Dourson Testimony C8 Trial

Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 1 of 307 PAGEID #: 5002 Vol. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION CARLA MARIE BARTLETT and JON WILLIAM BARTLETT, ) ) ) PLAINTIFFS, ) ) vs. ) ) E. I. du PONT de NEMOURS AND COMPANY, ) ) DEFENDANT. ) ________________________________________) CASE NO. 2:13-cv-170 SEPTEMBER 30, 2015 8:30 A.M. 9 10 11 VOLUME NO. 12 TRANSCRIPT OF THE PROCEEDINGS OF THE JURY TRIAL BEFORE THE HONORABLE EDMUND A. SARGUS, JR. UNITED STATES DISTRICT CHIEF JUDGE COLUMBUS, OHIO 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR THE PLAINTIFF: Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A. By: James M. Papantonio, Esq. Ned McWilliams, Jr., Esq. Christopher Paulos, Esq. Timothy O'Brien, Esq. 316 South Baylen Street, Suite 316 Pensacola, Florida 32502 Douglas & London, PC By: Gary J. Douglas, Esq. Michael A. London, Esq. Rebecca Newman, Esq. Alicia P. Ellsayed, Esq. 59 Maiden Lane, 6th Floor New York, New York 10038 Taft Stettinius & Hollister By: Robert A. Bilott, Esq. David J. Butler, Esq. 1800 Firstar Tower 425 Walnut Street Cincinnati, OH 45202 1 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 2 of 307 PAGEID #: 5003 Vol. 12 1 2 3 Schlichter, Bogard & Denton, LLP By: Roger C. Denton, Esq. Ashley Brittain Landers, Esq. 100 South Fourth Street, Suite 900 St. Louis, Missouri 63102 4 5 6 The Cochran Firm By: David E. Haynes, Esq. 1100 New York Avenue, N.W. Suite 340, West Tower Washington, D.C. 20005 7 8 9 Cory Watson Attorneys By: Nina Towle, Esq. 2131 Magnolia Avenue South Birmingham, Alabama 35205 10 11 12 13 14 15 16 17 FOR THE DEFENDANT: Squire Patton Boggs LLP By: Damond R. Mace, Esq. C. Craig Woods, Esq. Stephanie E. Niehaus, Esq. Stephen Fazio, Esq. Aaron T. Brogdon, Esq. 4900 Key Tower 127 Public Square Cleveland, Ohio 44114 - - - 18 19 Proceedings recorded by mechanical stenography, transcript produced by computer. 20 21 22 23 24 25 LAURA SAMUELS FEDERAL OFFICIAL COURT REPORTER 85 MARCONI BOULEVARD, ROOM 302 COLUMBUS, OHIO 43215 TELEPHONE NUMBER: 614-719-3245 2 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 3 of 307 PAGEID #: 5004 1 Vol. 12 3 WEDNESDAY MORNING SESSION 2 SEPTEMBER 30, 2015 3 - - - 4 Thereupon, the following proceeding was held in 5 chambers: 6 THE COURT: 7 MR. O'BRIEN: 8 THE COURT: 9 MR. O'BRIEN: So, we have three depositions to review? Yes, Your Honor. Or four to be exact. As I had indicated -- I'm sorry -- I had 10 an opportunity to review the Flarhety recast. 11 ripe with opinion and hearsay. 12 about the precision and accuracy of the testing and then what 13 did DuPont tell you they wanted, and that's hearsay. 14 still maintain our objection, Your Honor, as to the entirety of 15 the Flarhety deposition. 16 MS. NIEHAUS: Hudson is still There is still a lot of stuff So, we Your Honor, I mean, we did what we were 17 instructed to do. 18 is limited to background for what he did and what he -- We pared it back; it is now 12 minutes. 19 THE COURT: 20 for what you are proposing? 21 but I don't know the selected parts. Do you have something that I could follow I have read the whole deposition, 22 LAW CLERK: I gave it to you yesterday. 23 THE COURT: Oh, all right, then maybe I do have it. 24 don't have it handy if I do. 25 MS. NIEHAUS: It What I do have is -- I Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 4 of 307 PAGEID #: 5005 1 2 Vol. 12 4 Just give me -- I am looking for a flavor, THE COURT: to be honest with you. 3 MS. NIEHAUS: 4 what we have agreed to remove. 5 THE COURT: 6 MR. MACE: 7 THE COURT: Yes. This is anything that's in gray is All right. So, what's left? Non-gray is what we have narrowed it to. So, we have got the hearsay issue again. 8 I am looking at Page 128 and 129. 9 type of work they have done in the past, quality assurance, 10 11 12 matrix effects. MS. NIEHAUS: THE COURT: 14 MS. NIEHAUS: 16 17 18 Well, that's how he did the testing for DuPont -- 13 15 You start talking about the Right. -- and that's the method of testing that was used. THE COURT: So, beyond the hearsay issue, what do you see as the problem here? MR. O'BRIEN: Comments about precision and accuracy of 19 the testing, which are opinions. 20 inches by six inches, which would be a fact. 21 of analysis, was it precise and was it accurate. 22 23 24 25 THE COURT: Okay. It is not like -- is it four It is the subject So, we have got that issue. Then, the hearsay issue, how do you respond to that? MS. NIEHAUS: accuracy issue? The hearsay issue or the precision and Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 5 of 307 PAGEID #: 5006 1 2 Vol. 12 I think I understand the precision and THE COURT: accuracy. 3 MS. NIEHAUS: Okay. Well, I mean, what DuPont told 4 him and what he understood DuPont to have told him to do is 5 very relevant to -- I mean, the issue of whether DuPont was 6 intentionally falsifying its results. 7 THE COURT: I mean, usually the hearsay is relevant, 8 that's a given, but I mean, what he did is not hearsay, but 9 what they told him, that's what I want to focus on. 10 11 MS. NIEHAUS: Well, I mean -- so, you are looking at 128, I think, Your Honor? 12 THE COURT: Yeah, that's probably where it starts. 13 have a received call from Mary Kaizer. 14 hearsay, but then it goes on to say "she said". 15 the hearsay. 16 I mean, did she come on a visit? 17 Did you have a conversation? 18 said is. 19 the other issue right now. 20 MR. MACE: We can purge That's not hearsay. That's not hearsay. What she So, let's take the hearsay out, and let's go back to And on that, Your Honor, it is not so much an opinion that he is giving, he is talking about the QA, QC 22 process he used to try to insure a good result. 23 factual of what he did. 25 I Yeah, that part is not 21 24 5 THE COURT: It is the It is his personal observation. The issue is not whether he could testify -- he could -- but it is the designation that we are Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 6 of 307 PAGEID #: 5007 1 talking about. 2 Vol. 12 So, he is talking about normal practice. And, of course, the accuracy is the only reason for his 3 testimony, right? 4 really not a whole lot of relevance, is there? 5 So, if we exclude that, I mean, there is MS. NIEHAUS: Well, it is his belief as to the 6 accuracy of the testing and his belief as to what DuPont wanted 7 him to do. 8 opposition, Your Honor, where the fact consultant was permitted 9 to testify about his own measurements of the trailer. I mean, it is the case that we cited in our I don't 10 know if you recall the case that we cited in our opposition to 11 motion in limine Number 5 -- I don't remember the name of it 12 off the top of my head -- 13 THE COURT: 14 MS. NIEHAUS: You don't? Gerling, maybe? But don't hold me to 15 that. 16 about his own measurements, whether they complied with 17 standards. But, you know, the consultant was permitted to testify 18 MR. O'BRIEN: Yeah, but that's facts. 19 MS. NIEHAUS: That's fact testimony. 20 THE COURT: I can see this a couple of different ways. 21 I mean, it would have been so much easier, I think, to depose 22 him as an expert, and this whole thing would disappear. 23 24 25 MS. NIEHAUS: We don't see him as a expert, Your Honor. THE COURT: So, we need a decision. So, go ahead. 6 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 7 of 307 PAGEID #: 5008 Vol. 12 1 You get the last word. 2 MR. BILOTT: Our concern, Your Honor, if you look at 3 the language that was used by Mr. Flarhety, it is clear that 4 they were intending to track the language from the expert 5 report on the plaintiff's side about precision, accuracy, 6 representativeness, sensitivity -- those are all -- anything 7 dealing with those kinds of assessments is pure expert opinion, 8 and they have an expert, Dr. Snyder. 9 MR. MACE: We removed all of that though, Your Honor. 10 And the part where he went through each of those terms and what 11 they meant -- even though I would say that that is still 12 factual testimony, we removed all of that. 13 14 15 THE COURT: I think I have gotten this in terms of what your positions are, but give me a second here. (Judge is marking the deposition.) 16 THE COURT: All right. So, I am taking out the 17 hearsay and, you know, generally describing -- a test taken is 18 not by itself expert testimony, but he bleeds into that a 19 couple of places here when he is describing what's coming out. 20 Quantifiable, that's an opinion. 21 But in terms of what DuPont wanted from him, that will 22 stay in. 23 results, basically, and he says emphatically no. 24 some issue in the case. 25 expert stuff as I can. In terms of, you know, was he asked to throw the That has been So, I kind of skimmed back as much 7 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 8 of 307 PAGEID #: 5009 1 MR. O'BRIEN: Vol. 12 Your Honor, so that was their 2 designations. 3 I would request some guidance on because, obviously, we are 4 going to recast our counter designations in light of the 5 Court's ruling, if it is not responsive or if it was responsive 6 to what has been excluded. 7 We, of course, have counter designations, which One of the major objections that defendant has presented 8 to our counter designations is a lack of a chain of custody. 9 And that's a fact. So, I would just request guidance that the 10 failure to have a chain of custody of the samples can be 11 permitted to be displayed to the jury or shown to the jury. 12 13 14 THE COURT: In other words, you are questioning about documents that show what his samples were? MR. O'BRIEN: Right, the samples he received because 15 he is purporting to say these were samples from "X", and he has 16 no chain of custody to prove that's true. 17 THE COURT: 18 MR. O'BRIEN: And you have objected to that? No. We presented the chain of custody 19 just to impeach his testimony that -- that this is what it 20 purports to be, samples from -- 21 22 THE COURT: Well, can I see it? I just don't want to decide it in the abstract. 23 MS. NIEHAUS: 24 THE COURT: 25 MS. NIEHAUS: Your Honor, so here is the testimony. Well, I mean, I need to digest this, too. That's fine. 8 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 9 of 307 PAGEID #: 5010 1 2 Vol. 12 Do you have a clean copy of what your THE COURT: counter designations are and what your objections are? 3 MR. O'BRIEN: Your Honor, we can get that to you, but 4 I have the combined one. 5 I can give you our PC. 6 MS. NIEHAUS: I have theirs combined with mine, but This will include some of what you just 7 struck, but this is what we had originally exchanged with 8 plaintiff, counter designations in blue here. 9 10 9 MR. MACE: I think what Mr. O'Brien is suggesting is he will truncate that to just what he is offering. 11 MS. NIEHAUS: 12 to their counter designations. 13 I mean what is left of Mr. Flarhety's designations, I don't 14 believe there is any indication of where the samples came from, 15 just that he was sampling. 16 said it came from here, and it actually didn't -- there is no 17 direct testimony about that anyway. 18 THE COURT: Okay. And they would be our objections And the chain of custody piece, So, the chain of custody issue, he Again, you have seen it, and I haven't. 19 need to look at it so that I have an idea what the issue is, 20 okay? 21 22 23 I Then, we have -- I want to get into both Graham and Sykes. And let me just start by saying -- I guess there is -- I 24 guess we could call it post stipulations. 25 these instructions on both the livestock and birth defects, but I have been giving Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 10 of 307 PAGEID #: 5011 Vol. 12 I don't mean to 1 that doesn't mean the issue is agreed upon. 2 imply that, particularly when it comes to DuPont's conduct. 3 But the issue with both of these is whether they are opinions 4 or not, right? 5 MS. NIEHAUS: 6 THE COURT: Well, they are experts. They are experts. But I thought one of 7 the complaints is that they weren't designated as experts in 8 this case? 9 MR. PAPONTONIO: No, it was that the deposition 10 testimony was not designated in time in compliance with the 11 Court's CM 09. That was the issue. 12 The second issue is they are available. 13 32, they haven't shown a lack of availability. 14 proper for a retained expert that they have control of to play 15 the discovery deposition of that expert. 16 that, particularly, in light of the fact that there was no 17 deposition designation for these. 18 10 And so under FR So, it is not And we relied upon The other objection -- group objections is, what is the 19 relevance of this? 20 the limiting instruction that the Court has already given on 21 both of these issues, that is the birth defect and the cattle? 22 So, you know, for all of these reasons, Your Honor, we think 23 that if a witness is going to offer this opinion, it ought to 24 be live so that a foundation can be laid as to the relevance of 25 the testimony. In other words, is it to prove the truth of Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 11 of 307 PAGEID #: 5012 1 Vol. 12 Well, the jury has heard some testimony THE COURT: 11 2 about both of these topics, so the fact is -- and we don't have 3 quite a stipulation. 4 you. 5 cumulative, I won't decide it on that basis that you can't 6 offer this. We are close to it. That doesn't bar As long as the evidence is competitive and not 7 MR. MACE: 8 THE COURT: 9 MR. MACE: 10 THE COURT: But the issue about live, why can't they MR. MACE: Well, it is because -- Your Honor, we had 11 12 If I can summarize on his three points -Let me finish. Okay. be here? 13 moved to try to keep these issues out completely. 14 has come up with a ruling that basically has given some 15 limiting instructions but left open for the plaintiffs to put 16 in evidence on DuPont's response, what was DuPont's response to 17 this in evaluating DuPont's conduct. 18 narrow -- these experts were initially designed to cover the 19 whole waterfront. 20 designating to just on the issue of the response. 21 Your Honor So, it is a very, very What we have done is truncated what we are But, Your Honor, has discretion under Rule 32 -- I think 22 it is (b) -- 2(e) something -- to allow this under appropriate 23 circumstances. 24 because of the somewhat unique situation that we are in. 25 main part of the expert's opinion has now been resolved by the We think these are appropriate circumstances The Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 12 of 307 PAGEID #: 5013 1 Vol. 12 12 limiting instruction, but since we have allowed the plaintiffs 2 to get into DuPont's response -- so, each of these experts talk 3 about what DuPont's response was. 4 designations down to I think -- 5 THE COURT: We tried to narrow the My recollection with regards to the 6 birthing issue, I think that's been made very clear to the 7 jury, nobody has claimed that. 8 discussion about the cattle. 9 to is -- 10 MR. PAPONTONIO: 11 MR. MACE: 12 MR. PAPONTONIO: 13 agree. 32, you said? I seem to remember, Your Honor. 15 the deposition of a witness. Okay. The party may use for any purpose Are you talking about availability of a witness or by an expert? 18 MR. PAPONTONIO: That's the problem here, Judge. 19 These are expert witnesses. 20 MR. MACE: 21 22 I It is a discretionary issue. THE COURT: 17 The ruling you are referring me 32(b). 14 16 We have had a lot more It is (e)(1) here (pointing). I'm sorry, Mike. THE COURT: Okay. So, unavailable witness on motion 23 and notice of exceptional circumstances make it desirable in 24 the interests of justice and with due regard in the importance 25 of live testimony in open court to permit the deposition. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 13 of 307 PAGEID #: 5014 Vol. 12 1 That's what you are asking to do? 2 MR. MACE: 3 THE COURT: 4 5 6 Yes, Your Honor. And to even consider that, I have to know why they can't be here. MR. MACE: That's because they have these surgical schedules and things, and they are many states away. 7 THE COURT: 8 MR. MACE: One is a veterinarian, yes, sir. 9 THE COURT: And the other one is retired? 10 11 But one is a veterinarian, right? MS. NIEHAUS: He is semi-retired. He still has clinic twice a week. 12 THE COURT: 13 MS. NIEHAUS: 14 THE COURT: 15 MR. MACE: 16 In West Virginia? No, no. He is in California. And the veterinarian is in? The East Coast -- I am not sure if it is Delaware. 17 MS. NIEHAUS: 18 MR. PAPONTONIO: I don't know where he is. If I could respond? It is the same 19 problems we run into, it is getting people here. 20 exceptional circumstances here. 21 As a matter of fact, the approach to this case has been to try 22 to -- and again, it is just lawyering, I am not taking 23 exception to it -- but to try the case without the experts 24 showing up, without cross-examining, is just not fair. 25 13 THE COURT: There is no There really is none at all. But I mean, I am just reading this. This Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 14 of 307 PAGEID #: 5015 Vol. 12 14 One is just beyond 100 miles within the 1 is a rule, five parts. 2 subpoena power of the Court. 3 MR. PAPONTONIO: 4 MR. O'BRIEN: But you are not relying on that? No, sir. But, I mean, that's true. But they have control of the witness. 5 That's for someone you don't have control of. 6 control, they pay them tens of thousands of dollars. 7 MS. NIEHAUS: They have It goes back to what we talked about 8 with Flarhety, though, the issue of unavailability outside 100 9 miles. It is not whether we have made any effort to bring them 10 here, extraordinary effort to bring them here, it is whether we 11 have actively prevented them from being here. 12 THE COURT: What makes this hard is these are two 13 issues that I think of as extremely collateral to the matter. 14 You know, we have these limiting instructions that tried to 15 keep them fenced out. 16 testimony should be relatively short, in all honesty, but on 17 the other hand, there has to be due process here. 18 task you to find out if they can be here. 19 question first. 20 any event, even with the depositions. MR. MACE: 22 THE COURT: 24 25 that. I think their I want to Let's answer that I am assuming they are not coming on today, in 21 23 It didn't do it entirely. All right. No, sir. All right. That's the best we can do with That's all that I have. MR. BILOTT: Anything else? Your Honor, there was one issue. I know we raised it yesterday with the sidebars with Dr. Playtis Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 15 of 307 PAGEID #: 5016 1 Vol. 12 15 yesterday, and that's this line between fact witness testimony 2 and expert testimony. 3 today, we just want to make clear what our concerns are with 4 two of the witnesses, the first two witnesses today, Dr. 5 Dourson and Mr. Hartten. 6 THE COURT: 7 MR. BILOTT: And to try to avoid a lot of sidebars And with Dr. Dourson -- These are not disclosed as experts? Correct. And just so the Court is aware, 8 Dr. Dourson was the toxicologist from TERA, which we have heard 9 a lot about who worked on the CATT team report. Dr. Dourson 10 was previously disclosed by DuPont in the original Leach case 11 as an expert who was going to come in and talk about the CATT 12 team report, how it was designed, how it was developed, the 13 reasonableness of the number, etc. 14 has not been disclosed as an expert. 15 In this case, Dr. Dourson And our concern is, we have seen the CATT team report a 16 number of times. 17 Kennedy and could have brought Mr. Kennedy in as a toxicologist 18 to talk about how this was derived, whether it is reasonable, 19 whether the number was adequate, what was known at the time, 20 etc. 21 are bringing Dr. Dourson, but again, only as a fact witness. DuPont had a toxicologist on that team, Dr. They have chosen not to bring Dr. Kennedy. 22 THE COURT: 23 MR. BILOTT: 24 THE COURT: 25 Instead, they And his medical background is? He is a toxicologist. So, he is an undisclosed expert, but you are going to bring him on as a fact witness? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 16 of 307 PAGEID #: 5017 1 MR. BILOTT: Vol. 12 Yeah, and our concern, Your Honor, we 16 2 want to make sure he is not discussing the adequacy of that 3 CATT team number, how it was derived, whether it was reasonable 4 or not, whether it represents what was known at the time. 5 Those are all expert opinions. 6 THE COURT: 7 MR. MACE: 8 examination for Dr. Dourson. 9 allegations that were made by the plaintiffs' experts that Let's hear from them. Yes, Your Honor. I am planning a narrow And it is really to rebut these 10 these CATT teams was a bunch of individuals who weren't 11 qualified, had conflicts of interest. 12 13 14 THE COURT: He will come on and give a different view of the process? MR. MACE: Right. His observations from being 15 personally involved, how he got involved, the different people 16 involved. 17 THE COURT: So, none of that is expert testimony at 18 that point? 19 numbers arrived and standards set and so on? So, you are not planning on opinions about the 20 MR. MACE: 21 MR. BILOTT: No, sir. We didn't want the CATT team put up as an 22 expert report of Dr. Dourson and him walking through it and 23 telling the jury this is how we did it and this is why it was 24 reasonable. 25 Your Honor. So, that would be expert testimony, in our view, Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 17 of 307 PAGEID #: 5018 1 THE COURT: 2 any way off limits. 3 MR. MACE: Vol. 12 17 Well, the process does not seem to be in And I have been trying to notify counsel 4 the night before, but last night turned into this morning. 5 the only exhibits I am planning to use -- I am not sure who is 6 covering him on your side -- is his CV. 7 CATT report and signature pages from the CATT report. 8 THE COURT: 9 you want them to all go back? 10 So, I was going to use the On the CVs, we have an understanding that I have done it both ways. It is all or nothing. 11 MR. MACE: 12 MR. PAPONTONIO: 13 THE COURT: I want them all to go back. No, no, Judge. It is all hearsay. Some of these CVs in these cases go for 14 100 pages and rather than have someone read through it all, 15 they can stipulate. 16 It is not going to be selective. 17 MR. PAPONTONIO: 18 MR. MACE: 19 THE COURT: But they all go back or to none go back. Judge, we prefer they not go back. And we prefer they all go back. Well, you haven't put an expert on yet. 20 Your feeling is your direct was sufficient and you don't 21 want -- you know, the problem is you are going to end up having 22 Mr. Mace spending a lot of time on the CV. 23 MR. BILOTT: Well, Your Honor, when plaintiff went 24 through the expert qualification, I think it was done in a 25 pretty efficient way. It can be done fairly briefly. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 18 of 307 PAGEID #: 5019 1 Vol. 12 18 Well, I just want to say to you, if it not THE COURT: 2 going in, you decide how much you want to use on the 3 credentials. 4 if we are not sending the CV back, I will give it more leeway. 5 6 Normally, I would say don't use a whole lot, but MR. BILOTT: experts. 7 THE COURT: 8 MR. MACE: 9 10 But, again, Dr. Dourson is not one of the Yeah, that's right. But his CV was relevant in that the allegation was made that these people were basically industry shells and they didn't know they were doing. 11 THE COURT: I understand. But his CV would not go 12 back for sure in this case if he is not an expert, but 13 certainly, he can testify to it. 14 MR. MACE: All right. The only other thing that is 15 not one of the marked exhibits, and I am only using it as a 16 demonstrative is their funding list that is off of their 17 website. 18 MR. O'BRIEN: 19 MR. MACE: 20 MR. O'BRIEN: 21 MR. MACE: 22 MR. O'BRIEN: 23 24 25 One in 2001? 2002. 53 percent of the industry? You picked out that number. I am sure we will hear the other number, too. MR. PAPONTONIO: Judge, I wanted to get something on the record because we are guests in your court. And it Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 19 of 307 PAGEID #: 5020 Vol. 12 19 We, I think 1 bothered me yesterday when I left the courtroom. 2 on behalf of all of us, have tried to cooperate, do everything, 3 provide documents, give notice when a slide is going to go up. 4 Yesterday, I put that slide up totally by mistake. 5 because we have a lot of cooks in the kitchen. 6 want the Court to think that there was any intent there. 7 are going to be working together a long time, and I don't 8 operate like that. 9 THE COURT: 10 It is And I didn't We No, I didn't take it that way. MR. PAPONTONIO: I also -- the thing with the three 11 cancers, what I was trying to say, I was trying to go back to 12 the doctor's testimony, that he talked about the different 13 types of kidney cancer. 14 15 16 And the third thing I can assure you I did not mean to call Mr. Brogdon "Mr. Brodhead". I didn't want to leave the courtroom -- these things 17 bothered me anyway because I think we have done a pretty good 18 job of everybody getting along. 19 critical. 20 I wanted to clear the air. THE COURT: I think that reviewing these before we go 21 in, too. 22 mistake on what is displayed. 23 And I think credibility is There are so many documents. MR. MACE: I can see making a And I didn't mean to get riled yesterday, 24 Judge, and I didn't mean there was any intent behind that, but 25 it is just this has been a hard-fought battle. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 20 of 307 PAGEID #: 5021 Vol. 12 1 THE COURT: 2 MR. MACE: 3 MR. BILOTT: I noticed. And we have things we have agreed to. Your Honor, we have talked about Dr. 4 Dourson. 5 with Mr. Hartten, it is a similar issue that we had with Dr. 6 Flarhety. 7 has overseen a lot of the activity with DuPont, going out and 8 taking water samples. 9 indicated, he can talk about what he did, what he collected. Just again, to try to avoid a bunch of sidebars today Hartten has done a lot of water sampling for DuPont, And, again, as you have already 10 But he was previously disclosed by DuPont in other cases as an 11 expert on these methods. 12 crossing that line. 13 Hartten. 14 MR. MACE: We just don't want him, again, So, that's our only concern with Mr. Your Honor, to clean up issues that neither 15 one should take too much time. 16 the witnesses today, Dr. Cohen. 17 testimony in the State legislature in Nebraska and in Congress 18 about fetal tissue issues. 19 issue to the jury and has no bearing on any issues in this 20 case. 21 one of the plaintiff's experts, we would ask that plaintiff be 22 prohibited from inquiring about his testimony on fetal tissue. 23 24 25 20 One is with regard to one of So, he has given some This would be a highly sensitive But similar to the Court's exclusion of gun control for THE COURT: It doesn't tie into this case at all, does it? MR. MACE: No. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 21 of 307 PAGEID #: 5022 Vol. 12 1 MR. PAPONTONIO: 2 MR. BILOTT: 3 MR. MACE: Gary needs to know that. Okay. And the fourth thing, Your Honor, I know we 4 have been throwing an awful lot at the jury and you and 5 everybody else involved. 6 21 But let me give one to counsel. When we were asking for instructions, and there was 7 quite a bit of process between the parties and the Court to 8 come up with what you were going to tell the jury about the 9 general causation stipulation. We have gone back and looked at 10 the record the numerous times it has been described to the 11 jury, and I know it is under the heat of fire, but it has 12 gotten looser and looser as time has gone on in this trial, but 13 two of the things that were critical for us, that Your Honor 14 had agreed to, is that we would tell them the year, that these 15 findings were made in 2012 because timing is important, in 16 evaluating the conduct of DuPont, and number two, capable of 17 causing -- 18 THE COURT: 19 about it again. 20 again. 21 22 23 24 25 Well, let them read it. We will talk We will talk before I give the instruction MR. BILOTT: Is DuPont proposing a different limiting instruction than what was agreed to? MR. MACE: No, we just want the one read the way it was agreed to. (End of chambers discussion.) Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 22 of 307 PAGEID #: 5023 Vol. 12 1 - - - 2 Thereupon, the following proceedings were held in open 3 court with jurors present at 9:04 a.m. 4 THE COURT: Good morning, ladies and gentlemen. 5 Welcome back. I'm sorry to report that Mr. Quisumbing is sick 6 this morning. I want to thank Ms. Sherry Nichols for filling 7 in for him. 8 She's normally with Magistrate Judge Deavers. With that, DuPont may call its next witness. 9 MR. MACE: Thank you, Your Honor. 10 Dr. Michael Dourson. 11 (Witness sworn.) 12 13 THE COURT: Mr. Mace, whenever you're ready, you may proceed. 14 MR. MACE: Thank you, sir. 15 - - - 16 MICHAEL DOURSON, PH.D. 17 18 The defense calls Called as a witness on behalf of the Defendants, being first duly sworn, testified as follows: 19 DIRECT EXAMINATION 20 BY MR. MACE: 21 Q. Good morning, Doctor. 22 A. Top of the day to you. 23 Q. Could you state your name, please? 24 A. Michael Leonard Dourson. 25 Q. Where do you currently work? 22 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 23 of 307 PAGEID #: 5024 1 A. Vol. 12 University of Cincinnati College of Medicine. 2 Q. What do you do there? 3 A. I'm a research professor in environmental health. 4 we do risk assessment, risk research and then risk 5 communication to the public. 6 7 8 9 Q. 23 And Could you please take us through your educational degrees. A. I got my bachelor's of biology at University of Wittenberg in Springfield, Ohio. Then I went down to the 10 University of Cincinnati and got a doctorate in toxicology from 11 the College of Medicine, the place I now have returned to work. 12 I also along the way got certified in toxicology, American 13 Board of Toxicology certification. 14 training with the U.S. government. 15 16 MR. MACE: And I've had some executive May I approach the deputy clerk, Your Honor? 17 THE COURT: You may. 18 BY MR. MACE: 19 Q. 20 D2455. 21 A. Yes, I do. 22 Q. What is it? 23 A. That's my resumé. 24 Q. If we could bring that up, please. 25 Doctor, we've handed you what's been marked as Exhibit Do you recognize that? Will you bring up, please, from the top down through the employment? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 24 of 307 PAGEID #: 5025 Vol. 12 Doctor, there's some letters after your name. What's 1 2 the Ph.D.? 3 A. That's doctor of philosophy in toxicology. 4 Q. The DABT? 5 A. Diplomate of the American Board of Toxicology. 6 24 That's one of the certifying bodies. 7 Q. ATS? 8 A. The Academy of Toxicological Science, another certifying 9 body. 10 Q. Could you take us through, let's start at the bottom on 11 your employment and take us through your employment history 12 briefly. 13 14 15 16 17 18 A. Sure. Briefly. MR. DOUGLAS: want some clarification if we could have a quick side-bar. THE COURT: 21 You may stand if you wish, ladies and gentlemen. I'll see you at side-bar. - - - 19 20 Your Honor, I hate to interrupt but I Thereupon, the following proceeding was held at side-bar: THE COURT: 22 up we just discussed. 23 MR. DOUGLAS: I think the matter you're going to bring I apologize for not being there. But I 24 just want to be sure but since it's not going to go to the jury 25 whether it's proper to display it on the screen at all. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 25 of 307 PAGEID #: 5026 1 2 Vol. 12 I don't remember what we did with your THE COURT: witnesses. Did we do that? 3 MR. DOUGLAS: 4 MR. MACE: 5 I didn't use any resumés. I would still argue it goes back but, regardless, I should be able to use it as a demonstrative. 6 THE COURT: It's not going to be an exhibit. 7 an agreement it won't be an exhibit. 8 back. 9 to this anyway. Without I prefer they all go We can still do that if you wish. He's going to testify 10 - - - 11 Thereupon, the following proceedings were had in open 12 court: 13 BY MR. MACE: 14 Q. If you could continue with your employment history. 15 A. I got my Ph.D. from University of Cincinnati in 1980. 16 Then went across the street and worked for the Environmental 17 Protection Agency as a staff-level toxicologist; worked in EPA 18 for 15 years at various positions, as you can see. 19 time in Washington, D.C. 20 21 22 25 Q. Let me just ask a few specifics. Did some So the acceptable daily intake group, what did that entail? A. Well, back in 1984 we had the National Academy of 23 Science came up with a new way of managing risk assessment in 24 the federal government. 25 took that to heart and one of the things they did is they put There was a lot of confusion. USEPA Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 26 of 307 PAGEID #: 5027 1 Vol. 12 together an acceptable daily intake group within our unit to 26 2 summarize risk values of ADIs that we had already done and that 3 group interacted with other EPA groups that were doing similar 4 work. 5 particular idea, ADI, acceptable intake of the chemical in 6 mind. 7 Q. 8 entail? 9 A. That led to some interagency work groups with this You have methods evaluation development. What did that Part of the National Academy of Sciences' work had to do 10 with new ways to assess risk and so commonly what we've done is 11 we don't experiment on people, we experiment on animals and try 12 to judge the safe level of a chemical from the animal exposure. 13 And the animals, of course, are treated ethically. 14 being is we do this for all chemicals because all chemicals are 15 toxic. 16 this better. 17 Q. 18 times. 19 A. The point There's always new methods and new approaches to do That's what our group is charged with doing. You mentioned the National Academy of Sciences a couple What is that group? Well, it's a -- the National Academy of Sciences is a 20 nonprofit group that does a lot of work for the federal 21 government but it's high level -- they're scientists from all 22 walks of life but they're the A team, the top of the line, 23 usually, and they will do different tasks. 24 to develop this idea of risk assessment in the federal 25 government managing the process. So one of them was That was one of their tasks Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 27 of 307 PAGEID #: 5028 Vol. 12 1 2 3 4 to do that. Q. Then you went to methods evaluation and development. What was that? A. We talked about the developing methods a little bit 5 already. 6 spent a year there in the pesticides and toxics team. But after that was, I went to Washington, D.C. and 7 Q. What did that involve? 8 A. What that involved was I was part of research and 9 27 development. EPA is a large organization, and research and 10 development has a lot of aspects to it. 11 coordinating functions that I served as a chief of this team is 12 to talk to our counterparts in EPA's office at Pesticides and 13 Toxic Substances and take the research that folks were doing in 14 that part of EPA and translate it over to the needs of the 15 folks that were evaluating pesticides and chemicals, toxic 16 chemicals like in your window spray. 17 that? 18 the two EPA groups. 19 20 21 Q. What's a safe level of And so we would -- I was doing the translation between Let's go up to this one, the systemic toxicants assessment branch. A. One of the What did that group? After I did my gig in Washington, D.C. I returned to my 22 home office in Cincinnati, Ohio and that particular group was 23 charged with doing assessments for safe levels of chemical in 24 water. 25 and we had a variety of tasks that worked for primarily EPA's We also did Superfund site risk assessment work there Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 28 of 307 PAGEID #: 5029 1 Vol. 12 program offices, the Office of Water and the Office of Solid 2 Waste and Superfund. 3 4 Q. 28 Then you've got toxicology excellence for risk assessment. What's that group? How did it get started? 5 A. 6 EPA. 7 years in the federal government, learned a lot but was looking 8 for something perhaps different so I took the buyout, which was 9 pretty meager in retrospect, and ended up starting a nonprofit Okay. So, mid-level managers are being bought out by Bill Clinton was offering these buyouts. 10 organization. 11 $25 at the time. 12 exclusion. 13 we've been doing work with various parties. 14 I had been 15 To get an Ohio nonprofit is quite easy. It's But then we had to get a 501(c)3 tax We ended up getting that. For the last 20 years About two-thirds of our work is government and other 15 nonprofits, and about one-third is industry or industry 16 nonprofits. 17 parties. And what we do is we build collaborations between We've got a lot of examples of that. 18 Q. What's the mission of that group? 19 A. It's to provide information to protect the public 20 health. 21 Q. 22 23 24 25 And now you said you're over at the University of Cincinnati? A. Yeah. professor. Q. I've been there for two months as a research I'm still learning what that means. All right. If we could go lower on the page. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 29 of 307 PAGEID #: 5030 Vol. 12 In terms of teaching, have you lectured in graduate 1 2 level? 3 A. Yeah. 29 I've actually done -- since we're close to the 4 University of Cincinnati and the College of Medicine, and since 5 I'm an alumni, they've invited me to give lectures every year, 6 nearly, since I've been out. 7 couple years. 8 and lecture on a routine basis. 9 high school students. 10 11 Q. Well, probably not the first But after I started with TERA I would go over I've given some lectures to That's a challenge. Sir, your CV is 30 pages. I admire teachers. I'm not going to go through all of it. 12 A. Thank you. 13 Q. We're trying to make some progress here. 14 could look over at page 13. 15 risk assessment publications. 16 and peer-review literature on that? 17 18 19 20 21 A. Yeah. after 100. Q. But if we You have a section on research Have you done quite a few papers It's probably near 150. I lost count of them So I just put in what I think is important. You have a section over on page 28 about awards. Have you received a number of awards regarding risk assessment? A. Right. And a number those awards are team efforts. So 22 I think the very first one it was a team effort. 23 different groups that we worked with that do that particular 24 website for kids chemical safety. 25 Cincinnati Poison Control Center, our group, Harvard Center for We had four The groups are the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 30 of 307 PAGEID #: 5031 1 Vol. 12 30 Risk Analysis and NSF International which is a nonprofit in Ann 2 Arbor that certifies chemicals that touch water. 3 your refrigerator door you'll see NSF certification for the ice 4 maker. 5 this website together. 6 7 Q. And we've got together and put I wanted to ask about a particular one over on the next page, page 29. 8 9 So that's what they do. In 2002. Could we bring that one up? Environmental Stewardship Award. A. If you open What was that? That was the work that we did with other group -- other 10 folks on the team to look at the C-8, the CATT team, the 11 assessment team. 12 and Andy Maier got this award. 13 was also unexpected. After we did the report, afterwards, myself It was quite gratifying. It 14 Q. Do you have a copy of the certificate with you? 15 A. Yeah. 16 Q. And that was from whom? 17 A. That was from the State of West Virginia. 18 Q. Now, with regard to your work at EPA did you have any -- 19 Actually I brought that. first of all, are you familiar with the term IRIS? 20 A. IRIS, yeah. 21 Q. What does it stand for and what is it? 22 A. The Integrated Risk Information System. Very much so. It's a system 23 designed by EPA staff. 24 developed it but there was teams of people that review the ADIs 25 at the time and now they're called reference doses, but made I had the lead of the group that Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 31 of 307 PAGEID #: 5032 Vol. 12 31 Once we all agreed, 1 sure that everybody in EPA agreed to it. 2 unanimous consensus, then we put it on the Integrated Risk 3 Information System. 4 Q. How were you involved with it? 5 A. Two ways. My team was -- I was staff lead of the method 6 evaluation and development staff, we were the group that put 7 out the actual IRIS. 8 e-mail and it was very archaic. 9 couldn't go backwards. And the first time we did it was on You can only scroll down. You It was designed only for EPA staff 10 because we found out that our ADIs was not the same between 11 groups. 12 chemicals where we actually did the same evaluation and 39 of 13 the 40 were different. 14 it together and tried to harmonize it. 15 behind the IRIS thing. 16 It was actually pretty embarrassing. We had 40 That was pretty embarrassing. We got That was the principle Part of my effort was to lead the team, to build it, 17 build the database. 18 chaired a group that actually did the certification of the ADIs 19 and then we culled and referenced those. 20 harmonizing so we changed the name and very slowly everybody 21 came into harmony. 22 Q. The second part of the effort was I We had a hard time In all that work that you just described with respect to 23 IRIS, Integrated Risk Information System, that was all done 24 while you were at EPA? 25 A. Yeah. All that work was done, right. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 32 of 307 PAGEID #: 5033 Vol. 12 1 Q. Sir, were you traveling last week? 2 A. Yeah. 3 Q. Where were you? 4 A. I was in Geneva. 5 Q. For what purpose? 6 A. Switzerland. 32 Actually I was. I was offered to -- selected, I suppose, 7 to attend a joint meeting of the Food Agricultural 8 Organization. 9 And another unit of the World Health Organization to do So it's a part of the World Health Organization. 10 pesticide reviews. 11 two weeks. 12 the time I accepted it last year, but nevertheless. 13 they do is they review the toxicology or exposure information 14 for about 20 pesticides. 15 the Thursday you walk out of that meeting and they've got the 16 report done. 17 it. 18 gets released. 19 World Health Organization will use that information to set safe 20 levels of pesticides for their crops. 21 pesticide. 22 that's safe use. 23 Q. So this group gets together once a year for I didn't realize it was a two-week assignment at And what And when they do that, at the end of It's pretty impressive actually the way they do And then that report gets edited and things and then it Sometime later, different member countries, the So people can use the As long as it doesn't go above a certain level then All right. Let me focus this, sir. You mention the 24 CATT team and the jury's heard a little bit about that. 25 been at this for two weeks, going on three. We've Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 33 of 307 PAGEID #: 5034 Vol. 12 1 A. Okay. 2 Q. Let's bring up Defense Exhibit D613. 3 MR. MACE: 4 THE COURT: 5 BY MR. MACE: 6 Q. 7 May I approach, Your Honor? You may. Sir, do you recognize this as the final report that came out of the CATT? 8 A. Yes, it is. 9 Q. And do you understand, sir, that you're here to give 10 33 fact testimony regarding your involvement in the CATT team? 11 A. Yes. 12 Q. How did you get involved in the CATT team? 13 A. One or more of my staff, either myself or one of our 14 staff, were approached by a contractor with the State of West 15 Virginia to see if we could develop a small group to study this 16 issue. 17 Q. 18 If you could turn over, please, to page 6. paragraph. 19 The second Could you blow that up? It talks about the CATT team being tasked with 20 investigating the toxicity of C-8; developing provisional risk 21 factors; and, establishing human health protective screening 22 levels for air, water and soil. 23 accurate description of part of what you were doing? Does that sound like an 24 A. Yes. 25 Q. Go over to page 8, please. Blow up the third paragraph. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 34 of 307 PAGEID #: 5035 Vol. 12 34 The CATT toxicologists met on May 6 and 7, 2002 at EPA 1 2 offices in Cincinnati, Ohio. 3 memory? 4 A. Yes. 5 Q. And with respect to TERA, which you've talked about and Does that comport with your 6 the jury's heard a little bit about, at page 9, it says TERA is 7 a nonprofit corporation dedicated to the best use of toxicity 8 data to the development of risk values. 9 toxicologists on the CATT, whether from government agencies or 10 industry, were in unanimous support of including TERA in this 11 project. 12 13 14 15 16 Is that accurate to your memory? A. Well, the first line is accurate. I'm not so sure I knew about the second part. Q. Let's turn over to the next page, page 10. Why don't we bring up from the top of the page down to Mr. Briggs. 17 18 All the nonTERA So this meeting was held over two days, May 6 and 7, between these toxicologists? 19 A. Yes. 20 Q. Were you familiar -- are you familiar today or were you 21 familiar back at the time with these -- let's start with Mr -- 22 how does he say that? 23 A. Cicmanec. 24 Q. Dr. Cicmanec from USEPA. 25 A. I'm very familiar with Dr. Cicmanec. John Cicmanec. Are you familiar with him? I worked on the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 35 of 307 PAGEID #: 5036 1 Vol. 12 ADI work group with him and when we traveled on occasion, we 2 had to room together to save money. 3 Q. What about Dr. Rotenberg? 4 A. I know Dr. Rotenberg a little bit less well. He's in 5 Region 3 Philadelphia office. 6 recognize him. 7 basis. 8 Q. Jennifer Seed, Dr. Seed? 9 A. Dr. Seed is a well-respected toxicologist in USEPA. If he walked in here, I'd But I didn't work with him on a day-to-day 10 worked with her a number of times. 11 toxicologist. 12 13 14 15 Q. I She's a developmental Very astute. Dr. John Wheeler from the Agency for Toxic Substances and Disease Registry? A. I knew him a little bit less well. Probably not -- I wouldn't have recognized him prior to that meeting. 16 Q. And he's got that same certification, DABT? 17 A. It's a Diplomate of the American Board of Toxicology. 18 Q. Is that board certification? 19 A. Board certification in toxicology, yes. 20 Q. Tell us about this organization. 21 that term. 22 what it does. 23 35 A. I think the jury heard I don't think we ever talked about that agency is, It's a U.S. federal agency located in Atlanta, Georgia. 24 They didn't exist -- I guess they came into existence about 20 25 years ago when the Superfund site work became more prominent in Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 36 of 307 PAGEID #: 5037 Vol. 12 36 EPA, I believe at the time, was doing the 1 the U.S. government. 2 work and it was so extensive they created another agency. 3 sure there's some political things about that but I'm unaware 4 of any of that. 5 down there. 6 They also had some luminaries, Christa Rosa was another person 7 that came from EPA, went down there, did a lot of good work. 8 9 10 Q. I'm And they do have some really good scientists John Wheeler I got to know as a good scientist. These individuals from USEPA and the Agency for Toxic Substances Disease Registry, were these knowledgeable and competent people? 11 A. Oh, absolutely. 12 Q. Factually, sir, can you describe for us generally the 13 steps of the process that was followed by the CATT team to come 14 up with the drinking water screening level? 15 A. Well, yeah. In general what had happened was USEPA -- 16 TERA staff summarize a large body of information into tables 17 with summaries and then that information was passed out to the 18 CATT team probably three, four weeks ahead of the meeting. 19 CATT team then looked at the information. 20 questions, they could come to TERA and say, hey, I want more 21 information on this study or whatever. 22 meeting and at the meeting we carefully went through each study 23 trying to cull out about this study, where is the place where 24 the study doesn't show any effect. 25 The If they had And then we had the Because what toxicologists do, they'll test experimental Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 37 of 307 PAGEID #: 5038 1 Vol. 12 37 animals in an ethical way and they want to test a high enough 2 dose to cause a toxicity. 3 if you drink too much will kill you. 4 to see where the toxicity is and you test low enough to see 5 where there's no effect. 6 All chemicals are toxic, even water So you test high enough Between that gap, you study that and in the CATT team 7 study, each study that way and try to determine the no-effect 8 level and then the effect level. 9 culled it out as a no observe adverse effect level and they Once you determine that, they 10 went through each study. 11 looking at different studies and applying this thing called a 12 safety factor or uncertainty factor to take that animal 13 no-effect level and project it to people. 14 dose for people. 15 Once they did that, they started That becomes a safe So the CATT team did that with each study and then at 16 the end, they went through and had a discussion about the 17 appropriate safety factors for each study because they're not 18 always the same. 19 Q. And was it an open discussion -- based on your personal 20 observations was it an open discussion among the various 21 people? 22 A. Open discussion and free flowing. One reason it's free 23 flowing is what we do in our particular situation and what was 24 followed here is that we don't say who said what in the notes 25 so there isn't a person assigned to a particular statement. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 38 of 307 PAGEID #: 5039 1 Vol. 12 Even though during the meeting, of course, a person makes a 2 particular statement. 3 38 What that allows is anybody to make whatever comment 4 they want based on the science and that focusing on the science 5 is what we had in our meeting. 6 discussion. 7 8 Q. You mention the minutes. It was a free-flowing Could we bring page 10 back up, please? 9 So this page of the report is titled the CATT 10 toxicologist meeting minutes. 11 check your copy there, does that continue through page 35 of 12 the report? It starts at page 10. Could you 13 A. That's correct. 14 Q. And is that detailed minutes of the various studies that 15 you looked at, some of the key points that were brought out 16 about the studies and the votes to conclusion? 17 A. That's correct. 18 Q. And with regard to that, reaching a conclusion, how did 19 20 that work? A. Was it one person/one vote or some other method? The attempt is to do consensus. Unanimous consensus 21 would be ideal, of course. 22 for many of the studies we did have unanimous decisions on 23 where the no-effect level was and the effect level. 24 uncertainty factors discussions were a little bit more less 25 unanimous. The studies are pretty complex and The So in those cases what we did was we just voted. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 39 of 307 PAGEID #: 5040 1 Vol. 12 Everybody was heard and then the chair, Dr. Staats would -- 2 If someone said, hey, the safety factor should be 10, 3 which is sort of our default maximum and other people said, 4 well, I don't think that's a worry at all. 5 be 1, which is basically saying I don't think we should even 6 use it and other people would say, well, it should be halfway 7 between. 8 you multiply them. 9 think normally. I think it should Well, halfway between when you use safety factors, Halfway between is not 5 which is what you It's 3. Three times three is about ten. 10 probably a scientific technical point. 11 the midway point. 12 It's But three is kind of So people would say 1, 3 or 10 often. If there was a 13 spread, the chair would say can we all live with, let's say, 14 this number. 15 what they went with. 16 different votes. 17 18 Q. Let's say 3. If you can live with it, that's But sometimes we voted and there was That's all laid out in the document. Let's get to the results over at page 33. If you could bring up the screening levels. 19 The report says the screening levels are calculated 20 following the premise that if lifetime exposure is equal to or 21 less than the pRfD or pRfC then no risk of deleterious effect 22 is expected. 23 A. 24 RfC. 25 Q. 39 Is that right? That's correct. According to the definition of RfD or What are those describing? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 40 of 307 PAGEID #: 5041 1 A. Vol. 12 40 The reference dose is the dose with uncertainty spanning 2 perhaps an order of magnitude kind of a tenfold. 3 of imprecise. 4 daily oral exposure or the case of an RfC inhalation, 5 continuous inhalation exposure, it's likely to be without 6 deleterious effects for a lifetime in sensitive subgroups. 7 the general population including sensitive subgroups. 8 protects everybody. 9 Q. 10 11 12 The daily, in the case of a reference, those We can go to page 35. So this Blow up for water. The determination was for water that that number was, is that 150 parts per billion? A. 150 micrograms per liter is parts per billion. THE COURT: 14 MR. DOUGLAS: 16 Is there an objection? Your Honor, I would request at this time the limiting instruction with respect to this number. THE COURT: I'll see you at side-bar. 17 You may stand if you wish, ladies and gentlemen. 18 - - - 19 20 In That's the intent. 13 15 So it's kind Thereupon, the following proceeding was held at side-bar: THE COURT: The defendants had a different proposed. 21 You want me to use the 2014 as the date of the science -- 2012, 22 excuse me. 23 MR. MACE: 24 THE COURT: 25 MR. DOUGLAS: Yes. Do you have an objection to that? I'm sorry, I'm not following that. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 41 of 307 PAGEID #: 5042 Vol. 12 41 Mentioning the date that the science panel 1 MR. MACE: 2 came out with the finding. 3 THE COURT: 4 MR. BILOTT: 5 MR. DOUGLAS: I don't think it's a good idea to change anything. 8 9 We would ask that the Court read the original instruction that was agreed to. 6 7 As 2012. THE COURT: It's a long one. I've given it at least, I'm going to guess, seven or eight times. 10 MR. DOUGLAS: But I think this is an important time to 11 give it and I would note that any time the word trial has been 12 mentioned, Mr. Mace pops out of his seat and requests that 13 charge. 14 THE COURT: I'm going to use, for now, the one that 15 was the previous one but I did ask, I think, Mr. O'Brien to 16 take a look at this and tell me what his view is. 17 address that the next time. 18 MR. DOUGLAS: We'll Thank you, Your Honor. 19 - - - 20 Thereupon, the following proceedings were had in open 21 22 23 24 25 court: THE COURT: Counsel, let me see you again at side-bar. Ladies and gentlemen, you may stand by your seats, if you wish. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 42 of 307 PAGEID #: 5043 Vol. 12 - - - - 1 2 Thereupon, the following proceeding was held at side-bar: 3 THE COURT: This is not in the list that we put 4 together. 5 beginning of the case? Are you talking about the instructions I gave at the 6 MR. MACE: 7 MR. DOUGLAS: 8 THE COURT: 9 I think that is. And several times during the course. Very good. I'll just stay with the script that we used at the beginning of the case. Thank you. 10 - - - 11 Thereupon, the following proceedings were had in open 12 court: 13 14 42 THE COURT: So, ladies and gentlemen, I know you've heard this before but this is an important part of this case. 15 As you recall, the parties agreed before this case 16 started that, based on the science panel, there was a level 17 that if Mrs. Bartlett proves she's entitled to, that being that 18 she drank the water for more than a year and that the water she 19 drank contained a C-8 level of greater than .05 parts per 20 billion then the issue of general causation would not be one 21 for you to decide. 22 We're looking at a different standard here, earlier in 23 time. 24 DuPont's conduct but not with regard to the issue I just 25 mentioned that the parties have agreed to. And that's offered for you to consider when you look at Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 43 of 307 PAGEID #: 5044 Vol. 12 1 So with that, you may continue. 2 MR. MACE: 3 BY MR. MACE: 4 Q. 5 6 Thank you, Your Honor. Dr. Dourson, I think you mentioned that you could help us understand part per billion maybe? A. Right. So the way you look at part per billion is you 7 take a sugar packet, you open up and you dump it out and you 8 have all those little sugar granules. 9 different amounts. Of course they all weigh Generally they're 10 micrograms to 10 100 micrograms. 11 you get 10 micrograms. 12 or three cans of Coke or something like that, that's 10 parts 13 per million. 14 15 16 43 So if you lick your finger and pick one up, If you put that into a liter of water, 10 micrograms per liter. So 150 is more than that. It's two or three of them, depending on how much they weigh. Q. So before we leave the CATT report, let me just point 17 out a couple things. 18 and there's the DEP -- DEP is the Department of Environmental 19 Protection? At page 46 there's a discussion on water 20 A. I believe so, yeah. 21 Q. Notes the water screening level is higher than DuPont's 22 internal community exposure guidelines for drinking water of 1 23 or 3 parts per billion. 24 developed in the early '90s and based solely on two-week 25 inhalation study from '86. However, these guidelines were Since then, significant additional Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 44 of 307 PAGEID #: 5045 1 Vol. 12 toxicology data have been collected and the CATT water SL is 2 based on a comprehensive examination of all available 3 information. 4 Did you feel that the number that you came up with with 5 this CATT team was based on a comprehensive examination of all 6 available information? 7 8 MR. DOUGLAS: Objection. Calling for an expert opinion. 9 THE COURT: 10 We're getting right up to that. This witness is here to talk about the methodology and 11 just the process by which this was done, not to give an expert 12 opinion on anything in conclusions like that. 13 14 With that distinction in mind, he may answer the question. 15 BY MR. MACE: 16 Q. 17 18 44 You may answer, Doctor. Did you feel that your process involved a comprehensive examination? A. Absolutely. The fact is, the usual process is one group 19 does -- looks at all the data by themselves and after they 20 write the report they get it peer reviewed by an outside group. 21 This was different in that we had an outside group come 22 together and collectively develop the risk value. 23 actually surprising that we got it done in two days. 24 never done that before. 25 taken this as a model to apply to other situations. It was We've We've done it since because we've So it was Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 45 of 307 PAGEID #: 5046 1 Vol. 12 a very good rendition of the data and a good discussion with 2 different viewpoints during the course of the two days. 3 Q. One other point. If we could go over to page 27. 4 paragraph here on the cancer hazard. 5 identification. 45 This Talks about cancer hazard 6 The panel discussed the evidence for C-8 carcinogenicity 7 in humans and agreed that the human carcinogenicity evidence is 8 inconclusive. 9 retired workers, three of these four cases now are known to 10 Although four prostate tumors were reported in have minimal or no C-8 exposure. 11 As part of the studies that the CATT team discussed, did 12 you discuss the '93 Gilliland thesis about the 3M plant and the 13 prostate cancer? 14 A. I believe I did. 15 Q. Could you check the report and look at it? 16 A. That was a human study section? 17 18 19 Mandel 1996? Q. I'd have to check to make sure. That was Gilliland and Gilliland and Mandel 1993. I see it. Did your team review both the '93 Gilliland and Mandel and the '96 update? 20 A. Yes, we did. 21 Q. Doctor, did the toxicologists who participated in coming 22 up with the determination that the lifetime exposure to the 150 23 parts per billion or less of C-8 would have no risk of 24 deleterious effects, did those toxicologists sign a 25 certification of the final report? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 46 of 307 PAGEID #: 5047 Vol. 12 1 A. 2 3 Yes, they did. MR. MACE: May I approach the deputy clerk, Your Honor? 4 THE COURT: 5 BY MR. MACE: 6 Q. 7 46 You may. Doctor, we've handed you what's been marked as D1812. Do you recognize that? 8 A. Yes, I do. 9 Q. Are those copies of the signed certifications? 10 A. Yes, they are. 11 Q. Could you please bring up 1812? 12 dot 3. 13 top. 14 Let's start with page Mr. Hoeppner, if you could bring up the language at the I apologize for the quality of this. Can you see the 15 words, I agree that the notes, as presented, accurately reflect 16 the panel's discussion and conclusions during the May 6 to 17 7, '02 C-8 assessment of toxicity toxicologists panel meeting. 18 You see that language? 19 A. Yes, sir. 20 Q. Down below, did Dr. Wheeler from ATSDR signed that? 21 A. Yes, he did. 22 Q. Go back to the cover page. 23 Did Dr. Rotenberg from EPA sign that? 24 A. Yes, he did. 25 Q. Go to page dot 4. Did Dr. Seed from EPA sign that? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 47 of 307 PAGEID #: 5048 Vol. 12 1 A. Yes, she did. 2 Q. And over at dot 5 did Dr. Cicmanec sign it as well? 3 A. Yes, he did. 4 Q. Did you sign it as well? 5 A. Yes, I did. 6 Q. Did all ten of the toxicologists sign it, sir? 7 A. We all signed it. 8 Q. And back at that time, sir, after the final report had 9 10 11 been issued, what was your feeling about the process that had been used to come up with that number? A. Again, I -- 12 MR. DOUGLAS: 13 THE COURT: Objection. I think it's the framing of the question. 14 Rephrase that, please. 15 Mr. Douglas on his feet. 16 BY MR. MACE: 17 Q. Feeling is the word that set Sir, that process, did you feel that that was a fair and 18 reliable process that had been used to come up with that 19 number? 20 21 MR. DOUGLAS: Same objection. THE COURT: 23 The objection is overruled. 25 It's word. It's an expert opinion. 22 24 47 THE WITNESS: Overruled. It's a question about process. You may answer. I thought the process was great. And, again, we've used it subsequently to do complex evaluation. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 48 of 307 PAGEID #: 5049 Vol. 12 1 BY MR. MACE: 2 Q. 3 Sir, let me switch topics a second. Are you familiar with the term conflict of interest? 4 A. Yes, I am. 5 Q. What does that refer to? 6 A. Well, there's a couple ways you could look at it. We 7 have a well-established -- we have a conflict of interest 8 statement on our website for all peer reviews and work that we 9 do. Conflict of interest can look to be a financial conflict 10 of interest. 11 DuPont, for example, and I would go into this meeting, I would 12 have a financial conflict of interest. 13 conflict of interest. 14 So it's not like it's wrong but if I own stock in That's a financial There are times when a conflict of interest might be -- 15 well, let's go to the bias. 16 way scientists look at biases is we're all biased. 17 toxicologist so I look at epidemiology data from a toxicology 18 perspective. 19 Then they have biases. 21 intense biases, that's a conflict. 22 We go through that with each of our panels. 25 I'm a So you balance biases on peer review panels but you avoid conflicts of interest. 24 And the I have a toxicology bias. 20 23 48 Q. On occasion, someone has such And that's a judgment call. Sir, did you have a conflict of interest in working on the CATT team? A. No. Not at all. I didn't have a financial conflict of Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 49 of 307 PAGEID #: 5050 1 2 Vol. 12 interest for the reasons that we described on our website. Q. Did anybody at TERA? You had some other members of your 3 team that were on that group. 4 conflict of interest working on the CATT team? Did anybody at TERA have a 5 A. No. 6 Q. A separate issue, Dr. Dourson. They didn't have a financial conflict of interest. If anybody suggested to 7 the jury that TERA was biased toward industry, is that 8 accurate? 9 A. Well, I wouldn't use the word biased toward industry. 10 Our mission is to protect public health and we do this by 11 looking at the science as best possible. 12 dedicated to the best use of tox data for risk values. 13 what we're all about. 14 work with industry and government and NGOs, nongovernment 15 organizations, to build teams to do this. 16 a team you can't be overtly or even partially biased with one 17 part of the team or other. 18 really -- we strive to be neutral in all cases. 19 Our motto is That's We build collaborative information so we When you're building You have to just be neutral. We're If someone said that, I would encourage them to look at 20 our website. 21 types of work we've done. 22 accolades. 23 that have talked about us. 24 General wrote a report on peer reviews -- 25 49 You can look at the funding, you can look at the You can look at, I don't want to say That's probably too strong. MR. DOUGLAS: There have been people For instance, the EPA Inspector Your Honor, I'm going to ask that that Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 50 of 307 PAGEID #: 5051 Vol. 12 1 be stricken. 2 THE COURT: The objection is sustained. 3 BY MR. MACE: 4 Q. Back in 2002, so let's focus on the year in question. 5 A. Sure. 6 Q. Back in 2002. 7 2002? 8 A. No. 9 Q. You mentioned funding. 10 MR. MACE: 11 THE COURT: 12 BY MR. MACE: 13 Q. 14 Was TERA biased toward industry back in May I approach, Your Honor? You may. Have you been handed a demonstrative aid which is a printout from your website of funding from over the years? 15 A. Yes. 16 Q. Bring that up, please. 17 20 And if we could bring up the table at the bottom. 18 19 What is this graphic showing in terms of just overall before we focus on 2002? A. Just overall it's just the amount work we do for 21 government other than nonprofit versus industry and industry 22 related. 23 24 25 50 Q. So in 2002, which was the year of this CATT team report, how did the breakout work? A. Well, yeah. 72 percent was government or other Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 51 of 307 PAGEID #: 5052 1 2 3 4 5 6 7 Vol. 12 51 nonprofit work and 28 percent was industry or industry related. Q. And that number has varied at different times in different years? A. Oh, yeah. Roughly it's about two-thirds government, one-third industry, roughly. Q. Sir, were you personally present during these CATT team meetings, both days, on May 6 and May 7 of 2002? 8 A. Yes. 9 Q. Did you personally observe what went on in the meetings? 10 A. Yes. 11 Q. The jury has seen Mr. Kennedy from Mr. DuPont was part 12 of the meeting? 13 A. Yes, he was. 14 Q. Based on your personal observations, was Mr. Kennedy 15 dominating the discussion? 16 A. No. 17 Q. Did you hear Mr. Kennedy try to strong-arm anyone into 18 voting a certain way? 19 A. No. 20 Q. We saw up on the list that Dr. Butenhoff from 3M was 21 also there as an invited guest? 22 A. Yes. 23 Q. Since 3M had conducted a number of the animal studies 24 and was the manufacture and supplier of C-8 was it helpful to 25 have him there to answer questions anyone would have? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 52 of 307 PAGEID #: 5053 1 A. 2 this. 3 Q. Yes. Vol. 12 52 Study directors are always useful at meetings like During your personal observations during those two days 4 of the meetings, did any of the industry representatives 5 dominate the discussions or the voting? 6 A. No. 7 Q. Were the industry folks lobbying for higher numbers for 8 the screening level? 9 A. No. 10 Q. Bottom line, Dr. Dourson, did it appear to you that the 11 CATT team process was an unbiased process with an open 12 discussion of the science based on the knowledge at the time? 13 A. Absolutely. 14 Q. Sir, did anyone coerce you or improperly influence you 15 in any way to arrive at 150 part per billion number? 16 A. No. 17 Q. Before I sit down, sir, have you ever testified for me 18 before? 19 A. No. 20 Q. Have you ever testified for anyone from my law firm, 21 Squire Sanders or Squire Patton Boggs before? 22 A. No. 23 Q. Have you ever been employed by DuPont? 24 A. No. 25 Q. Do you own any stock in DuPont? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 53 of 307 PAGEID #: 5054 Vol. 12 - 53 1 A. No. 2 Q. Did you receive a subpoena to be here to testify today? 3 A. Yes, I did. 4 Q. Was that served on your at your office at the University 5 of Cincinnati? 6 A. Yes, it was. 7 Q. Other than reimbursement of your mileage expenses for 8 traveling here to testify and your daily subpoena attendance 9 fee of $40 are you receiving any money from DuPont? 10 A. From DuPont, no. 11 Q. Did I talk to you by phone to check on some facts a 12 couple of times over the past few months? 13 A. Yes, you did. 14 Q. Did you ever meet me before you walked into the 15 16 courtroom today? A. 17 18 No, I haven't. MR. MACE: Thank you, sir. I have nothing further at this time. 19 THE COURT: 20 Thank you, Mr. Mace. Mr. Douglas, you may cross-examine. 21 - - - 22 CROSS-EXAMINATION 23 BY MR. DOUGLAS: 24 Q. Good morning. 25 A. Top of the day to you. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 54 of 307 PAGEID #: 5055 1 Q. Vol. 12 54 Not accustomed to hearing somebody say top of the day. 2 I haven't been in England for quite a while. 3 acceptable way of saying good morning. 4 A. It certainly is. 5 Q. And a good morning to you, sir. 6 I guess it's an Did I hear you say you received a subpoena to be here 7 today? 8 A. Yes, I did. 9 Q. You don't mean to imply to our jurors that but for the 10 subpoena you wouldn't be here? 11 A. I'm not sure how to answer the question. 12 Q. Let me see if I can help you out. 13 When did you receive the subpoena? 14 A. Yesterday. 15 Q. Where were you when you received it? 16 A. At the University of Cincinnati. 17 Q. What time of day did you receive it? 18 A. I think it was the afternoon. 19 Q. How long have you been in Columbus? 20 A. You mean this morning? 21 Q. When did you get to Columbus, Ohio? 22 A. I came in about -- left Cincinnati at 5:30. 23 roughly. 24 Q. You did not arrive yesterday? 25 A. No, sir. 7:30 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 55 of 307 PAGEID #: 5056 1 2 Q. Vol. 12 And so but before you received the subpoena you knew 55 that you were going to be here today and testify, correct? 3 A. Yes, I had been -- 4 Q. When did you first know, sir, that you were going to 5 travel from Cincinnati to Columbus, Ohio to give testimony for 6 the defendant DuPont in this case? 7 A. Probably last week. 8 Q. That's the first time you ever heard that your testimony 9 10 11 would be wanted in this case, in this trial? A. directly. 12 Q. 13 case? 14 A. 15 16 17 18 19 No. Pardon me. Maybe I misunderstood it. What was the question? When were you first asked to give testimony in this I was -- probably several months ago when -- well, I'm not so sure. Q. I thought I answered your question Several months ago Mr. Mace had questions. And you had spoken to Mr. Mace before today. This isn't the first time you've spoken with him? A. Oh, no. I've spoken with Mr. Mace. He had questions about part of the files that we kept. 20 Q. Was that by telephone? 21 A. Yes. 22 Q. Have you ever met Mr. Mace before? 23 A. No. 24 Q. Have you met anybody from his firm before? 25 A. I don't believe so. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 56 of 307 PAGEID #: 5057 Vol. 12 1 Q. What do you mean you don't believe so? 2 A. I don't know everybody in his firm. 3 Q. You didn't mean to suggest to our jurors that you just 56 4 found out yesterday, you got a subpoena and you got in your car 5 and came here all bright-eyed and bushy-tailed, ready to go to 6 give testimony that you had no idea of -- no way of knowing 7 that you were going to -- 8 A. I don't mean to imply that. 9 Q. By the way, you know that -- my name, by the way, is 10 Mr. Douglas. Gary Douglas. 11 A. Nice to meet you. 12 Q. Good to make your acquaintance. You know that folks, 13 paralegals and attorneys from my team, have tried to call you 14 and ask you questions about your files. 15 A. Okay. 16 Q. And you know a Ms. Carol Moore? 17 A. Good morning. 18 Q. Why don't you tell the jurors, do you check your 19 She's a paralegal. messages, sir? 20 A. Check my messages? 21 Q. Yeah. 22 A. Absolutely. 23 Q. Then you know that Ms. Moore has been calling you When people leave a message and they call? 24 several times and you have yet once to return her call. 25 know that? Do you Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 57 of 307 PAGEID #: 5058 Vol. 12 1 A. I'm not aware of that, sir. 2 Q. You're not aware of that. 3 I thought you checked your messages? 4 A. As I said, I'm not aware of any message from Ms. Moore. 5 Q. So would you be willing to talk to us privately, as you 6 spoke to Mr. Mace? 7 A. Absolutely. 8 Q. Then why didn't you return her calls? 9 A. Sir, I don't know -- I'm not aware of any calls from 10 Mrs. Moore. 11 Q. So when you leave today would you mind talking with me? 12 A. No. 13 Q. Sir, what is your salary? 14 A. At the University? 15 Q. Let's start with TERA. No problem at all. THE COURT: 16 - - - 18 Thereupon, the following proceeding was held at side-bar: 20 21 22 I'll see you at side-bar, counsel. You may stand by your seats, ladies and gentlemen. 17 19 THE COURT: What's this? I mean, he's connected to TERA. MR. DOUGLAS: He's representing that he works for this 23 nonprofit company, that's looking out for the public health 24 which is -- I'm trying to expose that as being just a facade. 25 57 THE COURT: Did you watch the woman from Planned Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 58 of 307 PAGEID #: 5059 1 Vol. 12 Parenthood testify before Congress that she made 500,000 a 2 year? 3 the fees are always in play. 4 DuPont. 5 You can tell. If this is somebody who was an expert, But he's not being paid by So what difference does the salary make? MR. DOUGLAS: Because Mr. Mace didn't get into 6 betraying the MSS person who is so concerned about the public 7 health I wouldn't get into it. 8 9 10 THE COURT: I'm assuming the head of the Sierra Club makes a lot of money too. What inference would the jury draw from his salary? 11 12 MR. DOUGLAS: That he's not as altruistic as he's painted to be. 13 THE COURT: I just don't see it. There are people who 14 had nonprofits who are not connected to anything to do with 15 industry that make a lot of money. 16 MR. DOUGLAS: Okay. It's not probative. I'll move on. 17 - - - 18 Thereupon, the following proceedings were had in open 19 58 court: 20 THE COURT: 21 MR. DOUGLAS: Mr. Douglas, you may continue. Thank you, Your Honor. 22 BY MR. DOUGLAS: 23 Q. Writing down some notes? 24 A. Yes. 25 Q. Does it have to do with your testimony? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 59 of 307 PAGEID #: 5060 1 2 3 A. Yes. Vol. 12 I wrote down your name so I'd remember it, Mr. Douglas. Q. Sir, I just want to get this straight. You were hired, 4 you say, by the West Virginia Department of Environmental 5 Protection, correct? 6 A. I think -- 7 Q. Your company was? 8 A. I think it was a contractor to West Virginia that 9 approached us. 10 Q. Who was that? 11 A. I don't recall off the top of my head. 12 Q. What kind of contractor? 13 A. A contractor that works for the State of West Virginia. 14 Q. What do they do? 15 A. I don't know. 16 Q. So you get contacted by this contractor and you put 17 together, if I understand correctly, a summary of the studies 18 that you had been provided with from DuPont, right? 19 A. Well, there was two tasks. The first task was for the 20 TERA staff to put together a summary of information on this 21 particular chemical which included available information on 22 literature search. 23 24 25 Q. So the summary -- and then the summaries were put together by TERA, your company, right? A. Right. What we did then is we summarized -- 59 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 60 of 307 PAGEID #: 5061 Vol. 12 1 Q. Just yes or no is fine. 2 A. Yes. 3 Q. Then you took the summaries and you gave them to the 4 5 6 7 8 members of the CATT team? A. The summaries and associated references were given to the CATT team, yes. Q. And then a few weeks passed by and you have this meeting, right? 9 A. Yes. 10 Q. And this meeting lasted a grand total of two days, 11 correct? 12 A. That's correct. 13 Q. And by the end of those two days the CATT team comes up 14 with this number of 150 parts per billion which is 150 times 15 higher than the level which had been set at that time by 16 DuPont, right? 17 18 60 A. I'm not aware of what DuPont had set at that time so I'm not sure how to answer your question, sir. 19 Q. I'll rephrase it for you. 20 A. Okay. 21 Q. So in this two-day meeting where you're discussing all Thank you. 22 of this -- all the summaries and all the scientific literature, 23 whatever it was you were doing, grand total of two days you 24 came up with this 150 parts per billion number, right? 25 A. Well, that forgets the prior three or four weeks the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 61 of 307 PAGEID #: 5062 Vol. 12 1 2 team was studying it. Q. 3 4 THE COURT: Read back the second to last question from Mr. Douglas and we'll let the witness answer. (Thereupon, the last question was read by the court reporter.) 9 THE COURT: 10 THE WITNESS: 11 BY MR. DOUGLAS: 12 Q. 13 Your Honor, I object to the interrupting of the witness. 7 8 So in a matter of three or four weeks and two days -MR. MACE: 5 6 61 And your answer? No. It was a grand total of three or four weeks plus these two days? 14 A. Yes. 15 Q. From the time you were contacted by this contractor, 16 whose name you can't recall, and the time that the CATT team 17 came up with this 150 parts per billion? 18 A. Yes. 19 Q. Now, did I hear you say you didn't know at the time that 20 you did this allegedly comprehensive review that DuPont had 21 already set a level of 1 part per billion? 22 correctly? 23 A. I wasn't sure that I knew that. 24 Q. Are you sure today? 25 A. No. Did I hear that Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 62 of 307 PAGEID #: 5063 Vol. 12 Did Mr. Mace when he spoke to you remind you of that 1 Q. 2 fact? 3 A. He mentioned that fact. 4 Q. So he mentioned the fact but you forgot about it today? 5 A. At the time -- 6 Q. Which -- 7 A. At the time of the meeting I don't remember being aware 8 9 I don't think he -- of that fact. Q. So you wouldn't be aware of, if you were not aware of 10 that fact, that DuPont had already set a level of 1 part per 11 billion for water, you certainly weren't aware of how they 12 derived that number, correct? 13 A. That's correct. 14 Q. And would it be fair to say that at that point in time 15 the folks at DuPont, the time you assembled your CATT team and 16 in this three or four weeks came up with this 150 part per 17 billion number, would it be fair to say that when you were 18 first contacted by this contractor, whose name you can't 19 recall, that DuPont would have known a lot more about C-8 than 20 you, right? 21 A. Before we were contacted, I would presume so, yes. 22 Q. You knew nothing about C-8 at that point in time, 23 correct? 24 A. I wouldn't say that. 25 Q. Since you guys brought it up on the direct examination 62 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 63 of 307 PAGEID #: 5064 1 Vol. 12 63 about whether your company, TERA, is biased, you know the old 2 Shakespeare saying, he doth protest too much? 3 with that saying? You familiar 4 A. Unfortunately, no. 5 Q. Didn't read much Shakespeare? 6 A. Wasn't my strong suit. 7 Q. I didn't do too well in that class either. 8 9 So since you guys brought it up, I have a few questions about it. 10 A. Absolutely. 11 Q. Let's start with how your company was approached. Please do. You 12 don't -- you didn't know that you were handpicked by DuPont to 13 do this work? 14 MR. MACE: 15 THE COURT: 16 Assumes facts. Unless there's a foundation for that question, the objection is sustained. 17 BY MR. DOUGLAS: 18 Q. 19 Objection, Your Honor. Did you know, sir, that you were handpicked by DuPont to do this work? 20 A. No. 21 Q. And speaking of bias, you have been accused, on many, 22 many occasion, of being industry biased. 23 industry. 24 investigative journalists and in consumer interest groups, 25 correct? Biased in favor of Many media reports, investigative reports by Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 64 of 307 PAGEID #: 5065 Vol. 12 1 MR. MACE: 2 THE COURT: Objection, Your Honor. It has to come from the witness, not the 3 attorneys. 4 answers from witnesses that are the only evidence you can 5 consider. Keep in mind questions are not evidence. 6 You may seek your answer. 7 You may answer. 8 THE WITNESS: 9 10 Okay. It's the Thank you. I guess I'm going to have to say no to that because of the way you phrased it. 11 BY MR. DOUGLAS: 12 Q. So you have been the subject of news reports, 13 investigative news reports where you've been accused of having 14 an industry bias. Yes or no? 15 A. Yes. 16 Q. And you've been quoted in a number of these 17 investigative news reports denying wholeheartedly that you are 18 biased in favor of industry, correct? 19 A. I'm hung up on your word numerous. 20 Q. More than one? 21 A. More than one, yes. 22 Q. How many times? 23 A. I'm aware of maybe three. 24 25 Independently -- well, three reports. Q. One of them dubbed you the industry favorite, right? 64 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 65 of 307 PAGEID #: 5066 Vol. 12 1 A. I don't -- 2 Q. You were quoted extensively -- weren't you quoted 3 extensively in an article in which you were referred to as a 4 favorite of industry. 5 journalist. A Pulitzer-Prize-winning news Does that refresh your recollection? 6 A. No, it does not. 7 Q. Why don't we -- 8 A. That would be helpful if you pull it up. 9 MR. MACE: 10 THE COURT: Could we approach, Your Honor? I'll see you at side-bar. 11 You may stand if you wish, ladies and gentlemen. 12 - - - 13 Thereupon, the following proceeding was held at side-bar: 14 15 THE COURT: Do we have the article? And you'd like to -- you would cross him with his own statements? 16 17 65 MR. DOUGLAS: Well, and the matters that he responded to. 18 MR. MACE: But it's pretty extraneous, Your Honor, in 19 using the hearsay statements from some media source. 20 thing to ask him about his statements without displaying the 21 document. 22 document that has hearsay statements by media with nobody I can 23 cross. 24 25 It's one I don't think he should be allowed to display the He wants to bring the reporter in -THE COURT: certainly fair game. I'm with you. His statements in here are And if he can -- I'm sure he's seen the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 66 of 307 PAGEID #: 5067 1 Vol. 12 article but that doesn't necessarily make it admissible. 2 MR. DOUGLAS: 3 THE COURT: 4 MR. MACE: 5 May I lay the foundation? You can try. You're not going to allow him to display it. 6 THE COURT: 7 MR. DOUGLAS: Don't display it. It will not be displayed. 8 - - - 9 Thereupon, the following proceedings were had in open 10 court: 11 MR. DOUGLAS: 12 THE COURT: May I approach, Your Honor? You may. 13 BY MR. DOUGLAS: 14 Q. Do you recognize the article? 15 A. Yes, I do. 16 Q. It's entitled One-stop science shop has become a 17 favorite of industry-and Texas. Is that the article? 18 A. Yes, it is. 19 Q. And you're quoted extensively in this article, correct? 20 A. I'm quoted in the article, correct. 21 Q. And this was in the Pulitzer-Prize-winning news 22 organization Inside Climate News, right? 23 A. I don't -- 24 Q. You don't recall? 25 A. I don't know that. 66 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 67 of 307 PAGEID #: 5068 1 Q. Vol. 12 67 In this article you deny -- you are quoted extensively 2 denying accusations that you are an industry favorite, the 3 go-to guy, the guy who sets these limits really, really high so 4 that industry can just slide right through, right? 5 A. Would you like to point to a particular piece, sir? 6 Q. Absolutely. 7 A. Thank you so much. 8 Q. Do you deny the accusation, second page, one, two, 9 three. 10 You're quoted. third paragraph? 11 12 You see where you're quoted in the THE COURT: You've seen this article, you're familiar with it? 13 THE WITNESS: 14 THE COURT: Yes, sir. Go ahead. 15 BY MR. DOUGLAS: 16 Q. You're quoted on that page, right? 17 A. Line three? 18 Q. Line three. 19 A. Of page two? 20 Q. On page two. 21 A. Right. 22 Q. Below that, and you're responding to an accusation in an Absolutely. 23 investigation by the Center for Public Integrity and Inside 24 Climate News shows your firm has close ties to chemical 25 manufacturers, tobacco companies and other industries. You Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 68 of 307 PAGEID #: 5069 Vol. 12 1 were quoted responding to that accusation and that 2 investigation by the Center for Public Integrity, right? 3 A. That's not correct. 4 Q. Do you see the words -- 5 THE COURT: 6 Go ahead. 7 Wait. I wasn't -- You interrupted. Finish your answer. THE WITNESS: I wasn't responding to accusations. 8 was just being interviewed by a reporter and answering the 9 questions posed by the reporter. 10 BY MR. DOUGLAS: 11 Q. 68 I And the questions had to do -- you were asked about an 12 investigation by the Center for Public Integrity which found 13 that your company had close ties to chemical industry, tobacco 14 industry and other industries, right? 15 16 17 A. not in evidence. Q. 18 19 Well, again, sir, you're asking a question about facts I wasn't -- Are you a lawyer, sir? THE COURT: Let's not get into that. That's beyond what this witness can say. 20 Ask the next question. 21 BY MR. DOUGLAS: 22 Q. The subject matter of your interview was this 23 investigation of your company by the Center for Public 24 Integrity. 25 A. It's right there. That's not correct. Take a look. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 69 of 307 PAGEID #: 5070 1 Q. Vol. 12 69 You see on the paper where it says, an investigation by 2 the Center for Public Integrity. 3 from, sir? You see where I'm reading 4 A. I see that. 5 Q. You see where it says, shows the firm has ties to 6 That's what the -- chemical -- 7 MR. MACE: 8 THE COURT: 9 THE WITNESS: Object to the cutting off of the witness. He didn't finish the answer. Sir, this is written by a reporter. 10 interviewed with the reporter prior to this. 11 with a reporter who asked me questions about TERA. 12 in response to anything in particular. 13 afterwards. 14 wasn't responding to anything along these lines. 15 answering questions of the reporter. I I interviewed It wasn't And I got this And the words that you say are correct but I 16 BY MR. DOUGLAS: 17 Q. I was just But you know that there was an investigation of your 18 company by the Center for Public Integrity in regard to your 19 close ties to the chemical industry, tobacco industry and other 20 industries. You're aware of that? 21 A. There was a report prior to this thing. 22 Q. And there's a report after this thing. 23 A. Is there? 24 Q. Not surprised to hear that? 25 A. Surprised to hear what? Okay. Thank you. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 70 of 307 PAGEID #: 5071 1 2 Q. Vol. 12 70 That there would be other reports of your close ties to the chemical industry? 3 A. You're surprised to hear that? 4 Q. Are you surprised, sir? 5 A. Yes, actually I am. 6 Q. If you go to the next page, I want to ask you about -- 7 A. Sure. 8 Q. 9 -- something else in this article about your company and you. 10 A. Okay. 11 Q. 3 of 9. 12 A. I've got 3 of 12. 13 Q. Are you familiar with the term, quote, whitewashing the Page 3. 14 work of industry, end quote? 15 phrase? 16 A. No. 17 Q. Your firm has been accused of whitewashing the work of 18 Are you familiar with that industry, hasn't it? 19 A. If you say so. 20 Q. That's what you did in your work coming up in this Are you saying -- 21 three-week magical period of coming up with this 150 parts per 22 billion. 23 if you can't answer it yes or no, I'll come up with another 24 question. 25 A. You whitewashed DuPont's C-8 problem, yes or no? No. Affirmatively no. And Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 71 of 307 PAGEID #: 5072 1 Q. Vol. 12 71 In fact, you defended, in this interview, your decision 2 to work with the tobacco industry, right? 3 your prerogative. Which is fine. It's Do you recall defending that? 4 A. I made a comment about a hypothetical. 5 Q. And you said in response to -- in defending your 6 decision to work with the tobacco industry you said, quote, 7 Jesus hung out with prostitutes and tax collectors. 8 dinner with them, end quote, to justify your work with the 9 tobacco industry. He had Were those your words, sir? 10 A. 11 words. I like to get Jesus quotes in as often as I can. 12 Q. In terms of hanging out with prostitutes, are you The premise of your question is incorrect. Those are my 13 analogizing DuPont with the tobacco industry, the companies you 14 work with to prostitutes and tax collectors? 15 16 THE COURT: I don't think DuPont is in this article, so strike that part of the question. 17 THE WITNESS: It was a hypothetical response given to 18 a reporter's question. 19 tobacco industry that they surmised. 20 BY MR. DOUGLAS: 21 Q. The reporter put ties together with And in response you said, in defending your decision to 22 work with tobacco industry, you worked with tobacco industry, 23 correct? 24 25 A. We have taken $85 from Reynolds Tobacco to Xerox some paper for them when they had an issue with chromium when we Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 72 of 307 PAGEID #: 5073 Vol. 12 We charged them for it. I had a 1 were doing work for USEPA. 2 colleague in Philip Morris back in the whatever, back in the 3 late '90s that had a problem with this benchmark dose. 4 model that we can do real well and other people are just 5 learning now and we did that benchmark dose for him and we 6 charged him $550. 7 8 Q. It's a That's our tobacco money intake. We'll talk about some more of your tobacco money and other industry money. 9 A. Okay. 10 Q. But for you, your 550 bucks that you alleged is all you That would be great. 11 got, that's like Jesus hanging out with prostitutes and tax 12 collectors. 13 14 A. That's the quote. The reporter put two different disparate ideas together in that quote. 15 Q. So you say it's taken out of context? 16 A. I don't know what to say. 17 Q. I didn't think so. 18 A. Yeah. 19 Q. And you said in that article entitled favorite of 20 21 22 23 industry, we get criticized by everyone. A. There have been times where we've been criticized by everyone. Q. That's true, right? That's true. Sir, I want to show you P3232 in regard to my questions 24 before about how you became the one that was selected to do 25 this work that took two or three weeks or three or four weeks. 72 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 73 of 307 PAGEID #: 5074 1 Vol. 12 73 I want to show you a document from DuPont, an e-mail P1.3232. 2 MR. DOUGLAS: 3 THE COURT: May I approach, Your Honor? You may. 4 BY MR. DOUGLAS: 5 Q. Do you know Timothy Bingman? 6 A. I don't think so. 7 Q. You see here we have an e-mail from Timothy Bingman 8 August 21st, 2000 to Robert Rickard. 9 Rickard? Do you know Robert Bobby Rickard as he's referred to? 10 A. I think I do know him. 11 Q. He's sitting right here, right? 12 A. Yes, I do. 13 Q. How do you know him? 14 A. Society of Toxicology meetings. 15 16 17 How do you know him? Probably in the last four or five years I've gotten to know him from that. Q. You don't know him -- you didn't know him prior to four or five years ago, sir? 18 A. I don't think so. 19 Q. I'm sorry? 20 A. I apologize to Mr. Rickard. 21 Q. You see where it says prospective contractors for PFOA 22 criteria review. I apologize. See that? 23 A. Sure. 24 Q. And you see where it says Bobby/Jerry. 25 Dr. Rickard, do you call him Bobby? When you see Are you on first-name Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 74 of 307 PAGEID #: 5075 Vol. 12 1 basis? 2 A. I wouldn't do that, Mr. Douglas. 3 Q. So you haven't. So when you see him at the toxicology 4 meetings, or whatever organization you've seen him, you call 5 him Dr. Rickard? 6 A. Well, usually it's Society of Toxicology meetings it is 7 a first-name basis. 8 don't know if it's a doctor or not, I'll go with either first 9 name or mister or miss. 10 Q. If I don't know the person well, and I So you see it says as a follow-up to the go-do I had 11 from this morning's meeting I've talked to a number of 12 colleagues that use external toxicity peer review services to 13 see who they like as contractors. You see that? 14 A. Yes, I do. 15 Q. You do toxicity peer review, right? 16 A. Yes, we do. 17 Q. That's what we're talking about here in terms of the 18 19 20 21 work you did with the CATT team, right? A. That was actually more risk assessment development but we also do reviews. Q. And it says, one person from another chemical company 22 that used to work on the EPA's criteria office in Cincinnati 23 said that -- let's go back. 24 25 74 Sorry. While everyone had a few names to offer, talking about a potential outside contractor, right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 75 of 307 PAGEID #: 5076 Vol. 12 1 A. Yes. 2 Q. The common theme that emerged was that TERA, i.e. Mike 3 Dourson. Is it Dourson or Dourson? 4 A. Dourson is okay. 5 Q. The common theme that emerged -- let's underline common 6 theme -- that emerged was that TERA, Mike Dourson, was the 7 leading choice. You see that? 8 A. Yes. 9 Q. And so it goes on to say, one person from another 10 75 chemical company -- you see where I'm reading from? 11 A. Yes. 12 Q. So this is folks from chemical companies talking about 13 who's the go-to guy, who's good to use, what company should we 14 hire, right? Is that apparent from what I just read? 15 A. I haven't read it all yet. 16 Q. One person from another chemical company that used to 17 work in the EPA's criteria office in Cincinnati said that Mike 18 enjoys a very good reputation among the folks that are still in 19 the business of blessing criteria. 20 Can we underline blessing criteria? 21 That's sort of like that whitewashing term, right? 22 A. I wouldn't say that, but okay. 23 Q. You've heard the term blessing criteria, right? 24 A. Actually I haven't. 25 Q. It goes on to say, other added benefits besides the You do. Go ahead. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 76 of 307 PAGEID #: 5077 1 Vol. 12 blessing criteria -- you know what the word blessing means, 2 right? 3 A. Yeah. I think so. 4 Q. Okay. You know, Jesus blessed people, right? 5 A. Right. 6 Q. And it goes on to say, other added benefits that were 7 identified for TERA were their ability to put together an 8 independent peer review panel to oversee their findings; and, 9 two, their ability to assemble, a, quote, package, and then 10 sell this to EPA or whomever we desired. 11 See where I'm reading from? 12 A. Yeah. 13 Q. You sell things to the EPA, is that what you do? 14 A. No. 15 Q. So they got it wrong here when they were under the 16 impression that one of the reasons you should be hired is 17 because you're able to sell packages to the EPA. 18 wrong, you don't sell stuff? 19 A. Toxicology Excellence for Risk Assessment doesn't 20 advocate for any position. 21 got it wrong. 22 Q. We just do the science. You're correct. In the same way, sir -- 23 MR. DOUGLAS: 24 THE COURT: 25 They got it May I, Your Honor? Yes. So they 76 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 77 of 307 PAGEID #: 5078 Vol. 12 1 BY MR. DOUGLAS: 2 Q. You heard the Judge instruct the jury about this finding 3 of the science panel of .05 parts per billion being capable of 4 causing cancer, sir. 5 that you got it wrong. 6 integrity not only got it wrong, you got it wrong by 3,000 7 times higher than this .05 parts per billion. So they got this wrong in the same way Your great company, full of all this Not even close. 8 A. What's this scientific -- what's this science based on? 9 Q. I ask the questions, sir. 10 77 Do you have an answer for me? If you can't answer the question, I'll ask you another one. 11 A. What's the question, please? 12 Q. You got it wrong, sir. This number you came up with in 13 three or four weeks following this discussion with Dr. Rickard 14 about blessing criteria, your number of 150 parts per billion, 15 would you agree, mathematically speaking, is 3,000 times higher 16 than this number here, .05 parts per billion? 17 MR. MACE: 18 THE COURT: 19 22 Compound. Assumes facts. Let me see you at side-bar. You may stand by your seats, ladies and gentlemen. - - - 20 21 Objection. Thereupon, the following proceeding was held at side-bar: MR. MACE: The objection is that his question is 23 compound. 24 crudity that he's showing to the witness. 25 with respect to the compound that he had assumed the fact that It assumes facts. I also strongly object to the And particularly Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 78 of 307 PAGEID #: 5079 1 he had a discussion with Rickard. 2 before. Vol. 12 He never saw the e-mail It's an e-mail, not a discussion. 3 MR. DOUGLAS: 4 THE COURT: It's misphrased. I can rephrase it. That e-mail is coming in, I'm sure. 5 this witness never did say he ever saw it before. 6 that. 7 8 MR. DOUGLAS: But We're past I have no further questions on the e-mail. 9 THE COURT: I want to be clear. I don't like to harp 10 about this but there's sometimes I will weigh in but I'm not 11 going to cover everything that's objectionable. 12 the lawyers have to do on both sides. 13 frustrating where I sit. 14 15 MR. DOUGLAS: That's what Sometimes it's But I'm supposed to be neutral. Sometimes we can get the sense from the Court that maybe counsel should stand up and object. 16 THE COURT: That issue is number one. But here's the 17 bigger concern I have. 18 there. 19 the more he's being crossed as if he's an expert. 20 21 22 Bias is always fair game. No argument But the more we get into the findings and the science, MR. DOUGLAS: Well, he's been called here to testify that this was the best science available, this 150 -THE COURT: I get that. And the process up to this 23 point has gotten into how he was picked, how it was conducted, 24 that sort of thing. 25 But the more we get into him versus the science panel we're That's exactly what you're allowed to do. 78 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 79 of 307 PAGEID #: 5080 1 Vol. 12 79 going to be talking about his expertise and then we're going to 2 get into opinions is my fear. 3 MR. MACE: So I would caution you on that. And to correct his statement that the 4 direct was on best science available at the time when he did 5 the work in 2002. 6 He's way beyond the scope of direct. He was here for a very limited purpose. 7 MR. DOUGLAS: 8 this was not the best science. 9 should be free -- and it wasn't reasonable. 10 I'll address that. The whole point is This was junk science. I Therefore, for a company to believe the industry should -- 11 THE COURT: That's what the jury is going to have to 12 decide. 13 We're going to take a 15 minute break and you can start again. 14 - - - 15 Thereupon, the following proceedings were had in open 16 But at this point there's nothing pending right now. court: 17 THE COURT: 18 recess. 19 gentlemen. 20 We are right up to our 15-minute morning We'll see you back in 15 minutes, ladies and (A recess was taken at 10:30 a.m. until 10:47 a.m.) 21 THE COURT: 22 MR. DOUGLAS: Mr. Douglas, you may continue. Thank you, Your Honor. 23 BY MR. DOUGLAS: 24 Q. You discussed that your firm TERA has a website, right? 25 A. We have several, yes. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 80 of 307 PAGEID #: 5081 1 Q. Vol. 12 And it's had a website or several websites for years? 2 A. Yes. 3 Q. Take a look, since this came up during your questioning 4 on direct examination by Mr. Mace, I want to take a look at 5 some of that. 6 Can we have the 2012? 7 MR. DOUGLAS: 8 THE COURT: 9 10 80 May I approach? You may. BY MR. DOUGLAS: Q. Before we get to it, you recall you were asked some 11 questions on direct examination about the source of funding for 12 your company by Mr. Mace. 13 website, right? He produced a table that's from your 14 A. That's correct, yes. 15 Q. This is also -- what I've handed you is from your 16 website? 17 A. Yes. 18 Q. I want to put it up on the Elmo. 19 project time by sponsor. You see it's a 2012 You see where it says that? 20 A. Yes. 21 Q. So, first of all, it says, 2012 and it's 40 percent for 22 profit. 23 A. Yes. 24 Q. So we had, first of all, we had Dr. Siegel from the 25 You see that? Boston University School of Public Health here testified. If Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 81 of 307 PAGEID #: 5082 1 Vol. 12 81 somebody had suggested to him that your source of funding from 2 industry was only 1 percent, that would be completely and 3 utterly inaccurate, right? 4 A. I'm sorry, the question again? 5 Q. If somebody were to infer to our jurors that TERA 6 receives only 1 percent of its funding source from industry, 7 that would be misleading? 8 A. That's misleading. 9 Q. So some of your clients are Drinker, Biddle & Wreath. 10 You see that? 11 A. Yes. 12 Q. They're a law firm, right? 13 A. Could be. 14 Q. They are a law firm. 15 A. Sure. 16 Q. -- of that fact? 17 Will you take my representation -- And they're a law firm, sir, that defends chemical 18 companies and pharmaceutical companies in lawsuits just like 19 this. Did you know that? 20 A. Do I recall that? 21 head. 22 Q. You know what Amgen is, right? 23 A. I think it's a company that does pharmaceuticals. 24 Q. That's one of the sources of your funding is Amgen, a 25 pharmaceutical company? It's on your website. I don't recall that off the top of my Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 82 of 307 PAGEID #: 5083 Vol. 12 1 A. That's correct. 2 Q. That's what you're saying here on your website. You 3 look like you've never seen this before. 4 before? 5 A. I've seen this before. 6 Q. You helped put it together but you can't remember who Have you seen it I helped put it together. 7 Drinker, Biddle is, the very first list of the top of the 8 companies that provide 40 percent of your source funding; is 9 that right? 10 11 A. Do I have that correct? You've confused me, sir. I'm sorry. It's a company that we -- 12 Q. You're confused now, sir? 13 A. It's a company we did work for in 2012. 14 specific question about them and I don't recall those details. 15 Q. ACI. 16 A. Right. 17 Q. Is that an industry outfit? 18 A. It's industry related. 19 Q. Eli Lilly. 20 23 We've all heard of Eli Lilly. Another pharmaceutical company. 21 22 You asked me a NIPERA. A. What's NIPERA? Nickel producers -- Nickel Institute for -- something associated with the nickel institute. 24 Q. That's another industry outfit? 25 A. Yes. 82 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 83 of 307 PAGEID #: 5084 Vol. 12 1 Q. PPG? 2 A. I think they just refer to them as PPG Industries. 3 Q. They're another industry outfit? 4 A. Absolutely. 5 Q. And American Petroleum -- I want to take you through They're all industry. 6 some of the companies that your company has done work for and 7 one of them is the American Petroleum Institute, right? 8 A. That's correct. 9 Q. That's an industry organization, petroleum industry, 10 right? 11 A. That's correct. 12 Q. Let's do the 2013. 13 MR. DOUGLAS: 14 THE COURT: 15 BY MR. DOUGLAS: 16 Q. 17 May I approach, Your Honor? You may. Sir, you recognize what you've just been handed as another page from your website? 18 A. That's correct. 19 Q. That you helped put together, right? 20 A. Yes, I did. 21 Q. You'll see it's from 2013 for profit. 22 right? 23 A. That's correct. 24 Q. And again we see American Cleaning Institute, Amgen 25 37 percent, again, American Chemistry Council, Eli Lilly again and 83 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 84 of 307 PAGEID #: 5085 Vol. 12 1 Genentech. You see that? 2 A. Yes, I do. 3 Q. Genentech is a chemical company. 4 84 You saw Amgen. What is Genentech? 5 A. I think it's a pharmaceutical company. 6 Q. Sir, you've written in the peer review I think you said 7 you lost count after 100, right, contributed to the peer review 8 literature? 9 A. Yes. 10 Q. And do you recall an article entitled Peer consultation 11 on relationship between PAC profile and toxicity of petroleum 12 substances? 13 A. Yes, I do. 14 MR. DOUGLAS: 15 THE COURT: 16 BY MR. DOUGLAS: 17 Q. May I approach, Your Honor? You may. We talked before about conflicts of interest. Do you 18 recall that when you were asked by Mr. Mace, what is a conflict 19 of interest? 20 A. Yes. 21 Q. And sort of the same idea of disclosure is in 22 acknowledgments that would be in a peer review journal, if 23 there are any, you would list them, right? 24 A. Right. 25 Q. Could we put the title page, please? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 85 of 307 PAGEID #: 5086 Vol. 12 85 This is the article that I just asked you about, right? 1 2 A. Yes. 3 Q. And that's you, you authored this article? 4 A. Yes, sir. 5 Q. And if you just go to the second to last page, I think 6 it's the second to last, you'll see a section, conflict of 7 interest and below that, acknowledgments? 8 A. Yes. 9 Q. You see that? And it says, the American Petroleum 10 Institute, on behalf of the Petroleum High Production Volume 11 Testing Group, provided TERA with financial support for the 12 peer consultation meeting and preparation of the manuscript. 13 You see that? 14 A. Yes. 15 Q. You've written an article called The importance of 16 problem formulations in risk assessment: 17 involving dioxin-contaminated soil. 18 A. A case study You recall that? Yes, I do. 19 MR. DOUGLAS: 20 THE COURT: May I approach? You may. 21 BY MR. DOUGLAS: 22 Q. You have the article in your hand right now? 23 A. Yes, I do. 24 Q. I have it displayed on the Elmo. 25 Thank you. the lead author on this? And that's you, you're Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 86 of 307 PAGEID #: 5087 Vol. 12 1 A. Yes, I am. 2 Q. And if you go to, again, the second to last page. 3 Acknowledgment. 4 right? 5 A. Yes. 6 Q. The authors wish to thank Robert Budinsky of the Dow The authors wish -- you're one of the authors, 7 Chemical Company for his thoughtful comments on the early 8 drafts. 9 A. Yes, I do. 10 Q. By the way, you've received financial remuneration from You see that? 11 the Dow Chemical Company over the years, right? 12 has? 13 A. On this particular paper? 14 Q. Not asking about this particular paper. Your company Over the years 15 your company, TERA, has received financial remuneration from 16 Dow Chemical Company? 17 A. For several projects, yes. 18 Q. And you authored a piece called Crystallographic 19 Analysis and Mimicking offers Estradiol Binding: 20 Interpretation and Speculation. 21 22 A. Do you recall that article? I'd have to see that to make sure. That sounds like letters to the editor. 23 Q. Well, I misspoke. 24 A. Right. 25 Osimitz. 86 It's a letter to the editor. And that was by Tom, the lead author, Thomas Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 87 of 307 PAGEID #: 5088 Vol. 12 1 Q. Why don't I just give you a copy of it. 2 A. That works, yeah. 3 MR. DOUGLAS: 4 THE COURT: Thanks. May I approach? You may. 5 BY MR. DOUGLAS: 6 Q. Is that the article you had in mind? 7 A. Yeah. 8 Q. The letter. 9 That's the letter to the editor. Excuse me. Let's put that up on the Elmo. This is the title of the article, right, the letter? 10 A. Right. 11 Q. And that's you? 12 A. Right. 13 Q. Signing off as one of the people signing off on the 14 letter, right? 15 A. Yes. 16 Q. And it says, the work was supported by the North 17 American Flame Retardant Panel of the American Chemistry 18 Council which previously provided funding for travel expenses 19 and honoraria to the authors as members of NAFRA. 20 You see that? 21 A. Yes. 22 Q. So it would be another industry organization who has 23 supported or funded your work, right? 24 A. The TERA work, right. 25 Q. Just a moment. 87 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 88 of 307 PAGEID #: 5089 Vol. 12 1 A. No worries. 2 Q. You authored an article with a Dr. Samuel M. Cohen who 3 we're going to hear from in a little while called Linear 4 low-dose extrapolation for noncancer health effects is the 5 exception, not the rule. 6 A. Yes, I do. 7 MR. DOUGLAS: 8 THE COURT: 9 Do you recall that? May I approach? You may. BY MR. DOUGLAS: 10 Q. You have it in your hand, sir? 11 A. Yes, I do. 12 Q. First I want to ask about this fellow, Samuel M. Cohen. 13 You know him? You co-authored an article with him. 14 A. I know him. 15 Q. How long have you known Dr. Cohen? 16 A. I've known of him for probably a dozen years. 17 18 19 Working with him is infrequent. Q. Did you know that he is a retained expert for DuPont in this case? 20 A. No. 21 Q. Is that the first you're hearing of it? 22 A. Yes. 23 Q. He's going to take that very witness chair when you are 24 done? 25 A. You didn't know that? I didn't know that. 88 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 89 of 307 PAGEID #: 5090 1 Q. Vol. 12 89 And if you go to, I believe, again, the second to last 2 page, it might be the third to last page, under acknowledgments 3 and declaration of interest. 4 that you wrote or co-authored with Dr. Cohen, this paper was 5 prepared with financial support provided by the American 6 Chemistry Council to Gradco LLC doing business as Gradient. 7 You'll see it states, this paper You see that? 8 A. Yes. 9 Q. That's another industry company that's funded your 10 company TERA, correct? 11 A. Yeah. 12 Q. Right. 13 A. Right. 14 industry. The American Chemistry Council through Gradient. Gradient is a consulting group, it's not That's correct. 15 Q. We could go all day. 16 A. Sure. 17 MR. DOUGLAS: 18 THE COURT: I'll just do one more. May I approach, Your Honor? You may. 19 BY MR. DOUGLAS: 20 Q. You recognize what you are holding in your hand, sir? 21 A. Yes, I do. 22 Q. What is that? 23 A. A paper that was just recently published in the Journal 24 of Toxicology by my co-authors Rhian Cope who is now with the 25 Australian Authority for Medical Veterinary Sciences, Sam Kacew Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 90 of 307 PAGEID #: 5091 Vol. 12 1 2 up at the University of Ottawa and myself. Q. If you go to the acknowledgments in this article. It 3 states, this research is performed by scientists with the MPI 4 Research located on North Main Street in Mattawan, Minnesota 5 (sic). 6 Retardant Industry Panel of the American Chemistry Council 7 located at 700 Second Street in Washington, D.C. This research is sponsored by Brominated Flame You see that? 8 A. Yes, I do. 9 Q. That's another company, another industry organization 10 90 that you have worked with, sir; is that correct? 11 A. That's correct. 12 Q. We could go through many, many more of your articles and 13 there are dozens of different chemical industry, pharmaceutical 14 industry and other industries that you have worked with over 15 the years, right? 16 A. 17 18 That's correct. THE COURT: Counsel, let me see you at side-bar for just a moment. 19 You may stand by your seats, ladies and gentlemen. - - - 20 21 Thereupon, the following proceeding was held at side-bar: 22 THE COURT: We've got a juror pretty much completely 23 out. 24 We had said we've got eight, seven or six. 25 I'm thinking of -- I'm think about maybe excusing him. MR. PAPANTONIO: Which one is it? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 91 of 307 PAGEID #: 5092 1 2 Vol. 12 91 If you're looking at the front row, two in THE COURT: from the left. 3 MR. DOUGLAS: 4 THE COURT: 5 MR. DOUGLAS: Blue shirt. Yes. Judge, if I can be heard on this. What 6 I noticed is he's almost, I call it the hound dog effect. 7 almost as if he's sleeping and all of a sudden he'll pop up and 8 he'll start taking notes. 9 THE COURT: I noticed that, too. It's I can't tell if he's 10 completely out or not. 11 anybody to decide the case who hasn't heard the whole case. But I am concerned. 12 MR. PAPANTONIO: 13 THE COURT: We are very concerned about that. That's why I keep doing this. 14 working. 15 noticed it seems to have no effect. 16 17 None of us want It's not Usually with most people it shakes them up a bit. MR. MACE: What I have seen with jurors that they're still listening even though their eyes are closed. 18 THE COURT: 19 MR. PAPANTONIO: That's what we never know for sure. Judge, here's what I've noticed also. 20 There are two jurors that keep looking down at him when he's 21 asleep almost as if they want to wake him up. 22 THE COURT: 23 MR. PAPANTONIO: 24 THE COURT: 25 I Right. I noticed that, too. That's a very big concern of ours. We can address that maybe at 5:00 today but I'm thinking the other option would be for me to take him Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 92 of 307 PAGEID #: 5093 1 Vol. 12 in and just ask him is there anything we can do to help you, 2 can you bring some coffee in with you. 3 medicated, he's not doing this deliberately. 4 5 MR. MACE: him, Your Honor. 6 My guess is he's We have no objection to your talking to Obviously in a discreet manner. THE COURT: I'd do it privately unless there's an 7 objection I'd just bring him in. 8 MR. PAPANTONIO: Why don't we do that? Judge, can we talk about it a little 9 bit more before we do that? 10 THE COURT: 11 MR. PAPANTONIO: All right. But we have the same concerns. But 12 so what we've been trying to put everything together and what 13 we are observing is he keeps -- the other jurors keep looking 14 at him like wake up. 15 THE COURT: 16 MR. MACE: 17 Yes. That's my observation as well. I haven't observed that, for the record. have not observed that. 18 THE COURT: Thank you. 19 - - - 20 Thereupon, the following proceedings were had in open 21 court: 22 92 THE COURT: Mr. Douglas, you may continue. 23 BY MR. DOUGLAS: 24 Q. Just a few more questions. 25 A. Sure. I Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 93 of 307 PAGEID #: 5094 1 2 3 Q. Vol. 12 93 Sir, you would agree that risk assessment is an inexact science? A. Risk assessment is like a logic problem. It falls into 4 different disciplines of toxicology, epidemiology and other 5 disciplines, medical science. So it's imprecise. 6 Q. So you would agree that it's an inexact science? 7 A. Well, I think my views have changed a little bit over 8 9 10 11 12 13 14 15 the years but inexact is another way to say it, perhaps. Q. You've written an article entitled The inexact science of risk assessment and implications for risk management, right? A. Yes. That was back in the late '90s, I believe. is why I made the statement my views have changed somewhat. Q. I'm going to ask you about some of the views you've expressed in that article. A. Thank you. 16 MR. MACE: 17 THE COURT: Your Honor, may we approach? I'll see you again at side-bar. 18 You may stand if you wish, ladies and gentlemen. 19 - - - 20 Which Thereupon, the following proceeding was held at side-bar: 21 THE COURT: 22 MR. MACE: Mr. Mace. Counsel has been dancing over the line but 23 now he's clearly crossing it asking opinion testimony that he's 24 excluded me from getting into with him. 25 the door to this. If he wants to open Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 94 of 307 PAGEID #: 5095 1 THE COURT: 2 MR. DOUGLAS: Is this the article? Vol. 12 94 How do you respond? The same way I responded before the 3 break, Your Honor. 4 here to testify about reliable -- he asked the witness to vouch 5 for the reliability. 6 and therefore it goes to the reasonableness of the company 7 relying on it. 8 9 10 This witness was portrayed, was brought THE COURT: different study. Whether that question was objectionable I get that. But the trouble is this is a This is a general attack, not attack but it's a limiting as far as so it doesn't go to this particular study. 11 MR. DOUGLAS: I'll move on. 12 - - - 13 Thereupon, the following proceedings were had in open 14 court: 15 THE COURT: 16 BY MR. DOUGLAS: 17 Q. Mr. Douglas, you may continue. You received that award there you brought with you to 18 court today from the West Virginia Department of -- from the 19 West Virginia DEP? 20 A. Yes. 21 Q. May I see it, please? 22 A. Sure. 23 MR. DOUGLAS: 24 THE COURT: 25 If you would. May I approach? The deputy clerk would give it to you. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 95 of 307 PAGEID #: 5096 Vol. 12 - 95 1 BY MR. DOUGLAS: 2 Q. Did it come framed or did you have it framed? 3 A. I framed it. 4 Q. Did somebody ask you to bring it with you today? 5 A. Yes. 6 Q. Was that before or after you were subpoenaed to be here? 7 A. That was before. 8 Q. By the way, this subpoena is really just a charade for 9 the jurors, right? 10 A. I'm not sure what you mean. 11 Q. We talked before that you intended to come here even 12 before you were served with a subpoena. 13 testimony earlier? 14 A. You recall that I think the question was, I talked to Mr. Mace. I'll 15 try to get this correct. 16 about questions of what we had in our file and then subsequent 17 to that, Mr. Mace indicated that there might be a trial and the 18 trial would be somewhere in the range of the end of September 19 so would you please consider holding that week available. Talked to Mr. Mace several months ago 20 Q. And you did hold the week available? 21 A. The first three days available. 22 And then last week I found out it was going to be today. 23 Q. When did you find out it would be today? 24 A. Last week. 25 Q. Last week. So you've been planning to be here for quite Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 96 of 307 PAGEID #: 5097 Vol. 12 1 a while, right? 2 A. No. 3 Q. Well, you were planning to be here before you were even 4 served with the subpoena? 5 A. Yes. 6 Q. Weeks before, right? 7 A. I'm not sure what you mean by planning. 8 9 Q. Well, I think it's pretty simple but maybe I'm not being articulate enough. 11 week? 12 A. Right. 13 Q. Right? 15 16 17 I have it on my schedule. 10 14 You did tell us that you set aside this You planned on being -- you understand the word planned? A. It has -- planning is putting it on the schedule and preparing for it. Q. So you cooperated with Mr. Mace in setting aside time 18 three days out of this week to potentially testify at this 19 trial? 20 A. Yes. 21 Q. And you grabbed your little certificate here you got 22 96 from the DEP of West Virginia, right? 23 A. Yes. 24 Q. So you could show the jurors, hey, I got a certificate, 25 right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 97 of 307 PAGEID #: 5098 1 2 MR. MACE: THE COURT: Listen, about side-bar, the objection is sustained. 5 BY MR. DOUGLAS: 6 Q. Sir, were you told to bring your certificate? 7 A. I was not told to bring it. 8 9 I was -- it was asked if I would bring it and I said yes. Q. Sir, this has to do -- you were given this certificate 10 for the work you did when you came up with this 150 parts per 11 billion, right? 12 A. We got the certificate for the work we did to 13 scientifically evaluate the information and came up with a 14 scientifically-based number. 15 Q. Which was 150 parts per billion? 16 A. For oral exposure, that's correct. 17 Q. Which was 150 times higher than what DuPont had already 18 97 nature of these questions, the whole attitude. 3 4 Vol. 12 Your Honor, I object to the demeaning set at the time you did your work, right? 19 A. That may or may not be true. 20 Q. You know that other states and other offices of 21 Environmental Protection have done risk assessments over time 22 both before and after your work? 23 A. Yes. 24 Q. And being naturally and intellectually curious, I'm sure 25 you're aware of these other results, right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 98 of 307 PAGEID #: 5099 1 A. Vol. 12 98 I'm aware in general terms of these other results, yes. 2 Q. I want to share a few of them with you for a moment. 3 Okay? 4 A. Certainly. 5 Q. I'm going to -- do we have that slide? 6 Bobby Rickard, Dr. Rickard had a report in this case and 7 he summarized all of the other risk assessment values that have 8 been done over the years. I'll just ask you to assume that. 9 A. Okay. 10 Q. My question was, were you aware of that, that 11 12 Dr. Rickard prepared a report in this case? A. I'm not aware of that report. 13 MR. DOUGLAS: 14 THE COURT: 15 MR. MACE: With counsel's permission. Any objection, Mr. Mace? As long as it's clear this is not -- this 16 slide is not out of Dr. Rickard's report. 17 counsel created. 18 BY MR. DOUGLAS: 19 Q. It's something What this is, is the values were taken from 20 Dr. Rickard's report, which we'll establish when he testifies, 21 and summarized on this table that we did create, but taken from 22 his report. 23 24 25 So this is C-8 risk assessments over time for drinking water per Dr. Rickard's report dated January 27, 2015. THE COURT: Take that down while they're talking. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 99 of 307 PAGEID #: 5100 1 MR. MACE: 2 an error. 3 later. 4 But he can use it. THE COURT: 5 BY MR. DOUGLAS: 6 Q. 7 Vol. 12 99 Let me just note for the record, I noticed We'll just point out the error Put it back up. You see in 1988, DuPont had set a level of 1 part per billion. We talked about that, right? 8 A. Yes. 9 Q. So your number, and by simple math of 150 parts per 10 11 We talked about it. billion, would be 150 times higher than that, right? A. Well, you're making a comparison on the basis of one's 12 science generated and one is not. 13 is appropriate. 14 Q. I don't think the comparison Sir, let's just do the math and let the jury decide 15 what's science based. 16 150 times higher than 1 part per billion, correct? Your number of 150 parts per billion is 17 A. Again, sir, you're comparing different things. 18 Q. Sir, is 150 parts per billion 150 times higher than 1 19 part per billion? 20 A. That's easy to answer. 21 Q. Thank you. It is. And in 2002, Environ, a DuPont contractor, 22 had set a risk assessment of 14 parts per billion. 23 to ask you to assume that. I'm going Were you aware of that? 24 A. I don't believe so. 25 Q. And that would be, if my math is correct, 14 parts per Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 100 of 307 PAGEID #: 5101 Vol. 12 - 100 150 parts per 1 billion or -- let's do it the other way around. 2 billion is more than ten times higher than 14, right? 3 number you got was over ten times higher than Environ, right? 4 A. That's correct. 5 Q. Not even close, right? 6 A. Is that a question? 7 Q. Yeah. Those two numbers are not close. So the Something 8 that's ten times higher than another value is not close. 9 you're having trouble, I'll move on to another question. 10 11 12 A. If You're, again -- I don't know the basis of the Environ 2002 assessment. Q. They're all based on the same available information that 13 was out there that you based your -- that TERA found 150 parts 14 per billion, right? 15 MR. MACE: 16 THE COURT: 17 BY MR. DOUGLAS: 18 Q. Objection. Compound. Assumes facts. Rephrase the question. Let's just move on to Minnesota Department of Health. 19 Were you aware that they had formed a risk assessment and came 20 up with a value of 7 parts per billion in water? 21 A. I wasn't aware of that in 2002. 22 Q. But 150 parts per billion would be 20 times higher than 23 7 parts per billion, right? 24 A. If we're comparing just strictly numbers. 25 Q. Just numbers, sir? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 101 of 307 PAGEID #: 5102 1 A. 2 math. 3 Q. Vol. 12 - 101 And assuming nothing else, then, sure, you could do the It's easy. So the North Carolina Division of Water Quality found a 4 value limit of 2 parts per billion in water. 5 that? 6 A. No. 7 Q. And 150 parts per billion would be 75 times higher, sir, 8 than 2 parts per billion, right? 9 A. Simple math. 10 Q. We can go down the list. Were you aware of Simple math? You'll see Minnesota set a 11 limit of 1.5. 12 revisited the subject and lowered theirs to 1 part per billion. 13 And then were you aware of the Maine Center of Disease Control 14 set a value of .1? Again, in 2013, North Carolina Division of Water Were you aware of that, sir? 15 A. I'm not aware of that. 16 Q. Sir, did you know that the New Jersey Department of 17 Environmental Protection set a limit of .04 parts per billion? 18 .04, that's even lower than this .05 in 2006. 19 that. 20 A. I wasn't aware of that. 21 Q. Your value of 150 was a number, 150 parts per billion is 22 23 24 25 Did you know 3,500 times higher than the value of .04. THE COURT: Counsel, let me see you at side-bar. You may stand if you wish, ladies and gentlemen. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 102 of 307 PAGEID #: 5103 Vol. 12 - - - - 1 2 102 Thereupon, the following proceeding was held at side-bar: 3 THE COURT: So this was a process witness as I 4 understood, not an expert, and the process arguably would 5 include what did you do before you came up with these numbers. 6 But this is a 2002 report. 7 that play into this witness? 8 9 10 MR. DOUGLAS: of the methodology. How do the numbers that come after I think it still goes to the reliability The result is so far off from every other organization that has ever looked at it. 11 THE COURT: You mean all the ones. A number of these 12 were in existence before they completed their study. 13 issue with that. 14 But there are things that come after. MR. DOUGLAS: I think it still goes to the issue of 15 getting it right and how unreliable this was. 16 reasonable. 17 THE COURT: 18 standard. 19 process? 20 I have no It was not Then what he's testifying to is the I thought we agreed he was testifying as to the MR. DOUGLAS: It is about the process. What I'm 21 demonstrating is by virtue of the fact that his calculation was 22 so off the reservation is that it wasn't reliable and it wasn't 23 reasonable for the company to rely on it. 24 25 MR. MACE: It's so outlandish. I think he's opened the door pretty broad in this, Your Honor, and showing that slide I'm entitled to Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 103 of 307 PAGEID #: 5104 Vol. 12 1 refer back to that slide now. 2 THE COURT: Obviously. I wouldn't argue that point. 3 It's been used. 4 doesn't go to -- it doesn't go to -- it goes to the 5 reasonableness of the work done. 6 can consider. I'm inclined to tell the jury that this 7 MR. DOUGLAS: 8 THE COURT: 9 That's the only basis they That's what I'm offering it for. I'd also not go along if you tell me to. But it would be the defendant that's asking for it. 10 MR. MACE: 11 THE COURT: 12 MR. PAPANTONIO: 13 number two one time had to nudge. I'm not asking for it. Very good. 14 THE COURT: 15 MR. PAPANTONIO: One other thing. The juror next to I started watching. The nudging is probably a good thing. It is. It is. But I've been 16 thinking about the last conference, the last time we talked 17 about this. 18 have the Court say, you got to stay awake, because he doesn't 19 know where that comes from. 20 this, I literally saw -- 21 could do it. 23 it. 25 I think we're really prejudiced, both sides, to MR. MACE: 22 24 103 And if we can continue to monitor I think the courtroom deputy or somebody I have no problem if one of the court staff does THE COURT: I'd be more concerned about that. of all, my bailiff isn't here. First I know this fill-in bailiff Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 104 of 307 PAGEID #: 5105 1 Vol. 12 - 104 really well but that's not part of what they're used to doing. 2 I also thought maybe let them bring coffee in. 3 4 MR. MACE: good idea. We have no objection to that. I'd like to bring some myself, Your Honor. 5 THE COURT: 6 MR. PAPANTONIO: 7 has been missed. 8 9 Probably a It doesn't apply to anybody else. What I'm concerned about is how much I really am very much concerned. MR. MACE: I think Your Honor has been monitoring that pretty well. 10 THE COURT: 11 Sometimes it doesn't. 12 going to do anything. I'm trying to. Sometimes it works. We'll continue. Right now we're not 13 - - - 14 Thereupon, the following proceedings were had in open 15 court: 16 THE COURT: 17 BY MR. DOUGLAS: 18 Q. Mr. Douglas, you may continue. So what I'm getting at is the reliability of your work 19 that you did back then and, sir, this is not the first time 20 that your risk assessment was very different than other 21 agencies or governmental agencies for other chemicals; is that 22 right? 23 A. That's correct. We did something for the State of West 24 Virginia just last year and we lowered the number by eight 25 fold. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 105 of 307 PAGEID #: 5106 1 2 Q. Well, I'm talking about Alachlor. Vol. 12 - 105 Remember your company did work on Alachlor? 3 A. Alachlor, I'm sorry. 4 Q. Just a moment. 5 A. That's okay. 6 Q. Thank you. 7 A. It's not always easy. 8 Q. You remember that your company, TERA, reviewed studies 9 Acetochlor? Take your time. that suggested serious health risks with respect to drinking 10 water in Wisconsin as a result of chemicals manufactured by the 11 company Monsanto. 12 A. You recall that? I believe that was the acetochlor which is an herbicide 13 and its degradation products in water, in ground water. 14 think that's what you're referring to. 15 MR. DOUGLAS: 16 THE COURT: 17 MR. MACE: 18 THE COURT: 19 May we approach, Your Honor? Yes. You may stand if you wish, ladies and gentlemen. - - Thereupon, the following proceeding was held at side-bar: 22 MR. MACE: 23 MR. DOUGLAS: 24 MR. MACE: 25 May I approach, Your Honor? You may. 20 21 I So our objection, Your Honor, would be -I'm not going to offer it. I don't want you displaying it. another one of these media slander campaigns. This is Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 106 of 307 PAGEID #: 5107 1 THE COURT: Let's do this. Vol. 12 I'm going to be strict 106 2 about foundation. 3 he's familiar with it before we get into and no representation 4 of who did it. Ask him if he's seen this before, ask him if 5 MR. MACE: 6 THE COURT: Or what they said. Until there's some authentication. He's 7 not in the category, for example, of two or three DuPont 8 witnesses that I said could be crossed on things that they 9 maybe should have been aware of. 10 MR. MACE: He's not in that category. But, Your Honor, we'd object to how he used 11 the prior document like this repeating hearsay statements and 12 displaying them, even orally, to the Court. 13 THE COURT: Not necessarily saying I disagree. But 14 we're done with that. 15 But again, I encourage the adversarial process. 16 tell me if there's something that you believe is inadmissible. 17 MR. MACE: 18 MR. DOUGLAS: 19 20 gun. And we can bring it back on redirect. You have to I'm telling you now. Judge, just I think counsel jumped the I'm not going to offer this in evidence. THE COURT: But even if you don't offer it, if you 21 describe it to the jury, essentially testifying. 22 have any knowledge. 23 MR. DOUGLAS: 24 THE COURT: 25 MR. DOUGLAS: If he doesn't May I explain? All right. There's a table in here that talks about Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 107 of 307 PAGEID #: 5108 Vol. 12 I'm just going to use it to refresh his 1 the values. 2 recollection as to what his findings were and what the other 3 agencies were. 4 5 THE COURT: If he can identify it, has some idea, that's what we'll see. 6 MR. DOUGLAS: That's all. 7 - - - 8 Thereupon, the following proceedings were had in open 9 court: 10 BY MR. DOUGLAS: 11 Q. 12 13 14 15 107 Sir, I'm just going to ask you to turn to page 8. That's a table on page 8. A. Is this the latest copy of this? We talking about this document or not? Q. Sir, this document is not going to come into evidence. 16 There's a table I'd like to direct your attention to. 17 would just go to page 8. If you 18 A. Yes, sir. 19 Q. There's a chemical that is mentioned on that page in the 20 table. 21 A. I see six chemicals. 22 Q. The first one on the left. 23 A. Alachlor. 24 Q. And the one to the right is Alachlor ESA? 25 A. That's right. I have it. You see that? Which one? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 108 of 307 PAGEID #: 5109 1 Q. Vol. 12 Do you recall that you were asked to do a risk 2 assessment to come up with a determination of level of parts 3 per billion were for Alachlor ESA? 4 company? 108 By you, I mean your 5 A. We were not charged to do that, no. 6 Q. Do you see where it says Wisconsin? And in that matter, 7 Wisconsin determined a level of 20 parts per billion with 8 respect to this Alachlor ESA in the drinking water. 9 sound about right to you? Does that 10 A. That's what the table says, yes. 11 Q. Do you recall Minnesota came up with a value of 70 parts 12 per billion in its risk assessment advice? 13 A. That's what the table says, yes. 14 Q. And North Carolina came up with .4 parts per billion? 15 A. That's what the table says. 16 Q. And your company came up with 5,600 parts per billion? 17 A. That's not our number. 18 Q. That's not your number? 19 A. No, sir. 20 Q. That's wrong? 21 A. That's not correct. 22 safe water levels. 23 daily intakes. We were not charged to come up with We were charged to come up with acceptable 24 Q. And the value was 5,600 parts per billion? 25 A. That was determined by somebody else. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 109 of 307 PAGEID #: 5110 Vol. 12 1 Q. It's not your company? 2 A. This isn't the latest version of the document. It's not 3 in evidence. 4 it along with a press release and it's on our website if you 5 wish to see it. 6 Q. 109 We have an annotated version of this correcting Sir, your work was criticized. You talk about the 7 certificate but in fact the Little Hocking Water Association is 8 extremely critical of the work that you did, that TERA did in 9 this case; is that correct? 10 MR. MACE: 11 THE COURT: 12 THE WITNESS: 13 BY MR. DOUGLAS: 14 Q. No. 15 A. Thanks. 16 17 Objection, Your Honor. Objection is sustained. Are we still on this? You can put that down. MR. DOUGLAS: Those are all the questions I have for you now, sir. 18 THE COURT: Mr. Mace, you may redirect. 19 - - - 20 REDIRECT EXAMINATION 21 BY MR. MACE: 22 Q. How are you doing, Doctor? 23 A. Good. 24 Q. Some of us have had too much caffeine today. 25 A. It's good to be here. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 110 of 307 PAGEID #: 5111 1 2 Q. too long. 3 4 If we could bring up D613. report. 5 6 Vol. 12 - 110 Let me see if I can clear up a few things. Won't take So this is the CATT team Could you go over to dot 3, page 3. In terms of the contractor that you couldn't recall the name of, does this refresh your recollection? 7 A. Yeah. 8 Q. What was it? 9 A. The National -- that sounds right. 10 Q. National Institute for Chemical Studies? 11 A. Yes. 12 Q. So your testimony was West Virginia hired this 13 Thank you. Thank you. contractor. The contractor hired you? 14 A. That's my understanding from my recollection. 15 Q. Let's go down to the bottom of the page and I wanted to 16 get -- in regard to these three doctors from EPA. 17 threw some rocks at you, your team. 18 criticism that was ever made of any of those EPA scientists 19 that were on that CATT team? 20 21 A. Criticism from whom? Counsel Are you aware of any I'm not aware of any criticism of their participation on the CATT team. 22 Q. Or their work on the CATT team? 23 A. No. 24 Q. What about from the Agency for Toxic Disease Registry, 25 Not aware of any of that. Dr. Wheeler. Are you aware of anybody criticizing his work on Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 111 of 307 PAGEID #: 5112 Vol. 12 1 2 3 4 5 6 111 the CATT team? A. I don't have any -- I'm not aware of anything along those lines. Q. Do you recall this Ohio EPA observer who was at the meeting? A. Right. I hadn't met him before. 7 room now, I wouldn't recognize him. 8 there. 9 Q. If he walked into the There was an Ohio person Counsel asked you about a couple organizations, the 10 Center for Public Integrity and Inside Climate. 11 state or federal governmental agencies? Are those 12 A. I don't believe so. 13 Q. And in the same article that he showed to you he read 14 you the first half of your sentence. 15 everyone. 16 change the fact that TERA is neutral. 17 actually said? We get criticized by He didn't read the second half. But that doesn't Is that what you 18 A. Yeah. 19 Q. He showed you Defendant's Exhibit -- P1.3232 and there Absolutely. 20 was an implication at one point that you had a phone 21 conversation with Dr. Rickard before the CATT team was formed. 22 Did you have any conversation with Dr. Rickard before the CATT 23 team was formed? 24 A. Not that I recall. 25 Q. So you referred to this e-mail from 2000 and words I Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 112 of 307 PAGEID #: 5113 1 Vol. 12 don't think he emphasized, their ability to put together an 2 independent peer review panel. 3 together an independent peer review panel? 112 Is that what you did, put 4 A. 5 chosen. 6 I'd have to go back and sort that. In the case of the CATT team, I think folks were already I'm not so sure we actually put that panel together. 7 Q. Was that part of Dr. Staats from West Virginia? 8 A. I believe that was already prearranged. 9 Q. You talked about your mission statement on the website. 10 MR. MACE: 11 THE COURT: 12 BY MR. MACE: 13 Q. May I approach, Your Honor? You may. I've handed you or the clerk has handed you a 14 demonstrative aid that we haven't marked as an exhibit. 15 recognize that? 16 A. Yeah. 17 Q. What is that? 18 A. That's a page out of our TERA website. 19 Q. Could we bring that up, please? 20 Do you Let's bring up the first couple paragraphs. 21 TERA was founded on the belief that an independent 22 nonprofit organization can provide a unique function to protect 23 human health by conducting scientific research and development 24 on risk issues in a transparent and collaborative fashion and 25 communicating the results widely. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 113 of 307 PAGEID #: 5114 Vol. 12 - 113 Was that the attitude you brought toward your work on 1 2 3 4 5 the CATT team? A. That's the attitude we bring with all our work, including the CATT team. Q. You refer to your mission being protection of public 6 health by developing, reviewing and communicating risk 7 assessment values and analyses. 8 bear with the CATT team? 9 10 11 A. Right. Is that what you brought to We didn't do much in the way of communication but we certainly did do in the way of development. Q. Were you aware that the State of West Virginia had 12 enlisted Dr. Becker from Marshall University and a couple other 13 people on the communication aspect? 14 A. I don't recall those details. 15 Q. You didn't get involved in that aspect of it? 16 A. Not at all. 17 Q. In terms of TERA's core principles and values, if we No. 18 could go down to that. 19 transparency, collaboration. 20 you've tried to live by? 21 22 23 A. Absolutely. Honesty and integrity, independence, Those are the core principles On a daily basis. And we try to always improve it. Q. Over at the third page there's a reference in the last 24 paragraph here. 25 of Excellence. An award from the Independent Charities Seal What's that about? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 114 of 307 PAGEID #: 5115 1 A. Vol. 12 We were -- because we're a 501(c)3, a nonprofit 114 2 corporation, we're allowed to apply for the Combined Federal 3 Campaign. 4 money away. 5 code allows us to be considered a charity even though we're a 6 science work, we're a charity by that definition and so we were 7 accepted into the campaign and of course there's a lot of them 8 operating and we were awarded the seal of excellence, which was 9 quite surprising, but we were humbled to get it. 10 Q. So what that is, it's federal workers can give their They can give it to charities. So the 501(c)3 tax You refer to high standards of public accountability, 11 program effectiveness and cost effectiveness. 12 the consideration? That was part of 13 A. Oh, absolutely. 14 Q. You referred to an Office of the Inspector General USEPA 15 16 evaluation. A. Yeah. Right. You're familiar with that report? Very familiar. 17 MR. MACE: 18 THE COURT: 19 BY MR. MACE: 20 Q. May I approach the deputy, Your Honor? You may. Again, we're using this as a demonstrative aid so it 21 doesn't have an exhibit number on it. 22 that report? You're familiar with 23 A. Yes, I am. 24 Q. Would you bring that first page up? 25 What -- Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 115 of 307 PAGEID #: 5116 1 MR. DOUGLAS: 2 THE COURT: 3 Vol. 12 Your Honor, may we side-bar? You may stand by your seats, ladies and gentlemen, if you wish. - - - 4 5 6 Thereupon, the following proceeding was held at side-bar: MR. DOUGLAS: I don't understand how this is a 7 demonstrative issue not being shown to the jury. 8 what this is. 9 THE COURT: What's it connect to this? 10 MR. MACE: Counsel has impunged (sic). 11 MR. DOUGLAS: 12 MR. MACE: I don't know Impugned. Whatever he's done. Criticized the witness 13 and his organization. 14 criticized the witness and his organization and implied that 15 they are industry beholden and -- 16 THE COURT: 17 MR. MACE: 18 19 115 Plaintiffs' counsel has severely Here's TERA. So they're one of the people asked to consult on this for the EPA and reviewed -THE COURT: So they're in here. 20 don't want it displayed. 21 about it. 22 MR. DOUGLAS: 23 MR. MACE: 24 MR. DOUGLAS: 25 MR. PAPANTONIO: I get that. You just You don't care if there's questions It shouldn't be displayed. What if I just do page four? Just ask him. Just ask the question. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 116 of 307 PAGEID #: 5117 1 2 Vol. 12 - 116 The witness is here to testify, not to MR. DOUGLAS: read documents. 3 THE COURT: I mean I'd say you're about even on that 4 score. 5 unusual method for me. 6 that, you don't want any part of this in? And I have to tell you, both sides, that's been an 7 MR. DOUGLAS: 8 THE COURT: 9 I'm not used to that. No. But having said It's collateral. It's collateral. You can ask him. leave the document out at this time point. 10 - - - 11 Thereupon, the following proceedings were had in open 12 court: 13 BY MR. MACE: 14 Q. 15 Doctor, can you describe the document for us? What's that about? 16 17 We'll MR. DOUGLAS: Objection, Your Honor. I think that's the whole -- 18 THE COURT: 19 THE WITNESS: Overruled. You may answer. The Inspector General of USEPA was 20 looking at the Integrated Risk Information System process. 21 That's an agency unit and specifically the peer review within 22 it. 23 IRIS. 24 to get more influential, which is good, and it has these 25 external peer review panels, and there's lots of angst about Remember, when I was back at EPA our group helped develop It was mostly internal. Then I left EPA and it started Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 117 of 307 PAGEID #: 5118 1 Vol. 12 them from a variety of groups, not just industry. NGOs and 2 everybody, I suppose. 3 going to look at the process. 4 looked at the process and they pulled out examples of other 5 processes that were done well and they pulled out TERA as an 6 example comparability. 7 comparability with not only IRIS but also TERA and then four 8 other government organizations. 9 10 117 So the Inspector General said, we're And unbeknownst to us, they And there's a table that shows BY MR. MACE: Q. So is this one of the records you referred to when 11 counsel was questioning you with regard to some of the rocks 12 that had been thrown at TERA by some outside organizations and 13 you were saying, well, the Inspector General had -- 14 A. Yeah. 15 Q. In terms of the review that was done by the Office of That's it. Right. 16 Inspector General at USEPA, did they find that you had adequate 17 controls for conflict of interest and independent research to 18 identify potential panelist bias or conflict? 19 A. Yeah. We came across, in comparison, very good on that 20 issue and others as well. 21 appendix that's easy to see. 22 Q. And they summarize in a table in the Let's switch to a new topic. Counsel showed you a 23 couple documents. 24 focused on the 40 percent for profit and some of the companies 25 there. The 2012 project time by sponsor. And he But he ignored completely the 60 percent government Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 118 of 307 PAGEID #: 5119 Vol. 12 - 118 So could you tell us a little bit about what you 1 nonprofit. 2 did for the National Library of Medicine over the years? 3 A. Yeah. In that particular -- that was 2012. I think 4 what we were doing is we put together a database of risk values 5 called international toxicity estimates for risk. 6 available, has lots of different people's risk values on it, 7 including those have been through independent vetted peer 8 review by our group but also the Dutch and the Health Canada 9 and EPA's IRIS. 10 11 12 Q. Refers to NIOSH, National Institute of Occupational Safety and Health. A. It's freely What have you done for them over the years? In that particular case, NIOSH is a group that protects 13 American workers. 14 working with them every year, we were doing immediately 15 dangerous to life and health estimates. 16 got a worker goes into a place, there's a certain level in air. 17 If it's immediately dangerous to life and health, they're out 18 of there. 19 actually got an award for that that's listed somewhere. What we did that particular year, we've been So in other words, you We're determining those levels for NIOSH. 20 Q. That's enough. 21 A. Sure. 22 Q. I'm sorry to cut you off. 23 A. That's fine. 24 Q. Consumer Products Safety Commission. 25 We I talk too much sometimes. for them over the years? What have you done Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 119 of 307 PAGEID #: 5120 1 A. Vol. 12 Right now we're doing a series of work on Phthalate 119 2 ester exposure information and there was a review team, a team 3 that was put together for the Phthalate esters and it was a 4 National Academy of Science structure team and we did an 5 independent peer review for that team. 6 Academy of Science team, wanted independent peer review and 7 Consumer Products tagged us to do that for them. 8 9 10 Q. That team, National I guess the bottom line on this graphic is in terms of the amount of your funding that came from government nonprofit, was it more than half, 60 percent? 11 A. Oh, yeah. 12 Q. So focusing on the 40 percent, the for profit, would Those are, yeah. 13 that be taking things out of context with regard to the overall 14 work? 15 A. Well, we try to be neutral and work for all parties. 16 that's an important part of our work. 17 part of it of course misses the rest. 18 Q. 37 percent. 20 government nonprofit? But that year did you, as well, do 63 percent 21 A. Right. 22 Q. You talked about some of these. 24 25 Just focusing on one Then on the 2013 graphic, again, he focused on the 19 23 So Yeah. What about Health Canada, what have you done for them over the years? A. We do a lot of work for Health Canada. their independent peer reviews. We do a lot of They had something called Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 120 of 307 PAGEID #: 5121 Vol. 12 - 120 They whittle it 1 Domestic Substances List. 2 down, they write reports and we help review those reports. 3 That's one aspect. 4 done other smaller tasks for them, independent peer reviews. 5 Q. 6 Canada? 7 A. 23,000 chemicals. That's probably a large aspect. And maybe you should clarify for us. We've also What is Health Oh, it's -- Health Canada is the federal health agency 8 for Canada and that includes environmental protection for not 9 only humans but also ecological systems, birds, butterflies and 10 fish. 11 agencies like we do in the U.S. for occupational safety and 12 health and pesticide evaluations. 13 Q. And that's a large agency. And then they have separate So Health Canada would have, in Canada, the same 14 responsibility and even more than USEPA does in the United 15 States? 16 17 MR. DOUGLAS: It's leading. He's testifying. 18 THE COURT: 19 BY MR. MACE: 20 Q. 21 Objection. Rephrase. Does Health Canada, in Canada, do equivalent functions to what USEPA does in the United States? 22 A. I would say that's correct. 23 Q. While we're on the context point. We went over this 24 graphic in your direct examination, you'll recall, in terms of 25 your work different years. You recall that? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 121 of 307 PAGEID #: 5122 Vol. 12 - 121 1 A. Yes. 2 Q. And counsel chose to focus on two years that aren't even 3 on this page in 2012 and 2013. 4 issue for what you were brought here to testify about, the CATT 5 team, what was the percentage breakdown back then? 6 A. Yeah, it was 72/28. But back in the year that's at I think we also had a large USEPA 7 task, the World Trade Center disaster peer review. 8 that. 9 Q. Who was that done for? 10 A. We were approached by, this is a sad story of course. We did That was in that year as well. 11 The trade centers go down for the terrorist attack. 12 later, nine different government organizations had put together 13 a risk document and they invited us to -- asked us to do the 14 independent peer review. 15 think it was USEPA but I'm not sure. 16 17 Q. A year Exactly which agency asked us, I But any event, it was governmental agencies, not private industry? 18 A. Right. 19 Q. All right. Then in terms of the overall, are the actual 20 numbers consistent with your testimony that, on average, about 21 two-thirds of your work is government and nonprofit work as 22 opposed to industry work? 23 A. That's correct. 24 Q. Counsel showed you a graphic, again I apologize for my 25 marks. That's all I have. You made a comment something about Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 122 of 307 PAGEID #: 5123 Vol. 12 - 122 What was your comment about that? 1 comparing apples to apples. 2 Counsel said, aren't these numbers different than this number? 3 A. Yeah. You can do the quantification, of course, but 4 that's not how scientists compare things. 5 understand what goes into that number. 6 was the ADI. 7 how much water is drunk, do they partition it to food or soil 8 or something. 9 which is what we did, and then of course use a set assumptions 10 You have to What we did, per se, Different states have different assumptions of So there's other steps that go from the ADI, to get to the level using West Virginia's assumptions. 11 I'm not sure what the other groups have done so it's 12 hard to compare. 13 organizations out there, the Committee on Toxicology of the 14 United Kingdom has a value as well. 15 16 17 18 19 And I also know that there's other So it's just a matter of you need to understand the basis of the number before you start to compare one to another. Q. Is that, again, an example of how you have to keep things in context? A. Well, you do. There's some differences in the 20 acceptable daily intake amongst these groups. 21 different time. 22 science marches on and you should always incorporate the latest 23 science. 24 25 Q. It's 2014 versus 2002. They also are a So there had been -- In fairness -- so we have been using this calendar or timeline. Your work, sir, on this CATT team was done in 2002? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 123 of 307 PAGEID #: 5124 Vol. 12 1 A. Right. 2 Q. And counsel referred to this science panel report. 3 123 That came out in 2012, ten years later? 4 A. The science -- 5 Q. Science panel he referred to. 6 A. Okay. 7 Q. 2012. 8 A. I had trouble with that as a fact, but whatever. 9 Q. Counsel showed you this graphic that's got numbers after 10 Oh, that. It's a poster over here? Okay. that time that have other values, right? 11 A. Yeah. 12 Q. Yes. 13 There's '13 and '14. THE COURT: After 2012? Is that what you're -- I'll remind the jury, the numbers are 14 different don't have anything to do with the issues we've 15 talked about as far as general causation. 16 with the state of knowledge that DuPont had at the time. 17 BY MR. MACE: 18 Q. They do have to do Sir, I guess in closing, Mr. Douglas asked you about the 19 reliability of your work on the CATT team. 20 2002 on the CATT team reliable based on the state of the 21 knowledge at that time? 22 A. Was your work in Absolutely. 23 MR. MACE: 24 THE COURT: 25 MR. DOUGLAS: Thank you. Thank you. Nothing further. Recross, Mr. Douglas? Just a few. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 124 of 307 PAGEID #: 5125 Vol. 12 1 - - - 2 RECROSS-EXAMINATION 3 BY MR. DOUGLAS: 4 Q. 5 Just a few and we'll let you get back to Cincinnati. Despite all the accolades we've been hearing about and 6 all this stuff you put on your website, you're in control of 7 what goes on the website, right? 8 A. That's right. 9 Q. So to put that in context, it's your website. 10 11 12 13 124 Myself and my team. You helped create what it says, right? A. Well, we're a nonprofit. I don't own anything in the nonprofit. Q. I didn't ask anything about nonprofits. I'm asking you, 14 again, you participated in creating the website. 15 facts and figures, 40 percent industry, 60 percent nonprofit 16 and government, right? All those 17 A. It's our website. 18 Q. That's your website. 19 A. Yes. 20 Q. Despite all these accolades that we've been hearing You approved that, right? It's our website, right. 21 about, your certificate that you were asked to bring to court 22 and you obliged, somehow the folks at DuPont and other folks 23 who throw in -- other organizations, apparently, who are 24 throwing rocks at your company, have the impression that you're 25 in the business of blessing criteria, right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 125 of 307 PAGEID #: 5126 Vol. 12 1 A. You're asking me what? 2 Q. Some folks at DuPont, the folks at DuPont have the 125 3 impression, despite everything that we've heard from Mr. Mace, 4 that you're in the business of blessing criteria? 5 MR. MACE: 6 THE COURT: 7 Foundation. You're asking him to speculate about what people at DuPont knew. 8 9 Objection. MR. DOUGLAS: I'll rephrase. BY MR. DOUGLAS: 10 Q. You see where it says blessing criteria? 11 A. Yes, I do. 12 Q. Let's read the sentence again together. One person from 13 another chemical company that used to work in the EPA's 14 criteria office in Cincinnati said that Mike enjoys a very good 15 reputation among the folks that are still in the business of 16 blessing criteria. 17 A. You see where I read from? Yes, I do. 18 MR. MACE: 19 THE COURT: Objection. Foundation. Triple hearsay. I understand this will be coming in 20 anyway. 21 foundation for this witness to be able to answer a question 22 about this document. 23 BY MR. DOUGLAS: 24 Q. 25 Starting with that. But there has to be some My question, sir, is you are unaware of what the term blessing criteria means? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 126 of 307 PAGEID #: 5127 Vol. 12 1 A. I've never heard that phrase before. 2 Q. If I told you it means whitewashing science, does that 3 126 help you understand the phrase? 4 MR. MACE: 5 THE COURT: 6 BY MR. DOUGLAS: 7 Q. Objection. Move to strike. Objection is sustained. Don't answer it. You were asked just now on redirect about all these 8 folks that praised your work with the CATT team. 9 those questions? You recall 10 A. Some of them. 11 Q. But you do know, sir, that at the time you issued your 12 report, right after, the Little Hocking Water Association was 13 highly critical of your work, aren't they, the folks that were 14 drinking they water? 15 MR. MACE: 16 THE COURT: 17 Objection, Your Honor. Do you know anything about the report? 18 THE WITNESS: 19 THE COURT: 20 One moment. I don't think so. There has to be a foundation. At this point the objection is sustained. 21 BY MR. DOUGLAS: 22 Q. You don't recall, sir, that the screening level of 150 23 parts per billion established by your CATT team generated much 24 criticism and controversy when the results were released? 25 don't remember that? You Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 127 of 307 PAGEID #: 5128 Vol. 12 1 A. I don't think I'm aware of that. 2 Q. You did the work, sir. You took three, four weeks you 3 came up with this 150 number that is far different than any 4 number anybody else has come up with. 5 Little Hocking Water Association? 6 MR. MACE: 7 THE COURT: 8 Do you remember the Objection, Your Honor. Do you have any knowledge of the water association? 9 10 THE WITNESS: I don't have any recollection of knowing that. 11 BY MR. DOUGLAS: 12 Q. Did you ever hear of Little Hocking? 13 A. Little Hocking? 14 Q. Yeah. 15 A. I think we have Hocking Hills in Ohio but I'm not sure 16 127 about Little Hocking. 17 Q. Have you ever heard of Tuppers Plains? 18 A. I'm sorry? 19 Q. Ever heard of Tuppers Plains? 20 A. I don't believe so. 21 Q. Sir, at the end of the day, the value that you and your 22 CATT team came up with, 150 parts per billion, is numerically 23 higher than this figure here, .05 parts per billion. 24 agreed it's numerically higher, right? 25 A. I don't agree with what's on that chart. We've Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 128 of 307 PAGEID #: 5129 1 Vol. 12 - 128 And that's something that, again, is not THE COURT: 2 at issue. 3 not. The question is whether you agree with the number or 4 BY MR. DOUGLAS: 5 Q. Do you agree your number of 150 parts per billion is 6 3,000 times higher than this .05 parts per billion, right, 7 numerically speaking? Let's keep it simple. 8 A. I'm in the business of comparing like to like. 9 Q. Just answer my question, sir. 10 MR. MACE: 11 THE COURT: 12 There's not a response to the question. It's a straightforward question. 13 14 Objection to the question, Your Honor. THE WITNESS: If you can answer. There is a difference between the number 150 and the number 0.5, yes, there's a difference. 15 BY MR. DOUGLAS: 16 Q. It's 3,000 times higher, correct? 17 A. There's a difference between the numbers. The basis of 18 those numbers are not, at least that one, is not intelligible 19 to me. 20 Q. 21 So I have nothing more to say. This is completely unintelligible to you. That's what you're saying? 22 A. The basis of that number I don't understand. 23 Q. You're here to testify about how great your work was 24 that you did in reaching 150 parts per billion. 25 you said your work was reliable, right? That's what Just think about the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 129 of 307 PAGEID #: 5130 Vol. 12 1 129 question and answer only the question. 2 A. 3 number. 4 Q. Right. 5 A. All you have there is four lines. 6 And we have a report that establishes a basis of that THE COURT: 7 there. 8 it at that. 9 Well, there's a lot more than four lines And, Doctor, if you're not familiar with it, just leave That's not a number picked out of the air. THE WITNESS: 10 BY MR. DOUGLAS: 11 Q. I apologize. Would you agree if there were no emissions, if DuPont 12 didn't put this chemical C-8 into the drinking water of tens of 13 thousands of men, women and children that -- 14 MR. MACE: 15 BY MR. DOUGLAS: 16 Q. 17 did -- Objection, Your Honor. There would be no need to be any of the work that you 18 MR. MACE: 19 MR. DOUGLAS: 20 Objection. THE COURT: 22 MR. DOUGLAS: 23 THE COURT: 25 -- if there were no C-8 in the water in the first place. 21 24 Argumentative. Objection sustained. Those are all the questions I have. Thank you, Doctor. You may step down. Ladies and gentlemen, we'll be in recess for one hour. (A recess was taken at 12:00 p.m.) Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 130 of 307 PAGEID #: 5131 1 Vol. 12 - 130 WEDNESDAY AFTERNOON SESSION 2 SEPTEMBER 30, 2015 3 - - - 4 MR. MACE: 5 MR. DOUGLAS: 6 THE COURT: 7 Mr. Mace, call your next witness. Your Honor, may we go to side-bar? I'll see you at side-bar. if you wish, ladies and gentlemen. 8 9 You may stand, - - Thereupon, the following proceeding was held at side-bar 10 out of hearing of the jury: 11 THE COURT: 12 MR. DOUGLAS: What's the issue? I had a brief conversation with Mr. Mace 13 before we started just now, and I asked him if he had spoken to 14 the witness and let him know about the Court's ruling about 15 excluding the specific causation opinion. 16 17 THE COURT: You're way ahead of me. The next witness is -- 18 MR. MACE: 19 MR. DOUGLAS: Dr. Cohen. So it's excluded by the Court. And I 20 just want to make sure there's not going to be any fumbles. 21 When I asked Mr. Mace if he had spoken with the witness to make 22 sure there would be no -- I don't want any fumbles, and I 23 didn't get exactly a one hundred percent assurance. 24 THE COURT: I assume you've made it a point -- 25 MR. MACE: Absolutely. We carefully read your Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 131 of 307 PAGEID #: 5132 Vol. 12 1 131 orders, all four of them. 2 MR. DOUGLAS: That's different than what you said to 3 me, but I appreciate you saying that. 4 nervous. 5 THE COURT: 6 MR. BILOTT: I was getting a little Understood. One of the prior limiting instructions we 7 had asked about was the obesity limiting instruction. 8 believe the Court deferred on that because the issue with Dr. 9 Cohen was still pending and hadn't been resolved yet. I So 10 plaintiffs would still like a limiting instruction on obesity. 11 This is the prior one that was proposed. 12 THE COURT: 13 (Back in open court.) 14 THE COURT: 15 MR. MACE: 16 I'll look at it. Mr. Mace, now you may proceed. The defense calls Dr. Cohen to the stand. (Witness sworn.) 17 THE COURT: 18 MR. MACE: Mr. Mace, you may proceed. Thank you, Judge. 19 - - - 20 SAMUEL COHEN, M.D., Ph.D., 21 Called as a witness on behalf of the Defendant, being first 22 duly sworn, testified as follows: 23 DIRECT EXAMINATION 24 BY MR. MACE: 25 Q Good afternoon, sir. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 132 of 307 PAGEID #: 5133 Vol. 12 1 A Good afternoon. 2 Q Could you state your name for the record? 3 A Samuel Cohen. 4 Q And where do you live, sir? 5 A In Omaha, Nebraska. 6 Q What do you do for a living? 7 A I'm a physician and scientist. 8 Q Do you have a specialty? 9 A My medical specialty is pathology and my scientific 10 specialty is chemical carcinogenesis and toxicology. 11 12 132 THE COURT: I missed the first part. Your specialty is -- 13 THE WITNESS: The medical specialty is pathology and 14 specifically surgical pathology, and my scientific specialty is 15 chemical carcinogenesis and toxicology. 16 BY MR. MACE: 17 Q Dr. Cohen, if you can keep the microphone closer to your 18 mouth without banging into it, it would make it easier for us 19 all. 20 Doctor, have we asked you to review Dr. Bahnson's expert 21 report and his two depositions and his trial testimony 22 regarding the specific causation issues in this case? 23 A Yes. 24 Q Are you knowledgeable regarding risk factors for kidney 25 cancer and the relationship between obesity and kidney cancer? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 133 of 307 PAGEID #: 5134 Vol. 12 1 A Yes. 2 Q Have you analyzed those issues? 3 A Yes. 4 Q And have you reached opinions on those issues to a 5 133 reasonable degree of scientific certainty? 6 A Yes. 7 Q Before we get into the details of your analysis and your 8 opinions, let's spend a little bit of time on your personal 9 qualifications in order to talk to the jury on the specific 10 issues in this case. 11 12 13 Where do you currently work? A At the University of Nebraska Medical Center in Omaha, Nebraska. 14 Q What do you do there? 15 A I'm a professor of pathology and microbiology and also 16 of the cancer center. 17 teaching. I do surgical pathology, research and 18 Q Do you have an endowed professorship? 19 A Yes. 20 Q And what does that mean? 21 A An endowed professorship is both an honor and provides 22 financial support that I can use for my research laboratory. 23 It's specifically an oncology or cancer research. 24 Q Who provides the funding for that? 25 A Private donors. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 134 of 307 PAGEID #: 5135 1 2 3 Q Vol. 12 - 134 How long have you been a professor at the University of Nebraska? A Since 1981. 4 MR. MACE: 5 THE COURT: 6 BY MR. MACE: 7 Q 8 May I approach? Yes. Professor, Doctor, you've been handed Exhibit D1461. you recognize that? 9 A Yes. 10 Q What is that? 11 A It's my curriculum vitae. 12 Q Is that a true and accurate copy? 13 A Yes. 14 15 I don't know what date this is, but reasonably recent. Q 16 Let's -MR. MACE: 17 BY MR. MACE: 18 Q 19 20 Do Can you bring up 1461? Doctor, why don't you first take us through your education and training. A Okay. I went to the University of Wisconsin in Madison 21 for all of my degrees, beginning with my bachelor's degree in 22 medical sciences, graduated in 1967. 23 Ph.D. degree combined, with an M.D. in general medicine and the 24 Ph.D. in experimental cancer research, or oncology. 25 Then I did an M.D. and I then went to Saint Vincent Hospital in Worcester, Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 135 of 307 PAGEID #: 5136 1 Vol. 12 - 135 Massachusetts, for my residency in pathology which went from 2 1972 to 1975, became board certified in 1976. 3 Q You talked about experimental oncology. 4 A Cancer research. 5 Q And for your graduate work, what type of research did 6 7 What is that? you do? A My graduate research was on chemical carcinogenesis and 8 predominantly on a class of compounds called Nitrofurans, which 9 were used as antibacterial food additives or preservatives and 10 other anti-organism-type of drugs. 11 Q 12 in? 13 A What about your career? What is your career specialized My career is specialized in a combination of surgical 14 pathology with an emphasis predominantly on the lower urinary 15 tract, also including the kidney; did kidney pathology for a 16 number of years. 17 And then in research, it's been focused on chemical 18 causation of cancer as well as other toxic endpoints, again, 19 initially, with an emphasis on the bladder but ultimately in a 20 number of other tissues including the kidney and liver. 21 Q Are you board certified? 22 A I'm board certified in anatomic and clinical pathology. 23 Q What does that mean to be board certified? 24 A That's a national organization that basically certifies 25 that I have been properly trained and passed an examination Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 136 of 307 PAGEID #: 5137 Vol. 12 1 2 3 136 that qualifies me to practice pathology. Q Have you served on any national or international committees and panels for government agencies? 4 A Numerous ones. 5 Q Would you list some of them for us. 6 A A number of them for National Institutes of Health. 7 Also the National Toxicology Program and the National Institute 8 of Environmental Health Sciences which are institutes within 9 the NIH. 10 I've also served on a number of panels for the 11 Environmental Protection Agency, or EPA, and also for the Food 12 and Drug Administration. 13 Internationally, I've been involved with a couple of 14 organizations within the World Health Organization, including 15 the International Agency for Research on Cancer, and also the 16 International Program on Chemical Safety. 17 been a bunch of others here and there over the years both 18 internationally and for other national organizations. 19 20 Q And then there's You mentioned the International Agency for Research on Cancer. Is that known as IARC? 21 A Yes. 22 Q You're familiar with something called the International 23 Life Sciences Institute? 24 A Yes. 25 Q What is that? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 137 of 307 PAGEID #: 5138 1 A Vol. 12 That's a private, not-for-profit organization that 2 brings together scientists from government academia and 3 industry to work on specific issues related to predominately 4 through risk assessment and safety of chemicals. 5 Q What's been your involvement with that organization? 6 A I've been involved with it both on research programs, 7 pathology programs, as well as serving on the board of 8 trustees. 9 10 11 Q Are you familiar with an organization, the NTP Scientific Board of Counselors. A Yes. That's the National Toxicology Program which is 12 under the aegis of the National Institute of Environmental 13 Health Sciences. 14 but on the board of scientific counselors for a period of two 15 years more than a decade ago. 16 17 137 Q And I've served in a number of roles there, Have you been involved with the Food and Drug Administration and the FEMA expert panel? 18 A Yes. 19 Q What does that panel do? 20 A We evaluate the safety of flavor ingredients, and we're 21 essentially the organization that evaluates any applicant that 22 wants to sell an ingredient as a flavor, we have to approve it 23 first before it's allowed to be sold in the United States. 24 Q What is your role on that? 25 A I've been on the panel since 2002 and I'm currently the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 138 of 307 PAGEID #: 5139 Vol. 12 1 2 3 138 chair of the panel. Q Has the Food and Drug Administration, the FDA, consulted with you outside of the FEMA expert panel? 4 A Yes. 5 Q Can you give us an example or two on that? 6 A I've actually taught courses with them. I've served on 7 promotion and tenure committees for them. 8 most noteworthy was about seven or eight or nine years ago I 9 was called by the commissioner of the Food and Drug And then probably 10 Administration regarding the safety of a chemical called 11 melamine which had been an adulterant from China in a number of 12 pet foods that harmed cats and dogs. 13 It turned out that it had also been put into food that 14 had been given to pigs, chickens and fish which meant that it 15 was now in the human food supply. 16 asking five of us independently -- he wouldn't tell any of us 17 who the other ones were, that we independently review the 18 safety of melamine and its amount in the food supply and for 19 humans. 20 there was a safety concern, that they would have to pull over a 21 billion dollars of food off the market. And the commissioner was And if any one of us came to a determination that 22 Q Doctor, have you received any awards for your research? 23 A Yes. 24 Q Could you list a few of those? 25 A Most notably is the Arnold Lehman award from the Society Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 139 of 307 PAGEID #: 5140 1 Vol. 12 of Toxicology which is for achievements in risk assessment. 2 I've been awarded an award from the Japanese Cancer Association 3 for my work overall in chemical carcinogenesis. 4 in a couple of weeks, to receive the Lifetime Achievement Award 5 from the Society of Toxicologic Pathology. 6 7 Q And I'm about, Did you also receive a Lifetime Achievement Award from the Association for Environmental Health and Sciences? 8 A Yes, that was a couple of years ago. 9 Q Have you written any chapters in any books? 10 A I've written approximately 50. 11 Q Do you have any articles that have been published in 12 13 14 peer-reviewed scientific journals? A I've had over 350 articles published in peer-reviewed journals. 15 Q What does that mean, peer-reviewed scientific journal? 16 A These are scientific journals where when you submit a 17 manuscript to them, they send it out to at least two other 18 scientists to review it, which are basically peer reviewed, 19 sometimes more. 20 reviewers, you make revisions or it's accepted or rejected. 21 But eventually, if it's to be published, it has to pass the 22 concerns of those reviewers. And depending on the comments of the 23 Q Are you on any editorial boards? 24 A I currently am on four or five, plus I'm an associate 25 editor for another journal. 139 I served on a number of other Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 140 of 307 PAGEID #: 5141 1 Vol. 12 - 140 editorial boards and associate editorships over the years, and 2 I've peer reviewed for probably ninety to a hundred different 3 journals over the years. 4 Q What does it mean to be on an editorial board? 5 A An editorial board is both an honor. It's recognizing 6 outstanding individuals in those respected fields that the 7 journal is related to. 8 to providing reviewer -- reviews of manuscripts that come into 9 the journal. 10 And then it also basically commits you The associate editorship, in contrast, is where you 11 actually are the one that receives the article and then assigns 12 that to specific peer reviewers. 13 14 Q Your résumé, or CV, as I look at it here, Doctor, it's about 119 pages long? 15 A It sounds about right. 16 Q And you list a number of your articles, presentations, 17 awards you've received beyond what you just described to us? 18 A Yes. 19 Q Do you think it will be helpful to the jury to have that 20 to terms of evaluating your qualifications? 21 A I hope so. 22 Q Doctor, now that we know some of your qualifications, 23 let's talk about kidney cancer for a few minutes. 24 all, what type of kidney cancer did Mrs. Bartlett have? 25 A First of Mrs. Bartlett had what's called clear cell renal cell Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 141 of 307 PAGEID #: 5142 Vol. 12 1 2 3 141 carcinoma. Q Does that type of cancer commonly occur throughout the general United States population? 4 A Yes. 5 Q Approximately how much? 6 A Kidney cancer in totally is about 2 to 3 percent of all 7 the cancer deaths in the United States. 8 percent, probably 80 to 85 percent are the so-called clear cell 9 carcinoma-type. 10 11 Q And out of that 2 to 3 Was there anything atypical in Mrs. Bartlett's presentation? 12 A No. 13 Q Now, what grade and stage was Mrs. Bartlett's tumor at 14 the time it was removed? 15 A It was a Grade 1, Stage 1 tumor. 16 Q Can you explain to us what that means? 17 A Grade is essentially the extent of differentiation of 18 the tumor. 19 tissue it arose from. 20 normal kidney. 21 The lower the grade, the more similar it is to the For Grade 1, it will look a lot like the Stage, in contrast, is the extent of the disease. If 22 it's Stage 1, that means it's confined to the kidney. 23 hasn't spread beyond the kidney, and it also means it's smaller 24 than 7 centimeters in diameter, or about three inches. 25 Q It What's the significance of it being a Grade 1, Stage 1 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 142 of 307 PAGEID #: 5143 Vol. 12 1 2 at the time it was removed? A The grade and stage are what's used to help formulate 3 both the evaluation for prognosis, as well as for what 4 additional therapy, if any, needs to be done and how the 5 patient is going to be followed going forward. 6 Q Let's talk about each of those. First of all, in the 7 follow-up treatment, what does Grade 1, Stage 1 mean in terms 8 of follow-up treatment? 9 A Generally, Grade 1, Stage 1 is treated only with 10 surgery. It doesn't require chemotherapy and/or radiation 11 therapy. And it usually doesn't require additional surgery, 12 just the initial removal of the tumor itself. 13 14 15 142 Q And then you said - what? - prognosis? What does it have to do with prognosis? A Prognosis is essentially an estimate of what the 16 likelihood is for the recurrence of the disease or progression 17 of the disease. 18 is going to be cured with surgery and that it will not recur. 19 Q Grade 1, Stage 1 usually means that the tumor And that determination -- so the Grade 1, Stage 1, 20 you're aware that Mrs. Bartlett had her tumor removed. 21 sent to a pathologist who made that determination within a day, 22 if not the same day that her surgery occurred? 23 A Correct. It was I believe in the pathology report that I saw, 24 that she had a frozen section done at the time of surgery which 25 both gave the diagnosis, but, more importantly, is an Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 143 of 307 PAGEID #: 5144 1 Vol. 12 - 143 evaluation of what's called the margins, to make sure that the 2 surgeon had taken all of the tumor and there's no tumor 3 extending to the margin. 4 Q What's the significance of that? 5 A Basically, it tells the surgeon that he's gotten all of 6 the tumor and that he doesn't have to take more kidney tissue. 7 For the procedure that Mrs. Bartlett had, which was a partial 8 nephrectomy, that means he can preserve as much of the kidney 9 as possible. 10 Q So the day of the surgery, it's found out that it's 11 clear margins and Grade 1, Stage 1. 12 that time, the day of surgery, about her prognosis? 13 A What was known then at Probably at the time of frozen section, they wouldn't 14 have given a grade. 15 to the margin. 16 permanent sections paraffin-embedded and formalin-fixed, that 17 they would find out that it's Grade 1, because you would sample 18 more of the tumor. They would have said there's no extension On examination the next day when they have 19 Q 20 two. 21 know it's Grade 1, Stage 1, and you know the report from the 22 day, clear margins, you got it all, what does that tell you 23 right then about prognosis? 24 25 A Let's go to day two. I was on day one. Let's go to day Day two, once you have the permanent specimen and you Basically, it tells you that it's a patient who has been treated completely and has an excellent prognosis and is Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 144 of 307 PAGEID #: 5145 1 2 3 Vol. 12 - 144 unlikely to have a recurrence or progression of the disease. Q Now, in terms of the size of the tumor when it was removed, do you recall that? 4 A Yes. 5 Q What was it? 6 A I believe the largest diameter was 3.2 centimeters. 7 Q Now, do these types of Grade 1, Stage 1 renal cell 8 kidney cancer tumors tend to be slow growing or rapidly 9 growing? 10 A They tend to be very slow growing. 11 Q Sir, one of the materials that Dr. Bahnson referenced 12 that he refers to was the American Urological Association 13 Guideline for Management of the Clinical Stage 1 Renal Mass. 14 MR. MACE: 15 THE COURT: 16 BY MR. MACE: 17 Q May I approach, Your Honor? You may. Dr. Cohen, we've handed you what's called here the 18 Guideline for Management of the Clinical Stage 1 Renal Mass, 19 American Urological Association. 20 publication? Are you familiar with this 21 A Yes. 22 Q Do you consider it authoritative? 23 A Yes. 24 25 MR. MACE: For reference purposes, we're going to tag this as Defendant's Exhibit 2456. Could I have the ELMO, Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 145 of 307 PAGEID #: 5146 Vol. 12 1 please? 2 BY MR. MACE: 3 Q 4 So that's the document you've got in front of you there, Doctor? 5 A Yes. 6 Q I don't want to spend too much time on this, but let's 7 look at a couple parts of it. 8 the index, to page one. 9 approximately 54,000 new cases of kidney cancer will be If you could turn over, after In the introduction, it's estimating 10 diagnosed in the United States -- this was back in '08 -- and 11 that renal cell carcinoma, RCC, account for approximately 12 85 percent of the kidney cancers diagnosed in the U.S. 13 That's similar to the statistic you used? 14 A Yes. 15 Q All right. 16 etiology. Over to the next page, it's got a section on Can you explain to us what that term means? 17 A Etiology is another word for causation or cause. 18 Q There's some other phrases we'll talk about later. 19 Another phrase that's been used at trial is diagnosis. 20 diagnosis? 21 22 A What is Diagnosis is just a statement of what the disease is that you're dealing with. 23 Q Is that different than etiology? 24 A Yes. 25 145 Diagnosis is the disease. of the disease. Etiology is the cause Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 146 of 307 PAGEID #: 5147 1 Q Vol. 12 Under etiology, the American Urological Association 2 says, Tobacco use and obesity are the most consistently 3 identified risk factors for renal cell carcinoma, accounting 4 for about 20 percent and 30 percent of cases respectively. 5 Are you familiar with that statistic? 6 A Yes. 7 Q Do you agree with that statistic? 8 A It's in the same ballpark. 9 10 Q The next sentence has a statement about hypertension. Hypertension has also been demonstrated to increase the risk of renal cell carcinoma development. 13 14 Other publications have had estimates for a little bit higher, some a little bit lower. 11 12 Do you recognize hypertension as a risk factor for kidney cancer? 15 A Yes. 16 Q We were talking about the rate of growth. If you could 17 turn over to page 28. 18 page, it's got a section on summary of the treatment options 19 for the clinical Stage 1 renal mass, right? Do you see, sir, at the bottom of that 20 A Yes. 21 Q And the sentence that carries over, it says a meta -- 22 MR. DOUGLAS: 23 THE COURT: 24 25 146 Your Honor, may we approach? I'll see you at side-bar. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 147 of 307 PAGEID #: 5148 Vol. 12 1 2 3 - - Thereupon, the following proceeding was held at side-bar out of hearing of the jury: 4 MR. DOUGLAS: Judge, this is a completely unequivocal 5 opinion. 6 prior to -- I received some documents at 12:38 a.m. 7 lead to believe -- it was one new document. This document, first of all, wasn't exchanged with me 8 THE COURT: 9 MR. DOUGLAS: There was reference here to the rate of growth of tumors. 11 report about rate of growth. 12 a back door -- There is nothing whatsoever in the doctor's 13 MR. MACE: 14 THE COURT: 17 THE COURT: 20 Any rough idea where you are schedule-wise? MS. NIEHAUS: 19 And I would also say that this is Let me get his report. 16 18 So I was What's the opinion you're claiming is new? 10 15 147 I don't -Not so much with this witness but just overall when you think you might finish the defense case. MS. NIEHAUS: We're hoping by the end of this week or early next week. 21 THE COURT: 22 MS. NIEHAUS: 23 THE COURT: 24 MS. NIEHAUS: Of course. 25 MR. DOUGLAS: I was in mid-sentence. So we're on schedule. The cross-exam. Blame it on that if it's going to go over. And I'm Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 148 of 307 PAGEID #: 5149 Vol. 12 1 concerned -- 2 MR. MACE: 3 MR. DOUGLAS: 4 5 6 7 I was trying to get my materials. That's all right. So first of all, this is reference to rate of growth of -THE COURT: You've got to educate me. First of all, what does it have to do with rate of growth? MR. MACE: In terms of when her tumor began. It's a 8 rebuttal to Dr. Bahnson who said if, you will recall, I think 9 it was at least six months before but less than three years 10 before, which that raises an entirely new opinion. 11 his deposition, nowhere in his report -- 12 148 THE COURT: I'm still not understanding. 13 expect him to say? 14 MR. MACE: 15 THE COURT: 16 MR. MACE: 17 MR. DOUGLAS: Nowhere in What do you I'm permitted to -What do you expect him to say? More than ten years. This is a back door way of giving a 18 specific causation opinion. 19 If you do the math, it will take him back ten years, at least. 20 This is -- you don't say the words but the conclusion is -- 21 22 23 THE COURT: One plus one equals no causation. Her use of the water goes back to '81 or '83, right? MR. DOUGLAS: I appreciate that, but I don't think 24 it's a no-harm-no-foul-type of argument. 25 years of exposure. It's the cumulative It's been excluded on specific causation. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 149 of 307 PAGEID #: 5150 1 THE COURT: 2 report that gets -- Hang on. 3 MR. MACE: 4 MS. NIEHAUS: 5 MR. MACE: It's a long report. MR. DOUGLAS: THE COURT: 11 MR. DOUGLAS: 12 THE COURT: 14 15 16 17 18 19 20 It is certainly not cited in that Let me see that. It continues here, and .28. It's the growth rate. MR. DOUGLAS: Yes. If you do the math -- and he will give a specific causation opinion. THE COURT: No. He's not going to give a specific causation opinion. MR. DOUGLAS: I'm afraid that putting the two facts out there -THE COURT: This would go to duration of exposure for the cancer. 22 into a differential diagnosis. 23 MR. DOUGLAS: 25 That's what you're focused on? 21 24 I should be able to report. 10 13 I know we've cited it in some briefs, I find it. 8 9 I know he says that. believe, and discussed it at his deposition as well. 6 7 Vol. 12 - 149 Do you have anything here in his I see that issue. But I don't see how it leads us I think specific causation does depend on cumulative years of exposure. THE COURT: I think that's important. Your doctor testified to something Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 150 of 307 PAGEID #: 5151 Vol. 12 1 different. 2 Why wouldn't this be rebuttal? MR. DOUGLAS: Because this is -- this goes to specific 3 causation, first of all. 4 He's free to disagree, but this is -- 5 6 MR. BILOTT: THE COURT: This particular witness is one that Wait. Right now all I'm hearing is the rate of growth. 9 10 And second of all, he can disagree. cannot rebut any specific causation argument. 7 8 MR. MACE: He's rebutting what their doctor said on the stand, which he talked about rate of growth. 11 THE COURT: Let's do this. You question him by: 12 There's been testimony previously that says X. 13 belief? 14 Is that your And the jury will get the idea that there's a 15 difference. 16 that's it; not talking about anything beyond that. 17 you're entitled to a limiting instruction. 18 you, and I'll ask your opinion. 19 150 And we're only talking about rate of growth, There's no easy way to say this. I do think Let me read it to But this is how I'm 20 thinking, a little bit of what you offered, the first sentence. 21 You may hear evidence in this case relating to an alleged 22 relationship between obesity and kidney cancer. 23 understand that no expert or other witness in this case is 24 actually offering any medical opinion that obesity, and not 25 C-8, was the specific cause of Mrs. Bartlett's kidney cancer in But you should Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 151 of 307 PAGEID #: 5152 Vol. 12 1 151 this case. 2 Mrs. Bartlett has offered medical opinion testimony that 3 her kidney cancer was caused by C-8 in the drinking water. 4 evidence relating to obesity as potential cause of her kidney 5 cancer may be considered only as an attempt to discredit the 6 evidence supporting her claim that C-8 caused her kidney 7 cancer. 8 Any problem with that? 9 MR. MACE: 10 THE COURT: 11 We preserve all of our prior objections. Sure. MR. BILOTT: 13 THE COURT: (Nods head.) At this point you're not in obesity. MR. MACE: 16 THE COURT: Yes, sir. When we come back to that, I'll come back to you. 18 MR. MACE: 19 THE COURT: It tends to be slow going. Again, to make sure it's rebutted, 20 indicate there has been a conflict in the testimony by the 21 other doctor. 22 23 MR. DOUGLAS: Is he permitted to cite to this statistic that's been disclosed? 24 25 Are we coming back to that? 15 17 I mean, where we are right now, does that satisfy you? 12 14 Any THE COURT: issue? Yes. Well, what about the disclosure Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 152 of 307 PAGEID #: 5153 1 MR. MACE: Vol. 12 Because Dr. Bahnson acknowledged this 2 statistic as being an accurate statistic in his testimony and 3 he's in rebuttal to Dr. Bahnson's testimony. 4 THE COURT: Not if Dr. Bahnson says the same thing. 5 That wouldn't be rebuttal. 6 MR. MACE: 7 Dr. Bahnson knows of this data and didn't do the calculation. 8 9 MR. DOUGLAS: If anything, it tells us the doctor was aware of the issue and had every opportunity to cite whatever 10 statistic he wanted to cite. 11 THE COURT: 12 of growth. 13 The rate of growth -- limited to the rate Thank you. MR. MACE: And the article. All right. 14 (Back in open court.) 15 THE COURT: 16 BY MR. MACE: 17 Q Thank you for your patience. Doctor, a little foundation before we get back to the 18 document. 19 Dr. Bahnson's expert report. You've read -- we have asked you to read not only You've read that? 20 A Yes. 21 Q You've read both his depositions, his 2014 deposition 22 last summer and his 2015 deposition earlier this year? 23 A Yes. 24 Q And you've also reviewed his transcript from the trial 25 152 about a week ago when he testified in front of the jury? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 153 of 307 PAGEID #: 5154 Vol. 12 - 153 1 A Yes. 2 Q Do you recall that as part of that testimony in front of 3 the jury, he talked about rate of growth? 4 A Yes. 5 Q And he made some comments - correct me if I'm wrong, 6 that in his view, the tumor had to start at least six months 7 before it was removed, but he thought probably less than three 8 years before it was removed. 9 10 11 12 A Do you remember that testimony? I don't remember the exact numbers, but that sounds about right. Q And do you agree or disagree with his estimate of how far back the tumor started? 13 A I would disagree. 14 Q Now, as part of that testimony in court, do you recall 15 that Dr. Bahnson was referred to this publication, the 16 Guideline for Management of Clinical Stage 1 Renal Mass, 17 American Urological Association? 18 A Yes. 19 Q He said that was one of the things he references, that 20 body of work from time to time? 21 A Yes. 22 Q And you've already testified you consider that to be an 23 24 25 authoritative source? A Yes. MR. MACE: So we have it on the screen. So, if you Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 154 of 307 PAGEID #: 5155 Vol. 12 - 154 If you could bring 1 could bring up -- we're between two pages. 2 up the bottom of page 28 and top of page 29, next to each 3 other. 4 BY MR. MACE: 5 Q Where we were is the carryover sentence that says, A 6 meta-analysis of this literature demonstrated an average growth 7 rate of only 0.28 centimeters per year? 8 A Yes. 9 Q First of all, can you tell us what a meta-analysis is? 10 A It's basically a statistical analysis of several studies 11 where you put the total populations together and do an overall 12 evaluation. 13 Q And with a tumor that measured 3.2 centimeters and a 14 growth rate at this number that Dr. Bahnson agreed with, when 15 would that indicate that Mrs. Bartlett's tumor started? 16 A At a growth rate of .28 centimeters per year, this would 17 translate out to a tumor that's 3.2 centimeters in diameter 18 over ten years, so about 11, 11 and a half. 19 20 Q Doctor, we asked you to analyze Dr. Bahnson's specific causation opinions, true? 21 A Yes. 22 Q Let's get one thing very clear. Just because a 23 substance is capable of causing kidney cancer, does that 24 necessarily mean that it actually caused it in a specific 25 individual? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 155 of 307 PAGEID #: 5156 Vol. 12 1 A No. 2 Q Is there an example you can use to help us understand 3 that? 4 A 155 I think probably the easiest example to keep in mind is 5 a substance called aflatoxin, which is a well-known and potent 6 liver carcinogen that's present as a contaminate of peanut 7 products. 8 so it turns out that it's present in all peanut products. 9 it's peanuts, peanut butter, anything that contains peanuts We're able to analyze it down to very small amounts 10 will contain some aflatoxin. 11 consider and the FDA now considers to be a safe level even 12 though we know this is a substance that can produce liver 13 cancer in humans. 14 Q So We can set a level that we Let's focus on one of the other opinions that 15 Dr. Bahnson gave. 16 obesity should be considered a risk factor for kidney cancer? Did you read his opinion about whether 17 A I did read that, yes. 18 Q Did you see his testimony that, in his view, obesity is 19 not a risk factor for kidney cancer? Did you see that opinion? 20 A I did see that, yes. 21 Q Do you agree or disagree with that opinion? 22 A I disagree. 23 Q Do you have knowledge in that area? 24 A I have extensive knowledge in that area. 25 Q Doctor, in addition to your training and your general Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 156 of 307 PAGEID #: 5157 1 Vol. 12 knowledge, are you familiar with the specific scientific 2 literature on the relationship between obesity and kidney 3 cancer? 156 4 A Yes. 5 Q Doctor, because of your education and training and over 6 your decades of experience with cancer research and your 7 teaching and your clinical work, are those the types of studies 8 that you regularly review and analyze and use in your work? 9 A I've been involved with kidney both from diagnostic 10 point of view, clinical point of view, as well as basic 11 research, and I'm quite familiar with a lot of the literature 12 on causation of tumors including diabesity. 13 14 Q In terms of toxicological information, epidemiological information and other scientific studies? 15 A Yes. 16 Q Do you have experience in the design and interpretation 17 of epidemiology and other scientific studies? 18 A Yes. 19 Q Have you been a member of panels that have evaluated 20 21 epidemiologic methodology? A Yes. 22 MR. MACE: 23 THE COURT: 24 BY MR. MACE: 25 Q May I approach, Your Honor? You may. Dr. Cohen, you've been handed Exhibit D2029. Do you Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 157 of 307 PAGEID #: 5158 Vol. 12 1 recognize that? 2 A Yes. 3 Q Is that one of the articles you reviewed in connection 4 5 with your work in this case? A Yes. 6 7 MR. MACE: Can we bring up the first page of 2029, please? 8 BY MR. MACE: 9 Q 10 First of all, let's talk about the date of this. could go down to the bottom. If we So this is from 2004, Doctor? 11 A Yes. 12 Q And let's go back up to the title. Overweight obesity 13 and cancer, epidemiological evidence and proposed mechanisms. 14 That's one of the articles you reviewed? 15 A Yes. 16 Q In terms of the authors, if we could go to the lower 17 left corner. 18 affiliated with? 19 A Where would the authors -- who are they The first author is from the American Cancer Society, 20 one of their buildings in Atlanta. 21 the International Agency for Research on Cancer that I 22 mentioned earlier that I served on some of their panels. 23 two major organizations that are involved with both cancer 24 research as well as the clinical aspects. 25 157 Q The second author is from It's Let's get back to the body of it and the paragraph on Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 158 of 307 PAGEID #: 5159 Vol. 12 1 158 the bottom here. 2 It states, It has been estimated that 15 to 20 percent 3 of all cancer deaths in the United States can be attributed to 4 overweight and obesity. 5 Is that a statistic you're familiar with? 6 A Yes. 7 Q Do you agree with that statistic? 8 A For 2004, that was a reasonable estimate. 9 Some people would put it quite a bit higher than that now for 2015. 10 Q 11 page. 12 going to try to do them in chronologic chronology. 13 summary is, IARC, International Agency for Research on Cancer, 14 has determined that based on results from epidemiological 15 studies, people who are overweight or obese are at increased 16 risk of developing several cancer types including -- and it 17 lists a number -- but renal cell cancer, right? Let's good over to the summary at the top of the next We're going to get to some of the later articles. I was So the 18 A Yes. 19 Q Do you agree with that statistic? 20 A Yes. 21 Q Then on the bottom right, the bottom right paragraph, it 22 talked about the IARC working group, and their report concluded 23 avoidance of weight gain reduces the risk of developing 24 cancers. 25 Do you see that? And it lists a number, but, again, kidney renal cell. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 159 of 307 PAGEID #: 5160 Vol. 12 1 A Yes. 2 Q Do you agree with that statistic? 3 A Yes. 4 5 MR. MACE: table. 6 7 Let's get over to page -- with a summary It's page dot four. If you could bring up the table. BY MR. MACE: 9 Q So this is table one, obesity-related cancers, and it lists a number of them but it includes kidney renal cell, true? 11 A Yes. 12 Q What are these columns? 13 14 Go ahead and get the footnote. 8 10 There's two different columns. A Relative risk with a BMI. Can you explain those to us? The first one is a relative risk for an individual 15 that's overweight which is considered a BMI of 25 to 30. 16 obesity is greater than 30. 17 notice it goes up. 18 essentially a dose response for obesity. 19 159 That's the second column. And You'll This is one of the pieces of evidence of And then the next two columns are essentially an 20 estimate of the attributable risk, or the percentage of the 21 population that of all the kidney tumors, renal cell tumors in 22 the United States, one could attribute approximately 42 percent 23 to obesity. 24 25 And the last column is in Europe, the EU, European Union, that approximately 30 percent could be attributed to Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 160 of 307 PAGEID #: 5161 Vol. 12 1 2 3 obesity. Q So that's referring to this down here the percentage of cases attributable to overweight and obesity? 4 A Correct. 5 Q And these numbers over here, we haven't talked about, 6 7 160 the 1.5 and the 2.5. A What are those? Basically, it says that for an individual that's 8 overweight, BMI of 25 to 30, that they have a one-and-a-half 9 times risk of developing kidney cancer compared to somebody who 10 is of normal weight, BMI below 25. 11 30, that is then everyone over 30, so 30 onto whatever the 12 highest number is, it's two-and-a-half times risk compared to 13 the non-overweight. 14 Q All right. For someone with a BMI over And underneath the table in the right-hand 15 column, the first full paragraph, it says, Studies of 16 populations worldwide have revealed that the risk of kidney 17 cancer, specifically renal cell cancer, is 1.5 to 3 times 18 higher in overweight and obese individuals than in men and 19 women of normal weight. 20 Is that a statistic you're familiar with? 21 A Yes. 22 Q Do you agree with that? 23 A Yes. Again, I think it's important to keep in mind that 24 the 3 refers to obesity, which would be anyone over a BMI of 3. 25 There are other studies that show that the higher the obesity, Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 161 of 307 PAGEID #: 5162 Vol. 12 1 2 161 the higher the overall risk is. Q It says, Most studies reported a dose-response 3 relationship with increasing weight or BMI. 4 First, do you agree with that? 5 A Yes. 6 Q What is the significance of that? 7 A That's what I was just saying. Basically, the higher 8 the BMI over 30, the greater the risk of developing kidney 9 cancer. So it gives you a very nice dose response that says 10 the higher your BMI, the higher your risk of developing kidney 11 cancer. 12 13 Q with increasing BMI was greater in woman than in men. 14 15 16 Then it says in several studies, The increase in risk What's that talking about? A Basically, some studies have found that the overall risk as you increase BMI is greater in women than in men. 17 MR. MACE: 18 THE COURT: 19 BY MR. MACE: 20 Q 21 May I approach, Your Honor? You may. Doctor, we've handed you Exhibit D2032. Do you recognize that? 22 A Yes. 23 Q Is that one of the studies you analyzed in connection 24 25 with your work in this case? A Yes. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 162 of 307 PAGEID #: 5163 1 Q Vol. 12 Do you consider that an authoritative article? 2 A Yes. 3 4 162 This was a very large study that was done in Europe involving nearly 350,000 people. Q I think I neglected to ask you. Doctor, the article we 5 were just looking at, do you consider that one an authoritative 6 article? 7 A Yes. 8 Q Let's bring the first page of that up. 9 It's a review article. focus on the date of it. This is a primary article. And again, let's So this is in 2006? 10 A Yes. 11 Q And then the title, again, relates to body size and the 12 risk of renal cell carcinoma? 13 A Yes. 14 Q Let's get down to the summary in the bottom left. It 15 says, Among women, an increased risk of renal cell carcinoma 16 was conferred by body weight, relative risk and highest versus 17 lowest quintile, 2.13, 95 percent confidence interval. 18 19 Can you translate that for us? A What that says is the highest group of BMI compared to 20 the lowest BMI had essentially a twofold risk of developing 21 renal cell cancer. 22 statistical analysis where 95 percent of the cases would have 23 fallen in the range stated there, 1.16 to 3.9. 24 statistically they can't sort out whether that was 1.16 or 3.9 25 times the risk. Confidence interval is just basically the The average was 2.13. So Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 163 of 307 PAGEID #: 5164 1 2 Q Vol. 12 - 163 There is a statement in the next column I wanted to ask you about, over here. 3 Recent data suggests that the increasing prevalence of 4 obesity may at least partially be responsible for rising rates 5 of renal cell kidney cancer. 6 Now, in your review of Dr. Bahnson's trial testimony, 7 did you see his comments on the incidence, the rate of increase 8 or leveling off or decrease of kidney cancer and obesity? 9 you see his comments on that? 10 A Yes. 11 Q Did you agree with his comments on that? 12 A No. 13 14 15 16 Did I think he, one, factually was incorrect, but his interpretation of the data was quite a ways off the mark. Q Let's take those one at a time. In terms of factually, what do you believe the facts to be? A In the United States, the incidence of renal cell 17 carcinoma has been increasing until about the last five or six 18 years, and then it's stabilized at that point. 19 He indicated that it had actually decreased over the 20 last few years. 21 of renal cell carcinoma, and that's primarily due to the fact 22 that we just have better treatments now so people are living 23 longer. In reality, what's decreased is the death rate 24 Q Catching it earlier and treating people? 25 A And even those caught later were having more success in Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 164 of 307 PAGEID #: 5165 Vol. 12 1 2 3 4 prolonging life. Q So you had a factual dispute. interpretation you disagreed with. A And then you said the Tell us about that. He was saying this would be evidence against obesity 5 being related to renal cell carcinoma because the obesity has 6 continued to increase so that the incidence of renal cell 7 carcinoma should continue to increase. 8 9 164 There's two factors that counter that. One is that much of the increase that happened during the '90s and early 2000s 10 were due to incidental cancers that were picked up like 11 Mrs. Bartlett's where she went in for some other complaint and 12 they did imaging studies of the abdomen and found a kidney 13 tumor. 14 disease and they found a kidney tumor. 15 called a blip there. 16 In her instance, she was in there for gallbladder So there's what is The other important part here - and he ignored 17 completely - was the other major cause of kidney cancer is 18 cigarette smoking. 19 the decline over the last 30, 40 years or so, certainly amongst 20 men and now even amongst women. 21 decrease in kidney cancer. 22 factors I think is why we're seeing a stabilization now of the 23 kidney cancer rate. 24 Q 25 down? And cigarette smoking incidence has been on So that would have led to a So the blending of all of these Because one of the other contributing factors has gone Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 165 of 307 PAGEID #: 5166 1 2 3 A Vol. 12 - 165 Basically -- obesity has gone up, cigarette smoking has been going down. Q All right. Let's look over at page dot four, so page 4 731 of the article. 5 see 2032.4. 6 But in the upper right-hand corner you'll I wanted to focus you on the results down here. Now, in terms of these studies and how much weight you 7 give the studies, does the size of the study have any impact on 8 that? 9 A Yes. 10 Q And how does that come into play? 11 A Well, the larger number of population that's being 12 followed, the better the statistical analysis will be. 13 gives you a larger pool and there's less chance that the 14 results will happen by chance. 15 Q 16 many? 17 A 348,550. 18 Q Is that big or small? 19 A That's a huge study. 20 Q Let's go in the next column briefly. It And in terms of the participants here, there were how What is that? It says, Among 21 women, body weight and BMI were positively related to risk of 22 renal cell carcinoma, and woman in the highest versus the 23 lowest quintile of body weight had a twofold increase risk 24 after multivariable adjustment. 25 Can you interpret that for us? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 166 of 307 PAGEID #: 5167 1 A Vol. 12 - 166 Essentially, when you take into account all of the risk 2 factors -- so they took into account cigarette smoking, 3 hypertension, a few other things. 4 out, there is attributed to obesity itself about a twofold 5 increase in overall risk. 6 7 Q 10 Let's go back, Doctor, to page 3032.7, underneath the table is a paragraph. 8 9 When they filter all of that It says, In these analyses, obese women had a 1.68-fold increased risk of RCC, renal cell carcinoma, compared to non-overweight women. 11 Is that a statistic you're familiar with? 12 A Yes. 13 Q Do you agree with that statistic? 14 A Yes. 15 Q Doctor, we're not going to go through them all, but 16 approximately how many papers did you look at that have 17 analyzed the relationship between obesity and renal cell kidney 18 cancer? 19 20 21 A There were at least 20, some of which were reviews and some of which were primary studies. Q And again, we're not going to go through all of them. 22 just want to do a couple. 23 exhibit. 24 MR. MACE: 25 THE COURT: I want to go to a plaintiff's Can I approach, Your Honor? You may. I Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 167 of 307 PAGEID #: 5168 Vol. 12 - 167 1 BY MR. MACE: 2 Q Sir, do you have the exhibit that's been marked P1-6672? 3 A Yes. 4 Q Are you familiar with that article? 5 A Yes. 6 Q Do you consider it authoritative? 7 A Yes. 8 MR. MACE: Can we bring up P1-6672? Let's start with 9 the date again. 10 BY MR. MACE: 11 Q So we're now into 2008, sir? 12 A Yes. 13 Q And it's the Lancet. 14 A The Lancet is a medical journal published out of I guess down at the bottom. What is the Lancet? 15 England. 16 Association here in the United States. 17 18 Q It's comparable to our Journal of American Medical Is it fair to say that's one of the leading medical journals? 19 A It's one of the more popular medical journals. 20 Q Let's go back up to the title, please. This one is, 21 Body mass index and incidence of cancer, systemic review and 22 meta-analysis of prospective observational studies. 23 24 25 Do these people get paid by how many letters they use in their words? A This would actually be considered a short title. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 168 of 307 PAGEID #: 5169 1 2 3 4 Q In any event, body mass index. Vol. 12 - 168 I think most of us are familiar, but just so we're clear, what does that refer to? A The index which is a reflection of your weight. It's a ratio of your weight to height. 5 Q And then meta-analysis, again, what is that? 6 A That's a statistical review of several studies that 7 you've pooled all the population together to try to give a 8 larger sample size. 9 Q Let's bring up the findings box. In terms of study 10 size, we analyzed 221 datasets, 141 articles, including 282,137 11 incident cases. 12 13 14 That's the number of different people they looked at? A That's the number of actually cases of tumors they were able to identify. 15 Q Again, is that a small number or a big number? 16 A Enormous. 17 Q Below that it talks about, in women we recorded strong 18 associations between a five kilogram per meter squared increase 19 in BMI. 20 included there, right? It goes on with a number of cancers but renal is 21 A Yes. 22 Q What is that saying to us? 23 A Basically, what they're saying here is that every 24 increase of five BMI points, that the incidence rises by 1.34 25 times. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 169 of 307 PAGEID #: 5170 1 Q Let's go to the bottom of the page. Vol. 12 And if we could 2 bring up the text, the bottom third of the page. 3 2007, the World Cancer Research Fund used a more standardized 4 approach to review the evidence. 5 the evidence that body fatness is associated with increased 6 risk of -- and it goes on with cancers, but it includes the 7 kidney is convincing. 8 It says, In This report concluded that Do you agree with that statement? 9 A Yes. 10 Q Let's go over, sir, there's some tables and some text 11 next to it. 12 I want to turn you over to, please, dot four. MR. MACE: 13 at the bottom. 14 BY MR. MACE: 15 Q If we could enlarge, please, the paragraph In women, a five kilogram per meter squared increase in 16 BMI was strongly associated with renal cancer. 17 agree with that statement? 18 A Again, do you Yes. 19 MR. MACE: 20 THE COURT: 21 BY MR. MACE: 22 Q May I approach, Your Honor? You may. Doctor, I'm handing you -- it's being handed to you -- 23 an article I guess we'll marked for identification as D2457. 24 Are you familiar with that article? 25 169 A Yes. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 170 of 307 PAGEID #: 5171 1 2 Q Vol. 12 - 170 Is that something you've analyzed for purposes of your work in this case? 3 A Yes. 4 Q And do you consider that an authoritative article? 5 A Yes. 6 MR. MACE: 7 MR. DOUGLAS: 8 MR. MACE: 9 Let's bring up the first page of that. This is D2457? Yes. We've labeled it 2457. Could we have the ELMO, please? 10 BY MR. MACE: 11 Q Doctor, now we're up to 2010? 12 A Yes. 13 Q And the title is, Body mass index and cancer risk, 14 evidence for causal association, right? 15 A Yes. 16 Q There's some reference here that they're testing the 17 data against the Bradford-Hill criteria of causal association. 18 Do you have an understanding of what Bradford-Hill is referring 19 to? 20 A Yes. 21 Q What is that referring to? 22 A Bradford-Hill was a scientist that came up with some 23 criteria to evaluate causality now more than 50 years ago, and 24 it's still used today for evaluation of scientific evidence 25 supporting causation. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 171 of 307 PAGEID #: 5172 1 Q Vol. 12 They say that they tested the data against the 171 2 Bradford-Hill criteria of causal association and argue that the 3 available data support strength of association, consistency, 4 specificity, temporality, biological gradient, plausibility, 5 coherence and probably analogy. 6 7 8 9 What is that referring to? A Those are the criteria that were set forth by Bradford-Hill, again, more than 50 years ago. Q This is 2010. We conclude there is considerable 10 evidence to support a causal association between BMI and risk 11 for many cancer types. 12 Then they go on. Do you agree with that statement? 13 A Yes. 14 Q And in the introduction part, if we could -- they say 15 that increased body mass index as an approximation for body -- 16 is that adiposity? 17 A Yes. 18 Q Is an established risk factor for developing adult 19 malignancies. First of all, do you agree with that? 20 A Yes. 21 Q What is adiposity? 22 A Adiposity is fat tissue. 23 Q Let's look at one more, Doctor. 24 MR. MACE: 25 THE COURT: May I approach, Your Honor? You may. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 172 of 307 PAGEID #: 5173 Vol. 12 - 172 1 BY MR. MACE: 2 Q Doctor, do you have Exhibit D1492? 3 A Yes. 4 Q Is that one of the articles you've reviewed and analyzed 5 in coming to your opinions in this case? 6 A Yes. 7 Q Do you consider it authoritative? 8 A Yes. 9 Q Let's bring that up and start at the bottom -- 10 11 MR. MACE: I guess we need to switch over. If we could bring up the date at the bottom. 12 BY MR. MACE: 13 Q 14 out? 15 A Yes. 16 Q And let's bring up the entire summary box at the top. 17 18 So we're May of 2010 now. Is that when this was put So this is called epidemiology and risk factors for kidney cancer. And lead author is Chow? 19 A Yes. 20 Q It makes a reference here to the changing prevalence of 21 known risk factors for renal cell cancer including cigarette 22 smoking, obesity, and hypertension is likely to affect 23 incidence treads. 24 earlier? 25 A Yes. Does that relate to what you were telling us Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 173 of 307 PAGEID #: 5174 1 Q Vol. 12 - 173 In terms of these factors -- let's look over at the key 2 points box on the next page. 3 points. If you could pull up the key 4 Article states, Cigarette smoking, obesity, and 5 hypertension are well-established risk factors for renal cell 6 kidney cancer. 7 Do you agree with that statement? 8 A Yes. 9 Q Did you read Dr. Bahnson's testimony that he did not 10 11 12 13 14 think any of those were risk factors? A I read that, yes. He actually used this reference also, which surprised me. Q He used this reference as one of his references, but his conclusion is they're wrong, they're not risk factors? 15 A That's what he stated. 16 Q Let's look over at the table on risk factors, table 17 three in this article he cited. 18 me look. 19 20 My page doesn't have the number. MR. MACE: I guess it's dot six, please. If you could blow up that table, including the footnote. 21 BY MR. MACE: 22 Q 23 So it would be over at -- let So it's table three, risk factors for renal cell carcinoma. Do you see that? 24 A Yes. 25 Q It breaks them up into established and suspected, right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 174 of 307 PAGEID #: 5175 Vol. 12 1 A Yes. 2 Q And established risk factors include the cigarette 3 174 smoking, excess body weight and hypertension, right? 4 A Yes. 5 Q Also, I guess, family cancer syndromes, right? 6 A Yes. 7 Q And in terms of the established, it's got this little 8 asterisk. 9 in nearly all scientific study, exposure precedes renal cell If you go down and look at what that means, Observed 10 cancer, dose-response relationships, risk reductions with 11 removal of exposure. 12 of whether or not it's causal or not? Are those factors you consider in terms 13 A Yes. 14 Q Let's look at the renal cell carcinoma box lower in the 15 page to the right. 16 an established risk factor for both tumor types, and then 17 predisposing conditions including obesity and hypertension are 18 known to increase the risk of renal cell cancer development, 19 right? So it talks about cigarette smoking being 20 A Yes. 21 Q Over on obesity, let's look at that page. 22 23 Over one page at the top right, it's got a specific statement on obesity. Excess body weight was estimated to have a role in the 24 development of more than 40 percent of renal cell cancer cases 25 in the U.S. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 175 of 307 PAGEID #: 5176 Vol. 12 1 175 Do you agree with that statistic? 2 A Yes. 3 Q And then it talks about, Prospective studies worldwide 4 found individuals who were overweight or obese at baseline had 5 an increased risk of subsequent renal cell cancer in a 6 dose-response manner. 7 A What's that talking about? I think there are several aspects of the sentence that 8 are important. 9 retrospective, so it eliminates the issue of recall bias. 10 looking forward and following patients for development of 11 cancer. 12 One is they're prospective studies, not It's Secondly, it's including individuals that are overweight 13 and obese. 14 all together in a category. 15 carcinoma, that 34 percent of the cases in women -- I'm sorry, 16 that there is a dose-response increase for each five BMI units, 17 kilogram per meter squared, that for each of those for women it 18 increases by 34 percent. 19 20 21 Q So it's a BMI of 25 and greater, and putting them All right. And even with that for renal cell And for somebody like Mrs. Bartlett, what was her BMI? A Her BMI was, at the time of diagnosis, just over 40. 22 it would be three of these five kilogram per meter squared 23 units. 24 Q So in terms of a percent risk increase? 25 A It would be up by 102 percent more. So So more than double Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 176 of 307 PAGEID #: 5177 Vol. 12 1 2 3 compared to the baseline. Q There is a statement below that in the next paragraph. If we could go down a little further. 4 5 176 The global rise in obesity is likely to have contributed to the increase in renal cell carcinoma incidence. 6 Does that relate to what you were talking about earlier? 7 A Yes. 8 Q Did you also, sir, review some of the materials that we 9 reviewed with Dr. Bahnson during his testimony at court? 10 A Yes. 11 Q And, for example, the American Cancer Society, do you 12 view their publications on cancer generally to be 13 authoritative? 14 15 A They're good reference, especially on incidence and causation. 16 MR. MACE: 17 THE COURT: 18 BY MR. MACE: 19 Q 20 May I approach, Your Honor? You may. I'm going to label this as D2458. Doctor, are you familiar with this review? 21 A Yes. 22 Q Do you consider it to be authoritative? 23 A Yes. 24 25 MR. MACE: please? Can we bring up the first page of that, Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 177 of 307 PAGEID #: 5178 Vol. 12 1 BY MR. MACE: 2 Q 3 Again, I don't want to dwell too much on this. 177 Let's go to page one, basic cancer facts, and can cancer be prevented. 4 It talks about the World Cancer Research Fund estimating 5 that up to one-third of the cancer cases that occur in 6 economically developed countries like the U.S. are related to 7 overweight or obesity, physical inactivity, and/or poor 8 nutrition, and thus could be prevented. 9 Are you familiar with that research? 10 A Yes. 11 Q Do you agree with it? 12 A Yes. 13 Q Let's look over specifically at kidney cancer, which is 14 page 13 of the document. 15 page 13 on the bottom right corner. 16 cancer. It's going to have a different -Let's bring up that kidney 17 So, again, it's talking about now we're up to 2015 and 18 it's talking about an estimated more than 61,000 new cases of 19 kidney renal cancer expected to be diagnosed in 2015. 20 see that? Do you 21 A Yes. 22 Q That's what you were referring to that statistics are 23 going up? 24 A Yes. 25 Q Risk factors. Tobacco smoking is a strong risk factor Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 178 of 307 PAGEID #: 5179 Vol. 12 Additional risk factors include obesity 1 for kidney cancer. 2 which causes an estimated 30 percent of cases, and it lists 3 some other things. 4 Are you familiar with these statistics? 5 A Yes. 6 Q Is that in the same ballpark that you believe is 7 accurate? 8 A Yes. 9 Q Finally, on this topic, you saw that Dr. Bahnson 10 referred to some textbooks? 11 A Yes. 12 Q Campbell-Walsh Urology. 13 text? 14 A Yes. 15 Q Four volumes of this, right? 16 A It's a very heavy set of documents. 17 Are you familiar with that That's the standard textbook for urologists. I think it costs over a thousand dollars. 18 Q Do you consider that authoritative? 19 A Yes. 20 MR. MACE: 21 BY MR. MACE: 22 Q 23 178 Do we have page 1421 of that? Again, in terms of the established -- so this is renal tumors, established, and etiology. You said that's causation. 24 A Yes. 25 Q Tobacco exposure, obesity, hypertension and putative, Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 179 of 307 PAGEID #: 5180 Vol. 12 1 and it has some other things listed, right? 2 A Correct. 3 Q Trichlorethylene, occupational exposure, radiation 4 therapy, dietary and other things, right? 5 A Yes. 6 Q It's got etiology below that. 7 179 And again, you said that's causation, right? 8 A Correct. 9 Q The most generally accepted environmental risk factor 10 for renal cell cancer is tobacco exposure, and talks about the 11 relative associated risks being modest. 12 13 And let's go to the next page. Bring up the obesity section. 14 Obesity is now accepted as another major risk factor for 15 renal cell cancer of an increased relative risk of 1.07 for 16 each unit of rising body mass index, right? 17 A Correct. 18 Q And it cites some of the articles we've already talked 19 about, right? 20 A Yes. 21 Q Increased prevalence of obesity likely contributes to 22 increase incidence of renal cell cancer in Western countries. 23 It's been estimated that more than 40 percent of cases of renal 24 cell cancer in the United States may be causally linked to 25 obesity. Do you agree with that statistic? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 180 of 307 PAGEID #: 5181 Vol. 12 1 A Yes. 2 Q And finally the other text that Dr. Bahnson mentioned, 3 Adult and Pediatric Urology. Are you familiar with that text? 4 A Yes. 5 Q Do you consider that authoritative? 6 A Yes. 7 8 9 10 MR. MACE: 180 If we could go to page 614, please. Let's bring up the table in that paragraph. BY MR. MACE: Q Table 6.2, risk factors associated with renal cell 11 carcinoma, it includes cigarette smoking, hypertension, 12 elevated body weight, medications and some other things, right? 13 A Yes. 14 Q Including genetic predisposition, right? 15 A Correct. 16 Q Etiology, causation. Based on information from case 17 controlled genetic and cohort studies, several risk factors 18 have been associated with the development of renal cell cancer. 19 Most studies with sufficient sample size demonstrate a positive 20 correlation between renal cell cancer and smoking cigarettes 21 associated with up to 35 percent increase in risk. 22 Obesity also has shown positive association with renal 23 cell cancer. 24 weight than for male counterparts, right? 25 A Yes. Greater risks exist with women with elevated Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 181 of 307 PAGEID #: 5182 Vol. 12 - 181 1 Q Do you agree with those statistics? 2 A Yes. 3 Q Doctor, do you have an opinion to a reasonable degree of 4 medical certainty as to whether obesity is a causative risk 5 factor for the development of kidney cancer in general? 6 A I do. 7 Q What is your opinion? 8 A I strongly believe that it is a major cause of renal 9 10 cell carcinoma in the United States. Q Do you believe that obesity, as a causative factor for 11 the development of kidney cancer, is well established in the 12 literature? 13 A Yes. 14 Q And do you believe that it satisfies the Bradford-Hill 15 criteria? 16 A It does. 17 Q With regard to Dr. Bahnson's testimony that obesity is 18 not even a risk factor, do you agree or disagree with that? 19 A I strongly disagree with that statement. 20 Q With regard to his statement that hypertension and 21 smoking are not risk factors for kidney cancer, do you agree or 22 disagree? 23 A I also disagree with that. 24 Q Did you see Dr. Bahnson's testimony that prior to coming 25 to his opinions in this case he did not specifically pull out Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 182 of 307 PAGEID #: 5183 1 Vol. 12 - 182 and analyze the literature on the relationship between obesity 2 and kidney cancer? 3 4 5 6 A I did see that statement, which surprised me considering that he was countering all the published literature. Q Do you think that's a reliable way to come to opinions on the relationship between obesity and kidney cancer? 7 MR. DOUGLAS: 8 THE COURT: 9 instruction as well. I object. You can cover that on cross. give it, then we'll continue. 11 MR. DOUGLAS: This would be a good time for the instruction. 13 14 We have the I'm waiting for you to ask me when to 10 12 It misstates the testimony. THE COURT: When you're finished with this topic, let me know and then I'll give it. 15 BY MR. MACE: 16 Q Doctor, do you think that's a reliable way to come to 17 opinions on relationship between obesity and kidney cancer, to 18 not pull out the literature on it and study it? 19 A No. 20 MR. DOUGLAS: 21 THE COURT: Objection. Overruled. 22 BY MR. MACE: 23 Q Your answer, Doctor? 24 A No, especially if you're going counter to the prevailing 25 conclusions that are in the literature. You need to have a Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 183 of 307 PAGEID #: 5184 1 Vol. 12 - 183 thorough review and come to a clear understanding of why you're 2 disagreeing with everyone else. 3 MR. MACE: I'm shifting a little bit on topic, Your 5 THE COURT: Ladies and gentlemen, I'm going to give 6 you another instruction here. 4 Honor. 7 You've just heard some evidence relating to an alleged 8 relationship between obesity and kidney cancer, but you need to 9 understand that no expert or other witness in this case is 10 actually offering any medical opinion that obesity, and not 11 C-8, was the specific cause of Mrs. Bartlett's kidney cancer. 12 Mrs. Bartlett has offered medical opinion testimony that her 13 kidney cancer was caused by C-8 in her drinking water. 14 evidence relating to obesity as the potential cause of her 15 kidney cancer may be considered only as an attempt to discredit 16 the evidence supporting her claim that C-8 caused her kidney 17 cancer. 18 Any With that, you may continue. 19 BY MR. MACE: 20 Q Dr. Cohen, are you aware that Dr. Bahnson listed a 21 number of competing causes for kidney cancer and then evaluated 22 the competing causes? 23 A Yes. 24 Q And are there important factors that need to be 25 considered when you're doing that type of weighing between Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 184 of 307 PAGEID #: 5185 Vol. 12 1 competing risk factors? 2 A Yes. 3 Q Let's use an example, Dr. Cohen. Let's say, 4 hypothetically, that instead of kidney cancer, this case was 5 about what caused somebody's lung cancer. 6 the hypothetical? Are you with me on 7 A Yes. 8 Q Let's say that person, this hypothetical person, had 9 been exposed to both chest radiation on one hand, and tobacco 10 smoke on the other hand. 11 important to consider when you're trying to evaluate the most 12 likely cause of the lung cancer? 13 A What type of factors would be For both the causes, you would have to know something 14 about the amount that they were exposed to and for how long. 15 With regard to radiation, you'd have to be specific as to the 16 type of radiation that was involved. 17 18 184 Q Now, in terms of the amount of exposure with regard to the smoking, are you familiar with the concept of pack years? 19 A Yes. 20 Q And, in your opinion, sir, before we get there, are both 21 smoking on the one hand, and radiation on the other hand, 22 capable of causing, capable of causing lung cancer? 23 A Yes. 24 Q So despite the fact that radiation and smoking are both 25 capable of causing the lung cancer, can you come to a reliable Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 185 of 307 PAGEID #: 5186 1 Vol. 12 - 185 opinion as to whether one was, in fact, a likely cause of the 2 specific person's lung cancer without an evaluation of the 3 relative dose? 4 A No. 5 Q Dr. Cohen, have you also reviewed Dr. Bahnson's 6 You have to know the dose and duration. background and training? 7 A Yes. 8 Q And are there differences between his background and 9 10 training and your background and training, as it relates to the specific issues in this case? 11 A Yes. 12 Q What are some of those differences? 13 A Dr. Bahnson is a urologist, and he's been trained in the 14 surgical aspects of urology, particularly the treatment of 15 cancer in the various urological organs, which would be kidney, 16 bladder, testes, adrenal. 17 various clinical aspects of these diseases, also looking for 18 biomarkers. 19 on causation or evaluation of that. 20 His research has been focused on He has not had any training nor has he published My background is involved with diagnosis and prognosis 21 as a pathologist. 22 Dr. Bahnson with the NCCN, which is the National Comprehensive 23 Cancer Network system for the bladder, where we came up with 24 guidelines for the diagnosis and management of patients with 25 bladder cancer. I actually served on the bladder panel with Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 186 of 307 PAGEID #: 5187 Vol. 12 - 186 But I've also been trained, with my Ph.D. and then with 1 2 all my research, on specific aspects of causation with regard 3 to what kinds of chemicals and other agents can cause cancer 4 and mechanisms by which they act. 5 6 Q Doctor, do you have specific experience with investigations concerning animal carcinogenesis? 7 A Yes. 8 Q Do you have specific experience with investigations 9 concerning human cancer epidemiology? 10 A Yes. 11 Q Do you believe that the differences between some of your 12 training and experience versus Dr. Bahnson's are significant in 13 terms of the specific issues involved in this case? 14 A Yes. 15 Q How so? 16 A I think that, as I said, he has not had any training in 17 causality, and that's reflected in both his report as well as 18 his testimony and cursory aspect of his overall evaluation, 19 whereas, I've been involved with the causation and especially 20 the issue of extrapolation of animal findings to humans. 21 been on the WHO panel that's involved with this beginning in -- 22 I think we started in 1996 developing a framework on how you 23 analyze the animal data and how you then extrapolate those 24 findings to the human. 25 Q Doctor, did you review Dr. Bahnson's report in his I've Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 187 of 307 PAGEID #: 5188 Vol. 12 1 testimony regarding C-8? 2 A Yes. 3 Q And did that include a transcript from Dr. Bahnson's 4 187 trial testimony? 5 A Yes. 6 Q Did you see Dr. Bahnson's statement that it is important 7 to consider dose when evaluating specific causation in an 8 individual? 9 A Yes. 10 Q Do you agree with that statement, that it's important to 11 consider dose when evaluating specific causation in an 12 individual? 13 A Yes, that's the fundamental principle of toxicology. 14 Q We talked about this hypothetical and the tobacco and 15 the number of pack years. 16 whether Dr. Bahnson appropriately considered relative dose, 17 this pack-years-type concept, when weighing the potential that 18 Mrs. Bartlett's kidney cancer was caused by obesity or weighing 19 the possibility that it was due to C-8? 20 A It didn't seem -- 21 MR. DOUGLAS: 22 THE COURT: 23 24 25 Do you have an opinion, sir, as to Objection, Your Honor. I'll see you at side-bar. if you wish, ladies and gentlemen. You say stand Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 188 of 307 PAGEID #: 5189 Vol. 12 1 2 - - Thereupon, the following proceeding was held at side-bar 3 out of hearing of the jury: 4 THE COURT: What we all know has been ruled out is 5 this doctor's use of a differential diagnosis. 6 understood the question to be asking is whether Dr. Bahnson's 7 use of differential diagnosis was medically sound. 8 what you see is the question? 9 10 MR. MACE: In a nutshell. What I Is that This is right in accord with your ruling on evidentiary motions. 11 THE COURT: 12 I'm going to be consistent. 13 MR. MACE: 14 THE COURT: 15 percent close. 16 You're assuming one thing, though, that You were pretty close through three orders. For the record, I'd say I was a hundred There's no margin of error. MR. MACE: 17 Yes, sir. Stipulated. DuPont can present a witness to create a triable issue 18 by attempting to disprove the reliability of testimony on 19 specific causation. 20 THE COURT: I'm with you on that. I agree with that. 21 Now the question is, is there any reason why this goes beyond 22 that? 23 188 MR. DOUGLAS: I just want to read -- let me preference 24 it by saying I'm concerned about the part of the Court's order 25 that said DuPont is cautioned that Dr. Cohen may not utilize Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 189 of 307 PAGEID #: 5190 1 Vol. 12 - 189 his impeachment opinion as a back door to state his opinions 2 related to general or specific causation. 3 MR. BILOTT: That's precisely what this is. They were 4 attempting to present to the jury the fact that -- this is 5 exactly what we talked about before. 6 Dr. Bahnson -- they're going to get this witness to say 7 Dr. Bahnson didn't properly consider dose, which is something 8 the science panel did not do. 9 hypothetical -- 10 11 THE COURT: They're going to say To suggest through this Let me get an instruction on this. This reminds me of the tobacco case. You can't use dose 12 in the tobacco case to say you didn't have high enough dose to 13 get lung cancer. 14 doesn't meet the .05 parts per billion. 15 you're weighing competing etiology. 16 17 18 That can't be said here as long as she MR. BILOTT: It can be used when Our concern in this particular case, the science panel didn't calculate what the specific doses were. THE COURT: I'll give you an instruction on that. I 19 do think, like in smoking cases, whether you smoke 30 years or 20 five years, it's something the jurors can consider in deciding 21 which is the more probable cause. 22 MR. MACE: 23 THE COURT: That's the limited use I'm trying to make. With that instruction, would you be 24 satisfied with that? 25 would be without the instruction. Not satisfied, but be happier than you Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 190 of 307 PAGEID #: 5191 Vol. 12 1 MR. BILOTT: 2 (Back in open court.) 3 THE COURT: 4 may. 5 about. We understand, Your Honor. If you want to reask the question, you And after the answer, I'll give the instruction we talked 6 BY MR. MACE: 7 Q To set the stage, we talked about a hypothetical, not 8 this case but a different case, and we talked about if this 9 case was about lung cancer and pack years. 10 bring it back to Dr. Bahnson's testimony. 11 was: 12 appropriately considered relative dose, that pack-years-type 13 concept, when weighing the potential that Mrs. Bartlett's 14 kidney cancer was caused by obesity, or in weighing the 15 possibility it was due to C-8? 16 190 And I was trying to My question to you Do you have an opinion as to whether Dr. Bahnson This first question was do you have an opinion? 17 A Yes. 18 Q And let's start with the obesity, first. 19 Do you have an opinion to a reasonable degree of medical 20 certainty as to whether Dr. Bahnson appropriately considered 21 the level of obesity, the pack years to put it into a different 22 context, the pack years of obesity, or level of obesity in 23 weighing the potential that Mrs. Bartlett's kidney cancer was 24 caused by obesity? 25 A He completely dismissed obesity as a risk factor, so he Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 191 of 307 PAGEID #: 5192 1 Vol. 12 couldn't put it into perspective of quantitatively since he 2 dismissed it qualitatively. 3 Q 191 In terms of the literature, some of which we reviewed, 4 but you said approximately 20 articles out there, several of 5 these cited by Dr. Bahnson, what does the scientific literature 6 in your opinion tell us about the relative risk for getting 7 kidney cancer from obesity if you're morbidly obese, if you 8 have the level of obesity we're talking about here? 9 A I think as you saw in the articles we reviewed, all of 10 them talk about a dose response. 11 that have looked at obesity and renal cell carcinoma, they've 12 shown a dose response which means the heavier you are, the 13 higher your BMI, the rate of your risk of developing kidney 14 cancer. And nearly all the studies 15 For the morbidly obese, some of them come up with 16 estimates that are fivefold higher than somebody who is normal 17 weight, or even higher. 18 risks. 19 your three pack a year for 40 years kind of exposure. That would be the high end of the So going back to your cigarette analogy, that would be 20 Q Okay. 21 A Compared to a cigarette a day. 22 Q Okay. As opposed to a pack a day or a pack -- So similarly, when applying this pack-year 23 concept to Mrs. Bartlett's exposure to C-8, did you feel that 24 Dr. Bahnson adequately evaluated that? 25 A I felt that he did not evaluate quantitatively. He just Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 192 of 307 PAGEID #: 5193 1 Vol. 12 - 192 basically put together all of that, even though he stated that 2 dose was an important consideration. 3 Q Now, the jury has heard a little bit, Doctor, about 4 water levels, the level of C-8 in water, drinking water, and 5 level of C-8 in the blood. 6 better measurement of a particular individual's dose than the 7 other? 8 9 A In your expert opinion, is one a Blood levels are generally considered a better assessment of the exposure compared to water levels, because 10 blood levels would reflect what that individual's body has done 11 with the substance once it's gotten their exposure into it. 12 generally, blood levels are considered a much better exposure. 13 So, for example, in pharmaceutical industry, the FDA only 14 accepts blood levels. 15 something, how much is in a pill. So They don't say what's the daily dose or It's what's the blood level. 16 Q So there is individual variation among people? 17 A Quite a large variation. 18 Q And you and I, for example, could be exposed to the 19 exact same amount in the air, but we could end up with 20 different amounts in our blood? 21 A Exactly. 22 Q Do you recall from reading Dr. Bahnson's second 23 transcript of his deposition -- so after he had rendered his 24 opinions, and then he was deposed as an expert -- that he did 25 not know at that time even what Mrs. Bartlett's blood level Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 193 of 307 PAGEID #: 5194 Vol. 12 1 was? 2 A 3 4 193 I do not believe he knew at that time, or at least he didn't state that he was aware. Q Did you read the part of his trial testimony where he 5 acknowledged that she had about a 19.5 part per billion of C-8 6 in her blood when it was tested in 2005? 7 A Yes. 8 Q Did you see his acknowledgment that the mean level for 9 10 all of the community members that were tested in 2005 was approximately 82 parts per billion? 11 A Yes; for women, yes. 12 Q And then for the people drinking the Tuppers Plains 13 water, that the mean was approximately 39 parts per billion? 14 A Correct. 15 Q But did you see any of this weighing of the pack years 16 in Dr. Bahnson's, either in his report or his opinion and 17 testimony at deposition or at trial? 18 A No. 19 Q I'm going to keep moving. 20 MR. DOUGLAS: 21 THE COURT: Your Honor, I ask for the instruction. Ladies and gentlemen, I'm going to try and 22 thread the needle again here with you. 23 to a cigarette smoking case where someone has developed lung 24 cancer and the issue would be was it caused by smoking or was 25 it caused by something else? Let's use a comparison And the jury would have to decide Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 194 of 307 PAGEID #: 5195 1 Vol. 12 which of the causes was the one that essentially caused the 2 lung cancer. 3 caused by smoking. 4 But that's not something any scientist would deny at this 5 point. 6 194 The law has concluded that lung cancer can be It doesn't mean it always is the cause. The place that dosage comes in, in other words, how many 7 cigarettes did you smoke comes in, is not to show that someone 8 didn't smoke and the lung cancer wasn't connected to the 9 smoking, but it goes to the issue of is it more likely that 10 smoking caused the lung cancer compared to something else. 11 That's what we're getting into here. 12 You've seen the standard that we've talked about, the 13 .05 parts per billion. 14 doctor's testimony is not challenging that. 15 the quantity in the water and the length of time may have 16 something to tell you about how you decide what caused the 17 kidney cancer. 18 19 I know you all know it by heart. But the dosage, It doesn't undercut the .05 parts per billion. you understand that. 20 BY MR. MACE: 21 Q The I'm sure So with that, you may continue. Dr. Cohen, as part of your work in this case, did we ask 22 you to look at the various risk factors that Dr. Bahnson had 23 listed in reaching opinions in terms of the thoroughness of his 24 investigation of those various factors? 25 A Yes. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 195 of 307 PAGEID #: 5196 1 2 Q Vol. 12 - 195 I'm going to talk to you about a couple, but let's bring up his list of risk factors for kidney cancer. 3 I guess, let's just start with the first one there, 4 Doctor. 5 Dr. Bahnson do a thorough investigation of that factor? 6 7 A Family history. Is it your opinion, Doctor, did He did an investigation but it was quite limited and certainly wouldn't be considered a thorough investigation. 8 Q And why do you say that? 9 A A couple of things. One is that he didn't -- other than 10 I believe parents and siblings, he didn't go beyond that, as 11 far as looking for possible causes. 12 it in greater breadth with other family members and other 13 generations, particularly in an individual like Mrs. Bartlett 14 who developed a cancer at a relatively young age. 15 she was 40 or 41 at the time of diagnosis. 16 figure you should explore in greater depth in family history. 17 Q But also he didn't follow I believe Generally, that's a So, if this is Mrs. Bartlett and her mom and dad and 18 their moms and dads, you saw that he had some information on 19 her dad? 20 A Correct. 21 Q Did you see any investigation of the rest of the family 22 tree? 23 A No, I did not. And also with regard to the dad, it was 24 strictly for him, the evaluation of the kidney cancer that he 25 had, although his was a different type than the one that Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 196 of 307 PAGEID #: 5197 Vol. 12 1 2 196 Mrs. Bartlett had. Q Let's be clear on that. You're not claiming that her 3 father, Mr. Clem -- you're not claiming that he had renal cell 4 kidney cancer? 5 A No. But I think it's important to note he had four 6 different types of cancer, and that should also bring up a 7 greater concern for a family connection for just cancer risk 8 overall. 9 MR. DOUGLAS: 10 11 THE COURT: gentlemen. Your Honor, may we approach? You may stand if you wish, ladies and I'll see you at side-bar, Counsel. 12 13 14 - - Thereupon, the following proceeding was held at side-bar out of hearing of the jury: 15 MR. DOUGLAS: I hate to be a nag, Judge, but this 16 opinion is -- he's clearly said that he is -- he is suggesting 17 that family history may have played a role. 18 all these different cancers that the father had should be of 19 concern, and that it's clearly -- this is just coming that 20 close to just stating an opinion. 21 He just said that Secondly, he testified that -- he wrote in his report 22 and testified at his deposition that family history played no 23 role. So to suggest right now is completely disingenuous. 24 THE COURT: 25 wouldn't that be sufficient? Isn't that cross-examination? Why Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 197 of 307 PAGEID #: 5198 1 2 3 4 MR. DOUGLAS: causation. THE COURT: Do you mind if I kid you, that's kind of a New York thing? MR. DOUGLAS: 6 MR. BILOTT: 8 9 10 11 12 13 We use our hands. There was a motion in limine on the family history issue. MR. MACE: You'll recall the resolution of the -- the erroneous of the other doctor's investigation. That's all he's talking about, the erroneous -THE COURT: I'm sure if he said it's so, it's so. But that's cross-examination. MR. DOUGLAS: I don't think this is something I can 14 cross-examine on because that would open the door to his 15 specific causation. 16 THE COURT: 17 MR. DOUGLAS: No. I mean -- Am I permitted to say you ruled out 18 family history? 19 that, cross-examine, and I'm not opening the door -- 20 197 I'm not going to open that door. 5 7 Vol. 12 He's been precluded on specific If the Court is saying I am permitted to do MR. MACE: I don't believe he'll say that -- during my 21 discussions with him, he thinks family history was -- he's 22 talking about the thoroughness. 23 MR. DOUGLAS: The suggestion is right now that it was 24 of concern and, therefore, he is suggesting that -- the doctor 25 is suggesting to the jury potentially, as they go back and Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 198 of 307 PAGEID #: 5199 1 Vol. 12 deliberate and think about that answer, they'll think that 2 family history is part of what happened. 3 THE COURT: You can still use his testimony even 4 without the opinion. 5 diagnosis. 6 198 He's not going to give the differential You can still cross him with his prior testimony. MR. DOUGLAS: So I'm clear, I can ask him, don't you 7 agree that family history played no role in this case, and that 8 will not open the door for Mr. Mace to get into the rest or 9 anything else on cause specific. 10 MR. MACE: My redirect can get him -- he doesn't know 11 one way or the other and Bahnson doesn't know one way or the 12 other. 13 (Back in open court.) 14 THE COURT: 15 BY MR. MACE: 16 Q You may continue, Mr. Mace. We were about to go to the second factor, genetics. 17 guess I'll ask you the same question, Dr. Cohen. 18 Bahnson do a thorough investigation, in your view, of that 19 factor? 20 A No. I Did Dr. He mentioned some of the genes that are related and 21 some of the mechanisms by which they act, but he didn't give a 22 thorough evaluation of either aspect. 23 Q Let's get some clarification here because you may recall 24 from reading his testimony, he and I had a brief discussion 25 about the VHL gene? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 199 of 307 PAGEID #: 5200 Vol. 12 1 A Yes. 2 Q Can you explain to us -- first of all, do you have 3 familiarity with that based on your decades of experience in 4 cancer research? 5 A Yes. 6 Q In terms of kidney cancer and the VHL gene, could you 7 8 9 199 I'm very familiar with the VHL gene. describe to us why that can be significant? A It was discovered that people with the so-called Von Hippel-Lindau, or VHL disease, that they have a very high 10 chance of developing renal cell carcinomas. 11 examination of that gene in people who don't have that specific 12 genetic abnormality, and it was found that probably around 75 13 to 80 percent of renal cell carcinomas, in general, have 14 abnormalities in that particular gene. 15 whole avenue of investigation in investigating other genes that 16 are related to VHL that can also lead to the development of 17 kidney cancer. 18 into the mechanism by which this gene can cause cancer. That led to an And that's led to a But more importantly, it's given us insight 19 Q What do you mean by that? 20 A Essentially, the VHL gene and a number of these other 21 genes that have shown to be causative for kidney cancer, all 22 lead to activation of a gene called hypoxia inducible factor 23 alpha 2. 24 response to hypoxia. 25 Actually, as Dr. Bahnson pointed out, it's a common thread for It's a fancy name for HIF 2 alpha. This gene is in That seems to be the common thread. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 200 of 307 PAGEID #: 5201 Vol. 12 - 200 There's probably five 1 the VHL gene and all these other genes. 2 or six other genes that are involved with these. 3 The common thread is this activation of this HIF 2 4 alpha. 5 it's activated, it makes the kidney cells proliferate. 6 it's that proliferation of the kidney cells that eventually 7 leads to the development of the cancer. 8 9 That gene is important because what it does is, when And So it's begun to tie together a lot of different aspect of kidney cancer which has been very important because now we 10 actually have a target for the treatment of kidney cancer, 11 which is being utilized in a number of clinical trials. 12 Q Sir, this VHL gene, is that on chromosome three? 13 A Yes. 14 Q And are you familiar with something -- have you heard 15 the phrase spontaneous DNA replication errors? 16 A Yes. 17 Q What does that mean? 18 A Basically, every time DNA divide, replicates itself and 19 the cell divides, that mistakes happen; not very many given the 20 enormity of number of letters in the gene alphabet. 21 some of these can occur. 22 needed for development of cancer occur in a single cell, then 23 you eventually will develop cancer. 24 25 Q But it -- And if all of the mistakes that are And can those spontaneous DNA replication errors occur without any external factor, any chemical exposure, anything Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 201 of 307 PAGEID #: 5202 Vol. 12 1 else? 2 A Just DNA replication itself will lead to a small number 3 of errors. 4 literally billions of cells in our body that are replicating 5 every day, the chances of abnormalities happening increases 6 significantly. 7 Q It's just when you put that into perspective of the In terms of the thoroughness of Dr. Bahnson's 8 investigation, did you see any indication that he did any 9 genetics testing on Mrs. Bartlett? 10 11 A 201 I don't believe he did, nor have any of the other physicians that I'm aware of. 12 Q 13 D.C. 14 there's only one place in the country to get genetics testing? 15 Is that accurate? 16 A Do you recall his comment -- I can't recall if it was He said you would have to go somewhere for that, like I think he referred it was all at the National Cancer 17 Institute. 18 including here at Ohio State, the Cleveland Clinic, any major 19 medical center would do these kinds of analyses. 20 Q In reality, this is done in many institutions I don't want to dwell too much on any one of these. 21 Workplace chemical exposure. 22 thoroughly evaluated whether workplace chemical exposure was a 23 proximate cause of her kidney cancer? 24 25 A Did you think Dr. Bahnson He didn't mention any workplace exposures or possible exposures for Mrs. Bartlett. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 202 of 307 PAGEID #: 5203 1 2 3 Q Vol. 12 Did you see anything on the records that indicate at 202 least something that should be looked into? A I thought there was one aspect that needed to at least 4 be explored, and that was the fact that she stated in her 5 testimony that she goes for, I believe, lunch at a dry cleaner 6 and cleaning facility. 7 cleaner facilities is this trichlorethylene, which has been 8 classified as a known human carcinogen. 9 Q One of the chemicals used in dry I don't want to spend too much time on these lists. 10 Doctor, you've talked about a number of factors that can lead 11 to kidney cancer. 12 identifiable reason? But do some people get kidney cancer for no 13 A Yes. 14 Q And in fact, unfortunately, is that common? 15 A Unfortunately, yes. 16 Q And sir, as much as people would like to find something 17 to blame, are we always able to find out the cause of a 18 specific individual's cancer? 19 A No. I think it's been estimated that approximately half 20 of the cancers that develop in the United States that lead to 21 death do we actually have a known cause for, or even possible 22 cause. 23 Q Doctor, I want to shift for just a couple minutes, a few 24 minutes, and talk about the time. 25 time to the '80s and the '90s. I want to take you back in Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 203 of 307 PAGEID #: 5204 Vol. 12 1 A Okay. 2 Q A lot of our discussions have been down here in green. 3 203 I want to take you back to the '80s and '90s. 4 A Okay. 5 Q Sir, you say you have some familiarity with animal 6 studies for cancer and how those results should be applied to 7 humans or should not be applied to humans? 8 A Yes. 9 Q And I want to take you back to the state of the science 10 back in the '80s and '90s. 11 A Okay. 12 Q Are you able to do that? 13 A Yes. 14 Q All right. 15 A Remember my history goes back to the '60s. 16 Q You're not that much older than me. 17 The jury has heard about a rat study that showed benign 18 Leydig cell tumors at high doses of C-8 that was conducted by 19 3M Corporation in the late '80s. 20 study? Are you familiar with that 21 A Yes. 22 Q First of all, let's back up a few steps. 23 Are the results of animal studies always applicable to humans? 24 A No. 25 Q For example, do some of the common medicines that human Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 204 of 307 PAGEID #: 5205 Vol. 12 1 2 beings take cause cancer in laboratory animals? A Many of them do. Actually, it's been estimated that 3 approximately 50 to 60 percent of the drugs that are in the 4 Physician's Desk Reference, which is a compilation of all the 5 drugs on the market, about 50 to 60 percent have tested 6 positive in a rat, mouse, or both. 7 8 9 Q In fact, did you look at Mrs. Bartlett's list of medicines? A Yes. At least one of those is a known animal 10 carcinogen. 11 gastroesophageal reflux disease, otherwise known as Prilosec, 12 is a well-known carcinogen in rats and mice. 13 type of stomach cancer. 14 15 Q Omeprazole, which she's taking for that -- I can't even pronounce it. A Omeprazole. 17 Q That one. 19 It produces a Just so the jury is perfectly clear, you're not claiming 16 18 You're not claiming that caused her kidney cancer? A No. Everything we know about that drug is that it 20 causes stomach cancer in rats and mice by a mechanism that's 21 not relevant to humans. 22 23 204 Q Your only point is that some substances can cause a disease in one animal but not another? 24 A Correct. 25 Q So back in the '80 and '90s, when this study came out in Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 205 of 307 PAGEID #: 5206 1 Vol. 12 the late '80s that shows Leydig cell tumors in rats, should 2 that have put DuPont on notice back at that time, knowing what 3 was known at the time, that C-8 was a human carcinogen? 4 MR. DOUGLAS: 5 to general causation. 6 THE COURT: 205 Objection on the grounds that is going All right. Overruled. This goes to 7 knowledge of DuPont in the '80s, not to the standard we've been 8 talking about. 9 MR. MACE: I tried to make that very clear. 10 BY MR. MACE: 11 Q Sir, you can answer the question. 12 A I believe the study was reported and completed in 1987 13 or thereabout. 14 Leydig cell tumors in certain strains of rats were very common. 15 This particular strain of rat, it certainly is very common. 16 And that number two is that they're almost -- not almost, they 17 are always benign. 18 Number three is there is already a considerable amount of 19 evidence that they did not have any relevance to humans. 20 don't think it would have been appropriate to interpret at that 21 time that this posed a cancer risk to humans. 22 Q By that point in time, number one, we know that All right. They never evolve into malignant tumors. So I Let's go back -- I'm going to take you back 23 to today. 24 Dr. Bahnson's opinions. 25 about DuPont's reaction and conduct. We talked about diagnosis of the cancer and Then I took you back in time to talk Now I'm coming back to Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 206 of 307 PAGEID #: 5207 Vol. 12 1 today as we sit here in 2015. 2 I wanted to talk about Mrs. Bartlett and her medical 3 records you reviewed. 4 and the testimony that following Mrs. Bartlett's successful 5 surgery in 1997 with what you said was a Grade 1, Stage 1 6 tumor, that she has remained cancer free for almost 20 years 7 now? 8 A Yes. 9 Q Sir, do you have an opinion to a reasonable degree of Have you reviewed the medical records 10 scientific certainty as to whether it is likely or unlikely 11 that her kidney cancer will return at this point? 12 A This kidney cancer is very unlikely to return. She 13 continues to have now two risk factors for development of 14 possibility of a new kidney cancer, and that is she's both 15 obese and hypertensive at this point. 16 17 206 Q At the time -- Let me slow you down a few steps. I want to make sure we get this clear. 18 With regard to her prior tumor that was removed in '97, 19 are you saying it is likely or unlikely to a reasonable degree 20 of medical certainty as to whether that tumor will come back? 21 A It's very unlikely. 22 Q Then you said she remains at risk for two factors of 23 getting a new kidney cancer. 24 MR. DOUGLAS: 25 THE COURT: What were you saying about that? Objecting to the previous question. Overruled. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 207 of 307 PAGEID #: 5208 Vol. 12 1 BY MR. MACE: 2 Q Continue. 3 A She not only continues to be obese, but she also has 4 developed hypertension. 5 of her original surgery, but now she is. 6 risk factors of her development of a new kidney cancer. 7 Q 207 She was not hypertensive at the time She has two major Doctor, with regard to that last topic, are you aware of 8 the evidence that C-8 has been filtered out of Mrs. Bartlett's 9 Tuppers Plains water since the spring of '06? 10 A Yes. 11 Q Do you have an opinion to a reasonable degree of 12 scientific certainty as to whether, sitting here today, 13 compared to the average person in the general United States 14 population, whether Mrs. Bartlett is at any increased risk of 15 kidney cancer from her past exposure to C-8? 16 A Well, given the gradual elimination -- 17 MR. DOUGLAS: 18 THE COURT: 19 Objection, Your Honor. I'll see you at side-bar. if you wish, ladies and gentlemen. 20 21 - - Thereupon, the following proceeding was held at side-bar 22 out of hearing of the jury: 23 THE COURT: 24 25 You may stand, of kidney cancer. So this goes to risk of future development Why is this improper? MR. DOUGLAS: He said he hasn't considered C-8 as a Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 208 of 307 PAGEID #: 5209 Vol. 12 We know she had exposure because she's not -- 1 risk factor. 2 it's undisputed she is -- 3 THE COURT: 4 ever a risk factor. 5 6 7 8 The problem is he didn't believe .05 was MR. DOUGLAS: say. 208 That is inherent in what he was going to This is what was excluded. MR. BILOTT: This goes directly to what was the problem with the specific causation. 9 THE COURT: I'm with you on this. I think you're 10 right, because otherwise to cross him on this effectively, you 11 would have to get back in the opinion that was excluded. 12 this needs to be excised as well. 13 MR. PAPANTONIO: One other thing. We intend to file a 14 motion to excuse the sleeping juror at the break. 15 Court to review it, if you would. 16 17 THE COURT: How does that sound? MR. PAPANTONIO: 19 THE COURT: 21 22 23 24 25 I'd like the Why don't we address this at five o'clock. 18 20 So That's fine. We're not going to do anything with him now. MR. MACE: He's been fairly attentive, I thought, this afternoon. MR. DOUGLAS: He missed three quarters of what's happened so far. MR. MACE: That's not accurate. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 209 of 307 PAGEID #: 5210 1 THE COURT: 2 MR. MACE: 3 Yes. 209 I thought there was much more interim relief that can be done. 4 5 Vol. 12 It sounds like you're opposed to this. THE COURT: Let's do this. At five o'clock, we'll address this. 6 (Back in open court.) 7 THE COURT: 8 BY MR. MACE: 9 Q Mr. Mace, you may continue. Dr. Cohen, before I wrap up, were all the opinions that 10 you gave to me today made to a reasonable degree of scientific 11 certainty? 12 A Yes. 13 Q And do you charge for your time? 14 A Yes. 15 Q What is your hourly rate? 16 A Six hundred dollars per hour. 17 18 19 20 21 22 23 MR. MACE: I have nothing further for you at this time. THE COURT: mid-afternoon break. This would be a good time for our We'll be in recess for 15 minutes. (Recess taken from 2:52 to 3:05.) THE COURT: All right. The defendants may call their next witness. 24 MR. PAPANTONIO: 25 THE COURT: Your Honor, may we approach? If you'd like. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 210 of 307 PAGEID #: 5211 1 2 3 4 Vol. 12 - 210 Take a stand by your seats, and I'll see you in just a moment, ladies and gentlemen. (Discussion at side-bar as follows:) MR. PAPANTONIO: We would like to move to strike all 5 of the testimony that was just put on by this particular 6 witness to preserve our record. 7 witness who did not make it past summary judgment. 8 witness that did not make it through a Daubert evaluation. 9 He went -- A, this was a B, it was a He's come into court, and he is now -- he's now created 10 another idea of spontaneous -- I suppose it's the idea that 11 there is some spontaneity to the process of cancer. 12 There are experts that we could have brought had we 13 known that this was going to occur. 14 There is no way to correct this problem. 15 to say things that are completely on the edge that would never 16 withstand a Daubert test. 17 situation, Judge, the only thing we can do is move to strike 18 the testimony to preserve the record. 19 20 21 THE COURT: We now are under a cloud. He has been allowed And so we are -- we are in a Well, this is what I think my earlier opinions parsed through. In the abstract, if this were -- if the defense had the 22 burden of proof that obesity was the cause, you'd lose -- I 23 think -- from my ruling. 24 would be the issue. 25 causation. Maybe you don't concede that that Their burden, though, isn't to prove It's the plaintiff's to prove. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 211 of 307 PAGEID #: 5212 1 Vol. 12 - 211 The defendant -- I called this person a bocce ball, if 2 you'll remember. 3 told that there is no opinion that obesity was a causal factor. 4 All they know is that this can be used to try to discredit your 5 claim that C-8 is the causative factor. 6 objection. 7 8 That's what he's for. I note it. MR. MACE: And the jurors were So, I get the It's preserved, but we'll go forward. While we're here, we want to make sure we proffer and I don't forget that, if allowed -- 9 THE COURT: 10 MR. MACE: 11 THE COURT: 12 MR. MACE: What he would have said if not struck. Thank you, sir. Yes. If allowed, he would have testified to all 13 of the opinions reflected on his report and all of the things 14 that have been in our briefs. 15 THE COURT: And do that when you need to, but I want 16 to put on the record here, so both sides can use this, anything 17 I've excluded up to this point in motions in limine are 18 preserved. 19 right ahead. 20 21 22 But if you want to make more record with it, go MS. NIEHAUS: Your Honor, does that count, as well, for -- I mean, we were going to proffer Rettos, for example. THE COURT: Anything that I've stricken -- and that 23 would be Rettos, and I haven't -- I've stricken most of 24 Flaherty -- that's all preserved. 25 MR. MACE: Thank you. Okay? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 212 of 307 PAGEID #: 5213 1 MR. PAPANTONIO: Vol. 12 - 212 The only other thing that I just want 2 to make clear, we're going to the issue, also, of spontaneous 3 replication. 4 experts who think that is completely voodoo. 5 no -- we have no ability to get a witness in here for that. 6 7 That becomes very important, because there are MR. MACE: Well, let me just note for the record that Dr. Bahnson acknowledged that that occurs. 8 THE COURT: 9 (Back in open court.) 10 THE COURT: 11 And now we have witness. 12 All right. Thank you. I misspoke. We're not calling a new We're going to have a cross-examination of Dr. Cohen. So, with that, Mr. Douglas, you may proceed. 13 MR. DOUGLAS: Thank you, Your Honor. 14 - - - 15 CROSS-EXAMINATION 16 BY MR. DOUGLAS: 17 Q. Good afternoon, Dr. Cohen. 18 A. Good. 19 Q. Very good. How are you today? Thank you. 20 I just have a few questions for you. 21 You were very critical of Dr. Bahnson both with respect 22 to his qualifications and the way he went about reaching his 23 conclusion regarding the cause of Ms. Bartlett's renal cell 24 carcinoma just a few moments ago during direct examination. 25 Right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 213 of 307 PAGEID #: 5214 1 2 3 A. Vol. 12 - 213 About his qualifications regarding causation, not his qualifications regarding his abilities as a surgeon. Q. Okay. So, you took issue with his qualifications to 4 render an opinion on causation and then the way in which he 5 did, in fact, go about reaching his conclusion. 6 right? 7 A. Yes. 8 Q. Okay. 9 10 Do I have it So, you say you are in a better position to render an opinion than Dr. Bahnson on those subjects -- on that subject, right? 11 A. Yes. 12 Q. You're in a better position than Dr. Bahnson, the doctor 13 who treated Mrs. Bartlett for nearly a decade; is that what 14 you're telling us? 15 16 17 A. Again, with regard to causation, yes; not with regard to her clinical management. Q. You're in a better position than the doctor who treated 18 her for ten years, who's written textbooks, who's written 50 19 chapters and textbooks, or edited chapters and textbooks, over 20 150 articles on cancer -- including articles on cancer, who's 21 treated thousands of patients and had to make life-and-death 22 decisions, not sitting in a laboratory looking at specimens 23 under a microphone -- under a microscope, but making life-and- 24 death decisions on the front lines of the James Cancer 25 Hospital, where his decision as to what may have caused Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 214 of 307 PAGEID #: 5215 1 Vol. 12 - 214 somebody's cancer might make the difference between life and 2 death, that's the Dr. Bahnson we're talking about that you're 3 in a better position than? 4 A. His decisions at the time of surgery and treating the 5 patient are not based on causation. 6 I'm not questioning. His abilities as a surgeon 7 I've known Dr. Bahnson for more than 20 years. 8 served on panels with him, but his abilities in causation -- 9 and his publications are not on causation -- I'm in a better 10 11 I've position than he, because -Q. Doctor, you haven't treated a patient -- 12 THE COURT: 13 MR. MACE: 14 THE COURT: 15 Wait. One moment. Your Honor, -The answer wasn't finished. Go ahead and finish your answer. 16 MR. DOUGLAS: Sorry. 17 THE WITNESS: Okay. 18 With regard to causation, I am better trained and in a 19 better position than he is. 20 not dealt with causation issues. 21 that. 22 BY MR. DOUGLAS: 23 Q. He has treated patients. He has He hasn't been trained in Than Dr. Bahnson, who makes life-and-death decisions and 24 gives a treatment plan to patients that sometimes and often 25 involves decisions that are based on what caused a patient's Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 215 of 307 PAGEID #: 5216 Vol. 12 1 2 3 cancer in the first place? A. In this instance, that clearly was not the case, as his deposition -- his first deposition was -- 4 Q. Just yes or no, sir. 5 A. I can't answer it yes or no without putting it in 6 7 context. Q. So, you haven't treated a patient, face to face, with 8 renal cell carcinoma since your residency in 1975; isn't that 9 true? 10 A. Yes, that's true. 11 Q. We're going to put you on this list, this chronology. 12 That would be way back here (indicating), in 1975, the 13 last time you treated a patient, face to face, like Carla 14 Bartlett, with renal cell carcinoma, right? 15 A. Correct. 16 Q. Gerald Ford was the president. The Brady Brunch, I 17 think, was on television, as was pointed out by defense 18 counsel. 19 treated a patient -- That's how long ago it was since you've actually 20 A. Correct. 21 Q. -- for renal cell carcinoma. 22 patients directly. And you still don't see You see their specimens, correct? 23 A. Most of the time, that's correct. 24 Q. And when we're talking about specimens, we're talking 25 215 about a surgical slide, right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 216 of 307 PAGEID #: 5217 Vol. 12 I get the gross specimen and the slides. 1 A. No. 2 Q. Okay. You're talking about you're in the laboratory, or 3 in your office? 4 the specimens? 5 A. Where do you look at the surgical slides and The specimens, themselves, are received in a grossing 6 room, which is part of the operating suite. 7 come either to my office or to the resident's office or to a 8 reading room. 9 Q. And the slides So, you can't ask a specimen -- you can't take a history 10 from a specimen. 11 took a history from Ms. Bartlett, an actual patient, but you 12 can't take a history from a specimen, right? 13 that? 14 A. history. 16 you a history. Q. You've been critical of the way Dr. Bahnson You don't do Most of the time -- most aspects, you can't take the 15 17 There are some aspects that, yes, a slide will give You can't ask a specimen on a microscopic slide did your 18 brother, did your uncles, did your aunts have kidney cancer. 19 You can't do that. 20 21 22 23 A. 216 You don't do that. Not usually, but if a genetic analysis is involved, I am involved with that. Q. But you're critical of the way in which Dr. Bahnson took a history, right? 24 A. Yes, I am. 25 Q. But you don't do that? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 217 of 307 PAGEID #: 5218 Vol. 12 1 A. I do not. 2 Q. You ever hear the expression "a back-seat driver"? 3 A. I'm not a back-seat driver. 4 Q. I didn't ask you if you were. 5 I just asked you if you ever heard the expression. 6 A. I have heard the expression. 7 Q. You don't see patients with Von Hippel-Lindau Syndrome 8 217 in an office, face to face, right? 9 A. Correct. 10 Q. So, Dr. Bahnson testified that, in his years of 11 experience, his 30-plus years of experience of treating cancer 12 patients and other patients, he understands the clinical signs 13 and symptoms of patients with Von Hippel-Lindau, and they 14 present with unusual physical characteristics. 15 that part of his testimony? Did you read 16 A. Yes. 17 Q. So, when you're looking at a slide under a microscope in 18 your laboratory, Doctor, back in Nebraska, you don't see the 19 physical presentation. 20 slide doesn't display for you the physical features or the 21 facial features of the patient, right? 22 A. You don't see the -- you can't -- the The slide itself doesn't. We frequently are given the 23 history of it from the patient, though, as part of the 24 evaluation. 25 Q. Okay. But you do not take a history. You just told us Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 218 of 307 PAGEID #: 5219 Vol. 12 1 that. 2 A. 3 4 218 I do not take the history, except sometimes the genetic aspects. Q. You do not see the patient, and so you don't have an 5 opportunity to observe the patient and see whether or not they 6 have the physical signs, the clinical signs, the facial 7 features and other unique symptoms of something like Von 8 Hippel-Lindau syndrome, right? 9 10 11 12 A. Only if a photograph is provided to us, which frequently is. Q. You frequently get a photograph with the specimen; is that what you just said? 13 A. Yes. 14 Q. And you make no treatment decisions with respect to 15 16 these patients; you're just making a diagnosis? A. We're part of a treatment plan, frequently, as a 17 presentation at a tumor board, which is where the urologist, 18 the clinical oncologist, radiotherapist and the pathologist get 19 together and discuss cases. 20 Q. You're not the captain of the ship. The treating 21 physician is the captain of the ship and makes the ultimate 22 decision and listens to persons like yourself, the pathologist 23 or radiologist, other subspecialties. 24 physician is the one who takes all of the different 25 subspecialties and makes a decision for what is going to happen And the treating Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 219 of 307 PAGEID #: 5220 Vol. 12 1 with respect to treatment. 219 Right? 2 A. That's correct. 3 Q. And you rarely find yourself in the position of being 4 the captain of the ship, the person who is ultimately 5 responsible for the treatment of a patient. Correct? 6 A. That's correct. 7 Q. So, you're not an oncologist, correct? 8 A. That's correct. 9 Q. You are not a uro-oncologist like Dr. Bahnson, correct? 10 A. That's correct. 11 Q. You're not a surgeon? 12 A. That's correct. 13 Q. You've never performed a nephrectomy, right? 14 A. I assisted in nephrectomies in medical school and 15 residency. I've never done one myself. 16 Q. Okay. 17 A. A long time ago. 18 Q. And you're not an epidemiologist? 19 A. I have experience with epidemiology, but I'm not an 20 21 So that would, again, be back in the 1970s? epidemiologist. Q. And these -- I believe you cited six, if my count is 22 right -- one, two -- five or six -- I might be off by one -- 23 studies that talked about an association or risk or causation, 24 whatever you want to call it, between obesity and renal cell 25 carcinoma, right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 220 of 307 PAGEID #: 5221 Vol. 12 That was some of the articles that I reviewed. 1 A. Yes. 2 Q. Okay. 3 A. Probably 20 and a few more reviews. 4 Q. Okay. 5 A. They are. 6 Q. -- for the most part? 7 A. Yes. 8 Q. And there's a meta-analysis? 9 A. Including meta-analyses, yes. 10 Q. And the meta-analysis, just so we're clear, is just a 11 review. 12 studies, right? 13 A. Out of -- out of a total of 20? And those are epidemiology studies, right -- It has no original data. actually is new data. 15 published or analyzed data. Q. It's just a review of other It's a statistical evaluation of multiple studies. 14 16 Right. 220 It It's just a composite of previously So, you know -- being that you're not an 17 epidemiologist, sir, you know, and our jury heard, that DuPont 18 has a whole epidemiology department. 19 A. You know that, right? I do not know if they have a department. 20 have epidemiologists involved. 21 department. I know they I don't know if it's a whole 22 Q. Okay. 23 A. Yes. 24 Q. And you are not one of them? 25 A. Correct. But you know they have epidemiologists? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 221 of 307 PAGEID #: 5222 1 Q. Vol. 12 And you know, sir, because you read his report, that 221 2 DuPont hired, like you -- your only connection to this case, by 3 the way, is that you're hired by a law firm, right? 4 A. That's correct. 5 Q. There are many doctors who, over the course of years, 6 have treated Ms. Bartlett, right? 7 A. Yes. 8 Q. And you read their medical records, right? 9 A. Yes. 10 Q. And, by the way, not a one said a word about obesity 11 having one iota or anything to do with her renal cell carcinoma 12 in all of the records you reviewed, correct? 13 14 15 16 17 18 19 20 21 22 23 A. Her medical records didn't give any evaluation of her causation. Q. And, Doctor, you know, because you read his report, that the defendant hired, like yourself, -MR. MACE: Objection, Your Honor. May we approach? THE COURT: Well, I haven't heard the whole question yet, but we will. You may stand by your seats, if you wish, ladies and gentlemen. (Discussion at side-bar as follows:) 24 THE COURT: 25 MR. DOUGLAS: Let me get the whole question first. That the defendant hired an expert in Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 222 of 307 PAGEID #: 5223 1 Vol. 12 epidemiology, Dr. Weed, whose report he read and whose 2 testimony he opined on at his deposition. 3 4 THE COURT: 222 So, it's the absence of him testifying is what you want to get into? 5 MR. DOUGLAS: 6 THE COURT: 7 MR. MACE: Yes. What's your position? My position is, one, I have to object at 8 that point because I can't unring a bell. 9 interrupted counsel. 10 So that's why I I apologize for interrupting you, -- 11 MR. DOUGLAS: 12 MR. MACE: That's all right. -- I need to preserve. And, two, we 13 clarified this before. 14 because I was going to cross him with Dr. Siegel's testimony, 15 and Siegel didn't testify -- 16 MS. NIEHAUS: 17 MR. MACE: Their Dr. Bahnson got on the stand, Margulis. Margulis. I'm sorry. But we covered it in 18 one of the 8:30 conferences that it would be improper to cross 19 or use the testimony of an expert who wasn't going to be 20 presented. 21 and I expect the same rule to apply in my case. 22 23 24 25 So I was prohibited from doing that in their case, THE COURT: all. I don't remember that being the rule at What would you have preferred to ask Dr. Siegel about? MR. MACE: I would have preferred to ask Dr. Bahnson about Margulis' opinions which were inconsistent with Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 223 of 307 PAGEID #: 5224 Vol. 12 1 Bahnson's. 2 THE COURT: But Bahnson didn't rely on them. If he is 3 relying on somebody else's opinion, then he can be crossed on 4 it. 5 That's the difference. MR. MACE: But he's not relying on it for the opinions 6 you've left in the case. 7 opinions, Your Honor. 8 THE COURT: 9 MR. MACE: You've taken out 80 percent of his Well, you need to cover that, too, -Those went to the other article because it 10 was the general causation opinion that he was relying on 11 before, and that's gone. 12 223 MR. DOUGLAS: Just to be clear, the opinion is the 13 opinion that Dr. Weed expressed about obesity and renal cell 14 carcinoma, which was that he doesn't believe there is anything 15 in the literature that establishes -- 16 THE COURT: 17 MR. DOUGLAS: 18 MR. MACE: If it stays with that -That's where I'm going. Your Honor, if I could clarify, Dr. Weed 19 was not in the scope of his -- At deposition, it was not within 20 the scope of his work in this case or his opinions to analyze 21 the causation issue between obesity and renal cell carcinoma. 22 It was not within the scope of what he was doing. 23 Counsel asked him questions on something he wasn't even 24 within the scope of his thing -- of his assignment, his report 25 and his opinions. And we objected at the time, but we can't do Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 224 of 307 PAGEID #: 5225 1 Vol. 12 - 224 anything when Your Honor is not there to rule on it. But to 2 allow him to open a known door to create a scope that wasn't 3 even -- 4 THE COURT: 5 direct. 6 issue. The ruling is you can -- you stay on the obesity 7 MR. DOUGLAS: 8 THE COURT: 9 We got far, far into obesity here on That's where I'm staying. Not anything that would call into question the issue of the rejected opinion by this doctor. 10 MR. DOUGLAS: 11 THE COURT: 12 (Back in open court.) 13 THE COURT: 14 MR. DOUGLAS: 15 BY MR. DOUGLAS: 16 Q. Staying on obesity. Okay. You may continue. Thank you, Judge. So, you know, because you read his report and we 17 discussed him at your deposition when I questioned you, that 18 the defendant hired an outside expert like yourself, a person 19 who is an epidemiologist, and a well regarded one at that, 20 Dr. Weed. Right? 21 A. Yes. 22 Q. In fact, you would agree with me that Dr. Weed, who has 23 authored many textbooks/articles on this subject of cause and 24 effect between an exposure and a disease like obesity and 25 cancer or smoking and cancer, that you referred to him as the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 225 of 307 PAGEID #: 5226 Vol. 12 1 2 guru of cause and effect? A. He is one of the gurus. 3 people that published on this. 4 Hill in 1964 or '5. 5 6 225 Q. There are certainly many other And the ultimate guru was Dr. But this is -- but this guru is the one that this defendant hired for this case, Dr. Weed, right? 7 A. Yes. 8 Q. And, sir, I played you a portion of his testimony that I 9 10 11 12 13 14 had taken. Do you recall that happening at the deposition, your deposition, when I questioned you? A. I -- I recall you reading some of it. I don't remember if it was played or not. Q. We actually played it. And we're happy to play it again if you'd like. 15 A. That's fine. 16 Q. And do you recall that it was Dr. Weed's opinion and 17 testimony that he had done an exhaustive search, like you, an 18 exhaustive search on the subject of obesity and renal cell 19 carcinoma and found nothing in the literature to establish that 20 it is generally accepted, not just five or six articles or 20 21 articles or 21 articles. 22 literature from his exhaustive search on the subject to 23 establish that it is generally accepted that obesity is a -- 24 not a risk factor -- a cause of renal cell carcinoma. 25 remember that? He found nothing in the scientific Do you Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 226 of 307 PAGEID #: 5227 1 2 3 4 5 6 7 A. Vol. 12 I don't remember his exact words, but his overall evaluation was that it's a major risk factor. An attributable risk could be a -- was a major cause -a cause. MR. DOUGLAS: Could we play that testimony, please? (Thereupon, the following video clip was played:) Question: So you don't know whether it's generally 8 accepted or not as to whether obesity is a causal association 9 for renal cell carcinoma? 10 Answer: 11 Question: 12 Answer: You don't know? I didn't say that. Do you know? What I said was that what the literature that 13 I've reviewed says is that obesity is a risk factor for renal 14 cell carcinoma. 15 statement laying claim to causality. 16 17 226 Question: And I also said that I have not seen a Okay. And do you think you did a pretty thorough review of the literature on the subject? 18 Answer: 19 Question: Reasonably thorough, yes. So would it be fair to say that, based on 20 your research, it is not generally accepted that renal -- that 21 obesity is considered a causal risk factor for renal cell 22 carcinoma? 23 Answer: 24 statement. 25 risk factor. It's like I said before, I haven't seen that I would say that it is generally accepted it's a Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 227 of 307 PAGEID #: 5228 Vol. 12 1 Question: 2 Answer: 3 But not a causal risk factor? I haven't seen that in the -- in the literature. 4 BY MR. DOUGLAS: 5 Q. 6 (Continuing) Sir, do you recall when I played that portion of the deposition for you at your deposition? 7 A. Vaguely, yes. 8 Q. And you disagreed with Dr. Weed's testimony at that 9 time. 10 11 I'm happy to play your answer to that question from the deposition. A. No. I was just disagreeing with that statement to an 12 extent, the part that he hasn't seen it written. 13 in my earlier testimony today, there is several publications, 14 including the textbooks in Urology and the American Cancer 15 Society, that list it as a cause. 16 Q. As a risk factor. 17 A. No. 18 Q. We will go back. But as we saw They link it as a cause. And, by the way, there is -- you do 19 recognize there is a difference between risk factor and 20 causative risk factor, right? 21 A. That's correct. 22 Q. Thank you for answering the question. 23 24 25 227 And they list it under cause. I have another one for you. A risk factor is something that's associated with increased risk of a disorder, correct? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 228 of 307 PAGEID #: 5229 Vol. 12 1 A. Correct. 2 Q. And did you hear Dr. Bahnson's bow-tie analogy 3 describing what an association is? 4 his testimony? 5 A. I did, yes. 6 Q. Okay. 7 228 Did you read that part of And just because two things are associated with one another doesn't mean that one causes the other, right? 8 A. That's correct. 9 Q. And a causal risk factor is a factor that, with further 10 evaluation, can be identified as actually being causative, 11 correct? 12 A. Correct. 13 Q. Okay. So, you -- you brought, and I have them here, 14 five or six articles to the attention of our jurors out of a 15 total of 20 or so articles on the subject, some of which have 16 actually used the word "cause," right? 17 A. That's correct. 18 Q. Okay. Now, there were thousands and thousands of 19 articles in the scientific literature, the universe of 20 scientific literature, tens of thousands; aren't there? 21 A. Overall, probably millions. 22 Q. Millions. 23 Great! And there are dozens of reputable journals out there, 24 right? 25 A. Yes. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 229 of 307 PAGEID #: 5230 1 Q. Vol. 12 - 229 And each one of those journals publishes articles every 2 month or every few months or every year, and the amount of 3 literature continues to grow and grow and grow, right? 4 A. Yes. 5 Q. And, for example, there are thousands of articles on 6 smoking being a cause of lung cancer, for example, right? 7 A. I don't know how many, but lots, yes. 8 Q. It's probably in the thousands by now, right? 9 A. Could be, yes. 10 Q. Okay. 11 12 13 14 And there are hundreds, if not thousands, of articles on asbestos causing lung cancer or asbestosis, right? A. Certainly several hundred. I don't know about thousands. Q. Okay. And I'll get back to your 20 articles, only six 15 of which you have shared with the jurors, but -- and that's a 16 good thing when people contribute to the scientific and medical 17 literature, right? 18 A. Yes. 19 Q. Okay. It's a place for dialogue and debate of ideas, 20 and it's for the purpose of advancing science and medicine. 21 Agree? 22 A. Yes. 23 Q. And if you -- out of that -- you could find -- in the 24 scientific literature, if you look at this millions of 25 articles out there in the universe, you can find basically Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 230 of 307 PAGEID #: 5231 1 Vol. 12 - 230 anything linking almost anything to cancer in the peer-reviewed 2 literature, right, if you look? 3 4 5 A. I think it's somewhat limited, but there are certainly a large number of items that are listed. Q. 6 7 No. Well, I was curious, so I took a look. MR. DOUGLAS: And, you know -- Let's have the oxygen-causes-lung-cancer article published? 8 And I'll get to your six or seven. 9 May I approach? 10 THE COURT: 11 BY MR. DOUGLAS: 12 Q. You may. Do you see the title of this article? Do you see the 13 title is Lung Cancer Incidence Decreases With Elevation, 14 evidence for oxygen as an inhaled carcinogen? 15 I'm reading from? Do you see where 16 A. Yes. 17 Q. And a carcinogen is something that causes cancer, right? 18 A. Correct. 19 Q. And this is saying evidence of oxygen, what we're 20 breathing right now, as an inhaled carcinogen. 21 right? 22 A. Yes. 23 Q. One second. 24 25 How about citrus? citrus causes melanoma? Did I read that Have you read the articles about how Have you read those articles -- Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 231 of 307 PAGEID #: 5232 Vol. 12 1 A. No, I haven't. 2 Q. -- in the peer-reviewed journals? 3 A. No. 4 MR. DOUGLAS: 5 Can we get that one, please? May I approach, Your Honor? 6 THE COURT: 7 BY MR. DOUGLAS: 8 Q. 9 231 You may. The Journal of Clinical Oncology, that's a peer-reviewed journal, right? 10 A. Yes. 11 Q. It has to pass peer-reviewed muster, right? 12 A. Yes. 13 Q. It's got to show some scientific validity, right? 14 A. Yes. 15 Q. You see where it says: Conclusion. Citrus consumption 16 was associated with an increased risk of malignant melanoma in 17 two cohorts of women and men? Do you see that? 18 A. Yes. 19 Q. Have you seen this before? 20 A. I have not seen this article, no. 21 Q. How about the American Journal of Epidemiology? 22 prestigious journal, right? 23 A. It's a good journal on epidemiology, yes. 24 Q. Okay. 25 A MR. DOUGLAS: Can we have the Vitamin D and pancreatic Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 232 of 307 PAGEID #: 5233 Vol. 12 1 cancer? 2 May I approach? 3 THE COURT: 4 BY MR. DOUGLAS: 5 Q. 6 2010. 7 You may. Here, we have the American Journal of Epidemiology, Anticancer Vitamins du Jour, the ABCEDs so far. If you go -- flip the page, you'll see it says: The 8 only association observed in this set of six analyses was a 9 troubling one. 10 The risk of pancreatic cancer was doubled for those in the highest quintile of circulating Vitamin D levels. 11 Do you see where I'm reading from? And have you ever 12 heard about Vitamin D causing pancreatic cancer or being 13 associated with it? 14 232 A. I've seen several articles that have been published 15 relating low Vitamin D levels associated with various cancers, 16 including pancreas, but higher Vitamin D levels tend to be 17 protective. 18 those. 19 Q. Okay. It's in contrast to this. Right. This is in contrast to Somebody in a peer-reviewed journal has 20 published an article in the Journal of Epidemiology that there 21 is an association between increased levels of Vitamin D and 22 pancreatic cancer. 23 right? 24 A. 25 That got into peer-reviewed literature, This was an editorial. reviewed. So it would not have been peer Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 233 of 307 PAGEID #: 5234 Vol. 12 - 233 1 Q. Okay. 2 A. Correct. 3 Q. Someone expressing an opinion. 4 A. Correct. 5 Q. Debate and dialogue is what scientific literature is all 6 about. 7 A. Correct. 8 Q. You put your theory out there, you do your research, and 9 10 11 It's an editorial, correct? you see -- sometimes your theories get debunked, sometimes they're accepted, and sometimes nobody cares. A. Correct. Right? Because reproducibility is part of cancer, 12 that's why I think the strength of obesity is a very strong 13 one. 14 Q. Have you heard, sir, in your five or six articles out of 15 the 20 -- I appreciate that we didn't have to go through all 16 20 -- I thank you for that -- but we've also heard about there 17 are studies out there showing cell phones cause brain tumors. 18 Right? 19 A. 20 21 22 There is one study that reported that. And subsequent studies have found no association. Q. Sometimes studies show there isn't an association. Sometimes there are studies that show no associations. 23 A. That's correct. 24 Q. In fact, that meta-analysis you talked about, if 25 you -- you know that some of the studies that it cited, of Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 234 of 307 PAGEID #: 5235 1 Vol. 12 these 141 studies that it claims to have reviewed, or 2 articles -- you're looking at me like I'm wrong. 3 4 5 6 7 8 A. That was for all obesity-related cancers. 234 For renal cancer, there's only been about 20 or 25 studies. Q. Great! So, sir -- that's not a lot of studies, 20 to 25. A. Given the size of some of those studies, that's a lot of investigation -- 9 Q. Okay. 10 A. -- with very consistent findings. 11 Q. Sir, what you didn't tell the jury about that Well, sir, -- 12 meta-analysis is that many of those studies found no 13 association. 14 A. No, that's not true. 15 Q. That's not true? 16 A. Of all the studies investigating obesity and renal cell 17 cancer, I believe there's only been one that did not find a 18 statistically significant elevated -- 19 20 Q. There's actually more than that with respect to renal cell carcinoma, because I went out and found them. 21 A. I have not seen them. 22 Q. Sir, you talked about this 2008 Renehan study. 23 That's the meta-analysis. 24 A. Yes. 25 Q. All right. That's the one that used the buzz words Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 235 of 307 PAGEID #: 5236 Vol. 12 1 "Bradford Hill criteria" and "causation," right? 2 A. Correct. 3 Q. Sir, that -- by the way, they were looking at 20 4 5 6 7 8 9 10 11 235 different cancers, not just renal cell carcinoma. A. A large number of cancers. I don't think it was 20, but it was a large number. Q. It was -- it was 19 others, 20 including renal cell carcinoma. A. Okay. They did a broader analysis of the relationship of obesity with cancer. Q. So, when you told our jurors that it looked at 141 12 articles, only a small portion of that, as you just 13 acknowledged, had to do with renal cell carcinoma. 14 mean to suggest to our jurors, in other words, that there are 15 141 studies out there looking at renal cell carcinoma and its 16 association with obesity? 17 A. That's correct. 18 Q. Okay. You didn't Let's just clear that up. But it wasn't -- I brought this out on 19 cross-examination that, of the 141 that study looked at, you're 20 saying there's only 20 that dealt with renal cell carcinoma? 21 22 23 A. I never mentioned the 141 studies of epidemiology of renal cell carcinoma and obesity. Q. I mentioned 20 to 25. Sir, did you bother to go -- in that article, in the 24 Renehan article, it cites these -- it's a review of other 25 studies, right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 236 of 307 PAGEID #: 5237 Vol. 12 1 A. Correct. 2 Q. Okay. And they don't -- you cannot determine the name 3 or the study authors from the article itself, the one that 4 Mr. Mace flashed up on the screen, right? 5 A. They only list some of the studies, not all of them. 6 Q. You have to go to a web appendice to find the actual 7 8 9 236 study names, right? A. Correct. That's typical of literature today as that -- a lot of journals don't want you to publish it and take up 10 space, but they have what's called supplemental information, 11 which is available on the web, which, if you're interested, you 12 can find that information then. 13 14 15 Q. And you looked at all hundred and forty -- you went on the web and looked at the web -A. No. I looked at the cases that I could find that were 16 related to renal cell. 17 done, in the past, the relationship with endometrial cancer and 18 breast cancer and colon cancer. 19 Q. I didn't look at all the others. I had Sir, what I'm asking you is whether or not you went on 20 the website of the journal that published the Renehan article, 21 the meta-analysis, -- 22 A. I did not. 23 Q. -- and looked up all of the studies that it cited, that 24 25 it was based on. A. I did not. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 237 of 307 PAGEID #: 5238 1 Q. 2 see -- Vol. 12 And so you did not see, because I did -- you did not 3 MR. DOUGLAS: 4 May I approach? 5 THE COURT: 6 BY MR. DOUGLAS: 7 Q. 8 237 Hiatt? You may. I mean, you're familiar with the phrase "garbage in, garbage out"? 9 A. Yes. 10 Q. Okay. And we've already established that -- so what 11 this Renehan summary was doing was looking at other articles 12 and studies, right? 13 A. Correct. 14 Q. And you didn't bother to go on the web to go pull those 15 actual studies -- you just told us that, right? -- and look at 16 them? 17 A. 18 19 20 I only concentrated on the ones that were related to renal cell carcinoma. Q. You did not go on the web to pull those articles, correct? 21 A. That's correct. 22 Q. Okay. So you did not see, then, for example, the Hiatt 23 study, renal cell carcinoma and Thiazide use, a case-control 24 study -- 25 A. Correct. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 238 of 307 PAGEID #: 5239 1 2 Q. Vol. 12 - 238 -- where it stated -- and this is one of the articles here that that study you came to talk about is based on. 3 A. Uh-huh. 4 Q. So, it says: 5 We found a statistically -- sorry. This is like getting sea sick. 6 We found a statistically nonsignificant relation between 7 BMI and renal cell carcinoma. 8 Do you see that? 9 A. Yes. 10 Q. So, you did not read that for yourself until I pointed 11 12 that out to you just now, correct? A. I did not look this up from the website. I had seen 13 this previously from a review of the literature that had been 14 cited by the IARC and a number of other organizations. 15 Q. It's not one of the 20 you say you relied on? 16 A. I believe this is actually the one that is negative. 17 Q. It is not -- this is not one of the 20 you cited in your 18 report? 19 A. 20 I didn't cite all 20 of them in the report. I only cited a significant number of them. 21 Q. The positives? 22 A. This is the one that was negative. 23 one. 24 Q. 25 today. I didn't cite this Did not cite it and did not mention it to our jurors If I'm not mistaken, you did not mention this on your Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 239 of 307 PAGEID #: 5240 Vol. 12 1 2 3 4 239 direct testimony. A. I didn't on direct, and I don't remember if I included it in the report or not. Q. I'd have to see my report. You mentioned the American Cancer Society. And I 5 believe one of the articles you showed our jurors was written 6 by a member of the American Cancer Society. 7 that? 8 A. Yes. 9 Q. Okay. Do you recall And you know they have a website where they 10 inform the public -- where they keep the public informed about 11 statistics and data, prognosis, definitions, and information 12 related to cancer, correct? 13 14 A. They have a website for a lot of information, you're correct. 15 16 MR. DOUGLAS: Can we have that printout of the website? 17 May I approach, Your Honor? 18 THE COURT: 19 BY MR. DOUGLAS: 20 Q. You may. I'm going to put this up on the ELMO. This is printed 21 out from the American Cancer Society, I'll represent to you, 22 printed out yesterday from their website. 23 24 25 "Kidney Cancer (Adult) Renal Cell Carcinoma Overview," do you see that? A. Yes. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 240 of 307 PAGEID #: 5241 1 Q. Vol. 12 - 240 If you go to the page that I folded over on the corner, 2 you'll see there is a paragraph entitled "What are the Risk 3 Factors for Kidney Cancer." 4 A. Yes. 5 Q. And do you see where it says, We do not -- we do not yet 6 know exactly what causes kidney cancer, but we do know that 7 certain risk factors are linked to the disease? 8 that? 9 A. 10 Yes. publication. Do you see That's in contradiction to their other But, yes, I see that. 11 Q. There is debate and dialogue on the subject, right? 12 A. Well, it's from the same source in two different places. 13 Q. Sir, this is the source that is currently -- this is the 14 source that is currently on the American Cancer Society's 15 website, right? 16 A. Correct. 17 Q. Yes or no? 18 A. -- that they send to physicians. 19 Q. Yes or no will do. 20 A. That's fine. 21 Q. -- to address anything you would like to address. 22 A. You're correct. 23 Q. The World Health Organization, you're familiar with the 24 25 And this is the document -- You're correct. World Health Organization? A. Yes. You'll have plenty of opportunity -- Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 241 of 307 PAGEID #: 5242 1 Q. Vol. 12 And they are an organization that looks out for the 2 interests of the health of the population of the world, 3 correct? 4 A. That's their purpose, yes. 5 Q. And they also issue information, disseminate 6 information, publish information that has to do with disease, 7 right? 8 A. Correct. 9 Q. Including cancer? 10 A. Correct. 11 Q. Including kidney cancer, right? 12 A. Correct. 13 Q. Okay. 14 15 And including special -- and including the obesity, so-called, epidemic, right? A. That's correct. 16 MR. DOUGLAS: 17 THE COURT: 18 BY MR. DOUGLAS: 19 Q. May I approach, Your Honor? You may. If you'll go to page -- you'll see, here, I'm going to 20 put up on the screen, in a second -- you'll see the "Who, 21 Obesity and Overweight." 22 This is updated January 2015. Do you see that? Do you see that? 23 A. Yes. 24 Q. And it talks about key facts. 25 "Media centre." Worldwide obesity has more than doubled since 1980, do you see that? 241 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 242 of 307 PAGEID #: 5243 Vol. 12 1 A. Yes. 2 Q. Okay. 3 And if you go to the next page, you'll see what are common health consequences of overweight and obesity. 4 A. Yes. 5 Q. Raised BMI is a major risk factor for noncommunicable 6 diseases such as -- and it goes to say some cancers: 7 Endometrial, breast and colon. Do you see that? 8 A. Yes. 9 Q. It doesn't say kidney cancer in there, does it? 10 A. Here, it does not. 11 Q. Now, sir, getting back to Dr. Bahnson, we've talked Here, it does not. 12 about risk factor, and we've talked about causative risk 13 factor. 14 his opinion is that obesity -- first of all, did I hear you 15 correctly say that Dr. Bahnson doesn't -- did not acknowledge 16 that obesity is a known risk factor for renal cell carcinoma? And you understand that all Dr. Bahnson is saying in 17 A. He stated that he did not think it was. 18 Q. Okay. 19 A. I believe so. 20 Are you sure you read his testimony? MR. DOUGLAS: Okay. Could you put up Dr. Bahnson's 21 list of risk factors for renal cell carcinoma, the slide he 22 used on his direct testimony? 23 BY MR. DOUGLAS: 24 Q. 25 says: And, sir, do you see, right here -- excuse me -- it "Risk factors for kidney cancer." 242 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 243 of 307 PAGEID #: 5244 Vol. 12 1 This is a slide that we used -- 2 A. I see that. 3 Q. -- for Dr. Bahnson's direct testimony when he was 4 sitting right in that chair. 5 factors that he listed -- And you see all these risk 6 A. Yes, but in his discussion -- 7 Q. Yes or no? 8 A. I see the list. 9 Q. We're talking about his testimony at trial, right? 10 A. In his testimony, he dismissed obesity as a -- Do you see all these risk factors? 11 MR. MACE: 12 THE COURT: 13 There is two problems here. 14 the witness. 15 There will be an opportunity for Mr. Mace to ask you some 16 additional follow-up questions. 17 limited questions being asked. 18 He won't let the witness -Wait. Wait. There's two problems here. First of all, you're interrupting But some of these questions are pretty simple. So please stay with the Re-ask the question. 19 MR. DOUGLAS: 20 BY MR. DOUGLAS: 21 Q. Yes, sir. Do you see the number of risk factors that Dr. Bahnson 22 described for our jurors and displayed on this chart? 23 see them? 24 25 243 A. He listed these on the chart. described. Do you This isn't what he Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 244 of 307 PAGEID #: 5245 Vol. 12 - 244 1 Q. As known risk factors, right? 2 A. This is what he listed as -- the risk factors that have 3 4 been reported is not what he described. Q. Sir, do you see where it says obesity is one of the risk 5 factors, on Dr. Bahnson's slide, in a slide of risk factors for 6 renal cell carcinoma? 7 A. I -- 8 Q. Do you see it? 9 A. Yes. 10 Q. Thank you. 11 Yes? It's on his list of risk factors. And so you understand that all that Dr. Bahnson is 12 saying with respect to obesity is -- and I think I'm going to 13 get at what you're saying -- he doesn't consider this a major 14 risk factor, a serious risk factor, for renal cell carcinoma 15 based on his 30 years of practice, based on all the articles 16 that he's kept abreast over the many decades in the scientific 17 literature? 18 opinion? 19 20 21 A. You understand that's all he said? That's his His opinion was that he didn't think -- was -- he did not refer to any articles Q. 22 Sir, I didn't ask you about articles. Are you sure you read his testimony? 23 A. I read his testimony. 24 Q. Did you read the part where he testified that he has 25 read and kept abreast of all the literature, including the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 245 of 307 PAGEID #: 5246 Vol. 12 - 245 Both at this 1 literature on renal cell carcinoma on obesity? 2 trial he testified to that and at his deposition, which you 3 also read. 4 MR. MACE: 5 MR. DOUGLAS: 6 THE COURT: 7 THE WITNESS: Objection. Did you miss that part? Overruled. I'm sorry? 8 BY MR. DOUGLAS: 9 Q. Did you miss that part of his testimony? 10 A. Would you ask it again? 11 Q. Did you miss the part of the testimony where he told our 12 jurors that he has kept abreast of the scientific literature, 13 that it's extremely important, or words to that effect, and 14 that he has kept abreast of the literature with respect to the 15 causes of renal cell carcinoma, because that's what he does for 16 a living? 17 of the testimony where he said he kept abreast of the 18 scientific literature? He saves people's lives. And did you read that part 19 A. I did see that that's what he said. 20 Q. And that he's read the scientific literature with 21 respect to obesity and renal cell carcinoma and testified he is 22 not very impressed by it because, he said, it is flawed by many 23 well-known limitations in epidemiology? 24 of his testimony? 25 A. I did see that in his testimony. Did you read that part Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 246 of 307 PAGEID #: 5247 Vol. 12 1 Q. 2 246 Thank you. So, all he's saying is, based on his review of the 3 literature and his years of experiences, he doesn't put a lot 4 of merit into those folks who say obesity, like yourself, is a 5 cause of renal cell carcinoma. 6 all he's saying, right? He disagrees with that. 7 A. That's what he's saying. 8 Q. And you disagree with it. 9 A. And I disagree vehemently. 10 Q. Strongly disagree with it, right? 11 A. I strongly disagree with it. 12 Q. Okay. 13 right? 14 A. 15 That's And doctors and scientists disagree all the time, We do disagree. And usually that means that it's based on sound science. 16 Q. Just answer my question yes or no. 17 A. I did. 18 Q. You can answer my question yes or no. It has to be explained further. And the question 19 is, scientists and medical doctors disagree all the time? 20 you can't answer that with a yes or no, let us know that you 21 can't. 22 A. The disagreement has to be based on sound science. 23 Q. Okay. If And you have an opinion that your position about 24 obesity is based on sound science and that Dr. Bahnson's 25 opinion is not based on sound science. Is that it in a Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 247 of 307 PAGEID #: 5248 Vol. 12 1 nutshell? 2 A. That's a nutshell. 3 Q. Okay. So, we talked about the fact that you're not an 4 oncologist or epidemiologist. 5 things that you do do and that you are. 6 7 Let's talk about some of the If I can switch gears, you testify in court. A. I have in some, yes. 9 Q. That's something you do. And you've made hundreds of thousands of dollars doing it, right? 11 A. Over a span of about ten years, yes. 12 Q. Okay. 13 You get involved in litigation cases, right? 8 10 247 And, in fact, you've testified several times for the company that makes the drug Actos, right? 14 A. That's correct. 15 Q. So you've testified for pharmaceutical companies, right? 16 A. Yes. 17 Q. Okay. 18 And they were the companies, in those cases when you testified, that were getting sued, right? 19 A. Correct. 20 Q. And they were getting sued by folks who had cancer. 21 the claim was that the drug caused their cancer, right? 22 A. That's correct. 23 Q. And you came to court and/or deposition or wrote a 24 25 report saying the drug didn't cause their cancer, right? A. In most of the instances, yes. Not always. And Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 248 of 307 PAGEID #: 5249 Vol. 12 - 248 Every time you've testified in an Actos case -- how many 1 Q. 2 times? 3 A. In an Actos, yes. 4 Q. Have you ever testified in court and said that the 5 defendant's drug or chemical was a cause of the claimed injury? 6 A. 7 court. 8 Q. My question is court, sir. 9 A. Not in court. 10 Q. Okay. 11 Not in court. When I've said that, it hasn't gone to And, sir, you've also testified for DuPont in that kidney cancer case, right? 12 A. Correct. 13 Q. That was a case pending in Tampa, Florida. 14 testified, in 2010, just about five years ago. 15 for DuPont, right? And you You testified 16 A. That sounds like about the right time frame. 17 Q. So this isn't the first time you've done work for 18 DuPont, right? 19 A. That's correct. 20 Q. Okay. 21 A. That sounds familiar, yes. 22 Q. Okay. And that was the Ramirez vs. DuPont case, right? And you went -- you came to court, just like you 23 came to court, and said essentially the same, identical thing. 24 You claim that obesity was a cause of cancer and that the 25 chemical manufactured by DuPont, which was not C-8 -- that the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 249 of 307 PAGEID #: 5250 1 Vol. 12 - 249 chemical had nothing to do with this person's kidney cancer. 2 It was a farmer that was using pesticides. 3 about right? 4 5 6 A. I testified that I was -- that his chemical exposure was not -- I did not get into obesity in that case. Q. Oh, really. Okay. Well, I understand it's five years 7 ago, but didn't you testify -- 8 MR. DOUGLAS: 9 10 Does that sound Where is the transcript? BY MR. DOUGLAS: Q. It's the Ramirez case, vs. E.I. du Pont, Case No. 11 8:09-cv-321, 10th of September, 2010, Tampa, Florida. 12 testified on that date at 9:24 a.m. You Do you remember that? 13 A. Yes. 14 Q. And do you remember testifying, sir, that the chemical 15 manufactured by DuPont had nothing to do with what caused 16 Mr. Ramirez's kidney cancer, of which he ultimately died? 17 you remember testifying to that? 18 A. I don't remember that he died, but I do remember that I 19 testified that the chemicals that he was exposed to didn't 20 cause the two tumors that he had. 21 22 Q. Do And, sir, you argued that his obesity was the cause, or contributed -- let me phrase it the way you phrased it. 23 You argued in that case, specifically, that obesity can 24 cause cancer and that -- and you argued that it contributed to 25 the plaintiff's cancer in that case, as opposed to the DuPont Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 250 of 307 PAGEID #: 5251 Vol. 12 1 250 chemical in that case, right? 2 A. Correct. 3 Q. Doctor, you look at a couple thousand pathology slides a 4 year, right? 5 A. Cases, yes. 6 Q. Okay, cases. Probably tens of thousands of slides. So you looked -- and you told me, at your 7 deposition, and I believe it was in March -- that you looked 8 at -- you had 2,300 pathology reports last year, in other 9 words, 2014? 10 A. Yes. 11 Q. Twenty-three hundred reports? 12 A. Approximately, yes. 13 Q. Okay. And at least 50 to a hundred times, in your 14 report, you opined as to the cause of a patient's -- of a 15 person's cancer, right? 16 A. Correct. 17 Q. And, sir, you do do that? You do opine with respect to 18 cause on occasion, at least 50 to a hundred times last year 19 alone, right? 20 A. Correct. 21 Q. And you have never written and reported in any pathology 22 report that obesity was the cause of anybody's cancer; is that 23 right? 24 A. I have not put that in any pathology reports. 25 Q. Sir, the only time you've ever opined that obesity is a Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 251 of 307 PAGEID #: 5252 1 Vol. 12 cause of cancer, or cause of someone's cancer, was in 2 litigation as an expert like right here or like right in the 3 Ramirez case, right? 4 A. Also -- 5 Q. Not also. 6 A. No, it's not the only time. 7 That's just yes or no. I've also -- I've also done it in some panels on kidney cancer that I've been a part of. 8 9 251 MR. DOUGLAS: Can we play page 114, lines 1 through 7, please? 10 BY MR. DOUGLAS: 11 Q. Now, my question is, do you recall being asked this 12 question and giving this answer that Mr. Wolfe is going to play 13 for us now. 14 (Thereupon, the following video clip was played:) 15 Question: If I understand correctly, the only time 16 you've ever opined that obesity had something to do with 17 someone's cancer is when you were hired as an expert to testify 18 in litigation; is that true? 19 Answer: Yes. 20 BY MR. DOUGLAS: 21 Q. Do you recall giving that answer to that question? 22 A. I do. 23 Q. Yes or no, that's all I'm asking. 24 A. I recall that answer. 25 Q. Yes or no, sir? (Continuing) It was -- Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 252 of 307 PAGEID #: 5253 Vol. 12 1 A. It was incorrect at that time. 2 3 MR. MACE: Your Honor, can he be allowed to explain his answer? 4 5 THE COURT: Well, he'll have to give a yes or no first. 6 Let's go back. 7 Yes or no, and then take your time to explain your 8 9 10 11 252 Re-ask the question. answer. BY MR. DOUGLAS: Q. Sir, did you give that answer to that question at your deposition that we just heard just now? 12 A. Yes. 13 Q. Thank you. 14 A. Can I explain now? 15 Q. Yes. 16 A. I was wrong at that time because I had forgotten the 17 times I'd been on kidney cancer panels where I'd also discussed 18 the issue of obesity. 19 20 Q. Did there come a time that you received your transcript to review? 21 A. Yes. 22 Q. Did you make a correction to that, to that wrong answer? 23 A. I was told only to make corrections of spelling and 24 25 grammar, not on content. Q. Who told you that? So, I didn't change the content. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 253 of 307 PAGEID #: 5254 1 2 A. Vol. 12 That's what I've been told whenever I've corrected transcripts. 3 Q. How many times have you testified at a deposition? 4 A. Probably a half a dozen or so. 5 Q. And trial? 6 A. Counting this one, it would be seven or eight. 7 Q. How many litigation cases have you reviewed, over the 8 course of your years, where an individual has sued a company, 9 or whatever, and you were asked -- how many cases have you 10 11 12 13 looked at, individual cases? A. Probably 15 to 20, of which I've been on the defense most of the time, but on the plaintiff once. Q. 14 Once. I'm not surprised. Sir -- 15 MR. MACE: 16 THE COURT: 17 253 Your Honor, objection. Wait. Wait. That's a -- that last comment, that was not a question. 18 BY MR. DOUGLAS: 19 Q. Sir, and every time you've testified in court, it's been 20 for a defendant like DuPont or the company Takeda, that makes 21 Actos, right? 22 A. In court, it's been for the defense, correct. 23 Q. How much -- you said you're charging 600 an hour? 24 A. That's my current rate, yes. 25 Q. And what other work have you done for DuPont besides Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 254 of 307 PAGEID #: 5255 1 Vol. 12 - 254 coming to court and testifying that obesity causes cancer and 2 it wasn't -- and it wasn't the chemicals -- that obesity causes 3 cancer and it wasn't the chemicals made by DuPont? 4 many -- how many -- how much work have you done for them? 5 6 A. How As I can remember, I've been involved with two research projects that were sponsored by DuPont. 7 Q. I'm sorry. 8 A. That I can remember, I've been involved with two 9 I didn't hear the answer. research projects that were sponsored by DuPont. 10 Q. Okay. 11 A. They paid the university for that. 12 Q. But you did the work? 13 A. My laboratory and I did the work, yes. 14 Q. And raising revenue -- when you say -- hear me out. And they paid you for that, right? I did not -- 15 When you say they paid the university, that's an important part 16 of university life, of academia. 17 important that you raise money to justify your existence, for 18 lack of a better way to say it, for the university, right? 19 A. When you're a professor, it's Most of what I have to justify is for -- from clinical 20 duties, where I raise most of the monies. 21 essentially an add-on that, fortunately, I've been able to 22 raise a fair amount with research, but it's not required. 23 Q. Research is Sir, I don't believe you mentioned -- now, we heard that 24 Dr. Bahnson was the chair of the urology department over at 25 James Cancer Hospital for a number of years. You were a Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 255 of 307 PAGEID #: 5256 1 Vol. 12 department chair at one point at your university, right? 255 2 A. Correct. 3 Q. And then you were asked to step down? 4 A. The dean and I concluded that it was time for me to step 5 6 down because we disagreed on the direction things were going. Q. Yeah. You were not appreciated by the dean of the 7 school, and it was -- you were either going to be discharged or 8 you voluntarily step down. 9 court in these Actos trials, right? 10 A. No. And that's what you've said in open What I've said is that the dean and I, after 11 discussion, decided that it was best for someone else to become 12 chair. Basically, I was -- 13 Q. Let's put it this way: The dean and yourself didn't see 14 eye to eye for over a year, and it became obvious that it was 15 time for you to resign, right? 16 A. That's correct. 17 Q. And you resigned so that the university would avoid the 18 embarrassment of taking away your chairmanship, right? 19 that's how it worked? I mean, 20 A. That's not correct. 21 Q. Now, before you came here to court, did you spend some 22 time meeting with the lawyers for DuPont? 23 A. Yes. 24 Q. And before you came to testify at your deposition in 25 March, you spent some time meeting with the lawyers for DuPont, Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 256 of 307 PAGEID #: 5257 Vol. 12 - 256 1 right? 2 A. Yes. 3 Q. And how much time have you spent, since your deposition, 4 5 speaking with and/or meeting with DuPont lawyers? A. I've spoken, by phone, with them probably 15 to 30 6 minutes over several phone calls because they were very brief 7 requests for information. 8 an hour and a half together. And then, last night, we spent about 9 Q. Where was that? 10 A. At the -- one of their offices, I believe. 11 Q. And where are you staying? 12 assume. 13 A. I'm staying at the Courtyard Hotel. 14 Q. And are they paying for your hotel? 15 A. Yes. 16 Q. Do you get to eat meals on their expense account? 17 A. Not very good meals, but some meals, yes. 18 Q. There are some great places here in Columbus to eat. 19 A. I haven't had the opportunity. 20 Q. Before your deposition, you spent some time with the 21 lawyers, right? 22 that is, right? You are staying in town, I You went over -- with the lawyers for DuPont, 23 A. Yes. 24 Q. And you talked to them about your report, right? 25 A. Yes. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 257 of 307 PAGEID #: 5258 1 2 3 4 5 6 Q. Vol. 12 - 257 You talked about what should be in the report and not in the report, right? A. They gave me a broad outline of what they thought I needed to address in the report, yes. Q. Okay. And so you spent time speaking with them before your report and before your deposition, right? 7 A. Yes. 8 Q. How many hours did you spend in preparation for your 9 deposition testimony? 10 A. With the attorneys? 11 Q. With the lawyers for DuPont. 12 A. With the lawyers for DuPont, a few hours. 13 I don't remember exactly. 14 Q. On how many occasions? 15 A. I believe we met either the day before or the morning of 16 the deposition. 17 Other times, it was by phone, because I needed to get some 18 additional information. 19 20 Q. Okay. I don't remember exactly, but for a few hours. So you've had an ongoing dialogue with the lawyers from DuPont, right, about the case? 21 A. Generally, sure. 22 Q. And how many lawyers did you meet with last night? 23 A. Mr. Mace and Mr. Fazio. 24 25 MR. DOUGLAS: with my colleagues? Okay. May I have a moment to confer Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 258 of 307 PAGEID #: 5259 Vol. 12 1 THE COURT: 2 MR. DOUGLAS: 3 You may. Thank you. (Whereupon, there was a brief interruption.) 4 MR. DOUGLAS: 5 have for you for now. 6 THE COURT: 7 MR. DOUGLAS: 8 Now, sir, those are all the questions I I'm going to -Thank you, Mr. Douglas. I'm going to clear out some space for you, Mr. Mace, and turn him back to you. 9 MR. MACE: 10 THE COURT: 11 MR. MACE: May I proceed, Your Honor? You may proceed. Thank you, sir. 12 - - - 13 REDIRECT EXAMINATION 14 BY MR. MACE: 15 Q. 16 Doctor, there's only one profession with worse handwriting than doctors', and that's attorneys. 17 18 258 Can you see or, more importantly, read what I've written on the board, sir? 19 A. Yes. 20 Q. Is there a difference between those terms? 21 A. Yes. 22 Q. What is it? 23 A. Etiology is cause. Diagnosis is the name of the disease 24 or what -- the disease the person has. 25 how the patient is going to be taken care of. And the treatment is Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 259 of 307 PAGEID #: 5260 1 Q. Vol. 12 - 259 In terms of your expertise, what is it that's different 2 about your expertise than Dr. Bahnson's expertise on those 3 terms? 4 A. I specialize scientifically on etiology, clinically on 5 diagnosis. He specializes clinically in diagnosis and 6 treatment. And that's also his area of research, is primarily 7 in treatment and biomarkers, which is another issue. 8 9 10 Q. And are you criticizing Dr. Bahnson, at all, in terms of his diagnosis of what disease Mrs. Bartlett had or his treatment of that disease? 11 A. No. 12 Q. Okay. 13 Is your -- is your point more in terms of the specific expertise on etiology and cause? 14 A. Correct. 15 Q. Okay. Counsel asked you some questions about Von 16 Hippel-Lindau disease. 17 disease to have faulty genes that can cause kidney cancer? Do you need to have Von Hippel-Lindau 18 A. No. 19 Q. You talked to us about the VHL gene? 20 A. Correct. 21 Q. And you can have defects in that gene without having Von 22 23 Hippel-Lindau disease? A. Correct. Basically, as you're DNA is replicating, it's 24 going to make mistakes. 25 be in the VHL gene. And occasionally those mistakes will And if both aspects occur in a kidney Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 260 of 307 PAGEID #: 5261 Vol. 12 1 2 260 cell, then you'll get kidney cancer. Q. Did you understand that DuPont had retained a number of 3 different experts to do a number of different things in the 4 case? 5 A. Yes. 6 Q. Did you understand your scope to be looking at specific 7 causation for kidney cancer? 8 A. Correct. 9 Q. And did you understand that different experts were doing 10 different things? 11 A. Yes. 12 Q. Did you read the part of Dr. Weed's testimony where he 13 said it wasn't within the scope of his assignment to analyze 14 the relationship between obesity and kidney cancer? 15 A. Yes. 16 17 MR. MACE: Your Honor, may we have a side-bar, briefly? 18 THE COURT: 19 Yes. You may stand if you wish, ladies and gentlemen. 20 (Discussion at side-bar as follows:) 21 MR. MACE: Your Honor, I think counsel has opened the 22 door to a number of things, among them -- I would intend to ask 23 the following two questions and followups if the Court allows 24 it: 25 peer-reviewed literature only refers to an association, that Sir, did you understand counsel to be saying that if the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 261 of 307 PAGEID #: 5262 1 Vol. 12 - 261 factor can be disregarded as a cause, to which I anticipate he 2 will say yes. 3 that refers to C-8 as a cause of kidney cancer, to which I 4 think he'll say no. Are you aware of any peer-reviewed literature 5 MR. DOUGLAS: 6 THE COURT: 7 That's clearly off the radar. The second question, I'm not going to permit. 8 The first one, is that a prelude to the second one? 9 MR. MACE: It is, Your Honor, to show -- if I could 10 just make my record -- to show that -- counsel, as they did 11 with their expert, is trying to use two completely different 12 methodologies, one to analyze obesity and a completely 13 different one to analyze C-8. 14 THE COURT: Well, because this is not -- in other 15 words, we've let in other issues about standards besides the 16 .05 parts per billion, but that was only with regard to 17 DuPont's conduct. 18 This witness has next to -- he said a little bit about 19 DuPont's conduct, but not in regard to these two questions. 20 I find the door has not been opened. 21 22 MR. MACE: Okay. (Back in open court.) 23 BY MR. MACE: 24 Q. 25 So Sir, counsel cut off some of your answers. I wanted to find out what your answer was going to be on a few of them. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 262 of 307 PAGEID #: 5263 Vol. 12 - 262 Have you ever given an opinion to a defendant, somebody 1 2 who is a defendant in a lawsuit, that you thought their 3 chemical caused the disease? 4 A. Yes, I have. 5 Q. Okay. 6 C-8? 7 A. No. 8 Q. Okay. 9 panels. 10 A. Now, the Ramirez case, was the chemical at issue You say you've been involved in tumor board What are those? Tumor boards are where various clinicians who are 11 involved with a particular case or type of case get together 12 and discuss the clinical management of the individual patient. 13 So, for a urologic pathology, the urologist, the pathologist, 14 the radiologist, radiation therapist and medical oncologist 15 will all be there, along with residents and fellows, to discuss 16 how to manage cases. 17 Q. And in the practice of your medicine and your research 18 outside of courtrooms, outside of the litigation field, do you 19 regularly participate in those types of boards and have you 20 over the years? 21 A. Yes. 22 Q. And on those boards outside of litigation context, have 23 you had discussion and given the opinion that obesity was the 24 cause of kidney cancer? 25 A. Yes. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 263 of 307 PAGEID #: 5264 1 2 Q. Okay. Vol. 12 - 263 And did you, in fact, talk about the tumor boards at your deposition, page 110? 3 A. I don't remember, but I may have. 4 Q. All right. 5 6 MR. MACE: Could we bring up page 152 of the morning two transcript, September 22nd? 7 BY MR. MACE: 8 Q. 9 Counsel asked you about Bahnson's testimony. Among the testimony you reviewed from Dr. Bahnson, did you review this testimony: Your personal opinion is that 10 smoking is not a risk factor for kidney cancer? 11 personal opinion is that hypertension is not a risk factor for 12 the development of kidney cancer? 13 is that obesity is not a risk factor for kidney cancer? 14 15 16 17 True. True. Your Your personal opinion True. Was that the testimony you're referring to? A. That's what I was trying to say, yes, is that, even though he listed them, he basically dismissed them. Q. Okay. Counsel showed you an article. Before I go 18 there, in your discussion with me on direct examination, did 19 you mention the fact that there were 20 to 25 studies, and all 20 but one of them showed a statistically significant relationship 21 between kidney cancer and obesity? 22 A. 23 Yes, a very consistent finding in the literature. MR. MACE: 24 BY MR. MACE: 25 Q. All right. Could I get the ELMO, please? Counsel showed you this study, and you said Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 264 of 307 PAGEID #: 5265 Vol. 12 1 that's the exception? 2 A. Correct. 3 Q. This is a '93 study? 4 A. Yes. 5 Q. Whereas the ones we were going through on direct are 6 264 2006, 2009, 2010 and later? 7 A. Correct. 8 Q. And this has to do with thiazide? 9 A. Yes. This is a diuretic that's used in the treatment of 10 hypertension. 11 whether it's the thiazide or the hypertension that was really 12 the risk factor that was involved here. 13 conclude it's the hypertension, and not the thiazide. And, since this study, it's been questioned And most people now 14 Q. 15 list? 16 A. Yes. 17 Q. And did you see thiazide on there anywhere? 18 A. It -- not recent -- I don't remember it being there, no. 19 Q. All right. In any event, you've seen Mrs. Bartlett's medicines In terms of the size of these studies, you 20 were showing us things with many thousands. 21 Ninety women involved in this? 22 A. Correct. 23 Q. Okay. 24 A. It's small. 25 Is that a small, or a large, study? And, also, it's a case-control study. this is a retrospective analysis, not prospective. And So Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 265 of 307 PAGEID #: 5266 1 Vol. 12 prospective are much more -- provide much stronger evidence 2 than the retrospective study. 3 4 Q. We're not going to take the time to explain that right now. 5 6 All right. 265 Counsel showed you the American Cancer Society renal cell carcinoma overview. 7 A. Yes. 8 Q. And he referred you to the page, but he didn't show you 9 the language. 10 What are the risk factors for kidney cancer? 11 body weight. 12 getting kidney cancer. A very overweight person has a higher risk of Right? 13 A. Correct. 14 Q. American Cancer Society. 15 cancer? 16 statement: 17 of developing renal cell cancer, true, -- Do we know what causes kidney Risk factors for kidney cancer, and the same People who are very overweight have a higher risk 18 A. True. 19 Q. -- in your opinion? 20 A. It's listed under their section on cause. 21 Q. And counsel made a timing. 22 Lifestyle, Was that published within the last week or so? 23 A. Yes. 24 Q. I'm losing track of the days, but -- National Cancer 25 Institute, do you recognize them as an authoritative source? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 266 of 307 PAGEID #: 5267 Vol. 12 1 A. Yes. 2 MR. DOUGLAS: 3 THE COURT: 4 266 is overruled. Objection. Outside the scope. You'll have an opportunity. The objection You get the last shot here. 5 BY MR. MACE: 6 Q. National Cancer Institute, September of '15. What is 7 known about the relationship between obesity and kidney cancer? 8 Obesity has consistently -- has been consistently associated 9 with renal cell cancer, which is the most common form of kidney 10 cancer. 11 Now, consistency, was that one of the things that you 12 said is important in terms of the Bradford Hill criteria and 13 making a causal statement? 14 A. Yes. 15 Q. Okay. 16 Consistency is one of his criteria. The Hakimi study, you've looked at that? 17 A. Yes. 18 Q. Do you consider that authoritative? 19 A. It's a very good study, yeah. 20 Q. 2013, right? 21 A. Yes. 22 Q. Obesity increases risk for clear-cell renal cell 23 Fairly recent? carcinoma, right? 24 A. Yes. 25 Q. More than 40 percent of renal cell cancers attributable Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 267 of 307 PAGEID #: 5268 1 to obesity as measured by body mass index. 2 both induce and promote carciogenesis. 3 mechanism of action, right? 4 A. Correct. 5 Q. Attributable. 6 7 8 Vol. 12 - 267 These processes can It talks about the What does attributable, in the context of these studies, mean? A. Attributable refers to how many cases would be caused by that factor. So, in this case, it's obesity. 9 Q. Macleod, are you familiar with this article? 10 A. Yes. 11 Q. Consider it authoritative? 12 A. Yes. 13 Q. Now, it says: 14 Confirmed several previously identified risk factors for renal cell cancer, including obesity, right? 15 A. Yes. 16 Q. More importantly, obesity and smoking are commonly 17 linked to several cancers, including renal cell cancer. 18 this study, morbidly obese individuals, BMI 35 or greater, were 19 at 71 increased risk for renal cell cancer compared to normal 20 weight individuals. 21 In Now, first of all, do you agree with that? 22 A. Yes. 23 Q. And was Mrs. Bartlett above, or below, the 35? 24 A. She was between 40 and 41 at the time of diagnosis. 25 Q. So, the -- according to these statistics, it would be Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 268 of 307 PAGEID #: 5269 Vol. 12 1 even greater than the 71 percent? 2 A. Correct. 3 Q. Counsel was challenging you about the word "cause." 4 We already looked at this in your direct, right? 5 A. Correct. 6 Q. American Cancer Society. 7 268 Additional risk factors include obesity, which causes an estimated 30 percent of cases. 8 American Cancer Society using the word "cause"? 9 A. Correct. 10 Q. We don't need to keep going through these, sir. 11 Despite counsel's questioning, does it remain your 12 opinion, to a reasonable degree of medical certainty and 13 scientific certainty, that obesity is a cause of renal cell 14 cancer? 15 A. Yes. 16 Q. And do you stand by your opinions where you were 17 critical not of Dr. Bahnson's diagnosis and treatment but about 18 his etiology opinions? 19 A. Yes. 20 MR. MACE: 21 THE COURT: 22 23 24 25 Nothing further at this time. Thank you. Recross examination. MR. DOUGLAS: Just a few. Thank you. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 269 of 307 PAGEID #: 5270 Vol. 12 1 - - - 2 RECROSS-EXAMINATION 3 BY MR. DOUGLAS: 4 Q. You did make a distinction between the two terms, 5 earlier today, in my questioning, between risk factor and 6 causative risk factor. 7 A. Yes. 8 Q. Okay. 9 Do you remember our discussion on that? And just to get back to the American Cancer Society, September 29, 2015 -- I think that was yesterday -- it 10 might have been this morning -- we've been here awhile -- it 11 says -- it does say: 12 kidney cancer. 13 linked to the disease. 14 A. We do not yet know exactly what causes But we do know that certain risk factors are Do you see that? Yes. 15 MR. DOUGLAS: 16 THE COURT: May I approach the board? You may. 17 BY MR. DOUGLAS: 18 Q. So, your expertise is etiology, right, -- 19 A. Yes. 20 Q. -- if you do say so yourself? 21 269 You're an expert in etiology, with all modesty? 22 A. I have written many times on it. 23 Q. And you're saying that, Dr. Bahnson, he is not an expert 24 25 in etiology, right? A. Correct. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 270 of 307 PAGEID #: 5271 1 2 Q. Vol. 12 You did not, speaking of etiology -- and etiology is 270 what is the cause, right? 3 A. Correct. 4 Q. You did not render an opinion on your direct examination 5 -- 6 MR. MACE: 7 THE COURT: 8 MR. MACE: 9 THE COURT: 10 11 Objection, Your Honor. One- or two-word basis? Can we approach? I'll see you at side-bar. You may stand by your seats, ladies and gentlemen. (Discussion at side-bar as follows:) 12 MR. MACE: Your Honor, he's about to ask him, I take 13 it, you didn't render an opinion on direct examination that 14 Mrs. Bartlett's kidney cancer was caused by her obesity. 15 clearly is his opinion. 16 17 MR. DOUGLAS: That That's not quite what I was going to say. 18 THE COURT: 19 MR. DOUGLAS: What were you going to ask? I was going to ask, you're an expert on 20 etiology, but you didn't render an opinion on a cause of this 21 person's cancer. 22 And let me point out that is exactly what's in the 23 Court's instruction. 24 possibly be prejudicial or improper? 25 MR. MACE: So how could that -- how could that Because it implies that he doesn't have an Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 271 of 307 PAGEID #: 5272 Vol. 12 He clearly has a very strong opinion, which we 1 opinion. 2 believe he should be allowed to give. 3 opening the door to that if you ask that question. 4 MR. DOUGLAS: admissible is not my doing. 6 THE COURT: Wait. 8 He didn't give one. 10 11 12 13 14 15 It's his doing. It's not that he doesn't have one. 7 give it. And we think you're But the fact that his opinion is not 5 9 271 He has one. He wasn't allowed to So, I mean, at a minimum, I would require you to say that. MR. DOUGLAS: That's how I'll phrase it: that he did not opine as to the cause on direct examination. THE COURT: That actually is covered in my instruction, more or less, that they've already heard. MR. DOUGLAS: I think I'm entitled to make that point 16 through the witness who is on the witness stand who has gone on 17 about how he's an expert. 18 MR. MACE: It's not an issue in dispute in the case, 19 Your Honor, much like some of your rulings on causation that 20 you haven't let us get into because it's not a fact in dispute 21 in the case, because you have ruled it out. 22 MR. DOUGLAS: 23 direct examination. 24 THE COURT: 25 It's a fact as to what occurred on Well, he -- you know, the thing is, he gave a lot of testimony about obesity; but he hasn't given Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 272 of 307 PAGEID #: 5273 1 testimony on an opinion because I excluded it. 2 he hasn't given. 3 4 Don't imply that he doesn't have one, though. MS. NIEHAUS: Doesn't the question imply that he doesn't have one, though? 5 MR. MACE: 6 THE COURT: 7 (Back in open court.) 8 BY MR. DOUGLAS: 9 Q. 10 Vol. 12 - 272 So you can ask It sure does. No. No. That's what we're going to do. Getting back to etiology, you're the expert in etiology, if you do say so yourself, right? 11 A. I am an expert, yes. 12 Q. Okay. You did not render an opinion -- you did not give 13 an opinion on direct examination as to what the etiology was 14 of -- 15 THE COURT: 16 BY MR. DOUGLAS: 17 Q. Give, not render. Rephrase the question. You did not give an opinion on direct examination as to 18 what was the etiology, in your area of expertise, of 19 Mrs. Bartlett's cancer, did you? Yes or no? 20 A. No. 21 Q. You did not give an opinion on redirect examination with 22 23 respect to the etiology of Mrs. Bartlett's cancer, right? A. That's correct. 24 MR. DOUGLAS: 25 THE COURT: Those are all the questions I have. Thank you, Doctor. You may step down. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 273 of 307 PAGEID #: 5274 Vol. 12 1 2 3 Who is your next witness? MR. MACE: The defendant calls Dr. Bruce Karrh by video deposition. 4 MR. PAPANTONIO: 5 THE COURT: 6 7 8 9 273 Judge, may we have a side-bar? Very briefly. Again, you may stand if you wish, ladies and gentlemen. (Discussion at side-bar as follows:) THE COURT: When all of you ask for a side-bar, I noticed the jurors are rolling their heads, seriously. So, I 10 mean, you know, if we could do these at breaks, I'd prefer it, 11 but let's go ahead. 12 MR. PAPANTONIO: The only reason I think I have to do 13 it now, Judge, I just want to put on the record the issue that 14 we raised already. 15 issue was already out on summary judgment. 16 summary judgment. 17 I'm moving to strike this testimony. This It was ruled out on The doctor's testimony didn't rise to Daubert quality of 18 admissibility at pretrial. 19 prejudiced by not being permitted to address this testimony by 20 our own experts. 21 22 THE COURT: You're going to have to back me up here. It's a long day in the trial here. 23 MR. MACE: 24 THE COURT: 25 The plaintiffs were fatally He's just repeating what he said -Yeah, but I want to know, the witness we're talking about is going to say what? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 274 of 307 PAGEID #: 5275 Vol. 12 He's talking about Dr. Cohen. 1 MS. NIEHAUS: 2 MR. MACE: 3 just repeating what he said. 4 THE COURT: 5 He is talking about this witness. He's I'll incorporate all of your remarks then to now -- 6 MR. PAPANTONIO: 7 THE COURT: 8 MR. PAPANTONIO: 9 274 Okay. That's fine. -- and make the same ruling as I did then. Okay. That's fine. I simply didn't know what the Court's preference was. 10 THE COURT: 11 Thank you. (Back in open court.) 12 THE COURT: 13 You may proceed. I mentioned to you the very first day, if we knick 20 14 minutes here, 20 minutes there, you'd be here a few extra days. 15 So, I know you don't prefer that. 16 five, if you don't mind. 17 see part of this deposition. 18 MR. MACE: Yes. So, with that, you may continue to I think it's only 37 minutes, or 19 thereabouts, Dr. Bruce Karrh. 20 THE COURT: 21 22 23 24 25 it. Yeah. So we'll go right up to I don't think we're going to finish We're going to go right up to five o'clock. Okay. You may proceed. (Thereupon, the video deposition of Bruce Karrh was played as follows:) - - - Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 275 of 307 PAGEID #: 5276 Vol. 12 1 BRUCE KARRH, 2 3 275 Having been first duly sworn as prescribed by law, was examined and testified as follows via deposition: 4 - - - 5 CROSS-EXAMINATION 6 BY MR. BILOTT: 7 Q. Would you state your name, please? 8 A. Bruce Karrh. 9 Q. Is that Dr. Bruce Karrh? 10 A. Yes. 11 Q. During what period of time were you employed by DuPont? 12 A. I was employed two different times. 13 work -- I have an M.D. degree. 14 MR. MACE: 15 THE COURT: I first went to Could you turn the volume up? If you'd like, you can start it again. 16 Q. Would you state your name, please? 17 A. Bruce Karrh. 18 Q. Is that Dr. Bruce Karrh? 19 A. Yes. 20 Q. During what period of time were you employed by DuPont? 21 A. I was employed two different times. I have an M.D. Degree. I first went to 22 work for DuPont in 1958, probably the end of May of 1958, until 23 the 1st of September of 1958, as a laboratory technician at the 24 Birmingham, Alabama, plant. 25 August the 1st of 1970, and was a full-time employee of DuPont Then I was reemployed by DuPont Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 276 of 307 PAGEID #: 5277 Vol. 12 1 2 until March 31st of 1996. Q. You say a full-time employee until March 1st of '96. 3 Did you maintain any sort of employment relationship with 4 DuPont after March 1st of 1996? 5 A. Not as an employee. 6 Q. In what way did you maintain any sort of relationship 7 276 with DuPont? 8 A. I have served as a consultant a few times for DuPont. 9 Q. What position did you hold with DuPont at the time that 10 you retired? 11 A. I was vice president, integrated health care. 12 Q. You were a corporate medical director for DuPont, 13 correct? 14 A. At one point in time. 15 Q. During what period of time? 16 A. From 1977 -- April, I think it was, of 1977, until April 17 of 1983. 18 Q. How did you first learn about your deposition today? 19 A. I was informed by counsel that I was to be deposed. 20 Q. Who was that? 21 A. It was an in-house counsel with DuPont, a gentleman 22 23 24 25 named John Bowman. Q. Was this through a telephone conversation, or written communication of some sort? A. Telephone conversation. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 277 of 307 PAGEID #: 5278 Vol. 12 1 Q. When was that; do you recall? 2 A. No, I don't. 3 Q. Was it within the last year? 4 A. Yes. 5 Q. Do you know whether anybody else other than Mr. Bowman 6 was on the telephone with you during that particular 7 conversation? 8 9 A. 277 To my knowledge, during that conversation no one else was on the phone except Mr. Bowman. 10 Q. 11 DuPont? 12 A. No. 13 Q. Had you asked Mr. Bowman to serve as your counsel during 14 At that particular point in time, were you employed by that -- when he called you on that particular date? 15 A. Not at that point in time. 16 Q. What did Mr. Bowman tell you during that telephone 17 18 conversation? A. He just told me that I was to be deposed in the case 19 that you referenced earlier and that they were looking for a 20 date and wanted to know what my availability was, what my dates 21 of availability were that might coincide with when the 22 deposition would be taken. 23 24 25 Q. And did he mention what the case was you were requested for a deposition in? A. Not by a title. He mentioned what it involved. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 278 of 307 PAGEID #: 5279 Vol. 12 1 Q. And what did he say it involved? 2 A. It involved a particular chemical substance, and it 3 4 5 6 7 8 9 10 278 involved a situation in West Virginia and Ohio. Q. And what particular chemical substance were you told it involved? A. A material that's called C-8, ammonium perfluorooctanoate. Q. How many such conversations had you had with Mr. Bowman prior to this particular telephone when he called to tell you you had been requested for a deposition? 11 A. I don't recall. 12 Q. More than one? 13 A. Yes, more than one. 14 Q. More than a dozen? 15 A. Mr. Bowman was DuPont in-house counsel that I had worked 16 with while I was working. 17 where he and I had worked together. 18 over the years involving a lot of different things. 19 We had a lot of other situations We had many conversations I don't recall specifically when he first mentioned to 20 me a C-8 lawsuit, but I know it was more than one. 21 know if it was a dozen. It could have been two. 22 been more than a dozen. I don't know. I don't It could have 23 Q. You mentioned you had had depositions before, right? 24 A. Yes. 25 Q. The most recent one being sometime earlier this year; is Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 279 of 307 PAGEID #: 5280 Vol. 12 1 that correct? 2 A. In January of '04. 3 Q. How many depositions have you participated in? 4 A. There have been several. 5 Q. More than a dozen? 6 A. Yes. 7 Q. More than two dozen? 8 A. Yes. 9 Q. More than three dozen? 10 A. Yes. 11 Q. What's your best estimate? 12 A. In the deposition in January, I was asked the same 13 question. 14 make 51. 15 16 279 Q. I don't know an exact number. And I guessed around 50 at that time. This would Were you ever compensated for your time during any of the depositions that you gave? 17 A. Yes. 18 Q. How many times were you compensated? 19 A. I'm compensated every time that I am deposed. 20 Q. At what rate are you compensated? 21 A. First, I get a pension from DuPont as an earned pension 22 that all employees, if they reach a certain amount of service 23 and age, are entitled to. 24 get an hourly rate of compensation, and it's $350 an hour, and 25 expenses. And so I get that pension. I also Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 280 of 307 PAGEID #: 5281 Vol. 12 - 280 And are you getting paid that rate for a deposition here 1 Q. 2 today? 3 A. Yes, I am. 4 Q. And who is paying that rate? 5 A. The DuPont Company. 6 Q. Do you currently own any DuPont stock? 7 A. Yes, I do. 8 Q. How much stock? 9 A. I have about 3,000 shares now. 10 Q. Has the amount of your DuPont stock fluctuated in any 11 significant degree over the last -- since you left your 12 employment at DuPont? 13 A. The number of shares -- 14 Q. Yes. 15 A. -- has decreased steadily, because I use that as ways to 16 17 fund my grandchildren's educations. Q. I'd like to go back to the depositions. You mentioned 18 you've participated in some -- I guess is it fair to say more 19 than 50 depositions? 20 A. I would say approximately 50. 21 Q. Okay. Did any of those prior depositions involve 22 anything to do with any perfluorinated chemicals or materials 23 of any kind? 24 25 A. I don't recall any of them dealing with perfluorinated chemicals. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 281 of 307 PAGEID #: 5282 1 2 Q. Vol. 12 I may be able to try to speed through this a little. Let me see if I understand this correctly. 3 You were a military physician for about three years? 4 A. Yes. 5 Q. And was that between about 1962 and 1965? 6 A. That's correct. 7 Q. And then where did you perform your services for the 8 9 military during that period of time? A. Well, I was first at Brook General Hospital in San 10 Antonio, Texas, for a year. 11 Medical Field Service School, also in San Antonio, for two 12 months. 13 Medicine, also in San Antonio, for three months. 14 Then I went to the U.S. Army Then I went to the U.S. Air Force School of Aerospace Then I went to the U.S. Army School of Aviation Medicine 15 in Fort Rucker, Alabama, for a month. 16 U.S. Army Primary Helicopter School in Mineral Wells, Texas, 17 from November of '63 until July of '65. And then I went to the 18 Q. Any other licenses or certifications of any kind? 19 A. I'm board certified. 20 Q. In what? 21 A. In occupational medicine, by the American Board of 22 281 Preventive Medicine. 23 Q. And when did you first obtain that certification? 24 A. 1977. 25 Q. Have you maintained that certification since that time Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 282 of 307 PAGEID #: 5283 Vol. 12 1 continuously? 2 A. Yes. 3 Q. In 1973, you were transferred to DuPont's Haskell 4 Laboratory for Toxicology and Industrial Medicine as Research 5 Manager in Environmental Sciences, correct? 6 A. Yes. 7 Q. With responsibility for industrial hygiene and 8 physiological evaluations, correct? 9 A. Yes. 10 Q. And following your work at Haskell, you were named 11 Assistant Corporate Medical Director in 1974? 12 A. Correct. 13 Q. And held that position for three years before becoming 14 medical director for DuPont, correct? 15 A. That's correct. 16 Q. During the time that you were medical director for 17 DuPont between 1977 and 1983, were you the top person at 18 DuPont, so to speak, for making medical decisions? 19 A. I was considered the top corporate medical person within 20 the company as far as decisions or policies or what else was 21 concerned. 22 282 Q. And when you became vice president safety, health and 23 environmental affairs in 1984, were you still the top person at 24 DuPont for medical decisions? 25 A. Yes. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 283 of 307 PAGEID #: 5284 1 Q. Vol. 12 What about when you became vice president integrated 2 health care? 3 making medical decisions? Were you still the top person at DuPont for 4 A. Yes. 5 Q. And you maintained that position from March of 1993 6 until when? 7 A. Until I retired in March, 31st, of 1996. 8 Q. Dr. Karrh, in your employment experience with DuPont, 9 10 11 12 283 did you become personally familiar with a chemical used by DuPont known as C-8? A. I have to ask you to define what you mean by personally. I became familiar with that chemical. 13 Q. When did you first hear of that chemical, if you recall? 14 A. It was in the late seventies, '79, plus or minus, when I 15 16 first became aware of C-8. Q. And is it fair to say that, during your employment 17 experience with DuPont, you were personally involved in the 18 medical decisions made by DuPont with respect to health hazards 19 -- 20 A. Yes. 21 Q. -- from C-8? 22 A. Yes. 23 Q. How do you recall C-8 first coming to your attention? 24 A. The first recollection I have of it is when the supplier 25 of the chemical, the 3M Company, provided DuPont with some Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 284 of 307 PAGEID #: 5285 1 Vol. 12 - 284 information that indicated that the particular chemical had -- 2 on a test they had run on rats, looked like it may have caused 3 some eye abnormality in the rats that had been subjected to 4 exposure to the chemical. 5 Q. Dr. Karrh, I'm going to hand you what's been marked as 6 Exhibit 10 and ask you to take a moment to look at that, and 7 tell me if you can identify what that is. 8 9 10 11 A. This is a letter written from me to F. E. French, dated June 16th, entitled "Fluorochemicals in Blood." Q. And, in fact, this particular memo that you -- you recognize that as your signature on the last page? 12 A. Yes. 13 Q. And a document you prepared while employed at DuPont? 14 A. Yes, it is. 15 Q. And you are providing a recommendation of some testing 16 to be done on DuPont workers based on information about 17 fluorochemicals in the blood, FC-143 in particular, correct? 18 19 20 A. That's correct, plus other unidentified fluorochemicals in the blood. Q. And, in fact, you say: "The medical division recommends 21 the following course of action for DuPont employees whose jobs 22 have potential for exposure to Telomer A and its non-polymeric 23 derivatives," right? 24 A. That's correct. 25 Q. Now, why were you making a recommendation to test Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 285 of 307 PAGEID #: 5286 1 2 3 4 Vol. 12 employees with potential exposure to the fluorochemicals? A. I think the letter stands for itself. If you'd like, I'll read the whole letter. Q. I'm just asking for your recollection of why you made a 5 recommendation to test employees for exposure to 6 fluorochemicals. 7 285 A. The first sentence starts off: 3M has reported finding 8 FC-143 plus other unidentified fluorochemicals in the blood of 9 potentially exposed workers. And then it goes on: Similar 10 tests have not been done on the general population, and medical 11 division recommends the following with jobs with potential 12 exposure to Telomer A. 13 reason was to see if our employees were showing the same thing 14 that 3M employees had shown. 15 Q. And that's Number 5. And the main Based on the information you had that there was C-8 16 being detected in 3M worker blood, you made a recommendation to 17 test DuPont workers, right? 18 A. That's correct. 19 Q. Knowing that this material was also in general It's in the previous -- . 20 population blood, why was there no recommendation made to 21 follow up and do further testing of general population blood? 22 A. At that point in time, we were trying to determine if it 23 was in the blood of our workers who would have the highest 24 potential exposure to the material in the workplace. 25 Q. What disclosures did DuPont make to anyone with respect Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 286 of 307 PAGEID #: 5287 1 2 Vol. 12 to the data showing C-8 in general population blood? A. 286 I don't recall DuPont making any disclosure as far as 3 that because the general population data was already in the 4 published paper that you showed me earlier, the Taves paper, 5 and 3M -- reference here to 3M was based upon that, according 6 to your summarization of it. 7 think DuPont had any reason to do anything right then until we 8 got some more data. 9 Q. So, I don't see any -- I don't And, again, what data did DuPont have at that time in 10 1979 to inform DuPont as to what, if any, safe level existed 11 for having C-8 in human blood? 12 A. I don't think we had any data that told us what was safe 13 or what was not safe. 14 us that C-8 was in the blood, and we were undertaking then a 15 pretty extensive program to try to determine exactly what that 16 did mean and what was the significance of it. 17 Q. We just had some data that was showing Did you have any knowledge indicating that any copy of 18 the 1976 article from Taves had ever been given to U.S. EPA by 19 anybody? 20 A. I didn't have any knowledge that it did. 21 any knowledge that it didn't. 22 the published literature. 23 24 25 Q. I didn't have It was a published paper out in Why not err on the side of making sure EPA had that information? A. What would be the reason for that? It was a published Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 287 of 307 PAGEID #: 5288 1 Vol. 12 - 287 paper out in the public domain that EPA had signed, reviewed 2 the literature. 3 published. 4 go back and send that paper to the EPA, because it didn't 5 really say anything that EPA could use if they hadn't already 6 picked it up by their own scientists. 7 8 Q. They know everything that's coming out and There would not have been any reason whatsoever to You had no information indicating that EPA was aware of that document? 9 A. No, but I don't know that they weren't, either. 10 Q. Yet, with getting that information, DuPont went ahead 11 and recommended sampling of its employees, correct? 12 A. Yes. 13 Q. And, in fact, you made recommendations to actually look 14 into the health records for those employees, correct? 15 A. Yes. 16 Q. Because there wasn't much information available to 17 DuPont at that time confirming what the safe levels of exposure 18 were for C-8, was there? 19 A. We had no reason to think that these employees' health 20 had been harmed at all by any exposure to C-8; but, as we 21 discussed this morning, based upon our intent to try to do an 22 appropriate -- provide an appropriate safe and healthful 23 workplace, we wanted to make sure we knew exactly what were the 24 circumstances, what were the fluorochemical levels in our 25 employees' blood and if, in fact, they had any health effects Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 288 of 307 PAGEID #: 5289 Vol. 12 - 288 We had no reason to think that 1 that could be related to these. 2 they did, but we wanted to err on the side of prudence and look 3 and see if they did. 4 Q. And, in fact, you say that you had no evidence 5 indicating there was a health problem. 6 evidence, though, indicating there wasn't, correct? 7 A. You also had no That is correct, but you have to -- every DuPont 8 employee got a physical examination on a regular basis. 9 they were 40 years of age or under, they got one every two If 10 years, which included liver function tests, a complete exam by 11 a physician, chest x-ray, urinalysis, and any other test that 12 might have been indicated. 13 If they were over 40 years of age, they got one every 14 year, exactly the same thing, plus they got an 15 electrocardiogram every year. 16 We were able to monitor employee health by doing this on 17 a regular basis, physicians at the plant sites. 18 could look and see if there were any abnormalities that were 19 showing up. And then we 20 We also had an epidemiologic database in which we picked 21 up any type of illness that an employee may have for which they 22 lost eight days or more or anything that an employee or a 23 pensioner might die from. 24 epidemiologic database. 25 years, we would run that database and see if we had a plant This was entered into our And periodically, about every two Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 289 of 307 PAGEID #: 5290 1 Vol. 12 - 289 site that was showing any abnormality and causes of death or 2 adverse health effects that might be showing up. 3 the physical exams that the physicians were looking at. Plus, we had 4 And so we had a pretty good way to make sure that our 5 employees did not have a clustering of cases of some type of 6 adverse health effects. 7 But once we got these data that you reference here from 8 3M, then we felt that we needed to increase that surveillance a 9 little bit to make sure we weren't missing something, but we 10 were already doing a pretty extensive surveillance program. 11 12 13 THE COURT: Stop there. We are right up to five o'clock. Ladies and gentlemen, I thank you for your attention. 14 I'm not going to repeat all of the do's and don'ts, but please 15 keep them in mind. You've heard those several times now. 16 Have a nice evening. 17 at nine o'clock tomorrow morning. 18 19 We'll see you back here to start (Thereupon, the Jury exited the courtroom.) THE COURT: I have a couple of things I want to go 20 over with you. 21 schedule, what do you anticipate where we are at this point? 22 Let me first ask, Mr. Mace, just in terms of MR. MACE: That's why I raised my hand, Your Honor. 23 We're going to give it a look-over tonight. 24 frankly, I see the jurors not only rolling their eyes at 25 side-bar, I think they rolled their eyes when they come in the But, Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 290 of 307 PAGEID #: 5291 Vol. 12 - 290 So, we are really thinking about cutting it back. 1 courtroom. 2 I want to look at some of these videos that are still being 3 discussed. 4 provisionally, that we're going to finish this video, call Dr. 5 Rickard, and we'll be done. 6 THE COURT: 7 entire day. But my current anticipation would be, Would you anticipate -- 8 MR. MACE: 9 THE COURT: 10 Probably a day between both sides. All right. So you're confident we can finish by Friday, is what it sounds like. 11 MR. MACE: 12 THE COURT: 13 And I assume Dr. Rickard will take an I'm trying for that. And in terms of rebuttal, how do you see it? 14 MR. PAPANTONIO: Judge, I doubt we'll have rebuttal. 15 But I'm not so confident -- we'll finish on Friday, but that 16 would just be with testimony. 17 THE COURT: 18 Right now -- I know things can change, but, right now, you're not anticipating rebuttal? 19 MR. PAPANTONIO: 20 THE COURT: No, sir. All right. So we could finish with the 21 testimony this week and get this case to the jury early next 22 week? 23 MR. PAPANTONIO: 24 THE COURT: 25 MR. MACE: Yes, sir. Very good. We need to have a charge conference at some Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 291 of 307 PAGEID #: 5292 Vol. 12 1 point. 2 THE COURT: You're not just going to trust me to give 3 the instructions and -- I will tell you, before this trial is 4 over, how Judge Kinneary would do it. 5 would agree to that, but I'm not going to follow that habit. 6 He would just give them, and God help a person who objected. 7 That's -- we'll try to have a complete copy to you before the 8 weekend so you can take a look at it and we can move quickly 9 through those. 10 day. 12 jumping ahead here. 14 I don't think any side I would like to do close and the charge all in the same 11 13 291 How long are you thinking about for close? I know we're What sort of timeline are you thinking of? MR. PAPANTONIO: Yes, sir. We're looking at a way to keep to the same two hours that we used for openings. 15 THE COURT: 16 MR. MACE: 17 THE COURT: All right. Two hours each? That should be plenty, Your Honor. All right. So, if we do two hours each 18 and the charge will take anywhere from 30 to 45 minutes, then 19 we could do all this in a day. 20 lot of time to deliberate that first day, but at least they'll 21 have the case submitted and come back and have a full day the 22 next day. 23 All right. The jury probably won't have a The other matter that had been mentioned at 24 side-bar we'd take up at this time has to do with an issue of a 25 juror possibly sleeping. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 292 of 307 PAGEID #: 5293 1 Vol. 12 - 292 I have mentioned on the record several times at side-bar 2 that I've had some concerns. 3 so many side-bars. 4 him today. 5 his eyes, but when he opens, he's writing something. 6 not exactly confident and I'm not finding that he's sleeping, 7 but I can certainly say, from my observation, his eyes have 8 been closed from time to time. 9 10 That's one reason why we've had I've also been paying closer attention to I think the unknown is that he does appear to close So I'm So, with that, Mr. Papantonio, you were the one that would like to raise that issue. 11 MR. PAPANTONIO: 12 THE COURT: 13 MR. PAPANTONIO: 14 with what to do with this juror. May I approach, Your Honor? You may. Judge, we have been somewhat in a box 15 As the Court pointed out, the last time we had a 16 side-bar the Court made the statement, and I totally agree, the 17 jury is at the point when they're rolling their eyes when we 18 ask for a side-bar. 19 that among ourselves. 20 And it puts us -- and we've talked about It puts us at a pretty big disadvantage. There are times besides the eight -- besides the eight 21 side-bars that the Court has recognized in this case where 22 we've had to stop the process and come forward, we have 23 recognized about the same number of times where it wasn't 24 appropriate, we didn't think, because we thought it was a 25 prejudice to our side to ask for a side-bar. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 293 of 307 PAGEID #: 5294 1 Here is the problem. Vol. 12 This is our burden of proof. 2 Ms. Bartlett has the burden of proof here, Judge. 3 provided you some case law. 4 over that case law. 5 THE COURT: 6 it's somewhat discretionary. 7 fair trial -- And I've There is no reason for me to go Well, the case law basically says that 8 MR. PAPANTONIO: 9 THE COURT: I think it's fundamental to a Yes, sir. -- that no one vote on a case if they 10 haven't heard all the evidence. 11 argue that point. 12 293 MR. PAPANTONIO: I don't think anybody would Well, the argument is that -- and to 13 add to that -- this is a complex case. 14 type of case; but, if you look at the case law -- and I have it 15 there -- I don't want to plow through the case law, but this 16 type of thing is akin to a form of juror misconduct. 17 be expected that a juror is able to perform their duties if 18 they're asleep. 19 perform their duties, they should be removed from that -- from 20 that jury. 21 proceeding. 22 the only time that Ms. Bartlett is going to have her case 23 heard. This is not a typical It can't And when a juror makes it impossible to It's an important -- it's an important part of the It goes to the very heart of due process. This is 24 And so to follow some of the reasoning here, it's 25 not -- if you look at the cases, jurors are removed simply for Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 294 of 307 PAGEID #: 5295 Vol. 12 - 294 We now have -- in the material I've 1 nodding off once or twice. 2 given you, Judge, the analysis is very good. 3 about telling us that if there's no -- the person who is 4 prejudiced in a situation like that is the party that has the 5 burden of proof. The analysis goes Now -- 6 THE COURT: 7 case isn't proven, you lose. In theory, that's true because, if the 8 MR. PAPANTONIO: 9 THE COURT: Yes, sir. That's the theory. 10 sure that's the reality. 11 MR. PAPANTONIO: I'm not necessarily I understand that. But the 12 point -- the jury has to be able to discharge their duty. 13 if they're not -- if they're not wholly awake in a case like 14 this that's very complex, Judge, this has -- this case has been 15 dependent on video tapes, -- 16 THE COURT: I'm paying attention. 17 find the rule, but keep talking. 18 MR. PAPANTONIO: And I'm just trying to It's been dependent on video tapes, 19 Judge. 20 presentations in very complex matters. It's been dependent on what I call compilation type of 21 THE COURT: 22 MR. PAPANTONIO: 23 THE COURT: It is a complex case. Yes, sir. I think that's another factor that I would 24 certainly be focused on. 25 important it is for the jurors to follow it. The more complex case, the more Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 295 of 307 PAGEID #: 5296 1 MR. PAPANTONIO: Vol. 12 The numbers of documents alone, 2 Judge, I've lost track of them, frankly. 3 it before I came here. 4 composite material, and what we've done is, we've been very 5 precise in that motion that we've given you. 6 And I didn't look at But it's been so necessary to even use In the motion we've given you, we've gone back and 7 actually looked at what was happening during the eight times 8 that the Court had to stop and say, look, let's come up here 9 and have a side-bar and give the jury a chance to wake up. 10 This isn't rampant. And sometimes you'll see a jury 11 that everybody is asleep. 12 actually observed, Judge, and I think everybody who's been 13 paying attention to this has observed where other jurors have 14 almost nudged this guy. 15 295 That is not the case here. We've Juror #4 keeps looking at Juror #2 at whether he's awake 16 during critical times of the testimony. 17 of the bottle at this point. 18 THE COURT: And the genie is out We can't go back and say -- Just assume that I share the concerns. 19 All right? 20 jury that's heard the evidence is unassailable. 21 that, the doubt that I have in my mind is not so much the legal 22 standard. 23 trial the juror has absorbed, because I can't, truthfully, 24 tell, when his eyes are closed, whether he is sleeping or 25 whether he is simply -- some people can still listen and pay And I think the argument that you have a right to a Having said It's knowing or not knowing just how much of this Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 296 of 307 PAGEID #: 5297 1 attention and not fall asleep. 2 that. 3 Vol. 12 - 296 I know I'm not one who could do What would you think of the option of me telling him 4 that I'm the only one who wanted to talk to him, no one else 5 has asked for this, and I sit down and talk to him in camera, 6 but on the record, and ask him has he been able to keep track 7 of the evidence, has he been following asleep for periods of 8 time that would block him from knowing main parts of the case, 9 and see what his response is? 10 MR. PAPANTONIO: Judge, even though the Court might do 11 that, the chances of us being prejudiced -- we have a fifty 12 percent chance of being prejudiced by that. 13 this case to go forward and make an issue out of this. 14 done side-bars. 15 THE COURT: We've interrupted We've But I mean -- I just tell you, when I try 16 cases -- and I'm sure you've had the same experience -- this 17 happens from time to time, particularly after lunch. 18 oftentimes a side-bar is all it takes. 19 feet. 20 recurring problem, as I've mentioned this at side-bar. 21 don't disagree as to what the record shows at this point. 22 Someone gets on their Their eyes are open and we go forward. MR. PAPANTONIO: And This has been a So I And in a setting like this, we've 23 actually had jurors removed for that very reason, especially 24 when it reached the complexity of this. 25 fender-bender. This is not a If this juror misses one major element of this Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 297 of 307 PAGEID #: 5298 1 Vol. 12 case -- if he was -- for example, we have a cite in there 2 where, during Dr. Bahnson, that was a time when we had to wake 3 him up. 4 that the defendant has made a major part of their case. Dr. Bahnson was talking about causation in this case 5 THE COURT: 6 MR. PAPANTONIO: Right. And for Mrs. Bartlett to have to 7 guess was he -- how often did that happen is just not 8 appropriate, Judge. 9 297 And if we had a problem where we didn't have enough 10 jurors, but we can go forward with seven jurors, and there's no 11 prejudice; there is no question of prejudice whatsoever. 12 The other thing -- I want to put this -- I want to be 13 clear about this. 14 to take testimony from Mrs. Bartlett about this. 15 Ms. Bartlett has said to me, The man is sleeping. 16 paying attention? 17 From day one -- and you're certainly welcome THE COURT: record. 19 know, I think we've all seen the same thing. I've mentioned this at side-bar. remedial step first. 22 is -- 24 25 No one's -- you I think the only issue in my mind is do we take a 21 23 How is he Well, again, my position is this is on the 18 20 From day one, That's one question. MR. PAPANTONIO: I genuinely believe we're more prejudiced with that. THE COURT: The other question All right. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 298 of 307 PAGEID #: 5299 1 2 MR. PAPANTONIO: Vol. 12 - 298 I genuinely believe that, Judge. I'm not -- I'm not just imagining that. 3 THE COURT: 4 MR. PAPANTONIO: Well -We don't know what's been said among 5 these jurors. 6 is the best approach to a trial like this. 7 there has been times where I've felt like we couldn't do a 8 side-bar. 9 can't keep jumping up there. 10 side-bars. The side-bar issue does become -- the side-bar 12 MR. PAPANTONIO: All right. THE COURT: Thank you. You get the last word. 16 Mr. Mace? 17 MR. MACE: 18 THE COURT: 19 MS. NIEHAUS: 21 And it's actually had an impact on our strategy. 15 20 We can't keep asking for It's destructive to do that. THE COURT: 14 I understand your position. Ms. Niehaus will be addressing it. Ms. Niehaus. Thank you, Your Honor. One, you mentioned that you think this is a somewhat discretionary standard. 23 have great discretion in this area. 25 Just a couple points in response. 22 24 But And I've had to tell co-counsel we can't go up -- we 11 13 It works. THE COURT: In fact, the cases indicate that you Right. It's a good cause standard, and it's the use of discretion on appeal. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 299 of 307 PAGEID #: 5300 Vol. 12 1 MS. NIEHAUS: 2 THE COURT: 3 MS. NIEHAUS: 4 THE COURT: Right. I want to get this right. Okay. I understand -- you know, I don't think 5 this is one-sided, by the way. 6 just hypothetically -- I'm not talking about Juror #2 -- the 7 other jurors would probably say, What do you know? 8 through half this trial. 9 be -- I think that's the most likely outcome, but I'm 10 11 I could imagine a person who's, You slept They would discard his opinion, would speculating, I will be the first to admit. I also think that if I were in your position I would 12 fear that, you're at opening statement, slept through the 13 trial, and just relied on that in making a decision, which we 14 all know is completely improper. 15 299 It just seems to me that this is sort of a ricocheting 16 bullet here, and any one of you can be hit with it. 17 think it's necessarily the plaintiff's -- it's not the 18 plaintiff who is the only party at risk. 19 Sure. But especially given where we're 20 at in the trial, Your Honor. We have maybve a day or two left 21 of testimony. 22 continue. 23 24 25 MS. NIEHAUS: I don't There is only a down side to letting him The cases speak to curative measures. of that. You've done some You've called side-bars. THE COURT: The trouble is this is -- I'm not going to Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 300 of 307 PAGEID #: 5301 Vol. 12 - 300 It would -- but what I 1 use the example that came to my mind. 2 tried was curative, but it's sort of like giving a patient the 3 same medicine for 360 days and the temperature is still very 4 high. 5 It hasn't worked. MS. NIEHAUS: Sure. 6 having them bring in coffee. 7 THE COURT: 8 MS. NIEHAUS: 9 Right. We think that's the next step, at least, in the curative measures. 10 11 Well, I mean, you've suggested THE COURT: But we've been through, now, 13 -- 12 days of trial, and this would be the last two days. 12 MS. NIEHAUS: 13 THE COURT: Sure. I would be fearful that we just didn't 14 absorb enough of the testimony with that juror during the other 15 days. 16 MS. NIEHAUS: Sure. But in any event, Your Honor, the 17 cases speak to curative measures. 18 before a juror is actually dismissed, you need to take the 19 steps that you've sort of outlined here, and that is to ask him 20 has he actually listened to the testimony, has he appreciated 21 the testimony -- They also suggest that, 22 THE COURT: 23 MS. NIEHAUS -- perhaps review the notes that he's 24 25 Yeah. taken. As you pointed out, he's taken notes, so -- you know, Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 301 of 307 PAGEID #: 5302 1 what is he writing down? 2 down the evidence? 3 attention to the evidence. 4 That's some evidence that he's paying THE COURT: What's the -- what prejudice would there 5 be? 6 your side advocated nine. I know we've talked before about the number of jurors, and 7 MS. NIEHAUS: 8 THE COURT: 9 Vol. 12 - 301 Is he writing down -- is he writing We went with eight. Right. But the rule only requires six. as many as 12, but it's discretionary with me. It can be And seven 10 jurors who heard all of the testimony versus an eight jury 11 group with one juror that we have great fear didn't hear all of 12 the testimony, how would that in any way harm the case? 13 MS. NIEHAUS: 14 all of the testimony. 15 haven't had that opportunity, to ask him in camera. 16 THE COURT: Your Honor, we don't know if he's heard We haven't had an opportunity, or you Yeah. My fear, truthfully -- I don't 17 think would argue this -- we've had side-bars. 18 jurors that they may stand. 19 and doesn't stand. 20 21 I've told the And he continues with closed eyes You've seen that, I'm sure, right? MS. NIEHAUS: Sure. He engages with the deputy clerk when the deputy clerk goes over. 22 THE COURT: 23 MS. NIEHAUS: Right. And he does wake up. And as you've 24 pointed out, the times that he appears to be nodding off, he 25 does perk back up and takes notes. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 302 of 307 PAGEID #: 5303 1 2 THE COURT: He does do that. Vol. 12 - 302 That's his one saving grace at this point. 3 MS. NIEHAUS: 4 THE COURT: 5 MS. NIEHAUS: Your Honor, we did request nine jurors. Right. We think we were prejudiced in not 6 having nine jurors. 7 without even any additional information on whether this juror 8 has been paying attention or has been paying attention 9 sufficiently enough to consider the evidence I think compounds 10 So, to go from nine to seven, then, the prejudice. 11 THE COURT: I knew this was an important matter. 12 only had one other case where I've excused a juror. 13 for sleeping. 14 I've It wasn't It was for another matter altogether. I want to think about it over the night. If I do talk 15 to him, it will be in the morning. 16 talk to him, it's because I'm probably leaning towards excusing 17 him. 18 before we do that, because he has put a lot of time in here, 19 and I wouldn't want to have him do that for naught. 20 And I would say, if I do But I might just hang on a thin reed and see what he says But at this point -- this is in writing. 21 case law is exactly as you've described. 22 It's a just cause standard. 23 It's discretionary. Do you need a chance to respond to this? 24 MS. NIEHAUS: 25 THE COURT: In writing? Yeah. I think the You don't need to. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 303 of 307 PAGEID #: 5304 1 Vol. 12 First of all, the factual basis is everything we've 303 2 talked about. 3 what I've put on the record. 4 address that. 5 make a final decision before 8:30 tomorrow, but it's going to 6 be pretty close to 8:30. 7 8 9 We've all been at side-bar together. You know I don't think you don't need to But if you have some great concern -- I won't What I'd want to do is meet with him, if I'm going to do that, probably about 8:50. MS. NIEHAUS: Your Honor, I would say I did skim it, 10 as much as I could in the five minutes and also pay attention 11 to Mr. Papantonio. 12 Dr. Rickard is coming up and that he's a critical witness in 13 the case. 14 I noticed that one of the concerns is that And we don't dispute that, of course. I'd ask that if you do speak with him and ask him to 15 stay awake, that he at least be permitted to continue through 16 the duration of the trial and, you know, listen to that 17 critical witness. 18 THE COURT: One other thing to put on the record -- 19 this is in the voir dire, and it's always in his jury 20 questionnaire -- he is on Worker's Compensation. 21 him if he's taking medication, but I wouldn't be surprised. 22 was a physical injury to the knee, if you remember. 23 MS. NIEHAUS: 24 THE COURT: 25 Nobody asked It Yes. So he could very well be taking pain medication that is making him sleepy. So I don't want to make Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 304 of 307 PAGEID #: 5305 1 the record look like I'm criticizing him. 2 that spot. 3 MS. NIEHAUS: 4 THE COURT: Sure. But I don't -- I just want to see if he's 5 been able to absorb most of the case. 6 focus. 7 to be inclined to dismiss him. 8 9 Vol. 12 - 304 He may just be in That's going to be the And if he says he's had a rough time with it, I'm going MR. MACE: That's obviously fine, Your Honor. I want to note for the record, I've had some other observations with 10 at the side-bar. 11 certainly noticed him, appear to be, his eyes closed, but then 12 he's writing something down. 13 THE COURT: Some of those have been recorded, and I've There has been some of that. But there 14 have been lots of times when I've noticed -- and I've already 15 put this on the record -- as we were going through each day. 16 So this is -- I think we all understand this was not a one-time 17 occurrence. 18 once and then they tend to get the message, but that hasn't 19 happened here. 20 21 22 23 24 25 Okay. I had that happen a lot, and people are shaken up So -- I'll give it some more thought. Try to get it right. You can have the last word, Mr. Papantonio. MR. PAPANTONIO: May I make one request, Judge? I realize this is your court, but we would request if -- rather than asking him any questions, if the Court Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 305 of 307 PAGEID #: 5306 1 Vol. 12 - 305 decided that there was even a possibility that he was going to 2 stay, that he not be interviewed, because I really -- I 3 sincerely believe we're prejudiced by that. 4 believe that. 5 THE COURT: All right. I sincerely Well, you know, I will tell 6 you this much: 7 because I'm inclined to excuse him. If I decide to interview him, it will be 8 MR. PAPANTONIO: 9 THE COURT: Yes, sir. I wouldn't do this just as a neutral 10 proposition, but I think I owe him at least a talk before I 11 send him off after almost three weeks here. 12 All right. 13 at 8:30 in the morning. 14 15 16 17 18 19 20 21 22 23 24 25 With that, we'll be in recess. (Proceedings adjourned at 5:20 p.m.) - - - I'll see you Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 306 of 307 PAGEID #: 5307 Vol. 12 1 I N D E X 2 - - - 306 3 4 WITNESS 5 Michael Dourson By Mr. Mace By Mr. Douglas 22 Samuel Cohen By Mr. Mace By Mr. Douglas 132 6 DIRECT CROSS REDIRECT RECROSS 109 53 124 7 8 258 212 9 10 Bruce Karrh By Mr. Bilott 275 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - - - 269 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 307 of 307 PAGEID #: 5308 Vol. 12 1 307 C E R T I F I C A T E 2 3 United States of America 4 Southern District of Ohio 5 6 We, Shawna Evans, Lahana Dufour, Georgina Wells and 7 Denise Errett, Official Court Reporters of the United States 8 District Court for the Southern District of Ohio, do hereby 9 certify that the foregoing constitutes a true and complete 10 transcription of our stenographic notes taken of the 11 proceedings held in the afore-captioned matter on the 30th day 12 of September, 2015. 13 14 In testimony whereof, we hereunto set our hands on the 1st day of October, 2015. 15 16 17 /S/Shawna Evans, RMR Shawna Evans, RPR Official Court Reporter Southern District of Ohio 18 19 20 21 22 /S/Lahana Dufour, RMR Lahana Dufour, RPR Official Court Reporter Southern District of Ohio /S/Denise Errett, FCRR Denise Errett, FCRR Official Court Reporter Southern District of Ohio 23 24 25 Georgina Georgina Official Southern Wells, RPR Wells, RPR Court Reporter District of Ohio