IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY

P E N N S Y L V A N I A
CIVIL ACTION - LAW

DONA RYAN, Executrix of the :

Estate of R. BRUCE RYAN, deceased, :
and DONA RYAN, in her own right, :
Plaintiff,:
:
vs. : No. 152 of 1986
:
GAF CORPORATION; KEENE BUILDING :
PRODUCTS CORPORATION; EAGLE-PICHER :
INDUSTRIES, INC.; OWENS-CORNING :
FIBERGLAS CORPORATION; OWENS- :
ILLINOIS, INC.; GARLOCK, INC.;:
PITTSBURGH CORNING CORP.; :
ARMSTRONG WORLD INDUSTRIES, INC.; :
COMBUSTION ENGINEERING, INC.; :
FIBREBOARD CORP.; CAREY-CANADA, :
INC.; ANCHOR PACKING CO.; STANDARD :
ASBESTOS MFG. & INSULATING CO.; :
FLEXITALLIC GASKET CO.; GENERAL :
ELECTRIC COMPANY, Wire and Cable :
Products Dept.; THE MARMON GROUP, :
INC., successor-in-interest to:
Cerro Wire & Cable Co., Div. of :
Cerro Marmon Co., and the :
Rockbestos Company, Inc., and :
MANVILLE TRUST FUND, :
Defendants. :

TRANSCRIPT of stenographic notes of

testimony taken and proceedings had in the above-entitled

matter, the testimony of GERRIT W. SCHEPERS, M.D., before

the HON. ROBERT C. REED, P.J., and a Jury, at the

Courthouse, Courtroom No. 1, Beaver, Pennsylvania, on

Monday, October 21, A.D., 1991, at 10:42 A.M.

APPEARANCES:
 ii

HENDERSON & GOLDBERG

Antonio E. Pyle, Esquire
Terrence M. O'Brien, Esquire
Appearing on behalf of the Plaintiff

BACHARACH & KLEIN

John A. Bacharach, Esquire
Appearing on behalf of Defendant Garlock

ARMSTRONG, TEASDALE, SCHLAFLY & DAVIS

By Raymond R. Fournie, Esquire
Appearing on behalf of Defendant Owens-Corning

RILEY & DeFALICE

Thomas J. Michael, Esquire
Richard McDonald, Esquire
Appearing on behalf of Owens-Corning

ROSENBERG & KIRSHNER

William R. Haushalter, Esquire
Appearing on behalf of Defendant Keene

FREEMAN & HAWKINS

Ollie M. Horton, Esquire
Lane Young, Esquire
Appearing on behalf of Ericsson Radio Systems, Inc.

SWENSEN, PERER & JOHNSON

Peter Skeel, Esquire
Appearing on behalf of Defendant GAF

DICKIE McCAMEY & CHILCOTE

Theodore O. Struk, Esquire
David S. Bloom, Esquire
Shawn P. George, Esquire
Appearing on behalf of the Marmon Group

REED SMITH SHAW & McCLAY

Kathy K. Condo, Esq.
Appearing on behalf of Defendant Owens-Illinois

WIMER SCOTI McCLOSKEY GRATER & SMITH

Michael W. Smith, Esquire
Appearing on behalf of Ericsson Radio Systems, Inc.

McCARTER & ENGLISH

Nathan A. Schachtman, Esq.
Appearing on behalf of Owens-Illinois
 2

P R O C E E D I N G S

THE COURT: Mr. Pyle.

MR. PYLE: Thank you, Your Honor.

At this time I call Dr. Gerrit Schepers to the

witness stand.

GERRIT W. H. SCHEPERS, M.D., the witness herein,

called as a witness on behalf of

the Plaintiff, having been first

duly sworn, testified as

follows:

DIRECT EXAMINATION

BY MR. PYLE:

QGood morning, Dr. Schepers.

AGood morning.

QI'll keep my voice up because I know you're a little hard of

hearing, is that right?

AYes, sir.

QAnd if you could keep yours, too. I know you have a tendency

to speak soft.

AI'll try.

QYou are a medical doctor?

AYes, sir.

QWhere and when did you receive your medical training?

A1938, Johannesburg, South Africa.

 3

QWhat was the institution that you attended? What was the

institution that you attended?

AIt was called the University of Witwatersrand in the City of

Johannesburg. Simply call it the University of

Johannesburg.

QAnd did you get your equivalent of an undergraduate and medical

school training there?

AYes, sir.

QAnd what did you do professionally after obtaining your medical

degree?

AI made -- I stayed with the university. I had already become

a teacher there and just continued with the university at

their request until I left for another university to become

Chairman of the Department there in the City of Victoria,

and then I joined the institution known as the

Pneumoconiosis Medical Bureau.

QCould you remind us, the Jury has heard some testimony. What

is pneumoconiosis?

APneumoconiosis is a medical term for all the different diseases

that can be caused by harmful types of dust.

QAnd what was the Pneumoconiosis Bureau in South Africa when you

joined it?

AIt was a Federal Bureau with responsibility for the diagnosis

and adjudication and working out compensation system for

 4

all persons with different types of pneumoconiosis that

they might develop from the industries in the country.

QPrior to joining the Pneumoconiosis Bureau, had you had any

training or experience in dust diseases?

AYes, sir.

From about 1935 onwards, I was a student

assistant to three of the foremost pathologists in the

field of pneumoconiology. Dr. Southerland Strachran, Dr.

Simpson and Dr. Mavro Goidgo.

QAnd where were those three physicians located?

AIn the City of Johannesburg. The Pneumoconiosis Bureau was

opposite the medical school.

QAnd why did you have involvement with those physicians? Why

did you have involvement starting in 1935 with those three

physicians?

AIt's an awful lot of pneumoconiosis in South Africa. The city,

the country is a highly industrialized country, producing

most of the world's minerals, and at that time probably half

of all of the asbestos.

For instance, at that time almost all the gold,

copper and so forth, and there were at that time well over

a million just miners alone in the different industries

every day working at these jobs.

QWhen you first joined the Pneumoconiosis Bureau, what year was
 5

that?

A'44.

QHow long did you stay with the Bureau?

ATen years.

QAnd during that period of time, what were your

responsibilities?

AI had to examine persons who believed that they might have the

disease, so between twenty and thirty a day. I had to

examine the x-rays to make a diagnosis based upon x-rays

of about three hundred of those a day.

If persons died, the law required that they had

to have an autopsy, so we saw an average of about three

autopsies per day.

I had to go out to various institutions to see

what the performances of various doctors that we supervised

were.

We had one hundred fifty doctors. I had to go

out to work with the industrial hygiene engineers to make

sure that dust levels were brought down whenever we

identified the problem.

I made field studies of the epidemiology of

different types of pneumoconiosis and in different types

of industries.

I was responsible for the statistics, the

 6

epidemiology recorded for cancer phenomena and other

special disease problems such as the heart problems and so

forth that are associated with the different

pneumoconioses.

QWhen was the first time you came to the United States?

A1949, in the capacity of a student.

QWhy did you come to the United States as a student?

AI was awarded a Fellowship known as the Commonwealth Fund

Fellowship which encouraged me to study whatever I wished

to study, wherever I wanted to in the United States for a

year.

QAnd where did you go?

ANew York University Institute of Industrial Medicine.

QWhat is industrial medicine?

AWell, it is the branch of medicine which specializes and focuses

on the aspects of health impairment and health conservation

as it relates to persons working in all varieties of

industries.

QAnd what was the nature of the program that you entered at the

New York University in industrial medicine?

AI was the first student, so I was the program so the purpose

was to become acquainted with all the industrial medical

problems of this country.

And I studied at the New York University itself,

 7

and my mentor, Dr. Lanza, sent me all over the United States

to study first-hand in the various industries with known

authorities such, for instance, as coming here to

Pittsburgh to study the Industrial Hygiene Foundation of

coal mines and steel mills and so forth.

QAnd what was Dr. Lanza in 1949?

ADr. Lanza was at that time the Dorian of industrial medicine.

He was then about seventy years old and had retired from

the Directorship of the Metropolitan Life Insurance

Company, which had been a major job of his, and had

previously been Surgeon General on retirement. He

determined to create this institute for the university, and

that is what he did.

QAnd how long was that course of study for you at the university?

A One year.

QWhat did you do professionally after that?

A Returned to my previous post in South Africa.

QAnd were the duties that you have already told us about the same

as you continued when you had returned?

AI was promoted to the Chief of Cardiopulmonary Disability

Evaluation.

QWhat do you mean by cardiopulmonary?

AThe cardio means the heart and pulmonary means the lung and in

the pneumoconiosis both of those organs are usually

 8

disturbed animal functions and become impaired, and my job

was to set up a system of measuring those impairments by

establishing lung functioning testing methodology, which

were new sciences, and cardio testing methodology, which

was a new science as applied to pneumoconiosis.

QUp through that time, that is when you returned to the

Pneumoconiosis Bureau, that would have been 1950?

AYes.

QWere you at all involved professionally with the aspects of

industrial hygiene and/or dust measurements?

AOh, yes.

QIn what fashion?

AIt was just an integrated part of the job. Once the disease

was recognized to exist, the immediate next steps was to

determine why it existed and that related directly to the

industrial circumstances that would lead to the disease in

the case of pneumoconiosis dust and how much dust and how

can one control it and how can one prevent the workers from

breathing the harmful dust so they don't become ill.

QYou continued then at the Pneumoconiosis Bureau until when?

AUntil 19 -- the end of 1953.

QWhat did you do after that?

AThen I was invited to come to the United States to become the

Director of Laboratory in Upstate New York known as Saranac

 9

Lake.

QThe Jury has already heard that name. Could you describe for

us at that time what was the Saranac Laboratory?

AIt was at that time the foremost research laboratory on

pneumoconiosis in the United States, and probably in the

northern hemisphere.

QAnd how long had it been in existence, Dr. Schepers?

AIt was started in 1887, so it had been there for over seventy

years.

QDid it start as a research institute for pneumoconiosis?

ANo, it started as an institution for the study of tuberculosis.

That was the major disease in America then. The research

on pneumoconiosis commenced about 1920.

QAnd why was there that shift in focus?

AA new Director was appointed, Dr. Leroy Gardner, and he quickly

perceived that very many of the people with tuberculosis

had a background of pneumoconiosis and that the two factors

were working together to make these people ill.

And so he initiated the studies on

pneumoconiosis to see if the disease tuberculosis could be

combatted by reducing pneumoconiosis.

QWas there a Director between Dr. Gardner and your Directorship?

ADid I what?

QWas there somebody -- who succeeded Dr. Gardner as Director of

 10

Saranac?

ADr. Gardner died in 1946. There was an interim Director, Dr.

Edward Packard, and a Mr. Manfred Bowditch, and then the

next medical doctor was Dr. Arthur Vorwald, who came in

1948.

QAnd how long did Dr. Vorwald serve as Director?

AHe remained until the end of 1953.

QAnd then you assumed the Directorship?

AYes, sir.

QAnd during your time at Saranac, how many years were you there?

AJust over three and a half years.

QDid anyone succeed you as Director of Saranac?

ANo, the laboratory was closed.

QDuring that time, did you continue any formal medical training?

AAs a doctor, you're required to do so. To keep your license,

you have to do a minimum X number of hours of study, and

I did that over the rest of my time, focusing primarily on

x-rays, radiology of the chest, pathology and internal

medicine.

QFollowing the closing of the Saranac Laboratory, what did you

next do professionally?

AI went to the Dupont Company and worked in Delaware for five

years, serving as their pathologist.

QAnd what did you do in the nature of investigation or work while

 11

at Dupont Company for five years?

AStudied the company's prospective new products to determine

safe levels and sort out the harmful ones from the good

ones, studied the company's employees when they became ill

to determine to what extent exposures to industrial hazards

had caused ill health and studied the customers of the

company when the customers complained that a product had

caused them harm.

QIf we could go back just a moment to your years at Saranac

Laboratory.

AYes, sir.

QDuring that time period, were you involved in directing or

conducting any animal experimentations?

AYes, all the time.

QWhat was the nature of that work?

AStudying different types of products. The laboratory had

eight exposure chambers.

QWhat do you mean by exposure chambers?

ARoughly speaking, an eight by eight by eight room in which

animals could be housed. A test substance could be fed

into the environment of the animals by means of machinery

and then the animals could be tested after a number of

months, or years, to see what that potential harmful

substance might be doing to them.

 12

QDid any of that work pertain to asbestos?

AYes.

QAnd what was the nature of the experimental work you conducted

while at Saranac pertaining to asbestos?

AThe main unit, the inhalation study with animals, was to

determine whether chrysotile asbestos in corroboration

with another substance known as beryllium would cause

cancer. That was the latest asbestos study.

There were human studies that I did for various

companies in which the objective was to find out what types

of cancers, how many cancers were occurring in their

industries and to try to quantitate and qualitate the

amounts and types of asbestos that were associated with the

development of cancer so more information could be

available to them to control dust exposure better.

QDuring your years at Saranac, did you ever sponsor or hold any

scientific or medical conferences?

AA major one was conducted in 1955. That was the International

Conference, but annually in the United States and at

Saranac Lake, we conducted what is called the school, the

two-day school, which about thirty doctors would come for

a four or five-day course on dust diseases. And we

regularly had about once a month, I had about five to ten

physicians from various industries to inform them as to

 13

what we were doing and to give them the latest information

available concerning pneumoconiosis, cancer and

tuberculosis.

QOther than the seminars or these two-day schools, how would you

as a physician working in 1954 when you first came to this

country, find out about diseases or dust diseases in

particular?

ASome of it was written down in books.

QWhere would one find these books?

AMedical journals, in universities. Some were in popular

medical journals -- they weren't every

doctor -- but the Journal of Medical Association. Some were

specialty journals that went to individual types of

specialists.

There were not many in those days. Doctors were

doctors, and they weren't specialized. Some were from

overseas, were an international publication.

The simple way if you were looking for a

particular topic was to go to a library and look up the book

called the Index Medicus.

QWhat was the Index Medicus?

AThat is a standard catalog of all the publications in medicine

that is assembled for the years of doctors and libraries

and medical schools, and it is quarterly updated and the

 14

topics are classified by subject matter alphabetically,

and sometimes by the author's names. It is easier to find

articles that way.

QHow long would the Index Medicus be available for physicians

or anyone else to use?

AWell, it existed when I went to medical school in 1930.

QNow, you mentioned international publications. Did the Index

Medicus only index medical journals published in this

country, in the United States?

ANo, the Index Medicus is international and in America, the

publications and in England or South Africa where I first

became acquainted with it were in the English language, the

titles of articles written in foreign tongues like Russian

or German or Yugoslav were translated into English.

QFollowing your five years with the Dupont Company, what did you

next do professionally?

AI joined the government of the United States, first in the

capacity of Director of Bureau of Laboratories for the City

of Johannesburg -- of Washington, Public Health

Department, and then the Veterans' Administration from

1970 on until I retired in 1989.

QWhat did you do for the Veterans' Administration from 1970 until

1989?

AInitially worked as a physician in hospitals, became Chief of

 15

Permanent Diseases and Chief of Pulmonary Diseases and

Chief of Medicine, and then I was promoted to the Central

Office to manage the Heart and Lung Disease Programs for

the whole VA nationwide.

QAnd did your involvement with the Veterans' Administration keep

up with your interest in the pneumoconiosis?

AYes.

QIn what fashion, Dr. Schepers?

AWe had a responsibility for -- I had responsibility for setting

standards of diagnosis for the doctors so they would

recognize compensable diseases since two people benefitted

from that. The veterans could get Workmen's Compensation

and the Administration could recover funds from those

sources to repay itself for the hospitalization of

hospital.

So there is a major responsibility to identify

industrial diseases.

The second was that we had employees who worked

in buildings or had jobs, 172,000 employees, who

encountered harmful substances in their work, such as

asbestos, and I had to set up a program to identify these

people and provide protection for them.

One by promoting the removal of all asbestos from

all buildings, which was accomplished, and two, to keep all

 16

these employees under surveillance so that if the disease

developed in them, they would know as soon as possible.

QOver the course of years that you worked in this country other

than the Saranac meetings you've told us about, did you

participate or attend any other medical conferences as it

relates to asbestos and disease?

AWhenever I could and wherever they occurred, yes.

QCould you tell us what some of those were?

AWell, in this country there was a major meeting on asbestos

diseases in 1964 which I helped to put together. It was

spearheaded by Dr. Irving Selikoff and Dr. Mancuso of the

city and Dr. Churg of New Jersey. There were

industrial-medical conferences all over the United States.

I had become the Chairman of the Committee on

Occupational Chest Diseases of the College of Chest

Physicians. We sponsored bi-annual or twice annually

meetings for our doctors, the members of the College, to

bring them up to date on the latest information.

I went to the international conferences in

Canada, Mexico, Europe, participating or just attending.

QHave you throughout the years that you were with the Veterans'

Administration and thereafter continued to read and keep

abreast of the medical literature as it relates to asbestos

and disease?
 17

AYes, very many thousands of papers. I'm afraid I haven't read

them all because there are too many, but very many.

QDuring your work both in South Africa and at Saranac and Dupont,

did you become familiar or not with the methodology and the

methods of taking air samples and doing dust counting?

AOh, yes. That was one of the functions of the Saranac

Laboratory to provide that type of service for the

industries in an expert manner, so since I was one of the

supervisors and had to write all the final reports, I had

to do it.

QHow old are you at the present time, Dr. Schepers?

AAbout seventy-eight.

MR. PYLE: I offer Dr. Schepers at

this time as an expert in industrial medicine, specifically

asbestos medicine disease.

THE COURT: Any objections?

MR. HAUSHALTER:No objection, Your Honor. We'd

like to retain the right to cross-examine the doctor with

relation to qualifications, interest and bias at a later

time.

BY MR. PYLE:

QDr. Schepers, have you ever been hired or consulted by any

company that made or sold asbestos-containing products?

AYes, in former years that occurred.

 18

QCan you tell us who some of those companies were?

AThe major company initially was the Johns-Manville

Corporation, because he was the largest in the country, and

then there were specialty companies that made special types

of products.

There were all the Canadian -- Quebec Mining

Association. That whole group I was the consultant for.

There was a group of people known as the Asbestos

Textile Institute. They made asbestos products that had

a textile quality -- cloth, rope, mattresses and so forth.

And Johns-Manville was a member of that and other

people were members of that association.

There were companies that made blends of

asbestos with other substances. For instance, insulation

materials that were a mixture of asbestos with other things

on top of it. Magnesium is one of the materials.

Later on, hydrous calcium silicate became the

major product, and I became a consultant for the

Owens-Illinois Corporation that had invented hydrous

calcium silicate mixed with asbestos as their special

product Kaylo.

QWere you ever retained or consulted by Owens-Corning Fiberglas

Company?

ANot for asbestos work as such, but for their fiberglass

 19

insulation and structural material.

The issue of asbestos was discussed with me, but

I declined to do it because of what they proposed to do,

considered to be impractical and harmful to society, so I

discouraged them.

QWell, we'll get back to that in a little bit.

Doctor, could you tell us from the time you, well

when you first learned about asbestos disease?

AOh, I learned about that in the 1930's. There was a big

conference in Johannesburg, the International Labor Office

Conference.

I grew up next to a large asbestos mine area,

Kuraman, where all the world's crocidolite, which is one

of the types of asbestos, that came from them. So I was

familiar with the concept of asbestos, and I was familiar

with the concept of diseases caused by asbestos from 1930

onward.

QCould you tell the Members of the Jury what information was

available as of 1930 that you would have looked at and

relied upon in determining whether or not asbestos caused

disease?

AWell, that confidence established itself in the newspaper.

Clippings said so when the conference was over. The

International Board finds asbestos causes disease.

 20

QWere there any medical articles such as would have been listed

in the Index Medicus prior to that conference?

AIn that year, a major paper came from England by the medical

inspector of factories, Dr. Merewether.

QWhere was Dr. Merewether from?

AHe was from England, and he was the Chief Inspector of the

factories, physician/lawyer, who had undertaken a major

study of the incidence of asbestos disease --

MR. McDONALD: Objection, Your Honor.

May we approach the bench at this point?

(Thereupon, the following sidebar conference

was had as follows, out of the hearing of the Jury.)

MR. McDONALD: Your Honor, this is Rick

McDonald on behalf of Owens-Corning. At this point, the

basis of the objection is there are motions pending before

the Court that were filed before the trial started that

dealt with whether or not the state of the art witness would

be able to get into the specific articles and sit there

and go through what the articles may or may not have shown

and because of the hearsay nature of it, it was raised in

Dr. Castleman's motion.

Specifically, it is the same issue that's coming

out now, so we'd like to preclude Dr. Schepers from going

through a litany of articles reciting what those

 21

conclusions are, because it is all hearsay and it is

inappropriate under the rules to proceed that way.

MR. PYLE: I think that he is not

quoting. He is conveying what information was received by

him and what was available, and that is certainly exactly

the type of information that was tossed about by several

Defense counsel in their openings as to the specific

conclusions, the specific findings of various medical

articles. And if anything, that certainly opens the door

for the presentation, without quotation, and he doesn't

intend to quote from -- I'm not going to show him any medical

articles, but it is merely a summary of what was done and

what was known.

MR. McDONALD: I'd like some limitation on

it, Your Honor.

If he can testify what may or may not have been

in the medical literature or generally what information

came when he starts to talk about 1935, the Merewether

article, and they concluded thus and thus, that's where the

problem lies, Your Honor.

MR. PYLE: I'm not sure what that

request for limitation is.

MR. McDONALD: As to not permit him to

testify about the title of any articles or the context of

 22

any of the articles, because it is not permitted under the

rules, as I understand it that we are under here in this

particular trial.

THE COURT: The offer is to prove what

knowledge there was at that time, as I understand it.

That's what the state of the art is, isn't it?

MR. PYLE: Yes.

THE COURT: How does he do that without

referring to something? Then isn't he subject to being

cross-examined? "Well, how do you know that, Doctor?"

MR. McDONALD: If the Defendant would

choose to do that, they could use the articles, Your Honor,

but under the rules, as I understand that we are trying the

case under --

THE COURT: These are articles everybody is

aware of he has testified to, I take it on a number of

occasions? You know what they are? You know where they

are? Nobody is contending they don't exist, right?

MR. McDONALD: That's right. It is just a

matter of evidence in this particular case, Your Honor.

THE COURT: The fact of the matter is, it

does not constitute hearsay. It is not being offered for

the purpose of proving the truth of them.

MR. SCHACHTMAN:Nathan Schachtman,

 23

Owens-Illinois.

I have a more limited anticipatory objection. I

have no particular problem with the Merewether report being

discussed on direct and cross, but I anticipate that there

might be discussions of unpublished works that were not

generally disseminated in the medical literature, which

our companies did not have notice, and I'd like to raise

that now just to avoid having to raise it later.

I think, for instance, there may be discussion

that reports that were done for particular companies are

not even here at this trial that were not circulated in the

medical literature, and I would anticipatorily object and

ask the Court to preclude a discussion of those unpublished

in the sense of the medical community works.

MR. PYLE: We can cross the bridge

when there is a specific question. I'm not sure that will

reach the issue that is raised right there, but we might.

THE COURT: Well, the objection is

overruled.

(Thereupon, the following was had in open

Court:)

BY MR. PYLE:

QI'm sorry, Dr. Schepers, I don't remember my last question, so

I suspect that you don't. Let me start over.

 24

You were referring to Dr. Merewether's study in

19 -- what year?

A1930.

QAnd generally, what was it he had looked at?

AHe had done an epidemiological study of the textile workers of

England to see what amount of disease and the type of

diseases they developed.

QWas his --

AAt the same time, he extended that study to look at many other

types of trades in which asbestos inhalation would be the

possibility, and he determined to find the criteria or

define the criteria that are needed for the diagnosis of

the disease and for the eradication, how to prevent it.

QWhen you mention that he went to look at where the uses of

asbestos or where asbestos inhalation could occur, what

sort of people did Dr. Merewether write about in 1930?

AThe majority were insulation workers because that was the

greatest use of asbestos at that time, but he also looked

at laggers, and he also looked at all varieties of jobs.

QWhat are laggers?

AA lagger is an insulator, a person who applies

asbestos-containing materials to the surfaces of steam

pipes and boilers and steam engines and so forth.

QWas this publication in 1930 the only asbestos-related article

 25

that Dr. Merewether ever published?

AOh, no. He continued writing reports, government reports

along those lines, and one of his most important was written

in 1947, in which he focused then not on asbestosis, but

on cancer. And he summarized the incidence of cancer of

the lung and pleura as it occurred in asbestos workers and

established -- by then they had an incident rate that

obtained an incident rate of 13.1 percent of all asbestosis

per subject developed cancer of the lung and pleura and

dramatized it by comparing the incidence in another group

of pneumoconiotic subjects, namely, persons with silicosis

and demonstrated to the world that asbestos had ten times

the ability of other substances to cause cancer of the lung

and pleura.

QWere you aware of Dr. Merewether's writings as of 1947? You

were still in South Africa, correct?

AYes, sir. I came to South Africa to the Bureau.

QWere any other people writing in the 1930's about asbestos and

disease other than Dr. Merewether?

AIncreasingly.

Dr. Lanza had written the first textbook,

medical textbook in the history of the world by 1938.

QWhat was the name of the textbook?

ASilicosis and Asbestosis.

 26

QWhere was that published?

AIt was called -- it was published in England, in Oxford, but

the printing firm is in England but it was distributed in

America.

QWe were importing even then.

AYes, sir.

QWere people other than Dr. Lanza and Merewether writing about

asbestos and disease?

AOh, no, there were many papers. Some were large, some were

small. Some focused, say on the radiological aspect of

asbestosis disease, how to diagnose it for the radiologist.

The first paper on that was written in 1918.

QWhere was that written?

AHere in America by Dr. Pancoast.

There were papers on pathology, the pathology

manifestations, the types of fetuses you can get.

Dr. Kenneth Lynch of Charleston, South Carolina

made a major study of one hundred cases of persons with

asbestosis in 19 -- I think it was 1940, and defined all

the parameters of the disease.

Dr. Lanza -- Dr. Gardner was writing about how

to produce the disease experimentally in animals, and how

the disease process in animals, depending on time and

quantities of exposure and specific manifestations of the

 27

disease.

There was -- doctors started writing about the

different types of cancer. The first cancer paper was from

England by Dr. Gloyne.

QWhat year was that, Doctor?

A1933, and then it was followed very quickly by Dr. Lynch writing

similarly about lung cancer as a risk for asbestosis in the

year 1935. And then from there on those papers just

accumulated.

The Germans started writing statistics,

quantitative incident reports in 1940 and established that

then the incidence of cancer was about 7.8 percent.

And I mentioned before the paper by Merewether

in 1947 helping that incidence to 13 percent.

By 1955 when I held my conference here, Dr.

Buchanan who had followed Dr. Merewether as Chief

Inspector, presented evidence that reached the level of 25

percent.

By '64 when Dr. Selikoff had his conference, Dr.

McVittie who then followed Dr. Buchanan from England for

the Chief Medical Inspector, had established that

incidence rate of cancer was 50 percent. It is one out of

two people who'd get cancer if they have asbestosis.

And so on, those papers just kept on until

 28

presently the attributable risk is over 80 percent for

cancer.

QLet us go back, if we could, to when you were beginning your

medical studies and your professional work, that is, into

the 1930's.

AYes.

QThere was an article that was mentioned by some of the lawyers

for the companies in this lawsuit, a work by the name

Dreessen. Are you familiar with that?

ADr. Dreessen, yes. That was a major study by the Department

of Public Health. It was published in 1938.

QAnd what did Dr. Dreessen just generally -- what did Dr.

Dreessen look at?

AHis objective was to find out what the incidence of asbestos

disease was in the textile industry of North Carolina, and

the second objective was to find a safe level or what might

be considered relatively safe level. That was the purpose

of the study.

QAnd what was it that he studied?

APersons who worked in four textile mills, asbestos textile

mills in North Carolina.

QAnd you are obviously familiar with his study?

AYes.

QDo you know whether or not the people that he studied were
 29

exposed to a hundred percent asbestos fibers?

ANo. A very, very small proportion of the persons at the

dockside or at the shores where they fed the asbestos into

the machinery might have been exposed to a hundred percent,

but that is not the way the exposure occurred in the

majority.

The majority of the people had been exposed to

mixtures of dust in which the asbestos component would be

below 15 percent.

QDid Dr. Dreessen conduct air sampling within these facilities

that he studied?

AYes.

QAnd did he report those findings?

AYes, sir.

QWere similar studies ever carried out of other people, other

than textile workers, where air samplings were reported in

the medical literature?

AThe reporting in the medical literature is the different part.

QAll right.

AWe did studies for the companies and reported to them and

companies like Johns-Manville, regularly made dust

sampling in all those factories for the Owens-Illinois

Corporation. Saranac set up a dust counting program in

their Kaylo production factory and made them adhere to

 30

safety standards of five million particles per cubic foot

total dust and one million fibers of asbestos per cubic foot

of air.

QLet's talk about that.

The Jury has heard the term mentioned a couple

of times of a TLV or threshold limit value. Are you

familiar with that term?

AYes, sir.

QFollowing Dr. Dreessen's report, was any TLV or threshold limit

value sometimes proffered or discussed in the medical

literature?

AYes, the concept began to be used in 1946, after a committee

of hygienists called the American Conference of

Governmental Hygienists included asbestos as one of the

risks of working in different types of industries and gave

the number to it, and from that moment on a tentative

threshold limit value of five million particles per cubic

foot became enormous, you might call it, for this country.

And many of the states, state governments, adopted that

number.

QNow, when they were -- you had done dust sampling at this point,

is that correct?

ANo, that's the laboratory.

QPardon me?
 31

AI was still with the laboratory.

QDid I say in this country? Have you done dust sampling at this

point in your career?

ANot personally, but observed the engineers do it in the

Department of Mines in South Africa.

QWhen air sampling was done and there was suspected asbestos in

the air, what did the five million particles per cubic foot

represent in terms of what it was counting?

AIn 1946?

QYes.

AExtremely few institutions were able to count asbestos. The

number was all the dust particles which were visible and

the asbestos fiber would require special microscopy

systems that were not yet universally available.

Our laboratory in Saranac Lake, for instance,

and our laboratory in South Africa had that technology, but

it required specialized microscopes, specialized dust

counting methodologies. So whenever you tested, whenever

the standard came into vogue in 1974, that number was for

the total dust, and the industrial hygienists who had been

equipped with the ordinary microscope would be able to

determine through these dust count methods.

QWhat was the total dust in the atmosphere or asbestos dust that

was counted by Dr. Dreessen in 1938?

 32

AHe said five million particles. He said something like if one

could keep the dust level in the textile mills below five

million particles per cubic foot, then, you know, good

results might follow.

QWas that for asbestos dust?

ANo, total dust. Total dust. He said it in his paper. He

tried to differentiate, but couldn't, didn't succeed.

Even he working for the Federal government couldn't come

up with a practical way to differentiate between the two.

QYou mentioned the American Conference of Governmental

Industrial Hygienists.

ARight.

QWas that a branch of the Federal Government?

ANo, no. That was a private society made up of a number of

hygienists, some of them Ph.D's, doctors who had an

interest in industrial hygiene. Some of them were

employees of State Governments. Some of them were

employees or associated with specialty societies like the

Industrial Hygiene Foundation here in Pittsburgh.

Dr. Vorwald later on became I think the

consulting member for it.

QYou've mentioned the Industrial Hygiene Foundation in

Pittsburgh. What was that?

AThat was a trade association, still is. It is supported by

 33

subscriptions from various industries. It is -- industry

pays X number of dollars to the Association per year that

enables the Association to put together teams of scientists

and doctors to study problems for the industry and make

recommendations for them.

QWere you aware of any publications of the Industrial Hygiene

or Health Foundation?

AYes. They had a bulletin, a bulletin of the Industrial Hygiene

Foundation.

QYou were Director at Saranac Lake. Did you receive that

bulletin?

AI received it in South Africa.

QYou mentioned Dr. Dreessen had studied those people employed

in the textile making facility. Are you aware whether or

not the medical literature on asbestos disease in the '30's

and '40's limited itself to the textile manufacturing

employees?

ANo, no. There were all manner of jobs that were associated with

asbestos exposure, and initially the textile group was the

most dramatic and largest, but progressively insulators

became the focus of interest and then increasingly other

varieties of workers who -- miners and millers were a large

group at one time obviously, because that's where the

asbestos is produced.
 34

There was no limitation. It was known in the

'30's that if you breathe asbestos dust you were at risk

of getting disease.

QIf you know or not in the '30's by your information and knowledge

at that time whether or not people's lungs reacted

differently to asbestos depending on what their job was.

AWhether human lungs reacted differently from animal's lungs

over what?

QNo. Whether the textile workers' lungs reacted differently to

insulators, reacted differently than anyone else exposed

to asbestos.

ANo, no. Nobody has ever proven that.

What was proven, though, is that in certain

industries because of the technological aspects of those

industries, the risk for breathing dust, given almost the

same job, was enhanced.

For instance, persons who professionally --

electricians, that's a discovery I made in South Africa

while working there -- had a far greater risk of developing

pneumoconiosis.

And it took me a long time to find out why,

because they weren't working actually with the dust like

a rock driller or anything. It was because electricity

attracts, acts like a magnet, and it pulls dust to the

 35

motors. It is called the gaussian field of electric motor.

And so all dust in the environment goes around the motor

and then when the electrician has to go fix that motor, he's

exposed to a high concentra- tion of asbestos dust that's

accumulated around the motor. And, generally, they'd

clean the motor with an air hose and get a snoot full of

dust into your lungs.

QThat would be a motor that was active and working to create this

electrical field, correct?

AYes, sir.

QWhen did you first become aware from the medical literature or

your training that asbestos was associated with the

development of cancer?

AThe first clear paper was Dr. Gloyne's paper from England, 1933,

I think it was, yes.

QDid the medical and scientific literature at any time reveal

the risk to people other than people in the textile

factories?

AWell, Gloyne's cases were of textile workers. As far as I know,

just those people with asbestosis. I've forgotten what

their jobs were, but increasingly shipyard workers in

Germany started being written about, miners and millers in

Canada.

The reports came from there on lung cancer

 36

problems, and I became much involved with that at the

Saranac Laboratory later.

Insulation workers, I think the first American

paper on that was written in 1942 by Dr. Angrist.

QWho was Dr. Angrist?

AThat was a radiologist in New Jersey whose practice led him into

contact with many asbestos industrial employees from the

New Jersey area.

QAnd what did he write about?

AWell, he wrote very specifically indicating I think in two cases

that these people had jobs as insulators and had lung

cancer.

QIn the late 1930's and early 1940's was lung cancer a common

disease?

ANo, rare.

In the medical school in South Africa, one could

go through a whole year of seeing cases in the wards and

never see a lung cancer case. It was a very rare disease

in South Africa.

And I saw it go up and in a crescendo fashion in

parallel with the growth of the asbestos industry in the

world.

QWhat about in the United States in the late '30's and 1940's

from your review of the literature? Are you aware?

 37

AThe same thing, the same answer. It was a rare disease.

QDoctor, you talked about dust and dust in the air when you were

referring to the field around operating a motor. Did you

in your work at Saranac expose animals to certain dusts?

AYes, sir.

QAnd when you did that, were you required to expose them to a

known quantity of dust?

AWell, we set the quantity for our experimental purposes. We

tried to keep the dust level on an average at a certain

number.

QWhy do you need to do that?

AHum?

QWhy do you need to try to keep the dust at a certain level?

ASo that we could correlate what happened to the lungs of the

animals with the dust level so that we would find out if

the dust is kept at a higher level whether different or more

disease would come, or the disease would come sooner or more

complications of the disease would happen, depending on the

dust level and if we would keep the dust level where there

would be a measurable detriment of the adverse effect of

the dust.

QIn your conducting and supervision of these dusting

experiments, did you have to look at the eight by eight by

eight chamber in which the animals were housed?

 38

AOh, yes, daily.

QDoctor, through your work in that regard -- and we've and you've

talked about this five million particles of total dust per

cubic foot of air -- can you tell us whether or not for the

dust-containing asbestos, is that level a level that we

could see in this room?

AThat would be totally invisible.

QWhy is that?

AThe dust particles are so microscopic in size and you only begin

to see them if they present in such large numbers that

they'll intercept light.

And in our dust chambers we maintained,

depending on the experiment of the dust levels of say fifty

million particles per cubic foot, one hundred million

particles, two hundred million, three hundred million --

different levels. You could not see the dust in the air.

The room would look like this with known quantities of dust

going in in case of asbestos. You wouldn't see it before

the level exceeded six hundred million particles per cubic

foot.

QWhen you went to Saranac Laboratory at some point, you were

contacted by representatives of Owens-Illinois Glass

Company, correct?

AYes, 1954.
 39

QAnd what was the purpose of their contact with you at that time?

AThe Chief Medical Director and the Chief Hygienist came to see

me to ask me to review a study which had been previously

conducted by the Saranac Laboratory starting in Dr.

Gardner's time and going through to Dr. Vorwald's time, and

write an independent report for them on what that study had

revealed, or published.

QNow, that study was a study of what?

AIt was a study of the biological action of their Kaylo product,

the dust from their Kaylo product when inhaled by animals.

QDid you review all of the experimental work and the previous

reports that had been done concerning that study?

AI reviewed the experimental work. The reports I didn't see

until later, not before I finished my own report. Then Dr.

Vorwald still had those reports and the data and rather than

going to the reports, but all the raw materials from the

lab. I made an independent study.

Then later on after my report was sent to

Owens-Illinois, Dr. Vorwald's report was sent back to me

by him.

QAnd you did author a report at the request of Owens-Illinois

and it was published in the medical literature, is that

correct?

AYes, sir.
 40

QNow, when was that published?

AThe American Medical Association Archives of Industrial

Health.

QWhat year?

A1955.

QWhat was the title of that publication?

AThe Biological Action of Hydrous Calcium Silicate.

QFrom your review of the experimental work that had been done

at the request of Owens-Illinois in the years before you

came to Saranac, animals were exposed to certain levels of

dust, is that correct?

AYes, sir.

QFrom what was that dust derived?

AThe dust came from the Berlin factory where the Kaylo product,

pipe covering material, was manufactured and the process

of making that dust, they'd have saws and shavings and

gouging machines that would shake up the pipes so they'd

be perfect, and that generated enough dust so it could be

accumulated by a vacuum cleaning method and put in barrels

and shipped to us. And that's what we studied.

QWas the dust that the animals were exposed to at Saranac that

was shipped to Saranac by Owens-Illinois pure asbestos

dust, or was it dust from the finished Kaylo product?

ANo, it was the finished product. The finished product

 41

consisted of 15 percent chrysotile asbestos and 85 percent

hydrous calcium silicate.

There was one barrel that came that had some

amosite in it, but that was the end of the experiment. The

experiment ran from 1944 I believe through to '52, and that

last barrel came and that was the end.

QWere any dusting experiments from your review done of the

animals from the Kaylo dust in that last barrel that had

some amosite in it?

AAs I said, in the last few months of the experiment, one barrel

contained some amosite, but the majority of the time, about

fours years total on the chrysotile element, the asbestos

element was present in the dust.

QWith whom did you speak at Owens-Illinois concerning your

authorship and eventual publication of the article on the

effects of inhaled hydrous calcium silicate?

AThe two chief scientists that I remember is Dr. Shook and Mr.

Willas Hazard.

QNow, the Jury has heard some testimony by way of deposition of

Mr. Hazard. Could you refresh our recollection who was Mr.

Hazard at that time?

AHe was the corporation industrial hygienist. I don't know what

his precise title was, but his specialty was an industrial

hygienist.
 42

QAnd who was Dr. Shook?

AHe was the corporate medical director. He was responsible for

the health conservation issues for all the branches of the

company's factories all over the world.

QCould you summarize for us the nature and type of discussions

that you had with Dr. Shook and Mr. Hazard as it pertained

to the Kaylo study and your authorship of that article that

was published in 1955?

AWell, essentially they introduced a subject which was new to

me, indicated what they wished to know.

QWhat was that, Doctor?

AThey wanted to know is this material harmful, is it not harmful,

and how harmful is it if it is harmful. Harmful, and in

what manner is it harmful. They wanted to know that. Then

they said, "Whatever you find, we would like you to publish

it."

QWhat did you tell them?

AAfter I had studied it, they came to me a few times. After I

studied it a while, I told them that Kaylo is hazardous

because it causes asbestosis, it causes emphysema, and it

causes a process known as alveolar pleura peribronchiolar

epithelimization, which is the first step you have before

you get to lung cancer.

QYou then went forward and published in the medical literature

 43

those findings, is that correct?

AYes, sir.

QAnd that was by the agreement if not insistence of

Owens-Illinois?

AOh, yeah. Dr. Shook was editor of the journal, so he knew what

was being said.

QNow, the name Kaylo did not appear in that article, did it?

ANo, they asked me not to do that. They said I should call it

by their trade name, hydrous calcium silicate.

QThere are other ingredients to Kaylo besides asbestos, correct?

AYes.

QAnd did they want to know if any of those substances were

hazardous?

AThat was the initial thrust of their request to Dr. Gardner.

The scientists in charge of the production of Kaylo

introduced the concept that here we've made a new product

which consists partly of glass-like material, contains

some silica. It will contain some diatomaceous earth and

will contain asbestos.

They said to Dr. Gardner, "Now, we know something

about each of those ingredients. Will putting them all

together and cooking them into the shape of a pipe covering

machine at a temperature of six hundred degrees, will that

create a hazard or will the hazard go away?"

 44

QAnd from your review of all of the various reports submitted

to Owens-Illinois as well as your final published report,

were there any ingredients in Kaylo that proved to be

hazardous?

AThe asbestos.

QWere any of the other ingredients hazardous in the form that

was used in Kaylo?

AThe silica became combined, became silicate. Silicates,

unless in a fibrous form, are generally not harmful.

For instance, glass is sodium silicate. It is

a mixture of sodium and silica, but it is fused, and that's

an oxygen atom in its molecule traditionally, and that

makes it silicates. So all the prevalences they call it

that are dangerous points on the atom are satisfied because

they have oxygen attached to them so they can't attach to

the oxygen of the body and cause disease. So that hydrous

calcium silicate itself was inert.

QInert means what, Dr. Schepers?

ANo producing, no disease.

QWere these conclusions made known to Owens-Illinois?

AYes.

AAnd by you?

AYes.

QAnd when were they made known by you to either Dr. Shook or Mr.
 45

Hazard?

AIn 1955, I presented all the details of my study at our

conference, which they attended, and then published it.

QDoctor, in terms of asbestos, do you know whether or not

asbestos is a good insulator in and of itself?

AIt has insulation properties because it doesn't transmit heat,

but the main way it is used as an insulating material is

to space it apart.

In other words, make a web of it and make air

spaces in between or put other things in between. Then it

becomes good insulation.

QWhat is the best and most effective insulator?

AAir and an air barrier.

QIs asbestos necessary in a product to give it insulation

qualities?

ATotally unnecessary. All insulation now is non-asbestos.

QAre you familiar with fiberglass?

AYes, sir. That's what I studied for Owens-Corning Company.

AWhen were you first contacted by Owens-Corning Company to study

their fiberglass?

A1954.

QAnd what did they want you to do?

AThey wanted to find out if when fiberglass is combined with

plastic material, polymeric plastic like this box and if

 46

that has been abraded and dust comes off it --

QWhat do you mean by abraded?

ARubbed or scraped or torn or damaged so that it becomes dusty,

whether the dust from that combined product with the

fiberglass imbedded in the plastic would be harmful.

And to do that, I had to study what fiberglass

does itself, what plastic does by itself, what different

combinations would do, heat-treated or non-heat-treated

and all those factors.

But it ended up about 35 or 36 components that

is to cover all the parameters of the possibilities.

QAnd I take it you did -- did you do animal dustings again with

fiberglass?

AWe conducted many animal studies for about four years. It took

altogether about ten years to complete the study.

QNow, that's longer than the time you were at Saranac, right?

AYes. I continued working for them after, after I left Saranac

Lake. Dupont let me do so.

QDid you determine whether or not fiberglass or fibrous glass,

as manufactured by Owens-Corning, could be inhaled and

harmful?

AExtremely difficult to inhale because the fibers are too large,

but if it is inhaled the most it could cause is slight

bronchitis, which you get over when the bronchitis is over.

 47

It doesn't cause a disease in the lung itself.

QIn terms of the fiber size of the fiberglass that was being used

by Owens-Corning in the '50's when you were studying it,

how does that fiber size compare to the fiber size of

asbestos?

AFiberglass, commercial fiberglass such as you might see in an

attic of your house, is about a million times as fat a fiber

as an asbestos chrysotile asbestos fiber.

QDoes that difference in size make any difference in its ability

to be inhaled and retained in the human lung?

ATotally.

QWhy is that?

AThe fiber itself is harmless.

QWhich fiber?

AAny fiber. Because these are silicates they are not soluble

in the tissue, so they don't shed molecules or atoms of

their context into the cells. They cause their damage

mechanically, mechanically in forced mechanics --

QMeaning what?

AElectromechanically. If you make a fiber, say long like this

pencil, then it becomes an electric wire and current flows

through all the time.

QThat's just the nature, correct?

AThat's nature. And so the pointed ends, the ends become

 48

electrified and where the point touches a body tissue, it

will cause certain interaction between the cell and the

fiber. If the fiber is fatter than the cell, it just pushes

it away. If it is thinner, then the cell can go into the

cell and then damage delicate structures inside the cells.

Now, those structures are extremely minute and

asbestos is the one substance in nature that can be so thin

that it can actually enter into the D&A system of cells and

alter those cells so that they become abnormal cells.

QWe've heard some discussions about different asbestos types.

Are you familiar with the different types of asbestos?

AYes, sir.

QWhat are the major types of asbestos that were commercially used

in this country?

AThe major commercial type used in this country is chrysotile.

That comes from Canada mostly, but ninety percent of the

asbestos in use here is a chrysotile product.

QHas that always been the case in the years you've been familiar

with in this country?

ANo. Many years ago, South Africa shipped an enormous amount

of crocidolite, which is blue asbestos, and amosite to this

country. Their production was about a million tons per

year equal to or larger at one time than the Canadian

production of chrysotile and a great deal of it was shipped

 49

to the United States and used here in industries.

But in the past thirty years, South Africa

continues to produce the same amount of asbestos or twice

as much now, but they don't ship it to the United States

or the United States is resisting buying it. And so they

are shipping it to other countries now, so the Chinese and

Indians and all those people are buying it.

QSo about when did chrysotile become the predominant fiber used

in this country?

AI would say from the turning point came about the mid-'50's.

From that time onward increasingly chrysotile became the

dominant material, and today I think in new industry there

is only chrysotile used. There is no amosite,

crocidolite.

QHow is it that the fibers are different, if they are, Doctor?

AThey are different because of their size and their chemical

composition. The crocidolite fibers are very fine fibers.

If you have a scale of fineness, say from zero to nine, the

chrysotile would be at the zero level if that is the

fineness, and crocidolite would be somewhere around four.

QI'm sorry, you started with crocidolite being a zero?

ANo, no, chrysotile.

QOh, chrysotile. I'm sorry. Chrysotileis a zero?

AChrysotile about one hundred times as thin as crocidolite.

 50

QOkay.

AAnd then would come tremolite, which is one of the varieties,

then would come actinolite and then next would come amosite

and then the fattest fibers would be anthophyllite. That

is more or less the gradation of thickness of the fibers.

QWhat about in terms of length? Is there any standard in terms

of the length of these fibers?

AThe length is commercially relevant because the longer fibers

are the better fibers for chemists, but they have no

meaning, length has no meaning for the human lung, because

only fibers that are below a certain number of micra,

microbian, one thousand millimeter.

Only fibers that are say less than fifty micro

in length can get into the fine parts of the lungs anyway.

The longer ones get stuck in air pipes and they don't do

anything.

MR. PYLE: This might be a good

stopping point.

THE COURT: We'll recess until 1:30, Member

of the Jury.

(Thereupon, a recess was had at that time.)

1:32 P.M.

THE COURT: Mr. Pyle.

BY MR. PYLE:
 51

QDr. Schepers, just before the luncheon recess, I was asking you

about your involvement with Owens-Corning Fiberglas.

A(Witness indicating affirmatively.)

QAnd you had told us they asked you to look at their fiberglass?

A(Witness indicating affirmatively.)

QLet me show you what I've marked for identification purposes

as Plaintiff's Exhibit 51.

A(Witness indicating affirmatively.)

QAnd ask you if you can identify this, please.

AYes, sir, I can.

QWhat is that, Doctor?

AThis is a letter that I wrote to Mr. Birch, the Director of

Personnel in the Industrial Relations of Owens-Corning

Fiberglas Corporation on February 6 of 1956, and in it I

summarized the then status of the 35 experiments I was

conducting for them to determine the biological activity

parameters of their fiberglass plastic material.

QAnd is that a true and correct copy of that letter you sent in

1956?

AYes, sir.

MR. PYLE: I offer Plaintiff's

Exhibit 51 into evidence, Your Honor.

MR. FOURNIE: No objection, Your Honor.

THE COURT: Admitted.

 52

BY MR. PYLE:

QDr. Schepers, I'm also going to show you what has been marked

for identification as Plaintiff's Exhibit 53. Can you

identify that for us?

AYes, sir.

QWhat is that?

AThat is another letter that I wrote on July 27, 1956, relating

to studies I had published on the biological properties of

thin glass wool fibers.

QAnd did you send that to Owens-Corning at the time indicated

on the letter?

AYes, it also went to Mr. Birch of the Owens-Corning Corporation.

QAnd is that a true and correct copy of the letter you sent?

AYes, sir.

MR. PYLE: I offer Plaintiff's

Exhibit 53 into evidence, Your Honor.

MR. FOURNIE: No objection.

THE COURT: Admitted.

BY MR. PYLE:

QFollowing, or as a part of your work with Owens-Corning

Fiberglas and your experimental work with their fiberglass

products, did you have occasion to meet with them near or

at their headquarters in Ohio to discuss the findings

pertinent to worker health?

 53

AYes, sir, that occurred in 1956 at a place called the Grandville

Inn, which was a motel I would say or hotel just south of

Toledo, Ohio near the research station.

QHow did that meeting come about?

AThey had set it up in response to my rejection of their proposal

that I conduct a study for them on a fiberglass/plastic

material but with an asbestos substituting for the

fiberglass.

QWhy were they interested in that?

AThey were making the body for a Chevrolet-type automobile

called a Corvette, which is a sports automobile at that

time, and its body was made all from plastic, with a

fiberglass in it.

And they informed -- the theory that is under

certain heat conditions the engine of the car could bend

the cowling of the bonnet as it is called, and that if they

substituted asbestos, that maybe that would not lead to

heat bending because the fiberglass can melt at certain

temperatures.

QDid you conduct those experiments?

ANo, I turned them down. I told them that although we have the

facilities, it would be a waste of time because we had just

done, just completed the Kaylo study. The Kaylo study was

essentially similar on a material that was essentially

 54

similar, because we had a mixture of asbestos and inert

hydrous calcium silicate, and here we would have a mixture

of asbestos and inert polymeric plastic.

And I told them that the body would take the

plastic particles apart, return the asbestos fibers as it

did with Kaylo, and the result would be that people would

get asbestosis and possibly cancer; and we would have no

control over that because these would be garage mechanics

adjusting or sanding or shaping cars out in any town

anywhere, and they wouldn't be able to control it, then that

would lead to danger for many people.

QHow is it then that led to you going to the research facility

or in Grandville, I'm sorry, near Grandville at the

research facility in Ohio?

AIt was a major commercial decision for them to abandon the

Corvette project and many of their senior officers had to

be involved, so Mr. Birch called a meeting of 22 of their

scientists and managers and asked me to address them and

explain to them what the problems would be for them

health-wise if they pursued that idea and the reasons why

I was disinclined to do the study for them.

And they, of course, thought I might be, thought

my mind could be changed; that they would still be able to

go ahead with this, so I spent the whole day with them and
 55

explained to them what asbestos does, what fiberglass does,

what silica does, how Kaylo behaved in animals and what it

would likely do to human beings and sketched for them the

probability of what would happen if they went ahead with

their product.

QWas there any discussion held in Grandville -- and this was

what, 1956? I'm sorry, what year was it? What year did

you go to Grandville?

AWhat year? 1956.

QRight.

Was there any discussion at this meeting in

Grandville in 1956 about the disease of cancer and its

relationship to asbestos?

AIt was very largely about that. The danger of cancer was seen

by me as the hidden, lurking danger that they would not be

able to control because nobody -- there was no safety limit

level for cancer.

There had been a five million particle level set

for asbestosis, but there was nothing anybody had suggested

as a safe limit for a cancer prevention when asbestos was

involved.

QDoctor, you mentioned briefly one -- let me ask you this. In

experiments of the availability of Saranac Laboratory and

its facilities, to whom were those facilities available?

 56

AAnybody who wished to do a search.

QYou didn't remit it to anyone or two or three companies?

ANo, no. Anybody. The only limitation was the amount of work

we could undertake, because we are a limited amount of staff

and the essential methodology we followed was the expulsion

method. The expulsion chamber method. We had only eight

chambers. We didn't have any money to expand it further

or the personnel.

QYou mentioned earlier a trade organization known as the

Asbestos Textile Institute, correct?

AYes, sir.

QWhat was that?

AThat's a trade organization of asbestos manufacturing or

producing companies that also have as one of their

activities the production of textiles.

QDid you ever have any involvement with that institute?

A Yes, sir.

QWhen was that?

AIn October of 1954 it began.

QWhat was the nature of your involvement?

AI was invited to talk to them to address the issue of the threat

of cancer as it relates to asbestos dust exposure.

QWhat did you tell the Institute at that time?

AI spent the whole day talking to them, but in essence what I

 57

said is that the industry stood accused by the world

literature of producing a product which causes cancer and

that they would remain so accused by the world of literature

unless they, themselves, could prove the opposite; and the

way they might do that was to prove that they had ways to

make the use of asbestos as safe or that some of the

publications and literature were not true because they

could produce the opposite information, and that possibly

there were factors other than asbestos corroborating with

the asbestos to promote cancer production and that if those

could be identified, those would be important items also

to eliminate.

For instance, cigarette smoking.

QDid you have any other involvement with the Asbestos Textile

Institute other than meeting in October of '54?

ASimilarly for the Quebec Asbestos Mining and Milling

Association, I had a similar research project studied, one

hundred other cases to determine the type and quantity and

the distribution of asbestos in the lungs of persons with

lung cancer and mesothelioma.

QAt one point this morning, I think you talked about a concept

of a latency time frame.

A(Witness indicating affirmatively.)

QWhat is that?
 58

ALatency is a technical term that refers to the time interval

that elapses between the time a worker first becomes

exposed to a substance which is capable of producing

disease and the time when the symptoms of that disease

become so clear that the disease can be diagnosed as

existing.

QDoes that concept of latency apply to an asbestos-caused

disease?

AVery definitely.

QHow long has that been known, that a concept of a latency period

applies to an asbestos disease?

AIt is essentially mentioned in Dr. Merewether's report in 1930.

QDoctor, at the time that you were, you began working in this

country, first in your year of study at New York University

and then later as the head of the Saranac Labs, did you

become familiar with the products and what was available

to be used as an insulating term?

AYes.

QWere there things other than asbestos being used as insulating

material during that time period?

AYes.

QSuch as what?

AFiberglass is one. It is today the insulating material of

choice. Many companies, some here in Pittsburgh, some

 59

other places were beginning to manufacture materials now

known as submicron amorphous silicate products, which are

very, very minute particles of silica. That is what is

called amorphous rather than crystalline form, and these

molecules push against one another so they make natural

spaces in the substance.

QAnd that spaces, those spaces are good for what?

AThat makes the insulation.

QYou said you had tested products and new products for both the

company and for consumers for Dupont Company, is that

correct?

AYes.

QDid you have any responsibility while at Dupont Company for the

labeling of Dupont's products?

AYes, that was one of our responsibilities.

QAnd what sort of products did the Dupont Company label that you

had tested or worked on for them?

ATheir products were predominantly chemical. They invented

something like 3,000 new chemical formulations per year.

Their scientists selected some of those for practicality

and when a use was found for the new chemical, then that

was sent to our laboratory to test against animals to see

whether it had a harmful or other biological properties.

QWas there anything that while you were at Dupont that you had
 60

utilized as a guideline for whether or not labeling should

occur?

AYes. The two -- at the production facility, at the production

end when the research had been accomplished -- and that was

the purpose, one of the purposes of our research, is to

ascribe parameters of harmfulness or otherwise -- is the

opposite when it went into production because some of the

materials that Dupont produced were highly poisonous but

they were useful, and others were half poisonous and others

were no poison.

There was a schedule of labeling and methodology

that had been worked out by the American Manufacturing

Chemists' Associations, oh, in the early parts of the

'40's. I first saw it when I was a student in 1950 in use

at Dupont, and when I worked for them. That was my job

every day, to advise the people in their offices who had

to label products what type of labels to attach to whatever

barrel or stuff they were selling.

MR. SCHACHTMAN:Your Honor, I have an objection

I will make here or at sidebar, as the Court pleases.

THE COURT: Come to sidebar.

(Thereupon, the following sidebar conference

was had as follows, out of the hearing of the Jury:)

MR. SCHACHTMAN:Your Honor, on behalf of

 61

Owens-Illinois, I anticipate that Mr. Pyle will be going

into an area that deals with the Chemical Manufacturing

Association guidelines on warnings. They have a warning

from 1945 that they propose be used with chemical dusts that

were hazardous. It has no applicability in this case.

We are not dealing with a chemical such as

cyanide dust or some other acutely toxic poison that would

require such a label under CMA's guidelines, and I think

it will require a collateral investigation of exactly what

the CMA had in mind when they proposed these regulations

or these proposed warning labels.

THE COURT: Wait. Let me ask.

MR. PYLE: That was actually my very

next question, was did that guideline have any application

to asbestos, to which his answer will be yes, it was as to

all harmful dusts, and then I was going to show him the

schedule of guidelines.

MR. SCHACHTMAN:Well, Your Honor, there is no

schedule of chemicals to which it applies and the CMA never

addressed itself to the issue of warning labels, let's say

on raw asbestos that were shipped by them in the United

States.

THE COURT: Your objection is it is not

relevant?
 62

MR. SCHACHTMAN:It is not relevant.

THE COURT: How is it relevant?

MR. PYLE: Because he is going to say

this. It is not a schedule of a listing of a chemical A,

B, or C. It is if a product is this and these are the acute

effects. These are the non-acute effects. This is a type

of warning to be used. It talks about liquids. It talks

about specifics and it talks about dust and fibers, and the

doctor is going to say it is relevant because that schedule

of where it fits into these frameworks is to what sort of

warning was applicable to asbestos.

MR. SCHACHTMAN:Your Honor, I don't think he

talks about fine chemical dust.

MR. PYLE: It talks about dust.

MR. SCHACHTMAN:Yes, and I think it means

chemical dust like, you know, sodium cyanide dust.

THE COURT: Does it say chemical dust?

MR. PYLE: No, I will get the exhibit.

Thank you.

MR. SCHACHTMAN:I believe in the Preamble it

describes its applicability to chemicals.

MR. PYLE: Well, page 5 of the exhibit

which is marked for identification as Exhibit 5, it says

dust -- solid particles generated by handling, crushing,

 63

grinding, rapid impact, detonation and decrepitation of

organic or inorganic materials such as rock, ore, metal,

coal, wood, grain, et cetera. Dusts do not tend to

flocculate except under electrostatic forces. They do not

diffuse in air or settle under influence of gravity.

I think that's very --

THE COURT: The objection is overruled.

MR. PYLE: -- clear.

(Thereupon, the following was had in open

Court:)

BY MR. PYLE:

QDr. Schepers, those guidelines that you just mentioned before

the break, did that have any application to asbestos?

AYes, it did.

QWhy is that?

AWell, it is a section there on dust and if the dust were

demonstrated to be injurious by inhalation, then the

product containing the material that could be dusty and

inhaled would have to be labeled to bring to light that it

is an injurious product or potentially injurious product.

QI am going to show you what has been marked for identification

as Plaintiff's Exhibit 50. Can you identify that?

AYes, sir. This is the manual I am referring.

QAnd that was a manual that you first saw in what year?
 64

A1951.

QThat's the manual that was prepared by what organization?

AIt is the Manufacturing and Chemists' Association. It was

later adopted and disseminated by the Department of

Commerce of the United States Government.

QDr. Schepers, based upon your training and experience and

professional activities, in your opinion should it have

been known by a manufacturer of an asbestos-containing

product that exposure to asbestos could cause disease?

AThat knowledge started in the civilized world in the year 1898

with the first demonstration in England of an epidemic

illness of a serious nature, but undisclosed type in

workers in the textile factories where asbestos was used.

That was discovered by the Inspector of Factories of

England at that time.

QNow, was that published in the medical and scientific

literature?

AYes.

QDoctor, when did it become clear in your mind based upon your

experience and training that an asbestos exposure could

cause a fatal disease?

AFatal disease, the first such described case was described in

the medical literature in 1907, but Dr. Montegue Murray who

described the autopsy of one form from that series --

 65

MR. McDONALD: Objection, Your Honor.

THE COURT: Overruled.

BY MR. PYLE:

QDr. Schepers, following the report that you mentioned in 1907,

did or did not the information continue to grow and develop

about the asbestos health hazards?

AYes, sir, it progressively did.

QWhen, in your opinion based upon the medical literature that

you have reviewed, would a manufacturer of an asbestos

product, when should they have been aware of the question

of whether or not the users of an asbestos product were at

risk of developing an asbestos-caused disease?

AThat is implied in Dr. Merewether's report.

QOf what year?

AOf 1930. It is referenced to some extent in Dr. Lanza's book

of 1938. It is clearly described in the Angrist and Holleb

paper of 1942 that serious injury and death would follow

in users like insulators.

QDoctor, when in your opinion based upon your review of the

medical literature and your experience and training should

a manufacturer of an asbestos-containing product have been

aware that exposure to asbestos can cause cancer?

AThat awareness was announced to the world in 1933 by Dr. Gloyne

of England. He described a case of lung cancer and pleural

 66

cancer. It was told in 1938 by the paper by Dr. Lynch of

this country. It was followed by papers in 1938 by

Germans, also describing cancer.

In 1942, Germans had demonstrated that the

incidence of lung cancer was seven times the normal

occurrence of lung cancer in asbestotic subjects.

In 1947, Dr. Merewether had said, demonstrated

it as thirteen times. It is an enormous high hazard. The

knowledge has grew with time.

QDoctor, when in your opinion based upon your review of the

medical and scientific literature and your experiences

should a manufacturer of asbestos-containing product have

been aware of the risk of the development of mesothelioma

as a result of exposure to asbestos?

AThe word mesothelioma started being used in relation to

asbestos in this country or either in Canada in 1942, the

first publication thereof, 1942, in persons who were

miners, millers of asbestos and then progressively papers

appeared from there onwards, one by one, clusters. I would

put the date of fairly definite knowledge as being

mid-'50's.

QDoctor, we've talked about briefly about types of fibers. One

fiber we didn't talk about much is tremolite. What is

tremolite?
 67

ATremolite is one of the varieties of commercially available

asbestos. It is chemically linked to chrysotile in that

its predominant molecular constituent is magnesium and

silica. It differs from chrysotile in that it also has a

large amount of calcium in its molecules and the fiber is

solid rather than hollow.

Chrysotile fiber is hollow. The tremolite

fiber is solid.

QWhere is tremolite found?

AThere are some places in the Mediterranean, in Italy, in Cyprus,

where there are relatively pure deposits of tremolite, so

it can be mined, produced and sold as tremolite but the

greatest amount of tremolite occurs in Canada where the

tremolite content of chrysotile is always there and varies

from two to eight percent of the product.

QIs tremolite specifically by itself mined in Canada for

commercial use?

ANo, no.

QHow does it come about, then?

AIt is just part and parcel of chrysotile. It is an inseparate

part. The tremolite fibers are intermingled with the

chrysotile fibers and they are bonded together by a

cement-like substance so that they will enter the body

together.
 68

QIs there a way of separating that tremolite from the chrysotile

in such a fashion that it is commercially feasible?

ANo, that's not technically possible. Chrysotile fibers are

invisibly small, invisibly thin. There is no technology

that can break them down so that if you have a cluster of

fibers with a tremolite fiber stuck in the middle, that you

could separate them out, take your tremolite out and then

recompose it. It is not possible.

QDoctor, based upon your training and experience and your

recording of the medical and scientific literature, do you

have an opinion as to whether or not all of the

commercially-used fiber types of asbestos as were

commercially used in this country, are or are not capable

of causing pleural mesothelioma?

AThe way the question is asked, I would have to say so, say yes.

There is a fiber type called anthophyllite which

is produced in Finland and maybe a few other places. I

think there is some that's produced in Brazil now that has

not been proven to cause mesothelioma, but all the others

-- crocidolite, amosite, tremolite, actinolite and

chrysotile are very definitely associated with

mesothelioma.

QAre there variations in the ability of the different fiber types

to cause malignant mesothelioma in man?

 69

AYes.

QWhat is the variability?

AThe ability is expressed in the speed with which the disease

can be produced. On a scale of say one to five if one is

the highest speed, then you'd have to put crocidolite

there; two would be tremolite, three would be amosite; four

would be chrysotile, and five would be anthophyllite, being

not knowing the cause of the disease.

QDo you have an opinion as to whether or not cigarette smoking

can cause pleural mesothelioma in man?

ANo, it is impossible. It is not known to occur.

QDoctor, all of the questions I've asked you this afternoon or

even this morning, if they called for an opinion, were those

opinions all expressed to a reasonable degree of medical

certainty?

AYes, sir.

MR. PYLE: I have no other questions

of Dr. Schepers, Your Honor.

MR. SCHACHTMAN:Your Honor, with the Court's

permission, I'll begin, but I was first wondering if I first

may introduce myself to the Jury.

THE COURT: Yes.

MR. SCHACHTMAN:Members of the Jury, my name is

Nathan Schachtman. I am here along with Ms. Condo. I am

 70

going to be representing Owens-Illinois,

71
 73

and I'll probably conduct the first cross-examination

of Dr. Schepers.

Your Honor, if I also may set up the easel.

CROSS-EXAMINATION

BY MR. SCHACHTMAN:

QGood afternoon, Dr. Schepers.

As you know, my name is Nathan Schachtman.

Mr. Pyle asked you about whether you were

hearing-impaired and, in fact, you read lips, is that

right?

AYes, sir.

QSir, if I turn away to write something on the flip chart or

get a paper and you don't see me, see my face, and you

don't hear what I say, will you let me know?

AYou might not get an answer.

QI'll be glad to repeat the question if that happens.

Are you seventy-eight or seventy-nine years old?

AI'm seventy-eight.

QSeventy-eight. And you're no longer working at the Veterans'

Administration?

ARight.

QNow, your first article on asbestos was the article on Kaylo,

is that right?

AYes, I think so.

 74

QThe first one specifically on asbestos?

AYes.

QWhen was the last time in the medical literature that you

published an article specifically on asbestos?

AThe publication that should be the last one would be this year,

the New York Academy of Science on the asbestos

availability.

THE COURT: Doctor, could you speak up

a little bit so the Jury can hear you?

THE WITNESS: I'm sorry. It's a paper

on the Asbestos Abatement Program of the Veterans'

Administration.

BY MR. SCHACHTMAN:

QBut it is not a medical study, is that right?

AOh, it's a medical study, but it refers to the practical

management of a problem, to help it go away.

QLet me approach it a different way.

Generally, an epidemiological study requires

the collection of at least nine or so cases, is that right?

AYes.

QNow, limiting the question then to epidemiological studies,

you have not published any epidemiological studies on

asbestos in cancer, is that right?

ANo.
 75

QSo I was correct, that you have not published, is that right?

ACorrect, I haven't.

QMr. Pyle asked you some questions about different fiber types,

and I just want to make sure that I understood and everyone

else understands the different types.

The chrysotile asbestos is the kind that is mined

in the Quebec Province in Canada, is that correct?

AMainly there with respect to Canada, the other places in the

world it is mined, but to the extent that we use chrysotile

in America, it almost all comes from there.

QAll right. And this is sometimes referred to as white

asbestos, is that right?

AYes.

QAnd amosite asbestos -- by the way, the amosite is an

abbreviation for the asbestos mines of South Africa, is

that correct?

AYes.

QAnd the only place in the world that's mined is in the Transvaal

Province of South Africa?

AThat is my understanding.

QYou did come from the Transvaal, is that correct?

ANo.

QAnd this is sometimes referred to as brown asbestos, correct?

AYes.
 76

QAnd the other kind you talked about was crocidolite, which

is sometimes known as blue asbestos, is that right?

AYes.

QAnd crocidolite is mined to some extent in the Transvaal, but

in South Africa mainly in the Cape, is that correct?

AWell, there's a little of it in the Transvaal, but mixed in

with amosite, but the main source is the Cape Province

in South Africa. There is now some produced in Australia.

QAnd that's from Western Australia?

AYes.

QAnd there is some from Bolivia as well, is that right?

AYes.

QAnother term I want to define before I go into my

cross-examination is the word neoplasia, which I guess

is a Greek word for new growth, right?

AYes.

QAnd that's sometimes used to refer to cancer, is that correct?

AYes.

QDoctor, your views on asbestos have certainly changed over

time, is that correct?

AHad to. We got new knowledge.

QAnd that's because research in asbestos and medicine, as well

as most other fields in medicine, is an ongoing process,

is that right?
 77

AYes.

QAnd the way medicine and science works is that ideas are

subjected to tests, experimental observations and the

theories either hold or up they don't, is that right?

AYes.

QAnd the old theories have to be discarded and

sometimes --

AOr modified.

QOr modified?

AYeah.

QAnd you would agree that in good faith doctors and scientists

sometimes believe theories that prove to be wrong?

AYes.

QAnd with respect to the idea of substances such as asbestos

that could be harmful, scientists have looked not only

at the idea that those substances may be harmful, but also

whether there may be a safe level of exposure to those

substances?

AThat was the theoretical consideration, yes.

QAnd certainly there are many substances in a work place that

have the potential to be hazards if they are there and

in excessive levels, is that right?

AYes.

QFor instance, silica dust that might be used in foundries would

 78

be a potential hazard for causing silicosis --

AYes.

Q-- is that right? And beryllium metal, if it's used in an

uncontrolled fashion could cause some disease called

berylliosis?

ANot the metal, the salt.

QThe salt of beryllium, all right. And the kind of

investigation -- well, let me rephrase that.

Let's turn first to Dr. Merewether. Dr.

Merewether you say was both a lawyer and a scientist, is

that right?

AYes.

QAnd Dr. Merewether, or Mr. Merewether, whatever, looked at

specifically at the question whether asbestos can cause

disease, but he also looked at the question whether there

was a practical guideline for whether certain exposures

were safe or not?

AYes.

QAnd he made certain recommendations in his 1930 report which

you discussed --

A(Witness indicating affirmatively.)

Q-- about what he thought the levels should be in order to prevent

asbestosis from occurring in textile workers, is that

correct?
 79

ASpecific, no, he didn't suggest. His emphasis was on

methodology.

For instance, wetting it down, drawing the air

away from the workers' breathing zone, medical

examinations, telling them of the hazard and that sort

of thing. But I don't recall that he was able and I don't

think the technology existed for him to be able to come

up with a specific number.

QYou're correct, he didn't recommend a number, but he did

recommend that the dust level be kept down to a certain

part --

AYes.

Q-- of the plant he was studying where he didn't see very many

cases of asbestosis, is that right?

AYes.

QAnd that sort of recommendation, that way of thinking about

asbestos and disease led to the enactment of a law in the

United Kingdom?

ARight.

QCalled the Factory Act, right?

ARight.

QAnd that came in several parts, but it was over the time period

1931 to 1933, is that correct?

AYes, sir.
 80

QNow, before the enactment of the Factory's Act in England,

there were really no controls on the levels of asbestos

that was being used, is that right?

AThat is so.

QAnd Dr. Merewether's report was instrumental in attracting

the attention not only of legislators in England, but also

of scientists in the United States about the need to control

levels of asbestos in the work place, is that right?

ARight.

QAnd, by the way, Dr. Merewether was looking primarily at

asbestos textile factory workers, is that correct?

AYes.

QBut he did in the course of his report talk a little bit about

insulators, is that right?

AYes.

QNow, the products that insulators were using back in the 1920's

and the 1930's included the use of insulating mattresses,

is that right?

AYes.

QAnd in England, it was fairly common to stuff those mattresses

with blue asbestos, is that right?

ABlue or brown.

QAnd then they'd be used to wrap around a boiler or steam

locomotive engine or something like that?

 81

AYes.

MR. PYLE: Excuse me. If we are going

to write the whole answer he said, he said blue or brown,

not just blue.

MR. SCHACHTMAN: All right.

MR. PYLE: Thank you.

BY MR. SCHACHTMAN:

QAnd these fibers, the blue or the brown asbestos, were coming

from South Africa at that time generally?

AYes, sir.

QNow, after Merewether published his report, the United Kingdom

through its Parliament, did not act to ban asbestos. It

simply imposed legal restrictions on the levels of asbestos

that would be tolerated in the work place, is that right?

AI think that accounts for it.

QDr. Schepers, when you first came to the United States, you

were attracted to the idea of studying with a physician

by the name of Dr. Lanza?

AYes, sir.

QAnd at that time Dr. Lanza had an international reputation

because he had attracted your attention in South Africa,

is that right?

AYes, sir.

QAnd Dr. Lanza was certainly a very important figure in the

 82

early history of industrial medicine in the United States

with respect to asbestos silica and various other

occupational lung disease problems

AThe most important figure for all time.

QAnd you personally had a great deal of respect for Dr. Lanza

and you still do?

AYes, sir.

QDr. Dreessen was a physician with the United Public Health

Service, is that correct?

AYes, sir.

QAnd I think you said studied also asbestos textile workers

in this country, correct?

AYes.

QAnd those factories he studied were in the Carolinas, is that

right?

ANorth Carolina.

QIn doing his study, Dr. Dreessen looked at the way asbestos

was being used at different parts of the factory in these

Carolina textile plants, is that right?

AYes.

QAnd, for instance, in one part of the factory where they

performed a process called willowing, the exposure was

to pure asbestos, is that right?

AYes.
 83

QAnd the dust counts in the willowing areas would represent

pretty much all asbestos?

AI can't say it with that specificity, but --

QI am not suggesting --

ADepending on --

QIt was one hundred percent --

ADepending on the point of the factory, it could range from

one hundred percent to five percent.

QDo you know what the ratio of asbestos to cotton was in the

factories he was studying?

AI've forgotten my detail, but my impression was it was something

like ten or something around there of asbestos and then

the rest cotton.

QTen percent asbestos?

AYes.

QThat's your understanding?

AThat's what I remember. I haven't read that paper for many

years.

QDr. Dreessen looked at the various dust levels and the different

parts of the factory. He took x-rays of the people who

worked in different areas, and he made a

practical recommendation that -- and it was a tentative

recommendation -- that if the dust levels were kept below

a certain level, the five million particles per cubic foot

 84

-- that new cases of asbestosis would probably not appear,

is that right?

AThat is correct.

QAnd, by the way, the million particle per cubic foot is usually

abbreviated as mppcf?

ARight.

QAnd that's how it will often appear in the article.

The very next year Dr. Dreessen, along with Dr.

Sayers I believe it was --

AYes.

Q-- published their conclusions in a different forum, this time

in pages of the Journal, meaning the American Journal of

Public Health, is that right?

AYes.

QAnd their recommendation and their conclusions led to the idea

of a maximum allowable concentration later revised to be

a threshold limit value, is that right?

AI can't say that that's right. The paper of Dr. Dreessen and

Sayers was sort of a short form of the big paper. Dr.

Dreessen's original paper was about a two hundred page

book, and in the subsequent year a shorter essay was written

by the two for a more practical use, and I think that was

about five or six pages long. That's a difference.

Whether they made any different conclusions, I can't be

 85

sure of that.

MR. SCHACHTMAN: Your Honor, I just beg the

Court's indulgence for a minute.

Your Honor, I don't know where we are on Defense

Exhibits, if OI has none at this point. I would ask that

these be marked OI-1 and OI-2 for purposes of

identification at this point.

BY MR. SCHACHTMAN:

QDr. Schepers, I'm going to hand you what I've marked for

identification as OI-1 and OI-2 and ask you if you can

identify for us these exhibits.

AYes. No. O-11 --

QI think I intended that to be OI-1.

AOI-1 was the original paper.

QThe 1938 paper?

AYes. And OI-2 is the abbreviated paper.

QAnd that came out in 1939. That was published the next year,

all right.

The term maximum allowance concentration,

however, had been used previously with respect to other

substances such as silica, is that right?

AYes.

QAnd after Dreessen published in 1938, then in 1939 people began

to talk about the five million particle per cubic foot

 86

recommendation of Dr. Dreessen as an MAC for asbestos,

is that right?

AHe suggested that and stuck to the five number.

QAll right. And later on in the 1950's the terminology of

threshold limit value or the TLV, which was thought of

as a time weighted average was introduced, is that correct?

AThe time weighted average concept came in the '60's when the

TLV name came in about 19 -- in the mid-'40's.

QDoctor, the recommendations -- you mentioned a body known as

the American Conference of Governmental Industrial

Hygienists.

AYes.

QAnd their recommendations were published in the medical

literature each year or almost every year throughout the

1950's, is that correct?

AWell, I don't know if you can say the medical literature, but

they were published as reports of that committee. They

were not medical doctors; they were hygienists. So you

might have to say they were published in the scientific

literature or technical literature.

QWell, Dr. Vorwald, Arthur Vorwald, who was your predecessor

at Saranac Lake, was a physician, is that correct?

AHe became a consultant to them at one stage, I think.

QI'm sorry?
 87

AI think at one stage he became a consultant to them.

QAll right.

In fact, he sat on the Threshold Limit Value

Committee of the American Conference of Governmental

Hygienists in 1952?

AThat's correct.

QAnd the recommendations of that committee were published for

that year, 1952, to pick one year in the American Medical

Association Archives of Industrial Hygiene and

Occupational Health?

AYes.

QAnd that was, in fact, the very journal that you published

your article on Kaylo?

AYeah. This is the excerpt from their reports. Their reports

went into a journal of their own as books, and you could

buy those books if you are interested, and then

periodically an excerpt of this went into the journal,

such as you are referring to.

QI'm not going to take out every year, but I'm going to hand

you, Your Honor, if I may, mark this as Owens-Illinois-3.

Now, Dr. Schepers, the book that you were talking

about would be something you would get if you were a member

of the American Conference of Governmental Hygienists,

but this list of substances with the actual recommendations

 88

would be something that every physician who received this

journal would get, is that correct?

AYes, I would think so.

QAnd this -- and it is about, oh, maybe seven or eight pages,

and there are literally hundreds of different substances

on the list that the conferences recommended limits for

each substance, is that right?

AYes.

QAnd, Dr. Schepers, if you would turn -- I think I have a

different year from what you have. If you give me a minute

to go back.

If you would turn to the last page, page 180

of that issue of the American Medical Association Archives,

there is a heading there for mineral dust.

AYes.

QAnd there are listings there for mica and talc, alumdum, an

asbestos called alumdum, caroborundum, silica, soapstone,

is that right?

ARight.

QAnd for asbestos it's listed as five million particle per cubic

foot, is that right?

A Yes.

QAnd for nuisance, for instance, nuisance with no free silica,

there is a listing of fifty million particle per cubic

 89

foot, is that right?

ASilica depends on the silica content.

QIf you look in the left-hand column, Dr. Schepers, under dust,

nuisance, no free silica.

AOh, oh, nuisance. Yes, okay.

QAnd that's fifty million particle per cubic foot?

AYes.

QAnd, now, as far as whether we're talking about time weighted

averages, Dr. Schepers, let me show you the 1957 version

of that list -- and, Your Honor, I've pre-marked this as

Defendant's Exhibit OI-4.

MR. O'BRIEN: What is the date of OI-4?

MR. SCHACHTMAN: OI-3 was 1952.

MR. O'BRIEN: Thanks.

BY MR. SCHACHTMAN:

QAnd, Dr. Schepers, in the 1957 version the American Conference

of Governmental Industrial Hygienists talk about the idea

of a time weighted average, is that correct?

AThat's correct.

QDr. Schepers, if you will forgive me for doing some time

traveling here, I want to go back in time to 1942.

Dr. Angrist, by the way, was in Queens, New York

not New Jersey, is that right?

AYou may be right, but I knew him in New Jersey.

 90

QIt is only that I grew up near Queens, so I was kind of fond

of the locality.

When he was publishing in 1942, he was publishing

out of a hospital in Queens, New York?

AI think so, yes.

QAnd when he did publish that article, he specifically refrained

from making any conclusions -- this is in 1942 -- about

whether the asbestosis that he found on autopsy was

causally related to lung cancer that he found.

AI think he was very cautious in the way he said it, yes.

QAnd that wasn't unusual.

For instance, Dr. Kenneth Lynch from South

Carolina had also been very cautious in refraining from

drawing a causal association between the asbestosis he

found on autopsy with the lung cancers he found on autopsy.

AThat was so for his 1939 paper, but later on he became more

positively convinced.

QEven in his 1955 paper, he also expressed some hesitation to

draw a causal association.

AIn the '55 paper, he was concerned about chrysotile per se,

and he was beginning to have some uncertainty on that.

That is what he said then.

QDid he not express some lack of conclusiveness, I will put

it that way, about whether asbestosis was causally

 91

associated with lung cancer in 1955, in his articles in

the Southern Medical Journal?

AThat part I forget, but that would be totally inconsistent

with the whole world's thinking. By then laws have been

made all over the civilized world linking it.

MR. PYLE: Doctor, could you just

repeat that?

THE WITNESS: I said laws have been made

all over the civilized world -- England, South Africa --

linking these two concepts of asbestos, asbestosis and

cancer.

QDoctor, I don't have the Lynch article readily available, but

I'm going to try to come back to it.

Dr. Homburger was a pathologist at the Yale

Medical School in the 1930's and 1940's, and he, too,

published on this issue and expressed doubt or, he refused

to draw a causal association between asbestosis and lung

cancer in that time period, is that right?

AWhat Freddie did -- okay.

I knew him in Boston, not Yale. I'm not really

aware of that. Maybe he wrote a paper of that sort, but

I'm not aware of that.

QDr. Schepers, I've handed you what I've pre-marked as

Defendant's OI-5, I believe. And it is an article by Dr.

 92

Homburger.

AYeah.

Q From 1943, is that correct?

AYes.

QAnd on the very last page of that article, he reviewed the

German literature. He reviewed some other people's work,

and he specifically refrained from drawing any causal

conclusion about the very subject you've talked about here

today, is that right?

AYes.

QIn 1946, Dr. Schepers, there was a publication of an industrial

hygiene engineer by the name of Philip Drinker --

AYes.

Q-- is that right? And you knew Dr. Drinker from the Harvard

School of Public Health?

AVery well.

QAnd, in fact, later on in your career you dedicated the

publication of the 1955 Saranac Symposium book to Dr.

Drinker; and among others --

ARight.

Q-- Dr. Drinker was certainly one of the outstanding public

health people in the United States in the 1940's?

AHe was.

QAnd when the United States government was going to war in the
 93

1940's and they were concerned about new people coming

into shipyards who may not have experience working in a

shipyard with all the various potential hazards in the

shipyard, they asked Professor Drinker to draw up a set

of guidelines for them for the shipyards?

AYes.

QBoth Federal and private, right?

AYes.

QAnd during the war when they became concerned about whether

there was any bad health consequence from the asbestos

exposure and they were using asbestos the way they had

never used before in those shipyards, they asked Professor

Drinker to conduct a health survey of the insulators, both

in the Federal shipyards and in the private shipyards,

is that right?

AYes.

QAnd that was the study that was published in 1946. He wasn't

the only author, but for our purposes it is the only author

I'm going to draw your attention to, is that right?

ACorrect.

QAnd in looking at over a thousand insulators Professor Drinker

did dust counts. He had people, physicians look at x-rays,

and he drew a conclusion that the insulation work, such

as he had observed in the shipyards, was not a dangerous

 94

occupation, is that right?

AI can't say it exactly that way. You should say it the way

he said it. He said such --

QSuch insulation work as he had seen --

ARight, but that such refers to what comes before and what comes

before describes the how you control the dust and then

gives the list of things. Then he meant that would not

be dangerous.

QNow, was it something, 1074, something like that shipyard

insulators studied?

A 1070. Add a four. It doesn't make a difference.

QAt this time, calcium silicate he reported on the kinds of

products that were used in the shipyards, and he did not

report on calcium silicate in the Drinker study, is that

correct?

AI don't think he could have. I don't think it was in commercial

use in the shipyards yet at that time.

For the purpose of his studies, his studies

published in '46, so it must have been concluded maybe

in 1944, because it took about a year to get anything

published then during wartime.

QHe does comment on the kind of products and one product he

identifies is asbestos blankets made out of amosite?

AYes.
 95

QAnd another product he identifies is a product that is sometimes

referred to as 85 percent mag.?

AYes, sir.

QOr magnesium carbonate that has 15 percent asbestos in it?

AYes, sir.

QNow, from the time that Professor Drinker published his study

in 1946 until 1964, when an industrial hygienist by the

name of William Marr published an article on shipyard

workers in Long Beach, California, there were no criticisms

of Dr. Drinker's conclusion in the American literature?

ACriticism, yeah. He wasn't a doctor; he was an engineer, but

apart from that, he was never a doctor.

QI'm sorry. Did I say doctor? I meant to say professor.

AEngineer/professor. He was a professor, chairman of a

department, but he was not a medical doctor.

QThere were other medical physicians who were co-authors of

Dr. Drinker.

AIn that paper, three physicians. Fleischer, DallaValle and

some other name.

QViles and Gade?

AYeah. No, you're correct. There was nothing published

critical of what was in that article. It's actually a

very good article.

QAnd, by the way, when Mr. Marr, because he was not a physician,
 96

the industrial hygienist at Long Beach naval shipyard

published an article saying Drinker's results aren't --

we're getting different results from what Drinker got.

We are finding people get asbestos in Long Beach naval

shipyards. He commented, Mr. Marr did, about how the dust

levels on a time weighted average had been below the five

million particles per cubic foot for his insulators.

AHe may have made that comment, and I think you are right, but

he didn't produce new counts. I could never find in his

papers specific counts comparable to the Fleischer-Drinker

counts. Maybe you have a copy of the paper where he had

some counts, but he gave average and global counts, not

specific things.

MR. SCHACHTMAN: Your Honor, this is what

I have pre-marked as Defendant Exhibit OI-6.

MR. PYLE: Could I have a copy of any

of these?

MR. SCHACHTMAN: I will make sure you have

copies. I don't have them right now.

BY MR. SCHACHTMAN:

QDr. Schepers, what I handed you is the article by Mr. Marr

in 1964 which indicates that Professor Drinker's results

were not unfortunately observed in the Long Beach shipyard

and that he was finding people getting asbestosis, is that

 97

right?

AHe what?

QI'm sorry, you turned around.

AI'm sorry.

QThe article I handed you is the 1964 article by Mr. Marr, which

in some sense criticized Professor Drinker's findings.

AI don't think it criticized it significantly. He commented

on it, but he doesn't produce counts. He gives the sizes

of the particle, but not the numbers.

QWould you look at table 1?

AThat's what I'm looking at.

QAnd would you look under both particles and in fibers?

AYou see, he says particle range in microns. That's not a

measure of numbers; that's a measure of size.

QThat's right.

And then are there not numbers that correspond

to particle, just those sizes in all the little boxes under

that table for each different kind of product that was

generally in use at the Long Beach naval shipyard? Does

he not give the particle and fiber counts?

AYes. Maybe one could interpret it that way, but it's not

anything you can compare with Fleischer-Drinker. It's

not done in the standardized way of a hygienist. It's

a new approach to it.

 98

QThe techniques of industrial hygiene had changed?

AYeah, different.

QFleischer-Drinker was using, compared to what we have today,

relatively crude measuring devices?

ARight.

QDr. Schepers, in 1953 a physician by the name of Dr. Harriet

Hardy published an issue on asbestos and health.

AYes.

QThat was in the American Journal of Medicine?

AYes.

QAnd you knew Dr. Hardy --

AYes.

Q-- back in the '50's?

AI did.

QShe's not terribly well these days I understand.

AWell, she's pretty old, you know. Old people are just old.

They're not sick or anything; they're just old.

QI am working on that.

AShe had a brain tumor, so I think you could count that as a

significant problem.

QMore than just getting old.

AYes.

QBut back in the 1950's Dr. Hardy was certainly a very active

and outspoken woman in occupational medicine?

 99

AThat's how I knew her.

QAnd she was one of the chief researchers at the Massachusetts

Institute of Technology, is that right?

ACorrect.

QAnd she in 1953, with some other physicians, published an

article in which they stated that experience had shown

that five million particles of asbestos per cubic foot

was generally a safe working environment.

AThat's the way, words she used.

QNow, that same year that Dr. Hardy published that article,

there was an article published by two British physicians,

Sir -- they weren't Sir then. They weren't yet knighted

by the Queen of England, but they -- one was Austin

Bradford-Hill and the other was Richard Doll?

AYes.

QAre you familiar with the article I am talking about?

AYes.

QAnd they did a study of physicians who smoked cigarettes or

pipes or cigars?

ARight.

QAnd it was one of the decisive articles and studies establishing

that tobacco smoking caused lung cancer, is that right?

AI think you could say it contributed significantly to the fact

had begun to be known before that.

 100

QIn fact --

AThey just counted. You could put a number on it. They put

a number on it, but the fact was known. They added the

number.

QWell, there was certainly people in the United States who were

resisting that conclusion, were they not?

AMaybe.

QAnd in 1950, Dr. Ernst Winder also published a study on this

side of the Atlantic also showing that there was an

increased prevalence of lung cancer among cigarette

smokers?

AYes.

QNow, when you go back and you look at some of the earlier

studies, whether they be Dr. Merewether's study in 1945

or some of these case reports of asbestosis and lung cancer

done by a pathologist, Homburger and Angrist back in the

1940's, there were generally no smoking histories because

they weren't looking at that issue, right?

AThat's correct.

QYou mentioned that in 1946 the American Conference of

Governmental Hygienists issued its first recommendation

of MAC or maximum allowable concentration for asbestos,

is that right?

AYes.
 101

QAnd that recommendation, whether the ACGIH wanted it to be

so or not, was ultimately adopted by many states to be

the law to be applied in the work places in their states?

AAt least thirty of the states did so.

QAnd certainly New Jersey was one such state?

AYes, sir.

QAnd Pennsylvania was one such state?

A Yes, sir.

QAnd Ohio was one such state?

AYes.

QJumping ahead to 1954 -- I apologize for going all around on

the time scale, but in 1954 you came to this country with

the intent to stay?

ARight.

QAs opposed to your first visit, right?

ARight.

QAnd you had been invited to become the Director of the Saranac

Lake Laboratory?

ARight.

QAnd you said that had a reputation in the United States and

in the northern hemisphere, but it had an international

reputation as well?

AYes.

QAnd that reputation, although initially founded in the area

 102

of tuberculosis research, had spread to the area of

occupational lung disease research?

AYes.

QWhen you became the Medical Director in 1954, one of your jobs,

one of your responsibilities, was to examine and test

various products that were submitted to the laboratory

to see what kind of dust characteristics they had and to

see whether they were hazardous, is that right?

ARight.

QAnd your mode of proceeding would be to receive the products,

to test them, evaluate them and to report to the company

on your findings, is that right?

ARight.

QNow, that pretty much had been done by your predecessors in

the case of Owens-Illinois?

AThe Kaylo, yes.

QKaylo. But when you got there, you found you had not yet met

Dr. Shook or Mr. Hazard. They came to you, introduced

themselves, is that right?

ARight.

QAnd they told you that this process had taken place before

your arrival, but now they would like to see the results

of that test or that study published in the medical

literature?
 103

ARight.

QYou had to then become familiar with what happened at Saranac

during Dr. Gardner's and Dr. Vorwald's leadership of the

laboratory?

ACorrect.

QWith respect to Kaylo, is that right?

ACorrect.

QAnd you understood that when OI submitted its product to the

laboratory it was a unique product for its time?

AYes, it was.

QI think you mentioned on direct examination that the calcium

silicate product was different from the magnesium products

and the loose amosite blankets that had been previously

used as insulation in the United States, is that right?

AYes.

QThe tests that were commissioned by Owens-Illinois were on

experimental animals -- guinea pigs, hamsters and rats?

ARight.

QNow, those were the standard animals that were used for those

kinds of laboratory tests?

ARight.

QAnd the kind of dust study that was initially designed by Dr.

Gardner, was it --

A Yes.
 104

Q-- had become almost a standard at the laboratory to help

promote a reputation of the laboratory for doing this kind

of testing?

ARight.

QAnd it was done on animals with the understanding that the

findings would have some translatability to the human

experience, is that right?

ARight.

QI think you have told me before that roughly speaking, one

month of an experimental animal's life is about one year

of a human's life at the same exposure?

ACorrect.

QBy the way, when Dr. Shook and Mr. Hazard came to you slides

had already been cut and reviewed, but you were certainly

encouraged to cut additional slides from the lung tissue.

AYes, I made all new slides.

QAnd Dr. Shook and Mr. Hazard also asked you to review the work

that had been previously done, is that right?

AYes.

QAnd it was their intent that the result be widely disseminated

in the medical and industrial community, is that right?

AI think so. That's how I interpreted their statements to me.

QNow, before you actually published that work, you presented

that paper almost verbatim. It was almost the same paper

 105

that was ultimately published in the medical literature,

is that right?

AYes.

QAnd Dr. Shook and Dr. Hazard were in attendance at this seventh

Saranac Symposium.

I'm sorry, was it the eighth?

ASeventh.

QThe seventh?

ASeventh. No, that was the eighth. The seventh was the one,

was in '50 --

QTwo?

A1952.

QBut the one in 1955 was attended by Mr. Hazard and Dr. Shook?

AYes.

QAnd they heard your presentation and they didn't get cold feet.

They didn't say, "No, Dr. Schepers, don't publish that

article," did they?

ANo.

QDid Owens-Illinois put any constraints upon you in discussing

that data with the medical community, the entire world?

AOnly that I shouldn't use the term Kaylo. They wanted me to

call it hydrous calcium silicate.

QAnd as we have discussed before, Dr. Schepers, that's really

very similar, for instance, the way when a doctor reports

 106

on a clinical drug trial, he doesn't use the brand name

of a drug; he uses the generic name of the drug, is that

right?

ARight. It is the generic term, not the specific term.

QAnd calcium silicate was a generic reference?

ARight.

QTo the pipe covering made in a certain way?

AYes.

QNow, the raw ingredients of calcium silicate were sand, which

is silica mostly, right?

AYes.

QLime from crushed limestone?

ARight.

QDiatomaceous earth and asbestos?

AYes.

QNow, certainly the sand, silica, sand, diatomaceous earth and

asbestos were known by the laboratory. They were known

by the people at Owens-Illinois. They were known by the

governmental agencies all to produce potential hazards

if they resulted in excessive levels in the work place.

AIf inhaled in a small enough particle size.

QAnd in large enough concentrations?

ARight.

QAnd the question that was before the House when Owens-Illinois
 107

submitted its product was whether the way they mixed these

things together and subjected them to high heat and high

pressure changed them chemically and physically, the

nature, the makeup of the product so that it no longer

was a potential?

AYes.

QAnd what they found was that the silica, which is the silica

dioxide and the lime under heat and pressure caused a

chemical reaction to form a calcium silicate, is that

right?

ARight.

QAnd that releases carbon dioxide which forms little bubbles

in the slurry which then harden into those insulation

hamsters you talked about?

ARight.

QAnd the asbestos was believed necessary to form a binder or

a hinge that would not fall apart under the high heat which

the product was intended to be used with?

AYes. That seemed to be, to tie those little bubbles together.

QAnd it was sometimes referred to as a hinge in the product?

AYes.

QNow, Dr. Shook and Mr. Hazard when they came to you and discussed

the matter of the Saranac test on the Owens-Illinois Kaylo

were very cooperative with you, is that right?

 108

AOh, yes.

QAnd I think we talked about how they put no constraints upon

you, but you also came to have the highest regard for Mr.

Hazard not just as a person, but for his technical expertise

in the area of hygiene?

AYes.

QAnd although Dr. Shook was not similarly a leader in his field,

he was certainly a well-respected physician who was on

the editorial board of a major journal dealing with

industrial hygiene?

AThis journal, he was not on this board at the time this was

published, but later when I got to know him.

QI think the 1952 one?

AYes.

QHe was not the chief editor because the chief editor was the

same Professor Drinker who had written the 1946 study,

is that right?

ARight.

QIn your dealings with Mr. Shook -- excuse me -- Mr. Hazard

and Dr. Shook, you found them to be honest and forthright?

AYes.

QAnd the journal that you published in was a specialty journal

of the American Medical Association section on

occupational disease, is that right?

 109

AYes.

QIt was widely circulated in the 1950's?

AYes.

QThe journal went out primarily to physicians, industrial

hygienists both at companies, at universities, who were

interested in the problem of industrial health and

occupational medicine, is that right?

AI think it also went to lawyers.

QProbably it did.

AYes.

QFor instance, if it went to Merewether it went to a lawyer.

AYes.

QBy the way, that journal later became known as the Archives

of Environmental Health?

AYes. They changed the name.

QLet me take a look at that article with you.

Excuse me, Your Honor.

Dr. Schepers, I'm going to hand you what I'm

going to mark as Defendant's Exhibit OI-7. Do you

recognize that as the article that you and your colleagues

at Saranac Lake published in 1955 on hydrous calcium

silicate?

AYes, sir.

QWould you turn to the second -- well, let me stop.

 110

Before I direct your attention to anything, the

animals in the experiment were dusted in these chambers

you described at basically two levels. One was about a

hundred twenty million particles per cubic foot and another

was over two hundred million particles per cubic foot,

is that right?

ARight. Two phases of the study.

QAnd the higher phase was to look at the effect on pure

tuberculosis in these animals, is that right?

ARight.

QI'm going to put a little squiggle to mean about one twenty

million particles per cubic foot and the other one was

over two hundred million particles per cubic foot.

ARight.

QAnd these animals were being exposed to five and a half days

a week for eight hours a day, is that right?

AEight hours a day, five days, and then --

QHalf days Saturday?

AFour hours Saturday.

QBut these animals were not being removed from their cages on

Sunday, so they basically stayed in those rooms with the

dust in their cage seven days a week, twenty-four hours

a day?

AYeah. Most of the dust floated down to the floor and was
 111

vacuumed out in the daily -- some of it remained on the

cages that remained there.

QThese were furry animals and they would get dust on their fur?

ASome of it would be on their fur.

QNow, if we could look at page 349 in the left-hand column.

AThirty-nine?

QI'm sorry, 349.

AForty-nine.

QAnd the discussion --

AOkay.

QAnd the discussion actually begins on 348 under Experimental

Method.

AYes.

QAnd it carries over and describes the physical setup of the

test, is that right?

ARight.

QIt describes how the atmospheric suspension of the dust was

created?

AYes.

QAnd that was done by the action of a paddle that rotated to

keep the dust suspended, is that right?

ARight.

QNow, the first full sentence on page 349 reads as follows:

"The dust cloud generated in this manner floated out into

 112

the room where it was maintained for eight hours on five

days of the week and for four hours on Saturdays."

ARight.

QDid I read that correctly?

AYes.

QAnd, Dr. Schepers, am I correct that nowhere in this article

do you describe the chrysotile components or the asbestos

components of calcium silicate insulation as a toxic

substance?

AI wouldn't use the word toxic. Toxic is a special definition

in medical terms.

For instance, in this paper here, you'll find

they classified dust as toxic dust and then dust as mineral

dust, for instance.

And also in the industrial hygiene, the ACGIH

report you will find they find it was classified as toxic

dust.

For instance, toxic dust would be -- lead would

be toxic dust. You'd be wrong to use the word toxic from

a technical point or medical point of view for asbestos,

because it is not soluble. So you can't hit a kidney,

can't be dissolved, can't get into the brain. It acts

mechanically.

QThere was an accepted usage of the word toxic in the medical

 113

sense. That would not include asbestos?

ARight. Now, that is medical-technical. I don't know what

the legal part of it may be. Lawyers use different terms.

I would not use the word toxic for asbestos.

QAnd, in fact, later on in your career, in 1964, you published

an article in which you specifically said that asbestos

could not be considered toxic because it did not cause

systemic poisoning.

ARight.

QDr. Schepers, when you started at the Saranac Laboratory there

were -- and I mean as Director of the laboratory -- there

were literally thousands of different asbestos-containing

products in use in the United States.

AYes, I think so.

QAnd there were many different kinds of insulation products?

AYes.

QAnd we've already mentioned two; amosite blankets and also

the 85 percent magnesium?

AYes.

QBut there were other kinds such as spray on asbestos products,

is that right?

AYes.

QThere were also asbestos cements?

AYes.
 114

QWe talked also about the mattresses that were stuffed with

a hundred percent asbestos that were used around boilers

and stuff like that?

AThat was amosite mattresses.

QWhen you got to the United States you were aware generally

in 1954 that asbestos was being specified specifically

for the use in insulation products that were to be used

by the United States Navy in its navy yards, is that right?

AThey specified a formulation.

In other words, you said for pipe covering

insulation in the Navy in battleships. Mixtures of

asbestos had to be used in certain ratios. Some with

chrysotile, some with amosite, and that was specifically

designed because of the wetness of things on board a ship,

and amosite is not wettable.

So if a wave washed across the ship, the ship

wouldn't suddenly sink because of the extra tons of water

that would be absorbed into the insulation on the ship

because a ship, a destroyer, might have several thousand

tons of asbestos in it. If that got wet, it would become

two or three times, several thousand, and that would just

make the ship sink or make it lose its buoyancy so it

couldn't carry such armature and ammunition.

QIn fact, the United States government, through the General

 115

Services Administration, sold amosite asbestos into the

1960's and probably into the 1970's, is that right?

AYes, that was the reason.

QNow, the calcium silicate products that we've been referring

to as Kaylo was a pre-molded product cut to three or four

foot lengths to a specific internal-outside diameter, is

that right?

AYes.

QOne of the ways you believed it was different from the 85 percent

magnesium was that it was easier to apply and it was

intended to keep dust down, over 85 percent magnesium?

AYes.

QAnd that's because the mag. or the magnesia type products were

more friable. They gave off more dust in normal cutting

and usage, is that right?

AYes.

QAt the time that Owens-Illinois was making calcium silicate

in the early 1950's, anyway, you believed at that time

it was a unique product for Owens-Illinois that there were

no competitors pretty much in calcium silicate, is that

correct?

AYes. Nobody else was making it.

QThe techniques that Saranac Lake used to test these animals

at different dust levels were believed by you to be

 116

generally the best available techniques for testing such

a product at that time?

AYes.

QAnd you thought it was a commendable thing for Owens-Illinois

to do, to test its product at Saranac Lake?

AI thought so.

QIn fact, you recommended and urged other companies to do just

the same kind of thing?

ARight.

QBut to your knowledge, at least up through 1955 no other company

had ever gotten involved in marketing an asbestos

insulation product, actually did just that test itself

and insisted on the publication of the test of its products?

ANo, no. No, no. That's not correct.

The Saranac Laboratory did major studies for

companies that marketed their products.

For instance, the brake shoes that were all on

automobiles and trucks and tanks and clutch plates were

all studied in great detail for Johns-Manville, Raybestos,

U.S. Gypsum and all those companies that were making those

products.

And those were studies which were commenced in

1933 and carried through to almost, to the time when I

came there.
 117

The uniqueness of Kaylo is that it was the first

insulation product shaped, insulation product that had

been studied by Saranac Laboratory.

The studies that Dr. Gardner did on asbestos

per se were related to magnesium, and there were some

dilatory studies, but not major inhalation studies of

magnesium compound of the Saranac Laboratory.

But no companies had come as you had correctly

said to Saranac Laboratory saying, "We are company X, Y,

Z, and we make magnesium for 85 percent. Can you study

it for us?"

No, they didn't do that. Kaylo is the first

one we studied.

QBecause no company ever did that, no company ever had such

a study published in the medical literature --

AThat is correct.

QBy the way, Owens-Illinois used this calcium silicate

formulation for different kinds of products, and we've

talked until now really only about pre-molded pipe covering

and block, but in fact, they used this kind of product

for door cores and roof tiles, is that right?

AYou shouldn't say it that way. You should say the company

made a variety of anhydrous calcium silicate- based

products in different ways, in different shapes and for

 118

different purposes, and the asbestos content or other

content of those products differed greatly from the Kaylo

that we studied.

Some of them were also called Kaylo, but they

were made from amosite and some of them had forty percent

amosite in them. That never got studied, because after

Saranac had demonstrated to the company that even what

was considered to be a low, low injurious asbestos such

as fifteen percent chrysotile, would prove hazardous.

The presumption was that all of them would be hazardous

because it was known by then that amosite or crocidolite

were much more dangerous, and it was just common sense

to say if the product contained forty percent, it would

be more dangerous than fifteen percent.

QThe door cores, we understand they were sandwiched between

layers of sheet metal and they use schools and hospitals

to be firebricks. They were fire doors, is that right?

AYeah.

QWere you aware of the actual usage of door cores?

AThat product should be tested for the benefit of the company

making the sheet metal sandwich, and it should be a warning

on it saying, "Don't cut it with a saw because then you

are going to release all the asbestos."

QDo you know anything about how the doors were put together?
 119

AI have never seen a study of that material.

QAll right.

And, by the way, the studies, the study that

was done at Saranac on the hundred and twenty million

particles per cubic foot and then the second phase at the

two hundred million particles per cubic foot, we can agree

that was grossly in excess of what the recommended

threshold limit value was for asbestos during those years,

is that right?

ANo, not a whole lot, because you see that's a hundred twenty

million particles per cubic foot, and of that only six

percent is asbestos.

So the actual asbestos content was twenty

percent, and if your theory that the twenty, twenty million

particles per cubic foot, you see if it is --

QI didn't say anything about that. I'd like to.

AThe asbestos is fifteen percent, then it is one-sixth of that,

so it is only twenty million particles per cubic foot.

QSo it is either six?

AIf your theory is correct, we are talking about asbestos that's

pure asbestos, then it was only six times pure asbestos.

QLet me see if I can understand what you are saying.

It is either six times or twenty-four times the

threshold limit value depending on how you interpret --

 120

AYes.

Q-- the value? Is that what you are saying?

AYes.

QOn a continuous basis, is that right?

AOkay.

QOne of the differences in the products that Owens-Illinois

had, they had a low density and a heavy density, the Kaylo

formation, is that right?

AYes.

QAnd it was your understanding that the low density was primarily

chrysotile, and it was the heavy density product that used

more amosite in it, is that right?

AYes.

QBy the way, when you became involved in your discussions with

Dr. Shook and Mr. Hazard, you realized that these people

were never members of the Asbestos Textile Industry because

they didn't make any textiles?

AThat's correct.

QThe Saranac study had been conducted over years, and in the

first several reports where animals were examined,

sacrificed and examined after a year and two years and

after thirty months Dr. Gardner, who was the original

researcher, did not find significant asbestosis. It was

only after thirty-six months?

 121

ARight. He got fooled.

QI understand that.

ABy the slow evolution.

Now, part of that is due to the fact he was using

very heavy volumes compared to his old experiments where

the average dust count was up one hundred percent asbestos,

was somewhere in I think the hundred and thirty --

thirty-eight percent, thirty-eight million particles per

cubic foot.

QThe point, though, was that Dr. Gardner certainly after two

years -- and Dr. Gardner was certainly a pathologist with

a world-wide reputation -- was not finding asbestosis in

the experimental animals, is that right?

AHe did not, yes. That was what his report said.

QNow, you did not conclude in the Saranac Lake studies or from

your review of those studies that Kaylo was a carcinogen?

ACouldn't do so. Didn't find any cancers.

QAnd you didn't mention something you referred to as the first

step towards cancer, the epitheliomazation in terminal

bronchials. That is something that you can see and you

can have the epitheliomazation and then it can go away.

ARight. No, it wouldn't go away, but it won't necessarily go

on to cancer.

QThat's right. And it is not cancer?

 122

ANo, you shouldn't call it cancer.

QBy the way, diatomaceous earth also causes pneumoconiosis.

Diatomaceous earth is one of the ingredients of Kaylo that

also causes pneumoconiosis.

AYes.

QAnd the silica causes pneumoconiosis?

ADiatomaceous earth depends on its molecular state. In its

natural form, it doesn't produce pneumoconiosis, but if

you heat calcium silicate to about twelve hundred degrees,

then it becomes a very potently pneumoconiosis-inducing

agent.

QAnd that's because the silica is transformed into a

cristobalite, a morphological variant of silica which is

very potent for causing silicosis?

ARight.

QSo it was certainly a reasonable fear that OI had that the

diatomaceous earth if you subjected it to great heats and

pressure might turn into a very potent cause of silicosis?

ARight.

QAnd at that time you talked about pneumoconiosis and

pneumoconiosis was a silicosis that was thought of as an

encouraging tuberculosis infection in people.

AYes.

QNow, when you reviewed the various documents and the

 123

correspondence back and forth between Owens-Illinois and

Saranac Laboratory, you saw that Saranac Laboratory made

some very practical recommendations to Owens-Illinois for

its management of its plant in New Jersey?

AYes.

QAnd it certainly never told Owens-Illinois to shut those plants

down and stop making Kaylo?

ANo, that wouldn't have been Saranac Laboratory's job. The

job would be to see if we can keep you in business. We'd

be foolish to shut them down because you get enough, further

money from them.

QWell, that's fair. But, if they thought that it could not

be controlled as physicians, they certainly would have

a duty to say, "There's just no way you can do this safely

and you better get out of this business."

AWell, that is exactly what the Saranac Laboratory said. They

said you can only use this material with very strict

limitations. Namely, control the dust wherever the

material is used because that was the proposition that

the company had posed to the laboratory when they gave

the material to the laboratory to study.

Namely, tell us what will this do to our factory

employees and what will it do to the end customer.

Saranac Lake said, "Control the dust."

 124

QIn fact, it said specifically, "Here are the recommendations

of the American Conference of Governmental Industrial

Hygienists and here are the provisions of the New Jersey

State Code, and you better follow them."

AWe said adhere to those, and we gave them a stricter standard,

because we said count the total dust, keep it at five

million, below five million, and count the asbestos and

keep it below one million.

QWhen the Saranac Lake Laboratories sent out the interim report

--

AYes, sir.

QNot the final report, but the next to last report --

AYes.

Q-- it specifically said follow the recommendations of the ACGIH

and the New Jersey Code and did it not set out in a table

asbestos, five million particles per cubic foot and a total

dust of fifty million particles per cubic foot?

AThat may have been somewhere, but when I came there and when

I was part of the show, it was five million particles of

total dust, one million for asbestos.

QWhen you were there, but I'm talking now about the way --

AI don't know after Dr. Vorwald --

QThe way the interim report went to Owens-Illinois?

AYeah.
 125

QAnd in your discussion with Owens-Illinois you told them that

if they followed those recommendations, the

recommendations that you were making a five million

particles per cubic foot --

AYeah.

Q-- that would be a reasonably safe working environment for

their employees?

AThat's correct.

QAnd that recommendation was certainly well known to let's say

the United States government, the Bureau of Medicine and

Surgery?

AYes.

QWhich was in charge of running the shipyards, is that right?

AYes.

QAnd it was certainly well known, had to be known by employers

who were charged with the law, knowing the law in Ohio,

in Pennsylvania and New Jersey where those recommendations

had been promulgated as regulations which applied to every

place of employment?

AYou mean the ACGIH?

QACGIH recommendations?

AYes, I would agree with that.

QNow, the reason you told Owens-Illinois that five million

particles per cubic foot of air level would constitute

 126

a reasonably safe working environment for its employees

and for and/or users, too, was that you believed that at

that time?

AYes, sir.

QAnd there were any number of eminent scientists in the field

who believed that as well at that time?

AYes.

QAnd I believe that you retained that belief well into the

1960's?

AYes.

QYou believed that Dr. Shook and Dr. Hazard were genuinely

interested in the health of their employees?

AYes.

QAnd you didn't think they were the kind of people who would

intentionally put out a product that would hurt people?

AI wouldn't have thought about that along those lines. They

were the scientist people. The people that would be

selling the product would be other echelons of the company

-- the sales people and the manufacturing staff.

QFrom your dealings with them --

ADr. Shook's role would have been if they asked him should we

label this material as dangerous, then you would have had

to say and if they asked Mr. Hazard he would have had to

say put a label like this on this saying how much tolerance,
 127

what the tolerance level is.

QNow, you know that Mr. Hazard is ill and cannot come to testify,

and his testimony has been heard by deposition?

AHe would be quite a lot older than I am now, because he was

about fifty when I got there.

QAnd you know Dr. Shook is dead?

ADr. Shook died some time ago.

QAnd you know that Dr. Vorwald, your predecessor, died in 1976?

ARight.

QBy the way, back in the 1950's when you looked at the Kaylo,

it was your understanding that the inert ingredients,

calcium silicate, would have a lessening effect of it would

dilute the exposure for people who used Kaylo, is that

right?

ACorrect.

QAnd when you were studying Kaylo, it was your opinion that

because of this lessening effect and dilution that you

would not expect a worker in an average work lifetime to

develop disabling asbestosis from using calcium silicate

products such as Kaylo?

AIf they adhered to the numbers we gave them.

QBut, of course, in the work place the situation was often more

complex because not only would Owens-Illinois products

be used, but there might be other products that would be

 128

used alongside of it that might be dustier, is that right?

ARight.

QOne of the other recommendations that Saranac Lake made to

Owens-Illinois was to make sure that its plant workers

had routine chest x-rays?

AYes.

QAnd that was in effect even before you got to Saranac Lake?

ARight. Dr. Vorwald started that.

QAnd then when you took over the Directorship, you took over

the practice of reading chest films for Owens-Illinois?

ACorrect.

QAnd even after you left and the laboratory closed in 1957,

you went to the University of Michigan at that time, is

that right?

ACorrect.

QYou continued for a while to read films for Owens-Illinois?

AYes, sir.

QAnd did not stop until you went to the Dupont Corporation in

1958?

AYes.

QAnd that was not because Owens-Illinois didn't want you to

stop reading them any more, but Dupont thought it might

be a conflict of interest for you to read them?

AThe lawyers of the Dupont Company felt there was a conflict

 129

of interest, and at a certain point they said I should

stop because they were competitors.

QBy the way, you were at Dupont from 1958 to 1963?

AI think those are the years.

QI will come back to it.

During the time that you reviewed the chest films

for Owens-Illinois you did not see any radiographic

manifestations of asbestosis from that plant?

ANo, not yet.

QAnd you also mentioned that Saranac Laboratory had been invited

into the Owens-Illinois plant to do dust counting, is that

right?

ARight. They, eighteen went from us to them.

QAnd Mr. Hazard himself was an expert with quite a reputation

of his own in the techniques of dust counting, is that

right?

AYes.

QI believe he held a patent along with Dr. or Professor Drinker

on dust counting devices?

AYes.

QAlso during that time Owens-Illinois, like other places of

employment in New Jersey, was subject to inspections from

the State Department of Health, is that right?

AYes.
 130

QAnd Mr. Lynn Schall, do you know Mr. Schall, who was an

industrial hygienist for the State of New Jersey?

AYes, I knew Schall, Dr. Schall.

QDr. Schall gave a presentation in 1964, New York?

AYes.

QAnd he was one of the people who also inspected the

Owens-Illinois plant, is that right?

AYes.

THE COURT: We are going to take a

ten-minute recess, Members of the Jury.

(Thereupon, a recess was had at that time.)

3:42 P.M.

THE COURT: Mr. Schachtman.

MR. SCHACHTMAN: Thank you, Your Honor.

BY MR. SCHACHTMAN:

QDr. Schepers, about the same time that you were in the process

of reviewing Dr. Gardner's experiments, you were also

thinking about undertaking your own animal experiments

on asbestos and beryllium sulfate?

AYes.

QAnd in 1954 you sought funding for those experiments by going

to the American Cancer Society for a grant?

ACorrect.

QAnd I have here a copy of your grant application.

 131

I have an abundance of caution. I will

call it OI-8.

Dr. Schepers, do you recognize what I've given

you which is marked as OI-8 as a copy of the grant

application in cancer research that you submitted to the

National Research Council which was acting on behalf of

the American Cancer Society which was the granting

organization?

AYes. This is a copy of that.

QAnd you ultimately did get grant money from the American Cancer

Society?

AYes.

QAnd you did fund those experiments and you did those

experiments, right?

AYes.

QNow, in 1954, September, 1954, you cited on the second page

at the very top of the page, there are four things you

noted would be significant in cancer research and the

relation of anticipated results to more general problems

in this field, and these are the four things you are telling

the American Cancer Society for reasons, as reasons to

fund you, is that right?

A(Witness indicating affirmatively.)

QAnd number three reason is as follows: "Asbestos, if proven

 132

carcinogenic, would because of its physical

characteristics provide an ideal mechanism whereby to

focalize experimental lung cancer."

Did I read that correctly?

AYes.

QAnd if you could turn to Section 4 in its Appendix, 4(c) which

is entitled -- it is on -- there is a Roman numeral IV

at the very bottom of the page, Doctor. But the heading

at the top of that page is Significance in Cancer Research

and the Relation of Anticipated Results to More General

Problems in This Field."

AOkay.

QAll right.

Now, the very top of the page the text reads,

"The primary purpose of this proposed experiment is to

probe the very vexed question of the relationship of

asbestos dust inhalation to the increasing discovery of

lung cancer in man."

Did I read that correctly?

AYes.

Q"Should a significant statistical result be obtained from this

study on rodents combined with the results of previous

animal studies on asbestos conducted by The Saranac

Laboratory, new evidence either for or against the

 133

alleged role of asbestos in causing human lung cancer

should be produced."

AYes.

QNow, in the second paragraph you note that asbestos is used

extensively, all over the world, in many different kinds

of products, even cigarette filters.

AYes.

QAnd were you referring to the use of blue asbestos in the Kent

micronite filters in the 1950's?

ADid I what?

QWere you referring to the use of blue asbestos in the filters

of the Kent micronite filters in the 1950's when you

mentioned that even cigarette filters are made from

asbestos?

AI think it was Kent. I think, I don't know, very little about

cigarettes, but I think it was the Kent product that had

the asbestos filter to absorb the carcinogen.

QDid you ever do any testing on that cigarette filter?

ADid I make any?

QDid you ever do any testing on that Kent cigarette filter?

ANo, I never got the opportunity. I think they withdrew the

product, so that ended it.

QNow, in the third paragraph, Dr. Schepers, it says as follows:

"Should it be proven that asbestos can provoke lung

 134

cancer, the efforts of industrial hygiene engineers will

have to be intensified to insure ever lower dust levels

than are currently considered compatible with the absence

of risk of asbestosis."

And then in the very last paragraph you write

as follows: "Should the contrary finding be obtained,

there should be further reassurance to asbestos

industrialists and employees."

Is that right?

AYes.

MR. PYLE: Can I see that since you

have a copy, if you are done with it?

BY MR. SCHACHTMAN:

QNow, in later reports you referred back to your beryllium and

asbestos studies as not being able to show that asbestos

was a carcinogen in that study.

AIt wasn't a carcinogen between the two, but the study was not

a study of the carcinogenicity. The study was one of a

co-carcinogenicity to see if in a time span below the

latency for cancer, cancer would appear if you stuck

beryllium into the experiment as well as the asbestos.

So that the experiment was kept down to below

six months of exposure to each substance, which we knew

by then would be too short a time, and it was terminated

 135

at eighteen months, which we knew would be too soon for

cancer, but if cancer had appeared in excess quantity in

those eighteen months time, then it would be

co-carcinogenicity.

QDr. Schepers, in later reports of your own, did you not refer

to these studies as even suggesting that they might show

an anti-carcinogen effect of the asbestos in this

co-carcinogenicity study?

ARight, that was found. The two substances acted against one

another.

In other words, beryllium was so toxic, using

toxic in its correct sense, that it killed cancer cells

that asbestos was inducing and that stopped the cancer.

QDr. Schepers, I am going to show you what I'll mark as

Defendant's Exhibit OI-9, a copy of Dr. Lynch's 1955

article in the Southern Medical Journal.

And on the first full page of the article, the

right-hand column, Dr. Lynch reviews some of the statistics

that you referred to in your direct examination, and he

states as follows: "At the present moment the available

evidence is not conclusive as to whether asbestosis may

play an etiological role in the occurrence of carcinoma

of the lung."

Did I read that correctly?

 136

AYou read it the way he wrote it, yes.

QAnd then he goes on to say that does allay the suspicion, chiefly

from statistical evidence, that there may be a cause and

effect relationship."

That's what he says?

AYes.

QNow, he's in his discussion there, he is talking about

asbestosis and lung cancer?

ARight. That's the part I don't understand because carcinosis

has nothing to do with asbestosis. Carcinosis is the

mechanism by which cancer is caused, not the fact.

QTo the extent you believed in the 1950's that there was a lung

cancer risk, you believed that risk was tied to the risk

of asbestosis?

AYes.

QAnd to the extent that the TLV protected against asbestosis,

to that extent, in the view of many would protect against

lung cancer?

AThat was the theory.

QNow, in 1956 the Manufacturing Chemists Association came up

with their fourth revision of their guide book or warning

labels, and I have the whole book. I'm going to ask you

whether this is the guide book you are talking about that

you had at your disposal when you went to Dupont in 1958.

 137

AYes. This is the modernized version.

QWould you take a moment to make sure it looks like what you

had when you were at Dupont?

AIt is similar to it, yes.

QThere are specific warning labels in the Appendix for different

substances that --

A Right.

Q-- that are being recommended, is that right?

ARight. Should be, yes.

QAnd there is no warning label there for asbestos, is there?

ADoesn't seem like there is. No, there is no, none being

elaborated.

QAll right.

Now, when you were at Dupont, Dupont was actually

purchasing oh, about one hundred tons of asbestos annually

for use in its own products, is that right?

AThat's correct. I didn't know that, but I learned that later.

MR. HAUSHALTER: Doctor, could you speak up

just a little bit, please? I'm having difficulty.

THE WITNESS: I'm sorry. I did not know

that then, but I learned that later.

MR. HAUSHALTER: Dupont, you did not know?

THE COURT: Doctor, could you sit

forward and talk into that microphone? I don't think the

 138

Jury can hear you.

BY MR. SCHACHTMAN:

QYour job at Dupont was as Chief Pathologist at the Haskell

Laboratory?

AYes.

QAnd you had no say about whether Dupont should have any warning

label on its asbestos-containing products because, I

guess, you didn't know that they were making asbestos

products?

AIf they asked me, then I would have a say, but I didn't initiate

it because that was not my role.

QIn 1963, you published an article in Diseases of the Chest

entitled Lung Disease Caused by Inorganic and Organic Dust,

is that right?

ARight.

QAnd that was the first time in any of your publications --

and now I'm talking about things that were published in

the medical community -- where you specifically discussed

cancer in connection with asbestos?

ANo, no. In '64.

QThis is '63, mind you.

AIs this '63?

QI am talking about 1963.

AThen that would be, yes.

 139

QAnd let me make a copy.

I'm sorry, Your Honor, I can't keep the numbers

straight. OI-11.

Dr. Schepers, do you recognize that as your 1963

article?

AIf I can find the address, then that would be so, or I mean

the date.

QIf you look at the lower left-hand corner, it identifies it

as a discussion you gave at a fireside chat or something

like that.

AAugust, '63, yeah.

QOkay.

And that is the article you published in 1963?

AYes.

QOn page 136 in the left-hand column you talk about the

complications of asbestosis and you say as follows. I

think there is a little number one circled there.

"Neoplasia occurs in two forms, alveolar and bronchial

carcinoma and pleural mesothelioma. The latter is

particularly common in crocidolite workers and has been

mainly reported from South Africa."

ARight.

QNow, at number two you go on to note and the same left-hand

column of that same page, that neoplasia has not yet been
 140

induced experimentally as a result of asbestos exposure.

ARight.

QNow, in 1964, the United States Department of Health, Education

and Welfare, the Public Health Service, published a book

entitled Occupational Diseases, a guide to the

recognition. And I think you told me before you were

familiar with this, and you wanted to see a copy and I

believe I provided you with a copy of this book.

AYes. Yes, I'm familiar.

QAnd in this book, if I may have it back for a minute, there

are chapters on various different dust diseases of the

lungs?

AYes.

QAnd in the discussion on asbestos, there is the discussion

of asbestosis and then a brief discussion and summary of

the view of the author on lung cancer, and he says as

follows: "Conflicting opinions and differences in

reports makes it difficult to confirm or deny conclusively

a causal relationship between asbestosis and cancer of

the lung or extra pulmonary tissues. However, there is

increasing evidence to suggest that such relationship

exists."

AYes.

QAnd this was something that Mr. Gafafer or Dr. Gafafer, who
 141

was the editor of it with the Division of Occupational

Health, which was the forerunner of the Occupational Safety

and Health Administration, is that right?

AI know this volume as the, you know, as a copy of it from the

Metropolitan Life Insurance Company's brochure.

QI'm sorry.

AThis is a copy of --

QGafafer of Metropolitan Life Insurance Company's brochure

which is identical, but Gafafer had moved from Metropolitan

Life to the government and then it became published under

the government.

Dr. Schepers, wasn't it the other way around,

and I'm going to read to you from the Preface, okay?

There was a pamphlet back in the early 1920's,

but it was the United States Department of Labor that

undertook the revision and updating of this at the request

of the Division of Occupational Health, Public Health

Service.

Isn't that what it says in the Preface?

AWell, that's what it says, but Metropolitan Life gave out the

pamphlets, you see. There are a dozen of the pamphlets

each on every one of these topics, and it was Gafafer's

job to put them together, like he did.

QAnd the section on asbestosis had an author of its own, is

 142

that right? Gafafer was the overall editor, but there

was an author of the section on asbestosis?

AYes, you would have to find that and see where it is. Is it

here?

QI believe so.

Do you recognize the name of Thomas Milby?

AYes.

QAnd he was somebody who at the time was with the Division of

Occupational Health and later went on to California, the

Public Health Service?

AI believe so.

QAnd by the way, at the very end of the section on asbestos

there is a reprint of the ACGIH recommendation for that

year for asbestos.

AI recall that.

QIn 1964, you mentioned your involvement with the American

College of Chest Faculty, and in 1964 as part of your role

on the Committee on Environmental Diseases, you published

a report on asbestosis, is that right?

AYes.

QI'm going to show you, Dr. Schepers, a copy of it, marked OI-13

and ask whether that is the article that appears over your

name and the names of the other members on that committee.

A(Witness indicating affirmatively.)

 143

QAnd in 1964 -- by the way, this is the article where you

discussed the issue of toxicity, and you had said it was

not considered toxic at that time, is that right?

AYes.

QAnd you also noted that the size, flexibility and chemical

attributes of different asbestos fibers have medical

consequences for each of those fibers, is that right?

AYes, sir.

QAnd on page 108 in the left-hand column, Dr.

Schepers --

AYes.

Q-- there is a discussion about safe levels of asbestos dust

exposure.

AYes.

QAnd you wrote at the time, or I should say the committee wrote

at the time as follows: "There is no agreement on safe

limits for asbestos dust and the best evidence for this

is that several governmental agencies have recommended

five million asbestos particles of any length per cubic

foot of air as the maximal allowable concentration, some

industries have adopted as their standard one million

asbestos fibers of five microns and the greater length

per cubic foot, and a third group of hygienists considers

a count of ten million total dust particles per cubic foot

 144

as a safe limit."

Is that right?

ARight.

QAnd there is what you were saying in 1964?

ARight.

QNow, also in 1964 you discussed the issue of lung cancer and

what you call extra pulmonary cancer or cancer outside

the lungs such as --

AYes, mesothelioma. Yes, that should be in the back here.

QOn page 109, Doctor, in the right-hand column, the last

paragraph you wrote, "In the medical literature, there

are more articles favoring a positive relationship between

cancer of the lung and asbestosis than denying it.

While it has been reported that there may be

an enhanced prevalence of pulmonary neoplasia in some

asbestos industry space (e.g. crocidolite or amosite),

or in some locations (e.g. South Africa, England), this

does not appear to apply for the chrysotile industry in

North America.

This comment applies both with respect to

intrapulmonary new growth and to pleural mesothelioma."

Did I read that passage correctly?

AYes, sir.

QAnd, by the way, intrapulmonary means within the lung?

 145

ARight.

QIn 1964 you attended that conference in New York City given

at the New York Academy of Sciences, and I believe you've

told me before that you were to have a more important role

as an organizer, but personal matters made you simply a

discussant person, a person who commented on other people's

papers, is that right?

AYes, sir.

QSo it fell to Dr. Selikoff to be the chairman of that proceeding,

is that right?

ARight.

QAnd Dr. Selikoff was someone you had met in the 1950's who

had come to Saranac Lake because he was interested in

asbestos, is that right?

AYes, sir.

QThere were well over a thousand people who attended this

conference from all over the world?

AYes.

QFormer colleagues of yours from South Africa were in

attendance?

AYes.

ACanadians interested in the problems of asbestos and Quebec

were there, is that right?

AYes.
 146

QThe Fins were there, you said, and anthophyllite is mined in

Finland?

AYes.

QFinland was represented, England was represented?

AYes.

QAnd it was a fairly important conference, was it not?

AI think so.

QAnd the proceedings of that conference, I believe Mr. Pyle

has in his hands holding it up were ultimately published

as a volume of the Annals of the New York Academy of

Sciences?

AYes.

QIn very late 1965, is that right?

ARight.

QThat conference really helped establish Dr. Selikoff's

reputation as a researcher in the area of asbestos as

opposed to other areas?

AIt commenced to do so. There were many people in the conference

that were very critical of him.

QBut, Doctor, his co-author, Dr. Hammond was also there and

Dr. Hammond was the Chief Epidemiologist for the American

Cancer Society, is that right?

AYes, at that time that was his function.

QAnd one of the things you wrote, if I could borrow it, Mr.
 147

Pyle, as you are quoted as saying -- by the way, you are

noted here as being with the Bureau of Labor's Department

of Health.

AYes, sir.

QAnd you note that "my first impression is that there now is

less certainty that asbestos inhalation is associated with

pulmonary neoplasia than there was ten or twenty years

ago. Perhaps this is due to the greatly reduced dust

exposures. Asbestos may, after all, prove to be

carcinogenic only in overwhelming dosage. Thus the high

prevalence of neoplasia which was reported several decades

ago may be a function of the severity of exposure rather

than an indication of a high carcinogenic potency. I

suspect that in final analysis the carcinogenicity of

asbestos will be related as of low order."

Those were your words, is that right?

AYes.

QAnd you go on to say, "Perhaps carcinogenicity will prove to

be a correlate of asbestosis rather than a specific

biological function of the mineral asbestos."

AYes.

MR. PYLE: Do you want to mark that

as an exhibit if you want to quote from it?

MR. SCHACHTMAN: Well, I don't think we need

 148

it as an exhibit.

BY MR. SCHACHTMAN:

QDr. Schepers, at the very end of this volume there are some

important statistics on the amount of blue and brown

asbestos that were coming into the United States at

different times, is that right?

AYes.

QAnd at least through the early 1960's for some years actually

there was more blue asbestos than brown asbestos coming

into the United States?

AWell, there was a specific reason for that. I had caused the

amosite mines to be shut down, and they stayed shut down

for almost ten years, couldn't get back into production

because of the high risk in the mines, the mines at Penge.

QFor instance, in 1960 there was about twenty-five percent more

crocidolite than amosite imported into the United States?

AIt is crocidolite because they didn't have amosite to sell.

QBut by 1962, that relationship changed and again the amosite

was outstripping the crocidolite?

AThey constructed a new, modern facility at Penge and a higher

productive capacity.

QOne of the other things you noted and you are quoted as saying

in that volume is that during your 1949 survey of the

Transvaal, you saw workers who had very thick pleuras.

 149

AYes.

QAnd that later on when you saw your first mesothelioma, you

realized what you were looking at, is that right?

AYes.

QNow, in 1973 you gave a presentation on talc and other fibrous

minerals to the Department of Interior?

AYes.

QAnd at that presentation, Dr. Schepers, I will hand you a copy

as I have marked as OI-13.

MRS. CONDO: Fourteen. I'm sorry.

MR. SCHACHTMAN: Fourteen, excuse me. If

I may change that to 14?

BY MR. SCHACHTMAN:

QIn this presentation you comment on mesothelioma, do you not?

AYes, that's in here somewhere.

QAnd at page 65, if I could turn your attention to that page,

the first full paragraph, I'm talking now about the first

full paragraph that starts the lesions produced.

Do you see that?

AYes.

QThe last sentence of that first full paragraph, Dr. Schepers,

reads as follows: "Proliferation of pleural mesothelium

is a classical sequel to crocidolite exposure which leads

to neoplasia in a high proportion of cases."

 150

AYes.

QAnd at page 70 you start off the page asking the question,

"Is chrysotile a carcinogen?" And you say this is a very

perplexing question.

Is that right?

AYes.

QAnd in the second paragraph of that page you note that,

"Epidemiological surveys of chrysotile workers in Quebec

showed no excess of lung cancer. A review of pleural

mesotheliomatosis in Canada also failed to focus attention

in Quebec or any other center where chrysotile industries

are concentrated."

AYes.

QNow, you've been jumping forward to 1975 as far as your

observations carried you looking at miners and millers,

Canada and South Africa.

You never saw a case of lung cancer in someone

who did not smoke?

AYes.

QAnd I think you said that was particularly true of the miners

in South Africa?

AYes.

QAnd also about that same time in the mid-1970's, you offered

the explanation that the excitement over the possibility

 151

that mesothelioma might be caused by prolonged and severe

exposure to asbestos was dying down.

AYes.

QAnd you offered the explanation that mesothelioma might have

another cause such as a viral infection cause, is that

right?

AI had to think of that.

QAnd one of the things that was part of the excitement was that

in South Africa you identified an alarming prevalence in

two of the asbestos mining areas, but not in all of them?

ARight.

QAnd you saw tumors in white miners, but not in black miners?

ARight.

QAnd you believed that by 1975 the excitement had died down

and there might be no relationship between workers in the

asbestos industries and mesothelioma?

AThat had to be considered on the basis of those data.

QAnd at that time your personal view was that mesothelioma was

an extremely rare disease and that the majority of cases

then being diagnosed as mesothelioma were not even that

disease?

AThat's correct.

QAnd you've also stated that again the mid to late 1970's you

believed that the majority of mesotheliomas occurred

 152

without exposure to asbestos?

AThat was the statistics I had then. It is now totally

different.

QAnd that's an example of how things change?

AYes.

QNow, up until 1979 or so, you were personally unconvinced that

chrysotile could cause mesothelioma?

AI had no case to prove.

This is true about the chrysotile fiber, not

the chrysotile product. You know, in all my writings or

scientific papers, not commercial papers or medical

papers.

And when I refer to these issues as to whether

chrysotile, pure chrysotile, whatever I might call it,

is a carcinogen, then I am talking about two matters that

are entirely different to discussing whether a chrysotile

asbestos product can cause cancer. It is entirely

different.

The causation of cancer is not the same manner

as the mechanism by which cancer is caused.

When you talk about a carcinogen, you are talking

about the mechanism of causation, but you are not talking

about the fact of causation.

You first have to establish the fact of

 153

causation, then you begin to think about the mechanism

of how it is done.

QAll right.

Well, in the late -- I'm sorry, go ahead.

AWe are not talking about a carcinogenicity; I'm trying to

explore mentally whether there is a true mechanism whereby

chrysotile can produce cancer without first producing

another process like asbestosis, and that was the big

issue.

And that was not settled in my mind until 1979

when the first cases of mesothelioma were described in

children under the age of seven who had no asbestosis,

but they got mesothelioma, and they had chrysotile fibers

in their mesothelioma tissue and no other fibers.

QDoctor, I am --

AGetting back to the product, the product is always chrysotile

plus tremolite plus actinolite plus anthophyllite.

Discussions about that and the cancer-producing

capacity of that cannot be expressed in terms of

carcinogenicity because you are dealing with a mixed

variable that for one batch of the material might have

two percent tremolite and one percent actinolite. Another

batch of material might have five or seven, so that is

not scientific speaking.

 154

You can only limit your conclusion to the product

causing it, but you can't speak of the mechanism.

QDr. Schepers, were you talking science to the Department of

Interior in 1973 in your presentation?

AThat was what I was talking about, the mechanism.

QI understand, but were you attempting to be scientific when

you were speaking there?

AYes, I was trying to be scientific.

QAnd when you talked about no increase in the lung of rates

of lung cancer among Quebec chrysotile miners, you were

talking about chrysotile the way it occurs and is dug out

of the ground, is that right?

AThe information I've been receiving from there.

QAnd the same comment could be true with respect to your

observations as reported then based on the observations

you had available to you with respect to mesothelioma?

AThat's correct.

QAnd when you say up until 1979, you were not personally

convinced that chrysotile could cause mesothelioma. It

is the chrysotile?

AThe fiber, not the product.

QSupplies. So still the mineral fiber could not cause

mesothelioma in your view up until 1979, is that right?

A(Witness indicating affirmatively.)

 155

QNow, one of the things you mentioned is the childhood cases,

and I think you told me before that these cases were

presented by two Frenchmen, LeJartre and LeJartre, is that

right?

AThat's how I recall it, yes.

QAnd they were present at yet another meeting of the New York

Academy of Sciences in 1979, is that right?

AYes.

QAnd it is true, is it not, that in the published presentation

by LeJartre and LeJartre there is no mention of childhood

cases of mesothelioma?

AApparently, I had the wrong name. The name is wrong.

QDoctor, do you remember writing a letter in 1976 to Grover

Wren?

AYes.

QAnd Grover Wren at that time was Chief of Division of Health

Standards, Development?

AYes.

QIn OSHA, is that right?

AOSHA.

MR. SCHACHTMAN: I beg the Court's

indulgence, Your Honor.

BY MR. SCHACHTMAN:

QDr. Schepers, I'm going to show you what I've marked as

 156

Defendant's Exhibit OI-15, and do you recognize that as

a copy of the letter you sent to Mr. Wren in 1976?

AYes, sir.

QLet me have that for a minute. If you need to check with it,

let me know.

The subject of the letter was the scientific

data on fibrous minerals and beryllium, and it was a follow

up letter to your meeting with him and the Assistant

Secretary of Labor in which you discuss the question of

asbestosis and berylliosis and the relationship of

exposure of various industrial substances to lung cancer,

is that right?

And one of the things you say to Mr. Wren is

as follows: "As you can see, my research cast considerable

doubt on the proposition that American fibrous minerals

are carcinogenic. I am not one of those who deny the

carcinogenicity of everything. To the contrary, I believe

I've helped prove that some environmental pollutants are

carcinogenic. For this reason you may perhaps accept the

credibility of my findings when I state that I could detect

no evidence of carcinogenicity for either chrysotile, talc

or fiberglass."

And then you say you await his answer. Is that

right?
 157

ADid you ask me a question?

QThat's what you wrote in 1976 to Mr. Wren.

AYes, I was talking about the carcinogenicity. It came from

the point of regulations because the regulations would

have to set it down to zero tolerance.

QAnd in 1978 you wrote a letter to Hoeffler at the Department

of Navy, is that right?

AYes.

QAnd I'm going to show you what I'm marking as Defendant's

Exhibit OI-16, a letter from you to -- let's see if I can

get you another copy so we can both look at it together.

One of the things you say in this letter of 1978

to Captain Hoeffler, who is a medical doctor, is that the

net result of your fifteen years of work in the field has

been to convince you that chrysotile, which is the North

American type of asbestos, is relatively innocuous as

compared to the African and Russian varieties.

And you go on to say, "I have never seen a case

of lung cancer developed in any person exposed to

chrysotile only. However, I have seen plenty of lung

cancers in asbestos workers. This is because most

asbestos workers are also exposed to carcinogenic

materials other than asbestos, and all the cases of lung

cancer also were chronic lung self-mutilators through

 158

cigarette smoking."

And you go on to say, "In a rather major set

of experiments of mine, I exposed animals to the most potent

known carcinogen (beryllium sulfate) and then exposed them

to asbestos (chrysotile) dust. These animals had fewer

cancers than those exposed only to the beryllium sulfate.

So chrysotile is not even a significant co-carcinogen.

I reversed the order of the exposures, namely,

asbestos (chrysotile) first and then the BeSO4. The

result was the same. The animals exposed only to

chrysotile never developed any lung cancers."

You go on to say, "I probably have the largest

collection of asbestosis case materials, having been a

consultant to hundreds of physicians. I have a very

detailed knowledge of what various types of asbestos can

and cannot do to the lungs. If my command of this subject

can be of use to the Navy in the current lawsuit, please

feel free to use my services as a consultant as you deem

fit."

Now, Dr. Schepers, you have provided consulting

services to the firm of Henderson & Goldberg since about

1978, is that right?

AI think that would be about the time they asked me. I think

'79 or '78; somewhere around there.

 159

QAnd you are being compensated for your time being here today,

are you not?

AI don't get compensated.

QThey don't write you a check?

AThe Institute gets compensated.

QOkay. And this is a professional association you have set

up?

AIt is a corporation.

QAnd I take it you have a financial interest in this corporation.

You have a financial interest in this corporation?

ANo, none.

QDoes your wife have a financial interest in this corporation?

ANo.

QWho?

ANon-profit.

QWho are the shareholders?

AI manage it, I own it and all the money is spent on research

and work. Nothing comes to me.

THE COURT: I'm sorry. Speak up a

little, Doctor. I don't think the Jury could hear what

you are saying.

BY MR. SCHACHTMAN:

QThe rate of compensation is $400 an hour?

AThe Institute bills for my time is $400 an hour. That's what

 160

I have to send to Mr. Pyle so that I can pay staff that

is staying behind to do the work.

QAnd the work, a large measure of the work that is being done

while you are here is looking at other cases for litigation,

is that right?

AOh, all that type of work is litigation work. Anything

relating to pneumoconiosis is litigation work.

You name a doctor or lawyer or whatever, and

he has to charge for it because it is litigation. It is

the system.

QI understand. I'm just asking you a question.

AYou get paid, he gets paid. I have to be paid.

QI hope I get paid. I don't know yet. You get paid

whatever the result, is that right?

AWhatever I do, I have to send a bill because it costs money

to do the work that I do, but I don't put it in my bank.

It goes into the institution's bank.

QAnd to the profession or corporation, and I don't know that

you ever answered my question.

Are you a shareholder in that corporation?

AI'm the owner of it.

QAll right.

ABut nothing is retained. All the money is spent on the work.

QDo you file an income tax return for your corporation?

 161

AI file it, yes.

MR. SCHACHTMAN: That's all I have, Your

Honor.

THE COURT: Mr. Fournie.

MR. FOURNIE: Thank you, Your Honor.

CROSS-EXAMINATION

BY MR. FOURNIE:

QDr. Schepers, my name is Ray Fournie.

AYes, sir.

QAnd I'm going to try to not cover some of the ground that's

been covered, but I'm afraid that unavoidably it will be,

so please forgive me if it sound repetitive.

Doctor, at one time I believe you held the belief

that installers of new asbestos insulation were exposed

to minimal amounts of asbestos, is that correct?

AThat's correct.

QIn fact, you still hold that belief today.

AOh, yes, that's true, because if you are constructing a factory

out in the open and there is no work going on in the factory

and no repair of old pipes and things the amount of dust

generated in doing that, especially if you use a product

like Kaylo, is minimal compared to the insulator repairing

a battleship that has been shot up and the place is all

filthy with asbestos inside. That's a different kind of

 162

exposure. That's what that context is of what I said.

QSure. The difference is if it is being put on for the first

time you don't have the dust that you create when you are

ripping some of it off?

ACorrect.

QWith a product like Kaylo, you consider that to be less dusty

than some of the older insulation?

AOh, yes.

QOkay.

Now, you had previously talked about the ACGIH.

Do you remember that?

AYes.

QAnd we -- I won't go into the threshold limit values because

I think we've explored that enough already, but -- and

I don't recall if you testified to this, so if it is

repetitive, please forgive me.

In 1958, the ACGIH published a classification

of what their standards meant, correct?

AYes, sir.

QAnd basically they said that the threshold limit values

represent only conditions under which it was believed that

nearly all workers may be repeatedly exposed day after

day without adverse affect, correct?

AThat's what they said.

 163

QNow, they didn't say anything about just limiting it to

asbestosis, is that correct?

ANo, that was general, an overall comprehensive definition.

QNow, we had talked briefly about Dr. Selikoff, you know, in

the study that he or the symposium that you were part of

in 1964, and that was published I believe on December 31,

1965?

ARight.

QAnd then it would have been disseminated to whoever was

interested sometime after that in 1966?

ACorrect.

QNow, Dr. Selikoff at least recognized that the studies that

had been done before were primarily with the textile

workers?

AYes.

QAnd that the only epidemiological study in the United States

of insulation workers up to that time was the

Fleischer-Drinker study that was published in 1946, is

that correct?

AYes, that's correct.

QAnd he also said that because of the variety of uses of

asbestos-containing products it was no longer acceptable

to lump everybody into one group, correct?

AThat's right. It is a splinter and not a lumper.

 164

QRight.

So you put the asbestos textile workers as one

splinter and you put the insulators as another splinter

and so on, correct?

ARight.

QNow, he also commended Fleischer and Drinker for the their

study, as I believe you did. You said it was a good study?

AI thought it was a good study.

QIt wasn't correct as it turned out, but at the time they did

the best they could?

ARight.

QNow, Dr. Selikoff talked about the measurements of dust

exposure in insulation workers but said that it had been

infrequently reported, is that correct?

AYes.

QAnd that had been hampered by the very nature of the type of

work they do?

AThat is so.

QBecause they are not always exposed throughout the day

consistently to asbestos-containing products, correct?

ACorrect.

QHe said as another asbestos work peak counts for asbestos fibers

have generally been within the five million particle per

cubic foot of the ACGIH, is that correct?

 165

AYes.

QAnd basically he was recognizing in 1964 the ACGIH standard

that they had first set in 1946, correct?

ABy coincidence, yes.

QAnd that he was also basically -- it was his impression that

the people that he had studied up until 1964 had basically

fallen within that particular threshold value, correct?

AYes.

QNow, after that in about 1968 I believe Dr. Cooper and Dr.

Balser also published a study, and that was in conjunction

with the asbestos workers union, correct?

AYes.

QAnd it dealt with the environmental exposures and health

surveys of various insulating workers, some were in the

western states?

AIn California.

QOkay.

And I think Dr. Cooper wrote that although they

attempted to sample the dustiest operations the time

weighted average for dust samples containing asbestos

probably would not exceed the TLV in most situations, even

on ships, correct?

AThat's what he said, but it doesn't make any sense, because

they didn't count the dust. They weigh it.

 166

QI understand, sir.

And some of the problems that we have --

AYes.

Q-- in this whole matter is that people did say that in the

literature, correct?

AYes, he said that.

QAnd the TLV he was talking about in 1968 was still the five

million particle per cubic foot of air, correct?

AYes. That was what he was referring to.

QOkay.

Also basically he said that what he found in

1968 confirmed the findings by Fleischer and Drinker and

those folks in 1946?

AHe thought so, yes.

QRight.

Now, let's talk about your article that was

published in 1955 and that had to do again with the findings

at Saranac concerning the Kaylo product.

I think in the beginning of your article you

tell the reader that the hydrous calcium silicate product

that was used in the studies was made from calcium

hydroxide, correct?

AYes.

QAnd silica?
 167

AYes.

QAnd a moderate amount of asbestos?

AYes.

QAnd the asbestos was incorporated in the mixture to impart

certain physical desirable physical properties to the

finished product, correct?

AYes.

QAnd the asbestos was desirable in making the product work well?

AYes.

QAnd at that time in 1955, there was no substitute for asbestos

to make a high temperatured product work?

AThat was what they informed us.

QOkay.

Now, and again what I'm doing here is, I am trying

to eliminate certain things as I go along so I don't have

to be repetitive.

I think earlier when I asked you, you talked

about Kaylo?

A(Witness indicating affirmatively.)

QAnd you had previously concluded that Kaylo was less dusty

than other products?

AYes.

QAnd being less dusty from a health standpoint was an improvement

over those existing products, correct?

 168

AYes.

QNow, in that 1955 article, you did not make any conclusions

about insulation workers or the end users because that

wasn't the purpose of the study?

AIt was an animal study.

QRight.

And you did not mention anything in your article

about the risk of asbestosis to human?

ANo.

QBecause again it is an animal study?

ADidn't do it.

QAnd you didn't mention anything about the risk to humans or

lung cancer, either?

ANo.

QIn fact, I think you probably already testified you didn't

find any cancer as such in any of the animals?

ARight.

QNow, in 1958, you went to work for Dupont?

A(Witness indicating affirmatively.)

QAnd I think Dupont in some aspects only because they tried

to make certain types of insulation products could in a

broad sense be considered a competitor of Owens-Corning

Fiberglas at that time?

AYes.
 169

QCorrect.

And you were aware of that potential conflict?

ARight.

QAnd so you advised at least Owens-Corning Fiberglas of that?

ARight.

QAnd that although you would be able to continue certain work

with them, the review of x-rays that you had been doing

for Owens-Corning Fiberglas of their workers, you had to

discontinue?

ARight.
 172

QBut you were aware that they did continue with the

x-ray studies through the '60's?

ARight.

QNow, while at Dupont, as I understand it, you did some

experiments to try to find a fibrous substitute for

asbestos in some of their high temperature insulation

products?

ARight.

QBut you were unsuccessful. Try as you might because the only

substitute you could find caused tumors in laboratory

animals, correct?

ARight.

QAnd what was the name of that substitute you were trying to

find?

AFibrous potassium titanate.

QSo even if you had done some experiments, you weren't able

to find any substitute for asbestos?

AI didn't know.

QNow, I think you continued to consult with OCF to about what,

about 1962, even though you were still at Dupont?

ARight. It went on to the middle of the '60's, yes.

QAnd that had to do with their fiberglass product?

AYes.
 173

QAnd OCF had come to you in what year, about 1956?

A'54.

Q'54 to ask you to consult while you were at the Saranac Labs

about their fiberglass products?

ARight.

QBecause they were concerned about the health aspects or the

potential health aspects of their product out in the work

force?

ARight.

QCorrect?

ARight.

QAnd that was a commendable thing to do?

AOh, yes.

QIn fact, you would hope that someone who was putting a brand

new product like that out on the market would consult

experts such as those at Saranac before they put it out

on the market?

AYes.

QNow, as I understand it, you stand by the statement that between

1938 and 1968, many scientists believed that if you could

eliminate asbestosis you would not develop lung cancer

from mere exposure to asbestos, correct?

ACorrect.
 174

QAnd you also stand by what you said before between 1938 and

1968. There was a reasonable body of medical authority

that believed that if you kept the asbestos dust exposure

below five million particles per cubic foot of air, that

it constitutes a reasonably safe work environment and most

cases of asbestosis would not be anticipated, correct?

AYes.

QAlso, you stand by the statement that between 1938 and 1968

there was a reasonable body of medical authority who

believed that insulators on the average were exposed to

a level of asbestos within the five million particle per

cubic foot threshold limit value?

ARight.

QAnd that would also hold true for someone who is working in

the same area as an insulator?

ARight.

QSome people described them as bystanders?

ARight.

QAlso between 1938 and 1968 it was believed that if you kept

the exposure below the threshold limit value you wouldn't

expect asbestosis and, therefore, you wouldn't expect lung

cancer?

ARight.
 175

QAnd that was also considered the state of the art in that time

frame, correct?

AYes.

QAnd also at that time that was your opinion?

ARight.

QHold off on this one for just a few minutes.

Between -- the article in 1955, it did not say

that Kaylo caused cancer, correct?

AI didn't use those words.

QOr that you saw neoplasia?

AYes.

QIn the laboratory animals at that time, right?

ARight.

QWhen Owens-Corning Fiberglas came to you in 1954, they came

voluntarily to Saranac, correct?

AYes.

QAnd you knew that over ninety percent of their products were

fiberglass products?

ARight.

QYou also knew that by 1958 Kaylo had been used in the field

for about ten years at that time?

AI knew something of that, yes.

QIt was your understanding that Owens-Illinois first started

 176

marketing it in about 1948?

AYes.

QNow, you understood that fiberglass could only insulate up

to about eight hundred degrees at that time?

AThat is what they told me.

QAnd that products with asbestos in it could go up to 1200

degrees?

AYes.

QAnd 1800 degrees?

AYes.

QFiberglass, the problem was it could not hold up under extreme

temperatures?

AYes.

QAnd it would melt?

ARight.

QNow, you'd previously talked about in questioning by Mr. Pyle

that talking to OCF concerning the fiberglass Corvette

body, correct?

AYes.

QAnd you recommended to them that they not use asbestos as a

substitute for fiberglass in the Corvette body?

ARight.

QEven though they were concerned that the fiberglass at engine

 177

temperatures may cause melting or warping of the fiberglass

body?

ARight.

QAnd as far as you know, they followed those recommendations,

correct?

AAs far as I know, yes.

QAlso in the '50's and '60's there were the Navy government

inspector's specifications regarding asbestos in certain

products used by them, correct?

AYes.

QAnd most industrial applications that required high

temperature insulation demanded that asbestos be in that

insulation. Those were the specifications?

AYes.

QNow, you knew they required insulation that contained asbestos

in it for battleships for the purposes of fireproofing?

AYes.

QAnd I think we have talked about that because not only the

fireproofing propensities that it had, but also it was

lightweight?

ARight.

QNow, are you aware that many state fire regulations also require

asbestos in the insulation in its buildings?

 178

AI've seen signs.

QIn fact, I believe in 1978 you wrote the U.S. Navy and indicated

that as long as it was within the five million particle

per cubic foot of air of pure chrysotile, you would not

expect a normal person to get asbestosis, correct?

ARight.

QNow, let's talk briefly. You had been or there had been a

couple of exhibits that were introduced, and I want to

just talk about them very briefly.

The first one is Plaintiff's Exhibit 51, which

was the letter you wrote to Mr. Birch at Owens-Corning

Fiberglas.

AYes.

QDo you recall that?

AYes.

QNow, in reading through that letter it seems like you were

talking to Mr. Birch, and it was the purpose of the letter

to talk about fiberglass?

AOh, yes.

QAnd it seemed that you were recommending that there had been

a number of tests done on fiberglass, but to be sure about

it from the health standpoint some more tests needed to

be done.
 179

AYes. I recommended specific tests about cancer.

QAnd that would also include certain tests concerning like

monkeys, hamsters, mice, et cetera?

ARight.

QAnd you had a test for tuberculosis that you were still

concerned about because I believe the animals that were

used in the experiment had spontaneously died and that

wrecked up the experiment?

ARight.

QNow, the letter to Mr. Birch that wasn't about Kaylo at all,

was it?

ANo, it isn't mentioned in it at all.

QAnd nothing in that letter talks about any test results about

asbestos, correct?

ANo. This update didn't give the conclusion.

QI'm sorry?

AIt is an update of what I am doing. It doesn't yet give the

conclusions that came later.

QRight.

You were at this point just because you were

told by some Owens-Corning people to contact Mr. Birch

that you were writing to him about your -- let's can we

call them interim preliminary results and temporary

 180

results?

ARight.

QNow, just also briefly on another exhibit if I can find it

here. I think it was Exhibit 53, was another letter that

you had written to Mr. Birch.

AYes.

QAnd I don't know if you still have it up there someplace, Doctor.

AIt would be down here somewhere.

QAnd while you're doing that, I am trying to eliminate some

more questions.

AHere. I found this.

QOh, you did, good.

And, Doctor, basically again that is another

letter about fiberglass?

AYes.

QAnd, in fact, I think in the first paragraph you talk about

how long that Saranac had been studying fiberglass?

ARight.

QBecause you went back and looked, correct?

AIt started between 1936 and '47.

QAnd part of the study at least involved Owens-Corning Fiberglas

from say the late '30's all the way through, correct?

ARight.
 181

QAnd again you were describing some of the conclusions that

you had been able to arrive at concerning fiberglass?

ARight.

QNow, as I understand what you eventually told Owens-Corning

Fiberglas was that their products in terms of worker

inhalation was a safe product?

AYes.

QAnd that it was your impression that they were a responsible

company for coming to you, correct?

AI think so, yes.

QThey wanted to know the effect of their product on workers

is why they came?

AYes.

QAnd you personally did not know in the mid-'50's and in the

'60's of the available fiberglass or fiberglass material

that would work at temperatures as high as 1200 degrees?

AThat fiberglass would melt.

QThey would melt at those high temperatures?

AYes.

QAsbestos would not melt?

AIt would not melt, yes.

QNow, also in the '50's and in the '60's, it was your personal

and professional view that without the underlying

 182

asbestosis, there was no increased risk for lung cancer,

correct?

AYes.

QAnd you held that view until about what, 1978?

AAbout then.

QThen would it be fair to say that if a company came to you,

consulted you in the '40's, the '50's, the '60's and the

'70's, and asked your opinion with respect to providing

a reasonably safe place to work in an asbestos environment,

that you would have advised them that as long as they keep

the asbestos exposures below the prevailing threshold

limit values at that time, they would be providing a safe

place, correct?

ANot absolutely safe, but reasonably safe.

QOh, yes. I understand.

Now, we had already I think mentioned that Kaylo

was not a toxic substance.

AYes.

QAnd, in fact, you were on the Committee of the American College

of Chest Physicians?

AYes.

QAnd it was the section on the Nature and Prevalence Committee

on the Occupational Diseases of the Chest?

 183

AYes.

QThat committee published in the Journal of Diseases of the

Chest that asbestosis is not currently considered a toxic

substance since it does not produce systemic poisoning,

is that correct?

AI think you misread. It is not asbestosis.

QI'm sorry, asbestos.

AAsbestos.

QYou are correct.

So, is it that asbestos was not considered a

toxic substance because it did not produce systemic

poisoning?

ARight.

QSo if you said asbestos was not toxic, that would be true?

AThat would be true.

QNow, not only did you agree with that, but I believe you wrote

that, didn't you?

AI wrote it.

QDoctor, I want to reach a couple of things if I may about

warnings because you had touched on that earlier in your

direct examination.

As I understand it, you were on the Committee

of the Surgeon General to design the words to go on warnings

 184

on cigarette packages back in the

mid-'60's?

AYes.

QAnd the warning that went on back then was, "Caution:

Cigarette Smoking May Be Hazardous To Your Health."

Correct?

AYes.

QIt wasn't -- I mean back then they didn't say it may cause

cancer?

ANo.

QThey didn't say it may cause emphysema?

ANo, we didn't use those concepts because we didn't want to

-- we were told not to use inflammatory terms.

QYou wanted to be also generally inclusive. I take it not to

limit it just so people didn't get a false sense of

security?

ARight.

QIn fact, I don't think it was until what, the 1980's when

cigarette warnings finally came out at different times

saying, "May Cause Cancer"?

AYes.

QDoctor, I think I've got one more area to go into, then I'll

be finished.
 185

I want to take you back to at least 1975. In

your initial cross-examination, you had talked about

mesothelioma and that after discovery of a possible link

between asbestos and mesothelioma there was a lot of talk

and excitement about it.

Do you remember that?

AYes.

QAnd in 1975, it was your impression that by that time the flurry

of excitement had died down?

AYes.

QThat the mesothelioma epidemic was a one time affair?

ARight.

QAnd that it may have had nothing to do at all with the fact

that some people have developed it who were also working

in the asbestos industries, correct?

ARight. If it has appeared then it couldn't have.

QYou said in 1975 that scientists throughout the world had done

many experiments to see if mesothelioma tumors could be

reproduced in experimental animals, correct?

AYeah.

QAnd you said that it was basically possible to produce tumors,

but that they did not conform to the strict definitions

of mesothelioma?
 186

AYes.

QAnd you further said that a person, a scientist, could produce

tumors in the pleural space by introducing foreign

materials of any kind?

ARight.

QSuch as scrapings from lead pencils, sputum, glass, asbestos,

talc, silica --

AYes.

Q-- coal dust? You said it could be done by making a sample

of whatever it was and injecting that sample into the

pleural space by means of surgery --

ARight.

Q-- correct? But at least in 1975, by 1975 no one had succeeded

even after the most diligent experimentation to reproduce

those kinds of tumors in experimental animals by making

the animals breathe the substance which would include dust,

chemicals, et cetera, correct?

ARight. The breathing test results became positive in '78.

QRight. But in 1975, it wasn't?

ANot yet.

QAnd it wouldn't have been in 1972, either?

ARight.

QYou felt that in 1975 it looked like the previous association

 187

of mesothelioma tumors with the asbestos industry was a

temporary thing, correct?

AAll right.

QAnd you said that perhaps it was a viral epidemic?

A(Witness indicating affirmatively.)

QOr maybe some phenomena that came along throughout the world

and has now gone again, correct?

ACorrect.

QThat was in 1975?

AThat's what I hoped it would be so.

QSure. And that's what you honestly believed?

ARight.

QAnd that was from a lot of evidence you had seen?

ARight.

QAnd you are aware that in 1975 Owens-Corning Fiberglas had

removed the asbestos from its products for three years?

ANo, I didn't know that. If you tell me so, then I accept that.

QOh, sure. I think Mr. Pyle read the interrogatory answer that

said they removed it in November of 1972.

AYes.

QAnd you have no reason to doubt that, do you?

ANo, I don't.

QSo it is clear we stopped manufacturing, but not stopped

 188

selling. Stopped manufacturing.

And, Doctor, I'm finished with you. Thank you

very much, sir.

AOkay.

THE COURT: Members of the Jury, why

don't you stand up and stretch a minute. You can stand

up, too, Doctor, if you want to.

Mr. Haushalter.

MR. HAUSHALTER: Thank you, Your Honor.

CROSS-EXAMINATION

BY MR. HAUSHALTER:

QDr. Schepers, I'd like to turn your attention to the report

which hasn't been discussed yet, and that's the one which

was published in 1958 by Dr. Braun and Truan.

And as you know, that was published in the

American Medical Association Archives of Industrial Health

and you're familiar with that article, are you not?

AYes.

QAnd that was captioned An Epidemiological Study of Lung Cancer

in Asbestos Miners and that was a study which was undertaken

while Dr. Braun was part of the Industrial Hygiene

Foundation?

AI believe so.
 189

QAnd Dr. Braun specifically became President of the Industrial

Hygiene Foundation, is that correct?

AYes.

QAnd that was a study that was an epidemiological study, a 6,091

of Canadian asbestos miners, is that correct?

AYes.

QAnd it was conducted up in Canada by Dr. Braun, Dr. Churg and

Truan of Researchers?

AMr. Truan was the one who did the statistical work. Dr. Braun

was the supervisor.

QRight. And Dr. Braun actually did the investigation of those

6,000-some miners, is that correct?

AYes.

QAnd he took a look at the miners to check their exposure

obviously to the chrysotile asbestos which was, what was

being mined up in Thetford and Asbestos, Canada?

AYes.

QAnd the purpose was to ascertain whether or not there was an

increased incident of lung cancer among asbestos miners

who were exposed to one hundred percent pure asbestos on

a daily basis, eight hours a day, fifty-two weeks a year

for working a lifetime?

MR. PYLE: Objection to the form of

 190

the question unless there is some proof that miners digging

asbestos out of rock can somehow eliminate the rockdust

and make it one hundred percent asbestos.

MR. HAUSHALTER: That's not an objection,

Your Honor. That's a speech.

The question to the doctor is apparent.

THE COURT: Well, do you understand the

question, Doctor?

THE WITNESS: No, sir.

MR. HAUSHALTER: I will rephrase it.

THE COURT: Rephrase your question.

BY MR. HAUSHALTER:

QThe purpose of the study was to ascertain the health effects,

particularly the lung cancer incidence for miners who were

exposed to one hundred percent asbestos, is that correct?

MR. PYLE: Objection as to form, lack

of foundation.

MR. HAUSHALTER: Lack of foundation? It is

a question.

THE COURT: Well, he knows what the

purpose of the study was.

BY MR. HAUSHALTER:

QDo you know the purpose of the study?

 191

AThe purpose of the study was to count the numbers of cancers

that developed in the working miners while they were

employed in the factory, not to count how many cancers

were caused by asbestos, period. It was just how much

cancer occurs while a man is employed on the job. That

was the purpose.

QSure.

AThey didn't come to me and say, "Tell us how many cancers you

found in the diseased miners." They didn't come to Dr.

Gross here in Pittsburgh and ask him how many. They didn't

go to Dr. Vorwald to count all the cases he got.

They counted only the incidents in working

miners, and that was the purpose of that study and as done

it was a great study.

QIt was fine. In fact, you've described it as a magnificent

epidemiological study on 6,000 miners, is that correct?

ARight. Working miners.

QWorking miners, and it was -- the mortality rate from lung

cancer didn't appear to increase with the length of

exposure or the degree of exposure effects which prevented

strong evidence against the carcinogenicity of asbestos.

Isn't that one of the findings?

AThat's what they say, yes.

 192

QAnd they compared the experience of the asbestos miners with

that of various segments of unexposed comparable

compilations that showed, that observed a number of deaths

among the miners was not significantly different from that

of the unexposed number.

That was another one of their findings?

AThat's what they said, yes.

QAnd while they were comparing things, they found that the

world-wide experience of persons exposed to asbestos dust

was not worse with respect to lung cancer than that of

the unexposed populations.

That was another finding, was it not?

AThat was what they said.

QAnd there was another finding on the basis of what was believed

to be excellent and reliable data.

It was fair to conclude that asbestos miners

in the Province of Quebec did not have a significantly

higher death rate from lung cancer than do comparable

segments of the general population.

That was their final finding, was it not, Doctor?

AWell, I can't say you are correct.

QNo, no.

AYou read it right.

 193

QI read it right, and that's the state of the art or state of

the medical knowledge at least as Dr. Braun and Dr. Truan

presented it in 1958?

AThat last part I have to dispute, that is, what they said in

the article, but it is not the state of the knowledge

because I was receiving the dead man cancers and Dr. Vorwald

was receiving another batch and Dr. Paul Gross. They

didn't count those. They counted only the nineteen that

occurred on the job. They didn't count the other one

hundred that died when they were fired.

QI understand you have criticism of the report, Doctor, but

be that as it may, the American Medical Association

published this and they presumably had some type of

imprimatur, is that right?

AThat's right. Everybody got a bum steer from it, the

publication.

QBut when you get a bum steer and you publish it in respected

journals other researchers, other doctors look at it, the

scientific community and the public in general looks at

it and that creates an impression as to what is going on

in research, does it not?

ARight.

QAnd as we all know, opinions change and scientific knowledge

 194

changes and expands, is that right?

ARight.

QAnd what was true in 1958 might not be true in 1990?

AWell, I think if you reconstruct the whole story we'd have

to say that what is true now had already occurred then.

QSure. It occurred then, but what we are talking about then

is a lack of consensus among researchers back in the '50's,

is that right?

ANo, you can say it that way.

QAnd there is a lack of consensus in the '60's and '70's on

many of the issues you testified to with relation to the

carcinogenicity effect of asbestos on miners?

AThe carcinogenicity I don't think they used the word

carcinogenicity, but subject to corrections, they were

counting the number of cancers that occurred on the job

to see it occurred more rapidly in working miners than

inside working other people.

QSure.

If we move on to 1967 and Dr. Selikoff wrote

that a non-smoker who worked in the asbestos industry had

no greater incidence of cancer than the general public

-- and you accepted that as true at the time, is that

correct?
 195

AYes.

QAnd it wasn't until 1979, some twelve years later, that Dr.

Selikoff published a new study which indicated that there

is an independent risk of lung cancer from prolonged

asbestos exposure without cigarette smoking, isn't that

correct?

AYes.

QAgain, it is a change in the evolving state of medical

knowledge, is that right, Doctor?

AYes.

QAnd you accepted what Dr. Selikoff said, that if you didn't

smoke and you were exposed to asbestos you didn't develop

lung cancer, is that correct?

ARight.

QSure.

And concerning the medical state of medical

knowledge with relation to the prevalence or incidence

rate of mesothelioma, there was a great deal of controversy

about that in the changing medical knowledge all the way

up the 1980's, is that right?

AYes.

QGoing back to the report by Dr. Olds and Dr. Harrison of the

Mayo Clinic in 1971, they performed a study over twenty-two

 196

years and found only 27 percent of those patients had a

probable or definite exposure to asbestos, and you are

familiar with that study, are you not?

AI read that, yes.

QSure. That would be less than thirty percent incidence rate

of exposure to asbestos relation to this rare tumor, is

that right, Doctor?

AI say it is from studies like that that the thirty percent

concept arose.

QSure. And that means seventy percent at least in the early

1970's of individuals who are exposed to asbestos were

not considered or were considered to have other causes

of mesothelioma developed?

MR. PYLE: Objection.

THE WITNESS: No.

MR. PYLE: Lack of foundation because

if he is going to quote and use an article for

cross-examination, which I expect you do, one article does

not make the state of the art as the doctor has pointed

out.

MR. HAUSHALTER: Counsel again is making a

speech. That's not an objection.

THE COURT: Well, I took it as an

 197

objection. The objection is sustained. Rephrase your

question.

BY MR. HAUSHALTER:

QIf twenty-seven percent of the reported findings in 1971 were

of mesothelioma, were exposures to asbestos, then

seventy-three percent had no known asbestos exposure for

a causation.

Would that be a fair arithmetic, Doctor?

AYou can't medically conclude that way. Anybody can count,

and you are just doing --

QSubtraction?

AKindergarten counting. All those statements say is we have

proven up to now the role of asbestos in twenty-seven

percent.

Now, what they say about not having proven it

in the balance doesn't add anything to knowledge. It means

we have only proved what cancer is the other, but that

cannot be interpreted as saying and we have disproved a

role for an agency in the balance.

QOf course not.

AThey are saying about the rest we know nothing.

QExactly.

AThat's all you can conclude.

 198

QI didn't mean to leave the impression, Doctor, that my question

implied that.

ANo.

QThat the other seventy percent had to have something else.

AYes.

QBut there wasn't any known cause for it at the time?

ANo, no known cause can be found because there was none.

QIn fact, when you look at a particular type of fiber called

an amosite fiber, it wasn't until 1972 that it was even

studied or published by Dr. Selikoff that amosite asbestos

had a carcinogen or cancer-causing potential, isn't that

correct?

AThey are not correct because in South Africa where amosite

comes from, it was legislated that it shall be deemed to

be carcinogenic in 1960 or '69 when the mine started up

again.

QYou are familiar with the American Medical Association

publication archive of Environmental Health for 1972 and

the article is by Dr. Selikoff and Hammond and Churg

entitled The Carcinogenicity of Amosite Asbestos.

AI saw that.

QYou are familiar with the article, Doctor?

AYes, I read it.

 199

QDr. Selikoff states there in that there has been no evidence

to indicate whether or not the amosite variety is also

carcinogenic.

You are familiar with the portion of the report?

AI remember the statement and it surprised me because he stated

in his '64 paper he had four cases. Mr. Pyle has it.

He describes four cases and described it rather

graphically.

QYou realize Dr. Selikoff, Dr. Hammond and Dr. Churg also said,

"Diligent efforts have been made to investigate the

occurrence of disease in the Transvaal in South Africa,

the only area in which amosite is mined and where

populations exposed only to amosite could be identified.

Environmental studies in this area reported in 1964 showed

no instance of mesothelioma in amosite miners and only

isolated incidents of carcinoma of the bronchus."

You are familiar with the section of the report,

aren't you, Doctor?

AThat is a true statement because the mines were shut and there

was nobody being exposed. They were just finding the old

few cases.

Remember, this is the country where I come from.

QI remember.
 200

AAnd it is the mining situation that I surveyed, and it was

on my recommendations that the mine was closed because

of the high prevalence of the disease.

Everybody in the mine who worked in the mine

and the people in the village and the village exposed to

the dust from the mine were sick.

So, they all went ahead and many of the black

people were people from neighboring territories went back

to their homes in other countries like Mozambique.

The white people went back to England. There

was no follow up on them. So whatever is said there is

a nonsense statement.

The mine came back into operation functionally

with new teams of workers somewhere around 1959, and the

first real paper on that subject is by Dr. Harrison eighteen

years later, where he said, "Now we know how long it takes

to cause mesothelioma because it is eighteen years and

now we have cases of mesothelioma coming back."

But you can't reason backwards and say because

we knew nothing, therefore, we proved everything. You

can't do that.

QI mean --

AIt is not logical. Nobody can.

 201

QI think you have criticism of Dr. Selikoff, Dr. Hammond and

Dr. Churg.

AI have to criticize them, yes.

QThose physicians, also researchers, also stated few data exists

concerning comparative neoplasia potential in the plan

of the several kinds of asbestos and, particularly, there

has been no evidence concerning whether the amosite variety

is carcinogenic, and you disagree with that?

AIt is a bland statement. It means nothing to me.

QAll right. So in other words, what we've established is that

there is no consensus in the medical community in 1972

as to the carcinogenicity of amosite asbestos since we

have three learned researchers who feel that, contrary

than you do, is that correct?

AThat is not correct. All the civilized countries in the world

had declared for Workmen's Compensation purposes by 1960

that exposure to asbestos and asbestos occurring in

asbestos workers, and they didn't say it had to be

crocidolite or had to be chrysotile would be deemed to

be occupationally-related to exposure due to asbestos.

For him to come in reverse order after this had

been operationally in existence in England and in Finland

and in Germany and in France for two decades, for him to

 202

say now, "I have discovered they have all along been drawn

and all the decisions every doctor made and all these years

been wrong," you don't have to have criticism.

He is trying to do a fantastic thing there

saying, "I have finally discovered, I, too, finally have

discovered that it causes cancer." That's all he is saying

in the paper. It doesn't add to our knowledge.

QHe also indicates that information had been previously

available about crocidolite and anthophyllite. He

confines his remarks to amosite asbestos, Doctor.

Doctor, you, yourself, as late as 1978, were

of the opinion that only one out of every three cases of

mesothelioma had an asbestos foundation, is that correct?

AThat's correct. That's all that had been proven up until then.

QYou indicate, Doctor, that you are charging a fee of $400 an

hour for your in court testimony, is that correct?

AI'm sorry?

QYou indicate that your fee for testimony today is $400 an hour?

AThat's the current charge for the Institute.

Q$400 an hour also for depositions?

ASame, yes. The same strain on my mind, on my body.

QWhen did you retire from the Veterans' Administration, Doctor?

AJust over two years ago.

 203

QThat would be in 1989?

AYes.

QYou first got involved in this type of litigation back in 1978,

is that correct?

APlaintiffs called me in '78. The Defense have been calling

me since '54.

QWell, you've testified on behalf of Plaintiffs in how many

states, Doctor, Alabama, South Carolina, Virginia,

Pennsylvania, Tennessee, Georgia, Maine, Florida, Texas,

Ohio, West Virginia, Hawaii, Mississippi and several

cities in each of those states, correct?

AThe ones I have missed are Alaska, Idaho. Those are the ones

I missed.

QWell, maybe you can catch up.

AI'm still trying for them.

QWell, I'll bet.

You've testified in court approximately seventy

times or actually been over actually seventy times?

AIn courtrooms?

QYes.

AIt's over a hundred times.

QYou have been deposed over three hundred times?

AI didn't get paid. The Institute gets paid.

 204

MR. PYLE: I don't think he heard you.

ADo I get paid every time?

QNo, I'm sure you do. The question was --

ANo, I don't get paid every time because some of the lawyers

welch on me. Then I have to put the price up.

QI'll bet. And you've given well over what, four hundred

depositions now on various asbestos type cases?

AAt least that.

QYour income as a relation to that testimony and in court

appearances have gone up to from $50,000 bucks in 1982

over $300,000 in 1989, is that correct?

AThat's all public --

QYou are up to $400 now, Doctor?

AHum?

QAre you up to $400,000 now that your rates have gone up?

AActually, I discovered the accountant had counted my salary

from the Veterans' Administration in that figure, too,

so that the Internal Revenue Service has been sending me

back a fair amount of money when we discovered that.

QYou made $108,000 at the Veterans' Administration as a salary

for some years prior to retirement, is that correct?

AThat's right.

QAt the same time you were involved in giving on an average

 205

of depositions every other week since 1979, is that

correct?

AThat's correct, yes. I still have a fair amount of energy

left.

QI'll bet.

And the foundation that you referred to where

your money goes is down in -- where is that located,

Cambridge Springs, West Virginia?

AWhat?

QThe foundation you referred to.

AThe laboratory is in Cambridge Springs, West Virginia.

QAnd your laboratory, right?

AWell, I bought it and paid for it.

QThat's your money. And then you draw a salary out of that?

ANo, I draw no salary. I don't get paid. Only the workers

get paid.

QOnly the workers?

A(Witness indicating affirmatively.)

QIs this a 4,000 square foot laboratory on a forty-acre farm?

AIt is not a farm.

QFarm site?

AIt is a piece of space. If you have to work with animals,

you have to have space around you. You can't put it in

 206

a city.

QSure. You haven't seen any clinical patients on a regular

basis since 19 --

ANo, I stopped that in '74.

Q1974?

AYes.

QYou haven't worked in a hospital since 1974, is that right?

AThat's correct.

MR. HAUSHALTER: I have nothing further,

Doctor.

MR. SKEEL: No questions.

MR. YOUNG: Unfortunately, I have

some.

CROSS-EXAMINATION

BY MR. YOUNG:

QDr. Schepers, as you know, my name is Lane Young, and I'm going

to shift gears on you here. If I stand over here --

ACome nearer.

QYeah, I was going to stand over here where I've been standing.

Everybody wants to leave, so let me hurry up.

You have been testifying for about twelve years,

right?

ARight.
 207

QAnd you've given over five hundred depositions?

AI stopped counting. You are the only guys that are counting.

QThat's what you told me last summer.

AVery many. He said four hundred. I said it is over that.

You say five hundred? I suppose it is true.

QWell, when I asked you that last summer, you said yes.

A I think it is over five hundred.

QAnd depositions, the Jury much knows now, but it is lawyers

asking questions and the Court Reporter typing it down?

ACorrect.

QSort of like we are doing here?

ARight.

QExcept there is no Jury?

A Right.

QUntil later when they have to listen to it for hours?

AIf you could use it for a Jury, then it becomes a Jury.

QAnd you've testified over a hundred times in Court?

AYes, sir.

QAnd at least in the last twelve years, all of that testimony

has been on behalf of Plaintiffs, the people bringing the

action?

AOh, yes. They are the ones that call me.

QI'm not suggesting. I'm just asking the questions.

 208

Now, Dr. Schepers, during that entire

twelve-year period with the five hundred depositions and

the hundred, hundred and twenty Court appearances, you

have not given any testimony with respect to

asbestos-containing wire as an isolated subject, have you,

sir?

AI didn't think so.

QAnd during your professional career, you've not done any formal

studies concerning asbestos-containing electrical wire,

have you, sir?

ANo, I don't recall doing so.

QNo, the formal test, like these tests at Saranac Lake, we've

talked about all day?

ANo.

QOn electrical wire?

AI haven't done it. I don't know if nobody has.

QAnd you don't believe you know of any medical articles, these

articles like we've heard about all day, that deal

specifically with the release of asbestos fibers from

electrical wire, correct?

AI know some about that because I studied that, at least the

fibers, but I don't, can't quote you a medical article.

QAnd you are not aware of any medical articles that have been
 209

published that isolate asbestos-containing wire as a

health hazard to electricians, can you, sir?

AThat's correct.

QWhat I said is correct?

AYes, what you said is correct.

QNow, Dr. Schepers, with respect to any, to what you do know

about asbestos-containing wire, I believe, to your

knowledge, you don't know of any American-manufactured

asbestos wire or cable that contains asbestos fibers of

a type other than chrysotile, correct?

ARight.

QAnd you are also not aware of any American made asbestos

containing wire or cable in which the asbestos is not

encapsulated in some fashion, correct?

ACorrect.

QYou need to --

AIt is all encapsulated.

QAnd you and I have discussed before -- and I think you've already

mentioned it today -- that at least one of the reasons

that the chrysotile has to be encapsulated in the wire

is because chrysotile absorbs water and it could short

out the wire if it wasn't encapsulated?

AThat is correct.
 210

QAnd, Dr. Schepers, you don't know what percentage of wire and

cable may have been used by electricians in the United

States that contains asbestos, do you, sir?

ANo, I don't.

QYou do believe that asbestos-containing wire is a highly

specialized wire?

AYes.

QI was going to say if I asked a question that had already been

asked, you could raise your hand or tell me to shut up,

but let me --

Judge, I may be finished.

THE COURT: All right.

MR. YOUNG: I tried to mark out

everything.

BY MR. YOUNG:

QDoctor, I do want to ask you just a couple more questions.

You had previously told me that what the TLV

or this threshold limit value that we've been talking about

all day tries to do is to insure that most people who work

with a substance will not be hurt by using it, correct?

ARight.

QAnd you have said in the past that if a company kept the asbestos

exposure to its products below the established TLV that

 211

they would be operating prudently, correct?

ARight.

MR. YOUNG: Thank you, sir.

THE WITNESS: You are welcome.

MR. YOUNG: Hope I don't violate the

no questions asked again.

MR. PYLE: Yes, sir, I do have a few

redirect.

THE WITNESS: Take them all.

MR. PYLE: You don't want to see them

any more?

THE WITNESS: I don't want to see them

any more.

REDIRECT EXAMINATION

BY MR. PYLE:

QDr. Schepers, in what was shown to you as OI Exhibit 1, the

Dr. Dreessen report, are you aware or not, sir -- well,

let me ask you this.

When a scientist or medical person writes an

article, does he do that in a vacuum or in consultation

with what has come before me, or her?

AThe correct way is to go review what others have said so you

don't duplicate, and then limit your article to adding

 212

or reinterpreting what was done before. That is the usual

way to do it.

QAnd in the medical articles is what you've looked at before

often shown in footnotes or a library job file?

AYou put them at the back and you say I consulted these articles.

QAnd Dr. Dreessen did that in his 1938 study?

AYes, a large number of publication.

QAnd did that large number of publications include articles

on asbestos in cancer?

AYes, it did.

QAnd Dr. Dreessen made observations about cancer in that

article?

AHe didn't add new cases because he couldn't because he didn't

see all the persons who had worked there

because --

QWhy didn't he see all the people who had worked at the factories

he wanted to study?

AWhy weren't they there? They were fired before the study

started.

QOkay.

Is that related in his articles?

AWell, it eliminated the serious cases.

QDid he talk about that problem in his article?

 213

AYes, he did mention that the long term workers had been

dismissed just before he came on the scene.

QAt the time Dr. Dreessen was writing that was what, 1938?

A'338.

QWas the concept of the long term exposure or latency period

number --

AThat was well established.

QAnd what was it thought to be at that time?

AAt that time, it was beginning to be twenty years. Prior to

that, it had been only seven years.

QIn Dr. Dreessen's report, did he also have an extensive section

on engineering as to how to keep dust down?

AYes.

QWhat were some of the recommendations that he made at that

time?

ARecommendation one, use a substitute product if you can get

one.

Recommendation two, wet it down so you don't

stir up dust.

Three, use vacuum air so you can pull the air

away from the worker. Do good housekeeping so that any

dust that is spilled is sucked up, cleaned away. Keep

things oiled so the dust would stick to that.

 214

Have medical examinations of the patients on

a regular basis. X-ray them to detect disease early, and

tell the worker they are in a hazardous area.

QThe doctor or Professor Drinker's article in the late 1940's,

that actually did some dust counts as well, correct?

AVery good dust counts.

QAnd the standard that was in application at that time following

Dr. Dreessen's work for the dust-containing asbestos,

there has been a lot of talk about that.

Was that for a total dust or only asbestos dust?

ATotal dust.

QAnd what was the count again?

AFive million particle per cubic foot total dust.

QAnd in the dust counts that Fleischer reported in 1964, without

quoting the article, generally for total dust that counts

he made above, below or at the five million particles?

AThey were in the neighborhood of five million particles, but

the total dust sometimes went as high as a hundred forty

million particles per cubic foot in certain places in

certain times.

QAnd what he measured were counts or what the insulators were

doing?

AYes.
 215

QAnd the various forms that the insulators were working with?

AYes.

QDid Professor Drinker also make recommendations in his paper

as to how to minimize dust exposure to people working?

AYes.

QWith insulation products?

AHe specifically focused on band saw cutting, which is very

dusty, and suggested that they do have a suggestion,

mechanism under the table so all the air gets pulled away

and wetting down the area, wearing respirators and so

forth.

QAnd those were recommendations for the pipe covering

operations?

AYes, sir.

QIs asbestos-containing dust a nuisance dust?

ANo, no. No, it is a harmful dust.

QNow, it was talked that asbestos, you would not define as

"toxic" from a medical standpoint, correct?

AFrom a medical point of view, you shouldn't classify it as

toxic because it is not absorbed, and it doesn't hit your

kidneys by, like lead poisoning would or something of that

sort.

QThis substance is non-toxic. Does it mean it is not dangerous?

 216

ANo, no. That's the technical use of the term, toxical versus

danger. The thing can be dangerous and kill you like,

for instance, if I hit you on the head with a baseball

bat.

QPlease don't.

AThat makes it a toxic substance, but it is still dangerous,

true.

QIs a bullet toxic?

AA bullet is not toxic unless it gets stuck in your body. If

it goes through it could kill you, but you have no lead

poisoning.

QWhat did you tell Owens-Illinois about the threshold limit

value that they should apply to their facility that made

Kaylo?

AFive million particles per cubic foot of air for the total

dust; one million particles for the cubic foot of air for

asbestos.

QNow, Owens-Illinois attempted in their facilities where they

made asbestos or Kaylo to adhere to that, correct?

AThey adhered to it, yes.

QHow did they do that?

AUsing these dust control measures that we talked about.

QAnd, again, what are some of those that they employed in their
 217

facility where they were making Kaylo?

AYes, sir.

QWhat were they?

AExhaust ventilation, cleaning up the area, wetting down where

they could, wear respirators where dust was

uncontrollable, isolate that type of activity, regular

medical examinations, notifying the workers why all this

is done because they are in a hazard area.

QIt is agreed and you may be aware that Owens-Illinois sold

their Kaylo business to Owens-Corning in 1958?

AI heard that.

QAnd you know they got into the commercial production about

ten years earlier, correct?

AYes.

QAt the time that they got out of the business of Kaylo and

you were looking at the x-rays of their plant employees,

correct?

AYes.

QWould you have expected to see any asbestos disease?

AOnly on an unusual case would it have occurred.

QWhy is that?

AThe latency with those dust controls instituted from, you know,

from when they started, when Dr. Vorwald set it up. The
 218

latency would have been twenty to thirty years.

QI'm going to show you what was marked as Owens-Illinois Exhibit

No. 8, which was your American Cancer Society grant

application.

AYes, sir.

QIs that a true and correct copy of your grant application,

as submitted in September of 1954?

AIt seems so. I have no means to check it. It seems to be

complete.

MR. PYLE: I offer that into evidence,

Your Honor, as the next Plaintiff's numbered exhibit.

I am not sure what that number is. I can check by the

end of the day.

MR. SCHACHTMAN: Your Honor, I'll offer OI-1

through 15 into evidence, all of them.

MR. PYLE: I am only going to focus

on this at this point, so that's fine.

THE COURT: All right.

BY MR. PYLE:

QWhat was the reason that you did, in fact, get this grant?

What was it that you were trying to study?

ATrying to find out in this paper and through this study, whether

asbestos causes cancer by the mechanism of the

 219

carcinogenicity, or whether you have to have an intermedial

disease called asbestosis.

Secondly, whether the cancer-causing ability

could be increased or decreased by the current exposure

to other substances.

And, thirdly, where the different types of

asbestos have different degrees of carcinogenicity.

QIf you look at page, it looks like 4 (b).

AB, like in --

QB as in B, Appendix 4 (b).

AYes.

QIt is called Plan of Attack. Do you see that?

AYes.

QThe last sentence of that states, "The statistical results

of this proposed study will be compared with data already

accumulated in the Saranac Laboratory and should assist

materially in elucidating the question of the relative

carcinogenicity of different types of asbestos fibers."

Did I read that correctly?

AYes, sir.

QWhat you were trying to tell the American Cancer Society is

you had and what you wanted to add to the literature by

the study?
 220

AWell, if the fibers could be proven in a numerical fashion

to produce asbestosis and cancer, but mainly cancer,

because this was a cancer study, different rates that would

give the manufacturers a choice so they could use if they

have to use asbestos to at least or less carcinogenic.

QWas the subject of the different fiber types explored at the

1964 conference?

AIt was part of the discussion, yes.

QAnd did you present any discussion about the asbestos fiber

type known as tremolite?

AYes.

QWhat was it you talked about at that time as it was published?

AI said the tremolite is carcinogenic.

QYou were asked some questions about a presentation you made

concerning talc. What is talc?

AWell, talc in theory should be either vegetable talc, in other

words cornstarch, orris root, or it should be made from

a mineral called magnesium silicate, which is non-fibrous.

It has been ground to a very fine powdery state and then

that is called talc.

QAnd what is it about talc -- you talked about talc back in

1964 as well, did you not?

AYes.
 221

QNow, what is it about talc that gave you cause for concern?

AThe fact that talc is very similar to chrysotile and some talc

is fibrous, and if it is fibrous rather than crystalline,

that poses the risk of carcinogenicity.

QMr. Fournie had asked you some questions at the beginning of

his questions as to new insulation being cleaner than

tear-out work.

AI didn't get all of your sentence.

QIs new insulation of asbestos-containing insulation product

cleaner work than tear-out of old, used asbestos

insulation?

AYes. I think my answer was yes, it is.

QDo you mean to tell this Jury that the insulation of new asbestos

products is clean work?

MR. HAUSHALTER: Objection, leading.

THE COURT: Rephrase your question.

BY MR. PYLE:

QDoctor, because tear-out is dirtier than new insulation, is

new insulation clean work in terms of asbestos exposure?

AWell, what is meant by the statement clean, cleaner, is that

the risk to the person is presumed to be quantitative.

In other words, the more dust you breathe, the

sooner you become sick. Well, more certainly you'll

 222

become sick in a certain time span, so if a product produces

less dust while you work with it, then in that sense that

product is a better product, but it is not a safer product

because it can still cause disease.

As long as it produces dust, if it is asbestos,

then it is still a disease, a product with a disease

potential, but in comparison with some other product, it

may be a better product, and that is what is meant by the

concept.

QWhen you were looking for substitutes for asbestos while

employed by Dupont, were you only working with Dupont-made

products, or were you looking world-wide?

ANo, I had a study going on, twenty-four different varieties

of submicron amorphous-silica products, which are all

insulating materials, to see if they could take the place

for the many mechanical uses that asbestos had been

introduced to; and to a large extent I found quite a large

number of them that was suitable insulation materials.

They are not fibrous.

Remember the molecular particles I said, they

keep distances between themselves because of their

electromagnetic charges on the surfaces, and those are

excellent insulating materials and they are used in many,

 223

many applications.

The fiber statisicant study was to see whether

those applications where asbestos had been used for because

of its fibrousness, whether another fiber could be found,

and I started with a fibrous potassium titanate because

it is easy to make into fibers, and that didn't work out

well because it was a dangerous material and it just got

started on ceramic fibers and then my work stopped.

QDoctor, into the two letters that were introduced, Plaintiff's

Exhibit 51 and 53, do you talk to Owens-Corning about

asbestos and its comparison to fiberglass?

AYes. It is stated somewhere in the back.

QAll right.

AIn the second page or the last page.

QAre animal studies a necessary part of the medical and

scientific investigation?

AI think so.

QAnd why is that?

AWell, they save human lives. You can predict from an animal

study what is likely to happen with human studies.

And, in fact, there is a law now that in America

that all products sold that are under jurisdiction of the

American Food and Drug Administration must be tested by

 224

animal, animals, and if any cancer affects the animal,

they are forbidden to be on the market.

QAre asbestos miners exposed to one hundred percent asbestos

in the course of their work?

ANo, by no means.

QWhy not?

AThe mining process, the asbestos occurs in the form of the

seam. The seam may be as fat as this book, or it may be

as fat as that, but it is never a room or a chamber full.

To get at it, they have to bring machinery into the rocks

and cut out a portion of the rock on either side the way

a sandwich is made with the butter between the loaves of

bread. They have to take the bread out along the butter,

even though you are only after the butter.

And that is their process. So about eighty

percent of the dust that is created during the mining

procedures and the crushing of the rocks is from

non-asbestos dust.

So that's about the only exposure. In fact,

they have left asbestos exposure than millers and people

getting finished products as the product is refined and

becomes asbestos, commercial asbestos. It is the asbestos

context slowly rise up until at the end of the milling

 225

process it is one hundred percent asbestos, but there

nobody breathes it because it is all enclosed with tubes

and pipes and humans aren't mixed in with it.

QHave you been to the mines and the mills in Canada where they

mine asbestos?

ASouth Africa and Canada.

QWhen was the first time you went to a Canadian asbestos mine?

A19 -- the end of 1949.

QAnd who did you go with?

AHum?

QWith whom did you go? Why did you go there?

ADr. Lanza sent me there.

QAnd did you observe the operations where the miners and the

millers did their jobs?

AYes, sir.

QWas there any artificial ventilation and dust control systems

in place at that time?

ATremendous systems for evacuating the dust into trapping

mechanisms, barriers, glass barriers. Everybody was, if

you sent a car in, you would have glass panels like that

one behind us there so that dust from there wouldn't come

in here and so forth. Excellently done.

QAre textile workers exposed to one hundred percent asbestos

 226

fibers?

ANo, only at the loading dock where they put it from a bag,

you know, that comes out of a wagon or some supply source

into the loading. That's the point which there may be

one hundred percent exposure, but those people are made

to wear respirators, and they are in vacuum-controlled

areas, and then as it blends in with other materials and

the asbestos is diluted --

MR. HAUSHALTER: I object and move to strike

on the basis there is no time frame established for any

of this testimony. We don't know if the doctor is talking

about 1991, 1950 or 1930; and since we know that the

standards and procedures have changed over the last fifty

years, all of this testimony is inadmissible and

irrelevant.

THE COURT: He just said he was talking

about whether he went to the mines in 19 -- what was it,

1949?

THE WITNESS: '49, sir.

MR. HAUSHALTER: No, Your Honor. The

question after that which were in relationship in general

to what asbestos textile workers were in contact with.

MR. PYLE: I will rephrase the

 227

question, Your Honor.

BY MR. PYLE:

QAs of 1939 when Dr. Dreessen reported his work on the textile

workers in the Carolinas --

AYes, sir.

Q-- were those workers exposed to one hundred percent asbestos

fiber?

AThey were supposed to -- the way I just described it, that's

where I get my information. That's where I got my

information from, Dr. Dreessen.

QMr. Haushalter asked you some questions about an article that

appeared in the Journal of the American Medical

Association. What is that journal?

AThat's a journal that goes to, in those days, many years ago,

it was a freebie that went to all doctors.

Q And I believe the journal article was one of the journals

that's part of the American Medical Association.

Do you know whether or not the Journal of the

American Medical Association at any time prior to 1950

had discussed the issue of asbestos and cancer?

AYes. There was a major paper in '49, an editorial.

QWhat was that?

AAnd that was an editorial written for the information of all

 228

the doctors in this country stating emphatically that

asbestos exposure leads to cancer with certainty and that

all cases of cancer found in persons who had asbestosis

should be considered to be caused by the asbestos.

QAnd who wrote that editorial?

ADr. Hueper.

QWho was Dr. Hueper?

ADr. Hueper was at that time the Chief of the Federal

Government's Cancer Institute Section on Environmental

Cancer.

QDoctor, you expressed some reservations I think about Dr. Braun

and Dr. Truan's report in 1958.

AYes, sir.

QWhat are those reservations?

AThe reservations is the way that paper is written. People

reading it could be misled if they didn't read the words

carefully.

Dr. Braun is a very precise man, and when he

wrote his paper, he specified that this is a study of the

incidence of cancer in working asbestos miners. He didn't

say this is the last word on whether asbestos causes cancer

because Dr. Braun knew me. He knew Dr. Vorwald. He had

a man working under him, Dr. Gross, and between the three
 229

of us we had a hundred cases of cancer from that source.

And Dr. Braun only quoted nineteen cases, which

were the people, the cases that were in the working miners

of those 6,000 working miners. That didn't include the

one hundred that had died already that we knew.

QAnd what did Saranac have at the time of the publication of

this report as related to asbestos miners?

AAn enormous accumulation of cancer cases showing a specific

relationship between asbestosis and cancer from Canada.

QDr. Schepers, you were asked by one or more of the lawyers

about how many times you have been asked to give testimony

over the last twelve, thirteen years now?

AYes, sir.

QAnd you've been in a Courtroom like this over a hundred times?

AYes, sir.

QWhen you were asked to give a deposition, that is testimony

outside of a Courtroom, who is it that usually asks you

to come forward and be asked questions?

AAbout ninety percent of the time it is the Defense attorneys

that want my depositions.

QHow old are you, sir?

ASeventy-eight.

QWhy is it that you still do this at your age?

 230

AIt is interesting, but I think it has given me a humanitarian

purpose if I can contribute as long as I feel I can

contribute something to the understanding of this horrible

disease, I'll continue.

MR. PYLE: Thank you. I have nothing

else.

MR. SCHACHTMAN: Your Honor, I have some

follow up questions. Could I have OI-1?

MR. PYLE: It is up by the television,

I do believe.

RECROSS-EXAMINATION

BY MR. SCHACHTMAN:

QDr. Schepers, I think on redirect examination you said that

-- correct me if I am wrong -- that there were engineering

recommendations which concluded one find a substitute --

AYes.

Q-- for asbestos.

Would you show me where in that report it says

one find a substitute?

AI may have been thinking about Dr. Merewether. That was

already said that -- I don't know if they said that.

QWould you like to show me where Dr. Merewether says one find

a substitute for asbestos?

 231

AI can't do it by memory like that. That was my impression

of it.

MR. PYLE: Which one of Dr.

Merewether's many reports?

BY MR. SCHACHTMAN:

QI believe we were talking about the 1930 report. Is that what

you were talking about, the 1930 report?

AWhy don't you read it and tell me what his recommendations

are.

QWell, I am going to ask you whether he said find a substitute.

AIf he didn't say it, then I will withdraw it, because it is

such an old concept. Everybody knows that's a basic

principle of industrial medicine that if a substitute is

proven hazardous, you take it away and find a substitute.

That's just a basic principle of industrial medicine.

QNext is to control the level of exposure if you can find a

substitute?

AIf you can't find a substitute, you should then recommend

controlling the danger by the engineering methods.

QAnd Dreessen and his colleagues describe various engineering

methods that were available in 1938, right?

ASay that again.

QDreessen and his colleagues described different kinds of

 232

ventilation techniques?

AOh, yes. There's a lot of detail in here.

QAnd that was available, it would have been available to Mr.

Ryan's employer, for example?

MR. PYLE: Objection, relevance.

MR. SCHACHTMAN: Well, it was generally

available.

MR. PYLE: Objection, relevance.

MR. SCHACHTMAN: And it was the law to such

kinds of -- I am asking a different question. I will

withdraw the question, Your Honor.

BY MR. SCHACHTMAN:

QAnd it was the law to use such ventilation equipment to achieve

the enacted regulations of the threshold limit value?

MR. PYLE: Objection, relevance

again.

MR. SCHACHTMAN: Your Honor, that's right.

MR. PYLE: Delegatable duty.

MR. SCHACHTMAN: If anything, the

delegatability has to do with the reasonable expectation.

It was the law.

THE COURT: Overruled.

THE WITNESS: If it is the law, then it

 233

was the law. I am not the law.

BY MR. SCHACHTMAN:

QIn 1949 when Dr. Hueper wrote the editorial, he didn't write

it over his own name.

ANo.

QIt was an unsigned editorial?

ANo, he doesn't do that.

QAnd he talked about the causal relationship between asbestosis?

AYes.

QAnd cancer of the lung, right?

ARight.

QAnd he was rather insistent even into the '60's that it was

asbestosis and lung cancer?

AOh, yes.

QAnd he believed that if you could protect against asbestosis,

you protect against the lung cancer?

AYes.

QJust as you indicated?

AYes, sir.

QAnd in 1961 in the same journal that the unsigned Hueper

editorial appeared, there was also a, in the question and

answer column in the Journal of American Medical

Association a discussion by Dr. Rutherford Johnson about

 234

how asbestos had not been shown to be the cause of lung

cancer.

Are you familiar with that?

ANo.

QIn the same journal?

AI am not familiar with that, but I have known Ed Johnson very

well.

THE COURT: Mr. Schachtman, how is this

redirect?

MR. SCHACHTMAN: Because it is the same

journal that supposedly had published the Hueper editorial

almost two decades later. It wasn't so clear.

THE COURT: But we went over what was

in that journal before, did we not?

MR. SCHACHTMAN: No, we didn't. We didn't

hear anything about the Hueper editorial on direct

examination.

THE COURT: All right.

MR. SCHACHTMAN: This is really almost my

last question, Your Honor.

THE COURT: All right.

BY MR. SCHACHTMAN:

QDr. Schepers, very briefly, that's from the Journal of American

 235

Medical Association, April, 1961?

AOkay.

QAnd does it not discuss initially in the context of the

discussion of silicosis in cancer, it moves on to talk

about asbestosis and cancer, and it says, "Although it

is noted in an inspection in Great Britain in the American

literature there is no evidence that there is any

relationship between asbestosis and lung cancer." And

it goes on.

AWhich paragraph are you at?

AIt is the second paragraph on the left-hand side, upper part

of the first page.

AYeah, I am there, but I have to read through all of it. Well

--

QWell, first of all, --

AYou have to read the context of all of this.

QI'll go through it very quickly.

AYes.

QThat's what it says up to where I had finished reading it.

In the American literature there was no evidence that there

is a relationship between asbestosis and lung cancer, and

then it goes on to give a reason for why the difference

in the perception between the British researchers and the

 236

American researchers, right?

ARight.

QAnd it says the difference might be due to the difference in

fiber type or total dosage, is that right?

AOr other reasons.

QOr other reasons, right, but this was also in the American

literature, in the same journal that published Hueper's

editorial?

ARight.

MR. SCHACHTMAN: That's all I have.

MR. FOURNIE: I have no questions, Your

Honor.

THE COURT: Mr. Haushalter, any

questions?

MR. HAUSHALTER: No, Your Honor.

MR. YOUNG: Couldn't think of a thing,

Judge.

MR. PYLE: I have one question on I

guess that's re-redirect.

REDIRECT EXAMINATION

BY MR. PYLE:

QDr. Schepers, are there still doctors out there today in 1991

who will deny that cigarette smoking can cause lung cancer?
 237

MR. SCHACHTMAN: Objection, relevancy.

MR. PYLE: The development of the

state of art as it goes on and on and that one doctor in

the woods crying asbestosis doesn't cause anything --

MR. SCHACHTMAN: The bona fideness of my

consultant --

THE COURT: The objection is

sustained. Anything else?

Thank you very much, Doctor.

Are we up to the Thomas Deposition?

MR. PYLE: Yes, sir.

THE COURT: Members of the Jury, we

have something, the lawyers and I have to go over something

tomorrow morning, so you don't need to be here until 9:30,

but I want to see counsel at 9:00.

(Thereupon, the proceedings were concluded at

this time.)

STENOGRAPHER'S CERTIFICATE

I hereby certify that I reported in stenotype

 238

the Record of proceedings in the above-entitled matter,

and that this copy is a full, true, and accurate transcript

of my said stenotype notes.

Witness my hand this ______ day of October, 1991.

__________________________________
Official Court Reporter
 ii

W I T N E S S

Gerrit W. Schepers, M.D. Mr. Pyle

Direct-2
Mr. Schachtman
Cross-73
Mr. Fournie
Cross-163
Mr. Haushalter
Cross-187
Mr. Young
Cross-205
Mr. Pyle
Redirect-210
Mr. Schachtman
Recross-229
Mr. Pyle
Redirect-236
 iii

INDEX TO EXHIBITS

EXHIBITS IDENTIFIED OFFERED ADMITTED

Plaintiff's Exhibits:

#50 - Manual prepared by 66

Manufacturing and
Chemists' Association

#51 - Letter to Mr. Birch 53 54 54

dated 2/6/56

#53 - Letter dated 7/27/56 54 54 54

Owen-Illinois Exhibits:

OI-1 1938 Paper 85 217

OI-2 1939 Abbreviated Paper 85 217

OI-3 List of Substances 88 217

OI-4 1957 List 89 217

OI-5 Article by Dr. 92 217

Homburger

OI-6 Article by Mr. Marr, 97 217

1969

OI-7 1955 Article on 110 217

Hydrous Calcium
Silicate

OI-8 Copy of Grant Application 132 217

submitted to National
Research Council

OI-9 1955 Article by Dr. Lynch 137 217

OI-11 1963 Article by Dr. 141 217

Schepers

OI-13 1964 Report on 144 217

Asbestosis

OI-14 Copy of Presentation 151 217

given to Department of
Interior in 1973

OI-15 1976 Letter to Mr. Wren 158 217

 iv

OI-16 1978 Letter to Dr. 159

Hoeffler