FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`INDEX NO. 190183/2019
`RECEIVED NYSCEF: 04/12/2022
`RECEIVED NYSCEF: 04/12/2022
`
`Exhibit B
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`
`
`
`
`
`
`
`April 11, 2022
`
`
`
`Mr. Ryan Hersh, Associate
`Clyde & Co., US LLP
`405 Lexington Avenue, 16th Floor
`New York, NY 10174
`
`
`RE:
`
`
`
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against- A.O. Smith Water Products Co., et al.,
`Defendants.
`Supreme Court of the State of New York, County of New York
`Index No.: 190183 / 2019
`
`
`
`
`Dear Mr. Hersh,
`
` I
`
` have reviewed the materials provided by your office or representatives, with regard to the above-
`referenced case on behalf of your client, Burnham, LLC.
`
`Qualifications
`
`I am a Board-Certified Industrial Hygienist (CIH) with over twenty-five years professional experience. I
`previously served as an Occupational Safety and Health Administration (OSHA) Health Compliance
`Officer, and I have comprehensive industrial hygiene expertise involving respiratory protection, exposure
`characterization, indoor environmental quality, chemical and physical agent exposure assessments,
`environmental and occupational risk assessments and occupational safety and health training and regulatory
`compliance. My professional experience involves service in both private and public sectors.
`
` I
`
` am a former NIOSH research award fellow and have guest lectured in the Department of Environmental
`and Occupational Health at the University of South Florida, College of Public Health, in Tampa, Florida.
`My academic experience includes a Bachelor of Science degree in Environmental Health from East
`Carolina University in Greenville, North Carolina, and a Master of Science in Public Health degree and
`Ph.D., degree in Industrial Hygiene and Safety Management from the University of South Florida, College
`of Public Health. My opinions in this matter are stated within a reasonable degree of professional and
`scientific certainty.
`
`OEH Solutions, LLC - 352 North Caswell Road, Charlotte, NC 28204
`V +1 704.940.5472
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 2 of 24
`
`
`
`
`State of the Art
`
`Investigation into any potential health effects associated with exposure to high concentrations of asbestos
`reportedly began in the late 1800s with a report on asbestos dust within factories. However, it was not
`generally accepted that exposure to asbestos could cause fibrosis until the mid-1920s to 1930.
`
`Early studies into the health effects of asbestos exposure included individual case reports and investigations
`of potential asbestos-related disease associated with certain industries in Great Britain. Merewether and
`Price (1930) focused specifically on the asbestos-textile industry. At the conclusion of their study,
`Merewether et al. noted their belief that the “outlook for preventative measures is good. That is to say that
`in the space of a decade, or thereabouts, the effect of energetic application of preventative measures should
`be apparent in a great reduction in the incidence of fibrosis.” Merewether et al. attributed the immediate
`temporary rise in the incidence of fibrosis to “the accumulated damage, partly a legacy of the war years,
`yet with the passing the peak, a steady fall should ensue.” In other words, the existing belief at the time was
`that the application of some reasonable control measures would prevent new cases of asbestosis.1,2,3,4,5,6,46,49
`
`In 1935, Lanza, McConnell, and Fehnel published a report investigating asbestos dust as an occupational
`hazard in the United States asbestos industry. The authors worked with the Metropolitan Life Insurance
`Company. The study focused on conditions in mines and mills in Canada and fabricating plants (e.g.,
`textiles) in the United States. The authors observed that several articles describing asbestos-related
`pneumoconiosis had appeared in English medical journals, but the matter had not been similarly studied in
`the United States: “[W]hile in one or two isolated instances the occurrence of this type of pneumoconiosis
`had been described in American Journals, the industry itself appeared to be quite uninformed of the
`existence of any such occupational disease.” This study indicated cases of asbestosis may occur with
`exposure to high concentrations of asbestos; however, Lanza et al. concluded it was not practical to establish
`standards at the time.7
`
`In the United States, Dressen et al. (1938) published a study of the asbestos-textile industry under the
`authority of the U.S. Treasury Department’s Public Health Service. Like its counterpart in Great Britain,
`the Dressen et al. study was focused on a specific industry where concentrations of dust were of concern.
`This study of four asbestos-textile plants did not evaluate exposure to the end user of asbestos products,
`evaluating only those in the textile industry working with raw asbestos fibers. Similar to the conclusions
`
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 3 of 24
`
`
`
`reached in the English study, the American researchers (Dressen, et. al.) concluded, “[I]f the dust
`concentration in asbestos factories could be kept below 5 million particles, new cases of asbestosis probably
`would not appear.”13
`
`Focus on asbestos exposure during the 1900s took a back seat to other more prevalent occupational hazards
`of the time, such as those posed by crystalline silica (e.g., tuberculosis). The attention paid to these other
`occupational hazards is evidenced in the literature of the period.12, 17, 46, 48, 49
`
`Of the relatively small number of articles concerning asbestos exposure, most were case reports and
`investigations of the period focused primarily on the mining, milling, and manufacturing of asbestos textiles
`and related products. Evaluations of the end users of asbestos-containing products went largely ignored in
`the United States until the mid-1940s, when a report by Fleischer et al. (1946) was commissioned by the
`United States Navy and published in the Journal of Industrial Hygiene and Toxicology. The report focused
`on the potential for asbestosis among those exposed to high concentrations of asbestos while engaged in
`activities related to pipe insulation at two historic Naval shipyards and two Naval contract yards.
`
`Beginning in the 1930s the United States Navy specified and approved the materials to be used during
`shipbuilding, repair, and maintenance. As early as 1934, the Navy specified amosite-felt insulation material
`for use on destroyer turbines. This product proved satisfactory and its use was expanded to other
`applications; amosite-felt insulation was eventually used on all combat vessels built before World War II
`(WWII). Pipe covering was specified by the United States Navy in 1937 and was used on the majority of
`vessels built during WWII. Water-repellent amosite felt was developed for Naval use in 1942, replacing
`horsehair cold-water insulation that tended to mold, rot, and harbor vermin.
`
`The Fleischer et al. study included field observations of work activities on board ships and in the fabrication
`shops located on the yards, measurements of dust, and medical evaluation of workers. Of the 1,074 workers
`evaluated medically, three had a diagnostic finding of asbestosis. Each of the three had worked as pipe
`coverers for more than 20 years, from which the authors concluded, “It would appear that asbestos pipe
`covering of naval vessels is relatively safe operation.”
`
`It was concluded that work on Naval vessels and Naval yards was not comparable to other industries, such
`as asbestos-textile manufacturing, but that certain operations on board should be equipped with exhaust
`ventilation to lower the total dust concentration. Fleischer et al. concluded it was impossible to establish a
`
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 4 of 24
`
`
`
`threshold value. The researchers were unsurprised by the low incidence rate of asbestosis among the pipe
`coverers and therefore stated that asbestos pipe covering in shipyards was “not a dangerous occupation.”
`This represented the last large-scale epidemiological study conducted in the United States involving the
`asbestos insulation trade until the mid-1960s.18,20,48,49
`
`In the 1930s and 1940s, the relationship between asbestosis and lung cancer in the United States was not
`established. What little information was available in the United States was based primarily on reports of
`individual cases at autopsy, which produced significant selection bias, and experimental animal studies.
`The first research to suggest a potential link between asbestosis and cancer was published in England: Wood
`and Gloyne (1934) commented on two cases of carcinoma in 43 cases of asbestosis at autopsy. In the United
`States, Lynch and Smith (1935) commented on one case of lung cancer with asbestosis, and Egbert and
`Geiger (1936) reported on another case.
`
`In Germany, Nordmann (1938) commented on two cases of lung cancer with asbestosis, and Nordmann
`and Sorge (1941) reported they had induced pulmonary carcinomas in two white mice following inhalation
`of asbestos dust. Given the hostile climate between the United States and Germany from the late 1930s
`through the end of World War II, it is unclear if this information was widely distributed or accepted outside
`of Germany. In fact, only Nordmann and Sorge claimed to have produced cancer in mice with asbestos,
`whereas similar research in at least five separate studies produced results which did not support a
`relationship between asbestos exposure in animals and the development of carcinomas.8, 9, 10, 11, 14, 15, 16, 19, 21,
`22, 23, 48, 49
`
`In 1955, Sir Richard Doll conducted an epidemiological study in England, which was published in the
`British Journal of Industrial Medicine. Doll’s study was the first to develop an incidence rate by comparing
`mortality rates in workers exposed to asbestos with a control group in the general population. Doll
`concluded excess deaths in asbestos workers (with at least 20 years of asbestos exposure) was due to lung
`cancer; all the cases “were associated with the presence of asbestosis.” Doll believed that much of the
`excess was due to exposures which occurred before the adoption of asbestos standards for the asbestos
`textile industry and that these measures had progressively lessened the “incidence and severity of
`asbestosis.” It was therefore believed that adherence to a recommended threshold value of 5 million parts
`per cubic foot (mppcf) would continue to reduce the incidence of asbestosis and, by extension, the risk for
`lung cancer. A significant shortcoming of Doll’s 1955 study was the failure to control for smoking in either
`
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 5 of 24
`
`
`
`population. Smoking is now known to pose a greater relative risk for the development of lung cancer than
`asbestos exposure.
`
`The prevailing belief—that the pre-existing condition of asbestosis was a requirement for the development
`of lung cancer—was echoed by researchers of the time, including Dr. Wilhelm Hueper, chief of the
`Environmental Cancer Section of the National Cancer Institute at the National Institutes of Health. Dr.
`Hueper concluded, “Epidemiologic data available at present indicate that an increased liability to cancer of
`the lung is limited to the presence of asbestosis of the lung and does not extend to exposure to asbestos
`without the existence of a pneumoconiosis resulting therefrom.”24,25,26,48,49
`
`Hueper’s comments did not answer the relationship between asbestos and lung cancer, but rather reinforced
`the need for properly designed epidemiological studies. In 1956, Hammond and Machle wrote, “There are
`at present too few cases and too little epidemiologic data to establish a significant relationship” between
`asbestos and lung cancer. Further, the first two epidemiologic studies of similarly exposed workers
`conducted in the United States by Braun and Traun (1958) and Dunn et al. (1960) failed to demonstrate a
`significant increase in the incidence rate of lung cancer.27,28,29,30,48,49
`
`In 1960, a paper authored by Wagner et al. published in the British Journal of Industrial Medicine
`summarized a study of persons diagnosed with diffuse pleural mesothelioma. The studied population was
`suspected of having exposures to asbestos, specifically crocidolite or blue asbestos, in the North Western
`Cape Province of South Africa. Wagner et al.’s study was the first to establish an association between
`exposures to asbestos, specifically crocidolite, and diffuse pleural mesothelioma.31
`
`Other authors from this period, including Eisenstadt and Wilson (1960), commented on two cases of
`mesothelioma in the United States. One of the case subjects reportedly had worked long-term with asbestos.
`However, the pathologist who reviewed the autopsy considered it “very unlikely that the pathogenesis of
`the tumor could be related to the asbestos fibers since they were located in the bronchioles and not in the
`pleura.” The lack of consensus within the medical community during this period delayed understanding of
`the relationship between asbestos and mesothelioma.32, 46, 47, 48
`
`In 1964, Selikoff, Churg, and Hammond, presented a series of epidemiological studies that reinforced an
`association between asbestos exposure and disease among asbestos-insulation workers. This study
`represented the first assessment on the end users of asbestos products. Selikoff et al. commented on the lag
`
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 6 of 24
`
`
`
`between initial suspicions and sound science while writing of the state of medical knowledge in the early
`1960s:
`
`With the admirable hindsight of fifteen years we can see that the essential
`evidence had already been reported, but not yet in a fashion to be
`universally convincing. With a few important exceptions, the evidence at
`that time rested on scattered reports of small numbers of cases, and the
`cases themselves were sometimes selected or simply those that happened
`to come to the attention of the writer.
`
`
`In the mid-1960s, Selikoff, et al. noted the “[i]nformation currently available concerning asbestosis has
`been derived largely from studies of employees of asbestos textile factories,” without a focus on exposures
`of end users of asbestos-containing products. These authors believed that pulmonary asbestosis put workers
`at an increased risk for lung cancer and mesothelioma. Selikoff, et al. conducted additional studies during
`the remainder of the 1960s and 1970s. Selikoff provided results of his studies during presentations at labor
`union events, and he participated with labor and industry to further evaluate asbestos exposures and disease
`prevalence. In 1972, Selikoff again commented on the association between cigarette smoking and lung
`cancer before an assembly of International Association of Heat and Frost Insulators and Asbestos Workers,
`stating that “asbestos workers in our country who did not smoke cigarettes didn’t die of lung cancer.”
`33,34,35,36,37,44,46,47,48
`
`As late as 1972, Selikoff, et al. reported the health issues specific to smoking as a confounding factor with
`respect to asbestos disease. Selikoff further reported carcinogenicity factors, such as fiber type, as equally
`important yet poorly understood. In regard to asbestosis, lung cancer, and mesothelioma, many of the
`authors and researchers of the period routinely evaluated patients or reviewed autopsies of cases in which
`lung cancer or mesothelioma were suspected or confirmed yet underlying asbestosis was nearly always
`present. Lung cancer and mesothelioma were believed to be a complication of asbestosis: if exposures to
`asbestos concentrations could be maintained below the prevailing recommendations of the period, then
`cases of asbestosis could be prevented; and if asbestosis was prevented, then logically so would the
`complications of lung cancer and mesothelioma. 43,46,47,48
`
`Asbestos Recommendations and Standards
`
`In 1946, the Subcommittee on Threshold Limits of the American Conference of Governmental Industrial
`Hygienists (ACGIH) established a list of occupational-exposure limits for 148 compounds, which were
`referred to as maximum allowable concentrations (MAC). This initial list included a value of 5 million
`
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 7 of 24
`
`
`
`particles per cubic foot (mppcf) for asbestos, which was not specific to asbestos or fibers. The occupational-
`exposure limit for asbestos was based on the value established by the Department of Labor in 1935 for dust
`containing a high percentage of free silica. In 1956, the term maximum allowable concentration was
`replaced by the term threshold limit value (TLV). The new recommendations from the ACGIH were based
`on time-weighted averages of exposure over an eight-hour period. This TLV value would remain unchanged
`until 1970. It was not until the late 1960s and early 1970s that the membrane filter method for collecting
`and analyzing samples garnered widespread acceptance. This analytical method, still in use today, reports
`results in fibers per cubic centimeter of air (f/cc). Like the preceding recommendation (mppcf), the measure
`of f/cc was not and is not specific to asbestos fibers. Most of the earlier research, which studied asbestos
`concentrations, utilized methods that were not specific to asbestos dust or asbestos fibers.40,41,42,45
`
`In December 1970, President Richard M. Nixon signed into law the act responsible for establishing the
`Occupational Health and Safety Administration (OSHA). In 1971, OSHA promulgated a series of
`permissible exposure limits (PEL) and occupational standards for various compounds, including asbestos.
`This is the first federally enforceable asbestos standard applicable to private industry in the United States.
`The initial PEL for asbestos was 12 fibers per cubic centimeter of air (f/cc), based on an eight-hour time
`weighted average (TWA). The method of analysis was not specific to asbestos fibers.
`
`In December 1971, OSHA requested an emergency temporary standard (ETS), specifically to lower the
`asbestos PEL to 5 f/cc (effective June 1972). In October 1975, OSHA proposed to again reduce the PEL
`“to otherwise revise and tighten the asbestos standard to protect employees against carcinogenic effects of
`asbestos.” No hearings were held on the proposal. In 1976, the OSHA PEL for asbestos was reduced to 2
`f/cc. In 1983, OSHA once again issued an ETS to reduce the asbestos PEL to 0.5 f/cc, but a federal court
`invalidated this ETS in 1984. In 1986, OSHA lowered the asbestos PEL to 0.2 f/cc, and in 1994, OSHA
`further lowered the asbestos PEL to the current allowable level of 0.1 f/cc (or 100,000 fibers per cubic
`meter based on an either-hour TWA).50
`
`Fiber Type & Possibility of Release
`
`Studies have shown that the development of asbestos-related mesotheliomas varies based on the type of
`asbestos. Generally, asbestos can be divided into two distinct asbestiform mineral groups: serpentine and
`amphibole. The four most common types of asbestos are chrysotile, amosite, tremolite, and crocidolite. The
`
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 8 of 24
`
`
`
`amphibole forms of asbestos have been found to be strongly associated with the development of diseases
`such as mesothelioma. 52,53,54,55,56,57,58,59,60,61
`
`Exposures to asbestos fibers occur primarily through inhalation. The fibers must therefore become airborne
`in some form. Asbestos-containing material (ACM) is any material containing more than one percent
`asbestos (as determined by polarized light microscopy). Friable ACM is an asbestos-containing material
`that, when dry, may be crumbled, pulverized, or reduced to powder by hand pressure alone. Most historic
`thermal system insulation fits within this category. Under the National Emissions Standards for Hazardous
`Air Pollution (NESHAP), non-friable ACM is divided into two categories. Category I non-friable ACM are
`asbestos-containing resilient floor coverings (commonly known as vinyl asbestos tile (VAT)), asphalt
`roofing products, packings, and gaskets. These materials rarely become friable. All other non-friable ACM
`are considered category II non-friable ACM.62,63,64,65,66,67,68,69
`
`Mr. Michael Butler
`
`I reviewed the following materials related to this case:
`
`●
`
`●
`
`●
`
`Summons and Complaint
`
`Plaintiff’s Answers to Interrogatories (A);
`
`Request for Production of Documents
`
`● Deposition of Kenneth M. Butler - Vol. I - January 26, 2021 (B);
`
`● Deposition of Kenneth M. Butler - Vol. II - January 27, 2021 (C); and
`
`● Deposition of Kenneth M. Butler - Vol. III - January 29, 2021 (D).
`
`
`
`This report reproduces the various testimony, as recorded in the above-referenced documents. Unless
`otherwise indicated, all quotation marks in the report indicate the testimony of the deponent, the son of the
`plaintiff, Kenneth M. Butler.
`
`
`
`For the purpose of delivering my expert opinion, I have assumed that all factual assertions made in the
`above-referenced documents are true and accurate, to the extent they are not contradicted by other testimony
`or evidence. Note, however, that I take no position on the ultimate accuracy of the testimony.
`
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 9 of 24
`
`
`
`
`
`BACKGROUND
`
`Health
`
`Michael Butler was born in 1943 in County Louth, Ireland. (A: 2; C: 181) According to the answers to
`interrogatories, Mr. Butler was diagnosed with mesothelioma in June 2019. (A: 6) When asked if Mr. Butler
`underwent radiation, Kenneth Butler, Mr. Michael Butler’s son, indicated “I don’t know the specifics of
`[his treatment].” (B: 132) Mr. Butler died at North Shore Hospital on an unspecified date. (B: 17, 126, 131)
`
`
`
`Mr. Butler smoked approximately one-half pack of cigarettes per day from 1964 to 1979. (A: 8)
`
`
`
`Family
`
`Mr. Butler married his first wife, Kathleen, in approximately the mid-1960s and divorced at some point
`thereafter. (B: 18-19) They had three children: Kenneth Butler, born approximately 1969; Michael Butler,
`born approximately 1972; and Brian Butler, born approximately 1974. (A: 3-4) Mr. Butler married Moyra
`Butler on August 2, 1990. (A: 3; B: 22) They had one child: Patrick Butler, born approximately 1993. (A:
`3-4)
`
`
`
`According to the answers to interrogatories, Mr. Butler’s mother died of lung cancer in 1968. (A: 3)
`
`
`
`Union
`
`According to the answers to interrogatories, Mr. Butler was a member of the International Union of
`Operating Engineers, Local 30, from 1966 to 1971. (A: 12)
`
`
`
`General Information
`
`Mr. Butler attended high school in Ireland, but Kenneth Butler was unsure of his graduation status. (B: 35)
`Mr. Butler took necessary classes to obtain a heating and air conditioning certification at a trade school. (B:
`35-37)
`
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 10 of 24
`
`
`
`
`
`Mr. Butler lived at the following locations during his lifetime: (A: 4-5; B: 31-34; C: 181)
`
`• County Louth, Ireland (1943-1965)
`
`• Queens, New York (1965-1968)
`
`• Woodside, Queens, New York (1968-1971)
`
`• 1st Avenue, Whitestone, Queens, New York (1971-1991)
`
`• Huntington Road, Garden City, New York (1991-present)
`
`
`
`WORK HISTORY
`
`JOHN F. KENNEDY AIRPORT (1965-1966)
`
`Mr. Butler was a security guard at John F. Kennedy Airport from 1965 to 1966. (A: 22) There was no
`testimony regarding this employment.
`
`
`
`MUSEUM OF MODERN ART (1966-1971)
`
`Mr. Butler was an operating engineer at the Museum of Modern Art in New York, New York from 1966 to
`1971. (A: 22)
`
`
`
`MUSEUM OF NATURAL HISTORY
`
`Kenneth Butler believed that Mr. Butler worked at the Museum of Natural History at some point in the
`1960s. (B: 38-39) Kenneth Butler did not know how long Mr. Butler worked at this location or what job
`duties he performed there. (B: 39)
`
`
`
`GLEN OAKS COUNTRY CLUB (1971-1973)
`
`Mr. Butler was a mechanical engineer at Glen Oaks Country Club from 1971 to 1973 in Long Island, New
`York. (A: 22)
`
`
`
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 11 of 24
`
`
`
`NORTH SHORE TOWERS (1973-1983)
`
`Mr. Butler was the chief engineer at North Shore Towers in Queens, New York from 1973 to 1983. (A: 22;
`B: 40-43) The facility was “a condo complex [that] has either two or three buildings, and it runs off of a
`cogeneration plant” located in a separate building within the facility grounds. (B: 46-48) The plant room
`contained boilers, pumps, valves, piping and generators. (B: 48; D: 344) Mr. Butler worked in the
`mechanical room, which had “pretty high” ceilings, but no windows, fan, or ventilation system. (B: 62-63)
`
`
`
`Mr. Butler performed repair and replacement work on boilers, diesel generators, turbines, HVAC
`equipment, pumps, and valves: "[T]here wasn't anything he didn't place his hands on when it came to
`[mechanics]." (B: 47; C: 245) He also supervised others doing the same type of tasks. (B: 60-61)
`
`
`
`Boilers
`
`Mr. Butler performed work on boilers located "pretty much as you walk right in the front door of the plant."
`(B: 47-48) His work included "dismantling [boilers], taking them all apart cutting them out, removing
`insulation from all the old equipment." (B: 49) Kenneth Butler did not recall how many times he observed
`his father remove a boiler at North Shore Towers. (B: 49)
`
`
`
`Kenneth Butler first identified boilers manufactured by A.O. Smith, Weil-McLain, and Iron Man or Iron
`Fireman as those Mr. Butler removed at North Shore Towers. (B: 49-50) Kenneth Butler recalled seeing
`the manufacturer’s name on the boiler itself. (B: 49-50) He did not recall the manufacturer name of any
`insulation found on the boiler. (B: 50) Kenneth Butler agreed he was familiar with Babcock and Wilcox
`boilers and Combustion Engineering boilers. (D: 345) When asked if he believed they manufactured any
`of the boilers at this site, Kenneth Butler said, “I believe so.” (D: 345)
`
`
`
`Turbines
`
`Mr. Butler performing maintenance work on turbines by replacing parts such as pumps and valves and
`removing insulation. (B: 55-56)
`
`
`
`
`
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 12 of 24
`
`
`
`HVAC
`
`Mr. Butler worked with HVAC equipment such as air handlers, and he removed and re-installed ductwork
`and insulation. (B: 57-58) The insulation came packaged in rolls and had to be cut to size. (B: 59) Kenneth
`Butler observed Mr. Butler cutting insulation from rolls into pieces of varying size using a utility knife. (B:
`60)
`
`
`
`Pumps and Valves
`
`Mr. Butler removed valves and “br[oke] down the flanges and stuff like that.” (B: 54) He took “apart the
`pumps and valves and the gaskets" on the nozzles of diesel generators. (B: 51) He also worked "rope
`gaskets" as well as insulation coverings leading up to the pumps and valves which had to be cut out. (B:
`51-52) Mr. Butler used socket sets, wrenches and powered reciprocating saws to remove the gaskets and
`flanges. (B: 54)
`
`
`
`BUTLER, INCORPORATED (1983- )
`
`Mr. Butler owned and operated Butler, Inc. in Queens, New York as self-employed HVAC contractor from
`1983 until his death. (A: 22; B: 64, 106-07, 126) He worked at various commercial and residential locations
`through the five boroughs and Long Island. (B: 66-67, 96, 106) Kenneth Butler estimated the shop was
`"probably 50 by 40, maybe" and ceilings were "about 12 foot" with two windows. (B: 107) The shop had
`an exhaust fan "that was ductworked into the shop and the main unit was located on the roof itself." (B:
`108) There was one set of doors and a large garage door that was typically open when working unless the
`weather was bad. (B: 108-10)
`
`
`
`Mr. Butler performed "heating, air conditioning, refrigeration, ventilation, HVAC work." (B: 64). He
`worked on rooftop units, condensing units, air handlers, evaporator units, furnaces, air conditioning units
`of various sizes, ductwork, boilers, hot water heaters, various pumps and valves, steam traps: "[A]nything
`that's associated with the HVAC equipment.” (B: 69-70, 147-149, 157-60; C: 182-85, 279-81) He
`performed both initial installation and replacement work, as well as repairs. (B: 96-97, 101; C: 215, 218)
`Kenneth Butler worked part time with his father while in high school and began working full times in
`approximately July of 1987. (B: 90) Mr. Butler brought on additional employees in the late 1980s or early
`1990s. (B: 91)
`
`www.OEHsolutions.com
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 04/12/2022 11:40 AM
`NYSCEF DOC. NO. 284
`
`INDEX NO. 190183/2019
`
`RECEIVED NYSCEF: 04/12/2022
`Expert Report of James L. Poole, Ph.D., CIH
`Re: Michael Butler and Moyra Butler, Plaintiff(s) -against-
`A.O. Smith Water Products Co., et al., Defendants.
`(on behalf of Burnham, LLC)
`April 11, 2022
`Page 13 of 24
`
`
`
`
`
`Boilers
`
`Mr. Butler repaired, removed and installed both packaged and sectional boilers of various sizes. (B: 75-76,
`98; C: 256-7) It took "anywhere from half a day to as much as a couple of days" to remove a boiler,
`dependin