0001
                 COURT OF COMMON PLEAS
 2                 HAMILTON COUNTY, OHIO
 3   
 4    TIMOTHY ARTHUR, et   :
 5    al.,                 :
 6           Plaintiffs,   :  CASE NO. A0307157
 7    vs.                  :
 8    INTERNATIONAL        :
 9    FLAVORS &            :
10    FRAGRANCES, INC.,    :
11    et al.,              :
12           Defendants.   :
13           Videotaped deposition of ROY McKAY,
14   Ph.D., a witness herein, taken by the plaintiffs
15   as upon cross-examination, pursuant to the Ohio
16   Rules of Civil Procedure and pursuant to
17   agreement by counsel as to the time and place
18   and stipulations hereinafter set forth, at the
19   offices of Roy McKay, Ph.D., Health Professions
20   Building, Room 250, University of Cincinnati,
21   Cincinnati, Ohio, at 9:00 a.m. on Thursday, the
22   13th day of July, 2006, before Valerie Jones
23   Conn, a Registered Professional Reporter and
24   Notary Public within and for the State of Ohio.
0002
 1   APPEARANCES
 2   
     On behalf of Plaintiff:
 3   
              STEPHEN CRICK, ESQ.
 4                of
              Humphrey Farrington & McClain
 5            221 W. Lexington
              Suite 400
 6            Independence, Missouri  64051
 7   On behalf of Defendant:
 8            J. PHILIP CALABRESE, ESQ.
                  of
 9            Squire Sanders & Dempsey
              4900 Key Tower
10            127 Public Square
              Cleveland, Ohio  44114
11   
     On behalf of Defendant:
12   
              DAVID BRITTINGHAM, ESQ.
13                of
              Dinsmore & Shohl
14            1900 Chemed Center
              255 E. Fifth Street
15            Cincinnati, Ohio  45202
16   On behalf of Witness:
17            KATHERINE RUWE, ESQ.
                  of
18            Taft, Stettinius & Hollister
              425 Walnut Street, Suite 1800
19            Cincinnati, Ohio  45202
20            FRED HAMILTON, ESQ.
                  of
21            University of Cincinnati
              P.O. Box 670663
22            Cincinnati, Ohio  45267
23   ALSO PRESENT:  Rick Grubb, videographer
24   
0003
 1               S T I P U L A T I O N S
 2     It is stipulated by counsel for the respective
 3   parties that the deposition of ROY McKAY, Ph.D.,
 4   a witness herein, may be taken at this time by
 5   the plaintiffs as upon cross-examination and
 6   pursuant to the Ohio Rules of Civil Procedure
 7   and notice to take deposition, all other legal
 8   formalities being waived by agreement; that the
 9   deposition may be taken in stenotype by the
10   Notary Public Reporter and transcribed by her
11   out of the presence of the witness; that the
12   transcribed deposition was made available to the
13   witness for examination and signature and that
14   signature may be affixed out of the presence of
15   the Notary Public-Court Reporter.
16   
17   
18   
19   
20   
21   
22   
23   
24   
0004
 1                       INDEX
 2   
 3   WITNESS        DIRECT CROSS REDIRECT RECROSS
 4   
      ROY McKAY,
 5    Ph.D.
      BY MR. CRICK:           5
 6    BY MR.                122
      CALABRESE
 7    BY MR. CRICK          178
      BY MR.                182
 8    CALABRESE
 9   
     EXHIBIT        IDENTIFIED                PAGE
10   
      Exhibit 1                                 6
11    Exhibit 2                                 8
      Exhibit 3                                16
12    Exhibit 4                                23
      Exhibit 5                                30
13    Exhibit 6                                49
      Exhibit 7                                51
14    Exhibits 8-22                            73
      Exhibits 23-26                           93
15    Exhibit 27                               94
      Exhibit 28                               95
16    Exhibit 29                               96
      Exhibit 30                               98
17    Exhibit 31                               99
      Exhibit 32                              108
18   
19   
20   
21   
22   
23   
24   
0005
 1              MR. GRUBB:  The time is 9:14 and
 2   17 seconds, the date is 7-12-06.  If you
 3   would please swear the witness, Ms. Conn.
 4                 ROY McKAY, Ph.D.,
 5   a witness herein, of lawful age, having been
 6   first duly sworn, as hereinafter certified,
 7   was examined and testified as follows:
 8              MR. GRUBB:  We're on the record,
 9   Mr. Crick.
10                 CROSS-EXAMINATION
11   BY MR. CRICK:
12          Q.    Good morning, sir.
13          A.    Good morning.
14          Q.    Would you state your name and
15   your address?
16          A.    Excuse me.  Roy Thomas McKay.
17   And I live at 430 Millrace Drive,
18   M-I-L-L-R-A-C-E, it's in Cold Spring,
19   Kentucky, 41076.
20          Q.    Is it Dr. McKay?
21          A.    You can go by Dr. McKay is fine.
22          Q.    Where do you work at, Dr. McKay?
23          A.    Here at the University of
24   Cincinnati.
0006
 1          Q.    Let me hand you Exhibit number
 2   one.           (Exhibit 1 was marked for
 3   identification.)
 4          Q.  This is a -- is this an old copy
 5   of your Curriculum Vitae, your resume?
 6          A.    Yes, it is.
 7          Q.    And I got this from a company
 8   called Givaudan, formerly Tastemaker.  Are
 9   you familiar with that company?
10          A.    Yes, I am.
11          Q.    Just hang on to that, if you
12   would.  Did you do some work for Tastemaker
13   back in the '90s?
14          A.    Yes, I did.
15          Q.    Now this resume would be from
16   back in around '95.  Is this an up to date
17   resume for you?
18          A.    No, it's not.
19          Q.    All right.  We'll talk about
20   that a little bit.  You have a -- a Bachelor
21   of Science degree, sir?
22          A.    Yes, I do.
23          Q.    And what's the degree in?
24          A.    Chemistry.
0007
 1          Q.    You got that in 1976?
 2          A.    Yes.
 3          Q.    And you have a Ph.D.?
 4          A.    Yes.
 5          Q.    And what's your Ph.D. in?
 6          A.    In toxicology.
 7          Q.    Are you an industrial hygienist?
 8          A.    I practice a fair amount in the
 9   field of industrial hygiene but don't have a
10   degree in industrial hygiene.
11          Q.    You're not a certified
12   industrial hygienist then?
13          A.    That's correct.
14          Q.    Okay.  Are you the laboratory
15   director at the University of Cincinnati, or
16   have you held that position?
17          A.    I'm director of a program called
18   Occupational Pulmonary Services.
19          Q.    And that's at the University?
20          A.    Yes, it is.
21          Q.    And what is the Department of
22   Occupational Pulmonary Services?
23          A.    Well, it's a -- it's a module
24   within a university run health foundation
0008
 1   which is a private practice group affiliated
 2   with the University of Cincinnati department
 3   of -- Department for Environmental Health.
 4          Q.    Are you the Roy McKay that
 5   authored an abstract with James Lockey called
 6   Bronchiolitis Obliterans in the Food
 7   Flavoring Manufacturing Industry?
 8          A.    Yes.
 9          Q.    Let me show you Exhibit number
10   2.
11              (Exhibit 2 was marked for
12   identification.)
13          Q.  Is this a copy of that abstract
14   that was submitted to the American Thoracic
15   Society in 2002?
16          A.    Yes, it is.
17          Q.    Now, this abstract,
18   Bronchiolitis Obliterans in the Food
19   Flavoring Manufacturing Industry, this was
20   based upon the work that you and Dr. Lockey
21   did at the Tastemaker flavorings plant in
22   Cincinnati; is that right?
23          A.    It was based on work conducted
24   there as well as associated work with
0009
 1   patients coming to our clinic.
 2          Q.    This references an index case of
 3   BO, that's bronchiolitis obliterans, was
 4   identified in a worker involved in the food
 5   flavoring manufacturing industry.  Was that
 6   index case from the Tastemaker plant?
 7          A.    Yes.
 8          Q.    And it says, a subsequent survey
 9   of the work force identified an additional
10   four workers with clinical findings
11   consistent with BO.  Those four workers were
12   also from Tastemaker; is that right?
13          A.    It's my recollection, yes.
14          Q.    Now at the bottom of your
15   abstract you say, ingredients used in the
16   food flavoring manufacturing industry can
17   number in the thousands, and the vast
18   majority have not been studied for
19   inhalational toxicity.  Is that what you
20   said?
21          A.    Yes.
22          Q.    So you began your work at
23   Tastemaker around 1995; is that right?
24          A.    I don't recall the exact date,
0010
 1   but 1995 is close to that time, yes.
 2          Q.    And we'll go through some of the
 3   details in the documents in just a little
 4   bit.  Did you come to work at Tastemaker in
 5   the '90s because you had learned, through the
 6   company, that some current and former
 7   employees of Tastemaker had been diagnosed
 8   with lung disease?
 9          A.    I don't recall those specific
10   words would apply.  I was initially contacted
11   by a physician named Stu Brooks, who used to
12   be the divisional director who had
13   subsequently moved to Florida, and he had
14   been contacted about a potential lung disease
15   problem at Tastemaker and then he requested
16   my assistance since I was local, nearby.
17          Q.    Just a second.  Did you come to
18   learn that there had been one or more
19   employees at Tastemaker that had been
20   diagnosed or were concerned that there was a
21   diagnosis of bronchiolitis obliterans?
22          A.    My recollection at the time, I
23   don't think bronchiolitis obliterans was ever
24   identified or even suspected at the time we
0011
 1   were initially contacted.  I think at the
 2   time the concern was there may be, for lack
 3   of a better term, possible occupational
 4   asthma or Reactive Airways Dysfunction
 5   Syndrome, RADS.  I don't believe
 6   bronchiolitis obliterans was identified at
 7   that time.
 8          Q.    So Tastemaker didn't initially
 9   tell you, in '95, that bronchiolitis
10   obliterans had been suspected in injuries
11   among people at the plant?
12              MR. CALABRESE:  Object to form.
13   Mischaracterizes the testimony.
14          A.    I don't think that anyone knew
15   there was any bronchiolitis obliterans there
16   at the time.
17          Q.    Okay.  So the answer to my
18   question is no one at Tastemaker actually
19   said anything to you about bronchiolitis
20   obliterans when you were brought into the
21   company?
22              MR. CALABRESE:  Same objections.
23          A.    That's my recollection.
24          Q.    Now subsequently to your
0012
 1   becoming involved with Tastemaker did you
 2   learn that there were some employees that did
 3   have symptoms consistent with bronchiolitis
 4   obliterans?
 5          A.    Yes.
 6          Q.    You have some appreciation as a
 7   toxicologist as to what exactly is
 8   bronchiolitis obliterans?
 9              MR. CALABRESE:  Object to form.
10          A.    Yes.
11          Q.    What is that disease, sir?
12          A.    It's a pulmonary lung disorder
13   in which the airway lining becomes damaged
14   and creates a situation where you get
15   fibrosis of the airways with eventual
16   blockage of the airways, which will limit air
17   flow moving in and out of the lung.
18          Q.    Do you agree that the clinical
19   presentation for constrictive bronchiolitis
20   obliterans is non-specific and often
21   indolent?
22          A.    I'm sorry, what was the last
23   word?
24          Q.    Well, actually I'm reading from
0013
 1   a document here and so maybe I'm not reading
 2   the right word.  Do you agree that the
 3   clinical presentation for constrictive
 4   bronchiolitis obliterans is non-specific?
 5          A.    Yes.
 6          Q.    Do you agree that constrictive
 7   bronchiolitis obliterans is associated with
 8   dyspnea, malaise, fatigue, non-productive
 9   cough and occasional wheezing?
10          A.    Yes.
11          Q.    The presentation for
12   bronchiolitis obliterans might vary with the
13   sensitivity of the individual.  Do you agree
14   with that?
15          A.    Yes.
16          Q.    Do you agree that the patient
17   might initially become better?
18          A.    That depends -- initially from
19   what?
20          Q.    Okay.
21          A.    After -- I'm not sure what that
22   means.
23          Q.    All right.  Are you aware of the
24   fact that the National Institute for
0014
 1   Occupational Safety and Health has published
 2   an article about bronchiolitis obliterans in
 3   the microwave popcorn industry?
 4          A.    Yes.
 5          Q.    You've read that?
 6          A.    I have skimmed through it.
 7          Q.    It was an article that was
 8   published in the New England Journal of
 9   Medicine?
10          A.    I haven't read the New England
11   Journal of Medicine article.
12          Q.    Did you read the NIOSH
13   publication that they put out internally
14   called the NIOSH Alert?
15          A.    That's what I was referring to.
16          Q.    Okay.  Have you read any of the
17   animal studies that were published by Ann
18   Hubbs on her work with butter flavoring and
19   -- and animals?
20              MR. CALABRESE:  I'm going to
21   object to this line of questioning.  This
22   witness is not here as an expert, he's here
23   as a fact witness, but subject to that.
24          A.    I've read a variety of articles
0015
 1   on -- regarding animal studies.  Don't recall
 2   who the authors were or when they were
 3   published.
 4          Q.    You recall that NIOSH, through
 5   its NIOSH Alert, indicated that it had found
 6   bronchiolitis obliterans in the flavoring
 7   workplaces also?
 8              MR. BRITTINGHAM:  Object to the
 9   form.
10          A.    Yes.
11          Q.    In addition to your work at
12   Tastemaker is it true that you've seen one or
13   more people who have worked at microwave
14   popcorn plants, as well?
15          A.    I don't -- I was not aware of or
16   do not know if any of those individuals had
17   anything to do with microwave popcorn.
18          Q.    Your work at Tastemaker, that --
19   did that primarily have to do with providing
20   pulmonary function tests to employees at the
21   company?
22          A.    That was one of the primary
23   responsibilities, yes.
24          Q.    Let me show you Exhibit number
0016
 1   3.
 2              (Exhibit 3 was marked for
 3   identification.)
 4          Q.  Is Exhibit number 3 a pulmonary
 5   function test report from the University of
 6   Cincinnati Medical Center, Center for
 7   Occupational Health, for a gentleman by the
 8   name of Keith Campbell?
 9          A.    Yes, it is.
10          Q.    What were the results of this
11   pulmonary function test?  Can you interpret
12   this for me, please?
13          A.    The -- the actual numbers are
14   hard to read, but he has a reduction in his
15   forced vital capacity, which is -- represents
16   the volume of air you can blow out.  In
17   addition to that, the speed at which the air
18   empties out of the lung, the FEV1, is
19   severely, severe -- very severely reduced.
20          Q.    The FEV1, what is that?
21          A.    FEV1 is the forced expiratory
22   volume measured at one second and --
23          Q.    And for people who don't know
24   what that means can you explain that?
0017
 1          A.    It represents the speed --
 2   represents the volume of air that comes out
 3   during a pulmonary function testing maneuver,
 4   and it's an indication of the speed at which
 5   the air can move out of the lungs through the
 6   airways, and it is often used to identify
 7   airways diseases.
 8          Q.    So if someone comes to your lab
 9   at the University of Cincinnati and one of
10   the breathing tests that they perform is they
11   try to breathe out as hard and fast as they
12   can you measure how much air they can get out
13   in one second?
14          A.    Correct.
15          Q.    And that's what the FEV1 is,
16   forced expiratory volume in one second?
17          A.    Correct.
18          Q.    And the FVC, is that how much
19   air an individual can get out in one breath?
20          A.    Correct.
21          Q.    And you said that this
22   particular test for Keith Campbell showed
23   that he had severe problems?
24          A.    He had a revere reduction in
0018
 1   FEV1 or very -- very severe reduction in
 2   FEV1.
 3          Q.    Were you aware that Mr. Campbell
 4   had been diagnosed by Dr. Lockey as having
 5   bronchiolitis obliterans?
 6          A.    I don't recall the names of the
 7   individuals.  Perhaps may have recognized
 8   them -- wouldn't recognize them today but
 9   don't know if this is one of them or not.
10          Q.    I want to talk a few minutes
11   about your background again.  You said you
12   have a Ph.D. in environmental and
13   occupational toxicology; is that right?
14          A.    Yes.
15          Q.    And you got that at the
16   University of Cincinnati?
17          A.    Yes.
18          Q.    What, exactly, is environmental
19   and occupational toxicology?
20          A.    It's the study of chemicals on
21   the body, poisons on the body, and in my case
22   it was specifically directed towards
23   chemicals that a person may have obtained
24   from exposure either at their workplace or in
0019
 1   the environment.
 2          Q.    Is that what's known as
 3   pulmonary toxicology?
 4          A.    Well, pulmonary toxicology is a
 5   narrower field, which is what I practice in,
 6   and that has to do specifically with agents
 7   which are airborne which may then be inhaled,
 8   and then once they're inhaled may affect the
 9   lungs or other parts of the body, depending
10   upon the toxicity of the chemical.
11          Q.    How do you do that type of work?
12   How do you determine if a chemical is toxic
13   to the body, toxic to the pulmonary system?
14          A.    Literature review may be
15   involved and actual experiments may be
16   involved in human studies, epidemiologic
17   studies, case studies, various means.
18          Q.    When you said experiments what
19   types of experiments are typically performed
20   doing this type of pulmonary toxicology work?
21          A.    They may involve animal studies
22   or non-animal laboratory-type studies.
23          Q.    And is that something that you
24   do at the University of Cincinnati?
0020
 1          A.    I don't do animal studies
 2   anymore.  I've done animal studies as part of
 3   my graduate work.
 4          Q.    Okay.  And does the University
 5   of Cincinnati do animal studies at the
 6   University?
 7          A.    Yes.
 8          Q.    Is there an individual at the
 9   University who's in charge of that
10   department?
11          A.    At the moment there are many
12   individuals at the University of Cincinnati
13   do animal studies that don't fall within one
14   single department and some of those
15   individuals may be practicing in some aspect
16   of toxicology that are not within our
17   department.
18          Q.    Okay.  But they do perform
19   animal toxicology studies right here at the
20   University?
21          A.    Yes.
22          Q.    And you say you've done some
23   animal studies before, yourself?
24          A.    Yes.
0021
 1          Q.    Can you describe some of the
 2   animal studies you've been involved with?
 3          A.    I was involved in looking at
 4   mechanisms of asthma and airway reactivity
 5   and something called Reactive Airways
 6   Dysfunction Syndrome.  So my studies were,
 7   excuse me, primarily involved in inhalation
 8   exposure exposing animals by air, in the air,
 9   to materials and then evaluating what types
10   of effects may have occurred as a result of
11   inhaling those chemicals.
12          Q.    You said you've done some work
13   regarding asthma.  Is this work that you did
14   with Dr. Brooks?
15          A.    Yes.
16          Q.    And did you actually publish
17   something on that study that you did with Dr.
18   Brooks?
19          A.    Yes.
20          Q.    Okay.  And was that work that
21   you did here at the University of Cincinnati?
22          A.    Yes.
23          Q.    When you did your work for
24   Tastemaker did you do that type of work for
0022
 1   Tastemaker?
 2          A.    There were no animal studies
 3   done for Tastemaker.
 4          Q.    Were there any experiments of
 5   any type that you performed during your work
 6   for Tastemaker?
 7          A.    None.
 8          Q.    You indicated that you came over
 9   to do this project at Tastemaker.  Was this
10   at the request of Dr. Brooks?
11          A.    Initially, yes.
12          Q.    So Dr. Brooks contacted you and
13   what did he ask you to do?
14          A.    Said he needed help.  He -- my
15   recollection was he had contacted me
16   initially, described having a facility in the
17   Cincinnati area subsequently identified to be
18   Tastemaker, thought he had a possible asthma
19   case, reactive airways dysfunction case, and
20   wanted to see if I would be interested in
21   being able to help him in terms of
22   identifying what causative agents may be --
23   is there something there and what causative
24   agents may be responsible.
0023
 1          Q.    Were you aware that Dr. Brooks
 2   was subsequently fired from his work at
 3   Tastemaker?
 4              MR. CALABRESE:  Objection.
 5          A.    I know that -- I know that his
 6   services were no longer requested.
 7          Q.    Okay.  Let me show you Exhibit
 8   number 4.
 9              (Exhibit 4 was marked for
10   identification.)
11          Q.    Is Exhibit number 4 a -- a fax
12   and memo that you prepared to Janice Dees,
13   the medical services coordinator for
14   Tastemaker, from August 3, 1995?
15          A.    Yes, it is.
16          Q.    Do you remember Janice Dees?
17          A.    Yes, I do.
18          Q.    She left the company during the
19   course of time that you were doing your work
20   for Tastemaker.  Do you recall that?
21          A.    Yes.
22          Q.    Do you recall the circumstances
23   of Janice Dees leaving Tastemaker?
24          A.    I don't know all the
0024
 1   circumstances but it was certainly a very
 2   stressful environment.
 3          Q.    How so?
 4          A.    It was a challenging
 5   environment.  We had workers who were
 6   developing illness at the time.  She was
 7   highly interested in trying to identify --
 8   identify new cases, prevent new cases and
 9   identify past cases to determine what was
10   going on there.
11          Q.    Was she fired?
12          A.    I know that she left Tastemaker.
13   I can't specifically say she was fired or she
14   quit.  I -- so the circumstances of her
15   leaving, I'm not -- I don't know.  I don't --
16   I don't recall.
17          Q.    Now this indicates that this is
18   your proposal for work that you would do over
19   the next 12 months.  Is that what Exhibit 4
20   is?
21          A.    Yes.
22          Q.    You're proposing that you would
23   assist in the medical surveillance in
24   Tastemaker with methods for automating trend
0025
 1   graphs for pulmonary data collected by the
 2   University.  What does that mean?
 3          A.    Well, may I take -- just take a
 4   moment to read through this?
 5          Q.    Absolutely.  The whole thing.
 6          A.    Okay.  I forgot what your
 7   question is but now I'm familiar with the
 8   document.
 9          Q.    Okay.  We'll start again.  I'm
10   looking at your second page of Exhibit 4
11   called time estimate for Roy McKay, Ph.D.,
12   and you listed some proposed or estimated
13   hours for some specific tasks, and the first
14   one says, assisting medical surveillance in
15   Tastemaker with methods for automating trend
16   graphs for pulmonary data collected by UC.
17   And could you just explain to us, what does
18   that mean?
19          A.    Yeah.  The role would be to
20   conduct serial lung function testing studies,
21   serial lung function tests, evaluating them
22   to identify if there is change in lung
23   function that may be excessive because some
24   people may have developing lung problems that
0026
 1   are not recognized by a snapshot single lung
 2   function test.  In -- in other words, take a
 3   classic smoker.  Initially when you smoke a
 4   person's younger, don't -- doesn't have too
 5   many pack years, they may still have normal
 6   lung function and so you could -- could get
 7   the impression that everything's fine.  But
 8   if you look at past lung function tests and
 9   collect ones in the future you may see the
10   lung function declining at an accelerated
11   rate, which would identify susceptible
12   individuals that would otherwise be
13   unrecognized.
14          Q.    And you did perform that task
15   for Tastemaker.  You performed a series of
16   pulmonary function tests for the Tastemaker
17   employees?
18          A.    It was conducted for a period of
19   time, yes.
20          Q.    Do you recall approximately what
21   the period of time was?  About three years?
22          A.    I don't recall the exact period
23   of time.  My recollection was I thought it
24   was about one and a half to two and a half
0027
 1   years.
 2          Q.    The second estimate on your
 3   sheet indicates developing detailed Pulmonary
 4   Function procedures manual for non-Cincinnati
 5   sites.  What does that mean?
 6          A.    Well, Tastemaker had some other
 7   locations besides Cincinnati, and the idea
 8   here would be to provide specific operating
 9   instructions for these non-Cincinnati sites
10   so they could conduct lung function tests in
11   a manner similar to how we were doing it here
12   in Cincinnati for the purposes of potentially
13   identifying changes in lung function as we
14   were doing here.
15          Q.    And pulmonary function tests
16   were performed at other Tastemaker sites; is
17   that right?
18          A.    My -- I believe that they were.
19          Q.    The next item on your time
20   estimate says, specific training for
21   conducting pulmonary function tests for
22   trending purposes.  What does that mean?
23          A.    I don't recall exactly.  I
24   don't -- I don't recall.  It may have been to
0028
 1   assist others in identifying what may be
 2   potentially significant change in lung
 3   function.
 4          Q.    Now is this approximately the
 5   time period when you started doing work for
 6   Tastemaker, maybe a little before?
 7          A.    That's approximately correct,
 8   yes.
 9          Q.    Were you aware that in 1992 the
10   coroner's office of Montgomery County had
11   contacted Tastemaker about the death of one
12   of its employees, Janice Minick --
13              MR. CALABRESE:  Objection.
14          Q.    -- and a possible diagnosis of
15   bronchiolitis obliterans?
16              MR. CALABRESE:  Objection.
17          A.    I was not aware that the
18   coroner's office had ever contacted
19   Tastemaker.
20          Q.    Were you aware that, also in
21   1992, Tastemaker was advised that another one
22   of its employees, Joey Wallce, had a lung
23   disease that might be bronchiolitis
24   obliterans?
0029
 1          A.    Could you repeat the first part
 2   of that?
 3          Q.    Were you made aware, when you
 4   came to the plant in '95, that as early as
 5   1992 Tastemaker was advised that another
 6   employee, Joey Wallace, had a lung disease
 7   which may be consistent with bronchiolitis
 8   obliterans?
 9              MR. CALABRESE:  Object to form.
10          A.    I don't recall the name of the
11   individual.  What I recall was that at some
12   time there were -- I had come about, one
13   fashion or another, probably from -- probably
14   from my interaction with Janice Dees, that
15   there were some past pulmonary -- previous
16   individuals developed pulmonary problems and
17   there was the suspicion that it was related
18   to possible work at Tastemaker.
19          Q.    Were you aware that there had
20   been pulmonary function tests at Tastemaker
21   before you came to the plant?
22          A.    I think that was the case
23   because I believe that part of what I was
24   going to do was to incorporate some of that
0030
 1   past lung function data to see how it would
 2   compare to our existing data, but I don't
 3   recall that --
 4          Q.    Okay.
 5          A.    -- if I did that or not.
 6          Q.    We'll get to that in a minute.
 7   The last item on your time estimate says, and
 8   this is for the most hours of your estimate,
 9   40 estimated hours for pulmonary toxicology
10   consultation.  In parenthesis you say,
11   currently not requested.  Do you see that on
12   your estimate?
13          A.    Yes.
14          Q.    So you were suggesting that you
15   could do this service for Tastemaker; is that
16   right?
17          A.    Yes.
18          Q.    But they never did accept your
19   offer for that work?
20          A.    That's correct.
21              (Exhibit 5 was marked for
22   identification.)
23          Q.    Let me show you Exhibit number
24   5, sir.  Is this an e-mail from Janice Dees
0031
 1   to Dr. Lockey, Pinney and McKay, doesn't have
 2   a date stated on the front page, but do you
 3   recognize this to be a fax from Janice Dees
 4   to the University and those three
 5   individuals?
 6          A.    I recognize it to be a fax, yes.
 7          Q.    The second page -- well, strike
 8   that.  Back on the first page it says, please
 9   review your own role as well as the team's
10   role and provide feedback for me.  Janice
11   Dees.  Then the following pages showed job
12   responsibilities.  Can you take a quick look
13   through this, please?
14          A.    Certainly.
15          Q.  My question's going to be do you
16   recall that these were the jobs that were
17   performed by you, Dr. Lockey and Dr. McKay?
18          A.    Okay.  I'm ready.
19          Q.    And, Dr. McKay, does this
20   Exhibit number 5, does this describe the
21   tasks that you were asked to do for
22   Tastemaker?
23          A.    Yes, it does.
24          Q.    So is it true that your primary
0032
 1   role was conducting pulmonary function tests
 2   on Tastemaker employees?
 3          A.    That was one of two primary
 4   roles.
 5          Q.    Your second primary role, was
 6   that involved in respiratory training and
 7   respiratory fit testing?
 8          A.    Primarily respirator fit testing
 9   and training.
10          Q.    And those two things, the
11   respirator fit testing training and the
12   pulmonary function tests, those were the two
13   primary tasks that you had at Tastemaker?
14          A.    Correct.
15          Q.    Now am I correct that in
16   addition to your work at Tastemaker that Dr.
17   James Lockey eventually came on board to also
18   provide services?
19          A.    That's correct.
20          Q.    And he's an occupational
21   medicine physician?
22          A.    Yes.
23          Q.    Would it be correct to say that
24   the series of events at Tastemaker was that
0033
 1   employees would go through the pulmonary
 2   function testing and if they tested below
 3   normal then they may be recommended to go see
 4   Dr. Lockey for a further history and physical
 5   and evaluation?
 6              MR. CALABRESE:  Objection.  Object
 7   to form, leading.
 8          Q.    Was that your -- was that the
 9   process that was used?
10          A.    I believe -- I think that was
11   part of it.  I think part of it was to
12   identify people with abnormal lung function
13   and then also to identify people with change
14   so that they could then be seen by Dr.
15   Lockey, yes.
16          Q.    And then there's a Dr. Susan
17   Pinney, who was involved in the project.  Is
18   she an epidemiologist?
19          A.    Yes.
20          Q.    What is epidemiology?
21          A.    Epidemiology is the study of --
22   of people and events and trying to link
23   things together.  So instead of looking at
24   individuals, it's looking at populations.
0034
 1   You may find things in populations, trends,
 2   for example.
 3          Q.    When you say trends we're
 4   talking about another way of trying to
 5   diagnose a cause for an illness?
 6              MR. CALABRESE:  Same objections.
 7          Q.    Is that one -- is that part of
 8   the purpose of epidemiology?
 9          A.    It can be used to help identify
10   increases in illnesses that may be in a
11   location or company or something that's above
12   and beyond what's expected.
13          Q.    And that's what Dr. Pinney was
14   charged with at Tastemaker; is that right?
15              MR. CALABRESE:  Same objections.
16          A.    No.  Not exactly.
17          Q.    What was her role in this
18   project?
19          A.    Her role, my understanding of
20   her role, was as an epidemiologist she has
21   the facilities, the equipment and the
22   personnel that would allow us to implement a
23   medical surveillance program but she never
24   really was -- performed an epidemiologic
0035
 1   investigation.
 2          Q.    We're going to talk to Dr.
 3   Pinney later so I'm not going to focus on her
 4   work.  We'll ask her those questions.  But
 5   you said part of her role or her primary role
 6   is involved in medical surveillance.  Can you
 7   explain, what did that mean and how did she
 8   assist you in your working?
 9          A.    Well, we were collecting a lung
10   function testing data, but in order to
11   evaluate trends, change, testing software for
12   that type of equipment did not provide the
13   output that would allow you to graphically
14   see changes in lung function over a period of
15   time.  So she had the capability of taking
16   the data that we would identify, putting it
17   into a database, working with the database,
18   and essentially providing us reports that we
19   can then use to identify people that had
20   change.
21          Q.    Now she didn't work as long at
22   Tastemaker as you did, did she?
23              MR. CALABRESE:  Objection.
24          A.    Approximately.  I don't know if
0036
 1   she went a little longer or shorter, but in
 2   the same general time period.
 3          Q.    She -- did she complete her task
 4   and prepare a report?
 5              MR. CALABRESE:  Objection.
 6          A.    She was preparing the items that
 7   were identified in -- in these tasks.
 8          Q.    Okay.  Now she's an
 9   epidemiologist but she did not do an
10   epidemiology study at Tastemaker; is that
11   right?
12              MR. CALABRESE:  Objection.
13          A.    That's correct.
14          Q.    When you were brought on to the
15   project were you retained individually or
16   were you retained as a part of the
17   University?  How did that work?
18          A.    Well, it was all done through
19   whatever the practice plan was affiliated
20   with the University.  It was -- wasn't a
21   personal contract between me and Tastemaker.
22          Q.    Were you provided any
23   information by Tastemaker as a part of your
24   work?
0037
 1          A.    I was provided lots of things.
 2   I'm not sure what you mean by information.
 3          Q.    All right.  What type of things
 4   were you provided by Tastemaker when you
 5   began your project?  Let me ask a better
 6   question.  When you began your project, as a
 7   toxicologist, you were, of course, interested
 8   in what it was that might be causing this
 9   problem at the company?
10          A.    Absolutely.
11          Q.    Okay.  Were you provided any
12   information by the company about the history
13   of lung disease at the plant or about the
14   products that were made or the ingredients
15   that were used?
16              MR. CALABRESE:  Object to form.
17          A.    There was some information that
18   was provided.  However, that changed with --
19   with time.  It was -- it was in flux.  It was
20   -- it never -- it never developed into an
21   epidemiologic study.
22          Q.    So what sort of information were
23   you provided at the beginning?
24          A.    Boy, that's hard to recollect.
0038
 1          Q.    Well, just do the best that you
 2   can, and I know that it changed.  You got
 3   more information as things progressed.  So
 4   I'm not trying -- it's not a memory test, I'm
 5   just trying to learn the best that I can what
 6   it was that you did.
 7          A.    Initially had a plant visit with
 8   Dr. Brooks, did a walk through, tried to get
 9   a feel and understanding of what was there.
10   My initial impression was it was very much
11   like a -- a high school/college/university
12   chemical laboratory.  There was lots of
13   chemicals, small volumes.  It wasn't like
14   going to a large manufacturing facility,
15   making polystyrene or some other product
16   where you roll out large numbers of things.
17   It was a lot of small, primarily small volume
18   chemicals.  With -- with buildings, with
19   rooms, lots of individual tasks in rooms.
20          Q.    So you knew, before you went
21   there, that Tastemaker was a company that
22   made flavors for food and beverage, did you
23   --
24          A.    Absolutely.  That was very
0039
 1   obvious, yes.
 2          Q.    Okay.  And so when you went to
 3   the plant and took your tour you were
 4   inspecting the areas where Tastemaker
 5   actually made flavors that went into products
 6   of its customers, food and beverage products?
 7              MR. CALABRESE:  Object to form.
 8          A.    Correct.
 9          Q.    At any time were you provided
10   with copies of the material safety data
11   sheets for the ingredients that were used by
12   Tastemaker?
13          A.    I don't recall the answer to
14   that.  There -- there probably, if we had
15   requested a specific chemical material safety
16   data sheet we may have received it.  I don't
17   -- I don't recollect.  At the time I -- I had
18   resources.  I could identify what the hazards
19   of the chemical were in the absence of an
20   MSDS, which frequently had -- was of
21   undetermined quality so whether or not I -- I
22   don't recall if I specifically asked for them
23   other than trying to find a name so --
24          Q.    But just as a general practice
0040
 1   Tastemaker didn't send over to you copies of
 2   all the material safety data sheets for the
 3   chemicals that they were using?
 4              MR. CALABRESE:  Objection.
 5          A.    I don't recall receiving for
 6   every single chemical, no.
 7          Q.    Okay.  Were you provided with a
 8   copy of the safety protocol that Tastemaker
 9   was using at the time around specific
10   chemicals?
11          A.    No.
12          Q.    Were you aware that Tastemaker
13   was following safety procedures around
14   particular chemicals at the plant?
15          A.    I knew that they had some
16   procedures in place, yes.
17          Q.    But they didn't provide you the
18   information about which specific chemicals
19   and which specific procedures they were
20   following?
21          A.    Not for all cases, correct.
22          Q.    Were you asked to sign a
23   confidentiality agreement?
24          A.    Yes, I was.
0041
 1          Q.    And did you sign one?
 2          A.    Yes, I did.
 3          Q.    Were you ever released from that
 4   confidentiality agreement?
 5          A.    I don't really recall the
 6   details of the confidentiality agreement.  I
 7   do not know today whether or not I'm released
 8   from it or not.
 9          Q.    Okay.  You don't recall, in the
10   last few years, being given a letter from the
11   company releasing -- releasing you from that
12   agreement?
13          A.    I don't recall that, no.  That
14   would be great.  Is there one?
15          Q.    I understand there might be for
16   some people.  I'm not really sure myself.  I
17   don't know.
18                You know that Dr. Lockey signed
19   a confidentiality agreement?
20          A.    That's my understanding.
21          Q.    And Dr. Pinney signed one, as
22   well?
23          A.    That's my understanding.
24          Q.    And there were other individuals
0042
 1   from the University that were part of the
 2   project working behind you?
 3          A.    I believe that's correct.
 4          Q.    And they would have all had to
 5   sign confidentiality agreements, as well?
 6              MR. CALABRESE:  Object to form.
 7          A.    That's my recollection.
 8          Q.    So you took a plant visit with
 9   Dr. Brooks.  Did you meet with John
10   Hockstrasser?
11          A.    Yes, I did.
12          Q.    You know he was the director for
13   environmental health and safety for
14   Tastemaker?
15          A.    Yes.
16          Q.    Did you have any role in
17   Tastemaker's remodeling of its plant to
18   change its ventilation system?
19              MR. CALABRESE:  Objection.
20   Assumes.
21          A.    Not a specific role.  I -- I
22   guess the answer to that would probably be
23   no, not a specific role.  Obviously there
24   were procedures during a walk through and
0043
 1   later comes observations in which became
 2   familiar with the need for some changes in
 3   ventilation, safety, other aspects, but that
 4   wasn't -- I was not asked to participate in
 5   that process directly.
 6          Q.    As a toxicologist, a person who
 7   specializes in environmental toxicology, you
 8   probably had some special knowledge that you
 9   could have given to the company, if asked?
10          A.    Yes.
11              MR. CALABRESE:  Objection.
12          Q.    Could you answer that again?
13          A.    Answer's yes.
14          Q.    The reason I ask that is because
15   it's on videotape, we will want to play that
16   later and he's -- you were speaking at the
17   same time.  Have you given a deposition
18   before?
19          A.    Yes.
20          Q.    Okay.  I didn't give you any of
21   the rules of depositions but the only rule
22   that really is important right now is that
23   your -- that I try not to speak over you and
24   you might give just a second because he's
0044
 1   objecting to a number of questions so that
 2   the reporter can type both of you down and so
 3   that the video can show both cleanly.  Thank
 4   you.  And I'll try not to speak over you.  I
 5   do have a tendency to interrupt sometimes and
 6   I apologize in advance and I'll try not to do
 7   that.
 8                After your initial walk through
 9   with Dr. Brooks did you do another walk
10   through with Dr. Lockey?
11          A.    I did a few walk throughs.  I
12   don't recall who was present for the
13   additional walk throughs.
14          Q.    Did you meet an individual at
15   the company named Nancy Higley?
16          A.    Yes.  I recall the name.
17          Q.    Do you recall working at all
18   with Nancy Higley on this project?
19          A.    What's her title?
20          Q.    Well, my understanding was she
21   was the company toxicologist.
22              MR. CALABRESE:  Objection.
23   Misstates.
24          A.    I did not work directly with
0045
 1   Nancy Higley.
 2          Q.    Did you know that Tastemaker had
 3   a toxicologist at the -- that worked for
 4   them?
 5              MR. CALABRESE:  Object to form.
 6          A.    I knew that they had a
 7   toxicologist, yes.
 8          Q.    Did you ever meet that person?
 9          A.    Yes.
10          Q.    Who did you understand it to be?
11          A.    Well --
12          Q.    Was it Nancy Higley?
13          A.    -- Nancy's now the name that --
14   that you mentioned -- just by mentioning
15   Nancy Higley I don't remember what anyone's,
16   you know, particular roles were.  Excuse me.
17   I did meet their toxicologist.
18          Q.    Okay.  Did you ever work
19   directly with Nancy Higley on any project
20   involving this investigation?
21          A.    No.
22          Q.    Did Nancy Higley provide you any
23   information as to what it was she was doing
24   or finding?
0046
 1          A.    No.  Or let me re -- no
 2   substantial information that I can recall.
 3   Maybe, you know, a teeny bit of something but
 4   very, very minimal information from her to
 5   me.
 6          Q.    And Nancy Higley never asked for
 7   any toxicology advice from you?
 8          A.    There may have been like a group
 9   conference meeting and a -- early on before
10   we really got involved in a medical
11   surveillance and she, or others in that
12   group, may have asked for some initial
13   impressions, but it would have been very
14   early on before a lot of data was obtained.
15          Q.    And very preliminary?
16          A.    And very preliminary.
17          Q.    No subsequent follow-up detailed
18   discussions with Nancy Higley about what
19   chemicals at the plant might be causing this
20   lung disease?
21          A.    No.
22          Q.    I talked a few minutes ago
23   about -- we're going to get into the details
24   of your work in just a second, and, by the
0047
 1   way, this is a very relaxed atmosphere.  You
 2   know, there's no judge, there's no jury here.
 3   If you need to take a break, and we'll take
 4   periodic breaks, but if you need to do that
 5   at any particular time let me know.
 6                I mentioned a few minutes ago
 7   that Tastemaker was a flavors plant.  Are you
 8   familiar with the term GRAS or Generally
 9   Recognized As Safe?  Have you heard that
10   before?
11          A.    Yes.
12          Q.    Do you agree that a substance
13   may be called GRAS but not be safe when it's
14   inhaled or heated?
15          A.    Absolutely.
16              MR. CALABRESE:  Objection.
17          Q.    Can you say that again?
18          A.    Absolutely I'm aware of that.
19          Q.    Do you agree that a substance, a
20   flavor substance, might not be safe when it's
21   mixed with other ingredients?
22              MR. CALABRESE:  Objection.  We're
23   beyond the scope of what the notice was for.
24              MR. BRITTINGHAM:  Mr. Crick, I
0048
 1   assume we can have the agreement we've always
 2   had, that an objection by one defendant is
 3   good for all defendants?
 4              MR. CRICK:  Sure.
 5              MR. BRITTINGHAM:  Thank you.
 6          Q.    Do you agree, sir, that a flavor
 7   ingredient may not be safe when it's mixed
 8   with other ingredients?
 9          A.    Yes.
10              MR. CALABRESE:  Objection.
11          Q.    Do you understand and agree that
12   Tastemaker made flavors that were intended to
13   be used by food companies in making food
14   products?
15          A.    Yes.
16          Q.    For example, do you know that
17   Tastemaker made butter flavoring that was
18   intended to be used by popcorn companies in
19   making microwave popcorn?
20              MR. CALABRESE:  Object to the
21   form.
22          A.    I don't recall if I knew at that
23   time that butter flavor was one of the
24   flavorings.  They made hundreds to thousands
0049
 1   of flavorings.
 2          Q.    You know that Tastemaker does
 3   make butter flavoring for microwave popcorn
 4   plants?
 5          A.    I don't recall.
 6          Q.    Okay.  You agree that food, the
 7   food flavoring industry, has been associated
 8   with a number of cases of bronchiolitis
 9   obliterans?
10              MR. CALABRESE:  Objection.
11          A.    Yes, I know that.
12          Q.    Let me show you Exhibit number
13   6.
14              (Exhibit 6 was marked for
15   identification.)
16          Q.  Exhibit 6 is an August 12th, 1994
17   letter from John Hockstrasser to Stuart
18   Brooks.  It's Bates stamped TM 009958.  It's
19   enclosing pulmonary function -- function test
20   summaries for Tastemaker Cincinnati employees
21   from the period 1991 to '94.  Have you ever
22   seen this before, Dr. McKay?
23              MR. CALABRESE:  Object to the
24   form.  Also object to foundation.
0050
 1          A.    I don't recall if I saw this or
 2   not.
 3          Q.    This indicates that -- on the
 4   third page there's a page called summary of
 5   data for Cincinnati Tastemaker employees with
 6   suspect impaired pulmonary function, the
 7   third page of that document?
 8          A.    Counting the cover page?
 9          Q.    Yes, sir.  Do you recall being
10   provided this information before you began
11   your work at Tastemaker, or when you began
12   your work?
13              MR. CALABRESE:  Same objections.
14          A.    I -- I don't recall.
15          Q.    This sheet indicates a number of
16   individuals at the plant that tested as
17   having below normal pulmonary function tests;
18   is that right?
19          A.    Yes.
20          Q.    We'll refer to that in a little
21   bit again.  Do you know who did the pulmonary
22   function tests for Tastemaker before you
23   became involved?
24          A.    I don't remember.
0051
 1              (Exhibit 7 was marked for
 2   identification.)
 3          Q.    Let me show you Exhibit number
 4   7.  I'd like you to tell me what that is,
 5   please.  Short a copy for that one.
 6          A.    Okay.  I'm ready.
 7          Q.    What is Exhibit 7, Dr. McKay?
 8          A.    It's an outline of a
 9   presentation reporting some of the findings
10   from the medical surveillance program.
11          Q.    This is called Status Report &
12   Data Presentation for Givaudan
13   Roure/Tastemaker January 23, 1998 presented
14   by James Lockey, M.D., Susan Pinney, Ph.D.,
15   Roy T. McKay, Ph.D.  Is this a document that
16   was prepared at the University for a meeting
17   with Givaudan?
18          A.    Yes.
19          Q.    Did you participate in that
20   meeting?
21          A.    I don't recall if I was at the
22   meeting or not.
23          Q.    Did you provide the data,
24   provide information about your findings from
0052
 1   the pulmonary function tests to Tastemaker
 2   during the course of your work?
 3          A.    I know I participated in the
 4   process of putting the data together, yes.
 5          Q.    And was there information that
 6   was presented to Givaudan about the findings
 7   that you people at the University were --
 8   were seeing at Tastemaker?
 9          A.    Yes.
10          Q.    And is that what this was
11   intended to be, was to be a summary of some
12   of the findings that you had found?
13          A.    Yes.
14          Q.    And did you help put together
15   this information?
16          A.    Yes.
17          Q.    Did you ever meet with any of
18   the Givaudan executives from Europe?
19              MR. CALABRESE:  Objection.
20          A.    I remember meeting with a
21   physician from Europe.
22          Q.    Show you Exhibit number 8.  Is
23   this a note that you wrote to Susan Pinney?
24          A.    Yes.
0053
 1          Q.    And says, these are the
 2   Tastemaker people we met with on October 28,
 3   1997.  Is that what you wrote?
 4          A.    Yes.
 5          Q.    And then up above are the two, I
 6   guess, business cards that you provided to
 7   her with the memo?
 8          A.  Correct.
 9          Q.  And it indicates Dr. Raymond
10   Calame, Director of Corporate Safety &
11   Environmental Affairs with Givaudan-Roure SA
12   in Geneva, Switzerland and a Dr. Andreas
13   Fluckiger, a Specialist in Occupational and
14   General Medicine, and the Corporate Medical
15   Director for Hoffmann-La Roche, Limited, also
16   in Switzerland.  Are these the gentlemen that
17   you met with?
18          A.    Yes.
19          Q.    And did you provide these
20   individuals with information of your findings
21   at the Tastemaker plant?
22          A.    Yes.
23          Q.    Now back to Exhibit number 7.
24   Was Dr. Lockey the primary person providing
0054
 1   the presentation information to Givaudan and
 2   Tastemaker?
 3          A.    Yes.
 4          Q.    This gives a history, I take it,
 5   of the work that the University was doing for
 6   Tastemaker; is that right?
 7          A.    Correct.
 8          Q.    And the second page says,
 9   History of Pulmonary Surveillance Program, it
10   says, initiated pulmonary function testing by
11   UC (February 1995) for purposes of supporting
12   data quality including increased reliability
13   and -- and other things.  This is regarding
14   the work that you did?
15          A.    Correct.
16          Q.    I showed you earlier Exhibit
17   number 6, the pulmonary function test data,
18   that was sent to Dr. Brooks in '94?
19          A.    Yes.
20          Q.    Okay.  We're going to go through
21   your data and your charts in just a few
22   minutes but I -- I never saw in here a
23   history of the lung function studies at
24   Tastemaker beginning with this data in '91.
0055
 1   Most of the test reports and test data you
 2   put together were comparisons beginning in
 3   1995; is that right?
 4              MR. CALABRESE:  Object.
 5   Objection.
 6          A.    Yeah, most -- most of it was the
 7   data that we collected.
 8          Q.    Okay.  And did they ask you to
 9   provide a summary or -- or even analyze the
10   data that was found for that?
11              MR. CALABRESE:  Objection.
12          A.    I don't -- I don't recall if I
13   was asked to do that or not at this point.
14          Q.    It indicates, on this Exhibit
15   number 7, at the bottom, it says -- you began
16   in February of '95 and at the bottom it says,
17   shortly afterward UC provided suggestion to
18   conduct serial measurement, and is that the
19   repeated pulmonary function test you talked
20   about earlier?
21          A.    Yes.
22          Q.    And you did do that for a -- for
23   a time period?
24          A.    For a short period of time, yes.
0056
 1          Q.    The next page says, Purpose of
 2   PFT Program.  Does this give a -- a good
 3   summary of what the purpose of such a program
 4   would be?
 5          A.    Yes.
 6          Q.    And this is what you did do for
 7   Tastemaker?
 8          A.    Yes.
 9          Q.    If you go to page five there's a
10   heading that says A, B, C criteria.  You used
11   a set of codes, or at least A, B, C criteria,
12   to help make it easier for Tastemaker to
13   understand the changes in pulmonary function
14   test results that you were finding at the
15   plant; is that right?
16              MR. CALABRESE:  Objection.
17          A.    Well, this was done for our own
18   purposes, to try to identify people that we
19   thought may need additional attention.
20          Q.    Then I asked a really bad
21   question.  Just could you simply explain what
22   is the A, B, C criteria that you used?
23          A.    The A, B, C criteria was
24   designed to identify people who have
0057
 1   developing lung impairment as well as having
 2   existing lung impairment so that they could
 3   be followed more extensively.
 4          Q.    So A, B, C would mean, for
 5   example, group A, group B, group C, these are
 6   people who fell in the specific pulmonary
 7   function test categories?
 8          A.    Correct.
 9              MR. CALABRESE:  Objection.
10          Q.    And A that you used was if there
11   was a drop in the forced vital capacity or
12   the FEV1 of greater than equal to five
13   percent; is that right?
14          A.    Correct.
15              MR. CALABRESE:  Objection.
16          Q.    And then it says, and less than
17   LLN.  What -- what does that stand for?
18          A.    That's lower limit of normal.
19   The concept here was certain amount of
20   variability in lung function testing and we
21   were using different amounts of change in
22   lung function to identify people.  In
23   category A it was a little bit tighter, or
24   was fairly tight, and it would fall in that
0058
 1   group if they had a change greater than five
 2   percent and, in addition to that, they had an
 3   abnormal value based on predicted values for
 4   FEC, the volume, or the ratio which is used
 5   for airway obstruction.  The -- the second
 6   category, B, was if they dropped by 10
 7   percent or more we don't care if their lung
 8   function was abnormal or not.  That was a
 9   heightened concern for us.
10          Q.    So it could be within the normal
11   range, but if it was a drop of 10 percent or
12   more you wanted to know about it?
13          A.    Correct.
14          Q.    And that's what B is?
15          A.    Correct.
16          Q.    And what was C?
17          A.    C was a category where they had
18   clearly defined reductions in lung function.
19   That would allow us to track those people
20   even if they don't have any ongoing change,
21   something happened previously so we could
22   follow them a little bit more frequently.
23          Q.    This was a big project; this
24   wasn't just doing a pulmonary function test
0059
 1   on one or two people?
 2          A.    It was -- it was a -- certainly
 3   more extensive than -- than what most
 4   companies would be doing for -- for
 5   surveillance.  So it was a -- I would call it
 6   a very heightened pulmonary surveillance
 7   activity.
 8          Q.    Now two pages back -- and if you
 9   don't mind at the bottom of the page you see
10   a series of numbers there?  Those --
11          A.    Yes.
12          Q.    Okay.  We're going to use those
13   numbers because the top is not numbered
14   consecutively.  So we're at page 5579 and
15   there's a document called Worker Summary
16   Report.  This was a form that you used in
17   your work for Tastemaker; is that right?
18              MR. CALABRESE:  Continuing
19   objection to leading.
20          A.    Correct.  This was an example of
21   a report, reporting form.
22          Q.    Okay.  And what does this help
23   you with?  How does this work?
24          A.    It was basically a form that
0060
 1   allowed -- allowed us to take lots of data
 2   from lung function tests as well as the
 3   results of the questionnaire and summarize
 4   the more pertinent information, information
 5   we felt was most important for identifying
 6   people who had lung problems or developing
 7   lung problems so we can have it in a distinct
 8   form for identification purposes and also for
 9   reporting purposes.
10          Q.    And then if you take a look at
11   the next page, 5580, is this an example of
12   the type of reporting form that you used for
13   the project?
14          A.    Yes.
15          Q.    Up at the top it says,
16   Substances Reported as Causing Symptoms for
17   Workers Who Meet At Least One of the PFT
18   Retest Criteria, and then it lists A, B, C.
19   So this was -- you took the data from the
20   pulmonary function tests and what was on your
21   worker summary report, and then you convert
22   that into this report for the company as a
23   whole for people who tested abnormally?
24          A.    Yes.
0061
 1          Q.    And was this put together so
 2   that there would be a more easy to understand
 3   summary of the data for both your -- your
 4   University and for Tastemaker?
 5          A.    Yes.
 6          Q.    To provide them with the
 7   important information that you were seeing in
 8   your studies?
 9              MR. CALABRESE:  Objection.
10          Q.    Is that right?
11          A.    That is correct.
12          Q.    Now this says substances
13   reported, and I need to look back on this,
14   too.  There's a reference on page 5579, the
15   worker summary report, to a questionnaire.
16   Did you work on a questionnaire that was
17   filled out by the Tastemaker employees as a
18   part of the pulmonary function test?
19          A.    The -- to some degree.  The
20   primary responsibility of the questionnaire
21   was Dr. Pinney and Dr. Lockey.  I had input
22   to it.
23          Q.    Okay.  And one of the purposes
24   of the questionnaire was to learn more about
0062
 1   the individual who was going to be giving the
 2   breathing test?
 3              MR. CALABRESE:  Objection.
 4          A.    In part.  Our philosophy going
 5   in was that people may have developing
 6   pulmonary problems and still have normal lung
 7   function or not even lung function that's
 8   changing.  For example, I'm recovering from a
 9   cold right now so I still have some
10   respiratory symptoms.  I would venture to
11   guess my lung function would be normal.  So
12   it's unclear, in many cases, certainly lung
13   function testing alone is not going to do the
14   job.  Just asking for symptoms alone is not
15   going to do the job.  So this was an attempt
16   to try and look at both concrete lung
17   function data and symptoms to help identify
18   people that may need to be recognized.
19          Q.    And on the questionnaire this
20   indicates -- there's a question 5 E says,
21   list any substances, activities or areas of
22   the plant that cause wheezing or whistling.
23   Do you see that?
24          A.    Yes.
0063
 1          Q.    And I understand that was one of
 2   the questions that was asked for all -- of
 3   all of the employees as a part of this
 4   process?
 5          A.    Yes.
 6          Q.    Below that there's a question
 7   18, it says, list any substances you work
 8   with at company X that result in burning of
 9   eyes, nose or throat, sneezing or difficulty
10   in breathing.  That was another one of the
11   questions that was asked of the employees?
12          A.    Yes.
13          Q.    And so when we go to the next
14   page, the substances reported sheet, page
15   5580, what you reported was whether the
16   employee fell into the category A, B or C,
17   and you also reported if there were any
18   chemicals that were completed in the answers
19   to those questionnaires?
20          A.    Correct.
21          Q.    And this was all to be given to
22   Tastemaker so they could help -- it could
23   help them in identify what was the problem
24   and perhaps also explain what was the cause
0064
 1   of the problems?
 2              MR. CALABRESE:  Objection.
 3          A.    That was the intent.
 4          Q.    Now there were a series of
 5   reports that were given to Tastemaker over
 6   the time period that you did your work for
 7   the company; is that right?
 8          A.    Yes.
 9          Q.    If we go to the next page, it's
10   5581, it says --
11          A.    Mine's cut off a little bit.  Is
12   that this page here?  Yeah, okay.
13          Q.    Okay.  It says, Summary of
14   Current Previous PFT Test Results for Workers
15   Who Meet At Least One of the PFT Retest
16   Criteria.  What do we see on this page?
17          A.    Well, this is a -- first of all,
18   I don't -- I don't recall.  This is --
19          Q.    This is part of the presentation
20   to Givaudan.
21          A.    Okay.  This would be an example
22   of summarizing those people that met one of
23   those retest criteria.  Retest criteria was
24   the identified person who would be tested at
0065
 1   an additional frequency, so this would be a
 2   -- individuals that we had a higher suspicion
 3   of having a potential work related problem.
 4   And what this did is summarize their test
 5   results and the reason why they fell on to
 6   the list.
 7          Q.    So there were 14 individuals
 8   shown on this page who fell into criteria A,
 9   B or C?
10           A. Correct.
11          Q.    And these are people that,
12   again, showed some sort of drop in their lung
13   function tests?
14          A.    Correct.
15          Q.    Now if you'd turn to page 5587
16   there's a page that's called Number (Percent)
17   of Employees at Each Facility Stratified by
18   the Number of PFT's.  What does this sheet
19   show?
20          A.    This is taking the different
21   facilities that Tastemaker had and shows the
22   number of tests that each -- identifies the
23   number of people that had a certain number of
24   tests.  In other words, in the first column,
0066
 1   or the second column where it says Australia
 2   on the first row of data 23 individuals
 3   conducted a lung function test, and that
 4   apparently represented 92 percent of the
 5   employees at that facility.
 6          Q.    So this shows --
 7          A.    And then --
 8          Q.    -- the number of employees at
 9   each facility and then what that percentage
10   of the employees were who took the test?
11          A.    Correct.
12          Q.    And so is it correct that
13   pulmonary function tests were performed at
14   Tastemaker facilities in Australia, Lakeland,
15   St. Louis, 70th Street in Cincinnati, the
16   Edison plant, the Devon, Kentucky plant, a
17   Cincinnati location and -- is that correct?
18          A.    Yes.
19          Q.    Now were you involved in -- in
20   the PFT tests at all of those locations?
21          A.    I had a role in those other
22   locations.
23          Q.    Was your role overseeing it and
24   then yet there were individuals at those
0067
 1   sites that did the tests?
 2          A.    The role changed.  It was
 3   initially to try and make sure that each of
 4   these sites had acceptable lung function
 5   testing equipment so they would have to buy
 6   equipment that we felt was suitable for
 7   getting good measurements that met spirometry
 8   standards and guidelines and the guidelines
 9   that we would expect them to follow.  So in
10   some cases I performed training of some of
11   the testing technicians who were going to
12   administer the tests so that they could
13   follow the procedures, but I didn't conduct
14   the tests on these individuals.
15          Q.    If you go back to page 5590
16   there's a sheet that says, Lower Limits of
17   Normal for Pulmonary Function Tests.  And is
18   this simply a chart for education purposes
19   that shows what the lower limit number would
20   be for a normal test?
21          A.    It identifies the lower limit of
22   normal --
23          Q.    Okay.
24          A.    -- correct.
0068
 1          Q.    This is to help educate your --
 2   the person you're giving the speech to as to
 3   what is the lower limits of normal?
 4          A.    Correct, rather than using
 5   arbitrary cutoffs, which were customary at
 6   the time, we were using statistically derived
 7   lower limits of normal from another
 8   investigator.
 9          Q.    And do the next series of pages
10   show what the, in chart form, show what the
11   results were of your pulmonary function tests
12   at the different locations?
13              MR. CALABRESE:  I'm sorry.  What
14   page are you looking at?
15          Q.    Oh, the next five, 10 pages.
16          A.    The answer's yes.
17          Q.    So if we look at these charts,
18   for example, the first one, it says, percent
19   predicted, FVC frequency distribution plot
20   for males at the 70th Street, the Edison and
21   Devon, Kentucky plants, those are the three
22   facilities in the Cincinnati area, this shows
23   what the total data was for your findings at
24   those plants; is that right?
0069
 1          A.    Correct.
 2              MR. CALABRESE:  Continuing
 3   objection to leading.
 4          Q.    Is that correct?
 5          A.    That's correct.
 6          Q.    And this gives a percentage
 7   breakdown of the employees that met the
 8   different test criteria; is that correct?
 9          A.    Correct.
10          Q.    The next page is the same chart
11   but for females at those plants; is that
12   right?
13          A.    Correct.
14          Q.    And the next page is the percent
15   of predicted in the FEV1 over FVC test, is
16   that correct, for males?
17          A.    Correct.
18          Q.    And the next one is the same for
19   females?
20          A.    Yes.
21          Q.    The next page says percent
22   predicted FEV1 over FVC frequency
23   distribution plot for males in St. Louis and
24   Australia.  Is this supposed to be a
0070
 1   combination of the data from St. Louis and
 2   Australia for that same type of pulmonary
 3   function test?
 4          A.    That's what I believe probably
 5   because numbers were -- probably the numbers
 6   were low and it was, therefore, useful to
 7   combine it.
 8          Q.    Okay.  The next page says,
 9   percent predicted at St. Louis and Australia
10   for females.  What does this show?
11          A.    Well, this is page 97 --
12          Q.    Yes, sir.
13          A.    -- you're referring to?
14          Q.    Yes, sir.
15          A.    This is just a bar graph
16   identifying a percent of employees that had
17   an FEV1 FVC ratio stratified at certain
18   percentage, percentages of predicted, those
19   that would be in a normal and abnormal
20   category.  And this is just females, St.
21   Louis and Australia combined on their initial
22   test.
23          Q.    What -- what does stratified
24   mean, for people on the jury that are not
0071
 1   familiar with that word?
 2          A.    Grouped.
 3          Q.    The -- if you go three pages
 4   back --
 5          A.    By back, you mean forward,
 6   right?
 7          Q.    -- to page 5600.  There's a
 8   sheet that says Number and Percent of
 9   Employees With % Predicted FVC or % Predicted
10   FEV1 over FVC.  Less than -- Less Than the
11   Lower Limit of Normal Based on First Test.
12   That's a mouthful.  What does this document
13   show?
14          A.    It's basically summarizing a
15   number of abnormal tests that we identified.
16          Q.    So there's a chart that says
17   facility, and below that it lists Cincinnati,
18   St. Louis, Australia and other blue color
19   work force, then you have a gender, and then
20   you have what's called the number or percent
21   less than lower limit of normal with, below
22   that, three columns, percent of predicted
23   FVC, percent predicted FEV1 over FVC, and
24   both.  So if you could help me here.  I want
0072
 1   to look at Cincinnati total, and we see the
 2   number 20 and 4.1.  What does that reference?
 3          A.    That's saying if we combine the
 4   results for men and women that there are 20
 5   people that had a measured exhaled volume FVC
 6   less than the lower limit of normal, and
 7   those 20 people represented 4.1 percent of
 8   the population.
 9          Q.    And the next column says present
10   -- percent predicted FEV1 over FVC, and
11   there's the number 77 and 15.9.  What does
12   that mean?
13          A.    That's 77 individuals that had a
14   low ratio representing 15.9 percent of the
15   total population tested.
16          Q.    And then if we go down to that
17   same one for St. Louis that was 17
18   individuals or 16.7 percent of the
19   population?
20          A.    Correct.
21          Q.    And if you go down to Australia
22   the number was six or 24 percent of the
23   population; is that right?
24          A.    Correct.
0073
 1          Q.    And then at the last one it
 2   says, other blue color work force, you've got
 3   97 representing 13.2 percent of the
 4   population?
 5          A.    Yes.
 6          Q.    And these are individuals who
 7   tested less than normal on the FEV1 over the
 8   FVC test?
 9          A.    Correct.
10          Q.    Does the rest of this report
11   show other information that would have been
12   provided by the University maybe through Dr.
13   Lockey to Givaudan and Tastemaker?
14          A.    Yes.
15              (Exhibits 9-22 were marked for
16   identification.)
17          Q.    I want to show you Exhibits 9
18   and 10.
19              MR. CALABRESE:  Which one is
20   which?
21          Q.    Males is nine, females is 10.
22   Are Exhibits 9 and 10 graphs that were
23   prepared for presentation to -- of
24   information to Tastemaker about the data that
0074
 1   you were finding in your pulmonary function
 2   tests?
 3          A.    Yes.
 4              MR. CALABRESE:  Objection.
 5          Q.    That is a yes?
 6          A.    That was a yes.
 7          Q.    And I take it this information
 8   was conveyed to the company?
 9          A.    I believe that was the case.  I
10   don't know that with certainty.
11          Q.    Okay.  You believe that it was,
12   though?
13          A.    I would suspect -- I would
14   strongly believe it was, yes.
15          Q.    Okay.  And Exhibit number 11.
16   Can you tell me what would be Exhibit number
17   11?
18          A.    Well, I don't know this is -- I
19   don't think this is something that we
20   prepared.
21          Q.    What does this show?  Can you
22   interpret that for me?
23          A.    Certainly.  It -- it looks like
24   there was an attempt here to look at
0075
 1   different locations and to identify the
 2   number of individuals that have an abnormal
 3   measurement for the ratio, which would be an
 4   indicator of airway obstruction, FEV1, FVC,
 5   and the second page same thing, only this
 6   case looking solely at the FEV1.  The
 7   criteria being used here looks like it's
 8   using arbitrary lower limits of normal rather
 9   than statistically derived lower limits of
10   normal.
11          Q.    And you indicated this was
12   showing the location in the plant compared to
13   the pulmonary function test results; is that
14   how you're interpreting this?
15          A.    Yeah.  I didn't put this
16   together.
17          Q.    My question's --
18          A.    They used --
19          Q.    -- my question for you is did
20   you put together a chart like this?  I didn't
21   see one in your data.
22          A.    I don't recall putting together
23   a chart like this.
24          Q.    That would show the comparison
0076
 1   of the locations in the plant to the results
 2   of the pulmonary function tests?
 3          A.    Correct.
 4          Q.    And I guess Tastemaker didn't
 5   ask you to do a study in this fashion?
 6              MR. CALABRESE:  Objection.
 7          A.    I don't recall.  I can say that
 8   there were some challenge -- I don't really
 9   recall.  I can say there were some
10   difficulties in terms of looking at location
11   versus job title, people move about, so there
12   was some -- I know from our perspective it
13   was -- we were thinking there were some
14   challenges of trying to identify if a person
15   moved from one location to another location
16   is it the location or their job title or
17   their activity.  Could they be
18   miscategorized.  So some of those issues were
19   always in the back of our mind.
20          Q.    Why don't we take a few minute
21   break time and I can mark some things, make
22   it a little more streamlined?
23          A.    Sounds good.
24              MR. GRUBB:  Off the record.  Time
0077
 1   is 10:45 and 41 seconds.
 2              (Break taken.)
 3              MR. GRUBB:  We're back on the
 4   record, Mr. Crick, the time is 10:58 and 12
 5   seconds.
 6          Q.    Dr. McKay, I've just handed you
 7   Exhibits 12 through 21.  You had a chance to
 8   take a look at those?
 9          A.    Yes.  Well, I got 12, 21 and 22
10   you handed me.
11          Q.    They're all in one there.
12          A.    Oh.  You're right.
13          Q.    Okay.  And you've had a chance
14   to take a look through these?
15          A.    Skim through them, yes.
16          Q.    These are all documents that say
17   Tastemaker Worker Summary Report, and they're
18   -- are these the pulmonary function test
19   reports for various individuals at Tastemaker
20   that you were involved with?
21          A.    Yeah, they're summary for the --
22   both the pulmonary function and the
23   questionnaire results.
24          Q.    Okay.  And earlier we were
0078
 1   looking at a worker summary report as part of
 2   the presentation material to Givaudan.  This
 3   is the same form we were looking at, I
 4   believe?
 5          A.    Yes.
 6          Q.    And so am I correct, for
 7   example, on Exhibit number 12 is this the
 8   worker summary report for Walt Vaske?
 9          A.    Yes.
10          Q.    And does this show the results
11   of five or so pulmonary function tests that
12   he gave as a part of your study?
13          A.    Yes.
14          Q.    And then you have what's called,
15   in the middle up here, called retest criteria
16   with the A, B, C categories.  These are the
17   criteria we talked about earlier?
18          A.    Correct.
19          Q.    And --
20              MR. CALABRESE:  Object to the form
21   on that.
22          Q.  -- are you saying in Walt Vaske's
23   case that he met criteria A, B and C?
24          A.    Yes.
0079
 1          Q.    Now down below this lists, for
 2   Walt Vaske, question three, list any
 3   substances, activities or areas of the plant
 4   that cause chest tightness.  And am I correct
 5   that one of the chemicals that he listed was
 6   diacetyl?
 7              MR. CALABRESE:  Objection.  Rule
 8   of completeness.
 9          A.    That he listed, yes.
10          Q.    And that was the point of the
11   form, to include all the chemicals that the
12   employees were -- thought answered this
13   question?
14          A.    The point was for the employee
15   to identify chemicals that they thought may
16   have been causing that particular symptoms,
17   yes.
18              MR. CALABRESE:  And it'd make this
19   go faster, Steve, if you'd ask him to read
20   the complete list so I don't have to come
21   back and do it.
22          Q.    And then we have question 18 A,
23   it says, list any substances you work with at
24   Tastemaker that result in burning of eyes,
0080
 1   nose or throat, sneezing or difficulty in
 2   breathing, and it's got listed same as 3E.
 3   Is that right?
 4          A.    Yes.
 5          Q.    Exhibit 13, is this the worker
 6   summary report for Ron Feldkamp?
 7          A.    Yes, it is.
 8          Q.    And does this show that he met
 9   criteria A and B but not criteria C?
10          A.    Yes.
11          Q.    And in his answer to question 18
12   A did he also list diacetyl --
13              MR. CALABRESE:  Objection.
14          Q.    -- among other chemicals?
15          A.    Yes, I -- well, it lists here
16   di-methyl sulfide diacytal.  I don't know if
17   that's the same as diacetyl.
18          Q.    The next document, Exhibit
19   number 14, the name has been blanked out, but
20   does this show that this particular
21   individual also met criteria A and B?
22          A.    Yes.
23          Q.    And on that person's answer to
24   question 18 did that person also list
0081
 1   diacetyl -- diacetyl?
 2              MR. CALABRESE:  Objection.  Rule
 3   of completeness.
 4          A.    Yes.
 5          Q.    On Exhibit 15 -- incidentally,
 6   I'm not -- because it's redacted I'm going to
 7   use the Bates number.  It's UCMC 01476.
 8              MR. CALABRESE:  That was 14, just
 9   so we're clear.
10          Q.    Exhibit 14.  And Exhibit 15 is
11   UCMC 01288.  Dr. McKay, is this a worker
12   summary report for an unnamed individual, at
13   least to me, that shows that person meeting
14   criteria B?
15          A.    Yes.
16          Q.    And did that person list, among
17   others, diacetyl?
18          A.    Yes.
19              MR. CALABRESE:  Same objection.
20          Q.    And if you look at Exhibit 16,
21   UCMC 01485, is this another worker summary
22   report for, again, an unnamed individual?
23          A.    Yes.
24          Q.    Now I say unnamed but the names
0082
 1   were put on here but they've been whited out
 2   for me.  Do you have any idea who this
 3   individual is?
 4          A.    Oh, no.
 5          Q.    Okay.  This is -- did this
 6   person also meet criteria B?
 7          A.    Yes.
 8          Q.    Again, criteria B meant that
 9   they had a lower than predicted FVC, or tell
10   me again what does criteria B mean?
11          A.    Well, I was just looking at that
12   myself.  Here it says criteria B is a change
13   in FVC or FE -- or FEV1 greater than five
14   percent, and in addition to that they have a
15   lung function that would be less than the
16   lower limit of normal.
17          Q.    Okay.
18          A.    Which --
19          Q.    Go ahead.
20          A.    -- which, from my recollection,
21   I thought was the definition for criteria A
22   in the other report that I was looking at.
23          Q.    All right.  But, in any event,
24   this is another indication of a less than --
0083
 1   less than good pulmonary function test?
 2          A.    Yeah.  That --
 3              MR. CALABRESE:  Object to form.
 4          A.    The As and Bs may have been
 5   changed somewhere.
 6          Q.    Okay.
 7          A.    But bottom line, these are
 8   people that you would want to identify and
 9   follow from a medical surveillance
10   perspective.
11          Q.    Okay.  And for this one does it
12   indicate, for question three, feel there are
13   production areas of the plant in which, at
14   times, the vapors become so strong they can
15   seem to take your breath away, poor
16   ventilation, spray dried powders, vapors and
17   production.  You see that?
18          A.    Yes.
19          Q.    And for 18 A it says,
20   acetaldehyde, general dust in the air (spray
21   dry) vapors in air-liquids.  Do you see that?
22          A.    Yes.
23          Q.    You were never asked to further
24   investigate these particular breathing or
0084
 1   irritation complaints by the workers, though,
 2   were you?
 3              MR. CALABRESE:  Objection.
 4          Q.    These specific chemicals?
 5          A.    No.
 6          Q.    Were you aware that butter
 7   flavoring was made in spray dry and liquids?
 8          A.    I didn't -- I don't recall the
 9   term butter.  I recall -- there are many
10   different flavors being made.  I don't
11   specifically remember butter.
12          Q.    If you look at Exhibit number 17
13   is this another worker summary report, this
14   one's for a senior research chemist at the
15   pilot plant.  Do you see that?
16          A.    Yes.
17          Q.    And did this person meet
18   criteria B?
19          A.    Yes.
20          Q.    And for the answer to 18 A does
21   that person list, among other chemicals,
22   diacetyl?
23          A.    Yes.
24              MR. CALABRESE:  Same objection.
0085
 1   Rule of completeness.
 2          Q.    And if you look at Exhibit 18 is
 3   this a worker summary report -- let me double
 4   check here.  Looks like this is another
 5   worker summary report for that same senior
 6   research chemist, maybe an earlier one.  Is
 7   that how you read this?  Does it look like
 8   the same person as Exhibit 17?
 9          A.    Let me look.  I might be able to
10   identify that for you.  My impression here is
11   that these are most likely the same
12   individual where Exhibit 17 has additional
13   data.
14          Q.    And I think this is an example
15   of one you were talking about because if you
16   look Exhibit 18 shows that he did not meet
17   criteria A or B but did meet C, and then on
18   17, the later exam, he did meet criteria B.
19   So his test results got worse on criteria B.
20              MR. CALABRESE:  Objection.
21   Object to characterization, object to
22   leading.
23          Q.    Go ahead.
24          A.    I'd have to -- there could be --
0086
 1   there could be several things going on.
 2          Q.    Well, then let's skip it.
 3          A.    Yeah.
 4          Q.    Let's go to number 19.  Is this
 5   a worker summary report for an operator, name
 6   blanked out?
 7              MR. CALABRESE:  I'm going to
 8   object to --
 9          A.    Yes.
10              MR. CALABRESE:  -- to this as an
11   example of another employee.  This document
12   was previously marked as an exhibit.
13              MR. CRICK:  What?
14              MR. CALABRESE:  I believe it was
15   14, I believe this was Exhibit 14.  I think
16   it's the same problem we were just
17   discussing.
18          Q.    Is this a -- also appear to be a
19   worker summary report for an individual who
20   went through testing at Tastemaker?
21          A.    Yes.
22              MR. CALABRESE:  Objection.
23          Q.    And this is another report where
24   this information was provided to Tastemaker,
0087
 1   I take it?
 2          A.    Yes.
 3          Q.    And this is another occasion
 4   where, in this report, the individual was
 5   listed as answering question 18 as including
 6   diacetyl?
 7              MR. CALABRESE:  Objection.  Rule
 8   of completeness.
 9          A.    Yes.
10          Q.    And Exhibit 20, is this a worker
11   summary report for a lead operator in the
12   spray dry area?
13          A.    Yes, it is.
14          Q.    Now did this person also list,
15   as chemicals that result in burning of eyes,
16   notes or throat, sneezing or difficulty in
17   breathing, did that person also list, among
18   others, diacetyl?
19              MR. CALABRESE:  Objection.  Rule
20   of completeness.
21          A.    They listed the di-methyl
22   sulfide diacytal.
23          Q.    And Exhibit 21, is this another
24   worker summary report, this one for an
0088
 1   operator in spray dry?  Is this one for an
 2   operator in spray dry?
 3          A.    Yes, it is.
 4          Q.    And did this person also answer
 5   question 18 by listing, among other
 6   chemicals, diacetyl?
 7              MR. CALABRESE:  Same objection.
 8          A.    Yes.
 9          Q.    And I -- I agree that all these
10   questionnaires or reports in Exhibits 12
11   through 21, the individuals listed chemicals
12   besides diacetyl, correct?
13          A.    Yes.
14          Q.    But all of them did contain the
15   word diacetyl, you agree?
16              MR. CALABRESE:  Objection,
17   mischaracterizes.
18          A.    I believe they all did, yes.
19          Q.  Exhibit --
20              MR. CALABRESE:  Objection, move to
21   strike the answer as not what the document
22   says.
23          Q.    Exhibit 22 I handed you earlier,
24   is this a letter from Susan Pinney to Janice
0089
 1   Dees at Tastemaker dated February 22, 1996?
 2          A.    Yes, it is.
 3          Q.    And this shows that you were
 4   carbon copied on the letter?
 5          A.    Yes.
 6          Q.    As well as Dr. McKay or Dr.
 7   Lockey?
 8          A.    Yes.
 9          Q.    I also see an R. Freyberg?
10          A.    Yes.
11          Q.    Is that an individual at the
12   University?
13          A.    Yes.
14          Q.    And K. Duros, did you ever meet
15   Ms. Duros, general counsel of the company?
16          A.    Yes.
17          Q.    N. Higley, we talked about her.
18   E. Steiger, did you ever meet Ed Steiger in
19   personnel?
20          A.    Yes.
21          Q.    D. Ball, did you ever met --
22   meet Mr. Ball, who's in engineering for
23   Tastemaker?
24          A.    I -- I'm pretty sure I did.  I
0090
 1   can't say specifically yes, yes or no.
 2          Q.    Did you meet Mr. Mike Connor in
 3   personnel?
 4          A.    Yes.
 5          Q.    And the last one is J.
 6   Hockstrasser.  You met Mr. Hockstrasser?
 7          A.    Yes.
 8          Q.    And this would have been a
 9   letter that Dr. Pinney would have sent to
10   Janice Dees, the medical services coordinator
11   at Tastemaker, with a copy to all these
12   individuals?
13          A.    Correct.
14          Q.    And we'll ask her more questions
15   about this particular letter, but in summary
16   what is Dr. Pinney conveying to Tastemaker in
17   this letter?
18          A.    In summary it's an interim --
19   interim report summarizing some of the most
20   recent pulmonary function test results and
21   results of the questionnaires for the medical
22   surveillance work we were provided.
23          Q.    And if you turn back to --
24   there's numbers on these pages -- turn back
0091
 1   to the page that says 6697.
 2          A.    Got it.
 3          Q.    What's shown on this page?  And
 4   there's, just in summary fashion, this and
 5   about the next seven or eight pages can you
 6   summarize what we're looking at here?
 7          A.    This is a summary.  The
 8   questionnaire was designed in such a way to
 9   try to identify a variety of different types
10   of respiratory symptoms and then scoring it
11   based on other factors, severity, and this
12   summarizes those lower respiratory symptom
13   complaints.
14          Q.    And does this also provide the
15   information from the questionnaire on which
16   chemicals -- the chemical questions that we
17   talked about earlier?
18          A.    I don't recall exactly how an
19   individual's test results were flagged for
20   reporting on this.
21          Q.    We're looking at 6697.
22          A.    Oh, I'm sorry.  I was looking at
23   6696.  I'm sorry.
24          Q.    Okay.  6697 where you see in the
0092
 1   middle of the page Q18 burning.  Which
 2   chemicals cause burning eyes, etcetera, then
 3   below that there's a Q18b where used.  See
 4   that?
 5          A.    Yes.
 6          Q.    And is that -- now that you're
 7   looking at -- we're on the same page, can you
 8   tell me what -- what that information was
 9   conveyed, why that was included in the
10   report?
11          A.    This highlights people that had
12   low respiratory -- respiratory symptom
13   complaints, symptoms, significant symptoms,
14   and it summarizes for them the chemicals that
15   were previously listed on each of the
16   individual reports in a group summary form
17   for identification purposes.
18          Q.    So these exhibits we looked at
19   before, 12 through 21, the worker summary
20   reports, this information was put together in
21   a chart that Susan Pinney then included in
22   this letter?
23          A.    That's my understanding, yes.
24          Q.    Do you know what Tastemaker then
0093
 1   did with that information?
 2          A.    No, I do not.
 3              (Exhibits 23-26 were marked for
 4   identification.)
 5          Q.    Let me show you Exhibits 23, 24,
 6   25 and 26.  Could you tell me what these are,
 7   sir?
 8          A.    Well, it looks to be some
 9   longitudinal tracking of lung function for
10   what appears to be a single employee.
11          Q.    And the first one, Exhibit 23,
12   is for Ronald Feldkamp, or Mr. Feldkamp.
13   Were you aware that Ronald Feldkamp had been
14   diagnosed with bronchiolitis obliterans?
15          A.    At this point in time I cannot
16   remember names of the specific, all the
17   specific people that had a diagnosis of BO.
18          Q.    Feldkamp, Shea, Vaske and
19   Gaskins shown on Exhibits 23, 24, 25 and 26,
20   were you aware that all four of those
21   individuals had been diagnosed as having
22   symptoms consistent with bronchiolitis
23   obliterans?
24          A.    Collectively -- collectively as
0094
 1   a group absolute -- yes.
 2          Q.    And what was the purpose of
 3   these four exhibits?
 4          A.    I don't recall seeing these
 5   exhibits.
 6          Q.    You didn't put these together?
 7          A.    I don't know.  They look like
 8   something I would have done though.  I'm
 9   looking at the Feldkamp exhibit, the Exhibit
10   number 23.  Kind of thing that I would do,
11   the graph on the third page that has the
12   smoothing curve through it looks like
13   something I would want to do.  I don't recall
14   having that graphing technique available.
15          Q.  And this was -- the purpose of
16   this document was to show the history of the
17   pulmonary function test results?
18          A.    Yes.  I may have been involved
19   -- this may have been generated by Dr.
20   Pinney's group.  I may have assisted them in
21   designing it, but I can't say for certain
22   that I recall if I produced it or assisted
23   someone else.                        (Exhibit
24   27 was marked for identification.)
0095
 1          Q.    Exhibit 27 -- thank you -- it's
 2   Bates stamped UCMC 05833.  Are these your
 3   notes?
 4          A.    No.
 5          Q.    Do you have any idea whose notes
 6   they are?  Dr. Pinney, perhaps?
 7          A.    I don't know whose notes they
 8   are.  In some respects they look like Dr.
 9   Lockey's but there are a few, few words,
10   usually I can't make out as many of the words
11   when he writes them so I'm not so certain
12   now.  It has the -- the tendency to look like
13   Dr. Lockey's strategy of how he write -- you
14   know, the format, but I don't know for
15   certain who wrote these.
16          Q.    Okay.
17              (Exhibit 28 was marked for
18   identification.)
19              MR. GRUBB:  Could I get to a tape
20   change?
21              MR. CRICK:  Yeah.
22              MR. GRUBB:  At this point we're
23   changing from videotape and DVD number one.
24   The time is 11:21 and 56 seconds.  Off the
0096
 1   record.
 2            (Off the record discussion.)
 3              (Exhibit 29 was marked for
 4   identification.)
 5              MR. GRUBB:  Time's 11:23 and 27
 6   seconds.  We're back on the record with
 7   videotape two.
 8          Q.    I've handed you Exhibit number
 9   28, which is a copy of a NIOSH study on the
10   International Bakers Services plant in South
11   Bend, Indiana.  You've seen that document
12   before?
13          A.    Yes.
14          Q.    And can you tell me what that
15   study was?
16              MR. CALABRESE:  I'm going to
17   object to the foundation at this point.  He's
18   not being called as an expert.
19          A.    It was a NIOSH health hazard
20   evaluation at International Bakers Services
21   looking at a pulmonary problem at that
22   facility in South Bend, Indiana.
23          Q.    Okay.  And Exhibit number 29,
24   it's a document that's Bates stamped UCMC
0097
 1   00619.  It's called Raw Material Sensitivity
 2   List.  This was produced to me by the
 3   University.  Did you see this document
 4   before?
 5          A.    I don't recollect it.  I may,
 6   may not have.
 7          Q.    This shows four columns,
 8   chemical, baker's list, employee sensitivity,
 9   EH&H -- EH&S concern list.  You see that?
10          A.    Yes.
11              MR. CALABRESE:  I'm going to
12   object to the leading.  You're calling the
13   witness on direct.  You're not allowed to
14   lead him.
15          Q.    It's a prefatory question on a
16   document.  I'm okay with that.
17                If you take a look through that
18   chart were you aware that someone had put
19   together a chart comparing chemicals from the
20   International Bakers plant with the chemicals
21   at the Tastemaker plant?
22          A.    No, I was not aware of that.
23          Q.    And were you aware that there
24   were only three chemicals that met all three
0098
 1   criteria being on the Baker's list, the
 2   employee sensitivity list, and the
 3   environmental -- environmental health and the
 4   safety concern list?
 5              MR. CALABRESE:  Object to form,
 6   object to foundation.
 7          A.    I was not aware of that.
 8          Q.    Okay.  And those three chemicals
 9   were acetaldehyde, benzaldehyde and diacetyl?
10              MR. CALABRESE:  Same objections.
11          A.    I see that very clearly.
12          Q.    But you were not shown that?
13              MR. CALABRESE:  Objection.
14          A.    I don't ever recall seeing this,
15   no.
16              (Exhibit 30 was marked for
17   identification.)
18          Q.    Let me show you Exhibit number
19   30.  This is a document that's called
20   Tastemaker Operational Procedures, date
21   August 13, 1992.  Natural & Artificial
22   Diacetyl Spray Drying.  Were you shown this
23   as a part of your work for Tastemaker?
24          A.    I never recall seeing this.
0099
 1          Q.    And if you'd turn to the -- you
 2   see on the first two pages it shows safety
 3   precautions to be followed when working
 4   around diacetyl?
 5          A.    Yes.
 6          Q.    Did Tastemaker tell you that
 7   they were following these procedures working
 8   around diacetyl?
 9          A.    I don't know exactly what
10   procedures were always being used with
11   diacetyl.
12          Q.    Okay.  And if you see the third
13   page and the fourth page you see this is a
14   training sign-in sheet.  Did anyone sit down
15   with you and show you the training procedures
16   that they were using for working around
17   chemicals?
18              MR. CALABRESE:  Objection.
19          A.    Not that I recall.
20          Q.    Let me show you Exhibit number
21   31.            (Exhibit 31 was marked for
22   identification.)
23          Q.    Are you familiar with an
24   organization called the Flavor and Extracts
0100
 1   Manufacturers Association?
 2          A.    Yes.
 3          Q.    And how are you familiar with
 4   them?
 5          A.    Only in terms of reading about
 6   them, being involved at Tastemaker and
 7   hearing, hearing the organizational name.
 8          Q.    Were you aware that the Flavor
 9   and Extract Manufacturer's Association -- you
10   know it's sometimes called FEMA?
11          A.    Yes.
12          Q.    Have you heard that?  Were you
13   aware that FEMA had a database on chemicals
14   that its members could use to research health
15   hazards of those chemicals?
16              MR. CALABRESE:  Objection.
17          A.    I wasn't -- I wasn't aware of
18   what that organization's capabilities were
19   exactly.
20          Q.    Okay.  Let me show you Exhibit
21   31.  Did I give you one?
22              MS. RUWE:  No.
23          Q.    This is a document that was
24   produced to me by -- by Givaudan.  It's
0101
 1   called Flavor or Fragrance Ingredient Data
 2   Sheet for the chemical diacetyl.  And if you
 3   look in the bottom left it says 090285.  Were
 4   you aware that FEMA had published a -- a
 5   flavor or fragrant ingredient data sheet for
 6   diacetyl during the time that you were doing
 7   your work for Tastemaker?
 8          A.    I know the organization
 9   generated, accumulated information.  Exactly
10   what they generated and how much depth and --
11          Q.    You didn't see?
12          A.    -- the quality of it, you know,
13   that's not something that I was -- not
14   something that I was asked to investigate.
15          Q.    Okay.
16          A.    So it doesn't surprise me that
17   they may have put together some MSDS-like
18   sheets for some of their substances, of which
19   there would have been hundreds of thousands.
20          Q.    And included in the second page
21   of this document there's a section for human
22   health effects data.  Known effects of acute
23   exposure, toxicological and pathological
24   data, in -- inhalation.  It says, harmful,
0102
 1   sore throat, coughing, may be absorbed, high
 2   concentrations may cause irritation of
 3   respiratory tract, capable of producing
 4   systemic toxicity.  Do you see that?
 5          A.    I see that, yes.
 6          Q.    Do you recall anyone coming up
 7   to you from Tastemaker and providing you with
 8   this specific information?
 9          A.    Not on this particular chemical.
10   I was -- don't recall Tastemaker coming to us
11   specifically with a list of substances that
12   they felt may require additional
13   investigation, or at least did not come to me
14   with a list of substances that may require
15   some additional investigation.
16          Q.    You made a proposal at the
17   beginning of your work to provide pulmonary
18   toxicology work for Tastemaker.  Did they
19   ever approach you even subsequently about
20   doing that work?
21          A.    No.
22          Q.    Okay.  When did you stop doing
23   work for Tastemaker, approximately?
24          A.    I -- I would have to look at the
0103
 1   notes.  It was about -- in terms of being on
 2   site and collecting data, it may have been a
 3   year a half -- a year and a half, and then I
 4   think there may have -- may have been an
 5   allegation to complete, you know, some type
 6   of report but we were no longer going on
 7   site.  So I don't recall exactly the length
 8   of time before they told -- told me to stop.
 9          Q.    Do you have a -- an inhalation
10   chamber at the University?
11          A.    I had several.
12          Q.    What is an inhalation chamber?
13          A.    I had -- I had designed chambers
14   where I could replicate workplace exposures
15   and expose human -- human subjects to those
16   created atmospheres to look specifically at
17   pulmonary changes that may occur, acute
18   changes, primarily for investigations of
19   asthma.
20          Q.    Tastemaker, did they ever ask
21   you to perform that type of test on any of
22   the chemicals they were using?
23          A.    They never asked me to perform
24   that type of test, no.
0104
 1          Q.    Okay.  But you could have had
 2   they asked?
 3          A.    Depends upon which substance we
 4   would have been asked to generate.  Some of
 5   these -- some of the -- some of the chambers
 6   were developed -- the difficulty is not so
 7   much the chamber, the difficulty is the
 8   ability to generate the substance in a
 9   controlled fashion, to be able to monitor it
10   so that we would know precisely what the
11   levels of exposure are, and those create some
12   technical challenges.  So there may or may
13   not have been that capability to do those
14   types of challenges.
15          Q.    Did anyone from Tastemaker ever
16   ask you to look at the material safety data
17   sheets for the products that it was making
18   and selling to customers?
19          A.    They made it very clear that
20   they were limiting my role as to what service
21   they wanted me to provide them.
22          Q.    And what were you specifically
23   told by them?
24          A.    It changed over time and the
0105
 1   direction wasn't -- it changed over time and
 2   the personnel there were changing and how
 3   much information -- what I was asked to do
 4   and what I was permitted to share was
 5   controlled.
 6          Q.    How so?
 7          A.    It -- it varied with time but it
 8   was -- I had training, experience and
 9   capabilities that went well beyond what I was
10   asked to do.
11          Q.    And you had offered those
12   services?
13          A.    And I had offered those
14   services.  Just in the course of being there
15   and being present for some -- and making just
16   personal observations in the absence of being
17   instructed to investigate and follow up, but
18   being there on a number of occasions there's
19   just that natural human and scientific
20   curiosity to want to go further.  But it was
21   clear that I had a specific role to play and
22   that's where it ended.
23          Q.    So you're an environmental
24   toxicologist who was asked to come in and
0106
 1   simply do breathing tests; is that right?
 2              MR. CALABRESE:  Objection.
 3   Mischaracterizes the testimony.
 4          A.    When I initially came in certain
 5   individuals at Tastemaker had the desire to
 6   try and identify if there was a problem that
 7   was work related, and then if it was work
 8   related could we identify where the problem
 9   was located in the process.  Couple of
10   individuals that come to mind to being highly
11   concerned were John Hockstrasser and Janice
12   Dees.  Dr. Brooks had proposed several
13   strategies for identifying whether or not
14   there was a work related problem and some
15   strategies that may -- that could be used to
16   identify chemical, chemicals and locations or
17   processes that may have been responsible.
18                That information was then -- was
19   -- was shared, some of the ideas, some of the
20   concepts, and then from there time, personnel
21   had changed, emphasis and direction was
22   becoming more focused as to what individual
23   roles would be.
24          Q.    And so John Hockstrasser left
0107
 1   the company, you recall that?
 2          A.    Yes.
 3          Q.    And Janice Dees left the
 4   company?
 5          A.    Yes.
 6          Q.    And the new people that came in
 7   did not have that same emphasis that Mr.
 8   Hockstrasser and Ms. Dees had?
 9              MR. CALABRESE:  Objection.
10   Leading, mischaracterizes.
11          A.    I would -- I would say that John
12   Hockstrasser and Janice Dees were
13   exceptionally qualified to investigate health
14   problems that may be work related,
15   exceptional, and I think that they were
16   trying their best to determine what was going
17   on.
18          Q.    And did the persons who replaced
19   them continue that same energy and concern?
20          A.    In my opinion that level of
21   energy and concern was not the same.
22          Q.    Were you aware that Mr.
23   Hockstrasser filed a whistleblower lawsuit
24   against the company because of his firing?
0108
 1              MR. CALABRESE:  Objection.
 2          A.    I was not aware of that.
 3          Q.    And were you aware that as a
 4   part of this whistleblower lawsuit he alleged
 5   that one of the reasons of his firing was
 6   that Givaudan did not want to comply with his
 7   recommendations concerning bronchiolitis
 8   obliterans at the plant?
 9              MR. CALABRESE:  Objection.
10          A.    I was unaware of that.
11          Q.    Would that be consistent with
12   what your thoughts were when Mr. Hockstrasser
13   left?
14              MR. CALABRESE:  Objection.
15          A.    Absolutely.
16          Q.    Are you writing an article about
17   your work at the Tastemaker plant?
18          A.    No.
19          Q.    Let me -- let me show you
20   Exhibit 32.
21              (Exhibit 32 was marked for
22   identification.)
23          Q.    You never have published an
24   article about your work, have you?
0109
 1          A.    Oh, I may have misunderstood you
 2   about writing an article.  In other words,
 3   may there be a -- a manuscript prepared
 4   specifically with regard to lung function and
 5   -- and bronchiolitis obliterans?
 6          Q.    Right.
 7          A.    That's been kicked around for a
 8   long time with Dr. Brooks -- Dr. Lockey and I
 9   and so we've been kicking it around.  It's
10   really for Dr. Lockey to take the lead on.
11          Q.    Okay.  Let me show you Exhibit
12   32.  This is a document's Bates stamped UCMC
13   05784.  It's called Bronchiolitis Obliterans
14   Associated with Flavoring Agent Exposure by
15   J. Lockey, E. Barth, R. McKay, J. Dahlsten
16   dated 12-20-05.  Is this a draft of something
17   that your group is putting together?
18          A.    It was -- it was a draft.  I
19   don't know the current status of it.
20          Q.    It hasn't been submitted for
21   publication yet?
22          A.    Not that I'm aware of.  Well,
23   no.
24          Q.    But have you been involved in
0110
 1   the writing of this?
 2          A.    Not directly involved in the
 3   writing.  I was -- I'm involved in that
 4   process.  The individuals would talk to me
 5   about various things but Dr. Lockey is the
 6   lead role and then once he gets to a critical
 7   point then I would be taking a -- an
 8   additional role, overseeing it, looking at
 9   it.
10          Q.    Have you read any -- have you
11   read the draft?
12          A.    If I read it I don't recall.
13          Q.    Maybe --
14          A.    Oh, if this was December of '05
15   I don't believe I read this version in
16   December '05.
17          Q.    Is there follow-up versions?
18          A.    Not that I'm aware of, no.
19          Q.    Okay.  Last area and I'm
20   finished.  I mentioned the group FEMA.  Were
21   you ever contacted by anyone at FEMA about
22   your work at Tastemaker?
23          A.    I -- if the two -- there were
24   two individuals that came from Europe.
0111
 1          Q.    Okay.  Now those were with the
 2   parent company, and let me be clear.  The
 3   company, the Flavor and Extract Manufacturers
 4   Association, do you understand that that's a
 5   trade organization that Tastemaker was a
 6   member of?
 7          A.    Yes.
 8          Q.    Okay.  Did you ever meet with
 9   anyone from that association about your work
10   at Tastemaker?
11          A.    Not specifically unless they
12   happened to have been at one of the meetings
13   that were done at Tastemaker.
14          Q.    Okay.
15          A.    And, you know, they're in with a
16   group of other people but no specific type of
17   one on one or a short number people to
18   discuss anything at Tastemaker with them.
19          Q.    Were -- were you aware that FEMA
20   has sponsored two seminars for its members
21   about respiratory protection in the flavor
22   and fragrance workplace?
23          A.    I've -- I've read that something
24   like that has been done.
0112
 1          Q.    Were you aware that the reason
 2   that they conducted those seminars was
 3   because Tastemaker told FEMA about at least
 4   some of what was happening in its plant?
 5              MR. CALABRESE:  Object to form.
 6          A.    I -- I don't know what
 7   Tastemaker may have told them.
 8          Q.    Did anyone ever ask you to
 9   present your findings to FEMA or its members?
10          A.    I was never specifically asked
11   to present anything to either FEMA or its
12   members, no.
13          Q.    Okay.  Were you ever asked by
14   Tastemaker to describe your work and your
15   findings to any of Tastemaker's customers?
16          A.    To their customers, no.
17          Q.    I don't have any other questions
18   then.  You want to trade places?  You have
19   some questions?
20              MR. CALABRESE:  I have questions.
21              MR. CRICK:  Take a short break?
22              MR. CALABRESE:  I'm all -- I'm set
23   to start.
24              MR. CRICK:  I want to use the
0113
 1   restroom.
 2              MR. CALABRESE:  You want to take a
 3   break.  Fair enough.
 4          A.    I could use a quick break, too.
 5              MR. GRUBB:  Off the record.  The
 6   time is 11:47 and 25.
 7              (Break taken.)
 8              MR. GRUBB:  Twelve noon and we're
 9   back on the record.
10   (MR. CRICK CONTINUING)
11          Q.    Dr. McKay, I -- I wanted to ask
12   you one last question or two.  When -- when
13   we broke for -- for the deposition a few
14   minutes ago you asked me if that was all the
15   questions that I was going to ask you out in
16   the hallway.  You remember that?
17          A.    Yes.
18          Q.    You'd suggested that I ask you a
19   question about pressure.  Was there pressure
20   on you during your work for Tastemaker?
21          A.    Yes, there was.
22          Q.    Can you describe that for the
23   jury, please?
24          A.    Well, while working there, as
0114
 1   indicated, I was really limited in what I
 2   could do and say.  I had a role in -- in
 3   designing and carrying out a pulmonary
 4   function surveillance program to try and
 5   identify people who may have changes in lung
 6   function during that time period.  And then I
 7   was asked to -- they had a -- a way of doing
 8   -- a way of doing respirator fit testing,
 9   preexisting method, but it was certainly not
10   the same type of technology or equipment that
11   I had as capability in terms of providing
12   respirators that would fit and -- and level
13   of training.  So I was able to enhance that
14   respirator fit testing and training program.
15   But --
16          Q.    In fact, you criticized their
17   respiratory protection plan; isn't that
18   right?
19          A.    Yes.
20          Q.    And so what happened?  I mean,
21   what -- what else were the pressures that you
22   were dealing with?
23          A.    Well, the pressures were that,
24   you know, I had to -- had to hold back, had
0115
 1   to constantly hold back to be able to
 2   continue to provide a higher level of medical
 3   surveillance that had been there in the past.
 4   So trying to provide a Cadillac pulmonary
 5   function testing surveillance program and
 6   trying to provide a Cadillac level of a
 7   respirator fit testing and -- and worker
 8   training program and use those respirators
 9   properly because the respirator protection
10   was one aspect of trying to prevent anyone
11   else from developing bronchiolitis
12   obliterans.
13                But you have to remember I'm a
14   pulmonary toxicologist and I was not asked to
15   provide insight, pulmonary toxicology
16   insight, on a regular basis to -- to
17   management but I was there on site on many,
18   many occasions providing the testing services
19   and overseeing my staff in the testing
20   services.  In addition to that it was
21   difficult to provide -- it's hard to get a
22   person to want to wear a respirator if they
23   don't feel there's a need to wear the
24   respirator.  And I was not -- I was limited
0116
 1   into the type of language and wording I can
 2   use to describe the potential respiratory
 3   hazard that may exist.  And that made it
 4   difficult with regard to worker training and
 5   reporting on deficiencies and things that we
 6   would find.
 7          Q.    How -- how so?  What were you
 8   limited in being able to say to the workers?
 9          A.    Well, I was --
10              MR. CALABRESE:  Objection to form.
11          A.    -- reminded never to say the
12   word bronchiolitis obliterans to any of the
13   workers, for example.
14          Q.    Who told you that?
15          A.    Glenn Ingraham, who was an
16   industrial hygienist that was brought on
17   later on, and Janice Dees reminded me from
18   the perspective of -- she was saying not from
19   the perspective of don't say it but be -- be
20   careful because if -- if we want to continue
21   to do the type of surveillance activities
22   that we have you -- you -- there's only
23   certain things that can be said.  And I
24   remember giving an opportunity to present --
0117
 1   it was some type of employee day or employee
 2   presentation that was being given, and I
 3   don't have a copy of what I said, or not that
 4   I recollect, but it went through many
 5   versions so as to be something that the
 6   management would be happy with.  And there
 7   was a public relations individual that was
 8   constantly refining the -- the wording that
 9   would be used for this presentation to the
10   employees, and that was frustrating.
11          Q.    Were you -- you were not allowed
12   to tell the employees about bronchiolitis
13   obliterans?
14              MR. CALABRESE:  Objection.
15          A.    Not -- weren't -- wasn't freely
16   permitted to, in my opinion, fully describe
17   the severity of the respiratory condition
18   that could develop and at the -- and since
19   people that had a high interest in trying to
20   figure out what was going on seemed to be
21   extremely stressed there was a -- it was kind
22   of in this position all right, am I doing
23   more good by staying here and being able to
24   have the surveillance program and a strong
0118
 1   respiratory protection program, try and keep
 2   that strong, or if they're dissatisfied with
 3   me then I leave, then what happens when I
 4   leave.
 5          Q.    I deposed Pete Angelo, who was
 6   the Givaudan's salesman to ConAgra in this
 7   case.  I asked him if he knew that there had
 8   been individuals at his plant -- and this was
 9   just this year, in 2006 -- I asked him if he
10   was aware that individuals at his plant had
11   been diagnosed with bronchiolitis obliterans
12   and he had had the ConAgra account for years
13   and he, as of 2006, had never heard that
14   anyone at the plant had ever been sick
15   before.  Is that consistent with what
16   you're -- you were seeing?
17              MR. CALABRESE:  Objection.  Object
18   to form, object to foundation.  Move to
19   strike.
20          A.    It was consistent that I was not
21   to freely share information with other
22   employees.
23          Q.    Thank you.  Was there anything
24   else on the issue of pressure that was put on
0119
 1   you at the company?  You were -- the way I
 2   see it is that you were a person who was a
 3   pulmonary toxicologist who had great
 4   experience and expertise in seeing that there
 5   were people that were sick at the plant but
 6   were not being allowed to actually
 7   investigate it.  Is that accurate?
 8              MR. CALABRESE:  Objection.
 9          A.    I -- I -- it's a somewhat fair
10   characterization.  I was really being
11   limited.  At the same time there was, you
12   know, there were great changes and
13   improvements that were being made and
14   certainly didn't want to do anything that
15   would stop that.  Certain amount of resources
16   and money available and I know a lot of money
17   went into ventilation changes and, you know,
18   what -- if you -- if you're going to stay
19   operating and -- and you only have a hundred
20   dollars to work with and it costs $90 to do a
21   lot of the ventilation changes, which clearly
22   were needed, and it's going to cost $50 to do
23   some retrospective work to figure out well,
24   where was the problem?  It's like, well, wait
0120
 1   a second, that's not enough dollars so let's
 2   keep the movement going in the areas for the
 3   surveillance and cutting down and reducing
 4   exposures so we don't see any more problems
 5   develop.  So -- but it was the most frus -- I
 6   have never -- sorry -- never in my life -- I
 7   just need a minute.
 8          Q.    Okay.  No more questions.
 9          A.    Well, I'd like to answer that --
10          Q.  Okay.
11          A.  I just -- I just need a minute.
12          Q.    Okay.  Oh, okay.
13          A.    I need more than a minute.
14          Q.    You want to take a break for a
15   second?
16          A.    No, no, no.
17          Q.    Okay.  We got -- we got time.
18          A.    I've never felt so much on a --
19   on a cliff where it's like how can you help
20   people, what do you need to do to help
21   people, and involved, you know, the science,
22   the ethics and -- and everything in between.
23   But it's the most -- every day it's like,
24   God, we could do so much more.  It's
0121
 1   frustrating.
 2          Q.    Because they wouldn't let you do
 3   it?
 4              MR. CALABRESE:  Objection.
 5          A.    I don't know what the reason --
 6   I don't know what the reasons were.  Just --
 7   I never encountered anything -- you know, we
 8   get involved in studies all the time with
 9   different lung diseases and problems and
10   patients, and this is just different.  This
11   was, you know, we saw people, we saw things
12   happening, saw some people trying to make
13   strides to improve things and you were trying
14   to stay involved without getting kicked out.
15   It was tough and, you know, routinely when I
16   do respirator fit testing we find problems
17   with -- because you always find problems with
18   respirators.  There's -- they wear down, they
19   break, they get -- stuff happens, and we
20   write letters, I do it all the time, write a
21   letter to the employer, say this is the
22   problem with this employee's respirator, and
23   this problem, this problem, this problem.
24   The idea there is you identify the problems
0122
 1   so the companies can take corrective action.
 2   But, you know, when you're told don't put
 3   this in writing, you know, don't -- tell me
 4   about it but don't put it in writing.  It was
 5   just different.  It was a different way of
 6   operating, you know.
 7          Q.    Okay.  Thank you.  No more
 8   questions.
 9                       CROSS-EXAMINATION
10   BY MR. CALABRESE:
11          Q.    Good afternoon, Doctor.  I'm
12   Phil Calabrese.  We met earlier this morning
13   off the record.  I just wanted to start by
14   following up on this line of conversation.
15                Did you tell Dr. Lockey about
16   your frustration with this project?
17          A.    Everybody was aware of the
18   frustrations during the time period.  You
19   know, Dr. Lockey was a great solidifying
20   force who had better management skills than I
21   did to be able to focus the team on, you
22   know, this is what we need to do, this is how
23   we can identify cases and so on.  So he was
24   excellent in terms of, I think, keeping us
0123
 1   involved for a short period -- it was a
 2   relatively short period of time, keeping us
 3   there so that -- so we can provide a role in
 4   the service.
 5          Q.    Did you tell him the specific
 6   concerns that you just volunteered to Mr.
 7   Crick?
 8          A.    About just being frustrated
 9   and -- and things?
10          Q.    Well, and the specific
11   statements about that you had gone into in
12   your last answer?
13          A.    What specific statements?
14          Q.    Well, in terms of not being able
15   to put things in writing, talk to employees,
16   etcetera.  Were those things that you
17   communicated to Dr. Lockey?
18          A.    Well, I think he was probably --
19   I think, I don't -- I don't recall, I think
20   that he was aware that certain things
21   couldn't -- couldn't be said when talking
22   with other employees at the facility.
23          Q.    But, as you sit here today, you
24   don't recall a specific conversation with Dr.
0124
 1   Lockey about that concern?
 2          A.    I don't recall a specific
 3   conversation, no.
 4          Q.    Okay.  How about Dr. Brooks?
 5   Did you ever have those discussions with Dr.
 6   Brooks?
 7          A.    He was earlier on so Dr. Brooks
 8   was -- our conversations were limited.
 9   Once -- you know, we had the meeting at
10   Tastemaker, it was me and Dr. Brooks and --
11   and maybe some other people, I don't know,
12   but he -- he, Dr. Brooks wasn't there during
13   the time the surveillance program being
14   ongoing so we had touched base periodically
15   here and there, but that was a lot different.
16          Q.    Well, I appreciate that Dr.
17   Brooks was earlier and he wasn't there and
18   you said you touched base periodically.  In
19   any of those occasions did you raise these
20   concerns with Dr. Brooks?
21          A.    No, no.  I don't think so.
22          Q.    How about with John
23   Hockstrasser?
24          A.    I didn't work that much with
0125
 1   John Hockstrasser.  When I was there I was,
 2   you know, my role was pretty defined, this is
 3   what you will do.  And I had occasion to talk
 4   to John but, you know, I can't recall how
 5   long he was there.  He was only -- I don't --
 6   I don't recall.  He was maybe half the time
 7   that I was there.
 8          Q.    You told us earlier that he was
 9   an individual who you had a great deal of
10   respect for, and that he was greatly
11   concerned about the health and safety of the
12   employees.  You never went to him with these
13   concerns?
14          A.    He was aware of the concerns.
15   As I mentioned, I had a very -- I had a very
16   specific role, go in there, do these tests,
17   and I was not -- they had a toxicologist on
18   board and I was not asked to provide insight
19   or assist or help that toxicologist and I
20   wasn't impressed by their toxicological work.
21   I'm sure I mentioned that to some -- some
22   people.  Janice Dees is the one that I had
23   the most conversation with.  She was the --
24   you know, I reported primarily to Janice Dees
0126
 1   and I shared with her many of my concerns.
 2          Q.    You never shared them with John
 3   Hockstrasser?
 4          A.    No, I -- no.  Not that I can
 5   recall.  Janice Dees is the one who I was
 6   always reporting to.
 7          Q.    Now you just said you were not
 8   impressed by the toxicological work that was
 9   being done.  What toxological (sic) work are
10   you referring to?
11          A.    Well, I remember they just
12   didn't get the concept that something that
13   you could eat you can't breathe.  They just
14   didn't get that idea.  Even the physicians
15   from Switzerland, or from Europe, whoever
16   they were, just -- just didn't get it.  It
17   just felt like you had to beat them over the
18   head with a hammer in order for them to
19   understand that things you breathe, chemicals
20   you breathe, it's going to affect -- has the
21   potential to affect the -- the fact that you
22   can eat it is a completely different
23   situation.  And they just didn't get it early
24   on, or at least they didn't admit, or I don't
0127
 1   know if they didn't understand it, didn't
 2   want to recognize it, but there was a real --
 3   I would have hired a hell of a lot more
 4   people to figure out what was going on there
 5   if -- if -- they needed more, more and, you
 6   know, why they didn't hire more people, more
 7   health and safety people, and get in some
 8   pulmonary toxicologists and get a -- a team
 9   of -- of health and safety people
10   collectively together could have been done.
11          Q.    You said they didn't get this
12   concept early on.  Did they get it as the
13   project progressed over time?
14          A.    I'm not sure because management
15   -- management was changing, personnel were
16   changing and the people that did get it,
17   Janice Dees, John Hockstrasser, didn't stay
18   on board.  The ones that, you know, that --
19   who -- people who came in were -- were not --
20   not on -- they weren't at the same level.  So
21   they had some good people there but they were
22   gone.
23          Q.    Did you present -- strike that.
24                Did you ever make a
0128
 1   recommendation to anyone that more people be
 2   brought in to the investigation?
 3          A.    I know it had been discussed
 4   between myself and Janice Dees about what --
 5   what other things could be done.
 6          Q.    Did you discuss it with Dr.
 7   Lockey?
 8          A.    You know, doctor -- we had
 9   discussions, I couldn't tell you exactly what
10   we did.  He, you know, he recognized the
11   importance of -- of don't -- to -- to help
12   the employees, this is what you were asked to
13   do.  Let's make sure we can fulfill the need
14   for getting this medical surveillance program
15   on.  So he was -- he was great at -- he was
16   great at keeping me -- keeping me on,
17   otherwise I would have walked away because it
18   was so frustrating.  And he kept me focused
19   on participating and staying so that I can do
20   the things that -- that I was doing.  And I
21   can't say enough about Dr. Lockey in terms of
22   trying to keep things moving forward.
23          Q.    Have you read the transcript of
24   Dr. Lockey's deposition testimony in this
0129
 1   case from 2004?
 2          A.    No, no.
 3          Q.    Are you aware that Dr. Lockey
 4   has a different opinion about his role at the
 5   Tastemaker investigation than what you're
 6   describing?
 7          A.    A different opinion as --
 8          Q.    A different characterization?
 9          A.    I -- I don't know what he said.
10   I don't know what his characterization was.
11   My impression is his role there was that when
12   people were identified to provide follow-up
13   services on the identified individuals for
14   them.
15          Q.    What were the specific
16   toxicology items that you were referring to
17   earlier?  You said you weren't impressed with
18   the -- the work that was going on?
19          A.    Well, I don't know all the
20   details of the work that was going on but
21   it's just that the impression I had from the
22   individuals that they were talking, you know,
23   the terms I remember, well, these are at low
24   -- low airborne concentrations, these are
0130
 1   things that you can eat.  I didn't see --
 2   they weren't asking for any -- my help, for
 3   example, or I didn't see them bring on board
 4   other people specifically looking at
 5   inhalation hazards of the materials that were
 6   there.
 7          Q.    You don't know --
 8          A.    I just wasn't impressed with
 9   them.  I can't tell you today sitting back
10   why, right now, why that was, but I just
11   wasn't impressed.
12          Q.    You don't know one way or the
13   other whether that work was going on?
14          A.    I don't know how much of that
15   work was going on.
16          Q.    You just know that you weren't
17   involved in it?
18          A.    I know I wasn't involved in it,
19   right.
20          Q.    And other than that there's no
21   specific action items that, as you sit here
22   today, you wanted to see done that weren't?
23              MR. CRICK:  Just as a objection.
24   It's my understanding that all the University
0131
 1   witnesses were under a consultation agreement
 2   with your company and they're your witnesses
 3   and I'm not allowed to meet with them
 4   beforehand primarily because they're under a
 5   consultation agreement with you.  And, as
 6   such, I would object to your leading your own
 7   -- your own consultants.  I'm objecting to
 8   the form of the questions, to all your
 9   questions.  You absolutely cannot lead your
10   own consultant.
11          Q.    So you're not -- you're not
12   under consultation agreement today with
13   Givaudan, are you?
14          A.    No.
15              MR. CALABRESE:  I believe he's
16   your witness, Mr. Crick.
17              MR. CRICK:  This is just a
18   subpoena of your consultants.  I'm objecting
19   to your leading.
20              MR. CALABRESE:  I'm sorry --
21              MR. CRICK:  And I object to all
22   your leading questions.
23              MR. CALABRESE:  That's mutual.
24              MS. RUWE:  And I was just going to
0132
 1   say for the record as far as meeting with
 2   anyone before any meetings or like nothing
 3   had to do with Givaudan.
 4              MR. CRICK:  I don't understand
 5   what any of that meant, but go ahead, ask
 6   your questions.
 7              MS. RUWE:  Well, it's my
 8   understanding that this subpoena was directed
 9   by you.
10              MR. CRICK:  Yes, absolutely,
11   because we're trying to find out what's going
12   on here.
13              MS. RUWE:  Okay --
14              MR. CRICK:  I'm just talking about
15   legal objections to questions.
16              MS. RUWE:  I understand that but I
17   just want to make clear as to whose witness,
18   to what --
19              MR. CRICK:  That's for the Court
20   to decide.
21              MS. RUWE:  I understand that.
22              MR. CRICK:  And I'm objecting to
23   his questions of leading.
24              MR. CALABRESE:  He's not my
0133
 1   witness.
 2              MR. CRICK:  Go ahead.
 3              MR. CALABRESE:  To the extent you
 4   want to argue he is, I'm going to ask for
 5   permission to treat him as hostile based on
 6   his testimony.
 7              MR. CRICK:  I'm not going to argue
 8   with you.  I'm just objecting.
 9              MR. CALABRESE:  Court Reporter,
10   would you please read back the last question?
11             (Record read by Reporter.)
12          A.    Oh, I would have liked to have
13   seen a research investigation of -- I would
14   have liked to have seen a full blown
15   epidemiological study on -- to be conducted,
16   not just a medical surveillance project but a
17   epidemiological investigation bringing in
18   outside people, NIOSH, others, because there
19   clearly was a complex situation.  From the
20   information that I had available to me it
21   appeared to be very complex and others would
22   have been needed.  And -- and I would have
23   even considered doing a epidemiologic --
24   epidemiologic investigation on former
0134
 1   workers, people who were no longer working
 2   there, to see what was going on with former,
 3   former workers.
 4          Q.    Well, a couple items there I
 5   want to follow up on.  One, you never
 6   suggested to anyone that NIOSH be called; is
 7   that right?
 8          A.    I'm sure I talked to Janice Dees
 9   about bringing in, you know, trying to
10   expand -- you know, we're having -- I'm
11   having conversations with her about expanding
12   the study and -- and it was -- it was
13   narrowing in scope, so it clearly wasn't
14   expanding.  And people who are working with
15   Janice always felt, my impression was that,
16   well, she may not even -- she may be gone and
17   John Hockstrasser may be gone and to -- so
18   you have conversations about expansion and
19   you can say, well, expansion's unlikely when
20   things are being more limited.
21          Q.    Was there any legal requirement
22   to involve NIOSH in the investigation of the
23   sort that you were involved in at Tastemaker?
24          A.    I don't understand -- I don't --
0135
 1   I don't know what the legal requirements or
 2   what a company's required to do.  That's --
 3   that's outside of my expertise.  I mean, I'm
 4   aware what needs to be done from a
 5   respiratory protection issues and pulmonary
 6   function testing issues, but what they need
 7   to forward to governmental agencies with
 8   regard to reporting of injuries and illnesses
 9   is something that I don't study or keep --
10   keep track of.
11          Q.    And based on your involvement in
12   the respirator program, the fit testing,
13   pulmonary function involvement you had, was
14   there any -- anything about your involvement
15   there that you felt rose to the level on
16   those issues --
17          A.    I'm sorry --
18          Q.    -- to be involved?
19          A.    -- I didn't hear all that.
20          Q.    I'm sorry.  With respect to the
21   involvement you had on the fit testing and
22   the pulmonary function tests and the
23   respirator program was there anything about
24   that that you thought warranted NIOSH's
0136
 1   involvement?
 2          A.    On that part that warranted
 3   NIOSH's part, no, no.  I didn't do the entire
 4   respirator program.  I was doing -- I was
 5   only doing -- overseeing the fit testing
 6   during that period of time and the worker
 7   training but I was not involved in respirator
 8   selection, cartridge change out and other
 9   aspects of the respiratory protection
10   program.
11          Q.    On the epidemiology side that
12   was something that Janice Dees and Sue Pinney
13   talked about, wasn't it?
14              MR. CRICK:  I object.  That's too
15   broad.
16          A.    If you're asking if they talked
17   to me about those things, yes.
18          Q.    And you told us earlier, and
19   I'll have to come back later, you told us
20   earlier that there were a number of
21   challenges in identifying or matching up the
22   specific work areas with the incidence of
23   respiratory disease.  Is that something that
24   makes it difficult to do an epidemiological
0137
 1   study?
 2          A.    Epidemiologic studies are very
 3   difficult to do.  They're not easy to do.
 4   And it would be very hard to do at that type
 5   of facility because it had so many different
 6   substances and so many different locations it
 7   would not be easy.
 8          Q.    In terms of --
 9          A.    The --
10          Q.    I'm sorry, go ahead.
11          A.    And -- and I think that's, you
12   know, that was, I think, part of the
13   frustration because it was -- it was such a
14   complex situation and you've got limited
15   resources, both Tastemaker and -- and what
16   they could do and what I could do and what
17   others could do, and that's what made it
18   difficult.  It's like, well, there's only so
19   much that can be done right now and it would
20   be very hard to do an epide -- epidemiologic
21   study there.  No doubt about it.  Even
22   retrospectively now it would be very
23   difficult to do.
24          Q.    And the complexity of the
0138
 1   situation and the environment that's there,
 2   that's not the fault of anyone at Tastemaker,
 3   is it?
 4              MR. CRICK:  Object to the form.
 5          Q.    That's just the nature of that
 6   particular work environment?
 7              MR. CRICK:  Objection, objection.
 8          A.    Are you saying -- what are you
 9   --
10          Q.    Well, you just -- you just
11   talked about the number of chemicals and the
12   different processes at the plant, etcetera.
13   That, I mean, that's just the nature -- is
14   that just the nature of that work site?
15              MR. CRICK:  Because they use a lot
16   of chemicals they don't have to be
17   precautious?
18              MR. CALABRESE:  Move to strike.
19   Mischaracterizes.
20              MR. CRICK:  I'm objecting to the
21   form.
22          A.    I don't know what you're asking.
23   I don't understand the question.  If you're
24   -- if --
0139
 1          Q.    You just told me that there was
 2   complexity at the -- the work site that
 3   involved, among other things, the number of
 4   chemicals that were worked with.
 5          A.    Correct.  There were a large
 6   number of chemicals there and --
 7          Q.    And that -- that's just an
 8   inherent feature of that work environment,
 9   right?  That's all I'm asking.
10          A.    That was something that was
11   present in that work environment.  Lots of
12   different chemicals were present, so if I was
13   going to a facility that was manufacturing
14   one chemical, benzene or toluene or xylene,
15   it would be much easier to investigate what
16   are the health effects with that chemical or
17   a couple chemicals, what type of exposures do
18   we have, to categorize the exposures, what
19   type of personal protective equipment would
20   be needed for those exposures.  In this case
21   a lot of the tasks were rather -- well,
22   they -- there are many different chemicals
23   and a lot of different tasks.  They weren't
24   all -- there wasn't like a continuous batch
0140
 1   running operation where you can get good
 2   industrial hygiene monitoring to evaluate it.
 3   So it would be a challenge.  Definitely would
 4   be a challenge, no doubt.
 5          Q.    In terms of the limited
 6   resources you raised, and that's just the
 7   human condition, isn't it?
 8              MR. CRICK:  I'm not sure what that
 9   even means.  Object to the form.
10          A.    I -- I don't know what you are
11   referring to either.
12          Q.    No one has unlimited resources,
13   right?
14          A.    Nobody -- nobody has unlimited
15   resources that I'm aware of.
16          Q.    Do you disagree with the
17   decision that Tastemaker made to improve the
18   respirator program, improve the ventilation,
19   and make some of the other improvements that
20   you testified about earlier instead of doing
21   some of these other items?
22          A.    I didn't say that.  I think that
23   they made a large number of improvements
24   certainly during the time we were there.
0141
 1   There's no doubt about that.  And I know that
 2   they spent a lot of money to improve the
 3   conditions, and that should be recognized.
 4   You just felt frustrated that we need to do
 5   more.
 6          Q.    Were there particular
 7   individuals at Tastemaker who were the source
 8   of that frustration?
 9          A.    The only one that -- that I
10   worked directly with that really seemed to
11   make my job harder was Glenn Ingraham.  Just
12   a very controlling -- he was the one that,
13   for example, did not want a lot of written
14   materials with regard to the findings of the
15   respirator program.  I had more interaction
16   with him; I had more interaction with him and
17   -- with Janice Dees and him.  Janice was
18   someone that I felt that I could open up to
19   and talk about and share things with, and
20   Glenn was much more controlling and -- and
21   didn't want to hear some words being said,
22   really limited what I would do and say.
23          Q.    And he came in a little bit
24   later after your project started?  He wasn't
0142
 1   around at the beginning?
 2          A.    He wasn't around at the
 3   beginning.  He came in, I'm going to say,
 4   around midway.
 5          Q.    You didn't experience that
 6   concern about putting things in writing
 7   overtly prior to going, joining the company
 8   though?
 9          A.    That's a good question.  I can't
10   -- I can't recall.  The only -- the time -- I
11   don't know if Glenn was on board at the time
12   I was asked to give that seminar to the
13   workers when they had the workers get
14   together.  I don't know if he was there.
15   That -- that would be one time that I
16   recollect where I was being asked to modify
17   and modify and modify this presentation
18   material, and that's the one that stands out
19   at this time.
20          Q.    At that employee meeting --
21   well, let me ask you first.  You don't
22   remember the date of that?
23          A.    No, no.
24          Q.    Okay.  Who else was involved in
0143
 1   presenting materials to employees at that
 2   meeting, or information, I should say, not
 3   materials?
 4          A.    I don't remember the names.
 5   There were other people that presented.  I'd
 6   only be guessing at this point so I don't
 7   know.  I'm sure there's an agenda some place.
 8          Q.    Was Dr. Lockey among the group
 9   presenting?
10          A.    No.  He wasn't asked to.  For
11   reasons I don't understand I was asked to
12   present that and I don't know why.  Maybe
13   it's because I had contact with more of the
14   employees from doing -- being there more
15   frequently with the PFTs and the fit testing,
16   so I don't know what the basis of the reason
17   for that was.  I actually welcomed the
18   opportunity to do it.  I mean, it was great,
19   I wanted that opportunity, but I did get
20   frustrated with how I had to keep changing it
21   so --
22          Q.    Notwithstanding the changes were
23   you still able to deliver messages about the
24   severity of the potential health hazard?
0144
 1          A.    The -- the overall information
 2   was conveyed.  It wasn't as -- wasn't in a
 3   way that I would have approached it.  It kind
 4   of reminds me a little bit of giving lectures
 5   on the hazards of cigarette smoking.  There
 6   are -- different approaches work for
 7   different people.  Some people you don't want
 8   to really harp on, you know, the effects, the
 9   pathological effects of cigarette smoking,
10   and for some -- some people just mentioning
11   it you may develop emphysema or lung cancer
12   just may not have that much of impact.  Some
13   people may need more shock, you know, see
14   pictures of the damage in order to respond.
15   And I think, you know, I kind of felt that a
16   combination of different approaches was
17   necessary to really get everyone to
18   understand the concern and the issue.
19              There are some people that didn't
20   seem to think that there was a problem and it
21   would -- certainly really go into the details
22   about bronchiolitis obliterans I think would
23   have helped.
24          Q.    But you were able to get out the
0145
 1   message that there's a potential problem?
 2          A.    The message got out, yes.
 3          Q.    And you were only involved in
 4   the single employee presentation?  I mean,
 5   it's just this one occasion?
 6          A.    Yeah, that's my recollection,
 7   yes.
 8          Q.    You don't know whether there
 9   were subsequent meetings or communications of
10   the same type?
11          A.    No, I don't.
12          Q.    Do you know when the last case
13   of bronchiolitis obliterans was diagnosed at
14   the Cincinnati plant?
15          A.    No, I do not.
16          Q.    You don't have any information
17   one way or the other, then, whether the cases
18   have stopped or are ongoing?
19              MR. CRICK:  If what?
20              MR. CALABRESE:  If the cases have
21   stopped or are ongoing.
22              MR. CRICK:  I don't understand
23   what you mean.  That people don't have it
24   anymore?  What is -- I don't understand the
0146
 1   question.
 2              MR. CALABRESE:  New cases.
 3              MR. CRICK:  Can you ask your
 4   question again, rephrase it?
 5              MR. CALABRESE:  Yeah, I will.  Can
 6   you just read it back so I can -- I'll
 7   rephrase it.
 8              MR. CRICK:  He said he doesn't
 9   know if the cases are ongoing.
10              MR. CALABRESE:  I don't think
11   that's fair, plaintiff --
12           (Record read by Reporter.)
13          Q.    I'll ask my question, let me --
14   well, strike that and let me ask this
15   question.  You don't have any information one
16   way OR another whether there are new cases of
17   bronchiolitis obliterans since you stopped
18   working for Tastemaker?
19          A.    I wouldn't be aware of it
20   because I don't -- I'm not involved, I'm not
21   there, I'm not involved so I wouldn't know if
22   there were or were not any new cases.
23          Q.    Okay.  I want to follow up on
24   some of the documents that Mr. Crick was
0147
 1   asking you about earlier.  If you have
 2   Exhibit 31 in front of you, which was the
 3   flavor or fragrance information page sheet.
 4          A.    Got it.
 5          Q.    Okay.  I believe you told us
 6   earlier that you knew that Tastemaker had
 7   information of this general variety but not
 8   this specific information.  Did you ever ask
 9   to see this kind of specific data on any of
10   the chemicals that you were coming up with in
11   your investigation?
12              MR. CRICK:  I have to object to
13   the preface.  I don't really understand what
14   it is you are speaking about.  I don't know
15   that I object to the question.  I -- I guess
16   I have to object to the form though.
17          A.    I don't recall exactly because
18   my role changed.  It went from presenting
19   some ideas when I was there, ideas and what
20   could be done, to eventually just
21   implementing a surveillance program.  So I
22   don't know, you know, I was there a long time
23   and met with a variety of people and, you
24   know, may have seen, may have seen
0148
 1   bookshelves with stacks of MSDSes.  I don't
 2   remember.  So the -- the roles changed, so --
 3          Q.    And regardless of what your role
 4   was did you ever ask to see specific
 5   information of this sort, either from the
 6   industry or an MSDS, with respect to any
 7   specific chemical used at Tastemaker?
 8          A.    I didn't ask for it.  I didn't
 9   ask for any -- I don't believe I asked to see
10   any MSDSes because it wasn't directly related
11   to what I was ultimately asked to do for
12   them.
13          Q.    Okay.  And you don't know what
14   the quality of the information contained on
15   this FFIDS marked as Exhibit 31 is?
16          A.    No, I've not evaluated this
17   particular document in terms of its -- of its
18   accuracy or whether or not it has omissions
19   or if it's consistent with the literature at
20   the time so, no, I didn't perform that type
21   of an evaluation.
22          Q.    And even today you haven't done
23   that?
24          A.    No.
0149
 1          Q.    On page two of this document Mr.
 2   Crick asked you about some of the information
 3   specifically there, some of the language
 4   about inhalation effects?
 5          A.    Yes.
 6          Q.    Would you please explain for me
 7   what systemic toxicity means?
 8          A.    It's a -- it's a general term
 9   indicating that it could be toxic to -- to
10   bodily organs.
11          Q.    Is irritation a form of
12   toxicity?
13          A.    Yes.
14          Q.    You don't have any other
15   information between how the information
16   contained on this document is incorporated in
17   a material data safety sheet?
18          A.    I don't know how this
19   information was specifically taking -- taken
20   to go like on a Tastemaker MSDS?
21          Q.    Right.
22          A.    No, I don't know, I wasn't
23   involved in that process.  I wasn't involved
24   in any way of evaluating quality or
0150
 1   toxicology information either for reviewing
 2   or preparing -- reviewing incoming MSDSes or
 3   preparing MSDSes to go out with Tastemaker
 4   products.
 5          Q.    Okay.  Let me turn to Exhibit 30
 6   then, the Tastemaker operational procedures
 7   from the spray drying department.  Do you
 8   have that in front of you?
 9          A.    Yes, I do.
10          Q.    You haven't seen this document
11   before today?
12          A.    I -- I don't believe I have ever
13   seen it, no.
14          Q.    You don't know whether it
15   applies to diacetyl that's a raw material or
16   to finished products?
17          A.    I assume this had to deal -- I'm
18   assuming here, so I don't know.  I've not
19   seen this document before today.  I'm
20   assuming this is supposed to be a description
21   of safety procedures on how to safely operate
22   spray drying when diacetyl is being used.
23          Q.    You don't know what the
24   implementation of this procedure was?
0151
 1          A.    In terms of what was actually
 2   done outside, no.
 3          Q.    You don't know what the actual
 4   workplace practice was when handling
 5   diacetyl?
 6          A.    No.  I was not there to evaluate
 7   workplace practices.
 8          Q.    You don't know what training was
 9   done on this particular policy?
10          A.    No, I do not.
11          Q.    Okay.  I want to take a moment
12   and apologize in advance for this but to run
13   through Exhibit 12 through, I believe it was
14   20 -- 21, 21.
15              MR. CRICK:  I'll just stipulate
16   that during the trial you can stand up and
17   read from them.  You don't have to waste
18   everybody's time doing this right now.
19          Q.    Okay.  I still have a few
20   additional follow-up questions but that will
21   save us some time.
22              MR. CRICK:  Okay.
23          A.  Am I -- am I looking for
24   something?
0152
 1          Q.    I was going to ask some
 2   questions now on Exhibits 12 through 21,
 3   those worker summary reports --
 4          A.    Okay.
 5          Q.    -- that you had some questions
 6   about earlier.
 7           A.   I found it.
 8          Q.    You have those?
 9          A.    Yeah.
10          Q.    Okay.  On Exhibit 13 Mr. Crick
11   asked you whether Mr. Feldkamp, whose summary
12   this is, met criteria A and B.  If I
13   understand this correctly there's two
14   different ways, well, there's multiple ways
15   to meet criteria A and B; is that -- am I
16   following this?
17          A.    Yeah, the -- in other words,
18   there's a fair amount of variability in lung
19   function testing and what we were doing here
20   in this approach was to compare the person's
21   current test, one of these reports would be
22   generated after each visit, so there -- there
23   are no clearly defined ways to identify what
24   is a true change in lung function, even
0153
 1   today.  It's still work in progress.  There's
 2   no gold standard.  So in addition to -- one
 3   of the things that was added here is in
 4   addition to looking at the person's current
 5   test to their previous test we were always
 6   taking the approach of looking at the current
 7   test to their previous best test and applying
 8   criteria A and B towards that.  The reason
 9   being there is in some cases I think we were
10   doing this on a quarterly -- we would do this
11   on a quarterly basis and the variability of
12   the test can -- often can be greater than
13   what is recognized as -- can hide or mask the
14   change in lung function, so we were looking
15   at it in two ways.
16          Q.    And is the effect of that to
17   identify more people who need follow-up?
18          A.    The idea of this is not to
19   definitively identify people with disease,
20   and certainly not to definitively identify
21   people with workplace disease, but rather to
22   flag people who would need further
23   investigation and follow-up.
24          Q.    And -- and the effect --
0154
 1          A.    So could be -- it's -- you
 2   design it to be conservative.  You want --
 3   you don't want to miss people, you want to
 4   catch people and then follow up on them, and
 5   then they'll follow up, hopefully be able to
 6   say well, this is not related to work, it's
 7   work smoking or something else.
 8          Q.    And -- and this was designed to
 9   be conservative?
10          A.    This -- we -- we had hoped that
11   it would be designed to identify any persons
12   that we would be concerned, be concerned
13   about, yes.
14          Q.    On Exhibit 14, just wanted to
15   ask you to look at Exhibit 14 and Exhibit 19
16   side by side.
17          A.    Okay.
18          Q.    My question is if these appear
19   to be the same employee?  It's hard to know
20   without the name, but --
21          A.    Yeah, it's hard to know without
22   the name but they very likely are.  All --
23          Q.    Let's look at Exhibit 18.
24          A.    Okay.
0155
 1          Q.    I'm sorry.  I don't have --
 2   should have said Exhibit 16.  You have 16 in
 3   front of you?
 4          A.    Yes, I do.
 5          Q.    Okay.  Is diacetyl one of the
 6   chemicals listed on Exhibit 16 in response to
 7   question 18 A?
 8          A.    No, it's not.
 9          Q.    Mr. Crick asked you whether
10   butter flavoring was manufactured in the
11   liquids and spray dry departments.  Were
12   there hundreds of other products manufactured
13   in those departments?
14          A.    To my knowledge there -- yes.
15          Q.    They manufactured things in
16   liquids and spray dry other than butter
17   flavoring?
18          A.    My understanding was they made a
19   lot of different wide variety of products
20   during those times, yes.
21          Q.    And although Mr. Crick has
22   marked here a -- a small number of worker
23   summary reports there were hundreds of
24   employees that these were prepared for?
0156
 1          A.    Yeah, they were prepared for all
 2   employees, yes.
 3          Q.    Let me ask you to look at
 4   Exhibit 20.  All of the A, B, C criteria on
 5   Exhibit 20 are -- are nos; is that right?
 6          A.    That's correct.
 7          Q.    We discussed briefly earlier
 8   the -- that the A, B, C criteria that were
 9   listed on these exhibits, 12 through 20 or
10   21, were a slightly different order than you
11   were used to seeing.  Was that also the case
12   in the report that we went through, which I
13   believe was Exhibit, is it 7?  I think we
14   looked at the A, B, C criteria, Exhibit 7, on
15   page five.  And the A, B, C criteria on page
16   five are in a different order than on the
17   Exhibits we -- 12 through 21 that we were
18   just looking at?
19          A.    Yeah.
20          Q.    And if you flip back to some of
21   the later pages of Exhibit 7, for example,
22   page 5581, they're also in a different order
23   there, right?
24          A.    I -- I don't know.  I'd have to
0157
 1   match it up.
 2          Q.    I mean -- I mean, that's what
 3   I'd like to do.  Just take a moment and --
 4   and do that.
 5          A.    Well, what we'd need to do here,
 6   the easiest way to do this is look for
 7   someone that has, on page -- that page 5581
 8   look at people who, where it says in the last
 9   column, retest -- retest criteria met, try
10   and find a B, someone has just a B, which
11   there's several of them.
12          Q.    The second person?
13          A.    Like the second person, and then
14   match that up with the other report to see if
15   that was an A or a B.
16          Q.    Okay.  Then we'd need to
17   match -- we just need to be clear if we were
18   doing that which order of the criteria we
19   were looking at?  In other words, if we cared
20   whether someone was an A as opposed to a B we
21   need to make sure we were using sort of the
22   same -- they might be B on Exhibit 12 but A
23   on Exhibit 7, page 5 just because they're
24   ordered differently?
0158
 1          A.    Yeah, that could be.  I think,
 2   you know, again, the whole idea of this is
 3   just flag somebody and at this point wouldn't
 4   necessarily say, you know, it's not like an
 5   A, B or a C, one's worse than the other.
 6   It's just a flagging mechanism.
 7          Q.    Okay.  I want to ask you a
 8   couple questions about Exhibit 22.  This was
 9   the February 22nd, 1996 letter to Janice Dees
10   from Susan Pinney.
11          A.    Okay.
12          Q.    First, the questionnaire that's
13   attached here, which begins on page TM 006673
14   following the letter, this is the
15   questionnaire from which the information on
16   Exhibit 12 through 21 and Exhibit 7 is
17   derived?
18          A.    That's -- that's my
19   understanding, yes.
20          Q.    And would you look at page nine
21   of the questionnaire, which is TM 6681?  And
22   my question is, on the question 18, that
23   question asks for, well, if -- if you could
24   just take a moment and read that question out
0159
 1   loud for us?
 2          A.    Question number 18?
 3          Q.    Yes.  It's not A or B, just 18,
 4   itself, that's in the box there?
 5          A.    Says, at Tastemaker are there
 6   any chemicals or substances that you work
 7   with that seem to result in tingling, burning
 8   or stinging of your eyes, nose or throat or
 9   frequent sneezing or difficulty breathing.
10          Q.    If I -- go ahead.
11          A.    And then you have a choice of
12   answering no or yes.
13          Q.    Okay.  So when -- when an
14   employee is answering question 18 the
15   chemical is not necessarily one that causes
16   difficulty breathing?
17          A.    That's correct.
18          Q.    When Janice Dees left
19   Tastemaker, Tastemaker was still interested
20   in identifying and preventing new cases of
21   bronchiolitis obliterans?
22              MR. CRICK:  Objection.  Leading.
23          A.    At the time that she left, yes,
24   they were -- yes, they were interested in
0160
 1   identifying existing and new cases.
 2          Q.    Were they also interested in
 3   preventing additional -- new additional
 4   cases?
 5          A.    Yes.
 6          Q.    I believe you told us earlier
 7   that the surveillance that you did lasted for
 8   a set period of time.  Do you know one way or
 9   the other whether that surveillance continued
10   after you stopped consulting for Tastemaker?
11          A.    I don't know definitively.  My
12   understanding that there was some ongoing
13   activity but I don't know the extent or the
14   depth or the quality of it.
15          Q.    And you talked a little bit
16   earlier about some of the work done at other
17   Tastemaker facilities outside the Cincinnati
18   area.  Did you identify respiratory illness
19   at any of those other facilities?  Let me ask
20   a better question.  Did you identify
21   bronchiolitis obliterans at any of those
22   other plants?
23          A.    Well, the testing that I did --
24   the -- I just developed the protocol for them
0161
 1   to conduct the tests.  I didn't look at the
 2   test results, myself.  They were collected
 3   and given to someone else.  I don't know who
 4   else got those.
 5          Q.    Okay.  One question I neglected
 6   to ask you on the earlier document.  When we
 7   looked at the safety protocol, Exhibit 30,
 8   the operational procedures for diacetyl spray
 9   drying.  I don't think you need the document
10   in front of you.  My -- my question is simply
11   did you ever request, from Tastemaker, to see
12   any safety protocols that they have for
13   specific chemicals?
14          A.    No.
15          Q.    Okay.  You may have said this
16   before but I just want to clarify, make sure
17   I understand.  The worker summary reports
18   that we have looked at a couple of times now,
19   those are not able to identify whether a
20   decrease in lung function is a result of
21   anything at work?
22          A.    They provide non-specific
23   results.  You don't know -- you don't know
24   what the cause would be, don't know if it's
0162
 1   from smoking, some other exposure, or at
 2   work.  There -- it's a non-specific
 3   identifier.  It's simply a flag for follow-up
 4   investigation.
 5          Q.    And based on that, then, are you
 6   able to move from the individual information
 7   and data collected on those sheets to
 8   determining -- to determining a cause for the
 9   entire plant?
10          A.    Not for the entire plant but,
11   for example, one individual, in particular,
12   did give some insight towards one of the
13   suspect chemicals.  This was a little bit
14   later on when she came in and did a lung
15   function test and she had a rather dramatic
16   reduction.  And it was because we had brought
17   with us, I instructed my staff to always
18   bring previous test results with them even
19   though they don't make a diagnosis, it's not
20   their role.  From an operational standpoint
21   they had instructions to look at the previous
22   test results, look at the current test
23   result, and if you thought there was
24   something significant that warranted further
0163
 1   attention bring -- let us know, and one of my
 2   operators recognized a very significant
 3   change and did some questioning --
 4   questioning there, you know, what was going
 5   on and identified that she -- that this may
 6   have been work related and then referred on
 7   to the clinic.
 8          Q.    Who was the employee?
 9          A.    It was a female.
10              MR. CRICK:  Can I, and I'm sorry,
11   I have to interrupt this, but you have
12   blacked out the names on most of the
13   documents.
14              MR. CALABRESE:  That's not
15   correct.  I have not blacked out the names.
16              MR. CRICK:  Well, wait a minute.
17   The names have been blacked out because of
18   privilege from -- from the University so I'd
19   be -- unless they filed a Workers
20   Compensation claim I think that that probably
21   would still apply here.
22          Q.    Do you remember the name of the
23   individual?
24          A.    I think I have parts of the
0164
 1   first and/or last name to remember who she
 2   was.
 3          Q.    Let's go off the record for one
 4   second.
 5              MR. CRICK:  We don't have to go
 6   off the record, but if he's going to give the
 7   names then I'm going to want all the records
 8   unredacted.
 9              MR. CALABRESE:  No, here's what
10   we're going to do.  Let's go off the record
11   for one second.
12              MR. GRUBB:  Everybody agrees we go
13   off the record?
14              MS. RUWE:  That's fine, and we can
15   talk about this.
16              MR. CALABRESE:  No, why don't --
17   why don't you just share the --
18              MR. CRICK:  Okay.
19              MR. GRUBB:  Off the record.
20            (Off the record discussion.)
21              MR. GRUBB:  1319 and 50.  We're
22   back on the record.
23          Q.    In terms of this one particular
24   individual that you're referring to what did
0165
 1   you learn?
 2          A.    Well, it provided -- she was
 3   able to recall an incident, a -- a work
 4   practice situation, with an exposure that
 5   gave significant insight as to at least what
 6   one of the possible chemicals may be that are
 7   causative for bronchiolitis obliterans
 8   because she had a -- a very distinct
 9   exposure.  The history wasn't fully given to
10   me.  This is from -- from recounts because I
11   didn't go into a detailed history the way I
12   thought Lockey would have.  But from what I
13   recollect it was like an exposure that kind
14   of almost knocked her off her feet, so to
15   speak.  Not that it literally knocked her off
16   her feet but one that was readily recognized
17   and -- and I believe that that led towards
18   thinking that acetaldehyde was one of the
19   potential causative agents.
20          Q.    Let me ask you on Exhibit 2,
21   then, this was the abstract, it lists Dr.
22   Lockey and yourself and a couple others, two
23   or three others, as authors of this -- this
24   paper.  About the middle of the page there's
0166
 1   a sentence beginning, a comprehensive review
 2   of the work site.  You see that sentence?
 3          A.    Yes.
 4          Q.    And that's referring to your
 5   work at Tastemaker?
 6          A.    Yes.  Not necessarily my work
 7   per se.
 8          Q.    The University?
 9          A.    Collectively, yes.
10          Q.    Okay.  It says, identified
11   multiple agents, and are there any specific
12   agents listed on Exhibit 2 in that sentence?
13          A.    Acetaldehyde.
14          Q.    And that's the same chemical you
15   just mentioned about the specific worker?
16          A.    Yes.
17              MR. CRICK:  Can I read that whole
18   sentence, please, because --
19              MR. CALABRESE:  Absolutely.
20              MR. CRICK:  Why don't you read it,
21   if you want?
22              MR. CALABRESE:  You can go ahead
23   and read it.
24              MR. CRICK:  A comprehensive review
0167
 1   of the work site identified multiple agents
 2   within the food flavoring industry as
 3   potential causative agents and most
 4   prominently acetaldehyde.
 5          Q.    Did you reach any conclusion on
 6   cause of bronchiolitis obliterans at the
 7   Tastemaker plant?
 8          A.    Personally reach a conclusion?
 9          Q.    Yes.
10          A.    My conclusion personally was
11   that acetaldehyde was certainly strongly
12   implicated but felt confident that there was
13   probably some other substances also.  One
14   thing that, an experience that I -- that I'll
15   never forget in my life, was my very first
16   experience there, and I can't remember who
17   was there but that very first walk through,
18   myself and Dr. Brooks, I know Dr. Brooks was
19   there, and someone led us through but I
20   remember walking outside going from one
21   building and passing to another building and
22   we -- we walked into a small room that was
23   vacant, there was no production going on, and
24   the recollection was this is where something
0168
 1   was previously.  The room was vacant and it
 2   was a small room.  And certainly me and Dr.
 3   Brooks, and then there was a third person
 4   walked into the room.  Again, it was
 5   completely vacant, that room, and all of a
 6   sudden the other individual or Dr. Brooks
 7   said to each other, do you feel that?  Let's
 8   get out of here.  And I didn't notice it
 9   right away and they -- they left.  I left
10   just right after them when all of a sudden I
11   felt this squeezing of my chest, felt like
12   squeezing of the chest, which I immediately
13   recognized as basically airway obstruction,
14   just as if having an asthmatic attack.  I
15   never had asthma, never had an asthmatic
16   attack.  But it's just clamping down of the
17   airways.  And -- and we walked out and it was
18   like, my God, never experienced anything like
19   that before and it really struck me because I
20   do methylcholine challenge testing, which is
21   a drug that we use to induce airway
22   obstruction in asthmatics as a diagnostic
23   test and this seemed to be faster and
24   greater, greater than -- than anything I've
0169
 1   never induced with a patient.  And it was
 2   just dramatic.  And then after coming out
 3   into the clean air it went away and the thing
 4   that impressed me is there was not a single
 5   thing going on in that room.  But it was --
 6   it was an observation, impression that
 7   something is some place.
 8          Q.    You don't know what chemical?
 9          A.    No, that was our first walk
10   through.  I just remember Dr. Brooks being
11   there and I was there and there was at least
12   one other person that walked in the room, I
13   think one person stayed out, and I don't
14   recall who that other person was but, yeah,
15   that was -- gave us -- gave me immediate
16   dramatic input that there's something here
17   because I've been in many, many facilities
18   and never experienced anything close to that
19   before.
20              MR. CRICK:  Can I ask a question
21   real quick?  Was that the processed flavors
22   room?
23              MR. CALABRESE:  Steve, you can ask
24   your question on re -- you'll have another
0170
 1   opportunity.
 2              MR. CRICK:  Okay.
 3          Q.    You never concluded that butter
 4   flavoring was the cause of any respiratory
 5   problems at Tastemaker?
 6          A.    Not myself, no.
 7          Q.    As part of your work at
 8   Tastemaker did you learn that there were
 9   people working in the same jobs at the plant
10   who did not have any health problems, same
11   jobs as those who did?
12          A.    Yes.
13          Q.    Were there also long term
14   employees who were fine?
15          A.    Yes.
16          Q.    You didn't make any
17   recommendations to -- well, strike that.  Did
18   you make any recommendations to Tastemaker
19   about butter flavor?
20          A.    I don't recall, myself, making
21   any kind of comment specifically about
22   butter, butter flavoring.  I just don't
23   recall.  You know, butter obviously stands
24   out now with all the publicity that's gone on
0171
 1   with popcorn plants.  I don't recall butter
 2   flavoring ever being something that drew my
 3   -- that caught my attention.  In fact, and
 4   this is -- this is just a recollection, I
 5   think that when I first read about the
 6   popcorn issue with the butter flavoring I
 7   remember thinking to myself, you know, that,
 8   well, immediately had similarities to the
 9   Tastemaker experience and I was right away
10   trying to think well, is there something
11   there that was also at Tastemaker.
12          Q.    The individuals you followed in
13   the pulmonary function testing program and
14   monitoring who did have bronchiolitis
15   obliterans, any of those individuals exhibit
16   the relentless decline that you typically see
17   in a classic BO case?
18          A.    In a classic?
19          Q.    BO case?
20              MR. CRICK:  Object to the form.
21          A.    They rather were classic.
22          Q.    They stabilize?
23          A.    I haven't seen individual
24   results after my involvement in individuals.
0172
 1          Q.    I'm just asking you about the
 2   time you were involved.
 3          A.    But my recollection was that the
 4   people had normal lung function replacement,
 5   had a quick drop, and then for the most part
 6   stayed there, you know, stayed at that -- at
 7   that fixed level.  So it was not reversible.
 8   My recollection was that there wasn't that
 9   much of a continuing decline.  Of course,
10   once you -- once you've had that level of
11   lung function everyone has declined, but not
12   a continuing accelerated drop.
13          Q.    Did you ever make any
14   recommendation that Tastemaker perform any
15   animal tests?
16          A.    Don't know.  I -- I've had
17   conversations with lots of ideas that were
18   thrown out and I can't -- I don't recall --
19   I'd only be speculating.  I imagine there are
20   probably some things that I was suggesting
21   either animal tests could be done on or to
22   review to see if there were animal tests but
23   it's all spec -- I -- my recollection at this
24   time isn't clear.  I can't tell you what I
0173
 1   did or did not remember at that time.
 2          Q.    Do you know who made the
 3   decision to bring Dr. Lockey in to the
 4   investigation in place of Dr. Brooks?
 5          A.    I think it was my
 6   recommendation.  That whole part is a little
 7   bit unclear, too.  Here's what my
 8   recollection and take was, is that somewhere
 9   a decision was made not to use Dr. Brooks and
10   -- and he may have participated in that in
11   terms of, you know, I'm too far away or I
12   don't know all those details.  Dr. Brooks
13   involved me because of, one, I worked with
14   him, he was my boss, so I worked closely with
15   him and I also had the equipment, the tools
16   that would be able to do an investigation.
17                And I -- and I think that once
18   Tastemaker recognized what my capabilities
19   were able to provide I think that I kind of
20   came on to assist in that role, and then I
21   believe that I suggested, you know, you
22   really need a good occupational pulmonary
23   physician.  I think that I then recommended
24   Dr. Lockey, which was really pretty much the
0174
 1   same as Dr. Brooks, only local.
 2              MR. GRUBB:  Sir, I need to change
 3   tape.
 4              MR. CALABRESE:  Okay.
 5              MR. GRUBB:  We're changing from
 6   video number one, DVD disk number one -- or,
 7   sorry, number two to three.  Off the record.
 8            (Off the record discussion.)
 9              MR. GRUBB:  1336 and five seconds.
10   We're on the record with videotape and DVD
11   disk number three.
12          Q.    Mr. Crick had asked you earlier
13   a few questions about a confidentiality
14   agreement.  I just want -- had a couple
15   follow-ups on that.  Have you ever requested
16   Tastemaker or Givaudan release you from your
17   confidentiality agreement?
18          A.    I don't recall.
19          Q.    Before you entered into that
20   agreement did you consult with counsel?
21          A.    Before that?  No.  I don't think
22   so.  Not this -- I mean --
23          Q.    You didn't consult with
24   University's counsel?
0175
 1          A.    I think -- I don't know.  I
 2   suspect that they were all done around the
 3   same period of time and whether or not, for
 4   example, Dr. Lockey sent them all to the
 5   University attorneys to review I don't know.
 6   From -- from my perspective, you know, isn't
 7   anything different than you do for any other
 8   company.  You -- you know, you don't go
 9   around blabbing about what you find so --
10          Q.    And your confidentiality
11   agreement contains a specific exemption for
12   public health, correct?
13          A.    Yeah, I haven't seen it so I
14   don't know exactly what it says there.
15          Q.    Okay.  Let me just take a
16   minute.  There's one more area I want to talk
17   about but let me, before I move to it,
18   there's one other question I had, make sure I
19   covered.  Are you aware that Dr. Lockey met
20   with representatives of FEMA?
21          A.    I recall that he met with some
22   -- I -- I've heard that before.
23          Q.    Were you involved at the time in
24   helping him prepare for that meeting?
0176
 1          A.    I don't know.
 2          Q.    I believe you stated earlier
 3   that when you go into a company, work with
 4   them on a respirator program, you always find
 5   problems with the respirators.  Is that --
 6          A.    Just about always, yes.
 7          Q.    So Tastemaker was not unique in
 8   that regard?
 9          A.    No.
10          Q.    All right.  Just one last short
11   set of questions and I think I've gotten
12   through what I wanted to cover.  I want to
13   ask you to look at Exhibit 3, if you would.
14          A.    What's it look like?
15          Q.    This is the Keith Campbell
16   pulmonary function test result.
17              MR. CRICK:  You can look at my
18   copy.
19          A.    Okay.
20          Q.    I just wanted to ask you about
21   near the bottom there's a section called
22   additional test session comments.  You see
23   that?
24          A.    Yes.
0177
 1          Q.    And -- and there's a notation
 2   under there that says patient was not pushed
 3   to plateau due to severe dizziness and
 4   history of, quote, blacking out.  Do you see
 5   that?
 6          A.    Yes.
 7          Q.    That have any effect on the
 8   readings that you end up with?
 9          A.    Yes.  It -- it would impact
10   primarily the FEV1 FVC ratio so that the --
11   the observed or the reported value would be
12   falsely high.  If -- if the person were to
13   continue blowing out the FVC would continue
14   to increase.  As the FVC continues to
15   increase, if it were to continue to increase,
16   then that reported ratio would be lower,
17   making it look -- making it look -- so it
18   would be worse.
19                By stopping a person early you
20   run the risk that that ratio will be falsely
21   high so you may miss airway obstruction.  In
22   this case, however, the airway obstruction is
23   so severe that we're not missing much because
24   we're, in this individual we're not tracking
0178
 1   FVC as much as we're tacking FEV1.  So in
 2   some of these people for safety reasons you
 3   would have to stop them early, so the primary
 4   tool for tracking an individual like this
 5   would be the FEV1 and not the FVC.
 6          Q.    All right.  Thank you.  That's
 7   all I have for now.
 8                       RECROSS-EXAMINATION
 9   BY MR. CRICK:
10          Q.    I've just got about five minutes
11   and we'll be done.
12          A.    Uh-huh.
13          Q.    You told a story a few minutes
14   ago about an inspection you did at the plant
15   with Mr. Brooks, with Dr. Brooks?
16          A.    Yes, a walk through.
17          Q.    Right.  Your own personal
18   experience of having a chest tightness just
19   from walking into an empty building and then
20   seeing the fact that there were so many
21   people at the plant that had lung injury sort
22   of increased your desire to want to try to
23   get to the bottom of this issue at the plant.
24   Is -- is that fair?
0179
 1              MR. CALABRESE:  Objection.
 2          A.    It's not so much -- there wasn't
 3   a large number of people that had a problem
 4   there, it -- I know that's all -- it's all
 5   relative but there was a -- a small number of
 6   people that had very severe problems that
 7   heightened that awareness.  They were young.
 8   I mean, they were relatively young.  We're
 9   not talking about old people.  So it was that
10   personal observation, the age of the
11   individuals, and the severity of the response
12   that -- that led you to the fact there is
13   something different and significant here
14   compared to, you know, other investigations
15   where they're a lot more subtle, you know,
16   asbestos.  You know, you get a lot of these
17   subtle things, some changes in a lung
18   function and some changes on x-ray, but
19   they're not always that dramatic.
20          Q.    This was one of the reasons why
21   you wanted to use your toxicology expertise
22   at the Tastemaker plant, you thought you had
23   something to add to figure out this issue?
24              MR. CALABRESE:  Objection.
0180
 1          A.    It was academically challenging
 2   and interesting and felt that could do some
 3   public -- public -- good for these employees,
 4   yes.
 5          Q.    And you offered that service to
 6   the company?
 7          A.    Yes.
 8          Q.    Mr. Calabrese asked you several
 9   questions about the diacetyl documents, the
10   safety documents, and whether you had asked
11   to see that.  You weren't even hired to do
12   that kind of work by Tastemaker is -- isn't
13   that correct?
14          A.    That's correct.
15          Q.    It wasn't your place to ask for
16   those records because they didn't hire you to
17   do any of that kind of work?
18              MR. CALABRESE:  Objection.
19          A.    Well, I also had to be careful
20   because I was being reminded that I was not
21   to share my knowledge with other employees,
22   even at the management levels, so I couldn't
23   always just go up to people and express a
24   desire to do additional work.
0181
 1          Q.    Did you see any evidence, while
 2   you were doing your work, that Tastemaker was
 3   investigating if the flavors that it sold to
 4   customers might be hazardous to their
 5   employees?
 6          A.    I really didn't know --
 7              MR. CALABRESE:  Objection.
 8          A.    -- what they were doing.
 9          Q.    I'm just asking, did you see any
10   evidence of that work?
11              MR. CALABRESE:  Objection.
12          A.    I really wouldn't have been in a
13   position to see if it was there or not so I
14   did not see it myself.
15          Q.    I asked it in a bad way.  You
16   were trying to investigate, with the
17   University, whether there was and what was
18   the hazard to the Tastemaker employees from
19   their exposures at the plants.  Is that fair?
20          A.    Unclear.  The focus changed.
21   The initial desire was to -- for
22   identification of substance or substances.
23   It transitioned to solely a medical
24   surveillance --
0182
 1          Q.    Okay.
 2          A.    -- project.
 3          Q.    Thank you.  That's all I have.
 4                  RECROSS-EXAMINATION
 5   BY MR. CALABRESE:
 6          Q.    One quick follow-up question on
 7   that.  You didn't conclude that any product
 8   going out the door from Tastemaker was the
 9   cause of any of the respiratory injuries you
10   saw?
11          A.    Right.  Made no conclusion
12   regarding any product going out the door?
13              MR. CALABRESE:  Thank you.
14              MR. BRITTINGHAM:  I have no
15   questions, Dr. McKay.
16              MR. GRUBB:  Sir, you have a right
17   to review this tape prior to its being shown
18   to a court or jury.  Will you waive that
19   right at this point, sir?
20              THE DEPONENT:  I'm comfortable
21   waiving that right.
22              MR. GRUBB:  Thank you.  At this
23   point we're off the record.  Time is 1346 and
24   23 seconds.
0183
 1   
 2   
                             ___________________
 3                             ROY McKAY, Ph.D.
 4   
 5   
                         - - -
 6          (DEPOSITION CONCLUDED AT 1:46 P.M.)
                         - - -
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0184
 1               C E R T I F I C A T E
 2   
     STATE  OF  OHIO
 3            :  SS
     COUNTY OF HAMILTON
 4   
 5   
 6          I, Valerie Jones Conn, the undersigned,
     a duly qualified notary public within and for
 7   the State of Ohio, do hereby certify that ROY
     McKAY, Ph.D., was by me first duly sworn to
 8   depose the truth and nothing but the truth;
     foregoing is the deposition given at said
 9   time and place by said witness; deposition
     was taken pursuant to stipulations
10   hereinbefore set forth; deposition was taken
     by me in stenotype and transcribed by me by
11   means of computer; deposition was made
     available to the witness for examination and
12   signature; I am neither a relative of any of
     the parties or any of their counsel; I am
13   not, nor is the court reporting firm with
     which I am affiliated, under a contract as
14   defined in Civil Rule 28(D) and have no
     financial interest in the result of this
15   action.
16          IN WITNESS WHEREOF, I have hereunto set
     my hand and official seal of office at
17   Cincinnati, Ohio this _________day of
     _____________, 2006.
18   
19   
                        _______________________
20   My commission expires  Valerie Jones Conn
     September 4, 2007 Notary Public-State of Ohio
21   
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24