.- IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION CECIL SCOTT. ET AL CIVIL ACTION NO. VS. MONSANTO COMPANY SEPTEMBER 2, 1987 VOLUME BEFORE THE HONORABLE JOE J. FISHER UNITED STATES DISTRICT JUDGE, AND A JURY REPORTED BY: C. FRANK MCMILLAN FEDERAL COURT REPORTING CO. P. 0. BOX 2664 BEAUMONT. TEXAS 77006 (409) 839-2518 . ? ATTORNEYS FOR PLAINTIFFS: MR. DAVID M. LACEY MR. MICHAEL A. POHL MS. SUSAN BAKER GILPIN, POHL BENNETT 1300 POST OAK BOULEVARD HOUSTON. TEXAS 77056 MR. THOMAS HENDERSON MR. ANTONIO PYLE HENDERSON GOLDBERG 1030 FIFTH AVENUE PITTSBURGH, 15219 MR. BENTON MUSSLEWHITE 609 FANNIN. SUITE 517 HOUSTON, TEXAS 77002 ATTORNEYS FOR DEFENDANT: MR. ROBERT A. HALL MR. ROBERT A. JONES MR. JONATHAN SHOEBOTHAM WOODARD, HALL PRIMM 4700 TEXAS COMMERCE TOWER HOUSTON, TEXAS 77002 MR. TANNER T. HUNT. JR. MS. CHERYL D. OLESEN MR. WALTER CRAWFORD MR. MARK FREEMAN WELLS, PEYTON. BEARD, GREENBERG. HUNT CRAWFORD P. 0. BOX 3708 BEAUMONT. TEXAS 77056 ALSO PRESENT: MR. WILLIAM PAPAGEORGE. CORPORATE REPRESENTATIVE FOR THE MONSANTO CHEMICAL COMPANY. b. INDEX WITNESS: DR. PAUL L. WRIGHT SHOWING OF VIDEO DEPOSITION READING FROM VIDEO DEPOSITION WITNESS: DR. WARD R. RICHTER SHOWING OF VIDEO DEPOSITION READING FROM VIDEO DEPOSITION PAGE 1983 1992 PAGE 2032 2047 1978 of Dr. George J. Levisksas. THE COURT: Who do you have next? MR. JONES: Your Honor, the defendant will make its offer in its case in chief. THE COURT: Thank you. Who do you have next? MR. POHL: With that, Your Honor, at this time we call Dr. Paul L. Wright by video deposition. THE COURT: Do you have additional objections to make or do you make the same objections? MR. JONES: Yes, Your Honor, we do. Yesterday you stated, Your Honor, that if we had additional objections other than those running objections to make them at the appropriate time and this is one of those times, Your Honor. We would object to the testimony of Paul Wright to the extent that he seeks or seeks to invoke his Fifth Amendment rights under the constitution of the United States on the ground that such testimony is irrelevant, it's immaterial, it's inflammatory and its prejudice outweighs its 19/9 probative value. Monsanto specifically objects for the reason that there is no adverse inference that can be drawn from such invocation of the Fifth Amendment, rights to the Defendant Monsanto. And, therefore, the testimony is irrelevant. No adverse inference can be drawn for a couple of reasons, Your Honor. Number one,? the witness was not an employee of Monsanto at the time of the deposition. Monsanto did not control or influence him or could influence him in any way. He was represented by counsel at the deposition. And, in fact, I as counsel for Monsanto Company specifically objected to his taking the Fifth Amendment and requested that he answer the questions. THE COURT: Let's not argue your objections. Just make them. MR. JONES: All right, Your Honor. That's the first objection, Your Honor. The second objection that we have to the testimony is that there is no substantial independent evidence to support 1980 the inference which the plaintiffs seek to draw; that being, that the invocation of the Fifth Amendment by Paul Wright, which they are seeking to draw, is not that he may have committed a crime but the fact that Monsanto knew that he committed a crime or alleged or knew of the alleged deficiencies of Your Honor, since there is no independent corroborating evidence on that point under the authority of the United States versus James, that testimony should be excluded. But even if they did have corroborating evidence, Your Honor, they have got to also show that the inference that they draw is more probable than any other inference and that they haven't done. We would also object to the testimony on the ground that Paul Wright's knowledge, whatever it may be, cannot be imputed to Monsanto because if, in fact, there were deficiencies at IBT and if, in fact, he knew of those deficiencies, he didn't tell them to Monsanto. And under case law, Your Honor, if an employee acts adverse to the 1981?1 interest of its employer -- THE COURT: Let's not argue. MR. JONES: Okay. Your Honor. Your Honor, we'd also in that case, what we would like to do is just refer to the Court the brief that we filed in support of the motion in limine which contains many of these objections. And we would request that the deposition testimony be excluded. MS. BAKER: Could I be heard just for the record? THE COURT: Yes. MS. BAKER: And rely for our part on our briefs filed with the Court and on the fact that a lot of cases represented by United States versus James has been overruled by the United States Supreme Court. Thank you. THE COURT: The Court overrules the additional objections as well as the original objections and gives counsel a running objection to all of these matters and deny the request. All right. Let's proceed. MR. JONES: Your Honor, may I state one 1982 additional thing and then we can go on with the deposition. May we request an instruction from the Court to the jury that no adverse inference may be drawn against Monsanto Company as a result of this testimony for the reasons that we stated earlier? MR. POHL: Your Honor, I would like to be heard on that. THE COURT: Yes. MR. POHL: Your Honor, I don't want to engage in argument, but the fact, the evidence already shows from Monsanto's witnesses that Dr. Wright was hired back by Monsanto at Monsanto's request. He came back in a high management position. that after he came back, he continued to coordinate with IBT. We have read to the jury this very morning documents that Paul Wright had knowledge of and even Manual Rhame. one of Monsanto's current employees, testified that he personally told Dr. Wright ab0ut these deficiencies that we're going to detail a little bit later in this case. 1983 THE COURT: All right. The Court will 'instruct the jury that this testimony is being offered for the purpose of showing the knowledge, if any, on the part of Monsanto. And Monsanto, being a corporation, of course, it acts through agents, servants and employees. And the jury may give such circumstantial weight or value to the evidence as they consider it is entitled to. Now, on the question of knowledge of Monsanto. All right. You may proceed. MR. POHL: We are ready to proceed, Your Honor. THE COURT: All right. (WHEREUPON THE FOLLOWING PORTIONS OF THE VIDEO DEPOSITION WERE SHOWN TO THE JURY.) Raise your right hand. Do you solemnly swear that the testimony you are about to give will be the truth, the whole truth and nothing but the truth so help you God? I do. Dr. Wright, my name is Mike Pohl. As you 1984 have just heard, I'm one of the attorneys for the plaintiffs: that is, the parties who have brought this civil lawsuit. We are here today to ask you a number of questions. Before we start those questions. let me say first that the plaintiffs are calling you as an adverse witness in that you were employed by both by IBT and Monsanto. Let me begin your deposition by asking you to state for the Court and jury your full name. I am Paul Lee Wright. If at any time during the course of the deposition you don't understand one of my questions because I speak too softly. because I'm not careful in the way I worded the question, because it is somehow confusing to you or because there is some distraction in the room. I would appreciate your stopping me and asking me to repeat the question or to rephrase the question so that we can be very clear that you understand each and every question. Can we have that agreement? I will do my best. And Wright. that this deposition, even though we are here in rather I '1985 informal proceedings, can be used at the time of trial: that is, we can show this videotape or read the question and answers or any part thereof to the Court and jury? That's my understanding. And you understand that you have just been sworn by the court reporter? Yes, I do. And you understand that that means that you have been sworn to tell the truth and the whole truth just as if you were sworn on the witness stand in the courtroom before the jury? I understand that. And in-response to each of my questions, I would like you to give me the full and complete and truthful answer to each question, okay? All right. And in what year did you obtain your In 1961. When were you first employed by Monsanto? In 1965. When were you first employed by Industrial Biotest Laboratories. Inc.? In 1971. When you were employed by IBT, what was your 1980 job title? I believe it was manager of toxicology. And when did your employment with IBT terminate? In November of 1972. Did you then return to employment with Monsanto? Yes, I did. And what was the first day that you recommenced your employment with Monsanto? I believe it was November 1, 1972. What was your job title at Monsanto when you became re-employed by Monsanto? It, again. was manager of toxicology. And you worked here in St. Louis in the offices of Monsanto? Yes, I did. You were criminally indicted; is that correct? That's correct. All right. And do you recall when you were indicted? No. I don't. I believe it was in 1982. After the indictment_was handed down, you ultimately went through a criminal trial, did you AUJB So, in the process of diagnosing a slide. a pathologist is comparing the tissue against pictures that are retained. "So.r those of us who are good pathologist have very good skills of retaining pictures of what we have seen previously. And I think you indicated a moment ago that you could recall at this point rather vividly what you saw under the microscope when you looked at Dr. Kimbrough's slides? Yes. First of all, so the jury will have some understanding of this, in order to make your own independent determination as to whether or not Dr. Kimbrough's slides displayed cancer, what were you looking for in terms of the shape of the cells. the color, or anything else that might appear to the naked under the microscope? There are series of factors that are involved in making that diagnosis. The lesions that were found in the liver were focal areas in which the liver cells were enlarged and some of the liver cells were dividing and producing a nodule or a little focal area of abnormal cells that were surrounded by normal liver tissue. And 1a .78 1987 _7 not? Yes, I did. And did you have an attorney representing you in that criminal trial? Yes, I did. What was that lawyer's name? The lead lawyer was Mr. James Robertson of the Wilmer, CUtler Pickering firm. How many other attorneys, if any, assisted in your representation during the course of those criminal proceedings? There were two. Were all three of those lawyers with the Wilmer, Cutler Pickering law firm? Yes, they were, as far as I know. And you understood that law firm to be out of Washington, Yes, it was. The criminal trial took place in Chicago, did it not? Yes, it did. Did you also have local attorneys representing you in Chicago? Well, there was a firm Hapfin Hapfin and apparently was involved in the firm but they did 1988 not represent me personally, as far as I know. How long did the trialilast? I believe about seven months. And you were tried along with Dr. Keplinger and a man named James Plant? That's correct. And a Dr. Joe Keplinger did not complete the trial because of physical illness; is that correct? That's correct. And so far as you understand, the trial as to Dr. Keplinger has never been completed; is that correct? I have no knowledge. At the conclusion of the trial, were you convicted? Yes, I was. And were you sentenced by the judge? Yes, I was. Did you take an appeal from that conviction? Yes, I did. 'And was the conviction affirmed? Yes, it was. I want to show you a document which I have obtained from the district courts of Chicago 1989 which is your indictment and ask you first, if you have ever before looked at the grand jury's indictment as it pertains to you, have you? (Whereupon the video deposition was interrupted.) THE COURT: Do you need to go into this much detail? (Video resumed.) A . Yes, I have seen the indictment. I don't know the document you have. (Whereupon the video deposition was interrupted.) THE COURT: Is it necessary to go into this much detail? MR. MUSSLEWHITE: We can stop, Your Honor -- THE COURT: Can you offer the rest of it by MR. MUSSLEWHITE: Just want to go over one question, Your Honor. MR. POHL: If we can have about two more minutes then we are going to offer it 1990 by THE COURT: All right. Make it roll then. (Video deposition resumed.) Let me show this to you and your lawyer. This is a certified copy which we obtained from the United States District, the Northern District of Illinois and pass it to you. Take a moment to look at it and just identify it for the record as to whether or not it's the indictment? Does that appear to be the indictment? It appears to be. but I cannot am not totally certain that that's the document at this point in time. But to the best of your knowledge today. that appears to you to be a true and accurate copy of the indictment that you were faced with? That is my assumption. I want to ask you a few questions. Dr. Wright. about the attorneys' fees associated with your criminal trial -- [Whereupon the video deposition was interrupted.) THE COURT: Let's don't go.back into 1991 I that. Let's don't go into the attorney fees. Just go into details that are just, thread bare, you've just worn it thread bare. Get to the testimony that you want to ask him about concerning his test, I suppose and -- see if you can do that. MR. MUSSLEWHITE: Can you do it to the first question on there -- okay. (Video deposition resumed.) There was a manager of toxicology for IBT and also there is a manager for toxicology for Monsanto at a later point in time. You knew that the United States Government and possibly others might receive copies of the conclusions of the studies that were being conducted at IBT, on Monsanto's Aroclor products, did you not? On my attorney's advice, I hereby invoke the right secured to me by the Fifth and Fourteenth Amendments to the U.S. Constitution and respectively refuse to answer that question on the grounds that any information -- (Whereupon the video deposition was concluded.) 1992 THE COURT: What he the necessity of offering this? MR. MUSSLEWHITE: Your HonorIr there's about only eight questions that we have that go into the THE COURT: Well, let's get to the eight questions then. MR. MUSSLEWHITE: We will stop that and read them. THE COURT: All right. MR. POHL: If you will turn to Page 31, line 19. I will ask the question. You can give the answer. MR. MUSSLEWHITE: Okay. (Reading from video deposition) Dr. Wright, is it true that the result of IBT's high mortality rate in connection with Monsanto's Aroclor study and the practice of substituting animals during the course of such studies cause the toxic effects of Monsanto's Aroclor studies to be seriously understated? A On my attorney's advice, I hereby invoke the rights secured to me by the Fifth and Fourteenth Amendments to the U.S. Constitution and 1993 respectfully refuse to answer that question on the grounds that any information I give in response may tend to incriminate me. (End of reading) MR. POHL: Page 33, line 12. (Reading from video deposition) 0 Dr. Wright, is it true that the reports of the conclusions reached in connection with the IBT Aroclor studies were altered several times at Monsanto's request? On my attorney's advice I hereby invoke the rights secured to me by the Fifth and the (End of reading) THE COURT: If he is going to invoke the Fifth Amendment, all of these will -- there's no need of offering them. MR. MUSSLEWHITE: Your Honor, our purposeshow the questions -- the information we tried to get from this witness and if you will I'll we'll stop reading the Fifth Amendment and just read the questions. 1994 THE COURT: Did you not get the information from other witnesses? MR. POHL: Your Honor, this is the witness that has the most direct knowledge both from the point of View of IBT and Monsanto. THE COURT: Don't you think the Court knows that? It's absolutely a waste of time to ask a question and then to have him invoke his Fifth Amendment right. That doesn't add anything to the testimony. MR. POHL: We want to show the jury, Your Honor, that we attempted to go to the one person from both Monsanto and IBT who had the most -- THE COURT: The Court is reversing its rulings. We will sustain the defendant's objection and we will grant his request to suppress this deposition of Mr. Wright's. All right. MR. JONES: Your Honor, in light of the Court's recent ruling here, we would request that the jury be instructed to disregard the previous testimony. THE COURT: Yes, the Court will request the jury to disregard apy portion of Mr. Wright's testimony that has been read. All right. MR. POHL: Your Honor, at this time we would -- THE COURT: Do not give it any consideration or affect to Dr. Wright's deposition in regard to your deliberation as a jury in this case. Do not give it any affect or consideration in your rulings. All right. MR. POHL: Your Honor.r we would read from the deposition and offer a summary of Dan R. Dishop taken June 29. 1987. And I will read a summary and there are some questions and answers and I would ask Mr. Musslewhite to respond to the questions. THE COURT: All right. What witness is this? MR. MUSSLEWHITE: This is the last one that I mentioned to Your Honor of the-last witness we have that was Monsanto's -- public relations man. [It's a short offer. THE COURT: You may proceed. MR. POHL: Your Honor, in order to show 1995 2029 you worked with at Monsanto'back in the mid-70's would provide you information that you asked for? Yes. And was there ever an occasion when you went to the technical people at Monsanto and asked them for a question concerning PCBs that they didn't provide you with the information that you asked for? No, never. Did you find that the technical people that you worked with concerning PCBs were cooperative with you? Yes. And did you find that the technical people that you worked with at Monsanto back in the mid-70's provided you with accurate information? To my knowledge, yes. (End of reading) MR. SHOEBOTHAM: That concludes our offer. Your Honor. THE COURT: All right. What does the plaintiff have next? MR. POHL: Your Honor, at this time we would summarize from the deposition of Dr. 2030 Ward R. Richter, an independent pathologist from the University of Chicago. We would show, approximately, 20 minutes, correct, of his video and then we would conclude with an offer of some question and answers. And I would ask Mr. Musslewhite to read the question and answers if he would take the stand. THE COURT: Is it necessary to make this offer? Is it not repetitious? MR. MUSSLEWHITE: No, sir, it's not, Your Honor. This is not a Monsanto witness. This is a totally independent witness that verified the studies on carcinogens. MR. POHL: This not an employee, Your Honor. THE COURT: You have already offered some four or five doctors. What does this doctor purport to testify to? HR. POHL: This doctor accompanied Dr. Levinsksas to Washington, D.C. to look at certain slides of Dr. Kimbrough. He contradicts Dr. Levins?sas' testimony. He says that he personally showed Dr. Levinsksas cancer through the microscope. 2031 He testifies that he warned Monsanto about the cancerous nature of the product. He concludes that back then and now it's cancer-causing and so forth. THE COURT: All right. How long will it take to -- MR. POHL: The video offer is 20 minutes. I can summarize the first part with his background in two or three minutes and then we would offer -- I have it listed. I don't know how long it would take to read it, but some question and answers from his deposition and we will try to be as brief as possible, Your Honor. -THE COURT: All right. Let's proceed. MR. POHL: If you are ready on the video, I will do a short summary to start with -- Ward R. Richter, married, three children; son, Robert: son, David: daughter, Pamela. He is 57 years of age. He is a veterinary pathologist. He has been a professor at the University of Chicago and other places. He is in charge of all toxicology for Chevron Company. He has received quite a 2032 number of awards. He has published quite a number of papers. We won't detail what any' of them are. He is familiar with the proper procedures for running a toxicology test such as that that was conducted on the Aroclor product for Monsanto at IBT. He looked at the slides at IBT on the Monsanto test and studied them. He also looked at Dr. Kimbrough's slides and studied them. If we could start the video. (WHEREUPON THE FOLLOWING PORTIONS OF THE VIDEO DEPOSITION WERE SHOWN TO THE JURY.) You traveled to Washington, D.C. to look at Dr. Renate Kimbrough's liver slides. Had you already looked at certain slides prepared by IBT in connection with its Aroclor studies? I believe I, to the best of my knowledge, had looked at a study of IBT slides on Aroclor the 19 about 1971. Why was it that IBT and Dr. Levinsksas wanted you to review Dr. Kimbrough's slides? in 2033 What were they concerned about? The results of the two studies were different in that Dr. Kimbrough's study demonstrated a large number of animals that had liver tumors, both benign tumors and malignant tumors and the IBT results were less severe than that. And by "malignant liver tumors." do you mean cancerous? Yes. carcinomas. Carcinomas. And so that the jury will understand. when you talk about carcinomas. that means the same thing as cancer. doesn't it? Yes. Who was it that was concerned about Dr. Kimbrough's finding of cancer in the livers of the rats to whom she had fed Aroclor products? I don't have direct knowledge of who all was concerned. Dr. Levinsksas was concerned. That's the reason I was asked to go look at the slides. Did he indicate to you any expectations that he had with regard to either your or Dr. Gordon's review of Dr. Kimbrough's slides? At that time during our discussions on the way to Washington. he was making the assumption that Dr. Kimbrough's examinations were not valid. And in fairness, I had the same impression. I did not know Dr. Kimbrough very well at the time and she was not trained directly as a veterinary pathologist and both of us had some doubts as to whether she had made a qualified analysis of the slides. And, so, when you went to Washington, D.C. to review Dr. Kimbrough's slides, you and Dr. Levinsksas at least had some doubt as to the validity of her findings? That's correct. And your mind at the time was that more likely than not she possibly overstated the adverse reaction of rodents to the Aroclor products? That's?correct. In summary then, what waslyour mind set, Dr. Richter, at the time that you and Dr. Levinsksas were traveling to Washington, D.C. to review Dr. Kimbrough's slides? I expected to find that she had overstated the case and that I would disagree with at least a number of her diagnoses, Where physically did you go to commence your I 2055 -review of Dr. Kimbrough's slides? It was on the campus of the_National Cancer Insitute. And that's in Washington, Yes. And you went to whose office? Dr. Squire's laboratory. That's Dr. Robert Squire? Yes. The gentleman you described earlier? Yes. Dr. Squire was physically present there? That's correct. And tell us how the room and slides were arranged that you and the others could conduct your review? They have a microscope out for us with a table that we could sit down at and the slides were in slide boxes out in order on a laboratory bench such that they could quickly find specific animals and specific slides for us to look at. Did they in any way try to prevent you from looking at any slides that you wanted to look at? No. We had access to all of the slides. Were Drs. Kimbrough and Squire there when 2036 you looked at the slides? Yes, they were. Did you look at every slide, or did you just select random slides that you wanted to review? We did do two things as best as I can recall. I looked at all of the slides that were diagnosed as carcinoma, and I believe that was 26 animals. I looked at representative samples of neoplastic nodules and I looked at representative samples of lesser degrees of toxicity that were selected by Dr. Squire and Dr. Kimbrough to show us as examples. And then I randomly selected other animals to look at that were not selected by them. And I don't remember how many animals I looked at totally. Were you satisfied that your examination of the Kimbrough slides were complete and thorough? Yes. It was thorough in it was complete in relationship to the animals that had a diagnosis of carcinoma. Did either Dr. Kimbrough or Dr. Squire try to suggest to you the results that you should find upon your review of their slides? No. We had a preliminary discussion of the terminology that they were using in diagnosng the .- 2037 tumors and some preliminary discussions of what criteria we each used for our diagnostic terms. And there was a difference in diagnostic terms between the two groups. Whose terminology was more conservative: yours or that of Dr. Kimbrough and Dr. Squire? The terminology wasn't more or less conservative. The terminology was -- I was using what had been the standard classical terminology until that time: and at that period of time, Dr. Squire was evolving and ultimately published a new set of diagnostic terms to use for rat liver tumors that subsequently was adopted by most pathologists. In addition to your looking at all of the slides you just told the Court and jury about, did Dr. Gordon look at some or all of those same slides? He -- to the best of my recollection, he looked at every slide that I looked at. Did Dr. Levinsksas look at any of the slides? He looked at a few, while Dr. Levinsksas is not a pathologist but Dr? Gordon and I selected slides that illustrated various points, JUJB particularly the slides of tumors that we felt were carcinomas and showed Dr. Levinsksas the structures that we were referring to and the reasons why we were calling them carcinomas. Can you remember in your mind, Doctor, what you saw under the microscope when you looked Dr. Kimbrough's slides? Yes. It stands out rather vividly. Pathologists -- Well, let me stop you there. As part of your training as a pathologist and part of your professional development. have you been required to develop a skill for recalling what you have seen in potentially different studies? Yes. That's what I was really going to do as a preliminary statement to the answer to that. Pathologists. when they are diagnosing tissues and tumors.r are looking at slides of cells, whether it's liver or muscle or whatever: and we are looking at the structure and the shape and the color and arrangement of those cells in comparing that to normals and in comparing that to everything else that we had seen and learned in our career. the process of diagnosing a slide, a pathologist is comparing the tissue against pictures that are retained. So, those of us who are good pathologist have very good skills of retaining pictures of what we have seen previously. And I think you indicated a moment ago that you could recall at this point rather vividly what you saw under the microsc0pe when you looked at Dr. Kimbrough's slides? Yes. First of all, so the jury will have some understanding of this, in order to make your own independent determination as to whether or not Dr. Kimbrough's slides displayed cancer, what were you looking for in terms of the shape of the cells, the color, or anything else that might appear to the naked under the microscope? There are series of factors that are involved in making that diagnosis. The lesions that were found in the liver were focal areas in which the liver cells were enlarged and some of the liver cells were dividing and producing a nodule or a little focal_area of abnormal cells that were surrounded by normal liver tissue. And ZUQU depending on the severity of the lesion, this might be a small focus with just a few abnormal cells or a large focus with a lot of abnormal cells. Benign tumors are (inaudible) like that that are large and they compress the surrounding liver tissue and the cells within that focus are fairly uniform in their structure and shape even though they are abnormal. Carcinomas are characterized by the fact that there is a great deal of variation in those cells, both in their size and their color, in their shape and their arrangement. This is because they are losing some of the controls that control their growth patterns, and they are able to grow more freely. And so, it gives them the characteristic to Spread throughout the body. So, when you are looking to make a diagnosis of carcinoma, you are looking for variations in cell size and shape and variations in cell size and color. There are other characteristics where inside of a benign tumor is a small focus of malignant cells that may develop that are very small and very dark blue indicating that they have developed a difficult series of growth 2041 characteristics. The carcinomas, as they become more severe, will loss all organizational structure to them; and that's sort of a simplistic review of what you look for to make a determination of carcinoma. But there are a series of factors that are present to make that decision. And Dr. Richter, did you have an understanding of whether or not Dr. Kimbrough's test animals had been fed the same Monsanto Aroclor product as the IBT test animals? I have no direct knowledge of it but I was -- the information that I was presented with indicated that. In connection with your review, you were presented with information which would lead you to conclude that both the IBT and the Kimbrough test animals were fed the same Monsanto Aroclor product? Yes. Dr. Richter, when you reviewed the slides of Dr. Renate Kimbrough, did you find cancer? Yes, I did. You are convinced of that today? Yes, I am. ?2042 And did you communicate that to Dr. Levinsksas at the time? Yes, I did. And did Dr. Gordon look at those same slides? Yes, he did. Did he also find cancer? Yes, he did. Did he, in your presence, communicate that to Dr. Levinsksas? Yes; he did. When you left Dr. Kimbrough's and Dr. Squire's offices, where did you travel? I traveled back to -- well, to the airport and then flew back to Chicago. Did you fly on the plane with Dr. Levinsksas?' Yes, I did. And did you travel in a car from Dr. Kimbrough's and Dr. Squire's office with Dr. Levinsksas? Yes, I did. Did he act any differently on your return trip from the way he did_on the way out? He was very upset and didn't speak to me for .IJ the rest of the trip. So, the entire time, from the time you left WashingtonIr D.C., drove by car to the airport and flew to Chicago, Dr. Levinsksas would not speak to you? That's correct. Okay. While you were reviewing the slides at the offices of the National Cancer Insitute, how long did you spend there? As best as I can recall, it was three to four hours. Was that sufficient time in order to conduct a thorough and professional review of Dr. Kimbrough's slides? Yes. Let me ask you to compare for the Court and jury what you saw when you looked at Dr. Kimbrough's slides and what you saw when you looked at the slides. First, in looking at the IBT slides, did you find lesions in the livers of the animals to whom the Aroclor products had been fed? Yes, I did find lesions. And would you describe the how would you describe the toxic effect on the livers of the animals that you saw? The changes that were present were toxic injury. There was necrosis and cellular degeneration. along with (inaudible) and hyperplasia. And most of these changes were focal so that the hyperplasia was focal or nodular hyperplasia. And in two of the animals, I diagnosed benign tumor, hepatoma. That's in the IBT animals? Yes. When you diagnosed benign tumors and other (WHEREUPON THE VIDEO DEPOSITION WAS INTERRUPTED) THE COURT: Let's finish the rest of it with 05A, please. MR. POHL: Your Honor, that is fine. The only point I would make is that shortly in the deposition, he draws a chart. Maybe I can just explain the chart. THE COURT: All right. MR. POHL: He gets up on a board and he draws for the jury a comparison of what IBT found and what Kimbrough found and explains why -- THE COURT: We will permit you to show that. MR. POHL: Could you pull out the chart from the back of the original -- THE COURT: We will permit the videotape to show it. MR. POHL: Oh, you will? THE COURT: Yes, if it's eminent. MR. POHL: I can just explain it because it's in a couple of different parts. When he gets up, when he stands up on a board, and it would take a while for him to find it on the video, I'm afraid. We would just be sitting here-waiting. THE COURT: All right. MR. POHL: In connection with that, Your Honor, there is a chart which is drawn by the witness in which he shows the effect of the various tests, both by IBT and by Dr. Kimbrough. The point which he makes is that in one end of the spectrum the result is what is called normal. At the other end of the spectrum at the other end of the Spectrum is cancer. 2046 He testifies that he looked at the original IBT slides and the Kimbrough slides and testified that the Kimbrough slides showed cancer. It was at the far extreme of the spectrum. He testified that the original IBT studies, before they were ever even changed by Dr. Levinsksas, purported to state that the results were normal. After Dr. Kimbrough came out with the first study, they changed it to fall somewhere in the middle to show tumorigenic. He says that both of those were incorrect. It was always a severe toxic effect. which was in the latter category and that the original characterization of "normal" misstated the results and the subsequent characterization of tumorigenic" also misstated the results by understating them. We would offer that in evidence and it is marked as Richter Exhibit 1. We will assign it the next number in this trial, which is 3679. Your Honor, we would offer that 2041/ document. THE COURT: All right. MR. POHL: Your Honor, with regard to the deposition, we would offer some question and answers. And I'm just going to flip over some of the pages and not offer it in order to shorten it. The witness says on Pages 66 and 67 that he concurs with the deposition portion of Dr. Roush. a Monsanto employee that was read here in the courtroom the other day where Dr. Roush said that he looked at the IBT slides and when he saw them, they showed severe liver damage. And Dr. Richter says that when he saw the IBT slides, they also showed severe liver damage. And that is what he draws in approximately the right?hand quadrant of the chart. Dr. Richter goes on to state let me. turn to Page 75 and start with line 17. read the question. (Reading from video deposition) Now, after you reviewed Dr. Kimbrough's slides and told Dr. Levinsksas that you concurred '2048 in her finding of cancer, when did you next meet with any representatives of Monsanto in connection with either the IBT rodent study or the Kimbrough rodent study? I had very little contact with Monsanto after that period of time. But I did have a meeting at some point after Dr. Pour issued his report which was issued in 1975. I had a meeting at IBT with a group of representatives of Monsanto. And were these lawyers from Monsanto? I do not know if they were lawyers. They were not scientists. so What did you say: you participated in a meeting at the offices of Was that in Yes. Who else was in attendance besides you and the representatives of Monsanto? I can't recall totally everyone that was there but Dr. Calandra was there. Dr. Gordon was there and I believe an IBT attorney was there. And how many representatives were present for Monsanto? As best I can recall, there were four. Zuqs Did anyone say anything during the?meeting ?that would give you an understanding or an idea of what type of representatives Monsanto had sent to this meeting? (End of reading) MR. POHL: Page 77. line 11. MR. MUSSLEWHITE: 0h. excuse me. I didn't know you had skipped. (Reading from video deposition) A I got the impression and this is a long time ago so I can't remember all of the details that they were not technical people. They were not scientists or toxicologists. These were either business representatives or attorneys looking at the issue of the various tests that had been done. And what was the purpose of this meeting, Dr. Richter? A The purpose that I saw. I was not given an exact purpose. it was a confrontational meeting. The group from Monsanto was unhappy with IBT and were challenging the procedures that had gone on. And there was concern over differences in 2050 findings from Kimbrough's report and IBT's report. And the meeting was, I assume and got the impression, was called to look at the reasons for these differences. So, the meeting concerned the variances between Dr. Kimbrough's findings of cancer and IBT's report; is that correct? Yes. And the representatives of Monsanto appeared to be somewhat confrontational? Yes. What was their specific concern? I am not certain what their specific concern was because they looked at it looked investigational meeting to find out why there was a difference and they were looking at all the possibilities. And did they ask you questions? Yes. they did. And did you and did they ask you whether or not you still agreed with Dr. Kimbrough's findings of cancer? Yes, they did. And did you and did they ask you whether or not you thought PCBs were a carcinogen? PII 2051 I don't recall whether they asked it that specifically. And if they had of asked it, what would you have told them? I would have told them that I thoughtlit was carcinogenic. And did they ask you anything else other than questions pertaining to the differences between the IBT Aroclor study and the Kimbrough Aroclor study? I can't recall the exact questions but there were discussions of various IBT reports and changes that were made in the reports and the language that was in the reports. They asked me if I knew Paul Wright, asked me how much I interacted with him and various probing questions to find out what my involvement in the study was. Was there some concern expressed by the business people and/or lawyers for Monsanto about changes that were to be made or had been made in connection with IBT's Aroclor studies? I don't think concern is a correct word. They were investigating, looking at, gathering facts at what what had been done. and the 2052 reasons for it. This was after Dr. Pour had come out with his report wherein he indicated that the IBT studies did not demonstrate carcinogenicity? Yes. And by the time that you had participated in this meeting with four peOple from Monsanto at IBT's headquarters, had you had a chance to read Dr. Pour's report? No. I believe I was shown his report at that meeting. And were you asked at that meeting whether you agreed or disagreed with Dr. Pour's report? I don't specifically recall that. You have no recollection one way or the other? I don't have, no. Did they give you a copy of Dr. Pour's report to take with you when you left the meeting? As best I can recall, I did not get a copy of it to take with me. They just showed you a copy of it and they took it back? I Yes . I 2053 How long did the meeting last? A It was three to four hours. (End of reading) MR. POHL: I will skip over some of the remainder about that meeting. And in summary, moving forward, the witness testifies that his next meeting with Monsanto occurred in December of 1986 where he was flown to St. Louis, Missouri by Monsanto and he was questioned by attorneys. and others from Monsanto, names of all of which he can't remember regarding the IBT studies, changes in the studies and other facts that we talked about in the trial today. The witness also testifies that his signature appeared on the original IBT Aroclor reports, but after the reports were changed the changes were made and a Xerox copy of his signature was used. It is his signature but he was never asked to resign the documents. He doesn't know who used his signature. The witness next talks about errors in 2054_?7 the numbering of the rodents. I asked the witness questions about the mixing of animals, about the substitution of animals and about the letter which has been identified in evidence as 3678 wherein Dr. Levinsksas refers to the fact that a number of the animals were used apparently in different study groups. A number of the animals appeared, at one time to be a male and some time later in the test reappeared as a female and things of that nature. The witness testifies in connection with that -- if you would like, I will be happy to read the question and answer. MR. JONES: Your Honor, I believe we are getting in pure argument at this point and I would object to that. MR. POHL: I will be happy to read it. It's not that long. If you will turn, Mr. Musslewhite to Page 103. MR. MUSSLEWHITE: All right. MR. POHL: Line 23. MR. MUSSLEWHITE: All right. 9:1! 2055 1 (Reading from video deposition) 2 The letter indicates that some of the' 3 animals that were identified as control male rats 4 were also later identified in the Aroclor report 5 as having been test animals; is that correct? 6 A That is what this states. 7 And if you look at the second page, you can 8 see that some of the same animals like Animal 46, 9 47. 48 and several others were shown on the first 10 page to have been male rats, on the second page 11 of the letter to have been female rats; is that 12 correct? . 13 A State that again. 14 Sure. If you will look on the first page. 15 you will see. for example. it says male rats one 16 and two. 17 A Yes. 18 And that, let's focus on the first page 19 first. male rats one and two are first to be 20 shown as a control animal; is that correct? 21 A Yes. 22 What is a control animal in regards to a 23 rodent study? 24 A It's an animal that has not been treated 25 with the test compound. I - 2056 Under normal testing procedures are control animals to be comingled with test animals? No. If you go on across to the right of the first page you see that Dr. Levinsksas is noting that those control animals were later shown to have been test animals in both the one parts per million and 10 parts per million test categories; is that correct? Is it correct? Yes, I can see that. And the point that I'm getting to. Dr. Richter, is that if you received a letter on a study which you were supervising and it showed that there was this type of discrepancy with regard to the rodents used in the study. what would that -- what message would that communicate to you? It would raise concern about the study. There are possible explanations for this. but it would raise enough concern if this were a study that I was supervising to go back in detail to find out if these were typos. what the raw data looked like and whether that supported the findings as presented here. But it would raise concern. 91203/ What kind of concern? How serious would that concern be? A That's a relative sort of thing, but in my languager a serious concern. Would you rely on the results of a test that had such possible errors without first making a thorough and complete investigation? (End of reading) MR. POHL: Page 107, line 15. (Reading from video deposition) A No. Now. you mentioned something earlier in the deposition. I will try to be as brief about this as possible. That you indicated that you and Dr. Squire look?d at Dr. Kimbrough's liver slides; is that correct? A Yes. And later on that you became aware that Dr. Pour had also looked at those, looked at the IBT liver slides; is that correct? A Yes. And'that Dr. Pour disagreed with your interpretation of the Kimbrough slides? 2038 A Yes. Let me represent to you that Monsanto Document 058195 and subsequent pages. that there is a report by Dr. Pete Pour which refers to his review of the Dr. Renate Kimbrough study on Aroclor products. Okay? A Yes. Now, with regard to the findings that were made by you and Dr. Squire on the one hand and the findings that were made by Dr. Pour on the other, let me get you to focus on those for a minute. Okay? (End of reading) MR. POHL: 110, line 17. MR. MUSSLEWHITE: Okay. (Reading from video deposition) A Yes. Now, and I know that. that you'd want to attempt to be modest in your responsive and I understand that. I'm sorry if I put-you in in an ackward position but I would like to ask you questions which would give the jury an idea of the relative qualifications that you and Dr. mg.- 2059 1 Squire on the one hand to review slides and Dr. 2 Pour on the other. 3 You are familiar with Dr. Squire's 4 qualifications, are you not? 5 A Yes. I am. 6 And I think you indicated to us earlier in 7 the deposition he was a leading animal 8 pathologist; is that correct? 9 A That's correct. 10 Do you consider yourself to be a pathologist 11 of equal standing with Dr. Squire? 12 A Yes, I do. I think my record and experience 13 I have had speak to that. 14 So, when IBT and/or Monsanto had several 15 people review the Kimbrough slides including you 16 and Dr. Squire, would it be fair to say, Doctor, 17 that at least two of the leading animal 1S pathologists reviewed the Kimbrough slides? 19 A I think that would be true, yes. 20 And that would be you and Dr. Squire? 21 A Yes. 22 INow, let's focus on Dr. Pour for just a 23 moment. Are you familiar with the people who are 24 recognized in this country and throughout the d) 25 world as the leading animal pathologists? 2060 I am familiar with most of them. Is he one of them? I do not know who Dr. Pour is. I've never met the man and have had no other contact with the name other than this, reports which are on the table. And you don't recognize Dr. Pour as being one of the leading animal pathologists such as yourself and Dr. Squire, do you? No, I don't. Now, you are not being paid for your testimony. are you? No, I'm not. And you are not being paid either by the plaintiffs in this case or by Monsanto for that matter? No, I'm not. And you have made no arrangements with me to compensate you for your time whatsoever, have you? That's correct, I haven't. And the opinions that you have given today and both factually and on matters dealing with your area of expertise have been purely those of your own? 2061 A Yes. (End of reading) THE COURT: You-think that is all? MR. POHL: I'm just thumbing through the rest of the pages trying to delete them, Your Honor. MR. POHL: Your Honor, we will pass the witness. THE COURT: All right. Any portion of it? MR. JONES: Very small portion, Your Honor. In fact, Your Honor, it's only one question. Question at Page 134, beginning at line 12. (Reading from video deposition) 0 You wouldn't say that Aroclors or PCBs are carcinogenic in humans or man, would you? A There is no established proof for that. (End of reading) MR. JONES: This concludes our offer, Your Honor. 2062 MR. POHL: Your Honor, in response I asked the witness if Aroclors or PCBs were the kind of product that he would want himself, his wife or his children to ever be exposed to and he said he would not. MR. JONES: Your Honor, I would object to that argument there. I mean, he could read the deposition if he wanted to. MR. POHL: Will be more than happy to. THE COURT: If this -- if this is a correct statement, the witness made in his deposition, the Court will accept it. MR. POHL: Yes. and Mr. Jones was there. THE COURT: If Counsel says it isn't. why you may show in the deposition that it iis correct. MR. POHL: Can we call our next witness? THE COURT: Ladies and gentlemen, we are going to stand recess for 15 minutes. It might stretch into 20, but try to be back in 15. (WHEREUPON AT 3:00 P.M.. COURT WAS IN RECESS UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS OFFICIAL CERTIFICATE I, FRANK MCMILLAN, OFFICIAL COURT REPORTER FOR THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TEXAS, DO HEREBY CERTIFY THAT THE ABOVE ANU FOREGOING PAGES CONSTITUTE A TRUE, CORRECT AND COMPLETE TRANSCRIPT OF THE PROCEEDINGS IN THE ABOVE STYLED AND NUMBERED CAUSE. WITNESS MY OFFICIAL SIGNATURE IN THE CITY OF A BEAUMONT, TEXAS, 0N THELDAY OF 7 ?apL C. FRANK MCMILLAN OFFICIAL COURT REPORTER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS I i