0001
   State of Ohio,     )
                        ) SS:
 2   County of Hamilton.)
 3                          - - -
 4              IN THE COURT OF COMMON PLEAS
 5                          - - -
 6   Timothy Arthur, et al.,   )
                               )
 7                Plaintiffs,  )
                               )
 8         vs.                 ) Case No.: A0307157
                               ) Judge Crouse
 9   International Flavor &    )
     Fragrances, Inc., et al., )
10                             )
                  Defendants.  )
11   
12                          - - -
13   
14         Videotaped deposition of Nancy Higley, a 
15   witness, herein, called by the plaintiffs for cross-
16   examination pursuant to the Ohio Rules of Civil 
17   Procedure, taken before Constance Versagi, Notary 
18   Public in and for the State of Ohio, at the offices 
19   of Squire, Sanders, 4900 Key Tower, Cleveland, Ohio, 
20   on Thursday, April 6, 2006, commencing at 9:41 a.m.
21                          - - -
22                            
23                            
24                            
25                            
0002
 1                          INDEX
 2   WITNESS:               CROSS    REDIRECT     RECROSS
 3   Nancy Higley
 4         By Mr. McClain     6                  230,240,242
 5         By Mr. Mace              175,238,241
 6                          - - -
 7                     E X H I B I T S
 8   Exhibit:                                      Marked
 9         1                                          6
10         2                                         14
11         3                                         14
12         4                                         29
13         5                                         40
14         6                                         42
15         7                                         48
16         8                                         51
17         9                                         53
18         10                                        54
19         11                                        56
20         12                                        62
21         13                                        64
22         14                                        69
23         15                                        71
24         16                                        73
25         17                                        80
0003
 1                 E X H I B I T S (CON'T)
 2   Exhibit:                                      Marked
 3         18                                        83
 4         19                                        87
 5         20                                        93
 6         21                                        96
 7         22                                        100
 8         23                                        105
 9         24                                        107
10         25                                        111
11         26                                        118
12         27                                        119
13         28                                        123
14         29                                        128
15         30                                        129
16         31                                        143
17         32                                        148
18         33                                        153    
19         34                                        158
20         35                                        159
21         36                                        167
22         37                                        186
23         38                                        187
24         39                                        188
25         40                                        189
0004
 1                 E X H I B I T S (CON'T)
 2   Exhibit:                                      Marked
 3         41                                        191
 4         42                                        193
 5         43                                        195
 6         44                                        197
 7         45                                        202
 8         46                                        204
 9         47                                        209
10         48                                        217    
11         49                                        218
12         50                                        219
13         51                                        219
14         52                                        220
15         53                                        221
16         54                                        222                                
17                          - - -
18   
19   
20   
21   
22   
23   
24   
25   
0005
 1   APPEARANCES:
 2   On behalf of the Plaintiffs:
 3   
           Kenneth B. McClain, Esq.
 4         Steven E. Crick, Esq.
           Humphrey, Farrington & McClain
 5         221 West Lexington, Suite 400
           Independence, Missouri 64051
 6         816-836-5050
 7                and       
 8         Mark Wintering, Esq.
           Robert E. Sweeney Company
 9         1500 Illuminating Building
           Cleveland, Ohio  44113
10         216-696-0606
11   
12   On behalf of the Defendants International Flavors & 
     Fragrances and Bush Boake Allen Corporation:
13         
           Frank C. Woodside, III, Esq.
14         Dinsmore & Shohl
           1900 Chemed Center
15         255 E. Fifth Street
           Cincinnati, Ohio  45215
16         513-977-8266
17   On behalf of the Defendant Givaudan:
18         Damond R. Mace, Esq.
           Squire, Sanders
19         4900 Key Tower
           127 Public Square
20         Cleveland, Ohio  44114
           216-479-8500
21   
22   Also Present:
23         Steve Mengelkamp, videographer
24                          - - - 
25                
0006
 1                VIDEOGRAPHER:     We're on the record 
 2         at 9:41.  
 3                      NANCY HIGLEY
 4   of lawful age, being first duly sworn, as
 5   hereinafter certified, was examined and testified as 
 6   follows: 
 7                MR. WOODSIDE:     I believe we have an 
 8         understanding that an objection made by one 
 9         defendant is as though made by all defendants 
10         so we don't have to clutter up the record?
11                MR. McCLAIN:      Yes, that's correct.
12                    CROSS-EXAMINATION
13   By Mr. McClain:
14   Q     Would you state your full name, please?
15   A     Nancy Ann Higley.
16   Q     Miss Higley, where do you live?
17   A     In New York.
18   Q     Who do you work for currently?
19   A     PepsiCo.
20   Q     How long have you been an employee of PepsiCo?
21   A     A year-and-a-half.
22   Q     What is your position at PepsiCo?
23   A     Vice-president product safety, and regulatory 
24         -- no, that is my old one.  Excuse me.  
25         Scientific and regulatory affairs.
0007
 1   Q     Did you recently change positions within 
 2         PepsiCo?
 3   A     No.
 4   Q     You've been at PepsiCo for a year-and-a-half, 
 5         where did you work before you worked at 
 6         PepsiCo?
 7   A     Givaudan.
 8   Q     What was you position at Givaudan?
 9   A     When I left I was vice-president product 
10         safety and regulatory assurance.
11                (Exhibit Number 1 
12                 marked for identification.)
13   Q     Let me hand you a copy of what we have been 
14         provided by Givaudan's counsel, which I've 
15         marked as Exhibit 1.  Was that a copy of your 
16         CV at one time?
17   A     Yes.
18   Q     Do you know approximately through what date 
19         this was current?
20   A     November of 2004.
21   Q     From your CV, it appears that you have a Ph.D. 
22         in biochemistry; is that correct?
23   A     That's correct.
24   Q     You did post doctoral work in toxicology?
25   A     That's correct.
0008
 1   Q     Do you consider yourself to be a toxicologist?
 2   A     No, I don't.
 3   Q     Are you a member of any professional 
 4         societies?
 5   A     At the current, currently, no, I'm not.
 6   Q     You have published scientific papers, have you 
 7         not?
 8   A     Yes.
 9   Q     How many have you published in peer reviewed 
10         scientific literature?
11   A     Approximately 15, give or take a few more.
12   Q     You have served on academic faculty; is that 
13         correct?
14   A     As a teaching instructor, yes.
15   Q     Let's talk for a moment about some of your 
16         employment.  It is true you were at one time 
17         an employee of International Flavors & 
18         Fragrances?
19   A     Yes, I was.
20   Q     What was your position at International 
21         Flavors & Fragrances?
22   A     Senior research toxicologist.
23   Q     So you were classified as a toxicologist at 
24         IFF?
25   A     Yes.
0009
 1   Q     You don't consider yourself to be a 
 2         toxicologist even though you were employed as 
 3         one?
 4   A     Yes, I'm not a Board certified toxicologist.
 5   Q     Is that the definition that you use?
 6   A     Yes, it is.
 7   Q     But you were employed in the capacity of a 
 8         toxicologist at International Flavors & 
 9         Fragrances; is that correct?
10   A     That's correct.
11   Q     One of the jobs you had at IFF was to prepare 
12         toxicological assessments for the material 
13         safety data sheet program; is that correct?
14   A     That's correct.
15   Q     You came to work at Givaudan or its 
16         predecessor Tastemaker in 1991; is that 
17         correct?
18   A     Yes.
19   Q     As of 1991, had there been any cases of 
20         bronchiolitis obliterans diagnosed at the 
21         Tastemaker plant?
22   A     No.
23   Q     Let's look at a document.  You were involved 
24         while you were at Tastemaker, which was from 
25         1991 until what year?
0010
 1   A     2004.
 2   Q     During that time period you were involved with 
 3         an organization called FEMA?
 4   A     Correct.
 5   Q     What is FEMA?
 6   A     Flavor Extract Manufacturers Association.
 7   Q     As I understand it, for a time you were on the 
 8         board of governors of FEMA; is that correct?
 9   A     That's correct.
10   Q     During what years were you on the board of 
11         governors of FEMA?
12   A     April of 2004 until December 2004.
13   Q     Did you have any contact with FEMA before 
14         2004?
15   A     Yes.
16   Q     What committees did you serve on or what 
17         involvement did you have?
18   A     I sat on several committees, science 
19         committee, labeling committee, safety 
20         evaluation and coordination committee, alcohol 
21         tax committee, trying to remember them all.  
22         That is the main ones.
23   Q     Approximately what year did you serve on the 
24         science committee, years?
25   A     Would have been 1991 to present.
0011
 1   Q     So you have been on the FEMA science committee 
 2         from 1991 onward?
 3   A     Yes.
 4   Q     In that capacity did you have interaction with 
 5         scientists from other flavoring companies?
 6   A     Yes.
 7   Q     Did you have interaction with scientists from 
 8         International Flavors & Fragrances?
 9   A     Yes.
10   Q     Throughout the entire time period?
11   A     Yes.
12   Q     Did you have contact with scientists from 
13         Bush, Boake & Allen before they were merged 
14         into International Flavors & Fragrances?
15   A     Not on the SECC.
16                MR. WOODSIDE:     I'm sorry, I didn't 
17         hear you.
18                THE WITNESS:      Not on the SECC.
19   Q     SECC is?
20   A     Safety Evaluation Coordination Committee.
21   Q     Did you have contact with other employees of 
22         BBA on other committees?
23   A     Yes.
24   Q     On what committees did you have contact with 
25         them?
0012
 1   A     The international regulatory affairs 
 2         committee.  
 3   Q     Who in particular did you have?
 4   A     David Carol.
 5   Q     Did you have any interaction within FEMA with 
 6         Flavors of North America?
 7   A     Probably not until recently.  I recall they 
 8         have a different name.
 9   Q     Are you saying that you had contact with them 
10         under a different name?
11   A     Possibly, but I don't remember what their name 
12         is.
13   Q     What about Sensient Flavors?
14   A     Yes.
15   Q     What about Fermaniche?
16   A     Yes.
17   Q     What about Sigma Aldrich?
18   A     No.
19   Q     Let's talk somewhat about the FEMA 
20         involvements that you've had.  FEMA has had 
21         several conferences regarding respiratory 
22         hazards in the flavoring industry, have they 
23         not?
24   A     I believe they had two to three, yes.
25   Q     The first one was in 1997?
0013
 1   A     I don't recall the date.
 2   Q     There was one in 2002?
 3   A     Again, I can't recall the date.
 4   Q     Those were triggered by bronchiolitis 
 5         obliterans cases from the Givaudan/Tastemaker 
 6         plant -- 
 7                MR. MACE:         Objection, compound.
 8   Q     -- in Cincinnati, Ohio, correct?
 9   A     I wouldn't characterize it that way.  They 
10         were triggered by FEMA looking at an activity 
11         for which the flavor industry has not 
12         addressed, which would be overall worker 
13         protection.  I wouldn't characterize it as 
14         being triggered by bronchiolitis obliterans.
15   Q     Isn't it true that FEMA characterized the 
16         motivating factor to have the 1997 conference 
17         reports of bronchiolitis obliterans in the 
18         Tastemaker plant in Cincinnati?  
19                MR. MACE:         Objection, 
20         foundation.  
21   A     I wouldn't characterize it that way.  I've not 
22         seen any documents that say it was due to that 
23         fact.
24   Q     Let's look at a couple of documents if we 
25         can.  Let's mark as Exhibit 2.  
0014
 1                (Exhibit Number 2
 2                Marked for identification.)
 3   Q     Document 2 are course materials from a 
 4         conference held by FEMA called respiratory 
 5         safety in the flavor and fragrance workplace, 
 6         held on March 27th of 1997 at the Newark 
 7         Airport Marriott Hotel, are you familiar with 
 8         that conference?
 9   A     Yes, I am.
10   Q     Was this the first conference that FEMA had on 
11         respiratory safety in the flavor and fragrance 
12         workplace?
13   A     Yes.
14   Q     Let me hand you what we will mark as Exhibit 
15         3.  
16                (Exhibit Number 3
17                Marked for identification.)
18   Q     This Exhibit 3 is the respiratory safety in 
19         the flavor and fragrance workplace course 
20         materials from the seminar held on Thursday, 
21         June 13, 2002 at the Newark Airport Marriott.  
22         Are you familiar with this document?
23   A     Yes.
24   Q     Look over with me at Bates number 1261 at the 
25         bottom of the page, please.  I'm referring you 
0015
 1         to this because you said you were unaware that 
 2         it had been characterized that the Tastemaker 
 3         outbreak of bronchiolitis obliterans was the 
 4         reason for the 1997 conference, all right.  
 5         Are you in context with me?
 6   A     Yes, but the page you are referring me to is 
 7         2002.
 8   Q     You are going to have to wait.  
 9   A     All right.
10   Q     Now would you look down in the middle of the 
11         page?
12   A     Yes.
13   Q     In 1996 a member company reported to FEMA on a 
14         confidential basis that a worker developed a 
15         respiratory illness identified as 
16         bronchiolitis obliterans while working in the 
17         manufacture of flavors.
18                That company was Tastemaker, was it 
19         not?
20   A     That is correct.
21   Q     Due to patient confidentiality issues very 
22         little information was available at the time, 
23         the cause of the illness could not be 
24         determined.  Because of this initial report 
25         FEMA and FMA sponsored a workshop in March of 
0016
 1         1997 to focus its members on respiratory 
 2         safety practices; do you see that?
 3   A     Yes.
 4   Q     Does that refresh your recollection that the 
 5         reason for the '97 conference was the report 
 6         by FEMA of bronchiolitis obliterans in its 
 7         Cincinnati plant? 
 8                MR. MACE:         Objection to form.
 9                MR. WOODSIDE:     Your question, 
10         Mr. McClain, you got your companies and words 
11         jumbled in that question, I guarantee.
12   Q     Let me restate it.  Miss Higley, does that 
13         refresh your recollection?
14   A     Yes.
15   Q     That the reason for the '97 conference was the 
16         report that Tastemaker/Givaudan made to FEMA 
17         in 1996?  
18                MR. MACE:         Objection, compound.
19   A     It refreshes my memory that one of the reasons 
20         for the conference in '97 could have been the 
21         Tastemaker meeting.  However -- 
22   Q     I didn't ask you anything else.  I asked if it 
23         refreshed your recollection.  You said that 
24         one of the reasons was.
25                Let me direct your attention to the 
0017
 1         language again.  According to FEMA, because of 
 2         this initial report, FEMA and FMA sponsored a 
 3         workshop in March of 1997 to focus its members 
 4         on respiratory safety practices, true, that is 
 5         what they say?  
 6                MR. MACE:         Objection to form, 
 7         hearsay, and characterization.
 8   A     I can't speculate on -- 
 9   Q     I'm not asking you to speculate.  I'm asking 
10         you is that what it says?
11   A     Yes, it says that.
12   Q     We're going to look at this a little bit more 
13         in depth.  You were involved in this '96 
14         meeting that is discussed within this document 
15         at FEMA; is that correct?
16   A     I was involved in the 1996 meeting, yes.
17   Q     You went there with Dr. James Lockey; is that 
18         correct?
19   A     Not the initial meeting.
20   Q     Did you attend the meeting with Dr. Lockey at 
21         FEMA?
22   A     Yes.
23   Q     With Karen Duros, was she at the meeting also?
24   A     Yes.
25   Q     Was that with Mr. Hallagan, John Hallagan?
0018
 1   A     Yes.
 2   Q     From FEMA?
 3   A     Yes.
 4   Q     FEMA in Exhibit 2 discusses your cluster of 
 5         cases in the following way -- 
 6                MR. WOODSIDE:     Could you direct us 
 7         to the page?
 8                MR. McCLAIN:      Same page, 1261?
 9   A     I believe that is Exhibit 3.  You said Exhibit 
10         2.
11   Q     I'm going to number these on the document so 
12         we keep them straight.  Exhibit 3 then.
13                Would you look at Exhibit 3, at page 
14         1261.  Additional information related to this 
15         incident was obtained in subsequent years and 
16         was reported publicly for the first time in 
17         2001 at a symposium on bronchiolitis 
18         obliterans, BO, sponsored by NIOSH.  At that 
19         symposium a physician reported that five 
20         workers at a flavor manufacturing facility 
21         developed severe respiratory illness that may 
22         be associated with exposure to flavors.  You 
23         see that?  
24                MR. MACE:         Objection to form.  
25   A     Um-hum.
0019
 1   Q     The physician later presented an abstract on 
 2         these cases at the annual meeting of the 
 3         American Thoracic Society in May of 2002 
 4         reporting, quote, an index case of BO in one 
 5         worker, and an additional four workers with 
 6         clinical findings consistent with BO."  The 
 7         abstract made no reference to whether lung 
 8         biopsies were conducted on any of the five 
 9         workers.  The abstract also noted that a 
10         comprehensive review of the site identified 
11         multiple agents as potential causative agents 
12         and most prominently acetaldehyde.  The 
13         abstract concluded this case series indicates 
14         that the manufacturing of food flavors in 
15         relatively large amounts and in high 
16         concentrations, and the use of an aerosolized 
17         manufacturing process may represent a 
18         respiratory hazard in susceptible workers; do 
19         you see that?  
20                MR. MACE:         Objection to form.  
21   A     That is what is written.
22   Q     You're aware, are you not, that that too 
23         attempts or at least was thought by FEMA to be 
24         a reference to workers within your plant?  
25                MR. MACE:         Objection.
0020
 1   A     I can't comment that that would be the 
 2         reference to our company.
 3   Q     You don't know that Dr. Lockey made a 
 4         presentation to the American Thoracic Society 
 5         in 2001, 2002 regarding an index case of BO 
 6         and four additional workers with clinical 
 7         findings consistent with BO; you don't know 
 8         that?
 9   A     I do know he gave a presentation.
10   Q     In 2002?
11   A     Yes.
12   Q     Because in fact, Tastemaker had to waive a 
13         confidentiality agreement he entered into for 
14         him to make that presentation; isn't that 
15         true? 
16                MR. MACE:         Objection.  
17   A     I wouldn't know about that.
18   Q     This is the first time that any public 
19         notification was made of bronchiolitis 
20         obliterans in the Tastemaker/Givaudan plant 
21         that is in 2002; am I right?  
22                MR. MACE:         Objection, 
23         misstates.  Objection, assumes.  Objection to 
24         form.  
25   A     I wouldn't know.
0021
 1   Q     Do you know of any other instance before 2002 
 2         when Givaudan or Tastemaker made public to the 
 3         world that an outbreak of bronchiolitis 
 4         obliterans had occurred in its flavoring 
 5         plant? 
 6                MR. MACE:         Objection, assumes.  
 7         Objection to form.  
 8   A     I wouldn't know.
 9   Q     What do you mean you wouldn't know?  Do you 
10         know of any, that is the question?
11   A     Of any publication?
12   Q     Yes.
13   A     I wouldn't know of any publication in peer 
14         reviewed literature that stated that.
15   Q     Do you know of any publication, period, 
16         newspaper, mimeographed, anything to anyone 
17         outside of Tastemaker or FEMA?  
18                MR. MACE:         Objection.  
19   A     No, I don't.
20   Q     Now, Cincinnati is where the Tastemaker plant 
21         was; is that correct?
22   A     Correct.
23   Q     Carthage Road I think is the address?
24   A     I can't remember, sorry.
25                MR. WOODSIDE:     Mr. McClain, if you 
0022
 1         would like some help. 
 2                MR. McCLAIN:      Yes.
 3                MR. WOODSIDE:     It is the 
 4         neighborhood known as Carthage, on either 69th 
 5         or 7th Street.  
 6                MR. McCLAIN:      We have an expert in 
 7         Cincinnati.
 8   A     69th Street.
 9   Q     The plant is located in the Carthage 
10         neighborhood on 69th Street I'm informed by an 
11         expert on the geography of Cincinnati.
12                 Now, you're a toxicologist aren't 
13         you?  
14                MR. MACE:         Objection.
15   A     I am a biochemist. 
16   Q     Ph.D. chemist, right, trained in toxicology?
17   A     Post doc toxicology.
18   Q     Referred to as a toxicologist within IFF for a 
19         period of time?
20   A     Job title was toxicologist.
21   Q     There is a group within our federal government 
22         called NIOSH, isn't there?
23   A     Yes.
24   Q     What does NIOSH stand for?
25   A     National Institute of Occupational Safety and 
0023
 1         Health.
 2   Q     Where is NIOSH headquartered?
 3   A     I believe Washington.
 4   Q     There is a large NIOSH facility in Cincinnati, 
 5         isn't there?
 6   A     I don't know.
 7   Q     You don't know that there is a large research 
 8         facility for NIOSH in Cincinnati?
 9   A     No, I don't.
10   Q     You are a Ph.D. trained in what field?
11   A     Biochemistry.
12   Q     Worked as a toxicologist within a flavoring 
13         company?
14   A     My job title was toxicologist.
15   Q     You were vice-president of what at Givaudan?
16   A     Product safety and regulatory assurance.
17   Q     One of the agencies that regulates hazards in 
18         the workplace is NIOSH, don't they? 
19   A     NIOSH doesn't regulate, OSHA regulates 
20         workplace hazards.
21   Q     You don't know anything about NIOSH?
22   A     I know about NIOSH.  I don't know where they 
23         are physically located.
24   Q     Doesn't NIOSH investigate outbreaks of 
25         occupational disease in workplace facilities?  
0024
 1                MR. MACE:         Objection.  
 2   A     Yes.
 3   Q     You can request NIOSH to come into any 
 4         workplace facility and investigate an outbreak 
 5         of disease if you would like them to?
 6   A     That is not my expertise.
 7   Q     You know that?
 8   A     Yes.
 9   Q     You were at Tastemaker from 1991; is that 
10         right?
11   A     Correct.
12   Q     The first case of bronchiolitis obliterans at 
13         the Tastemaker plant was in 1993; isn't that 
14         true?  
15                MR. MACE:         Objection, assumes.  
16   A     No, I don't agree.
17   Q     The first report of bronchiolitis obliterans 
18         was in 1993, wasn't it?
19   A     Report would say consistent with bronchiolitis 
20         obliterans.  It doesn't say bronchiolitis 
21         obliterans.
22   Q     The date is 1993, isn't it?
23   A     I don't recall that date.
24   Q     Isn't that consistent with your recollection?
25   A     I can't recall that date.
0025
 1   Q     We will come back to that, we'll look at some 
 2         documents to refresh you on it.  Tell me in 
 3         1993 how many phone calls you made to NIOSH?
 4   A     I made no phone calls to NIOSH.
 5   Q     In 1993 at all?
 6   A     No.
 7   Q     Did you make any to NIOSH in 1994?
 8   A     I made no phone calls to NIOSH.
 9   Q     You had outbreaks of more bronchiolitis 
10         obliterans by 1995 than one case, didn't you?  
11                MR. MACE:         Objection.
12   A     I don't agree.
13   Q     Reports consistent with bronchiolitis 
14         obliterans?
15   A     And reports that would say it was not 
16         workplace related.
17   Q     Yeah, well, NIOSH investigates such things, do 
18         they not?  
19                MR. MACE:         Objection.  
20   A     Yes.
21   Q     They have research scientists capable of 
22         figuring out what is causing workplace 
23         disease; isn't that true?  
24                MR. MACE:         Objection.
25   A     That is true.
0026
 1   Q     Tell the jury how many times in 1995 you 
 2         called NIOSH, asked them to please come in and 
 3         investigate whether or not you had an outbreak 
 4         of bronchiolitis obliterans in the Tastemaker 
 5         plant in Cincinnati.
 6                MR. MACE:         Objection to form.  
 7         Objection, asked and answered. 
 8   A     I did not call NIOSH.
 9   Q     In 1996 we know you went to FEMA, the Flavor 
10         and Extract Manufacturers Association with a 
11         consultant you hired by the name of James 
12         Lockey from the University of Cincinnati; 
13         isn't that true?
14   A     That's true.
15   Q     Did you tell anyone within NIOSH in 1996 about 
16         the outbreak which you clearly recognized by 
17         that point in time?  
18                MR. MACE:         Objection, assumes. 
19         Objection to form.  Objection, argumentative.  
20         Objection, asked and answered.
21   A     Can you repeat the question?
22   Q     Did you call anyone from NIOSH in 1996 -- 
23                MR. MACE:         Same objection.
24   Q     -- tell them what Dr. Lockey found up to that 
25         point?
0027
 1   A     I repeat my answer, I did not call NIOSH.
 2   Q     What about 1997?  
 3                MR. MACE:         Objection.
 4   Q     Did you contact NIOSH in 1997?
 5   A     I repeat, I did not call NIOSH.
 6   Q     Did NIOSH receive an invitation to attend the 
 7         FEMA conference sparked by the outbreak of 
 8         bronchiolitis obliterans in the Tastemaker 
 9         plant in Cincinnati?
10                MR. MACE:         Objection to form.  
11   A     I previously have answered that I do not have 
12         evidence to say that the 1997 workshop was 
13         sparked by Tastemaker.
14   Q     Stop for a minute.  I know that is what you 
15         said, but it's not true you don't have 
16         evidence.  In fact you have Exhibit 2, but you 
17         just don't choose to acknowledge it.
18   A     I'm looking at Exhibit 2.
19   Q     Look at Exhibit 3, which is the 2002 report of 
20         what sparked the conference in '97.
21                MR. MACE:         Objection.
22   Q     It says only one thing, doesn't it, at page 
23         1261, the report by a member company which we 
24         identified as you of bronchiolitis obliterans, 
25         that is what it says, right?  
0028
 1                MR. MACE:         Objection.
 2   A     No, it does not say that.  It says because of 
 3         an illness, could not be determined.
 4   Q     Says because of this initial report, right, 
 5         FEMA and FMA sponsored a workshop in March of 
 6         '97 to focus its members on respiratory safety 
 7         practices, true?  
 8                MR. MACE:         Objection to form.
 9   Q     That is what it says?
10   A     That is what it says.
11   Q     When you say you don't have any evidence, you 
12         do have this document which we marked as 
13         Exhibit 3, do you not?  
14                MR. MACE:         Objection.
15   A     Yes.
16   Q     Now let's get back to our timeline.  Then in 
17         1996 did NIOSH receive an invitation to attend 
18         the FEMA conference that was held regarding 
19         this issue?  
20                MR. MACE:         Objection, 
21         foundation.  
22   A     I don't know.
23   Q     You didn't invite them?
24   A     No.
25   Q     You don't remember any representative of NIOSH 
0029
 1         being there, do you?
 2   A     I don't recall.
 3   Q     You were there?
 4   A     Yes, I was there.
 5   Q     In 1997, following the conference, did you 
 6         ever contact NIOSH to inform them of what 
 7         happened at the conference?  
 8                MR. MACE:         Objection.  Same 
 9         objections. 
10   A     No, I did not contact NIOSH.
11   Q     In 1998 did you contact NIOSH?  
12                MR. MACE:         Same objections.
13   A     I did not at any time contact NIOSH.
14   Q     By 1998 eight cases, eight potential cases of 
15         bronchiolitis obliterans had been identified 
16         within the Tastemaker/Givaudan plant.  I don't 
17         know why I keep say plant.  Let me try it 
18         again.
19                By 1998 at least eight cases of 
20         bronchiolitis obliterans had been identified 
21         within the Tastemaker plant?  
22                MR. MACE:         Objection to form.  
23   A     I don't agree with that.
24   Q     Good.  Let me show you another document.  
25                (Exhibit Number 4
0030
 1                Marked for identification.)
 2   Q     Who is Mr. Andreas Fluckiger?
 3   A     He was with Roche.
 4   Q     Who was Roche?
 5   A     Givaudan owning company at the time.
 6   Q     Roche owned Givaudan, which had purchased 
 7         Tastemaker; is that right?
 8   A     That's correct.
 9   Q     Let see what Mr. Fluckiger who worked for the 
10         owner of Givaudan had to say was known by 
11         Tastemaker.
12                April 30, 2000 is this document.  What 
13         was Mr. Fluckiger's position?
14   A     I don't recall.
15   Q     He was somebody in the toxicology employee 
16         health field?
17   A     I cannot say whether he was a toxicologist or 
18         not.  He was in the employee health field.
19   Q     Summary, when the Cincinnati facility of 
20         Tastemaker was bought by Givaudan Roure, 
21         several current and former employees were 
22         affect by a rare, occupation lung disease, 
23         bronchiolitis obliterans.
24                That is what he says?  
25                MR. MACE:         Objection to form, 
0031
 1         foundation, hearsay, best evidence rule. 
 2   A     That is what is written.
 3   Q     A single cause of these lung diseases has 
 4         never been identified; however, exposure to a 
 5         combination of respiratory irritants appears 
 6         to be the most likely explanation for the 
 7         development of this cluster of cases; do you 
 8         see that? 
 9                MR. MACE:         Same objection.  
10   A     That is what is written.
11   Q     Up until now six cases of BO have been 
12         recognized.  The medical evidence in two 
13         further cases indicates that BO is a possible 
14         diagnosis; however, recognition as an 
15         occupation illness is no longer possible; do 
16         you see that?  
17                MR. MACE:         Same objection, move 
18         to strike.  
19   A     That is what is written.
20   Q     Goes on to say one further claim for BO from 
21         another worker was turned down by Workers' 
22         Comp in the spring of the year 2000.
23                MR. MACE:         Same objection.
24   Q     Is that right?
25   A     That is what is written.
0032
 1   Q     So that is the ninth case, is that right?  
 2                MR. MACE:         Objection.
 3   A     I can't interpret it that way.
 4   Q     That is the one further claim, eight plus one 
 5         is nine, right?
 6   A     I can't interpret it that way.
 7   Q     Do you, with your background, you've had some 
 8         math courses, have you not?
 9   A     I don't interpret it that it would be nine 
10         cases.  It says it was turned down by Workers' 
11         Comp.
12   Q     Up until now six cases have been recognized.  
13         The medical evidence in two further cases 
14         indicate that BO is a possible diagnosis, 
15         right?  
16                MR. MACE:         Objection.
17   Q     That is eight?
18   A     Says possible diagnosis, does not say is 
19         bronchiolitis obliterans.
20   Q     Says one further claim, you see that, it says 
21         one further claim? 
22                MR. MACE:         Objection.
23   Q     That it is the ninth claim, right?  
24                MR. MACE:         Objection.
25   Q     You see that?
0033
 1   A     I see that.
 2   Q     Then he clarifies if you look over to 
 3         understand he's talking about nine total 
 4         people in the middle of the second page of 
 5         exhibit -- what did I identify this as?  
 6                MR. MACE:         4.
 7   Q     It's Exhibit 4.  In the middle of the page, of 
 8         the seven employees whose medical files 
 9         mention the diagnosis of bronchiolitis 
10         obliterans, six have been recognized as 
11         occupational disease cases by Workers' Comp.  
12         The seventh employee didn't file a claim 
13         within a two year time period after the 
14         diagnosis during which such a claim must be 
15         filed.  A ninth employee with obstructive lung 
16         disease filed for recognition as 
17         occupationally related BO; do you see that?  
18                MR. MACE:         Objection.
19   Q     There were nine total potential cases?  
20                MR. MACE:         Same objection, move 
21         to strike, rule of completeness, case was 
22         turned down by Workers' Comp.
23   Q     Do you see he's talking about nine potential 
24         cases?
25   A     He's talking about nine Workers' Comp cases.
0034
 1   Q     That he classified earlier as bronchiolitis 
 2         obliterans, do you see that?  
 3                MR. MACE:         Objection.  Misstates 
 4         the evidence, form.
 5   A     No, I don't agree that is what he's saying.
 6   Q     Look at the first paragraph.  When the 
 7         Cincinnati facility of Tastemaker was bought 
 8         by Givaudan Roure, GR, several current and 
 9         former employees were affected by a rare 
10         occupational lung ideas, bronchiolitis 
11         obliterans, BO; do you see that?  
12                MR. MACE:         Objection.  
13   A     That is what is written.
14   Q     Did you ever then, after -- you did receive 
15         this Exhibit 3.  I have my numbers right, the 
16         2002 FEMA port, right?  Did you ever contact 
17         FEMA and say oh, no -- do you see 1261?
18   A     Sorry.
19   Q     -- there were really nine potential cases in 
20         our plant, not five?  
21                MR. MACE:         Objection.
22   Q     Did you ever contact FEMA and talk about 
23         that?  You were looking for dates, this is a 
24         2000 memo from Mr. Fluckiger and FEMA who you 
25         were closely associated with in 2002, in fact 
0035
 1         served on several scientific committees, was 
 2         reporting to its member that there were only 
 3         five cases in that plant.  Did you ever 
 4         contact FEMA and say oh, no, there were nine 
 5         potential cases in the plant?  
 6                MR. MACE:         Objection, assumes, 
 7         misstates the evidence.  Objection to form.  
 8   A     I don't think there are nine cases.
 9   Q     Did you ever contact them, tell them there 
10         were at least six confirmed cases according to 
11         our consultant of the owner of our company?  
12                MR. MACE;         Objection.
13   A     I don't think there were six cases.
14   Q     Did you ever supply them this memo from 
15         Mr. Fluckiger, regarding how many cases there 
16         actually were at the Givaudan plant when they 
17         were referring the entire industry to what had 
18         occurred at a plant in 2002?  
19                MR. MACE:         Objection, form, 
20         assumes, mischaracterization.  
21   A     I did not give FEMA the internal memo dated 
22         April 30, 2000.
23   Q     Just for the record, Mr. Fluckiger was the 
24         medical director of Roche, was he not?
25   A     I don't recall his title.
0036
 1   Q     In fact when you attended the 2002 conference, 
 2         you never even identified the fact that one of 
 3         the case clusters that was being referred to 
 4         was in the Givaudan plant, did you?  
 5                MR. MACE:         Objection.  
 6   A     No, I did not.
 7   Q     In 2000, you never contacted NIOSH, did you?  
 8                MR. MACE:         Objection, misstates. 
 9   A     I never contacted NIOSH.
10   Q     You didn't contact them in 2002, did you?
11   A     I never contacted NIOSH.
12   Q     You could have contacted NIOSH at any point to 
13         ask for a health hazard evaluation within the 
14         Givaudan plant; isn't that true?  
15                MR. MACE:         Objection to form.  
16         Objection, argumentative.
17   A     Could have been one avenue.  We took another 
18         avenue, which was to hire experts in the field 
19         of occupational health.
20   Q     You hired -- let's tell the jury why you did 
21         that as opposed to calling NIOSH.  If you had 
22         called in NIOSH, you couldn't have kept it 
23         secret; isn't that true?  
24                MR. MACE:         Objection.  
25   A     I don't agree with that.  We called in the 
0037
 1         experts because they were in Cincinnati, 
 2         University of Cincinnati, they had respiratory 
 3         experts that we felt we wanted to use.
 4   Q     But NIOSH was in Cincinnati too?
 5   A     I told you earlier I don't know that.
 6   Q     The reality was that you put your experts 
 7         under confidentiality agreements; isn't that 
 8         true?
 9   A     That's correct.  
10                MR. MACE:         Objection.
11   Q     The first one was Stuart Brooks; isn't that 
12         right?
13   A     I don't know if that is the first one.  Yes, 
14         we did.
15   Q     Stuart Brooks was the first doctor called in 
16         to investigate this matter; isn't that right?
17   A     That's correct.
18   Q     Dr. Brooks said he thought you had 
19         bronchiolitis obliterans in the plant; isn't 
20         that right?
21   A     I don't recall him saying it was bronchiolitis 
22         obliterans.
23   Q     What he said was you ought to survey all the 
24         Givaudan plants worldwide; isn't that true?
25   A     I would have to see a document to that effect.
0038
 1   Q     He also said you ought to warn your customers; 
 2         isn't that right?  
 3                MR. MACE:         Objection, 
 4         mischaracterizes.
 5   Q     Way back in 1994?  
 6                MR. MACE:         Misstate the 
 7         evidence.  Objection to form.  Move to 
 8         strike.  
 9   A     He never told us to contact customers.
10   Q     You put him under a confidentiality agreement, 
11         didn't you?
12   A     I didn't personally.
13   Q     You didn't but you know the company did?
14   A     Yes.
15   Q     Then you fired him, didn't you?  
16                MR. MACE:         Objection.  
17   A     No, we did not fire him.
18   Q     Do you know why he would claim you fired him?  
19                MR. MACE:         Objection.  
20   A     I don't know that he claims that we fired him.
21   Q     Didn't you meet with Mr. Mace before this 
22         deposition?
23   A     Yes.
24   Q     Didn't Mr. Mace tell you he attended a 
25         deposition -- 
0039
 1                MR. MACE:         Objection.
 2   Q     -- of Dr. Brooks?  
 3                MR. MACE:         Objection.  
 4   A     No.
 5   Q     He didn't tell you about that discussion?
 6   A     No.
 7   Q     So you've never read Dr. Brooks' deposition 
 8         about how he was fired after he warned the 
 9         company that bronchiolitis obliterans was 
10         occurring, that you ought to warn your 
11         customers?  
12                MR. MACE;         Objection, misstates 
13         the evidence, mischaracterization.  Objection 
14         to form.  Move to strike. 
15   A     I have not read any depositions.
16   Q     Then you hired Dr. Lockey; isn't that true?
17   A     That is correct.
18   Q     Dr. Lockey was placed under a confidentiality 
19         order too; isn't that true?
20   A     That's correct.
21   Q     In fact, Dr. Lockey never contacted NIOSH to 
22         your knowledge about this incident either, did 
23         he?
24   A     To my knowledge, no.
25   Q     In fact, until 2002 Dr. Lockey never published 
0040
 1         to the medical community anything about what 
 2         had happened at the Tastemaker plant, had he?  
 3                MR. MACE:         Objection, misstates 
 4         the evidence.  Objection to form.  
 5   A     I don't know Dr. Lockey's reference.
 6   Q     Look at Exhibit 5.  
 7                (Exhibit Number 5
 8                Marked for identification.) 
 9   Q     Are you familiar with this?
10   A     Yes.
11   Q     You are familiar this was an abstract that 
12         Dr. Lockey submitted to the American Thoracic 
13         Society in 2002?
14   A     Yes.
15   Q     You are aware that Dr. Lockey had to receive 
16         permission in order to supply this to the 
17         American Thoracic Society because he was under 
18         a confidentiality agreement up until that 
19         time; isn't that true?
20                MR. MACE:         Objection.  
21   A     I don't know the details of his 
22         confidentiality agreement.
23   Q     You know he had to ask permission to publish 
24         this, do you not?
25                MR. MACE:         Objection.  
0041
 1   A     I don't know that.
 2   Q     Do you not believe that to be true?  
 3                MR. MACE:         Objection.  
 4   A     It would be speculative on my part.
 5   Q     Weren't you involved in the process of 
 6         approving him to publish this?
 7   A     I did not write his confidentiality agreement.
 8   Q     But you didn't answer my question.  Weren't 
 9         you involved in the process, the discussion of 
10         whether or not the company should allow 
11         Dr. Lockey to publish this?  
12                MR. MACE:         Objection, assumes.  
13   A     I don't recall.
14   Q     Do you recall in general that that happened?  
15                MR. MACE:         Objection.
16   A     No, I don't.
17   Q     Do you know that Dr. Lockey has testified 
18         under oath about his engagement by Tastemaker?
19   A     I understand he's been deposed, yes.
20   Q     Do you know he testified at first he asked for 
21         permission to publish this, was denied 
22         permission to publish this -- 
23                MR. MACE:         Objection.
24   Q     -- by Tastemaker? 
25                MR. MACE:         Objection, 
0042
 1         foundation.  Objection, characterization.  
 2         Objection, form.
 3   A     I have not looked at anybody's deposition.
 4   Q     Are you aware that Tastemaker initially denied 
 5         him the right to publish this information?  
 6                MR. MACE:         Objection.  
 7   A     No, I'm not.
 8   Q     Well, let's see what you do know.  You do know 
 9         that there was no other publication of this 
10         before 2002, that you are aware of?  
11                MR. MACE:         Objection.
12   Q     That's correct?
13   A     I can't answer that.  I don't know if there 
14         was anything before.
15   Q     I asked what you were aware of.  Are you aware 
16         of anything before this document?
17   A     No.
18   Q     FEMA published in 2004 another document called 
19         Respiratory Health and Safety in the Flavor 
20         Manufacturing Workplace, did they not?
21   A     May I see it?  
22   Q     Sure.  
23                (Exhibit Number 6
24                Marked for identification.)
25   Q     Showing you what we marked as Exhibit 6.
0043
 1   A     I'm sorry, what was your question?  
 2   Q     Do you recall this?
 3   A     Yes.
 4   Q     Would you look over at page 2.  Hang on, I 
 5         want you to look at a different page.  Page 7, 
 6         please.  Now, once again in 2004 there is a 
 7         discussion here regarding the 1996 
 8         confidentiality report to FEMA; do you see 
 9         that?
10   A     Yes.
11   Q     It said in late 1996 a member company reported 
12         to FEMA on a confidential basis that a worker 
13         developed a respiratory illness identified as 
14         bronchiolitis obliterans while working in the 
15         manufacture of flavors, goes on from that; do 
16         you see that?
17                MR. MACE:         Objection.
18   Q     Word for word the same, check it, within the 
19         2002 report?  
20                MR. MACE:         Objection, form, 
21         foundation, best evidence rule, hearsay.
22   Q     You see that, it is the same discussion in 
23         2004 occurred in the 2002 report?  
24   A     They are not identical words.
25   Q     They discuss the same issues?
0044
 1   A     Your question was was it identical words.  
 2         It's not identical words.
 3   Q     Miss Higley, is it the same discussion of 
 4         substance in both documents?  Still talking 
 5         about five workers at a member company plant, 
 6         right?
 7   A     They are discussing five workers with 
 8         respiratory illness.
 9   Q     That is Dr. Lockey who is discussing it; is 
10         that right?
11   A     Does not say it's Dr. Lockey.  Says a 
12         physician.
13   Q     Would you look at page 7, the reference is to 
14         Dr. Lockey's 2002 American Thoracic Society 
15         abstract?
16   A     By inference but it doesn't say Dr. Lockey's 
17         name.
18   Q     It does say Dr. Lockey's name doesn't it, 
19         Lockey 2002; do you see that?
20   A     No, I don't.  Sorry, I do, in parenthesis, 
21         yes, excuse me, yes.
22   Q     It's not by inference, it's by direct 
23         reference, true?
24   A     Dr. Lockey has been referenced.
25   Q     Do you see that even to FEMA, an organization 
0045
 1         which you were on the board of in 2004, you 
 2         still hadn't disclosed that there were more 
 3         than five cases?  
 4                MR. MACE:         Objection.
 5   Q     You still hadn't disclosed to the world that 
 6         Tastemaker/Givaudan was the company, had you?  
 7                MR. MACE:         Objection, compound.  
 8         Objection to form.  Objection, assumes.  
 9   A     I would not conclude that there were five 
10         cases.  As it states in here, respiratory 
11         illness.
12   Q     Back up.  The question to you is did you ever 
13         disclose to your colleagues at FEMA that the 
14         reference to the company that reported this on 
15         a confidential basis, and the doctor involved, 
16         Lockey, was a consultant to Givaudan?  
17                MR. MACE:         Objection, compound.  
18         Objection to form.  
19   A     It was disclosed to John Hallagan.
20   Q     It wasn't disclosed to the rest of the 
21         industry, was it?  
22                MR. MACE:         Objection.  
23   A     No, it was not.
24   Q     It was disclosed to John Hallagan on a 
25         confidential basis, in other words you didn't 
0046
 1         let him tell anybody who it was?  
 2                MR. MACE:         Objection.
 3   Q     Did you?
 4   A     That's correct.
 5   Q     You didn't tell NIOSH who it was?
 6   A     I made no calls to NIOSH.
 7   Q     Even in 2004?
 8   A     I made no calls to NIOSH.
 9   Q     After NIOSH had published an investigation of 
10         microwave popcorn workers that had been 
11         diagnosed with bronchiolitis obliterans that 
12         were exposed to butter flavor in the State of 
13         Missouri; isn't that true?  
14                MR. MACE:         Objection, 
15         characterization.  Objection to form, 
16         foundation.
17   Q     Let me reask the question, so we're clear on 
18         it.
19                In the year 2001 there was a report of 
20         an outbreak of bronchiolitis obliterans in a 
21         microwave popcorn factory in Joplin, Missouri; 
22         isn't that true?
23   A     I don't believe it's Joplin, Missouri, wasn't 
24         it Jasper, Missouri?  
25   Q     Good, you're well acquainted with the area. 
0047
 1         It's exactly Jasper, Missouri, and it's a 
 2         popcorn plant owned by a company called 
 3         Gilster Mary Lee, you are familiar with that?
 4   A     Yes.
 5   Q     There was an outbreak of bronchiolitis 
 6         obliterans reported in the New England Journal 
 7         of Medicine?
 8   A     I believe the New England Journal of Medicine 
 9         says it is consistent with bronchiolitis 
10         obliterans.
11   Q     It was reported?
12   A     To be consistent with bronchiolitis 
13         obliterans.
14   Q     When that report came up, did you raise your 
15         hand and tell NIOSH, wait a minute, we may 
16         have some information that might be helpful to 
17         you, we had an experience that is like that?  
18         Did you ever contact NIOSH and just tell them 
19         what you knew?  
20                MR. MACE:         Counsel, you don't 
21         need to raise your voice.  Objection, 
22         argumentative.  Objection to the form, 
23         compound, assumes, mischaracterizes the 
24         evidence.
25   A     I can't remember the question, please. 
0048
 1                MR. McCLAIN:      Would you read it 
 2         back.
 3                (Question read.)
 4                MR. MACE:         Objection.
 5   A     I do not believe our situation is the same.
 6   Q     We're going to discuss that in just a minute.  
 7         Did you ever contact NIOSH say to them, we had 
 8         an outbreak of bronchiolitis obliterans in our 
 9         flavor plant?  
10                MR. MACE:         Objection, asked and 
11         answered.
12   A     I did not contact NIOSH.
13   Q     You say that you didn't believe your situation 
14         was comparable.  Let's take a look at that 
15         issue.  Look at Exhibit 7.  
16                (Exhibit Number 7
17                Marked for identification.)
18                MR. WOODSIDE:     You skipped 6.
19                MR. CRICK:        6 was the 2004 FEMA.  
20   Q     Are you familiar with this article?
21   A     Yes.
22   Q     It's dated August 1st of 2002; do you see 
23         that?
24   A     Yes.
25   Q     It says in the conclusion section, it's 
0049
 1         entitled clinical bronchiolitis obliterans in 
 2         workers at a microwave popcorn plant; do you 
 3         see that?  
 4                MR. MACE:         Objection to form, 
 5         hearsay, foundation.  
 6   A     That is what it says.
 7   Q     The conclusion says the excess rates of lung 
 8         disease and lung function abnormalities and 
 9         the relation between exposure and outcomes in 
10         this working population indicates that they 
11         probably had occupational bronchiolitis 
12         obliterans caused by the inhalation of 
13         volatile butter flavoring ingredients; do you 
14         see that?
15                MR. MACE:         Objection, form, 
16         foundation, hearsay, best evidence rule, move 
17         to strike.  
18   A     Says that.  I don't believe the article 
19         supports that conclusion.
20   Q     I didn't ask you anything about that.  I asked 
21         whether or not you read what it says?
22   A     What you read is what it says.
23   Q     It discusses diacetyl as being a chemical 
24         found in butter flavor that they analyzed; 
25         isn't that true?  
0050
 1                MR. MACE:         Same objection, move 
 2         to strike.
 3   Q     On the last page, 337, first column, 
 4         inhalation studies, butter flavoring vapors 
 5         producing diacetyl levels, you see that, on 
 6         page 337, the last page of text?
 7   A     Yes.
 8   Q     The page before that, page 336, says the 
 9         relation between cumulative diacetyl exposure 
10         and changes in pulmonary function; you see 
11         that sentence?  
12                MR. MACE:         Objection, rule of 
13         completeness, suggests that diacetyl may be a 
14         cause of respiratory disease or a marker of 
15         causative exposure.
16   Q     Do you see that?
17   A     I'm looking for it.  
18   Q     In the second paragraph.  Let's read that 
19         whole sentence, so you can see where we are.  
20         Do you see in the second column, down near the 
21         bottom of the paragraph, before the start of 
22         the paragraph which continues on the next 
23         page, it says the relation between cumulative 
24         diacetyl exposure suggests that diacetyl may 
25         be a cause of respiratory disease or a marker 
0051
 1         of the causative exposure in this population.
 2                MR. MACE:         Same objection, move 
 3         to strike.
 4   A     Yes, I see it.
 5   Q     You read that at the time; is that right?  
 6                MR. MACE:         Objection.  
 7   A     At what time?  
 8   Q     2002?
 9   A     Yes.
10   Q     When it was published?
11   A     Yes.
12   Q     You said that your situation was different.  
13         You remember that comment that you made?
14   A     Yes.
15   Q     One of the workers who was diagnosed with 
16         symptoms consistent with bronchiolitis 
17         obliterans was Walt Vaske; isn't that true?
18   A     Yes, one of the initial suggestions.
19   Q     Did you know Mr. Vaske personally?
20   A     I probably have met him, yes.
21                (Exhibit Number 8
22                Marked for identification.)
23   Q     Exhibit 5 -- 
24                MR. CRICK:        8.
25   Q     Showing you Exhibit 8.  Are you familiar with 
0052
 1         this document?
 2   A     No, I'm not.
 3   Q     Do you see this says original claim, Workers' 
 4         Comp claim?
 5   A     I see it says original claim, but I'm not 
 6         familiar with this document.
 7   Q     In this document, do you see that it says that 
 8         he was exposed to inhalation of a variety of 
 9         chemicals which were put into the flavorings?  
10                MR. MACE:         Objection, form, 
11         foundation, hearsay, best evidence rule, move 
12         to strike.  Also continued objection on the 
13         Workers' Comp. 
14   A     I'm sorry?  
15                MR. MACE:         He asked do you see 
16         those words there?
17   A     I see those words.
18   Q     Subsequently Mr. Vaske's -- strike that.  Step 
19         back for a minute.  Mr. Vaske did work around 
20         a number of flavoring chemicals, did he not?
21   A     We use many flavoring ingredients at our 
22         plant.
23   Q     Including diacetyl?
24   A     That would be one of many.
25   Q     Including acetaldehyde?
0053
 1   A     It would be one of many.
 2   Q     Mr. Vaske worked with a number of flavoring 
 3         chemicals; is that right?
 4   A     There were a number of flavoring chemicals in 
 5         the plant.  I don't know which ones Mr. Vaske 
 6         would have worked with.
 7   Q     Let's try to see what his document said.  Let 
 8         me show you Exhibit 6.  One of the chemicals 
 9         he worked with was a chemical called 
10         acetaldehyde; isn't that true?
11                MR. WOODSIDE:     It's 9, I believe.  
12                (Exhibit Nubmer 9
13                Marked for identification.) 
14   Q     When you try to do the job of a court reporter 
15         you demonstrate how incompetent lawyers are.
16                 I want to show you what has been 
17         marked as Exhibit 9.  Do you recall that 
18         subsequently Mr. Vaske filed further papers in 
19         the Workers' Comp proceeding in which he 
20         identified that he worked around a number of 
21         flavoring chemicals, including, specifically 
22         but not limited to acetaldehyde.
23                MR. MACE:         Same objection.  
24   A     I was not involved with Workers' Comp claims.
25   Q     You weren't?
0054
 1   A     No, I was not.
 2   Q     Didn't you in fact draft an affidavit which 
 3         was filed in Mr. Vaske's Workers' Comp 
 4         proceeding?
 5   A     I don't recall in relationship to a Workers' 
 6         Comp claim.
 7   Q     You don't?
 8   A     Workers' Comp is not part of my job function.
 9   Q     Are you telling the jury you didn't file an 
10         affidavit in Mr. Vaske's Workers' Comp action?
11   A     I don't recall.  My job function is not to 
12         file Workers' Comp claims.
13   Q     I see.  
14                (Exhibit Number 10
15                Marked for identification.)
16   Q     We will mark Exhibit 10.  Do you see your 
17         affidavit in this document?
18   A     Not yet.
19   Q     It's at Bates number 11085.  Do you see your 
20         affidavit?
21   A     Yes, I do.
22   Q     This is Exhibit 10, which is a letter from 
23         Frost & Jacobs, LLP to the Industrial 
24         Commission of Ohio, regarding Walter Vaske's 
25         claim, the claim we were just looking at.  Do 
0055
 1         you see that?  
 2                MR. MACE:         Objection, form, 
 3         foundation, hearsay, best evidence rule.  
 4   A     Yes, I see it.  A letter from Frost & Jacobs.
 5   Q     The number four attachment within this 
 6         document is the affidavit of Nancy A. Higley 
 7         with attached curriculum vitae and material 
 8         safety data sheets; do you see that? 
 9   A     Affidavit of Dr. Nancy Higley, yes.
10   Q     That is you?
11   A     That is correct.
12   Q     That is your affidavit at 11085, is it not?
13   A     Yes, it is.
14   Q     Does this refresh your recollection that in 
15         fact you supplied an affidavit in Mr. Vaske's 
16         Workers' Comp action?
17   A     No.  It refreshes my recollection that I had 
18         an affidavit.  I did not know -- it does not 
19         refresh any recollection that it was 
20         specifically for Mr. Walt Vaske.
21   Q     It doesn't?
22   A     No.
23   Q     Look at paragraph five of your own affidavit, 
24         just above your signature.
25   A     It does.  I didn't recall.
0056
 1   Q     It says I understand that Walter Vaske may 
 2         attribute his bronchiolitis obliterans 
 3         condition to exposure to acetaldehyde; do you 
 4         see that?
 5   A     I see that.
 6   Q     When I became aware of this issue, I conducted 
 7         a comprehensive review of scientific 
 8         literature on the subject of any relationship 
 9         between bronchiolitis obliterans and 
10         acetaldehyde and didn't find any reported 
11         association; do you see that?
12   A     That is what it reads, yes.
13   Q     In fact you are aware now, and can recall, 
14         that Tastemaker -- I'm sorry, Givaudan, denied 
15         that acetaldehyde was the cause of 
16         bronchiolitis obliterans; isn't that true?  
17                MR. MACE:         Objection.
18   A     I wrote in my affidavit I did not find any 
19         scientific literature that would support that.
20   Q     Let me show you the answer which we marked as 
21         Exhibit 11 to Mr. Vaske's claim.  
22                (Exhibit Number 11
23                marked for identification.)
24   Q     Just to refresh your recollection again of 
25         what position Tastemaker was taking in 
0057
 1         Mr. Vaske's case about that issue, which you 
 2         filed the affidavit to support.
 3                MR. MACE:         Objection, form, 
 4         foundation.  Objection to characterization as 
 5         refreshing her recollection, which implies she 
 6         ever had any involvement or recollection.
 7                MR. McCLAIN:      She has no 
 8         recollection of anything, even documents she 
 9         signed. 
10                MR. MACE:         Objection, move to 
11         strike.
12                MR. McCLAIN:      I understand you well 
13         prepared her to say she doesn't remember 
14         anything, Mr. Mace.  It is very clear she did 
15         have a recollection at one time.  I can 
16         attempt to refresh it.  
17                MR. MACE:         Objection, move to 
18         strike comments of counsel.  Objection to 
19         form.
20   Q     Look over would you at the answer of Frost & 
21         Jacobs, the company that is referred to in the 
22         previous document, that is their answer, Frost 
23         & Jacobs?
24   A     I'm sorry, I have never seen this document 
25         before, so I'm not sure what you are referring 
0058
 1         to.
 2   Q     Look at page 4.
 3   A     Of Exhibit 11?
 4   Q     Yes.  Item four says Tastemaker admits 
 5         applicant has the condition bronchiolitis 
 6         obliterans, but is without knowledge or 
 7         information sufficient to form a belief as to 
 8         the truth of the remaining allegations 
 9         contained in paragraph four of the 
10         application, therefore denies them.  
11                MR. MACE;         Same objection, move 
12         to strike.
13   Q     That was the paragraph that referred to 
14         acetaldehyde causing bronchiolitis obliterans; 
15         do you remember that now?
16   A     I've never seen this document.
17   Q     How is it you became aware that Mr. Vaske was 
18         claiming his bronchiolitis obliterans could 
19         have been caused by acetaldehyde then?
20   A     I don't recall when I was made aware.
21   Q     Now you can recall filing this affidavit to 
22         say you did not believe it was acetaldehyde 
23         that caused -- 
24                MR. MACE:         Mischaracterization, 
25         objection to form.
0059
 1   Q     Go ahead.  
 2   A     I recall the affidavit.  But again, I had 
 3         nothing to do with filing Workers' Comp 
 4         claims.  I have never seen this document.
 5   Q     You were employed to assist the lawyers 
 6         defending the bronchiolitis obliterans 
 7         Workers' Comp claim, we see that by this 
 8         affidavit; isn't that true?  
 9                MR. MACE:         Objection to the 
10         characterization.  Objection to form.  
11   A     I was not employed to assist the lawyers.  I 
12         did sign this affidavit.
13   Q     We're mincing words.  You were an employee of 
14         Tastemaker/Givaudan, right?  
15                MR. MACE:         Objection.  
16   A     Yes.
17   Q     The lawyers for the company asked you to fill 
18         out an affidavit to defend the claim that 
19         Mr. Vaske had brought to receive compensation 
20         because he had suffered from bronchiolitis 
21         obliterans while working at the Givaudan 
22         plant, right?  
23                MR. MACE:         Objection form, 
24         compound.  
25   A     No, that is not what they asked me to do.
0060
 1   Q     They asked you to file an affidavit, you 
 2         understood they were defending the claim 
 3         Mr. Vaske brought; is that true?
 4   A     No, that is not true.
 5   Q     They weren't defending the claim that 
 6         Mr. Vaske had brought?  
 7                MR. MACE:         Objection, compound.
 8   Q     Didn't you understand that?
 9   A     No.
10   Q     You didn't understand that Frost & Jacobs were 
11         defending a Workers' Comp claim that Mr. Vaske 
12         brought?
13   A     I was asked to sign the affidavit that 
14         explains what our processes were for filling 
15         out material safety data sheets and to explain 
16         what my findings were with regard to 
17         acetaldehyde.
18   Q     It says here I understand that Walter Vaske 
19         may attribute his bronchiolitis obliterans 
20         condition to exposure to acetaldehyde.  How 
21         did you understand that?  
22                MR. MACE:         Objection, asked and 
23         answered.  
24   A     I was asked to look at the literature search 
25         with regard to acetaldehyde.
0061
 1   Q     Who told you that Walter Vaske attributes his 
 2         bronchiolitis obliterans to acetaldehyde?
 3   A     I can't recall.
 4   Q     Wasn't it the lawyers from Frost & Jacobs?  
 5                MR. MACE:         Objection.  
 6   A     I can't recall.
 7   Q     Let's make it clear.  As of 1998 it was not 
 8         the position of Givaudan that acetaldehyde 
 9         caused bronchiolitis obliterans, was it?  
10                MR. MACE:         Objection.  
11   A     I need you to repeat that.  
12                (Question read.)
13   A     We had a suspicion that acetaldehyde was 
14         consistent with causing respiratory illnesses.
15   Q     You took that position somewhere?
16   A     That acetaldehyde -- 
17   Q     Caused bronchiolitis obliterans?
18                MR. MACE:         Objection.
19   A     No, I did not take that position.
20   Q     No, in fact you took the opposite position, 
21         didn't you?  
22                MR. MACE:         Objection.   
23   A     Yes.  
24                VIDEOGRAPHER:     Off the record at 
25         10:52.  
0062
 1                (Recess taken.)
 2                VIDEOGRAPHER:      Back on the record 
 3         at 11:13.
 4   Q     We were talking about Mr. Vaske's Workers' 
 5         Comp case.  I want to take a step back from it 
 6         before we come around to the issue we were 
 7         addressing, which was what caused his 
 8         bronchiolitis obliterans.  When we broke we 
 9         were looking at your affidavit that you filed 
10         that said it was not acetaldehyde, so let's 
11         look at some of this history and some of these 
12         other workers involved, then we will come back 
13         to Mr. Vaske, okay?  
14                MR. MACE:         Objection, 
15         mischaracterization, move to strike counsel's 
16         comments.
17   Q     First of all, let's look at the employees who 
18         were diagnosed with bronchiolitis obliterans 
19         at the Tastemaker plant.  
20                (Exhibit Number 12
21                Marked for identification.)
22   Q     Let me hand you what we will mark as Exhibit 
23         12.  This is a document which was marked 
24         Mr. Hochstrasser's deposition, do you know 
25         Mr. Hochstrasser?
0063
 1   A     Yes.
 2   Q     Addressed to him.  John, listed below are the 
 3         eight current or past employees with the 
 4         confirmed diagnosis of bronchiolitis 
 5         obliterans, and the one suspected case.  Do 
 6         you see again referring to the nine cases that 
 7         were identified in Mr. Fluckiger's memo we 
 8         looked at a few minutes ago?  
 9                MR. MACE:         Objection form, 
10         foundation, hearsay, best evidence rule, 
11         mischaracterization, assumes, move to strike.
12   A     I can't connect this was Mr. Fluckiger's memo 
13         because it doesn't mention Mr. Fluckiger on 
14         here.
15   Q     Do you remember Mr. Fluckiger said you had 
16         eight cases, one possible case, that is nine?  
17                MR. MACE:         Objection.
18   Q     This memo refers to nine bronchiolitis 
19         obliterans cases.  Were there more than nine? 
20                MR. MACE:         Objection, 
21         mischaracterization.  Objection, foundation.  
22         Objection, compound.  
23   A     I recall from Andy's memo nine, yes. 
24   Q     There weren't like 18 were there?
25   A     I recall from Andy's memo the number 9.
0064
 1   Q     There are nine referred to here too, right?  
 2                MR. MACE:         Objection.
 3   A     Eight plus one, yes, nine.
 4   Q     It lists them, Cliff Walker, M.S. McGee, Robin 
 5         Gaskins, Ron Feldcamp, Gary Shea, Walt Vaske, 
 6         right?
 7   A     That's what is written, yes.
 8   Q     Joey Wallace, right?
 9   A     Yes, that is what is written.
10   Q     Janice Irick, correct?
11   A     Yes, that is what is written.
12   Q     These are all names that are familiar to you; 
13         am I right?
14   A     Yes, these names are familiar.
15   Q     These were individuals who were looked at as 
16         potentially having bronchiolitis obliterans at 
17         the Tastemaker plant while you were employed 
18         there; is that true?
19   A     Yes, that's correct.
20   Q     To take us back to the question that I asked 
21         you before, about when various things were 
22         known, who knew them, let me show you a 
23         document that we'll mark as Exhibit 13.  
24                (Exhibit Number 13
25                Marked for identification.)
0065
 1   Q     This is a document which is marked as Exhibit 
 2         13.  The document date is February 18, 1993.  
 3         It refers to a December 8, 1992 meeting.  It 
 4         says the following personnel met to discuss 
 5         the concern.  The group became the core of a 
 6         task assigned to resolve this concern.  You're 
 7         listed there; do you see that?
 8   A     Yes, I see that.
 9   Q     Along with Mike Davis, who was what, the CEO 
10         of the company?
11   A     President, yes.
12   Q     Pellegrino, another chief executive, right?  
13         He ultimately became president.  I don't know 
14         what his title was at this time.  
15   A     I don't recall either.
16   Q     Duros was a lawyer, right?
17   A     That's correct.
18   Q     Schmelzel was the plant manager, right?
19   A     That's correct.
20   Q     Hochstrasser was in charge of environmental 
21         and health issues in the plant, right?
22   A     That's correct.
23   Q     You're listed, then Terri Bonar-Stewart, who 
24         is she?
25   A     Human resources.
0066
 1   Q     The concern that is discussed at the top is, 
 2         two employees working in the Cincinnati 
 3         facility were diagnosed by a pulmonary 
 4         physician as having bronchiolitis obliterans.  
 5         It is important to determine if their disease 
 6         is or could be related to their occupation; 
 7         you see that?
 8   A     Concern was a condition that was defined as 
 9         bronchiolitis obliterans.
10   Q     I didn't ask you that question.  I asked did 
11         you see what I read?
12   A     No, I didn't see what you read.  Excuse me.
13   Q     Two employees working in the Cincinnati 
14         facility were diagnosed by a pulmonary 
15         physician as having bronchiolitis obliterans; 
16         do you see that listed under concern?
17   A     That is what is written, yes.
18   Q     Reads it is important to determine if their 
19         disease is or could be related to their 
20         occupation; do you see that?
21   A     Yes, that is what is written.
22   Q     Now you had two workers in 1993, do you see 
23         that, who had been diagnosed with 
24         bronchiolitis obliterans?  
25                MR. MACE:         Objection, 
0067
 1         foundation.
 2   A     Two employees were diagnosed as having 
 3         bronchiolitis obliterans.
 4   Q     Right.  I want you to go back to Exhibit 3, 
 5         which is the FEMA report, look with me at page 
 6         1261 if you could.  You were aware, were you 
 7         not, that NIOSH would do investigations of 
 8         exposures resulting from bronchiolitis 
 9         obliterans on as little as two people, were 
10         you not?  
11                MR. MACE:         Objection.
12   A     No, I was not.
13   Q     You weren't?
14   A     No, I'm not.
15   Q     First of all, let's read what FEMA, your 
16         organization, says NIOSH did in a case where 
17         two workers in a baking facility were 
18         diagnosed with bronchiolitis obliterans.  
19                MR. WOODSIDE:     Can I interrupt?  
20         Would you speak up just a little, if you don't 
21         mind.  I realize you have a small voice.  It's 
22         difficult for me to hear.  Sorry.  
23   A     Sure, excuse me.
24   Q     It says the possibility that exposure to 
25         flavors in the workplace may result in 
0068
 1         respiratory injury was noted in a 1986 health 
 2         hazard evaluation published by the National 
 3         Institute of Occupation Safety and Health on 
 4         two workers at a facility that mixed liquid 
 5         and powdered flavoring for use in the baking 
 6         industry.  The report concluded that it is 
 7         probable some agent in the mixing room 
 8         produced severe mixed obstructive lung 
 9         disease.  Lung tissue samples, lung biopsy 
10         information from the two workers were not 
11         available but the report concluded that the 
12         clinical picture was more compatible with 
13         bronchiolitis obliterans than with emphysema; 
14         do you see that?
15   A     That is what is written, yes.
16   Q     By this we know that NIOSH conducted a study 
17         when two workers were diagnosed with 
18         bronchiolitis obliterans, correct?
19   A     From this we know that NIOSH conducted a study 
20         of two workers, the clinical picture was 
21         compatible with bronchiolitis obliterans.
22   Q     You we see from the document that I handed you 
23         a second ago which is Exhibit 13, is that the 
24         exhibit you have in front of you that 
25         discusses the fact you had two workers that 
0069
 1         were diagnosed with bronchiolitis obliterans 
 2         in 1993, right?
 3   A     The document indicates two employees, yes.  
 4         One of which is deceased, so it's not a 
 5         current employee at the time of writing of 
 6         this.
 7   Q     What difference does that make?
 8   A     Just wanted to clarify it.
 9   Q     Handing you what we will mark as Exhibit 14.  
10                (Exhibit Number 14
11                Marked for identification.)
12   Q     Now you in fact received a copy of this 1986 
13         report which was the international baker study 
14         in 1995, didn't you?
15   A     I received it.  I don't know what date I 
16         received it.
17   Q     So in 1995 you became aware of the 
18         international baker study that had been done 
19         by NIOSH?
20   A     Yes, in 1995 I received the attached abstract, 
21         yes.
22   Q     So, at least by this date you were aware that 
23         NIOSH did investigations of employee health, 
24         specifically bronchiolitis obliterans in the 
25         food industry; am I right?  
0070
 1                MR. MACE:         Objection.
 2   A     Yes, that is what this report says.
 3   Q     You did not ask NIOSH to come in and make a 
 4         similar investigation of your situation, did 
 5         you?
 6   A     No, we went a different route.
 7   Q     In fact you analyzed the international baker 
 8         study to determine whether or not the workers 
 9         who had bronchiolitis obliterans were exposed 
10         to the same materials that the workers in your 
11         plant that had bronchiolitis obliterans were 
12         exposed to; isn't that right?  
13                MR. MACE:         Objection, 
14         foundation. 
15   A     I analyzed the ingredients, the raw materials 
16         in our plant to see if they were consistent 
17         with what was found in the NIOSH article.
18   Q     Two of the ingredients that you found that 
19         were consistent were acetaldehyde, and also 
20         diacetyl; am I right?
21                MR. WOODSIDE:     Objection, 
22         foundation. 
23                MR. MACE:         Objection.  
24   A     No, you are not right.  
25                (Exhibit Number 15
0071
 1                Marked for identification.)
 2   Q     Look at Exhibit 15.  This is a project team 
 3         meeting dated 14th of September 1995, which is 
 4         a few months after you received the 
 5         International Bakers study; am I right?
 6   A     The dates are, yes.
 7   Q     You were on this project team, you are shown 
 8         here Nancy Higley, regulatory/toxicology?
 9   A     That's correct.
10   Q     With John Hochstrasser and Jim Lockey, right?
11   A     Yes.
12   Q     Janice Dees who was in medical management who 
13         was the one that sent around the abstract from 
14         the International Bakers study; am I right?
15   A     Yes.
16   Q     Look at the -- look back at the document which 
17         is attached here, called raw material 
18         sensitivity list.  You list all the chemicals 
19         that were found in the flavorings in the 
20         International Bakers study that your employees 
21         had been tested to be sensitive to.  The 
22         concerns that EH&S, that is Mr. Hochstrasser's 
23         function had, about the chemicals being used 
24         in your plant; am I right?  
25                MR. MACE:         Objection, form, 
0072
 1         characterization, foundation, hearsay, best 
 2         evidence rule.  
 3   A     No, you are not correct.  What you are not 
 4         correct about, it was not tested for 
 5         sensitivity.  Sensitivity is a scientific 
 6         term.  That column is more reflective of what 
 7         I would say the workers experienced annoyance 
 8         with.  They were not tested.
 9   Q     With that clarification, I'm correct?  
10                MR. MACE:         Objection.  Same 
11         objection.
12   Q     You compared the bakers list, that is the 
13         International Bakers study, employee 
14         sensitivity as you defined it, and the 
15         concerns that Mr. Hochstrasser had regarding 
16         the chemicals being used in your plant; am I 
17         right? 
18                MR. WOODSIDE:     Objection, form. 
19                MR. MACE:         Objection, 
20         foundation, form.  
21   A     I personally did not make this list, no.
22   Q     You were on the team that analyzed it, right?
23                MR. MACE:         Objection, 
24         assumption.
25   Q     Weren't you on the team that analyzed this 
0073
 1         list?  
 2                MR. MACE:         Objection.  
 3   A     I was on the team that received this list.  I 
 4         did not make this list.
 5   Q     On the first page, the only chemicals that 
 6         were on all three lists; the baker list, the 
 7         employee sensitivity, the EH&S concern, were 
 8         acetaldehyde, correct?  
 9                MR. MACE:         Objection, form, 
10         foundation, hearsay.
11   Q     Benzaldehyde, the next page, diacetyl, 
12         correct?
13                MR. WOODSIDE:     Objection, form.
14                MR. MACE:         Objection.
15   A     That appears to be correct.
16   Q     Now, let's go back to Mr. Vaske who you filed 
17         an affidavit that said you didn't believe his 
18         bronchiolitis obliterans was caused by 
19         acetaldehyde.  
20                MR. MACE:         Objection, 
21         mischaracterization.
22   Q     Let's look at what we will mark as Exhibit 
23         16.  
24                (Exhibit Number 16
25                Marked for identification.)
0074
 1   Q     When Mr. Vaske was examined by Dr. Lockey, he 
 2         filled out a questionnaire, did he not?  
 3                MR. MACE:         Objection, 
 4         mischaracterization, assumption, foundation, 
 5         form.
 6   Q     The employees that were diagnosed with 
 7         bronchiolitis obliterans -- let's start again.
 8                 When you were analyzing this issue, 
 9         the employees of Tastemaker went through PFT 
10         testing, did they not?
11   A     Yes, they did.
12   Q     The employees that received that PFT testing 
13         were asked to fill out the questionnaire; am I 
14         right?
15   A     The employees were asked to fill out a 
16         questionnaire.  I'm not -- I do not recollect 
17         where the completion of the questionnaire was 
18         with relation to the PFT.  I'm not sure about 
19         the frequency or staging of it.
20   Q     You are aware that there was a questionnaire 
21         that they filled out?
22   A     Yes.
23   Q     This was Mr. Vaske's questionnaire.  Question 
24         18 asks, at Tastemaker are there any chemicals 
25         or substances that you worked with that seem 
0075
 1         to result in tingling, burning or stinging of 
 2         your eyes, nose or throat or frequent sneezing 
 3         or difficulty breathing; do you see that?
 4                MR. MACE:         Objection, form, 
 5         foundation and hearsay and best evidence.  
 6   A     Yes, that is what is written.
 7   Q     He checks yes, right?
 8   A     Yes.
 9   Q     He lists a series of chemicals and lists all 
10         three of the once that your analysis told you 
11         were on the Bakers list, on the sensitivity 
12         list, and on the E&H concern list of 
13         Mr. Hochstrasser, right?  
14                MR. MACE:         Objection to form, 
15         assumes, characterization, foundation, 
16         hearsay, completeness.
17   Q     That is he lists acetaldehyde, benzaldehyde, 
18         and diacetyl, does he not? 
19                MR. MACE:         Objection.  
20   A     In addition to mustard seed oil, capsaicin, 
21         metholsolithalate, and some others that I 
22         can't read.
23   Q     Sure.  The three I mentioned are there, are 
24         they not? 
25                MR. MACE:         Same objection.  
0076
 1   A     Yes, they are there.
 2   Q     Here is the question.  Did at any time that 
 3         you were at Givaudan or Tastemaker, anyone say 
 4         you know what, there is a real easy way to 
 5         figure this out.  Let's look at these three 
 6         chemicals and see whether any of them will 
 7         cause lung injury in laboratory animals; did 
 8         you ever say that?  
 9                MR. MACE:         Objection, 
10         characterization and object to form.  
11   A     No, that would be scientifically an improper 
12         way to approach it.
13   Q     That is the way NIOSH approached it; isn't 
14         that true?  
15                MR. MACE:         Objection.
16   Q     They did laboratory tests to confirm whether 
17         or not any of the chemicals in the butter 
18         flavor would cause the same change that they 
19         were seeing in the workers; isn't that right?  
20                MR. MACE:         Objection.  
21   A     No, that is not right.  They did laboratory 
22         testing, it did not confirm.
23   Q     They said it confirmed, didn't they? 
24                MR. MACE:         Objection.  
25                MR. WOODSIDE:     Objection.
0077
 1   Q     Wasn't that NIOSH's conclusion?
 2   A     No.
 3   Q     It wasn't?  
 4   A     I don't believe it is.
 5   Q     Let's look at the report again.  Look over 
 6         with me, would you please, would you look at 
 7         page 337 of the article.  It says inhalation 
 8         studies, butter flavoring vapors produce 
 9         diacetyl levels of 352 parts per million, 
10         damage respiratory epithelium in the airway of 
11         rats; do you see that?  
12                MR. MACE:         Objection, form, 
13         foundation, hearsay, best evidence rule, move 
14         to strike.
15   A     Yes, it is referencing another paper.
16   Q     By Hubbs?
17   A     Yes.
18   Q     Employed by NIOSH to do the study on the 
19         butter flavor from the Jasper, Missouri plant; 
20         is that right?
21                MR. WOODSIDE:     Object, foundation.  
22   A     Yes, she works for NIOSH.
23   Q     It says NIOSH scientists chose this exposure 
24         level as one similar to that of possible peak 
25         levels in the space above the heated oil 
0078
 1         within the mixing or holding tanks in the 
 2         popcorn plant.  A peak diacetyl level of 1230 
 3         parts per million was later measured in this 
 4         space, in a tank holding the same butter 
 5         flavoring tested in the animal studies.  
 6         Damage in the rats extended below the basement 
 7         membrane of sloughed respiratory epithelium 
 8         suggesting that repair would probably involve 
 9         airway fibrosis.
10                These preliminary findings in animals 
11         suggest that a volatile ingredient in the 
12         butter flavoring is a biologically plausible 
13         cause of the respiratory effects seen in the 
14         workers in the popcorn plant.  Support for 
15         this hypothesis comes from the findings of a 
16         health hazard investigation at the company 
17         that mixed flavorings in corn starch for the 
18         baking industry.  It refers to the 
19         International Bakers study; do you see that?  
20                MR. MACE:         Objection, form, 
21         foundation, hearsay, best evidence rule, move 
22         to strike.
23   A     That is what it says.  I don't think it 
24         properly characterizes Hubbs.
25   Q     The question I had is, that is how NIOSH 
0079
 1         characterized it.  You said no, you didn't 
 2         think so.  I'm right about that, aren't I?  
 3                MR. MACE:         Objection.  
 4   A     I don't believe that is what you stated.
 5   Q     I stayed that NIOSH said the animal studies 
 6         supported their finding; that is true, isn't  
 7         it?  
 8                MR. MACE:         Objection, form, 
 9         foundation, best evidence rule, hearsay.
10   A     NIOSH is saying that the animal studies 
11         suggest a volatile ingredient in butter 
12         flavoring is biologically plausible.
13   Q     Supporting their conclusion, that is what they 
14         said?  
15                MR. MACE:         Objection.  
16   A     It says it is biologically plausible, doesn't 
17         say it supports their conclusion.  
18   Q     Did you see support for this hypothesis, do 
19         you see that?  
20                MR. MACE:         Objection.
21   A     That support is coming from reference 18.
22   Q     Which is the International Bakers study, which 
23         you also had.
24   A     Right.
25   Q     Did you ever do any animal studies regarding 
0080
 1         any of these three suspected chemicals in your 
 2         plant, benzaldehyde, acetaldehyde or 
 3         diacetyl?  
 4                MR. MACE:         Objection, form, 
 5         characterization, assumption.
 6   A     No, we did not.  
 7   Q     Let me show you what we will mark as 
 8         exhibit -- are we at 17?  
 9                (Exhibit Number 17
10                Marked for identification.)
11   Q     Let me show you what we will mark as Exhibit 
12         17.  This is another questionnaire that 
13         Mr. Vaske filled out, right, it's after the 
14         first one, right?
15   A     That is correct.
16   Q     About a month later, question 3E says, if yes 
17         to part 3D are there any chemicals, 
18         substances, job activities or particular areas 
19         of the plant that seem to result in chest 
20         tightness or breathing difficulty; do you see 
21         that?  
22                MR. MACE:         Objection, form, 
23         foundation, hearsay, best evidence rule.
24   Q     Again he lists diacetyl, benzaldehyde, 
25         acetaldehyde as three chemicals among others 
0081
 1         that cause his problems, right?  
 2                MR. MACE:         Objection, 
 3         characterization.  Same objections, move to 
 4         strike, completeness, capsaicin, punch oil, 
 5         mustard seed oil.
 6   Q     Confirm for Mr. Mace because apparently he's 
 7         not listening, those three were not on your 
 8         list in terms of all three chemicals lining up 
 9         between the Bakers study, your sensitivity 
10         list and EH&S concerns, were they?  
11                MR. MACE:         Objection, 
12         characterization.
13   Q     The only three that meet that criteria are 
14         diacetyl, benzaldehyde and acetaldehyde, 
15         true?  
16                MR. MACE:         Objection.  
17   A     Those three were on the list you referenced, 
18         which is not my list.
19   Q     Your group's list?
20                MR. MACE:         Objection.
21   Q     Right?
22   A     The list that is attached.  There are other 
23         things in this document.
24   Q     Right.  The document I showed you was sent to 
25         you, true?  
0082
 1                MR. MACE:         Objection.
 2   A     It was provided to me in a meeting, yes.
 3   Q     The three chemicals that were highlighted on 
 4         that list, diacetyl, benzaldehyde and 
 5         acetaldehyde were identified by Mr. Vaske in 
 6         this questionnaire dated 10-10-95, true?  
 7                MR. MACE:         Objection.
 8   A     Actually the other ingredients are on the 
 9         list.
10   Q     They are not on each of the lists, are they?
11   A     No, they are not.
12   Q     The only ones on each of the lists are the 
13         three I mentioned; that is benzaldehyde, 
14         diacetyl and acetaldehyde, true?
15   A     Those three are on the list that was attached, 
16         yes.
17   Q     One of the other people we saw in a previous 
18         exhibit was Mr. Feldcamp.  He was another 
19         individual who was identified as having 
20         bronchiolitis obliterans?  
21                MR. MACE:         Objection.
22   Q     Right?
23   A     He was identified on a list.  I don't see a 
24         clinical report that he had bronchiolitis 
25         obliterans.
0083
 1   Q     Do you want to see one?  I'll be happy to 
 2         provide those to you.  We have them on each 
 3         one of these people.  I'm going from your 
 4         company's list.  You remember that list, don't 
 5         you?  
 6                MR. MACE:         Objection.  Move to 
 7         strike the comments.
 8   A     It's on this list, this one you referred to 
 9         that is not dated, Exhibit 12.
10   Q     Do you want to see a date on something; what 
11         is your question?
12   A     At some point I think we need to put this into 
13         context.
14   Q     Great.  In 1997 do you remember that 
15         Mr. Feldcamp was seen at the University of 
16         Cincinnati, diagnosed with bronchiolitis 
17         obliterans associated with his work 
18         environment?  
19                MR. MACE:         Objection, compound, 
20         form, foundation, hearsay.  
21   A     I would not know the date without my memory 
22         being refreshed.
23   Q     Let me refresh your memory.  This is Exhibit 
24         18 
25                (Exhibit Number 18
0084
 1                Marked for identification.)
 2   Q     Dr. Baughman, however you pronounce it, an 
 3         associate of Dr. Lockey; do you see that?
 4   A     Dr. Baughman is an associate of the University 
 5         of Cincinnati.
 6   Q     It says as you know Mr. Feldcamp has been 
 7         diagnosed by myself as having bronchiolitis 
 8         obliterans associated with his work 
 9         environment; do you see that?  
10                MR. MACE:         Objection, form 
11         foundation, hearsay, best evidence rule, rule 
12         of completeness, goes on to talk about 
13         consistent with, may be an infective process, 
14         based on epidemiology.
15   Q     Right?
16   A     That is one of the sentences in here, yes.
17   Q     I'm only showing it to you because you wanted 
18         to see a doctor's diagnosis, so I'm giving you 
19         one; do you see that?  
20                MR. MACE:         Objection.
21   Q     You see the doctor's diagnosis?
22   A     I also see further on clarification.
23   Q     I didn't ask you anything about clarification.  
24         You asked for a doctor's diagnosis, and he 
25         says as having bronchiolitis obliterans 
0085
 1         associated with his work environment, right?  
 2                MR. MACE:         Same objection, rule 
 3         of completeness, goes on to state consistent 
 4         with, an infective process and other 
 5         epidemiology.  
 6   A     You are only reading one part of the 
 7         sentence.  It does go on to qualify it.
 8   Q     So are you saying that he did or didn't have 
 9         bronchiolitis obliterans?
10   A     I do not believe that this is conclusive that 
11         he had bronchiolitis obliterans.
12   Q     Look back at your other exhibit.  That is 
13         Exhibit 12 in front of you, that lists it.  Is 
14         Mr. Feldcamp listed by your company as having 
15         bronchiolitis obliterans?  
16                MR. MACE:         Objection, 
17         characterization.  Objection, asked and 
18         answered, compound. 
19   A     I can't answer because this document has no 
20         date.
21   Q     I don't care what the date is.  
22   A     This could have been prior to this, which 
23         indicates it's inconclusive.
24   Q     What difference does it make?  The answer is 
25         your company said it was bronchiolitis 
0086
 1         obliterans, didn't it?  It doesn't say consist 
 2         with, doesn't say anything like that.  It says 
 3         they have been diagnosed as having 
 4         bronchiolitis obliterans, don't they, in 
 5         Exhibit 12?  
 6                MR. MACE:         Objection, same 
 7         objection, move to strike.
 8   Q     Isn't that what it says?
 9   A     I still believe it needs to be put into 
10         context.  This was made prior to this.
11   Q     Let me stop you for a minute.  I'll let you 
12         say whatever you want after you answer the 
13         question.
14                The document 12 says that, doesn't it, 
15         that they have been diagnosed with 
16         bronchiolitis obliterans?  
17                MR. MACE:         Objection.
18   Q     Isn't that what it says?
19   A     The undated document says -- includes Ron 
20         Feldcamp in the list with a current employee 
21         with a confirmed diagnosis.
22   Q     Of bronchiolitis obliterans?
23   A     The header says confirmed diagnosis.
24   Q     The diagnosis in Exhibit 18 is bronchiolitis 
25         obliterans?  
0087
 1                MR. MACE:         Objection.  
 2   A     With qualifications.
 3   Q     Dr. Baughman was one of the co-authors with 
 4         Dr. Lockey, we saw in Exhibit 5 in his 
 5         abstract, true?  
 6                MR. MACE:         Objection, foundation 
 7         hearsay.
 8   Q     You see that?
 9   A     I see R. Baughman as a co-author in the 
10         abstract, 2002.
11   Q     Let's go to Mr. Feldcamp and his documents, if 
12         we can.  Since we clarified the questions that 
13         you raised, let's look at Exhibit 19.  
14                (Exhibit Number 19
15                Marked for identification.)  
16                MR. MACE:         Objection, move to 
17         strike comments.
18   Q     I direct your attention to page 9.  You see in 
19         answer to question 18 he answers yes to the 
20         question, are the results of any chemicals or 
21         substance that you work with that seem to 
22         result in tingling, burning or stinging or 
23         your eyes, nose or throat, or frequent 
24         sneezing with difficulty breathing; you see 
25         that?  
0088
 1                MR. MACE:         Objection, form, 
 2         foundation, hearsay.  
 3   A     Yes, I see that.
 4   Q     He lists diacetyl, does he not?  
 5                MR. MACE:         Objection, 
 6         completeness, form, foundation, hearsay, best 
 7         evidence rule.  
 8   A     Diacetyl is listed in addition to 
 9         acetaldehyde, benzaldehyde, dimethyl sulfide, 
10         onion, garlic oils and apple oils.
11   Q     We see that diacetyl is listed, acetaldehyde, 
12         benzaldehyde, the three chemicals which you 
13         had listed in the previous summary that we saw 
14         that was consistent between the Bakers study, 
15         your employee sensitivity evaluation, and 
16         EH&S's concern list, true?  
17                MR. MACE:         Objection, 
18         characterization.  Objection, compound.  
19   A     Yes, it's on the list.  The list that -- 
20   Q     Once again, even though Mr. Feldcamp was 
21         diagnosed with bronchiolitis obliterans, 
22         identified those same three chemicals, no 
23         tests was ordered on the three chemicals to 
24         determine whether or not they would cause 
25         respiratory injury in animals, were they?  
0089
 1                MR. MACE:         Objection, assumes, 
 2         compound, characterization, foundation, 
 3         hearsay, argumentative.  
 4   A     I don't believe the letter of 1997 confirms 
 5         that he had bronchiolitis obliterans.  I 
 6         further do not believe that listing on this 
 7         question 18 is indicative of a respiratory 
 8         situation.  It could be stinging of eyes, nose 
 9         or throat.
10   Q     Miss Higley, I understand you want to explain 
11         away this whole thing.  My question is 
12         simple.  Did you ask for any tests to be done 
13         on the three chemicals that he identified that 
14         were consistent with your suspect chemical 
15         list?  
16                MR. MACE:         Objection, move to 
17         strike comments.  
18   A     No, I believe that would have been too narrow 
19         of an approach.
20   Q     Let's talk about the results of your less 
21         narrow approach.  Even today it is your 
22         contention you don't know what caused 
23         bronchiolitis obliterans in your plant, do 
24         you?  
25                MR. MACE:         Objection.
0090
 1   A     I think that medical records are not 
 2         indicative that there are cases of 
 3         bronchiolitis obliterans.  I think our more 
 4         narrow approach was to go after total worker 
 5         protection, a more comprehensive program.
 6   Q     You still don't know today what caused the 
 7         bronchiolitis obliterans in your plant, do 
 8         you?
 9   A     I still do not believe that the medical record 
10         that you are showing me is telling me Ron 
11         Feldcamp has bronchiolitis obliterans.  It 
12         says it is consistent with.
13   Q     Even -- you are not even willing to concede 
14         that any of your workers got bronchiolitis 
15         obliterans; is that right?
16   A     Not this document that I'm looking at here, on 
17         Ron Feldcamp.
18   Q     What other tests did you do, what other 
19         medical evaluations did you make?  Dr. Lockey 
20         concluded that it caused bronchiolitis 
21         obliterans.
22                MR. MACE:         Objection.
23   Q     He was your consultant.
24                MR. MACE:         Objection, 
25         mischaracterization. 
0091
 1   Q     If you didn't believe him, what other tests 
 2         were necessary that you didn't do?  
 3                MR. MACE:         Objection, compound, 
 4         move to strike, misstates the evidence, 
 5         foundation.
 6   A     I don't have a letter from Dr. Lockey that 
 7         indicates Ron Feldcamp has bronchiolitis 
 8         obliterans.
 9   Q     You have his co-author on the paper that they 
10         submitted to the ATS that said you had five 
11         confirmed cases of bronchiolitis obliterans, 
12         don't you?  
13                MR. MACE:         Objection, 
14         mischaracterizes the very document he's 
15         handing.  
16   A     Says clinical findings consistent with 
17         bronchiolitis obliterans.
18   Q     What do you think that means?
19   A     It means that they are not sure.  It is 
20         consistent with it.  Respiratory illness has a 
21         whole variety of manifestations.  It's 
22         consistent with.
23   Q     If they didn't have bronchiolitis obliterans, 
24         what did they have?
25                MR. MACE:         Objection, 
0092
 1         foundation.
 2   A     I'm not a medical doctor.  
 3                MR. McCLAIN:      Let's go off the 
 4         record.  
 5                VIDEOGRAPHER:     We're off the record 
 6         at 11:57.
 7                (Luncheon recess taken.)
 8                VIDEOGRAPHER:     We're on the record 
 9         at 1:18.
10   By Mr. McClain:
11   Q     Would you look at Exhibit 13 that was in front 
12         of you, Miss Higley, Dr. Higley.
13                In the letter marked as Exhibit 13 or 
14         the occupational health concern that we looked 
15         at earlier that talked about two employees 
16         working in the Cincinnati facility were 
17         diagnosed by pulmonary physicians as having 
18         bronchiolitis obliterans.  The two individuals 
19         that they were talking about at the time were 
20         Janice Irick, who is deceased, and Joey 
21         Wallace, correct?  
22                MR. MACE:         Objection, form, 
23         foundation.
24   A     That is what is listed is those two 
25         individuals with that listed cause of death.
0093
 1   Q     There is a third individual that is identified 
 2         as having a respiratory problem, Mr. Cliff 
 3         Walker; is that not right?
 4   A     He's identified as having restricted pulmonary 
 5         function.
 6   Q     He was subsequently diagnosed as having 
 7         bronchiolitis obliterans, was he not?  
 8                MR. MACE:         Objection.
 9   A     I don't have a document to support that.
10   Q     You had the previous one that listed him; am I 
11         right?  
12                MR. MACE:         Objection, 
13         foundation.  
14   A     Previous unsigned, undated document.
15   Q     Sure, okay.  Here is Dr. Lockey's report.  
16                (Exhibit Number 20
17                Marked for identification.)
18   Q     Here is Dr. Lockey's diagnosis of Mr. Cliff 
19         Walker.  It was faxed to Frost & Jacobs, the 
20         legal counsel for Tastemaker, or faxed by 
21         them.  It's from corporate legal, from 
22         Tastemaker to Frost & Jacobs.  If you look 
23         over to the last page, discussion, 
24         Mr. Clifford Walker is a 48 year old gentleman 
25         who has clinical findings as well as 
0094
 1         laboratory results consistent with 
 2         bronchiolitis obliterans; do you see that?  
 3                MR. MACE:         Objection to form, 
 4         foundation, hearsay, best evidence rule, move 
 5         to strike.
 6   A     That is what the document says.
 7   Q     In Dr. Lockey's evaluation of Mr. Walker, he 
 8         identified that he worked in the process 
 9         flavors area; do you see that?
10   A     Yes.
11   Q     He says he noted the following chemical agents 
12         that would cause him to have breathing 
13         problems.  The first one listed is diacetyl; 
14         am I right?  
15                MR. MACE:         Objection to form, 
16         foundation, hearsay, best evidence rule.  
17   A     Number one lists diacetyl.
18   Q     The next two, garlics and toasted that were 
19         giving him problems were not chemicals 
20         identified on all three lists, that is the 
21         International Bakers study, the sensitivity 
22         list, and the EH&S concern list; am I right?  
23                MR. MACE:         Objection.  
24   A     Not one of the ones that was listed on all 
25         three.
0095
 1   Q     Correct?
 2   A     Yes, it's not one of the ones that was listed 
 3         on all three lists.
 4   Q     The only one that is listed is the diacetyl, 
 5         correct?  
 6                MR. MACE:         Objection.  
 7   A     Yes, diacetyl is the only one listed.
 8   Q     What it says in this report that went from 
 9         Tastemaker's legal department to Frost & 
10         Jacobs is diacetyl, this could be added to 
11         butter.  It would reach a certain temperature 
12         and flash.  He would subsequently awaken at 
13         night with chest tightness and cough and 
14         frequently breathing.  This would last 
15         approximately four to five days and resolve.  
16         There is no associated fever, chills, muscle 
17         aches or pains. This occurred two or three 
18         times a week until this butter operation was 
19         transferred to the spray dry area 
20         approximately two years prior to this 
21         evaluation; do you see that?  
22                MR. MACE:         Objection, form, 
23         foundation, hearsay, best evidence rule, move 
24         to strike.  Also rule of completeness, talks 
25         about the occupational exposure at Procter & 
0096
 1         Gamble, Grace Chemical for one year filling 
 2         hoppers with an unknown powdered chemical.  
 3         Frequent chest colds during this one year, did 
 4         not wear a respirator.
 5   Q     Do you see that?
 6   A     The words that you wrote are listed here, or 
 7         the words that you said.
 8   Q     If you look at Exhibit 21 with me.  
 9                (Exhibit Number 21
10                Marked for identification.)
11   Q     This is employee confidential medical and 
12         employment information, known medical 
13         maladies.  You see under asthma where it lists 
14         Mr. Walker?
15   A     Yes, I see that.
16   Q     Originally that is what they thought he had 
17         because it was a restrictive disease; is that 
18         right?  
19                MR. MACE:         Objection.  
20   A     I cannot comment.
21   Q     You saw that originally at least in Exhibit 13 
22         that I showed you that he was not listed as an 
23         individual with bronchiolitis obliterans, but 
24         subsequently Dr. Lockey made that diagnosis in 
25         Exhibit 20?
0097
 1                MR. MACE:         Objection, 
 2         mischaracterization, foundation, form, 
 3         compound.  
 4   A     I don't believe Dr. Lockey made that 
 5         conclusion.  He said consistent with.
 6   Q     You think that is somehow different than 
 7         bronchiolitis obliterans?
 8   A     Yes, I do.
 9   Q     What is the basis for your belief in that 
10         regard?
11   A     Respiratory illnesses can range, have a wide 
12         range of maladies.  If it were bronchiolitis 
13         obliterans, I would expect a medical physician 
14         to say bronchiolitis obliterans, not 
15         consistent with.
16   Q     You don't know that there is any difference?  
17                MR. MACE:         Objection.
18   Q     Bronchiolitis obliterans is consistent with 
19         bronchiolitis obliterans, isn't it?  
20                MR. MACE:         Objection.
21   A     Not being a medical physician, I can't answer 
22         that.
23   Q     Would you disagree that Dr. Lockey is in the 
24         best position to tell you what he meant by 
25         that and if he says Cliff Walker has 
0098
 1         bronchiolitis obliterans, that that is what he 
 2         meant, right?  
 3                MR. MACE:         Objection.
 4   A     I would want to see it was also confirmed by 
 5         other physicians.
 6   Q     If we lined up a 100 physicians, tell the jury 
 7         the truth, no matter what we do, Miss Higley, 
 8         you are going to say you haven't proven that 
 9         they had bronchiolitis obliterans, you haven't 
10         proven that it was caused by anything in our 
11         plant; isn't that true?  
12                MR. MACE:         Objection, 
13         argumentative.  Objection to form.  Objection, 
14         move to strike.  
15   Q     You did nothing to try to confirm or to 
16         dispute the findings of Dr. Lockey, did you?  
17                MR. MACE:         Objection.
18   A     We had Dr. Lockey on retainer as our expert, 
19         we depended on him to give us the information.
20   Q     You are not willing to accept his judgment.  
21                MR. MACE:         Objection.  
22   A     I'm reading and accepting his judgment as 
23         written here, which says consistent with 
24         bronchiolitis obliterans.
25   Q     Look over at the next exhibit that I handed 
0099
 1         you, which is Exhibit 21.  Exposure location, 
 2         do you see that.  This the document that 
 3         specifically lists out Mr. Walker; do you see 
 4         that?
 5   A     On the first page?
 6   Q     No, on Bates 489 at the bottom.
 7   A     I don't see Mr. Walker's name on here.
 8   Q     On the first page?
 9   A     Yes, I see it on the first page.
10   Q     Did you see in Dr. Lockey's history, 
11         occupational history, he notes that he worked 
12         in process flavors, correct, Mr. Walker?
13   A     That's correct.
14   Q     In process flavors from this document we see 
15         limited exposure to liquid chemicals, 
16         diacetyl, sodium hydroxide, hydrochloric acid, 
17         dimethyl sulfide, and garlic and meats, dust 
18         exposure, right?  
19                MR. MACE:         Objection, 
20         foundation, hearsay.  
21   A     Yes, that is what is written.
22   Q     There is no mention that he was exposed to 
23         acetaldehyde, correct?
24   A     That's correct, not on this list.
25   Q     There is no mention made that he was exposed 
0100
 1         to benzaldehyde?
 2   A     No, there is no listing.
 3   Q     When you did these pulmonary function tests in 
 4         the Tastemaker plant, there were a number of 
 5         employees that were found to have decreases in 
 6         pulmonary function tests, in addition to these 
 7         eight individuals who had diagnosed 
 8         bronchiolitis obliterans; am I right?  
 9                MR. MACE:         Objection, compound, 
10         form, foundation, assumption, 
11         characterization.  
12   A     I did not conduct these studies.
13   Q     No, but you are aware of them, are you not?  
14         This is cc'd to you.  
15                (Exhibit Number 22
16                Marked for identification.)
17   Q     Let's start again.  I'm handing you what we 
18         marked as Exhibit 22.  You are cc'd on this 
19         document; is that correct?
20   A     That's correct.
21   Q     This is pulmonary medical surveillance 
22         participants; is that right, that is the 
23         subject of this document?
24   A     That's correct.
25   Q     It says here under results, 424 employees have 
0101
 1         had more than one pulmonary function test 
 2         since 1995.  26 employees, or 16 percent have 
 3         met the criteria, will be administered 
 4         pulmonary function tests on a quarterly basis; 
 5         do you see that?  
 6                MR. MACE:         Objection, 
 7         assumption, characterization.
 8   A     Yes, I see that written.
 9   Q     Those 26 people that were identified had 
10         deficits on pulmonary function tests, 
11         correct?  
12                MR. MACE:         Objection, 
13         foundation.
14   A     Says that there is a summary of the people.  I 
15         don't see where the attached says that the 
16         summary is of people with deficits.  I have to 
17         read this.  I don't consider myself qualified 
18         to make a conclusion of what the deficit would 
19         be.
20   Q     Do you recall that more than the eight 
21         individuals were found to have deficits of 
22         some pulmonary function testing?
23   A     I don't recall that number.
24   Q     You don't recall the number.  Do you recall 
25         any of them that were?
0102
 1   A     I recall there were individuals that were 
 2         administered the pulmonary function tests, 
 3         subsequently monitored with increased 
 4         frequency and referred to Dr. Roy McKay and 
 5         Dr. James Lockey.
 6   Q     You will note that on this chart in the back 
 7         there are 26 individuals listed which 
 8         corresponds with the numbers in the 
 9         accompanying memo, correct?
10   A     There are 26 job titles listed.
11   Q     Then it has a code which says that the A 
12         workers were workers with a greater than a 10 
13         percent drop in FCV or FEV1, correct?  
14                MR. MACE:         Objection, hearsay, 
15         foundation.  
16   A     That is what the footnote says.
17   Q     The B workers drop in FVC or FEV1, less than 5 
18         percent, between 5 and limited detection, 
19         correct?  
20                MR. MACE:         Objection, 
21         characterization, hearsay, foundation.
22   A     It reads drop in FVC or FEV1 greater than or 
23         equal to 5 percent and less than LLN. 
24                MR. WOODSIDE:     Could you speak up.
25   A     Sorry, yes.
0103
 1   Q     The C, was that FVC was less than 65 of the 
 2         predicted value?  
 3                MR. MACE:         Same objection.  
 4   A     FEV1/FVC percent less than 71 percent of 
 5         predicted.
 6   Q     Right.  Now, that study, those numbers have 
 7         never been even published in the format that 
 8         we saw in the FEMA document, that is that 
 9         anonymous number -- or strike that.
10                This information has never been 
11         published anywhere, has it?  
12                MR. MACE:         Objection.
13   Q     Not by FEMA, not in abstract form, not 
14         anonymously, nowhere has this data been given 
15         to Dr. Lockey or someone else for 
16         publication?  
17                MR. MACE:         Objection to form, 
18         compound, characterization, foundation.
19   A     It's been given to Dr. Lockey.
20   Q     As far as you know has this ever been 
21         published?
22   A     To the best of my knowledge, no, it has not.
23   Q     Diacetyl had been a chemical of concern within 
24         Tastemaker even before there were documented 
25         cases of injury within the plant; isn't that 
0104
 1         true?  
 2                MR. MACE:         Objection.
 3   A     Diacetyl had been one of the many chemicals 
 4         that we looked at to consider for hazard 
 5         determination.
 6   Q     There were special precautions to be used 
 7         around diacetyl; isn't that true?
 8   A     Special precautions during dispensing.
 9   Q     Also during spray drying?
10   A     When the predominant material was diacetyl.
11   Q     As an example, whenever liquid diacetyl was 
12         present, a respirator with chemical resistant 
13         gloves had to be worn in the plant; isn't that 
14         right?  
15                MR. MACE:         Objection, 
16         characterization.  
17   A     Was to be worn while they were dispensing the 
18         diacetyl.
19   Q     Whenever the material was in a tank the lid 
20         had to be closed?  
21                MR. MACE:         Objection, form.  
22   A     Is that a question?  
23   Q     Isn't that true?  
24                MR. MACE:         Objection.  
25   A     Can I see the document.
0105
 1   Q     I'm asking you for your memory first.  I'm 
 2         happy to show you the document if you don't 
 3         recall.  
 4   A     I don't recall.
 5                (Exhibit Number 23
 6                Marked for identification.)
 7   A     I didn't write this document.  I don't know 
 8         the details of.
 9   Q     You see 7, whatever material is in any tank 
10         the lid must be closed.  If ventilation 
11         (mechanical) is not connected to the tank or 
12         is unavailable, a respirator must be worn at 
13         all times while in the room; do you see that?
14   A     I see that.  My recollection is that it's 
15         referring to when the material in the tank is 
16         predominantly diacetyl, as it would be if it 
17         was dispensing meat concentrate material.  
18   Q     The point that -- the only point I'm making is 
19         that diacetyl was known even before you had 
20         cases of bronchiolitis obliterans to be a 
21         dangerous material?  
22                MR. MACE:         Objection.
23   Q     True?  
24                MR. MACE:         Vague and ambiguous.  
25   A     I wouldn't classify it as dangerous.  It's 
0106
 1         known to be an irritant to skin and eyes.
 2   Q     Not just an irritant, it will cause severe eye 
 3         burns, won't it?
 4   A     It can cause severe -- cause eye burns and 
 5         irritation to skin, eyes, nose, throat.
 6   Q     Not just eye burns, severe eye burns?
 7   A     I believe that the flavor fragrance data sheet 
 8         does not use the term severe.
 9   Q     Look at your own.  Safety concerns for each 
10         step of the procedure, on the first page, 
11         vapors will cause severe eye burns, right, 
12         burns to eyes?
13   A     I didn't write this.
14   Q     I didn't ask you if you wrote it.  I asked if 
15         it said it?
16   A     It says that.  But that statement is not 
17         consistent with the flavor fragrance 
18         ingredient data sheet for diacetyl.
19   Q     Do you know why someone within Tastemaker 
20         wrote up this inaccurate document?
21                MR. MACE:         Objection, compound, 
22         form, foundation, characterization.  
23   A     It would be speculation on my part.
24   Q     You were there at the time.  
25   A     I did not write this document.
0107
 1   Q     I didn't ask you that.  You were there, 
 2         weren't you?
 3   A     I was at Tastemaker, yes.
 4   Q     Do you remember Mr. Hochstrasser was asked to 
 5         review -- Mr. Hochstrasser asked you to send 
 6         him copies of the literature you received on 
 7         diacetyl in 1993?  
 8                MR. MACE:         Objection.
 9   A     Yes, I recall.
10   Q     Do you recall that at that point in time, in 
11         '93, just after the diagnosis of the employees 
12         who were having respiratory problems, those 
13         that had been diagnosed with bronchiolitis 
14         obliterans, that diacetyl appeared to be a 
15         viable candidate as the possible cause or one 
16         of the causes?  
17                MR. MACE:         Objection, 
18         characterization, assumption.
19   A     I recall diacetyl being one of the list of 
20         ingredients, raw materials for which we wanted 
21         to look into with regard to respiratory 
22         maladies.
23   Q     I'll show you what we marked as Exhibit 24.  
24                (Exhibit Number 24
25                Marked for identification.) 
0108
 1   Q     Does this refresh your recollection that as of 
 2         September 13, 1993, Mr. Hochstrasser, who was 
 3         in charge of environmental health and safety, 
 4         and had a Ph.D. as you did, believed that 
 5         diacetyl still appears to be a viable 
 6         candidate as a possible etiologic agent, or at 
 7         least one of the agents?
 8                MR. MACE:         Objection, form, 
 9         compound.  
10   A     Yes, Mr. Hochstrasser did say in this memo 
11         that diacetyl does still appear to be a viable 
12         candidate as a possible etiologic agent or one 
13         of the agents.
14   Q     It is the only chemical that is called out by 
15         name; isn't that true?
16   A     In this specific memo, yes.
17   Q     Who is Fritzsche, Dodge and Olcott?
18   A     It is a flavor company from years ago.
19   Q     Tastemaker bought them, right?
20   A     No, we did not.
21   Q     Tastemaker owns them?
22   A     No.
23   Q     Or Givaudan does?  
24                MR. MACE:         Objection.
25   Q     Which one?
0109
 1                MR. MACE:         Objection.
 2   A     Neither actually.  They parallel path to the 
 3         Fries & Fries, Tastemaker.  Givaudan prior to 
 4         any of us purchased Fritzsche, Dodge & 
 5         Olcott.  Prior to Givaudan purchasing 
 6         Tastemaker they had purchased Fritzsche, Dodge 
 7         & Olcott.  The two are unrelated.
 8   Q     Fritzsche, Dodge & Olcott was owned by BASF 
 9         Chemicals, were they not? 
10                MR. MACE:         Objection, 
11         foundation.
12   A     Many years ago.
13   Q     BASF Chemicals supplied diacetyl, did they 
14         not?  
15                MR. MACE:         Objection, 
16         ambiguous.  
17   A     BASF didn't supply diacetyl to Tastemaker.
18   Q     Did they supply it to Givaudan?
19   A     No, they do not supply to Givaudan.
20   Q     They were a supplier of diacetyl, were they 
21         not?  
22                MR. MACE:         Objection.
23   A     I believe they were, yes.
24   Q     They were a member of RIFM, were they not?  
25                MR. MACE:         Objection, 
0110
 1         foundation, assumption.  
 2   A     I don't know.  I don't know all the members of 
 3         RIFM.
 4   Q     IFF was a member of RIFM, were they not, when 
 5         you were employed there?
 6   A     Yes, when I was employed there they were a 
 7         member of RIFM.
 8   Q     Givaudan was a member of RIFM, were they not? 
 9                MR. MACE:         Objection, misstates 
10         the evidence.  
11   A     The fragrance division of Givaudan was a 
12         member of RIFM.
13   Q     You are familiar that in 1993 BASF had 
14         conducted a study of the respiratory effects 
15         on rats of exposure to diacetyl; am I right?  
16                MR. MACE:         Objection, form of 
17         the question. 
18                MR. WOODSIDE:     Foundation.
19   Q     You are aware of that, aren't you?
20   A     I'm aware BASF -- 
21                MR. MACE:         You are asking her 
22         today if she is aware?  
23                MR. McCLAIN:      Don't help her.  You 
24         coached her well enough.  She is doing just 
25         fine.
0111
 1                MR. MACE:         Objection, move to 
 2         strike comments of counsel.  Objection to the 
 3         ambiguous question.  
 4                MR. McCLAIN:      Read the question 
 5         back.  
 6                (Question read.)
 7                MR. MACE:         Objection, 
 8         mischaracterization, foundation, and form, 
 9         compound, assumptions.  
10   A     I have seen the report from BASF.
11   Q     Let me hand you what we marked as Exhibit 25.  
12                (Exhibit Number 25
13                Marked for identification.)
14   Q     You're familiar with this study, it has come 
15         to your attention in recent years; is that 
16         correct?
17   A     That's correct.
18   Q     So you are aware that in 1993 BASF had done a 
19         study regarding the respiratory effect of 
20         diacetyl exposure on laboratory animals; am I 
21         right?  
22                MR. MACE:         Objection, 
23         characterization, form.
24   A     That is the date of the study.  It was not 
25         received until 2001.
0112
 1   Q     Not received by RIFM until 2001?
 2   A     That's correct.
 3   Q     But the study was done in 1993?
 4   A     That's what the report says.
 5   Q     Would you look down at the study, on the 
 6         summary.  During the necropsy, do you see 
 7         that?  
 8                MR. MACE:         What page?  
 9   Q     Page 1 of the summary.  First of all, do you 
10         see what the aim of the study was on the 
11         second page?  The one after you are on, to 
12         obtain quantitative animal data in order to 
13         assess a possible hazard by inhalation of the 
14         product; do you see that?
15   A     Yes, this appears to be an acute LC50 study.
16   Q     Going back to the summary, during the necropsy 
17         all animals that died showed general 
18         congestion, focal hyperemia of the lungs, and 
19         empty gastrointestinal tracts were seen 
20         additionally in animals of the mid 
21         concentration group.  Exposure to the high 
22         concentration led to atelectasis and bloody 
23         edema of the lungs, bronchial edema and 
24         intensified hydrothorax; do you see that?  
25                MR. MACE:         Objection, form, 
0113
 1         foundation, hearsay, best evidence rule, move 
 2         to strike.  
 3   A     That is what is written.
 4   Q     Up further in the paragraph, in the low 
 5         concentration clinical examination revealed 
 6         eyelid closure, restlessness, later apathy, 
 7         squatty posture, rumpled fur in all animals; 
 8         do you see that?  
 9                MR. MACE:         Same objection, move 
10         to strike.  Also rule of completeness.  No 
11         macroscopic pathologic findings were noted in 
12         the animals of the low concentration.  
13                MR. McCLAIN:      You are not reading 
14         from the paragraph I'm reading from.
15                MR. MACE:         It's the one you just 
16         read from.
17                MR. McCLAIN:      I'm reading from a 
18         different paragraph now. 
19   Q     Abdominal and respiratory and dragging 
20         respirations as well as respiratory sounds and 
21         reduced general state was seen in a single 
22         animal; did you see that?  
23                MR. MACE:         Same objection, move 
24         to strike.
25   A     That is what is written.
0114
 1   Q     The mid as well as the high concentration 
 2         resulted in an abundance of symptoms 
 3         indicative for respiratory tract injury; do 
 4         you see that?  
 5                MR. MACE:         Objection.  Same 
 6         objection, move to strike.
 7   A     That is what is written.
 8   Q     Last paragraph, histopathology in selected 
 9         organs of single animals from the mid and high 
10         concentration groups revealed extensive 
11         hyperemia of the lungs, necrosis in the 
12         proximal tubules of the kidneys, and 
13         centrilobular swelling of the hepatocytes in 
14         the high concentration as well as moderate 
15         emphysema and focal hyperemia of the lungs  
16         and peripheral swelling of the hepatocytes in 
17         the mid concentration; do you see that?  
18                MR. MACE:         Same objection, move 
19         to strike.
20                MR. WOODSIDE:     Move to strike all as 
21         hearsay.  
22   Q     Do you see that?
23   A     That is what is written.
24   Q     When Mr. Hochstrasser asked you to obtain 
25         studies, did you attempt to go to BASF to find 
0115
 1         out whether or not they had done any studies 
 2         regarding the affect of diacetyl on animals?
 3   A     No, BASF was not a supplier of ours.
 4   Q     BASF was a well known company that 
 5         manufactured diacetyl; isn't that true?  
 6                MR. MACE:         Objection.
 7   A     At that time I would not have known BASF as a 
 8         supplier of diacetyl.
 9   Q     You were a member a RIFM, were you not?  
10                MR. MACE:         Objection.  
11   A     No, I was not.
12   Q     The company was, were they not?  
13                MR. MACE:         Objection.
14   Q     In 1993?
15   A     The fragrance division was, the flavor 
16         division was not.  I am solely with the 
17         flavors division.
18   Q     So you would have just had to make a call over 
19         to the fragrance division to find out whether 
20         or not RIFM had information about the health 
21         effects of diacetyl; did you do that?  
22                MR. MACE:         Objection, 
23         mischaracterization.  
24   A     I would not have done that.
25   Q     Meaning you didn't do it?
0116
 1   A     Correct.
 2   Q     Nor did you sponsor a study of your own, 
 3         correct?
 4   A     Correct.
 5   Q     They do these studies over at NIOSH, don't 
 6         they?  
 7                MR. MACE:         Objection.
 8   Q     In Cincinnati?  
 9                MR. MACE:         Objection.
10   A     I don't know where NIOSH would do the study.
11   Q     Your CV indicates you did an animal study on 
12         acetaldehyde; isn't that true?
13   A     I did a study on acetaldehyde bisulphite.  
14                MR. WOODSIDE:     What was the last 
15         word?
16                THE WITNESS:      Bisulphite.
17   Q     You are familiar with animal studies?
18   A     Yes.
19   Q     You could have found a laboratory to do them 
20         if you wanted to, or if you had been directed 
21         to?  
22                MR. MACE:         Objection, assumes.
23   A     I would have found a laboratory to do it if we 
24         felt there was a need to do it.
25   Q     Subsequently NIOSH did feel a need to do it 
0117
 1         and did one?
 2                MR. MACE:         Objection.
 3   Q     Right?
 4   A     They have published an abstract.
 5   Q     Because what they were trying to do is find 
 6         out what was causing illness among workers, 
 7         not cover it up?  
 8                MR. MACE:         Objection, move to 
 9         strike, form.  
10                MR. McCLAIN:      We need to take a 
11         break for this.
12                VIDEOGRAPHER:      Off the record at 
13         1:53.
14                (Recess taken.)
15                VIDEOGRAPHER:     We're back on the 
16         record at 2:03.
17   Q     What is the FFIDS?
18   A     Flavor Fragrance Ingredient Data Sheet.
19   Q     Those were something that were available to 
20         you; am I right?
21   A     That's correct.
22   Q     In fact, in 1999 you told Dr. Fluckiger you 
23         relied on those; am I right?
24   A     That is correct.
25   Q     Let's look at the FFIDS for diacetyl.
0118
 1                (Exhibit Number 26
 2                Marked for identification.)
 3   Q     Exhibit 26.  Do you recognize this as being 
 4         the FFIDS for diacetyl?
 5   A     Yes, I do.
 6   Q     Who is this produced by?
 7   A     These documents were produced in the late '80s 
 8         when the OSHA standard came in for flavor and 
 9         fragrances and they were produced by an 
10         outside toxicological firm called Environ.  
11                MR. WOODSIDE:     Called what?
12                THE WITNESS:      Environ.
13   Q     There was nine volumes of data provided, 
14         statements relevant to making a health hazard 
15         determination; is that right?
16   A     That is correct.  
17   Q     In this document, which it's dated I think 
18         this is either it's the 9th of February or 
19         it's the 2nd of September '85, right, by the 
20         date on the bottom? 
21                MR. MACE:         Objection, assumes, 
22         foundation.  
23   A     I don't know the code.
24   Q     You know that it's an '85 because you said so 
25         in 1999, right?  
0119
 1                MR. MACE:         Objection.
 2   A     I don't recall.
 3   Q     Let's refresh your recollection.  
 4                (Exhibit Number 27
 5                Marked for identification.)
 6   Q     Exhibit 27 is your letter to Dr. Fluckiger, 
 7         second page, says with regard to the process 
 8         of determining hazard classifications, I take 
 9         full advantage of the RIFM/FEMA flavor 
10         fragrance ingredient data sheet program, 
11         FFIDS; you see that?
12   A     That is what it states, yes.
13   Q     In 1985 RIFM and FEMA commissioned a 
14         toxicology consulting firm to review the 
15         existing data for flavor and fragrance 
16         ingredients; do you see that?
17   A     That's correct.
18   Q     Does that help you remember that the date 
19         shown here on the document is in fact when 
20         these were produced?  
21                MR. MACE:         Objection, 
22         assumption, foundation.  
23   A     The letter supports my previous statement that 
24         said in the '80s RIFM and FEMA did commission 
25         someone.  Some documents have different dates, 
0120
 1         I can't say that is the date.
 2   Q     Well, you say it happened in 1985 in this 
 3         document.  
 4                MR. MACE:         Objection.
 5   Q     That is not the late '80s, that is 1985, 
 6         right?  
 7                MR. MACE:         Objection, vague and 
 8         ambiguous.  Objection to form.
 9   Q     Am I right?
10   A     1985 could be construed to be mid '80s.
11   Q     Not late '80s, right?  
12                MR. MACE:         Objection.  
13   A     That's fine, I agree.
14   Q     There is an '85 on the document I gave you, 
15         exhibit 20 what?
16   A     26.
17                MR. MACE:         Right.  Objection, 
18         characterization.
19   Q     Right?
20                MR. MACE:         Objection.
21   A     There are numbers on the bottom, of which '85 
22         is one of them.
23   Q     Under the health effects data, this is for 
24         diacetyl, inhalation it says it's harmful, 
25         correct?  
0121
 1                MR. WOODSIDE:     Objection as to 
 2         hearsay.  
 3   A     The word harmful is written there.
 4   Q     It lists symptoms, sore throat and coughing, 
 5         right? 
 6                MR. MACE:         Same objection.  
 7   A     That is what is written there.
 8   Q     It may be absorbed.
 9                MR. MACE:         Same.
10   Q     Then says high concentrations cause irritation 
11         of the respiratory tract, correct?
12   A     That is what is written there.
13   Q     Capable of producing systemic toxicity, true?
14   A     That is what is written there. 
15                MR. MACE:         Objection.
16   Q     Then, if you look over on the next page, it 
17         says laboratory animal toxicological data.  
18         Under LD50 oral; ataxia, gasping and coma, 
19         with death occurring within a few days to -- a 
20         few minutes to four days; do you see that?  
21                MR. MACE:         Objection.
22   A     That is what is written there, yes.
23   Q     Then under inhalation under it, other acute 
24         toxicity data, dose duration and pathology, by 
25         inhalation, rats died.
0122
 1                MR. MACE:         Objection.  
 2   Q     Is that right?
 3   A     Lists death.  I don't know if it was one rat 
 4         or more than one rat.
 5   Q     Labored breathing and gasping; am I right?  
 6                MR. MACE:         Objection.  
 7   A     That is what is written here.
 8   Q     At part of this process, when Mr. Hochstrasser 
 9         sent you the notification in 1993 that 
10         diacetyl had to be considered as one of the 
11         causes of the bronchiolitis obliterans, what 
12         steps did you take to obtain copies of these 
13         studies that were referenced in the FFIDS 
14         document which you reviewed?  
15                MR. MACE:         Objection, form, 
16         assumes, compound, mischaracterization, 
17         misstates the evidence, foundation.
18   A     I would have reviewed the references that were 
19         available to me.  Some of these are 
20         proprietary.  I would have done a literature 
21         search.  I would have looked at the scientific 
22         literature review for these materials, I would 
23         have looked at the MSDSs for the suppliers 
24         from which we purchased the material.
25   Q     You told me what you would have done.  Did you 
0123
 1         obtain the studies that were referenced here?
 2                MR. MACE:         Objection.  
 3   A     No, I did not need to get the studies.
 4   Q     We will let a jury decide whether you needed 
 5         to get them, Dr. Higley.  You didn't get them, 
 6         did you?  
 7                MR. MACE:         Objection, move to 
 8         strike.  
 9   A     No, I did not get them.
10                (Exhibit Number 28
11                Marked for identification.)
12   Q     Let me show you what we will mark as Exhibit 
13         28.  Do you recognize the handwriting?
14   A     No, I do not.
15   Q     Says John Hochstrasser, 1993, 10-20-93; do you 
16         see that?  
17                MR. MACE:         Objection, form, 
18         foundation, assumes.  
19   A     Yeah, I see 10-20-93 on page 1.
20   Q     Look over at the page at the word diacetyl may 
21         need a risk assessment.
22                MR. MACE:         What page number?
23                MR. McCLAIN:      347.  
24                MR. MACE:         Objection, form 
25         foundation, hearsay.  
0124
 1   A     This is a different grouping of documents with 
 2         a different date.
 3   Q     9-28-93, that's correct.  This is the way they 
 4         were produced to us.  I don't care whether 
 5         it's a week or two earlier; do you recognize 
 6         the handwriting?
 7   A     No, I do not.
 8   Q     It says diacetyl may need a risk assessment; 
 9         do you see that?  
10                MR. MACE:         Objection, form, 
11         foundation, hearsay, also rule of completeness 
12         but why not get it from supplier.
13   Q     That is exactly right.
14   A     That is what is written at the bottom, yes.
15   Q     Here is the question.  Why didn't you get it 
16         from your suppliers?  
17                MR. MACE:         Objection, assumes.  
18         Objection, foundation.
19   A     Risk assessment is inappropriate at this 
20         point.  Under the hazard communication the 
21         first thing you need to do is hazard 
22         identification.  That is different than doing 
23         a risk assessment.  We would have gotten 
24         hazard identification information from our 
25         suppliers.  It is up to us to do the risk 
0125
 1         assessment, given the plant conditions.  You 
 2         don't get a risk assessment from suppliers.
 3   Q     When Mr. Mace asked you to read that, the 
 4         suggestion was inappropriate?  
 5                MR. MACE:         Objection, move to 
 6         strike.
 7   Q     So the question is, did you ever do a risk 
 8         assessment?  
 9                MR. MACE:         Objection.
10   A     We did a hazard assessment.
11   Q     Is that different than a risk assessment?
12   A     Yes, it is.
13   Q     You didn't do a risk assessment, did you?  
14                MR. MACE:         Objection, vague and 
15         ambiguous.  
16   A     Not a formal risk assessment.
17   Q     Let's talk about all the things you didn't do.
18                You didn't do your own animal studies, 
19         right?
20   A     We did not do animal studies.  It was not 
21         necessary.
22   Q     Once again, Miss Higley, the jury will decide 
23         whether it was necessary or not.  People's 
24         lives are at stake here.  It will be their 
25         determination.  
0126
 1                MR. MACE:         Objection.  Move to 
 2         strike counsel's comments.
 3   Q     You didn't do it, did you?
 4   A     We didn't do animal studies on diacetyl.
 5   Q     Likewise you didn't request the animal studies  
 6         that were identified in the FFIDS, did you?  
 7                MR. MACE:         Objection.  
 8   A     No.
 9   Q     You didn't do a risk assessment on diacetyl 
10         either, did you?
11   A     We did not do a formal risk assessment.
12   Q     Even though diacetyl, by 1993, had been 
13         identified as a possible cause of 
14         bronchiolitis obliterans in your plant?  
15                MR. MACE:         Objection.
16   A     I don't agree that diacetyl was identified as 
17         a possible cause of bronchiolitis obliterans.  
18         In the literature searches I did, it's not 
19         linked to bronchiolitis obliterans.  Nor is it 
20         in the structural class of anything that is 
21         linked to bronchiolitis obliterans.
22   Q     Dr. Hochstrasser said it's a possible 
23         etiologic, didn't he?  
24                MR. MACE:         Objection.  
25   A     For respiratory.
0127
 1   Q     For respiratory injury?  
 2                MR. MACE:         Objection.  
 3   A     Yes.
 4   Q     The respiratory injury you were examining at 
 5         the time was two employees who had been 
 6         diagnosed with bronchiolitis obliterans
 isn't 
 7         that true?  
 8                MR. MACE:         Objection.
 9   A     That is only part of what we were 
10         investigating.  We were investigating whole 
11         health hazard identification by any route of 
12         exposure.
13   Q     Nonetheless, the trigger was two cases of 
14         bronchiolitis obliterans
 am I right?  
15                MR. MACE:         Objection.
16   A     No, you are not correct.
17   Q     That is not -- 
18   A     The trigger was people who were having 
19         respiratory issues, not necessarily 
20         bronchiolitis obliterans.
21   Q     Fine.  Call it whatever you want to.  Did you 
22         ever do animal studies to determine whether 
23         diacetyl caused respiratory injury?  
24                MR. MACE:         Objection.  
25   A     No, we conducted literature searches.
0128
 1   Q     Did you obtain the studies referred to in the 
 2         FFIDS
on respiratory injury and diacetyl 
 3         exposure?  
 4                MR. MACE:         Objection.  
 5   A     No, we did not.
 6   Q     Did you ever do your own -- did you ever do a 
 7         risk assessment on that issue, on diacetyl?  
 8                MR. MACE:         Objection.  
 9   A     We did not do a formal risk assessment on 
10         diacetyl.
11   Q     By 1995 at the Tastemakerplant full face 
12         respirators had to be worn when working with 
13         diacetyl; isn't that true?  
14                MR. MACE:         Objection.
15   A     Full face respirators were to be worn when 
16         they were dispensing diacetyl.
17   Q     Well, the requirement within the plant was 
18         that the full face respirators should be worn 
19         if there are any potential harmful vapors; 
20         isn't that true?  
21                MR. MACE:         Objection.  
22   A     I would have to see the document.  
23                (Exhibit Number 29
24                Marked for identification.)
25   Q     Let me show you what is marked as Exhibit 29.  
0129
 1         You see that, full face respirators should be 
 2         worn if there is any potential harmful vapors, 
 3         i.e., diacetyl, acetaldehyde, DMS?  
 4                MR. MACE:         Objection, form, 
 5         foundation, hearsay.  
 6   A     Yes, that is what is written there.
 7   Q     When Dr. Lockey first began analyzing this 
 8         issue, do you remember meeting with him?
 9   A     Yes, I do.
10   Q     Do you remember discussing diacetyl with him?
11   A     I remember discussing an approach to look at 
12         all chemicals.
13   Q     Do you remember telling him this material is 
14         very irritating, the use of a respirator is 
15         required with this material?  
16                MR. MACE:         Objection.
17   A     I don't recall.
18   Q     Were you Dr. Lockey's principal scientific 
19         consultant within the company?
20   A     No, I was not.
21   Q     Who was?
22   A     John Hochstrasser.  
23                (Exhibit Number 30
24                Marked for identification.)
25   Q     Exhibit 30 is Dr. Lockey's notes.
0130
 1                MR. MACE:         Copy, counsel.
 2   Q     On the second page, this is the reference to 
 3         diacetyl.  You see where it says diacetyl, 
 4         this material is very irritating, use 
 5         respirators with this material, do you see 
 6         that note?  
 7                MR. MACE:         Objection.
 8   Q     Under diacetyl, second page?
 9   A     Yes, it's written. It's not attributed to me 
10         saying it.
11   Q     That is not the question.
12                MR. MACE:         Same objection.
13   Q     Do you recall having a discussion with 
14         Dr. Lockey about that subject?  
15                MR. MACE:         Same objection.  
16         Objection, completeness, also guam arabi, 
17         mustard seed oil -- 
18   Q     It doesn't say anything about those in the 
19         paragraph I just read.  I'm asking a 
20         question.  Do you remember this statement 
21         being made? 
22                MR. MACE:         Acetaldehyde, 
23         glutaraldehyde, buteraldehyde, aleraldehyde, 
24         benzaldehyde.
25   A     I don't recall the statement.  Our discussion 
0131
 1         was on an approach for looking at all of the 
 2         chemicals in the plant.
 3   Q     Do you look at -- do you see double production 
 4         in 19 -- in year 1993; do you see that?  
 5                MR. MACE:         Objection.  Same 
 6         objection.  
 7   A     Double production -- I don't know that means 
 8         production.  Double prod in liquids 1993, yes.
 9   Q     Is that consistent, had you doubled the 
10         production of liquid in 1993?
11   A     I can't answer that.
12                MR. MACE:         Completeness, same 
13         sentence, the Middletown plant site closed the 
14         same year.
15   Q     About 15 came down, meaning that the 
16         production from the Middletown plant came over 
17         to the Carthage plant; isn't that right, don't 
18         you recall that happening?
19   A     I recall yes, the Middletown plant came to the 
20         Cincinnati facilities.
21   Q     So, they increased production in the 
22         Cincinnati facilities, right?
23   A     They took on more formulations, yes.
24   Q     Isn't it true what you were looking at, what 
25         you were postulating was this increased 
0132
 1         production, particularly of the liquid 
 2         flavors, had caused this outbreak of 
 3         bronchiolitis obliterans in the Carthage plant 
 4         because the ventilation system was not 
 5         equipped to handle that increased production?
 6   A     No, that is not an accurate statement.
 7   Q     In fact isn't that true?
 8   A     No, I don't think that is an accurate 
 9         statement.
10   Q     We've taken deposition after deposition of 
11         your people that tell us your ventilation at 
12         this plant was inadequate to handle the level 
13         of production you were producing there.  
14                MR. MACE:         Objection. 
15   A     I don't think it's accurate with regard to you 
16         said liquids department.  Most of -- my 
17         recollection is most of the formulations that 
18         came were processed flavors, not liquids.
19   Q     There was an increased use of liquid flavors 
20         in the facility beginning in 1993; isn't that 
21         true?
22   A     That is what is written here.  I don't know.
23   Q     There was no change in the ventilation in '93, 
24         was there?
25   A     I don't know when there were changes in 
0133
 1         ventilation.
 2   Q     Tell me as a matter of common sense, if you 
 3         brought in a large amount of increased 
 4         production of liquid flavors, with no change 
 5         in production, if there were hazards 
 6         associated with those liquid flavors, that 
 7         would have increased the risk to the 
 8         production employees at your plant; isn't that 
 9         true, as an abstract principle?  
10                MR. MACE:         Objection, assumes, 
11         compound, incomplete hypothetical, 
12         mischaracterization, foundation.  
13   A     Not necessarily.
14   Q     But it's possible?  
15                MR. MACE:         Objection, same 
16         objection, move to strike.
17   Q     True?
18   A     One would have to do a risk analysis.
19   Q     You didn't do one.
20                MR. MACE:         Objection.
21   Q     How convenient.  
22                MR. MACE:         Objection.  
23                MR. McCLAIN:      I withdraw the 
24         question.
25   Q     Let's talk about your meeting with FEMA.  What 
0134
 1         was becoming clear by 1996 is that you were 
 2         not going to be able to keep this secret 
 3         forever; isn't that true? 
 4                MR. MACE:         Objection, move to 
 5         strike.  
 6   A     That is not correct. 
 7   Q     You thought you would be able to keep it a 
 8         secret forever? 
 9                MR. MACE:         Objection, move to 
10         strike.  
11   A     Never crossed my mind.
12   Q     That it would come out?
13   A     It never crossed my mind to approach it in the 
14         way you are formulating the question.
15   Q     You went to FEMA, said you've got to keep this 
16         confidential, what do you mean it never 
17         crossed your mind? 
18                MR. MACE:         Objection to form.  
19         Objection, mischaracterization.
20   Q     Of course it crossed your mind.
21                MR. MACE:         Objection, 
22         mischaracterization.  
23   A     Went to FEMA, asked it to be confidential in 
24         order to protect our trade secrets.
25   Q     That is not what your other witnesses have 
0135
 1         said.
 2                MR. MACE:         Objection.
 3   Q     You went and asked for confidentiality because 
 4         you didn't want anyone to use this against you 
 5         because your competitors would use it against 
 6         you to take sales from your company.  That was 
 7         truly the reason, wasn't it?  
 8                MR. MACE:         Objection, 
 9         characterization. 
10   A     It was not my reason.
11   Q     What trade secret was there to protect that 
12         you were giving bronchiolitis obliterans to 
13         your employees?  How was that a trade secret?  
14                MR. MACE:         Objection, move to 
15         strike.  
16   A     I'm not saying we gave bronchiolitis 
17         obliterans to our people.
18   Q     Who did it then?  
19                MR. MACE:         Objection.  
20   Q     Somebody sneak in your plant at night?  
21                MR. MACE:         Objection.
22   A     I'm not going to answer that.
23   Q     I know you don't admit to anything.  I know 
24         you deny everything.  That has never been an 
25         effective strategy.  I understand that that is 
0136
 1         your strategy.
 2                Let's ask the question without any 
 3         qualifiers.  What trade secrets were there to 
 4         protect in identifying for FEMA that workers 
 5         in your plant had a deadly lung disease?  
 6                MR. MACE:         Objection, 
 7         argumentative.  Objection, the preamble move 
 8         to strike.  Objection, mischaracterization.  
 9   A     The purpose to go to FEMA was to find out if 
10         there was any other cases of respiratory 
11         illnesses.
12   Q     Well, actually the reason that you went to 
13         FEMA was to try to get FEMA to find other 
14         cases so when this came out, they could not 
15         use it against Tastemaker?  
16                MR. MACE:         Objection.
17   Q     That is truly the reason?
18   A     That is absolutely false.
19   Q     It is true, isn't it, that Dr. Lockey 
20         suggested to FEMA they do an industry-wide 
21         study?  
22                MR. MACE:         Objection.
23   A     That's not true.  Dr. Lockey felt that they 
24         should go survey the other flavor companies to 
25         see if they've had a similar situation.
0137
 1   Q     FEMA never did that?  
 2   A     Yes, they did.  
 3   Q     When did they do that?
 4   A     They made phone calls, they investigated.
 5   Q     Is that a survey?
 6   A     Yes.
 7   Q     Is that an epidemiologic survey to make a few 
 8         phone calls?  
 9                MR. MACE:         Objection.  
10   A     Dr. Lockey did not request that we do an 
11         epidemiological survey.  Dr. Lockey felt we 
12         should survey the industry to find out if 
13         anyone else is having similar issues.
14   Q     In fact FEMA has found out that other 
15         companies have had similar issues; isn't that 
16         true?  
17                MR. MACE:         Objection.
18   A     I don't know that.
19   Q     What do you mean you don't know that.  You're 
20         on the board of governors, aren't you? 
21                MR. MACE:         Objection.  
22   A     I'm not on the board of governors.
23   Q     You were in 2004?
24   A     I was for eight months.  The subject of other 
25         people's proprietary information did not come 
0138
 1         up.
 2   Q     It is not a question of proprietary 
 3         information.  Look at the 2004 report we gave 
 4         you from FEMA.  What number did we mark this 
 5         one?  The flavor industry respiratory safety 
 6         program 8.  
 7                MR. WOODSIDE:     What exhibit?
 8                MR. CRICK:        6.
 9   Q     Dr. Lockey -- first of all let's get our 
10         timing straight.  Dr. Lockey suggested FEMA do 
11         this in 1996, correct?  
12                MR. MACE:         Objection, ambiguous, 
13         characterization, assumption.
14   Q     Isn't that when that suggestion was made?
15   A     Dr. Lockey in 1996 suggested that FEMA contact 
16         other flavor companies.
17   Q     Here is what FEMA says they did.  As part of 
18         its ongoing respiratory safety program FEMA 
19         initiated a confidential incident reporting 
20         program in 2002; do you see that?  
21                MR. MACE:         Objection, form, 
22         foundation, hearsay.
23   A     That is what is written there, yes.
24   Q     Provides flavor manufacturers with the 
25         opportunity to report respiratory safety 
0139
 1         concerns to FEMA in a confidential manner and 
 2         to obtain assistance if needed to maintain a 
 3         safe workplace; do you see that?
 4   A     Yes, it's written there.
 5   Q     2002 is six years after 1996s, isn't it?
 6   A     Yes, but they did contact people in 1996.
 7   Q     Somehow or another they missed these other 
 8         reports that other companies had back in 1996, 
 9         didn't they?  
10                MR. MACE:         Objection.  
11                MR. WOODSIDE:     Objection, foundation 
12         form.
13   A     I can't comment on that.
14   Q     Company one, the available information 
15         suggests that one employee had severe fixed 
16         airway obstruction; do you see that?  
17                MR. MACE:         Objection, form, 
18         foundation, hearsay.  
19   A     That is what is written.
20   Q     Which is similar to the disease seen in some 
21         microwave popcorn workers; do you see that?  
22                MR. MACE:         Objection, form, 
23         foundation, hearsay, best evidence rule. 
24   A     That is what is written.
25   Q     Do you see that the flavor that the employee 
0140
 1         was working with was -- had lactones, acetic 
 2         and lactic acids and low concentrations of 
 3         diacetyl?  
 4                MR. MACE:         Objection.  So states 
 5         here irritating to their eyes and nasal 
 6         passages.
 7   Q     That helps you.  Go ahead.
 8   A     That is what that sentence says.
 9   Q     At company two one employee was identified as 
10         having signs of exposure related constrictive 
11         bronchiolitis after lung biopsy; do you see 
12         that?  
13                MR. MACE:         Same objection.  
14   A     That is what is written.
15   Q     Company 3 -- 
16                MR. MACE:         Rule of completeness, 
17         biopsy also showed several signs inconsistent 
18         with exposure related bronchiolitis. 
19   Q     At company 3 one employee's physician 
20         concluded that the employee had bronchiolitis 
21         obliterans based on a lung biopsy that 
22         according to the physician showed changes 
23         consistent with the disease; do you see that?  
24                MR. MACE:         Same objection, move 
25         to strike.
0141
 1   A     That is what is written.  Although they did 
 2         comment his symptoms were not work related.
 3   Q     No, they said that about a different 
 4         employee.  A second employee.  You see, you 
 5         have to read carefully.
 6                MR. MACE:         Objection, move to 
 7         strike.
 8   Q     See they are talking about a different 
 9         employee there.
10                You don't know what happened in 1996 in 
11         terms of FEMA's "telephone survey" right?  
12                MR. MACE:         Objection.  
13   A     Yes, I do.  They contacted flavor companies.
14   Q     After they instituted the same confidential 
15         procedure that you were allowed, other 
16         companies came forward in 2002 and said yeah, 
17         we've got cases, true?  
18                MR. MACE:         Objection, 
19         mischaracterizes, compound, form, foundation, 
20         assumes.
21   A     According to this there were other companies 
22         in 2002.  Perhaps there were none in 1996.
23   Q     You don't know because you were trying to keep 
24         it a big secret?  
25                MR. MACE:         Objection, move to 
0142
 1         strike.
 2   Q     You never called up IFF, right?  
 3                MR. MACE:         Objection.  
 4   A     No.
 5   Q     Didn't call up BBA, right?  
 6                MR. MACE:         Objection.
 7   A     No.
 8   Q     Didn't call around to any of your customers 
 9         either, did you?
10   A     No.  I went through the trade association 
11         which is our normal way to approach situations 
12         like this.
13   Q     This was not a normal situation, was it?
14   A     Not normal but a situation similar to this we 
15         go through the association.
16   Q     Did you have other outbreaks of lung disease?
17   A     No.
18   Q     There is something else about Dr. Lockey's 
19         note which is exhibit -- yes.  On the first 
20         page, under the board of governors, this is 
21         where he was being briefed about FEMA.  It 
22         says the board of governors, these people can 
23         commit monies for projects; do you see that?
24   A     No, I don't.
25                MR. WOODSIDE:     Can you point out 
0143
 1         where you are talking?  Exhibit 30?  
 2                MR. McCLAIN:      Did you mark this or 
 3         not?
 4                
 5                MR. MACE:         I don't believe you 
 6         did.
 7                MR. CRICK:        Mark it.  
 8                MR. McCLAIN:      If I can find the 
 9         other copies of it, I will.  
10                (Exhibit Number 31
11                Marked for identification.)
12                MR. McCLAIN:  Exhibit 31, is that what 
13         we are on?  
14                MR. MACE:         I believe so.  
15                MR. CRICK:        Yes.
16   Q     This is another set of Dr. Lockey's notes.  Do 
17         you see under board of governors?  
18                MR. MACE:         Object to form, 
19         foundation, hearsay.  Continuing objection.
20   Q     Board of governors, these people can commit 
21         money for projects; do you see that?
22                MR. WOODSIDE:     Join whatever 
23         objection Mr. Mace made, hearsay.
24   A     I see that written.
25   Q     Was that in fact true?  Did the board of 
0144
 1         governors have the ability to commit money for 
 2         projects that affected the industry?
 3   A     Ultimately, yes.
 4   Q     Back in this time period in 1996?
 5   A     Yes, if there was a need to conduct a project, 
 6         yes.
 7   Q     Look over at the last page of Dr. Lockey's 
 8         notes.  Conclusion, this is not unique to 
 9         Tastemaker; do you see that?  
10                MR. MACE:         Same objections, move 
11         to strike.  
12   A     Appears to be what is written here.
13   Q     Did FEMA commission any animal studies or any 
14         risk assessments regarding diacetyl?  
15                MR. MACE:         Objection, assumes.  
16         Objection, compound.  Objection to form, 
17         foundation, mischaracterization.
18   A     No, and Dr. Lockey did not recommend any.
19   Q     I didn't ask you anything about that.  I asked 
20         did they do it.
21                MR. MACE:         Same objection, move 
22         to strike.
23   A     No, and Dr. Lockey did not recommend any.
24                MR. McCLAIN:      I move to strike your 
25         answer.
0145
 1   Q     Would you answer the question as I phrased it, 
 2         did FEMA do it?  
 3                MR. MACE:         Objection, vague and 
 4         ambiguous.  Objection, same objections, move 
 5         to strike.
 6   A     No.
 7   Q     Did they do it on acetaldehyde?  
 8                MR. MACE:         Objection.  
 9   A     No, no experts suggested that had we should do 
10         it.
11   Q     Do you just not listen to my questions, 
12         Dr. Higley?  I didn't ask you anything about 
13         that.  If you answer my question, Mr. Mace 
14         says he's going to ask you questions.  He'll 
15         get his chance. If you will be fair and answer 
16         my questions, that would be appreciated.
17                MR. MACE:         Objection, move to 
18         strike.
19   Q     Did FEMA do any tests, animal studies, or risk 
20         assessments on acetaldehyde?  
21                MR. MACE:         Objection, compound.  
22         Objection, foundation, form.  
23   A     FEMA would have done risk assessments on 
24         acetaldehyde for the purposes of grass.
25   Q     Were there any inhalation studies in that 
0146
 1         group?
 2   A     I can't recall if there would be in the 
 3         scientific literature review.
 4   Q     There may be some for acetaldehyde?
 5   A     Right.
 6   Q     There aren't any for diacetyl?
 7   A     I can't speculate.  I would have to see the 
 8         report.
 9   Q     As you point out, in the acetaldehyde studies 
10         there were no reports of respiratory problems 
11         from acetaldehyde, were there?  
12                MR. MACE:         Objection.  
13   A     Not that were correlated with bronchiolitis 
14         obliterans.
15   Q     Or with other respiratory diseases?
16   A     There were other respiratory studies on 
17         acetaldehyde.
18   Q     What did they show?
19   A     Without them in front of me, I can't comment.
20   Q     Did you have them at the time?
21   A     Yes.
22   Q     Where are they?
23   A     I expect they are with Givaudan or at the FEMA 
24         office.
25   Q     Did you know they didn't produce them to us?  
0147
 1                MR. MACE:         Mischaracterization, 
 2         they have been produced. 
 3                MR. McCLAIN:      They have been?  What 
 4         are they?  Tell me, because we don't recognize 
 5         the description of them, what are they?  
 6                MR. MACE:         I didn't memorize 
 7         them?  
 8                MR. McCLAIN:      Do they exist?  
 9         You've seen them, you are representing that 
10         you've seen them, because I haven't seen 
11         them.  
12                MR. MACE:         Acetaldehyde has been 
13         produced, yes.
14                MR. McCLAIN:      The studies that 
15         Dr. Higley reviewed on acetaldehyde at the 
16         time, were they produced to us? 
17                MR. MACE:         We sent them. 
18                MR. McCLAIN:      Can you go back and 
19         confirm and identify those for us 
20         specifically?  Because if I would have been 
21         aware of that I would have asked her about 
22         that.  I'm not aware of them.  I would like to 
23         see them.  Can you do that for me?  
24                MR. MACE:         Probably confirm in a 
25         letter or something.  
0148
 1                MR. McCLAIN:      That would be fine.  
 2         That is satisfactory.  I'm not trying to be 
 3         cute, I'm asking.
 4   Q     Let's go back.  Now, do you recall when you 
 5         went to Dr. Lockey, or went with Dr. Lockey to 
 6         FEMA that Karen Duros drafted a talking points 
 7         memo for him?
 8   A     Yes.
 9   Q     Mark this Exhibit 32.  
10                (Exhibit Number 32
11                Marked for identification.)
12   Q     Do you see that she told Dr. Lockey to talk 
13         about the definitions of occupational disease 
14         and process factors relied upon to conclude 
15         that it was an occupational disease?
16   A     To conclude that an occupational disease 
17         exists, yes.
18   Q     Do you see down here, his conclusion with 
19         reasonable degree of medical certainty that 
20         the disease is work-related; do you see that?  
21                MR. MACE:         Objection, best 
22         evidence rule, hearsay.
23   Q     She told him to talk about that?  
24                MR. MACE:         Objection, hearsay, 
25         foundation, assumes.
0149
 1   A     That is what is written, yes.
 2   Q     Based on his understanding of information from 
 3         the company Dr. Lockey believes that the 
 4         workplace exposure is probably not unique to 
 5         Tastemaker; do you see that?
 6   A     Yes, that is what is written.
 7   Q     You were to support with knowledge of 
 8         chemicals used, products manufactured and  
 9         processes utilized?
10   A     That is correct.
11   Q     Were you trying to get FEMA to conclude that 
12         this was an industry-wide problem, in order to 
13         take the pressure off yourself, for the 
14         disease being caused in your plant?  
15                MR. MACE:         Objection, 
16         mischaracterization.  Object to form, 
17         compound, characterization.  
18   Q     True?
19   A     It's false.  The objective was request FEMA to 
20         take steps to investigate whether 
21         bronchiolitis obliterans in a flavor industry 
22         issues -- is a flavor industry issue.  That 
23         was our whole purpose for going, to ask them 
24         to call up other flavor companies, to says are 
25         you having similar respiratory situations.
0150
 1   Q     But, here is the point.  You didn't want 
 2         anyone to know that you had the problem?
 3   A     Correct.
 4   Q     You didn't want them to know precisely how 
 5         many people actually were involved?  
 6                MR. MACE:         Objection.  
 7   A     I don't think that is a fair characterization.
 8   Q     Is there any FEMA document that you have seen 
 9         that identifies nine employees -- 
10                MR. MACE:         Objection, 
11         mischaracterization.
12   Q     -- from your company as potentially having 
13         bronchiolitis obliterans?  
14                MR. MACE:         Objection, form, 
15         assumes, foundation, mischaracterization, 
16         misstates the evidence.  
17   A     I don't think there is a document.  I don't 
18         think the number is nine.
19   Q     You know that FEMA thinks the number is five.
20                MR. MACE:         Objection.
21   A     I don't know that.
22   Q     That is what they publish; isn't that true?
23   A     I would have to look again.
24   Q     You don't recall that was in the document?  We 
25         went over it several times.  I'm happy to go 
0151
 1         over it again.  
 2   A     I recall company one, two, three, I don't 
 3         recall the numbers.
 4   Q     Look back at the 2002 report, see how many 
 5         they claim Dr. Lockey reported.  One initial 
 6         case then four additional cases.
 7                MR. MACE:         Consistent with.
 8   Q     2261 page, I believe.  You are looking at the 
 9         2004 report, not the 2002 report.  
10   A     Excuse me.
11   Q     The same information is in both.  You can use 
12         the one you were on.  2261 we looked at 
13         before.
14                MR. MACE:         You mean 1261?
15                MR. McCLAIN:      Is that what it was?  
16         You are right.
17   Q     You see at that symposium a physician reported 
18         five workers of a flavor manufacturing 
19         facility, bottom of the page, five?  
20                MR. MACE:         Referring to what 
21         Lockey said?
22                MR. McCLAIN:      Right.
23   A     Reported an index case four additional workers 
24         with clinical findings consistent with 
25         bronchiolitis obliterans.
0152
 1   Q     That is five?
 2   A     Consistent with.
 3   Q     We're talking about numbers here, that is 
 4         five, isn't it?
 5   A     Yes. 
 6   Q     Have you ever seen a FEMA document which says 
 7         that you had eight, maybe nine cases?  
 8                MR. MACE:         Objection, assumes, 
 9         foundation, compound.  
10   A     No.
11   Q     In 2002 NIOSH had meetings on this entire 
12         issue, bronchiolitis obliterans in the 
13         flavoring and popcorn industry; isn't that 
14         right?  
15                MR. MACE:         Objection, 
16         characterization.  You can answer.  
17   A     I believe so.
18   Q     You received a fax from Eric Barns regarding 
19         the meeting, you remember that?
20   A     No, I don't.
21   Q     Do you remember John Hallagan was in a meeting 
22         with NIOSH?
23   A     Yes.
24   Q     Do you remember that NIOSH as of 2002 was 
25         still unaware that Givaudan was the company 
0153
 1         that Dr. Lockey had studied?  
 2                MR. MACE:         Objection, 
 3         foundation, assumes.  
 4   A     I can't conclude that.
 5   Q     You can't conclude that or you can't remember 
 6         that?
 7   A     I can't remember that.  
 8                (Exhibit Number 33
 9                Marked for identification.)
10   Q     Do you see this note here in this document, 
11         Dr. Higley, where it says they don't know 
12         we're company X?
13   A     I see that set of documents is incomplete.
14   Q     What is it?
15   A     There is a missing attachment from the NIOSH 
16         correspondence which frames up this fax.  
17         NIOSH was requesting us to disclose two 
18         formulations.  That is what Eric was 
19         forwarding to me.  There is a piece missing.
20   Q     But is this your notes?
21   A     Yes.
22   Q     Company X referred to the company that had an 
23         outbreak of bronchiolitis obliterans in their 
24         plant; is that correct?
25   A     Company X refers to Tastemaker.
0154
 1   Q     Company X within the documents that NIOSH had 
 2         were the disclosure from FEMA that a member 
 3         company had had an outbreak of bronchiolitis 
 4         obliterans; am I right?
 5   A     I don't know what documents FEMA supplied to 
 6         NIOSH.
 7   Q     You know that is what the issue is, am I 
 8         right?  FEMA was notifying NIOSH that there 
 9         had been an outbreak of bronchiolitis 
10         obliterans in a member company, they identify 
11         the company as company X?
12   A     No, I can't conclude that.  This is referring 
13         to me asking John if as an industry I can 
14         submit my formulations to NIOSH through FEMA.
15   Q     Why is the designation company X used?
16   A     In my discussions with John on 2-28, that is 
17         what came up.  John indicated to me that they 
18         don't know we are company X.  I don't know how 
19         we were described as company X, by whom.  John 
20         said they don't know we are company X.
21   Q     You don't know that Mr. Hallagan identified 
22         for NIOSH that company X had had at least one 
23         case of bronchiolitis obliterans that was 
24         reported to FEMA before that time; you are not 
25         aware of that?
0155
 1   A     I don't know if it was John or perhaps 
 2         Dr. Lockey, I don't know who.
 3   Q     You are aware that someone reported that an 
 4         unidentified company, company X in the 
 5         flavoring industry had had a case of 
 6         bronchiolitis obliterans; am I right?
 7   A     I'm aware that someone had discussions with 
 8         NIOSH.  I don't know what they said to them.
 9   Q     You know in fact that Dr. Lockey's abstract 
10         was reported in the NIOSH report?
11   A     That's correct.
12   Q     So, they knew that some flavoring company had 
13         had an outbreak of bronchiolitis obliterans; 
14         am I right?
15   A     They knew some company was investigating 
16         respiratory.
17   Q     As of 2002 you had not come forward to NIOSH 
18         and said hey, we're that company, had you?  
19                MR. MACE:         Objection.  
20   A     No.  
21                MR. McCLAIN:      Let's take a break.
22                VIDEOGRAPHER:      Off the record at 
23         2:58.  
24                (Recess taken.)
25                VIDEOGRAPHER:     We're back on the 
0156
 1         record at 3:16.
 2   Q     Dr. Higley, it's fair to say, is it not, that 
 3         no one from Tastemaker or Givaudan to your 
 4         knowledge ever contacted anyone at the Marion, 
 5         Ohio plant, informed them about your 
 6         experience with bronchiolitis obliterans?  
 7                MR. MACE:         Objection, 
 8         foundation.
 9   A     That would be correct.
10   Q     That would be including ConAgra as a company 
11         was not contacted outside of the Marion, Ohio 
12         plant, were they?
13   A     I would not know that definitively.
14   Q     You think someone did contact ConAgra and tell 
15         them about your bronchiolitis obliterans 
16         problem?
17   A     I don't know.
18   Q     Do you know of anyone that did?
19   A     No, I don't know of anyone that did.
20   Q     For heaven sake you didn't even tell the other 
21         members of FEMA?  
22                MR. MACE:         Objection.
23   Q     Right?  
24                MR. MACE:         Objection, move to 
25         strike.  
0157
 1   A     That's correct.  
 2   Q     Were you responsible for creating the material 
 3         safety data sheets, is that part of your 
 4         function?
 5   A     Yes, I was responsible for doing hazard 
 6         identification for them, yes.
 7   Q     Do you recall that back in 1994 the butter 
 8         flavors were rated at 3 in terms of hazard 
 9         ratings?  
10                MR. MACE:         Objection, over 
11         broad.  Objection, assumes.  Objection to 
12         form.
13   A     I'm sorry, could you repeat.
14   Q     Were you responsible for the MSDSs or weren't 
15         you?
16   A     I was responsible for the hazards on the 
17         MSDSs.
18   Q     Were you also responsible for the hazard 
19         ratings?
20   A     The program would roll up the hazard ratings, 
21         depending on the hazard statements. 
22   Q     Are you aware that in 1994 the butter flavor 
23         contained a hazard rating of 3?  
24                MR. MACE:         Objection to form.
25                MR. WOODSIDE:     Object.  Here is my 
0158
 1         objection.  I don't know what you are talking 
 2         about.  Butter flavor in general or are you 
 3         talking about butter flavor from Givaudan?  
 4   Q     Let's look at an exhibit.  
 5                (Exhibit Number 34
 6                Marked for identification.) 
 7   Q     Here is Exhibit 34.  This is the natural and 
 8         artificial butter flavor type 258884.
 9                MR. CRICK:        Dated February 3rd of 
10         '94.  
11                MR. McCLAIN:      Thank you.
12   Q     Do you see that this contains a hazard rating 
13         of 3?
14   A     This particular MSDS, yes.
15   Q     Do you know why it contains a hazard rating of 
16         3?
17   A     Yes.
18   Q     Why?
19   A     Butyric acid.
20   Q     Huh?
21   A     Butyric acid.
22   Q     Butyric acid, what are the health effects of 
23         butyric acid?
24   A     Corrosive to skin and eyes, inhalation is 
25         irritating to nose, throat and lungs.
0159
 1   Q     Did butyric acid remain a component of the 
 2         butter flavor in the year 2000?  
 3                MR. MACE:         This butter flavor?  
 4   Q     Yes.  
 5   A     I don't know without looking at formulation 
 6         history.
 7   Q     Let's look at Exhibit 35.  
 8                (Exhibit Number 35
 9                Marked for identification.)
10   Q     This butter type natural and artificial butter 
11         flavor carries a health hazard rating of 2, 
12         does it not?
13   A     Yes.
14   Q     Do you know why the butter flavor sold to 
15         ConAgra got safer between 1994 and 2000?  
16                MR. MACE:         Objection form, 
17         characterization, assumes.  
18   A     Without looking to see if there was a formula 
19         revision, no, I cannot.
20   Q     Let me be clear.  There is nothing on either 
21         of these about bronchiolitis obliterans; am I 
22         right?
23   A     That's correct.
24   Q     There is no identification within this 
25         document of potential irreversible lung injury 
0160
 1         either, is there?  
 2                MR. MACE:         Objection, assumes.  
 3   A     That's correct.
 4   Q     By the way, how were these prepared, were they 
 5         prepared -- tell me how they were prepared.  
 6   A     The hazard statements, each individual 
 7         ingredient is given a series of hazard 
 8         statements, using the FFIDS sheets.  Each 
 9         statement is given a ranking of health.  So 
10         that when the -- whether you do it manually or 
11         otherwise, anything in the formula greater 
12         than 1 percent, with the exception of 
13         carcinogens, which is .1 percent, anything 
14         greater than 1 percent is represented by its 
15         hazards as if it were a whole.  There is a 
16         hierarchy to say for example you have a 
17         statement that is corrosive, that would 
18         supercede a statement of may be irritating to 
19         skin and eyes because one is more severe than 
20         another.  It would roll up to be the most 
21         severe statements, and the more severe health 
22         rating that would come from those statements.
23   Q     We saw in the FFIDS that diacetyl can cause 
24         systemic toxicity, you recall that?  
25                MR. MACE:         Objection.
0161
 1   A     I recall that is one of the literature 
 2         references they refer to.  That is in the body 
 3         of the evidence, not in the conclusion of that 
 4         FFIDS sheet.
 5   Q     Is that statement at all contained within the 
 6         material safety data sheets we're looking at?
 7   A     No, it would be inappropriate.
 8   Q     Is also there no reference to this being 
 9         harmful?  
10                MR. MACE:         Objection.
11   A     That is correct.
12   Q     By inhalation?
13   A     That's correct.
14   Q     There is more than 1 percent diacetyl in this 
15         material, is there not?
16   A     Yes.
17   Q     So there is no reference to being harmful by 
18         inhalation, as well as no reference to 
19         systemic toxicity, right?
20   A     Irritation is a systemic effect.
21   Q     But not a systemic toxicity, irritation is not 
22         a systemic toxicity?  
23                MR. MACE:         Objection.  
24   A     You're confusing your terms.  Systemic and 
25         toxicity are two different terms.
0162
 1   Q     Why don't you look back at the FFIDS and see 
 2         if it doesn't say can cause systemic toxicity.
 3   A     Should probably say systemic effects.
 4   Q     It's exhibit -- 
 5                MR. CRICK:        26.
 6   Q     Capable of producing systemic toxicity is the 
 7         statement.  You can look at mine.  
 8   A     That's fine, I have it here.
 9   Q     Human health effects data, capable of 
10         producing systemic toxicity, do you see that?
11   A     Yes, but I don't know what kind of systemic 
12         toxicity.
13   Q     No, apparently not.
14   A     Doesn't say.  Doesn't specify here.
15   Q     You didn't specify either, or even alert the 
16         customer that that was a possibility?  
17                MR. MACE:         Objection, assumes, 
18         foundation.  
19   A     There was no need to.
20   Q     You say that.  We have a group of people with 
21         bronchiolitis obliterans that would disagree 
22         with you.  
23                MR. MACE:         Objection, assumes.  
24         Objection, characterization.  Move to strike.  
25   Q     The real question is, that is not included on 
0163
 1         any MSDS sheet, is it?  
 2                MR. MACE:         Objection.  
 3   A     It's not included on these two MSDS sheets 
 4         we're looking at.
 5   Q     Likewise since we're looking at this document, 
 6         in regard to the MSDS sheets, animal acute 
 7         toxicity data, you don't list anything for the 
 8         oral data, even though there is oral data 
 9         available for diacetyl, correct?  
10                MR. MACE:         Objection.  
11   A     There is not oral data available for this 
12         mixture.  It's not tested as a whole.
13   Q     It's greater than 3 percent of the whole, 
14         there was data available for that ingredient, 
15         correct?
16                MR. MACE:         Objection.
17   A     This is referring to whether or not there was 
18         animal acute toxicity on the finished flavor 
19         formulation.
20   Q     You don't say that at all.  
21                MR. MACE:         Objection.
22   Q     You say this material contains no ingredients 
23         present at .1 -- .4 or greater, which is 
24         listed as a carcinogen or potential carcinogen 
25         by IARC, NTP or OSHA, do you?
0164
 1   A     That's correct.
 2   Q     There was oral data available, inhalation data 
 3         available on diacetyl, wasn't there?  
 4                MR. MACE:         Objection.
 5   A     There is LD50 data on oral.
 6   Q     Which document, on the 2000?
 7   A     No, on diacetyl there is oral LD 50 data but 
 8         that is not what goes in here.  What goes in 
 9         here is if there is oral LD50 for the mixture 
10         of the flavoring.
11   Q     Since you didn't test the mixture -- 
12   A     So it says not determined.
13   Q     You don't list the ingredient data, or even 
14         inform the customer that the ingredient data 
15         exists, do you?
16   A     There is no need to.
17   Q     You keep saying that.  I'm asking you did you 
18         include it?
19   A     No.
20   Q     Look back in Exhibit 23.  It says whenever 
21         liquid diacetyl, or a product where liquid 
22         diacetyl is present is to be used, a 
23         respirator with chemical resistant gloves must 
24         be worn; do you see that?
25   A     Yes, it's written there.
0165
 1   Q     Is there any such information given on the 
 2         material safety data sheets that were provided 
 3         ConAgra?  
 4                MR. MACE:         Objection, assumes.  
 5         Objection, foundation.  Objection, form.  
 6   A     No.
 7   Q     It says any room containing diacetyl in a 
 8         liquid state must be labeled respirator 
 9         required; do you see that?
10   A     Yes, that is what is written there.
11   Q     Is that information anywhere on the material 
12         safety data sheets?  
13                MR. MACE:         Objection.
14   A     No, this is not an MSDS for diacetyl.
15   Q     That is entirely correct.  The user of the 
16         butter flavor doesn't even know diacetyl is in 
17         it, do they?  
18                MR. MACE:         Objection.
19                MR. WOODSIDE:     Objection, 
20         foundation.
21                MR. MACE:         Assumption, 
22         characterization and form.  
23   A     I don't know if they know it's in there or 
24         not.
25   Q     You certainly don't tell them.
0166
 1                MR. MACE:         Objection.
 2   Q     Am I right?
 3   A     On this document it doesn't appear.  It might 
 4         have appeared elsewhere.
 5   Q     Tell me where?
 6   A     Confidential disclosures.
 7   Q     Did you make any such to ConAgra?
 8   A     I would have to -- I don't know.
 9   Q     Everything was confidential with you, wasn't 
10         it, Miss Higley?  
11                MR. MACE:         Objection.
12   Q     Whenever material is in any tank the lid must 
13         be closed, is that information anywhere on the 
14         material safety data sheet?  
15                MR. MACE:         Objection, assumes.  
16         Objection to form.
17   A     No, it's not on the MSDS.
18   Q     If ventilation mechanical is not connected to 
19         the tank or is unavailable, a respirator must 
20         be worn at all times while in the room, is 
21         that anywhere on the material safety data 
22         sheet?
23   A     No, but I believe previously when we discussed 
24         this document I didn't understand, wasn't 
25         privy to this 7.
0167
 1   Q     Following the publication of the NIOSH report, 
 2         you came up with worker protection solutions 
 3         for flavors for microwave popcorn; isn't that 
 4         true?
 5                MR. MACE:         Objection.
 6   Q     You prepared the document?  
 7                (Exhibit Number 36
 8                Marked for identification.)
 9   Q     Exhibit 36.  Do you recall that?
10   A     No.
11   Q     Did you author this?
12   A     Yes.
13   Q     It says data suggests an increased prevalence 
14         of respiratory and dermal symptoms in workers 
15         in the microwave popcorn production areas, 
16         specifically the mixing room; do you see that?
17   A     Yes, that is what is written there.
18   Q     That is what you wrote.  It says the 
19         respiratory symptoms of the case studies in 
20         the microwave popcorn plants indicate an 
21         effect on the small airways, the bronchials.  
22         This suggests that the causative agents are 
23         transported deep into the lung.  The case 
24         studies demonstrate that heated soybean oil, 
25         salt and flavoring poured from open buckets 
0168
 1         into mixing tanks can carry the causative 
 2         agents deep into the lungs; do you see that?  
 3                MR. MACE:         Objection.
 4   A     That is what is written, yes.
 5   Q     Flavor exposure control opportunities, the 
 6         first thing you list is use of closed 
 7         processes; you see that, one?
 8   A     Yes.
 9   Q     Substitution, two?
10   A     Yes.
11   Q     Minimize temperature needed to dispense the 
12         flavor?
13   A     Yes.
14   Q     Use of negative pressure to control the 
15         volatility?
16   A     Correct.
17   Q     You see all that?
18   A     Um-hum.
19   Q     Then use diacetyl as a benchmark to validate 
20         exposure control opportunities, do you see 
21         that?
22   A     Correct.
23   Q     None of this information ever made it onto a 
24         material safety data sheet, did it, that went 
25         to ConAgra?
0169
 1   A     No.
 2   Q     Mr. Davis, Mike Davis, I deposed him a couple 
 3         weeks ago, and he said you had no obligation 
 4         to warn your customers.  Do you believe that 
 5         too?  
 6                MR. MACE:         Objection, 
 7         characterization, assumption, form.  Move to 
 8         strike.  
 9   A     I can't say what Mike Davis said.  Our 
10         obligation is to warn but I don't recall 
11         diacetyl has been proven to be the causative 
12         agent of bronchiolitis obliterans.  I don't 
13         believe the data supports that.
14   Q     Why didn't you give ConAgra this set of 
15         instructions you came up with about how to 
16         minimize exposures to workers, are you just 
17         that callous?  
18                MR. MACE:         Objection.  Move to 
19         strike.  
20   A     That is not a fair assumption.
21   Q     Why not?  Why isn't it a fair assumption -- 
22                MR. MACE:         Objection, 
23         argumentative -- 
24                MR. McCLAIN:      Let me finish my 
25         statement and I'll let her say whatever she 
0170
 1         wants.
 2                MR. MACE:         Objection, move to 
 3         strike. 
 4   Q     Why is it true that if you knew workers in 
 5         your plant could be, I'll give you the benefit 
 6         of doubt, could be the victims of 
 7         bronchiolitis obliterans from flavors, why you 
 8         didn't feel like it was at least appropriate 
 9         to warn somebody so they could take 
10         precautions to prevent the possibility of 
11         getting that same disease?  
12                MR. MACE:         Objection, move to 
13         strike.  Objection, argumentative, form, 
14         foundation, assumptions.  
15   A     I think you are mixing up worker exposure from 
16         the meat material from worker exposure from 
17         the flavor ingredient.  Our focus with this 
18         information was using 100 percent material.  
19         Does not translate to the finished flavor.
20   Q     That is false.  That document was drafted for 
21         microwave popcorn workers.  That pat answer 
22         you just gave me that you practiced with 
23         Mr. Mace for two days is false.  This document 
24         was about microwave popcorn workers.  
25                MR. MACE:         Objection, move to 
0171
 1         strike.
 2   Q     Why didn't you give that to ConAgra or any of 
 3         your other customers other than you just 
 4         didn't care what happened to their employees? 
 5                MR. MACE:         Objection, compound. 
 6         Objection, form.  Objection, argumentative.  
 7         Objection to counsel's comments, move to 
 8         strike.
 9   A     It's absolutely not true that those were my 
10         intentions.
11   Q     Your statement was false, you agree with 
12         that?  
13                MR. MACE:         Objection.
14   Q     This document is addressed to microwave 
15         popcorn workers, not to the workers in your 
16         plant.  Your answer to me was absolutely a 
17         false reason not to give this to the microwave 
18         popcorn workers.
19                MR. MACE:         Objection, move to 
20         strike.  Objection, to characterization.
21   Q     Tell the jury that, that you just told them 
22         something that was false.  
23   A     No, it is not false.  My intent on this was 
24         not as written -- my intent was not for 
25         microwave popcorn plant.  It was taking the 
0172
 1         information and trying to direct our people as 
 2         to how when they are handling the meat 
 3         material they could minimize their exposure.
 4   Q     Would you read the title of the document?
 5   A     Worker protection solutions for flavors for 
 6         microwave popcorn.   
 7                MR. McCLAIN:      Thank you.  No 
 8         further questions.  Take a break.
 9                VIDEOGRAPHER:      Off the record at 
10         3:39.
11                (Recess taken.)
12                VIDEOGRAPHER:      Back on the record 
13         at 3:44.
14   Q     As a former employee of IFF, don't you think 
15         this is all IFF's fault?
16                MR. WOODSIDE:     Object.
17   Q     Tell me, don't you think it's all their 
18         fault?  
19                MR. MACE:         Objection, move to 
20         strike.
21   Q     You don't have to answer.
22                Here is the question that will be 
23         easy.  Tell me the process by which the MSDS 
24         sheets were prepared physically, how would 
25         they be generated and would you or some other 
0173
 1         person with a toxicology background review 
 2         them before they went out to the customer?
 3   A     The way our program works, all raw materials 
 4         are reviewed by myself, given the hazard 
 5         statements, with that the associated codes.  
 6         The system would do the math, in terms of the 
 7         cut off levels for -- this in the later 
 8         years.  In earlier years we physically had the 
 9         formulation in front of us, we would draw a 
10         line at 1 percent or higher or .1 percent or 
11         higher for carcinogens.  Take the hazards and 
12         their codes, apply the logic to what 
13         supercedes what statement by route of 
14         exposure.
15                Once those statements are generated, 
16         then the rest of the information could come 
17         from you've got the physical chemical 
18         characteristics, whether or not it is a powder 
19         or not.  Those kind of statements.  Then those 
20         would be generated automatically.
21   Q     Generated automatically what, by computer?  
22                MR. MACE:         Objection, time.  
23   A     In the later years, yes.
24   Q     Who created the computer program?
25   A     I don't know.
0174
 1   Q     Was it something that somebody within 
 2         Tastemaker/Givaudan prepared, or a commercial 
 3         product?
 4   A     I don't know.  Our early years I don't know.  
 5         Early years it was manual, was a Word 
 6         document.  Then later on it became a 
 7         computerized program, but I don't know.
 8   Q     Following the generation of the MSDS sheets, 
 9         would a person read them before they went to 
10         the customer?
11   A     No.
12   Q     So they would be generated and sent out 
13         manually -- sent out automatically with no 
14         further review?  
15                MR. MACE:         Objection, over 
16         broad.  
17   A     Yes.
18   Q     Who would be in a better position than you to 
19         determine how MSDS sheets were generated?  
20                MR. MACE:         Objection.
21   A     No one.  I know how they were generated.
22   Q     No one would have more knowledge than you 
23         about MSDS sheets?
24   A     No.  
25                MR. McCLAIN:      No further 
0175
 1         questions.  
 2                MR. WOODSIDE:     At this time no 
 3         questions.
 4                  REDIRECT EXAMINATION
 5   By Mr. Mace:
 6   Q     Miss Higley, what years did you work at 
 7         Tastemaker/Givaudan?
 8   A     I need to look at my resume.
 9                MR. McCLAIN:      '91 through 2004.  
10   A     '91 through 2004.
11   Q     What was your position at Tastemaker?
12   A     First I was the director of scientific and 
13         regulatory affairs.  Then I became a vice 
14         president of product safety and regulatory.
15   Q     What was your education and training?
16   A     Master's in biology, Ph.D. in biochemistry and 
17         post doc in toxicology.
18   Q     Were you part of the team that was looking 
19         into the respiratory issues at the Tastemaker 
20         plant in the mid '90s?
21   A     Yes.
22   Q     What was your role?
23   A     My primary role was regulatory and 
24         biochemistry, science.
25   Q     Dr. Higley, did you ever form a belief that 
0176
 1         diacetyl was causing any lung disease in 
 2         employees at the Tastemaker plant?
 3   A     I did not come to the conclusion that diacetyl 
 4         was causing lung disease in the Tastemaker 
 5         plant.
 6   Q     Did you ever conclude that butter flavoring 
 7         was causing any lung disease in employees at 
 8         the Tastemaker plant?
 9   A     I didn't come to any conclusion that butter 
10         flavoring was causing lung disease in the 
11         Tastemaker plant.
12   Q     During the investigation in the 1990's did you 
13         have direct discussion with Dr. Lockey?
14   A     Yes, I did.
15   Q     Did you have direct discussions with 
16         Dr. Lockey regarding potential causative 
17         agents?
18   A     Yes, I did.
19   Q     What did Dr. Lockey tell you about that?
20                MR. McCLAIN:      Object to the form of 
21         the question, calls for hearsay.
22   A     Dr. Lockey and I discussed looking at Talmadge 
23         King's paper, identifying the agents that are 
24         in Talmadge King's paper, and reviewing them 
25         in relationship to other things in our company 
0177
 1         that were structurally related to those.
 2   Q     Did any of the discussions -- at that point 
 3         did Dr. Lockey ever suggest diacetyl as the 
 4         cause of lung disease at Tastemaker?
 5   A     No, he did not.
 6   Q     Did Dr. Lockey ever suggest butter flavor as 
 7         the cause of lung disease at Tastemaker?
 8                MR. McCLAIN:      Object to the form of 
 9         the question as leading.  Also calls for 
10         hearsay.  
11   A     In my meetings with Dr. Lockey, he did not 
12         suggest that butter flavors were a causative 
13         agent.
14   Q     Did Dr. Lockey ever suggest that it was a 
15         product that was going out the door to a 
16         customer that was causing any lung disease?
17                MR. McCLAIN:      Object to the form of 
18         the question, leading, suggestive, calls for 
19         hearsay, and assumes facts not in evidence.
20   Q     The answer to my question?  
21   A     In my meetings with Dr. Lockey he did not 
22         indicate there was any ingredients in butter 
23         flavors that would cause respiratory disease.
24   Q     Did Dr. Lockey ever suggest it was a product 
25         going out the door to a customer that was 
0178
 1         causing any lung disease?
 2                MR. McCLAIN:      Objection, 
 3         argumentative.
 4   A     No, Dr. Lockey did not suggest it was any 
 5         product going out the door to a customer.
 6   Q     Did any of the outside experts ever suggest, 
 7         Dr. Brooks or anybody else ever suggest to you 
 8         diacetyl was causing any lung disease in 
 9         employees at the Tastemaker plant?
10   A     No, no experts advised us that diacetyl was 
11         causing lung disease in the Tastemaker plant.
12   Q     Did any of the experts, whether it was 
13         Dr. Brooks or anyone, suggest to you that 
14         butter flavoring was causing lung disease in 
15         employees at the Tastemaker plant?
16   A     No, none of our experts indicated that.
17   Q     Did you ever think it was a product that 
18         Tastemaker or Givaudan was shipping out the 
19         door that was causing bronchiolitis obliterans 
20         or lung disease?
21   A     No, I did not believe it was a product that 
22         was causing bronchiolitis obliterans.
23   Q     Throughout the period of this investigation in 
24         the 1990's did you ever hear anybody even 
25         suggest that a product Tastemaker was shipping 
0179
 1         out the door was causing bronchiolitis 
 2         obliterans or lung disease?
 3                MR. McCLAIN:      Object to the form of 
 4         the question.  The question is argumentative.  
 5         It's leading and suggestive.
 6   Q     You can answer.  
 7   A     Can you repeat the question?  
 8   Q     Yes.  Throughout this period in the 1990s when 
 9         this investigation was going on, did you ever 
10         hear anybody even suggest that a product that 
11         Tastemaker was shipping out the door was 
12         causing bronchiolitis obliterans or lung 
13         disease?
14                MR. McCLAIN:      Same objection.  
15   A     No, I did not.
16   Q     Did you ever feel any of your customers had a 
17         risk of a similar issue?  
18   A     Absolutely not.  
19                MR. McCLAIN:      Objection to the form 
20         of the question.
21   Q     Since counsel was talking over you, did you 
22         ever -- 
23                MR. McCLAIN:      You have to allow me 
24         a chance to object.  That is how the procedure 
25         works.  
0180
 1                MR. MACE:         Give him a second to 
 2         object.  
 3   A     I apologize.
 4   Q     Dr. Higley, did you ever feel any of your 
 5         customers had a risk of similar issues? 
 6                MR. McCLAIN:      Object to the form of 
 7         the question.  
 8   A     No, I did not.
 9   Q     Did Dr. Brooks or Dr. Lockey, or any of the 
10         outside consultants ever recommend that 
11         Tastemaker notify any customer about any 
12         respiratory issues?
13                MR. McCLAIN:      Object to the form of 
14         the question.  
15   A     None of our consultants advised us on that.
16   Q     Did Dr. Brooks or Dr. Lockey or any of the 
17         outside consultants ever recommend that 
18         Tastemaker notify any customers about any 
19         preventative measures?
20                MR. McCLAIN:      Same objection.
21   A     No, they did not.
22   Q     At the end of the day, what is your 
23         understanding regarding the cause of 
24         respiratory issues?
25   A     My conclusion was we could not come up with 
0181
 1         one causative, single causative agent that was 
 2         causing the respiratory illness.
 3   Q     What were the most likely candidates in your 
 4         mind?
 5   A     When you look at Talmadge King's article, 
 6         talking things that are in the classes of 
 7         ammonia, sulphurs.  Then external to that 
 8         would be chlorines perhaps.  There is viral 
 9         and there is idiopathic conditions.
10   Q     In the data there remains some uncertainty in 
11         terms of exactly what medical condition 
12         various individuals had?
13   A     Yes.
14   Q     In the data there remains some uncertainty 
15         whether it was caused by working at the 
16         Tastemaker plant?
17   A     Absolutely, yes.
18   Q     Were there other employees doing the same job 
19         as the person with respiratory issues who did 
20         not have any problems?
21   A     Yes.
22   Q     What did you conclude about that?
23                MR. McCLAIN:      Object to the form of 
24         the question.
25   A     It supported our conclusion that one could not 
0182
 1         come up with one single causative agent.
 2   Q     Was there any discussion about individual 
 3         susceptibility or genetic predisposition?
 4   A     There was discussion about prior employment, 
 5         some of that would lead to predisposition, as 
 6         well as smoking.
 7   Q     Did some of these individuals have exposure at 
 8         jobs before they came to Tastemaker?
 9   A     Yes, they did.
10   Q     Was there any discussion about general 
11         environmental factors in the Cincinnati area?
12   A     Dr. Lockey and I at one point discussed that 
13         in the Cincinnati area there is in general a 
14         higher prevalence of asthma.
15   Q     Counsel implied you should have contacted 
16         customers about respiratory issues at 
17         Tastemaker.  Why didn't you contact customers?
18   A     None of our external experts advised us we 
19         needed to do that.  We did not feel that this 
20         was a finished flavor formulation issue.
21   Q     Did you ever feel it was something you were 
22         sending out the door that was causing any of 
23         these issues?
24                MR. McCLAIN:      Object to the form of 
25         the question, argumentative.  
0183
 1   A     No, we did not.
 2   Q     There has been mention about the number of 
 3         outside experts, Dr. Lockey, and others.  Did 
 4         Tastemaker have the in-house expertise to look 
 5         at these issues?
 6   A     We didn't have complete in-house expertise.  
 7         We needed to go to the outside, toxicologists, 
 8         Dr. McKay with PFTs and Dr. Lockey, and Susan 
 9         Hubbs in epidemiology.
10   Q     In terms of outside toxicology help who did 
11         you have?
12   A     We went to TRS, Toxicology Regulatory 
13         Services, Dr. Andrea Nicaporoff.
14   Q     In terms of industrial hygiene did you get 
15         outside industrial hygiene help as well?
16   A     John Hochstrasser obtained that, yes.
17   Q     Can you estimate for us even in a rough 
18         ballpark how much money Tastemaker spent 
19         looking into these issues?
20                MR. McCLAIN:      Object to the form of 
21         the question.  
22   A     Approximately half a million dollars.
23   Q     Did you and others at Tastemaker follow up on 
24         recommendations that the outside consultants 
25         made?
0184
 1   A     Yes.
 2   Q     Can you think of a single example of anything 
 3         that Dr. Lockey recommended that Tastemaker 
 4         did not do?
 5   A     No.
 6   Q     Did any of the outside consultants suggest 
 7         that any animal testing be done?
 8   A     No.
 9   Q     Counsel asked you about the fact that in the 
10         early '90s when these issues came up there was 
11         some work brought in from the Middletown, 
12         plant.  What kind of work did they do in 
13         Middletown, what was being moved to 
14         Cincinnati?
15                MR. WOODSIDE:     Just for the record, 
16         the correct pronunciation is Middletown.
17                MR. MACE:         No, it's not Ohio, 
18         it's New York.  I am not sure you are right.  
19         Maybe you are right. 
20   A     It is Middletown.  We brought in for the most 
21         part, my recollection, process flavors.
22   Q     What do you mean by that, what type of raw 
23         material?
24   A     Those raw materials would be the nitrogen 
25         containing enzymes, then they are heated to 
0185
 1         make like a soup base.
 2   Q     There was reference to the word sensitive.  
 3         What do you mean when you use that term?
 4   A     Scientifically sensitive to me is an 
 5         irreversible irritation.  Sensitive in the 
 6         context of some of the documents we discussed 
 7         today is more of an annoyance.
 8   Q     You were asked about confidentiality 
 9         agreements.  Was it unusual for Tastemaker to 
10         have third parties sign confidentiality 
11         agreements when they were given access to 
12         Tastemaker processes using trade secrets?
13   A     It was common practice for us to have 
14         confidentiality agreements.
15   Q     Not just with the consultants helping you on 
16         this, but with other third parties?
17   A     Absolutely.
18   Q     Are you aware of Dr. Lockey ever requesting to 
19         publish anything and Tastemaker not allowing 
20         it?
21   A     No.
22   Q     Did Dr. Lockey ever recommend that you go to 
23         NIOSH?
24   A     No.
25   Q     Did any of the outside consultants ever 
0186
 1         recommend you go to NIOSH?
 2   A     No, they did not.
 3                (Exhibit Number 37
 4                Marked for identification.) 
 5   Q     Showing you what we're marking for 
 6         identification as Exhibit 37.  Do you 
 7         recognize that?
 8   A     Yes.
 9   Q     What is it?
10   A     It is an abstract literature search from -- 
11         that accesses the NIOSH technical information 
12         database of worker exposure articles.
13   Q     Why was this done?
14   A     This was done to review what would be in the 
15         NIOSH literature with regard to bronchiolitis 
16         obliterans and to see what causative agents 
17         NIOSH publications had indicated could be 
18         potentially causative agents.
19   Q     Did you review these search results back in 
20         the mid '90s?
21   A     Yes, we did.
22   Q     In terms of the type of things you were 
23         finding in terms of causative agents for 
24         bronchiolitis obliterans, what were you 
25         finding?
0187
 1   A     Asbestos, vinyl chlorides, chlorine gas, 
 2         ammonia, phosgene, halogen gases.
 3   Q     Is there any reference in the searches to 
 4         diacetyl being a potential cause of 
 5         bronchiolitis obliterans?
 6   A     No.
 7                (Exhibit Number 38
 8                Marked for identification.)
 9   Q     Handing you what we are marking as Exhibit 
10         38.  Do you recognize that?
11   A     Yes, I do.
12   Q     What is that?
13   A     NERAC is a literature search service that 
14         goes -- has a different set of databases 
15         behind it.
16   Q     That is also part of your literature search 
17         back in the mid '90s looking for potential 
18         causes of bronchiolitis obliterans?
19   A     Yes, it was.
20   Q     What did you find with this search?
21   A     This one indicated in animal feed workers 
22         proteolytic enzymes, ammonia, chlorine, 
23         phosgene, fire smoke, cocaine, pesticides.
24   Q     Did you find any reference to diacetyl as 
25         being a potential cause of bronchiolitis 
0188
 1         obliterans?
 2   A     No, we did not.
 3                (Exhibit Number 39
 4                Marked for identification.)
 5   Q     Showing you what we will mark as Exhibit 39.  
 6         Do you recognize that?
 7   A     Yes, I do.
 8   Q     What is it?
 9   A     This is what is called the base list.  As part 
10         of the hazard determination program, first 
11         thing that is required is you come up with a 
12         list of chemicals.  This is the list of 
13         chemicals that we began our investigation on.  
14         There is approximately 16, more than 1600 
15         ingredients.
16   Q     You referred to a base list.  Is this the 
17         listing of all the raw materials at 
18         Tastemaker?
19   A     No, there was approximately at the time 
20         approximately 5,000 to 6,000 raw materials.  
21         This is a subset of the list.  We were trying 
22         to pare our list down of ingredients.
23   Q     There is, in terms of the information you 
24         gathered on each one of these substances, what 
25         did you gather?
0189
 1   A     The approach I used, which would be in the 
 2         second step of the hazard identification, is 
 3         to gather the data.  Since many of these 
 4         chemicals have neither an OSHA PEL, or they 
 5         have any data on them, the approach I used was 
 6         to use structural activity relationships.  
 7         What you see in here are the class number for 
 8         the material, the structural class, molecular 
 9         formula, in the margin to the left you see the 
10         chemical class.  There are approximately 31 to 
11         34 classes.  
12                (Exhibit Number 40
13                Marked for identification.)
14   Q     Showing you what we're going to mark as 
15         Exhibit 40; do you recognize that?
16   A     Yes, I do.
17   Q     What is it?
18                MR. McCLAIN:      Can you wait until I 
19         have it in front of me?  
20                MR. MACE:         Sure.
21   Q     What is that, ma'am?
22   A     Reference list for the ingredients that are in 
23         the FFIDS sheets.
24   Q     Counsel referred to like a nine volume set, is 
25         that what you are referring to?
0190
 1   A     Yes, at the time.  Now it's electronic.
 2   Q     Approximately how many different flavors were 
 3         listed on this sheet?
 4   A     Probably 1200, more than 1200 flavor 
 5         ingredients on here.
 6   Q     These are all thing presents at the Tastemaker 
 7         plant?
 8   A     Not all of them would be present.
 9   Q     What about the base list, Exhibit 39, were 
10         those all things present at the Tastemaker 
11         plant?
12   A     They were all materials that had the potential 
13         to be there, yes.
14   Q     You said what, the total number of raw 
15         materials that Tastemaker was using back in 
16         the mid '90s?
17   A     5,000 to 6,000.
18   Q     What did you do -- go back to Exhibit 39 a 
19         minute.  What did you do once you came up with 
20         this list of the base, gather some information 
21         on each of the chemicals?
22   A     Group the chemicals according to their class. 
23         Then began the next phase, which is to gather 
24         the data.  So we would go to MSDSs, FFIDS 
25         sheets.  I also employed a consultant 
0191
 1         toxicologist to do a complete literature 
 2         search on the chemical classes, the 
 3         ingredients inside these chemical classes.
 4   Q     In terms of this approach of grouping the 
 5         chemicals into structural classes or chemical 
 6         classes, was that something you discussed with 
 7         Dr. Lockey?
 8   A     Yes, I did.
 9   Q     What kind of feedback did you get back from 
10         him?
11   A     Dr. Lockey felt this -- 
12                MR. McCLAIN:      Objection, calls for 
13         hearsay.
14   Q     You can answer.  
15   A     In my meetings with Dr. Lockey we discussed 
16         this approach.  He felt it was a prudent 
17         approach given we couldn't identify the 
18         causative agent.
19                (Exhibit Number 41
20                Marked for identification.)
21   Q     Showing you what was marked as Exhibit 41.  Do 
22         you recognize that?
23   A     Yes, I do.
24   Q     What is it?
25   A     It is an e-mail, copy of an e-mail from myself 
0192
 1         to Janice Dees.
 2   Q     What date is it?
 3                MR. McCLAIN:      What is the Exhibit 
 4         number?  
 5                MR. MACE:         41.
 6   Q     What is the date, ma'am?
 7   A     August 2, 1995.
 8   Q     What did you say in your e-mail?
 9   A     I'm summarized my conversation with 
10         Dr. Lockey, in which case we felt that, in 
11         summarizing, it's our professional opinion 
12         that a risk assessment on all the chemicals 
13         would be work intensive and not necessary.  
14         That we are developing another approach that 
15         gets at the plant issues on a broad basis 
16         rather than on an unmanagable chemical by 
17         chemical basis.
18   Q     In terms of a broad basis, is that what you 
19         just described to us with these categories?
20   A     That's correct.
21   Q     Refer you to a document marked earlier today.  
22         Let me ask a more general question.  In terms 
23         of these you said there were 31 to 34 
24         different chemical groups.  In terms of -- did 
25         you do any work to try to compare those to the 
0193
 1         agents you saw listed in the literature as 
 2         potential causative agents to bronchiolitis 
 3         obliterans?
 4   A     Yes, I did.
 5   Q     What did you find on that?
 6   A     I found the ones that were of similar 
 7         structural class would have been, you look at 
 8         the Talmadge King paper, would be the nitrogen 
 9         containing and sulfur containing.
10   Q     In terms of those class numbers, do you happen 
11         to remember what those class numbers were?
12   A     Probably 27, sulfur containing compounds are 
13         class 27.  Heterocylic nitrogen compounds are 
14         class 24.
15   Q     What class would diacetyl fall in?
16   A     Ketone, aliphatic ketone.
17   Q     Was that either 27 or 24?
18   A     No, it was not.
19   Q     Let's step back from diacetyl for a minute.  
20         Any of the research you did on potential 
21         causative agents for bronchiolitis obliterans, 
22         did you see any ketones that are listed as 
23         potential causative agents?
24   A     No, I did not.
25                (Exhibit Number 42
0194
 1                Marked for identification.)
 2   Q     Showing you what we marked for identification 
 3         as Exhibit 42.  Do you recognize that?
 4   A     Yes, I do.
 5   Q     What is it?
 6   A     It is a toxicological assessment of the 
 7         aromatic aldehydes, which is one of the 
 8         groups.
 9   Q     The company referenced at the top, TRS, who is 
10         that?
11   A     The consultant, a toxicology consultant that 
12         was working with us.
13   Q     The type of reports that you described to us?
14   A     Yes.  This is in essence the third part of 
15         hazard identification, which is you accumulate 
16         the data, you analyze it, document it.
17   Q     In terms of how long it took TRS to do one of 
18         these reports for a structural group, how long 
19         ballpark did it take?
20   A     Approximately six months.
21   Q     Counsel asked you about Exhibit 26, the flavor 
22         fragrance ingredient data sheet for diacetyl.  
23         Can you get that out, please.
24                There is a reference on the first page 
25         to Environ, who is that?
0195
 1   A     Environ is the toxicological consulting agency 
 2         that was utilized in 1985 to accumulate the 
 3         data, and review the data for its 
 4         applicability and come to the conclusion as to 
 5         the appropriate health hazard statements.
 6   Q     Are those listed in here somewhere, the 
 7         appropriate health hazard statements?
 8   A     Very last page.  Number 8, statements relevant 
 9         to making health hazard determination.
10   Q     What did it say for diacetyl?
11   A     Liquid and vapor may be irritating to skin and 
12         eyes, vapor is irritating to throat and lungs.
13   Q     Were those statements used in all the MSDS 
14         preparation that you were involved with in 
15         regard to diacetyl?
16   A     Yes, they were.
17   Q     Back to that in a minute.
18                Another resource you mentioned was MSDS 
19         sheets from your suppliers.  Showing you what 
20         we are going mark as Exhibit 43.  
21                (Exhibit Number 43
22                Marked for identification.)
23   Q     Do you recognize that?
24   A     Yes, I do.
25   Q     What is it?
0196
 1   A     MSDS sheet from Polarome for diacetyl.
 2   Q     What is the date on it?
 3   A     8-1-92.
 4   Q     In terms of the health hazard rating you were 
 5         being told by your supplier?
 6   A     One.
 7   Q     What were you being told about respiratory 
 8         protection?
 9   A     Not usually required.
10   Q     In terms of the health hazard warnings you 
11         were given?
12   A     Liquid and vapor is irritating to the skin and 
13         eyes.  Vapor is irritating to throat and 
14         lungs.
15   Q     Look over at Exhibit 34, are similar warning 
16         statements given in your MSDS sheet for the 
17         butter flavor Mr. McClain asked you about?
18   A     Similar to what?  
19   Q     Similar to what appeared in the FFIDS?
20   A     These statements are -- these MSDS are a 
21         compilation of all the ingredients that are 
22         greater than 1 percent.  The statement is 
23         mostly reflective of butyric acid, which is 
24         more severe than diacetyl.
25   Q     Let me focus on the lungs.  In terms of the 
0197
 1         FFIDS for diacetyl, what was the summary 
 2         statement given to you in terms of the 
 3         respiratory?
 4   A     Vapor is irritating to throat and lungs.
 5   Q     In terms of the MSDS sheets for the butter 
 6         flavoring that counsel showed you, inhalation 
 7         what does it say?
 8   A     Inhalation is irritating to nose, throat and 
 9         lungs.
10   Q     While we are on Exhibit 34, you were asked 
11         about this particular butter flavor.  You were 
12         read from a document with some questions about 
13         liquids, is this product a liquid, the one 
14         referenced in Exhibit 34?
15   A     No, this is a powder.
16   Q     You were asked questions about going to FEMA.  
17         Let me show you document we will mark Exhibit 
18         44.  
19                (Exhibit Number 44
20                Marked for identification.)
21   Q     Exhibit 44, Dr. Higley, do you recognize that?
22   A     Yes, I do.
23   Q     What is it?  
24   A     It's our July meeting, the briefing bullets 
25         for our meeting with FEMA.
0198
 1   Q     What year was that?
 2   A     1996.
 3   Q     These are your discussion points.  What were 
 4         your second and third discussion points?
 5   A     I was summarizing, I wanted us to be able to 
 6         summarize when we went to FEMA that in our 
 7         review of the literature, my review of the 
 8         literature, the causative agents of 
 9         bronchiolitis obliterans that show up in the 
10         literature are not associated with the 
11         Tastemaker cases.
12                Third bullet is that our determination 
13         at that point has been that there has been no 
14         specific chemical, not even in the literature, 
15         that has been linked, and any specific 
16         chemical at this point would be circumstance.
17   Q     What was the next point?
18   A     We had to -- we were informing FEMA we had two 
19         cases that occurred following acetaldehyde 
20         exposure as it was reported by the employees.
21   Q     The attachments on here, there is an appendix 
22         A, appendix B, who prepared those?
23   A     I did.
24   Q     The basis for appendix B, where did you get 
25         that information?
0199
 1   A     Majority of this was out of Talmadge King's 
 2         article.  In addition, looking at the 
 3         literature searches that we previously looked 
 4         at some of them, with regard to a search on 
 5         bronchiolitis obliterans and causative agents.
 6   Q     What was the summary you provided in terms of 
 7         the potential causative agents of 
 8         bronchiolitis obliterans are?
 9   A     A few things I was trying to bring to the 
10         attention of FEMA, this was something new for 
11         them, was how bronchiolitis obliterans 
12         syndrome could be distinguished from other 
13         respiratory diseases.  Very rare and in 
14         general when it has been associated with it in 
15         the literature we found it was toxic fume 
16         exposure, sometimes transplants.  Sometimes 
17         it's very difficult to accurately diagnose 
18         bronchiolitis obliterans, it can be confused 
19         with other chronic obstructive disease.
20   Q     In terms of what was the characteristic of 
21         bronchiolitis obliterans, what did you 
22         conclude on that?
23                MR. McCLAIN:      Object to the form of 
24         the question, she stated repeatedly she is not 
25         a medical doctor.
0200
 1   Q     You can answer.  
 2   A     The characteristic is it is characterized by 
 3         dilation and destruction of the small 
 4         airways.  Concentric fibrous obliteration of 
 5         the small airways.
 6   Q     In terms of the potential causative agents, 
 7         you mentioned some earlier.  Do you have any 
 8         research that indicated viral or infectious 
 9         agents can cause it?
10   A     Yes, I believe that is in Talmadge King's 
11         article, yes.
12   Q     In terms of the types of gases, fumes, mist, 
13         vapors you had seen reported, what did you 
14         conclude on that?
15   A     That is also in Talmadge King's article.  None 
16         of these ingredients, none of these materials 
17         are used in Tastemaker facilities.
18   Q     What were the ones you listed?
19   A     Ammonia, chlorine, hydrogen fluoride, hydrogen 
20         sulfide, nitrogen dioxide, ozone, phosgene, 
21         sulfur dioxide, chloropicrin, 
22         trichloroethylene, cadmium oxide, 
23         methylsulfate, talcum powder and oxygen 
24         toxicity.
25   Q     A document counsel showed you, Exhibit 32, was 
0201
 1         with regard to another meeting you had with 
 2         FEMA.  In terms of the objective as counsel 
 3         read to you on the second page there, words 
 4         about not unique to Tastemaker but something 
 5         that could be more generally present in 
 6         workplaces of other flavor manufacturers; what 
 7         did you mean by that?
 8   A     It was still our investigation was leading us 
 9         to that we didn't feel at the time that there 
10         was anything that we were doing differently in 
11         our plant that would make this situation 
12         unique to Tastemaker.
13                Again, to follow up and to discuss this 
14         with other flavor manufacturers, to see if 
15         they were having similar experiences.
16   Q     You distinguish in your mind between a flavor 
17         manufacturer and a flavor user?
18   A     Absolutely, yes.  
19                MR. McCLAIN:      Object to the form of 
20         the question.
21   Q     What did you refer to?
22   A     Flavor manufacturers are those people that use 
23         the meat material, are exposed to it at higher 
24         concentrations because it's 100 percent 
25         concentrated ingredients, those are flavor 
0202
 1         manufacturers.
 2   Q     That is the phrase you used in this memorandum 
 3         back at the time, contemporaneous?  
 4                MR. McCLAIN:      Object to the form of 
 5         the question.
 6   Q     Is it?
 7                MR. McCLAIN:      The document is its 
 8         own best evidence.
 9   Q     Is that the term you used, ma'am, in the 
10         contemporaneous document back in '96, flavor 
11         manufacturers?
12   A     Yes, it is.
13   Q     You were asked some questions in regards to 
14         some work that Dr. Hubbs did.  Let me show you 
15         what we will mark as Exhibit 45.  
16                (Exhibit Number 45
17                Marked for identification.)
18   Q     Do you recognize that?
19   A     Yes, I do.
20   Q     What is it?
21   A     This is an abstract of Hubbs, et al. from a 
22         presentation they gave in 2004 at the SOT, 
23         Society of Toxicology annual meeting.
24   Q     In terms of what material was being tested by 
25         Dr. Hubbs?
0203
 1                MR. McCLAIN:      I object to the 
 2         question, she is not a toxicologist.  She said 
 3         so.
 4   Q     What material was being tested by Dr. Hubbs?
 5   A     Diacetyl.
 6   Q     What were the exposure concentrations?
 7   A     99.3, 198.4, 294.6 parts per million.
 8   Q     At any of those concentration levels was it 
 9         reported that there were any significant 
10         changes in the lung?
11   A     No, there were not any significant changes in 
12         the lung under those exposure conditions.
13   Q     What was the conclusion as you understood it 
14         reported in the diacetyl?
15                MR. McCLAIN:      Object to the form of 
16         the question.  It states its conclusion.
17   Q     You can answer.  
18   A     The conclusion, the last sentence, findings 
19         suggest that acute exposure to diacetyl alone 
20         is sufficient to cause upper respiratory tract 
21         epithelial necrosis in rats at a 
22         concentrations of 198.4.
23   Q     What were your -- 
24   A     Parts per million.  Indicates at the lower 
25         dose they did not see any upper respiratory 
0204
 1         tract effects.
 2   Q     Lower dose being what?
 3   A     99.3 part per million.
 4   Q     So it was the first dose at which -- what was 
 5         the lowest dose at which Dr. Hubbs found an 
 6         effect?
 7   A     198.4 parts per million that is effecting the 
 8         upper respiratory tract.
 9   Q     Even at the highest concentration were there 
10         any effects in the lung?
11   A     No, no effects in the lower respiratory tract.
12   Q     Showing you what 46 we will marked as Exhibit 
13         46.
14                (Exhibit Number 46
15                Marked for identification.)
16   Q     Do you recognize that?
17   A     Yes, I do.
18   Q     What is it?
19   A     NIOSH health hazard evaluation report, 
20         December 2004 of the Marion, Ohio plant.
21   Q     If you go back to page 23, table 9, personal 
22         ketone exposures for diacetyl.  
23                MR. WOODSIDE:     What page?  
24                MR. MACE:         Page 23.
25   Q     Did you see anything even approaching the 198 
0205
 1         at which NIOSH found upper airway effects?
 2                MR. McCLAIN:      This is just 
 3         ridiculous.  I object to the form of the 
 4         question.  That question mixes apples and 
 5         oranges and gets a fruit salad.  I object.
 6   Q     You can answer, ma'am.  
 7   A     The highest level I see is 1.97 parts per 
 8         million --
 9                MR. McCLAIN:      I hope you go down 
10         this road at trial.  This is just foolish.  
11   A     --  significantly lower than -- 
12                MR. McCLAIN:      I object.
13   Q     You can answer again, since counsel was 
14         interrupting.  
15                MR. McCLAIN:      This calls for an 
16         expert opinion, this is not an expert 
17         deposition.  I object to it.  I object to her 
18         offering an opinion which she is not qualified 
19         to offer at any event on this issue.  Lacks 
20         foundation.
21   Q     You can answer, ma'am. 
22   A     The highest level I see on this table is 1.97 
23         parts per million which is significantly lower 
24         than the lowest dose against which they found 
25         an effect, which was 198.4 parts per million.
0206
 1   Q     Look over at Exhibit 7 -- look at the New 
 2         England Journal article.  Referring to the 
 3         discussion on page 337, refers to 352 parts 
 4         per million.
 5   A     Um-hum.  
 6                MR. McCLAIN:      I object.
 7   Q     Did you see anything approaching 352 parts per 
 8         million at the ConAgra test results?
 9                MR. McCLAIN:      Objection.  
10   A     No, I did not.
11   Q     In terms of the document counsel showed you in 
12         The New England Journal of Medicine, is it 
13         your understanding that related to the ConAgra 
14         Marion plant?
15   A     No.
16   Q     What did that relate to?
17   A     I believe it relates to the Jasper, Missouri 
18         plant.
19   Q     In terms of the butter flavoring that was 
20         being tested at the Jasper, Missouri plant, 
21         was that a butter flavoring that Givaudan or 
22         Tastemaker had sent to the ConAgra Marion 
23         plant?
24   A     No.
25   Q     Was it even a butter flavoring that Tastemaker 
0207
 1         or Givaudan had produced?
 2   A     No, it was not.
 3   Q     Have you reviewed the reports of Dr. Hubbs 
 4         work, both the '02 work that she did and the 
 5         '04 work she did?
 6   A     Yes, I have.
 7   Q     Were there any findings of bronchiolitis 
 8         obliterans in either of those studies?
 9   A     No, there were not.  
10                MR. McCLAIN:      Can I hear that 
11         question back.
12                (Question read.)
13                MR. McCLAIN:      Objection to the form 
14         of the question.  Rats don't get bronchiolitis 
15         obliterans, your question doesn't make any 
16         sense.  Your question proposes a nullity. 
17   Q     You were asked about the BASF study.  Do you 
18         know when that study first became available in 
19         the United States?
20   A     2001, the date stamp.
21   Q     What type of study was that?
22   A     Acute LC50.  Do you know what exhibit that is?
23   Q     I believe Exhibit 25.  
24   A     Yes, an LC50 study.
25   Q     Was there any finding in that study of any 
0208
 1         bronchiolitis obliterans lesions, any 
 2         granulation of the small airways 
 3         characteristic of bronchiolitis obliterans?
 4                MR. McCLAIN:      Objection, rats don't 
 5         get bronchiolitis obliterans.  The question is 
 6         a nullity, I object.
 7   Q     You can answer, Doctor.  
 8   A     I don't see any references to effects of the 
 9         distal airways.
10   Q     You were asked some questions about the Bakers 
11         study.  If you can go to the Exhibit 14, 
12         please.
13                Exhibit 14 was an exhibit counsel used 
14         with you, '95 with an attached article 
15         abstract on the International Bakers services, 
16         do you remember that?
17   A     Yes, I do.
18   Q     Plaintiff made the comment you should call 
19         NIOSH because they can figure things out.  At 
20         the International Bakers plant did NIOSH 
21         figure out what was causing respiratory 
22         injuries in that plant?
23   A     No, they did not.
24   Q     Is that referenced in the abstract that you 
25         received on this?
0209
 1   A     Yes, it reads no specific etiology of the 
 2         illness was identified.
 3   Q     What did the next sentence read in abstracts 
 4         you received?
 5   A     The authors conclude that a short-term 
 6         exposure to a specific mix may have triggered 
 7         the reaction and initiated the disease in 
 8         these individuals.
 9   Q     Did it refer right above that to other workers 
10         in the mixing room?
11   A     Yes.
12   Q     What does it say about that?
13   A     Demonstrated symptoms of the disease within 
14         five to six months of beginning employment.
15   Q     What did it say about the other workers?
16   A     Two other workers in the mixing room were not 
17         effected.
18   Q     In addition to looking at the abstract of it, 
19         did you actually look at the report back in 
20         the mid '90s?
21   A     Yes, I did.
22   Q     Show you what we marked as Exhibit 47.  
23                (Exhibit Number 47
24                Marked for identification.)
25   Q     Recognize that?
0210
 1   A     Yes, I do.
 2   Q     What is that?
 3   A     The NIOSH health hazard evaluation report, the 
 4         International Bakers report.
 5   Q     In terms of what medical conditions these two 
 6         individuals have, was there any information 
 7         you learned on that, on the bottom of page 4 
 8         with regard to case one?
 9                MR. McCLAIN:      Can I hear the 
10         question back.  
11                (Question read.)
12                MR. McCLAIN:      That is leading, I 
13         object.
14   A     Statement reads although bronchiolitis has 
15         been reported in as a compilation of extrinsic 
16         allergic alveolitis, the clinical picture in 
17         these cases was not suggestive, either of 
18         asthma or hypersensitivity.  Suggestive of 
19         emphysema.
20   Q     Was there a discussion in the report when you 
21         went to the actual report, in terms of what 
22         some of the possible environmental causes were 
23         according to NIOSH?
24   A     Yes.  They discussed nuisance particulates 
25         grain dust, amorphous silica, proteolytic 
0211
 1         enzymes, bacterial endotoxins and bakery 
 2         flour.
 3   Q     Was there any mention by NIOSH of diacetyl 
 4         being a potential causative agent?
 5   A     No, there was not.
 6   Q     Any mention of benzaldehyde being a potential 
 7         causative agent?
 8   A     No.
 9   Q     Any reference to acetaldehyde being a 
10         potential causative agent?
11   A     No, there was not.
12   Q     Turn to Exhibit 15, please, Exhibit 15 counsel 
13         handed to you and representation was made 
14         these documents were all part of a meeting.  
15         Were all the documents here part of a project 
16         team meeting in September of '95?
17   A     I can't verify that.  In looking at that 
18         agenda, my documentation as to the evaluation 
19         based on structurtivity relationship is in 
20         there, would be in there.  That would be 
21         brainstorming and categorization, the 
22         attachments, I cannot see how they are related 
23         to this.
24                MR. MACE:         Counsel, these don't 
25         have any Bates numbers.  Do you know where 
0212
 1         these came from?
 2                MR. CRICK:        They were exhibits 
 3         from Lockey's deposition.  He produced them 
 4         like that.
 5   Q     You can't say one way or another, ma'am, 
 6         whether those attachments go with the cover 
 7         page?
 8   A     No, I can't.
 9   Q     The categorization sheets you referred to, is 
10         that the listing of the 31 categories you 
11         referred to earlier?
12   A     Yes.
13   Q     When you were referring to category 27 and 24, 
14         those would be the ones listed on here?
15   A     That's correct.
16   Q     The back of this document was a table called 
17         raw material sensitivity list.  Is that your 
18         document, did you prepare that document?
19   A     No, that is not my document.
20   Q     In terms of the Bakers list there are a number 
21         of stars down the pages, approximately how 
22         many stars are there under the Bakers list?
23   A     Over 130.
24   Q     Listing of chemicals, were those all chemicals 
25         present at the Tastemaker plant?
0213
 1   A     Yes.
 2   Q     In terms of the employee sensitivity, what did 
 3         you understand that to be?
 4                MR. McCLAIN:      Objection, asked and 
 5         answered.  
 6   A     This is not the scientific definition.  This 
 7         is what the employee indicates that they might 
 8         have an annoyance reaction with using.
 9   Q     In terms of the stars in the Bakers list, was 
10         it your understanding these were all things 
11         that the two individuals with potential 
12         respiratory problems at international baker 
13         services plant had actually been exposed to?
14   A     No.  If you read the tables.  The tables refer 
15         to ingredients that -- what was the 
16         terminology -- are occasionally used in bakery 
17         mixes or another one is ingredients commonly 
18         used.  It is just a composit list.
19   Q     Was there any reference when you went back to 
20         the actual International Bakers NIOSH report 
21         that any of these substances was the actual 
22         cause of the respiratory issues in the 
23         international bakers?
24   A     No, they are not listed in the summary as 
25         being the cause.
0214
 1   Q     You were asked about Exhibit 16.  Exhibit 16 
 2         was one of the questionnaires, counsel read to 
 3         you question 18?
 4   A     Yes.
 5   Q     At Tastemaker are there any chemicals or 
 6         substances that you work with that seem to 
 7         result in tingling, burning or stinging of 
 8         your eyes, nose or throat or frequent 
 9         sneezing, or difficulty breathing.
10                When you would get reports back of 
11         various substances to that, did you assume 
12         these were all difficulty breathing 
13         responses?  
14                MR. McCLAIN:      Object to the form of 
15         the question.
16   A     No, this is quite a broad list.  Without them 
17         specifically saying it was in regards to 
18         difficulty breathing it could be in 
19         relationship to any of the symptoms that are 
20         listed there.
21   Q     Tingling in the eyes would be enough?
22   A     Yes, any one of those.  It says or.
23   Q     Go to Exhibit 13, please.  You were asked some 
24         questions about Exhibit 13, a document from 
25         April of '93.  As part of these meetings, look 
0215
 1         at the top of page 3, you were asked about 
 2         Mr. Wallace.  Did you get information 
 3         regarding Mr. Wallace?
 4   A     Yes.  There was a report that the patient's 
 5         asthma, if it did occur, was probably not work 
 6         related.
 7   Q     Middle of page 4 you are asked about 
 8         Mr. Walker.  Did you give additional 
 9         information about Mr. Walker, February 4 of 
10         '93?
11   A     Yes, Dr. Baughman reported there really is no 
12         evidence to suggest the diagnosis of 
13         bronchiolitis obliterans with obstructive 
14         pneumonia.
15   Q     In terms of the conclusions that were reached 
16         in the document, what was the first 
17         conclusion?
18   A     That Miss Irick's bronchiolitis obliterans was 
19         caused or aggravated by her exposure to 
20         chemicals in the workplace, but no causative 
21         factor could be identified.
22   Q     What was the first part of that?
23   A     There was no indication that -- true, there is 
24         no indication that Miss Irick's bronchiolitis 
25         obliterans was caused or aggravated -- 
0216
 1   Q     By her exposure to chemicals in the workplace?
 2   A     -- by her exposure to chemicals in the 
 3         workplace.
 4   Q     What was the conclusion in regard to Wallace 
 5         and Walker?
 6   A     Mr. Wallace and Walker both had asthma that 
 7         could be exacerbated by a workplace exposure 
 8         to chemical substances.
 9                MR. CRICK:        Was that from '93?  
10                MR. MACE:         Right.
11   Q     You were shown Exhibit 22.
12   A     Yes.
13   Q     Exhibit 22 counsel read you some numbers, 26 
14         employees out of 424; is that 16 percent?
15   A     No, that is closer to 6 percent.
16   Q     Attached to this was a table you were asked 
17         about.  
18                MR. McCLAIN:      You only injured 6 
19         percent, is that the point?  
20   Q     In terms of the sensitivity there, what did 
21         you understand the sensitivity to be?
22   A     Again sensitivity is not the scientific 
23         definition of sensitivity.  What the worker 
24         would indicate as being an annoying substance. 
25                MR. MACE:         I guess we better 
0217
 1         change the tape.
 2                VIDEOGRAPHER:     Off the record at 
 3         4:44.
 4                (Recess taken.)
 5                VIDEOGRAPHER:     Back on the record at 
 6         4:53.
 7   Q     You were asked some questions about Janice 
 8         Irick.  Was there additional information 
 9         Tastemaker had in its file on Miss Irick other 
10         than what Mr. McClain showed you?  
11                MR. McCLAIN:      Objection to the form 
12         of the question.  In what year?  1993 again?  
13                MR. MACE:         1990.  
14                MR. McCLAIN:      1990?  What year are 
15         you referring to, counsel?  
16   Q     1995?  
17   A     Yes, there are.
18   Q     Let me show you what has been marked as 
19         Exhibit 48.  
20                (Exhibit Number 48
21                Marked for identification.)
22   Q     Do you recognize that?
23   A     Yes, I do.
24   Q     What is it?
25   A     Letter from Dr. Colby to Janice Dees, medical 
0218
 1         service coordinator at Tastemaker.  Indicates 
 2         looking at the slides he was unable to see 
 3         good histological evidence of bronchiolitis 
 4         obliterans.  He also noted that from a letter 
 5         he received from Dr. Baughman that she had 
 6         first noted the symptoms after being under 
 7         general anesthesia for the repair of a 
 8         fistula.
 9   Q     Showing you what we are going to mark as 
10         Exhibit 49.  
11                (Exhibit Number 49
12                Marked for identification.)
13   Q     Do you recognize that?
14   A     Yes, I do.
15   Q     What is it?
16   A     It's the letter from Dr. Baughman to Michael 
17         Dohn, with regard to Janice Meenach Irick.
18   Q     What information was there?
19   A     In 1976 he indicated that in talking with Miss 
20         Meenach Irick, that she had symptoms back when 
21         she had a fistula repaired.  She was under 
22         general anesthesia, she woke up having 
23         coughs.  She has been having intermittent 
24         episodes of coughing, bronchitis since that 
25         time.
0219
 1   Q     Other any other information Tastemaker had on 
 2         that?
 3   A     There is a history in her family of a sister 
 4         and a niece having similar respiratory 
 5         problems.  
 6                MR. McCLAIN:      It's all a 
 7         coincidence.
 8   Q     One of the names mentioned was Miss Gaskins.  
 9         Let me show you Exhibit 50.  
10                (Exhibit Number 50 
11                Marked for identification.)
12   Q     Do you recognize that?
13   A     Letter from Dr. Baughman to Dr. Jim Lockey 
14         with regard the Robin Gaskins, 1996.
15   Q     Was a copy of that sent to Tastemaker?
16   A     Yes, it was, Janet Dees.
17   Q     What information did Tastemaker get on Miss 
18         Gaskins?
19   A     She was exposed to acetaldehyde at very high 
20         concentrations.  She coughed, gasped for air.  
21         Since that day she has had continued 
22         symptoms.  Shortness of breath.
23   Q     A name mentioned to you was Mary Sue McGee.  
24         Showing you Exhibit 51.  
25                (Exhibit Number 51
0220
 1                Marked for identification.)
 2   Q     Do you recognize that?
 3   A     It's a letter from Dr. James Lockey, to S.S. 
 4         Phelps of the Bureau of Workers' Compensation 
 5         dated March 21, 1996.
 6   Q     What information about Miss McGee was in 
 7         there?
 8   A     That one talks about intense exposure to 
 9         acetaldehyde, she was leaning over the top of 
10         a tank and experienced sudden intense 
11         coughing, dyspnea.
12   Q     Another name mentioned was Mr. Wallace, Joey 
13         Wallace.  I will show you what we are going to 
14         mark as Exhibit 52.  
15                (Exhibit Number 52 
16                Marked for identification.)
17   Q     Do you recognize that?
18   A     Yes, that is a surgical pathology report for 
19         Joey Wallace.
20   Q     What information did Tastemaker get on that?
21   A     The pathology microscopic description showed 
22         no evidence of bronchiolitis obliterans.  
23                MR. McCLAIN:      I do not need to 
24         object every time this is not a medical 
25         doctor, she doesn't have the information to 
0221
 1         interpret these reports?  Do I need to do 
 2         that? 
 3                MR. MACE:         Do whatever you need 
 4         to do.  Same response you give me. 
 5                MR. McCLAIN:      She is not a medical 
 6         expert.  I object to any of this.
 7                (Exhibit Number 53
 8                Marked for identification.)
 9   Q     Exhibit 35, ma'am, do you recognize this? 
10   A     Yes, I am reading from a letter from Dr. Ann 
11         Middaugh, to Esly Caldwell, University of 
12         Cincinnati.  
13                MR. McCLAIN:      Object to the form of 
14         the question.  She is not a medical doctor.  
15         She didn't see this at the time.  She is not 
16         being offered as an expert witness.
17   Q     What information did you get on that?
18                MR. McCLAIN:      When?  Today when you 
19         handed it to her?  
20   Q     You can answer, ma'am.
21                MR. McCLAIN:      She didn't have it 
22         back then and you know it.  
23                MR. MACE:         Move to strike 
24         counsel's comments. 
25                MR. McCLAIN:      Did she?  Lacks 
0222
 1         foundation.
 2   Q     You can answer, ma'am.  
 3   A     In reading the letter, it reads that they had 
 4         located his preplacement spirometry, which 
 5         demonstrates the presence of a mild 
 6         obstructive process occurring even at the 
 7         time, his preplacement -- last paragraph 
 8         states overall we do not find evidence of an 
 9         occupational etiology.
10   Q     Is this something you learned back in the mid 
11         '90s, that several of these individuals had 
12         prior exposures that were confounding factors?
13                MR. McCLAIN:      Object to the form of 
14         the question.  Lacks specificity, doesn't 
15         relate to this one.  She clearly didn't have 
16         this document, and you know it.
17   Q     You can answer, ma'am.
18   A     Yes, we did.
19   Q     Another name mentioned to you was Mr. Shea. 
20         Let me how you what we're going to mark as 
21         Exhibit 54.  
22                (Exhibit Number 54
23                Marked for identification.)
24   Q     Do you recognize that?
25   A     Yes, this is the surgical pathology report for 
0223
 1         Gary Shea.
 2   Q     What information did Tastemaker get from that?
 3   A     Document reads it's negative for histological 
 4         features of bronchiolitis obliterans.  
 5                MR. McCLAIN:      Object to the 
 6         document.  That is one sentence out of the  
 7         document.  This witness is not -- the clinical 
 8         diagnosis on the document is bronchiolitis 
 9         obliterans.
10                MR. MACE:         Objection.  
11                MR. McCLAIN:      Misrepresentation, 
12         orchestrated by counsel, with a witness who is 
13         only willing to comply with a 
14         misrepresentation of the records.  I object to 
15         it.  She is not an expert.  This is all 
16         leading.  
17                MR. MACE:         Misstatement, move to 
18         strike counsel's comments. 
19                MR. McCLAIN:      It is not a 
20         misstatement.  The diagnosis on the very 
21         document that this witness read negative for 
22         histologic features for bronchiolitis 
23         obliterans says the diagnosis was 
24         bronchiolitis obliterans.  It's a 
25         misrepresentation.  To say when you ask her 
0224
 1         what does the document say, she reads the only 
 2         sentence in the whole thing that supports your 
 3         ridiculous position.  To suggest that this is 
 4         a witness other than just your mouthpiece, I 
 5         object to it.  It's not proper.
 6                MR. MACE:         You are the one who 
 7         is mischaracterizing the document, counsel.
 8   Q     Could you turn to Exhibit 20.  Exhibit 20 was 
 9         a document that Mr. McClain showed you with 
10         regard to Dr. Lockey and Mr. Walker.  For 
11         completeness, right above what he read to you 
12         regarding the occupational history is there 
13         also reference in the document to his work at 
14         Proctor and Gamble, his work at Grace Chemical 
15         for one year filling hoppers with an unknown 
16         powdered chemical, had frequent chest colds 
17         during the one year employment, did not wear a 
18         respirator?
19   A     That's correct, it reads that.
20   Q     In addition to diacetyl there is also 
21         reference to garlics, toasted and enzymes as 
22         substances that caused Mr. Walker some issues?
23   A     That's true.
24   Q     Is there anywhere in this document that 
25         Mr. McClain showed to you that Dr. Lockey 
0225
 1         concludes that Mr. Walker has any lung disease 
 2         caused by diacetyl?
 3   A     No, I don't see any reference to that.
 4   Q     At any point, any of your discussions with 
 5         Dr. Lockey, did he ever suggest diacetyl as a 
 6         cause of bronchiolitis obliterans or any lung 
 7         disease?
 8   A     No, he did not.
 9   Q     A comment was made about surveying other 
10         plants at Tastemaker, regardless if it was 
11         suggested by Dr. Brooks or anyone, did 
12         Tastemaker look at other plants besides the 
13         Cincinnati plant?
14   A     Yes, we do.
15   Q     What did you find?
16   A     We didn't find any incidences of elevated 
17         respiratory illnesses.
18   Q     You made the comment you didn't believe the 
19         New England Journal of Medicine article 
20         supported the conclusion that Mr. McClain 
21         stated.  What did you mean by that?
22                MR. McCLAIN:      Object to the form of 
23         the question.
24   A     If you read into the article, it states that 
25         there is not a causative -- you can conclude 
0226
 1         it's not a causative agent just because it is 
 2         predominantly in the flavor.  It also stated 
 3         there is over 100 volatile chemicals, as well 
 4         as dust in particular, nuisance dust from 
 5         salt.  
 6                MR. McCLAIN:      Objection, it doesn't 
 7         say that at all, it is a misrepresentation.  
 8         Read it to us. 
 9                MR. MACE:         Move to strike 
10         counsel's comments. 
11                MR. McCLAIN:      Another falsehood by 
12         this witness.
13   Q     Was there reference in the International 
14         Bakers study to dust, nuisance particulates?
15   A     Yes, definitely.
16   Q     In terms of the process flavors department 
17         that was referenced, what were the substances 
18         of concern in the processed flavors?
19   A     Ones I pick out, again building off Talmadge 
20         King's factors were things like the nitrogen 
21         containing and sulfur containing compounds, 
22         and enzymes.
23   Q     Counsel showed you a document from 1993 early 
24         on that referenced diacetyl.  You reference 
25         that diacetyl was on a list of raw materials 
0227
 1         you wanted to look into at the time.  Did you 
 2         look into it?
 3   A     Yes, I did a literature search.
 4   Q     What did you determine regarding diacetyl?  
 5   A     Found that there was no relationship in the 
 6         literature between diacetyl and bronchiolitis 
 7         obliterans.
 8   Q     Counsel was asking you some questions about 
 9         going to FEMA, to use a phrase you asked for 
10         it to be kept secret.  What was it you asked 
11         FEMA not to further communicate?
12   A     We asked them not to disclose our company 
13         name.
14   Q     In terms of the fact there had been some 
15         respiratory issues at the Tastemaker plant, 
16         was that something -- did you disclose that to 
17         FEMA?
18   A     Yes, we did.
19   Q     Did you restrict them in any way from further 
20         disclosing that?
21   A     No.
22   Q     In terms of the number of individuals that 
23         were being looked at, was that anything that 
24         you asked FEMA not to further disclose?
25   A     No, it was not.
0228
 1   Q     In terms of the number of individuals, if you 
 2         look back at Higley Exhibit 5 -- back up a 
 3         step.
 4                Did Dr. Lockey have full information on 
 5         all the individuals that were being looked at 
 6         Tastemaker?
 7                MR. McCLAIN:      Objection.
 8   Q     What is your answer, ma'am?
 9   A     Yes, he did.
10   Q     In this article that counsel showed you which 
11         was Dr. Lockey's abstract, does he refer to 
12         nine or eight individuals?
13   A     No, he refers to five.
14   Q     You were asked some questions, go back to the 
15         FFIDS, Exhibit 26.  
16   A     I can't find it.  Does somebody have a copy?  
17   Q     I have another copy.  I think this is the 
18         copy.  
19   A     Thank you.
20   Q     You were asked some questions about the FFIDS 
21         from Mr. McClain.  Over on page 2, is there a 
22         difference between target organs and systemic 
23         toxicity?
24   A     Yes.  OSHA hazard guidance document talks 
25         about systemic toxicity in things such as 
0229
 1         irritation, corrosion, sensitization.  As 
 2         opposed to target organ which would be things 
 3         like respiratory, liver, etcetera.
 4   Q     This reference to systemic toxicity, is that a 
 5         reference to the lungs or the respiratory 
 6         system?
 7   A     No, this was reference to a systemic toxic 
 8         event.
 9   Q     On the next page, page 3, Mr. McClain asked 
10         you about the inhalation study, acute toxicity 
11         data.  27 milligrams per liter, do you know 
12         what type of parts per million exposure that 
13         would be?
14   A     In the range of 8,000 parts per million.
15   Q     Was there any reference in this information to 
16         the type of lung disease?
17   A     No, there was not.
18   Q     In the mid 1990's, you were shown an MSDS 
19         sheet from in 1994 I think it was, with regard 
20         to a butter flavor.  In that time period was 
21         this process done manually that you were 
22         referring to?
23   A     Yes.
24   Q     If you go to Exhibit 36.  You were asked some 
25         questions about Exhibit 36, these exposure 
0230
 1         control opportunities listed at the bottom of 
 2         the page.  First of all, what year was this 
 3         document, the date of this document?
 4   A     Approximately 2003.
 5   Q     These various exposure control opportunities 
 6         that are listed, are those something unique 
 7         that Tastemaker or Givaudan came up with?
 8                MR. McCLAIN:      Object to the form of 
 9         the question.  
10   A     No, these are more of brainstorming of some of 
11         these exposure control opportunities that are 
12         actually in the NIOSH type documents.
13                MR. MACE:         Nothing further for 
14         you at this time.  Thank you.
15                MR. McCLAIN:      Give us 10 minutes.  
16         I don't want to go through all this crap.
17                VIDEOGRAPHER:      Off the record at 
18         5:12.  
19                (Recess taken.)
20                VIDEOGRAPHER:      Back on the record 
21         at 5:26.  
22                   RECROSS EXAMINATION
23   By Mr. McClain:
24   Q     You were talking to Mr. Mace regarding your 
25         workers and evidence regarding their health 
0231
 1         condition.  Are you aware that the Ohio Bureau 
 2         of Comp already entered judgment that Joey 
 3         Wallace had bronchiolitis obliterans caused by 
 4         his work environment at Givaudan?  
 5                MR. MACE:         Objection, move to 
 6         strike.  
 7   A     No, I did not know that.
 8   Q     Did you know that Robin Gaskins was awarded 
 9         money for bronchiolitis obliterans by the Ohio 
10         Bureau of Workers' Comp?  
11                MR. MACE:         Objection, move to 
12         strike.  
13   A     No, I didn't know that.
14   Q     Or Walt Vaske was adjudged to have 
15         bronchiolitis obliterans caused by his 
16         employment at Givaudan?  
17                MR. MACE:         Objection, move to 
18         strike. 
19   A     No, I don't know that.
20   Q     Mary Sue McGee was awarded money because the 
21         Ohio Bureau of Workers' Comp found she had 
22         bronchiolitis obliterans caused by work at 
23         Givaudan?  
24                MR. MACE:         Objection, move to 
25         strike.  
0232
 1   A     No, I don't know that.
 2   Q     When you told Mr. Mace that the Exhibit 47 
 3         health hazard evaluation report doesn't say 
 4         anything about diacetyl, that is just really 
 5         not true, is it?  
 6                MR. MACE:         Objection, 
 7         mischaracterization of her testimony.  
 8   A     I said it didn't mention it in summary.
 9   Q     Oh, I see.  Again one of these parts of words 
10         deals.  It's in the tables, isn't it, of the 
11         chemicals that are used in the plant?
12   A     I acknowledge that in fact I pointed out it is 
13         in the table is a list of ingredients that 
14         were commonly used in the plant.
15   Q     Although you did a toxicological assessment of 
16         aromatic aldehydes, you did not do one for 
17         diacetyl, did you?
18   A     No, I have not done that group yet.
19   Q     In regard to the evaluation of the very plant 
20         we're discussing -- 
21                MR. McCLAIN:      Counsel, what was the 
22         number of the NIOSH health hazard evaluation 
23         of ConAgra?  
24                MR. MACE:         I believe 46, 
25         counsel.  
0233
 1                MR. McCLAIN:      Thank you.
 2   Q     Would you go over to what NIOSH found in that 
 3         document.  You see where I am?
 4   A     Page III.
 5   Q     Yes.  Air concentrations of diacetyl, a butter 
 6         flavoring chemical known to cause injury to 
 7         airways in animals studies were highest in the 
 8         slurry room.  Other areas in the plant had 
 9         very low levels; do you see that?  
10                MR. MACE:         Objection, move to 
11         strike, form, foundation, hearsay, best 
12         evidence rule.
13                MR. WOODSIDE:     Excuse me, could you 
14         tell me what page you are on? 
15                MR. McCLAIN:      III.  
16   A     Doesn't read that.
17   Q     Air concentrations of diacetyl, a butter 
18         flavoring chemical known to cause injury to 
19         airways in animal studies were highest in the 
20         slurry room; do you see that?  
21                MR. MACE;         Same objection.  Move 
22         to strike.
23   A     Yes, I see that.  That is as it's written 
24         here, yes.
25   Q     The air concentration of diacetyl in the 
0234
 1         slurry room were similar to those of other 
 2         plants where mixers had developed lung 
 3         disease; do you see that?  
 4                MR. MACE:         Objection, move to 
 5         strike.  
 6   A     It is written that way, yes.
 7   Q     Some workers in the slurry room had abnormal 
 8         lung functions on NIOSH tests indicating that 
 9         some of them probably had been affected by 
10         breathing the butter flavor; do you see that?  
11                MR. MACE:         Objection, assumes, 
12         foundation, hearsay, compound, move to 
13         strike.  
14   A     It's written that way, yes.
15   Q     It says abnormal lung function in some 
16         packaging area workers may mean that they were 
17         affected by flavoring chemicals from the 
18         slurry room; do you see that?  
19                MR. MACE:         Objection, form, 
20         speculation, assumes, foundation, move to 
21         strike.  
22   A     Yes, it reads that way.
23   Q     Look over at the next page.  There is a 
24         summary in a black box which is the take away 
25         message that NIOSH wants to impart, right?  
0235
 1                MR. MACE:         Objection, move to 
 2         strike.  Objection to form, characterization.  
 3   A     It is a statement inside the box, yes.
 4   Q     At the ConAgra plant and other microwave 
 5         popcorn plants the pattern of lung function 
 6         test abnormalities in workers who regularly  
 7         mix butter flavorings with heated soybean oil 
 8         implies a risk for development of fixed airway 
 9         obstruction from inhalation of flavoring 
10         related chemicals.  Nearby packaging workers 
11         may also be at risk if flavoring chemicals or 
12         dust in the area of the slurry room 
13         contaminate the air in the packaging area; do 
14         you see that?  
15                MR. MACE:         Objection, form, 
16         foundation, compound, speculation, best 
17         evidence rule, hearsay, move to strike.
18   A     Yes, it reads that way.
19   Q     You began looking at the issue of workers in 
20         your plant in 1993.  Workers in your plant 
21         with -- start again.
22                In 1993 you began to investigate the 
23         issue of whether or not your workers had 
24         bronchiolitis obliterans, what if anything was 
25         causing that disease; am I right?
0236
 1   A     That would be correct.
 2   Q     In 1994, 11 years later, when you left you had 
 3         not determined number one, whether they had 
 4         bronchiolitis obliterans, correct?
 5   A     I left in 2004.
 6   Q     Strike that.
 7                When you left in 2004 you had not 
 8         determined whether or not they had 
 9         bronchiolitis obliterans; am I right, that has 
10         been your testimony?  
11                MR. MACE:         Objection.
12   A     That's correct.
13   Q     You didn't know what had caused any lung 
14         injury to workers; am I right?
15   A     That's correct.
16   Q     After you had been studying it for 11 years, 
17         correct?
18   A     We had been studying the ingredients.  As I 
19         testified earlier, the approach was to look at 
20         an overall health program, look at all the 
21         ingredients.
22   Q     NIOSH began studying the Jasper plant in 1999; 
23         isn't that true?  
24                MR. MACE:         Objection, 
25         foundation.
0237
 1   A     That's correct.
 2   Q     Within 18 months they had reached a conclusion 
 3         that the workers had bronchiolitis obliterans, 
 4         correct?  
 5                MR. MACE:         Objection.
 6   A     I don't agree with that.
 7   Q     They had determined that the disease in the 
 8         plant was caused by exposure to butter 
 9         flavoring chemicals, true?  
10                MR. MACE:         Objection.  
11   A     I don't agree with that.
12   Q     Here is the point.  In 18 months they were 
13         able to reach a conclusion and you looked at 
14         it for 11 years and never were.  Wouldn't it 
15         have been a better idea to call in NIOSH, ask 
16         them to look at the issue in your plant, 
17         rather than go about it in this secretive way 
18         you went about it?  
19                MR. MACE:         Objection, form, 
20         assumes, foundation, compound, argumentative, 
21         characterization.  
22   A     No.  I feel our approach with going to outside 
23         consultants who agreed with our approach was 
24         equally, if not better.
25   Q     Well, let me tell you the practical real world 
0238
 1         effect of going about it the way you did.  
 2                MR. MACE:         Objection.  
 3   A     Do you know my client, Keith Campbell, didn't 
 4         go to work at the ConAgra plant until 1999?  
 5         Are you aware of that? 
 6                MR. MACE:         Objection.
 7   A     No.
 8   Q     That if he had just been warned about this 
 9         possibility, this could have all been 
10         prevented?
11                MR. MACE:         Objection, move to 
12         strike.  
13                MR. WOODSIDE:     Objection.
14   Q     Are you aware of that?  
15                MR. MACE:         Objection, assumes, 
16         form.  
17   A     I can't speculate on that. 
18                MR. McCLAIN:      I have no further 
19         questions.
20                MR. WOODSIDE:     No questions at this 
21         time.  
22                  REDIRECT EXAMINATION
23   By Mr. Mace:
24   Q     You were asked again about this International 
25         Bakers report, Exhibit 36.  Mr. McClain points 
0239
 1         out that among the hundreds of compounds 
 2         listed back in the tables, diacetyl appears.  
 3         Is there anywhere in the report it says either 
 4         of the workers that had lung issues had been 
 5         exposed to diacetyl?
 6   A     No, there was not.
 7   Q     Any statement by NIOSH that diacetyl caused 
 8         either of the workers any type of lung injury?
 9   A     No, there was not.
10   Q     You were asked about Exhibit 46.  I asked you 
11         does it report on the Marion plant.  I read 
12         you the statement in the bullet point on III, 
13         your concentrations known to cause injury to 
14         airways.  In terms of injury to airways caused 
15         by diacetyl, did Hubbs find injury in the 
16         upper or lower airways?
17   A     Hubbs reported injury in the upper airway.
18   Q     In terms of the concentration at which she 
19         found injury, do you recall what those 
20         concentrations were?
21   A     She found injury at concentrations at 
22         approximately 198 parts per million.
23   Q     Next comment that counsel read to you, air 
24         concentrations of diacetyl in the slurry room 
25         were similar to those of other plants; is that 
0240
 1         a true statement with respect to comparing the 
 2         Jasper plant to the Marion plan?
 3   A     Not in looking at the tables of data, no.
 4                MR. MACE:         Nothing further for 
 5         you at this time.  
 6                   RECROSS EXAMINATION
 7   By Mr. McClain:
 8   Q     Dr. Hubbs was a NIOSH investigator, is that 
 9         true?
10   A     Yes.
11   Q     Dr. Canwell and Dr. Coleman who wrote this 
12         summary of the investigation of the ConAgra 
13         plant were also investigators at the Jasper 
14         plant; am I right?
15                 MR. MACE:        Objection, 
16         foundation.  
17   A     I don't know if they were investigators of the 
18         Jasper plant.
19   Q     Get out the New England Journal of Medicine 
20         article if you have any doubts.  
21   A     What exhibit number?  
22   Q     I think 6.  
23                MR. WOODSIDE:     7.
24   Q     See if Coleman and Canwell are listed.
25                MR. MACE:         I'll stipulate they 
0241
 1         are not.
 2   A     Only Coleman is on it.
 3   Q     You think Dr. Coleman doesn't know the results 
 4         of his own study?
 5                MR. MACE:         Objection.
 6   A     Coleman is an article on this paper. 
 7   Q     He's an author on the paper?
 8   A     Yes.
 9   Q     He's an author of this report, Exhibit 46?
10   A     Yes, he is.
11   Q     Who is in a better position to know whether or 
12         not the two studies were comparable, you or 
13         Coleman?  
14                MR. MACE:         Objection.
15   A     I would speculate.  Be speculating to answer 
16         that.  
17                MR. McCLAIN:      No further questions.
18                  REDIRECT EXAMINATION
19   By Mr. Mace: 
20   Q     While you've got the New England Journal 
21         article out counsel is referring to, on page 
22         337, is there a reference to the peak diacetyl 
23         level found in Jasper over 1,000 parts per 
24         million?
25   A     Yes, 1230 parts per million.
0242
 1   Q     Looking back at Exhibit 46, the report on the 
 2         ConAgra Marion plant, looking through all the 
 3         tables of all the findings of air measurements 
 4         that were made, was there anything even 
 5         approaching the 100 parts per million at which 
 6         Dr. Hubbs found no evidence of any injury?
 7                MR. McCLAIN:      Objection.  That is 
 8         false, both statements are false.
 9   A     No, I don't see anything within the range of 
10         diacetyl on this table that approaches what is 
11         in the New England Journal of Medicine.
12   Q     In terms of the data, underlying data, were 
13         the exposures that are being reported by NIOSH 
14         at the Marion plant similar to the exposures 
15         that were found at the Jasper plant?
16                MR. McCLAIN:      Objection, lacks 
17         foundation.  
18   A     No, they appear to be a magnitude of 
19         differences.
20   Q     Several orders of magnitude?
21   A     Yes.
22                MR. MACE:         Nothing further at 
23         this time.  
24                   RECROSS EXAMINATION
25   By Mr. McClain:
0243
 1   Q     The New England Journal of Medicine article 
 2         refers to head space values, isn't that true?  
 3         What he called peak values, right?  1,000 
 4         parts per million is head space value?
 5   A     I would have to look at -- I can't tell if 
 6         they are using NIOSH 500.  Page 337 I don't 
 7         believe they stipulate head space.
 8   Q     You just don't know?
 9   A     Don't know.  
10                MR. McCLAIN:       No further 
11         questions.
12                VIDEOGRAPHER:      We're off the record 
13         at 5:41. 
14                (Deposition concluded at 5:41 p.m.)
15                (Signature not waived.)
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0244
 1       I have read the foregoing transcript from page 1
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                                    _________________
20                                  Nancy Higley
21         Subscribed and sworn to before me this ____day
22   of ____________, 2006.
23                                      
                                    ___________________
24                                  Notary Public
25         My commission expires:_______________________.
0245
 1   State of Ohio,        )
                           ) SS:  CERTIFICATE
 2   County of Cuyahoga,   )
 3         I, Constance Versagi, Court Reporter and 
 4   Notary Public in and for the State of Ohio, duly 
 5   commissioned and qualified, do hereby certify that 
 6   the within named witness, Nancy Higley, was by me 
 7   first duly sworn to testify the truth, the whole 
 8   truth, and nothing but the truth in the cause 
 9   aforesaid; that the testimony then given by her was 
10   by me reduced to stenotypy/computer in the presence 
11   of said witness, afterward transcribed, and that the 
12   foregoing is a true and correct transcript of the 
13   testimony so given by her as aforesaid.
14         I do further certify that this deposition was 
15   taken at the time and place in the foregoing caption 
16   specified, and was completed without adjournment.
17         I do further certify that I am not a relative, 
18   counsel, or attorney of either party, or otherwise 
19   interested in the event of this action.
20         IN WITNESS WHEREOF, I have hereunto set my 
21   hand and affixed my seal of office at Cleveland, 
22   Ohio, on this 17th day of April, 2006.
23   
           __________________________________________ 
24         Constance Versagi, Court Reporter and                 
           Notary Public in and for the State of Ohio.
25         My Commission expires January 14, 2008.
0246
 1   State of Ohio,        )
                           ) SS:  CERTIFICATE
 2   County of Cuyahoga,   )
 3         I, Steven Mengelkamp, Video Technician do 
 4   hereby certify that I have accurately taken the 
 5   videotape recording of the deposition of 
 6   Nancy Higley, in the cause aforesaid.  
 7         I do further certify that this deposition was 
 8   taken at the offices of Squire, Sanders, 4900 Key 
 9   Tower, Cleveland, Ohio, on Thursday, April 6, 2006, 
10   commencing at 9:41 a.m. and was completed without 
11   adjournment; and further certify that the total 
12   recorded time was 5 hours and 22 minutes, and that 
13   no alterations, additions and deletions were made 
14   thereto.
15         IN WITNESS WHEREOF, I have hereunto set my 
16   hand and affixed my seal of office at Cleveland, 
17   Ohio, on this 17th day of April, 2006.
18   
19   
           __________________________________________ 
20         Steven Mengelkamp, Video Technician and                 
           Notary Public in and for the State of Ohio.
21         My Commission expires February 12, 2011.
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