THE CIRCUIT COURT
TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS
ST. CLAIR COUNTY

FRANCES E. et al

Plaintiff,





VS. NO. 
- 

JONSANTO COMPANY, 

- 

1

Defendant.
Before the HON. RICHARD P. GOLDENHERSH, Judge
REPORT OF PROCEEDINGS

JURY TRIAL

July 31, 1985

APPEARANCES:

 

11R . CARR
on behalf of the Plaintiffs;

I
I

KSHHETH R. HEINEHAN, JR. JOSEPH NASSIF
JR. S. CORNFELD
on benalf of the Defendant.



L_.u

KIMBERLY GANZ, CSR, RPR, CM
Official Court Reporter

 

REMEMBERED, that on July 31, 1985 the same
being one of the regular judicial days of said court, the
above?entitled cause came on regularly for hearing before the
HONORABLE RICHARD P. one of the Judges of said
court, at the St. Clair County Building, 10 Public Square, in
the City of Belleville, St. Clair County, Illinois.

Whereupon the following proceedings were had:

(The following proceedings were had in the hearing

and presence of the jury)
GEORGE ROUSH
having resumed the witness stand, being previously sworn:
testified further as follows:
RECLARIFICATION EXAMINATION
By
2112. KENNETH R. 

Q. Doctor Roush, let me hand you, sir, what has been

marked as Plaintiffs' Exhibit 1494 and would you re-identify

that for the jury, olease?

a



. This is titled a Work Description for Dismantling
the Residue Equigment in Building 237. It is prepared by Mr.
Linn of the Krummrich Plant and refers to the Honsanto
industrial chemicals and it was written on September 30,

1983.

Q. Sir, and Mr. Carr asked you about, did he not, sir,

 

 

 

There is no evidence that

changes; -So, now you are

Exhibit 1494B, correct?

A. Yes.

exposure and which relate

exposure that_happened in

 

,all repetition. I did not go into 1494 on recross

to the repetition.

1

 


I
i

to acute exposure?

chronic. Once the acute exposure is over --

this portion of that exhibit which he labeled Plaintiffs'

A. When you talk about long and short term, you

talking about acute versus

Q. Now, sir, with reSpect to these things that it says
chlorinated dioxins are kuown to cause here, sir, with'

respect.to these, which, if any of them, relate tOelong term

I

have

 

to talk about whether something happens with an acute
exposure or chronic exposure and whether the effect lasts a
-long time. The effect of dioxins are known with the kind of
I the accidents to cause chloracne,?
liver damage, nerve changes and possible other injury and
they are talking about the lipid effects and other things
like that. Now, those will happen with acute accidents.J

chronic eXposure produces nerve

MR. CARR: Your Honor, 1 object to this. This is

examination and this has all been done with the doctor

before. He said these same things and I am going to object

MR. HEINEMAN: roar Honor, may I Speak to that. He



-. ?Inef- --
.. . . . 
who.A-ai-D?ms 

  

. 4d?

gm." 



urn A

went into on his recross examination whether or not these
particular things were known in 1979 and with respect to what
is set forth in 14943 as opposed to what is set forth in
Exhibit 920 and that is what I am getting into.

HR. CARR: Your Honor, I withdraw my oojection. I
do remember going into comparing the two notices so I
withdraw my objection.

THE COURT: Fine. It is withdrawn.

Q. Please, continue, sir.

A. When you talk about the effects of acute exposure
are those things that are mentioned there. When a man is
taken away from that exposure, the episode is over, the
liver, nerve changes and other effects have been gone away
and the only thing that is left in something less than 50
percent, or more than that, if the exposure is not high, the
chloracne will go away or stay depending on how severe the
chloracne was in that episode.

Q. All right. Now, so is Exnibit 1494, is that
referring to an acute, a possible acute exposure?

A. No, sir.

Q. 1494, sir?

A. No. Yes, it is.

Q. Now 1494, what is that dealing with?

A. This is called a Package that describes the work

 

 

 

?24

 

 

 

necessary to dismantle the residue equipment.

Iv

Q.

sir?

questions, Your Honor.

Q.

include

residue tanks?

A.

Q.

exposure that might result

acute or chronic?

A.

Q.

A.

0-



anything with resp

And it is going

Yes, sir.
The contractor i
Yes, sir.

MR. CARR: I obje

THE COURT: Obje

-- is it going to a contractor,

I


sugposed to dismantle equipment?

ct to the leading form of the

ction sustained.

And included among that equipment, sir, does it

Yes, it does.

All right. Now,

That will be acu
That would be an

Yes, sir.

eat to the still pot and the

how would you characterize an

from something like that as being

te.

acute exposure?

 

All right. Now,

let me direct your attention, sir,

to Plaintiffs', I am sorry} Defendant's Exhibit 920 and page

2-3, roman numeral 2?3 of gxhibit 920.

- . ..
MR. HEINEMAN: Your Honor, I believe tnere was a


Plaintiffs' Exhibit of that page, if Izam not mistaken.


 

 

5.



. ?We;

.

 

MR. CARR: You ar

MR. HEINEMAN: I
Plaintiffs' Exhibit 1515.

MR. CARR: You ar
for talking without Jerry

Q. Let me hand you,

mistaken.
am mistaken? No, I am not.
Yes.

right. That is what I get

being here.

?sir, what has been marked as

Plaintiffs' Exhibit 1515 and is in evidence and has been

passed to the jury. Now,
920, roman numeral 2?3 of
A. Yes, sir.

o. All right.

And
the jury is what, sir?

A. This is an Indus

MR. CARR: Let me

blowup of

that page passed

I

HEINEMAN: 

is this, sir,-a portion of Ekhibit

920?
920 again, would you identify for

trial Hygene Manual.
correct, Your Honbr. There is no
to the jury.

ight.

 

THE COURT: Fine
A. This Industrial

chlorophenol Department 23

Easterday and Phil Kirk in
All right. And,

there on Plaintiffs' 1515,

about there, sir?

. So noted.
Hygene Manual was written for the

and was prepared by Paul

 

,Decsmber of 1979.
Isir, with respect to what is shown

what is it that is being warned


a

A. Well, these workers are regularly in the plant in

 

 

6



 

237 where they are making

the chlorophenols and there is the

possibility that they will be exposed to minute quantities of

chlorinated dibenzo-dioxin.

Q. Now, sir, is it

anticipated that those exposures to

the extent they occur would be acute or chronic?

A. Chronic.

Q. Now, is it anticipated, sir, that those workers

would have the acute exposure that would be addressed in

 

Plaintiffs' Exhibit 1494 from cutting open a still pot or a

residue tank? i
A. The exposure of

operation would be very, 

that was anticipated or?ccncerned with here.

different problems.

these people in their routine
rery small compared to the exposure

They are two

Q. And is it anticipated, sir, that this would be

acute exposure of the magnitude considered here with respect

to the workers in Department 237?

A. Not unless they

got into the still pot where the

dioxins could be concentrated.

 

Q. All right. And

to your knowledge, sir, do the

workers at the Krummrich Plant get into the still pot?

A. They periodically go in and clean out the still pot

but when they do, they use special equipment, not as a part

of this.

I



 

 

3?

.





 

What is the special equipment that they use?

A. They use complete protective gear and it is

 

recognized as being a hazardous job so they wear respiratory
protection and semi?impermeable clothing, disposable
clothing, protective clothes as well as boots.
Q. Do they wear any protection for their faces, sir?
A. Yes, sir. As part of that respiratory protection,
you can't have it without.
Q. Now, during the course of the examination by Mr.

Carr, you and he discussed the TLV for phenol or

- chlorophenol. Do you remember that, sir?

A. Yes, sir.

 

0. And do you remember discussing the fact that for

the chlorinated phenols, ybu devised your own 
A. Yes, sir.
Q. Why was that done, sir?
MR. CARR: Your Honor, that is repetition. He has
explained why it was done already. I object to it. It is

repetition.

 

THE COURT: Objection is sustained. It has been
gone into and that exact question and answer.
Q. Now, what is the-TLV for the chlorinated phenols?

MR. CARR: Objection, your Honor. That has been

asked and answered.

 

i
8!

 

MR. HEINEMAN: Your Honor, this is the very
situation that Mr. Carr went into and I want to do some
clarification on it.

MR. CARR: Went into it and I went into it because
you had gone into it. Now are you going to go into it.
because I had gone into it again? I object to it. It is
repetition.

THE COURT: Objection is sustained.

Q. Is there a difference, sir, between the TLV and the
level at which the skin irritation actually occurs?

A. Yes. We do not see any irritation of the skin nor
do the men complain of it if the concentration of the
chloroPhenol in that unit is kept at three milligrams. So,
we don't know how much below it they will have?irritation but
below three milligrams we don't see irritation. Three i
milligrams. Three milligrams of chlorophenol in one cubic
meter of air.

Q. Now, the TLV, is that the threshold limit value?

A. Yes.

 

Q. That is the value at which someone can work in an
environment eight hours a day?
MR. CARR: I object; It is repetition. Counsel has
gone into this already. This entire subject has been

explored. I

 

 



THE COURT: Objection sustained.

It is repetition.

Q. So, have you monitored, sir, the level of

chlorinated phenols in Department 237?

A. Yes, sirabout doing that?

A. There is a sampling pump that draws air through it

and the chlorophenols that is in the air is trapped in the

collection media and then

through it, you can analyze for the chlorophenol.

tell how much was present

has said that the average

 

by knowing the volume of air pulled

You can

in the air and our sampling program

exposure, average concentration of

chlorophenol in the air is at the order of 2/16 of a

I I I 
milligrams per cuoic meter of air.

Q. 2/16 of a milligram which would be below the TLV of

three milligrams.

Now, if you were to assume, sir, that,

let's say there were 400 parts per billion of dioxin, tetra

chlorinated dioxin in the
average in the department
meter.

A. Yes.

 

chlorophenol which you as an

at 2/10 milligrams per cubic

Q. If you assume there were 400 parts per billion of

tetra chlorinated dioxins

in there, how much dioxin would
I


someone be exposed to at that level of chlorophenol found in

the department, if you assume further, sir, that the vapor

 



{0

 

 



.a

pressure of chlorophenol and dioxin are the same?

A. .08 nanograms per cubic meter of air would be theconcentration of the dioxin. . 
33i;.5.
Q. That would be I am sorry. .08 
A. Nanograms. - 
Q. A nanogram is how much of a gram? 
A. One billionth of a gram, JE 
Q. Now; so it woul be .08 billionth of a 
A. Right.
Q. Of dioxin per cubic meter? 
. 
Q. How much air does a man breathe in an eight hour 3 3&2:
Gal? . 

A. It generally is accepted a man who is doing

moderate activity will breathe 10 cubic meters in an eight 

hour work shift.

Q. So what would be the daily intake of that dioxin7

 

that a man would take in 'f you assume that the vapor

pressure of dioxin and ch orophenol are the same?

A. 8/10 of a nanogram.

I 1-
Q. 8/10 of a nanogkam per day; is that right?
A. Yes, sir. I 

Q. Do you remember the Dunagin article we looked at


I
I

before, sir?

I




 

ll

 

 

Yes.
Q. Doctor Dunagin from the University of Missouri?

A. Yes.

 

Q. -Did.he have a figure in there, sir, quoted from the
FDA as to what a no effec level would be of dioxin exposure?
A. The FDA had said it was 70 nanograms per day.

Q. 70 nanogram per day was a no effect level?

A. Yes.

 

Q. And this would be 8/10 of a nanogram per day?

A. Right. That is if the vapor pressure were the
same.

Q. Were the same. Now, what if the vapor pressure is
not the same, sir? I

A. If the vapor pressure is higher for the dioxin,
then this would be higher than this value and if the vapor
pressure were lower, the; for chlorophenol, then it would be
below that.

Q. All right. Is there a ?ifferent vapor pressure

between dioxin and chlorophenol?

 

A. Yes. It is abput a tenth of a sixth below.

Q. Which is below wnich?


. . . .
A. The diox1n has such a low vapor pressure it is

one/millionth of the vapor pressure of the chlorophenols.

Q. And if that be the case, sir, if it were

 

12

 

 

 

one/millionth of a vapor Tressure, then what dioxin
concentration or what would be the dioxin exposure per day?

for a man working in that department if you assume there 400 parts per billion of 

vapor pressure is a million times less?

A.

Q.

a nanogram?

A. It is one/one millionth.

Q. Of a nanogram?

A. Yes.

Q. Now, if you go to the Center for Disease Control

article, sir, with respect to?one-part per billion in the

I
could consume per day at 10 grams of contaminated soil per

day? 

A. 'They are talking about an average exposure of 44
picograms per day.

Q. Now, what does 

A. That is lifetime exposure.

Q. 44 picograms per day for a lifetime?

A. Yes. i

Q. And what is the comparison of 44 picograms to 8/10

It would be 8/10 of a femtogram.

And what is the comparison between a femtogram and

 



 

of a femtogram? 

iioxin in the chlorophenol but the

<soil, what is the number of picograms that they said a child

 

 

sum

think it is 50,000. It is one/50,000th of the

permitted exposure even w1th a conservative approach of the?m

CDC and their estimation of lifetime exposure.

Q. So that if it is 400 parts per billion of dioxin 

the chlorophenol 

A. YES. . 

Q. Consumed or breathed eight hours a day by a man

working in the department, he would get one/50,000th as 

 

as the Cqusaid a child could eat in contaminated soil over 

lifetime?
A. Yes, sir. i
Q. Now, I would liJe to direct your attention, sir,'if

I may to Plaintiffs' Exhibit 1518. Let me hand you this{

sir. This is a document from the Moses study. Do you

remember this? 
i

Q. I think it was pessed to the jury, Plaintiffs'


Exhibit 1518. Now, sir, 1518 contains, does it contain a

graph at the bottom?

A. Yes, sir.
I
I

Q. Do you recall Carr asking you whether 24
1

percent of those with heaVy exposure to never got
i

chloracne. Do you recall that, sir?

A. Yes, sir?aw

  

'Didn't you answer no to that? I
A. That is right.
Q. Despite what that figure shows?

A. Yes.

 

. Q. Thy did you answer no to that, sir?

A. Because in their classification of these pe0ple
into these various categories, it was based on their recall
of their job assignments as well as the level of exposure
they had if they had those job assignments.

MR. CARR: Your Honor, I object to that because my
question asked whether or-not this chart showed that 24

percent never had chloracne and the witness said it did not

and I object to that.

 

MR. HEINEMAN: That is right.

MR. CARR: That is not what the witness is now

I
saying.

MR. HEINEMAN: Yes, it is.
THE COURT: Objection is sustained. It is not.
Q. Doctor, would you read what Doctor Moses said in
the paragraph on page 171 which is Plaintiffs' Exhibit 1518?
That paragraph that talks about figure two at the bottom of
the page?
A. The whole paragraph?

Q. Starting with however.

 

si
1 1

 



-24'

 

 

A. However, it can also be seen that 36 percent}of

those classified as having minimal exposure had a history of

 

chloracne. And 24 percent of those classified as having
heaVy exposure did not have a history of chloraCne. If the
latter figure is used to question the sensativity of
chloracne as an exposure indicator, the 36 percent prevalence

of chloracne among those classified as having minimal

exposure underlines the limitation of reliance on recall and

assessment of exposure.

Q. What does the next sentence say, sir?

A. It is of interest that no case of current residual

chloracne and only one case of questionable chloracne was

found among those hired after 1969 when production

1
ceased. - 

Q. And so, sir, what is it that figure.two is based

A. It is based on dnly one thing. It is on the man's
recall of_his job as whether he had heavy exposure.

Q. Worker recall?

A. Yes, sir.
I

Q. And what Doctor Moses had access to or what -- did
Doctor Moses have access to anything other than worker recall
I

in making a decision abouo who had chloracne and who did not?

A. No, Sir.

 

L6

 

 

Did she have access to the union?

A. Yes, sir. Yes, she did.

0. And what records did the union have?

A. The union has their own records of the work that
the men have done. What is contained in that, I don't tnow
but they do keep records of what they do.

Q. And she was retained or she and Doctor Selikoff
were retained by the union?

A. Yes, sir.

Q. Now, so why is it, sir, based upon what you see
there in figure two, that you answered no to Mr. Carr's
question?

A. Because we can't be sure based on their recall
which one of these actual job assignments, where they should
fit into their categorization. Those that have been called
heavy might have been moderate or vice versa so their moving
up and down this list is dependent only on recall and that is
not a good way to do it. They had the recall plus their
union records but I am not sure just how those work together
and Moses is saying I can't tell about this either. She
can't tell what their actual exposure was.

Q. And does she say anything about relying on recall
and assessment of exposure?

MR. CARR: Your Honor, this is all repetition. She

 

17

 

clearly did. That is the caption of the chart but yet the

.witness said the chart didn't say 24 percent never did have

chloracne. I object to it. They are not bringing out
anything that is new.
COURT: Objection is sustained.
Q. fLet's read what she says, Doctor.
THE COURT: It has been read. That is part of the
objection on the repetition. Objection is sustained.

MR. HEINEMAN: I object to Mr. Carr's

 

characterization of it, Yopr Honor, because the statement in
the paragraph says underlihes the limitations of reliance on
the recall.

THE COURT: The point that I am ruling on the

objection is repetition. It has already been read. It has

already been explained by the witness. You are repeating

yourself. I am admonishing you not to repeat yourself and to

 

go on with the examination. The objection is sustained.
Q. Doctor. let me hand you what has been marked as
Plaintiffs' Exhibit 188. Do you see that. sir? That is an

exhibit that has been previously admitted into evidence as

the results of Doctor Rappe's analysis of a reserve sample.

Do.you have that before you there, sir?

A. Yes, sir.

5
I

Q. And I believe it has been passed to the jury. Dr.

 

18

 

?miRoush. do you recall Mr. Carr asking you whether Doctor Rappe
found 45 parts per billion in the reserve sample?
A. Yes. sir.
Q. What does that document say with respect to the

range of findings that Doctor Rappe made with respect to

2.3.7.8 TCDD in the reserve sample?

 

A. In sample 302. in 301. was less than 100 picograms
of 2.3.7.8 in the whole sample. Then he says in 302lit was
11 parts per billion of 2.3.7.8 TCDD. In the next sample was.
at .5 and then for the next two at 45 and that says
complex mix and I don;t know what that means.

Q. Now. sir. let me make sure you understand.

A. Yes.

Q. That some of these figures are not the sample

 

itself. I

1
MR. CARR: I Counsel can't tell the witness

what the exhibit means and then ask the witness to say what
the exhibit means.

THE COURT: Objection is sustained.

 

MR. CARR: If the witness doesn't know what it
means. he can't testify toiit.
Q. Let me direct your attention. sir. to the report


with respect to samples 1102304 and 1102305.

A. They are listed.1both of them are listed at 45 

 


I
1?

 

 



2,3,7,8 tetrachlorodibenzo-dioxin.
Q. Let me direct your attention, sir, to samples

listed KL 01-8001 and MB 823. What is listed for those?

 

A. The 8001 is .7 parts per billion of 2,3,7,8 TCDD
and 823 is .6 parts per billion.

Q. Now, do you know, sir, as you sit here, exactly
what each one of those numbers, the sample numbers
represents?

A. No, sir.

Q. You don't know which is which?

A. No, sirassume, sir, that there is evidence

 

in the case from the testimony of Doctor Rappe that the 304

and 305 are from the rese?ve sample and that KL 01?8001 and
MB 823 are from the reserve sample, if I ask you to assbme
that, sir, what would be the range in findings by Doctor
Rappe with respect to the reserve sample?

A. The range of concentrations would then be from .6

parts per billion up to 45 parts per billion of 2,3,7,8 TCDD.

 

Q. All right. Now, sir, are you the only person who

believes that chloracne isfthe hallmark of dioxin exposure?

A. No, sir.

Q. Are you the only?one who believes that except for

Ichloracne, TCDD has not demonstrated comparable levels of

 

i

2?

 

biologic activity in man? I

A. No, sir.

Q. Mr. Carr has asked you about that being your
belief, Monsanto's believe, has he not?

A. Yes, sir. .

Q. But there are others who believe that, aren't

there, sir?

MR. CARR: I object to the leading form of the

question.

THE COURT: Objection sustained. Please rephrase

 

it.

Q. Let me hand youL sir, what has been marked as
Defendant's Exhibit Number 925 and ask you if you would
examine that and identifyiit for me, please?

A. Yes, sir. Thisiis a report from the American
Medical Association whichiis a technical report titled the
Health Effects of Agent O?ange and Dioxin
Contaminants: An Update, 1984.

Q. The first page of that exhibit, sir, is what?

A. The first page is the cover sheet of the report.

Q. Is it a letter,:sir?

A. No, sir. It 

Q. I am sorry, the first page of the exhibit, sir.

A. Imam sorry. The question?

 

 



What is the first page of the exhibit? I

A. It is a brief letter to me from Robert H. Wheater,
Assistant Director of the Environmental and Occupational
Health Program of the American Medical Association.

Q. And the date of it, sir?

A. June 20, 1985, and the letter to me just says as
you requested earlier, I am sending you the latest CSA

report.

 

Q. Okay. And the drganization that generated this

report is who again, sir?

A. The Council on ?cientific Affairs of the American

. 
I I I I
Medical Assoc1ation. 

Q. Let me direct your attention, if I may, sir, to
page 41. 

MR. CARR: Your Honor, I object to this unless it is
shown that this has been published and it is an authoritative
article and subject to peer review and meets the other
requirements of the authoritative articles. Otherwise it is
hearsay.

THE COURT: Okayl I will reserve ruling on the
objection, if you can lay the foundation.

Q. Doctor, the American Medical Association, what is


the American Medical Association, sir?

A. It is an organization of practicing physicians and

 

 

. . t'


all physicians who are licensed can become a member ofian
organization that promotes education, sets standards, takes
positions on various issues and tries to maintain the
standard of medicine in the United States.

Q. And what is the Council on Scientific Affairs,
sir? Is that a portion of the 

A. Yes, sir.

Q. And does Exhibit 925 list members of the Council of
Scientific Affairs?

A. Yes, sir.

Q. Would you tell us who they are, sir?

 

A. A Doctor Beljan is the Chairman, Doctor Irey,
i
Doctor Kilgore, Doctor Kimura, Doctor Suskind, Doctor Vostal,
and Mr. Wheater is the Secretary.



Q. And Mr. Wheateriis not an MD, correct?

1
A. That is right. . 
Q. Does it have his degree listed after his name?

A. Master of Science.

Q. Now, sir, is this a publication which you consider

 

to be authoritative?
A. Well, it is the official publication of the
American Medical Association.
Q. Do you consider it to be authoritative?

A. Yes, sir.

 

-23

 



ito page 41.

 

Q. Now, Doctor, I would like to direct your attention

A. Yes, sir.

THE COURT: Do you have anything further to say?

MR. CARR: I have no objection to it as long as the

witness says he considers it authoritative.
THE COURT: Fine. The objection is overruled,

then.

 

Q. Now, sir, I would like to direct your attention to
the conclusions portion oi this paper as stated on page 41.

Do you have it there? I


A. Yes, sir.
Q. Would you start with the second paragraph of the

conclusion portions there and would you read it aloud to the

jury, please? i I
1

A. Yes, sir. Workplace exposures on the other hand,

I
have involved components of Agent Orange, especially 

and its contaminant TCDD, and represent a different level of
biologic experience. Definable and measurable effects on

specific organ systems can be described for acute, subchronio

and long term exposures. Chloracne is a marker for

biologically effective exposure in humans and it may persist

for as long as 30 years.

Q. Would you read the next paragraph to the jury

1




 

 


24

aloud, please, sir?

A. A wide range of adverse reactions in animals have

been observed, which are species dependent. For example, the-

guinea pig is the most sensitive to TCDD, while the hamster
is one othhe least sensitive. Adverse reactions in animals
include thymic atrophy in all species, induction of hepatic
enzymes in the mouse and rat, and teratogenicity and

reproductive effects in rodents and non-human primates.

Except for chloracne, however, TCDD has not demonstrated

 

comparable levels of biologic activity in man; that is to
say, no long term effects on the cardiovascular and central
nervous system, the liver, the kidney, the thymus and

4 .
immunologic defenses, and the reproductive function in male,
I

female or off-spring have been demonstrated.

Thank you, sir. ,Now, let me hand you, sir, what
has been marked for identification purposes as Defendant's
Exhibit 926 and ask you to examine that and identify that
document for me, please?

A. This is a report from the National Research Council
of Canada by the committee, the Associate Committee on
Scientific Criteria for Environmental Quality and the title
of this report is dibenzo?para-dioxinsCriteria for their effectSIon man and enV1ronment.

Q. I would like to direct your attention, sir, let me

 

 






. ..
a; 

ask you this. Do you consider this an authoritative i



publication?
A. Yes.
Q. I would like to direct your attention if I may,

please, to page 114.
A. Yes, sir.
Q. WOuld you read the paragraph aloud beginning on the
bottom of that page which goes on for one line at the top of

the next page?

 

A. Human populations exposed to PCDD through
industrial accidents have actually been exposed to a mixture
of chemicals including PCDD and related compounds, 

sodium hydroxide and a possible variety of unidentified

compounds and the actual guantities involved are unknown.

Consequently, interpretation of the effects reported fnom
epidemiologic studies of such exposed populations are tenuous
but it would appear that PCDD and related compounds are I
involved when cases of chloracne are observed. Chloracne,

hypercholesterolemia, alopecia and hirsutism and various

 

neurologic and anomalies are common signs and

reported. Data on incidence of neoplastic diseases
in human populations exposed to PCDD are equivocalposs1ble association between PCDD exposure and 

cutanea tarda remains unclear.

 

 



What are neoplastic diseases, sir?

A. Neoplastic disea
including bumps on the ski
as well as tumors that are

Q. Now, sir 

MR. CARR: Your 
given me of this last exhi
the middle of a paragraph

a complete copy if we are

 

It is Exhibit 926.

MR. HEINEMAN: I

ses refers to all new growth
n, polyps, tumors that are benign

malignant.

onor, the c0py that counsel has

bit is not complete. It stOps in
on page 120. I would like to have
going to use it with this witness.

a

think the copy I have stopped here

I
too. we will get the full'c0py and bring it.

THE COURT: Plea

copy for your exhibit.
MR. HEINEMAN: 
Q. Let me hand you,
Defendant's Exhibit 914 an
attention well first of
jury again what that docum
A. This is the arti
Cutaneous Signs of Systemi

Related Chemicals that was

se do so and substitute the full

will indeed.

lsir, what has been marked as

I would like to direct your
all. W0uld you identify for the
ent is?

cle by Doctor Dunagin titled

Toxicity Due to Dioxin and

?published in the Journal of the

American Academy of Dermatology.

Q. _hnd first of all

 

2

7

 

April of 1984.

Q. All right. First of all, sir, I would like to
direct your attention to the abstract which is on page 688,
the second page of the exhibit.

A. Yes, sir.

 

Q. I direct your attention to?a sentence, the fourth 

 

sentence in that abstract. WOuld you read that aloud to the 

jury, please?
A. Chloracne is the most sensitive indicator of
significant dioxin exposure.

I

0. Thank you, sir.;

I

Now, would you read the next .
sentence aloud, please?

A. cutanea tarda and hyperpigmentation are
other known effects and malignant fibrous histiocytomas of?
the skin may possibly be associated, although data are
inconclusive at this point,

MR. CARR: On thi% point.

Q. On this point. hay I direct your attention,
please, to page 696?

A. Yes, sir.

Q. I would like to have you read the sentence
beginning at the bottom offthe left?hand column that goes on-

for a couple lines at the top of the right-hand column?

A. Epidemiologic studies of workers exposed to dioxin

 

 

 

 

:i


.
5
I I


-

after industrial acc1dents have shown no increase in the
overall incidence of cancer.

Q. All right. Now, is there a citation for that

statement?

 

A. Yes, sir. There are five citations.
Q. Five references?

A. Right.

Q. What is the last reference listed, number 50? What 

is that?

 

A. In the bibliography. so is Zack, Suskind RR. The'
I
mortality experience of workers exposed to

tetrachlorodibenzodioxin ih a trichlorophenol process

accident, published in the Journal of Occupational Medicine,

volume 22, pages 11 to 14, 1980.

 

Q. So the last one is cited is Zack-Suskind?

A. Yes.

I .

.Q. There are four others listed, what are they? The

first is number 37.

 

A. Number 37. That is Pazderova, Vejlupkova, 

Pickova, et al, and the paper was the develOpment and

I
prognosis of chronic intoxication by tetrachlorodibenzo?para4
dioxin in man, published in the Archives Environmental

Health, volume 35, pages l.to 11, 1981.

Q. What is number 38, sir?

 

29

 

report by Huff, Moore and Saracci et al.
Long term hazard of dibenzo-dioxins and
dibenzo-furans and was published in the
Environmental Health Prospectives, volume 36, pages 221 to
240 in 1930.

Q. And we have seen that article before, have we not,
sir? I

A. Yes, sir.

Q. As far as we know, is that the same article that is
an exhibit in this case?

A. I think so.

Q. And there is another one cited, number 44. What is
that, sir?

A. That is a report by Thiess, hentzel-Beyme and Link
titled Mortality study of persons exposed to dioxin in a
trichlorophenol process accident that occurred in the BASF AG
on November 11.

Q. November 17?

A. November 17, 1953. Published in the American
Journal of Industrial Medicine, volume 3, 179 to 189 of 1982.

Q. And there is another citation, number 45?

A. Number 45 is a report by May, Chloracne after the
accidental production of tetrachloro 

Q. Excuse me. Chloracne?

 

30

 

(From_the accidental production of

 

asked the witness.

 

tetrachlorodibenzodioxin. British Journal of Industrial
Medicine. 1973.
Q. All right, sir. Now, Doctor Roush, Mr. Carr
questioned you with respect to the creatinine results in the
METPATH Laboratory on the Suskind?Krummrich study. Do yoh
remember that, sir?
A. Yes. sir.

Q. And can you say, sir, that the creatinine levels

 

reported there are abnormal?
A. No, sir. i
Q. And why not, 811?
A. Because it is erorted in milligrams or grams, I am
not sure the units, per liter of urine and you can't
translate that into per d%y. The amount of creatinine a man
puts out per day is dependent upon our muscle mass and so the
range --

MR. CARR: I believe all this has been gone into_

again by the Doctor and I object to its repetition.

 

MR. HEINEMAN: your Honor, Hr. Carr specifically
questioned him about creatinines.

4
MR. CARR: But you have asked him these questions
5' I .
already. Why don't you get on to something that hasn't been
1

I

1

 

 


?Iu?24

 

 

THE COURT: Objection sustained.
Q. Now, Doctor Roush, do you require a 24 hour urine
in order to determine an accurate creatinine?
A. Yes.
Q. And these were spot urine samples?
A. Yes.
Q. When you reviewed those METPATH Laboratory results_
on the various people, in response to our questioning here in
the courtroom, did you know what the Checkmarks were-that Mr.

Carr had on_Exhibit 1507 for the other abnormals?

A. No, sir. 

 

Q. Those checkmarkg were not identified, were they, as
1 1
to what the abnormals chebked were? I

A. No, sir.

Q. And so what didiyou do in making a_determination as
i

to whether there were any other abnormal lab results

I
reborted?

A. I just went through the rebort and-determined how
many there were marked as abnormal.
Q. When you say maerd as abnormal, you mean in what,
sir? i -
A. in the final page there is a listing of the results
out of the range of normal and so we took from that those.

that were truly abnormal.

 

I

 

b2

i
I

 

Now, included in that list, sir, are 

A. Yes.
Q. and the creatinines, are they not?

A. Yes.

 

Q. Now, if they are listed there with abnormal
findings, why are they not abnormal also?

A. Because they don't put a range of normals for those
determinations because they haven't been prepared. There are
no standard normal ranges for the 

and creatinines on a spot sample basis.

 

Q. ?Does measuring the urine do anything for allowing
the use of spot sample urine?

A. No. I

Q. Now, I would like to direct your attention to
Defendant's Exhibit 55. ?0 you recall Mr. Carr directing
your attention to Defendaht's Exhibit 55 which is the
Missouri Dioxin Health Sthdies Progress Report?

A. res, sir.

Q. And he directed your attention to a table, an
Appendix A on page 49. DP you recall that; sir?

A. Yes, sir. i

Q. And that table talks about the findings,
does it not? 

l_

A. Yes, sir.

 

83

 

 

Does it list the actual findings of the
peOple that were in the study?

A. No, sir.

Q. What does it address itself to?

A. It is a description of what Strik and Coleman think

 

are the ranges of nOrmal as well as 
.. 
chronic hepatic 

Q. You used the word Strik. We have had a different
pronunciation used in this courtroom before of Strik. iwould

I
that be -- Do you accept that? 

 

A. Sure.

Q. All right. Now: if I can direct your attention to
page 36 of this report, wdat did they actually find with
respect to the of the people that were examined
there? I hope I have directed you to the right page.

A. They are talking about liver function tests in the
tOp paragraph on page 36 but it is a continuation of the same
paragraph'on the preceding page in talking about their

xamination of the liver and then talking about 
It continues. The exceptions were in elevation of mean

urinary for the low risk group and an
elevated mean serum bate-glucuronidase level in the high risk
group which failed to read statistical significance.

Furthermore, no excess prevalence of abnormally elevated or

 


3;


4

 




low, outside of expected age- and sex-specific ranges, serum

analyte measurements of liver function were noted for

individuals in the high risk group. The two groups showed no

difference in characteristic urine patterns and no

cases of overt cutanea tarda or any precursor

conditions were detected. 

Q.

Thank you, sir. Now, do you recall Mr. Carr:
i

talking'to you about the people at Times Beach?

A.

Q.

Beach got

would produce chloracne.



Yes, Sir.

 

i

And he asked you whether or not anybody at Times
chloracne. Do you remember that?
Yes, sir.

And what was your responSe?
I
No, they did not.
No one at TimesQBeach got chloracne?
Right.

Why didn't they get chloracne, sir?

Because their exposure was below the level at which

According to this report of the Missouri Division

 

of Health, Center for Disease Control, St. Joseph's Hospital

of Kirkwood and St. LouisiUniversity Hospital, did they find

anything else statistically significant to be wrong with:

these people at Times Beach in comparing the low risk and the

 


U1

 

 



high risk groups?
A. No, sir, nothing.
Q. Sir, do you remember Mr. Carr questioning you about
what was told the EPA by Monsanto Company in 1979?
A. Yes, sir.
Q. And did you tell him, sir, about your discussion
with Doctor Paget?
A. - Yes, sir.
Q. And what it was that Doctor Paget told the 
A. Yes, sir.

Q. Do you remember Mr. Carr asking you this question,

 

sir.: "And, Doctor, I think we have established that neither
you nor Doctor Paget nor the EPA nor anybody else has any
memo to that effect, have we not, sir?" And you answered,
"No, sir." Do you remember that, sir?

Do you know, sir, whether or not the EPA has any
memo regarding what, whether or not they consider the dioxin
at Sturgeon to be 2,3,7,8?

A. Yes, sir.
MR. CARR: Your honor, that is not what I asked the


witness and counsel has said that they told the EPA to assume



that it was and that is what that question had been

directed to, not what thelEPA did in fact assume and it is




misleading to ask in that;context and I object to it.
1


I

 

35

 

THE COURT: Objection is sustained.
Do you know,_sir, whether or not the EPA in fact
treated the material-as it it were the highly toxic 2,3,7,8
TCDD isomer? .

A. Yes, sir.

 

Q. Now, do you have Plaintiffs' Exhibit 1273. Let me

hand you, sir, what has been marked as Plaintiffs' Exhibit

I
1273. Do you see that, sir?

A. Yes, sir. 

Q. And what is that document?

A. This is a report titled Dioxins prepared by
Esposito, Tiernon and Dryden.

Q. Is there 1

A. Of the Industrial EnvirOnmental Research LabOratory



in Cincinnati, Ohio, in November of 1980.

I

Q. There is contract numbers that are listed there,
are there not, sir? 

Yes, sir.

Q. And there are, it has got an EPA title on it, does
it not? 

A. There is a reference number on top, the EPA
number. It is EPA 600-28u197, November of 1980.

1
Q. And on the bottom of that page that you are looking

at, sir, what reference does it_have to the United States


I
i

 

37'

 

Environmental Protection Agency?

A. This Industrial Environmental Research Laboratory
that I mentioned where this came from is a part of the Office
of Research and Development of the United States
Environmental Protection Agency in Cincinnati, Ohio. I
Q. Let me direct your attention to page 79 of this

Plaintiffs' Exhibit 1273.

A. YES, Sir-

 

MR. CARR: What page counsel?

MR. HEINEMAN: 

THE COURT: Before we get into this, is this a good
point for a short break?

MR. HEINEMAN: Sure, Judge, that would be fine.

THE COURT: Ladies and gentlemen, we will take a
short break at this time.? I would remind you that this would
go for any other breaks that you are not to discuss this
matter among yourselves oi with anyone outside the jury panel
or as of yet form any Opinions or conclusions about the
matters on trial. Court will be in a short recess.

COURT 

(The following proceedings were had in the hearing

and presence of the jury)

 


O3

 

 

24.

 

 

GEORGE ROUSH
having resumed the witness stand, being previously sworn,
testified further as'follows:

RECLARIFICATION EXAMINATION

BY
MR. KENNETH R: HEINEMAN .
THE COURT: Before we go ahead, I want to make an

announcement that we are going to break early this

afternoon. We are going to end at one o'clock so what we

 

will do is we will go through the lunch hour basically and
close to one o'clock and then we will adjourn for the day and
start tomorrow morning at the normal time.

MR. HEINEMAN: Four Honor, we had previously marked
Defendant's Exhibit 926 which was only part of the book from
which it came.

THE COURT: That was the one that ended in the
i
i

the entire book here. I like to have it marked in
i

middle of the paragraph.

MR. HEINEHAN: ?ith the Court's permission, I have

 

blace of 926.

THE COURT: Anygobjection to that, Mr. Carr?

MR. CARR: No ob?ection then.
THE COURT: Fine. Why don't we do that.

Now, Doctor Roush, let me hand you what has been
1 .
I




 

39

 



Ithis is a part of that and that he considers this

 

marked as ?efendant's Exhibit 926 and would you identify thit
document for me, please?

A. This is a report by the National Research Council

of Canada.

 

THE COURT: Wasn't it previously identified?

.
MR. HEINEMAN: hell I just want to demonstrate that 

I

. .. . 
authoritative. 

THE COURT: Okay.
A. This is a report by the National Research Council
of Canada by the Associate Committee of Scientific Criteria=

for Environmental Quality-and the topic is 

dibenzo-dioxin. Criteriaifor the Effects of Man on his

Environment.

Q. And you are familiar with this full book which is 1
Exhibit 926?

A. YES: Sir. 

Q. And do you consider it authoritative?

A. Very much so, yes, sir.

Q. And is our prior Exhibit 926 which we are now
1

withdrawing and replacing'with the book you have before you,

it runs from pages 111 toI120, correct?

A. Yes, sir.

i
Q. And are these pages 120 from the


5n

 

40

 

 

0Jprevious 926 the same pag



A. Yes, sir.

Q. All right. Tha
your attention again plea
you have before you there
has been previously marke
Would you look at page 79
Exhibit 1273A is a copy 0
of 1273?

A. Yes, sir.
the jury? If not I would

THE COURT: Has

MR. CARR: I am
can't be absolutely sure
been passed to the jury.

THE COURT: It
if you wish.

MR. CARR: They

MR. 

13

Now, sir, what
A. Chloro-dioxins

the new 926?
nk you. Now, sir, if I could direct
se to Plaintiffs' Exhibit 1273 which
and I would like to hand you?what

as Plaintiffs' Exhibit 12733.

sir, of 1273 and tell me if

table 111 from pages 79, 80 and 81

 








Your Honor, has 12733 been passed to
llike it to be.

I

{it been?

sure it has been, Your Honor, but I

of that. Most of our exhibits have
I

Has been admitte? so you may pass it

Wave got it already.
?es, they do have 1273A.

is the title to table 11, sir?
reported in chlorophenols.

the top of the chart table 11 On

page 79, a reference to orthochlorophenol?

'l


 

41

 

miYes, sir.

Now, first of all, what is the date of publication

November of '80.

November of 1980. All right. Now, if you look at

.5

orthochlorophenol there, sir, there is a column entitled

TCDD. Do you see that?

A.

Q.

Yes, sir. 

And right above that column.does it list the units

in which the numbers are expressed?

Yes, sir.

What is that? What are those units?

 

In parts per million.

Parts per million. And if I can direct Your'
4

1 
attention to where it says orthochloroPhenol, do you see the

. 
number there that says .037?

Yes, sir.

That would be .037 parts oer million?
Yes, sir.

What would thatibe in parts oer billion?
37 parts oer billion.


Does that number soun? familiar to you, sir?

Yes, sir. 5
And what do theyihave in parenthesis next to the 37




 

4:2

 

parts per billion?
A. 2,3,7,8.
Q. Then they have a footnote, correct?
A. Yes.

Q. Let me direct your attention to the third page of

.Exhibit 1273A for footnote B.

A. Yes, sir.
Q. What does it say there?
A. Presence of 2,3,7,8 TCDD confirmed but not

quantitatively reported.

 

HR. CARR: Your honor, all this has been gone into
with other witnesses and hr. Ieineman wasn't here at the time
but this has been gone into. This is repetition.

THE COURT: I believe it is. Objection is
sustained. .

MR. HEINEMAH: Well, Your Honor, the issue that Mr.
Carr went into with this witness was whether or not the EPA
knew that, whether the EPA did not know nor did it assume
that the 37 parts per billion reported by Monsanto was
2,3,7,8. That is why I as going into this.

HR. CARR: No. that is not the issue. We have
exhibits into evidence wh?ch has shown and witnesses have
testified that Monsanto them that they had 37 parts per

billion. That only a small fraction of it, if any, could be

 

43

 

 

2,3,7,8 TCDD. That has been gone into with other witnesses.
This exhibit has been explained. All we are doing is
covering territory that we have covered months ago.
THE COURT: This has been in already. Objection is
sustained on the basis of repetition.#
I Q. Now, Doctor, let me hand yod, sir, what has been
marked as Defendant's Exhibit 875 and you will see I

direct your attention to the last page of that exhibit. Do

you have a memorandum there from Doctor Paget?

 

A. Yes, sir.
Q. Dated February 12, 1979?


i

Q. Now, Mr. Carr asked you, sir, whether or not you


A. Yes, sir.

told Doctor Paget to tell the EPA to assume that the dioxin
in the tank car was all 2,3,7,8. Do you recall that, sir?

A. Yes, sir. .

Q. And you said you didn't think you told him that.
Do you remember that?

A. Yes, sir.

Q. What do you think you did tell him?

A. I told him to consider that the 37 parts per
billion should be considered toxicologically as though it

could be there without definition whether we knew it or not

but for our consideration we were to act as though that 37

 

44

 

 

Ryparts 9e: billion was 2,337,8.

Q. To act as though it were?

A. Yes.

Q. Now, did you tell him anything about what he should
tell the with respect to what we consider to be a hazard
on the 37 parts per billion?

A. ?We told him we didn't think that was a hazard.

Q. Now, what did you tell Doctor Paget?

A. That we would consider that even if the 37 parts
per billion were all tetrachlorodibenzo?dioxin, that
we didn't think there was:a hazard to man with that
concentration in the orthochlorophenol-crude.

Q. And, would you need aloud the first paragraph of
the memo by Doctor Paget dated February 12, 1979?

MR. CARR: Your Honor, that is repetition. we went
into that thoroughly with Doctor Paget. He testified at
length about his memo.

-THE COURT: Objection is sustained. That memo has

been read a number of times.

 

Q. Well, would youfassume, sir, that the evidence is

1

that Doctor Paget told the EPA that the 37 parts per billion

i
found well, strike thatr Would you assume, sir, that

Doctor Paget told-the EPA that he did not think that the 37

parts per billion found changed our feeling that no hazard

 

4?

 

 



was involved either for the people of Sturgeon or for the WES

crew clearing up. WOuld you assume that?
A. Yes, sir.
Q. Assuming that, sir, would that, had he done that,
would that have been in compliance with your instructions?
A. Yes, sir.
Q. Now, would you assume further, sir, that there has

been testimony from Doctor Paget, from Doctor Kaley and

 

Doctor Mieure in this case that in February of 1979 Monsanto
could not be iSOmer Speci?ic for 2.3.7.8 TCDD. WOuld you
assume that, sir?

A. Yes, sir.

Q. If you assume that to be true, is-there any way

I 
that Doctor Kaley could have known that estimate 90 percent

was the 2,3,7,8 isomer? 
I


MR. CARR: Your Honor, all that has been gone into
clearly. It is repetition and I object to it.

THE COURT: Objection is sustained.

Q. Now, Mr. Carr asked you, sir, when he was talking

 

to you about lung cancer and he was talking about the Nitro
I



morbidity study. Do you?remember that, sir?
A. Yes, sir.
Q. And, excuse me. He was talking about all thelNitro

studies, morbidity and mortality. And he asked you, sir, if

 

45

 

 



Monsanto knew that lung cancer could Occur by chance, why go
through having these studies done. Do you remember that,
sir?

A. Yes, sir.

 

Q. Is there any way prior to the time that the studies

were completed-and the results were made that Monsanto could
have any idea what the occurrence of lung cancer was in that
population? 
A. No, sir. No wa% they could know what the results

are going to be.


Q. So was there any way you would know in advance wnat
.



the statistics were goingito show?



A. No, sir. 

Q. What is the, what does the expression occurring by

chance refer to in connection with the statistics that are




the result of the-epidemiological study?

A. In all of epidemiology, we compare what we observed
with what some definition of expected is and to do that
comparison, you do a statistical manipulation of the data and

what you really are looking to see if you did it again, could
it happen again just by chance. 30, all that really says is

there is no statistical difference between those two

J1 

populations. The observed and the expected could occu: by

chance without them having had any exposure to anything.

 

an}?

 

 

Would that be true, sir, even if you combined the
Zack?Suskind and the ZacknGaffey studies??

A. The likelihood of statistical significance is based
on the size of the population being studied. If you take two
groups inywhich there is no statistical valid effect and you
put them ?ogether, you now have a_population that is now the

sum total of both of those two studies that you have

 

completed-. When you put them together, now that denominator,
the sum total of both studies affects the interpretation of
the observed over expected. So, you can have two studies
that are not statistically significant that can become
statistically significant'if you have a large group. But if

i

you have two groups that are not statistically significant
and put them together, the likelihood of something being
statistical is nill.
Q. It is small if you put two together that are not?
A. If they are not statistically significant

themselves and you put them together, in all likelihood you

found that you do not have a problem but When you are doing

 

what is called a PHR, when you are talking about just

percentages, PMR is a study not of what the absolute effect

is but rather it is a comparison. When you put them together
i
in a PMR, you will get a different result than if you do an

SMR. So we put together an SMR and a PMR and when you do

48

 

_that, you can't be sure what is going to take place but in

all likelihood they will not be different than either one of
them.
Q. The SMR is standard mortality ratio?
A. Right.
Q. National?
The standard mortality is looking at the experience
of each subgroup, those that have cancer by themselves rather

than looking at cancer as part of the total. SMR is what we

 

call the life table analysis. is just looking at the

causes of death and finding what percent of it is cancer and

1

how much is heart diseasejor what.

1
- 1
Q. Right within that same group as opposed to like the

population in general?J
A. Yes, but even when you put them together youican't

predict what is going to happen because now the expected

changed. When you put down the expected for any group, the-

expected for any one of these, these analyses are

standardized by comparing them to national averages and

 

comparing the national averages you compare them by age
specific. So each one of them before you can put them

together have to be corrected for age and if you haven't done

I
i

1


itlr you can't put them together because the expected is

differentf"?. i

 

i
419


 

 

All right. Now} when questioning you about these
studies, do you recall Mr. Carr asking you about those
employees who had worked before 1955 but had been terminated
or retired prior to 1955 and whether or not they were
included in the studies? Do you remember that??
A. Yes, sir.
Q. And the answer is?
A. No.

Q. They were not?

A. Not unless they were present: Those who were

 

1
working before 1955. If they were still working, they would

be a part of it but those who had separated before 1955, they
would not have been.

Q. All right. Now: do you remember Mr. Carr
suggesting to you that those pre 1955 employees have the
highest exposure and the ?ongest exposure? Do you remember
that?

A. Yes, sir.

Q. Now, if the plant started, if plant production

 

started in 1948, would those people before terminating before

1955 have a longer exposure than people who had worked from 

1955 for several years thereafter?



A. No, sir.

Q. They would have a seven year maximum, right?

 

50

I

 

'recall,

Exhibit 1487, Sir?

Yes, and from '55 to '69 is 14 years.

Now, with respect to the highest levels, do you

sir, Mr. Carr talking to you about Plaintiffs'

No. 

You don't?

 

Well, I can assmre you that he did. Well, perhaps-I,

if you put it together with 1486context maybe.

Do you recall Mr. Carr talking to you about the

levels of dioxins found id Monsanto's products at the Nitro

Plant over a period of years?

A.
Q.
A.

Q.

I
Yes, sir.

All right. Do you remember that, sir?

Yes.

And did he have kou look at Plaintiffs' Exhibit

1487 at that time?

A.
o.



A.

Q.

Yes, sir.

Now, what is theihighest level reported there, sir?
55.

55 what?

55 ppm. . 

?arts per million. And what year did that occur?




 

51

 

 

1965.

Q. Sor would the people who were employed at the Nitro
Plant between 1948 and 1955 have the highest level of
exposure based upon any information that was presented to
you?

A. I don't have before 1955.

MR. CARR: I dOn't have before 1958, not just '55.

 

Q. So there isn't anyway you can know based upon any
records that were given to*you by Mr. Carr what the levels of
exposure were in 1955 or oefore, correct?

A. No, sir. That 1% correct.

Q. And what you can+see from those levels, what were
the levels in 1953? 

A. 11 ppm. I

Q. What were the levels in 1961?

5 ppm.

Q. xAnd the highest levels on that list were 1965?

A. Yes, sir.

Q. We have no information or do you have any

 

information that the people who were not studied because they
left the company before l9?5 had higher exposure than the
people that were studied because they were with the company
from '55 to '69? I

A. No, sir.

 

 

?MR. CARR: I obj?ct to that, Your Honor. They have-
got Exhibit 1482 which is a Monsanto d0cument, Marcy Strauss
says these were the people that were the highest exposure.

It is Monsanto saying it. It is not in accordance with all
the evidence that is here.
Q. Doctor --

THE COURT: Wait a second. Do you want to address-

 

that objection?
MR. HEINEMAN: well, Your Honor, the witness has

said before what Marcy StrEuss was doing in the preparation
of that document which wasjasking rhetorical questions in



connection with the Nitro litigation and Mr. Carr keeps

-

accepting these as facts ahd i would be happy to inquire with
respect to this witness if there was any way that Marcy
Strauss could possibly know whether or not the levels were

higher before 1955CARR: if witness knows and 1t 13

?onsanto's dockment. She doesn't ask the questions. She says
those are the people with the highest exposure.
THE COURT: Objection is sustained.
Q. Doctor, you have seen Plaintiffs' Exhibit 1482,
haven't you?
A. Yes, sir. 

Q. Zou recall Mr. Carr inquiring of you about that

I


 

53

 

 

document?
A. Yes, sir.
Q. What was Marcy Strauss doing when she was preparing
this document?
A. She was preparing questions that she thoughtiwere
hard questions for the Nihro Plant to answer in their

litigation on the Nitro lawsuit.

 

Q. Questions that would be asked by whom?

A. By the plaintif?s' attorney.
1

Q. Did she nave anj information of which you are aware


a nu 1 
to establish that the expdsure levels prior to 1955 were
indeed higher than they were afterwards?

MR. CARR: Objection. Unless counsel first

. .
I I
establishes that he knowsg that the witness knows what'Marcy
Strauss had access to andithat it included or did not ihclude




the products of the NitrofPlant. 

THE COURT: Objection is sustained. You are to

establish that first serole asking that question.

Q. What was Marcy trauss looking at, sir, when she

i

was preparing these documents?



A. Her epidemiologfc data that was available to her on

the Nitro Plantthat the same epidemiologic data we have bLen



talking about in this countroom?


i

 

i

5.4

 

 

.Yes, sir.

Q. All right. Is there anything in that epidemiologic
data that we have been talking about in this courtroom that
establishes that the levels prior to 1955 were higher than
they were afterwards?

A. F10, Sir.

MR. CARR: Your Honor, I object to that unless it is? j3?%


-. . 

 

established that we have all the Nitro Plant data in this

courtroom that Marcy StrauSS had access to and all the
personnel she had access to and all the other information
that she had. I

MR. HEINEMAN: Well, Mr. Carr, you have been saying
that all of your questionihg on this witness has been based

on all of that data.

HR. CARR: It is based upon Monsanto's documents.

a I

It says, 1482, that Miss Strauss says that people that were
terminated before 1955 are the people with the highest
exposures.

MR. HEINEMAN: May I see it?

MR. CARR: Well, ?ou have got 1482.

MR. HEINEMAN: May I just take a look at that
please? .

MR. CARR: Sure. i

THE COURT: Objection is sustained. You will have
. . .

 

55

 

 

establish that.
MR. HEINEMAN: I am sorry, Your Honor?
THE COURT: I sustained the objection.

Q. Now, Doctor Roush, Mr. Carr was going over with you
the Zack?Gaffey study. Before I get to that, Your Honor, the
document that Mr. Carr just handed me,.1482, the title of
it --

MR. CARR: 1482, is that correct?

MR. HEINEMAN: 1482.

 

Q. The title was H?gh Priority Questions. Do you
remember that, sir? i

A. Yes, sir. i

Q. Now, in talking hith you about the Zack?Gaffey
study, Mr. Carr suggested to you, did he not, that the
Zack?Gaffey study shows an-excess of bladder cancer in those
exposed to Do you remember that?

A. Yes, sir.

Q. Let's look at the Zack?Gaffey study. Let me hand

you that, sir. It is Plaintiffs' Exhibit 2181, Defendant's

 

Exhibit 65. Do you see that, sir?
I

A. Yes, sir.
Q. Would you turn to the table, table 9, sir?
A. Yes, sir.

Q. Mr. Carr questiohed you about this table in this

I
i
I

 



 

 

connection, did he not, sir?
A. Yes, sir.
Q. What does the table show with reSpect to 
exposure and the occurrence of bladder cancer?
A. In the exposed, the expected bladder cancer %n a?
population of 58 would be .22 bladder cancers and the

observed was 2 and the PHR is mixed up because it is 

related to the percent of the total but~the PMR is 909 which-

 

means it is 300 percent anove expected and we are talking'
about something less than one to two cancers. The expected

is something less than oneLand they found two. In the

unexposed, a pepulation th is twice as large, they expected
.65, something less than one. And they found seven so they
found a striking number, three times as much in a pepulation 
twice as large. Now, because the population is larger, as I
said before, the bigger the pOpulation, the more likely you
are going to get statistically significant. It was
statistically significant in the unexposed but they had more
bladder cancers for the same population size in the unexposed
than they did in the exposed.

Q. And what was the5cause of that, sir?

A. Why did they have bladder cancer? a

Q. Yes, sir?

A. Because they were exposed-to the

I


 

57

 

NI

22

23

24

 

 

paraphenol?biphenol.

Q. That was a product that had previously been

manufactured at Nitro?

A. And the interesting thing is that this study

brought it out and showed
there only being seven.
Q. What do you mear

A. We were able'to

1 it brought it out?

it desPite there only being two and

observe the PAB effect in this

study.? We were able to find an effect in a population that

was different from normal

study such as this.

that could only be detected by a

Q. And is there any relationship betWeen the PAB and

the 

 

A. Not on this study.

The opposite is the case.

Q. Now, sir, when Mr. Carr was questioning you about

the Times Beach study, he

suggested that that was done

said I suggested it was done, pardon me. He suggested

didn't say that it was done on questionnaires. Do you

remember that?

 


A. Yes, Sir. I

Q. Now, was the Times Beach study reflected in


Defendantls Exhibit 55 which you have before you there

by the Centers for Disease Control and the St. Louis

University, was-that done!

solely on questionnaire?

or he

I

 

 

they not?
A.



No, sir.

As a matter of ?act, questionnaires were used, were

Yes, sir.

And it was based on questionnaires that they mace a

determination as to who was in the high and low risk group?

A.

Q.

does it contain tables re?lecting physical data?

A.


A.
Q.

-not?
A.
Q.
A.
Q.

am asking

Yes, sir.


But with respect to the examinations, the document,

 

I


Yes, sir. 
i

Laboratory results?

Yes, sir.

 

-These people were examined by physicians, were they

Yes, sir. i

There was a neurological examination as well?
Yes.
Now, Mr. Carr suggested to you, sir, or did he, I

you, did he suggest to you that Monsanto has done

 

nothing at Sturgeon since the cleanup occurred to prevent

human exposure to Do you remember that?

A.

Q.

Yes, sir.

i
I


Has the EPA done anything at Sturgeon since the

cleanup to prevent exposure to 

 

 

59

 

No, sir.

Q. Has the Center for Disease Control done anything at
Sturgeon since the cleanuo to prevent exposure to 

A. No, sir.

Q. Has the Missouri Division of Health done anything
at Sturgeon since the cleanup to orevent expdsure to 

A. No, sir.

 


Q. Has a study of the physical effects of a high:risk,

low risk group like was done at Times Beach by those thFee
organizations, has that been done in Sturgeon?

A. No, sir.

 

Q. Why hasn't anyoo?y done anything up in Sturgeon?
1
MR. CARR: I object unless the witness knows, Your

Honor .

.
THE COURT: Objection sustained.

13
I

Does the EPA list Sturgeon as a ?issouri dioxin
site?
HR. CARR: That is repetition, Your Honor. That has

been gone into.

 

THE COURT: Objection sustained. It has.
9. Now, Carr suggested to you, sir, when you were
discussing the Suskind moibi?ity stu?y that there were people
that had cancer, that hadionly a possibility of exposune or a

minimal or extremely low exposure. Do you remember that?
1

I 

 

6O

 

.siteHas the Center for Disease Control done anything at

A. No, sir.

Sturgeon since the_cleanup to prevent exposure to 
A. No, sir.
Q. Has the Missouri Division of Health done anything
at Sturgeon since the cleanup to prevent exposure to 
A. No, sir.
Q. Has a study of the physical effects of a high risk,
low risk group like was done at Times Beach by those three

organizations, has that been done in Sturgeon?

A. No, sir.

 

Q. Why hasn't anybody done anything up in Sturgeon?
MR. CARR: I object unless the witness knows, Your
Honor.

THE COURT: Objection sustained.

Q. Does the EPA list Sturgeon as a Missouri dioxin

MR. CARR: That is repetition, Your Honor. That has

been gone into.

 

THE COURT: Objection sustained. It has.
Q. Now, Mr. Carr suggested to you, sir, when you were
discussing the Suskind morbidity study that there were people

that had cancer, that had only a possibility of exposuqe or a

minimal or extremely low exposure. Do you remember that?

 

60

 

 

2'2'

23

24

 

 

A. Yes, sir.
Q. And was he questioning you with reSpect to whether
or not those people with minimal or only possible exposure

should be included in the study group?

 

MR. CARR: Your Honor, I object to this. Counsel
can ask a question without suggesting what I am asking
about. I object to the form of the question. He can direct
the witness to a subject and ask the question but I obgect to
this form. i

THE COURT: I would like you to rephrase that. I
think that objection is well taken.

Q. Let me direct your attention, Doctor, to the

questioning that Mr. Carr did to you with respect to



 

including people with cancers in the exposed group in the
Suskind morbidity study. .Okay?

A. Yes, sir. i

Q. Now, if you included the people who had a cancer
but who had an exposure that couldn't be measured, was only

theoretical, was only posSible, is there anybody else that

you would have to includeiin that study?
I


A. The entire plant.
Q. well, why? you do that?
I 
A. Because we are trying to do a study of those with

exposure and if we include those who have possible exposure

 

 

 

that group, then you have to include everyone because they

haven't been able to separate them by any measurement whether
they were in the exposed group or not so the whole plant
would have to be a part of it.

Q. Can you just pick out the cancers and say I think I
will take these and stick them in there? i

A. No, sir.

Q. So, if you are going to include minimally or I
possibly or theoretically exposed, then you have got to;
include everybody that is minimally, possibly or

theoretically exposed?

 

A. They go into that denominator. Those with possible
effects.

Q. Now, what happens to your ability to find anything
in the study if you do that?

A. If you include those who really didn't have any
exposure into a pOpulation that has significant exposure, if
you do that, then all of those who have minimal exposure and
are not going to have an effect would dilute out the effect
that is observed in the heavy exposure. 80, if everytime you
increase the denominator without changing the effect that is
observed is you'll be deleting what you are going to be
obesrving and that is the say you lOok if are trying to

minimize the effect of a study. If you include all those

1

 

52

 

 

with minimal exposure wheie unlikely there is going to be an

effect, then you are decreasing the likelihood of finding an

effect that is real.
Q. So if you included all of those people 

MR. CARR: Objection to the leading form of the

question.

THE COURT: Objection sustained.

 

Q. Well, what would be the effect on the findings of
the studies, sir, of statistical significance or lack of
statistical significance if you put all those people in?

I

A. If the effect is dose related and the heavy dose is
going to be the one we are looking at, you are going to be
decreasing the number of abnormalities in a larger
population. So, the percentage with effects will go down if

there is an effect from enposure at all.

Q. So what does that do to your statistical

I

significance?

A. Well, if you got an effect, then the statistically
significant will become non-statistically significant if
there is an effect.

Q. So, would it hide the effects that are there?

A. If there is an effect there, it will dilute it so
that you wouldn't see it.

Q. Now, what does that have to do with the study the

 


53

 

 

 

   

studyithose that are heavily 


9h
2 A. what do you mean the way Well, is there any relationship between what 

 

4 have just said and the way the study wasnactually deternin?d?qk;

4"

 

5 A. They took the way it was determined is t?eY9t?0k??i

Ll:

   



6 those that they were confident had heaVy exposure. -Tney.ger?

 

7 so confident in the fact that they had exposure, that allit?t

I

8 chloracne occurred in the'pOpulation that was called

10 unexposed and there was a category in between of something in; 
11 the order of 50 people wh? were questionably exposed. 

12 Questionably exposed as magbe some of them could have 

l3 belonged in the heavy exposure but they maybe belonged in the"
14 no exposure so they left all of those with the questionable_

15 exposure out and those that were called no exposure were less
16 than the questionably expohed so they certainly shouldn't

17 -have been in. So they left out that questionable because

l8 they weren't sure that it wouldn't he diluting and they also

19 didn't want to put it in the non-exposed but they didn't want

 

20 to find an effect in the non?exposed group if there was none.
21 MR. HEINEHAN: That is all the questions I have,

22 Your Honor.
1

I
23 THE COURT: Mr. garr. 

i


24

 

 

 

0?1
-113..- - -



CDD. Do you recall that?

 

RECROSS EXAMINATION
BY
MR. REX CARR.

Q. Doctor Roush, do you recall you paid Northwestern a
considerable sum of money to devise a protocol in 1984 to
conduct a broad and extensive morbidity health study?

A. YesIr sir.

Q. Do you recall one of the sticking points for?
sometime before Northwestern would agree to go into that was
that they required that a true control group he established?

That is, a group of people who did not work in a chemical

 

plant and did not have any possibility of exposure to 2&3,7,8-

 

1
- 1
A. Yes, Sir.

Q. That is what Northwestern required and insisted
upon. Before you can have a true study, you have got to take
people who have not been exposed to the 2,3,7,8 and compare

the plant population to those people before you have a true

'control group, isn't that correct, sir?

 

A. No, sir.


i

Q. Isn't that what ?erthwestern insisted upon so that

the study if you ever do it, that it will have validity?

A. No, sir. That was in the first draft. 
I

Q. Did you convince them that they shouldn't have

I
i

 

65

 

that?

 

A. No, sir. The peer group did.
Q. Is there another draft, then, that I haven't seen
where they have dropped the control group requirement?
A. I am not sure that the next draft has been written
yet{
Q. Doctor, the draft you have got and that we have got

I

and that we have?got in evidence and we have got a lot of
memos where?it went back and forth where they were insisting

that you use a true control group, that is of people who were

not exposed?

 

Q. And they wanted to compare and they believed at

that time that only by comparing a group that was not

eXposed, or didn't have the possibility of exposure to the
plant group, that is the ohly way you could really run a
comparison. Isn't that what they said?

A. Yes, sir.

Q. Yes. Now, have you and Northwestern now agreed
upon conducting a study where you are going to dr0p this true
control group?

A. It isn't Monsantp's agreement.

Monsanto is the pne paying for the study? 

A. Yes, sir.

 

66

 

Monsanto is the Lne that entered into the contract

.
-with Northwestern. Monsanto is the one that paid for Exhibit

1267?
A. Yes, sir.

Q. Monsanto is the one to decided whether the study is

-or is not to be done, isn't that correct, sir?

A. Yes, sir.
I
Q. - If Northwestern makes you or says they will not
I

 

garticipate in a study unless you have such and such a

control group, then there is no way that you have of making
them do that? i
i

A. That is right. .

Q. Now, on the other hand, if Monsanto says to

Northwestern, well we are not going to pay the number of two

- 
and a half million dollars that it is going to cost to run

that study 
A. Yes, Sir-
Q. . If you do have a control group, then Northwestern

does decide whether it will accede to or agree to Monsanto's

 

requirement if it wants t01get the two million dollars, isn't
that correct, sir? I

A. If Monsanto so states.

Q. And has Monsanto now stated to Northwestern

University that if it wants to get the two million dollars,

 

57

 

 I


Mfgagree to a no true centrol group?
A. No, sir.
Q. I thought you said they had dropped it, Doctor?
A. Yes, sir.
Q. And did they drop it? Did not Monsanto object to

you having a control group?
A. No, sir. 
Q. Aren't there memos in which negotiations wend on

for a period of time over the control group?

 

A. Yes, sir.

Q. And that Monsanto was the one, it was Northwestern
wanting a true control grgup and Monsanto saying no, ish't
that correct?

A. No, sir.

Q. Who was saying no?

A. The peer group.'

Q. What peer group?

A. There is a group of eight consultants including

NIOSH and representatives from Yale who is a representative

:of one of the labor unions} a representative from Harvard,

Doctor Monson that we have talked about is on the committee.
There are about eight different representatives and what they

said is they would much prefer to have a graded study of all
i 

people in that plant rather than to try and take a group that

 

68

 

24?

 

 

would be called high exposure and compare that with the noneUljni??

exposed group. What they want to do is to study everyone
including all people who have retired or terminated or

whatever.

 

Q. Well, Doctor, that doesn't take aWay from using a
control group of truly unexposed people?

A. That was their opinion.

Q. Doctor, are you talking about the committee that is

.part of making the protocol?
I

A. The ones who re?iewed the protocol as presented and
what we have had a copy 05.

Q. And have we seen a copy of this?

A. The final one.

Q. This review where you say they want to drop that?

You have seen it apparently and I haven't.

I

A. No, I haven't seen it.
Q. Doctor, what are you giving us? Are you giving us
somebody told you something?

A. I was there when they discussed it.

 

Q. Then you are in fact giving us what somebody told
you. A meeting that you participated in. was there a memo,
was there a note taken at that meeting? Did you take notes?

A. No, but there were notes taken. 1

Q. And you have copies of those notes?

I
I

 

69

 

No, sir.
Q. By you I mean Monsanto?
A. Northwestern has copies.
Q. And hasn't Northwestern given you copies?
A. No, sir.
Q. Have you requested them?

A. No, sir.

 

Q. Have you seen an? such copies?
A. NO. i
0. Doctor, has it bk decided, has Northwestern then
agreed that they are goinglto drop the control group?

A. Yes, sir. 

Q. Has that been done in writing?

A. No, sir. 
Q. It has been donegto you by telephone?
A. I don't know.
Q. How has it been done then, Doctor?

A. By my being at that meeting. It was general

concensus they would rather go that way than what had been

 

presented by Northwestern..

Q. Doctor, it is Northwestern's decision to make and
if what went at that meeting was just peer so-called group
that you were a member of 

A. I was an observer.

 

70

 

 

shape or

you drop
A.
Q.

dropped?
A.

of.

that you
A.
Q.

protocol
A.
Q.

sir, the
A.

Q.

Did you not part?cipate?
Only for information.

Did you not participate?
Yes, sir.
And, Doctor, has Northwestern responded in any 

form outside of that meeting to this suggestion that

the control group?

We didn't suggest they drop the control group.

 

To the suggestion that the control group be

There has been Jothing written on it that I know
And, Doctor, a1; you are talking about is a meeting
attended. When did this meeting take place?

Maybe six months ago.

The protocol that we have in eVidence was the final
submitted by Norghwestern, was it not?

The last one we received.

Yes. That is the only one you received, isn't it,
final one? You haven't received any since then?

That is right.

And that protocol requires for the formation of a

control group, doesn't it, sir? .

A.

Yes' sir.

 

 

 

 

And there isn't anything that you have to the

contrary, is there, sir?
A. I don't know.
Q. Other than what you tell us took place at a

meeting?

A. I don't know.

 

Q. Which we have no notes. You have no copies of
notes to give us to confi?m.so that we can show whetheg or'
not you are telling us th; fact, isn't that right, Doctor
Roush? 

A. I don't know.

Q. You don't know that that is the fact? 

A. The reSponsibility for keeping that is Doctor
Strauls and I haven't kept up with the correspondence or
discussion with Northwestern. He makes all the contacts, not
me. I

Q. Doctor, your company is under order to give us

c0pies of all such documents and may we take it that since we

haven't received such a document, that none exist? That is,

 

if you have been complying with the Court's order?

A. Yes, sir. I

Q. Yes. Then you have no knowledge of anything other
than the protocol that Monsanto prepared and that you paid

for, I am sorry, that Northwestern prepared and that Monsanto




 

72

 

 

10

ll

12

16

17

18

 

 

paid for and is in evidence in this court, 1467 or 1267,
isn't that?
A. The meeting I attended tells me. That is my
knowledge.
Q. Doctor, you will forgive me if I do not accept what

you said took place at that meeting. You have told us 

MR. HEINEHAN: Objection, Your Honor. What Mr.

 

Carr accepts or doesn't accept is not a proper question. He
I

may argue that to_the jury at some point but I object to that

as an improper question.

MR. CARR: I will withdraw the question.

 

THE COURT: It is withdrawn.

Q. Doctor, you understand that you have given us in
the past statements of you saying things that have occurred
in_the past?

A. Yes: sir.

Q. And you have said that the printing, it doesn't say
24 percent never had chloracne, that that table doesn't say

that. You understand there is a lot of things that you have

 

said in this courtroom looting at the document right in front
of you and you have said that it wasn't there and there had
been other occasions where you have said one thing and 10
seconds later you said you didn't say it and the next day you

say you didn't say it. You understand those things have

I

1

 

73

 







occurred, do you not?
A. No, sir.
Q. You don't unders and that?
. MR. HEINEMAN: Objection.
THE COURT: Objection is overruled.

Q. Doctor, do you recall the Court requiring you to
assume that you said certain things when you said you didn't
say them?

A. Yes, sir.

Q. And do you remember the table that counsel just

 

talked to you about where you testified in front of the jury
that that table didn't saygthat 24 percent of those people
never had chloracne according to their reports and according
to that table? Do you recall saying that?

A. Yes, sir.

Q. And that table does say that, doesn't it, sir?

A. Yes, sir.

Q. Now, today after you have talked with counsel, you

agree that the table does say that but I Spent 15 minutes or

 

half an hour with you trying to get you to say that that
table said 24 percent never had chloracne and you refused to
do it and we ended the examination on your refusal to say
that that table says exactly what now you say it does say.

1
Now, Doctor, in View of that, you haven't seen, there is not

 

74

 

single memo that you can1give us, not a single piece of

writing that you can give 5 to confirm the statement that
you say today that Northwestern has agreed to conduct this
study without this true control group, isn't that correct,
sir? I
A. . Yes.
MR. HEINEMAN: Oojection. Please, Doctor, let me
make my objection. I object to Mr. Carr's speech. It

obviously had nothing whatever to do with the question that

 

he told it with and I ask that it be stricken and ask that
the jury be instructed to disregard it as improper.
THE COURT: Objection is overruled.

Q. Doctor, do you n%t agree that if you have a group

of people in a plant that york in a plant and that has three
I

sides of it confirmed dioxin content, on three sides of the
plant for years and years, been there for 20 or 30 years or
close to 40 years, do you not agree that the people in that

plant as you have already said have had some exposure to

dioxin?

 

A. Possible exposure, yes: sir.
Q. well, it is not just possible exposure. I think
you have agreed that the people that go by that Main Street
i

there have had exposure, have you not?

A. I don't know. IEsaid that? I don't know.

I
I

 

7'5

 

Well, you did 54y that.


i

A. I said it is possible exposure.

Q. Doctor, you say that they in fact -- and you haue
said it a number of times. You said in fact nobody in this
plant can be truly unexposed. They have all had some
exposure but you consider it to be in small, not measurable

doses. Don't you recall that being your testimony?

A. Yes, sir._

 

Q. Now, Doctor, they have had some exposure even
though you can't measure iL, haven't they, sir?

A. I don't know. Phssible exposure.

Q. Doctor} you justlgot through saying that you did
agree that they did have ekposure even though you can't
measure it? i

A. If I can't measure it, I don't know.

t. Doctor, I am notiasking you for certain knowledge.
You do know that there is dioxin created in '46. You don't

know that any of these people had exposure?

A. I do.

 

Q. The only ones that you agree have had exposure are

the ones that have chloracne?

A. No, sir. I

Q. Then you do agree that you can have exposure to


dioxin without chloracne?

 

i 76

 



Yes, sir. 

Q. And these people that are working in this area,
even though they don't have chloracne, they may well have
exposure to dioxin? I

A. Yes, sir.

Q. The people working that part in this parking lot

will have exposure to dioxin, wouldn't they, sir?

 

A. I don't know.

I

Q. You don't know that?


A. I don't know tth, sir. .


Q. Doctor, didn't we just get through the fact that

there is dioxin here and-here and here and here and here?-

i


A. Yes, sir.
Q. Now, you are telling me when you say you don't

know, what you are sayinglis that you have no absolute first-
1
I
hand knowledge of that, ish't that what you are saying?
1
A. No, sir.

Q. What are you saying, Doctor?

 

A. I am saying the levels would be so low there that I
am not sure there is any exposure taking place.

Q. Doctor, if thereiis one molecule and that person
comes into contact with one molecule, as ridiculous as that

1 .
sounds, he has exposure, hasn't he?

A. If he comes in cbntact with one molecule then he is

I
I

i

 

77

 

exposed, yes. 

Q. Now, these people that travel the main road of this
plant, have traveled it since 1946 up to 1985?

A. Yes, sir.

Q. They come into contact with molecules of dioxin, do
they not?

A. I don't know.

Q. Do you know that they don't, sir?

A. I know that if any is out there it is going to be
=broken dOWn as soon as it gets out there in hours.

Q. Doctor, if that is true, then, then why are you

 

covering up all these places? We went through this at some
length.
A. Yes, sir. It is contaminated --

Q. You know that can't be true. It is contaminated?

A. YeSf Sir.

Q. As soon as it gets out there it is going to be

it getting out there if you say

destroyed. Why worry abou
Ls going to get destroyed?

A. That is what thejEPA wants.

Has soon as it gets out it

Q. Doctor, the EPA didn't order you to do it.
i

A. I don't know. 1

Q. You don't know that?

A. No, sir.

 

 

78

 

Now, Doctor, have you examined your records at all?:
A. What records?
Q. The records with regard to why you are covering
these areas?
A. All I know is what they said they were going to
do. I don't know why they were going to do it. Besides

that, it was contaminated.

Q. Well, it was contaminated. We have gone all the

 

way through that, Doctor, and do you agree that there is

exposure to people in that!plant?
A. There is possiblh exposure.

Q. Well, Doctor, cap you say that they are not

I
I

I

i
A. I don't know. 5 

Q. Can you say, can you conduct a study and call.the
peOple in that plant unexppsed? Say affirmatively that they
have not been exposed?

A. No, sir.

Q. No. So, you cannot say in a scientific study that

 

these people have not been exposed, can you, sir, because the
possibility is that they have all been exposed?

A. At some level below what I can measure.

Q. Yes. And, therefore, you cannot conduct a study of-

unexposed people and say ?hese are unexposed people if they

 

79

 





are people that work in that plant, isn't that correct, sir?

A. If we use that definition?

Q. Yes. Isn't that correct, sir?

A. If you use that definition, yes.

Q. And, Doctor, iSn't that the reason that

Northwestern wanted and required before apparently non if;

what you say is true, you talked them out of it that theggiv?7:.

required that_you have a group of people to compare these

I


peOple with?

 

MR. HEINEMAN: ijection, Your Honor. He just


totally misrepresented the witness's testimony. He just said~. 1"
you talked them out of it]and the witness just testified that?

i .
the peer group talked them out of it.

HR. CARR: well, somebody. I will accept that
change, Your Honor. 1
Q. That somebody tglked them out of it?

A. Yes,.sir.

 

Q. And you were present at the meeting when it took
place?
1
A. Yes, sir.

Q. And, Doctor, isn't that what Northwestern wanted to

do is to have a true control group?

A. YES: Sir. 
1 II
Q. Because then, Doctor, you see all of these tables





I



1

 

80

 

that we have got. For instance on the and DoctOr
Suskind's second draft of the morbidity study where he put
table 35 in there and he called these abnormal.
Do you recall that?
A. Yes, sir.

Q. And there were 28 or 29 percent of the so?called

unexposed group that had abnormal and 35 percent

 

of exposed group that had abnormal 

A. I don?t remembertthe numbers.

1

Q. Well, something like that. Do you remember that?



A. Yes. 
i
Q. And, Doctor, we went through all the business about

how many that meant, about 30 percent of the people in that
plant or in that study had.abnormal if that was

correct. Do you recall that, sir?

A. Yes. 

Q. Doctor, if You have that many people with abnormal

caused by the chemicals un ess you are able to compare them.
Now, if you compare them with an outside group of peOple and

you find out that this outside group of people have 30

percent abnormal then you can come to a

conclusion, there that PS not necessarily true or

I
correct. You can come to the conclusion that the exposure to

I
i




you can't really say whether or not these are not,

 

81

 

'If you have in your group



'controls, people

 

the 2,3,7,8 TCDD in the Ni
abnormality beca
group also have the same 
come to that conclusion th

A. Repeat the guest
I will restate i

Q.

exposure and they come out

 

--
A. Yes, sir.
Q. Now, you can't 

tro Plant did not cause the 4 i i

use the unexposed, the true controli


I

atio of abnormalities. You could

en, couldn't you, sir?

ion.
so it will be more clear to you.

admittedly that they all have some

with a 30 percent abnormal

ell by that alone whether or not

the minimal or small exposure, whether it takes a very little;

I

bitty bit of dioxin to can
You can't tel
exposed, isn't that correc

A.

Yes.

Q. 'But if you found

that didn

place where they wouldn't

1
se liver damage or abnormal

i
?1

11 because you have everybody 

t, asSuming?

croup of unexposed 



though, in a

't work in the plant,_people some-

have exposure to 2,3,7,8, now, if

 

you found-that that group
then you can come to a con
Correct, but you can come

working in that plant didn

.because the pe0ple who didn't work in the plant and didn't

'1

had 30 {ercent

abnormal 
clusion, it may not be necessarily
to a logical conclusion that the

't cause the abnormal 

 

3

2

 

have the exposure had the same rate of abnormalities. You

could do that, couldn't you, sir?
A. Yes, sir.
Q. But, if you find the outside group has only five
percent abnormalities, that there is a very small segment
like is expected in the:normal population, have
abnormalities, and you have got 30 percent of the peeple that

work in the plant have abnormalities, then you can conclude

that it is working.in the plant that caused it, can't you,

 

sir? I

A. If you have got Enough size'population in both of

them to make that determination.

Q. If you take 400 people in the plant and compare
them to 400 people who haven't worked in that plant, then you
have a true comparison gropp, haven't you, sir?

A. If there are no compounding variables taking place.
I
. I
Q. That is wnat Northwestern wanted to do, isn't it,

A. Originally, yes.

Q. They wanted to do that not just with the 

but with all the laboratories. They wanted to compare a true
unexposed group to these people that either had exposure or

may have had some exposure?or possibly had some exposure or

1

i 

questionably had some exposure, didn't they, sir, and they

 

83

 

19wanted to do it with more than just one plant of Monsanto's,
didn't they, sir?

A. Yes, sir.

Q. And I take it from what you say, that study will
now never take place, will not have a true uneXposed control
group, is that correct, sir?

A. I think that that is probably the case.
Northwestern probably has negotiated with that peer review
since then and I don't know about that.

Q. Well, Doctor, you are not saying then it is final

 

that Northwestern has conceded the point?
i
A. I don't know whether it has.
Q. Doctor, you toldlus earlier that they had, that

i

A. I said at that meeting.

they had agreed to it?

Q. Doctor 
MR. HEINEMAN: Objection. May he finish the answer
without a display here? May he finish the answer to the

question?

 

Q. Go ahead, Doctor. If I have cut you off, please
do?
A. The original protocol was as described with a

control outside of the plant-to make sare it had a good



control.- After the peer review meeting when they reviewed

'r
I
1

 

3'4

 



5'24'

 

 

the documents for the firs
committee, it was decided
that whole population, it
and more important than to
entire population were stu
of the terminated, with th
back, is if they could gra
response curve with increa
than having one group yes
a little bit to minimal, 

heavy and show there was,

time with their peer review
since they were nOt going to study
would he better and more fruitful
have an outside control if the
died with all of the retired, all
e:difficulty of getting them all
de them so that they showed a dose
sing exposure was more important
or no. If they could grade it from

rom no to minimal to moderate to

if they showed a progression of the

 

effect, if the mere low in the no exposed within

and then in the middle min

imal exposure was a little bit

higher and if in the moderate there was a higher one and in

the heavy exposure was hig

hest, then.the effect would be

.
quite clear and all of the?statisticians showing a trend is

more important than saying
Q. Have you finishe

A. Yes, sir.

yes or no.

your answer then, Doctor?

 

Q. Has Northwestern

finally agreed that they will not

use an unexposed control group in this study?

A. I haven't seen aireport where they said that is

what they are going to do.

Q. Then to your knowledge they have not agreed to do

1
I

 

8

5

 

the study without an unexposed control group, is that 
correct, sir?
A. Except for the fact that they agreed with what was

said at that meeting and didn't have any negative point on

it.

9- using an unexposed control group doesn'thgo ?3?3

 

against what you have said. You can do what you have said
. 

and also_have an unexposedIcontrol group, can you not, sir?
i
1

A. Yes, sir.

 

Q. They are not inconsistent. An unexposed control

 

group would help, wouldn't it, sir? If you have an unexposed

control group with no abnormalities and a minimally
exposed group with some abnormalities and a
moderately exposed group with more abnormalities and a

heavily exposed group withia lot of-abnormalities, then you

can come to a very strong conclusive minimum that the TCDD or

something at that plant is causing those abnormalities, isn't

that correct, sir?

A. Yes, sir.

Q. Now, has.NorthweStern University agreed to do a
study without using the unexposed control group?

A. I don't know. 

Q. Now, Doctor, the other studies that were done, the

1
Missouri Health Study, thelTimes Beach, all of the Monsanto




 

86

 

studies. the mortality studies and the cancer studies, the

morbidity study, all of those studies compare exposed to

exposed, don't they, sir? None of them have a control group

of truly unexposed people, isn't that correct, sir?

If we use your definition?
Yes.

Sir.

 

Doctor, the report that Mr. Heineman referred to,

a . -
the Canadian study, Monsanto Exhib1t 926, do you have that

there, sir?

A.
Q.
please;

A.

1
Wait a minute. Xes, Slr.
1

He alluded to a portion of it. Turn to page 111,

Yes, sir.

Talking about chronic observations in humans??

I


1
I

Yes, sir.

Mr. Heineman mentioned the chloracne but on that

'same page at the bottom of the page, it says, does it not,

the second point made by Oliver is the extremely long

persistence of the toxic_signs and the long interval between

exposure to PCDD and the development of elevated blood

cholesterol levels one to two years after exposure. Do you

see that,

A.

sir?

Yes, sir.

 

 



That is said in this study as well?
A. Yes, sir.
Q. And on the next page, page 112, they used the

Suskind-Monsanto study as authoritative for what does or does

 

not happen and the Significance of what does or does net

happen in this study, don't they, sir?
i .

A. In what study?

Q. This report. The second paragraph. -The Zack-

Suskind mortality study?

A. Yes, sir.

 

Q. And they, of courSe, are not aWare of and they
don't know that Doctor Zack that did that creation of that

cohort subsequently used a cohort in which she mixed exposed
people with an unexposed group. They don't knew that, do
they, sir?

A. It has no bearing on this report.

Q. Well, Doctor, don't you believe that the integrity

of the principal author o? a report has a bearing 0n the

significance of that report?

 

A. Yes, sir.
Q. If a scientist is willing to call somebody exposed
to TCDD and treat four people as unexposed to TCDD, doesn't
i
that make that scientist'sicredentials suspect, the integrity
I

suspect?



 

88



 

.
sir. I

Q. You don't think that a scientist's integrity should

 

be questioned when you see that a scientist is putting four
people who were exposed to TCDD and putting them in a group
and treating them as if they were unexposed? You don't think
that is somehow a question on that scientist's integrity?

A. No, sir.

 

Q.. Doctor, then, do you believe that scientists should
be allowed to ignore facts and state falsehoods or state
things that are untrue and that we accept their scientific
results? Do you think that is the way science should

operate?

A. No, sir.

Q. Of course it isn't. And if you find a scientist
who has deliberately misrepresented a fact, doesn't that
cause you to suspect or to be suspicious of everything that
that scientist does?

I don't know what the question is.

Q. Doctor, you don't, you really, you tell me you

 

really don't understand What I am asking you?
A. I am not sure w?at the question you are asking me.
Q. Doctor, I am tefling you, if you read a scientific
paper and you thought tha? scientific paper was based upon

solid grounds and truth add fact and no.misrepresentations

 

39

 

and you came to a conclusion based upon what your beliek is
but you later on found that that scientific paper was based
upon misrepresentations and falsehoods, that would make you
want to throw away the conclusions of that scientific paper,
wouldn't it, sir?
A. Yes, sir.

Q. Now, if you saw that that same scientist was

 

involved in other scientifhc studies, it would make you
i

questiOn the validity of those other scientific studies,

wouldn't it, sir?

A. Not necessarily. 

Q. It wouldn't, Doctor?

.f

A. No, sir.

Q. Doctor, would yoh really accept, if you knew that
somebody had put out a false scientific paper based upon
fraudulent grounds -- 1

A. Deliberately?

Q. Yes, deliberately, would you really accept anything

that that scientist said in any other paper?

 

A. No, sir.

Q. Doctor, the next reference there is to an accident
that occurred in Germany and does it not say there that 17 of
those workers died, six malignant neoplasms of which

1 

four had gastrointestinal cancer, a number significantly



 

90_

 

?war

higher than eipected. However, the number of deaths toidate
are too low to enable conclusions to be developed. Doesn't?
it say that on this page that Mr. Heineman --
A. What page?
Q. The same page, Doctor. 112.
A. Yes, sir. 1
Q. And, Doctor, the only other accident 
A. What was the question? I don't know what the

question was. I was still trying to find your reference.

Q. All right. Doesn't on this, there are three

 

accidents, industrial accidents referred to on that page?
4?

A. Yes, sir.

Q. One is the Zack-Suskind report?

A. Yes, sir. I

Q. The second one is an accident that occurred in
Germany in which it is stated to date 17 of these workers
have died, six from malignant neoplasms of-which four had
gastrointestinal cancer, a number significantly higher than
expected.. However, the number of deaths to date are too low
to enable conclusions to be developed. Doesn't it say that,
sir?

A. Yes, sir. i

Q. And on the third accident referred to there,

actually there are two accidents in one paragraph. One is

 

 

91

the Czechoslovakian accident that shows a high incidence of 
hypertension, hyperlipidemia and an accident in Holland of?
which the Dutch workers exposed to PCDD have an increased
incidence of myocardial infarction. Do you see that, Doctor?
A. Yes, sir.

Q. Now, myocardial,infarction is a long-term, chronic-

I


I


 

effect, isn't it, sir?

A. Yes, sir, possigly.

Q. And, now, Doctog, this study also talks about
findings in accidental exposure of the general population:
doesn't it, sir? 

A. Yes, sirstarts at the bottom of the page
112 but it goes on over to page 113 and the bottom of that
first paragraph discussing;carcinoma, liver cancer, the?fact
that there was a higher increase in.a Vietnam population, it
looks like it is Hanoi, Vietnam, population but do they not
say even in that regard, however in light this is the last
sentence on that first paragraph. However, in light of the
observed relationship between 2,3,7,8 TCDD exposure and
hepatic carcinoma in rodents, the observations of Tung and
others increased the concern regarding such relationship in
humans. DoeSn't it say that, sir?

I
I

A. Yes, sir.


..


 

 

asAnd then it talks about the Seveso accident and';th' i; 
in). 

the top of the next page discussing the Seveso accident,
. t' .4. 

increased in Zone 9'8 Percent,.over that in Zones Qngigih??

2.4 percent. Doesn't it say that, sir?
A. Yes, sir.
Q. That is nearly: well it is better than 
as much neurological damage in the greater zone than in??h?

lesser zone, isn't it, sir?

A. Yes, sir.

.4 
'I-tJh?

 

Q. And also says polyneuropathy of the peripheral 

nervous system was the most common anomaly diagnosed? 

 



"doesn't it say the incidence of neurological damage was also -Jt

incidence of polyneuropathies. Do you see that, sir? 
A. Yes, sir. . . 

. - 4 Eitarm-

Q. Also talks about normal values of SGOT, SGPT 

in the Zone A it, sir? 
A. Yes, sir. 3
Q. And concludes in that paragraph by saying these?" 

data suggests significance changes in liver enzyme activity 

5

associated with the 2,3,7g8 TCDD exposure?
i
I -.
A. Yes, sirfinally concludes, the last two sentences}inwl

that last paragraph, the data available to date indicate the:'






 

 

93

?erSignificant.tox1c effectsiincluding Chloracne, neurological
abnormalities and possibly liver damage were produced
particularly in the Zone A population. It is not possible,

as yet, to evaluate the long-term consequences of the

 

exposure to the populations concerned, particularly in Zone

A. Does it not say that, sir?

Q. And doesn't it also say in their critique, sir,
chloracne -- this is the iast paragraph on that page.
Chloracne, hypercholesterdlemia, alopecia and hirsutism and
various neurological and anomalies are common
signs and reported?

A. Yes, sir.

Q. Doctor, the exhibit, the AHA exhibit that counsel
referred you to, Exhibit 925, this article, first of all, is
a review article, isn't it, sir?

A. Yes, sir.

Q. And you find of the seVen members on that

committee, Doctor Raymond Suskind is one of the members,

 

isn't it, sir? 
A. Yes, sir.
Q, And do you know,.Doctor, of the other seven on that
committee, how many in addhtion to Doctor Suskind have a



connection with the chemichl industry?

 

'94

 

No, sir, I don't. i
Q. Doctor, don't you know Doctor Kilgore there?
A. No, sir.
Q. You don't recognize that name?
A. No, sir.
Q. All right. Wasn't there a Doctor Kilgore that
worked for Dow Chemical Company?

A. I don't think so.

 

Q. All right. If there is not, I will withdraw that
statement. Doctor, you dqn't know, then, I take it, how

many, if any, of these pe?sons other than Doctor Suskind have

a connection with the chemical industry, is that correct,
sir?
A. No, Sir.

Q. And you, of counse, know that Suskind probably of

the members on that committee probably has had from your own
I



personal knowledge, probably had the longest connection with
the subject of dioxin, isn't that correct, sir?
A. Yes, sir. 

Q. Sir?

A. Yes, sir. .

Q. And he, of course, has considerable prestige

because of that, doeSn't sir?
i

A. Yes, sir.

 

95

 

But you also know that he-has been paid for mhny,
many years by Monsanto, contracted with a number of studies
with Monsanto and you know him personally to be a friend of
Monsanto's, don't you, sir?

A. I know he is interested in dioxin.

Q. well, that isn't what I asked you. You know those

Iother things that I stated in that question, don't you, sir?

 

A. I have had no contact with him on this subject
I

except related to the studies he has done friendly basis, it is a buSiness relationship.

Q. Doctor, you know -- are you saying that you don't

i

1

consider him a friend, ande also speak of Monsanto's??
A. No, sir.-
Q. You don't?
A. No, sir. .

Q. He has been working with you since 1949, hasnft he?

A. He is an expert consultant.
Q. He has been paid considerable amounts of money over
that period of time?

A. No, sir.

I

Q. Other consultants are paid as well but he has a
relationship that extends back over nearly 40 years with

Monsanto? 1
- 1


A. We_have never paid him personally.

 

96

 

sorry?

A. We have never paid him personally.

Q. Doctor, let's explore that for a moment. You know
that the salaries of professors that work for universities

and work for institutions of this sort is directly affected

 

by the amount of money that that institution is able to
garner from outside sources. You know that, don't you, sir?
A. No, sir.
Q. Doctor, you don't know that when you get a

ticular department that it carries

government grant for a par

with it, it puts in there part of the requirement is that it
puts in there the salary that they are going to be paid?

A. Yes, sir. i

Q. And it puts in there whether or not there is going
to be increases in salary, doesn't it, sir?

A. If they are going to increase it, it would probably
be in there, yes, sir.

Q. And, Doctor, the amount of money that Ke tering can

pay Doctor Suskind has a direct relationship to the amount of

 

money or the University of'Cincinnati, the amount of money
that the University of Cintinnati gets from all of its
various sources, isn't that correct, sir?

A. I don't know.

Q. You don't know that, sir?
1




 

9'7

 

 

No, sir. 1

1
1

9. Well, Doctor, yoh do know that the expenses of
Doctor Suskind are paid by Monsanto from this money. You
know all of his expense account sheets that he puts in are

paid out of this money that Monsanto pays. You know that,



 

don't you, sir?

i
I .
A. On the studies ht has done for us, yes, sir.

Q. And would you not agree that Doctor Suskind doesbenefit in some f1nanc1al way from these contracts 

i

Monsanto? 1
A. No, sir. None.

Q. You don't agree that he benefits in any financial

1
1
A. No, sir.

Q.E All right. Now, Doctor, in this health study, in

this AMA report of honsantp, 925, there is no statement there aoout the ract that dioxin has now seen found in the

fat tissues of the general population at large in the United

States? i

A. I don't recall.
Q. Well, I have read it hurriedly while we had a

recess and I saw no statement to that effect in this



document. There is a stathment about finding in the Vietnam
1

veterans but there is no statement about it being found'in

 

98

 

other people and accepting that as true for the moment? do
you knou whether or not Monsanto has ever told the members of
this committee that its own studies have revealed the fat
tissue in these people from St. Louis?

A. It has been presented at meetings.

 

Q. What meetings has it been presented?

A. There are a number of dioxin meetings that occur
and that data has been presented at one of these meetings.

-Q. Did you tell Suskind that?

A. I don't know. 

Q. Now, Doctor, yoq will note there is no statement in
this report about dioxin being in Lysol. You know that,
don't you, sir? i i

A. Yes, sir. i

Q. Or that it is ordinarily found in You know

that too, don't you, sir?? I
A. is found there.
Q. Well, there is no statement here that 2,3,7,8 TCDD

is ordinarily found in 2,4-9. You recognize that, don't you,

 

sir? 1

A. Yes, sir.

Q. Now, Doctor, this study does not or this review

.study of the AMA doesn't t%ke into account the fact that many

I
ailments that we may have can be caused by 2,3,7,8 TCDD that

 

99

 

 

are eXposed to without knowing it and can be caused!
because people will react differently to 2,3,7,8 TCDD, isn't
that correct, sir?
A. I am not sure what the question is.
Q. Doctor, the question is, is that we know that as a
predicate, we know that 2,3,7,8 will affect some peOple and

they will get and problems and other people won't.

 

We know that, don't we, sir?

A. Depending on thegdose.

Q. And depending onjthe individual genetic variance

1 .

between person and person?

 

A. But there is a mhnute level that you wouldn't see
an effect.

Q. Doctor, I am not even talking about that. I am
just simply trying to re-estahlish what we have established'a
dozen times that different?people react in different ways to
the same dose. What will make one person sick won't make

another person sick?

A. Yes, sir.

 

Q. And, Doctor, if the 2,3,7,8 TCDD appears to be the case, this study in which all, or

i
this review study, all they actually do is to compare in a
lot of individual studies whether or not these mean are

getting things that otherslaren't getting?
. a 1 

I


 

100

 

 

Yes, sir. . 
Q. And, Doctor, if we are all now being exposed to
dioxin, isn't it possible that we are all since late '405

when they started using or everywhere up into the

'70s, isn't it possible that these adverse health effects

that many of us are having now can be associated in some way

 

with dioxin exposure and that the AMA, since it doesn't even

mention dioxin being in the fat tissue of all of us, that it
. 

has completely ignored oriit isn't even aware of that fact?

A. They are the? do mention it on the Agent Orange
biopsy study.

Q. They only mention it on the veterans. 

A. Yes, sir. . i

Q. And they don't mention it that everybody else has

been found now not just the veterans. Isn't it possible,

i

sir, that since they don't know what we know in this
courtroom now, that they dbn't know it, that they have
ignored the possibility that so much of the ill effects that
they have described in study after study after study are in
fact not caused by chanceIas you would suggest but in fact
are caused by exposure to 2,3,7,3 

A. No, sir. 

Q. You don't think that is possible?

A. Sir.

 

101

 

Doctor, just one example, for instance, and you
correct me if an example like this has not been contained in
study after study after that the AMA reports here on a
similar statement, quote we are on page 36 if you turn to
that exhibit. Are you there? I

A. Yes, sir.

Q. The fourth paragraph. -Quote, a causal relationship

between soft tissue sarcoma and dioxin exposure has not yet

?be confirmed or excluded, end of qhote?

 

A. Yes, sir. 
i

Q. And, Doctor, statements like that appear in this
document not just for softitissue sarcoma, do they not,.sir?

A. Yes, sir. 

Q. There is a wide yariety of human health problems
that based upon the laboratory with animal studies indicate
that those, if you can extrapolate from the animal to the
human, would indicate that those things can indeed be Caused

by dioxin but to date as far as humans are concerned, those

things that are known to occur in animals to date cannot be

 

either confirmed or excluded, isn't that correct, sir?

A. When they say that, they mean absolutely excluded.

1
Q. And they mean absolutely confirmed, don't they,

A. No, sir.

 

102

 

Well, Doctor, why would you say that you 
I
the word absolutely betweeh the word excluded but you

wouldn't put the word absolutely between the word confirmed?

'They are saying has not yet be confirmed or excluded.

A. That is true.
Q. If you are going to use the word absolutely, you
have to use it before the word confirmed as well, don't you,

sir? Don't you, sir?

 

A. It depends on tqe goodness of the data you have
got. .
Q. Excuse me, Doctdr. If somebody is writing this
sentence --
MR. HEINEMAN: object. He interrupted him again.
MR. CARR: He isfnot reSponding to my question.
THE COURT: The objection is overruled.
Q. When this sentence says a causal relationship

. . . . .
between soft tissue sarcoma and diox1n has not yet be

confirmed or excluded, they are treating both in the same

'way, aren't they, sir? You can't say it is caused by it, you

can't say it is not caused by it. Isn't that exactly what
they are saying?

A. Yes, sir. .
I
Q. And they have made that same statement with regard

to a number of other human ailments, haven't they, sir?


 

103

 

Yes, sir. A 
MR. CARR: That is all the questions I have, Your.
Honor. 
THE COURT: Do you have any further questions?

MR. HEINEMAN: No questions, Judge.

 

THE Okay. Gentlemen, could you approach; 

the bench for a minute, p?ease.

 

(Bench conference had out of the hearing of the

 

jury.)

I

THE COURT: We have about 20 minutes left. Can you ii7?
start on him on the next one now?
MR. CARR: Sure. uShe is waiting.

(The following proceedings were had in the hearing

and presence of the jury).
THE COURT: Doctor Roush, you may step down. Thank

you. 

1
MR. CARR: At this time, the plaintiff would like to
call Miss biane Nicks I

called as a witneSs, beingfduly sworn, testified as follows:

DIRECT EXAMINATION

BY

MRF REX CARR.

i
Q. Would you state ?our name please, ma'am?

 

104

 

name is Diane Nicks. .

And Miss Nicks, you are going to have to talk loud

enough that this last young lady on the jury here can hear

you.

Illinois.

Q.

A.

All right. 

.How old a lady are yOu?

32.

Where do you live?

 

I live at 109 Sonth Gate Drive, BellevilleIr
i

And by whom are you employed?


. . ..
I am employed by;Carr, Korein, Kunin, Schlicnter

and Brennan.

Q.

A.

Q.

Missouri Avenue?

A.

O.

my law firm?

A.

That is my law firm?
Yes, it is.

At our office is in East St. Louis, Illinois, on

Yes, it is.

And Miss Nicks, how long have you been employed by

 

Since December of last year.
And what is youriprofession?
I am a registered nurse.

And what school did you attend to become qualified
I

 

105

 

become a registered nurse? 1

A. I attended St. Louis Municipal School of Nursing,
St. Louis, Missouri.

Q. Graduating when, ma'am?

A. 1978.

Q. And could you give us your work history briefly, if
you could, since graduation from nursing school?

A. Okay. Following graduation, I worked for

I

approximately a year in St. Louis. Then I came back to the

 

east side. I worked primarily in Community Hospital in.East
St. Louis.

Q. Community Hospital?

A. Yes.

Q. What used to be known as Christian Welfare
Hospital?

A. That is correct.:

Q. And, in the course of your training as a nurse and
in the course of your actual work_as a nurse, are you called
upon to read various medical records and charts?

A. Yes, I am. I

Q. And were you given, in fact, courses on reading the
medical language and the shorthand and the symbols and things

of that sort that is used Jn medical records?

A. Yes, we were. .

 

106

 

And what have you been doing, what has been the



nature of the work that you have been doing for my firm since
you have been employed by us, not counting this subject that
I am going to ask you about here now?

A. Okay. The biggest majority of my job involves
reading and interpreting medical records.

Q. And, since working with us, you are not-in the care

of patient?

 

A. That is right. iThat is correct.
Q. You no longer care for patients and you haven't

been doing that since youlleft Community Hospital?

A. That is correct.

Q. All right. Now, Miss Nicks, did I ask you inilate
May to do a particular job for me?

A. Yes, you did.

Q. And do you have group Exhibit 1504. Now, M145
Nicks, I will show you whit has been marked Plaintiffs' group
Exhibit 1504 and ask you if I requested you to prepare a
chart based upon information in those records?

A. Yes, you did. 

Q. And could you get me 1507, please. And Plaintiffs"
Exhibit 1507 is a chart eAtitled Krummrich Plant Health

Study? 
A. Yes. 5
i

 

107f

 

IfAnd are the chedkmarks on that chart based uphn the 

records that you have in front of you, that is group Exhibit
1504?
A. This was made out of these records.
Q. 1507 was made from 1504? 

A. Right. 4:

Q. Now, have you since revised Exhibit 1507, that isif?'

the chart based upon two or three further re?analyses of

these charts?

 

A. Yes.

Q. And has Mr. Cornfeld taken a deposition of you on I
July 22 with regard to the chart and your analyses of the
these records?

A. Yes, he did. i

Q. Now, the chart ftself, that is the blank chart
before you put any checks'on it, who prepared or created this
chart itself?

A. It was a joint effort on my part and Mr. Carr's

part.

 

Q. Now, directing your attention to the category of
reported. It is'listed there as headaches, sleep
difficulty, fatigue, poormappetite, neuro-behavioral
problems. What is the source of those 

A. I am-sorry, I ddn't understand.

 

I08

 

Where did the come from? What is that
based upon?

A. Out of these questionnaire forms.

Q. And what page did you refer to?

A. It was on page 11. i

Q. And how many questions are asked there with regard 

to 

A. Seven questions. 



 

Q. Now, and there are how many listed at the: 

top of 1507? 

A. There is five.
Q. Now, in order to get five from seven

questions, did we unite two sets of questions?
I
A. Yes, we did. Questions --

Q. How many questions were there dealing with sleep?

A. There were two questions for sleep.

Q. And where there was sleep problems found, how many
checks did they get for sleep difficulty?

A. They only got one check.

Q. And how many questions were there dealing with

neuro-behavioral problems?
I

A. There were two questions.
I
Q. And how many checks would you give on the 

chart for a neuro-behavioral problem?
I

I

 

109

 

there were one or two checks for sleep

A. Just one.

difficulty, they would get one check and not two?

A. That is correct.

4
_w 

Q. If there were one or two checks for neural i

behavioral problems, they would get one check and not.two??
A. That is correct.
Q. And there is several boxes for headaches. How 
X's, how many checks wouldithey get for report of 
A. Just one. I I'ig?li'?f:
Q. And the word poo} appetite that appears here, is
there actually a listed there as poor appetite?
A. No, there is not. 
Q. What is the question actually asked in the 
A. Okay. The question says do you have a good.
appetite, and that is not a of anything._ I thought ?firf?
the question was worded pobrly. So, I interpreted it to saygi-
poor appetite. 1
Q. All right. Now, with regard to chloracne, what
were your -- strike that. 'Did you in Exhibit 1507, we might
as well make it one exhibit. I hand you now what has been 
marked Plaintiffs' Exhibit:1507A and ask you if that is'yourLR'

.
chart based upon revisionsL based upon your last examination
I

i
of the health records, that is 1504?


 

 

1'10

4'11. 



41-Yes, it is.

Q. And are there some changes or differences between
1507 and 

A. Yes, there are.

Q. I will get into the Specific changes in a mo?ent
but how many changes are there in fact? How many persons

have a change?
A. There are six people.

Q. All right. Now, referring now to 1507A and the

 

column called chloracne, what did you do with regard to or on
what basis was a check PUE in the column called chloracne?

In the questiondaire form under the physical exam,
page 15, the diagnosis, iffit said chloracne or if it was a
current case of chloracne, they got a checkmark.

Q. Did you put a checkmark in here for any past Fr old
cases of chloracne if it wasn't also described as curreht and
presently existing chloracne?

A. No, I did not.

Q. Now, did you make any attempt to differentiate

 

between or determine whether or not something was chloracne
1

if it wasn't called chloracne?

A. No, I did not.

Q. Is the only time you put a checkmark in the I

1 1 
chloracne column 13 when cased upon your reading of the!

 



 

records the doctor said it was chloracne and-currently
existing?
A. That is correct.

Q. Now, with regard to the abnormal lab reports, there

 

are three categories in that column.or in that, under that

4'


1

heading?

 

A. That is correct.
Q. And that is lipids and others. Now,

what were included?
1
A. and 
Q. And what lipids?were included?
A. The lipids wereithe cholesterol, the triglyceride,
serum lipids, LDL, VLDL or HDL. I
Q. And the others would be everything else that is

reported in the lab reports that is attached to each o? thoSe

person's records?

 

A. That is correct.

Q. . Except one category. What category did you not
report on in'the other categories?

A. I didn't include the urinalysis.

Q. Now, why did you not include the urinalysis either
normal or abnormal?

A. Because there was no reference range.

Q. 'All right. Howl did I supply you a reference range
1 .


I

 

112

 

for the and for creatinine?
A. Yes. you did.
Q. And does Plaintiffs' Exhibit 15093, is that a

merged c0py of the reference ranges that you were given for

the the and the creatinine?

A. Yes, it is. .

 

Q. And did you use those ranges as I gave to you in
determining whether or not a check should be but in for
abnormality: abnormality or

creatinine abnormality? 
I
. 
A. That is correct.

Q. And if the figures on the medical records that you

have, if it showed a finding for that was


below the number 30, would you put a checkmark for the


i
A. Yes: I didAnd would the same thing be true it it were above


lb-

'0

A. That is correct.

IO

. And is that also true then for below

15 you would give them a check and above 50 they would get a

check? I

 

A. That is correct.

Q. And for creatinine if it was below 800 they would

 

ll3

 

check and if it was above 1900 they would get a chech?_c I

A. Yes.



Q. How, did you make any attempt to diagnose any

conditio well, first of all, as a registered nurse,_arewj-

you competent or qualified to diagnose medical Conditionsz-f?

A. No, I am not.s

1"

medical condition?

A. No, I did notthe chart 1500A an accurate summary of the;_
records that are containedgin Exhibit 1504 and as to ehat 
they reveal with regard toithese various categories of
li?ids and other abnormal?f:

lab reports?

A. YES, it 130'



1

MR. CARR: Your HOnor, I will offer 1507A and askrw
that it be substituted for 1507 because there 5f8_these half 

a dozen changes.

 

MR. CORNFELD: Your Honor, I will make the same .

'objection that Mr. Heineman made to 1507. In addition, I.

would like the opportunity to question Miss Nicks about the'
exhibit.

THE COURT: I didn't hear the last part.

 

MR. CORNFELD: I would like the opportunity t?



..-.

I. 
4; . .
Jl'p "Lg2.5-.
.. 

 

0., And did you make any attempt to diagnose anybodjig ii??



 

 

,_114

15

17

18

.23

24

 

 

question Miss Nicks about the exhibit before your ruling as
to whether it should come into evidence.

MR. CARR: Your Honor, I would like to pass it to
the jury as I continue my examination. They have already
seen 1507 with the exception of a relatively few changes and
I want to point out those changes before I finish with Miss

Nicks.

 

.THE COURT: Okay. At this point I will admit it
over objection. You may pass it to the jury.
(Plaintiffs' Exhibit 1507A is passed to the jury).

THE COURT: Gentlemen, could I see you at the bench

for a minute please.
(Bench conference had out of the hearing of the
jury.) 

THE COURT: Before you get into any changes,iwhy

1
I

don't we break now. I don't know if you were informed'but
one of the jurors had a problem and we are quitting at one
and we will start at nine tomorrow.

MR. I understand that.

THE COURT: There aren't any motions as to this

last witness we had, Doctor Roush?

MR. CORNFELD: I can't answer that. I don't knowhr. Heineman lS Sitting back in the courtroom.

THE COURT: Why.don't you ask him. We will break

 

115

 

this point in time.
(The following proceedings were had in the hearing
and oresence of the jury).

THE COURT: Ladies and gentlemen. we are gointho

 

- 1
recess for the day at this point in time. As I told you?

earlier, we would 90 until one and then break.? I wd?iaja?wi'

remind you besides the regular admonishments. as I do_for:anyah' 

overnight break that you are not to read, listen to or watch

anything about this case in particular or subject matterfinn'Vs.

again at nine o'clock. Court is adjourned. Have a goodt
afternoon. I

(Bench Conference had out o?_the hearing of the: ;1
jury.)

THE COURT: I forgot TO ask you while Roush is.

I
still here. Do you have anything related to aim? I have?

made that practice of'asking any offers of proof or anything 

else that haven't been offered.

MR. HEINEMAN: Not other than the ones we have

 

already covered.
I
THE sous": Fine.
COURT ADJOURNED FOR THE DAY.I-r

general in any of the media. Tomorrow morning we will start

 

116

 

:ILLINOIS

TWENTIETH JUDICIAL CIRCUI
COUNTY OF ST. CLAIR

I, Kimberly Ganz, one
hereby certify that the 
correct transcript of'the

above-entitled cause.

Dated this 




35,




of the Official Court Reporters, do

oregoing transcript is a true;and

proceedings had in the

 

EEAugust, 1985.

. 7 I
wax/414% .
GAE-12


1

 

 

117

 



22
23

24

 

.STATE OF ILLINOIS

 

TWENTIETH JUDICIAL CIRCUIT

COUNTY OF ST. CLAIR

I, Richard P. Goldenhe

SS



rsh, one of the Judges in and fOr 

the Twentieth Judicial Circuit, do hereby certify that tneg?'hu

foregoing transcript is a
yroceedings had in the abo

Dated of

true and correct transcript of thef-
ve-entitled cause.

August, 1985.

 

 



 

HON. RICHARD P. 

 

 

.118

 

 

IEDEK

WITNESSES CALLED ON BEHALF OF THE PLAINTIFF:

l. GEORGE ROUSH (Section 2?1102)
Reclarification Examination by
Mr. Heineman . . . . . . . . . . .
Recross Examination by Mr. Carr . .

2. DIANE HICKS

Direct Examination by Mr. Carr.

 

 



 

 

 

 

 

115

?110

 





NTI

1507A



120