Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN __________________________________________________ RAVON OWENS, JR., Plaintiff, -vs- CASE NO. 07-CV-0441 AMERICAN CYANAMID COMPANY, et al., Defendants. __________________________________________________ DEPOSITION OF BRIAN MAGEE, PhD, was taken at the instance of the Plaintiff, under and pursuant to the provisions of the Federal Rules of Civil Procedure, and the acts amendatory thereof and supplementary thereto, before me, KATHY A. HALMA, Registered Professional Reporter and Notary Public in and for the State of Wisconsin, at the law offices of Morris, Manning & Martin, LLP, 3343 Peachtree Road, NE, Atlanta, Georgia, on the 13th day of July, 2017, commencing at 9:00 o'clock in the forenoon. Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 13, 2017 A P P E A R A N C E S FOR THE PLAINTIFFS: MOTLEY RICE, LLC MS. FIDELMA FITZPATRICK 55 Cedar Street, Suite 100 Providence, Rhode Island 02903 (401)457-7726 ffitzpatrick@motleyrice.com FOR THE DEFENDANT ATLANTIC RICHFIELD COMPANY (TELEPHONICALLY): ARNOLD & PORTER KAYE SCHOLER MR. MATTHEW D. GRANT 250 West 55th Street New York, New York 10019-9710 matthew.grant@apks.com (212)836-8000 FOR THE DEFENDANT SHERWIN-WILLIAMS COMPANY: JONES DAY MS. JENNIFER B. FLANNERY 1420 Peachtree Street, NE Suite 800 Atlanta, Georgia 30309-3053 jbflannery@jonesday.com (404)581-3939 FOR THE DEFENDANT ARMSTRONG CONTAINERS: MORRIS, MANNING & MORRIS, LLP MR. JEFFREY K. DOUGLASS MR. BENJAMIN WARLICK (Telephonically) 3343 Peachtree Road, NE Atlanta, Georgia 30326 jdouglass@mmmlaw.com bwarlick@mmmlaw.com (404)504-7793 Page 254 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 3 4 5 6 July 13, 2017 FOR THE DEFENDANT AMERICAN CYANAMID (Telephonically): GIBSON, DUNN & CRUTCHER, LLP MR. RICHARD W. MARK 200 Park Avenue New York, New York 01066 rmark@gibsondunn.com (212)351-4000 FOR THE DEFENDANT E. I. DUPONT de NEMOURS (Telephonically:) 7 8 9 10 McGUIRE WOODS, LLP MR. STEVEN R. WILLIAMS Gateway Plaza 800 East Canal Street Richmond, Virginia 23219-3916 swilliams@mcguirewoods.com (804)775-1141 11 ALSO PRESENT: 12 LAURA HOLCOMB, Motley Rice. 13 14 15 16 17 18 19 20 21 22 23 24 25 I N D E X BRIAN MAGEE By Ms. Fitzpatrick..................................258 By Mr. Douglass.....................................397 By Ms. Flannery.....................................309 E X H I B I T S Number 32 Deposition Transcript; 5-30-17...........258 Number 33 Dr. Brian Magee 7-10-17 Response to Plaintiffs' Attorney's Requests..........259 Number 34 Lead Smelter Sites.......................259 Number 35 Brochure: Be Lead Safe: AT HOME; City of Milwaukee Health Department......267 Page 255 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Number 36 2 3 Excerpt: July 13, 2017 City of Milwaukee Website Lead Awareness and Drinking Water Safety......272 Number 37 4 Milwaukee News: Milwaukee Faces Daunting Costs with Lead Water Pipes.....292 5 Number 38 Sifuentes C-PLF-0000390 to 440...........309 6 Number 39 Lead Inspection Report; 1657 South 32nd..309 7 Number 40 Notes re Inspection Report...............316 8 Number 41 Sifuentes Notes..........................317 9 Number 42 Sifuentes Report Notes...................317 10 Number 43 Sifuentes Heath Rebuttal.................318 11 Number 44 Compilation of Color Photographs.........351 12 Number 45 Notes re Owens...........................354 13 (The original transcript was retained by Attorney Fitzpatrick.) 14 15 (The original exhibits were retained by the court reporter and attached to the original transcript. 16 Copies were attached to all copy orders.) 17 18 19 20 21 22 23 24 25 Page 256 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 TRANSCRIPT OF PROCEEDINGS 2 MS. FITZPATRICK: 3 behalf of the plaintiffs. 4 5 MR. DOUGLASS: MS. FLANNERY: MR. WARLICK: Ben Warlick also for Armstrong. 10 MS. FLANNERY: 11 MR. MARK: 12 On the phone? Richard Mark for American Cyanamid Company. 13 14 Jennifer Flannery for the Sherwin-Williams Company. 8 9 Jeff Douglass for Armstrong Containers. 6 7 Fidelma Fitzpatrick on MR. GRANT: Matthew Grant for Atlantic Richfield Company. 15 MS. FITZPATRICK: 16 MR. WILLIAMS: Yes, Steve Williams for MS. FLANNERY: Just as a preliminary 17 18 Anyone else? DuPont. 19 matter, can we agree that an objection by one 20 defendant is good for all? 21 MS. FITZPATRICK: 22 MS. FLANNERY: 23 MS. FITZPATRICK: 24 BRIAN MAGEE, PhD, called as a witness 25 We can. Thank you. You are welcome. herein by the Plaintiff, after having been first Page 257 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 duly sworn, was examined and testified as follows: 2 3 July 13, 2017 EXAMINATION BY MS. FITZPATRICK: 4 Q It's nice to see you again. 5 A Hello. 6 MS. FITZPATRICK: Before we get into the 7 meat of this, there's a couple of things that I 8 want to go ahead and mark on the record. 9 going to mark as Exhibit 32 the transcript of 10 I'm your deposition that was taken on May 30th. 11 (Exhibit 32 was marked.) 12 MS. FITZPATRICK: Since your deposition 13 I received some documents and some spreadsheets 14 from your counsel in the case, so let's go ahead 15 and mark as Exhibit 33 a document titled, 16 "Dr. Brian Magee July 10, 2017 Responses to 17 Plaintiffs' Attorney's Requests." 18 THE WITNESS: It looks authentic. 19 MS. FITZPATRICK: Well, that's good, 20 because your lawyers gave it to me, so I'm glad 21 that it is. 22 So that's marked as Exhibit 33. And 23 then we will mark as Exhibit 34, these are copies 24 of some spreadsheets that were also provided to 25 me. Page 258 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 MR. WARLICK: Just to be clear, what you 2 have is substantively the same as what we sent 3 you a few days ago, but we made some tweaks to 4 make it print a little better. 5 MS. FITZPATRICK: 6 Is there any change in substance? 7 THE WITNESS: No data changes. Just 8 highlighted it and made sure the lines showed due 9 to the printer set so that it looks nicer. 10 MS. FITZPATRICK: 11 as Exhibit 34. 12 13 14 And we will mark that (Exhibits 33 and 34 were marked.) BY MS. FITZPATRICK: Q If we can turn to Exhibit 33, you had provided -- 15 In response to Issue 1 there was a statement that 16 you made in your prior deposition that, quote, 17 "These same agencies said years ago that paint 18 was the main source. 19 much more complicated than that." 20 at Page 247 of your deposition, correct? 21 A 22 23 And that was I do not know what page it is at, but I can check real quick, if that's necessary. Q 24 25 They are now saying it's Okay. It just said in your notes it was P 247. I assumed that was from your deposition. A Yes, that seems correct. Page 259 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q Okay. July 13, 2017 And then you provided me with some 2 citations, one from 2008, one from I think 2012 3 that you believe support your opinion that 4 government agencies are saying that lead 5 poisoning is much more complicated than solely 6 paint. 7 I'm going to ask you to look at Page 131 8 of your deposition. 9 A Okay. I'm there. 10 Q Okay. I asked you in your deposition what you 11 believed to be the primary or major source of 12 lead poisoning for children in Milwaukee, and you 13 responded to me that there is no primary source. 14 Many studies comings out of Health Departments 15 and CDC and EPA and HUD, all of these agencies 16 have in recent days been rethinking their views 17 from the past that lead paint was the main 18 source. 19 in my report show that they consider drinking 20 water to be much more significant than they used 21 to think it was, as well as other sources. 22 And many articles that I have included Now this had come after a series of 23 questions where I had asked you about a Milwaukee 24 or Wisconsin Department of Health 2014 25 publication that indicated that lead-based paint Page 260 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 was the primary source of lead poisoning for 2 children in Milwaukee. 3 Do you remember discussing that with me? 4 A I do not. 5 Q We did. We discussed a lot of things. I'm trying to see if I can figure out 6 what exhibit it was. 7 excuse me, no. 8 It was actually Page 62. 9 A 10 11 It was Exhibit No. 61. It was Exhibit No. 16 on Page 61. I'm afraid I don't see reference to an exhibit on Page 61. Q 12 You are right. It looks like it's actually on Page 62. 13 A Okay. 14 Q Do you remember we discussed that? 15 A Well, it appears that we discussed it from the 16 17 Or, record. Q Okay. And if you look at page -- go back now to 18 Pages 134 to 135 of your transcript. What I 19 asked you is, "Now looking at what's before you 20 as Exhibit 16, that's the report on Childhood 21 Lead Poisoning in Wisconsin, and that's done by 22 the Wisconsin Department of Health Services. 23 you look at Page 6 of that report, it says right 24 at the top, 'Lead-based paint is the primary 25 source of lead exposure in children's If Page 261 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 environments in Milwaukee.' Do you disagree with 2 the Milwaukee Department of Health?" 3 What your answer was is, "I disagree 4 this is true in 2017. 5 2014." 6 It may have been true in So with that as background, what I would 7 like to know is if you can identify for me any 8 study that has come out of the CDC since 2014 9 that indicates that the CDC does not believe that 10 lead paint is the primary source of high-dose 11 lead exposure to children? 12 A I don't believe any of the reports use the 13 specific language that you just stated. 14 will talk about lead levels in children, but you 15 put in the clause "high dose." 16 repeat that. 17 way. 18 Q They If you'd like to I don't believe they say it that Can you point me to any study or paper that has 19 come out of the CDC that says that lead-based 20 paint is not the primary source of lead exposure 21 to children in the United States between 2014 and 22 the present? 23 A As we sit here today, probably not. Many of the 24 papers do say that it's the primary source in the 25 reports, but many reports that I have read also Page 262 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 do say different things in different ways. They 2 will say, "Significant sources include X, Y, Z," 3 or they may say, "We still think lead-based paint 4 is very important, but other sources that we had 5 not considered as being so important years ago 6 seem to be more important now." 7 Q Okay. 8 A But I would have to do a lot of homework to 9 10 actually give you citations. Q But I'd like to focus in on your answer. You 11 said that you disagree with the statement 12 lead-based paint is a primary source of lead 13 exposure in children's environments in Milwaukee. 14 You disagree that that statement is true today. 15 You stated that it may have been true in 2014. 16 So what I'm trying to understand is what 17 is the basis for your opinion that that statement 18 is not true in 2017? 19 relying on or studies are you relying on? 20 A What documents are you In recent years, 2015, 2016, probably even 2017, 21 the issue of lead exposure to children from 22 drinking water in Milwaukee has been very big 23 news, and we have got the Health Commissioner and 24 various of the officials saying, "We have a big 25 problem here with water." Page 263 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 Now have they come out and said, "We no 2 longer consider lead paint to be our primary 3 goal, we need to shift to water," perhaps not, 4 but they are shifting their focus from just 5 focusing on lead-based paint to taking all of the 6 potential sources into account to a greater 7 degree now. 8 9 Q Okay. So here's what I need from you. I need you to tell me not what your opinion is, but I 10 need you to cite to me the studies that you are 11 relying on for that opinion, and specifically 12 your opinion was that it is not true that 13 lead-based paint is the primary source of lead 14 exposure in children's environments in Milwaukee, 15 that that is not a true statement today. 16 17 Can you point me to the studies that you rely on to support that statement? 18 MR. DOUGLASS: 19 THE WITNESS: Object to form. The study that I submitted 20 to you just a few days ago goes into great, great 21 detail about all of the many sources of lead 22 exposure to children everywhere to a much greater 23 degree than they have in the past. 24 cite this as showing a sea shift in public health 25 authority's thinking about lead exposure to So I would Page 264 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 3 July 13, 2017 children. BY MS. FITZPATRICK: Q Okay. What I would like you to focus on, though, 4 is you said that there was a change between 2014 5 and 2017. 6 document is a 2008 article and a 2012 article. 7 Neither one of these articles says that 8 lead-based paint is not the primary source of 9 lead exposure to children, do they? 10 A What you have cited to me in this Can you tell me what 2012 document you are 11 talking about, because all I see here is a 20 -- 12 2008 document. 13 Q You have Brown and Margolis, 2012. 14 A Well, that's in my report. I'm just citing the 15 documents from the report. I see that. 16 give you a specific citation as we sit here 17 today. 18 Q Okay. I cannot So you don't have or know of any study or 19 statement that's come out of the CDC between 2014 20 and 2017 that states that lead-based paint is not 21 the primary source of lead exposure to children 22 in the United States, correct? 23 A I cannot recall a specific statement that says 24 that -- a specific document that gives that 25 specific statement. Page 265 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q Okay. July 13, 2017 Can you remember any document in which the 2 EPA states that lead-based paint is no longer the 3 primary source of lead exposure to children in 4 the United States? 5 A I can find for you from my records many documents 6 that show that years ago there would be a large 7 amount of text in the document from all of these 8 agencies that said lead paint is the only thing 9 we need to focus on, and either no discussion 10 would be presented of soil or drinking water or 11 other sources, or just a very small, you know, 12 one sentence they would say, "And other things 13 can also add exposure." 14 In recent years many reports like this 15 one from 2008 go into great, great detail to give 16 as many words to talk about the sources other 17 than lead-based paint. 18 quantitation. 19 old reports, they paid lip service to other 20 sources. 21 into great detail about how everything is 22 important, not just lead-based paint. 23 what I can give you. 24 25 Q Okay. So it's a matter of It's a matter of you look at the You look at the new reports, they go That's I understand that there are other sources of lead. We have discussed that. But what I'm Page 266 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 trying to get at is what is widely recognized in 2 the public health community as the primary source 3 of lead exposure for children. 4 is not true that lead-based paint is the primary 5 source of lead exposure for children in 6 Milwaukee. 7 A You said that it What is the primary source? My opinion is that the sources to any child are 8 specific and vary. 9 so it is very difficult to say that there is a 10 primary source. 11 MS. FITZPATRICK: 12 can help you out. 13 Exhibit 35. 14 15 16 There are many sources, and Okay. Well, maybe I Can we mark this as (Exhibit 35 was marked.) BY MS. FITZPATRICK: Q I'm showing you a brochure that's put out by the 17 Milwaukee Health Department, and you will see in 18 the bottom, right corner it comes from November 19 of 2016. Okay? 20 A Yes. 21 Q If you look at lead paint, it says, "Most 22 children are poisoned when lead paint cracks, 23 chips or peels, especially around windows and 24 doors. 25 that can get onto children's hands or toys. This creates dust or small paint chips It Page 267 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 only takes a small amount of lead dust for a 2 child to be poisoned. 3 before 1978, it most likely has lead paint." 4 If your home was built Now this is a document from the 5 Milwaukee Department of Health in late 2016 that 6 identifies that most children are poisoned from 7 lead-based paint. 8 disagree with what the City of Milwaukee Health 9 Department stated in this brochure? Do you have any reason to 10 MR. DOUGLASS: 11 THE WITNESS: Object to form. This specific statement 12 does not say that most children in Milwaukee who 13 have blood leads above a certain level got them 14 because of being exposed to paint from cracks, 15 chips and peels. 16 says most children are poisoned. 17 so exposed, you may be affected in a way that is 18 listed here. 19 than how you read it. 20 21 22 It's a general statement. So if you are So I read this slightly differently BY MS. FITZPATRICK: Q Does it say that most children get poisoned by paint? 23 MR. DOUGLASS: 24 THE WITNESS: 25 This Object to form. Well, I'm reading it differently than you are, I'm afraid. Most Page 268 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 children who get exposed in this way may have an 2 adverse outcome. 3 83 percent of children in Milwaukee who have 4 blood leads above X are due to this root. 5 give all three. 6 7 This doesn't say 73 or They BY MS. FITZPATRICK: Q I'm not asking you that, sir. You told me that 8 it was untrue, that it was false, that the 9 primary source of lead poisoning in Milwaukee in 10 2017 is lead-based paint. 11 study that says that. 12 You can point me to no So now I'm showing you something that 13 was put out by the Milwaukee Department of Health 14 that says most children are poisoned when lead 15 paint cracks, chips or peels, especially around 16 windows or doors, and you are telling me that you 17 don't think that that means that most children 18 are getting poisoned by deteriorated lead-based 19 paint. That doesn't say that to you? 20 A This is a very vague statement, in my opinion. 21 Q Okay. 22 A It doesn't say most children in Milwaukee who 23 have blood leads above X have them due to Y. 24 Q But I'm not asking you that question, sir. 25 A Well, if you want me to -- Page 269 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q July 13, 2017 I'm asking you the question. Well, let me ask 2 you. 3 Milwaukee -- excuse me -- the Wisconsin 4 Department of Health Services is wrong when it 5 says that lead-based paint is the primary source 6 of lead exposure in children's environments in 7 Milwaukee? 8 incorrect statement? 9 12 Do you still believe that that's an MR. DOUGLASS: 10 11 Do you stand by your answer that the THE WITNESS: Object to the form. Restate that, please. BY MS. FITZPATRICK: Q Okay. The Milwaukee -- the Wisconsin Department 13 of Health Services stated, quote, "Lead-based 14 paint is the primary source of lead exposure in 15 children's environments in Milwaukee." 16 You told me that statement was not true 17 18 today. A Do you stand by that answer? I should probably modify that answer to say the 19 view of the Milwaukee Health Department and other 20 Health Departments in other places has been 21 changing recently to place less emphasis on 22 lead-based paint as the primary source and 23 placing more emphasis on others. 24 more correct statement of my opinion. 25 Q That would be a But what I'm trying to get at, sir, is not Page 270 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 whether there are other sources of lead in the 2 environment, which we have already discussed and 3 we already agree there are. 4 is what is the primary source of children's blood 5 lead levels in Milwaukee, Wisconsin? 6 MR. DOUGLASS: 7 What I'm asking you Objection, asked and answered. 8 THE WITNESS: 9 source. 10 What is the primary There are documents that will say exactly what you are saying. 11 MS. FITZPATRICK: 12 THE WITNESS: I agree with that. Okay. But I have other documents 13 that say our view has become more nuanced than it 14 was five or ten years ago. 15 at all about soil or water, and we are finding 16 now that more and more cases cannot be explained 17 by lead-based paint. 18 find no lead-based paint hazards. 19 childhood lead exposure has become more 20 complicated in Milwaukee, as well as other 21 places. 22 23 We used to not worry They go in all the time and So the view of BY MS. FITZPATRICK: Q All right. Since you said that like 15 times in 24 response to completely different questions, I'm 25 going to go back to my question. Page 271 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 I'm looking at the relative risk posed 2 to children in Milwaukee from lead-based paint 3 versus lead in water. 4 children every year? 5 MS. FLANNERY: 6 THE WITNESS: 7 8 9 Which one poisons more Object to form. I don't personally know which once poisons more children every year. BY MS. FITZPATRICK: Q Which is the most common source of lead for 10 children in Milwaukee, lead-based paint or lead 11 in water? 12 MR. DOUGLASS: 13 THE WITNESS: Object to the form. My opinion is that it's 14 very complicated, and that all sources are 15 important. 16 children are clearly affected by lead-based paint 17 primarily and some children are affected less so 18 and more so from other sources. 19 20 21 And depending upon the child, some (Exhibit 36 was marked.) BY MS. FITZPATRICK: Q I'm showing you a printout from the Milwaukee 22 Water Works Lead Awareness and Drinking Water 23 Safety. 24 website on July 10th, so just a few days ago. 25 want you to look at the 1, 2, 3, the fourth full It's come off the City of Milwaukee I Page 272 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 paragraph. 2 Now you have looked at this website 3 before, haven't you? 4 A I believe I have seen this, yes. 5 Q Okay. And this does identify lead in water as a 6 potential source of lead exposure for all 7 residents in the City of Milwaukee, correct? 8 A 9 I assume so, because they wouldn't be putting it on the website, if 10 11 I have to read it again. they weren't saying that. Q It says in the fourth paragraph, "Years ago lead 12 was used in paint, plumbing and other products. 13 The most common source of lead is from paint in 14 older homes built before 1978." 15 Do you disagree with the Milwaukee Water 16 Works that the most common source of lead is from 17 paint in older homes before 1978? 18 A I do not disagree that they say this. 19 Q Do you disagree with this statement? 20 A I do. 21 I disagree with the statement. is a source. Clearly it It is an important source. 22 Q Is it the most common source? 23 A I have to disagree that it's the most common 24 25 source. Q Okay. Page 273 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 A 2 3 July 13, 2017 It is certainly an important source among other sources. Q Okay. Can you point me to any study or document 4 from any government agency at all that says that 5 lead-based paint is not the most common source of 6 lead? 7 that opinion, your opinion that the Milwaukee 8 Water Works is wrong when they stated this? Can you show me anything that supports 9 A I cannot as I sit here today. 10 Q Okay. And you can't point me to any report from 11 any government agency that establishes that the 12 Wisconsin Department of Health Services was wrong 13 when it said that lead-based paint is the primary 14 source of lead exposure in children's 15 environments in Milwaukee? 16 any document or study that contradicts that 17 statement, correct? 18 A 19 20 21 You can't point me to What are you referring to there? What we were talking about earlier? Q Your testimony at Pages 134 to 135 of your last deposition. 22 MR. DOUGLASS: 23 THE WITNESS: Object to the form. Primary source. I think 24 it gets to the definition of primary. What I'm 25 seeing in the literature is that the change in Page 274 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 the way the programs are being run is that they 2 are seeing more and more cases that are not 3 explained by lead-based paint. 4 51 percent? 5 very large number of children who might be being 6 affected by the other sources more so than the 7 lead-based paint. 8 9 Perhaps. Might it still be But 49 percent is still a BY MS. FITZPATRICK: Q Can you show me a single study or give me any 10 basis for your statement that 49 percent of 11 children are poisoned from sources other than 12 lead-based paint? What is your basis for that? 13 MR. DOUGLASS: 14 THE WITNESS: Object to the form. 49 percent, 51, was simply 15 an example, but the Levin study does say that 16 they are seeing as many as 30 percent of the 17 cases of children with high blood leads that they 18 cannot explain by lead-based paint. 19 that there are not only other sources, but the 20 other sources are quantitatively significant. 21 22 That shows BY MS. FITZPATRICK: Q Okay. But, sir, I'm not asking you if there are 23 other sources. I don't know why you are arguing 24 that point with me. 25 sources. We know that there are other But we are looking at the relative Page 275 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 contributions of these different sources to blood 2 lead levels. 3 shown you something from the Wisconsin Department 4 of Health Services. 5 from the Milwaukee Water Works. 6 something from the City of Milwaukee Department 7 of Health. 8 And you reject the propositions that are set 9 forth by those government agencies and you go 10 back to a 2008 study, and it's the only thing 11 that you can point me to. 12 What I don't understand is I have I have shown you something I have shown you Those are from 2014, 2016 and 2017. Why won't you believe the Wisconsin 13 Department of Health? 14 them? 15 MR. DOUGLASS: 16 THE WITNESS: Why don't you believe Object to form. Well, I have looked at 17 lots of children and I have looked at lots of 18 houses, and I have seen lots of situations where 19 lead-based paint cannot explain the child. 20 an important source? 21 government says it's primary. 22 they say. 23 opinion that when we look at a single person, we 24 have to consider multiple sources. 25 It clearly is. Fine. Is it The That's what I don't think that changes at all my BY MS. FITZPATRICK: Page 276 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 Q I'm not asking you that. 2 A And you can't assume every child who has an 3 elevated blood lead has it because of lead-based 4 paint. 5 Q Sir, I'm not asking you that. I'm asking you a 6 very basic proposition. Is lead-based paint the 7 primary source of elevated blood lead levels in 8 the United States? 9 2008 article that you are citing here. 10 "Deteriorating lead paint and 11 contaminated dust in soil are the primary, but 12 not only, causes of EBLs among United States 13 children." 14 that's right?" Let me read to you from the Why can't you just say to me, "Yes, 15 MR. DOUGLASS: 16 MS. FITZPATRICK: 17 MR. DOUGLASS: 19 THE WITNESS: 20 22 23 Why are you fighting me so much on this? 18 21 Object to the form. Object to the form. I have no reason to disbelieve that statement. BY MS. FITZPATRICK: Q Do you have any reason -- so let me ask you this. Do you retract your statement that you 24 disagree that the Wisconsin Department of Health 25 Services statement, quote, "Lead-based paint is Page 277 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 the primary source of lead exposure in children's 2 environments in Milwaukee?" 3 previous answer that you disagree that that 4 statement is true in 2017? 5 A The landscape is changing. Do you retract your That statement may or 6 may not be true when they issue the next report, 7 because the landscape is changing. 8 primary? 9 Q 10 11 Okay. Perhaps. Is it still I don't know. Well, you said, "I disagree that this is true in 2017." A Maybe I should amend that to say my opinion is 12 that this may not be true in 2017 because the 13 focus on other sources, such as soil and water, 14 are growing in the minds of all of the public 15 agencies. 16 alternate sources and seeing that they are more 17 important than they thought they were in the 18 past. 19 there. 20 Q They are focusing more and more on the That's the main thing I was trying to say Can you point me to support for your statement 21 that the CDC is looking more and more at 22 alternate sources? 23 statement? 24 25 A What is the basis for that Well, some of that is in what we just sent you. One of the statements says, I believe, that most Page 278 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 lead -- childhood lead programs do not even 2 analyze drinking water, and they are missing 3 probably many important exposures. 4 say that. 5 Q I have no idea. 6 A I believe I have cited that. 7 Q Who is "they?" 8 A This is the Levin article, 2008. 9 Q No, I'm asking you the CDC. 10 Where does it They say -- I'd like you to focus specifically -- 11 A It has CDC authors. 12 Q I'm asking you an official statement from the 13 CDC. I'd like to see an official statement from 14 the CDC or document from the CDC between 2014 and 15 2017 that supports your theory that agencies are 16 moving away from focus on lead-based paint as the 17 primary source to looking at other sources. 18 A I can't as I sit here today. 19 Q Can you point me to anything from the EPA that 20 does that? 21 22 23 MS. FLANNERY: Objection, asked and answered. THE WITNESS: I probably can, but I do 24 not have all my hundreds of documents that I have 25 read here with me. Page 279 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 BY MS. FITZPATRICK: Q But this is my only chance to ask you questions. 3 We asked for backup for your statement. 4 reference to a 2008 article, an article that is 5 nine years old. 6 A Um-hum. 7 Q We're on day two of the deposition. I got a I need to 8 know what you are relying on, if there is 9 anything, for your belief that the EPA is moving 10 away from the view that lead-based paint is the 11 primary source of lead exposure for children and 12 instead focusing on other sources. 13 What is the basis for that statement? 14 MR. DOUGLASS: 15 THE WITNESS: Object to form. I would not say they are 16 moving away from worrying about lead-based paint. 17 I would say that they are placing more and more 18 emphasis on the totality of children's exposure, 19 and so they are paying more attention to soil, 20 water and others instead of exclusively focusing 21 on lead-based paint. 22 23 BY MS. FITZPATRICK: Q The basis for that, sir. What is the basis? 24 Show me the documents that you have relied on for 25 that statement. What are they? Page 280 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 A I can probably find some, but I can't cite them. 2 Q Look through your reference material, sir. 3 4 is the only chance I get. A 5 6 This I do not have the reference materials with me today. Q This is the only chance -- This is day two. 7 is the only chance I get to ask you these 8 questions. 9 on so I can question you about it. 10 This I need to know what you are relying Sitting here today, can you think of 11 anything that supports your statement about what 12 you believe or think the EPA is or isn't doing 13 right now? 14 A 15 16 I recall documents on my server back in the office, but I cannot cite them to you today. Q Okay. And you realize if you can't cite them to 17 me today on day two of your deposition, we will 18 be moving to exclude you from being able to rely 19 on them at trial because you can't tell me what 20 you are relying on today. 21 MR. DOUGLASS: 22 THE WITNESS: Object to the form. I find it hard to believe 23 that every witness has to produce every citation 24 for every statement they make. 25 BY MS. FITZPATRICK: Page 281 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q July 13, 2017 I'm looking for one. I'm not even looking for 2 every one. 3 generalizations about the focus of the public 4 health community in the lead poisoning crisis, 5 and you can't show me a single, solitary document 6 that backs up these broad, sweeping claims. 7 have to tell me what you are relying on. 8 your job. 9 You are making broad, sweeping MS. FLANNERY: THE WITNESS: 11 anything in my report, per se. 12 Margolis for sure. 14 Q I do cite I asked for EPA. I want an EPA publication. Do you have one? A 17 18 Let's see if there's BY MS. FITZPATRICK: 15 16 That's Objection, argumentative. 10 13 You Give me a moment. I'm afraid I can't give you an EPA citation as I sit here. Q I want you to go back to Page 131 of your 19 deposition. 20 many studies coming out of Health Departments and 21 CDC and EPA and HUD, all of these agencies, have 22 in recent days been rethinking their views from 23 the past that lead paint was the main source. 24 25 You indicated in your testimony that What study has come out of the CDC that indicates that it has been rethinking its view Page 282 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 from the past that lead paint was the main 2 source? 3 MS. FLANNERY: 4 Objection, asked and answered. 5 THE WITNESS: From CDC now, so not a 6 paper that has a CDC author? 7 are asking? 8 BY MS. FITZPATRICK: Is that what you 9 Q Well, that's what you said, coming out of CDC. 10 A Well, CDC authors get together with EPA, NIOSH 11 and so forth. 12 Q I would like a CDC study. 13 A One could say that that's coming from CDC. Well, 14 here's something that may be useful. CDC 2012 is 15 a document that Dr. Heath cited in her report, 16 and I took a look at that one because it's a 17 fairly new one. 18 CDC should emphasize the importance of 19 environmental assessments to identify and 20 mitigate lead hazards before children demonstrate 21 blood lead levels at or higher than the reference 22 value. 23 reduce environmental lead exposures in soil, 24 dust, paint and water before children are 25 exposed." They state, and I quote, "The And, B, adopt prevention strategies to Page 283 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q July 13, 2017 Sir, do you believe the CDC 2012 that you are 2 citing to is your support for your statement that 3 many studies coming out of Health Departments and 4 CDC and EPA and HUD, all of these agencies, have 5 in recent days been rethinking their views from 6 the past that lead paint was the main source? 7 you believe that CDC 2012 stands for the 8 proposition that lead paint is not the main 9 source of children's lead exposure? 10 A I'd have to reread it, but it clearly states that 11 there are many sources that need to be 12 considered. 13 Q Do Sir, could we focus on the issue at hand. It's 14 your statement that there are many studies coming 15 out of Health Departments and CDC and EPA and 16 HUD, all of these agencies have in recent days 17 been rethinking their views from the past that 18 lead paint was the main source. 19 want to talk about right now. 20 focus on that. 21 22 That's all I Okay? Please What studies from the CDC are you referring to there? 23 MS. FLANNERY: Objection, asked and 24 answered. He identified an article by CDC and 25 EPA authors for you already. Page 284 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 THE WITNESS: I'm basing that opinion on 2 reading a lot of articles over a 10, 15-year 3 period of time. 4 with me now. 5 years ago and I could put how many words are 6 there talking about paint and how many words are 7 talking about soil, and now let's do that by time 8 and make a graph, I could do that work. 9 lot of work. I don't have all those articles If I looked at articles from 10 It's a But I have not done that work. I'm 10 basing my opinion on my general knowledge of the 11 reading of the literature. 12 specific citation that I could put in front of 13 you. 14 15 BY MS. FITZPATRICK: Q 16 Maybe I should ask you this. A Yes. 18 Q Lines 18 to 19. "Many studies." 19 are you talking about? 20 me, please? 21 MR. DOUGLASS: 22 THE WITNESS: 23 25 Please look at Page 131 of your deposition. 17 24 So I do not have a What studies Can you identify them for Object to the form. Not as I sit here today. I have read hundreds of studies. BY MS. FITZPATRICK: Q So you don't know -- you can't sitting here today Page 285 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 identify a single study that has come out from 2 the CDC that indicates it's been rethinking their 3 views from the past that lead paint was the main 4 source? 5 one for me? 6 Sitting here today, you can't identify MR. DOUGLASS: 7 Objection, asked and answered. 8 MS. FITZPATRICK: 9 MS. FLANNERY: 10 Is that right? Objection, misstates his prior testimony, as well. 11 THE WITNESS: A study with a CDC logo on 12 it versus a literature article with CDC and 13 others, I cannot give you a citation as I sit 14 here today, no. 15 16 BY MS. FITZPATRICK: Q Can you give me a citation or indication or 17 identify for me any study from the EPA that 18 indicates that in recent days it has been 19 rethinking their views from the past that lead 20 paint was the main source? 21 A 22 23 24 25 Not as I sit here today. MR. DOUGLASS: Asked and answer. BY MS. FITZPATRICK: Q Can you identify for me any study from HUD that indicates that in recent days they have been Page 286 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 rethinking their views from the past that lead 2 paint was the main source? 3 A Again, from reviewing Dr. Heath's report, she 4 cited a HUD 2012 document, I pulled that out, I 5 took a look, and it has much, much discussion, 6 many, many statements about soil. 7 that part of the documentation. 8 cannot present to you all of the citations that 9 have formed my opinion. 10 Q Okay. I would call But, no, I So I can look at the HUD 2012 that Dr. 11 Heath relies on to see whether that indicates 12 that HUD is rethinking its view from the past 13 that lead paint is the main source? 14 MR. DOUGLASS: 15 THE WITNESS: Object to form. I would say, no, it's not 16 that easy. 17 documents and line them up and look at one from 18 2014 and 2012 and 2010 and 2008 and say, "Is the 19 language the same year after year." 20 they are talking more about soil now than they 21 did ten years ago. 22 have to be done to support the request that you 23 are giving me, and I did not do that work. 24 25 I would say you would have to get HUD Oh, look, That's the work that would BY MS. FITZPATRICK: Q I'm just asking you to explain your answer. You Page 287 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 said many studies, but you can't identify any for 2 me. 3 MR. DOUGLASS: Object to the form. 4 MS. FLANNERY: Objection, 5 mischaracterizes the testimony. 6 7 BY MS. FITZPATRICK: Q Is that right? If you would like to rely on CDC 8 2012 and HUD 20, I welcome that. Is there 9 anything else beyond those two that you think 10 support your statement that any Health 11 Departments or agencies are rethinking their 12 views from the past that lead paint was the main 13 source? 14 MR. DOUGLASS: 15 Objection, asked and answered. 16 MS. FITZPATRICK: 17 THE WITNESS: Yes, they exist. 18 cite them for you today. 19 literature over the years. 20 21 Beyond those two. I cannot I have read a lot of BY MS. FITZPATRICK: Q Okay. Has anything come out from the Wisconsin 22 Department of Health since 2014 indicating that 23 it is rethinking its view that lead-based paint 24 is the primary source of lead exposure for 25 children in Milwaukee? Page 288 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 A That I'm not sure of. I don't know. 2 Q Has anything come out from the Milwaukee 3 Department of Health that indicates the Milwaukee 4 Department of Health is rethinking its view that 5 lead paint is the main source of exposure for 6 children in Milwaukee? 7 A I just can't remember. 8 Q Now we had discussed last time your opinions 9 about the lead in water situation in Milwaukee. 10 Do you remember that? 11 A I do. 12 Q And at Page 132 of your deposition I asked you, 13 "Can you name for me two, three, four of the 14 papers that you rely on for an opinion that 15 drinking water is the major source of lead 16 poisoning for children in Milwaukee." 17 A What page? 18 Q I'm at Page 132. 19 MS. FLANNERY: 20 THE WITNESS: It's Line 2. I see that. 21 at the rest of it. 22 answer is, yes, I see that. 23 24 25 I'm looking I do see that, yes. So the BY MS. FITZPATRICK: Q And your answer was, "Page 18 of my report talks about the huge uproar in the City of Milwaukee Page 289 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 over the last few years about drinking water and 2 its significance to childhood blood lead levels," 3 and you have there, "Behm 2016 A and B." 4 Do you see that? 5 A I see it, yes, ma'am. 6 Q That's not a scientific study, is it? 7 MR. DOUGLASS: 8 THE WITNESS: 9 article. Object to the form. I believe that's a news On Page 18 I cite -- on Page 19 I cite 10 to Behm, Bence, Brown, Brown and Margolis, City 11 of Milwaukee 2006, EPA 1996, EPA 2008, EPA 2016, 12 Horton 2016, Hrodey, 2016, Johnson, et cetera. 13 14 BY MS. FITZPATRICK: Q Okay. Now Mr. Behm, who you cited in your 15 deposition, is a reporter for the Milwaukee 16 Journal Sentinel, right? 17 A 18 I'd have to check the citation list, but that sounds correct. 19 Q He's not a scientist, is he? 20 A I don't know. 21 Q Is he a toxicologist? 22 A I have no idea. 23 Q Okay. And a newspaper article alone is not 24 something that a toxicologist would rely on as 25 the basis of a scientific opinion, correct? Page 290 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 MR. DOUGLASS: 2 THE WITNESS: 3 4 5 Objection to form. I would disagree with that. BY MS. FITZPATRICK: Q You think the thing you should rely on for your 6 opinions about water are statements made by a 7 reporter in the Milwaukee Journal Sentinel and 8 not statements made by Wisconsin government 9 agencies who are invested on a daily basis with 10 the fight against lead poisoning? You would rely 11 on Mr. Behm before you would rely on those 12 agencies? Is that what you are telling me? 13 MR. DOUGLASS: 14 THE WITNESS: Object to the form. If a news article says the 15 head of the agency just stated at a press 16 conference today that we have got a big problem 17 with our drinking water, well, that's reporting 18 of a fact. 19 because public officials make statements that are 20 cited in those articles. 21 22 So, yes, news articles are useful, BY MS. FITZPATRICK: Q Okay. But even you are a scientist. You don't 23 rely on what a politician says to support your 24 scientific opinion, you look for data, facts and 25 studies, correct? Page 291 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 A July 13, 2017 I look for all pertinent facts. 2 MS. FITZPATRICK: Okay. Why don't we 3 look at what Mr. Behm wrote in the Milwaukee 4 Journal Sentinel. 5 6 7 (Exhibit 37 was marked.) BY MS. FITZPATRICK: Q Now this article arises from a plan in Milwaukee 8 where the Milwaukee Water Works was replacing 9 water mains, correct? 10 A Well, I have read a lot of news articles, so let 11 me see which one this one is. 12 it's about the replacement program. 13 Q Okay. It does look like And what we found or what was -- what he 14 reported on is that when the lead lines were 15 being disconnected and then reconnected, it led 16 to a temporary spike in the lead levels of water 17 in houses that were serviced by those lead lines, 18 correct? 19 A I do recall that general drift. 20 Q Okay. So, first of all, that didn't happen in 21 Mr. Sifuentes' case, Mr. Burton's case or 22 Mr. Owens' case, right? 23 where their lead lines had been disconnected and 24 reconnected leading to a temporary spike in lead 25 levels in their water, right? It's not a situation Page 292 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 MR. DOUGLASS: 2 THE WITNESS: 3 4 Object to the form. Probably that's correct. BY MS. FITZPATRICK: Q And you have got no evidence that any of the 5 water mains or any of the issues that are 6 discussed in the article that you rely on 7 actually happened in the 1990s and early 2000s in 8 any of these homes, correct? 9 MR. DOUGLASS: 10 11 12 THE WITNESS: Object to the form. That's correct. BY MS. FITZPATRICK: Q And, in fact, this is a problem that was being 13 identified in 2016 more than a decade -- almost 14 two decades after some of these lead poisonings 15 occurred? 16 MR. DOUGLASS: 17 THE WITNESS: 18 Object to the form. That was not a question. BY MS. FITZPATRICK: 19 Q Correct? 20 A Correct, yes. 21 Q Okay. And so the lead problem that Mr. Behm is 22 talking about in Milwaukee has no bearing and has 23 no relevance to Mr. Burton's case, Mr. Sifuentes' 24 case or Mr. Owens' case, correct? 25 MR. DOUGLASS: Can I stop you? Can we Page 293 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 just ask the question separately for the 2 plaintiffs rather than combining them? 3 4 5 MS. FITZPATRICK: Sure. BY MS. FITZPATRICK: Q The situation that's discussed here in 2016, the 6 current situation that you are alluding to, has 7 no bearing or relevance to Mr. Burton's case, 8 does it? 9 MR. DOUGLASS: 10 THE WITNESS: 11 12 13 Object to the form. I would disagree with that. BY MS. FITZPATRICK: Q Okay. Tell me how replacing -- disconnecting and 14 reconnecting lead lines in homes in 2016 has 15 anything to do with Mr. Burton's poisoning in the 16 early 2000s. 17 MR. DOUGLASS: 18 THE WITNESS: Object to the form. The reason that they moved 19 forward to do the replacements is to get rid of 20 the lead service lines that were already 21 themselves causing lead to enter the drinking 22 water in many Milwaukee homes. 23 they are doing this has relevance to the cases. 24 The specifics of what happened when they started 25 doing these replacements, you are correct, it So the reason Page 294 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 3 July 13, 2017 does not. BY MS. FITZPATRICK: Q And the reason that they are moving the lead 4 service laterals throughout the city at the same 5 time that they are doing the water lines is to 6 eliminate this temporary spike in the lead levels 7 of drinking water in the homes after those lead 8 service laterals were disconnected and 9 reconnected, correct? 10 A No. 11 Q Okay. "'The projects are on pause,' Milwaukee 12 Mayor Tom Barrett said, 'while Public Works and 13 health officials plan how they will work with 14 property owners to remove the lead service 15 laterals throughout the city.'" 16 What project is on hold? 17 A I'm sorry. Restate that. 18 Q "'The projects are on pause,' Milwaukee Mayor Tom 19 Barrett said, 'while Public Works and health 20 officials plan how they will work with property 21 owners to remove the lead service laterals 22 throughout the city.'" 23 A I don't have any reason to disbelieve that, but 24 the reason they are removing lead pipes anywhere 25 in the city is because the lead pipes themselves Page 295 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 cause lead to get into drinking water. 2 Q All right. 3 A Yes. 4 Q Okay. 5 6 July 13, 2017 Sir, did you read the article? Milwaukee was replacing water mains, correct? A Milwaukee was replacing water mains and realized 7 that they have tens of thousands of laterals that 8 are causing harm that also need action. 9 to look at all of the articles and all of the 10 11 You have information, not just one news article. Q Sir, it says here, "Simply proceeding with main 12 replacements in neighborhoods with lead laterals 13 would ignore evidence of the contamination caused 14 by cutting the lead pipe during the main 15 replacement." 16 That's what prompted this, is that there 17 was an increased contamination with lead when the 18 laterals were cut or disconnected and then 19 reconnected. Correct? 20 MR. DOUGLASS: 21 THE WITNESS: Object to the form. That may be what prompted 22 this specific action, but the reason the 23 Milwaukee Water Department is moving to remove 24 lead laterals, as well as lead mains, is because 25 lead pipes cause lead in drinking water in Page 296 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 3 July 13, 2017 children. BY MS. FITZPATRICK: Q Show me where you are getting that from. Show me 4 the basis of your opinion that they are removing 5 them simply because they are lead as opposed to 6 they are removing them because disturbing the 7 lead pipes during replacement of water lines is 8 elevating lead levels in homes temporarily 9 thereafter. 10 A Well, you have -- 11 MS. FLANNERY: 12 THE WITNESS: Object to form. Well, you have to read all 13 of these citations, and I do not have them all 14 with me. 15 got through FOIA requests to the Milwaukee Water 16 Works Department. 17 documents here. 18 one of them. 19 2004, Triantafyllidou 2006, Brown in 2011, 20 Edwards 2011, WDNR 2016, Wigderson 2016 and 21 others. 22 But I have tons of documents that we We have got many other We have to read each and every And we also have Thomas, EPA 1997, So there are a lot of documents in my 23 drinking water file, and there are all the 24 documents that have been cited throughout the 25 case that say that lead pipes are a source of Page 297 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 lead in drinking water, which is then a source of 2 exposure to lead in children who drink drinking 3 water. 4 lead pipes are an issue. 5 6 It has been known for many years that BY MS. FITZPATRICK: Q Sir, can you explain to me why you are so quick 7 and absolute that lead-based pipes for water are 8 a source of lead poisoning for children, but 9 struggle so mightily to acknowledge that 10 lead-based paint is a source of lead exposure in 11 children? 12 MS. FLANNERY: Objection. 13 MR. DOUGLASS: Objection, argumentative. 14 THE WITNESS: I have said many times 15 lead-based paint is clearly a source of lead 16 exposure to children, but that's on the record 17 and I want to get on the record that the others 18 are also important. 19 20 BY MS. FITZPATRICK: Q And you said it a lot of times, but I really just 21 need you to answer my questions so we can get out 22 of here, because we all just want to get out of 23 here. 24 25 Would you agree with me that the -- we discussed Flint, Michigan last time. The issues Page 298 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 in Flint, Michigan arose because there was -- the 2 water was not being treated to control corrosion 3 from lead for a certain period of time, correct? 4 A That's my understanding, yes. 5 Q And during that intervening several months the 6 average blood lead level or the percentage of 7 children in Flint, Michigan with blood lead 8 levels in excess of 5 micrograms per deciliter 9 went up about 1.6 percent, correct? 10 A I cannot cite you the numbers, but they were 11 talking average levels, although many children 12 did have much higher levels. 13 Q 14 15 You don't know that that came from water, though, right? A They are associated with houses that had 16 extremely high levels in the water. 17 say with 100 percent certainty? 18 ever say that. 19 were hundreds of times higher than the EPA's 20 criteria and the children had extremely high 21 levels in their blood, it's a pretty good -- with 22 a reasonable degree of scientific certainty it's 23 a pretty good guess that that caused it. 24 25 So can you Well, you can't But given that the lead levels MS. FLANNERY: Can we take a break pretty soon? Page 299 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 3 July 13, 2017 MS. FITZPATRICK: In two minutes, yeah. BY MS. FITZPATRICK: Q If you can say that for water, why can't you say 4 that children who are exposed to lead-based paint 5 that is hundreds of times higher in concentration 6 than what's been recognized by the Consumer 7 Product Safety Commission, why can't you say to a 8 reasonable degree of scientific certainty that 9 those children have been poisoned by paint? 10 11 12 MR. DOUGLASS: Object to the form. BY MS. FITZPATRICK: Q You appear to have a different standard for 13 judging the water versus -- water exposure versus 14 the paint exposure. 15 MR. DOUGLASS: 16 THE WITNESS: 17 18 19 Objection, argumentative. You ended with a statement, so say the question again. BY MS. FITZPATRICK: Q You said that it was sufficient for you to 20 determine, to a reasonable degree of scientific 21 certainty, that an anonymous child living in an 22 anonymous house without you having any 23 information about other sources of lead in that 24 home, that all you needed to know is that there 25 were lead levels that were hundreds of times Page 300 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 higher than the EPA's criteria and the children 2 had extremely high blood lead levels, that you 3 can say with a reasonable degree of scientific 4 certainty it's a pretty good guess that caused 5 it. 6 than you have used to analyze the exposures of 7 these children in these cases. 8 MR. DOUGLASS: 9 THE WITNESS: That's a completely different standard, sir, Why is that? Object to the form. That's a fair statement. 10 So let me restate that and say I don't know about 11 that particular child or even how many children 12 there were. 13 there are some children in Flint that had 14 significantly higher than 5, and, I mean, I don't 15 know, 10s, 20s, 30s, but they were very high 16 because they were sent off to the hospital and 17 they had high levels in their drinking water. 18 drinking water could have been the reason. 19 I would like to merely state that BY MS. FITZPATRICK: 20 Q And it also could have been paint? 21 A I wasn't there. 22 Q It could have been anything? 23 A Okay. 24 Q So let me go back to this, though. 25 So It could have been anything. The situation in Flint which was caused by river water that Page 301 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 wasn't treated to control the corrosion of toxic 2 lead from the pipes, that doesn't exist in 3 Milwaukee, correct? 4 A It did exist in Milwaukee in the 1990s, but I 5 don't believe it existed during the time period 6 of interest. 7 kids was '93, wasn't he? 8 do my homework here. 9 corrosion control problem and that was -- I think Well, hold on. I think one of the So I probably have to But they did have a 10 it's in my report. 11 problem was dealt with in '96. 12 MR. DOUGLASS: 13 minutes. 14 I think the corrosion control It's been a couple Why don't we take a break. MS. FITZPATRICK: 15 done. 16 question. 17 Because I'm not quite I would like to get an answer to my THE WITNESS: That it was '96. If you 18 look at my Burton report, between 1996 when the 19 corrosion control program was put in place and 20 2002, the maximum levels were 340, 240, 26, 164, 21 dot, dot, dot. 22 problem historically in Milwaukee, but not in the 23 2000s. 24 25 So there was a corrosion control BY MS. FITZPATRICK: Q Okay. So the situation in Flint is not analogous Page 302 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 to the current problems that you see with the 2 Milwaukee water supply, correct? 3 MR. DOUGLASS: 4 THE WITNESS: Object to the form. I have no way of knowing 5 one way or the other whether corrosion control 6 has been properly maintained, but I have seen no 7 evidence that has said that. 8 9 BY MS. FITZPATRICK: Q 10 11 Have you looked at the report of the Water Quality Task Force that was put out in 2017? A I did not look at that one, no. 12 MS. FITZPATRICK: 13 break. 14 15 16 Why don't we take a (A recess was taken.) BY MS. FITZPATRICK: Q I'm going to go to the specific case of Cesar 17 Sifuentes, because I know we have time issues 18 here. 19 reviewed Mr. Sifuentes' case for the defendants 20 in this case, correct? I want to get through this first. 21 A I did. 22 Q And you know that Mr. Sifuentes was lead 23 You poisoned, correct? 24 MR. DOUGLASS: 25 THE WITNESS: Object to the form. I know that he had Page 303 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 3 July 13, 2017 extremely high levels of lead, yes. BY MS. FITZPATRICK: Q And his first recorded venous level was 4 48 micrograms per deciliter on May 21, 2001, 5 correct? 6 A Hold on. 48 venous, May 21, 2001. Okay. 7 Q And that qualifies as lead poisoning under the 8 Milwaukee Department of Health standards, 9 correct? 10 MR. DOUGLASS: Object to the form. 11 MS. FLANNERY: Objection. 12 THE WITNESS: 13 14 I think so. I'd have to check. BY MS. FITZPATRICK: 15 Q How old was he? 16 A He was 28 months. 17 Q Okay. 18 A A little over two. 19 Q Okay. And that -- And that level of 48 micrograms per 20 deciliter is almost 10 times higher than the 21 current CDC level of concern for lead poisoning, 22 correct? 23 MR. DOUGLASS: 24 THE WITNESS: 25 Object to the form. Yes with a clarification. They actually call it a reference level now. Page 304 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 BY MS. FITZPATRICK: Q 3 Okay. But it's almost 10 times that reference level, correct? 4 A That's correct. 5 Q And Mr. Sifuentes was admitted to the hospital 6 for chelation, correct? 7 A Yes. 8 Q And his blood level -- lead level remained above 9 20 micrograms per deciliter for 18 months, about 10 18 months, correct? 11 A Say again? Above 20? 12 Q Yeah. 13 A Eighteen months. Not exactly. There was in the 14 record a June 19th measurement of 12 that I have 15 for the medical reports, but that aside, then the 16 next measurement was 38 and they stayed above 20 17 until October the 8th, 2002. 18 Q 19 And actually on October 8, 2002 he had a level of 23 micrograms per deciliter? 20 A Yes. 21 Q And it was on November 19th that it dipped down 22 to 18, and it continued to fluctuate in the high 23 teens to mid 20s for a number of additional 24 months, correct? 25 A Yes. Page 305 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q July 13, 2017 Now would you agree with me that Mr. Sifuentes' 2 blood lead levels constitute serious blood -- 3 excuse me -- serious lead poisoning? 4 MR. DOUGLASS: 5 THE WITNESS: Object to form. I don't think I'm 6 qualified to make that statement, but it's at the 7 high end of what is seen, yes. 8 9 BY MS. FITZPATRICK: Q And it's also chronic lead poisoning, isn't it? 10 MS. FLANNERY: Object. 11 MR. DOUGLASS: Object to form. 12 THE WITNESS: The word chronic is 13 tricky, but since it's going up and down for so 14 long -- Actually, standard definition of chronic 15 is seven years or more in the toxicology world, 16 and under seven years would be called 17 sub-chronic, so I'm not sure we would call it 18 chronic. 19 20 I'm not sure why we care. BY MS. FITZPATRICK: Q Well, I guess what I was trying to get at is it's 21 not a situation where there was a one time lead 22 poisoning, the numbers dropped and thereafter he 23 had low blood lead levels, correct? 24 lead levels remained elevated for a significant 25 period of time? His blood Page 306 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 A For a significant period of time, yes. 2 Q Now would you agree with me that as a 3 toxicologist you believe that these types of 4 blood lead levels indicate that Mr. Sifuentes was 5 exposed to lead from some environmental source or 6 sources? 7 A That's the only way you would get lead, so yes. 8 Q Okay. 9 And these levels are well above the average blood lead level for children in 10 Milwaukee, correct? 11 MR. DOUGLASS: 12 THE WITNESS: 13 14 Object to the form. Correct. BY MS. FITZPATRICK: Q And his blood lead levels cannot be explained 15 simply by background exposure to common sources 16 of lead in the environment, correct, the type of 17 thing that every child is exposed to? 18 MR. DOUGLASS: 19 THE WITNESS: 20 21 22 23 I would say I disagree with that. BY MS. FITZPATRICK: Q Okay. How many children in Milwaukee have blood lead levels analogous to Mr. Sifuentes? 24 25 Object to form. MR. DOUGLASS: Are you talking about now? Page 307 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 MS. FITZPATRICK: 2 Sure, now. We can say then, now, anytime. 3 MR. DOUGLASS: 4 THE WITNESS: Object to the form. Well, they do not issue -- 5 I have not been able to see any data from 6 Milwaukee that give the actual levels. 7 average levels and so forth, but maximum levels, 8 I have not seen that. 9 state, and for the state, levels that high, there 10 were several hundreds kids a year that would have 11 levels that high. 12 13 We see I have seen it for the But, yes, it is unusual. BY MS. FITZPATRICK: Q Okay. Now you were hired by the defendants to 14 determine the source or sources of Mr. Sifuentes' 15 lead poisoning, correct? 16 A 17 18 19 No, that's not correct. MR. DOUGLASS: BY MS. FITZPATRICK: Q What are you doing then? 20 MR. DOUGLASS: 21 THE WITNESS: 22 23 24 25 Object to the form. Object to the form. That's a pretty broad question, but -BY MS. FITZPATRICK: Q What are you here to offer your opinion on, if it's not the sources of Mr. Sifuentes' lead Page 308 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 poisoning? A I'm here to offer an opinion on what the possible 3 sources are to any child, including this child, 4 but we can't know for certain what happened with 5 Mr. Sifuentes. 6 know for certain what caused these blood lead 7 levels. 8 Q 9 1657 South 32nd Street in Milwaukee, correct? A 12 13 That is where he was living when he had the first high values, yes. Q 14 15 You will agree with me that at the time Mr. Sifuentes was lead poisoned, he was living at 10 11 Neither I nor anyone else can Okay. And you will agree with me that there was lead-based paint present in that home, correct? A 16 Yes. MS. FITZPATRICK: Let's go ahead and 17 mark as the next exhibit Exhibit 38. 18 file from the City of Milwaukee Health 19 Department. 20 inspection report done by Lead Safe Services. 21 22 23 This is the Let's also mark as Exhibit 39 the (Exhibits 38 and 39 were marked.) BY MS. FITZPATRICK: Q Now looking at Exhibit 39, that was an inspection 24 that was done by Jon Halverson, a certified lead 25 inspector and risk assessor, correct? Page 309 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 A I don't know when he was a certified risk 2 assessor. 3 that's correct. 4 Q 5 July 13, 2017 Yes, it does state he was. Yes, And that report was done on January 17, 2007, correct? 6 A I believe so, yes. 7 Q And Mr. Halverson tested the home that 8 Mr. Sifuentes had been living in at the time he 9 was initially lead poisoned and found that 10 lead-based paint was present in that home, 11 correct? 12 A He found lead-based paint by XRF at unknown 13 levels in terms of depth, but, yes, he did find 14 that. 15 Q 16 So he found that there was lead-based paint present in that home, correct? 17 A That's correct. 18 Q And he took paint chips from certain locations in 19 that home, correct? 20 A He did. 21 Q And your expert or your clients' expert, 22 Dr. Palenick, tested those chips for the presence 23 of white lead carbonate, and you looked at those 24 reports, correct? 25 A I did. Page 310 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q July 13, 2017 And those chips established that white lead 2 carbonate was present in Mr. Sifuentes' home, 3 correct? 4 MR. DOUGLASS: 5 THE WITNESS: 6 7 8 Object to the form. In five out of the six samples, yes. BY MS. FITZPATRICK: Q Okay. Now going back to the time that 9 Mr. Sifuentes was poisoned, the Milwaukee Health 10 Department did an inspection at the time of his 11 poisoning that was triggered by the poisoning, 12 correct? 13 MR. DOUGLASS: 14 THE WITNESS: Object to the form. I would assume it was 15 triggered by that, but it was definitely during 16 that time period. 17 how it matters how it was triggered, but in any 18 case -- probably it was triggered by that high 19 number. 20 anywhere here, but it's very likely. 21 22 I will check. I'm not sure I don't see that actually written BY MS. FITZPATRICK: Q And the City of Milwaukee Health Department found 23 that there were lead-based paint hazards in 24 lead-based paint on the exterior of the home at 25 1657 South 32nd Street at the time Mr. Sifuentes Page 311 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 was poisoned, correct? 2 MR. DOUGLASS: 3 THE WITNESS: Object to the form. Ms. Reinmund did state 4 that there was deteriorated paint on the external 5 sills of the house. 6 7 BY MS. FITZPATRICK: Q And also the City of Milwaukee Health Department 8 determined there was deteriorated lead-based 9 paint on the interior of that property, correct? 10 A I don't believe so. Give me a minute. I see no 11 evidence that they saw deteriorated paint on the 12 inside of the house. 13 Q 14 Okay. Could you look at Document 38 that I gave you? 15 A Yes. 16 Q And look at the pages that in the bottom, 17 right-hand corner are marked 412 and 413. 18 A I will look at them. 19 Q That was an Order of Abatement that was issued by 20 the Milwaukee Department of Health for the 21 interior of 1657 South 32nd Street indicating the 22 presence of deteriorated lead-based paint, 23 correct? 24 25 A Hold on a minute, please. The paperwork that I have says that the house -- they said lead Page 312 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 assumed present, and the orders were marked 2 primary prevention, so it does not appear that 3 they actually made a determination that there 4 were lead-based paint hazards. 5 primary prevention program, you don't need to 6 issue orders without -- Excuse me. 7 But in the You don't need to issue orders -- you 8 don't need to have that determination in order to 9 issue orders. I'm so sorry. But they did, 10 indeed, issue orders to do window treatment for a 11 variety of windows. 12 Q Okay. It says in the City of Milwaukee Health 13 Department Order to Correct Condition of Premises 14 marked interior orders that, quote, "A risk 15 assessment at the above address disclosed the 16 presence of deteriorated lead-based paint." 17 A I agree with you it says that, but there's no 18 evidence in the record that they actually did a 19 risk assessment, and the orders on Page 000059, 20 which is in a different set of documents, says 21 primary prevention. 22 Q Okay. 23 A It's perhaps neither here nor there, because they 24 25 So you -- did issue the orders and the work was done. Q Well, I think it's here or there, because it Page 313 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 establishes that there was deteriorated 2 lead-based paint present in the interior of the 3 home at the time that Mr. Sifuentes got lead 4 poisoned. 5 important issue. 6 So I do think it's actually an The City of Milwaukee took a dust wipe 7 from the kitchen window, correct? 8 A They did do that, yes. 9 Q And what was the result of that? 10 A The interior kitchen sill had high lead in the 11 dust, but it was not painted, it was varnished. 12 I believe they took three samples. 13 my notes. 14 Let's check The exterior kitchen windowsill was 15 tested for dust, but they assessed that the 16 condition was good. 17 dust, but the condition was good. 18 They did find lead in the The interior windowsill was listed as in 19 good condition, and it was not painted, but they 20 did find lead in the dust. 21 Q Okay. And that's common, isn't it, that you have 22 paint that appears visually to be in good 23 condition, but can still produce dangerous levels 24 of lead dust when tested, correct? 25 MR. DOUGLASS: Object to the form. Page 314 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 3 July 13, 2017 THE WITNESS: I don't think I know that. BY MS. FITZPATRICK: Q 4 Well, that happened in Mr. Burton's home? Remember we talked about that dining room window? 5 A That's a long time ago. 6 Q In happened in Mr. Burton's home and it happened 7 in Mr. Sifuentes' home, correct? 8 MS. FLANNERY: Object. 9 MR. DOUGLASS: Object to form. 10 THE WITNESS: What could also have 11 happened -- I would say, yes, that's possible, 12 but what could also have happened is that dust 13 blew in from outdoors and ended up on the 14 windowsill that was in good condition. 15 no way of knowing. 16 There is BY MS. FITZPATRICK: 17 Q But the lead came from somewhere, right? 18 A I would assume it came from somewhere. 19 Q And if you look at the Page 412 to 413 that I had 20 directed you to before? 21 A Yes. 22 Q What the City of Milwaukee Health Department said 23 in its Order to Correct the Condition of Premises 24 is that windows are typically the most hazardous 25 surface in a home because they produce leaded Page 315 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 dust each time a window is open as a result of 2 the friction between the sash and the jamb. 3 That's exactly where they found the lead dust in 4 Mr. Sifuentes' home, right, on the windows? 5 A They only tested the windows. 6 Q And they found lead in dust? 7 A Yes. 8 Q Now you are looking at some notes, and I know you 9 had taken some notes in the other cases. Do you 10 have a copy of your notes in Mr. Sifuentes' case, 11 too? 12 A I do, indeed. They are just like the other case. 13 They are several things. 14 the Halverson data with a few notes. 15 16 MS. FITZPATRICK: Here's my summary of Okay. We will mark that as Exhibit 40. 17 (Exhibit 40 was marked.) 18 THE WITNESS: I wanted to check the 19 Halverson numbers from the report. 20 found one error, but it was mostly fine. 21 here is a set of notes that's sort of a crib 22 sheet so I can remember which person is which. 23 24 25 MS. FITZPATRICK: I think I Then We will mark that as Exhibit 41. THE WITNESS: Okay. Do you want two Page 316 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 copies of it or just one? 2 MS. FITZPATRICK: We need one for the 3 court reporter and one for me. Then you will get 4 the court reporter's copy back. We will mark as 5 41. 6 MS. FLANNERY: What's 41? 7 MS. FITZPATRICK: 8 (Exhibit 41 was marked.) 9 THE WITNESS: It's his notes. I reread my report before 10 our last engagement and just took some brief 11 notes to refresh my memory on what's in my 12 report. 13 MS. FITZPATRICK: 14 We will mark that as 42. 15 16 Okay. (Exhibit 42 was marked.) BY MS. FITZPATRICK: 17 Q Do you have anything else there? 18 A One more. 19 Q Okay. 20 A This is my rebuttal to Dr. Heath's rebuttal 21 report where she makes some statements about 22 where some samples were taken by Mr. Halverson 23 and how they may or may not have matched some 24 locations that the Department of Health might 25 have focused on, and she got a few things wrong, Page 317 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 so I wrote those down. 2 We will mark that as 43. 4 6 That's it. MS. FITZPATRICK: 3 5 July 13, 2017 (Exhibit 43 was marked.) BY MS. FITZPATRICK: Q You will agree with me that the record in this 7 case indicates that Mr. Sifuentes spent a 8 considerable amount of time with his mom in the 9 kitchen at the time that he was lead poisoned, 10 correct? 11 MR. DOUGLASS: 12 THE WITNESS: 13 recollection of that. 14 about the kitchen, but I don't recall the 15 specifics. 16 17 Object to form. I don't have a very strong I do recall something BY MS. FITZPATRICK: Q That would be significant, something that you 18 would want to know is where this child was 19 spending their time in the home, correct? 20 A It certainly would be, correct. 21 Q And if the father had testified that his son, 22 Cesar, spent most of his time either in his 23 bedroom or with his mother in the kitchen, that's 24 something significant for you to know to 25 understand pathways of exposure to lead for this Page 318 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 child, correct? 2 MR. DOUGLASS: 3 THE WITNESS: 4 5 6 Object to form. It's important to know where the child spent time. BY MS. FITZPATRICK: Q And do you have any reason or any evidence to 7 rebut Mr. Sifuentes' statements that his son 8 spent most of his time as a toddler in the 9 bedroom or with his mother in the kitchen? 10 A 11 12 I have no reason to dispute what the father and mother said. Q And you know from looking at these records that 13 Mr. Sifuentes' kitchen contained lead-based 14 paint, correct? 15 A Let's see. The sample was taken by Mr. Halverson 16 in the kitchen on the wall, and it had lead-based 17 paint. 18 Q 19 20 And he also took samples from the kitchen door to the backyard, correct? A It says rear entry doorjamb. I'm honestly not 21 remembering whether that leads directly into the 22 kitchen or not, because I have never seen a floor 23 plan. 24 25 Q Okay. You didn't look at the floor plan of this house? Page 319 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 A 2 3 July 13, 2017 I don't believe I saw a floor plan in any of the records. Q Okay. Did you know that the floor plan was 4 attached as an exhibit to the deposition of the 5 inspector from the Milwaukee Department of Health 6 who went and did the inspection back when 7 Mr. Sifuentes was poisoned? 8 MR. DOUGLASS: 9 THE WITNESS: 10 that deposition. 11 inspector? Object to form. I don't think I have seen What is the name of the 12 MS. FITZPATRICK: 13 THE WITNESS: 14 neighbor. 15 No, he's the next door Or, I mean, he's the landlord. MS. FITZPATRICK: 16 Pacheco. landlord. Oh, I'm sorry. Did you look at that? 17 THE WITNESS: 18 there was a floor plan there? 19 Oh, you are saying that MS. FITZPATRICK: There was a floor plan 20 attached to his deposition, as well as 21 Mr. Sifuentes' deposition. 22 THE WITNESS: 23 24 25 The I don't recall seeing those. BY MS. FITZPATRICK: Q I don't have an extra copy of this, this is my Page 320 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 working copy, but let me show you what has been 2 attached to that. 3 marked as the kitchen, you will see that's where 4 the door to the backyard was, correct? 5 A If you see what has been I do not recall seeing this, but this is helpful 6 for sure, yes. 7 leads out to the back door. 8 be the kitchen door. 9 Q 10 It does show that the kitchen So that door would So that rear entry doorjamb also contained lead-based paint, correct? 11 A Let me double-check. 12 Q Okay. Yes. And the paint that was on the kitchen wall 13 contained white lead carbonate, according to 14 Dr. Palenick, correct? 15 A At Layer 21. 16 Q And the kitchen door to the backyard contained 1, 17 2, 3, 4, 5, 6, 7, 8, 9, 10 layers of white lead 18 carbonate, correct -- 19 MR. DOUGLASS: 20 MS. FITZPATRICK: 21 22 -- according to Dr. Palenick? THE WITNESS: 23 data in front of me. 24 first one is. 25 Object to the form. Well, I don't have that It's Level 11 is where the BY MS. FITZPATRICK: Page 321 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q Okay. July 13, 2017 And you didn't look at the additional 2 layers of white lead carbonate to look at the 3 relative contribution of white lead carbonate to 4 the lead in that chip as opposed to other sources 5 of lead? 6 A I did -- 7 MR. DOUGLASS: 8 THE WITNESS: 9 all of them. 10 11 12 Object to form. Sorry. I did glance at I just do not recall as I sit here right now. BY MS. FITZPATRICK: Q Okay. Based on what we discussed, can you agree 13 with me, to a reasonable degree of scientific 14 certainty, that the lead-based paint in 15 Mr. Sifuentes' home was a source of his lead 16 poisoning in 2001? 17 MR. DOUGLASS: 18 THE WITNESS: Object to the form. I have no way of knowing 19 for sure, but it is likely that it was a source, 20 one of the sources, yes. 21 22 BY MS. FITZPATRICK: Q And, in fact, we have a completed pathway in the 23 case of being able to place the child in the 24 kitchen where there's both lead-based paint and 25 lead dust, and that's a completed pathway of Page 322 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 exposure for a child, correct? 2 MR. DOUGLASS: 3 THE WITNESS: Object to the form. Well, let me think about 4 that for a moment. 5 just doing the analysis here as we speak. 6 tested pretty high up, so the child would not 7 have been able to reach that area. 8 assumed that the paint down at the bottom was the 9 same as the paint at the top, which is not an 10 11 12 The doorjamb was tested. It was If one unreasonable assumption -BY MS. FITZPATRICK: Q 13 In fact, that's pretty much the logical assumption? 14 A Yes. 15 Q Most people don't paint the bottom of the 16 doorjamb with a different paint than the top, 17 correct? 18 I'm A Unless they are being very creative. But, yes, I 19 agree with that. It's hard to imagine that's a 20 good place for a child to play right in front of 21 a door that's opening and closing, but it's 22 possible, because it's an accessible area, unlike 23 some areas where the paint might have been very 24 high. 25 The wall is also high, because it looks like And the wall, I'm not sure we can tell. Page 323 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 there is a, what do you call it, a chair bar 2 that's halfway down, so the samples are, you 3 know, up this high (indicating). 4 The Sifuentes house was actually mostly 5 varnished, but the walls -- do we have the color 6 photos, the pictures? 7 varnished, but I think the walls probably were 8 not. Most of the woodwork was 9 Q How would you varnish walls? 10 A Hum? 11 Q How would you varnish walls, plaster walls? 12 A I don't think it's common. 13 I just want to take a quick peek at the photos. 14 Q Okay. Sure. 15 A I'm not sure we have a picture of the actual 16 kitchen, but I'm pretty sure that you are 17 correct, that it would be a painted surface. 18 varnish does contain sometimes -- well, some of 19 the walls are varnished. 20 Q Are you talking about wooden walls? 21 A I can't tell what the substrate would be. But Here's 22 a room that clearly is not varnished. It looks 23 like one of them was. 24 the kitchen. 25 looks to me like -- Can I see the map again? I'm not sure we have got The pantry is papered, but that It Page 324 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 looks like the pantry is one of those little 2 nooks that's not in the kitchen, but you walk 3 through an opening to get to it. Do they show 4 that? So that is 5 papered. 6 It's painted. 7 Q They do show that. Okay. It's probably correct, yes, ma'am. So based on your review of Mr. Sifuentes' case, 8 you agree with me that it's likely that the 9 lead-based paint in his home was a source of his 10 lead poisoning, correct? 11 MR. DOUGLASS: 12 THE WITNESS: 13 14 Object to the form. It's likely a source. BY MS. FITZPATRICK: Q Now did you consider other sources or other 15 potential sources of Mr. Sifuentes' lead 16 poisoning? 17 A Yes. 18 Q Did you consider lead in his water supply as a 19 source of Mr. Sifuentes' lead poisoning? 20 MR. DOUGLASS: 21 THE WITNESS: Object to form. I did, that it's present 22 throughout Milwaukee, and his house was serviced 23 by lead pipes, and that is a known source of lead 24 to water. 25 BY MS. FITZPATRICK: Page 325 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 Q Okay. 2 A I considered it. 3 Q And do you have any evidence that water is an 4 5 So water is a yes for you, is that right? actual source of lead exposure for Mr. Sifuentes? A Well, no one tested the water. The Health 6 Department did not test the water nor has anyone 7 else, so we don't know what the actual level was 8 in that house, whether it was typical or higher 9 than typical. But we do know that whenever water 10 throughout Milwaukee is tested -- Well, we should 11 be a little careful here, because there may be 12 some neighborhoods somewhere that don't have lead 13 pipes. 14 pipes, lead is present in the drinking water. 15 I would say clearly he was exposed, unless he 16 drank no water. 17 low or medium, there's no way I can predict that. 18 Q 19 20 Okay. But in all areas where there is lead So To the extent that it was high, Do you know whether Mr. Sifuentes drank tap water or bottled water? A I do not believe -- and let me check this 21 specifically to see if there was any evidence in 22 the record that they said one way or the other. 23 I don't have anything in my notes, so I don't 24 think anybody stated one way or the other whether 25 this water was filtered or bottled or out of a Page 326 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 tap. Q 3 And I was going to ask you you don't know whether the water -- if there was a filter on the tap? 4 A I do not know one way or the other. 5 Q Okay. 6 7 water Mr. Sifuentes consumed at that time? A 8 9 And do you have any evidence of how much I have no knowledge of his water consumption pattern. Q And do you believe that, based on the specific 10 evidence you have in Mr. Sifuentes' case, that 11 you have enough evidence to determine a pathway 12 of exposure for Mr. Sifuentes from the water? 13 A Well, using the same level of proof, if we are 14 going to opine that a child has a complete 15 exposure pathway to lead paint on a kitchen wall, 16 we don't know what they did there, but it's 17 reasonable, then I would also opine in the same 18 fashion that he was exposed to lead in drinking 19 water, because it's likely that he drank water. 20 Q But you know the levels of lead in the paint on 21 the kitchen door and the kitchen wall and 22 elsewhere throughout the house. 23 corresponding levels of lead in Mr. Sifuentes' 24 water, do you? 25 A I do not know -- Excuse me. You don't have Scratch that. Page 327 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 I do know that there was no lead at the 2 surface of the kitchen wall -- excuse me -- white 3 lead carbonate. 4 white lead carbonate, which is at issue in this 5 trial, on the kitchen wall at the surface or on 6 that doorjamb. 7 if we are talking about white lead carbonate 8 specifically, I would say I do not know that 9 there is a complete exposure pathway, and that 10 11 I do not know that there was any White lead carbonate was deep, so there's no evidence that there is one. Q Okay. Would you agree with me, though, that you 12 have a lot more information about the lead-based 13 paint in this case than lead in water? 14 A The way you are stating that, no, I would not 15 agree. 16 Milwaukee. 17 Q Okay. There's a lot of information on water in Site specific information? Fair enough. In this case specifically 18 you have much more information about the 19 lead-based paint that was present in Mr. 20 Sifuentes' house than you do the potential 21 contamination of his water source from lead? 22 MR. DOUGLASS: 23 THE WITNESS: 24 25 Object to the form. I think that's fair, yes. BY MS. FITZPATRICK: Q And we know for a fact that lead-based paint is Page 328 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 there, but we're surmising that lead was in his 2 water supply? 3 MS. FLANNERY: Object to form. 4 MR. DOUGLASS: Objection. 5 THE WITNESS: Well, I would not agree 6 with that. 7 water is tested in these neighborhoods, they find 8 it. 9 BY MS. FITZPATRICK: 10 Q 11 12 Okay. Wherever lead -- excuse me. What if there's a filter? Do they find it in that water supply for drinking? A A filter can be helpful, if it's properly 13 maintained. 14 on and never change it out. 15 Wherever Q 16 A lot of people buy a filter, put it But filters will filter lead out from water, correct? 17 A Some of it, yes. 18 Q Okay. 19 And if you are using bottled water, you are not exposed to lead from the tap, correct? 20 A That would be correct. 21 Q Okay. Let's just assume for the sake of argument 22 that you are correct that Mr. Sifuentes got some 23 exposure to lead from the lead in his water 24 supply in his home. 25 his blood lead levels of 48 micrograms per Could that alone account for Page 329 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 deciliter on May 21, 2001? A Could it? It is possible, not likely, but there 3 have been many instances where the lead level in 4 the water is high because of little pieces of 5 lead that get into the glass, and when that's the 6 case, the lead levels can be extremely high and 7 they could cause that. 8 end. 9 time to time. 10 Q 11 But that's just the high It's not likely, but it does happen from And you have no evidence that that happened in this case, correct? 12 A I have no evidence one way or the other. 13 Q Okay. So you will agree with me that it's 14 unlikely that lead in water could cause a blood 15 lead level of 48 micrograms per deciliter, 16 correct? 17 words? 18 A Or possible, but not likely were your No, I think it's more correct to say that I don't 19 know. 20 know what happened here. 21 Q Okay. It has happened in the past, and I don't What's more likely to cause a blood lead 22 level of 48 micrograms per deciliter, lead-based 23 paint with the lead levels that you know existed 24 in Mr. Sifuentes' home or lead in water? 25 A The -- well, again, if we are talking white lead Page 330 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 carbonate, which is my understanding, that's what 2 the case is all about, there's no evidence that 3 white lead carbonate was accessible to the child, 4 unless the child were to pry off a piece of the, 5 you know, paint going all the way down to Layers 6 21 and below on the wall. 7 more likely or less likely. 8 knows. 9 Q 10 So I don't know what's I think nobody Let me just look at some of the data that I have on Mr. Sifuentes' case. 11 Layer 13 of the rear entry doorjamb 12 contains 47.5 percent white lead carbonate. 13 know that from Dr. Palenik's report. 14 looked at that? 15 A 16 17 You Have you I don't have it in front of me, but I believe you. Q Now lead-based paint that contains 47.5 percent 18 lead in it can cause an elevated blood lead level 19 of 48 micrograms per deciliter, if ingested by a 20 child, correct? 21 A Very likely, if that were ingested. 22 Q Layer 14 had 53.6 percent lead carbonate in the 23 layer. 24 48 micrograms per deciliter in a child, correct? 25 A That can cause a blood lead level of If a child were to eat a paint chip that went Page 331 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 down to that level where that number was present, 2 yes, but there's no evidence that this child ate 3 paint chips or that there were paint chips. 4 Q Okay. If a child is ingesting dust that contains 5 that lead, they can, also, and that's, in fact, 6 the more likely way that children can ingest 7 lead-based paint, correct? 8 MR. DOUGLASS: 9 THE WITNESS: Object to the form. I suppose more kids touch 10 dust than eat paint chips, so that's probably 11 correct. 12 13 BY MS. FITZPATRICK: Q Okay. And so there are -- you know from looking 14 at this kitchen door to the backyard, there are 15 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 layers of paint 16 that contain white lead carbonate ranging from 17 27 percent lead up to 57 percent lead. 18 agree that's a lot of lead paint, correct? 19 20 21 MR. DOUGLASS: You will Object to the form. BY MS. FITZPATRICK: Q That's a lot of white lead carbonate? 22 MR. DOUGLASS: 23 THE WITNESS: Same objection. Well, to answer that 24 question I would have to multiply the 25 concentration in the layer times the depth of the Page 332 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 layer, because the layer could be extremely thin 2 and have a high concentration, but a thicker 3 layer could have a lower concentration and have a 4 higher amount total. 5 math. 6 go through 11 layers of paint that doesn't have 7 white lead carbonate. 8 Layer 12 when all the layers above it are still 9 there? 10 11 So you need to do that But I'd like to state that you have got to How do you get dust from BY MS. FITZPATRICK: Q 12 Have you read any of the EPA or HUD studies that address specifically that issue? 13 MS. FLANNERY: 14 THE WITNESS: Objection. Well, as I have stated 15 before, I have read many EPA and HUD reports, so 16 probably, yes. 17 18 BY MS. FITZPATRICK: Q So you have seen the studies from EPA, HUD and 19 elsewhere that paint that even visually looks 20 like it's in good condition can still be 21 generating lead dust, correct? 22 MS. FLANNERY: 23 MS. FITZPATRICK: 24 seen them or you haven't. 25 THE WITNESS: Objection, foundation. Well, you have either Yes, from the surface, not Page 333 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 from the interior of the paint chip 12 or 20 2 layers in. 3 4 BY MS. FITZPATRICK: Q So you are not aware as we sit here today of any 5 studies from government agencies or reports from 6 government agencies that report that lead-based 7 paint that looks like it's visually intact can 8 still be generating lead dust? 9 MS. FLANNERY: Objection, foundation. 10 And if you have such a study, maybe you should 11 put it in front of him to look at. 12 13 THE WITNESS: I am aware -- BY MS. FITZPATRICK: 14 Q Are you aware of anything like that? 15 A I'm aware of basic physics which says you can't 16 get from there to here without going through the 17 middle. 18 jump through 12 layers and then end up creating 19 dust on the exterior. 20 Q 21 Okay. I don't believe lead from Layer 12 can So you are not aware of any such studies from any government agencies? 22 A I'm not. 23 Q Did you look into that? 24 MR. DOUGLASS: Object to form. 25 Page 334 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 BY MS. FITZPATRICK: Q Did you look into that to test your hypothesis 3 that lead cannot get from Layer 3 to a place 4 that's accessible to a child? 5 A 6 7 I do not typically check the basic laws of physics when I'm doing projects like this. Q Okay. But if you are wrong, sir, you will at 8 least agree with me that the percentage of lead 9 in these particular layers that were tested for 10 white lead carbonate were very high, correct? 11 MR. DOUGLASS: 12 THE WITNESS: 13 14 Object to form. Yes. BY MS. FITZPATRICK: Q And they were well in excess of the levels that 15 were set by the Consumer Products Safety 16 Commission in the late '70s for use of lead in 17 paint, correct? 18 MR. DOUGLASS: 19 THE WITNESS: 20 21 Object to form. Yes. BY MS. FITZPATRICK: Q So putting aside whether you believe that lead in 22 Layers 13, 14, 17, 18 and beyond could be 23 accessible to a child or not -- I'm going to ask 24 you a different question. 25 If those layers were accessible to a Page 335 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 child, those types -- those levels of lead in 2 those layers could cause poisoning in the range 3 that Mr. Sifuentes had, correct? 4 MR. DOUGLASS: 5 THE WITNESS: 6 add it's not just accessible. 7 accessible and the child actually had exposure to 8 them, they are high enough to cause numbers such 9 as these. 10 11 Object to form. If they were -- we need to So if they were BY MS. FITZPATRICK: Q Okay. So we have lead as a likely source. You 12 have opined that you believe that water was a 13 source, correct? 14 A 15 16 I think I would use the word likely. Paint is a likely source; water is a likely source. Q It is possible, but not likely, that water on its 17 own could cause lead levels in the range that 18 Mr. Sifuentes had, correct? 19 A No, I think my opinion was that I don't know. 20 Q Okay. 21 A I'm certainly not going to say I think it's You don't know? 22 likely, I think the probability is X. 23 have no knowledge. 24 25 Q We just Well, I mean, let's just talk practically. You have generalized information about lead in the Page 336 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 water supply in Milwaukee, but you don't have any 2 information specific to Mr. Sifuentes' home, 3 correct? 4 A 5 6 I don't have any specific Sifuentes information, correct. Q So if you are correct that the generalized 7 population is exposed to lead in water and that 8 Mr. Sifuentes was exposed in the same way that 9 the generalized population is, wouldn't you 10 expect to see everybody that had blood lead 11 levels like Mr. Sifuentes? 12 A If he consumed a similar amount of water to the 13 average child and his water was like the average 14 child's, then, yes, you would not expect to see 15 numbers this high for the reason you just stated. 16 Q 17 Exactly. Forty-eight is not an average blood lead level of any child in Milwaukee, correct? 18 MR. DOUGLASS: 19 THE WITNESS: 20 21 Object to form. That's correct. BY MS. FITZPATRICK: Q Now did you consider lead in the soil adjacent to 22 Mr. Sifuentes' home as a source of his lead 23 exposure? 24 25 A I considered soil in general, because he has a history of eating soil and, in fact, was Page 337 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 diagnosed with pica behavior. Q So can you point to me where you -- first of all, 3 where you find evidence that Mr. Sifuentes 4 specifically ate soil? 5 A I think so. Ms. Reinmund testified that the 6 mother said that he ate soil. Ricardo Pacheco 7 testified that he saw Cesar eating dirt from the 8 backyard. 9 are two of them that I found that checked The Health Department studies, there 10 hand-to-mouth behavior yes. 11 evidence that he sucked his fingers. 12 That might have been another child. 13 keep track. 14 that he had a pica diagnosis. 15 other ones in my report, if you would like me to 16 look further. 17 Q 18 Okay. 21 Maybe not. It's hard to And we have the doctor's testimony There may be some And those were specific to the backyard where a soil sample was taken, correct? 19 20 I think we have MS. FLANNERY: Objection. BY MS. FITZPATRICK: Q For example, the landlord said he saw Cesar 22 eating or putting soil in his mouth from the 23 backyard? 24 A I think he said in the backyard, yes. 25 Q And that's where the soil sample in Mr. Sifuentes Page 338 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 case came from, correct? A Yes, the Department of Health was concerned that 3 lead paint hazards may not have been the source 4 in the house, and so they did what they do not 5 normally do, despite the fact that their protocol 6 requires it. 7 and then he came back on another day and took a 8 third one. 9 Q 10 11 Okay. He did take two samples in the yard What were the levels of lead in those soil samples? A Let's see. The last one was 1,700, and the -- 12 that was on a separate event. The first one I 13 think was about 300 and the second one was about 14 1,400, but I'm -- let me see if I can put my 15 finger on that here. 16 Roughly 300, 1,400, 1,700. 17 numbers? It's in the reports. Do you want the exact 18 Q Can you give me the dates of those soil samples? 19 A He collected the first two in May 2001, and he 20 collected the third one in September of 2001. 21 Q Okay. 22 A They did the first one because Cesar Sifuentes' 23 blood lead levels went back up after he was 24 chelated in the hospital after 2001. 25 Q Okay. Now let's talk a little bit. Is it your Page 339 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 opinion that the lead in the soil was likely a 2 source of Mr. Sifuentes' lead exposure? 3 A Likely a source, yes, that's true. 4 Q Now let's go back to what I marked as Exhibit 5 No. 35, this thing (indicating). It says here 6 soil. 7 believe that each of these were likely a source 8 of Mr. Sifuentes' lead poisoning, correct? It identifies paint, water and soil. 9 A I do believe those are likely sources. 10 Q Okay. Now it says soil. You The most common way for 11 lead to get into soil is from lead paint on the 12 outside of a house. Do you agree with that? 13 A No, I don't agree with that. 14 Q Okay. What is your -- it says, "When old paint 15 chips, peels or is scraped off, it falls into the 16 soil. 17 called the drip zone." 18 Do you know where the soil samples were 19 20 The area where the old paint has fallen is taken from in Mr. Sifuentes' yard? A Actually, I don't recall that, but that is what 21 is called the drip zone. 22 sorry. 23 Q I agree with that. I'm What's the question again? So give me the basis for your opinion that the 24 Milwaukee Department of Health is wrong when it 25 says the most common way for lead to get into Page 340 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 soil is from lead paint on the outside of a 2 house. 3 A Well, in my report I go through several 4 paragraphs citing many studies of the role of the 5 house as a sink for lead dust that gets into the 6 air from soil throughout a community or, in this 7 case, a city. 8 Mielke and others that even in neighborhoods 9 where the housing is brick and has never been And it has been demonstrated by 10 painted with any kind of paint, that you see lead 11 in the soil, and it's higher in the drip zone 12 than it is out in the main part of the house. 13 How can that be? 14 blowing and it hits the house and it either drops 15 directly or it adheres, and then when it rains, 16 it comes down or it blows, probably, and it blows 17 and settles by gravity onto the top of the house. 18 And then when it rains, that enters the drip 19 zone. 20 does not mean it came from paint, although paint 21 is certainly one of the sources. Because the lead dust is So just because lead is in the drip zone 22 Q Okay. And it's a common source -- 23 A It's a common source. 24 Q -- of lead around the drip zone? 25 A I believe this said "most common," so that's the Page 341 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 world I take umbrage with. Q 3 4 July 13, 2017 Let me ask you this. How much of Cesar's lead levels do you attribute to the lead in the soil? A Well, I don't believe -- 5 MS. FLANNERY: 6 Objection. I think that's outside the scope, but go ahead. 7 THE WITNESS: I don't believe I or 8 anyone can actually say what the sources were or 9 the percentages, 5 percent this, 20 percent that. 10 None of us has enough information for that. 11 as you know I did use that IEUBK model that we 12 talked about last time, and I used that at the 13 end of my work as just a way to check to see what 14 EPA's procedure would predict, and it does 15 predict that if a child eats a lot of soil and 16 that soil has high lead, that you can get some 17 pretty high numbers. 18 used that for, was just a validation or just 19 another way to check that my opinions were, in 20 fact, sound. 21 22 25 But that's the only thing I BY MS. FITZPATRICK: Q 23 24 Now What number did you put in for soil lead in the IEUBK model for Mr. Sifuentes? A I think it was about 1,700. ways. I think I did it two I think I used the actual data from the Page 342 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 kid's yard, and then I also used the data from 2 the general area. 3 Let's double-check here. By the way, the numbers were 296 and 4 1,433. Those were the first two numbers from 5 May. 6 September. 7 Department of Health. And then 1,700 was the number from Those are the actual data from the 8 Q Okay. Great. 9 A And let's see what I plugged into the model again 10 just to see what the significance of those 11 sources would be using that tool, and I did -- I 12 put in 1,445 in one run and 1,143 in a second 13 run, and the first was the summary from all the 14 data from the area and the second was the average 15 of those three samples, including the low and the 16 two high ones. 17 Q Okay. Well, I want to turn you back to the 2008 18 article that you had cited to me earlier today as 19 one of the primary bases for your opinion that 20 there are other significant sources of lead-based 21 paint -- excuse me -- lead exposure in a child's 22 environment before lead-based paint. 23 Levin article. 24 blood lead levels can rise 1 to 5 micrograms per 25 deciliter for every 1,000 part per million It's the It says in the Levin article that Page 343 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 increase in soil lead. 2 U.S. EPA 2006A. 3 And it's basing it on the Based on the article that you have cited 4 to me as part of your reliance material, and 5 taking the 1,143, which is the average of the 6 soil lead levels, according to this article soil 7 can only account for maybe an increase of 8 somewhere between 2 and 7 micrograms per 9 deciliter in Cesar's case, correct? 10 A I would have to do the math, but that sounds 11 reasonable for an average child. 12 an average child. Cesar was not 13 Q He had 48 micrograms per deciliter? 14 A Yes, and he also had pica behavior, so he 15 specifically -- Let's just clarify for everyone 16 that all children eat a little soil, but it's not 17 because they pick up the soil and put it in their 18 mouth. 19 under their fingernails, and when they eat an 20 apple or a sandwich, they get a little bit of 21 soil. 22 disorder, and he was classified as a pica child. 23 Q It's that they get it on their hands and A pica child essentially eats soil, it's a Well, a pica child -- 24 25 MR. DOUGLASS: I'm sorry. Were you finished? Page 344 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 THE WITNESS: And so he consumed more 2 soil than an average child would be -- that that 3 slope factor that you are citing would be based 4 on. 5 BY MS. FITZPATRICK: 6 Q Are you sure of that? 7 8 9 MR. DOUGLASS: Did you look at it? Object to the form. BY MS. FITZPATRICK: Q Do you know whether or not that took into account 10 different consumption -- the differing 11 consumption of soil by children? 12 A 13 I am pretty sure, but I have not looked at it in the last few days. 14 MS. FLANNERY: 15 the article, you can. 16 THE WITNESS: If you need to look at No, no, this is -- we need 17 to look at the original document from which it 18 came. 19 20 BY MS. FITZPATRICK: Q And pica is not the abnormal eating of soil, it's 21 a child who eats non-food objects, it could be 22 soil or it could be lots of other things, too, 23 correct? 24 25 A Strictly speaking, that's true, but the definition of geophagia and pica is kind of Page 345 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 wishy-washy. 2 We know he had a diagnosis of pica, so he ate 3 whatever. 4 ate non-food items. 5 evidence from his mother, as well as the Health 6 Department and his neighbor, that he actually ate 7 dirt. 8 Q 9 There's an overlap between them. It's a general classification that he But then we also have the So we know he ate dirt. And even if you double these, you would still get to an increase of 4 to 14 micrograms per 10 deciliter, correct? 11 MR. DOUGLASS: 12 THE WITNESS: 13 14 15 Object to the form. Using that number, you probably would get that answer, yes. BY MS. FITZPATRICK: Q So you are not getting close to the 48 micrograms 16 per deciliter that Cesar actually had, is that 17 right? 18 MR. DOUGLASS: 19 THE WITNESS: Object to the form. Well, 14 is close to 40, 20 but I take your point, yes. 21 40, if you do it that way. 22 23 It's not getting to BY MS. FITZPATRICK: Q It's still 34 away from 48. I mean, it's 24 still -- you would have to go up three more 25 times, three more plus, to get to 48, so... Page 346 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Did you consider whether pottery was a 2 3 July 13, 2017 source of Mr. Sifuentes' lead exposure? A Well, I considered it with a small C. In other 4 words, when I was reading all of the materials, I 5 was looking to see if pottery would pop up, and I 6 did not see any reference to pottery. 7 Q Okay. So you don't believe that pottery was a 8 likely source of Mr. Sifuentes' lead poisoning, 9 correct? 10 MR. DOUGLASS: 11 THE WITNESS: Object to the form. Well, that's a bit strong. 12 He did come from Mexico, so they may have had 13 some lead pottery and they may have used lead 14 pottery, but we have no evidence of it, so I have 15 to leave it at that. 16 17 BY MS. FITZPATRICK: Q 18 You have no evidence that he was exposed to lead from pottery, is that correct? 19 A I have no evidence. 20 Q And you have no evidence that he was exposed to 21 lead from jewelry, correct? 22 A I have no evidence. 23 Q And you have no evidence that Mr. Sifuentes was 24 25 exposed to lead from hobbies, correct? A I have no evidence. Page 347 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q July 13, 2017 And you have no -- do you have any evidence of 2 any other sources of lead exposure for 3 Mr. Sifuentes? 4 MR. DOUGLASS: 5 THE WITNESS: Object to the form. If I'm remembering 6 correctly, Mr. Sifuentes worked in the Mexican 7 grocery store where candies and condiments that 8 had high lead that are known to have caused 9 extremely high blood lead levels in children in 10 the past were sold, but that's as far as it goes. 11 I have no knowledge as to whether he bought those 12 candies home or whether Cesar ate any of those 13 candies. 14 So little evidence. BY MS. FITZPATRICK: 15 Q So no evidence of that? 16 A Little evidence of that. 17 Q You have no evidence that he ever brought them 18 home or ate them, correct? 19 A I have no evidence. 20 Q We have got paint, we have got water, we have got 21 soil. 22 sources of lead exposure for Mr. Sifuentes? 23 A Do you have any evidence of any other Well, when we say "soil," I always mean soil and 24 soil-derived dust that is either tracked into the 25 house or can be blown in through the windows. Page 348 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q Okay. July 13, 2017 So let me clarify that. Soil means soil 2 and soil-derived dust. Does paint also include 3 paint derived dust, dust that's contaminated with 4 lead-based paint? 5 A I think that's fair, yes. 6 Q So we have got both the lead-based paint, chips 7 and we have got lead-based paint dust, correct? 8 A Um-hum. 9 Q We have got the water that's coming out of the 10 pipes and you have got the actual soil and you 11 have got dust that's generated by the soil, 12 right? 13 MS. FLANNERY: 14 sure I understand the question. 15 16 Object to form. I'm not BY MS. FITZPATRICK: Q 17 Is that correct as what you have determined are the potential sources? 18 A Paint, paint dust, soil, soil dust, water. 19 Q Right. 20 A Small amount in air; small amount in food. 21 22 Does that cover it for Mr. Sifuentes? Not major players; they are not zero. Q But they are certainly not a primary cause of a 23 48 micrograms per deciliter blood lead level, 24 correct? 25 A I would not think so. And one more thing, if you Page 349 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 do not mind. 2 father smoked. 3 was it the Owens father. 4 Give me one second to see whether that's on the 5 list or not. 6 cases separate. 7 the ingestion of lead from settled dust 8 containing cigarette smoke. 9 Q 10 11 I'm trying to figure out which Was it the Sifuentes father or Give me one second. It's hard to keep all of these And smoke. Secondhand smoke and And what is your evidence that Mr. Sifuentes was exposed to secondhand smoke in 2001? A 12 Well, the evidence is that the father says he smoked in the house. 13 Q Does it say when he smoked in the house? 14 A I don't recall. Let's see. I might have a 15 little paragraph on that. 16 Ruben Sifuentes, Cesar's father, did smoke a 17 great deal at 32nd Street. 18 of it both in Pedro's depo and in Pacheco's depo, 19 but I don't know anymore detail than that. 20 Q 21 22 23 The record shows that So there's testimony And could that secondhand smoke account for a blood lead level of 48 micrograms per deciliter? A No, not by itself, but it would be another exposure which just adds in. 24 MS. FITZPATRICK: Okay. 25 take a quick break, if it's okay. Why don't we Page 350 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 3 July 13, 2017 (A luncheon recess was taken.) BY MS. FITZPATRICK: Q One last thing I would like on Mr. Sifuentes' 4 case. 5 Can we go ahead and get those marked for the 6 record so we know what you are looking at? 7 A 8 You were looking at some color pictures. That was sent very early before we got the Halverson report. 9 Q And tell me what this is. 10 A These are photos that he took during his 11 12 inspection. Q 13 14 These are photographs that he, being Mr. Halverson, took? A Or his wife took them. Somebody took them, 15 because some of the pictures are of him. 16 they are of that house inspection. 17 MS. FITZPATRICK: 18 mark those as Exhibit 44. 19 20 21 Okay. But Can we just (Exhibit 44 was marked.) BY MS. FITZPATRICK: Q Okay. I'd like to talk to you now about 22 Mr. Owens' case, and I know that we had started 23 discussing that at the end of May when we met. 24 A I'm sorry. 25 Q Mr. Owens. Who now? Page 351 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 A Oh, back to Owens. 2 Q We are done with Mr. Burton and we are done with 3 Mr. Sifuentes. 4 Mr. Owens now. 5 We are going to wrap up with I honestly don't remember what has been 6 marked previously in this case. 7 A We handed you the notes. 8 Q Now I'd like to focus first on the North Sixth 9 Street house, okay? 10 A Okay. 11 Q And you will agree with me that the North Sixth 12 13 Street house contained lead-based paint, correct? A 14 15 North Sixth. Certainly Halverson showed lead-based paint. Q Okay. So, yes, that's a yes. And I think that we had some debate before 16 about whether the Milwaukee Department of Health 17 had completed an inspection of that North Sixth 18 Street house finding deteriorated lead-based 19 paint, correct? 20 A Well, I don't recall what was specifically said, 21 but, yes, my notes show that they took no XRFs in 22 the '93, they did no paint condition assessments, 23 they took no paint dust, soil and water samples. 24 All they did was issue orders. 25 really do anything. So they didn't They didn't find lead paint Page 352 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 nor find deteriorated paint. Q Okay. And if you will recall, when we had looked 3 at Exhibit 30, which was the inspection report, 4 you and I interpreted that differently. 5 interpreted that as an inspection of the North 6 Sixth Street address, and you had interpreted it 7 as an inspection of the North First Street 8 address. I Do you recall that? 9 A I do recall it. 10 Q And is it still your opinion that those -- that 11 inspection was of the North First Street address 12 and not the North Sixth Street address? 13 A Well, a double-pronged answer. In terms of that 14 specific page of that report, I'm honestly not 15 sure. 16 which is we went back and reviewed the documents 17 of all of the, you know, all of the Health 18 Department documents, and we have found clear 19 evidence that there were lead-based paint hazards 20 at First Street in 1993 and in 1994. 21 questioned whether I was interpreting that page 22 of that document correctly, I said, "Well, I'm 23 pretty sure that I recall reading a lot about 24 lead-based paint hazards at First Street." 25 went back and looked at the notes from the depos However, let's introduce something else, So when you So I Page 353 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 and from the Health Department reports, and these 2 are all the citations. 3 prongs, I'm still not sure about that one page we 4 were debating, but I am sure that there were 5 lead-based paint hazards in '93 and '94. 6 So back to the two MS. FITZPATRICK: 7 Okay. I'm going to mark this as Exhibit 45. 8 (Exhibit 45 was marked.) 9 MS. FITZPATRICK: I see it's dated 10 July 10th. 11 have time right now to look through the details 12 of all of it. 13 14 I'm just getting it today, so I don't BY MS. FITZPATRICK: Q Let me go back to the North Sixth Street house. 15 Putting aside the inspection and whether we can 16 agree or disagree on what kind of inspection was 17 done, there is significant evidence in the 18 testimony of Mr. Owens' family that chipping and 19 peeling paint was present at the North Sixth 20 Street house, correct? 21 MS. FLANNERY: 22 THE WITNESS: Object to form. My notes say the oldest 23 sister did not see him touch paint chips, the 24 aunt did not see him touch paint chips. 25 younger sister recalled seeing chipped paint. The Page 354 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 What else do I have in my notes. 2 there is some evidence. 3 that as considerable evidence. 4 So I would say I would not characterize BY MS. FITZPATRICK: 5 Q Did you look at Deshawna Conley's testimony? 6 A I did, but if you would like to show me a 7 8 specific page that I'm not recalling -Q I don't have that today. 9 10 Do you know who Dashawna Conley is? A 11 12 complicated. Q 13 14 Right now I have forgotten, because it's very Okay. Do you recall whether you saw her deposition? A I did see her deposition, yes. I read all the 15 depositions. 16 genealogical chart of who the aunt and who the 17 sister was and who the grandmother was. 18 normally would have pulled out from my crib sheet 19 here -- If I had seen that, I would have noted 20 it, I think, but, again, if you want to show me 21 something I'm not remembering, that's fine. 22 And I should have made a little MS. FITZPATRICK: But I Well, I do not have 23 her deposition with me, although I have excerpts 24 from it. 25 Give me two seconds. THE WITNESS: Both Deshawna and Ravon Page 355 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 talked about paint chips, but I think that was 2 the other house. 3 MR. DOUGLASS: 4 a question. 5 MS. FITZPATRICK: 6 7 8 Let's wait until she asks Just give me two seconds to find your notes. BY MS. FITZPATRICK: Q 9 Do you know that Deshawna Conley is Ravon Owens' mom? 10 A Okay. That sounds right. 11 Q And you would look at her testimony to determine 12 the history of Mr. Owens who was a young, young 13 child when he was poisoned, correct? 14 MS. FLANNERY: Objection. 15 MR. DOUGLASS: Object to form. 16 THE WITNESS: 17 No, I would not. BY MS. FITZPATRICK: 18 Q You wouldn't? 19 A No. 20 Q Why not? 21 A Owens is a complicated situation, because he was 22 shuttled around back and forth between his mother 23 and aunt and grandmother, and the record is 24 complicated as to who was taking care of him 25 when. So I can't tell you who was in charge at Page 356 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 any particular time. 2 person said this, that person said that. 3 a lot of uncertainty. 4 Q All I can say is that this There's Did you recall in Ms. Conley's deposition she 5 testified that she saw chipping and peeling paint 6 in the windows of 3626 North Sixth Street? 7 MR. DOUGLASS: 8 THE WITNESS: 9 notes. Object to form. I do not have that in my Let see if I had it in the report itself, 10 because I was specifically looking for that type 11 of information, for obvious reasons. 12 13 MS. FLANNERY: Do you have a page cite, by chance? 14 MS. FITZPATRICK: 57/17 to 57/21, 59/11 15 to 59/23, Page 60, Line 7 to Page 60, Line 14. 16 61/1 to 61/11. 17 testimony so we can show it to you. 18 19 20 21 22 We are pulling up the deposition THE WITNESS: I have something in my report. MS. FITZPATRICK: Sure. Why don't you tell me what you have in your report. THE WITNESS: In my report on this issue 23 Ravon's deposition says he ate paint chips, but 24 only at Locust Street. 25 eating paint chips anywhere else. He does not remember Page 357 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 BY MS. FITZPATRICK: Q 3 How old was Ravon at North Sixth Street when he got poisoned? 4 MR. DOUGLASS: 5 THE WITNESS: Object to the form. It's very hard, for the 6 same reason I said a minute ago, because he was 7 back and forth between a lot of different 8 addresses. 9 time of his first venous. 10 11 So we can see how old he was at the He was 33 months old. BY MS. FITZPATRICK: Q And you wouldn't expect someone to remember what 12 they were doing when they were 33 months old, 13 correct? 14 15 16 MR. DOUGLASS: Object to the form. BY MS. FITZPATRICK: Q 17 That wouldn't be the most reliable testimony of what a 33-month old was doing? 18 MR. DOUGLASS: 19 THE WITNESS: Same objection. I think I don't really 20 have an opinion on whether these people's 21 testimony is reliable or not. 22 23 BY MS. FITZPATRICK: Q What were you doing at 33 months? 24 MR. DOUGLASS: 25 THE WITNESS: Object to form. I have forgotten, but I'm Page 358 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 a lot older than he was. 2 MS. FITZPATRICK: I'm a little bit 3 younger than you, and I have no idea what I was 4 doing at 33 months. 5 6 BY MS. FITZPATRICK: Q Generally you look to caregivers to provide 7 testimony about what a young child is doing, 8 correct? 9 A I would say that's probably correct, yes. Moving 10 on, Deleasia Conley, which I think was a sister, 11 correct me if I'm wrong, testified at deposition 12 that she never saw chipped or peeling paint at 13 Sixth Street, and she never saw him eating paint 14 chips, chewing surfaces or even hear anyone else 15 say he had put paint chips in his hands. 16 Ciara, who I think was the younger 17 sister, testified at deposition that she recalled 18 him eating chipped paint at Sixth Street and 19 seeing him eat a few paint chips two or three 20 times at North Sixth Street. 21 testimony is directly contradicted by the 22 testimony of her older siblings, Ravon and 23 Deleasia. 24 we might want to discount her testimony. 25 However, her So, you know, she was very young, so In addition, LaFondra, the aunt, Page 359 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 testified she never saw Ravon Owens eat or handle 2 a paint chip, and I have no evidence from any 3 source that he chewed on any painted surfaces. 4 So I don't have anything in my report about the 5 mother, so if you want to show me something. 6 There's a lot of material, a lot of depositions, 7 so... 8 Q That's so dot, dot, dot. I'm going to show you, and I apologize that this 9 is a digital copy, but this is a digital copy of 10 Deshawna Conley's deposition, and she testifies 11 here that she recalls seeing paint -- chipping 12 and peeling paint in the windows, correct, of the 13 North Sixth Street house. 14 ahead and scroll up and down and make sure that 15 we're looking at the same thing. 16 A If you want to go She's talking about mopping. Do you recall 17 seeing any chipping or peeling paint, and she 18 said in the windows. Any other rooms, no. 19 Q If you go down to Page 59. 20 A She did say in the windows. 21 Q Fifty-nine. 22 MR. DOUGLASS: Fifty-nine? Dr. Magee, the reporter 23 is going to have a difficult time when you are 24 kind of mumbling. 25 loud. You are kind of talking out Page 360 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 THE WITNESS: 2 MS. FITZPATRICK: 3 6 You are thinking out loud. 4 5 Sorry. THE WITNESS: I'm not saying anything. BY MS. FITZPATRICK: Q Page 59, Line 11 to 59, Line 23: 7 "Question: You said you saw some was it 8 chipping or peeling paint in some of the windows 9 inside the house? 10 Answer: 11 Question: 12 Answer: The room where the four windows are at. 15 16 Question: Answer: 18 Question: Yeah. Answer: 21 Question: 23 24 25 And I think you said there were three or four windows in there? 20 22 The front living room was one? 17 19 Which rooms do you recall seeing that in? 13 14 Yes. Yes, I did. Which window did you see that in? Answer: I'm not for sure, but I know it was in the front." Do you see that, too? Page 361 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 A I see those words, yes. 2 Q Okay. 3 A But I don't know that it's Sixth Street versus 4 another house, so let me see where that is 5 stated. 6 they are talking about. 7 questions and answers, but I don't see which 8 house they are referring to. 9 I do not see any reference to what house MS. HOLCOMB: 10 There's a lot of This is where it says it's Peggy's house, which is North Sixth Street. 11 MR. DOUGLASS: 12 What page are you looking at? 13 THE WITNESS: I'm looking at 42 right 14 now going down to 43. So it does not give the 15 address. 16 It just says who owned it, Peggy. BY MS. FITZPATRICK: 17 Q Do you remember what house Peggy Conley owned? 18 A I would have to look it up. 19 I will take your word for it. 20 Q Okay. If you can go down to Page 61/6 to -- 21 A Well, I need to scan down, because it could have 22 changed from Peggy's house to another house 23 between there and here. 24 40 something? 25 Q What page were you at, Forty-two. Page 362 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 A July 13, 2017 I think you are right. 2 changed. 3 Peggy's house. I don't think it's I think they are still talking about 4 Q Could you go down to 61, Line 6 to 61/11? 5 A I'm sorry. I'm still scanning. Who would have 6 purchased the furniture, Peggy. So we're still 7 on Peggy's house. 8 Q Page 16, Line 6 to 61, Line 11. 9 "Question: Tell me what you recall 10 about the chipping and peeling paint in the 11 windows of the living room. 12 Answer: I just recall it was there in 13 the living room in the windows, but it didn't 14 dawn to me to keep -- I remember, because that's 15 what Ravon was eating." 16 Did you see that before? 17 A I do see that. 18 Q And if you could then go down to Page 105/19. 19 A It takes a second. 20 Q Sure. 21 No problem. I think it's actually on Page 106. 22 There's a question: 23 "Question: You mentioned that with 24 respect to the windowsill you saw him playing 25 with some paint chips that were sitting in the Page 363 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 windowsill, is that right?" 2 "Yes." 3 4 And the answer is, Do you see that testimony from the mom? A I do. I think I have to reserve the right to go 5 through quietly and make sure that's all still 6 Sixth Street, but I do see that. 7 Q Of course. 8 Okay. 9 Assuming that that is all the Sixth Street, you will agree with me that there 10 is evidence separate and apart from the 11 inspection report that we debated that there was 12 chipping and peeling paint at the North Sixth 13 Street address, correct? 14 MR. DOUGLASS: 15 THE WITNESS: Object to the form. Well, there's testimony 16 evidence, there's not objective evidence by 17 agencies. 18 19 BY MS. FITZPATRICK: Q Okay. And there's also testimony evidence that 20 Mr. Owens put paint chips in his mouth at that 21 location, correct? 22 A Yes. 23 Q Can you agree with me, to a reasonable degree of 24 scientific certainty, that the lead-based paint 25 in Mr. Owens' home at 3626 North Sixth Street was Page 364 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 a source of his lead exposure? 2 MR. DOUGLASS: 3 THE WITNESS: 4 5 6 Object to the form. It was likely a source of exposure. BY MS. FITZPATRICK: Q Okay. And in that case we have a completed 7 pathway of exposure because we have evidence of 8 him actually putting the paint chips in his 9 mouth, correct? 10 MR. DOUGLASS: 11 THE WITNESS: 12 13 14 Object to the form. We have testimony evidence. BY MS. FITZPATRICK: Q Okay. Do you have any reason to -- do you have 15 any contrary evidence? 16 that he did not put paint chips in his mouth at 17 that location? 18 A Do you have any evidence Well, I don't know how I say this nicely, but 19 this group of individuals does not agree on where 20 they were living even at certain times. 21 interrogatories give timelines and addresses and 22 dates that do not agree with testimony that do 23 not agree with Health Department records, so I 24 think there's some reason to doubt testimony. 25 merely need to say, yes, there is deposition The I Page 365 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 testimony. Q Okay. And if the mom is right, there's a 3 completed pathway of exposure for lead-based 4 paint for Mr. Owens at the North Sixth Street 5 address, correct? 6 MS. FLANNERY: Objection. 7 MR. DOUGLASS: Object to the form. 8 THE WITNESS: 9 Well, let me check. There is evidence in that front window, if we believe 10 the testimony evidence that he ate chips, but 11 what data do we have that shows that there's 12 lead-based paint in those chips. 13 the city, rather, did not collect any data in 14 1993. 15 The state or In 2007 the window well in the living 16 room was negative, because it had been replaced, 17 so we don't know. 18 windows, so we don't know whether there was any 19 lead at that location where the mother testifies 20 that he ate paint chips. 21 22 We have no data from those BY MS. FITZPATRICK: Q Did you look at additional sources of Mr. Owens' 23 lead poisoning from the North Sixth Street 24 address? 25 A Yes. Page 366 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q Okay. July 13, 2017 And did you consider -- I think we have 2 identified soil and water in these cases as other 3 likely sources. 4 sources here, too? 5 A Do you consider those likely There is testimony that he played in soil at 6 Sixth Street, and we have soil data throughout 7 Milwaukee and nearby, so, yes, soil is a 8 potential source. 9 the pipes, as were the others, so, yes, that's 10 11 And his house was served by also a potential source. Q Okay. Now looking at the water, did you look to 12 see whether there's testimony about whether 13 Mr. Owens drank the tap water while living at the 14 Sixth Street address? 15 A I did look. Peggy Conley testified that she did 16 not filter or flush when she produced water, and 17 Latasha Conley said she did not filter or flush. 18 LaFondra Thomas testified that Ravon's formula 19 was made with tap water. 20 21 Q Okay. Did you look at the mom? Dashawna Conley's testimony? 22 23 24 25 Did you look at MS. FLANNERY: Objection, asked and answered. THE WITNESS: Well, I don't have anything from Deshawna, so I'm wondering were Page 367 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 there two depos or two reports for Deshawna? 2 MS. FITZPATRICK: I don't know whether 3 you looked at this or not. 4 to it in -- I do see reference in your Owens 5 notes report you reference at 26, Deshawna Conley 6 testimony. 7 room windows. 8 12 MS. FITZPATRICK: So that Right. BY MS. FITZPATRICK: Q 13 14 Yes, I see that. confirms what we were looking at a second ago. 10 11 Ravon ate paint chips from the living THE WITNESS: 9 I don't see reference I'm wondering if you looked at his mother's testimony about water? A Well, I certainly looked and I probably searched 15 on the key word, but I don't have anything in my 16 notes. 17 to show me, I'd be happy to look at it. 18 Q Sure. 19 Again, if you've got something you want It's Page 72. Ms. Conley was asked: "Question: Do you know whether there 20 were any problems with the water service to the 21 house? 22 Answer: 23 Question: 24 25 Not that I recall. Did you drink the tap water when you were there? Answer: No. Page 368 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 Question: 2 Answer: 3 Question: 4 Why not? I just don't drink tap water. Do you know whether Ravon drank tap water while he was there? 5 Answer: 6 Question: 7 Answer: 8 A Clarification. 9 Q Deshawna Conley. 10 A Oh, Deshawna. I don't think so. You don't think he drank it? No." Who are you talking about now? Well, that's missing from my 11 report, but Peggy said, because Peggy was 12 actually taking care of him much of the time, she 13 testified that she used unfiltered tap water for 14 drinking and cooking at -- Oh, this is 26th 15 Street. 16 Q No, we are talking about 26th Street now. 17 A Oh, Sixth Street. 18 Q Or Sixth Street now, yes. 19 MR. DOUGLASS: 20 MS. FITZPATRICK: 21 22 I'm sorry. What address? 3626 North Sixth Street. THE WITNESS: There's also a 26th 23 Street, so let's go back to Sixth Street. Peggy 24 Conley gave Ravon Owens tap water to drink when 25 he stayed at North Sixth Street. She also stated Page 369 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 that she did not flush the lines before using tap 2 water for drinking or cooking. 3 people saying this and some people saying that. 4 5 BY MS. FITZPATRICK: Q And Ms. Conley, his mother, testified: 6 7 "Was Ravon given baby formula while he was at the house? 8 Answer: 9 Question: 10 Yes. Answer: 12 Question: 13 Answer: 14 Question: Me. Would you have mixed the baby formula with the tap water at the house? Answer: 17 Question: Bottled water. You used bottled water for the baby formula? 19 Answer: 20 Question: 21 Answer: 22 Question: 23 Anybody else? No. 16 18 Who would have given him that? 11 15 So we have some Yeah. Every time? Yes. Did you ever make juice for Ravon with the tap water there? 24 Answer: No." 25 So there's at least, you would agree, at Page 370 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 a minimum conflicting testimony as to whether 2 Mr. Owens even drank the tap water while he was 3 at the North Sixth Street address, correct? 4 A I would say there's conflicting testimony. 5 Q Okay. And there's at least some testimony that 6 at least some portion of the water that he was 7 drinking at the time was from a bottled source 8 and not from the tap, correct? 9 A 10 11 I would say there is testimony to that effect. What actually happened, I don't know. Q 12 So you don't know how much water he drank from the tap, correct? 13 A I do not. 14 Q And you don't know what the lead levels in that 15 water were, correct? 16 A I do not. 17 Q Okay. 18 19 And you don't have the ability to -- well, let me ask you this. Could the water that was the water from 20 the North Sixth Street address have caused 21 Mr. Owens' blood lead levels in this case? 22 MR. DOUGLASS: 23 THE WITNESS: 24 25 Object to the form. This is just like the earlier questioning about Mr. Sifuentes. MS. FITZPATRICK: Yes. I have to ask Page 371 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 you it again because it's a different -- 2 THE WITNESS: Yes, a different person. 3 If I can recall exactly what I said before. 4 think I just have to say we don't know, because 5 we have cases in the literature of blood lead 6 being very high from drinking water that's very 7 high. 8 water, but the pulses that happen when particles 9 get shaken loose and get into the bottle or the 10 11 I Not from the average amount that's in the glass. BY MS. FITZPATRICK: 12 Q And we don't know whether that happened here? 13 A We don't know whether it happened or not. 14 Q So I want you to look at your major opinions and 15 your notes. 16 first deposition. 17 It's No. 28. It's the notes to the In your major opinions you have, "There 18 is ample evidence of complete exposure pathways 19 tying non-paint sources of lead to Ravon Owens' 20 blood lead levels." 21 Can you tell me what the evidence of the 22 complete exposure pathway you have tying 23 non-paint sources of lead to Mr. Owens' blood 24 lead levels? 25 A Well, we know that he ate soil. We don't have Page 372 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 soil data from his house, but we know the soil 2 levels throughout Milwaukee are high. 3 have the Health Department stating that their own 4 data shows that they are higher than EPA's 5 criteria, and we know that they are lead pipes 6 serving the Sixth Street house, as well as the 7 other houses. 8 Quantitatively I can't predict how much exposure, 9 but there was exposure. 10 Q Okay. We even So there was exposure. Well, what I'm confused about is you say 11 that there's ample evidence of complete exposure 12 pathways tying non-paint sources of lead to Ravon 13 Owens' blood lead levels, but you say there's no 14 evidence of complete exposure pathway tying white 15 lead carbonate from paint to Ravon Owens' blood 16 lead levels. 17 have for soil and water that you don't have for 18 the white lead carbonate. 19 A So I'm wondering what evidence you Well, for white lead carbonate, first of all, the 20 only evidence that we seem to have is that the 21 mother states that he ate paint chips from the 22 window, and we have no evidence that there's any 23 lead in the window, much less white lead 24 carbonate. 25 we have no specific data. So is it possible? Of course. But Page 373 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q Okay. July 13, 2017 I'm asking a slightly different question. 2 I'm trying to understand why you believe that 3 there's ample evidence of complete exposure 4 pathways for soil and water, but you believe 5 there's no evidence of a complete exposure 6 pathway for the lead-based paint. 7 what is the evidence that you have for soil and 8 water that is above and beyond that which you 9 have for lead-based paint? 10 A Let me review very quickly. I'm wondering So the Health 11 Department found nothing in terms of lead-based 12 paint when they did an inspection. 13 nothing from the Health Department. 14 Q 15 16 We have If your assumption about the inspection report is correct. A There's no evidence. Now was there a report that 17 existed somewhere that is destroyed that we don't 18 have? 19 that they took any data and found any lead-based 20 paint or any chipping and peeling paint. 21 we have is Halverson. 22 I don't know. But there's no evidence So all Halverson did find lead-based paint in 23 various places, and I don't see any complete 24 exposure pathway there from Halverson in terms of 25 accessibility, like where he spent significant Page 374 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 time. 2 were paint chips and he ate them, so that is 3 evidence, but we don't have it linked to lead and 4 we certainly don't have it linked to white lead 5 carbonate. 6 Q Okay. We do have the mother saying, well, there What I'm trying to understand, though, is 7 a slightly different question than that. 8 you have for soil -- what evidence do you have 9 for soil that is greater than what you have for 10 What do paint? 11 Let me maybe ask it this way. 12 saying that there's no evidence that the paint 13 chips that Mr. Sifuentes was -- excuse me -- 14 Mr. Owens was eating contained lead-based paint, 15 correct? 16 MR. DOUGLASS: 17 18 19 You are Could you reask that question, please? BY MS. FITZPATRICK: Q You are saying that there's no evidence that the 20 paint chips that Mr. Owens consumed contained 21 lead, correct? 22 MS. FLANNERY: 23 THE WITNESS: Objection, foundation. The paint chips that are 24 alleged to have been consumed, so I don't know 25 one way or the other, were from the living room Page 375 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 window, and the living room window was tested and 2 found to not have any lead. 3 4 BY MS. FITZPATRICK: Q Okay. So what you are saying is that there's no 5 evidence that the living room window paint chips 6 contained lead, correct? 7 A There's no evidence. 8 Q What evidence do you have, what data can you show 9 10 That's correct. me that there was lead in the soil? A Well, I see what you are getting at, so I'm 11 making an assumption, so why can't I make a 12 similar assumption in this regard, and I think 13 that's a fair question. 14 So I have no more evidence that soil was 15 a complete exposure pathway with lead except for 16 to assume that since lead is in all the soil 17 samples taken everywhere, it must have been 18 there, as well. 19 existed, since there was lead in other locations, 20 there may have been lead there, as well. 21 think it's fair to say we have no information 22 either way for either. 23 Q Okay. And for the paint chips, if they And the same with the water. So I You don't 24 have any data that shows there was actually lead 25 in his water? Page 376 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 A Same thing. 2 3 4 July 13, 2017 MR. DOUGLASS: Object to form. BY MS. FITZPATRICK: Q So you don't actually have more evidence of 5 complete exposure pathways for soil or water than 6 you do for the white lead carbonate, correct? 7 MR. DOUGLASS: 8 THE WITNESS: 9 drank water. Object to the form. We have evidence that he We know that lead is in all water 10 in Milwaukee, especially in neighborhoods. 11 much, I don't know. 12 whether there's any quantitative significance. 13 How But it's all a matter of MS. FITZPATRICK: And I'm really sorry 14 to do this, and I never, ever do this, but I just 15 got a text that I have an emergency with one of 16 my kids. 17 on this, please? Could we take a break and let me check 18 MR. DOUGLASS: 19 MS. FITZPATRICK: 20 (A recess was taken.) 21 THE WITNESS: 22 Or course. I need to revisit something. 23 MS. FITZPATRICK: 24 THE WITNESS: 25 Thank you. That's fine. While we were taking a little break, I was able to review Dashawna's Page 377 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 depo to a larger extent. And I found that while 2 she did say X in certain places, she said not X 3 in other places. 4 that say at 26 that she testified that Ravon ate 5 paint chips from the living room windows to she 6 did not, because on Page 105 of that depo they 7 come back to the questioning, and they say, "I 8 think earlier you said you recalled seeing Ravon 9 play with some paint chips at the Sixth Street So I need to revise my notes 10 location, is that correct? 11 see Ravon eating any of those paint chips? 12 Did you ever see him chewing on any 13 windowsills -- this is now 106 -- at the Sixth 14 Street house? 15 biting any windowsills? 16 you recall him biting or chewing on any doors or 17 door frames and windowsills," and it goes on and 18 on. 19 Yes. Not that I recall. Did you ever No. What about Not that I recall. Do So she did say what we saw together 20 somewhere else in the depo, but then when they 21 came back to it, she recanted and said no. 22 23 24 25 BY MS. FITZPATRICK: Q But he was -- at least he had lead paint chips in his hands? MR. DOUGLASS: Object to form. Page 378 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 THE WITNESS: 2 3 4 July 13, 2017 Well, that's consistent, that he picked them up. BY MS. FITZPATRICK: Q And that can be a pathway for getting lead onto a 5 child's fingers and then into their mouth, 6 correct? 7 MR. DOUGLASS: 8 THE WITNESS: 9 Object to the form. That is one pathway, although it would be of much less significance 10 than eating. 11 sorry. 12 that I change my own summary document. 13 But I do need to request -- I'm Eating a chip. But I do need to request BY MS. FITZPATRICK: 14 Q Sure. Which number is that? 15 A Which is Item 26. 16 Q Okay. 17 A Instead of saying Ravon ate paint chips from the 18 living room windows, it should be Ravon did not 19 eat paint chips from the living room windows. 20 do recall what I did now when I was preparing. 21 read my report, didn't see anything from 22 Deshawna, went back to the depos just to make 23 sure I hadn't missed something, and saw the same 24 text that you saw and put it in my notes. 25 Q I I Okay. Page 379 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 A 2 3 July 13, 2017 But I didn't then go further in the depo and hear her recant that. Q Okay. So that's just a clarification. But we're still at the point that the 4 likely sources of his lead exposure at the Sixth 5 Street address are lead-based paint, lead in soil 6 and lead in water, correct? 7 A And I believe cigarette smoke here, too. Yes, 8 there's also evidence of secondhand cigarette 9 smoke for Owens, as well. 10 Q And who smoked and when did they smoke? 11 A I had a feeling you would ask that, so for that I 12 have to go into the report. It should be a 13 section, not a very long one. 14 my report. 15 Ravon was in her residence. 16 of a complete exposure pathway for inhalation of 17 lead from secondhand smoke and ingestion of lead 18 for settled dust containing cigarette smoke. It's on Page 40 of The record shows Peggy smoked when So there is evidence 19 Q And how often was Peggy in that house? 20 A Boy, I don't recall that. 21 22 This is Peggy's house, so it's how long she owned it. Q I don't recall. Let's turn to the other address, and that's the 23 234 East Locust Street. Now you the last time we 24 were together said that was not a litigation 25 house. I don't understand what you mean by that. Page 380 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 A July 13, 2017 Well, that's a legal issue, so perhaps it's not 2 my territory, but I was under the impression that 3 there had already been a settlement at that 4 address, and that that address was not in play 5 here. But if I'm wrong, I'm wrong. Okay. And you actually, if I'm looking at your 6 Q 7 notes, okay, looking at your major opinions, you 8 do agree that there's evidence of a complete 9 exposure pathway for ingestion of lead-based 10 11 paint at 234 East Locust Street, correct? A Pending or contingent upon believing the 12 testimony about his behavior based on his own 13 testimony, as well as some others. 14 Q And there's also evidence of a completed exposure 15 pathway for ingestion of lead containing dust at 16 that Locust Street address, too, correct? 17 A Dust. So we're at Locust Street. Do we make it 18 to places where he had access and spent time? 19 Let's see. 20 of my opinions. 21 and where they were, but I did have a yes to that 22 when I was writing my report. 23 24 25 Q Okay. Yes, I think so, because that was one I don't recall all the locations Now I want to talk about the water. Do you think that the water at the Locust Street house was a source of Mr. Owens' Page 381 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 lead poisoning? 2 MR. DOUGLASS: 3 THE WITNESS: Object to the form. I think that we have 4 evidence that all of the houses had lead pipes, 5 so I think that's a yes, but let me just 6 double-check. 7 think that's a yes. I can't seem to find it, but I 8 MS. FITZPATRICK: 9 THE WITNESS: Okay. Let me say yes unless you 10 have something to show me that you think 11 contradicts it. 12 13 BY MS. FITZPATRICK: Q Well, did you go and collect the City of 14 Milwaukee databases to see whether there were 15 lead lines to both the North Sixth Street house 16 and the East Locust Street house? 17 A I did. I'm recalling that one of them did not 18 show up because the house got torn down, and so 19 it's no longer on the database. 20 in the neighborhood that is still standing is in 21 the database, and I think that's in my report. 22 I'm just not finding it. 23 that was the Sixth Street address or the Locust 24 Street address. 25 on the database because the house is no longer But every house I can't recall whether But one of them is not actually Page 382 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 there. Q 3 I will tell you that that's the North Sixth Street address. 4 And you believe that's because the house 5 has been torn down, and so the city has taken 6 that address off of the registry? 7 A Yes. Thank you. 8 Q Yep. That's fine. 9 answers. 10 I'm happy to give you I'm happy for you to accept my answers. Now regarding the issue of the water 11 with the East Locust Street, there is testimony 12 from a variety of sources that a big jug of 13 bottled water was used in that house. 14 remember that? 15 A Do you I recall a big jug of water in one of them. It 16 should be in the notes. I do not have that in my 17 notes here, but I do recall reading for one of 18 the addresses about the fact that there was a big 19 jug where they bring in the thing you put it in, 20 the cooler, and push the button. 21 Q Right. 22 A So I do have a recollection of that, yes. 23 Q I'm going to represent to you that that was the 24 testimony about the East Locust Street address. 25 So at least for that address you have testimony Page 383 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 about the availability of both bottled water and 2 tap water, correct? 3 A 4 5 I will just have to say I think so, but I have to go back and read those depos. Q And you don't have a completed exposure pathway 6 for that lead-based water at the East Locust 7 Street address, do you? 8 A 9 Well, during that whole period, during those depos where that questioning occurred, there was 10 also questioning about did Ravon consume any 11 water when he was in the bathtub. 12 played around and probably got some water, so 13 that's part of that testimony, as well. 14 Q And, yes, he Do you think that the amount of water that a 15 child would consume while playing in a bathtub 16 could result in an elevated blood lead level at 17 the levels that you see in Mr. Owens' case? 18 A Of course not. 19 Q Do you think it could even result in an elevated 20 blood lead level above 5 micrograms per 21 deciliter? 22 A Probably not, but I like to be thorough. 23 Q That would just not be a major source of any sort 24 25 of lead exposure for a child, correct? MR. DOUGLASS: Object to form. Page 384 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 THE WITNESS: 2 It would likely not be a major source. 3 MS. FITZPATRICK: Can you just give us a 4 couple minutes? 5 stuff done and then we should be almost through. 6 7 8 I just want to get some cleanup (A recess was taken.) BY MS. FITZPATRICK: Q 9 Dr. Magee, in your last deposition you offered some criticisms of the inspection that was done 10 at Mr. Burton's home. 11 A Oh, Burton. Okay. 12 Q And you had testified I think generally that you 13 believed that -- what you said is, quote, "They 14 made it up a lot in those years. 15 through the houses, they took a quick look, they 16 checked a box, they ordered remediation." 17 Do you remember offering testimony like 18 19 that? A 20 21 They walked Yes, and I actually said it a couple times today, as well. Q What evidence do you have that the Milwaukee 22 Health Department in 1993 was not performing 23 proper inspections of homes? 24 25 A Well, a couple of things. One, the protocol does say that -- the protocol is actually 2005, but Page 385 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 there's an earlier one that says the same thing. 2 I don't believe we have in evidence a protocol 3 from 1993, so that may be where you are going. 4 But certainly in 2004, 2005 the protocol 5 says that you are supposed to specifically pick 6 samples in order to try to find out what the 7 exposures were. 8 requirement, that if there's so many square feet 9 of bare soil, that you have to take soil samples 10 And they even have the bare soil and you have to deal with the soil in the orders. 11 Does that relate to '93? I will have to 12 go back and see if I can find a protocol for '93, 13 so I don't know. 14 Q Do you have any evidence that in Mr. Owens' case, 15 they, being the Milwaukee Department of Health, 16 walked into the house on Sixth Street, took a 17 quick look, checked a box and ordered 18 remediation? 19 A Are we talking Burton now? 20 Q I'm talking about Owens. 21 22 for each of them, but I want a separate record. A Okay. Gotcha. 23 24 25 I'm going to ask you I believe I have evidence -- MR. DOUGLASS: Why don't we reask the question. MS. FITZPATRICK: Sure. Page 386 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 BY MS. FITZPATRICK: Q Do you have any evidence that in 1993 the 3 Milwaukee Health Department walked into the 4 house, Mr. Owens' house on Sixth Street, took a 5 quick look, checked a box and ordered 6 remediation? 7 A The 1993 inspection report available for us to 8 view shows that they took no XRF readings, they 9 did no paint condition assessments, they took no 10 paint, dust, soil or water samples. They did no 11 assessment, so they didn't state that there was 12 any deteriorated paint. 13 orders. All they did was issue 14 Q Okay. 15 A So that leads me to believe, since there's no 16 evidence, that they just simply ordered it 'ala 17 primary prevention, which was another major 18 program that they were operating and probably 19 still do. 20 Q Okay. How long did the inspection take in 1993? 21 A I have no clue. 22 Q Who did the inspection? 23 A I'd have to pull the documents out. 24 Q Feel free. 25 A I don't have them in front of me. Page 387 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 Q You don't have No. 30? 2 A Oh, that's No. 30? 3 Q Um-hum. 4 A Let's find it. 5 Q How long did it take? 6 A I don't see any indication of how long it took. 7 8 9 If you would like to guide me to a specific line. Q No, what I'm trying to get at is you said that you believed that they walked through the house, 10 they took a quick look. 11 there? How long did they spend 12 MR. DOUGLASS: Object to the form. 13 MS. FITZPATRICK: Because I want to talk 14 specifically. 15 about what you thought was done at the time. 16 want to talk specifically about these houses and 17 whether you have any evidence that your belief 18 that they made it up a lot in those years, they 19 took a quick look, they checked a box, they 20 ordered remediation, whether that actually 21 happened in any of the inspections that were done 22 on these properties. 23 24 25 You offered a general opinion I So we can start with Mr. Owens' property first. So start with the Sixth Street address. THE WITNESS: I was not there, so I do Page 388 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 not know exactly what they did. 2 there's no evidence that they took any samples, 3 that they spent any time, that they made any 4 judgments. 5 So if you did an inspection, I would think you 6 would write it up, but I have no knowledge. 7 8 All I know is All they did was issue some orders. BY MS. FITZPATRICK: Q 9 If you would look at Pages 212, 213 and 214, that's the big Bates number, Ravon Owens 212, the 10 bottom of those. 11 A Okay. Gotcha. 12 Q If that is, indeed, for the Sixth Street address 13 and not the First Street address as you surmise, 14 your assessment would be incorrect. 15 have written stuff up, correct? 16 MR. DOUGLASS: 17 THE WITNESS: They would Object to the form. That is correct. If this 18 is actually Sixth Street, then they did look and 19 they noted whether there was chipped or peeling 20 paint. 21 still didn't take any dust samples, but they at 22 least would have checked to see whether there was 23 chipping and peeling paint, which would be a 24 condition assessment. 25 They still didn't take any XRFs, and they BY MS. FITZPATRICK: Page 389 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 Q July 13, 2017 Now looking at the East Locust Street house, 2 there was an inspection that was done. We are in 3 agreement that there was an inspection done on 4 that property, correct? 5 A Yes. 6 Q Do you have any evidence to support an opinion 7 that the inspectors of the East Locust Street 8 made it up a lot, walked into the house, took a 9 quick look, checked a box and ordered 10 11 remediation? A Well, let's see. They did do condition 12 assessments, they looked at a lot of places, and 13 they took XRF readings, so this is a bona fide 14 inspection. 15 Q So you don't have any problem with the inspection 16 that was done or the dust samples and the things 17 that were collected for the East Locust Street 18 address, correct? 19 A Well, I don't see any dust, but I do see XRF 20 readings. There may be dust and I'm not seeing 21 it, but I don't see it. 22 paint chip sample. And they did take one 23 Q I'm looking at 222. 24 A Those are dust samples, so, yes, there they are. 25 This is what you normally see when they do a bona Page 390 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 fide inspection report. Q Okay. All right. Let's go to Mr. Burton's home. 3 Do you have any evidence that any of the 4 inspectors who inspected Mr. Burton's home made 5 up anything, walked into the house, took a quick 6 look, checked a box and ordered remediation? 7 MS. FLANNERY: 8 THE WITNESS: Object to form. I don't have the 9 inspection report in front of me. 10 MS. FITZPATRICK: I apologize. 11 have that one with me, either. 12 THE WITNESS: I don't I can check my notes. So 13 my notes say they found deteriorated paint on two 14 external sills and the basement stairwell. 15 took dust samples on two interior sills, but the 16 substrates were not deteriorated. 17 ordered window treatments. 18 much, but they did something. 19 It's 1320 Locust. 20 2, 3, 4, 5, 6 dust samples. 22 assessments. 23 the pre-wipes. 24 25 And then they So they didn't do Here's the report. Those are the dust samples. 21 They They did 1, They did condition Oh, that's the clearance. Here are So they did some work here. BY MS. FITZPATRICK: Q So you don't have any evidence that your general Page 391 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 observation about how you believe inspections 2 were done actually happened at Mr. Burton's 3 house, correct? 4 MR. DOUGLASS: 5 THE WITNESS: Object to the form. Well, let me modify your 6 understanding a bit. What I said was from my 7 assessment of hundreds of house inspection 8 reports on the previous class action suit, I know 9 that there were many, many times when they did 10 not do any assessments or take any samples. 11 didn't say they do that all the time. 12 said that they did it a lot. 13 in this particular case for Burton. 14 I I just They didn't do it BY MS. FITZPATRICK: 15 Q In Milwaukee or somewhere else? 16 A Milwaukee. 17 Q But that didn't happen in the Burton case, 18 City of Milwaukee. correct? 19 A It does not appear to. 20 Q And it doesn't appear that it happened at the 21 East Locust Street address for the Owens case, 22 correct? 23 A That is correct. 24 Q And you and I just have a disagreement as to 25 whether those 212, 213 and 214 in the Owens Page 392 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 relate to the Sixth Street address or the First 2 Street address, but if they related to the Sixth 3 Street address, then they did it there? 4 MS. FLANNERY: 5 prior testimony. 6 7 8 Objection, misstates Go ahead. THE WITNESS: Then they did it there. BY MS. FITZPATRICK: Q 9 And is there any evidence that the inspection at Mr. Sifuentes' address was done in conformity 10 with this general observation you had made about 11 making it up a lot, walking into houses, taking a 12 quick look, checking a box, ordering remediation? 13 A Well, yes, they didn't do a lot at Sifuentes. 14 They didn't take any XRFs, they didn't take any 15 paint samples, they didn't do any condition 16 assessments of the paint. 17 dusts and they did talk about the condition of 18 the substrate, so they did three, and they marked 19 the paperwork "lead assumed present." 20 check, but we assume it's present because it's a 21 house of a certain age and in a certain zone. 22 Q They did collect three We didn't That would be like assuming there is lead in 23 water because the house is of a certain age and a 24 certain zone, right? 25 MS. FLANNERY: Objection. Page 393 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 July 13, 2017 THE WITNESS: I suppose. So they did a 2 little work in Sifuentes, but not a lot. 3 are nice people. 4 5 BY MS. FITZPATRICK: Q 6 They are nice people, right? MS. FLANNERY: 8 THE WITNESS: 10 They are doing a good job to try to take care of kids, right? 7 9 They Objection. Right. I agree. BY MS. FITZPATRICK: Q 11 Just a couple last questions. Prior to 2003 the inspection protocols 12 don't require inspectors to take water samples at 13 any of these addresses, correct? 14 A 15 16 I have never seen a protocol from the city that says you should collect water samples period. Q And in the time period in question here, prior to 17 2003, soil samples were only required in certain 18 circumstances, correct? 19 A Oh, that's a little tricky. They specifically 20 say you must do it if there are more than so many 21 square feet of bare soil, but they do state more 22 generally that you are supposed to do your 23 inspection in a manner to try to find out what 24 the sources are. 25 So one could say that might include Page 394 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 soil, but we have the inspector, Neil 2 what's-his-name, on record as saying, "We don't 3 normally take soil samples." 4 Q And I'm looking at the 2003 protocol here, and it 5 requires you to inspect soil surfaces adjacent to 6 the dwelling unit, garage or other structures for 7 visible paint chips. 8 exist, they must be removed. 9 included in the Order of Work. If leaded paint chips This should be Then it also 10 says, "If 9 square feet or more of bare soil is 11 present in a yard that may serve as a play or 12 garden area, a composite soil sample must be 13 taken." 14 Do you know in Mr. Owens' Sixth Street 15 house whether there was 9 square feet or more of 16 bare soil? 17 A I do not know anything more than the fact that 18 the brother said it really wasn't a yard, it was 19 more like just bare dirt. 20 would like out of that, but it sounds like it 21 could have been a pretty large area of bare dirt. 22 Besides that statement, I don't know. 23 Q Okay. So we can make what we Do you know whether in the Locust Street 24 house whether there is 9 square feet of bare soil 25 that may serve as a play or garden area? Page 395 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 A 2 3 Locust Street. July 13, 2017 I don't think we have any data one way or the other. Q Okay. Do you know whether in Mr. Burton's 4 residence whether there was more than 9 square 5 feet of bare soil present in a yard that may 6 serve as a play or garden area? 7 A I do not know one way or the other. 8 Q And how about for more Sifuentes' home? 9 Do you know one way or the other whether there was more 10 than 9 square feet of bare soil present in the 11 yard that may serve as a play or garden area? 12 A Oh, boy. I did some Google map searching going 13 to all these addresses and looking around. 14 course the problem with that is you're looking at 15 the imagery from two years ago or whatever, so 16 you really don't know. 17 big area in the Sifuentes house that looked like 18 it was a garden area, which could have been 9 19 square feet, but I'd have to go check that. 20 Q Of But I believe there was a But do you know at the time? Because we're 21 looking at the time the inspection was done. 22 you have any idea? Do 23 A I have no idea. 24 Q Do you have any idea whether there was 9 square 25 feet or more? Page 396 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 A I have no knowledge one way or the other. 2 MS. FITZPATRICK: 3 MR. DOUGLASS: 5 I have a couple follow-up questions, Dr. Magee. 6 8 I think that's all that I have. 4 7 July 13, 2017 EXAMINATION BY MR. DOUGLASS: Q 9 On the first day of your deposition testimony and also earlier today we talked about the IEUBK 10 model. Do you remember that? 11 A I do. 12 Q Why did you use the IEUBK model? 13 A Well, let me state that all of my opinions were 14 formed long before that idea came up, and late in 15 the process of preparing my reports I thought, 16 well, let's see what the government models, and I 17 did IEUBK and I also did the Acute Lead Risk 18 Assessment model from 2016, let's see what these 19 models would predict just to provide some 20 additional evidence that I was on the right track 21 that soil and water were important to exposure 22 parameters. 23 I was not trying to estimate 24 Mr. Burton's or Mr. Owens' or Mr. Sifuentes' 25 blood leads. I was trying merely to ground truth Page 397 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 my testimony that these are important exposures. Q When you said that your opinions were formed 3 before the idea of using this model came up, what 4 do you mean by that? 5 A My opinions were based on my many years of 6 reading hundreds of documents, my knowledge of 7 the lead pipe system in the town, my knowledge of 8 gasoline emissions and deposition to soil and all 9 the literature about dust blowing in areas even 10 where there is not lead paint, and my knowledge 11 of the lead industry, as well as other industry 12 that emit lead, the amount of tons of lead on the 13 TRI database and so forth and so on. 14 So I have ample evidence to conclude 15 that lead paint, and in addition to lead paint, 16 that soil and water are important exposure 17 pathways for children and cannot be ignored and 18 should be assessed when you are trying to figure 19 out what is the cause of a child's blood lead. 20 Those are, in fact, all important. 21 Q 22 23 24 If you were unable to use the IEUBK model, would that change your opinions? A Absolutely not. MR. DOUGLASS: 25 That's all. Thank you. EXAMINATION Page 398 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 2 July 13, 2017 BY MS. FLANNERY: Q I have a couple questions. I want to go to some 3 testimony that you were just discussing with 4 Ms. Fitzpatrick regarding bare soil. 5 indicated I believe that you thought Ravon Owens' 6 brother may have testified regarding bare soil in 7 the Sixth Street yard. 8 testimony? You Do you recall giving that 9 A I do. 10 Q Is it possible that the testimony you are 11 recalling was actually Pedro Sifuentes, the 12 brother of Cesar Sifuentes? 13 A I was just going to say I said that, but I had 14 better check. 15 misremembering Sifuentes versus Owens. 16 the beauty of the three at one time. 17 the case, then it might be right here, although 18 I'm pretty sure I'm going to know the answer here 19 in a second. 20 So it's possible that I was Yes, it was Sifuentes. That's If that's Sifuentes' 21 brother said, and I quote, "I wouldn't call it a 22 yard. 23 Sifuentes house. 24 25 Q Okay. It was more like all dirt." That's the I also wanted to go back to the inspection report that you are unsure whether it pertains to Page 399 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 the Sixth Street location or the First Street 2 location. 3 to? Do you know which report I'm referring 4 A Yes. 5 Q Regardless of which house that applies to, am I 6 correct that the inspection -- the inspection 7 report that you were looking at took no XRF 8 readings? 9 A Can we pull that out again? So it would be the 10 First and the Sixth are Owens, right? 11 very strange. 12 numbers look strange, 2.8, 0.5, 2.8, 2.8, .2, 13 2.8. 14 number. 15 there's something that looks unusual about that. 16 Maybe the data is wrong, but they did take XRF 17 readings. 18 Q 19 20 Well, it's They did take XRFs, but the Why are they all coming up with the same 2.8, 2.8, 2.8, 2.8, 10 and 10. So Are you sure that those are actually XRF readings and not reference to something else? A No, I'm not sure. They are under the column R, 21 which is supposed to be for XRF readings. 22 that have been some code for something else and 23 they put it in column R by mistake, I don't know. 24 25 Q Might And am I correct that there was no condition assessment made? Page 400 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian 1 A July 13, 2017 There were condition assessments, so you are not 2 correct. 3 so they did conditions for the specific locations 4 that they looked at. 5 Q They did see chipping and peeling, C/P, Which was the house that you were referring to 6 when you said they took no XRF readings, no 7 condition assessment, they issued orders at the 8 primary inspection? 9 A 10 It's probably that one, assuming -- Well, let me check that. We're talking Owens, correct? 11 Q Correct. 12 A That's Sifuentes. 13 Q So your testimony was with respect to the 14 15 Sifuentes house? A On that one, yes. The orders were marked primary 16 prevention, and they did no XRFs. 17 with 32nd Street, Sifuentes. 18 Q So that was Thank you for clearing that up for me. 19 Can you say, to a reasonable degree of 20 scientific certainty, that there was lead in 21 water coming from the tap at the Sixth Street 22 House? 23 A Yes, I think so. 24 Q And can you tell me your basis for that? 25 A There were lead pipes there in the day and Page 401 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 throughout that neighborhood. 2 Milwaukee, whenever lead is tested for in the 3 drinking water, you find some lead. 4 not unusual in other cities, as well, because 5 lead can leach out of lead pipes, as well as lead 6 fixtures and so forth. 7 for sure coming out of that tap. 8 9 MS. FLANNERY: And all throughout And that's So there was some lead Those are all the questions I have. 10 Anyone on the phone? 11 MR. WILLIAMS: 12 MR. GRANT: 13 MS. FITZPATRICK: 14 (At 2:11 p.m. the deposition concluded.) Nothing here. Nothing. Nothing further. 15 16 17 18 19 20 21 22 23 24 25 Page 402 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision Ravon Owens v. American Cyanamid Magee, Ph.D., Brian July 13, 2017 1 STATE OF WISCONSIN ) 2 MILWAUKEE COUNTY ) SS: 3 4 I, KATHY A. HALMA, Registered 5 Professional Reporter and Notary Public in and for the 6 State of Wisconsin, do hereby certify that the 7 deposition of BRIAN MAGEE was taken before me at 8 Morris, Manning & Martin, LLP, 3343 Peachtree Road, NE, 9 Atlanta, Georgia, on the 13th day of July, 2017, 10 commencing at 9:00 a.m. 11 I further certify that I am not a 12 relative or employee or attorney or counsel of any of 13 the parties, or a relative or employee of such attorney 14 or counsel, or financially interested directly or 15 indirectly in this action. 16 17 In witness whereof, I have hereunto set my hand and 18 affixed my seal of office on this 23rd day of July, 19 2017. 20 21 ____________________________ 22 Kathy A. Halma 23 Notary Public in and for the State of Wisconsin 24 My commission expires September 30, 2017. 25 Page 403 Halma Reporting Group, Inc. 414-271-4466 One Group; One Vision