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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, .
. January 9, 2013
Defendants. . 8:18 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 AvenueHamilton, New Jersey 08619
E-mail: [email protected]
(609) 586-2311 Fax No. (609) 587-3599
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2
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 1300
Baltimore, 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 &
RhoadsBy: 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.
ZACHERY 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
For Honeywell: McDermott Will & Emery
By: NAVA HAZAN, ESQ.
340 Madison Avenue
New York, NY 10173
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5
I N D E X
PAGE
WITNESSES
DR. CHARLES H. MULLIN, JR.
Continued Cross Examination by Mr. Sheppard 8
Cross Examination by Mr. Dorsey 33
Redirect Examination by Mr. Evert 57
DR. KIM E. ANDERSON
Direct Examination by Mr. Houff 60
Cross Examination by Mr. Mr. Finch 90
Redirect Examination by Mr. Houff 132
SUSAN RATERMAN
Direct Examination by Mr. Frost 143
Cross Examination by Mr. Houff 175
Redirect Examination by Mr. Frost 182
DR. ARNOLD BRODY
Direct Examination by Mr. Frost 183
Cross Examination by Mr. Houff 208
Redirect Examination by Mr. Frost 215
JAMES SINCLAIR
Direct Examination by Mr. Sheppard 218
Cross Examination by Mr. Jackson 231
MARK IOLA
Direct Examination by Ms. Ramsey 241
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EXHIBITS ID. EVD.
D-127 Dr. Anderson C.V. 60 62
D-57 PowerPoint Presentation
(Demonstrative Exhibit) 60
D-58 Dr. Anderson Report
(Demonstrative Exhibit) 61ACC-1007 Nine View Points by Sir
Austin Bradford Hill 109
ACC-1008 Dr. Lemens Article 111
ACC-1009 IARC Executive Summary 114
ACC-1011 Berman and Crump Paper 126
D-59 Response to Mr. Brodkin 133
D-60 Response to Mr. Dement 133
E-384 Video 156
M-136 Raterman C.V. 174
M-135 Raterman Report 174
ACC-1004 PowerPoint Presentation 174
ACC-1005 Photo 175M-131 Brody C.V. 184
M-130 Brody Report 185
ACC-1006 Slide Show Presentation 185
ACC-87 James Sinclair C.V. 238
ACC-1012 James Sinclair Report
(Demonstrative Exhibit) 238
ACC/FCC 304 Document 241
ACC/FCR 338 Document 241
ACC/FCR 176 Document 241
ACC/FCR 113 Document 241
ACC/FCR 95 Document 241
ACC/FCR 196 Document 241
ACC/FCR 385 Document 241
ACC/FCR 386 Document 241
ACC/FCR 227 Document 241
ACC/FCR 388 Document 241
ACC/FCR 390 Document 241
ACC/FCR 179 Document 241
ACC/FCR 414 Document 241
ACC/FCR 123 Verdict Sheet 241
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7
MR. SHEPPARD: Good morning, Your Honor.1
THE COURT: Please be seated. Dr. Mullin, I see they2
did not give you a day to sleep in.3
(Laughter)4
THE COURT: Okay. This is the continuation of the5
evidentiary hearing on estimation in the Specialty Products6
Holdings case. The list of participants I have by phone, Laura7
Ascher, Dan Casiero, John Chase, Daniel DeFranceschi, Robert8
Gonnello, Karen Grivner, Jonathan Guy, Nava Hazan, Andrew9
Kramer, Laurie Krepto, Jamie OConnell, Kathleen Orr, Domenic10
Pacitti, Bronwyn Rinehart, Zachary Shapiro, Paul Sheaffer,11
Nikki Wakeman, Davis Wright and Richard Wyron. Are there any12
changes in entries of appearance in court?13
MR. SHEPPARD: None for the ACC, Your Honor.14
MR. HARRON: None for the FCR.15
MR. GORDON: None for the debtors, Your Honor.16
THE COURT: Okay. Are you ready, Dr. Mullin?17
DR. MULLIN: I am.18
THE COURT: Youre still under oath, sir.19
DR. MULLIN: I understand.20
DR. CHARLES H. MULLIN, WITNESS, PREVIOUSLY SWORN21
THE COURT: Okay. When youre ready.22
MR. SHEPPARD: May I, Your Honor?23
THE COURT: Yes, Mr. Sheppard. Good morning.24
MR. SHEPPARD: Just one matter of brief housekeeping,25
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Your Honor. With our demonstrative exhibit yesterday weve1
taken the liberty of re-marking it so that -- if I can hand2
this up to the Court? If I may?3
THE COURT: Oh. Thats -- I have a set. Okay.4
Thank you.5
MR. SHEPPARD: They were not exactly in the order6
that I had put them yesterday.7
THE COURT: Oh. Okay. Thanks.8
MR. SHEPPARD: And let the record reflect that Ive9
provided a copy to debtors counsel and to the witness.10
THE COURT: Thank you.11
CONTINUED CROSS EXAMINATION12
BY MR. SHEPPARD:13
Q Dr. Mullin, good morning.14
A Good morning.15
Q I may have to go back just a little bit to reorient us, if16
thats okay. Im certainly not going to try to mischaracterize17
your testimony. All right?18
A Thats fine.19
Q Lets go back to Slide 2, please?20
THE COURT: The ELMO?21
MR. SHEPPARD: Oh. Can you switch it from the ELMO?22
Im sorry.23
Q Dr. Mullin, weve talked a little bit about this24
yesterday, and I just want to make sure, again, that we -- that25
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Mullin - Contd Cross/Sheppard 9
I understand that we understand exactly what it is that youre1
measuring here with at least one of your forecasts. You2
testified that youve done a number of different forecasts, is3
that right?4
A Correct.5
Q And that youre recommending that all of them, in some6
fashion or another, could be accepted by the Court depending on7
her findings on rulings of law, isnt that right?8
A Thats correct. I tried to quantify the loss under9
alternative theories.10
Q Now, speaking specifically about the -- what I call the --11
the damages, or several liability measure, which is the first12
one that you opined in your report, correct, the $95 million13
estimate?14
A The several share of liability. Yes.15
Q Yes. Youre not suggesting, Dr. Mullin, that the16
plaintiffs would accept those disaggregated amounts in17
settlement, are you?18
A Im not suggesting that in a joint and several State Court19
that thats what they would accept, because that has transfers20
of liability imbedded into the State Court rules. So, in that21
framework I dont think they would accept that amount. If they22
were in a several jurisdiction they may, but its a different23
set of obligations.24
Q And as I understand your report, the vast majority of25
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Mullin - Contd Cross/Sheppard 10
states are either joint and several, or hybrid, isnt that1
right?2
A I mean, theres been a few different lists of3
categorizations by various sets of counsel in that regard. I4
think whats very true, as opposed to counting up states, 98,5
99 percent of the claims are filed in jurisdictions that have6
some form of joint and several liability rules.7
Q Okay. So, in 95 percent of the claims what youre8
actually measuring has nothing to do with the reality of the9
tort system, right?10
A It does. Its just -- its one component of it. This is11
-- it is liability. Its their share as though all the co-12
defendants were back with them. So, if -- I said a few times,13
if Johns Manville, Eagle Picher, U.S.G., all those co-14
defendants were in the courtroom with them, its under that15
world what they would pay.16
Q Okay. But thats not the world of the United States of17
America tort system, isnt that right?18
A I mean, those companies have gone through reorganizations.19
They are not there today.20
Q So theyre not in the room, correct, Dr. Mullin?21
A Thats correct.22
Q And in your theory, Dr. Mullin, you also postulate that23
there would be some reduction based upon this theory of24
implicit defense fees, right? I have costs up there, but I25
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Mullin - Contd Cross/Sheppard 11
think your term was fees, right?1
A I mean, its -- as I said, its a reduction relative to2
what they were paying in the 2000s. Its an increase relative3
to what they were paying in the 1990s.4
Q And again, you have no evidence to suggest that a5
plaintiff would accept that amount, do you?6
A The -- if you want to look at -- they would need to change7
how they were choosing to defend claims. I mean, there is8
evidence that when they individually evaluate the claims, as9
opposed to doing an inventory deal, they pay less per claim and10
the claimants do accept less. So, we see that when it depends11
on the settlement strategy that the defendants take, so when12
they take a more aggressive defense posture they pay more to13
their attorneys and they pay less to the claimants.14
Q Okay. So its only in a group settlement situation where15
you have any evidence at all that a plaintiff may accept that16
amount that youre postulating in this theory?17
A Im saying you can -- I dont think I agree with that.18
Im not sure exactly where youre going.19
Q Well, let me try it this way. You said that its possible20
where a plaintiff engages in a group settlement that they might21
agree to some reduction based upon implicit defense fees, is22
that right?23
A Well, I think we see an empirical fact that they did. So24
when the claims were individually evaluated, the average25
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Mullin - Contd Cross/Sheppard 12
payment to claimants was about 45,000 per claim. When they did1
large inventory deals, it was about 63,000 per claim. So we2
can see factually that thats actually what happened there.3
Q Okay. And I believe you testified yesterday that that4
average amount that -- between the plaintiff and the debtors5
was the basis for coming up with the aggregate amount that was6
used in these group settlements, an average based upon the7
historical negotiations between the parties, right?8
A I think what I said yesterday was that if were talking9
about the second or the third or the fourth group inventory10
deal, that they would have naturally referred to the earlier11
large deal that they did. They wouldnt have started the12
negotiation from scratch. I wasnt there. I didnt see them13
do that. That seems very logical in a negotiation position.14
Q So the past average settlement would be at least the15
starting place for predicting the future, right?16
A If what you want to predict is if they did another group17
deal with the Simmons firm, a logical place to start would be18
what was the previous group deals?19
Q And I believe you testified yesterday that you would20
expect that Bondex, if it were in the tort system, would21
continue with this trend of increasing group deals, right?22
A The economic incentive for them is when a law firm has a23
large enough group of claims, that that makes sense to do, its24
less expensive to them. They can have a net savings, so its25
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Mullin - Contd Cross/Sheppard 14
anybody used the term implicit defense fees the way you have1
here?2
A Theyve talked about how the transaction costs cause it to3
deviate.4
Q Okay. My question was pretty simple. Implicit defense5
fees. Is it used in any of those --6
A Thats a term that I just defined a term in my expert7
report to refer to a concept in the literature.8
Q So, your theory is so novel that you actually had to make9
up a term?10
A No. The theory has been in the literature for 40 years.11
They didnt have a term. They just called it the transaction12
cost model of settlement, which is a long, wordy thing to say13
all the time how the transaction cost model of settlement14
changes something. I shortened that to implicit defense costs15
to contrast it with the explicit defense costs. That was my16
choice of how I wanted to do the exposition, but the concept17
has been there for 40 years.18
MR. SHEPPARD: Can we have Defendants Demonstrative19
51? I think its 51.20
THE COURT: Im sorry. What are we looking at, Mr.21
--22
MR. SHEPPARD: Defendants Demonstrative 51, Your23
Honor.24
THE COURT: All right. Thank you.25
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Mullin - Contd Cross/Sheppard 15
Q Okay. Dr. Mullin, I think this was one of the slides that1
Mr. Evert showed you yesterday on direct, correct?2
A Correct.3
Q And this has to do with your allocation across the three4
different companies of the liability, and here were talking5
about the historical payments, isnt that correct?6
A Thats correct.7
Q Okay.8
MR. SHEPPARD: Your Honor, give me one second,9
because I had written D-51, but I may have gotten the number10
wrong.11
(Pause)12
MR. SHEPPARD: Is that the one thats up there? Your13
Honor, Im sorry. We didnt get a marked set yesterday, so I14
was trying to keep up. Its the historical payments by15
exposure dates.16
UNIDENTIFIED SPEAKER: Thats it.17
MR. SHEPPARD: Okay. Is that up there? All right.18
Q Sorry about that, Dr. Mullin.19
A Youre on D-50 now, I think?20
Q Oh. So, is it DD-50?21
A This is D-50, I believe.22
Q Okay.23
MR. SHEPPARD: Debtors Demonstrative 50. I24
apologize, Your Honor.25
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Mullin - Contd Cross/Sheppard 16
Q Okay. And here I think youve described how you1
allocated, based upon your review of the historical claims the2
different claims and where they fell in the three different3
time periods, correct?4
A This is really just a tabulation of the historical data.5
Its just purely based on the alleged exposure dates.6
Q Okay. And if it was in the middle of the column, then7
that was solely in that era, is that right?8
A I mean, the first row thats labeled single era means the9
person is alleging exposure only in one of the three distinct10
time periods.11
Q Okay. And then you have some numbers here in the middle12
that straddle between the two, right?13
A Correct.14
Q And if you look at those, 7.7, 7.0, 22.8, 47.7, which15
represents the amount of liability that is either in Reardon16
SPHC or SPHC Bondex, or solely SPHC, that comes up to 85.217
percent, is that right?18
A Its approximately 85 percent.19
Q Thank you.20
MR. SHEPPARD: Can I have D-13? Defendants21
Demonstrative 13?22
Q All right. Now, Dr. Mullin, I also think we talked23
yesterday a little bit about a judgment, and certain24
assumptions.25
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Mullin - Contd Cross/Sheppard 17
A I think we had this issue once yesterday, but this appears1
to be a truncated version of the exhibit, at least what Im2
observing.3
Q Okay.4
THE COURT: What exhibit is it? Im sorry.5
MR. EVERT: Demonstrative D-13, Your Honor.6
THE COURT: Thank you.7
MR. SHEPPARD: Your Honor, may I approach?8
THE WITNESS: I have them all. They were up here9
from yesterday.10
Q Would you agree with me, Dr. Mullin, that in order to do a11
forecast any forecaster would have to make certain judgments12
and assumptions?13
A Youre going to have to make certain judgments, and14
theres a reason theres a level of expertise, yes.15
Q Right. In fact, youve made judgments and assumptions in16
this case, havent you?17
A Correct.18
Q Okay. And I think Mr. Evert, in D-13, took you through19
one where if you had plotted a straight regression line on that20
bar graph, you would end up going well past 100 percent of the21
entire mesothelioma population by -- I guess its somewhere22
around 2030?23
A Right. 2030, 2035.24
Q Okay. And you know that thats simply impossible, right?25
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Mullin - Contd Cross/Sheppard 19
Q And then you did the same thing in D-14, right, except1
this time we went down, and this was on the average2
settlements, right?3
A Correct.4
Q And in fact, by -- it looks like about 2016, 15, it looks5
like the plaintiffs are paying the defendants, right? Or the6
debtors? Isnt that right?7
A I mean, it shows you its nonsensical. Thats right. You8
cant just simply extrapolate. You need to understand the9
underlying process of whats going on to develop a reliable10
estimate.11
Q Right. And once you understand that you have to make12
certain judgments, then, on how this line doesnt really fit13
the reality, right?14
A Well, I mean, I view it much more as letting the data15
educate you about whats actually happening. I mean, you dont16
just make up a theory. You explore the data and you let it17
educate you about what was the underlying process. I mean,18
here we saw this was driven down by the advent of the large19
inventory deals. When we looked at individually evaluated20
claims that goes away.21
Q Okay.22
A And its a process of getting educated from the data.23
Its not just making an arbitrary decision.24
Q Okay. Lets go to D-32, Defendants Demonstrative 32.25
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Mullin - Contd Cross/Sheppard 20
There youre testifying, Dr. Mullin, this is your $700 million1
nominal --2
(Pause)3
MR. SHEPPARD: Sorry, Your Honor. I think I have the4
wrong number up here.5
THE WITNESS: Youre probably looking for 33.6
MR. SHEPPARD: Exhibit 33?7
THE WITNESS: Thats -- Im guessing, based on what8
you said.9
MR. SHEPPARD: Yes. Thank you. I must have been one10
number off.11
Q Now, this is a model of one of the possible alternatives12
that you suggested to the Court, right?13
A No. This was -- the one on the screen is not the full14
image again, but the one Im looking at in front of me is much15
more like what I started on the first couple demonstratives I16
put up. This is simply doing a blind extrapolation, just17
overlying the Nicholson curve on the history without looking18
into the data again. So its that simple extrapolation once we19
have a picture of the history, and says that comes out in the20
neighborhood of $700 million.21
Q Okay. And unlike your several share analysis, youre22
including all the claims here, including group settlements,23
right?24
A Thats correct.25
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Mullin - Contd Cross/Sheppard 21
Q Okay. And I think the only difference then is that you1
have a different starting point than Dr. Vasquez and Dr.2
Peterson in terms of how you calculate average settlement3
amount, isnt that right?4
A The only difference between what?5
Q Between their forecast method and yours in this particular6
scenario.7
A No.8
Q Okay. Thats -- youre not doing just a basic9
extrapolation? Isnt that what you said?10
A Well, one, I -- this isnt a forecast I put out. I said11
this is a simple extrapolation. I wouldnt characterize it as12
a forecast. I dont think it has the rigor behind it.13
Q Okay.14
A What I did subsequently I would. If you want me to15
contrast this to what Dr. Vasquez or Dr. Peterson did, Dr.16
Vasquez and Dr. Peterson both went in, took an incidence curve.17
I believe youre correct that Dr. Peterson used the Nicholson18
curve. Dr. Vasquez used KPMG curve, as well as the Peto19
method, so he used a different forecast of futures. Then they20
went in and each of them forecast fairly different pay rates.21
They forecast fairly different propensities to sue, and they22
forecast very different average settlement amounts. So they23
went in and did each of those components. We could get into a24
whole discussion of what those components are and how they did25
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Mullin - Contd Cross/Sheppard 22
them, but Im saying its not -- its not just as simple as you1
stated that its a difference in the average settlement value.2
They -- theres differences in every single one of those3
components that went into their forecasts.4
Q But then you extrapolated out in basically the same5
amount?6
A I mean, Dr. Peterson extrapolated along the Nicholson7
curve. Dr. Vasquez used the KPMG curve, which is fairly8
indistinguishable from the Nicholson over this time period, but9
then he also used a methodology called the Peto method, which10
forecasts approximately 20 percent more claims in his report11
than the Nicholson curve would forecast, and he took a weighted12
average of the two, 50/50. So, his trend line is higher13
because of putting half weight on the Peto method. So, there14
is a distinction there.15
MR. SHEPPARD: Okay. We can take that one down.16
Q I think you testified yesterday, Dr. Mullin, that in doing17
your analysis you looked at different types of data, including18
data from the CCR, isnt that right?19
A I looked at data from the CCR to confirm that the20
methodologies I was using were reliable.21
Q In fact, you said you took great comfort from that data,22
isnt that right?23
A I mean, across all the validity checks that I did on the24
econometrics I was using, those reinforced the reliability of25
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Mullin - Contd Cross/Sheppard 23
the methods I employed.1
Q Okay. And, Dr. Mullin, you chose to use for your data set2
from the CCR the period of 1997 to 2000, correct?3
A Correct.4
Q Okay. You didnt include all the mesothelioma claims, did5
you?6
A I included all the mesothelioma claims in that time7
window.8
Q Okay. But you excluded anything outside that time window?9
A I did.10
Q Okay. So you made a judgment to use this period, 1997 to11
2000, and to ignore these other claims?12
THE COURT: Im sorry. I apologize, but Im lost.13
Are you talking about the comparison with the CCR data? I14
thought that was non-malignant data. Am I -- did I15
misunderstand something?16
MR. SHEPPARD: He used both, Your Honor, as I17
understand it. But Im talking now about just the18
mesotheliomas.19
THE COURT: Okay. Well then, somebody has to go back20
and show me where the CCR data was malignant data versus non-21
malignant, because maybe I misunderstood something in the22
testimony.23
MR. EVERT: Your Honor, Dr. Mullins direct, we only24
presented his testimony, youre correct, in regard to non-25
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Mullin - Contd Cross/Sheppard 24
malignant data.1
THE COURT: Okay. Then Im not sure what the line of2
questions is all about.3
MR. SHEPPARD: Well, Your Honor, in his report he4
relied upon the mesothelioma cases as well, but if theyre only5
presenting the non-malignant data, then --6
Q Is that for the same period, 1997 to 2000?7
A The non-malignant claims?8
Q Yes.9
A Yes.10
Q Okay. Isnt that less than half of the CCR data that was11
available to you?12
A I dont know the exact counts. Its likely.13
Q And you also testified -- okay. In your report, Dr.14
Mullin, Exhibit 13 in your report in your case-in-chief, plots15
out the CCR mesothelioma payments.16
A Can you give me a second to catch up with you?17
Q Sure.18
A Thank you.19
THE COURT: Now -- Im sorry, but where are we now?20
MR. SHEPPARD: Your Honor, I am in Dr. Mullins21
report, Exhibit 13, Page 39.22
THE WITNESS: I actually dont have a copy of my23
original report up here.24
THE COURT: Its -- yes. I dont think one has been25
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Mullin - Contd Cross/Sheppard 27
in the computer code, which wasnt material to the analysis,1
but as it turned out we had had age at death, I believe, as2
opposed to age at diagnosis, when age at diagnosis was what we3
intended to use. We subsequently ran it with the intended4
variable and it doesnt change it, but that was an error in the5
original calculation.6
Q So, it was an error in your computer code which resulted7
in you aging the plaintiffs in this case, isnt that right?8
A Correct. I mean, in the -- we intended to run all the9
ages consistently across all the analyses we did. In this one10
there was a mistake in the computer code, and it picked up the11
wrong age variable, and as I said, it didnt make any material12
difference to the analysis, but that error did exist in the13
code.14
Q Another way that you checked this analysis was by looking15
at Texas. Do you recall that in your report?16
A So, I think were switching now?17
Q Yes, we are.18
A When we say this analysis, were switching to the joint19
and several --20
Q The joint and several analysis.21
A Oh. Correct. That was one of the three things I did was22
I looked at, I think what I referred to earlier as a -- kind of23
a quasi-natural experiment that existed in Texas.24
Q And I believe your theory there is that because Texas went25
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Mullin - Contd Cross/Sheppard 30
damages. Its the damages the claimant suffered, so if a1
claimant is younger they have more years of lost life and they2
tend to have higher damages. Thats what we saw in the verdict3
data thats a very strong empirical relationship. Its --4
liability is a question distinct from damages.5
Q As I understand it, though, the reason that you chose age6
was because it was so closely correlated with those damages,7
isnt that right?8
A It is very closely correlated with damages.9
Q And you had to choose a variable and you decided in your10
judgment to choose age, right?11
A Correct.12
Q Okay. Take a look at the graph I have which is part of13
ACC/FCR Demonstrative 1002. If you assume, Dr. Mullin, that we14
did an R-squared analysis of these other factors, pain and15
suffering, state, law firm, group settlement, the higher the16
R-squared value the more closely correlated the factor is,17
isnt that correct?18
A I think -- well, first, youre doing an analysis on19
verdicts here? Is this verdict data? What are the bars20
representing? What analysis -- what are you analyzing?21
Q Were analyzing all settlements and all data.22
A So this is settlements, not verdicts?23
Q Yes.24
A So this includes all the transaction costs that are25
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Mullin - Contd Cross/Sheppard 32
These are the settlements that are driven by transaction costs.1
Thats why age and alive or dead doesnt matter so much,2
because the damages isnt effecting the settlement. So if you3
were to replicate this graph once for all the settlements below4
$200,000, the age bar will be almost zero. Alive versus dead5
will be almost zero. The other numbers will be higher. If you6
look above 200,000 and you do this graph the age bar is high,7
and all the other ones get very low. And thats the point.8
You know, damages is really only coming into play on the9
variables that are connected with damages on the high value10
settlements. The rest of them they dont because its not11
damages that are driving the settlement, so this is exactly12
what youd expect if you look at the settlements instead of the13
damages that the claimant suffered.14
Q Now Im not going to mince words with you, Dr. Mullin. I15
guess the last thing is on the PIQs, there was a substantial16
amount of data that came in on those, isnt that right?17
A Yes.18
Q Okay. And it required a lot of going through papers and19
coding things, right?20
A Many responded with documents as opposed to filling out21
the forms, so you had to review all the documents.22
Q And youre certainly not assuming that that data23
collection process was ever free, right?24
A Oh, no. Its never error free. If you go through 200025
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Mullin - Cross/Dorsey 34
Q Now, Im not going to use the exact numbers, Dr. Mullin,1
because Im awful at math, so Im just going to use2
hypothetical numbers.3
A Thats fine.4
Q So if we assume, on the group settlements, the 17 group5
settlements that youve testified about, if we assume there6
were 1,000 claims that were resolved as a group of that group7
settlement, okay? Are you with me so far?8
THE COURT: All 17, or one?9
MR. DORSEY: All 17, Your Honor.10
THE COURT: All right.11
Q Its more than that, but Im just using a round number.12
So, 1,000 claims were resolved by that group settlement. So,13
across those docket things 100 claims would have been dismissed14
in those group settlements, is that fair?15
A About ten percent.16
Q About ten percent?17
A About ten percent were dismissed.18
Q Okay. So that left 900 claims -- 900 claims that were19
resolved by those group settlements. And then what the debtors20
did was say were just going to pay a flat amount, we dont21
care how you, plaintiff lawyers, whack it up among those 90022
claimants, were just paying you a flat amount to settle those23
claims. Is that fair?24
A My understanding is that that occurred at the point of the25
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Mullin - Cross/Dorsey 36
to 75.1
Q 75?2
A It falls between 70 and 75 percent.3
Q Lets use 70, again, for a round number.4
A Sure.5
Q Okay. So you assumed that 700 of those 1,000 cases would6
have been dismissed?7
A Had they been individually evaluated.8
Q Okay. That left 300 claims, correct?9
A Correct.10
Q And then what you did was take those 300 claims and11
allocate them between high, low and medium-value claims. Is12
that fair?13
A Correct.14
Q Okay. So, lets say -- how many would you have assigned15
to -- of the 300 to high value?16
A I dont remember the statistics that well from here.17
Q Well just use round numbers hypothetically, lets say 50.18
A About 55 out of 275, so its going to be 60, 65, probably,19
something in that range.20
Q Okay. Well make it 50 again for my easy math problem.21
Okay?22
A Okay.23
Q So, 50 would have been high value. And then how many24
would have been -- would you have assigned to a mid value? Can25
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Mullin - Cross/Dorsey 39
was to get the count of claims in each category. That was my1
motivation for doing it. I mean, Ive said repeatedly its2
true, the group settlements had an extra transaction cost3
premium of about 18,000 per claim, that was the --4
Q So it would have -- Im sorry.5
A -- gap between that and $45,000.6
Q Okay. So it would have reduced the average claim value7
down to $45,000? Is that fair?8
A Individually evaluated, the average is 45,000.9
Q Okay. And then you took that 45,000 average claim value10
and you used that to estimate the future liabilities of the11
debtors? Is that correct?12
A Well, not from the groups. I took -- and I think youre13
trying to simplify my analysis, it sounds like, into the14
framework that Drs. Vasquez and Peterson used. I didnt use a15
single average settlement value. Thats not how I think is the16
right way to do it. That may be the overall average resolution17
value. The 45 includes all the zeros. It includes everything18
when you individually evaluate a claim. I feel like its much19
more reliable to break them down into the groups where theres20
the high value, the mid value, the low value, and the21
dismissed. Clearly the dismissals get zero. The low value in22
the tort system were getting 25,000. The mid value were23
getting 120,000 on average, and the high value were getting24
475. When you view it that way its a stable world, so I25
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Mullin - Cross/Dorsey 41
to incorporate the claims that got resolved in these big1
inventory deals to know that the counts are actually stable.2
And if you dont do that step your analysis could be3
unreliable. So thats why it was important for me to go and4
include those counts in what I was doing.5
Q Well, isnt it more reliable to rely on what the actual6
history was, rather than rewriting the group history into an7
individual evaluation history?8
A Again, this depends on what youre trying to accomplish.9
If what youre trying to say is -- if the purpose of the10
exercise is to take into account the merits of the claims, the11
individually evaluated claims are the ones where the merits of12
an individual claim was taken into account in the history, but13
in the group settlements it wasnt. They never took any14
discovery. You cant map those claims. You dont know what15
they look like. You cant map them into what the pendings look16
like on the PIQs because you dont have any data because none17
was taken in discovery to know what are the claim18
characteristics.19
So, if the -- I think I said this yesterday, but if20
the exercise you wanted to do was to say were going to settle21
all claims sight unseen and let the plaintiffs attorneys pick22
what everybody gets, the group settlements are a good proxy for23
that process. If what you want to do is say -- you want to24
evaluate claims based on their merits, we have the PIQ data for25
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Mullin - Cross/Dorsey 43
the pending and future claims based on their merits, so Im1
using the historical claims that were evaluated the same way.2
So, Im not taking anything out. Im saying Im evaluating3
these pending claims based on their merits. To do that you4
have to look at the historical claims that were evaluated based5
on their merits. If you want to do a different exercise and6
not evaluate them on their merits you can produce a higher7
number.8
Q And dont you want to -- isnt the purpose here to9
determine what the debtors would have paid if they had remained10
in the tort system?11
A I think now we go back to -- I think the parties have12
different theories on that as to what is supposed to be13
estimated. I have tried to lay out different sets of14
estimates. Its not my job to decide which one is right.15
Q Okay. So if the Judge determines that the purpose of this16
exercise is to determine what the debtors would have paid if17
they had remained in the tort system, your analysis of the18
group settlements and the elimination of all the other19
transactional costs and the several share costs would be20
completely unhelpful to the Court, correct?21
A No. I think the analysis that Ive done --22
THE COURT: Isnt that my determination to make,23
whether something is helpful to me? How can the witness24
determine whats helpful to me?25
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Mullin - Cross/Dorsey 45
defense costs are going to be included or not is a legal1
determination Im going to have to make.2
MR. DORSEY: Absolutely.3
THE COURT: Its a fact from what this witness has4
testified to, and what everybody has been saying, that the5
settlements did, in fact, include some portion of fees that the6
debtor otherwise would have paid to lawyers. I mean, this7
witnesss own testimony is that the settlements were higher in8
the group settlements than they were on individual review, and9
hes explained from his point of view why that is. Now, people10
can disagree or not -- or agree with that concept, but its a11
legal determination whether Im going to include those12
transaction costs, and if so, how, and to what extent. So I13
just dont see how you can ask him whats helpful to me, and I14
dont see how you can ask him what would have happened had the15
debtor still been in the tort system. I mean, people can try16
to predict that, but how do we know what would happen?17
MR. DORSEY: Well --18
THE COURT: Are you going to give me some evidence19
that indicates that these three law firms that allegedly20
settled their entire inventory still have massive numbers of21
claims so that there may have even been a possibility of group22
settlements? I mean, so far nobody has even provided me with23
facts. Facts would be helpful.24
MR. DORSEY: I understand, Your Honor. Let me ask25
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Mullin - Cross/Dorsey 46
the witness --1
Q You recall I took your deposition in the Leslie Control2
case, correct?3
A I believe thats right. That was a while ago.4
Q It was a while ago. And I asked you in that case, and5
Ill put up on the ELMO, if we can bring that up, this6
deposition transcript, do you have another copy?7
MR. EVERT: Your Honor, Id offer an objection. Is8
this for impeachment of an answer thats been given?9
MR. DORSEY: Yes.10
MR. EVERT: Oh. Im sorry. Okay.11
MR. DORSEY: I believe the witness testified that12
couldnt determine what the cost would be in the tort system.13
May I approach, Your Honor?14
THE COURT: Yes. I dont think that was the15
witnesss testimony, however. Do you want to go back and16
refine that portion of the testimony, please?17
Q Well, let me ask you that, Dr. Mullin. Can you predict18
what the debtors liabilities would have been if they had19
remained in the tort system?20
A I said I could do scenario analysis. This is something I21
do frequently, whether its in financial reporting, insurance22
coverage, different frameworks, you do scenario analysis under23
different assumptions about how the tort system would evolve,24
and under those alternative assumptions you could look but you25
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Mullin - Cross/Dorsey 50
implicit defense, and all those other things? Have you done1
that analysis?2
A Under what assumptions?3
Q Under the assumption that they remained in the tort4
system.5
A Thats -- I mean -- let me rephrase. I mean, thats6
really enough for me to give you an answer? Remaining in the7
tort system, okay. What are we assuming the tort system looks8
like in 2020 when you ask that question?9
Q Well, do you have any understanding of what the tort10
system is going to look like in 2020, Doctor?11
A Well, I think thats one of the problems with asking a12
question where youre talking about how are future transaction13
costs going to affect what they pay in the tort system.14
Procedural rules, changes in the tort system affect those15
numbers. They dont affect liability, but they do affect those16
other factors.17
Q But you didnt take into account any changes in the tort18
system in producing your estimation in this case, did you?19
A When youre looking at liability theres many fewer things20
that could affect that as opposed to when youre looking at21
transaction costs. Transaction costs are driven by the costs22
of the litigation, so procedural changes matter. Theres a23
whole set of things that come into play. Who names you? A24
nuisance -- more nuisance claims naming the debtors drive up25
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Mullin - Cross/Dorsey 53
it or not.1
Q If youd turn to Page 228 of that deposition, sir?2
THE COURT: This is the deposition of November 15th?3
MR. DORSEY: That is correct, Your Honor.4
THE COURT: And Page 228?5
MR. DORSEY: 228.6
THE COURT: All right. Thank you.7
MR. DORSEY: Beginning at Line 21.8
Q You were asked the question, In terms of the forecast9
that you prepared in this case is it true to say that you, in10
your expert opinion, you are not making any effort to predict11
future changes in the tort law? Answer: I did not make an12
effort to do that. Is that what you said in your deposition,13
sir?14
A Yes. I think that what I just said a moment ago, too.15
But, yes. I didnt try to forecast the future changes in the16
tort system.17
Q Okay. Well, you gave an answer that talked about --18
MR. EVERT: Excuse me. Id ask that you read the19
rest of the answer, please, which continues on Page 229?20
COURT CLERK: Mr. Evert, if you could just turn on21
the mic.22
MR. EVERT: I'm sorry.23
MR. JACKSON: Its on. Hes just not speaking24
towards it.25
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Mullin - Cross/Dorsey 56
the several share thats not what the settlement data that1
allows me to estimate these numbers comes from. And so I chose2
to be conservative and still only take a one and a half3
percentage point offset instead of, you know, a three4
percentage point offset, or a 2.9 percentage point offset. I5
think when youre looking at a total tort spend number for6
which the data is the direct data at which I can compute these,7
its appropriate to take the full offset. So, this was done in8
the context of the report where I did just that $125 million9
number. I chose to be conservative in that regard because10
theres not a perfect alignment of the data.11
Q Can you show me where in your report you mentioned the 1.912
percent reduction on the impact of aging on the pay rate?13
A I mean, the report doesnt mention the one percent or the14
1.9. It says 1.5 percent reduction to account for the aging of15
the population. That 1.5 percent, in my working papers that I16
turned over, shows the one percent and the 1.9 as all laid out17
as to the analysis that underlines whats just a summary18
statement here.19
Q So, it was in your working papers, not in your report? Is20
that what youre saying?21
A The foundation for why I made the adjustment is in my22
working papers. Thats correct.23
Q So someone would have to go through your working papers24
and figure out what you were trying to say when you did that25
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Mullin - Cross/Dorsey 57
reduction rather than just explicitly stating it in your1
report, is that correct?2
A You would -- my working papers were very clear. I mean,3
every number in my report showed exactly the computer code and4
everything that produced it. But, yes, if youve never looked5
at my working papers theres many numbers in my report that you6
wouldnt be certain exactly how I calculated them. I didnt7
try to make the math of every number explicit in the text. It8
was long enough as it is. I would have had a 400 page report9
if I had done that.10
Q So, adding 1.9 percent would have just made it a much more11
longer report? Is that what youre telling me?12
A No. What Im telling you is I chose in general not to put13
all the math behind every number. If that was the only that I14
had done it to, no. You know, I dont know which one youre15
going to pick. As I said, all the other numbers in the report,16
I dont tell you in the table below the exact math for every17
single one of those numbers, either. You have to go to the18
working papers which show the computer code that produces every19
single one of those numbers. And my working papers were very20
well documented and showed exactly how I produced every number21
in my report.22
MR. DORSEY: Okay. Nothing further, Your Honor.23
THE COURT: Redirect, Mr. Evert?24
MR. EVERT: Your Honor, extremely briefly.25
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Anderson - Direct/Houff 60
COURT CLERK: Please be seated.1
(Pause)2
THE COURT: It doesnt move.3
DIRECT EXAMINATION4
BY MR. HOUFF:5
Q Dr. Anderson, good morning.6
A Good morning, Mr. Houff.7
Q Sir, I think you have with you, and I want to identify8
before we get started -- well, first, let me just ask you to9
introduce yourself to the Court, stating your name, your10
professional address, and your profession, please?11
A Yes, sir. Kim E. Anderson. I am with GZA12
GeoEnvironmental, Inc. The address of our office is 2090013
Swenson Drive, Suite 150, Waukesha, Wisconsin.14
Q Okay. And your profession, sir?15
A I am a toxicologist, human toxicologist, more precisely.16
Q And as I was saying, we have three documents that I wanted17
to identify, and which I think you already have up there with18
you. First is whats been identified as Debtors Exhibit 127,19
which is your curriculum vitae. Do you have that in front of20
you, sir?21
A Yes, sir. I do.22
Q Okay. Is this a fair and accurate and up to date copy of23
your curriculum vitae?24
A Yes, sir. Its dated December of this year.25
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Anderson - Direct/Houff 62
MR. FINCH: Might I just approach the podium, just so1
we have it -- no objection to the C.V. for substantive2
purposes. No objection to the slides and the report as long as3
its for demonstrative purposes only.4
MR. HOUFF: And that is accurate, Your Honor, and5
its Debtors Exhibit 127, which is the C.V.6
THE COURT: The futures?7
MR. DORSEY: No objection, Your Honor.8
THE COURT: All right. Exhibit 127 is admitted, and9
27 (sic) and 28 (sic) for demonstrative purposes only.10
MR. HOUFF: Thank you, Your Honor.11
Q Doctor, can we agree that all of your opinions today will12
be expressed to a reasonable degree of scientific certainty13
used in your profession?14
A Yes, sir.15
Q And in support of your statement that youre a16
toxicologist, have you prepared some slides to talk about those17
issues?18
A Yes, sir. I have.19
Q Okay. You are a toxicologist? What does a toxicologist20
do?21
A Specifically, a human toxicologist studies disease and22
chemical, physical and biological agents which may have a role23
in the disease. Its actually called the science of poisons.24
Q Okay. And what types of materials do you use and25
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Anderson - Direct/Houff 63
regularly refer and analyze in your work as a human1
toxicologist?2
A Mr. Houff, I use a variety of means and measures. For3
example, I would use studies that are conducted by others that4
include exposure studies. I would also include studies that5
are prepared and published by others which we might term6
epidemiological studies. Then, at times I will actually have7
the opportunity to measure certain exposures and to evaluate8
facts related to those exposures.9
Q And youre also trained in industrial hygiene, are you10
not, sir?11
A Yes, sir.12
Q And what is an industrial hygienist, and what types of13
work have you done in industrial hygiene?14
A Ill divide the questions. First, my training includes a15
Masters of Science degree in industrial hygiene, with16
industrial hygiene being defined as the art and science related17
to the recognition, evaluation and control of materials and18
substances to which a worker may be exposed. During my 40 year19
career I have been engaged and employed as an industrial20
hygienist with the Johnson Space Center, with the United States21
Department of Labor, the Occupational Safety and Health22
Administration, with A.O. Smith Corporation, and in the latter23
22 years of my career in consulting.24
Q And you are not a medical doctor, correct, sir?25
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Anderson - Direct/Houff 67
that time.1
Q And then you did some work with the Oklahoma Environmental2
Protection Agency. Can you tell the Court briefly about that?3
A Yes, sir. While I was completing my baccalaureate degree4
and before I started my masters program I accepted a position5
at -- at that time what was termed the Oklahoma Environmental6
Protections Agency as an environmental engineer in Pontotoc7
County. Thats the department where I essentially established8
the water quality laboratory for that county through the state9
of Oklahoma.10
MR. HOUFF: Your Honor, at this time I would offer11
Dr. Anderson as an expert toxicologist, human toxicologist,12
industrial hygienist and risk assessor.13
MR. FINCH: No voir dire, Your Honor.14
UNIDENTIFIED ATTORNEY: No voir dire, Your Honor.15
THE COURT: All right. He is so accepted.16
MR. HOUFF: Thank you, Your Honor.17
Q Dr. Anderson, Dr. Feingold testified earlier in the week18
regarding the history of science and asbestos, and gave us some19
of the epidemiology, and you have prepared some slides here,20
have you not, to explain what you call the science of asbestos?21
A Yes, sir. I have.22
Q Okay. Would you please use the slides and explain to the23
Court your opinions and what the materials shown on Slides 9 to24
12 demonstrate about the science of asbestos as they relate to25
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Anderson - Direct/Houff 75
A Yes, sir. From my research, and again, doing this kind of1
stuff for 40 years, there have been four key studies that have2
looked at relative risk, or potency, or both, comparing3
amphiboles, and in some cases specifically -- some specific4
commercially available amphiboles to chrysotile. The first5
study was the 2000 Hodgson & Darnton study that essentially6
compared the potencies from chrysotile to amosite to7
crocidolite, and they found increased risk of chrysotile at8
one, amosite at 100, and crocidolite at 500.9
Recently some have tried to say that when Hodgson &10
Darnton looked at the updated Loomis cohort, which was one of11
22 cohorts included in this study that Hodgson stated in a12
brief publication that that would change the potency factors by13
a factor of ten. In my direct communications via e-mail with14
Mr. Hodgson, he clarified that meaning that it should only15
change the potencies in that Loomis study only, not the16
entirety of every one of the 22 studies used to calculated17
these potency factors.18
Q And that e-mail exchange was included as an exhibit in19
your deposition when Mr. Finch took it, correct?20
A Yes, sir.21
Q Okay.22
A The second study --23
Q Did I go too far?24
A The second study --25
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Anderson - Direct/Houff 76
Q Right.1
A The second study essentially has been debated very2
stringently by a committee that was empaneled by the U.S. EPA3
to study to study the work of Berman and Crump. I dont4
present this as being the primary basis of my opinion, but5
nonetheless it is utilized to illustrate the different risk and6
potencies that a committee empaneled by the U.S. EPA at one7
time calculated. In this study Berman and Crump, again, using8
chrysotile at a factor of one, found for amphiboles in9
combination that the increased relative risk would be at 80010
for amphiboles. The third study was by Peto and Hodgson, where11
they looked and examined the potencies and relative risk12
predicated upon a comparison of chrysotile and amphiboles. And13
essentially -- I think if we click it one more time, Mr. Houff,14
it may -- go more --15
Q There it is.16
A The authors state we gave no weight to chrysotile. In17
that comparison they did find the relative risk at a hundred18
percent related to exposures to amphiboles and mesothelioma.19
The last of the four studies that I used is the 2006 Yarborough20
study, again, where Yarborough found no association and gave no21
weight to chrysotile and gave a hundred percent weightiness to22
amphiboles in respect to the increased risk. The next slide23
will essentially show the comparison of all four of these24
different studies. And again, Im not suggesting that the 200325
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Anderson - Direct/Houff 77
Berman and Crump study has been validated. Nonetheless it does1
show in comparative fashion what, during their review of the2
literature they found with the other three studies being, in my3
opinion, more conclusive.4
Q Dr. Anderson, have you also -- turning to the subject of5
dose response and thresholds for the induction of mesothelioma,6
do you have an opinion concerning whether the studies relied7
upon by plaintiffs experts reasonably support their contention8
that there is no safe level of exposure to asbestos in the9
induction of mesothelioma?10
A Well, I would relate this to two steps. I didnt find11
reference to any of the seven studies of actual drywall workers12
or workers that include drywall work practices in any of the13
reports or any of the deposition transcripts. Rather, I have14
found at least seven studies of which large cohorts of drywall15
workers or workers engaged in some form of drywall work16
practices, and these seven studies in large cohorts with some17
limitations related to the use of death certificates where we18
have found either no excess cases, no statistically valid case19
numbers, or in some of the studies no cases at all of20
mesothelioma, again, in these very large cohort of workers.21
Q What does Slide 23 show, sir?22
A It has been interesting over the years to see the reliance23
of others on defining the importance of the fact that the24
Consumer Product Safety Commission in 1977 and 1978 banned the25
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Anderson - Direct/Houff 79
the fact that theres no safe threshold. The no safe threshold1
is an anomaly thats predicated upon, again, mathematics. This2
slide attempts to show the --3
Q This slide being 25, sir?4
A 25. Yes, sir.5
Q Thank you.6
A This slide attempts to show what is known and what isnt7
known to derive the no safe threshold statement thats often8
made. On the right half of this slide we see the plotting of a9
specific study with a specific range of doses. On that right10
side of the slide a line of best fit then is mathematically11
calculated to show what the predicted relationship or observed12
relationship may be. The left hand side of the slide is13
completely hypothesized. Essentially to show linearity, the14
top dotted line of the possible responses is the downward15
extrapolation to provide the intersect of the zero response16
with the zero dose, completely hypothesized. We have no basis17
for that. But with that zero response at zero dose we have a18
no safe threshold. Ive also plotted two other potential19
hypothesized responses that one might find. Essentially we20
could use any response if we were not convinced that we wanted21
to go to the zero dose at zero response.22
Q So, the bottom line here, Dr. Anderson, as I understand23
your testimony, and please correct me if Im wrong, is that the24
only thing that we actually know about threshold appears from25
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Anderson - Direct/Houff 81
three different data sets. First, from the time I was first1
retained by Bondex in early 2004 until their bankruptcy I had2
actually been retained on 130 cases. Some of those cases went3
away because of bankruptcy, and have been included elsewhere.4
Some of the cases were settled before I reviewed the data. And5
some of the cases were for disease or disease processes other6
than mesothelioma. So resulting, I have 101 cases for which I7
have drafted reports.8
The second data set I used was a data set of 9079
cases that were resolved prior to bankruptcy that was provided10
to me by Bates White. Included in those 907 were actually 1511
of my cases of which I had drafted a report that are included12
in 101 cases. And then, thirdly, I was provided information13
related to 2,753 PIQs of which -- 2,765 PIQs, of which 1,51314
had received quality control evaluation by Bates White or15
Logan, or both. I selected ten percent of those, or 151.16
When I looked specifically, then, at each of those17
data sets, of the 101 cases for which I drafted reports I could18
stratify these 101 cases into five categories. DIY-ers,19
drywallers, bystanders, laundry exposure, and a combination of20
the above.21
Q DIY-ers means do-it-yourself-er?22
A Yes, sir.23
Q Okay. Thank you.24
A Weve kind of developed our own vernacular for this stuff,25
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Anderson - Direct/Houff 85
Q Please state those conclusions as they appear or elaborate1
on them as they appear on Slides 30 and 31.2
A As we discussed earlier, I would first conclude that any3
difference or differences in the toxicity including any dose4
response relationship and potency in asbestos fiber types are5
profound. Secondly, I have found, and I would like anyone to6
show me any epidemiological study of drywall workers that found7
excess cases of mesothelioma in drywall workers. Drywall8
workers, in general -- if we look at the literature in 19889
Carey published a study based on census findings that between10
150 and 160,000 drywall workers that the average employment as11
a drywaller was 5.7 years. If we apply the 2.1 fiber per cc12
for premixed joint compound and 4.5 fiber per cc for dry mix13
time-weighted averages a lifetime drywall worker then would14
have a dose that exceeded five fiber years per cc.15
Q Can we take just one second and talk about what a16
time-weighted average is, as opposed to some of the other17
things that weve seen?18
A A time-weighted average provides in this instance the19
weighted values for all work practices for which a drywall20
worker would be engaged using joint compound. For dry powder21
it would include mixing, applying, sanding and cleanup. For22
premix it would include applying, sanding and cleanup. From23
those work practices, Verma and Middleton evaluated and24
established percentages of the day that would be devoted to25
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Anderson - Direct/Houff 87
the intercept of zero dose and zero effect is a no threshold1
found for asbestos. And lastly, my review of information and2
facts of 1,159 Bondex cases, including 151 PIQs, revealed that3
in approximately seven percent of the cases a material asbestos4
dose, and that should be chrysotile asbestos dose, resulting5
from the use, or being around the use of Bondex asbestos6
containing materials including joint compound may have7
occurred.8
Q Doctor, thank you very much.9
MR. HOUFF: I have no further questions at this time,10
Your Honor.11
THE COURT: One second, please.12
MR. FINCH: Your Honor, maybe if we have a moment to13
just switch. We dont need a recess, just --14
THE WITNESS: I think shes got some questions.15
THE COURT: Doctor, just so I understand your point,16
Number 5 as it relates to chrysotile and amphibole asbestos,17
could you clarify for me please how youre relating your18
finding, Number 5, to what you observed in the 1,159 cases?19
THE WITNESS: Yes, maam. Number 5 is, actually, a20
more universal statement which with great specificity that as I21
attempted to show earlier in order to have linearity to this22
zero intercept regulatory agencies and others have shown the no23
threshold. Regardless of the no threshold, that does not mean24
that we have causation. That means, at best, we could show an25
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Anderson - Direct/Houff 89
be reflected in the epidemiological studies relating to drywall1
workers?2
A Yes, sir, it would.3
Q Okay. And once again, your understanding of the4
literature relating to epidemiology and drywall workers shows5
what with respect to the development of mesothelioma?6
A We either have no excess cases, we have no statistical7
establishment of excess cases, or in some studies we have no8
cases at all of mesothelioma in large cohorts of drywall9
workers or other workers engaged in drywall work practices.10
MR. HOUFF: Thank you. I have nothing further, Your11
Honor.12
THE COURT: Did those studies include any -- well, I13
dont know how to ask that question -- any workers who would be14
using Bondex products? I thought that you had indicated15
earlier that the studies were from other parts of the world,16
not necessarily here.17
THE WITNESS: No. If I led you to that conclusion,18
Im sorry. The studies were of United States workers --19
THE COURT: All right.20
THE WITNESS: -- but theres no identity of any21
materials that they allegedly used, much less Bondex.22
THE COURT: All right. Thank you.23
MR. HOUFF: Ill pass the witness at this time, Your24
Honor.25
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Anderson - Cross/Finch 94
Q And thats not an epidemiology study, thats just a1
description of what dose reconstruction is, correct?2
A Its a little broader based than that, but yes, sir. It3
does include dose reconstruction.4
Q Okay. It was not an epidemiology study?5
A Thats correct.6
Q And well get to that paper maybe in a little while. The7
second paper you wrote was a review paper with no original8
research in it, correct?9
A Thats correct.10
Q What you did is you reviewed the work of other scientists11
who had published things in the Peer Reviewed literature and12
you wrote a paper about it. Thats what a review paper is,13
right?14
A Thats correct.15
Q You used to be at OSHA, correct?16
A I was.17
Q While you were -- you know that OSHA has regulations18
concerning asbestos exposure, correct?19
A I --20
Q Not why -- you were aware that it has regulations. My21
question is just does it -- it does have regulations relating22
to asbestos exposure, correct?23
A It does.24
Q And in the late 1980s and early 1990s, OSHA had hearings25
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Anderson - Cross/Finch 97
Q Inc. Its a 600 employee company, correct?1
A I think we have a scooch over, but around 600 employees,2
yes, sir.3
Q And youve been paid $408 per hour for testimony in4
connection with the Bondex case, correct?5
A I havent been paid yet. I hope to be paid.6
(Laughter)7
Q Okay. Youre company bills out at $408 per hour for8
testimony, correct?9
A In this case, yes, sir.10
Q In this case. And its $240 per hour to look at documents11
and to do analysis and write the report that you generated,12
correct?13
A Yes, sir.14
Q And you were paid -- as of the time of your deposition,15
you had been paid about two hundred -- or your company had been16
paid about $200,000 by Bondex in this case, correct?17
A I dont know that weve been paid everything, but I18
believe we billed around 200,000.19
Q Okay. This isnt obviously the first time youve worked20
for Bondex. You have worked for Bondex in over a hundred cases21
in asbestos litigation, correct?22
A Yes, sir.23
Q There is a company called Georgia Pacific that once upon a24
time made asbestos containing joint compound, correct?25
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Anderson - Cross/Finch 99
Q And youve worked for them in over 50 cases, correct?1
A Yes, sir.2
Q Youve worked for Kelly-Moore, correct?3
A A couple times, yes, sir.4
Q Kelly-Moore is a company that has had asbestos, chrysotile5
asbestos incorporated into either joint compound or paint6
texture products, correct?7
A I dont recall the paint texture, but I do recall joint8
compound.9
Q Okay. They made joint compound with asbestos in it just10
like Bondex and Georgia Pacific and Kaiser Gypsum, right?11
A Yes, sir.12
Q And youve worked for them too, right?13
A Yes, sir.14
Q Youve worked for THAN, T-h-a-n, correct?15
A Thats correct.16
Q THAN is a company that supplies asbestos fiber to other17
companies, correct?18
A Well, my understanding was THAN did a lot of things. That19
was one of their business lines.20
Q Okay. And do you have the understanding that THAN was a21
supplier of fiber to Bondex?22
A I dont know that I know that.23
Q Okay. And we might come back to THAN in a minute. Youve24
also worked for various other defendants that I havent listed25
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Anderson - Cross/Finch 103
Q Okay. I think were on the same page. And you -- I think1
I -- I think I understood your testimony on direct -- and Im2
just going to switch just quickly here. You also talked about3
two other categories. You looked at the 107 summaries and you4
looked at some personal injury questionnaires, correct?5
A Yes, sir.6
Q And that slide up in front of you shows roughly the number7
of cases in each bucket that you looked at, right?8
A Yes, sir.9
Q Okay. And thats a slide I believe Mr. Houff showed --10
thats the slide you helped him put together on direct,11
correct?12
A Yes, sir.13
Q And what you found was essentially all the cases had14
amphibole exposure in the 101 cases for which you drafted15
reports when Bondex prior to going into --16
THE COURT: I cant hear you, Mr. Finch.17
MR. FINCH: Sure.18
Q All -- essentially of the 101 cases, all of them had19
amphibole exposures identified, right?20
A Yes, sir.21
Q Okay. And then you looked at the 907 cases and you found22
no meaningful differences as compared to the 101 cases for23
which you had drafted reports for Bondex before it went into24
bankruptcy, right?25
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Anderson - Cross/Finch 104
A Thats correct.1
Q Okay. And then you looked at the 151 personal injury2
questionnaires, and again I found no meaningful differences as3
compared to either the 101 pre-bankruptcy cases you worked on4
or the 907 reports that you -- or cases that were resolved5
prior to bankruptcy, correct?6
A Thats correct.7
Q Okay. This is a slide Dr. Feingold presented. There he8
found that there were -- ten percent of the cohort he looked at9
had direct joint compound exposure alone. Thats different10
than what you found, correct?11
A He looked at -- Im trying to interpret this -- 229 cases12
where Ive looked at over 1000 and of the 229 cases that youre13
saying Dr. Feingold looked at he found 25 or 10.92 percent as14
compared to approximately seven percent that I found.15
Q No. But the difference is you said that for the 101 cases16
and the 907 cases and the 151 that virtually all of them had17
amphibole exposure, right?18
A Yes, sir.19
Q Dr. Feingolds slide says that ten percent of the ones he20
looked at had only joint compound exposure.21
THE COURT: Pardon me. I dont think thats what22
Dr. Feingolds testimony was, Mr. Finch. Maybe we better go23
back and look. I thought what he said was that ten percent of24
the cases showed that they -- from the information he had there25
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Anderson - Cross/Finch 108
tremolite in it or not, correct?1
A Yes, sir.2
Q And there is also -- its generally recognized by3
scientists around the world that there is a causal relationship4
between chrysotile asbestos and pleural plaques, right?5
A Yes, sir.6
Q Thats a disease that affects the pleura of the lung,7
which is the lining around the lung, right?8
A Yes, sir.9
Q And the pleura of the lung is the same place where10
mesothelioma occurs, correct?11
A In and around, yes, sir.12
Q And you would agree that the scientists around the world13
have agreed that there is a causal relationship between14
chrysotile asbestos and pleural plaques regardless of whether15
or not the chrysotile has tremolite in it, correct?16
A I believe so.17
Q You would agree that there is a causal relationship18
between chrysotile asbestos and lung cancer, correct?19
A Some types of lung cancer, yes, sir.20
Q And that scientists around the world are in general21
agreement that chrysotile asbestos -- there is causal22
relationship between chrysotile asbestos and various types of23
lung cancer, correct?24
A I believe so.25
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Anderson - Cross/Finch 112
A I believe Ive seen it before, yes, sir.1
Q Its a, article published by Dr. Lemen. Chrysotile2
asbestos is a cause of mesothelioma application of the Hill3
causation model, see that?4
A His commentary on such, yes, sir.5
Q And he reviewed the nine Bradford Hill criteria and isnt6
it correct that Dr. Lemen concluded chrysotile asbestos meets7
Hills nine proposed criteria establishing chrysotile asbestos8
as a cause of mesothelioma?9
A Can you direct me to the page?10
Q In the abstract, the last sentence before key words, see11
that?12
A Yes, sir. Thats what it says.13
Q You used to be at OSHA, correct?14
A Yes, sir.15
Q OSHA has concluded, has examined the question and16
concluded that there is a causal relationship between17
chrysotile and mesothelioma, correct?18
A Through their risk assessment, yes, sir.19
Q The Environmental Protection Agency has concluded that20
theres a causal relationship between chrysotile and21
mesothelioma, correct?22
A Correct.23
Q The ATSDR, which is the Agency for Toxic Substances and24
Disease Registry, has concluded theres a causal relationship25
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Anderson - Cross/Finch 116
with the Pira paper, correct?1
A Yes, sir.2
Q The Pira paper was a paper published in 2009, right?3
A I dont see the date, but I think that would be the4
approximate time.5
Q Okay. And youre familiar with the Pira paper because you6
have reviewed it in the past, right?7
A Yes, sir. I think its --8
Q And we talked about it at your deposition, right?9
A We did or didnt?10
Q We did.11
A Yes, sir.12
Q And the Pira paper is again a group of -- its a -- this13
is actually a epidemiology study that -- looking at the same14
chrysotile from Balangero Italy, correct?15
A Yes, sir.16
Q And there they found -- we found a significant excess17
mortality from pleural cancer only, four deaths, SMR 4.67, and18
pleural and peritoneal cancers combined, five deaths, SMR 3.16.19
Thats what they found, right?20
A Thats correct.21
Q And pleural cancer is mesothelioma, correct?22
A I assume thats what they meant.23
Q Okay. And the chrysotile that comes from Balangero,24
Italy, there isnt any tremolite in it, right.25
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Anderson - Cross/Finch 121
summary section -- I have the article if you would like to have1
the whole copy -- but he says the case that chrysotile is a2
potent causative factor in producing mesothelioma is a strong3
one. It is shown to be so in a comparison of more than 404
studies of different fiber exposure circumstances, he writes5
that, right?6
A He wrote that. And the 40 studies, again, are ones we7
talked about where we dont have sole exposure to chrysotile.8
Q And then he goes on to say, all available data suggests9
that it -- and hes talking about chrysotile -- youd agree10
with me that hes -- that the it means chrysotile?11
A I believe so.12
Q Okay. It dominates the risk in those circumstances where13
it is the principle fiber used. The risk of chrysotile in14
producing mesothelioma is similar to that of amosite on a per15
fiber exposure basis. Thats what he wrote in 2001, right?16
A Yes, sir.17
Q Okay. And youre aware that in 2008, the Environmental18
Protection Agency went out and convened a science advisory19
board to look at the potency factor analysis done by some20
people called Berman and Crump, correct?21
A I talked about that earlier, yes, sir.22
Q Okay. And you havent published anything in the Peer23
Review literature about the results of the fiber potency24
analyses done by the EPA, correct?25
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Anderson - Cross/Finch 123
prepare during my deposition if I recall.1
MR. FINCH: Okay. Im going to try this one more2
time and I know Mr. Evert has criticized my drawing ability, so3
Im going to try to do -- can you see this, Your Honor?4
THE COURT: Yes.5
Q Okay. So what Ive drawn here is a chart where the dose6
is on the X axis going out, right, Dr. Anderson?7
A Yes, sir.8
Q And the response, which is the incidence of disease that9
you see from a given dose is on the Y axis going up and down,10
vertical, right?11
A The vertical, primarily be some type of increased risk,12
not --13
Q Increased risk of getting a disease, thats what you have14
on your chart up there, right?15
A I just put risk, but --16
Q You put risk --17
A -- it implies vertically it moves from zero to some18
number.19
Q And this is where you have observed data on various20
cohorts. You mean you can -- this is where the -- for example21
up there you have observed and then you have hypothesized, do22
you see that on your chart?23
A Yes, sir.24
Q Okay. And then you talked about a linear, no threshold25
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Anderson - Cross/Finch 126
Q Okay. So there is -- but this is the shape of a1
supralinear dose response curve, correct? Its above, its2
higher risk than a linear no threshold curve, correct?3
A It could be a hypothesized supralinear response curve.4
Q Okay. In your report, Reference Number 114, I believe it5
is, you cite -- do you have your report with you?6
A I do.7
Q Let me just see if were on the same page here. You cite8
to Berman and Crump, update of potency factors for asbestos9
related lung cancer and mesothelioma in something called10
critical reviews and toxicology, do you see that, sir?11
Reference 114?12
A Im trying to get there, Nate, if you can give me a second13
please. Yes, sir.14
MR. FINCH: Your Honor, may I approach the witness?15
THE COURT: Yes.16
Q Another copy of that one, thats Berman and Crump 2008.17
Thats the paper that you cited as one of your papers you were18
relying on for your opinions in this case, right, Dr. Anderson?19
A Yes, sir.20
THE COURT: Mr. Finch, let me just interrupt. Is21