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UPiITT•I3 STATES DISTRICT CfltIRT I3OATHEM DISTRICT 07 CALIPORt,tIA -..-o0!!M l F`Z,QS'A M" 8ROW'RR. ) ~ pla,intif f , D ~ vs. ~ No. 79-0384-8H , JOH2lS-MVZILE CflMRATIC9 r ) st &1.. ) ) Qs fandautts . ) ) DEPOS2TZOid OF M..ALCOLM T. DUNGAN Taksn before RITA A. ttELCI3, a Notary Public In and for the County of li9.amsda Stat. of California Junn. 20, 1979 CSR 1358 AIKEN & CISTARO CERTIFIED SHORTHAND REPORTERS 1404 FRANKLIN STREET OAKLAND, CALIFORNIA 94612 (415) 451-1580

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 •26 27 zcamiaation by Mr. Kazan Examinatica by Mr. Vindt IN DE X 28

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 26 27 28 DEPOSITION OF MALCOLM T. DiTNGAN Pursuant to Notice of Taking Depoaition, and on June Z0, 19a9, caamiencing at the hour of 10:00 a.m. thereof, ~ at the law offices of RAZAN & VENDT; 120 - 11th Street, Oakland, California 94606, before ne, RITA A, wELCg, a Notary Public in and-for the County of Alameda, State of California, personally appeared MALCQLM T.. DtJNGAN, produced as a witness in ths above-entitled action, who, being by me first duly saorn , was thereupon examined as a witness in said action. STEVEN 3tAZAN, Eaq., of EAZAN & VENDT, 120 llth Street, flakland, California, 94606, was present on beha3f of the plaintiff. MELI2iDA S. COLLIiiS, Attorney-at-Law, of BROIIECK, PHLEGER & 33ARRZSON, One Market Plaza, San Francisco, California 94105, was present on behalf of t4alcolm T. Dungan. CARL VENDT, Esq., appearing for ARTIIIIR J. MOORE, Esq., of the law offices of LKO0RE, CLIFFORD, WOLFE, LARSON f TRUTrtER, 201 - 19th Street, Oakland, California 94612, was present on behalf of Defendant Johns-Manvilla. ALSO PRESENTs Edwin J. Jacob, Esq. v-, 0 Janet S. McClendon v,> #,, --~f r.1 V4,+ V

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 26 27 28 It was stipulated that 1aTA A. NELCS may act as Notary Public and shorthand reporter in the taking of said deposS.tion That said deposition is taken pursuant to the provisio of the Rule 30 of the Federal Rules of Civil Procedure to the extent that those provisions ara applicable; That all objections, except as to the form of the question, and all motions are reserved until the time of trial; That in the sventlhe witness refuses to answer a question, it is deamed that the Notary Public has instructed the Witness to answer and that the witness refuses to answer; That the witness need not sign said deposition before the Notary-Public' That said deposition may be presented to the witness to be rsad, corrected and signed, and if it is not signed by time of trial, reasonable opportunity having been given to do so, a copy may be used at the time of trial with the same effect as thouqh it had been signsd. ---o0a--- s vy v3 _Ij rn

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 21 22 23 24 25 26 27 NALCOUk T. DCnQGa, sworn as awitnsas by the Notary Public, testified as foiloxss EXAMINATION BY IqFt. KAZAN Q; Would you state your full nam., please? L my UMe is Malcolm ftagan. MR. RAZANs Could ve have the appearances of everybody here, pleaee y: for the Reporter? MS. Ct9LL1N8 a 1Ky nam. in I4slinda S. Collins of the law firm of Bsrobeck, Phleger i Aarrison. I•m rspressAting R. J. Reynolds Tobacco Company and the witness. MR. JllCOBs Itw givsn my card to the Reporter. Edwin Jacob from Neti York. MR. 1XIAN: Do you represent R. J. Reynolds also? MR. JACDB: Yas. We're just appearing at the deposi- tion, however. MR. V8NDTs Carl Veadt on behalf of Johns-Manville, for the Arthur Moors office. 1K8. McCLENDCBi a Janet McClendon from New York. I'm associated with Mr. Jacob. MR. KAZAN: Q And Miss Collins is acting as your counsel for purposea of this deposition? lsS. CaLLIN3s Yes, I aa. MR. KA3Axr 4 You ! re an attorney licensed to practice in California? L Yes. 4 When were you first so licensed? 28 L 2n 1949.

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 26 27 4 rirs you licensed in aay other states? L No. ¢ Have you ever been licensed in other states? t I have bs.n admitted to various federal courts, and I have been admitted pro hac vice in dtate courts other than California. Q But you do not have -- L I•ia not a member of a Bar of any state other than California. - 4 And have you ever bssn the member of a bar other than California? L Not other than pro hac vice ,and admission to practice before various federal courts and federal agencies. For example, I had a-- you might call it a license -- I'd call it a certificat+s to practice befor. the Board of Appeals of the United States lxniqration and Naturalization Service. 4 And by whom are you employed at the present tin.? L I*m a a.aabsr of the firm of Brobeck, Phieg;r & Harrison. ¢ and how long have you been a member of that firm? L Since 1958. OL Were you associated with the firm prior to that? L Yes. ¢ When did you begin your association with the firm? L March 15, 1949. 4 And you are currently one of the counsel of record for R. J. Reynolds in the Brovner caset is that correct? L Yes. q 8avs you ever represented R. J. Reynolds in other 28

@ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 .24 25 26 27 28 litigation? 8. 1tes. 4 And did any of that litigation involve personal injury matters alleged to have bsan related to the use of tobacco? A. Yes. q Have you ever represent..d R. J. Reynolds in any other type of litigation? 8. Yes. 4 When did you first have occasion to represent R. J. Reyno 3. Approximately 1954. 4 And in connection with what kind of matter? 8a Th. first case was a suit in the United States District Court for the Northern District of California, Southern Division, alleging that the plaintiff had contracted disease from using tobacco products. 0 And what was the resolution of that matter? 8, It vas dismissed. MS. L•OS.LII4S: Coansel, I'a not sure of ths relevance of all this prior history of the Reynolds representation. M 7tRIANs I think I'm entitled to axplor* the background this witness has with R. J. Reynolds in an att*Mpt to explore also the basis of allegations he's saade in this matter. ¢ Rave you continuously represented R. J. Reynolds in the last 25 years? A. DiscvntinuOusly. 4 Have you ever represented R. J. Reynolds in any matter in which questions relating to asbestos wers used prior to the I ds? ~ ~ ~ Browner case? b I'm sorry. I didn't hear one word of the question. 4 Does that mean you didn't hear any of the question, or yo

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 26 27 28 misunderstood ons word? i There was ane word I misunderstood. (Record read.) T8Z MTNESS : That's what I thought I heard, -and I don't understand the question. 1dR. 141ZANa g6 Prior to your involvement in the Broo~ case, has your representation of R. J. Reynolds sver involved litigation in which questions relating to the effect of asbestos were involved? L Not to my recollection. 4 Can you tsll ms approximately how many cases involving R. J. Reynolds and tha alleged effecta of the usa of tobacco you've handled? L Pive or six. \ 4V`.1 p, Other than Brovner eei any of those cases currently pendin L Ies. ¢ And how many? L Cne. Q Did any of the others go to trial? L son.. a Rere. any of thess settled oa a basis that involved a payment of compensation to the plaintiffs? L 3t is my understanding that in the approximately 25 years plus that there has been litiqation relating to tobacco and health in this country, no plaintiff has ever received a cent from any tobacco company# or any insurer of any tobacco coapany, by way of settlssnent, judgment or otherwise. And that is certainly true in all of the cases in nhich I've been involved. 4 Bave you represented other tobacco companies in health- related litigation? L yes• r ILn 0 Ln ~ ~ ~ cr 00 w

2 3 4 5 6 7 8 9 10 11 12 17 18 19 20 21 22 23 24 25 26 27 28 Q~ Which ones? A. Liggett i Myers. 4 And er.re they also involved in the R. J. Reynolds cases that you've alluded to earii.r? L Z2f smes yes; in sme,r no. Q Hov many additional tobacco health-related cases have you handled for Ligg.tt &Mysrs other than the ones that would already be included in what you've said? L Your question convays no meaning to me. 4 8ow uany cases have you represented Liggett ~ Myers in? L One. p Was R. J. Reynolds also a defendant in that ease? L Iio. ¢ And is the Liggett s Myers cas• c®ncluded? a. Tes. ¢ And with what result? L Dismissed. ~ Has your firm represented other tobacco manufacturers in health-related litigation? L Not to my knowl.dga. 0 Has an,yons else in your firm represented either Liggett ~ Myers or R. J. Reynolds in litigation in which you yourself warQ not involved? L 7[es. 4 ltho would that be? L Wil1, if trial-type hearings before the State Board of Equalization are litigation, then Hart Spiegel certainly has t~ done so, rslated to franchise transactions. A ¢ Let me be sppescifics I thought I asked it specifically.

1 2 3 4 5 6 7 8 9 14 15 i 16 17 18 19 20 21 22 23 .24 25 26 ; 27 28 4 I'm interested only in litigation involving allegation relating to health problems froa the usa of tobacco. liS. C4LLZMS: What type are you talking about? TiE WITHEBS: W®11, Z can answer it. So far as S'm aware, S have been involved in every case that wa have had in the office which related to the smoking and health matter. You know, of course, when Z first started out, I wae very junior and I was working for ay senior, Gregory Harrison, and others in the offics.tAa.~ 3tav+e been involved in the cases that 1've besn involved in.. But I'm reasonably certain that 1'va been in them all. IKA. MANa ¢ Has your firm ever represented asbestos manufacturers or users in connection with health- related litigation of any kind? L Ns have had some involvement in such mattars, or so it is reported to sr.. Q Can you tell me what kind of matters your firm has been involved in? 1 My partner, Eldarkin, tells me that he did soae coasulting with counsel who Bo /PI represented Fiberboard Corporation in the 9ar3-e13l casej although he was never of record in that case. Ha did some consulting in another case, and that is the exte.nt of it to my knowledge, having made inquiry in our office on the subject in order - as we do in every case - in orda.r to ensure that ws have no conflicts - except that Mr. Elderkin is also advising Fibarboard in matters peripheral to the asbestos litigation -- not involving the merits of the litigation - for Fiberboarft corporate successor. I think 4,