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