1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA 2 WESTERN DIVISION - - - 3 4 KEVIN REEMES, ) ) 5 Plaintiff, ) ) 6 vs. ) No. C04-4061-MWB ) 7 INTERNATIONAL FLAVORS & ) FRAGRANCES, INC., et al., ) 8 ) ) 9 Defendants. ) ----------------------------- 10 11 VIDEOTAPED 12 13 DEPOSITION OF 14 ELIZABETH D. O'CONNOR 15 INDIANAPOLIS, INDIANA 16 June 7, 2006 17 18 19 20 ATKINSON-BAKER, INC. COURT REPORTERS 21 (800) 288-3376 www.depo.com 22 23 REPORTED BY: LINDA C. CALLAHAN, NOTARY PUBLIC 24 FILE NO: A004CB4 25 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA 2 WESTERN DIVISION 3 KEVIN REMMES, ) 4 ) Plaintiff, ) 5 ) vs. )No. CO4-4061-MWB 6 ) INTERNATIONAL FLAVORS & ) 7 FRAGRANES ) ) 8 Defendants. ) 9 10 11 VIDEOTAPED 12 Deposition of ELIZABETH D. O'CONNOR, taken on 13 behalf of Plaintiff, at 2544 Executive Drive, 14 Indianapolis Indiana, commencing at 1:08 p.m., Wednesday, 15 June 7, 2006 before Linda C. Callahan, Notary Public: 16 17 18 19 20 21 22 23 24 25 2 1 A P P E A R A N C E S 2 3 FOR THE PLAINTIFF: 4 HUMPHREY, FARRINGTON & McCLAIN, P.C. BY: STEVEN E. CRICK, ESQ. 5 221 W. Lexington Suite 400 6 Independence, Missouri 64050 7 FOR THE DEFENDANTS: 8 SENSIENT FLAVORS, INC.: MICHAEL BEST & FRIEDERICH, LLP 9 BY: PAUL E. BENSON, ESQ. 100 E. Wisconsin Avenue 10 Suite 3300 Milwaukee, Wisconsin 53202-0656 11 INTERNATIONAL FLAVORS & FRAGRANCES, INC.: 12 DINSMORE & SHOHL, LLP BY: MARY JO MIDDELHOFF, ESQ. 13 255 E. Fifth Street Suite 1900 14 Cincinnati, Ohio 45202 15 GIVAURDAN FLAVORS CORP.: 16 SQUIRE SANDER BY: J. PHILIP CALABRESE, ESQ. 17 4900 Key Tower 127 Public Square 18 Cleveland, OH 44114-1304 19 ALSO PRESENT: Terry Dobson, Annette Dobson, Videographers 20 21 22 23 24 25 3 1 I N D E X 2 WITNESS: ELIZABETH D. O'CONNOR 3 EXAMINATION PAGE 4 BY MR. CRICK: 7, 99 BY MR. BENSON: 97 5 BY MR. CALABRESE: 98 6 EXHIBITS PLAINTIFFS 7 NUMBER DESCRIPTION PAGE 8 1 - Defendant's responses to 30(b)(6) 12 9 2 - Statement re: Butter flavorings 37 10 3- Toxic Substances Control Sourcebook 44 11 4 - Sensient written hazard comm program 47 12 5- 3-11-04 MSDS 52 13 6 - 10-28-04 MSDS 59 14 8- Flavor ingredient data sheet 69 15 9 - 10-3-01 MSDS 72 16 10 - Citrus and Allied MSDS 75 17 11 - Sigma-Aldrich MSDS 79 18 12 - Product Label ADD 83 19 13 - "John" e-mail 89 20 14 - Lockey, Walker report 90 21 15 - Tastemaker Operational Procedures 93 22 17 - 3-36-03 MSDS 99 23 24 25 4 1 DEFENDANTS' LETTER DESCRIPTION PAGE 2 (NONE) 3 4 QUESTIONS WITNESS WAS INSTRUCTED NOT TO ANSWER: 5 (NONE) 6 7 INFORMATION TO BE SUPPLIED: 8 PAGE LINE 9 27, line 12, through 29, line 19 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 1 INDIANAPOLIS, INDIANA; WEDNESDAY, JUNE 7, 2006; 2 - - - 3 THE VIDEOGRAPHER: We're on videotape 4 record. I am Terry Dobson, your videographer, and I 5 represent Atkinson Baker, Incorporated in Glendale, 6 California. I'm not financially interested in this 7 action, nor am I relative or employee of any attorney or 8 any of the parties. Today's date is June 7, 2006, the 9 time is 1:08 p.m. This deposition is taking place at 10 Adam's Mark Hotel, Indianapolis, Indiana. This is Case 01:08 11 No. C04-4061-MWB entitled Kevin Remmes, Plaintiff, vs. 12 International Flavors and Fragrances, Incorporated, et 13 al. The deponent is Libby O'Connor. This deposition is 14 being taken on behalf of the plaintiff. Your court reporter 15 is Linda Callahan from Atkinson-Baker. Counsel will now 16 please introduce themselves and state whom they 17 represent. 18 MR. CRICK: Steven Crick for the 19 plaintiffs. 20 MR. BENSON: Paul Benson for Defendant 01:08 21 Sensient Flavors. 22 MS. MIDDELHOFF: Mary Jo Middelhoff for 23 Defendant, International Flavors and Fragrances. 24 MR. CALABRESE: Phil Calabrese for 25 Givaudan Flavors Corporation. 6 1 ELIZABETH D. O'CONNOR, 2 having first been duly sworn, 3 was examined and testified as follows: 4 5 EXAMINATION 6 7 BY MR. CRICK: 8 Q. Would you please state your name and your 9 address. 10 A. Elizabeth Dexter O'Connor, 1589 Fry Road, 01:09 11 Greenwood, Indiana, 46142. 12 Q. Where do you work at? 13 A. Sensient Flavors. 14 Q. And what do you do at Sensient Flavors? 15 A. I'm an environmental regulatory manager, I 16 do OSHA, EPA, DOT regulations. 17 Q. DOT? 18 A. Uh-huh. 19 Q. What is that? 20 A. Department of Transportation. 01:09 21 Q. And how long have you worked for Sensient? 22 A. 19 years. 23 Q. Now, you started when it was called 24 something else? 25 A. Universal Flavors. 7 1 Q. So does that mean you started around 1987? 2 A. 1988. 3 Q. 1988. And have you been in that same 4 position since 1988? 5 A. Probably the same position but not doing 6 everything at -- you know, what I'm doing now. 7 Q. Well, so when you started, what were you 8 doing? 9 A. I was hired in as an OSHA coordinator. 10 Q. And your role's changed over time? 01:10 11 A. Yes. 12 Q. How did it change? 13 A. I have increased my job responsibilities. 14 They added on different regulatory agencies to my 15 position. 16 Q. Meaning the EPA and the Indiana Department 17 of Transportation? 18 A. Right. 19 Q. How about the Indiana Department of Health, 20 is that yours, too? 01:11 21 A. No. 22 Q. Is there anybody who deals with the Indiana 23 Department of Health for Sensient? 24 A. Well, I imagine there is, but I really 25 don't know who it is. 8 1 Q. Okay. And you understand -- have you ever 2 heard of an entity called NIOSH? 3 A. Yes. 4 Q. What is that? 5 A. National Institute of Occupational Safety 6 and Health. 7 Q. So are you the person at Sensient who deals 8 with NIOSH, also? 9 A. Directly, not -- I mean, indirectly but not 10 directly. 01:11 11 Q. Indirectly. You're aware that NIOSH has 12 done a study at a microwave popcorn plant and found 13 that there was a relationship between lung disease and 14 exposure to butter flavoring; you're aware of that? 15 A. Yes. 16 MR. BENSON: Object to form. 17 MR. CALABRESE: Counsel, may we have an 18 agreement that an objection by one is an objection by 19 all? 20 MR. CRICK: Okay. 01:12 21 MR. CALABRESE: And I think just to 22 facilitate things, if we could have that agreement for 23 the rest of the week? 24 MR. CRICK: Okay. 25 MR. CALABRESE: Okay, thank you. 9 1 Q. You've read that NIOSH report? 2 A. Yes. 3 Q. In fact, there's been several NIOSH 4 reports, haven't there? 5 A. Yes. 6 Q. There was an original report on the plant 7 in Missouri; have you read that report? 8 A. Some time ago, yes. 9 Q. And you read an alert that NIOSH came out 10 with? 01:12 11 A. Yes. 12 Q. And have you read the NIOSH reports 13 concerning the other microwave popcorn plants that it 14 had studied? 15 A. Originally, yes, I read some of those. 16 Q. So did you read the one concerning the 17 American Popcorn plant in Sioux City, Iowa? 18 A. I might have. I don't remember it. 19 Q. Okay. But you know that NIOSH has reached 20 a conclusion that exposure to butter flavoring can 01:12 21 cause lung disease? 22 MR. BENSON: Objection to form. 23 MS. MIDDELHOFF: Objection to the form. 24 Q. You can go ahead and answer. 25 A. Yes. 10 1 Q. Now, thank you for showing up today. I 2 understand you're being offered as a witness to testify 3 on behalf of Sensient on some specific issues; do you 4 understand that? 5 A. Yes. 6 Q. Okay. And your lawyer is sitting beside 7 you; you met with him before today? 8 A. Yes. 9 MR. CRICK: I'm not going to ask you any 10 questions about what the two of you have talked about 01:13 11 because that's privileged communications, and I can't 12 do that; he wouldn't let me. This is your first time 13 giving a deposition? 14 THE WITNESS: Yes? 15 MR. CRICK: All right. Well, thank you 16 for being here. We've got a reporter to your left, we 17 have got a videographer straight in front of you, and 18 they cannot -- the reporter can't type down if we're 19 both talking at the same time, so I'll try to not 20 interrupt you, if you'd try not to speak over me; 01:13 21 otherwise, our reporter will not be happy about it. 22 THE WITNESS: Okay. 23 MR. CRICK: And the same way with the 24 video person, if we decide later we want to edit the 25 video that gets played to the jury, we have got to make 11 1 sure we don't talk over each other. Now, one other 2 main thing to know is that you just heard somebody make 3 an objection; the judge isn't here, that's who normally 4 would rule on objections, okay, so somebody might 5 object; you still answer the question after they finish 6 their objection, the judge will deal with that later. 7 THE WITNESS: Okay. 8 MR. CRICK: Okay. So we don't have to 9 come back and make you sit through this process again. 10 Q. All right. My understanding is is that 01:14 11 you're appearing here as a witness on behalf of 12 Sensient Flavors on some specific issues concerning 13 Material Safety Data Sheets; is that what you 14 understand? 15 A. Yes. 16 Q. And also regarding communications or 17 dealings with NIOSH concerning Sensient; do you 18 understand that, too? 19 MR. BENSON: Object to form. 20 Q. That's my understanding; is that yours? 01:15 21 A. Can you repeat that again? 22 Q. Here, let me just show you this. 23 A. Okay. 24 (O'Connor Deposition Exhibit No. 1 was 25 marked for identification.) 12 1 Q. This is Exhibit No. 1. We have some 2 copies. You guys are going to have to share most of 3 these exhibits. 4 A. Okay. 5 Q. Exhibit No. 1 is a letter to me from your 6 attorney, and behind it is something called "Sensient 7 Flavors' Written Objections and Responses to 8 Plaintiff's Amended Rule 30(b)(6) Notice of 9 Deposition"; do you see that, the third page here? 10 A. Yes. 01:15 11 Q. And then if you go to page three, down 12 below on the last line of the page, it says, "Material 13 Safety Data Sheets for the product; Libby O'Connor"; 14 that's you? 15 A. Correct. 16 Q. So you know you're here to testify about 17 Material Safety Data Sheets? 18 A. Yes. 19 Q. And if you also look at page four, same 20 thing, "Creation of Material Safety Data Sheets and the 01:16 21 investigation that leads to that", they have designated 22 you, and that's what you're here for. 23 MR. BENSON: Where? 24 MR. CRICK: On page five; page five, it's 25 paragraph four. 13 1 MR. BENSON: Okay, you said page four, so 2 we were looking at the wrong thing. 3 Q. I'm glad that he corrected me; I'm sure he 4 will do it many times. 5 MR. BENSON: Only if you make mistakes. 6 Q. Do you see that paragraph four? 7 A. Yes. 8 Q. It says, "Creation of Material Safety Data 9 Sheets for the products at issue. This includes a 10 description of all investigations or research for 01:16 11 information to provide in the MSDS, actual creation of 12 the MSDS", and below that for the response, it says, 13 "Ms. O'Connor"; that's you? 14 A. Right. 15 Q. And then on paragraph eight, it's on page 16 seven, Sensient was asked to produce someone on, quote, 17 "All communications with NIOSH or any other 18 governmental agency regarding hazards of diacetyl or 19 butter flavoring and each inspection of your plants by 20 NIOSH, OSHA, or your insurer for workplace hazards, and 01:17 21 also your receipt, review, and communications 22 concerning the NIOSH study of the International Bakers' 23 Services Plant of Indiana." Do you see that? 24 A. Yes. 25 Q. And then there's a response, but the people 14 1 listed are Mr. Partlow and Ms. O'Connor, and that's 2 you? 3 A. Yes. 4 MR. BENSON: But there's also an objection 5 that I think you need to read into the record under the 6 rule of completeness, beginning at the bottom of page 7 seven carrying over to page eight, "Objection. Finally, 8 this area of inquiry assumes that Sensient in fact had 9 communications with NIOSH or governmental agencies 10 regarding the hazards of diacetyl or butter flavoring. 01:18 11 Because that assumption is false, the company is not in a 12 position to produce a witness on this issue. Subject to 13 said objections, and without waiving the same, Sensient 14 will make the following witnesses available to testify on 15 the general subject of communications with governmental 16 agencies at a mutually-agreeable date, time, and place", 17 and then Ms. Part -- Ms. O'Connor and Mr. Partlow are 18 identified. 19 Q. If there's anyone at the company who would 20 be responsible for dealing with governmental agencies 01:18 21 on this issue of flavoring and hazards, that would be 22 you? 23 A. No. 24 Q. Who else would be? 25 A. Mr. Partlow. 15 1 Q. Okay. So it would be you or Mr. Partlow? 2 A. Right, but -- so -- 3 Q. Okay. Well, let me ask you a question, 4 then. I just asked you about NIOSH. You've heard of 5 NIOSH? 6 A. Oh, yes. 7 Q. Do you know what NIOSH does? 8 A. They investigate health hazards and stuff 9 for the workplace. 10 Q. Right. Just like you know they've 01:19 11 investigated the workplace hazards at those popcorn 12 plants? 13 A. Correct. 14 MR. BENSON: Object to form. 15 Q. Have you ever given any information about 16 flavors made at Sensient to NIOSH? 17 A. No. 18 Q. Did you know that the United States 19 Congress was doing an investigation about the hazards 20 of flavors? 01:19 21 A. No. 22 MR. CALABRESE: Object to 23 characterization, also beyond the Notice. 24 Q. Have you provided any information of 25 Sensient Flavors to a member of the United States 16 1 Congress? 2 A. No. 3 Q. NIOSH wants to go into the Sensient plant 4 so it can see if the Sensient butter flavorings have 5 the same degree of health hazard as the flavorings that 6 are found at these other popcorn plants. As the 7 Sensient governmental agents person, would you mind 8 inviting NIOSH into your plant? 9 MR. BENSON: Object to the form of the 10 question; assumes facts not in evidence. Subject 01:20 11 thereto, the only way that she will be able to answer 12 that question is after consulting with counsel, and that 13 would be a privileged communication, so I am instructing 14 her not to answer. 15 Q. Well, have you ever invited NIOSH to come 16 into the plant? 17 A. No. 18 Q. That's the problem, is that the lawyers are 19 blocking NIOSH from coming into the plant. 20 MR. BENSON: I will -- I object to that. 01:20 21 NIOSH is -- 22 MR. CRICK: I'm not interrupting you. 23 MR. BENSON: But that is just a false 24 statement. 25 MR. CRICK: I'm not interrupting you; and 17 1 I'm not interrupting you, okay? 2 MR. BENSON: But you're making a false 3 statement on the record. 4 MR. CRICK: It doesn't mean you can be 5 rude and interrupt the record, so you make your objection 6 when I'm through. 7 MR. BENSON: Okay. I'll wait until you're 8 finished and then I'll object. 9 Q. Okay. The lawyers are blocking NIOSH from 10 coming into the plant, and so what I'm asking of you, 01:21 11 because this is an important issue of health to a lot 12 of people in the United States, is would you invite 13 NIOSH or talk to your superiors about inviting NIOSH 14 into the Sensient plant, like they have been into these 15 popcorn plants? 16 MR. BENSON: I would object to the form of 17 the question, it assumes facts not in evidence, it is a 18 false statement. No request by NIOSH has ever been made 19 of my office in its capacity as counsel for Senseint, nor 20 to my knowledge, has any request by NIOSH ever been made 01:21 21 to Sensient. And I further object to Ms. O'Connor 22 answering this question, because it calls for speculation 23 on her part, given the fact that no such request has been 24 made. And finally, to the extent that she would have a 25 position and be able to answer that question, it would 18 1 require the disclosure of a privileged communication, and 2 I instruct her not to answer. 3 MR. CALABRESE: I also object and move to 4 strike the question. 5 MS. MIDDELHOFF: And I move to strike the 6 statement prior to the question with respect to plants. 7 Q. I have never spoken to anybody in depth 8 from Sensient before; what exactly is Sensient as a 9 company, what does it do? 10 A. We manufacture flavors for food and 01:22 11 beverage. 12 Q. Okay. And we're here in Indianapolis. Is 13 that where their main United States plant is at? 14 A. Yes. 15 Q. Does it have other manufacturing plants in 16 the United States? 17 A. Yes. 18 Q. Where at? 19 A. Amboy, Illinois. I'm drawing a blank. I'm 20 drawing a blank. 01:23 21 Q. They have other manufacturing plants? 22 A. Yes. 23 Q. Do you know how long Sensient has been in 24 business? 25 A. No. 19 1 Q. Decades. Has it primarily always been in 2 Indianapolis? 3 A. The main headquarters for flavors, yes. 4 Q. Now, it used to be called Universal 5 Flavors? 6 A. Yes. 7 Q. And then it changed its name to Sensient? 8 A. Yes. 9 Q. Do you remember when it changed its name to 10 Sensient, approximately? 01:23 11 A. Approximately 2000, 2001, something like 12 that. 13 Q. Okay. So Sensient makes flavors that are 14 used in foods; is that right? 15 A. Yes. 16 Q. And the flavors that are used in beverages? 17 A. Yes. 18 Q. Things that people eat and drink? 19 A. Yes. 20 Q. Have you ever heard of something called 01:24 21 FEMA? 22 A. Yes. 23 Q. F-E-M-A, you've heard of FEMA? 24 A. Yes. 25 Q. What is FEMA? 20 1 A. It's a flavor and fragrance organization. 2 Q. Is that called the Flavor and Extract 3 Manufacturers' Association? 4 A. Yes. 5 Q. Do you have dealings with FEMA in your role 6 at Sensient? 7 A. Indirectly, yes. 8 Q. And is that because you have access to the 9 FEMA database? 10 A. No. 01:24 11 Q. What is your indirect relationship with 12 FEMA? 13 A. I get printout copies of their data sheets. 14 Q. Printout copies? 15 A. Right. 16 Q. Now, I was in your office a couple of weeks 17 ago, and it was a very nice office, and you had a lot 18 -- a wall of shelves. Is that where you keep your FEMA 19 data sheet information? 20 A. No. 01:25 21 Q. Where do you keep those at? 22 A. Data sheets are in a file cabinet 23 downstairs. 24 Q. Okay. And you have them alphabetized by 25 ingredient? 21 1 A. No, I think they're by CAS numbers, CAS 2 numbers. 3 Q. Now, C-A-S numbers -- 4 A. Or FEMA numbers; I'm not sure. 5 Q. A CAS a number, is that a FEMA number? 6 A. No, that's a chemical abstracts service 7 number. 8 Q. Okay. So then you have an index for the 9 CAS numbers, and you just look to that number and 10 that's where you'll find the FEMA information? 01:25 11 A. Yes. 12 Q. And do you have other things in that file 13 cabinet with the FEMA information besides just that? I 14 mean -- let me ask it a better way. The file cabinet 15 that you were just talking about where you file the 16 FEMA data sheets, are there other things in those same 17 files? 18 A. Well, there's other stuff in the file 19 cabinets. 20 Q. All right. So do you have a file on 01:26 21 diacetyl? 22 A. Yes. 23 Q. Okay. And you have the FEMA data sheet on 24 diacetyl? 25 A. Yes. 22 1 Q. What is the FEMA GRAS list; have you ever 2 heard of that? 3 A. It just means that it can be used in food. 4 Q. GRAS, generally recognized as safe; is that 5 what that means? 6 A. Yes. 7 Q. So -- let me back up a little bit. Have 8 you been doing Material Safety Data Sheets since you 9 started at the plant in 1988? 10 A. No. 01:27 11 Q. When did you start that? 12 A. Oh, approximately 1990. 13 Q. So since 1990, have you been the person at 14 the plant who's been responsible for safety data 15 sheets? 16 A. Probably that basic person, yes. 17 Q. What is a Material Safety Data Sheet? 18 A. It gives you all the information you need 19 to know about a chemical. 20 Q. When you say, all the information you need 01:27 21 to know, we're talking about safety information? 22 A. Right. 23 Q. And who do these Material Safety Data 24 sheets go to? 25 A. To our plant employees and customers. 23 1 Q. So do you -- okay. So when you prepare 2 Material Safety Data Sheets, you make them for your 3 plant employees, too? 4 A. Yes. 5 Q. Now, we're dealing here with a product made 6 by Sensient for American Pop Corn; are you familiar 7 with that? 8 A. Yes. 9 Q. And have you looked at the Material Safety 10 Data Sheets for that product? 01:28 11 A. Yes. 12 Q. How many products are we talking about; one 13 or two or three? 14 A. I don't know. 15 Q. I mean, how many different products did you 16 look at safety data sheets for for today; did you look 17 at any? 18 A. I'm not really sure I understand your 19 question. 20 Q. Okay. Did you prepare for today's 01:28 21 deposition; did you like look at any records or 22 anything to prepare to testify today? 23 A. MSDS's? No. 24 Q. You didn't? 25 A. No. 24 1 Q. Did you know that this case involved butter 2 flavoring made by Sensient? 3 A. Yes. 4 Q. Okay. To prepare for today, did you happen 5 to look at any of those Material Safety Data Sheets 6 that you had prepared? 7 A. No. 8 Q. Has your lawyer asked you to do anything at 9 all to prepare to testify today? 10 A. Just come -- 01:29 11 MR. BENSON: Well, I think -- thank you. 12 I mean, you're getting close to privilege there. 13 MR. CRICK: Yeah, I am. I know. I'm 14 taking a corporate rep who hasn't been asked to prepare. 15 MR. BENSON: Well, that's not true. 16 MR. CRICK: The whole point is to produce 17 somebody who's prepared. 18 MR. BENSON: She's prepared. Why don't 19 you ask her if she's met with anybody or she has in fact, 20 you know, talked to her lawyer, something that's not -- 01:29 21 something that's not privileged. 22 MR. CRICK: We're going -- we're going to 23 do that. 24 Q. But did you look at any -- any Material 25 Safety Data Sheets for the American Pop Corn Company 25 1 before you came here today, in the last month, even? 2 A. Yes. 3 Q. Okay. How did that happen; were you asked 4 to gather them all up and start going over them? 5 A. No, I just did it for my own personal 6 review. 7 Q. All right. And so when was the last time 8 you looked at those American Pop Corn Company Material 9 Safety Data Sheets? 10 A. A couple days ago. 01:30 11 Q. Great. I want to make sure we're talking 12 about the same things. How far back, what was the 13 earliest safety data sheet that you looked at? 14 A. Probably the last one I did which was 2004. 15 Q. Is that the only one you looked at? 16 A. Yes. 17 Q. Just the one? 18 A. Yes. 19 Q. Okay. Did you know there -- there had been 20 others? 01:30 21 A. In the -- you mean on different products or 22 -- 23 Q. No, no, even on this product, there had 24 been changes in the safety data sheet. 25 A. Oh, yes; yes, yes, yes. 26 1 Q. Did you look at any of those earlier 2 versions? 3 A. A while back. 4 Q. When you say, a while back, you mean when 5 -- 6 A. A few months ago, I mean, not -- not 7 yesterday or the next -- or the day before, it's been a 8 few months. 9 Q. Okay. So in the last few months, you've 10 looked at them? 01:31 11 A. Yes. 12 Q. What is the earliest safety data sheet that 13 you have on these American Pop Corn products? 14 A. I don't remember. 15 Q. The earliest one I've seen is from 2001. 16 Do you know if there's one earlier than that? 17 A. I don't remember. 18 MR. CRICK: Paul, is there one earlier 19 than that, because I haven't seen it? 20 MR. BENSON: Are you asking me did they 01:31 21 have one at one point in time -- - 22 MR. CRICK: No, is there one now. 23 MR. BENSON: -- or is there one now? 24 MR. CRICK: Is there one now. 25 MR. BENSON: The answer to is there one 27 1 now is answered in the documents we've provided, so if 2 you're correct then -- 3 MR. CRICK: I'm asking you a straight 4 question -- 5 MR. BENSON: And I'm giving you -- 6 MR. CRICK: -- is there one earlier than 7 2001. 8 MR. BENSON: Well, but your question -- 9 part of the problem that you have is it's not a very good 10 question. They obviously had one in '97 -- 01:31 11 MR. CRICK: I didn't ask that. 12 MR. BENSON: -- when they were sent -- 13 when they were selling it. 14 MR. CRICK: I didn't ask that. 15 MR. BENSON: Do we have one in existence? 16 You tell me; you have all the documents. 17 MR. CRICK: I'm asking you a straight 18 question. Do you have one earlier than 2001? 19 MR. BENSON: I have produced all the 20 documents that we have. I have not, in preparation for 01:32 21 defending this deposition, gone through every single one 22 of those documents to determine the earliest date of a 23 Material Safety Data Sheet that we produced to your 24 office seven months ago. 25 Q. Ms. O'Connor, how do we find out if there 28 1 are earlier safety data sheets than 2001, because 2 that's the earliest one I've seen. I haven't seen any 3 that have a Universal stamp on it, they have got the 4 Sensient stamp on it. I'm trying to find safety data 5 sheets for the American Pop Corn product earlier than 6 2001. Do you know how we'd find that out? 7 A. There might be a hard copy at work. 8 Q. There might be? 9 A. Might be. 10 Q. In your office? 01:32 11 A. No. 12 Q. Where would that be at? 13 A. It would be downstairs in the file cabinet. 14 Q. Would you check after today and then let 15 Mr. Benson know so I can take a look at it, too? I 16 just need to know the answer to the question, is there 17 one, yes or no, and if there is one before 2001, can I 18 have a copy of it? 19 A. All right. 20 Q. You prepared the Material Safety Data 01:33 21 Sheets that were given to the American Pop Corn Company 22 for the natural and artificial butter flavoring; is 23 that right? 24 A. Yes. 25 Q. You started at Sensient or Universal in 29 1 1988. What did you do before that? 2 A. I was a medical technologist for 22 years. 3 Q. And do you have a college degree? 4 A. Yes. 5 Q. What is it in? 6 A. Actually, business management. 7 Q. You don't have a science degree, do you? 8 A. No. I have just had schooling for medical 9 technology. 10 Q. All right. Now, when you got to Sensient 01:33 11 in 1988, had you ever prepared a Material Safety Data 12 Sheet before? 13 A. No. 14 Q. Had you ever had training on doing Material 15 Safety Data Sheets? 16 A. No. 17 Q. What kind of training did you get to 18 prepare you to be able to make Material Safety Data 19 Sheets? 20 A. I went to some training at a company here 01:34 21 in town, workshops, seminars, for hazard communication. 22 Q. And you learned that Material Safety Data 23 Sheets are important for customers so that they can 24 know what the hazards are of the products they're 25 buying? 30 1 A. Yes. 2 MR. CALABRESE: Object to form. 3 MR. BENSON: Object to form. 4 Q. And you know how important Material Safety 5 Data Sheets are? 6 MR. BENSON: Ms. O'Connor, take a moment 7 to pause between Mr. Crick's question and your answer so 8 that if counsel have an objection, that we can interpose 9 the objection and we don't talk over each other, okay? 10 THE WITNESS: Okay. 01:34 11 MR. BENSON: Okay. Steve, I apologize; 12 you may need to re-ask that question. 13 MR. CRICK: We're okay. 14 MR. BENSON: Okay, then I'll object to it, 15 because I couldn't remember what it was and I want to 16 preserve my right. 17 Q. You know that Material Safety Data Sheets 18 are very important? 19 MR. BENSON: Object to form. 20 A. Yes. 01:35 21 Q. Now, besides preparing Material Safety Data 22 Sheets, have you ever looked at the actual labels that 23 go on the products that Sensient sold to American Pop 24 Corn Company? 25 A. Yes. 31 1 Q. You know there are labels on them? 2 A. Yes. 3 Q. Are you the person who receives Material 4 Safety Data Sheets from products that Sensient buys? 5 A. One of the people, yes. 6 Q. I was at Sensient's s plant, as you know, a 7 couple weeks ago, and I saw a barrel of a product that 8 actually had a Material Safety Data Sheet taped to it. 9 Have you or Sensient ever considered actually attaching 10 a Material Safety Data Sheet to the buckets of butter 01:35 11 flavoring that go to American Pop Corn Company? 12 A. It's not my job, so I don't know. 13 Q. Do you know, have any Material Safety Data 14 Sheets ever been attached to buckets that went to 15 American Pop Corn? 16 A. I don't know. 17 MR. BENSON: I'm going to object. It 18 assumes that we sell buckets. 19 Q. Well, okay. The packages, the product that 20 came from Sensient to American Pop Corn, do you know if 01:36 21 Sensient ever actually taped, glued, however, attached 22 the Material Safety Data Sheet to that product that 23 went to the plant? 24 A. I don't know. 25 Q. It could have done that, couldn't it? 32 1 A. They could have, yes. 2 Q. Do you know if the labels ever made a 3 reference to the Material Safety Data Sheets? 4 A. No. 5 Q. Now, you said you had some training. What 6 kind of training did you get; did you get any 7 toxicology training? 8 A. I have taken a toxicology course in 9 college. 10 Q. What is toxicology? 01:37 11 A. It just means if -- it's just a health 12 hazard if you're toxic to certain elements. 13 Q. Say that again; I didn't understand what 14 you said. 15 A. It's just a person that would be toxic to 16 elements or compounds or something harmful. 17 Q. Do you do any research at Sensient as to 18 whether or not chemicals, flavors that it's making, are 19 hazardous? 20 A. No. 01:37 21 Q. Is there a toxicologist who actually works 22 at Sensient? 23 A. No. 24 Q. You've heard of toxicology, you know that 25 there actually is a profession called a toxicologist? 33 1 A. Yes. 2 Q. Okay. Have you ever spoken to a 3 toxicologist in any of your years at Sensient about 4 flavors? 5 A. Yes. 6 Q. Who have you spoken to? 7 A. Oh, somebody at the National Toxicology 8 Program. 9 Q. And what was the circumstance that you 10 talked to this person, why were you talking to him? 01:38 11 A. Just asking for information, if they had 12 any more information. 13 Q. Was that having to do with butter 14 flavoring? 15 A. No, it was just chemical information. 16 Q. So you have -- now, is this a company 17 that's based in Indianapolis? 18 A. No. 19 Q. Where are they based at? 20 A. I'm not sure. It might be -- I don't know; 01:38 21 I don't know if it's in Atlanta. 22 Q. Sensient is a pretty big company, isn't it? 23 A. Yes. 24 Q. It's got plants, offices, all around the 25 world; is that right? 34 1 A. Yes. 2 Q. They sell flavors that people in probably 3 every country in the world take in their food or their 4 drinks; is that right? 5 MR. BENSON: Object to form. 6 Q. Is that right? 7 A. Yes. 8 Q. Have you ever heard of any time in any 9 circumstance that Sensient has actually done what's 10 called an animal test to see if the flavors that they 01:39 11 were making would be hazardous to human beings? 12 A. No. 13 Q. Do you know of any circumstance, ever, that 14 Sensient has hired a toxicologist to do a -- what's 15 called a risk assessment to find out if chemical 16 flavors that it was making for food and drinks could be 17 hazardous? 18 A. No. 19 Q. Now, you learned that NIOSH has done this 20 study about butter flavorings and you're familiar with 01:40 21 that? 22 A. Yes. 23 Q. That's been about five years ago that you 24 learned about that? It's been a few years? 25 A. Yeah, it's been a few years. 35 1 Q. In those years that you learned about this 2 hazard in butter flavors, has Sensient done any study 3 at all on this subject? 4 MR. BENSON: Object to form. 5 MR. CALABRESE: Object to torm, object to 6 characterization. 7 A. No. 8 Q. Since you learned about the NIOSH findings 9 at these popcorn plants, has Sensient done any animal 10 studies on its own butter flavor? 01:40 11 MR. BENSON: Object to form. 12 MR. CALABRESE: Object to form. 13 A. No. 14 Q. Have you ever actually given out the NIOSH 15 findings to any of your popcorn customers in your -- 16 with your Material Safety Data Sheet? 17 A. No. 18 Q. Who is your boss? 19 A. John Batz. 20 Q. B-A-T-Z? 01:41 21 A. Yes. 22 Q. Does he have any science training? 23 A. I don't know. 24 Q. Have -- when you learned about this -- I 25 mean, you knew, when you heard about this NIOSH 36 1 finding, that your company made butter flavorings for 2 microwave popcorn companies; right? 3 A. Yes. 4 MR. CALABRESE: Object to the form. 5 Q. And it was a concern for the company, 6 wasn't it? 7 MR. BENSON: Object to form. 8 A. Yes. 9 Q. Did anybody at Sensient lift up the phone 10 and call NIOSH and say, what is this about? 01:41 11 A. No, not that I'm aware of. 12 Q. Did anybody call up a medical doctor and 13 ask if they could consult with Sensient about this 14 topic? 15 A. No. 16 (O'Connor Deposition Exhibit No. 2 was 17 marked for identification.) 18 Q. Let me show you this piece of paper I got, 19 I marked it Exhibit 2. I don't have enough for 20 everybody. 01:42 21 MR. CALABRESE: Fine. 22 Q. You recognize the Sensient logo up at the 23 top? 24 A. Yes. 25 Q. I'm not sure what this is dated. It's 37 1 Bates stamped SFIOO4678, and it says, "Statement 2 regarding butter flavorings." Have you seen this 3 before? 4 A. No. 5 Q. . This says, quote, "Our flavoring 6 products, including our butter flavorings for microwave 7 popcorn, are safe for use in the manufacturing process. 8 The flavor components of the butter flavor provided to 9 American Pop Corn are all naturally-occurring flavors. 10 We will defend ourselves and our products vigorously 01:43 11 against any claims that allege harm to workers during 12 the manufacturing process using our butter flavorings." 13 Did I read that right? 14 A. Yes. 15 Q. My question for you is -- 16 MR. BENSON: Are you going to finish 17 reading? 18 MR. CRICK: At some point. 19 MR. BENSON: Okay. 20 Q. My question is, the statement that says 01:43 21 that "our flavoring products are safe", do you know of 22 any actual test where Sensient looked into that 23 question? 24 A. No. 25 Q. When this statement says, "our products are 38 1 safe for use in the manufacturing process", are you 2 aware of any study anywhere that would confirm what's 3 stated in this Exhibit 2? 4 A. No. 5 MR. BENSON: Object to form. 6 A. No. 7 Q. Now, the statement says that the flavoring 8 compon -- "the flavor components of the butter flavor 9 provided to American Pop Corn are all naturally 10 occurring flavors." The butter flavoring that was sold 01:44 11 to American Pop Corn was natural and artificial butter 12 flavoring; you knew that? 13 A. Can you repeat that again? 14 Q. You know that the butter flavoring that was 15 sold to American Pop Corn was called natural and 16 artificial butter flavoring? 17 A. No. 18 Q. We'll talk about that some more. 19 A. Yeah. 20 Q. The last sentence of this Exhibit 2 says, 01:44 21 "There are not and have never been any allegations of 22 harm to consumers of the butter flavorings in microwave 23 popcorn." I read that right, didn't I? 24 A. Yes. 25 Q. You're the person who deals with the EPA 39 1 for Sensient; is that right? 2 A. Myself and Mike Partlow. 3 Q. Were you aware that the EPA was doing 4 studies as to whether or not -- to what extent there 5 might be a hazard from cooking microwave popcorn in a 6 home? 7 A. No. 8 Q. You're not aware of that? 9 A. No. 10 Q. Has Sensient ever actually done a study to 01:45 11 determine if cooking microwave popcorn and inhaling the 12 diacetyl during that process could be harmful to 13 health; have they ever done a study like that? 14 A. I wouldn't know. 15 MR. CALABRESE: Object to form, object to 16 relevance. 17 Q. Well, there's no reference to it in any 18 Material Safety Data Sheet, though, is there? 19 A. No. 20 Q. You've never seen a study where Sensient 01:45 21 was testing whether or not cooking their microwave 22 popcorn would be hazardous to health? 23 A. No. 24 Q. Sensient has a library, or at least a wall 25 of books up on the second floor; are you familiar with 40 1 that? 2 A. Yes. 3 Q. Do you ever make any reference to those 4 books when you're preparing your Material Safety Data 5 Sheets? 6 A. No. 7 Q. One of the books that was in the library up 8 at Sensient was this, it's called Toxic Substances 9 Control Sourcebook. Have you ever seen that book in 10 the Sensient library? Not that you know of? 01:46 11 A. Not that I know of. 12 MR. BENSON: You need to respond verbally. 13 A nod of the head or the shake of the head doesn't work 14 for the person who's transcribing it. 15 THE WITNESS: Okay. 16 Q. I'm going to read you a sentence out of 17 this book that was at your library, and it's called 18 "Toxicity Testing Procedures", I'll hand it to you 19 after I'm done, you can look at it. It says, quote, 20 "In order to provide the employee with a safe work 01:47 21 environment, the consumer with safe products, and 22 satisfy certain regulations designed to promote these 23 concepts, it is paramount for industry to recognize and 24 appreciate the degree of toxicity associated with its 25 starting materials, its intermediates, and its 41 1 products." I'm going to hand that to you. Which I'm 2 going to ask you -- 3 MR. CALABRESE: Object to foundation, 4 object to hearsay. 5 Q. -- if you agree with that? It's that first 6 sentence in the upper left. 7 A. Yes. 8 Q. You agree with that, don't you? 9 A. Yes. 10 Q. All right. Regarding the butter flavoring 01:48 11 that we're here for today, do you know of any tests 12 that Sensient has ever done to recognize and appreciate 13 the degree of toxicity associated with its butter 14 flavoring? 15 A. No. 16 MR. BENSON: Object to form. 17 Q. Go ahead and answer it again. 18 A. No. 19 Q. Now, the next sentence on here, and I'll 20 hand this to you again, it's important in this case; it 01:49 21 says, quote, "Essentially, all things can be toxic, and 22 it is basically the amount of material absorbed by an 23 individual which determines the toxicity of the 24 substance"; you understand that? 25 A. Yes. 42 1 Q. I mean, if you take one or two aspirins, 2 it's good for you; if you take more aspirins, it can 3 hurt you? 4 A. Yes. 5 Q. Do you know of any studies that Sensient 6 has ever done to determine if there is a safe or unsafe 7 level of exposure to diacetyl? 8 A. No. 9 Q. Now, this book also says, "Specific 10 toxicity tests are needed to critically evaluate the 01:50 11 toxicity and potential hazard of a substance." Hand it 12 to you; it's that sentence in the upper right -- 13 MR. CALABRESE: Continuing objection as to 14 foundation and hearsay. 15 Q. You agree with that, don't you? 16 A. Yes. 17 MR. BENSON: Are you also going to read 18 the next sentence? 19 MR. CRICK: You're going to have plenty of 20 time to do anything you want to do. But I will read the 01:50 21 next sentence because Mr. Benson pointed it out to me. 22 It goes on to say, "Unfortunately, no single test or set 23 of standardized tests will provide all necessary toxicity 24 data. Toxicity testing for each substance requires 25 careful planning so that the data produced can be 43 1 transplanted into meaningful results which then form the 2 basis of guidelines for handling, labeling, use, and 3 disposal of the substance." You would agree with that as 4 the person responsible for preparing Material Safety Data 5 Sheets for Sensient? 6 MR. BENSON: Object to form. 7 MR. CALABRESE: Same objection as before, 8 form and foundation. 9 MR. BENSON: You can answer. 10 A. Yes. 01:52 11 Q. Thank you. We'll go ahead and mark that as 12 Exhibit 3 since we showed it around so much. 13 (O'Connor Deposition Exhibit No. 3 was 14 marked for identification.) 15 MR. CALABRESE: Could I see Exhibit 3 for 16 a minute? 17 MR. CRICK: Sure. 18 MR. CALABRESE: Thank you. 19 Q. Is there anybody besides you, Ms. O'Connor, 20 that prepares the Material Safety Data Sheets for 01:52 21 customers? 22 A. When I'm on vacation or in my absence. 23 Q. Okay. But you're the primary person and 24 you have been for a number of years? 25 A. Yes. 44 1 Q. When you're asked to do a Material Safety 2 Data Sheet for a product -- 3 A. Uh-huh. 4 Q. -- do you do any research; do you go to a 5 library, do you look up any books, do you do any 6 research about the products? 7 A. I use the supplier MSDS's, and/or other 8 regulatory agency information. 9 Q. Okay. So you use the information that your 10 supplier gives to you? 01:53 11 A. Yes. 12 Q. Why is that important? 13 A. They're the ones that manufactured or made 14 the product. 15 Q. Well, I don't understand. It's your 16 product, but you're looking up what some of the 17 ingredients for your products are? 18 A. Yes. 19 Q. Okay. Because you rely on whoever is -- 20 you're buying a product from to give you accurate 01:53 21 health information? 22 A. Yes. 23 Q. Just like American Pop Corn relied on 24 Sensient to give -- to get accurate information about 25 the hazards of the butter flavoring? 45 1 MR. BENSON: Object to form. 2 MR. CALABRESE: Object. 3 A. Yes. 4 Q. So besides looking at the Material Safety 5 Data Sheets from customers, do you do anything else? 6 MR. BENSON: Do you mean suppliers as 7 opposed to customers? 8 MR. CRICK: Yeah. Let me rephrase it. 9 Q. Besides looking at the Material Safety Data 10 Sheets for your suppliers, do you do any other 01:54 11 research? 12 A. Well, I use the FEMA flavor and fragrance 13 data sheets if they're available. 14 Q. Now, the fragrance -- flavor and fragrance 15 data sheets from FEMA, are those the paper copies you 16 were talking about earlier? 17 A. Yes. 18 Q. Did you know that FEMA has a computer 19 database that its member can get access to to do 20 research? 01:55 21 A. Yes. 22 Q. Do you have access to that? 23 A. No. 24 Q. Does anybody at the Sensient plant have 25 access to that FEMA database? 46 1 A. Yes. 2 Q. Who would that be? 3 A. Well, the chemists. 4 Q. When you're doing your research for a 5 Material Safety Data Sheet, have you ever asked if you 6 could -- if you could do the FEMA search or if someone 7 would do the FEMA search for you? 8 A. No. 9 Q. Is that because you figured you had all the 10 important FEMA information in your files already? 01:56 11 A. Yes. The information sources that I rely 12 on, yes. 13 Q. Does Sensient have a written hazard 14 communication program? 15 A. Yes. 16 (O'Connor Deposition Exhibit No. 4 was 17 marked for identification.) 18 Q. Let me show you Exhibit 4 and ask if that's 19 a copy of Sensient's written Hazard Communication 20 Program. 01:57 21 A. Yes. 22 Q. And on the first cover page of this 23 Exhibit 4, is that -- it says, "Written by", and 24 there's a signature down below. Is that your 25 signature? 47 1 A. Yes. 2 Q. And down below, it says, "Approved". Whose 3 signature is that? 4 A. Mike Partlow. 5 Q. Now, if you turn to page three, numbered 6 page three, there's a section D called "Hazard 7 Determination"; do you see that? 8 A. Yes. 9 Q. The last sentence of that first paragraph, 10 it says, "All known hazards are listed in these 01:59 11 Material Safety Data Sheets and the appropriate warning 12 statements determined." Did I read that right? 13 A. Yes. 14 Q. Is that what you're supposed to do, is 15 you're supposed to put all known hazards on the 16 Material Safety Data Sheets? 17 A. In a certain percent, yes. 18 Q. When you mean, at a certain percent; what 19 does that mean? 20 A. OSHA requirements are if the material's in 01:59 21 the product at one percent and/or one-tenth percent, 22 it's a carcinogen, then you have to put that 23 information on the MSDS. 24 Q. But what you're supposed to put on it is 25 all known hazards for those ingredients? 48 1 A. If there's something that shows it's going 2 to go over the PEL exposure limit and/or if it's going 3 to do harm to somebody. 4 Q. Now, you said a buzz word or something 5 there that the jury may not know what it is; you said 6 if it goes over the PEL. Is that permissible exposure 7 limit? 8 A. Yes. 9 Q. Most of the flavor chemicals that are used 10 at Sensient don't actually have a PEL, do they? 02:00 11 MR. BENSON: Object to form. 12 A. Some do and some don't. There's a 13 percentage. 14 Q. There's a lot of -- there's a lot of 15 products made a sensient where the ingredients don't 16 have a PEL? 17 MR. BENSON: Object to form. 18 Q. Isn't that true? 19 A. Yes. 20 Q. And that doesn't mean that they're safe or 02:00 21 not safe, that just means that they haven't been 22 studied enough to determine if there's a permissible 23 exposure level; you know that? 24 A. Yes, yes. 25 Q. But with regard to all the information that 49 1 is available to you, you're supposed to put all that on 2 the Material Safety Data Sheets that go to the 3 customers? 4 A. Yes. 5 MR. BENSON: Object to form. 6 Q. Now, down below, there's a sentence or a 7 paragraph that starts with "Material Safety Data Sheets 8 for raw materials"; do you see that? 9 A. Yes. 10 Q. The second sentence in that paragraph says, 02:01 11 quote, "An extensive program has been developed for 12 entry, storage, and recall of this data." Did I read 13 that right? 14 A. Yes. 15 Q. What is this extensive program? 16 A. It just means we request MSDS's from the 17 supplier, we put the raw material in MSDS's into the 18 computer system. 19 Q. So the information that you get from your 20 suppliers, you put on your computer system? 02:01 21 A. Yes. 22 Q. Is that the extensive program? 23 A. No. We have hard copies of them, also. 24 Q. Okay. So is that the extensive program? 25 A. Yes. 50 1 Q. Now, you don't have a science or technical 2 background in toxicology or chemical -- chemical 3 hazards, do you? 4 A. I have worked with chemicals for 5 approximately forty years. 6 Q. As a medical technologist, some of the 7 chemicals that you worked with in medical technology 8 were hazardous? 9 A. Yes. 10 Q. Okay. You don't hold yourself as an expert 02:02 11 in how to determine whether or not a particular 12 chemical is a hazard, though? 13 MR. BENSON: Object to form. 14 Q. Do you? 15 A. I'm not an expert, no. 16 Q. I mean, you wouldn't be able to do your own 17 study to determine whether or not a chemical used by 18 Sensient was safe or a hazard, would you? 19 A. No. 20 Q. Would you mind holding that paper down a 02:03 21 little bit for our video person? 22 A. Sorry. 23 Q. No, that's okay. Thank you. Is there 24 anybody who actually works at Sensient who has that 25 kind of special knowledge where they know how to do 51 1 studies to determine if Sensient chemicals are safe or 2 a hazard? 3 MR. CALABRESE: Object to form. 4 MR. BENSON: Object to form. 5 A. I don't know the background of the people 6 that work there so I'm not sure. 7 Q. You've never heard of anybody that was? 8 A. No. 9 (O'Connor Deposition Exhibit No. 5 was 10 marked for identification.) 02:03 11 Q. Show you Exhibit No. 5. Could you tell me 12 what is this Exhibit No. 5, please. 13 A. It's a Material Safety Data Sheet. 14 Q. Now, is this a safety data sheet that you 15 would have prepared? 16 A. Yes. 17 Q. When you're preparing a Material Safety 18 Data Sheet, I know you don't do any original research 19 on your own; right? 20 A. Right. 02:05 21 Q. When you're told to prepare a Material 22 Safety Data sheet for a particular product, what is it 23 that you do? 24 A. I look at the raw material summary; in 25 other words, all the ingredients that compose that 52 1 product. 2 Q. And? 3 A. And then I -- if it's in there at a 4 percentage, either one-tenth or one percent, then I 5 gather all that information to put on the finished 6 product MSDS. 7 Q. When you say you gather all that 8 information, what is it that you actually do? 9 A. I act -- I will go in to the computer, look 10 at the raw material information that's in the computer 02:05 11 and/or go look at the hard copy. 12 Q. So it's more than just typing in the names 13 of the ingredients and a Material Safety Data Sheet 14 just automatically being spit out? 15 A. Yes. 16 Q. You actually put some thought into each one 17 of them? 18 A. Oh, yes. 19 Q. And you actually go to the trouble of 20 looking in your files to see what it says? 02:06 21 A. Yes. 22 Q. And then you look to see what information 23 you have, and then you put that information on your 24 Material Safety Data Sheet? 25 A. Yes. 53 1 Q. So this Exhibit 5 is for a -- it says, 2 "Butter N&A DB". Do you know what that means? 3 A. Natural and artificial and dry blend. 4 Q. Okay. So this is a powder? 5 A. Yes. 6 Q. And you list right on the middle of the 7 paragraph, or the middle of the page, there's a section 8 called "Hazardous ingredients"; do you see that? 9 A. Yes. 10 Q. And there's only one hazardous ingredient 02:07 11 that you listed on here. Which one is that? 12 A. Diacetyl. 13 MR. CALABRESE: Objection. It also lists 14 nuisance dust. Rule of completeness. 15 Q. And nuisance dust? 16 A. Yes. 17 Q. Okay. And the only one by actual name is 18 diacetyl? 19 A. Yes. 20 MR. CALABRESE: Object to form on that. 02:07 21 Q. Now, this is from March of 2004; is that 22 when this was prepared? 23 A. Yes. 24 Q. And it looks like it was printed out at 25 11:38 and 49 seconds? 54 1 A. Yes. 2 Q. Is that when it would have been printed off 3 your computer? 4 A. Yes. 5 Q. Now, the second page, there's a section, 6 Roman Numeral VII, called "Health hazard data", and you 7 did research and concluded that this was the 8 information that needed to go on the safety data sheet; 9 is that right? 10 A. Yes. 02:08 11 Q. Okay. And it says on here, "Health 12 hazards, (acute and chronic): Inhalation of vapors 13 from this product may cause respiratory irritation and 14 irreversible obstructive lung disease. Medical 15 monitoring of employees exposed to airborne vapors, 16 including periodic respiratory system evaluation, 17 should be conducted under the direction of a qualified 18 medical doctor. Skin absorption will occur under 19 direct contact with the product. Ingestion of small 20 quantities is not harmful. Ingestion of large 02:09 21 quantities may cause upset stomach." Did I read that 22 right? 23 MR. BENSON: Object to form. 24 A. Yes. 25 Q. And then you went on to say below that, 55 1 quote, "Warning summary: Dust may be irritating to 2 skin, eyes, and respiratory passages. Vapor inhalation 3 may cause irreversible obstructive lung disease. " Did 4 I read that right? 5 A. Yes. 6 Q. And you did the research and concluded that 7 this was the information that needed to go on this 8 Material Safety Data Sheet? 9 MR. CALABRESE: Object to form. 10 A. Actually, this is one that I put together, 02:09 11 along with some other input from corporate. We were 12 deciding on the language to use on the MSDS; that's why 13 the markings are in there. 14 Q. Okay. So is this the language that was 15 used? 16 MR. BENSON: Object to form. 17 A. For the final? No. 18 Q. You've described putting together Material 19 Safety Data Sheets in this deposition, and you said 20 that you were the person who put them together. I 02:10 21 didn't hear you say that as a part of your process, you 22 sent the Material Safety Data Sheet to corporate. Is 23 that something you always do when you put together a 24 safety data sheet? 25 A. No. 56 1 Q. This was an unusual circumstance? 2 A. Yes. 3 Q. Who did you send this safety data sheet to? 4 A. I didn't. 5 Q. Somebody took it? 6 A. No. 7 Q. What happened? 8 A. We met as a group, our -- certain 9 employees. 10 Q. Which employees? 02:11 11 A. Some from our plant, some from corporate 12 talked about the language to go on the MSDS. 13 Q. Well, who were those persons? 14 A. It's been a while. Names? 15 Q. Yeah. As best you can. 16 A. Brent Ness, N-E-S-S, John Batz, Ben Wilson. 17 We had a conference call. It was Kent Schmidt. 18 Q. Say that again? 19 A. Kent Schmidt. Corporate legal. 20 Q. Chris Lawler? 02:12 21 A. Chris Lawler. Paul Benson. 22 Q. He's shaking his head no, so he wasn't 23 there. 24 MR. BENSON: Not on this one. 25 A. I don't remember if there was other outside 57 1 counsel or not. 2 Q. Okay. So with the scratch that's on here, 3 is this the final form that this one took? 4 A. No. 5 Q. You deleted some of the information? 6 A. We restated some of the information. 7 Q. Restated it? 8 A. And deleted some, too. 9 Q. Now, the point of this exercise was to put 10 together a fair and accurate and truthful Material 02:12 11 Safety Data Sheets for your customers. Did you agree 12 with deleting some of this information? 13 A. Yes. 14 Q. You did? When you had this group session, 15 did anybody suggest, hey, let's do our own study? 16 A. No. 17 Q. Did anybody call NIOSH and say, would you 18 explain this study to us, or we disagree with your 19 study? 20 A. No. 02:13 21 Q. They just said, we don't agree and we're 22 not going to tell about it; is that what happened? 23 MR. BENSON: Object to form. 24 A. No. 25 Q. Well, you didn't use the information, so 58 1 what was stricken? 2 MR. CALABRESE: Object to form. 3 MR. BENSON: Object to form. 4 A. I would have to look at the file on this 5 MSDS to -- 6 (O'Connor Deposition Exhibit No. 6 was 7 marked for identification.) 8 Q. Let me show you this safety data sheet. 9 Exhibit 6, is this a Material Safety Data sheet that 10 you put together? 02:14 11 A. Yes. 12 Q. And this is dated October 28, 2004? 13 A. Yes. 14 Q. And this is for butter and natural and 15 artificial dry blend? 16 A. Yes. 17 Q. This isn't the same as -- the information 18 you provided in this one is not the same as Exhibit 5, 19 is it? 20 A. No. 02:15 21 Q. If you look at the "Hazardous ingredients, 22 Section II"; do you see that? 23 A. Yes. 24 Q. Now, in Exhibit No. 5, you listed diacetyl 25 in that one, didn't you? 59 1 A. Yes. 2 Q. Is diacetyl listed in Exhibit 6? 3 MR. CALABRESE: Object to form. 4 A. No. 5 Q. Well, it says -- what it says here on 6 Exhibit No. 6 is, "The identity of the individual 7 components of this property is propriority and 8 information is considered a trade secret pursuant to 29 9 CFR 1910.1200"; is that right? 10 A. Yes. 02:16 11 MR. BENSON: I think you meant to say 12 product instead of property. 13 THE WITNESS: Product. Oh. 14 MR. BENSON: "Components of this product". 15 Now, if you look at the bottom right hand of 16 this document, now, on every page, this says -- what does 17 it say down there in big letters? 18 A. "Confidential, attorneys' eyes only". 19 Q. Now, on the next page, under the Section 20 VII, "Health hazard data", you did the research and you 02:17 21 were given the green light to put this information in 22 the safety data sheet; is that right? 23 MR. CALABRESE: Object to form. 24 MR. BENSON: Object to form. 25 A. Yes. 60 1 Q. Now, this one says, inhalation -- strike 2 that. This one says, "Health hazards, (acute and 3 chronic): Inhalation of vapors and/or dust from this 4 product may cause respiratory irritation. Chronic 5 inhalation exposure may result in airway injury or lung 6 disease. Skin absorption will occur under direct 7 contact with the product. Dust may cuz -- may cause 8 irritation to the eyes." Below that, it says, "Warning 9 summary: Dust and/or vapors may be irritating to skin, 10 eyes, and respiratory passages, may cause air way 02:18 11 injury or lung disease"; did I read that right? 12 A. Yes. 13 Q. Now, this isn't the same as what you put 14 together for Exhibit 5, is it? 15 A. No. 16 Q. In fact, on Exhibit 5 under that warning 17 summary, you said, "Vapor inhalation may cause 18 irreversible lung disease", and that sentence didn't 19 make its way into Exhibit 6, did it? 20 A. No. 02:18 21 Q. Exhibit 5 says, "Inhalation of vapors from 22 this product may cause respiratory irritation and 23 irreversible obstructive lung disease." Do you see 24 that? 25 A. Yes. 61 1 Q. And on Exhibit 6, the one you were given 2 permission to send out, that sentence excludes the 3 words "and irreversible obstructive lung disease", 4 doesn't it? 5 MR. BENSON: Object to form of the 6 question, misstates. Subject thereto, you can answer. 7 Q. Let me rephrase the question. On Exhibit 8 6, that first sentence excludes the words that are in 9 Exhibit 5 which are "irreversible obstructive lung 10 disease"; is that right? 02:19 11 A. Yes. 12 Q. Now, on Exhibit 6, you have a section 13 called "Section X: Personal protection". Do you see 14 that? 15 A. Yes. 16 Q. And what you said in this Material Safety 17 Data Sheet is, quote, "Respiratory protection: Control 18 worker exposures to below detectible levels. However, 19 if an effective ventilation system is not in use, use a 20 NIOSH approved respirator for organic vapors and/or 02:20 21 dust"; did I read that right? 22 A. Yes. 23 Q. And that's -- that's the recommendation 24 that you're giving out for this product in October of 25 '04? 62 1 MR. BENSON: Object to form. 2 A. Yes. 3 Q. Then the next section below says, 4 "Ventilation: Local exhaust as required to capture all 5 airborne dusts and vapors, mechanical"; did I read that 6 right? 7 A. Yes. 8 Q. What is a local exhaust? 9 A. It's like your elephant trunks, is an 10 example. It goes over the -- or a closed system of 02:21 11 some sort. 12 Q. So a general exhaust would be like what we 13 have in a -- just a normal room with a furnace that 14 blows air in and there's a return air vent? 15 A. Right. 16 Q. But a local exhaust is right at the point 17 where the material is being used, and there's a hose 18 that comes down right over the tank; those are what you 19 called an elephant trunk? 20 A. Yes. 02:21 21 Q. And the point of that local exhaust is it 22 vacuums up the fumes right at that point so that people 23 aren't exposed to it; is that right? 24 A. Yes. 25 Q. And so that's what you're telling people in 63 1 this safety data sheet they need to use around this 2 product? 3 A. Yes, as in addition to. 4 Q. Well, of course. The most important thing 5 is "control worker exposures to below detectible 6 levels"; is that -- that's right? 7 A. Yes. 8 Q. I want to ask you about an earlier Material 9 Safety Data Sheet. Why don't we go ahead, she's got to 10 switch tape, we'll go ahead and take a break for a 02:22 11 minute. 12 THE VIDEOGRAPHER: We're going off video 13 tape record at 2:23 p.m. 14 (Recess taken.) 15 THE VIDEOGRAPHER: We're back on video 16 tape record. Today's date is June 7, 2006; the time is 17 2:32 p.m., and this is tape No. 2 in the deposition of 18 Libby O'Connor. 19 Q. Ms. O'Connor, we're looking at Exhibit 5 20 and 6 again, just for a couple more minutes. So 02:32 21 Exhibit 5, in the health hazard data section, you use 22 the words, "irreversible obstructive lung disease" in 23 two different places; right? 24 A. Yes. 25 Q. The bottom sentence said, "Vapor inhalation 64 1 may cause irreversible obstructive lung disease." That 2 sentence didn't make its way into Exhibit No. 6? 3 MR. BENSON: Object to form. 4 A. Yes. It didn't. 5 Q. And just so I'm correct, was any doctor, 6 any toxicologist, any expert from NIOSH, consulted 7 about this issue of irreversible lung disease? 8 A. No. 9 Q. So somebody put it on this draft, 10 Exhibit 5, but the company said, don't put that on 02:33 11 there? 12 MR. BENSON: Object to form. 13 A. Yes. A group of individuals, yes. 14 Q. Who was it who made the final decision to 15 take that off? 16 A. That group of individuals that I gave you 17 the names -- lawyer. 18 Q. You all voted together to take it off? 19 A. Yes. It was kind of a mutual decision. 20 Q. One of the things that Sensient was 02:33 21 concerned about was lawsuits; is that right? 22 MR. BENSON: Object to foundation. 23 A. I don't know. 24 Q. I didn't see the word on Exhibit 5, 25 bronchiolitis obliterans. That's the disease that 65 1 NIOSH is finding in people at popcorn plants; isn't it? 2 MR. BENSON: Object to form. 3 MS. MIDDELHOFF: Object to the form. 4 A. Yes. 5 Q. And this is a butter flavoring for a 6 popcorn plant. Is there some reason -- well, just let 7 me ask you this: Why isn't the word bronchiolitis 8 obliterans on this Material Safety Data Sheet? 9 MR. BENSON: Object to form. 10 A. It wasn't in my reference material for me 02:34 11 to put it on there. 12 Q. Well, by 2004, NIOSH had come out with 13 their stuff, it published in the New England Journal of 14 Medicine; you knew all about the NIOSH studies? 15 A. Yes. 16 MR. BENSON: Object to form. 17 Q. Why wasn't anything mentioned in the 18 Material Safety Data Sheet about NIOSH's findings of 19 bronchiolitis obliterans when working around butter 20 flavoring with diacetyl? 02:35 21 MR. BENSON: Object to form. 22 A. There really wasn't any valid evidence that 23 -- to support all this. 24 Q. The federal government was not valid 25 evidence? 66 1 A. Yes. 2 MR. CALABRESE: Object, argumentative. 3 MR. BENSON: Object to form. 4 Q. You said there is no valid evidence -- 5 MR. CALABRESE: Objection. 6 Q. -- is that what you just said? 7 MR. CALABRESE: Objection, argumentative. 8 MR. BENSON: Her statement is in the 9 record. Ask her a question. 10 Q. Is that what you just said? 02:35 11 MR. BENSON: Same objection. 12 Q. Is that what you just said, there is no 13 valid evidence? 14 MR. BENSON: Same objection. 15 Q. You can answer the question, please. 16 MR. BENSON: You already have, but he 17 wants you to do it again. 18 A. Well, I don't know if I would use the word 19 valid. Maybe I didn't use the right word. 20 Q. Well, what's the right word? 02:36 21 A. There's still studies going on. I mean, 22 there was no -- there wasn't any -- actually proven 23 that it was diacetyl. 24 Q. I see. But you haven't -- your company 25 hasn't done any studies of its own? 67 1 MR. BENSON: Object to form. 2 A. No. 3 Q. And didn't even call NIOSH about this? 4 MR. BENSON: Object to form. 5 Q. And even today, you've never -- 6 THE REPORTER: I didn't get an answer to 7 that last question. 8 Q. Can you give an answer to that last 9 question? 10 A. No. 02:36 11 Q. And even today, your company has never done 12 any studies on whether your butter flavoring is safe or 13 a hazard? 14 MR. BENSON: Object to form. 15 A. No. 16 Q. What evidence do you need to put that in 17 the Material Safety Data Sheet for a customer to see? 18 MR. BENSON: Objection, calls for 19 speculation. 20 MR. CALABRESE: Also argumentative. 02:37 21 Object to form. 22 THE WITNESS: Do I answer? 23 MR. BENSON: Yes. Oh, yeah. Remember, 24 the only time you don't answer is if I instruct you not 25 to answer, okay? If we just make objections, you still 68 1 have to answer the question. 2 A. Again, I used the language off of and the 3 information from our raw material suppliers and the 4 environmental statement or -- the FEMA statements, data 5 sheets. 6 Q. So you were told by the people at Sensient 7 to use the information that FEMA gave to you as opposed 8 to the information that NIOSH gave to you? 9 A. No. 10 MR. BENSON: Object to form. 02:38 11 Q. You decided on your own to use the 12 information that FEMA gave instead of the information 13 that NIOSH gave? 14 A. No. 15 Q. Well, who made that decision? Somebody 16 made the decision to use -- that the FEMA material was 17 reliable and the NIOSH material was not. Who decided 18 that? 19 MR. BENSON: Object to form. 20 A. I didn't really get any FEMA information 02:38 21 data sheets until December of 2005, so -- 22 Q. What? What are you talking about? You 23 didn't get any information from FEMA until 2005? 24 A. The actual ingredient data sheet. 25 (O'Connor Deposition Exhibit No. 8 was 69 1 marked for identification.) 2 Q. Really. Let me show you Exhibit No. 8. 3 This came out of the Sensient files. I think I know 4 the reason why you didn't see this before. Look at the 5 bottom right hand and tell me, what does it say? 6 MR. CALABRESE: Object to the form of the 7 question. 8 MR. BENSON: Objection. 9 Q. What does it say? 10 MR. BENSON: Don't answer that question. 02:39 11 Q. Tell me what it says. 12 MR. BENSON: Don't answer it. I'm 13 instructing the witness not to answer. 14 Q. I'll say it. Down at the bottom, Ms. 15 O'Connor, it says, "Confidential, attorneys' eyes 16 only". 17 MR. BENSON: And in the remarked 18 documents, Mr. Crick, does it still say that? 19 MR. CRICK: When I raised it with the 20 judge, you cleaned it up. What can I say? 02:39 21 MR. BENSON: What you -- what you -- 22 Q. This copy says, "Attorneys' eyes only", and 23 there's no other explanation as to why she hasn't seen 24 it. 25 MR. BENSON: That's not true, that's not 70 1 true. 2 MR. CRICK: Ms. O'Connor -- you guys can 3 write -- play all these games you want to play. 4 MR. BENSON: You're badgering -- you're 5 badgering the witness and being absolutely unfair with 6 her. 7 MR. CRICK: I'm not badgering the witness. 8 You want to play the game. 9 MR. BENSON: I'm not playing any games 10 with you. 02:39 11 MR. CRICK: Apparently some did. 12 MR. BENSON: To the extent someone is, I 13 would suggest that you should look at yourself. 14 Q. Ms. O'Connor, this is a flavor or fragrance 15 ingredient data sheet with the CAS number of 431-03-8 16 for the chemical diacetyl. This was produced to me by 17 Sensient. Have you seen this before? 18 A. The one that I saw was similar to this, but 19 it's not this particular one. 20 Q. So you didn't look at this particular 02:40 21 document when you were putting together your Material 22 Safety Data Sheets for diacetyl products? 23 A. No. 24 Q. Now, if you look in the bottom left, and 25 I've got the cover letter, it shows a date of 71 1 September 2nd of 1985; do you see that in the bottom 2 left, 09-02-85? 3 A. Yes. 4 Q. You were -- this is even before you came to 5 Sensient? 6 A. Yes. 7 Q. I want to show you Exhibit No. 9. I 8 skipped 7 before, but let me show you Exhibit 7. 9 Actually, let me have that back. Since I skipped 7, it 10 will be confusing. We'll mark this as Exhibit No. 9. 02:41 11 (O'Connor Deposition Exhibit No. 9 was marked 12 for identification.) 13 Q. Is this a Material Safety Data Sheet for 14 the butter flavoring, natural and artificial dry 15 blends, that you prepared for American Pop Corn? 16 MR. BENSON: Object to form. 17 A. Yes. 18 Q. If you look at the second page, there's a 19 Section VII, "Health hazard data"; do you see that? 20 A. Yes. 02:42 21 Q. It says, "Health hazards, acute and 22 chronic: Contact of product with skin and eyes may 23 result in a mild irritation reaction. Irritation may 24 case irritation --" or excuse me, "inhalation may cause 25 irritation to respiratory passages." Did I read that 72 1 right? 2 A. Yes. 3 Q. Now, this was supposed to be an 4 accumulation of all the information that you had 5 received from your suppliers and from FEMA and Environs 6 and whatever research you had done? 7 A. Yes. 8 MR. BENSON: Objection. 9 Q. Would you look again at Exhibit No. 8, the 10 flavor or fragrance ingredient data sheet? And on -- 02:43 11 there's a section called "Human health effects data" on 12 page two, and there's a section in there called 13 "Inhalation"; do you see that? 14 A. Yes. 15 Q. What is the first word that's written in 16 this section? 17 A. "Harmful". 18 Q. Is the word harmful in your Material Safety 19 Data Sheet for American Pop Corn? 20 A. No. 02:44 21 Q. Now, if you look at the rest of that 22 sentence, in the FEMA document, the last part says, 23 "capable of producing systemic toxicity"; do you see 24 that? 25 A. Yes. 73 1 Q. Is that in your Material Safety Data Sheet? 2 A. No. 3 Q. If you look at the next page -- 4 MR. CALABRESE: The rule of completeness, 5 also, FEMA FFIDS says, "High concentrations may cause 6 irritation of respiratory tract." Also, the FFIDS does 7 not contain the words bronchiolitis obliterans. 8 MR. CRICK: Would you be quiet? If you 9 want to be rude, go to another room. You can ask 10 questions on your turn, but you're not going to say 02:45 11 stuff on the record like that. 12 Q. Now, if you'd turn to page three, there's a 13 section called V, "Laboratory animal toxicological 14 data"; do you see that? 15 A. Yes. 16 Q. There's a section under there called 17 "Inhalation", and there's a reference to a rat study; 18 do you see that? 19 A. Yes. 20 Q. It says, "Inhalation: 27 milligrams per 02:45 21 liter, six hours, rat: Death." Do you see that? Do 22 you see that? 23 A. Yes. 24 Q. And it goes on to say, "3.5 milligrams per 25 liter, six hours, rat: Labored breathing and gasping; 74 1 weight gain following termination of exposure." Did I 2 read that right? 3 A. Yes. 4 Q. Did you mention that in your Material 5 Safety Data Sheet for American Pop Corn? 6 A. No. 7 (O'Connor Deposition Exhibit No. 10 was 8 marked for identification.) 9 Q. Let me show you Exhibit No. 10. Exhibit 10 No. 10 was produced to me by Sensient, it's a fax from 02:47 11 Citrus and Allied Essences, Limited, for the chemical 12 diacetyl. This is the type of information that you 13 would have looked to to put together your Material 14 Safety Data Sheet; is that right? 15 A. Yes. 16 Q. Who is Rich Eberle? 17 A. He's a purchasing employee. 18 Q. Okay. Now, if you look at the last page of 19 this safety data sheet from Citrus and Allied, it says, 20 "Date revised, July 22, 1998", is when they first 02:48 21 started putting this safety data sheet out; do you see 22 that? 23 MR. BENSON: Object to form. 24 Q. Do you see that? 25 A. Yes, yes. 75 1 Q. And it says, "Date prepared, 10-3-01". Do 2 you see that? Do you see that? 3 A. You mean the printed date? 4 Q. Yeah, printed. 5 A. Yes. 6 Q. That's the exact, same date of your 7 Material Safety Data Sheet for American Pop Corn; is 8 that right? 9 MR. BENSON: I think he's referring to 10 Exhibit 9. 02:49 11 MR. CRICK: Yes. 12 A. Yes. 13 Q. Now, if you'd look at the third page of the 14 Citrus and Allied safety data sheet, under the Section 15 X, "Toxicological information", there's a section 16 called, "Health hazards, acute and chronic", and below 17 that, it says, "Inhalation". What's the first word 18 listed in the Citrus and Allied safety data sheet? 19 A. "Harmful". 20 Q. And I think we already established, that 02:50 21 word is not in your Material Safety Data Sheet? 22 A. Yes. 23 MR. CALABRESE: I'm going to object on 24 rule of completeness. 25 Q. Now, Citrus and Allied, on the next page -- 76 1 excuse me, on the -- not the next page, the page 2 previous, the front of the Material Safety Data Sheet, 3 down at the bottom, there's a Section 7 called 4 "Exposure controls/personal protection"; do you see 5 that? 6 A. Yes. 7 Q. And it says in the second sentence, 8 "Protection: NIOSH approved respiratory protection may 9 be required when the material is rated toxic by 10 inhalation or if the material is to be used in a 02:51 11 confined area"; do you see that? 12 A. Yes. 13 MR. BENSON: Object to form. 14 MR. CALABRESE: Same objection of 15 completeness. 16 Q. Is that information in your Material Safety 17 Data Sheet for American Pop Corn? 18 A. The wording is different, but it still says 19 respiratory protection. 20 Q. Yours says "NIOSH approved for nuisance 02:51 21 dust." 22 A. Yes. 23 Q. What is a nuisance dust? 24 A. Particulates in the air. 25 Q. And what is the word nuisance, what does 77 1 that mean? 2 A. If it cause -- it's just irritating 3 particle. 4 Q. Is that the same as meaning that it's 5 harmful? 6 A. Depends on what the substance is. 7 Q. What nuisance dusts are harmful, ma'am? 8 MR. BENSON: Objection, vague. Answer if 9 you can. 10 MR. CALABRESE: I'll object to form. 02:52 11 A. I'm not sure how to answer it. 12 Q. Do you know of any nuisance dusts that are 13 harmful? 14 MR. CALABRESE: Same objections. 15 A. Well, it -- it just depends on the chemical 16 or material or whatever. 17 Q. I'm asking you particularly, can you tell 18 me a chemical that is a nuisance dust that is also 19 harmful? 20 A. It could be a group of chemicals in a 02:53 21 powdered form. 22 Q. Why didn't you use the word harmful here, 23 on the American Pop Corn Material Safety Data Sheet? 24 A. I don't know. 25 Q. Do you know if any other suppliers told 78 1 Sensient that diacetyl wasn't harmful? 2 MR. BENSON: Object to form. 3 A. I would have to look at the MSDS's from the 4 suppliers. 5 (O'Connor Deposition Exhibit No. 11 was 6 marked for identification.) 7 Q. Let me show you Exhibit No. 11. 8 A. This is to me. 9 Q. I'm sorry; this is hard the read. This is 10 how I got it, too. 02:54 11 A. I can't read it. 12 Q. Exhibit 11 is a Material Safety Data Sheet 13 dated February of 2001 from Sigma-Aldrich; you have 14 heard of Sigma-Aldrich? 15 A. Yes. 16 Q. And it says the product is diacetyl. Look 17 at the second page, okay? You can look at mine. 18 Mine's highlighted; it's easier to get to. In the 19 right hand under "Inhalation"; do you see that? 20 A. Uh-huh. 02:55 21 Q. Can you read that out loud? 22 A. Actually, is it the fourth -- 4,000 -- 23 MR. CRICK: Can I see that? 24 A. 4,000 -- 25 MR. BENSON: No, no, he's above that, he's 79 1 above that. 2 A. Which one. Oh. "Material may be 3 irritating to mucous membranes and upper respiratory 4 tract. Harmful if inhaled." 5 Q. Thank you. And then down -- can I see that 6 again, please? 7 MR. CALABRESE: Can we have that? 8 MR. CRICK: In a minute. 9 MR. CALABRESE: Okay. 10 Q. And then down below, there's another 02:55 11 section that I've highlighted for you to make it easier 12 to read under. 13 A. That's what I can't read. 14 Q. Under "Toxicity data", it says, 15 "Inhalation: Rat, 4,000 milligrams, LD 50"; do you see 16 that? 17 A. Barely, yes. 18 MR. BENSON: I'm going to object. 19 Q. And if you want to read it, go ahead. I 20 think it's "Milligrams per milliliter, rat". 02:56 21 MR. BENSON: It was the last part that I 22 -- 23 Q. Okay. "4,000 milligrams per milliliter, 24 rat", and you didn't make any reference to any rat 25 studies in your Material Safety Data Sheet for American 80 1 Pop Corn? 2 A. No. 3 Q. And the reference that Sigma and Aldrich 4 made about inhalation could be harmful, you didn't put 5 that in your safety data sheet, either? 6 A. No, I don't -- 7 MR. CALABRESE: Object to form. 8 Q. Now, continuing to look at your safety data 9 sheet for American Pop Corn, the point of the exercise 10 of the Material Safety Data Sheet was to advise your 02:57 11 customer of all known hazards of the product and what 12 safety precautions to take to work around it; is that 13 right? 14 MR. CALABRESE: Object to form. 15 MR. BENSON: Object to form. 16 A. Yes. 17 Q. And you try to put all the hazards 18 regarding every ingredient in the Material Safety Data 19 Sheet so that the customer can know how to protect its 20 employees? 02:57 21 MR. BENSON: Object to form. 22 MS. MIDDELHOFF: Object to the form. 23 MR. CALABRESE: Also mischaracterizes 24 prior testimony. 25 A. Yes. 81 1 Q. Now, if you look at the front page of your 2 Material Safety Data Sheet, right in the very front on 3 product identification, there's a reference to FEMA 4 number; do you see that? 5 A. Say that again. 6 Q. There's a reference to the FEMA number? 7 A. Yes. 8 Q. And right above that, there is a CAS 9 number? 10 A. Yes. 02:58 11 Q. You didn't make any reference in this 12 safety data sheet to the FEMA number or CAS number for 13 diacetyl, did you? 14 MR. CALABRESE: Objection. 15 MR. BENSON: Objection. 16 A. No. 17 Q. Is that right? If you had put the FEMA or 18 the CAS number, somebody could have tried to get this 19 document, just like you? 20 MR. BENSON: Object to form, calls for 02:58 21 speculation. 22 A. No. It doesn't apply to this mixture. 23 Q. I see. Oh. Why is that? 24 A. Because the mixture doesn't have a FEMA 25 number. 82 1 Q. So you only tell the customers that there's 2 a FEMA number if it's for the mixture, you don't tell 3 them there's a FEMA number for the ingredient? 4 A. Right. 5 Q. So the customer would never have the 6 opportunity to even know that there was a FEMA number 7 for the ingredients in your products? 8 MR. CALABRESE: Object to form. 9 MR. BENSON: Object to form. 10 MR. CALABRESE: Object to foundation, 02:59 11 assumes facts not in evidence. 12 MR. CRICK: It's right here, Phil. 13 MR. CALABRESE: Same objection. 14 A. That's just on the format, the MSDS format 15 in our computer system. If it's applicable, it is; if 16 it isn't, it isn't. 17 Q. My question to you is, the customer 18 American Pop Corn, from your own Material Safety Data 19 Sheet policy, would never know that there was a FEMA 20 number for diacetyl? 02:59 21 MR. CALABRESE: Same objections. 22 A. Yes, that's right. 23 Q. That's true? 24 A. That's correct. 25 (O'Connor Deposition Exhibit No. 12 was 83 1 marked for identification.) 2 Q. Let me show you Exhibit No. 12. Could you 3 tell me, what is this document? 4 A. I don't know. 5 Q. You've never seen this before? 6 A. I don't remember. 7 Q. Up at the top, it says, "Product label, 8 ADD," and then a big block, it says, "Warning: 9 Breathing certain flavoring chemicals in the workplace 10 may lead to severe lung disease." Do you see that? 03:01 11 A. Yes. 12 MR. CALABRESE: Object to foundation. 13 Q. And below that, it says, "Hazardous 14 ingredients", and it lists nuisance dust and diacetyl; 15 do you see that? 16 MR. BENSON: We'll stipulate the document 17 says what it says. I mean, she hasn't seen it. 18 MR. CRICK: Good, good. 19 MR. BENSON: Well, then I'm going to 20 object to you asking questions of her about a document 03:01 21 that she doesn't ever remember seeing. 22 Q. Okay. Nobody ever showed this to you 23 before? 24 A. I don't remember. 25 Q. And so you didn't use any of this 84 1 information; I mean, this was produced by Sensient. No 2 one at Sensient gave you this to put -- to use in your 3 own Material Safety Data Sheets? 4 MR. BENSON: I'm going to object to that, 5 because I don't see any Bates numbers. 6 MR. CRICK: It's down at the bottom, Boy. 7 SFI003842. 8 MR. BENSON: Not on my copy. 9 MR. CRICK: SFI003842. 10 MR. BENSON: Okay. Sorry, copy. 03:02 11 MR. CRICK: SFI003842 through 3845. 12 Q. Nobody at Sensient showed this to you? 13 A. I don't know what it pertains to. I don't 14 -- 15 Q. I understand that. No one at Sensient ever 16 showed this to you? 17 A. I don't know. I don't remember. 18 MR. BENSON: Object to form. 19 MR. CALABRESE: Objection. 20 Q. You don't remember ever seeing this? 03:02 21 MR. BENSON: That is her testimony. 22 Q. That may be because it says at the bottom, 23 "Confidential"? 24 MR. BENSON: Objection, don't answer. Of 25 course, it wasn't a question, so you didn't have to. 85 1 Q. Is there a time limit -- strike that. 2 Are there requirements of a company, when it 3 learns of new hazard information, is supposed to amend 4 its safety data sheets? 5 A. Three months. 6 Q. And so within three months of learning of 7 new information, you're supposed to amend your safety 8 data sheets? 9 MR. BENSON: Object to form. 10 A. Yes. 03:03 11 Q. Do you know when Sensient got the -- strike 12 that. 13 Sensient has always had the ability to get 14 flavor or fragrance ingredient data sheets from FEMA; 15 is that right? 16 A. Yes. 17 MR. CRICK: Paul, you can help me out 18 there; I think I'm making real good progress here. 19 Q. I'll just ask you. I have seen some OSHA 20 logs. Do you have anything to do with the OSHA logs? 03:05 21 A. No. 22 MR. CRICK: Okay. That's Mr. Partlow. 23 MR. BENSON: Let the record reflect that I 24 nodded my head, agreeing with Mr. Crick's statement. 25 Q. Have you ever been allowed by Sensient to 86 1 go to any FEMA seminars? 2 MR. BENSON: Object to form. 3 A. Yes. 4 Q. Have you gone to any FEMA seminars on 5 respiratory protection in the flavor and fragrance 6 industry? 7 A. No. 8 Q. Were you aware that in 1997, there was a 9 FEMA conference on respiratory protection for employees 10 in the flavor and fragrance industry? 03:05 11 A. No. 12 Q. Do you know a guy named Ed Krock? 13 A. Yes. 14 Q. Who was Mr. Krock? 15 A. I don't know his position. He worked at 16 our facility in New Jersey. 17 Q. He was at that seminar. Did Mr. Krock give 18 you any information about what he learned at that 19 seminar on respiratory protection? 20 MR. BENSON: Object to form. 03:06 21 A. I don't remember. 22 Q. Ma'am, is one of the ideas of FEMA, is it's 23 a trade organization, and members share information to 24 promote flavors and fragrances in the industry; is that 25 one of the goals of FEMA? 87 1 A. Yes. 2 Q. And it's very helpful when members share 3 important information that they have learned that 4 others in the industry can take advantage of; is that 5 right? 6 A. Yes. 7 MR. BENSON: Object to form. 8 Q. It's particularly important when it's -- 9 for your field, when you're talking about protecting 10 workers, if you learn about information about safety 03:07 11 that one manufacturer has that could impact you, you'd 12 like to know about it? 13 MR. CALABRESE: Object to form. 14 MR. BENSON: Object to form. 15 A. Yes. 16 Q. Are you familiar with a company called 17 Givaudan? 18 A. Yes. 19 Q. What is Givaudan? 20 A. They're a flavor manufacturer. 03:07 21 Q. Just like Sensient? 22 A. Yes. 23 Q. You know, they used to be called 24 Tastemaker? 25 MR. CALABRESE: Object to form. 88 1 Q. Are you familiar with Tastemaker? 2 A. Just heard the name. 3 Q. Okay. This issue of bronchiolitis 4 obliterans, were you aware that there've been several 5 cases of bronchiolitis obliterans at the Givaudan 6 plant? 7 MR. BENSON: Objection. 8 MR. CALABRESE: Object to form. 9 A. No. 10 Q. Were you aware that the reason FEMA 03:07 11 conducted its 1997 seminar on respiratory protection in 12 the flavor and fragrance industry is because FE -- 13 because Givaudan had experienced cases of bronchiolitis 14 obliterans in its own plant? 15 MR. CALABRESE: Object to form, also 16 mischaracterizes testimony. 17 A. No. 18 (O'Connor Deposition Exhibit No. 13 was marked 19 for identification.) 20 Q. Let me show you Exhibit No -- 03:08 21 MR. BENSON: 13. 22 Q. -- 13. This is a document that we got from 23 Givaudan from before 1997; it says, "John, listed below 24 are the eight current or past employees with a 25 confirmed diagnosis of BO and the one suspected case." 89 1 And in 1997, you were preparing Material Safety Data 2 Sheets; right? 3 A. Yes. 4 MR. CALABRESE: Object to foundation, use 5 of this document. 6 MR. CRICK: Thank you. 7 Q. And in 1997, I understand that's when 8 Sensient started selling microwave popcorn to -- when 9 Sensient started selling butter flavoring to American 10 Pop Corn Company; did you know that? 03:09 11 A. No. 12 Q. Did anybody from Givaudan ever tell you 13 that they were experiencing cases of lung disease in 14 their own plant? 15 MR. CALABRESE: Objection; object to form. 16 A. No. 17 (O'Connor Deposition Exhibit No. 14 was 18 marked for identification.) 19 Q. I'm going to show you Exhibit 14. 20 Exhibit 14 is an August 24, 1995 report from James 03:10 21 Lockey concerning Clifford Walker, a Givaudan employee. 22 If you'd look at the next to the last page. Down at 23 the bottom, there's a paragraph called "Discussion"; do 24 you see that? 25 A. Yes. 90 1 Q. It says, "Mr. Clifford Walker is a 48-year 2 old gentleman who has clinical findings, as well as 3 laboratory results consistent with bronchiolitis 4 obliterans"; do you see that? 5 A. Yes. 6 MR. CALABRESE: Object to hearsay, object 7 to form and foundation for use of this document with 8 this witness. 9 Q. I want to direct your attention to the 10 second page of this document under the section called, 03:10 11 "Occupational history". Do you see that? 12 A. Yes. 13 Q. The last sentence in that paragraph says, 14 "He noted the following chemical agents that would 15 cause him to have breathing problems." Ms. O'Connor, 16 what's the first chemical listed there? 17 A. Diacetyl. 18 Q. Did anybody from Givaudan -- 19 MR. CALABRESE: I object. 20 Q. Did anyone from Giv -- 03:11 21 MR. CALABRESE: I object, rule of 22 completeness. The document also talks about prior 23 occupational exposures at Proctor & Gamble, W.R. Grace, 24 also talks about garlics, enzymes, toasted, and failure 25 to wear a respirator. Note my objections to form and 91 1 foundation, hearsay. 2 Q. You can -- you can read the whole thing, 3 but I'll read the section on diacetyl. It says -- 4 MR. CALABRESE: And I object on rule of 5 completeness. 6 MR. CRICK: Diac -- don't interrupt, 7 please. That's very immature. 8 Q. Number one -- 9 MR. CALABRESE: Move to strike. 10 MR. CRICK: How old are you? Act your 03:12 11 age. 12 MR. CALABRESE: I'm not going to go down 13 to that level, Steve. 14 MR. CRICK: Please don't. Stop 15 interrupting. 16 Q. Number one, "Diacetyl. This would be added 17 to butter. It would reach a certain temperature and 18 flash. He subsequently would awaken at night with 19 chest tightness and cough and difficulty breathing. 20 This would last approximately four to five days and 03:12 21 then resolve. There is no associated fever, chills, 22 muscle aches or pains. This occurred two or three 23 times per week until the butter flavoring operation was 24 transferred to the spray dry area approximately two 25 years prior to this evaluation." Did I read that 92 1 right? 2 MR. CALABRESE: Same objections; the rule 3 of completeness, the next sentence with garlic -- the 4 next paragraph with garlic mentions the same symptoms. 5 A. Yes. 6 Q. Thank you. Did anybody from Givaudan ever 7 share this information with you or anyone at Sensient 8 that you know of? 9 MR. CALABRESE: Continuing objections. 10 A. No. 03:12 11 Q. Were you aware that Givaudan had hired an 12 occupational doctor, occupational medicine doctor, in 13 Cincinnati named James Lockey and a group with him to 14 do a full study on the lung effects of working at the 15 Givaudan plant in Cincinnati? 16 MR. CALABRESE: Object to characterization. 17 A. No. 18 (Telephonic interruption.) 19 (O'Connor Deposition Exhibit No. 15 was 20 marked for identification.) 03:13 21 Q. Let me show you Exhibit No. 15. I'm sorry: 22 Exhibit 15 is a document produced to us by Givaudan, 23 it's called "Tastemaker Operational Procedures, date, 24 August 13, 1992, natural and artificial diacetyl spray 25 drying." 93 1 MR. CALABRESE: Continuing objection as to 2 form and foundation. 3 Q. If you'd take a look through this first 4 page on "Procedures", my question is going to be, did 5 Givaudan ever provide you with this information of what 6 they were doing to work around diacetyl? 7 MR. CALABRESE: Same objections. 8 A. No. 9 Q. Under the section "Procedures", under 10 paragraph two, I says, quote, "Whenever liquid diacetyl 03:15 11 or a product or liquid diacetyl is present, is to be 12 used a respirator with chemical-resistant gloves must 13 be worn." Givaudan never told that you, did they? 14 MR. CALABRESE: Same objections, also out 15 of context from the prior deposition testimony. 16 A. No. 17 Q. Paragraph three says, quote, "Any room 18 containing diacetyl in a liquid state must be labeled 19 respirator required." Did Givaudan tell you that? 20 MR. CALABRESE: Same objections. 03:15 21 A. No. 22 Q. Paragraph seven says, quote, "Whenever 23 material is in any tank, lids must be closed. If 24 ventilation, (mechanical), is not connected to tank or 25 is unavailable, a respirator must be worn at all times 94 1 while in the room." Did Sens -- or did Givaudan tell 2 you this? 3 MR. CALABRESE: Same objections. 4 A. No. 5 MR. CRICK: Let's take a break. 6 (Discussion was held off the record.) 7 THE VIDEOGRAPHER: We're going off video 8 tape record at 3:18 p.m. 9 (Recess taken.) 10 THE VIDEOGRAPHER: We're back on video tape 03:21 11 record at 3:21 p.m. 12 Q. I want to talk for a few minutes about 13 NIOSH. You already are told me you had read the NIOSH 14 publications about lung disease and microwave popcorn? 15 A. Yes. 16 Q. You've never seen anyone from NIOSH at your 17 plant? 18 A. Yes. 19 Q. You've never spoken directly with NIOSH at 20 all? 03:21 21 A. No. 22 Q. Are you aware of anyone from Sensient 23 actually writing to NIOSH about their study? 24 A. No. 25 Q. You said you've been to some FEMA 95 1 conferences. What FEMA conferences have you been to or 2 how many? 3 MR. BENSON: Object to form. 4 A. Maybe one or two. I don't remember. It's 5 been quite some time. 6 Q. A long time ago? 7 A. Yeah. 8 Q. Since all this incident about butter 9 flavoring and severe irreversible lung disease has come 10 into public knowledge, have you gone to any seminars on 03:22 11 that subject? 12 A. No. 13 Q. Have you tried to do any research on 14 bronchiolitis obliterans? 15 A. Not directly to that, no. 16 Q. The doctor who was initially responsible 17 for making the discovery, his name is Allen Parmett, an 18 occupational medicine doctor. Have you ever called up 19 any of the doctors that were involved in these studies 20 to ask if they could give you any information about 03:22 21 your company's products? 22 A. No. 23 Q. Just to finish up, we're sitting here in a 24 conference room in June of 2006; Sensient has never 25 asked any consultant, as a part of its regular 96 1 business, to look at its butter flavorings to see if 2 they were or were not a health hazard; is that right? 3 MR. BENSON: Object to form. 4 A. I'm not aware of anything. 5 Q. And as the person who is responsible for 6 putting hazard information on sheets of paper that go 7 to the customers, you would hope that if there was a 8 finding, you'd be told about it? 9 MR. BENSON: Object to form. 10 A. Yes. 03:23 11 MR. CRICK: No other questions. 12 MS. MIDDELHOFF: I have no questions. 13 MR. BENSON: I just have a couple of 14 questions. 15 16 EXAMINATION 17 18 BY MR. BENSON: 19 Q. Ms. O'Connor, when you finish drafting up a 20 Material Safety Data Sheet, is there anything that you 03:24 21 do to the sheet to indicate that it's in final form? 22 A. I put an "A" for approved on it. 23 Q. And then do you also put your initials? 24 A. And my initials, yes. 25 Q. Okay. Do you know what an LD 50 or an LC 97 1 50 is? 2 A. It's a lethal dose of air and/or oral or 3 dermal study that's conducted on rats, mice, rabbits. 4 MR. CRICK: Okay. That's all I have. 5 6 EXAMINATION 7 BY MR. CALABRESE: 8 MR. CALABRESE: Good afternoon, Ms. 9 O'Connor. My name is Phil Calabrese, counsel for 10 Givaudan. . 03:24 11 Q. I just want to follow up on questions that 12 Mr. Crick asked you about a number of documents that he 13 represented were produced by Givaudan. Had you seen 14 any of those documents before today? 15 A. No. 16 Q. You don't know anything other than what was 17 discussed here today or with your counsel about the 18 circumstances surrounding any of those documents; is 19 that right? 20 A. Right. 03:25 21 Q. And before you would make any judgment on 22 whether any of that information is even relevant to 23 your job, wouldn't you want to know the conditions 24 surrounding any of the substances or the conditions in 25 which the Tastemaker employees worked? 98 1 A. Yes. 2 MR. CALABRESE: I have no further 3 questions. 4 MR. CRICK: I have one more thing. 5 6 EXAMINATION 7 BY MR. CRICK: 8 Q. You want to know as much information as you 9 can find out about the hazards of ingredients so that 10 you can pass it on to your customers; that's what your 03:26 11 job is supposed to be? 12 MR. CALABRESE: Object to Norm. 13 MR. BENSON: Object. 14 Q. Is that right? 15 A. Yes. 16 Q. Mr. Benson asked you a question about 17 Material Safety Data Sheets you had prepared. Let me 18 show you this Exhibit No. 17. 19 (O'Connor Deposition Exhibit No. 17 was 20 marked for identification.) 03:26 21 Q. Is that a Material Safety Data Sheet for 22 Sensient product number 6000334, butter, natural and 23 artificial dry blend? 24 A. Yes. 25 Q. And if you look at the last page, is there 99 1 somebody's initials on there? 2 A. Yes. 3 Q. Is that yours? 4 A. Yes. 5 Q. And this is the exact, same Material Safety 6 Data Sheet that I showed you earlier, at least in 7 substance. You can compare it, if you want. I think 8 it's Exhibit -- is it Exhibit 10, the October of '01 9 safety data sheet. Would you take a look at that, 10 please? 03:27 11 A. Exhibit 10 is -- 12 Q. You're looking for the October of '01 13 Material Safety Data Sheet. I'm not sure what it was 14 numbered. 15 MS. MIDDELHOFF: 10 was the Citrus and 16 Allied Essences form. 17 MR. CRICK: So which number was it? 18 MS. MIDDELHOFF: October '01, one? 19 A. It was 9. 20 MS. MIDDELHOFF: It's 9. 03:28 21 Q. Yes, ma'am. If you would look at that and 22 compare it to the one I just marked, I believe --is 23 your testimony going to be these are essentially the 24 same be safety data sheets? 25 MR. BENSON: Object to form. 100 1 A. Yes, they're the same. 2 MR. CRICK: Okay. Thank you very much. 3 No more questions. 4 THE VIDEOGRAPHER: We're going off video 5 tape record at 3:29 p.m. and this concludes the 6 deposition of Libby O'Connor. 7 8 (Ending time: 3:30 p.m.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 101 1 STATE OF INDIANA ) ) 2 COUNTY OF ________) 3 4 I, the undersigned, declare under penalty 5 of perjury that I have read the foregoing transcript, 6 and I have made any corrections, additions, or 7 deletions that I was desirous of making; that the 8 foregoing is a true and correct transcript of my 9 testimony contained therein. 10 11 Executed this ______ day of ______, 2006, 12 at: 13 14 15 16 17 ___________________________ 18 Elizabeth D. O'Connor 19 20 21 22 23 24 25 102 1 REPORTER'S CERTIFICATE 2 I, LINDA C. CALLAHAN, a Court Reporter and 3 Notary Public, certify; 4 That the foregoing proceedings were taken 5 before me at the time and place therein set forth, at 6 which time the witness was put under oath by me; 7 That the testimony of the witness, the 8 questions propounded, and all objections and statements 9 made at the time of the examination were recorded 10 stenographically by me and were thereafter transcribed; 11 That the foregoing is a true and correct 12 transcript of my shorthand notes so taken. 13 I further certify that I am not a relative or 14 employee of any attorney of the parties, nor 15 financially interested in the action. 16 I declare under penalty of perjury under the 17 laws of ^ that the foregoing is true and correct. 18 19 Dated this ^ day of ^ 2006. 20 21 _________________________________ 22 LINDA C. CALLAHAN 23 24 My county of residence: Hamilton 25 My commission expires: 11/3/08 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 104