0001
                  COURT OF COMMON PLEAS
 2                  HAMILTON COUNTY, OHIO
 3                         -  -  -
 4   TIMOTHY AND ANITA ARTHUR,   : 
 5   ET AL.,                     : 
 6                 PLAINTIFFS,   :
 7    -VS-                       : CASE NO. A0307157
 8   INTERNATIONAL FLAVORS &     : 
 9   FRAGRANCES, INC., ET AL.,   : 
10                 DEFENDANTS.   :
11                           AND
12                 IN THE CIRCUIT COURT OF
13                 JASPER COUNTY, MISSOURI
14                         -  -  -
15   RAFAELA AND CARLOS          :  
16   BENAVIDES, ET AL.,          :
17                 PLAINTIFFS,   : 
18    -VS-                       : CASE NO. 01CV683025
19   INTERNATIONAL FLAVORS &     : (1 - 30) 
20   FRAGRANCES, INC., ET AL.,   : 
21                 DEFENDANTS.   : 
22                         -  -  -
23            Deposition of JAMES EDWARD LOCKE, MD, a 
24   witness herein, taken by the plaintiffs as upon 
0002
 1   direct examination pursuant to the Ohio Rules of 
 2   Civil Procedure and pursuant to Notice to Take 
 3   Deposition and stipulations hereinafter set forth 
 4   by teleconference with Steven Ward being present 
 5   in Springfield, Missouri, and all other parties 
 6   being present at the offices of Spangler Reporting 
 7   Services, Inc., 120 East Fourth Street, Suite 390, 
 8   Cincinnati, Ohio, at 10:46 a.m. EST, on Tuesday, 
 9   November 16, 2004, before Lisa Conley, RMR, CRR, 
10   CCP, a notary public within and for the State of 
11   Ohio, and by audio/visual means by Marlene Dori, 
12   CLVS.
13                         -  -  -
14   
15   
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19   
20   
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22   
23   
24   
0003
 1   APPEARANCES:
 2    On behalf of the Plaintiffs: 
 3            Kenneth B. McClain, Esq.
 4                 and
 5            Steven Crick, Esq.
 6                  of
 7            Humphrey, Farrington, McClain & Edgar
 8            221 West Lexinigton
 9            Suite 400
10            Independence, Missouri  64050
11                 and
12            Mark Wintering, Esq.
13                 of
14            Robert E. Sweeney Company, LPA
15            Suite 1500 Illumination Building
16            55 Public Square
17            Cleveland, Ohio  44113        
18    On behalf of the Defendant, Bush Boake Allen,
19    Inc.:  
20            Frank C. Woodside, III, Esq.
21                of
22            Dinsmore & Shohl, LLP
23            1900 Chemed Center
24            255 East Fifth Street
0004
 1            Cincinnati, Ohio  45202
 2    On behalf of the Defendant, Givaudan Flavors
 3    Corporation:
 4            Damond Mace, Esq.
 5                 of
 6            Squire, Sanders & Dempsey, LLP
 7            4900 Key Tower
 8            127 Public Square
 9            Cleveland, Ohio  44115
10    On behalf of the Defendant, International Flavors
11    & Fragrances, Inc.:
12            Steven E. Ward, Esq. (By phone)
13                 of
14            Turner, Reid, Duncan, Loomer & Patton, PC
15            PO Box 4043
16            Springfield, Missouri  65808
17    also present:
18            Dave Eagleman
19                         -  -  -
20                 S T I P U L A T I O N S
21            It is stipulated by and among counsel for 
22   the respective parties that the deposition of 
23   JAMES EDWARD LOCKE, MD, a witness herein, may be 
24   taken as upon direct examination pursuant to the 
0005
 1   Ohio Rules of Civil Procedure, and pursuant to 
 2   Notice to Take Deposition; that the deposition may 
 3   be taken in stenotypy by the notary public-court 
 4   reporter and transcribed by her out of the 
 5   presence of the witness; and that the submission 
 6   of the transcribed deposition to the witness for 
 7   his examination and signature is expressly waived.  
 8                         -  -  -
 9                        I N D E X
10   WITNESS                  DIRECT  CROSS  REDIRECT
11   James Edward Locke, MD     12     156     224
12                                     182
13                                     209
14                            RECROSS  FURTHER DIRECT
15                              243         256
16                              256
17                            FURTHER CROSS
18                                 258
19                            VOIRE DIRE
20                                 181
21                         -  -  -
22                     E X H I B I T S
23   DEPOSITION EXHIBITS                         MARKED
24   No. 1, a copy of a multi-page "Curriculum      13 
0006
 1       Vitae."
 2   No. 2, a copy of a 1-page letter dated         20
 3       June 19, 2003, to Gregory Mitchell from 
 4       James Lockey.
 5   No. 3, a copy of a multi-page letter dated     25
 6       June 13, 2002, to Susan Borchers from 
 7       James Lockey, with attachments.
 8   No. 4, a copy of a multi-page article,         27
 9       "Clinical Bronchiolitis Obliterans in 
10       workers at a Microwave Popcorn Plant, 
11       August 1, 2002.
12   No. 5, a copy of a multi-page article,         36
13      "Necrosis of Nasal and Airway Epithelium 
14      in Rats Inhaling Vapors of Artificial 
15      Butter Flavoring."
16   No. 6, a copy of a 4-page "The                 37
17       Toxicologist," March 2004.
18   No. 7, a copy of a 1-page letter dated         39
19       October 15, 2001, to Anne Apl from 
20       Frosch, with attachments.
21   No. 8, a copy of a multi-page "Respiratory     41
22       Safety in the Flavor & Fragrance 
23       Workplace," FEMA 01244 through 1440.
24   No. 9, a copy of a multi-page "Respiratory     50
0007
 1       Safety in the Flavor and Fragrance 
 2       Workplace," FEMA 01604 through 1731.
 3   No. 10, a copy of a 1-page "2002 Abstract      55
 4       Form."
 5   No. 11, a copy of a 4-page "Fax Cover          60
 6       Sheet," dated August 3, 1995, to Janice 
 7       Dees from Roy McKay.
 8   No. 12, a copy of a 4-page letter dated        63
 9       July 10, 1995, to James Lockey from Karen
10       Duros.
11   No. 13, a copy of a multi-page, handwritten    66
12       document dated 7/26/95.
13   No. 14, a copy of a multi-page document        69
14       entitled "Tastemaker Site Visit:  
15       August 4, 1995."
16   No. 15, a copy of a 1-page "Chemicals          72
17       Purchased Per Year (Pounds)."
18   No. 16, a copy of a 3-page, handwritten        73
19       document dated 7/6/95.
20   No. 17, a copy of a multi-page "Project        77
21       Team Meeting 14 September 95."
22   No. 18, a copy of a 5-page "Raw Material       82
23       Sensitivity List."
24   No. 19, a copy of a multi-page,                84
0008
 1       handwritten document dated 12/13/95.
 2   No. 20, a copy of a multi-page "EHS            87
 3       Project Specific Action Items 
 4       Confidential."
 5   No. 21, a copy of a multi-page,                96
 6       handwritten document, "Draft 
 7       Presentation Safety Meeting, 8 Feb. 96."
 8   No. 22, a copy of a multi-page "Respirator    101
 9       Fit Testing & Training Observations."
10   No. 23, a copy of a 3-page document, with a   102
11       1-page "Facsimile Cover Sheet," dated
12       September 26, 1996, to James Lockey from 
13       Karen Duros.
14   No. 24, a copy of a 4-page, handwritten       102
15       document reflecting "FEMA."
16   No. 25, a copy of a 4-page, handwritten       119
17       document reflecting "John + Dan."
18   No. 26, a copy of a multi-page memo dated      131
19       March 18, 1993, to Safety Committee from 
20       Jack Gillen, Jr.
21   No. 27, a copy of a 1-page letter dated        140
22       July 16, 2001, to James Lockey from 
23       Kathleen Kreiss.
24   No. 28, a copy of a 2-page "Workshop           141
0009
 1       Agenda."
 2   No. 29, a copy of a 1-page document           148
 3       beginning "On 5/17/02."
 4   No. 30, a copy of a 2-page letter dated       150
 5       June 24, 2002, to James Lockey from 
 6       Frederick King.
 7   No. 31, a copy of 1 page of 3 e-mails, the    152
 8       first being dated May 22, 2002, to Connie
 9       Thrasher from Celia Vimont.
10   No. 32, a copy of 2 pages of e-mails, the     152
11       first being dated May 23, 2002, to Connie
12       Thrasher from Jim.
13   No. 33, a copy of a 1-page memo dated         155
14       February 10, 2003, from James Lockey.
15   No. 34, a copy of a 1-page "ATS Daily         157
16       Bulletin," FEMA 01440.
17   No. 35, a copy of a 1-page, 2-sided document  172
18       beginning "This is to present a method
19       Tastemaker."
20   No. 36, a copy of a multi-page, 2-sided       176
21       NIOSH "Health Hazard Evaluation Report."
22   No. 37, a copy of a 1-page "Exercise          200
23       Myocardial Perfusion Imaging Report," 
24       dated 3-25-02.
0010
 1   No. 38, a copy of a 1-page "CT Scan," dated   201
 2       7/18/2002.
 3   No. 39, a copy of a 1-page memo dated         206
 4       9/14/01 to Dr. Lockey from Brad Mutchler.
 5   No. 40, a copy of a 1-page "Privilege Log     238
 6       of Givaudan."
 7   
 8   
 9   
10   
11   
12   
13   
14   
15   
16   
17   
18   
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22   
23   
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0011
 1                  THE VIDEOGRAPHER:  Today is 
 2   November the 16th, 2004.  The time is now 11:47 -- 
 3   10:46, my bad.  This is in the matter of Timothy 
 4   and Anita Arthur, et al., versus International 
 5   Flavors & Fragrances, Inc., et al.  This is in the 
 6   Court of Common Pleas, Hamilton County, Ohio, Case 
 7   No. A 0307157.  This is also cross-noticed in 
 8   the -- 
 9                  MR. CRICK:  Benavides. 
10                  THE VIDEOGRAPHER:  -- Benavides 
11   versus International Flavors & Fragrance, Inc., et 
12   al., and that's in Jasper County, Missouri, 
13   01CV683025, 130.  We're in Cincinnati, Ohio.  I am 
14   Marlene Dori, Certified Legal Videographer.  The 
15   court reporter is Lisa Conley, Registered Court 
16   Reporter, CMR.  
17                 At this time I will have counsel 
18   introduce themselves, and after that we will have 
19   the witness sworn in by the court reporter.  You 
20   may begin.  
21                  MR. MCCLAIN:  On behalf of the 
22   Plaintiff, Kenneth McClain, Steven Crick, and Mark 
23   Wintering.
24                  MR. WOODSIDE:  In the Arthur case, 
0012
 1   this is Frank Woodside of Dinsmore & Shohl in 
 2   Cincinnati on behalf of International Flavors & 
 3   Fragrances and on behalf of Bush Boake Allen.  In 
 4   the Benavides case, Frank Woodside appearing on 
 5   behalf of Bush Boake Allen.  And Steve Ward of 
 6   Turner Reid in Springfield, Missouri, appearing on 
 7   behalf -- on the phone appearing on behalf of 
 8   International Flavors & Fragrances.  
 9                  MR. MACE:  In the Arthur case 
10   Damond Mace on behalf of Givaudan Flavors.        
11   (Witness sworn.)
12                 JAMES EDWARD LOCKE, MD
13   of lawful age, a witness herein, being first duly 
14   sworn as hereinafter certified, was examined and 
15   deposed as follows:
16                   DIRECT EXAMINATION
17   BY MR. MCCLAIN:   
18            Q.   Dr. Lockey, would you please 
19   introduce yourself.  
20            A.   Dr. James Edward Lockey, University 
21   of Cincinnati Medical Center. 
22            Q.   And, Dr. Lockey, could you describe 
23   your medical specialitization for the jury, 
24   please.  
0013
 1            A.   I specialize in occupational 
 2   pulmonary disorders. 
 3            Q.   Dr. Lockey, I have a copy of a 
 4   curriculum vitae that we've obtained, and I don't 
 5   know whether it's your most current one or not, 
 6   but let's mark that as Exhibit 1, if we could.  
 7   Could you give it to the reporter, and that's a 
 8   copy for you to review, Doctor.
 9   (Deposition Exhibit No. 1 was marked for 
10   identification.) 
11            Q.   Is this a fairly current version of 
12   your CV? 
13            A.   Yes. 
14            Q.   Dr. Lockey, we're here to discuss 
15   some of your work in regard to the disease 
16   bronchiolitis obliterans particularly as it 
17   relates to the flavor industry.  Have you done 
18   such work? 
19            A.   Yes. 
20            Q.   In this CV that we have marked as 
21   Exhibit 1, it indicates that you are board 
22   certified in internal medicine; is that right? 
23            A.   That's correct. 
24            Q.   And you have a subspecialty in 
0014
 1   pulmonary disease, and you've taken the board 
 2   subspecialty exam for that subspecialty? 
 3            A.   That's correct. 
 4            Q.   And also for occupational medicine? 
 5            A.   Yes. 
 6            Q.   You're also what is called a "B" 
 7   reader, and you've been certified on two 
 8   occasions; is that right? 
 9            A.   Yes, perhaps more than two 
10   occasions, but yes. 
11            Q.   Now, Doctor, there's a number of 
12   publications that are listed on your CV, and I've 
13   just noted some of them.  
14                 You've written on the subject of 
15   occupational asthma; is that right? 
16            A.   Yes. 
17            Q.   And, Doctor, you have written on 
18   bronchiolitis obliterans? 
19            A.   Yes. 
20            Q.   And presented papers on both of 
21   those subjects as well? 
22            A.   That's correct. 
23            Q.   Doctor, you have been invited to 
24   speak on the issue of bronchiolitis obliterans by 
0015
 1   NIOSH; is that correct? 
 2            A.   Yes. 
 3            Q.   What is NIOSH? 
 4            A.   National Institute of Occupational 
 5   Safety and Health. 
 6            Q.   And at NIOSH you presented findings 
 7   regarding bronchiolitis obliterans in the 
 8   flavoring industry; is that correct? 
 9            A.   That's correct. 
10            Q.   And, Doctor, you presented an 
11   abstract of a paper to the American Thoracic 
12   Society as well regarding your findings of 
13   bronchiolitis obliterans in the flavoring 
14   industry; is that correct? 
15            A.   Yes. 
16            Q.   And that was in 2002 --
17            A.   Yes. 
18            Q.   -- is that right?  
19                 And the plant that you studied was a 
20   plant that is -- was originally called the Taste 
21   Masters plant? 
22            A.   Yes. 
23            Q.   And they are now owned by Givaudan 
24   Flavors, Inc.? 
0016
 1            A.   Yes. 
 2            Q.   And at that plant you found five 
 3   cases of bronchiolitis obliterans that you 
 4   attributed to being caused by working with 
 5   flavoring chemicals; is that correct? 
 6            A.   That's correct.  
 7                  MR. WOODSIDE:  Object to the form 
 8   of the question.  Move to strike.  The reason I 
 9   object, Mr. McClain, is because it's overly broad, 
10   vague, and ambiguous, in that you've indicated and 
11   asked the question whether it was posed to 
12   chemicals in general, so object.  
13            Q.   Just to clarify, Doctor, we're going 
14   to get into your specific findings, and what you 
15   examined, and how you came to your conclusions, 
16   but my question -- my question as phrased was 
17   correct; am I right?  
18            A.   Yes.  
19                  MR. MACE:  Let me also get an 
20   objection on the record to the leading nature of 
21   all of Counsel's questions.  Covered some 
22   preliminary matters, we don't object to that, but 
23   as we get into the specifics, he should take the 
24   witness on direct.
0017
 1                  MR. MCCLAIN:  Well, my 
 2   understanding was, is that you were claiming 
 3   privilege in regard to this witness, that he was a 
 4   consultant to your company; is that not true?  
 5                  MR. MACE:  That's not true.  We 
 6   withheld one document because of attorney-client 
 7   privilege, but he's here to testify as a fact 
 8   witness with respect to his investigation.
 9                  MR. MCCLAIN:  Well, how in the 
10   world, if he's not your witness, do you get to 
11   claim privilege on anything in his files?  
12                  MR. MACE:  Well, we can cover that 
13   off the record, but he had several different 
14   tasks, one was to work on occupational health, and 
15   another was to do some specific consultation.
16                  MR. MCCLAIN:  Just for the record, 
17   you get to pick and choose when he's your witness 
18   and when he's not?  
19                  MR. MACE:  Well, Counsel, you know 
20   that we can resolve this with the Court.  We're 
21   not going to debate it here.  
22                  MR. MCCLAIN:  Well, I'm not going 
23   to debate it because I want to know whether I get 
24   to lead the witness or not, and I'm not going to 
0018
 1   be in jeopardy in regard to your position.  If 
 2   he's not your witness, I want the document now.
 3                  MR. MACE:  You're not allowed to 
 4   lead the witness.  You have to take the witness on 
 5   direct.
 6                  MR. MCCLAIN:  No, I don't, not if 
 7   he's your witness and you claim privilege 
 8   regarding his materials.
 9                  MR. MACE:  He's not my witness, and 
10   I haven't claimed privilege with respect to his 
11   materials.
12                  MR. MCCLAIN:  Then I want the 
13   document now.
14                  MR. MACE:  All right.  We can 
15   resolve that.  We assert an objection as to one 
16   document.
17                  MR. MCCLAIN:  Yes, sir.  
18                  MR. WOODSIDE:  I don't think 
19   there's ever been any claim by me or you that Dr. 
20   Lockey in any form, shape or manner is my witness; 
21   therefore, I'm going to object to the leading 
22   nature of the question.  
23                 In addition, it would be 
24   satisfactory if we generally don't clutter up the 
0019
 1   record, and so if one defendant objects, it would 
 2   be good for most defendants, unless there are 
 3   specific reasons why each one should separately 
 4   object.  
 5                  MR. MCCLAIN:  Yes, that's fine.  
 6   BY MR. MCCLAIN:  
 7            Q.   All right, Dr. Lockey, I'm sorry to 
 8   involve you in all of that.  
 9                  MR. WARD:  Just while we're kind of 
10   interrupting things here for a second, I think I 
11   heard Ken -- or Frank just indicate that it would 
12   be okay for one objection by one defendant is good 
13   for all; is that what the objection was?  
14                  MR. WOODSIDE:  We agreed to that, 
15   Steve.  
16                  MR. WARD:  That's what I want to 
17   make sure of, thank you.  
18                  MR. MCCLAIN:  So now you can go 
19   back to sleep.  
20                  MR. WARD:  Yes, thank you. 
21                  MR. MCCLAIN:  All right.  Dr. 
22   Lockey, let's come back.  Let me remember where we 
23   were with the last question.  Was the last 
24   question relating to his findings in the flavor 
0020
 1   industry?  
 2   (Record read back by the court reporter.)
 3   BY MR. MCCLAIN: 
 4            Q.   Dr. Lockey, I represent a man by the 
 5   name of Keith Campbell; have you seen him, Doctor, 
 6   in a medical capacity? 
 7            A.   Yes. 
 8            Q.   And he works at the ConAgra plant or 
 9   did work at the ConAgra plant in Marion, Ohio; are 
10   you aware of that? 
11            A.   Yes. 
12            Q.   Let me show you what we'll mark as 
13   Exhibit 2. 
14   (Deposition Exhibit No. 2 was marked for 
15   identification.)
16            A.   Yes. 
17            Q.   Are you familiar with that -- Is 
18   this -- Are these -- Let's explain what's in 
19   Exhibit 2.  These are two reports that you 
20   generated regarding an independent medical exam of 
21   Keith Campbell; is that correct, Doctor? 
22            A.   That's correct. 
23            Q.   Would you describe for the jury what 
24   an independent medical exam is.  
0021
 1            A.   I was asked to see the patient to 
 2   determine whether there was a potential 
 3   occupational disease or not.  That involves 
 4   history, physical examination, review of outside 
 5   medical records, and putting together a 
 6   cause/effect relationship, if in fact one exists. 
 7            Q.   And, Doctor, you evaluated his case 
 8   on more than one occasion; is that correct? 
 9            A.   Yes.  I guess I generated two 
10   letters, one of June 13th and one of -- June 13th 
11   of 2002 and one of June 19th of 2003. 
12            Q.   And he had been seen by other 
13   doctors both before you saw him and subsequently; 
14   is that correct --
15            A.   Yes. 
16            Q.   -- based upon your review of your 
17   letters? 
18            A.   That's correct. 
19            Q.   And the doctors that had seen him 
20   had diagnosed him with this disease, bronchiolitis 
21   obliterans; is that right?
22                  MR. WOODSIDE:  Object to the 
23   leading nature.
24            A.   That was my diagnosis. 
0022
 1            Q.   Doctor, let me just ask you, what 
 2   was your diagnosis of Mr. Campbell? 
 3            A.   It was bronchiolitis obliterans. 
 4            Q.   Can you tell the jury what 
 5   bronchiolitis obliterans is? 
 6            A.   Bronchiolitis obliterans is a 
 7   disease that affects the very small airways to the 
 8   lung.  When an individual has some type of 
 9   inflammatory response involving the small airways, 
10   in certain susceptible individuals, there's a 
11   proliferation of fibrous tissue that closes off 
12   the small airways.  We call that constricted 
13   bronchiolitis or bronchiolitis obliterans. 
14            Q.   And it's your medical opinion to a 
15   reasonable degree of medical certainty that 
16   Mr. Campbell has this disease? 
17            A.   Yes. 
18            Q.   And, Doctor, in your letters you 
19   ascribe a cause to his disease; is that correct? 
20            A.   Yes, I do. 
21            Q.   And what was his job classification? 
22            A.   He worked in the microwave popcorn 
23   production industry. 
24            Q.   And was he a mixer? 
0023
 1            A.   I have to go back and look to see.  
 2   Hold on a second.  Yes, he was a mixer. 
 3            Q.   And, Doctor, was it your 
 4   understanding that one of the things that he mixed 
 5   was butter flavor for this microwave popcorn?
 6                  MR. WOODSIDE:  Objection, leading.  
 7                  MR. WARD:  Same objection.  
 8                  MR. MACE:  Objection.  
 9            A.   Yes.  He said in the mixing room 
10   they used a number of different ingredients, 
11   including liquid butter --
12            Q.   Now, Doctor -- 
13            A.   -- and butter powder, whatever that 
14   is.  
15            Q.   And, Doctor, based upon your 
16   previous investigations, are you familiar that 
17   butter flavor contains a chemical called diacetyl, 
18   among other chemicals? 
19            A.   Yes. 
20            Q.   And, Doctor, has that chemical now 
21   been studied by scientists such as yourself to 
22   determine whether or not it can cause lung damage?
23                  MR. MACE:  Objection, compound.  
24                  MR. WOODSIDE:  Objection, leading.  
0024
 1            A.   In particularly, the NIOSH 
 2   scientists have looked at this chemical in detail 
 3   and felt that it's related to the occurrence of 
 4   bronchiolitis obliterans in this particular 
 5   industry. 
 6            Q.   In the microwave popcorn industry? 
 7            A.   That's correct. 
 8            Q.   And, Doctor, based upon your 
 9   consultation with the Flavor Master Company, which 
10   is now owned by Givaudan Roure, are you aware that 
11   they make butter flavor? 
12            A.   Yes, they do make butter flavor. 
13            Q.   And does their butter flavor contain 
14   diacetyl? 
15            A.   My assumption is it does.  I don't 
16   recall specifically, but my assumption would be 
17   that it does. 
18            Q.   We're going to look back at some 
19   documents that you generated back when you were 
20   consulting for Givaudan, TasteMasters, and see if 
21   that refreshes your recollection specifically, but 
22   your general recollection is fine at this point.  
23                 And is it your general recollection 
24   that they do utilize diacetyl in their own plants? 
0025
 1            A.   Yes.
 2                  MR. WOODSIDE:  Can I make a 
 3   suggestion.  This is just technical.  It really 
 4   has two reports.  Just label -- The first one has 
 5   been labeled Exhibit 2, the June 19th.  Could we 
 6   label the June 13th one 3?
 7                  MR. MCCLAIN:  That would be fine.  
 8   We could do it that way if you'd like.
 9                  MR. WARD:  Are you marking them 
10   different?  
11                  MR. MCCLAIN:  We're simply marking 
12   the two separate reports, one is 2 and the other 
13   is 3.  
14                  MR. WARD:  Okay.  Thank you. 
15   (Deposition Exhibit No. 3 was marked for 
16   identification.) 
17   BY MR. MCCLAIN: 
18            Q.   Now, Doctor, you make reference in 
19   your second letter, Exhibit 2, to a report in the 
20   medical literature.  Were you referring to the 
21   "New England Journal of Medicine" publications 
22   that were published in 2001 by the scientists from 
23   NIOSH? 
24            A.   Yes. 
0026
 1            Q.   All right.  We're going to come to 
 2   those in a minute.  But those reports indicated 
 3   that a group of workers in Jasper, Missouri, were 
 4   diagnosed with bronchiolitis obliterans that the 
 5   scientists from NIOSH attributed to exposure to 
 6   butter flavor; is that correct?
 7                  MR. MACE:  Objection, hearsay.  
 8   Objection, leading.
 9                  MR. WOODSIDE:  Same objection.
10                  MR. WARD:  Same objection.
11            A.   Yes. 
12            Q.   Doctor, let me ask it a different 
13   way.  Doctor, what publications were you referring 
14   to, and what findings in those publications did 
15   you find supportive of your diagnosis of Keith 
16   Campbell's bronchiolitis obliterans disease?
17                  MR. MACE:  Objection, calls for 
18   hearsay.
19                  MR. WOODSIDE:  Same.  
20            A.   The publications mainly by Kay 
21   Kreiss in relation to the epidemic of 
22   bronchiolitis obliterans in the popcorn industry. 
23            Q.   Doctor, let me show you what we'll 
24   mark as Exhibit 4.  
0027
 1            A.   I thought it was 2002. 
 2            Q.   August 1st, 2002, you're right. 
 3   (Deposition Exhibit No. 4 was marked for 
 4   identification.) 
 5            Q.   Doctor, first of all, is this the 
 6   article that you were referring to in Exhibit 2 
 7   and that you referred to in testimony? 
 8            A.   That's correct. 
 9            Q.   Would you please read its title into 
10   the record.  
11            A.   "Clinical Bronchiolitis Obliterans 
12   in Workers at a Microwave Popcorn Plant." 
13            Q.   And who is the lead author on this 
14   paper? 
15            A.   Kathleen Kreiss. 
16            Q.   Do you know Dr. Kreiss? 
17            A.   Yes, I do. 
18            Q.   Do you consider her an expert in the 
19   field? 
20            A.   Yes. 
21            Q.   And someone -- Have you consulted 
22   with her on this very issue? 
23            A.   Yes. 
24            Q.   And, in fact, does she cite your 
0028
 1   previous findings in regard to the workers at the 
 2   TasteMaster/Givaudan plant in support of her 
 3   conclusions?
 4                  MR. MACE:  Objection to the slash 
 5   Givaudan.  
 6            A.   Yes, she does. 
 7            Q.   And did she do that with your 
 8   approval? 
 9            A.   Yes. 
10            Q.   Doctor, let me ask you, how did she 
11   become aware of your work from the Givaudan, 
12   TasteMaster plant? 
13            A.   We're an academic institution.  We 
14   have residents, we have medical students, we have 
15   graduate students who work on various projects.  
16   We have NIOSH Fellows who rotate through our 
17   centers.  So when we discuss situations, we 
18   present case conferences and review of the 
19   research that's ongoing, so, most likely, NIOSH 
20   became aware through that avenue. 
21            Q.   So it wasn't a formal communication 
22   that you had with NIOSH about your work; it was 
23   more of it was through the grapevine, if we were 
24   describing the process as a layman? 
0029
 1            A.   Probably. 
 2            Q.   Let's look at the conclusions of 
 3   this paper just for a moment, Doctor.  From the 
 4   first page, the abstract, it says:  "In May of 
 5   2000, eight persons who had formerly worked in a 
 6   microwave popcorn production plant were reported 
 7   to have severe bronchiolitis obliterans.  No 
 8   recognized cause was identified in the plant; 
 9   therefore, we medically evaluated current 
10   employees and assessed their occupational 
11   exposures."  Did I read that accurately? 
12            A.   Yes, you did. 
13            Q.   Now, Doctor, you described 
14   previously an epidemic of bronchiolitis obliterans 
15   in the microwave popcorn industry.  What did you 
16   mean by that; what is an epidemic? 
17            A.   I'm sorry.  Oh, you mean when I was 
18   answering one of your questions?
19            Q.   Yes.  
20            A.   A much higher prevalence or much 
21   higher instance of abnormalities than anyone would 
22   expect based on a normal background population.  
23   In this case, a higher, much higher, instance of 
24   bronchiolitis obliterans than you would expect in 
0030
 1   a similar facility based on background rates. 
 2            Q.   And was that the situation in the 
 3   Jasper popcorn plant? 
 4            A.   Apparently.  
 5                  MR. MACE:  Objection, calls for 
 6   hearsay.
 7                  MR. WOODSIDE:  Objection, hearsay, 
 8   no foundation.
 9                  MR. WARD:  Object on same basis. 
10            Q.   Well, let me rephrase it.  Doctor, 
11   based upon Dr. Kreiss' study and your medical 
12   opinion, was there an epidemic at the Jasper 
13   popcorn plant?
14                  MR. MACE:  Objection, calls for 
15   hearsay.
16                  MR. WOODSIDE:  Same objection.
17                  MR. WARD:  Objection, speculation.  
18            A.   There was a clustering of cases in 
19   that facility which needed attention. 
20            Q.   Read down at the conclusions, 
21   Doctor, it says:  "The excess rates of lung 
22   disease" -- 
23                  MR. MACE:  Objection to form, 
24   reading from document, hearsay.
0031
 1                  MR. WOODSIDE:  Same objection. 
 2            Q.   "The excess rates of lung disease 
 3   and lung function abnormalities and the relation 
 4   between exposures and outcomes in this working 
 5   population indicate that they probably had 
 6   occupational bronchiolitis obliterans caused by 
 7   the inhalation of volatile butter flavoring 
 8   ingredients."  Did I read that accurately?
 9                  MR. MACE:  Objection, hearsay.  
10   Move to strike.
11                  MR. WOODSIDE:  Same.
12                  MR. WARD:  Same objection.
13            A.   Yes, you did.
14            Q.   Go ahead and answer.  Doctor, did I 
15   read that accurately? 
16            A.   Yes, you did. 
17            Q.   And, Doctor, is it your medical 
18   opinion that that conclusion is supported by the 
19   data presented in this paper and in the seminars 
20   you have participated in?
21                  MR. MACE:  Objection, lack of 
22   foundation.  
23                  MR. WARD:  Objection, lack of 
24   foundation.  
0032
 1            A.   Yes. 
 2            Q.   Doctor, let's make sure that we have 
 3   the foundation in the record.  Have you reviewed 
 4   the paper that's in front of us? 
 5            A.   Yes, I have. 
 6            Q.   On more than one occasion? 
 7            A.   Yes. 
 8            Q.   Doctor, on occasion you have served 
 9   as a reviewer of papers submitted to the "New 
10   England Journal of Medicine"; is that correct? 
11            A.   That's correct. 
12            Q.   Doctor, is there a more prestigious 
13   medical journal in the United States than the "New 
14   England Journal of Medicine"? 
15            A.   No. 
16            Q.   Doctor, is the quality of their work 
17   generally very good? 
18            A.   The quality of the work that the 
19   "New England Journal" publishes is excellent, yes. 
20            Q.   And, Doctor, is it reviewed by 
21   experts in the field before it is published? 
22            A.   Yes. 
23            Q.   Is that a process called peer 
24   review? 
0033
 1            A.   It is. 
 2            Q.   And do you know whether or not this 
 3   article was peer reviewed? 
 4            A.   I don't know of any article that's 
 5   published in the "New England Journal" that's not 
 6   peer reviewed. 
 7            Q.   And, Doctor, were you involved in 
 8   the initial review of the work that NIOSH prepared 
 9   in preparation for the presentation of this 
10   article to the "New England Journal of Medicine"?
11                  MR. MACE:  Objection, assumes.  
12                  MR. WOODSIDE:  Object to the form 
13   of the question because I don't understand it. 
14            Q.   Well, let me rephrase it.  Doctor, 
15   were you aware of NIOSH's findings before this 
16   article was published? 
17            A.   Yes, I was. 
18            Q.   How were you aware? 
19            A.   Through the NIOSH conference that 
20   was put on in Morgantown, West Virginia. 
21            Q.   And, Doctor, describe for us the 
22   NIOSH conference in Morgantown.  
23            A.   Dr. Kreiss --
24                  MR. WOODSIDE:  Excuse me.  Is this 
0034
 1   the August 25, 2001 conference?  
 2            Q.   Well, Doctor, was it? 
 3            A.   I think that was the date, August 
 4   2001. 
 5            Q.   Doctor, would you please describe 
 6   what happened on August 8th of 2001? 
 7            A.   NIOSH had organized -- 
 8                  MR. MACE:  Objection to the date.  
 9            Q.   Strike that.  Doctor, would you 
10   please describe what happened at the August 25th, 
11   2001, conference that NIOSH convened regarding 
12   bronchiolitis obliterans in the flavoring 
13   industry.  
14            A.   Dr. Kreiss had organized a 
15   conference revolving around this issue.  She had 
16   presented her data at that conference as we 
17   presented our data, and based on that conference, 
18   there appeared to be a cause/effect relationship 
19   between at least in the popcorn manufacturing 
20   industry this particular disease state and the 
21   exposures that occurred within that industry. 
22            Q.   And, Doctor, at the conference did 
23   more than one scientist present? 
24            A.   Yes. 
0035
 1            Q.   Can you describe the types of 
 2   scientists that presented the findings that NIOSH 
 3   had reached at the Jasper popcorn plant? 
 4            A.   There were some case reports that 
 5   were presented, I think, from Missouri.  There was 
 6   a pathology review of bronchiolitis obliterans.  I 
 7   presented the findings based on the flavoring 
 8   manufacturing company that we looked at.  And Dr. 
 9   Kreiss, I think, presented the findings that she 
10   had in relationship to popcorn manufacturing. 
11            Q.   Doctor, at that conference did Dr. 
12   Hubbs present her findings? 
13            A.   Yes, Dr. Hubbs, who did the case 
14   report. 
15            Q.   She did the rat study, I believe.  
16            A.   Oh, I think she did, yes. 
17            Q.   And could you describe for the jury 
18   what that -- what those findings were?
19                  MR. MACE:  Objection, calls for 
20   hearsay.  
21                  MR. WOODSIDE:  Same.  
22                  MR. WARD:  Same objection.  
23            A.   I mean, I don't remember the 
24   findings in that.  I remember, I think she looked 
0036
 1   at diacetyl and found abnormalities in the animals 
 2   she looked at, but I'd have to go back and review 
 3   that. 
 4            Q.   Well, we'll come to that in a 
 5   second.  But, Doctor, based upon your review of 
 6   the process by which the scientists that published 
 7   in the "New England Journal of Medicine" reached 
 8   their conclusions, do you believe to a reasonable 
 9   medical certainty that their conclusions are 
10   correct? 
11            A.   Yes, I do. 
12            Q.   I was mentioning Dr. Hubbs.  This 
13   we'll mark as Exhibit 5. 
14   (Deposition Exhibit No. 5 was marked for 
15   identification.) 
16            Q.   Doctor, this is "Necrosis of Nasal 
17   and Airway Epithelium in Rats Inhaling Vapors of 
18   Artificial Butter Flavoring," toxicology and 
19   applied pharmacology, published in 2002 by Dr. Ann 
20   F. Hubbs and others.  Are you familiar with this 
21   article? 
22            A.   I haven't seen this article before. 
23            Q.   Do you recall Dr. Hubbs' oral 
24   presentation at the conference? 
0037
 1            A.   Yes, I do. 
 2            Q.   And are you generally familiar with 
 3   her conclusions? 
 4            A.   I think based on the conference that 
 5   she thought that this -- 
 6                  MR. MACE:  Objection, hearsay. 
 7            A.   -- this very well may be the 
 8   offending agent, but I haven't seen the article 
 9   published. 
10            Q.   Doctor, have you seen Dr. Hubbs' 
11   second abstract regarding a further study that was 
12   done by her group to further test this hypothesis 
13   that butter flavor and/or diacetyl was the cause 
14   of this process? 
15            A.   No, I have not. 
16            Q.   I'll show you what we've marked as 
17   Exhibit 6. 
18   (Deposition Exhibit No. 6 was marked for 
19   identification.) 
20            Q.   Doctor, just to be clear, I'm going 
21   to show you, to be certain that you have read this 
22   abstract, this is a 2127 at the bottom of the 
23   second page, "Inhalation Toxicity of the" -- 
24                  MR. MACE:  Can we get a copy?  
0038
 1                  MR. MCCLAIN:  Yes, I'm sorry.
 2                  MR. MACE:  Objection to the 
 3   hearsay.
 4   BY MR. MCCLAIN: 
 5            Q.   This is 2127 by Dr. Hubbs, 
 6   "Inhalation Toxicity of the Flavoring Agent 
 7   Diacetyl in the Upper Respiratory Tract of Rats," 
 8   and you haven't had a chance to review this yet? 
 9            A.   No, I haven't seen this. 
10            Q.   All right.  Now, Doctor, let me ask 
11   you, did you at anytime when you were conducting 
12   your studies at the Flavor Master/Givaudan plant 
13   have specific animal testing available to you 
14   regarding the effect of diacetyl on the human lung 
15   or epithelium?
16                  MR. MACE:  Objection to form.  
17            A.   Not that I'm aware of. 
18            Q.   And, Doctor, were you asked -- And, 
19   Doctor, did you -- Were you provided with the 
20   opportunity to do specific testing regarding the 
21   chemicals found in butter flavor by 
22   TasteMaker/Givaudan?
23                  MR. MACE:  Continuing objection to 
24   the slash Givaudan.  
0039
 1            A.   I'm not sure I understand the 
 2   question. 
 3            Q.   Did they -- When you were consulting 
 4   for TasteMaker, did you -- did they offer to do 
 5   tests regarding diacetyl and its effects on the 
 6   lung? 
 7            A.   Not that I recall. 
 8            Q.   Doctor, let me ask you if you've 
 9   ever seen Exhibit 7. 
10   (Deposition Exhibit No. 7 was marked for 
11   identification.) 
12            A.   No, I have never seen this. 
13            Q.   Doctor, this is a study.  If you'll 
14   look at the second page, you'll see it's from 1993 
15   from the BASF company based in Germany, who are a 
16   manufacturer of diacetyl.  Are you familiar with 
17   that company? 
18            A.   I've heard of the company.  I don't 
19   have any direct knowledge about the company one 
20   way or the other. 
21            Q.   Were you aware at the time that you 
22   were consulting for TasteMaker that, in fact, BASF 
23   study had conducted a rat study on the chemical 
24   diacetyl that showed that damage to the lung was 
0040
 1   caused by inhalation of this chemical? 
 2            A.   No.  
 3                  MR. MACE:  Objection, hearsay.  
 4                  MR. WOODSIDE:  Same objection.  
 5                  MR. WARD:  Same objection. 
 6            Q.   Doctor, is this information that 
 7   would have been helpful to you when you were 
 8   consulting with TasteMaker regarding bronchiolitis 
 9   obliterans in their plant?
10                  MR. MACE:  Objection.  
11            A.   Yes.  
12                  MR. WARD:  Objection.  
13            Q.   All right.  Doctor, I want to get 
14   into your study this morning.  And you're aware of 
15   an organization called FEMA? 
16            A.   Yes. 
17            Q.   The Flavoring and Extract 
18   Manufacturers' Association? 
19            A.   Yes. 
20            Q.   What is that organization; can you 
21   describe it for the jury? 
22            A.   As far as I know, it's a trade 
23   organization made up of flavor manufacturers. 
24            Q.   And did TasteMaker -- were they the 
0041
 1   first group to alert you to the existence of FEMA? 
 2            A.   Yes. 
 3            Q.   Was it through TasteMaker that you 
 4   learned about FEMA? 
 5            A.   Yes. 
 6            Q.   And did TasteMaker put you in 
 7   contact with representatives of FEMA during the 
 8   course of your work? 
 9            A.   Yes. 
10            Q.   Let's mark this as Exhibit 8, 
11   please. 
12   (Deposition Exhibit No. 8 was marked for 
13   identification.) 
14            Q.   Doctor, this is a document that's 
15   entitled "Respiratory Safety in the Flavor & 
16   Fragrance Workplace, Thursday, June 13th, 2002, 
17   Newark Airport Marriott."  
18                 Doctor, are you aware of a 
19   conference that FEMA sponsored regarding 
20   respiratory safety? 
21            A.   No. 
22            Q.   Look over with me, would you, 
23   Doctor, because there's a description regarding 
24   the outbreak of bronchiolitis obliterans, look at 
0042
 1   page 2, if you would.  It's 2 at the top.  At the 
 2   top of the page, there's a narrative section.  
 3   Does your copy not have -- Let me see, hang on.  
 4            A.   Okay. 
 5            Q.   Doctor, there's -- There are two 
 6   paragraphs here, and I just want to read this 
 7   first three portions of paragraphs into the record 
 8   so that we have some reference to your work and 
 9   try to place it in the context of the overall work 
10   that's been done on bronchiolitis obliterans in 
11   the flavoring industry.  
12                  MR. MACE:  Objection, hearsay.  
13            Q.   It says:  "The possibility that 
14   exposure to flavors in the workplace may result in 
15   respiratory injury was noted in a 1986 health 
16   hazard evaluation published by the National 
17   Institute of Occupational Safety and Health, 
18   NIOSH, on two workers at a facility that mixed 
19   liquid and powdered flavorings for use in the 
20   baking industry.  The report concluded that it is 
21   probable that some agent in the mixing room 
22   produced severe mixed obstructive lung disease.  
23   Lung tissue samples, lung biopsy information, from 
24   the two workers were not available, but the report 
0043
 1   concluded that the clinical picture was more 
 2   compatible with bronchiolitis obliterans than with 
 3   emphysema."  
 4                 Doctor, were you aware of this 1986 
 5   report at the time that you were consulting for 
 6   Taste Makers? 
 7            A.   I think we found that report when we 
 8   did our work in '95, '96.  We did extensive review 
 9   of the literature, and actually, we found that 
10   report, and actually, we made that report -- made 
11   Kathleen Kreiss aware of that report. 
12            Q.   So you were the ones that made Dr. 
13   Kreiss, who published in the "New England Journal 
14   of Medicine," that there had been previous reports 
15   going back to 1986 of bronchiolitis obliterans in 
16   the flavoring industry; is that correct? 
17            A.   That's correct.  If I recall 
18   correctly, the NIOSH report did not focus on it.  
19   It was sort of buried in the discussion part.  
20   They weren't sure what was going on. 
21            Q.   And, Doctor, just so that I'm clear, 
22   it was out of your involvement with TasteMaker 
23   that you discovered the report and made them aware 
24   of it; is that correct? 
0044
 1            A.   If I recall correctly, yes, that's 
 2   correct. 
 3            Q.   And it says:  "In late 1996, a 
 4   member company," a member of FEMA, "reported to 
 5   FEMA on a confidential basis that a worker 
 6   developed a severe respiratory illness identified 
 7   as bronchiolitis obliterans while working in the 
 8   manufacture of flavors.  Due to patient 
 9   confidentiality issues, very little information 
10   was available at that time and the cause of the 
11   illness could not be determined.  Because of this 
12   initial report, FEMA and FMA sponsored a workshop 
13   in March of 1997 to focus its members on 
14   respiratory safety practices."  
15                 Doctor, in 1996 did you report to 
16   FEMA bronchiolitis obliterans at the TasteMaker 
17   plant? 
18            A.   Yes. 
19            Q.   And, Doctor, were you aware that in 
20   1997 they had a program at FEMA based upon your 
21   report of bronchiolitis obliterans at the 
22   TasteMaker plant? 
23            A.   No, I was not. 
24            Q.   Doctor, did FEMA ask you to present 
0045
 1   any of your findings at its conference in 1997 
 2   regarding bronchiolitis obliterans in the 
 3   TasteMaker plant? 
 4            A.   No. 
 5            Q.   Doctor, did FEMA ask you to follow 
 6   up on your findings at the TasteMaker plant so as 
 7   to protect other workers in the flavor industry 
 8   and/or their customers?
 9                  MR. MACE:  Objection, form.  
10            A.   No. 
11            Q.   Doctor, let me ask you, at the 
12   University of Cincinnati where you practice 
13   medicine and teach, do you have other 
14   professionals in the occupational safety and 
15   health area to assist you in your work? 
16            A.   Yes. 
17            Q.   Do you have industrial hygienists? 
18            A.   Yes. 
19            Q.   And toxicologists? 
20            A.   Yes. 
21            Q.   Do you have chemists? 
22            A.   Yes. 
23            Q.   And, Doctor, do all of those assist 
24   the occupational physicians, such as yourself, in 
0046
 1   trying to identify the agents in workplaces that 
 2   are hazardous or potentially hazardous and attempt 
 3   to determine how to protect workers from those 
 4   hazards? 
 5            A.   Under certain circumstances, yes, 
 6   they do. 
 7            Q.   And, Doctor, did anyone from FEMA 
 8   ever ask you to assist it in helping their members 
 9   keep workers safe? 
10            A.   No. 
11            Q.   Doctor, did TasteMaker outside of 
12   your consultation, which we're going to discuss in 
13   detail, ever ask you to go further and help them 
14   determine whether any of their products were 
15   hazardous to their customers or the workers who 
16   worked for their customers?
17                  MR. MACE:  Object to form.  
18            A.   No, they did not. 
19            Q.   And, Doctor, was your institution, 
20   the University of Cincinnati, capable of doing 
21   such work? 
22            A.   Yes. 
23            Q.   And is that the type of work that 
24   you do both for academic interest as well as part 
0047
 1   of your occupational health responsibilities? 
 2            A.   Yes. 
 3            Q.   Doctor, tell me, do you consider 
 4   yourself to be a public health professional? 
 5            A.   Yes. 
 6            Q.   What is the goal of public health? 
 7            A.   The overall well-being of the public 
 8   as a whole in relationship to public health 
 9   issues. 
10            Q.   If anyone had asked you to carry out 
11   further studies regarding your findings at the 
12   TasteMaker facility to protect other workers, 
13   would you have attempted to do so, if at all 
14   possible? 
15            A.   Yes. 
16            Q.   And no one ever asked you to do 
17   that? 
18            A.   No. 
19            Q.   Now, the paragraph that I read to 
20   you goes on and it says:  "Additional information 
21   related to this incident was obtained in 
22   subsequent years and was reported publicly for the 
23   first time in 2001 at a symposium on bronchiolitis 
24   obliterans sponsored by NIOSH.  At that symposium 
0048
 1   a physician reported that five workers at a flavor 
 2   manufacturing facility developed severe 
 3   respiratory illness that may be associated with 
 4   exposure to flavors."  Do you see that? 
 5            A.   Yes, I do. 
 6            Q.   That was you; wasn't it? 
 7            A.   That's correct. 
 8            Q.   Now, Doctor, they say that that was 
 9   the first time it was reported publicly in 2001, 
10   but you had reported it to FEMA in 1996; isn't 
11   that true?
12                  MR. MACE:  Object.  
13                  MR. WOODSIDE:  Object to the form 
14   of the question.  Let me tell you why I object, 
15   okay.  You haven't laid the foundation that all of 
16   the information you just talked about was even 
17   available in 1996.  
18            Q.   Doctor, it's correct, isn't it, that 
19   in 1996 you alerted FEMA to your findings at 
20   TasteMaker? 
21            A.   That's correct. 
22            Q.   Doctor, if you'll look back at the 
23   last page of this "ATS Daily Bulletin."  
24            A.   Yes.
0049
 1                  MR. WOODSIDE:  Just so we're clear, 
 2   I don't believe that's part of the exhibit that he 
 3   already has; that would be a separate document.  I 
 4   don't care how you refer to it, but that's not 
 5   part of -- 
 6                  MR. MCCLAIN:  Well, if you'll look 
 7   at the bates number, it's how FEMA produced them 
 8   to us.  
 9                  MR. WOODSIDE:  That's okay.  I'm 
10   not quibbling with you using the document.  It's 
11   just not part of that FEMA document.  
12                  MR. MCCLAIN:  Well, it was as they 
13   produced it to us.  So I don't know whether or not 
14   that's the way that they distributed it to their 
15   members or not, but that is the way that they 
16   presented it to us.  
17                  MR. WOODSIDE:  I understand.  I'm 
18   not objecting to your using it.  
19                  MR. MACE:  You're saying that the 
20   copy that you got was stapled that way or what?  
21                  MR. MCCLAIN:  If you'll look at the 
22   bates numbers, they're sequential, and this is 
23   page 1440 at the back.  His abstract is 1439, and 
24   1438 is -- All of these pages are sequential in 
0050
 1   the bates numbering, and they presented them to us 
 2   all as one package.
 3                  MR. MACE:  I'm not arguing that.  
 4   I'm saying, was it clipped together; are you 
 5   saying it was stapled together?  
 6                  MR. MCCLAIN:  Yes, it was, as it 
 7   was produced to us.  
 8   BY MR. MCCLAIN:  
 9            Q.   All right.  Dr. Lockey, do you see a 
10   picture of you at the back of this document? 
11            A.   Yes.  That's why I'm on a diet. 
12            Q.   And I can tell it's working.  
13                 But, nonetheless, they are 
14   referencing their, within FEMA's document, in 2002 
15   your work, the work that you did for TasteMaker in 
16   1996; isn't that clear? 
17            A.   That's correct.
18                  MR. WOODSIDE:  Can I -- Never mind, 
19   I'll straighten it out later.  
20            Q.   Doctor, let me show you what we'll 
21   mark as Exhibit 9. 
22   (Deposition Exhibit No. 9 was marked for 
23   identification.) 
24            Q.   Doctor, this is a document which is 
0051
 1   entitled "Respiratory Safety in the Flavor and 
 2   Fragrance Workplace" by FEMA, March 27th of 1997.  
 3   Do you recall, Doctor, in Exhibit 8 it refers to 
 4   the existence of this conference that they say was 
 5   sparked by your report to them in 1996? 
 6            A.   Yes, I recall that. 
 7            Q.   Doctor, do you know Cecile Rose? 
 8            A.   Yes, I do. 
 9            Q.   Do you know that Cecile Rose made a 
10   presentation to FEMA in 1997? 
11            A.   No, I did not. 
12            Q.   Did they disclose, did FEMA disclose 
13   to you -- Look over with me, would you, at page 
14   1613.  
15            A.   Page 1613?
16            Q.   Yeah, at the bottom of the page.  
17            A.   Okay. 
18            Q.   Health issues in workplace, 
19   respiratory health, Cecile Rose, MD, MPH, National 
20   Jewish Medical Center.  
21            A.   Yes. 
22            Q.   Did you know that Dr. Rose was on 
23   retainer to FEMA at this time in 1997? 
24            A.   No, not in 1997.  I knew 
0052
 1   subsequently she was, but not I think in 1997. 
 2            Q.   What do you understand the 
 3   relationship between Dr. Rose and FEMA is? 
 4            A.   I don't know.  I just know that she 
 5   was doing some work for them. 
 6            Q.   Do you know the nature of her work? 
 7            A.   No, I do not. 
 8            Q.   Do you know whether or not she is 
 9   under a confidentiality agreement and cannot 
10   disclose the nature of her work for FEMA? 
11            A.   I have no knowledge one way or the 
12   other. 
13            Q.   Do you know that she saw one of the 
14   Jasper popcorn workers as early as 1994? 
15            A.   No. 
16            Q.   Doctor, did anyone from FEMA ever 
17   invite you to present at this conference? 
18            A.   No. 
19            Q.   Doctor, if you'll look back at the 
20   back of this document from NIOSH -- There is at 
21   the back of this FEMA document, there is the NIOSH 
22   case report from 1986 that you referenced -- or 
23   I'm sorry, 1985, that you found in reference to -- 
24            A.   Do you have a page number?  
0053
 1                  MR. MACE:  I think it is '86, by 
 2   the way, Ken.  
 3            Q.   We'll start again.  1732, Doctor, 
 4   it's at the back as an attachment.  
 5            A.   Okay. 
 6            Q.   Okay.  Doctor, is this the NIOSH 
 7   report -- 
 8            A.   Yes, it is. 
 9            Q.   -- from 1986 that you found when you 
10   were consulting for TasteMakers? 
11            A.   That's correct. 
12            Q.   Do you know whether TasteMakers made 
13   FEMA aware of this report or whether FEMA was 
14   already aware of this report when you consulted 
15   with them in 1997? 
16            A.   I'd have to go back and look at my 
17   notes.  I don't recall one way or the other. 
18            Q.   But in any case, at this conference 
19   which occurred in 1997, apparently FEMA was aware 
20   of this previous outbreak of bronchiolitis 
21   obliterans in the flavoring industry; is that 
22   correct? 
23            A.   Apparently so, if it was included in 
24   this information.
0054
 1                  MR. WOODSIDE:  Object, speculation.
 2                  MR. WARD:  Join that objection.  
 3   Move to strike.  
 4            Q.   Doctor, I'm not sure, did I ask you 
 5   did FEMA ask you to present at this conference? 
 6            A.   I was not aware of the conference, 
 7   so I wasn't asked to present. 
 8            Q.   Had you made a presentation to FEMA 
 9   before this time in 1997? 
10            A.   Yes. 
11            Q.   And, in fact, had you done a 
12   so-called show and tell for them about the disease 
13   bronchiolitis obliterans? 
14            A.   Yes, I did. 
15            Q.   And did you explain to them the 
16   mechanism of bronchiolitis obliterans as you did 
17   to the jury today? 
18            A.   I did. 
19            Q.   And did you indicate to them that 
20   you had found bronchiolitis obliterans at the 
21   TasteMaker plant? 
22            A.   Yes. 
23            Q.   Do you know why they didn't ask you 
24   to present?
0055
 1                  MR. MACE:  Objection.  
 2            A.   I do not. 
 3            Q.   Dr. Lockey, we have been talking 
 4   about your abstract.  Let's mark it so that we 
 5   have it in the record.  This is Exhibit 10.  
 6                  MR. WOODSIDE:  I don't think so.  
 7   What was 9?  Oh, okay, I'm sorry. 
 8   (Deposition Exhibit No. 10 was marked for 
 9   identification.) 
10   BY MR. MCCLAIN:   
11            Q.   Doctor, is this -- Can you identify 
12   Exhibit 10 for us, please.  
13            A.   It's an abstract that was submitted 
14   to the American Thoracic Society for their 2002 
15   conference. 
16            Q.   And, Doctor, was this the first 
17   published report of your findings? 
18            A.   Yes. 
19            Q.   Doctor, you report a finding of five 
20   workers from the TasteMaker plant with 
21   bronchiolitis obliterans; is that right? 
22            A.   That's correct. 
23            Q.   And you say:  "This case series 
24   indicates that the manufacturing of food flavors 
0056
 1   in relatively large amounts and at high 
 2   concentrations and the use of aerosolized 
 3   manufacturing processes may represent a 
 4   respiratory hazard in susceptible workers"; is 
 5   that correct? 
 6            A.   That's correct. 
 7            Q.   Now, Doctor, did -- There were a 
 8   number of chemicals that were present in the 
 9   workplace where these five workers worked; is that 
10   correct? 
11            A.   Yes. 
12            Q.   We're going to look at your specific 
13   documents on those findings in a second, but do 
14   you recall that acetaldehyde was one chemical that 
15   was found? 
16            A.   Yes. 
17            Q.   And acetoin? 
18            A.   I think that's correct, yes. 
19            Q.   And also diacetyl?
20                  MR. MACE:  Objection, overbroad.  
21            A.   There was diacetyl in the 
22   manufacturing plant site. 
23            Q.   Did TasteMaker ever ask you to 
24   follow up and perform specific tests to determine 
0057
 1   the toxicity or the ability of any of these 
 2   chemicals individually to cause bronchiolitis 
 3   obliterans? 
 4            A.   No, they did not. 
 5            Q.   Did your facility at the University 
 6   of Cincinnati have the ability to perform such 
 7   tests? 
 8            A.   There are inhalational chambers at 
 9   the University of Cincinnati and they could be 
10   performed there, yes. 
11            Q.   And had they asked you to do it, 
12   would you have been interested in doing such work? 
13            A.   We would have considered it.  
14   Whether we would have in fact done it or not would 
15   be determined on the magnitude of the work load 
16   and what we were doing at the time. 
17            Q.   But, Doctor, in general has it been 
18   your practice to attempt to follow your research 
19   to its end point? 
20            A.   Yes. 
21            Q.   And, Doctor, in light of your 
22   findings -- Strike that.
23                 Doctor, let me ask you this.  Had 
24   you been made aware that as of 1993 rat studies 
0058
 1   had been done that showed that diacetyl caused 
 2   lung damage, would that have been important to you 
 3   in knowing how to pursue further work in regard to 
 4   the workers at the TasteMaker plant? 
 5            A.   It would have been helpful, yes. 
 6            Q.   And did anyone from TasteMaker make 
 7   you aware of such study?
 8                  MR. MACE:  Objection, assumes they 
 9   knew about it.  
10            A.   Not that I'm aware of, no. 
11            Q.   Or anyone from FEMA, did FEMA make 
12   you aware of that work? 
13            A.   No. 
14            Q.   All right.  Let's talk -- Then we've 
15   kind of talked around your work for TasteMaker.  
16   Let's talk about it specifically, if we can.  
17                 Doctor, what was your first contact 
18   from TasteMakers regarding consulting for them? 
19            A.   When was it?  I think probably in 
20   1995. 
21            Q.   Can you describe the circumstances 
22   under which they contacted you and what they asked 
23   you to do? 
24            A.   I don't recall specifically who 
0059
 1   contacted us.  I do recall that there was another 
 2   university that was involved before we got 
 3   involved. 
 4            Q.   Who was that? 
 5            A.   The University of South Florida.  
 6   And it's not clear to me why they were turning 
 7   from one university to the other, other than I 
 8   think that the first investigative team were 
 9   having trouble, perhaps, identifying what was 
10   going on at the plant site. 
11            Q.   Doctor, I don't need to mark this as 
12   an exhibit, unless Counsel wants me to, it's our 
13   only copy, but maybe this will refresh your 
14   recollection about the timing of some of these 
15   contacts.  
16                 Who is Dr. Roy McKay? 
17            A.   Dr. McKay is one of my faculty 
18   members.  
19                  MR. MACE:  Can we see it, Counsel?
20                  MR. MCCLAIN:  Yes. 
21                  THE WITNESS:  Okay.  
22                  MR. MCCLAIN:  Let me show it to 
23   Counsel.  
24                  MR. MACE:  Thank you. 
0060
 1                  THE WITNESS:  Okay.
 2   BY MR. MCCLAIN: 
 3            Q.   Doctor, does that refresh your 
 4   recollection about the timing of the contacts with 
 5   your university and TasteMakers? 
 6            A.   Beginning 19 -- the latter part of 
 7   1994 .
 8            Q.   And, Doctor, if you'll look, there 
 9   is a Dr. Brooks referenced within this document 
10   from the University of South Florida.  
11            A.   Yes. 
12            Q.   Who is Dr. Brooks? 
13            A.   He's an occupational pulmonary 
14   physician at the University of South Florida. 
15            Q.   And is he well-known in this field? 
16            A.   Yes. 
17            Q.   And was he consulted initially about 
18   the problems that TasteMaker was having regarding 
19   sickness among their workers? 
20            A.   Yes. 
21            Q.   Now, let's go ahead, then, and mark 
22   this as Exhibit 11. 
23   (Deposition Exhibit No. 11 was marked for 
24   identification.) 
0061
 1            Q.   Did you ever review any of Dr. 
 2   Brooks' work that he did? 
 3            A.   I don't recall ever seeing any work 
 4   that Dr. Brooks did. 
 5            Q.   TasteMaker never shared with you 
 6   what he found or what he reported to them?
 7                  MR. MACE:  Objection, assumes.  
 8            A.   I think they might have shared what 
 9   was going on, but I don't recall seeing any 
10   specific documents that Dr. Brooks wrote. 
11            Q.   What do you recall them sharing with 
12   you about Dr. Brooks' consultation or the 
13   circumstances that brought him into contact with 
14   TasteMaker? 
15            A.   I wasn't sure how Dr. Brooks got 
16   involved, other than I recall John Hochstrasser I 
17   think knew Dr. Brooks, and that's probably what 
18   the initial contact was. 
19            Q.   Who's John Hochstrasser? 
20            A.   John was an industrial hygienist, I 
21   think, at the company at that time. 
22            Q.   He was an industrial hygienist at 
23   TasteMaker? 
24            A.   Yes.  I think John and Dr. Brooks 
0062
 1   knew each other. 
 2            Q.   Okay.  Now, where was the facility 
 3   that Dr. Brooks was consulting about? 
 4            A.   In Cincinnati. 
 5            Q.   In Cincinnati? 
 6            A.   (Nodding head.) 
 7            Q.   Did TasteMaker also have a facility 
 8   in Lakeland, Florida? 
 9            A.   I don't know. 
10            Q.   Okay.  You weren't asked to consult 
11   about that facility, if it exists? 
12            A.   No. 
13            Q.   What were you told that he found in 
14   regard to the Cincinnati facility; can you tell 
15   me?
16                  MR. MACE:  Objection, assumes.  
17            A.   Again, I'm going back in my time, 
18   but I think Dr. Brooks felt that the plant site 
19   was having issues with asthma or small airway 
20   disease, and it wasn't clear why that was 
21   occurring.  I think Dr. Brooks, if I recall 
22   correctly, felt that in some of the laboratory 
23   areas there were perhaps exposures that may be 
24   accounting for airway disease, but he wasn't sure.  
0063
 1   Essentially, he wasn't sure what was going on. 
 2            Q.   Were you told, Doctor, by TasteMaker 
 3   why they were coming to the University of 
 4   Cincinnati for consultation on this matter? 
 5            A.   Probably locally located, able to 
 6   bring more power to bear to try to solve the 
 7   problem. 
 8            Q.   All right.  Now, Doctor, I'm going 
 9   to show you what we'll mark as Exhibit 12.  
10            A.   That's speculation on my part, but 
11   that's most likely the reason. 
12            Q.   Doctor, as an expert, you're allowed 
13   to speculate.  That's your stock in trade.  
14                  MR. WOODSIDE:  Maybe they taught 
15   you that at the University of Michigan, but I 
16   don't believe that's the law.  
17                  MR. WOODSIDE:  Off the record.
18                      (Off the record.)
19   (Deposition Exhibit No. 12 was marked for 
20   identification.) 
21   BY MR. MCCLAIN:   
22            Q.   Doctor, back on the record.  Exhibit 
23   11.  
24            A.   Yes.  
0064
 1                  MR. WOODSIDE:  Twelve  .
 2            Q.   Twelve, I'm sorry.  Doctor, I'm 
 3   handing you what's been marked as Exhibit 12.  Is 
 4   this a copy of your agreement with TasteMaker? 
 5            A.   Yes, it is, attaching an agreement 
 6   fee of the Health Alliance of Greater Cincinnati 
 7   on behalf of me. 
 8            Q.   What is the Health Alliance of 
 9   Greater Cincinnati? 
10            A.   The Center for Occupational Health, 
11   which is the clinical unit of our program, was 
12   based in the Health Alliance of Greater 
13   Cincinnati, which is -- owns the hospital. 
14            Q.   And, Doctor, there are several 
15   provisions in here, one of them is that you will 
16   keep your findings confidential; is that correct? 
17            A.   That's correct. 
18            Q.   And, Doctor, there is -- there are 
19   other requirements, such as designating your 
20   written reports as Privileged and Confidential 
21   Prepared at the Request of Counsel; do you see 
22   that?
23                  MR. MACE:  Objection, incomplete.  
24            Q.   At page 5.  
0065
 1            A.   Yes.
 2                  MR. WOODSIDE:  I don't have a page 
 3   5.  
 4            Q.   Item 5.  
 5                  MR. WOODSIDE:  Oh, okay, thank you, 
 6   sorry.  
 7            Q.   And there was a requirement in this 
 8   document to return all documents back to 
 9   TasteMaker after you were completed with your 
10   assignment? 
11            A.   Yes. 
12            Q.   And, Doctor, we're going to come to 
13   a discussion about that, but this came up later as 
14   you were disclosing your results to the American 
15   Thoracic Society and also to NIOSH; isn't that 
16   true? 
17            A.   Yes, it did. 
18            Q.   So, Doctor, going into this project, 
19   you had an understanding from TasteMaker that your 
20   findings were considered confidential by them; is 
21   that correct? 
22            A.   That's correct. 
23            Q.   And not for dissemination to the 
24   general public; is that correct? 
0066
 1            A.   That was my impression, yes. 
 2            Q.   Doctor, that document is marked July 
 3   10th, 1995.  I'm going to show you some 
 4   handwritten notes that we'll mark as Exhibit 13 
 5   from July 26th of 1995. 
 6   (Deposition Exhibit No. 13 was marked for 
 7   identification.) 
 8            Q.   Now, Doctor, we received these in 
 9   response to a subpoena that we served upon you 
10   through the University.  Do you recognize these 
11   notes? 
12            A.   That's my handwriting. 
13            Q.   And it's from 1995? 
14            A.   Yes. 
15            Q.   And, Doctor, was this at the 
16   beginning of your consultation with TasteMakers? 
17            A.   Yes. 
18            Q.   And can you tell us what they refer 
19   to? 
20            A.   It was a meeting with Nancy Higley, 
21   who if I recall correctly is a flavor 
22   toxicologist. 
23            Q.   And was this in the nature of an 
24   orientation meeting for you about what the 
0067
 1   chemicals were and what were the processes that 
 2   were being utilized at the plant? 
 3            A.   Yes.  
 4                  MR. WOODSIDE:  Object to the use of 
 5   the term "the plant" unless you're referring to 
 6   TasteMaker. 
 7            Q.   That's what I'm referring to.  To 
 8   the TasteMaker plant? 
 9            A.   Yes. 
10            Q.   And if you'll look back to the page 
11   that's marked "Mill Room" at the top.  
12            A.   Yes. 
13            Q.   Down where you have a star on the 
14   page, "Diacetyl."  
15            A.   Yes. 
16            Q.   Would you read that for us, please.  
17            A.   Diacetyl vapor off gassing from 
18   tank.  They use respirators, flashes at 40 degrees 
19   Fahrenheit.  Donny, which I assume was one of the 
20   workers, had burning eyes from this. 
21            Q.   Okay.  And why did you note that? 
22            A.   We were going through a list of 
23   potential places at the plant site or ingredients 
24   at the plant site where people were reporting 
0068
 1   symptoms. 
 2            Q.   Now, this document is marked 
 3   "Redacted."  Did you direct someone to redact this 
 4   document, Doctor? 
 5            A.   What does redacted mean?
 6            Q.   It means they cut some stuff out 
 7   they didn't want me to see, apparently.  
 8            A.   No. 
 9            Q.   I don't know what it is that's not 
10   included in this document.  Can you tell by 
11   looking at it -- 
12            A.   No. 
13            Q.   -- what they covered up?  
14                 Who had the authority to cover up 
15   your written notes, Doctor; do you know who did 
16   this? 
17            A.   I don't know who marked it redacted.  
18   These documents went to the University attorneys 
19   and to TasteMaker or Givaudan attorneys. 
20            Q.   And, Doctor, did -- Do you have an 
21   understanding today that Givaudan, TasteMaker, is 
22   still claiming that this work is confidential, 
23   even though we're in a lawsuit and you are willing 
24   to talk about your involvement here?
0069
 1                  MR. MACE:  Objection, 
 2   mischaracterizes. 
 3            Q.   You're understanding that they're 
 4   still claiming that your work is confidential to 
 5   some degree?
 6                  MR. MACE:  Objection.  
 7            A.   I have no knowledge one way or the 
 8   other. 
 9            Q.   Do you know on what authority they 
10   have to edit things in your file before they're 
11   produced to me?
12                  MR. MACE:  Objection, assumes.  
13            A.   No, I don't one way or the other. 
14            Q.   You personally don't have an 
15   objection to me seeing your entire file; is that 
16   correct? 
17            A.   No. 
18            Q.   Doctor, I believe these are at least 
19   some typewritten recitation of your original 
20   visit.  Would you mark that as Exhibit 14. 
21   (Deposition Exhibit No. 14 was marked for 
22   identification.) 
23            A.   Redacted. 
24            Q.   Yes, Doctor, it too is redacted.
0070
 1                  MR. WARD:  Ken, I'm sorry to 
 2   interrupt.  The notes of July '95, are those 
 3   marked as 13?  
 4                  MR. MCCLAIN:  Yes.  
 5                  THE WITNESS:  Okay.  
 6   BY MR. MCCLAIN:  
 7            Q.   Doctor, this is Exhibit 14, it's 
 8   dated August 4th, 1995.  Is this a subsequent 
 9   visit that you or members of your staff had to the 
10   plant? 
11            A.   I assume so. 
12            Q.   Page 8, if you'll refer to it, the 
13   reason I reference it is that it has the same 
14   information that we just read into the record from 
15   your handwritten notes:  "The material called 
16   diacetyl when added to tank apparently flashes at 
17   40 degrees.  Donny, one of the workers, reported 
18   burning of eyes from this material.  Again, it was 
19   reported that respirators should be utilized when 
20   this was done."  
21            A.   Correct.  This might have been a 
22   summary of -- a dictation summary of all of the 
23   notes. 
24            Q.   That you had --
0071
 1            A.   Right. 
 2            Q.   -- from the summary?  Yes, all 
 3   right, that makes sense to me, but I wanted to 
 4   confirm that with you.  
 5                 If you'll look over at page 3, 
 6   Doctor, do you see it references Stuart Brooks, 
 7   Donny worked in the small orders department; do 
 8   you see that from your notes? 
 9            A.   Right. 
10            Q.   And that's -- 
11            A.   That was the area I was talking 
12   about that Stu was concerned about. 
13            Q.   "Stu Brooks had a concern about the 
14   Small Orders Department.  Again, this could be a 
15   microcosm of the company as a whole."  
16            A.   Yes. 
17            Q.   And was this one of the reasons why 
18   you were studying this area? 
19            A.   Well, we looked at the whole plant 
20   site, but we were trying to figure out why people 
21   were getting this disease process. 
22                  MR. MCCLAIN:  All right.  Why don't 
23   we take a quick break.  
24                  THE VIDEOGRAPHER:  One second, 
0072
 1   please, going off the record, one second.  We're 
 2   off. 
 3                                     (Brief recess.) 
 4                  THE VIDEOGRAPHER:  We're back on 
 5   the record.  You may begin.  
 6   BY MR. MCCLAIN:  
 7            Q.   Doctor, let's mark this as Exhibit 
 8   15. 
 9   (Deposition Exhibit No. 15 was marked for 
10   identification.)
11                  THE VIDEOGRAPHER:  I'm sorry, is 
12   your mike on, sir?  
13                      (Off the record.)
14                  THE VIDEOGRAPHER:  You may begin, 
15   go ahead.  
16   BY MR. MCCLAIN: 
17            Q.   Doctor, I'm handing another document 
18   that was produced out of your records.  Is this a 
19   document that you received during the course of 
20   your consultancy? 
21            A.   Was this in the packet?
22            Q.   Yes.  
23            A.   Yes, it is.  
24            Q.   And, Doctor, this lists the 
0073
 1   chemicals purchased per year per pound; is that 
 2   correct? 
 3            A.   Yes. 
 4            Q.   And diacetyl, lists 15,000 pounds of 
 5   diacetyl that was purchased? 
 6            A.   Yes. 
 7            Q.   As well as other chemicals that you 
 8   were examining as part of this process.  Why did 
 9   you want to know how many pounds of this -- of 
10   various materials were purchased, Doctor; what was 
11   the relevance of that? 
12            A.   It gives you an idea of the amount 
13   of material coming into the plant site. 
14            Q.   Doctor, I'm going hand you an 
15   exhibit marked as Exhibit 16, which are again from 
16   your record and files. 
17   (Deposition Exhibit No. 16 was marked for 
18   identification.) 
19                  MR. WOODSIDE:  Hold on one second.  
20            Q.   Are these your notes, Doctor, also? 
21            A.   Yes, they are. 
22            Q.   And is the date 7/6/95; is that how 
23   you read that? 
24            A.   July 6th, 1995. 
0074
 1            Q.   So in the same time period at the 
 2   beginning of your consultancy? 
 3            A.   Yes. 
 4            Q.   Okay.  There's a reference here to 
 5   Tom Colby, MD, can share information with him.  
 6   Who is Tom Colby? 
 7            A.   Tom Colby is a pathologist at the 
 8   University of -- at the Mayo Clinic, Scottsdale, 
 9   Arizona. 
10            Q.   And did you have some understanding 
11   that TasteMaker was working with Dr. Colby? 
12            A.   I think Dr. Colby had reviewed some 
13   of the slides on pathology tissue. 
14            Q.   From which plant? 
15            A.   From the Cincinnati plant. 
16            Q.   There's a reference in the second 
17   paragraph to England, organic compounds, 
18   TasteMaker plant, four people with problem.  
19                 Did TasteMaker have an English plant 
20   where there were problems? 
21            A.   I'd have to go by my notes.  That's 
22   what my notes say.  I don't recall whether they 
23   had a plant in England or not. 
24            Q.   Let's go on because it may refresh 
0075
 1   your recollection.  There are six people in spray 
 2   dry of which four are currently required to use 
 3   respirators, total -- I don't know, I can't read.  
 4            A.   Total number of employees, 50. 
 5            Q.   Is -- 
 6            A.   By telegraph adequate, that's a 
 7   spirometer. 
 8            Q.   England is more rigid about 
 9   protection? 
10            A.   Protection, correct. 
11            Q.   So this was referring to a problem 
12   that had apparently arisen that you were told 
13   about in the TasteMaker plant in England where 
14   they had four people with respiratory problems 
15   there; is that correct? 
16            A.   That apparently is correct, yes. 
17            Q.   Look over, would you, at the second 
18   page.  You're listing chemicals.  Now, who are you 
19   talking to at this time? 
20            A.   Whoever I was meeting with.  I was 
21   taking notes. 
22            Q.   This is something that some 
23   representative of TasteMaker was telling you? 
24            A.   Most likely, correct. 
0076
 1            Q.   All right.  Look over at diacetyl, 
 2   the description, it says -- Would you read your 
 3   notes.  
 4            A.   "Artificial butter flavor, no US 
 5   exposure limits.  This material is very 
 6   irritating.  Use of respirators with this 
 7   material." 
 8            Q.   So were they already using 
 9   respirators with this material? 
10            A.   Based on my notes, that's correct. 
11            Q.   And, Doctor, at this time when you 
12   were examining it, did you know anything about 
13   diacetyl? 
14            A.   No. 
15            Q.   So this was your first, no pun 
16   intended, exposure to this material? 
17            A.   That's correct. 
18            Q.   Let me hand you another exhibit, 
19   we'll mark as Exhibit 16.  
20                  MR. WOODSIDE:  Seventeen  .
21            Q.   Seventeen.  Doctor, before we move 
22   off this document, would you go to the last page.  
23            A.   Um-hmm. 
24            Q.   I can't read your writing on the 
0077
 1   last -- I think respirator use in 1990 required or 
 2   something? 
 3            A.   Required for respirator use, the 
 4   allyl isothiocyanates, methylmercaptan, 
 5   acetaldehyde, and diacetyl.  So respiratory use in 
 6   1993 required for those four chemical agents. 
 7            Q.   So your reading is, from 1993 on 
 8   those chemical agents were being protected against 
 9   by respirators in the plant? 
10            A.   Based on my notes, that's correct. 
11            Q.   Do you recall that that BASF study 
12   on diacetyl was dated in 1993? 
13                  MR. WOODSIDE:  Object.  He's 
14   indicated no familiarity with that.  
15                  MR. WARD:  Same objection.  
16            Q.   Do you recall that that was the 
17   date? 
18            A.   It was 1993. 
19            Q.   Let's mark this document as Exhibit 
20   16 -- 17, I'm sorry.  Let's mark this as exhibit 
21   17.
22   (Deposition Exhibit No. 17 was marked for 
23   identification.) 
24            Q.   This is September of '95, Doctor.  
0078
 1   What is this document; can you identify it? 
 2            A.   This was a project team meeting that 
 3   we had on September 14th, 1995. 
 4            Q.   And, Doctor, can you tell us what 
 5   this is all about; what's the purpose of a team 
 6   meeting, who's on the team? 
 7            A.   The plan was, what we did was, put 
 8   together a project team made up of individuals 
 9   from the University as well as internal people 
10   within the company to try to get a handle on 
11   what's going on at this particular plant site and 
12   how to solve the problem. 
13            Q.   And you have industrial hygienists 
14   on your team? 
15            A.   That was internal.  John 
16   Hochstrasser, H O C H S T R A S S E R, was the 
17   internal industrial hygienist.  Janet Dees was 
18   their nurse.  Nancy Higley was their flavor 
19   toxicologist. 
20            Q.   And she was at TasteMaker? 
21            A.   Yes.  Don Ball was from engineering, 
22   TasteMaker; and Mike Conner was human resources 
23   for TasteMaker.  Stephanie Thompson was legal, and 
24   Ed Steiger was really the chair of the management 
0079
 1   team. 
 2            Q.   Now, was Don Ball with TasteMaker? 
 3            A.   Yes, or everyone was from TasteMaker 
 4   at this initial meeting except me. 
 5            Q.   Okay, all right.  Now, there are 
 6   some -- There's on the second page, the draft, 
 7   there's an indication that what you were trying to 
 8   do at this first meeting in part was to try to 
 9   determine which chemicals in the plant 
10   were -- Start again.  
11                 Doctor, from looking at this 
12   document, it appears from reading your notes or 
13   reading the notes of this meeting that the goal of 
14   this meeting at least in part was to identify 
15   which chemicals in the plant were potentially 
16   hazardous and could be the cause of these 
17   respiratory problems in these wokers; is that 
18   correct? 
19            A.   That's correct. 
20            Q.   If you'll look over at the Raw 
21   Materials Sensitivity List.  
22            A.   Okay. 
23            Q.   What is this document intended to 
24   track? 
0080
 1            A.   I don't recall what Baker's List is.  
 2   Employee Sensitivity and Derma Health and Safety 
 3   Concern List, I don't recall as to how this was 
 4   put together, but this is a listing of the various 
 5   chemical agents that were used at the plant site. 
 6            Q.   Now, Doctor, I'm -- I am guessing 
 7   here, but does the fact that these are darker for 
 8   acetaldehyde, benzaldehyde, and diacetyl indicate 
 9   that you highlighted those chemicals among these 
10   hundreds of chemicals that were being examined 
11   within the plant? 
12                  MR. MACE:  Objection, assumes, 
13   calls for speculation.  
14                  MR. WOODSIDE:  Object, calls for 
15   speculation.  
16                  MR. WARD:  Join in that objection. 
17                  MR. WOODSIDE:  And there's been no 
18   foundation that he would know.
19                  MR. MACE:  Also no foundation he 
20   did it. 
21            A.   Very well could have been I 
22   highlighted it, yes.  I don't know one way or the 
23   other, though.  
24                  MR. WOODSIDE:  Objection. 
0081
 1            Q.   We'll have to have the originals 
 2   produced to us.  They just sent us the copies.  
 3   But my experience, when you highlight a document, 
 4   it generally is gray; is that your experience, 
 5   Doctor? 
 6            A.   Yes, it is. 
 7            Q.   And it does appear there is gray 
 8   highlighting on acetaldehyde, and benzaldehyde, 
 9   and diacetyl; is that correct? 
10            A.   That's correct. 
11            Q.   And does that appear to you to be 
12   three chemicals that you were concerned about to 
13   look further at within the plant? 
14                  MR. MACE:  Objection.  
15                  MR. WOODSIDE:  Objection, 
16   speculation, foundation.  
17            A.   Yes, I would assume that.  All three 
18   of these had all three stars across three columns. 
19            Q.   Which means what? 
20            A.   I don't recall what the Baker's List 
21   was anymore, but in relationship to Employee 
22   Sensitivity as well as Derma Health and Safety 
23   Concern, so I might have highlighted the ones that 
24   had three stars. 
0082
 1            Q.   And those are the only two with 
 2   three stars? 
 3                  MR. MACE:  Objection.  
 4            A.   I was just looking through it, 
 5   that's correct.  It appears that's the case, yeah.  
 6            Q.   Do you recall, Doctor, focusing 
 7   attention on all three chemicals during your work? 
 8            A.   We looked at every job position we 
 9   could at the plant site in relationship to 
10   potential exposures. 
11            Q.   And do you recall specifically 
12   addressing those three chemicals? 
13            A.   Yes. 
14            Q.   Doctor, let me show you what we'll 
15   mark as Exhibit 18, which again appears to be a 
16   "Raw Material Sensitivity List." 
17   (Deposition Exhibit No. 18 was marked for 
18   identification.)
19            A.   Yes. 
20            Q.   Again, the same three chemicals 
21   appear to be highlighted? 
22            A.   Yes. 
23            Q.   Doctor, this appears to be a 
24   sense -- Raw Chemical Sensitivity List with a 
0083
 1   different classification, the number of employees; 
 2   do you recall what that refers to? 
 3            A.   Most likely, it reflects the number 
 4   of employees with potential exposures to those 
 5   materials. 
 6            Q.   All right.  And is it true that 
 7   those three chemicals, acetaldehyde, benzaldehyde, 
 8   and diacetyl, are the three chemicals which had 
 9   the highest exposure in terms of numbers of 
10   employees within the plant? 
11                  MR. MACE:  Objection, 
12   mischaracterizes.  
13            A.   They certainly were the highest.  
14   There were a few people that had mustard seed oil 
15   with 16, but they were generally the highest, 
16   that's correct. 
17            Q.   Again, Doctor, what you were 
18   attempting to do in this initial work was trying 
19   to identify through deductive reasoning which 
20   chemicals to look at more closely; is that 
21   correct, or that could be the cause of the problem 
22   in the plant? 
23                  MR. MACE:  Objection, compound.  
24            A.   That's correct, look for clustering 
0084
 1   of cases around particular job tasks, around 
 2   particular exposure situations. 
 3            Q.   All right.  Let's look at your 
 4   notes, Doctor.  This is Exhibit 19. 
 5   (Deposition Exhibit No. 19 was marked for 
 6   identification.) 
 7            Q.   And these are dated December 13th, 
 8   1995; is that correct? 
 9            A.   That's correct. 
10            Q.   Doctor, would you look this over and 
11   see if you can refresh your recollection about -- 
12            A.   It appears to be a follow-up.  These 
13   are probably my notes from one of the team 
14   meetings that runs through the various areas, 
15   industrial hygiene, medical, legal, engineering, 
16   et cetera. 
17            Q.   Now, the first thing was -- at the 
18   IH meeting, as I read your note, was sampling for 
19   diacetyl; is that correct? 
20            A.   That's correct, diacetyl, mustard --
21            Q.   Seed? 
22            A.   -- mustard seed, the DMS, 
23   acetaldehyde, coordinate this with the worker.  
24   I'm not sure what that means. 
0085
 1            Q.   Was this actually given to the 
 2   hygienist, Mr. Hochstrasser?  Is that what his 
 3   name was, Hochstrasser?
 4            A.   More than likely, yes. 
 5            Q.   Did he, in fact, sample for 
 6   diacetyl? 
 7            A.   I think, I think he did.  I don't 
 8   recall specifically, but I think most likely, if 
 9   it was asked to be done, it was done. 
10            Q.   And you were also given 
11   pre-employment medical records; is that correct, 
12   for these employees? 
13            A.   That's correct.  We were setting up 
14   a preliminary surveillance program to identify who 
15   may be developing early changes in pulmonary 
16   function parameters.  So we wanted to enter any 
17   available pulmonary function tests into that 
18   database. 
19            Q.   Now, Doctor, your sampling for 
20   diacetyl is associated here under Item A with the 
21   respiratory training by Dr. McKay from your group; 
22   is that correct? 
23            A.   That's correct. 
24            Q.   And he's an industrial hygienist? 
0086
 1            A.   He's a toxicologist. 
 2            Q.   He's a toxicologist, but he does 
 3   respirator training? 
 4            A.   Yes. 
 5            Q.   And does he try to match the 
 6   respirator with the chemical involved? 
 7            A.   Absolutely. 
 8            Q.   And is that one of the reasons why 
 9   you were sampling for diacetyl and these other 
10   chemicals? 
11            A.   Looking for exposure levels, what 
12   are the exposure levels for these chemical agents 
13   in the work site. 
14            Q.   Okay.  And then over at Item G on 
15   the next page, "Management," would you read your 
16   writing into the record.  
17            A.   "Flavor company meeting of human 
18   resources.  At next meeting have a show and tell.  
19   Need a full-time person at all sites.  In United 
20   Kingdom only want to deal with one person rather 
21   than six people." 
22            Q.   So, Doctor, tell me what this refers 
23   to, if you can recall.  
24            A.   Most likely, management was looking 
0087
 1   at the other plant sites and how to bring the 
 2   other plant sites into the fold in relationship to 
 3   is something else going on at other plant sites. 
 4            Q.   So when this references "a show and 
 5   tell," what is it talking about, "at next meeting 
 6   have a show and tell"; was this internal to your 
 7   team?  Did you have -- Let me ask you this way.  
 8            A.   I'm not sure. 
 9            Q.   Doctor, did you have a show and tell 
10   for the work group at the TasteMaker plant? 
11            A.   In relationship to bronchiolitis 
12   obliterans?
13            Q.   Yes.  
14            A.   Most likely did at one point, but 
15   I'm not sure that refers to that.  I'm not sure 
16   what that refers to anymore.  And these notes 
17   don't necessarily reflect my thought process; 
18   somebody at the meeting might have been saying 
19   these bullet points. 
20            Q.   All right.  Let's mark this as 
21   Exhibit 20. 
22   (Deposition Exhibit No. 20 was marked for 
23   identification.)
24            A.   I can tell you what redacted means 
0088
 1   on this.  The person's name was removed from the 
 2   top. 
 3            Q.   I understand that, I understand 
 4   that, and that we don't object to.  
 5                 Doctor, this is "EHS Project 
 6   Specific Action Items, Confidential," dated 
 7   12/13/95, and if I don't miss my guess, that's 
 8   your dating on the top of that page; is that 
 9   right, that's your handwriting? 
10            A.   That's right. 
11            Q.   This is your copy.  And "EHS 
12   Project" refers to Environmental Health and 
13   Safety? 
14            A.   Yes. 
15            Q.   On the "Categorization of Raw 
16   Materials," September 21, review current raw 
17   material inventory versus base list, you think 
18   that those other documents we looked at were part 
19   of that process? 
20            A.   Most likely, that's correct.  
21                  MR. WOODSIDE:  Excuse me, I just 
22   didn't catch your question. 
23            Q.   Previously we looked at some lists 
24   that -- I think Exhibits 18 and 17 were lists and 
0089
 1   this refers to reviewing lists, and I'm just 
 2   wondering do they relate one to the other.  
 3                  MR. WOODSIDE:  Thank you.  
 4            Q.   Doctor, if you'll look over on the 
 5   October 24th entry under "Toxicology," it says, 
 6   "Develop block instructions for formula sheets 
 7   respirator use, acetaldehyde, diacetyl, mustard 
 8   seed oil, dimethyl sulfide, regardless of exposure 
 9   level."  
10            A.   Yes. 
11            Q.   Was it your recommendation that 
12   those chemicals required a respirator regardless 
13   of exposure level? 
14                  MR. WOODSIDE:  Object to the form 
15   of the question.  
16                  MR. MACE:  Objection.  
17                  MR. WARD:  Join that objection.  
18            A.   It most likely came from Nancy 
19   Higley and John Hochstrasser more than me.  I'm 
20   not a toxicologist.  My concern was we need to get 
21   a classification as to the potential toxicity of 
22   the chemical agents, stratify that list, and then 
23   start controlling. 
24            Q.   Okay.  And is that part of this 
0090
 1   process? 
 2            A.   Yes. 
 3            Q.   And diacetyl was included in that 
 4   group that you were concerned about, even at this 
 5   early date? 
 6            A.   The team together was concerned 
 7   about it, that's correct. 
 8            Q.   When we say "concerned about it," 
 9   the team involved, the employees that we 
10   previously identified from TasteMaker; is that 
11   correct? 
12            A.   I meant the team that was on this 
13   team project. 
14            Q.   Including yourself and the 
15   TasteMaker individuals that we previously 
16   identified? 
17            A.   That's correct. 
18            Q.   As well as Dr. McKay from your own 
19   institution? 
20            A.   That's correct. 
21            Q.   Okay.  And then if you'll look over 
22   at the October 13th "Exposure Assessment."  
23            A.   Okay. 
24            Q.   And it says "identify exposure 
0091
 1   opportunities for acetaldehyde, get list of 
 2   products by work area by process."  And then 
 3   there's handwritten notes that appear to be your 
 4   writing, "diacetyl, mustard seed, DMS, 
 5   acetaldehyde, will be looking at" this -- 
 6            A.   "At these flavors." 
 7            Q.   "At these flavors."  
 8            A.   Yes. 
 9            Q.   So that is your handwriting? 
10            A.   That is my handwriting. 
11            Q.   So you by handwriting added 
12   diacetyl, mustard seed, DMS, and acetaldehyde.  
13   What's DMS, dimethyl sulfide? 
14            A.   Yeah, I think that's correct. 
15            Q.   Yeah, okay, all right.  Now, Doctor, 
16   did anyone ask your team at the University of 
17   Cincinnati, anyone from TasteMaker, that is, to 
18   follow up to find out the specific toxicities of 
19   these chemicals in their plant? 
20            A.   No, we weren't asked to do that. 
21            Q.   Could you have done that? 
22            A.   We could have.  It would have been a 
23   very work-intensive process for us.  The list was 
24   quite long. 
0092
 1            Q.   But let me ask you, Doctor, you have 
 2   told us previously that your group is pretty 
 3   effective at finding literature in various places 
 4   when you're doing this kind of work.  You found 
 5   that '85 NIOSH report; is that right? 
 6            A.   That's correct. 
 7            Q.   Would you have searched the world's 
 8   literature for other reports regarding these 
 9   chemicals if you had been asked to further specify 
10   which chemicals were causing this disease at this 
11   plant? 
12                  MR. MACE:  Objection.  
13            A.   Yes, we could have done that, yes. 
14            Q.   And did anyone ask you to do that? 
15            A.   No, that was not one of our job 
16   tasks. 
17            Q.   Were you even provided material 
18   safety data sheets for these products? 
19            A.   I recall that, when we looked 
20   through all of the various different chemical 
21   agents that the plant site was using, the vast 
22   majority of the agents did not have any material 
23   safety data sheets.  They weren't looked at from 
24   an inhalation perspective.  They were mainly from 
0093
 1   an ingestion perspective. 
 2            Q.   Let's talk about that for a minute.  
 3   It's going to come up in these documents 
 4   ultimately, but since you brought it up, Doctor, 
 5   what is the so-called FEMA GRAS list? 
 6            A.   Generally Regarded As Safe in 
 7   relationship to ingestion. 
 8            Q.   And, Doctor, is there some confusion 
 9   that you've commented about that in the general 
10   public, that something generally regarded as safe 
11   is not necessarily safe to breathe? 
12                  MR. WOODSIDE:  Objection, 
13   foundation, speculation. 
14            Q.   Let me strike that.  Let me rephrase 
15   it.  
16                 Doctor, have you commented on the 
17   FEMA GRAS list in terms of what it is and what it 
18   isn't -- 
19                  MR. WOODSIDE:  Objection. 
20            Q.   -- in your public speaking and 
21   writing previously? 
22            A.   Yes. 
23            Q.   Tell the jury about that; would you? 
24            A.   What is considered safe from an 
0094
 1   ingestion perspective doesn't necessarily mean 
 2   it's safe from an inhalational perspective.  
 3   They're two different organ systems. 
 4            Q.   And, Doctor, had these chemicals 
 5   based upon your consultation with TasteMaker been 
 6   evaluated for their respirational hazard? 
 7            A.   The vast majority of them had not, 
 8   as far as I'm aware. 
 9            Q.   And did anyone from TasteMaker ask 
10   you to evaluate these chemicals either for their 
11   own employees or for their customers' employees to 
12   determine whether or not they were hazardous? 
13            A.   No. 
14            Q.   Did you have an understanding, 
15   Doctor, that TasteMaker was preparing flavors for 
16   use by other companies; was that the nature of 
17   their business? 
18            A.   Yes. 
19            Q.   And so you did have an understanding 
20   that they did have customers who would be 
21   utilizing these flavors in their businesses as 
22   well; didn't you? 
23            A.   Yes. 
24            Q.   And did you in your tours of the 
0095
 1   plant see that these products were being shipped 
 2   to other users of these products? 
 3            A.   I don't recall that specifically, 
 4   but my assumption is that they were a food 
 5   manufacturing -- food flavor manufacturing company 
 6   that would ship the flavoring agents to other food 
 7   producers. 
 8            Q.   Did you ever see the labels that 
 9   tell their users that they're generally regarded 
10   as safe? 
11            A.   No, I haven't. 
12            Q.   Okay.  Doctor, now, there was no 
13   MSDS documents in your file.  Did your group have 
14   to return those to TasteMaker -- 
15                  MR. MACE:  Objection, assumes. 
16            Q.   -- at the end of your consultancy? 
17            A.   You know, I don't recall ever seeing 
18   material safety data sheets; we might have.  I 
19   don't have them in my possession right now, so if 
20   I had them, I don't know what happened to them.  I 
21   might have returned them or we might not have 
22   received them. 
23            Q.   Do you recall returning documents in 
24   general? 
0096
 1            A.   No. 
 2            Q.   Let me hand you what we'll mark as 
 3   "Draft Presentation Safety Meeting," February 8th, 
 4   1995, and ask if this is the safety presentation 
 5   that's referred to in your 10/13th/1995 note where 
 6   you say at next meeting have show and tell? 
 7            A.   It very well could be, yes. 
 8   (Deposition Exhibit No. 21 was marked for 
 9   identification.) 
10            A.   Yes, it is. 
11            Q.   What was the purpose of 
12   this -- Review it for a moment and -- 
13                  MR. MACE:  I don't know if you 
14   noted for the record, that's Exhibit 21.  
15            Q.   I'm sorry, it is.  Doctor, we'll 
16   mark this as Exhibit 21.  And just so we have it 
17   in sequence, then, Doctor, is this the safety 
18   presentation that was noted in a previous exhibit 
19   as the show and tell that would be presented at a 
20   future safety meeting? 
21            A.   Yes. 
22            Q.   Describe for us, would you, please, 
23   what the show and tell was.  
24            A.   It was management's approach to 
0097
 1   inform the employees as to what was going on and 
 2   what corrective measures were going to be taken or 
 3   are being taken. 
 4            Q.   And was this something that your 
 5   group prepared? 
 6            A.   No, we did not prepare this.  This 
 7   was prepared internally. 
 8            Q.   All right.  Did you have any input 
 9   in regard to the items that were presented? 
10            A.   We most likely reviewed them, but I 
11   don't think I made any input in relationship to 
12   changes. 
13            Q.   Okay.  Look over at Item 9, if you 
14   would.  "Why a Safety CFT"; do you see that? 
15            A.   Yes. 
16            Q.   What is that, what is a safety CFT? 
17            A.   I don't know what CFT stands for 
18   anymore. 
19                  MR. WOODSIDE:  Could we take a 
20   2-minute break.  
21                  MR. MCCLAIN:  Yes.  We're off the 
22   record.  
23                  THE VIDEOGRAPHER:  I'm off. 
24                                     (Brief recess.)
0098
 1   (Mr. Eagleman not present.)  
 2                  THE VIDEOGRAPHER:  You're back on 
 3   the record now.  
 4   BY MR. MCCLAIN:  
 5            Q.   Doctor, looking at Item 9, "Why a 
 6   Safety CFT," if you look up at Item 8, it says 
 7   "Safety Cross Functional Team"; do you see that? 
 8            A.   I do see that. 
 9            Q.   And it says recognize "we are a 
10   chemical company, one area of risk is exposure to 
11   materials"; do you see that? 
12            A.   That's correct. 
13            Q.   Doctor, we're going to come to this 
14   note in a minute, but you too made that 
15   observation to FEMA; is that right? 
16            A.   That's correct. 
17            Q.   And does this relate back to your 
18   GRAS point, that these really are chemicals, not 
19   food? 
20            A.   That's correct. 
21                  MR. WOODSIDE:  Object to the form 
22   of the question.  
23            Q.   Doctor, is it your view that 
24   essentially in these production processes we're 
0099
 1   dealing with chemicals, not food? 
 2            A.   That's correct.  The production 
 3   process is complex.  Multiple materials are coming 
 4   together, they're being heated, they're being 
 5   steamed, they're being sprayed, they're being 
 6   dried; and, therefore, it really is a chemical 
 7   company rather than a food manufacturing company. 
 8            Q.   Look over "Review Raw Material 
 9   Safety," Item 14.  
10            A.   Okay. 
11            Q.   "Review Raw Material Safety.  Added 
12   toxicology review, raw materials, intermediates.  
13   Reduced usage of certain chemicals where possible 
14   or higher degree of control over use of chemicals 
15   such as:  Acetaldehyde, dimethyl sulfide, 
16   diacetyl, mustard seed oil"; do you see that? 
17            A.   Yes. 
18            Q.   Doctor, do you know who selected 
19   those four chemicals to highlight in regard to 
20   reviewing the toxicology of these materials and 
21   reducing their -- reducing the exposure to them in 
22   the plant? 
23            A.   Most likely, it was a team 
24   consensus, but more likely than not, it was coming 
0100
 1   from the flavor toxicologist. 
 2            Q.   So this was somebody within 
 3   TasteMaker; is that correct? 
 4            A.   That's correct. 
 5            Q.   Dr. Higley; was it? 
 6            A.   More likely than not. 
 7            Q.   And this is as early as February of 
 8   1996, correct --
 9            A.   That's correct. 
10            Q.   -- that these were being identified?  
11                 Did Dr. Higley ever express any 
12   doubt that diacetyl was a hazardous material in 
13   use in their plant? 
14                  MR. MACE:  Objection.  
15            A.   Apparently, it kept coming up on the 
16   list.  I don't recall specific comments she would 
17   have made about diacetyl. 
18            Q.   Doctor, did she -- As the 
19   toxicologist, did she ever present to you the 
20   toxicological data that she was basing her opinion 
21   on that this was a hazardous material? 
22            A.   I don't recall that one way or the 
23   other. 
24   (Mr. Eagleman returned to the room.)
0101
 1            Q.   Let's mark this as Exhibit 22. 
 2   (Deposition Exhibit No. 22 was marked for 
 3   identification.) 
 4            Q.   This is the "Respirator Fit Testing 
 5   & Training Observations at TasteMaker."  
 6   Previously we had identified that Dr. McKay from 
 7   your organization was going to do that.  Is this 
 8   the -- Does this, in fact, reflect that he did do 
 9   it? 
10            A.   Yes. 
11            Q.   And if you'll look back here, 
12   attached to it is a document that we've previously 
13   seen, "EHS Project Specific Action Items, 
14   Confidential," on the back.  
15            A.   Yes. 
16            Q.   Under "Toxicology," "Develop block 
17   instructions for formula sheets, respirator use, 
18   acetaldehyde, diacetyl, mustard seed oil, dimethyl 
19   sulfide, regardless of exposure levels."  
20            A.   Yes. 
21            Q.   Was that, in fact, the 
22   recommendation that the team made to TasteMaker 
23   regarding how respirator protection should be 
24   handled at the TasteMaker plant? 
0102
 1                  MR. MACE:  Objection.  
 2            A.   That's my assumption, yes. 
 3            Q.   Now, Doctor, at some point during 
 4   your consultancy with TasteMaker, you previously 
 5   told us that you were informed about FEMA; is that 
 6   correct? 
 7            A.   Yes, I was. 
 8            Q.   Let me show you what we've marked as 
 9   Exhibit 23. 
10   (Deposition Exhibit No. 23 was marked for 
11   identification.) 
12            Q.   That's all the copies I have.  
13                  MR. WOODSIDE:  I'm sorry, I've got 
14   it.  
15            Q.   Let's back up.  Let's mark this as 
16   Exhibit 24, and then we'll come back to 23.  You 
17   can just keep it right there because we'll come 
18   right back to it. 
19   (Deposition Exhibit No. 24 was marked for 
20   identification.) 
21            Q.   Looking at Exhibit 24, Doctor, are 
22   these your handwritten notes? 
23            A.   They are my handwritten notes. 
24            Q.   And they reference "FEMA" at the 
0103
 1   top; is that correct? 
 2            A.   Yes. 
 3            Q.   Does this appear to be the first 
 4   briefing that you had regarding FEMA and its 
 5   function? 
 6            A.   Yes. 
 7            Q.   It says "Daniel Thompson," attorney, 
 8   Flavors Manufacturers' Association there; do you 
 9   see that reference? 
10            A.   Yes, I do. 
11            Q.   Who was that? 
12            A.   I assume that was an attorney 
13   representing the FEMA. 
14            Q.   Did you ever meet with an attorney 
15   that represented FEMA? 
16            A.   We had a meeting with FEMA.  I don't 
17   recall the city, I think Washington.  And I think 
18   there was an attorney at the meeting.  I don't 
19   recall the names. 
20            Q.   Was the purpose of your meeting to 
21   inform them about the results of your finding at 
22   the TasteMaker plant? 
23            A.   Yes. 
24            Q.   And was part of that your suggestion 
0104
 1   that this was a broader problem than just one 
 2   plant in this industry in light of the fact that 
 3   other flavor manufacturers were using these same 
 4   chemicals? 
 5                  MR. MACE:  Objection to "was" in 
 6   place of "could be."  
 7            A.   It was my impression that this very 
 8   well may not be isolated to this one particular 
 9   plant site, that the other flavoring companies 
10   should be looking at their plant site to see if 
11   they have a similar problem. 
12            Q.   Okay.  And just so that we're clear, 
13   what you had determined was that that 
14   bronchiolitis obliterans was being caused -- was 
15   being seen in this population that was 
16   manufacturing flavors for TasteMaker; is that 
17   correct? 
18            A.   That's correct. 
19            Q.   And you believed that other 
20   manufacturers of flavors either could or would see 
21   this same disease process if they were using the 
22   same chemicals? 
23                  MR. MACE:  Objection, compound.  
24            A.   Same chemicals or additional 
0105
 1   chemicals.  The question always would come up, is 
 2   this a problem that's unique to this particular 
 3   manufacturing site or is it an issue that may 
 4   exist in other flavor manufacturing areas.  And so 
 5   we wanted to raise the issue that this may not be 
 6   related to just this one plant site.  The other 
 7   manufacturers need to look to see if they have a 
 8   similar issue. 
 9            Q.   And, Doctor, was that based upon 
10   your many years of experience with other 
11   industries, that if the same chemicals are used in 
12   similar ways, that disease process appear in plant 
13   after plant? 
14                  MR. MACE:  Objection. 
15                  MR. WOODSIDE:  Objection.
16            A.   If the same chemicals are used in 
17   the same manner, same concentration, same 
18   quantity, the likelihood is that there will be 
19   problems at other plant sites, that's correct. 
20            Q.   And, Doctor, can you just give us 
21   some examples through history of chemicals or 
22   minerals or other things where this phenomenon has 
23   been observed by public health physicians such as 
24   yourself? 
0106
 1                  MR. MACE:  Objection.  
 2            A.   A risk to any exposure is related to 
 3   the inherent toxicity of the material times the 
 4   amount the person is exposed to it.  So you have 
 5   an inherent toxic material, say asbestos, for 
 6   example, and you're an insulator, it doesn't 
 7   matter whether you're an insulator in San 
 8   Francisco or Manhattan, if the job task is done 
 9   the same way, the risk factor is the same. 
10            Q.   And, Doctor, that's a good example.  
11   If, in fact, the material is toxic to workers in 
12   manufacturing materials, it can also be toxic to 
13   consumers, assuming exposures are at the same 
14   levels; is that correct? 
15                  MR. WOODSIDE:  Objection. 
16                  MR. MACE:  Objection. 
17                  MR. WARD:  Object to the form of 
18   the question.  
19            A.   If they're working with the same 
20   material in the same concentration, the same 
21   manner, the answer is yes. 
22            Q.   And so were you trying to raise this 
23   host of issues in your meeting with FEMA, that if 
24   these materials are toxic to the materials at 
0107
 1   TasteMaker, they could potentially be toxic in a 
 2   wide variety of settings? 
 3                  MR. MACE:  Objection.  
 4                  MR. WARD:  Objection to form of the 
 5   question.  
 6            A.   I was really directing that to the 
 7   other plant sites where other people were involved 
 8   in the manufacturing process. 
 9            Q.   All right.  You point out that 
10   Flavor & Extract Manufacturers Association, at the 
11   time, has over a hundred members; is that right? 
12            A.   Yes. 
13            Q.   Do you see that? 
14            A.   Yes. 
15            Q.   And do you see that the main 
16   competitors on fragrance and flavors, IFF, 
17   International Flavors & Fragrances are the largest 
18   global, you were told; do you see that down here, 
19   "main competitors on fragrance and flavors"? 
20            A.   I see, yes, that's correct. 
21            Q.   And that you were told by the lawyer 
22   for the Flavor & Extract Manufacturers' 
23   Association? 
24            A.   Either I was told that by TasteMaker 
0108
 1   or in my meeting with FEMA. 
 2            Q.   And was it your understanding that 
 3   IFF was a member of the Flavor & Extract 
 4   Manufacturers Association? 
 5                  MR. WOODSIDE:  Object, foundation.  
 6            A.   My assumption is that's the case. 
 7                  MR. WOODSIDE:  Move to strike.  
 8   Speculative, no foundation.  
 9                  MR. WARD:  Join.  
10            Q.   Do you see -- Would you please read 
11   that John Hallagan, attorney; do you see that note 
12   that you have written there? 
13            A.   Yes.  "Attorney, FEMA staff at both 
14   committees, employed by the law firm. 
15            Q.   Well, let's get the context.  Let's 
16   back up.  Safety evaluation central committees; do 
17   you see that note? 
18                  MR. MACE:  Objection.  You may have 
19   misread it.  
20            A.   Yes, I see that. 
21            Q.   "Safety evaluation control 
22   committee"; did I read that correctly, your note? 
23            A.   It's "control committee," I think. 
24            Q.   "Control committee"? 
0109
 1            A.   Yes. 
 2            Q.   Okay.  And would you read the rest 
 3   of the note.  
 4            A.   "Coke, Procter & Gamble, IFF, Pepsi, 
 5   TasteMaker, focuses on ingestion, FEMA expert 
 6   panel started in the '50's and '60's, GRAS as 
 7   recognized by FDA." 
 8            Q.   "Six members sit on this committee"? 
 9            A.   "Six members sit on this committee, 
10   SECC." 
11            Q.   Which is Safety Evaluation Control 
12   Committee? 
13            A.   Yes. 
14            Q.   And the six members are listed at 
15   the top? 
16                  MR. MACE:  Five. 
17            A.   I see five members listed.  I don't 
18   know who the sixth was.  
19                  MR. WOODSIDE:  Object.  I don't 
20   think that is what that says.  
21                  MR. MACE:  Object, too.  
22            Q.   Okay.  Well, is that the way you 
23   read your own note? 
24            A.   That's how I would read this note. 
0110
 1            Q.   And then it says Attorney John 
 2   Hallagan, attorney, FEMA staff at both committees 
 3   employed by the law firm? 
 4            A.   Yes. 
 5            Q.   So do you read your note to say that 
 6   the staff members of the FEMA committee were 
 7   employed by a law firm? 
 8            A.   That's what my written note would 
 9   say. 
10            Q.   Did that seem kind of strange to 
11   you? 
12            A.   The legal profession has its hands 
13   in a lot of things these days, so why there was 
14   legal representation at these committees, I don't 
15   know one way or the other, other than for 
16   confidentiality issues probably. 
17            Q.   Yeah.  You specifically for your 
18   work were made to sign a confidentiality statement 
19   that said you had to give everything back and you 
20   had to have pre-approval before you published.  So 
21   you've had some experience with these lawyers and 
22   these committees; haven't you, Doctor? 
23            A.   I have. 
24            Q.   "Board of Governors" -- 
0111
 1                  MR. WOODSIDE:  Wait.  Just object 
 2   to that question because you said "these lawyers," 
 3   and so I don't know who you're talking about, 
 4   "these lawyers."  
 5                  MR. MCCLAIN:  I'm talking about 
 6   lawyers in general that inhabit these committees.  
 7                  MR. MACE:  Objection.  Move to 
 8   strike.  
 9                  MR. WOODSIDE:  Same objection.  
10                  MR. WARD:  I join in that 
11   objection.  
12                  MR. MCCLAIN:  You resemble that 
13   objection; is that what you said, Steve?  We 
14   couldn't hear that quite.  
15                  MR. WARD:  I said I join in that 
16   objection.  
17                  MR. MCCLAIN:  Oh, I'm sorry, it 
18   wasn't as clear.  
19                  MR. WARD:  As clear as some of your 
20   questions, Ken.  
21                  MR. MCCLAIN:  No, I'm sure that 
22   that's true.  
23   BY MR. MCCLAIN:  
24            Q.   Okay.  Doctor, let's turn our 
0112
 1   attention to the "Board of Governors" reference.  
 2            A.   Okay. 
 3            Q.   These people can commit money for 
 4   projects.  The company -- Would you read the rest 
 5   of that.  
 6            A.   The companies that are the most 
 7   active are members.  The balance is made up 
 8   usually of scientists, usually a scientist is a 
 9   member of this, usually one or two people.  And 
10   next page, Dick Hall was a scientific consultant, 
11   and he was a liaison between the safety committee 
12   and the board of governors.  I guess Dick was, 
13   Dick Hall or Dr. Hall was, a toxicologist. 
14            Q.   It says TasteMaker -- Would you read 
15   the purpose of the meeting.  
16            A.   The purpose was TasteMaker was 
17   obligated to notify the industry in relatioship to 
18   public health issues, legal issues, and business 
19   risk issues. 
20            Q.   And was that the purpose of why you 
21   were there, as far as you understood? 
22            A.   I was there in relationship to 
23   public health issues. 
24            Q.   And so TasteMaker saw it as their 
0113
 1   obligation to inform the rest of the industry, as 
 2   you understood it; was the purpose for you being 
 3   there at FEMA? 
 4            A.   That's correct. 
 5            Q.   And Daniel Thompson and John 
 6   Hallagan, the attorneys for FEMA, are listed here, 
 7   and then what's Nancy and Mike? 
 8            A.   Nancy Higley and Mike -- I'm not 
 9   sure of Mike's last name, most likely were from 
10   TasteMaker. 
11            Q.   Okay.  And they informed Thompson 
12   and Hallagan of three cases of BO initially and 
13   now five cases of BO, right? 
14            A.   That's correct. 
15            Q.   Bronchiolitis obliterans? 
16            A.   That's right. 
17            Q.   And it says educate on bigger 
18   issues, education -- 
19            A.   And surveillance. 
20            Q.   And then objective, needs reason to 
21   take to industry board.  Why is this an industry 
22   issue.  Do you see that? 
23            A.   Yes. 
24            Q.   Now, Doctor, did you see in the 1997 
0114
 1   report that it said that it had been reported on a 
 2   confidential basis that this was occurring, that 
 3   bronchiolitis obliterans was occurring in the 
 4   flavoring industry? 
 5            A.   Yes. 
 6                  MR. WARD:  Objection.  That's not 
 7   the 1997 report.  
 8            Q.   Doctor, do you recall in the 19 -- 
 9   in the 2002 report they indicate that the 1997 
10   report was initiated based upon your contact with 
11   FEMA? 
12            A.   That's my understanding, yes. 
13                  MR. MCCLAIN:  Okay.  Let's break 
14   here, Doctor.  They need to change the tape.  
15                  THE VIDEOGRAPHER:  One second, 
16   please.  We're going off the record.  One second, 
17   please. 
18                                     (Brief recess.) 
19                  THE VIDEOGRAPHER:  Tape 2, you're 
20   back on the record.
21   BY MR. MCCLAIN:  
22            Q.   So, Doctor, is it fair to say that, 
23   when you reported these matters to FEMA, that you 
24   now know that the '97 conference was their attempt 
0115
 1   to notify their members about the hazards of 
 2   bronchiolitis obliterans that you had found? 
 3                  MR. WOODSIDE:  Objection. 
 4                  MR. MACE:  Objection, foundation.  
 5            A.   I know that now. 
 6            Q.   And, Doctor, do you know whether or 
 7   not FEMA or any of their member companies 
 8   attempted to notify their customers who used these 
 9   same chemicals in the same way in industrial 
10   processes in their own plants about these hazards 
11   that you had alerted FEMA to? 
12                  MR. MACE:  Objection, misstates the 
13   evidence, mischaracterization, assumes facts not 
14   in evidence.  
15                  MR. WOODSIDE:  Same objection.  
16            A.   I have no knowledge one way or the 
17   other what FEMA did with that information. 
18            Q.   Do you know whether TasteMaker ever 
19   notified any of their customers about the hazards 
20   that you had identified existed in their own 
21   plant? 
22            A.   No, I do not. 
23            Q.   Do you know whether IFF ever 
24   notified their customers of any hazards that were 
0116
 1   identified in the TasteMaker plant? 
 2                  MR. WOODSIDE:  Object.  How would 
 3   he -- There's been no foundation that he has any 
 4   idea what IFF did or ever did.  
 5            Q.   Do you note from your record that 
 6   IFF was identified in your meeting with FEMA? 
 7            A.   Yes. 
 8            Q.   And did anyone ever tell you from 
 9   FEMA that IFF was notifying their customers about 
10   the hazards of bronchiolitis obliterans in the 
11   food industry? 
12            A.   No. 
13            Q.   Now, if you'll look back at Exhibit 
14   23, Doctor, and, Doctor, it indicates maybe 
15   this -- I think that these documents go hand in 
16   hand, but I'm not sure.  
17                 Perhaps, this was the outline of 
18   your discussion and these were your notes from the 
19   discussion, but how do you put them together? 
20            A.   Most likely, that's the case. 
21            Q.   Okay.  And it says:  "Briefing with 
22   FEMA, September 27th, 1996.  Objective:  Request 
23   FEMA to take steps to investigate whether 
24   bronchiolitis obliterans is a flavor industry 
0117
 1   issue on grounds that TasteMaker experience 
 2   indicates that a workplace exposure, probably a 
 3   chemical, has caused a rare disease in certain 
 4   workers and the exposure most likely is not unique 
 5   to TasteMaker, but is something that could be more 
 6   generally present in workplaces of other flavor 
 7   manufacturers."  
 8            A.   That's correct. 
 9            Q.   Did I read that accurately? 
10            A.   You did. 
11            Q.   And is that the purpose of the 
12   meeting that we've been discussing? 
13            A.   Yes. 
14            Q.   Going down to "Discussion Points," 
15   they identified you and your qualifications and 
16   experience; do you recall that they did that? 
17            A.   No, but if that's what it says, 
18   that's what they did. 
19            Q.   Okay.  It says that you had a 
20   conclusion with a reasonable degree of medical 
21   probability that the disease is work-related; is 
22   that correct? 
23            A.   Yes, that's correct. 
24            Q.   And that was the bronchiolitis 
0118
 1   obliterans at the TasteMaker plant? 
 2            A.   Yes. 
 3            Q.   And based on your understanding of 
 4   information from the company, that you believed 
 5   that the workplace exposure was not unique to 
 6   TasteMaker; is that correct? 
 7            A.   Yes. 
 8            Q.   And Nancy is Nancy Hickby -- Or how 
 9   do you say her name? 
10            A.   Higley. 
11            Q.   Higley, I'm sorry.  Nancy Higley to 
12   support what knowledge of chemicals used, products 
13   manufactured, and processes utilized? 
14            A.   That's correct. 
15            Q.   And so, do you think that that -- 
16   Strike that.
17                 What was this about? 
18            A.   Nancy was, Dr. Higley was, along at 
19   this meeting, and she was supporting my opinion 
20   based on her knowledge of the chemicals that were 
21   being used and the products manufactured and the 
22   processes utilized. 
23            Q.   And what was that opinion, Doctor? 
24            A.   That some of these chemical agents 
0119
 1   did represent potential hazard in relationship to 
 2   inhalational exposures.
 3                  MR. MCCLAIN:  Steve, we're back on 
 4   the record.  
 5                  MR. WARD:  Okay, I'm ready.  
 6   BY MR. MCCLAIN:  
 7            A.   And that the chemical agents that 
 8   are being utilized are not necessarily unique to 
 9   TasteMakers. 
10            Q.   Doctor, was it your expectation that 
11   when you were talking to FEMA and to TasteMaker 
12   that they would utilize the information that you 
13   were providing to protect their own workers? 
14            A.   It was my opinion that additional 
15   studies should be done to determine whether this 
16   is a problem that's unique to Cincinnati 
17   TasteMaker or representative of a problem that may 
18   be at other flavor manufacturing facilities.  That 
19   was my real purpose. 
20            Q.   Look with me over at Exhibit 25, 
21   Doctor.  We're going to mark that. 
22   (Deposition Exhibit No. 25 was marked for 
23   identification.) 
24            Q.   Doctor, this appears to be your 
0120
 1   writing.  
 2            A.   It is my writing. 
 3            Q.   And it refers to John and Dan, the 
 4   two lawyers that we saw in the previous documents; 
 5   do you see that? 
 6            A.   Yes. 
 7            Q.   And in your previous notes you refer 
 8   to Daniel Thompson and John Hallagan, the two 
 9   lawyers? 
10            A.   Yes. 
11            Q.   Are these further notes from your 
12   meeting with FEMA? 
13            A.   Yes, yes, they appear to be my notes 
14   from the meeting, yes. 
15            Q.   And it says, "Survey the industry to 
16   look for disease."  
17            A.   Yes. 
18            Q.   What's that next reference, word 
19   out? 
20            A.   Should be work out in an organized 
21   manner or organized way, worker comp. reports in 
22   relationship to duty to warn. 
23            Q.   What does that mean? 
24            A.   If you look at the workers' 
0121
 1   compensation reports and you have plant sites that 
 2   have respiratory disease and it's related to 
 3   bronchiolitis obliterans, then there's a duty to 
 4   let people know about it. 
 5            Q.   And were these steps -- All of these 
 6   were steps that you were suggesting needed to be 
 7   taken or you were suggesting should be taken? 
 8            A.   These are the various processes that 
 9   you could go through to look at other plant sites 
10   to see if there's a problem that's going on. 
11            Q.   Okay.  Then go on to the next one, 
12   "FEMA."  
13            A.   FEMA, if you collect the 
14   information, they'll have to act on this 
15   information. 
16            Q.   Okay.  Why did you note that? 
17            A.   Well, if you identify a health 
18   hazard, you have to act on it. 
19            Q.   And you told FEMA that? 
20            A.   Yes. 
21            Q.   You told FEMA that, if you collect 
22   this information, you're going to have to act on 
23   it; is that right?
24            A.   That's right. 
0122
 1            Q.   Do you have any evidence that FEMA 
 2   ever went out and collected the information? 
 3            A.   I did not hear from FEMA after this 
 4   meeting, no. 
 5            Q.   So, Doctor, just so that I'm clear, 
 6   you told FEMA, look, you ought to survey the 
 7   industry to look for disease; is that right? 
 8            A.   Yes. 
 9            Q.   And you said, you need -- 
10            A.   Work it out in an organized manner. 
11            Q.   Do it in an organized fashion, and 
12   look at the workers' compensation reports from all 
13   of your plants and see whether there's any other 
14   cases of this, but if you do that, you're going to 
15   have to warn everybody about it; that's what you 
16   told them? 
17            A.   That's what my notes say, that's 
18   correct. 
19            Q.   And after that, as far as you know, 
20   they did nothing; is that correct? 
21            A.   I have had no further contact with 
22   FEMA after that meeting. 
23            Q.   So they never asked you to do any of 
24   these things? 
0123
 1            A.   No. 
 2            Q.   Now, we do know that they did have a 
 3   meeting about respiratory protection for their own 
 4   workers; is that right? 
 5            A.   Was that the 1997 meeting?
 6            Q.   Yes.  
 7            A.   Yes. 
 8            Q.   All right.  But as far as you know, 
 9   based upon anything that you've seen or been told 
10   about, did FEMA or any of its members ever warn 
11   any of their customers about the hazards of 
12   working around these chemicals? 
13                  MR. MACE:  Objection.  Read it back 
14   to me, Lisa.  
15                  MR. WARD:  Objection to the form of 
16   the question.
17            A.   I have no knowledge of -- 
18                  MR. MACE:  I've asked her to read 
19   it back, Doctor, if you could wait a minute.  
20   (Record read back by the court reporter.) 
21                  MR. WOODSIDE:  Objection.
22                  MR. MACE:  Objection.
23                  MR. WARD:  Objection to form of the 
24   question, lack of foundation, speculation.  
0124
 1            A.   I have no knowledge that FEMA or 
 2   TasteMaker notified their customers. 
 3            Q.   Look at, "Accept these are chemical 
 4   companies and there are no PEL's set"; what did 
 5   you mean by that, Doctor? 
 6            A.   That rather than looking at these 
 7   materials from a GRAS perspective, they need to 
 8   look at them from a chemical exposure perspective 
 9   in relation to the lungs, and there were no 
10   permissible exposure limits set for the majority 
11   of the materials they were using. 
12            Q.   Did you tell FEMA that; is that who 
13   you're telling? 
14            A.   Yes. 
15            Q.   And then you say, read your next 
16   entry, please.  
17            A.   Start with the current committee, 
18   and that would be Nancy Higley.  I think Nancy 
19   Higley was a member of that committee.  "And then 
20   potentially expand to additional committees." 
21            Q.   Okay.  And Nancy Higley was at 
22   TasteMaker and she was a member of the current 
23   committee at FEMA; is that right? 
24            A.   My assumption is that's correct. 
0125
 1            Q.   Notification by FEMA that there 
 2   is -- 
 3            A.   That there is an issue and is 
 4   assigned to the Nancy Higley committee. 
 5            Q.   Okay.  And then it says use John 
 6   Doyle at University of Kentucky as consultant? 
 7            A.   United Kingdom. 
 8            Q.   Oh, United Kingdom.  
 9            A.   He's an MD, Ph.D. 
10            Q.   Why use him? 
11            A.   I don't know the gentleman.  
12   Somebody must have raised his name at this 
13   meeting.  Was he the toxicologist?  I don't know 
14   who the gentleman is.  I don't know who John Doyle 
15   is.  Perhaps that name came up through somebody 
16   from the team. 
17            Q.   If you go back over to the next, go 
18   over to the next page under "TasteMaker, NIOSH 
19   case report," is that that 1996 case report from 
20   NIOSH? 
21            A.   That's correct. 
22            Q.   So you made FEMA aware of the NIOSH 
23   case report in this meeting? 
24            A.   Yes. 
0126
 1            Q.   "Process and content" and then you 
 2   have "healthy worker effect."  Would you read the 
 3   rest of your note and tell us what that is about? 
 4            A.   Healthy worker effect is something 
 5   we can see when we do studies in industrial 
 6   settings.  Healthy worker effect is in regard to 
 7   the healthy worker stays at the job task and the 
 8   unhealthy worker leaves for health reasons.  So 
 9   sometimes when you review a site situation, you 
10   have to allow for the only survivors at the plant 
11   site are the healthy workers.  
12                 So how that could be impacted, could 
13   have a loss of job because of asthma.  In 
14   Cincinnati the cases that we were seeing were 
15   being misdiagnosed as asthma, and that was one of 
16   the problems in the community. 
17            Q.   Let me just stop you just for a 
18   minute, Doctor.  The cases at the TasteMaker plant 
19   were misdiagnosed as asthma? 
20            A.   With some of the community 
21   physicians, they were being diagnosed as asthma. 
22            Q.   Is that something that needs to be 
23   guarded against in your view when examining people 
24   with bronchiolitis obliterans, that someone who 
0127
 1   perhaps is not as experienced as you are or not an 
 2   occupational physician might misdiagnose a case as 
 3   asthma? 
 4                  MR. WOODSIDE:  Object to the form, 
 5   objection.  
 6                  MR. MACE:  Objection.  
 7            A.   I think that even happened with 
 8   Mr. Campbell.  I think he went to Cleveland Clinic 
 9   and they put him on steroids to see if he had 
10   reverse airway obstruction. 
11            Q.   And what -- 
12            A.   He did not. 
13            Q.   He did not? 
14            A.   (Shaking head.) 
15            Q.   And you put down misdiagnosis of 
16   asthma common, what -- 
17            A.   That means young people that have a 
18   significant degree of airway obstruction, most 
19   physicians would diagnose it as asthma rather than 
20   bronchiolitis obliterans. 
21            Q.   And that's a mistake? 
22            A.   That's a mistake. 
23            Q.   And then you say -- 
24                  MR. WOODSIDE:  Object.  Move to 
0128
 1   strike, unless you were referring to people who 
 2   worked at the plant.  I don't think you meant that 
 3   to be as totally global as you asked it.  
 4            Q.   Go ahead and clarify your answer, 
 5   Doctor, then.  
 6            A.   Bronchiolitis obliterans is a rare 
 7   disease, but it can be misdiagnosed by asthma -- 
 8   as asthma.  And so if you have a young person who 
 9   has significant airway obstruction but you can't 
10   demonstrate reversal airway obstruction, then you 
11   look for another cause besides asthma.  Asthma is 
12   defined as significant airway obstruction that's 
13   reversible with the administration of 
14   bronchodilators.  
15                 The next one is IFF has 4,000 
16   employees worldwide. 
17            Q.   And why did you note that? 
18            A.   The size of the potential work 
19   force. 
20            Q.   And was that -- 
21            A.   And surveillance program, this will 
22   help pick out those with fixed airway obstruction. 
23            Q.   So was it your thought that with the 
24   population the size of IFF's that this might be an 
0129
 1   appropriate group to study to see whether or not 
 2   this problem was industry-wide? 
 3                  MR. WOODSIDE:  Objection.  
 4            A.   That's correct. 
 5            Q.   Did anyone from IFF ever contact you 
 6   to say we'd like you to study our population? 
 7            A.   No. 
 8            Q.   Look at the last page, Doctor.  You 
 9   have a note, "Put forth that it is our belief that 
10   the worker can be protected."  
11            A.   Where are you reading?
12            Q.   "Put forth," do you see that? 
13            A.   Yes.  
14                  MR. WOODSIDE:  Could you show me?
15            A.   Last page.
16            Q.   Last page, "Put forth"; do you see 
17   that? 
18            A.   Yes. 
19            Q.   And was that your belief, that the 
20   workers could be protected? 
21            A.   Yes. 
22            Q.   And should be protected? 
23            A.   From this disease, yes. 
24            Q.   Workers in their own plant at 
0130
 1   TasteMaker? 
 2            A.   In the flavoring manufacturing 
 3   industry, if they're developing this disease, they 
 4   should be protected. 
 5            Q.   And does that apply to a worker like 
 6   Keith Campbell, too? 
 7                  MR. MACE:  Objection. 
 8            Q.   He should be protected from these 
 9   chemicals in your view? 
10                  MR. MACE:  Objection.  
11            A.   Based on the information that Kay 
12   Kreiss has published, yes. 
13            Q.   Now, Doctor, let me show you 
14   something and ask you -- Let me just give you some 
15   background.  
16                  MR. WOODSIDE:  Here we go.  
17            Q.   IFF, who you referenced, purchased a 
18   company called Bush Boake Allen or BBA.  Were you 
19   ever made aware of BBA, another chemical 
20   manufacturer that label themselves as a flavor 
21   manufacturer? 
22            A.   No. 
23            Q.   Let me show you a document from 1993 
24   from the files of Bush Boake Allen.  This is 
0131
 1   Exhibit 26. 
 2   (Deposition Exhibit No. 26 was marked for 
 3   identification.) 
 4            Q.   Doctor, I know that you have -- 
 5                  MR. WOODSIDE:  Since it's my 
 6   document, would someone let me see a copy of it, 
 7   please.  
 8            Q.   (Indicating.) 
 9            A.   Okay. 
10            Q.   Doctor, this is a safety report from 
11   Bush Boake Allen in 1993.  I want you to assume 
12   that with me for a moment, if you would; all 
13   right? 
14            A.   Okay. 
15            Q.   And then Bush Boake Allen -- You can 
16   have it, Frank.  I have got the questions in mind.  
17                 Bush Boake Allen manufactured butter 
18   flavors at this plant in Chicago; would you also 
19   assume that with me? 
20            A.   Okay. 
21            Q.   All right.  Look over on the second 
22   page, if you would, at the bottom; do you see 
23   that?  And they have a reference there to a 
24   pulmonary function test report when they 
0132
 1   instituted a respiratory protection program; do 
 2   you see that, Doctor? 
 3            A.   No. 12, yes. 
 4            Q.   And do you see that they reported 
 5   that a number of their individuals had pulmonary 
 6   function abnormalities? 
 7            A.   Yes. 
 8            Q.   Doctor, is this the kind of 
 9   population that you were interested in examining 
10   when you were suggesting to FEMA that it would be 
11   appropriate to examine other flavor manufacturing 
12   companies to see whether they were having similar 
13   problems as you were experiencing in your 
14   consultation with TasteMaker? 
15            A.   Yes. 
16            Q.   And did anyone from FEMA notify you 
17   about the experience of their member company BBA? 
18            A.   No. 
19            Q.   Did anyone from BBA ever contact you 
20   to do a study such as the one done at TasteMaker? 
21                  MR. WOODSIDE:  Object.  
22            A.   No. 
23            Q.   Would you have been willing to 
24   engage in such a study if someone had contacted 
0133
 1   you? 
 2            A.   Yes. 
 3                  MR. WARD:  Object to the form of 
 4   the question.  "Someone" who?  
 5                  MR. WOODSIDE:  That's all right, 
 6   Steve.  
 7            Q.   All right.  Now, after you had the 
 8   contact and the meeting with FEMA, did they ever 
 9   ask you to consult with them further about this 
10   issue? 
11                  MR. WOODSIDE:  Object.  Who is 
12   "they"?
13            Q.   FEMA.  
14                  MR. WOODSIDE:  Okay.  
15            A.   No. 
16            Q.   Did you ever hear from anyone from 
17   TasteMaker about further follow-up after your 
18   consultancy with them in 1994, '5, and '6? 
19            A.   We continued with the surveillance 
20   program at TasteMaker.  You mean in relationship 
21   to TasteMaker follow-up?
22            Q.   Yes.  
23            A.   We continued with the surveillance 
24   program at TasteMaker I think up through 1997, 
0134
 1   maybe '98, and then it was given to Bethesda 
 2   Tri-Health, and I think they're running the 
 3   program or they had run the program there. 
 4            Q.   Okay.  But you weren't asked to 
 5   do -- After you followed up with this group, you 
 6   weren't asked to do further testing in other 
 7   plants that they had even? 
 8            A.   No.  I think Dr. McKay, if I recall 
 9   correctly, might have gone to some other plant 
10   sites to set up the preliminary function testing 
11   protocols, but I was not involved in any of the 
12   plant sites. 
13            Q.   So as an example, you weren't asked 
14   to go to this England site where they had four 
15   workers, according to your notes, that had a 
16   respiratory problem; is that correct? 
17            A.   No, that's correct. 
18            Q.   And were you ever asked to consult 
19   with TasteMaker regarding what precautions ought 
20   to be taken by their customers when utilizing 
21   these products in the manufacture of popcorn or 
22   other food products? 
23                  MR. MACE:  Objection, assumes.  
24            A.   Not that I recall. 
0135
 1            Q.   Doctor, if someone from TasteMaker 
 2   had asked you, could you have performed tests -- 
 3   could your group have performed tests to determine 
 4   what exposure levels were possible when utilizing 
 5   these flavoring products after they had been 
 6   formulated at the TasteMaker plant? 
 7                  MR. MACE:  Objection.  
 8            A.   You mean within the manufacturing 
 9   facility?  Yes. 
10            Q.   Or another manufacturing facility.  
11   I mean, as an example, if TasteMaker made a butter 
12   flavor and TasteMaker asked you, Dr. Lockey, are 
13   exposures possible when people use this butter 
14   flavor outside our plant, you could have figured 
15   that out; isn't that true? 
16            A.   That's correct. 
17            Q.   Did they ever ask you that? 
18            A.   No. 
19            Q.   And just so that I'm clear, if you 
20   look back at Exhibit -- I can't remember which one 
21   this is.  That one, it's 25; is it? 
22            A.   Twenty-five .
23            Q.   You look back at 25, after you told 
24   them, FEMA, if you collect the information, you 
0136
 1   will have to act on that information, they never 
 2   asked you to collect any more information; is that 
 3   true? 
 4            A.   That's correct. 
 5            Q.   Okay.  Now, then, if your 
 6   consultancy ended with TasteMaker in 1997, did you 
 7   do any follow-up work on your own regarding 
 8   bronchiolitis obliterans and the flavoring 
 9   industry until you were contacted by Dr. Kreiss in 
10   about 2001? 
11            A.   No. 
12            Q.   And can you describe for us in 
13   general how it is that you became aware that she 
14   was examining an outbreak of bronchiolitis 
15   obliterans in the food industry in Jasper, 
16   Missouri? 
17            A.   She had called me on the phone, and 
18   I recalled the cases that we had seen at the 
19   University of Cincinnati, and we talked on the 
20   phone for a long period of time about potential 
21   exposure situations.  And my recollection to her 
22   was that the food flavoring manufacturing industry 
23   based on the TasteMaker model was very complex, 
24   and we had recommended in that industry that they 
0137
 1   should go to a different model or go to a chemical 
 2   manufacturing model rather than a food 
 3   manufacturing model.  And as far as I was aware, 
 4   there hadn't been any other cases at this plant, 
 5   but we weren't involved in the surveillance 
 6   program, so I couldn't say that for sure.  
 7                 And then she described the cases 
 8   that they were seeing with the buttering flavoring 
 9   or with the popcorn manufacturing production 
10   tasks.  I don't think she knew at that time what 
11   may be the offending agent, but I said it sounds 
12   like the same type of thing we were seeing at 
13   TasteMaker. 
14            Q.   Now, Doctor, just expand on that.  
15   We've kind of touched on it.  That you were 
16   suggesting to TasteMaker that they operate as a 
17   chemical manufacturer, not as a food manufacturer 
18   model; what did you mean by that?  
19                 What is it that differs between a 
20   chemical manufacturer as opposed to a food 
21   manufacturer in your view? 
22            A.   When you think about things being 
23   safe to eat, there may be a presumption that 
24   they're safe from an inhalational perspective.  My 
0138
 1   view was that the majority of these agents, be it 
 2   natural-occurring agents or manmade agents, have 
 3   not been looked at from an inhalational 
 4   perspective.  Even natural-occurring agents have a 
 5   chemical make-up, so they all have a chemical 
 6   structure.  
 7                 In the food flavoring manufacturing 
 8   industry, it's a complex industry.  Hundreds of 
 9   different materials are brought into the plant 
10   site.  They're mixed, they have different 
11   concentrations, they're mixed in different 
12   manners.  They're boiled, they're heated, they're 
13   steamed, they're spray dried, they're pulverized.  
14   And to come up with a toxicological profile for 
15   all of the potential exposures would be extremely 
16   difficult.  
17                 So the bottom line in relationship 
18   to what we recommended for TasteMaker was, get all 
19   of your exposures down, control the exposures like 
20   you would in a chemical company rather than a food 
21   processing company. 
22            Q.   All right.  I understand now what 
23   you mean.  And was that one of the reasons why in 
24   regard to diacetyl and acetaldehyde and these 
0139
 1   other things, you said wear respirators regardless 
 2   of what the exposures are? 
 3            A.   Well, you could, you could stratify 
 4   some of the chemical agents, but a chemical agent 
 5   that's used in its raw form may be different after 
 6   you heat it or combine it with something else, so 
 7   under the circumstances and because of the 
 8   severity of this particular disease process, we 
 9   said you need to control all of the exposures. 
10            Q.   Just we haven't talked about that 
11   very much either.  Bronchiolitis obliterans, is it 
12   a severe disease? 
13            A.   It is a severe disease. 
14            Q.   And is it reversible? 
15            A.   It's not reversible. 
16            Q.   And, Doctor, is that one of the 
17   goals of preventative medicine, to -- because so 
18   many of them cannot be cured, to stop them from 
19   ever happening, prevent them from ever happening; 
20   is that the goal? 
21            A.   That's correct. 
22            Q.   And did you share that with FEMA 
23   when you met with them, that that was the goal? 
24            A.   I think recalling from my notes, I 
0140
 1   said that it was a serious disease and it's a 
 2   disease you want to prevent. 
 3            Q.   All right.  Now, let's mark, then, 
 4   as the next exhibit, Exhibit 27. 
 5   (Deposition Exhibit No. 27 was marked for 
 6   identification.) 
 7            Q.   Now, we had previously before we got 
 8   off on this chemical company versus food 
 9   manufacturing model, I had asked you whether 
10   anyone contacted you about your study from 
11   TasteMaker or anywhere else after 1997 until Dr. 
12   Kreiss did, and I'm framing the issue on Exhibit 
13   29, then.  Is this Dr. Kreiss -- 
14                  MR. WOODSIDE:  Exhibit 27. 
15            Q.   Twenty-seven, I'm sorry.  Is Exhibit 
16   27 Dr. Kreiss' -- one of the first contacts you 
17   had with her about speaking about bronchiolitis 
18   obliterans? 
19            A.   We had spoken on the phone prior to 
20   this, but this is the letter she sent me notifying 
21   me of the time of the conference in Morgantown, 
22   West Virginia. 
23            Q.   And did you go to that conference? 
24            A.   I did. 
0141
 1            Q.   And did you speak about your 
 2   experience? 
 3            A.   I did. 
 4            Q.   Now, this is Exhibit 28. 
 5   (Deposition Exhibit No. 28 was marked for 
 6   identification.)
 7            A.   Okay. 
 8            Q.   Doctor, what -- Is this a copy of 
 9   the "Workshop Agenda"? 
10            A.   It is. 
11            Q.   And you're listed as offering, A 
12   previous outbreak of bronchiolitis obliterans in 
13   the food flavoring -- in a food flavoring plant? 
14            A.   Yes. 
15            Q.   Doctor, you pointed to something on 
16   the second page; what was it that you were 
17   reminded of? 
18            A.   Ann Hubbs, you had talked about Dr. 
19   Hubbs. 
20            Q.   She did present her results? 
21            A.   Yes. 
22            Q.   Now, Doctor, was this presentation 
23   open to the general public? 
24            A.   As far as I'm aware, yes. 
0142
 1            Q.   And was this the first public 
 2   presentation that you had made of your data? 
 3            A.   No. 
 4            Q.   Where had you made one previous to 
 5   this? 
 6            A.   Do you have my resume?
 7            Q.   It's there in front of you.  
 8                  MR. MACE:  I think it's Exhibit 1.  
 9   Should be at the bottom of the stack of exhibits.  
10            A.   Can we go off the record for a 
11   second?  
12            Q.   Sure.  Off the record.  
13                  THE VIDEOGRAPHER:  We're off. 
14                      (Off the record.) 
15                  THE VIDEOGRAPHER:  You're back on 
16   the record.  
17   BY MR. MCCLAIN:  
18            Q.   Dr. Lockey, you mentioned -- or I 
19   asked you had you ever made any presentation 
20   publicly regarding your data, and you pointed me 
21   on your resume to two general discussions 
22   regarding bronchiolitis obliterans where it was 
23   mentioned as part of the presentation; is that 
24   correct? 
0143
 1            A.   That's correct. 
 2            Q.   But this conference on Saturday, 
 3   August 25th, 2001, was the first time you had 
 4   devoted an entire presentation to your findings; 
 5   is that correct? 
 6            A.   That's correct. 
 7            Q.   So perhaps one of the ways that Dr. 
 8   Kreiss had learned was through this -- those 
 9   previous presentations you had made as well as 
10   your students potentially telling her about them; 
11   but the first time you had ever made a formal 
12   presentation of your data was in 2001? 
13                  MR. MACE:  Objection to the 
14   characterization. 
15            Q.   To the outside public.  
16                  MR. MACE:  Object to the 
17   characterization.  
18            A.   That was where the lecture was 
19   totally devoted to the flavoring industry, that's 
20   correct. 
21            Q.   Now, had FEMA or TasteMaker asked 
22   you to make this presentation before 2001, you 
23   were certainly prepared to do it? 
24            A.   Yes. 
0144
 1                  MR. WOODSIDE:  Objection. 
 2            Q.   And did they ever ask you to do it? 
 3            A.   No. 
 4            Q.   And you would have been happy to 
 5   publish your data if they would have allowed it; 
 6   isn't that true? 
 7                  MR. MACE:  Objection.  
 8            A.   I was always guarded in relationship 
 9   to publication because of the confidentiality 
10   agreement. 
11            Q.   Which means that, because of the 
12   confidentiality agreement, you didn't publish it, 
13   right? 
14            A.   That's correct. 
15            Q.   But you thought that these results 
16   were important enough to publish; isn't that true? 
17            A.   After I heard that there may be 
18   other cases out there, after Kay had called me and 
19   talked to me about that, I thought this is not an 
20   issue that's isolated to this one plant site and 
21   it appears to be an issue that's more broad than 
22   an isolated cluster of cases. 
23            Q.   Well, Doctor, as an occupational 
24   physician, you suspected that back in 1996 when 
0145
 1   you went to meet with FEMA; isn't that true? 
 2            A.   That's correct. 
 3            Q.   You worried as a public health 
 4   official that what you were seeing was actually 
 5   happening in other places, and you as a public 
 6   health official charged with preventing such 
 7   disease wanted to try to do that to get ahead of 
 8   the curve; isn't that right? 
 9            A.   That's correct, but I was told I 
10   think back by FEMA that this was really an 
11   isolated issue for Cincinnati. 
12            Q.   They were wrong about that; weren't 
13   they? 
14            A.   They were. 
15            Q.   But they were the ones that told you 
16   not to go any further; you wanted to and you 
17   felt -- 
18                  MR. MACE:  Objection. 
19            Q.   -- that that was prudent; isn't that 
20   true? 
21                  MR. WOODSIDE:  Objection. 
22                  MR. MACE:  Objection, misleading.  
23            A.   I felt that the other flavoring 
24   manufacturing sites should be looked at.  My 
0146
 1   impression when I left the meeting was that FEMA 
 2   felt that it was an isolated cluster of cases in 
 3   the Cincinnati site. 
 4            Q.   But they as far as you know did no 
 5   inquiry of their own, no study of their own, no 
 6   investigation to rule out what you were suggesting 
 7   was a possibility; am I right? 
 8            A.   That's correct. 
 9            Q.   Now, after your presentation at the 
10   NIOSH workshop, you also decided that it was 
11   important that you bring your results to the 
12   attention of the American Thoracic Society; isn't 
13   that true? 
14            A.   That's correct. 
15            Q.   And when you did that and it got 
16   back to TasteMaker, now Givaudan -- 
17                  THE VIDEOGRAPHER:  Excuse me, I 
18   have to go off the record for a minute. 
19                      (Off the record.) 
20                  THE VIDEOGRAPHER:  Back on the 
21   record.  You may begin.  
22   BY MR. MCCLAIN:  
23            Q.   Doctor, if there were cases in 1986 
24   as we've seen and cases -- potential cases in 1993 
0147
 1   that we've seen of respiratory problems in these 
 2   plants, then FEMA's suggestion to you that it was 
 3   an isolated event was incorrect; isn't that true? 
 4                  MR. WOODSIDE:  Objection, 
 5   foundation. 
 6                  MR. MACE:  Objection. 
 7                  MR. WARD:  Objection, same.  
 8            A.   Yes. 
 9            Q.   And you were misled by that? 
10                  MR. MACE:  Objection. 
11                  MR. WOODSIDE:  Objection. 
12                  MR. WARD:  Objection.  
13            A.   The data from NIOSH we dug out 
14   ourselves.  The name of the company in Chicago?  
15            Q.   Bush Boake Allen, BBA.  
16            A.   I was not aware that they were 
17   having issues at that plant site. 
18            Q.   And as far as you know, did FEMA 
19   make any inquiries of BBA or other members about 
20   such incidents? 
21            A.   I remember leaving a meeting 
22   thinking that FEMA felt this was an isolated 
23   problem for the TasteMaker facility, and they had 
24   not heard of any other cases at any other 
0148
 1   facilities or similar-type problems.  That was the 
 2   impression I was left with. 
 3            Q.   Doctor, do you remember our 
 4   discussion about you telling FEMA, if you collect 
 5   the information, you'll have to distribute it? 
 6            A.   Yes. 
 7            Q.   If you don't ask the question, it's 
 8   pretty hard to have an answer to it; isn't it? 
 9            A.   That's correct. 
10            Q.   All right.  Now, then let's go to 
11   the ATS.  You felt like it was important enough, 
12   that your data was important enough, that you 
13   needed to publish it, and you took it to the 
14   American Thoracic Society; isn't that right? 
15            A.   That's correct. 
16            Q.   What is the American Thoracic 
17   Society? 
18            A.   It's a professional organization 
19   made up of pulmonary physicians. 
20            Q.   Let's show you Exhibit 30 -- 29. 
21   (Deposition Exhibit No. 29 was marked for 
22   identification.) 
23            Q.   Dr. Lockey, I think that this 
24   document is your note summarizing this whole 
0149
 1   ordeal you went through to get your information 
 2   published by the ATS; is that a fair 
 3   characterization? 
 4            A.   That's correct. 
 5            Q.   You decided after Dr. Kreiss' 
 6   meeting that it was important for you to tell the 
 7   other chest physicians about what you found at the 
 8   TasteMaker plant over six years ago at this point, 
 9   right? 
10            A.   That's correct. 
11            Q.   2002, back in 1996? 
12            A.   That's correct. 
13            Q.   And at that point a Mr. Fred King, 
14   the legal representative of Givaudan, contacted 
15   you; is that right? 
16            A.   That's correct. 
17            Q.   And told you essentially you didn't 
18   have any right to publish that information; is 
19   that correct? 
20            A.   He raised the issue with me, yes, 
21   that's correct. 
22            Q.   And you wanted to publish it? 
23            A.   I thought from a public health 
24   perspective, it would be correct to do that. 
0150
 1            Q.   And ultimately, he -- You offered, 
 2   in fact, to withdraw the publication because of 
 3   the confidentiality arrangement that you 
 4   previously had; is that right? 
 5            A.   That's correct. 
 6            Q.   Let me show you a document in which 
 7   Mr. King writes to you.  That's Exhibit 30. 
 8   (Deposition Exhibit No. 30 was marked for 
 9   identification.) 
10            Q.   In this Exhibit 30, Dr. Lockey, this 
11   same Mr. King, Vice President of Legal Affairs for 
12   Givaudan -- And Givaudan at this point had bought 
13   TasteMaker; is that correct? 
14            A.   That's correct. 
15            Q.   He outlines everything that's in 
16   your confidentiality agreement about how you have 
17   to keep it secret and you can't tell anybody about 
18   anything that you learned.  And then he says:  "As 
19   you can see, Givaudan has a right to request that 
20   you return all information in your possession 
21   relating in any way to the services you provided 
22   to TasteMaker."  
23                 And then he goes on, and it says:  
24   "In addition, Givaudan hereby requests that you do 
0151
 1   not disseminate any TasteMaker confidential 
 2   information by way of public lecture, seminar, 
 3   speaking engagement, or written publication unless 
 4   you have received prior written permission from 
 5   Givaudan to do so"; do you see that? 
 6            A.   Yes. 
 7            Q.   And, Doctor, throughout this entire 
 8   time period, you have already expressed to us you 
 9   felt constrained by this confidentiality agreement 
10   not to disclose this information? 
11            A.   That's correct. 
12            Q.   And the only reason why you were 
13   disclosing it was you felt compelled based on Dr. 
14   Kreiss' findings at the Jasper plant that you 
15   could no longer keep it secret; am I right? 
16                  MR. MACE:  Objection.  
17            A.   I thought that, seeing that there 
18   were other cases in other food manufacturing 
19   companies, that my information was substantial and 
20   should be added to the medical literature, that's 
21   correct. 
22            Q.   And Mr. King even went so far even 
23   after this correspondence and after you told him 
24   you were going to present it to the ATS anyway 
0152
 1   that he asked you not to allow a press release to 
 2   go out about it, right; he didn't want it to get 
 3   into the newspaper? 
 4            A.   That's correct. 
 5            Q.   And, in fact, let's mark this as 
 6   Exhibit 31. 
 7   (Deposition Exhibit No. 31 was marked for 
 8   identification.) 
 9                  MR. MACE:  Copy?
10            Q.   And we'll mark it as Exhibit 32, 31 
11   and 32. 
12   (Deposition Exhibit No. 32 was marked for 
13   identification.) 
14            Q.   There's a series of -- 
15                  MR. WOODSIDE:  Do you have any more 
16   copies?  I don't have either one.  
17            Q.   There's a series of e-mails about 
18   this press release in which apparently they were 
19   badgering you about whether did it go to any 
20   newspapers or not; do you remember that? 
21                  MR. MACE:  Objection, 
22   characterization.  
23            A.   Yes.  They asked me in an e-mail 
24   about where did this information go to. 
0153
 1            Q.   So did you interpret that that they 
 2   were very concerned that this was getting out into 
 3   the press? 
 4                  MR. MACE:  Objection.  
 5            A.   Yes. 
 6            Q.   And, in fact, you kind of tracked it 
 7   down and assured them that nobody showed up at the 
 8   press conference, right? 
 9            A.   There were about ten people in the 
10   room, yeah. 
11            Q.   And it didn't get into the 
12   newspapers, right? 
13            A.   As far as I'm aware from what ATS 
14   said, that's correct. 
15            Q.   And Givaudan was happy about that? 
16                  MR. MACE:  Objection.  
17            A.   That I don't know. 
18            Q.   Just so that we have the two 
19   exhibits, would you just tell us what those are.  
20            A.   Thirty-one is an e-mail from C E L I 
21   A, V I M O N T, to Connie Thrasher, my 
22   administrative assistant, regarding the draft of 
23   the ATS press item.  And the second one, no. 32, 
24   is a similar e-mail about the ATS press item.  
0154
 1            Q.   Now, Doctor, even after presenting 
 2   this at the ATS conference, which you did over 
 3   Givaudan's objection -- 
 4                  MR. MACE:  Objection, 
 5   mischaracterization.  
 6            Q.   Well, let's be fair about it, 
 7   Doctor.  Doctor, it's true, isn't it, that 
 8   Givaudan was not thrilled with your presentation 
 9   at ATS? 
10                  MR. MACE:  Objection.  
11            A.   My impression is that -- based on 
12   the letter I got after the presentation, was that 
13   they didn't want me doing it anymore. 
14            Q.   And, Doctor, do you recall that an 
15   employee of my law firm in an attempt to 
16   understand your studies in order to prepare the 
17   lawsuits in Jasper, Missouri, contacted your 
18   office to ask you about your study? 
19            A.   Yes. 
20            Q.   And that was Mr. Messbarger? 
21            A.   Yes. 
22            Q.   And let me hand you Exhibit 32 -- 
23   33, and you made a note about that contact?
24   (Deposition Exhibit No. 33 was marked for 
0155
 1   identification.) 
 2            A.   Yes, I did. 
 3            Q.   And he was trying to find 
 4   information about your study? 
 5            A.   Yes. 
 6            Q.   And you told Mr. Messbarger, and I'm 
 7   reading, "that we signed a confidentiality 
 8   agreement in order to gain access to the facility 
 9   to help in the workplace evaluation and therefore 
10   that information could not be released"? 
11            A.   That's correct. 
12            Q.   So even as late as 2003, you felt 
13   constrained by the confidentiality that you had 
14   signed with Givaudan and TasteMaker not to 
15   disclose this information; is that right?
16                  MR. MACE:  Objection to form.  
17            A.   I felt there were restraints put on 
18   how I would disclose this information, 
19   particularly editorial rights, which I have 
20   difficulty giving up. 
21            Q.   And so, Doctor, it's fair to say 
22   that the only way for us to get this information 
23   was to subpoena you here with a power of the Court 
24   so you could speak out publicly about these 
0156
 1   issues; is that fair? 
 2                  MR. MACE:  Objection, 
 3   mischaracterization, assumes.  Objection to form.  
 4            A.   Yes. 
 5                  MR. MCCLAIN:  Thank you, Doctor.  I 
 6   have no further questions.  
 7                  MR. MACE:  Let's go off the record.  
 8                  THE VIDEOGRAPHER:  One second, 
 9   please.
10                                     (Lunch recess.) 
11                  THE VIDEOGRAPHER:  You're back on 
12   the record.  You may begin. 
13                  MR. MACE:  Good afternoon, Doctor. 
14                  THE WITNESS:  Good afternoon. 
15                    CROSS-EXAMINATION
16   BY MR. MACE:   
17            Q.   Doctor, TasteMaker contacted you as 
18   an independent consultant to help determine what 
19   was going on and what to do about it, right? 
20                  MR. MCCLAIN:  Objection to the form 
21   of the question.  
22            A.   That's correct. 
23            Q.   And you believe that the causative 
24   agent was acetaldehyde and possibly capsaicin, 
0157
 1   correct? 
 2            A.   That's correct. 
 3            Q.   Let me show you what we've marked 
 4   for identification as an article that Plaintiff's 
 5   counsel referenced but I don't think he marked.  
 6   It is going to be Exhibit 34. 
 7   (Deposition Exhibit No. 34 was marked for 
 8   identification.) 
 9            Q.   Exhibit 34 is the article that you 
10   referenced, has your picture in it, but it's an 
11   article from May 21st of '02 in the "American 
12   Thoracic Society Daily Bulletin," correct? 
13            A.   That's correct. 
14            Q.   And the article summarizes your 
15   presentation that you gave at the ATS, some of the 
16   key points from it? 
17            A.   That's correct. 
18            Q.   And at the end, bottom of the first 
19   column there, you talked about workers coming into 
20   contact with large amounts of flavoring agents, 
21   sometimes in high concentrations, during the 
22   manufacturing of the flavors, correct? 
23            A.   That's correct. 
24            Q.   And then at the end you said that 
0158
 1   your study identified a number of substances that 
 2   might potentially be harmful if inhaled in high 
 3   concentrations, most notably acetaldehyde and 
 4   capsaicin, correct? 
 5            A.   Yes. 
 6            Q.   No one thought that butter flavoring 
 7   was the cause of any of the bronchiolitis 
 8   obliterans that you saw at TasteMaker, right? 
 9                  MR. MCCLAIN:  Object to the form of 
10   the question.  
11            A.   Within the people that we saw, we 
12   did identify that we thought acetaldehyde 
13   particularly was responsible for some of the 
14   cases.  The other cases of bronchiolitis 
15   obliterans, the etiology was not as clear. 
16            Q.   You did not think that diacetyl was 
17   the cause of the BO, bronchiolitis obliterans, 
18   problems at TasteMaker? 
19                  MR. MCCLAIN:  Object to the form of 
20   the question.  
21            A.   All I can say is that I thought 
22   acetaldehyde was responsible for some of the 
23   cases.  It was not clear to me what was 
24   responsible for the others. 
0159
 1            Q.   You had never targeted diacetyl as 
 2   being the cause of any of the BO problems? 
 3                  MR. MCCLAIN:  Object to the form of 
 4   the question.  
 5            A.   That's correct. 
 6            Q.   Are you aware of the fact there's no 
 7   acetaldehyde in butter flavoring? 
 8                  MR. MCCLAIN:  Object to the form of 
 9   the question.  
10            A.   Is there no acetaldehyde in butter 
11   flavoring?
12            Q.   Yes.  Are you aware of that? 
13            A.   No. 
14            Q.   You did not suggest -- 
15                  MR. MCCLAIN:  No, you're not aware 
16   of that?  
17                  THE WITNESS:  No, I'm not aware of 
18   that. 
19   BY MR. MACE: 
20            Q.   You did not suggest any tests be run 
21   on diacetyl to TasteMaker? 
22            A.   No. 
23            Q.   No, you did not? 
24            A.   No, I did not. 
0160
 1            Q.   And isn't it a fact that none of the 
 2   five workers you tested had been exposed to 
 3   diacetyl? 
 4                  MR. MCCLAIN:  Object to the form of 
 5   the question.  
 6            A.   I think that's correct, yes. 
 7            Q.   As part of your investigation, you 
 8   did find that there were people working in 
 9   identical jobs that did not have any health 
10   problems? 
11                  MR. MCCLAIN:  Object to the form of 
12   the question.  This is all leading.  He's your 
13   witness.  You've claimed that he's your witness.  
14   You're claiming attorney-client privilege on him.  
15   You're not allowed to lead a witness who is your 
16   consultant.  Here's a document where you have 
17   Attorney Anthony -- Stephanie Thompson to James 
18   Lockey that you're claiming privilege, 
19   attorney/client, work product.  I object to all of 
20   these questions on their leading nature.  You 
21   can't lead this witness.  He's not adverse to you 
22   in any way.  He was your consultant.  
23                  MR. MACE:  Your objection is noted.  
24   Can you answer the question?  
0161
 1                  MR. MCCLAIN:  I object.  Am I going 
 2   to have to object to every single question as 
 3   being leading?  
 4                  MR. MACE:  You can have a 
 5   continuing objection.  
 6                  THE WITNESS:  Can you ask the 
 7   question again?
 8                  MR. MACE:  Sure.
 9   BY MR. MACE:
10            Q.   As part of the investigation, didn't 
11   you find that there were people working in 
12   identical jobs that did not have any health 
13   problems? 
14            A.   In relation to acetaldehyde, there 
15   were what I call old-time workers there who had 
16   worked with that material for a number of years 
17   who did not have any health problems.  Other 
18   workers who were relatively new to the facility 
19   did have health problems with that particular 
20   chemical agent.  Under the circumstances I thought 
21   there most likely was some type of individual 
22   susceptibility in relationship to acetaldehyde. 
23            Q.   The persons that you followed, 
24   looked into, at TasteMaker generally stabilized? 
0162
 1            A.   That's correct.  One of the -- One 
 2   of our findings had been that, even though the 
 3   lung functions were markedly reduced, once we 
 4   removed them from exposure to another place, they 
 5   tended to remain stable for a relatively long 
 6   period of time. 
 7            Q.   You did not see what has been 
 8   referred to as the relentless decline that had 
 9   typically been seen in classic bronchiolitis 
10   obliterans cases? 
11            A.   No, not in these cases.  I think 
12   that type of relentless decline usually is 
13   associated with other disease processes that may 
14   be going on, such as an immune disease that can be 
15   associated with bronchiolitis obliterans. 
16            Q.   Based on your expertise, it appeared 
17   to be a situation that involved people working 
18   with high concentrations of substances in a unique 
19   setting? 
20            A.   That was my opinion based on the 
21   information I gathered at the time, that's 
22   correct. 
23            Q.   Let me refer you back to Exhibit 10.  
24   Exhibit 10 is a copy of the abstract from 2002, 
0163
 1   correct? 
 2            A.   Yes. 
 3            Q.   And about the middle of the 
 4   paragraph you're talking about causes of BO, 
 5   bronchiolitis obliterans, that they range from 
 6   infectious agents, toxic gasses, fumes, mists or 
 7   dusts, connective tissue disorders, complications 
 8   from bone or heart, lung transplantation as well 
 9   as idiopathic; is that correct?  
10            A.   That's correct. 
11            Q.   Lot of potential different causes, 
12   right? 
13            A.   That's correct. 
14            Q.   What does idiopathic mean, for the 
15   jury?
16            A.   Unknown cause. 
17            Q.   And you note down toward the bottom 
18   that, after removal from exposure, the patients 
19   have no further loss in their lung function, 
20   correct? 
21            A.   That's correct. 
22            Q.   And then again, at the end you say 
23   that the case series indicates that manufacturing 
24   of food flavors in relatively large amounts and at 
0164
 1   high concentrations and used at aerosolized 
 2   manufacturing processes may represent a respitory 
 3   hazard in susceptible workers; is that correct? 
 4            A.   That's correct. 
 5            Q.   That was your summary that you put 
 6   out with regard to what your study had been, 
 7   correct? 
 8            A.   Yes. 
 9            Q.   You did not think that the situation 
10   at TasteMaker represented a public health 
11   epidemic? 
12                  MR. MCCLAIN:  Object to the form of 
13   the question in terms of time.  At what point in 
14   time?
15            Q.   Let's talk about before 2002.  
16            A.   At that point in time, I thought 
17   there might be problems at other manufacturing 
18   facilities, and that's why it was suggested that 
19   other facilities be addressed.  At the TasteMaker 
20   facility based on the corrective measures that 
21   were taken, as far as I'm aware, there were no 
22   further cases of this disease process in workers. 
23            Q.   And even going to Mr. McClain's 
24   point, even today you don't see any evidence that 
0165
 1   there's a public health epidemic; do you? 
 2            A.   I don't know what's going on with 
 3   the end users in relationship to this particular 
 4   product. 
 5            Q.   You really haven't investigated 
 6   that; have you? 
 7            A.   No, I have not. 
 8            Q.   All right.  Now, you mentioned that 
 9   you thought it could be more than a TasteMaker 
10   issue, correct? 
11            A.   Yes. 
12            Q.   And you recognized back at the time 
13   that there were other flavor manufacturing 
14   companies who worked with, or you suspected worked 
15   with, the same raw materials that TasteMaker did? 
16            A.   Yes. 
17            Q.   And you recommended that TasteMaker 
18   notify the flavor manufacturing industry? 
19            A.   Yes. 
20            Q.   And TasteMaker did that, correct? 
21            A.   Yes. 
22            Q.   And, in fact, you went with 
23   TasteMaker to FEMA, correct? 
24            A.   I did. 
0166
 1            Q.   And the issues at TasteMaker were 
 2   with people who were using concentrated raw 
 3   materials, like pure acetaldehyde, correct? 
 4            A.   They were using acetaldehyde in high 
 5   concentrations, such as 35, 40 percent. 
 6            Q.   And isn't it a fact that there were 
 7   more than 2,000 different chemicals and substances 
 8   being used at TasteMaker? 
 9            A.   That's correct. 
10            Q.   Several of the people that you 
11   looked at tied their respiratory issues to acute 
12   exposure to acetaldehyde, correct? 
13            A.   We had a few index cases which 
14   really for us at least identified acetaldehyde in 
15   high concentrations as the offending agent, as one 
16   of the offending agents. 
17            Q.   You did not recommend that 
18   TasteMaker make any warnings to its customers 
19   using its butter flavorings? 
20            A.   No. 
21            Q.   You did not recommend that 
22   TasteMaker make any warnings to any of its 
23   customers using any of its products? 
24            A.   No. 
0167
 1            Q.   To the best of your knowledge, no 
 2   one recommended to TasteMaker that it make any 
 3   warnings to its customers using its butter 
 4   flavorings or any of its products? 
 5            A.   As far as I'm aware, that's correct. 
 6            Q.   Mr. McClain showed you an exhibit 
 7   that was marked as Exhibit 24.  You said those 
 8   were some handwritten notes with regard to your 
 9   trip to FEMA back in 1997; is that correct? 
10            A.   Yes. 
11            Q.   And when you were reading the note 
12   at the top of the second page under "Purpose," you 
13   read your handwriting to be that TasteMaker felt 
14   an obligation to notify the industry; do you see 
15   that? 
16            A.   Yes. 
17            Q.   And TasteMaker did that, correct; 
18   they went to FEMA? 
19                  MR. MCCLAIN:  Object to the form of 
20   the question.  It's been asked and answered.  
21            A.   Yes. 
22            Q.   TasteMaker was proactive about that, 
23   correct? 
24            A.   Yes. 
0168
 1            Q.   You said that Exhibit 23 went with 
 2   that one, kind of an outline of an agenda.  And in 
 3   Exhibit 23, which you said was the outline for the 
 4   briefing with FEMA, at the end of the objective 
 5   there, it states that "could be more generally 
 6   present in workplaces of other flavor 
 7   manufacturers"; those are the words that were 
 8   used? 
 9            A.   Yes. 
10            Q.   And several times in your testimony 
11   you used the phrase that your concern would be 
12   with other people using the same substances in 
13   similar concentrations in similar situations, 
14   correct? 
15            A.   That's correct. 
16            Q.   Now, have you ever made an analysis 
17   of how the raw materials are transformed during 
18   the processes at TasteMaker, how they went from 
19   the raw materials to their final products? 
20            A.   No, I have not. 
21            Q.   Is it fair to say, Doctor, that you 
22   believe that TasteMaker was proactive in handling 
23   the situation? 
24            A.   In relationship to identifying the 
0169
 1   problem and the work force, yes. 
 2            Q.   And, in fact, TasteMaker followed 
 3   every recommendation that you made? 
 4            A.   As far as I'm aware, that's correct. 
 5            Q.   And you believe TasteMaker did 
 6   everything appropriately in investigating the 
 7   situation? 
 8            A.   We did everything appropriate in 
 9   relationship to controlling the exposure 
10   situations and preventing further disease, that's 
11   correct. 
12            Q.   You believe TasteMaker took 
13   aggressive and appropriate action? 
14                  MR. MCCLAIN:  Object to the form of 
15   the question.  This is beyond the scope of his 
16   expertise, and you haven't established a 
17   foundation that he knows what TasteMaker did, 
18   particularly after he was no longer a consultant.  
19            A.   In relationship to helping solving 
20   the issue at that particular plant site, the 
21   answer is yes. 
22            Q.   In fact, you believe that TasteMaker 
23   has a good story to tell as to how they handled 
24   the situation? 
0170
 1            A.   In relationship to work force, 
 2   that's correct. 
 3            Q.   Mr. McClain showed you some of your 
 4   handwritten notes that have been marked as Exhibit 
 5   16.  Let me find those for you.  Exhibit 16, you 
 6   said those were some handwritten notes of yours 
 7   from back in July of '95? 
 8            A.   Yes. 
 9            Q.   And over on page 2, Mr. McClain 
10   pointed out that, in addition to dimethyl sulfide 
11   and several other chemicals and compounds, there 
12   was a reference to diacetyl; do you see that?
13            A.   Yes. 
14            Q.   You have a note, "This material is 
15   very irritating," correct? 
16            A.   Yes. 
17            Q.   And there certainly can be a 
18   difference between a substance being irritating 
19   and being the cause of bronchiolitis obliterans, 
20   correct? 
21            A.   Yes. 
22            Q.   You made a mention that a man named 
23   Donny -- Let me give you the document you were 
24   referring to.  You had some handwritten notes 
0171
 1   marked as Exhibit 13; Counsel showed you those.  
 2   And over on the page that was titled at the top 
 3   "Mill Room," four or five pages back from the 
 4   back.  
 5            A.   "Mill Room," yes. 
 6            Q.   Okay.  And Counsel pointed out you 
 7   have the reference todiacetyl in that document, 
 8   and you made mention that somebody named Donny had 
 9   burning eyes from this; do you see that reference? 
10            A.   Yes. 
11            Q.   And you have that reference under 
12   the "Mill Room," correct? 
13            A.   It's just a listing of different 
14   areas that people were probably telling me where 
15   there may be potential problems. 
16            Q.   Okay.  But in Counsel's questioning, 
17   I think among his questions to you, he said and 
18   Donny worked at the Small Order Department, and I 
19   think you had agreed to that.  
20                 Do you have any, do you have any 
21   knowledge as to where Donny worked, what 
22   department he worked in? 
23            A.   I don't know where Donny worked. 
24            Q.   Okay.  Let me show you a document 
0172
 1   that was in the records you produced. 
 2   (Deposition Exhibit No. 35 was marked for 
 3   identification.) 
 4            Q.   Marked this as Exhibit 35.  
 5                  MR. MCCLAIN:  This is already an 
 6   exhibit; isn't it?  
 7                  MR. MACE:  It may be within one of 
 8   your exhibits; I don't know.  
 9                  MR. MCCLAIN:  Yeah.  I hate to take 
10   these documents apart and use them as separate 
11   documents because outside the context of the 
12   document, you know, you can't utilize the rule of 
13   completeness or a variety of things, so I object 
14   to using it in this fashion.  
15                  MR. MACE:  Well, I believe you had 
16   miscollated some of the documents so that -- 
17                  MR. MCCLAIN:  Well, I would be 
18   happy to examine all of the documents in their 
19   original form, and particularly the ones that you 
20   have held back or redacted inappropriately, I 
21   believe. 
22                  MR. WOODSIDE:  Time out.  It's the 
23   second page of Exhibit 17.  
24                  MR. MACE:  And I have not redacted 
0173
 1   anything, Counsel.  
 2   BY MR. MACE:  
 3            Q.   Exhibit 35, which I guess is the 
 4   second page of Exhibit 17 -- Let's go to that one, 
 5   too, Exhibit 17.  Mr. Woodside has pointed out 
 6   Exhibit 35 is a copy of the second page of Exhibit 
 7   17.  
 8            A.   That's correct. 
 9            Q.   Is it your memory that Exhibit 35 
10   does go with the cover page? 
11            A.   Yes. 
12            Q.   Okay, all right.  Well, feel free to 
13   look at either one of the documents, then.  It's 
14   titled, this document is titled at the top 
15   "Present a method TasteMaker will use to evaluate 
16   materials for their hazard potential"; do you see 
17   that? 
18            A.   Yes. 
19            Q.   And on the back -- It talks about 
20   looking at chemicals according to their chemical 
21   family; do you see that under the "Background"? 
22            A.   Yes. 
23            Q.   And on the back, on the next page, 
24   there's a listing of 31 different chemical 
0174
 1   families? 
 2            A.   Yes. 
 3            Q.   Now, when you were informed that 
 4   TasteMaker was planning on looking at the 
 5   chemicals in terms of their chemical groupings or 
 6   chemical families, did you have any comments about 
 7   that? 
 8            A.   Stratifying the known chemicals 
 9   within the plant site that may be potentially 
10   hazardous based on their chemical structure. 
11            Q.   That seemed like an appropriate 
12   approach to you, correct? 
13            A.   It is. 
14            Q.   Let me have you refer to Exhibit 20.  
15   Exhibit 20, you were asked about the second page 
16   under "Categorization of Raw Materials," you've 
17   got a reference, "Review current RM," that's raw 
18   material inventory? 
19            A.   Yes. 
20            Q.   And there's a reference to 2500; 
21   that's an approximation of the number of raw 
22   materials? 
23            A.   That's my assumption, yes. 
24            Q.   But the second one I wanted to ask 
0175
 1   you about, "divide into generic functional 
 2   chemical classes, choose chemical classification 
 3   system," and it says under "Accountable," "Dr. 
 4   Higley, Dr. Lockey, status completed."  
 5                 Do you recall being involved with 
 6   Nancy Higley in terms of dividing the chemicals up 
 7   into their chemical classes? 
 8            A.   I think I looked at the list.  I 
 9   think Dr. Higley was probably the most responsible 
10   for that. 
11            Q.   Okay.  But in conjunction with you, 
12   she did submit for your expertise what her 
13   determinations were in terms of where chemicals 
14   fit? 
15            A.   That's correct. 
16            Q.   And you had no disagreements? 
17            A.   No. 
18            Q.   Counsel showed you Exhibit 18, which 
19   was a listing of "Raw Materials Sensitivity List."  
20            A.   Correct. 
21            Q.   And it's a five-page document 
22   listing more than 200 different chemicals and 
23   compounds; isn't that right? 
24            A.   Yes. 
0176
 1            Q.   And there's some sensitivity listed 
 2   for 69 of those different chemicals and compounds; 
 3   isn't there? 
 4            A.   Yes. 
 5            Q.   One of the documents that you said 
 6   that you looked at as part of your investigation 
 7   back in the mid '90's was the NIOSH report from 
 8   International Baker Services? 
 9            A.   Yes. 
10            Q.   Go ahead and mark that.  
11                  MR. MCCLAIN:  It's already an 
12   exhibit.  
13                  MR. MACE:  I don't believe it is.  
14                  MR. MCCLAIN:  Part of the FEMA 
15   materials.  
16                  MR. MACE:  Well, that's good 
17   because I don't have extra copies.  I want to 
18   separately mark it a stand-alone exhibit. 
19   (Deposition Exhibit No. 36 was marked for 
20   identification.)  
21   BY MR. MACE:  
22            Q.   Looking at Exhibit 36, is that a 
23   true and accurate copy of the study that you were 
24   referencing? 
0177
 1            A.   Yes, it is. 
 2            Q.   And I'll represent to you that it's 
 3   a copy that came out of your files.  
 4                  MR. MCCLAIN:  Counsel, are you 
 5   representing that this was in his file?  
 6                  MR. MACE:  I may be mistaking on 
 7   that.  I'll withdraw that representation.  
 8   BY MR. MACE:  
 9            Q.   What is diffusing capacity in a 
10   lung, before we get into some specifics on this, 
11   what is the diffusing capacity; how would you 
12   explain that? 
13            A.   That's a measure of gas exchange 
14   across the alveolar capillary membrane. 
15            Q.   In general terms, is it, a broad 
16   characterization, one of the lung's primary 
17   functions is to exchange carbon dioxide for 
18   oxygen? 
19            A.   That's correct. 
20            Q.   And that the diffusing capacity has 
21   to do with that gas exchange? 
22            A.   Yes. 
23            Q.   And with respect to the people that 
24   you looked into at TasteMaker, they're diffusing 
0178
 1   capacity was typically normal? 
 2            A.   We did -- In the surveillance 
 3   program, we were doing pulmonary function testing.  
 4   We were doing spirometry testing. 
 5            Q.   And is it your memory on that that 
 6   the diffusing capacity was typically in the normal 
 7   range? 
 8            A.   In the workers that we had, we had 
 9   evidence of bronchiolitis obliterans, if I recall 
10   correctly, the diffusing capacity was normal. 
11            Q.   Now, in the Baker study, if you look 
12   over at page 4, at the very bottom of it, there's 
13   a reference to a hyperinflated chest x-ray in Case 
14   1 and subsequent fall and the exchange capacity 
15   suggesting emphysema; do you see that reference? 
16            A.   Yes. 
17            Q.   You did not see any findings like 
18   that in the five persons you referenced that you 
19   looked into at TasteMaker? 
20            A.   I'd have to go back and look at each 
21   of the cases to answer that question. 
22            Q.   But sitting here today, you don't 
23   recall seeing such a finding in any of the five -- 
24                  MR. MCCLAIN:  Objection to the form 
0179
 1   of the question.  
 2            A.   Again, I would have to go back, I'd 
 3   really have to go back and look at the cases on a 
 4   case-by-case basis. 
 5            Q.   And in terms of the substances that 
 6   were at issue in the Baker study, there's some 
 7   references on specific substances over on page 7; 
 8   do you see that? 
 9            A.   Okay. 
10            Q.   There's a reference says Item 1, 
11   "Nuisance Particulates"; do you see that? 
12            A.   Yes. 
13            Q.   "Grain Dust"? 
14            A.   Yes. 
15            Q.   Under "Grain Dust" it says 
16   recognized to cause chronic bronchitis; do you see 
17   that?
18            A.   Yes. 
19            Q.   Do you accept that as being a 
20   medical fact? 
21            A.   Yes. 
22            Q.   There's a reference on the next page 
23   to "Amorphous Silica"? 
24            A.   Yes. 
0180
 1            Q.   And silica is a known cause of 
 2   certain respiratory problems, correct? 
 3            A.   Crystal silica is. 
 4            Q.   On the next page there's a reference 
 5   to "Proteolytic Enzymes"; do you see that? 
 6            A.   Yes. 
 7            Q.   And then there's a reference to 
 8   "Bacterial Endotoxin"; do you see that? 
 9            A.   Yes. 
10            Q.   And also a reference to "Bakery 
11   Flours," correct? 
12            A.   Yes. 
13            Q.   Did you feel when you looked at the 
14   Baker Services NIOSH report back in the mid '90's 
15   when you were doing the consulting work for 
16   TasteMaker that it gave you any helpful 
17   information with regard to trying to determine the 
18   causative agent at TasteMaker? 
19            A.   No, only in that this disease 
20   process was identified by NIOSH in another food 
21   producing facility. 
22            Q.   You were shown an Exhibit 26 by 
23   Counsel, and that was a copy of a Bush Boake Allen 
24   memo from March 18, '93.  And you said you had 
0181
 1   never seen that before today, correct? 
 2            A.   No, I have not. 
 3            Q.   And to the best of your knowledge, 
 4   TasteMaker has never seen that document before, 
 5   correct? 
 6                  MR. MCCLAIN:  Object to the form of 
 7   the question.  How would he know?
 8            Q.   I asked him to the best of his 
 9   knowledge.  He can answer.
10                  MR. MCCLAIN:  Well, you haven't 
11   established that he could ever have any knowledge 
12   of that.  Let me voire dire the witness just real 
13   briefly on this point.
14                 VOIRE DIRE EXAMINATION
15   BY MR. MCCLAIN: 
16            Q.   Doctor, have you -- Did the company 
17   make you aware of what's in their records and 
18   files in terms of company documents? 
19            A.   No. 
20            Q.   Did they allow you to interview 
21   people to talk about their other contacts with 
22   other industry members? 
23            A.   No. 
24            Q.   So you would have no basis to answer 
0182
 1   this question; is that correct? 
 2            A.   That's correct. 
 3            Q.   The one that he's posed to you.  
 4            A.   That's correct. 
 5                  MR. MCCLAIN:  I object to it.
 6             CROSS-EXAMINATION (Continued)           
 7   BY MR. MACE:  
 8            Q.   Doctor, was it your impression that 
 9   TasteMaker was freely sharing with you all of the 
10   information that it had as part of your 
11   investigation? 
12            A.   As far as I'm aware, that's correct. 
13            Q.   I mean, you thought that it was a 
14   cooperative process and you were getting 
15   cooperation and there was a team working together 
16   to try to figure this out? 
17            A.   That's correct. 
18            Q.   And at least to your knowledge, you 
19   don't know of TasteMaker ever having a copy of 
20   that document? 
21            A.   I have no knowledge one way or the 
22   other. 
23            Q.   You have no knowledge that 
24   TasteMaker had any knowledge about any issues at 
0183
 1   any BBA plant? 
 2            A.   Again, I don't have any knowledge 
 3   one way or the other about what TasteMaker knew or 
 4   did not know about any BBA plant. 
 5            Q.   But Counsel asked you some 
 6   questions, and you're not implying that you have 
 7   any knowledge or information that TasteMaker had a 
 8   copy of that memo or knew of it? 
 9            A.   I'm not implying that TasteMaker 
10   knew of this. 
11            Q.   Okay.  Let me also show you on a 
12   similar score Exhibit 7, which was a copy Counsel 
13   showed you of this BASF paper, marked on the front 
14   as October 19, '01, second page marked in '93.  
15   Again, you said that you had never seen this paper 
16   before today? 
17            A.   That's correct. 
18            Q.   And to your knowledge, you don't 
19   know of TasteMaker ever having seen this paper, 
20   correct? 
21            A.   Again, I have no knowledge one way 
22   or the other. 
23            Q.   As part of your work for TasteMaker, 
24   the University of Cincinnati did do some 
0184
 1   literature searches, correct? 
 2            A.   That's how we came up with the NIOSH 
 3   document. 
 4            Q.   And you tried to be -- You and the 
 5   others doing it tried to be as thorough as you 
 6   could doing the literature searches? 
 7            A.   Yes. 
 8            Q.   And you did not come up with this 
 9   study, correct? 
10            A.   No, we did not.  Again, when we do 
11   literature searches, it has to do with 
12   peer-reviewed journals mostly; so if it's not in a 
13   peer-reviewed publication, we may not see it. 
14            Q.   And you make that comment because 
15   Exhibit 7, this BASF, is not a peer-reviewed 
16   publication? 
17            A.   That's correct. 
18            Q.   I believe you said that, in addition 
19   to making the presentation at FEMA back in the 
20   1996 time frame, you spoke publicly about your 
21   work for TasteMaker on at least four other 
22   occasions prior to today? 
23            A.   Yes. 
24            Q.   There was the presentation at the 
0185
 1   American Occupational Health Conference in 
 2   Orlando, Florida, in May of '97? 
 3            A.   Yes. 
 4            Q.   There was the presentation at the 
 5   Occupational and Environmental Medicine Grand 
 6   Rounds at the University of Rochester in 
 7   Rochester, New York, in December '97? 
 8            A.   Yes. 
 9            Q.   In August '01, you made a 
10   presentation for NIOSH down in Morgantown, West 
11   Virginia? 
12            A.   Correct. 
13            Q.   Then an abstract went out about 
14   that? 
15            A.   To the ATS, American Thoracic 
16   Society, that's correct. 
17            Q.   Well, the article went out with ATS, 
18   but an abstract went out with regard to your 
19   presentation at NIOSH; wasn't there some publicity 
20   about that? 
21            A.   We made the presentation in 
22   Morgantown, and then I submitted an abstract for 
23   presentation to the American Thoracic Society. 
24            Q.   And you said you also had some 
0186
 1   discussions with Kay Kreiss? 
 2            A.   Yes. 
 3            Q.   Prior to the presentation in August 
 4   '01? 
 5            A.   That's correct. 
 6            Q.   And then, as you referenced, in May 
 7   '02, you made the American Thoracic Society 
 8   presentation? 
 9            A.   Yes. 
10            Q.   Counsel marked and discussed with 
11   you Exhibit 29, which were some notes from a phone 
12   call you had with a Mr. Fred King at Givaudan.  
13            A.   Yes. 
14            Q.   And this was in regard to your 
15   upcoming presentation to ATS, correct? 
16            A.   That's correct. 
17            Q.   And you noted that in the first 
18   paragraph you felt it would be best to present the 
19   findings because of public health indications, and 
20   you explained that you thought Givaudan Roure had 
21   done everything correctly in relationship to 
22   investigating the outbreak at their facility and 
23   had taken aggressive and appropriate action, 
24   correct? 
0187
 1            A.   That's correct. 
 2            Q.   And then later you say that you 
 3   thought Givaudan Roure had a good story to tell, 
 4   correct? 
 5            A.   That's correct. 
 6            Q.   And although, as Counsel pointed 
 7   out, you told Mr. King that you'd be willing to 
 8   withdraw your presentation, Mr. King got back to 
 9   you and said that he felt your approach was 
10   totally correct and that you should proceed with 
11   the presentation, correct? 
12            A.   That's correct. 
13            Q.   He did not ask you to withdraw your 
14   presentation, correct? 
15            A.   No, he did not. 
16            Q.   In fact, he agreed that you should 
17   present, correct? 
18            A.   He agreed that I should go ahead and 
19   make the presentation. 
20            Q.   You were asked some questions about 
21   Exhibit 12, which was your confidentiality 
22   agreement back with TasteMaker in 1995.  And 
23   Counsel asked you about a specific paragraph, no. 
24   5 on page 3, and he read part of the paragraph 
0188
 1   that says that, "Some aspects of the project may 
 2   be initiated at the direction of the undersigned 
 3   as general counsel for TasteMaker," and in such 
 4   instances you were to label the documents as 
 5   Privileged and Confidential Prepared at the 
 6   Request of Counsel, correct? 
 7            A.   Yes. 
 8            Q.   That did not apply to all of your 
 9   work on the project, correct? 
10            A.   My assumption is no.  I certainly 
11   did not stamp everything with that title on it. 
12            Q.   And you noted, I think with respect 
13   to another exhibit, that Givaudan reminded you 
14   that it had the right to request the return of 
15   documents; but in fact, it never did request the 
16   return of all of your documents, correct? 
17            A.   No. 
18            Q.   No, it did not, correct?  
19            A.   That's correct, it did not. 
20            Q.   And as reflected in Exhibit 12, 
21   TasteMaker expressed its concern with proprietary 
22   business information; do you recall that? 
23            A.   It did do that, yes. 
24            Q.   And you understand the legitimate 
0189
 1   need to protect trade secrets and proprietary 
 2   information, correct? 
 3            A.   I do. 
 4            Q.   Counsel used the phrase "badgered 
 5   you."  TasteMaker -- Neither TasteMaker nor 
 6   Givaudan ever badgered you about any 
 7   confidentiality provisions; did they? 
 8                  MR. MCCLAIN:  Object to the form of 
 9   the question.  I talked about the -- I asked that 
10   question in relation to the press release, not the 
11   confidentiality provisions.  
12            Q.   Well, in any event, let's take it as 
13   represented by Counsel.  Even with respect to the 
14   press release, Givaudan did not badger you about 
15   that; did they? 
16            A.   I will say that, when I got the 
17   second letter from Attorney King, I considered it 
18   a warning about making presentations, et cetera. 
19            Q.   And what he asked for was that you 
20   give them advanced notice, correct? 
21            A.   That's correct. 
22            Q.   And you never did request to make 
23   any public presentation that Givaudan refused 
24   permission, correct? 
0190
 1            A.   No, I had not asked them about 
 2   making public presentations, that's correct. 
 3            Q.   You were asked some questions about 
 4   Jasper, Missouri, and the Jasper, Missouri, 
 5   popcorn plant.  Is it accurate that you have not 
 6   studied any of the individuals or the plant 
 7   conditions at the Jasper popcorn plant? 
 8            A.   That's correct. 
 9            Q.   You've never been to that plant? 
10            A.   No, I have not. 
11            Q.   You've never seen any of the 
12   employees from that plant? 
13            A.   No, I have not. 
14            Q.   You never reviewed any employee's 
15   records from that plant? 
16            A.   No, I have not. 
17            Q.   You have not made any analysis about 
18   the differences between anything that happened at 
19   Jasper, Missouri, and anything that happened at 
20   TasteMaker? 
21            A.   No, I have not. 
22            Q.   You've not made any analysis of the 
23   differences between anything that happened at 
24   Jasper and anything that happened at the ConAgra 
0191
 1   plant in Marion? 
 2            A.   No, I have not. 
 3            Q.   You were shown Exhibit 4, which was 
 4   a copy of an article by Kathleen Kreiss and others 
 5   in the "New England Journal of Medicine."  You 
 6   were not involved in coming up with that study or 
 7   this presentation; were you? 
 8            A.   No, I was not. 
 9            Q.   Go through my notes here, excuse me.  
10                 Counsel was going through some of 
11   the qualifications that you have in your extensive 
12   CV, and you mentioned you had others working with 
13   you at the University of Cincinnati on this 
14   project, correct? 
15            A.   Yes. 
16            Q.   And, in fact, University of 
17   Cincinnati is noted as having one of the country's 
18   leading programs on occupational health, correct? 
19            A.   Yes. 
20            Q.   And all that expertise that was 
21   available was brought to bear with regard to the 
22   work that you were doing for TasteMaker, correct? 
23                  MR. MCCLAIN:  Object to the form of 
24   the question.  
0192
 1            A.   In relationship to the medical 
 2   aspect of the program, that's correct. 
 3            Q.   You never formed an opinion as part 
 4   of your work for TasteMaker that there was any 
 5   harm that was being caused to any customers of 
 6   TasteMaker? 
 7                  MR. MCCLAIN:  Object to the form of 
 8   the question, and it assumes he was asked to do 
 9   work in that regard.  
10            A.   Would you ask the question again?
11            Q.   Yeah.  You never formed an opinion 
12   during any of your work on behalf of TasteMaker 
13   that there was any harm being caused to any 
14   customers of TasteMaker? 
15            A.   No, I did not form any opinion. 
16            Q.   You talked about the fact that one 
17   of the issues is whether this is a local problem 
18   only at the Cincinnati plant of TasteMaker or 
19   whether it went beyond that, correct? 
20            A.   That's correct. 
21            Q.   But in terms of going beyond it, 
22   what you thought was important to look at was 
23   other flavoring manufacturers, other people making 
24   flavorings, correct? 
0193
 1                  MR. MCCLAIN:  Object to the form of 
 2   the question.  
 3            A.   That's correct.  My thrust would 
 4   have been, or was, is this isolated to the 
 5   TasteMaker facility or is it a problem universally 
 6   common to the manufacturing of flavoring agents; 
 7   that would have been the extent. 
 8            Q.   You talked about the fact that you 
 9   learned that TasteMaker was using respirators for 
10   various compounds and substances, correct? 
11            A.   Yes. 
12            Q.   Isn't it a fact that TasteMaker was 
13   not using respirators with its employees who were 
14   working with butter flavoring products? 
15            A.   I don't recall that one way or the 
16   other. 
17            Q.   You talked about, I think you may 
18   not have used the phrase "dose response," but you 
19   talked about the fact that concentrations are very 
20   important in trying to decide whether an agent is 
21   going to cause harm? 
22            A.   Yes. 
23            Q.   And there certainly can be a 
24   difference between the concentrations that workers 
0194
 1   are exposed to when they're working with the raw 
 2   materials to create a flavor as opposed to when 
 3   somebody is working with the flavor that's already 
 4   been created? 
 5                  MR. MCCLAIN:  Object to the form of 
 6   the question, assumes facts not in evidence.  
 7            A.   The concentrations can be different 
 8   depending on the production process. 
 9            Q.   You mentioned that at several places 
10   in the documents, and I think we've gone through a 
11   couple of them, there were some references to 
12   diacetyl in some of your investigation, correct? 
13            A.   Yes. 
14            Q.   And that was over the back of being 
15   a potential irritant, correct? 
16            A.   Yes.  I think Dr. Higley was, as the 
17   flavor toxicologist, was looking at materials that 
18   we all felt may be potentially hazardous, and that 
19   was one of the materials that was listed. 
20            Q.   But in terms of your analysis and 
21   your expertise that you brought to bear, it's fair 
22   to say diacetyl was not even on your radar screen 
23   in terms of being a cause of bronchiolitis 
24   obliterans? 
0195
 1            A.   Of the agents that I thought were 
 2   most hazardous in the people that had 
 3   bronchiolitis obliterans at this plant site, there 
 4   were two index cases where there was acetaldehyde 
 5   directly linked to the disease process, so that 
 6   was on my radar screen.  
 7                 As a cautionary measure because of 
 8   the complexity of the production process, it was 
 9   felt that all exposures in the plant site should 
10   be brought under control. 
11            Q.   Counsel talked to you a few minutes 
12   about Mr. Campbell, Keith Campbell.  Let me ask 
13   you a few questions about that.  
14                 Did Mr. Campbell relate to you that 
15   he never experienced any skin, eye, throat or 
16   nasal irritation when working around butter 
17   flavoring? 
18            A.   You would have to give me his 
19   history and physical examination summary. 
20            Q.   Okay.  There was a group exhibit 
21   that had marked a number of your documents about 
22   Mr. Campbell, I think that was Exhibit 2.  I would 
23   like to -- 
24                  MR. WOODSIDE:  Actually, I think we 
0196
 1   made it 2 and 3.  
 2            Q.   All right.  
 3            A.   If you give me one second to look at 
 4   Mr. Campbell.  
 5            Q.   Doctor, let me save you some time 
 6   and direct you to Exhibit 3, if you could.  
 7            A.   Okay. 
 8            Q.   Exhibit 3 is a copy of your June 13, 
 9   2003 report --
10            A.   Okay. 
11            Q.   -- is that accurate? 
12            A.   That's correct. 
13            Q.   And that's your report on 
14   Mr. Campbell to Susan Borchers, correct? 
15            A.   Yes. 
16            Q.   And the chief complaints you have 
17   down as shortness of breath, correct? 
18            A.   Yes. 
19            Q.   You say in your bottom paragraph -- 
20   Well, let me be sure I've got the same thing.  
21   Your bottom paragraph on the first page, you note 
22   that, "when he was working in January," and that's 
23   2002, "his cough markedly decreased in comparison 
24   to December.  His exercise tolerance was 
0197
 1   increasing, but had not returned to the 
 2   preexisting baseline."  Do you see that? 
 3            A.   Yes. 
 4            Q.   Then you note that on February 2nd, 
 5   '02, there was a salt spill and he noted 
 6   increasing shortness of breath with some chest 
 7   pressure, correct? 
 8            A.   That's correct. 
 9            Q.   And it took about an hour for that 
10   relieve once he left the area? 
11            A.   Yes. 
12            Q.   On the second page in your third 
13   paragraph, you noted that Mr. Campbell had hay 
14   fever until age 12? 
15            A.   Where are you now?
16            Q.   (Indicating.)  About a third of the 
17   way down in your third paragraph.  
18            A.   Yes. 
19            Q.   And down a few lines, you note that 
20   he smoked from age 19 to 33 at 1.5 packs per day 
21   for 21 pack-year history? 
22            A.   1.5 packs per day for 21 pack-year 
23   history, correct. 
24            Q.   And you note that he's living in his 
0198
 1   parents' home, there's dampness with water leakage 
 2   in the basement, correct? 
 3            A.   Yes. 
 4            Q.   And you note that there were indoor 
 5   cats and dogs, correct? 
 6            A.   Yes. 
 7            Q.   And your review of symptoms, you 
 8   have essentially negative, correct? 
 9            A.   Yes. 
10            Q.   Your physical examination on the 
11   next page, the second line, you refer to 
12   Mr. Campbell as being an alert male in no acute 
13   distress, correct? 
14            A.   Yes. 
15            Q.   And down in your third-to-last line 
16   in that section, you say that no wheezing was 
17   noted? 
18            A.   He had prolonged expiretory phase 
19   but no wheezing, that's correct. 
20            Q.   Then over on page 4, you're going 
21   through some of the test results that you had seen 
22   in the file, and you reference a May 12, '02, high 
23   resolution CT scan? 
24            A.   Yes. 
0199
 1            Q.   With no evidence of significant air 
 2   trapping? 
 3            A.   That's correct. 
 4            Q.   You note on the last page, page 6, 
 5   down about four lines, that in your experience 
 6   with removal from exposure, the patients you have 
 7   followed have stabilized and -- I'm sorry.  
 8            A.   That's correct. 
 9            Q.   And have been able to return to the 
10   work force, correct? 
11            A.   With limitations, that's correct. 
12            Q.   Limitations being not being exposed 
13   to further compounds? 
14            A.   Irritating dust, gas, fumes or 
15   mists. 
16            Q.   Do you recall if among the documents 
17   you reviewed in looking at Mr. Campbell was the 
18   treadmill exercise test he was given in March of 
19   '02? 
20            A.   Yes. 
21            Q.   And he reached an estimated work 
22   load of 10.2 mets during that? 
23            A.   I don't -- I didn't write that down, 
24   so I don't have those records with me. 
0200
 1            Q.   Okay.  Go ahead and mark it, then. 
 2   (Deposition Exhibit No. 37 was marked for 
 3   identification.) 
 4            Q.   Exhibit 37, Doctor, that's a March 
 5   25, '02 record on Mr. Campbell about his treadmill 
 6   exercise; do you see that? 
 7            A.   Yes. 
 8            Q.   Do you believe that's one of the 
 9   records you had when you were reviewing the file? 
10            A.   Yes, it is. 
11            Q.   Okay.  And it says, "Findings, the 
12   patient developed no symptoms during exercise"; do 
13   you see that? 
14            A.   Yes, I see that. 
15            Q.   At the bottom it says his exercise 
16   capacity is normal; do you see that? 
17            A.   Yes. 
18            Q.   Okay.  You never did any analysis or 
19   investigation on Mr. Campbell with respect to what 
20   his exercise capacity was; did you? 
21            A.   No, we did not. 
22            Q.   Was a record from the Marion General 
23   Hospital from July 18, '02, one of the records 
24   that you reviewed with respect to Mr. Campbell? 
0201
 1            A.   If I don't have it on my list, 
 2   either I didn't have it or I didn't include it in 
 3   the medical record summary. 
 4            Q.   Let me just ask you a general -- I 
 5   can just read the phrase.  Let me go ahead and 
 6   mark it.  This will be 38. 
 7   (Deposition Exhibit No. 38 was marked for 
 8   identification.) 
 9            Q.   Exhibit 38, Doctor, it's a record, 
10   at the bottom it's dated as least as being 
11   dictated on July 18th, '02, with regard to 
12   Mr. Campbell, Marion General Hospital.  And I 
13   wanted to ask you about this middle paragraph that 
14   talked about "Conventional as well as high 
15   resolution lung window images reveals pulmonary 
16   hyperinflation but without any evidence for 
17   central bronchiectasis or diffuse reticular 
18   nodular pattern that one would expect in a patient 
19   with bronchiolitis obliterans."  
20                 Do you have an understanding of what 
21   that's referring to? 
22            A.   This was done on 9/17/02, okay.  
23            Q.   I think it's 7/18/02.  Do you see 
24   9/17 on here somewhere? 
0202
 1            A.   Correction, 7/18/02.  This would 
 2   have been a conventional HR CT scan.  It did 
 3   indicate hyperinflation.  There was no 
 4   interstitial fibrosis.  There was no nodular 
 5   pattern, no bronchiectasis.  What was your 
 6   question, I'm sorry?
 7            Q.   It makes a comment that you weren't 
 8   seeing things that you would expect to see in a 
 9   patient with bronchiolitis obliterans? 
10                  MR. MCCLAIN:  Where does it say 
11   that?
12            Q.   Do you see those phrases, "without 
13   any evidence for central bronchiectasis or diffuse 
14   reticular nodular pattern that one would expect in 
15   a patient with bronchiolitis obliterans"? 
16            A.   Normally what we see now with 
17   bronchiolitis obliterans is, when you do an HR CT 
18   scan, you have to do a full inspiration and full 
19   expiration, and on expiratory views you see what 
20   we call heterogenous air trapping, and that's an 
21   indication of small airway disease consistent with 
22   bronchiolitis obliterans.  
23                 One of the problems we've had with 
24   bronchiolitis obliterans is that there was no easy 
0203
 1   to make the diagnosis unless you went to open lung 
 2   biopsy.  The advent of the HR CT scan using 
 3   inspiratory/expiratory views helps establish the 
 4   clinical diagnosis with other supporting evidence. 
 5            Q.   Did you look at -- Were you given 
 6   any of Mr. Campbell's records with regard to the 
 7   improvement he saw in his FEV 1 with 
 8   bronchodilators? 
 9            A.   I think that he was seen by a 
10   physician at The Cleveland Clinic who gave him 
11   steroids.  I think after that was done, the 
12   physician in Cleveland Clinic also concurred that 
13   the diagnosis was bronchiolitis obliterans. 
14            Q.   Were you given Dr. Borchers' July 
15   21, '03 report? 
16            A.   July 21?
17            Q.   Yes, sir.  
18            A.   No.  I saw -- No, I don't have a 
19   list of them in my record review, so I must not 
20   have seen them. 
21            Q.   Were you aware that Mr. Campbell had 
22   shown improvement with his FEV 1 after 
23   bronchodilator use? 
24            A.   When we saw him, he went from 1.22 
0204
 1   to 1.31 in his FEV 1 following bronchodilators, 
 2   and if I recall correctly -- I don't have the 
 3   correspondence from the physician in The Cleveland 
 4   Clinic.  If I recall correctly, that physician 
 5   gave the person a short course of Prednisone, but 
 6   I don't know what degree of reversibility he saw. 
 7            Q.   Were you aware that he also saw 
 8   improvement with Advair? 
 9            A.   I don't have those records in front 
10   of me. 
11            Q.   Okay.  Sir, have you ever made any 
12   investigation with respect to what the 
13   concentrations were of any chemicals or compounds 
14   at the Marion ConAgra plant? 
15            A.   No. 
16            Q.   In terms of making any evaluation 
17   with respect to Mr. Campbell's ability to return 
18   to medium work, light work or other work, you've 
19   never made such an evaluation? 
20            A.   I thought he could return to work.  
21   I think I stated in my letter that I thought he 
22   could return to work -- One second.  No, I don't 
23   think I made a determination about his ability to 
24   return to work.  I thought he should have no 
0205
 1   further exposure to irritating dust, gas, fumes or 
 2   mist, should go on a weight reduction program, be 
 3   in a preliminary rehab program.  And then I said 
 4   he should be able to return to work force with the 
 5   above limitations. 
 6            Q.   You certainly never made a prognosis 
 7   that Mr. Campbell was going to need a double lung 
 8   transplant or even a single lung transplant? 
 9            A.   No, but he would have to be followed 
10   closely. 
11            Q.   Were you aware that one of the dusts 
12   that Mr. Campbell was complaining about was 
13   irritation from cleaning out his cat's litter box?
14                  MR. MCCLAIN:  Now we've cracked the 
15   case.  
16            A.   I'm not aware of that. 
17            Q.   Okay.  Now, in your letter that we 
18   referenced, I think it was Exhibit 3, your June 
19   13, '02 detailed letter on Mr. Campbell, you note 
20   as we had mentioned earlier that you noticed some 
21   acute symptoms after a salt spill at work in 
22   February '02, correct? 
23            A.   Yes. 
24            Q.   And in terms of trying to make any 
0206
 1   determination about particularly what specifically 
 2   Mr. Campbell was exposed to at the Marion plant at 
 3   ConAgra and the specific agents that may have 
 4   caused or did cause any illnesses he had, you did 
 5   not make any determination on that? 
 6            A.   No. 
 7            Q.   And I think you said you were given 
 8   certain medical records, but you've not been 
 9   provided all of Mr. Campbell's medical records; is 
10   that accurate? 
11            A.   My assumption is that's correct 
12   based on the questions you're asking me. 
13            Q.   Go ahead and mark as our next 
14   exhibit, 39, an e-mail that you produced. 
15   (Deposition Exhibit No. 39 was marked for 
16   identification.) 
17            Q.   Exhibit 39 is a September 14, '01 
18   e-mail from your files; do you see that? 
19            A.   Yes. 
20            Q.   Is that a true and accurate copy of 
21   a document in your files? 
22            A.   Yes. 
23            Q.   This handwriting on the bottom, is 
24   that yours? 
0207
 1            A.   Yes. 
 2            Q.   Up in the typewritten portion, 
 3   there's some discussion about the Gilster Mary Lee 
 4   plant, and there's a statement that says Dr. 
 5   Horvath -- it says "he wanted you to know," is 
 6   that referring to Dr. Horvath or Brad Mutchler; 
 7   what's your understanding? 
 8            A.   He was referred by Dr. Horvath.
 9            Q.   "He wanted you to know" -- 
10                  MR. WOODSIDE:  Excuse me, I didn't 
11   hear the first part of your answer. 
12                  THE WITNESS:  He was referred by 
13   Dr. Horvath.
14                  MR. WOODSIDE:  Thank you. 
15   BY MR. MACE: 
16            Q.   The statement is:  "He wanted you to 
17   know that Gilster Mary Lee Popcorn plants in both 
18   western and eastern Missouri use the same 
19   ingredients and no problems exist there with" 
20   bronchiolitis obliterans.  Did you do anything to 
21   investigate that issue? 
22            A.   No. 
23            Q.   Do you recall getting any other 
24   further information on that issue? 
0208
 1            A.   No.  I think I got a phone call, but 
 2   I don't have a lot of recollection of the 
 3   conversation other than what's on my notes. 
 4            Q.   Do you know if you have any 
 5   other -- It indicates that Mr. Mutchler was going 
 6   to call you on Tuesday.  Do you know if you have 
 7   any other files anywhere that would have any other 
 8   records of having discussions with Brad Mutchler? 
 9            A.   No, I wouldn't have any files. 
10                  MR. MACE:  Okay.  I have nothing 
11   further for you at this time.  
12                  MR. WOODSIDE:  Can we take a a 
13   2-minute break to go to the facilities?  I will 
14   not take very long.  
15                  THE VIDEOGRAPHER:  We're off. 
16                                     (Brief recess.)
17                  THE VIDEOGRAPHER:  Tape 3, you're 
18   back on the record.   
19                  MR. WOODSIDE:  Dr. Lockey, my name 
20   is Frank Woodside.  I'll be relatively brief.  I 
21   have a number of questions to ask you, and to some 
22   extent I'm going to skip around because I'm going 
23   to follow up on a number of matters that were 
24   asked of you by either Mr. McClain or Mr. Mace, 
0209
 1   and if I lose you, just so indicate and I'll start 
 2   back.  
 3                    CROSS-EXAMINATION
 4   BY MR. WOODSIDE: 
 5            Q.   There has been some brief discussion 
 6   about Exhibit 38, which is I believe a portion of 
 7   Exhibit 8, which is the NIOSH publication dealing 
 8   with the study at International Baker Services, 
 9   Inc., in South Bend, Indiana.  Do you have that in 
10   front of you, sir? 
11            A.   Exhibit 36?  
12            Q.   That's the one, yes, sir.  
13            A.   Okay. 
14            Q.   Would you look at, there is a 
15   summary of that study, which I believe is in the 
16   beginning, okay, and if you look on the right 
17   hand -- Look on the next page.  Now, what I want 
18   to do is just ask you a brief question about the 
19   information there at the end of the summary which 
20   is in the black box.  Do you have that in front of 
21   you? 
22            A.   I do. 
23            Q.   Okay.  And if you would just take a 
24   second to read that, I will just have one question 
0210
 1   to you about it.  
 2            A.   Okay. 
 3            Q.   As a result of the work that NIOSH 
 4   did at the International Baker's study, they 
 5   determined that employees had some severe fixed 
 6   obstructive lung disease, but the specific 
 7   etiology was not identified by NIOSH, correct? 
 8            A.   That's correct. 
 9            Q.   And that means that NIOSH did not 
10   identify the agent or substance that was actually 
11   causing illness in the individuals who were 
12   studied, correct? 
13            A.   That's correct. 
14            Q.   Thank you very much.  
15                 Sir, what is the diagnostic criteria 
16   for bronchiolitis obliterans? 
17            A.   A history of exposure to a material 
18   that is insoluble enough to be deposited in lower 
19   airways, small airways.  If you follow the classic 
20   Scott O-Vista disease definition, at times there 
21   can be acute injurious exposure where somebody 
22   develops an acute shortness of breath, cough, 
23   chest tightness, and wheezing, sometimes will be 
24   diagnosed with pneumonia.  Subsequently, these 
0211
 1   individuals tend to get better and then 
 2   approximately five to six weeks later develop an 
 3   increasing shortness of breath on exertion.  
 4   That's the classical clinical presentation. 
 5            Q.   Are there any classical findings on 
 6   spirometry? 
 7            A.   On spirometry you usually will have 
 8   fixed airway obstruction.  Sometimes there can be 
 9   an obstructive as well as a restrictive component. 
10            Q.   And would you please tell us what 
11   you mean by fixed obstruction.  
12            A.   That means that the FEV 1 
13   parameters, or Forced Expiretory Volume in 1 
14   second parameters, fail to significantly increase 
15   following bronchodilators, and usually the 
16   American Thoracic Society recommends 12 percent 
17   increase or greater.  You can have partial airway 
18   obstruction that's partially reversible; that 
19   doesn't necessarily exclude the diagnosis of 
20   bronchiolitis obliterans.  But if we're putting 
21   diseases into boxes, asthma is defined as 
22   reversible airway obstruction; bronchiolitis 
23   obliterans is described as fixed airway 
24   obstruction, but there can be some overlap. 
0212
 1            Q.   And the standard for determining 
 2   whether it is fixed or not is whether there is a 
 3   12 percent or more increase in the FEV 1 following 
 4   the administration of bronchodilators? 
 5            A.   That's correct.  You could go 
 6   from -- An FVE 1 could go from 1.5 liters to 1.7 
 7   liters, 1.8 liters, and that would represent a 
 8   12-percent increase, but it may remain fixed at 
 9   1.7 liters and never change after that, so that 
10   would be in the category of where there's an 
11   overlap. 
12            Q.   Now, I may have missed something 
13   before, but I'm not certain, so let me approach it 
14   this way.  With regard to the first public 
15   presentation that you made with regard to your 
16   findings as a result of your work at the 
17   TasteMaker plant in Cincinnati, when was that? 
18            A.   It would have been 1997 at a 
19   scientific meeting. 
20            Q.   Okay.  And at that meeting, was that 
21   open to the public? 
22            A.   Yes. 
23            Q.   Was it advertised as being open to 
24   the public? 
0213
 1            A.   Well, let me back off that.  The 
 2   people who can attend a meeting are members of the 
 3   American College of Occupational Environmental 
 4   Medicine, so if you're not a member of that 
 5   organization, you wouldn't be able to get into the 
 6   meeting. 
 7            Q.   Okay.  And at what time or on what 
 8   occasion did you first disseminate or distribute 
 9   to the public written materials that described the 
10   findings and conclusions that you had as a result 
11   of the work that you did at TasteMaker pursuant to 
12   the contract you had with TasteMaker that you 
13   discussed today? 
14            A.   You mean, the nonscientific meetings 
15   but to the public as a whole?
16            Q.   Yes.  What I think I asked, when you 
17   would have distributed any written materials? 
18            A.   I'm sorry.  Does that include 
19   colleagues in the medical profession?  That's what 
20   I'm asking.  
21            Q.   You can define it however you would 
22   like, because the next question I'm going to ask 
23   you is what did you distribute, and I will tell 
24   you that I don't know of anything that you 
0214
 1   distributed other than abstract.  
 2            A.   At the presentations at Rochester 
 3   and ACOEM, I very well may have handed out a 
 4   continuing education packet, which you have to do 
 5   to get continuing education credit, so most 
 6   likely, I did hand something out in 1997.  But the 
 7   question is do I still have a copy of that; and I 
 8   most likely do not. 
 9            Q.   So in 1997 there would have been the 
10   presentation at the professional society, which 
11   would have been an organization to which one could 
12   gain admittance only if one were a member of that 
13   society, correct? 
14            A.   That's correct. 
15            Q.   And I believe the second session was 
16   a grand rounds at an academic institution? 
17            A.   That's correct. 
18            Q.   And that would generally have been a 
19   meeting that only individuals who were in a 
20   training program at that institution or faculty 
21   members at that institution would attend, correct? 
22            A.   That's correct. 
23            Q.   And just so we're clear, grand 
24   rounds sessions are held at all medical academic 
0215
 1   institutions? 
 2            A.   They are. 
 3            Q.   Okay.  Now, with regard to the 
 4   presentation that you made at the NIOSH meeting on 
 5   October 25, 2001, you personally did not single 
 6   out -- 
 7            A.   It was August. 
 8            Q.   I'm sorry.  August 25, 2001? 
 9            A.   Yes. 
10            Q.   Let me back up and rephrase my 
11   question.  With regard to the presentation that 
12   you made on August 25, 2001, at the NIOSH interim 
13   meeting in Morgantown, West Virginia, you yourself 
14   did not specifically identify diacetyl or butter 
15   flavoring as a cause of the bronchiolitis 
16   obliterans that you diagnosed and detected in the 
17   TasteMaker workers, correct? 
18            A.   That's correct. 
19            Q.   Okay.  In addition, at the American 
20   Thoracic Society meeting in May 2002, you did not 
21   identify diacetyl or the butter flavoring as a 
22   causative agent of the bronchiolitis obliterans 
23   that you detected in the workers that you 
24   evaluated at TasteMaker, correct? 
0216
 1            A.   That's correct. 
 2            Q.   And, indeed, the only two substances 
 3   that you specifically identified that might be 
 4   potentially harmful were acetaldehyde and 
 5   capsaicin, correct? 
 6            A.   That's correct. 
 7            Q.   And capsaicin is basically pepper 
 8   flavoring? 
 9            A.   It's the peppers, the hot peppers 
10   that we eat, that's correct. 
11            Q.   Okay.  I'm going to ask you a series 
12   of questions about two different companies, and 
13   I'll try and go through basically the same 
14   questions about each of the companies.  I'm going 
15   to do them serially.
16                 First of all, have you ever had 
17   occasion to consult with or communicate with Bush 
18   Boake Allen? 
19            A.   No. 
20            Q.   Prior to today did you even know 
21   that there was such a company? 
22            A.   No. 
23            Q.   You've never received any money from 
24   Bush Boake Allen that you know of? 
0217
 1            A.   Not that I'm aware of. 
 2            Q.   And just so you're clear, I don't 
 3   know that you've ever had any dealings with them, 
 4   either.  I mean, I don't believe you have, but I 
 5   just want to make sure.  
 6   (Mr. Crick left the room.)
 7            Q.   To the extent that you reached 
 8   conclusions and generated reports as a result of 
 9   the work that you did at the request of 
10   TasteMaker, you did not pass those conclusions or 
11   thoughts on to Bush Boake Allen; did you? 
12            A.   No, I did not. 
13            Q.   And, in fact, you do not know of or 
14   have any information suggesting that your thoughts 
15   or conclusions in any form, shape or manner were 
16   passed on to Bush Boake Allen, correct? 
17            A.   That's correct. 
18            Q.   Okay.  To the best of your 
19   knowledge, you don't have any information 
20   suggesting that the information that you passed on 
21   to FEMA with regard to the findings of your 
22   studies were ever passed on by FEMA to Bush Boake 
23   Allen; do you? 
24            A.   I have no knowledge of that one way 
0218
 1   or the other. 
 2            Q.   Okay.  Now, have you ever consulted 
 3   with International Flavors & Fragrances, which is 
 4   frequently abbreviated IFF? 
 5            A.   No. 
 6            Q.   Okay.  Have you ever been paid any 
 7   money by International Flavors & Fragrances? 
 8            A.   No. 
 9            Q.   Have you ever had any communications 
10   with International Flavors & Fragrances? 
11            A.   Not that I'm aware of. 
12            Q.   Okay.  To the best of your 
13   knowledge, your conclusions and thoughts that were 
14   developed as a result of your work that you did 
15   for TasteMaker was not passed on by anyone to 
16   International Flavors & Fragrances, correct; you 
17   just don't know either way? 
18            A.   I don't know either way. 
19            Q.   All right.  
20            A.   I mean, I did present to the results 
21   to FEMA, but I don't know whether they passed that 
22   on or not. 
23            Q.   Okay.  And at the meetings -- Strike 
24   that.  I was going to make an incorrect statement.  
0219
 1                 Did you just have one meeting with 
 2   FEMA? 
 3            A.   Yes. 
 4            Q.   Okay.  And I assume that was in 
 5   person in Washington or wherever? 
 6            A.   Yes. 
 7            Q.   Okay.  Did you have any other 
 8   communications with FEMA about the work that you 
 9   did for or at the request of TasteMaker? 
10            A.   No. 
11            Q.   Okay.  Do you know with whom you 
12   actually met at FEMA? 
13            A.   Other than the names on my list, 
14   that's all I can tell you. 
15            Q.   Okay.  And you do not believe that 
16   at that meeting there were any employees of 
17   International Flavors & Fragrances or any 
18   employees of Bush Boake Allen, correct?  
19   (Mr. Crick returned to the room.)
20            A.   I don't think so, but again, I don't 
21   have any knowledge one way or the other. 
22            Q.   Okay.  Now, would you get out 
23   Exhibit No. 24.  I think it's somewhere -- That 
24   is, it's a set of your notes from your -- I think 
0220
 1   it's from your meeting at FEMA, but quite frankly, 
 2   I'm not positive.  
 3            A.   All right. 
 4            Q.   Is that this one?  (Indicating.) 
 5            A.   Yes. 
 6            Q.   Okay.  Now, I recall that during -- 
 7   Strike that.
 8                 Is the information that you have 
 9   recorded in handwritten fashion on this exhibit 
10   information that you learned prior to going to 
11   your meeting with FEMA or at your meeting with 
12   FEMA or something else, if you know? 
13            A.   This is probably, when I look at it, 
14   it probably is a work sheet developed with meeting 
15   with TasteMaker prior to the meeting with FEMA, 
16   but I can't absolutely be sure of that. 
17            Q.   Now, let me just be real straight 
18   about one specific issue on here.  You note on 
19   this page that there are, I think, two references 
20   to IFF; do you see that? 
21            A.   Yes. 
22            Q.   And there are also a number of 
23   references starting in the upper right-hand corner 
24   with companies such as Kraft, Coke, Pepsi, 
0221
 1   Campbell, P&G; do you see those? 
 2            A.   Yes. 
 3            Q.   Okay.  You did not mean to indicate 
 4   by this piece of paper that representatives for 
 5   any of those companies were actually present at 
 6   the meeting you personally had with FEMA, correct? 
 7            A.   No, that's correct. 
 8            Q.   Would you please look at Exhibit 33.  
 9   Thirty-three is your notarized statement dealing 
10   with your discussion with Mr. Messbarger or 
11   perhaps your lack of discussion with 
12   Mr. Messbarger, however you characterize it.  
13   Well, I can ask the question without reviewing the 
14   document.  
15            A.   Okay.  
16            Q.   You recall that you were asked some 
17   questions by Mr. McClain about your telephone 
18   conversation with Mr. Messbarger? 
19            A.   Yes. 
20            Q.   Okay.  And you advised 
21   Mr. Messbarger that you had signed a 
22   confidentiality agreement in order to gain access 
23   to the facility to help in the workplace 
24   evaluation and information could not be released, 
0222
 1   correct? 
 2            A.   That's correct. 
 3            Q.   And that same confidentiality 
 4   agreement would have prevented you from releasing 
 5   information to competitors of TasteMaker, such as 
 6   BBA and IFF, correct? 
 7            A.   I assume so, yes. 
 8            Q.   Okay.  I expect that the answer to 
 9   this question is you don't have any information 
10   either way, but I have to ask it out of the need 
11   to be compulsive.  
12                 I assume that you have no knowledge 
13   whether TasteMaker did or did not ever pass on to 
14   or communicate with IFF and BBA the results of the 
15   work that you did? 
16            A.   I have no information one way or the 
17   other. 
18            Q.   For the purpose of this next 
19   question, let's assume that the word "published" 
20   means disseminated in a peer-reviewed journal, 
21   disseminated in a nonpeer-reviewed journal, put on 
22   a poster session, or distributed in an abstract or 
23   anything closely akin thereto, okay; you 
24   understand? 
0223
 1            A.   I understand. 
 2            Q.   Okay.  With regard to the 
 3   presentations that you would have made at the 
 4   grand rounds session at Rochester and the 
 5   professional organization session in Florida, you 
 6   do not believe that any of your materials were 
 7   published and made generally available as a 
 8   result, correct? 
 9            A.   That's correct. 
10                  MR. WOODSIDE:  Okay.  I have no 
11   further questions, but when we get done, I have 
12   two things to put on the record.  
13                  MR. WARD:  Ken?  
14                  MR. MCCLAIN:  Yes. 
15                  MR. WARD:  I just have one 
16   question, well, probably more than that, but with 
17   regard to the use of -- assuming that any portion 
18   of this deposition gets read at or in our cases, 
19   do you have any objection to me utilizing 
20   questions asked by Givaudan's attorney or do I 
21   need to go through and ask those questions, some 
22   of those questions anyway, again to ensure that 
23   they get used or they can be used if we get to it 
24   in our cases?  
0224
 1                  MR. MCCLAIN:  It was cross-noticed 
 2   in your case, so I would think that the rules 
 3   permit you to use those questions subject to our 
 4   objections. 
 5                  MR. WOODSIDE:  That would my 
 6   understanding. 
 7                  MR. WARD:  I thought so.  I just 
 8   wanted to make that clear, and then with that, 
 9   then I don't have any questions.  
10                  REDIRECT EXAMINATION
11   BY MR. MCCLAIN: 
12            Q.   Dr. Lockey, let me follow up on 
13   several of these issues that have been brought up 
14   by Mr. Mace and Mr. Woodside.  
15                 First of all, it would not be 
16   correct to say that acetaldehyde was the only 
17   chemical that you were concerned about at the 
18   TasteMaster facility? 
19            A.   That's correct. 
20            Q.   Isn't that right? 
21            A.   That's correct. 
22            Q.   You were concerned about the 
23   chemical diacetyl; isn't that true?
24            A.   That was one -- 
0225
 1                  MR. WOODSIDE:  Objection, leading.  
 2            A.   It was one of the chemicals that was 
 3   brought out in this project team meetings based on 
 4   the case series that we had.  For two or three of 
 5   the cases we did identify the acetaldehyde was 
 6   most likely the offending agent because of the 
 7   circumstances.  But because there were so many 
 8   other agents used at the facility, including 
 9   diacetyl, our recommendations were as stated 
10   previously, go to a chemical model in relationship 
11   to exposure controls. 
12            Q.   Now, just so that we're clear, your 
13   group at the University of Cincinnati did not 
14   supply the toxicologist for the working group; did 
15   they? 
16            A.   That's correct. 
17            Q.   It was supplied by TasteMaker, 
18   correct? 
19            A.   That's correct. 
20            Q.   And it was TasteMaker who identified 
21   what chemicals in the plant were hazardous and 
22   what those hazards were; isn't that true? 
23                  MR. MACE:  Continuing objection to 
24   leading.  
0226
 1            A.   Yes.  Dr. Higley put together a 
 2   priority list which included the chemicals we had 
 3   previously reviewed. 
 4            Q.   And of those you identified three, 
 5   and diacetyl was one of those three, correct? 
 6            A.   That's correct. 
 7            Q.   Now, in regard to the workers who 
 8   were exposed to high concentrations of 
 9   acetaldehyde, you did not rigorously go through 
10   their other exposures to rule out significant 
11   exposure to diacetyl; did you? 
12            A.   I'd have to go back and look at each 
13   case and their occupational histories.  I remember 
14   the cases we had, at least three of the cases had 
15   a fairly classical presentation in that one lady 
16   had her head in a mixing tank with 35 percent 
17   acetaldehyde, and she became acutely symptomatic 
18   and then six weeks later developed dyspnea on 
19   exertion or shortness of breath on exertion.  And 
20   so in two or three of the cases, it was clear-cut, 
21   and in the other cases, it was not. 
22            Q.   All right.  And you know that in 
23   those other cases that there was diacetyl being 
24   used in the plant? 
0227
 1            A.   Yes. 
 2            Q.   And you do now know and do believe 
 3   that diacetyl will cause bronchiolitis obliterans; 
 4   is that true? 
 5                  MR. WOODSIDE:  Objection to form. 
 6                  MR. MACE:  Objection. 
 7                  MR. WARD:  Objection to form of the 
 8   question.  
 9            A.   Based upon the information that's 
10   been published, yes. 
11            Q.   Now, there were some questions, 
12   Doctor, that were asked about whether or not you 
13   believed it was a unique setting at the 
14   TasteMaker's plant; do you remember those 
15   questions by Mr. Mace?  
16                 He asked you, didn't you think that 
17   this was a unique setting at the TasteMaker plant, 
18   that you were unaware of other plants where this 
19   had occurred.  
20            A.   I don't recall that question. 
21            Q.   Well, that's important because I 
22   thought that's the way you answered to him, and I 
23   didn't think that's what you meant.  
24            A.   I don't recall that question. 
0228
 1            Q.   In fact, you told FEMA that you were 
 2   concerned that this was not a unique situation; 
 3   isn't that true? 
 4            A.   It was my concern that this may be 
 5   occurring at other food flavoring manufacturing 
 6   facilities and there was a need to look at the 
 7   other workers. 
 8            Q.   All right.  And FEMA told you that 
 9   they thought it was a unique situation at the 
10   TasteMaker plant, correct? 
11            A.   That's correct. 
12            Q.   So it wasn't, again, your decision; 
13   it was FEMA's representation that brought that to 
14   the fore? 
15            A.   That's correct. 
16            Q.   Now, one of the things that I found 
17   in your records was the OSHA Right to Know law.  
18   Are you familiar with that standard? 
19            A.   Yes. 
20            Q.   That's one of the things that your 
21   institution deals with regularly? 
22            A.   Yes. 
23            Q.   A chemical manufacturer has certain 
24   obligations under that standard; don't they, 
0229
 1   Doctor? 
 2            A.   Yes, they do. 
 3            Q.   Andone of the obligations that a 
 4   chemical manufacturer undertakes is to know what 
 5   the hazards of their own product are; isn't that 
 6   true?
 7                  MR. MACE:  Objection to form, calls 
 8   for a legal conclusion. 
 9            A.   Yes, that's correct. 
10            Q.   And in this instance the chemical 
11   manufacturer would be TasteMaker; isn't that 
12   right, they're a chemical manufacturer by 
13   definition? 
14                  MR. MACE:  Objection, calls for 
15   legal conclusion.  
16                  MR. WARD:  Join in that objection.  
17            A.   My assumption is yes, they would be 
18   considered a chemical manufacturer. 
19            Q.   And under the standard, they must 
20   know the hazards of their products, correct? 
21                  MR. MACE:  Objection. 
22                  MR. WARD:  Join in that objection.  
23            A.   Yes. 
24            Q.   Did they ever tell you, Doctor, that 
0230
 1   diacetyl would cause bronchiolitis obliterans? 
 2                  MR. MACE:  Objection, assumes.  
 3            A.   No. 
 4            Q.   Did they supply you any tests of 
 5   diacetyl or butter flavor in your consultation 
 6   with them? 
 7            A.   Any animal tests?
 8            Q.   Any tests at all, human tests, 
 9   animal tests, anything.  
10            A.   I don't think there was any animal 
11   test or human tests that were made available to 
12   us.  I think they did look at all of the materials 
13   that they were working with and tried to rank them 
14   in relationship to potential toxicity, and 
15   diacetyl did fall out on that list. 
16            Q.   Meaning that it was something that 
17   people were exposed to in large amounts? 
18            A.   It was -- 
19                  MR. MACE:  Objection, 
20   characterization.  
21            A.   It was something that based on the 
22   chemical profile needed to be looked at in more 
23   detail. 
24            Q.   Doctor, there's -- there was some 
0231
 1   questions regarding did you recommend various 
 2   warnings to customers of TasteMaker's; do you 
 3   remember those questions? 
 4            A.   Yes. 
 5            Q.   Was that within the scope of the 
 6   work that you were hired do? 
 7            A.   No. 
 8            Q.   So no one asked you to answer the 
 9   question should we warn our customers; am I right? 
10            A.   That's correct.  I think the next -- 
11   Logically the next step for me would have been, 
12   all right, is this isolated to this plant site, 
13   i.e., is it something unique about this plant site 
14   that's causing the problem or it may be something 
15   that's nonwork related, such as a virus that went 
16   through the plant site.  If you look at other 
17   plant sites and identify the same problem, then 
18   you know it's an industry problem, not just a 
19   local problem, and at that point, then you would 
20   expand. 
21            Q.   But no one asked you to take even 
22   the next to step to determine whether this was an 
23   industry problem; is that correct? 
24            A.   We suggested it to FEMA, but we 
0232
 1   never got a response. 
 2            Q.   And so no one asked you to even look 
 3   at other food manufacturing plants, correct? 
 4            A.   That's correct. 
 5            Q.   Or chemical manufacturing plants? 
 6            A.   That's correct. 
 7            Q.   Let me -- Let's start again so that 
 8   we're clear.  No one asked you to look at other 
 9   flavor manufacturing plants that you have 
10   identified as really chemical manufacturers, 
11   correct? 
12            A.   That's correct. 
13                  MR. WOODSIDE:  I object to the form 
14   of the question.  
15            Q.   So you never even got to the issue 
16   of what were the customers being exposed to? 
17            A.   That's correct. 
18            Q.   Because no one asked you to look at 
19   that? 
20                  MR. MACE:  Objection.  
21            A.   That would have been the third step 
22   in a three-step process. 
23            Q.   So when Mr. Mace said that you 
24   didn't recommend any warnings to customers, it's 
0233
 1   not because you had made a determination that 
 2   customers were safe; am I right? 
 3            A.   No, I had not even thought about 
 4   customers at that point.  I was thinking that, 
 5   well, is this isolated to this plant site or is 
 6   this an industry problem. 
 7            Q.   Now, Doctor, let me just -- Let's 
 8   take it back to this process.  If you had, Doctor, 
 9   if you had had the 1993 study on diacetyl and if 
10   you were aware that in the microwave popcorn 
11   industry concentrations were created higher than 
12   those concentrations in the manufacture of the 
13   butter flavor, would you have been concerned about 
14   companies like the Jasper popcorn plant or the 
15   Marion ConAgra plant and the exposures occurring 
16   to workers? 
17                  MR. MACE:  Objection assumes.  
18   Objection to form.  Objection, improper 
19   hypothetical. 
20                  MR. WOODSIDE:  All of those 
21   objections, speculative also. 
22                  MR. WARD:  Join the objection.
23            A.   I would have been concerned about 
24   that process within the TasteMaker facility.  I 
0234
 1   would have looked there first to see what the 
 2   exposures are, if any of the workers had any 
 3   abnormalities, and compare the exposures in the 
 4   plant site in comparison to what they might have 
 5   been at end user plant sites. 
 6            Q.   And, Doctor, no one asked you to 
 7   look at this whole range of exposure issues; did 
 8   they? 
 9            A.   No.  They did do industrial hygiene 
10   measurements at TasteMaker trying to identify 
11   where the potential exposures existed, and I'm 
12   sure they looked for diacetyl, I'm sure they 
13   looked for acetaldehyde, because that was on our 
14   list of priority agents to look at. 
15            Q.   But today you don't have -- you 
16   don't know whether you were supplied with any of 
17   that data and you don't know what the conclusions 
18   are in terms of correlation of that data with your 
19   results? 
20            A.   I think probably we were presented 
21   with that data because they had some good 
22   industrial hygienists on board, but I don't recall 
23   what that data was. 
24            Q.   Now, would it have been in your 
0235
 1   records if that data existed? 
 2            A.   That data probably remained with 
 3   TasteMaker. 
 4            Q.   So you don't even have that data 
 5   today? 
 6            A.   That's correct. 
 7            Q.   And would that be covered by this 
 8   confidentiality agreement? 
 9            A.   I don't think I ever actually had 
10   copies of that data, as far as I'm aware anyway. 
11            Q.   Now, in regard to this BASF rat 
12   study that we showed you in this case -- 
13            A.   Yes. 
14            Q.   -- were you aware that that study 
15   was in FEMA's possession? 
16            A.   No. 
17            Q.   Did they offer to you -- 
18                  MR. MACE:  Objection, timing. 
19            Q.   Did they offer to you any 
20   information about diacetyl or what was chemically 
21   known about the product? 
22                  MR. MACE:  Objection, vague.  
23                  MR. WOODSIDE:  Object, speculative, 
24   assumes facts not in evidence. 
0236
 1            A.   No.
 2                  MR. WARD:  Join.
 3            Q.   Now, when you, Doctor, talked to 
 4   Mr. Mace about public presentations of your 
 5   findings at the TasteMaker plant and he asked you 
 6   about the fact that these were made and no one 
 7   from TasteMaker had objected to them, no one knew 
 8   that you were making them until you made the ATS 
 9   presentation; isn't that right? 
10            A.   That's correct. 
11            Q.   As soon as they knew about them, 
12   they objected to them; is that correct? 
13                  MR. MACE:  Objection.  
14            A.   I was asked about the presentations, 
15   and I received the letter that's one of their 
16   exhibits reflecting their concern. 
17            Q.   And by this time, you had already 
18   submitted the abstract to the American Thoracic 
19   Society; isn't that right? 
20            A.   Yes, I had. 
21            Q.   And essentially, in your memo -- and 
22   we can go back to the language, you told them I'll 
23   withdraw it, but if I withdraw it, it will make 
24   you look bad, it will make you look like you're 
0237
 1   trying to hide something; isn't that essentially 
 2   what you told them? 
 3            A.   Essentially, that's correct. 
 4            Q.   And under those circumstances, he 
 5   let you publish it, correct? 
 6            A.   He said to go ahead and make the 
 7   presentation, that's correct. 
 8            Q.   But you interpreted his second 
 9   letter to you to be a warning not to do it again; 
10   isn't that true, Doctor? 
11                  MR. MACE:  Objection.  
12            A.   Yes, that is true. 
13            Q.   And you heeded his warning? 
14            A.   Yes. 
15            Q.   And today they're still claiming 
16   privilege over this information.  We saw a 
17   document here today where they haven't produced a 
18   letter from a lawyer to you that was in your 
19   files; did you see that? 
20                  MR. MACE:  Objection, objection to 
21   compound.  
22            A.   I haven't -- Is there some document 
23   that reflects that?
24            Q.   (Indicating.) 
0238
 1            A.   I see that now, yes. 
 2            Q.   And that is a letter to you from a 
 3   lawyer representing TasteMaker, correct? 
 4            A.   Yes. 
 5            Q.   And they're still claiming that it's 
 6   privileged, as far as you know? 
 7            A.   That's correct. 
 8            Q.   From your files? 
 9            A.   Yes. 
10            Q.   You're not claiming that it's 
11   privileged? 
12            A.   No. 
13            Q.   They are? 
14            A.   That's correct.  
15            Q.   Okay.  And we'll mark this as 
16   Exhibit 40. 
17   (Deposition Exhibit No. 40 was marked for 
18   identification.) 
19            Q.   Now, Doctor, let's talk about 
20   Mr. Campbell.  Mr. Mace asked you a series of 
21   questions picking little phrases out of the 
22   reports.  
23                 Keith Campbell has bronchiolitis 
24   obliterans; isn't that true? 
0239
 1            A.   Based on the available information, 
 2   that's most likely what he has, that's correct. 
 3            Q.   To a reasonable degree of medical 
 4   certainty, that's your opinion? 
 5                  MR. WOODSIDE:  Objection, leading.  
 6            Q.   Doctor, do you hold that opinion a 
 7   reasonable degree of -- 
 8            A.   I hold that opinion to a reasonable 
 9   degree of medical certainty and probability. 
10            Q.   He doesn't have asthma? 
11            A.   No. 
12            Q.   And bronchiolitis obliterans is not 
13   caused by salt? 
14                  MR. MACE:  Objection.  
15            A.   No. 
16            Q.   And you not only reviewed his 
17   medical records, you did an IME, an independent 
18   medical exam of him? 
19            A.   That's correct. 
20            Q.   So you not only saw his medical 
21   records, you also did a physical exam of -- 
22                  MR. MACE:  Continuing objection to 
23   leading.  
24            A.   Physical exam and did some extra 
0240
 1   tests on him. 
 2            Q.   All right.  And so that's the reason 
 3   you're able to come to those conclusions; is that 
 4   right? 
 5            A.   That's correct. 
 6            Q.   And, now, Mr. Mace gave you some 
 7   information where you were told something about a 
 8   Paducah, Kentucky, plant; do you have that 
 9   document here in front of us? 
10            A.   Paducah, Kentucky?
11            Q.   There was an e-mail, there was an 
12   e-mail regarding Paducah, Kentucky, and there was 
13   a claim that the Gilster Mary Lee plant didn't 
14   have any disease; do you see that? 
15                  MR. MACE:  Objection, 
16   mischaracterization.  
17            A.   Yes, I see that. 
18            Q.   But then you have a handwritten note 
19   below about the Missouri plant? 
20            A.   Western Missouri five people with -- 
21   awaiting lung transplant, and diacetyl compound at 
22   38 parts per billion in the plant site, 150 
23   employees in respirators or airline respirators. 
24            Q.   So your information was, is that the 
0241
 1   plant in Missouri had how many people on the lung 
 2   transplant list? 
 3                  MR. WOODSIDE:  Object, hearsay.  
 4            A.   Based on my notes, it says five, 
 5   along with my doodles. 
 6            Q.   Now, Doctor, let's -- Mr. Woodside 
 7   asked you some questions about you didn't directly 
 8   inform IFF or BBA; do you remember those 
 9   questions? 
10            A.   Yes. 
11            Q.   And he said that the confidentiality 
12   agreement that prevented Mr. Messbarger from 
13   finding out about the study would have prevented 
14   him from finding out about the study; do you 
15   remember those questions? 
16            A.   Yes. 
17                  MR. WOODSIDE:  Object.  That's not 
18   quite what I said, close.  
19            Q.   Doctor, there's no kind of trade 
20   secret for a health effect; is there? 
21            A.   No. 
22            Q.   And so you informed FEMA, the 
23   organization that IFF and BBA belong to; am I 
24   right? 
0242
 1                  MR. WOODSIDE:  Object.  
 2            A.   Yes. 
 3            Q.   And in Exhibit 8 that we looked at 
 4   today, they said that they informed their members 
 5   about what you told them; isn't that true? 
 6                  MR. WOODSIDE:  I object.  
 7            A.   Can I see it?  
 8                  MR. WOODSIDE:  Wait a minute.  I 
 9   object to the form of the question.  It doesn't 
10   identify the time.  It doesn't identify the place 
11   or who "they" is because as you -- Mr. McClain, if 
12   you follow from your last question, that would 
13   appear that IFF and BBA informed somebody because 
14   that's who you were asking about.  So if you 
15   wouldn't mind rephrasing the question, I'd 
16   appreciate it.  
17            Q.   Yeah.  Doctor, let's just -- After 
18   having reviewed that, you informed FEMA in 1996 
19   about your findings; am I right? 
20            A.   That's correct. 
21            Q.   And they claim they informed their 
22   members about the possibilities of bronchiolitis 
23   obliterans in the flavoring industry; isn't that 
24   true? 
0243
 1                  MR. WOODSIDE:  Object.  
 2                  MR. WARD:  Join in that objection.  
 3            A.   Yes, that's correct. 
 4                  MR. WARD:  Calls for speculation. 
 5            Q.   And so if IFF and BBA were members 
 6   of that organization, they should have been 
 7   informed about the information you passed on to 
 8   FEMA; isn't that true? 
 9                  MR. WOODSIDE:  Object. 
10                  MR. WARD:  Join in that objection, 
11   calls for speculation.  
12            A.   My assumption would be that is true. 
13                  MR. MCCLAIN:  Thank you.  I have no 
14   further questions.   
15                  MR. MACE:  Doctor, reminds me of 
16   the old line, are we having fun yet.
17                   RECROSS-EXAMINATION
18   BY MR. MACE:  
19            Q.   Sir, you made the comment that 
20   acetaldehyde was not the only chemical that people 
21   were concerned with, but in your view acetaldehyde 
22   and possibly capsaicin was the causative agent for 
23   the bronchiolitis obliterans? 
24            A.   In two or three of the cases we saw, 
0244
 1   the answer is that's correct. 
 2            Q.   And the fact is that no one 
 3   thought -- start with you, you did not think that 
 4   butter flavoring was causing any of the problems 
 5   with bronchiolitis obliterans? 
 6            A.   No.  What I would say is I thought 
 7   acetaldehyde caused some of the cases.  The other 
 8   cases, it wasn't clear to me what the offending 
 9   agents were, and that's why we went ahead and made 
10   a general recommendation as to control all 
11   exposures in the plant site. 
12            Q.   And although among those hundreds of 
13   chemicals and compounds that were looked into 
14   diacetyl was referenced a few times as an 
15   irritant, you never determined that either butter 
16   flavoring or diacetyl was the cause of any BO 
17   problem, bronchiolitis obliterans problem, at 
18   TasteMaker? 
19            A.   No.  The only thing I was sure of 
20   within a reasonable degree of medical probability 
21   was the acetaldehyde, and that was based on the 
22   clinical presentations in, I think, three of these 
23   individuals.  It was rather clear-cut based on 
24   their presentation. 
0245
 1            Q.   To the best of your knowledge, no 
 2   one thought that butter flavoring or diacetyl was 
 3   the cause of any of these bronchiolitis obliterans 
 4   problems? 
 5            A.   For the other causes, you know, I 
 6   think my impression was it was an unknown, and at 
 7   that point because of the complexity of the 
 8   exposures, we went to this chemical model for 
 9   control. 
10            Q.   Which you said TasteMaker did? 
11            A.   Yes. 
12            Q.   They acted responsibly in that in 
13   your opinion? 
14            A.   As far as -- Yes, they did.  They 
15   went to a very rigorous environmental control 
16   program and continued the medical surveillance 
17   program.  I have no knowledge really of what's 
18   been going on since '98, '99, but up to that 
19   point, the answer is yes. 
20            Q.   But you first started getting 
21   involved, I think you said, it was at the end of 
22   '94, '95? 
23            A.   That's correct. 
24            Q.   Continuing through '98, '99? 
0246
 1            A.   Probably '97, '98, sometime in that 
 2   time frame. 
 3            Q.   So they bring you in, they want you 
 4   to help them figure out what's going on and what 
 5   they should do about it? 
 6            A.   Yes. 
 7            Q.   You make various recommendations 
 8   which, to your knowledge, they followed every one 
 9   of them? 
10            A.   They followed most of the 
11   recommendations.  I can't say they followed all of 
12   them, but they followed most of them. 
13            Q.   Well, sitting here, you can't think 
14   of a single one they didn't follow; can you? 
15            A.   Well, when we would sit around the 
16   table, we were focusing on this problem intensely 
17   for a six to eight-month period of time, so there 
18   were various recommendations that would float 
19   around the table, and we picked the ones that were 
20   the most feasible and most doable and where we 
21   thought we would get the best results. 
22            Q.   As a team working together trying to 
23   solve the issue? 
24            A.   That's correct. 
0247
 1            Q.   And you can't think of a specific 
 2   example of any recommendation that you made that 
 3   wasn't followed? 
 4            A.   Not at this point, no. 
 5            Q.   You used the reference of one of 
 6   these index cases, I think you called it, where a 
 7   woman had her head in a mixing tank that had 35 
 8   percent acetaldehyde.  
 9                 Could you explain to the jury a 35 
10   percent acetaldehyde, what the part per million 
11   would be on that? 
12            A.   I'd have to go back and look at that 
13   conversion.  It would be high, and it was a rather 
14   enclosed space that was being agitated. 
15            Q.   Many thousand parts per million? 
16            A.   I'm sure that's the case. 
17            Q.   Mr. McClain asked you now today 
18   sitting here at the end of 2004 do you believe 
19   that diacetyl can cause bronchiolitis obliterans, 
20   and I think you said, based on what you've seen in 
21   the literature, yes.  
22                 You've made no determination at what 
23   concentration or under what circumstances, 
24   correct? 
0248
 1            A.   No. 
 2            Q.   And you're not backing off of your 
 3   earlier testimony that it's very important in 
 4   terms of determining whether a compound or a 
 5   substance will cause any injury what the 
 6   concentration was and under what circumstances was 
 7   it being used? 
 8            A.   It's inherent, toxicity plus 
 9   concentration, plus individual susceptibility. 
10            Q.   Mr. McClain asked you some follow-up 
11   about your concern that other issues may be 
12   occurring at flavor manufacturing facilities.  
13   Your concern was that it might be occurring at 
14   other flavor manufacturing facilities.  
15                 You had no concern that it was 
16   occurring at any microwave popcorn facility? 
17                  MR. MCCLAIN:  Object to the form of 
18   the question.  It's been asked and answered 
19   extensively. 
20            Q.   Correct? 
21            A.   The answer is yes to that.  What was 
22   on my radar screen was, is this being duplicated 
23   at other flavor manufacturing facilities --
24            Q.   I mean, to be clear -- 
0249
 1            A.   -- and that was the next step. 
 2            Q.   It never entered your mind as a 
 3   possibility that it could be a problem at a 
 4   microwave popcorn facility back at the time? 
 5            A.   No. 
 6            Q.   No, it did not, correct? 
 7            A.   No, it did not. 
 8            Q.   And to your knowledge, it never 
 9   entered the mind of any of these people at 
10   TasteMakers? 
11                  MR. MCCLAIN:  Object to the form of 
12   the question.  How would he know that?  
13            Q.   To your knowledge.  
14            A.   No one ever mentioned that to us, 
15   that's correct. 
16            Q.   Several times Mr. McClain was asking 
17   you questions, and you said, well, that would be 
18   my assumption.  You use that phrase when you don't 
19   have firsthand personal knowledge of the issue? 
20                  MR. MCCLAIN:  Object to the form of 
21   the question.  
22            A.   It's my assumption based on my notes 
23   looking back five years to six years ago. 
24            Q.   For example, Mr. McClain was asking 
0250
 1   you to classify whether TasteMaker would have been 
 2   classified under the regulations as a chemical 
 3   manufacturer under certain OSHA regulations.  
 4                 You're not a lawyer, are you, sir? 
 5            A.   No, I'm not. 
 6            Q.   Do you feel that you're qualified to 
 7   make such a determination? 
 8            A.   Well, when I -- My recommendations 
 9   were that they should treat this company as a 
10   chemical company; that means that they need to 
11   look at their exposures the way you would look at 
12   exposures within a chemical manufacturing 
13   facility.  You look at transdermalexposures, 
14   interrelational exposures, not necessarily 
15   ingestion exposures. 
16            Q.   And I understand that and I 
17   understand why somebody trying to be as cautious 
18   as they can may do things.  But in terms of there 
19   being a legal requirement, Mr. McClain was asking 
20   you about a legal requirement under OSHA that 
21   TasteMaker do something; you made no determination 
22   on that as a matter of law? 
23            A.   No, I did not make that 
24   determination. 
0251
 1            Q.   You mentioned the fact that diacetyl 
 2   was on the list among a number of other compounds 
 3   of things that people had some sensitivity to and 
 4   something that should be looked at in more detail, 
 5   correct? 
 6            A.   Yes. 
 7            Q.   And isn't it a fact that it was 
 8   looked at along with these other compounds, and 
 9   that diacetyl was never linked to bronchiolitis 
10   obliterans during your work with TasteMaker? 
11                  MR. MCCLAIN:  Object to the form of 
12   the question.  
13            A.   Again, we linked -- I linked 
14   acetaldehyde to the outcomes in three individuals, 
15   I think.  The other two individuals I couldn't 
16   form any definite link as to what the etiologic 
17   agents would have been. 
18            Q.   And in terms of this giving some 
19   type of notice to a customer of TasteMaker, if you 
20   thought that was a concern, you would have 
21   suggested that to TasteMaker? 
22                  MR. MCCLAIN:  Object to the form of 
23   the question.  
24            A.   In relationship to acetaldehyde, I 
0252
 1   think that question came up or it came up 
 2   indirectly in that the concentrations they were 
 3   using in the manufacturing process were high and 
 4   the concentrations that were used in end user 
 5   products were low, and -- but that's probably as 
 6   far as we took it. 
 7            Q.   But my question to you was, if you 
 8   felt -- if you had felt back at the time in the 
 9   mid '90's, that it was important that Givaudan 
10   notify its customers, you would have raised that? 
11            A.   Yes, that's correct. 
12            Q.   Mr. McClain got back into this topic 
13   about the ATS presentation.  He tried to get you 
14   to buy into the phrase that Mr. King at Givaudan 
15   objected to, and you said, well, he asked about 
16   it, correct? 
17                  MR. MCCLAIN:  Object to the form of 
18   the question.  
19            A.   Can you repeat the question, and 
20   I'll answer.  
21            Q.   Yeah.  Mr. McClain was asking you 
22   about these ATS presentations and the fact that 
23   Givaudan knew about that before you made the 
24   presentation.  And you said that it was asked 
0253
 1   about, but after it was asked about, you were told 
 2   to go ahead and give the presentation? 
 3            A.   That's correct. 
 4            Q.   And in terms of the comments that 
 5   you made to Givaudan, you told them they had 
 6   nothing to hide? 
 7            A.   That's correct. 
 8            Q.   You told them they were proactive 
 9   and had a good story to tell? 
10            A.   In relationship to how they handled 
11   their manufacturing facility, yes, that's correct. 
12            Q.   With respect to any documents as to 
13   privilege being asserted, it's only one document, 
14   correct? 
15            A.   Yes, as far as I'm aware.  That's 
16   correct, it's one document. 
17            Q.   You made a comment that you don't 
18   believe that bronchiolitis obliterans is caused by 
19   salt.  Have you done any investigation into that? 
20            A.   The only way it could be caused by 
21   salt is if there was an overwhelming inhalational 
22   exposure that overwhelmed the small airways, and 
23   that would be a very unusual circumstance. 
24            Q.   Were you aware that they used 
0254
 1   pulverized salt in these microwave popcorn plants? 
 2            A.   Yes. 
 3            Q.   And being pulverized extremely fine, 
 4   it can get deeper into the lungs, correct? 
 5            A.   That's correct. 
 6            Q.   And you do note on the first page of 
 7   your report on Mr. Campbell that he had acute 
 8   symptoms after a salt spill at work, correct? 
 9            A.   Yes. 
10            Q.   But other than what you've just 
11   mentioned, you've made no investigation or 
12   research or testing into whether or not this 
13   pulverized salt can cause bronchiolitis 
14   obliterans? 
15            A.   It would be -- Salt is a physiologic 
16   make-up of the human system.  It would be very 
17   unlikely that it would contain the toxicity that 
18   causes disease state, unless there was an 
19   overwhelming exposure, so like what we call 
20   maximum tolerated dose in a rat study. 
21            Q.   And in terms of investigating how 
22   large this salt spill was at the ConAgra plant or 
23   other instances when there were hazes of salt 
24   clouds around, you made no investigation into 
0255
 1   that? 
 2            A.   No, that's correct. 
 3                  MR. MACE:  Nothing further at this 
 4   time.  
 5                  MR. WOODSIDE:  I have one question. 
 6                  MR. MACE:  Wait, I guess there was 
 7   one, I'm sorry.  
 8   BY MR. MACE:  
 9            Q.   Mr. McClain asked you about this 
10   document, I think it was 39 or 40, about Padducah, 
11   Kentucky.  
12            A.   Okay.  
13            Q.   Your handwritten notes at the end 
14   where you talk about somebody telling you there 
15   were five persons on a lung transplant list or 
16   something.  
17            A.   Yes. 
18            Q.   Your information was that was all at 
19   one plant in Jasper, Missouri, correct? 
20            A.   I don't know.  I assumed it 
21   was -- My assumption is it's one plant, but I 
22   can't be absolutely sure about that. 
23            Q.   And in terms of the other plant in 
24   Missouri -- 
0256
 1                  MR. WOODSIDE:  Object, speculative. 
 2            Q.   In terms of the other plant in 
 3   Missouri, you made no investigation into what the 
 4   conditions are there? 
 5            A.   I didn't make any investigation into 
 6   any of these plant sites. 
 7                  MR. MACE:  Thank you, sir.  Nothing 
 8   further at this time. 
 9                  RECROSS-EXAMINATION  
10   BY MR. WOODSIDE:  
11            Q.   Irrespective of what in your opinion 
12   FEMA should have told to Bush Boake Allen and 
13   International Flavors & Fragrances, you don't have 
14   any personal knowledge as to what FEMA did or did 
15   not say to those companies or pass on to those 
16   companies about the results of your work, correct? 
17            A.   That's correct.  
18                  MR. WOODSIDE:  Thank you.  I have 
19   no further questions.  I do have one thing I want 
20   to put on the record.  Ken, are you done? 
21               FURTHER DIRECT EXAMINATION
22   bY MR. MCCLAIN:  
23            Q.   Just so that we're clear, take on 
24   Mr. Campbell's report again.  He was having 
0257
 1   symptoms before this salt spill; wasn't he? 
 2            A.   Yes, he was. 
 3            Q.   And following the salt spill, his -- 
 4   that acute exposure, his symptoms from the salt 
 5   spill resolved in about an hour; is that what it 
 6   says? 
 7                  MR. MACE:  Objection. 
 8            A.   That's correct. 
 9            Q.   And so, Doctor, is that the kind of 
10   exposure that you're talking about that even 
11   theoretically could be possible to cause some harm 
12   from salt? 
13            A.   I think it's beyond the realm of 
14   plausibility that salt would have biologically 
15   caused this disease.   
16            Q.   And, Doctor, you mentioned the fact 
17   that it is not biologically plausible, why? 
18            A.   Again, salt is a normal component of 
19   our cell physiology, and it would take an 
20   overwhelming exposure, essentially a dust overload 
21   phenomenon, in the lower airways to cause this 
22   particular disease state, and that gentleman would 
23   have been acutely ill for at least 34 or 48 hours. 
24            Q.   Essentially enough to suffocate you? 
0258
 1            A.   Correct. 
 2            Q.   And so there's no evidence of 
 3   anybody suffocating from salt in this plant; is 
 4   that correct? 
 5                  MR. WOODSIDE:  Object, leading.  
 6            A.   That's correct. 
 7                  MR. MCCLAIN:  All right, thank you, 
 8   Doctor.  No further questions. 
 9               FURTHER CROSS-EXAMINATION  
10   BY MR. MACE:  
11            Q.   With respect to that issue, Doctor, 
12   Mr. Campbell's symptoms were improving prior to 
13   the salt spill? 
14            A.   That's correct.  His exercise 
15   tolerance was increasing, but had not returned to 
16   his preexisting baseline status of 2000. 
17            Q.   And in terms of these acute symptoms 
18   resolving, there can be a difference between acute 
19   symptoms and chronic symptoms, correct? 
20            A.   Yes. 
21                  MR. MACE:  Thank you.  Nothing 
22   further at this time.  
23                  MR. WOODSIDE:  I wish to put two 
24   things on the record.  The first is there 
0259
 1   apparently has been some issue with regard to the 
 2   redaction of the documents, and just so the record 
 3   is clear, with regard to IFF and BBA, the 
 4   documents that I will receive -- that I received 
 5   were previously redacted and were not redacted by 
 6   me, my clients or anybody in their employ.  I'm 
 7   not suggesting that any redaction was or was not 
 8   appropriate or inappropriate.  I'm just stating 
 9   that we had nothing to do with it.  
10                 The second is, although Counsel 
11   identified themselves for the record when we 
12   started, I do not believe that Dr. David Eagleman, 
13   who has been in attendance and was expert for 
14   Plaintiffs in these cases, identified himself, and 
15   I would simply like to Dr. Eagleman to have 
16   opportunity to identify himself, which he 
17   apparently does not want to do.  
18                  THE VIDEOGRAPHER:  I'd like to ask 
19   you, have you the right to review this video and 
20   you also have the right to read the transcript or 
21   you may waive both.  
22                  THE WITNESS:  I waive. 
23                  THE VIDEOGRAPHER:  This concludes 
24   today's video.  The time is now 7 minutes after 5.  
0260
 1   One second and we're going off the record.  We're 
 2   off. 
 3                   (SIGNATURE WAIVED.)
 4                 JAMES EDWARD LOCKE, MD
 5                         -  -  -
 6            DEPOSITION CONCLUDED AT 5:07 P.M.
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0261
 1                  C E R T I F I C A T E
 2   STATE   OF   OHIO    :
 3                        :  SS
 4   COUNTY  OF  HAMILTON :
 5        I, LISA CONLEY, RMR, CRR, CCP, the 
 6   undersigned, a duly qualified and commissioned 
 7   notary public within and for the State of Ohio, do 
 8   hereby certify that before the giving of his 
 9   aforesaid deposition, the said JAMES EDWARD LOCKE, 
10   MD, was by me first duly sworn to tell the truth, 
11   the whole truth and nothing but the truth; that 
12   the foregoing is the deposition given at said time 
13   and place by the said JAMES EDWARD LOCKE, MD; that 
14   said deposition was taken in all respects pursuant 
15   to Notice to Take Deposition; that said deposition 
16   was taken by audio/visual means by the 
17   videographer and by me in stenotypy and 
18   transcribed by computer-aided transcription under 
19   my supervision; that the submission of the 
20   transcribed deposition to the witness for his 
21   examination and signature was expressly waived; 
22   that I am neither a relative of nor attorney for 
23   any of the parties to this cause, nor relative of 
24   nor employee for any of their counsel, and have no 
0262
 1   interest whatever in the result of the action.    
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0263
 1            IN WITNESS WHEREOF, I hereunto set my 
 2   hand and official seal of office at Cincinnati, 
 3   Ohio, this           day of                    , 
 4   2004. 
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 8   MY COMMISSION EXPIRES: LISA CONLEY, RMR, CRR, CCP
 9   JULY 28, 2009.         NOTARY PUBLIC-STATE OF OHIO 
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