0001
1 COURT OF COMMON PLEAS
2 HAMILTON COUNTY, OHIO
3
4 TIMOTHY ARTHUR, et :
5 al., :
6 Plaintiffs, : CASE NO. A0307157
7 vs. :
8 INTERNATIONAL :
9 FLAVORS & :
10 FRAGRANCES, INC., :
11 et al., :
12 Defendants. :
13 Videotaped deposition of MICHAEL DAVIS,
14 a witness herein, taken by the plaintiffs as
15 upon cross-examination, pursuant to the Ohio
16 Rules of Civil Procedure and pursuant to
17 agreement by counsel as to the time and place
18 and stipulations hereinafter set forth, at the
19 offices of Damond Mace, Esq., Squire, Sanders,
20 312 Walnut Street, Suite 3500, Cincinnati, Ohio,
21 at 1:00 p.m. on Thursday, the 16th day of March,
22 2006, before Valerie Jones Conn, a Registered
23 Professional Reporter and Notary Public within
24 and for the State of Ohio.
0002
1 APPEARANCES
2
On behalf of Plaintiff:
3
STEPHEN CRICK, ESQ.
4 of
Humphrey Farrington & McClain
5 221 W. Lexington
Suite 400
6 Independence, Missouri 64051
7 On behalf of Defendant:
8 DAMOND R. MACE, ESQ.
of
9 Squire Sanders & Dempsey
4900 Key Tower
10 127 Public Square
Cleveland, Ohio 44114
11
On behalf of Defendant:
12
FRANK CLEVELAND, III, ESQ.
13 of
Dinsmore & Shohl
14 1900 Chemed Center
255 E. Fifth Street
15 Cincinnati, Ohio 45202
16 ALSO PRESENT: Rick Grubb, videographer
17
18
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20
21
22
23
24
0003
1 S T I P U L A T I O N S
2 It is stipulated by counsel for the respective
3 parties that the deposition of MICHAEL DAVIS, a
4 witness herein, may be taken at this time by the
5 plaintiffs as upon cross-examination and
6 pursuant to the Ohio Rules of Civil Procedure
7 and notice to take deposition, all other legal
8 formalities being waived by agreement; that the
9 deposition may be taken in stenotype by the
10 Notary Public Reporter and transcribed by her
11 out of the presence of the witness; that the
12 transcribed deposition was made available to the
13 witness for examination and signature and that
14 signature may be affixed out of the presence of
15 the Notary Public-Court Reporter.
16
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18
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24
0004
1 I N D E X
2
3 EXAMINATION PAGE
4 BY MR. MACE 16
5 3
6 BY MR. McCLAIN 16
7 6
8
9
EXHIBIT PAGE
10 Exhibit 1 8
Exhibit 2 36
11 Exhibit 3 42
Exhibit 4 56
12 Exhibit 5 62
Exhibit 6 83
13 Exhibit 7 94
Exhibit 8 98
14 Exhibit 9 102
Exhibit 10 104
15 Exhibit 11 107
Exhibit 12 110
16 Exhibit 13 112
Exhibit 14
17 Exhibit 15 118
Exhibit 16 121
18 Exhibit 17 127
Exhibit 18 128
19 Exhibit 19 133
Exhibit 20 137
20 Exhibit 21 138
Exhibit 22 140
21 Exhibit 23 143
Exhibit 24 148
22
23
24
0005
1 MR. GRUBB: The time is 1:21 and 20
2 seconds, the date is 3-16-06. If you'd please
3 swear the witness, Ms. Conn.
4 MICHAEL DAVIS,
5 a witness herein, of lawful age, having been
6 first duly sworn, as hereinafter certified, was
7 examined and testified as follows:
8 MR. GRUBB: We're on the record,
9 sir, videotape and DVD disk number one.
10 CROSS-EXAMINATION
11 BY MR. McCLAIN:
12 Q. Would you state your full name for
13 the record, please?
14 A. Michael Earl Davis.
15 Q. Mr. Davis, at one point were you
16 president of an organization called FEMA?
17 A. Yes.
18 Q. And what -- what does -- is FEMA an
19 acronym for a longer name?
20 A. Yes, it is. Flavor Extract
21 Manufacturers Association.
22 Q. And you have also been an officer
23 of a flavor company, as well, haven't you?
24 A. I guess probably, that's correct.
0006
1 Q. Okay. We're going to get to that
2 in just a minute, the exact details of all your
3 employment, etcetera, but I want to go to the
4 heart of the matter. I'm going to mark as
5 Exhibit 1 a memorandum from FEMA that we'll mark
6 as Davis Exhibit 1.
7 (Exhibit 1 was marked for
8 identification.)
9 Q. That bears a fax at the top with
10 your name on it in the years that I believe that
11 you were the president of FEMA --
12 A. Okay.
13 Q. -- that being October of 2001.
14 That was the time when you were the president of
15 FEMA?
16 A. I do not remember. I'd have to go
17 back and look at the actual years. I was on the
18 board for a number of years so I'm not sure the
19 year I was the president. If you tell me that
20 was it I'm sure you have your numbers, the days
21 right.
22 Q. We checked it and we have the
23 various rosters and I have them so you can
24 confirm it if you need to.
0007
1 A. No. It's a one year assignment,
2 you might say.
3 Q. This is October of 2001 and at that
4 point in time the -- the world was shocked to
5 learn that flavoring ingredients could cause a
6 disease called bronchiolitis obliterans. Do you
7 recall that?
8 MR. MACE: Objection. Move to
9 strike.
10 MR. WOODSIDE: Excuse me. Could we
11 have an understanding that if an objection is
12 made by one defendant need not be made by all,
13 too, have all take advantage of it or credit for
14 it, Mr. McClain?
15 MR. McCLAIN: Yes, that's fine.
16 MR. WOODSIDE: Thank you.
17 A. Could you ask the question again?
18 Q. Do you recall that?
19 A. Could you ask the question again?
20 Q. In 2001 there was a public
21 announcement about workers who worked with
22 flavoring ingredients being diagnosed with
23 bronchiolitis obliterans that was of some
24 concern to FEMA. Isn't that true?
0008
1 MR. MACE: Objection. Answer.
2 A. I'd prefer if you stated that maybe
3 differently because I'm not sure of an
4 announcement that you're referring to so could
5 you help me with that a little bit, please?
6 Q. Do you recall that in 2001 there
7 were publications, newspaper stories, that
8 detailed the diagnosis of bronchiolitis
9 obliterans in individuals working with flavors?
10 A. What I remember very specifically
11 is that there were media articles, don't
12 remember which publications, that -- that
13 indicated that there were employees in popcorn
14 plant that had severe respiratory problems, and
15 I don't know what the causative factors were for
16 that.
17 Q. Well, let's look at the document
18 that -- that you received. Look at this, would
19 you?
20 A. Uh-huh.
21 MR. MACE: Objection. Assumption.
22 Q. Well, it bears your name at the
23 top, am I right?
24 A. That's my fax number at the top.
0009
1 Q. And it was sent from The Roberts
2 Group, am I right?
3 A. Yes, that's the management group
4 for FEMA --
5 Q. Right.
6 A. -- which is a trade association.
7 Q. And is that your fax number at the
8 top?
9 A. Yes, it is.
10 Q. It says, in this document, which is
11 from Glenn Roberts, who is the president of The
12 Roberts Group, am I right?
13 A. I'm not sure what his title is.
14 It's within The Roberts Group but he is the
15 executive director for FEMA as part of -- from
16 his responsibility at The Roberts Group.
17 Q. And it's directed to FEMA official
18 representatives and FEMA government relations
19 committee, right?
20 A. Yes.
21 Q. And you served on both of those?
22 A. No.
23 Q. You were a FEMA official
24 representative and you were a FEMA government --
0010
1 on the FEMA government relations committee at
2 one point?
3 MR. MACE: Objection.
4 A. I was -- to the best of my
5 knowledge I've never been on the FEMA government
6 relations committee. I may have, at some point
7 in my career, attended a government relations
8 committee meeting over the last 20 years but I
9 don't recall that. I was one of many -- each
10 company typically identifies a -- an official
11 FEMA representative, right. I was not the
12 official FEMA representative. Different from
13 being the president of FEMA. So each company
14 has a particular representative to FEMA.
15 Q. All right. And your company, at
16 this time, in 2001, was Givaudan; am I correct?
17 A. In 2001 I was working for Givaudan,
18 yes. That's correct.
19 Q. And what was your title?
20 A. I was the global head of flavors.
21 Q. And global head of flavors, did you
22 have a title such as president?
23 A. We used the term head rather than
24 president.
0011
1 Q. So you were the global head of
2 flavors for Givaudan, a company that was a
3 member of FEMA, am I right?
4 A. Yes.
5 Q. And you were also president of FEMA
6 in 2001, correct?
7 A. As I said before, I -- I'm taking
8 your word that 2001 was the right year. I'm not
9 sure. I was one year the president of FEMA and
10 that's the approximate time frame, but whether
11 it was 2001, 2002, or 2000 I don't remember.
12 Q. All right. Look at -- look at
13 this. There are press reports attached that
14 several workers -- it's on the front page, the
15 first paragraph.
16 A. Okay.
17 Q. Do you see where I am?
18 A. Uh-huh.
19 Q. There are press reports, paren,
20 attached, that several workers at a popcorn
21 factory were seriously injured due to exposure
22 to high concentrations of ingredients in the
23 process of microwave popcorn manufacturing.
24 Preliminary report by NIOSH suggests that
0012
1 diacetyl, an ingredient in butter flavor, may
2 have been the case of the workplace injury. I
3 think that that's supposed to be cause but it
4 says case. Do you that?
5 A. Yes.
6 MR. MACE: Objection, move to
7 strike. Hearsay. Reading from documents.
8 Q. And this is -- and, by the way,
9 diacetyl is a chemical that was utilized by
10 Givaudan as a butter flavor, among other
11 flavors, am I correct?
12 MR. MACE: Objection.
13 A. It doesn't say anything about
14 Givaudan or diacetyl in this paragraph you're
15 reading. I'm sorry.
16 Q. Do you see that it says diacetyl?
17 A. Yes, but it doesn't have any
18 mention to -- the last sentence you just made is
19 not in here. You were reading this to me. I'm
20 sorry. That's why I said that.
21 Q. No, I read that to you and then I
22 asked a question.
23 A. Okay. I'm sorry.
24 Q. Okay. So listen to my question if
0013
1 you would.
2 A. Yeah.
3 Q. Givaudan utilized diacetyl, didn't
4 it?
5 A. Givaudan uses diacetyl in the
6 manufacture of many, many flavors along with
7 thousands of other ingredients. That's a
8 correct statement.
9 Q. Okay. Look over the second page of
10 this fax to you from The Roberts Group.
11 A. Uh-huh.
12 Q. Now you said you couldn't recall
13 what newspaper articles in the fall of 2001 --
14 A. Right.
15 Q. -- had talked about this incident
16 and maybe I can refresh your recollection.
17 Here's one from the Wall Street Journal of
18 October 3rd --
19 A. Okay.
20 Q. -- of 2001. Do you recall that the
21 Wall Street Journal reported at least two dozen
22 workers at a microwave popcorn plant in Jasper,
23 Missouri have been diagnosed with serious lung
24 ailments and federal investigators say they are
0014
1 nearly certain they have pinpoint -- pinpointed
2 the cause, artificial butter flavor.
3 MR. MACE: Objection. Move to
4 strike. Hearsay.
5 A. I do not remember this particular
6 article. I don't remember the numbers of
7 peoples. I -- I definitely remember attention
8 this had in the media. As it says here
9 investigators find butter flavoring may pose a
10 risk to factory workers.
11 Q. Look at the second paragraph,
12 middle of the -- middle of the sentence. Since
13 '82 eight workers have developed bronchiolitis
14 obliterans, a rare disease in which lung tissue
15 is permanently destroyed.
16 MR. WOODSIDE: Excuse me, Mr.
17 McClain, you -- you did not read the right date.
18 Q. You're right. Let's start again.
19 You see where I am? Since 1992 --
20 A. Okay.
21 Q. -- eight workers --
22 A. Okay.
23 Q. -- there have developed
24 bronchiolitis obliterans, a rare disease in
0015
1 which lung tissue is permanently destroyed. Six
2 of those eight employees are awaiting lung
3 transplants. Do you see that?
4 MR. MACE: Objection. Move to
5 strike.
6 A. This is the paragraph that relates
7 to Gilster-Mary Lee, Chester, Illinois. Yes, I
8 see that.
9 Q. And it says that -- it identifies a
10 Kathleen Kreiss from NIOSH. Do you see that in
11 the third paragraph?
12 MR. MACE: Objection.
13 Q. Fifth paragraph, I'm sorry. You
14 see that?
15 A. I see Kathleen Kreiss' name in the
16 fifth paragraph, yes.
17 Q. It says, in particular, the agency
18 is warning about diacetyl, a chemical compound
19 that smells and tastes like butter and is the
20 main ingredient in many butter flavorings.
21 MR. MACE: Objection.
22 Q. Do you see that?
23 MR. MACE: Objection. Move to
24 strike.
0016
1 A. Yes, I'm following what you're
2 reading here. Yes.
3 Q. It says, there are about 140
4 popcorn plants in the country. Do you see where
5 I am?
6 A. Uh-huh. Paragraph 6.
7 Q. And it says, we don't know how
8 widely the recommendation should be made. Dr.
9 Kreiss said, we're trying to get a handle on
10 that.
11 MR. MACE: Objection, hearsay.
12 Move to strike.
13 Q. Do you see that?
14 A. I see that.
15 Q. Now, first of all, did you know Dr.
16 Kreiss?
17 A. No.
18 Q. Do you know whether or not people
19 from Givaudan had communications with Dr.
20 Kreiss?
21 A. I do not know the answer to that.
22 Q. Do you know that NIOSH is
23 headquartered here in Cincinnati?
24 A. Actually I didn't know that.
0017
1 Q. NIOSH investigators -- look at the
2 last paragraph on this page -- NIOSH
3 investigators -- well, skip on to the next page.
4 Look at the paragraph that begins, we all have
5 confidence. Do you see that?
6 A. Uh-huh. Middle of the page?
7 Q. Yes. We all have confidence that
8 the plant can bring those exposures under
9 control, says Dr. Kreiss, but they don't have a
10 clean bill of health yet.
11 MR. MACE: Objection. Move to
12 strike.
13 Q. Do you see that?
14 A. I see that.
15 Q. And then in the, let's see, one,
16 two, three, four, five, sixth paragraph down it
17 discusses Eric Peoples. Do you see that?
18 A. Wait a minute. Sixth paragraph
19 that starts off he recalls --
20 Q. Yes.
21 A. -- teasing his supervisor?
22 Q. After about a year of work Mr.
23 Peoples says he, too, began to experience
24 congestion and shortness of breath?
0018
1 MR. MACE: Objection. Move to
2 strike.
3 A. I see that.
4 Q. Now look over at the next article
5 that was attached to you. Page four of the fax
6 also bearing your name at the top.
7 MR. MACE: Objection.
8 Q. New York Times, October 4th, 2001.
9 Here we have some other factors pointed out in
10 this article. Artificial butter suspected in
11 lung disease. Workers in two states have come
12 down with a severe lung disease that is
13 apparently linked to their work with vats of
14 artificial butter flavoring, doctors have
15 reported. Do you see that?
16 MR. MACE: Objection. Move to
17 strike.
18 A. Yes, I see that.
19 Q. Third paragraph, the lung damage
20 from bronchiolitis obliterans appears to be
21 permanent and four of the workers are so ill
22 that they are on the waiting list for lung
23 transplants.
24 MR. MACE: Objection. Move to
0019
1 strike.
2 Q. Do you see that?
3 A. Yes.
4 Q. Says, Dr. Talmadge E. King, chief
5 of medicine at the San Francisco General
6 Hospital and an expert on bronchiolitis
7 obliterans, said these cases were the first time
8 he had heard of an outbreak of a disease which
9 usually occurs in individual patients. Do you
10 see that?
11 MR. MACE: Objection. Move to
12 strike.
13 A. Yes.
14 Q. Dr. Kathleen Kreiss, who led the
15 investigation, said that the finding was a
16 surprise and that two important questions are
17 now being pursued by government scientists. Are
18 there cases that have not been reported and what
19 ingredients in the flavoring may have triggered
20 the disease. Do you see that?
21 MR. MACE: Objection and objection
22 to timing. Did he see it now when you're
23 pointing it out to him or did he see it back at
24 the time? Objection to form.
0020
1 MR. McCLAIN: Well, it's obvious,
2 counsel. You don't need to make speaking
3 objections. Just object and you can have them
4 ruled. He clearly received this memo.
5 MR. MACE: Objection.
6 MR. McCLAIN: That's where it was
7 faxed to him. It has his name at the top.
8 MR. MACE: Objection. Assumption.
9 MR. McCLAIN: It's a ridiculous
10 objection.
11 MR. MACE: Objection, assumption.
12 Objection, move to strike, reading from
13 documents. Hearsay.
14 Q. Let me just ask a general question.
15 A. I would say -- I would make one
16 statement, which is the fact that it was faxed
17 to my office does not mean that I read the
18 document. So I -- I am definitely reading it
19 now. Whether or not I read it at the time I do
20 not remember.
21 Q. Do you -- do you recall --
22 A. Just so you know. I mean, but
23 clearly it's in my hand now, I'm reading it and
24 I'm aware of the, you know, the publicity this
0021
1 had four years ago or whenever it was.
2 Q. And you recall that it had wide
3 publicity?
4 A. I recall that it was definitely
5 covered over a period of several weeks, maybe a
6 month in the news. Absolutely.
7 Q. And this was big news in the
8 flavoring industry, wasn't it?
9 A. I won't say it was big news but it
10 certainly was news in the flavoring industry,
11 yes.
12 Q. It wasn't big news that workers
13 exposed to flavors were in need of lung
14 transplants? Is that what you're telling the
15 jury?
16 MR. MACE: Objection. Objection,
17 assumptions. Objection.
18 A. I can't speak for how the rest of
19 the industry looked at this, all right?
20 Q. You were president of FEMA?
21 A. I was president of FEMA.
22 Q. It was a matter of great concern to
23 FEMA, wasn't it?
24 MR. MACE: Objection.
0022
1 A. What was of great concern to FEMA?
2 Q. The fact that workers were being
3 diagnosed with bronchiolitis obliterans and it
4 was alleged that it was caused from flavorings.
5 That was great -- of great concern to members of
6 FEMA, wasn't it?
7 MR. MACE: Objection.
8 A. I would say it was of interest to
9 the industry, that's correct.
10 Q. Just interest? The fact that
11 people were being diagnosed with potentially
12 life threatening disease was just of interest?
13 MR. MACE: Objection.
14 A. I think we need to understand the
15 situation so, once again, I don't like to
16 overreact to a situation so understanding was
17 important. Here it talks about that it
18 clearly -- if I look back to the one that just
19 is suspect I think in the one you gave to me
20 before said may pose a risk. So I think there's
21 a lot of understanding that need to take place.
22 So before you overreact important to understand
23 the facts in the situation. I think that was
24 important to -- to the industry as, you know,
0023
1 once again, when we're talking about flavorings
2 substances, okay, that we understand the
3 situation. You know, we're in the flavor
4 industry so it is important to us, all right?
5 Q. Fine. Let's -- let's just agree
6 then it was important to you at the time. Am I
7 right?
8 A. Important to the industry, that's a
9 correct statement.
10 Q. Okay. Now then look over at the
11 next page of this. This is page five of this
12 document. And it discusses another one of the
13 Jasper, Jasper popcorn workers, Angela Nalley.
14 At the bottom of the page it says, in October of
15 1994 Mrs. Nalley went to a hospital in Denver
16 for a lung biopsy. Her lungs were so inflamed
17 and damaged that doctors warned she might have
18 only a year to live and she was put on a waiting
19 list for a double lung transplant. Do you see
20 that?
21 A. Yes, I did.
22 MR. MACE: Objection to form,
23 objection to hearsay, move to strike. You need
24 to wait a second so I can make objections for
0024
1 the record before you answer.
2 A. All right.
3 MR. MACE: Thank you.
4 Q. Now look over at the next document
5 attached, which is a workshop that was put on by
6 NIOSH.
7 MR. MACE: Let me object to the
8 exhibit to the extent counsel's representing
9 that this was part of the same document as he
10 was earlier reading from.
11 MR. McCLAIN: You represented it,
12 counsel.
13 Q. Look at your Bates numbers, it's
14 1518 and then the next document in sequence is
15 1519. This is the way you produced it to us so
16 if you've misrepresented it to us I object to
17 that. We relied upon it. And if you're
18 claiming now that it wasn't part of the same
19 document you shouldn't have produced it in that
20 fashion.
21 MR. MACE: Just because two
22 documents follow each other doesn't mean they
23 were part of the same document, counsel. You
24 know that as well as I do.
0025
1 MR. McCLAIN: It doesn't say that
2 it follows anything. They were stapled together
3 this way the way you produced it to us.
4 MR. MACE: You're making a big
5 point about the fax line being to his office.
6 It has no similar fax line. They're obviously
7 two different documents. You're representing
8 they're one. They're not.
9 MR. McCLAIN: Why did you put them
10 together, then, counsel, and Bates stamp them in
11 this order?
12 MR. MACE: I did not. Object to
13 your characterization.
14 Q. Mister -- Mr. Davis, let's not get
15 off track here. You know, do you not, that
16 there was a workshop that was held by NIOSH on
17 this and Givaudan sent representatives to this
18 meeting. Isn't that true?
19 A. I do not know -- I do know that
20 there were definitely workshops held over years,
21 period of years. As to what dates those were
22 and whether or not they were sponsored by NIOSH
23 or FEMA I don't know the answer to that today.
24 Q. Okay. I understand. You know that
0026
1 a workshop did occur that Givaudan sent
2 representatives to on this issue; am I correct?
3 A. I would say I'm virtually sure that
4 we would have had representation at one or more
5 of these workshops.
6 Q. It says here under this --
7 A. I don't know if someone did attend
8 this workshop. I don't know that.
9 Q. Well, we'll try to clarify that.
10 A. That's fine.
11 Q. I think -- I think it will be clear
12 to you.
13 A. That's fine.
14 Q. Here -- here's workshop details
15 background. Bronchiolitis obliterans is well
16 known to transplant surgeons since this -- since
17 this long term complication develops in the
18 lungs of almost half of lung and bone marrow
19 recipients, and then the primary objective, to
20 share the latest information about bronchiolitis
21 obliterans from national experts and develop
22 recommendations for diagnosis, follow-up and
23 prevention of this serious lung disease. You
24 see that?
0027
1 MR. MACE: Objection. Move to
2 strike. And, counsel, so I can get a
3 clarification, I've been trying not to interrupt
4 you when you're reading. You're not going to
5 claim later that I need to make my objections
6 before you start reading, are you?
7 MR. McCLAIN: Do whatever you need
8 to.
9 MR. MACE: Let me get a continuing
10 objection then to the reading of the documents.
11 Q. Not -- Mr. -- Mr. Davis, do you see
12 where it says NIOSH -- I'm jumping back up to
13 the background paragraph.
14 A. Thank you.
15 Q. NIOSH became involved with
16 bronchiolitis obliterans last year when several
17 young employees in a -- of a microwave popcorn
18 processing factory developed this severe airway
19 obstruction.
20 MR. MACE: Objection, move to
21 strike.
22 Q. Do you see that?
23 A. I do see that.
24 Q. Now jump over to the next page with
0028
1 me of this document, which is Bates stamped in
2 order as the next document along with the fax
3 that begins at 1513. This is page 1520 in that
4 same fax sequence.
5 MR. MACE: Objection.
6 Q. Do you see bronchio --
7 bronchiolitis obliterans workshop Saturday,
8 August 25th, 2001, Morgantown, West Virginia?
9 A. Yes.
10 Q. It says, a -- after the break there
11 was a presentation made by James Lockey, M.D., a
12 previous outbreak of bronchiolitis obliterans in
13 a food flavoring plant. Do you see that?
14 MR. MACE: Objection. Move to
15 strike.
16 A. Yes, I do.
17 Q. Do you know -- do you know who Dr.
18 Lockey is?
19 A. I know Dr. Lockey's name by name,
20 not in person.
21 Q. And you know that he was an
22 individual who did work for Givaudan, do you
23 not?
24 MR. MACE: Objection.
0029
1 A. He actually did not do work for
2 Givaudan. He did work for, at least to the best
3 of my knowledge, he worked as a -- as an
4 external expert back in the 1990s, as part of --
5 is when -- for Tastemaker --
6 Q. Okay.
7 A. -- at that time.
8 Q. We'll -- we'll discuss the sequence
9 and -- but you were president of Tastemaker at
10 the time that he was doing work for that
11 company, am I right?
12 A. That's correct.
13 Q. And Tastemaker ultimately was
14 purchased by Givaudan, was it not?
15 A. I'm not sure about the legal
16 entities, so -- but, but in -- as a general
17 statement because -- I don't like general
18 statements but Tastemaker was acquired by Roche
19 who was a parent company for Givaudan. How that
20 fit together in terms of the legal entities and
21 that I don't know.
22 Q. Well, I'll just be clear about it.
23 Tastemaker was a flavoring company, wasn't it?
24 A. Yes.
0030
1 Q. Okay. And it was purchased by a
2 company called Roche, am I right?
3 A. I'm not sure how the deal
4 actually --
5 Q. I'm not holding you to that.
6 A. -- was handled.
7 Q. I'm just asking you the
8 practicality.
9 A. Okay.
10 Q. Givaudan was the buyer of
11 Tastemaker, wasn't it, ultimately?
12 MR. MACE: Objection. I think you
13 meant to say Roche.
14 A. I'm not sure of how that goes
15 together but Givaudan is a flavor company that
16 -- a flavor and fragrance company that was owned
17 by Roche Pharmaceutical and somehow that
18 organization acquired Tastemaker, and I say that
19 because I don't know the, you know, the
20 specifics.
21 Q. And I don't -- I'm not holding you
22 to that --
23 A. Okay.
24 Q. -- I'm just asking your
0031
1 understanding of it.
2 A. Yeah, uh-huh, operationally.
3 Q. And you were president -- and you
4 were president of -- of Tastemaker and you
5 became head of Givaudan Flavors, right?
6 A. Through a series of sequences. It
7 wasn't one feeding into the other. There was
8 other steps before that but, yes, that's
9 correct. Today I am the head of flavors and I
10 was -- today, and I was, in 1990s, the president
11 of Tastemaker.
12 Q. Okay.
13 A. Okay?
14 Q. And -- and it was for that entity,
15 Tastemaker, that Dr. Lockey did work; is that
16 what you're telling me?
17 A. That is what I'm telling you. Yes.
18 Q. And he -- when he's discussing a
19 previous outbreak of bronchiolitis obliterans in
20 a food flavoring plant that discusses the
21 Tastemaker plant. Is that your understanding?
22 A. That would be my -- that would be a
23 fair characterization, yes.
24 Q. And, in fact, you gave permission
0032
1 for Dr. Lockey to make this presentation in
2 2001, did you not?
3 A. I did not give him permission to do
4 that but we may have, as an organization. I was
5 not the one that specifically gave that okay.
6 Q. Okay. You're aware that that
7 permission was given?
8 A. I'm not, but I -- no -- no reason
9 to withhold that.
10 Q. Well, he was under a
11 confidentiality agreement. You understood that?
12 A. He's not under a confidentiality
13 agreement today. I do know that. Whether what
14 -- what timing that took place I don't know.
15 Q. You knew he was under one; isn't
16 that true?
17 A. He worked for us, as we do with all
18 of our external consultants, experts, everyone
19 that works for us works with a consultant --
20 with a confidentiality agreement. I know that
21 at some point between that time when he first
22 worked for us and Tastemaker and today that that
23 confidentiality agreement no longer is in place.
24 I don't know when that took place.
0033
1 Q. All right.
2 A. Okay.
3 Q. Let's -- let's take it step by
4 step.
5 A. Uh-huh.
6 Q. You know that one existed at some
7 point in time?
8 A. Yes.
9 Q. Am I right?
10 A. That's correct.
11 Q. And that he somehow made this
12 presentation in 2001; is that correct?
13 A. That's correct, so I assume that we
14 would have given him -- at some point prior,
15 prior to that, he would have been given a
16 release from confidentiality, I would assume.
17 Q. Okay. Now you will recall that all
18 of this publicity that we've just looked at
19 centered around a article that was published in
20 the New England Journal of Medicine. You recall
21 that?
22 MR. MACE: Objection.
23 A. No, I do not. I'm sorry.
24 Q. Let's look -- let's look at Exhibit
0034
1 2.
2 (Exhibit 2 was marked for
3 identification.)
4 MR. MACE: Do you have any other
5 copies, counsel?
6 MR. McCLAIN: I -- I'm sorry,
7 Damond. I only have two copies of that. If you
8 want to --
9 MR. MACE: Thank you, Frank.
10 MR. McCLAIN: -- look on with that.
11 I apologize, Mr. Woodside, I don't know why we
12 only have one copy.
13 MR. MACE: I think he's got it
14 memorized.
15 MR. McCLAIN: He does.
16 Q. Do you see at the bottom of this
17 document, Exhibit 2 to your deposition, that it
18 was published on August 1st of 2002?
19 MR. MACE: Objection.
20 A. Yes, I see that in the bottom left
21 hand corner.
22 Q. And it says, clinical bronchiolitis
23 obliterans and workers at a microwave popcorn
24 plant. Do you see that?
0035
1 MR. MACE: Objection. Move to
2 strike.
3 A. The heading of the article looks
4 like that, yes.
5 Q. Okay. And you see where it says
6 the excess rates of lung disease and lung
7 function abnormalities and the relation between
8 exposure and outcomes in this working population
9 indicate that they probably had occupational
10 bronchiolitis obliterans caused by the
11 inhalation of volatile butter flavoring
12 ingredients?
13 MR. MACE: Objection. Move to
14 strike.
15 A. I do not see that. I haven't found
16 where you're reading right now.
17 Q. Conclusions on the left -- left
18 hand --
19 A. Oh, sorry. Okay.
20 Q. Read it again. The excess rates of
21 lung disease and lung function abnormalities and
22 the relation between exposures and outcomes in
23 this working population indicate they probably
24 had occupational bronchiolitis obliterans caused
0036
1 by the inhalation of volatile butter flavoring
2 ingredients. Do you see that?
3 MR. MACE: Objection. Move to
4 strike.
5 A. I do see that.
6 Q. I want to direct your attention to
7 the conclusion, which is found on page 337. It
8 starts, support for this hypothesis. Do you see
9 where I'm in that?
10 A. I do.
11 Q. Support for this hypothesis comes
12 from the findings of the health hazard
13 investigation at a company that mixed flavorings
14 in the corn starch for the baking industry. Do
15 you see that?
16 MR. MACE: Objection. Move to
17 strike.
18 A. Yes.
19 Q. Eighteen, and the reference there,
20 if you look on the next page, is to health
21 hazard evaluation and technical assistance
22 report, International Bakers Services, Inc.,
23 South Bend, Indiana, Cincinnati National
24 Institute of Occupational Safety and Health
0037
1 1986.
2 MR. MACE: Objection. Move to
3 strike.
4 Q. Do you see that?
5 A. Yes.
6 Q. And it's true, isn't it, that that
7 was found by members of Givaudan or Tastemaker
8 in 1995 in regard to conditions in your own
9 plant?
10 MR. MACE: Objection.
11 Characterization.
12 A. What was found?
13 Q. The International Bakers Study that
14 NIOSH had done.
15 A. I am aware of the -- that -- in my
16 memory I do not remember the bake --
17 International Bakers or the bakers. What'd you
18 call it?
19 Q. International Bakers Study.
20 A. I don't remember a particular
21 study. I do know, as part of the work that we
22 did after -- from between '92 and '95, roughly,
23 that we found one -- there was one incident or
24 occurrence, I guess I would call it, that -- of
0038
1 a similar respiratory issue that we faced at
2 Tastemaker.
3 Q. Okay.
4 A. Okay. I don't remember the
5 specific of who it was but I do remember it was
6 a very different circumstance. The reports from
7 our people came back and said it's a very
8 different circumstance from our circumstance.
9 But part of that deep, deep dive trying to find
10 out what was going on, if there were any
11 concerns, we did surface one situation that
12 occurred in a plant, which I don't remember what
13 it was, I do now because I've, I've seen this.
14 Okay?
15 Q. All right. And we're going to see
16 a document that I think will refresh you further
17 on that, but I think your recollection --
18 A. That's fine.
19 Q. -- is close enough for our purposes
20 at this time. Okay?
21 A. Great.
22 Q. It says, at that company two young
23 workers in the mixing facility, neither of whom
24 had ever smoked, had bronchiolitis obliterans
0039
1 within five months after beginning work. Do you
2 see where I am?
3 MR. MACE: Objection. Move to
4 strike.
5 Q. It's just after that --
6 A. I'm with you. I'm with you. I'm
7 with you.
8 Q. Okay?
9 A. Okay. Yeah, after beginning work.
10 Q. One of them reported that he
11 suspected the Cinna butter flavoring to be a
12 cause. Do you see that?
13 MR. MACE: Objection. Move to
14 strike.
15 A. Yes, two --
16 Q. Two other suspected cases of
17 bronchiolitis obliterans occurred in smokers who
18 worked in the mixing facility. Another cluster
19 of cases of bronchiolitis obliterans occurred in
20 workers in a flavoring manufacturing plant. Do
21 you see that?
22 MR. MACE: Objection. Move to
23 strike.
24 A. Yes.
0040
1 Q. And if you look back at that
2 reference it's to Dr. Lockey's report of
3 bronchiolitis obliterans in your plant, that is,
4 the Tastemaker plant. Do you see that? 19.
5 A. I see the Lockey's report doesn't
6 mention Tastemaker in -- in this report, though,
7 but I do see the reference to Dr. Lockey.
8 Q. Now back to FEMA. I want to hand
9 you what we're going to mark as Exhibit 3.
10 (Exhibit 3 was marked for
11 identification.)
12 MR. MACE: Just leave them there.
13 A. Okay. Are we finished with this
14 other document here?
15 Q. For the time being, yes, sir.
16 A. Okay.
17 Q. Now this is another exhibit that
18 bears your name at the top from The Roberts
19 Group, am I right?
20 MR. MACE: Objection.
21 A. It shows that it was sent to my
22 fax.
23 Q. And it's dated October of 2001, am
24 I right, both the fax and the internal date on
0041
1 the document?
2 A. Yes.
3 Q. It says, our industry is committed
4 to the safety -- I'm reading down now the one,
5 two, three, four, fourth paragraph, am I right?
6 A. Uh-huh.
7 Q. It says, our industry is committed
8 to the safety of our employees as well as those
9 working at customer facilities. Am I right?
10 MR. MACE: Objection, move to
11 strike.
12 A. That's what it says.
13 Q. And customer facilities include
14 people that buy flavors from you, am I correct?
15 MR. MACE: Objection.
16 A. That's your -- your choice of
17 wording.
18 Q. No, it's true, isn't it, your
19 customers buy flavors from you?
20 A. I don't -- I can't speak on behalf
21 of the industry, though, is what I'm -- the
22 point I'm making here.
23 Q. Well, I'm asking you.
24 A. I'm --
0042
1 Q. When FEMA speaks it's speaking on
2 behalf of the industry of which you are a
3 member, am I right?
4 MR. MACE: Objection.
5 A. FEMA is a trade association. It
6 doesn't -- can't speak on behalf of the industry
7 per se. The companies have to represent their
8 own positions. But it definitely will, you
9 know, it's a good communication vehicle.
10 Q. It says, our industry --
11 A. Uh-huh.
12 Q. -- is committed to the safety of
13 our employees as well as those working at
14 customer facilities. FEMA doesn't have any
15 customers, do they?
16 A. That's correct. They do not.
17 Well, they do, they do, but they're trade
18 association customers.
19 Q. But they're talking about your
20 customers now, aren't they, in that paragraph?
21 A. In this sentence that's the way I
22 would read that, yes.
23 Q. Okay. And it says, our industry is
24 committed to the safety of our employees as well
0043
1 as those working at customer facilities. Was
2 that a true statement --
3 MR. MACE: Objection.
4 Q. -- from the point of view of
5 Givaudan?
6 MR. MACE: Objection. Move to
7 strike.
8 A. From the point of view of Givaudan
9 that is not a true statement.
10 Q. So Givaudan did not have any
11 concerns about the safety of their customers'
12 employees; is that true?
13 MR. MACE: Objection.
14 A. I'm concerned about the safety of
15 our employees.
16 Q. So you had no concern about the
17 safety of your customers' employees; is that
18 what you're telling this jury?
19 MR. MACE: Objection.
20 A. What I'm saying is that's a
21 responsibility of their employer. We're
22 responsible to our employees. They're
23 responsible to their employees in providing a
24 safe workplace.
0044
1 Q. Mr. Davis --
2 A. Yes.
3 Q. -- are you telling this jury that
4 you had no concerns about the safety of your
5 customers' employees?
6 MR. MACE: Objection.
7 A. I'm -- I, personally, part of the
8 company, our responsibility is to our employees.
9 We know our processes, we know our facilities,
10 we know the materials that we work with. We're
11 in a position to be able to ensure the safety of
12 our employees. We don't know, though, as it
13 relates to our customers. Our customers have to
14 understand their processes, their plant, their
15 product and the materials they work with. It's
16 their responsibility to their employees. It's
17 not our responsibility to their employees. Our
18 job is to make sure we provide them with
19 adequate information, which we do.
20 Q. I know, Mr. Davis, that it's your
21 belief that you have no responsibilities to your
22 customers' employees, so when you received this
23 memo of the organization that you were president
24 of did you call up Mr. Roberts and say, what do
0045
1 you mean that we have responsibilities to the
2 employees of our customers?
3 MR. MACE: Objection to form.
4 Q. Did you tell him that?
5 MR. MACE: Objection, form,
6 objection, argumentative, objection, compound.
7 A. I do not remember reading this
8 document, to answer your question.
9 Q. Did he send it to you in error?
10 MR. MACE: Objection.
11 A. I don't think he sent it to me in
12 error. He sent it to my fax number, it came to
13 my office. I don't recall reading the document.
14 Q. Well, I mean, do you think you
15 didn't read it?
16 A. I don't remember whether I read it
17 or did not read it. I do not remember.
18 Q. So you were in the habit of
19 receiving documents from the director of the
20 organization of which you were president who, in
21 public, was purporting to speak on your behalf
22 about your responsibilities and you don't know
23 whether you read this or not?
24 MR. MACE: Objection,
0046
1 argumentative. Objection to form, objection,
2 compound.
3 A. He really was not speaking on my
4 behalf. He was speaking on behalf of FEMA. I
5 do not -- I'm not responsible to craft the
6 documents that are written that are then
7 distributed throughout, you know, the globe or
8 to other industry, other companies. I mean,
9 that's not my responsibility.
10 Q. You were president, weren't you?
11 MR. MACE: Objection.
12 A. I was president, yes. It's an --
13 it's an administrative function.
14 Q. Were you also not responsible, as
15 president of that company, FEMA, of that trade
16 organization, for what they did --
17 MR. MACE: Objection.
18 Q. -- even though you were president?
19 A. I'm not responsible for what they
20 did at the end of the day. I'm -- it's an
21 administrative function. I think it's important
22 to understand precisely what that responsibility
23 is. So it's a trade association of member
24 companies.
0047
1 Q. Yes. And you were president of it?
2 A. I was president of it at the time
3 period we're talking about, yes. I've already
4 said that.
5 Q. So, once again, you're not
6 responsible for what FEMA says either, right --
7 MR. MACE: Objection.
8 Q. -- even though you're the
9 president?
10 A. I was president during that one
11 year period and I'm not responsible for the
12 wording of every document that is published
13 under the FEMA name at the period of time that I
14 was president, neither of any other presidents
15 before or after. The absolute volume of paper
16 that is generated by FEMA is immense. It will
17 stack up three feet tall across this table.
18 There's no way that I can feel I'm responsible
19 to read every single document that they -- that
20 they distribute to the membership, and remember
21 that we said that these are distributed to the
22 official representatives, right, but the
23 official representative list, you know, might be
24 rather lengthy and there's someone within each
0048
1 -- within our company that is responsible as the
2 FEMA representative. That was not me.
3 Q. But you're not trying to suggest to
4 this jury that this was not an issue that was
5 vitally important to Givaudan, are you --
6 MR. MACE: Objection,
7 characterization.
8 Q. -- in 2001?
9 MR. MACE: Objection,
10 characterization.
11 A. Which issue? The situation in --
12 Q. Workers working with flavoring
13 getting bronchiolitis obliterans?
14 A. In -- you're talking about the
15 Jasper plant now, yes?
16 Q. I'm talking about -- I'm talking
17 about the issue, in general.
18 MR. MACE: Objection.
19 A. Well, this is a very specific
20 issue, though, yes?
21 Q. Well, I -- I don't know. We'll
22 talk about that in a minute because the fact is,
23 is that your company, whether it was called
24 Tastemaker or Givaudan, had been trying to cover
0049
1 this up for over a decade --
2 MR. MACE: Objection.
3 Q. -- isn't that true?
4 MR. MACE: Objection. Move to
5 strike.
6 A. We've never covered up one item
7 ever.
8 Q. Well --
9 A. I feel very strongly about that,
10 that we've always worked in the best interest of
11 our employees from the very beginning of the
12 first understanding there were any issues. This
13 does not -- this Jasper plant has, you know, is
14 not a -- it's just a one -- it's a situation
15 that did not affect Givaudan in any way.
16 Q. Well, do you know why it is that
17 they cited your experience in the paper put out
18 by NIOSH as being supportive of the same disease
19 process --
20 MR. MACE: Object.
21 Q. -- from the same type of -- of
22 chemical process?
23 MR. MACE: Objection to form,
24 objection, calls for speculation.
0050
1 A. My experience --
2 MR. MACE: You really need to --
3 A. I'm sorry.
4 MR. MACE: -- let me make
5 objections so we're not talking over each other.
6 Thank you. Go ahead.
7 A. I'm sorry. When you said my
8 experience I'm not sure what you meant. They
9 didn't refer to my experience that I'm aware of
10 so I'm --
11 Q. Well, in -- in the paper do you see
12 where they cited Dr. Lockey's report in the
13 Exhibit 3, I think it was, that we put away a
14 minute ago?
15 A. No. I have 3 in front of me and I
16 don't -- it doesn't reference Lockey.
17 Q. I'm sorry. The -- the New England
18 Journal of Medicine article. What was that, 2?
19 A. That's number 2, yes.
20 Q. Okay. Do you remember that they
21 cited Dr. Lockey's report in support of their
22 conclusion?
23 A. So I can put it in context I need
24 to understand your question now. We're kind of
0051
1 back going and forth so it would help me if you
2 keep it in perspective for me, so what's the
3 question?
4 Q. All right. I do want you to keep
5 it in perspective.
6 A. Okay.
7 Q. Look at -- look at the -- at the
8 last page where they're talking about that their
9 hypothesis was supported. Do you remember that
10 discussion?
11 A. What page you on?
12 Q. I'm on page --
13 A. Thirteen is my last page.
14 Q. I'm on page 337 at the bottom of
15 the page.
16 A. Okay.
17 Q. References?
18 A. Okay. Here we go. Got it now,
19 okay, yeah, now say it again.
20 Q. It says -- it says, another cluster
21 of cases of bronchiolitis obliterans occurred in
22 workers in a flavoring manufacturing plant. Do
23 you see that?
24 A. Yes.
0052
1 MR. MACE: Objection. Move to
2 strike.
3 Q. Then they cited Dr. Lockey's
4 report. Do you now remember that?
5 A. Nineteen does reference Dr.
6 Lockey's report, right, we said that already.
7 Q. Okay. Now let's go back to --
8 let's go back to FEMA for a minute. Following
9 the publication of this article another wave of
10 publicity occurred -- when I say this article
11 I'm talking about the New England Journal of
12 Medicine Article, which is Exhibit 2 -- another
13 wave of publicity occurred including a lengthy
14 article on the front page of USA Today. Do you
15 remember that?
16 MR. MACE: Objection. Move to
17 strike.
18 MR. WOODSIDE: The record should
19 reflect that Mr. McClain has that one memorized.
20 Q. Well, not really.
21 A. You asking me if I recall a
22 particular article? I don't know which article
23 you're referring but I don't recall a particular
24 article. I do recall that there was a -- a
0053
1 reasonable amount of publicity in a relatively
2 short period of time. That's what I recall. I
3 don't remember, as I said earlier, specifically
4 what publications they were in but there
5 definitely were articles.
6 Q. Let's look at Exhibit 5 --
7 A. Okay.
8 Q. -- see if we can refresh your
9 recollection on that.
10 A. May I make one statement real
11 quick?
12 Q. Sure.
13 A. I have never seen this, just so you
14 know, this New England Journal of Medicine
15 article before, before today. So that's for
16 your information.
17 Q. Even though you were president of
18 FEMA in 2001?
19 A. Even though I was president of
20 FEMA. Medical journals are -- are beyond my
21 skill set, all right. I'm not a technical
22 expert so this is certainly not something that I
23 would have read.
24 MR. WOODSIDE: Can I ask a
0054
1 question? Did you skip 4?
2 MR. McCLAIN: I don't know. Did I?
3 MR. MACE: I think so.
4 Q. I did skip 4?
5 A. Yeah. Well, we got a 3 and this is
6 5 now.
7 Q. I'm sorry. Can we remark that as
8 -- as 4 --
9 MR. MACE: Sure.
10 (Exhibit 4 was marked for
11 identification.)
12 Q. -- so that we're not skipping an
13 exhibit? Okay. This is Exhibit 4. We've
14 remarked it. Mr. Davis, this was a document
15 that was produced by your counsel to us. And if
16 you'll look back at this document, and they're
17 numbered in Bates stamp numbers and so it was
18 our assumption, when they were stapled together
19 and given to us, that that's how they were found
20 in your files, but maybe counsel shuffled them,
21 I don't know, but I'm making an assumption.
22 MR. MACE: Objection. Move to
23 strike.
24 Q. If you'll look back here at the --
0055
1 at the fax e-mails in the middle of the page.
2 MR. MACE: What -- what page are
3 you on?
4 A. What page?
5 Q. In the middle of the document,
6 Exhibit 5. You see where the e-mails are?
7 A. Can you give me a -- a page those
8 are on?
9 Q. At the bottom it's 1476.
10 A. Okay. I see that.
11 Q. It says, important communication
12 from Mike Davis.
13 A. Okay.
14 Q. And it says, to FLMC members. What
15 was the FLMC?
16 A. That was the management committee.
17 Q. Okay. And that's your committee?
18 A. That's my management committee,
19 yes.
20 Q. Important communication from Mike
21 Davis?
22 A. Okay.
23 Q. Talking about we have been notified
24 that an article will appear in tomorrow's USA
0056
1 Today concerning diacetyl following an
2 investigation by NIOSH. You will recall an
3 article in the Wall Street Journal sometime ago
4 on the same subject. Apparently the USA Today
5 article will be similar. It shouldn't name
6 Givaudan but will -- but likely will name IFF
7 and could imply other companies, flavor
8 companies. If you receive calls regarding the
9 article, itself, they should be referenced --
10 referred in the following manner. It -- in the
11 US calls should be referred to Glenn Roberts --
12 A. Uh-huh.
13 Q. -- executive director of FEMA. It
14 is important to, as much as possible, have a
15 single spokesman for the global industry. Do
16 you see that?
17 MR. MACE: Objection, move to
18 strike.
19 A. Yes.
20 Q. So now does it refresh your
21 recollection that Mr. Roberts, he was putting
22 out these press releases on this subject, was
23 empowered to speak on behalf of Givaudan on this
24 issue --
0057
1 MR. MACE: Objection.
2 Q. -- by you?
3 MR. MACE: Objection.
4 A. He was not empowered by me. He was
5 speaking, in this particular incident, on this
6 article, okay, the decision had been taken, and
7 I don't even remember the process we went
8 through at arriving at that decision, but
9 clearly we agreed that Glenn would be the person
10 to respond to questions about this article.
11 And, once again, this was not, you know, related
12 to Givaudan. It was informational for -- for
13 our organization.
14 Q. And that was your direction?
15 A. But you never know where an
16 article, you know, where -- who's going to pick
17 up the phone and give you a call. So this is --
18 we do -- whenever we expect a communication from
19 the media we have a standard protocol and this
20 is only informing our -- our management group of
21 how we would handle that communication. This --
22 we do this with every -- any time that we expect
23 to have some communication from the outside.
24 Q. Look -- look at the -- look at his
0058
1 draft communication on the last page of this
2 fax, 1480. I said fax, it's a document. I
3 don't know whether it was faxed or not. There's
4 no fax number at the top.
5 A. Okay.
6 Q. Mr. Roberts, who was empowered on
7 this occasion to be your spokesman, says, we've
8 had a very small number of reported problems
9 among manufacturing workers in the flavoring
10 industry which were investigated very
11 thoroughly. Do you see that?
12 MR. MACE: Objection. Move to
13 strike.
14 A. What paragraph are you on?
15 Q. I'm on the second -- second full
16 paragraph.
17 A. We've had -- okay.
18 Q. We've had a very small number of
19 reported problems among manufacturing workers in
20 the flavoring industry which we're investigating
21 very thoroughly. Do you see that?
22 MR. MACE: Objection, move to
23 strike.
24 A. Yes.
0059
1 Q. It says, the first such case -- I'm
2 now skipping down to three more paragraphs in
3 the middle of the paragraph.
4 A. The first such case, okay.
5 Q. Yes. It says, under investigation
6 are preliminary reports -- I'm -- I'm reading
7 the whole paragraph now -- that seven
8 manufacturing employees out of several thousand
9 workers industrywide may have developed
10 respiratory problems while working at flavoring
11 -- flavor manufacturing facilities. You see
12 that?
13 MR. MACE: Objection. Move to
14 strike.
15 A. Yes.
16 Q. The first such case was reported to
17 FEMA in 1996 and the trade group soon thereafter
18 intensified its efforts to educate its members
19 on state of the art respiratory safety
20 practices. Do you see that?
21 MR. MACE: Objection, move to
22 strike.
23 A. Yes.
24 Q. Now those cases actually were all
0060
1 Givaudan cases, weren't they?
2 MR. MACE: Objection.
3 A. I'm not sure of that. It says, the
4 first cases were reported to FEMA in 1996 so I'm
5 not sure if there's other cases that were incorp
6 -- included in that number that he's referring
7 to or not.
8 Q. We're on Exhibit 6, are we not?
9 A. Four.
10 MR. MACE: You've marked four so
11 far, counsel.
12 MR. WOODSIDE: The next one in
13 order is 5, Mr. McClain.
14 Q. Let me show you what we've marked
15 as Exhibit 5.
16 A. Okay.
17 (Exhibit 5 was marked for
18 identification.)
19 Q. This is Exhibit 5. It was Exhibit
20 1 to Dr. Hochstrasser's deposition. You know
21 who Dr. Hochstrasser is, do you not?
22 A. Yes, I know John Hochstrasser.
23 Q. And who is he?
24 A. Well, John was a former employee of
0061
1 Tastemaker, responsible for EH&S function.
2 Q. EH&S means?
3 A. Environmental health and safety.
4 Q. And Dr. Hochstrasser, this letter
5 was to him. Listed below are the current or
6 past employees with a confirmed diagnosis of BO
7 and the one suspected case. Do you see those
8 individuals?
9 MR. MACE: Objection, move to
10 strike.
11 A. Sorry. Yes.
12 Q. And do you recognize that Cliff
13 Walker, M.S. McGee, Robin Gaskins, Ron Feldkamp,
14 Gary Shea and Walt Vaske were employees of
15 Tastemaker at one point or another?
16 A. I recognize most of the names on
17 the list, not all. But I will make -- if you
18 tell me this is from an internal Tastemaker
19 document then I will take your word for it that
20 those are all -- this is a Tastemaker document,
21 those are Tastemaker employees.
22 Q. And Joey Wallace was a Tastemaker
23 employee, true?
24 A. I believe so, yes.
0062
1 Q. And Janet -- Janice Irick was
2 also --
3 A. Yes.
4 Q. -- a Tastemaker employee?
5 MR. MACE: Objection.
6 Mischaracterization.
7 Q. And she was dead at the time of
8 this memo, apparently.
9 MR. MACE: Objection.
10 Q. It lists her as deceased.
11 A. She was a former -- she was
12 actually not a Tastemaker employee, she was a
13 employee at Fries & Fries.
14 Q. It might be appropriate, at this
15 point in time for our reference, let's talk
16 about the companies that -- that you have been
17 the president of in sequence of their operation
18 of your plant here in Cincinnati. All right?
19 A. Okay.
20 MR. CRICK: Thank you.
21 Q. At one point the plant was operated
22 by Malencrot Foods & Flavor Inc., is that
23 correct?
24 MR. MACE: Objection.
0063
1 A. Can you help me with where we're
2 going? Maybe we should start at the very
3 beginning, or do you want to jump in in the
4 middle, or where do you -- how do you want to
5 proceed with this?
6 Q. Well, the way I have it is that's
7 the first one I had. Was there one prior --
8 prior to Malencrot?
9 A. Let's start with Malencrot then.
10 Q. Okay. Malencrot -- as I have it
11 Malencrot Food & Flavor, Inc. operated the plant
12 at one point in time. Am I right?
13 A. Owned the plant, yes.
14 Q. Okay. Owned and operated the
15 plant?
16 A. Sure, uh-huh.
17 Q. And you were the president of that
18 company?
19 A. I'm not sure if I was general
20 manager or president, but yes.
21 Q. Okay. Approximately --
22 A. That's --
23 Q. -- in what dates?
24 A. I think Malencrot Food & Flavor was
0064
1 probably like '88, I'm going to guess, '89, '87,
2 someplace in that time frame.
3 Q. And then the company became Fries &
4 Fries, Inc., am I right?
5 A. No. I'm going to -- so that's
6 where the Fries & Fries -- Fries & Fries was the
7 operating company. That was the name that was
8 -- that was used in the marketplace. Old family
9 owned company that had been acquired by
10 Malencrot, right, so Malencrot Food & Flavor was
11 an umbrella under which we could add additional,
12 call them pillars, if we elected to do that. So
13 Malencrot had three umbrella companies and one
14 was flavor -- what does it say?
15 Q. Malencrot Food -- Malencrot Food &
16 Flavors, Inc.
17 A. Okay. So that's one umbrella and
18 there was a Malencrot Chemical or specialty
19 chemical, and then there was a Malencrot health
20 company.
21 Q. All right.
22 A. Okay.
23 Q. And Fries & Fries was simply --
24 A. Was the only company under that
0065
1 umbrella at the end of the day.
2 Q. Okay. And so it was really an
3 entity owned by Malencrot Food & Flavors, Inc.
4 but you operated as Fries & Fries the same
5 plant; is that correct?
6 A. One and only plant, or one and only
7 company of Fries & Fries.
8 Q. And you were president of Fries &
9 Fries?
10 A. General manager, I think. I don't
11 know if I ever had the president title at that
12 point. I just don't remember.
13 Q. And then Fries & Fries became
14 Tastemaker?
15 MR. MACE: Objection.
16 A. Fries & Fries didn't become
17 Tastemaker. Fries & Fries -- Tastemaker was a
18 joints venture company formed by the combination
19 of two flavoring companies which had been owned
20 by two separate parent companies, so each of
21 those companies retained a 50 percent ownership
22 of Tastemaker, and Tastemaker then, as I said,
23 was a joint venture company and so I was the
24 president of Tastemaker at the time of the
0066
1 formation, which was in 1992.
2 Q. All right. And then Tastemaker was
3 the entity that was purchased by Rohr Flavors,
4 is that correct, Rohr Chemical Company?
5 MR. MACE: Objection.
6 A. Yes. It's not Rohr, it's Roche.
7 Q. Roche?
8 A. Roche Pharmaceutical Company, as
9 I'm sure you're familiar with that.
10 Q. Roche Pharmaceutical. Givaudan was
11 a division of Roche?
12 MR. MACE: Objection.
13 A. I'll use that lightly, loosely,
14 yes. I'm not sure of the actual legal structure
15 but, yes, it was a flavor and fragrance division
16 owned by Roche.
17 Q. All right. And so you were
18 president of Tastemaker. You then were the head
19 of Givaudan Roche Flavors; is that correct?
20 A. No, that's not correct. So at the
21 time of the acquisition of Tastemaker there was
22 a Givaudan Flavor president and a Givaudan CEO
23 and a Givaudan Fragrance president. So I
24 reported to the Givaudan Flavor president.
0067
1 Q. Okay.
2 A. Okay.
3 Q. You -- you reported to a president?
4 A. Uh-huh.
5 Q. And what was your title at that
6 point in time?
7 A. I think like head of Americas, so
8 it would have been North and South America at
9 the time, or North and Latin America, however
10 you prefer.
11 Q. Still -- still in charge of the
12 Cincinnati plant, am I right?
13 MR. MACE: Objection.
14 A. Yes.
15 Q. And then, finally, the Givaudan
16 Flavors Corporation became the entity that owned
17 the former Malencrot, Fries & Fries, Tastemaker
18 plant?
19 A. I can't answer -- speak to the
20 legal structure.
21 Q. I'm not asking you to.
22 A. Okay. Sure. So --
23 Q. I'm talking about the practical
24 effect. That is true, isn't it?
0068
1 MR. MACE: Objection.
2 A. Practically speaking Givaudan is
3 the operating entity, Givaudan Flavors.
4 Q. And you are now head of North
5 American Flavors?
6 A. Well, in 1997 at the time of the
7 acquisition I was. About 1999 I'm giving, you
8 know, give or take, it could have been '98 but I
9 think late '98, middle '99 I became the head of
10 Givaudan Flavors globally.
11 Q. All right.
12 A. So at the time of the acquisition I
13 was not, I had responsibility for the Americas.
14 And then prior to the year 2000 I became the
15 head of Givaudan Flavors, which is a global
16 responsibility so no longer having
17 responsibility for any particular region but
18 more for the global business instead.
19 Q. So bringing us back, then, to
20 Exhibit 5 that we were on.
21 A. Okay.
22 Q. All of these people had been
23 employed manufacturing flavors at -- in
24 Cincinnati when this issue arose in about 1992;
0069
1 is that true?
2 MR. MACE: Objection.
3 A. To the best of my knowledge that's
4 true.
5 Q. So going back to the document that
6 we marked as Exhibit 4, which was the one
7 previous --
8 A. Uh-huh.
9 Q. -- piecing these together it says
10 --
11 A. Which page you on?
12 Q. I'm on the page -- the e-mails.
13 A. Okay. I've got --
14 MR. MACE: Bates number would be
15 better.
16 Q. Exhibit 1480.
17 A. 1480. Okay. I don't think this is
18 an e-mail, though, is it? Doesn't look like an
19 e-mail attached but maybe it is.
20 Q. It's -- it's a draft, it's a draft
21 on the press release previously made by -- by
22 Mr. -- your e-mail is in the middle of this
23 document, I'm sorry. This is the press release
24 that apparently was attached.
0070
1 A. I'm not sure --
2 MR. MACE: Objection.
3 A. -- I'm not sure the source of this
4 and I don't think I've ever seen it, but okay.
5 Q. It says, in this release by Mr.
6 Roberts that we previously saw --
7 A. Uh-huh.
8 Q. -- was endorsed by you --
9 MR. MACE: Objection.
10 Q. -- as being the spokesman for the
11 industry on this issue at the time, correct?
12 MR. MACE: Objection.
13 A. Glenn Roberts was -- was designated
14 as the person to respond to media inquiries. He
15 doesn't speak for any companies. He's not
16 empowered to do that, he's an executive director
17 of a trade association. He was just the person
18 that was communicating to -- on behalf of the
19 industry to -- to inquiries. That was his --
20 that was his responsibility.
21 Q. And you approved of that role for
22 him, am I right, by your e-mail that we saw
23 previously identified?
24 A. I didn't -- that would be an
0071
1 incorrect characterization. By my e-mail you
2 first mentioned a moment ago that does not have
3 any relationship to the decision taken that
4 Glenn would communicate to the -- to the media.
5 That would have been a decision taken by the
6 FEMA board of which I was a member at that time.
7 The e-mail was a communication from me to my
8 staff just letting him know that there was going
9 to be an article that would appear in the
10 newspaper, right, and that they should -- as I
11 said before, we always have a standard protocol
12 in terms of how do we respond to media inquiries
13 and this is the way they were communicated to --
14 from me and how to handle those inquiries if
15 they received any inquiries, which I don't even
16 believe we did, but I don't know that.
17 Q. It says, if you receive calls
18 regarding the article, itself, they should be
19 referred in the following manner.
20 A. Right.
21 Q. In the US calls should be referred
22 to Glenn Roberts, executive director of FEMA.
23 That's what your memo says, true?
24 A. Says actually for -- says both in
0072
1 US calls and outside the US calls, all calls are
2 referred to, it's in that paragraph, to Glenn
3 Roberts, yes.
4 Q. And on the back of this document,
5 page one, Bates number 1480, is a press release
6 from Glenn Roberts, is it not?
7 A. Let's see. 1480 is -- it's not a
8 press release. It says draft document and it
9 says FEMA stand on the top of it. So I don't
10 think that's a press release.
11 Q. Let me ask you this.
12 A. Uh-huh.
13 Q. It says, under investigation are
14 preliminary reports that seven manufacturing
15 employees out of several thousand workers
16 industrywide may have developed respiratory
17 problems while working at a flavor -- flavor
18 manufacturing facility. Right?
19 MR. MACE: Objection. Move to
20 strike.
21 A. It says that, yes.
22 Q. And if you look at Exhibit 5 --
23 A. Yes.
24 Q. -- you already had five -- you
0073
1 already had nine, isn't that true?
2 MR. MACE: Objection.
3 A. Just a comment I made a moment ago
4 is that in 1996 the cases reported to FEMA were
5 from Tastemaker. I don't -- what I said before,
6 they did not know the number. You've produced
7 Exhibit 5. I'm not sure of the timelines of
8 these two documents and where his number of
9 seven comes from, but clearly this is a document
10 that is -- I shouldn't say clearly -- but this
11 is a list of employees that were former either
12 Tastemaker or Fries & Fries employees who were
13 affected with -- with lung, severe lung
14 problems.
15 Q. And --
16 A. Does that answer the question
17 fairly?
18 Q. I think so.
19 A. Okay.
20 Q. Here's my point. Do you know
21 whether, even today, Givaudan has reported all
22 nine of these cases to FEMA or anyone else in
23 the world?
24 MR. MACE: Objection,
0074
1 mischaracterization. Objection to form.
2 A. I believe all these predated
3 Givaudan by a substantial time period so I would
4 be surprised if Givaudan actually would have
5 reported these. I would have expected that
6 these would have been reported by -- by
7 Tastemaker at the time.
8 Q. Well, you were the president. Were
9 they reported by Tastemaker or not?
10 MR. MACE: Objection.
11 A. I'm sorry.
12 MR. MACE: Go ahead.
13 A. I don't know if this document that
14 you have in your hand, that you presented to me
15 as Exhibit 5, was commun -- that these names
16 were communicated to -- to FEMA or anyone else.
17 Clearly, clearly, the existing -- existence of
18 concerns were brought to the forefront or
19 brought to the industry in 1996, clearly. And
20 so whether the number at that point was reported
21 as seven or eight or six I don't remember. But
22 there was -- but whether it was reported as
23 seven or eight or six would certainly have not
24 been withholding information. Would have been
0075
1 reporting accurate information.
2 Q. Well, are you aware that -- that
3 Tastemaker refused to allow FEMA to tell anyone
4 how many or where cases of bronchiolitis
5 obliterans had arisen in 1996?
6 MR. MACE: Objection to form,
7 objection, compound.
8 A. My first comment is that it seems
9 to me that, based on this document you handed me
10 a moment ago, which is part of Exhibit 4, that
11 FEMA did indicate that there were manufacturing
12 employees, so obviously they did communicate
13 that information.
14 When we communicated this
15 information to FEMA we did it on a confidential
16 basis, to answer your question, I believe.
17 Q. Yes. And you communicated it with
18 employees of Tastemaker and with Dr. Lockey,
19 isn't that true?
20 MR. MACE: Objection to form.
21 A. When you -- you mean -- what do you
22 mean, communicated? Help me.
23 Q. They had a meeting with Mr.
24 Halligan, who was a employee of FEMA in 1996,
0076
1 didn't they?
2 MR. MACE: They, whom?
3 Q. Dr. Lockey and employees of
4 Givaudan.
5 MR. MACE: Okay. Well, objection.
6 A. I had a meeting with John Halligan
7 in 1996 so I would say yes to your answer -- to
8 your question.
9 Q. All right. Were you present at the
10 meeting at which Dr. Lockey attended?
11 A. No, I was not.
12 Q. Are you aware that a separate
13 meeting --
14 A. But I didn't know that Dr. Lockey
15 actually did until just this week but -- to
16 answer your question.
17 Q. So you have become aware that Dr.
18 Lockey, in fact, had a meeting with FEMA
19 employees in 1996?
20 A. Yes.
21 Q. And you are aware, are you not,
22 that he recommended that all FEMA members be
23 advised to have surveys of their plants to
24 detect whether or not similar cases were arising
0077
1 in their plants?
2 MR. MACE: Objection,
3 mischaracterization. Objection to form.
4 A. I have no idea what -- what Lockey
5 would have recommended during that meeting with
6 FEMA. I know that we, when I first went to FEMA
7 in 1976, went with the intent --
8 MR. WOODSIDE: Excuse me. I think
9 you said '76.
10 A. 1996. Thank you very much. That
11 when I went to -- to FEMA in 199 -- 1996 it was
12 the intent to communicate that we had a severe
13 -- that we had several employees with severe
14 respiratory problems and we wanted to make sure
15 that this was not, you know, common to the
16 industry. Sometimes something shows up one --
17 one in one part of the country and one someplace
18 else and by themselves you don't identify that
19 as an issue. So what we wanted to do was to
20 make sure there's an understanding that we had a
21 severe situation and wanted to understand
22 whether or not anyone else in the industry, in
23 fact, did have -- experienced any similar
24 situation. And what came back from that was,
0078
1 after a very thorough part on the part of FEMA
2 going out and talking to other member companies,
3 came back and said no one else has a similar
4 situation to which you have today. It was our
5 intent to make this thing as visible as possible
6 to the industry because, once again, we were
7 very concerned about our employees. Just kind
8 of an unknown thing so we wanted to understand
9 that better.
10 Q. Well, in -- in truth you had hired
11 a previous expert, Dr. Brooks, isn't that right,
12 Stuart Brooks?
13 A. When you say in truth I'm not sure
14 what you mean.
15 Q. Doctor -- Dr. Brooks had been hired
16 previously, isn't that right, Stuart Brooks?
17 A. I'm not sure what previously is
18 from a time frame. But we were -- we brought in
19 a number of experts to work with our in-house,
20 you know, people to try to understand the
21 situation as well as we possibly could. So I
22 think we took all the right steps in terms of,
23 you know, putting together the right people
24 internally and supplementing that with the right
0079
1 experts externally to try to understand this
2 situation. And then we took that to FEMA to try
3 to make sure that we communicated this and to
4 the industry at large.
5 Q. I move to strike that answer. It's
6 not responsive to my question.
7 Before Dr. Lockey was hired you
8 hired Dr. Brooks; isn't that true?
9 A. I -- I do not know the event, the
10 time events. Dr. Brooks was under -- was also
11 one of the experts that we used along with Dr.
12 Lockey. I do not remember the sequence of
13 event.
14 Q. And he was under a confidentiality
15 agreement also, wasn't he?
16 A. He, as are all of any outside
17 contractor that we work with in any area are
18 always under a standard confidentiality
19 agreement, yes.
20 Q. And after he examined the first
21 employees who had been diagnosed with
22 bronchiolitis obliterans he recommended that you
23 sample in all plants that Tastemaker had around
24 the country; isn't that true?
0080
1 MR. MACE: Objection.
2 A. I do not. I do not know what his
3 recommendation was specifically.
4 Q. And then they fired him --
5 MR. MACE: Objection.
6 Q. -- didn't you?
7 MR. MACE: Objection.
8 A. I don't know the answer to that but
9 I will tell you that every recommendation that
10 we received from every expert that we worked
11 with was implemented, period.
12 Q. Was there a survey conducted of
13 every plant that Tastemaker owned?
14 A. To the best of my knowledge, yes.
15 Q. All right. And where are the
16 results of those surveys of those plants?
17 A. I have no idea. I don't know how
18 the survey was conducted. This is too far back
19 in the past. I'm sorry.
20 Q. There would be documents supporting
21 such an assertion, isn't that true, if, in fact,
22 surveys were conducted of those other plants?
23 A. I can't answer whether there's any
24 documentation. I don't know how that was
0081
1 handled.
2 Q. Do you know whether any
3 documentation exists?
4 A. I do not know that. That would
5 have been conducted by John Hochstrasser at the
6 time and I don't know how -- what process he
7 went through to do that.
8 Q. You do know that Dr. Brooks was
9 fired?
10 MR. MACE: Objection.
11 A. I don't know that Dr. Brooks was
12 fired. First of all, I don't know how you fire
13 a -- we'll call him a consultant. I don't know
14 how you do that. You usually have an agreement
15 with them for some period of time.
16 Q. Well, you know he was terminated,
17 don't you?
18 MR. MACE: Objection.
19 A. I don't know that he was
20 terminated, no. I know that he was one of
21 several experts, external experts that we used.
22 Q. Let's look -- let's look at Exhibit
23 6.
24 (Exhibit 6 was marked for
0082
1 identification.)
2 A. Okay. Since I'm wired could I have
3 a little bit more water somebody?
4 Q. Would you like a break?
5 A. I'm fine. I would like some water.
6 I just -- I drink a lot of water during the
7 course of a day so -- and you're making me talk
8 a lot so --
9 Q. I'm not sure I'm making you talk a
10 lot but you are talking a lot.
11 A. Ask a lot of questions.
12 Q. Here.
13 A. So can I put away Exhibit 4 now,
14 for now?
15 Q. Yes.
16 A. Okay. Thank you.
17 Q. This is Dr. Brooks' last bill, this
18 is Exhibit 6, and it was Exhibit 66 to Mr.
19 Hochstrasser's deposition.
20 A. Okay.
21 Q. Do you see in the first paragraph
22 at the end that the relationship was terminated?
23 MR. MACE: Objection. Move to
24 strike.
0083
1 A. Yes, I do see that. It's, however,
2 before the termination.
3 Q. And do you see, at the -- in the
4 middle of the -- well, the top third of the
5 paragraph he was -- he signed a confidentiality
6 agreement --
7 MR. MACE: Objection. Move to
8 strike.
9 Q. -- on March 29th of 1994?
10 A. Yes.
11 Q. All right. Now --
12 MR. MACE: Rule of completeness, it
13 says, Tastemaker wanted to use professionals at
14 the University of Cincinnati.
15 Q. And Dr. Lockey, too, was put under
16 a confidentiality agreement as we've already
17 seen; isn't that right?
18 A. I'm sorry. Say again. I was just
19 looking at the document. I've never seen it
20 before, but go ahead. Please restate the
21 question.
22 Q. And, again, Dr. Lockey, who was
23 from the University of Cincinnati, to follow up
24 on Mr. Mace's point, was also placed under a
0084
1 confidentiality agreement?
2 A. As are all external consultants and
3 experts that we use, yes. I'm sure -- I -- I
4 don't say that because I know, but I know that
5 we do this with all our people so I'm assuming
6 that they are.
7 Q. And you know that Dr. Lockey
8 recommended to FEMA, in the company of your
9 employees, that FEMA recommend that all flavor
10 manufacturing plants be surveyed to see whether
11 or not any cases of bronchiolitis obliterans
12 were occurring in other flavoring plants --
13 MR. MACE: Objection.
14 Mischaracterization.
15 Q. -- don't you?
16 MR. MACE: Objection to form.
17 A. No. A moment ago I already
18 answered that as no, I did not know that that
19 was a recommendation he made. I told you that
20 was a recommendation that we made is that we
21 should contact the rest of the industry. I
22 don't know what Dr. -- what Dr. Lockey told
23 FEMA. I was not at the meeting.
24 Q. I want to -- I want to address a
0085
1 point that you raised a minute ago.
2 A. Okay.
3 Q. Are you aware that IFF -- you're --
4 you're familiar with IFF?
5 A. Yes.
6 Q. They're a competitor of yours?
7 A. They're a flavor and -- flavor and
8 fragrance manufacturer, as are we.
9 Q. So they're a competitor of yours?
10 A. That's fair.
11 Q. And they're also members of FEMA,
12 am I right?
13 A. As far as I know they're still
14 members of FEMA. They were in the past.
15 Q. And you have served on the Board of
16 Directors of FEMA with representatives of IFF?
17 MR. MACE: Objection to form. It's
18 Board of Governors, not directors.
19 A. During the course of my time on the
20 board there have been also representatives from
21 IFF on the board.
22 Q. And IFF has had presidents of FEMA;
23 isn't that true?
24 A. That's correct. Uh-huh.
0086
1 Q. Are you aware that FEMA claims that
2 they didn't have any understanding that this
3 issue of bronchiolitis obliterans could affect
4 workers in their plants --
5 MR. MACE: Objection.
6 Q. -- based on -- based on their
7 review of the situation?
8 A. I cannot speak on behalf of IFF. I
9 have no idea what their internal discussions
10 might have been or how they reacted. I don't
11 know this.
12 Q. Did you ever communicate with IFF
13 specifically and say, hey, we're having a very
14 serious problem with bronchiolitis obliterans
15 from working with flavors. Have you fellows
16 looked at your plants?
17 MR. MACE: Objection.
18 A. Two things. One is I've never -- I
19 have never had a discussion with anybody at IFF
20 regarding the issues that we had within our
21 plant with flavoring ingredients. We do not
22 know what was causative factors here. All we
23 know is that we had some severe respiratory
24 irritations in our plants and we don't know what
0087
1 the factors were but we never had a direct
2 discussion with IFF.
3 Q. They weren't just respiratory
4 irritations, it was bronchiolitis obliterans;
5 isn't that true?
6 A. That's what the -- what the tests
7 that some of the individuals have undergone have
8 shown, yes.
9 Q. And regardless of what you say
10 about your intention in the industry what is
11 very clear is that you never, ever warned your
12 customers that using flavors could cause
13 bronchiolitis obliterans, did you?
14 MR. MACE: Objection. Form.
15 Objection, assumptions.
16 A. That's absolutely a correct
17 statement. We've never had, ever, a reason to
18 believe that there was any reason that we should
19 communicate that to our customers. Never
20 crossed anyone's mind ever.
21 Q. Even after 2001 when an article
22 appeared in the Wall Street Journal that cited
23 your experience in your plant and support for
24 their conclusion that butter flavor was causing
0088
1 bronchiolitis obliterans; isn't that true?
2 MR. MACE: Objection,
3 argumentative, objection to form, objection,
4 mischaracterization.
5 A. As I think I said earlier I do not
6 believe that any product that we offer to our
7 customers are in -- we would never offer a
8 product to our customers that in any way we felt
9 could not be handled safely period.
10 Q. All right. Let's -- let's take a
11 break.
12 MR. GRUBB: We're off the record.
13 (Break taken.)
14 MR. GRUBB: We're back on the
15 record, sir.
16 Q. Just to -- just to close the hoop
17 on that last subject matter. You never have,
18 even to this day, placed a warning on your
19 butter flavoring products, have you?
20 A. We -- we label all of our products
21 as we're required to label. So we have product
22 labels and then we provide MSDSs to our
23 customers. We do that with all of our products.
24 So they're all labeled properly.
0089
1 Q. Is there a warning on the products?
2 A. I cannot tell you what the specific
3 -- each, you know, product has its own label so
4 I, without having those in front of me, I
5 couldn't tell you, but all of our products are
6 labeled appropriately.
7 Q. Well, are you aware that IFF put
8 labels on its butter flavoring products
9 immediately after being -- after having that
10 recommendation be made by NIOSH to them that
11 said warning, flavoring ingredients can cause
12 severe lung injury, or words to that effect?
13 MR. MACE: Objection.
14 MR. WOODSIDE: Object.
15 A. I'm not sure what IFF has got on
16 their labels. I haven't seen their labels.
17 Q. And you haven't put a similar
18 warning on your products, have you?
19 A. We -- I don't know what their
20 labels say so I can't tell you whether our
21 labels are similar in terms of what we say
22 versus what they have on their labels.
23 Q. It is true that IFF has stopped
24 making butter -- butter flavor products; isn't
0090
1 that right?
2 MR. MACE: Objection.
3 MR. WOODSIDE: Objection.
4 A. I can't answer that. I don't know
5 what decisions they've taken.
6 Q. And you've taken all of their
7 customers --
8 MR. MACE: Objection. Objection.
9 MR. WOODSIDE: Object.
10 Q. -- that used to buy --
11 A. They're not in the butter business,
12 they don't --
13 Q. -- that buy -- used to buy butter
14 flavoring from IFF now are buying it from you?
15 MR. MACE: Objection.
16 A. I'm sorry. I'd prefer not to talk
17 about our business in terms of our product
18 sales. Just, you know, unless it's --
19 Q. I'm not talking about anything in
20 specific. Are you aware that that, in fact, is
21 true?
22 MR. MACE: Objection.
23 A. I know we continue to sell butter
24 flavors today because we believe those are still
0091
1 our safe products.
2 Q. You're aware that there is a
3 company here in Cincinnati called Wild Flavors,
4 are you not?
5 MR. MACE: Objection.
6 A. They're in northern Kentucky and I
7 am aware of them, yes.
8 Q. And you're aware, are you not, that
9 they developed a diacetyl free butter flavor --
10 MR. MACE: Objection.
11 Q. -- in the wake of all the publicity
12 surrounding the bronchiolitis obliterans cases
13 at the Jasper popcorn plant?
14 MR. WOODSIDE: Object to the form
15 of the question.
16 Q. Are you aware of that?
17 A. I'm not aware of that.
18 Q. Well, let's look at some of your
19 own knowledge at the time. We talked about
20 Janice Irick's death. Do you recall that --
21 MR. MACE: Objection.
22 Q. -- that you and I discussed it?
23 MR. MACE: Objection.
24 A. Janet was a former employee of ours
0092
1 and she did pass away. She was a Tastemaker --
2 she was a Fries & Fries employee and at some
3 point she wasn't able to come to work any longer
4 and she passed away, you know, and that's -- I'm
5 very well aware of that.
6 Q. Let me show you Exhibit 7.
7 (Exhibit 7 was marked for
8 identification.)
9 A. She was married to one of the
10 people in our -- in our plant. Okay.
11 Q. She was married to someone in your
12 plant or she worked in your plant?
13 MR. CRICK: Married.
14 A. Both.
15 Q. Who was she married to?
16 A. Don't remember name. Too long ago.
17 Q. Mr. Scroggins?
18 A. That's correct. Steve Scroggins.
19 Q. And what -- what position did he
20 have?
21 A. He was, from memory, an operator.
22 Q. And she was, what, an operator?
23 A. From memory, yes, but I'm not --
24 don't hold me accountable for either of those.
0093
1 I'm not positive that would be their job title.
2 Q. Now when was Dr. John Hochstrasser
3 hired?
4 A. I don't know the year.
5 Q. Was it approximately 1992?
6 MR. MACE: Objection.
7 A. I would have to say probably in
8 that time frame, '92, '93. I think he was hired
9 as part of -- after the formation of Tastemaker
10 which I described earlier, so I think he was
11 hired after that. I don't think he was a Fries
12 & Fries employee before.
13 Q. Do you recall what Dr.
14 Hochstrasser's background was in terms of his
15 educational training and experience?
16 A. No, I do not.
17 Q. What -- what role was he asked to
18 fill?
19 A. What I described as an EH&S
20 function, so he would have been head of
21 environmental health and safety. I'm not sure
22 that's the title that we used at that time.
23 That's what the title is in today's
24 organization.
0094
1 Q. I believe it was.
2 A. Okay.
3 Q. Do you recall calling Dr.
4 Hochstrasser at home in New Jersey and asking
5 him to look into the Janice Irick matter?
6 A. No.
7 MR. MACE: Objection.
8 Q. Let me show you page two of Exhibit
9 7 where he talks about Janice Irick's exposure
10 on the front page and then he talks about
11 substances diacetyl, literature search. And he
12 talks about a December 22nd, 1992 meeting at
13 1:30 p.m. Do you see that --
14 MR. MACE: Objection. Move to
15 strike.
16 Q. -- on that page?
17 A. 1992, meeting, 1:30 p.m. Yeah, I
18 see all the things you just referenced on this
19 piece of paper. I don't remember ever asking
20 John or ever John ever doing any kind of a
21 background search on -- on Janice. This is the
22 first time I've heard of this if, in fact,
23 that's the case.
24 Q. You see where it says, on the
0095
1 second to last page -- it's the second to the
2 last full page but it's three pages from the end
3 in terms of written material. Bronchiolitis
4 obliterans, do you see that?
5 A. Yes.
6 Q. The body it says it's a fibrotic
7 lung disease primarily affects the small
8 conducting airways. Lesions that result from
9 damage to the bronchioles -- bronchiolar
10 epithelium. Do you see that?
11 MR. MACE: Objection. Move to
12 strike.
13 A. I see this, yes.
14 Q. Alveoli next to the small airways
15 are involved. Do you see that?
16 MR. MACE: Objection.
17 A. Yes.
18 Q. Did you ever tell FEMA or anyone
19 else in the 1992 time frame that one of your
20 employees had died and you were investigating
21 exposures to diacetyl and its ability to cause
22 bronchiolitis obliterans?
23 MR. MACE: Objection, compound,
24 objection to form, objection to
0096
1 characterization.
2 Q. You, being your company, not you,
3 personally.
4 MR. MACE: Same objections.
5 A. No for both of those though. Not
6 I, personally, nor the company, to the best of
7 my knowledge, communicated with FEMA. Never,
8 ever did we have any indication as to Janice's,
9 you know, what the causative factors were for
10 her death.
11 Q. And you never warned your customers
12 that this was possible either, did you?
13 MR. MACE: Objection, assumes.
14 Objection to form.
15 Q. In 1992?
16 A. That's correct.
17 Q. Or any time thereafter?
18 MR. MACE: Objection.
19 A. That's correct.
20 Q. Including through today?
21 MR. MACE: Objection.
22 A. That's correct.
23 (Exhibit 8 was marked for
24 identification.)
0097
1 Q. Let's look at Exhibit 8. This is
2 another memorandum from Dr. Hochstrasser on
3 December 8th of 1992 regarding potential
4 employee health problems. Who was Randy
5 Schmelzel?
6 A. Randy Schmelzel was the plant
7 manager, I'm not positive about the title, but
8 functionally the plant manager for the
9 Cincinnati plant.
10 Q. 1992 it says, it has been reported
11 that one former employee and one current
12 employee have been diagnosed as having
13 bronchiolitis obliterans. Do you see that?
14 MR. MACE: Objection. Move to
15 strike.
16 A. Yes.
17 MR. MACE: Under Rule of
18 Completeness this goes on to say, this disease
19 is usually occupationally associated with
20 exposure to vegetable dusts, moldy hay.
21 Q. Look over to page 7423 on the next
22 page, page two. Some of the possibilities of
23 exposure sources include, and then it skips
24 down, three, related to exposures to
0098
1 environmental agents in the vicinity of
2 Tastemaker airborne spores, related to
3 occupational exposure at a previous employers,
4 related to occupational exposure at Tastemaker.
5 Do you see those -- those possibilities listed?
6 MR. MACE: Objection. Move to
7 strike and Rule of Completeness, also unrelated
8 to occupational exposure could be hobby,
9 lifestyle, environmental unrelated to
10 occupational exposure to Tastemaker previous
11 employment exposure.
12 Q. It says, on the next page of this
13 document, page three at the top, the first step
14 must be identification of the causative agents
15 and sources. Do you see that?
16 MR. MACE: Objection. Move to
17 strike.
18 A. Says agent and/or agents and
19 sources and/or sources. Yes.
20 Q. Look over at page four. Without
21 causative agent identification every possibility
22 exists, two, single chemical, three, combination
23 of chemicals and/or biologic agents, biological
24 agents. Do you see that?
0099
1 MR. MACE: Objection.
2 Q. As well as other things listed?
3 MR. MACE: Objection. Move to
4 strike. Objection, Rule of Completeness, fungi,
5 bacteria, other things listed. You can answer.
6 A. I see that. This, to me, is a long
7 list of possible possibilities and it's, you
8 know, it's quite -- quite broad in nature.
9 Q. Do you see that at the next page,
10 page five, identify possibly causative agents,
11 if possible?
12 MR. MACE: Objection, move to
13 strike.
14 A. Along with a lot of other comments
15 absolutely I see that line, but there's much
16 more included in here, as well.
17 Q. Conduct literature search on
18 bronchiolitis obliterans, identify possible
19 causative agents, if possible. Do you see that?
20 MR. MACE: Objection. Move to
21 strike.
22 A. Yes, along with a whole lot of
23 other items under step two.
24 Q. And then note on the next page,
0100
1 page six, if at any time during the
2 investigation a possible causative agent is
3 identified industrial hygiene involvement will
4 focus on exposure, exposures to that -- those
5 agents.
6 MR. MACE: Objection.
7 Q. Do you see that?
8 MR. MACE: Objection, move to
9 strike.
10 A. Yes.
11 (Exhibit 9 was marked for
12 identification.)
13 Q. Let's look at Exhibit 9. Handing
14 you a document which is marked as Exhibit 42 in
15 Dr. Hochstrasser's deposition. It's dated
16 10-20-93. Look over it, 9347.
17 MR. MACE: Let me object, no
18 foundation, objection, hearsay, also the date is
19 only the date of the first phase.
20 A. Which page is Exhibit 9? You said
21 42. I just want to make sure we're on the right
22 one.
23 MR. MACE: I think they put the
24 label over the other label.
0101
1 A. Okay. Good enough. So what --
2 what page now?
3 Q. 9347 is the Bates number at the
4 bottom.
5 MR. MACE: These little numbers.
6 A. Got it. Okay.
7 Q. It says, diacetyl may need a risk
8 assessment. Do you see that?
9 MR. MACE: Objection, move to
10 strike.
11 A. Just a minute.
12 MR. MACE: And Rule of
13 Completeness, but why not get from suppliers.
14 Q. And then it says, we ought to get
15 baseline exposure data. Do you see that?
16 MR. MACE: Objection, move to
17 strike.
18 A. Yes, I do.
19 Q. Did you ever --
20 A. I can see that as part of this
21 whole section on next steps ventilation, review
22 list of materials, source test, whole bunch of
23 stuff. I have trouble reading all these but
24 just part of a big long laundry list of items.
0102
1 The next step is a very complex subject.
2 Q. Right, very complex subject about a
3 very serious issue --
4 A. Yeah.
5 Q. -- that you never informed one
6 single customer about. Am I right?
7 MR. MACE: Objection. Objection,
8 argumentative. Objection, move to strike.
9 A. As I said before we've not
10 communicated to -- to customers.
11 (Exhibit 10 was marked for
12 identification.)
13 Q. Look over Exhibit 10, which was
14 Exhibit 41 in Dr. Hochstrasser's deposition.
15 And I've left it now as 41 there so you can see
16 that I didn't cover it up this time. This is
17 from Dr. Hochstrasser to Nancy Higley. Who was
18 Nancy Higley?
19 A. Nancy's title was head of
20 regulatory.
21 Q. And Randy Schmelzel, is that how
22 you say his name?
23 A. Schmelzel.
24 Q. Schmelzel --
0103
1 A. Uh-huh
2 Q. -- was plant manager?
3 A. Yes.
4 Q. One, two, diacetyl still appears to
5 be a viable candidate as a possible etiologic
6 agent, or at least one of the agents. Also,
7 please re-run the literature search on diacetyl
8 to see if any new information has been published
9 and check with the EPA for any additional
10 information. Do you see that?
11 MR. MACE: Objection. Move to
12 strike.
13 A. I do see that, yes.
14 Q. Did you ever tell FEMA that you
15 thought diacetyl was causing bronchiolitis
16 obliterans in your plant during 1993?
17 MR. MACE: Objection. Objection,
18 mischaracterization, objection, assumes,
19 objection to form.
20 A. No. Diacetyl was not high on the
21 list of items that -- that come back to my
22 memory. The things that we focused on most
23 importantly at the very beginning was on
24 acetaldehyde was the suspect item. Diacetyl,
0104
1 while it may be on this document, was not
2 something that I was familiar with.
3 Q. Well, we'll -- we'll come back to
4 acetaldehyde in a few moments. But my question
5 relates to did you ever notify anyone about that
6 subject?
7 MR. MACE: Objection.
8 A. No, I have not seen this document
9 before.
10 Q. Can you describe for us the
11 relationship between Fritchie Dodge and
12 Givaudan?
13 MR. MACE: Objection.
14 A. Fritchie Dodge in Olcott was a BASF
15 company, it's a flavor company, that was
16 purchased or acquired by either Givaudan Rohr or
17 Roche. Once again, I don't know the specifics
18 of how the acquisition took place but it was
19 acquired by Givaudan in the early part -- the
20 latter part of 1990. That's what I know.
21 Q. Latter part of 1990?
22 A. 1990, yes.
23 Q. And you are now aware that BASF, in
24 1993, conducted a rat study which showed damage
0105
1 to the lung from breathing diacetyl, are you
2 not?
3 MR. WOODSIDE: Objection.
4 MR. MACE: Objection.
5 A. I have not seen that study. I've
6 been made aware of that study by counsel this
7 week.
8 Q. Let me show you --
9 MR. MACE: We're not waiving
10 attorney/client privilege.
11 Q. -- let me show you Exhibit 11.
12 (Exhibit 11 was marked for
13 identification.)
14 Q. It's come apart. Here's -- here's
15 the last pages of it.
16 MR. MACE: Thank you.
17 Q. First of all, Exhibit 11 is a cover
18 letter in 2001 to Anne Marie Apl at the Research
19 Institute for Fragrance Materials, Inc. Are you
20 familiar with the Research Institute for
21 Fragrance Materials, Inc.?
22 A. Only by name.
23 Q. Is Givaudan a member of the
24 Research Institute for Fragrance Materials,
0106
1 Inc.?
2 A. I'm not positive that we are.
3 Givaudan -- Givaudan Fragrance might
4 participate. This is a fragrance association.
5 Q. And was Tastemaker a member?
6 A. No.
7 Q. They were not a member?
8 A. No. Not to the best of my
9 knowledge. RIFM relates to Fragrance Materials.
10 Q. Are you aware, or you are now aware
11 that this study existed as of 1993, am I right?
12 MR. MACE: Objection.
13 MR. WOODSIDE: Object to form,
14 foundation.
15 A. I'm only aware that it existed as
16 of this week as I said a moment ago, yes.
17 Q. But you see that it's dated in
18 1993, am I right?
19 MR. MACE: Objection. Referring to
20 the internal data, BASF internally?
21 A. I'm not sure where the date is but
22 I'm not going to quabble (sic) with you. I'm
23 sure the --
24 Q. First page of the document.
0107
1 MR. MACE: Objection.
2 Q. You see --
3 MR. MACE: First page is the cover
4 letter for it.
5 Q. -- first page of the report. See
6 where it's June?
7 A. I'm sorry. I don't know where
8 you're looking at.
9 Q. Right there. Do you see the stamp
10 date there?
11 A. I can't read it, that's what I'm
12 saying, it's June 8th --
13 Q. June 8th of 1993?
14 A. -- '90 something. Okay, looks like
15 to be like '98, whatever.
16 Q. Look at the next page. I think it
17 will be clear to you.
18 A. Okay.
19 Q. The handwritten dates inside the
20 document.
21 A. Okay. Yes.
22 Q. 1993?
23 A. Uh-huh. I see.
24 Q. And do you -- did Tastemaker ever
0108
1 ask the University of Cincinnati or anyone else
2 to conduct any animal experiments on any of the
3 chemicals in use in its facility to see whether
4 or not they would cause bronchiolitis
5 obliterans?
6 MR. MACE: Object.
7 A. Not to the best of my memory.
8 Q. Let me show you what we'll mark as
9 Exhibit 12.
10 (Exhibit 12 was marked for
11 identification.)
12 MR. MACE: Object on foundation.
13 Q. This was Exhibit 43 to Dr.
14 Hochstrasser's deposition. It's dated 1-19-94.
15 Next page, under three, industrial hygiene
16 sampling. Says, three, we want to sample
17 acetaldehyde, mustard seed oil, diacetyl. Do
18 you see that?
19 MR. MACE: Objection. Calls for
20 hearsay, objection to form, objection to Rule of
21 Completeness after diacetyl, but we don't have a
22 sample method yet. You can answer.
23 A. Acetaldehyde, sample -- I'm looking
24 for diacetyl in here, so I don't see it.
0109
1 Q. Three, we want to sample, do you
2 see over in the --
3 A. Maybe I'm on the wrong page. I'm
4 sorry. Maybe I'm on the wrong page.
5 Q. Left hand column?
6 A. Oh, three -- oh, sorry, yeah. On
7 three we want to sample. Go ahead.
8 Q. Acetaldehyde, mustard seed oil and
9 diacetyl --
10 MR. MACE: Objection.
11 Q. -- but we don't have a sample
12 method yet.
13 MR. MACE: Objection.
14 A. Okay, I see that.
15 Q. It says, we do specific sampling
16 for Nancy id.
17 MR. MACE: Objection. I'm not sure
18 that's what it says.
19 Q. Sulfates.
20 MR. MACE: Objection.
21 Q. You see that?
22 MR. MACE: Objection. Move to
23 strike.
24 A. I see the area you're pointing to.
0110
1 I'm not sure I understand what any of this is
2 really telling me.
3 (Exhibit 13 was marked for
4 identification.)
5 Q. Well, let's look at Exhibit 13 and
6 see --
7 A. Okay.
8 Q. -- what it tells you.
9 MR. MACE: Objection to foundation.
10 Q. This is an exhibit that relates to
11 Cliff Walker, one of the people that we saw on
12 Exhibit 5 earlier. Do you remember that?
13 MR. MACE: Objection.
14 A. This is the same as was attached to
15 item five. Is that what you're saying?
16 Q. It was the list of your employees
17 that we went through --
18 A. Okay.
19 Q. -- who have been diagnosed with
20 bronchiolitis obliterans. Cliff Walker was --
21 A. He's one of them, is that what
22 you're saying?
23 Q. Yes.
24 A. Okay. Yes.
0111
1 Q. And you recall that?
2 A. Yes.
3 MR. MACE: When you say you recall
4 that, you're saying do you recall us talking
5 about it today, right?
6 Q. Well, you recall that, talking
7 about it today, but you also recall Cliff Walker
8 being one of the employees who was diagnosed
9 with bronchiolitis obliterans --
10 MR. MACE: Object.
11 Q. -- from having worked at Givaudan
12 as its president?
13 MR. MACE: Objection.
14 A. What I'm referring to is I'm
15 agreeing that he is on the list that is listed
16 as Deposition Exhibit 5. That's what I was
17 responding to.
18 Q. Okay. And you also recall --
19 A. I thought that was the question.
20 Q. -- independently, do you not?
21 MR. MACE: Objection.
22 Q. Don't you recall Cliff Walker's
23 name independently?
24 A. Yes.
0112
1 Q. All right. Now this is a report
2 from the University of Cincinnati Medical Center
3 who we saw earlier that you had engaged to
4 consult with you regarding the outbreak of
5 bronchiolitis obliterans at your plant. Am I
6 right?
7 MR. MACE: Objection.
8 A. Lockey and/or the University of
9 Cincinnati was -- was -- I guess it was Lockey,
10 I don't know if they had a separate agreement
11 with the University of Cincinnati or not, but
12 was one of the external resources that we were
13 using to try to understand this situation
14 better. That's correct.
15 Q. And it says, James E. Lockey, M.D.,
16 Director Occupational Environmental Medicine.
17 Do you see that?
18 MR. MACE: Object.
19 Q. He's on the last page of the
20 document --
21 MR. MACE: Objection.
22 A. Hold on.
23 Q. -- as signing it?
24 A. I see his signature on there, yes.
0113
1 Q. Okay. It says, at -- on the -- go
2 back one page from that.
3 A. Okay.
4 Q. It says, discussion, Mr. Cliff
5 Walker is a 48 year old gentleman who has
6 clinical findings as well as laboratory results
7 consistent with bronchiolitis obliterans.
8 MR. MACE: Objection. Move to
9 strike.
10 A. Yes, I see that.
11 Q. Go back then two pages in front of
12 that.
13 A. Okay.
14 Q. He noted the following chemical
15 agents that would cause him to have breathing
16 problems.
17 MR. MACE: Objection. Move to
18 strike.
19 Q. The first item listed is diacetyl.
20 This would be added to butter. It would reach a
21 certain temperature and flash. He subsequently
22 would awaken at night with chest tightness and
23 cough and difficulty breathing. This would last
24 approximately four to five days and then
0114
1 resolve. There is no associated fever, chills,
2 muscle aches or pains. This occurred two or
3 three times per week until this butter operation
4 was transferred to the spray dry area
5 approximately two years prior to this
6 evaluation. Do you see that?
7 MR. MACE: Objection, calls for
8 hearsay, objection to reading the document,
9 objection, move to strike, objection Rule of
10 Completeness, also talks above that about
11 working at Grace Chemical previously filling
12 hoppers with unknown powder with frequent chest
13 colds, not wearing a respirator, referring to
14 garlics, toasted and enzymes.
15 Q. Did you see the portion I read to
16 you, Mr. Davis?
17 A. I see all the portions that have
18 just been noted.
19 Q. Now in 1992 Tastemaker instituted a
20 program where, if anyone worked around diacetyl,
21 they had to utilize a respirator; isn't that
22 true?
23 MR. MACE: Objection.
24 A. Would you state that one more time
0115
1 for me, please?
2 Q. I'm not sure that I can. Can you
3 read that question back?
4 (Record read by Reporter.)
5 MR. MACE: Objection.
6 A. I can't answer that. I -- I don't
7 know the answer to that. Sorry.
8 Q. Would you look at the procedures,
9 natural and artificial diacetyl spray drying?
10 A. Okay.
11 Q. Safety equipment needed, full face
12 respirator.
13 MR. MACE: Objection.
14 Q. You see that?
15 A. Yes, along with goggles, rubber
16 gloves and then the procedure here, review MSDS
17 and all this, right, part of it.
18 Q. The following procedure must be
19 followed during the usage of diacetyl. This
20 will reduce the risk of injury to personnel. Do
21 you see that?
22 MR. MACE: Objection.
23 A. Yes.
24 Q. Any room containing -- number
0116
1 three, any room containing diacetyl in a liquid
2 state must be labeled respirator required. Do
3 you see that?
4 MR. MACE: Objection, move to
5 strike.
6 A. Yes. It's part of a -- this long
7 procedure here of nine different items, yes.
8 Q. Seven, whenever material's in any
9 tank lids must be closed. If ventilation,
10 paren, mechanical is not connected to tank or is
11 unavailable a respirator must be worn at all
12 times while in the room.
13 MR. MACE: Objection, move to
14 strike.
15 A. Yes.
16 (Exhibit 15 was marked for
17 identification.)
18 Q. Now let me show you Exhibit 15.
19 MR. MACE: Objection, foundation.
20 Q. This was 46 to Dr. Hochstrasser's
21 deposition. It's safety committee meeting
22 minutes. Was there a safety committee at the
23 Cincinnati plant?
24 A. I don't -- the best of my memory,
0117
1 yes.
2 Q. Who was Sophia Sperelakis?
3 A. I do not remember. Sorry.
4 Q. Jerry Biscopink?
5 A. Jerry Biscopink, looking for his
6 name on here someplace --
7 Q. He's up at the right.
8 A. Oh, that's your extra copy, Jerry
9 Biscopink. He was the plant manager at this
10 time.
11 Q. And Bob Pellegrino?
12 A. Yes.
13 Q. Who's he?
14 A. He was the -- let's see, this is
15 '95 so he would have been the head of -- of our
16 North American operation.
17 Q. And were these other individuals
18 listed here members of the safety committee or
19 involved in safety at the plant at one point or
20 another?
21 MR. MACE: Objection.
22 A. I mean, the list that says present?
23 Q. Yes.
24 A. I -- I'm assuming that to be the
0118
1 case. I don't know that to be the case. This
2 could -- because sometimes you have a meeting
3 and you may have other people attend the meeting
4 just for, you know, to bring some particular
5 information. Some of the -- few of these names
6 I recognize and know that they worked in
7 operations. Some of the names I don't remember
8 at all. There's a safety guy on here, for
9 example, as well.
10 Q. Do you see -- do you see the old
11 business category at the bottom?
12 A. Yes. Uh-huh.
13 Q. Do you see, under the last broken
14 line at the bottom of the page, full face
15 respirators should be worn if there are any
16 potentially harmful vapors, i.e. diacetyl,
17 acetaldehyde, DMS. You see that?
18 MR. MACE: Objection. Move to
19 strike. Objection to form. Rule of
20 Completeness, dot, dot, dot after the DMS.
21 Q. Do you see that?
22 A. Yes, I do.
23 Q. DMS is dimethyl sulfide?
24 A. Don't know the answer to that.
0119
1 Q. Is that your understanding of what
2 DMS is?
3 MR. MACE: Objection.
4 A. Well, I know what -- I've heard of
5 dimethyl sulfide. I've never heard to it
6 referred to as DMS so I could say yes but I
7 don't know that to be the case.
8 Q. Isn't dimethyl sulfide and diacetyl
9 both components of your butter flavor?
10 MR. MACE: Objection.
11 A. I don't know what the components
12 are in -- in the butter flavors. There's a lot
13 of components in there and diacetyl is one that
14 is used in butter flavors, in our butter flavors
15 at a -- at a very low level, yes.
16 (Exhibit 16 was marked for
17 identification.)
18 Q. Let me show you Exhibit 16, which
19 was 47 to Hochstrasser's deposition. This is a
20 document from the RIFM FEMA database that was
21 obtained by Mr. Hochstrasser by 1995. Would you
22 look over the human health data, human health
23 effects data on the second page?
24 MR. MACE: Let me object. Can you
0120
1 read it back to me?
2 (Record read by Reporter.)
3 MR. MACE: Objection.
4 Mischaracterization. Objection, foundation.
5 You can answer.
6 A. I don't know if this is from --
7 you're asking -- you just made a comment it's a
8 RIFM and FEMA database. I'm not sure they're
9 one in the same.
10 Q. You don't know whether this is --
11 I'm sorry, I was asking Steve a question. Could
12 you read me back his answer?
13 (Record read by Reporter.)
14 Q. Well, I am so --
15 A. Okay. That's fine.
16 Q. -- accept my representation.
17 A. That's fine. I'm just asking. I
18 don't know what the source of this was. That's
19 why I was asking.
20 Q. This is the RIFM FEMA database.
21 A. Fine.
22 Q. It's a document that's been used in
23 our litigation in Missouri.
24 MR. WOODSIDE: Over my objection, I
0121
1 might add.
2 Q. But not as to my characterization.
3 A. Okay.
4 Q. Human health effects data
5 inhalation. Harmful and the -- and listing as
6 its symptoms and then the sore throat, coughing
7 as being -- I'm sorry. Do you see where it says
8 inhalation --
9 A. Uh-huh.
10 Q. -- on the document? And then it
11 lists the harm, that it's harmful by inhalation,
12 and then the symptoms sore throat, coughing may
13 be absorbed, high concentrations may cause
14 irritation of respiratory tract, capable of
15 producing systemic toxicity. Do you see that?
16 MR. MACE: Objection, move to
17 strike.
18 A. Uh-huh. Diacetyl is a known
19 irritant, no question, along with a lot of other
20 ingredients we work with.
21 Q. Well, it's not only an irritant,
22 it's also harmful, right?
23 MR. MACE: Objection.
24 A. I know it's a known irritant.
0122
1 Q. And it's capable of producing
2 systemic toxicity?
3 MR. MACE: Objection.
4 A. I don't know what that even means.
5 Q. You don't know what systemic
6 toxicity means?
7 A. That's correct.
8 Q. Tell us about your educational
9 background, would you, please?
10 A. Uh-huh. I got a degree in
11 economics and a second degree in finance.
12 Q. And you have toxicologists working
13 for you --
14 MR. MACE: Objection.
15 Q. -- do you not?
16 A. We may have a toxicologist working
17 for us today. Over a period of years that I've
18 been with the company at different times we have
19 had a toxicologist. Nancy Higley is a -- is a
20 toxicologist.
21 Q. And she was a toxicologist during
22 the time period where you were examining the
23 cause of bronchiolitis obliterans in your plant;
24 isn't that right?
0123
1 MR. MACE: Objection. And he also
2 -- I'm not sure the witness was done answering
3 when you interrupted him.
4 Q. I'm not sure, either, but I really
5 was asking him a specific question, and she was
6 a toxicologist who was employed by you during
7 the time period that bronchiolitis obliterans
8 was occurring in your plant?
9 A. Nancy Higley is a toxicologist and
10 she was a toxicologist when she worked for us.
11 Q. And Dr. Hochstrasser was -- was
12 hired to be in charge of environmental health
13 and safety, true?
14 A. As we've already said before, yes,
15 he was and I don't know what his specialty is.
16 I don't believe he's a toxicologist.
17 Q. Well, we'll rely on Dr.
18 Hochstrasser's deposition to tell us about his
19 qualifications, but you didn't hire someone
20 unqualified to be the head of your environmental
21 health and safety division, did you?
22 A. No, I -- I believe John was very
23 well qualified but there was no necessity for
24 the head of EH&S to be a toxicologist because
0124
1 he's also dealing with environmental issues,
2 he's dealing with safety issues so -- and, you
3 know, health is one of his three
4 responsibilities. We did have a toxicologist
5 and we had ability to go outside if we needed
6 toxicology support.
7 Q. And you did all that?
8 A. And we would have to do that.
9 Q. They need -- they need to change
10 the tape so --
11 MR. GRUBB: Changing from videotape
12 and DVD number one to two, and we're off the
13 record.
14 (Off the record discussion.)
15 MR. GRUBB: 3:36 and 47 seconds,
16 we're back on the record with DVD and tape two.
17 Q. We -- we had talked previously,
18 when we were looking at the New England Journal
19 of Medicine article, which I think we marked as
20 Exhibit 2 to your deposition a second ago.
21 A. Uh-huh. You showed me the article,
22 yes. I had not seen it before, but yes.
23 Q. That referenced the International
24 Baker Study?
0125
1 A. Okay.
2 Q. And you recall being shown a study
3 back during the time when you were examining
4 bronchiolitis obliterans?
5 MR. MACE: Objection,
6 mischaracterization.
7 A. I said -- that's not true. I did
8 not see an article back at that point in time.
9 What I said is I remember that there was, as we
10 did part of that whole broad search in trying to
11 understand this situation, that someone did
12 bring to the attention that there was, in fact,
13 a previous situation that was quite different
14 than ours. That's what I said before.
15 (Exhibit 17 was marked for
16 identification.)
17 Q. This is Exhibit 17 to your
18 deposition. This was 32 to Mr. Hochstrasser's
19 deposition. This is from Janice Dees. Who is
20 Janice Dees?
21 A. I remember the name but I don't
22 remember the function.
23 Q. This memo is to you and others. Do
24 you see that?
0126
1 A. Yes, on the cover page I see that.
2 Q. It says, attached is an abstract
3 from an interesting article I found while doing
4 a literature review. This is the only article I
5 can find that demonstrates a possible
6 relationship between dust and bronchiolitis
7 obliterans or emphysema. I will -- I will be
8 obtaining the entire health hazard evaluation
9 for further review. Do you see that?
10 A. Yes. This is the one that relates
11 to the dust and that's why we, at the point in
12 time, really didn't feel this was really
13 relevant to what we were encountering.
14 Q. Well, it does refer this -- to this
15 International Baker Services, Inc. study, does
16 it not, on the second page?
17 A. Yes, it does.
18 Q. All right. And I'm going to hand
19 you what's been marked as Exhibit 18.
20 (Exhibit 18 was marked for
21 identification.)
22 A. I believe this may have been the
23 only reference I could find to any workplace
24 bronchiolitis obliterans with this particular
0127
1 case. That's how the reference came to us as we
2 were just doing a thorough research reference
3 search.
4 Q. Okay. And -- and just so that we
5 can track this through would you look at the
6 numbers on the last exhibit up at the top,
7 health hazard evaluation report 85-171-1710?
8 A. Okay.
9 Q. And look down at the bottom.
10 A. Yes. I see it.
11 Q. And that refers to the same health
12 hazard evaluation report; am I right?
13 A. It references it, yes. I've never
14 seen the one you just handed me as Exhibit 18
15 but it definitely -- it looks like it's the same
16 -- same set of series of numbers on the front of
17 it.
18 Q. And also confirm for me this was
19 one of the articles that was cited by NIOSH in
20 support of their finding that bronchiolitis
21 obliterans was caused by butter flavor as -- as
22 reference 17 in Exhibit 2, would you please?
23 MR. MACE: Objection.
24 MR. WOODSIDE: Objection.
0128
1 MR. MACE: Mischaracterization.
2 Objection, always doing the reading from a
3 document, objection to form.
4 Q. Go look at Exhibit 2 again.
5 A. Okay. But in reaction -- or
6 response to your question I'm not aware that
7 this is a reference that was made by NIOSH as --
8 you'll have to read the question back to me but
9 just as you just phrased that question I don't
10 recall this as being a reference in there. It
11 may have been but it doesn't ring a bell with
12 me.
13 Q. I'm going to show you right now if
14 you'll just do what I ask you to do. Go to
15 Exhibit 2.
16 A. Go back to 2. I have Exhibit 2.
17 Q. Okay. And --
18 A. Which is a document I said I've not
19 seen before.
20 Q. Right. And go to reference 17.
21 A. Okay. This is the last page, I
22 guess, or no?
23 Q. Yes. It's reference 18.
24 A. 38, reference 18, that's Lockey.
0129
1 Q. No. Lockey's 19.
2 A. Okay. Yeah. 18. I see that.
3 Q. Health hazard evaluation and
4 technical assistance report, International Baker
5 Services, South Bend, Indiana. Cincinnati
6 National Institute for Occupational Safety and
7 Health 1986. Number 851711710. Do you see
8 that?
9 A. Yes, I do. They are one in the
10 same, I would say.
11 Q. And you had reference to that as
12 early as 1995 by this memo, did you not?
13 MR. MACE: Objection.
14 Characterization. Objection to form.
15 A. The only reference that I have is a
16 memo that was sent to a group of people which
17 represented those people that were involved in
18 the task team indicating that there was a
19 reference found to bronchiolitis obliterans and
20 the workplace and as related to airborne dust.
21 So that is -- that's correct in terms of --
22 well, it's, as I just indicated, that is what
23 was communicated to this task team.
24 Q. And, by the way --
0130
1 A. Which I do not remember reading
2 this document. What I do remember is, I told
3 you before, a reference to an earlier situation
4 in a manufacturing facility like what -- what
5 appear to be a very different background for
6 that.
7 Q. Well -- well, let's talk about
8 that.
9 A. And I've never seen this document
10 you handed me, which is 851711710 or --
11 Q. You had many -- you had many dusts
12 at the -- you had many at the Tastemaker plant;
13 isn't that true?
14 A. No, I would not think that's a fair
15 characterization.
16 Q. Wasn't one of your major projects,
17 spray dried diacetyl?
18 MR. MACE: Objection. Character --
19 A. A major project, not that I'm aware
20 of. We do make -- we do make spray dried
21 products, absolutely.
22 Q. Spray dried butter flavors?
23 A. We make everything spray dried.
24 Everything -- anything you can -- we can sell in
0131
1 a liquid form can also be sold in a dry form.
2 Q. All right. And that includes
3 butter flavors?
4 A. I would assume that it does, yes.
5 Q. Containing diacetyl?
6 A. I don't know specifically if the
7 formulas that we spray dry as a butter flavor
8 contained diacetyl. I do not know that for
9 sure.
10 Q. You are aware that spray dried
11 products appear as powders generally; isn't that
12 true?
13 A. Spray dried products are powders,
14 that's correct.
15 (Exhibit 19 was marked for
16 identification.)
17 Q. Now let's look at Exhibit 19. This
18 is a letter from Mr. -- from Dr. Baughman. Who
19 is Dr. Baughman?
20 A. I do not know who Dr. Baughman is.
21 Q. Well, let me -- let me take a
22 second and find the previous document.
23 MR. CRICK: What are you looking
24 for?
0132
1 MR. McCLAIN: Reference to Baughman
2 and handwritten notes by Hochstrasser.
3 MR. GRUBB: Should I go off the
4 record?
5 MR. McCLAIN: Yeah, go off the
6 record a second.
7 MR. GRUBB: Off the record.
8 (Off the record discussion.)
9 MR. GRUBB: We are back on the
10 record, sir.
11 Q. Looking back to Exhibit 7, the box
12 that I have turned over for you, there's a box
13 in the middle of the page.
14 A. Okay.
15 Q. You see Dr. Baughman's name --
16 MR. MACE: Objection. Foundation.
17 Objection, form.
18 Q. -- next to Dr. Thorpe?
19 A. Dr. Thorpe, Dr. Baughman. Okay.
20 Q. This refers to Mary Sue McGee.
21 That was one of the people that was identified
22 -- Exhibit 18 now, now we're back to Exhibit 18.
23 A. I don't see this so -- I don't see
24 Mary Sue McGee's reference name on here, for
0133
1 what that's worth.
2 Q. I -- my question to you was do you
3 remember Dr. Baughman --
4 A. Oh, okay.
5 Q. -- as being someone that was
6 involved in the inquiry about the employees?
7 A. It could have been. We used a lot
8 of experts, external experts during this time
9 period. He may have been one. His name is not
10 one that comes to the top of my memory. Okay.
11 Q. This is a letter from Dr. Baughman
12 to Lanahan Goodman, Esquire, regarding Mary Sue
13 McGee.
14 MR. MACE: Objection to foundation.
15 Q. It says, enclosed is a letter to
16 Dr. James Lockey which I had written on January
17 26th describing Ms. McGee's illness. In this
18 letter I summarized Ms. McGee's history and the
19 fact that I thought there was not much question
20 that Ms. McGee's bronchiolitis was bronchiolitis
21 obliterans associated with her work at
22 Tastemaker. I'm not sure, then he skips down,
23 I'm not sure whether the specific chemical
24 acetaldehyde has been clearly singled out as the
0134
1 agent that causes this but you tend to believe
2 this is probably exposure to various compounds
3 at the plant. Do you see that?
4 MR. MACE: Objection. Multiple
5 hearsay. Objection, move to strike. Objection,
6 no foundation.
7 A. That's what this second paragraph
8 says, yes.
9 Q. And you see where it says that, in
10 the paragraph above, her exposure to Tastemaker
11 was similar to that that other workers at
12 Tastemaker had who subsequently developed
13 bronchiolitis obliterans?
14 MR. MACE: Objection, move to
15 strike. Same objections.
16 Q. Do you see that?
17 A. Yes, I'm just -- I'm sort of
18 reading the whole thing here because it says, I
19 guess, Dr. Baughman is --
20 Q. My only question to you -- if he
21 wants you to read any of that, that's fine. I
22 don't mean to interrupt you, I'm just asking do
23 you see what I read?
24 MR. MACE: Objection.
0135
1 A. I see what you read, yes.
2 Q. Let me show you Exhibit 20.
3 (Exhibit 20 was marked for
4 identification.)
5 Q. Now this is -- you recall that Ron
6 Feldkamp was an individual that was on Exhibit
7 5, am I right?
8 A. I do recall his name on 5. He's
9 one of the employees. I don't really remember
10 him per se. I told you I remembered most of the
11 names but not all. His is one I don't remember
12 specifically.
13 Q. You see on the front page he was a
14 never smoker by the questionnaire he filled out?
15 MR. MACE: Objection, foundation.
16 Objection, move to strike.
17 A. Yes, I see that.
18 Q. Go on to page nine of this
19 document, would you?
20 MR. MACE: Objection to foundation.
21 A. Page nine. Sorry. Okay.
22 Q. It says, at Tastemaker are there
23 any chemicals or substances that you worked with
24 that seemed to result in tingling, burning or
0136
1 stinging of your eyes, nose or throat or
2 frequently sneezing or difficulty breathing. He
3 checked yes.
4 MR. MACE: Objection.
5 A. I can't tell where he checked but
6 he lists them underneath there so I would assume
7 he checked yes.
8 Q. And he lists acetaldehyde,
9 benzaldehyde, dimethyl sulfide, diacetyl, onion,
10 garlic oils and apple oils?
11 MR. MACE: Objection. Move to
12 strike.
13 A. Yes.
14 Q. And then Exhibit 20 --
15 MR. MACE: One.
16 Q. I'm sorry, 21? Is it 21?
17 MR. MACE: Yes, sir.
18 (Exhibit 21 was marked for
19 identification.)
20 Q. Exhibit 21 is regarding Walt Vaske,
21 and do you recall if he was an individual listed
22 on Exhibit 5?
23 A. Yes.
24 MR. MACE: Objection.
0137
1 Q. And this is a confidential medical
2 questionnaire identified as a Tastemaker
3 confidential medical questionnaire?
4 MR. MACE: Objection, foundation.
5 A. Yes.
6 Q. And do you see question 18 at
7 Tastemaker, this is on page nine again, are
8 there any chemicals or substances that you work
9 with that seem to result in tingling, burning or
10 stinging of your eyes, nose or throat or
11 frequently sneezing or difficulty breathing,
12 answer is yes?
13 MR. MACE: Objection, move to
14 strike.
15 A. Yes.
16 Q. And you see that he lists several
17 chemicals including diacetyl --
18 MR. MACE: Objection. Rule of
19 Completeness.
20 Q. -- on 18?
21 MR. MACE: Objection. Move to
22 strike.
23 A. He's listed acetaldehyde,
24 benzaldehyde, mustard seed oil, capcicate --
0138
1 capsocum, diacetyl, methyl sulo -- solithalate,
2 benzaldehyde, I can't read another one, some
3 oil, couple others I can't read on here. So,
4 yeah, among those, yes.
5 Q. Butter?
6 MR. MACE: Objection.
7 Q. The other is carcinogen butter?
8 MR. MACE: Objection. Move to
9 strike. Geez.
10 MR. WOODSIDE: I'll join in that.
11 Afraid I'll have to.
12 (Exhibit 22 was marked for
13 identification.)
14 Q. And then I'll show you Exhibit 22,
15 another document.
16 A. These were -- this is a Tastemaker
17 document, this is a survey we were doing with
18 employees, I assume, at the time. I was trying
19 to understand the situation. Is that what these
20 are?
21 Q. I understand that these were filled
22 out for the medical doctors at University of
23 Cincinnati.
24 MR. MACE: Objection.
0139
1 Mischaracterization.
2 MR. McCLAIN: My understanding.
3 Isn't that right?
4 MR. MACE: No.
5 MR. McCLAIN: No, it's not?
6 MR. MACE: No.
7 MR. McCLAIN: What were they filled
8 out -- it is true, isn't it?
9 MR. MACE: No, it's not.
10 MR. McCLAIN: Yes, it is.
11 MR. MACE: Bet you a buck.
12 MR. WOODSIDE: Time out. Time out.
13 Do you have one more? If not, just let me know.
14 MR. MACE: I think he put it over
15 in his other pile.
16 Q. No, I didn't. That's all I have.
17 MR. WOODSIDE: Check that pile.
18 Q. Yeah.
19 MR. WOODSIDE: Thank you.
20 Q. That's what you meant. I'm sorry.
21 A. Should have bet him a buck.
22 Q. Huh?
23 MR. MACE: I should have bet you a
24 buck.
0140
1 Q. This is another document on Vaske
2 and he indicates that asking the question on
3 page nine, again, of him asking him about the
4 chemicals --
5 MR. MACE: Objection to foundation.
6 Q. -- he says that he used them in a
7 spray dry area. Do you see that?
8 MR. MACE: Objection. Move to
9 strike.
10 A. Page --
11 Q. Nine?
12 A. -- nine. I am looking for the
13 spray dry. Oh, where are they used. Which
14 material or materials? He's got 3 E on there,
15 whatever that is.
16 Q. Well, we saw earlier the same, I
17 mean, he filled out one before where he listed
18 them. Okay, this is a month later. Look at the
19 documents together. You can see that these two
20 documents, the last two I showed you, one was
21 filled out one month before --
22 A. Okay.
23 Q. -- afterwards --
24 MR. MACE: Objection to foundation.
0141
1 Q. -- then he's asked the same
2 question on the 18th, different format.
3 MR. MACE: Same objections.
4 Q. And then they had a question where
5 are they used, he said spray dry. Do you see
6 that?
7 MR. MACE: Objection. Move to
8 strike.
9 A. Yes, I see that.
10 Q. I'm going to show you what we'll
11 mark as Exhibit 23.
12 (Exhibit 23 was marked for
13 identification.)
14 Q. This is Exhibit 23 and we have one,
15 two, three people that are identified as workers
16 with pulmonary loss as defined by code A, B or C
17 or some combination. Three of them worked in
18 the spray dry area; am I right?
19 MR. MACE: Objection, foundation.
20 Objection, form.
21 Q. On the front page do you see --
22 A. I'm trying to figure out how you --
23 MR. MACE: Objection, calls for
24 hearsay.
0142
1 Q. You see lead operator?
2 A. Yeah, I see --
3 Q. Spray dry?
4 A. Yeah.
5 Q. Operator spray dry?
6 A. Yeah.
7 Q. Then operator spray dry is listed
8 down below again in terms of the individuals
9 that were identified as having bronchial
10 problems.
11 MR. MACE: Objection.
12 A. I don't see any individuals on the
13 bottom of page one at all. I just see
14 functions.
15 Q. Do you see operator?
16 A. Yeah, and I see spray dry but I
17 don't see any individuals. You said
18 individuals.
19 Q. Well, it's -- it's listing current
20 job titles of the individuals and their job --
21 and it's identifying workers with pulmonary loss
22 in your plant.
23 MR. MACE: Objection.
24 Q. You see that?
0143
1 MR. MACE: Objection, foundation.
2 Objection, calls for hearsay.
3 A. Yeah, I -- you know, I have a form
4 here and it's got all the information you're
5 saying on it. I'm not sure without better --
6 some additional explanation as exactly what this
7 is telling me. Okay. It says -- sensitivity is
8 what I see, so sensitivity is what it indicates.
9 Q. Here's --
10 A. Tells me if they're smokers and
11 then sensitivity so --
12 Q. Here's what it's telling you. It's
13 telling you that workers that are working with
14 these powders that were identified in the
15 International Bakers study which you had in your
16 possession in your own plant had breathing loss.
17 Isn't that true?
18 MR. MACE: Objection,
19 characterization. Objection, foundation.
20 A. This is --
21 MR. MACE: Objection to form. You
22 can answer.
23 A. So this is from the International
24 Bakers case is what you're telling me?
0144
1 Q. This is from your company --
2 A. What's that have --
3 Q. -- this is your employees.
4 A. Okay. Then what does that have to
5 do with International Bakers, that was your
6 question? I didn't hear what you asked me on
7 that.
8 Q. No, you asked me what has -- what
9 this has to do with and I'm telling you.
10 A. No, no, I'm trying to understand
11 the document. I just don't understand what this
12 document's telling me. I'm just --
13 Q. I'm just telling you what it's
14 telling you.
15 MR. MACE: Objection.
16 Q. I'm telling you what it's telling
17 you. I'm telling you that workers exposed to
18 spray dry materials --
19 A. You're trying to lead me, it sounds
20 like. Okay. I got it.
21 Q. You were saying that you thought
22 that this -- that the International Baker Study
23 was telling you something different than was
24 occurring in your plant and what I'm showing you
0145
1 is, in fact, on your own document you have
2 persons exposed to spray dried materials who
3 have significant breathing loss, don't you?
4 MR. MACE: Objection. Move to
5 strike. Objection, argumentative, objection to
6 form. Objection, mischaracterization,
7 objection, calls for speculation.
8 A. I can't support your question. I
9 can't agree to the comments that you just made
10 because I have not seen this document before and
11 I -- I would really need to go through each of
12 these sort of columns and explanations with an
13 expert, have them explain to me what this
14 document is telling me before I could respond
15 one way or the other to your comments.
16 Q. All right. Have you made any
17 investigation before today as to whether or not
18 the individuals in your plant who developed
19 bronchiolitis obliterans were exposed to spray
20 dried materials or not?
21 MR. MACE: Objection.
22 A. I cannot tell you what measures we
23 took within the plants relating to particular
24 individuals. We did have a task team that
0146
1 worked very diligently for a period of several
2 years to try to understand the situations. As
3 I've said before, as to whether or not they
4 pursued this in the same way you just described,
5 I cannot answer. I don't know the answer to
6 that.
7 Q. Let me show you Exhibit 24.
8 A. Okay.
9 (Exhibit 24 was marked for
10 identification.)
11 Q. Now previously you stated that you
12 thought the problem in your plant related to
13 acetaldehyde. Did I understand that correctly?
14 A. No. What I said is that
15 acetaldehyde was one of the ingredients that we
16 had a concern about early on in the process.
17 That was a -- sort of a leading contender we had
18 some concerns about.
19 Q. Well, then, it's true, isn't it,
20 that acetaldehyde was never identified as the
21 specific chemical that was of concern to you in
22 your plant?
23 MR. MACE: Objection.
24 A. It was never identified as a
0147
1 causative factor, that's correct.
2 Q. And, therefore, the causative
3 factor remained unknown because your
4 investigation didn't disclose exactly what was
5 causing bronchiolitis obliterans in your plant;
6 is that right?
7 MR. MACE: Objection. Objection to
8 characterization, objection to form.
9 A. I -- I wouldn't use the word
10 disclosed. I'd just say maybe I would use the
11 word discover, that we really were not able to
12 identify a particular causative factor.
13 Q. And, in fact, as you see from this
14 document from Dr. Hochstrasser to -- to Karen
15 Duros, paragraph two --
16 MR. MACE: Objection, foundation.
17 Q. -- I am now concerned that this
18 constant focus on acetaldehyde is detracting
19 from the message that we want to deliver to our
20 facilities regarding the need for caution when
21 handling flavoring ingredients. You see that?
22 MR. MACE: Objection to the form.
23 Objection, hearsay. Objection, move to strike.
24 Objection, Rule of Completeness going on to say,
0148
1 I want them to get a message they need to be
2 very cautious when handling acetaldehyde and
3 disregard those precautions when handling
4 glutaraldehyde or butyraldehyde. You can
5 answer.
6 Q. Did you hear what I said?
7 A. I did. And I just -- I -- you
8 read -- what you read to me is accurately
9 contained in this document as are the comments
10 made by Mr. Mace in the same paragraph.
11 Q. Do you see where it says, I am now
12 concerned that the constant focus on
13 acetaldehyde is detracting from the message that
14 we want to deliver to our facilities regarding
15 the need for caution when handling flavoring --
16 flavor ingredients. Do you see that?
17 MR. MACE: Objection. Same
18 objection. Move to strike. Rule of
19 Completeness.
20 A. I think I've -- I've already
21 responded to that, I believe.
22 Q. No, you didn't. Did you see what I
23 -- do you see --
24 MR. MACE: Objection, asked and
0149
1 answered.
2 Q. -- that what I read is in the
3 document?
4 MR. MACE: Objection.
5 Q. Yes or no?
6 MR. MACE: Objection.
7 A. I've already responded that what
8 you've read I agree is in the document as are
9 the comments in the same paragraph that were
10 made by Mr. Mace.
11 Q. And, by the way, that was the same
12 thing that the International Baker Study said,
13 wasn't it?
14 MR. MACE: Objection.
15 Q. That -- that if you can't determine
16 what agent is causing the bronchiolitis
17 obliterans precautions need to be taken when
18 working around all of them --
19 MR. MACE: Objection.
20 Q. -- true?
21 A. I think that -- that the situation
22 -- what we've done in the plant in our
23 operations was to implement all recommendations
24 that the experts provided to us.
0150
1 Q. Now here's the problem, Mr. Davis.
2 When did you ever pass along those
3 recommendations to your customers?
4 MR. MACE: Objection. Assumes.
5 Objection to form.
6 A. As I stated earlier we have not
7 communicated to our customers.
8 Q. Now here's the last point. NIOSH
9 has quite a big operation here in Cincinnati, am
10 I right?
11 MR. MACE: Objection.
12 A. I don't know the answer to that.
13 Q. Why don't you turn over all this
14 information to NIOSH so they can analyze your
15 history of bronchiolitis obliterans so that they
16 can determine how better to protect workers
17 throughout the flavoring industry and -- and
18 workers working with these flavors? Wouldn't
19 that be a good idea?
20 MR. MACE: Objection to the speech,
21 objection to comments of counsel, move to
22 strike, objection, argumentative, objection to
23 the form. You can answer.
24 A. I think NIOSH has -- has completed
0151
1 some very diligent studies that they felt were
2 appropriate. Had they come to our doorstep, you
3 know, that would be a different story. But I
4 don't know what information I would be expected
5 to turn over to them.
6 Q. Well, you -- you've never invited
7 NIOSH into your plants, have you?
8 A. We have not invited NIOSH into our
9 plants, no. On the other hand, they have
10 access --
11 Q. That was my only question, okay,
12 you've not invited them in, have you?
13 MR. MACE: Objection.
14 A. That's correct.
15 Q. You understand that the way that
16 they got into the Jasper plant was they were
17 invited in and conducted a full blown study,
18 true?
19 MR. MACE: Objection, objection,
20 characterization, objection to form.
21 A. I -- I don't know how they were --
22 how they, you know, were into the Jasper plant.
23 I wasn't part of that.
24 Q. Well, here's the point. At any
0152
1 point in time while you were struggling with
2 this you could have invited NIOSH into your
3 plant to investigate this outbreak of
4 bronchiolitis obliterans that occurred; am I
5 right?
6 MR. MACE: Objection.
7 A. We took a course of action that we
8 felt was the most appropriate course of action,
9 we brought aboard -- we incorporate or utilized
10 excellent internal resources, we supplemented
11 that with experts from the outside.
12 Q. But, but --
13 A. And I felt that we approached that
14 in absolutely the right way.
15 Q. I understand that's what you say
16 but you also say that you didn't figure it
17 out --
18 MR. MACE: Objection.
19 Q. -- right?
20 A. What I said is we do not know what
21 causative factors are for the problems that our
22 employees experienced in our plants. We do not
23 know that.
24 Q. Well, here's the -- here's the
0153
1 point. NIOSH did figure it out in the Jasper
2 plant --
3 MR. MACE: Objection.
4 Q. -- with less employees at issue
5 than you had at issue?
6 MR. MACE: Objection.
7 A. I -- I don't know.
8 MR. MACE: Mischaracterization,
9 objection to form. Go ahead.
10 A. I don't know what NIOSH found out
11 in their -- in terms of whether -- I don't know
12 if NIOSH has found out what, you know, what
13 caused these problems but that's not a -- a
14 Givaudan question.
15 Q. You didn't invite them in the
16 Givaudan plot (sic)?
17 MR. MACE: Objection.
18 Q. Strike that. You did not invite
19 them in the Givaudan plant?
20 MR. MACE: Objection.
21 Q. Right?
22 A. That's right. I explained to you
23 we take a different course of action to find
24 what this problem were. We took what we felt
0154
1 was the absolute best approach to finding out
2 what the problems were, what was affecting our
3 employees because we were concerned about our
4 employees.
5 Q. And at the end of the day what you
6 claim is you still haven't found out what caused
7 it, right?
8 MR. MACE: Objection.
9 A. So NIOSH is one other -- I was not
10 quite finished -- NIOSH is an approach, right.
11 We picked a different approach to that. Doesn't
12 mean that one is right or one is not right.
13 Q. Well, let's -- let's analyze them
14 just for a minute. You began looking at this
15 issue in 1992; am I right?
16 A. Yes.
17 Q. And in 2006, 14 years later, you
18 still don't have an answer to what caused nine
19 cases of bronchiolitis obliterans in your
20 plant --
21 MR. MACE: Objection,
22 mischaracterization.
23 Q. -- correct?
24 MR. MACE: Objection,
0155
1 argumentative, objection to form.
2 A. And I'm not sure we ever will. As
3 you know it's a very complex issue. There's a
4 lot of conditions both, you know, that -- as we
5 talked as you showed in some of these documents
6 earlier that, you know, there's a lot of factors
7 both within the workplace and outside the
8 workplace and pre-existing and people's
9 lifestyle and so many things come into that
10 equation. So we've taken all the steps that we
11 feel are appropriate that the experts have told
12 us inside our own plant to -- to ensure that we
13 do not have further cases of bronchiolitis
14 obliterans.
15 Q. I move to strike that answer. My
16 only question to you was after 14 years of study
17 you still haven't determined what caused the
18 bronchiolitis obliterans in your plant according
19 to you --
20 MR. MACE: Objection.
21 Q. -- true?
22 MR. MACE: Objection, asked and
23 answered, objection to form.
24 A. What I said is we don't know what
0156
1 caused the bronchiolitis obliterans and those
2 affected employees that were on the list that
3 you showed me earlier today.
4 Q. And NIOSH came into the Jasper
5 popcorn plant with less cases of bronchiolitis
6 obliterans to examine, and within 18 months had
7 determined what caused the bronchiolitis
8 obliterans at that plant, true?
9 MR. MACE: Objection --
10 MR. WOODSIDE: Objection.
11 MR. MACE: -- foundation, objection
12 to mischaracterization, objection to the form,
13 objection assumes. You can answer.
14 A. And the answer is I don't know. I
15 don't know if they found the causative factor.
16 I do know that they were in that plant.
17 Q. You didn't do any animal studies,
18 did you?
19 A. No, we did not.
20 Q. Or risk assessments on individual
21 chemicals?
22 MR. MACE: Objection.
23 A. I would say that might be an
24 incorrect statement. We had a tremendous amount
0157
1 of resources that were looking at raw materials
2 and assessing the materials, so I would say
3 that, you know, you may have mischaracterized
4 that.
5 Q. Well, are you aware of whether or
6 not you did a risk assessment on individual
7 chemicals in the plant?
8 A. I would not be the person to ask.
9 You'd have to ask one of the experts from our --
10 from the task teams that were involved in this
11 project more intimately than I was to answer
12 that question.
13 Q. And as far as you know there's been
14 no full blown paper ever published about your
15 experience with bronchiolitis obliterans, has
16 there?
17 MR. MACE: Objection.
18 A. I don't -- I don't know if there's
19 ever been a paper published which shared all the
20 information that we gathered publicly to make
21 that available to try to help understand the
22 situation better.
23 Q. Now here's my last request. Will
24 you allow me to send all these documents that we
0158
1 have seen to NIOSH so that they have, available
2 to them, this information that we have obtained
3 under a confidentiality agreement with your
4 lawyers --
5 MR. MACE: Objection.
6 Q. -- in this case?
7 MR. MACE: Objection. Objection to
8 form, improper question.
9 A. All what documents? Help me with
10 that.
11 Q. All the ones that we've seen?
12 A. All these right here?
13 Q. Yes.
14 A. I'd like to give that thought.
15 Q. Well, please get back to me because
16 I would like to send them and the documents
17 relating to bronchiolitis obliterans outbreaks
18 at your plant to the researchers at NIOSH so
19 that they have a better understanding of what
20 actually occurred in your work environment.
21 A. I -- I think they do have an
22 understanding of that. I think actually in one
23 of these documents you showed me that they
24 reference that. You showed me an awful lot of
0159
1 information here that I hadn't seen before but I
2 believe there was a reference back that they had
3 -- were familiar with that, so I'm assuming they
4 have that information.
5 Q. Mr. Davis, they referred to -- they
6 -- they saw Dr. Lockey's abstract, but Dr.
7 Lockey doesn't even have access to all this
8 information.
9 MR. MACE: Objection.
10 Q. I'm asking you to allow me to send
11 them all this information so they have a
12 complete picture of the bronchiolitis obliterans
13 outbreak in your plant so we can prevent this
14 from happening to other workers around the
15 world.
16 MR. MACE: Objection, move to
17 strike. Objection, argumentative, objection
18 characterization, objection,
19 mischaracterization.
20 Q. So you'll get back to me about
21 that; is that right?
22 MR. MACE: Objection, asked and
23 answered.
24 A. Sorry. I would think that would be
0160
1 a discussion that take -- should take place
2 between NIOSH and our company not between NIOSH,
3 our company, and yourself. I really believe
4 that's not, you know, that --
5 Q. Well, I'm going to check back with
6 NIOSH and see whether or not you've agreed to
7 give them these documents because I can't think
8 of any legitimate business reason not to provide
9 this to them and it would certainly help workers
10 around the world.
11 MR. MACE: Objection.
12 Q. So you give that some
13 consideration --
14 MR. MACE: Move to strike.
15 Q. -- and I'll check with NIOSH.
16 A. I will, and I will tell you that
17 we've done everything that we believe is
18 possible to try to find the, you know, to do
19 everything we could do to try to find the
20 solutions and understand the situation better
21 and we have been very forthcoming to the public,
22 to our -- to our employees, to the industry on
23 this issue for just the reasons you just said.
24 Q. Well, I hear you, but what you
0161
1 haven't done is given this entire package of
2 information to NIOSH nor have you invited NIOSH
3 in to investigate this matter at your plant, and
4 I'm suggesting to you that if you're really
5 truthful in regard to what you claim your desire
6 is that you would at least do those two things
7 because they're just down the street.
8 MR. MACE: Objection. Move to
9 strike. Objection, argumentative.
10 A. Irregardless --
11 Q. No further questions.
12 A. -- irregardless of where they are
13 we certainly would -- I'll take that under
14 consideration.
15 MR. MACE: Frank, do you have any
16 questions?
17 MR. WOODSIDE: I do not have any
18 questions at this time.
19 DIRECT EXAMINATION
20 BY MR. MACE:
21 Q. Mr. Davis, did you ever form a
22 belief that diacetyl was causing any lung
23 disease in employees at the Tastemaker plant?
24 MR. McCLAIN: Object to the form of
0162
1 the question as to his belief.
2 A. No.
3 Q. Did you ever form a belief that
4 butter flavoring was causing any lung disease in
5 employees at the Tastemaker plant?
6 A. No.
7 Q. In terms of this course of this
8 investigation and in terms of any meetings you
9 were at, anything you heard from anybody, did
10 anybody at Tastemaker or Givaudan ever tell you
11 they had formed a belief that diacetyl was
12 causing any lung disease at the Carthage plant?
13 MR. McCLAIN: Object to the --
14 object to the form of the question.
15 A. No.
16 Q. Did anybody at Tastemaker or
17 Givaudan ever tell you that they had formed a
18 belief that butter flavoring was causing the
19 lung disease at the Carthage plant?
20 A. No.
21 Q. I believe you mentioned to Mr.
22 McClain one of the reasons you went to FEMA was
23 because you wanted to make sure other flavor
24 manufacturers were not having similar problems.
0163
1 Is that what you said?
2 A. That's correct.
3 Q. And what was the report that you
4 got back from FEMA?
5 A. That there were -- they had made
6 phone calls to -- to the other companies in the
7 industry and came back and were very specific to
8 us that there was no other companies that were
9 experiencing a similar situation to what we had,
10 at which point we took this to be a very
11 localized issue.
12 Q. Sir, did you ever think that a
13 product that Tastemaker or Givaudan was shipping
14 out the door was causing bronchiolitis
15 obliterans or lung disease?
16 A. No.
17 Q. Throughout this period in the 1990s
18 that Mr. McClain was asking you about did you
19 ever hear anybody even suggest that, that a
20 product that Tastemaker was shipping out the
21 door was causing bronchiolitis obliterans or
22 lung disease?
23 A. No.
24 Q. Did you ever feel that any of your
0164
1 customers had a risk of similar issues?
2 A. No.
3 Q. The best of your knowledge did Dr.
4 Brooks, Dr. Lockey or any of these outside
5 consultants ever recommend that Tastemaker
6 notify any customer about any respiratory issues
7 or preventative measures?
8 A. They've never made a recommendation
9 of that sort.
10 Q. Mr. McClain's made the implication
11 you should have contacted customers. Why didn't
12 you contact customers?
13 A. We didn't contact customers because
14 I don't feel that there was anything that we
15 needed to -- to provide in terms of -- there was
16 nothing to communicate to the customer at the
17 end of the day.
18 Q. Nothing further at this time.
19 Thank you.
20 RECROSS-EXAMINATION
21 BY MR. McCLAIN:
22 Q. Have you reviewed Dr. Brooks'
23 testimony that he did tell you to warn your
24 customers?
0165
1 MR. MACE: Objection. Absolute
2 mischaracterization. Move to strike.
3 A. I've seen absolutely nothing from
4 any consultant from anybody external or internal
5 that said we should ever communicate to our
6 customers ever.
7 Q. In his preparation of you did Mr.
8 Mace not show you what Dr. Brooks testified to
9 under oath?
10 A. I did not see Mr. Brooks' --
11 Q. Dr. Brooks?
12 A. -- Dr. Brooks' testimony.
13 Q. I have no further questions.
14 MR. WOODSIDE: I have none at this
15 time.
16 MR. MACE: Nothing further at this
17 time.
18 MR. GRUBB: Same thing on the
19 viewing of the videotape --
20 MR. MACE: Yes, please.
21 MR. GRUBB: -- he will waive that?
22 MR. MACE: Yes.
23 MR. GRUBB: At this point we're off
24 the record. Time is 4:15 and 54 seconds.
0166
1
2
3
___________________
4 MICHAEL DAVIS
5
6
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7 (DEPOSITION CONCLUDED AT 4:15 P.M.)
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0167
1 C E R T I F I C A T E
2
STATE OF OHIO
3 : SS
COUNTY OF HAMILTON
4
5
6 I, Valerie Jones Conn, the undersigned,
a duly qualified notary public within and for
7 the State of Ohio, do hereby certify that
MICHAEL DAVIS, was by me first duly sworn to
8 depose the truth and nothing but the truth;
foregoing is the deposition given at said time
9 and place by said witness; deposition was taken
pursuant to stipulations hereinbefore set forth;
10 deposition was taken by me in stenotype and
transcribed by me by means of computer;
11 deposition was made available to the witness for
examination and signature; I am neither a
12 relative of any of the parties or any of their
counsel; I am not, nor is the court reporting
13 firm with which I am affiliated, under a
contract as defined in Civil Rule 28(D) and have
14 no financial interest in the result of this
action.
15
16 IN WITNESS WHEREOF, I have hereunto set
my hand and official seal of office at
17 Cincinnati, Ohio this _________day of
_____________, 2006.
18
19
_______________________
20 My commission expires Valerie Jones Conn
September 4, 2007 Notary Public-State of Ohio
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