-
no.5-as-04zc 

IN THE.
MPELLATE COURT or ILLINOIS

FIFTH DISTRICT

 

FRANCES E. KEMNER, et a1, and

all other cases conSolidated
with Cause No. BO-L-970,

Plaintiffs-Appellees,
v. . 
MONSANTO COMPANY,
Defendant-Appellant.
BRUCE D. RYDER,
Apoellant,
ST. CLAIR COUNTY, ILLINOIS,

Appellee.

Appeal from the Circuit
Court of St. Clair County,
Illinois

No. BO-L-970

Honorable Richard P.
Goldenhersh, Judge














Presiding





mi?

 

0m. 3-1253 -

 

51;:
Lows 5:33:11 

PLAI my.?


?d/K,000,000 

ORAL ARGUMENT REQUESTED

CARR 

CARR, KOREIN, TILLERY, RUNIN,
GLASS BOGARD

412 Missouri Avenue

East St. Louis, IL 62201
(618) 274-0434

JEROME W. SEIGFREID
SEIGFREID, RUNGE, LEONATII 8
POHLMEYER

P. O. Box 160

123 East Jacknon Street

- Mexico. no 65265-0160

(314) 581-2211

ATTORNEYS FOR PLAINTIFFS-
APPELLEES

00016.3

1? 

Monsanto's Santophen. stating untruthfully that the impurities
were not Dioain. p.35)

Transbas Company. one of Monsanto's 2.4-Di customers,
requested information about the Dioxin content of Monsanto's
2.4-Di. Monsanto was aware that Transbas wanted this information
for its file.? (3.4/23/85. p.113) Monsanto told Transbas
there was no detectable amount of Dioxin in the May to November.
1988. 2.4-Di samples p.28): but. Monsanto failed to
tell Transbas that Monsanto knew its pre-May 1888 and post-
November 1988 2.4-Di did contain Dioxin. (id. at p.22)

Further. Dr. James Wilson testified about Monsanto's lies to
Vestal Labs about there having been no Dioxin in Monsanto's
Santophen. (3.5/18/85. p.2)

Monsanto not once warned any of its customers of the
presence or Dioxin in its products. At one time. Monsanto
considered changing the label on its 2.4-Di to indicate its
presence (Pl.2x.l318); but this proposed label change
unaccountably was laid aside. p.78) Monsanto never
warned any of the potential'customers even though it knew the
consumers would be exposed to quantities of Monsanto's Dioxin.
p.198) 'Monsanto knew that some people who use Lysol
were contacting 3 parts per billion of Monsanto's 2.3.7.8.
p.114) It knew that people were spraying their lawns
vwith a product containing 2.3.7.8 and that these people had no
way of knowing of the presence or toxicity of 2.3.7.8 in these
products. p.28) Monsanto knew that Lysol contained

'Monsanto's 2.3.7.8 and that Lysol was recommended for cleaning

24
000164

infants' nurseries and children's toys (Ros/29/35: P.149: and
3.3/21/85. p.132). although there was no warning to customers

that Lysol contained any Dioxin. (Pl.3x.11941 Likewise.

ever warn the Sturgeon residents about the Dioxin spilled in
their community. even after Monsanto had become absolutely
certain that the spilled contents of the tanker had contained 45
parts per billion 2.3.7.8. 

chlorophenols would be less marketable if its customers learned
about the Dioxin content. 'Monsanto's James Wilson testified that
it was profitable for Monsanto to not notify its customers.
pp.l47-BJ Monsanto knew that Diamond Shamrock would
_stop buying Monsanto's 2.4-Di if Diamond Shamrock learned about
the~Dioxin content. (3.4/13/35. p.81) Monsanto's Donald Edwards
testified that 'Any Dioxins in Santophen might discourage
customers.? (3.4/24/85. p.5) When Monsanto told Rawlings Waste
Company that Dioxin was in Monsanto's waste. Rawlings
discontinued taking Monsantois waste. pp.92-7J
Monsanto wanted to advertise Santophen as 'Dioxin-free' and as a
result Wilson suggested testing only five lots if McPhillips
could 'live with' the results. (Pl.2x.1312; and 3.5/1/85. pp.77-
89) Phocion Park testified that sales could be affected if
customers thought-there could be adverse health effects from the
products. (3.8/5/85. p.87) Park testified that Monsanto knew

that its business would be hurt if its customers learned that

'25 000165

Dioxin was in Monsanto's products. (id. at p.92) plaintiffs:
Exhibit 1326 is a March 9, 1989 Edwards to Wilson memo about
ICDD in Monsanto's chlorophenols as being of 'very high
importance' to the continuation of business. (id. at pp.95-96)
Monsanto worried that Lehn and Pink would quit purchasing
Santophen if notified. so Lehn and Pink was not notified.. (1d.
at p.122) Parkfs testimony on the cost of ceasing production
shows clearly why Monsanto kept its Diozin a secret. (3.8/6/85,
p.63) 

Probably the most appalling feature of this story is
Monsanto's efforts to convince the world that Dioxin is harmless.
Dr. Suskind testified that he advised Monsanto they should
publish experimental findings so as to better defend their
position on Dioxin. p.41) Plaintiffs' Exhibit 1552
is a March 3f 1978 memo from Mc9hillips to Monsanto's Callis -

saying, 'The monkey's on Monsanto's back to show that Dioxin is

W- HMHAN (HZ. 

acceptable as, Dow's Penta has less Dioxin than Monsanto's.?
pp.58-65] Monsanto did. in fact, produce 'research'
to defend its position that Diosin is harmless. In 19(9 there
occurred a 2.4.5-T explosion in the Nitro. Host Virginia, plant.
As a result, many of the plant workers were exposed to the
and its Diosin contaminants. These workers were studied
by Monsanto and the results of these studies were published by
Monsanto and accepted as valid by the world. (3.1/9/86, p.124)
.The Record, howewer. shows a deliberate course of conduct
designed to convince its employees and the world at large that
Dioxin is harmless and that even large doses of Dioxin cause

000166
26

only chloracne'('something similar to teenage acne' according to
Monsanto's press releases) aside from some minor initial
reversible health effects. The 'research' studies to prove these_
bald?faced lies were created by Monsanto's agents and employees
and published in the World's_literatur? without any refutation
until this case was tried. All of the data. until released to
the Plaintiffs during the discovery process. had been under
Monsanto's exclusive control and never released to the world.
During the course of this trial. these salient and deeply
disturbing facts about the health effects of Dioxin surfaced:
Zack and Gaffey. two Honsanto employees. published a
mortality study purporting to compare the cancer death rate
amongst the Nitro workers who were exposed to Dioxin in the 1943
explosion with the cancer death rate of unexposed workers. The
published study concluded that the death rate of the exposed
?worker was exactly the same as the death rate as the unexposed
worker. However. Zack and Gaffey deliberately and knowingly
omitted 5 deaths from the exposed group and took 4 workers who
had been exposed and put these workers in the unexposed group
serving. of course. to decrease the death rate in the exposed
group and increase the death rate in the unexposed group. The
exposed group. in fact. had 18 cancer deaths instead of the
reported 9 deaths with the result that the death
rate in the exposed group was ??l_highgr than expected. Consider
what the medical community would believe about Dioxin. if these
these facts were known outside the confines of the casell The
Plaintiffs. in cross-examining the Medical Director of Monsanto.

Dr. Roush. clearly established the fraud that took place. The

2. 000187

I 

cross-examinati?n not only revealed that the 1 death rate

from cancer was 65? greater in the exposed populati than

 
 

expected. but that the death rate from lung cancer as 143%
higher than expected. the death rate from genitouri ary cancer
was 138% higher than expected. the bladder cancer ath rate was

869$ higher and the cancer death rate was 92? higher.

.t - .1

Death from heart disease was 37? higher than expected.


To further confound_and mislead the medical community and
the world at large. a later study of the reported cases of cancer
comparing cancers in living exposed-to-Dioxin workers with living
unexposed workers was undertaken by Dr. Suskind in the so?called
Suskind-Hertzberg Study. It was also traudulent and published in
the Journal of the American Medical Association just three months
after the trial of this case started. This published study or
the workers exposed in the 1949 accident reported only 14 cancers
in the exposed group and 6 in the unexposed group (a smaller
cohort). However. the medical records produced to the Plaintiffs
conclusively proved gross misclassifications and omissions. The
correct classification and ihclusion of known cancers revealed 28
cancers in the exposed group as compared to only 2 in the
unexposed group. (Pl.Ex.l473) There were 1? skin cancers in the.
exposed group as compared.to only 2 in the unexposed group.

There were 11 cancers at other sites in the exposed group
compared with no cancers whatsoever at other sites in the
unexposed group. Thus. there were 28 cancers in the group that
had been exposed to Dioxins in 1949 as opposed to only 2 cancers
in the unexposed group.

000168
28

The background of these two fraudulent reports was

demonstrated
of Dr. Roush.
on the 8th. 9th and 13th
in these exhibits and in
throughout the trial
attempted a half-hearted
attempt was abandoned by
examined and shown to be
to the State of Illinois

Of great concern to
the truth has ever taken

the occurrence of cancer

for the person exposed to Dioxin as it is for the

unexposed. even though great

exist.

Earlier, at Monsanto's request. Dr.
'exposed workers in 1953 to determine whether any
effects had resulted from the exposure. In 1955. a Dr.
Nestmann examined many of the

that most of them had severe (Pl.:x.l779)

of the workers

Compensation Act.

Monsanto's McClain and Vega: (Pl.2x.l754). at

was decided that Monsanto and its medical witness, Dr.

In November

and delineated clearly during the crosseexamination

the Medical Director of Monsanto, which_took place

of July. 1985. The conclusions reached

the examination of Dr. Roush stood

without any serious challenge. Dr. Suskind

defense of Monsanto, but even that
Monsanto after Dr. Sunkind was cross-
such a fraud that he refused to return

for completion of his cross-examination.
the Plaintiffs is that no publication of
place and the World still believes that

and the cancer death rate is the same
person

siginificant statistical differences

Suskind had examined the
adverse health
John
exposed Hitro workers and found

some

filed claims under the west Virginia workers

of 1955. Dr. Sushind met with
which meeting it
Sushind:

would delete any reference to Hestmann's findings of



Monsanto succeeded in concealing

000169
29

Nessmann's findings from the Workers Compensation Commission.
(3.3/6/86, p.169) Dr. Suskind made no mention of these
in his later reports published on the Nitro
workers (id. at p.185}. and bad no knowledge that the world
ever was told of Dr. Nestmann's tindings. (id. at p.191) By
concealing these Honsanto was able to maintain
its position that chloracne is the only long-term health effect
of chronic Dioxin exposure.

In his 1986 and 1384 reports. Suskind indicated that 'except
for a few cases,? the workers' nervous systems problems and liver
problems had disappeared by 1953 (3.2/19/36, p.87), although
Suskind knew that 27 of the 29 workers out of 36 workers studied
continued to have the same problems in 1953 as they had
originally in l?49. (id. at p.175) Suskind said that be had
intended to make the atria think that only a few or the workers
continued to have problems in 1953. (3.3/3/86, p.17) Suskind's
studies are misleading and cannot be relied on. (3.11/19/85.
p.128) Monsanto's Dr. George Roush that Suskind's
studies were 'joint studies' between Suskind and Monsanto
(3.5/19/85, p.79) - that the studies were really Honsanto's
studies. (id. at p.62}

Monsanto presented all of these studies to the world 
claiming {ewer Biotin-caused cancers, deaths and health problems
than actually existed. (3.7/9/85. pp.127-32) nonsento and
Suskind clearly intended that the World would rely on these.
reports. (3.3/7/86, p.122) Dr. Suskind acknowledged that the
world and the scientific community had, in ?act.'relied on them.

p.131) The damage done the medical and scientific

36 000170

World by these false and misleading statements cannot be

overstated!

do EZEBEEQH

Horfolk and Hestern's train. pulling a tank car tilled with
19,566 gallons of Monsanto's GOP-Crude. left nonsanto's Sauget,
Illinois plant on December 13. 1979, en route to a California
customer. who used OCP-crude as an ingredient in a common wood

preservative. The train derailed and the contents or the tank

car spilled in Sturgeon. Missouri in the late evening of January
13. 1979. .

Because the ruptured tank car did not come immediately to a
stop. the chemical spilled over a stretch of approximately 2.738
feet p.154]: however most of the chemical was spilled
. over a stretch of about 249 feet. (R.3/6/84.p. 9) lost or the
chemical spilled on the Railroad's right-of-way adjacent to the
public school and property owned by Prances Kemner and William
Kemner. Substantial amounts of the chemical were spilled on both
the mainline track and the passing track.9 (3.3/7/84, p.219;
3.3/14/34, p.65; 3.3/15/34, p.48 and p. 191: and 3.3/19/84. p.38)

The Sturgeon Fire Department evacuated all residents or the

Town in the early morning of January 11. 1979. The evacuation

 

9As is described at pp.34-35 or Monsanto's Brief. the
Railroad's three tracks run east and west. and parallel to
each other. through the center of Town. The 'nainline' is
the furthest north. the 'passing track' in the middle and
the 'siding track' furthest south. The Kemners' property
is just south of this passing track where the major part

of the spill occurred.

000171
31

for why it did n: use the safer process un. after the Sturgec:
spill.

Second. Monsanto knew for some time before 1979 that simply
redistilling its chlorophenols would eliminate or greatly reduce
the chlorophenols' Dioxin content. (R.a/14/Bd. pp.116-23) Yet,
this too. was not done until 1988. Finally. Monsanto
could have rid its chlorophenol products of Dioxins by testing

every batch and not selling those it found contaminated.

D. NS OXIN .

Monsanto's Chemical Engineer. Donald Edwards. testified that
for at least seven years in the 1978's Monsanto was dumping daily
36 to 43 pounds of Dioxin into the Mississippi River from its
Krummrich Plant. and pp.31-32) Monsanto
tried to conceal this.fact. as is evidenced by comparing
Plaintiffs' Exhibit 1111 with Plaintiffs' Exhibit 1113. and
reviewing the testimony found at p.74. This dumping
was?continuing as late as 1977. although Monsanto officials
recognized the potential health hazard from Dioxinls getting into
the St. Louis food chain through the River. pp.33-54)
Monsanto secretly tested fat samples from several deceased
St. Louis area residents who had died in accidents and not as a
result of illness. and the test results showed that every such
cadaver contained 2.3.7.8 in its fat tissue. (Pl.dx.1398; and
pp.137-39) -Even Monsanto's expert Dr. Alex Arieff
admitted that the 2.3.7.8 in these cadavers' fat could have come
from the Krummrich Plant. p.92) Steven Vogel.
also. testified about the large amount of Dioxin Monsanto was

12 000172

dumPi?g into the Mississippi River through its Krummrich Plant's
sewe:.. p.69; and p.62)

Monsanto's Santophen is the active ingredient in Lysol
disinfectant and cleaning products. p.111)
Monsanto's Analytical Chemist. Pred Hileman. testified that
Monsanto knew that Lysol is recommended for cleaning babies'
toys. and for various other cleaning activities involving direct
contact with the human body. p.182) Yet. there is
no Dioxin warning on the Lysol package. (id. at 186) Hileman
testified that he knew people who used Lysol were contacting
three parts per billion of 2.3.7.8 (id. at 114) and that 2.3.7.8
is extremely toxic. Ltid. at pp.138-131) Eileman testified that
he knew people were spraying their lawns with products containing
Monsanto's 8.3.7.8. and that these people didn't even know it
because they had not been told the products contained Dioxin. let
alone 2.3.7.3. (3.3/22/35. p.23) 

Monsanto's Dr. James Wilson's testimony shows that Monsanto -
decided to sell its 2.4-Di despite Monsanto's having assumed
that it contained 2.3.7.8. pp.59-65) In fact.
Wilson testified that Monsanto knowingly sent TCDD-contaminated
2.4-Di to its customers from 1978 to 1983 (id. at p.75) and
that there was no evidence that any customer ever was notified of
the contamination. (id. at p.165) Wilson testified that Monsanto
possibly was shipping out Santophen with 65 parts per billion of.
TCDD before February of 1979 p.118). and that who got

the contaminated product depended on the 'luck of the draw.?

(id. at p.125) Wilson testified that 

000173
13

Eroducts with_Qioxin for pp.134-35)
Even though Monsanto had adopted Dr. Paget's recommendation that
one part per billion 2.3.7.8 is medically acceptable'
p.168). Monsanto knew that higher levels of TCDD's

 

that 'coeluete like' 2.3.7.8 were in its products 
p.58), and yet gave no notice to its customers. Wilson knew
Monsanto was sending out 2,4-Di with much more than 199 parts per
billion of these TCDD's. (3.5/14/85. p.53) Wilson testified
that he knew Lysol was used on children and dogs. (2.5/29/55.
pp.l49-SB) - 
Monsanto's Chemical Engineer, Donald Edwards. testified that

Monsanto continued selling its Santophen and its 2,4-Di for years
?after Monsanto had learned that those products contained Dioxin.
p.79) Honsanto's Hunie, Kilbourne and Sellew made
the decision to continue selling the biotin-contaminated
products. (id. at 85-88) vEdwards testified that Monsanto knew
Dioxin was in its 2,4,5-1- as early; as 1957. (id. at 154)
Monsanto manufactured its 2.4.5-T from 1948 to 1965, and it was
used widely in-North America and in Viet Nam as Agent Orange.
(3.5/16/85, pp.l46-l7l) It is beyond dispute that Monsanto!s
2.4.5-T contained 2.3.7.8. (See and
psi) . . 

- Monsanto's expert, hr. Frank Dost testified that Honsanto
contributed substantially to environmental by its 2.4.5-T
production. (Pl.Ex.l487: and pp.195-Ba) Monsanto's

000174

14

2.4.5-T is present throughout the world.4 p.48)
Dr. Suskind testified that Monsanto acknowledged that its
problem? had not been solved as of December 7. 1955.
but Monsanto continued to sell
its for another twenty years.

Monsanto's John HcPhillips admitted that Dioxin possibly
was in all of Honsanto's products in 1978. (3.8/5/85. p.81)
Monsanto's Phocion Park testified that Monsanto knew Santophen
(containing seven parts per billion of TCDD's that could have
been 2.3.7.8) and 2.4-di (containing 233 parts per billion of
TCDD's that could have been 2.3.7.8) were going into consumer
products at this time. pp.47-SB) Monsanto's
George Roush testified about Monsanto's having shipped products
containing high levels of Dioxin to Monsanto's customers in
and before 1579. p.123) Monsanto's Elizabeth Fay
testified that Monsanto knowingly sold 2.4-Di containing TCDD
in 1979 (R.8/l4/85. p.68). Fay testified that the Santophen
Honsanto had been selling for 23 years was in hospitals and
homes. and that it could have contained levels of TCDD. (id.
at p.149} Fay admitted that people were exposed to TCDD in

Department 237, where the chlorophenol products were made at

 

?Dioxin in the environment has risen substantially since
1943. and pp.155-57) There now is a
low level of Dioxin throughout the world. (3.12/17/85, p.13)
The evidence shows the source of this Dioxin to be the
manufacture and disposal of chlorophenols. (Pl.?xs.1899 and

16)

000175
15

So it would not have to bear the expense of changing its
manufacturing processes or the expense of losing customers.
Monsanto failed to notif and lied to its Krummrich Plant workers
about the presence and danger of 2.3.7.8 in the Krummrich

chlorophenols; In February of 1979. shortly after the Sturgeon

Safety and Health Administration ran tests on some
samples taken from the walls of Department 237. and found
2.3.7.8 was present. Immediately thereafter.
Honsanto conducted its own tests of Department 237 wall samples
and found 2.3.7.8'at an.even.higher level than OSHA had found.
(Pl.Ex.1233) Nonetheless. Monsanto lifted the protective
measures OSHA had imposed. and did so without even knowing
whether the Department had been cleaned up of 2.3.7.8.
p.115) Also. in June of 1979 Monsanto issued a
newsletter to its xrummrich Plant personnel. saying that Monsanto
had failed to confirm OSBA's findings! (Pl.?xs.1118 and 1237)
In June of 1979 Monsanto issued a press release. for the express
purpose of 'offsetting' the OSHA report pp.26-7J.

000176
16

telling the world that Monsanto had failed-to confirm osaA's
findings. Monsanto's Donald Edwards admitted that
Monsanto. in the newsletter and the press release. was not
telling the truth. (n.4/24/as. p.136; and 3.4/29/35. p.147)
Likewise. Frank post. Monsanto's Toxicologist. testified that
what Monsanto told its workers and the public was untrue.
(R.8/l4/85. p.199) As a result of its having found 2.3.7.8 in
Department 237. 058A issued formal charges against Monsanto.
In response to OSEA's Request for Admissions.
Monsanto swore untruthfully that it had tested_for 2.3.7.8 and
had found none. Elizabeth Fay. who took the wipe
samples. testified that this was a false statement. (3.8/14/85.
p.238)

In September of 1979 Monsanto's Dr. Spolano compiled a set
of answers that Monsanto personnel were instructed to use in
responding to Dioxin questions in connection with the Krumnrich
Plant. (Pl.Ex.14961 Monsanto's attorney. Phocion Park.
responded to this question and answer form by suggesting that the
Krummrich workers be lied to about the presence of the Dioxin in
the Department 237 produhtst (Pl.Ex.1497) Monsanto's Dr. George
Roush testified that high Monsanto officials approved Park's
suggestion to lie to the workers p.22). and no
witness ever was called_to rebutt Dr. Roush's testimony.

Plaintiffs' Exhibit 1511 is a June 17. 1985 Krummrich Plant
bulletin in which the workers were told that there were no .
Significant health problems in those exposed to Dioxin. and that

workers could get only a skin condition and possibly a reversible

000177
17

live: problem from exposure.5 Dr. Roush testified that he had
no knowledge that Krummrich workers ever were given any other
health information about 2.3.7.8 (R.7/l7/85, p.15), even though
Monsanto knew at this time that 2.3.7.8 exposure could cause
cancer. liver damage, nerve damage and other injuries.
(n.7/25/ss, p.52-6)

Monsanto's Toxicologist. Dr. Wendell Kilgore, testified that
the Krummrich Dlant workers had the opportunity to be ekposed to
2.3.7.8 (8.12/12/85, p.117), and that it was possible that all
plant workers had been exposed. (id. at p.126 and p.133) Yet.

several of Monsanto's Krummrich Plant employees testified they

still and chlorinator ih Department 237, was informed about
Dioxin only after the Sturgeon lawsuit had brought the matter to
light. p.4) Tim Department 237 Unit
Controller in 1979, was never advised of the long-term health
effects from Dioxin exposure. p.23) Joe Starzyk.
Department 237 Foreman in;19?9, was never told that the products
of Department 237 contained.Dioxin (id. at p.137), and was never
told that the 2,43Di spilled in February of 1979 contained
Dioxin. (id. at p.146} The Department 237 employees were
permitted to work with the chemicals without proteqtive clothing

and were not told of the presence of biotin. even though Monsanto]

 

sUntil filing its Brief in this Court. Monsanto argued that
chloracne, a minor skin disorder, is the only health risk of
chronic, low-dose exposure to 2.3'7'8. .

000178

18

had known for years that it was being made in Department 237 and

that it could cause serious human health problems.

Section 8(a) of the Control Act6 requires

Monsanto and other chemical manufacturers to report to the EPA

 

the presence of any hazardous substance in the manufacturer's
products. (Pl.Ex.1283) Monsanto acknowledged that the EPA, and
not the chemical companies, should determine whether products
containing 2,3,7,8 are marketable, and hence, any 
warrants notice under Section ate). p.92)
Nonetheless, notwithstanding the long-standing presence of
2,3,7,8 in Monsanto's products, Monsanto gave the EPA a
notice pursuant to Section p.44; and
p.74) In fact, Monsanto made every effort to
conceal its 2,3,7,8 from the EPA. For_instance, although the
chemical that spilled at Sturgeon contained 45 parts per billion
2,3,7,8, Monsanto's Dr. James Mieure testified that Monsanto,
which could detect it at levels as small as 16 parts per billion,
maze; reported it to the EPA. p.48) tor another
example of Monsanto's refusal to identify its 2,3,7,8, see

Plaintiffs? Exhibit 1171 and the testimony of Monsanto's Analytical

 

6Section 8(a) - Notice to Administrator of Substantial Risks -
Any person who manufactures, processes, or distributes in
commerce a chemical substance or mixture and who obtains
information which reasonably supports the conclusion that
such substance or mixtures presents a substantial risk of
injury to health or the environment shall immediately inform
the administrator of such information unless the person has
actual knowledge that the administrator has been adequately
informed of such information. 15 Dhj?g??p Sec. 2687(e)(1976)

000179
19

Chemist Robert Kaley. p.9J Plaintiffs' Exhibit 1135

of the in the tanker were the 2,3,7,8 isomer. At
Monsanto's Hieure's request. before the memo was sent to the 333,
it was altered to delete the admission about the presence of
2,3,7,8. (3.3/18/85, pp.43759; and 3.3/13/85. 

2,3,7,8 (3.3/27/85, pp.75-76J; but the EPA was not notified.

'unidentified' TCDD in its 2,4-Di and not reporting the finding
to-the rm. (mus/as, pp.164-167) Phocion Park testified that, 
to his knowledge, the EPA had negg; been given any Section ate)
Dioxin notice by Monsanto. p.44: and 

p.74) 

Plaintiffs' Exhibit 1313 is a memo from Monsanto's Clayton

Honsanto 'hedge' in its reports to the EPA.7 p.134)
Plaintiffs' Exhibit 1329{is.an April 9,.1989,.memo James Wilson

quantities of only 'undifferentiated tetras.? Monsanto's Donald
Edwards testified that this Memo was 'untrue' because Monsanto

had in fact identified the tetras as 2,3,7,8. (3.4/24/85, p.116)

7This memo was distriboted to Monsanto's Wilson, Rough,
Gossage, Bead and Kilbourne. iPl.Ex. 1315, p.1) 

000180
-25

Edwards testified further that Wilson's comment to the EPA that.
'Further no TCDD's were detected in samples in other lots
manufactured at approximately the same time.? was an untrue
statement. p.155) Wilson admitted telling untruths
to the EPA about the Dioxin content of Monsanto's Santophen.
pp.38-82) Wilson admitted further that he willfully
made the 'incorrect' statement to the EPA that. 'Production since
1979 contained no detectable (3.5/9/85. p.97)

At one time in 1979. Monsanto represented to the EPA that
Monsanto could not test its products for the presence of 2.3.7.8
because the extreme toxicity of the 2.3.7.8 precluded its use in
Honsanto's Labs.8 (Pl.Ex.lB?6: and pp.135-37) The
testimony was that this was an untrue statement and that the
upper echelons of Monsanto Company knew 2.3.7.8 was being used in
Monsanto's Labs. 2.5/16/85. p.26-B: and In
fact. Konsanto had a 2.3.7.8 sample in its Lab no later than
1978. p.37)

 

8At trial. one of Monsanto's excuses for its not having tested
its products and not having reported its TCDD's and 2.3.7.8 was
that Monsanto did not have sufficiently precise testing methods,
to detect it at low levels. Wilson testified TCDD testing could
have been done as early as 1957 p.98). but Monsanto
tested very few batches before the Sturgeon spill. (id. at
pp.89-91) fred Eileman admitted it was possible that Monsanto
just did not utilize its full testing capacity. (3.3/22/85.
p.96) Monsanto had no regular testing program before the spill.
p.121) James Hieure's testimony shows that Monsanto
implemented only after the Sturgeon spill a much more precise
TCDD-testing method that it could have implemented before the
spill. 

000181

21

At trial. Monsanto offered several other excuses for its
having not reported the 2.3.7.8 TCDD contained in its products
to the EPA. In one instance. Monsanto identified 9.5 parts per
billion of what 'coelutes like but failed to report
this because they were not certain that it was indeed 2.3.7.8.
p.164) Yet. there is no evidence Honsanto told the
EPA when these"uncertainties' later were removed by the exact
identification of 2.3.7.8. (id. at pp.lS7-76) It was Phocion
Park's opinion that Monsanto_had no duty to report small amounts
of 2.3.7.8 in its products. Park stated that
.reporting very low levels of 2.3.7.8 would merely 'add fuel to 
the media fires.' (Pl.Ex.12951 Park testified further that the
EPA need not have been notified of Dioxin in Monsanto's products
because the EPA already know that Dioxin was dangerous!
p.48) In addition. Park said that honsanto had
a sample in its Dab no later than 1979. 
p.37) Park said that Monsanto can refuse to follow the EPA's
stated policy that a chemical manufacturer cannot consider the
likelihood of exposure in;determining whether to report the
presence of Dioxin in its products.. p.65)

Even Monsanto's Dr. Hair recommended to the Honsanto
Biohazards Committee that any product containing more than 253
parts per billion total Dioxins all Dioxin isomers.
including 2.3.7.3) should be reported to the yet Monsanto
completely disregarded this recommendation by refusing to report
products containing as high as 29.639 parts per billion Dioxins.
p.146)

000182

22

Monsanto?s Director of Environmental Management. Hichael
Pierle. told the EPA in 1977 that Monsanto had no information on
whether Monsanto's Krummrich Plant effluents contained Dioxin.
(Pl.Ex.l345) Monsanto's Dr. James Wilson confirmed this to be an
untrue statement made to the PDA 

The Canadian government required that no product entering
Canada could contain more than 16 parts per trillion 2.3.7.8.
Plaintiffs' Exhibit 1364 is Monsanto's James Wilson's September
3, 1981 memo to the Canadian government stating that Monsanto's
tests indicated shipments showing no 2.3.7.8 at 1 part per
billion. Wilson acknowledged this was an 'incorreot'
representation. (Pl.Ex.1364: and pp.163-72)

Monsanto's cover-up of the Dioxin in its products included.
of course. the deception of the purchasers of the products. The
testimony was that_there was no evidence honsanto ever notified.
ani of its customers that any of Monsanto's products contained
Dioxin. (3.3/27/35, p.165) John Monsanto's.
Harketing'Hanager. testified that Lehn and Pink. the manufacturer
of Lysol and one of Honsantofs Santophen customers. was not
notified of the Dioxin in the Santophen because Monsanto was
worried that Lehn and Pink would stop purchasing the Santophen
from Monsanto if it learned about the_Dioxin. (3.8/5/85. p.122)
Plaintiffs' Exhibits 1556 and 1557 show HcPhillips' response to
Tennessee Eastman Company's inquiry about whether Dioxin was in
nonsanto's Santophen. These exhibits show that Honaanto lied by
TCDD in product at 19 parts per billion.? (3.8/5/85:
p.165 and p.183) Plaintiffs' Exhibit 1561 is Monsanto's reply to

Shulton Labs' request for information on the impurities in

23 - 000183

Monsanto's Santophen. stating untruthfully that the impurities
were not Dioxin. p.35]

iransbas Company. one of Monsanto's 2.4-Di customets.
requested information about the Diozin content of Monsanto's
2.4-Di. Monsanto was aware that Transbas wanted this information
. for its file.? p.113) Monsanto told Transbas
there was no detectable amount of Dioxin in the May to November.
1988. 2.4-Di samples p.28): but. Monsanto failed to
tell Transbas that Monsanto knew its pre-May l988 and post-
November 1988 2.4-Di did contain Dioxin. (id. at p.22)
Further. Dr. James Wilson testified about Monsanto's lies to
Vestal Labs about there having been no Dioxin in Monsanto's
Santophen.? p.2J

Monsanto not once warned any of its customers of the
presence of Dioxin in its products. At one time. Monsanto
considered changing the label on its 2.4-Di to indicate its
presence (Pl.Ex.1318): but this proposed label change
unaccountably was laid aside. p.78) Monsanto never
warned any of the potential?customers even though it knew the
consumers would be exposed to quantities of Monsanto's Dioxin.
(n.3/6/85. p.188] Monsanto knew that some people who use Lysol
were contacting 3 parts per billion of Monsanto's 2.3.7.8.
p.114) It knew that people were spraying their lawns
with a product containing 2.3.7.8 and that these people had no
way of knowing of the presence or toxicity of 2.3.7.8 in these
products. p.28) Monsanto knew that Lysol contained

'Monsanto's 2.3.7.8 and that Lysol was recommended for cleaning

24 000184

 infan:5' nurseries and children's toys p.149; and
2.3/21/85. p.152). although there was no warning to customers

that Lysol contained any Dioxin. (Pl.Ex.llS4) Likewise.

ever warn the Sturgeon residents about the Dioxin spilled in
their community. even after Monsanto had become absolutely
certain that the spilled contents of the tanker had contained 45

parts per billion 2.3.7.8. (pi.sx.ias-92)

chlorophenols would be less marketable if its customers learned
about the Diozin content. Honsanto's James Wilson testified that
it was profitable for Monsanto to not notify its customers.
Monsanto knew that Diamond Shamrock would
stop buying.Honsanto's 2.4-Di if Diamond Shamrock learned about
the?Dioxin content. p.81) Monsanto's Donald Edwards
testified that 'Any Dioxins in Santophen might discourage
customers.? (3.4/24/85. p.5) When Monsanto told Rawlings Waste
Company that Dioxin was in;xohsanto's waste. Rawlings
discontinued taking Monsanto?s waste. pp.92-7)
Monsanto wanted to advertise Santophen as 'Dioxin-free' and as a?
result Wilson suggested testing only five lots if McPhillips'
could 'live with' the results. (Pl.2x.1342; and 3.5/1/85. pp.77-
89) Phocion Park testified that sales could be affected if
customers thought there could be adverse health effects from the
products. p.87) Park testified that Honsanto knew

that its business would be hurt if its customers learned that

25? 000185

Dioxin was in Monsanto's products. (id. at p.92) Plaintiffs'
Exhibit 1326 is a March 9. 1989 Edwards to Wilson memo about
TCDD in Monsanto's chlorophenols as being of 'very high
importance' to the continuation of business. (id. at pp.95-96)
Monsanto worried that Lehn and Pink would-quit purchasing
if notified. so Lehn and Pink was not notified.. (id.

at p.122) Park's testimony on the cost of ceasing production

shows clearly why Monsanto kept its Dioxin a secret. (3.8/6/85.
p.63Probably the most appalling feature of this story is
Monsanto's efforts to convince the world that Dioxin is harmless.
Dr. Suskind testified that he advised Monsanto they should
publish experimental findings so as to better defend their
position on Dioxin. p.41) Plaintiffs' Exhibit 1552
is a March 3. 1978 memo from McPhillips to Monsanto's Callis -.
saying. 'The monkey's on Monsantofs back to show that Dioxin is

acceptable as. Dow's Penta has less Dioxin than Monsanto's.?

 

pp.58-65) Monsanto did. in fact. produce 'research'
to defend its position thatJDioxin is harmless. In 1949 there
occurred a 2.4.5-T explosion in the Nitro. West Virginia. plant.
As a result. many of the plant workers were exposed to the 
2.4.5-T and its Dioxin contaminants. These workers were studied
by Monsanto and the results of these studies were published by
Monsanto and accepted as valid by the world. (3.1/9/86. p.124)
.The Record. however. shows a deliberate course of conduct
designed to convince its employees and the world at large that

Dioxin is harmless and that even large doses of Dioxin cause

is . 000188

only chloracne ('something similar to teenage acne' according to
Monsanto's press releases) aside from some minor initial
reversible health effects. The 'research' studies to prove these
bald-faced lies were created by Monsanto's agents and employees
and published in the World's literature without any refutation
until this case was tried. All of the data, until released to
the Plaintiffs during the discovery process, had been under
Monsanto's exclusive control and never released to the world.
During the course of this trial. these salient and deeply
'disturbing facts about the health effects of Dioxin surfaced:
Zack and Gaffey. two Monsanto employees. published a
mortality study purporting to compare the cancer death rate
amongst the Nitro workers who were exposed to Dioxin in the 1949
explosion with the cancer death rate of unexposed workers. The
_published study concluded that the death rate of the exposed
?worker was exactly the same as the death rate as the unexposed
worker. However. Zack and Gaffey deliberately and knowingly
omitted 5 deaths from the exposed group and took 4 workers who
had been exposed and put_these workers in the unexposed group
serving. of course. to decrease the death rate in the exposed
group and increase the death rate in the unexposed group. The
exposed group, in fact, had 18 cancer deaths instead of the
reported 9 deaths (Pl.Ex.l464J with the result that the death
rate in the exposed group was than expected. Consider
what the medical community would believe about Dioxin. if these
these facts were known outside the confines of the casell The
Plaintiffs. in the Medical Director of Monsanto.
Dr. Roush. clearly established the fraud that took place. The

000187
27

cross-examination not only revealed that the 933:3}; death rate
from cancer was 65% greater in the exposed population than
expected. but that the death rate from lung cancer was 143%
higher than expected. the death rate from genitourinary cancer
was 168% higher than expected, the bladder cancer death rate was
899: higher and the cancer death rate was 92% higher.
Death from heart disease was 37% higher than expected.
(Pl.Ex.1465). -

To further confound and mislead the medical community and
the World at large. a later study of the reported cases or cancer
comparing cancers in living exposed-to-Dioxin workers with living
unexposed workers was undertaken by Dr. Suskind in the so-called
suskind-Hertzberg Study. It was also fraudulent and published in
the Journal of the American Medical Association just three months
after the trial of this case started. This published study or
'the workers exposed in the 1949 accident reported only 14 cancers
in the exposed group and 6 in the unexposed group (a smaller
cohort). However. the medical records produced to the Plaintiffs
conclusively proved gross misclassifications and omissions. The
correct classification and inclusion or known cancers revealed 28.
cancers in the exposed group as compared to only 2 in the
unexposed group. (Pl.Ex.1473) There were 17 skin cancers in the.
exposed group as compared to only 2 in the unexposed group.

Dhere were 11 cancers at other sites in the exposed group
compared with no cancers whatsoever at other sites in the
unexposed group. Thus. there were 28 cancers in the group that
had been exposed to Dioxins in 1949 as opposed to only 2 cancers

in the unexposed group.

29 000188

. i,

The background of these two fraudulent reports was
demonstrated and delineated clearly during the croSSeexamination
of Dr. Roush. the Medical Director of Monsanto, which took place
on the 8th. 9th and 16th of July. 1985. The conclusions reached
in these exhibits and in the examination of Dr. Roush stood
throughout the trial without any serious challenge. Dr. suskind
attempted a half-hearted defense of Monsanto. but even that
attempt was abandoned by Monsanto after Dr. Suskind was cross-
examined and shown to be such a fraud that he refused to return
to the State of Illinois for completion of his cross-examination.

Of great concern to the Plaintiffs is that no publication of
the truth has ever taken place and the World still believes that
the occurrence of cancer.and the cancer death rate is the same
for the person exposed to Dioxin as it is for the person
unexposed. even though great siginificant statistical differences
exist.

Earlier, at Monsanto's request, Dr. Suskind had examined the
exposed workers in 1953 to determine whether any adverse health
effects had resulted from;the exposure. In 1955. a Dr. John
Hestmann examined many of the exposed Hitro workers and found
that most of-them had severe (Pl.zx.l779) Some
of the workers filed claims under the Host Virginia workers
Compensation Act. In November of 1955. Dr. Suskind met with
Monsanto's McClain and Heger (Pl.zx.1754]. at which meeting it
was decided that Monsanto and its medical witness. Dr. Suskind:
would delete any reference to Nestmann's findings of
Monsanto succeeded in concealing

29 000189

Nestmann?s findings from the Workers Compensation Commission.
(3.3/6/86, p.169) Dr. Suskind made no mention of these
in his later reports published on the Nitro
workers (id. at p.185). and had no knoeledge that the world
ever was told of Dr. Nestmann's findings. (id. at p.191) By
concealing these Monsanto was able to maintain
its position that chloracne is the only long-term health effect
of chronic Dioxin exposure.

In his 1986 and 1984 reports. Suskind indicated that 'except
for a few cases.? the workers' nervous systems problems and liver
problems had disappeared by p.37), although
Suskind knew that 27 of the 29 workers out of 36 workers studied
continued to have the same problems in 1953 as they had
originally in 1949. (id. at p.175) Suskind said that he had
intended to make the World think that only a few of the workers
continued to have problems in 1953. (3.3/3/86, p.17) Suskind's
studies are misleading and cannot be relied on. (3.11/19/35.
p.123) Monsanto's Dr. George Roush testified that Suskind's
studies were 'joint studies' between Suskind and Monsanto
(3.5/10/85, p.79) - that the studies were really Monsanto's
studies. (id. at p.62) 

Monsanto presented all of these studies to the World I
claiming tower Dioxin-caused cancers, deaths and health problems
than actually existed.. (3.7/9/85: 99-127-321 Monsanto and
Suskind clearly intended that the world would rely on these
reports. p.122) Dr. Suskind acknowledged that the
World and the scienti?ic community had, in fact, relied on them.

p.131) The damage done the medical and scientific

3? 000190

World by these false and misleading statements cannot be

overstated!

3- 52235593

Norfolk and Hestern's train. pulling a tank car filled with
I . i
19,563 gallons of Honsantc's OCT-Crude. left Monsanto's Sauget,

 

Illinois plant on December 19. 1979, en route to a California:
customer. iho used GOP-crude as an ingredient in a common wood


preservative. The train derailed and the contents of the tank

car spilled in Sturgeon. Missouri in the late evening of January

Because the ruptured tank car did not come immediately to a
stop. the chemical spilled over a stretch of approximately 2,456
feet p.154): however most of the chemical was spilled
over a stretch of about 246 feet. (R.3/6/84.p. 9) Host of the
chemical spilled on the Railroad's right-of-vay adjacent to the
public school and property owned by Frances Kemner and William
Kemner. Substantial amounts of the chemical were spilled on both
the mainline track and the passing track.9 (3.3/7/84, p.219;
3.3/14/84, p.65: and p. 191: and 3.3/19/84, p.P8)

The Sturgeon Fire Department evacuated all residents or the
Town in the early morning of January 11. 1973. The evacuation;








 

9As is described at pp.34-3S o? Monsanto's Brier, the
Railroad's three tracks run east and west. and parallel to
each other. through the center of Town. The 'mainline' is
the furthest north. the 'passing track' in the middle and
the 'siding track' furthest south. The Kemners' property
is just south of this passing track where the major part
of the spill occurred.

 


31