Bondex Trial Transcript 1/7/13
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Martin - Recross/Dorsey 220
A Right.1
Q -- of the document and youll see referenced small package2
joint treatment kits for the consumer market.3
A Thats right, yeah, this is what I was thinking of.4
Q Again, is this the kind of document that you referred to5
to confirm your economic analysis that these larger joint6
compound manufacturers were likely in the do-it-yourself7
market?8
A Thats right.9
Q Thank you, Dr. Martin, those are the only questions I10
have.11
THE COURT: Mr. Dorsey.12
MR. DORSEY: Im cleaning up, Your Honor, I promise.13
RECROSS EXAMINATION14
BY MR. DORSEY:15
Q Dr. Martin, do Exhibits 27, 28, and 29 tell you anything16
about how much of the do-it-yourself market any one of those17
three companies had?18
A No, theres no volume information on that.19
Q Thank you.20
MR. DORSEY: Thats all I have, Your Honor.21
MR. FINCH: One last question, Your Honor.22
THE COURT: Mr. Finch.23
MR. FINCH: Yes.24
RECROSS EXAMINATION25
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Martin - Recross/Finch 221
BY MR. FINCH:1
Q The economic analysis you just testified to today, youve2
never testified to that in an individual asbestos personal3
injury case where Bondex was a defendant and there was a jury4
in the box and Mr. Evert was -- or anybody like him was5
defending Bondex and there was a plaintiffs lawyer6
representing --7
THE COURT: Would you like to -- how many, how many8
clauses, Mr. Finch? How about one at a time?9
(Laughter)10
Q Let me just simplify it. Youve never testified --11
youve never testified in an individual asbestos personal12
injury case where Bondex was the defendant where it was a jury13
trial about either economic analysis you presented to date,14
correct?15
A Thats correct.16
Q Thank you.17
MR. EVERT: Your Honor, may the witness be excused?18
THE COURT: Anyone calling Dr. Martin again?19
UNIDENTIFIED SPEAKER: No, Your Honor.20
THE COURT: All right. Youre excused, Dr. Martin,21
thank you.22
THE WITNESS: Thank you.23
MR. FINCH: Your Honor, may I also be excused for the24
balance of the day being that I dont believe I have any more25
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witnesses today?1
THE COURT: Yes, Mr. Finch.2
MR. FINCH: Thank you.3
THE COURT: Is this an appropriate time for a recess?4
MR. EVERT: Thank you, Your Honor. Yes, it is.5
THE COURT: All right. Well take a ten-minute6
recess.7
(Audio off)8
MR. EVERT: Thank you, Your Honor. First as a9
housekeeping matter, Your Honor, we have tendered to the Court10
Debtors Exhibits 21, 27, 28, and 29 and I believe they are all11
without objection so we would formally move their admission.12
MR. SHEPPARD: No objection, Your Honor.13
THE COURT: All right. 27, 28, and 29 are admitted.14
MR. SHEPPARD: And, Your Honor, as a housekeeping15
matter from the ACC we would move E-113, E-165, E-171.16
THE COURT: Wait, Im sorry, E-113?17
MR. SHEPPARD: E-113.18
THE COURT: Okay.19
MR. SHEPPARD: E-165.20
THE COURT: All right.21
MR. SHEPPARD: E-171, E-426. And did you move Debtor22
19 in?23
UNIDENTIFIED SPEAKER: No, but we will. Wed be24
delighted to.25
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MR. EVERT: Well be glad to.1
MR. SHEPPARD: Would you please?2
MR. EVERT: Yeah. If you would add to that list3
Debtor 19, Your Honor, and Debtor 21.4
MR. SHEPPARD: No objection, Your Honor.5
THE COURT: All right. Theyre all admitted.6
MR. EVERT: Thank you, Your Honor. Your Honor, we7
would next like to publish the deposition of Harry Lafkas8
(phonetic) who is a United States Gypsum Company salesman and9
this deposition was taken in the underlying tort litigation and10
it is relevant to the testimony that Dr. Martin just gave.11
We have one dispute that I think we need to resolve12
with the Court first which is the debtors were operating under13
the assumption that the purpose of a timed trial would be to14
limit the Courts work in terms of the evidence that would be15
reviewed by the Court in association with this estimation and16
as a result we made our deposition designations under the17
assumption that we would be reading into the record the short18
deposition designations and it would count against our time.19
I think the ACC and the FCR were operating under the20
view that the deposition designations that they tendered which21
were much more lengthy would be just given to the Court to22
review at the conclusion of the case. And if thats what were23
going to do then we need to add a lot more designations in24
order to counter what they have designated. But our thought25
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was that we would just read them into the record, that way the1
Court would have a finite record and we would be consistent2
with the timed nature of the trial.3
THE COURT: All right. Well my typical practice has4
been to take the depositions outside court unless you have a5
witness here for cross examination purposes. However, if6
youre going to designate the entire deposition transcripts,7
two things, (i) I refuse to read them in the little four-page8
blocks. My eyesight is absolutely not good enough. I tried to9
read some of them over the weekend and literally I gave up. I10
cannot see them and Im not going to go buy a magnifying glass11
just to read four-page depositions so I want larger prints and12
then I am happy to read them.13
However, the other issue is if youre designating14
entire depositions youre going to have to make good use of15
those depositions in your proposed findings of fact and16
conclusions of law because as you know Im on a short17
turnaround time for this and I intend to get this opinion done18
before my retirement. So youre going to have to be very19
explicit in proposed findings and conclusions of law as to what20
those transcripts are all about and where theyre relevant.21
Other than that I dont have a preference. If you22
choose to proceed by reading them here thats fine, if you23
prefer to save some of your time for something else and have me24
read them later Im happy to read them later. If you want to25
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designate additional parts certainly Ill give you time to do1
that based on this misunderstanding.2
MR. EVERT: Thank you, Your Honor.3
THE COURT: So which way do you want to do it?4
MR. SHEPPARD: Your Honor, if I may and I think Mr.5
Evert summed it up, there was an honest misunderstanding here.6
And we had offered before that the debtors could certainly7
designate additional transcripts given their difference of the8
understanding from ours.9
I would also suggest, Your Honor, that to the extent10
we need to redo these, and we obviously will, we will make sure11
and go back that we are only designating that which is12
absolutely going to be part of our briefing.13
THE COURT: All right.14
MR. FINCH: Your Honor, just to emphasize. Being15
familiar with the Courts practices in prior trials we tried to16
exercise restraint in the designations that we have identified17
so far and it was out intention to incorporate them into the18
findings, conclusions, and the briefings. We never thought19
that you were actually going to just skim through each and20
every designation. We would direct Your Honor to the21
designations that we believe are the most significant in the --22
THE COURT: All right.23
MR. FINCH: -- in the briefing.24
THE COURT: And youre going to do that in the25
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proposed findings and in the briefs?1
MR. FINCH: Yes, Your Honor.2
THE COURT: All right.3
MR. SHEPPARD: And, Your Honor, I guess lastly is is4
that to my knowledge I dont think anyone has designated a full5
transcript of the deposition here. I think the designations6
were giving to the Court with the full transcript with the7
designations blocked as Your Honor said she didnt want it. So8
again to echo what Mr. Herron said I think we were trying to be9
judicious.10
THE COURT: Okay. Thats fine. Its just that my --11
with the visual acuity problem I have I would prefer larger12
rather than smaller, although I did have a lawyer at one point13
in time who gave me a disclosure statement with one letter14
printed per page, I really dont need it quite that large.15
(Laughter)16
THE COURT: But something between the two would be17
helpful.18
MR. EVERT: Your Honor, I think what we can do given19
that its the Courts preference to take the depositions at the20
conclusion of the case, that will give us some time to put21
together a joint admission of the deposition where we give you22
the designated portions of the deposition in large font so that23
then you can review the depositions, just the designations, and24
theyll be clearly marked for you.25
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THE COURT: Yes, I think that would be helpful and1
unless there is a reason why you care who designated them, I2
dont particularly care. In the federal system once evidence3
is admissible it belongs, in quotes, to everyone and so I dont4
-- it doesnt matter to me unless there is an objection by one5
side to another who designated the depositions. If that6
shortens your time thats fine with me.7
MR. EVERT: And thats certainly fine with us, Your8
Honor. So what we will do is well maybe take a week or so9
after the conclusion of the evidence to add our designations10
that we didnt put in because of this misunderstanding and then11
well work with the other side to get to the Court soon12
thereafter full designations of the depositions in large font13
so that you can then just go through them at your opportunity.14
THE COURT: Is that all right with the FC --15
MR. SHEPPARD: Thats acceptable to the ACC, Your16
Honor.17
THE COURT: Okay.18
MS. ZIEG: We actually already have the designations19
done for each side so well just give you a copy and then you20
can just add to them.21
MR. EVERT: Sure. Whatever. Well work that out Im22
sure.23
THE COURT: All right.24
MR. EVERT: Excuse me. Your Honor, Im sorry. We25
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228
had planned to read these depositions next. Since there is no1
need to do that before the Court and we can simply cite to them2
later, I want to inform the Court a little bit about schedule,3
you know, one of the issues that we run into with any timed4
matter like this is trying to make the witnesses fit the slots5
that you have.6
We have witnesses who are required to begin and7
complete their testimony tomorrow, we have others that are in8
the same boat for Wednesday, some of which are the ACC and9
FCRs which we are going to take out of order.10
And so it seems to me that the most efficient use of11
the Courts time and of the time we have for the trial would be12
if we could start one of our witnesses Dr. Mullin today but13
then were going to have to interrupt his testimony for the14
other witnesses coming tomorrow and we can then add --15
THE COURT: Thats fine.16
MR. EVERT: -- him back in later. Is that acceptable17
to Your Honor?18
THE COURT: Thats fine with me. Does anybody object19
to that process?20
MR. SHEPPARD: No, of course not, Your Honor.21
THE COURT: Thats fine.22
UNIDENTIFIED SPEAKER: Fine with me.23
THE COURT: Thank you.24
MR. EVERT: So we would call Dr. Charles Mullin to25
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the stand, Your Honor.1
COURTROOM DEPUTY: Please raise your right hand.2
CHARLES HENRY MULLIN, DEBTORS WITNESS, SWORN3
COURTROOM DEPUTY: Please be seated and speak into4
the microphone.5
DIRECT EXAMINATION6
BY MR. EVERT:7
Q Could you state your -- oh, Ill get over the microphone8
-- could you state your full name for the record please, sir?9
A Charles Henry Mullin.10
Q And, Dr. Mullin, where are you employed?11
A Im currently working at Bates White.12
Q And what do you do at Bates White?13
A I am an economic consultant. I work mostly in the areas14
of environmental and product liability.15
MR. EVERT: Your Honor, by agreement of the parties16
the CVs of the witnesses weve agreed are coming in and also17
under the agreement earlier in terms of demonstratives in terms18
of the reports. If I could offer the Court a copy of Dr.19
Mullins CV --20
THE COURT: Yes.21
MR. EVERT: -- and copies of his reports.22
MR. SHEPPARD: Without objection, Your Honor.23
THE COURT: Thank you.24
MR. HERRON: No objection.25
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THE COURT: Thank you.1
MR. EVERT: His CV, Your Honor, has been marked as2
Debtors Exhibit 97.3
THE COURT: All right.4
MR. EVERT: And, Your Honor, Dr. Mullins affirmative5
report has been marked as Debtors Demonstrative is it 9? Are6
we up to 9 I think?7
THE COURT: Yes.8
MR. EVERT: Yes. And his rebuttal report is marked9
as Debtors Demonstrative 10.10
THE COURT: All right. Thank you. The report is 9,11
the rebuttal report is 10?12
MR. EVERT: Yes, Your Honor. Okay. Were getting13
organized.14
THE COURT: Thank you.15
MR. EVERT: Thank you, Your Honor.16
Q Okay. Sorry, Dr. Mullin. I have put in front of you a17
copy of your curriculum vitae. Is that reasonably correct?18
A The only thing to my knowledge that it would be missing is19
I was deposed last Friday.20
Q Could you tell me, Dr. Mullin, briefly your educational21
background?22
A I received my undergraduate degree in 1992 from the23
University of California at Berkeley in mathematics and24
economics and I received my Ph.D. in economics from the25
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University of Chicago in 1998.1
Q And after you received your Ph.D. what did you do in the2
working world?3
A My primary employment was as -- on the faculty as an4
assistant professor at Vanderbilt University in the economics5
department.6
Q And I think you also served to sit on the faculty at the7
University of California Los Angeles, is that true?8
A I took one year of leave when I was at Vanderbilt9
University and I took that year leave during the calendar year10
of 2002 at UCLA.11
Q And have you previously been involved in the forecasting12
of asbestos-related liabilities?13
A Frequently.14
Q Would you tell me about that experience please?15
A I transitioned from really an academic career into16
economic consulting about ten years ago. Since then the17
largest component of my work has been really asbestos-related,18
probably half to two-third of that, more in an insurance19
coverage setting. The remainder of that work either related to20
bankruptcy or other types of financial reporting, disclosures,21
due diligence, projects for potential acquisitions, potentially22
some insurance underwriting type activities.23
And across those contexts whether its negotiating24
settlement in an insurance coverage case or its an asbestos25
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bankruptcy, the quantum of future loss that a policyholder or a1
debtor may face is a relevant issue.2
Q And what other types of work have you done in economic3
consulting at Bates White other than asbestos?4
A Its been a wide array of different mass tort,5
environmental tort type issues so Ive done work related to6
silica, Ive done work related to various types of7
environmental cleanup, Ive done work on a couple projects8
related to tobacco. Im sure theres some others. Theres9
food additives. Theres a few different things in there.10
Q How large a firm is Bates White?11
A Its I think in the neighborhood of 175 employees at this12
point in time.13
Q And what does Bates White do primarily in the economic14
consulting world?15
A Most of the work of the firm is focused in one way or16
another on litigation. It really varies by the practice areas17
in the firm, whether thats a formal state level litigation,18
whether thats something like going in front of the FTC or the19
DOJ on merger related work, but its all related to litigation20
in some frame work with maybe 10, 15 percent of the work on21
non-litigation matters.22
Q Have you published in the field of economics?23
A Yes.24
Q Tell me what kinds of things you have published.25
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A While I was an academic my research really focused on what1
I would describe as robust estimation techniques. Its an area2
within econometrics so econometrics is really the application3
of statistical analyses to the types of problems that4
economists look at.5
And robust estimation is really trying to figure out6
ways of instead of coming up with an answer, so instead of7
saying the answer is, you know, five and Ive done the analysis8
and invoked the assumptions, its to weaken the assumptions and9
really come up with a more reliable estimate that has a broader10
range.11
So instead of maybe reaching a conclusion that the12
answer to some question is five, you say with a high level of13
confidence I know it falls between four and a half and five14
point three.15
Q You mentioned econometrics. Is that a subset of the field16
of economics?17
A Its one of the primary fields so at this point when you18
go to graduate school in economics your first-year course work19
typically is broken into three areas, microeconomics,20
macroeconomics, and econometrics. And its kind of one of the21
core sets of curriculum in the beginning and then it was one of22
the two fields that I specialized in in my more advanced23
graduate work.24
Q In the articles that you described earlier that you had25
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published in the field of economics and econometrics, were1
those in peer reviewed economic literature? I mean what types2
of journals?3
A The large majority of what I published while I was an4
academic was in peer review journals. There was also a couple5
that would not be characterized that way.6
Q Have you previously served as an expert in litigation?7
A Yes.8
Q Have you previously served as an expert in9
asbestos-related estimation litigation?10
A In many of the cases I have from many of the coverage11
cases, thats an element of it, and in the bankruptcy context12
the only place where I actually testified in court would have13
been the plant insulation confirmation hearing.14
Q Other than the times that you have testified in court have15
you served as an expert in asbestos-related estimation16
litigation?17
A I have been retained numerous times.18
Q And have you been accepted as an expert in the -- at the19
time you have been proffered as an expert?20
A Yes, I have.21
MR. EVERT: Your Honor, we would tender Dr. Mullin as22
an expert in the field of economics, econometrics, and the23
estimation of asbestos-related liabilities.24
MR. SHEPPARD: Your Honor, may I?25
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THE COURT: Yes.1
VOIR DIRE EXAMINATION2
BY MR. SHEPPARD:3
Q Good afternoon, Dr. Mullin.4
A Good afternoon.5
Q Now you testified that you had published peer reviewed6
articles in the field of econometrics as an academic. So those7
would have been published more than ten years ago?8
A I think the publication lags in economics, it can be quite9
long, so I could look. It was all research I did more than ten10
years ago, but many of the publications themselves would have11
actually come out in print more recently.12
Q How recent?13
A I can look. I have two publications, one in the Journal14
of Econometrics which is the Identification and Estimation with15
Contaminated Data, When Does Covariate Data Sharpen Inference,16
from 2006, and a second one which is Recombinant Estimation for17
Normal-Form Games with Applications to Auctions and Bargaining18
in Games and Economic Behavior also in 2006. Those would be19
the two most recent peer reviewed publications.20
Q Have you ever published a peer reviewed article, Dr.21
Mullin, in which you laid out the methodology that you employed22
in this case? And let me be more specific if I can. Where you23
laid out the methodology where you disaggregate the asbestos24
liability by subtracting complicit costs as well as reallocated25
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liability as a result of joint and several liability.1
A I havent published any peer reviewed in the academic2
sense of a peer reviewed article on asbestos directly, only on3
the types of estimation techniques that I would be employing to4
make those, draw those inferences.5
Q So youve never published an article where you discussed6
the methodology to use -- you used in this case, is that7
correct?8
A I said theres a line --9
Q In an asbestos case.10
A -- theres a line there which is in terms of the11
methodologies, I view the methodologies that Im employing very12
much draw upon the types of research I did and the articles I13
published methodologically of how do you draw inference in this14
type of a setting. Having done an application of that in an15
asbestos setting, I have not published an article that applies16
those techniques to an asbestos-related setting.17
Q Okay. And my question was really quite specific, Dr.18
Mullin. Did you ever publish an article where you discussed19
your theory of implicit defense costs in an asbestos20
estimation?21
A Would I consider it -- the theory Im relying on is the22
theory that comes out of the law and economics literature, its23
not my theory. But that theory --24
Q Dr. Mullin, I get that. The question was really simple25
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and Id ask you to just answer the question.1
A I said, no, I havent published a specific article on2
asbestos-related litigation.3
Q Okay. Now you also testified that you have provided4
economic consulting and in particular with regard to asbestos5
estimation in the insurance field, is that right?6
A Well in insurance I am frequently retained in7
coverage-related litigation matters.8
Q Okay. And does that relate to estimating asbestos9
liabilities for certain defendants?10
A In a coverage setting normally the future liability is11
handled more on a declaratory judgment fashion. But for all of12
the settlement discussions a common way of those cases ending13
is by commuting the insurance policy. So the insurer will14
write a lump sum check today that absolves them of any15
obligations under the policy.16
And so a major piece of all of those is always17
forecasting what the future liabilities will be, allocating18
them to the insurance to come up with what would be a19
reasonable size check to commute the policies.20
Q Okay. Can we assume, Dr. Mullin, that you have never in21
those retentions used the methodologies that we are talking22
about here in terms of implicit defense costs and reallocation23
of liability as a result of joint and several shares in the24
insurance field?25
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A I have used them. I have used them in a different manner1
than here. But the reallocation issue actually has come up2
frequently in insurance coverage settings. The transaction3
cost arguments mean most insurance covers both defense costs4
and settlement payments. And since the insurance covers both5
the distinction is not normally relevant.6
Q So thats a no?7
A So on the transaction cost component no, on the8
reallocation component in a coverage setting yes.9
Q Okay. Now you also testified that you provide services10
with regard to companies doing due diligence, correct?11
A Correct.12
Q Okay. And does that also involve the estimate of asbestos13
liabilities?14
A Its typically depending on how extensive the liabilities15
have been historically, is focused on the total quantum of loss16
from an economic sense, settlement payments, defense costs all17
lumped together. The distinction at times is made between18
settlement payments and indemnity, particularly if the company19
still has primary insurance limits available where it would be20
paying defense in addition to those limits, so that distinction21
would affect the economics of the transaction.22
Q And with regard to your work in financial reporting, do23
you -- have you ever used the methodology that you have24
proffered in this case?25
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A Again the general methodologies that Im relying on, yes.1
I have gone through most if not all of the steps.2
Q Well let me make it more specific if I can. In connection3
with your consulting on the financial reporting of public4
companies, have you ever advised one of those companies that5
they should report a number where they reallocate their6
liability based upon some construct of liability?7
A I think in a broad sense yes. We do scenario analyses for8
our clients in this frame work. We dont give one number when9
were forecasting. You know, financial reporting frame work10
theres a range and one of the things we explicitly quantify in11
that range is in the sense of lower expenditure scenarios for12
the company or ones where there would be developments of more13
advantageous evidentiary rules for them.14
And potentially as, for example, as other bankruptcy15
proceedings have ended and more of the 524(g) trusts have come16
online and started paying money to claimants, we have17
explicitly run scenarios where weve quantified for clients18
what could be the potential impact of that on both their19
defense and indemnity payments as that evolves going out into20
the future.21
Q Have you advised a client to report in a publically filed22
financial statement that they should subtract from their total23
indemnity payments a sum based upon a reallocation of liability24
based upon several share?25
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A I said weve only done that in a partial sense which is if1
you were to take for example W.R. Grace, we have incorporated2
that in the future there will be a trust paying money. Thats3
not happening today, it wasnt happening in their history of4
two, three, four years ago. That will lower their costs5
potentially in the future and weve explicitly --6
Q Dr. Mullin, my question was about financial reporting.7
A Im answering that.8
Q Okay. By --9
A In that context we will quantify for them what is the10
effect of the return of payments from that defendant. Now it11
will be the trust as a successor to the defendant, but we12
explicitly accounted for how that would affect, or at least13
potentially under scenario analysis, affect their future14
payments.15
We havent done it holistically as though every16
defendant was back. So its only a partial return because the17
trust may or may not pay as much as the defendant was before.18
But weve done the same types of analyses.19
Q Now youve never testified in an estimation hearing in an20
asbestos bankruptcy case, is that correct?21
A Thats correct.22
Q Okay. And youve never been admitted as an expert have23
you, Dr. Mullin, in an asbestos estimation hearing?24
A No, this is the first time Ive been asked to testify in25
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that context.1
Q And I guess, Dr. Mullin, the theory that youre espousing2
here, is that a novel theory that has never before been3
testified to?4
A I dont view it as a novel theory, I view it as its been5
in the peer reviewed literature and law of economics since the6
1970's, that transaction costs affect settlement amounts. The7
joint transfer of liability, the fact that when Johns Manville8
went bankrupt that created orphaned liability shares for others9
is a well established both empirical and theoretical concept.10
So I dont view either of these concepts in any way as being,11
you know, novel.12
Q Let me try it again. Have you ever testified about13
subtracting a concept of implicit defense costs from a debtors14
asbestos liability before?15
A I have not testified on that specific topic before.16
Q Have you ever testified, Dr. Mullin, about subtracting17
from an asbestos defendants liability a component for18
reallocation of liability?19
A There are aspects of that that I think came up in my20
testimony in the plant insulation confirmation hearing.21
MR. SHEPPARD: Excuse me, Your Honor.22
Q Youre not offering an opinion in this case are you, Dr.23
Mullin, regarding what the present and future asbestos24
liabilities of Bondex, or the Reardon line as you call them,25
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would be had these bankruptcies not been filed, is that1
correct?2
A No, thats not correct.3
Q Thats not correct?4
A Thats the first step in my analysis and then I break that5
apart into its various components so thats really the first6
piece that comes out of the analysis I do is that7
quantification.8
Q Isnt it true, Dr. Mullin, that you testified in your9
deposition that you are quantifying what the debtors true10
liability would be under the Federal Rules of Evidence?11
A No.12
Q Its not?13
A I believe -- I believe what I testified was that I had a14
specific scope of charge but then I was providing building15
blocks for which one would be able to under alternative legal16
rulings determine what the liability is.17
Q So you didnt testify in your deposition that you are18
preparing this analysis under the Federal Rules of Evidence?19
MR. EVERT: Your Honor, I just object to the20
question. Thats not the way you impeach someone through the21
deposition.22
THE COURT: Thats sustained.23
MR. SHEPPARD: Thank you, Your Honor. Your Honor, if24
I could just have one second.25
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THE COURT: Yes.1
MR. SHEPPARD: Your Honor, may I approach?2
THE COURT: Yes.3
MR. SHEPPARD: Thank you.4
A Thank you.5
Q Dr. Mullin, let me ask you to turn to Page 32.6
THE COURT: Whats the date of the deposition please?7
MR. SHEPPARD: Im sorry, Your Honor. This is the8
deposition of Charles H. Mullin taken November 15th, 2012.9
THE COURT: Okay. Thank you.10
MR. SHEPPARD: And, Your Honor, I would have this11
marked for identification purposes as ACC demonstrative 1001.12
THE COURT: All right.13
Q So, Dr. Mullin, Im going to read from Line -- can you14
read from the question on Line 2 please?15
Q Okay. I think I understand your methodology and I16
appreciate that. And again what Im trying to understand is17
where or how you are defining liability and in what context.18
Are you defining liability in the context of had they stated in19
the tort system or in some other venue?20
A So the --21
Q And would you read the answer? Thank you.22
A Yeah. So the answer. Date is supposed to be data there23
but.24
A So the data Im relying upon, as I said, its based from25
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the tort system. So it is using a tort system definition of1
liability in the state tort system. Thats where the2
settlement data comes from. So those are what the numbers are3
predicated upon.4
I think you can conclude that that overstates what5
the liability would be if it was in a Federal Rules of Evidence6
system as opposed to the state system. But the data itself is7
based on the state system and it is the liability in the state8
court which as I said I think overstates what the liability9
would be if you move it to a federal system.10
Q Thank you, Dr. Mullin.11
MR. SHEPPARD: Your Honor, the Committee would renew12
its motion, its Daubert motion seeking to exclude the13
testimony of Dr. Charles Mullin on the grounds that he is not14
estimating the liabilities of this debtor as if they were in15
the tort system and under state law as required under the16
Bankruptcy Code and 524(g).17
MR. DORSEY: We would join that motion.18
THE COURT: Mr. Evert.19
MR. EVERT: Your Honor, we would oppose the motion of20
course based on all the arguments that we made previously. Dr.21
Mullin is clearly an expert, clearly has just indicated that22
his estimate is based on the state court, starts with the23
historical state court data, and we would for all the reasons24
we enunciated in our previous response to this motion would25
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oppose it.1
THE COURT: Just from the deposition statement that2
the witness just read the statements clear that he is3
estimating based on the liability thats in the state tort4
system. Im not sure what the next phrase that it may5
overstate the liability if he moved to a federal system means.6
But it seems to me that thats a question for examination that7
does not go to qualifications but may go to the content of his8
testimony so the objection is overruled.9
MR. SHEPPARD: Thank you, Your Honor.10
MR. EVERT: Thank you, Your Honor.11
DIRECT EXAMINATION12
BY MR. EVERT:13
Q Dr. Mullin, Im glad were here at this point because I14
think its a good segue. Mr. Sheppard asked you a number of15
questions going toward the issue of whether you believed your16
methodology was novel which is a term weve heard many times in17
this case. Would you explain to the Court what your18
methodology here in estimating the liabilities is and what you19
were asked to do?20
A I was asked by the debtors ultimately to provide an21
estimate of the several share of liability arising from the22
various products, in my reports I define that as the Reardon23
product line, but the asbestos-containing products that were24
produced over the years and what would be, you know, their25
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several share of liability in the state court system that arose1
from that. And I was asked to do that effectively separately2
for each of the debtors.3
And methodologically however ended up going about4
doing that, I mean I can get how I arrived at this methodology5
at some point, but ultimately I started with the state tort6
system settlement data and I took that, figured out from that7
what was really driving the underlying liability, looked at how8
that would have progressed in the tort system had they9
remained, to get a count of how many claims of different types,10
not just how many claims in total, but how many claims in11
different categories would the debtors have faced.12
And I ultimately put those into four categories which13
I viewed as, you know, high-value, mid-value, low-value, and14
claims that would be dismissed. And then for each of those15
types of claims I continued to analyze to figure out how much16
money was associated on average with each of those claim types.17
And thats the piece that then really differed18
between what was a settlement payment. The tort system would19
tell me okay, theres in the neighborhood of 50 high-value20
settlements a year and those claimants got close to half a21
million dollars a year in the tort system or half a million in22
payment so thats in the neighborhood of $25 million a year23
being paid to this group of 50 high-value claims.24
And then the question was for that how much of thats25
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liability, how much of that -- and when I say liability I mean1
what they would have ultimately been found liable for by a2
jury. So whats the expected outcome at trial. And thats3
really how the law and economics literature defines it. They4
take the expected -- the probability youll be found liable5
times the damages conditional on being liable since thats the6
expected loss.7
So its really trying to say how much of that was8
expected loss, how much of what was due to the debtors desire9
to avoid defense fees, how much of that was due to a transfer10
of liability. And when I talk about that several share, Im11
really talking about thinking of a world where Johns Manville,12
Celotex, Eagle Pitcher, you know, U.S.G., everybodys back in13
the court system. So all of those codefendants are present and14
youre back in that frame work where all those codefendants are15
paying 100 percent of their share. How much would Bondex be16
paying or how much would the debtors be paying?17
And that was the ultimate opinion that I was asked to18
get to was for each of SPHC and Bondex what was that several19
share under that theoretical world in which all of those20
defendants are back in the tort system with them.21
MR. SHEPPARD: Your Honor, we would --22
A To get there I did it in steps.23
Q But you started --24
MR. SHEPPARD: Your Honor, we would renew our motion.25
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We would renew the Daubert motion based upon the answer of the1
witness.2
THE COURT: Why?3
MR. SHEPPARD: Because he just said that hes4
estimating them in a theoretical world and not as if they were5
in the tort system.6
THE COURT: He said he was estimating them as though7
all of the debtors essentially were back in the tort system.8
Again, I mean I think this goes to the weight to be attributed9
to his evidence but I dont --10
MR. SHEPPARD: Thank you, Your Honor.11
MR. EVERT: Thank you, Your Honor.12
Q All right, Dr. Mullin, you covered a lot of ground there.13
Let me go back to the beginning of the answer. I think you14
said you started with the historical claims data, is that15
right?16
A Correct.17
Q When you say you started with the data, tell me about18
that. What did you do?19
A I really did the same first step I do on any project that20
comes into me for an asbestos-related matter. I want to21
understand the products that the defendant had and I want to22
map that to the tort history experience and understand whats23
driving that tort history experience.24
I have a strong belief that you have to understand25
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why the tort outcomes that are being observed are happening.1
You cant just take them as a black box and blindly extrapolate2
them forward.3
You need to have that understanding of what are the4
merits, whats driving different types of claims to be able to5
give a reliable forecast going forward so thats the first6
thing I always do is ground myself in that tort experience and7
really the use of the defendants products.8
Q So you were presented with a database that had information9
in it, settlement information and dismissal information about10
the historical claims, is that right?11
A Correct.12
Q And then how did you take that information and do what you13
just described you wanted to do?14
A The very first thing I did with it was just I did some15
simple tabulations, just looking at how many claims were they16
getting by year, how much money were they spending by year,17
just getting a high-level overview of what was the experience.18
Ultimately I requested from the debtors a sample of19
underlying claim files, so the underlying files that actually20
led to the values that are in the database, to be able to get a21
richer picture of what was the history.22
Q And tell me about that sample. So when you say you asked23
for a sample of the underlying claims, what does that mean?24
A I asked for approximately 1,000 claim files so I25
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constructed a statistically representative out of random1
sample. Its not a simple random sample. I was more concerned2
about the claims that were paid money than the ones that3
werent paid, so it over sampled paid claims relative to4
dismissed claims. But it was a statistically representative5
sample of about 1,000 claims and I asked for really the6
underlying files from the debtors on those claims.7
Q And then ultimately as a part of the process with the8
experts on the other side did you look at additional claim9
files?10
A Ultimately the FCR and ACC collectively sampled11
approximately 450 claim files. It as well over sampled the12
high-value claims so there was an overlap of I think more than13
100 of the files between the original sample that I requested14
and the sample that was requested by the FCR and the ACC. So15
in total there was around 1250 claim files.16
Q And those claim files gave you deeper information in terms17
of the individual claims whereas from the database you had18
pretty much settlement amounts, is that?19
A The database is fairly high-level information. The20
underlying claim files let you construct an exposure profile21
for example so you can look at a settlement and see did a22
claimant, you know, were they an electrician, were they a pipe23
fitter, did -- were they in the Navy. You can really lay out24
whats their history of different sources of exposure, you can25
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figure out which particular products for the debtors they were1
asserting exposure to. It just gave you a lot richer2
information about the claimants and what drove the liability.3
Q Did you -- were verdicts or cases that were tried to4
verdict, were they included in those claim files?5
A They were. I asked for all the verdicts.6
Q So it was not a sample.7
A It wasnt a sample or, technically its a sample but, yes,8
its -- we sampled the whole population.9
Q Its a sample of 100 percent. Yeah. Okay.10
A Correct. We asked for all the verdicts. Im trying to11
remember if we got them all or if one of them couldnt -- I12
think we got them all. I dont remember with certainty whether13
it was all or we were missing one.14
Q Okay. How about defense fee information? Did you request15
information in that regard?16
A I did. Theres only for a fairly recent time period was17
there claim level specific defense information available, or at18
least that I received, that allowed you to go claim by claim19
and see how much was being spent and then its more aggregate20
kind of annual expenditures by fiscal year is what I attained21
for earlier years.22
MR. EVERT: Your Honor, at this time just for an23
administrative matter Id like to offer for admission Debtors24
Exhibit 1 which is the historical claims database which I think25
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is to be admitted without objection.1
MR. DORSEY: It is, Your Honor.2
UNIDENTIFIED SPEAKER: No objection, Your Honor.3
THE COURT: All right. Debtors Exhibit 1 is4
admitted.5
Q Now, Dr. Mullin, when you looked at the historical claims6
database and you started to compile information about the cases7
that were within that database, what were you looking for8
initially?9
A Initially Im looking for really whats driving the10
liability, has the liability been stable, is it not, you know,11
the payments, how is this particular -- how are these two12
debtors behaving in the tort system, and trying to learn at the13
same time how that maps to how strategically are the claims14
being defended to see if thats varying by jurisdiction or in15
some way that would explain differences that are observed in16
that data.17
MR. EVERT: Your Honor, if I may approach with18
debtors demonstrative. I should have warned the Court that I19
cannot count so apparently I --20
THE COURT: Up to 11 I believe.21
MR. EVERT: Yes, Your Honor.22
Q Now, Dr. Mullin, at the debtors request were you only23
interested in mesothelioma payments or mesothelioma claims?24
A Not initially. I mean initially I was looking at the25
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totality of their experience, but I forget the exact date but1
at a certain point the parties reached a stipulation with2
regard to the non-mesothelioma claims and so the only -- my3
scope of inquiry got constrained at that point to just looking4
at mesothelioma claims.5
Q Now for demonstrative purposes Ive handed you Debtors6
Demonstrative D-11 and I have it up on the ELMO for those who7
dont have a copy. Tell me what this illustrates.8
A This is so the vertical bars in the graph are showing for9
each year what was the aggregate amount of settlement10
commitments that were made in that given year. So its not --11
its when settlement agreements were struck is how everythings12
been dated.13
Q And why would you use commitments instead of paid dollars?14
A Well for one reason I wanted to include the what goes by15
SBND claims or settled but not documented claims. Those are16
settlement commitments that had been made within the tort17
context but the money hadnt actually been paid yet. But its18
a relevant part of the history.19
The history is really when -- when are the -- how20
much are they agreeing to pay and when as opposed to the cash21
flow issues, and when I was here earlier and Mr. Tompkins was22
talking about how they made structured payments through time,23
its not even clear how you map those to individual claimants.24
So when you settle a group of claims for $22 million and you25
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agree to write three checks in the future, which checks went to1
which claimant, doesnt have a clean dating. When the2
settlement for those claimants was struck does. So its one3
dating convention that I can use consistently across all of the4
claims.5
Q Okay. So as I understand it this particular graph it is6
the bars represent dollars?7
A Correct. The bars represent dollars. The left-hand8
access is telling you how many dollars it represents.9
Q And I see that the years are in fiscal year.10
A Correct.11
Q You heard Mr. Tompkins testify I think about RPMs fiscal12
year ending on May 31. Is that the fiscal year that were13
talking about here?14
A Correct. This is a June 1 to May 31st fiscal year.15
Q And why would you use fiscal year?16
A I was motivated for two reasons. One was convenience.17
The debtors petition date aligns with the fiscal year. So if18
you use fiscal years you have complete years in every year.19
You dont have to deal with a partial year and any adjustments20
one may need to make for only observing part of a year. It21
allows you to do everything in full year increments.22
Two, in my experience most defendants try to manage23
their litigation on a fiscal year basis. So they to the degree24
they have cash flow concerns, to the degree they try to manage25
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or hit certain targets or do different things, theyre doing1
that on a fiscal year basis, not on -- many the fiscal and2
calendar year are the same thing, but thats -- when those3
differ most defendants data looks more stable and its more4
reliable if you look at it through that lens.5
Q So if we look at this graph it appears to me that there --6
you have three different colors here for the dollars, the green7
and the, I dont know, is that orange, and the blue. Can you8
tell me --9
A Correct.10
Q -- what those represent?11
A Conceptually the green is really before, I mean the green12
is very hard to see, its for the 1995 through 1999. Thats13
before there was really a runup in either claim count or14
dollars. So this is when they had a very small footprint in15
the underlying asbestos litigation and the orange is really the16
transition period.17
From 2000 to 2002 is the beginning of ramping up18
where they saw a large increase in the number of claims and at19
the same time a correspondingly large increase in settlement20
payments.21
By 2003 theyd really transitioned to that new level.22
So theyve gone from paying, you know, call it a million a year23
in the 1990's to paying about 50 million a year. So theres a24
very large increase but where you see 50 million a year, you25
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see 50 million a year in 2003, 2004, you also see a number1
close to that in 2010. And since 2003 its been relatively2
stable and theres clearly year-to-year movements, but relative3
to the increase that we observe previously things that -- the4
world stabilized for these defendants.5
Q Now I see a small number in 2006 and higher numbers in 086
and 09. Does that affect your view of the stability?7
A It was something I looked into explicitly. So in 20068
there was about half the number of settlements that you would9
observe in a normal year, you know, there is instead of10
settling in the sense of -- when I say settlement I mean paying11
as opposed to resolving which would include dismissals -- there12
was about half as many settlements as youd normally observe,13
it was around 250 instead of 500. That resulted in much lower14
payments that year.15
You see a correspondingly higher number of16
settlements and higher amount of payment in both 2008 and 2009.17
If you actually track the claims through, the claims paid in18
08 and 09 are a little bit -- have been in the tort system19
longer, theyre more aged. The data is very consistent in20
terms of all the underlying characteristics with for some21
reason it appears that the debtors deferred some of their22
settlements a bit and the numbers line up almost exactly. 200623
is about $20 million below 50 million and 2008 and 2009 are24
each 10 million above.25
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So theres the one year thats 20 million below,1
theres two years that are 10 million above. They appear to2
really be offsetting effects in terms of the timing of payments3
and it averages about 50 million a year.4
Q And in your efforts to begin your estimation of the5
debtors mesothelioma liabilities, what is the importance of6
this stability from 2003?7
A Well this -- the most important thing I took from this is8
that I really should be focusing on the 2003 to 2010 time9
period. I mean going back further than 2003 Im going back10
into a different world for the debtors. You know 2003 to 201011
is the world in which theyve been living and appears to be12
relatively stable. So I was going to focus my attention on13
those eight years as opposed to trying to reach further back.14
It kind of framed for me what was the appropriate time period15
to explore.16
MR. EVERT: Your Honor, may I approach? Thank you.17
THE COURT: Thank you.18
Q Dr. Mullin, Ive handed you Defendants -- Debtors -- Im19
going to say that a lot, Ill just tell you right now --20
Debtors D-12 demonstrative, for demonstrative purposes. And21
if you would tell me what the blue bars on that graph22
represent.23
A Theyre really the exact same blue bars that were on the24
previous demonstrative, its just now only focusing on those25
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last eight years of fiscal year 2003 through 2010.1
Q So this is the 03 to 10 fiscal year dollars committed by2
the debtors in mesothelioma settlements, is that right?3
A Correct.4
Q And again we are talking about fiscal years as we were in5
the last graph, is that correct?6
A Thats correct.7
Q Now the title of this demonstrative or the legend is8
stable history combined with Nicholson extrapolation suggests9
between 600 million and 800 million nominal in future tort10
settlements. Tell me what that means.11
A So we heard a bit earlier today somewhat about the12
Nicholson curve and forecast. I mean Nicholson and co-authors13
wrote a paper back in 1982 which laid out a forecast of future14
asbestos disease -- mesothelioma disease incidents. It did15
things beyond that but of interest to us is the mesothelioma16
ones.17
I have -- that model if I remember correctly right18
now actually ends in 2029, but it doesnt go all the way out to19
2050, 2060's. I have extended that out based on the work done20
really in the KPMG version of that model. So the 2009 forward21
portion of that is technically an extension of whats seen22
within Nicholsons paper.23
But so Nicholson has a shape of a curve for how many24
future diagnoses or, you know, incidents of mesothelioma will25
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occur. And what the exercise that I did is I said if I assume1
everything is going to be held constant, so for every claim,2
for every individual, there is going to be an equal likelihood3
in the future that that individual thats diagnosed with4
mesothelioma will file a lawsuit against the debtors, the5
probability they get paid will stay the same, the probability6
theyll, you know, everythings static and we just kind of7
extend that whole thing out.8
If I extend that all out and do it very simple just9
off of payment level. So Im looking -- and if I calibrate10
that and say the whole eight-year period is the period I want11
to calibrate that to and I just fit the curve and do the best12
statistical fit to those eight years, it tells me theres going13
to be about $600 million of future tort payments, you know,14
thats the blue line.15
If I take that off the highest points observed in the16
history and calibrate it off the two highest years observed, so17
2008 and 2009, it tells me that if I brought it off the two18
high points and just extrapolate out, you know, Im going to19
get 800 million of future tort payments. You know these are20
nominal, Im not touching, you know, time value of money type21
issues.22
But that says if you want to look at tort settlements23
youd expect something in that range. You know its running24
off kind of the eight years or since youve seen the level25
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shift and then the two highest years observed.1
Q So theres a lot of information there that I want to try2
to break down. First of all, help me understand. The3
Nicholson study as I understand it projects incidents in terms4
of people yet its on -- the axes on this graph is dollars. So5
tell me how that -- does it have to do with the slope of the6
curve or how does that work?7
A Correct. Im forecasting out the dollars proportional to8
the number of people. So where if you look at the blue line9
and in the two thousand -- 2003 to 2005 period right about $5010
million. What the Nicholson curve is telling me is for every11
50 people that used to get diagnosed with mesothelioma back in12
2003 and 04, if I go forward to say a year like 2025 where13
this curve is at about 20 million, it says theres going to be14
about 20 million -- there are going to be about 20 people.15
So its just scaling things proportional to the16
number of people that will get mesothelioma. So going from 5017
to 20 on this graph is going from for every 50 people that used18
to get mesothelioma Nicholson predicts by that year there will19
only be 20.20
Q So if we superimposed on top of this graph the Nicholson21
incidents curve where the left axis is people, is incidents of22
disease, it would look that exact same slope.23
A Right. It has the exact same shape.24
Q All right. And the blue line you say is taking the -- Im25
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sorry, let me withdraw that. Would you call this a simple1
extrapolation?2
A I wouldnt call this a forecast I mean because youre not3
really looking at whats going on in the underlying data,4
youre just taking an observed eight years of expenditure and5
youre saying Im not trying to understand yet why that6
happened, but if I assume that thats stable and was going to7
get repeated what would I see in the future. I havent done8
the work yet to see if thats stable would it get repeated, but9
if you thought that it was relatively stable and the10
expenditure levels itself is relatively stable, what would you11
expect to see.12
Q So the blue line is taking the lower level of the recent13
tort system settlements and just extrapolating it out along the14
Nicholson curve, is that right?15
A Its really not the lower level, its taking the last16
eight years. So I didnt -- if you notice if you -- its17
actually above every year except the two and its substantially18
above 2006. So actually the amount of the blue bars above the19
line and below perfectly cancel out, in effect. So its20
fitting to that eight-year period.21
Q So in a stable world you would expect a forecast to22
ultimately once the appropriate work is done of nominal tort23
system payments to fall into this realm?24
A So if I had a stable world with a stable inventory every25
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aspect of it was stable, I would expect the tort payments in1
the future, if you were doing this in example of a financial2
reporting context, you would say their tort system payments3
over the next 50 years will probably sum up to most likely 6004
million and Id be really surprised if I got a number higher5
than 800 million given that thats coming off the two highest6
observed years.7
Q And again I think you mentioned this and I think this is8
going to be a constant problem throughout, these are nominal9
numbers and not discounted for present value or the like,10
correct?11
A Correct.12
Q Okay. So once you performed this simple extrapolation and13
you looked at this Ill call it back of the envelope which will14
probably offend you for which I apologize, whats the next15
step?16
A Well the next step, those tell you it should be around 60017
million and not less than 800 million nominal, if the world is18
actually stable. So now the question is lets go look and see19
is -- has that eight years, even though superficially if you20
look at total expenditure its been relatively stable, that21
doesnt necessarily mean that the underlying dynamics are22
stable.23
So I then my next step was to dig down and look at24
the underlying dynamics to see whether or not there was actual25
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stability in the underlying dynamics that lead to the observed1
expenditures or settlement commitments.2
MR. EVERT: Your Honor, may I approach?3
THE COURT: Thank you.4
Q Now, Dr. Mullin, I have handed you the Debtors5
Demonstrative D-13 which I know everyone is shocked, it6
discusses an unstable trend which is what you were just talking7
about. So will you tell the Court what this illustrates?8
A This is looking at the propensity to sue the debtors and9
its looking -- so the denominator here is the Nicholson, its10
really the Nicholson forecast of the number of individuals that11
get mesothelioma in a given year, the numerator is the number12
of individuals that named the debtors that year and this is13
filings over incidents.14
And its by calendar year because thats the nature15
in which the Nicholson forecast comes. The Nicholson forecast16
is coming by calendar year and then I did annualize whats17
really been observed in I think 2010.18
But when you look at this graph you see that what you19
may first actually think is a stable trend. You get a nice --20
a linear line fits it actually quite well. So it says that,21
you know, the propensity to sue the debtors has been growing22
and growing at a consistent rate.23
Why I have labeled it as unstable is its clearly not24
sustainable. The propensity to name the debtors or sue the25
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debtors cant continue to grow forever. And what the line is1
intended to illustrate is if you did just blindly extrapolate2
this trend youd get a nonsensical answer. Youre going to3
move to more than 100 percent of the people diagnosed with4
mesothelioma are suing the debtors which doesnt make sense.5
So although there is a trend in the data it cant6
possibly be stable. If it were stable it would mean it would7
continue forever and we know that cant happen. So were going8
to need to understand that better about how -- whats going on9
there and how it affects total payments.10
The other thing that this points out is although the11
number of claims, the propensity to sue the debtor has been12
growing, you see it going from about 25 percent in 2003 to a13
number thats probably a little north of 40 percent or in the14
neighborhood of 40 percent by 2010, we observed that their15
actual settlement commitments werent growing.16
So theres going to be -- theres a little bit of a17
conundrum there in a sense. Youve got to reconcile these two18
things. Theres been relatively stable settlements but an19
increasing number of claimants are naming the debtors. So20
clearly these increasing numbers, theres something thats21
offsetting or youd expect to see the actual tort settlements22
to be rising as the number of claimants rises.23
Q So if I could return to the Debtors Demonstrative Number24
3, Im sorry, Number 11, these are the tort commitments that25
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you were referencing a moment ago?1
A Yes.2
Q And I just want to make sure I follow this point. You3
were surprised to find that with a stable spin year in and year4
out there was an increasing propensity to sue trend? Is that5
what you said?6
A Well not necessarily surprised, but saying this is7
something thats going to need further explanation because if8
the propensity to sue goes from 25 percent to 40 percent9
between 2003 and 2010, wed expect 50 million of expenditure in10
2003 to be 80 million of expenditure in 2010 if these moved11
together.12
So thats -- but we dont see it rising up, we dont13
get that same linear upward trend in total settlement14
commitments so theres got to be more to the story than just15
that as you add more claims, if you double the number of claims16
you double the amount of money. The story cant be that17
simple. These two things contradict that.18
Q In returning to Debtors 13, which is the increase in the19
propensity to sue, it cant continue I think you said in this20
vein forever.21
A No. If we continued this way forever by 2035 we have more22
than 100 percent of the incidents of mesothelioma naming the23
debtors. We dont have 100 percent of the incidents of24
mesothelioma even filing a lawsuit today.25
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MR. EVERT: If I may approach, Your Honor?1
A Thank you.2
THE COURT: Thank you.3
Q Do you have plenty of water? Are you okay?4
A Yes, Im fine.5
Q Dr. Mullin, Ive handed you what is Debtors 14, D-14 for6
demonstrative purposes, and if you would tell us what that7
represents.8
A So this is a very similar graph to the previous one, were9
still looking at things in calendar years just to make it10
directly comparable to the last graph and so as opposed to11
looking at the propensity to sue this is looking at the average12
settlement amount.13
So its saying for the claims that were filed in 200314
the average settlement amount was approximately $150,000. For15
the claims as we move forward to the claims filed by 2010 the16
average settlement amount was about $75,000. So weve seen the17
average settlement amount decline as the propensity to sue has18
risen.19
So this may provide us an explanation, we need to do20
more work still at this point, but if youre wondering why is21
it that as the propensity to sue increases we dont see the22
doubling, with the doubling of the propensity to sue in23
settlement payments. At the same time weve been observing an24
offsetting downward trend in the average settlement amount so25
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the value of claims in that sense on average is getting lower.1
Q And I presume you are not forecasting based on this graph2
that at some point the claimants owed the debtors money.3
A No. This is similar to the other graph. The trend,4
although a linear line fits it well for the last eight years,5
if you were to continue that linear trend just as its6
nonsensical to say more than 100 percent of the people are7
going to sue the debtors, I think its equally nonsensical to8
say by 2015 the claimants are going to be paying the debtors.9
Neither of those outcomes makes sense.10
So you know that although theres been a stable trend11
line over the last eight years, you can just on its face12
extrapolating that trend line is wrong.13
Q Now did you find an empirical relationship between the14
last two trends that you showed us the increasing propensity to15
sue and the decreasing settlement amounts?16
A This is a common outcome. In general for the debtors and17
specifically that statistical connection is very, very small.18
Theres a correlation coefficient of about .9 and .9 is -- you19
almost never see anything that high so that --20
Q Tell me what that means. Correlation efficient --21
coefficient .9. Tell me what that means in less than an hour22
and a half.23
A Ill try two short answers and see if these work in24
combination. The first is more statistical which says if you25
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