Bondex Trial Transcript 1/9/13

7/29/2019 Bondex Trial Transcript 1/9/13

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UNITED STATES BANKRUPTCY COURT

DISTRICT OF DELAWARE

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

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

.

SPECIALTY PRODUCTS HOLDING .CORPORATION, et al., .

.

Debtors. .

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

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

CORP., BONDEX INTERNATIONAL,.

INC., .

.

Plaintiffs, .

.

v. . 5414 U.S. Steel Tower

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

EXHIBIT A TO COMPLAINT AND .

JOHN AND JANE DOES 1-1000, .

. 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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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


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


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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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 123 Verdict Sheet 241


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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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Mullin - Contd Cross/Sheppard 8

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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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


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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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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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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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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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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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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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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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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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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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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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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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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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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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


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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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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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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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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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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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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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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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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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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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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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

Documents

Bondex Trial Transcript 1/9/13