Document Z48aQ6Vr3mrjQdJ9EjVa1oobd

VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX IN RE: VOLKSWAGEN "CLEAN DIESEL" LITIGATION Page 1 CARLOS CASTELLUCCI, Coordinated Case No.: CL-2016-9917 Plaintiff, vs. Case No.: CL-2017-288 VOLKSWAGEN GROUP OF AMERICA, INC., Defendant. VIDEOTAPED DEPOSITION OF JACOB MCDONALD, August 16, 2017 9:26 a.m. 2425 Ridgecrest Drive, Southeast Albuquerque, New Mexico M.D. PURSUANT TO THE VIRGINIA RULES OF CIVIL PROCEDURE, this deposition was: TAKEN BY: MR. MICHAEL J. MELKERSEN Attorney For Plaintiffs REPORTED BY: Peggy Jo Gonzales, RMR, CCR #145 Bean & Associates, Inc. Professional Court Reporting Service 201 Third Street, Northwest, Suite 1630 Albuquerque, New Mexico 87102 (8637L-PJ) Magna Legal Services Page 2 1 APPEARANCES 2 For the Plaintiffs: 3 MR. MICHAEL J. MELKERSEN THE LAW OFFICES OF MICHAEL J. MELKERSEN 4 9633 S. Congress Street New Market, Virginia 22844 5 mike@mlawpc.com 540.740.3937 6 7 For the Texas Plaintiffs: 8 MR. CRAIG M. PATRICK PATRICK LAW FIRM 9 6244 E. Lovers Lane Dallas, Texas 75214 10 craig@patricklaw.com 214.390.3343 11 12 For the Defendant: 13 MR. MICHAEL H. STEINBERG SULLIVAN & CROMWELL, LLP 14 1888 Century Park East Los Angeles, CA 90067-1725 15 steinbergm@sullcrom.com 310.712.6670 16 MR. ROBERT W. LOFTIN McGUIREWOODS, LLP 17 Gateway Plaza 800 East Canal Street 18 Richmond, VA 23219-3916 rloftin@mcguirewoods.com 1.804.775.4715 19 20 Also Present: 21 Mr. Sam Moir, Videographer 22 I N D E X 23 PAGE 24 EXAMINATION OF JACOB McDONALD, M.D. 25 By Mr. Melkersen 5 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 Page 3 1 By Mr. Steinberg 118 1 2 By Mr. Melkersen 169 2 3 By Mr. Steinberg 177 3 4 CERTIFICATE OF COMPLETION OF DEPOSITION 180 4 5 WITNESS SIGNATURE/CORRECTION PAGE 182 5 6 EXHIBITS MARKED OR FORMALLY IDENTIFIED 6 7 1 Notice of Deposition 11 7 8 2 Journal of Heart Association article 28 8 9 "Acute Exposure to Diesel Exhaust Impairs 9 10 Nitric Oxide--Mediated Endothelial 10 11 Vasomotor Function..." 11 12 3 Particle and Fibre Toxicology article "A 34 12 13 randomized cross-over study of inhalation 13 14 of diesel exhaust..." 14 15 4 Particle and Fibre Toxicology article 39 15 16 "Effects of diesel exposure on lung 16 17 function and inflammation biomarkers from 17 18 airway..." 18 19 5 Agreement between EUGT & LRRI 49 19 20 6 Email thread 40 20 21 7 Email thread 51 21 22 8 Email thread 59 22 23 9 Email thread 64 23 24 10 Progress Report(s) 66 24 25 25 Page 4 11 8/2/16 email to McDonald from Spallek 83 w/attached comments 12 Vehicle Test Results 92 13 Email thread 94 14 Photograph 95 15 Photograph 96 16 Photograph 96 17 Photograph 96 18 Photograph 97 19 Photograph 97 20 Photograph 97 21 Photograph 98 22 Photograph 98 23 Email thread 99 24 Email thread 108 25 11/25/15 email to McDonald from Brower 111 26 8/17/16 email exchange between McDonald 112 and Maestas 27 Email(s) forwarding/attaching Final 114 Reports 28 American Journal of Respiratory and 164 Critical Care Medicine article "Acute Inflammatory Responses in the Airways..." Page 5 ja c o b McDo n a l d , m .d ., after having been first duly sworn under oath, was questioned and testified as follows: EXAMINATION BY MR. MELKERSEN: Q. Dr. McDonald, good morning. A. Morning. Q. As you just heard, my name is Mike Melkersen. MR. STEINBERG: Mike, can you keep your voice up, I can barely hear you. Mr . MELKERSEN: Sure, sure. Q. (By Mr. Melkersen) My name is Mike Melkersen, I represent some plaintiffs in a case that's pending in Virginia against Volkswagen relating to, what you may have heard, it's been commonly referred to as the diesel scandal. Thank you for being here today and accommodating us here at your facility. For the record, could you state your complete legal name. A. Jacob Daniel McDonald. Q. And what is your current position? A. Vice president of applied sciences, chief science officer for Lovelace Biomedical. MAGNA Legal Services Page 6 Page 8 1 Q. What is Lovelace Biomedical? 1 A lot of that is -- is linked to hazard 2 A. Lovelace Biomedical is a contract research 2 assessment and evaluation. We do a lot of work 3 organization. It's a subsidiary of Lovelace 3 that's also drug development. If there's a new drug 4 Respiratory Research Institute, our parent company. 4 that you want to look at, we'll evaluate a drug's 5 Lovelace Biomedical and Environmental Research 5 performance. Typically we'll do that in animals, as 6 Institute, also does contract research for both the 6 well as humans. In -- in the context of risk 7 government, as well as private entities in the 7 assessment and hazard evaluation, we've done work for 8 biomedical research arena. 8 many years to assess potential hazard assessment and 9 Q. Is that something different than your 9 risk of pollutants, agrochemicals, environmental 10 parent company does or -- 10 pollutants, et cetera. 11 A. No, LRRI, the parent company, has a number 11 In 1978 Lovelace, at that point, was called 12 of subsidiary units. Lovelace Biomedical is the 12 the Inhalation Toxicology Research Institute, started 13 primary, the largest unit within LRRI, and does the 13 conducting work on diesel exhaust and understanding 14 majority of the work. However, there's several other 14 the potential hazard and/or risk associated with 15 companies under the LRRI umbrella. 15 inhalation of diesel exhaust in the context of that 16 Q. I see. And when you say LRRI, you're 16 technology at the time in the late '70s and early 17 referring to Lovelace Respiratory -- 17 '80s, as well as in the context of other 18 A. Respiratory Research Institute. 18 environmental pollutants. So we -- we do a lot of -- 19 Q. -- Research Institute? 19 we've done a lot of work over the past 30-plus years 20 A. Correct. 20 understanding potential toxicity, primarily utilizing 21 Q. All right. How long have you had -- how 21 animals as test subjects, to understand that to try 22 long have you held your current position? 22 and represent humans to -- to try and understand 23 A. My current position has been since, I 23 environmental pollutants and to try and relate that 24 think -- I believe, 2014, so about three years. 24 to the potential risk and the environment. 25 Q. Okay, and prior to that, what was your 25 Q. Sounds like very important work that can Page 7 Page 9 1 position? 1 have wide-ranging effects depending on the outcomes 2 A. Well, I've been a scientist here at varying 2 of your-all studies, true? 3 levels since 2000, and so I've been here for coming 3 A. Well, what we'd like to think is the work 4 up on 18 years, and the -- my role has been in either 4 that we've done in the context of environmental 5 scientific conduct of research and/or scientific 5 pollution has helped to impact regulation and -- and 6 management at different levels. I'd have to look at 6 engineering controls, and so primarily the hazard 7 my CV to go through all the -- 7 assessment and risk evaluation work is helping to 8 Q. Sure. 8 help, hopefully, inform understanding, as well as 9 A. -- different titles. 9 regulation. 10 Q. No, I understand. So your educational 10 Q. I noticed when I came in this morning 11 background, what -- do you have your Ph.D.? 11 that -- maybe it was just the way I came in, but I 12 A. Yeah, I have a Ph.D. in chemistry and 12 didn't see any signs on the outside of the building, 13 toxicology. 13 and I noticed there was some security gates where you 14 Q. I see. And so just to give me an idea of 14 had to buzz to get in, and some cameras on the 15 what Lovelace does, I know you explained it a little 15 outside of building, and security down front and you 16 bit just a moment ago, but can you give me an example 16 had to show ID and this type of thing. Why is this 17 of, like, types of projects -- not identifying any 17 important for this to be a security facility? 18 specific client or anything like that, but an example 18 A. We're located in the worst part of town. 19 of the type of thing that you-all do. 19 Q. Oh, okay. All right. Good -- good enough. 20 A. In the context of the discussion that we 20 Good enough, that's -- that's a reason. 21 have today, I mean, generally, Lovelace is -- at 21 Have you ever had your deposition taken 22 one -- at one point -- we've been around -- the group 22 before? 23 that I represent has been around about 65 years, give 23 A. Yes. 24 or take, doing contract work for the government or 24 Q. How many times? 25 the private industry, primarily toxicology. 25 A. I don't know, a couple. Magna Legal Services Page 10 Page 12 1 Q. Okay. Have you ever had your deposition 1 programs that I've been involved with over the years 2 taken before relating to the Volkswagen diesel 2 and some appointments that I've had with -- you know, 3 emissions issues? 3 with -- with academies and committees and things like 4 A. No, sir. 4 that, and through conferences. I know a lot of 5 Q. So you understand that, you know, if you 5 people. 6 don't understand any of my questions just, you know, 6 I had met, I think, Michael Spallek and a 7 ask me to rephrase it and I will. 7 couple of other folks with EUGT at a Health Effects 8 A. Sure. 8 Institute meeting I think it was like three or 9 Q. You know, I'm not here to try to mislead 9 four -- three -- I would say three or four years ago. 10 you or trick you in any way. 10 I was there presenting information on a previous 11 If we need to take a break, let me know and 11 program that I was conducting that was related to the 12 we'll do that. 12 health effects associated with new technology diesel 13 A. Okay. 13 exhaust, a program that was funded through a joint 14 Q. One of the things that I did before we came 14 consortium of the Health Effects Institute that -- 15 here today was I issued a notice of deposition that 15 that pulled in funding from the federal government as 16 had various topics in it that I wanted to ask you 16 well as private industry, and I was -- I was the 17 about. 17 leader of that program and presented work on that 18 A. Okay. 18 program, and I think that they spoke with me at that 19 Q. Have you seen that? 19 meeting and wanted to do some -- some similar work 20 A. I may have browsed it -- 20 that -- that was, I guess I would say, following on 21 Q. All right. Let me -- let me show it to you 21 to some of the studies that I had done previously in 22 again. 22 rodents to try and understand more the potential 23 A. -- but it's been a while. 23 health benefit, honestly, of new technology diesel 24 Q. I'm going to mark this as Exhibit 1. 24 exhaust compared -- benchmarked against older 25 25 technology diesel exhaust. So I'd met them at a Page 11 Page 13 1 (Exhibit 1 marked.) 1 meeting, we had talked about it and conceived the 2 Q. (By Mr. Melkersen) Take a look at that and 2 work. 3 see if that refreshes your recollection. 3 Originally we were planning on -- on doing 4 A. Sure. 4 the work in humans because in Europe there had been a 5 Q. And you're prepared today to answer 5 fair amount of studies with -- with people, but 6 questions on the subject matters that I set forth in 6 because of -- frankly, because of one reason or 7 this notice? 7 another, we ended up -- they ended up deciding to do 8 A. I'm prepared to give you information to the 8 it in primates instead of humans to do the study, 9 best of my recollection at this point. I reviewed 9 so... 10 some of the information more recently. Some of the 10 Q. When you said you've met with them, who is 11 stuff happened a couple of years ago, but I've been 11 "them" that you're referring to at Health Effects 12 tidying up some of the loose ends related to the 12 Institute? 13 study, so I've reviewed some of it recently and am 13 A. You know, this is a few years ago. Michael 14 prepared to answer it to the best of my ability. 14 Spallek was there. I -- and a couple of other guys 15 Q. And you're here as a representative, also, 15 with German accents. I can't -- I can't tell you. I 16 of LRRI; is that correct? 16 could -- I could guess at who was at that meeting, 17 A. That's correct. 17 but I can't remember exactly. I remember Michael was 18 Q. So tell me, if you could, how it is that 18 for sure. I'd have to look back at that. 19 you first became involved with this organization 19 Q. Do you remember how Mr. Spallek introduced 20 known as EUGT. 20 himself and who he was with? 21 A. So it's a relatively small community of 21 A. I -- I don't remember exactly. I mean, if 22 people that are involved in health research, as well 22 what you're getting at is his affiliation with 23 as the engineering leads in the automobile trade 23 Volkswagen, he didn't make any sort of pretenses that 24 associations, et cetera. I -- I have been involved 24 he didn't have some sort of affiliation with 25 at a relatively visible level because of some 25 Volkswagen and was -- and, also, that he was trying Magna Legal Services 4 (Pages 10 to 13) Page 14 Page 16 1 to pull together this -- what they viewed as sort of 1 ultimately did as to attempting to refute or 2 a -- what he described as a sort of a trade 2 otherwise contradict a study that was put out by the 3 association, an EUGT, and my impression was that -- 3 World Health Organization that upgraded diesel 4 that Volkswagen was playing a leadership role in 4 exhaust as a human carcinogen in June of 2012? 5 trying to assemble this EUGT as -- as a trade 5 MR. STEINBERG: Objection, misstates the 6 association that was -- I think, you know, what they 6 press release from WHO; lack of foundation. 7 were trying to model at it, from my impression, was 7 A. That would never have been the intent 8 similar to this -- this organization that I described 8 because this study was not focused on cancer risk. 9 earlier, the Health Effects Institute, which is, 9 So it wouldn't have been linked to that WHO press 10 basically, a private/public kind of partnership that 10 release. The WHO press release was mostly linked to 11 brings stakeholders together to try and, you know, 11 the IARC committee findings that -- that -- that had 12 serve to create, ideally, independent information 12 happened from the committee meetings in the -- the 13 that helps inform the community. And that -- that 13 study that was conducted by IARC, I think, the 14 was my impression. 14 previous year, and I had served on that committee. 15 Q. And so the EUGT, was it your understanding 15 Q. What is IARC? 16 that that was, in part, founded by Volkswagen? 16 A. IARC is the International Agency for 17 MR. STEINBERG: Objection, calls for 17 Research On Cancer. It's, basically, the -- the 18 speculation, lack of foundation. 18 organization that determines through -- or at least 19 Q. You can answer, go ahead. 19 defines carcinogenic classifications, and the WHO 20 MR. STEINBERG: You can answer, yeah. 20 article is probably, basically, just citing the study 21 A. I'm sorry, can you repeat the question. 21 from IARC. 22 Q. My question is, was it your understanding 22 Q. I see. And you were on that committee? 23 that EUGT was co-founded by Volkswagen? 23 A. Yes. 24 MR. STEINBERG: Same objections. 24 Q. And what was it that you-all studied or 25 A. You know, I didn't really think about the 25 found as a result of your work with IARC? Page 15 Page 17 1 founding because I didn't honestly -- I hadn't heard 1 MR. STEINBERG: Objection, vague. 2 of them up until that time, so I didn't know how long 2 A. IRAC. 3 they had existed or whatever. The only thing I knew, 3 Q. IARC. IARC, sorry. 4 based on my conversation with Michael, was that 4 A. Well, just to be clear, we don't study, per 5 Volkswagen was an important part of EUGT. 5 se. What IARC does is bring expertise in from 6 Q. Were you aware if Michael Spallek was an 6 different disciplines, study the evidence in terms of 7 employee or an executive of Volkswagen? 7 scientific body of evidence in different areas, and 8 A. I -- I knew that he had -- I didn't know if 8 then make cancer classifications based on their order 9 he was an executive or not. I knew that he was 9 of cancer classifications, and then make an 10 employed by Volkswagen at some point. I was -- it 10 assessment based on that. So that was a press 11 was unclear to me if he was employed by Volkswagen at 11 release associated -- there's a report associated 12 the time of -- of his relationship with EUGT, it 12 with it. 13 didn't -- wouldn't bother me either way, that the 13 Q. Did you have input into that upgrade of 14 organization, itself, as I understood, was formed to 14 classification? 15 try and create an independent organization. 15 A. Well, I was on the committee and so I 16 Q. Okay. 16 certainly had input and, you know, I don't know that 17 A. That was my impression. 17 it's a requirement that they seek consensus, although 18 Q. So when was it that you first recall 18 it's -- it's desired. I was certainly involved and 19 discussing doing some sort of project for EUGT? 19 participated in the discussions associated with the 20 A. I think it was at that meeting, it was at 20 classifications. 21 the Health Effects Institute meeting. I believe 21 Q. How does that work? Do they take a vote? 22 approximately 2014 or '15 one of the -- one of those 22 A. Let me refresh my memory. I don't remember 23 years. 23 if we took a vote or not. You know, I think we did, 24 Q. Okay. And was there any discussion with 24 we probably did, but -- but it's been several years. 25 regard to the intent of doing this study that you-all 25 I don't -- I remember -- I remember feeling -- there Magna Legal Services P a g e 18 Page 20 1 was a vote, but I'll be honest with you, it was not 1 associated with it. And there's -- there's -- it's 2 a -- I was not a huge fan of the IARC process, let me 2 very difficult because the signal is relatively low 3 put it that way. 3 in terms of cancer and link to environmental exposure 4 Q. Did you agree with the upgrade of diesel 4 of whatever, including diesel exhaust, and so it was 5 exhaust to be classified as a human carcinogen? 5 a little bit -- you know, somewhat controversial. 6 MR. STEINBERG: Objection, vague. 6 IARC is a very conservative organization. 7 A. I don't know what that has to do with this 7 In fact, subsequent to the diesel classification, 8 deposition. 8 they classified air pollution in general as a 9 Q. Okay. Irrespective of that, tell me if you 9 carcinogen, which I feel is overly -- my personal 10 agreed or not, if you don't mind. 10 scientific opinion is overly conservative because 11 MR. STEINBERG: Same objection, objection, 11 IARC does their classifications based on hazard, not 12 vague. 12 risk. What that means is that if at some dose, at 13 A. You know, I feel that -- my personal 13 some level something may cause cancer, then it's a 14 opinion was that the upgrade was done at a -- at a 14 carcinogen. They don't take into account the fact 15 time that was interesting. It was tough because, 15 that, well, exposure in which you might encounter 16 frankly, you know, I had just completed a very large 16 that may or may not ever exist. So -- so it's - 17 study that, you know, we -- you know, Lovelace 17 there's some flaws with the process, in my opinion, 18 conducted studies, we conducted studies all 18 of designation of a carcinogen. 19 throughout the '80s showing that inhalation of diesel 19 The issue associated obviously -- also with 2 0 exhaust causes cancer in laboratory -- in laboratory 2 0 diesel exhaust is that primarily all of the 21 rats. Okay? 21 scientific evidence that was evaluated during the 2 2 Q. okay. 22 IARC process was based on diesel technology that was 2 3 A. We then did studies subsequent to that that 23 researched that wasn't reflective of current diesel. 2 4 showed that those findings were an artifact. That 2 4 And so one of the things that can be said about the 2 5 means they weren't necessarily -- they were real; 25 diesel -- the diesel organizations, Volkswagen and Page 19 Page 21 1 however, it was related to some physiologic sort of 1 many others, is that over the course of the findings 2 abnormalities in rats and how they deal with 2 that occurred in the mid '80s or so, from our lab as 3 inhalation of large amounts of material that were how 3 well as other labs around the world, there was a 4 the studies were conducted. 4 significant change in both the regulation as well as 5 When they tried to repeat the studies in 5 the engineering controls that improved the technology 6 different species, they didn't find that they caused 6 to decrease the emissions and decrease the potential 7 cancer. When they -- when they -- when they did a 7 hazard and, thus, the risk -- or decrease the 8 number of other studies, they found that the cancer 8 potential risk by decreasing the exposure. 9 findings in rats, although real, may or may not be 9 So between those studies that were 10 predictive of what was -- what may be observed in 10 conducted in the '80s and 2000 -- in the entire time 11 humans. 11 through the '90s, and then especially there was 12 The -- so in order to make the cancer 12 transformative changes in -- in 2007 and then in 2010 13 classification, you take into account results that 13 with reduction in -- in -- in emissions, and, also, 14 occur in animals, of which we did a lot of work that 14 change in the composition of emissions. And so the 15 ultimately showed that even in the old technology 15 issue with the timing of that that happened in 2012 16 diesel exhaust, what I say is, you know, pre probably 16 was that the majority of the risk assessment, and the 17 2007 technology, that a lot of the findings were - 17 majority of the work that was conducted, and the 18 were -- were suspect because it was -- it showed a 18 majority of all of the work that went into that 19 species dependence in terms of the response that 19 designation was based on technology that was relevant 2 0 would exist. 2 0 15, 20 years prior, and the assessment of -- of -- of 21 And then there was a lot of debate -- and, 21 the relevance of newer technology wasn't 2 2 frankly, I'm not an expert in epidemiology, and 22 well-integrated, and part of that just had to do with 2 3 epidemiology is the utilization of statistics to be 23 the timing of when the study was done. 2 4 able to assess correlations with humans and exposure 2 4 So, for example, we were doing our IARC 2 5 to whatever, and whether or not there's a finding 25 designation in, what, 2012, '13, whenever it was, at Magna Legal Services 6 (Pages 18 to 21) Page 22 Page 24 1 the same time we were finalizing our studies on -- 1 test systems, I probably have 30, 40 publications 2 that showed that we had no cancer in -- in animals 2 that -- that I'm involved with that have assessed 3 exposed to newer technology diesel exhaust, which -- 3 everything from cardiovascular to neurovascular to 4 which was -- and that was a Cummins engine, I 4 cancer risk associated with inhalation of 5 believe, with -- with new technology diesel exhaust. 5 environmental pollutants, including diesel exhaust. 6 And so the issue that -- at the time when all this 6 In some cases -- in many cases those have been 7 was coming together was that the evidence associated 7 outcomes that have showed and displayed that there 8 with the changing technology, and the changing 8 was a -- what I would call a negative impact 9 composition, and the changing risk, and the 9 associated with inhalation of that material. And so 10 classification of carcinogen, et cetera, just didn't 10 the -- you know, my job is to objectively report the 11 all mesh because of the timing associated with it. 11 results. In fact, you know, my opinion about whether 12 So that's just a long-winded answer for that 12 or not I think the IARC process is -- is overly 13 question. But it was -- it's a complicated question. 13 conservative or not is somewhat irrelevant to what I 14 Q. Would it be fair to say that if there was a 14 report in the literature. 15 vote as far as an upgrade based on the opinion that 15 Q. I understand. The reason that I asked you 16 you just gave me, you likely would have voted against 16 that, because you had asked me that previously. 17 it? 17 A. Sure. 18 MR. STEINBERG: Objection, misstates 18 Q. Normally we don't -- you know, although you 19 testimony, vague. 19 and I are having a conversation, normally in 20 A. Based on what I knew at the time, I would 20 depositions, you know, I ask the questions, the 21 say that I was skeptical about a reason for an 21 deponent gives the answer, but since you asked me 22 upgrade based on current conditions in -- in -- in 22 I'll answer, the reason that I asked you that was 23 the environment of where -- where diesel was going 23 because I wanted to understand from Volkswagen's 24 and -- and cancer potential based on the work that we 24 perspective how they perceived you and LRRI when they 25 had done over the years. 25 decided to hire you as opposed to anybody else -- Page 23 Page 25 1 Q. You talked about the study that you had 1 A. Yeah. 2 done regarding the effect of diesel on rats and it 2 Q. -- to do this test. 3 being a cancer-causing agent in rats -- 3 A. I think that LRRI has a reputation of being 4 A. Um-hum. 4 objective, and that -- that means a couple of things. 5 Q. -- and that you thought that -- you later 5 It means, in some cases, objectivity is going to 6 learned that perhaps it was something specific to the 6 anger either side. We've been called overly 7 rats that caused this as opposed to the diesel -- 7 conservative, we've been called overly liberal. 8 A. Right. 8 Frankly, we only want to focus on reporting the facts 9 Q. -- itself, to put it simplistically. 9 and what we believe is correct. We're trying to 10 A. Sure. 10 avoid any bias in any direction. And I think that -- 11 Q. Had you, prior to the time that EUGT hired 11 that that's, hopefully, why they engaged with us. 12 Lovelace to do this study that we're about to talk 12 Q. Understood. We talked about studying new 13 about, did you -- had you published additional 13 diesel technology and you mentioned the Cummins 14 findings in peer-reviewed journals about calling into 14 engine. Do you remember when that study was done? 15 question your previous research about the rats? 15 A. You know, we've been working on -- with the 16 A. I mean, it wasn't me, it was -- I mean, the 16 Cummins technology as long as I've been here, so I've 17 entire discipline had called into question that. I 17 done a number of studies with -- with Cummins engines 18 mean, the -- this is -- this is not my opinion, this 18 starting that right in 2000. Actually, I started 19 is pretty well established as fact that that was -- 19 actually working with Lovelace before I worked here 20 that those results were artifact, it wasn't my 20 in 1998 using Cummins technology. So many, many 21 opinion. And just as sort of a -- if what you're 21 years. The -- the more recent -- the one I was 22 doing is assessing my credibility to be able to 22 talking about relative to the cancer one, that was 23 independently assess risk and to be able to say 23 done between, I think, two -- I want to say 2008 and 24 whether or not diesel exhaust is or is not, under 24 '12. I could be misspeaking about Cummins. It 25 certain conditions, having a biological impact on 25 wasn't a Volkswagen. I remember we had three engines Magna Legal Services 7 (Pages 22 to 25) Page 26 Page 28 1 we were going through in terms of different 1 A. Right. 2 technologies, all domestic diesel technology. I'd 2 Q. -- responses? 3 have to look back at which one we ultimately chose. 3 A. Yeah. 4 Q. Sure. 4 Q. Okay. I noticed in some of the files that 5 A. I'm doubting myself right now. 5 you sent me that there was included some articles, 6 Q. So I guess what I'm trying to understand is 6 and I wanted to show a couple of those to you just to 7 if you had already conducted tests on new diesel 7 see if these are some of the types of short-term 8 technology and made determinations about how the 8 responses that you're referring to. 9 exhaust from that technology would impact humans by 9 (Exhibit 2 marked.) 10 studies on animals -- 10 Q. (By Mr. Melkersen) The first document I'm 11 A. Yeah. 11 going to hand you -- make this Exhibit 2 -- do you 12 Q. -- then why was it necessary to do 12 recognize that document? 13 additional testing as requested by EUGT? 13 A. Yeah, I've seen this paper before. 14 MR. STEINBERG: Objection, calls for 14 Q. Okay, what -- what's this all about? 15 speculation. 15 A. This is related to cardiovascular impact of 16 A. Yeah, I mean, there -- I think the focus of 16 inhalation of diesel exhaust in this particular 17 that study, I mean, this is -- that I had done 17 study. 18 previously -- I had done a couple of studies 18 Q. And is it your understanding, at least 19 previously, actually -- actually, a number of them 19 according to this study, that there -- there is an 20 relative to this topic, and the issue is that 20 impact from diesel exhaust on cardiovascular systems? 21 inhalation of materials has been shown over the 21 A. Yeah, I mean, there's -- there's been, over 22 years, and I've published a number of things, can 22 the past 15, 20 years, a very large literature 2 3 have a number of different biological effects that 2 3 associated with cardiovascular morbidity and 24 you might measure. It could be an immune response, 24 inhalation of things. This has been associated with 25 it could be a carcinogenic response. The focus of 25 environmental air pollution, it's been associated Page 27 Page 29 1 the studies that I had just mentioned that I was 1 with components of environmental air pollution. It's 2 reporting at that time were focused primarily on 2 unclear to what extent it's unique to diesel exhaust 3 long-term exposure in laboratory rats and whether or 3 or other sources of pollution because it's just been 4 not the new technology diesel would cause cancer in 4 associated with -- with ambient air in general. And 5 rats like the older technology did. So that -- that 5 so there's been studies like this one that have shown 6 study was being reported. 6 that -- and I've published studies like this one that 7 At the same time, there was several studies 7 have shown that exposure to diesel exhaust causes 8 that were conducted in humans with older technology 8 physiologic -- can cause physiologic changes in your 9 diesel, primarily those studies were conducted in 9 cardiovascular function, especially at higher doses. 10 Europe, and those were primarily looking at more 10 Q. So it sounds like what you're saying is you 11 short-term responses, transient inflammatory 11 would agree with the first line of the abstract of 12 responses that might occur at high levels of exposure 12 the study that says, "Exposure to diesel exhaust was 13 in people, and they wanted to understand -- similar 13 recently identified as an important cardiovascular 14 to the studies that we conducted to benchmark older 14 risk factor." 15 technology diesel against new technology diesel to 15 MR. STEINBERG: Objection, vague, misstates 1 6 look at cancer risk, they wanted to understand for 16 the study. 17 these short-term inflammatory responses whether or 17 A. I -- I would have to have more context. Is 18 not benchmarking older technology diesel exhaust to 18 that this paper -- 19 newer technology diesel exhaust, if there was a 19 Q. Yeah, yeah -- 20 decrease in biological response as there was with the 20 A. -- that you just showed me? 2 1 cancer study that we had done. 21 Q. -- it's the one I just showed you. It's 22 Q. I see. So they weren't -- when I say 22 just the first line of the abstract. 23 "they," I'm referring to EUGT -- the point of the 2 3 A. I honestly don't -- that is a throwaway 2 4 study was not to test cancer, but to test these more 24 sentence. 2 5 acute, shorter-term -- 25 Q. Okay. Magna Legal Services (Pages 26 to 29) Page 30 Page 32 1 A. I mean -2 Q. All right. 3 A. -- identified by whom? 4 Q. It's not precise enough -5 A. Right. 6 Q. -- for your liking? 7 A. Yeah. 8 Q. Okay. Well, I guess what -- ultimately 9 what I'm getting at was a cardiovascular response 10 up -- prior to the time o f you conducting -- when I 11 say "you," I mean LRRI -12 A. Sure. 13 Q. -- the study for EUGT -14 A. Yeah. 15 Q. -- there were at least publications out 16 there that appear to make it seem that there are 17 negative impacts potentially associated with 18 consumption o f diesel exhaust and cardiovascular 19 outcomes o f some type? 20 MR. STEINb Er G: Objection, vague. 21 Misstates the studies and is -- is just vague. 22 A. So the -- there is -- as I -- as I 23 mentioned before, over the past 20 years or so, 24 there's been a lot o f research in the cardiovascular 25 and vascular impact of inhalation of materials. A 1 A. So it's kind of weird -2 Q. Okay. 3 A. -- but it is what it is. 4 Q. But as far as being a negative impact on 5 the human physiology, I guess is what I'm asking, is 6 that that's what you're talking about when you say 7 it's generally well-known that there's an effect, 8 you're talking about a negative impact? 9 A. That's correct, at high doses of inhalation 10 of -- I'd say that 99 percent -- and I think, just to 11 backtrack, one of the motivations for trying to do 12 more work on understanding the context of more new 13 technology diesel is 99 percent of the data that are 14 out here, including this paper, are based on old 15 technology diesel conducted at high doses. And so -16 Q. Were -- sorry, go ahead. 17 A. So the question has always been, you know, 18 for these people, I think, you know, to what extent 19 does new technology diesel at similar dilutions have 20 a similar effect or not. I mean, it's a relatively 21 mundane question, but one that, you know, we've been 22 looking at. I mean, I published a paper in 2004, 23 basically, that looked at this question where we took 24 a diesel engine and -- with and without a particle 25 trap on it, and looked at acute effects. I think Page 31 Page 33 1 lot of that has been focused, primarily because of 1 actually one of them was cardiovascular effects, 2 the ability to get funding, on -- to do the research, 2 although it's been, you know, 13 years, I have to 3 on environmental materials, including diesel exhaust, 3 look back at it, and in that paper, for what it's 4 as well as gasoline engine exhaust, as well as other 4 worth, we showed that when you utilize the particle 5 just general ambient air pollution, and so it's true 5 trap with a catalyst on it, that the biological 6 that if I -- and I've published studies showing 6 response was diminished. 7 that -- that inhalation of diesel exhaust at high 7 Q. And was this an aspect of -- that you were 8 doses in laboratory animals, and there's been also 8 looking at -- when I say "this," I'm referring to 9 publications in humans, that -- that you can see 9 cardiovascular response -- in this study that LRRI 10 physiologic and/or other responses, vascular changes, 10 did for EUGT? 11 from inhalation of diesel exhaust and -- and/or 11 A. Originally they wanted to include some 12 ambient air pollution, and that's -- that's pretty 12 cardiovascular response, but because of resources we 13 well known within the scientific literature. This -- 13 ended up not -- not being able to do it just because 14 this isn't a unique paper. 14 they didn't have enough funds. 15 Q. You're talking about negative changes, not 15 Q. I see. When you say they didn't have 16 positive changes; is that right? 16 enough funds, do you know where EUGT got the funds to 17 A. In the -- yeah, in the -- in the research 17 pay LRRI to do its study? 18 world, everything's reversed because if it's 18 A. No. 19 positive, that means I get more funding. 19 Q. Did you ever have any information that any 20 Q. I see. 20 of the monies that you-all received to do the study 21 A. So -- you know, I don't know, that's kind 21 came from Volkswagen? 22 of a weird -- weird way to look at it, but yeah. In 22 A. I presume, because Volkswagen was a 23 research, positive means that something negative 23 contributing member of EUGT, that they contributed 24 happened. 24 money to the study, but I didn't know -- I had no 25 Q. Understood. 25 details in terms of who contributed what amount. All Magna Legal Services Page 34 Page 36 1 I knew is the contract was with EUGT. 1 lot of work, and all of the work had been done -- 2 Q. Okay. 2 conducted with older technology diesel exhaust. 3 A. And that -- you know, and that we were 3 Sandstrom published, I think, one paper where he did 4 working with Volkswagen as -- as a major contributor 4 some work with a trap where he tried to integrate 5 to the study. 5 that in. 6 Q. Sure. 6 But -- and I think the guys at EUGT and 7 (Exhibit 3 marked.) 7 Volkswagen, I think, wanted to understand what would 8 Q. (By Mr. Melkersen) I'll show you what I'm 8 happen if they repeated these studies with a -- with 9 marking as Exhibit 3. It's another one of these 9 a newer technology as opposed to the older 10 articles that came from your files, it's entitled "A 10 technology. And originally they wanted to do it in 11 randomized cross-over study of inhalation of diesel 11 humans, but what happened at that time, this is right 12 exhaust hematol" -- I can't even say that word, I'm 12 on the heels of the IARC classification of diesel 13 sure you can -- 13 being a carcinogen, and everyone got very concerned 14 A. Sure. 14 about doing any clinical study with diesel exhaust in 15 Q. -- pronounce it for me -- "indices, and 15 particular, and even air pollution in general. And 16 endothelial markers in humans." What -- what is this 16 this wasn't unique to them, this was the EPA and 17 study about? 17 everything like that, because once you add something 18 A. Again, this was a study similar to what we 18 that was classified as a carcinogen, they worried 19 were kind of looking at where there -- where we're 19 about litigation. Basically, people saying I 20 conducting, in this case, inhalation studies, and 20 intentionally exposed you to a known carcinogen, and 21 these were the guys up at University of Washington, 21 you can -- I'm sure you can figure out the rest. 22 I've worked with these guys a fair amount. Basically 22 Q. Sure. 23 they're doing studies in, looks like, human -- in 23 A. So... 24 this particular study, they were looking at two 24 Q. In any of the studies that you did over 25 different age subjects. They bring them in, they 25 this 30-year period of time that you were talking Page 35 Page 37 1 expose them to diesel exhaust using old technology 1 about earlier relating to diesel exhaust -- 2 diesel exhaust, and they're -- they're looking at 2 A. Yeah. 3 changes in blood chemistry as well as endothelial 3 Q. -- I know you said that sometimes the 4 function, changes in inflammation. Endothelial 4 European studies used human test subjects. Have you 5 function is a marker of vascular function in the 5 ever used human test subjects? 6 context of vascular disease related indices. And 6 MR. STEINBERG: Objection, vague. 7 they saw some minor changes here that they report. 7 A. Yeah, it wasn't just the Europeans. They 8 Q. Okay. Is this something that you-all were 8 did it in the U.S., as well. This publication is 9 focused on with the EUGT study? 9 from some folks that I've done a lot of work with up 10 A. Yeah, we -- we were -- we were trying to -- 10 at University of Washington, and -- and we are -- and 11 basically, there's a number of papers here that have 11 so there's been a lot of both clinical and 12 been conducted -- you know, they've done a number 12 non-clinical studies. 13 of -- EUGT, the reason why we used primates in the 13 Myself, I've been involved with some 14 study was EUGT was -- okay, this makes -- now I'm 14 clinical studies, we have a clinical unit here. I 15 remembering -- EUGT was looking at a lot of this 15 have never done a diesel exhaust with humans, though, 16 literature that was conducted in -- in clinical 16 diesel exhaust study with humans, personally, where I 17 studies where they had brought in healthy and some -- 17 did the experiments myself. 18 sometimes unhealthy subjects and conducted work 18 Q. Is there a reason why that is? 19 where -- using older technology diesel at relatively 19 A. We don't have a human exposure lab for 20 high doses, in an acute basis looked at inflammatory 20 diesel. We had talked about trying to figure out the 21 and other responses in people, and shown some modest 21 logistics of actually doing it. When we originally 22 responses, and there's a number of papers that have 22 were discussing this, we were talking about doing a 23 done this from different groups. This is from 23 clinical study here. Because we have a clinical 24 University of Washington. There's a group, Tom 24 trial group, we have physicians on staff, and we 25 Sandstrom's group over in Switzerland that's done a 25 could do it. I mean, I do clinical studies, I just Magna Legal Services 10 (Pages 34 to 37) Page 38 Page 40 1 have never done it with diesel because our clinical 1 EUGT study? 2 studies are generally done on this campus, our 2 A. Yes. 3 non-clinical studies are done on another campus that 3 Q. All right. But using newer technology, not 4 we have that's about 12 miles away, and we were 4 the older technology? 5 trying to figure out how to make that work, and in 5 A. The study involved using both newer and 6 the process of trying to figure out how to make that 6 older technology. 7 work, during that time the -- you know, IARC 7 Q. Understood. 8 reclassified diesel and we decided it was not 8 (A discussion was held off the written record.) 9 appropriate, because of potential litigation, to deal 9 Q. (By Mr. Melkersen) All right, Dr. McDonald, 10 with -- to do studies in humans. And EPA and 10 I'm going to show you what's been -- do this a little 11 everybody at the same time shut down their human 11 bit out of order. I've -- going to mark as 12 exposure lab, everyone kind of put the brakes on that 12 Exhibit 6 -- we haven't marked -- I haven't shown you 13 kind of stuff. 13 5 yet, but I'll do that in a second. 14 Q. You say "we decided." I saw a proposal 14 (Exhibit 6 marked.) 15 that included diagrams of a lab setup that would 15 MR. STEINBERG: Is this 6, Mike? 16 actually do this testing on humans that actually had 16 MR. MELKERSEN: 6. 17 an exercise bike -- 17 MR. STEINBERG: Okay. 18 A. Yeah. 18 Q. (By Mr. Melkersen) I've handed you what 19 Q. -- in the diagram. Do you know what I'm 19 I've marked as Exhibit 6 to your deposition. Can you 20 talking about? 20 identify this document? 21 A. Yeah, I mean -- well, it's been a while, 21 A. What do you mean, can I identify it? 22 but originally what we were talking about with them 22 Q. In other words, can you tell me what it is? 23 is doing a study in humans. But -- but, again, 23 A. It's a conversation back and forth with 24 during -- right -- right in the process of kind of 24 myself and Michael about using -- about what -- 25 going back and forth with them, you know, all of 25 whether we use primates or humans. Page 39 Page 41 1 this -- all of these changes happened and -- and 1 Q. Okay. And did this indicate anything about 2 everybody kind of got concerned about doing work in 2 the company lawyers making a decision about that 3 humans with -- with -- after the IARC designation. 3 issue? 4 Q. Do you know if that decision was made by 4 A. Yes. Yeah, it does -- it does -- it does 5 Volkswagen Group of America's legal department? 5 talk about their lawyers, the company lawyers, and 6 A. I have no idea. 6 that it was related, again, to the -- the 7 Q. Okay. Just to get this out of my stack of 7 indemnification and the issue relative to primates 8 papers, I'll ask you about this one, too. 8 versus humans and the risk of liability associated 9 A. Sure. 9 with that. 10 Q. I'll make this 4. 10 Q. All right, and when you're talking about -- 11 (Exhibit 4 marked.) 11 when they're talking about company lawyers, did you 12 Q. (By Mr. Melkersen) What I'm handing you is 12 understand that to mean Volkswagen? 13 another one of these scientific papers entitled 13 MR. STEINBERG: Objection, calls for 14 "Effects of diesel exposure on lung function and 14 speculation. 15 inflammatory biomarkers from airway and peripheral 15 A. You know, this was in 2013, I can't recall, 16 blood of healthy volunteers in a chamber study." 16 but it -- because it says -- because it says VW 17 This is more of the same of what you were just 17 lawyer, I presume that I knew -- understood that just 18 discussing about -- 18 by the statement. 19 A. Right. 19 Q. Right. 20 Q. -- these studies that have been done, but 20 A. Yeah. 21 did it on old diesel technology, not new; is that 21 Q. So -- so "I will check out if a talk from 22 right? 22 your CEO to the VW lawyer in U.S. would be helpful to 23 A. Yup. 23 clear the raised questions of indemnification," what 24 Q. All right. And was this one of the 24 was that about? 25 aspects, again, that you would be looking at with the 25 A. Again, this was -- this was all related to Magna Legal Services 11 (Pages 38 to 41) P ag e 42 P ag e 44 1 this -- this potential issue -- it's all surrounding 1 boiling up - 2 the IARC classification issue and the -- the - 2 Q. I see, I see. 3 whether -- and the issue of risk associated with the 3 A. -- basically in terms of impacting people's 4 carcinogenic classification of diesel exhaust and 4 decisions. 5 whether or not exposing humans to the recently 5 Q. Got you. Got you. I noticed here that - 6 classified -- even though all of these studies, as 6 on these e-mails, that there is a cc to Stuart 7 you've pointed out, had been done, I think at that 7 Johnson at VW.com. 8 point they were concerned because of the potential 8 A. Um-hum. 9 risk of doing controlled exposures to a known 9 Q. Do you know who Stuart Johnson is? 10 carcinogen, to a specified carcinogen from IARC. 10 A. Yeah, he was one of our technical contacts. 11 So at the same time as this was happening 11 I mean, once -- once we got going within the study - 12 in 2013, I was actually working with these guys that 12 I didn't have much interaction with Stuart until we 13 published this paper here, Joel Kaufman's group, and 13 started -- that I can recall anyways, until we 14 we were supposed to do controlled human exposures, 14 started going, but Stuart ended up then being kind of 15 and the funding agency stopped and wouldn't let us do 15 one of our technical contacts at Stuart to be able to 16 it. That was the -- the EPA was the -- U.S. 16 kind of -- at Volkswagen when we started doing the 17 Environmental Protection Agency was the funding 17 study. 18 agency, and they -- they stopped and wouldn't allow 18 Q. When you say technical contacts, what was 19 us to do any human exposures after that 19 his role? 2 0 classification for that -- for either. 20 A. Shoot. I'll be honest, I didn't quite 21 So I think that they were going through the 21 understand how they all fit together. Stuart was 22 same thing as the EPA and everybody else at the same 22 kind of helping -- you know, for one thing, he was in 23 time in, you know, dealing with this particular 23 the U.S., so he helped kind of bridge the time zone 2 4 issue. This was sort of -- to some extent, that's my 24 thing so I could call -- call somebody and things 25 speculation, because all I know is honestly what was 2 5 like that, for logistics, because there were some Page 43 Page 45 1 e-mailed. I didn't have a lot of phone conversations 1 things that had to happen for us to be able to get 2 with them just because they're -- of the time zone 2 the study here. We had to buy some equipment and get 3 issue, so a lot of this was done by e-mail. 3 some things here and stuff like that, and I think he 4 Q. But as far as you were concerned, as I 4 was helping out with logistics for getting that stuff 5 understand the e-mail here at the bottom, you state 5 done. 6 "We are happy with either approach." So you pretty 6 Q. One of the pieces of equipment that you-all 7 much left to it Volkswagen as to what they wanted to 7 had to buy was a dyno, right? 8 do; is that right? 8 A. Yeah. 9 A. That's correct. Because -- you know, 9 Q. What is that? 10 because, honestly, I wasn't very concerned about it, 10 A. It's basically a treadmill for a vehicle 11 you know, because, you know, at the time -- and I 11 that allows you to put it on a -- you put it on a 12 think subsequent to that -- at the time, there was a 12 treadmill, and then that treadmill mimics, basically, 13 number of diesel exhaust studies going on in the U.S. 13 a driving cycle. So that otherwise you basically 14 and other. But I don't -- I can't remember if it's 14 just take a vehicle up and run it idle, which is how 15 subsequent to that or right around the same time, 15 a lot of these other studies are conducted, they just 16 then all of a sudden kind of the bottom dropped out 16 basically either use a diesel generator or they drive 17 and everyone stopped doing studies just because 17 up a vehicle and they just leave it idle and have 18 the -- the -- sort of the concern about litigation 18 someone inhale out the tailpipe. But it's not - 19 relative to exposure to a designated carcinogen. 19 they try -- you know, if you use a dynamometer, which 2 0 Q. It's my understanding that the designated 2 0 is what we've typically done for our previous studies 21 carcinogen upgraded that classification that happened 21 with animals, you -- you are better simulating kind 2 2 a year before this - 22 of on-road conditions with using, basically, a 23 A. Right. 23 treadmill. 2 4 Q. -- right? 2 4 Q. And as I understand it, Stuart Johnson was 2 5 A. So a lot of this just sort of had been 25 the one who picked out the dyno for this study; is Magna Legal Services 12 (Pages 42 to 45) Page 46 P ag e 48 1 that right? 1 things like that, so they wanted to just -- just do a 2 A. Probably. I mean, I'm not an expert in 2 chassis, which for -- in the tense of -- as far as I 3 dyno selection so I'm sure he played a role. I mean, 3 can tell, whether you use a chassis or an engine 4 those guys are -- you know, I think Stuart and 4 stand dynamometer should really have no impact on the 5 there's another guy on here, James. 5 study because either way you're running it through a 6 Q. Liang? 6 cycle, basically. 7 A. Yeah, Liang. I mean, ultimately their job 7 Q. Prior to utilizing or doing this particular 8 was to help provide engineering support for the 8 study we're talking about with EUGT, had you-all ever 9 study. And so they helped with getting the dyno 9 used a chassis dyno before? 10 there and doing that kind of stuff, basically. 10 A. I had used a chassis dyno before in a 11 Q. Okay. 11 previous job, but I had never used a chassis dyno 12 A. I mean, I'm just a chemist and biologist, 12 here before. 13 not an engineer. I mean, we've done a lot of work 13 Q. So in your 30 years or so here at LRRI -- 14 over the years with it, but they helped with sort of 14 A. I've only been here for 18 years. 15 the engineering aspects of the -- of the -- of the 15 Q. Oh, excuse me. 16 study. 16 A. Yeah. 17 Q. Would it be fair to say that a standard 17 Q. Eighteen years at LRRI, no chassis dyno? 18 practice in conducting this type of study, at least 18 A. That's correct. 19 up until this point in time, for the majority of 19 Q. All right. And when you say that we wanted 20 studies would be to let the vehicle run idle as 20 to use a chassis dyno, would it be fair that that's 21 opposed to putting it on a dyno? 21 what Volkswagen suggested? 22 MR. STEINBERG: Objection, vague. Standard 22 A. Yeah, because I didn't really care. You 2 3 procedure for whom? 23 know, if they wanted to help set it up on an engine 24 A. All of our work, I'd say 90 percent or more 24 stand or if they wanted to do a chassis, it doesn't 25 of our work has all used a dyno -- 25 really matter to me. At least, that's how I recall P ag e 47 Page 49 1 Q. Okay. 1 it. 2 A. -- and the -- a lot of the work that had 2 Q. Okay. 3 been done and reported in the literature didn't use a 3 (Exhibit 5 marked.) 4 dyno, not because it wasn't the right thing to do, 4 Q. (By Mr. Melkersen) So I'm going to hand you 5 it's because they didn't have the resources to put it 5 what I've marked as Exhibit 5. This, if you would -- 6 in and get it done and utilize that for their 6 it appears to be the agreement between LRRI and 7 studies, because most of that work is funded on 7 Lovelace. If you could take a look at that and tell 8 grants and things like that. 8 me if you would agree with me that that's what this 9 Q. If 90 percent's of your-all's work -- when 9 is. 10 you say "you," I assume you mean LRRI? 10 A. It appears that that's what this is. 11 A. Yeah, that's correct. 11 Q. And turn to page 7. Do you recognize the 12 Q. If 90 percent of your prior work had been 12 signatures there? 13 done using dynos, why did you-all have to buy a new 13 A. Page 7. 1 4 one? 14 Q. It's at the bottom. 15 A. Because what -- what our dynos were -- are 15 A. Oh, page 7 of the first document. 1 6 called engine dynos, and this one is called a chassis 1 6 Q. Yes. 17 dyno. So the difference is an engine dyno, you 17 A. Do I recognize those signatures? 18 actually take the engine from the vehicle and you put 18 Q. Yes. 19 it on a test stand and you connect it to a 19 A. I mean, I recognize Jane's -- 20 dynamometer, and it just runs outside of the vehicle. 20 Q. Okay. 2 1 It's just basically an engine sitting in a room. But 21 A. -- because she was our employee. 22 for this study we wanted to use actual vehicles. And 22 G. Zimmermeyer, I -- I don't know. And -- oh, and 23 I think it's just easier, for one thing, probably. 23 Spallek, I know Michael, but I don't -- 2 4 Just, you know, for one thing, all the electronics 2 4 Q. Okay. 2 5 associated with dealing with new technology and 2 5 A. I wouldn't know his signature -- Magna Legal Services 13 (Pages 46 to 49) Page 50 Page 52 1 Q. Okay. 1 basically what you were just describing, and about 2 A. -- if I saw it, so... 2 halfway down there's a line that says "What we can't 3 Q. Good enough. 3 do is to compare old VW diesel car with new VW diesel 4 A. I presume it's his, because it says so. 4 car!" Do you know why that was? 5 Q. And the proposal attached to this, this is 5 A. I don't know their -- their -- I mean, I 6 the proposal that became part of your contract with 6 honestly don't know. I -- I could -- I could guess, 7 EUGT? 7 but I wouldn't know. I mean -- I mean, the -- my -- 8 A. Correct. 8 Q. Well, it looks like here at the bottom it 9 Q. All right. As I understand it, the total 9 says, "Therefore" -- 10 contract price to perform what was required in this 10 MR. STEINBERG: Objection. Are you 11 contract was approximately in the low 700,000 range? 11 finished with your answer, Doctor? 12 A. Right. 12 Q. I'm sorry. 13 Q. Is that your recollection? 13 A. I was just still reading the e-mail. 14 A. Give or take, yeah. 14 Q. I didn't mean -- I didn't mean to interrupt 15 Q. So after the contract was signed, whose job 15 you. Go ahead. 16 was it to pick out the cars that you were going to 16 A. I don't know whether I'm done with it or 17 use? 17 not. I'm still -- I hadn't had a chance to review 18 A. Well, I think it was a bit of a 18 the whole thing. 19 collaboration. They certainly picked the car that 19 Q. I'll wait. Sorry. 20 they were going to use on their side is my 20 A. Okay. I mean, my guess and recollection is 21 recollection. They -- they said they had this car or 21 that older technology diesel, whether it's from a VW 22 whatever. 22 or anything else, at high concentrations, is going to 23 Q. When you say "they," who are you talking 23 cause -- is likely going to cause some sort of 24 about? 24 biological response, as indicated by all this 25 A. Spallek -- 25 literature, and I think that -- that likely because Page 51 Page 53 1 Q. Okay. 1 they were -- because, you know, VW was supporting a 2 A. -- and those guys. They -- they wanted to 2 lot of this, didn't want anything that said even that 3 pick out their vehicle. 3 their old technology was going to have some sort of 4 And then I think that the other -- on the 4 biological response, even though they, I think, 5 other side, using the -- doing the older technology 5 probably realized it wouldn't really matter what -- 6 diesel, the -- my recollection was that they were 6 who the vendor was. I mean, utilizing older 7 okay with -- they wanted us to pick one and, you 7 technology diesel exhaust, it's pretty well 8 know, they just wanted something that was 8 established that if you expose at that level of 9 representative of older technology that would enable 9 exposure of 300, you're going to see some sort of 10 us to get a similar particle concentration of the 10 effect. 11 aerosol to what a lot of these previous studies had 11 Q. Here in the bottom paragraph it appears 12 conducted, which was 300 micrograms per cubic meter. 12 that you had suggested that the old diesel technology 13 And so, ultimately, I think -- my recollection was 13 they actually used VW cars, and Spallek -- 14 that we -- we did the research to find the old -- the 14 A. Where is that? 15 older vehicle, and found that, and they provided the 15 Q. Here at the bottom paragraph, there -- 16 newer vehicle. That's my recollection. 16 Spallek says, "Therefore, I will not forward your 17 (Exhibit 7 marked.) 17 update with the suggestions for the VW cars today." 18 Q. (By Mr. Melkersen) Let me show you a 18 A. Oh, okay. 19 document that I've marked as Exhibit 7. This appears 19 Q. So it appears, at least from this e-mail, 20 to be an e-mail from Michael Spallek to you, copying 20 that you had suggested let's use VW cars -- 21 James Liang and Stuart Johnson, on October 31, 2013. 21 A. Sure. 22 Would you agree with me on that? 22 Q. -- for the old technology and Volkswagen 23 A. Correct. 23 put the kibosh on it. 24 Q. And it appears that this is talking about 24 A. Okay. 25 what's going to happen in the study, which is 25 Q. Is that right? Magna Legal Services Page 54 Page 56 1 A. It appears so. 1 So what -- the way that we've tried to do 2 Q. Okay. What is a dilution ratio? 2 that, both here and in other studies, is to just 3 A. So you're doing your experiment, you have 3 basically say, all right, what's your dilution for -- 4 your car on a treadmill, you have your exhaust coming 4 to achieve a certain concentration in the older 5 out, and then prior to a subject, whether it's a 5 technology, and based on that, then, if you apply the 6 human or a monkey or a rat or whatever, inhaling that 6 same dilution to a newer technology, then -- then 7 material, you have to dilute it because -- a couple 7 that's your benchmark. And it's -- it's got flaws, 8 of reasons. Number one, just from a practical 8 but there's really not an easy way to do this, to 9 standpoint, directly out of the exhaust it's hot and 9 make -- to do comparisons that are -- that address 10 it's, you know, really concentrated and things like 10 this issue. So it's a long-winded answer to your 11 that, and it's not -- the other thing is it's not 11 question. A dilution ratio is the ratio of air that 12 necessarily relevant to what people are exposed to in 12 comes directly from the tailpipe to air that is used 13 terms of knowing what -- what people might see in the 13 to dilute it. 14 environment. Even 300 micrograms per cubic meter, 14 Q. Okay. And depending on how that dilution 15 the level that was studied here for the older 15 ratio is set, would you agree with me that it will 16 technology, is very -- is unrealistic for an 16 and can significantly impact the biological response 17 environmental exposure. In some cases in mines and 17 you may see to a subject? 18 confined environments, you might see exposures like 18 A. O f course. 19 that, but -- but you won't see that in the 19 Q. And I saw some discussion in the e-mails 20 environment. But people use higher exposure levels 20 that you sent me about some of your colleagues here 21 for these acute studies because if you use a higher 21 at LRRI disagreeing that the dilution ratio between 22 level then typically you might see a response. And 22 the old diesel technology and the new diesel 23 the idea, I think, that people use is that that high 23 technology should be set at the same level because 24 level, even if -- so if you use a lower level that 24 you're not using engines of the same size. Do you 25 you see in the environment, you probably wouldn't see 25 know anything about that? Page 55 Page 57 1 a response, so they use a high level and they say -- 1 MR. STEINBERG: I object to the colloquy. 2 and, basically, the idea is that if you see a 2 I object on the grounds of vagueness, assumes facts 3 response, it's more representative of sort of a 3 not in evidence. 4 sensitive subject or -- or things like that. So 4 A. I'd have to look at the dialogue in my -- 5 the -- you have to dilute to get down to a target 5 to refresh my memory. 6 concentration of aerosol that is relevant to the 6 Q. Let me ask the question in a different way. 7 study that you're trying to do. 7 Is there a problem with using an identical dilution 8 And so in this particular study, the design 8 ratio and using engines of different sizes and doing 9 was -- it's difficult because when you're dealing 9 a comparison? 10 with a mix of stuff, right, which diesel exhaust is, 10 A. No. I think likely in that discussion 11 it's got particles and gases and a bunch of other 11 the -- the person was not understanding how the ratio 12 things in it, you have to decide when you're -- and 12 is done in that -- it is my recollection probably -- 13 this study was a demonstration study to try and 13 in that the ratio is not just a blind, you know, add 14 compare one technology to the other. So the question 14 the same amount of dilution, it's a ratio of in and 15 is how you compare one technology to the other. And 15 out is my recollection. So, yeah, if you overdilute, 16 you -- the issue is that because the constituents of 16 then -- then that can be a problem obviously, 17 new technology diesel are so different than old 17 especially if your goal is to compare the dilution 18 technology diesel, you couldn't just say, well, I'm 18 ratios. 19 going to, you know, control the exposures at the same 19 But -- but you need to take into account 20 concentration of particles that are in the air, or 20 when you do your dilutions -- I'm trying to think how 21 something like that, or gases that were in the air, 21 to do this. Yeah -- no, yeah, I think we were -- 22 because the new technology diesel, the levels are so 22 they were discussing you can do it multiple ways, and 23 much lower that you -- it wouldn't make any sense in 23 neither way is perfect. In -- if you had more 24 terms of trying to do those -- those types of 24 resources, you would do it -- you would do a dose 25 studies. 25 response -- what we call a dose response where you Magna Legal Services Page 58 Page 60 1 would dilute it a number of different ways across a 1 some -- somewhat vague, but -- but these do ring a 2 number of different concentrations, but we only had 2 bell. 3 the resources to do it one way. I honestly don't 3 Q. Okay. So according to this, there is 4 remember exactly how we did it. I mean, maybe if you 4 some -- there's a discussion about some AT&T 5 gave me the dialogue, I can refresh my memory. 5 microcell. Do you know what that's all about? 6 Q. I saw an e-mail from you at the beginning 6 A. I have no clue. 7 before the contract was signed where you refer to 7 Q. Was there an issue with trying to get a 8 this as being a silly study, something to the effect 8 direct line of communication between your lab and 9 of it being a silly study, or something like that. 9 James Liang so he could monitor what was going on? 10 A. I don't -- 10 A. I have some vague recollection of that, 11 MR. STEINBERG: Objection to the colloquy. 11 but, again, it was -- Hammad was dealing with that 12 A. I don't -- I'd have to look at the 12 interaction with -- with James on the back and forth. 13 dialogue. I don't recall. 13 Q. When -- down here on the e-mail, second 14 Q. Was there problems that you had with the 14 from the top of the first page where it says "James, 15 way that EUGT was proposing that this study be done 15 thank you for the e-mail. As you mentioned, we will 16 from a scientific standpoint? 16 bring back the F-2 -- we will bring back the F-250 17 A. I honestly don't know what you're talking 17 back on dyno and will adjust flows and valves to 300 18 about. I don't recall that -- that dialogue. 18 ug/m3." Does that have anything to do with dilution? 19 Q. Okay. 19 A. Yes. I mean, basically it looks like what 20 A. You'd have to -- maybe if you gave it to 20 we did was we did -- we said, let's set the dilution 21 me, I would -- 21 to achieve a certain concentration based on the older 22 Q. Okay. 22 technology diesel that kind of basically matched what 23 A. -- it would refresh my memory. 23 was in all these papers and then used the same -- 24 Q. It's true, isn't it, that James Liang was 24 used the same dilution that we used for that on the 25 the person primarily responsible for setting the 25 other engine. The flaw with that, as you point out, Page 59 Page 61 1 dilution ratios in this study? 1 is that, you know, because the engine -- other engine 2 A. James was -- my recollection, James was 2 had a smaller displacement, it means that the 3 involved primarily with getting us the vehicle and 3 dilution ratio is a little bit higher. 4 making sure that the vehicle was set up right, and -- 4 Q. Say that again. 5 and getting it here and taking care of those 5 A. It means that the dilution ratio, it looks 6 logistics. I don't recall his role on the dilution, 6 like, was a little bit higher. 7 but then again it's been a few years. 7 Q. I see. So they weren't -- they weren't the 8 Q. Okay. 8 same, they were -- they were different? 9 A. I mean, by -- by the time it got to the 9 MR. STEINBERG: Can you speak up, Mike? 10 level of nuts and bolts, I'll be honest with you, you 10 Sorry. 11 know, I was involved, but on a day to day it was our 11 A. It was the same amount of dilution, but the 12 internal engineers working with those guys. 12 ratio was a little bit -- it looks like the way -- 13 Q. Okay. I'll give you another document to 13 the way we ended up doing it was a little bit higher 14 take a look at. I'll make this 8. 14 for the... 15 (Exhibit 8 marked.) 15 Q. I see. And if you look on the -- 16 Q. (By Mr. Melkersen) So I've handed you 16 A. It was actually pretty close, though, 17 what's been marked as Exhibit 8, and it appears to be 17 surprisingly. 18 a series of e-mails back and forth between some of 18 Q. Okay. If you take a look on -- the third 19 your guys and -- and you, and your guys and Liang. 19 page back appears to be an e-mail from Hammad Irshad? 20 My question is do you recognize these e-mail 20 Who's -- 21 exchanges? 21 A. Uh-huh. 22 A. Well, I wasn't on them. Oh, it looks like 22 Q. -- Hammad Irshad? 23 I was on this one. That's weird, some of them I 23 A. Hammad Irshad is -- 24 was... That's weird. Oh -- oh, I see, it was from 24 Q. Hammad, sorry. 25 Hammad that I was included. Okay. Yeah, it's 25 A. -- an engineer that works for me. Magna Legal Services Page 62 Page 64 1 Q. Okay. And he is sending an e-mail to 1 Q. Okay. 2 Mr. Spallek talking about the dilution ratios and how 2 A. I don't -- a lot of the German names kind 3 they should be set, correct? 3 of run together after a while. 4 A. Yeah, it looks like it. 4 Q. I'm with you on that one. I'm with you on 5 Q. And do you agree with me that on the 5 that one. All right. 6 page -- on the second page at the bottom, that 6 (Exhibit 9 marked.) 7 Mr. Spallek responds and states, "Hi, Irshad, I 7 Q (By Mr. Melkersen) So I'm going to hand you 8 talked to James because he is the specialist in 8 another e-mail here that's Exhibit 9, and looks like 9 technical details and he will get in touch with you 9 if you start at the second page, do you agree with me 10 ASAP to find out the best solution." Right? 10 that it looks like there's an e-mail from you to 11 A. It looks like that these are older than 11 Michael Spallek in August -- August 27, 2013, where 12 these, like it's the newer ones are on top and the 12 you're basically introducing your project coordinator 13 older ones are on the bottom. 13 and basically talking about procuring a second 14 Q. Oh, I see. They're in -- they're in the 14 vehicle to have emissions testing done? Do you see 15 incorrect order, it looks likes. 15 that? 16 A. Well, they're in the correct order in a -- 16 A. Yup. 17 in an e-mail string. 17 Q. Okay. Do you recall this exchange? 18 Q. Right, right, right. 18 A. Yeah, I do. 19 A. As you go down the list they're older and 19 Q. Okay. And in response, Mr. Spallek states 20 then up -- up the list they're newer. 20 on August 27, 2013, "Jake, I will try to get you in 21 Q. Right, right, right. So -- 21 touch with James Liang from VWoA ASAP. You know 22 A. But you're correct in that Michael said 22 James from our meeting last year. He will provide 23 that -- to get in touch with James for the 23 you with all the technical information." 24 engineering part. James was kind of the engineering 24 A. Okay. 25 liaison that worked with Hammad to get the -- the 25 Q. Is that what happened as far as you can Page 63 Page 65 1 thing set up. 1 recall? Did he put you in touch with James Liang and 2 Q. So you would -- would you agree with me, 2 that James Liang provided you with the technical 3 after looking at this exchange, that, in fact, James 3 information needed for the project? 4 Liang was involved in setting the dilution ratios? 4 A. Yeah. I mean, if you just follow the 5 MR. STEINBERG: Objection, misstates the 5 e-mail trail, that's kind of what happened. 6 evidence. 6 Q. And it appears that James Liang is also 7 A. Well, I mean, the physical conduct of 7 setting up which cars are going to be used; is that 8 setting them was done by Hammad. Looks like James 8 right? 9 and/or VW had input into how they wanted to do it in 9 A. Correct. 10 terms of whether or not we used just a standard, say, 10 Q. Now, as I understand it, ultimately even 11 match the dilution itself versus a dilutional rate. 11 though Mr. Liang is suggesting a Passat here, that a 12 And so he had technical input, but the physical 12 Passat was not ultimately used, it was a different 13 manipulation of the valves was done by Hammad. 13 vehicle; is that right? 14 Q. Okay. And it looks like, if you look at 14 A. Correct. 15 the e-mail down at the bottom of page 3 dated 15 Q. And what vehicle was ultimately used? 16 November 6, 2014, from Michael Spallek to you, it 16 A. They used a bug. 17 looks like Mr. Spallek was also having input into how 17 Q. A Beetle? 18 these dilution ratios would be set. Is that right? 18 A. Yeah, a Beetle, yeah. 19 A. Yes, that appears to be the case. 19 Q. And that was also picked out by Mr. Liang, 20 Q. And in this exchange, Mr. Spallek indicates 20 wasn't it? 21 that Professor Helmut Greim is involved. Do you know 21 A. It wasn't picked out by me. 22 who he is? 22 Q. Okay. Do you know where it came from? 23 A. No idea who Helmut Greim is. 23 A. The assembly line. I mean, that's -- 24 Q. Okay. Never heard of him? 24 Q. All right. 25 A. I don't think so. 25 A. I mean, they -- James actually drove it to Magna Legal Services P ag e 66 P a g e 68 1 our site. 1 A. Okay. 2 Q. James Liang personally drove the car here? 2 Q. Can you take a look at that and see if that 3 A. Correct. 3 refreshes your recollection, and could you explain to 4 Q. How many times was James Liang here during 4 me why those changes were made? 5 the course of this study, if you know? 5 A. Can you just make it easy for me -- 6 A. I don't know. Maybe -- maybe twice, once 6 Q. Yeah. 7 or twice. 7 A. -- and show me where the -- where the 8 Q. Okay. And as I understand it, he monitored 8 changes are? 9 the study as it was ongoing remotely through the 9 Q. Yeah, sure. So it looks like in part 4a on 10 system that was set up, the Microsoft system? 10 the first page of progress report number 2, this is 11 A. Yeah, I hadn't recalled that, but I guess 11 the one that was changed, it says "Older technology 12 that's the case because obviously we were setting up 12 vehicle should have a comparable size engine" -- 13 communications with them. And I think that -- that, 13 A. Oh, I get where you're going with this. 14 you know, he was -- he was trying to verify the 14 Yeah, okay. I mean, you showed me an e-mail about 15 operating condition of the VW to make sure that it 15 ten minutes ago that said -- that indicated that they 16 was operating according to specifications, as I 1 6 didn't want to use a Volkswagen for the older 17 understood it. 17 technology vehicle, and so as a result of that e-mail 18 Q. Okay. I'm going to show you -- I need more 18 correspondence likely I changed it to propose these 19 exhibit stickers. I should have done a better job, I 19 other vehicles that were not VWs as the benchmark 20 could have used less documents, right? If I had more 20 vehicle. 21 time to prepare, I would have. 2 1 Q. Okay. Why is it that you said in your 22 (Exhibit 10 marked.) 22 draft report that they should have a comparable sized 23 Q. (By Mr. Melkersen) All right, so I'm going 23 engine? 24 to show you what has been marked as Exhibit 10, and 2 4 A. I'm sorry, where did I say that? 25 I'll represent to you and get you to confirm it if 2 5 Q. So 4a on page 1. P a g e 67 P a g e 69 1 you would that these are a series of monthly progress 1 A. Of the first one or the second one? 2 reports that you provided documenting the progress on 2 Q. The first one. 3 this contract, this EUGT LRRI contract. Is that 3 A. Okay. 4 fair? 4 Q. Those -- the draft that got changed. So 5 A. Yes. 5 4a, it says "Older technology vehicle should have a 6 Q. So turning your attention to progress 6 comparable size engine as that of new technology VW 7 report number 2, which is dated October 2013 -- 7 Passat." 8 A. Um-hum. 8 A. Yeah. 9 Q. -- I will represent to you that the first 9 Q. But then after Spallek and you talk, that 10 page of this progress report number 2, based on the 10 is eliminated. Why? 11 files that you sent me, was an initial draft of the 11 A. Well, the issue -- you know, ideally they 12 report, but the actual report that got sent is the 12 would have a comparable size engine. The issue is VW 13 second page. 13 makes the only small engine in the U.S. available. 14 MR. STEINBERG: I'm sorry, Mike, you're 14 There's no other small diesel engine vehicles in the 15 going to have to speak up. 15 country. 16 Q. The actual report that got sent was the 16 Q. Were -- was Spallek and EUGT and/or 17 second page -- 17 Volkswagen attempting to dictate to you how you did 18 A. Oh. 18 your testing? 19 Q. -- progress report number 2. You see that 19 MR. STEINBERG: Objection, argumentative. 20 there's two progress -- 20 A. I mean, I guess I didn't take it that way 21 A. Okay. 21 at the time. I mean, you saw the e-mail 22 Q. -- report number 2s. 22 correspondence -- 2 3 A. Okay. 23 Q. Right. 24 Q. And there's some changes between the draft, 24 A. -- it was somewhat casual. I didn't feel 25 the first report, and what was ultimately sent. 25 that they were, you know -- I didn't feel intimidated Magna Legal Services 18 (Pages 66 to 69) Page 70 P a g e 72 1 in any way -- 1 know, it didn't bother me, honestly -- 2 Q. Okay. 2 Q. Okay. 3 A. -- put it that way. You know, I guess I 3 A. -- if you were going to be doing a VW 4 kind of understood where they were coming from, 4 versus a this, that or the other. 5 whether I agreed or disagreed. I didn't think that 5 Q. Gotcha. 6 it would impact the goal of the study which I viewed, 6 A. You know, part of that may be because I'm 7 at the time, to not necessarily, in my opinion, be 7 more of a biologist and chemist than an engineer, but 8 tied to a company as much as a technology. Now, of 8 in terms of classifications of technologies, the 9 course, they had their perspective on that, but my 9 transformative technology changes occurred by 10 perspective, you know, in approaching the study was 10 classification more than by provider in my judgment. 11 old technology versus new technology based on the 11 Q. Did you attempt to make any comparison 12 work that I had done in the past. And so I wasn't 12 between the composition of emissions between 13 really thinking of it that way -- 13 differing manufacturers of new diesel technology? 14 Q. Okay. 14 A. Not in this study. 15 A. -- although, you know, looking at some of 15 Q. Okay. 1 6 the dialogue, obviously they had some sensitivity to 1 6 A. I've been involved with previous studies 17 that issue. 17 that did some of that work. 18 Q. Okay. Let me -- let me follow up with you 18 Q. Okay. 19 on that point you just made. Previously you had 19 A. The previous one that I mentioned I was 20 stated that the composition of emissions can actually 20 involved with, and, you know, frankly, the 2 1 change between technologies; is that right? 2 1 differences were not all that substantive. 22 A. Sure. 22 Q. In that study that you were talking about 23 Q. And it's true, also, isn't it that the 23 before, did you use Volkswagen clean diesel TDI 2 4 composition of emissions can change between what 2 4 vehicles -- 2 5 we've generally -- or what you've generally 2 5 A. They were -- Page 71 P ag e 73 1 characterized as new diesel technology, so if you 1 Q. -- for comparison? 2 compare, for example, a BMW diesel, the composition 2 A. -- not among the vehicles, no. And it was 3 of that new diesel technology might differ from the 3 just -- and it was because they, to my understanding, 4 composition of a Volkswagen? 4 did not have any vehicles in the size class that we 5 MR. STEINBERG: Objection, vague. 5 were studying. Volkswagen is a little bit unique 6 A. Yeah, the difference is much different 6 because within the U.S. -- well, I guess before 7 between old technology and new diesel technology in 7 within the U.S. they were the only ones who had a 8 my -- in my experience, and even the -- new means -- 8 small diesel engine technology in this, you know, 1 9 could mean a lot of things, right? 9 to 2 liter range, as far as I understand. 10 Q. Sure. 10 Q. So just to be clear, there was never an 11 A. I mean, obviously it's not 2010 anymore. 11 attempt to compare the composition of emissions in a 12 Q. Right. 12 Volkswagen clean diesel TDI vehicle and any other new 13 A. And, frankly, I haven't really even paid 13 diesel technology? 14 attention so much as to the technology changes over 14 A. That's correct, I've never been involved 15 the past seven years or so. But the -- to your 15 with any study like that. There may have been, 16 point, sure, there might be differences between the 16 but... 17 emission composition of a Cummins new technology 17 Q. Okay. So if I could turn your attention to 18 engine and a VW and -- but, in general, from my 18 progress report 6. And it says -- there's some 19 experience the newer technology that is utilized -- 19 photos on the next page and then there says -- it 20 although an engine engineer would probably say, oh, 20 says figure -- "Figures 1-5 dyno lab and NHP exposure 21 these are important differences -- from my 21 chamber photos," do you see that? 22 perspective, the differences that you see comparing 22 MR. STEINBERG: Where are you at? Sorry. 2 3 an old technology prior, and this is going to be 23 MR. MELKERSEN: I'm at the second page of 24 especially pre-2000 compared with something that's 24 progress report number 6 dated February 2014. 25 going to be post-2007, you know, it's not -- you 25 A. Okay. Magna Legal Services 19 (Pages 70 to 73) P a g e 74 Page 76 1 Q. (By Mr. Melkersen) Are -- are these fair 1 monkeys? 2 representations of the lab where this testing was 2 A. Yeah, we would -- my recollection is -- for 3 done? 3 this study is we were drawing blood, and that we 4 A. Yes. 4 would also do a bronchiolar -- bronchoalveolar lavage 5 Q. And if you scroll -- scroll, we're not on a 5 which means that we would basically anesthetize and 6 computer, but if you flip two pages further, there's 6 intubate the animal, and then we would go in and do a 7 a page that looks like -- has these rolling carts. 7 couple of things. One is we would wash out the lung 8 A. Yup. 8 to try and see if there was any -- 9 Q. What are those? 9 (A discussion was held off the record.) 10 A. Those are inhalation exposure chambers. 10 A. See if there was any inflammatory cells. 11 Q. So explain to me exactly how this test 11 We also were doing blood testing to then look at 12 would work looking at these pictures from the page we 12 inflammatory cells in the blood, and then we were 13 just looked at with the dyno back to these exposure 13 also doing bronchial brushing where you would take 14 chambers. 14 this, like, brush and then just rub -- gently rub the 15 A. So the vehicle would come in onto the dyno, 15 side of the airway to be able to look and see if you 16 it would actually pull in and the wheels were on this 16 see any inflammatory changes. And then -- and then 17 part right here. You see those -- that black thing 17 the monkeys would return to housing. 18 right there? 18 Q. You say gently rub the inside of the 19 Q. Yeah. 19 airway. What do you mean? Like on the outside of 20 A. That is actually a -- imagine like a 20 the skin? 21 rolling dowel. 21 A. No, no, inside -- basically -- so we have a 22 Q. And just for the record, you just pointed 22 tube going inside the -- inside the -- just like when 2 3 at page 3 -- 2 3 you get intubated at a hospital, right. 24 A. Correct. 24 Q. Right. 25 Q. -- of the progress report number 6? 25 A. Same thing. And then we would go down into Page 75 P a g e 77 1 A. Yeah, so the vehicle would go on there and 1 the lung, we would wash out a lobe of the lung, and 2 you'd put your tires on there and that would 2 then we would just do a gentle brush of the side of 3 create -- that would either free spin or you would 3 the lung inside to be able to look at inflammatory 4 create resistance on that -- that turning part right 4 cells and see if we saw anything. 5 there on the chassis, and the emissions would then go 5 Q. How are the monkeys controlled during this 6 from the tailpipe up to a dilution tunnel that was 6 process? Are they asleep or -- 7 above that where we would add dilution air, and then 7 A. They're anesthetized. 8 that dilution air would be -- would transport to this 8 Q. I see. And are they anesthetized when 9 lab where you have, on page 4 of that report, figures 9 they're in these boxes being exposed to the diesel 10 4 and 5, a setup where you have some dilution lines 10 exhaust? 11 going to some carts. Within those carts you would 1 1 A. No, they're awake and, you know, live 12 put a monkey -- 12 during -- you know, around during -- you know, 13 Q. Okay. 13 typically what happens is during the exposure they'll 14 A. -- who during an exposure period, my 14 sit in there, we'll put out a TV, they'll watch 15 recollection was it was for a couple o f hours or 15 cartoons. 1 6 something like that, and then during that time we 1 6 Q. Gotcha. Do they ever try to escape or get 17 would monitor a concentration o f gases and particles 17 out? 18 and things like that within those chambers to be able 18 A. No. I mean, it's -- it's a pretty calm 19 to characterize both composition o f what the animals 1 9 thing. They like to watch cartoons. 20 were exposed to, as well as to the dilution rates. 2 0 Q. Where do you get these monkeys from? 2 1 Q. So -- so the monkeys, themselves, would be 2 1 A. There's vendors that sell them. I don't 22 inside o f these carts here that we see on page 4? 22 recall where we got these ones, but there's a number 23 A. That's correct. 2 3 of qualified vendors that provide primates. 2 4 Q. And so after they're exposed, what happens 2 4 Q. So these monkeys were bought specifically 2 5 next? Is there some testing that's done on the 2 5 for this project? Magna Legal Services 20 (Pages 74 to 77) Page 78 Page 80 1 A. That's my recollection. 1 looking at are transient inflammatory response. What 2 Q. Is it typical for monkeys to be used 2 I mean by transient inflammatory response is any time 3 basically one time for one project and then not be 3 that you, you know -- you go to a bar, you smoke a 4 used again? 4 cigarette, you do whatever and -- or you're exposed 5 A. That is one scenario. 5 to something, you know, you're going to have -- or 6 Q. Is that what happened in this case? 6 more commonly you're exposed to some sort of 7 A. I don't recall. 7 infectious agent, flu or something like that, your 8 Q. Do you know what happened to the monkeys 8 body's going to respond to that in some way. And it 9 after the testing was completed? 9 does that as -- in a response to be able to -- as 10 A. We didn't ship them to Volkswagen if that's 10 part of your immune response to be able to get rid of 11 what you're asking, so... They -- we -- I don't 11 that. 12 recall. My -- it was a non-terminal study, and so 12 In these particular studies, what we're 13 the -- so the animals were not euthanized to be able 13 showing is that -- especially when you're looking at 14 to look at any sort of more invasive responses. So 14 the inflammatory response, that a foreign substance 15 likely what happened was we ended up, you know, using 15 such as diesel exhaust in this case can cause an 16 them on some other studies is my guess. You know, 16 inflammatory response, which -- which shows that it's 17 because this is -- you know, I would characterize 17 not just breathing air, right, you're breathing 18 this as a -- a study that would not impair the 18 something that can cause an inflammatory response. 19 animals for use on further work because it was 19 Now, long-term sustained exposure to 20 basically just looking at mild inflammatory 20 something that is constantly creating inflammation 21 responses. 21 can have long-term biological effects. These 22 Q. Isn't it true that there are studies that 22 particular studies -- but if you have a short-term 23 show that exposure to diesel exhaust can result in 23 exposure, typically for something like this my 24 delayed onset of significant negative health impacts? 24 scientific assessment, based on, you know, studies 25 MR. STEINBERG: Objection, vague. 25 that we've done, is generally you're going to recover Page 79 Page 81 1 A. That's a hard question to answer. 1 from that particular treatment, and go back to 2 Delayed -- would you repeat that, please. 2 baseline. 3 Q. So let me ask it in a more simplistic form. 3 Q. Do you know if you-all actually used these 4 A. Okay. 4 monkeys in additional scientific research? 5 Q. So if I'm exposed to a significant amount 5 A. Like I said, I don't recall. 6 of diesel exhaust today, let's say from the old 6 Q. Okay. 7 diesel technology like the Ford F-250 -- 7 A. I really don't. I mean, we -- oftentimes, 8 A. Sure. 8 you know, we -- we do our best to minimize loss of 9 Q. -- like you-all used in the study -- 9 animal life, especially primates, so in the event 10 A. Sure. 10 that we can re-use animals for as many times as 11 Q. -- isn't, based on the research, there a 11 possible, we'll do that. 12 risk that a number of years down the line I might 12 Q. I saw where initially EUGT had requested 13 suffer certain adverse health effects from that? 13 use of male primates, and subsequently that was 14 MR. STEINBERG: Objection, vague. 14 changed to female primates. Do you know the 15 A. You know, that's a tough one. You know, 15 difference, why it is one would prefer to use males 16 I'll be honest with you, I mean, I would characterize 16 over females? 17 the responses from this study as transient 17 A. I don't recall the dialogue. In general 18 inflammatory responses. And so in order to have 18 males tend to -- so especially with primates, there's 19 potential long-term effects from something such as 19 take-offs in either direction. I don't recall that 20 this, I would say that it would have to be a 20 dialogue with them. The issue with females is that 21 longer -- long-term sustained exposures to high 21 hormonal changes in estrous cycle can actually impact 22 levels of materials, personally. 22 your inflammatory response and can create 23 And so for -- for these particular animals, 23 heterogeneity in the response of -- of the animals. 24 and in the clinical studies that were done before on 24 We've seen -- we've seen that. And so if there 25 healthy volunteers, the responses we're generally 25 are -- and so oftentimes when you're trying to study Magna Legal Services 21 (Pages 78 to 81) Page 82 Page 84 1 a specific sort of inflammatory or other response, 1 A. Yes. 2 many times you'll select males just because 2 Q. Okay. And if you look -- you recall this? 3 there's -- there's shown, from some of the previous 3 This document that we just looked at, this e-mail and 4 work that we've done, less heterogeneity, and 4 the comments that are behind it. 5 especially in a case like this where you're trying to 5 A. I'm sorry, will you repeat the question. 6 minimize the use of the number of animals because 6 Q. Do you recall this document? 7 primates are expensive and you -- you want to, you 7 A. Yes. 8 know, limit the amount of -- not only -- not only 8 Q. Okay. If you look at the comments from 9 that, it's a higher-order species so you try to limit 9 EUGT behind that, if you'll turn to the second page. 10 the amount of utilization of them as much as 10 A. Of this one? 11 possible. We did -- we wanted to keep the numbers 11 Q. The second page of the comments, yes. And 12 down. The problem with males, especially with 12 then it says that -- apparently there's two columns 13 primates, has to do with size, territorialness and 13 here, one that lists what the proposal was versus 14 other things that become problems. 14 what actually occurred. 15 Q. Aggression? 15 A. Sure. 16 A. Aggression and stuff like that. 16 Q. Proposal being the left column, what 17 Q. So would it be fair to say that females are 17 actually -- 18 easier to handle and are more passive when being 18 A. Right. 19 subjected to this type of testing? 19 Q. -- occurred on the right column; is that 20 A. I wouldn't say that necessarily. You know, 20 right? 21 I don't know that that's -- that would be the case. 21 A. Yup. 22 I mean, if you train them, whether it's males or 22 Q. And next to the monkey issue, it says "10 23 females, it's generally, if you condition them to the 23 male NHP" on the left side, and then it looks like 24 system -- and, again, whether it's males or females, 24 what was actually done is ten female NHP -- 25 generally you condition them to the chambers. We 25 A. Right. Page 83 Page 85 1 have a very active behavioral management group that 1 Q. -- on the right side, right? And it looks 2 works here that, you know, basically, works with all 2 like somebody from your organization -- this came to 3 animals to ensure that, A, they're being treated 3 me this way -- wrote "initially to save money, 4 properly, but, also, that their behavior is 4 communicated with client?". 5 well-adjusted, and so we don't really have a lot of 5 A. Right. 6 problems with aggressive behavior because of how well 6 Q. Do you -- do you know what -- whether 7 we treat the animals and because of our behavioral 7 Volkswagen requested you-all to use females as 8 management group usually. I mean, that's just my 8 opposed to males to save money? 9 general -- general experience. 9 A. No, that would have been something we did 10 Q. Okay. 10 internally, I think. 11 (Exhibit 11 marked.) 11 Q. Okay. 12 Q. (By Mr. Melkersen) I'm going to show you a 12 A. So just so you know what this is is, 13 document that I'm marking as Exhibit 11, and I'm just 13 basically, we had -- we had conducted the study over 14 going to ask you to turn with me in this document to 14 a period of time, then they kind of went back and 15 one particular page, maybe it will refresh your 15 were auditing against the original proposal, some of 16 recollection, then I'll -- we're going to come back 16 these things changed over time that were because of 17 to it later. So... 17 technical and/or financial reasons, and they were 18 MR. MELKERSEN: Yeah, it will be collective 18 coming back sort of disputing some of the things 19 11. 19 that -- that they perceived we didn't get done. 20 Q. (By Mr. Melkersen) This appears to be an 20 Q. Gotcha. 21 e-mail from Michael Spallek to you dated August the 21 A. So this was sort of, you know, debates 22 2nd, 2016, regarding various comments about the study 22 between us and them. 23 that you-all did, and the comments are attached 23 Q. Sure. We'll come back to that. 24 behind this and -- well, first of all, would you 24 A. Sure. 25 agree with me that's what this is? 25 Q. Is there a -- is there ever an issue with Magna Legal Services 22 (Pages 82 to 85) Page 86 Page 88 1 testing female monkeys to -- to determine whether or 1 operation"? 2 not they are pregnant before they're actually being 2 A. That's correct. 3 tested or is that something that is determined when 3 Q. Why was it that Mr. Liang needed to show 4 you-all study these animals? 4 you-all how to operate the vehicle? 5 A. You know, we -- we would -- I can't speak 5 A. I don't know. 6 to that. Generally the females are not housed with 6 Q. Look at progress report number 14. In 7 males unless they're in a breeding colony, so there 7 number 1, progress report number 14, it indicates 8 wouldn't be any issue here. And just looking at this 8 that "Mr. James Liang from VW of U.S.A. visited LRRI 9 sort of thing here, it's possible that what we were 9 on October 2, 2014. The objective was to review the 10 doing -- see, females are easier to get than males 10 procedures for the operation of the new diesel -- 11 because usually what happens is in these colonies 11 technology diesel emissions (NTDE) vehicle supplied 12 that they breed these is the males are used for -- as 12 by VW. NTDE vehicle was driven on the LRRI dyno and 13 breeders, and so the females are easier to get and so 13 aligned. Mr. Liang emphasized the importance of 14 they're typically less expensive, and so probably 14 correct alignment of the vehicle on the dyno. Once 15 that's why we ended up using the females. 15 aligned the vehicle was tested for partial FTP cycle 16 Q. Gotcha. If you would look back with me to 16 and, also, for complete FTP highway duty cycle." You 17 this set of progress reports, I think it was 17 see where it states that? 18 Exhibit 10 we were just looking at. Go back to that 18 A. Yes. 19 for a second. And specifically -- 19 Q. And is that your recollection as to what 20 A. Progress report 10 -- 20 occurred? 21 Q. Yes. 21 A. Yes. 22 A. -- or Exhibit 10? 22 Q. And is it true that Mr. Liang was the one 23 Q. Exhibit 10 -- 23 who established and set the cycles that would be used 24 A. Sure. 24 to test this vehicle? 25 Q. -- which is the progress reports. 25 MR. STEINBERG: Objection, misstates the Page 87 Page 89 1 A. Yup. 1 evidence. 2 Q. And if you will look with me on progress 2 A. The cycle is -- the FTP is the -- 3 report number 12. And number 4, do you agree with me 3 Q. Yes. 4 that that states that "LRRI is in contact with VW of 4 A. -- federal test procedure cycle? 5 America for the tentative delivery schedule of the 5 Q. Yes. 6 new technology diesel vehicle"? 6 A. So that cycle itself is -- was not dictated 7 A. That's correct. 7 by him, per se. I guess I don't understand the 8 Q. So you don't dispute that that's -- that 8 question. 9 Volkswagen Group of America is who provided you with 9 Q. That's not what I meant. It was a bad 10 the vehicle that was used in your testing, as it 10 question. Let me ask a different one. 11 related to new diesel technology? 11 A. Okay. 12 A. I don't dispute that that's what that says. 12 Q. So the decision to use the FTP cycle, was 13 Q. Okay. You don't have any different 13 that made by James Liang? 14 recollection that it came from somewhere else? 14 A. No. 15 A. No, I mean -- I guess -- yeah. No, we were 15 Q. Who made that decision? 16 working with the guys in America. I guess I'm not 16 A. I don't recall. That's a cycle we often 17 completely familiar with how VW segments itself in 17 use. I mean, that's -- you know, in previous 18 terms of VW of America versus wherever, but based on 18 studies, we had often used the FTP cycle. We've used 19 that it looks like there's a VW of America and that's 19 other cycles and things like that, but if you're 20 who was helping us. 20 going to sit down and write the study out right now, 21 Q. So then in progress report 13, look down in 21 that's -- that's probably what you would default to. 22 number 2. Do you agree with me it states that "LRRI 22 It's a common engine cycle that is used. That would 23 has received the new technology diesel vehicle (2013 23 be my guess. 24 VW Beetle). James Liang of VW of America will be 24 Q. Do you know, sitting here today, who 25 visiting LRRI on October 2nd to go over the vehicle 25 selected the cycle? Magna Legal Services 23 (Pages 86 to 89) Page 90 Page 92 1 A. No. No, I don't recall. I mean, the FT -- 1 A. I did not know that. 2 using the FTP cycle doesn't -- wouldn't surprise me. 2 Q. So -- all right, I'm done with that one. 3 I mean, we've done a lot -- a lot of our studies have 3 MR. STEINBERG: Mike, are we at a point 4 used that cycle. I don't recall if it was them or 4 where we can maybe take a two-minute, three-minute 5 us, or whoever. It's been a while. 5 break? 6 Q. Do you have an understanding about these 6 MR. MELKERSEN: Yeah. One more question 7 Volkswagen TDI clean diesel vehicles, about them 7 and then -- 8 producing differing emissions when they recognize 8 MR. STEINBERG: Sure. 9 that they're on a dyno being tested under the FTP 9 MR. MELKERSEN: Since we're on the subject. 10 cycle versus in another environment? 10 Q. This will be 12. 11 A. I don't know a lot about that, I'll be 11 (Exhibit 12 marked.) 12 honest with you. 12 Q. (By Mr. Melkersen) So this appears -- 13 Q. Okay. So if you look with me on progress 13 MR. STEINBERG: What is this marked? 14 report number 15. Take a look at number 2, states 14 Sorry. 15 "Based on the feedback from EUGT, the dilution system 15 MR. MELKERSEN: 12. 16 was set back to the settings used for old diesel -- 16 MR. PATRICK: 12. 17 for old technology diesel emissions vehicles for a 17 Q. (By Mr. Melkersen) So I've handed you 18 target mass concentration of 300," whatever that 18 what's been marked as Exhibit 12. Do you recognize 19 reading is there. 19 this? 20 A. Sure. 20 A. I recognize what it is. 21 Q. So you would agree with me, wouldn't you, 21 Q. It's true, isn't it, that this is a readout 22 that it was EUGT that had significant input on how 22 from the Mustang dyno that you-all used in the EUGT 23 the dilution settings were going to be done? 23 study? 24 A. Yeah. I mean, clear -- that's pretty 24 A. Appears to be. 25 clear, isn't it? 25 Q. And it appears that James Liang's name is Page 91 Page 93 1 Q. Just making sure. Because these things can 1 on here as customer. See that? 2 change, you know, obviously, after -- 2 A. That is true. 3 A. Yeah. Yeah, I mean, that appears to be the 3 Q. And then there is this graph at the bottom. 4 case. 4 Do you see that? 5 Q. Okay. And looks like in number 4, we were 5 A. Yes, I -- yes I do. 6 talking about this earlier, it states "A microcell 6 Q. Do you know what that is, the graph? 7 from AT&T was installed to transmit data from the 7 A. Yeah, that's a -- that's a typical graph 8 NTDE vehicle to Volkswagen of U.S.A." Do you see 8 of -- basically, the cycle on the engine tells you 9 that? 9 what to do. It's kind of like playing a video game. 10 A. That's correct. 10 Q. The FTP cycle? 11 Q. Do you know why it was that Volkswagen 11 A. The FTP cycle. Basically, when you're 12 U.S.A. needed to have realtime data about what was 12 running the cycle, there's an operator in the vehicle 13 happening with your test? 13 for these chassis dyna -- dynamometer experiments, 14 A. My -- it was basically connected to the 14 and they'll have a target basically that you're 15 vehicle and, you know, honestly we didn't have much 15 supposed to be at, because a driver manually controls 16 interaction with it. It was -- my understanding was 16 the speed basically by just pressing on the pedal, 17 that Mr. Liang wanted to be able to review the data 17 the gas pedal. And so you basically have a target 18 in realtime to make sure the vehicle was operating 18 performance in terms of speed over time, and the 19 appropriately. 19 driver in the vehicle is pressing on the pedal to be 20 Q. Did he ever tell you what he meant by 20 able to kind of match as you go over this, and this 21 appropriately? 21 plot basically is a representation of what occurred 22 A. No. 22 with the driver versus what the target is for 23 Q. Are you aware today that Mr. Liang has been 23 presumably the FTP cycle. 24 charged and pled guilty to multiple felonies relating 24 Q. And this appears to be something that was 25 to these diesel -- clean vehicle diesels? 25 set up initially on the dyno you used in your study Magna Legal Services 24 (Pages 90 to 93) P a g e 94 P ag e 96 1 by James Liang, true? 1 James Liang doing something to the dyno here at your 2 A. Yes. I mean, our guys don't know how to 2 facility at LRRI; is that right? 3 program cycles, so... 3 A. Correct. 4 Q. Okay. 4 Q. Okay. What I'm going to do next, it would 5 MR. MELKERSEN: We can take a break. 5 be easier to do this as a collective exhibit -- well, 6 (Recess was taken from 11:29 to 11:35 a.m.) 6 let's just go over them one at a time, it's not the 7 (Exhibit 13 marked.) 7 that big of a deal. 8 Q. (By Mr. Melkersen) Dr. McDonald, I'm going 8 (Exhibit 15 marked.) 9 to hand you what's been marked as Exhibit 13 to your 9 Q. (By Mr. Melkersen) So this is Exhibit 15 10 deposition. I've already talked about this before, 10 I've handed you. Would you agree with me that this 11 but this appears to be an e-mail, at the top -- 11 is the Beetle TDI supplied to you by Volkswagen Group 12 starting at the top, from Hammad to you dated 12 of America that you used in the study? 13 November 10, 2014, stating "Hi, Jake, James Liang 13 A. Correct. 14 from VW has requested to install a signal booster to 14 (Exhibit 16 marked.) 15 help transmit data from the vehicle to him," et 15 Q. (By Mr. Melkersen) I'll hand you 16 now. 1 6 cetera, et cetera. Do you recall this? 16 Would you agree with me that this is the truck, the 17 A. Yeah. 17 Ford F-250 that was used in your study? 18 Q. Okay. And I think as you previously 18 A. Correct. 19 stated, this system was, in fact, set up for 19 (Exhibit 17 marked.) 20 Mr. Liang? 20 Q. (By Mr. Melkersen) And 17, would you agree 2 1 A. Yes. 21 with me that this is a picture of -- of the two 22 Q. Is it unusual for a manufacturer who is not 22 vehicles used in your study sitting side by side? 23 a party to a contract regarding a study to require 23 A. Correct. 2 4 realtime monitoring of what is happening in your 24 2 5 study? 25 P a g e 95 P a g e 97 1 MR. STEINBERG: Objection, vague, calls for 1 (Exhibit 18 marked.) 2 speculation. 2 Q. (By Mr. Melkersen) And 18, would you agree 3 A. It's the first time that -- that -- that 3 with me that this is a picture of the piping coming 4 I've experienced that. 4 out of the exhaust tailpipe of the diesel TDI that 5 Q. In your entire career, this has never 5 you used in the study? 6 happened previously? 6 A. Agreed. 7 A. Correct. Now, we've had vendors come and 7 Q. And that would be where the exhaust would 8 make sure that the vehicle's installed and operating 8 flow up through that pipe and into the chambers where 9 properly before. We've had Cummins here, we've had 9 the monkeys would be located like we described 10 International here, we've had other companies that we 10 earlier; is that right? 11 were working with that would come and verify that 11 A. Correct. 12 the -- that everything's -- you know, because -- 12 MR. STEINBERG: Objection, misstates the 13 because we don't -- we are not an engineering 13 evidence. 14 organization, so sometimes we would have engineering 14 (A discussion was held off the record.) 15 support just to make sure that everything's, you 15 (Exhibit 19 marked.) 16 know, set up appropriately, but typically then it 16 Q. (By Mr. Melkersen) I've handed you what's 17 would be a hand-off. So this was the first time that 17 been marked as 19. Would you agree with me that's 18 we had monitoring and support during the study. 18 another picture of the piping from the tailpipe that 19 Q. Okay. 19 TDI used in the study? 20 (Exhibit 14 marked.) 20 A. Agreed. 21 Q. (By Mr. Melkersen) I've handed you what 21 (Exhibit 20 marked.) 22 I've marked as Exhibit 14. Do you recognize this? 22 Q. (By Mr. Melkersen) Handing you what's been 2 3 A. Well, I'm -- it appears to be the 2 3 marked as 20. Again, this is taken from the pictures 24 dynamometer, and that's James Liang there, I believe. 24 that you sent me. Would you agree with me that this 25 Q. All right, so this would be a picture of 25 is a picture of the odometer of the diesel TDI as Magna Legal Services 25 (Pages 94 to 97) Page 98 Page 100 1 it's being used in your study? 1 A. Yes, that is correct. 2 A. Appears to be. 2 Q. Why did you think this was crazy? 3 (Exhibit 21 marked.) 3 A. I'm trying to recall what I was thinking at 4 Q. (By Mr. Melkersen) 21, would you agree with 4 the time, whether or not it was crazy that our NOx 5 me that this appears to be a picture of the dyno that 5 were so low or crazy that Volkswagen was accused of 6 was used in the study? 6 doing this. Probably this, I was pretty shocked to 7 A. Yeah, I think that's the dyno control 7 find out about the whole issue here. So that was -- 8 system. 8 it seemed crazy to me that that was going -- well, I 9 Q. Okay. 9 don't know if it's proven or not, I mean, I have no 10 (Exhibit 22 marked.) 10 idea honestly. I remember watching at the time; you 11 Q. (By Mr. Melkersen) 22, would you agree with 11 know, like anything, I jumped to the conclusion that 12 me that this appears to be a picture of the control 12 it was true, right, because that's the American way, 13 chamber, I think you called it, where the monkeys 13 and I probably just felt that it was crazy that 14 were kept when they were exposed to the exhaust -- 14 Volkswagen was doing that. 15 A. Correct. 15 Q. Right. So here at the top, it looks like 16 Q. -- in the study? 16 an e-mail from Hammad, again back to you, and he 17 A. Correct. 17 says, "Less than 1 percent of OTDE in the tunnel. I 18 Q. So at some point -- when was it, if you 18 believe in our car that system was ON," with on in 19 recall, that you learned that Volkswagen was involved 19 capital letters, "by default." What's he saying 20 in diesel fraud? 20 here? 21 MR. STEINBERG: Objection, argumentative. 21 A. Hum. Interesting. I think he means the 22 A. I honestly -- whenever it came out in the 22 system -- he must mean the system that was causing -- 23 newspaper. I have no idea. 23 Q. Causing this to defeat emissions? 24 Q. Okay. And I want to show you a document 24 A. Causing this to defeat emissions, yeah -- 25 that is an e-mail exchange about that, I think. 25 Q. That is -- Page 99 Page 101 1 MR. MELKERSEN: What number are we up to? 1 A. -- in interpreting what he's saying. 2 25? 22? 23? 2 Q. That is, the system that was causing these 3 MR. PATRICK: 23. 3 TDI clean diesel vehicles to put out low NOx when on 4 (Exhibit 23 marked.) 4 a dyno -- 5 Q. (By Mr. Melkersen) So I'm handing you 5 A. Yeah. 6 what's been marked as Exhibit 23 to your deposition. 6 Q. -- and a different measurement of NOx when 7 Just take a minute and familiarize yourself with 7 they were being actually driven on the road? 8 this. 8 A. That's my interpretation of what Hammad was 9 A. Okay. 9 saying, yeah. 10 Q. Do you remember this exchange? 10 Q. And the -- would you agree that these 11 A. Yes, I do. 11 numbers here listed for the NOx and NO2 and NO were 12 Q. Okay, and it appears what we're looking at 12 relatively low? 13 is a series of e-mails back and forth between you and 13 A. Yeah. They didn't shock me, though, you 14 your colleagues that occurred on September 18, 2015, 14 know, because I expected them to be lower than OTDE 15 when you-all first discover that there was this 15 anyways, but they were low. You know, I was -- I 16 accusation against Volkswagen of evading emissions 16 was -- I had -- you know, because we had done a -- I 17 laws; is that right? 17 mentioned earlier that we had done a previous study 18 A. Correct. 18 that was using -- but that was, to be fair, using 19 Q. And it looks like that somebody by the name 19 2007 technology, and in that study the -- the new 20 of Jeremy Brower sends an e-mail to you and a number 20 technology diesel exhaust had low levels of 21 of other people that's -- on September 18, 2015, that 21 emissions, but the NOx wasn't -- the NOx reduction 22 says, "That is crazy. NOx in our study were pretty 22 technology didn't come in 'til 2010, and so that -- I 23 normal, right?" 23 didn't know -- I didn't have -- I didn't know what to 24 And you respond same day, "Yep, they were 24 expect in terms of, you know, the NOx levels to be 25 low. This seems crazy." Is that right? 25 seen from NTDE with 2000 -- with the NOx emission Magna Legal Services 26 (Pages 98 to 101) Page 102 Page 104 1 reduction technology, so I didn't really have a 1 time, you know, just looking through this, I may or 2 basis. I mean, low -- it was low for sure. 2 may not have really even thought about the 3 Q. How -- when you found out about this, I 3 implications, but, of course, if the -- if the 4 mean, you've been in this business a long time and I 4 emissions were reduced, you're going to get 5 assume have a very good reputation; is that right? 5 potentially a reduced response because all toxicology 6 A. I'd like to think so. 6 assessments are a dose response basically, right? So 7 Q. And I would also assume that, you know, 7 if you reduce those emissions by artificially -- or 8 your reputation, kind of like lawyers, is important 8 by other means, it would have an impact on the study. 9 for purposes of being able to generate new business, 9 Q. One plus one equals two? 10 people have to be able to trust your results -- 10 A. Exactly. 11 A. Sure. 11 Q. So did you-all attempt to rerun these tests 12 Q. -- this type of thing, right? 12 when you found out that the emissions that these 13 A. Sure. 13 Volkswagens were emitting were not true, at least as 14 Q. So I can only imagine that when you found 14 far as comparing them to what they actually would do 15 out about this, this would have been something that 15 on the road? 1 6 would have been very disturbing to you, I assume? 16 A. No. I mean, by the time -- you know, I 17 A. Sure, yeah. 17 guess -- I'll be honest with you, by the time this 18 Q. And is that because you may have been put 18 had come through in 2015, the study was over, I was 19 in a compromised position with respect to the results 19 on to other things and trying to just be done with 20 of your test, unknowingly? 20 it. I didn't really think about the implication at 2 1 A. Yeah. I'll be honest with you, I -- I was 21 the time, and I didn't really think about -- you 22 concerned about the allegations against Volkswagen 22 know, I don't recall actually even reflecting on what 23 and the fact that, you know, based on these we 2 3 Hammad said there. I didn't really make that 2 4 presumed them to be true, and I was concerned that -- 24 connection. 2 5 that they had made what I would consider a poor 25 Q. Did anybody from Volkswagen call you -- Page 103 Page 105 1 judgment call in what they were doing. 1 when I say "you," I mean LRRI -- notify you in any 2 I'll be honest with you, at the time, I 2 way and say, gosh, you know, in light of what we've 3 didn't really think -- and now that we're going 3 just admitted to with this fraud, please don't 4 through this -- that -- that what we were doing for 4 publish any portion of this report? 5 their on-road testing and things like that was 5 A. No, nobody contacted us. 6 directly impacting the studies we were doing, 6 Q. In fact, the contrary is true, isn't it? 7 although in hindsight, may -- that may or may not 7 Isn't it true that Volkswagen still, after this point 8 have been true, I don't know. 8 in time, that is, after September 18, 2015, pushed 9 Q. Well, it's true, isn't it, that if you -- 9 you to actually publish your report? 10 that the old diesel technology had significantly 10 A. Yeah, I mean, they wanted to get that -- 11 higher NOx readings than the new diesel technology? 11 those results out. 12 A. That -- that would have been the case even 12 Q. In fact, it's true, isn't it, that 13 if we were using 2007 technology. Which -- which, 13 Volkswagen attempted to apply pressure against LRRI 14 you know, just for clarification, 2010 was when -- 14 with respect to the withholding of your last payment 15 Q. Go ahead, sorry. 15 unless you-all would publish this report? 1 6 A. 2010 was when the additional NOx reduction 16 MR. STEINBERG: Objection, vague. 17 regulations kicked in. 17 A. To some extent, I guess that's true. 18 Q. Understood. But it's true, isn't it, that 18 Q. And it's true, isn't it, that that pressure 19 if you had significantly higher NOx readings in the 19 has continued even into the summer of 2017? 20 tunnel, that is, if these vehicles were not actually 20 A. That's correct, because we have an 2 1 in this cheating mode, that that could have impacted 21 outstanding payment and an outstanding deliverable of 22 your study? 22 getting the report out. 23 MR. STEINBERG: Objection, calls for 2 3 Q. Even with the fraudulent emissions, it's 2 4 speculation. You can answer. 24 true, isn't it, that at least initially some of the 2 5 A. I mean, sure. I mean -- and I guess at the 25 reports that you-all put out about this study, that Magna Legal Services (Pages 102 to 105) Page 106 Page 108 1 the results was not exactly what Volkswagen wanted? 1 Q. Yes. 2 A. That's correct, some of the results didn't 2 A. Man. 3 make a lot of sense from their perspective. Even 3 Q. And paid a $2.3 million fine. 4 from my perspective. I mean, with the -- you know, 4 A. Relative to this? 5 especially considering if this was true. I hadn't 5 Q. Um-hum. And there are two people in jail 6 even -- honestly, I hadn't, you know -- I hadn't put 6 now for it, so... 7 it together, to be honest, because this was so 7 A. Oh, my God, I didn't even realize that. 8 removed from me. By the time this was on, I was kind 8 (Exhibit 24 marked.) 9 of on to other things, especially considering if the 9 Q. (By Mr. Melkersen) This is Exhibit 24 I'm 10 fact that this is true, if -- if this defeating item 10 handing you. 11 was on, which -- which reduced the emissions further, 11 A. I feel like a chump. 12 it would not make sense. And looking back at the 12 Q. Not a chimp, a chump? 13 results, as you'll probably see in the dialogue, I 13 A. Right. 14 kind of looked at some of the things in the way we 14 Q. Got it. So I've handed you 24, what's been 15 did the study and found a couple of flaws in how we 15 marked as Exhibit 24. This appears to be, if you 16 did the study which made me -- which made me question 16 would agree with me, a chain of e-mails back and 17 the data because it didn't make a lot of sense to me. 17 forth dated October 7, 2015, about some preliminary 18 Q. Sitting here today now that we've gone over 18 findings to your study. True? 19 this, and you -- if you were to assume that these 19 A. Yeah. 20 allegations against Volkswagen are true, would you 20 Q. And it looks like, if you look two pages 21 agree with me that it would not be a good idea to 21 back, past the e-mails, there is a submission that 22 publish that report, your report? 22 has been done by Jeremy Brower, it lists you as one 23 A. Yeah, I -- I wouldn't publish it. 23 of the authors -- 24 Q. And that's because it would be misleading, 24 A. Sure. 25 true? 25 Q. -- about the results of your testing as it Page 107 Page 109 1 A. Correct. Well, yeah, yeah. I mean, 1 relates to adverse health effects of environmental 2 especially with -- with this. I hadn't thought -- I 2 exposure to standard diesel -- 3 didn't really even thought about what Hammad had said 3 A. When did this happen? When did -- when did 4 in this context, but -- and at this point with the 4 this -- off the record, I guess. 5 uncertainty with it, I wouldn't publish it. 5 Q. No, no. 6 In addition, there were some issues with 6 A. When did -- when did they plead guilty to 7 the study anyways in terms of the -- some of the -- 7 this associated with this in particular? 8 the way we did some of the experiment that impacted 8 Q. January of 2016. 9 the results that made it difficult to interpret. But 9 A. So they're pushing me to publish results 10 that coupled to this, basically, is a no-go. 10 based on -- 11 Q. It's true, isn't it, that even with -- 11 MR. STEINBERG: That's incorrect. 12 well, I think I just asked you this. You saw some 12 A. I mean -- I'm just trying to understand 13 inflammatory responses even with the -- using the 13 this. 14 fraudulent emissions from the TDI clean diesel 14 Q. Well, the plea was -- the plea -- the plea 15 vehicle? Is that right? 15 was accepted by the Court on March 10, 2016. 16 MR. STEINBERG: Objection, argumentative -- 16 A. Relative to this? And the -- 17 A. Yeah. 17 Q. Yes. 18 MR. STEINBERG: -- misstates testimony. 18 A. -- people that are asking -- 19 Q. Well, let me just show you -- 19 (Simultaneous crosstalk.) 20 A. Are we -- are we confident -- I don't know 20 MR. STEINBERG: Let's just have questions 21 if this is true or not. 21 and answers. 22 Q. It is, they've admitted it -- 22 A. I'll shut up. I'm sorry. I'm just trying 23 A. That this was fraud -- that this was -- 23 to understand the context of it, so... 24 Q. -- and pled guilty. 24 Q. Yeah. So if -- if you look here on -- this 25 A. Really? 25 is October 7, 2015. It looks like here in the front Magna Legal Services (Pages 106 to 109) Page 110 Page 112 1 in the e-mails it states that -- from Melanie 1 A. I -- I honestly don't know. 2 Doyle-Eisele, do you know who that is? 2 (Exhibit 26 marked.) 3 A. Yeah, she works for me. 3 Q. (By Mr. Melkersen) I'm handing you what's 4 Q. Okay. She suggests "You may want to refine 4 been marked as Exhibit 26. This appears to be some 5 the final statement and remove the word 'great' in 5 e-mails back and forth between you and Jane Maestas. 6 front of inflammation. You can soften the overall 6 Do you agree with me on that? 7 statement since the data is still coming in stating 7 A. Yup. 8 that inflammation was observed after both exposures." 8 Q. And on August 17, 2016, it appears that you 9 And I assume, and you tell me if I'm wrong, that she 9 wrote, "We submitted this final report several months 10 is referring to, in this draft report that was being 10 ago, and they have disputed it because it did not 11 done by Jeremy Brower, in the last line he says 11 meet their expectations in terms of outcome." Is 12 "Sample analysis continues, but contrary to the 12 that right? 13 hypothesis, new technology diesel appears to have 13 A. That is correct. 14 induced great inflammation by measurement of several 14 Q. Okay, can you elaborate on that? What does 15 key parameters." 15 that mean exactly? 16 A. Yeah, I -- I always avoid the term -- the 16 A. Well, I think it goes back to a couple of 17 utilization of sensationalistic language in 17 things. One is Exhibit -- 18 scientific reporting. 18 Q. 11? 19 Q. I can understand that and would agree that 19 A. Whatever this one was. 20 that's probably a good idea. 20 Q. 11. 21 A. Great is a nonquantitative term. 21 A. -- Exhibit 11 in that there were some 22 Q. Right, right. And -- but that's true, 22 things that they expected that we were doing that we 23 isn't it, that even with the fraudulent emissions, 23 were not able to do because of logistics and funding 24 that the inflammation response was not what was 24 issues. I'd have to look back at this and -- let me 25 expected? 25 refresh my memory. Page 111 Page 113 1 MR. STEINBERG: Objection, argumentative, 1 (A discussion was held off the record.) 2 misstates the testimony, misstates the evidence. 2 A. So I think it's a combination of things. 3 A. That was correct in their initial 3 One is that -- that they were expecting some end 4 assessment of this -- of this work, and it may or may 4 points to be analyzed, then logistically they weren't 5 not be the case in -- because what -- what -- what -- 5 able to be done, and the other, I think, also, is 6 as you may go through the evidence, originally we 6 that in some -- some of the outcome, we saw 7 were seeing a lot of inflammation across the board. 7 inflammation across groups, including in control 8 Afterwards I think we -- we think that some of that 8 groups and in the old technology group, and that was 9 information was an artifact of how we did some of the 9 confusing to them, and me, as well. Again, my 10 work, though, so... It's hard -- it's honestly hard 10 hypothesis would have been that we wouldn't have seen 11 for me to tell. 11 much, especially if the defeat was on. 12 Q. Okay. 12 Q (By Mr. Melkersen) Right. Which as far as 13 (A discussion was held off the record.) 13 you know, it was on when this testing occurred? 14 (Exhibit 25 marked.) 14 MR. STEINBERG: Objection, calls for 15 Q. (By Mr. Melkersen) So I'm giving you what's 15 speculation. 16 been marked as Exhibit -- 16 A. I know as much as I've learned this -- 17 A. Are we on the record or off the record? 17 Q. Okay. 18 Q. Yeah, we're on the record. We'll talk 18 A. -- morning during these discussions. 19 after. 19 Q. Okay. 20 So I'm giving you what's been marked as 20 A. You know, it's -- which, based on Hammad's 21 Exhibit 25. This appears to be an e-mail from 21 e-mail, suggests that -- I presume he's talking about 22 Mr. Brower again, talking about a draft report. And 22 the defeat that was described in that article. 23 he states here, "I was trying to soften the blow from 23 Q. Yes. 24 the results of the study without saying that it was a 24 A. Which I didn't even think of or pay 25 bad study." Do you know what he means by that? 25 attention to at the time. I see a lot of e-mails, Magna Legal Services (Pages 110 to 113) Page 114 Page 116 1 and so I didn't really think about it. 1 question is, Dr. McDonald, is you recognize this 2 Q. Okay. 2 e-mail? 3 A. But if that's the case, then it's annoying, 3 A. Yes, sir. 4 to say the least. 4 Q. Okay. This is an e-mail you sent? 5 Q. If that's the case, would you agree with me 5 A. Yes, it is. 6 that you were used? 6 Q. Okay. And as I understand it, attached to 7 MR. STEINBERG: Objection, argumentative, 7 this were two documents that I've also just handed to 8 vague, ambiguous. 8 you. Is that right? 9 Q. Do you understand my question? 9 A. Yes. 10 A. One could lead to that -- one could come to 10 Q. And it looks like on June 30, 2017, you had 11 that conclusion if that were true. 11 initially sent these reports to Stuart Johnson and 12 Q. I'm going to give you -- are we at 26? 26, 12 Michael Spallek. Is that right? 13 I think. 13 A. Correct. 14 (Exhibit 27 marked.) 14 Q. Why were you sending these reports to 15 Q. (By Mr. Melkersen) So what you're going to 15 Stuart Johnson? 16 see with this 26 -- I'll hand it to you here. 16 A. Because Michael told me to. 17 MR. PATRICK: Exhibit 26 was the August 17, 17 Q. Was Stuart Johnson involved in the 18 2016, e-mail. So is this a new one? 18 discussions that you were talking about earlier of 19 MR. STEINBERG: That's right. 19 Volkswagen attempting to get you to publish the 20 MR. MELKERSEN: Okay, 27, then. Sorry. 20 results of your study? 21 Thank you. 21 A. I don't recall. 22 Q. (By Mr. Melkersen) This is collective 27, 22 Q. We're going to come back to that in a 23 and I'll show you is that this basically -- or ask 23 second. It looks like at the bottom of your e-mail 24 you, you agree with me this is an e-mail from you 24 dated August 11, 2017, to Stuart and Michael, you 25 to -- 25 state, "These are the data I will submit to Page 115 Page 117 1 MR. STEINBERG: Can I have a copy of it? 1 Inhalation Toxicology in a paper next month. We hope 2 MR. MELKERSEN: Yeah, sorry. 2 that you can submit the final $75,000 payment." 3 Q. (By Mr. Melkersen) And you'll see here at 3 A. Sure. 4 the top that it says my name. That was simply 4 Q. And so, again, it appears that from 5 because you sent it to me as a Microsoft office file 5 Volkswagen's perspective, and you tell me if I'm 6 and I had to open it on my Outlook -- 6 wrong, that they are attempting to encourage you to 7 A. Right. 7 publish the results of this study in order to get 8 Q. -- to print it, but the e-mail below where 8 paid? 9 it says my name and down should be accurate, but it 9 A. Correct. And it's, basically, they were 10 appears -- 10 using that as a milestone delivery for the report. 11 MR. STEINBERG: I'm not seeing that. 11 Now, because EUGT has since dissolved, they're -- I 12 Sorry, Michael, where are you -- 12 think they were basically going to just tie it to 13 MR. MELKERSEN: Front page, the e-mail 13 this report, so... 14 right there. 14 Q. Do you know why EUGT dissolved? 15 MR. STEINBERG: I see Jacob McDonald -- 15 A. No clue. I mean, they just told me it was 16 MR. MELKERSEN: Yeah, above that. 16 dissolving. I had no idea why. 17 MR. STEINBERG: -- Margaret Dunbar, 17 Q. Based on our discussions today and what 18 Rubin -- oh, I see, just that. 18 you've learned during the course of this deposition, 19 MR. MELKERSEN: Yeah. 19 do you plan on publishing this report, as indicated 20 MR. STEINBERG: Okay. 20 in your e-mail? 21 MR. MELKERSEN: That wasn't on the 21 A. No. 22 original -- my -- I was just pointing out my name is 22 Q. No? 23 not on the original document, it was just because I 23 A. No. 24 opened it with Outlook to be able to read it. 24 Q. Would that be unethical to do that? 25 Q. (By Mr. Melkersen) But anyway what my 25 A. Yeah. Magna Legal Services (Pages 114 to 117) Page 118 Page 120 1 Q. Perhaps even illegal to do it? 1 Q. And this related to old technology diesel; 2 A. Well -- 2 is that right? 3 MR. STEINBERG: Objection. 3 A. Correct. 4 A. I -- yeah. I don't -- I don't -- honestly, 4 Q. In this study, why were they studying 5 all I know is what I've learned this morning. 5 particulate matter, or PM as it's known in this 6 Whether or not it was illegal or not or whatever, I 6 study? 7 want no part of it. That's all -- especially if what 7 A. Because they were oversimplifying the 8 you said is true relative to them actually 8 mixture of diesel exhaust, which is commonly done. 9 manipulating the results. Obviously, I have no 9 So, basically, they're using that as a metric to 10 interest in that. 10 define exposure, but everything else was there, too, 11 MR. STEINBERG: That's all I have. Do you 11 presumably, the gases, NOx, carbon monoxide, et 12 have anything further? 12 cetera. 13 MR. PATRICK: No. Pass the witness. 13 Q. Okay. And so the particulate matter that 14 MR. STEINBERG: Okay, let's take a break, 14 is a part of diesel exhaust, has that changed in -- 15 let me switch chairs, and we'll start. 15 in old diesel exhaust, has that changed in new diesel 16 (Recess was taken from 12:10 to 12:17 p.m.) 1 6 exhaust? 17 EXAMINATION 17 A. Yes. 18 BY MR. STEINBERG: 18 Q. Is it reduced? 19 Q. Good afternoon, Dr. McDonald. My name is 19 A. Yes. 20 Michael Steinberg and I represent Volkswagen in these 20 Q. Substantially? 21 proceedings. Have we ever met before? 2 1 A. Yes. 22 A. Not that I recall. 22 Q. Can you tell the jury by orders of 2 3 Q. Have we ever talked? 23 magnitude the amount of particulate matter present in 24 A. Not that I recall. 2 4 old technology -- the old diesel technology versus 25 Q. I'm here to ask you today some questions 2 5 the new diesel technology? Page 119 Page 121 1 around a study you performed and the work you 1 A. It's significant. 2 performed during the course of your career, including 2 Q. Would it be 1 percent of what was there in 3 just some general questions around diesel exhaust. 3 the past? 5 percent of what was there -- 4 Diesel exhaust isn't just a single item, is it, it's 4 A. It would be -- 5 comprised of constituent parts? 5 Q. -- in the past? 6 A. Correct. 6 A. -- 1 percent or less of what was there in 7 Q. And what are the constituent parts that, in 7 the past. 8 your experience in testing diesels, has been the 8 Q. And so is that a significant reduction for 9 greatest concern? 9 purposes of health reasons? 10 MR. MELKERSEN: Object to the form. 10 A. Yes, I would say that the diesel 11 A. It's -- it's difficult to say because we've 11 engineering community has made substantive 12 done a lot of studies. It depends on what you're 12 engineering controls and advances over the past 30 13 interested in. If you're interested in cancer, it's 13 years that I would feel have a positive impact on 14 probably particulate matter. If you're interested in 14 public health. 15 cardiovascular/neurovascular inflammatory responses 15 Q. And is one of those advances the reduction 1 6 and things like that, it's -- the jury's still out. 16 of particulate matter? 17 Q. Okay. You were shown a bunch of studies at 17 A. Yes. 18 the beginning of today's testimony, your deposition. 18 Q. And are there -- is it particulate matter 19 Can I get you to look at Exhibit 2. So this is a 19 that's the portion of diesel exhaust that was 20 study -- this is one of the studies that the 20 identified by the World Health Organization as having 2 1 plaintiff showed you in connection with your 21 a link with cancer? 22 testimony -- 22 A. I don't recall, but likely. 23 A. Yup. 2 3 Q. Okay. It wasn't the gaseous elements, 2 4 Q. -- correct? 24 which would include NOx, that caused that warning by 2 5 A. Yup. 25 the World Health Organization, correct? Magna Legal Services (Pages 118 to 121) Page 122 Page 124 1 A. Unlikely. I mean, the gaseous components, 1 the past because that's the evidence that we had and 2 as far as I can tell, in my opinion based on 2 up until that point the majority of the scientific 3 scientific evidence, likely don't have too much to do 3 evidence that was available to us was -- was based on 4 with the cancer findings. 4 older technology. You know, we were in a tight spot 5 Q. Okay. And - 5 because of just the timing of it. We -- you know, we 6 MR. MELKERSEN: Objection -- belated, but 6 wanted -- and I believed, and I think some of the 7 objection to that question. Go ahead. 7 external reviewers believed, that it was important to 8 Q. And you participated -- I think you were a 8 at least acknowledge the new technology changes that 9 little modest. You participated in that IARC review 9 had occurred, because what happens in the press, what 10 of the literature; is that right? 10 happens in the -- and even amongst scientists and in 11 A. That -- that is correct. 11 the scientific literature, that people oversimplify 12 Q. You were asked to be a participant? 12 diesel exhaust as being a thing. And, really, 13 A. That's correct. 13 it's -- it's a number of potential things depending 14 Q. And it was -- and as a participant, would 14 on the combustion technology and things like that. 15 you review all of the studies that were being -- that 15 Ultimately, diesel is just a fuel that represents a 16 had been conducted to evaluate what were the various 16 certain fraction of the petroleum distillate. The 17 issues associated with diesel exhaust? 17 exhaust itself, basically, just depends on the 18 A. That's correct. 18 technology that's being used. 19 Q. And can you tell the jury about the effort 19 Q. Now, the amount of exhaust that comes out 20 that you undertook to understand the old exhaust 2 0 of an exhaust pipe under the new technology, or even 21 findings and why you thought they were no longer 21 under the old technology, on its own was that enough 2 2 applicable in new exhaust, new diesel exhaust. 22 to evidence a -- just, you know, for -- strike that, 2 3 MR. MELKERSEN: Object to form. 23 let me start again. 24 A. Well, to be honest, at the time, there 2 4 If I'm walking on the street near a crowded 2 5 really wasn't very much literature on that. I had 25 intersection, was the exposures that were present Page 123 Page 125 1 conducted probably one of only a couple of studies, 1 from diesel exhaust enough to cause me, you know, 2 and I had conducted a couple of them, evaluating new 2 some harm in my lungs from breathing that air? 3 technology compared to the old technology. In both 3 MR. MELKERSEN: Object to the form. 4 cases, we showed that the new technology advances 4 A. You know, it's difficult to make that 5 reduced the biological responses that we were 5 assessment, you know, because it really depends on a 6 evaluating at those times. So I think that, you 6 lot of factors. With -- there's been a number of 7 know, the majority of the IARC review was focused on 7 studies where people have done, you know, bystander 8 old technology, which was a point of contention for 8 studies, looking at things like tollbooth operators 9 many in that -- that they felt that at the time of 9 or people riding a bike on a street and things like 10 the review, that it was kind of old news to some 10 that, and there's -- there have been observed 11 extent in that the technology, especially in the 11 physiologic response to exposures to environmental 12 western world, had -- had evolved. Now, granted, 12 air pollution, including diesel exhaust, and in those 13 different countries, they're still using old 13 cases usually they're -- they're -- they're transient 14 technology, but that's beside the point. 14 responses because of the nature of the study. 15 Q. Right, the possibility existed with new 15 Oftentimes you can't link an exposure walking down 16 technologies to reduce particulate matter, NOx, 16 the street or standing on the street corner with a 17 carbon monoxide, carbon dioxide, volatile organic 17 long-term biological response. The only thing you 18 compounds, all of those, correct? 18 can really study is a short-term effect, and what the 19 A. Correct. 19 long-term consequences of that are is kind of 2 0 Q. And that was one of your bones of 2 0 conjecture. 21 contention with the fellow scientists at IR was that 21 Q. So in connection with evaluations of diesel 22 they were focusing on the past, not the current 22 exhaust in a -- in a situation where you're at an 23 technology? 23 intersection or you're at a tollbooth or you're in a 2 4 A. And I -- and I -- and I -- yeah, I don't 2 4 mine, those -- those studies aren't able to discern 25 know that I necessarily disagreed with focusing on 25 the contributions of specific elements of the diesel Magna Legal Services (Pages 122 to 125) Page 126 Page 128 1 exhaust? 1 concentration in any of the work you've done? 2 A. That -- that's generally true. I mean, the 2 A. Yeah. So when we did our study with the 3 mine is the best case scenario because you have a 3 Health Effects Institute, there was NOx present 4 controlled environment, very high levels of exposure, 4 because we were using 2007 technology which was prior 5 typically over a longer period of time, and those 5 to the -- the additional NOx controls. I don't 6 studies, the mining studies, I would say, are the -- 6 remember off the top of my head what the exact NOx 7 probably the most relevant to the risk assessment 7 levels were, but it was in the part per million range 8 relative to diesel exhaust, you know, and sort of 8 for sure. 9 complementing the nonclinical studies. 9 Q. Okay. In connection with the particle 10 But in each case, I'm not aware -- well, 10 amounts that you were -- that you would analyze in a 11 there's been very little evidence on the clinical 11 parts per million ratio, what type -- what was the -- 12 side that has shown that a response is -- whether 12 in the older technology what would be the range of 13 it's linked to particles or gases. We've done some 13 parts per million let's say looking at the 300 -- 14 studies where we looked at animal studies where we 14 A. The particle concentrations? 15 tried to fraction out the emissions and look at 15 Q. Yeah, the particle concentrations. 16 certain constituents and -- and in those studies we 16 A. We generally don't report those in parts 17 have shown that it's -- they're -- it's complicated. 17 per million, we report that as mass per unit of 18 And sometimes it depends on the biological 18 volume in a different way, which is typically 19 response you're looking at, but in a broad stroke you 19 microgram per cubic meter or -- or in the older 20 can't just say biological effects are related to 20 cases, milligram per cubic meter. So the old studies 21 particles or biological effects are related to gases. 21 where we were looking at cancer, for example -- 22 In fact, we found that -- that -- that both of them 22 Q. Yes. 23 can play an important role and both of them, on their 23 A. -- it was -- we didn't -- we only saw a 24 own, can have biological responses, including when we 24 cancer when you got typically in the 3500 to 25 remove the particles and look just at the gases. 25 7,000 micrograms per cubic meter of particles, and Page 127 Page 129 1 Q. When you look at exposures that cause a 1 that's over a lifetime of exposures. 2 transient amount on the gaseous side, how many parts 2 Q. And in this study, the study you did in 3 per million are you talking about? 3 this case, the maximum exposures was at 4 A. When we -- when we've done controlled 4 300 micrograms per meters cubed, correct? 5 studies in the laboratory, it's been significantly 5 A. That was with the older technology diesel. 6 higher than what's been -- what would be -- what you 6 You could never get that level with the new 7 would find in the ambient air. So typically, for 7 technology. 8 example, your -- our NOx concentrations, for example, 8 Q. That's fine, and with the new technology 9 will range anywhere from 5 to 50 part per million, 9 diesel, when you were -- when you were at a 300 10 which for context, in a busy area, you know, even in 10 microgram per square meter amount, right, when you 11 a traffic tunnel or something like that, you'd be 11 took that -- when you set the dilution to that -- 12 hard-pressed to see probably about .3 parts per 12 A. Right. 13 million. That would be a human exposure now. In a 13 Q. -- for the older technology, what was the 14 mine, you might see a PPM or two, or something like 14 newer technology showing up as? 15 that, but it just depends on the situation. 15 A. I'd have to look. It was low, but I'd have 16 Q. So the situations that you've looked at 16 to look back at the data. It was probably less than 17 where there was a transient amount were in the range 17 5 is my guess, but I -- I don't recall. 18 of concentrations of NOx at 5 to 50 parts per 18 Q. To the best of your recollection, if the 19 million? 19 300 was the old technology, the new technology had 20 A. Yeah, I mean, we've gone lower than that, 20 brought that down to under 5? 21 but typically -- you know, long story short, 21 MR. MELKERSEN: Object to the form. 22 typically we're using higher concentrations than what 22 A. Let me just look it up. 23 you're going to see in an ambient environment. 23 Q. Okay, please. I'd rather be accurate. 24 Q. Okay. In any of the studies under the new 24 A. Yeah. That would be my guess off the top 25 technology, have you looked at NOx in any 25 of my head, but it's better to actually look at the Magna Legal Services (Pages 126 to 129) Page 130 Page 132 1 data. 1 would explain a spike like that. 2 Q. And you're looking through, just so we're 2 Q. Okay. And during a regeneration event, 3 all carrying along, Exhibit 27? 3 what happens? 4 A. Yeah, it was -- our average was -- I was -- 4 A. Well, basically, they -- they -- it -- it 5 I misspoke, our average was about between 5 and 5 adds -- it changes the chemistry at the trap itself, 6 10 micrograms per cubic meter. 6 heats it and -- and allows you to basically burn off 7 Q. And can you tell me where -- where you got 7 the accumulation of -- of any soot or other material 8 that data from, from Exhibit 27. 8 that's accumulating on the trap, and in order to get 9 A. From the study report. 9 rid of that and cleanse the trap so that it keeps its 10 Q. Is that Figure 25 or is that a different -- 10 efficiency and keeps operating effectively without 11 A. It was a table, Table 1. 11 plugging. 12 Q. Okay. 12 Q. So particulate matter, that's soot, 13 MR. MELKERSEN: Of Exhibit 25? 13 correct? 14 THE WITNESS: Exhibit -- 14 A. Correct. 15 MR. STEINBERG: 27. 15 Q. And turn -- let's go to Exhibit 23. 16 THE WITNESS: -- 27. 16 A. What did you say now? 17 Q (By Mr. Steinberg) And that's in Table 1 17 Q. This was -- Exhibit 23, which was the chart 18 and you're reading the average numbers from -- for 18 that was shown to you at almost the very end of this 19 9.7 and 2.8? 19 deposition, end of -- 20 A. Yeah. 20 A. Can I just see yours? 21 Q. And then two chambers from the NTDE column? 21 Q. Yeah. You'll see my notes on it, but... 22 A. Right. 22 A. Sure. 23 Q. And that's an average, correct? 23 Q. I'm sure you can't read my handwriting, 24 A. That's correct. 24 because I can barely do that. 25 Q. And so at some point you had a 15.8, at 25 A. Okay. Page 131 Page 133 1 some point you had a zero and at some point you had a 1 Q. But if you could find that chart in there. 2 13.3? 2 A. This is the NOx concentrations. 3 A. Sure. 3 Q. Correct. 4 Q. Do you know what a regeneration is? 4 A. Okay, I have a Table 3, it shows NOx 5 A. Yes. 5 concentrations, yup. 6 Q. Did these ever experience a regeneration 6 Q. Okay. And do any -- Table 3 in Exhibit 27, 7 while on the dyno? 7 is that where you're looking? 8 A. It appears so. And the reason I say that 8 A. Yes, correct. 9 is just looking at -- generally you can -- you can 9 Q. I see. 10 track a regeneration event by a spike in particle 10 A. In the second report, yeah. 11 concentration, and I will say that -- that -- that my 11 Q. And so these figures for the NOx would have 12 recollection is that Volkswagen wanted to design the 12 included, therefore, regenerations as part of that 13 experiment so that when we were doing it they 13 data, correct? 14 recommended that we include a regeneration event 14 A. Yeah. NOx generally, actually, it goes 15 during the -- you know, that it would happen, because 15 down during a regeneration event because of the 16 it's a good thing to happen because it represents a 16 conditions and also the changes, the ratio of NO to 17 spike. That was my recollection anyways. So it 17 NO2. So -- that's my recollection anyway. So, yeah, 18 looks like, you know, here when you see this spike, 18 but it would include it. Generally what happens in a 19 the only thing that would probably cause that on 19 regeneration event, it changes the ratio of the gases 20 Figure 28 is a regeneration event. 20 and increases the particle concentration. 21 Q. So the spike on Figure 28 of Exhibit 27, 21 Q. Regeneration events on the road, however, 22 you attribute that to a regeneration event that 22 cause NOx to spike upwards, are you aware of that? 23 occurred on the dyno? 23 MR. MELKERSEN: Object to the form. 24 A. Most likely yes, because over a period of 24 A. Okay. 25 time you see a -- that's the only thing that could -- 25 Q. So -- Magna Legal Services (Pages 130 to 133) Page 134 Page 136 1 A. I mean, again, this is my recollection. I 1 A. No. 2 could be -- 2 Q. And so -- 3 Q. Okay. 3 A. Because it's not controllable. I mean, if 4 A. -- misremembering. 4 it happened, it happened. 5 Q. But it's fair to say whatever is the data 5 Q. Well, there are ways of controlling it, 6 that's in Table 2 here includes regeneration events? 6 right, you can force a regeneration prior to the time 7 A. Yeah, assuming that that spike is a 7 the test runs on the dyno, which is the -- 8 regeneration event, which looks to me like it is one, 8 A. Sure, but we weren't doing that. 9 then... 9 Q. Okay. Do you know what the difference 10 Q. You didn't do anything to precondition the 10 between -- generally in a diesel under old technology 11 cars to cause a regeneration event before running the 11 or on new technology, what the difference in on-road 12 FTP, did you? 12 emissions are as opposed to dyno emissions? 13 A. Not that I recall, no. 13 A. Not -- not -- I mean, not off the top of my 14 Q. Okay. And so when you look at the old 14 head. I mean, I can't really speak to it very well. 15 diesel -- so if I look at -- if I'm looking at Figure 15 Q. Are you aware of any study that -- that 16 31 for a moment, and I'm looking at tunnel NO, tunnel 16 evaluates off-road emissions? 17 NOx, and tunnel NO2 there's a comparison, right, 17 A. Oh, yeah, there's a whole literature on it, 18 between what's present in the air -- right? 18 you know, and I know a lot of people that have done a 19 A. Right. 19 lot of that work, but I'll be honest with you, I 20 Q. -- what's present in the new diesel 20 haven't done a lot of diesel work in the last four or 21 technology or new technology diesel engine, and 21 five years, I've been focused on other things, so 22 what's there for the old technology diesel engine, 22 it's -- I'm not privy to that -- the latest on that 23 correct? 23 literature. 24 A. Yes. 24 Q. Okay. Would it surprise you that even on 25 Q. And so in each of those cases, the amount 25 cars that aren't called -- that aren't labeled as Page 135 Page 137 1 of NOx has been dwarfed considerably on this chart, 1 having a defeat device, the ratio could be easily 2 correct? 2 five times that amount? 3 A. Yes. 3 MR. MELKERSEN: Objection. 4 Q. And what amount of NOx -- I mean, this 4 A. Which ratio? 5 is -- so this is reported in particles per million, 5 Q. Ratio of on-road to off-road. On -- 6 correct? 6 on-dyno to off-dyno. Let me -- let me see -- let me 7 A. Parts per million. 7 start the question again, because it was a terrible 8 Q. Parts per million. 8 question. 9 A. Yes. 9 Are you aware of any research, recent or 10 Q. And you can't tell me what the amount would 10 otherwise, that show that even for cars that 11 be without the regenerations, could you? 11 supposedly do not have a defeat device, the ratio of 12 A. It would be similar. I mean, over -- over 12 off-road emissions to dyno emissions can be five 13 the course of a -- the number of -- the amount of 13 times greater? 14 time that it's -- that it we went over, the -- a 14 MR. MELKERSEN: Objection. 15 small transient spike in concentration I think 15 A. I'm not aware, and, again, it's -- that 16 wouldn't have a drastic impact on the average. 16 part of the literature has been something that I 17 Q. Have you measured that? 17 haven't been paying that much attention to in about 18 A. Sure. Yeah, I mean, we've -- we've -- 18 ten years or so, so... 19 we've looked at results with or without. I mean, it 19 Q. Do you know anything about the allegations 20 has an impact, but it wouldn't be drastic, it's not 20 of the defeat device in this case? I think it 21 like it would look completely different. 21 sounded like you'd never heard of it other than in 22 Q. Did you note in -- in your review of the 22 the news. 23 data in which runs a regeneration occurred? 23 A. I mean, just what -- I know what I read in 24 A. No. 24 the newspaper articles and around the water cooler, 25 Q. Okay. Did you track that at all? 25 that's about it. Magna Legal Services (Pages 134 to 137) Page 138 Page 140 1 Q. And do you know what was -- what partic -- 1 mean, you can do the math. 2 what emission was affected by the defeat device? 2 Q (By Mr. Steinberg) 243.7 times. 3 A. My understanding is the NOx was. 3 A. Sure. 4 Q. Any other emission? 4 Q. So would you consider that a significant 5 A. That was my only understanding. 5 improvement from any type of health effect? 6 Q. Okay. 6 MR. MELKERSEN: Objection. 7 A. Again, I -- I didn't take a long time to 7 A. From any type -- 8 really study it in detail. 8 Q. From the perspective of -- 9 Q. Okay. So particulate matter which you 9 A. -- of health effect? 10 studied in this study, that wasn't impacted by the 10 Q. Yeah, for -- you know, causing any type of 11 defeat device, correct? 11 health effect, would you say that reducing NO by 243 12 MR. MELKERSEN: Object to the form. 12 times from the old technology is a positive for 13 A. I don't know. 13 health impact? 14 Q. Okay, well, I'll represent to you that the 14 MR. MELKERSEN: Objection. 15 defeat device had nothing to do with particulate 15 A. Sure, less is always better than more -- 16 matter. 16 Q. Okay. 17 A. Yeah, I mean, from what the newspapers 17 A. -- in the case of this. 18 said -- 18 Q. And 243 times that is pretty good, and this 19 MR. MELKERSEN: That's inaccurate, but go 19 even includes regeneration data? 20 ahead. 20 A. Yeah. 21 Q. Okay. 21 MR. MELKERSEN: Objection. 22 A. I don't -- 22 Q. Now, when you evaluate NOx -- so if I do 23 Q. Do you have any -- you know, in your 23 this right -- 24 understanding of any of the events related to the 24 A. We don't have to go through this. The new 25 Volkswagen diesel controversy, are you aware of any 25 technology -- Page 139 Page 141 1 mentions of diesel particulate being an issue? 1 Q. -- I get 184. 2 A. I am not. I'll be honest with you, I -- I 2 A. The studies show, just -- you know, just 3 looked at it and didn't spend a ton of time trying to 3 like other studies have shown that weren't focused on 4 understand the details. 4 health effects, that new technology diesel exhaust, 5 Q. So if we look at Exhibit 23 for a moment, 5 including Volkswagen and from other sources, has a 6 which was the table that was excised -- well, let's 6 positive impact in reducing NOx emissions. 7 just look at it out of table -- let's look at Table 2 7 Q. Okay. 8 in your study, the comparison of NO, NO2 and NOx 8 A. That was -- that was consistent with this 9 concentration in the dilution tunnel. Do you see 9 study, that's why it didn't surprise me that we saw 10 that? 10 such low NOx values because although I hadn't done a 11 MR. MELKERSEN: You mean page 31? 11 lot of work with 2010 technology, and this was even 12 MR. STEINBERG: Yes, page -- page 31 of 43. 12 cleaner, I think this was a 2012 engine, that I knew 13 A. Yeah. 13 that the NOx should be lower, which, of course, just 14 Q (By Mr. Steinberg) So in evaluating NOx, 14 like anything that -- that is a perceived pollutant, 15 this was -- I have -- I can pull out my calculator 15 the -- the less chance for exposure, the better 16 and do the math, but we're basically about -- on -- 16 benefit for public health. 17 on NO, about -- let's do the math. Can you estimate 17 Q. Now, at the time that you were doing this, 18 for me what -- how many times better is the NOx than 18 you -- are you aware of what it was in the automobile 19 the -- or the NO in the old technology versus the new 19 that caused the NOx to be reduced? Do you know 20 that you measured? 20 the -- the actual features of the car that caused the 21 MR. MELKERSEN: Object to the form. We've 21 reduction? 22 already established this is based on false data. 22 A. My -- my recollection is that these guys 23 MR. STEINBERG: Well, that's your position; 23 were using an SCR, but -- but I don't -- 24 we'll have that discussion another day. 24 Q. Okay. 25 A. I mean, at least a couple hundred times. I 25 A. -- but I don't recall exactly. Magna Legal Services (Pages 138 to 141) Page 142 Page 144 1 Q. Does it refresh your recollection that, in 1 Q. And this was one that focused, again, on 2 fact, they were using a lean NOx trap and not an SCR? 2 particulate matter, correct? 3 A. Oh, okay, right. 3 A. They use particulate matter as their 4 Q. Do you know about whether or not other cars 4 metric. 5 use lean NOx traps or SCRs? 5 Q. And why did they use particulate matter as 6 A. You know, there was a time a few years ago 6 their metric? 7 when I could spout all this stuff off, but I haven't 7 A. Because it's something people can relate 8 paid a lot of attention in the last four or five 8 to, and because it's consistent with the historic 9 years on this, I've been doing other stuff. 9 literature. 10 Q. No problem, I understand completely. By 10 Q. And the historic literature showed -- 11 the way, are you aware that there's been a fix that 11 A. On diesel exhaust. 12 has been authorized by the EPA and CARB to further 12 Q. -- on diesel exhaust showed negative health 13 reduce NOx, and in some cases for some of the 13 associations owing to the soot particulate matter? 14 vehicles, to actually at the levels required by 14 A. They linked it to the soot, but it's always 15 statute? 15 been an exposure metric because it's always been 16 MR. MELKERSEN: Objection. 16 whole exhaust that included everything. Likely the 17 A. That's great. I wasn't aware, but 17 soot played an important role. 18 that's -- 18 Q. And the -- obviously, the EPA and CARB, 19 Q. Okay. 19 they're aware of these effects, correct? 20 A. -- awesome. 20 A. Yes. 21 Q. And so in this -- in -- in the parts per 21 Q. Right, this is -- I mean, part of what you 22 million that you're evaluating, is there -- is there 22 do is to supply studies for those agencies to review 23 some margin of error associated with that 23 so that they can make determinations about health and 24 measurement? 24 safety, right? 25 A. Sure. 25 A. Correct. Page 143 Page 145 1 Q. And approximately -- do you know 1 MR. MELKERSEN: Object to the form. 2 approximately what would be the measurement error 2 Q. And in connection with their 3 associated with the parts per million as you measured 3 determinations -- 4 it in this study? 4 COURT REPORTER: I'm sorry? 5 A. In that study? Ah, plus or minus 5 MR. MELKERSEN: Object to the form. 6 10 percent probably. 6 Q. And in -- 7 Q. And so the equipment is able to detect the 7 MR. MELKERSEN: And just to be clear, I 8 parts per million at that level with a degree of 8 don't think that there was testimony that he, 9 confidence around a 10 percent range? 9 personally, or LRRI, have provided studies to the EPA 10 A. Sure. 10 or CARB. Go ahead. 11 Q. Okay. And is that true for the other 11 Q. Dr. McDonald, you've actually worked for -- 12 elements, the particulate matter -- 12 you've provided studies to the EPA, have you not? 13 A. Yes. 13 A. Yes. 14 Q. -- carbon dioxide, carbon monoxide? 14 Q. And you've participated in forums with 15 A. Yes. 15 them? 16 Q. When -- when -- when you were asked some 16 A. Yes. 17 other questions, I want to -- we asked questions 17 Q. And you publish your work, correct? 18 about human exposure and the like, and you were shown 18 A. Yes. 19 Exhibit 3, which was a randomized cross-over study of 19 Q. And so if the EPA and CARB were interested 20 inhalation of diesel exhaust. Do you recall 20 in diesel emissions, they would want to review your 21 questions around that? 21 work, wouldn't they? 22 A. Yes. 22 A. Yeah, our -- our work is cited in the EPA 23 Q. And this was another old technology study, 23 criteria documents for our position review, including 24 correct? 24 for diesel exhaust. 25 A. Correct. 25 Q. Yeah, so -- Magna Legal Services (Pages 142 to 145) Page 146 Page 148 1 A. And our -- and our work is cited in the 1 industry started utilizing that term on or about 2010 2 IARC review for cancer evaluation. 2 once they started meeting these regulations because 3 Q. And so your work is part of the ongoing 3 their emissions were quite clean, in fact, 4 work of a number of scientists to confirm, you know, 4 substantially cleaner than older technology, and I 5 that progress is being made towards making emissions 5 think they started using that because the diesel 6 healthier over time, correct? 6 industry has a perception problem and they were 7 A. Correct. 7 probably utilizing that to address that issue. 8 Q. And would you say that that's been a lot of 8 Q. And the EPA uses that term, correct? 9 progress over the past 20 years? 9 MR. MELKERSEN: Objection. 10 A. Yes. 10 A. I believe so. I've seen -- I've seen that 11 Q. So diesel -- and that's why you've wanted 11 in -- in documents that were nonindustry documents. 12 to focus on the new diesel emissions, correct? 12 Q. Industry -- you know, market participants 13 A. Yes. 13 like Cummins use that -- that name? 14 Q. So what is -- when we talk about new diesel 14 A. I've seen it pretty -- used pretty 15 technology, what in particular are you -- does that 15 pervasively. 16 mean to you? 16 Q. Okay. 17 A. Well, it's kind of a throwaway term at this 17 A. Multiple industry representatives. And 18 point, I mean, because new is whatever is new du 18 I've seen it be used by the government, others, so... 19 jour, right. So when we first started our health 19 Q. Why is a dyno used in your -- was dyno used 20 effects institute studies, new was 2007, and -- but 20 in your work? 21 that -- the technology is constantly evolving. They 21 A. To provide a more relevant and realistic 22 really started hammering on NOx and PM really in the 22 emission profile. 23 '90s primarily, and when they -- when they started 23 Q. And is that so you can compare apples to 24 really having good advances, and then in 2000 there 24 other apples, so to speak? 25 was a lot of good reductions. The most 25 A. Yeah, I mean, it would be -- the previous Page 147 Page 149 1 transformative technology changes, though, were 1 work that we've done has always been on a dynamometer 2 probably in 2007 and '10, with PM in 2007 and NOx in 2 of some sort. A lot of the stuff in the literature 3 2010. 3 hasn't been, but I think that, you know -- we've 4 Q. And you're then referring to the creation 4 always, you know, suggested that the majority of 5 of the tier 2 standards -- 5 exposure occurs while vehicles are in operation, not 6 A. Yeah. 6 in idle, and we do know for sure that not only does 7 Q. -- at least for light duty, and then I 7 the composition change quite a bit when there's load 8 don't know what they're called in the heavy-duty, but 8 on the engine, it also changes the biological 9 those are the -- 9 effects. In fact, I've published before showing the 10 A. Right. 10 difference between biological response of an idle 11 Q. -- 2010 standards? 11 versus an operating engine. 12 A. Right. 12 Q. And, in this case, you did both a FTP 75 13 Q. And so when you've been referring to the 13 and a highway FTP; is that right? 14 2010 new technology, those -- I'm sorry, I have to 14 A. I don't recall. I'll take your word for 15 finish my question so she can write it down -- those 15 it. 16 are referring to the technologies used to bring 16 Q. It was in the exhibit on -- Exhibit 11, I 17 heavy-duty diesels into compliance with federal law? 17 believe. This was the progress reports. 18 A. Correct. 18 A. Sure. 19 Q. All right, have you ever heard the term 19 Q. If I can get you to -- I just want to 20 clean diesel before? 20 confirm that, I don't want to leave here and all of a 21 A. Yes. 21 sudden find out that we've got something wrong. 22 Q. And what does that mean to you? 22 MR. PATRICK: Exhibit 10 is the progress 23 A. Well, I -- I suppose what it means is -- 23 reports. 24 what I -- the way I've always interpreted it, which 24 Q. I'm sorry, Exhibit 10. Can I get you to 25 could be wrong, is that -- that I think the -- the 25 find it in front of you? If you want, I can -- we Magna Legal Services (Pages 146 to 149) Page 150 Page 152 1 can take a break, I can organize those for you so 1 A. You know, we probably had a way to do that, 2 that it's easier, because I -- I am going to refer 2 but -- but that was something I wasn't involved with 3 back to a lot of the documents that we've gone over 3 directly with how to do the alignment. 4 before. 4 Q. To your knowledge, was there any 5 A. Okay. 5 prohibition against using the steering wheel? 6 Q. You found it, but you're ahead of me. If 6 A. You have to use the steering wheel because 7 you look at Exhibit 10. Look at progress report 7 there's a little bit of wiggle when you're on it and 8 number 14, and item number 1 referring to the Liang 8 so you're constantly kind of steering a little bit to 9 visit of October 2, 2014. 9 make sure that you don't fall out of alignment. 10 A. Okay. 10 Q. And so this would be constantly on the dyno 11 Q. It says, "Once aligned, the vehicle was 11 while -- while driving? 12 tested for partial FTP cycle and also for complete 12 A. That's correct. 13 FTP highway duty cycle." What did you mean by both 13 Q. And so the steering wheel would be used? 14 of those? Or what did Lovelace mean, LRRI mean by 14 A. Correct. 15 both of those? 15 Q. And that would be for the tests of both the 16 A. Well, I mean, considering the fact that 16 VW car and for the -- 17 you're leading me to the previous question, I presume 17 A. Correct. 18 that those are -- the partial FTP cycle is one 18 Q. -- Ford? 19 designation and the full FTP cycle is another. 19 A. Correct. 20 Q. Well, there is an FTP cycle, but I'm 20 Q. And so in -- and so with the movement of 21 curious what was made partial about it? 21 the vehicle back and forth -- with the movement of 22 A. I don't recall. 22 the steering wheel back and forth, that steadied the 23 Q. Were there -- who put, in fact, the cars on 23 car on the dyno and was not prohibited at all by -- 24 the dyno? 24 A. Yeah -- 25 A. We work with Mr. Liang on the dynamometer 25 Q. -- your work? Page 151 Page 153 1 programming -- 1 A. -- if you're not in alignment, you tend to 2 Q. Right. 2 drift, so you're -- you're always manually adjusting 3 A. -- and our technical staff were physically 3 the alignment to make sure that you stay aligned. 4 putting the -- I wasn't doing it, me personally, let 4 Q. And the dyno was broad enough to hold both 5 me put it that way. So our technical staff were -- 5 a Ford truck and a much narrower Beetle, correct? 6 Mr. Irshad and a couple of other techs were -- were 6 A. Correct. 7 putting it on there. 7 Q. Right, you didn't have two different dynos? 8 Q. So they'd have to drive it onto the dyno, 8 A. Correct. 9 right? 9 Q. And there were no -- were there guidelines? 10 A. Yeah, it's a physical driving it up there. 10 I didn't see on the pictures any guides that would 11 Q. And they did it, right? 11 hold the wheels in a particular space. Was there? 12 A. Yeah. Yeah, typically they were doing it. 12 A. No, I mean, you -- you kind of maintain it 13 Q. And -- and they would have to steer the car 13 on there. 14 onto the dyno? 14 Q. And so it was common to use the steering 15 A. Correct. 15 wheel in connection with this, correct? 16 Q. Was there any protocol for them about how 16 A. Yes. 17 to put it on the dyno, any written protocol? 17 Q. Now, when approximately was the physical 18 A. How to put it on? 18 times when the dyno was actually used for this test, 19 Q. Yeah. 19 like what months of the year? 20 A. I don't think -- probably not. I mean, 20 A. I -- I don't recall. 21 there was once you got on, I mean, take step one, do 21 Q. Can you just tell me what year it was? Was 22 this, that and the other, but it was, you know, put 22 it in 2014? 23 it in reverse and push on the pedal. 23 A. Yes. 24 Q. How was the car aligned to get it on the 24 Q. Latter part of 2014? 25 dyno? 25 A. Presumably. I have to look back at the Magna Legal Services (Pages 150 to 153) Page 154 Page 156 1 dates, but yes. 1 Q. Were you ever told, and including in your 2 Q. I mean, it was after Mr. Liang's visit, 2 questions today, that actually turning the wheel 3 correct? 3 while on the dyno, very small amounts, can eliminate 4 A. Yes. 4 the defeat device -- 5 Q. Was there any way for you to check -- did 5 MR. MELKERSEN: Object to the -- 6 you ever measure any off-road -- off-dyno emissions 6 Q. -- the operation of that program? 7 from the vehicle? 7 MR. MELKERSEN: Object to the form -- 8 A. By off-dyno, you mean directly out of the 8 A. I don't know. 9 tailpipe? 9 MR. MELKERSEN: -- misstates the facts. 10 Q. Yes. 10 A. I don't -- you're -- you're -- you're 11 A. We may have, and -- and the reason why we 11 speaking in an area that I am not familiar with. 12 would have done that is to assess dilution rates 12 Q. Okay. But I just -- you know, if there -- 13 using ratios of exhaust constituents. 13 it's your recollection that clearly people were 14 Q. Right, so you measured off the dyno -- 14 moving the steering wheel during the operation of the 15 A. Um-hum. 15 cars on the dyno? 16 Q. -- emissions including NOx, correct? 16 A. I mean, you -- you have to maintain the 17 A. I don't recall if we measured NOx, because 17 stability of the vehicle because otherwise it will 18 we would have just been using -- some gas, probably, 18 drift. 19 either NOx or CO or something like that, yeah. 19 Q. Okay. 20 Q. Okay. Did you -- did anyone alert you to 20 A. And so that means you have to keep the 21 any differences that they had seen by working off the 21 wheel straight, and so that involves some 22 dyno? 22 manipulation of the steering wheel, yeah. 23 A. Differences? 23 Q. Okay. 24 Q. Differences in the constituent parts of the 24 A. I mean, it's not like a drastic turn, it's 25 Volkswagen emissions. 25 just kind of maintaining it steady. Page 155 Page 157 1 MR. MELKERSEN: Objection. 1 Q. Do you know -- 2 A. I don't know what you mean by differences. 2 A. How that impacts the -- the -- this device, 3 Q. Well, you know, when operating not on the 3 I have no idea. 4 dyno, did anyone say, wow, this is throwing off a lot 4 Q. Do you know what degree change was required 5 of NOx, much more -- different -- 5 in order to turn the defeat device off? 6 A. Oh. 6 A. No idea. 7 Q. -- than on the -- on the -- 7 Q. Okay, do you know if it was under 8 A. Okay. You know -- 8 5 degrees? 9 Q. -- dynamometer? 9 A. I -- I -- I know nothing about the -- 10 A. I don't recall, actually, that we ever took 10 Q. Okay. 11 emissions measurements when it wasn't on the 11 A. -- defeat device at all. 12 dynamometer. I could maybe be misremembering, but I 12 Q. So -- 13 think we only probably did it when it was on the 13 A. Other than what I read in the newspaper and 14 dyno. 14 what I learned today. 15 Q. Okay. But you don't know one way or the 15 Q. I appreciate that. So as you sit here 16 other whether or not the defeat device in the 16 today, you haven't done any evaluation of the on -- 17 vehicle, and there was one, whether it was operating 17 off-road or off-dyno emissions from the vehicle 18 or not? 18 versus on-dyno emissions? 19 A. Well, all I know is this e-mail that was 19 A. No. 20 provided here, Exhibit 23, that -- that suggests that 20 Q. And so you can't tell me whether or not the 21 the -- that system, which I presume is the defeat 21 defeat device was operating or not when you were 22 device, was on by default during the study, and I 22 doing the study? 23 guess I didn't really think about it at the time, but 23 MR. MELKERSEN: Objection. 24 it -- you know, my assumption based on that is that 24 A. All I know is what's in Exhibit 23. 25 the defeat device was on during the work. 25 Q. Okay. And what's in Exhibit 23 was never Magna Legal Services (Pages 154 to 157) Page 158 Page 160 1 asked of anyone, was never discussed with Volkswagen, 1 actually produce a ton of NOx. 2 any representative of Volkswagen, correct? 2 Q. How many parts per billion? 3 MR. MELKERSEN: Objection. 3 A. It's very low. 4 A. No, no, no, this is -- I mean, I didn't 4 Q. Can you give me a parts per billion? 5 even think of any of this -- any of it at the time or 5 A. No. 6 make the connection until reading it today, which is 6 Q. Okay, does it matter to the occupant of the 7 interesting. I don't -- I mean, I don't -- I don't 7 home whether or not things like the flue is open 8 know what to say about it. 8 completely, whether the fan is working over a 9 Q. Well, did -- did you ever -- I mean, when 9 vented -- over a range to eliminate -- 10 you got this, did you ever raise the question with 10 A. Of course. 11 anyone at Volkswagen, when you got Exhibit 23, 11 Q. -- NOx? 12 telling you about the defeat device? 12 MR. MELKERSEN: Objection. 13 A. The fact that I didn't respond suggests 13 Q. And there are -- you are aware of household 14 that I wasn't paying attention. I got the e-mail and 14 studies that evaluate the amount of NOx present -- 15 was probably on to something else, because, you know, 15 MR. MELKERSEN: Objection. 16 that was -- I get a lot of e-mails. 16 A. Sure. 17 Q. Fair enough. I noticed in your background 17 Q. -- in the home from these standard items? 18 that you do some work in household emissions and 18 A. Sure, yeah. 19 you've done some work in household emissions. 19 Q. And that would include things like water 20 A. What do you mean by household emissions? 20 heaters, right? 21 Q. Wood burning stoves. 21 A. Sure. 22 A. Oh, sure, yeah, yeah. 22 MR. MELKERSEN: Objection. 23 Q. Gas stoves? 23 Q. It would include -- 24 A. Yeah, I've done some of that. 24 MR. MELKERSEN: Just give me an ongoing 25 Q. In the context of that work, did you 25 objection to this whole line of questioning. Page 159 Page 161 1 measure NOx? 1 A. Where -- where are we going with this? 2 A. Yeah, we've done some NOx emissions 2 Q. Just trying to find out what the level of 3 measurements, yeah. 3 household exposure is as how much it would be 4 Q. And in the context of, you know, stoves in 4 compared to the amounts that were used in your study. 5 kitchens, what -- what type of range of NOx can be 5 A. The -- the amount of NOx in the study was 6 produced by a, you know, standard gas stove? 6 low, very low, and in -- in the -- we're talking 7 MR. MELKERSEN: Objection. 7 about -- okay, so NOx of .9 PPM for the new 8 A. I don't -- I don't know that information 8 technology diesel exhaust, if this -- if this is 9 off the top of my head, I'm sorry. 9 true -- I -- I'm just looking at the NOx levels in 10 Q. Do you know how many parts per millions 10 this e-mail -- they're about a PPM, okay. So, 11 that would be? 11 typically, household exposure is going to be less 12 MR. MELKERSEN: Objection. 12 than that. 13 Q. Parts -- 13 Q. Okay. And so -- so right now we're looking 14 (Simultaneous crosstalk.) 14 at -- you know, we're looking at under 1 part per 15 A. ...information I don't remember? 15 billion on the items in Exhibit 23? 16 Q. Yeah. Just a range? I mean, is it just -- 16 A. Correct. 17 A. Oh -- 17 Q. On the NOx? 18 Q. -- that you don't remember a specific 18 A. Yes. 19 number or is it -- 19 Q. And that includes regenerations? 20 A. -- within a home you're talking -- 20 A. Presumably. 21 MR. MELKERSEN: Objection. 21 Q. Okay. 22 A. -- it's got to be part per billion. 22 MR. STEINBERG: Let's take a break, a quick 23 Q. And what about wood burning? 23 break. I'm going to organize, and then I'm hoping we 24 MR. MELKERSEN: Same objection. 24 can sort of plow through and be done. 25 A. Wood burning, surprisingly, doesn't 25 (A recess was taken from 1:07 to 1:22 p.m.) Magna Legal Services (Pages 158 to 161) Page 162 Page 164 1 Q (By Mr. Steinberg) Dr. McDonald, there was 1 A. Yes. 2 some earlier questions about the choice of using a 2 Q. Is that a well-known study? 3 primate in connection with this study. Do you have a 3 A. Yes. 4 sort of internal review board that analyzes your 4 Q. Are those individuals respected scientists? 5 protocols? 5 A. Yes. 6 A. Yes. 6 Q. Was that using humans? 7 Q. And what is that called? 7 A. Yes. 8 A. IACUC review. 8 Q. Let me have marked as -- 28? I think so. 9 Q. And what -- what does that stand for? 9 (Exhibit 28 marked.) 10 A. Institutional Animal Care and Use 10 Q (By Mr. Steinberg) Is this the study that 11 Committee. 11 you had referenced in connection with your original 12 Q. And in connection with this study, did you 12 protocol that was provided? 13 provide the protocol involving the use of nonhuman 13 A. I believe so. 14 primates to the IACCUC (sic)? 14 Q. And this was done in 1999 with old diesel 15 A. IACUC, the IACUC, yes. 15 technology? 16 Q. Yes. And did they approve the protocol? 16 A. Correct. 17 A. Yes. 17 Q. And there they evaluated a number of 18 Q. And what does the IACCUC look for when 18 different aspects of -- of diesel exposure; is that 19 they're evaluating protocols? 19 correct? 20 A. They evaluate to what extent the research 20 A. Correct. 21 is necessary and warranted based on the use of 21 Q. Including NOx? 22 animal -- animals, and they verify that it's not 22 A. Yes. 23 repetitive to what -- something that's been done 23 Q. And do you recall what their conclusions 24 before, and they also verify that you're not going to 24 were about NOx even using the old diesel technology? 25 put the animal in any unnecessary duress or distress 25 A. They're suggesting that it's not related to Page 163 Page 165 1 or un-comfort without -- without sufficient 1 NO2. 2 supportive care. 2 Q. And in this -- in their study, they did see 3 Q. And part of the things you talked about 3 some inflammation, correct? 4 earlier this morning was that you have behaviorists 4 A. Correct. 5 who work with nonhuman -- the monkeys -- 5 Q. But they did not attribute it to NOx; is 6 A. Right. 6 that right? 7 Q. -- to ensure that they're okay while in the 7 A. Correct. 8 exposure chamber; is that correct? 8 Q. And if you look at the first column on 9 A. Yes. 9 page 708 of this study where it's talking about what 10 Q. And did you communicate all of that to 10 diesel exhaust has, that indicates that diesel 11 Volkswagen, that you had been in contact with the 11 exhaust, "DE consists of a combination of several 12 IACCUC and that they had approved the protocol? 12 pollutants, including the gaseous and particulate 13 A. Yes. 13 components." Do you see that? 14 Q. And was that part of the materials that 14 A. Yes. 15 were contained in the progress reports in Exhibit 10? 15 Q. It says, "The gaseous phase consists of 16 A. I believe that was. 16 oxides of nitrogen, carbon and sulphur" -- 17 Q. Okay. When all of this started, the 17 A. Right. 18 initial protocol that you provided, as we've 18 Q. -- correct? And that's to be contrasted 19 discussed before, was going to use humans and then 19 with particulate matter; is that right? 20 there was a movement away from that, correct? 20 MR. MELKERSEN: Objection. 21 A. Correct. 21 A. Where -- where did you see -- 22 Q. And one of the items that you -- one of the 22 Q. Because it's the gaseous phase versus the 23 items that you identified in that initial protocol 23 nongaseous phase. 24 provided to EUGT was a citation to a study that had 24 A. Okay. 25 been done by Salvi and Blomberg, do you recall that? 25 Q. It says "The level of NOx from DE used in Magna Legal Services (Pages 162 to 165) Page 166 Page 168 1 this study, 1.6 parts per million, are encountered 1 it was a crossover design, which we used the same 2 during peak pollution episodes." Do you see that? 2 animals, and I think that in the lavage they didn't 3 A. Okay. 3 give them enough time to recover. So we looked at 4 Q. So is it correct that your study was at a 4 inflammation a number of different ways, and so in 5 much -- showed NOx at a much less level than this 5 that one we saw inflammation no matter what because I 6 study from 1999? 6 don't think they recovered the animals well enough, 7 A. Using the older technology? 7 so it's hard to conclude based on that particular 8 Q. Yes. 8 finding. 9 A. Of course, yeah. 9 Q. And the reason why that became an issue for 10 Q. And it goes on to say the -- that "the 10 you is that while crossover designs are actually, 11 inflammatory response seen in our study," referring 11 from an experimental standpoint, excellent, there 12 to the Salvi study, "cannot be attributed to NOx 12 were carryover effects that were unanticipated? 13 since our previous human exposures studies with NO2 13 A. Yeah, which made it a little bit difficult 14 alone used at higher concentrations for a longer 14 to interpret, especially for those responses. 15 duration, 2 part per million for four hours, using 15 Q. And those responses related to the NO2 in 16 similar study protocol, did not show any cellular 16 your study? 17 inflammatory response." Do you see that? 17 A. No, those responses related to the lavage 18 A. Yeah. 18 inflammatory cells. So we looked at it by looking at 19 Q. Do you find anything incorrect about that? 19 blood, we looked at bronchial brushing, we looked at 20 A. I'm sorry, I'm just catching up. Now, 20 a number of different things. 21 where were you? 21 Q. And is there -- in the -- the lavage was 22 Q. In the paragraph starting "DE consists 22 not correlated with the blood work results, correct? 23 of..." 23 A. Yeah, that's right. 24 A. On which page? 24 Q. And it wasn't correlated with any of the 25 Q. On page 708. 25 other results, and that's what gave you the Page 167 Page 169 1 A. Okay, "DE consists of" -- 1 determination that there was potentially crossover 2 Q. Right. 2 effects? 3 A. Okay. 3 A. Right. 4 Q. About three sentences down, right, it seems 4 MR. STEINBERG: Okay. Thank you, I have no 5 more likely that the particulate component of DE is 5 further questions. 6 responsible for the inflammation. Do you see that 6 EXAMINATION 7 statement? 7 BY MR. MELKERSEN: 8 A. Yeah, I see it now, um-hum. 8 Q. So, Dr. McDonald, the -- in Exhibit 23 that 9 Q. And do you agree with that? 9 we were looking at, which has this table of NOx 10 A. Do I agree that the findings here were 10 values that you-all documented during the study, 11 likely to have not have been attributed to NO2 -- 11 would these NOx values be reflective of a vehicle 12 Q. Yes? 12 that is emitting emissions that are EPA compliant? 13 A. -- because of what they said? 13 A. I don't know, because I don't know at the 14 Q. Yes. 14 time of this study what -- where we were in terms of 15 A. Makes sense. 15 EPA regs, but even more these are measurements that 16 Q. Okay. And do you consider the study to be 16 are taken that -- that aren't really -- so if you're 17 reliable? 17 going to do an emissions test for EPA compliance, 18 A. Yeah, I have no reason to doubt it. 18 you're going to measure and dilute it right out of 19 Q. Now, the study that you did also showed 19 the tailpipe, and you're going to relate your 20 inflammation, correct? 20 emissions to a metric that is based on usually like 21 A. Yes. 21 fuel consumption or some other variable that's going 22 Q. And you attributed that inflammation to the 22 to be able to link it directly to the vehicle. 23 shortened time between lavage? 23 All these are is we diluted some stuff and 24 A. For the -- in the lavage samples, I -- I 24 put it in a chamber and -- for -- for conducting an 25 think that we had an issue with the -- we didn't -- 25 animal study, so it's difficult for me to relate Magna Legal Services (Pages 166 to 169) Page 170 Page 172 1 these directly to an emissions standard. All I can 1 Mr. Steinberg said earlier it did have it, and if 2 tell you is the levels are low. 2 that defeat device was, in fact, on during your 3 Q. Low compared to what? 3 testing, that that would undermine the results of 4 A. Compared to the older technology that's 4 your study? 5 reflected here. In terms of low compared to -- 5 A. Correct. 6 they're also low compared with previous new 6 Q. Have you seen the EPA's notice of violation 7 technology diesel that I had done, but it was 2007 7 to Volkswagen which was issued on September 18, 2015, 8 technology. So it was before the NOx reduction 8 which made these allegations regarding the defeat 9 technology that was integrated. 9 devices in these vehicles? 10 Q. If I told you that the EPA alleged -- ask 10 A. No. 11 you to assume this as accurate -- that the EPA 11 Q. I'm going to read to you from a portion of 12 alleged that the type of engine that was in the 12 those allegations. One moment. Hang on a second 13 Beetle that you tested would produce NOx emissions 13 here. "VW manufactured and installed software in the 14 that are 10 to 40 times above EPA limits and if I 14 electronic control module, ECM, of these vehicles 15 also told you to assume that at the higher end of 15 that sensed when the vehicle was being tested for 16 that range that a Beetle would produce even more NOx 16 compliance with EPA emission standards. For ease of 17 emissions than a typical Mac diesel truck in the old 17 reference, the EPA is calling this the switch. The 18 diesel technology, would you expect to see NOx 18 switch senses whether the vehicle is being tested or 19 emissions this low if that vehicle was not operating 19 not based on various inputs, including the position 20 with the defeat device in effect? 20 of the steering wheel, vehicle speed, the duration of 21 MR. STEINBERG: Objection, calls for 21 the engine's operations and barometric pressure. 22 speculation, misstates the record, improper 22 These inputs precisely track the parameters of the 23 hypothetical. 23 federal test procedure used for emissions testing for 24 A. The only thing I can go on is that we did a 24 EPA certification purposes. During EPA emission 25 study with 2007 technology diesel exhaust. At the 25 testing the vehicle's ECM ran software which produced Page 171 Page 173 1 time, the -- the NOx reductions had gotten to the 1 compliant emissions results under an ECM calibration 2 point where they were actually meeting the NOx 2 that VW referred to as the dyno calibration, 3 standards at that time even with that current 3 referring to the equipment used in emissions testing 4 technology, and the amount of dilution that went into 4 called a dynamometer. At other times during normal 5 those studies were similar to what we had here, it 5 vehicle operation, the switch was activated and the 6 was about 100 or so, in that range, and our NOx 6 vehicle ECM software ran a separate road calibration 7 concentrations were higher than this and -- in that 7 which reduced the effectiveness of the emission 8 study. And how that -- how that relates to the 8 control systems specifically the selective catalytic 9 series of questions you asked, I don't quite know. 9 reduction or the lean NOx track. As a result, 10 Q. Okay. 10 emissions of NOx increased by a factor of 10 to 40 11 A. But -- but I can tell you that the NOx is 11 times above the EPA compliant levels depending on the 12 low. I don't know if it was because the engine just 12 type of drive cycle, eg, city, highway." So that's 13 worked really well or because there was other things 13 the gist of what the EPA alleged in this violation to 14 in play. I can't tell you. 14 Volkswagen. 15 Q. Okay. You were asked several questions 15 I now want to read to you -- and then I'll 16 about the particulate matter that was reflected in 16 get to that my question -- an excerpt from my 17 the various charts in your final report, as well as 17 deposition of Stuart Johnson who you were talking 18 the NOx values. It's true, isn't it, that all of 18 about you had dealings with in connection with the 19 those tables and reports assumed that you were 19 publication of your report. And this is -- this 20 gathering data that was not manipulated by a defeat 20 occurred -- deposition of him occurred on 21 device? 21 August 8th of this year. I say to Mr. Johnson, 22 A. Correct. 22 question, "I've handed you what's been marked as 23 Q. And it's also true as you sit here today 23 Exhibit 29 to your deposition. I'll represent to you 24 that if you assume that a defeat device was on that 24 these are the notices of violation dated 25 2013 Beetle that you were testing, which 25 September 18, 2015, both by CARB and then behind it Magna Legal Services (Pages 170 to 173) Page 174 Page 176 1 by the EPA. You're familiar with these documents?" 1 have concerns, upon reflection, of -- of it in terms 2 Answer, "Yes." Question, "You reviewed them before 2 of the role that -- that James played in being 3 today?" Answer, "Yes." Question, "And, in fact, 3 hands-on with -- within the study, and to what -- in 4 these documents are addressed to you, aren't they?" 4 hindsight, I did think it was a little bit odd that 5 Answer, "Yes." Question, "And is there anything that 5 he wanted to monitor and control the -- the stuff as 6 you believe to be inaccurate in the allegations 6 much as he did, but I didn't think much of it at the 7 contained in these documents?" Answer, "I believe 7 time. I thought it was (sound) whatever, the guy 8 it's accurate." 8 wants -- they want to be hands-on. You know, walking 9 So understanding that Mr. Johnson admitted 9 through the evidence today, it's hard not to feel 10 to me in his deposition and understanding what the 10 that -- that I was being deceived a little bit. 11 EPA alleged about these vehicles, had you known that 11 However, I also recognize that there's a 12 when you ran these tests, would you have moved 12 little bit of differences of opinion of whether or 13 forward and done this testing for Volkswagen? 13 not that's true or not, and I -- I don't know. I 14 A. No. No. 14 mean, I -- I don't know what the answer is. There's 15 Q. Why? 15 some -- there's some things that occurred here, now 16 A. If I knew that there was an improper defeat 16 and looking back and looking through the evidence, 17 device that would improperly represent the 17 that I don't know how to -- I don't know how to 18 emissions -- 18 really react to at this point. They're -- they're 19 Q. Right. 19 concerning. 20 A. -- as they were supposed to? Well, in my 20 Q. You said you felt like a chump. 21 opinion, the purpose of the study was not to test a 21 A. That was off the record. 22 Volkswagen vehicle. In my opinion, the purpose of 22 Q. Based upon what you know now and what I 23 the study was to assess old technology versus new 23 just read you and what we went through, to be clear, 24 technology. I never viewed it as a Volkswagen study. 24 do you believe that it is appropriate to publish the 25 Even though there were Volkswagen participants, I 25 results of your study? Page 175 Page 177 1 never viewed it as a Volkswagen study. I viewed it 1 A. No. 2 as a technology study. And so in respect to that, I 2 MR. MELKERSEN: Thank you. That's all. 3 didn't care what engine was selected, whether it was 3 EXAMINATION 4 a VW or not, because I didn't think of it as anything 4 BY MR. STEINBERG: 5 other than just a representation of technology. 5 Q. Just two follow-ups. 6 So in the event that it would then be, 6 A. Sure. 7 basically, a representation of technology that was 7 Q. You focused on Mr. Liang and his 8 not representative -- representative of the 8 interactions with you. I take it he never, of 9 population of -- of vehicles that are out there in 9 course, told you there was a defeat device? 10 terms of the technology in 2013 that was out there, 10 A. No. 11 whether -- whether or not you used a Cummins or an 11 Q. Do you know who else he deceived including 12 International or a Volkswagen, then it wouldn't have 12 deception within Volkswagen Group of America or 13 seemed appropriate in the context of -- of what we 13 Volkswagen AG, do you know who else he deceived? 14 were doing, especially -- now, if -- if the purpose 14 A. I didn't know he deceived anyone until 15 was to say, look, we want to look at Volkswagen 15 today, so I have no idea. 16 technology in particular, that was the purpose of the 16 Q. Okay. But Mr. Liang never told you that -- 17 study, that would be a different thing, but in the 17 you know, never explained to you about a defeat 18 context of it being to test a device that was 18 device, never told you that he shared that with 19 illegal, obviously, I would never do that. 19 others or did anything of the like? 20 Q. Do you believe, based upon all of your 20 A. I found out about the defeat device on 21 interactions with Volkswagen that even occurred after 21 September 18, 2015, by the newspaper article. 22 this notice of violation issue in September of 2015, 22 Q. So did many at Volkswagen. 23 that they attempted to deceive you? 23 MR. STEINBERG: Thank you so much. I 24 A. Oh, man. It sure doesn't smell very good 24 appreciate your time. 25 looking at it, but I just don't know. I mean, I -- I 25 THE WITNESS: Okay. Magna Legal Services (Pages 174 to 177) Page 178 Page 180 1 MR. STEINBERG: Off the record. 1 VIRGINIA: 2 (A recess was taken from 1:46 to 1:46 p.m.) 2 IN THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX 3 3 MR. MELKERSEN: So I just wanted to state 4 that we did not receive your e-mails, your personal IN RE: VOLKSW AGEN "CLEAN 4 DIESEL" LITIGATION 5 5 e-mails from your e-mail account because there was a 6 CARLOS CASTELLUCCI, 6 searching issue until yesterday, and so we, our 7 group -- I'm obviously the tip of the spear here, 7 Coordinated Case No.: CL-2016-9917 8 Plaintiff, 9 vs. 8 there are a lot of other attorneys that are behind 9 me - 10 Case No.: CL-2017-288 11 VOLKSW AGEN GROUP OF AMERICA, INC., 10 THE WITNESS: Sure. 12 11 MR. MELKERSEN: -- that are involved -- and 13 Defendant. 12 so a lot of those individuals have not yet had a 14 CERTIFICATE OF COMPLETION OF VIDEOTAPED DEPOSITION 13 chance to review that information and so although I 15 I, PEGGY JO GONZALES, N ew M exico CCR #145, DO HEREBY CERTIFY that on August 16, 2017, the 14 believe it is highly unlikely that we will ever be 16 deposition of JACOB M cDONALD, M.D., was taken before 15 back here despite how nice I think Albuquerque is, 16 and this is the first time I've ever been here - m e at the request of, and sealed original thereof 17 retained by: 18 Attorney for the Plaintiffs 17 THE WITNESS: Sure. MR. MICHAEL J. M ELKERSEN 19 THE L A W OFFICES OF MICHAEL J. M ELKERSEN 18 MR. MELKERSEN: -- and I wouldn't mind 9633 S. Congress Street 19 coming back, I -- I think that's highly unlikely. I 20 will state that because we just recently got those 20 N ew Market, Virginia 22844 mike@mlawpc.com 540.740.3937 21 21 documents yesterday, that -- that at least 22 technically, for purposes of the record, we're going 23 to leave it open. I FURTHER CERTIFY that copies of this 22 certificate have been mailed or delivered to all Counsel, and parties to the proceedings not 23 represented by counsel, appearing at the taking of 2 4 I know you probably object to that Michael, 2 5 but - the deposition. 24 25 Page 179 Page 181 1 MR. STEINBERG: Well, I object because 2 you've never provided those to us to, so that seems a 3 little bit - 4 MR. MELKERSEN: Say again? 5 MR. STEINBERG: I don't think we've gotten 6 those e-mails that you say you received yesterday. 7 MR. MELKERSEN: Yeah, I don't know. 8 MR. STEINBERG: That's news to me. 9 MR. MELKERSEN: I don't know. 10 MR. STEINBERG: Okay. 11 MR. MELKERSEN: The assumption was that 12 they were being produced to everybody, but if that's 13 not the case, I don't know. 14 MR. PATRICK: They're supposed to be 15 produced to everybody. 16 MR. STEINBERG: We haven't received them. 17 So we'll talk about that, but -- that's my objection. 18 MR. MELKERSEN: Understood. That's all. 19 MR. STEINBERG: Thank you. 2 0 (The deposition concluded at 1:48 p.m.) 21 22 23 24 25 1 I FURTHER CERTIFY that examination o f this transcript and signature o f the witness was requested 2 by the witness and all parties present. 3 On___________a letter was mailed or delivered to the witness regarding obtaining signature. 4 I FURTHER CERTIFY that the recoverable cost of 5 the original and one copy o f the deposition, including exhibits, to MR. MICHAEL J. MELKERSEN is 6 $_______ . 7 I FURTHER CERTIFY that I did administer the oath to the witness herein prior to the taking o f this 8 deposition; that I did thereafter report in stenographic shorthand the questions and answers set 9 forth herein, and the foregoing is a true and correct transcript o f the proceeding had upon the taking of 10 this deposition to the best o f my ability. 11 I FURTHER CERTIFY that I am neither employed by nor related to nor contracted with (unless excepted 12 by the rules) any o f the parties or attorneys in this case, and that I have no interest whatsoever in the 13 final disposition o f this case in any court. 14 15 16 Peggy Jo Gonzales, CM Bean & Associates, Inc. 17 Professional Court Reporting Service NM Certified Court Reporter #145 18 License Expires: 12/31/2017 19 20 21 22 2 3 (8637L-PJ) Date Taken: August 16, 2017 2 4 Proofread by: PJ/CB 25 MAGNA Legal Services (Pages 178 to 181) Page 182 1 CASTELLUCCI vs. VOLKSW AGEN GROUP OF AMERICA 2 WITNESS SIGNATURE/CORRECTION PAGE 3 If there are any typographical errors to your deposition, indicate them below: 4 5 PAGE LINE 6 ____________ Change t o ___________________________________ 7 ____________ Change t o ___________________________________ 8 ____________ Change t o ___________________________________ 9 ____________ Change t o ___________________________________ 10 Any other changes to your deposition are to be listed below with a statement as to the reason 11 for such change. 12 PAGE LINE CORRECTION REASON FOR CHANGE 13 _______________________________________________ 14 _______________________________________________ 15 _______________________________________________ 16 _______________________________________________ 17 _______________________________________________ 18 _______________________________________________ 19 I, JACOB McDONALD, M.D., do hereby certify that I have read the foregoing pages o f my testimony as 2 0 transcribed and that the same is a true and correct transcript o f the testimony given by me in this 21 deposition on August 16, 2017, except for the changes made. 22 23 Date Signed JACOB McDONALD, M.D. 24 25 (8637L-PJ) Proofread by: PJ/CB Page 2017 RECEIPT JOB NUMBER: (8637L-PJ) August 16, WITNESS NAME: JACOB McDONALD, M.D. CASE CAPTION: CASTELLUCCI vs. VOLKSWAGEN GROUP OI AMERICA ATTORNEY: MR. MICHAEL J. MELKERSEN DOCUMENT: Transcript / Exhibits / Disks / O ther_____ DATE DELIVERED:______________ DEL'D BY: ____________ REC'D BY: ________________ TIME: ____________________ ATTORNEY: MR. MICHAEL H. STEINBERG DOCUMENT: Transcript / Exhibits / Disks / O ther_____ DATE DELIVERED:______________ DEL'D BY: ____________ REC'D BY: ________________ TIME: ____________________ ATTORNEY: DOCUMENT: Transcript / Exhibits / Disks / O ther_____ DATE DELIVERED:______________ DEL'D BY: ____________ REC'D BY: ________________ TIME: ____________________ ATTORNEY: DOCUMENT: Transcript / Exhibits / Disks / O ther_____ DATE DELIVERED:______________ DEL'D BY: ____________ REC'D BY: TIME: DATE DELIVERED:________________________ Dr. Jacob McDonald Lovelace Respiratory Research Institute 2425 Ridgecrest Drive, Southeast Albuquerque, New Mexico 87108 RE: CASTELLUCCI vs. VOLKSWAGEN DEPOSITION OF: JACOB McDONALD, M.D. DATE TAKEN: August 16, 2017 Dear Dr. McDonald: At the time of the above deposition/sworn statement, it was requested that the witness read and sign his/her transcript. _____Enclosed is your copy of the transcript with the original signature page. Please ask the witness to read the transcript, make any corrections on the signature page, and return the original signature page to our Albuquerque office. _____Enclosed is your copy of the transcript. Please read it, note any corrections on the signature page, and return the original signature page to our Albuquerque office. You may keep the transcript for your files. _____The transcript is now ready to review. Please contact our Albuquerque office, 505-843-9494, to make arrangements to have the transcript read and signed. If you are outside the Albuquerque area, please call 800-669-9492. _____The transcript is now ready for review. Please remit payment in the amount of $______ to our Albuquerque office. As soon as payment is received, your transcript will be delivered. If you choose not to pay, please contact our Albuquerque office, 505-843-9494, to make arrangements for signature. _____Trial in this matter is set for__________ . If the transcript has not been read and signed before that date, the original will be filed without a signature. Other: The New Mexico Rules of Civil Procedure provide the witness 30 days, in most instances, from the receipt of this letter to read and sign his/her transcript. If he/she has not read and signed the transcript in that time, we will file the original transcript without the signature page. Sincerely, BEAN & ASSOCIATES, INC. JOB NO.: (8637L-PJ) MAGNA Legal Services (Pages 182 to 2019) Page 1 ________A________ ability 11:14 31:2 181:10 able 19:24 23:22,23 33:13 44:15 45:1 75:18 76:15 77:3 78:13 80:9,10 91:17 93:20 102:9 102:10 112:23 113:5 115:24 125:24 143:7 169:22 abnormalities 19:2 abstract 29:11,22 academies 12:3 accents 13:15 accepted 109:15 accommodating 5:19 account 19:13 20:14 57:19 178:5 accumulating 132:8 accumulation 132:7 accurate 115:9 129:23 170:11 174:8 accusation 99:16 accused 100:5 achieve 56:4 60:21 acknowledge 124:8 activated 173:5 active 83:1 actual 47:22 67:12 67:16 141:20 acute 3:9 4:22 27:25 32:25 35:20 54:21 add 36:17 57:13 75:7 addition 107:6 additional 23:13 26:13 81:4 103:16 128:5 address 56:9 148:7 addressed 174:4 adds 132:5 adjust 60:17 adjusting 153:2 administer 181:7 admitted 105:3 107:22 174:9 advances 121:12,15 123:4 146:24 adverse 79:13 109:1 aerosol 51:11 55:6 affiliation 13:22,24 afternoon 118:19 AG 177:13 age 34:25 agencies 144:22 agency 16:16 42:15 42:17,18 agent 23:3 80:7 Aggression 82:15 82:16 aggressive 83:6 ago 7:16 11:11 12:9 13:13 68:15 112:10 142:6 agree 18:4 29:11 49:8 51:22 56:15 62:5 63:2 64:9 83:25 87:3,22 90:21 96:10,16,20 97:2,17,24 98:4 98:11 101:10 106:21 108:16 110:19 112:6 114:5,24 167:9,10 agreed 18:10 70:5 97:6,20 agreement 3:19 49:6 agrochemicals 8:9 Ah 143:5 ahead 14:19 32:16 52:15 103:15 122:7 138:20 145:10 150:6 air 20:8 28:25 29:1 29:4 31:5,12 36:15 55:20,21 56:11,12 75:7,8 80:17 125:2,12 127:7 134:18 airway 3:18 39:15 76:15,19 Airways 4:23 Albuquerque 1:17 1:24 178:15 2018:3,12,14,16 2018:17,20,21 alert154:20 aligned 88:13,15 150:11 151:24 153:3 alignment 88:14 152:3,9 153:1,3 allegations 102:22 106:20 137:19 172:8,12 174:6 alleged 170:10,12 173:13 174:11 allow 42:18 allows 45:11 132:6 ambient 29:4 31:5 31:12 127:7,23 ambiguous 114:8 America 1:11 87:5 87:9,16,18,19,24 96:12 177:12 180:11 182:1 2017:5 American 4:21 100:12 America's 39:5 amount 13:5 33:25 34:22 57:14 61:11 79:5 82:8,10 120:23 124:19 127:2,17 129:10 134:25 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appropriately 91:19,21 95:16 approve 162:16 approved 163:12 approximately 15:22 50:11 143:1 143:2 153:17 area 127:10 156:11 2018:18 areas 17:7 arena 6:8 argumentative 69:19 98:21 107:16111:1 114:7 arrangements 2018:17,22 article 3:8,12,15 4:22 16:20 113:22 177:21 articles 28:5 34:10 137:24 artifact 18:24 23:20111:9 artificially 104:7 MAGNA Legal Services Page 2 ASAP 62:10 64:21 asked 24:15,16,21 24:22 107:12 122:12 143:16,17 158:1 171:9,15 asking 32:5 78:11 109:18 asleep 77:6 aspect 33:7 aspects 39:25 46:15 164:18 assemble 14:5 assembly 65:23 assess 8:8 19:24 23:23 154:12 174:23 assessed 24:2 assessing 23:22 assessment 8:2,7,8 9:7 17:1021:16 21:20 80:24 111:4 125:5 126:7 assessments 104:6 associated 8:14 12:12 17:11,11,19 20:1,1922:7,11 24:4,9 28:23,24 28:25 29:4 30:17 41:8 42:3 47:25 109:7 122:17 142:23 143:3 Associates 1:22 181:16 2019:9 association 3:8 14:3,6 associations 11:24 144:13 assume 47:10 102:5 102:7,16 106:19 110:9 170:11,15 171:24 assumed 171:19 assumes 57:2 assuming 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building 9:12,15 bunch 55:11 119:17 burn 132:6 burning 158:21 159:23,25 business 102:4,9 busy 127:10 buy 45:2,7 47:13 buzz 9:14 bystander 125:7 C C 2:1 CA 2:14 calculator 139:15 calibration 173:1,2 173:6 call 24:8 44:24,24 57:25 103:1 104:25 2018:18 called 8:11 23:17 25:6,7 47:16,16 98:13 136:25 147:8 162:7 173:4 calling 23:14 172:17 calls 14:17 26:14 41:13 95:1 103:23 113:14 170:21 calm 77:18 cameras 9:14 campus 38:2,3 Canal 2:17 cancer 16:8,17 17:8 17:9 18:20 19:7,8 19:12 20:3,13 22:2,24 24:4 25:22 27:4,16,21 27:24 119:13 121:21 122:4 128:21,24 146:2 cancer-causing 23:3 capital 100:19 CAPTION 2017:4 car 50:19,21 52:3,4 54:4 66:2 100:18 141:20 151:13,24 152:16,23 CARB 142:12 144:18 145:10,19 173:25 carbon 120:11 123:17,17 143:14 143:14 165:16 carcinogen 16:4 18:5 20:9,14,18 22:10 36:13,18,20 42:10,10 43:19,21 carcinogenic 16:19 26:25 42:4 cardiovascular 24:3 28:15,20,23 29:9,13 30:9,18 30:24 33:1,9,12 cardiovascular/n... 119:15 care 4:22 48:22 59:5 162:10 163:2 175:3 career 95:5 119:2 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91:25 101:3 107:14 147:20 148:3 180:3 cleaner 141:12 148:4 cleanse 132:9 clear 17:4 41:23 73:10 90:24,25 145:7 176:23 clearly 156:13 client 7:18 85:4 clinical 35:16 36:14 37:11,14,14,23,23 37:25 38:1 79:24 126:11 close 61:16 clue 60:6 117:15 CL-2016-9917 1:7 180:7 CL-2017-288 1:10 180:10 CM181:16 collaboration 50:19 colleagues 56:20 99:14 collective 83:18 96:5 114:22 colloquy 57:1 58:11 colonies 86:11 colony 86:7 column 84:16,19 130:21 165:8 columns 84:12 combination 113:2 165:11 combustion 124:14 com e74:15 83:16 85:23 95:7,11 101:22 104:18 114:10 116:22 comes 56:12 124:19 coming 7:3 22:7 54:4 70:4 85:18 97:3 110:7 178:19 comments 4:2 83:22,23 84:4,8 84:11 committee 16:11 16:12,14,22 17:15 162:11 committees 12:3 common 89:22 153:14 commonly 5:17 80:6 120:8 communicate 163:10 communicated 85:4 communication 60:8 communications 66:13 community 11:21 14:13 121:11 companies 6:15 95:10 company 6:4,10,11 41:2,5,11 70:8 comparable 68:12 68:22 69:6,12 compare 52:3 55:14,15 57:17 71:2 73:11 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21:10,1726:7 27:8,9,14 32:15 35:12,16,18 36:2 45:15 51:12 85:13 122:16 123:1,2 conducting 8:13 12:11 30:10 34:20 46:18 169:24 conferences 12:4 confidence 143:9 confident 107:20 confined 54:18 confirm 66:25 146:4 149:20 confusing 113:9 Congress 2:4 180:19 conjecture 125:20 connect 47:19 connected 91:14 connection 104:24 119:21 125:21 128:9 145:2 153:15 158:6 162:3,12 164:11 173:18 consensus 17:17 consequences 125:19 conservative 20:6 20:10 24:13 25:7 consider 102:25 140:4 167:16 considerably 135:1 considering 106:5 106:9 150:16 consistent 141:8 144:8 consists 165:11,15 166:22 167:1 consortium 12:14 constantly 80:20 146:21 152:8,10 constituent 119:5,7 154:24 constituents 55:16 126:16 154:13 consumption 30:18 169:21 contact 87:4 163:11 2018:16,21 contacted 105:5 contacts 44:10,15 44:18 contained 163:15 174:7 contention 123:8 123:21 context 7:20 8:6,15 8:17 9:4 29:17 32:12 35:6 107:4 109:23 127:10 158:25 159:4 175:13,18 continued 105:19 continues 110:12 contract 6:2,6 7:24 34:1 50:6,10,11 50:15 58:7 67:3,3 94:23 contracted 181:11 contradict 16:2 contrary 105:6 110:12 contrasted 165:18 contributed 33:23 33:25 contributing 33:23 contributions 125:25 contributor 34:4 control 55:19 98:7 MAGNA Legal Services Page 5 98:12 113:7 172:14 173:8 176:5 controllable 136:3 controlled 42:9,14 77:5 126:4 127:4 controlling 136:5 controls 9:6 21:5 93:15 121:12 128:5 controversial 20:5 controversy 138:25 conversation 15:4 24:19 40:23 conversations 43:1 cooler 137:24 Coordinated 1:7 180:7 coordinator 64:12 copies 180:21 copy 115:1 181:5 2018:10,13 copying 51:20 corner 125:16 correct 6:20 11:16 11:17 25:9 32:9 43:9 47:11 48:18 50:8 51:23 62:3 62:16,22 65:9,14 66:3 73:14 74:24 75:23 87:7 88:2 88:14 91:1095:7 96:3,13,18,23 97:11 98:15,17 99:18 100:1 105:20 106:2 107:1 111:3 112:13 116:13 117:9 119:6,24 120:3 121:25 122:11,13,18 123:18,19 129:4 130:23,24 132:13 132:14 133:3,8,13 134:23 135:2,6 138:11 143:24,25 144:2,19,25 145:17 146:6,7,12 147:18 148:8 151:15 152:12,14 152:17,19 153:5,6 153:8,15 154:3,16 158:2 161:16 163:8,20,21 164:16,19,20 165:3,4,7,18 166:4 167:20 168:22 171:22 172:5 181:9 182:20 CORRECTION 182:12 corrections 2018:11,13 correlated 168:22 168:24 correlations 19:24 correspondence 68:18 69:22 cost 181:4 counsel 180:22,23 countries 123:13 country 69:15 COUNTY 1:2 180:2 couple 9:25 11:11 12:7 13:14 25:4 26:18 28:6 54:7 75:15 76:7 106:15 112:16 123:1,2 139:25 151:6 coupled 107:10 course 21:1 56:18 66:5 70:9 104:3 117:18 119:2 135:13 141:13 160:10 166:9 177:9 court 1:2,23 109:15 145:4 180:2 181:13,17,17 co-founded 14:23 CRAIG 2:8 craig@patrickla... 2:10 crazy 99:22,25 100:2,4,5,8,13 create 14:12 15:15 75:3,4 81:22 creating 80:20 creation 147:4 credibility 23:22 criteria 145:23 Critical 4:22 CROMWELL 2:13 crossover 168:1,10 169:1 crosstalk 109:19 159:14 cross-over 3:13 34:11 143:19 crowded 124:24 cubed 129:4 cubic 51:12 54:14 128:19,20,25 130:6 Cummins 22:4 25:13,16,17,20,24 71:17 95:9 148:13 175:11 curious 150:21 current 5:23 6:22 6:23 20:23 22:22 123:22 171:3 customer 93:1 CV7:7 cycle45:13 48:6 81:21 88:15,16 89:2,4,6,12,16,18 89:22,25 90:2,4 90:10 93:8,10,11 93:12,23 150:12 150:13,18,19,20 173:12 cycles 88:23 89:19 94:3 D D 2:22 Dallas 2:9 Daniel 5:22 data 32:13 91:7,12 91:17 94:15 106:17 110:7 116:25 129:16 130:1,8 133:13 134:5 135:23 139:22 140:19 171:20 date 181:23 182:23 2017:9,14,19,24 2018:1,6,24 dated 63:15 67:7 73:24 83:21 94:12 108:17 116:24 173:24 dates 154:1 day 59:11,11 99:24 139:24 days 2019:4 DE 165:11,25 166:22 167:1,5 deal 19:2 38:9 96:7 dealing 42:23 47:25 55:9 60:11 dealings 173:18 Dear 2018:7 debate 19:21 debates 85:21 deceive 175:23 deceived 176:10 177:11,13,14 deception 177:12 decide 55:12 decided 24:25 38:8 38:14 deciding 13:7 decision 39:4 41:2 89:12,15 decisions 44:4 decrease 21:6,6,7 27:20 decreasing 21:8 default 89:21 100:19 155:22 defeat 100:23,24 113:11,22 137:1 137:11,20 138:2 138:11,15 155:16 155:21,25 156:4 157:5,11,21 158:12 170:20 171:20,24 172:2,8 174:16 177:9,17 177:20 defeating 106:10 Defendant 1:12 2:12 180:12 define 120:10 defines 16:19 degree 143:8 157:4 degrees 157:8 delayed 78:24 79:2 deliverable 105:21 delivered 180:22 181:3 2017:9,14 2017:19,24 2018:1,20 delivery 87:5 117:10 DEL'D 2017:9,14 2017:19,24 demonstration 55:13 department 39:5 dependence 19:19 depending 9:1 56:14 124:13 173:11 depends 119:12 124:17 125:5 126:18 127:15 deponent 24:21 deposition 1:15,19 3:4,7 9:21 10:1,15 18:8 40:19 94:10 99:6 117:18 119:18 132:19 173:17,20,23 174:10 179:20 MAGNA Legal Services Page 6 180:14,16,23 181:5,8,10 182:3 182:10,21 2018:5 depositions 24:20 deposition/sworn 2018:8 described 14:2,8 97:9 113:22 describing 52:1 design 55:8 131:12 168:1 designated 43:19 43:20 designation 20:18 21:19,25 39:3 150:19 designs 168:10 desired 17:18 despite 178:15 detail 138:8 details 33:25 62:9 139:4 detect 143:7 determination 169:1 determinations 26:8 144:23 145:3 determine 86:1 determined 86:3 determines 16:18 development 8:3 device 137:1,11,20 138:2,11,15 155:16,22,25 156:4 157:2,5,11 157:21 158:12 170:20 171:21,24 172:2 174:17 175:18 177:9,18 177:20 devices 172:9 diagram 38:19 diagrams 38:15 dialogue 57:4 58:5 58:13,18 70:16 81:17,20 106:13 dictate 69:17 dictated 89:6 diesel 1:4 3:9,14,16 5:17 8:13,15 10:2 12:12,23,25 16:3 18:4,19 19:16 20:4,7,20,22,23 20:25,25 22:3,5 22:23 23:2,7,24 24:5 25:13 26:2,7 27:4,9,15,15,18 27:19 28:16,20 29:2,7,12 30:18 31:3,7,11 32:13 32:15,19,24 34:11 35:1,2,19 36:2,12 36:14 37:1,15,16 37:20 38:1,8 39:14,21 42:4 43:13 45:16 51:6 52:3,3,21 53:7,12 55:10,17,18,22 56:22,22 60:22 69:14 71:1,2,3,7 72:13,23 73:8,12 73:13 77:9 78:23 79:6,7 80:15 87:6 87:11,23 88:10,11 90:7,16,17 91:25 97:4,25 98:20 101:3,20 103:10 103:11 107:14 109:2 110:13 119:3,4 120:1,8 120:14,15,15,24 120:25 121:10,19 122:17,22 124:12 124:15 125:1,12 125:21,25 126:8 129:5,9 134:15,20 134:21,22 136:10 136:20 138:25 139:1 141:4 143:20 144:11,12 145:20,24 146:11 146:12,14 147:20 148:5 161:8 164:14,18,24 165:10,10 170:7 170:17,18,25 180:4 diesels 91:25 119:8 147:17 differ 71:3 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disease 35:6 Disks 2017:8,13,18 2017:23 displacement 61:2 displayed 24:7 disposition 181:13 dispute 87:8,12 disputed 112:10 disputing 85:18 dissolved 117:11,14 dissolving 117:16 distillate 124:16 distress 162:25 disturbing 102:16 Doctor 52:11 document 28:10,12 40:20 49:15 51:19 59:13 83:13,14 84:3,6 98:24 115:23 2017:8,13 2017:18,23 documented 169:10 documenting 67:2 documents 66:20 116:7 145:23 148:11,11 150:3 174:1,4,7 178:21 doing 7:24 13:3 15:19,25 21:24 23:22 34:23 36:14 37:21,22 38:23 39:2 42:9 43:17 44:16 46:10 48:7 51:5 54:3 57:8 61:13 72:3 76:11 76:13 86:10 96:1 100:6,14 103:1,4 103:6 112:22 131:13 136:8 141:17 142:9 151:4,12 157:22 175:14 domestic 26:2 dose 20:12 57:24,25 104:6 doses 29:9 31:8 32:9,15 35:20 doubt 167:18 doubting 26:5 dowel 74:21 Doyle-Eisele 110:2 Dr 5:6 40:9 94:8 116:1 118:19 145:11 162:1 169:8 2018:2,7 draft 67:11,24 68:22 69:4 110:10 111:22 drastic 135:16,20 156:24 drawing 76:3 drift 153:2 156:18 MAGNA Legal Services Page 7 drive 1:16 45:16 151:8 173:12 2018:3 driven 88:12 101:7 driver 93:15,19,22 driving 45:13 151:10 152:11 dropped 43:16 drove 65:25 66:2 drug 8:3,3 drug's 8:4 du 146:18 duly 5:2 Dunbar 115:17 duration 166:15 172:20 duress 162:25 duty 88:16 147:7 150:13 dwarfed 135:1 dyna 93:13 dynamometer 45:19 47:20 48:4 93:13 95:24 149:1 150:25 155:9,12 173:4 dyno45:7,25 46:3,9 46:21,25 47:4,17 47:17 48:9,10,11 48:17,20 60:17 73:20 74:13,15 88:12,14 90:9 92:22 93:25 96:1 98:5,7 101:4 131:7,23 136:7,12 137:12 148:19,19 150:24 151:8,14 151:17,25 152:10 152:23 153:4,18 154:14,22 155:4 155:14 156:3,15 173:2 dynos 47:13,15,16 153:7 E E 2:1,1,9,22 earlier 14:9 37:1 91:6 97:10 101:17 116:18 162:2 163:4 172:1 early 8:16 ease 172:16 easier 47:23 82:18 86:10,13 96:5 150:2 easily 137:1 East 2:14,17 easy 56:8 68:5 ECM 172:14,25 173:1,6 educational 7:10 effect 23:2 32:7,20 53:10 58:8 125:18 140:5,9,11 170:20 effectively 132:10 effectiveness 173:7 effects 3:16 9:1 12:7,12,14 13:11 14:9 15:21 26:23 32:25 33:1 39:14 79:13,19 80:21 109:1 126:20,21 128:3 141:4 144:19 146:20 149:9 168:12 169:2 efficiency 132:10 effort 122:19 Eighteen 48:17 either 7:4 15:13 25:6 42:20 43:6 45:16 48:5 75:3 81:19 154:19 elaborate 112:14 electronic 172:14 electronics 47:24 elements 121:23 125:25 143:12 eliminate 156:3 160:9 eliminated 69:10 email 3:20,21,22,23 4:1,4,14,15,16,17 Email(s) 4:19 emission 71:17 101:25 138:2,4 148:22 172:16,24 173:7 emissions 10:3 21:6 21:13,1464:14 70:20,24 72:12 73:11 75:5 88:11 90:8,17 99:16 100:23,24 101:21 104:4,7,12 105:23 106:11 107:14 110:23 126:15 136:12,12,16 137:12,12 141:6 145:20 146:5,12 148:3 154:6,16,25 155:11 157:17,18 158:18,19,20 159:2 169:12,17 169:20 170:1,13 170:17,19 172:23 173:1,3,10 174:18 emitting 104:13 169:12 emphasized 88:13 employed 15:10,11 181:11 employee 15:7 49:21 enable 51:9 Enclosed 2018:10 2018:13 encounter 20:15 encountered 166:1 encourage 117:6 ended 13:7,7 33:13 44:14 61:13 78:15 86:15 endothelial 3:10 34:16 35:3,4 ends 11:12 engaged 25:11 engine 22:4 25:14 31:4 32:24 47:16 47:17,18,21 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3:19 11:20 12:7 14:3,5,15,23 15:5,12,1923:11 26:13 27:23 30:13 33:10,16,23 34:1 35:9,13,14,15 36:6 40:1 48:8 50:7 58:15 67:3 69:16 81:12 84:9 90:15,22 92:22 117:11,14 163:24 Europe 13:4 27:10 European 37:4 Europeans 37:7 euthanized 78:13 evading 99:16 evaluate 8:4 122:16 140:22 160:14 162:20 evaluated 20:21 164:17 MAGNA Legal Services Page 8 evaluates 136:16 evaluating 123:2,6 139:14 142:22 162:19 evaluation 8:2,7 9:7 146:2 157:16 evaluations 125:21 event 81:9 131:10 131:14,20,22 132:2 133:15,19 134:8,11 175:6 events 133:21 134:6 138:24 everybody 38:11 39:2 42:22 179:12 179:15 everything's 31:18 95:12,15 evidence 17:6,7 20:21 22:7 57:3 63:6 89:1 97:13 111:2,6 122:3 124:1,3,22 126:11 176:9,16 evolved 123:12 evolving 146:21 exact 128:6 exactly 13:17,21 58:4 74:11 104:10 106:1 112:15 141:25 examination 2:24 5:4 118:17 169:6 177:3 181:1 example 7:16,18 21:24 71:2 127:8 127:8 128:21 excellent 168:11 excepted 181:11 excerpt 173:16 exchange 4:17 63:3 63:20 64:17 98:25 99:10 exchanges 59:21 excised 139:6 excuse 48:15 executive 15:7,9 exercise 38:17 exhaust3:9,14 8:13 8:15 12:13,24,25 16:4 18:5,20 19:16 20:4,20 22:3,5 23:24 24:5 26:9 27:18,19 28:16,20 29:2,7 29:12 30:18 31:3 31:4,7,11 34:12 35:1,2 36:2,14 37:1,15,16 42:4 43:13 53:7 54:4,9 55:10 77:10 78:23 79:6 80:15 97:4,7 98:14 101:20 119:3,4 120:8,14 120:15,16 121:19 122:17,20,22,22 124:12,17,19,20 125:1,12,22 126:1 126:8 141:4 143:20 144:11,12 144:16 145:24 154:13 161:8 165:10,11 170:25 exhibit 10:24 11:1 28:9,11 34:7,9 39:11 40:12,14,19 49:3,5 51:17,19 59:15,17 64:6,8 66:19,22,24 83:11 83:13 86:18,22,23 92:11,18 94:7,9 95:20,22 96:5,8,9 96:14,19 97:1,15 97:21 98:3,10 99:4,6 108:8,9,15 111:14,16,21 112:2,4,17,21 114:14,17 119:19 130:3,8,13,14 131:21 132:15,17 133:6 139:5 143:19 149:16,16 149:22,24 150:7 155:20 157:24,25 158:11 161:15 163:15 164:9 169:8 173:23 exhibits 3:6 181:5 2017:8,13,18,23 exist 19:20 20:16 existed 15:3 123:15 expect 101:24 170:18 expectations 112:11 expected 101:14 110:25 112:22 expecting 113:3 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35:15 remit 2018:19 remotely 66:9 remove 110:5 126:25 removed 106:8 repeat 14:21 19:5 79:2 84:5 repeated 36:8 repetitive 162:23 rephrase 10:7 report 17:11 24:10 24:14 35:7 67:7 67:10,12,12,16,19 67:22,25 68:10,22 73:18,24 74:25 75:9 86:20 87:3 87:21 88:6,7 90:14 105:4,9,15 105:22 106:22,22 110:10 111:22 112:9 117:10,13 117:19 128:16,17 130:9 133:10 150:7 171:17 173:19 181:8 reported 1:22 27:6 47:3 135:5 Reporter 145:4 181:17 reporting 1:23 25:8 27:2 110:18 181:17 reports 4:20 67:2 86:17,25 105:25 116:11,14 149:17 149:23 163:15 171:19 Report(s) 3:24 represent 5:14 7:23 8:22 66:25 67:9 118:20 138:14 173:23 174:17 representation 93:21 175:5,7 representations 74:2 representative 11:15 51:9 55:3 158:2 175:8,8 representatives 148:17 represented 180:23 represents 124:15 131:16 reputation 25:3 102:5,8 request 180:16 requested 26:13 81:12 85:7 94:14 181:1 2018:8 require 94:23 required 50:10 142:14 157:4 requirement 17:17 rerun 104:11 research 6:2,4,5,6,8 6:18,197:5 8:12 11:22 16:1723:15 30:24 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