont really know years or how much.25
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Q And, Dr. Nicholson also testified for years for1
plaintiffs, correct?2
A I dont know that at all, one way or another.3
Q Now, on Page 40 of your report you say that in4
occupational epidemiology classification of the exposure is5
obviously very important, correct?6
A You said four zero, 40?7
Q Yes, 40.8
A Yes, sure.9
Q Now, you talked for a moment -- well, I dont need to talk10
about it. You talked about Dr. Eaglemans (phonetic) case11
report, correct?12
A Yes, I did.13
Q And that is a case report, it is not an epidemiological14
study, correct?15
A Correct.16
Q Now, do you know Dr. Eagleman?17
A I do.18
Q And do you know that his opinion testimony on causation19
has been ruled out in acetyl cases?20
A In what cases?21
Q Acetyl. Popcorn lung cases.22
A Oh, okay. No, Im not aware of that.23
MR. FINCH: Objection to the relevance of popcorn24
lung, Your Honor.25
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MR. HOUFF: Your Honor, my point is that what the1
reputation and what the history of the witness testifying or2
publishing a document, in publishing a case report is relevant3
to how much weight you should give it.4
THE COURT: Im sorry. How much weight should be5
given to a peer-reviewed versus non --6
MR. HOUFF: No, to this case report.7
THE COURT: Oh, to the case report. Okay. Does the8
case report deal with popcorn lung cases?9
MR. HOUFF: No. The case report deals with drywall.10
THE COURT: Well, then why is that relevant to a11
popcorn lung opinion?12
MR. HOUFF: Because its the same opinion, Your13
Honor.14
THE COURT: Well, I -- okay. I dont know. Ill --15
MR. FINCH: I object to that characterization.16
THE COURT: Well, I dont --17
MR. FINCH: A popcorn lung opinion being the same as18
an opinion relating to chrysotile.19
THE COURT: Okay. I dont have any --20
MR. HOUFF: Ill withdraw the question. Ill21
proceed, Your Honor.22
THE COURT: Okay.23
Q Doctor, you talk about the Rolland study. That was24
published twice, correct?25
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A The which study?1
Q The Rolland, R-o-l-l-a-n-d.2
A Oh, Rolland, yeah. Actually, I dont think I talked about3
it, but its in my report.4
Q Its one of your lists, correct?5
A The one I was referring to as an abstract, I think, from6
2006?7
Q Right.8
A Those -- as far as I know, those particular -- what he9
presented in the abstract has not been published.10
Q Right. And, in fact, he did make a publication of the11
same data that did not include a dose, correct?12
A Thats -- his abstract was talking about the French13
mesothelioma surveillance system and theres been multiple14
publications about that cohort. But as far as I know, hes not15
published the one that included the dose information.16
Q Right. And the Loomis case that you talked about is a17
publication by Dr. Stayner, correct?18
A Hes probably one of the authors. That group is Loomis,19
Hines, Stayner, Dement and some other people.20
Q Right. And they could not find a dose response21
relationship for mesothelioma in that study, could they?22
A No. Theres too few cases to do dose response if you only23
have four mesos and four pleural cancers.24
Q Now, one of the things that you cited as well was the Li25
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