1 IN THE CIRCUIT COURT OF JASPER COUNTY, MISSOURI 2 RAFAELA BENAVIDES and ) CARLOS BENAVIDES, et al ) 3 ) Plaintiffs, ) 4 ) vs. ) No. 01-CV-683025 5 ) INTERNATIONAL FLAVORS & ) 6 FRAGRANCES, INC. a New York ) Corporation, ) 7 ) BUSH BOAKE ALLEN, INC. ) 8 a Virginia Corporation, ) ) 9 Defendants. ) 10 DEPOSITION OF CARLOS MONTENEGRO 11 witness produced, sworn and examined on the 2nd day 12 of April, 2003, between the hours of 9:43 a.m. and 13 1:05 p.m., at the Skadden, Arps, Slate, Meagher and 14 Flom law offices, 333 West Wacker Drive, in the City 15 of Chicago, County of Cook, State of Illinois, 16 before 17 J. D. MARTIN Certified Court Reporter 18 C.C.R. No. 738(G) 19 and a Notary Public within and for the County of 20 Jackson, State of Missouri, in the above-entitled 21 cause, taken on the part of the Plaintiffs. 22 23 MARTIN & DANIEL COURT REPORTERS 24 401 Locust Street, Suite 204, Columbia, MO 65201 25 Columbia Kansas City (573) 449-0561 1-877-499-0561 1 1 APPEARANCES: 2 JAMES M. ZIEGLER AMANDA L. PENNINGTON 3 Humphrey, Farrington & McClain 221 West Lexington, Suite 400 4 Independence, Missouri 64051 5 For: The Plaintiffs, Rafaela Benavides and 6 Carlos Benavides, et al 7 MICHAEL J. PATTON Turner, Reid, Duncan, Loomer & Patton 8 1355 East Bradford Parkway, Suite A Springfield, Missouri 65801 9 For: The Defendant, 10 International Flavors & Fragrances 11 FRANK C. WOODSIDE Dinsmore & Shohl 12 1900 Chemed Center 255 East Fifth Street 13 Cincinnati, Ohio 45202 14 For: The Defendant, Bush Boake Allen, Inc. 15 16 VIDEOGRAPHER: BRUCE WITTY Legal Video Services, Inc. 17 205 West Randolph Street Chicago, Illinois 60606-1814 18 - - - 19 20 S-T-I-P-U-L-A-T-I-O-N 21 It is hereby stipulated and agreed by and 22 between the parties herein that a copy of this 23 transcript shall be submitted to the witness for his 24 signature before filing with the Court. 25 2 1 I N D E X 2 PAGE 3 Examination by Mr. Ziegler 4 4 5 6 E X H I B I T S PAGE 7 1 BBA Memorandum 8-24-95 11 8 2 BBA MSDS Flavor 85032 38 3 Diacetyl MSDS 68 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 CARLOS MONTENEGRO 2 being first duly sworn by J. D. Martin, Notary 3 Public, testified as follows: 4 EXAMINATION 5 By Mr. Ziegler: 6 Q. Would you please state your name and your 7 address -- your home address for the record? 8 A. My name is Carlos Montenegro. And I live at 9 487 Enroy Avenue, Elmhurst, Illinois. 10 Q. And Mr. Montenegro, have you ever had your 11 deposition taken before? 12 A. No. 13 Q. All right. Let me go over some ground rules. 14 The number one ground rule is if you don't 15 understand my question please tell me. We're 16 not trying to trick you, we're not trying to 17 make things difficult for you. If the question 18 is not clear, just let me know and I will try 19 to rephrase it. If I can't rephrase it I will 20 just move on. 21 It's important to give verbal answers in a 22 deposition. You shouldn't shake your head yes 23 or no in order to answer a question or say 24 uh-huh or huh-uh but give me a verbal response. 25 Also at anytime if you want to take a 4 1 break -- if you need to talk to your attorneys 2 or for whatever reason that you want to take a 3 break just let me know and we'll take a break. 4 We can take 10 or 20 breaks, it doesn't matter 5 to me. We're going by your schedule today. Is 6 that all right? 7 A. Okay. 8 Q. All right. Who is your current employer, 9 Mr. Montenegro? 10 A. Flavors of North America. 11 Q. And where are they located? 12 A. It's 525 Randy Road, Carrol Stream, Illinois. 13 Q. All right. And what position do you have with 14 Flavors of North America? 15 A. Quality control chemist. 16 Q. And what are your responsibilities as a quality 17 control chemist? 18 A. There are several. Since a play a role between 19 quality control and R & D, research and 20 development, my main function is to modify, 21 simplify formulas to help quality control 22 people for incoming raw materials, finished 23 products. That's for the quality control side. 24 For the R & D I simplify, modify the 25 formulas according to specific issues. Either 5 1 I reduce the chemical ingredients to the 2 formulas. And after its being complete and 3 several testing has been done, I submit it. 4 And after that I do the final thing is 5 supervise production employees for the 6 manufacture of the finished good. 7 Q. How long have you worked for Flavors of North 8 America? 9 A. This time close to a year. 10 Q. Do you recall your start date with the company? 11 A. That was April 15th. 12 Q. Of 2002? 13 A. Of 2002, correct. 14 Q. And have your job responsibilities changed at 15 all with Flavors of North America? 16 A. As I described them, no. Still the same. 17 Q. Who did you work for before Flavors of North 18 America? 19 A. I worked for Flavorchem in Downers Grove. It's 20 1525 Brook Drive in Downers Grove, Illinois. 21 Q. Flavorchem? 22 A. Flavorchem that's correct. 23 Q. And what does Flavorchem do? 24 A. The same as IFF and BBA. Flavor products for 25 food. 6 1 Q. And how long did you work for Flavorchem? 2 A. I started with Flavorchem -- it was August 2001 3 to April of 2002 -- I switched jobs. 4 Q. Were you a chemist with them? 5 A. I was a chemist there, too. I was in quality 6 control and I worked the methods for the 7 analysis of finished goods, and helping the 8 other technicians to have methods of 9 ingredients that we were using for the flavor 10 development. 11 Q. And before you worked for Flavorchem who did 12 you work for? 13 A. For Bush Boake Allen. 14 Q. Okay. So, you left Bush Boake Allen in August 15 of 2001? 16 A. Yes. That's correct. 17 Q. When did you start your employment with Bush 18 Boake Allen? 19 A. I start around June of 1991. 20 Q. Did you always have the same position with Bush 21 Boake Allen or does did your job title change? 22 A. I started as a laboratory technician II. 23 Q. What were your responsibilities as a lab 24 technician? 25 A. When I started there I was responsible for all 7 1 incoming raw materials, sampling raw materials. 2 And doing analysis on the raw material could be 3 applied chemistry, organic chemistry, 4 analytical chemistry all or any kinds of tests 5 that needed to be done on the incoming raw 6 material. 7 Q. What is your educational background? 8 A. I have a chemistry degree from Loyola 9 University. And I just finished a certificate 10 for MBA in business administration for the 11 University of Illinois. 12 Q. Okay. As of the time that you started on with 13 Bush Boake Allen you had a chemistry degree, 14 correct? 15 A. Not then. I was junior then when I started. 16 Q. All right. When did you obtain your chemistry 17 degree? 18 A. That was in 2000. 19 Q. Did there come a point during your employment 20 with Bush Boake Allen that your job title 21 changed? 22 A. Yes, it did. 23 Q. Tell us about that. 24 A. There was an opportunity inside the lab -- 25 because there were several opportunities since 8 1 when I started -- the opportunity was for raw 2 materials. That's where I begun. And then 3 came the opportunity to do the analysis in the 4 vanilla department. 5 Q. When did that opportunity present itself to 6 you? 7 A. It was three years after I started. 8 Q. In about 1994? 9 A. Exactly. 10 Q. What was your job title as of 1994 when you 11 went to the -- 12 A. They give me a title of lab technician I. 13 Q. Did your job title remain the same from 1994 14 through August of 2001? 15 A. It did. 16 Q. All right. As a condition of your employment 17 with Bush Boake Allen did you sign any 18 confidentiality agreements? 19 A. Yes, I did. When I started they told me that I 20 needed to sign a confidentiality form that 21 pertained to confidential formulas or any 22 information released out of the company. 23 Q. Did you have the same immediate supervisor from 24 1994 through 2001 at Bush Boake and Allen? 25 A. Yes. 9 1 Q. Who was that? 2 A. Noreen Lally. 3 Q. Do you know what her title was? 4 A. She was the management or supervisor in the 5 beginning. 6 Q. Was she connected solely with the vanilla 7 department or did she have a broader role? 8 A. She had a broader role. 9 Q. Did you supervise employees? 10 MR. WOODSIDE: Excuse me. Did the witness 11 or did she? 12 MR. ZIEGLER: Did the witness. 13 MR. WOODSIDE: Thank you. 14 THE WITNESS: No. What I did was when the 15 new employee was hired, I have to train them -- 16 that was it -- for the laboratory. And for 17 production all I did was advise them for any 18 suggestion they ask. 19 Q. When you started with the vanilla department in 20 1994 had you had any medical training? 21 A. No. 22 Q. What about toxicological training? 23 A. That was something that was encouraged in 24 safety programs. They tell us about the 25 problems that were involved. So, that was 10 1 similar to your question refers to. 2 Q. Sure. In terms of formal toxicological 3 training, had you taken any college courses 4 regarding toxicology? 5 A. Not toxicology. But I took environmental 6 chemistry. What I learned different aspects of 7 that program or the environment suffer it. 8 Q. When did you take your environmental chemistry 9 course? 10 A. That was, if I recall, early 90's. I don't 11 recall exact date. 12 MR. ZIEGLER: Okay. And let's go ahead and 13 mark this document as Exhibit 1. 14 (Montenegro Exhibit No. 1 was marked for 15 purposes of identification herein.) 16 Q. (By Mr. Ziegler) As of the time that you began 17 with the vanilla department, had you had any 18 training in industrial hygiene? 19 A. No. 20 Q. Okay. And the Court Reporter has placed before 21 you Exhibit No. 1. Do you recognize this 22 document? 23 A. I don't know. I don't recall to remember this. 24 MR. ZIEGLER: All right. Let me give you -- 25 I want to give you a few minutes to give you a 11 1 chance to read through the document. 2 And why don't we go off the record while he 3 does that? 4 (OFF THE RECORD.) 5 Q. (By Mr. Ziegler) Have you had a chance to read 6 Exhibit No. 1? 7 A. Exactly. 8 Q. And for the record Exhibit No. 1 is IFF 102933. 9 MR. WOODSIDE: It's 10293 through 10296. 10 MR. ZIEGLER: Thank you. 11 THE WITNESS: One, two, three, four, five 12 six. Correct. 13 Q. (By Mr. Ziegler) Thank you. And is it true, 14 Mr. Montenegro, that in August of 1995 you 15 became a member of the safety committee within 16 Bush Boake Allen? 17 A. Yes. 18 Q. Now, looking at the names on Exhibit 1 where it 19 says, To and then there is a colon. Do you see 20 that. Yes. 21 A. Okay. 22 Q. Are those the members of the safety committee 23 as of August 24, 1995? 24 MR. WOODSIDE: Could I ask a question of 25 you? 12 1 MR. ZIEGLER: Yes. 2 MR. WOODSIDE: Are you asking him if 3 independently he knows those people are the 4 people? Or if this indicates those are the 5 people. 6 MR. ZIEGLER: No, I'm not asking you if the 7 document indicates. I'm asking you just to 8 look at the names to the right of where the 9 word "To" appears with the colon, and asking 10 you if you can tell me if those are the members 11 of the safety committee. 12 THE WITNESS: Number 2? 13 Q. (By Mr. Ziegler) Right here. 14 A. Right here? 15 Q. Yes. 16 A. Yes. There were members. 17 Q. Do you recall whether there are members of the 18 safety committee who are not identified next to 19 the "To" with the colon? 20 MR. WOODSIDE: When he says "to" talking 21 about T-O. 22 MR. ZIEGLER: Yeah, not the number 2. But, 23 T-O. 24 THE WITNESS: Yes, identifies each of them. 25 Q. (By Mr. Ziegler) They are all members? 13 1 A. Yes. 2 Q. Did they all work in Chicago? 3 A. Yes. 4 Q. Do you know whether Bush Boake Allen had safety 5 committees at its other manufacturing 6 locations? 7 A. No, I don't recall if they had. I think they 8 -- safety was number 1 or Bush Boake Allen. 9 So, everyone must have that. 10 Q. So, you don't know for a fact, but you're 11 assuming they would have had safety committees 12 for their other locations. 13 MR. WOODSIDE: Object. You may answer. 14 THE WITNESS: Since safety was number 1 15 issue for Bush Boake Allen, everybody else has 16 to have in every site. 17 Q. (By Mr. Ziegler) What was the purpose of the 18 safety committee? 19 A. One, was to prevent accidents. Two, was to 20 report the accidents and the history of the 21 accident itself. Three, was to give solutions 22 or history of the case of the problem. And 23 open ourselves to the history of the case and 24 give the final solution. 25 Q. And when you're talking about accidents, you're 14 1 talking about any sort of work-related 2 accident? 3 A. Yes. 4 Q. Whether it's somebody falls, or cuts their hand 5 or suffers a chemical burn? 6 A. Yes. Either for somebody didn't mop the floor 7 and slip and twist their ankle. Or either 8 forklift driver drop a box. Such a thing as 9 that. 10 Q. Did the safety committee have any role in 11 advising product development or product 12 marketing on the health effects of the 13 chemicals used in BBA products? 14 A. No. Our base was to solve any problems inside 15 our site. 16 Q. Do you know what department within BBA had that 17 responsibility -- that is to advise on the 18 health effects of chemicals used in the 19 products? 20 A. To my understand it has to be product 21 development. 22 Q. Do you know who was in charge of product 23 development during the time that you were with 24 the company? 25 A. The Director of R & D was Amby Mankoo. 15 1 Q. And Amby Mankoo -- he was officed in -- was it 2 Norwood? 3 A. No, it was New Jersey. I think it was Mercedes 4 Drive was the address. It's not in Norwood. 5 It's in Montvale, New Jersey. 6 Q. Looking at Exhibit -- Exhibit 1 under -- well, 7 looking at the persons who you have identified 8 as safety committee members, did any of those 9 members have any responsibilities with respect 10 to research and development of products? 11 A. No. 12 Q. Can you tell me at least as of August of 1995 13 with respect to each safety committee member, 14 what their general job responsibilities were in 15 the company? 16 A. For each of them? 17 Q. Yes. 18 A. Okay. 19 Q. Starting with Mr. Engle? 20 A. Yes. 21 MR. WOODSIDE: Or Ms. Engle. 22 MR. ZIEGLER: Or is it Ms. Engle? I'm 23 sorry. 24 MR. WOODSIDE: I don't know. 25 THE WITNESS: Okay. Peter Engle -- 16 1 MR. ZIEGLER: I thought it was Peter. 2 THE WITNESS: Peter Engle was maintenance. 3 He was the head of the maintenance department. 4 Q. (By Mr. Ziegler) Yes. 5 A. Kathy Joyce was the head of the Human 6 Resources. Audrey Fonville was a compounder in 7 the central order department. 8 Q. In which department? 9 A. Simple order. Denny Sall was the President of 10 the Chicago site. 11 Z. Polak -- he was the order generation. 12 Create formulas for the compounders to produce 13 the final product. I call them order 14 generation. 15 David Gurnicz. What did David Gurnicz do? 16 I don't recall him -- what he did. 17 Hiram Kinser was plant manager. 18 And O'Toole -- I don't remember him -- what 19 he did. But those two probably are 20 compounders. And myself. 21 Q. Yes. And copies of this document were sent to 22 a group of people. Were all these people -- 23 did they all work in the Chicago offices of 24 BBA? 25 A. Correct. 17 1 Q. Okay. And starting with Mr. Carroll, can you 2 tell me what -- as of August of 1995 what each 3 their roles were within the company to the best 4 of your knowledge? 5 A. Carroll, I don't recall. I can tell about 6 Kiszkowski. I think she was working in Human 7 Resources. 8 Larry Miller was assistant or plant 9 manager. 10 Ron Cavalli was Vice-President of BBA. 11 Noreen Lally was the QC laboratory 12 management. 13 Frank Ruvlacaba was responsible for 14 shipping and receiving -- supervisor. 15 Pat Fulton -- she was responsible for 16 customer service. Was manager of customer 17 service. 18 Q. And Larry Lindberg? 19 A. Just a minute. I am confusing here Larry 20 Miller and Larry Lindberg. Okay. Give you 21 wrong information. 22 Larry Lindberg -- he was assistant plant 23 manager. And Miller -- I can't recall these 24 two. Dave Carroll and Larry Miller I can't 25 recall those two. 18 1 And Larry Lindberg was assistant plant 2 manager. 3 Q. Did this group of people who are carbon copied 4 on Exhibit No. 1 -- do you recall whether any 5 of them ever came to safety committee meetings? 6 A. Yes, they did. 7 Q. Do you recall whether Ron Cavalli regularly 8 came to the safety committee meetings? 9 A. He show up. Because he was one of the 10 individuals meeting for safety. 11 Q. And what about Larry Lindberg? Would he also 12 from time to time -- 13 A. Oh, yes. Yes, he was very consistent. 14 Q. In his attendance to the meetings? 15 A. Uh-huh. Even he doesn't appear in the specific 16 one, but even to the meetings he was there. 17 Q. Where did the -- or, strike that. 18 Did the safety committee meetings take 19 place on approximately a monthly basis? 20 A. Yes. 21 Q. And you became a member in August of 1995. How 22 long were you a member of the safety committee? 23 A. If I recall about six months. Maybe a little 24 over. But just about. 25 Q. Do you know whether the safety committee was in 19 1 existence when you first started working at 2 BBA? 3 A. Yes, it was. 4 Q. In August of 1995 was there a particular person 5 who was in charge of the safety committee? 6 A. Always been directed by Denny Sall. 7 Q. Do you know how the membership of the safety 8 committee was determined? 9 A. No. 10 Q. Was there a particular person who made 11 appointments to the safety committee? 12 A. I don't know. 13 Q. You don't know who decided who was on and who 14 was not on the safety committee? 15 A. No. I think this safety committee was speak up 16 for importance of our working laboratory or 17 person from laboratory or one from simple 18 order. Since production was a bigger site, 19 they have to pick two or three people from 20 production. And of course, management too, 21 they have to be involved. 22 Q. Do you know how it is that you were selected to 23 be a member of the safety committee? 24 A. No. 25 Q. Did you volunteer to be a member of the safety 20 1 committee? 2 A. When I was asked, yes. 3 Q. When you were what? 4 A. When I was asked if I wanted to be part of the 5 safety committee. I say yes. 6 Q. Who asked you? 7 A. That came from my management. 8 Q. Do you know which person in management did? 9 A. It's got to be my management -- is Noreen 10 Lally, if I recall. 11 Q. Did she tell you how long you would be on the 12 safety committee if you accepted? 13 A. No. 14 Q. Do you know who it was who replaced you on the 15 safety committee, six months after -- when you 16 stepped down? 17 A. No. 18 Q. Were there subcommittees in the safety -- on 19 the safety committee? Do you understand my 20 question? 21 A. Yes. No, there were not. 22 Q. Did you talk to the safety committee at the 23 time that you became a member about your 24 qualifications to become a safety committee 25 member? 21 1 A. No. 2 Q. Did you make the committee aware of your 3 educational background at the time that you 4 became a member of the safety committee? 5 A. They knew my background. And like I think it 6 was the reason they put me into the safety 7 committee to help them to solve the problems. 8 Q. And what is there about your background that 9 you believe they knew that made you a candidate 10 or that you thought could be of benefit to the 11 safety committee? 12 A. They were interested because of my experience 13 in the food industry at that time was strong. 14 Since I had worked from processing plants all 15 the way up to R & D and quality control all in 16 the previous time. 17 Q. Are you able to tell me where Bush Boake Allen 18 had its manufacturing plants as of August, 19 1995? In which cities in the United States? 20 Well let's start off -- there is one in 21 Chicago, Illinois, right? 22 A. Of course. Chicago became -- before Bush Boake 23 Allen it was for materials. And then Bush 24 Boake Allen bought it and it became BBA. 25 And then we knew they had central plant in 22 1 Norwood. 2 Q. Norwood? 3 A. New Jersey. 4 Q. In New Jersey. 5 A. And then I knew they open laboratories in 6 Dallas, but that was a later time. I don't 7 recall exact date. 8 Q. Uh-huh. 9 A. And then they open in Toronto. I don't recall 10 if it was there or if -- I don't know about 11 that. But I know it was a site in Toronto. 12 And then we knew the main site had been 13 since 1872 that was in London. 14 Q. All right. Let's -- I'm sorry to interrupt 15 you. And speaking of -- if you could limit 16 your questions just to the United States. Do 17 you recall whether there was a plant in 18 Florida? 19 A. But that was not for flavors. That was for the 20 development of chemicals. I think it was for 21 turpentines. 22 Q. I see. What about in Wisconsin? 23 A. That was late in the years. They used to make 24 butter flavors that we needed. That was in -- 25 I can't recall the town it was close in. But, 23 1 I knew it was there because we used to inspect 2 the butters from Wisconsin. 3 Q. Would that have been Black Creek? 4 A. Yes. That's correct. 5 Q. Okay. So, in terms of the BBA plants which 6 made butter flavoring or the components of 7 butter flavoring -- that would be Black Creek 8 in Wisconsin, right? 9 A. Correct. 10 Q. And Chicago? 11 A. Correct. 12 Q. Were there any other plants in the United 13 States that you know of that made butter 14 flavorings or butter flavoring components for 15 BBA outside of those we have just discussed? 16 A. No. 17 Q. All right. In terms of sites outside of the 18 United States which made butter flavoring for 19 BBA -- can you tell me what those are? 20 A. Well, 1997, '98 BBA became worldwide, 48 21 countries. But they never make any butter 22 flavors for ourselves. Most of our products 23 were shipped from here to overseas. 24 Q. Is it your testimony that there were no plants 25 -- no BBA plants outside of the United States 24 1 which manufactured either butter flavorings or 2 butter flavoring components during your time at 3 BBA? 4 A. Yes. I don't recall them making products for 5 ourselves. We used to make it for them. 6 Q. Now, looking back at Exhibit 1 again -- did any 7 of the individuals who are either safety 8 committee members or who are carbon copied on 9 Exhibit 1 -- did any of them have any 10 responsibility with keeping track of product 11 ingredient MSDS's? 12 A. The only person on Exhibit No. 1 is Hiram 13 Kinser, who was responsible for production. 14 Q. Do you think he had some responsibility with 15 respect to MSDS's? 16 A. For incoming raw materials he have to make sure 17 every product has MSDS for reference for the 18 employees who had to handle the ingredients. 19 Q. Is there any other name on here that you 20 recognize as having responsibility for MSDS's 21 incoming raw materials? 22 A. Noreen Lally. 23 Q. Were there times during your employment at BBA 24 that you either had the opportunity or felt it 25 was necessary to review a raw material MSDS? 25 1 A. We always looked for those MSDS's just for 2 safety and concern about any hazardous -- 3 because we were the first one to touch the raw 4 materials, and we had to know what the effects 5 can be if we had a spill out or we get in 6 contact ourselves, so we need to read the 7 MSDS's. 8 Q. And in terms of the plant layout, where was 9 your lab located? 10 A. The way the plant was assigned, it's more like 11 an H type like, with the two angles like this 12 and one like that. And on one side was 13 receiving and the other side was the laboratory 14 and shipping next to it. 15 Q. And in terms of where compounding and mixing 16 occurred, was that in the center that connected 17 the H? 18 A. Exactly. That's in the back and where they 19 collect. 20 Q. Are you familiar with the type of safety 21 equipment that was worn by persons who mixed 22 butter flavoring? 23 A. Yes, I was very familiar because we suggest 24 what to wear when they were working not just 25 with butter, but for other chemical 26 1 ingredients. 2 Q. All right. And in terms of the primary 3 components of vanilla flavors -- can you tell 4 us what those were? 5 A. For vanilla? 6 Q. Yes. 7 A. Oh, vanilla beans. We used vanilla beans, 8 alcohol and water, period. 9 Q. Vanilla beans, alcohol and water. 10 A. And water, yeah. 11 Q. Okay. Was Diacetyl used in the compounding of 12 vanilla flavors? 13 A. Diacetyl? 14 Q. Uh-huh. 15 A. No. That was for -- excuse me. That was for 16 natural products. 17 Q. Yes. 18 A. For artificial products so many uses. Because 19 vanilla flavors -- artificial vanilla flavors 20 use several ingredients. And depends the 21 desire of the customer for the vanilla flavor. 22 And there is so many ingredients that I cannot 23 recall how the formulation can be made exactly. 24 Q. Okay. Do you recall whether in terms of 25 artificial vanilla flavoring whether Diacetyl 27 1 or Acetylene was used? 2 A. No. 3 Q. You don't recall? 4 A. No. 5 Q. Now, do you recall the events that are 6 described on Exhibit No. 1 with respect to the 7 incident involving Wayne Harwell? 8 A. I recall my memory it happened. Because there 9 were times that we had a lot of eye injuries of 10 such a sort because people didn't wear proper 11 equipment. Or either our environment then 12 wasn't designed appropriate as it became later, 13 because the environment changed after five 14 years or so. 15 Q. Okay. You're saying over time there were 16 improvements on the engineering controls. 17 A. Exactly. 18 Q. The company was moving toward closed systems in 19 it's compounding department, is that correct? 20 A. Correct. 21 MR. WOODSIDE: Excuse me. You mean in 22 1995? 23 MR. ZIEGLER: Well, yes. 24 MR. WOODSIDE: Okay. That's fine. I just 25 wanted to make sure we had a time frame. 28 1 THE WITNESS: Well, that's what I'm 2 explaining -- from the beginning there were 3 problems, because we move forward through the 4 years the improvements became. 5 Q. (By Mr. Ziegler) Yes. And in August of 1995 6 apparently somebody on the safety committee 7 raised the question about the effects of 8 Diacetyl, is that correct? 9 A. Diacetyl, yes. 10 Q. Okay. And a question was raised about the 11 effects of Diacetyl on the eyes and other 12 mucous membranes, correct? 13 A. Correct. 14 Q. Okay. Who on the safety committee raised that 15 question? 16 A. I don't recall. 17 Q. Was there a discussion at that time about the 18 adequacy of the safety equipment used at the 19 plant with respect to Diacetyl? 20 A. No. The problem was that we always think that 21 they didn't use the equipment. Because they 22 had the equipment. 23 Q. Okay. And the equipment being what? 24 A. Safety goggles, gloves -- even hair nets -- 25 hats and coveralls. 29 1 Q. Okay. Was respiratory equipment made available 2 to the workers in the compounding department in 3 1995? 4 A. Yes. Everybody had respirator equipment. Even 5 the laboratory. 6 Q. So, as of August of 1995 there were injuries 7 within the Chicago plant due to Diacetyl? 8 MR. WOODSIDE: Object. 9 Q. (By Mr. Ziegler) Correct? 10 A. No. 11 Q. There were no injuries? 12 A. We know exactly -- don't know if it was 13 Diacetyl. I say no because the injuries were 14 called for -- let's say the sweating in the 15 compound area and people take the goggles and 16 go like this. And we don't know what it caused 17 -- if it was Diacetyl or maybe the sweat of the 18 hands if they are not clean. They used to go 19 like this. So, we don't know. 20 Q. Thank you. We'll get back to that. 21 Well, let me ask it this way -- if it 22 wasn't known whether injuries were being caused 23 by Diacetyl, why was it that the safety 24 committee wanted to know about the effects of 25 Diacetyl on the eyes and other mucous 30 1 membranes? 2 A. Because the work people complained about rashes 3 and irritations in their eyes. Since then the 4 question was raised and we question is it 5 Diacetyl or is it any other ingredient that was 6 in the butter flavor. We didn't know. So, we 7 followed Diacetyl because it was the main 8 component of the butter flavor. 9 Q. Do you recall who it was who decided that 10 mucous membranes other than eyes needed to be 11 looked at? 12 A. No. There was no such a thing. It was just 13 concern about the eyes and the rashes on the 14 hands. 15 Q. The sole concern on this committee was the eyes 16 and the rashes on the hands? 17 A. Yes. 18 Q. There was no other concern about other mucous 19 membranes? 20 A. No. 21 Q. Do you know why it is then that you were 22 assigned to research the effects of Diacetyl on 23 mucous membranes other than the eyes? 24 MR. WOODSIDE: Object to the form of the 25 question. Because I don't know that he was 31 1 assigned anything. 2 Q. (By Mr. Ziegler) Okay. Let's go back and clear 3 that up. 4 Can you tell us how -- now, this memo 5 describes that you will research Diacetyl and 6 its effects on the eyes and other mucous 7 membranes, does it not? 8 A. Yes, I did some reading about it. 9 Q. Yes. 10 A. And I went and looked at it -- different papers 11 to where done by scientists. And I went to 12 several universities Chicago area and I look at 13 it. And there were experiments done on in the 14 white rats. 15 Q. Okay. We'll talk about those in a minute. 16 A. Okay. 17 Q. Was this a projects that you volunteered to do? 18 A. Yes, I volunteer. 19 Q. Okay. And because you volunteered you did 20 receive the assignment for this particular 21 project, correct? 22 A. Yes. 23 Q. Okay. Can you tell me why, if the safety 24 committee was not concerned about the effect of 25 Diacetyl on mucous membranes other than the 32 1 eyes -- why you were assigned the project of 2 researching Diacetyl and its effects on the 3 eyes and other mucous membranes? 4 A. First of all I volunteered for doing this. 5 Secondly, there was nobody in the plant asking, 6 you know, for any respiratory allergy or any 7 such sort of thing. Nobody ever complain about 8 it. 9 Our concern was for the rashes and the 10 itching on the eyes -- irritation -- and we 11 wanted to find out if it was true or not. That 12 was it. If that was Diacetyl. 13 Q. Did you understand the scope of your project to 14 include the eyes and other mucous membranes at 15 the time that you undertook it? 16 A. Yes. Because I wanted to find out really if it 17 is what is giving the problem to the people -- 18 or see because what was really the problem -- 19 because since we were the beginners to taking 20 samples, smell it, taste it and to our 21 knowledge we were in contact most of the time, 22 we were the main users before going on to the 23 plant. 24 So, I took the project because I was 25 thinking of my safety of my person -- myself. 33 1 Q. Are you saying it was your idea as opposed to 2 the idea of any other member on the safety 3 committee to research the effects of Diacetyl 4 on mucous membranes other than the eyes in 5 August of 1995? 6 A. No, what I'm saying is I needed to do search to 7 see what was the effects -- if it was future 8 effects -- because since we were the beginners 9 to be in contact with it. And to prevent any 10 accident or having people using respiratory 11 masks, we needed to know more about it. 12 Q. Did your research -- and pursuant to this 13 assignment you went and out and conducted some 14 research, correct? 15 A. That's correct. 16 Q. Did your research focus on butter flavoring 17 generally or on Diacetyl specifically? 18 A. Just Diacetyl. 19 Q. Can you describe the steps that you took in 20 conducting your research? 21 A. I read the -- I took MSDS and then I follow 22 information from there. And then I read 23 articles about it. And then I continue on with 24 list of articles that were done by scientists 25 on white rats or animals and see the effects on 34 1 to those animals. And I continue reading 2 several articles and I don't recall what were 3 they. 4 Q. Do you know whether Diacetyl was used at any of 5 the other company sites within the United 6 States besides Chicago? 7 A. I think it was used. 8 Q. Did you talk to any of the other company sites 9 in the course of your research about the 10 effects of Diacetyl on the eyes and other 11 mucous membranes? 12 A. No. 13 Q. Did you interview any of the other committee 14 members or other individuals identified on 15 Exhibit 1 to see what they knew about the 16 effects of Diacetyl on the eyes and other 17 mucous membranes? 18 A. Yes, I did. But nobody knew much about it. 19 Q. Did the safety committee have any existing 20 research about the health effects of Diacetyl? 21 A. No, I don't think so. 22 Q. So, in 1995 when you began researching about 23 the health effects of Diacetyl you basically 24 started from scratch, correct? 25 A. Correct. 35 1 Q. Was there a library within the company at 2 Chicago or any sources of information within 3 the company written that you could look to with 4 respect to the effects of Diacetyl? 5 A. Yes. 6 Q. What were those sources? 7 A. I call the Bible of flavorists. It was the 8 Arctender Encyopyelitis. 9 Q. The what encyclopedia? 10 A. Arctender. A-r-c-t-e-n-d-e-r. Arctender I 11 think is the way to spell it. And there were 12 several periodicals of flavorists, product 13 flavorists or perfume flavorists. 14 Q. These are periodicals that you're talking 15 about? 16 A. Periodicals. Yeah, agriculture periodicals. 17 Q. Where are these all located? Or where were 18 they located in 1995? 19 A. It's a small library that we can go and search 20 for anything that we wanted. 21 Q. Was the library on your side of the building? 22 A. That was to our side, yes. Very near to it. 23 Q. Can you tell me how you recall about how large 24 the library was? 25 A. Maybe half of this room. Maybe. Yeah, about a 36 1 quarter of this room. Because there were 2 shelves on the side. And we can go pull the 3 periodicals and look if you were interested. 4 And then we give it to our special 5 librarian that was available to us. She was a 6 part-timer. A professional lady. And we just 7 say I'm interested in this article. Can you 8 search for me, please? 9 Excuse me. And then she used to do work 10 one way day a week. And she says, well, I find 11 this periodical for you. If it's unavailable 12 you can go and search for them. 13 Q. Were there any medical or toxicological experts 14 that you had on staff in Chicago that you can 15 speak with regarding Diacetyl and its health 16 effects? 17 A. No. 18 Q. Did you talk to any of BBA's Diacetyl suppliers 19 to determine what they knew about Diacetyl's 20 health effect? 21 A. No. 22 Q. Did you talk with any other industry members to 23 see what they knew about the health effects of 24 Diacetyl? 25 A. Lately I have. But then, no. 37 1 Q. In 1995 you did not. 2 A. No. 3 Q. Have you ever heard of the Flavoring Extracts 4 Manufacturers Association? 5 A. I think I have read about it. And so I have 6 read about chemists from the association. 7 That's the most common. 8 Q. Okay. Did you speak with the Flavoring 9 Extracts Manufacturers Association in 1995 when 10 you were conducting your research? 11 A. No. 12 MR. ZIEGLER: Let's go ahead and mark this. 13 MR. WOODSIDE: Let's off the record just a 14 minute. 15 (OFF THE RECORD.) 16 (Deposition Exhibit No. 2 was marked for 17 the purpose of identification.) 18 Q. (By Mr. Ziegler) Mr. Montenegro, before we 19 took our break you were telling us about what 20 the library contained within the Chicago BBA 21 offices. And you mentioned an individual with 22 whom you could consult that would get documents 23 for you. Was this the librarian of the 24 library? 25 A. Yes, it was the librarian. 38 1 Q. Okay. And the person with whom you would 2 consult was the librarian? 3 A. Correct. 4 Q. Did the librarian maintain an office next to 5 the library? 6 A. It was a small distance from the library. 7 Q. Do you recall the name of the librarian? 8 A. Delores. Delores was her name. But her last 9 name I don't recall. Delores Wex. That's the 10 last name. 11 Q. Weeks? 12 A. Yes. 13 Q. W-e-e-k-s? 14 A. I think it was W-e-x, I think. I'm not sure. 15 But it's Wex. 16 Q. Okay. Did Delores still work in the Chicago 17 offices for BBA at the time that you left the 18 company? 19 A. Yes. 20 Q. Now, in your position in working with raw 21 materials used to make vanilla flavorings, did 22 you ever have occasion to use Diacetyl? 23 A. Okay. 24 MR. WOODSIDE: I object to the form of the 25 question. Because the use of the term "use". 39 1 I don't know that he used anything. 2 Q. (By Mr. Ziegler) Try again. Did you ever 3 handle Diacetyl? 4 A. Okay. Yes. 5 Q. And in what context was that? 6 A. I sample when it came into the plant. There 7 were about 500, let's say, gallon containers. 8 Q. What was the purpose of your sampling? 9 A. Either the sample person was absent and I had 10 to replace him and I had to go sample it for 11 analysis in the laboratory -- either for purity 12 or -- also in -- also the difference in the 13 chemical ingredient. 14 Q. Was there a regular person who would sample the 15 Diacetyl as it came in? 16 A. Yes. 17 Q. What was the name of that person? 18 A. His name was -- one was Felix Essegara. He was 19 a Puerto Rican guy. He used to sample it. 20 Q. Okay. Did he have more experience handling 21 Diacetyl than you while you worked for BBA? 22 A. No. What happened -- he was the receiving guy 23 of the chemical ingredients -- all the raw 24 materials into the plant. 25 Q. Did he typically -- when it came to sampling 40 1 Diacetyl did he typically conduct the sampling 2 on Diacetyl? 3 A. No. Everything else. Diacetyl and all the 4 chemical ingredients that would come in at that 5 time. 6 Q. In terms of sampling activity -- or outside of 7 sampling activities did you ever handle 8 Diacetyl in the course of your employment at 9 BBA? 10 A. Over in the laboratory. 11 Q. Okay. What was the purpose of -- or what would 12 you do with the Diacetyl in the laboratory? 13 A. We did chemical analysis. Doing analytical. 14 And we did sensory analysis. And then we did 15 oral analysis. We did color -- if the color 16 presents itself in the chemical itself. 17 Q. Now, we have a document that has been marked as 18 Exhibit No. 2. And I would ask you to review 19 Exhibit No. 2 if you would, please. 20 A. Okay. Okay. 21 Q. Do you recognize Exhibit No. 2? 22 A. Physical chemical characteristics, yes. 23 Q. Okay. Exhibit No. 2 is Bush Boake Allen MSDS, 24 correct? 25 A. This part here, right? 41 1 Q. The exhibit itself. 2 A. Yeah. 3 Q. Okay. And MSDS meaning material safety data 4 sheet. 5 A. Correct. 6 Q. It is a material safety data sheet or MSDS for 7 a particular Bush Boake Allen product, correct? 8 A. Correct. 9 Q. And that Bush Boake Allen product is natural 10 and artificial butter flavor 85032, correct? 11 A. Correct. 12 Q. Now, in the course of your employment with BBA 13 you had opportunity to review raw materials 14 MSDS's, correct? 15 A. Correct. 16 Q. And among those were the raw materials MSDS's 17 for Diacetyl, is that correct? 18 A. Correct. 19 Q. And you're familiar with how to read an MSDS, 20 correct? 21 A. Correct. 22 Q. And in the course of your work in the lab it 23 was important to you to read MSDS's on the raw 24 materials which you handled, correct? 25 A. Correct. 42 1 Q. That was because you wanted to have complete 2 and accurate information on potential hazards 3 of the raw materials that you used, correct? 4 A. Correct. 5 Q. And that was because the better the information 6 that you had, the better equipped that you were 7 to avoid potential hazards in the workplace 8 from chemicals, correct? 9 A. Correct. 10 Q. All right. Now, let's take a look at Exhibit 11 No. 2. And on the first page there are certain 12 health hazard ratings which Bush Boake and 13 Allen has ascribed to this particular butter 14 flavoring product, correct? 15 A. Uh-huh. 16 Q. Do you see that in the box? 17 A. Yes. 18 Q. And what health hazard rating does Bush Boake 19 and Allen ascribe to this particular butter 20 flavoring? 21 A. Health hazard is 1. 22 Q. Okay. And what does a health hazard of 1 mean? 23 Does that mean that it's highly hazardous? Or 24 not very hazardous? Or what? 25 A. Just slightly. Not too hazardous, no. 43 1 Q. And the hazard rating goes from 1 up to -- or 2 it starts at zero, is that correct? 3 A. Correct. 4 Q. And goes up to what? 5 A. As I understand it goes up to 4. Depends on 6 the chemical. 7 Q. All right. And looking at this health hazard 8 of 1, does this tell you that you need to take 9 extraordinary precautions around the product in 10 order to protect yourself against exposure to 11 it? 12 MR. WOODSIDE: Object to the form of the 13 question. You may answer. 14 THE WITNESS: Can you repeat the question, 15 please? 16 Q. (By Mr. Ziegler) Yes. Does this tell you that 17 you're going to need to take extraordinary 18 measures to protect yourself from exposure to 19 the product if you're exposed? 20 MR. WOODSIDE: Same objection. 21 MR. PATTON: Same. 22 THE WITNESS: In this case, since it says 23 it's slightly, it's not really asking you to 24 have a protection yourself. Because we 25 understand that from the foodness standpoint, 44 1 slightly means poor -- meaning an amount of 2 hazard to the product itself. 3 Q. Okay. When you see health hazard ratings from 4 zero to 4, does each separate increment or does 5 each different number -- can you tell me what 6 each of those represents in terms of what it 7 alerts you to in terms of the hazards of a 8 product? 9 MR. WOODSIDE: Object to the form of the 10 question. You may answer. 11 THE WITNESS: Okay. Zero means basically 12 none. There is no hazard to it. 13 Q. (By Mr. Ziegler) So, basically if it has a 14 hazard rating of zero, you could get it on your 15 skin. You could -- 16 A. Exactly. 17 Q. -- eat a lot of it and you don't have to worry 18 about any health hazards, correct? 19 MR. WOODSIDE: Can I explain why I'm 20 objecting? 21 MR. ZIEGLER: Sure. 22 MR. WOODSIDE: Okay. With different 23 substances you might have different potential 24 risks. So, I don't know how he could answer 25 that question the way you have asked it because 45 1 it would incorporate exposure to a myriad of 2 different substances, some of which could have 3 lots of different kinds of -- you could have 4 hair problems. I mean it's silly. So, I don't 5 know how he can answer that question the 6 generic way you have asked it. 7 MR. ZIEGLER: Do you agree with what 8 counsel has stated? 9 THE WITNESS: Yes, I agree. Because you 10 cannot determine for a standpoint -- I didn't 11 go and refer to the Diacetyl product -- I 12 referred to alcohol. You can put alcohol to 13 rub on your skin or even to clean your face. 14 You can inhale it. But if the quantity is 15 large, what happen? The consequence of that -- 16 I'm talking alcohol, which is a common product 17 to use. 18 Q. (By Mr. Ziegler) Right. 19 A. And then if you use -- in this case, yes, the 20 reactivity is zero because you know you can put 21 a lot of alcohol on your skin and sometimes 22 then you drink alcohol. But when the amount is 23 over proportioned then the consequence are 24 severe. 25 Q. So, based on what counsel just stated and your 46 1 answer -- I mean that's what I'm trying to do 2 here is I'm trying to understand what these 3 numbers mean. 4 A. Okay. 5 Q. What do these numbers tell you if you have -- 6 if you have a health rating of zero, you're 7 telling me that that tells you you can't do 8 anything that you want with the product, 9 correct? 10 MR. ZIEGLER: Let's go off the record for 11 just a second. 12 (OFF THE RECORD.) 13 Q. (By Mr. Ziegler) With a health hazard rating 14 of zero? 15 A. Uh-huh. 16 Q. As I understand your testimony you can't use 17 the product in any manner, is that correct? 18 A. That's correct. You cannot go over the board. 19 Because any chemical ingredient use of food or 20 no use in food -- but since we saying to food 21 it has to be measured, because you cannot go 22 over-proportion because anything natural 23 product or artificial product will hurt you in 24 any manner. 25 Q. Right. Okay. So, understanding -- we 47 1 understand what a zero is then. 2 A. Uh-huh. 3 Q. And I'm assuming zero means that if you use it 4 as it's intended you shouldn't any serious 5 health consequences, correct? 6 A. Correct. 7 Q. Okay. Now, if a product has a rating of 8 number 4. What does that mean to you? 9 A. Number 4? 10 Q. Yes. 11 A. Number 4 is the higher that the government have 12 posted for safety. It can be very hazardous to 13 you if you inhale it, if you put it on your 14 skin or any overuse for your system. That's 15 when the safety comes into play. 16 Q. All right. And can you give us an example of a 17 raw material with a hazard 4 rating? Just to 18 give us some context. 19 A. A good example is ammonia disulfide. 20 Q. Ammonia disulfide? 21 A. Disulfide. 22 Q. And what can ammonia disulfide do if an 23 individual is exposed thereto? 24 A. If you put it on your skin you may receive 25 burns. If you inhale it -- because it's very 48 1 drastic -- sometimes you have to use face masks 2 in order to sample the stuff. And you have to 3 be careful in the usage. 4 Q. Okay. All right. So, we have some idea of a 5 zero hazard rating and a 4 hazard rating. Can 6 you tell us in terms of the numbers in between 7 1 through 3 what those numbers signify in terms 8 of the risk of the product? 9 A. Okay. Number 1 is health. That means that you 10 have to be careful when you take the product. 11 You have to have proper equipment against the 12 product because it might react to you -- it may 13 not. Because human beings have a different 14 system. Some people react, some people don't 15 react. So, therefore they ask you to have 16 protection equipment. 17 And number 2 is flammability. That is very 18 dangerous. People have to have -- sometimes 19 take the product out of the area where it's at 20 if it's not well ventilated. It can be -- for 21 example, alcohol is flammable at 47 degrees. 22 That's number 2 -- even can go up to number 4. 23 Number 3 I don't recall what is number 3. 24 But it's increase -- as the number increases 25 the hazardous increase in the usage. 49 1 Q. All right. You said for a hazard rating 2 number 2 that a person exposed to the product 3 -- we're talking airborne exposure? Is this 4 what you're thinking? You said if -- you're 5 talking about whether the area was well 6 ventilated. Were you contemplating a scenario 7 where a person might be exposed to a product 8 airborne? 9 A. Exactly. 10 Q. Okay. And you said under number 2 a person may 11 need to leave the area if the product has a 12 hazard rating of number 2 because of exposure 13 to it, correct? 14 A. The person don't have to leave the area. The 15 person has to be careful in the usage. 16 Q. Yes. 17 A. And the person have to have a proper area of 18 the usage like says hoods or they have to use 19 proper ventilation. 20 Q. Okay. Well, that's what I'm trying to figure 21 out in terms of the difference between number 2 22 and number 1. 23 If the person has to have proper 24 ventilation with the product with the hazard 25 rating of number 2 -- 50 1 A. Uh-huh. 2 Q. -- does that mean proper ventilation is less 3 important with the product that has a number 1 4 hazard rating? 5 A. Yes. Because a number 1 the person become in 6 contact with the product. And number 2 you 7 have to be more careful because the potential 8 of getting caught on fire is higher than being 9 in contact with the product itself. And that 10 means the flammability -- that the proportion 11 of fire is higher. 12 Q. Okay. Right now I'm talking about a health 13 hazard rating. 14 MR. WOODSIDE: I think they have been 15 intermingled in your questions and in response 16 to your questions. 17 Q. (By Mr. Ziegler) All right. Well, let's 18 square it away. 19 In terms of -- right now I'm just focused 20 on health hazard ratings. Not on the 21 flammability or reactivity. And I'm trying to 22 figure out what the difference is between a 23 health hazard rating of zero, 1, 2, 3 and 4. 24 Okay? 25 A. Uh-huh. 51 1 Q. And is it not correct that a product with a 2 health hazard rating of 2 -- you're going to 3 want to use it in a well ventilated area? 4 A. Yes. You have to use a well ventilation area. 5 Environmental -- let's put it -- I don't like 6 the word ventilation. 7 Q. Yes. 8 A. I like the word more environmental. Because 9 you when you talk about environment you talk 10 about the whole circle of things there is and 11 your medium. Can be ventilation, can be the 12 equipment, tools or whatever. 13 So, in this case the flammability is higher 14 -- they say a 2 because they have to be careful 15 on the environment where they use it. 16 Q. Okay. But I'm not -- I'm not thinking right 17 now about flammability. Okay? 18 A. Uh-huh. 19 Q. Or it has a flammability rating of 2. 20 A. Uh-huh. 21 Q. I understand that. But what I'm talking about 22 -- if a product has a health rating of 2, are 23 you telling me that there again it would be 24 issues here that require greater ventilation 25 for that particular chemical or flavoring 52 1 mixture. 2 MR. WOODSIDE: Object to the form of the 3 question. Go ahead. 4 THE WITNESS: I think you have to define it 5 better. How you -- your approach here. 6 Because if your health increases to, let's say, 7 2 and 3 you have to in this case that you are 8 saying if you -- let's say you go to take it or 9 you go to inhale it, the risk is higher to get 10 physical damage in your system. 11 Q. (By Mr. Ziegler) Let's me simplify this. In 12 terms of the health hazard rating -- 13 A. Uh-huh. 14 Q. -- with respect to airborne exposure -- does 15 the number whether it's zero 1, 2, 3 or 4 -- 16 does that tell you anything about the necessity 17 of ventilation using that particular product? 18 A. Yes. Let's assume the health is 4 -- it can be 19 3 -- 20 Q. Yes. 21 A. -- and then the health potential is higher. 22 Q. And what if the number is zero or 1? 23 A. It's less. 24 Q. So, the lower the number -- is it your 25 testimony that the lower the number, the less 53 1 of a necessity of ventilating the area in which 2 the ingredient or the flavoring product is 3 used? 4 MR. WOODSIDE: I object to the form of the 5 question. You may answer if you can. 6 THE WITNESS: The lower the number, yes, the 7 less ventilation you need. But still you have 8 to think of the health risks there are. 9 Because anything that you take -- even water -- 10 you have to be careful. 11 In this case we're talking chemicals. Zero 12 to 1 we know is lower risk. But, as you go up 13 it's higher risk. 14 Q. Okay. 15 A. For the health part. 16 Q. But at least the health hazard rating of 1, we 17 know is on the lower end. 18 A. Yes. We know it's more safe. 19 Q. So, and you sitting here looking at this BBA 20 MSDS -- the MSDS conveys to you that this 21 product has a lower health hazard rating. 22 MR. WOODSIDE: I object to the form of the 23 question. You may answer. 24 THE WITNESS: Exactly. 25 Q. (By Mr. Ziegler) Okay. Now, looking down at 54 1 Section 3, do you see that there are certain 2 statements made regarding emergency and first 3 aid procedures? 4 A. Well, they describe it -- what to do in case of 5 you getting in contact with the ingredient and 6 they tell you what to follow in detail. 7 Q. Now, let me ask you this first -- in terms of 8 exposure to a product such as the one described 9 in Exhibit No. 2, do you understand the 10 difference between chronic exposure and acute 11 exposure? 12 A. I understand that chronic is very severe into 13 your health and your system. Acute is a lower 14 degree. But if you don't take care of it, it 15 might turn into a chronic. So, this difference 16 between the two. 17 Q. In terms of the distinction between acute and 18 chronic, do you understand that there is a 19 difference in the time period of exposure such 20 that acute would be a shorter period of 21 exposure than chronic? 22 A. Exactly. Acute is just short period of time. 23 And chronic is if you use over a time it can 24 result in an injury. 25 Q. And in terms of Section 3 -- do you understand 55 1 just reading that, do you understand personally 2 that Section 3 pertains to acute exposures or 3 chronic exposures? 4 A. It's difficult to understand. But in this case 5 it seems to me that it's for chronic exposure. 6 Q. Chronic. Exposure that would take place over 7 long periods of time. 8 A. Exactly. 9 Q. Okay. You're thinking -- when you say a long 10 period of time are you thinking -- how long? 11 A. Depends on the exposure. If you use a drop, 12 you know it's acute problem and then you just 13 wash and you're fine. If you -- when it's 14 chronic is when you go and use, let's say, 500 15 gallons and your exposure to a large 16 quantity -- the accident occur and just say 17 like spread it to yourself -- I'm talking 500 18 gallons this time -- that's a chronic 19 situation. 20 Q. Okay. A large amount of material. 21 A. Exactly. 22 Q. All right. In terms of whether or not the 23 exposure takes place over a short period such 24 as a matter of minutes, in case of an accident, 25 or whether we're talking about an exposure that 56 1 might take place over, say, months -- 2 A. Uh-huh. 3 Q. -- do you understand Section 3 to pertain to 4 what sort of exposure? 5 MR. WOODSIDE: Object to the form of the 6 question. You may answer. 7 THE WITNESS: Okay. They describe it here 8 for a short period of time. They don't 9 describe it for long period of time. 10 Q. (By Mr. Ziegler) All right. So, for a shorter 11 period of time being an acute exposure and a 12 longer period of time being a chronic 13 exposure -- 14 A. Exactly. 15 Q. -- you're telling me that you understand 16 Section 3 to pertain to acute exposures. 17 MR. WOODSIDE: Objection. I don't think -- 18 go ahead. 19 THE WITNESS: No, what I'm saying is it can 20 pertain for both. What it says acute -- this 21 pertains for both sides. 22 Q. (By Mr. Ziegler) Okay. 23 A. And then it pertains more to chronic than for 24 acute in this case. 25 Q. And when you say chronic you're talking -- 57 1 A. Exactly. 2 Q. -- large amounts. 3 A. Exactly larger. 4 Q. So, to simplify our discussion -- 5 A. Uh-huh. 6 Q. -- you believe Section 3 primarily pertains to 7 exposures which happened pursuant to a sudden 8 accident, but pertain to a large amount of the 9 butter flavoring. 10 MR. WOODSIDE: Objection. Go ahead. 11 THE WITNESS: Correct. If you by accident 12 just drop, let's say, four ounces -- and you 13 drop five gallons it's total different by 14 accident you pour it. 15 Q. (By Mr. Ziegler) Okay. You don't understand 16 Section 3 then to pertain to exposures of small 17 amounts which may occur over an a period of 18 months then, correct? 19 A. No. This apply more for chronic than for acute 20 exposure. 21 Q. Meaning? 22 A. Long periods of time. 23 Q. Okay. Meaning it doesn't apply to small 24 exposures over long periods of time, correct? 25 A. No. No this applies for long periods of time 58 1 if you work -- let's say, like I have worked 2 for Diacetyl for long periods of time. I still 3 do. And it don't affect personally myself or 4 other co-workers. 5 But if you expose to 500 gallons, 300 6 gallons and you do it for long period of time, 7 you know health hazards could be there, if 8 there is an accident there. And then you can 9 apply this situation. 10 Q. Okay. But not unless it's a large exposure 11 that happens suddenly at one time. 12 A. No. Well, if a large exposure happen, you have 13 to follow these instructions. 14 Q. If the large exposure doesn't happen then these 15 instructions would not apply. 16 MR. PATTON: You're talking about Section 3 17 only? 18 MR. ZIEGLER: Yes. 19 THE WITNESS: In a way do, in a way no. 20 Because small amount won't hurt yourself. 21 Q. (By Mr. Ziegler) With respect to inhalation -- 22 do you see the statement there? 23 A. Exactly. 24 Q. It says avoid gross inhalation of fumes. 25 A. Correct. 59 1 Q. Okay. As an individual who has seen MSDS's, 2 what does that phrase mean to you? 3 A. In this case this phrase says for large 4 quantities. 5 Q. Okay. 6 A. Gross means bigger. Nor a smaller. 7 Q. And if someone inhales a gross amount of fumes, 8 what is supposed to be done with them? 9 MR. WOODSIDE: Excuse me. According to 10 this document. 11 Q. (By Mr. Ziegler) According to the document, 12 yes. 13 A. Exactly. You have to remove it from the 14 area -- from the area before he feels 15 intoxicated. 16 Q. Does this statement convey to you a situation 17 where perhaps the product is spilled and the 18 person inhales fumes from the spill, for 19 example? 20 Does this statement to you apply to a 21 situation where a person would be exposed to 22 relatively smaller amounts of fumes while using 23 the product? 24 A. No, this statement refers when you have a large 25 quantities of Diacetyl or the chemical 60 1 ingredient in the area -- then you have to 2 remove. For a small quantities, doesn't apply. 3 Q. Such as large quantities meaning such as might 4 occur pursuant to a spill. 5 A. Yeah, exactly. 500 gallons, or 100 gallons, 25 6 gallons. Even five gallons. 7 Q. In terms of gross inhalation, is there any 8 particular quantity of the material that the 9 phrase gross inhalation signifies? 10 A. Like I said, the gross inhalation means large 11 quantity. Because if you make a batch -- let's 12 say of 500 pounds of material -- in this case 13 butter -- being Diacetyl the main ingredient, 14 we can say Diacetyl being 60 percent of 500 15 gallons, it turn about 300 gallons of Diacetyl. 16 That means -- it's a gross quantity, and you 17 cannot be expose to do that particular 18 ingredient if you don't use proper safety 19 equipment. 20 Q. All right. 300 gallons of Diacetyl will produce 21 gross -- a gross amount of fumes, correct? 22 A. Exactly. 23 Q. Now, is there an industry standard that I can 24 go to to determine the number of gallons of 25 Diacetyl which will produce gross inhalation of 61 1 the fumes? 2 A. A company that you can -- 3 Q. Any industry standards? 4 A. Not that I know. Because everything in the 5 industry has been experiment before. And there 6 are many books and periodicals that tell you 7 what are the proper amounts to use of Diacetyl 8 or the ingredient in butter flavor. 9 Q. If you're using this butter flavor -- you 10 personally -- 11 A. Correct. 12 Q. -- how do you know how large of a spill must 13 occur before it produces a gross amount of 14 fumes? 15 A. It can be five gallons. Can be five gallons. 16 Depends on the environment. Because if there 17 is a close environment where you're using the 18 proper butter, and it doesn't have proper 19 ventilation or air condition or any other 20 source of ventilation -- no, according to here 21 the flammability is 2, which is between 80 and 22 100. So, the fumes is going to come up 23 quicker, and the potential hazard is there. 24 Q. Okay. But in terms of inhalation -- 25 A. Okay. 62 1 Q. -- as I understand it, you're not able to tell 2 me based upon what you read here how many 3 gallons of the butter flavoring which might be 4 spilled would produce a situation where you 5 would have to remove the person to fresh air. 6 MR. WOODSIDE: Object to the form of the 7 question. 8 MR. PATTON: And you're talking about 9 Section 3. 10 MR. ZIEGLER: We're still on Section 3. 11 MR. PATTON: Thank you. 12 THE WITNESS: Okay. It can be -- let's 13 assume 50 gallons. Because if there is 50 14 gallons it's a large quantity. So, the persons 15 have to be removed from there. 16 And then wear proper equipment or safety 17 equipment and they have to use proper cleanup 18 procedures for the spill. 19 Q. (By Mr. Ziegler) Now, if the spill is less 20 than 50 gallons of the butter flavoring 21 product, you're saying we would not under those 22 circumstances have a situation where we would 23 need to remove the persons directly come 24 suppose to do that spill to fresh air? 25 MR. WOODSIDE: Object. 63 1 THE WITNESS: Let's reduce it to five 2 gallons instead of 50. Let's assume there is 3 60 percent of the Diacetyl to the five gallons. 4 So, three gallons of Diacetyl. Fumes will be 5 present. Because Diacetyl can react with any 6 other matter around of the room. 7 That's what I say environment and the 8 particular manufacture -- it has to be proper 9 design for the usage of the product. If it is 10 not designed properly, it will be a risk. 11 Q. (By Mr. Ziegler) Okay. How do we know -- or 12 are you able to tell me looking at Section 3, 13 when a person would need to be removed from an 14 area in which he was exposed to this butter 15 flavoring product? 16 MR. WOODSIDE: Excuse me. Could you repeat 17 that or read it back? I just didn't catch it. 18 (The last question was read back by the 19 Court Reporter.) 20 THE WITNESS: Okay. All depends on the 21 spill. If it spills in the floor -- let's say 22 it was five gallons -- the person has to be 23 well-trained before the usage. But when a 24 spill occur he has to know what to do and 25 remove -- remove or go to get himself for the 64 1 remove of the spill. 2 If you spill into itself he has to look for 3 emergency or assistance. Because other than 4 that he probably receive no inhalation -- 5 you're talking inhalation in this case. 6 Q. (By Mr. Ziegler) Inhalation only. 7 A. In this case inhalation -- he has to remove 8 himself as quick as possible. And then equip 9 himself with face mask, clothes or coveralls to 10 remove the spill. 11 Q. Does that include a situation where the person 12 experiences no respiratory symptoms and is not 13 in respiratory distress or irritated by the 14 spill? 15 A. He would know. Even if the person doesn't have 16 any respiratory allergies or respiratory 17 condition or pulmonary distortions, he has to 18 get his proper equipment before proceeding to 19 the cleanup. Because vapors will be released 20 in the air. 21 Once again, environment plays a big role on 22 the usage. 23 Q. All right. Speaking of respiratory protection 24 equipment, let's look at Section 6 for a 25 second. 65 1 MR. WOODSIDE: Sill on Exhibit 2? 2 MR. ZIEGLER: Still looking at Exhibit 2. 3 MR. WOODSIDE: Okay. 4 Q. (By Mr. Ziegler) If you could take a look at 5 Section 6. Read that please. 6 A. Uh-huh. Okay. 7 Q. Okay. And Section 6 refers to special 8 protection information with respect to this 9 butter flavoring product, correct? 10 A. Correct. 11 Q. Okay. And it recommends the use of a NIOSH 12 approved organic vapor respirator under certain 13 conditions, correct? 14 A. Correct. 15 Q. And that condition is that if the vapor 16 concentration is high due to heat, correct? 17 A. Exactly. 18 Q. Okay. Now, it is true, is it not, that this 19 section does not give you an objective quantity 20 of vapor concentration in which you need to use 21 a NIOSH approved organic vapor respirator, 22 correct? 23 A. Correct. It doesn't tell you how much will be 24 in the air because it's something that nobody 25 knows. 66 1 Q. Okay. And the word heat -- 2 A. Uh-huh. 3 Q. This information doesn't tell you how hot the 4 product will get before it creates a high vapor 5 concentration, correct? 6 A. Could you rephrase this? Because -- okay. Can 7 you rephrase the question? 8 Q. Looking at this, can you tell me how hot this 9 product needs to get before it will create high 10 vapor concentrations? 11 A. Okay. If you go back and look at -- two. Let's 12 see. At 60 degrees -- 68 degrees -- I'm sorry. 13 Evaporates rate: Less than 1. 14 So, if the heat is higher we know that the 15 Diacetyl is going to evaporate due to its 16 boiling point. 17 Q. So, when it says heat it's talking about 68 18 degrees Fahrenheit? 19 A. No, no, no, no. What I'm saying is that since 20 68 degrees it pertains only to Diacetyl because 21 the boiling point to Diacetyl is very low. 22 I cannot recall right now what is the 23 boiling point for Diacetyl. If you have MSDS 24 of ingredient you can look up the boiling point 25 of Diacetyl. 67 1 If the heat is high, the boiling point -- 2 if the heat is high and the boiling point of 3 Diacetyl is low, what is going to happen, 4 Diacetyl is going to start to start boiling and 5 the vapors are going to turn into gas. 6 MR. ZIEGLER: Why don't we mark this 7 exhibit? 8 (Deposition Exhibit No. 3 was marked for 9 purposes of identification herein.) 10 THE WITNESS: Uh-huh. 11 Q. (By Mr. Ziegler) Do you recognize Exhibit 3? 12 It appears to be a material safety data sheet 13 or MSDS for Diacetyl, correct? 14 A. Correct. 15 Q. And does that give you -- 16 MR. WOODSIDE: Just so we're clear, this is 17 for the record, this is a BASF Corporation. 18 MR. ZIEGLER: Yes. And it's a BASF material 19 safety data sheet. 20 Q. (By Mr. Ziegler) And does it indicate a 21 particular boiling point for Diacetyl? 22 A. Yes, it does. Boiling point in this case 87 to 23 '88. 24 Q. Okay. 25 A. If you boil -- that's when I say in Bush Boake 68 1 Allen's material safety data sheet says due to 2 the high heat, have to be careful. The heat 3 plays a big role on this particular point. 4 Because if the heat of product is off where 5 that still is going to be applied is high -- in 6 this case let's say oil -- sometimes oil -- you 7 don't know at what point the oil boils. So, 8 some oils boil over 200 degree, but the oil is 9 hot. When you apply the Diacetyl, what happen? 10 Q. Okay. 11 A. You don't know. Because the Diacetyl -- as you 12 apply the Diacetyl the first thing that comes 13 is vapors if the oil is hot. 14 Q. Okay. 15 A. Because the boiling point to Diacetyl in this 16 case they are saying is 87 to '88. 17 Q. All right. And that -- and I understand your 18 answer, and that brings me to my next question. 19 Disregarding Exhibit No. 3 but looking at 20 Exhibit No. 2, which is the MSDS for butter 21 flavoring, Exhibit No. 2 does not tell you the 22 temperature at which Diacetyl will vaporize, 23 does it? 24 A. No, it does not. Because here they refer about 25 the butter flavor and not about Diacetyl. 69 1 Q. And with respect to the temperature at which 2 the product will produce high vapor 3 concentrations, Exhibit No. 2 does not give you 4 that information. 5 MR. WOODSIDE: Excuse me. For the product? 6 You mean the butter flavor 85032? 7 MR. ZIEGLER: Yes. 8 MR. WOODSIDE: Okay. 9 THE WITNESS: No, it does not. Because you 10 can read melting point not applicable and 11 boiling point not applicable. 12 It doesn't tell you at what point this 13 product is going to boil at all. So, you're 14 right in that case. 15 Q. All right. Let's turn to the last page of 16 Exhibit No. 2. 17 A. Okay. 18 Q. All right. Before you read that, let me ask 19 you some questions. 20 A. Okay. 21 MR. PATTON: That's a good idea, since this 22 is a deposition. 23 MR. ZIEGLER: Go ahead and read that. 24 THE WITNESS: Go ahead. 25 MR. ZIEGLER: Please. 70 1 THE WITNESS: Okay. 2 MR. ZIEGLER: I have defense counsel 3 laughing at me. So, we're going to read it. 4 MR. PATTON: It wasn't an objection. It 5 was a chuckle. As many chuckles as you want. 6 THE WITNESS: Okay. 7 Q. (By Mr. Ziegler) Have you had a chance to look 8 at the last page of Exhibit No. 2, the MSDS for 9 the butter flavoring product? 10 A. This one? 11 Q. Yes. So, you read the last page, correct? 12 MR. WOODSIDE: No, no. Wait a minute. You 13 guys are getting confused here. He wants to 14 know if you read that page right there. 15 THE WITNESS: I read this page. Was that the 16 page? 17 MR. PATTON: Why don't you do this -- take 18 the other stuff out of the way. 19 THE WITNESS: Okay. 20 Q. (By Mr. Ziegler) You just read the last page of 21 the exhibit. 22 A. Exactly. 23 Q. Exhibit No. 2. 24 A. Yeah. 25 Q. Okay. There is a statement regarding the 71 1 potential irritation to the skin, eyes, throat 2 and lungs. Do you see that statement? 3 MR. WOODSIDE: I don't. So, could you tell 4 me where you're looking in particular? 5 MR. ZIEGLER: I'm looking -- 6 MR. WOODSIDE: The fourth paragraph? 7 MR. ZIEGLER: The largest paragraph on 8 the page. 9 MR. WOODSIDE: I have it. Thank you. 10 Q. (By Mr. Ziegler) And I will read that 11 statement. 12 Liquid and vapor severely irritating to 13 skin, eyes, throat and lungs. 14 A. Correct. 15 Q. Do you see that? 16 A. Uh-huh. 17 MR. WOODSIDE: Wait, wait, wait a minute. 18 Where did you read from? 19 MR. ZIEGLER: You see here? 20 MR. WOODSIDE: Okay. Well, you put the word 21 vapor in. It doesn't say vapor. 22 MR. ZIEGLER: No, it says liquid and vapor. 23 Do you see that? 24 MR. WOODSIDE: I'm sorry. You're asking -- 25 actually what I'm looking at -- I apologize. 72 1 You're correct. 2 MR. PATTON: I'm not sure. I think we have 3 lost where the question is. 4 THE WITNESS: Yeah, this says -- 5 MR. WOODSIDE: No, no. Let's start with the 6 question again. 7 THE WITNESS: Yeah. 8 Q. (By Mr. Ziegler) All right. Let me read the 9 statement. Liquid and vapor severely 10 irritating to skin, eyes, throat and lungs. 11 Did I read that correctly? 12 A. Correct. 13 Q. That statement is contained in the document 14 that you have before you which we have marked 15 as Exhibit No. 2, correct? 16 A. Uh-huh. 17 Q. Does this document indicate to you the amount 18 of liquid or vapor which may cause severe 19 irritation to the lungs? 20 A. Okay. I'm going to phrase it different. You 21 can tell they didn't use proper language here 22 to define the usage of the ingredient. Because 23 this phrase has to be relayed to what it says 24 here, tested in 100 percent -- if you test this 25 100 percent you might get this severe 73 1 consequences. 2 The problem here in this paragraph is they 3 didn't do the proper usage on defining how to 4 use the product. If you see -- if you use .99 5 pose the following hazards when tested -- 6 that's period right there. 7 If you would tested 100 percent it might 8 have this severe consequences. Which here in 9 this -- it's not paraphrased properly. It 10 might be misunderstood. 11 Q. So -- 12 MR. WOODSIDE: Well, wait. 13 MR. ZIEGLER: Oh, I'm sorry. I'll let you 14 finish. 15 MR. WOODSIDE: If he was finished fine. 16 I'm not sure if you were finished. 17 THE WITNESS: But that's what I say, it's 18 not finally defined. Because liquid and vapor 19 severely irritation to skin, eyes, throat -- 20 what cautions me -- is this .99 or the 100 21 percent? It doesn't say. So, I have to say 22 that 100 percent might cause me these 23 consequences. But .99, no. 24 So, is no well or clear defined. That's 25 it. But if you are going to use this product, 74 1 I have to make sure if I use 100 percent I'm 2 going to have a severe consequences. 3 Q. (By Mr. Ziegler) Okay. Let me ask you this -- 4 and whether it's 100 percent or point .99 5 percent refers to the dilution of the product? 6 A. Okay. 7 Q. Is that what you're referring to? 8 A. Exactly. What I'm referring is if you use .99 9 in a product -- and 100 percent, that's total 10 quantities. 11 Q. Yes. 12 A. Because .99 is one percent. 100 percent is a 13 huge difference. 14 Q. So, the way you read this is that if you were 15 using the product at 100 percent, that the 16 liquid and/or vapor might be severely 17 irritating to the lungs, at least in part. 18 A. If you use the 100 percent. 19 Q. Okay. If you use it at a more diluted 20 concentration you would expect the irritation 21 to the lungs to be relatively less? Is that 22 your testimony? 23 MR. WOODSIDE: I object to it based upon 24 the qualifications. You may answer if you can 25 -- or lack of qualifications. 75 1 THE WITNESS: If you dilute it, in this 2 case to .99 -- which I round them off to one 3 percent -- it refers that you might get health 4 hazards or things -- or lung hazards -- if you 5 read here, .99 pose the following health 6 hazards when it's tested individually. 7 But 100 percent is even higher. So, that 8 means if you dilute it to the proper amount you 9 won't have a health hazard. 10 Q. (By Mr. Ziegler) Does this tell you whether if 11 it is diluted at say 10 percent -- 12 A. Okay. 13 Q. Does this document -- at 10 percent or less -- 14 does this document tell you what the health 15 hazards that you should expect would be? 16 MR. WOODSIDE: Object. Form. Go ahead. 17 THE WITNESS: Yes, it tells you. It says 18 the greater than .99 percent pose the following 19 health hazards. 20 That means if you use it higher than .9 -- 21 a greater sign here -- that's a greater sign -- 22 .99 percent. 23 Q. (By MR. Ziegler) Yes. 24 A. Pose the following health hazard. It tells you 25 if the use goes up to .99 percent in a product, 76 1 it might have a health hazard. 2 Q. All right. What does the 100 percent in that 3 sentence that you just pointed to refer to? 4 A. Okay. The 100 percent refers -- it can be 20, 5 40 or 50. It doesn't specify. But 100 percent 6 is using a large amount for the application of 7 the product. 8 Let me paraphrase another word. If you use 9 let's say one percent or use one-to-one basis 10 -- if you have 100 pounds, let's say, of corn 11 here and 100 pounds of butter flavor you're 12 using 100 percent. And what you're doing is a 13 50/50 mix. But you use 100 percent of the 14 product basically to apply. And that comes 15 very danger. 16 MR. ZIEGLER: All right. And I think I 17 understand -- we'll clear that up just as soon 18 as we change the tape. So, let's change it. 19 (OFF THE RECORD.) 20 Q. (By Mr. Ziegler) All right. We have been 21 looking at the last page of Exhibit No. 2. 22 A. Okay. 23 Q. Which is the MSDS for a BBA butter flavoring 24 product, correct? 25 A. Correct. 77 1 Q. And the statement that we have been looking at 2 refers to properties of the butter flavoring 3 which may be irritating to certain parts of the 4 body, correct? 5 A. Correct. 6 Q. All right. And you understand -- tell me if 7 I'm right -- but you understand this statement 8 that we have been looking at, that it might be 9 severely irritating -- you understand first of 10 all that the product has been tested at 100 11 percent concentration, correct? 12 A. Pertaining to the butter, right? 13 Q. Yes. 14 A. Correct. 15 Q. Okay. And the paragraph that we're looking at 16 talks about certain ingredients within the 17 butter flavoring that are present at 18 concentrations of greater than .99 percent. 19 A. Correct. 20 Q. Okay. And in fact it is the individual 21 materials within the butter flavoring, and not 22 the butter flavoring as a whole, which has been 23 tested on safety -- for safety on humans and 24 animals, correct? 25 A. That's true. 78 1 Q. That's what this tells you. 2 A. Uh-huh. True. 3 Q. Okay. And that there are certain materials 4 within the butter flavoring at concentrations 5 greater than one percent which can be severely 6 irritating to the skin, eyes, throat and lungs, 7 correct? 8 A. What you're saying is that the ingredients that 9 are in the butter flavor greater than one 10 percent might affect the health of individuals. 11 Is that correct -- is what you refer to? 12 Q. No. A little bit different. 13 A. Okay. 14 Q. And let me see if we can -- this statement says 15 to you, does it not -- 16 MR. WOODSIDE: When you're talking about -- 17 MR. ZIEGLER: Yes. 18 MR. WOODSIDE: When you're talking about 19 this statement are you referring to the liquid 20 may be -- excuse me -- liquid and vapors 21 severely irritating to skin, eyes, throat and 22 lungs? Is that what you're referring to? Or 23 are you referring to something broader? 24 MR. ZIEGLER: Something broader. Okay. 25 Let's go back then. 79 1 MR. WOODSIDE: Thank you. 2 THE WITNESS: Okay. 3 Q. (By Mr. Ziegler) There is a statement contained 4 in this paragraph that says individuals -- 5 individual materials present at greater than 6 .99 percent pose the following health hazards 7 when tested individually at 100 percent. 8 A. Okay. 9 Q. All right. That statement tells you that when 10 certain ingredients of the butter flavoring -- 11 which exists in the butter flavoring at greater 12 than one percent, when tested at full strength 13 pose certain health hazards. 14 A. True. 15 Q. Okay. So, and those materials were not -- at 16 least as indicated in the paragraph that we're 17 looking at -- those materials were not tested 18 in combination, but rather individually, 19 correct? 20 A. Correct. 21 Q. All right. Can you tell from this paragraph 22 what those materials which may be severely 23 irritating to the skin, eyes, throat and lungs 24 are? 25 A. No. It's not clear. 80 1 Q. Can you tell anywhere in this MSDS what 2 materials are encompassed by the paragraph that 3 we have been talking about? 4 A. No. Because the materials are not defined. 5 The materials in the butter doesn't tell you 6 what is in the butter. 7 Q. Have you ever heard the phrase obstructive 8 pulmonary disease? 9 A. No. 10 Q. Have you ever heard the term emphysema? 11 A. Yes. 12 Q. Okay. You probably heard about it in 13 connection with cigarette smoking, haven't you? 14 A. Probably. 15 Q. In terms of the paragraph that we have just 16 been looking at, does this paragraph tell you 17 whether exposure to this butter flavoring 18 product can cause emphysema? 19 A. No. 20 Q. Do you know what chronic bronchitis is? 21 A. Yes, I do. 22 Q. Does this paragraph tell you whether exposure 23 to this butter flavoring can cause chronic 24 bronchitis? 25 A. No. 81 1 Q. What about COPD? Have you ever heard that? 2 You've never heard COPD? 3 A. COPD? No. No medical terms. 4 Q. All right. Are you able to tell me -- there is 5 a phrase in here that says severely irritating 6 to skin, eyes, throat and lungs. Are you able 7 to tell me what that phrase means? Or let me 8 strike that. 9 MR. WOODSIDE: I'm going to object. I'm 10 going to object. Because I don't think he has 11 got the qualifications. 12 MR. ZIEGLER: And he's right. 13 MR. WOODSIDE: Thank you. 14 Q. (By Mr. Ziegler) Can you tell me what you 15 understand -- 16 A. Of course. 17 Q. -- when you read the phrase severely irritating 18 to skin, eyes, throat and lungs -- what that 19 phrase means to you? 20 A. That means a health hazard for myself. 21 Q. Okay. 22 A. Because it can damage my skin if you use it, my 23 eyes, my throat and my lungs. That's potential 24 hazard to myself. 25 Q. And the damage to the skin might be dermatitis? 82 1 A. Probably. 2 Q. The way you understand this what would the 3 damage to your lungs be? 4 A. Maybe your respiratory allergy. 5 Q. An allergy? 6 A. Uh-huh. 7 Q. Anything else? 8 MR. WOODSIDE: Object. 9 Q. (By Mr. Ziegler) The way you understand it. 10 A. Basically I think that one is an allergy -- it 11 can damage your lung. Who knows. Because 12 there is no studies done, basically, how this 13 butter flavor can hurt your lung, or your 14 throat or any part of your skin. 15 Q. It does not describe in particular the type of 16 damage to the lung that might occur by inhaling 17 it, does it? 18 A. No, it doesn't. 19 Q. And looking at Exhibit No. 2 as a whole, you 20 cannot tell me how high the vapor 21 concentrations of the butter flavoring have to 22 be in terms of quantitative concentrations 23 before severe irritation to the lungs occurs, 24 correct. 25 MR. WOODSIDE: Object to the form of the 83 1 question. 2 THE WITNESS: No, it doesn't tell you. 3 Because there is no research done in this case 4 how much -- the point here is how much can the 5 chemical ingredient affect your system where 6 there is no research done. Or any related 7 cases to know about it. 8 Q. (By Mr. Ziegler) And in terms of your 9 understanding of the MSDS, the MSDS does not 10 tell you how hot the product must get before 11 sufficient -- a sufficient concentration of 12 vapor is created which will be severely 13 irritating to the lung, correct? 14 MR. WOODSIDE: I object to the form of the 15 question. You may answer. 16 THE WITNESS: Once again, the problem here 17 is a technical problem. Because depends on the 18 application of the product. 19 Basically here it says, but vaporization is 20 high due to heat. We know that heat plays a 21 big role on the use of a chemical ingredient 22 due to -- there are three stages in which a 23 chemical turn to. It can turn into gas, to a 24 solid, to a liquid. If the product is liquid 25 and you put it into heat, it's going to turn 84 1 into gas as the heat increase. If you cool the 2 product and use it for a cool product, the 3 product is going to solidify. And vapors, of 4 course, ain't going to occur. That's what I 5 say before -- heat plays an important role here 6 in the usage of the product. 7 Q. Yes. But, in terms of the ingredients of the 8 product which can be severely irritating to the 9 lungs, this MSDS does not provide any 10 information to you in terms of the temperature 11 at which the product will produce sufficient 12 concentrations to cause such irritation, 13 correct? 14 MR. WOODSIDE: I object to the form of the 15 question. Go ahead. 16 THE WITNESS: Okay. 17 Q. (By Mr. Ziegler) And I'm thinking in terms of 18 the temperature. 19 A. Exactly. That's what I'm trying -- because we 20 know now the heat is playing an important role 21 in the usage of this product. We know if the 22 heat is high or above the boiling point of 23 water it would produce vapors. And then we 24 know from this point that there is a potential 25 health hazard to it. It depends on the amount 85 1 of the vapors -- which we don't know if you use 2 five grams and you burn it, it may not have a 3 health hazard. But if you use larger 4 quantities the health hazards are there. 5 That's the way I understand it. That's 6 what I say, it's technical. Because the 7 development of the product -- the finished 8 product -- I'm not talking the butter in this 9 case. In this case -- let's say bread in this 10 case. You cook bread. 11 MR. WOODSIDE: I'm going to object. This 12 has got nothing to do with bread. Just answer 13 the question. 14 THE WITNESS: Yeah. But he wanted to know 15 about heat. So, that's what I'm trying to -- 16 MR. WOODSIDE: We're not talking about the 17 heat of bread. 18 THE WITNESS: Okay. But we're talking about 19 heat itself. 20 Q. (By Mr. Ziegler) All right. Okay. That going 21 back to my original question with respect to 22 the temperature -- 23 A. Okay. 24 Q. -- that this product has to be at before it 25 will produce sufficient vapor concentration 86 1 which will cause severe irritation to the 2 lungs -- this MSDS does not tell you what that 3 temperature is. 4 MR. WOODSIDE: I object to the form of the 5 question. You may answer. 6 THE WITNESS: Okay. You see where it says 7 vapor pressure. 8 Q. (By Mr. Ziegler) Yes. 9 A. 68 Fahrenheit. It doesn't tell us at what 10 point we will find the vapor. Could be 80, 90 11 maybe 150 degrees. Doesn't tell us about the 12 boiling point, because this is not applicable. 13 Same thing for the melting point. Doesn't 14 tell us anything about what point does the 15 product melt. 16 Q. (By Mr. Ziegler) All right. So, if that 17 that's the case, if I wanted to know at what 18 temperature I would have to heat this product 19 before it would cause sufficient vapor 20 concentrations that could be severely 21 irritating to my lungs, I would need more 22 information than is provided in this MSDS, 23 correct? 24 A. True. 25 Q. True. 87 1 A. You need more information. 2 Q. Now, in dealing with raw materials while you 3 worked at BBA, in the MSDS's that you would 4 review from time to time there would be 5 chemicals which from reading the MSDS you 6 understood to be irritating to the lungs, 7 correct? 8 A. Depends on the chemical itself. Because not 9 all -- not everything harm yourself. Certain 10 chemicals do. 11 Q. Okay. In terms of whether or not you wore 12 respiratory protection when dealing with a 13 chemical, did you rely on MSDS statements such 14 as, can be irritating to the lungs? 15 A. Yes, I rely on MSDS to get information 16 pertaining to a particular chemical. 17 If the MSDS is labeled by them I use 18 precautions to use my safety equipment. 19 Therefore this is important source of 20 information. 21 Q. All right. Now let's look at Exhibit No. 3 if 22 we could? 23 A. Okay. 24 Q. Do you see that? Did I ask you to look that 25 over yet? 88 1 A. Yes. 2 Q. You have had an opportunity to look over 3 Exhibit No. 3? 4 A. Yes. 5 Q. That's right. And Exhibit No. 3 is an MSDS from 6 BASF Corporation regarding Diacetyl, correct? 7 A. Correct. 8 Q. And I'm interested in looking at Section 5 of 9 this MSDS. 10 MR. WOODSIDE: I'm sorry. Which section 11 did you say, 3 or 5? 12 MR. ZIEGLER: Five. It says health 13 effects. 14 THE WITNESS: Okay. Health effects. Right 15 here. 16 MR. WOODSIDE: No. 17 THE WITNESS: Okay. 18 Q. (By Mr. Ziegler) And I'd just ask you if you 19 would read Section 5 for me, please. 20 MR. WOODSIDE: Outloud. 21 MR. ZIEGLER: No. To yourself. We can go 22 off the record while he's reading it. 23 (OFF THE RECORD.) 24 Q. (By Mr. Ziegler) Mr. Montenegro, do you know 25 if you have ever before today ever reviewed 89 1 Exhibit No. 3? 2 MR. WOODSIDE: Can I ask a specific 3 question? 4 MR. ZIEGLER: If it will help. 5 MR. WOODSIDE: My question is are you 6 asking if he has seen this particular BASF 7 Diacetyl MSDS, or whether he might have seen 8 some other ones or what? 9 MR. ZIEGLER: All right. Well, those are 10 good questions. 11 MR. WOODSIDE: Thank you. 12 Q. (By Mr. Ziegler) In terms of a material safety 13 data shit -- sheet generated -- Strike that. 14 Let's try it again. That's not the one I want 15 to be played in front of the jury. 16 MR. PATTON: The magic of videotape. 17 Q. (By Mr. Ziegler) In terms of a BASF material 18 safety data sheet regarding Diacetyl -- 19 A. Okay. 20 Q. -- such as Exhibit No. 3 -- have you reviewed 21 such MSDS's in the past? 22 A. Yes, I have reviewed some MSDS's. On this 23 particular, I don't remember. 24 Q. Do you know for a fact that you have -- strike 25 that. 90 1 You know for a fact that you at some point 2 have reviewed an MSDS relating to Diacetyl, 3 regardless of which raw materials supplier they 4 may have come from, correct? 5 A. Correct. 6 Q. Now, looking at Section 5 of Exhibit No. 3, and 7 in particular not the page on which Section 5 8 begins but the continuation of that, do you 9 see there -- 10 MR. WOODSIDE: That would be Page 3 of the 11 document. 12 Q. (By Mr. Ziegler) Page 3. With respect to the 13 effects of inhalation this document states, 14 does it not, inhalation causes irritation to 15 the respiratory tract. Do you see that? 16 A. Correct. 17 Q. I read that correctly? 18 A. Uh-huh. Yes. 19 Q. All right. Now, and I'm only speaking in terms 20 of your understanding of this document. 21 Reading that statement, do you draw 22 anything about the necessity to use respiratory 23 protection when exposed to Diacetyl? 24 A. There is no explanation here. 25 Q. Just looking at that statement by itself. 91 1 A. Inhalation causes irritation to the respiratory 2 tract, period. 3 Q. Does that tell you -- does that phrase tell you 4 would one way or the other tell you whether you 5 need to use respiratory protection when you 6 work with Diacetyl? 7 A. No. 8 Q. Okay. Going back to Exhibit No. 2, which is 9 our BBA MSDS. 10 A. Okay. 11 Q. Looking at the very last page where we have the 12 statement liquid and vapor severely irritating 13 to skin, eyes, throat and lungs. Okay? 14 A. Okay. 15 Q. Does that statement by itself indicate to you 16 that one needs to use respiratory protection 17 anytime one is exposed to the butter flavoring? 18 A. It might say, may not. But in this case 19 doesn't say. 20 Q. All right. It doesn't tell you whether you -- 21 A. No. 22 Q. And in terms of the information that is 23 contained in the paragraph in which the 24 sentence we just read appears, there is no 25 information on the necessity of using 92 1 respiratory protection around the butter 2 flavoring product. 3 MR. WOODSIDE: Object to the form of the 4 question. Because I don't think you asked it 5 -- you said there is no information on -- I'm 6 not sure you meant to ask that question. 7 Q. (By Mr. Ziegler) Okay. All right. When 8 looking at the paragraph that begins the 9 contents of this mixture -- all right? 10 A. Yes. Okay. 11 Q. All right. And in this paragraph this 12 paragraph does not tell you whether you need to 13 use respiratory protection when working around 14 or working with -- wait, strike that. Let's 15 try this again. 16 Looking at this paragraph, this paragraph 17 does not tell you whether you need to use 18 respiratory protection when exposed to the 19 butter flavoring, correct? 20 A. Correct. 21 Q. Okay. Now, as I understand in the course of 22 your research that you did for the safety 23 committee, you went to the company library, you 24 went to other libraries, correct -- 25 A. Correct. 93 1 Q. -- and you looked at MSDS's that the company 2 had in its possession, correct? 3 A. Correct. 4 Q. And am I missing anything else in terms of your 5 research? 6 A. No. 7 Q. Okay. Do you believe that of the people who 8 worked at Bush Boake and Allen in Chicago in 9 1995, that you were the most qualified person 10 to conduct research on the health effects of 11 Diacetyl? 12 A. No. 13 Q. Was there a person who may have been more 14 qualified than you, Mr. Montenegro? 15 A. Yes. 16 Q. Who would that person be? 17 A. Oh, there are several people. 18 Q. Okay. Such as? 19 A. There are people that have a higher education 20 than I had then. Masters degree in analytical 21 chemistry. Masters degree in the chemistry 22 field. Scientists with a higher degree have 23 the potential. 24 Q. And in terms of your research did you -- in 25 terms of the articles that you found, did you 94 1 write them up in a paper form? Or can you tell 2 us what you did with your research? 3 A. What I did, I read the papers, and I took the 4 best that were there. But I didn't wrote any 5 paper to newspapers or anything -- or 6 periodicals -- they needed information -- 7 because this was more internal than external. 8 Q. All right. Let me try this again. Did you 9 prepare an outline of what you found in the 10 course of your research? 11 A. No. 12 Q. Did you write a research paper relating what 13 you discovered in the course of your research? 14 A. No. 15 Q. Did you prepare any written document that 16 contained anything that you had discovered in 17 the course of your research about Diacetyl? 18 A. No. 19 Q. Okay. Did you make a presentation to the health 20 committee regarding your research? 21 MR. WOODSIDE: Just -- it's not the health 22 committee. 23 MR. PATTON: Safety committee. 24 Q. (By Mr. Ziegler) The safety committee. I'm 25 sorry. Strike that. Let me try that again. 95 1 Did you make a presentation to the safety 2 committee regarding what you found in the 3 course of your research about the health 4 effects of Diacetyl? 5 A. No. Because the environmental manufacturer of 6 the particular product changed. And then there 7 were no more complaints about hazards of the 8 chemical itself. 9 Q. All right. So, if I understand you correctly, 10 during the period of time that you were 11 researching the health effects of Diacetyl, 12 there was a change in the engineering controls 13 in the manufacturing process of butter 14 flavoring? 15 A. Correct. 16 Q. All right. And that -- the engineering 17 controls were such that the product was now 18 manufactured or compounded in a closed system, 19 correct? 20 A. Correct. 21 Q. A closed system meaning the employees were no 22 longer exposed to Diacetyl, correct? 23 A. Correct. 24 Q. All right. And at that point there was no 25 longer a necessity for you to present your 96 1 findings to the safety committee, is that 2 correct? 3 A. Correct. 4 Q. Okay. So, under those circumstances there was 5 never a formal presentation made to the safety 6 committee regarding the health effects of 7 Diacetyl by you. 8 A. Correct. 9 Q. With respect to the articles that you found, 10 what did you ultimately do with those? 11 A. I toss it. Because a lot of paperwork I had I 12 just throw in garbage. 13 Q. I understand. 14 A. It was not to my interest to go out and do the 15 research. 16 Q. How many -- do you recall how many hours you 17 spent researching the health effects of 18 Diacetyl? 19 A. A lot. But I don't recall how many. 20 Q. Okay. And at the time that you were a member 21 of the safety committee and conducting research 22 on the health effects of Diacetyl you were 23 always performing your regular job as a chemist 24 in the vanilla department at BBA, correct? 25 A. Correct. 97 1 Q. Okay. And because of the circumstances existing 2 at the time that you completed your research, 3 at the conclusion you threw away your research 4 about the health effects of Diacetyl, correct? 5 A. Correct. 6 Q. Okay. You didn't make any recommendations to 7 the safety committee regarding the health 8 effects of Diacetyl, correct? 9 A. No, I didn't. 10 Q. Okay. And your research regarding the health 11 effects was not used in any other capacity by 12 the company, correct? 13 A. Correct. 14 MR. ZIEGLER: All right. Let's take a quick 15 break. And then we're going to wrap this thing 16 up. 17 (OFF THE RECORD.) 18 Q. (By Mr. Ziegler) Mr. Montenegro, currently you 19 work for Flavorings of America. 20 A. Flavors of North America, yes. 21 Q. And Flavors of North America makes one or more 22 butter flavoring products, correct? 23 A. Correct. 24 Q. All right. And do you have any role in the 25 development of the butter flavorings developed 98 1 and manufactured by Flavors of North America? 2 A. Correct. 3 Q. Okay. Do you interface at all with the 4 customers of Flavors of North America? 5 A. Yes, I do. Time to time. Not to often. But I 6 do. 7 Q. From time to time? 8 A. Yes. 9 Q. Do you know of a customer that Flavors of North 10 America had up until recently in Ridgway, 11 Illinois? 12 MR. PATTON: Just tell you something right 13 now. I'm not going to let him answer questions 14 about his current job. Because that company 15 has no association or relationship with the 16 Defendants, and it may be proprietary, it may 17 not be. But -- 18 MR. WOODSIDE: I agree. 19 MR. PATTON: -- I'm a little -- now, you 20 asked him about his duties, and that's all 21 fine. But now you're asking about specific 22 items. 23 MR. WOODSIDE: And the reason I'm concerned 24 is because you are a good lawyer, you may well 25 be asking matters that relate to potentially 99 1 other lawsuits. And those lawyers aren't here. 2 And to the best of my knowledge no one in this 3 office is related to any of the lawsuits. And 4 we're just not going to have that. 5 MR. ZIEGLER: All right. So, you're telling 6 him not to answer. 7 MR. WOODSIDE: Yes, I am. 8 MR. PATTON: Yes. 9 MR. ZIEGLER: Got ya. 10 MR. WOODSIDE: And if you say at some other 11 time it may be appropriate for him to answer, 12 well that may be. But we can't do it today. 13 Q. (By Mr. Ziegler) All right. Just a couple of 14 other questions? 15 A. Okay. That's fine. 16 Q. Do you know how long -- going back to Exhibit 1 17 and the research that you conducted in 1995 -- 18 do you know how long and over what period of 19 time it took to research the health effects of 20 Diacetyl? 21 A. It takes quite sometime. But like I said I 22 don't know how long it took me because first 23 you read the MSDS's, and you're trying to see 24 where they are trying to inform you. And after 25 that you start reading and start searching for 100 1 periodicals. And sometimes they are not 2 available to you and you have to find the 3 information. And sometimes the information is 4 in other languages that I don't know -- for 5 example German -- and I don't understand 6 German. And sometimes I have to translate 7 those papers into English or other language 8 that I understand, and that makes more 9 difficult. 10 Therefore, papers I don't understand I 11 really don't take a chance to do it. 12 Q. Did the length or period of time over which you 13 researched Diacetyl roughly correspond with 14 your time on the safety committee? 15 A. Correct. 16 Q. Okay. So, in other words you spent 17 approximately six months conducting research, 18 at which point the original reason for your 19 research on the health effects of Diacetyl was 20 no longer present because of the engineering 21 controls, such that you no longer needed to 22 continue the research, correct? 23 A. Yes. Because of the hazard of the product. 24 Q. All right. At that point in time when your 25 research was terminated was there a decision 101 1 made that you no longer needed to be a member 2 of the safety committee? 3 A. No. The assignment of the safety committee was 4 done for periods of time for everybody else. 5 Everybody else had to rotate. 6 Q. Okay. So, it was a matter of rotating somebody 7 else in. 8 A. Exactly. It was me -- my term was then. And 9 then somebody else's and somebody else's and 10 goes on. 11 Q. I got you. 12 MR. ZIEGLER: Mr. Montenegro, I appreciate 13 your time. And I have no further questions for 14 you right now. Thank you. 15 MR. WOODSIDE: Thanks. 16 THE WITNESS: Thank you. 17 MR. PATTON: We'll just have the same 18 agreement we have on all of them on signature. 19 MR. ZIEGLER: Read and sign. And all the 20 usual stipulations. 21 MR. PATTON: Yes. Correct. 22 MR. WOODSIDE: Thank you. 23 (OFF THE RECORD.) 24 25 102 1 2 _____________________ 3 CARLOS MONTENEGRO 4 STATE OF _______________) ) SS 5 COUNTY OF ______________) 6 The undersigned Notary Public of the State 7 of ______________ with principal office in the 8 County of ______________, does hereby certify: 9 That on ______________ ___, _____, the 10 foregoing deposition was submitted to the witness 11 for examination and was read; at which time any 12 changes which the witness desired to make were 13 entered upon the deposition and that thereafter the 14 deposition was signed before me by said witness. 15 Wherefore, I have subscribed my name and 16 affixed my seal this ____ day of _______________, 17 ______. 18 19 20 _____________________ 21 Notary Public 22 23 My commission expires: ______________ ____, 20___ 24 25 103 1 I, J. D. Martin, Stenographic Reporter and 2 Notary Public, do hereby certify that pursuant to 3 Notice there came before me 4 CARLOS MONTENEGRO 5 at the law offices of Skadden, Arps, Slate, Meagher 6 and Flom, 333 West Wacker Drive, Suite 2100, in the 7 City of Chicago, County of Cook, State of Missouri, 8 on the 2nd day of April, 2003, who was by me first 9 duly sworn to testify the whole truth of his 10 knowledge concerning the matter in controversy 11 aforesaid; that he was examined and his deposition 12 then and there written in stenotypy by me and 13 afterwards typed under my direct supervision, and is 14 fully and correctly set forth in the foregoing 15 pages; that presentment of this deposition to the 16 witness for signature was agreed by counsel and the 17 witness. 18 Given at my office in the City of Kansas 19 City, County of Jackson, State of Missouri, this 20 14th day of April, 2003. 21 My commission expires May 22, 2004. 22 23 24 ___________________________ J. D. Martin, CCR No. 738(G) 25 Notary Public within and for Jackson County, Missouri 104