THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS ST. CLAIR COUNTY FRANCES E. KEHNER, et. al. Plaintiffs, VS. a NO: KONSANTO _Defendant._ REPORT OF PROCEEDINGS Before the RICHARD P. GOLDENHERSH JURY TRIAL May 30, 1985 Hr. Rex Carr, Mr. Jerome Seigfreid On Behalf of the Plaintiffs; Mr. John Musgrave; Hr. JOSeph Nassif, Hr. Kenneth Heineman On Behalf of the Defendant. Debra b. Musielak, CSR, CM Official Court Reporter 5 for?aM?ak?xf?m?n?a iwpiWITNESSES CALLED ON BEHALF OF THE PLAINTIFF: 1. JAMES WILSON (2-1102) 5 Cross ExaminationClarification ExaminationRecross ExaminationClarification ?xaminationRecross Examination154 Clarification QxaminationRecross ExaminationDR. GEORGE ROUSH (2?1102) 10 Cross Examinationll 12 13 14 2?3 24 Pagg I: i EXHIBITS SUBMITTED ON BEHALF OF THE ELAINTIFF: Plaintiff's Exhibit No.: 1432 (report1433 (chartTHE DEFENDANT: Defendant's Exhibit No.: 906 (notes) 907 (letter: Raga mum ii that on the?30th day of May; 198?, the same being one of the regular judicial days bf said court, the above-styled cause came on regularly for hearing before the P. GOLDENHERSH, one of the Judges at the St. Clair,Gounty Building, 10 Public Square, in the City of Belleville, County of St. Clair, State Of Illinois. Whereupon the following proceedings were had: COURT THE COURT: -Good morning. Mr. Carr. JAMES (being called as a witness on behalf of the Plaintiff, under Section 2?1102, having been previously sworn, continued to testify_asifollows) Rscaoss EXAMINATION i BY MR. REX CARR Q. Dr. Wilson, yesterday we were discussing the article Freeman and Shroy had sent to Science Magazine for gublication dealing with a suggestion by Freemaanhr that most of the TCDD in the soil at Times Beadh would have disappeared in a short period of.time, relatively speaking, and that McQonnell's article was in error when'it discussed the bio-availability of FCDD in contaminated soil, do you . recall that, Sir? ?don't think that was the Well, not exact 1. charaCterization of the a. would disappear in a rela recall some discussion, 1y. I don?t recall the 1? . f. .. it? r. hroy and Freeman findings that? tively short period of time.. I import of the article but I do ES. Q. Well, you wouldn't consider that 90 percent of it disappearingsin a few months in, oh, less than ten years, 90 had disappeared, you wouldn!t percent of the total TCDD consider that a relatively short period of time? . MR. MUSGRAVE: Is the question in less than ten years or relatively few months? object to it as vague,_ indefinite. MR. CARR: I agree, it is conflicting. In less 1' than ten years, 90 percent having disappeared? A.. I don't consider that relatively fast, no. i i j?hen YOU that it?S'accepted thatla?" . half-life of TCDD in soil is ten years? it's A. It's not so accepted. There is quite clear that the disappearance in the moyement in the soil cannot be described hy a half?lifelprocess- Q. It's clear froh your Lillian.and Queeny plant experienCes TCDD in the soil 16 years ago is still there? A: No, sir, it's hot the case. It's not the case?" .y_r 3,3 era's There is no the TCDD that was found at the Queeny plant is not assocLated'with oil, it's in oil and gunk on the underside-of an elevator, has nothing to do with Soil. Q. But the TCDD at the Krummrich plant, it's in soil? A. That's correct. Q. And that was put in soil when, sir? A. To the best of my knowledge before 1980. Q. Which is fourteen years ago, better than fourteen years ago and it's there, isn't it, sir? A. Some remains, yes. 1 Q. Well, the point that'I'm getting at in any event, you stated yesterday that Science Magazine had refused to I publish this article written by Freeman and Shroy, you recall that, sir? - ?y A. I recall saying that they had not agreed to Q. But you didn't know why they had refused to That was correct. I ipublish i publish Q. Well, this morning your attorneys delivered to me a 1 letter, a number of documents that at 9:15 this morning, one of which was a comment by a person from science on the article, and have you read that, Dr. Wilson? A.r I have not rea? all of those materials, no. . . vim-35.1 ua- . I . 7:5itwinWhen did you become aware of the fact that Scienc ?3 L124 - Magazine had given criticisms to Freeman and Shroy?og? comment on McConnell? A. Well, I recall that they returned comments at the time that I think they said they didn't have room to publish the technical comment as they described it; if that's what you are referring to. I suppose shortly after the date that they were received, but I can't remember when that was, I suppose it was last fall sometime. Q. Doctor, I asked you yesterday whether ?mpg. 51'; knew why they why they had refused to publish it and1you_ said just simply because they didn?t have room? A. No, sir, I said yesterday, I didn't remember, I believe. 1 Q. But today you do remember? i A. Well, I believe that's the substance of at least one of those responses in there, yes. 0. I don?t have a copy of this, so I'll just have to have this one marked because it was delivered to me Dr. Wilson, handing yau Plaintiff's Exhibit 1432 and turn to a page that is numbered CZQ298, would you look at that please, -sir? That page there is a comment by some person from Science who was given th? responsibility of critiquing the 1 Freeman-Shroy?comment on McConnell, is it not? air)". .. gia- . s3 . wag?believe-that's the case, that's what it looks 2 like. 3 Q. And that person gives five deficiencies 4 I object to counsel I object to 5 counsel testifying, asking questions as to the contents of 6 the document uhtil it's offered into evidence, Your Honor, it 7 hasn't been offered into evidence, I should say. 8 A MR. CARR: Well, I?ll offer it into evidence, no 9 problem. 10 THE Any objection? . 11 MR. MUSGRAVE: Object to it as hearsay.3 12 THE COURT: _Objection is overruled.. Admitted into 13 evidence. i 1% Q. Dr. Wilson, the author-from Sgiangg, the writer 15 from Science says that the authors, and by that he means 15 Freeman and Shroy, in respondin? to the report by McConnell 17 et. al. have failed to provide pursuasive evidence Of 18 oversight in the original report based on several criteria, 19 Idoes he not say that, sir? 20 A. That's what it.says, that's correct. 21 - Q. And then he lists five places where they, on those 22 criteria where they failed to persuade, to give persuasive evidence, do they not, sir? -A. At least five comments, yes. I .1 . Q. Thank you. Doctor, with regard to the Eglin data 2? and-the article that was written by Freeman and Shroy, and 3 that was delivered to the American Institute of Chemical 3 ?4 Engineers, and Professor Jury's comments thereon, you recall 5" we had finished the day particular article? 6 A. I believe that's what we were doing, yes. 7. Q. Doctor, the -- could you give the exhibits that I 8 pulled out. 9 THE CLERIQ They are over there- 10 Q- He has them. Fine. Referring to Exhibit 1415, if 11? you would,?that was the paper that was originally sent to the 12 American Institute of Chemical Engineers for publication and 13 the paper that was presented to the society, to the national 14 meeting held in Philadelphia? 1 15 A. That's my understanding, yes. I i 16 Q. How, the equasions in that?document are basically 17 on_two pages that support the theory or the model, are there 18 not, sir, that_is on Pages 5 and 6? 19' A. That's correct. :20 Q. And the article thereafter refers to actual 21 measurements at Eglin Air Force Base that we have discussed 22 here earlier, and the model, that is the model based upon those equasions, or thatfs represented by those equasions an ?fthose conc1u31ons, isn't.that correct, sir?W I n' - .A: .. titre} rT' I-.. . vhf. . .r rm en": "a win.-.. af?x. - w- {31Basically that's correct, yes. WW- Q. And those conclusions that are reached are based upon the equasions that are contained on page, Pages Siand 6, are they not, sir? A. Well, no, not all of them, no, in fact Q. I didn't ask you about all of them. A. Well, then the answer is Q. Referring to the model and comparing the model to the actual soil measurements is based upon the equasions on Pages 5 and 6, isn't that correct, sir? . Strictly speaking, no, it's not correct. Well, refer to Page 9, if you would, sir, so we can get a Specific reference to it, exactly when they were doing - . . i . . the very first sentence on that says, usrng the transport model previously presented in this paper, a simulation of the TCDD movement do you see that, sir? A. Yes. Q. When-they-are talking about the transport model previously presented, they are referring to the model based upon the equasions on Pages 5 and 6, are they not, sir? They are in pelt. Q. Well, that's the only model that was previously presented in the paper, ?sn't that correct, sir, is there 1 I _some other model that.I'ye missed that's not on Pages buried somewherelin that document that I haven't seen itit.not, sir, the transport model previously presented in this paper is that which was presented on Pages 5 and 5? A. That's correct. Q. And, they say using that medel, a simulation of the TCDD movement was done, do they not,:sir? A. They do. Q. And they say .ing that model, the third paragraph c: on that page, the good agreement between the model and the data suggests that all the TCDD applied by Dr. Ydung in.1972 is still contained in the biodegradation plots, do they not? A. They do. . 1 Q. And they say, the last sentence on the paragraph two referring the model, to the actual measurements made, the I model fits the data welli do they not say that, sir. 'Page 9 3 I I I second paragraph, last sentence? J. L. a. Yes, they say nat. . how, again, the model they are talking about goes, it?) . . are the equaSions on 5 and o, aren't they, Sir? A. i Q. Didn't you just say that, Dr. Wilson, ten seconds In fact Doctor, didn't you just say that ten seconds ago, that model that they are referring to is the model that's represented by the equasions on Pages 5 and 6? A. That's what it says, yes. Q. Yes. And, this model they say fits the data well, do they not, sir? A. That's what it says. Q. Now, Doctor, in the pre-publication draft, they changed the equasions on Page 5, did they not, sir? A. Yes, they did. Q. But they didn't change one single word of the conclusions, did they, sir? A. That's correct. Q. Doctor, and Dr. Jury had said that the equasions that they were using in the original document were completely ridiculous, that it's off by a factor of a thousand? MR. EUSGRAVE: Object to_counsel's characterization. HR. CARR: I do agree. I didn't say ridiculous. ER. MUSGRAVE: May it be stricken, counsel's misleading comment? THE COURT: It will be stricken. Q. He says that the volatilization predictions made by your model are not physically possible, given the parameter 10 - . Isl. a" I . . I biasesHalvalues of dioxin, does he not, sir? 2 A. On which page does he say that? i 3 9. Oh, the third page of the letter dated September 4 25th, 1984, on Plaintiff's Exhibit 1418? 5 A. Yes, it does say that, you are correct. 6 Q. Now, also goes on the bottom of the page he %ays, 7 "On the other hand your model predicted 31.56 percent bf the Ainitial application of TCDD would be volatilized during the I 9 first 30 days." Then makes another comment about estimated, 10 applications, and then he says, "This appears to be a 11 physical impossibility." Doesn't he, sir? 12 A. It does say that, yes. 13 Q. Now, Doctor 14 A. Approximately. 15 Q. The equasions mere changed in the subsequent 16 document but not the condlusions, the conclusions that-were - 1? reached in the original document were based upon the 18 equasions that were changed. The equasions were changed 19 because that was a physical impossibility for that to occur 20 as pointed out by Professor Jury, but the conclusions didn't 21 change. How can that be? Doctor, how can you have a model 22 that's based upon an equasion and you say in commenting on 23 that model the data fit that model well, you changed the 'c%%:model, it goes from a Model to a Model A, or it goes from ll' -s. 1_ one kind of a bridge to ahother kind of bridge, goes from one 2 vehicle to another, the equasions change, the model changes, 3 but now, the data which he said in 1415, the measurements fit 4 the model set out in 1415, he changed the model. He says now 5 6 MR. I object to this continuing speech.f 7 Q. The data same data 8 I MR. MUSGRAVE: He asked the man a question, he 9 continues on giving his, counsel's own version. He's asked 10 the man a question that he's never let him answer. 1!ObjECt ll to-this as no more than a speech. 12 MR. CARR: I haven't finished the question, yet, 13 Your Henor. 14 THE COURT: Finish the question. Objection is 15 overruled. 16 Q. (by Mr. Carr) The data remains the same. The 17 measurements of the soiliremains the same, exactly the same, I 18 but the model changes. But now he says the same thing, the I 1 19 model, that is, the new model fits the data well. That seems ?20 to me, sir, and I'll askgyou to agree that that is an 21 impossibility, is it notl sir? 22 MR. I object. It's two questions. He 23 ought to be able to answer both questions. . MR. CARR: He can certainly answer all the i . 12. we 4.34.. -. . . Io r? 13real questions I asked him, counsel. THE COURT: Objection is overruled. A. Certainly not impossible, and the answer to the question is quite simple. What those equasions describe is not the model that is used to do the calculation because that is something that is describ?d in computer code, those I I - 1 equasions describe the theory on which the model is based. Dr. Freeman developed a computer technique for making I calculations that were derived on this theory, and by the-way? was incorrectly described in this original paper in?a couple of key points as Dr. Jury pointed out. in changing the description of the theory to represent in ?ollowing Dr. Jury and his colleagues suggestions, it gives a better description of that theory as Dr. Jury said, but it doesnjt change the computer model on which the calculations are based, doesn't change it at all. In fact, Doctor, the last half of Dt. Jury's comments are based on an assumption about one of the constituents in Dr. Freeman's theory, namely that this of Kenoga that he's talking that was in Dr. Freeman's theory was there as an adjustable parameter, and the whole a half of Dr. Jury's comments are based on incorrect assumptions. They are not relevant. It is not relevant when he says that the modelabout was part of the theory, the I ?second half, the whole last page ano .-..- LU Ira. CO 22 23 24 . says "Your model predicted that 31 percent would be gone during the first 30 days,? does he not say that, sir? i: A. That?s correct. And the model he's talking about is the model on Pages 5 and 5, is he not? A. No, sir, he's not. Q. What other model again is there, Doctor, I'ue asked you this several times, only one model in this document, isn't there, sir? A. What Dr. Jury is talking about -- Q. Excuse me, is there not only one model in the document? - MUSGRAVE: I object, he's asked two questions. a No, sir. I I I I . MR. HUSGRAVE: :The w1tness.1s entitled to answer i both of them since he posed them. I don't think the witness is required to answer'thgm in any particular order unless i request the witness be germitted'to answer the question. a. ?Dr. Jury THE COURT: Objection is overruled. It was not a multigie suestion. .1 A. Dr. Jury assumed that the equasions mean a certain model by his comments in this letter, and his assumption is 1 incorrect, that's one model that is not described in the I H. If:- i .. 1 ?paper but described in his letter;: The model he's talking 2- about leads to those results mhich are incorrect, but that's 3 not the model that Dr. Freeman used to do his calculatibns. 4 Now, the theoretical description of Dr. Freeman's model in 5 this original draft, the Plaintiff's Exhibit 1415, is not as 6 good as the one that is given in the later document called 7 pre-publication draft. It was improved by the taking into 8 account of Dr. Jury's domments on the original, but the basic 9 model is the same. 10 Q. If I understand you correctly, Freeman?Shroy 11 described a particurar?model in this document on Pages both documents, although different models, correct, my 13 sir, different eguasions? 14 A. They described a theoretical justification for the 15 actual computer model in which, by which they did_their 15 calculations. 17 Q. They don't give then when they say that the 18 model uses the followingimaterial balance eguasions, they 19 1 don't really mean that then? 20' They do not giue the detailed model, that is 21 correct. i 22 Q. Why do they say in their document if they do not a 2 .23. mean to mislead, why do they say the model uses the following balance-equasions? :i a 1 if: {Zigwwgiga . . ragg?ih?; . ,3 1.5 ne?? .2. a - . -4122?; . F, ..qu em? W.r, .m,r is.? {?5.31 1 1 - A. Because it's clear to'anyone skilled in the art, 2 that this is a model based upon a computer simulation and 3 they realize that those who will be reading this paper will 4 be able to draw, will be able to conclude the kind of' i 5 computer model that is derived from it, and they will assume 6 that kind of computer model is used. I 7 3Q. Doctor, the impression that dreeman and Shroy give -is that they have an equasion that they call the modelruses' 9 those equasions, Jury says it's impossible for that toiwork, ?10 it's by a factor of a thousand, then they come up and put 11 another equasion on paper, but now you tell us that?s really?hm - 12 not what they put in the computer at all, they have got a 13 different theory, a different model that they put in the 14 computer? . 15 A. No,.sir, they have the same model in the codputer, 16 they have the same basic theory. .17 Q. Let's stop right there, they have got the same 18 model in the computer, but yet the model changed from one 19 document to another, did it not,-sir? 20 i. do, sir, it did not, the equasions used to describe 21 the theoretical basis fo? it. 22 Q. Doctor, how elSe do you describe a model except by an equasion? .A. ;Well, this model -- 15 . .- . . . 1.. 5.4.. 4" . 1'1 gaunt? if} my: an! . errMy}? Q. There is no other way, is there Dr. Wilson, to describe a model other than by equasions? A. Yes, sir, there is. MR. MUSGRAVE: .Object, he won't let him answer the first question, cut him off before he could answer it, I request the witness be permitted to answer the first question. THE COURT: Overruled. A. This model is described in terms of a complex computer code, not a series of equasions but a series of steps describing how the computer will go through calculations.. Q. And that model is not put in the paper, is it, sir? A. That model is not, that's correct. Q. And no one knows whether or not it's a good model or poor model, do they, sir? The only way they have to judge that is by the equasions put in this gager, isn?t that correct? A. No, sir, that's not correct. Q. Is it anywhere in this paper, computer code, that model in either of those documents? A. No, sir, they can judge it by the fit of the results with the actual data that are observed in the field. That's the only way to judge the quality of the model, is how 17 1 1 well it fits the observed data. 2 If you massage the data to fit the model then it 3 would appear your model is correct, wouldn't it, sir, if you 4 change the data in the field? 5 A. That would be correct. No, not neceSsarily.. In 6 this case if you massage the data it would make it appear the 7 model does not fit, because if you don't massage the data as 8 Awe have not, the model does fit. 9 Q. Well, I think we have demonstrated and I'll! 10 re?demonstrate it in a moment that you have massaged the 11 data, but nonetheless, the 12 to here today, Dr. Wilson, is that Freeman and Shroy say they l3 construct a model based upon certain equasions, and they 14 reach certain conclusions based upon that model so 15 constructed. They change the model, they change the 16 eguasions but they don't change the concluSions, and you say 17 that is perfectly proper and appropriate? 18-. a. They did not change the model, they changed the 19 description and, perfectly proper and 20 appropriate. 2i Q. And, Doctor, a? we pointed out yesterday, the new 22 model and the new equasikns.were never given to Dr. Shroy, Dr. Jury, Dr. Freeman an? I'm sorry, Dr. Palmer and Dr. :fEapmer and Dr. Spencer so far as you know by any document .. - . - I . -- . '11?ag! lm?tx?t-?zl??- lair-Glf?j?inhiv??i .5 - . ?tun 4 . re ?11 submit ted to them, isn 't that correct, sir? 2 - i . I MR. MUSGRAVE-J Object tozthe question, mis?states 3 the witneSs' testify. They did not change the model. 4 Counsel is again attempting toimislead the jury. Object to 5 the question. It's improper representation of the witness' 6: ,7 . THE COURT: Objection is overruled.r 8' .1 Ari I don't know whether there is any correspondence or 9 notknow because you've seen all that's deem 11 produced, Df. Wilson, you've seen all that's in enistence, . 12 have you not, sir? 1 13 A. 'No, sir, I haven't seen all that's in existence. 14 Q. What is there that's in existence you that you 15? haven't seen? 16 . IA. SeyEral boxes sitting over there in the corner of- 11_ material that's been produced, that I have not seen all of, 18 lots that I have not seen. '19 Dealing with the correspondence you are technically correct, there is a lot.of material you haven't seen. 'My 21 _question for your information was directed at cdrrespOndence 2% 'between Freeman, Shroy and Jury. :sgain, another technically . .correct?responsei right, sir. My questibn again to H?be more Qrecise,.Dr. Wilson, to meet your requirements, you 19. .. . have seen all the-written communications that have beeh had 2 between Jury, Freeman, and Shroy, have you not?" i 3 A. I don't know whether I have not or. I have only 4 seen what has been described here in the courtroom. 5 Q. And if counsel has sworn under oath that's all the_? 6 material that exists.then you have seen it all, havenft you, - . . ?wpus,:m= ?cease 7 sir, unless they are lying? 8 - A. If counsel has sworn there is no other 3 9 correspondence other than what has been adhitted, then I haVe 10 seen it all, that's correct. 11 Q. Then so far as you know from the?written documents 12 we have, Dr. Jury's comments about the model and with the 13 equasions, and about those draft publications, remained the 14 same as he stated in September 25th, 1984, isn't that. 15 correct, sir? 16 A. I I have no idea what his state of mind is. 17 Q. Hy question so far as you know, Dr. Wilson, based_ 18 upon the documents that ye have 19 A. I know nothingiabout it, sir, I have no idea. 20 Q. . My question is_based upon you do know something,.' 21 you have seen the letters, you have seen the document, you do 22 know something about it, and as far as you know, he has not? expressed a different opinion so far as you are aware, your ?hnowledge, isn't that cokrect, sirtiff . - sip-5. I .J. ?rv Q. A. seen him express no other Q. 6- .- HR. That is exactly Based upon the NOW I a: "f A 353? .l .: . - . (as; 55:? E13126 315?.? . :1 sq ..- u'p- . Based upon the documents, Mr. Carr? correct. documents I've seen, I know, I have opinion based on those documents. Doctor, referring to the data that you, that Shroy says fits the model, you suggested that there might be something wrong with some of those samples, when they break those core down, they take out the sample that's zero to one; I inch and put it in a separate container, box, or bag, or jar, or something? A. Q. i'b?iieve that' the case. And~they take one to two inches and put it in a separate jar or bag or container? A. Q. separate container? A. Q. I believe so. And take out the one eight to nine and put .. Yes. Take out it in a seven get it out of that device that they use to core the soil, I they separate, their owniseparate little compartments, don't Yes. And if they wanted to spike six to seven, for they would take part of that soil from six to to eight, so there is no, after they mfia: in 1 seven, put it in a different container and spike that 2 separate sample, wouldn't they: sir? I 3 A. Typically they would, yes. 4 Q. Is there any other way of doing it? You wouldn't 5 spike the whole section, would you, sir, you'd take out that 6 part that you want to spike, spike it, segregate it from the 7 remaining samples, wouldn't you, sir? 8 A. It would depend on how much material were- i 9 available. They might spike it all. 1 10 Q. Well, if they do, there is not any left then of 11 seven to eight, they are gointho treat all of seven to eight 12 . as the spiked sample, they won't report one seven to eight 13 without spike and another seven to eight with spike, will 14 they, sir? 15 A. That would be correct, if they did spike the whole . 16 sample.1 17 Q. So when you put a spike in the sample of soil that -18 is taken from seven to eight inches, it's not going to get 19 into the sample.taken f?om eight to nine inches, is it, sir? 20 h. It should not,I that's correctyou know, you've never been informed 22 Ithat'they mixed up those samples, have you, sir? Mo, sir. So far as youiknow they followed standard I 15W?hwn?New If.? -.- il-h?J (?125; a} .35 . 11' z. ltid? . -. . l'G'l' - ., k" xiv-1 . '35laboratory procedure and kept the spiked samples separate from the unspiked samples. did they not, sir? A. As far as I know they did, yes. Q. There is no way, then, for the contamination, for the spiked samples to get into the unspiked sample, is there, sir? If I understand that question correctly, you are asking me was there a way for two separate?samples to become mixed Q. No, I asked you there is no way if you spike one part of the dirt from seven to eight inches, referring to xhibit 1413 and 1414, they designate, do they not, by various letters which samples they have spiked and which sample they haven't spiked? A. They are supposed to do this, yes. Q. They do do it, don't-they, sir? You see that, don't you? A. There are cases like that, yes. to four inches, they have one sample three to four inches with no letter next to it, and it's got 320 parts -per trillon rather of TCDD, you see that, don't you, sir? A. Yes. - I Q. And, that would be this*sample right here on Q. And for instance on Exhibit 1413 sample four,.three' \y .93 }i*3 4 . ?4 .e9. a i i -exhibit 1416, wouldn't it, sir? 2 A. Yes, 3 I Q. Now, right below that there is another sample three 4 to four inches, that's got an that stands for 5 the spiked, doesn't it, sir? 6 A. Yes, that's what it says, that's the 1 Q. That has a fall of 1,000, E'm sorry, 100, and 8 A. You were right, one thousand. 9 Q. 1,170 yarts per trillon of TCDD, correct? 10 A. Parts per billion in this case, yes. 11 Q. And, of course, that's not in this graph,nis it, 12 sir, that's a sgiked sam?le?' 13 s. That's correct. 14 Q. And they don't,i and Shroy and Freeman in their 15 papers, they dOn't describe those spiked samples, do they, . 16 they don't treat those as actual values, do they, sir?'? i? A. He, the; isn?t; excegt in one case. 18 Q. ?ow, the sample, if you look at Plaintiff's Exhibit 19 1314, the samele eight to nine indhes, if you would, sir, for 20 4N, you see that, sirvalueiof 100 1,200 parts.per trillon of TCDD, does it not, sir? 1 5? ?Yes, it does, that's represented on that board, 24 isn't it. here? 2 A. ies,-1 believe it is. 3 Q. Now, there is no spike adjacent to that, is there, 4 sir? 5 A. Not marked as.a spike, that's correct. 6 Q. And there is no spike on any sample above or below a 7 it, is it, sir? 8 A. Yes, as a matter of fact, one section belowfthat is 9 marked as a spike. I'm sorry, on your table or on this 10 table? 11 Q. On Exhibit 1413, that's zero to one inches, sir? 12 - A. Looks like a dhplicate, and below that is nine to' 13 ten inches marked for low spike and then below that there 14 are two which are not. 15 Q. Nine to ten inches, which is a low spike is only 16 820 in it not? 17 A. TLat's what it says, was. 18 Q. Now, Doctor, there is no indication of any sort 19 that this eight to nine ?nches was mixed up or became 20 contaminated by some sagple next to it, is there,.sir? 21 A. No case of that, no, that's correct. 22 Q. And there is %0 physical way, is there, sir, to confuse that? 3A.. To confuse one sampleffrom another? .Yes, it' 3:3? I {Ia-.-iI ,1 .. .. s- ?at-"v was?? 1 .. .1 1..- r: 1b, A- i .. t~ quite possible. .1 Q. And, Doctor, how could that be? A. Well, this chant lists what, three, six, nine, twelve, fifteen, eighteen or nineteen different samples, they are all in identical bottles, or jars, or bags, or boxes, whatever they are in, they all look pretty much the same -- Q. Extuse me, stop one moment. MR. MUSGRAVE: May he finish his answer, Your Q. I would like to interrupt him at that point. MR. MUSGRAVE: Just a second, Mr. Carr, I wOuld like to request that the witness be able to finish the answer, the question that Mr. Carr has asked, there was a question asked, how can that be and then the Q. He can finish his answer. I want to clarify one point befofe he goes on. $33 tones: it. Carr, you so clarify. Q. Thank you. At that point of putting in separate bottles, they label those bottles, don't they, sir? A.- i believe theyldo, yes. Q. Proceed on then. A. Even though they are labeled it is entirely possible with all of those sitting in front of one to make a ?mistake,}to mistakenly treat one as it should not have been I 26 J'a?tt??at . e. .. I @?gsv . - 1. treated or to mix them up, and unfortunately it happens from 2 time to time. 3 Q. Doctor, you have no indication from anybody at 4 Dayton that a mix?up like that occurred, do you? 5 A. There is no eVidence of that, no. 6 Q. When they take the sample eight to nine, for 7 instance, if you'll turn to Exhibit 1413 again, they haye . I 8 sample eight to nine don't they, sir, on the second page 9 of that Exhibit 10 A. Second page of 1413? 11 Q. Second page of 1413. You are not looking at the 12 second page. You've got a different you've got a 13 different What's the notebook page number? I'm sorry, 14 you've got the full document, it would be 2637039? 15 A. This one, all right. There is an eight to nine? 16 A. Low spike. . 17 3. Sample there, ieq't the--, air? 18 A. That's correct, yes. 19 Q. It's got an behind it, hasn?t it, sir? 20 A. That's correct} 21 Q. And they in fa%t spiked it, did they not, sir? 22 A. That's what itlsays. _:23 Q. How much did t?ey put in it? Ain Says they put in 922 parts per trillonwe. ?tier. Tan-s - is 3 1 All right. And, how much was detected in 2 unspiked sample, sir? 3 A. on that one says it was not detected. 4 Q. Well, on the first page, the em sample on the first 5 page, eight to nine? 6 A. On that one it says 1.2 billion, 1200 7 ppb. - 8 Q. Just suppose hypothetically there was a mixiup, 9 added 992 but they detected 1200, didn't they, sir? 10 A. That's possible. 11 Q. And you indicated yesterday that one way of' . 12 determining what was reaily in the sample is by subtracting 13 the amount that was dete?ted, didn't you, sir, subtracting '14 the amount that was added by a spike? 15 A. 1 said that's something that could be done in some 16 circumstances, yes. 17 Q. You justitied one of those entries as the 310 entry 13 on one of those exhibits as perhaps that's the way it was 19 arrived, did you not, 8152 20 A. i did indeed. 21 Q. Now, if you subtract 992 from the 1200, you'would 22 end up with 208, wouldn't you, sir? A. Something like that, yes. Q.n And that's a value that would be reported here IQ Ln I I rather than the 1200 value,-in fact the spike had been given to the wrong sample, correct, sir922_and you get a value of 1200 or value of 2440? Aft If you knew how much you put in. Well, they know how much they put in, they measure how much they put in to be precise because they want to measure how much they get back, don't they, sir? A. In each case they do, but they do not consistently add a particular amount,'there are three different amounts on this one page. Q. Of course, they only added one amount to sample 4N, eight to eight inches, didn't they? As a matter of fact, corresponding to the records doesn't say they added any to it. .1 0. if you look at - - -. .-. 1e peg? it does sar, we just referred to A. I'm sorry Q. Says 922 added? A. That's to this sample analyzed here. Q. Eight to nine A. The one we were talking about says nothing. I I'm suggestingithat perhaps there was a mix-up as 29 Reg-4'; 9,.q?j-r i you are saying there Was, sir. Would you direct your .t attention MR. MUSGRAVE: This is a hypothetical then, Mr. Carr? Q. Direct your attention please to that, sir. MR. HUSGRAVE: We oh. Q. If there was a mix-up, they added 992 parts to it ?and measured it and got 1200, and you would subtract the 992 from the 1200, wouldn't you, sir, if there had been a mixeup? A. If I'd known that's how much was added I would, but suppose it was 1.2 parts per billion. Q. Where does it say they added 1.2 parts per billion? A. Doesn't say th%y added any. Q. Does say addedito the sample eight to nine 922 parts per trillon, doesnit it, sir? . A. Says they added to this one 922, but to the one :1 erred to in this earlier analysis uoesn't say tney added ref any, so there is no way to know whether they did or not. Q. 'Please direct your attention to the thrust of my question, hypothesizing that what you said was correct, somehow or other they mixed up those samples, when they are reading the 1200 sample,[they are really not reading unspiked sample but they are reading a Spiked sample and the-only 1 E'spiked~sample we have nine that's listed here, i I 2 3t.) 10 ll 12 13 14 15 one, is a sir? sir, is eight to nine trillon, A. that's correct. Q. A. e9- up the samples? A. Q. 1200 R. K) Q. reported? A. Q. isn't that correct, 'No, where they added 922 parts per sir? The only one that is labeled as the spike is that If a mix?up had occurred and they in-fact, they are reporting on the spiked sample as you suggested might have occurred, didn't you suggest that, Doctor? No, sir, they could not have been reported. Didn't you suggest that, sir, they might have mixed sir. If they didn't mix them up, then we are okay,'this sample that was unspiked at that level, correct, No, sir. Does it read spiked, sir? 130,: Sit . All right. Then it was unspiked, isn't it? Certainly believed to he, that's correct. That's what they believed and that's what they 1 That?s exactly right. And on 1414 for the same sample on the low 1 ??gresolution, they detected 2,440 parts per trillon, didn't 31 .Hrthey, sir? 2 A. -They did indeed. my? 3 Q. Again unspiked? i 4 A. That's what they believed, yesOver here on samples 5N they read 1120 and 692 on 5 unapiked salees at the depth of 20 to 21 inches, didn't 7 they? I i 8 - A. That's correct. .i 9 Q. And over on samPle 7N read four to ten at a level 10 of three to four inches, didn't they, sir? 11 A. I believe thatis what's there, yes.?g . 12 Q. The two above it are not detected, isnft it? 1* 13 A. That's correct. 14 Q. They got a 43? at zero to one inch, no_detected one_ I 15 to two,.two to three and, 410 three to four, isn't that .E 16 correct? 17 A. correct. I 18 Q. Certainly.isnit consistent, all.the sudden you've 19 . got nothing for two inches and then you've got 410 for an 20 inch. Now, that's really kind of odd, isn't it? i I 21 A. Yes, sir, that's why I believe he didn't use that - i i7 core at all for that reason. i. Q. Didn't use a lot of data, did he, used the data if: Irigf?hat fit his model, didn't he, Sir? kiwi. "??f?gtr?f? 3.41%; (71523:? . . .. - a ?hh.p.fl?hnr . . ixsi it .A. ?No,:sir:_ i 2 Q. ?idh't use? i 3 A. Yes, of course he did, all fits his model. _4 Q. It all fits his model? Does-the 2440 fit his 5 model? '3 A. I believe it does. 3 Q. How does it fit his model? 8 A. That point his obviously inconsistent with ?he rest '9 of the data. 10 Q. Excuse me, you say, now you say you throw it out? 11 Of course. 4 12 Q. -Then it dOesn't fit his model if you throw it out, 13 does it? 14 A. ESir, the data f- 15 Q. Doesn't fit his model if you throw it out, does it, 16 sir? l7 A. If you throw it out doesn't tit his model, I think 18 it still fits his model even with it included. l9 Q. Did he include:it? . . 20 A. in what? I . 21 Q. The 2440, 1200; 1120 and 692? 22 A. I believe we established he did not. 23 Q. Then he disregerded those values, did he not? 2 3A. i believe thatghe did: -: . 33 0-4- ?2.32 in a - . .313They did not fit his model, did they? . 2 A. I think so, they do, yesthey fit his model? 4 A. Quite simple. You look at all of those data even 5 with those points, the data clearly fit the model. 6? Q. How does it fit his model? We drew a ourve and we 7 have those exhibits in evidence, you saw it, there isn't a 8- mark way up at the top of the reference range, is there, sir? 9 A. Very easy how they fit the model 10 Q. Is there a mart Please allow me to answer the question. 12 Q. No, my question, is there a mark up at the top of 13 that curve_for 2440 or 1200? 14 . A. In the diagram you showed, there is. 15 There is? 16 A. Yes, I saw it on the diagram you showed methe diagram 1 showed you, not what 1e 19 A. That'szcorrecti 20 Q. 1'm-talking about his model, sirthe 2440 the 1200, the 1120 and the 692 on the curves, on the graphs that he drew and prepared and put in -yrfforr?uhlication, sir? . I . ?at-41mg; ?4 . .- -.. .23eg?m?he?i??nweieemqnue-n . . .11.1? his 9 4- Viv- 1 - -. I - 9.5-..- ., .. - . - Then he discarded those because they didn't at this 3 time and it's a curve that goes up and down like that,I 4 doesn't go way back up, does it, sir? 5 A. No, it does not, that's correct. 6 Q. And so, therefore, those data do not fit his model ?7 do they, sir? 8 A. No, sir, I don't agree with that, they do fit his 9 model. 10 Q. Why didn't he use them? 11 A. You'll have tolask him. I believe he didn't use 12 them because he believedithem to be contaminated clearly 13 outside the range at points on each side, rejected because i 14 they didn' fit the rest of the data, whether they fit the 15 model is irrelevant, they are inconsistent with the rest drew a simulated curve, :ent like tLis, down 18 like that,-over like that, isn't that what he drew? 19 A. Had computer do it, yes. 20 Q. That was what the model says should haypen to TCDD 21 doesn't it, sir? . . 22 A. That's correctl 23- Q. Did the model go like this and up like that? ly?A. No. i 1. inf.?- . . . . - Vg?w?mw?mr r. Ma.- 53$ 5:31;? ~33: .. .-. Then this data up like this doesn' fit thislmodel . _w .2 down here? 3 A. That one data point does not, that' 5 correct? 4 Q. That's what I'm asking you? 5 A. You keep asking me about the data, the data are 6 what are on that entire chart, those data as the whole fit 7 the model2440 and 1200, show me on that curve where that 9 fits 1n? 10 A. Those two points do not, that's correct. ll 9. Those two points are part of'the data aren't they, 3 l2 sir? I 13 A. Yes, sir. 14 Q. That data doesl't fit the curve? 15 . A. Those two points do not but the data fits, the data l6 as a hole fit the model. ?s i: 17 Q. is this data rt 01 -ne wh01t, Sir? 18 - A. Yes. 3 19 Q. Can you use that data and say that it fits on this 20 curve? . 21 A. If you use those data and put those two on the 22 points as well as the others, any scientist would look at 3' 23 them and come to the same conclusion that I do, that the data ?g?i whole fit the model.4.- 44 . .. - - man! fits; Lift 52331.60 .5113?.- .lei as". 'iszi ?1 I i; - z; . 64? ?rst 1.1993 pm" 1th?; Vila} - 1 3. I . 413?? ?Etfs?? 1:15#44That isn't what I asked you, I asked you whether or not those data, the ze?d, the 1200, the 1120 and the 692 fit the model, and you suggest -- A. They don't fit that curve. Q. You suggest they fit that curve, the curve is the model? A. No, sir, that curve is a representation of the .model, they don't fit that curve. . Q. If a scientist is going to ignore some plain evidence, plain evidence here where there is no detected at certain'lev?ls, plain evidence here no detected at certain levels, no detected below and above it, and no detected from seven to eight all the way down to 20 to 21 inches, the scientist, if he's goinglto be honest with his colleagues, is. . I going to say, describe those problems, isn't he, sir, going to let them know the ful? truth, isn't he, sir? A. if seized, he'll do that, sure. Q. Doctor} in point of fact, you know that the measurements that they did at Dayton are very much bollixed up, how is it possible, Sir, that you can have TCDD going i l. you have TCDD go through soil and for four inches or six through soil and for twoiinches that it not be'there, how can inches not be there, it is there, isn't it, sir? i 1 In the soil? 5 37? . ctgidig?shi 1.: 1?3 ?2:3 .33L, 1 . . 1 Q. Yes. 2 A. On the site, no, I don't believe it is. 3 Q. You don't think there is TCDD in between the level 4 from zero to one inches and three to four inches? 5 A. Clearly indicated there, of coursesays not detected on this little 7 resolution. 8 I A. The points 4? i I I 9 Q. Doesn't it, sin? 10 a. It does. 11 Q. Then'it says not detected here from five to six 12 inches all the way down, except to eight to nine inches says i- 13 that on the low resolution? 14 A. Yessays sin to seven inches, says it's not 16 there. Well, the method failed there, but all those levels 17 says ir's not there, doesn't it? 18_ A. That's correct? 19 I Q. .Now, we know that it's there, don't we, sir? 20 A. -We know it's where? No, we don't in all cases. 21 Q. You don't knowithat there is TCDD in this, if this 22 model has any meaning atlall, sir, it means that it's going up and going down at the!same rate, that's exactly what Shroy 7fiiqsaysg what his curve demonstrates? . 2 . I. {that . I - .4 1 51.; .9. ac.? i u. . ?r r" 10 11' 12 13 A. That's correct. Q. So that we knol that there hasyto be higher levels than 410 in between thosi two points, we know that, don't we, sir? A. No, sir, we don't know that. Q. we don't know that? -A.. No. Q. Or some levels at least rather than not detected? A. Perfectly good measurements in the righthand column would Show how much is there. Q. Which he didn't use, did he? a. no, sir. Q. Didn't use because they didn't fit the model? i A. As a matter of fact, they do fit the model. Q. As a matter of fact They fit the model when you've got 92 at the surface and 28 at the other level four a mole? 9 to five inches away, the A. Generally, yes. Q. Nearly four times greater? A. Generally doeslfit it, yes. Q. What haopened here in point of fact isn't it a fact, Dr. Wilson, that h: got those figures, those measurements, the low resolution measurements from Dayton and l~i he.looked at his model, at that time he hadn't talked to Dr. in 39 - 18 19 20 21 22 .5 Jury, didn't know his equasions were all fouled up at that time, he looked at those.data that he got from Dayton,:he said, boy, that sure doesn't fit, I've got to do something about that 2440, that doesn't fit, and those items here don't fit, and those don't fit. I've got nothing on this low resolution that fits my model. I'm going to ask Dayton to do it over again. He asks Dayton to do it over again. MR. Object to this as a speech, this is not a question. Q. This is a question. THE COURTE Overruled. It's a question. Q. And, Dayton does it over again and Dayton still 1 I gives figures that are inconsistent. 692, 20 to 21 inches away, You cannot explain this you see if it had been contaminated the first tine, they studied the first time, . 1 I 11 surely Shroy would'have Hile?an, say, eight to nihe level is way off, that z?eo doesn't ?it my nodal? MR. MUSGRAVE: Pay this be a_continuing objection? THE COURT: It as noted as continuing. You may i the objection is in the same question, you don't have to make it as a continuing. MR. MUSGRAVE: i want it to be a continuing objection because he's continuing on with this speech. THE COURT: It's not a speech, it's a questi%51?:th . . V- - - gawk-?5?332.5233531 - . I've overruled it. You are in the same question, theme is no i-i i .. need for a continuing objection. You should know that. Go ahead, Mr. Carr. Q. -(by Mr. Carr) The 1120 doesn't fit the model, must be contaminated, make suie when you do them over again that they are not contaminated, wouldn't he have said something like that to him? A. No. . Q. He would not? A. None of that is a fact. Q. If he thought that this was a false value, 2440, that it was a contaminated value, surely he would have mentioned that to Hileman so he could avoid the contamination the next time around, surely he would have said that, I I wouldn't he, sir? A. In fact, therelis evidence in here?that they?did attempt to analyses it. Q. My question isisurely he would have told would you listen to my question, surely he would have passed onto Hileman his thoughts that this was a false reading, that it was a contaminated reading that he's got, surely he would have said that? . I A. Not necessarily, no. I 1 ?Heswould let themego on and contaminate it again, "4534??Is .- - . a 41? .3. nit 33.1." .. 9* (.what he did_then, what you are suggesting he did, he took those samples again, worked through the spikes again, contaminated by coincidence the very same level that you had the high readings on two times, is that what he did again, sir? A. No, sir, he did not. What he did was he took the extracted material from those same analyses and went through the last part of the procedure again. Any that had been contaminated in the first work?up of the soil samples and re-analyzed in the last samgling would still be contaminated. I believe that's why he went back and tried to analyze that same sampleiagain and clearly failed because' with his spike at 900 and some parts per trillon was analyzed at 80 parts per trillon he did not include that data because obviously there was something wrong with that analysis. Q. That's the point I'm asking making, there is obviousl4 somethinv wrcad with all ot the anal?sis? .J a. No, sir, that's not the case. Q. well, DoctOr, wh at he did, he had a model that didn't fit the equasions. He had data that didn't fit the model. He had data that's @hysically impossible to have I ?1 '1 a occurred in any solentific means, and all he did was throw 1 out what didn't fit his gheory and use what did fit his 1 theory,_isnFt_that correCt, Dr. Wilson? '42 "F'F-f-kar? - .4. '5 4'1 144.4- -a . - - I53 CO 20 21 22 23 A. No, sir, not at all. Q. 'Did he advise any of the scientists that arelgoing to read this article of actually what went on, did he advise, did he put in this article those other values that he did not use and explain why he didn't use them so that his peers could look at that beforeiit gets published to decide whether or not it meets the criteria for publication? Did he tell anybody that, sir? A. I know that he has talked with nearly all of his peers, I have no idea what he told them. Q. He hasn't written it to them, you haven't seen those values in writing to anybody, have you, sir? A. Those values? Q. Yes. A. All I've seen in writing what appears in the paperYou haven't seen those values in writing anywhere, I I have you, sir? A. Well, I've seed them there, that's in writing, but . i I've only seen sent out what's on the paper, just whatII said a minute ago. Q. So far as you know what he's advised his colleagues I is not what appears on this paper, 18 it, 31:? A. I have no idea what he's advised his colleagueshave an idea ahd Ijsimply_do not wand ?Eff, :i 1h'ie?gf.1217- . spar with?you all day, you've seen what he sent out, ygu've - i seen what we have seen, that's all there is according to the sworn oath of your lawyers. Now, you do know, Dr. Wilson, and what you do know is that what was sent out did not contain those values and does not contain_an explanation as to why he'sinot using the total values in the data, isn't an that correct, sir? A. That's quite correct, yes. MR. CARR: I have no further questions, Your Honor. THE COURT: Dolyou have any further questions, Mr. I Husgrave? EXAMINATION BY Hg. JOHN R.-MUSGRAVE 1 Q. Dr. Wilson, wi?h regard to Dr. Shroy's work and Dr. Eileman's analysis, do you know or were you personally present, do you know if any discussions took place hetween Dr. Shroy and Dr. Hileman and Dr. Freeman with regard-to this data? Let me just shorten that to Dr. Shroy and Dr. Hileman I who analyzed those core SamplesIt's my understan01ng that Dr. Hileman transmitted some of the results by telephone, I know of no other discussions. 4 you don't know whether there were ot discussions or weren't other dichssions? . . . .. A. That's correct. Q. And, of course, Dr. Shroy would know that or Dr. Hileman would know that, wouldn't they? I Q. Did you know Dr. Hileman was here and testified in A. That's correct. this case? A. I knew he was here, yes. Q. Do you know whether Mr. Carr asked him any questions about this data? I A. No, sir, I donWt. . I Q. Now, with regard to Dr. Shroy's other peers, you .. . indicated that you knew he had talked with other peers aoout this data? A. Yes, sir. i Q.- And do you know, were you present when those' 5 I discussions took place? A. No, sir. . Q. So you don't know what was discussed or what wasn't discussed, may well have?been discussed, may not have been i I discussed? A. That's correct. .Q.. ?Now, with regard to this data, you used the word 1 U1 a contaminated and you used the word spiked, now, you indicated 2 that you felt that those samples that had been not used were 3 contaminated? 4 A. I believe that was Mr. Shroy's conclusion. 5 Q. In fact, he states that in Defendant's 897, doesn't 6 he, that those were contaminated? 7 A. I believe that's the case. yes. I 8 Q. And does the word contamination 9 MR. CARR: I ob?ect to that last statement and ask 10 the jury be instructed toEdisregard it. It's not an I ll admissible document, coumsel knows it, and I've objected to it. 12 it once, the Court sustaiPed the objection. It's now been 13 completely improper usin% the document the Court has said he 14 may not use. Ask the jur? instructed to disregard it. 15 MR. MUSGRAVE: 'If I may respond? 15 MR. CARR: AndiI hope reprimand counsel. I 17 MR. MUSGRAVE: I would like to respond. hr.-Carr 18 goes into detail as to whether there were any documents that 19 support any discussions that Dr. Shroy had with regardito.his 20 colleagues or Dr. Hilemad with regard to this data and:that 21 very document is Defendadt's 397, and for him to ask that 22 question and then not toipermit this to be utilized, 23?, misrepresenting the facts to the jury. There are such . I he went indo it and opened it up. IL- wig? . . . . ?J-r .. We: 5.1-2; 1 egrrermw w: about Shroy's self-serving documents in which iithat i?aia and I did not.r Q. . -. that'there _was;a contamination of those I ?52; . Dr. 'Shroy as the Court has held is inadmissible because it is selfvserving, not one of those documents that is properly admitted. ?Counsel knows that, the Court has objected to it, counsel now had years of ex perience knew as actly what he was doing when he asked that question. I did not ask a question he was trying to back up this phoney that he put out. I didn't ask those questions because I knew that and counsel is suggesting Counsel had acted improper, he knows he's acted improperdy. I instruct the jury to disregard what counsel said as being I'd like to have the Court improper. MR. MUSGRAVE: the record ll??iCdUiTE. Thelobjection is sustained as to'the .use of the document. I have ruled that it is not admissible. It's clear in the record. You are directly ordered to refer to it in any way, shape, or form.; Q. How, Dr. Wilson THE COURT: And;the jury is ordered to disregard the remarks. I With regard to this work, you indicated againdw'q?. 3119?ng f? {'11 I ?7 (1 rig; If?" i a swimwear. m9? - lath. =9 t?r?aenrx 9.1 . azaeu'sn?arsn . L. 9:91:13: hike. is? 19":1&1; n. . Had-1;; I - 1v?gkaje MR. The Court makes the rules as to what 'wrrs- Jgs' proper evidence and what is not, a self-serving document by gag, 1 311:; 1'9} 33? 12;; 093%" 1131-": 35.344! Eh". ?If .- .- 1. a In? 3:15;: {Jt?a?tt?i lib-.data points that were not included, isn't that correct, I I -. believe that's a possibility, ?es- Q. And you also talked about spiking in conversations . . . . 1 in examination With Mr. Carr, correct? A. That's correct. . . I Q. Now, and spiking being a procedure that would allow you to determine an amount that would be in a particular sample? 1 . . A. Could be under some circumstances, that's correct. Q. And is that wheP you know how much you've spiked, how much you put in? 1 A. Yes. Q. Yeah. Now if aisample is contaminated is that word or can that word be different from the word spiked? i . A. They are very different. I Q. 93h explain how they'are very different? A. The whole essence of a spike is that you add a known amount, know how mach is put in. If it's contaminated there is no way to know.how much might be there or might not be there. Q. Spiking is an intentional procedure of a known amount? A. Yes. 1 .5 n??eQ.33rContamination is what, how does something become .I. . .I- .- I '1 1143311114". --. .r ?as: we . .1- - '43" aft- ?-3311? I. .- '5 331-.- mi$1239. fix, i?lgi}: gill} ids-x 311'?" .Ehcontaminated or h0w could something become contaminateF? A. .There is a yariety-of ways. in this case itImight have been unintentionally or mistakenly spiked and not so labeled, that would be one way there is no way to know how much was added. There could be mixtures, a mode of dust might have fallen off the ceiling. Many ways for contamination to occur. Q. How about would there be any way that that could occur that the use of instruments or the use of documents that hadn't been properly cleaned unknowingly or something of that nature? I A. Both of those things occur frequently. Q. And, you mentioned something in your testimony about samples being re-analyzed, what did you mean by that? A. The exhibit 14 Well'L??You just mentioned that in yOur testimony about samples being re?analyzed in answer to a question of Mr. Carr's? A. Yes, there is some data that indicate they were.? Q. In which exhibit? A. Plaintiff's 1413. Q. And were those data points at those levels that you believe were contaminated? one of them. 49 - A i as: $19" ?tel ifgcurve?l Jae; . -. . l' I 1.: lb:- 7' r, .h . 1., *3??wa '1 ?g?Ei-jrfg?gz all.? 5- I Q. And, when you by that, sir, in the 4D, A. I mean each of to two, two to three and bottom -- Q. Uh?huh? A. No one of those -agree with the curve_that f- and the scientist looked some statistical techniqu the closeness of all of determine what they call Q. The curve that on the chart, except those down in the Q. Generally follo A. Yes. Q. Would you havei I let me see!if I can't ay the data fit, what for instance? hose data points, zero to one, one so on, all the way down to the except the?not detected precisely a. at those and either visually or by determines how close they are and hem taken as the_whole arelwhat, the goodness of fit, iDr. Shroy had, the computer pUt up find that. A. hr. Freeman, actually Q. Dr. Freeman. Well, suffice it to-say I can?t find it right now, but, in fact the points that were plotted after the corrections weren 't tly on that curve, were they? A. I don't think ?ery many or them, if any, were not detected. wed the curve, sir? exgec ted them to be exactly on the was drawn, but they are all cressQ55: 1 . I-?pr 1- . L. 1 . .m?tHai- 55:71.} if P. So - n? 'j ?Wish era-[mm ?weNo, sir.3J I ?was; . 2 Q. Why not? 33' '3 I 3 A. Well, a couple of reasons, the main reason is that 4 there is uncertainty, there is error, there is the law of. 5 averages, things do not work out exactly as they are supposed 5 to Be in any situation, in any curve of this type, any 7 exercise of this type where you are looking at the agreement. 8 hetween individual data points and some constructive cprve." 9 Some will always be to one side, Some will be to the other. I 10 Very few of them may be right on the curve. But a scientist ll typically seeing'that all the points fall on a curve hegins .. 12 to wander about the quality of either the data or the 13 equasion that fits them. 14 Q. But getting ba?k then to your statement that this_ 15 data for 4H fits the cur?e, but you then indicated that 2440 16 and 1200 his 1nd1V1d3al points, of course this is just the 17 same sample, isn't it, this isnit two different data points, 18 this is the same sample analyzed on two occasions low and 19? high resolution, is that;right? 20 3 A. That's correct. 21 Q. And if it's contaminated at the low resolution, the . . 22 sample is re?analysed, still contaminated? ?23 A. That's my understanding, yes. 3% 3 why do you say that giyen- this eight to nine_ . 5.. I . . 3- sir??r {High 51' 33.; . {3.531315' 1 . . 42:9; ?mg: smasher53.111:: In . . level reading at 4N and A. The point doesn the data as the whole fit points with the exception curve that was drawn on follow the same shape. 0 lthumb, there is something conclude something was wr Q. Is that because detected below? Yes. A. Q. And again, over series of none detected a A. That's correct. Q. Does the data a the computer model? 4. air.? the 20, 21 inch depth whe nlin}; .- a .. . - aft-?nch: x9351 . - 6 . . .. ?(gEn-s-x- 4:61.. Earn ifvariation that it has whengyou I. . look at readings above and below that it fits the model? 't fit the curve that's drawn, but the model because again all of the of that-one are very close to the oth sides of it, they are in, they ne of them sticking out, it's a sore that any scientist looking at would ong with that data point. none detected above and none at 5N, the situation where you had re all of the sudden after having a bove it you find this high level? 8 the whole BM in your opinion fit A. Yes, it does} Q. But this data would there be an explana this data and keep that A. No, sir. Would there be: oint down here, would it be logical, tion if you were to throw out all of ata point in? any logical, physical explanation to 11- .. ?52 2 a; r? qty-J; $3433 ?ueq .. ?13-your knowledge, sir, of how you could have those none f. I 2 detected at this level and then have sudden this level? 4 A. You mean in the field? No, sir. 5 Q. Yes, in the field? 5 A. No, Sir. 7 Q. Of this that -- in any way being related to what ?8 -was in fact is buried at the four to five inch level 9 originally? -10 A. No, sir. '11. Q. Mr. Carr, of course, was referring to Plaintiff's 12 I 1414 and 1413 and asking fou about the data that?was there. 13 Now, that data that he was asking you about again was the '14 computer printouts? 15 A. Yes, they are.l 16 i Q. Now, when the computer reads those, does itiknow l7 whether or not there wasfa contamination or if it's not 18 told that? 19 A. Well, the operator identifies those which were 5 . 20 l?spiked. 21 Q. All right. . 22 A. Intentionally,land it knows, otherwise it does not. 21 Q. It does not. And there is no code on here for I. I I I contamination, 18 there?- .mm-v - L: - i- 4'3- 33.35533; ?d ?mg a h, i?di?hx?rzurf ?r ?Migvgag?Wasn't intended to contaminate any, was it? 3 A. That is correct. 4 Q. Was intended to spike them, though, wasn't it? 5 A. Yes, some portion of them. I 6 Q. Now, Mr. Carr I believe showed you Plaintiff?s 7 1432, those were comments made with regard to the Freeman 8 ?comment on McConnell that he had submitted to science i 9 A e, is that correct? 10 A. He showed me one of them, yes. i 11 Q: Do you have that there, 1432? 12 MR. CARR: ho, I have it here, counsel. 13 Q. How about 1451? 14 .MR. CARR: There is no 1451. 15 MR. There is not? 16 MR. CARR: No, we are only up to 1432. 17 MR. MUSGRAVE: Maybe it's 1431, what you marked 18 yesterday then. Yes, 1431. 19 Q. (by ilr. Musgra?e) Well, Plaintiff's 1432 and Mr. 20 Carr you didn't show thi? LO me, I thought you were only 21 marking one page but you marked all of those, is that 22 correct? MR. CARR: That's correct. I Q. Plaintiff's 1432 has more documents in it, does it r?J?Lj :(33 u. hi3: 53:515-541;? Ego, . 5 man-- . I I.. \Ii?l-rt' '13" a ?feind-vxaau;nnot, sir, ?than simply t_he' first page that Mr. Carr showed you? . MR. CARR: I sho the first page. A. Has quite a numb me{: he showed 9. All right, sir. the document where you and Dr. requesting approval to pub the McConnell article and page in the middle, not er of pages, yes.' That was the one Now, Plaintiff's 1431 is of courSe Shroy and'Freeman were lish the comments with regard to also included a letter dated March 9, where Dr. Freeman in fact sent?at~thenoutset the comments to Science Magazine for publication or to be considered for publication, isn't that correct? A. That's correct. a Q. Ehat was the 9th of March, wasn't it, sir, of 1934? A. That's 2 ?a Q. ?ow, referring you to Plaintiff's 1432, if I can rind it here, the document in this package which is or one of the other documents attached to 1432 that has the number C22296 stamped at the bo?tom of it, is a response, is it not, sir, to that Harch 9 letter submitted the article to Science for publication? A. It looks to be Q. Yes. And whatiis the date of that response that,-yes. from -55 .- - 1 I . Uh .4 . .. l'ii?? ?rm-e 12;" .31! 4-. 13:33.1. 253.. ?as, 6&3; regs-s 5' 10 i1?334?! ?r EffieSgience Magazine? A. It's dated March 23rd, 1984. Q. And, it's from one Phillip H. Abelson? A. Yes, that's correct. Q. - And what does the response say, sir, would you read A. It says, "Thank you for submitting a technical comment to ?gi??gg. Because we often-receive many technical . I I I comments on the same subject, we sometimes wait 3 months after publication of the original paper and send the comments then on hand out for review together. _Thus, do not-expect to hear from us until at least four months after publication of the original paper." Q. _Is there another letter then from Science sent subsequent to this Marchi23 response, sir? I A. I don't know, I haven?t looked at all that package. A. See if I can find it. Yes,-the second page of this exhibit that has the number C22294 at the bottom stamped on I it, is that another letter from Science Magazine to Dr. Freeman? A. Yes, it looks to be that, it has got Science at the letterhead and is addressed to Dr. Freeman. Q. What is the date of that letter? March 26th, 1984. '56 I. 1? 9.5., . . 1515? 3-6; a Q. sayGilbert ?date on the first I I I 1 days after or three days after the That?s some two ?1etter? Yes, it is. And, what does that letter from first of all, who is it from? It is from a Lois Schmitt, title, Associate Editor. CE I believe so, yes. Addressed to DB. Freeman? Yes. What does it say, sir? Says, "Your letter addressed to Mrs. Christine commenting on the report by McConnell et. al. has 1 been referred to me for handling since we have decided to 1 treat as a technical comment-'0n page 2 you make reference to a figure showing TCDD Concentration profile at Times Beach. This figure seems not to have been included with copies of the manuscript. forward missing proceed A. Q, response by Dr. Freeman to that letter Please forward to missing figure, please to missing figure to me, I presume they means the figure to me at your earliest convenienCe so we may with the review process." This is March of '84? Does the Exhibit Plaintiff's 1432 include a requesting the I - -v (r 349:, .r?f . . 3.45m a?+?r?41u??uk 12445325 .3331. 3 ?57 .Jg?'if - . . 5 11 11.3. JCFETHfur .211?Ev?:5 ?Raj-:L 'v i- riff! fur-IF: I-?additional figurew'.And that is a letter dated April 2, 1984 from Freeman to Lois Schmitt of Science ?aqazine? A. That's correct. Q. And does it attach the document that she requested? A. . Well, it says there.is an attachment and there is a copy of a figure that is attached. I don't know that that's? what was attached, I presume it might be. Q. All right. But there is a response on April 2 to the letter requesting additional information?. - A. That's correct] Q. Now, is there a letter dated May 23, 1984 in this xhibit, sir, another letter which would be, oh, almost two I months later? A. there is. . I i - Q. From Lois Schmitt? A. Yes, there is. Q. And this letter again is from Lois Schmitt the Associate Editor of Science magazine addressed to Dr. Freeman? A. That's correctL And its date, sir? May.23rd, 1984. :58 10 ll '12 ?Zm: at: ?Water Q. What does she say in that letter now addressed Freeman after this previous correspondence? A. She says, "Thank you for giving us the opportunity to consider your comment on McConnell et. al. I regret to say we have decided not to publish it. We receive many more comments than space is available for and hence must reject .9 most of those submitted. The manuscript is enclosed. Q. Then on this same letter where she says space is not available, are there bome notes handwritten notes? IA. Yes, there areJ Q. And?can you identify?the writer of those notes? A. -Looked like Raddy Freeman's hand to me. Q. Do they indicate he had conversations with Lois Schmitt by the telephone? A. Yes. 0. On huh; Etn, l284? A. Well, says I'm not sure whether it' 5 June 5th or June lst. Q. But there is an indication that conversations took I place? i A. Yes. Q. And, do you then have a letter in this packet from Dr. Freeman back to after June of 1984 dated September 17, 1984? 59 . i ??uf:3 f?feEf-mr?m - 1 i A. Yes, I do. 8 Q. Uh-huh. And, again, this is addressed to this same 3 lady that Dr. Freeman has been in communication with at 4 Science Magazine? 5 A. Yes. 5 Q. And what does Dr. Freeman, in fact, you signed off 7 on this document too, didn't you? 8 - A. Yes, I did. 9 Q. What does Dr. Freeman and Dr. Shroy and yourself, 10 what do you say to Mrs. Schmitt, and this is September of 11 1984, correct? 12 A. Yes. I 13 Q. All right, what does the letter read, sir? 14 A. .?Per our conversation of June 6th, 1984 15 IQ. Just a moment is that the same date that's in 16 handwriting of Dr. Freeman on this, on the May 23, 1984 17 letter? 18 A. Yes, it is. "fhe attached comment on the paper by 19 McConnell et..al. has been rewritten to focus on the 20 environmental-transport bf TCDD. In addition, suggestions of 21 the peer reviewers?have been incorporated pointing out the 22 - possible effects of othei chemicals contained in the soil on -83 the results obtained by ?cConnell. Please c0nsider our or publication 1; Science." as a 1. haying {Ii igh?A1W Jr E223 sf? if!? we 3.- 53! :?try - n?93s ?11All right and the rest of it, sir? A. "The following scientists are familiar with our work and the situation in Missouri and are qualified to serve as peer reviewers:" Then he names Dr. Alvin Young of the Office of Science and Technology Policy, and Dr. Paul 5. DesRosier of 0.5. Environmental Protection Agency. Q. And attached to that September 17, 1984 latte} to. Lois Schmitt is a A. Looks like the manuscript. 1? ?1 - Q. A manuscript? A. LYes. Q. Involving the same topic that was originally sent to Science, is that correct.Quite modified? but same topic. ?5 -THE COURT: Mr' Musgrave, is this a good point for a break?" HR. MUSGRA I think it is, Your Honor. THE COURT: Ladies and gentlemen, we will take recess at this time. I would remind you this Will go for any other break we take during the day, that you are not to discuss this matter among yourselves, with anyone outside the jury panel, or as of yetiform any opinions or conclusions about the matters on trial. Court will be in recess. (Following a recess, these proceedings were had in open 51 5 I '2 . 17 18 19 20 21 22 court.) MR. MUSGRAVE: like'to straighten out an of Defendant's Exhibit, 1 like to have the record yesterday as Defendant's memorandum of Dr. Wilson dated April 1, 1982, shou previously marked a 904. THE COURT: Oka MR. MUSGRAVE: that change if we could, THE COURT: SO Your Honor, before I proceed, I'd error that was made in the marking flwe can, and if I might, I would eflect that the document marked E?hibit 904, that being the td s. G. Collins and L. J. O'Neill 1d have been marked 905.as we had y. Fine. Would-like thewrecord to reflect please. - reflected. Thank you. 9., .(by Mr. Musgrav were talking about the Is I and Dr. Shroy again to L3 September 17, 1934 where manuscript? A. Yes, sir. Q. And, in that le you read to the jury that had been rewritten to ?06 TCDD, and then it says, reviewers have been incor e) Dr. Wilson, when we broke, we tter of yourself from Dr. Freeman 13 Schmitt of Scienge_?agazin_ dated there was a resubmission of a tter, I believe you indicated when it did state that the manuscript us on the environmental transport of 'In addition, suggestions of the peer porated pointing out the possible a? 52 ?we ?3?fett? u- if?! rd "aim *4 ?r ,4 age 5'55 9 3i - -. is?; ?if; . "n I .- "i $3.114 ?in . .. ?14" I . 5-3 153;; 2., 9 152:5: I 1 effects of other chemicals contained in the soil on the ?2 - 3.1K. - . 2 results obtained by Mcconnell. And then request that the? 3? 3 revised manuscript be considered for publication in Science "3 4 Magazine? - 5 A. Yes, sir. ?6 Q. Now, Mr. Carr showed you Plaintiff's 1432 which 7 were comments as he indicated from someone, it's i 8 unidentified, is it not? 9 A. That's right. 10 Q. But comments, Someone from Science Magazine on the 11 manuscript? 12 A. Yes, Sir. 13 Q.. And, were there not well, would you look in your 14 Plaintiff!sjl?32 and see;if there is_not also another comment . . 15 from Here is another one. 17 Q. Yes, and that.is again a comment and it's indicated 18 as a comment on the McConnell et. al., and Freeman et. al. is .19 the author? 20 A. That's correctL I 21 Q. Entitled also comments for transmittal to the 22' author and other comments there? A. Yes, sir. Q. Now, then it would appear from the exhibit I'm-mi. r- - - . .1 .. .. .. ..- as:arf?i??si?ii?i?glf??a??Jir- . 5? ?rgilwfPlaintiff's 1432 that there were at least two.individuals . 2 unidentified that commented on the manuscript of Dr. Freeman 3 and yourself that had been submitted to Science for 4 publication? -5 A. That's the way it appears, yes. 6 Q. Getting back to September 17, '84 letter that we 7 have just been talking-about it, it did refer to suggestions 8 of the peer reviewers have been incorporated? 9 A. Does say that, yes. I . 10 Q. Do you know whether or not those comments in those 11 two documents where the jeer review, peer reviewers comments 1 12 that were incorporated in the redo of the manuscript? 13 A. Since I know oh no others, I assume those were the 14 ones. 1 15 Q. In any event, after September 17, 1984 when the 16 review of the manuscript with the suggestion of the peer . . . 1 . . {17 reV1ews being incorporated was sent to Science, is there then I 1 . . . 18- another letter back from:Sgienge to Dr. Freeman with regard I . II 19 to this review or.revised manuscript? 20 A. Yes, there is. 21 Q. That also appears in Plaintiff's Exhibit 1432, does I 22 it not? 73; ?92} A. Yes, it does. I 'That is a letter dated what, sir? 64? - . i 51.1.: ll-?24 September. 1984. Q. And is it again from Lois Schmitt the same lady -there at Science Magazine who Dr. Freeman has been corresponding with in '84 regarding this manuscript? A. Yes, it is. Q. And what does she say in this letter of September 24, 1984 to Dr. Freeman? 7 A. She writes, "Thank you for your letter of 1% September 1984, resubmitting your technical comment on McConnell et. a1. Unfortunately your comment has "grown" appreciably in the revision and now greatly exceeds_our length limit of 500 words, including references and notes. Your paper will need to be shortened by at least half before 1 I we will be able to consider it. Your manuscript is Sincerely." i I enclosed. I Q. ?That's September of 1984? A. That's correct. Q. And now is there in Plaintiff's Exhibit 1431 some handwritten notes that bear the document number at the bottom, sir, A. No, sir, there is not. I I THE COURT: This one 1s 909? an. HUSGRAVE: 1: hope so. Yes. MR. CARR: This a document you didn't produce? .65 i i I 131f?1? 1 MR. HUSGRAVE: Yes, the document-number is right 2 down there. IE - 3 MR. CARR: If it's not in that group, we don't have 4 it. Because you produced it this morning, everything I got 5 _the witness has, I gave the witness. 6 MR. Take it back, here it is, right on top. 7 MR. that to his Honor. . 8 - Q. (by Mr. MusgravE) Handing you 5.9, Dr. Wilskn, 9 what's been identified as Defendant's 906, it's a handsritten 10 note, can you identify the handwriting on that? 11 A. Looks like Randy Freemanls handwriting to me. 12 Q. Did it bear a date? 13 A. It does. i 14 Q. That's the same Raymond Freeman who's the doctor, .15 the author of this artic?e with regard to the McConnell 16 paper? i ngi Va 17 3. Yes. i 18 Q. And, does LoiSESchmitt's name of Sgienge_?agazine 19 appear in those notesHer telephone number? 22 A. A telephone number. 23 Q. And what does she document read then, the rest of . es? til-ad . - . .3. the 5.. awn?.1.? -. 'W'E?dq. ft. .5. 'i . Mums egg-1'. 3&1. ~rf' . . . 93_ In- ?rl 41.4 'n w} 345%? - 231.1%? .- - - .4- ., .p-I ?4 'n I Says, "Put all details in the appendix, appendix will not be published, resubmit." Q. 'That's a note dated November 13, 1984? A.. Yes. Q. Now, do you know, Dr. Wilson, whether the manuscript has been redone to be shortened, to be resubmitted? .. A. I know it has not yet been resubmitted. Ranby'is supposed to be shortening it. I don't know where he stands. Q. That would be tPe current status to the best of your knowledge on the co?ment on the McConnell wore? A. Correct. i Q. Now, Doctor, giing back a moment to the letter from Renate Kimbrough, 1417, to Dr. Shroy, the. comments that she had with regard to manuscripts that she had reviewed othr. Shroy's, do you have 1417? A. I do not, I don't believe. No, I think not. Q. Let me hand that to you, Plaintiff's Exhibit 1417, Renate Kimbrough's letter, that's dated_June of 1984 is it not? I A A. That's correct? Yesterday Hr. Q. Now, would you mark this, please? Carr asked you questionstwith regard to the EPA and whether '*;3they had agreed_with or disagreed with Dr. Shroy's work on 67: waif,? .- i i volatility characteristics'of you recall those 2 questions, sir? I 3 A. I think so, yes. 4 Q. And if my notes are correct, I believe you 5 indicated, if I can find them here, that you felt the EPA 6 agreed with the theory of transportation as a result of the 7 handling of soils at plants of Monsanto? . 8 A. Yes. 9 Q. Could you explain that to us, sir? 10 A. Well, there were two plants where soil became ll contaminated, one aluminum plant near-New Orleans, one the 12 Nitro plant near Charleston, West Virginia, the one, the 13 Luling was a relatively small area, we believe resulting from 14 transfer of material during unloading and loading of railroad, 15 cars. At the Nitro plan; there was a rather extensive area 16 that became contaminated during the course of production 17 between 1949 and '69, '7q, whenever it stopped. In the last 18 two years, the EPA has visited all sites where was 19 produced and aslt questions*Something like that. g? Q. Now, did their medical doctors advise that those,? or do You know whether their medical doctors advised that ry those fat samples_be taken of those geople? A. No, I have no way of knowing that. Q. "If their doctors didn't.adv1se them to have those ''fat sample tissues taken, do you know who did advise?tFat they have those fat sample tissues taken and analyzed? A. I don't know anything about that. I Q. . You think they.would know enough themselvesrt0590?.d 151" ., 4. ,?Sn?g a? - the general population is;not causing the ill effects that 2 they complain about, ya?lfeaeab;? that geestion? 3 A. Not very well. 'Something like that. 4 . Q. So, would it appear that he is contending, sir, 5 that the spilled material out there has increased, the levels 6 of diohin that he believes his clients have in their bodies 7 over and above the general background level? 8 A. That' 3 what I that's what I infer, yes. 9 Q. With regard to low level exposures over a long 10 period of time, we have looked, sir, at those Viet Nam 11 studies, looked atVthe cahadian?studyy-those Other studies, 12 that you've talked about where in almost all instances those was . 13 low levels of dioxin in the body have been feund, you recall 14 those, sir? 15 . A. Yes. 16 Q. And no c?i?gi??ia? of health effects, you recall 17 that, sir? 18 A. Well, the only one where that was mentioned was the 19 Air Force study and that contlusion was term. . 20 Q. In the Canadian study they said all the people that. 21 died, died from common causes? 22 A. Said something to that effect, yes. I . 1.23. Q. Usual causes. ?And, those background levels, would you consider those lou?dbse exposures over a low, over a ?r 1. .431?3 - . 1.x . te?vasvm -. 152? I midi?i?i-zg??a 1? period of time? A. ?ery low dose. Q. Aha no reported least so far in the literature, correlation of health :0 effects, at is there? I have seen that. Q. Now, sir, then if that is the case and there are in fact then what appear to be some low-dose exposures over long periods of time out there from those studies, if Mr. Carr is contending that his clients have greater levels of TCDD than general background, wouldn't a post-tissue study demonstrate that-if they had 15, 20, 30, 40, 50 parts per trillonan. . . 3:16 A. Or you could demonstrate that, yes. Q. If you took a fat sample? A. _Yes. Q. And this general information about how much you need, the Viet'?am Study, did the samples-taken there werelfive to ten grams? A. I believe that?they reported two to ten or ?something like that. A 1 I Q. Their level of detection at least-on one indication was down to one part yer trillon, was it not? A. I thought the lowest was two, but, in the low parts I'f_per trillon. A~u .. . I an. dura?r? . . 1. .. 349one part per trillon, wasn't it? A. There is one there, yes, that's correct. Q. The Canadian study I think we established the samples of to 20 grams and they were detected certainly down at least to the-lowest detection of 4.8 parts per i 1 1 I trillon? A. Four is the lowest they report, there. i Q. Four. So if in fact those people from Sturgeon have, as Mr. Carr suggests, TCDD in them, over and above the general background levels, that he says are causing ill healt? effects, wouldn't you suspect that those they had of post?tissue tests could ghow that if that's in fact what he ?believes? I Ones done now with current methods could certainly show that, yes. MR. MUSGRAVE: ?No other questions. THE COURT: Mr Carr? -HR. CARR: Yes, Your Honor. 1 1 RECROSS EXAMINATION BY MR. REX CARR 3. Q. Wilson, do} ou understand that Mr. Hus rave . 9 that I should have my clients submit to an extremely painful ffisoperation in order to prove something we have already proven V. . 16 17 18 19 20 21 wouldn't it, sir? i ..-- -- for the jury to decide, not for what Mr. Carr -- MR. CARR: I thbught that's what you were just asking, proving somethingt 1 MR. MUSGRAVE: i was asking what you were asking . I: I I 1 Mr. Carr. . i an. THE COURT: Objection is overruled.- Q. (by Mr. Carr) Doctor, do you understand that the reasOn two of the three had fat samples tested in 1979 was 3' because in 1979 MonSanto_said inhthe;tankgoarg? and in documents filed in 1933 they said no in Ithe tank car. The first time they admitted that it was in the tank car was in this courtroom in front of the jury! MR. HUSGRAVE: EObject to that. There is no evidence of that. a} HR. CARR: Most certainly is. THE COURT: Overruled. O. (by Mr. Carr) Now Doctor, you understand why the Kemner's would follow to.have fat samples tested at that time in order to try to prove that Honsanto was not telling the truth? You understand that would be a good reason then, i A. 91f it's as painful as you say, no, sir, I don?gTI-f's'g? ?93? @511 .56? .: 5.: .1 . if?? 4} . by the facts? 1? I 1" MR. MUSGRAVE: Do you understand that the facts are a . K: 155;. h.?Wk-"73m .- . . 'think that would hang They for that purpose, sir, they didn't take the 125 grams, you understand that, sir? A. l.only know yhat you told me about what they took. Q. And, Dr. Wilson, Gary hason's sample was taken b?bause he was-having blahkouts and having difficulty and he had it splashed on his body and that's the reason his doctor suggested he have it taken, try to show whether there has or was not enough TCDD in his fat Sample to account for those serious problems that he was having. You understand that, I .. sir? A. No, sir, I don't know anything about that. Q. Then, would you say that I should ask the 65 clients to submit to this in order to prove that TCDD is ?having health effects? A. I w0uldn't care to give you advice one way or at all, Sir. Q. Doctor, if they submitted to it and it showed higher levels of TCDD inftheir fat, in their ordinary background, would you then concede in this case and by you, I mean ?onsanto, would you then agree that we are entitled to the damages to that,_we can step this trial?? A. No, sir. Thight agree to do that, Doctor33r? af?rm kiss: it E: r. . - ?Kg-??z-?ziinahfr?a?m risks-grease 4.331435? . a -. ?l.1i1"- - . wouldn't agree to that.19 1.You wouldn't.agree to yb?, sir, because what you would say well the farmet burned the barrel, or he did something else, or ate some cattle from some other place, or he drank alcohol, or he did something else to cause those problems? That's exactly what you would say, isn't it, sir? HR. MUSGRAVE: Object to that as a speech byi It's argumentative. Ove air uled.. counsel, not a question. THE MR. CARR: I have no more questions. MUSGRAVE: bust one. .. ?aw CLARIFECATION EXAHINATION- I . BY MR. JOHN MUSGRAVE . Q. Dr.-Wilson, Mr; Carr just told us it would appear, we" would it not,?about a medical reason thatfa doctor told one of Mr. Carr's clients to have the fat sample taken, I believe he said to see if the k0uts he was havi.ng were causedb 0y TCDD that he couldn?t fi a? blaic A. I'd interpret that that way, yes, sir. MR. MUSGRAVE: No other questions15..- anything. -. EXAMINATION BY MR. REX CARR Q. You understand that was again in June of '79, before Monsanto admitted that there was in the tank car and in the soillat Sturgeon, do you_understand that, 'sir? . ?5 A. I oon' know anything_ about when- it was done or I MR. CARR: diat's all I1haVe. . i .- .. MR. HUSGRAVE: Nothing further, Your Honor. THE COURT: Okay. Gentlemen, could I see you atgi- the bench for a minute?? I 1 . (FolloWing a side bar ponversation which was-outside the hearing of the jury ang the Court Reporter} the following - proceedings were had in open court.l?y J. . - 1} Er. Wilsonr?you?may Step down. Ii - RR. CARR: C111 Dr. George Roush to the stand as an I 1 :1 adverse witness, Your onor. V, I 1* .- 1:5. (being called as a witmess 'Sn benalr of the P1aintif under . Section_2?1102; upon being testified as followsghoss EXAMINATION 1 JBY REX CARR le?f' iF-a 1 Q. Would.you state your name please, sir? 1 . 2 i A. George Roushman are you, Dr. Roushwhom are you employed, sir?, 6 A. Monsanto. 7 Q. And, how long have you been so employed, Dr. Roush? 8 A. Could you speak up just a little bit? . '9 Q. How long have ybu been employed by Monsanto? 10 3. Twelve years. i 11 I. Q. 'You started wortihg?for themiin 1974, I believeI'm sorry? 1 14- a. '73. . 15 Q. All right. And, the Medical Director at Monsanto . 15 and you haye a departmen? that has a name,'do you not, sir? 17 A. Yes, sir. I 18? - Q. What is that name? i. 19 . Department of Medical and Environmental Health. 20 Now, all during the time you worked for Monsanto, . . . 21 have_you been director 0% that department? 22 . .A. No, sir. . . . 92- pIn what capacity did you first join ?onsanto? . 1 A. was ASsociate Director. ?j on 1. 159: 1 Q2 2 w: . @333? . I a 1 Ahd Where had you been before that, Dr. Doush? was at Tulane Uniuersity. 3 Q. In what? 4 - A. In New Orleans. 5 Q. In-what position? 6 A. I was Professor of Medicine. 7 Q. How long have you been Professor of Medicine? 8 A. ~Five years. i gt 9 Q. Had you practi?ed medicine before that? 10 A. While I was atETulane I was also Medical Director 11'1' of Ilhad two jobs. 1 ,l 12 Q. Okay. Thatfs Ethyl Corporation, the company that 13 sakes additive to gasoline? 14 A. Yes, sir, tetra.ethyl lead. 15 Q. And how long hid you been with that company? 16 A. J'Ten?years. . 17 Q. Had you practiced medicine then before that, sir? I 18 A. No, I taught at University of Cincinnati before 19 that.' I 20 I Q. Same Universit$ of Cincinnati that Dr. Suskind is 21 associated with? 5 I 4 22 A. Yes, sir. I . Q. And I take it then that you knew Dr. Suskind from Cincinnati association44-4. Hue:- .333 1fHe'wasn't_there'when I was thereI?all right. Doctor, have you practiced medicine in 3 the past at any time? 4 No, sir, always been at a university. 5 Q. never been you've never practiced medicine at 6 all at any time? 7 A. Just universitw hospital. 8 hi Q. Well, then youldid practice medicine in the; 1 . 9 university hospital? 1 10 A. Yes, but not pdivate practice. 11 a IQ. But did you treat people, sir? 12 A. Yes. i 13 I Q. What was your field? 14 - A. Internal medicine. 15 Q. I?m sorry? 16 1' A. internal ?ediCine. 17 Q. Was it just while you were at Tuiane University 18 that you practiced medicine? 19 - A.r No, 1 practiced at Cincinnati. 20 - ?Cincinnati also. You are located at the 21 headquarters or your offices right across the river at Creve 22 Coeur, Missouri, is it ndt, sir? . :.2?hu THE COURT: Okay, Mr. Carr, we need to take a short I i ?f?gegessiat-this point.? THE COURT: All right. The court is ff 161' 9?13?? Ii. .41. l. wl?hw?wim? .. short recess. (Following a recess, these proceedings were had in open court.) Q. (by Mr. Carr) Dr. Roush, could you relate for us- your duties as Director of the Department of Medicine and Environmental Health for Monsanto? A. Our department has a responsihility of monidering I the health of the workers who work for Monsanto at al? of 96% locations. 'That means td watch over them, to make sure they aren't adversely affected by the work that they do. That's one thing we do. We also monitor the work environment at 3? each of the other locations so that each and every worker is _not exposed to a concentration of the chemical in any way-by skin or my inhalation, that he wOn't suffer adderse effects; and, thirdly,-we do toxi?ology on our products so that we can I - define the'hiologic effedts of those products so that we can I decide what we have to protect our workers from. And then using all of that data, Te write safe data sheets and write descriptions of the how those products can_be handled safely. Doesnit mean they are not toxic, but it means by I handling them correctly means they can handle them safely. Q. How, the last aspect of theztitle of your department, environmentah health, you have duties broader in scgpe than just the workers at Monsanto, do You notJunk"1 152 m?wdgae?sma restless new 20? 21 22 I, 'v'f ?1 . RoushOur responsibility is to insure that our products are used safely, and in order to do that, we write safety data sheets that describe how they are to be handled. We do not have responsibility to go out and monitor the environment outside of Monsanto. Q. Well, you do have the responsibility insofar as the public is concerned, that live in the outside environment outside of the Monsanto ?lant to see to it that the products that are produced and manufactured by Monsanto are used in such a fashion that theylwill hot have injurious health effects, isn't that correct, sir? A. That's correct, we write a safety data sheet that will describe how that product can be used safely. 9. If there are hazardous substances in your products, it's one of your obligationsito see to it that the public,, the ultimate consumer, gets knowledge of that, isn't that correct, Dr. Roush? a. We write that safe handling instructions for all_of, our chemicals so that they can be followed correctly. ~We do not follow the product ihto our customers locations and insure that they use that safely. I . Q. No, but what you do do, or at least what you are supposed?to do, is to make sure that your customers are aware -.. . . ?ii I . .- . 2:33 4.131. -: - "gl 536-5353;: - mailing-?Wq?yf?i? Ff 3531;: P. - safe handling instructions but safe handling.instructions ?g that, 1 .. I . I ?79-of the toxic substances that maly_ be, Inot may be,- that are in fact in Monsanto products, so that they can be aware of the health problems that may arise from the use of those products, isn't that correct, sir? A. That's right, we write safe handling instructions to insure that they can do that. Q. Well, my question goes beyond that, not just to i would he, say, how to use it, my question makes sure that you I understand me, my question goes beyond that, is it not your i obligation to let the customer know what is in therproduot I that might be harmful_tofthem so that they would have the -knowledge and more specific knowledge as to not be exposed inappropriate fashion? 1 A. We do describe what the product is, so that, and I . tell them how tox ic it is, and tell them what the effects are from other exposure, andithen tell them the safe handling so they can keep that all from happening. Q. Well,-m0re specifically, do you not and isn't it 4 . . . your department?s responsioility to see to it that customers I I are aware of and are apprised of the toxic contents of your various products? . Yes, we call them material safety data sheet that 2 15's. I- 1- Axum-:2 L. 1 . . .w?v?vl?ln .. . . 20? it"? -.-. :Now, insofar as that obligation is concerned; you I have toxicologists that work in your department and under you and you have medical doctors that work.in your department and under you, do you not? sir. A. Yes, Q. What other kind of professionals do you have in addition to toxicologists and medical doctors? I 1 A. he have a section of industrial hygienists mho have responsibility for monitering environment in the work place to insure that we don't have other exposures there and meet all regulations;? In addition to that we have a section_ called epidemiology, in phich we take the data from our lhealth examinations and look at the total experience and do a study, a statistical study, of the health of our employees. - Q. Now, when did this part of your department that is . . dealing with epidemiology come into being,-sir? A. Well, as soon as I came to Monsanto we started to do what I call amateur epidemiology, done by non-professionals. I had toxicology work, every occupation. of physician does epidemiology, because you look at the work force and look at the population and see if there are abnormalities in such a group, but 513 years ago we hired a professional epidemiologist who has built up the department since then?gLilian. ?mks-u. . (I. :61. nufu?'fku?iam?f? 4v. 3:171 urn {-331 - . .. . 7 Q. who would that be? A- Dr. Gaffey. Q. Dr. Gaffey? A. Gaffey. Q. Yes. And you had, of course, Dr. Zack in your department before you had Gaffey, did you not? A. Yes, sir. 0. Sir? A. Yes. I Q. And Gaffey, I'm sorry, Zack she was an I i epidemiologist by profession or toxicologist? 2- A. Egidemiology, she had a Master's degree in egidemiology. She was there before Gaffey? - I A. Yes. i i- A- . Q. But when you hired Gaffey yOu became mor? formalized in your desertment for epidemiology, is that correct, sir? Is that what you are saying in.effect? A. Yes. Q. Hot that you didn't have epidemiologists before I Gaffey was hired, wasn't formalized as such? A. That's right. Q. ?ow, what other duties do you have in your have you pretty well related them? 1 '156 ?air ?4,1211 mg, 'procedures, we are going including Santophen? A. We provide direction for Monsanto for change?in H. to handling of chemicals, provide guidance for them On environmental matters. Q. .Now, when a.particu1ar department, say manufacturing department, asks you what are the adverse health effects of a certain property or a certain chemical or 1 I a certain constituent of-a product, it's one of your ?r .l obligations to so advisejthem, isn't that correct, sir? I 'c A. Yes, sir. Q. Now, do you_recall being asked in writing, in 1979 on more than one occasion by Dr. Wilson to give him the a safe chlorinated phenol products A. Yes. - Q. Did you give a'response to him in writing, sir? a . no II 5161 'not Q. You are aware pf what Dr. Paget told Dr. Wilson in July or '79 with regards to Santophen, are you not, sir? A. Yes. i Q. How, is-that and that document was in-wfiting. Is there any other document, sir, that you know of that exists in which your department or anybody in your department advised the chlorinatedgphenol manufacturing in as to safe levels for dioxin contaminants in your chlorinated phenol 5 167 3. v: 364:1? .2525: at: ?rming my. .. use w? ?5 {gig ?r??gy . a productS?Lm 0 2. No, we did not. 3 Q. how; Doctor, the requeSts were made of you in . 4- writing1r and I've seen literally thousands of documents in 5: writing and I've-seen, and there has been in evidence those 6r requests of you in writing, two or three in a row in November . 7 of '79, all of which was in writing, and I see no writien - i i 8 _response franyour department. Should you not have respondEH' 9 in writing so there would be a record of what you said, Dr.. 10 Roush? i -I ll No, we went to;talk to them. We said that was. we? l2 satisfactory, the one part per billion. l3 Q. All right. No+, somewhere along the line, you got 14 'from-sonebody information that a spill had taken place at' 15 Sturgeon, did you not, sirNow, at that point in time did your duties and your 18 Department of hedical and Environmental Health include the 19 problem that existed then at Sturgeon, the.occurrence at 20 Sturgeon? 21 A. There are two ways that that can be my response, . 1? 22 either because I thoughb it was or because the?company would . 6 call me and ask for an opinion. And both things happened -A. Yes. Q. So the occurrence at Sturgeon, you became connected with, at least you are, perhaps not you personally but your department became connected with it, actually from the very beginning of the episode? A. Yes, sir. Q. Was it not, sir? A. Yes, sir. i Q. And it has been associated with it and connected with it down to and including the present time, isn't that correct? Yes, sir. Q. Dr. Paget, of course, was the person from your department that was originally assigned to work on the Sturgeon incident, isn't that correct, sir? A. ?Yes, sirsigned and did so work until some F-L- -- time moderately late in 979, is that correct, sir? A. Yes, sir. Q. Now, after that, who became the person from your I . department that would haqe been assigned to the Sturgeo problem if anybody? A. I didn't assign anyone, it was my responsibility. 3:3fd? 9.. It was your responsibility from that point on, is 1 ?16-9 0.?f'alg?'jr . . G- -.. i?5 that correct, A. Q. A. Q. execute sir? Yes, sir. Sir? Yes, sir. . I Now, in line with your responsibility and to your duties properly, you of course have to know what I contaminants might be inithe tank car that spilled at' Sturgeon, A. Q. Missouri, isn't that correct, sir? Yes, sir. Now, you askedlin your responsibility thoselpersons that should know, you ashed whether or not the dioxin that I was found to be in the tank car, you asked whether or not that could be did you not? A. sir, Q.- Yes, sir. And you were told that it was not, weren't you, i .. 4? We were told that it should not be. You were told bore than that, Dr. Roush, I beg to differ with you, you were told that it probably was not or more than that, it was not, weren't you, sir? In? I Q- in this u- if you would. It's hard for me to recall the words at that time. Well, let me show you your deposition that you gave case on to refresh your memory, I've-underlined the answer that you gave to ?slam . . 170? aa?uh t- a ~i a ,i -that question?? i I ?That it probably was not. I Q. No, more than that, it probably was not, it was not? A. Right. Q. Yes. Now, at that point in time, sir, and how long a from that point on when you were told that, that it was not, were you ever advised from that point on, up until today, that indeed it was in the tank car, everibeen told that, Dr. Roush? A. we have had many discussions since then about whether it was 2,3,7,3 or not? A. But my question is, have you ever been told, sir, 'up to the present time that indeed it was that I .- 5 was in the tank car? 5. . A. i was told that it could be after that. Q. Then is the answer to my question, is that still to this date, you have never been told that it was in fact in the tank car? A. That's right. Q. Were you ever told that Professor-Rapbe, in Sweden, confirmed that it was in the tank car? I heard later that he_had said that was correct. How much lateridid you hear that, Dr. Roush? . A . 'r 171. - I. ?j lgf?: In: ArIf?? . can?) 4- 415aid-M fi 2? Euli?Eina?drd?wmm??tw ?5313?? rm.- Ferd-L - A. I don' .t recall thatbeen since the start of this trial? I A. I know it's been since then. Q. Yes._ Doctor, when you your department became involved early on, are you aware of the fact, you know Dr. Kaley in ?onsanto,?analytical chemistry department, don't you, sir? A. Yes, sir. I 1 .- . Q. Did anybody ever tell you_that Dr. Haley at that point, right shortly aftet the spill occurred, within a month of the time the spill occurred, that he estimated that 1 percent of the TCDD in that tank car was MR. HEINEMAN: Object, Your Honor, that' a .total misrepresentation of Dr. Kaley's testimony and Mr. Carr knows_ I . .I that it is . 1 I 1.4. - I THE COURT: A. Could you ask the question again, please? THE COURT: Let me explain the ground rules. If I overrule an objection, you have to answer the question. A. I understand I just asked for the question again. ass COURT: I'm sorry. a i . (Court Reporter read back the question.) A. No. Q. Have you ever seen you get Exhibit 1142 A, 172_ u- I 4 . '1 told ?act . A. Yes, Q. Now, seen that} 1 A. I've. ?tQ. "Just ?gi?? 0: Sir? A. I YES, Q. back A. Yes. what's been marked Plaint sir. which you have in your hand? I suppose it will he, I've golt 1142 here. you've ever seen that be?ore, sir? 11' I M. - ?ishand you -now if_f' 5 Exhibit 1140, ask you if And you recognize that this document I hold in my hand, 1142r is a blow?up of that could youltell me whether or not you' ve ever I -.. Seen it recently. recently? sir. testify in this case?uff-L a? 5.11? 'ttindicates-affirmatively.) But you were not aware what Dr. t' .15 i Again} prior'to the time you were coming here to Kaley estimated in 1979, isnft thaticorrect, Dr. Poush? Dr. Roush, hadyyou asked anybody recently why they A.e? Welly 1. r'l .it was, ever ask anybody thatr sir? we talked about it often.- you that it was notl 2, 3, 7, 8? TCDD in the tank car when in question is} You said that you were told that it a: was not in the tank car, now my question Es, now 2 that-you?ve learned that it was in the tapk car, 3 you ever ask anybody why they didn't tell you that it has 4 2,3,7,8 in the tank car? I . - i 5 MR. HEINEMAN: Object, Your Honor, the witness just 6 said that we have talked about it often, I think that is 7 resgonsive to the question. I don't think it needs to be BWF -reiterated, and the witness already said, which Mr. Carr has 9 failed to point out~in his answer, that he was told tgat it 10 could be 2,3,7,8 in the tank car. ll THE Overruled. I don't think the answer 12 was responsive to the question. That's not what it asked . . 13 for. 14 A. We discussed this and chemically I was told 15 Q. No, Doctor, th%t isn't what I'm.asking you, what 16 I'm asking you now that know that it was in 17 the tank car, now that you know that, sir, have you asked 18 anybody why you were told-back in '79 that read this,t this doesn't say there is 2,3,7,8. 21 Q. Doctor, I'm asking you another question now altogether, all right? ;g A. Yes, sir. ,1 Q. You understand that your lawyer has stood in front - 174 \ 1 of this jury and said that it was in the tank 2 car, all right? Do you understand that, sir? 3 A. Yes. - 1 4 Q. Now, you were told in '79 that it was not I 5 in the tank car. Now, my question is you now 6 know, sir, since this trial started that it was 7 in the tank car. My question to you, Dr. Roush, is hays you 8 ?asked anybody why you weren't told that factDoctor, you know from exberience -- first of let me ask you this, do you know the extent of the clean-up 12. that took place at Sturgeon, Missouri? 13 A. I've been toldlrecently how it took place. 14 Q. Well, were youitold that part of the contaminated 15 dirt remained in Sturgeon, was not removed? 15 A. Yes. - l1 17 Q. When did you learn that, sir, for the first time? i 18 A. Recently. 19 Q. Again, just :eLently. Now, how recently, Dr. 20 Roush? 21 h. In the last year. . ?22 - Q. Dr. Roush, tha? means some time in the East twelve 23 months, after this trial commented, you were told that all {it the contaminated dirt had not been removed, did you ask 175 10 ll 13 13 19 20 anybody why you weren't told before that that contaminated dirt had not No Did No, Did sir. anybody tel sir. Ithe been all removed? 1 you why they didn't tell you, sir? at the company knows that it's your- l. 0 resyonsibility, the head I of your title is Department of Health and, Degartment of?Medical and Environmental Health, everyone knows that, don't they, sir? A. Q. Yes, sir. 1 And, they also know that for you to make appropriate decisions_you have to be advised of the full ?actual situation, they should know that, shouldnEt they" sir? A. Q. Yes. And you do have_to knowrth?? I I I I i actsVin~order to make approgriate deoisions, don't you, Sir? a. .9. Yes, sir. Did you learn that instead of removing the contaminated soil, that they commenced washing it in mid 1979. MR. i I 1 i You suggesting to him that none of the contaminated soil was removed, Mr. Carr? I Q. Did you hear my question, Dr. Roush? 175 ,1 ?242 J-Yes.y MR. HEINEMAN: 1'11 object to the question as being outright fabrication and misrepresentation of weeks of testimony in-this case, Your Honor. THE COURT: -Objection is overruled. Answer the question, please, Doctor. I Q. Could you ask that question again, glease? 1 - I i (Court Reporter read question.) A. No, I wasn't told that. i Q. And I don't want you to if counsel's objection . is if you really I meant that none of the ?contaminated soil was removed, rest assured that a good deal . 1 . of it was removed. fou understand, I'm not representing to you thatnno contaminated soil was removed, what I'm telling you is that all the contapinated soil was not removed and what you are telling me 43 that you did not know that. HR. :Thank you. I Q. You did not kan that and you did not know that they had washed it? 3. That's right. Q. Sir, if they had, you know from your work, although you are not strictly a'tonicologist, you have toxicologists working under you, don't:you, sir? thiim a clinical toxicologist. -. i: . - a mam-1 - l7 7 i . 1 1 Q. All right, clinical toxicologist means that you 2 treat those people who come in or you have'knonledge on how 3 to treat or what the clinical science of toxic posioning is, - 4 isn't that correct? i I - A. I also evaluate the likelihood of a hazard. 6 Q. That's part of your job? 7 A. Yes. I 8 Q. It's something that you, oh, I gueSS on thegjob 9 learned how to do or learned to do after you started doing 10 those things at Ethyl CorQOration, I take it? I - 11 A. I started doin% that and teaching it back in 12 Pittsburgh back in 1957.! 13 A Q. That's Then you are indeed a 1 . a 14 toxicologist? 15 A. Yes, sir. i 16 Q. So you knew atjthe time, then, that Washinglsoil 17 doesn't remove the dioxin if there is dioxin in that soil, 18 you knew that back in didn't you, sir? 4 19 A. Ho, I didn't kfow that in '79. ??20 Q. You did not know that in '79, when did you learn 21 that, Doctor, because you know it now, don't you? 2; - a. fag, Sir.' 23 ,j . Q. When did you l?arn that you can't remoye dioxin by washing it? . . .- nil.rf :33} :3 (?the can't give you a time, I suspect some time in the 2 last four or five years. 3 Q. Well, the last ?dur or five years would put it bach ?4 in 1980 or '81? 5 A. Right. 6 Q. Have you ever learned that any washing of that soil 7 tech place at Sturgeondidn't know it until preparation fer this trial. Q. Again, just recently? I 10 A. ?Well, in the last year. '11 Q. Well, when you. iearned that the soil was washed, 4 12 was it then that you went out to investigate or explore to 13 determine whether or not washing the soil would remove the li dioxin? Did those two things, one follow the ether, sirmeaningdid ?ct; 17 Which did'you lkarn first, that the soil was washed: 18 or that dioxin can't be nemoved from the soil . 19 A. I knew that ithouldn't he removed before,I heard about the washing. 21 Q. All right. Now, when you learned'that?it ha ad been: - ,22. washed, the wash had long since ceased, didnit it, sir, .23_ .-hadn.t it, sitYes. ?r?hi; 31:24 $.32:wa g?l'l?ru 1 3.: 2 3 331.1And you knew at that point that the soil that was 2 washed still had the dioxin contaminant in it, if the dioxin 3 was in that soil to start with? 4 A. Yes. 5 Q. How, did you also have knowledge then, sirr did it 5 coincide at that time that you had the knowledge that it was 7 confirmed that it was in the soil, or had?youi_ ?8 not yet learned thatI'm still not aware that it's been confirmed'that 10 2,3,7,8 was in the soil.: 11 Q. Well, in the tank car? - 12 A. In the tank car. -L. _13" Q. Sir, you stillidon't know that it's confirned?. . . i 14. A. That's right, I assumed that it is. 15 Q. Dr. Roush, you:mean to say that up to this date, no 16 one has told you, even yet today, coming into this codrtroom, 17 that Hr. Heineman agreedlthat it was in the tank - . I: ?18 car, you still don't know that, sir? 1 i 19 A. We assumed right from the.heginning 4- 'y Q. That's not what I asked youunderstand. . _22h Q. I'm asking yonleven to this date it's not been '1 i 23 confirmed to you by the dawyers or by the xicologists or by 1? - . . chemists or anybody else that it was in that -180 brie??-iler?i-AJm . ?.5-.. I tank car in fact? Still haven?t toldlyou that? i 2 A. That's right. I 3 IQ. Doctor, the knowledge that you had that dioxin 4 can't be removed from soil by washing it then, when you had 5 that knowledge and when you learned that the soil'was washed, 6 you really didn't know at that point because you still don't 7 know that it was for sure in the tank carq is 8 that correct, sir? 9 A. (indicates affirmatively.) 10 THE COURT: Yod have to answer verbally so she can 11 get it down, Doctor. 12 A. Yes, sir. i I 13 THE coua?: Thank you. l4 Q.t Now, Doctor, you do know now that dioxin in soil 15 has a half?life of about ten years, you know that, at least, 16 don't you, sir? . 17 A. Yes. 13' Q. Okay. and youido know that dioxin in soil will to 19 some extent vayorise, you know that, too, don't you, sir? 20 A. I'm not sure it gets out of the soil. 21 Q. Well, let me j? is this an uncertainty or 2i unsureness that you have just recently arrived at or is it ?wd_ ?23 one that you knew for some time? I don't think it's been established how it gets out '131' 3.3.: ?yaporize and disappear? . i i of the soil by there are theoretical ways in which they think u: '21; .. 1 it can get out, but it hasn't been established as a fact. Q. Hasn't Dr. Wilson or Dr. Shroy or Dr. Freeman ever told you that they did terrific experimentation and they got models to prove that the TCDD in the soil would evaoorate and disappear? A. That' an ex planation of how it gets out, yes. 1 . . I Q. Well, then, they did tell you that it does I evaporate? A. They told me what the model fits the data that they have, that.doesn't mean ?hat's the7way it takes place, they, i . . haven't groved it yet. . a Q. Well then, what you are saying, you don't accept what they told you? A. No, I didn't say that. I said they have an .I 4.-.. . Ins-1?? I explanation that fits the way in which?the dioxin leaves?the I . 8011. They have a model; and mathematics enables them to take a model that fits the data quite well, that's what they have done. Q. And did you not read Dr. Shroy and Dr. Freeman's A. Yes. Q. And do they not say in that work that it will 132 '1?{out- - r. 5.) a. -.- ass@35155-3". .. In. 15: a. .14?Ql?13- ?1 3! . .1. They say volitalization will explain how it.gets i I II .1- . I Are you aware of the fact that Wilson, Shroy, and? . Freeman, wrote a letter to Soience Haqazine saying that the' Times Beach TCDD soil, the TCDD in that soil, 99 percent of it evaporated in the period of time since it spilled at Times beach? . . A. Said it's beenlremoved and can be'explainedjbyi I evaporation, yes. 9. You are aware of the fact they it does evaporate? A. They do say-itievaporates, that's right. Q. But you don't accept that as proof? A. I didn't say that. Q. 7Well, I must concede then I am confused, doiyou believe what Wilson, Shroy, and Freeman hate stated, that is evaporates?from the Soil? '5 I have read?the article. I know their explanation for it, and I know they have a model for it, but that doesn't mean they prove that it disappears by volatilization.r Q. br. Roush, I don't want to misdirect you, but that isn't what I asked you, I asked you do you believe it, sir? A. I don't knOW'whether to believe it or not. Then the answer is that you don't really believe I - I ?v . ?12183133-: st: hag. y'fr?i .- .-.1- 5-: reg-A .. melt-r. 3.9.1.- ?2 . 13:11:11)) an?. . ulBecause you don't know whether to believe it or. not? A. No, I didn't say that either. Q. I'm confused. A. I said that volatilization can take place. The fact that volatilization can take place and have a mocel to show it, doesn't mean that's the way it gets out. That's one I explanation for how it.can get out. Q. Well, what I'm asking you, subjectively, Dr. Roush, do you believe that thatls the way it gets out? A. I don't know. Q. Then I take itlyou have no belief one way or the other as to how it gets out, is that correct, sir? A. It's possible it's volatilization, I do know it comes out. Q. Doctor, I don't want to quarrel with you on this point, but I'm simply asking you do you have a believe as to how dioxin gets out of the soil, and if so, is volatilization or evaporation that beli ie? A. I don't know how to answer any better than I have, I've said that I know it comes out, and they have a mo?el that will explain how it comes out, using volatilization, and . . I '551thagtmay be the way it gets out but they haven't established 134 the way it really takes place. *2 Q. ?All,right, then I understand you correctly; they 3?"have said it, it may be true, it may not be true, you simply' i - have no belief one way or the other as to whether'what they 5 :.say is true or not? '6 A. At this stage, we can't. 1. 7 9.5 Thatis really what I was asking you, but you?d05 8 Iknow there is, notsithstanding their work,_you do knoW'that 9 there is a vapor pressure and that so evaporation doesrtake 4 10 _place, maybe not to the extent that they say that it does: I 1 I I '11" A. That's truetno? there is?a vapor pressure and that l3 evaporation does take place? 14 . A. Yes, sir, that?s true. . 15 - Q. And, while that if that occurs in a_town where M: i? the.dioxin has not be washed out of the soil, and the?sdil 17 has not been removed that has the dioxin in it, the 18 townspeOple will have some kind of exposure to that vagor, 19 won't they, sir? 20. HR. Let me object to the form of the 21 question. It aesumes no dioxin has been washed out. THE COURT: Objection overruled. Q. Could you answer that question? udYou'll have theoretical exposure, I'm-net Sure'hoy "if?and .- 2amuch it is. It can't be measuredunderstand that, Doctor, all I want to get from you is acknowledgment that there is an exposure that at least theoretically takes place? A. Yes, sir. I Q. i And, while that exposure is taking place, that dioxin, if it is in the vapor, if the dioxin is evaporating, I. that can go into the residents bodies, can't it, sir? A. they are exposed to it. Q. A Dermal contact pith the vapor or inhalation of the vapor, isn't that contact, sir??* A. Yes. Q. and, that vaporization will continue all if it does exist, it will continue all during the life of dioxin in soil, won't it, sir? A. Yes, over that ten4year?period. O. Ten?year period is the halfflife? A. I understand. Q. So it will continue beyond that ten?year period, won't it, sir? a. That's right. Q. It will continue during the next ten?year'period and next ten?year periodEand next ten?year period and the nextiten?year period, will it_not, sirIii -, . .: 3 . h. A. Yes. w: -H 2- i Q. And all during that time, that taper, during those 3 years and years will be, if it does vaporize, it will come up 4 and the people will be exposed to it, won't they, sir? 5 - A. Yes. . I 6 . Q. How, Doctor, the problems that exist with the 1 7 exposure to dioxin, you have studied those problems now at 8 Ileast since you joined Monsanto, have you not, sir? i j9 A. Yes, sir. 10 Q. Or at least since 1979, let me back up, how long - 11 have you studied the problem of human healthseffects from - 12 dioxin exposure? 13 - A. Since 1979. 14 Q. Since '79? 15 2 IA. Yes, sir. I Q. All right. Then it started with {he Sturgeon 17 spill, is that correct? 18 Except for thelpentachlorophenol problem with 19 dioxin. I 20 Q. Well, the pent achlorophenol problem was not a 21 I problem, was it, sir? 22 A. That's right. Q. And, I did use the word dioxin rather loosely, but, your knowledge as to the health effects F?i i I . L. 1 exposure commenced in '79, did it not, sir? ,2 3 Q. Now, at that tine after the Sturgeon'spill, you 4. became aware of the fact that Monsanto entered on to a 5 program to exam it's chlorinated phenols to see what dioxins 6 might be present in those chlorinated phenols? 7 A. Yes, sirAnd you, of course:_learned that was 9 found in the Santophen or'that which coelutes with 10 did you not, sir? 11 . A. ?Yes: i 12 Q. And you learnedgthat it was found in 13 2,4?dichlorophenol, did you not, sir? 14 - A. .fes, sir. 15 Q. Sir? . 15' . A. V?Yes', 17 Q. And you learned'that it was found in 18 parachlorophenol, did yoanot? '19 A. Yes, air. 20 Now, after you learned that then, it became 21 important to you in the job that you had to find out the . 22 human health effects, isn't that right, sir? A. Yes, sir. I one of theathings that you did in that respect i - . 'hw?dmiwnc 1. i . .Am rugs?sgi?very -- well, you examined first of all the rtcords 2 I that Monsanto had relative to the health effe?ts or itF ay;.hf_ f? 3 ?itro, West Virginia workers and of its Krummrich pla?t 1 4 workers, did you not, sir? . . 5 a. Yes, sir. 6 Q. Yes, and along the line of that, a Dr. Raymond 7 Suskind came in contact with you, did he not? ii?. . 3 A. Yes, SirAnd some time in '79, he asks for and-he receiyed 10 from you and Monsanto permission to do a study, a mortality 4 9 11 study for the workers erosed to the accident, isn't., .3 12 that correct? 13 A. Yes, he asked that in 1977. 14 Q. Well, you didn't respond to him until '79, you . 15 didn't agree to it until '79, isn't that correct, sir2" 16 -. A. We had difficulty in finding a smart that Q'could 17 study. 18 Q. 80, actually in 1979, you agreed to finance the 19 study to pay for the study that Suskind, the Zack-Sustind. 20 study took place of the ieceased workers associated with the '21 1949 Nitro accident, isn:t that correct, sir? 22 FA. We didn't pay tor his study on that. Q. 'Well, let me back up, you are correct. Let me back on that. Actually the study was undertaken by your tn?fnrm .L 3 a a! - ., employee Judith IZack, and the mortality study and she . LI-: incorporated and brought in Dr. Suskind, isn't that correct, sir? A. res, sir. Q. So, Dr. Zack at that time was a full?time paid empioyee of Monsanto? A. Yes. I i' i Q. Wasn't she, sir? - A. (indicates affirmatively.) Q. And she, as'a matter of fact, wrote up, prepared the original draft?article?and'took it to Dr. Suskind so that. he might comment on it and make certain revisions, isn't that correct, sir? A. Yes, siti_f?l Q. And as a matter of fact, the so?called Zack?Suskind study of the deaths associated with this accident was.in fact a Judith Zack study which Dr. Sue}: ind gave some input, isn't that correct, sir? 1 A. Yes, he did more than some. Q. Well, we can get to that later, but I've compared . 5 her draft with the final:draft. Have you done that, Dr. Roush? . A. Yes. Q. ;.Compared her first draft with-the final draft? .. .. . ?xing {?atly {aux-r195 wait. 9.. TL L-v1 1 . r. I I i ifAll the findings, the basic findings were Judith Zack's? A. Yes. Q. And all that Dr. Suskind did was to add a little prestige to the document, isn't that correct, sir? a A. No, it was his:idea'to do it in the first place, it was his idea to do the study. 3 -. I Q. But Judith Zach did the study? A. But then he defines the cohort, helped to define I couldn't have got started without goes input. Q. Dr. Roush, I don't want to quarrel withmyou,on the - -.- .. cohort'were those workers who had a history of being exposed to the accident that occurred in 1949r-9?Yes, Sir. - Q. And that is a very simple definition, isn't it, sir? h. Yes,-sir. didn't need his assistance in Q. And you-surely_ arriving at the definition of, we-want to study the death . . . . rate of?the people exposTd in that acc1dent, what you do is study the people who were exposed in that accident, thatbig problem, is it, Slr? the cohort that we were unable help2.11:2 an{hf-.4 -74 .. . s?t i A. That's a simple statement but it's difficult to . . .- . 2 find the people on whom you are going to do the study. 3 Q. Maybe difficult to find the people but again that's .4 not something Suskind did, that's something Judith Zack did? 5 A. It was his input. His input was the basis that 5 started the definition of that cohort. I 7 Q. Dr. Roush, in point of fact, Judith Zack examined 8 -the records to find out tho was exposed, Dr. Suskind didn't 9 examine those recordssent is thegnames of those that he saw back at '11 .that time that hate involved in the accident. 12 Q. or the 112: 13 A. Not all of then, no. 14' o. P??t?sir?w I 15 A. He started the definition of that cohort. 16w?: And JudithiZa?h added names? 17 A. She completed it. 18 Q. Now, insofar a; the Suskind morbidity study is -l9; concerned, that's the on; that human health effects during '20? contaminants of nanufacturing process published in 21 I the Journal of American ?edical Association in 1984, you know 22 What I'm talking about? A. Yes, sir. . $5.3?gysga: Ndw, that study was paid for by Monsanto'Lr?m?s?directly paid for A. Q. dealing A. Q. i Yes, sir.' . I And, you paid Suskind, well, you didn't pay him or did you pay him directly? Ho, we pay the pniversity. Paid the Univensityiof Cincinnati? i Yes. And the so?called Zack-Gaffey study, that too, waS' my Monsanto, wasn?t it? It was done in-the department. I Well, by Monsanto employees on Monsanto time, with Monsanto workers, correct, sir? Yes, sir. And the study on the Krummrich plant Workers in" 1979, that was publishedlin 1980, that too was paid for entirely ..-., cifr by Monsanto, wasn't it,-sir? . Which study are we talking about? The study of the Krummrich plant workers? Yes. That Dr. Suskind did in 1979? That wasn?t puhlished. Well, it was published in the sense that the were given to Monsanto? Oh, we had a report of it, yes. 3.245. 193 uk- a. i? ??Ej?mlwasn't published in any peer review? A. No, it wasn't published. Q. That study was paid for my Monsanto, wasn't it, I sir? A. Yes, sir. I Q. So, all of theistudies dealing with the dates and health of the people, th% employees of Monsanto who have been exposed to has been in fact paid for by Monsanto, isn't that-correct, sir? A. Not completely: Q. Well; all but*?he morbidity study was paid for completely by Monsanto? A. Yes. Q. And the morbidity study, all of the costs of Suskind paid for, all the examination paid for, all the I reports, he sent you a bill, you'paid it, isn?t that right? A. Yes. Q. How, Doctor sa. .sut Dr. Rolls from N.I.H.S. insisted that he_ contribute as much as we paid for that study. Q. They contributed that to the University of Cincinnati, didn't they? A. Yes, just like we did. Q.: Not just like you did because what you did, Dr. 194_ 10 11 _12 13 15 3:716 ?i?sks?-is?nmsul-T published for wide dissemination, don't you, Sir? I Suskind sent you a bill for the examination and his time and you paid that bill. didn't ytu??a I A. Yes, sir. Q. Doctor, all of the studies now strike that for a moment. You know as head of this department, you know that the Zack?Suskind study, the Zack Gaffey study, and the I Suskind morbidity study,.all of those things have been A. Yes, sir. Q. ?And you know that of the human health effects insofar as is concerned, is that those documents are nearly the only, might be one or two others, but it certainly covers more people who have been exposed to of any other study with the exception of the Seveso accident, isn't that correct, sir? i I . A. f"?"?xcept for the-stud; of Moses on-thefsame population. Q. Moses and Selikoff on the same population? a. We didn't pay for that. Q. understand that the union paid for that? i A. Yes. Q. The Eitro, the union for the workers at Nitro? A. Steal Workers Union. Q._ngorrect? i f? ?195. iiJf?rL-i-J?gu 4 A. Yes, sir. Q. -But, you were aware of, and you knew all dueing I I this time that those studies, if they were published, they would be cited and relied upon by people that are interested: in whether or not has adverse health effects, isn't that ?3 A. We did it for that purpose. a Q. Yes. Now, along that line, it is your belief, isf? it not, sir, that acute exposure to will cause Chloracne and in the long?run basis, that Chloracne is the only adverse human health effect from exposure to A. Yes. Q. Now, you don't believe, do you, Dr. Roush, that the immune system can be adversely affected in the longer run, you don't believe that cancer can be caused by exposure to in the longlrun, you don't believe that liver problems can be caused iL the long run, you don't believe that problems,can be caused, you don't believe that any problems can be caused by on the long?term basis, except Chloracne, isn't that correct? A. Based on my knowledge to date, yes. Sir? 2?3 I I A.. Based on my knowledge to date. . ?he! 1 Q. That is also the Qosition of Monsanto, isn't it? 2 A. Yes, sir. 3 Q. And you have used and you have cited those studies 4 that I have referred to as supgort for the position that you 5 and Honsanto have taken, that is that Chloracne is all the 6 bad stuff that's going to come out of exposure to I 7 isn't thaticorrect, sir? 8 A. That's what those studies would indicate. 9 Q. Yes, an& you have seen those studies of Monsanto's 10 being relied upon, and used and cited by other people who are 11 studying.health effects of you?ve seen that, . - 12 haven't you, sir? 13 a. I believe that's right. 14 Q. How, it becomes important, doesn't it, sir,?that if 15 those articles, those articles have become important to start 16 with, haven't they, sir? l? A. Yes. 13 Q. and it?s the center of, or it's the subst_nce of a 19 major part of the grinted meaical knowledge that We have in 20 this worid, if you will, as to the human health effects of 21 exyosure to isn't that correct, Br. Roush? 22 A. Yes. 23 Q. Now, all those studies have been conducted under 24 your supervision, haven't they, sir i_ A. Yes. Yes. i 2 Q. Yes. And it is your belief all during that time, 3 that Chloracne is the only adverse result from diox'n I 4 exposure, isn't that_correct, sirtne result of those not oeiore my conclusion is the only long?term effects was the result of those studies Ch gs i I 7 rather than the basis for the studies. 8 Q. You didn't have that belief then until those 9 studies were completedbasis for drawing those conclusions. 11 Q. Nos, Doctor, Iitake it since you are an intelligent - l2 - man and obviously he_had had that since you were influenced 13 to believe that from those studies and the conclusions 14 reached in those studies, you were influenced and you 15 accepted as true the statements made in those studies, didn't 15 you, sir? 17 h. That's the reason we.did the studies, so we could I 18 believe what we got out of them._ '19 - I Q. Well now, it becomes important, though, the. accurately intergret the results, 20 honesty, the ability to 21 . that becomes imgortant When you are relying on this study, 22 isn't it? I 23 A. It's true of any study. 24 Q. 0f any study that's the way it is, you have to rely 193_ - . - Hm . muff-E: UI Co?l CD upon the honesty and integrity of the 9eople that's going the work, don't you, sir? a. tee. now, in this instance, Dr. Roush, in this ihstance, Q- would you say that honsanto had a stake in re resenting and g?term saverse effect that wil? come from exposure to A. I am sure it ?duld have an influence on whit the results were going to be, but remember that in 1977 hefore we {new about the Sturgeon-syill, before there was anything i i .else, Suskind had gone to Seveso and participated as,a part? of the H.H.O. study of what are the long?term health effect- I . In! ?1 of ?ionin ans he came from saying to that study see you can do that study in that population, we did it for Seveso, so we'might know the long?term health effects for i them, not us. 3. But, that's? A. Unit a minute, At that time we ha? no knowieage of the long?term health er'eots, we were through Agent Orange, it was a oast issu?. ht that time we had no knowle?ge of what 'he erreocs were going to be and we were going to find so that the peonle in Seveso wouldn't have to worry, like we worriee. Q: Dr. Roush, dian't you know at that time that .. 199 . -.-: . . . LI.) :35 CO 17 1-3 19 Monsanto chlorinated *henois ha? been scread aha use? throughout the world with a ha1f~life of ten years. that '0 contained A. What chlorinated Qhenols? in) Q. . manufactured at ?itro, West fir 2.4-9 manufactured at Sauget. Illinois. Santonhen manufactured at Sauget. Ellinois. 2,e??icnlorophenol manufactured at Sauget. Illinois, you were aware of those facts, weren't you, air? 6 MR. HEIHEMAN: lare you telling this witness that 2.4-D contains Q. You are aware of those faces. Jeren't you? MR. HETEEMRW: Your Eontr, i object to that as outright fabrication and Carr knows it. THE COURT: Ob%ection is overrule?. A. When we talk. I don't think of 3.d.5?T as being a chlorinated ghenol. -Q. ?on't? A. a0, I think of that as ceing a distinct one.from chlorinated Qhenols. Q. Distinct what?; A. DistinCtion frow our chlo"inate? Phenols as we use them in nonsanto. But certainly is has 2.3.7.8, that's quite clear. but aon't I don't gut them all 200 Zf?'ik?ui?igi mr? together with the other chlorinated phenols. 0. Doctor, the thrust of my question is that you are aware of the fact I'm sorry, Your Honor, we can stop. THE COURT: You can finish that last question. Q. The thrust of my question is that you at Monsanto, are you aware of the fact that} ouf products that may contain had been sgread throUghout the world, and that is that products may contain which has a half-life of ten years? A. Yes. THE COURT: All right. Okay. Ladies and gentlemen,_we will end the testimony at this time and we will resume again tomorrow morning at 9:30. I would remind you as I do for any overnight break hat you are not to read, listen to, or watch anything about this case in particular, or subject matter in general. Thank you for your attention and coogeration. Court is adjourned. COURT ADJJURIZD: 201 STATE OF ILLINOIS TWENTIETH JUDICIAL CIRCUIT SS COUNTY OF ST. CLAIR I, DEBRA M. MUSIELAK, certify the foregoing to be a true and accurate transcript of the testimony and 9roceedings 1n the above-entitled cause. or Dated this day of May, 1985. 202 syuptons; correct. air? A Yes, sir. And would you tell us what it says the eysptona were. A Should I read then or just tell you? 0 Well. please read then. 1 A included and respiratory tract irritation, headache. diarinees and nausea. and a severe irritant reaction or the expoaed skin.? 0 Then it goes on to discuse the does it not. sir? would you read that next portion? a 'Arter these initial subsided, chloracne and other became evident.? Now, what it appears to is an acute expoaure with acute A Yea. As a matter or 1 reaction rollowing that autoclave tiona or irritant and thought to HR. CARR: Your Hon witness is testirying from his he should identity the source as if he's stating something THE 0b-