0001 IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO 2 3 4 - - - - - - - - - - - - - : 5 TIMOTHY and ANITA ARTHUR, : et al., : 6 : Plaintiffs, : 7 : vs. : CASE NO. AO307157 8 : INTERNATIONAL FLAVORS & : JUDGE JOHN ANDREW WEST 9 FRAGRANCES, INC., et al., : : 10 Defendants. : - - - - - - - - - - - - - : 11 12 13 VIDEOTAPED DEPOSITION OF: STUART MERRILL BROOKS, M.D. 14 TAKEN: By Counsel for Plaintiffs 15 DATE: Monday, February 21, 2005 16 TIME: 2:50 p.m. to 3:56 p.m. 17 PLACE: University of South Florida 18 College of Public Health 13201 Bruce B. Downs Boulevard 19 Tampa, Florida 33612 20 REPORTED BY: Beverly Replogle Notary Public 21 State of Florida at Large 22 23 24 25 Pages 1 to 55 0002 1 APPEARANCES: 2 KENNETH B. McCLAIN, ESQUIRE Humphrey, Farrington & McClain, P.C. 3 221 West Lexington, Suite 400 Independence, Missouri 64050 4 816-836-5050 sbm@hfmlegal.com 5 Appeared on behalf of Plaintiffs 6 7 FRANK C. WOODSIDE, III, ESQUIRE Dinsmore & Shohl, LLP 8 1900 Chemed Center 255 East Fifth Street 9 Cincinnati, Ohio 45202-4720 513-977-8266 10 woodside@dinslaw.com Appeared on behalf of Defendants 11 Bush Boake & Allen and International Flavors and Fragrances, Inc. 12 13 DAMOND R. MACE, ESQUIRE Squire, Sanders and Dempsey L.L.P. 14 4900 Key Tower 127 Public Square 15 Cleveland Ohio, 44114 16 Appeared on behalf of Defendant Givaudan Flavors Corporation 17 18 ALSO PRESENT: 19 Marilyn McCloskey Videographer 20 21 22 23 24 25 0003 1 I N D E X Page 2 Examination by Mr. McClain 5 3 Examination by Mr. Mace 31 4 Examination by Mr. Woodside 52 5 Certificate of Oath 54 6 Certificate of Reporter 55 7 8 9 E X H I B I T S 10 PLAINTIFF'S 11 NO. DESCRIPTION PAGE 12 1 Curriculum Vitae 8 13 14 PREVIOUSLY MARKED EXHIBITS 15 4 "Clinical Bronchiolitis Obliterans in Workers 25 at a Microwave-Popcorn Plant" article in the 16 New England Journal of Medicine 17 5 "Necrosis of Nasal and Airway Epithelium in 28 Rats Inhaling Vapors of Artificial Butter 18 Flavoring" article from Toxicology and Applied Pharmacology 19 10 Abstract 28 20 14 Dr. Lockey's notes of site visit 22 21 22 23 24 25 0004 1 The videotaped deposition of STUART MERRILL BROOKS, 2 M.D., was taken pursuant to notice by counsel for Plaintiff 3 on the 21st day of February, 2005, commencing at 2:50 p.m., 4 at the offices of University of South Florida College of 5 Public Health, 13201 Bruce B. Downs Boulevard, Tampa, Florida 6 33612. Said deposition was reported by Beverly Replogle, 7 Notary Public in and for the State of Florida at Large. 8 - - - - - 9 (Exhibit 1 was marked for identification.) 10 VIDEOGRAPHER: This is the videotaped 11 deposition of Dr. Stuart Brooks in the matter of 12 Timothy and Anita Arthur, et al., versus 13 International Flavors & Fragrances, Inc., et al. 14 We are located at 13201 Bruce B. Downs 15 Boulevard, Tampa, Florida. My name is 16 Marilyn McCloskey. I'm the videographer with 17 Sun Ray Legal Video. The court reporter is 18 Beverly Replogle with the firm of Dreyer and 19 Associates. 20 Will counsel please introduce themselves? 21 MR. McCLAIN: Kenneth McClain on behalf of the 22 plaintiffs. 23 MR. WOODSIDE: Frank Woodside. I represent 24 International Flavors & Fragrances and Bush Boake 25 Allen. 0005 1 MR. MACE: David Mace on behalf of Givaudan 2 Flavors Corporation. 3 VIDEOGRAPHER: All right. Would the court 4 reporter please swear the witness? 5 STUART MERRILL BROOKS, M.D., 6 the deponent herein, having been first duly sworn, was 7 examined and testified as follows: 8 EXAMINATION 9 BY MR. McCLAIN: 10 Q. Dr. Brooks, will you state your full name, please? 11 A. Stuart Merrill Brooks. 12 Q. Dr. Brooks, I have a copy of a curriculum vitae that 13 was current through 2004 of yours. Is this your current 14 vitae? 15 A. Correct. 16 Q. Sir, just as a brief background, can you describe 17 for us your medical training? 18 A. Well, I'm from Cincinnati and went to medical school 19 in -- at the University of Cincinnati. 20 I was at -- took an internship, and then I -- that 21 was followed by a -- a residency at Tam -- at Boston City 22 Hospital for four years; two years in internal medicine, two 23 years in pulmonary disease, interrupted by two years in the 24 service. 25 And then in 1969 I returned to the University of 0006 1 Cincinnati as a faculty where I was in the College of 2 Medicine, both in the departments of medicine and mainly in 3 the department of environmental health. And at the 4 department of environmental health, I was head of the -- what 5 was called the clinical studies division, which was really 6 the -- the occupational medicine program. 7 But while there I was doing pulmonary; I was doing 8 critical-care medicine; seeing patients; doing research, 9 conducting research mainly in occupational lung disease; and 10 then teaching residents, interns and medical students. 11 1986 I left the University of Cincinnati, went to 12 the University of South Florida here in Tampa, Florida. I 13 was a head of the department, a chairman of the department of 14 environmental occupational health for the new College of 15 Public Health that was being built here in -- in Florida. It 16 was the only College of Public Health in Florida. 17 And I remained as a chairman for about 11 years, 18 till about 1997, and then I became director of what's called 19 an ERC, an education research center, which is a specialized 20 center for occupational safety and health. And I've been 21 involved in that for the last, well, seven years. 22 We also have a -- a program that was transferred 23 from the State, which is Sunshine, their safety program. So 24 Florida got rid of their safety program, and they had a -- an 25 OSHA 21D program, which is a surveillance program for small 0007 1 businesses. It's like a free safety and health -- 2 occupational safety and health program. So I was the deputy 3 director of that. 4 And then most recently, in the last couple of years, 5 we got what's called an OSHA Training Institute where we 6 provide training programs for really the trainers for 7 workplace safety. 8 In the last couple of years I've been involved in 9 kind of -- of spending more time in research; and so the 10 last year and a half, year or so, I've been building or 11 been con -- been developing a research lab -- laboratory, 12 which I call the breath lab, which is a laboratory that 13 studies lung injury using noninvasive procedures, such as 14 measuring constituents in the exhaled breath, gas or 15 condensate. 16 Q. Doctor, is it fair to say that your professional 17 career has been dedicated to the issues of occupational 18 health and particularly pulmonary health? 19 A. Correct. And I -- just maybe to focus a little bit 20 more, my research has ranged from animal studies to 21 cell-culture studies, but mainly human studies. And the 22 studies I have conducted have been both epidemiologic, often 23 or many times with the National Institute of Occupational 24 Safety and Health, NIOSH, studies, at least early on and then 25 case studies. 0008 1 So, for example, many of my studies on occupational 2 asthma have been case studies, and so I've focused on asthma 3 and airways disease. 4 1985, for example, I published a paper on a new type 5 of asthma called reactive airways dysfunction syndrome, or 6 RADS, which is a nonallergic-type asthma, sudden onset. 7 I've continued to conduct some research in that 8 area. I had another paper in 1998 dealing with kind of a 9 lower-level exposure. So airway problems, asthma, and -- and 10 other types of airway problems have been an interest of mine 11 and one that I've examined over the -- over the years. 12 Q. Doctor, I see from your curriculum vitae, which we 13 have marked as Exhibit 1, that you have some 147 different 14 publications? 15 A. I believe so, yes, 147. 16 Q. And are these peer-reviewed publications, Doctor, in 17 the main? 18 A. Most of them are peer review. Some of them are, you 19 know, in journals invited; that is, writer for that 20 particular journal or invited to provide a paper. Some of 21 them are chapters in books that I've been invited, and then 22 these are really kind of peer-reviewed by the editor and the 23 staff. 24 Q. And -- and, Doctor, you mentioned that you have 25 consulted for NIOSH, the National Institute of Occupational 0009 1 Safety and Health? 2 A. In the past I have, yeah. 3 Q. And you mention that you consulted for the State of 4 Florida certainly? 5 A. Correct. Correct. 6 Q. And any other states that you have been a consultant 7 for? 8 A. Well, I don't know, I mean, whether consult -- 9 Q. For state agencies? 10 A. Yeah, state agencies. Let me think. Well, I've 11 done some work for New York, the World Trade Center, so I've 12 actually got contacted by the -- their district attorney; but 13 I've also been involved with the David Prezant, who is 14 evaluating the workers there. I'll get -- I don't recall. 15 There might be -- there might be some other states that I've 16 been asked to evaluate or to be a consultant, but I -- I 17 can't recall right now. 18 Q. Do you consult for companies from time to time as 19 well? 20 A. Yes. 21 Q. And, Doctor, do you consult with them generally 22 about pulmonary disease or -- or occupational pulmonary 23 hazards? 24 A. Correct, yeah. More recently here in Tampa and in 25 Florida, they have a lot of indoor air, so I've been dealing 0010 1 with a lot of indoor-air issues, mold and health effects of 2 mold. 3 Q. Doctor, I want to take you to an earlier point in 4 your career and ask you: Were you ever asked to be a 5 consultant for a company called TasteMaker that has a plant 6 in and around Cincinnati? 7 A. Yes. 8 Q. Can you describe the circumstances that you were 9 contacted by TasteMaker and asked to become a consultant to 10 them? 11 A. Well, I don't remember if it was a -- if I got a 12 letter or a phone call. It might have been a phone call from 13 Mr. Hochhauser -- Hochhauser, I believe -- who was a student 14 at the Kettering Laboratory where I was a faculty. That is, 15 at the University of Cincinnati, there is the Department of 16 Environmental Health. 17 I was a member of that department. And the 18 Department of Environmental Health has as part of it the 19 Kettering Laboratory. The department has programs in 20 occupational medicine, which I was in charge of, and 21 industrial hygiene and other programs. But he was a graduate 22 from that program, and I guess he -- I interacted with him 23 during the time. So he knew me, I guess, and he contacted 24 me. 25 Q. Now, in about what year was this that you were 0011 1 contacted? 2 A. Well, I -- I wasn't sure. I understand it's 1994, 3 but I -- I didn't -- I'm not really -- I'm not really sure 4 about that date, but I understand -- 5 Q. Approximately 1994 you think? 6 A. Approximately, yes. 7 Q. And Mr. Hochhauser contacted you, who had been one 8 of your students. Was he an employee of TasteMake -- 9 TasteMakers? 10 A. Yes. He was their industrial hygiene person. 11 Q. And can you tell us, when he contacted you, what did 12 he indicate was the nature of his problem -- or let's start 13 again. 14 Dr. Brooks, when Mr. Hochhauser contacted you, what 15 did he ask you to do? 16 A. He asked me to evaluate some problems with workers, 17 employees, of that TasteMaker. And I don't know if he sent 18 me anything over prior to that, but I eventually then went -- 19 actually visited Cincinnati from Florida. And I made a -- I 20 was there for a day or so, and I went through the plant, did 21 an inspection of the plant, and I met with the staff and -- 22 the administrative staff, whoever was in charge at that 23 time. I forget who that was. 24 And I then had -- there was some cases that they 25 had. I want to say like five or six of them, but I'm like -- 0012 1 I'm not really sure, but the -- the information from those 2 cases was not complete. And they -- and I was -- I got 3 information on who the private treating physicians were. 4 So I was able to contact the private physicians, who 5 in this case were actually former fellows of mine, pulmonary 6 fellows. So I knew all -- each one. And they were -- they 7 were -- actually provided me with some records on these 8 individuals. 9 I -- these were individuals who had sort of 10 asthma-like syn -- an airways problem, looked like asthma; 11 but some of them had biopsies, which were interpreted as 12 bronchiolitis obliterans. And I can't remember if I looked 13 at some of those biopsies or not. But I did look -- remember 14 the reports and -- and so what -- what we -- what I had was 15 several -- I think five or six, somewhere around that, cases 16 of individuals who had been employed in the company who 17 developed asthma and who had a clinical picture of 18 bronchiolitis obliterans and who had in some cases biopsies, 19 lung biopsies, which substantiated that diagnosis. 20 Q. And, Doctor, did you investigate in your visit what 21 the potential causes of the bronchiolitis obliterans that was 22 being seen in the plant was? 23 A. Well, I tried to. I -- I went through the plant, 24 and I went through the -- I think, as I recall, the chemicals 25 they had. I might have reviewed the chemicals. And -- and 0013 1 at that time I had actually -- I had -- I had only been aware 2 of gases causing bronchiolitis obliterans, the classic being 3 nitrogen dioxide, the silo filler's disease. 4 So what was unusual about this was that there was no 5 oxides of nitrogen. I mean, I went through, and it was clear 6 there was not -- that was not an exposure. And there were a 7 whole bunch of much different flavors and -- and things of 8 that sort. There were many, many that the -- that the 9 company had. 10 So what I then decided or -- or concluded back in 11 1994 that this was a new case, a new type of bronchiolitis 12 obliterans. And so I -- I looked in the literature, as I 13 recall. I actually called Talmadge King, who was up at -- 14 at -- let's see. Where is Tommy? He's at Denver or 15 California. I forget where he is now. I think he's at 16 University of South -- California South in San Francisco, 17 head of pulmonary. But Talmadge and I, we two talked, and I 18 said, you know, "Did you ever hear about this?" 19 The reason I called him, he had -- he wrote a 20 chapter in a book on pulmonary fibrosis on bronchiolitis 21 obliterans. So he -- he was familiar with it, and he didn't 22 know it, and so I don't know if I called anyone else about 23 that. So that was kind of -- of -- of what I had concluded. 24 Q. So, Doctor, let me -- let me just summarize just for 25 a minute to under -- to see if I understand you correctly. 0014 1 You went into the plant, and you saw what you believed -- 2 MR. WOODSIDE: Excuse me. Excuse me. I have 3 to object. When you say "the plant" -- 4 MR. McCLAIN: Yeah. Let me -- let me -- let me 5 start again. 6 BY MR. McCLAIN: 7 Q. Doctor, let me just see if I understand what you're 8 telling me. In 1994 -- in approximately 1994, when you went 9 to the TasteMaker plant in Cincinnati, you saw cases in the 10 plant which in your view were most likely bronchiolitis 11 obliterans. Is that true? 12 A. Correct. 13 Q. And, Doctor, it was your belief that in light of the 14 fact that you had five or six cases of this rare disease, 15 that something within this plant was causing bronchiolitis 16 obliterans. Is that right? 17 A. Correct. 18 Q. And, Doctor, it was your view that this was a 19 previously unknown cause of bronchiolitis obliterans. Is 20 that true? 21 A. Correct. 22 Q. And, Doctor, as a researcher on occupational 23 disease, this was of some interest to you? 24 A. Correct. Yes, it was a new disease as far as I was 25 concerned -- 0015 1 Q. And, Doctor -- 2 A. -- so I was excited about that. 3 Q. And, Doctor, did -- did you offer to investigate 4 what the cause of this new type of bronchiolitis obliterans 5 was for TasteMaker in Cincinnati? 6 A. Yes, I did. In fact, I met with -- I don't remember 7 who it was, someone who was a -- a woman who -- I don't know 8 if she was an attorney or -- but who -- she was the one that 9 was -- kind of we were representing -- or the company at that 10 time. And they had -- as I understood it, they had other 11 divisions. They had like a -- if I recall, a Hercules 12 division, and it was more -- it was an international -- I 13 didn't realize it was so international. 14 They had just been either sold or bought or 15 something, and so they -- and we talked about where these 16 other plants were. And what I recommended, as I recall, was 17 that we needed to do a epidemiologic study. We needed to 18 find really whether there were other cases of this 19 asthma-like syndrome. We needed to do some surveillance on 20 the workers and -- and maybe even do some further studies on 21 these individuals. 22 Q. Doctor, were you asked at any point in time to sign 23 a confidentiality agreement? 24 A. Not that I recall. 25 Q. Okay. And -- and -- 0016 1 A. I mean, if it is, I don't -- I don't recall. 2 Q. Well, Doctor, just -- just to make it clear. I 3 don't know whether you were or not, because we haven't been 4 supplied any documents, even though the lawyers for Givaudan, 5 who now own TasteMaker, promised the Court over three months 6 ago they would be producing them shortly. But so I -- I 7 don't know whether you signed them or not, but -- 8 MR. MACE: Objection, move to strike. 9 MR. McCLAIN: Well, I'm going to move to 10 compel you and sanction you, just to let you know 11 what I'm going to move to do, but that's off the 12 record and -- and off the point. 13 MR. MACE: I move to strike. 14 BY MR. McCLAIN: 15 Q. Doctor, it's fair to say that you recognized at this 16 early point in time that something within this flavoring 17 plant run by TasteMaker was in fact likely to be causing 18 bronchiolitis obliterans in this working -- in this working 19 population. Isn't that true? 20 A. Correct. 21 MR. MACE: Continuing objection to the leading. 22 BY MR. McCLAIN: 23 Q. Now -- well, Doctor, you tell me. What was your 24 conclusion at this point in time? 25 A. My conclusion at this point in time was that there 0017 1 was a new entity of bronchiolitis obliterans; that is, a new 2 entity in the sense that this was a cause of bronchiolitis 3 obliterans that appeared to be non-gas in origin. 4 I didn't know what it was, what agent, but that I 5 felt pretty comfortable with the diagnoses, particularly with 6 the pathologic -- since some of them had lung biopsies and 7 pathological confirmation, and they had other aspects of -- 8 of bronchiolitis obliterans that -- that are -- that were 9 consistent with that diagnosis, clinical aspects. So that at 10 that point I -- I believe that this was new -- a new cause 11 for bronchiolitis obliterans. 12 Q. Now, Doctor, you -- you told us about your 13 recommendations to TasteMaker in regard to what you thought 14 needed to be done. Did you also make some interim 15 recommendations to them about ways to avoid risk to their 16 employees while you were investigating this disease process? 17 A. Well, we talked about that. I didn't know what to 18 do, because I didn't know what the cause was. And when I 19 went through the plant, as I recall, the plant looked pretty 20 clean. 21 I mean, I didn't really see -- there was a couple 22 where they added things, and it was an open system. But 23 generally the plant was pretty clean, and I couldn't identify 24 any of the job categories that I reviewed that looked like 25 a -- a suspicious cause. 0018 1 So I couldn't recognize it, and I don't recall if I 2 made some specific recommendations as far as what they could 3 do with the exposures, because I don't -- I wasn't really 4 sure what exposure was at -- was at cause. 5 Q. Let me -- let me show you a document that we marked 6 in the deposition of Dr. James Lockey. 7 First of all, do you know Dr. Lockey? 8 A. Yes. 9 Q. How do you know him? 10 A. Well, he was at the University of Cincinnati with 11 me. He was a -- took a fellowship with me, and then he went 12 back to Utah. And eventually he took my job at -- at the 13 university. 14 Q. All right. 15 A. In fact, I recruited him for my job. 16 Q. When you came to the University of South Florida? 17 A. Correct. 18 Q. After your initial consultation with -- with 19 TasteMaker, did you write a report to them? 20 A. I don't recall if I had a report or not. 21 Q. And did you ever have any further consultation with 22 them after your first meeting? 23 A. There must have -- you know, there must have been 24 some -- something I wrote up, because I had -- I think what I 25 wrote up was the -- maybe the medical records I summarized, 0019 1 and there was something, because I remember that after they 2 decided not to use me any longer, I said, "Well, you can't 3 use any of my -- my records" or something. 4 There was some kind of limitation on -- on, I 5 think -- and I did send them a letter. I do recall that. I 6 did send them a letter saying -- but I don't -- I don't have 7 a copy of that letter. 8 Q. Well, I don't either. 9 A. Yeah. 10 Q. As I say, no documents have been produced to me by 11 this chem -- by this chemical company. So we'll -- we'll try 12 to get those and see. And we may have to resume this once we 13 have the records. 14 But suffice it to say, you were not asked to do 15 further work, even though you thought further work could be 16 done and should be done. Am I right? 17 A. Well, I -- I'd put it a little bit more blunter. I 18 mean, I think that my per -- from my perception I was fired, 19 because of my recommendations. 20 And as I recall, the person who was the -- the woman 21 who was there, I think she had a -- and I'm not sure about 22 this; but, as I recall, she had a contact, a friend that was 23 a physician, and he was advising her on issues. 24 Q. Was it Karen Witty-Derose (phonetic) -- 25 A. It may have been. 0020 1 Q. -- the vice president and general counsel of 2 TasteMaker? 3 A. Might have been her, yeah -- 4 Q. Okay. 5 A. -- because she had -- and then she was the one 6 that -- that decided that she didn't want -- didn't want to 7 follow, at least she didn't want to deal with me anymore -- 8 or someone didn't want to deal with me anymore. 9 Q. Now, do you know subsequently that they employed 10 Dr. Lockey? 11 A. Correct. I said, you know -- I said, "Well, you 12 know, why don't you -- it might be easier to get Lockey" 13 and -- and so forth. That would be a kind of a -- an 14 alternative. I don't remember if -- whether I said, you 15 know, "Why don't you just go ahead and use Lockey and -- and 16 Roy McKay to do the surveillance, because they're right 17 there." 18 But I felt, at least as I recall, that I was -- 19 because I was angry at the time, because they -- they -- they 20 kind of let me go after that. 21 Q. And you believe that they let you go because you 22 gave them bad news? 23 MR. MACE: Objection. 24 A. I think, yeah. I don't know if I gave -- I think 25 they knew what the diagnosis was. 0021 1 I recommended that they do these surveillance 2 program in their other plants throughout wherever, the world 3 or the country, and I don't know if that was -- my impression 4 was that that was -- that was something they did or did not 5 want to do. 6 Q. Now -- but you did make the recommendation, "Even if 7 you're not going to employ me to investigate this particular 8 plant in Cincinnati" -- 9 A. Yeah. 10 Q. -- "you should at least employ Jim Lockey and Roy 11 McKay to do that"? 12 A. Correct. 13 Q. And were you aware that they did do that? 14 A. For a while, yes. 15 Q. And are you aware that they put him under a 16 confidentiality agreement? 17 A. I don't recall. 18 Q. Did you ever have any dealings with -- with a group 19 called FEMA, the Flavor and Extract Manufacturers 20 Association? 21 A. I don't recall. 22 MR. WOODSIDE: I -- I was going to object to 23 that question, because it didn't indicate in what 24 area, if any, there was a -- 25 MR. McCLAIN: I didn't limit it. 0022 1 MR. WOODSIDE: -- consultation. I understand. 2 But since he doesn't know, my objection is not 3 really necessary. 4 BY MR. McCLAIN: 5 Q. I want to show you an exhibit from Dr. Lockey's 6 deposition, Exhibit 14, and I -- 7 MR. WOODSIDE: Excuse me? 8 MR. McCLAIN: Yes. 9 MR. WOODSIDE: Are we going to label this 2 10 here, or are we just going to continue on as 14? 11 MR. McCLAIN: Just we'll use it as -- as Lockey 12 14 -- 13 MR. WOODSIDE: That's fine. 14 MR. McCLAIN: -- so that we don't get confused 15 with -- 16 MR. MACE: Ken, I don't think you ever said 17 Exhibit 1 was his CV. 18 MR. WOODSIDE: Yeah, he did. 19 MR. MACE: I didn't hear it on the record. 20 MR. WOODSIDE: Yeah, he did. 21 MR. MACE: Okay. 22 BY MR. McCLAIN: 23 Q. This is -- these are Dr. Lockey's notes of his site 24 visit to the same plant in Cincinnati that you're talking 25 about in 1995. And there's just a -- a couple of things in 0023 1 here that I want to go to to see if it refreshes your 2 recollection about your visit. 3 Dr. Lockey identified that this was his dictation as 4 he went through the plant, and I want to go to -- to 5 paragraph -- or to page 8. In his -- in his visit to the 6 plant Dr. Lockey was shown a worker using a chemical diac -- 7 called diacetyl. Are you -- do you see where I am -- 8 A. Correct. Yeah. 9 Q. -- in the page? 10 A. Um-hmm. 11 Q. And that workers were complaining about it burning 12 their eyes? 13 A. Yes. 14 Q. Do you see that? 15 A. Um-hmm. 16 Q. Did you recall that being pointed out to you as you 17 toured the plant? 18 A. No. 19 Q. Would you look at page 3, Dr. Brooks? It said: 20 "Stu Brooks had a concern about the small-orders 21 department. Again, this could be a microcosm of the company 22 as a whole." 23 Do you see that? 24 A. Yes, I -- yeah, I -- I don't recall it, but I do now 25 recall, because it was a more of an enclosed area, yes. 0024 1 Q. Small order -- just -- just so that we're -- we're 2 clear, because we've -- we've kind of jumbled a few things 3 together, in this plant they made various types of flavors. 4 Is that correct? 5 A. Correct. 6 Q. Powdered flavors, liquid flavors, fruit flavors, 7 butter flavors; all kind of things. Is that right? 8 A. That is correct. 9 Q. And in the small-orders department, they would make 10 small batches of all of the different flavors. Is that 11 true? 12 MR. MACE: Objection, foundation. 13 A. I don't know if all -- I don't recall, but it's -- 14 they would make small orders -- 15 BY MR. McCLAIN: 16 Q. And that's what -- 17 A. -- of various products. 18 Q. And so you believe that if you looked at the 19 small-orders department, you might get a good sense of all 20 the different types of chemicals that could be causing 21 disease -- 22 MR. MACE: Objection to form. 23 BY MR. McCLAIN: 24 Q. -- in that one location. Is that correct? 25 A. Correct. And I don't recall, but I vaguely think 0025 1 that maybe one of the people worked in there, but I can't -- 2 I'm not sure about that, that had -- that was affected, but I 3 don't -- I don't know that for sure. 4 Q. Doctor, I'm going to -- to show you an article, 5 Deposition Exhibit 4 from the Lockey deposition, and ask you 6 if you're familiar with that document. 7 A. Yes. 8 Q. This is a -- an article from the "New England 9 Journal of Medicine" -- 10 A. Correct. 11 Q. -- regarding exposure to workers in a popcorn plant 12 to butter flavors containing diacetyl. 13 A. Correct. 14 Q. Do you see that? 15 And you're familiar with it? 16 A. Yes. 17 Q. And the conclusion of the authors of this article 18 submitted to the "New England Journal of Medicine" was that 19 the diacetyl caused bronchiolitis obliterans in this plant of 20 workers. Is that correct? 21 MR. MACE: Objection. 22 MR. WOODSIDE: Object to the form of the 23 question. 24 BY MR. McCLAIN: 25 Q. Let's just strike that. 0026 1 Doctor, what is the -- what was the conclusion of 2 the authors -- 3 MR. MACE: Objection. 4 BY MR. McCLAIN: 5 Q. -- of this? 6 MR. WOODSIDE: Objection. 7 A. Well, it was the -- the -- the conclusion was that 8 bronchiolitis obliterans caused by the inhalation of volatile 9 butter flavoring -- flavoring ingredients, and in their 10 results they noted that there was high levels of this 11 diacetyl. I don't know if they concluded that that was the 12 final -- let's see in their -- hold on a second. 13 MR. WOODSIDE: I would suggest if you look at 14 the bottom of page 336, you may find the quote 15 you're -- 16 THE WITNESS: Yeah. 17 MR. WOODSIDE: -- looking for. 18 A. Yeah, this is the last -- I'm looking -- yeah, 19 this. So in that discussion, I don't know if they came up -- 20 they -- they -- it's suggested; but if you look at their -- 21 they were not as specific in their conclusions, "Support the 22 conclusion that an agent in butter flavoring caused 23 occupational bronchiolitis obliterans and exposed workers at 24 this popcorn plant." 25 Then they talk about what they need to use and -- 0027 1 and how to kind of intervene. But in the -- their 2 discussion, they -- they talk about diacetyl, which has been 3 used in animal studies, for example, in rats, and they show 4 that it damages respiratory epithelium in the airways, which 5 I don't think proves it; but this says: A peak diacetyl 6 level of 1230 ppm was later measured in a space in a tank. 7 Apparently that was a study that was mentioned. 8 And then it talks a little bit more about where the 9 damage in the rat extended, suggesting that because it was 10 below the basement membrane of the sloughed respiratory 11 epithelium that the healing might be a fibrosis, which is 12 what you see in a bronchiolitis obliterans, and -- 13 Q. So just so that we're clear -- 14 A. Yeah. 15 Q. -- they -- they were saying that based upon the 16 animal studies, it was likely that diacetyl in the butter 17 flavor was causing this reaction? 18 MR. MACE: Objection. 19 MR. WOODSIDE: Objection. 20 BY MR. McCLAIN: 21 Q. That was their conclusion? 22 MR. WOODSIDE: Objection. 23 A. They -- they suspected that. That was their -- that 24 was their main suspect, I think. 25 MR. WOODSIDE: Move to strike. 0028 1 BY MR. McCLAIN: 2 Q. Now, and in fact they -- they -- they published the 3 rat study that you're talking about, and that's Lockey 4 Exhibit 5. You're familiar with that document as well, 5 aren't you? 6 A. Correct. 7 MR. WOODSIDE: Excuse me. Could we learn what 8 Lockey Exhibit 5 is? 9 MR. McCLAIN: It's the -- it's Hubbs 1. 10 MR. WOODSIDE: Thank you. 11 BY MR. McCLAIN: 12 Q. Now, are you aware that subsequently to these 13 studies that Dr. Lockey gave an abstract presentation of his 14 study in the TasteMaker plant that you originally were 15 involved in? 16 A. I understand that. 17 Q. Let me show you Exhibit 10 and ask you if you've 18 ever seen that before. 19 MR. MACE: Copies, Counsel? 20 MR. McCLAIN: I don't have any copies. It's 21 Exhibit 10 to Lockey's deposition. 22 A. Also, so I see Bob Boffman. I -- I did talk to Bob, 23 too, Boffman when I was in Cincinnati now that I recall that. 24 Q. Who was -- who was Mr. Hoffman? 25 A. Boffman. 0029 1 Q. Boffman? 2 A. Bob Boffman. 3 Q. Yes. 4 A. Yeah, he was one of the people on the abstract form, 5 and he -- I knew him pretty well when I was in Cincinnati. 6 He's a pulmonary guy, but he was involved with some of these 7 patients. 8 So, yeah, this is -- five patients, yeah. Well, 9 these are the patients whose -- whose -- whose medical 10 records I -- I put together, as I recall, and got -- was able 11 to get those for Dr. Lockey. Yeah. Yeah, I remember that. 12 Yeah. 13 MR. WOODSIDE: Can I see that just a minute? 14 BY MR. McCLAIN: 15 Q. Now, Doctor, the study that was done in the "New 16 England Journal of Medicine" was 2001. Is that correct? 17 A. "New England Journal of Medicine," 2002. 18 Q. It was published in 2002? 19 A. Correct. 20 Q. And the -- the Hubbs 1 study was in 2002 as well, 21 September of 2002? 22 A. Correct. Well, it was accepted and it was published 23 sometime in 2002. 24 Q. Is it fair to say that what you were suggesting be 25 done in 1994 was the same type of study that was done by 0030 1 NIOSH in 2002 to determine what was causing bronchiolitis 2 obliterans in this plant? 3 MR. MACE: Objection. 4 BY MR. McCLAIN: 5 Q. You were suggesting the same type work be done at 6 TasteMaker back in -- in 1994? 7 MR. MACE: Objection. 8 A. Well, TasteMaker and -- and their constituents, 9 plants, yes, similar to this. Maybe not exactly, but of 10 this type of a study, yes, that's correct. 11 Q. And you -- you recognized very early on as a public 12 health official that if a study like this was not done, other 13 plants around the world could be affected. Isn't that 14 true? 15 MR. MACE: Objection. 16 MR. WOODSIDE: Leading. 17 A. Correct. 18 BY MR. McCLAIN: 19 Q. And, Doctor, it's true, isn't it, that you were 20 prophetic in that regard in your desire to protect public 21 health, because we had -- we know at least from the published 22 literature that at least in one other plant these flavoring 23 chemicals were suspected to have caused bronchiolitis 24 obliterans; isn't that true? 25 MR. MACE: Objection. 0031 1 MR. WOODSIDE: Objection, form. 2 A. So I'm not really sure what your question is now. 3 BY MR. McCLAIN: 4 Q. My question is, Doctor, this is -- this is one of 5 the reasons why you suggested that this study be done was to 6 try to prevent other workers from getting sick like those 7 that you were finding were sick in the TasteMaker plant? 8 MR. MACE: Objection. 9 BY MR. McCLAIN: 10 Q. Isn't that right? 11 A. That's -- I would say that was one of the things, 12 I -- I would -- would say. My -- my rationale was to find 13 workers who were currently ill, maybe at an earlier time 14 than -- than some of the others because it was a progressive 15 disease, try to see, I think, if we could identify the 16 specific agent and -- and then maybe really kind of make it 17 sort of a -- I mean, that would be in kind of a research -- 18 sort of like what the NIOSH did, so that it could be 19 published. 20 Q. So that others could take that finding and protect 21 workers who might have similar exposures? 22 A. Correct. 23 Q. Is that right? 24 A. Correct. 25 MR. McCLAIN: Thank you, Dr. Brooks. That's 0032 1 all the questions I have. 2 EXAMINATION 3 BY MR. MACE: 4 Q. Doctor, as part of your training and experience, 5 you're familiar with some of the literature on bronchiolitis 6 obliterans? 7 A. Correct. 8 Q. And you agree that exposure to the following 9 substances have been associated with bronchiolitis 10 obliterans. Ammonia? 11 A. I -- I would say it would be tough for ammonia to -- 12 to cause bronchiolitis obliterans. I mean, it's been -- 13 there are various things that ammonia has caused. Most of 14 it, because it's so soluble, it mostly gets up in the upper 15 airways. So a lot of these things that are not soluble, like 16 oxides of nitrogen, have the capacity to get down into the 17 lower airways and therefore produce fibrosis. 18 So I would say I've never seen bronchiolitis 19 obliterans from ammonia, and I would say I would question the 20 report of bronchiolitis obliterans from ammonia. 21 Q. Chlorine? 22 A. Chlorine gas? I would say it would be very rare, 23 if -- if ever, with chlorine gas. I mean, there's a 24 zillion -- a lot of chlorine gas exposures, a lot of 25 literature on that, and very few -- most of the chlorine 0033 1 people, exposed people, clear up. 2 Q. Solvents such as trichlorethylene? 3 A. No. 4 Q. Ozone? 5 A. No. 6 Q. Okay. Are you familiar with any of the published 7 literature by Talmadge King and others that list these types 8 of exposures as being potential causes of bronchiolitis 9 obliterans? 10 A. Yes, I'm -- I'm familiar with this chapter in the 11 book, "Pulmonary Fibrosis" or whatever it is called. And -- 12 and I think he's written some articles on it. He's -- and 13 he's a very -- you know, he's considered an expert in the 14 area. 15 What he did was, you know, was to mention published 16 reports. I'm just saying that from my perspective I would 17 question those as the cause. 18 Q. Based on your experience? 19 A. Of experience of being interested in -- in -- in 20 high-level exposures of gases, vapors and fumes, yes. 21 Q. Doctor, is it true that there's distinct pathologic 22 findings that can be made on microscopic examination of lung 23 tissue that's diagnostic of bronchiolitis obliterans? 24 A. Yes. 25 Q. And isn't it true that in most cases a conclusive 0034 1 diagnosis of bronchiolitis obliterans cannot be made without 2 pathologic confirmation from tissue samples? 3 A. No, I would not -- I wouldn't agree with that. You 4 can -- I think now we could make diagnosis or at least highly 5 suspect bronchiolitis obliterans without a biopsy. You know, 6 that would be the gold standard; but, of course, in medicine 7 we don't always -- we usually don't have a gold standard. We 8 don't usually have biopsies. 9 So there is clinical -- there are clinical tools, 10 including high -- high resolution computerized tomography; 11 inspiratory, expiratory views; and maybe some 12 pulmonary-function test results and maybe some other things 13 that you could use to make a diagnosis short of a lung 14 biopsy. 15 Q. Isn't it true that fibrosis in obliteration of the 16 distal airways can only be documented by a lung biopsy? 17 A. Well, yes and no. I think that you could -- you 18 could probably do some pulmonary function tests that measure 19 resistance of the small airways and have some idea about the 20 location. I think generally though it's -- you know, those 21 are not as -- as specific as a biopsy, you know. And, again, 22 a biopsy is -- is a gold standard. 23 Q. Isn't it true that a large number of the cases of 24 bronchiolitis obliterans in the U.S. population are 25 idiopathic, without any known cause? 0035 1 MR. McCLAIN: Before now, you mean? 2 A. You talking about today? Yeah. You talking about 3 the -- the -- in the cause? I would say that probably -- you 4 know, first of all, it's rare. I think now with the -- with 5 lung transplantation that was -- it's now -- that's probably 6 the most common cause, post-lung transplantation. 7 A lot of the -- the question whether it's related to 8 some kind of infection is always a consideration; but a lot 9 of the -- a lot of the cases are -- are idiopathic. 10 I wouldn't say that -- I wouldn't know whether 11 they're -- the most common is idiopathic now with so much 12 lung transplantation going on, and that's a significant 13 complication, I think, up to 50 percent in some cases. 14 Q. And, Doctor, in the past based on your training and 15 experience you've stated that lung cancer usually takes 20 to 16 30 years to develop. Correct? 17 A. Lung cancer? 18 Q. Yes, sir. 19 MR. McCLAIN: I'm -- I'm objecting to this. 20 He's not being offered as an expert in this case. 21 He's a fact witness as to what was done in your 22 plant. And I'm leaving this deposition in five 23 minutes. You were two hours late. I'm not going to 24 sit here while you do this fishing expedition on a 25 particular case up there. He's not here to testify 0036 1 about it. 2 If you want to employ him as an expert to talk 3 about lung cancer, go ahead, but we're not having 4 any more questions on lung cancer. Don't answer the 5 question. Go ahead with the next -- next thing. 6 BY MR. MACE: 7 Q. You can answer, Doctor. 8 A. Well, I can't, you know. You know -- you know, I'm 9 here. I think it depends on the situation and, I mean, there 10 is a lot of different -- 11 MR. McCLAIN: I'm leaving -- 12 A. I don't think -- 13 MR. McCLAIN: -- in five minutes. If you're 14 not done with your questions, you better move on to 15 something else. 16 BY MR. MACE: 17 Q. What was -- what was your answer, sir? 18 A. I -- I think that it depends on a lot of different 19 factors and usually takes years, but there may be 20 circumstances when it's less or more or less. 21 Q. Okay. Do you agree that there's differences between 22 a substance being irritating and a substance causing 23 permanent respiratory injury? 24 A. There's a difference between an irritant and a -- 25 something that produces an irreversible lesion, yes. 0037 1 Q. Just because something's irritating doesn't mean 2 that it's going to cause bronchiolitis obliterans. Correct? 3 A. That's correct. 4 Q. Okay. Do you agree that animal studies provide 5 limited information because of species differences, 6 differences in breathing patterns and airway anatomy and 7 differences in susceptibility? 8 A. Animals cause -- lead -- what was the question 9 again? 10 Q. Yeah. Animal studies provide limited information in 11 terms of trying to determine health effects on humans because 12 of these differences? 13 A. Of health effects of what? 14 Q. In terms of inhalation experiments. 15 A. Well, the -- usually the animal studies have 16 specific reasons, so there's a -- there's a rationale. They 17 don't -- you -- you can't equate it with, you know, incidents 18 and things like that; but usually the animal studies have a 19 reason for being performed, often an understanding, better 20 understanding mechanism, for example. 21 Of course, usually animal studies are -- are 22 administered with very high doses, high doses that may not 23 be as comparable to what humans, although sometimes they 24 are, so they -- that -- I think most of the time animal 25 studies are -- are performed to understand mechanisms. 0038 1 Q. Do you agree that it's difficult to correlate the 2 experimental injury in animals with chronic airway 3 obstruction in humans? 4 A. Well, what kind of -- you talking about an acute 5 injury in animals -- 6 Q. Well, in terms of -- 7 A. -- or are you talking about chronic? You can't -- 8 you know, you can't equate an acute injury with a chronic 9 outcome, no. That would be like apples and oranges. But 10 there might be some -- some consideration if you did a -- if 11 you did a chronic study, low level, maybe a lower level. So, 12 for example, those rat studies that were done, they were high 13 levels, so there was more of an acute effect; but I don't 14 know if the studies have been done by NIOSH where they've 15 done a lower level, maybe levels that were closer to what the 16 exposure was in the plants, and then looked to doing that 17 over a period of time and seeing what happens. 18 Q. Doctor, do you agree that exact identification of 19 all toxic agents in a workplace is an absolute necessity when 20 investigating a worker with respiratory symptoms? 21 A. Well, that's what you try to do. I mean, that's 22 what -- that's the usual approach. 23 Q. It often happens that the initial conclusion of what 24 the cause of some physical reaction was is wrong. Correct? 25 A. It -- say that again. 0039 1 Q. Yeah. It often happens that the initial conclusion 2 of what the cause of some physical reaction was turns out to 3 be wrong. Correct? 4 MR. McCLAIN: Depends on whose -- 5 A. Cause -- 6 MR. McCLAIN: -- conclusion. 7 A. -- of -- in other words, the cause in this case, 8 say, of the bronchiolitis obliterans. Is that what you're -- 9 the point you're making? 10 Q. Yes, sir. 11 A. I don't know if they -- if -- if we know what the 12 cause is of -- from the flavoring. 13 Q. And I think you've told us, Doctor, you never 14 determined a cause for the respiratory issues at the 15 TasteMaker plant? 16 A. No, I got fired, so they -- I -- they wouldn't give 17 me an opportunity. Perhaps I could have if I was able to -- 18 to continue with my -- with what I recommended. 19 Q. Do you recall identifying gum arabic and enzymes as 20 potential asthma-inducing agents? 21 MR. McCLAIN: I object to this. If this is 22 from some document that you have that you have yet 23 to produce, I object to it. We've asked for it. 24 MR. MACE: You know, it's been at least a month 25 that we've made documents available. We sent you a 0040 1 letter stating they're ready, waiting for you to 2 inspect. You haven't sent anybody to come look at 3 them. 4 MR. McCLAIN: That's bull. 5 MR. MACE: It is not, sir. 6 MR. McCLAIN: It's bull. You've been 7 negotiating a protective agreement before you'll 8 even let us see it. 9 MR. MACE: That's not true. 10 BY MR. MACE: 11 Q. You can answer the question, sir. 12 A. What was the question? 13 Q. Yeah. Isn't it a fact that you identified gum 14 arabic and enzymes as potential asthma-inducing agents? 15 A. And enzymes? 16 Q. Yes, sir. 17 A. I may have. I don't know. I don't. Those are -- 18 those are potential asthma-causing agents, but I don't recall 19 if I -- if that was what I said. 20 Q. Now, smoking is a recognized cause of emphysema and 21 obstructive lung disease. Correct? 22 A. Yes. 23 Q. And you found a relatively high prevalence of 24 smoking at the TasteMaker plant? 25 A. I don't recall. If I had a report, I'd like to see 0041 1 it. So do you -- are you quoting a report that I -- so, 2 well, you said I -- "You found a high prevalence of smoking 3 at the TasteMaker plant?" which means to me that I must have 4 said that and therefore I must have had a report, which I 5 don't recall. But there must have been a report, which I'd 6 like to see. 7 Q. I've talked to other people that talked to you back 8 at the time period, sir. 9 A. Like who? 10 Q. Well -- 11 A. Like other people? The only one person is 12 Jim Lockey. 13 Q. Sir, you felt that some of the issues in -- the 14 respiratory issues at the TasteMaker plant were probably due 15 to smoking? 16 A. I don't recall saying that. I don't think -- I 17 think the bronchiolitis obliterans was not caused by 18 smoking. 19 Q. Yeah. You did not think that butter flavoring was 20 the cause of any of the respiratory problems at the 21 TasteMaker plant? 22 A. I -- I didn't have any conclusion at that time, 23 because I wasn't given -- allowed enough time to really 24 investigate it further. 25 Q. You never suggested to anyone at TasteMaker that 0042 1 butter flavoring caused any respiratory problems at the 2 plant? 3 A. I could not have -- have done that, because I wasn't 4 really involved long enough to make -- really to study it in 5 more detail. 6 Q. You saw no evidence to suggest that butter flavoring 7 was causing any respiratory problems there? 8 A. I never even specifically examined that butter 9 flavoring, therefore, I can't -- because I didn't examine it, 10 therefore I could not conclude or I cannot conclude that that 11 was not a -- a factor. 12 Q. You talked to Mr. McClain about some of the 13 recommendations or suggestions you made. You never 14 recommended any testing or investigation be made of any 15 butter flavoring at TasteMaker? 16 A. I don't -- I don't think I -- I don't recall, first 17 of all. And I think in my general -- if there are some 18 recommendations, which you're -- which you're indicating, I 19 don't -- I didn't have enough information at that time to 20 identify a specific agent. 21 Q. You didn't recommend any testing or investigation be 22 made of diacetyl at TasteMaker? 23 A. Again, I'd have to answer the same way. I didn't 24 focus on any agent, because I was not able to investigate it 25 in enough detail to come to any kind of specific conclusion. 0043 1 Q. Do you recall that the issues at TasteMaker arose 2 with people using concentrated raw materials? 3 A. I don't know if that was the case. I don't recall. 4 Q. The thought never even occurred to you that any of 5 TasteMakers' customers might have any similar problems. 6 Correct? 7 MR. McCLAIN: Object to the form of the 8 question. 9 A. Oh. I think the thought -- the thought did come in 10 my mind. I couldn't -- I don't recall whether I suggested 11 that that be followed up; but, yes, that's always a 12 consideration. So I -- I did -- it -- it -- it probably did 13 enter my mind. 14 Q. You don't recall expressing any such thought to 15 anyone at TasteMaker, do you? 16 A. Well, if you have my report. I don't know. Is 17 it -- was it in my report? If I could take a look at it, 18 I'd -- I'd be glad to see what I said. 19 Q. So you never suggested to anyone at TasteMaker that 20 you thought there could be a problem to any of TasteMaker's 21 customers. Correct? 22 A. I'd have to take a look at my report. Apparently 23 there is that report that I had. 24 Q. You don't recall any such thoughts being expressed 25 to anyone at TasteMaker? 0044 1 A. I -- I can't recall without looking at the report. 2 If you would like to give me the report, I -- I can recall -- 3 I can recall my -- my memory; but right now I can't without 4 seeing that report. 5 Q. I don't think you ever made a report. Are you 6 testifying you made a report? 7 A. Well, I'm asking. You're -- you're -- you're -- 8 you're stating that "Didn't you say that?" and you're -- 9 you're implying that there is a report, such as the thing 10 with smoking. Now -- 11 Q. I'm not implying there is a report. You 12 obviously -- 13 A. Well, you said -- 14 Q. -- had conversation with people at TasteMaker. 15 Right? 16 A. Well, I never said smoking in that discussion, and 17 you -- so you're quoting something, and you said it was 18 related to somebody said something that knew me or whatever 19 that I had talked to, and I don't recall ever saying that 20 it's due to smoking. 21 Q. Are you telling us, sir, that the thought -- you 22 have a specific recollection of the thought entering your 23 mind that there could be a problem to customers at 24 TasteMaker? 25 A. Yes, I would have -- I would have -- I would have at 0045 1 some point have thought -- worried about that. Just like I 2 worried when we had -- we were doing the -- the enzymes 3 where -- that there's always -- that was always a 4 consideration for the -- the customer, which were looked at 5 that. That was -- so that was -- that was at least in my 6 mind. 7 Whether I voiced that or not, I would say that would 8 have been a consideration, and that might have been something 9 I might have included in my -- my evaluations if I was 10 allowed to continue. 11 Q. Okay. But, sir, you're not saying you have a 12 specific recollection of communicating any such thoughts to 13 anyone at TasteMaker? 14 A. I don't -- I don't know. I can't recall, no, 15 huh-uh. 16 Q. You didn't recommend that TasteMaker make any 17 warnings to its customers? 18 A. I -- it would have been premature to put that 19 warning on there without really doing the study and 20 completing a study. So how can you do a warning without 21 knowing what was going on? I mean, they weren't even real 22 willing to have me do the study. Why would they be putting 23 warnings on there? 24 Q. Sir, your field is occupational medicine. Correct? 25 A. Occupational medicine and occupational pulmonary 0046 1 disease, yes. 2 Q. And you obtained both your undergraduate degree and 3 your M.D. degree from the University of Cincinnati? 4 A. Correct. 5 Q. You told us you used to be a professor at the 6 University of Cincinnati? 7 A. Correct. 8 Q. And you acknowledge that the University of 9 Cincinnati has a very well-respected occupational medicine 10 program? 11 A. Correct. I was head of that. 12 Q. And back in the mid-'90s the University of 13 Cincinnati had extensive expertise in occupational medicine? 14 A. How do you mean that? I mean, there's a lot of 15 places that have extensive expertise in occupational 16 medicine, but -- 17 Q. Do you -- 18 A. Are you talking about occupational medicine in 19 general or occupational lung disease? 20 Q. Well, let's start with the first. Occupational 21 medicine in general? 22 A. Yeah, the University of Cincinnati had expertise in 23 occupational medicine, occupational health. 24 Q. Okay. And they also have expertise in 25 pulmonary-function testing? 0047 1 A. Yes. 2 Q. In fact you mentioned Roy McKay as being one of the 3 people that was at the University of Cincinnati. Correct? 4 A. Correct. 5 Q. And he's someone that you've worked with. You have 6 experience with him professionally in the past? 7 A. Correct. 8 Q. And you respect him as a someone with extensive 9 experience in pulmonary-function testing? 10 A. Yes, and performing spirometry particularly, which 11 is his field; but when you talk about more extensive 12 pulmonary-function testing, such as carbon monoxide, 13 diffusing capacities and other more sophisticated tests, he's 14 not -- he's not been as experienced in that area. His big 15 area is the spirometry and performing and actually doing 16 these spirometry training courses. 17 Q. I believe you told us that Dr. James Lockey was 18 someone that you had recruited to take your place when you 19 left the University of Cincinnati? 20 A. Correct. 21 Q. And he specializes in occupational pulmonary 22 disorders? 23 A. Correct. 24 Q. And he's board certified? 25 A. I don't know. 0048 1 Q. Okay. You've written papers with Dr. Lockey and 2 presented at conferences with him? 3 A. Yes, he was a -- as I -- as I indicated, he came in 4 and he -- he -- he took training with me in occupational lung 5 disease. So I was -- you know, he was a fellow. And then at 6 that time we did a study on -- on -- well, a couple of 7 studies that he did with me. 8 Q. Okay. And -- 9 A. But I was a supervisor at that time. 10 Q. You respect Dr. Lockey professionally? 11 A. Yes. 12 Q. You don't claim that Dr. Lockey's investigation at 13 TasteMaker was anything other than independent, do you? 14 A. No. 15 Q. And back in the mid-'90s your office was located in 16 Tampa? 17 A. Correct. 18 Q. And obviously the University of Cincinnati was a lot 19 closer to the TasteMaker plant than -- than you were? 20 A. Correct. 21 Q. And isn't it true that you recommended to TasteMaker 22 that they involve local expertise from the University of 23 Cincinnati? 24 A. That was one of the recommendations at some point, 25 yes. 0049 1 Q. Do you recall TasteMaker expressing some 2 frustrations with the pace of your work? 3 A. No. I don't know -- the pace of my work, I thought, 4 would be pretty -- was pretty -- pretty -- pretty rapid. I 5 mean, I went -- went over there and had a report within a 6 couple of weeks or so. I don't -- maybe less. I mean, I 7 think I gave -- I came to pretty much of a conclusion after 8 looking at all of the data. I spent a whole day there. 9 So I -- I would -- I would question that they were 10 concerned about the pace of my work, because it wasn't like 11 it was going on for months or -- or years or even several 12 weeks. 13 Q. Are you aware of Dr. Lockey's testimony that your 14 team was having trouble identifying what was going on? 15 MR. McCLAIN: Object to the form of the 16 question. 17 A. My team? 18 BY MR. MACE: 19 Q. Yes, sir. 20 A. It was only -- it was only me. 21 Q. Okay. 22 A. I didn't have a team. And "going on," I don't know 23 how he meant that. I think I -- I pretty well knew what was 24 going on clinically. 25 What the specific agent was, I -- I didn't -- I 0050 1 wasn't able to identify with that short tenure there. 2 Q. And you were asked some questions about 3 microwave-popcorn plant. Is it accurate that you've never 4 been to any microwave-popcorn plant? 5 A. Not that I recall. 6 Q. Okay. You've never examined any current or former 7 employees from any microwave-popcorn plants? 8 A. Not that I recall. 9 Q. You were asked about this "New England Journal of 10 Medicine" article. You had no involvement in preparing that 11 article. Correct? 12 A. Correct. 13 Q. You had no involvement in the peer review of that 14 article? 15 A. No. 16 Q. You're not familiar with the other data that was 17 collected but not included in the article? 18 A. Which was? 19 Q. Well, for example, if you look at the bottom of the 20 first page, it talks about the fact that they had identified 21 more than 100 volatile organic compounds. You've not looked 22 into what any of those are? 23 A. No. Are those available? 24 Q. We're hoping. We've got a foyer request out. 25 A. Well, so how can I have reviewed it if it's not 0051 1 available? 2 MR. McCLAIN: And I don't know why counsel is 3 asking you about if it you don't have any 4 involvement in it. 5 A. Oh, okay. 6 BY MR. MACE: 7 Q. The Hubbs rat study you were asked about, when's the 8 first time you saw this article? 9 A. Oh. I've been aware of this in the past because it 10 was one of the studies that was mentioned and has been 11 mentioned. 12 Q. You had no involvement with that study? 13 A. No. 14 Q. No involvement with any peer review of that article? 15 A. No. 16 Q. In terms of doing some type of monitoring of 17 employees, you're not aware of what work TasteMaker did or 18 did not do in that regard after you were no longer involved? 19 A. No. Not after I was no longer involved, no. 20 Q. Isn't it true, sir, that one of the plaintiffs' 21 attorneys, Steve Crick, used you as an expert witness in 22 another matter? 23 A. I don't know. I don't recall. What was the 24 matter? What was the case? 25 Q. I was going to ask you. Do you know? 0052 1 A. I don't know. I don't recall if he did or not. 2 He's in Missouri? I don't know. 3 Q. I think you said -- your word was "upset" or "mad." 4 You were mad at TasteMaker for replacing you with Dr. Lockey? 5 A. Oh. I was upset because a -- I felt that they -- 6 they were not willing to -- to -- to do a suitable 7 investigation throughout their plants and that I 8 recommended -- I hoped that at least that Jim Lockey and 9 Roy McKay could continue in some way because I thought it was 10 important to get to the bottom of it. 11 MR. MACE: Thank you. I have nothing further 12 for you right now. 13 EXAMINATION 14 BY MR. WOODSIDE: 15 Q. I have one minute of questions at the most, and I'll 16 try and just ask it this way. 17 Dr. Brooks, I represent Bush Boake Allen and 18 International Flavors & Fragrances. Prior to today have you 19 had any contact with either one of those companies, performed 20 any work for either one of those companies or have any 21 knowledge about either one of those companies? 22 A. No. 23 MR. WOODSIDE: Thank you. I have no further 24 questions. 25 MR. McCLAIN: Thank you, Dr. Brooks. 0053 1 MR. MACE: Thank you, sir. 2 VIDEOGRAPHER: This is the end of the 3 deposition. The time is approximately 3:56. 4 THE WITNESS: Waive. 5 (Proceedings concluded at 3:56 p.m.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0054 1 CERTIFICATE OF OATH 2 3 STATE OF FLORIDA 4 COUNTY OF HILLSBOROUGH 5 6 I, the undersigned authority, certify 7 that STUART MERRILL BROOKS, M.D., personally appeared before 8 me and was duly sworn. 9 10 11 WITNESS my hand and official seal this date: 12 February 24, 2005. 13 14 15 16 17 18 19 20 21 ______________________________ 22 BEVERLY L. REPLOGLE 23 Notary Public, State of Florida 24 My Commission DO278463 25 Expires February 25, 2006 0055 1 CERTIFICATE OF REPORTER 2 STATE OF FLORIDA 3 COUNTY OF HILLSBOROUGH 4 5 I, BEVERLY REPLOGLE, certify that I was authorized 6 to and did stenographically report the foregoing deposition; 7 that a review of the transcript was not requested; and that 8 the transcript is a true record of the testimony given by the 9 witness. 10 I further certify that I am not a relative, 11 employee, attorney, or counsel of any of the parties, nor am 12 I a relative or employee of any of the parties' attorney or 13 counsel connected with the action, nor am I financially 14 interested in the action. 15 16 17 Dated: February 24, 2005. 18 19 20 21 22 23 24 25 _________________________ Beverly Replogle