0001 COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO 2 CASE NO. A0307157 3 - - - - - - - - - - - - - - - - - 4 TIMOTHY ARTHUR, et al., : 5 : Videotaped Plaintiffs, : 6 : Deposition v. : 7 : of INTERNATIONAL FLAVORS & : 8 FRAGRANCES, INC., et al., : THOMAS BATES : 9 Defendants. : 10 - - - - - - - - - - - - - - - - - 11 TRANSCRIPT of testimony as taken by and before 12 MARGE TEILHABER, a Certified Shorthand Reporter 13 (NJ License No. XI00856; CT license No. 446) and 14 Notary Public of the states of New York, New Jersey, 15 and Connecticut, at the offices of SKADDEN, ARPS, 16 SLATE, MEAGHER & FLOM, LLP, Four Times Square, 28th 17 Floor, New York, New York, on Wednesday, August 16, 18 2006, commencing at 9:14 in the forenoon. 19 20 21 22 Atkinson-Baker, Inc. Court Reporters 23 800-288-3376 www.depo.com 24 File No.: A007151 25 0002 1 A P P E A R A N C E S: 2 HUMPHREY, FARRINGTON & McCLAIN, P.C. 221 West Lexington, Suite 400 3 Independence, Missouri 64051 BY: KENNETH B. McCLAIN, ESQ. 4 SCOTT B. HALL, ESQ. Attorneys for plaintiffs 5 816-836-5050 kbm@hfmlegal.com 877-436-3692 sbh@hfmlegal.com 6 DINSMORE & SHOHL 7 255 East Fifth Street Suite 1900 8 Cincinnati, Ohio 45202 BY: J. DAVID BRITTINGHAM, ESQ. 9 DOUGLAS J. FEICHTNER, ESQ. Attorney for International Flavors and 10 Fragrances, Inc. and Bush Boake Allen Inc. 513-977-8200 11 513-977-8455 david.brittingham@dinslaw.com 513-977-8497 douglas.feichtner@dinslaw.com 12 SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP 13 Four Times Square 28th Floor 14 New York, New York 10036-6522 BY: DAVID WEINRAUB, ESQ. 15 Attorneys for International Flavors and Fragrances, Inc. 16 212-735-3000 212-735-3938 dweinrau@skadden.com 17 SQUIRE, SANDERS & DEMPSEY L.L.P. 18 4900 Key Tower 127 Public Square 19 Cleveland, Ohio 44114-1304 BY: J. PHILIP CALABRESE, ESQ. 20 STEPHEN M. FAZIO, ESQ. Attorneys for Givaudan Flavors Corporation 21 216-479-8500 216-479-8503 pcalabrese@ssd.com 22 216-479-8403 sfazio@ssd.com 23 24 ALSO PRESENT: 25 Lee Bowry, videographer 0003 1 I N D E X 2 WITNESS PAGE 3 THOMAS BATES 4 Examination by Mr. McClain 7 5 Examination by Mr. Brittingham 141 6 Examination by Mr. Calabrese 153 7 Examination by Mr. McClain 154 8 9 E X H I B I T S 10 NUMBER DESCRIPTION IDENT. 11 Bates-1 Multipaged document, 74 12 Bates SB-IFF 001766-1789 13 Bates-2 2-page email dated 87 10-8-01 and attachments, 14 IFF (FDR)000261-278 15 Bates-3 OSHA Material Safety Data 96 Sheets, 16 SB-IFF 005363-5402 17 Bates-4 Production formula 99 documents, 18 SB-IFF 005001-5027 19 Bates-5 Document entitled Chicago 105 Hi Load Spray Dry 20 Analysis as of 5/3/02 and email dated 5-3-02, 21 SB-IFF 003643-46 22 Bates-6 2-page email dated 107 10-19-04 and attachment, 23 SB-IFF 002845-56 24 25 0004 1 E X H I B I T S 2 NUMBER DESCRIPTION IDENT. 3 Bates-7 Document entitled IFF 117 Implementation of FEMA 4 Labeling Recommendations Q&A, SB-IFF 001876-79 5 Bates-8 Email stream, top email 135 6 dated 1-27-03, SB-IFF 002838-44 7 Bates-9 Email stream, top email 138 8 dated 3-23-04, IFF (FDR) 000291-296 9 Bates-10 Email stream, top email 140 10 dated 12-6-05, SB-IFF 001846-61 11 12 13 14 EXHIBITS PREVIOUSLY MARKED 15 NUMBER DESCRIPTION PAGE 16 16 Memo dated 3-11-91, Bates 14 IFF001662-73 17 17 Memo dated 12-30-91, 17 18 Bates IFF004242 and 4241 19 32 3-page memo dated 3-18-93 23 and attachments, Bates 20 IFF001486-494 21 36 Document entitled Formula 27 Inquiry, 22 AS400-IFF012737-48 23 24 25 0005 1 EXHIBITS PREVIOUSLY MARKED 2 NUMBER DESCRIPTION PAGE 3 52 Document dated February 29 10, 1994 entitled Chicago 4 Local Exhaust Ventilation Maintenance and Testing 5 Program, IFF003168-79 6 58 Memo dated 3-22-94 and 34 attached document 7 entitled Respiratory Protection Program dated 8 2-23-94, IFF003686-3703 9 66 Memo dated 5-9-94, 41 IFF010502-0510 10 105 Memo dated 1-31-95 and 48 11 attachments, IFF012641-47 12 187 Memo dated 8-24-95 and 58 attachment, IFF010293-96 13 327 BASF material safety data 141 14 sheet, IFF007995-8000 15 456 Document that starts of 37 with "Respirators and 16 their uses," Bates IFF004104-4117 17 459 Fax cover sheet dated 64 18 8-13-99 and attachment, IFF004581-82 19 1599 44 bills of lading, 69 20 "Warning-Hazardous Materials" on the top of 21 each page 22 1758 Memo dated 4-14-94 and 54 attachment, IFF011400-404 23 24 25 0006 1 T. Bates 2 THE VIDEOGRAPHER: I'm Lee Bowry, 09:14 3 your videographer, and I represent Atkinson-Baker, 09:14 4 Inc. in Glendale, California. I am not a notary 09:14 5 public. I am not financially interested in this 09:14 6 action nor am I a relative or employee of any 09:14 7 attorney or any of the parties. 09:15 8 The date is August 16, 2006. The 09:15 9 time is 9:15 a.m. This deposition is taking place 09:15 10 at Skadden, Arps, Slate, Meagher & Flom, LLP, Four 09:15 11 Times Square, New York, New York. 09:15 12 This is case number A0307157 entitled 09:15 13 Timothy Arthur, et al. versus International Flavors 09:15 14 and Fragrances, et al. The deponent is Thomas 09:15 15 Bates. This deposition is being taken on behalf of 09:15 16 the plaintiff or defendant? 09:15 17 MR. McCLAIN: Plaintiff. 09:15 18 THE VIDEOGRAPHER: The plaintiff. 09:15 19 Your court reporter is Marge Teilhaber from 09:15 20 Atkinson-Baker. Counsel will now please introduce 09:15 21 themselves. After all counsel present have 09:15 22 introduced themselves, then the witness gets sworn 09:15 23 in by the court reporter. 09:15 24 MR. McCLAIN: On behalf of the 09:16 25 plaintiffs Kenneth McClain and Scott Hall. 09:16 0007 1 T. Bates/McClain 2 MR. BRITTINGHAM: On behalf of 09:16 3 defendants International Flavors and Fragrances, 09:16 4 Inc. and Bush Boake Allen Inc., David Brittingham. 09:16 5 MR. WEINRAUB: Of behalf of 09:16 6 International Flavors and Fragrances, Inc. from 09:16 7 Skadden, Arps, David Weinraub. 09:16 8 MR. FEICHTNER: On behalf of 09:16 9 International Flavors and Fragrances, Inc., Bush 09:16 10 Boake Allen, Doug Feichtner. 09:16 11 MR. CALABRESE: For Givaudan Flavors 09:16 12 Corporation, Phil Calabrese. 09:16 13 MR. FAZIO: Also for Givaudan Flavors 09:16 14 Corporation, Steve Fazio. 09:16 15 T H O M A S B A T E S, 09:16 16 1040 Broad Street, 17 Shrewsbury, New Jersey 07735, 18 sworn. 10:06 19 EXAMINATION BY MR. McCLAIN: 10:06 20 Q. Would you state your full name, 09:16 21 please? 22 A. My name is Thomas Bates. 09:16 23 Q. And Mr. Bates, where are you 09:16 24 employed? 09:16 25 A. I'm employed by International Flavors 09:16 0008 1 T. Bates/McClain 2 and Fragrances in Shrewsbury, New Jersey. 09:16 3 Q. Mr. Bates, what is your position with 09:16 4 International Flavors and Fragrances? 09:16 5 A. I'm the director of global regulatory 09:16 6 affairs. 09:17 7 Q. Are you -- 8 A. Excuse me one second. I'm a director 09:17 9 within the department of global and regulatory 09:17 10 affairs. 09:17 11 Q. Okay. So you are a director? 09:17 12 A. Yes. 09:17 13 Q. How many directors are there? 09:17 14 A. Two others. 09:17 15 Q. Two others. And do you have a 09:17 16 certain area or other breakdown of responsibilities 09:17 17 or do all three of the directors' duties overlap? 09:17 18 A. My areas of responsibility are for 09:17 19 safety, worker safety, and for customs, U.S. 09:17 20 customs. Also for transportation and for, we call 09:17 21 it precursor chemicals, which is chemicals that are 09:17 22 regulated by the Drug Enforcement Administration. 09:17 23 Q. Are you what's known as a certified 09:17 24 industrial hygienist? 09:17 25 A. Yes, I am. 09:18 0009 1 T. Bates/McClain 2 Q. And what is your undergraduate 09:18 3 training in addition to your CIH designation? 09:18 4 A. My undergraduate training is, my 09:18 5 undergraduate degree is in chemistry from Montclair 09:18 6 State College, and I have a master's degree in 09:18 7 public health from the University of North Carolina. 09:18 8 Q. You have been designated as I 09:18 9 understand it to be a witness at trial in the matter 09:18 10 of Arthur and Campbell, et al. Are you aware of 09:18 11 that? 09:18 12 A. Yes, I am. 09:18 13 Q. And we have been informed that in 09:18 14 preparation for your assignment to testify on behalf 09:18 15 of the company you have reviewed certain documents 09:18 16 of events, some of which you were not personally 09:18 17 involved with but are prepared to speak about them 09:18 18 at trial on behalf of the company. Is that true 09:18 19 also? 20 A. There are documents that I have 09:18 21 reviewed that I'm prepared to talk about facts 09:18 22 regarding those documents, yes. 09:19 23 MR. BRITTINGHAM: Mr. Bates, you'll 09:19 24 need to keep your voice up I think a little bit for 09:19 25 the court reporter and others in the room. Sorry to 09:19 0010 1 T. Bates/McClain 2 interrupt you. 09:19 3 MR. McCLAIN: You didn't. 09:19 4 Q. All right. Now, let me just ask you 09:19 5 this. In 2000 IFF merged with another flavoring 09:19 6 company known as Bush Boake Allen. Is that true? 09:19 7 MR. BRITTINGHAM: Object to the form. 09:19 8 A. I believe the term is we purchased 09:19 9 Bush Boake Allen. 09:19 10 Q. Okay. I don't want to debate the 09:19 11 legal structure. That's been the subject in past 09:19 12 discussions between lawyers. But essentially Bush 09:19 13 Boake Allen and IFF became one company in 2000. Is 09:19 14 that correct? 15 MR. BRITTINGHAM: Objection. 09:19 16 A. It's my understanding that we 09:19 17 acquired Bush Boake Allen. They were a subsidiary 09:19 18 for a while. I believe their Chicago operation was 09:20 19 a wholly owned subsidiary, and then they, I think in 09:20 20 2002 it became IFF. 09:20 21 Q. So they were once two companies and 09:20 22 now they are one company? 09:20 23 A. That's correct. 09:20 24 MR. BRITTINGHAM: Objection. 09:20 25 Q. However that was accomplished? 09:20 0011 1 T. Bates/McClain 2 A. Right. 09:20 3 Q. Bush Boake Allen was a competitor of 09:20 4 International Flavors and Fragrances before the 09:20 5 companies came together. Is that correct? 09:20 6 A. That's correct. 09:20 7 Q. Bush Boake Allen manufactured 09:20 8 flavoring chemicals just like IFF did? 09:20 9 A. That's correct. 09:20 10 Q. Now, you were never an employee of 09:20 11 Bush Boake Allen, were you? 09:20 12 A. No. 09:20 13 Q. But you are aware, are you not, that 09:20 14 in this case that Bush Boake Allen supplied butter 09:20 15 flavor chemicals to the ConAgra plant in Marion, 09:20 16 Ohio? 09:21 17 A. Yes, I am. 09:21 18 Q. And IFF supplied butter flavor 09:21 19 chemicals to the ConAgra plant in Marion, Ohio? 09:21 20 A. Yes, I am. 09:21 21 Q. And you're prepared as I understand 09:21 22 it to speak to the issues surrounding the sale of 09:21 23 butter flavor by both of those companies to the 09:21 24 ConAgra plant. Is that right? 09:21 25 MR. BRITTINGHAM: Object to the form. 09:21 0012 1 T. Bates/McClain 2 A. There are certain facts that I know 09:21 3 about. 09:21 4 Q. But relating to that issue. Am I 09:21 5 right? 09:21 6 A. Yes. 09:21 7 Q. I'm not saying that your knowledge is 09:21 8 encyclopedic. I mean you've been given documents 09:21 9 and are prepared to talk about that general subject 09:21 10 matter to the extent you know about it? 09:21 11 A. Correct. 09:21 12 Q. And likewise to the extent that the 09:21 13 chemical diacetyl is involved in regard to causing 09:21 14 any disease in that plant or other places, you're 09:21 15 prepared to discuss the use of diacetyl and the 09:21 16 precautions utilized both by BBA and by IFF. Am I 09:22 17 correct? 18 A. Are you referring to the Marion, Ohio 09:22 19 plant, ConAgra plant? 09:22 20 Q. No. I'm talking about in their own 09:22 21 plants, in BBA's own plant and in IFF's own plant. 09:22 22 A. I'm not aware of any diseases related 09:22 23 to butter flavors or diacetyl. 09:22 24 Q. Let me rephrase my question. You are 09:22 25 aware -- back up. This case involving Mr. Campbell 09:22 0013 1 T. Bates/McClain 2 and Mr. Arthur involves the claim that butter 09:22 3 flavors have caused disease in those two individuals 09:22 4 at the Marion plant. Are you aware of that? 09:22 5 A. I'm aware of that, yes. 09:22 6 Q. And it is thought and claimed that 09:22 7 one of the principal active ingredients causing the 09:22 8 disease in microwave popcorn workers is diacetyl. 09:22 9 You're also aware of that? 09:22 10 A. I'm aware that there have been some 09:22 11 studies, yes. 09:22 12 Q. Now, with that preface, are you 09:22 13 prepared to discuss both BBA's and IFF's use of 09:23 14 diacetyl in their own facilities and the precautions 09:23 15 that were utilized by both companies around that 09:23 16 material? 09:23 17 A. Yes, I am. 09:23 18 Q. Let's look at some documents if we 09:23 19 can. Let me show you -- 09:23 20 MR. McCLAIN: Let's go off the record 09:24 21 for a minute. 09:24 22 (Discussion off the record.) 09:24 23 Q. Mr. Bates, I'm going to hand you what 09:25 24 we have previously marked in another setting as 09:25 25 Exhibit 16. 09:25 0014 1 T. Bates/McClain 2 (Exhibit 16 previously marked for 3 identification.) 09:27 4 A. (Examining document.) 09:27 5 Q. Mr. Bates, if it would help you, I'm 09:27 6 only going to talk to you about the one paragraph on 09:27 7 the first page. I don't think there's anything in 09:27 8 the rest of the document that -- 09:27 9 A. I thought you wanted me to read the 09:27 10 document. 09:27 11 Q. I'm happy to let you read whatever 09:27 12 you like but I don't want you to do more than you 09:27 13 really need to. The question I have is this. In 09:27 14 1991 did Bush Boake Allen have a safety committee? 09:27 15 A. It looks like this is minutes from a 09:27 16 safety committee meeting, yes. 09:27 17 Q. And there is an individual named on 09:27 18 this document by the name of David Carroll. Do you 09:27 19 see that? 20 A. He's copied on this document, yes. 09:27 21 Q. And he has been BBA and IFF's 09:27 22 representative in the past at trial. You're aware 09:27 23 of that? 09:27 24 A. Yes, I am. 09:27 25 Q. Do you see here in 1991 that diacetyl 09:27 0015 1 T. Bates/McClain 2 was the subject of discussion within the safety 09:28 3 committee? 09:28 4 A. It's listed here on number 2, a 09:28 5 statement about diacetyl, yes. 09:28 6 Q. It says, "Diacetyl has been used by 09:28 7 production with no accidents because the employees 09:28 8 have been using their shields and have kept the fan 09:28 9 on (the switch has been disabled by the Maintenance 09:28 10 Department." Do you see that? 09:28 11 A. Yes, I do. 09:28 12 Q. Now, you weren't present at that time 09:28 13 within BBA. Am I right? 09:28 14 A. That's correct. 09:28 15 Q. All you can tell us about is what's 09:28 16 here on the paper. Is that right? 09:28 17 A. That's correct. 09:28 18 Q. Apparently the safety committee noted 09:28 19 that there was a ventilation system that had been 09:28 20 disabled so that it would remain on to take fumes 09:28 21 away from the workers working in that environment. 09:28 22 Am I right? 09:28 23 MR. BRITTINGHAM: Object to form. 09:29 24 A. I would speculate on that. I'm not 09:29 25 really quite sure exactly what the meaning of that 09:29 0016 1 T. Bates/McClain 2 sentence is other than the fan is being kept on. 09:29 3 Q. And as an industrial hygienist, one 09:29 4 of the principles that is taught is that the 09:29 5 solution to pollution is dilution. Isn't that 09:29 6 right? 7 A. No, that's really not a principle 09:29 8 that we adhere to. You look to control the hazard 09:29 9 and eliminate it. 09:29 10 Q. Yes. And ventilation is one of the 09:29 11 ways you do that? 09:29 12 A. That's correct. 09:29 13 Q. And a ventilating system around 09:29 14 hazardous chemicals is in fact a good thing to 09:29 15 employ. Am I right? 09:29 16 A. Yes, it is. 09:29 17 Q. And one of the things that you might 09:29 18 want to do if you were concerned that your workers 09:29 19 would in fact shut that ventilation off is to 09:29 20 disable the switch. Am I right? 09:29 21 MR. BRITTINGHAM: Object to the form. 09:29 22 A. You would want to keep your 09:30 23 ventilation system on. 09:30 24 Q. And disabling the switch would 09:30 25 accomplish that? 09:30 0017 1 T. Bates/McClain 2 A. I'm just reading here, "The switch 09:30 3 has been disabled by the Maintenance Department." 09:30 4 Q. Okay. That's what they did in that 09:30 5 case. 09:30 6 A. Okay. 09:30 7 Q. Let me show you what we'll mark as 09:30 8 Exhibit 17. 09:30 9 (Exhibit 17 previously marked for 10 identification.) 09:30 11 A. Do you want this one back? 09:30 12 Q. No. You can keep them. You can keep 09:30 13 them as souvenirs. Take them home with you. You'll 09:30 14 always remember this day. 09:30 15 A. Okay. 09:30 16 Q. This is a short document so you can 09:30 17 read the whole thing in about as much time as I'm 09:30 18 going to direct you. Whenever you're ready. 09:30 19 A. Okay. (Examining document.) Okay. 09:30 20 Q. This is 1991. 09:31 21 A. Yes. 09:31 22 Q. Am I right? And in 1991 Bush Boake 09:31 23 Allen was owned by another company called Union 09:31 24 Camp. Isn't that true? 09:31 25 A. That's true. 09:31 0018 1 T. Bates/McClain 2 Q. And Union Camp had an industrial 09:32 3 hygiene program. Isn't that right? 09:32 4 A. I'm sure they did, yes. 09:32 5 Q. Tell the jury would you please as an 09:32 6 industrial hygienist what industrial hygiene is. 09:32 7 A. Industrial hygiene is the practice or 09:32 8 the science of looking at your work environment, 09:32 9 recognizing that there are materials that your 09:32 10 workers could be exposed to, evaluating what those 09:32 11 exposures might be, and controlling them. 09:32 12 Q. And typically you're trying to 09:32 13 control things that potentially are harmful to 09:32 14 workers. Am I right? 09:32 15 A. You're trying to reduce exposures, 09:32 16 correct. 17 Q. Now, as we can see from this 09:32 18 document, the personnel at the Bush Boake Allen 09:32 19 plant were focused on eight chemicals in the year 09:32 20 1991 to control. Am I right? 09:32 21 A. They listed, what it says here, "In 09:33 22 our meeting we decided on eight chemicals that we 09:33 23 plan to conduct air sampling for this coming year." 09:33 24 And "Here they are listed in priority." 09:33 25 Q. Tell the jury, would you, what air 09:33 0019 1 T. Bates/McClain 2 sampling is, Mr. Bates? 09:33 3 A. Air sampling is a method that 09:33 4 industrial hygienists use to collect -- it could be 09:33 5 vapors, it could be dusts, it could be gasses -- in 09:33 6 the work environment to try to come up with an idea 09:33 7 of what the exposure level might be to those 09:33 8 materials. 09:33 9 Q. In 1991 the fourth most critical 09:33 10 chemical in the plant in Chicago right after 09:33 11 acetaldehyde was diacetyl. Am I right? 09:33 12 MR. BRITTINGHAM: Object to the form. 09:33 13 A. Well, I think it says here that the 09:33 14 priority chemical of the eight, the fourth priority 09:33 15 was diacetyl. 09:33 16 Q. And would you tell the jury about the 09:34 17 issue of permissible exposure limits or TLVs? 09:34 18 A. Okay. Permissible exposure limit is 09:34 19 a number that has been established by the 09:34 20 Occupational Safety and Health Administration for 09:34 21 some chemicals that they have been able to identify 09:34 22 that workers can be exposed to on an 8-hour-a-day 09:34 23 40-hour-a-week workweek where there should be no 09:34 24 health risk associated with those materials as long 09:34 25 as it's below the permissible exposure limit. 09:34 0020 1 T. Bates/McClain 2 A TLV is a designation that's used by 09:34 3 the American Conference of Governmental Industrial 09:34 4 Hygienists and it's very similar to a PEL. The 09:34 5 ACHIH uses the TLV designation. 09:34 6 Q. And just to summarize what you told 09:34 7 us, that in regard to the chemicals where there is a 09:35 8 PEL or TLV, industrial hygienists such as yourself 09:35 9 believe that if you keep exposures below those 09:35 10 levels, most workers working a normal 8-hour day 09:35 11 40-hour week 50 weeks a year will be generally 09:35 12 disease-free from exposure at those levels. Am I 09:35 13 right? 09:35 14 A. Most healthy workers would be 09:35 15 protected, yes. 09:35 16 Q. All right. And in regard to diacetyl 09:35 17 there was no such level established in 1991, was 09:35 18 there? 19 A. That's correct. 09:35 20 Q. And so in other words, if you came to 09:35 21 an industrial hygienist in 1991 and said what is the 09:35 22 safe level of exposure to diacetyl, an industrial 09:35 23 hygienist in 1991 would say, "I can't tell you what 09:35 24 a safe level is." Am I right? 09:35 25 MR. BRITTINGHAM: Object to the form. 09:35 0021 1 T. Bates/McClain 2 A. There's no reference level associated 09:35 3 with that material either by OSHA or by ACGIH. 09:35 4 Q. So I'm right about that, that an 09:36 5 industrial hygienist could not tell you in 1991 what 09:36 6 a safe level was. Right? 09:36 7 A. There's no reference level, correct. 09:36 8 Q. All right. And that's still true 09:36 9 today, isn't it? 09:36 10 A. That's correct. 09:36 11 Q. Now, as part of what's known as a 09:36 12 respiratory protection program -- strike that. 09:36 13 Let's back up. Tell us would you please what a 09:36 14 respiratory protection program is. 09:36 15 A. A respiratory protection program 09:36 16 involves a written program where the employer or the 09:36 17 company has decided that based on how materials are 09:36 18 being used within the facility and what sort of 09:37 19 control measures are taking place, that a worker can 09:37 20 be protected using a respirator that has been 09:37 21 approved by the National Institute of Occupational 09:37 22 Safety and Health, NIOSH. 09:37 23 And it's a document, it's a program 09:37 24 that starts with a written program and employees are 09:37 25 trained as far as how to use that respirator, how to 09:37 0022 1 T. Bates/McClain 2 clean it, how to maintain it, what's the limitations 09:37 3 associated with the respirator. 09:37 4 And it requires in addition to that, 09:37 5 medical testing and medical monitoring of those 09:37 6 employees to make sure they're fit to wear the 09:37 7 respirator. 09:37 8 Q. And just so that the jury knows what 09:37 9 a respirator is, it would look like a face mask? 09:37 10 A. Well, it could. It's a device that's 09:37 11 worn on the face and depending upon what the 09:38 12 exposure is, what the material is, it could contain 09:38 13 different types of filters or cartridges based on 09:38 14 what the potential exposures might be. 09:38 15 Q. They come in all ranges of 09:38 16 sophistication from a paper mask to a two-cartridge 09:38 17 half-face mask to an air-supplied mask to a full 09:38 18 body suit. Is that right? 09:38 19 A. There's a full range of respirators, 09:38 20 yes. 21 Q. Depending on how hazardous the 09:38 22 chemicals are that they're working around. Am I 09:38 23 right? 09:38 24 A. And also what the potential exposures 09:38 25 might be. 09:38 0023 1 T. Bates/McClain 2 Q. All right. You mentioned one thing 09:38 3 that this document refers to and that is before 09:38 4 employees can be put into a respirator program, the 09:38 5 best practice is that they must have what are called 09:38 6 pulmonary function tests. Am I right? 09:38 7 MR. BRITTINGHAM: Object to the form. 09:38 8 A. That's part of the respirator 09:38 9 program, sure. 09:38 10 Q. And in 1993 there was a respirator 09:38 11 program at Bush Boake Allen. Am I right? 09:39 12 A. I believe so. 09:39 13 (Exhibit 32 previously marked for 14 identification.) 09:39 15 Q. If you'll look over at Exhibit 32 -- 09:39 16 MR. BRITTINGHAM: I don't think 09:39 17 you've given him that. 09:39 18 MR. McCLAIN: I'm sorry. 09:39 19 Q. Well, then, you're not going to be 09:39 20 able to look at it. 09:39 21 A. That's right. 09:39 22 Q. (Handing over.) And what I'm going 09:39 23 to refer you to is paragraph 12. 09:39 24 A. Let me just look at it. 09:39 25 Q. You can read it. Take your time. 09:39 0024 1 T. Bates/McClain 2 A. (Examining document.) Okay. 09:39 3 Q. Pulmonary function tests were being 09:41 4 performed as of 1993. Isn't that true? 09:41 5 A. It says here in 12, "Debbie reported 09:41 6 on the results from our recent pulmonary function 09:41 7 and audiometric testing sessions." 09:41 8 Q. "Some employees showed breathing 09:41 9 problems on the pulmonary function testing." 09:41 10 Correct? 11 A. That's what it says. 09:41 12 Q. And it's also true, isn't it, that at 09:41 13 this time in 1993 -- look back at Bates number 1489. 09:41 14 It says -- this is a work accident report -- 09:42 15 "Employee was working with a butter flavor several 09:42 16 days ago and has developed some irritation in his 09:42 17 eyes that seems to get worse at night. Employee has 09:42 18 been using Visine but his eyes still get irritated." 09:42 19 A. That's what it says, yes. 09:42 20 Q. So it's true, isn't it, that 09:42 21 beginning in 1993 there were complaints about eye 09:42 22 irritation working around the butter flavors at BBA? 09:42 23 A. I mean just reading from this 09:42 24 statement here, "Employee was working with butter 09:42 25 flavors several days ago and has developed some 09:42 0025 1 T. Bates/McClain 2 irritation in his eyes that seems to get worse at 09:42 3 night," so I mean there's no follow-up investigation 09:42 4 here. It's just a statement I guess from the 09:43 5 employee. 09:43 6 Q. But you're aware, are you not, from 09:43 7 your research that there were not just one complaint 09:43 8 of eye irritation. There was a rash of eye 09:43 9 irritation problems at the BBA plant in Chicago in 09:43 10 and about '93 through '95 that was of concern to the 09:43 11 safety committee at the Bush Boake Allen plant. 09:43 12 MR. BRITTINGHAM: Object to the form. 09:43 13 A. There are several eye irritation 09:43 14 cases, yes. 09:43 15 Q. And when we say eye irritation, they 09:43 16 were very severe problems involving some employees 09:43 17 becoming blinded for a few days? 09:43 18 MR. BRITTINGHAM: Objection. 09:43 19 Q. True? 09:43 20 A. I'm not aware of employees being 09:43 21 blinded for a few days, but I'm aware that there 09:43 22 were some eye irritation problems, yes. 09:43 23 Q. Well, we may look at some documents 09:43 24 and try to flesh that out for you. 09:43 25 A. Okay. 09:43 0026 1 T. Bates/McClain 2 Q. But you have seen documents regarding 09:43 3 that subject involving more than one employee? 09:44 4 A. Correct. 09:44 5 Q. And you're aware that BBA attributed 09:44 6 that eye irritation problem to exposure to diacetyl 09:44 7 in the butter flavor? 09:44 8 A. I don't know if they contributed to 09:44 9 diacetyl or the vapors being generated when they 09:44 10 were making butter flavors. 09:44 11 Q. Yes. But part of those vapors 09:44 12 contained diacetyl. Am I right? 09:44 13 A. Yes. 09:44 14 Q. It's true that in regard to the 09:44 15 manufacture of butter flavor at the BBA plant there 09:44 16 were precautions in place in terms of direction that 09:44 17 diacetyl be added to products at -- it's a bad 09:44 18 question. Let me start again. 09:45 19 It's true, isn't it, that there were 09:45 20 directions within the BBA plant not to overheat 09:45 21 diacetyl? 09:45 22 A. That may be the case. I'm not aware 09:45 23 of it. 09:45 24 Q. Well, let's just talk about some 09:45 25 chemistry for a minute. It's true, isn't it, that 09:45 0027 1 T. Bates/McClain 2 at 85 degrees Fahrenheit diacetyl will vaporize? 09:45 3 MR. BRITTINGHAM: Object to the form. 09:45 4 A. It's a volatile material, yes. 09:45 5 Q. Okay. And so it has a very low 09:45 6 temperature at which it vaporizes. Correct? 09:45 7 A. Correct. 09:45 ... 0028 ... 23 Q. Are you aware that BBA's 09:48 24 butter-flavoring products contain the most diacetyl 09:48 25 among all the butter flavors manufactured? 09:48 0029 1 T. Bates/McClain 2 MR. BRITTINGHAM: Object to the form. 09:49 3 A. Manufactured by? 09:49 4 Q. American flavoring companies. 09:49 5 A. I'm not aware of that. 09:49 6 Q. And are you aware that number two in 09:49 7 regard to diacetyl content in regard to butter 09:49 8 flavors sold in the United States, that IFF was the 09:49 9 number two highest -- strike that. Let me start the 09:49 10 question again. 09:49 11 Are you aware, Mr. Bates, that in 09:49 12 regard to butter flavor products sold in the 09:49 13 United States that IFF's products were second only 09:49 14 to BBA's products in terms of diacetyl content? 09:49 15 MR. BRITTINGHAM: Object to the form. 09:49 16 A. I'm not aware of that. 09:49 17 Q. Let me show you what we'll mark as 09:49 18 Exhibit 52. 09:49 19 (Exhibit 52 previously marked for 20 identification.) 09:49 21 Q. This is dated February 10, 1994, 09:49 22 Chicago Local Exhaust Ventilation Maintenance and 09:49 23 Testing Program. In 1994 there were -- 09:50 24 MR. BRITTINGHAM: He may need a 09:50 25 minute to look through it. 09:50 0030 1 T. Bates/McClain 2 Q. I'm going to go to page 3174 under 09:50 3 LEV inventory, 3174. 09:50 4 A. I'll just read this. 09:50 5 Q. Okay. 09:50 6 A. (Examining document.) 09:50 7 Q. That's the page I want to talk about. 09:52 8 A. 74? 09:52 9 Q. Yes. What is local area exhaust or 09:52 10 local -- what does LEV stand for? 09:52 11 A. Local exhaust ventilation. 09:53 12 Q. Local exhaust ventilation. I had the 09:53 13 concept in mind. I just didn't have that 09:53 14 designation in mind. Local exhaust ventilation is 09:53 15 utilized as an engineering control in the world of 09:53 16 industrial hygiene? 09:53 17 A. Yes, it is. 09:53 18 Q. What are engineering controls? 09:53 19 A. Engineering controls are methods that 09:53 20 are used to reduce or eliminate exposures. 09:53 21 Q. All right. And previously we saw 09:53 22 reference to a ventilation fan. That is an 09:53 23 engineering control, is it not? 09:53 24 A. A ventilation fan in and of itself 09:53 25 would be just, it could be just used for pushing 09:53 0031 1 T. Bates/McClain 2 fumes away or circulating air. When you're talking 09:53 3 about removing or eliminating, you're talking about 09:53 4 local exhaust ventilation. 09:53 5 Q. So local exhaust ventilation is more 09:54 6 specific and targeted to the specific chemical 09:54 7 involved. Is that what you're telling me? 09:54 8 A. It's used to remove vapors or dusts. 09:54 9 Q. And it's specifically engineered to 09:54 10 remove particular vapors at a rate that will take 09:54 11 them away from the worker. Am I right? 09:54 12 A. That's the goal, yes. 09:54 13 Q. All right. So it's not a shotgun 09:54 14 approach. It's specifically designed to remove the 09:54 15 chemical of concern from the worker at a rate that 09:54 16 is calculated by engineers and industrial 09:54 17 hygienists. Am I right? 09:54 18 A. Correct. 09:54 19 Q. And those people are generally 09:54 20 trained in the subject of ventilation so that they 09:54 21 can make such calculations so that they know that 09:54 22 the ventilation system that they've designed will 09:54 23 actually remove the vapors from the area? 09:54 24 A. Yes. 09:54 25 MR. BRITTINGHAM: Object to the form. 09:54 0032 1 T. Bates/McClain 2 Q. Because different materials have 09:54 3 different vaporization rates. Am I right? 09:54 4 A. That's correct. 09:54 5 Q. So it's generally the best practice 09:54 6 to know what the chemical that you're trying to 09:55 7 control is. Am I right? 09:55 8 MR. BRITTINGHAM: Object to the form. 09:55 9 A. The best practice with respect to 09:55 10 engineering controls or -- 09:55 11 Q. Local exhaust ventilation. 09:55 12 A. Okay. The best practice is to use 09:55 13 engineering controls to reduce or eliminate an 09:55 14 exposure, yes. 09:55 15 Q. And it's very helpful to know what 09:55 16 chemical that you're trying to control. Am I right? 09:55 17 A. That's correct. 09:55 18 Q. And its physical properties? 09:55 19 A. Yes. 09:55 20 Q. And including the rate at which it 09:55 21 vaporizes? 09:55 22 A. Correct. 09:55 23 Q. So that you can design a ventilation 09:55 24 system of sufficient size and force that will take 09:55 25 that material away from the worker. Am I right? 09:55 0033 1 T. Bates/McClain 2 A. That's correct. 09:55 3 Q. And in the compounding room of BBA's 09:55 4 plant in Chicago, they designed a trunk hood that 09:56 5 would take diacetyl as well as acetaldehyde, acetic 09:56 6 acid, dimethyl sulfide away from the workers. Am I 09:56 7 right? 09:56 8 A. It looks like the hood type that 09:56 9 they're referring to is a trunk hood, which I'm not 09:56 10 quite sure, I would be speculating that that's a 09:56 11 local exhaust ventilation. 09:56 12 Q. Well, it says it at the top of the 09:56 13 page, doesn't it? You don't have to speculate very 09:56 14 much. It's LEV inventory. Right? 09:56 15 A. Well, it's talking about the hood 09:56 16 type, though, trunk hood. 09:56 17 Q. Okay. 09:56 18 A. And the contaminants that they're 09:56 19 looking to control are acetaldehyde, acetic acid, 09:56 20 diacetyl, dust, and dimethyl sulfide. 09:56 21 Q. And all of those were components of 09:56 22 BBA's butter flavoring. Am I right? 09:56 23 A. I would think so. 09:56 24 Q. All right. Now, previously you told 09:56 25 us that a respiratory protection program is 09:57 0034 1 T. Bates/McClain 2 generally a written program. Am I right? 09:57 3 A. That's correct. That's one component 09:57 4 of it, yes. 09:57 5 Q. Let me show you Exhibit 58. 09:57 6 (Exhibit 58 previously marked for 7 identification.) 8 A. (Examining document.) 09:57 9 Q. I'm going to show you two pages from 09:58 10 here. I'm happy to have you review this. Have you 09:59 11 reviewed this before? 09:59 12 A. This document, I don't believe so. 09:59 13 Q. This was not provided to you? You 09:59 14 don't remember it? 09:59 15 A. I don't remember. It may have. I 09:59 16 don't remember. 09:59 17 Q. Let me just direct you to a few 09:59 18 things and I'm happy to have you look at the whole 09:59 19 thing if you want to comment on anything else. This 09:59 20 is dated March 22nd, 1994. It's to safety and 09:59 21 health manual holders from Jack Gillen, Jr. Who is 09:59 22 Mr. Gillen? 09:59 23 A. I believe he was the safety manager 09:59 24 at the time. 09:59 25 Q. And the title is Respiratory 09:59 0035 1 T. Bates/McClain 2 Protection Program and it says, "Attached you will 09:59 3 find the Respiratory Protection Program which was 09:59 4 recently approved for our site." Am I right? 09:59 5 A. Yes. 09:59 6 Q. Look over at the second page. It 09:59 7 says, "The purpose of this Respiratory Protection 09:59 8 Program is to insure that the proper respiratory 09:59 9 protection equipment is provided for all employees 09:59 10 of the Chicago plant who may have occasion to work 09:59 11 in atmospheres that might contain harmful dust, fog, 10:00 12 fumes, mists, gasses, smoke, sprays, or vapors." Is 10:00 13 that right? 14 A. That's correct. 10:00 15 Q. Look over, then, with me at 10:00 16 page 3689. Under hazard assessment it says, "The 10:00 17 potential respiratory exposures that have been 10:00 18 identified for various areas of the Chicago plant 10:00 19 are," and then it lists them: acetaldehyde, 10:00 20 furfural mercaptan, allyl iso thiocyanate, diacetyl, 10:00 21 and acetic acid. Is that right? 10:00 22 A. In compounding, yes. 10:00 23 Q. In compounding. And in the emulsion 10:00 24 room, acetaldehyde and diacetyl. Am I right? 10:00 25 A. That's correct. 10:00 0036 1 T. Bates/McClain 2 Q. Now, acetaldehyde and diacetyl are 10:00 3 used in or were used in BBA's butter flavorings. Am 10:01 4 I right? 5 A. That's correct. 10:01 6 Q. And acetic acid was also used in the 10:01 7 butter flavor. Am I right? 10:01 8 A. I believe so. 10:01 9 Q. And so in regard to compounding, 10:01 10 three of the five chemicals that are listed there 10:01 11 are components of butter flavor. Am I right? 10:01 12 A. Yes. 10:01 13 Q. And in the emulsion room the only two 10:01 14 chemicals listed are two butter flavoring 10:01 15 components. Am I right? 10:01 16 A. Those are the two materials listed, 10:01 17 yes. 18 Q. And somewhere or another someone had 10:01 19 conducted a hazard assessment and determined that 10:01 20 acetaldehyde, diacetyl, and acetic acid were 10:01 21 hazardous. Am I right? 10:01 22 MR. BRITTINGHAM: Object to the form. 10:01 23 A. Well, I think what they have done is 10:01 24 looked and determined that these materials could be 10:01 25 respiratory irritants, yes. 10:01 0037 1 T. Bates/McClain 2 Q. And so someone had made a hazard 10:01 3 assessment of them? 10:01 4 A. I would say -- it says that a "Hazard 10:02 5 assessment will be an ongoing process," yes. 10:02 6 Q. And as we saw before, it was the goal 10:02 7 of the program to protect employees from hazardous 10:02 8 materials. Right? That's the goal of the 10:02 9 respiratory protection program that we just read? 10:02 10 A. Correct. 10:02 11 Q. And the specific chemicals identified 10:02 12 are butter flavoring ingredients. Am I right? 10:02 13 MR. BRITTINGHAM: Object to the form. 10:02 14 A. They are contained in butter flavors, 10:02 15 yes. 16 Q. Let me show you Exhibit 456. 10:02 17 (Exhibit 456 previously marked for 18 identification.) 19 A. (Examining document.) 10:02 20 Q. This is a document from BBA's files, 10:03 21 respirators and their uses on the first page, 10:03 22 organic vapor mask. It says, "Used in the presence 10:03 23 of harmful organic vapors," and it only lists two, 10:03 24 acetaldehyde and diacetyl. Do you see that? 10:03 25 A. Yes, I do. 10:03 0038 1 T. Bates/McClain 2 Q. Do you know who it was within BBA 10:03 3 that as of this date in 1999 had made the 10:03 4 determination that diacetyl and acetaldehyde were 10:03 5 harmful organic vapors? 10:03 6 A. On this document there's no author 10:04 7 who's making that statement. 10:04 8 Q. But certainly someone within BBA had 10:04 9 made a determination by 1999 that both diacetyl and 10:04 10 acetaldehyde were harmful organic vapors? 10:04 11 MR. BRITTINGHAM: Object to the form. 10:04 12 A. Acetaldehyde and diacetyl are 10:04 13 respiratory irritants, yes. 10:04 14 Q. So, therefore, harmful organic 10:04 15 vapors? 10:04 16 A. They're irritating to the respiratory 10:04 17 system. 10:04 18 MR. McCLAIN: Why don't we go ahead 10:04 19 and take a break. 10:04 20 THE VIDEOGRAPHER: Going off the 10:04 21 record. The time is 10:04 a.m. This is the end of 10:04 22 tape 1. 10:04 23 (Break taken from 10:04 a.m. to 10:04 24 10:13 a.m.) 10:05 25 THE VIDEOGRAPHER: We are back on the 10:13 0039 1 T. Bates/McClain 2 record. The time it is 10:13 a.m. This is the 10:13 3 beginning of tape 2. 10:13 4 Q. Mr. Bates, in the BBA plant in 10:13 5 Chicago, there were quite a few problems with 10:13 6 controlling the volatility of diacetyl. Isn't that 10:13 7 right? 8 MR. BRITTINGHAM: Object to the form. 10:14 9 A. There were problems controlling the 10:14 10 vapors in the process, yes. 10:14 11 Q. In fact ultimately they went to a 10:14 12 closed, what's called a closed system for the 10:14 13 manufacture of butter flavors? 10:14 14 A. My understanding was that the closed 10:14 15 system came about due to a customer, Hunt-Wesson, 10:14 16 having issues with the consistency and the quality 10:14 17 of butter flavor materials that the Chicago plant 10:14 18 was producing for them. 10:14 19 Q. Yes, I understand that that's BBA and 10:14 20 IFF's position and that's really not my question. 10:14 21 My question is they went to a closed system, didn't 10:14 22 they? 23 A. They changed their process, yes. 10:14 24 Q. And it was because of the volatility 10:14 25 of diacetyl which was affecting flavor and also had 10:15 0040 1 T. Bates/McClain 2 some implications for eye burns and other things. 10:15 3 True? 4 MR. BRITTINGHAM: Object to the form. 10:15 5 A. I'm not quite sure as far as the 10:15 6 volatility. It was, to my understanding from what 10:15 7 I'm able to understand of the reason they went was a 10:15 8 quality control issue that they were having with 10:15 9 respect to the butter flavors that they were 10:15 10 producing. 10:15 11 Q. But you don't disagree, do you, that 10:15 12 when they went to the closed system, the eye burns 10:15 13 ceased? 10:15 14 A. That was a side benefit certainly. 10:15 15 Q. Let me show you -- and just so that 10:15 16 the jury understands what a closed system is, from 10:15 17 an industrial hygienist's perspective would you tell 10:15 18 the jury what a closed system is? 10:15 19 A. Well, you'd have to compare it to an 10:15 20 open system where I believe the lid on the vessel 10:15 21 that they were using was open to the atmosphere. 10:16 22 I'm not quite sure. I don't believe I've ever seen 10:16 23 the design of the closed system that they finally 10:16 24 came up with, but it reduced the vapors being 10:16 25 emitted from the process. 10:16 0041 1 T. Bates/McClain 2 Q. But typically a closed system will 10:16 3 put the ingredients that are to be mixed in a sealed 10:16 4 vessel as opposed to one that can be opened and, 10:16 5 therefore, workers are protected during the mixing 10:16 6 process and the flavor quality is controlled because 10:16 7 vapors are not released as they would be in an open 10:16 8 system where workers are opening and closing the 10:16 9 mixing vessels to add ingredients. Am I right? 10:16 10 A. Usually in a closed system the 10:16 11 materials are pumped in. 10:17 12 Q. Let me show you what we'll mark as 10:17 13 Exhibit 66. 10:17 14 (Exhibit 66 previously marked for 15 identification.) 10:17 16 Q. Now, this is a document -- I'm going 10:17 17 to paragraph 5 now. That's where I want to refer 10:17 18 your attention. 10:17 19 A. Okay. 10:17 20 Q. On this subject of open versus closed 10:17 21 systems, do you see in 1994 where they say, "We 10:17 22 noticed a yellow cloud of gaseous diacetyl whenever 10:17 23 the lid was unsealed, either for visual inspection 10:17 24 or ingredient addition, whenever the internal 10:17 25 temperature was over 85 degrees"? Do you see that? 10:17 0042 1 T. Bates/McClain 2 A. Let me just read the entire 10:18 3 paragraph. 10:18 4 Q. Sure. I'm going to read you the next 10:18 5 sentence in a minute. 10:18 6 A. (Examining document.) Okay. 10:18 7 Q. Once again, let's start again. "We 10:18 8 noticed a yellow cloud of gaseous diacetyl whenever 9 the lid was unsealed, either for visual inspection 10 or ingredient addition, whenever the internal 11 temperature was over 85 degrees. We should consider 10:19 12 a large lighted sight port." Dropping down, "This 10:19 13 would ensure that the diacetyl content of the 10:19 14 finished product would be more controllable." Do 10:19 15 you see that? 10:19 16 A. "More controllable and reproducible 10:19 17 and eliminate the present odor problem in the plant 10:19 18 production area," yes. 10:19 19 Q. Yes. I mean this stuff was, you 10:19 20 could smell it all over the plant production area 10:19 21 apparently. 10:19 22 MR. BRITTINGHAM: Object to the form. 10:19 23 Q. Right? 10:19 24 A. It talks about eliminating an odor 10:19 25 problem in the plant. 10:19 0043 1 T. Bates/McClain 2 Q. It says, "The top of the reactor" -- 10:19 3 this is number 6 now -- "The top of the reactor has 10:19 4 a vent pipe which was covered with a stainless steel 10:19 5 screen cover. We replaced the screen with a solid 10:19 6 plastic plug to make the reactor air tight. This 10:19 7 will ensure that the diacetyl in the tank will 10:20 8 remain in the tank during manufacture." Do you see 10:20 9 that? 10:20 10 A. Yes, I do. 10:20 11 Q. And then finally on this page, "We 10:20 12 might want to use the top feed" -- this is number 10:20 13 11 -- "We might want to use the top feed line with 10:20 14 an added tube to feed in diacetyl below the butter 10:20 15 flavors surface in the future to lower the potential 10:20 16 volatilization of diacetyl." Do you see that? 10:20 17 A. I'm just reading the whole paragraph. 10:20 18 Okay. Yes. 19 Q. And then another way that they were 10:20 20 wanting to control the volatilization of diacetyl 10:20 21 was to control the temperature. Let me direct you 10:20 22 to the 04 page in the middle of the paragraph 10:21 23 beginning in the paragraph, "The uniform mass was 10:21 24 cooled." Do you see that? 10:21 25 A. Yes. 10:21 0044 1 T. Bates/McClain 2 Q. And then skipping down, "We then 10:21 3 cooled the water in the jacket till the internal 10:21 4 temperature was approximately 85 degrees Fahrenheit 10:21 5 which is below the vaporization temperature of 10:21 6 diacetyl. We could then safely add the T/S butter 10:21 7 and diacetyl." Do you see that? 10:21 8 MR. HALL: 83. 9 MR. McCLAIN: I'm sorry. Did I say 10:21 10 85? 10:21 11 MR. HALL: Yes. 12 Q. Let me read it again. "We then 13 cooled the water in the jacket till the internal 14 temperature was approximately 83 degrees Fahrenheit 15 which is below the vaporization temperature of 16 diacetyl. We could then safely add the T/S butter 17 and diacetyl." 18 A. Let me just read that paragraph. 10:21 19 Q. Sure. 10:21 20 A. (Examining document.) Okay. 10:22 21 Q. My only question was do you see that, 10:23 22 that that was the goal to add the diacetyl at a 10:23 23 temperature under 83 degrees Farenheit? 10:23 24 A. Yes. 10:23 25 Q. That's because the vaporization point 10:23 0045 1 T. Bates/McClain 2 is at 85, and if you heat it above 85, you're going 10:23 3 to lose some of it in a vapor phase. Right? 10:23 4 MR. BRITTINGHAM: Object to the form. 10:23 5 A. You could, yes. 10:23 6 Q. And it says, "The diacetyl," dropping 10:23 7 down on that same page, "The diacetyl was added 10:23 8 last, after the temperature was stabilized at below 10:23 9 83 degrees Farenheit. No fumes or odor of diacetyl 10:23 10 was evident." Do you see that? 10:23 11 A. It says, "This time the diacetyl was 10:23 12 poured by hand in through the top port. No fumes or 10:23 13 odor of diacetyl was evident." 14 Q. Right. And then over at page 2 we 10:23 15 saw the suggestion before that they were going to 10:23 16 add a lighted port so they didn't have to open it. 10:23 17 A. Where are we now? 10:24 18 Q. This is page 05 at the bottom and 10:24 19 it's point number 2, "The addition of a lighted 10:24 20 sight glass is necessary for monitoring the vessel's 10:24 21 content safely and keeping diacetyl loss to a 10:24 22 minimum." Do you see that? 10:24 23 A. Yes. 10:24 24 Q. So it was several steps along the way 10:24 25 by which the Chicago plant moved towards a closed 10:24 0046 1 T. Bates/McClain 2 system to control the loss of diacetyl from the 10:24 3 butter flavoring product. Am I right? 10:24 4 MR. BRITTINGHAM: Object to the form. 10:24 5 A. Would you repeat the question? 10:24 6 Q. If I could, I would. 10:24 7 MR. McCLAIN: Can you read it back? 10:24 8 (Question read.) 10:24 9 A. I think what we were trying to do, 10:25 10 based on what I'm reading here, is to improve the 10:25 11 quality and consistency of the butter flavor that 10:25 12 they were producing. And in order to do that, they 10:25 13 wanted to stabilize the content of the diacetyl and 10:25 14 make sure that it stayed within the vessel, 10:25 15 stabilize the concentration of the diacetyl so it 10:25 16 stayed within the vessel. 10:25 17 Q. But from an industrial hygiene 10:25 18 standpoint, we've already seen that before this time 10:26 19 it was recognized that diacetyl as a hazardous 10:26 20 chemical that needed to be controlled including by 10:26 21 use of a respiratory protection program and by local 10:26 22 exhaust ventilation. Am I right? 10:26 23 MR. BRITTINGHAM: Object to the form. 10:26 24 A. It was being used, diacetyl in this 10:26 25 particular case was being controlled with 10:26 0047 1 T. Bates/McClain 2 engineering controls. 10:26 3 Q. And by respiratory protection? 10:26 4 A. I believe it would be because 10:26 5 respiratory protection for the -- I'm not aware of 10:26 6 anyone at the Bush Boake Allen plant having 10:26 7 respiratory problems associated with butter or 10:26 8 butter flavor. 10:26 9 Q. Well, that's the goal of a 10:26 10 respiratory protection program, isn't it? 10:27 11 A. Through engineering controls and work 10:27 12 practices, yes. 10:27 13 Q. Okay. So my point is, then, the 10:27 14 question that I asked you was that before the 10:27 15 company went to a closed system, it had already been 10:27 16 recognized that diacetyl was a chemical that needed 10:27 17 to be controlled within the BBA plant. Am I right? 10:27 18 A. That's correct. 10:27 19 Q. Okay. And one of the side benefits 10:27 20 that you've already told me about from use of the 10:27 21 closed system even though principally it was for 10:27 22 flavor was it also had health benefits. Am I right? 10:27 23 A. Yes. 10:27 24 Q. Now, in 1995 customers began to have 10:27 25 complaints about butter flavor in the use -- strike 10:27 0048 1 T. Bates/McClain 2 that. In 1995 customers began to complain about the 10:27 3 effects of the use of butter flavors among microwave 10:28 4 popcorn workers. Isn't that right? 10:28 5 A. In 1995? 10:28 6 Q. Yes, sir. 10:28 7 A. I'm not aware of that. 10:28 8 Q. Well, first of all, has anyone shown 10:28 9 you the documents that I showed you here today 10:28 10 before now or are these new to you? 10:28 11 A. I may have seen some of these 10:28 12 documents before. 10:28 13 Q. But you just can't recall? 10:28 14 A. I just can't recall. 10:28 15 Q. Well, let me you show you one that 10:28 16 we'll see if this either refreshes your recollection 10:28 17 or whether it's a new document to you, Exhibit 105. 10:28 18 (Exhibit 105 previously marked for 19 identification.) 20 A. (Examining document.) Okay. 10:30 21 Q. Have you seen this document before 10:33 22 now? 10:33 23 A. I think I may have. 10:33 24 Q. Well, let's discuss it, then. 10:33 25 Exhibit 105 is dated January 31, 1995. 10:33 0049 1 T. Bates/McClain 2 A. Right. 10:33 3 Q. It's entitled Customer Questions - 10:33 4 Butter Flavors. It's from Dennis Sall faxed to 10:33 5 David Carroll and Ron Cavalli. Who is Mr. Sall? 10:34 6 A. I believe at that time he was the 10:34 7 plant manager for the Chicago plan. 10:34 8 Q. And David Carroll was? 10:34 9 A. David Carroll was the person within 10:34 10 BBA who was responsible for material safety data 10:34 11 sheets. 10:34 12 Q. And it says, "Reference attached memo 10:34 13 from Larry Lindberg explaining a telephone call he 10:34 14 received from a customer (Comstock Michigan Fruit). 10:34 15 As you will read, the customer (Mr. Harley Bowman) 10:34 16 is concerned that the butter flavor he is using in 10:34 17 this process is the cause of skin irritations to 10:34 18 several workers." Do you see that? 10:34 19 A. Yes. 10:34 20 Q. And then over on the next page, 10:34 21 "Harley Bowman of Comstock Michigan Fruit called on 10:34 22 1/30/95 to question our experience with skin 10:34 23 irritations from butter. He stated that he had 5 10:35 24 people seek medical attention due to" -- 10:35 25 quote/unquote -- 'dermatitis.' His concern was 10:35 0050 1 T. Bates/McClain 2 repeated exposure to Butter 85030 would lead to 10:35 3 permanent skin problems and his people would have 10:35 4 problems leading 'normal' lives because of this 10:35 5 medical issue. 10:35 6 "Harley then asked what 10:35 7 ingredients" -- I'm skipping down now, bottom 10:35 8 paragraph -- 10:35 9 MR. BRITTINGHAM: Just under the rule 10:35 10 of completeness, would you mind reading the 10:35 11 paragraph just prior to the one you're about to 10:35 12 read? 10:35 13 MR. McCLAIN: "He questioned whether 10:35 14 we had experienced any similar problems internally. 10:35 15 I advised him to my knowledge there have been no 10:35 16 problems with skin irritation." That's what you 10:35 17 want? 10:35 18 MR. BRITTINGHAM: Yes. The rest of 10:35 19 that paragraph. 10:35 20 MR. McCLAIN: "We do require our 10:35 21 employees to wear protective equipment such as 10:35 22 gloves and goggles while processing 85030. He then 10:35 23 referred to an MSDS sheet on the product. We have a 10:35 24 current copy. We reviewed the MSDS together over 10:35 25 the phone. On page 3, 3rd paragraph, it 10:36 0051 1 T. Bates/McClain 2 specifically states repeated contract may cause 10:36 3 allergic dermatitis." 10:36 4 MR. BRITTINGHAM: Thank you. 10:36 5 Q. "Harley then asked what ingredients 10:36 6 in the butter caused it to be an irritant. I told 10:36 7 him I was not a chemist but there was a butter 10:36 8 flavor, diacetyl, that may be the irritant." 10:36 9 On the next page, "At this point we 10:36 10 started to go around in circles on the issue. He 10:36 11 stated he felt BBA should advise all butter users of 10:36 12 the dangers of butter and specifically recommended 10:36 13 what type of PPE (personal protective equipment) 10:36 14 should be worn. He mentioned that he would like to 10:36 15 see some type of industrial hygiene testing done on 10:36 16 exposure to butters and a formal statement to end 10:36 17 users about the risks of butters. 10:36 18 "I told him I would review the 10:36 19 concern with our technical people and more 10:36 20 completely look at internal butter handling to give 10:36 21 him recommendations. I or someone from BBA would 10:36 22 get back to him this week to further explore this 10:37 23 alleged safety issue." 10:37 24 Do you know of any instance in which 10:37 25 BBA informed the people at ConAgra about their 10:37 0052 1 T. Bates/McClain 2 internal procedures regarding butter flavors as is 10:37 3 reflected that Mr. Sall suggested would be done with 10:37 4 Mr. Bowman? 10:37 5 MR. BRITTINGHAM: Object to the form. 10:37 6 A. Whether anyone from ConAgra contacted 10:37 7 BBA regarding -- 10:37 8 Q. No. 10:37 9 A. What are you asking? 10:37 10 Q. The question is this. Mr. Sall 10:37 11 suggests that they were going to get back to 10:37 12 Mr. Bowman to give him recommendations about how 10:37 13 butter flavors were handled within the BBA plant. 10:37 14 Am I right? 15 A. Someone would get back to him, yes. 10:37 16 Q. Now, in fact I've never seen a 10:37 17 document that anyone got back to Mr. Bowman. I've 10:37 18 never seen any correspondence with Mr. Bowman. And 10:38 19 to my knowledge no one has ever testified that 10:38 20 anyone did call Mr. Bowman with such 10:38 21 recommendations. Are you aware of any? 10:38 22 A. I'm not aware that -- 10:38 23 MR. BRITTINGHAM: Objection. Move to 10:38 24 strike. 10:38 25 Q. Are you aware of any? 10:38 0053 1 T. Bates/McClain 2 A. I'm not aware that anyone contacted 10:38 3 Mr. Bowman. What I'm aware of is that it looks like 10:38 4 the material safety data sheet that's attached to 10:38 5 this document that does recommend that protective 10:38 6 gloves be worn, eye protection, ventilation, and 10:38 7 respiratory protection. 10:38 8 Q. Yeah but he already had that. That's 10:38 9 what the document says. 10:38 10 A. Yes. 10:38 11 Q. He already had it and they went over 10:38 12 it with him. But they were going to get back to him 10:38 13 with more specific recommendations, which is what he 10:38 14 was asking for. Right? 10:38 15 MR. BRITTINGHAM: Objection. 10:38 16 A. He was told that -- he reviewed the 10:38 17 concerns with the technical people and a more 10:38 18 complete look at the internal butter handling to 10:38 19 give him recommendations. I or someone from BBA 10:39 20 would get back to him. 10:39 21 Q. And we have no evidence that anyone 10:39 22 got back to Mr. Bowman. Am I right? 10:39 23 A. I'm not aware. 10:39 24 Q. And during this time period are you 10:39 25 aware of any document whereby BBA contacted ConAgra 10:39 0054 1 T. Bates/McClain 2 or its predecessors at the Marion, Ohio plant to 10:39 3 give them recommendations about the use of butter 10:39 4 flavors based upon what was being done at the BBA 10:39 5 plant? 10:39 6 A. Beyond what is on the material safety 10:39 7 data sheet? 10:39 8 Q. That's right. 9 A. I'm not aware of it, no. 10:39 10 Q. Now, let's talk about this for a 10:39 11 minute. We saw that Mr. Carroll is mentioned in 10:39 12 these documents. But Mr. Carroll was criticized 10:39 13 within BBA for having dumbed down your material 10:39 14 safety data sheets. 10:39 15 MR. BRITTINGHAM: Objection. Move to 10:39 16 strike. 10:39 17 Q. Let me show you what we've marked as 10:41 18 1758. 10:41 19 (Exhibit 1758 previously marked for 20 identification.) 21 A. (Examining document.) Okay. 10:41 22 Q. First of all, let's set the stage a 10:44 23 little bit here, Mr. Bates. You told us that Dave 10:44 24 Carroll was the person responsible for developing 10:44 25 material data safety sheets. Am I right? 10:44 0055 1 T. Bates/McClain 2 A. That's correct. 10:44 3 Q. And Dennis Sall was the plant manager 10:44 4 in Chicago. Am I right? 10:44 5 A. That's correct. 10:44 6 Q. And we previously saw their two names 10:44 7 on that communication with the Comstock Fruit 10:44 8 Company that was asking for more information than 10:44 9 what was contained in the material safety data 10:44 10 sheets. Am I right? 10:44 11 MR. BRITTINGHAM: Object to the form. 10:44 12 A. That's one that's dated January 31st, 10:44 13 1995? 10:44 14 Q. Yes, sir. 10:44 15 A. Okay. 10:44 16 Q. And here we have Mr. Sall and 10:44 17 Mr. Carroll discussing how mixtures should be rated 10:45 18 in terms of their hazard classification. Am I 10:45 19 right? 10:45 20 MR. BRITTINGHAM: Object to the form. 10:45 21 A. What I see here is a letter from 10:45 22 Dennis Sall to Dave with his statements regarding -- 10:45 23 there's nothing here from Dave back to Dennis. It's 10:45 24 a one-way discussion right now. 10:45 25 Q. Right. You know you can see what 10:45 0056 1 T. Bates/McClain 2 Mr. Sall's concerns were? 10:45 3 A. In the second paragraph he says, "It 10:45 4 is my understanding that you have asked that we 10:45 5 change our system to consider the total number of 10:45 6 ingredients in a mixture. The general result will 10:45 7 mean that the mixture hazard rating will be lower." 10:45 8 Q. Yes. 10:45 9 A. I guess it's Mr. Sall's -- 10:45 10 Q. Concern. 10:45 11 A. Conclusion. 10:46 12 Q. Collusion? 10:46 13 A. No. Conclusion. 10:46 14 Q. Let's tell the jury what we're 10:46 15 talking about because I think we're talking below 10:46 16 the radar here. 10:46 17 A. Okay. A mixture pursuant to the OSHA 10:46 18 Hazard Communication Standard should be rated as 10:46 19 hazardous as its most hazardous ingredient which is 10:46 20 contained in the mixture over 1 percent of the 10:46 21 mixture. Am I right? 10:46 22 MR. BRITTINGHAM: Objection. 10:46 23 A. You take a look, you analyze and you 10:46 24 do an assessment of all the ingredients that are 10:46 25 greater than 1 percent, and you look at the hazards 10:46 0057 1 T. Bates/McClain 2 associated with those materials, yes. 10:46 3 Q. Right. And the most hazardous 10:46 4 ingredient, absent a test demonstrating that it's 10:46 5 less hazardous, the most hazardous ingredient is the 10:46 6 rating that one puts on the mixture under the OSHA 10:46 7 Hazard Communication Standard. Am I right? 10:46 8 MR. BRITTINGHAM: Objection. 10:47 9 A. That would be part of your analysis, 10:47 10 yes. 11 Q. And apparently Mr. Sall was 10:47 12 contending that Mr. Carroll did not want to follow 10:47 13 that procedure in regard to mixtures at the Chicago 10:47 14 plant. Am I right? 10:47 15 MR. BRITTINGHAM: Objection. 10:47 16 A. I don't see where Dennis -- not 10:47 17 Dennis -- where Dave is responding, Mr. Carroll is 10:47 18 responding or what Mr. Carroll is proposing to 10:47 19 Mr. Sall. 10:47 20 Q. Well, but you see what Mr. Sall is 10:47 21 saying. Right? 10:47 22 A. I see what he's saying, yes. 10:47 23 Q. He says, "It is my understanding that 10:47 24 you have asked that we change our system to consider 25 the total number of ingredients in a mixture. The 0058 1 T. Bates/McClain 2 general result will mean that the mixture hazard 3 rating will be lower." 10:47 4 A. I don't know if that's what Dennis -- 10:47 5 Q. I'm not asking you to judge the 10:47 6 credibility of Mr. Sall. I'm just saying that's 10:47 7 what he says. 10:47 8 A. That's what he's saying, yes. 10:48 9 Q. And Mr. Carroll was the one in charge 10:48 10 of material safety data sheets? 10:48 11 A. Yes. 10:48 12 Q. And material safety data sheets to 10:48 13 your knowledge are all that were ever sent to 10:48 14 Comstock Fruit or ConAgra or anyone else that was 10:48 15 using butter flavors from BBA in the manufacture of 10:48 16 microwave popcorn? 10:48 17 A. To the best of my knowledge, yes. 10:48 18 Q. Let's look at some other documents. 10:48 19 I want to take you to Exhibit 187. 10:48 20 MR. McCLAIN: Is there a time issue? 10:48 21 A. (Examining document.) Okay. 10:48 22 (Exhibit 187 previously marked for 23 identification.) 10:50 24 Q. This is Exhibit 187 dated 10:50 25 August 24th, 1995. Now, this document illustrates 10:50 0059 1 T. Bates/McClain 2 that as of August 24th, 1995 there were still eye 10:50 3 problems occurring at the BBA plant. Am I right? 10:50 4 A. (Examining document.) Yes. 10:50 5 Q. And it says, "Carlos Montenegro will 10:50 6 research diacetyl and its effects on the eyes and 10:50 7 other mucous membranes and have information for the 10:50 8 next meeting." Am I right? 10:50 9 A. Yes. 10:50 10 Q. And you have reviewed 10:50 11 Mr. Montenegro's testimony? 10:50 12 A. I have looked at his deposition. 10:50 13 Q. And you're aware that he said that he 10:50 14 read the MSDS. Am I right? 10:51 15 MR. BRITTINGHAM: Object to the form. 10:51 16 Misstates the evidence. 10:51 17 A. Could you show me what you're 10:51 18 referring to? 10:51 19 Q. Sure. This is Mr. Montenegro's 10:51 20 deposition. I don't know that we need to mark it as 10:51 21 an exhibit but I'll give it to you for reference, 10:51 22 page 100, page 100 of the deposition. 10:51 23 A. Okay. 24 Q. Do you see that he first read the 10:51 25 MSDS, at the bottom of the page he's describing what 10:52 0060 1 T. Bates/McClain 2 he does. He went to the MSDS and then he went to 10:52 3 the periodicals to look at the information that he 10:52 4 was able to find from the MSDS sheet. 10:52 5 MR. BRITTINGHAM: Object to the form 10:52 6 of the question. Under the rule of completeness, 10:52 7 why don't we just read the answer by Mr. Montenegro 10:52 8 that begins on page 100. 10:52 9 MR. McCLAIN: I'm happy to do that. 10:52 10 Q. "It takes quite sometime. But like I 10:52 11 said I didn't know how long it took because first 10:52 12 you read the MSDSs and you're trying to see where 10:52 13 they are trying to inform you. And after that, you 10:53 14 start reading and searching for periodicals and 10:53 15 sometimes they're not available to you and you have 10:53 16 to find the information. And sometimes the 10:53 17 information is in other languages and I don't know, 10:53 18 for example, German and I don't understand German 10:53 19 and sometimes I have to translate those papers into 10:53 20 English or other language that I understand, and 10:53 21 that makes it more difficult." Do you see that? 10:53 22 A. Yes. I see what you read to us. 10:53 23 Q. You're aware, are you not, that 10:53 24 Mr. Montenegro threw away the research that he 10:53 25 collected? 10:53 0061 1 T. Bates/McClain 2 MR. BRITTINGHAM: Object to the form. 10:53 3 A. Somewhere he talks about -- 10:53 4 Q. Yes. Look over at page 97. 10:53 5 A. Where? 10:54 6 Q. 97. The question was, "With respect 10:54 7 to the articles that you found, what did you 10:54 8 ultimately do with those?" "I toss it. Because a 10:54 9 lot of paperwork I had I just throw in the garbage." 10:54 10 Did you see that? 10:54 11 A. Yes. 10:54 12 Q. Did you see that? 10:54 13 A. Yes. 10:54 14 Q. So you don't know what articles 10:54 15 Mr. Montenegro collected. Am I right? 10:54 16 A. Correct. 10:54 17 Q. And you don't know which periodicals 10:54 18 he consulted. Am I right? 10:54 19 A. That's correct. 10:54 20 Q. Are you aware that there is a 10:54 21 diacetyl supplier called BASF? 10:54 22 A. Yes. 10:54 23 Q. And they are a German company, are 10:54 24 they not? 25 A. Yes, they are. 10:54 0062 1 T. Bates/McClain 2 Q. And you're aware that they conducted 10:54 3 research in Germany on diacetyl as early as 1993. 10:54 4 Am I right? 10:54 5 A. Yes. 10:54 6 Q. And you're aware that in that study 10:54 7 they conducted in 1993 in Germany that they 10:54 8 determined that diacetyl would cause permanent lung 10:54 9 injury to rats? 10:54 10 MR. BRITTINGHAM: Object to the form. 10:54 11 Q. True? 10:55 12 A. No. I believe what they said in 10:55 13 their study is that there is no chronic respiratory 10:55 14 problems associated with diacetyl. There was an 10:55 15 acute exposure but not a chronic exposure. 10:55 16 Q. Well, didn't they find emphysematous 10:55 17 changes in the lungs of the rats? 10:55 18 A. Used with the pure diacetyl. Again, 10:55 19 my understanding is it was an unpublished study. It 10:55 20 was not peer reviewed. 10:55 21 Q. But you're not suggesting that 10:55 22 emphysema is good, are you? 10:55 23 MR. BRITTINGHAM: Objection. 10:55 24 A. No, I'm not suggesting that. 10:55 25 Q. We ought to protect workers from 10:55 0063 1 T. Bates/McClain 2 emphysematous changes in their lungs, shouldn't we? 10:55 3 MR. BRITTINGHAM: Objection. 10:55 4 A. We're talking about the pure 10:55 5 diacetyl. 10:55 6 Q. Absolutely. 10:55 7 A. Right. 10:55 8 Q. And that's what comes off when you 10:55 9 heat it, right, in vapor? Pure diacetyl will come 10:55 10 off, diacetyl that's heated to above 85 degrees, 10:55 11 won't it? 12 A. It's part of the vapors that come off 10:56 13 it. 10:56 14 Q. And that's one of the things that you 10:56 15 were trying to protect workers from exposure to at 10:56 16 the BBA plant by using a respiratory protection 10:56 17 program, am I right, exposure to diacetyl? 10:56 18 MR. BRITTINGHAM: Objection. 10:56 19 A. That's true except that I think the 10:56 20 study that you're referring to, the BASF study, was 10:56 21 not available to anyone in the industry at that 10:56 22 time. 10:56 23 Q. Well, we're going to come back to 10:56 24 that. But we know that the study existed in 1993. 10:56 25 Am I right? 10:56 0064 1 T. Bates/McClain 2 A. I think we found out about that in 10:56 3 2001. 10:56 4 Q. You found out about that in 2001? 10:56 5 A. Yes. 10:56 6 Q. We don't have any document that was 10:56 7 collected by Mr. Montenegro in 1995 because he 10:56 8 tossed it. Am I right? 10:56 9 A. That's what he says in his 10:56 10 deposition. 10:56 11 Q. Now, as of 1999 diacetyl was still 10:56 12 identified within BBA -- let me show you 10:57 13 Exhibit 459 -- as a chemical of concern. Am I 10:57 14 right? 15 (Exhibit 459 previously marked for 16 identification.) 17 A. (Examining document.) 10:57 18 Q. Down at the bottom of the page. 10:57 19 A. Oh. I'm looking for it to be in 10:57 20 alphabetical order. 10:58 21 Q. No, it's not. It's by department I 10:58 22 think. 23 A. Right. 24 Q. In the compounding flavors department 10:58 25 the chemical of concern was diacetyl. Am I right? 10:58 0065 1 T. Bates/McClain 2 A. Yes. 10:58 3 Q. As late as 1999. 10:58 4 A. The date on this is 1999, yes. 10:58 5 Q. And you're aware, are you not, that 10:58 6 in regard to the butter flavors produced at BBA, no 10:58 7 one ever identified within any MSDS sheet that 10:58 8 diacetyl was in the product. Am I right? 10:58 9 A. On the MSDS? 10:58 10 Q. Yes. 10:59 11 A. No, because there's trade secrets 10:59 12 that are permitted by the OSHA Hazard Communication 10:59 13 Standard. That information does not necessarily 10:59 14 have to appear on the MSDS. 10:59 15 Q. Well, let's take it step by step. 10:59 16 Diacetyl is not listed on the MSDS. Am I right? 10:59 17 A. That's correct. 10:59 18 Q. And you're not suggesting, are you, 10:59 19 that other members of the flavoring industry did not 10:59 20 know that diacetyl was in your butter flavor? 10:59 21 A. No. I'm sure they knew. 10:59 22 Q. So it's no secret at all, is it? 10:59 23 A. No, it's not a secret. 10:59 24 MR. BRITTINGHAM: Object to the form. 10:59 25 Q. It's not listed on the material 10:59 0066 1 T. Bates/McClain 2 safety data sheet for some reason but it's not 10:59 3 because it's some secret? 10:59 4 A. It's not listed on the material data 10:59 5 safety sheet because that information is considered 10:59 6 trade secret within the industry. 10:59 7 Q. Well, what kind of a Humpty-Dumpty 10:59 8 world is this? 10:59 9 MR. BRITTINGHAM: Objection. Move to 10:59 10 strike. 10:59 11 Q. That words mean what they say they 10:59 12 mean but they don't have a common meaning? If 11:00 13 everyone knows about it, it cannot be a secret, can 11:00 14 it? 15 MR. BRITTINGHAM: Objection. Move to 11:00 16 strike. 11:00 17 MR. McCLAIN: That's right. It was a 11:00 18 bad question. We need to take a break in a minute 11:00 19 so we can all just move to another area. 11:00 20 Q. But here's the question. It was not 11:00 21 a secret in the trade, was it? All flavoring 11:00 22 companies knew that diacetyl was in butter flavor. 11:00 23 Am I right? 24 A. That's correct. 11:00 25 Q. And you didn't list it on your 11:00 0067 1 T. Bates/McClain 2 material safety data sheet to your customers, did 11:00 3 you? 4 A. No. 11:00 5 MR. McCLAIN: This would be a good 11:00 6 time for our break. 11:00 7 THE VIDEOGRAPHER: Going off the 11:00 8 record. The time is 11 a.m. This is the end of 11:00 9 tape 2. 11:00 10 (Break taken from 11:00 a.m. to 11:00 11 11:14 a.m.) 11:14 12 THE VIDEOGRAPHER: We are back on the 11:14 13 record. The time is 11:14 a.m. This is the 11:14 14 beginning of tape 3. 11:14 15 Q. Now, we made mention of the BASF rat 11:14 16 study which is an issue that probably will come up 11:14 17 in the trial of this matter. And there's some 11:14 18 debate regarding just when BBA or IFF learned of the 11:14 19 results of that rat study. Am I right? 11:14 20 A. Correct. 11:14 21 Q. But there's no question that by 1998 11:14 22 at the very latest in the files of BBA was a 11:14 23 material safety data sheet that contained the 11:15 24 results of the rat study, page 2, rat inhalation 11:15 25 LC50, 2.25 to 5.2 milligrams per litre. Do you see 11:15 0068 1 T. Bates/McClain 2 that? 11:15 3 MR. BRITTINGHAM: Object to the form. 11:15 4 Q. Do you see that? 11:15 5 A. (Examining document.) Yes. 11:15 6 Q. And it identifies that material as 11:15 7 being moderately toxic? 11:15 8 A. Yes. 11:15 9 Q. And we know that at least it was 11:15 10 there by 1998 but there's a fax designation on the 11:15 11 front of October 27th, 1998. Am I right? 11:15 12 A. Correct. 11:15 13 Q. And the original date of this MSDS is 11:15 14 1994. I'm still on the front page. 11:15 15 A. Okay. 11:15 16 Q. Right? 11:15 17 A. Yes. 11:15 18 Q. And 1997 is the revision date? 11:15 19 A. Correct. 11:16 20 Q. And so you don't have any reason to 11:16 21 believe that BASF Corporation was attempting to hide 11:16 22 this information, do you -- 11:16 23 MR. BRITTINGHAM: Objection. 11:16 24 Q. -- on the results of the rat study? 11:16 25 A. No. 11:16 0069 1 T. Bates/McClain 2 Q. In fact it's contained here on the 11:16 3 MSDS sheet for diacetyl. Am I right? 11:16 4 A. Yes. 11:16 5 Q. You're also aware, are you not, that 11:16 6 BBA had other suppliers of diacetyl including Citrus 11:16 7 and Allied. Am I correct? 11:17 8 A. Yes. 11:17 9 Q. And it's true, isn't it, that every 11:17 10 container of diacetyl came with a shipping label 11:17 11 identifying respiratory protection that should be 11:17 12 employed when working around the diacetyl supplied 11:17 13 to BBA by Citrus & Allied? 11:17 14 MR. BRITTINGHAM: Object to the form. 11:17 15 A. Can you show me the documents that 11:17 16 you're referring to? 11:17 17 Q. Sure. This is Exhibit 1599. 11:17 18 (Exhibit 1599 previously marked for 19 identification.) 11:18 20 A. (Examining document.) What I believe 11:18 21 you have here is a document that is for 11:18 22 transportation because I refer you to the hazard 11:18 23 class, the UN number, this UN2346, that's a 11:18 24 designation, that's a transportation designation. 11:18 25 Q. Sure. I understand that. 11:18 0070 1 T. Bates/McClain 2 A. And what that would be referring to 11:18 3 is a reference by the Department of Transportation 11:18 4 that when you had a spill of this material, let's 11:18 5 say you had a drum punctured on the road or 11:18 6 something like that, that in order to clean up that 11:18 7 spill, you need to be wearing safety goggles, 11:18 8 protective gloves, a splash apron, and a respirator. 11:19 9 This doesn't really refer to working with this 11:19 10 material in the workplace. 11:19 11 Q. Okay. It's true, isn't it, that this 11:19 12 says, "Where checked, use the protective equipment 11:19 13 and clothing if exposed to this material in use or 11:19 14 in an emergency." Right? 11:19 15 A. It says that, yes. 11:19 16 Q. So it's not just emergency spills. 11:19 17 It's use of this material that this label says on 11:19 18 its face. Am I right? 11:19 19 A. Again, my interpretation would be on 11:19 20 a spill of this material, and if you had to clean up 11:19 21 a spill of the material, you would be using these 11:19 22 protective devices. 11:19 23 Q. Well, that's not what it says. "If 11:19 24 exposed to this material in use or in an emergency." 11:19 25 Now, a spill is an emergency but use is something 11:19 0071 1 T. Bates/McClain 2 different than an emergency. Wouldn't you agree 11:19 3 with that? 4 MR. BRITTINGHAM: Object to the form. 11:19 5 A. I'm not quite sure what they mean by 11:20 6 that. 11:20 7 Q. But this came with every shipment of 11:20 8 diacetyl from Citrus & Allied, these shipment sheets 11:20 9 that came with it. Right? 11:20 10 A. The bill of ladings, yes. 11:20 11 Q. And if you look back here on this one 11:20 12 that's marked 8/12/01, you can see that -- 11:20 13 A. Let's get on the same page. 11:20 14 MR. BRITTINGHAM: That's the date 11:20 15 you're referring to? 11:20 16 MR. McCLAIN: Yes. There's a whole 11:20 17 stack of them on different dates. 11:20 18 Q. There's no internal numbering but it 11:20 19 says 8/21 at the bottom here, date. 11:20 20 A. Okay. Are we on the same page? 11:21 21 Q. Yes, in the list -- 11:21 22 MR. BRITTINGHAM: 8/21/01, is that 11:21 23 the date? 11:21 24 MR. McCLAIN: Yes. 25 Q. It talks about using air purifying 11:21 0072 1 T. Bates/McClain 2 respirators when we're using this material. Do you 11:21 3 see that? 4 MR. BRITTINGHAM: Object to the form 11:21 5 of the question. 6 Q. Do you see the box that's checked? 11:21 7 A. Where are you pointing to? 11:21 8 Q. Air purifying respirators. 11:21 9 A. That box is checked, yes. 11:21 10 Q. And an air purifying respirator is 11:21 11 more than a paper mask. It's more than just a mask 11:21 12 with filters. It's air supplied outside of the 11:21 13 area. Isn't that right? 11:21 14 A. No. 11:21 15 MR. BRITTINGHAM: Object to the form. 11:21 16 A. That's incorrect. 11:21 17 Q. Tell us what it is. 11:21 18 A. Air purifying respirator could be a 11:21 19 cartridge respirator that the vapors would be 11:21 20 brought in through the cartridges as opposed to an 11:21 21 atmosphere supplying respirator. That would be the 11:22 22 air supply respirator. 11:22 23 Q. All right. But it's a level of 11:22 24 protection above just simple respiratory protection. 11:22 25 Am I right? 0073 1 T. Bates/McClain 2 A. Well, respiratory protection doesn't 11:22 3 designate what type of respirator you use. 11:22 4 Q. But it is one of the boxes you could 11:22 5 check and there it's saying use air purifying 11:22 6 respirators when using diacetyl. Am I right? 11:22 7 MR. BRITTINGHAM: Object to the form. 11:22 8 A. Again, I believe this is with respect 11:22 9 to cleaning of the spill. 11:22 10 Q. Well, you've not inquired of Citrus & 11:22 11 Allied, have you? 11:22 12 A. Have I? 11:22 13 Q. Yes. 11:22 14 A. No, I aren't. 11:22 15 Q. And they clearly use two terms, use 11:22 16 or an emergency. Right? 11:22 17 A. "Exposed to this material in use or 11:22 18 an emergency," yes. 11:22 19 Q. Trying to differentiate between two 11:22 20 conditions, use or an emergency, is how you would 11:22 21 interpret that as an industrial hygienist. True? 11:22 22 A. I would interpret, just looking at 11:23 23 this document here as a bill of lading and this UN 11:23 24 number that they're talking about cleaning of a 11:23 25 spill. I would refer back to the material safety 11:23 0074 1 T. Bates/McClain 2 data sheet and see what they said with respect to 11:23 3 respiratory protection on that. 11:23 4 Q. But it's clear that this document 11:23 5 came with every shipment. 11:23 6 A. There's quite a few documents here. 11:23 7 Q. Now, let's switch our attention for a 11:23 8 minute to IFF. IFF by the year 2000 had acquired 11:24 9 similar information, hadn't it, about diacetyl? 11:24 10 MR. BRITTINGHAM: Object to the form. 11:24 11 A. In what form are you talking about? 11:24 12 Q. Well, health hazard information that 11:24 13 was supplied to it in its files? 11:24 14 A. From vendors, yes, suppliers. 11:24 15 MR. McCLAIN: Scott, we don't have a 11:24 16 number for this one, do we? 11:24 17 MR. HALL: Bates. 11:24 18 MR. McCLAIN: Let's put a sticker on 11:24 19 this as Bates-1. Can we mark that? 11:24 20 (Exhibit Bates-1 marked for 21 identification.) 11:25 22 Q. Just to clarify, by 2000 IFF had 11:25 23 acquired BBA. Am I right? 11:25 24 A. Sometime during that time period, 11:25 25 yes. 0075 1 T. Bates/McClain 2 Q. And so all of the information that 11:25 3 BBA had about diacetyl was now in the possession of 11:25 4 IFF by 2000? 11:25 5 MR. BRITTINGHAM: Object to the form. 11:25 6 A. I don't know that for certain. I 11:25 7 know there was a transition period of time where the 11:25 8 formulas were being moved over from BBA that the 11:25 9 Chicago plant was still in operation. So exactly 11:25 10 what information when you say all was moved over to 11:25 11 IFF, I'm not quite sure. 11:26 12 Q. Maybe I didn't phrase that correctly. 11:26 13 All the information that was within the BBA 11:26 14 organization was now being controlled by IFF, am I 11:26 15 right, in one fashion or another? 11:26 16 A. Again, I don't know what you mean by 11:26 17 controlled. 11:26 18 Q. Well, Dave Carroll was an employee of 11:26 19 IFF by this time. Am I right? 11:26 20 A. By 2000? Probably. 11:26 21 Q. All right. And Dennis Sall was? 11:26 22 A. I don't know if Dennis was ever an 11:26 23 employee of IFF. I don't know his work history. 11:26 24 Q. But the Chicago plant and all the 11:26 25 documents that we're looking at were controlled by 11:26 0076 1 T. Bates/McClain 2 IFF by 2000, wasn't it? 11:26 3 MR. BRITTINGHAM: Object to the form. 11:26 4 A. Again, when you say controlled -- 11:26 5 Q. You bought it by then. 11:26 6 A. We bought it by then. Okay. 11:26 7 Q. Then let's go from 2000 and look at 11:26 8 IFF and information in their files. Let's look at 11:26 9 Bates Exhibit 1. 11:27 10 A. You can see on the front page, this 11:27 11 document is 7/24 of 2000. Correct? 11:27 12 MR. BRITTINGHAM: So the record is 11:27 13 clear, that's the date of the fax header. 11:27 14 MR. McCLAIN: Yes. 15 Q. It had to exist at least by this 11:27 16 date. Correct? It was probably created before that 11:27 17 date? 11:27 18 A. I don't know what I'm looking at 11:27 19 here. This looks like it's a page from a material 11:27 20 safety data sheet. The header is not an IFF header 11:27 21 so I'm not quite sure what I'm looking at. 11:27 22 Q. Well, it's been represented to us and 11:27 23 produced to us as material safety data sheets in 11:27 24 your possession. 11:27 25 MR. BRITTINGHAM: Objection. 11:27 0077 1 T. Bates/McClain 2 A. It's not a complete material safety 11:27 3 data sheet. 11:27 4 Q. No. This is the way it was produced 11:27 5 to us, though, and I really just want to go through 11:27 6 an internal document within this group exhibit found 11:27 7 here, DSM, do you see that one? It's Exhibit 82 at 11:28 8 the bottom. 11:28 9 MR. BRITTINGHAM: Take what time you 11:28 10 need to look at the other document if you feel you 11:28 11 need to. 11:28 12 Q. And I will let you. 11:28 13 A. (Examining document.) 11:28 14 Q. You tell me when you're ready but the 11:29 15 only page I want to talk about is 1782. 11:29 16 A. (Examining document.) Okay. 11:29 17 Q. I just want to look at page 1782 in 11:33 18 this document. Is DSM Food Specialties USA, Inc. a 11:33 19 supplier of IFF's? 11:34 20 A. Yes. 11:34 21 Q. Do you see they have supplied 11:34 22 information about diacetyl? 11:34 23 A. Yes. 11:34 24 Q. Do you see under health hazard 11:34 25 summary, "Effects - inhalation: Harmful: possible 11:34 0078 1 T. Bates/McClain 2 risk of irreversible effects through inhalation; 11:34 3 necrosis"? 11:34 4 A. Yes. 11:34 5 Q. "Skin contact: Irritating 11:34 6 (reddening)"? 11:34 7 A. Yes. 11:34 8 Q. "Eye contact: May cause irritation; 11:34 9 pain; impaired vision"? 11:34 10 A. Yes. 11:34 11 Q. Did IFF at any time before 2004 ever 11:34 12 notify their customers that the use of butter 11:34 13 flavors containing diacetyl was harmful and that 11:35 14 there was a possible risk of irreversible effects 11:35 15 through inhalation or necrosis that you are aware 11:35 16 of, Mr. Bates? 11:35 17 MR. BRITTINGHAM: Objection. 11:35 18 A. This is a statement on, and I looked 11:35 19 at a number of the safety data sheets that were part 11:35 20 of this package and none of the other suppliers 11:35 21 indicated that statement, so I really don't know 11:35 22 where that statement is coming from. What they mean 11:35 23 by irreversible effects, I don't know. 11:35 24 In our work with diacetyl in our 11:35 25 plants, we've never had any employees who have had 11:35 0079 1 T. Bates/McClain 2 respiratory problems associated with diacetyl or 11:35 3 butter flavors, so I don't know the relevance of 11:36 4 irreversible effects. 11:36 5 Q. Well, we're going to talk about 11:36 6 whether or not you've ever had any effects or not. 11:36 7 You have had a survey done and you did find 11:36 8 restrictive defects in employees and you found 11:36 9 obstructive defects in 15 employees and you looked 11:36 10 no further. Isn't that right? 11:36 11 MR. BRITTINGHAM: Objection. Move to 11:36 12 strike. 11:36 13 A. You're talking about the study that 11:36 14 we did looking at the respiratory health of our 11:36 15 workers? 11:36 16 Q. Yes. 11:36 17 A. The conclusion of that study was that 11:36 18 there was no workplace relationship between, for 11:36 19 workers that were used at those three plants. 11:36 20 Q. Well, let's just back up for a 11:36 21 second. Let's answer one question at a time. You 11:36 22 mentioned it and that's why I'm bringing it up. You 11:36 23 did have a survey done of your plant workers. Am I 11:36 24 right? 25 A. A medical review was done, yes. 11:37 0080 1 T. Bates/McClain 2 Q. They did find an excess number of 11:37 3 your employees had a restrictive defect in their 11:37 4 breathing capacity. True? 11:37 5 MR. BRITTINGHAM: Object to the form. 11:37 6 A. True but the conclusion was that it 11:37 7 wasn't work-related. 8 Q. I don't want to interrupt you except 11:37 9 that I'll discuss what you think the conclusion was 11:37 10 in a minute. I just want to get the facts out. 11:37 11 Okay? Without debating it. 11:37 12 MR. BRITTINGHAM: He can answer the 11:37 13 question and then he does have a right to explain 11:37 14 it. 11:37 15 MR. McCLAIN: He does have and that's 11:37 16 what I'm going to give him. 11:37 17 Q. The fact is that they did find a 11:37 18 restrictive defect, true, in an excessive number of 11:37 19 employees? 11:37 20 A. At one of the plants, yes. 11:37 21 Q. And they also found dyspenia or 11:37 22 shortness of breath in an excessive number of 11:37 23 employees. Isn't that right? 11:37 24 A. I'll have to look at the study. 11:37 25 Q. Okay. And they also found 11:37 0081 1 T. Bates/McClain 2 obstructive abnormalities in 15 employees. Isn't 11:37 3 that right? 4 MR. BRITTINGHAM: Let me just 11:38 5 object -- 11:38 6 MR. McCLAIN: I'm going to let him 11:38 7 explain it. 11:38 8 MR. BRITTINGHAM: -- to the form of 11:38 9 the question. I would also object, maybe we could 11:38 10 put some time frame here on the time of the study, 11:38 11 and to the extent you're going to ask him questions 11:38 12 extensively related to the study, maybe we could 11:38 13 look at the -- 11:38 14 MR. McCLAIN: We're going to do that. 11:38 15 But I'm only asking him now because I was asking him 11:38 16 about something else and he mentioned it. I don't 11:38 17 really want to discuss it. I want to discuss this 11:38 18 document, but he mentioned it so let's deal with it 11:38 19 right now and then we'll come back to the specifics 11:38 20 because we're going to look at it. That's one of 11:38 21 the documents I have. 11:38 22 Q. It's true, isn't it, they also found 11:38 23 obstructive effects in the employees? 11:38 24 A. There were obstructive effects that 11:38 25 were not work-related. 11:38 0082 1 T. Bates/McClain 2 Q. Okay. Let's -- 11:38 3 A. In the opinion of the doctor. 11:38 4 Q. In the opinion of your consultant? 11:38 5 A. Correct. 11:38 6 Q. All right. But your results were 11:38 7 never checked with NIOSH. Am I right? 11:38 8 A. That's correct. 11:38 9 Q. In other words, you could have 11:38 10 invited NIOSH to do the study who did the study on 11:38 11 the Jasper popcorn workers but you chose a different 11:39 12 private consultant to do your study. Am I right? 11:39 13 A. Yes. 11:39 14 Q. And you didn't ask OSHA to come in 11:39 15 and review the results of the study, did you? 11:39 16 A. The study was really -- 11:39 17 Q. Just stay with my question first and 11:39 18 then I'll let you say whatever you want. 11:39 19 A. Sure. 11:39 20 Q. You didn't ask OSHA to come in, did 11:39 21 you? 22 A. No. 11:39 23 Q. All right. You didn't ask Allan 11:39 24 Parmet who was the doctor that diagnosed the people 11:39 25 down at Jasper to come and review that data. Am I 11:39 0083 1 T. Bates/McClain 2 right? 11:39 3 A. No. 11:39 4 Q. Or James Lockey at the University of 11:39 5 Cincinnati who diagnosed a number of the people at 11:39 6 the Givaudan plant as having bronchiolitis 11:39 7 obliterans in the manufacture of flavorings was not 11:39 8 invited by IFF to come in and see whether or not the 11:39 9 results in your plant corresponded with the workers 11:39 10 at the Givaudan plant, was he? 11:39 11 MR. BRITTINGHAM: Object to the form. 11:39 12 MR. CALABRESE: Object to the form. 11:39 13 Q. Okay. Now go ahead and say whatever 11:39 14 you want. I'm a man of my word. Now go ahead and 11:39 15 explain however you'd like to. 11:40 16 A. The study, the respiratory evaluation 11:40 17 study that we performed was really prompted by the 11:40 18 NIOSH alert and also by the FEMA report. And we 11:40 19 wanted to, we had felt internally that we did not 11:40 20 have any respiratory problems associated with 11:40 21 working with diacetyl, the raw ingredient, and we 11:40 22 were looking for an outside party to evaluate our, 11:40 23 the medical health of the workers at three of our 11:40 24 facilities. 11:40 25 So we retained Dr. Luke, who 11:40 0084 1 T. Bates/McClain 2 performed the study, and his conclusion was that 11:40 3 there were no work-related incidents of respiratory 11:41 4 disease within our workforce. 11:41 5 Q. And, of course, you're aware that IFF 11:41 6 employed a doctor to come down and say all the 11:41 7 Jasper popcorn workers were not injured by their 11:41 8 workplace, too, don't you? 11:41 9 MR. BRITTINGHAM: Objection. Move to 11:41 10 strike. 11:41 11 A. I'm not aware of that. 11:41 12 Q. Well, anyway, let's get back to the 11:41 13 point I was on which is this document was supplied 11:41 14 by DSM and they informed you of -- you being IFF -- 11:41 15 that inhalation of diacetyl was harmful and that 11:41 16 there were possible risks of irreversible effects 11:41 17 through inhalation necrosis. Correct? 11:41 18 A. That's what it says, yes. 11:41 19 Q. And there's a date at the top that 11:41 20 says January 23rd 1900 but the first document is 11:41 21 2000 but internally there's a date of 10/4/01 within 11:42 22 this document so it's around this time period. Do 11:42 23 you see that? 24 MR. BRITTINGHAM: Object to the form. 11:42 25 A. The issue date? 11:42 0085 1 T. Bates/McClain 2 Q. Yes. 11:42 3 A. 10/4/01, yes. 11:42 4 Q. All right. In this time period 11:42 5 between 10-4-01 and 2004 did IFF ever inform people 11:42 6 that breathing butter flavors could have 11:42 7 irreversible effects? 11:42 8 A. Based on this particular MSDS? 11:42 9 Q. Period. 11:42 10 A. No. We informed them that the 11:42 11 material was a skin, eye, and lung irritant. 11:42 12 Q. After 2004 you did begin to inform 11:42 13 people that it would cause irreversible effects 11:42 14 including bronchiolitis obliterans. Isn't that 11:42 15 right? 11:42 16 MR. BRITTINGHAM: Objection. 11:42 17 Misstates the evidence. 11:42 18 A. Well, we had a lot more information 11:42 19 that was being submitted and published by NIOSH who 11:43 20 was doing a lot of research at the time and is 11:43 21 publishing information as well as our own industry 11:43 22 group, FEMA, had put in information. 11:43 23 Q. Maybe I'm just not asking the 11:43 24 questions very well. I think you answered a 11:43 25 question that was beyond the one I asked. 11:43 0086 1 T. Bates/McClain 2 I just asked in 2004 you began 11:43 3 informing people that breathing butter flavors could 11:43 4 cause irreversible lung injury including 11:43 5 bronchiolitis obliterans. That's true, isn't it? 11:43 6 A. That information appears on an MSDS, 11:43 7 yes. 8 Q. Now let's circle back. In the same 11:43 9 period that you received this information from DSM 11:43 10 about harmful possible risk of irreversible effects, 11:43 11 your own people were noting that within the material 11:44 12 safety data sheets of other suppliers that this 11:44 13 diacetyl material was potentially a very hazardous 11:44 14 substance. Isn't that right? 11:44 15 A. Let's see the documents you're 11:44 16 referring to. 11:44 17 Q. Do you remember the incident 11:44 18 regarding Gist-brocades that I talked to you about 11:44 19 in the deposition oh, six months ago? 11:44 20 A. In relation to what? 11:44 21 Q. In relation to the same data that was 11:44 22 contained within the BASF rat study, the inhalation 11:44 23 toxicity of that material. 11:44 24 A. And that's being contained in the 11:44 25 MSDS? 11:44 0087 1 T. Bates/McClain 2 Q. Yes. 11:44 3 A. Yes. 11:44 4 Q. And you receiving an inquiry 11:44 5 internally about that subject from your own 11:45 6 employees? 11:45 7 A. Yes. 11:45 8 Q. Let's look at what we'll call Bates 11:45 9 Exhibit 2. 11:45 10 (Exhibit Bates-2 marked for 11 identification.) 11:45 12 Q. Now, this is a correspondence to you 11:45 13 from Peter Lancaster on 10/19/2001. Isn't that 11:45 14 right? 15 A. Where are you referring to? 11:46 16 Q. Second page. 11:46 17 A. My second page? 11:46 18 Q. I don't know. I'm sorry. It's the 11:46 19 page that's designated as 67 at the bottom. 11:46 20 A. Yes. Let me look at what we have 11:46 21 here. 11:46 22 Q. Sure. 11:46 23 A. (Examining document.) 11:46 24 MR. BRITTINGHAM: Let me just note 11:46 25 for the record that Bates Exhibit 2 appears to be a 11:46 0088 1 T. Bates/McClain 2 group of documents, not all of them of which are 11:46 3 necessarily related to the other. 11:47 4 MR. McCLAIN: No. I'm not just 11:47 5 dealing with this email chain back and forth. 11:47 6 A. (Examining document.) 11:47 7 Q. Begin with -- or whenever you're 11:48 8 ready. 11:48 9 A. (Examining document.) 11:48 10 Q. Are you ready? 11:51 11 A. Yes. 11:51 12 Q. Confirm for me, would you, that 11:51 13 Mr. Peter Lancaster was inquiring to you about the 11:51 14 very same data that we looked at earlier that was 11:51 15 contained on the BASF material safety data sheet 11:51 16 that apparently also was contained on a material 11:52 17 safety data sheet from Gist-brocades. 11:52 18 MR. BRITTINGHAM: Object to the form 11:52 19 of the question. 20 Q. Or Gist-brocades. 11:52 21 A. It appears to be, yes. 11:52 22 Q. And what we mean by that is that this 11:52 23 inhalation LC50 rat 2.25 LC, less than LC50 and 11:52 24 greater than 5.2 milligrams is inquired about by 11:52 25 Mr. Carroll to you and his inquiry is, "It strikes 11:52 0089 1 T. Bates/McClain 2 me that the figures are very low which would 11:52 3 indicate a measurable degree of acute toxicity and 11:52 4 we should be taking measurable precautions against 11:52 5 exposure. Is that a reasonable conclusion?" Is 11:52 6 that correct? That's what he asks you? 11:52 7 A. Where are you reading that? 11:52 8 Q. That's on that 67 page. 11:52 9 A. (Examining document.) That's what he 11:53 10 says, yes. 11:53 11 Q. And he's asking should we be taking 11:53 12 measurable precautions against exposure and that 11:53 13 would include such things as self-contained 11:53 14 breathing apparatus. Am I right? Would that be a 11:53 15 measurable protective device for use around 11:53 16 diacetyl? 11:53 17 A. Self-contained breathing apparatus? 11:53 18 Q. Yes. 11:53 19 A. Typically that would not be worn to 11:53 20 be used around with diacetyl, self-contained 11:53 21 breathing apparatus. 11:53 22 Q. Well, the fact is that you were 11:53 23 warned to use that as early as 1991. Isn't that 11:53 24 right? 25 A. For? 11:53 0090 1 T. Bates/McClain 2 Q. Working around diacetyl. 11:53 3 A. Maybe you want to show me the 11:53 4 documentation. 11:54 5 Q. Look back at the last packet of 11:54 6 documents that we looked at, Bates Exhibit 1, the 11:54 7 one that's marked there. Look at page 775, the 11:54 8 material safety data sheet you received from Berje. 11:54 9 Berje is one of the suppliers that IFF has had 11:54 10 regarding diacetyl. Isn't that right? 11:54 11 A. Yes. 11:54 12 Q. And you see it's stamped "Received 11:54 13 February 27th, 1991" up at the top under Berje? 11:54 14 A. Yes. 11:54 15 Q. And you see respiratory protection, 11:54 16 use positive pressure self-contained breathing 11:54 17 apparatus, that's what you were warned about as 11:55 18 early as 1991? 11:55 19 A. But I think you'd have to take a look 11:55 20 at the entire MSDS as well as the MSDSs that we 11:55 21 receive from our other suppliers as well as how we 11:55 22 were working with the material within our plants. I 11:55 23 mean you just don't use an MSDS as an end-all-be-all 11:55 24 when you're making an assessment as far as what sort 11:55 25 of protective equipment you're going to be using 11:55 0091 1 T. Bates/McClain 2 within your workforce. 11:55 3 Q. Well, let's take it step by step. 11:55 4 You're told to use self-contained breathing 11:55 5 apparatus by Berje. You're told about the LC50 with 11:55 6 Gist-brocades. You're supplied the BASF information 11:55 7 when you merge with BBA. The DSM data tells you 11:55 8 that diacetyl will cause irreversible effects 11:55 9 through inhalation. None of these things were ever 11:56 10 conveyed to your customer. Isn't that right? 11:56 11 MR. BRITTINGHAM: Object to the form 11:56 12 of the question. Move to strike. 11:56 13 Q. Until after 2004. 11:56 14 A. The information that we receive from 11:56 15 our suppliers is taken and evaluated by people who 11:56 16 develop our MSDSs. It's also we look at what is 11:56 17 being recommended by our industry and trade 11:56 18 associations. We also look at what our work 11:56 19 experience has been. We're talking about pure 11:56 20 diacetyl as opposed to diacetyl in a product. 11:56 21 And this "use positive pressure 11:56 22 self-contained breathing apparatus," looking at the 11:56 23 MSDSs that you provided me here, I don't see other 11:56 24 suppliers recommending that. 11:57 25 From our own experience working with 11:57 0092 1 T. Bates/McClain 2 this material we did not feel that there was a need 11:57 3 to use self-contained breathing apparatus. 11:57 4 Q. So it was purposeful. In other 11:57 5 words, somebody made a conscious decision not to 11:57 6 pass this information around to customers. You made 11:57 7 some judgement that it wasn't necessary for your 11:57 8 customers. Is that what you're telling us, 11:57 9 Mr. Bates? 10 A. What I'm saying -- 11:57 11 MR. BRITTINGHAM: Objection. 11:57 12 A. -- is that when we're talking about 11:57 13 the raw material as opposed to talking about a 11:57 14 product that may contain 1 or 2 percent diacetyl in 11:57 15 that material, the precautions would be different. 11:57 16 Q. What about 13 percent diacetyl or 11:57 17 7 percent diacetyl? What tests did IFF or BBA ever 11:57 18 do to determine that the risks of use of butter 11:57 19 flavors were not as high as the use of diacetyl in 11:57 20 your own plants? Did they conduct any tests at all? 11:57 21 A. We didn't conduct any tests on the 11:57 22 product itself and certainly we had no reason to 11:58 23 suspect that there was an issue with these materials 11:58 24 because we were not experiencing any issues within 11:58 25 our own facilities. 11:58 0093 1 T. Bates/McClain 2 Q. But you were told about them by your 11:58 3 suppliers. 11:58 4 A. For the raw material. 11:58 5 Q. You were told about them, that these 11:58 6 could possibly be the results. Isn't that right? 11:58 7 MR. BRITTINGHAM: Object to the form. 11:58 8 A. When you're pointing -- with respect 11:58 9 to what are you referring to? 11:58 10 Q. Diacetyl. 11:58 11 A. But with respect to what part of 11:58 12 the -- 11:58 13 Q. That there could be irreversible 11:58 14 health effects and that you had to use positive 11:58 15 pressure breathing apparatuses when working around 11:58 16 these materials and that the material was toxic to 11:58 17 rats when you breathed it. All of those things were 11:58 18 information that IFF had in its possession. Isn't 11:58 19 that true? 20 A. They were pieces of information. But 11:58 21 as I explained to you earlier, we looked at all the 11:58 22 information that was being gathered at the time. 11:58 23 Q. And you also had the -- 11:59 24 MR. BRITTINGHAM: Can he finish the 11:59 25 answer? 11:59 0094 1 T. Bates/McClain 2 MR. McCLAIN: Sure. 11:59 3 Q. I didn't mean to cut you off. 11:59 4 A. You're looking at all the information 11:59 5 and also looking at our history with the material as 11:59 6 well as what was being given to us through our trade 11:59 7 association, through RIFM and FEMA. 11:59 8 Q. And you know that by 1996 FEMA knew 11:59 9 about bronchiolitis obliterans in the flavoring 11:59 10 industry from using flavors. Isn't that right? 11:59 11 MR. BRITTINGHAM: Objection. 11:59 12 Q. You know that. 11:59 13 A. I did not -- we didn't -- no one knew 11:59 14 it in the industry at that time. 11:59 15 Q. Well, that's not true. FEMA knew it 11:59 16 at least by 1996 and you know that also. 11:59 17 MR. BRITTINGHAM: Objection. Move to 11:59 18 strike. 11:59 19 (Indiscernible crosstalk.) 20 Q. You now know -- 21 (Discussion off the record.) 22 MR. McCLAIN: Okay. I'm sorry. Read 23 the question back and let him answer and I'll ease 24 off for a minute. 25 (Question read.) 12:00 0095 1 T. Bates/McClain 2 Q. Let's clarify. You now know that 12:00 3 FEMA knew it at least by 1996. Isn't that correct? 12:00 4 A. We now know it, yes. 12:00 5 Q. Now, let's come back to square one. 12:00 6 You were provided guidance from OSHA that your 12:00 7 mixtures must contain the hazard rating of its most 12:00 8 hazardous ingredient. Am I right? 12:00 9 MR. BRITTINGHAM: Objection. 12:00 10 A. The guidance of OSHA on mixtures is 12:00 11 that you provide the hazard information of the 12:00 12 ingredients greater than 1 percent of the formula. 12:00 13 Q. And the most hazardous ingredient is 12:00 14 what defines the characteristics of the mixture 12:00 15 unless you have tested it specifically and found 12:00 16 some different result. Am I correct? 12:00 17 A. Correct. 12:00 18 MR. BRITTINGHAM: Objection. 12:00 19 Q. And so a butter flavor containing 12:00 20 diacetyl should contain the information about that 12:00 21 ingredient. Am I right? 12:00 22 A. Yes. 12:01 23 MR. McCLAIN: Would this be a good 12:01 24 time for our lunch? 12:01 25 MR. BRITTINGHAM: Sure. 12:01 0096 1 T. Bates/McClain 2 THE VIDEOGRAPHER: Going off the 12:01 3 record. The time is 12:01 p.m. This is the end of 12:01 4 tape 3. 12:01 5 (Luncheon recess taken from 12:01 p.m. 12:01 6 to 12:54 p.m.) 7 A F T E R N O O N S E S S I O N 8 THE VIDEOGRAPHER: We are back on the 12:38 9 record. The time is 12:54 p.m. This is the 12:54 10 beginning of tape 4 12:54 11 Q. Mr. Bates, you have seen the MSDS 12:54 12 sheets that accompanied your butter flavors, that is 12:55 13 IFF's butter flavors, BBA's butter flavors 12:55 14 beforehand. In all instances those rated to the 12:55 15 public the hazard as a 1 or slight. Isn't that true 12:55 16 to your recollection? 12:55 17 A. To my recollection I can't say if 12:55 18 they were all 1s. There could have been a couple 2s 12:55 19 there, too. I'm not sure. 12:55 20 Q. To refresh your recollection let me 12:55 21 show you what we'll mark as Bates-3. 12:55 22 (Exhibit Bates-3 marked for 23 identification.) 12:56 24 MR. BRITTINGHAM: Do you have another 12:56 25 copy? 12:56 0097 1 T. Bates/McClain 2 MR. McCLAIN: Yes, I sure do. 12:56 3 A. Certainly it depends on the time 12:56 4 frame we're talking about too. 12:56 5 Q. Okay. Well, if you can find a butter 12:56 6 flavor that was manufactured by IFF or BBA that was 12:56 7 ever rated above 1 -- I'll represent to you I 12:56 8 haven't seen it. If you have seen one, I would like 12:56 9 to see it. Here is one that I do have in my 12:56 10 possession right now, which is the IFF butter flavor 12:56 11 that went to ConAgra where you can see on the last 12:56 12 page the rating is "slight." The last page. 12:56 13 MR. BRITTINGHAM: 5402? 12:56 14 MR. McCLAIN: That's right. That's 12:56 15 the page number. 12:56 16 A. (Examining document.) 12:57 17 Q. Am I right about that? It's rated 1 12:57 18 or slight hazard as of 2004? 12:57 19 A. (Examining document.) 12:57 20 Q. That information would be derived 12:57 21 from the last page. 12:57 22 A. Right. But I'm looking at the first 12:57 23 page as far as the composition information on 12:57 24 ingredients. 12:57 25 Q. Hold on. Let's just take it step by 12:57 0098 1 T. Bates/McClain 2 step. Look at the health rating on the back. For 12:57 3 health it's rated 1, isn't it? 12:57 4 A. Yes, it is. 12:57 5 Q. Okay. Now go ahead and look at 12:57 6 whatever you'd like and I'll let you tell me 12:57 7 anything else you want, but I'm just trying to keep 12:58 8 us focused on the questions. 12:58 9 A. (Examining document.) Okay. This 12:58 10 MSDS was created on August 25th, 2002. 12:58 11 Q. And at that point in time you were 12:59 12 still calling it a slight hazard. Right? True? 12:59 13 A. For this formulation, yes. 12:59 14 MR. McCLAIN: Do you have the 85032, 12:59 15 Scott, the material safety data sheet for the Jasper 12:59 16 butter flavors? 12:59 17 Q. Just so you don't have any doubt 12:59 18 about the issue, here is 85032, the most dangerous 12:59 19 butter flavor ever known to man. 12:59 20 MR. BRITTINGHAM: Objection. Move to 12:59 21 strike. Same objections that I made earlier with 12:59 22 respect to the relevance of this flavor. It was 12:59 23 never used at or sold to the Marion, Ohio plant. 13:00 24 Q. Do you see the health hazard rating 13:00 25 for that butter flavor? 13:00 0099 1 T. Bates/McClain 2 A. Yes. 13:00 3 Q. It's a 1, isn't it? 13:00 4 A. Yes. 13:00 5 Q. If you've ever seen a 2, I haven't 13:00 6 seen one. So I'm just trying to refresh your 13:00 7 recollection. You've been never seen a 2 either, 13:00 8 have you? 13:00 9 A. This MSDS was created in April 1993. 13:00 10 Right? 13:00 11 Q. Right. And it's dated 8/27/97. 13:00 12 That's when this one went out. Right? 13:00 13 A. Yes. 13:01 ... 0100 ... 0101 ... 0102 ... 0103 ... 0104 ... 25 Q. Who is Christopher Lavalee? 13:09 0105 1 T. Bates/McClain 2 A. Lavalee? 13:10 3 Q. Lavalee? Is that how you say his 13:10 4 name? 13:10 5 A. Mr. Lavalee works in our R&D 13:10 6 facility. He's a chemist, I believe. 13:10 ... 0106 ... 20 Q. Turning to the issue of 13:14 21 determinations of the toxicity of diacetyl, there 13:14 22 was a risk assessment done by a company called 13:15 23 Quest, wasn't there? 13:15 24 A. I'll have to look at the document 13:15 25 you're referring to. 13:15 0107 1 T. Bates/McClain 2 Q. Okay. 13:15 3 MR. McCLAIN: Let's mark this as 13:15 4 Bates-6. 13:15 5 (Exhibit Bates-6 marked for 6 identification.) 13:16 7 A. (Examining document.) Is there a 13:16 8 reason why these areas are blank? 13:16 9 Q. That's the way it was produced to us. 13:16 10 I don't know why. If you can get them unblanked, 13:16 11 I'd appreciate it. I have no idea why it was 13:16 12 blocked out. 13:16 13 A. (Examining document.) 13:18 14 Q. You see this came from your records 13:21 15 and files? 13:21 16 A. Yes. 13:21 17 Q. Do you see over here where it says, 13:21 18 "Draft statement, confidential, not for press 13:21 19 release, preliminary risk assessment of diacetyl 13:21 20 (2,3-butanedione) used in flavorings" at the top? 13:21 21 Do you see that? 13:21 22 A. Yes. 13:21 23 Q. It says, "In pursuance of a request 13:21 24 of Quest International, Naarden, the Netherlands a 13:21 25 preliminary risk assessment was conducted concerning 13:21 0108 1 T. Bates/McClain 2 the inhalation of diacetyl (2,3-butanedione) used in 13:21 3 flavorings for the food industry." 13:21 4 Dropping down, Conclusions: "On the 13:21 5 basis of the preliminary risk assessment conducted, 13:21 6 the following can be concluded: Diacetyl 13:21 7 (2,3-butanedione) is a highly reactive, 13:21 8 predominantly locally acting, compound as evidenced 13:21 9 by the nasal and pulmonary changes upon inhalation 13:22 10 exposure and the stomach lesions following 13:22 11 administration by gavage." Do you see that? 13:22 12 A. Yes, I do. 13:22 13 Q. Now, it's always been known that 13:22 14 diacetyl is highly reactive. Am I right? 13:22 15 MR. BRITTINGHAM: Object to the form 13:22 16 of the question. 13:22 17 Q. That's been known to a chemist like 13:22 18 for al time? 13:22 19 A. It's a volatile material, yes. 13:22 20 Q. Predominately locally acting. That's 13:22 21 what you were telling me about it being an irritant. 13:22 22 Right? 13:22 23 A. It's an irritating material, right. 13:22 24 Q. Compound as evidenced by the nasal 13:22 25 and pulmonary changes upon inhalation exposure and 13:22 0109 1 T. Bates/McClain 2 you brought the BASF study. That at least was known 13:22 3 within the BASF study by '93. Am I right? 13:22 4 A. I'm just going back up here to the 13:22 5 paragraph just above the conclusions. "On behalf of 13:22 6 the assessment, a quick scan of both literature 13:22 7 databases" -- 13:23 8 MR. BRITTINGHAM: Mr. Bates, you'll 13:23 9 have to keep your voice up. 13:23 10 A. "On behalf of the assessment a quick 13:23 11 scan of both literature databases and relevant 13:23 12 websites on the toxicological properties and 13:23 13 relevant exposures was conducted. Moreover, 13:23 14 exposure estimations were developed using the 13:23 15 so-called EASE model. The EASE model is the 13:23 16 preferred model for new and existing substances in 13:23 17 Europe when there is a lack of proper measured 13:23 18 data." 13:23 19 Q. Okay. Well, come back to my 13:23 20 question. 13:23 21 A. So this was a review of the 13:23 22 literature. 13:23 23 Q. Right. Come back to my question. 13:23 24 A. Okay. 13:23 25 Q. It was known at least by the time of 13:23 0110 1 T. Bates/McClain 2 the BASF rat study that nasal and pulmonary changes 13:23 3 occurred upon inhalation exposure. True? 13:23 4 MR. BRITTINGHAM: Object to the form 13:23 5 of the question in that known by who? 13:23 6 Q. Known or knowable. 1993 is when that 13:23 7 experiment was done. Right? 13:23 8 A. It was done in '93 but I don't 13:23 9 believe the industry knew about it until 2001. 13:24 10 Q. Well, you knew about it in 1998. 13:24 11 We've already seen that. 13:24 12 MR. BRITTINGHAM: Objection. 13:24 13 Q. You received the BASF rat study data 13:24 14 on their material safety data sheet. True? 13:24 15 MR. BRITTINGHAM: Objection. 13:24 16 A. We received the results of an LC50 13:24 17 study on the MSDS. 13:24 18 Q. Enough so that when you received it 13:24 19 again on the Gist-brocades, one of your own people 13:24 20 was concerned about it. Right? 13:24 21 MR. BRITTINGHAM: Object to the form. 13:24 22 A. They were looking at that from the 13:24 23 standpoint that it was an inhalation study that was 13:24 24 done where the expectation was that you were going 13:24 25 to kill 50 percent of the rats at a certain host 13:24 0111 1 T. Bates/McClain 2 level. 13:24 3 Q. But he was concerned about it, wasn't 13:24 4 he? 5 A. He voiced a concern, yes. 13:24 6 Q. Yes, he was. 13:24 7 A. And that concern was communicated to 13:24 8 our toxicologist who responded to him. 13:24 9 Q. Yes. And that information was at 13:24 10 least available by 1998 -- we're clear about that -- 13:24 11 and maybe back as early as 1994. 13:25 12 MR. BRITTINGHAM: Object to the form 13:25 13 of the question. 13:25 14 Q. Right? 13:25 15 A. I'm not aware of that. 13:25 16 Q. That's the date on that MSDS. Right? 13:25 17 The date that we see the fax was '98 but it was 13:25 18 created in '94? 13:25 19 A. Are you saying I was aware of it? 13:25 20 Q. No. I'm just saying the company. 13:25 21 You're not here to say what Tom Bates was aware of. 22 You're here as the company representative. I know 13:25 23 that. 13:25 24 A. As far as IFF is concerned, IFF never 13:25 25 purchased diacetyl from BASF so they didn't have 13:25 0112 1 T. Bates/McClain 2 that material safety data sheet in 1994. 13:25 3 Q. Mr. Bates, BBA and IFF are now one 13:25 4 company. Right? 13:25 5 A. As of -- 13:25 6 MR. BRITTINGHAM: Objection. 13:25 7 Q. -- 2000. 13:25 8 A. 2000. 13:25 9 Q. All right. At least by 2000 you were 13:25 10 in control of all the information that BBA had. 13:25 11 Right? 12 MR. BRITTINGHAM: Objection. 13:25 13 A. We would have seen certain 13:25 14 information, yes. 13:25 15 Q. And it's clear from the records that 13:25 16 we've looked at that by 1998 at the very latest BBA 13:25 17 was in possession of the data from the BASF rat 13:26 18 study. True? 13:26 19 MR. BRITTINGHAM: Objection. 13:26 20 A. They had a material safety data 13:26 21 sheet, yes. 13:26 22 Q. That contained that information. 13:26 23 True? 13:26 24 A. The results of the rat study, yes. 13:26 25 Q. And that material safety data sheet 13:26 0113 1 T. Bates/McClain 2 was produced by BASF in 1994. We know that -- 13:26 3 MR. BRITTINGHAM: Objection. 13:26 4 Q. -- from the date created. Right? 13:26 5 A. Yes. 13:26 6 Q. And all I'm asking is is that the 13:26 7 information was out there from at least 1994. I'm 13:26 8 not asking who knew what when. I'm just saying that 13:26 9 it was available. 13:26 10 A. It wasn't a published study. When 13:26 11 you say it was out there, out there to who? 13:26 12 Q. To any purchasers of BASF material or 13:26 13 people that had the BASF material safety data sheet 13:26 14 within their files. 13:26 15 A. As of 1994? 13:26 16 Q. Right. 13:26 17 A. Neither IFF nor BBA purchased 13:26 18 diacetyl from BASF. 13:26 19 Q. Yes. But they had the sheet. 13:26 20 A. In 1998. 13:27 21 Q. Well, we're not sure when but at 13:27 22 least by '98. At least by '98? 13:27 23 A. BBA did, yes. 13:27 24 Q. Yes. Do you know when Keith Campbell 13:27 25 who's going to trial here in two weeks went to work 13:27 0114 1 T. Bates/McClain 2 at ConAgra? 13:27 3 A. No, I don't. 13:27 4 Q. 2000. 2000. All right. Let's go 13:27 5 back to this. "Conclusions: Peak exposure resulted 13:27 6 in necrosis more distal into the respiratory tract 13:27 7 than exposure to constant concentrations." Do you 13:27 8 see that conclusion? It's number 2 at the bottom. 13:27 9 A. Page 2. 13:27 10 Q. 2. 13:27 11 A. Where? 13:27 12 MR. BRITTINGHAM: The third page in. 13:27 13 Q. Draft statement at the top, 1 of 10? 13:27 14 MR. BRITTINGHAM: The third page of 13:27 15 the whole group. 13:27 16 Q. It's the draft statement. "Peak 13:27 17 exposure resulted in necrosis more distal into the 13:28 18 respiratory tract than exposure to a constant 13:28 19 concentration." Do you see that? 13:28 20 A. I'm missing it here. Point it out to 13:28 21 me. 13:28 22 Q. Under 2, bottom of the -- 13:28 23 A. Okay. 13:28 24 Q. Did I read that correctly? "Peak 13:28 25 exposure resulted in necrosis more distal into 13:28 0115 1 T. Bates/McClain 2 the" -- 13:28 3 A. "It was, however, shown in the 13:28 4 concerned study that peak exposure resulted in 13:28 5 necrosis more distal into the respiratory tract than 13:28 6 the exposure to a constant concentration," yes, 13:28 7 that's correct. 13:28 8 Q. And then 3, "If necrosis is the 13:28 9 result of the accumulation of water soluble vapors 13:28 10 in the mucous layer, the mouth breathing worker 13:28 11 would be expected to be at a greater risk of 13:28 12 pulmonary airway damage than an obligatory nose 13:28 13 breather like the rat at similar concentrations." 13:28 14 Did you see that? 13:28 15 A. Yes. 13:28 16 Q. Looking at page 2, this is number 13:28 17 6, "Based on model results and literature data, the 13:29 18 following can be stated: Exposure levels to 13:29 19 diacetyl are expected to be highest during the task 13:29 20 of mixing flavor in a mixing tank." Do you know 13:29 21 that Keith Campbell was a mixer? 13:29 22 A. No, I did not. 13:29 23 Q. "Exposure levels are higher if the 13:29 24 temperature of the mixture is higher and if 13:29 25 percentage of diacetyl in the flavoring is higher." 13:29 0116 1 T. Bates/McClain 2 Do you see that? 3 A. Yes, I do. 13:29 4 Q. And of course we've seen data where 13:29 5 in your own plant you kept the levels below 83. Am 13:29 6 I right? 13:29 7 MR. BRITTINGHAM: Object to the form 13:29 8 of the question. 13:29 9 A. For quality control purposes, yes. 13:29 10 Q. And it's true, isn't it, that your 13:29 11 diacetyl mixture, your butter flavor mixture 13:29 12 contained more diacetyl than anyone else's. 13:29 13 A. I'm not aware of that. 13:30 14 Q. Page 3, let's look over at that. 13:30 15 "As long as data are not available to establish an 13:30 16 NOAEL" -- what does that stand for? 13:30 17 A. I don't know. 13:30 18 Q. No effect? 13:30 19 A. I'm not sure what that means. I 13:30 20 don't know that designation. 13:30 21 Q. "Or a safe exposure limit" -- 13:30 22 A. Okay. 13:30 23 Q. -- "exposure to (high) concentrations 13:30 24 of 2,3-butanedione should be prevented preferably by 13:30 25 technical means or if this is not possible, by 13:30 0117 1 T. Bates/McClain 2 wearing adequate personal protection specifically at 13:30 3 tasks close to for example, mixers." 13:30 4 Do you agree with that from an 13:30 5 industrial hygiene standpoint based on the 13:30 6 information that you have today? 13:30 7 A. Preferred by technical means, if that 13:31 8 technical means means by engineering controls, I 13:31 9 would say yes. 10 Q. Now, even after that information was 13:31 11 in the possession of IFF, that is, the Quest 13:31 12 information that we just looked at, IFF did not 13:31 13 convey that information to the general public, did 13:31 14 it? 15 MR. BRITTINGHAM: Object to the form. 13:31 16 Q. Let's look at Exhibit 7. 13:31 17 (Exhibit Bates-7 marked for 13:32 18 identification.) 19 Q. By 2000 you had issued a new label. 13:32 20 Am I right? 21 A. New label for the container, yes. 13:32 22 Q. And the question was asked are the 13:32 23 changes -- the title of this document December 5th 13:32 24 of 2005, "IFF implementation of FEMA Labeling 13:32 25 Recommendations Q&A." Do you see that? 13:32 0118 1 T. Bates/McClain 2 A. Yes. 13:32 3 Q. This was provided to IFF employees so 13:32 4 that they could answer questions that arose from 13:32 5 labeling the product. Am I right? 13:32 6 A. Yes. 13:32 7 Q. Why is IFF implementing this new 13:32 8 labeling? You said, "IFF is committed to the health 13:32 9 and safety of our employees or customers and 13:32 10 consumers implementing the FEMA-recommended labeling 13:33 11 will further enhance our existing communications to 13:33 12 our customers about the safe use of our products." 13:33 13 Do you see that? 14 A. Yes. 13:33 15 Q. And then, "Are the changes the result 13:33 16 of a safety issue?" And the answer is no. Right? 13:33 17 A. That's what it says, yes. 13:33 18 Q. And that was just an absolute 13:33 19 falsehood? 13:33 20 MR. BRITTINGHAM: Object. Move to 13:33 21 strike. And under the rule of completeness would 13:33 22 you read the sentence that follows, the two 13:33 23 sentences that follow? 13:33 24 MR. McCLAIN: Yes. 25 Q. "All IFF products are safe when 13:33 0119 1 T. Bates/McClain 2 properly used in the workplace and according to the 13:33 3 instructions provided in the accompanying material 13:33 4 safety data sheets. The changes to the product 13:33 5 container shipping label and accompanying MSDSs are 13:33 6 to further enhance our existing communications to 13:33 7 our customers." That was just an absolute 13:33 8 falsehood. 13:33 9 MR. BRITTINGHAM: Objection. Move to 13:33 10 strike. 13:33 11 A. I don't believe so. 13:33 12 Q. Previously the MSDS sheet that you 13:33 13 sent out said that respiratory protection wasn't 13:34 14 needed. It said that there was no known health 13:34 15 hazards related to the butter flavor that you were 13:34 16 selling and instead the new material safety data 13:34 17 sheet that you were sending out said that 13:34 18 respiratory protection was required at all times and 13:34 19 that this stuff could cause bronchiolitis 13:34 20 obliterans. 21 So it wasn't to enhance anything. It 13:34 22 was because you were recognizing after 2005 that in 13:34 23 fact your butter flavor had caused severe lung 13:34 24 injury to the Jasper popcorn workers. Isn't that 13:34 25 true? 0120 1 T. Bates/McClain 2 MR. BRITTINGHAM: Objection. Move to 13:34 3 strike. 13:34 4 A. I don't think that's correct. I 13:34 5 think what it is was we had been presented some new 13:34 6 information through the NIOSH alert in 2004 and also 13:34 7 from FEMA, from their report, and we were 13:34 8 implementing those recommendations. 13:34 9 Q. You had been sued over thirty times 13:34 10 in Jasper. Right? 13:34 11 MR. BRITTINGHAM: Objection. Move to 13:34 12 strike. 13:35 13 A. There were lawsuits involved. 13:35 14 Q. By this time you had already lost 13:35 15 four of them? 13:35 16 MR. BRITTINGHAM: Same objection. 13:35 17 Move to strike. 13:35 18 Q. FEMA wasn't telling you anything new. 13:35 19 I was telling you the new stuff. 13:35 20 MR. BRITTINGHAM: Move to strike. 13:35 21 Q. The fact is, Mr. Bates, by this time 13:35 22 you had already had the New England Journal of 13:35 23 Medicine article, isn't that true, in your 13:35 24 possession since 2002? 13:35 25 A. Yes. 13:35 0121 1 T. Bates/McClain 2 Q. You had been to workshops with NIOSH. 13:35 3 Right? 4 A. People in our organization had been, 13:35 5 yes. 6 Q. I mean FEMA didn't need to tell you 13:35 7 anything. You were the experts. 13:35 8 MR. BRITTINGHAM: Objection. Move to 13:35 9 strike. 13:35 10 A. But from the NIOSH information that 13:35 11 had been published and also from the NIOSH studies 13:35 12 that had been conducted after the NIOSH interim 13:35 13 report came out, it was clear that there was some 13:35 14 additional studies that were going to be performed 13:36 15 by NIOSH and that information, we were depending 13:36 16 upon NIOSH to supply us with that information based 13:36 17 on -- 13:36 18 Q. I didn't mean to interrupt. Go 13:36 19 ahead. 20 A. Based on the additional studies that 13:36 21 they were performing. 13:36 22 Q. But tell me what new information you 13:36 23 got from the additional studies. What were the 13:36 24 additional studies first of all and then what 13:36 25 information that you got after the original New 13:36 0122 1 T. Bates/McClain 2 England Journal of Medicine article convinced you to 13:36 3 put the new label on? 13:36 4 A. NIOSH came out with their alert in I 13:36 5 believe was December of 2003 that provided not just 13:36 6 IFF but the entire industry some additional 13:36 7 information with respect to studies that they had 13:36 8 been performing. 13:36 9 Q. The NIOSH alert didn't say anything 13:36 10 about new studies. It summarized the data that was 13:36 11 in the New England Journal of Medicine article. 13:36 12 A. It summarized the -- 13 MR. BRITTINGHAM: Objection. Move to 13:36 14 strike. 13:36 15 Q. But you already had the -- 13:36 16 THE COURT REPORTER: I didn't hear 17 the answer. 18 MR. BRITTINGHAM: There wasn't a 19 question. 20 THE COURT REPORTER: He said 21 something. I didn't get it. 22 Q. You already had the information from 13:36 23 the New England Journal of Medicine in 2002. Right? 13:37 24 A. In 2002, yes. 13:37 25 Q. And your people had already analyzed 13:37 0123 1 T. Bates/McClain 2 it? 13:37 3 A. The 2002 NIOSH report said that there 13:37 4 was going to be additional work to be done. It was 13:37 5 not conclusive. 13:37 6 Q. Is it the position of IFF that until 13:37 7 something has been proven that you will not warn 13:37 8 about the potential dangers? Is that your position? 13:37 9 A. I think the position of IFF is that 13:37 10 we take all the information and we evaluate it 13:37 11 internally. 13:37 12 Q. Mr. Bates, putting a warning on a 13:37 13 product is so simple that a prudent manufacturer 13:38 14 warns about potential dangers, not just those that 13:38 15 have been proven, doesn't it? 13:38 16 MR. BRITTINGHAM: Objection. 13:38 17 A. Based on the information that we had 13:38 18 available and the information that was reviewed 13:38 19 internally, decisions were made to improve our 13:38 20 labeling after the NIOSH alert came out and after 13:38 21 the FEMA report came out. 13:38 22 Q. Yeah. But what I'm saying is that in 13:38 23 2002, you have all of the same information in your 13:38 24 possession. You just weren't convinced that it was 13:38 25 correct. Am I right? 13:38 0124 1 T. Bates/McClain 2 A. Even in the reports that came out in 13:38 3 2002 it indicated that more study had to be done. 13:38 4 There were inconclusive results. 13:38 5 Q. So you just decided to chance it? 13:38 6 MR. BRITTINGHAM: Objection. Move to 13:38 7 strike. 13:38 8 A. I think we were waiting for NIOSH to 13:38 9 come out with more conclusive results. 13:38 10 Q. What possible reason would there be 13:38 11 to wait to warn people? I mean what possible reason 13:39 12 could you have not to warn people about a potential 13:39 13 risk at the first indication that you had that a 13:39 14 potential deadly disease was being caused by your 13:39 15 product? 13:39 16 MR. BRITTINGHAM: Object to the form. 13:39 17 A. The studies that you're referring to 13:39 18 were animal studies. They were not conclusive with 13:39 19 respect to the final, with their findings. NIOSH 13:39 20 was taking the lead as far as investigating and 13:39 21 determining the validity of the studies. We waited, 13:39 22 we were waiting for NIOSH to come out with their 13:39 23 final report. 13:39 24 Q. Animal studies, animal studies, in 13:39 25 2002 the New England Journal of Medicine reported on 13:39 0125 1 T. Bates/McClain 2 illness among people, people, people exposed to your 13:40 3 product. Isn't that true? 13:40 4 MR. BRITTINGHAM: Objection. Move to 13:40 5 strike. 13:40 6 A. They reported on, again, going back 13:40 7 to the New England Journal of Medicine -- 13:40 8 Q. What -- 13:40 9 MR. BRITTINGHAM: Let him finish his 13:40 10 answer. 13:40 11 A. Going back to the New England Journal 13:40 12 of Medicine study regarding the Jasper plant, it was 13:40 13 IFF's experience with their own workers that we had 13:40 14 no respiratory disease or no respiratory illness 13:40 15 related to workers using pure diacetyl for over 13:40 16 thirty years in our manufacturing plants with 13:40 17 respect to butter flavors or butter. 13:40 18 Q. So you just didn't believe it. Is 13:40 19 that what you're telling us? 13:40 20 A. It was not conclusive. 13:40 21 Q. I'm not asking you about conclusive. 13:40 22 You said it was only animal experiments and that's 13:40 23 just not true. They analyzed people who were 13:41 24 exposed to your butter flavor and concluded that 13:41 25 they had bronchiolitis obliterans from exposure to 13:41 0126 1 T. Bates/McClain 2 your products. They used animal studies to confirm 13:41 3 the results they saw in people. Isn't that true? 13:41 4 MR. BRITTINGHAM: Objection. Move to 13:41 5 strike. 13:41 6 A. And again I don't believe the New 13:41 7 England Journal of Medicine study was conclusive. 13:41 8 They said they needed to do additional work. 13:41 9 MR. McCLAIN: Can I hear his answer 13:41 10 back again? 13:41 11 (Answer read.) 13:41 12 Q. That really doesn't answer the 13:42 13 question. Here is the question. I guess it is true 13:42 14 that you didn't feel there was any need to warn 13:42 15 until someone could prove that the New England 13:42 16 Journal of Medicine article was conclusive in your 13:42 17 mind. Am I right? 13:42 18 MR. BRITTINGHAM: Object to the form. 13:42 19 A. We were waiting for NIOSH to come out 13:42 20 with their final report with respect to what the 13:42 21 industry should be doing with respect to these 13:42 22 materials, yes. 13:42 23 MR. McCLAIN: Would you read back my 13:42 24 question and see if the witness can answer my 13:42 25 question. 13:43 0127 1 T. Bates/McClain 2 (Question read.) 13:43 3 MR. BRITTINGHAM: He's answered the 13:44 4 question. 13:44 5 MR. McCLAIN: No. I didn't think 13:44 6 that I had an answer. 13:44 7 Q. You did not change your warning, did 13:44 8 you, after you received the New England Journal of 13:44 9 Medicine article? 13:44 10 A. We were warning on the MSDS. 13:44 11 Q. Warning by telling people that there 13:44 12 was no known health hazard? 13:44 13 A. No. 13:44 14 MR. BRITTINGHAM: Objection. 13:44 15 Misstates the evidence. 13:44 16 A. The MSDS reflected that there were 13:44 17 severe -- I'm just trying to think of the 13:44 18 language -- that diacetyl was a -- 13:44 19 Q. Irritant? 13:44 20 A. -- irritant. 13:44 21 Q. There were no known health hazards. 13:44 22 Respiratory protection was not normally needed. 13:44 23 That's what you said about that material. 13:44 24 MR. BRITTINGHAM: Objection. Move to 13:44 25 strike. 13:44 0128 1 T. Bates/McClain 2 Q. True? 13:44 3 A. Prior to the NIOSH report coming out. 13:44 4 Q. The NIOSH report or the NIOSH alert? 13:44 5 A. The NIOSH alert coming out, yes. 13:44 6 Q. Okay. The NIOSH report was out and 13:44 7 you still were telling people there are no known 13:45 8 health hazards? 13:45 9 MR. BRITTINGHAM: Objection. 13:45 10 A. Because the interim report was not 13:45 11 conclusive. 13:45 12 Q. So even after the New England Journal 13:45 13 of Medicine article appeared, you were still telling 13:45 14 people there were no known health hazards. True? 13:45 15 A. Because that article -- 16 MR. BRITTINGHAM: Objection. 13:45 17 Q. First answer my question yes or no 13:45 18 and then I'll let you explain. That's true, isn't 13:45 19 it? 20 A. We were warning people. 13:45 21 Q. That's not what I said. It's true, 13:45 22 isn't it, that the warning that you're referring to 13:45 23 was the MSDS which told people that it was merely an 13:45 24 irritant, that you didn't need respiratory 13:45 25 protection ordinarily when working with it, and that 13:45 0129 1 T. Bates/McClain 2 there were no none health hazards associated with 13:45 3 it? 13:45 4 MR. BRITTINGHAM: Objection. 13:45 5 Q. All of my statements are true, aren't 13:45 6 they? 7 MR. BRITTINGHAM: Objection. 13:45 8 Misstates the evidence. Move to strike. 13:45 9 A. When you say no known health hazards, 13:45 10 when you're talking about irritants, that's a health 13:45 11 hazard. 13:45 12 Q. Okay. Let's look at the document and 13:45 13 we'll go through it step by step within the MSDS 13:45 14 that was supplied for 85032, the product at the 13:45 15 Jasper popcorn plant, which is in your exhibits -- 13:46 16 MR. BRITTINGHAM: I'll just reiterate 13:46 17 my prior objection about this line of questioning as 13:46 18 it relates to the MSDS and the product sold and used 13:46 19 at the Jasper plant which was never sold to or used 13:46 20 at the plant in Marion, Ohio. 13:46 21 Q. Look with me at the document. It has 13:46 22 a health rating of 1 or slight. Correct? 13:46 23 A. Yes. 13:46 24 Q. Under respiratory protection it says 13:46 25 not normally required. Right? 13:46 0130 1 T. Bates/McClain 2 A. "When the vapor concentration is high 13:46 3 due to heat, use a NIOSH-approved organic vapor 13:46 4 respirator." 13:46 5 Q. Okay. And what is the high 13:46 6 concentration? 13:46 7 A. "If in your evaluation you see vapors 13:46 8 or you believe vapors are being generated, the 13:46 9 recommendation is to use a NIOSH-approved organic 13:47 10 vapor respirator." 13:47 11 Q. What's high? 13:47 12 A. High is a determination, an 13:47 13 assessment, that someone taking this material safety 13:47 14 data sheet, looking at how the product is being used 13:47 15 and manufactured, looking at what engineering 13:47 16 controls are being used, what work practices are 13:47 17 being used, and determining whether or not there's 13:47 18 any vapors that might be exposing workers. 13:47 19 Q. You already told us that if you don't 13:47 20 know what you're measuring, you don't know what high 13:47 21 is. In order to make an assessment, you need to 13:47 22 know what's in the material. How would you even 13:47 23 know what to measure according to your material 13:47 24 safety data sheet? 13:47 25 MR. BRITTINGHAM: Objection. 13:47 0131 1 T. Bates/McClain 2 A. I don't think I said if you don't 13:47 3 know what -- repeat that last sentence because I 13:47 4 don't believe I said that. 13:47 5 Q. Step back for a minute. What would 13:47 6 you be measuring? What would you tell a lab to look 13:47 7 at? Butter flavor vapors? 13:47 8 A. You would be looking to see whether 13:47 9 or not, if there was any vapors in the air, yes. 13:47 10 Q. So if you didn't see any vapors in 13:48 11 the air, you wouldn't know to wear a respirator? 13:48 12 A. Not normally required. 13:48 13 Q. So if you didn't see any vapors in 13:48 14 the air, you were told not to wear a respirator. 13:48 15 Right? 16 MR. BRITTINGHAM: Objection. 13:48 17 A. You take the document, you assess 13:48 18 what's going on in the workplace. 13:48 19 Q. It also told you no known health 13:48 20 hazards. True? 13:48 21 A. This is a statement that carried 13:48 22 over. As you can see, this is a statement from Bush 13:48 23 Boake Allen. 13:48 24 Q. Yes. It says no known health 13:48 25 hazards? 13:48 0132 1 T. Bates/McClain 2 A. That was a statement, my 13:48 3 understanding, the way their data sheets were 13:48 4 generated that even if it had water in it, that 13:48 5 information, no known health hazard would be carried 13:48 6 over. 13:48 7 Q. And this is on IFF letterhead? 13:48 8 MR. BRITTINGHAM: Just a minute. I 13:49 9 don't think he was finished answering the question. 13:49 10 MR. McCLAIN: I don't think he was 13:49 11 answering it. 13:49 12 Q. But go ahead if you weren't done. 13:49 13 A. Okay. So this information that's in 13:49 14 section 7 here is being carried over by Bush Boake 13:49 15 Allen. 13:49 16 Q. Whatever. It says IFF at the top, 13:49 17 doesn't it? 18 A. It does say IFF. 13:49 19 Q. It's your statement. It's not Bush 13:49 20 Boake Allen's statement. 13:49 21 A. Well, it's IFF, but it's coming out 13:49 22 of the Chicago plant. 13:49 23 Q. Which was IFF's plant? 13:49 24 A. At the time this was generated, 1997, 13:49 25 so it was not an IFF plant at the time. 13:49 0133 1 T. Bates/McClain 2 Q. So why is it on IFF letterhead? 13:49 3 A. I can't explain it. There was a time 13:49 4 period, it could be that during that transition 13:49 5 period when Bush Boake Allen was the, the Chicago 13:49 6 plant was, I believe it was called a subsidiary at 13:50 7 the time of IFF, so it may have been that they 13:50 8 transferred some of the letterhead but it was still 13:50 9 a subsidiary. It was still part of BBA. It was 13:50 10 part of that transition period. 13:50 11 Q. So you think BBA stole some of your 13:50 12 letterhead and put this out without your knowledge? 13:50 13 MR. BRITTINGHAM: Objection. Move to 13:50 14 strike. 13:50 15 Q. This is IFF's document, is it not? 13:50 16 A. It has IFF letterhead on it, yes. 13:50 17 Q. And this is the document you -- 13:50 18 A. It's clearly information that was 13:50 19 carried over from BBA. 13:50 20 Q. And this is the document that you 13:50 21 said was your warning. Right? 13:50 22 A. This was the document that was used 13:50 23 for this particular butter flavor -- 13:50 24 Q. And the last thing -- 25 A. -- for the material safety data 13:50 0134 1 T. Bates/McClain 2 sheet. 13:50 3 Q. And the last thing that it says in 13:50 4 terms of hazard statements are no known health 13:50 5 hazards. True? 13:51 6 A. And again I believe the reason that 13:51 7 appears is because in the BBA classification system, 13:51 8 even things like water would be carried over and 13:51 9 listed on the material safety data sheet if it was 13:51 10 above 1 percent in the final formula. 13:51 11 Q. I don't care why it's there. It's 13:51 12 there, isn't it? 13:51 13 MR. BRITTINGHAM: Objection. 13:51 14 A. I'm trying to explain to you why it 13:51 15 could be there. 13:51 16 Q. Well, it's there? 13:51 17 A. It is there, yes. 13:51 18 MR. McCLAIN: All right. Let's take 13:51 19 a break. 13:51 20 THE VIDEOGRAPHER: Going off the 13:51 21 record. The time is 1:51 p.m. This is the end of 13:51 22 tape 4. 13:51 23 (Break taken from 1:51 p.m. to 13:51 24 2:02 p.m.) 14:03 25 THE VIDEOGRAPHER: We are back on the 14:03 0135 1 T. Bates/McClain 2 record. The time it 2:03 p.m. This is the 14:03 3 beginning of tape 5. 14:03 4 Q. Let's turn our attention to ConAgra 14:03 5 as our final subject here today. ConAgra had 14:03 6 purchased butter flavors from IFF for some time. Am 14:03 7 I right? 8 A. For a number of years, yes. 14:03 9 Q. And they had purchased butter flavor 14:03 10 from BBA for some time? 14:03 11 A. That's correct. 14:03 12 Q. But in 2003 they wanted IFF to tell 14:03 13 them all of the products that IFF was selling them 14:03 14 that contained diacetyl. Isn't that right? 14:03 15 A. Can you show me what you're referring 14:03 16 to? 14:03 17 MR. McCLAIN: Sure. Let's mark this 14:03 18 as Bates-8. 14:04 19 (Exhibit Bates-8 marked for 20 identification.) 14:05 21 Q. Do you see that on Bates page 43, "We 14:05 22 have a directive from ConAgra Foods Corporate for a 14:05 23 list of all flavor ingredients that contain diacetyl 14:05 24 in them"? Do you see that? It's at the bottom of 14:05 25 43. I think you're on a different page. 43. 14:05 0136 1 T. Bates/McClain 2 A. 43 it starts? 14:05 3 Q. Right. 14:05 4 MR. BRITTINGHAM: Under the rule of 14:05 5 completeness, could you read -- 14:05 6 Q. Just first of all tell me did I read 14:05 7 that first part right? 14:05 8 A. Let me just read through it. Okay? 14:05 9 (Examining document.) So this is a letter from 14:05 10 Derek Waldrep to a Linda Reuter. "We have a 14:05 11 directive from ConAgra Foods Corporate for a list of 14:06 12 all flavor ingredients that contain diacetyl in 14:06 13 them." 14:06 14 MR. BRITTINGHAM: Under the rule of 14:06 15 completeness, would you read the next sentence. 14:06 16 A. "Please provide a list of all flavor 14:06 17 ingredients on an Excel spreadsheet that provides 14:06 18 all items that you supply any of the ConAgra Food 14:06 19 Poultry Division Plants that contain diacetyl." 14:06 20 Q. "We need this information by 14:06 21 Thursday, January 30, 2003. If you do not use this 14:06 22 item in any of the flavors/ingredients that you 14:06 23 supply us, please let us know that also. If you 14:06 24 have any questions, please feel free to contact me," 14:06 25 and then it gives a phone number. Correct? 14:06 0137 1 T. Bates/McClain 2 A. Correct. 14:06 3 Q. So you were supplying a number of 14:06 4 flavoring ingredients to ConAgra. Am I right? 14:06 5 A. This looks like what we were 14:06 6 supplying was through the poultry division. Yes, 14:06 7 this request is coming from the poultry division. 14:06 8 Q. Mr. Bates, you just need to answer my 14:07 9 questions. Okay? You already said that. My 14:07 10 question was more specific than that. Go back to my 14:07 11 question. 14:07 12 A. And your question was? 14:07 13 Q. Well, let's let her read it. 14:07 14 (Question read.) 14:07 15 A. That's correct. 14:07 16 Q. Subsequently there was communication 14:07 17 with ConAgra about the butter flavor supplied for 14:07 18 use in the microwave popcorn area. Isn't that 14:07 19 right? 20 A. Can you show me a document that 14:07 21 you're referring to? 14:07 22 Q. I don't need to show you any document 14:07 23 for you to know that in fact there was communication 14:08 24 regarding the butter flavor at the microwave popcorn 14:08 25 plant because you and I went over all that in your 14:08 0138 1 T. Bates/McClain 2 last deposition. That's a true statement, isn't it? 14:08 3 A. There was communication but I don't 14:08 4 know if -- 14:08 5 Q. Stay with my question and then I'll 14:08 6 show you documents. 14:08 7 A. All right. 14:08 8 Q. I promise. 14:08 9 A. Okay. 14:08 10 Q. Let's go back. There was 14:08 11 communication that you're aware about that involved 14:08 12 the butter flavor supplied to the popcorn plant that 14:08 13 ConAgra operated. Right? 14:08 14 A. That's correct. 14:08 15 Q. Let me show you what we'll mark as 14:08 16 Exhibit 9, Bates-9. 14:08 17 (Exhibit Bates-9 marked for 14:08 18 identification.) 14:10 19 Q. To only questions I'm going to ask 14:10 20 you about are on the first two pages. You're 14:10 21 welcome to look. 14:10 22 A. (Examining document.) 14:10 23 Q. Who is Paul Bennett? 14:11 24 A. Paul Bennett from this, I'm not sure 14:11 25 who he is but apparently he works for Arnotts, which 14:11 0139 1 T. Bates/McClain 2 is a customer of IFF's. 14:11 3 Q. And Arnotts and -- Dave Rosen works 14:12 4 for you. Is that correct? 14:12 5 A. Dave Rosen works for IFF, yes. 14:12 6 Q. And Mr. Bennett in 2004 writes to 14:12 7 Dave Rosen and says regarding your "butter flavor 14:12 8 19314, which is about 10 percent diacetyl. The MSDS 14:12 9 is inadequate as it does not define the 14:12 10 circumstances of usage. Please clarify what is the 14:12 11 hazard if any posted and the recommended protective 14:12 12 equipment required in the following circumstances." 14:12 13 And he talks about decanting the concentrated 14:12 14 flavor, et cetera above 30 degrees centigrade. Do 14:12 15 you see that? 16 A. Yes, I do. 14:12 17 Q. All right. So it's true, isn't it, 14:12 18 that as of 2004 just like we saw back in 1995 in 14:12 19 regard to the Comstock Fruit Company, customers were 14:13 20 complaining to IFF and to BBA about your material 14:13 21 safety data sheets not being adequate. Isn't that 14:13 22 right? 23 MR. BRITTINGHAM: Object to the form. 14:13 24 A. They were asking questions about it, 14:13 25 yes. 0140 1 T. Bates/McClain 2 Q. Not only that, he complained that it 14:13 3 was inadequate. Right? That's the phrase he uses. 14:13 4 A. That's the phrase he uses, yes. 14:13 5 Q. Now, when you did change your 14:13 6 material safety data sheets and required ConAgra to 14:13 7 sign them, they objected, didn't they? 14:13 8 A. I believe so. 14:13 9 Q. And in fact ultimately that led IFF 14:13 10 to stop selling butter flavor to ConAgra. Correct? 14:13 11 A. I think that was part of the decision 14:14 12 for stopping sales to ConAgra. But we stopped sales 14:14 13 to all our microwave popcorn manufacturers. 14:14 14 MR. McCLAIN: Exhibit 10. 14:14 15 (Exhibit Bates-10 marked for 16 identification.) 14:14 17 Q. And what you concluded if you look 14:14 18 over at page 1852 from this document written in 14:14 19 2005, "We learned from the diacetyl and acetaldehyde 14:15 20 labeling we instituted a year ago that customers 14:15 21 don't like changes they don't know about ahead of 14:15 22 time." Right? 14:15 23 A. That's what it says. 14:15 24 MR. McCLAIN: Thank you, Mr. Bates. 14:15 25 That's all the questions I have. 14:15 0141 1 T. Bates/Brittingham 2 EXAMINATION BY MR. BRITTINGHAM: 10:06 3 Q. Mr. Bates, as you know and for the 14:15 4 record I represent International Flavors and 14:15 5 Fragrances and Bush Boake Allen. My name is David 14:15 6 Brittingham for the record. And I do have just a 14:15 7 few limited questions for you. 14:15 8 MR. McCLAIN: Famous last words. 14:15 9 Before he starts in with that, let me just off the 14:16 10 record tell you a joke. 14:16 11 (Discussion off the record.) 14:16 12 Q. You may refer to some of the 14:16 13 documents there in your stack. First I would like 14:16 14 you to look at Exhibit 327, which is the BASF 14:16 15 material safety data sheet. 14:16 16 (Exhibit 327 previously marked for 17 identification.) 18 A. Okay. I have it. 14:17 19 Q. I think you discussed earlier with 14:17 20 Mr. McClain the fact that the original date on this 14:17 21 material safety data sheet is 1994. Is that 14:17 22 correct? 23 A. That's correct. 14:17 24 Q. What is the revision date listed on 14:17 25 this material safety data sheet? 14:17 0142 1 T. Bates/Brittingham 2 A. December 17th, 1997. 14:17 3 Q. Turn with me to page 2. What 14:17 4 information did BASF list in this material safety 14:17 5 data sheet about acute overexposure effects? 14:17 6 A. "Contact with the eyes may result in 14:17 7 severe irritation. Permanent injury may result. 14:17 8 Contact with the skin may result in moderate 14:17 9 irritation." 14:17 10 Q. Does this material safety data sheet 14:17 11 indicate any respiratory effects from an acute 14:18 12 overexposure standpoint? Again looking at page 2 14:18 13 still. 14:18 14 A. Just on page 2? No. 14:18 15 Q. Turn with me to the next page, 14:18 16 please. On the next page of the document are any 14:18 17 acute overexposure effects indicated on this page as 14:18 18 they relate to inhalation? 14:18 19 MR. McCLAIN: Object to the form of 14:18 20 the question. The document speaks for itself. 14:18 21 A. Inhalation causes irritation to the 14:18 22 respiratory tract. 14:18 23 Q. What does this material safety data 14:18 24 sheet indicate with respect to any chronic 14:18 25 overexposure effects associated with diacetyl? 14:19 0143 1 T. Bates/Brittingham 2 MR. McCLAIN: Objection. It's not 14:19 3 the best evidence and it's misleading. 14:19 4 A. It says that there are no known 14:19 5 chronic effects associated with this material. 14:19 6 Q. You were asked some questions about 14:19 7 the health hazard ratings that occurred on certain 14:19 8 internal batch sheets and how they might be 14:19 9 different from the health hazard ratings that appear 14:19 10 on an MSDS. Do you remember that? 14:19 11 A. Yes. 14:19 12 Q. First of all, tell us how are health 14:19 13 hazard ratings determined? 14:19 14 A. Health hazard ratings are subjective 14:19 15 is my understanding. They're based on the 14:19 16 information that is gathered in the hazard 14:19 17 statements that are made. 14:20 18 In the IFF system they're given a 14:20 19 ranking based on the information that's entered from 14:20 20 the vendor, so that information is ranked and goes 14:20 21 into a computer database and the logic itself 14:20 22 determines what the HFR codes are. 14:20 23 Q. Are health hazard ratings different 14:20 24 than health hazard warnings or phrases? 14:20 25 A. Oh, definitely. 14:20 0144 1 T. Bates/Brittingham 2 Q. What is the difference? 14:20 3 A. Like I said, an HFR health rating is 14:20 4 a subjective number and it's a grade between zero 14:20 5 and 4. The health warnings are specific statements. 14:20 6 Q. Are there reasons why the health 14:21 7 hazard ratings on a batch sheet for a particular 14:21 8 product might be different than a health hazard 14:21 9 rating that ends up on the MSDS for the finished 14:21 10 product? 14:21 11 MR. McCLAIN: Objection. Calls for 12 speculation. 14:21 13 A. It could be because of the way the 14:21 14 material is being handled. It may be that manual 14:21 15 handling was involved with the material. It could 14:21 16 be because they're using the pure material as 14:21 17 opposed to a product. 14:21 18 Q. Did NIOSH come out with an alert that 14:22 19 made certain recommendations with respect to 14:22 20 respiratory issues in flavorings in late 2003 or 14:22 21 early 2004? 14:22 22 A. Yes, it did. 14:22 23 MR. McCLAIN: It was in 2004. 14:22 24 Q. And did that NIOSH alert make certain 14:22 25 industry-wide recommendations with respect to 14:22 0145 1 T. Bates/Brittingham 2 flavorings? 14:22 3 A. Yes, it did. 14:22 4 Q. Did it make industry-wide 14:22 5 recommendations with respect to MSDSs and labels for 14:22 6 flavorings? 14:22 7 A. Yes, it did. 14:22 8 Q. And following that NIOSH alert, did 14:22 9 IFF make changes to its MSDS and its labels? 14:23 10 A. Yes, we did. 14:23 11 Q. And did IFF incorporate the 14:23 12 recommendations that were contained by NIOSH in the 14:23 13 NIOSH alert? 14:23 14 A. Yes, we did. 14:23 15 Q. When did those changes occur 14:23 16 following the NIOSH alert? 14:23 17 A. I believe probably March or April 14:23 18 of 2004. 14:23 19 Q. Look if you would at Bates Exhibit 6, 14:23 20 which is the Quest risk assessment. 14:23 21 A. Okay. 14:23 22 Q. Was the Quest risk assessment which 14:23 23 was discussed earlier in this exhibit attached to a 14:24 24 series of emails? 14:24 25 A. Yes, it was. 14:24 0146 1 T. Bates/Brittingham 2 Q. What is the date of those emails? 14:24 3 A. Let's see. The date of one is 14:24 4 October 15th, 2004 and another one is October 9th, 14:24 5 2004. 14:24 6 Q. Would that have been after IFF had 14:24 7 made changes to its MSDS and labels pursuant to the 14:24 8 recommendations contained in the NIOSH alert? 14:24 9 MR. McCLAIN: I'm sorry. What date 14:24 10 was that now? 14:24 11 THE WITNESS: October 15th, 2004 and 14:24 12 October 19th, 2004. 14:24 13 Q. My question was is the date of this 14:24 14 email after the changes that had been made to the 14:24 15 IFF MSDS and labels consistent with the NIOSH alert? 14:25 16 A. Yes, it is. 14:25 17 Q. In 2005 did FEMA come out with a 14:25 18 report that made additional recommendations with 14:25 19 respect to MSDSs and labeling for flavors? 14:25 20 A. Yes, they did. 14:25 21 Q. Did IFF make again more changes to 14:25 22 its MSDS and its labels consistent with those 14:25 23 recommendations? 14:25 24 A. I believe the report you're referring 14:25 25 to is 2004, the FEMA report. I believe that came 14:25 0147 1 T. Bates/Brittingham 2 out in August of 2004. 14:25 3 Q. In any event -- 14:25 4 MR. McCLAIN: I think he's right. 14:25 5 Q. -- FEMA produced a report which made 14:25 6 certain recommendations related to flavors and their 14:25 7 MSDSs and labels. Correct? 14:25 8 A. Correct. 14:25 9 Q. And IFF made certain changes to its 14:25 10 MSDSs and labels consistent with those 14:26 11 recommendations? 14:26 12 A. Correct. 14:26 13 Q. One of the last documents you were 14:26 14 looking at was Bates No. 9. Mr. McClain asked you 14:26 15 some questions about the email from Paul Bennett at 14:26 16 Arnotts. Looking at this document, is there any 14:26 17 indication that Rob Brogus maybe responded to 14:26 18 Mr. Bennett's inquiry? I'm looking at the email at 14:26 19 the top of the page from Dave Rosen. 14:27 20 A. All right. I believe Mark Fukayama 14:27 21 is responding to Dave Rosen. He says, "Dave, I 14:27 22 believe Rob Brogus has responded to questions 14:27 23 regarding worker safety and protection." 14:27 24 Q. Turn to the very last page of that 14:27 25 document if you would. Do you see the email from 14:27 0148 1 T. Bates/Brittingham 2 Rob Brogus that begins, "In response to this 14:27 3 inquiry"? 14:27 4 A. Yes. 14:27 5 Q. Does that appear to you to be a 14:27 6 response to the inquiry by Mr. Bennett? 14:27 7 A. Yes, it does. 14:27 8 Q. I think we've already established 14:27 9 that BBA employees at the Chicago plant were making 14:28 10 butter flavoring. Is that correct? 14:28 11 A. That's correct. 14:28 12 Q. Were BBA employees at the Chicago 14:28 13 plant also using diacetyl in its 100 percent form? 14:28 14 A. Yes, they were. 14:28 15 Q. Based upon your investigation and 14:28 16 what you learned during the course of this case, are 14:28 17 you aware of any BBA employees suffering respiratory 14:28 18 injuries or complaints as a result of making butter 14:28 19 flavorings or using diacetyl? 14:28 20 A. No, I'm not. 14:28 21 MR. McCLAIN: Objection. Lack of 14:29 22 foundation. Move to strike. 14:29 23 Q. Are you aware of a flavor making 14:29 24 company named Givaudan? 14:29 25 A. Yes, I am. 14:29 0149 1 T. Bates/Brittingham 2 Q. Are they a competitor of IFF? 14:29 3 A. Yes, they are. 14:29 4 Q. Are you aware that Givaudan owns a 14:29 5 flavor-making plant in Cincinnati, Ohio? 14:29 6 A. Yes, I am. 14:29 7 Q. Are you aware that the plant in 14:29 8 Cincinnati, Ohio was formally owned by Tastemaker 14:29 9 before being purchased by Givaudan? 14:29 10 A. Yes, I am. 14:29 11 Q. Are you aware that some workers in 14:29 12 the Tastemaker plant may have experienced 14:29 13 respiratory problems during the 1990s? 14:29 14 A. I became aware of that, yes. 14:29 15 Q. Did you also become aware that some 14:29 16 of the workers in the Tastemaker plant may have been 14:29 17 diagnosed with bronchiolitis obliterans in the 14:30 18 1990s? 14:30 19 A. I became aware of it, yes. 14:30 20 Q. Did you become aware of that through 14:30 21 the course of this case? 14:30 22 A. Correct. 14:30 23 Q. Prior to your involvement in what you 14:30 24 learned during the course of this case, did 14:30 25 Tastemaker or Givaudan ever make IFF or BBA aware of 14:30 0150 1 T. Bates/Brittingham 2 the respiratory issues it experienced at its 14:30 3 Cincinnati plant? 14:30 4 A. Not that I'm aware of, no. 14:30 5 MR. CALABRESE: Objection. 14:30 6 Q. As flavor-making companies, would IFF 14:30 7 and BBA have been interested in learning about the 14:30 8 respiratory issues occurring at the Tastemaker 14:30 9 plant? 14:30 10 MR. McCLAIN: Objection to the 14:30 11 question. 14:30 12 A. Of course. 14:30 13 Q. Why would that information have been 14:30 14 important to IFF and BBA? 14:30 15 A. That would have been new information. 14:30 16 That's something that would have added value to our 14:30 17 understanding of the issues associated with the 14:31 18 material. 14:31 19 Q. How do you believe IFF or BBA might 14:31 20 have responded to that information? 14:31 21 A. We certainly would have gone back and 14:31 22 looked at our worker population, determine whether 14:31 23 or not we were experiencing issues, respiratory 14:31 24 issues with our workers who were working with butter 14:31 25 or butter flavors, look at their medical results, 14:31 0151 1 T. Bates/Brittingham 2 investigate what sort of engineering controls or 14:31 3 work practices we were using, and determine whether 14:31 4 or not there was a problem within our facilities and 14:31 5 perhaps even begin to discuss that with our 14:31 6 customers. 14:31 7 Q. We have talked about FEMA, the Flavor 14:31 8 Extract Manufacturers Association. 14:31 9 A. (Nodding.) 14:31 10 Q. Does FEMA have different committees 14:31 11 which address different matters? 14:32 12 A. Yes, they do. 14:32 13 Q. Have you been a member of any of 14:32 14 those committees? 14:32 15 A. I'm a member of the occupational 14:32 16 safety and health and environmental committee. 14:32 17 Q. How long have you been a member of 14:32 18 that committee? 14:32 19 A. I have been a member since 1995. 14:32 20 Q. What is the role of that committee? 14:32 21 A. The role of the committee is to talk 14:32 22 about issues regarding worker safety and OSHA 14:32 23 compliance. 14:32 24 Q. Were there representatives or members 14:32 25 on that committee from BBA over the years? 14:32 0152 1 T. Bates/Calabrese 2 A. Yes, there were. 14:32 3 Q. Have there been members on that 14:32 4 committee from Givaudan? 14:32 5 A. Yes. 14:32 6 Q. As a member of that committee, were 14:32 7 you made aware of the respiratory issues occurring 14:32 8 at Tastemaker or Givaudan in the 1990s? 14:32 9 A. Yes, I was not. 14:32 10 MR. BRITTINGHAM: Those are all the 14:33 11 questions I have. Thank you. 14:33 12 MR. CALABRESE: Just give me one 14:33 13 moment if you will. 14:33 14 MR. McCLAIN: I'll give you two 14:33 15 minutes if you'd like. 14:33 16 THE VIDEOGRAPHER: Do you want to go 14:33 17 off the record? 14:33 18 MR. McCLAIN: I don't know. Do you 14:33 19 need some time, Phil? 14:33 20 MR. CALABRESE: Let's take a short 14:33 21 break. 22 THE VIDEOGRAPHER: Going off the 14:33 23 record. The time is 2:33 p.m. 14:33 24 (Break taken from 2:33 p.m. to 14:33 25 2:34 p.m.) 0153 1 T. Bates/Calabrese 2 THE VIDEOGRAPHER: We are back on the 14:34 3 record. The time is 2:34 p.m. 14:34 4 EXAMINATION BY MR. CALABRESE: 10:06 5 Q. Good afternoon, Mr. Bates. My name 14:34 6 is Phil Calabrese, counsel for Givaudan Flavors 14:34 7 Corporation. You and I have met before. I just 14:34 8 have a couple quick follow-up questions for you. 14:34 9 Mr. Brittingham was asking you some 14:34 10 questions about some respiratory issues at the 14:34 11 Tastemaker plant in Cincinnati. I believe your 14:34 12 testimony was that IFF would have been interested in 14:35 13 learning about those. Did FEMA contact IFF in 1996 14:35 14 or 1997 to inquire whether IFF had had respiratory 14:35 15 injuries at any of its plants? 14:35 16 A. Not that I'm aware of. 14:35 17 Q. Did FEMA contact BBA? 14:35 18 A. Not that I'm aware of. 14:35 19 Q. What did you do to determine whether 14:35 20 FEMA had made such contacts with either company? 14:35 21 MR. BRITTINGHAM: Object to the form. 14:35 22 A. I was not aware that they made the 14:35 23 contacts. 14:35 24 Q. In terms of the items that you 14:36 25 indicated that were reasons you would like to know 14:36 0154 1 T. Bates/Calabrese/McClain 2 that information and the items you indicated IFF 14:36 3 might do in response to that information about the 14:36 4 Tastemaker plant, wouldn't you need to know 14:36 5 substances that were causing any respiratory 14:36 6 problems at the Tastemaker plant? 14:36 7 MR. McCLAIN: Object to the form of 14:36 8 the question. Why would he have needed to know when 14:36 9 you didn't want to know it? 14:36 10 Q. You can go ahead and answer it. 14:36 11 MR. McCLAIN: I object to the form of 14:36 12 the question. 14:36 13 A. I think it would have been helpful to 14:36 14 know the materials involved and the circumstances 14:36 15 and the conditions that were being used at the 14:36 16 Tastemaker plant. 14:36 17 MR. CALABRESE: Thank you. Nothing 14:37 18 further. 14:37 19 MR. McCLAIN: I guess it's back to 14:37 20 me. 10:06 21 EXAMINATION BY MR. McCLAIN: 10:06 22 Q. Mr. Brittingham asked you some 14:37 23 questions about potential reasons for the difference 14:37 24 in health ratings between the internal operating 14:37 25 procedures and the MSDS. Do you remember those 14:37 0155 1 T. Bates/McClain 2 questions? 14:37 3 A. Yes. 14:37 4 Q. There's another reason that's 14:37 5 possible for the difference, isn't there? 14:37 6 MR. BRITTINGHAM: I object as to the 14:37 7 form. 14:37 8 Q. A lack of due care? 14:37 9 MR. BRITTINGHAM: Objection. Move to 14:37 10 strike. 14:37 11 Q. That's another potential reason, 14:37 12 isn't it? 13 A. I wouldn't describe it that way. 14:37 14 Q. You talked to Mr. Brittingham about 14:37 15 what you would have done if you had been told in 14:37 16 1997. But in fact you were told in 1997. FEMA told 14:37 17 you in 1997 that the reason that they were having 14:37 18 their conference, respiratory protection in the 14:37 19 flavor and food industry, was because of a report 14:37 20 from a member company that they had bronchiolitis 14:37 21 obliterans in their plant. Isn't that true? 14:38 22 MR. BRITTINGHAM: Objection. Assumes 14:38 23 facts not in evidence. Move to strike. 14:38 24 A. I don't believe that information was 14:38 25 disclosed at the '97 conference. I believe that 14:38 0156 1 T. Bates/McClain 2 information was disclosed at the 2002 conference. 14:38 3 Q. Have you reviewed the '97 conference 14:38 4 and the introductory comments by Mr. Hallagan? 14:38 5 A. I did not attend that conference. 14:38 6 Q. And you haven't reviewed those 14:38 7 conference materials? 14:38 8 A. I looked at the conference material. 14:38 9 Q. Let me just ask you to assume that in 14:38 10 Mr. Hallagan's introductory comments in 1997 he 14:38 11 informed the membership of a case of bronchiolitis 14:38 12 obliterans in the flavoring industry. Don't you 14:38 13 think it was incumbent upon both BBA and IFF to ask 14:38 14 hey, what are you talking about? 14:38 15 MR. BRITTINGHAM: Objection. Move to 14:38 16 strike. 14:38 17 A. If he made those statements and if he 14:38 18 was talking about one case, I did not attend the 14:38 19 conference so I really don't know what he said at 14:39 20 the conference and how he used those statements. 14:39 21 Q. Isn't it true that you believe that 14:39 22 if he alerted the conference about a case of 14:39 23 bronchiolitis obliterans in the food industry, that 14:39 24 would have been serious enough that IFF and BBA 14:39 25 should have made inquiry about it? 14:39 0157 1 T. Bates/McClain 2 MR. BRITTINGHAM: Objection. 14:39 3 Q. You believe that, don't you? 14:39 4 A. I believe based on our experience 14:39 5 with, in our workforce that that may have been just 14:39 6 an isolated incident. 14:39 7 Q. So that justified not asking anything 14:39 8 about it? 14:39 9 A. I was not there. I can't answer that 14:39 10 question. 14:39 11 Q. Do you believe that one case was 14:39 12 sufficient, that IFF and BBA should have asked a 14:39 13 question, "Tell me more about that incident"? 14:39 14 A. I don't know if anyone from IFF did. 14:40 15 Q. Well, I don't know either. That's 14:40 16 why I'm asking you because you're the IFF 14:40 17 representative. Don't you think that that would 14:40 18 have been prudent to do? 14:40 19 A. There may have been other discussions 14:40 20 that I'm not aware of. 14:40 21 Q. Sure. I know that. Come back to my 14:40 22 question, though. You believe, don't you, that it 14:40 23 would have been prudent to ask a question about it? 14:40 24 MR. BRITTINGHAM: Object to form. 14:40 25 A. And maybe questions were asked at the 14:40 0158 1 T. Bates/McClain 2 conference. 14:40 3 Q. Maybe. And they should have been. 14:40 4 Right? 14:40 5 A. They may have been. 14:40 6 Q. I know. But come back to my 14:40 7 question. They may have. I guess we'll find out if 14:40 8 you come to trial. But the reality is you think 14:40 9 they should have. Isn't that true? 14:40 10 MR. BRITTINGHAM: Objection. 14:40 11 A. More information should have been 14:40 12 forthcoming. 14:40 13 Q. And IFF and BBA should have asked 14:41 14 some questions about it. Right? 14:41 15 A. They may have. 14:41 16 Q. Well, I know they may have. 14:41 17 A. They may have. I don't know. I'm 14:41 18 telling you from what I know. 14:41 19 Q. Mr. Bates, you're here as IFF and 14:41 20 BBA's representative and if Tom Bates had been there 14:41 21 and heard that there was a case of bronchiolitis 14:41 22 obliterans in the flavoring industry, he would have 14:41 23 said, "I want to know about that." Am I right? 14:41 24 A. You would want to know more 14:41 25 information. 14:41 0159 1 T. Bates/McClain 2 MR. BRITTINGHAM: I object and move 14:41 3 to strike. 14:41 4 Q. Can I hear that answer again? 14:41 5 A. We would want to know more 14:41 6 information. 14:41 7 Q. And if Tom Bates had been the man 14:41 8 there, he would have said, "I want to know about 14:41 9 this case." Right? Am I right? 14:41 10 A. We would want to know more 14:41 11 information, yes. 14:41 12 MR. BRITTINGHAM: I object and move 14:41 13 to strike the whole line of questioning in that it's 14:41 14 based upon an erroneous assumption and facts that 14:41 15 are not in evidence and can't be in evidence. 14:41 16 MR. McCLAIN: I have no further 14:41 17 questions. 14:41 18 THE VIDEOGRAPHER: Going off the 14:41 19 record. The time is 2:41 p.m. This is the end of 14:41 20 tape 5 and concludes this deposition. 14:41 21 (Deposition concluded at 2:42 p.m.) 14:42 22 (Exhibits attached to this 23 transcript.) 24 25 0160 1 ERRATA SHEET 2 I, THOMAS BATES, do hereby certify 3 that I have read the foregoing transcript of my 4 testimony, taken on August 14, 2006, and have signed 5 it subject to the following changes: 6 DO NOT WRITE ON TRANSCRIPT. ENTER ANY CHANGES HERE. 7 PAGE # | LINE # | CHANGE | REASON 8 ______ | _______ | _______________________ | _______ 9 ______ | _______ | _______________________ | _______ 10 ______ | _______ | _______________________ | _______ 11 ______ | _______ | _______________________ | _______ 12 ______ | _______ | _______________________ | _______ 13 ______ | _______ | _______________________ | _______ 14 ______ | _______ | _______________________ | _______ 15 ______ | _______ | _______________________ | _______ 16 ______ | _______ | _______________________ | _______ 17 ______ | _______ | _______________________ | _______ 18 ______ | _______ | _______________________ | _______ 19 ______ | _______ | _______________________ | _______ 20 21 THOMAS BATES __________________________________ 22 Sworn and subscribed to before me on this _______ 23 day of _____________ 200__. 24 25 SIGNATURE OF NOTARY PUBLIC _________________________ 0161 1 C E R T I F I C A T E 2 I, MARGE TEILHABER, a Certified Shorthand 3 Reporter and Notary Public of the States of New 4 Jersey and New York, do hereby certify that prior to 5 the commencement of the examination, the witness was 6 sworn by me to testify to the truth, the whole truth 7 and nothing but the truth. 8 I do further certify that the foregoing is a 9 true and accurate 161-page transcript of the 10 testimony as taken stenographically by and before me 11 at the time, place and on the date hereinbefore set 12 forth. 13 I do further certify that I am neither of 14 counsel nor attorney for any party in this action 15 and that I am not interested in the event nor 16 outcome of this litigation. 17 The witness/attorney has requested review of 18 the transcript, and if any changes are made, they 19 will be appended to the transcript. 20 _________________________________________ 21 Notary Public of the States of NJ, NY, and CT 22 New Jersey I.D. No. 64424 23 New Jersey commission expires August 7, 2011 New York registration No. 01TE4741157 24 New York commission expires February 28, 2010 Connecticut account No. 141062 25 Connecticut commission expires March 31, 2010