Joint Appendix — Metro-North Commuter R. Co. v. Buckley

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S. |

FILED

&. DEC 12 1996

| \0

\ j .

ae CLERK

No. 96-320

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1996

METRO-NORTH COMMUTER RAILROAD COMPANY,

Petitioner.

MICHAEL BUCKLEY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

JOINT APPENDIX

SHEILA L. BIRNBAUM* CHARLES C. GOETSCH*

SKADDEN, ARPS, SLATE, CAHILL, GOETSCH &

MEAGHER & FLOM LLP DIPERSIA, P.C.

919 Third Avenue 43 Trumbull Street

New York, New York 10022 New Haven, Connecticut 06511

(212) 735-3000 (203) 777-1000

Counsel for Petitioner Counsel for Respondent

*Counsel of Record

PETITION FOR CERTIORARI FILED AUGUST 29, 1996

CERTIORARI GRANTED NOVEMBER 1, 1996

a oe ee eee

TABLE OF CONTENTS

Relevant Docket Entries - United States District Court

for the Southern District of New York

Relevant Docket Entries - United States Court of Ap-

peals for the Second Circuit

Excerpt of Trial Transcript of February 8 and Feb-

ruary 9, 1995 - Testimony of Steven

Excerpt of Trial Transcript of February 9, 1995 -

Testimony of William J. Nicholson

Excerpt of Trial Transcript of February 13 and Feb-

ruary 14, 1995 - Testimony of Michael

Selected Exhibits Admitted Into Evidence at Trial . .

Admitted and Stipulated Facts - Plain-

tiffs Exhibit 0001

OSHA Awareness Manual Student

Guide - Plaintiffs Exhibit

Page

. 593

State of New York Metropolitan

Transportation Authority Office

of the Inspector General and

State of New York Department

of Law Office of the Attorney

General - Report on Metro-

North Commuter Railroad’s

Handling of Asvestos in Grand

Central Terminal - Plaintiff's

Exhibit 4010 ......... 55 ee eeu

Environmental Health Protection Con-

sultants, Inc., Report on Asbes-

tos Abatement Study of Grand

Central Terminal - Plaintiff's

Exhibit 2403 ...........050005:

Decision of the United States District Court for the

Southern District of New York Dated March

MEE GAN SE DOH Need dade cow es

Stipulation to Supplement the Record on Appeal ....

Decision of the United States Court of Appeals for

the Second Circuit Dated April 1, 1996 ....

Decision of the United States Court of Appeals for

the Second Circuit Dated July 10, 1996 ... .

ae eee ewes ee

RELEVANT DOCKET ENTRIES

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

Michael Buckley v. Metro-North Commuter Railroad

DATE

10/27/89

12/28/89

2/9/90

5/17/90

Company, No. 89-cv-7170 (S.D.N.Y.)

NO. PROCEEDINGS

COMPLAINT filed; Summons issued

and Notice pursuant to 28 U.S.C.

636(c); FILING FEE $ 120.00 RE-

CEIPT # 1965 Jury Trial Demanded

(vb) [Entry date 02/03/92]

Notice of reassignment - to Judge

Whitman Knapp Copy of notice and

judge’s rules mailed to Attorney(s) of

record: Robin Grumet, John G.

DiPersia . (vb) [Entry date 02/03/92}

AMENDED COMPLAINT by Nicho-

las Giamona , (Answer due 2/19/90 for

Metro-North Commuter ) amending [1 -

1} complaint; Summons issued. (vb)

[Entry date 02/03/92)

Giamona’s Amendment to cmplt (vb)

[Entry date 02/03/92]

SECOND AMENDED COMPLAINT

by Nicholas Giamona , (Answer due

5/28/90 for Metro-North Commuter )

amending [4-1] amended complaint;

Summons issued. (vb) [Entry date 02/03/92]

2/7/91

4/8/91

9/19/91

1/27/93

2/14/92

THIRD AMENDED COMPLAINT by

Nicholas Giamona, (Answer due

2/18/91 for Metro-North Commuter)

amending [6-1] amended complaint ;

Summons issued. (vb) [Entry date

02/03/92]

Pitffs COMPLAINT for action 89 civ

7170-A WK (vb) [Entry date

02/03/92]

NOTICE OF MOTION by Lawrence

Brown for declaration of admissibility

of states investigative report (vb) [En-

try date 02/03/92]

NOTICE OF MOTION by Lawrence

Brown in limine regarding Metro's

response to state’s investigative report

(vb) [Entry date 02/03/92]

MEMORANDUM 1 by Metro-North

Commuter in opposition to [22-1]

motion in limine regarding Metro’s re-

sponse to state’s investigative report,

[21-11 motion for declaration of ad-

missibility of states investigative report

(la) [Entry date 02/05/92]

REPLY MEMORANDUM by Law-

rence Brown re:the action 89 civ 7170-

A (WK) regarding admissibility of

State’s investigative report (la) [Entry

date 02/18/92]

- ———-— ~~

4/10/92

5/10/93

7/20/94

8/16/94

ORDER, that the caption of this case

be changed to read as follows: Daniel

Nelson v. Metro-North Commuter

Railroad, 89 Civ. 7170-A (WK).

(signed by Judge Whitman Knapp);

Copies mailed (sc) [Entry date

05/11/93]

JOINT PRETRIAL MEMORANDUM

(ae) [Entry date 07/21/94] _

FOURTH AMENDED COMPLAINT

by _Lgwrence Brown, Nicholas

Giamona, Daniel Z. Nelson , (Answer

due 8/29/94 for Metro-North Commu-

ter) amending [18-1] amended com-

— ; Gr) [Entry

10/18/94

12/1/94

12/28/94

1/30/95

2/2/95

ANSWER by Metro-North Commuter

(Attorney Richard J. O'Keeffe) to

amended complaint; jury demand;

Firm of: O’Kentie, Kline & Lindgren

by attorney Richard J. O’Keeffe for

defendant Metro-North Commuter (kg)

Proposed Voir dire questions by Mi-

chael Buckley. (kg) [Entry date

10/19/94]

Pitff's Proposed Charges to the Jury.

(kg) [Entry date 10/19/94)

NOTICE OF MOTION by Michael

Buckley in limine No Return date.

(kg) [Entry date 12/02/94]

REPLY MEMORANDUM by Michael

Buckley re: [34-1] motion in limine

(emil)

CONSENT ORDER, substituting Siff

Rosen in place of O'Keefe, Kline &

Lindgren as counsel for Metro-North

= Judge Whitman Knapp);

Supplemental Proposed Voir dire ques-

tions by Metro-North Commuter (emil)

[Entry date 02/03/95}

Proposed Request to charge by Metro-

North Commuter (emil) [Entry date

02/03/95]

2/6/95 39

2/14/95 4]

MEMORANDUM by Michael Buckley

in opposition to Metro-North’s motion

in limine regarding not contesting

negligence (emil)

Jury trial held (emil) [Entry date

02/16/95]

Jury trial begun (dcap) [Entry date

02/15/96}

Jury trial held (emil) (Entry date

02/16/95}

Jury trial held (emil)[Entry date

02/16/95)

Jury trial held (emil) [Entry date

02/16/95}

Jury trial held (emil) [Entry date

02/16/95]

NOTICE OF MOTION by Michael

Buckley in limi ling pltff's

Metro-North attendance records, Re-

turn date not indicated. (emi!)

NOTICE OF MOTION by Michael

Buckley in limi ling discl

of surveillance information and photo-

graphs Return, date not indicated. (emi)

2/14/95

3/15/95

3/21/95

MEMORANDUM by Michael Buckley

in opposition to motion for directed

verdict or for judgment as a matter of

law (emil)

Jury trial held (emil) [Entry date

02/16/95]

Jury trial concluded (deap) [Entry date

02/15/96}

MEMORANDUM OPINION #74438,

This is a case brought under the Feder-

al Employers Liability Act by one of

the "snowmen of Grand Central Termi-

nal” for negligent infliction of emo-

tional distress caused by deft Metro-

North’s negligent exposure of pltff to

asbestos from June of 1985 to early

September 1987. Because deft had

conceded negligence, the only issues at

trial were causation and damage. At

the close of pltff’s case, deft moved

for a directed verdict. Because we

find that pltff failed to prove that he

had sufficient impact w/ asbestos to

result in a reasonable fear of develop-

ing an asbestos-related disease; and

because he failed to prove that he had

suffered a real emotional injury, we

grant deft’s motion and direct a verdict

in it favor ( Signed by Judge Whitman

Knapp ); Copies mailed. (emil)

JUDGMENT that deft’s motion for a

directed verdict is granted. The com-

4/5/95

4/19/95

5/9/95

6/12/95

7/14/95

plaint is dismissed for the reasons

stated in the Court’s Opinion and Or-

der, dated 3/15/95 (Parkison, J.,

Clerk); Mailed copies and notice of

right to appeal. (emil) [Entry date

03/22/95]

Transcript of record of proceedings

filed for dates of 2/6/95 (emil)

NOTICE OF APPEAL by Michael

Buckley ; from [44-1] judgment order

. Copies of notice of appeal mailed to

Attorney(s) of Record: William

Ballaine - (em) [Entry date 04/24/95]

Transcript of record of

filed for dates of Feb. 7, 8, 9, 1995

(emil) [Entry date 05/10/95]

Transcript of record of

filed for dates of Feb. 13, 14, 1995

(emil) [Entry date 05/10/95]

STIPULATION and ORDER, to sup-

plement the record on appeal (signed

by Judge Whitman Knapp ). (emil)

[Entry date 06/13/95]

Notice that the record on appeal has

been certified and transmitted to the

U.S. Court of Appeals: [46-1] appeal

by Michael Buckley (rg) [Entry date

07/18/95]

RELEVANT DOCKET ENTRIES

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Michael Buckley v. Metro-North Commuter Railroad

DATE

4/26/95

5/31/95

6/1/95

Company, No. 95-7399 (2d Cir.)

PROCEEDINGS

Copy of district court docket entries and

notice of appeal on behalf of Appellant Mi-

chael Buckley filed. [95-7399] Form C due on

5/1/95. Form D due on 5/1/95. (cv71)

Appellant Michael Buckley Form C filed, with

proof of service. [95-7399] Form C deadline

satisfied. (cv71)

Appellant Michael Buckley Form D filed, with

proof of service. [95-7399] Form D deadline

satisfied. (cv71)

Appellant Michael Buckley AMENDED Form

C, filed, with proof of service. (cv71)

Appellant Michael Buckley AMENDED Form

D, filed with proof of service. (cv71)

Notice of appearance form on behalf of Wil-

liam G. Ballaine, Esq., received. (Orig. to

Calendar) (in06)

The CAPTION PAGE for this appeal has been

AMENDED. (cv71)

6/9/95

6/21/95

7/14/95

7/21/95

8/22/95

11/17/95

12/8/95

New scheduling order number #2 filed. New

record on appeal due date is 6/30/95. New

appellant’s brief due date is 7/7/95. New

appellee’s brief due date is 8/7/95. New

argument week as early as 8/28/95. (FS)

(cv70)

New scheduling order number 3 filed. New

record on appeal due date is 7/14/95. New

appellant’s brief due date is 7/21/95. New

appellee’s brief due date is 8/21/95. New

argument week as early as 9/11/95. [FJS]

(cv71)

Record on appeal index in lieu of record filed.

(cv74)

Appellant Michael Buckley brief FILED with

proof of service. (cv78)

Appellant Michael Buckley joint appendix

filed w/pfs. Number of volumes: 1. (cv78)

Appellee Metro-North Commuter brief filed

with proof of service by mail 8/21/95. (cv70)

Letter received from atty W. Ballaine dated

11-10-95 informing the court of his new

address. (cv71)

Case heard before FEINBERG, OAKES.

CALABRESI CJJ. (TAPE: #97+98) (ca95)

12/12/95

12/13/95

12/18/95

4/1/96

4/8/96

4/15/96

Letter from counsel for the appellee METRO

NORTH COMMUTER RAILROAD request-

ing Judge Calabresi to recuse himself received

(imc)

Letter from counsel for appellant MICHAEL

BUCKLEY in response to appellees letter

dated 12/12/95 received (Imc)

Letter received from counsel for appellees, in

reference to appellant’s letter. cc: panel.

(cv70)

Judgment of the Southern district court is

VACATED & REMANDED by published

signed opinion filed. (JLO) [95-7399] (cv71)

Judgment filed. (cv71)

Appellee Metro-North Commuter motion to

extend time to file petition for rehearing until

4-22-96 FILED (w/pfs). [783714-1] (to AA)

(cv71)

Notice of appearance form on behalf of Sheila

L. Birnbaum, Esq., received. (Orig. to Calen-

dar) (in01)

Appellee Metro-North Commuter defective

petition for rehearing filed. Notice sent to

party to correct by 4-29-95. Problem: petition

includes district court decision. (cv71)

4/19/96

4/22/96

4/23/96

7/10/96

7/16/96

suggestion for rehearing in banc [783714-1

by Appellee Metro-North Commuter, until

Appellee Metro-North Commuter Petition for

rehearing, petition for rehearing in banc

[790251-2] with proof of service filed. (cv71)

Order FILED DENYING petition for RE-

HEARING [790251-1] by Appellee Metro-

North Commuter, endorsed on motion

4/23/96. , DENYING petition for rehearing in

banc [790251-2] by Appellee Metro-North

a gn endorsed on motion dated 4/23/96.

cv -

Appellee Metro-North Commuter motion to

ru “y mandate FILED (w/pfs). [828769-1]

7/31/96

Order FILED GRANTING motion to stay

issuance of mandate [828769-1] by Appellee

Metro-North Commuter, endorsed on motion

form dated 7/16/96. (cv71)

AMENDED COMPLAINT

(Title omitted in printing)

JURISDICTION

l. This Court has subject matter jurisdiction in

this case pursuant to the Federal Employers’ Liability Act, 45

U.S.C. §56. Venue properly lies in this Court pursuant to 45

U.S.C. §56.

DEFENDANT

2. The defendant, Metro-North Commuter

Railroad, is a railroad corporation duly established by law,

and having a usual place of business in New York, New

York.

PLAINTIFF

3. The plaintiff, Michael Buckley is of Belle

Harbor, New York, and is employed by the defendant Rail-

road as a pipefitter.

FACTS

4. During all the times herein mentioned, the

defendant was a common carrier engaged in the business of

interstate commerce, and as such operated a railroad in such

i between New York, New York, and New Haven,

Connecticut.

5. At the time the plaintiff received the injuries

complained of, he was employed by the defendant Railroad.

6. At the time the plaintiff received the Injuries

complained of, the defendant Railroad was engaged in

interstate commerce and the plaintiff was employed in

furtherance of said commerce.

oe ee te es

present, the plaintiff was engaged in his duties

smaplones ol or hues Cound Conmal Teraiaal, Mow York

which yards, buildings, tunnels, pipes, wires, rooms, ceilings,

walls, service plant, and all other facilities and structures

appurtenant thereto were owned and/or operated and/or

controlled and/or maintained by the defendant Railroad.

8. By no later than 1985 the defendant Railroad

obtained actual or constructive notice of the danger presented

by the presence of asbestos in Grand Central Terminal and

the threat that working with or around asbestos posed to the

health and welfare of its employees, including the plaintiff.

AS AND FOR A FIRST CAUSE OF ACTION

9. The plaintiff adopts by reference and realleges

each and every allegation set forth in paragraphs | through

8 of this Complaint with the same force and effect as if set

forth under this cause of action.

10. From at or about June 1985 to June 1988, the

defendant Railroad, and its agents, servants, or employees,

failed to use reasonable care to provide the plaintiff with a

safe place to work in that:

a. it failed to adequately pe en pee

train, and supervise the plainuff regarding exposure to

handling of hazardous materials, including but not limited to

asbestos,

c. it failed to adequately test for and to moni-

tor levels of hazardous materials, including but not limited to

asbestos;

d. it failed to properly collect and dispose of

hazardous materials, incl-iding but not limited to asbestos:

€. it failed to demarcate asbestos work areas;

f. it failed to limit access to asbestos work

areas;

: g. it failed to provide warning signs demar-

cating asbestos work areas;

h. it failed to ensure that asbestos waste did

not accumulate on the floor or fall to the floor in employee

work areas;

i. it failed to provide the plaintiff with laundry

Services SO as to ensure that he did not carry toxic and

carcinogenic materials such as asbestos out of the workplace

11. From at or about June 1985 to June 1988 the

defendant Railroad, and its agents, servants, or employees,

failed to use reasonable care to provide the plaintiff with safe

and suitable tools, appliances, and equipment in that:

a it failed to provide the plaintiff with proper

and adequate respirators, suits, boots, and hoods so as to

protect him from the dangers of working with or near

asbestos; and

b. it failed to provide the plaintiff with laun-

dry facilities and/or laundry equipment so as to ensure that he

did not carry toxic and carcinogenic materials such as

asbestos out of the workplace and into his home.

13. pce cos = Meer natal

physical contact with harmful amounts of hazardous material,

including but not limited to asbestos, such that on repeated

asbestos fibers and asbestos-containing dust and on repeated

occasions he wore asbestos-coated clothing out of the

14. Asa result of the defendant Railroad's negli-

gence, the plaintiff was forced to inhale and/or ingest into the

tissue of his lungs and body harmful amounts of hazardous

materials, including but not limited to asbestos, asbestos-

15. Asaresult of the plaintiff s exposure to asbes-

tos, the plaintiff has suffered an invasion of asbestos fibers

process in his lung tissue and body, setting in motion an

to developing clinically diagnosed asbestosis, lung cancer, or

other asbestos-related disease or illness.

16. Asaresult of the plaintiff's exposure to asbes-

tos, the plaintiff has suffered an invasion of asbestos fibers

process in his lung tissue and body, setting in motion an

in a clinically diagnosed condition of asbestosis, lung cancer,

or other asbestos-related disease or illness.

17. Asaresult of the plaintiff's exposure to asbes-

tional distress and anxiety due to the possibility and/or proba-

bility of contracting asbestos-related diseases and illnesses,

Including but not limited to asbestosis and lung cancer.

18. Asaresult of the plaintiff's exposure to asbes-

tos, the plaintiff has and will in the future incur medical

expenses for the testing and monitoring of his medical

condition related to his exposure to harmful amounts of

hazardous materials, including but not limited to asbestos.

19. _ As of the filing of this Complaint, the physical

process set in motion by the scarring of the plaintiff's lung

tissue and body has not progressed to the point of a clinically

d.agnosed condition of asbestosis, lung cancer, or any other

asbestos-related disease or illness, and by the filing of this

Complaint the plaintiff is not ‘bringing a cause of action or

claiming damages for the actual clinically diagnosed condi-

tion of asbestosis, lung cancer, or other asbestos-related

disease or illness. The plaintiff is not seeking any damages

for any clinically diagnosed condition of asbestosis, lung

cancer, or other asbestos-related disease or illness which may

occur in the future as a result of the defendant's negligence.

AS AND FOR A SECOND CAUSE OF ACTION

20. The plaintiff adopts by reference and realleges

each and every allegation set forth in paragraphs | through

19 of this Complaint with the same force and effect as if set

forth under this cause of action.

21. The defendant Metro-North Commuter

Railroad is governed by and subject to workplace safety and

health standards pursuant to the Occupational Safety and

Health Act (OSHA), 29 U.S.C. §651 et seg.

22. OSHA regulations limit the amount of -sbestos

fibers to which a worker may be exposed, specify detailed

procedures for measuring exposure, and require the use of

practices and equipment to protect workers, 29 CFR

§§1910.1001, 1926.58.

23. The State of New York, through its Depart-

ment of Labor, has adopted the OSHA relations for the

purposes of New York’s workplace safety and health laws,

Labor Law 27-a; 12 NYCRR §800.

24. The Federal Railroad Administration has no

regulations concerning asbestos, and has declared that OSHA

standards regarding environment exposure to asbestos

explicitly apply to railroads and railroad employees, 43 Fed.

Reg. 10583-10589 (1978).

25. From at or about June 1985 to June 1988, the

defendant Metro-North Commuter Railroad ordered the

plaintiff to perform work in violation of the applicable OSHA

and New York State Department of Labor asbestos regula-

tions, including but not limited to the following:

gram requirements, including but not limited to New York

State’s "Right To Know" program, New York Labor Law

§875 et seq.;

d. proper collection and disposal of asbestos:

¢. demarcation of asbestos work areas:

a we. limiting access to asbestos removal areas to

g. _

oon providing warning signs demarcating

h. dealing properly with protective clothing:

i. insuring that asbestos waste did not fail to

or accumulate on the floor.

28. The defendant Metro-North Commuter

Railroad’s violations of the above-enumerated statutes and

regulations (including but not limited to New York State’s

"Right To Know" law) contributed to the plaintiff's harmful

contact with and exposure to asbestos materials, and the

plaintiff cannot be held to have been guilty of any contrib-

utory negligence pursuant to 45 U.S.C. §53.

29. As a result of the defendant Railroad’s

violations of the above-enumerated statutes and regulations,

the plaintiff was forced to inhale and/or ingest into the tissue

of his lungs and body harmful amounts of hazardous materi-

als, including but not limited to asbestos, asbestos-containing

30. As a result of the defendant Railroad’s

violations of the above-enumerated statutes and regulations,

the plaintiff has suffered an invasion of asbestos fibers into

his lung tissue and body that has initiated a scarring process

in his lung tissue and body, setting in motion an injurious

physical process that renders him more susceptible to

developing clinically diagnosed asbestosis, lung cancer, or

other asbestos-related disease or illness.

31. As a result of the defendant Railroad’s

violations of the above-enumerated statutes and regulations,

the plaintiff has suffered an invasion of asbestos fibers into

his lung tissue and body that has initiated a scarring process

in his lung tissue and body, setting in motion an injurious

physical process that more likely than not will result in a

clinically diagnosed condition of asbestosis, lung cancer, or

other asbestos-related disease or illness.

32. As a result of the defendant Railroad's

violations of the above-enumerated statutes and regulations,

the plaintiff has and will suffer mental anguish and emotional

distress and anxiety due to the possibility and/or probability

of contracting asbestos-related diseases and illnesses, includ-

ing but not limited to asbestosis and lung cancer.

33. As a result of the defendant Railroad’

violations of the above-enumerated statutes and regulations

the plaintiff has and will in the future incur medical expenses

for the testing and monitoring of his medical condition

related to his exposure to harmful amounts of hazardous

materials, including but not limited to asbestos.

Complaint the plaintiff is not bringing a cause of action or

claiming damages for the actual clinically diagnosed condi-

tion of asbestosis, lung cancer, or other asbestos-related

disease or illness. The plaintiff is not seeking any damages

for any clinically diagnosed condition of asbestosis, lung

cancer, or other asbestos-related disease or illness which may

oceur in the future as a result of the defendant’s violations of

the above-enumerated statutes and regulations.

AS AND FOR A THIRD CAUSE OF ACTION

35. The plaintiff adopts by reference and real

cach and every allegation set fofth in paragraphs 1 tough

34 of this Complaint with the same force and effect as if set

forth under this cause of action.

Railroad was the employer of the plaintiff and as such

exercised actual authority over the plaintiff with the power to

37. As the employer of the plaintiff, the defendant

Railroad owed the plaintiff the legal duty under the FELA to

exercise due care and diligence in providing the plaintiff with

a reasonably safe place to work.

38. Despite the defendant sen ats of and

knowledge regarding the health hazards y expo-

sure on employees to asbestos in Grand Central Terminal,

the Railroad nevertheless ordered the plaintiff on repeated

occasions from June of 1985 to June of 1988 to perform

work which it knew exposed him to harmful amounts of

asbestos.

39. The defendant Railroad was in a position to

rectify such exposure of its employees to asbestos in Grand

Central Terminal but failed to do so based on pecuniary

considerations.

40. The defendant Railroad’s deliberate disregard

for the health and welfare of the plaintiff constitutes extreme

and outrageous conduct within the meaning of Section 46 of

the Restatement (Second) of Torts.

41. By its extreme and outrageous conduct in

deliberately disregarding the health and welfare of the

plaintiff, the defendant Railroad has recklessly caused the

plaintiff to suffer severe emotional distress, including but not

limited to mental suffering, mental anguish, fright, horror,

grief, shame, anger, worry, and fear of the future.

42. Asaresult of the defendant Railroad’s extreme

and outrageous conduct, the plaintiff was exposed to danger-

ous amounts of health-threatening, life-threatening, toxic,

and/or carcinogenic materials, including, but not limited to,

asbestos, asbestos-containing materials, and asbestos-related

materials.

43. Asaresult of the defendant Railroad’s extreme

and outrageous conduct, the plaintiff repeatedly was impacted

by and came into physical contact with harmful amounts of

hazardous material, including but not limited to asbestos,

such that on repeated occasions his face, skin, and clothes

visibly were coated with asbestos fibers and asbestos-contain-

ing dust and on repeated occasions he wore asbestos-coated

clothing out of the workplace and into his home.

44. Asaresult of the defendant Railroad’s extreme

and outrageous conduct, the plaintiff was forced to inhale

and/or ingest into the tissue of his lungs and body harmful

amounts of hazardous materials, including but not limited to

asbestos, asbestos-containing materials, and asbestos-related

materials.

45. Asaresult of the defendant Railroad’s extreme

and outrageous conduct, the plaintiff has suffered an invasion

of asbestos fibers into his lung tissue and body that has initi-

ated a scarring process in his lung tissue and body, setting in

tion an injurious physical process that renders him more

susceptible to developing clinically diagnosed asbestosis, lung

cancer, or other asbestos-related disease or illness.

46. Asaresult of the defendant Railroad’s extreme

and outrageous conduct, the Plaintiff has suffered an invasion

of asbestos fibers into his lung tissue and body that has

initiated a scarring process in his lung tissue and body,

setting in motion an injurious physical process that more

likely than not will result in a clinically diagnosed condition

of asbestosis, lung cancer, or other asbestos-related disease or

illness.

47. Asaresult of the defendant Railroad’s extreme

and outrageous conduct, the plaintiff has and will suffer

mental anguish and emotional distress and anxiety due to the

ibility and/or probability of contracting asbestos-related

pine and illnesses, including but not limited to asbestosis

and lung cancer.

48. Asaresult of the defendant Railroad's extreme

and outrageous conduct, the plaintiff has and will in the

future incur medical expenses for the testing and monitoring

of his medical condition related to his exposure to harmful

amounts of hazardous materials, including but not limited to

asbestos.

49. _ Asof the filing of this Complaint, the physical

process set in motion by the scarring of the plaintiff's lung

tissue and body has not progressed to the point of a clinically

diagnosed condition of asbestosis, lung cancer, or any other

asbestos-related disease or illness, and by the filing of this

Complaint the plaintiff is not bringing a cause of action or

claiming damages for the actual clinically diagnosed condi-

tion of asbestosis, lung cancer, or other asbestos-related

disease or illness. The plaintiff is not seeking any damages

for any clinically diagnosed condition of asbestosis, lung

cancer, or other asbestos-related disease or illness which may

occur in the future as a result of the defendant’s extreme and

outrageous conduct.

WHEREFORE, the plaintiff Michael Buckley de-

mands judgment against the defendant Railroad in the sum of

One Million Dollars, plus all applicable interest and costs.

Dated: New Haven, Connecticut

August 16, 1994

(Jurat omitted in printing)

ANSWER TO AMENDED COMPLAINT

(Title omitted in printing)

The defendant, METRO-NORTH COMMU-

TER RAILROAD, by its attorneys, O’7KEEFFE, KLINE &

LINDGREN, answering the Complaint of the plaintiff, state

upon information and belief:

1. As to the allegations of Paragraph "5" of the

Complaint, defendant denies that the plaintiff received any

physical or emotional injury compensable under the Federal

Employers Liability Act.

2. As to the allegations of Paragraph "6" of the

Complaint, defendant denies that the plaintiff received any

physical or emotional injury compensable under the Federal

Employers Liability Act.

a As to the allegations of Paragraph "7" of the

Complaint, defendant denies that it "owned" or "controlled"

the structures referred to therein.

4. As to the allegations contained in the Para-

graph of the Complaint numbered "8", the defendant denies

that asbestos in Grand Central Terminal presented any danger

to the plaintiff and the defendant further denies that working

with or around asbestos posed any threat to the health and

welfare of the plaintiff. *

AS TO THE FIRST CAUSE OF ACTION

5. As to the allegations of Paragraph "9" of the

Complaint the defendant, repeats, reiterates and realleges each

and every denial to the Paragraph of the Complaint numbered

"1" through "8", set forth above, with the same force and

effect as if fully set forth hereat.

6. As to the Paragraph of the Complaint num-

bered "10", the defendant denies that it failed to provide the

plaintiff with a safe place to work; defendant further denies

the allegations designated "10 a" through "10 h"; defendant

admits so much of Paragraph "10 i" as alleges that the defen-

dant did not provide plaintiff with laundry services, but spe-

cifically denies any obligation or necessity to do so.

7. As to the Paragraph of the Complaint num-

bered "11", the defendant denies that it failed to use reason-

able care to provide the plaintiff with safe and suitable tools

and appliances, and equipment; the defendant denies the

allegations of Paragraph "11 a" of the Complaint, defendant

admits so much of Paragraph "11 b" of the Complaint that al-

leges it did not provide the plaintiff with laundry facilities

but denies any obligation or duty to do so.

8. The defendant denies each and every allegation

contained in the Paragraphs of the Complaint designated

"12", "13", "14", "15", "16", "17" and "18".

9. As to the Paragraph of the Complaint num-

bered "19", the defendant denies that the plaintiff has sus-

tained any scarring to his lungs, denies the existence of any

physical process allegedly set in motion by the scarring and

specifically denies any “unclinically" diagnosed condition of

asbestosis, lung cancer, or any other asbestos related disease

or illness which the pleadings infer the plaintiff may be

suffering from at the time of the filing of the Complaint,

defendant further avers that the conclusory allegations in the

remainder of the Paragraph "19" of the Complaint are an at-

tempt to split a cause of action, if such cause of action exists.

AS AND FOR A SECOND CAUSE OF ACTION

19. As to the paragraph of the Complaint num-

bered "20", the defendant repeats, reiterates and realleges

each and every denial to the Paragraphs of the Complaint

numbered "1" through "19", set forth above, with the same

force and effect as if fully set forth hereat.

11. As to the Paragraph of the Complaint num-

bered "21", the defendant denies that it is governed and sub-

ject to all portions of the Occupational Safety and Health Act

(OSHA), 29 USC Section 651 et al; defendant reserves the

right to admit or deny specific portions of OSHA which

plaintiff may assert are applicable to the present action.

12. _ As to the allegations of Paragraph "22" of the

Complaint, defendant admits the existence of OSHA regula-

tions in general, but reserves the right to admit or to deny

such OSHA regulations as plaintiff may claim are applicable

to the present action.

13. As to the Paragraph of the Complaint desig-

nated "23" the defendant admits the existence of Labor Law

27-a; defendant reserves the right to admit or deny such por-

tions of Labor Law 27-a as plaintiff asserts are applicable to

the present action.

14. Defendant denies the allegations of Paragraph

"24" of the Complaint. sl

15. As to the Paragraph of the Complaint desig-

nated "25", the defendant denies that it ordered the plaintiff

to perform work in violation of any applicable OSHA or

New York State Department of Labor Asbestos Regulations;

defendant further denies the allegations designated "25 a"

through "25 i”.

16. As to the Paragraph of the Complaint desig-

nated "26", the defendant denics violation of any statute or

regulation relevant to tue within action; defendant specifically

denies that violation of the statutes enumerated in general by

the plaintiff in the Complaint, and the regulations enumerated

in general by the plaintiff in the Complaint constitute negli-

gence per se under the Federal Liability Employers Act.

17. Denies each and every allegation contained in

the paragraph of the Complaint designated "27".

18. Denies each and every allegation contained in

the Paragraphs of the Complaint designated "28", "29", "30",

"31", "32", and "33".

19. | Asto the Paragraph of the Complaint designat-

ed "34", the defendant denies that the plaintiff has sustained

any scarring to his lung, denies the existence of any physical

process allegedly set in motion by the scarring and specifical-

ly denies any unclinically diagnosed condition of asbestosis,

lung cancer or any other asbestos related disease or illness

which the pleadings infer the plaintiff may be suffering from

at the time of the filing of the Complaint; defendant further

avers that the conclusory allegations in the remainder of Para-

graph "34" of the Complaint are an attempt to split a cause

of action, if such cause of action exists.

AS TO THE THIRD CAUSE OF ACTION

20. As to the Paragraph of the Complaint desig-

nated "35", the defendant repeats, reiterates and realleges

each and every denial to the Paragraphs of the Complaint

designated "1" through "34", set forth above, with the same

force and effect as if fully set forth hereat.

21. Denies each and every allegation contained in

Paragraphs of the Complaint designated "36", "38" and "39".

22. As to the Paragraph of the Complaint designated

"40", the defendant specifically denies any “deliberate disre-

gard for the health and welfare of the plaintiff" and the

defendant railroad specifically denies any conduct which can

be characterized as "extreme and outrageous” and further

denies the applicability of Section 46 of the Restatement

(2nd) of Torts, to the present action.

23. Asto the Paragraph of the Complaint designat-

ed "41", the defendant denies each and every allegation con-

tained therein, and specifically denies that the plaintiff herein

has sustained any “emotional injury" compensable under the

Federal Liability Employers Act.

24. The defendant denies each and every allegation

contained in the Paragraphs of the Complaint designated

"42", "43", "44", "45", "46", "47", "48" and defendant specifi-

cally denies any extreme and outrageous conduct toward the

plaintiff, alleged in the foregoing numbered paragraphs.

25. As to the Paragraph of the Complaint num-

bered "49", the defendant denies that the plaintiff had sus-

tained any scarring to his lungs, denies the existence of any

physical process in motion by the scarring and specifically

denies any “unclinically" diagnosed condition of asbestosis,

lung cancer, or any other asbestos related disease or illness

which the pleadings infer the plaintiff may be suffering from

at the time of the filing of the Complaint; defendant further

avers that the conclusory allegations in remainder of Para-

graph "49" of the Complaint are an attempt to split a cause

of action, if such cause of action exists.

AS AND FOR A SEPARATE AND COMPLETE

AFFIRMATIVE DEFENSE TO THE FIRST,

SECOND, AND THIRD CAUSES OF ACTION

26. The facts stated in the First, Second and Third

Causes of Action of the Complaint, fail to state a cause of

ion compensable under the Federal Employers Liability

Act.

AS AND FOR A SECOND SEPARATE AND

COMPLETE AND/OR PARTIAL DEFENSE TO THE

FIRST, SECOND AND THIRD CAUSES OF ACTION

27. If the plaintiff sustained any injury as alleged

in the First, Second and Third Causes of Action, said injury

was the result of contributory negligence of the plaintiff.

AS AND FOR A THIRD SEPARATE AND

COMPLETE AND/OR PARTIAL DEFENSE TO THE

FIRST, SECOND AND THIRD CAUSES OF ACTION

28. If the plaintiff sustained any injury as alleged

in the First, Second and Third Causes of Action, plaintiff has

failed to mitigate damages in respect to the injuries claimed.

AS AND FOR A FOURTH SEPARATE AND

COMPLETE AND/OR PARTIAL DEFENSE TO THE

FIRST, SECOND AND THIRD CAUSES OF ACTION

29. The plaintiff's claim is barred in whole or in

part by the applicable three year Statute of Limitation under

the Federal Liability Employers Act.

AS AND FOR A FIFTH SEPARATE AND

COMPLETE AND/OR PARTIAL DEFENSE TO THE

FIRST, SECOND AND THIRD CAUSES OF ACTION

_ 30. The duty of the defendant to provide medical

testing and/or monitoring has been pre-empted and defined by

OSHA. Plaintiff is entitled to any damages for medical

expenses for testing and monitoring of his medical condition

for alleged exposure to hazardous materials, including alleged

expense to eeiasinn, ties Gam Geo muandited quovisions of

WHEREFORE, the defendant, METRO-

NORTH COMMUTER RAILROAD, demands judgment

disbursements of this action and for such other and further

relief as to the Court may seem just and proper.

Dated: White Plains, New York

September 28, 1994

(Jurat omitted in printing)

EXCERPT OF TRIAL TRANSCRIPT OF

FEBRUARY 8 AND FEBRUARY 9, 1995 -

TESTIMONY OF STEVEN MARKOWITZ

[206]

STEVEN MARKOWITZ, called as a witness by the plaintiff,

having been duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. GOETSCH:

Q. Are you licensed to practice medicine?

A. Yes.

Q. Whereabouts?

A. New York State.

Q. Beginning at the college level, would you tell us your

educational background?

A. I went to Yale University for college where | majored

in psychology. I then went to Columbia College of

[207]

Physicians and Surgeons, which is the medical schoo!

at Columbia, and graduated from there in 1981.

Q. Did you take an internship?

A. Yes.

P - OP re

After an internship did you take a residency?

Yes. In fact, two residencies.

Whereabouts did you do your residency?

Well, 1 did my first internship and residency at

Montefiore Medical Center in the Bronx. This was in

internal medicine. And | subsequently did a two-year

full-time residency in occupational and environmental

medicine at Mount Sinai.

Do you specialize in any particular field of medicine?

1 am board certified in internal medicine and |

specialize and am board certified in occupational

licine.

Briefly, what is internal medicine?

This is study and care of patients who are adults and

who have problems of an internal nature.

What is occupational medicine?

Occupational medicine is the study and care of

patients who have health problems or exposure at the

workplace that they are worried about and the health

problems derived from exposure at the workplace.

What does it mean to be board certified?

{208}

The professional society for a particular specialty is

called a board, and each specialty has its own board.

Are you board certified in both internal medicine and

occupational medicine?

That’s correct.

Why did you choose to specialize in the field of

occupational medicine?

Well, I thought it was interesting. | thought it would

remain interesting for the forty or more years that |

expect to practice medicine. I also thought we had an

opportunity to prevent people from getting sick; that

all workplace exposures are preventable; that we can

have an opportunity to identify new associations

between exposure and disease and thereby not just

cure people but prevent

[209]

them from getting sick at all. 1 thought that was an

exciting challenge.

Are you on the staff of any hospital?

> D2 > © >

Mount Sinai Medical Center in Manhattan.

Are you a member of any professional societies?

Yes.

Would you name some of those?

The American Public Health Association, the Amer-

ican College of occupational and Environmental

Medicine, and the New York Academy of Sciences.

Do you hold any acaderr‘c or teaching appointment?

I am full-time employed. I am associate professor at

Mount Sinai Medical School.

Does Mount Sinai School of Medicine have any

division devoted to occupational medicine?

Yes. We have a division, one of the largest in the

country, that is the division of environmental and

occupational medicine.

What is the history and standing of that division in

the field?

It has a national and international reputation. It was

begun in 1963 as the first hospital-based unit in

environmental medicine. It was started by Dr. Irving

Selikoff, the great asbestos researcher. He continued

at the helm until 1985 when he stepped down and

was replaced by

[210]

one of the top people of the National Institute for

occupational Safety and Health. We have got two

dozen full-time faculty in occupation and environ-

mental medicine, many of whom do research but also

provide patient care and teach.

What is asbestos, Doctor?

Asbestos is a natural mineral fiber.

What is the typical size of asbestos fiber in the

workplace?

It’s small. It is usually about 5 microns. It can be 10

or 20 microns in length or it can be significantly

smaller than that, 1 micron or less in length. The

width is even smaller, usually in the range of .1 to .5

micron. A micron is | millionth of a meter. A meter

is about a yard. so we are talking very, very small

fibers.

Can you give us an idea how many such fibers could

fit on the head of a pin?

It depends how big the head of the pin is, but many

fibers can fit into a very small space. Some of the

fibers are visible, the larger ones, but the smaller ones

are not visible to the naked eye and you can only

examine them with the microscope.

Do asbestos fibers have any particular aerodynamic

features?

They are long and thin. There is one kind that

[211]

is straight, another kind that is more curly, but in

general even the curly ones tend to be long and thin,

which means aerodynamically how they move in air

is that when swept up in a windstream such as when

one is breathing, they tend to enter into longitudinal

arrangement. They will be parallel to the direction of

the wind, or in this case the breath we are talking

about people breathing in asbestos fibers so that the

important and limiting quality of the asbestos in terms

of breathing it in is its width, because it doesn’t come

in sideways. It comes in lengthwise. So that the

very small width we are talking about, less than half

a micron, is what is important in terms of breathing

it in.

Are those fibers small enough so that a human being

would not necessarily recognize that you were breath-

ing asbestos fibers or feel that he was breathing

asbestos fibers?

That’s true. I mean, larger fibers might be caught up

in the mucus or in the, nasal hairs, or clumps of

fibers, but the majority of fibers will be smaller than

that and will pass right through and go directly into

the lung.

Does the field of occupational medicine include the

study of asbestos’s affect on human health?

Yes.

Have there been any scientific studies of the relation-

ship between exposure to asbestos and human health?

[212]

A. This is the most extensively studied area in occupa-

tional medicine. There have been hundreds and

hundreds of studies. There have been at least 7,000

publications on asbestos.

THE COURT: Have you memorized them all?

THE WITNESS: __No, I havea’.

Doctor, what is the relationship of the Mount Sinai

Medical Center to the study and treatment of asbes-

tos-related disease?

Well, Dr. Selikoff, whom I mentioned before, who

started our unit, began his work in the late 1950s

seeing people who had worked in an asbestos factory

in Patterson, New Jersey. He had seen people with

scarring of the lungs, called asbestosis, and with some

of the cancers of the chest. Then he began really his

lifelong devotion to the study and the documentation

of asbestos-related disease in humans. He started the

largest North American study of insulator, people who

put in the asbestos on the pipes and other places, and

that study in fact continues to this date. Dr. Selikoff

died two years ago but the study is continuing.

In addition, under Dr. Selikoff's direction we have

studied many other types of workers, including

shipyard workers, sheet metal workers, and a lot of

different construction trades.

Do you hold any administrative position at the

[213]

Mount Sinai Division of Environmental and Occu-

pational Medicine?

I have handled the residency program in occupational

medicine, so I direct the program for the physicians

who specialize in occupational medicine. We have a

consortium of units that train in all types of occupa-

tional and environmental health, including industrial

hygiene, occupational medicine, occupational health,

nursing and safety. I am the deputy director of that

consortium. I am deputy director of that division, the

basic division of occupational medicine and various

others.

Do you teach any courses in occupational medicine at

Mount Sinai?

Yes.

Are you familiar are with a governmental agency

known as NIOSH?

Yes.

What does that stand for?

It stands for the National Institute for Occupational

Safety and Health.

Have you had any involvement in NIOSH?

Yes. The funding for the educational programs

comes from NIOSH. I have worked with NIOSH in

completing a study of bladder cancer up in Niagara

Falls that occurred in a chemical factory. I am

currently doing a study of the

[214]

cost of occupational disease in the United States,

again for NIOSH.

Have you performed any professional activities in the

field of occupational medicine for state government?

Yes.

In what government activities have you done that?

In 1986, the New York State Legislature asked us to

write a report and describe the extent of occupational

disease in the state and how much it costs in terms of

health care and lost work time. This was directed by

myself and Dr. Landrum, who is head of our unit. In

1987, we issued a report talking about how many

people became ill and how many people died as a

result of asbestos exposure and many other types of

exposure in the workplace in New York State.

After we submitted that report, the state decided that

workers really didn’t have enough access to expertise

in occupational medicine and they established a

network of clinical centers throughout the state where

people can come and get an expert opinion on wheth-

er they have an occupational problem or not, whether

they have an exposure that they need worry about or

not. There are some eight clinical centers throughout

the state now and Mount Sinai is the largest one.

After the success of that, we did a similar kind

[215]

of study for New Jersey, and I was consulted on

studies in Pennsylvania and Texas with similar-type

efforts, reviewing, basically summarizing, the problem

of occupational disease in a given area.

Do you hold any governmental grants in the field of

occupational medicine?

Yes.

Have you received any awards regarding the teaching

of occupational medicine?

I have an award, actually it is a grant, from the

National Institute of Health Sciences, which is part of

the NIH, the National Institutes of Health, and that is

an award to teach medical students.

Are you a member of any editorial board of scien-

tific journals in the field of occupational medicine?

Yes.

Which one?

The American Journal of Industrial Medicine, the Ar-

chives of Environmental Health. I review articles for

Clinical Toxicology, a Mount Sinai medical journal.

And I think there is one other but I can’t recall.

Doctor, what is epidemiology?

Epidemiology is the study of how disease is distrib-

uted in groups of people, with the aim of determining

what the causes of disease are in those groups of

people.

[216]

Have you received any formal training in epidemiolo-

gy?

Yes. As part of my residency program in occupa-

tional medicine, we did a number of courses which

are equivalent to a master’s in public health. But

since finishing the residency, | have taken about eight

or nine courses in epidemiology and biostatistics up

at Columbia.

In the course of your practice of occupational medi-

cine, do you apply the principles of epidemiology on

a regular basis?

Yes.

Have you ever examined large groups of workers for

occupational disease?

Yes.

Briefly, what studies were you involved in?

I was involved with the sheet metal workers study.

These are the people who put up sheet metal

ductwork in buildings, and work near asbestos. |

examined people in the teachers study, looking at

whether teachers have been exposed to asbestos and

any of the diseases related to asbestos. | have ex-

amined school custodians and the skilled trades within

the school system to see whether they had asbestos-

related disease.

Who sponsored those studies regarding the hers

and custodians? sy

[217]

The school custodians is the New York City Board of

Education. The teachers was the Environmental

Protection Agency. The sheet metal, I think, was the

union.

Soya teach any courses in occupational epidemiolo-

gy?

Yes. We have a course at Mount Sinai for the

residents, specifically looking at the problems of

occupational and environmental epidemiology.

Have you authored articles dealing with epidemiology

in peer review journals?

Yes.

Doctor, are you aware of any danger to human health

posed by asbestos exposure?

Yes.

Have you studied that subject?

Yes.

Have you given lectures and taught courses involving

asbestos-related diseases?

> © > © ?P

2 > © ?P

Yes.

Have you published any articles in medical journals?

Yes.

Did any of those concern asbestos-related diseases”

Yes.

[218]

Which one was that?

In particular -- this is a group | forgot to mention

before we studied firefighters, New York City

they had enough exposure to asbestos to cause prob-

lems.

Did the Mount Sinai Division of Environmental and

occupational Medicine have a clinic where patients

can be examined and treated?

Yes.

Do you examine and treat patients at that clinic?

Yes, I do.

How many patients a year do you examine and treat

regarding exposure to asbestos?

Probably 30 or 40 per year now, | would say.

Have any state and federal governmental agencies

referred patients to you for asbestos-related exami-

nations?

Yes.

What state and federal agencies?

The Worker's Compensation Board within New York

State, and I believe the office for worker’s compensa-

tion

[219]

program at the federal level which takes care of

shipyard workers.

Do attorneys refer individuals to you for, asbestos-

related examinations?

Yes.

What procedures do you follow when a person is

referred to you for an asbestos-related exam?

I a lot of time talking with the patient about

as history, thttr beshth pocblome In particular, |

concentrate on their occupational history, what kind

of work they have done throughout their lifetime and

what kind of exposures are entailed. 1 perform a

physical examination. 1 order up certain tests. |

what behaviors a person can undertake to protect their

health in the future.

MR. GOETSCH: Your Honor, could we have a brief

sidebar?

THE COURT: Yes.

(At the sidebar)

MR. GOETSCH: __ The other expert who is going to testi-

fy in this case is Dr. Nicholson, and he

just came into the courtroom. His

expert opinion is going to be based in

[220]

part on Dr. Markowitz’s testimony and

opinion. They work together, and he

relies on Dr. Markowitz’s findings and

opinions as part of his. He is an ex-

pert witness. So | ask that he be al-

lowed on stay in the courtroom and

hear Dr. Markowitz’s testimony.

MR. LANDMAN: _I strongly object to that because it is

cross of the other doctor. They have

had plenty of time to work in the same

building; they have had plenty of time

to discuss the opinion. Just because he

is bringing the opinion out in front of

the jury doesn’t mean he doesn’t know

THE COURT: I will exclude him.

(In open court)

Doctor, does your procedure for examining persons

referred to you for asbestos-related disease change at

all depending on whether the individual is referred to

you by the federal government, a state government,

other medical doctors, or an intern?

None. | do the same test, ask the same questions, and

write the same report.

Doctor, do you consider yourself as having

[221]

expertise on the effect of workplace exposure to

asbestos on the health of workers?

Yes.

20 > © ?>

2 > © ?

ever been qualified as an expert witness

at we effects of asbestos exposure in the

workplace on the health of workers?

You mean in a courtroom?

Yes.

No.

Are you willing to conduct such a review and eval-

uation for asbestos as to defendant?

If it is a reasonable case, meaning if there is a reas on

able likelihood of exposure and disease, which is

same criterion I use for all potential patients.

Prior to this case, Doctor, have you over testitie’ on

behalf of a patient that my firm was representing:

No.

Prior to this case, have we ever met before?

No.

Do you have a professional fee that you charge

[222]

for the time that you spend testifying?

A. Yes.

Q. What is the amount of that fee?

A. $300 an hour.

Q. Doctor, may I ask you to explain --

THE COURT:

Are you presenting him as expert?

MR. GOETSCH: Yes, your Honor.

THE COURT:

Do you want voir dire?

MR. LANDMAN: Just very briefly, if 1 could, your Hon-

or, a couple of minutes.

THE COURT: Yes.

VOIR DIRE EXAMINATION

BY MR. LANDMAN:

Doctor, you have only written one article about asbes-

tos, isn’t that right?

One article that relates strictly to asbestos.

Doctor, you were asked some questions about your

involvement with asbestos. Why don’t you tell the

jury how it is you first got involved in being qualified

as an expert witness in asbestos litigation?

I was called, I received a phone call and was asked

whether | was willing to review a case.

Doctor, did you take any affirmative steps to actually

go out and find cases where you could review and

testify?

[223]

THE COURT: I think this is cross-examination.

MR. LANDMAN: All right. I have no problem, your

Honor, with the doctor being qualified

as a specialist in occupational medi-

cine. 1 will reserve this for cross.

That is fine, your Honor.

THE COURT: Let me tell you what all this means.

Ordinarily a witness is only allowed to

testify to what he or she saw or

smelled, heard, observed with his or

her senses in one way or another.

There are exceptions to the rule. But

everything else is called hearsay, and

you can’t testify to hearsay unless

there is some specific reason why you

are allowed to. One of those specific

reasons is if you are qualified as an

expert. When | qualify him as an

expert, which you just heard me do,

that means that he is entitled to ex-

press an opinion about facts that he is

told about, that he doesn’t necessarily

know of his own knowledge. He can

express an opinion.

The fact that I qualify him as an ex-

pert doesn’t mean that you have to

think he is an expert. But you make

your own decision about that, and then

you make your own decision about

what weight you will give to his testi-

mony.

MR. GOETSCH: Thank you, your Honor.

DIRECT EXAMINATION CONTINUED

BY MR. GOETSCH:

Q. Doctor, does asbestos exposure cause disease in

[224]

human beings?

A. Yes, it does.

Q. What are the broad categories of the type of disease

that asbestos causes?

There are two categories: one i

ig . teg is scarring and the other

Q. Are you familiar with the cancer entitled mesotheli-

oma?

A. Yes, I am.

Q. What is mesothelioma?

Mesothelioma is a cancer of the pleura, which is the

lining, the outer covering of the lung, or of the

similar kind of layer or covering of tissue that covers

the abdomen. The mesothelioma in the chest, which

is a cancer, is called pleural mesothelioma, and the

mesothelioma in the abdomen is called peritoneal

mesothelioma. The pleural mesothelioma is not the

same as lung cancer. Lung cancer is cancer of the

lung tissue, whereas pleural mesothelioma 1s a cancer

of this tissue, which is a very thin, normally very

thin, in its undiseased state, covering of the lung.

oe , , uld

Doctor, if it would assist you in explanation, wo

you refer to an anatomical model of the lung to show

us where mesothelioma cancer develops?

THE WITNESS: May I stand up to show this?

THE COURT: Sure.

[225]

This is a model showing the respiratory system. Just

to orient you, the head goes up here, and the abdo-

men and the rest of the body go down here below.

So from top to bottom, what you are looking at is the

trachea, the windpipe, where the air travels down into

the lung. There are certain parts here that are remov-

able that | am holding on. But the chest consists of

two major organs: the heart and the lungs. This

putty-looking material here is the lungs, and then

when you expose here the left side you can see the

heart, which is not relevant to mesothelioma. Asbes-

tos does not affect the heart directly.

Then we remove the other side here, the right side,

and you see the inner part of the lungs.

Now, the pleural tissue that I] mentioned, the pleura,

is a very thin Saran-wrap-like layer of tissue, which

is on the outside of the lung. They are all surfaces of

the lung tissue. So it is a lung here. It is on the right

side here. It is underneath here as well.

What is not shown just below here is the diaphragm,

the muscle below the lungs which help you breathe.

So the pleura relating to the diaphragm is between the

diaphragm and the lungs. The pleura is not inside the

lung at all; it is the covering tissue outside the lung.

It is normally very thin. In fact, you can barely

recognize it as a distinctive layer here, separate

[226]

from this pinker material which is the inside, which

is the lung tissue itself, what we call the lung pa-

renchyma. The pleura doesn’t usually become

diseased. It can become scarred or developed cancer.

The scar -- we will get into.

[227]

Is there any known cause of mesothelioma in human

beings?

Yes.

What is that cause?

Asbestos.

> Oo > © FP CO

Does smoking cigarettes cause mesothelioma cancer?

No, it does not.

Are you familiar with the term, "latency period"?

Yes.

What is a latency period?

The latency is the gap in time between exposure,

when a person receives their exposure to a toxin and

development of the disease.

Typically, with chronic diseases such as cancer, the

latency period for an environmental cancer-causing

chemical is usually 20, 30, or 40 years. That means

if you count the time when the person is first exposed

to the chemical to the time when they develop the

cancer, it is typically 20 or 30 or 40 years. A person

does not develop the problem right away. It occurs

only after a period of time. That period of time is

called latency.

What is the latency period for mesothelioma?

Mesothelioma, the average latency is 35 or 40

[228]

years, meaning on average it is that much time that

passes between the time the person is first exposed to

asbestos and when they develop the cancer.

' they

If a person is first exposed at age 30, on average

wouldn’t get the mesothelioma until age 65. Now, it

might be age 70, it might be age 60, in fact, it might

be age 45, but on average it is a long period of time.

It is 35, 40 years.

After an individual has been exposed to asbestos, does

the risk of developing mesothelioma remain level

over the years or does it increase over time?

It increases over time. You don’t see mesotheliomas

within the first few years after beginning exposure to

asbestos. You only see it after some period of

latency.

With time that risk increases so that the risk of

getting mesothelioma, say, 30 to 40 years after

exposure to asbestos is greater than, say, 15 or 20

years after first being exposed to asbestos. it in-

creases to at least 35 or 40 years.

What is the prognosis of somebody diagnosed with

mesothelioma cancer?

It is considered universally lethal. There is no good

treatment for malignant mesothelioma which is the

cancer. Most people live about a year, year-and-a-

half. A

[229]

few people live a few years but most everybody dies

from the disease unless they develop something else

in the meantime.

What are the symptoms of mesothelioma?

The presenting symptoms, meaning the initial thing

that the patient feels, is chest pain which does not go

away or shortness of breath which is severe and more

or less sudden.

What typically occurs next after those symptoms are

presented and reported to a doctor?

These

Usually, the person sees a doctor pretty soon.

aren't symptoms that are mild and they wouldn't be

ignored.

The person has a chest x-ray, a physical examination.

The physical examination will usually show -- when

they listen to the lungs with a stethoscope you will

hear abnormal sounds.

chest x-ray will show clear abnormality on one

pee tr Arg That abnormality, you

can’t tell exactly what it is from a chest x-ray. You

can tell that it is significant. You can tell usually

there is fluid in the lung which is produced by the

mesothelioma, by the cancer, but it requires further

testing to make a tissue diagnosis, to actually get

tissue and look at it under the microscope and con-

firm that it is a mesothelioma as opposed to some

other problem.

(230)

Is there any treatment for mesothelioma that is prac-

ticed?

There is no successful treatment in the sense of cure.

Various agents, pharmacological agents, chemothera-

py, are used. There are some protocols, some exper)-

ments with different agents to see what works. Some

places do some surgery, but it is really aimed at

prolonging life and improving the quality of life, if it

does that, and not really a cure of the disease because

there is no known cure.

Is mesothelioma a painful disease?

Yes, it is. The hallmark of mesothelioma is chronic.

persistent pain in the chest and severe shortness of

breath and it is considered, even for a cancer. an

especially wasting kind of cancer. The person loses

a lot of weight and it is a dramatic kind of thing;

more dramatic than most cancers.

Have there been any case studies of workers that

developed mesothelioma from asbestos exposure in

the workplace?

Yes, many studies.

What is the range of workplace exposure that is

causally related to mesothelioma?

Most studies have not measured the amount of

asbestos in the air. That typically wasn't done

historically and we don’t have good information about

that.

(231]

What we have are descriptions of how long people

worked in a given trade and what kind of exposure

they had.

Mesothelioma, of all the asbestos-related diseases, is

considered the one which requires the least amount of

exposure, such that a period of months or a few years

would be sufficient to produce the mesothelioma or a

relatively lowe: level of asbestos exposure would lead

to this disease, say, compared to the scarring of

asbestosis.

Is there clinical evidence of workers developing

mesothelioma from workplace exposure of under

three years?

Yes.

Doctor, is there a safe level of exposure to asbestos as

far as mesothelioma is concerned?

There is no established safe level. We know meso-

thelioma occurs at relatively lower levels of asbestos

exposure.

It hasn’t been proven there is a level at which -- a

defined level of asbestos exposure which is safe

which means there is zero risk. It is thought gener-

ally there is a dose-response relationship; as the dose

increases -- the exposure increase, there is an in-

creased risk of mesothelioma, and as exposure de-

creases, there is a decreased risk but that -- if there is

any exposure, there is some level of risk.

Has there been any case studies of individuals

[232]

who developed mesothelioma from non-work-related

exposure to asbestos?

The spouse would often shake out those

m $s clothes,

thereby actually contaminating the home space with

asbestos. At Mount Sinai and elsewhere we have

been seeing some of the children of those homes and

spouses who have developed mesothelioma, again,

after the latency period, after 20 or 30 years.

We can identify that being due to asbestos

because

asbestos is the only known cause of mesothelioma. If

we see a 32-year-old with mesothelioma, we know

their exposure most likely occurred early in life.

| {233}

Some of those people we have seen are

the children

may eer Clearly that is a lower level expo-

would expect in the workplace where

asbestos is directly used.

Can asbestos cause lung cancer as well?

ee en Oe

Yes.

What type of lung cancer can it cause?

Pretty much all types of lung cancer.

Is it a type of lung cancer that is treatable at all?

Well, of the major types of lung cancer, certainly

is made to treat the cancer. There is a better

enemy | with mesothelioma but lung cancer is still

largely an uncurable disease.

One cell type in particular is somewhat -wwersied =

chemotherapy. If the cancer is early, detected

it is small, then it can be removed and the person can

lead a normal life thereafter. But, unfortunately, that

is the minority of cases.

Referring briefly to the mode! of the lung, would you

just show us where the lung cancer develops that is

Again, showing the inside of the lung here, the air

travels down through the trachea, the windpipe, and

here it breaks into smaller -- a system of tubes which

carries

[234]

the air into the lung tissue itself which is the pinker

area. It is this pinker area of the lung tissue, the

that is where the lung does its work of

The lung cancer can occur in the |

ung tissue itself,

parenchyma, or it can occur affecting the a

conducting tissues as well. That is inside the lung.

What is the prognosis for the

- lung cancer caused by

Well, most lung cancers are not ful

ly amenab]

treatment. It is the umber one cancer in the U.S.

currently. It is really the minority of lung cancers,

As far as developing | i

ung cancer is concerned

Docior, how does the risk factor of someone who has

n occupationally exposed to asbestos compare

to the risk of someone who has been occupationall

exposed to asbestos? ‘

Asbestos exposure increases the risk

of lung cancer

and it -- depending on the study, it is anywhere from

a two-fold increase to a five-fold increase or even

higher.

[235]

Does cigarette smoking also cause lung cancer?

Yes, it does.

Have there been any studies on the effect of smoking

and asbestos exposure on the development of lung

cancer?

Yes.

j increased risk from asbestos exposure as

Vet Oe ieesed dia from cigarete emeking

far as lung cancer is concerned?

Well, both agents, whether it is cigarette smoting

asbestos, independently increase

cancer.

The largest study most frequently quoted is that by

Dr. Selikoff of Mount Sinai of the insulsnss SiO

tors who didn't smoke regularly they had a five-fold

lators who didn’t

increased risk of lung cancer due to the asbesios.

That increased risk was due to asbestos and not

cigarette smoking.

not

look at a larger study of people who were

If you to asbestos but smoked heavily, they would

have a ten-fold increased risk of lung cancer.

separately, each, smoking and asbestos, have

east’ an tassnesed sidh of lung eaneet If you put

them together you get a 50-fold increase in lung

cancer. The two multiply to get a 50-fold increase in

risk.

[236]

Clearly, the two work together synergistically to

produce a very high risk of lung cancer even

each exposure by itself increases the risk of lung

cancer quite significantly.

Doctor, what is asbestosis?

Asbestosis is the scarring of the lung produced by

asbestos.

Briefly, would you describe the physical process that

results in the asbestosis, and if you need to refer to

the model, please do so?

The asbestos fibers in the breathing space, in the

work environment, once they become airborne, if a

person isn’t wear a mask, are readily inhaled to the

lung.

As I said before, some of them, particularly the

clumps or larger fibers, may get caught up in some of

the body’s defense mechanism, the hair or nose or

mucous, or there are tiny little hairs lining the wind-

pipe called cilia that try to remove foreign material

from the lung.

A lot of fibers, because they are small and because of

what I mentioned before, the aerodynamic quality of

moving sideways, are swept into the lung by breath-

ing, and reach the conducting tubes where they might

settle in the walls of the conducting tubes but also get

to the outer reaches of the lung itself, into the lung

parenchyma where the gas exchanges occur.

[237]

Many of them stay there for the rest of the person’s

life. There is no known way of getting rid of the

fibers once they are inhaled.

At some point those fibers in some individuals can

provoke scarring. This is the same kind of scarring

that you see on the skin. It is dead tissue. It is,

collagen and it collects in the lungs, more at the bases

than the upper parts of the lungs.

If there is a little bit of scarring then it won't affect

the person in terms of symptoms or their breathing

ability but if there is a fair amount of scarring then

they will get some symptoms and reduction in their

pulmonary function.

What are the symptoms of asbestosis?

Shortness of breath is the cardinal symptom. A

person finds it hard to breath and they have: to breathe

more frequently than they would given the same

tasks.

How does one go about clinically diagnosing asbesto-

sis?

We use the routine tools. The physical examination

will often show the characteristic findings when you

listen to the jungs with the stethoscope. More sen-

sitive is the routine chest x-ray. It needs to be

viewed by a person with training in occupational

diseases. Routine chest x-ray will often show the

scarring at the bases of the

[238]

lungs.

Is there any treatment for asbestosis?

No. There is no -- nothing.we can do to retard or

reverse the scarring. We advise influenza shots,

pneumonia vaccinations to try to prevent some of the

complications of asbestosis. We can give advice

about further exposure but the disease process itself,

there is nothing we can do about it.

Is that a painful disease?

Well, it -- pain is not the hallmark of asbestosis. The

suffering relates to the shortness of breath and the

inability to do normal things.

Does it have any effect on the : ’ .

see ex , patient 's weight, appe-

In advanced disease the person can have weight loss

and have the appearance of i

lung di anyone with a chronic

Is asbestosis a fatal disease?

It can be fatal but it is usuall

y not. Among the

insulators, about 10 percent developed fatal asbestosis,

very advanced scarring where they died from pneu-

monia Or some complication. Usually it doesn’t cause

death but may cause significant hardship.

What is the latency period for asbestosis?

Here, again, we are talking about the gap in time

[239]

between when the person is first exposed and when

they develop clinical symptoms, they feel short of

breath or we can pick the up on the x-ray and this

time the latency period is shorter; it is usually 15 or

20 years at a minimum. It may occur earlier but

usually not; 15, 20, 25 years is when we begin to see

it usually. The risk increases with time. As you

stretch that latency period you find increased risk of

asbestosis.

How does the amount of exposure required to induce

asbestosis compare to the amount of exposure re-

quired to produce mesothelioma?

Generally, it is considered that lower levels of expo-

sure are needed for mesothelioma than to produce

asbestosis.

Does cigarette smoking cause asbestosis?

No, it doesn’t.

Is it necessary to have asbestosis in order to develop

mesothelioma?

No, it is not. One is scarring and the other is cancer.

In fact, they are different tissues.

The asbestosis is scarring of the lung tissue. The

mesothelioma is cancer in the pleura, the covering

tissue outside the lung.

- - @:? @

They are in different locations?

That’s correct.

[240]

Is there an established threshold

' py / of exposure for

No.

Does it ever occur that

paren at + people with mesothelioma do

Yes. In fact, just to elaborate a li

ittle bit, there i

scarring of the pleura that occurs that | don’t call

asbestosis per se, I call it pleura scarring. The person

can have a mesothelioma without seeing the scarrin

of the pleura due to the asbestos. ?

Are asbestos-related diseases preventable?

Yes.

How are asbestos diseases preventable?

Reduce or eliminate exposure to asbestos.

7 ,- i ~ case, Michael Buckley, a patient

caauin one vironmental and Occupational

Yes.

Do you know when he was f

t exam th

Mount Sinai clinic? : nn CUENINS 8 the

> 2. Ft 2?

eo - @ PP 8. Ff? ¢

o> © >

In 1990.

Do you recall --

January 23, 1990.

Who examined him at that time?

Dr. Robin Herbert.

[241]

Did she write a report regarding Michael Buckley?

Yes.

Have you read that report?

Yes.

Is she a colleague of yours?

Yes.

Is that a report of the type reasonably relied on by

experts in your field?

Yes.

Have you so relied on it?

Her report?

Yes.

So? © >

I have looked at it but I got my information directly

from the patient.

When did you examine the plaintiff, Michael

Buckley, at the Mount Sinai clinic?

February 4, 1994.

At that time did you interview Mr. Buckley?

Yes, | did.

For how long a period of time did you interview Mr.

Buckley, if you can recall?

I probably, all told, probably spent an hour-and-a-half

with him.

Did you take a medical and occupational history of

Mr. Buckley at that time?

(242]

Yes, I did.

Can you tell us what medical history you obtained

from Mr. Buckley?

He had no chronic medical problems that required

ongoing medical attention. He had never been

hospitalized or had any surgery. He took no medi-

cations at the time. in fac:, he had no history of any

medical problems.

Did you take an occupational or work history from

Mr. Buckley?

Yes.

Would you tell us what occupational history you

obtained?

Sure. He graduated from high school in 1972 at age

17. For the next one to two years he had various odd

jobs but none involved any exposure to asbestos or

toxins.

Beginning at age 19 he worked for the railroad; it

wasn’t Metro-North but for the predecessors of

Metro-North.

From age 19 to the time I saw when him he was 39

he worked continuously for the railroad.

For the first two years at Metro-North’s predecessor

he worked as a carpenter assigned to a station in

Stamford, Connecticut where he was mostly replacing

or installing windows. He had done some cutting of

railroad ties as well outdoors. He recalled -- he had

no exposure to

[243]

insulation material that he recalled when he saw me.

From age 22 to 27 his job title at Metro-North was

plumber. He said most of his work involved repair of

bathrooms, installing water lines, hot water heaters

and the like, and most of this work didn’t involve any

significant exposure to any insulation material wheth-

er it contained asbestos or not.

From age 27 to age 30 he was a locomotive electri-

cian for Metro-North. This involved inspection of

locomotives and brakes. He was not directly involved

with repair of those brakes. Again, he recalls no

specific contact with asbestos during that time period

From age 30 to the time that I saw him, which was

about a year ago, he was in the job title of plumber or

— at Metro-North. This was beginning in

He was assigned to the Grand Central Terminal wher

he worked mainly around water, the steam mains,

Pipes, which ranged in sizes from half-inch pipes to

20-inch pipes that carried water and steam to heat

er — and the power in the neighboring

At that point Grand Central or Metro-North was

undergoing significant renovation, a capital program

to overhaul the pipes and the network related to steam

transport.

He was involved with replacing valves and pipes.

[244]

He would be asked to go in and actuall

; |

whole sections of the pipe in the tunnels. oo

This work involved much -- most of this pipe was

surrounded by insulation material. It is there to keep

the steam and heat in, particularly the heat in.

He had to remove the asbestos material from the

Pipes prior to either performing the repair or replacing

the pipe or valve. He told me specifically he did this

by hand. He had various tools like a hammer, ax or

wire cutters and he would rip the asbestos containing

insulation off the pipe. This produced a great deal of

dust. Some of it was in asbestos brick form but most

of it was asbestos plaster-like material adherent to the

pipes and valves. He said it produced a great deal of

dust.

He also had to clean up the debris that he created

before he would actually do the job. All of this was

in the dry asbestos state. It wasn’t wet down which

would reduce dust levels. He said that he -- excuse

me.

He said that he would be covered head to toe with a

and his co-workers apparently labeled themselves as

snowmen because this was their appearance after

doing this kind of work. He would stay in that area -

- this would take about one to two hours per day on

average, sometimes it was an hour, sometimes it was

three or four hours a day, this kind

[245]

of asbestos rip out and sweeping up the debris and

then do the other part of his job which was the repair

or replacement.

He would be working in this dirty field throughout

the day because the asbestos remained in the area

even after being swept up and removed.

He described being able to taste insulation material at

the end of the day and it would get into his nose and

ears. He wasn’t provided with a mask

, and took

precautions and wasn’t aware that this was hazardous

vork. This occurred from 1985 to early 1988 at

which point he was taken off of the asbestos removal

It was farmed out to a company which s ‘ali ‘in

fingers, the mouth and the lungs. It

was fine. - Mwes normal. He

[246]

Did you order any tests?

Yes. I ordered spi re

aisdetses. ometry which is breathing tests

Was there anythi ;

those tests? mihing unexpected about the findings of

No. The breathing was normal and the x-ray was

normal.

Were those the standard tests that are given for pa-

tients with a history of asbestos exposure?

Yes.

ais ; f

Doctor, are you familiar with the various types 0

asbestos that are in the workplace?

Yes.

What are the various types of asbestos in the

workplace?

Chrysotile is the major one that has been used in

insulation material in this country. _ Other types

Do all types of asbestos cause disease in humans?

Yes.

the

Doctor, did you review any documents concerning

presence of asbestos in Grand Central Terminal?

Yes, I did.

Would you just refer to the titles of those

[247]

documents; for example, Doctor, what has been

marked as Exhibit 2403 in this trial is the report of

the Metro-North asbestos consultant by the name of

Environmental Health Protection Consultants?

Right. I don’t have it up here.

MR. LANDMAN: Your Honor, may we approach,

please?

THE COURT: Yes.

(Continued on next page)

[248]

(In the robing room)

MR. LANDMAN: _ We have a report that was turned over

in this case with respect to what Dr.

Markowitz would testify about

Based upon that report we didn’t take

his deposition because it was basically

that plaintiff is fine and that is the end

of the story.

He did an exam and he says he has an

increased risk because of this asbestos

exposure and talks about what history

he got. There is nothing in this report

that says anything about -- that Dr.

Markowitz was going to review or had

reviewed any records from Grand

Central, that he had ever gone there or

was going to offer any opinion what-

soever about the asbestos at Grand

Central. Their next witness is going to

do that. But I think it is very unfair at

this stage to have a trial by ambush

since we were not disclosed any of this

information. We are getting into an

area that wasn’t disclosed. Here is the

report.

. . .

MR. GOETSCH: Your Honor, | was simply asking him

pesos whether he had reviewed documents.

[250]

(In open court)

THE COURT: —_—_You may proceed.

BY MR. GOETSCH:

Q. Doctor, based on Mr. Buckley’s physical examination,

his medical history and occupational history that you

took from him, do you have an opinion as to whether

he was exposed to a significant amount of asbestos

while working at Grand Central Terminal from June

THE COURT: That wasn’t suggested in the report?

MR. GOETSCH: It was not stated in his report.

of 1985 to June of 1988?

; in hi rt?

THE COURT: Was it suggested in his repo MR. LANDMAN: Objection; calls for complete specula-

MR. GOETSCH: _No, it wasn’t. om.

rn COURT: Was it ted? Would anyone THE COURT: You can cross-examine him.

[249] THE WITNESS: Yes. I believe he did have a signifi-

cant amount of exposure to asbestos on

jing that report have assumed that a daily basis for two-and-a-half years.

this question might be asked? “

Q. Do you have an opinion as to whether Mr. Buckley

inion that there has inhaled or ingested into his lungs a harmful

MR. GOETSCH: — ms - ~ostreminad amount of asbestos fibers?

THE COURT: Would you mswer_ my. een seg trates

wens roars that this question was Doctor, is it more likely than not that Mr. Buckley's

the to be asked? inhalation or ingestion of those asbestos fibers into his

going lungs has initiated any biological changes in his

MR. GOETSCH: _Not directly, your Honor. —

THE COURT:

Then it is excluded.

A. I believe that it is likely that it has -- he has had some

reaction.

[251]

THE COURT: You have -- we lawyers like to use big

words. Do you have an opinion with

a reasonable amount of medical cer-

tainty that this --

THE WITNESS: ] think it is more likely --

THE COURT: That is the not question; with a rea-

sonable amount of medical certainty

that it has happened.

THE WITNESS: I think there is a reasonable --

THE COURT: Yes or no?

THE WITNESS: Yes.

Would you explain the basis of your opinion, Doctor?

i i of asbestos fibers into the lungs -- the

pmmbeyncen es the lungs. We don’t see disease that

we can detect for usually 15 or 20 years.

Presumably there is a tissue reaction to those fibers in

de hnen cass Gey tao telated. Now, the exact

timing and nature of those findings in that window of

time is not exactly known. We don’t biopsy, take

pieces of lung, from people exposed to asbestos who

are perfectly healthy, say one or two or three years

after they were first exposed.

We do, however, have animal experiments in which

animals are either given asbestos usually through

inhalation or it is put directly into the trachea and

those animal studies do show biological changes

within a matter of days after exposure to asbestos.

[252]

What type of biological changes are shown?

Well, the defense system of the body is activated.

There are cells called macrophages which are in the

lungs normally. Those attempt to ingest and detoxify

the asbestos fibers.

It is thought that once those -- it is documented

through animal studies that once those macrophages

become activated that they give off certain enzymes

which cause other tissue reactions, that they produce

active oxygen species which cause, again, tissue

reactions or some damage locally and other kinds of

reactions locally.

The macrophage seems to be the center of the most

activity within the lung parenchyma. There are other

cells that line the alveoli that appear to become

involved. Fibroblasts are cells that create fiber or

scars.

We have fibroblasts throughout our body. They are

useful because scars are useful in terms of wound

repair. They produce the scars in the interstitial, in

the space between the sacs where air exchange occurs.

These are some of the changes that occur.

THE COURT:

Incid tally, the witness doesn’t know

our tribal customs and you shouldn’t

hold it against him. We don’t Low it

inst the witness if he doesn’t know

our tribal customs.

Q. Doctor, do you have an opinion to a reasonable

[253]

degree ical i Michael

of medical certainty as to whether

Buckley has a significant risk of developing asbestos-

related diseases as a result of his exposure as a Mictro-

North pipefitter in Grand Central Terminal from

of 1985 to June of 1988?

MR. LANDMAN: Objection. May we approach on this?

THE COURT:

MR. LANDMAN:

Yes, certainly.

(In the robing room)

The issue in this case is whether or not

it is more likely than not that the

plaintiff will suffer in the future an

asbestos-related disease.

question that has now been asked

in ahethaae en-au eune to 0 sigplliaert

risk which doesn’t answer the ques-

tion. It isn’t helpful to the jury decid-

ing this case or for the court in decid-

ing whether this should go to the jury.

‘on is withi ble

The question is within a reasona

degree of medical certainty does Mr.

THE COURT:

MR. LANDMAN:

MR. GOETSCH:

THE COURT:

MR. GOETSCH:

THE COURT:

MR. GOETSCH:

THE COURT:

Buckley have a reasonable -- is it more

likely than not that he will develop a

asbestos-related disease.

I don’t see what that has to do with

this case.

It doesn’t, but it goes to the reason-

ableness. I don’t see that any of this

has to do with

[254]

the case. They haven’t shown a severe

emotional injury. They don’t have a

psychiatrist or any evidence. That is a

Separate issue. But to ask does he

have a significant risk is not advancing

this case at all.

It is his fear of developing.

His fear but whether it is a reasonable

fear, I don’t know if that is even --

That is exactly what I am getting at.

I don’t think that is reasonable. Does

he have a fear?

Yes, but the doctor -- he has to have a

medical basis for having a fear, your

Honor.

He doesn’t have to have a medical

basis for having a fear. Why he was

MR. GOETSCH:

THE COURT:

MR. LANDMAN:

THE COURT:

MR. LANDMAN:

told all of this, | don’t know. That

gave him the fear. Why he was told

all of this except for this lawsuit, |

can’t imagine. I can’t imagine a doc-

tor scaring the hell out of a patient just

for the hell of it.

The issue that the plaintiff has to

prove is whether he has a reasonable

belief, a reasonable foundation to be-

lieve and to be --

1 don’t see why they have to prove

that. If they scared the held out of

him --

It is a two-part test. One part is

[255]

his fear. Does he have a severe emo-

tional injury; that is the first question.

The second question is even if he

does, which I don’t think there is any

evidence of, but even if he does, is it

based upon a reasonable probability

that he is going to develop this dis-

ease; otherwise, we are just in a com-

plete world of speculation.

That is true. What question --

I think the question should be, is it,

based upon a reasonable degree of

medical certainty, is it more likely

MR. GOETSCH:

THE COURT:

MR. LANDMAN:

MR. GOETSCH:

MR. LANDMAN:

MR. GOETSCH:

MR. LANDMAN:

MR. GOETSCH:

than not that Mr. Buckley will develop

an asbestos-related disease in the fu-

ture.

I think the question really is, what is

his risk of developing asbestos-related

disease in the future.

That is the question he is asking.

Then you can ask him the percentage.

But not the question that was asked

which is does he have a significant

risk because that doesn’t mean any-

thing, significant. To.some people one

percent is significant, to other people it

would have to be more than that.

I can ask him if he has a risk of devel-

oping asbestos-related disease. You

are just objecting --

[256]

To the word "significant."

Dr. Nicholson is the risk assessor and

he will quantify it.

All you are going to ask him is d

he have a risk. sty pte

I will not ask him to say 1 percent, 50

years, without him saying what the

percentage is, it doesn’t seem proba-

tive.

THE COURT:

MR. LANDMAN:

MR. GOETSCH:

THE COURT:

MR. GOETSCH:

THE COURT:

MR. GOETSCH:

THE COURT:

MR. LANDMAN:

THE COURT:

MR. LANDMAN:

We all have a risk. There is a risk of

my getting --

Every one of us.

That is why I asked, is there a signif-

What does "significant" mean? | think

he has to quantify it to make it mean

ingful. Significant may mean =

thing to you, another thing 1 me. I!

he can’t quantify it, then don't

him.

I can ask him whether he has a risk

and then --

No, you can’t.

| have to ask him if he has a risk

ra chen ask him what is the amount

of risk that he has.

All right.

Yes.

[257]

: degree

Can you say with a reasonable

of medical certainty what the amount

of the risk is.

Exactly.

(Continued on next page)

[258]

(In open court)

BY MR. GOETSCH:

Doctor, do you have an opinion to a reasonable

degree of medical certainty as to whether Michael

Buckley has a risk of developing asbestos-related

diseases as a result of his employment as a Metro-

North pipefitter at Grand Central from June of 1985

to June of 1988?

Yes, he certainly has a risk of asbestos-related diseas-

es from that exposure.

Doctor, will you quantify to us to a reasonable degree

of medical certainty the amount of that exposure that

Mr. Buckley has incurred”

The amount of the exposure?

The amount of the risk that Mr. Buckley has incurred.

I don’t engage in quantitative analyses about this. |

believe the risk is significant.

MR. LANDMAN: Objection.

THE COURT:

THE WITNESS:

Significant is a word that doesn’t mean

anything to us.

I think that, Judge, based on similar

patients | have seen or patients | have

MR. LANDMAN: Objection. 1 don’t think we are Be

MR. GOETSCH: He is answering the question. He 1s

THE COURT: See if you can quantify the amount.

THE WITNESS: No. 1 would say it is 1 or 2 or 3 per-

> © >? Oo ?

- ; he

cent risk of all of the diseases that

wouldn’t have had had he not been

to the asbestos. It is in that

range. It is not zero. It is not 10 per-

cent.

Does that amount of increased risk include mesothe-

lioma cancer?

Yes.

Does it include lung cancer?

Yes.

Does it include scarring of the lungs?

eb} gate a ‘

Actually, 1 think it is quite likely that he wi

vet some scarring of the pleura, and | wouldn’t say

that is 1 or 2 or 3 percent. I would say that is

probably, | would guess, 10 percent.

I would say under those circumstances a mini of

1 out of every 10 people would develop scarring of

the pleura; not necessarily the lungs themselves also

but of the pleura.

How does the amount of increased risk of mesothe-

lioma compare to the amount of lung cancer?

[260]

Lung cancer risk relates to, not just to the asbestos

but to the cigarette smoking, and he has a history of

cigarette smoking although he has stopped.

1 would say that his risk of mesothelioma is some-

what higher than his risk -- the excess risk of lung

cancer from asbestos. That assumes that he continues

to stop smoking cigarettes or essentially stops smok-

ing .

Is mesothelioma cancer caused by smoking cigarettes?

No, it is not. When | talked about smoking ciga-

rettes, | was talking about lung cancer, not mesothe-

Is his increased risk of mesothelioma affected by his

smoking cigarettes?

No. Mesothelioma has nothing to do with -

Cigarettes. smok

Pir —

Did he have a history of smoking cigarettes?

Yes.

What was his history?

He smoked from 17 to 37, less than a pack a day on

average.

Was he given any advice about smoking cigarettes at

the Mount Sinai clinic?

Yes.

[261]

What was he advised?

] advised him to not take up cigarette smoking again.

He had been off cigarettes for a couple of years by

the time | saw him.

Is cigarette smoking addictive, Doctor?

Yes.

What happens to the risk of developing cigarette

smoking disease when a smoker reduces his smoking

to less than one cigarette a day?

The risk of any of the cigarette smoke-related diseases

decreases with time, as soon as you stop smoking.

It takes quite a while -- it takes years before it disap-

pears or gets down to background level, but it does

Then it is based on what the history was r

. .

words, if he smoked for 20 years less than a pach

, that

a becomes determinative of his smoking risk

Once he stopped, then he doesn’t -- he gets no

Q. Doctor, from your point of view as a medical doctor,

has Mr. Buckley taken reasonable steps to reduce his

risk of developing cigarette-smoking disease?

A. Yes. He stopped smoking cigarettes two years before

I saw him.

Q. As far as smoking less than one cigarette a day on

average, is that the equivalent of stopping smoking?

A. That is what I mean. If a person smokes a cigarette

now and then, I advise him not to, but it doesn’t add

up to much risk. To go from less than a pack a day

to sneaking a cigarette now and then is a significant

change.

Q. Doctor, what effect does smoking less than one ciga-

rette a day have on Mr. Buckley’s increased risk of

developing asbestos-related lung cancer?

[263]

A. Could you repeat the question?

Q. What effect does smoking less than one cigarette a

day have on Mr. Buckley’s increased risk of devel-

oping asbestos-related lung cancer?

MR. LANDMAN: Objection, since the question leaves

out the 20 years of smoking history

that he had before that so it assumes

facts not in evidence.

MR. GOETSCH: 1 asked him about Mr. Buckley and

Mr. Buckley had a previous history of

smoking and I asked what effect hav-

ing less than one cigarette a day would

have on Mr. Buckley’s -- -

THE COURT: —_— Technically, that is improper because

there is no evidence that he is smoking

less than one a day, however, I will let

you assume he is smoking less than

sor Hates Aer bah egreddiy an

evidence he isn’t, you isre-

sehie emma you can disre

MR. GOETSCH: Thank you, your Honor.

THE WITNESS: Could you repeat the question?

(Continued on next page)

[264]

me Mr. Buckley, what effect does smoking less

one Cigarette a day have on his increased risk of

developing asbestos-related lung cancer?

One cigarette a day or less than one ci

Cigarette a da

does not meaningfully increase his risk. His pod

thee pug related risk is determined by the 20 years

| Smoked at close to a pack a day. It is not

— wie dong on. exposure of one or less

garettes . It is just not meaning

of continued exposure. eee

Doctor, what is the total cost of Mr. Buckley's

asbestos tests and examination conducted

Sinai up to the present? at Mount

MR. LANDMAN: me or hy apr — of this

THE COURT: Let me have the question read, please.

(Question read)

THE COURT: | don’t see what is wrong with that.

MR. LANDMAN: You know what, your Honor? I will

withdraw my objection. That is fine.

MR. GOETSCH: __ Thank you.

i inations,

It is, oh, $1,080. That is for two exam

1990, 1994, including chest x-ray and the breathing

tests.

: ised Mr. Buckley to

Dr. Markowitz, have you advi

undergo periodic medical surveillance in the future?

[265]

Yes.

opinion to a reasonable degree of

wed we pre as to whether he will incur any

future medical expenses as a result of undergoing

such periodic medical surveillance in the future?

Yes. Assuming that he undergoes a periodic checkup

for asbestos-related disease, he will incur some

expense.

What is the medical test and examination that you

recommend Mr. Buckley should undergo in the future

for his medical monitoring?

Annually, he should have a medical exam, and

physician counseling, basically, pulmonary pump

testing, chest x-ray. At some point the chest x-ray

could go every other year instead of every year but

for the time being it should be a year. Than he

should have signoidoscopy, which looks at the large

intestine in the colon to test for colon cancer. That

need be on a two-year basis at beginning age 45. He

also needs a test of stool for blood, which is a minor

test.

Doctor, what is the reasonable annualized cost in

today’s dollars for such periodic examination and

tests?

THE COURT: What is the basis of his expertise as to

what other doctors charge?

[266]

MR. GOETSCH: We are talking about the charges at the

Mount Sinai Clinic, your Honor.

Taking the sigmoidoscopy, which is expensive, about

$600, and dividing it in 2, because it is only once

every other year and not every year, the annual

charge would be about $950, somewhere in that

range, $900, $950.

And that is taking all the tests over a two year petiod

and averaging the cost over each two-year period

Per year, right.

= j ]

Do you have an opinion as to whether Michae

Buckley should continue to undergo such

itoring for the remainder of his life?

Yes. He began exposure at age 30, and his period of

risk will peak for the cancers at age 90, 00, 0. ,

certainly he needs to continue testing for the foresee

able future.

Doctor, does Michael Buckley have, in your opinion

na medical doctor, a reasonable medical basso fa

that he will develop asbestos-related disease in

future?

MR. LANDMAN: Objection. He has already testified

about what the increased risk is.

THE COURT: Objection sustained.

Doctor, assuming that Mr. Buckley had the statistical

future life expectancy of 36.5 years, is it your

[267]

: undergo this medical

. ion that he will have to . ; Oo .

monitoring for the rest of his statistical life?

Yes. In particular, we ext . Gee

medical monitoring in the coming years, not to

mention decades, so that it will be even more use

in the future.

MR. GOETSCH: Thank you. No more questions at this

time.

THE COURT: Are you ready to start?

MR. LANDMAN: _I can. I don’t know if the jury needs

a break, five minutes or whatever. It

is up to your Honor. I can start now.

THE COURT: You can?

MR. LANDMAN: "Yes.

THE COURT: Do you need a break? OK, start.

CROSS-EXAMINATION

BY MR. LANDMAN:

Q. Doctor, this isn’t your first asbestos case you have

testified in, is it?

A. No, it is not.

Q. How many cases have you reviewed that were sent to

you by lawyers?

A. Individuals, over a hundred, but I don’t know beyond

that.

Q. And 25 percent of your income, doesn’t it, Doctor,

comes from asbestos litigation?

[268]

, 94, It

That was true of °93. 1 don’t know about hink j

wouldn’t be any more than that in ms :

might be less.

How many times did you testify in 1994"

| believe it was three times.

Yes.

What did you charge for all of that?

I believe it was $175.

That was for examining him?

And the report.

So that wasn’t $300 an hour?

That’s correct.

Do you charge $300 an hour when you are testifying?

SS eo ee eS

Actually, usually, when I examine the patient, but |

notice in going over the bills he was billed at $175

for a new visit. The report wasn’t --

That was a mistake?

It was whatever it was. I don’t know what it was.

[269]

Usually you charge more than that, is that right?

$300 an hour.

What is the last time you testified in an asbestos case?

I believe it was June of °94. It was sometime in ’94.

And when is the next time you are going to?

I have no idea. There is nothing on the calendar.

You end up testifying in about half the cases you

review, isn’t that right?

That sounds about right.

Have you ever testified, Dr. Markowitz, in a case

before this one where the person had absolutely no

asbestos-related disease, in an asbestos case?

No clinically recognizable disease? No.

So this is unique for you?

That’s correct.

np > Pe

si and

reviewed, as of 1993, which is @ year

ani enths ago, over a hundred cases, isn't that right

that were sent to you by lawyers?

Yes. It sounds right.

How many were sent to you in 19947

Ten, | would guess. | don’t keep the numbers.

, 0]

How many have been sent to you so far this year’

{270}

None.

i that were sent

have never actually reviewed cases

pen by defendant in a lawsuit because no defendant

ever sent you a case, isn’t that right?

What kind of injury is alleged in that case, the

hazardous waste case?

Some neurologic syndrome.

Neurologic?

2 > © >

I wouldn’t use the word "solicited."

What word would you use?

I wrote a letter in 1988, when I began to do this,

saying that | was aware of the need and that I was

available to review cases, examine people, and write

reports, and testify.

That there was a need for what?

There that there was a need for an expert wi

expert judgment about whether oe nth ar -.

asbestos-related disease and a willingness to appear in

court.

[271]

The law firms that you wrote were three of the firms

in the United States that represent emplc ope

ing about asbestos injuries, isn’t that right?

That's correct.

And one was in South Carolina?

Correct.

One was in Washington, D.C. and one was here in

New York City, isn’t that right?

Correct.

In fact, the one you wrote in New York City sent you

about half the work you get, isn’t that right?

100

In the ensuing years, that’s true.

Who is Dr. Stephen Levin?

He is a colleague at Mount Sinai.

What does he do?

He is director of our occupational health clinical

center.

Do you work for him?

He is the director of the clinic, not of the division.

(272)

And he is the one who told you, "Dr. Markowitz,

why don’t you get in on this, why don't you write

some letters to these lawyers and they will use you to

testify”?

Well, it didn’t exactly go like that.

How did it go”

He and others had made me aware for a number of

months before this that there was a need for people

who would review cases, examine people and appear

in court. I wasn’t interested for a while. Then after

a period of time I decided I had the relevant exper-

tise, and | think I asked him how to get involved, and

he may have said -- | think he probably said, "Why

don’t you just write a letter to certain law firms.”

And from that you have now made 25 percent of your

income?

Well, that was true in 1993. That wasn’t necessarily

true before that or since that time.

I would like to show you what has been marked as

Defendant's Exhibit A. If you could, Dr. Markowitz,

could you just tell me, are those three letters dated

February 17, 1988, the letters you wrote with

to this? _—

Yes. The same letter.

They were written on Mount Sinai stationery, isn’t

that correct?

That's correct.

[273]

MR. LANDMAN: _ | would offer these in evidence, your

Honor.

THE COURT: _—Any objection?

MR. GOETSCH: _No objection.

THE COURT: Received.

PC. ? 0: ?

(Defendant’s Exhibit A was received in evidence.)

Dr. Selikoff, whom you talked about a little bit this

morning, never testified in an asbestos case, did he?

Not that I know of.

Do you know Dr. Nicholson?

Yes.

Who is he?

He is also a colleague at Mount Sinai, in the Division

of Environmental and Occupational Medicine.

Who got you in on this case? Did he get you in or

did you get him in?

] think it was neither.

Did you at some point in time learn that Dr.

Nicholson was also going to be an expert in this case?

That’s true.

When did you learn that?

I don’t recall. It was sometime after | was asked

whether 1 wanted to see one or more patients from

this group. But it was sometime after that, 1 don’t

recall when.

103

[274]

And Dr. Nicholson came .

idintdinteee,

That’s correct.

We work together on -- he helped :

me with the stud

of bladder cancer in northern New York, but specif

ly, beyond that, I don’t think we have worked

together in terms of research.

In the bladder cancer, that was also in connection

with litigation wi |

righ? with respect to a chemical plant, is that

Who paid you for that?

I wasn’t paid for that.

You weren't paid for that work?

op @ PP OP O.F

- 105

No. Q. And pesticides?

Who paid Mount Sinai? A. That’s

This was ’89? | was mostly covered under Q. And carbon dioxide solvents?

You only see patients about 10 percent of your A. That's right.

professional time, is that right?

Q. Mercury?

That's right. _

A. Correct.

About half a day a week?

Correct. [276]

* MEAS Q. Arsenic?

And you see patients with repetitive motion injuries?

A. Occasionally.

That’s correct.

a Q. Cadmium?

Such as keyboard operators and things like that?

That’s correct. —— Arsenic? What about old lace?

ge Q. Old lace?

Have you been asked to testify in some of those

cases? A. No. No such luck.

| was deposed in one case. Q. Cadmium?

You also see people who claim exposure, you said, to A. '

chemicals, is that correct? Rarely, but. | think I have seen it.

Q. And also people claim about asthma?

That’s correct.

lb >nm > O > OO ?P

107

Q. You are not a lung doctor, are you?

Correct.

A. Excuse me?

Correct.

You are not a lung doctor, you are not a

pulmonologist?

And also occupational dermatitis? A. ___ That’s correct.

Occasionally. Q. What is a pulmonologist? Why don’t you tell the

That is skin rashes and things, isn’t that right? aay

That's right.

A physician trains for three years of internal medicine

and then an additional two years in pulmonary

And obviously these exposure don’t always affect the medicine, and then they take the

board examination in

pulmonary medicine and become a board-certified

jungs, isn’t that right? pulmonary specialist.

That's correct. THE COURT: Pulmonary meaning lung?

neurological

A number of them affect the brain or the "~ THE WITNESS: _Lung, that’s correct.

system?

Q. You don’t treat people for lung cancer, right?

That’s correct.

2 said. the skin and some A. That's correct.

And some, you the bones, isn’t that right?

affect the musculoskeleton, Q. If people have lung cancer, you would send them to

ae a pulmonologist?

[277] A.

No, I would send them -- well, it depends. Either a

affects,

for solvents, for example, the exposure

pon the neurological system, the nerves?

It can.

lung doctor or a cancer doctor, an oncologist.

Doctor, you referred, I believe, to some animal

studies that you participated in that, you say, show

some

e-?: 2 Ff

108

[278]

Is that right?

I have not participated in those, but I read about

them.

Can you give me the names of those studies and

where they are published?

Not specifically here, but I can provide them ifter-

wards if you like.

Why don’t you bring those in tomorrow when you

come in, the ones that support your position that if

you give animals asbestos, they develop changes right

away.

Sure, if you want.

How much asbestos was given to those animals?

I don’t recall. It was high doses, but I don’t recall.

OK. We can deal with that tomorrow.

Everyone in any urban environment has some as-

bestos exposure, isn’t that right?

That’s right.

Most of those people don’t get asbestos disease, do

they?

That’s correct.

ro)

We have defense mect .

don’t we? to protect the lung,

That’s correct.

[279]

And you talked a little bit

about the AF

escalators, that i mucociliary

ye : is one of the defense mechanisms. Is

That’s correct.

And the macrophages —

that you mentioned? or defense mechanism

That’s correct.

So actual

aioe ly help, if you breathe in a

ry to asbestos, help to take care of that in

isn't that right, by putting enzymes on it?

That’s the attempt.

N ; ee

ow, the smoking actually inhibits the mucociliary

110

In general, the risk of lung cancer from asbestos 15 2

dose response, isn’t that right?

That’s correct.

In other words, the more you get, the worse the

problem?

The higher the level of exposure, the greater

[280]

No, I don’t think there has been enough proof of that.

But a number of people do hold that, including such

people as Andrew Churg, is that correct:

~Yat’s correct.

Who is Andrew Churg?

ea seh Co-

is a pathologist at the University of British

sai ce tan One ae of work with cancer-

related pathology.

He has written a textbook on this?

That’s correct.

You haven’t written any textbooks on this?

That is also correct.

You haven’t written any chapters on asbestos, have

you?

No, I haven’t.

Do you know Dr. Casey Morgan?

1 know that he is a coauthor of an occupational lung

disease test.

[281]

textbooks he has written on occupational lung dis-

ease?

No.

Do you know how many articles and books he has

written on asbestos?

No.

Would you agree that he is one of the world’s leading

experts on this subject?

I thought his strong point really was coal workers

pneumoconiosis and silica rather than asbestosis.

Why don’t you tell the jury what pneumoconiosis is?

> Oo > O

ot been involved in the study of that for many years,

a nce a scarring of the lung caused by silica

Yes.

How many of his books do you have?

I have one book by him.

[282]

Is it something you refer to periodically’

Not the asbestos chapter but for other things | have

For coal 1 have, and for silica.

It is true, isn’t

with you and states that asbestosis is necessary

you can draw a

that true?

That opinion has been stated in the literature

, substantial body of

it, Doctor, that a sv '

in the published medical literature disagrees

jung cancer and a preceding asbestos exposure, 1st '

oe: ?: & Ff

113

A substantial body of that opinion?

A fair number of people, yes.

Dr. Jurg’s book, "Modern Pathology,” you actually

have that book in your library also, don’t you?

That's correct.

And you refer to that on occasion?

I have.

ing risk. Let’s go back to your report which you

have in front of you. What | want to know is pre-

cisely what it is Mr. Buckley told you about his

smoking history when he came to see you, and give

us the date again, if you would.

February 4, 1994.

OK.

(283)

He quit cigarettes two and a half years ago. He said

he smoked less than one pack per day starting age 17.

He told you less than one pack a day?

That's correct.

o. & 7 -

- e 2..e +2

114

Would your opinion change at all in this case if you

knew he actually smoked at least one pack a day for

that twenty-year period?

No.

Did he tell you when he saw you that he was actually

smoking one cigarette a day?

I don’t recall.

Well, you didn’t write that down?

That’s correct.

Doctor, do you know many people, based upon your

seeing what you say are patients or clients or whatev-

er --

Patients.

Patients. Well, this particular patient was sent by a

lawyer, isn’t that right?

He is still my patient.

Was he sent by a lawyer?

Yes.

Mr. Goetsch.

Correct.

When he was sent there in 1990 to your colleague, he

was also sent there by Mr. Goetsch, isn’t that right?

PF 2 >

115

I believe so.

[284]

And both exams were ;

right? completely normal, is that

That's correct.

You did pulmonary function

Yes.

And you did x-rays and they were normal?

Correct.

Doctor, usually when you testi in these

Ne hieaee” cases you

No, it depends on the disease.

Well, if it is a lung cancer case.

actually treat the patient or see the patient? .

That's correct.

> 2 >

Bus, for cmngin, lsh ete ee ae ee eee

case across the street you brought in x didn’t

the jury where the asbestos-related disease was,

(285]

Does the Princiotta case mean anything to you?

Yes.

Do you remember bringing in the x-rays?

1 still don’t recall. It was quite likely because I do

sometimes.

Doctor, there are what is called ILO standards, isn’t

that right?

That's correct.

do is, they mark, with respect to x-

rays, what is shown on ther in rms of the extent o

the seriousness of the searring, isn't that right?

It’s the system we use to quantify the amount of scar-

ring that we see on the x-ray.

And they go from zero zero to three three?

Correct.

And three three is the most serious, isn’t that right?

Pr BP 8 >

117

Most advanced.

The most scarring?

That’s correct.

It basically looks like bubble gum across the lungs?

Well, that’s never occurred to me before: No, |

a Say it looks like bubble gum across the

How would you describe it?

And the lowest is zero zero, isn’t that right?

That’s correct.

And even though it is zero to three, there are actually

one, one one, two one, all the way up to three three?

That’s correct.

And Mr. Buckley’s x-rays both in 1990 and 1994

were Zero Zero; is that right?

That’s right.

118

That means he has absolutely no asbestos-related

disease?

That’s right.

And he has absolutely no pleural thickening, isn’t that

right?

That’s right.

i that pleural

Doctor, haven't you testified in the past

thickening usually develops within ten years?

No. Usually?

ition that latency can be as

Haven't you taken the position |

short as five to ten years for lung cancer, Doctor?

It can be. It usually is not. Usually we don’t see it

for ten years.

Doctor, have you testified in cases where you

’ ail >

It came up last year in the Princiotta case”

It may have, but again it doesn’t come up frequently.

THE COURT:

MR. LANDMAN:

THE COURT:

MR. LANDMAN:

THE COURT:

MR. LANDMAN:

THE COURT:

MR. LANDMAN:

THE WITNESS:

THE COURT:

THE WITNESS:

Would this be a good time to break?

Your Honor, I was wondering, though,

the letters, could I just published them

to the jury? I can read them quickly

before the jury goes. Would that be

all right, the letter that he we intro-

duced?

Yes.

It is two paragraphs.

All right.

Thank you. The letters are dated Feb-

ruary 17, 1988, and they are written --

I understand the witness has an ap-

pointment and he doesn’t have to lis-

ten to these letters.

morrow afternoon I guess you are

coming?

Right.

OK. You don’t have to listen to

(288)

these letters if you don't want to.

It doesn’t matter to me.

THE COURT:

MR. GOETSCH:

THE WITNESS:

MR. GOETSCH:

120

| understand you have an appointment.

What time will the witness be avail-

able tomorrow?

12:30.

All right.

(Witness excused)

121

[473]

DR. STEVEN MARKOWITZ, resumed.

CROSS-EXAMINATION (Continued)

BY MR. LANDMAN:

Q. Good afternoon, Dr. Markowitz.

[474]

Just so we get everything in context, you basically

started working at Mount Sinai and finished your

residency in 1986, is that right?

A. I finished my residency in ’86, that is correct.

Q. When did you start at Mount Sinai?

A. 1984.

Q. You finished your residency, completed your medical

training in 1986?

A. Correct.

Q. By 1988 you were out requesting asbestos work: is

that right?

A. I was open to the possibility of testimony.

Q. Doctor, did you bring those animal studies with you

today?

A. Yes.

122

Can I have those, please?

Sure. They are in my briefcase.

Okay. Why don’t you stay there. We will take a

mid afternoon break, with the court’s permission and

we can get them then.

I can get them now. It is easy enough.

Okay. Thank you.

Doctor, you agree that the smoking risk continues for

at least 20 years after someone quits; isn’t that right?

So far it has been studied to about 20 or 25

[475]

years and it continues at least 20 years.

So, in other words, in fact, you agree that the risk of

developing lung cancer in an ex-smoker is still greater

over the course of a lifetime than a non-smoker even

20 years or more after someone quits?

That is correct. It decreases at the time when the

person stops, decreases compared to what it would be,

but the risk is still elevated and decreases over time

and appears to approach the same as background risk,

the smoker risk, by about 20 percent.

10 percent of all cigarette smokers get lung cancer; is

that correct?

That is correct.

123

How many People get | i os

from any cause? on mms cancer in this country

Half a million.

Vou agree that a chest x-ray is the best method of

determining or not someone has asbestosis?

It is the simplest ethod

tests it is ~ " certainly among routine

chest x-rays for dust diseases of the lung.

7 formulating your opinion in this Case, did you see

— from Dr. Frank Pernell who did a B readin

of Mr. Buckley's X-rays? ;

No.

But you wouldn’

oop y ouldn’t be surprised to know that that is an

That was my reading as well

124

THE COURT: You can read it even though you are

not certified?

THE WITNESS: That is correct. I am not certified but

it is part of my specialty.

Q. You just never took the test?

A. That is correct.

Q. Why don’t you explain to the jury what this test

consists of?

A. 1 don’t know that much about it. It is in

Morgantown, West Virginia. | think it is about four

or five or six hours. It is reading x-rays and deter-

mining them according to this scale. Then there is --

they grade a certain percentage right.

Q. Doctor, you agree that lung cancer is the leading

cause of cancer death in the United States in men?

A. Correct.

Q. 100,000 men die of lung cancer each year?

[477]

A. 100 what?

Q. 100,000.

A. I think more than that, actually.

Q. 350,000 people die each year due to smoking in this

country?

125

Roughly.

85 to

matted ns comme crams we deo te

In that range.

How many men do die each year of lung cancer?

I thought it was 110, 120,000; in the sare range.

More people die in this coun i

| i try from smoking than

die from automobile accidents, homicides, AIDS, put

together; isn’t that right? )

Correct.

Smoke induced diseases are the

( most ventabl

diseases in this country, isn’t that right? * :

It is the most preventable common disease. There are

a host of diseases that are

wen a —— Smoking-

Your lung cancer risk is hi

bytes a gher if you start smoking

That’s true.

As early as 1979 the Surgeon General said that

on” a one-pack-a-day smoker takes in between

[478]

and 70,000 puffs; isn’t that right?

> O@ FF °e.Fr

126

1 wouldn’t know that number.

How many puffs do you think a smoker takes, in if

you know?

I] don’t know.

i i hemi-

tor, tobacco smoke, you agree, is a unique chem

aan over 1500 known chemical compounds in it?

It is not a chemical.

It has 1500 chemical compounds in it?

That is correct.

Just tell us what chemical compounds are.

These unique chemical substances. They have

their shawn acened formula and presumably their own

behavior.

By 1989, at least, 43 of those were found to have

been carcinogenic?

I don’t know the exact number. Numerous have been

found to be carcinogenic.

That means they cause cancer?

That is correct.

The duration of smoking, how long you were a

smoker, is more important than how intense a smoker

you are, isn’t that correct?

127

I know duration is important but I don’t know relative

to intensity at any given duration. | don’t know

[479]

how they compare.

We usually look at smoking history in pack years

which is the duration and intensity combined. One

pack per day for 40 years is 40 pack years, 2 packs

per day for 40 years is 80 pack years. That is the

usual measurement we use for smoking.

In other words, smoking over a longer period of time

is more important than how much you are smoking at

a given time but they are both important, would you

agree with that?

No. I agree that both are important. | don’t know. as

| said before, the relative importance of it.

octor, you remember giving testimony in the

Princiotta case last year?

Yes.

At page 185 you were asked this question, and this

testimony was given before Justice Helen Friedman

on April 5, 1994, page 185:

"Q Doctor, in addition, the risk from smoking

related to intensity of exposure which means

the number of cigarettes smoked per day, how

long you smoked but duration, has a more

powerful effect, isn’t that correct?

128

“a. More powerful than the intensity’

“Q. Than the intensity. In other words, meaning

over a longer period of time is more

but

(480)

both are important. That is more important?

“A. | believe that is true.”

That is basically your testimony?

That is the same as my testimony today,

Okay. Obviously, Mr. Buckley's smoking history 's

important to you?

Yes.

Your ing is that he was basically @ one

pack a day smoker for 20 years?

Less than one pack per day for 20 years.

Then your understanding is that he quit when’

Two-and-a-half years before | saw him. pea!

ago so it would have been 1992 or late 1991.

So PF? ?

129

Is that based upon what Mr. Goetsch told you?

That is what Mr. Goetsch told me. That is what Mr.

Buckley told me. For that matter, he may have told

that to me at the time I saw him a year ago but it is

not the kind of smoking I would think is important

and wouldn't have written it down.

When did you learn about this one cigarette a day

from Mr. Goetsch?

[481]

Again, I may have been told a year ago when | saw

him. I don’t recall then. This week | was told that

he smokes a cigarette or less per day by Mr. Goetsch

and Mr. Buckley.

Did Mr. Goetsch come see you last week in your

office?

No.

Did he call you on the phone?

No. We spoke on the phone.

Did he tell you over the telephone that Mr. Buckley

was smoking one cigarette a day?

He may have. | don’t. recall. He told me but |

don’t recall whether it was in person or on the phone.

Doctor, you see a lot of people who are complaining

about occupational illness, right?

130

13]

aah Q. You are aware of the time fact that they have pro-

You take a lot of smoking histories from people, isn’t United States? Pe Canned in all workplaces in the

that right?

A. — Something -- either a full

*s correct. eo ban or

That’s something like that. Certainly, a big change.

Do you see many people who smoke cigarettes at a Q. Ase : gat

rate of one per day? are in favor of that es YOu are not sure if you

Occasionally. Most people either smoke more or they A. Well. in neinc: ;

have given up entirely, but many people, | can't give in the Seaahitiny of gaan eee The question

you percentages, on their way to quitting entirely take ot ben or getting Whether there is a

an occasional smoke. through, mostly a ban, I haven’t really thought

[482] Q. Passive smoking increase:

: ~ other disorders? the risk of lung cancer and

Doctor, you know that sometimes people don’t give

honest histories; not because they are being dishonest A. That’s correct

but they sometimes understate their smoking; isn’t ,

that right” Q. Passive smoke is what?

I have no recourse to that information usually except

for what the patient tells me so | wouldn't know. [483]

You know what OSHA is; isn’t that right? neg ee from -- excuse me, inhal-

That's correct. active smoker, so it is bei oe tees on

the nit Someone who does smoke and breathing in

They regulate the safety and health of workers in the dun Genet ne ta that route rather

United States? taking cigarettes yourself.

That's correct. , — = have shown that, in fact, Passive smoking

— at an early age is particularly harmful

a - @-?

132

That’s correct.

Did you take a history from Mr. Buckley to find out

whether or not his father ever smoked?

No. I didn’t consider it relevant.

Did you take a history as to whether or not his

mother smoked?

No.

Did you take a history as to whether or not his wife

smokes?

Yes.

Does she?

No.

Why didn’t you think it was relevant?

Because | am looking at what his current future risk

is of lung cancer and asbestos-related disease, and, to

[484]

my knowledge, passive smoking by children affects

their frequency of respiratory infections, the intensity

or severity of their asthma, but | am not-aware of any

studies that show the exposure to passive smoke as

children affects their lifetime risk of cancer, their

cancer risk as an adult, which is what | was con-

cerned about in this case.

dtd ken ee ed

133

Hasn’t oe Sengnen Grnsnel cunatated that, in seme

souhieen passive smoke is the same as if you are

I don’t know’ that particular language. Certainly

there are constituents of passive smok

arom ese er e that are the

They both have the chemicals in it?

Some chemicals.

They both have carcinogens”

Yes.

Since you have already testified that

_alre you general!

agree that duration is more important than eed

wouldn t passive smoke exposure as a child add on to

someone's duration of how long they have been

smoking?

In theory, yes. My point is that the studies haven’t

been to show, to document that lung cancer risk

extends into -- well, is ex i

_ a . pressed in adulthood from

Do you know whether or not Mr. Buckley's

[485]

co-workers ever smoked at work?

No.

You didn’t ask about that?

nD F&F DBD

134

No.

You, yourself, don’t consider passive smoking in the

workplace as an occupational disease?

Passive smoking as an occupational disease?

Yes; in the workplace?

Smoking is a habit, it is not a disease. | am not sure

what you mean.

Do you consider that passive smoke in the workplace

can lead to occupational disease? In other words, if

you are exposed to people smoking in your work

environment, would you consider that to be something

that could cause occupational disease?

I haven’t really thought that through.

You know that in 1986 the Surgeon General devoted

the entire issue of the report on smoking to passive

smoke; isn’t that right?

That’s correct. Some year; I don’t know which year.

You actually read part of that report?

That’s correct.

Doctor, isn’t it true that you have said in the past that

you wouldn’t be surprised if some patients

135

That would not surprise

Li ’ me. I don’t know if | sai

in the past,” but it wouldn’t surprise me. or

a the Surgeon General of the United States is --

yee name of the person -- but what generally is

Ir responsibility as far as you understand it?

They are reall premi

country. eae ere health educator in the

Doctor, you trained in Psychology; is that right?

As an undergraduate.

Doctor, did you give hi

, give him any type of quantificat;

as quantificat

to what that increased risk was at that time? a

No. I didn’t spell out that much.

Why didn’t you?

136

[487]

A. Because, again, with patients and even yesterday here,

I don’t focus in on the quantitative approach. I more

talk about sort of trying to find meaningful terms in

terms of what kind of risk there is.

Q. You told him to make sure he doesn’t smoke?

I told him not to resume cigarette smoking.

Doctor, when you say he had significant exposure to

r snuense-enth. Gus ean tambon eine une yout

A. That is correct.

Q. Yesterday when you testified you said that he had one

to two hours of exposure everyday on the average:

A. That’s correct.

THE COURT: Let me interrupt. You used the word

“patient.” He didn’t come to you for

health advice as to what he should do?

How is he your patient? Isn’t a patient

someone who comes to you for treat-

ment?

THE WITNESS: He was my patient. He came to me

for health advice.

THE COURT: He didn’t come to you for the purpose

of finding out how he should conduct

himself; that wasn’t your purpose?

137

THE WITNESS: My purpose was, in my view, was to

determine whether he had any asbes-

tos-related disease.

THE COURT: For what purpose? Not for helping

him, for a lawsuit?

[488]

THE WITNESS: No. I knew I was going to testify in a

lawsuit if it ever came to that but

when I saw him I saw him as my

patient as a consultant and | gave him

advice as to his health and how he

should conduct himself in the future.

I couldn’t do otherwise as a physician.

Let me make sure I understand. Whenever a lawyer

sends someone to you, you count that person as a

patient?

That’s correct. I am not his primary care physician,

I am not the person who provides ongoing care, but

it is a clinical consultation and | give him expert

advice about what he has and what he should do.

With respect to his occupational exposure, you didn’t

factor in at all the fact that he was sent by a lawyer

and he already had a lawsuit pending and obviously

he wanted to -- it would be in his interest to maxi-

mize his exposure; you didn’t consider that at all. did

you?

Again, my information about how much -- his work

habits were coming from him. | have no independent

138

confirmation of that. That is always the way it is

with patients.

In this case I got some other information about there

being 10 percent or 15 percent or 20 percent of some

bulk samples taken from the tunnel.

I am focusing on his work, his job.

| am answering the question. There was a certain

[489]

percentage of asbestos in the products he worked

with. The information I get is from him. That is true

of any patient.

Right, but have you ever had a situation where

someone who was a plaintiff in a lawsuit came and

talked to you not as strictly for clinical treatment or

anything but as a plaintiff where they misled you at

all?

There was one patient, I don’t know if he misled me,

but there was one patient who came to me, who was

sent by a lawyer, this was several years ago, who told

me one thing and called me up a day or two later and

changed that particular number or line. I don’t recall

the details. That is the only time it ever happened to

me.

Do you know if one of Mr. Buckley's jobs was to do

any type of inspections at Grand Central Terminal?

Before 1985 his job did involve inspection.

2 > © >

139

From 1985 to 1988?

From ’85 through ’88 I was told that it was mostly or

full

y <7 work or replacement of pipes and related

You to Are ar it was mostly ripping out pipe

rare Pipes or installing new pipes; is that

Pipes, flanges, valves and asso i

ipes, fl aly rted material. That

his dominant activity for at least two-and-a-half shag

[490]

You have psychiatrists and '

psychologists and soci

workers at Mount Sinai; isn’t that right? net

That’s correct.

Are there any in the occupational medicine group?

There is a social worker.

When you saw Mr. B URE

Nicholson was there a and met with him, Dr.

That’s correct.

You didn’t

you? refer Mr. Buckley to a psychiatrist, did

No.

Did you refer him to a psychologist?

eo P €

140

No.

Did you refer him to a social worker?

I don’t believe so.

tients,

, in the past, when you have seen pa

be ape referrals to those types of people,

haven’t you?

Occas i ly to a

ionally to social workers, never formal

i fl I don’t believe to a psychologist

either.

You know that your colleagues that are — sick

people, for example, colleagues that may —

someone for lung cancer or some other fatal sease

periodically will send someone to a pore :

psychiatrist to talk to them about all of that,

you?

[491]

] imagine that is true.

When you interviewed Mr. Buckley did he tell you

he had had any type of psychiatric or psychological

counseling?

Not that I recall. I didn’t specifically ask, either.

Doctor, in drawing your opinion in this case you were

relying on Dr. Selikoff's study Gm compares smok-

ers and non-regular smokers, weren't you:

That’s correct.

? ? @ ? @

14]

Those were insulation workers?

That’s correct. In part. That is not the only ones. In

part, yes.

That is the leading study that we have heard a lot of

talk about cohorts and all of this, this long longi-

tudinal study; isn’t that right?

I mentioned it once, yes. Beyond that, | wouldn't

know.

Before we get to this, what is your connection with

Dr. Nicholson?

He is a colleague at Mount Sinai.

Who brought Dr. Nicholson into this case; did you or

did he bring you into this case?

You asked me that yesterday. | have no idea. He did

not contact me about this case nor did I contact him.

[492]

You two interviewed Mr. Buckley together?

That is correct.

It just sort of happened, as far as you know?

No. I think actually Mr. Goetsch arranged that.

That is what | was trying to get at. Tell me how that

all came about.

Correct, or Mr. Buckley calls our clinic and they set

up the appointment.

Then Mr. Buckley shows up and, lo and behold, Dr.

Nicholson is there?

week

| knew several days before, I think a

ot Nicholson told me he was going to be

present.

He told that you Mr. Goetsch had contacted him as

well?

i -- | didn’t tell Dr.

He didn’t tell me that but

Nicholson that and I didn’t know exactly when Mr-

When you examine patients as opposed to people who

sre sext by lawyers does DY. Nicholson usually sit in

[493]

with you?

people referred by

| the l see, whether they are 7

eevtors, lawyers or whomever, are considered patients

—

143

for the purpose of consultation and, no, Dr.

Nicholson doesn’t usually sit in with me.

What Dr. Selikoff was studying was the relationship

between asbestos and smoking; isn’t that right, in

part? night,

In part, yes.

pero this jury that there is a synergistic effect be-

asbestos and smoking; is that right?

That's correct.

There are other studies but that is the largest study

that | am aware of.

From that you then said that Mr. Buckley’s risk has

increased how many fold?

| don’t think I said that at all actually.

I think that what your testimony was that his risk has

increased by a certain percent; is that right?

I don’t recall exactly. | am not sure exactly what you

are driving at.

I am just trying to get you to answer.

If you make the question clearer, | will be glad to

answer it.

144

[494]

a a Selikoff really

Doctor, isn’t it true that what Dr.

compared were smokers and non-regular smokers, not

non-smokers?

He defined nonsmokers as those who would smoke

less than six months.

They are specifically said to be non-regular smokers,

isn’t that right?

Could be. He could have referred to them as non-

smokers but the definition was less than six months.

Not smoking regularly doesn’t mean that you never

smoked at all?

Not necessarily.

Doctor, the way Dr. Selikoff did this, he asked

the questions about their smoking history in 1966 but

he wrote the papers in 1976; isn’t that right, or based

upon questions in 1976?

‘oned them in the late "60s and then looked

setedantndhateaameaiaaite 1966 and 1976.

that were

He never went back to see the people

having the mortality, whether they had started to

145

After the time when he interviewed them.

After the first interview in 1966?

After the only interview in 1966. 1 don’t

[495]

believe it was 1966. I think it was 1969.

These “non-regular smokers" could have started

smoking during that ten-year period, couldn’t they

have?

Yes.

questionnaires saying that they are actually non-

I have never seen a study about that.

You didn’t? Didn’t you see it in the Princiotta case?

I don’t recall. If you are referring to a specific study

I will be glad to take a look at it.

Okay.

Doctor, you are familiar with a publication called

Chest; aren’t you?

Yes.

It is a magazine that you actually get at Mount Sinai?

Se Fe ed

146

Correct. I personally don’t get it but Mount Sinai

gets it.

Chest, by its name, is about the lungs and things such

as that?

That’s correct.

i in January 1992 is

There was an article that came out in

by Dr. Kasi S. Stridhar and William Raub where

they,

[496]

at page 23, concluded that former smokers often fill

out the patient questionnaires as a non-smoker.

Actually you were asked about this at the Princiotta

case so you saw it there. Maybe you forgot. That is

understandable.

| hadn’t seen that article before.

You saw it there a year ago?

I don’t recall, to tell you the truth. It may have been

waved at me.

In any case, you don’t disagree with their findir.g<?

I haven’t viewed the study so | can’t say that.

Do you want to take a look at it now?

Sure. If you want to ask me specific questions, sure.

147

Just take a look right there. Actually, to save time,

the only question | want to ask you is did I accurately

read what they concluded?

Yes, that is what it says here.

Doctor, now, Dr. Selikoff’s study was of 17,800

insulators; isn’t that right?

That’s correct.

What he was trying to determine is how many in-

creased cases of cancer occurred because of exposure

to asbestos or smoking above what you would nor-

mally expect in

[497]

the population; isn’t that right?

That’s correct.

Out of that group of 17,800 insulators, when they

went back and looked at them as you say ten or more

years after that they found a total of four non-regular

smokers who got lung cancer; isn’t that right?

That’s correct, although you have to look at how

many deaths total there were, not total number of

people in the study since most of them had not died.

How many smokers who got lung cancer increased

over that period of time?

I don’t recall.

S- Rae PP

148

It was a dramatically large number; is that right?

It was large, yes.

: tority

Dr. Selikoff actually concluded that the vast majori

of insulation workers usually smoked?

That’s correct.

He also concluded that insulation workers work in

enclosed spaces; isn’t that right?

I don’t recall seeing that specific line but they cer-

tainly did it many times.

Generally, insulators also work in confined boiler

rooms and other small spaces?

That's correct.

[498]

Thus, it is safe to say they were exposed to passive

smoke?

| wouldn’t say that. I don’t know.

You wouldn’t say that?

I] don’t know.

On page 207 from the same transcript, you were

asked, starting at agent line 12:

149

"Q. Didn’t Dr. Selikoff conclude that the vast

majority of insulation workers usually

smoked?

"A. That is true.

"Q. And, therefore, they were exposed to passive

smoking?

"A. Did he conclude that? Are you saying he con-

cluded that?

"Q. No. Would you agree?

"A. Yes. I think it is probably safe to say that

they were exposed to passive smoking."

You agree with that, right?

Certainly Dr. Selikoff did not look at the issue of

passive smoke. If you ask me whether insulators

were sometimes with co-workers who smoked or

themselves who smoked, in fact, at the job site, |

would say that is likely to be true. It was never

looked at as an issue.

In fact, in 1968 Dr. Selikoff did a Study that was

reported in the journal of the American Medical

[499]

Association where none of the individuals who did

not smoke who were exposed, heavily exposed to

asbestos on their jobs, got lung cancer; isn’t that

right?

150

I believe that is true. That was the smaller insulator

group.

In fact, there has never been a follow up on that

study, has there?

You have to show me the study.

Just as I read from it, it is asbestos exposure, smoking

neoplasia. What is a neoplasia?

Cancer.

It is by Irving J. Selikoff, E. Cuyler Hammond and

Jacob Churg and states, "Of 87 non-cigarette smokers

none died of bronchiogenic carcinoma, "which is a

type of lung cancer; is that right?

Correct.

Take a look and just tell me whether or not there has

been a follow up study of that?

This is the group of insulators from New York and

New Jersey?

Right.

this was a

Total number of workers was 370 and

subset of the 17,800 so it has been followed up but

they have been merged with the larger group of North

American insulators.

[500]

That is the 17,100?

151

800.

The 17,800 and of that there has been a total of four

non-regular smokers who got lung cancer; isn’t that

right?

Smoking information was available on about 12,000

out of the 17,8,000. That number four was true for

the first ten-year followup, between 1966 and 1976.

The question is four out of how many. How many

deaths were there out of non-smokers? I don’t recall

the exact number but it was in the -- a few hundred

at most; it was not the 17,800.

You have previously said these non-regular smokers

are smokers that smoked less than six months?

That’s true.

When was the last time you saw anyone in science

draw a conclusion based upon four cases out of

17,800?

It is not the only piece of information that is avail-

able, but it is important. This is the largest study

available and even within that group because there

were so many smokers it was a difficult issue to study

because there were relatively non-smokers. It is an

important number. it doesn’t stand alone but it is an

important study.

Did Dr. Selikoff think it was important?

That study?

DF BG

152

[501]

Yes.

By weight, these workers who were studied had actu-

ally worked in the insulation trade for at least 20

years; isn’t that right?

Correct.

Doctor, that number four could have been a little

higher and could have been a little lower?

That’s correct.

Because of the statistical variation?

That’s correct.

The smaller the numbers in any particular study the

less certain one can be that the single number ob-

tained actually represents the real number; isn’t that

right?

No. Actually the amount of --

Do you agree with that, yes or no?

No. The amount of uncertainty depends upon not so

much the size of the number as the number expected.

You disagree with what I just said?

153

Well, it is just a more compli ,

: plicated topic. | don’

really di n't

7¢ “td ce. The smaller -- smaller numbers are

That means the more ;

uncertainty, the less we are sur

that that ; e

pe a number, 4 out of 17,800, is actually a real

[502]

It is

~ a real number but it could easily have been 3 or

Page 211, continuing with-your trial testimony:

"Q. Didn’t Dr. Selikoff also state because of the

small numbers the ratio is subject to specific

Statistical sampling variation?

"A. That is true.

"Q. What does "specific statisti ;

tion" mean? mom! cumnpling varie-

little lower. The smaller the

number in an

particular study, the less certain we are tha

a single number obtained actually represents

real number." That was your testimony

Okay.

By the way, there is nothing ji

, g in that stud

cohorts that have followed it thai suggest Aaa

154

ever studied people who had never smoked at all,

isn’t that correct?

Well, again we get back to Dr. Selikoff’s definition

of his non-smoker which was smoking for less than

six months. As far as I know, there wasn’t ever a

defined group of people who had never touched ciga-

rettes. (Continued on next page)

[503]

It is a real number but it could easily have been 3 or

Page 211, continuing with your trial testimony:

"Q. Didn’t Dr. Selikoff also state because of the

small numbers the ratio is subject to specific

statistical sampling variation?

"A. That is true.

"Q. What does "specific statistical sampling varia-

tion" mean?

"A. It means that the actual number four could

have been a little higher, could have been a

little lower. The smaller the number in any

particular study, the less certain we are that

the single number obtained actually represents

the real number.”

That was your testimony then?

Okay.

155

By the way there is nothing j

° in that stud

cohorts that have followed it that Suggest Seen

ever Studied people who had never smoked at all

Well, again we get back to Dr

| . Selikoff's definitio

of his nonsmoker which was smoking for less than six

months. As far as | know, there wasn’t ever a de-

No, he is not.

If you take a look at Dr. Selik

offs numbers, 17

People were studied, is that right? =

Were in the study at the start.

Right. And 10 percent of tha

t would be 1,780. |

oat want bs 178. And .| percent or a tenth of

percent would be almost 18, and the number that

came up was actually a little bit less than .025 of a

percent. Isn't that right?

That's correct.

And you, in part, re!

eee y on that with respec the

Synergistic effect of smoking and sistas ae

No, I think the important number is the number of

oo a number of deaths was not 17,800. It

Irst ten years of the Study, about a couple of

> ©? 8B ?

156

thousand. Secondly, you have to look at the number

of deaths among nonsmokers. We only had informa-

tion on smoking for about two-thirds of the total

group for about 12,000. And the nonsmokers were in

the vast minority >f that group. So you are really

looking at -- the sirgle number you really need to

focus on is 4 out of how many nonsmoking deaths.

It is not 4 of 17,800.

So you would have expected, out of that number of

(505)

the never smoked regularly, that there be .7 deaths,

isn’t that right?

That’s right.

And instead there was reported to be 4 of the never

smoked regularly.

That's right.

And the numbers of people who had smoked was 268

deaths for people who had a history of cigarettes,

isn’t that correct?

That's correct. It was as of °76.

Right.

The number of nonsmokers were about 900, | believe.

The article was actually published in 1979.

Right. But it describes follow through 1976.

P > © >

157

Do you agree with this statement that Dr. Seliko

wrote: "However, because of the small numbers the

ratio is subject to considerable statistical sampling

variation. By chance, the observed number might

have been as low as | or 2 or as high as about 9

Therefore, all we can say is that the actual mortality

ratio is probably more than one but could be as high

Surely.

I would like to verify what you are reading.

or part in yellow (handing to the

All right.

Did you solicit any information at all from Mr.

Buckley -- oh, I am sorry, did I accurately read that?

Yes.

Did you solicit any information at all

from Mr.

Buckley about his hobbies or outside activities?

I believe I did.

158

Tell us what they are.

involved

; |. There are none that invo

| don’t really ive or any exposure to any IUng caf

cinogen.

Based upon what Mr. Buckley told you?

Of course. As you said, | spoke with Mr. Buckley

at the interview.

Doctor, just talking a little bit about your various

studies that you worked on, you mentioned something

159

And they have been working hard, it is hot, and they

need to get some fresh air?

That’s correct.

Yes.

And so we raised the issue actually, they came to us

with these questions -- as to whether there was

sufficient exposure to asbestos to cause some scarring

of the lungs. So we examined some 225 firefighters,

pretty much all of whom had had at least 25 or 30

years from the beginning of work as a firefighter.

What did you find?

Well, we found that the ones with a past history of

exposure to asbestos, that is to say, prior to fighting

[508]

fires, had a significant increase or about a third of

them had some scarring of the lungs or pleura. Most

of it was of the pleura, which we judged to be due to

asbestos. But even looking at the group that had no

other asbestos exposure other than fighting fires, that

about | out of 7 or 8 had some limited scarring of the

pleura, the covering of the lungs, indicating exposure

to asbestos.

That is, about three-quarters of what a fireman does

is the overhaul work which is after the fire, pulling

down the walls and ceilings in looking for the source

of the flame to make sure they got the fire out; right?

I never said what percentage of their time is spent --

160

Would you agree with that?

Actually, I don’t know. Firefighters have different

tasks at fires and you can’t actually call all of them

the same.

You know who Andrew Churg is, don’t you?

Yes. He is a pathologist at the University of British

Columbia.

And in fact is he the son of the Dr. Churg that

worked with Dr. Selikoff on a lot of these studies?

Yes.

And he has written a book on the Pathology of Occu-

pational Lung Disease?

[509]

Yes.

You haven’t written any textbooks on lung disease,

have you?

No, | haven't.

And, Doctor --

Actually, | edited a book that just came out on

tuberculosis in the workplace.

When you say edited, you mean that a lot of people

submit articles and you basically are the one that

helped decide, among other people, on what goes in

and what doesn’t?

16]

Well, | wrote a couple of the articles ;

a arti them

Solicited the other authors for cae z mee

Doctor, would you agree with Dr. Churg when he

Writes, with respect to occupational and environmental

BA. important to be aware that exposure to haz-

a me bonts can and do occur outside the workplace

1s Often useful to solicit information on potentially

[510]

the patient's smoking history is mandatory.”

You would :

; - with that? Nothing Particularly

Yes.

fro i han8e Your opinion at all in this case to

macy — y pening in addition to working as a

ood pas some firefighting on a volunteer

I didn’t learn of that. I asked in detail how often he

fights fires, i

ene yaa arama of the fires he is involved

162

i know in fact that there is a brigade at

an eNonth where he could be asked to fight fires at

Grand Central Terminal?

Did you know that?

No, I didn’t.

Actually, I mean, I didn’t write it down, | don’t recall

it being said. He may have volunteered it.

But you didn’t write it down.

That’s correct.

And you don’t have any recollection of it now?

That’s correct.

Doctor, we were talking a little bit about latency

period, and you would agree that that latency ae

could be as low as ten years for lung cancer, is that

right?

(511)

Could be. The risk appears to begin, at least these

days, to begin at ten years.

Wha ‘sm in the

i _ Buckley’s risk of lung cancer in

penal aa asbestos exposure from 1985 to 1988?

His absolute risk?

163

Yes.

Given the smoking history of a little bit less than 20

years, a pack, with zero asbestos exposure?

No one has zero asbestos exposure; we learned that

this morning from Dr. Nicholson.

Zero occupational exposure. He would have some

risk of lung cancer. I can’t give you the absolute

risk.

But if he hadn’t quit smoking that pack a day and had

continued for another 20, 30 years, his risk would be

about what?

His risk would be -- well, again | never said he

smoked a pack a day. He told me he smoked less

than a pack a day. His risk would be in the range of

-- what is the total cigarette smoking you are saying?

Assume 40 years.

40, a pack, years would be a moderate level, it would

be 3 to 4 to 5 times the background risk, depending

on the study.

3 to 4 times as high as someone who is a nonsmoker?

[512]

That’s correct.

Part of your opinion, according to your report, is you

assume that Mr. Buckley had exposure to asbestos

daily for two and a half years.

164

That is what I was told. I didn’t assume it. That is

what I was told.

Isn’t it true that the reason Mr. Buckley needs

medical surveillance is not exclusively because of his

asbestos exposure but because of his long history of

smoking?

Well, it would contribute to the lung cancer risk. In

that sense, it would contribute to the need for medical

surveillance.

Doctor, basically you would agree that people, once

they get to be around 40, should have regular

physttals, isn’t that right?

40 or 45. Between 40 and 50, I'd say.

Doctor, you would also agree that somebody who has

been a smoker for 20 years certainly falls in the

group of people who should regularly have chest x-

ravs?

Well, actually, for cigarette smokers who have no

known exposure, occupational exposure to asbestos,

it isn’t entirely clear whether x-rays would help them

or not; that is to say, whether a regular x-ray would

allow detection of the cancer in an early-enough stage

for it to be cured. In

(513)

the context of cigarette smoke and occupational

exposure to asbestos, the fact that the lung cancer risk

is higher, that group hasn’t specifically been studied

for utility of chest x-rays, but it would make sense

tM it would be useful and that one stands a reason.

able chance of detecting |

ung cancer

And in fact if you catch |

ung cancer ear]

“s y, you can

aa have Surgery, and if you catch it too late

can't have surgery,. isn’t that right?

In general, yes,

pe Periodic medical meet wrote tha

net re rt ren ical surveillance for his

That’s correct.

You also told him that

smoking, is that right? M4 Mt sume cigarene

That is correct.

In 1990 I was sent, I believe, two Or three.

Larry Brown?

Larry Brown was one.

And also Daniel Nelson?

2 > © > © P

> 2 > © > L

166

[514]

That doesn’t ring a bell, actually.

Hugh Campbell?

Hugh Campbell’s name sounds familiar.

Duane Brooks?

I don’t recall him.

Let me just show you this and see if this refreshes

your recollection (handing to the witness).

Well, Daniel Nelson, the physician down here is Ruth

Lilis.

She works with you?

At the time, yes. Hugh Campbell, my name is down

here. Michael Buckley is Robin Herbert. Duane

Brooks is Steven Levine. It is very clear at the

bottom of the page who the physician is.

And they all work with you?

They are all at Mount Sinai.

In your group?

Dr. Lilis is pretty well retired.

But in 1990, Doctor --

That’s correct.

167

-- they all worked at the Occupational Health Clinical

Center?

That’s correct.

Doctor, you are the one who saw Larry Brown, isn’t

that right?

[515]

That’s right.

And when you saw Larry Brown, you found out that,

unlike Mr. Buckley, he wasn’t a smoker?

Well, I saw him in 1990 and | haven’t looked at his

record since that time, but, as | recall, I don’t believe

he was a smoker.

And you conclude that his exposure to asbestos was

significant, isn’t that right?

May I see the report?

Sure. The first question is whether you concluded his

asbestos exposure was significant.

What I said was, reading:

"Hence, Mr. Brown is unfortunately at increased risk

for one or more of the diseases known to be associat-

ed with asbestos. Fortunately, he does not smoke

Cigarettes and is unlikely to be exposed to asbestos

again. I advised him against either of those toxic

exposures."

I think there is a page where you said -- I can maybe

approach and show you -- you said, "Unquestionably

he had significant exposure to asbestos.

That’s correct. That is what I said.

Doctor, in this report, unlike the one -- by the way,

this is also written to Mr. Goetsch?

] believe so.

You remember that Mr. Goetsch sent you all these

[516}

people, right?

I don’t know what you mean by "all these people.”

Well, people we just went through.

Most of them were seen by other physicians at Mount

Sinai.

The other people, all right. Mr. Goetsch sent you

Mr. Brown?

That’s correct.

Doctor, isn’t it true that, because Mr. Brown was not

a smoker, you never wrote there, as you did with Mr.

Buckley, that he needed periodic medical surveil-

lance? Yes or no.

The smoking factored into it, certainly, because --

2 -? © >?

169

Question: Did you write in that report for Mr. Brown

that he needed medical surveiilance in his future?

I did not write that to Mr. Goetsch.

And did you write that with respect to Mr. Buckley?

Yes, I did.

And the difference between the two is one was a

smoker and one wasn’t?

Well, that is one difference. Mr. Buckley is now ten

years from his onset of exposure to asbestos, because

he began in '85, whereas Mr. Brown, when | saw

him in °90, I

[517]

believe that his exposure began in "87. So he was

just three years. And since we don’t expect to see

any of the effects for at least ten years, it is a pro-

jection into the future to give him that advice. | may

have given him that advice in person as a patient, but

I did not write it in the report.

Doctor, obviously, as someone who is an expert in

occupational medicine, it would be unusual to write

people should get an exam every three years or get an

exam in five years or get an exam five years after

exposure, isn’t that right?

That's correct.

MR. LANDMAN: Your Honor. maybe if we took a

break. I don’t have much more time

170

for the doctor. I just need a couple

minutes, and | can shorten this if now

would be an afternoon break.

THE COURT: That is a very admirable suggestion.

(The jury left the courtroom.)

(Recess)

THE COURT: You may proceed.

BY MR. LANDMAN:

Doctor, | won’t go through all these animal studies

with you. | just want to ask you one question.

In one of these studies, the one by Dr. William

Rone, who is at New York University School of

[518]

they did with the animals is, am | correct, that they

gave them 12 months of intratracheal injections --

Yes, they --

1 will show it to you. -- injections of chrysotile

asbestos and they found that there was an increase in

the number of alveolar macrophages and neutrophils,

accompanied by fibrosis. Is that right? | will show it

to you (handing to the witness). What | am really

interested in is whether or not what they did is gave

these animals these 12 months of intratracheal injec-

tions.

171

A sheep.

o> 2 >

172

But it has no effect on the body in itself, just pleural

scarring?

That is not true.

What effect does it have on a person?

Accumulation of scars, if sufficient in the pleura, ca

cause respiratory symptoms and can interfere wi

function. It is very limited in extent that

it won’t do it, but as it increases it will do that.

And it means you sometimes get shorter breath, is

that right?

That’s probably the cardinal symptom.

In 1990, when your colleague saw Mr. Buckley at

the request of Mr. Goetsch -- your colleague s name

is Robin Herbert, Dr. Herbert?

Correct.

She works with you?

Correct.

And you saw that she also wrote a wrote to Mr.

Goetsch in this case, is that right?

That’s correct.

ie A ee

173

[520]

What she found is that he was able to walk 15 to 20

miles a week and walk up seven flights of stairs with

no difficulty. Is that right?

That’s correct.

When, by the way, did Mr. Buckley tell you he first

received a respirator?

In either late °87, or, I believe it was, 1988.

I believe your report says -- take a look. You can

refer to your report, Doctor, whenever you need to.

OK.

Page 2, the second paragraph: Beginning early 1988

and continuing, Mr. Buckley was given a respirator

and some training. Is that right?

That’s right.

So he told you that when he got his respirator in early

1988?

I believe so.

Do you know when?

No.

Would it change your-opinion at all in this case if

you knew he actually had gotten a respirator in 1987

174

in terms of the amount of exposure he would have

had?

It depends when in 1987. December or November it

really doesn’t affect much the total quantity of expo-

sure.

But before that it could change your opinion?

[521]

It is a relative amount. You know, in my view he

had two and a half to three years of quite significant

exposure. If it is a few months less, then it would be

that much less exposure and that much less risk, but

the basic increase in risk would still be retained.

By the way, your whole opinion on that in terms of

exposure again is from Mr. Buckley?

It’s, again, what happened at the job came from him

to me.

By the way, Doctor, you didn’t note this in your

report four years later, anything about it, but your

colleague noted that Mr. Buckley b

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.