General Medical Considerations and Cross-Examining the Plaintiff s Experts

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1 General Medical Considerations and Cross-Examining the Plaintiff s Experts November 2012 Bruce T. Bishop Kevin P. Greene Eric D. Cook Willcox & Savage 440 Monticello Avenue, Suite 2200 Norfolk, VA

2 The entire PowerPoint can be downloaded from the Willcox & Savage, P.C. Website: 2

3 Examples of using the plaintiff s state-of-the-art expert to sponsor your good company story 3

4 Referring to an example of a UCC Toxicology Report in a tape joint compound brochure Q. And it goes on and states, quote, Several years ago it was reported that there was an increase in the incidence of cancerous tumors, especially of the lung, associated with asbestosis. And you would agree that initially the reports of lung cancer in asbestos workers, particularly factory workers, was usually associated with asbestosis initially, correct? Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. 4

5 A. Yes. That was how it became obvious at first that there was a cancer hazard from asbestos to people almost everywhere had an excessive rate of cancer of the lung. Q. Okay. And it goes on to state, quote, Recently there have been reports of some cancers occurring in individuals exposed to asbestos dust, but who have not developed clinical asbestosis. Did I read that correctly? A. Yes. Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. 5

6 Q. Now -- so it talks about individuals exposed to asbestos who developed cancer, does it not? A. It does. Q. And it also talks about control of asbestos exposures, does it not? A. Yes. Q. It says, Control of asbestos dust exposure is, therefore, necessary. The control methods are the standard ones applicable to a variety of dusty operations. They include closed flow systems, wet processes where possible, and adequate exhaust ventilation where openings in the system are necessary. Those are good recommendations, are they not? Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. A. They are. 6

7 Q. And, in fact, those mirror some of the recommendations that Dr. Meriweather presented in his report in 1930, correct? A. Generally, yes. Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. 7

8 Q. And the brochure goes on to state, quote, Employees should wear respirators where dusting occurs in finished products such as sanding taped joints. Is that what it states? A. Yes. Q. So it's recommending that employees that are sanding tape joints wear respirators? A. Yes. Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. 8

9 Q. Then it goes on to state, Preemployment and periodic physical examinations of workers are desirable. These should include chest X-rays to ensure that the worker has no chest condition prior to work with asbestos, and to determine that no lung changes are resulting from work with asbestos. And, again, you would agree that recommendations of preemployment and periodic physical examinations of workers is a good recommendation? A. Yes. Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. 9

10 Q. Now, you're aware, are you not, that in 1969, Union Carbide published an amended asbestos toxicology report? A. I understand that they did, yes. Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. 10

11 Q. The report states, quote, A type of cancer named mesothelioma has been noted to be associated with asbestos exposure in recent years. These tumors, while rather few in number to date, may occur in individuals with histories of only slight exposures, and that as much as 20 to 40 years earlier. Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. 11

12 There is considerable evidence that crocidolite is most frequently associated with mesotheliomas. From the data available, it appears that the TLV of 5 MPPCF -- and that's millions of particles per cubic foot of air? A. Right. Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. 12

13 Q. -- may not be low enough to protect against mesothelioma. Research on the problem continues. Did I read that correctly? A. You did. Q. Now, can you identify any other supplier, bulk supplier of asbestos, that was telling its customers in 1969 specifically about mesothelioma, that it could occur in individuals with relatively small exposures below the threshold limit value of five million particles per cubic foot of air? Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. A. In '69? The only other supplier we've seen many documents on is Johns- Manville, and I don't recall them telling people -- telling people that. 13

14 Example of specific cross examination to establish no literature about your product and disease until a certain date. 14

15 Q. You would agree, would you not, from your review of the peer-reviewed medical and scientific literature that the first article that specifically dealt with joint compound and asbestos exposure was published in Science in 1975? A. Yes, I think so. Science being Science Magazine. Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. 15

16 Examples of cross examination to establish Plaintiff s manufacturer and not the fiber supplier that decides on product formulation and labeling 16

17 Q. Now, you would agree, would you not, that the manufacturer of the joint compound -- and it's true whether it's joint compound or any other product -- they -- they decide on the formula for the product, correct? A. Right. Q. And the manufacturer, in this case of the joint compound, but it could be of another product, they decide on what the labeling is going to be, do they not? A. They do. Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. 17

18 Q. And if a manufacturer of a product such as joint compound decides to place labeling on a product, warning of a health -- of a health matter, the language that they use is their decision, correct? A. Yes. Testimony of Barry Castleman, M.D. taken June 8, 2010, McCauley, et al v. Louisville Gas and Electric Company, et al. 18

19 Example of using personal experience of a Plaintiff s expert that is inconsistent with his expert testimony 19

20 Q. The appropriate control measures that you talked about in redirect, when you did a brake change with your mechanic in the early 1980's, you didn't use vacuuming, correct? A. I didn't have an appropriate vacuum. Q. And you didn't use at respirator, correct? A. I didn't have one to use. Testimony of Arthur Frank, M.D., taken January 30, 2012, Webber v. Ford Motor Company 20

21 Examples of demonstrating that a Plaintiff s expert didn t follow his own advice in considering Plaintiff s occupational/exposure history 21

22 Q. And, finally, you were asked questions about how to take a proper history, correct? A. Yes. Q. And that that's something that you train your residents on; is that not correct? A. I try, and students. Q. When the patient is actually available to take the occupational history from, that is the preferred approach, correct, you talk to the patient? A. Preferred compared to what? Testimony of Arthur Frank, M.D., taken January 30, 2012, Webber v. Ford Motor Company 22

23 Q. Compared to taking a history from someone else or a summary that is prepared by someone else, correct? A. Well, it's certainly better to take it from the person rather than a family member but, again, many times the person has died. And, again, as you clearly pointed out, I was not taking care of the patient. I was relying on the history given to me by the attorney, which is what I had to work with and how I based my report, and have testified to for three days now. Testimony of Arthur Frank, M.D., taken January 30, 2012, Webber v. Ford Motor Company 23

24 Design your Request for Production to gain access to useful cross-examination documents 24

25 REQUEST FOR PRODUCTION 8. With respect to the article co-authored by Dr. Finkelstein, styled, Malignant Mesothelioma Among Employees of a Connecticut Factory That Manufactured Friction Materials Using Chrysotile Asbestos, Ann. Occup. Hyg., 54:692-6 (2010) (the Article ), copies of (1) any correspondence, s, records, documents, and materials that Dr. Finkelstein reviewed or relied upon in preparation of the Article, specifically including any and all work histories and pathological reports referenced in the Article and that form the basis of the information in Table 1 of the Article, and (2) any correspondence, s or other record of any and all communication between the co-authors of the Article, or Dr. Finkelstein and any attorney, either before or after the publication of the Article. 25

26 from Dr. Murray Finkelstein dated January 9,

27 Examples of Ineffective Cross Examination 27

28 Q. Have you previously had on other resumes other grants that other folks have given you money for stuff? A. Yes. These are the two that are active today. Q. And the one that I've got highlighted, that's the Department of Defense Grant? A. Yes. That's the one that's supporting the development of the new antioxidant drug. Q. And that was the biodefense grant that you got, was it $1.6 million? A. It's been going on for a number of years and I don't remember total, but it would be on that order. Testimony of James D. Crapo, M.D. taken on June 11, 2010, Eddie McCauley, et al., v. Louisville Gas and Electric Company, et al. 28

29 Q. And your brother, who is a United States senator, helped get that grant, correct? A. I think that he -- it was actually proposed as a much larger grant for the National Jewish Hospital through our senator, originally Senator Ken Salazar proposed it, and my brother is one of the people who signed on to the overall bill. Q. Your brother is Michael Crapo? A. Yes. Q. He's the United States senator from Idaho? A. That's right. Testimony of James D. Crapo, M.D. taken on June 11, 2010, Eddie McCauley, et al., v. Louisville Gas and Electric Company, et al. 29

30 Q. And he got this grant or National Jewish got this grant to which you got work or $1.6 million, and the military didn't even ask for this research to be done, correct? A. This was a Senate earmark by the chair of the Senate committee in charge of the Department of Defense. Testimony of James D. Crapo, M.D. taken on June 11, 2010, Eddie McCauley, et al., v. Louisville Gas and Electric Company, et al. 30

31 Q. This is an earmark for biodefense research that the military didn't even want to have done, correct? A. I'm not sure -- the military wasn't asked that question. I do have military colleagues that are -- that are interactive with me on this, and have asked for and acquired -- like, for example, the Army's -- the military's radiation biology defense section has asked for the compound so they could test it in their system, as well. Testimony of James D. Crapo, M.D. taken on June 11, 2010, Eddie McCauley, et al., v. Louisville Gas and Electric Company, et al. 31

32 The reason why the Senate put an earmark in for this is that it's a potentially very powerful radio protectant that could protect against radiation injury. The interest of the Department of Defense is that they face the possibility of someone using a thermonuclear weapon and there's no therapy once a person is exposed. Testimony of James D. Crapo, M.D. taken on June 11, 2010, Eddie McCauley, et al., v. Louisville Gas and Electric Company, et al. 32

33 The reason the Congress is interested in it in addition to that, is that a dirty bomb is one of the biggest terrorist threats that we have no preparation for today. And the low level radiation injury that would occur to millions of people from that, there's no therapy for it. And this drug has extraordinary protective powers against radiation injury. I can give the drug to an animal and give it a dose of radiation that would totally scar the lung or would destroy the bowel and I can block it out completely. And that's been published by multiple groups, even groups that I'm not an author with. So it's probably the most powerful anti-radiation drug ever developed. Testimony of James D. Crapo, M.D. taken on June 11, 2010, Eddie McCauley, et al., v. Louisville Gas and Electric Company, et al. 33

34 And they're very enthusiastic about getting that in place before there is a dirty bomb. And that's why -- my brother is very aware of it. He was glad to sign on to the bill, and so was the chair of the finance committee for the Senate who was responsible for DOD. Testimony of James D. Crapo, M.D. taken on June 11, 2010, Eddie McCauley, et al., v. Louisville Gas and Electric Company, et al. 34

35 Q. You're not an epidemiologist; an epidemiologist is the study of disease causation, and that's not your area, right? A. I am not a board certified epidemiologist, but I do direct the COPD Gene study which is the 1 largest NIH funded epidemiology study in the history of our nation. Testimony of James D. Crapo, M.D. taken on June 11, 2010, Eddie McCauley, et al., v. Louisville Gas and Electric Company, et al. 35

36 Q. But were you the primary author, were you the lead author? Pinkerton was. He's the one that did the research. A. I don't think you understand how authorships work. Do you know which is the most prestigious position in the authorship of a paper? It's the last author, not the first author. Q. So if a paper -- if I've got a paper in the Journal of Toxicology with my name and my name is the last name in there, that means I'm the most prestigious? Testimony of James D. Crapo, M.D. taken on June 11, 2010, Eddie McCauley, et al., v. Louisville Gas and Electric Company, et al. A. Generally that's what it means in the scientific literature. The senior author who is responsible for the overall work is -- takes the last position. 36

37 And the -- usually it's one of our trainees or young person that takes the first position. And so that might be their first paper, it's my 200th paper. So in medicine you generally find the most responsible prestigious name to be the last one. Testimony of James D. Crapo, M.D. taken on June 11, 2010, Eddie McCauley, et al., v. Louisville Gas and Electric Company, et al. 37

38 Q. The last slide that you were shown, Doctor, was a slide from the Brigham and Women's Hospital, and it had some handwritten notes on it. I don't think any of us could read the first word, but then it said "History: Asbestos exposure times two years in construction," and then it had some little note about maybe less than or equal to or something. There was a little note there. Do you remember being asked that question and shown the record? A. Yes. Testimony of James Crapo, M.D. taken February 9, 2010, Ferrell v. Borg Warner Corporation 38

39 Q. You have no idea whether it was anybody at that hospital or any other place who actually wrote in that particular note? A. That's correct, his handwritten note. I thought it was interesting because it meant the person reviewing the note thought that was an important fact that was missed, and I assumed that that was why it was written in hand. Testimony of James Crapo, M.D. taken February 9, 2010, Ferrell v. Borg Warner Corporation 39

40 Q. I want to tell you, Dr. Crapo, I agree with you, and I'm not disputing that Mr. Ferrell had exposure to an amosite product throughout his life. My question simply is, there is nothing to point to you from what you've reviewed to indicate that whatever that amosite exposure was, you can't say it came from construction; is that correct? Testimony of James Crapo, M.D. taken February 9, 2010, Ferrell v. Borg Warner Corporation 40

41 A. Well, I can say that without being absolutely sure, but I can say that it was a high probability. Everything that I read from his deposition, there was nothing identified that I could find that would have likely had a significant amosite exposure, and it had to be a fairly substantial amosite exposure to give that much burden to his lungs, except for the construction, because in construction, a lot of thermal insulation is used, and there are many types of construction work that include exposure to a variety of products that contain amosite or crocidolite, and so you could argue that the construction work didn't do it, but then you would have to say, well, where did he get it? Testimony of James Crapo, M.D. taken February 9, 2010, Ferrell v. Borg Warner Corporation 41

42 Well, maybe he went down to the boiler room and smoked cigarettes secretly. I mean, I am making something up. If you are going to create a scenario like that, you can get a source for it, but all I know is that he had it, and the most likely place was the construction. Testimony of James Crapo, M.D. taken February 9, 2010, Ferrell v. Borg Warner Corporation 42

43 By the way, when you say "increased risk, what do you mean? Are you saying that automotive workers, their only exposure is to asbestos from brakes, that they have no risk of getting mesothelioma, or are you saying that they still have a risk of getting mesothelioma just not, quote, increased? Testimony of Patrick Hessel, taken February 9, 2010, Ferrell v. Borg Warner Corporation, et al., A. There's some mesotheliomas that occur spontaneously that are not related to asbestos exposure at all and there's some vehicle mechanics, like we saw in this one study, where they are exposed to other things. For example, they might have been insulators and they might have worked in a shipyard. So those people -- so they would have a risk, but the risk is not increased because they've done vehicle repair work. 43

44 Q. And now, sir, your metaanalysis, did that -- explain again what a meta-analysis is. A. Sure. What we did was to take a number of different studies that had been done and the results of those studies, the relative risks that came from each of those studies. And then we did another study that used -- it's a study of studies. Testimony of Patrick Hessel, taken February 9, 2010m, Ferrell v. Borg Warner Corporation, et al., 44

45 So we used -- it was almost like the study subjects were the results from each of these papers. And then we did an analysis that gave us an overall relative risk estimate for all of the studies. Testimony of Patrick Hessel, taken February 9, 2010, Ferrell v. Borg Warner Corporation, et al., 45

46 Q. What new data, what study did you do -- what did you do as part of your meta-analysis that is new data, meaning, like, you looked at new workers? Did you look at any new workers that were not in any of the other studies? A. Sure. And your question is a good one. And if you had an ardent meta-analysis at the other end of this conversation, they would be angry with you. But I won't be. Testimony of Patrick Hessel, taken February 9, 2010, Ferrell v. Borg Warner Corporation, et al., 46

47 The new data that we came up with was the overall relative risk for pipe involved -- for vehicle mechanics in relation to mesothelioma. So that's a result that doesn't appear anywhere else in the literature. We also look at those studies, only those studies that looked at brake work specifically, and we calculated another relative risk for those studies. We also looked at all of the case-control studies, just all of the case-control studies, and we calculated a meta relative risk for all of those studies. And those results don't exist anywhere else. Testimony of Patrick Hessel, taken February 9, 2010, Ferrell v. Borg Warner Corporation, et al., 47

48 I want you to assume that chrysotile can cause mesothelioma at any level. At any level. A. Okay. Q. Does that change your opinion, with regard to brake workers and exposure to chrysotile asbestos, as a cause of their disease, mesothelioma? A. No, absolutely not. The literature is very clear. Q. No, no. This was a hypothetical, sir. You're an expert? A. Yes. Testimony of Patrick Hessel, taken February 9, 2010, Ferrell v. Borg Warner Corporation, et al., 48

49 Q. You've been given hypotheticals before. The hypothetical is that your opinion of fibers that you've read about, okay, is not -- disagrees. For instance, hypothetically let's say that a doctor testified here for the Plaintiff or let's say the governmental agencies out there, the World Health Organization, the EPA, have all agreed that all types of asbestos at all levels can cause mesothelioma, including chrysotile. Does that change your opinion that brake mechanics exposed to chrysotile cannot get mesothelioma working as a brake mechanic? Testimony of Patrick Hessel, taken February 9, 2010, Ferrell v. Borg Warner Corporation, et al., 49

50 A. Absolutely not. The studies are very consistent and very clear that vehicle mechanics, brake mechanics are not at increased risk. That's the data. Testimony of Patrick Hessel, taken February 9, 2010, Ferrell v. Borg Warner Corporation, et al., 50

51 Examination of a treating physician to support a lack of exposure history and that most peritoneal mesotheliomas are idiopathic 51

52 Q Good afternoon, Doctor. I have some additional questions for you now. You indicated earlier that you first saw Mr. Webber in November of 2010; is that correct? A Correct. Q And at that time, as part of the protocol, a history was taken, not only a history of any potential past exposure to asbestos, but also a social and medical history; correct? Deposition Testimony of James Francis Pingpank, M.D. taken on 12/12/11, Webber et al. v. EB Products co., et al. 52

53 A There was a -- we do not do an extensive history with regard to asbestos exposure. As you have noted, I am not an expert in documenting asbestos exposure and therefore we do not spend a detailed amount of time documenting their exposure to asbestos. Q But as you pointed out earlier, what the standard protocol is to ask the patient if he had any prior exposure to asbestos, and then you record whatever information the patient provides you; correct? A Correct. Deposition Testimony of James Francis Pingpank, M.D. taken on 12/12/11, Webber et al. v. EB Products co., et al. 53

54 Q And in Mr. Webber's instance, what he indicated was that he denied any history of exposure to asbestos, except for when he was in elementary school; correct? A That is what the document says. And if you look a couple of pages beyond that, at page 38 of your records, Bates stamp, at the bottom, it indicates that you explained to the patient the difference between pleural mesothelioma as well as peritoneal mesothelioma, quote, He explained that." That would be you; correct? Deposition Testimony of James Francis Pingpank, M.D. taken on 12/12/11, Webber et al. v. EB Products co., et al. A Correct. 54

55 Q "He explained that peritoneal mesothelioma only occurs in 20 percent of the cases as opposed to the chest, which occurs in 80 percent of the cases. He did explain to the patient that usually the outcome is more favorable in the peritoneal mesothelioma. Do you see that? A Yes. Q And you have written about that; have you not? A Yes, I have. Deposition Testimony of James Francis Pingpank, M.D. taken on 12/12/11, Webber et al. v. EB Products co., et al. 55

56 Q If you look, Doctor, at the bottom of the first page of the article you talk about the fact that malignant peritoneal mesothelioma accounts for 15 to 20 percent of all mesothelioma; which is consistent with what you told Mr. Webber just a few months prior to the publication of this article; correct? A Correct. Deposition Testimony of James Francis Pingpank, M.D. taken on 12/12/11, Webber et al. v. EB Products co., et al. 56

57 Q And you go on to state, quote, "There is growing evidence that malignant peritoneal mesothelioma differs from pleural mesothelioma. It has a distinct natural history and afflicts both sexes approximately equal. That means that it develops in males and females approximately the same percentage? A Correct. Deposition Testimony of James Francis Pingpank, M.D. taken on 12/12/11, Webber et al. v. EB Products co., et al. 57

58 Q And you go on to state, "Whereas pleural mesothelioma has a higher incidence among men and the contribution of asbestos exposure as an etiologic factor is not as well established malignant peritoneal mesothelioma. Now, etiologic factor refers to causal factors; correct? A Correct. Q And you, in fact, cited two articles to that sentence. The first article was an analysis of the SEER data. A Yes. Deposition Testimony of James Francis Pingpank, M.D. taken on 12/12/11, Webber et al. v. EB Products co., et al. 58

59 Q And you, in fact, cited two articles to that sentence. The first article was an analysis of the SEER data. A Yes. Q And that was an article by Dr. Suresh Moolgavkar, was it not? A I will take your word. Yes. Looking at it yes. Deposition Testimony of James Francis Pingpank, M.D. taken on 12/12/11, Webber et al. v. EB Products co., et al. 59

60 Examples of cross on diagnosis (WDPM v. DMPM) 60

61 Q Now, I want to turn and ask you a few questions about your background in seeing cases of well-differentiated papillary mesothelioma of the peritoneum. And you told us earlier that it's a very rare -- a rare entity. And, in fact, it's very rare, in your experience, is it not? A Yes. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 61

62 Q You, in fact, have seen one case, or one or two cases in your hospital practice? A I remember clearly one case which I used for a conference and elaborated and spoke about at length, a local case. There may have been another one. There may have been another one from the testicular origin, but it's -- it's a rare variant of a rare tumor. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 62

63 Q Now, I think you told us earlier that at the time you made your diagnosis and offered your initial report in this case, in 2008, you had seen some medical records, and you had reviewed and interpreted some special stains and looked at the pathology, correct? A Yes. Q And the special stains, in fact, were not helpful in distinguishing between the two possibilities? A Correct. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 63

64 Q The well-differentiated papillary mesothelioma of the peritoneum versus diffuse malignant peritoneal mesothelioma, correct? A Yeah. It only establishes -- establishes origin of the tumor in the peritoneal lining cells, no more. Q So it wouldn't have been helpful in distinguishing between these two types of tumors, correct? A It would not. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 64

65 Q You talked about reviewing CT scans and PET scans; do you recall that? A Yes. Q Now, you had an opportunity, earlier, to be deposed in this case, did you not? A Yes. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 65

66 Q At page 31 of the deposition at line 15, you are asked, "At the time you authored your August 2008 report, did you have an opportunity to look at any PET scans or CT scans?" And your answer was, "No," correct? A I never look at -- as a rule, I never look at the actual images. I look at the report which is rendered by a radiologist. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 66

67 Q Well, the next question was, "Did you review any records of PET scans or CT scans?" And your answer was what? A My answer was, "No." Q So as of the time of your deposition in this case in August of 2009, your recollection was, at the time you authored your report, you hadn't seen the medical records, the CT scans or the PET scans for Mrs. Larson, correct? A If you say so. I don't recall. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 67

68 Q And, in fact, you had indicated earlier that you were a member of the Mesothelioma Interest Group? A Yes. Q... this is an article by a panel of the International Mesothelioma Interest Group. And it's an article published in Archives of Pathology and Laboratory Medicine in 2009 styled, "Guidelines for Pathologic Diagnosis of Malignant Mesothelioma. A Consensus Statement," from the International Mesothelioma Interest Group. And you've seen this article before, have you not?... A Oh, yes, I have seen it Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 68

69 Q And in that article they state, "The diagnosis of malignant mesothelioma must always be based on the results obtained from an adequate biopsy in the context of appropriate clinical, radiologic and surgical findings." And that's something you would agree with, would you not? A Yes. It is less important for the peritoneal mesothelioma as opposed to the chest-located tumors. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 69

70 Q And also in the article, Dr. Gibbs and his colleagues state, "The pathologist should always take the clinical, radiological and pathologic features into consideration." And you would agree with that, would you not? A Yes. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 70

71 Q Let me hand you a very recent review article by Dr. Dodson and colleagues styled, malignant Mesothelioma: Facts, Myths and Hypotheses. Q Now, Dr. Dodson and colleagues state, "Special caution must be exercised when making the diagnosis of epithelial peritoneal mesothelioma in females, because peritoneal mesothelioma can sometimes be mistaken for other tumor types that involve the peritoneum due to overlapping histological patterns. And I take it you would agree with that, correct? A Yes. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 71

72 Q And they go on to state, "In particular, peritoneal mesothelioma must be distinguished from primary and secondary serous papillary carcinomas of the peritoneum and ovary, welldifferentiated papillary mesotheliomas of the peritoneum." A Yes. Q And you would agree with that, would you not? A Yes. Q And you told us earlier that this has been labeled a difficult case, diagnostically, correct? A Yes. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 72

73 Q And you told us earlier that this has been labeled a difficult case, diagnostically, correct? A Yes. Q And, in fact, distinguishing between those two can be difficult, correct? A Yes. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 73

74 Q And Dr. Dodson and colleagues go on to state, "Similar to its pleural counterpart, immunohistochemistry, histology, electron microscopy, radiological imaging and clinical experience are crucial in making an accurate diagnosis which can have wideranging effects on subsequent treatment. And you would agree with that, would you not? A Most -- most of that sentence, yes. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 74

75 Q What part of it do you disagree with? A Well, I'm not sure how -- how -- how useful a CT scan of the abdomen would be, short of discovering an ovarian tumor. Otherwise, the differential still would be fully uncertain. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 75

76 Q And in January of 2009, at the Cancer Clinic in the University Medical Center in Tucson, Arizona, the doctor stated, quote, "The patient currently is in remission and has been advised at this time to follow up three -- follow up every three months. A recent PET CT scan was normal. And I take it, obviously, if the PET or CT scan is normal, that means they don't find any evidence of malignancy on the PET or the CT scan, correct? Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 76

77 A Well, a PET scan relies on metabolic activity, so since welldifferentiated papillary mesothelioma would have low activity, I would not know whether the PET would be helpful, whether the PET would be positive or not. Q It would light up like a Christmas tree with diffuse malignant mesothelioma of the peritoneum, wouldn't it? A Often, yeah. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 77

78 Q We haven't located a copy of the actual records. I'm going to ask it in the form of a hypothetical. Let me ask you to assume, hypothetically, that in a subsequent visit to the Mayo Clinic in December of 2010, the clinicians at the Mayo Clinic, or doctors, indicated that, "In general, she feels well and her performance status was of one -- and there was no evidence of progressive disease based on a CT scan reported from January 2010 and a PET CT scan in March of Do you have those hypothetical facts in 5 mind? A Yes Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 78

79 Q I take it you would agree that is entirely consistent with the clinical course of a welldifferentiated papillary mesothelioma of the peritoneum, is it not? A It is. Deposition testimony of Jacques Frederick Legier, M.D. taken on May 6, 2011, Larson, et al. v. Georgia Pacific Corp., et al. 79

80 Examples of using Plaintiff s expert to support your Defendant s good conduct story 80

81 Q: Now, I want to move on to the NIOSH Intelligence Bulletin which was issued in It was styled Current Intelligence Bulletin Number 5 and further styled Asbestos Exposure During Servicing of Motor Vehicle Brake and Clutch Assemblies. And you're familiar with that; correct? A: Yes. Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 81

82 Q: And I think you've stated in the past that you think this, for purposes of a summary, is a pretty good summary of the precautions to take to minimize any risk associated with asbestos-containing friction dust; correct? A: Well, it was a better summary of precautions than had previously been appeared in any place that I can think of. Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 82

83 Q: In your textbook at page 564, there's a reference to the Friction Materials Work Practices Guide, published by the Friction Materials Standards Institute in October 1978, is there not? A: Yes. Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 83

84 Q: And the brochure that's attached, the FMSI brochure styled Friction Materials Work Practices Guide, contains not only a written description but also pictures to help illustrate the precautionary measures that should be taken by workers working with asbestos-containing friction materials; correct? A: Yes. Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 84

85 Q: And you would agree, with you not, that the two general sources of potential exposure to asbestos from the use of asbestos-containing friction materials are the brake-wear dust that may be in the wheel well upon removing the old brake linings and, where necessary, when new brake linings had to be ground or grinded before properly fitting on the drum; correct? A: Yes. Q: And both those areas are covered in the FMSI brochure, are they not? A: Yes, they are. Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 85

86 Q: And in fact, if you compare the FMSI brochure published in 1978 to the NIOSH Current Intelligence Bulletin issued in 1975 let me ask you this way initially there's not anything in the NIOSH bulletin that wasn't covered in the FMSI work practices guide, was there? A: Well, it would take me some time to compare the two to answer that question. Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 86

87 Q: All right. That's fair. You would agree that the FMSI guide published in October 1978, the work practices guide, says, "Do not use an air hose for cleaning," and it has a picture to help illustrate that? A: Yes, I think so. Q: And the guide, in layman's terms, attempts to summarize the OSHA regulations regarding the proper dustcontrol methods and disposal methods for asbestos-containing dust; correct? A: Yes. Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 87

88 Q: And the guide itself says, "It is the employer's responsibility to assure that exposure of employees does not exceed the following permissible exposure levels," and then it gives the applicable OSHA permissible is exposure levels in existence at that time; correct? A: Yes. Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 88

89 Q: And in Mr. Odum's case, it would have been the responsibility of his employer to assure that the exposure of the employees, including Mr. Odum, did not exceed the applicable permissible exposure OSHA permissible exposure limits in 1978 or any other time when he was working around asbestoscontaining friction materials; correct? Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 89

90 A: Under the Occupational Safety and Health Act, it was the responsibility of the employer to do that, yes. There were maybe other legal obligations and responsibilities of other parties under other aspects of the law, but under the Occupational Safety and Health Act, the employer was charged with that responsibility. Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 90

91 Q: And the work practices guide that we've been referring to also counseled that vacuum or wet methods for cleaning be used in order to minimize dust, does it not? A: They talk about using vacuum cleaners to clean the work area and not to sweep. Q: That's good advice, is it not? A: Yes. Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 91

92 Q: And in fact if we go a little bit earlier in the brochure, the work practices guide, it looks like about the fourth page in, the page that's styled Introduction and then in the second paragraph it says "Asbestos and Friction Materials," it specifically states that breathing excessive quantities of asbestos fiber can cause respiratory disease and cancer, does it not? A: Yes. Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 92

93 Q: And you in the past have said that information should include a reference to cancer and not just respiratory disease or serious bodily harm, have you not? A: Yes. Q: And they do that in this brochure, do they not? A: They do. Testimony of Samuel P. Hammar, M.D. taken July 26, 2007, Franklin v. General Motors Corp., et al 93

94 Q: Can you identify, Dr. Castleman, the first report in the peer-reviewed medical and scientific literature that specifically identified a case of asbestosis in an auto mechanic, a brake mechanic, somebody who's working out in the field as opposed to somebody us; employed in a manufacturing friction facility? A: Well, putting aside the Swiss article in you showed me before, I suppose the first one would be Lorimer's article in Testimony of Barry Castleman, M.D. taken July 16, 2004, Allen v. Allied Signal, Inc., et al. 94

95 Examples of effective impeachment of Plaintiff s expert 95

96 Q I m going to ask you a hypothetical question. If you assume with me that there is a female exposed to Georgia- Pacific joint compound on several occasions, or sweeping up, occasionally, even cleaning up chunks of dry joint compound, and maybe some sanding we re not talking about a career drywaller and if this is the only exposure that this woman had; in your opinion, would that be sufficient to cause peritoneal mesothelioma? Testimony of Arnold Brody, M.D. taken August 12, 2011, Larson v. Bondex International, Inc., et al. 96

97 A I don t know why it could not. I mean, we re talking about asbestos fibers that would have to reach the mesothelial peritoneal mesothelial surfaces in a highly susceptible individual. You know, that s what it would take. Q Okay. Do you remember when you testified in the Vickie Warren trial? A Not specifically. Q Okay. It was in April of last year, actually here in Utah. A Okay. Testimony of Arnold Brody, M.D. taken August 12, 2011, Larson v. Bondex International, Inc., et al. 97

98 Q And you were asked the following question: It starts down here at the bottom of page 27: And I m trying to understand, if you re provided that information in a hypothetical, if you feel qualified to answer with respect to a specific causation. And then we proceed with the hypothetical. If you were given, in the hypothetical, exposure to Georgia- Pacific joint compound on several occasions, or sweeping occasionally and occasionally even cleaning up chunks of dried joint compound, and Testimony of Arnold Brody, M.D. taken August 12, 2011, Larson v. Bondex International, Inc., et al. 98

99 you know, maybe some sanding this is not a career drywaller. This is a person who did this with their family, cleaned up on occasion when she was a girl do you have an opinion as to whether or not that kind of exposure is sufficient to cause her peritoneal mesothelioma? And your answer: Well, I heard that a couple different times in places she was exposed, but certainly nothing concrete, and in my opinion is, if that is all the person was exposed to, I don t think that would cause peritoneal mesothelioma in a woman. I think it s harder to get than that. Testimony of Arnold Brody, M.D. taken August 12, 2011, Larson v. Bondex International, Inc., et al. 99

100 That s what you said in the Warren trial, is it not? A Right. Q And, similarly, you have testified in the past that, in your opinion, it would take months or years of asbestos exposure to a person to get peritoneal mesothelioma, correct? A Yes. Testimony of Arnold Brody, M.D. taken August 12, 2011, Larson v. Bondex International, Inc., et al. 100

101 Examples of effective deposition examination of Plaintiff s expert on specific Defendant causation 101

102 Q Let me ask you about -- ask you a few questions specifically about your report. Now, in your report -- and I've read it very carefully -- you outlined all of her exposures that you were aware of, in some detail, didn't you? A I tried to, yes. That was from her husband's depo. Q And in fact, your description of her alleged exposures take the substantial portion of your eight-page report, doesn't it? A It does, yes. Testimony of Samuel P. Hammar, M.D. taken July 26, 2007, Franklin v. General Motors Corp., et al 102

103 Q And I believe that on Page 3, the only thing that you mentioned about any potential exposure to Georgia-Pacific products is two sentences there about in the middle of the page. Correct? A Yes. Q Would it be fair to say that you considered the alleged exposure to Georgia-Pacific joint compound to be a very minor aspect of her overall exposure? A Based on that information, yes. Testimony of Samuel P. Hammar, M.D. taken July 26, 2007, Franklin v. General Motors Corp., et al 103

104 Q Yeah. Were you also aware from the -- from your reading of Mrs. Franklin and Mr. Franklin's deposition, that the maximum exposure to drywall joint compound was a total of five rooms? A Yes. Testimony of Samuel P. Hammar, M.D. taken July 26, 2007, Franklin v. General Motors Corp., et al 104

105 Q And would you agree that, generally speaking, the bystander exposure of a spouse is significantly less significant than the direct exposure by the person who was actually performing the work? A Yeah, I would agree with that. Testimony of Samuel P. Hammar, M.D. taken July 26, 2007, Franklin v. General Motors Corp., et al 105

106 Q And you also noted in reviewing those depositions, that the joint compound Mr. Franklin claimed that he used was a premixed joint compound, wasn't it? A That is correct, yes. Q So that would reduce the potential exposure even further in this case, wouldn't it? A Potentially, yes. Testimony of Samuel P. Hammar, M.D. taken July 26, 2007, Franklin v. General Motors Corp., et al 106

107 Q All right. And are you prepared to express an opinion in this case, based on reasonable medical probability, that Ms. Franklin's alleged bystander exposure to Georgia-Pacific joint compound caused or contributed to cause her mesothelioma? A Not in the information I have, no. I mean, if there was more information about exactly the situation, maybe that would be different, but not with the information I have. Testimony of Samuel P. Hammar, M.D. taken July 26, 2007, Franklin v. General Motors Corp., et al 107

108 Q So based on everything that you have been given by Ms. Franklin's attorney, including the depositions of Mrs. Franklin and her husband, you are not prepared to express an opinion that Georgia-Pacific joint compound caused or contributed to cause her mesothelioma? A That would be correct. Testimony of Samuel P. Hammar, M.D. taken July 26, 2007, Franklin v. General Motors Corp., et al 108

109 Examples of cross examination of Plaintiff s expert on what he failed to show the jury 109

110 Q You displayed to the jury a chart entitled "No Asbestosis Required Epidemiological Studies of Pleural Disease." Do you recall that? A Right Q And it states studies of pleural disease indicates increased risk of lung cancer, and there are four studies - - A Right Q - - on this page; am I correct? A That's right I also said that there were other negative studies. Testimony of David Egilman, M.D. taken December 12, 1995, Morse, et al v. AC & S, et al 110

111 Q Let s identify some of those, if you can. There s a cohort study by Sheers in the New York Academy of Sciences in 1979, is there not? A I don't recall, but I think so Q That's of shipyard workers? A Could be. I don t recall Testimony of David Egilman, M.D. taken December 12, 1995, Morse, et al v. AC & S, et al 111

112 Q And there's a study by Dr. Sanden in the International Archives of Occupational and Environmental Health that was negative, correct? A That s correct Q And that dealt with shipyard workers? A That's correct Q And that's not on the chart? A No Testimony of David Egilman, M.D. taken December 12, 1995, Morse, et al v. AC & S, et al 112

113 Q And there's a study by Sanden in 1991 in the Journal of Medicine? A That's correct Q That was negative, correct? A Yes Q And that s not on the chart? A Correct Testimony of David Egilman, M.D. taken December 12, 1995, Morse, et al v. AC & S, et al 113

114 Cross examination of expert to support chrysotile defense with expert s own research 114

115 Q And you published an article in 1989 on a factory that used chrysotile, did you not? A Yes. Testimony of Murray Finkelstein, M.D. taken February 1, 2012, Webber v. Ford Motor Co., et al. 115

116 Q And there were no peritoneal mesotheliomas reported by you in that study, that mortality study of the factory that used chrysotile, correct? A That's correct. Testimony of Murray Finkelstein, M.D. taken February 1, 2012, Webber v. Ford Motor Co., et al. 116

117 Q And this was a study that, in addition to using chrysotile, used crocidolite or blue asbestos, did it not? A Yes, it did. Q And you recorded various high rates of mesothelioma among causes of death, did you not? A Yes. Testimony of Murray Finkelstein, M.D. taken February 1, 2012, Webber v. Ford Motor Co., et al. 117

118 Q So in the factory that used the crocidolite that you studied in your job as a medical specialist for the Department of Labor, you found a very high rate of peritoneal mesotheliomas, in addition to pleural mesothelioma, correct? A Yes. Q Now, in addition to looking at a factory that used crocidolite, you studied a factory that used amosite, correct? A Yes. Testimony of Murray Finkelstein, M.D. taken February 1, 2012, Webber v. Ford Motor Co., et al. 118

119 Q So we've got three factories here, in Canada, that you studied, one used chrysotile, no peritoneal mesotheliomas, correct? A A small number of exposed workers, low exposure. Q One that used amosite, amphibole asbestos, where you found the only mesotheliomas were peritoneal, correct? A Yes. Q And then the factory that used crocidolite, you found lots of both pleural and peritoneal mesotheliomas, correct? A Yes. Testimony of Murray Finkelstein, M.D. taken February 1, 2012, Webber v. Ford Motor Co., et al. 119

120 Effective cross on inaccurate exposure history 120

121 Q And in this case you were only given this work history, correct? A Yes. Q And in discussing that work history with Mr. Hartley before you prepared did he point out to you there were some things in that work history that were, in fact, wrong? A No. Testimony of Murray Finkelstein, M.D. taken February 2, 2012, Webber, et al. v. Ford Motor Co., et al 121

122 Q All right. And in that work history it talks about him being a bus driver from 1972 to 1984 where he was around mechanics that were grinding and beveling brakes, correct? A Yes. Q And you still think that's part of the work history of the potential exposure that Mr. Webber's father had that he might have taken home, correct? A Yes. Q And did Mr. Hartley ever sit down and tell you that maybe that was wrong, that any work that he did as a bus driver was after Mr. Webber left the house? A No. Testimony of Murray Finkelstein, M.D. taken February 2, 2012, Webber, et al., v. Ford Motor Co., et al 122

123 Q Okay. Isn't that important, if you're going to be a scientist and come in and talk to a jury and talk to them about opinions to a reasonable medical certainty, to make sure that you have an accurate history of what the facts are in the case you're testifying in? A Well, I'm not sure. I work with what I'm given. Testimony of Murray Finkelstein, M.D. taken February 2, 2012, Webber, et al., v. Ford Motor Co., et al 123

124 Q But knowing that you had read Mr. Webber's deposition and you had the work history, weren't you able to determine that what Mr. Webber said under oath was different than what was in the work history? A No. Q You didn't think it was different or you just didn't notice the difference? A I skimmed through it and I don't know what the details were. Testimony of Murray Finkelstein, M.D. taken February 2, 2012, Webber, et al., v. Ford Motor Co., et al 124

125 Q Is that how you prepare reports in cases, you just skim through the material that you have, write a report, and then come in and tell juries that you think any exposure is causative of mesothelioma? Is that the way you work as a scientist? A Well, I think you're misstating things. This is not a scientific work, this is legal work. And what I do to prepare my report is I look at the information that is sent to me, I read it, I draw conclusions. The information that was sent to me was cut and paste from the information that I was provided and is included in my report. And we talked about it yesterday, that is the information on which I based my conclusions. Testimony of Murray Finkelstein, M.D. taken February 2, 2012, Webber, et al., v. Ford Motor Co., et al 125

126 Q So if I understand things correctly, you do not approach your medical/legal work with the same rigor and detail as you do your scientific work? A It's different. Testimony of Murray Finkelstein, M.D. taken February 2, 2012, Webber, et al., v. Ford Motor Co., et al 126

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