Plaintiffs expert denies writing letter to asbestos researcher during Madison County trial

By Heather Isringhausen Gvillo | Feb 21, 2014

EDWARDSVILLE, Ill. (Legal Newsline) - As a rare asbestos trial continues in Madison County, Ill., day three was devoted entirely to the testimony of plaintiff witness Dr. Berry Castleman, who works in the field of toxic substances control.

While a large majority of Castleman's testimony traced the timeline of public knowledge of asbestos dangers from 1898 until after the 1970s, defense attorney Jim Lowery briefly strayed from the narrow line of questioning during cross examination to mention a letter believed to be written by Castleman to medical researcher Irving Selikoff urging him to seal parts of his research.

Lowery asked Castleman if he ever asked Selikoff not to disclose portions of his research in a memorandum.

Castleman said he recognized the memorandum only from a previous allegation in a trial in 2010, and added that if it had actually come from him, it likely would have had a signature and a letterhead, which it did not.

"I have no memory of writing this and I don't recognize it," Castleman said.

The memorandum in question was allegedly written on Nov. 5, 1979, and proposes the idea that attorney Ron Motley, who founded the Motley Rice law firm and passed away last year, believed defense lawyers were attempting to avert liability by showing that insulators knew of the asbestos-related risks of their jobs.

Castleman said during his testimony that he worked with Motley's firm, but never testified on his behalf.

The letter goes on to suggest that defendants would try to obtain questionnaire materials used in his studies in order to pinpoint where the workers first became aware of the dangers.

"Ron and other plaintiffs lawyers are afraid that some of the men would have answered with 20-20 hindsight, recalling vaguely that 'I heard something back in the early 40s,'" the letter stated.

"Discovery of each statements in writing, even though made without much care and without any knowledge that rights to compensation might be jeopardized, without any consultation with their attorneys, could throw out individual claims," it continued, "further, a significant number of such statements pre-1964 would hurt the state-of-the-art case for all the plaintiffs."

Aside from the brief interruption, Castleman began his testimony with the history of knowledge relating to asbestos and health risks.

Under questioning by plaintiff attorney Frank Wathen, he testified that the first published article about asbestos and its hazards in the English language was a government document in 1898 submitted to the British Parliament.

"Where (asbestos particles) are allowed to rise and remain suspended in the air of a room, in any quantity, the effects have been found to be injurious, as might have been expected," the article stated.

Castleman said that prior to the 1930s, asbestos articles focused on minors and factory workers making the products. Then in the early 1930s asbestos disease cases spread to those who used the asbestos-containing products and clerical workers in asbestos factories.

In 1946, maximum allowable concentrations, later called threshold limit values, were established, which suggested five million particles of asbestos dust per cubic foot of air or less was acceptable.

The threshold was merely advised rather than required, and was based on studies concluding that workers exposed to a greater concentration of asbestos had an increased risk of developing disease.

Castleman, who received a doctorate in public health, said five million particles per cubic foot appears like regular air, adding that if workers are exposed to visible dust clouds then the concentration is at dangerous levels. While no exposure is necessarily considered safe, corporations needed obtainable standards that were technologically possible.

Castleman added that there would have to be 50 to 60 million particles per cubic foot of air in order to appear hazy, which is roughly 10 times greater than the advised amount.

During cross examination by Lowery, he questioned Castleman on the leniency of the threshold, which is presented as a tentative placeholder until more information on health hazards involving asbestos is available, but it was not a standard law.

"It wasn't the law of the land and it wasn't taken seriously as far as I can tell," Castleman said.

"So we can add the state Legislature to the list of corporations who let these people die, correct?" Lowery asked in response.

"It sounds like there's a hint of conspiracy there," he added.

By the 1950s, articles linking asbestos exposure and cancer development made their way to the general public through magazines and newspapers.

However, warning labels were not required by the government and big companies would be at a "competitive disadvantage" by including warning labels on their products, Castleman said.

"I call it the Wild Wild West Era," Castleman said.

During cross examination, Castleman recognized that studies as early as 1930s attempted to establish safety standards when working with asbestos, including wetting the mineral to avoid dust and proper respiratory protection.

Lowery also addressed two studies that specifically said gaskets are not hazardous.

He first presented the Fleischer Drinker study from 1946 that focused primarily on Navy ships to determine if people working with pipe covering had an increased risk of asbestos-related illness.

Castleman pointed out, however, that a disclaimer at the bottom of the front page clarifies that the opinions are not to be construed as those of the Navy.

Lowery then brought up a 1971 P.G. Harries article focusing on an approach to improving asbestos exposure in the Navy.

Castleman found the ideas inconsistent but couldn't confirm their accuracy.

Was Crane Co. aware of the hazards?

During Castleman's testimony, Wathen switched gears and focused on Crane Co.'s advertising methods beginning in the 1940s, listing a number of magazines and articles addressing asbestos dangers in which Crane Co. provided advertisements for their products.

Castleman testified that he agrees it is reasonable to assume Crane Co. was not unaware of asbestos hazards and that it was reasonable to provide warnings.

"It was reasonable in the sense that that's what these workers would have expected to be done," he said.

During cross examination, Castleman agreed there is no evidence that Crane Co. received the magazines in which they advertised.

An article from 1944 and another from 1946 were shown to the jury as examples of the magazines Crane Co. advertised in, both of which discussed asbestos along with a number of other industrial toxins. Neither of the articles connected asbestos to cancer.

However, he added that he would be "amazed" if Dr. Andrew Harvey didn't read the articles. Harvey was Crane Co.'s industrial physician at the time.

Lowery turned the tables on Castleman bringing up some of the articles he wrote, asking him to name just one other article in those journals. Castleman testified that couldn't remember those articles now - years later - but that he probably read them at one point.

What about the Navy?

During cross examination, Lowery then switched gears to the Navy's knowledge of the health risks asbestos-containing products posed for employees.

Castleman began by pointing out that in his studies, he was specifically interested in the Navy's documentation of its awareness of asbestos hazards, unconcerned with the products used aboard the ships and when.

He said the Navy knew of asbestos dangers as early as 1943 and was looking for ways to minimize dust accumulation.

Lowery suggested during questioning that the Navy has complete control aboard its vessels and asked if there was nothing Crane Co. did that the Navy did not already know pertaining to the hazards.

Castleman agreed, but said he doesn't believe everyone aboard the ships knew about the potential asbestos dangers.

Ultimately, though, Castleman contends that the sellers or manufacturers of the products understand their hazards better than the buyer. The manufacturer knows how the product is intended to be used and knows that forms of testing should be done, he said.

"If they have the knowledge that the dust is lethal, then they know all the ways their product could generate dust," he continued.

Industrial hygienists and physicians can attempt to understand products, but they wouldn't know them like the manufacturer, Castleman said.

"Nobody knows better than the manufacturer how the products are used," he said.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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