July 11, 2017 Mr. Kevin S. Minoli Designated Agency Ethics Official U.S. EPA (2310A) 1200 Pennsylvania Avenue, NW Washington, DC 20460 Dear Mr. Minoli: The purpose of this letter is to describe the steps that I will take to avoid any actual or apparent conflict of interest in the event that I am confirmed for the position of Assistant Administrator for the Office of Chemical Safety and Pollution Prevention of the United States Environmental Protection Agency. As required by 18 U.S.C. ? 208(a), I will not participate personally and substantially in any particular matter in which I know that I have a financial interest directly and predictably affected by the matter, or in which I know that a person whose interests are imputed to me has a financial interest directly and predictably affected by the matter, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1), or qualify for a regulatory exemption, pursuant to 18 U.S.C. ? 208(b)(2). I understand that the interests of the following persons are imputed to me: any spouse or minor child of mine; any general partner of a partnership in which I am a limited or general partner; any organization in which I serve as officer, director, trustee, general partner or employee; and any person or organization with which I am negotiating or have an arrangement concerning prospective employment. Upon confirmation, I will resign from my positions with the following entities: University of Cincinnati, and the Toxicology Education Foundation. I resigned from my position with the North American Flame Retardant Alliance, and the Toxicology Forum in June 2017. For a period of one year after my resignation from each of these entities, I will not participate personally and substantially in any particular matter involving specific parties in which I know that entity is a party or represents a party, unless I am first authorized to participate, pursuant to 5 C.F.R. ? 2635.502(d). Upon confirmation, I also will resign from my position with the Environmental Protection Agency's Science Advisory Board. Upon confirmation, I will resign from my position as general partner of Dourson, Dourson and Fowler, a partnership that owns undeveloped land in Stanton, KY, and I will transfer my financial interest in this entity to my adult son. I will not participate personally and substantially in any particular matter that to my knowledge has a direct and predictable effect on the financial interests of this entity until I have transferred it, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1), or qualify for a regulatory exemption, pursuant to 18 U.S.C. ? 208(b)(2). For a period of one year after my resignation, I will not participate personally and substantially in any particular matter involving specific parties in which I know Dourson, Dourson, and Fowler is a party or represents a party, unless I am first authorized to participate, pursuant to 5 C.F.R. ? 2635.502(d). My spouse is a sole proprietor of her law firm, which does business as Martha C. Dourson, LLC. For as long as my spouse continues to have her law practice, I will not participate personally and substantially in any particular matter that to my knowledge has a direct and predictable effect on the financial interests of the firm, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1). I also will not participate personally and substantially in any particular matter involving specific parties in which I know a client of my spouse is a party or represents a party, unless I am first authorized to participate, pursuant to 5 C.F.R. ? 2635.502(d). I receive royalties from CreateSpace Independent Publishing Platform for sales of my three books: Messiah's Star (Evidence for Faith) (Volume 1); The Beginning: Let there be light (Evidence of Faith) (Volume 2); and "The Linen Cloths: ...Jesus left behind (Evidence of Faith) (Volume 3). I will not participate personally and substantially in any particular matter involving specific parties in which I know CreateSpace Independent Publishing Platform is a party or represents a party, unless I am first authorized to participate, pursuant to 5 C.F.R. ? 2635.502(d). If I have a managed account or otherwise use the services of an investment professional during my appointment, I will ensure that the account manager or investment professional obtains my prior approval on a case-by-case basis for the purchase of any assets other than cash, cash equivalents, investment funds that qualify for the exemption at 5 C.F.R. ? 2640.201(a), obligations of the United States, or municipal bonds. I will meet in person with you during the first week of my service in the position of Assistant Administrator in order to complete the initial ethics briefing required under 5 C.F.R. ? 2638.305. Within 90 days of my confirmation, I will document my compliance with this ethics agreement by notifying you in writing when I have completed the steps described in this ethics agreement. I understand that as an appointee I will be required to sign the Ethics Pledge (Exec. Order No. 13770) and that I will be bound by the requirements and restrictions therein in addition to the commitments I have made in this ethics agreement. I have been advised that this ethics agreement will be posted publicly, consistent with 5 U.S.C. ? 552, on the website of the U.S. Office of Government Ethics with ethics agreements of other Presidential nominees who file public financial disclosure reports. Sincerely yours, Michael L. Dourson ICMJE Form for Disclosure of Potential Conflicts of Interest Instructions The purpose of this form is to provide readers of your manuscript with information about your other interests that could influence how they receive and understand your work. The form is designed to be completed electronically and stored electronically. It contains programming that allows appropriate data display. Each author should submit a separate form and is responsible for the accuracy and completeness of the submitted information. The form is in six parts. 1. Identifying information. 2. The work under consideration for publication. This section asks for information about the work that you have submitted for publication. The time frame for this reporting is that of the work itself, from the initial conception and planning to the present. The requested information is about resources that you received, either directly or indirectly (via your institution), to enable you to complete the work. Checking "No" means that you did the work without receiving any financial support from any third party -- that is, the work was supported by funds from the same institution that pays your salary and that institution did not receive third-party funds with which to pay you. If you or your institution received funds from a third party to support the work, such as a government granting agency, charitable foundation or commercial sponsor, check "Yes". 3. Relevant financial activities outside the submitted work. This section asks about your financial relationships with entities in the bio-medical arena that could be perceived to influence, or that give the appearance of potentially influencing, what you wrote in the submitted work. You should disclose interactions with ANY entity that could be considered broadly relevant to the work. For example, if your article is about testing an epidermal growth factor receptor (EGFR) antagonist in lung cancer, you should report all associations with entities pursuing diagnostic or therapeutic strategies in cancer in general, not just in the area of EGFR or lung cancer. Report all sources of revenue paid (or promised to be paid) directly to you or your institution on your behalf over the 36 months prior to submission of the work. This should include all monies from sources with relevance to the submitted work, not just monies from the entity that sponsored the research. Please note that your interactions with the work's sponsor that are outside the submitted work should also be listed here. If there is any question, it is usually better to disclose a relationship than not to do so. For grants you have received for work outside the submitted work, you should disclose support ONLY from entities that could be perceived to be affected financially by the published work, such as drug companies, or foundations supported by entities that could be perceived to have a financial stake in the outcome. Public funding sources, such as government agencies, charitable foundations or academic institutions, need not be disclosed. For example, if a government agency sponsored a study in which you have been involved and drugs were provided by a pharmaceutical company, you need only list the pharmaceutical company. 4. Intellectual Property. This section asks about patents and copyrights, whether pending, issued, licensed and/or receiving royalties. 5. Relationships not covered above. Use this section to report other relationships or activities that readers could perceive to have influenced, or that give the appearance of potentially influencing, what you wrote in the submitted work. Definitions. Entity: government agency, foundation, commercial sponsor, academic institution, etc. Grant: A grant from an entity, generally [but not always] paid to your organization Personal Fees: Monies paid to you for services rendered, generally honoraria, royalties, or fees for consulting , lectures, speakers bureaus, expert testimony, employment, or other affiliations Non-Financial Support: Examples include drugs/equipment supplied by the entity, travel paid by the entity, writing assistance, administrative support, etc. Dourson Other: Anything not covered under the previous three boxes Pending: The patent has been filed but not issued Issued: The patent has been issued by the agency Licensed: The patent has been licensed to an entity, whether earning royalties or not Royalties: Funds are coming in to you or your institution due to your patent 1 ICMJE Form for Disclosure of Potential Conflicts of Interest Section 1. Identifying Information 1. Given Name (First Name) 2. Surname (Last Name) 3. Date Michael Dourson 01-August-2016 ? No Yes 4. Are you the corresponding author? Corresponding Author's Name Patricia Nance 5. Manuscript Title Update: Mode of Action (MOA) for Liver Tumors Induced by Oral Exposure to 1,4-Dioxane 6. Manuscript Identifying Number (if you know it) Section 2. The Work Under Consideration for Publication Did you or your institution at any time receive payment or services from a third party (government, commercial, private foundation, etc.) for any aspect of the submitted work (including but not limited to grants, data monitoring board, study design, manuscript preparation, statistical analysis, etc.)? Are there any relevant conflicts of interest? ? Yes No If yes, please fill out the appropriate information below. If you have more than one entity press the "ADD" button to add a row. Excess rows can be removed by pressing the "X" button. Name of Institution/Company Grant? Personal Non-Financial Other Fees? Support? ? Comments Hamp, Mathews & Associates, Inc. ? Financial Support via Contract PPG Corporation ? Financial Support via Contract Waste Management ? Financial Support via Contract Section 3. Relevant financial activities outside the submitted work. Place a check in the appropriate boxes in the table to indicate whether you have financial relationships (regardless of amount of compensation) with entities as described in the instructions. Use one line for each entity; add as many lines as you need by clicking the "Add +" box. You should report relationships that were present during the 36 months prior to publication. Are there any relevant conflicts of interest? Section 4. Yes ? No Intellectual Property -- Patents & Copyrights Do you have any patents, whether planned, pending or issued, broadly relevant to the work? Dourson Yes ? No 2 ICMJE Form for Disclosure of Potential Conflicts of Interest Section 5. Relationships not covered above Are there other relationships or activities that readers could perceive to have influenced, or that give the appearance of potentially influencing, what you wrote in the submitted work? Yes, the following relationships/conditions/circumstances are present (explain below): ? No other relationships/conditions/circumstances that present a potential conflict of interest At the time of manuscript acceptance, journals will ask authors to confirm and, if necessary, update their disclosure statements. On occasion, journals may ask authors to disclose further information about reported relationships. Section 6. Disclosure Statement Based on the above disclosures, this form will automatically generate a disclosure statement, which will appear in the box below. Dr. Dourson reports funding for this project was provided by from Hamp, Mathews & Associates, Inc., PPG Corporation, Waste Management, and the University of Cincinnati during the conduct of the analysis. Evaluation and Feedback Please visit http://www.icmje.org/cgi-bin/feedback to provide feedback on your experience with completing this form. Dourson 3 News from TERA's President and Board of Directors TERA Joins the University of Cincinnati Toxicology Excellence for Risk Assessment joined the Department of Environmental Health, at the University of Cincinnati's (UC), College of Medicine on July 6, 2015. TERA will be known as the Toxicology Excellence for Risk Assessment Center (or TERA Center). TERA was organized in 1995 as a nonprofit with a mission to support the protection of public health through the best use of toxicity data. Now as a Center with the Department of Environmental Health at the University of Cincinnati's College of Medicine, we continue to accomplish this mission through independent evaluation of toxicity data and by interpreting and communicating risk assessment information through assessments and websites, organizing peer reviews and consultations, improving risk methods through research, and educating risk managers, assessors, and the public on risk assessment issues. TERA has a strong history of enhancing the use of chemicalspecific data to increase the rigor and transparency of evaluations aimed at the prevention of potential human health risks. The TERA Center will maintain this rigor and transparency, but will also mesh its work with the research findings of UC investigators in order to develop the next generation of risk assessment methods based on Toxicology 21 principles. TERA Center: To support the protection of public health by developing, reviewing and communicating risk assessment values and analyses; improving risk methods through research; and educating risk assessors, managers, and the public on risk assessment issues. UC-DEH: To improve the quality of life by identifying the mechanisms of disease and injury due to environmental exposures and genetic factors, and by developing effective methods of preventions and interventions. 5|2 0 1 5 T E R A A n n u a l R e p o r t - - RiekE-eaeneeflenterfRE-EJ AaeutUe - Funding Funding 16? Risk Science Center P?pulamkg 20152016 Fiscal Year Prnject Time nnaar Enaimnmental Hearth Academe Programs Masters ef Public rleaIIh Pregram I- CUFE Facilities 9% Cellaberatien CENT-ET II Depanmens News E: Evenze 30% Profit .41" I I I ale-.1 I if 11% Education Br. Training 70% Government Non-Pro?t 2015 TERA Project Time by Sponsor 6% Collaborators Coalition of Project Sponsors ? ? ? ? For Profit 32% Alliance for Risk Assessment Beyond Science and Decisions: From Problem Formation to Dose Response Kids Chemical Safety Webpage OARS: WEEL Project Sponsors ? ? ? ? ? ? ? American Chemistry Council Amgen Coca Cola Genentech GOJO Hamp, Mathews & Associates, Inc. Steptoe & Johnson 2% Education Training Projects ? Dose-Response Boot Camp 68% Government/Non-Profit Project Sponsors ? ? ? ? Consumer Product Safety Commission Health Canada International Life Sciences International Texas Commission on Environmental Quality The sponsors listed above are sponsors that each comprise 2% or more of our work. 25 | 2 0 1 5 T E R A A n n u a l R e p o r t 2014 TERA Project Time by Sponsor ////////////////////////////////////////////////////////////////////////////////////////////// 43% For Profit 2% Training + American Cleaning Institute + Amgen + Eli Lily + Genentech + Morrison & Foerster + Quinn + Dose Response Boot Camp + FDA Training Course Projects/Sponsors 9% Collaborations Projects/Sponsors + Alliance for Risk Assessment TCE Coaltion + Beyond Science & Decisions + Kidschemicalsafety.org + Occupational Alliance for Risk Assessment Projects/Sponsors 57% Government/ Nonprofit Projects/Sponsors + Consumer Product Safety Commission + ERM: Alaska Sulfolane + Health Canada + West Virginia Spill - MCHM 2013 TERA Project Time by Sponsor ///////////////////////////////////////////////////////////////////////////////////////////////////////////////// 13% Collaborations 37% For Profit + Beyond Science and Decisions + International Toxicity Estimates for Risk + Kidschemicalsafety.org + Lessons Learned, Challenges, & Opportunities: The US Endocrine Disruptor Screening Program + Occupational Alliance for Risk Sciences + American Cleaning Institute + Amgen + American Chemistry Council + Eli Lily + Genentech Projects/Sponsors 63% Government/ Non-Profit Project Sponsors + Consumer Product Safety Commission + Health Canada + NIOSH + National Library of Medicine + Texas Commission on Environmental Quality Project Sponsors 2% Training Project/Sponsors + Dose Response Boot Camp + Food & Drug Adminisitration Training Course + Occupational Exposure Training Course 2012 PrOJECT TIME by Sponsor 40% For Profit Project sponsors 7% Education Projects o BootCamp o Training Webinars o Drinker, Biddle & Wreath o Amgen o ACI - Amer. Cleaning Institute o Eli Lilly o NIPERA o PPG o American Petroleum Institute 22% Collaborations Coalition of Project sponsors o Beyond Science and Decisions: From Problem Formulation to Dose Response o Kids Chemical Safety Webpage o Nuclear Receptors Mode of Action o Alliance for Risk Assessment o International Toxicity Estimates for Risk o Occupational Alliance for Risk Sciences 60% Government/ Non-Profit Project sponsors o National Library of Medicine o National Institute of Occupational Safety and Health o Consumer Products Safety Commission o Noblis The sponsors listed above are sponsors that each comprise 2% or more of our work. Proportion of Total 2011 Work by Project Sponsor Each "slice" represents an individual sponsor; shading represents sponsor sector affiliation. Government Education Coalition Industry Other (each sponsor less than 2% of work) Highlighted Sponsors by Sector Affiliation Government ? ? ? ? ? ? ? Health Canada Environmental Protection Agency National Institute for Occupational Safety and Health Air Force Center for Engineering and the Environment Ontario Ministry of Environment Texas Commission on Environmental Quality National Library of Medicine [Type text] Education ? International Toxicity Estimates for Risk (ITER) ? Dose Response Assessment Boot Camp Coalition ? Beyond Science and Decisions Coalition ? Nuclear Receptor MOA Coalition ? Water Environment Research Foundation (WERF) ? Alliance for Risk Assessment (ARA) Industry ? AECOM ? American Cleaning Institute ? American Petroleum Institute ? ToxStrategies ? Eli Lilly Proportion of Total 2010 Work by Project Sponsor Each "slice" represents an individual sponsor; shading represents sponsor sector affiliation. Government Education Coalition Industry Other (each sponsor less than 2% of work) Highlighted Sponsors by Sector Affiliation Government ? Environmental Protection Agency ? National Institute for Occupational Safety and Health ? Health Canada ? National Library of Medicine [Type text] Education Coalition ? Dose Response Assessment Boot Camp ? International Toxicity Estimates for Risk (ITER) ? Beyond Science and Decisions Coalition ? Nuclear Receptor MOA Coalition) ? Alliance for Risk Assessment (ARA) Industry ? Soap & Detergent Association ? Proctor & Gamble ? Eli Lilly ? Nickel Producers Environmental Research Association (NiPERA) Nominee Report | U.S. Office of Government Ethics; 5 C.F.R. part 2634 | Form Approved: OMB No. (3209-0001) (March 2014) Executive Branch Personnel Public Financial Disclosure Report (OGE Form 278e) Filer's Information Dourson, Michael Leonard Assistant Administrator of the Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency Other Federal Government Positions Held During the Preceding 12 Months: Member, Science Advisory Board, EPA (11/2015 - Present) Names of Congressional Committees Considering Nomination: ? Committee on Environment and Public Works Electronic Signature - I certify that the statements I have made in this form are true, complete and correct to the best of my knowledge. /s/ Dourson, Michael Leonard [electronically signed on 06/06/2017 by Dourson, Michael Leonard in Integrity.gov] Agency Ethics Official's Opinion - On the basis of information contained in this report, I conclude that the filer is in compliance with applicable laws and regulations (subject to any comments below). /s/ Fugh, Justina, Certifying Official [electronically signed on 07/21/2017 by Fugh, Justina in Integrity.gov] Other review conducted by /s/ Fugh, Justina, Ethics Official [electronically signed on 07/21/2017 by Fugh, Justina in Integrity.gov] U.S. Office of Government Ethics Certification /s/ Apol, David, Certifying Official [electronically signed on 07/25/2017 by Apol, David in Integrity.gov] 1. Filer's Positions Held Outside United States Government # ORGANIZATION NAME CITY, STATE ORGANIZATION TYPE POSITION HELD FROM TO 1 University of Cincinnati Cincinnati, Ohio University/Colle ge Professor 8/2015 Present 2 Toxicology Excellence for Risk Assessment Cincinnati, Ohio Non-Profit President 2/1995 7/2015 3 North American Flame Retardant Alliance Washington DC, District of Columbia Non-Profit Member, Science Advisory Council 4/2012 6/2017 4 Toxicology Education Foundation District of Columbia, District of Columbia Non-Profit President 5/2016 Present 5 Dourson, Dourson and Fowler, a General Partnership owning undeveloped land Stanton, Kentucky Partnership General Partner 1/1994 Present 6 Toxicology Forum Reston, Virginia Non-Profit Secretary 9/2016 6/2017 INCOME TYPE INCOME AMOUNT 2. Filer's Employment Assets & Income and Retirement Accounts # DESCRIPTION EIF VALUE 1 State Teachers Retirement System (OHIO): Guaranteed Retirement 2020 Fund Yes $1,001 - $15,000 None (or less than $201) 2 TIAA-CREF Equity Index R1 Yes $15,001 $50,000 None (or less than $201) 3 University of Cincinnati N/A 4 State Teachers Retirement System (OHIO): Target Choice 2020 Yes $1,001 - $15,000 None (or less than $201) 5 TIAA-CREF Growth R1 Yes $15,001 $50,000 None (or less than $201) 6 TIAA Real Estate Yes $15,001 $50,000 None (or less than $201) Salary $240,055 # DESCRIPTION EIF VALUE INCOME TYPE INCOME AMOUNT 7 TIAA-CREF Bond Market R1 Yes $15,001 $50,000 None (or less than $201) 8 TIAA Access Bond Plus Fund T4 Yes $15,001 $50,000 None (or less than $201) 9 TIAA-CREF Inflation-Linked Bond R1 Yes $15,001 $50,000 None (or less than $201) 10 TIAA-CREF Lifecycle 2015 Fund - Premier Class Yes $1,001 - $15,000 None (or less than $201) 11 North American Flame Retardant Association (protection of lives and property from fire) N/A Consulting fees $10,000 12 Mercatus Center, George Mason University June 28, 2016 N/A Hononarium $500 13 "Messiah's Star (Evidence for Faith) (Volume 1)," CreateSpace Independent Publishing Platform (value not readily ascertainable) N/A None (or less than $201) 14 "The Beginning: Let there be light (Evidence of Faith) (Volume 2 )," CreateSpace Independent Publishing Platform (value not readily ascertainable) N/A None (or less than $201) 15 "The Linen Cloths: ...Jesus left behind (Evidence of Faith) (Volume 3) ," CreateSpace Independent Publishing Platform (value not readily ascertainable) N/A None (or less than $201) 3. Filer's Employment Agreements and Arrangements # EMPLOYER OR PARTY CITY, STATE STATUS AND TERMS DATE 1 University of Cincinnati, State Teachers' Retirement System (OHIO) Cincinnati, Ohio I will continue to participate in this defined contribution plan. The plan sponsor will not make further contributions after my separation. 8/2015 2 University of Cincinnati, TIAA-CREF Cincinnati, Ohio I will continue to participate in this defined contribution plan. The plan sponsor will not make further contributions after my separation. 8/2015 4. Filer's Sources of Compensation Exceeding $5,000 in a Year # SOURCE NAME CITY, STATE BRIEF DESCRIPTION OF DUTIES 1 University of Cincinnati Cincinnati, Ohio As a professor I am responsible for leading research into the safety of a variety of chemicals, improving methods for assessment and educating students, other scientists and the general public on risk issues. 2 Toxicology Excellence for Risk Assessment Cincinnati, Ohio As the Director and President, I was responsible for leading research into the safety of a variety of chemicals, improving methods for assessment and educating other scientists and the general public on risk issues. 3 North American Flame Retardant Association Washington DC, District of Columbia As a member of a diverse science advisory committee, I was responsible for advising NAFRA on risk issues associated with flame retardant chemicals and publishing relevant research. 5. Spouse's Employment Assets & Income and Retirement Accounts # DESCRIPTION EIF VALUE INCOME TYPE 1 Martha C. Dourson, LLC (solo law practice in probate and estates) N/A $15,001 $50,000 Legal fees INCOME AMOUNT 6. Other Assets and Income # DESCRIPTION EIF VALUE INCOME TYPE INCOME AMOUNT 1 Red River Gorgeous, LLC, residential real estate (Stanton, Kentucky) N/A $50,001 $100,000 Rent or Royalties $1,001 - $2,500 2 Tomlinson, Dourson and Culler, a General Partnership owning farmland (Lucas, Ohio) N/A $50,001 $100,000 Rent or Royalties $201 - $1,000 3 U.S. federal credit union (cash accounts) N/A $50,001 $100,000 None (or less than $201) 4 U.S. financial institution (cash accounts) N/A $1,001 - $15,000 None (or less than $201) # DESCRIPTION EIF VALUE INCOME TYPE INCOME AMOUNT 5 Personal loan to Mr. Workman N/A $1,001 - $15,000 Interest $201 - $1,000 6 Dourson, Dourson and Fowler, a General Partnership owning undeveloped land (Stanton, Kentucky) N/A $15,001 $50,000 7 Residential real estate, Cincinnati, Ohio N/A $100,001 $250,000 8 Thrivent Financial Variable Annuity #1 No 8.1 Aggressive allocation portfolio Yes $50,001 $100,000 None (or less than $201) 8.2 Limited maturity bond portfolio Yes $15,001 $50,000 None (or less than $201) 9 Thrivent Financial Variable Annuity #2: Aggressive Allocation Portfolio Yes $100,001 $250,000 None (or less than $201) None (or less than $201) Rent or Royalties $5,001 - $15,000 7. Transactions (N/A) - Not required for this type of report 8. Liabilities # CREDITOR NAME TYPE AMOUNT YEAR INCURRED RATE TERM 1 Union Savings, Cincinnati, Ohio Mortgage (investment/ren tal property) $100,001 $250,000 2016 3.25 10 years 2 U.S. Bank, Lucas, Ohio Mortgage on Personal Residence $100,001 $250,000 2006 2.99 15 years 3 Whitaker Bank, Stanton, Kentucky Mortgage (investment/ren tal property) $100,001 $250,000 2010 variable 15 year # CREDITOR NAME TYPE AMOUNT YEAR INCURRED RATE TERM 4 Whitaker Bank, Stanton, Kentucky Mortgage (investment/ren tal property) $50,001 $100,000 2008 variable 15 years 5 Whitaker Bank, Stanton, Kentucky Exercised Line of Credit $10,001 $15,000 2017 variable open ended 9. Gifts and Travel Reimbursements (N/A) - Not required for this type of report Endnotes Summary of Contents 1. Filer's Positions Held Outside United States Government Part 1 discloses positions that the filer held at any time during the reporting period (excluding positions with the United States Government). Positions are reportable even if the filer did not receive compensation. This section does not include the following: (1) positions with religious, social, fraternal, or political organizations; (2) positions solely of an honorary nature; (3) positions held as part of the filer's official duties with the United States Government; (4) mere membership in an organization; and (5) passive investment interests as a limited partner or non-managing member of a limited liability company. 2. Filer's Employment Assets & Income and Retirement Accounts Part 2 discloses the following: ? ? Sources of earned and other non-investment income of the filer totaling more than $200 during the reporting period (e.g., salary, fees, partnership share, honoraria, scholarships, and prizes) Assets related to the filer's business, employment, or other income-generating activities that (1) ended the reporting period with a value greater than $1,000 or (2) produced more than $200 in income during the reporting period (e.g., equity in business or partnership, stock options, retirement plans/accounts and their underlying holdings as appropriate, deferred compensation, and intellectual property, such as book deals and patents) This section does not include assets or income from United States Government employment or assets that were acquired separately from the filer's business, employment, or other income-generating activities (e.g., assets purchased through a brokerage account). Note: The type of income is not required if the amount of income is $0 - $200 or if the asset qualifies as an excepted investment fund (EIF). 3. Filer's Employment Agreements and Arrangements Part 3 discloses agreements or arrangements that the filer had during the reporting period with an employer or former employer (except the United States Government), such as the following: ? ? ? ? ? Future employment Leave of absence Continuing payments from an employer, including severance and payments not yet received for previous work (excluding ordinary salary from a current employer) Continuing participation in an employee welfare, retirement, or other benefit plan, such as pensions or a deferred compensation plan Retention or disposition of employer-awarded equity, sharing in profits or carried interests (e.g., vested and unvested stock options, restricted stock, future share of a company's profits, etc.) 4. Filer's Sources of Compensation Exceeding $5,000 in a Year Part 4 discloses sources (except the United States Government) that paid more than $5,000 in a calendar year for the filer's services during any year of the reporting period. The filer discloses payments both from employers and from any clients to whom the filer personally provided services. The filer discloses a source even if the source made its payment to the filer's employer and not to the filer. The filer does not disclose a client's payment to the filer's employer if the filer did not provide the services for which the client is paying. 5. Spouse's Employment Assets & Income and Retirement Accounts Part 5 discloses the following: ? ? ? Sources of earned income (excluding honoraria) for the filer's spouse totaling more than $1,000 during the reporting period (e.g., salary, consulting fees, and partnership share) Sources of honoraria for the filer's spouse greater than $200 during the reporting period Assets related to the filer's spouse's employment, business activities, other income-generating activities that (1) ended the reporting period with a value greater than $1,000 or (2) produced more than $200 in income during the reporting period (e.g., equity in business or partnership, stock options, retirement plans/accounts and their underlying holdings as appropriate, deferred compensation, and intellectual property, such as book deals and patents) This section does not include assets or income from United States Government employment or assets that were acquired separately from the filer's spouse's business, employment, or other income-generating activities (e.g., assets purchased through a brokerage account). Note: The type of income is not required if the amount of income is $0 - $200 or if the asset qualifies as an excepted investment fund (EIF). Amounts of income are not required for a spouse's earned income (excluding honoraria). 6. Other Assets and Income Part 6 discloses each asset, not already reported, that (1) ended the reporting period with a value greater than $1,000 or (2) produced more than $200 in investment income during the reporting period. For purposes of the value and income thresholds, the filer aggregates the filer's interests with those of the filer's spouse and dependent children. This section does not include the following types of assets: (1) a personal residence (unless it was rented out during the reporting period); (2) income or retirement benefits associated with United States Government employment (e.g., Thrift Savings Plan); and (3) cash accounts (e.g., checking, savings, money market accounts) at a single financial institution with a value of $5,000 or less (unless more than $200 of income was produced). Additional exceptions apply. Note: The type of income is not required if the amount of income is $0 - $200 or if the asset qualifies as an excepted investment fund (EIF). 7. Transactions Part 7 discloses purchases, sales, or exchanges of real property or securities in excess of $1,000 made on behalf of the filer, the filer's spouse or dependent child during reporting period. This section does not include transactions that concern the following: (1) a personal residence, unless rented out; (2) cash accounts (e.g., checking, savings, CDs, money market accounts) and money market mutual funds; (3) Treasury bills, bonds, and notes; and (4) holdings within a federal Thrift Savings Plan account. Additional exceptions apply. 8. Liabilities Part 8 discloses liabilities over $10,000 that the filer, the filer's spouse or dependent child owed at any time during the reporting period. This section does not include the following types of liabilities: (1) mortgages on a personal residence, unless rented out (limitations apply for PAS filers); (2) loans secured by a personal motor vehicle, household furniture, or appliances, unless the loan exceeds the item's purchase price; and (3) revolving charge accounts, such as credit card balances, if the outstanding liability did not exceed $10,000 at the end of the reporting period. Additional exceptions apply. 9. Gifts and Travel Reimbursements This section discloses: ? ? Gifts totaling more than $375 that the filer, the filer's spouse, and dependent children received from any one source during the reporting period. Travel reimbursements totaling more than $375 that the filer, the filer's spouse, and dependent children received from any one source during the reporting period. For purposes of this section, the filer need not aggregate any gift or travel reimbursement with a value of $150 or less. Regardless of the value, this section does not include the following items: (1) anything received from relatives; (2) anything received from the United States Government or from the District of Columbia, state, or local governments; (3) bequests and other forms of inheritance; (4) gifts and travel reimbursements given to the filer's agency in connection with the filer's official travel; (5) gifts of hospitality (food, lodging, entertainment) at the donor's residence or personal premises; and (6) anything received by the filer's spouse or dependent children totally independent of their relationship to the filer. Additional exceptions apply. Privacy Act Statement Title I of the Ethics in Government Act of 1978, as amended (the Act), 5 U.S.C. app. ? 101 et seq., as amended by the Stop Trading on Congressional Knowledge Act of 2012 (Pub. L. 112-105) (STOCK Act), and 5 C.F.R. Part 2634 of the U. S. Office of Government Ethics regulations require the reporting of this information. 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News Releases from Headquarters > Chemical Safety and Pollution Prevention (OCSPP) Widespread Praise for Dr. Michael Dourson Dourson Set to Be Head of EPA Office of Chemical Safety And Pollution Prevention 07/17/2017 Contact Information: (press@epa.gov) WASHINGTON (July 17, 2017) Today, President Donald J. Trump announced his intention to nominate Dr. Michael Dourson of Ohio to be head EPA's chemical and pesticides office. Dr. Dourson is a professor in the Risk Science Center at the University of Cincinnati, College of Medicine. He founded the nonprofit Toxicology Excellence for Risk Assessment and worked at the U.S. Environmental Protection Agency, where he won four medals. Dr. Dourson served in multiple positions at the American Board of Toxicology, Society of Toxicology, Society for Risk Analysis, and Toxicology Education Foundation. In addition, to serving on numerous government panels, he is also a member on the editorial board of three toxicology journals. His nomination is receiving high accolades from across the country: Samuel M. Cohen, M.D., Ph.D., Professor, Department of Pathology and Microbiology Havlik-Wall Professor of Oncology University of Nebraska Medical Center: "Dr. Dourson is an outstanding, hard-working scientist with a distinguished record in toxicology and risk assessment... He is widely recognized as a leader in the field of risk assessment... Dr. Dourson is well suited for the position of Assistant Administrator for the EPA given his long track record of bringing together individuals from academia, industry, and government regulatory agencies to work together." Jay I. Goodman, Ph.D., Professor of Pharmacology and Toxicology, Michigan State University: "Dr. Dourson has pursued a very successful career track centered around advancing science-based safety/risk assessment of chemicals... It is without reservation that I recommend Dr. Dourson with my highest level of enthusiasm with regard to his scientific and communication skills, and as an individual of character and integrity." Dr. Gio Batta Gori, Editor-in-Chief, Regulatory Toxicology and Pharmacology, an international journal: "Dr. Dourson is an outstanding scientist whose career in toxicology spans nearly forty years, the early half of which with the EPA itself in critical positions of science, policy and administration. Dr. Dourson would bring an unparalleled breadth of experience and savvy to this position, and is ready to run full speed from the start. Dr. Dourson has a can do and winning temperament that inspires confidence, and is well known as an engaging and skillful negotiator. I wholeheartedly endorse his nomination." Kendall B. Wallace, Ph.D., DABT, ATS, Professor, Biochemistry & Molecular Biology, University of Minnesota: "I find Dr. Dourson to be exceptionally pleasant to work with. He is not only a wealthy resource of scientific information and professional networking, but he also adds thoughtful and challenging perspective to the discussions... Dr. Dourson is one of the first persons I turn to when in need of thoughtful opinion and collegial discussion of issues relating to risk assessment science." The Rev. John Arthur Nunes, Ph.D., President, Concordia College, New York: "My primary context for knowing Michael is at a Christian retreat center where I lecture each summer. He and Martha Dourson (his wife, a lawyer), are annual attendees. For years, Michael's judicious integration of faith and the sciences has struck me as impressive as it is rare. Far too often the proposal of a relationship between science and religion is viewed with incompatibility at best or with inimicality at worst. Not with Dr. Dourson. I recall a lecture of mine in which he served up a delight-inducing response to some point of my talk which accomplished precisely the opposite. While I'm unable to recall the precise, technical genealogy of his commentary, I cannot ever forget the captivated looks of fascination painted on the faces of those who listened to him, their deepened enchantment and marveled appreciation for the intricate wonder of the environment. This anecdote could be repeated from numerous casual conversations among friends of Michael. In short, kudos to you for choosing wisely and well. Best of blessings on your critical work for the sake of the creation, its stewardship and our future." Oliver Kroner, Sustainability Coordinator, City of Cincinnati, Office of Environment and Sustainability: "I wanted to share my high esteem for Michael Dourson, who has been a mentor to me and many other scientists. Dr. Michael Dourson has been a foundational thinker in the protection of human health from chemical exposure. He has been a tireless champion of science, and the role of science to help quantify risk and uncertainty. His research is internationally renowned, and is likely responsible for protecting, if not saving, an uncountable number of lives around the world." Chip May, Executive Director, Camp Arcadia: "I am the executive director of Camp Arcadia, a Christian family camp/resort in Northwest Michigan and I have had the privilege of knowing Mike for at least the past 15 years. My family and I consider Mike and his family the closest of friends. They have been passionate supporters of our ministry over the years and have helped to lead it as well. Mike chaired a beach erosion peer review study about 12 years ago. His professionalism and his ability to work with others well allowed him to deal with a very contentious issue at our camp successfully. Mike listens well, learns from others, and is able to work with people with different views. I highly recommend Mike for this position." Read the full letters at https://www.epa.gov/newsroom/letters-academicsrecommending-dr-michael-dourson-lead-epas-office-chemical-safety-and NEBRASKA'S HEALTH SCIENCE CENTER PATHOLOGY AND MICROBIOLOGY June 30, 2017 Senator John Barrasso, Chairman Environment and Public Works Committee Attn: matt_leggett@epw.senate.gov Dear Senator Barrasso and members of the Committee: It is with pleasure that I write in support of the nomination of Dr. Michael Dourson for the position of Assistant Administrator of the EPA Office of Chemical Safety and Pollution Prevention. Dr. Dourson is an outstanding, hard-working scientist with a distinguished record in toxicology and risk assessment. I have known Mike for more than twenty years and have had the privilege to work with him on a variety of committees and activities. I am a MD and PhD with a long career as a surgical pathologist and a basic scientist in the field of toxicology, risk assessment, and chemical carcinogenesis, with several areas of interest in common with Mike. He is not only extremely knowledgeable about the scientific and regulatory aspects of environmental chemicals, but is held in high esteem by other scientists in academia, industry, and government, including the Environmental Protection Agency (EPA). He is an individual who interacts well with other, is of the highest integrity and is highly respected for his scientific judgement. He has recently returned to the University of Cincinnati, where he had obtained his PhD in 1980. Since that time he has had various positions, but was the founder and leader of the Toxicology Excellence for Risk Assessment Center (TERA) for a little more than two decades, the predecessor organization to his current Risk Science Center at the University of Cincinnati. He has considerable administrative experience in leading a large number of individuals. This has also been evident in his leadership positions in numerous committees in national and international organizations, including as president of the American Board of Toxicology and president of the Toxicology Education Foundation. He has served on numerous committees, including the Science Advisory Boards of the EPA. He has published extensively, with more than 150 publications on various aspects of risk assessment methods or chemical-specific analyses. He is widely recognized as a leader in the field of risk assessment, and these achievements have been rewarded with four bronze medals from the EPA, the Arnold J. Lehman Award from the Society of Toxicology, the Society's highest honor for scientific achievement in risk assessment, and the Achievement Award from the International Society of Regulatory Toxicology and Pharmacology. He is also a diplomate of the American Board of Toxicology, a fellow of the Academy of Toxicological Sciences, and a fellow of the Society for Risk Analysis. Dr. Dourson is well suited for the position of Assistant Administrator at EPA given his long track record of bringing together individuals from academia, industry, and government regulatory 983135 Nebraska Medical Center / Omaha, NE 68198-3135 402-559-4186 / FAX:402-559-6018 / www.unmc.edu agencies to work together to address important issues regarding the environment and public health. His leadership skills, his ability to interact with individuals from all sectors, and his wellorganized approach to addressing difficult issues will serve the agency and our country well. I strongly endorse Dr. Dourson's nomination for this position. Sincerely yours, Samuel M. Cohen, M.D., Ph.D. Professor, Department of Pathology and Microbiology Havlik-Wall Professor of Oncology University of Nebraska Medical Center 983135 Nebraska Medical Center Omaha, NE 68198-3135 (402) 559-6388 (402) 559-8330 (F) 983135 Nebraska Medical Center / Omaha, NE 68198-3135 402-559-4186 / FAX:402-559-6018 / www.unmc.edu REGULATORY TOXICOLOGY AND PHARMACOLOGY AN INTERNATIONAL JOURNAL Dr. Gio Batta Gori Editor-in-Chief The Honorable John Barrasso Chairman, Senate Committee on Environment & Public Works 410 Dirksen Senate Office Building Washington, DC 20510-6175 Dear Senator Barrasso, This letter is to endorse the nomination of Dr. Michael L. Dourson, as Assistant Administrator of the Environmental Protection Agency's Office of Chemical Safety and Pollution Prevention. Dr. Dourson is an outstanding scientist whose career in toxicology spans nearly forty years, the early half of which with the EPA itself in critical positions of science, policy and administration. Dr. Dourson would bring an unparalleled breadth of experience and savvy to this position, and is ready to run full speed from the start. Dr. Dourson has a can do and winning temperament that inspires confidence, and is well known as an engaging and skillful negotiator. I wholeheartedly endorse his nomination. Respectfully, 6704 Barr Road Bethesda, MD 2016 +1-301-229-4277 gorigb@msn.com 13 July 2017 RE: Dr. Michael L. Dourson, nominee for the position of Assistant Administrator, Office of Chemical Safety and Pollution Prevention, US Environmental Protection Agency Senator John Barrasso Chairman, Environment and Public Works Committee US Senate Dear Senator Barrasso: I am a Professor of Pharmacology and Toxicology at Michigan State University. I received a Ph.D. in Pharmacology from The University of Michigan and was a postdoctoral fellow at the McArdle Laboratory for Cancer Research, University of Wisconsin, and I am a former President of the Society of Toxicology. It is my pleasure to write to you in support of Dr. Michael L. Dourson's nomination for the position of Assistant Administrator, Office of Chemical Safety and Pollution Prevention, US Environmental Protection Agency (EPA). I have known Dr. Dourson for approximately 20 years. We frequently attend the same meetings and, thus, have the opportunity to discuss science on a regular basis. We both share a passion for enhancing science-based safety/risk assessment of chemicals. Dr. Dourson has pursued a very successful career track centered around advancing science-based safety/risk assessment of chemicals. He started his career as a staff toxicologist at EPA's Cincinnati Office in 1980 was Chief of the Office's Systemic Toxicants Assessment Branch when he left in 1995. Clearly, based on his rapid promotion trajectory and awards received, Dr. Dourson was viewed as a very valuable EPA employee. From 1995 to 2015 Dr. Dourson was Director and President of the Toxicology Excellence for Risk Assessment Group (TERA). He grew TERA into a well-respected form where scientists from academia, government, industry and non-profit organizations came to work together to advance science-based safety/risk assessment of chemicals. The ability to bring individuals from different sectors together to work on important toxicology issues is one of Dr. Dourson's fortes. In 2015 Dr. Dourson moved TERA to the next level when Senator John Barrasso Chairman, Environment and Public Works Committee US Senate Page 2 he joined the faculty at the University of Cincinnati as a professor in the Department of Environmental Health and TERA was incorporated into the Department as the Risk Science Center. The combination of these work experiences, outlined above, have actually synergized to make Dr. Dourson an ideal candidate for the position of Assistant Administrator, Office of Chemical Safety and Pollution Prevention, EPA. A review of his publications, awards and multitude of invited speaking engagements indicates that he is respected internationally as an expert in safety/risk assessment. In summary, it is without reservation that I recommend Dr. Dourson to you with my highest level of enthusiasm with regard to his scientific and communication skills, and as an individual of character and integrity. Please do not hesitate to contact me if additional information is required. Sincerely, Jay I. Goodman, Ph.D. Professor of Pharmacology and Toxicology goodman3@msu.edu U NIVERSITY OF M INNESOTA Duluth Campus Medical School Duluth 1035 University Drive Duluth, MN 55812-3031 Office: 218-726-7922 Fax: 218-726-8014 http://www.med.umn.edu July 12, 2017 TO: Hon. John Barrasso, Environment and Public Works Committee Chairman CC: Matt_Leggett@epw.senate.gov. RE: Dr. Michael Dourson nomination I am pleased to provide a letter in strong support of the nomination of Dr. Michael Dourson for Assistant Administrator of the EPA Office of Chemical Safety and Pollution Prevention. I have known and worked with Dr. Dourson on a number of professional committees for more than 25 years and am quite familiar with his scientific credentials and personal integrity. My personal background is that I received my graduate training at Michigan State University and completed a NIH-sponsored Postdoctoral Fellowship at the University of Iowa Toxicology Center before joining the faculty of the University of Minnesota Medical School on the Duluth campus in 1981. Since then I have been awarded tenure and been promoted to Full Professor, served as founding director of both the University of Minnesota Toxicology Graduate Program and the Chemical Toxicology Research Center as well as interim department chair and Associate Dean for Faculty Affairs. In professional circles I have been elected as President of the Society of Toxicology, Chair of the American Board of Toxicology, and President of the Academy of Toxicology. I have served on a number of scientific advisory panels for NIH, the FDA and the EPA and as co-Editor-in-Chief of Toxicology since 2001. This experience has provided me ample opportunities to work with and come to know a number of professional colleagues, including Dr. Dourson. Dr. Dourson received his graduate training in toxicology at the University of Cincinnati, a premier and nationally recognized center of excellence for occupational and regulatory toxicology before launching his career in regulatory toxicology at the U.S. EPA. Dr. Dourson leveraged that experience at EPA in founding TERA, a non-profit organization dedicated to developing new methods and models for conducting risk assessment and to promoting the scientific foundations to risk assessment theory and application. As Director of TERA for 21 years, Dr. Dourson successfully cultivated international recognition amongst his peers for his contributions and accomplishments in risk assessment science. Testament to his success is the awarding by his peers of numerous awards of recognition by various professional organizations and societies, highlighted by the Society of Toxicology Arnold J. Lehman Award and the International Achievement Award by the International Society of Regulatory Toxicology and Pharmacology, among many others. Itis clear that he has earned broad, international respect and recognition as one of the most prominent thought leaders in the science of Risk Assessment. On a personal level, I find Dr. Dourson to be exceptionally pleasant to work with. He is not only a wealthy resource of scientific information and professional networking, but he also adds thoughtful and challenging perspective to the discussions; And he does so in a highly respectful and engaging manner. He manages the discussion to encourage all voices and differences to be heard and respected, without distracting from the efficient conclusion in reaching a general consensus amongst all discussants. Dr. Dourson is one of the first persons I turn to when in need of thoughtful opinion and collegial discussion of issues relating to risk assessment science. I consider him to be a scientific leader and personal friend and strongly endorse his nomination for Assistant Administrator of the EPA Office of Chemical Safety and Pollution Prevention. I believe he has the scientific and technical knowledge as well as the professional and personal acumen to excel in the duties of the position. Sincerely, Kendall B. Wallace, Ph.D., DABT, ATS Professor, Biochemistry & Molecular Biology Case: Doc 3194?24 Filed: 05/06/15 Page: 1 of 1 PAGEID 55426 EXHIBIT Timothy Bingman 083112000 02:59:40 PM To: Robert RickardJAElDuPont@DuPont. Gerald KennedyrAEJDuPont@DuPont cc- Kathleen A SheltonlAElDUPonl?DuPonL Bernard RerllyiAElDuPontiQDuF?ont, Andrea Michael ParriAEJDuPont?DuPont Subtract Drospoctrve Contractors for Criteria Review Bobbleerry: As a followup to the go-do i had from this rnoming's meeting. We talked to a number of colleagues that use external toxicity peer review services to see who they like as contractors. While everyone had a few names to offer. the common theme that emerged was that TERA (Le. Mike Dourson) was the leading choice. One person'from another chemical company that used to work in the Criteria Office in Cinncinati said that Mike enjoys. a very good reputation among the folks that are still in the business of "blessing criteria". Other added bene?ts?that were identi?ed for TERA were: 1) their ability to put together an independent peer review panel to oversee their ?ndings: and. 2) their ability to assemble a ?package" and then seil this to EPA. or whomeverwe desired. My sense is that use of TERA is about as close to an process" as we?re likely to ?nd in the time we have to work our issue. l'd recommend that. barring any obieotlon from either of you. we strongly consider putting the wheels in motion to get TERA retained for our criteria developmentjrevlew effort. Tim. 1 61(005063 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 1 of 307 PAGEID #: 5002 Vol. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION CARLA MARIE BARTLETT and JON WILLIAM BARTLETT, ) ) ) PLAINTIFFS, ) ) vs. ) ) E. I. du PONT de NEMOURS AND COMPANY, ) ) DEFENDANT. ) ________________________________________) CASE NO. 2:13-cv-170 SEPTEMBER 30, 2015 8:30 A.M. 9 10 11 VOLUME NO. 12 TRANSCRIPT OF THE PROCEEDINGS OF THE JURY TRIAL BEFORE THE HONORABLE EDMUND A. SARGUS, JR. UNITED STATES DISTRICT CHIEF JUDGE COLUMBUS, OHIO 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR THE PLAINTIFF: Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A. By: James M. Papantonio, Esq. Ned McWilliams, Jr., Esq. Christopher Paulos, Esq. Timothy O'Brien, Esq. 316 South Baylen Street, Suite 316 Pensacola, Florida 32502 Douglas & London, PC By: Gary J. Douglas, Esq. Michael A. London, Esq. Rebecca Newman, Esq. Alicia P. Ellsayed, Esq. 59 Maiden Lane, 6th Floor New York, New York 10038 Taft Stettinius & Hollister By: Robert A. Bilott, Esq. David J. Butler, Esq. 1800 Firstar Tower 425 Walnut Street Cincinnati, OH 45202 1 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 2 of 307 PAGEID #: 5003 Vol. 12 1 2 3 Schlichter, Bogard & Denton, LLP By: Roger C. Denton, Esq. Ashley Brittain Landers, Esq. 100 South Fourth Street, Suite 900 St. Louis, Missouri 63102 4 5 6 The Cochran Firm By: David E. Haynes, Esq. 1100 New York Avenue, N.W. Suite 340, West Tower Washington, D.C. 20005 7 8 9 Cory Watson Attorneys By: Nina Towle, Esq. 2131 Magnolia Avenue South Birmingham, Alabama 35205 10 11 12 13 14 15 16 17 FOR THE DEFENDANT: Squire Patton Boggs LLP By: Damond R. Mace, Esq. C. Craig Woods, Esq. Stephanie E. Niehaus, Esq. Stephen Fazio, Esq. Aaron T. Brogdon, Esq. 4900 Key Tower 127 Public Square Cleveland, Ohio 44114 - - - 18 19 Proceedings recorded by mechanical stenography, transcript produced by computer. 20 21 22 23 24 25 LAURA SAMUELS FEDERAL OFFICIAL COURT REPORTER 85 MARCONI BOULEVARD, ROOM 302 COLUMBUS, OHIO 43215 TELEPHONE NUMBER: 614-719-3245 2 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 22 of 307 PAGEID #: 5023 Vol. 12 1 - - - 2 Thereupon, the following proceedings were held in open 3 court with jurors present at 9:04 a.m. 4 THE COURT: Good morning, ladies and gentlemen. 5 Welcome back. I'm sorry to report that Mr. Quisumbing is sick 6 this morning. I want to thank Ms. Sherry Nichols for filling 7 in for him. 8 She's normally with Magistrate Judge Deavers. With that, DuPont may call its next witness. 9 MR. MACE: Thank you, Your Honor. 10 Dr. Michael Dourson. 11 (Witness sworn.) 12 13 THE COURT: Mr. Mace, whenever you're ready, you may proceed. 14 MR. MACE: Thank you, sir. 15 - - - 16 MICHAEL DOURSON, PH.D. 17 18 The defense calls Called as a witness on behalf of the Defendants, being first duly sworn, testified as follows: 19 DIRECT EXAMINATION 20 BY MR. MACE: 21 Q. Good morning, Doctor. 22 A. Top of the day to you. 23 Q. Could you state your name, please? 24 A. Michael Leonard Dourson. 25 Q. Where do you currently work? 22 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 23 of 307 PAGEID #: 5024 1 A. Vol. 12 University of Cincinnati College of Medicine. 2 Q. What do you do there? 3 A. I'm a research professor in environmental health. 4 we do risk assessment, risk research and then risk 5 communication to the public. 6 7 8 9 Q. 23 And Could you please take us through your educational degrees. A. I got my bachelor's of biology at University of Wittenberg in Springfield, Ohio. Then I went down to the 10 University of Cincinnati and got a doctorate in toxicology from 11 the College of Medicine, the place I now have returned to work. 12 I also along the way got certified in toxicology, American 13 Board of Toxicology certification. 14 training with the U.S. government. 15 16 MR. MACE: And I've had some executive May I approach the deputy clerk, Your Honor? 17 THE COURT: You may. 18 BY MR. MACE: 19 Q. 20 D2455. 21 A. Yes, I do. 22 Q. What is it? 23 A. That's my resume. 24 Q. If we could bring that up, please. 25 Doctor, we've handed you what's been marked as Exhibit Do you recognize that? Will you bring up, please, from the top down through the employment? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 24 of 307 PAGEID #: 5025 Vol. 12 Doctor, there's some letters after your name. What's 1 2 the Ph.D.? 3 A. That's doctor of philosophy in toxicology. 4 Q. The DABT? 5 A. Diplomate of the American Board of Toxicology. 6 24 That's one of the certifying bodies. 7 Q. ATS? 8 A. The Academy of Toxicological Science, another certifying 9 body. 10 Q. Could you take us through, let's start at the bottom on 11 your employment and take us through your employment history 12 briefly. 13 14 15 16 17 18 A. Sure. Briefly. MR. DOUGLAS: want some clarification if we could have a quick side-bar. THE COURT: 21 You may stand if you wish, ladies and gentlemen. I'll see you at side-bar. - - - 19 20 Your Honor, I hate to interrupt but I Thereupon, the following proceeding was held at side-bar: THE COURT: 22 up we just discussed. 23 MR. DOUGLAS: I think the matter you're going to bring I apologize for not being there. But I 24 just want to be sure but since it's not going to go to the jury 25 whether it's proper to display it on the screen at all. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 25 of 307 PAGEID #: 5026 1 2 Vol. 12 I don't remember what we did with your THE COURT: witnesses. Did we do that? 3 MR. DOUGLAS: 4 MR. MACE: 5 I didn't use any resumes. I would still argue it goes back but, regardless, I should be able to use it as a demonstrative. 6 THE COURT: It's not going to be an exhibit. 7 an agreement it won't be an exhibit. 8 back. 9 to this anyway. Without I prefer they all go We can still do that if you wish. He's going to testify 10 - - - 11 Thereupon, the following proceedings were had in open 12 court: 13 BY MR. MACE: 14 Q. If you could continue with your employment history. 15 A. I got my Ph.D. from University of Cincinnati in 1980. 16 Then went across the street and worked for the Environmental 17 Protection Agency as a staff-level toxicologist; worked in EPA 18 for 15 years at various positions, as you can see. 19 time in Washington, D.C. 20 21 22 25 Q. Let me just ask a few specifics. Did some So the acceptable daily intake group, what did that entail? A. Well, back in 1984 we had the National Academy of 23 Science came up with a new way of managing risk assessment in 24 the federal government. 25 took that to heart and one of the things they did is they put There was a lot of confusion. USEPA Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 26 of 307 PAGEID #: 5027 1 Vol. 12 together an acceptable daily intake group within our unit to 26 2 summarize risk values of ADIs that we had already done and that 3 group interacted with other EPA groups that were doing similar 4 work. 5 particular idea, ADI, acceptable intake of the chemical in 6 mind. 7 Q. 8 entail? 9 A. That led to some interagency work groups with this You have methods evaluation development. What did that Part of the National Academy of Sciences' work had to do 10 with new ways to assess risk and so commonly what we've done is 11 we don't experiment on people, we experiment on animals and try 12 to judge the safe level of a chemical from the animal exposure. 13 And the animals, of course, are treated ethically. 14 being is we do this for all chemicals because all chemicals are 15 toxic. 16 this better. 17 Q. 18 times. 19 A. The point There's always new methods and new approaches to do That's what our group is charged with doing. You mentioned the National Academy of Sciences a couple What is that group? Well, it's a -- the National Academy of Sciences is a 20 nonprofit group that does a lot of work for the federal 21 government but it's high level -- they're scientists from all 22 walks of life but they're the A team, the top of the line, 23 usually, and they will do different tasks. 24 to develop this idea of risk assessment in the federal 25 government managing the process. So one of them was That was one of their tasks Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 27 of 307 PAGEID #: 5028 Vol. 12 1 2 3 4 to do that. Q. Then you went to methods evaluation and development. What was that? A. We talked about the developing methods a little bit 5 already. 6 spent a year there in the pesticides and toxics team. But after that was, I went to Washington, D.C. and 7 Q. What did that involve? 8 A. What that involved was I was part of research and 9 27 development. EPA is a large organization, and research and 10 development has a lot of aspects to it. 11 coordinating functions that I served as a chief of this team is 12 to talk to our counterparts in EPA's office at Pesticides and 13 Toxic Substances and take the research that folks were doing in 14 that part of EPA and translate it over to the needs of the 15 folks that were evaluating pesticides and chemicals, toxic 16 chemicals like in your window spray. 17 that? 18 the two EPA groups. 19 20 21 Q. What's a safe level of And so we would -- I was doing the translation between Let's go up to this one, the systemic toxicants assessment branch. A. One of the What did that group? After I did my gig in Washington, D.C. I returned to my 22 home office in Cincinnati, Ohio and that particular group was 23 charged with doing assessments for safe levels of chemical in 24 water. 25 and we had a variety of tasks that worked for primarily EPA's We also did Superfund site risk assessment work there Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 28 of 307 PAGEID #: 5029 1 Vol. 12 program offices, the Office of Water and the Office of Solid 2 Waste and Superfund. 3 4 Q. 28 Then you've got toxicology excellence for risk assessment. What's that group? How did it get started? 5 A. 6 EPA. 7 years in the federal government, learned a lot but was looking 8 for something perhaps different so I took the buyout, which was 9 pretty meager in retrospect, and ended up starting a nonprofit Okay. So, mid-level managers are being bought out by Bill Clinton was offering these buyouts. 10 organization. 11 $25 at the time. 12 exclusion. 13 we've been doing work with various parties. 14 I had been 15 To get an Ohio nonprofit is quite easy. It's But then we had to get a 501(c)3 tax We ended up getting that. For the last 20 years About two-thirds of our work is government and other 15 nonprofits, and about one-third is industry or industry 16 nonprofits. 17 parties. And what we do is we build collaborations between We've got a lot of examples of that. 18 Q. What's the mission of that group? 19 A. It's to provide information to protect the public 20 health. 21 Q. 22 23 24 25 And now you said you're over at the University of Cincinnati? A. Yeah. professor. Q. I've been there for two months as a research I'm still learning what that means. All right. If we could go lower on the page. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 29 of 307 PAGEID #: 5030 Vol. 12 In terms of teaching, have you lectured in graduate 1 2 level? 3 A. Yeah. 29 I've actually done -- since we're close to the 4 University of Cincinnati and the College of Medicine, and since 5 I'm an alumni, they've invited me to give lectures every year, 6 nearly, since I've been out. 7 couple years. 8 and lecture on a routine basis. 9 high school students. 10 11 Q. Well, probably not the first But after I started with TERA I would go over I've given some lectures to That's a challenge. Sir, your CV is 30 pages. I admire teachers. I'm not going to go through all of it. 12 A. Thank you. 13 Q. We're trying to make some progress here. 14 could look over at page 13. 15 risk assessment publications. 16 and peer-review literature on that? 17 18 19 20 21 A. Yeah. after 100. Q. But if we You have a section on research Have you done quite a few papers It's probably near 150. I lost count of them So I just put in what I think is important. You have a section over on page 28 about awards. Have you received a number of awards regarding risk assessment? A. Right. And a number those awards are team efforts. So 22 I think the very first one it was a team effort. 23 different groups that we worked with that do that particular 24 website for kids chemical safety. 25 Cincinnati Poison Control Center, our group, Harvard Center for We had four The groups are the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 30 of 307 PAGEID #: 5031 1 Vol. 12 30 Risk Analysis and NSF International which is a nonprofit in Ann 2 Arbor that certifies chemicals that touch water. 3 your refrigerator door you'll see NSF certification for the ice 4 maker. 5 this website together. 6 7 Q. And we've got together and put I wanted to ask about a particular one over on the next page, page 29. 8 9 So that's what they do. In 2002. Could we bring that one up? Environmental Stewardship Award. A. If you open What was that? That was the work that we did with other group -- other 10 folks on the team to look at the C-8, the CATT team, the 11 assessment team. 12 and Andy Maier got this award. 13 was also unexpected. After we did the report, afterwards, myself It was quite gratifying. It 14 Q. Do you have a copy of the certificate with you? 15 A. Yeah. 16 Q. And that was from whom? 17 A. That was from the State of West Virginia. 18 Q. Now, with regard to your work at EPA did you have any -- 19 Actually I brought that. first of all, are you familiar with the term IRIS? 20 A. IRIS, yeah. 21 Q. What does it stand for and what is it? 22 A. The Integrated Risk Information System. Very much so. It's a system 23 designed by EPA staff. 24 developed it but there was teams of people that review the ADIs 25 at the time and now they're called reference doses, but made I had the lead of the group that Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 31 of 307 PAGEID #: 5032 Vol. 12 31 Once we all agreed, 1 sure that everybody in EPA agreed to it. 2 unanimous consensus, then we put it on the Integrated Risk 3 Information System. 4 Q. How were you involved with it? 5 A. Two ways. My team was -- I was staff lead of the method 6 evaluation and development staff, we were the group that put 7 out the actual IRIS. 8 e-mail and it was very archaic. 9 couldn't go backwards. And the first time we did it was on You can only scroll down. You It was designed only for EPA staff 10 because we found out that our ADIs was not the same between 11 groups. 12 chemicals where we actually did the same evaluation and 39 of 13 the 40 were different. 14 it together and tried to harmonize it. 15 behind the IRIS thing. 16 It was actually pretty embarrassing. We had 40 That was pretty embarrassing. We got That was the principle Part of my effort was to lead the team, to build it, 17 build the database. 18 chaired a group that actually did the certification of the ADIs 19 and then we culled and referenced those. 20 harmonizing so we changed the name and very slowly everybody 21 came into harmony. 22 Q. The second part of the effort was I We had a hard time In all that work that you just described with respect to 23 IRIS, Integrated Risk Information System, that was all done 24 while you were at EPA? 25 A. Yeah. All that work was done, right. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 32 of 307 PAGEID #: 5033 Vol. 12 1 Q. Sir, were you traveling last week? 2 A. Yeah. 3 Q. Where were you? 4 A. I was in Geneva. 5 Q. For what purpose? 6 A. Switzerland. 32 Actually I was. I was offered to -- selected, I suppose, 7 to attend a joint meeting of the Food Agricultural 8 Organization. 9 And another unit of the World Health Organization to do So it's a part of the World Health Organization. 10 pesticide reviews. 11 two weeks. 12 the time I accepted it last year, but nevertheless. 13 they do is they review the toxicology or exposure information 14 for about 20 pesticides. 15 the Thursday you walk out of that meeting and they've got the 16 report done. 17 it. 18 gets released. 19 World Health Organization will use that information to set safe 20 levels of pesticides for their crops. 21 pesticide. 22 that's safe use. 23 Q. So this group gets together once a year for I didn't realize it was a two-week assignment at And what And when they do that, at the end of It's pretty impressive actually the way they do And then that report gets edited and things and then it Sometime later, different member countries, the So people can use the As long as it doesn't go above a certain level then All right. Let me focus this, sir. You mention the 24 CATT team and the jury's heard a little bit about that. 25 been at this for two weeks, going on three. We've Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 33 of 307 PAGEID #: 5034 Vol. 12 1 A. Okay. 2 Q. Let's bring up Defense Exhibit D613. 3 MR. MACE: 4 THE COURT: 5 BY MR. MACE: 6 Q. 7 May I approach, Your Honor? You may. Sir, do you recognize this as the final report that came out of the CATT? 8 A. Yes, it is. 9 Q. And do you understand, sir, that you're here to give 10 33 fact testimony regarding your involvement in the CATT team? 11 A. Yes. 12 Q. How did you get involved in the CATT team? 13 A. One or more of my staff, either myself or one of our 14 staff, were approached by a contractor with the State of West 15 Virginia to see if we could develop a small group to study this 16 issue. 17 Q. 18 If you could turn over, please, to page 6. paragraph. 19 The second Could you blow that up? It talks about the CATT team being tasked with 20 investigating the toxicity of C-8; developing provisional risk 21 factors; and, establishing human health protective screening 22 levels for air, water and soil. 23 accurate description of part of what you were doing? Does that sound like an 24 A. Yes. 25 Q. Go over to page 8, please. Blow up the third paragraph. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 34 of 307 PAGEID #: 5035 Vol. 12 34 The CATT toxicologists met on May 6 and 7, 2002 at EPA 1 2 offices in Cincinnati, Ohio. 3 memory? 4 A. Yes. 5 Q. And with respect to TERA, which you've talked about and Does that comport with your 6 the jury's heard a little bit about, at page 9, it says TERA is 7 a nonprofit corporation dedicated to the best use of toxicity 8 data to the development of risk values. 9 toxicologists on the CATT, whether from government agencies or 10 industry, were in unanimous support of including TERA in this 11 project. 12 13 14 15 16 Is that accurate to your memory? A. Well, the first line is accurate. I'm not so sure I knew about the second part. Q. Let's turn over to the next page, page 10. Why don't we bring up from the top of the page down to Mr. Briggs. 17 18 All the nonTERA So this meeting was held over two days, May 6 and 7, between these toxicologists? 19 A. Yes. 20 Q. Were you familiar -- are you familiar today or were you 21 familiar back at the time with these -- let's start with Mr -- 22 how does he say that? 23 A. Cicmanec. 24 Q. Dr. Cicmanec from USEPA. 25 A. I'm very familiar with Dr. Cicmanec. John Cicmanec. Are you familiar with him? I worked on the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 35 of 307 PAGEID #: 5036 1 Vol. 12 ADI work group with him and when we traveled on occasion, we 2 had to room together to save money. 3 Q. What about Dr. Rotenberg? 4 A. I know Dr. Rotenberg a little bit less well. He's in 5 Region 3 Philadelphia office. 6 recognize him. 7 basis. 8 Q. Jennifer Seed, Dr. Seed? 9 A. Dr. Seed is a well-respected toxicologist in USEPA. If he walked in here, I'd But I didn't work with him on a day-to-day 10 worked with her a number of times. 11 toxicologist. 12 13 14 15 Q. I She's a developmental Very astute. Dr. John Wheeler from the Agency for Toxic Substances and Disease Registry? A. I knew him a little bit less well. Probably not -- I wouldn't have recognized him prior to that meeting. 16 Q. And he's got that same certification, DABT? 17 A. It's a Diplomate of the American Board of Toxicology. 18 Q. Is that board certification? 19 A. Board certification in toxicology, yes. 20 Q. Tell us about this organization. 21 that term. 22 what it does. 23 35 A. I think the jury heard I don't think we ever talked about that agency is, It's a U.S. federal agency located in Atlanta, Georgia. 24 They didn't exist -- I guess they came into existence about 20 25 years ago when the Superfund site work became more prominent in Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 36 of 307 PAGEID #: 5037 Vol. 12 36 EPA, I believe at the time, was doing the 1 the U.S. government. 2 work and it was so extensive they created another agency. 3 sure there's some political things about that but I'm unaware 4 of any of that. 5 down there. 6 They also had some luminaries, Christa Rosa was another person 7 that came from EPA, went down there, did a lot of good work. 8 9 10 Q. I'm And they do have some really good scientists John Wheeler I got to know as a good scientist. These individuals from USEPA and the Agency for Toxic Substances Disease Registry, were these knowledgeable and competent people? 11 A. Oh, absolutely. 12 Q. Factually, sir, can you describe for us generally the 13 steps of the process that was followed by the CATT team to come 14 up with the drinking water screening level? 15 A. Well, yeah. In general what had happened was USEPA -- 16 TERA staff summarize a large body of information into tables 17 with summaries and then that information was passed out to the 18 CATT team probably three, four weeks ahead of the meeting. 19 CATT team then looked at the information. 20 questions, they could come to TERA and say, hey, I want more 21 information on this study or whatever. 22 meeting and at the meeting we carefully went through each study 23 trying to cull out about this study, where is the place where 24 the study doesn't show any effect. 25 The If they had And then we had the Because what toxicologists do, they'll test experimental Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 37 of 307 PAGEID #: 5038 1 Vol. 12 37 animals in an ethical way and they want to test a high enough 2 dose to cause a toxicity. 3 if you drink too much will kill you. 4 to see where the toxicity is and you test low enough to see 5 where there's no effect. 6 All chemicals are toxic, even water So you test high enough Between that gap, you study that and in the CATT team 7 study, each study that way and try to determine the no-effect 8 level and then the effect level. 9 culled it out as a no observe adverse effect level and they Once you determine that, they 10 went through each study. 11 looking at different studies and applying this thing called a 12 safety factor or uncertainty factor to take that animal 13 no-effect level and project it to people. 14 dose for people. 15 Once they did that, they started That becomes a safe So the CATT team did that with each study and then at 16 the end, they went through and had a discussion about the 17 appropriate safety factors for each study because they're not 18 always the same. 19 Q. And was it an open discussion -- based on your personal 20 observations was it an open discussion among the various 21 people? 22 A. Open discussion and free flowing. One reason it's free 23 flowing is what we do in our particular situation and what was 24 followed here is that we don't say who said what in the notes 25 so there isn't a person assigned to a particular statement. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 38 of 307 PAGEID #: 5039 1 Vol. 12 Even though during the meeting, of course, a person makes a 2 particular statement. 3 38 What that allows is anybody to make whatever comment 4 they want based on the science and that focusing on the science 5 is what we had in our meeting. 6 discussion. 7 8 Q. You mention the minutes. It was a free-flowing Could we bring page 10 back up, please? 9 So this page of the report is titled the CATT 10 toxicologist meeting minutes. 11 check your copy there, does that continue through page 35 of 12 the report? It starts at page 10. Could you 13 A. That's correct. 14 Q. And is that detailed minutes of the various studies that 15 you looked at, some of the key points that were brought out 16 about the studies and the votes to conclusion? 17 A. That's correct. 18 Q. And with regard to that, reaching a conclusion, how did 19 20 that work? A. Was it one person/one vote or some other method? The attempt is to do consensus. Unanimous consensus 21 would be ideal, of course. 22 for many of the studies we did have unanimous decisions on 23 where the no-effect level was and the effect level. 24 uncertainty factors discussions were a little bit more less 25 unanimous. The studies are pretty complex and The So in those cases what we did was we just voted. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 39 of 307 PAGEID #: 5040 1 Vol. 12 Everybody was heard and then the chair, Dr. Staats would -- 2 If someone said, hey, the safety factor should be 10, 3 which is sort of our default maximum and other people said, 4 well, I don't think that's a worry at all. 5 be 1, which is basically saying I don't think we should even 6 use it and other people would say, well, it should be halfway 7 between. 8 you multiply them. 9 think normally. I think it should Well, halfway between when you use safety factors, Halfway between is not 5 which is what you It's 3. Three times three is about ten. 10 probably a scientific technical point. 11 the midway point. 12 It's But three is kind of So people would say 1, 3 or 10 often. If there was a 13 spread, the chair would say can we all live with, let's say, 14 this number. 15 what they went with. 16 different votes. 17 18 Q. Let's say 3. If you can live with it, that's But sometimes we voted and there was That's all laid out in the document. Let's get to the results over at page 33. If you could bring up the screening levels. 19 The report says the screening levels are calculated 20 following the premise that if lifetime exposure is equal to or 21 less than the pRfD or pRfC then no risk of deleterious effect 22 is expected. 23 A. 24 RfC. 25 Q. 39 Is that right? That's correct. According to the definition of RfD or What are those describing? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 40 of 307 PAGEID #: 5041 1 A. Vol. 12 40 The reference dose is the dose with uncertainty spanning 2 perhaps an order of magnitude kind of a tenfold. 3 of imprecise. 4 daily oral exposure or the case of an RfC inhalation, 5 continuous inhalation exposure, it's likely to be without 6 deleterious effects for a lifetime in sensitive subgroups. 7 the general population including sensitive subgroups. 8 protects everybody. 9 Q. 10 11 12 The daily, in the case of a reference, those We can go to page 35. So this Blow up for water. The determination was for water that that number was, is that 150 parts per billion? A. 150 micrograms per liter is parts per billion. THE COURT: 14 MR. DOUGLAS: 16 Is there an objection? Your Honor, I would request at this time the limiting instruction with respect to this number. THE COURT: I'll see you at side-bar. 17 You may stand if you wish, ladies and gentlemen. 18 - - - 19 20 In That's the intent. 13 15 So it's kind Thereupon, the following proceeding was held at side-bar: THE COURT: The defendants had a different proposed. 21 You want me to use the 2014 as the date of the science -- 2012, 22 excuse me. 23 MR. MACE: 24 THE COURT: 25 MR. DOUGLAS: Yes. Do you have an objection to that? I'm sorry, I'm not following that. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 41 of 307 PAGEID #: 5042 Vol. 12 41 Mentioning the date that the science panel 1 MR. MACE: 2 came out with the finding. 3 THE COURT: 4 MR. BILOTT: 5 MR. DOUGLAS: I don't think it's a good idea to change anything. 8 9 We would ask that the Court read the original instruction that was agreed to. 6 7 As 2012. THE COURT: It's a long one. I've given it at least, I'm going to guess, seven or eight times. 10 MR. DOUGLAS: But I think this is an important time to 11 give it and I would note that any time the word trial has been 12 mentioned, Mr. Mace pops out of his seat and requests that 13 charge. 14 THE COURT: I'm going to use, for now, the one that 15 was the previous one but I did ask, I think, Mr. O'Brien to 16 take a look at this and tell me what his view is. 17 address that the next time. 18 MR. DOUGLAS: We'll Thank you, Your Honor. 19 - - - 20 Thereupon, the following proceedings were had in open 21 22 23 24 25 court: THE COURT: Counsel, let me see you again at side-bar. Ladies and gentlemen, you may stand by your seats, if you wish. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 42 of 307 PAGEID #: 5043 Vol. 12 - - - - 1 2 Thereupon, the following proceeding was held at side-bar: 3 THE COURT: This is not in the list that we put 4 together. 5 beginning of the case? Are you talking about the instructions I gave at the 6 MR. MACE: 7 MR. DOUGLAS: 8 THE COURT: 9 I think that is. And several times during the course. Very good. I'll just stay with the script that we used at the beginning of the case. Thank you. 10 - - - 11 Thereupon, the following proceedings were had in open 12 court: 13 14 42 THE COURT: So, ladies and gentlemen, I know you've heard this before but this is an important part of this case. 15 As you recall, the parties agreed before this case 16 started that, based on the science panel, there was a level 17 that if Mrs. Bartlett proves she's entitled to, that being that 18 she drank the water for more than a year and that the water she 19 drank contained a C-8 level of greater than .05 parts per 20 billion then the issue of general causation would not be one 21 for you to decide. 22 We're looking at a different standard here, earlier in 23 time. 24 DuPont's conduct but not with regard to the issue I just 25 mentioned that the parties have agreed to. And that's offered for you to consider when you look at Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 43 of 307 PAGEID #: 5044 Vol. 12 1 So with that, you may continue. 2 MR. MACE: 3 BY MR. MACE: 4 Q. 5 6 Thank you, Your Honor. Dr. Dourson, I think you mentioned that you could help us understand part per billion maybe? A. Right. So the way you look at part per billion is you 7 take a sugar packet, you open up and you dump it out and you 8 have all those little sugar granules. 9 different amounts. Of course they all weigh Generally they're 10 micrograms to 10 100 micrograms. 11 you get 10 micrograms. 12 or three cans of Coke or something like that, that's 10 parts 13 per million. 14 15 16 43 So if you lick your finger and pick one up, If you put that into a liter of water, 10 micrograms per liter. So 150 is more than that. It's two or three of them, depending on how much they weigh. Q. So before we leave the CATT report, let me just point 17 out a couple things. 18 and there's the DEP -- DEP is the Department of Environmental 19 Protection? At page 46 there's a discussion on water 20 A. I believe so, yeah. 21 Q. Notes the water screening level is higher than DuPont's 22 internal community exposure guidelines for drinking water of 1 23 or 3 parts per billion. 24 developed in the early '90s and based solely on two-week 25 inhalation study from '86. However, these guidelines were Since then, significant additional Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 44 of 307 PAGEID #: 5045 1 Vol. 12 toxicology data have been collected and the CATT water SL is 2 based on a comprehensive examination of all available 3 information. 4 Did you feel that the number that you came up with with 5 this CATT team was based on a comprehensive examination of all 6 available information? 7 8 MR. DOUGLAS: Objection. Calling for an expert opinion. 9 THE COURT: 10 We're getting right up to that. This witness is here to talk about the methodology and 11 just the process by which this was done, not to give an expert 12 opinion on anything in conclusions like that. 13 14 With that distinction in mind, he may answer the question. 15 BY MR. MACE: 16 Q. 17 18 44 You may answer, Doctor. Did you feel that your process involved a comprehensive examination? A. Absolutely. The fact is, the usual process is one group 19 does -- looks at all the data by themselves and after they 20 write the report they get it peer reviewed by an outside group. 21 This was different in that we had an outside group come 22 together and collectively develop the risk value. 23 actually surprising that we got it done in two days. 24 never done that before. 25 taken this as a model to apply to other situations. It was We've We've done it since because we've So it was Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 45 of 307 PAGEID #: 5046 1 Vol. 12 a very good rendition of the data and a good discussion with 2 different viewpoints during the course of the two days. 3 Q. One other point. If we could go over to page 27. 4 paragraph here on the cancer hazard. 5 identification. 45 This Talks about cancer hazard 6 The panel discussed the evidence for C-8 carcinogenicity 7 in humans and agreed that the human carcinogenicity evidence is 8 inconclusive. 9 retired workers, three of these four cases now are known to 10 Although four prostate tumors were reported in have minimal or no C-8 exposure. 11 As part of the studies that the CATT team discussed, did 12 you discuss the '93 Gilliland thesis about the 3M plant and the 13 prostate cancer? 14 A. I believe I did. 15 Q. Could you check the report and look at it? 16 A. That was a human study section? 17 18 19 Mandel 1996? Q. I'd have to check to make sure. That was Gilliland and Gilliland and Mandel 1993. I see it. Did your team review both the '93 Gilliland and Mandel and the '96 update? 20 A. Yes, we did. 21 Q. Doctor, did the toxicologists who participated in coming 22 up with the determination that the lifetime exposure to the 150 23 parts per billion or less of C-8 would have no risk of 24 deleterious effects, did those toxicologists sign a 25 certification of the final report? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 46 of 307 PAGEID #: 5047 Vol. 12 1 A. 2 3 Yes, they did. MR. MACE: May I approach the deputy clerk, Your Honor? 4 THE COURT: 5 BY MR. MACE: 6 Q. 7 46 You may. Doctor, we've handed you what's been marked as D1812. Do you recognize that? 8 A. Yes, I do. 9 Q. Are those copies of the signed certifications? 10 A. Yes, they are. 11 Q. Could you please bring up 1812? 12 dot 3. 13 top. 14 Let's start with page Mr. Hoeppner, if you could bring up the language at the I apologize for the quality of this. Can you see the 15 words, I agree that the notes, as presented, accurately reflect 16 the panel's discussion and conclusions during the May 6 to 17 7, '02 C-8 assessment of toxicity toxicologists panel meeting. 18 You see that language? 19 A. Yes, sir. 20 Q. Down below, did Dr. Wheeler from ATSDR signed that? 21 A. Yes, he did. 22 Q. Go back to the cover page. 23 Did Dr. Rotenberg from EPA sign that? 24 A. Yes, he did. 25 Q. Go to page dot 4. Did Dr. Seed from EPA sign that? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 47 of 307 PAGEID #: 5048 Vol. 12 1 A. Yes, she did. 2 Q. And over at dot 5 did Dr. Cicmanec sign it as well? 3 A. Yes, he did. 4 Q. Did you sign it as well? 5 A. Yes, I did. 6 Q. Did all ten of the toxicologists sign it, sir? 7 A. We all signed it. 8 Q. And back at that time, sir, after the final report had 9 10 11 been issued, what was your feeling about the process that had been used to come up with that number? A. Again, I -- 12 MR. DOUGLAS: 13 THE COURT: Objection. I think it's the framing of the question. 14 Rephrase that, please. 15 Mr. Douglas on his feet. 16 BY MR. MACE: 17 Q. Feeling is the word that set Sir, that process, did you feel that that was a fair and 18 reliable process that had been used to come up with that 19 number? 20 21 MR. DOUGLAS: Same objection. THE COURT: 23 The objection is overruled. 25 It's word. It's an expert opinion. 22 24 47 THE WITNESS: Overruled. It's a question about process. You may answer. I thought the process was great. And, again, we've used it subsequently to do complex evaluation. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 48 of 307 PAGEID #: 5049 Vol. 12 1 BY MR. MACE: 2 Q. 3 Sir, let me switch topics a second. Are you familiar with the term conflict of interest? 4 A. Yes, I am. 5 Q. What does that refer to? 6 A. Well, there's a couple ways you could look at it. We 7 have a well-established -- we have a conflict of interest 8 statement on our website for all peer reviews and work that we 9 do. Conflict of interest can look to be a financial conflict 10 of interest. 11 DuPont, for example, and I would go into this meeting, I would 12 have a financial conflict of interest. 13 conflict of interest. 14 So it's not like it's wrong but if I own stock in That's a financial There are times when a conflict of interest might be -- 15 well, let's go to the bias. 16 way scientists look at biases is we're all biased. 17 toxicologist so I look at epidemiology data from a toxicology 18 perspective. 19 Then they have biases. 21 intense biases, that's a conflict. 22 We go through that with each of our panels. 25 I'm a So you balance biases on peer review panels but you avoid conflicts of interest. 24 And the I have a toxicology bias. 20 23 48 Q. On occasion, someone has such And that's a judgment call. Sir, did you have a conflict of interest in working on the CATT team? A. No. Not at all. I didn't have a financial conflict of Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 49 of 307 PAGEID #: 5050 1 2 Vol. 12 interest for the reasons that we described on our website. Q. Did anybody at TERA? You had some other members of your 3 team that were on that group. 4 conflict of interest working on the CATT team? Did anybody at TERA have a 5 A. No. 6 Q. A separate issue, Dr. Dourson. They didn't have a financial conflict of interest. If anybody suggested to 7 the jury that TERA was biased toward industry, is that 8 accurate? 9 A. Well, I wouldn't use the word biased toward industry. 10 Our mission is to protect public health and we do this by 11 looking at the science as best possible. 12 dedicated to the best use of tox data for risk values. 13 what we're all about. 14 work with industry and government and NGOs, nongovernment 15 organizations, to build teams to do this. 16 a team you can't be overtly or even partially biased with one 17 part of the team or other. 18 really -- we strive to be neutral in all cases. 19 Our motto is That's We build collaborative information so we When you're building You have to just be neutral. We're If someone said that, I would encourage them to look at 20 our website. 21 types of work we've done. 22 accolades. 23 that have talked about us. 24 General wrote a report on peer reviews -- 25 49 You can look at the funding, you can look at the You can look at, I don't want to say That's probably too strong. MR. DOUGLAS: There have been people For instance, the EPA Inspector Your Honor, I'm going to ask that that Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 50 of 307 PAGEID #: 5051 Vol. 12 1 be stricken. 2 THE COURT: The objection is sustained. 3 BY MR. MACE: 4 Q. Back in 2002, so let's focus on the year in question. 5 A. Sure. 6 Q. Back in 2002. 7 2002? 8 A. No. 9 Q. You mentioned funding. 10 MR. MACE: 11 THE COURT: 12 BY MR. MACE: 13 Q. 14 Was TERA biased toward industry back in May I approach, Your Honor? You may. Have you been handed a demonstrative aid which is a printout from your website of funding from over the years? 15 A. Yes. 16 Q. Bring that up, please. 17 20 And if we could bring up the table at the bottom. 18 19 What is this graphic showing in terms of just overall before we focus on 2002? A. Just overall it's just the amount work we do for 21 government other than nonprofit versus industry and industry 22 related. 23 24 25 50 Q. So in 2002, which was the year of this CATT team report, how did the breakout work? A. Well, yeah. 72 percent was government or other Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 51 of 307 PAGEID #: 5052 1 2 3 4 5 6 7 Vol. 12 51 nonprofit work and 28 percent was industry or industry related. Q. And that number has varied at different times in different years? A. Oh, yeah. Roughly it's about two-thirds government, one-third industry, roughly. Q. Sir, were you personally present during these CATT team meetings, both days, on May 6 and May 7 of 2002? 8 A. Yes. 9 Q. Did you personally observe what went on in the meetings? 10 A. Yes. 11 Q. The jury has seen Mr. Kennedy from Mr. DuPont was part 12 of the meeting? 13 A. Yes, he was. 14 Q. Based on your personal observations, was Mr. Kennedy 15 dominating the discussion? 16 A. No. 17 Q. Did you hear Mr. Kennedy try to strong-arm anyone into 18 voting a certain way? 19 A. No. 20 Q. We saw up on the list that Dr. Butenhoff from 3M was 21 also there as an invited guest? 22 A. Yes. 23 Q. Since 3M had conducted a number of the animal studies 24 and was the manufacture and supplier of C-8 was it helpful to 25 have him there to answer questions anyone would have? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 52 of 307 PAGEID #: 5053 1 A. 2 this. 3 Q. Yes. Vol. 12 52 Study directors are always useful at meetings like During your personal observations during those two days 4 of the meetings, did any of the industry representatives 5 dominate the discussions or the voting? 6 A. No. 7 Q. Were the industry folks lobbying for higher numbers for 8 the screening level? 9 A. No. 10 Q. Bottom line, Dr. Dourson, did it appear to you that the 11 CATT team process was an unbiased process with an open 12 discussion of the science based on the knowledge at the time? 13 A. Absolutely. 14 Q. Sir, did anyone coerce you or improperly influence you 15 in any way to arrive at 150 part per billion number? 16 A. No. 17 Q. Before I sit down, sir, have you ever testified for me 18 before? 19 A. No. 20 Q. Have you ever testified for anyone from my law firm, 21 Squire Sanders or Squire Patton Boggs before? 22 A. No. 23 Q. Have you ever been employed by DuPont? 24 A. No. 25 Q. Do you own any stock in DuPont? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 53 of 307 PAGEID #: 5054 Vol. 12 - 53 1 A. No. 2 Q. Did you receive a subpoena to be here to testify today? 3 A. Yes, I did. 4 Q. Was that served on your at your office at the University 5 of Cincinnati? 6 A. Yes, it was. 7 Q. Other than reimbursement of your mileage expenses for 8 traveling here to testify and your daily subpoena attendance 9 fee of $40 are you receiving any money from DuPont? 10 A. From DuPont, no. 11 Q. Did I talk to you by phone to check on some facts a 12 couple of times over the past few months? 13 A. Yes, you did. 14 Q. Did you ever meet me before you walked into the 15 16 courtroom today? A. 17 18 No, I haven't. MR. MACE: Thank you, sir. I have nothing further at this time. 19 THE COURT: 20 Thank you, Mr. Mace. Mr. Douglas, you may cross-examine. 21 - - - 22 CROSS-EXAMINATION 23 BY MR. DOUGLAS: 24 Q. Good morning. 25 A. Top of the day to you. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 54 of 307 PAGEID #: 5055 1 Q. Vol. 12 54 Not accustomed to hearing somebody say top of the day. 2 I haven't been in England for quite a while. 3 acceptable way of saying good morning. 4 A. It certainly is. 5 Q. And a good morning to you, sir. 6 I guess it's an Did I hear you say you received a subpoena to be here 7 today? 8 A. Yes, I did. 9 Q. You don't mean to imply to our jurors that but for the 10 subpoena you wouldn't be here? 11 A. I'm not sure how to answer the question. 12 Q. Let me see if I can help you out. 13 When did you receive the subpoena? 14 A. Yesterday. 15 Q. Where were you when you received it? 16 A. At the University of Cincinnati. 17 Q. What time of day did you receive it? 18 A. I think it was the afternoon. 19 Q. How long have you been in Columbus? 20 A. You mean this morning? 21 Q. When did you get to Columbus, Ohio? 22 A. I came in about -- left Cincinnati at 5:30. 23 roughly. 24 Q. You did not arrive yesterday? 25 A. No, sir. 7:30 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 55 of 307 PAGEID #: 5056 1 2 Q. Vol. 12 And so but before you received the subpoena you knew 55 that you were going to be here today and testify, correct? 3 A. Yes, I had been -- 4 Q. When did you first know, sir, that you were going to 5 travel from Cincinnati to Columbus, Ohio to give testimony for 6 the defendant DuPont in this case? 7 A. Probably last week. 8 Q. That's the first time you ever heard that your testimony 9 10 11 would be wanted in this case, in this trial? A. directly. 12 Q. 13 case? 14 A. 15 16 17 18 19 No. Pardon me. Maybe I misunderstood it. What was the question? When were you first asked to give testimony in this I was -- probably several months ago when -- well, I'm not so sure. Q. I thought I answered your question Several months ago Mr. Mace had questions. And you had spoken to Mr. Mace before today. This isn't the first time you've spoken with him? A. Oh, no. I've spoken with Mr. Mace. He had questions about part of the files that we kept. 20 Q. Was that by telephone? 21 A. Yes. 22 Q. Have you ever met Mr. Mace before? 23 A. No. 24 Q. Have you met anybody from his firm before? 25 A. I don't believe so. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 56 of 307 PAGEID #: 5057 Vol. 12 1 Q. What do you mean you don't believe so? 2 A. I don't know everybody in his firm. 3 Q. You didn't mean to suggest to our jurors that you just 56 4 found out yesterday, you got a subpoena and you got in your car 5 and came here all bright-eyed and bushy-tailed, ready to go to 6 give testimony that you had no idea of -- no way of knowing 7 that you were going to -- 8 A. I don't mean to imply that. 9 Q. By the way, you know that -- my name, by the way, is 10 Mr. Douglas. Gary Douglas. 11 A. Nice to meet you. 12 Q. Good to make your acquaintance. You know that folks, 13 paralegals and attorneys from my team, have tried to call you 14 and ask you questions about your files. 15 A. Okay. 16 Q. And you know a Ms. Carol Moore? 17 A. Good morning. 18 Q. Why don't you tell the jurors, do you check your 19 She's a paralegal. messages, sir? 20 A. Check my messages? 21 Q. Yeah. 22 A. Absolutely. 23 Q. Then you know that Ms. Moore has been calling you When people leave a message and they call? 24 several times and you have yet once to return her call. 25 know that? Do you Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 57 of 307 PAGEID #: 5058 Vol. 12 1 A. I'm not aware of that, sir. 2 Q. You're not aware of that. 3 I thought you checked your messages? 4 A. As I said, I'm not aware of any message from Ms. Moore. 5 Q. So would you be willing to talk to us privately, as you 6 spoke to Mr. Mace? 7 A. Absolutely. 8 Q. Then why didn't you return her calls? 9 A. Sir, I don't know -- I'm not aware of any calls from 10 Mrs. Moore. 11 Q. So when you leave today would you mind talking with me? 12 A. No. 13 Q. Sir, what is your salary? 14 A. At the University? 15 Q. Let's start with TERA. No problem at all. THE COURT: 16 - - - 18 Thereupon, the following proceeding was held at side-bar: 20 21 22 I'll see you at side-bar, counsel. You may stand by your seats, ladies and gentlemen. 17 19 THE COURT: What's this? I mean, he's connected to TERA. MR. DOUGLAS: He's representing that he works for this 23 nonprofit company, that's looking out for the public health 24 which is -- I'm trying to expose that as being just a facade. 25 57 THE COURT: Did you watch the woman from Planned Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 58 of 307 PAGEID #: 5059 1 Vol. 12 Parenthood testify before Congress that she made 500,000 a 2 year? 3 the fees are always in play. 4 DuPont. 5 You can tell. If this is somebody who was an expert, But he's not being paid by So what difference does the salary make? MR. DOUGLAS: Because Mr. Mace didn't get into 6 betraying the MSS person who is so concerned about the public 7 health I wouldn't get into it. 8 9 10 THE COURT: I'm assuming the head of the Sierra Club makes a lot of money too. What inference would the jury draw from his salary? 11 12 MR. DOUGLAS: That he's not as altruistic as he's painted to be. 13 THE COURT: I just don't see it. There are people who 14 had nonprofits who are not connected to anything to do with 15 industry that make a lot of money. 16 MR. DOUGLAS: Okay. It's not probative. I'll move on. 17 - - - 18 Thereupon, the following proceedings were had in open 19 58 court: 20 THE COURT: 21 MR. DOUGLAS: Mr. Douglas, you may continue. Thank you, Your Honor. 22 BY MR. DOUGLAS: 23 Q. Writing down some notes? 24 A. Yes. 25 Q. Does it have to do with your testimony? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 59 of 307 PAGEID #: 5060 1 2 3 A. Yes. Vol. 12 I wrote down your name so I'd remember it, Mr. Douglas. Q. Sir, I just want to get this straight. You were hired, 4 you say, by the West Virginia Department of Environmental 5 Protection, correct? 6 A. I think -- 7 Q. Your company was? 8 A. I think it was a contractor to West Virginia that 9 approached us. 10 Q. Who was that? 11 A. I don't recall off the top of my head. 12 Q. What kind of contractor? 13 A. A contractor that works for the State of West Virginia. 14 Q. What do they do? 15 A. I don't know. 16 Q. So you get contacted by this contractor and you put 17 together, if I understand correctly, a summary of the studies 18 that you had been provided with from DuPont, right? 19 A. Well, there was two tasks. The first task was for the 20 TERA staff to put together a summary of information on this 21 particular chemical which included available information on 22 literature search. 23 24 25 Q. So the summary -- and then the summaries were put together by TERA, your company, right? A. Right. What we did then is we summarized -- 59 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 60 of 307 PAGEID #: 5061 Vol. 12 1 Q. Just yes or no is fine. 2 A. Yes. 3 Q. Then you took the summaries and you gave them to the 4 5 6 7 8 members of the CATT team? A. The summaries and associated references were given to the CATT team, yes. Q. And then a few weeks passed by and you have this meeting, right? 9 A. Yes. 10 Q. And this meeting lasted a grand total of two days, 11 correct? 12 A. That's correct. 13 Q. And by the end of those two days the CATT team comes up 14 with this number of 150 parts per billion which is 150 times 15 higher than the level which had been set at that time by 16 DuPont, right? 17 18 60 A. I'm not aware of what DuPont had set at that time so I'm not sure how to answer your question, sir. 19 Q. I'll rephrase it for you. 20 A. Okay. 21 Q. So in this two-day meeting where you're discussing all Thank you. 22 of this -- all the summaries and all the scientific literature, 23 whatever it was you were doing, grand total of two days you 24 came up with this 150 parts per billion number, right? 25 A. Well, that forgets the prior three or four weeks the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 61 of 307 PAGEID #: 5062 Vol. 12 1 2 team was studying it. Q. 3 4 THE COURT: Read back the second to last question from Mr. Douglas and we'll let the witness answer. (Thereupon, the last question was read by the court reporter.) 9 THE COURT: 10 THE WITNESS: 11 BY MR. DOUGLAS: 12 Q. 13 Your Honor, I object to the interrupting of the witness. 7 8 So in a matter of three or four weeks and two days -MR. MACE: 5 6 61 And your answer? No. It was a grand total of three or four weeks plus these two days? 14 A. Yes. 15 Q. From the time you were contacted by this contractor, 16 whose name you can't recall, and the time that the CATT team 17 came up with this 150 parts per billion? 18 A. Yes. 19 Q. Now, did I hear you say you didn't know at the time that 20 you did this allegedly comprehensive review that DuPont had 21 already set a level of 1 part per billion? 22 correctly? 23 A. I wasn't sure that I knew that. 24 Q. Are you sure today? 25 A. No. Did I hear that Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 62 of 307 PAGEID #: 5063 Vol. 12 Did Mr. Mace when he spoke to you remind you of that 1 Q. 2 fact? 3 A. He mentioned that fact. 4 Q. So he mentioned the fact but you forgot about it today? 5 A. At the time -- 6 Q. Which -- 7 A. At the time of the meeting I don't remember being aware 8 9 I don't think he -- of that fact. Q. So you wouldn't be aware of, if you were not aware of 10 that fact, that DuPont had already set a level of 1 part per 11 billion for water, you certainly weren't aware of how they 12 derived that number, correct? 13 A. That's correct. 14 Q. And would it be fair to say that at that point in time 15 the folks at DuPont, the time you assembled your CATT team and 16 in this three or four weeks came up with this 150 part per 17 billion number, would it be fair to say that when you were 18 first contacted by this contractor, whose name you can't 19 recall, that DuPont would have known a lot more about C-8 than 20 you, right? 21 A. Before we were contacted, I would presume so, yes. 22 Q. You knew nothing about C-8 at that point in time, 23 correct? 24 A. I wouldn't say that. 25 Q. Since you guys brought it up on the direct examination 62 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 63 of 307 PAGEID #: 5064 1 Vol. 12 63 about whether your company, TERA, is biased, you know the old 2 Shakespeare saying, he doth protest too much? 3 with that saying? You familiar 4 A. Unfortunately, no. 5 Q. Didn't read much Shakespeare? 6 A. Wasn't my strong suit. 7 Q. I didn't do too well in that class either. 8 9 So since you guys brought it up, I have a few questions about it. 10 A. Absolutely. 11 Q. Let's start with how your company was approached. Please do. You 12 don't -- you didn't know that you were handpicked by DuPont to 13 do this work? 14 MR. MACE: 15 THE COURT: 16 Assumes facts. Unless there's a foundation for that question, the objection is sustained. 17 BY MR. DOUGLAS: 18 Q. 19 Objection, Your Honor. Did you know, sir, that you were handpicked by DuPont to do this work? 20 A. No. 21 Q. And speaking of bias, you have been accused, on many, 22 many occasion, of being industry biased. 23 industry. 24 investigative journalists and in consumer interest groups, 25 correct? Biased in favor of Many media reports, investigative reports by Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 64 of 307 PAGEID #: 5065 Vol. 12 1 MR. MACE: 2 THE COURT: Objection, Your Honor. It has to come from the witness, not the 3 attorneys. 4 answers from witnesses that are the only evidence you can 5 consider. Keep in mind questions are not evidence. 6 You may seek your answer. 7 You may answer. 8 THE WITNESS: 9 10 Okay. It's the Thank you. I guess I'm going to have to say no to that because of the way you phrased it. 11 BY MR. DOUGLAS: 12 Q. So you have been the subject of news reports, 13 investigative news reports where you've been accused of having 14 an industry bias. Yes or no? 15 A. Yes. 16 Q. And you've been quoted in a number of these 17 investigative news reports denying wholeheartedly that you are 18 biased in favor of industry, correct? 19 A. I'm hung up on your word numerous. 20 Q. More than one? 21 A. More than one, yes. 22 Q. How many times? 23 A. I'm aware of maybe three. 24 25 Independently -- well, three reports. Q. One of them dubbed you the industry favorite, right? 64 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 65 of 307 PAGEID #: 5066 Vol. 12 1 A. I don't -- 2 Q. You were quoted extensively -- weren't you quoted 3 extensively in an article in which you were referred to as a 4 favorite of industry. 5 journalist. A Pulitzer-Prize-winning news Does that refresh your recollection? 6 A. No, it does not. 7 Q. Why don't we -- 8 A. That would be helpful if you pull it up. 9 MR. MACE: 10 THE COURT: Could we approach, Your Honor? I'll see you at side-bar. 11 You may stand if you wish, ladies and gentlemen. 12 - - - 13 Thereupon, the following proceeding was held at side-bar: 14 15 THE COURT: Do we have the article? And you'd like to -- you would cross him with his own statements? 16 17 65 MR. DOUGLAS: Well, and the matters that he responded to. 18 MR. MACE: But it's pretty extraneous, Your Honor, in 19 using the hearsay statements from some media source. 20 thing to ask him about his statements without displaying the 21 document. 22 document that has hearsay statements by media with nobody I can 23 cross. 24 25 It's one I don't think he should be allowed to display the He wants to bring the reporter in -THE COURT: certainly fair game. I'm with you. His statements in here are And if he can -- I'm sure he's seen the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 66 of 307 PAGEID #: 5067 1 Vol. 12 article but that doesn't necessarily make it admissible. 2 MR. DOUGLAS: 3 THE COURT: 4 MR. MACE: 5 May I lay the foundation? You can try. You're not going to allow him to display it. 6 THE COURT: 7 MR. DOUGLAS: Don't display it. It will not be displayed. 8 - - - 9 Thereupon, the following proceedings were had in open 10 court: 11 MR. DOUGLAS: 12 THE COURT: May I approach, Your Honor? You may. 13 BY MR. DOUGLAS: 14 Q. Do you recognize the article? 15 A. Yes, I do. 16 Q. It's entitled One-stop science shop has become a 17 favorite of industry-and Texas. Is that the article? 18 A. Yes, it is. 19 Q. And you're quoted extensively in this article, correct? 20 A. I'm quoted in the article, correct. 21 Q. And this was in the Pulitzer-Prize-winning news 22 organization Inside Climate News, right? 23 A. I don't -- 24 Q. You don't recall? 25 A. I don't know that. 66 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 67 of 307 PAGEID #: 5068 1 Q. Vol. 12 67 In this article you deny -- you are quoted extensively 2 denying accusations that you are an industry favorite, the 3 go-to guy, the guy who sets these limits really, really high so 4 that industry can just slide right through, right? 5 A. Would you like to point to a particular piece, sir? 6 Q. Absolutely. 7 A. Thank you so much. 8 Q. Do you deny the accusation, second page, one, two, 9 three. 10 You're quoted. third paragraph? 11 12 You see where you're quoted in the THE COURT: You've seen this article, you're familiar with it? 13 THE WITNESS: 14 THE COURT: Yes, sir. Go ahead. 15 BY MR. DOUGLAS: 16 Q. You're quoted on that page, right? 17 A. Line three? 18 Q. Line three. 19 A. Of page two? 20 Q. On page two. 21 A. Right. 22 Q. Below that, and you're responding to an accusation in an Absolutely. 23 investigation by the Center for Public Integrity and Inside 24 Climate News shows your firm has close ties to chemical 25 manufacturers, tobacco companies and other industries. You Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 68 of 307 PAGEID #: 5069 Vol. 12 1 were quoted responding to that accusation and that 2 investigation by the Center for Public Integrity, right? 3 A. That's not correct. 4 Q. Do you see the words -- 5 THE COURT: 6 Go ahead. 7 Wait. I wasn't -- You interrupted. Finish your answer. THE WITNESS: I wasn't responding to accusations. 8 was just being interviewed by a reporter and answering the 9 questions posed by the reporter. 10 BY MR. DOUGLAS: 11 Q. 68 I And the questions had to do -- you were asked about an 12 investigation by the Center for Public Integrity which found 13 that your company had close ties to chemical industry, tobacco 14 industry and other industries, right? 15 16 17 A. not in evidence. Q. 18 19 Well, again, sir, you're asking a question about facts I wasn't -- Are you a lawyer, sir? THE COURT: Let's not get into that. That's beyond what this witness can say. 20 Ask the next question. 21 BY MR. DOUGLAS: 22 Q. The subject matter of your interview was this 23 investigation of your company by the Center for Public 24 Integrity. 25 A. It's right there. That's not correct. Take a look. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 69 of 307 PAGEID #: 5070 1 Q. Vol. 12 69 You see on the paper where it says, an investigation by 2 the Center for Public Integrity. 3 from, sir? You see where I'm reading 4 A. I see that. 5 Q. You see where it says, shows the firm has ties to 6 That's what the -- chemical -- 7 MR. MACE: 8 THE COURT: 9 THE WITNESS: Object to the cutting off of the witness. He didn't finish the answer. Sir, this is written by a reporter. 10 interviewed with the reporter prior to this. 11 with a reporter who asked me questions about TERA. 12 in response to anything in particular. 13 afterwards. 14 wasn't responding to anything along these lines. 15 answering questions of the reporter. I I interviewed It wasn't And I got this And the words that you say are correct but I 16 BY MR. DOUGLAS: 17 Q. I was just But you know that there was an investigation of your 18 company by the Center for Public Integrity in regard to your 19 close ties to the chemical industry, tobacco industry and other 20 industries. You're aware of that? 21 A. There was a report prior to this thing. 22 Q. And there's a report after this thing. 23 A. Is there? 24 Q. Not surprised to hear that? 25 A. Surprised to hear what? Okay. Thank you. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 70 of 307 PAGEID #: 5071 1 2 Q. Vol. 12 70 That there would be other reports of your close ties to the chemical industry? 3 A. You're surprised to hear that? 4 Q. Are you surprised, sir? 5 A. Yes, actually I am. 6 Q. If you go to the next page, I want to ask you about -- 7 A. Sure. 8 Q. 9 -- something else in this article about your company and you. 10 A. Okay. 11 Q. 3 of 9. 12 A. I've got 3 of 12. 13 Q. Are you familiar with the term, quote, whitewashing the Page 3. 14 work of industry, end quote? 15 phrase? 16 A. No. 17 Q. Your firm has been accused of whitewashing the work of 18 Are you familiar with that industry, hasn't it? 19 A. If you say so. 20 Q. That's what you did in your work coming up in this Are you saying -- 21 three-week magical period of coming up with this 150 parts per 22 billion. 23 if you can't answer it yes or no, I'll come up with another 24 question. 25 A. You whitewashed DuPont's C-8 problem, yes or no? No. Affirmatively no. And Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 71 of 307 PAGEID #: 5072 1 Q. Vol. 12 71 In fact, you defended, in this interview, your decision 2 to work with the tobacco industry, right? 3 your prerogative. Which is fine. It's Do you recall defending that? 4 A. I made a comment about a hypothetical. 5 Q. And you said in response to -- in defending your 6 decision to work with the tobacco industry you said, quote, 7 Jesus hung out with prostitutes and tax collectors. 8 dinner with them, end quote, to justify your work with the 9 tobacco industry. He had Were those your words, sir? 10 A. 11 words. I like to get Jesus quotes in as often as I can. 12 Q. In terms of hanging out with prostitutes, are you The premise of your question is incorrect. Those are my 13 analogizing DuPont with the tobacco industry, the companies you 14 work with to prostitutes and tax collectors? 15 16 THE COURT: I don't think DuPont is in this article, so strike that part of the question. 17 THE WITNESS: It was a hypothetical response given to 18 a reporter's question. 19 tobacco industry that they surmised. 20 BY MR. DOUGLAS: 21 Q. The reporter put ties together with And in response you said, in defending your decision to 22 work with tobacco industry, you worked with tobacco industry, 23 correct? 24 25 A. We have taken $85 from Reynolds Tobacco to Xerox some paper for them when they had an issue with chromium when we Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 72 of 307 PAGEID #: 5073 Vol. 12 We charged them for it. I had a 1 were doing work for USEPA. 2 colleague in Philip Morris back in the whatever, back in the 3 late '90s that had a problem with this benchmark dose. 4 model that we can do real well and other people are just 5 learning now and we did that benchmark dose for him and we 6 charged him $550. 7 8 Q. It's a That's our tobacco money intake. We'll talk about some more of your tobacco money and other industry money. 9 A. Okay. 10 Q. But for you, your 550 bucks that you alleged is all you That would be great. 11 got, that's like Jesus hanging out with prostitutes and tax 12 collectors. 13 14 A. That's the quote. The reporter put two different disparate ideas together in that quote. 15 Q. So you say it's taken out of context? 16 A. I don't know what to say. 17 Q. I didn't think so. 18 A. Yeah. 19 Q. And you said in that article entitled favorite of 20 21 22 23 industry, we get criticized by everyone. A. There have been times where we've been criticized by everyone. Q. That's true, right? That's true. Sir, I want to show you P3232 in regard to my questions 24 before about how you became the one that was selected to do 25 this work that took two or three weeks or three or four weeks. 72 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 73 of 307 PAGEID #: 5074 1 Vol. 12 73 I want to show you a document from DuPont, an e-mail P1.3232. 2 MR. DOUGLAS: 3 THE COURT: May I approach, Your Honor? You may. 4 BY MR. DOUGLAS: 5 Q. Do you know Timothy Bingman? 6 A. I don't think so. 7 Q. You see here we have an e-mail from Timothy Bingman 8 August 21st, 2000 to Robert Rickard. 9 Rickard? Do you know Robert Bobby Rickard as he's referred to? 10 A. I think I do know him. 11 Q. He's sitting right here, right? 12 A. Yes, I do. 13 Q. How do you know him? 14 A. Society of Toxicology meetings. 15 16 17 How do you know him? Probably in the last four or five years I've gotten to know him from that. Q. You don't know him -- you didn't know him prior to four or five years ago, sir? 18 A. I don't think so. 19 Q. I'm sorry? 20 A. I apologize to Mr. Rickard. 21 Q. You see where it says prospective contractors for PFOA 22 criteria review. I apologize. See that? 23 A. Sure. 24 Q. And you see where it says Bobby/Jerry. 25 Dr. Rickard, do you call him Bobby? When you see Are you on first-name Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 74 of 307 PAGEID #: 5075 Vol. 12 1 basis? 2 A. I wouldn't do that, Mr. Douglas. 3 Q. So you haven't. So when you see him at the toxicology 4 meetings, or whatever organization you've seen him, you call 5 him Dr. Rickard? 6 A. Well, usually it's Society of Toxicology meetings it is 7 a first-name basis. 8 don't know if it's a doctor or not, I'll go with either first 9 name or mister or miss. 10 Q. If I don't know the person well, and I So you see it says as a follow-up to the go-do I had 11 from this morning's meeting I've talked to a number of 12 colleagues that use external toxicity peer review services to 13 see who they like as contractors. You see that? 14 A. Yes, I do. 15 Q. You do toxicity peer review, right? 16 A. Yes, we do. 17 Q. That's what we're talking about here in terms of the 18 19 20 21 work you did with the CATT team, right? A. That was actually more risk assessment development but we also do reviews. Q. And it says, one person from another chemical company 22 that used to work on the EPA's criteria office in Cincinnati 23 said that -- let's go back. 24 25 74 Sorry. While everyone had a few names to offer, talking about a potential outside contractor, right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 75 of 307 PAGEID #: 5076 Vol. 12 1 A. Yes. 2 Q. The common theme that emerged was that TERA, i.e. Mike 3 Dourson. Is it Dourson or Dourson? 4 A. Dourson is okay. 5 Q. The common theme that emerged -- let's underline common 6 theme -- that emerged was that TERA, Mike Dourson, was the 7 leading choice. You see that? 8 A. Yes. 9 Q. And so it goes on to say, one person from another 10 75 chemical company -- you see where I'm reading from? 11 A. Yes. 12 Q. So this is folks from chemical companies talking about 13 who's the go-to guy, who's good to use, what company should we 14 hire, right? Is that apparent from what I just read? 15 A. I haven't read it all yet. 16 Q. One person from another chemical company that used to 17 work in the EPA's criteria office in Cincinnati said that Mike 18 enjoys a very good reputation among the folks that are still in 19 the business of blessing criteria. 20 Can we underline blessing criteria? 21 That's sort of like that whitewashing term, right? 22 A. I wouldn't say that, but okay. 23 Q. You've heard the term blessing criteria, right? 24 A. Actually I haven't. 25 Q. It goes on to say, other added benefits besides the You do. Go ahead. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 76 of 307 PAGEID #: 5077 1 Vol. 12 blessing criteria -- you know what the word blessing means, 2 right? 3 A. Yeah. I think so. 4 Q. Okay. You know, Jesus blessed people, right? 5 A. Right. 6 Q. And it goes on to say, other added benefits that were 7 identified for TERA were their ability to put together an 8 independent peer review panel to oversee their findings; and, 9 two, their ability to assemble, a, quote, package, and then 10 sell this to EPA or whomever we desired. 11 See where I'm reading from? 12 A. Yeah. 13 Q. You sell things to the EPA, is that what you do? 14 A. No. 15 Q. So they got it wrong here when they were under the 16 impression that one of the reasons you should be hired is 17 because you're able to sell packages to the EPA. 18 wrong, you don't sell stuff? 19 A. Toxicology Excellence for Risk Assessment doesn't 20 advocate for any position. 21 got it wrong. 22 Q. We just do the science. You're correct. In the same way, sir -- 23 MR. DOUGLAS: 24 THE COURT: 25 They got it May I, Your Honor? Yes. So they 76 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 77 of 307 PAGEID #: 5078 Vol. 12 1 BY MR. DOUGLAS: 2 Q. You heard the Judge instruct the jury about this finding 3 of the science panel of .05 parts per billion being capable of 4 causing cancer, sir. 5 that you got it wrong. 6 integrity not only got it wrong, you got it wrong by 3,000 7 times higher than this .05 parts per billion. So they got this wrong in the same way Your great company, full of all this Not even close. 8 A. What's this scientific -- what's this science based on? 9 Q. I ask the questions, sir. 10 77 Do you have an answer for me? If you can't answer the question, I'll ask you another one. 11 A. What's the question, please? 12 Q. You got it wrong, sir. This number you came up with in 13 three or four weeks following this discussion with Dr. Rickard 14 about blessing criteria, your number of 150 parts per billion, 15 would you agree, mathematically speaking, is 3,000 times higher 16 than this number here, .05 parts per billion? 17 MR. MACE: 18 THE COURT: 19 22 Compound. Assumes facts. Let me see you at side-bar. You may stand by your seats, ladies and gentlemen. - - - 20 21 Objection. Thereupon, the following proceeding was held at side-bar: MR. MACE: The objection is that his question is 23 compound. 24 crudity that he's showing to the witness. 25 with respect to the compound that he had assumed the fact that It assumes facts. I also strongly object to the And particularly Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 78 of 307 PAGEID #: 5079 1 he had a discussion with Rickard. 2 before. Vol. 12 He never saw the e-mail It's an e-mail, not a discussion. 3 MR. DOUGLAS: 4 THE COURT: It's misphrased. I can rephrase it. That e-mail is coming in, I'm sure. 5 this witness never did say he ever saw it before. 6 that. 7 8 MR. DOUGLAS: But We're past I have no further questions on the e-mail. 9 THE COURT: I want to be clear. I don't like to harp 10 about this but there's sometimes I will weigh in but I'm not 11 going to cover everything that's objectionable. 12 the lawyers have to do on both sides. 13 frustrating where I sit. 14 15 MR. DOUGLAS: That's what Sometimes it's But I'm supposed to be neutral. Sometimes we can get the sense from the Court that maybe counsel should stand up and object. 16 THE COURT: That issue is number one. But here's the 17 bigger concern I have. 18 there. 19 the more he's being crossed as if he's an expert. 20 21 22 Bias is always fair game. No argument But the more we get into the findings and the science, MR. DOUGLAS: Well, he's been called here to testify that this was the best science available, this 150 -THE COURT: I get that. And the process up to this 23 point has gotten into how he was picked, how it was conducted, 24 that sort of thing. 25 But the more we get into him versus the science panel we're That's exactly what you're allowed to do. 78 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 79 of 307 PAGEID #: 5080 1 Vol. 12 79 going to be talking about his expertise and then we're going to 2 get into opinions is my fear. 3 MR. MACE: So I would caution you on that. And to correct his statement that the 4 direct was on best science available at the time when he did 5 the work in 2002. 6 He's way beyond the scope of direct. He was here for a very limited purpose. 7 MR. DOUGLAS: 8 this was not the best science. 9 should be free -- and it wasn't reasonable. 10 I'll address that. The whole point is This was junk science. I Therefore, for a company to believe the industry should -- 11 THE COURT: That's what the jury is going to have to 12 decide. 13 We're going to take a 15 minute break and you can start again. 14 - - - 15 Thereupon, the following proceedings were had in open 16 But at this point there's nothing pending right now. court: 17 THE COURT: 18 recess. 19 gentlemen. 20 We are right up to our 15-minute morning We'll see you back in 15 minutes, ladies and (A recess was taken at 10:30 a.m. until 10:47 a.m.) 21 THE COURT: 22 MR. DOUGLAS: Mr. Douglas, you may continue. Thank you, Your Honor. 23 BY MR. DOUGLAS: 24 Q. You discussed that your firm TERA has a website, right? 25 A. We have several, yes. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 80 of 307 PAGEID #: 5081 1 Q. Vol. 12 And it's had a website or several websites for years? 2 A. Yes. 3 Q. Take a look, since this came up during your questioning 4 on direct examination by Mr. Mace, I want to take a look at 5 some of that. 6 Can we have the 2012? 7 MR. DOUGLAS: 8 THE COURT: 9 10 80 May I approach? You may. BY MR. DOUGLAS: Q. Before we get to it, you recall you were asked some 11 questions on direct examination about the source of funding for 12 your company by Mr. Mace. 13 website, right? He produced a table that's from your 14 A. That's correct, yes. 15 Q. This is also -- what I've handed you is from your 16 website? 17 A. Yes. 18 Q. I want to put it up on the Elmo. 19 project time by sponsor. You see it's a 2012 You see where it says that? 20 A. Yes. 21 Q. So, first of all, it says, 2012 and it's 40 percent for 22 profit. 23 A. Yes. 24 Q. So we had, first of all, we had Dr. Siegel from the 25 You see that? Boston University School of Public Health here testified. If Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 81 of 307 PAGEID #: 5082 1 Vol. 12 81 somebody had suggested to him that your source of funding from 2 industry was only 1 percent, that would be completely and 3 utterly inaccurate, right? 4 A. I'm sorry, the question again? 5 Q. If somebody were to infer to our jurors that TERA 6 receives only 1 percent of its funding source from industry, 7 that would be misleading? 8 A. That's misleading. 9 Q. So some of your clients are Drinker, Biddle & Wreath. 10 You see that? 11 A. Yes. 12 Q. They're a law firm, right? 13 A. Could be. 14 Q. They are a law firm. 15 A. Sure. 16 Q. -- of that fact? 17 Will you take my representation -- And they're a law firm, sir, that defends chemical 18 companies and pharmaceutical companies in lawsuits just like 19 this. Did you know that? 20 A. Do I recall that? 21 head. 22 Q. You know what Amgen is, right? 23 A. I think it's a company that does pharmaceuticals. 24 Q. That's one of the sources of your funding is Amgen, a 25 pharmaceutical company? It's on your website. I don't recall that off the top of my Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 82 of 307 PAGEID #: 5083 Vol. 12 1 A. That's correct. 2 Q. That's what you're saying here on your website. You 3 look like you've never seen this before. 4 before? 5 A. I've seen this before. 6 Q. You helped put it together but you can't remember who Have you seen it I helped put it together. 7 Drinker, Biddle is, the very first list of the top of the 8 companies that provide 40 percent of your source funding; is 9 that right? 10 11 A. Do I have that correct? You've confused me, sir. I'm sorry. It's a company that we -- 12 Q. You're confused now, sir? 13 A. It's a company we did work for in 2012. 14 specific question about them and I don't recall those details. 15 Q. ACI. 16 A. Right. 17 Q. Is that an industry outfit? 18 A. It's industry related. 19 Q. Eli Lilly. 20 23 We've all heard of Eli Lilly. Another pharmaceutical company. 21 22 You asked me a NIPERA. A. What's NIPERA? Nickel producers -- Nickel Institute for -- something associated with the nickel institute. 24 Q. That's another industry outfit? 25 A. Yes. 82 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 83 of 307 PAGEID #: 5084 Vol. 12 1 Q. PPG? 2 A. I think they just refer to them as PPG Industries. 3 Q. They're another industry outfit? 4 A. Absolutely. 5 Q. And American Petroleum -- I want to take you through They're all industry. 6 some of the companies that your company has done work for and 7 one of them is the American Petroleum Institute, right? 8 A. That's correct. 9 Q. That's an industry organization, petroleum industry, 10 right? 11 A. That's correct. 12 Q. Let's do the 2013. 13 MR. DOUGLAS: 14 THE COURT: 15 BY MR. DOUGLAS: 16 Q. 17 May I approach, Your Honor? You may. Sir, you recognize what you've just been handed as another page from your website? 18 A. That's correct. 19 Q. That you helped put together, right? 20 A. Yes, I did. 21 Q. You'll see it's from 2013 for profit. 22 right? 23 A. That's correct. 24 Q. And again we see American Cleaning Institute, Amgen 25 37 percent, again, American Chemistry Council, Eli Lilly again and 83 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 84 of 307 PAGEID #: 5085 Vol. 12 1 Genentech. You see that? 2 A. Yes, I do. 3 Q. Genentech is a chemical company. 4 84 You saw Amgen. What is Genentech? 5 A. I think it's a pharmaceutical company. 6 Q. Sir, you've written in the peer review I think you said 7 you lost count after 100, right, contributed to the peer review 8 literature? 9 A. Yes. 10 Q. And do you recall an article entitled Peer consultation 11 on relationship between PAC profile and toxicity of petroleum 12 substances? 13 A. Yes, I do. 14 MR. DOUGLAS: 15 THE COURT: 16 BY MR. DOUGLAS: 17 Q. May I approach, Your Honor? You may. We talked before about conflicts of interest. Do you 18 recall that when you were asked by Mr. Mace, what is a conflict 19 of interest? 20 A. Yes. 21 Q. And sort of the same idea of disclosure is in 22 acknowledgments that would be in a peer review journal, if 23 there are any, you would list them, right? 24 A. Right. 25 Q. Could we put the title page, please? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 85 of 307 PAGEID #: 5086 Vol. 12 85 This is the article that I just asked you about, right? 1 2 A. Yes. 3 Q. And that's you, you authored this article? 4 A. Yes, sir. 5 Q. And if you just go to the second to last page, I think 6 it's the second to last, you'll see a section, conflict of 7 interest and below that, acknowledgments? 8 A. Yes. 9 Q. You see that? And it says, the American Petroleum 10 Institute, on behalf of the Petroleum High Production Volume 11 Testing Group, provided TERA with financial support for the 12 peer consultation meeting and preparation of the manuscript. 13 You see that? 14 A. Yes. 15 Q. You've written an article called The importance of 16 problem formulations in risk assessment: 17 involving dioxin-contaminated soil. 18 A. A case study You recall that? Yes, I do. 19 MR. DOUGLAS: 20 THE COURT: May I approach? You may. 21 BY MR. DOUGLAS: 22 Q. You have the article in your hand right now? 23 A. Yes, I do. 24 Q. I have it displayed on the Elmo. 25 Thank you. the lead author on this? And that's you, you're Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 86 of 307 PAGEID #: 5087 Vol. 12 1 A. Yes, I am. 2 Q. And if you go to, again, the second to last page. 3 Acknowledgment. 4 right? 5 A. Yes. 6 Q. The authors wish to thank Robert Budinsky of the Dow The authors wish -- you're one of the authors, 7 Chemical Company for his thoughtful comments on the early 8 drafts. 9 A. Yes, I do. 10 Q. By the way, you've received financial remuneration from You see that? 11 the Dow Chemical Company over the years, right? 12 has? 13 A. On this particular paper? 14 Q. Not asking about this particular paper. Your company Over the years 15 your company, TERA, has received financial remuneration from 16 Dow Chemical Company? 17 A. For several projects, yes. 18 Q. And you authored a piece called Crystallographic 19 Analysis and Mimicking offers Estradiol Binding: 20 Interpretation and Speculation. 21 22 A. Do you recall that article? I'd have to see that to make sure. That sounds like letters to the editor. 23 Q. Well, I misspoke. 24 A. Right. 25 Osimitz. 86 It's a letter to the editor. And that was by Tom, the lead author, Thomas Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 87 of 307 PAGEID #: 5088 Vol. 12 1 Q. Why don't I just give you a copy of it. 2 A. That works, yeah. 3 MR. DOUGLAS: 4 THE COURT: Thanks. May I approach? You may. 5 BY MR. DOUGLAS: 6 Q. Is that the article you had in mind? 7 A. Yeah. 8 Q. The letter. 9 That's the letter to the editor. Excuse me. Let's put that up on the Elmo. This is the title of the article, right, the letter? 10 A. Right. 11 Q. And that's you? 12 A. Right. 13 Q. Signing off as one of the people signing off on the 14 letter, right? 15 A. Yes. 16 Q. And it says, the work was supported by the North 17 American Flame Retardant Panel of the American Chemistry 18 Council which previously provided funding for travel expenses 19 and honoraria to the authors as members of NAFRA. 20 You see that? 21 A. Yes. 22 Q. So it would be another industry organization who has 23 supported or funded your work, right? 24 A. The TERA work, right. 25 Q. Just a moment. 87 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 88 of 307 PAGEID #: 5089 Vol. 12 1 A. No worries. 2 Q. You authored an article with a Dr. Samuel M. Cohen who 3 we're going to hear from in a little while called Linear 4 low-dose extrapolation for noncancer health effects is the 5 exception, not the rule. 6 A. Yes, I do. 7 MR. DOUGLAS: 8 THE COURT: 9 Do you recall that? May I approach? You may. BY MR. DOUGLAS: 10 Q. You have it in your hand, sir? 11 A. Yes, I do. 12 Q. First I want to ask about this fellow, Samuel M. Cohen. 13 You know him? You co-authored an article with him. 14 A. I know him. 15 Q. How long have you known Dr. Cohen? 16 A. I've known of him for probably a dozen years. 17 18 19 Working with him is infrequent. Q. Did you know that he is a retained expert for DuPont in this case? 20 A. No. 21 Q. Is that the first you're hearing of it? 22 A. Yes. 23 Q. He's going to take that very witness chair when you are 24 done? 25 A. You didn't know that? I didn't know that. 88 Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 89 of 307 PAGEID #: 5090 1 Q. Vol. 12 89 And if you go to, I believe, again, the second to last 2 page, it might be the third to last page, under acknowledgments 3 and declaration of interest. 4 that you wrote or co-authored with Dr. Cohen, this paper was 5 prepared with financial support provided by the American 6 Chemistry Council to Gradco LLC doing business as Gradient. 7 You'll see it states, this paper You see that? 8 A. Yes. 9 Q. That's another industry company that's funded your 10 company TERA, correct? 11 A. Yeah. 12 Q. Right. 13 A. Right. 14 industry. The American Chemistry Council through Gradient. Gradient is a consulting group, it's not That's correct. 15 Q. We could go all day. 16 A. Sure. 17 MR. DOUGLAS: 18 THE COURT: I'll just do one more. May I approach, Your Honor? You may. 19 BY MR. DOUGLAS: 20 Q. You recognize what you are holding in your hand, sir? 21 A. Yes, I do. 22 Q. What is that? 23 A. A paper that was just recently published in the Journal 24 of Toxicology by my co-authors Rhian Cope who is now with the 25 Australian Authority for Medical Veterinary Sciences, Sam Kacew Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 90 of 307 PAGEID #: 5091 Vol. 12 1 2 up at the University of Ottawa and myself. Q. If you go to the acknowledgments in this article. It 3 states, this research is performed by scientists with the MPI 4 Research located on North Main Street in Mattawan, Minnesota 5 (sic). 6 Retardant Industry Panel of the American Chemistry Council 7 located at 700 Second Street in Washington, D.C. This research is sponsored by Brominated Flame You see that? 8 A. Yes, I do. 9 Q. That's another company, another industry organization 10 90 that you have worked with, sir; is that correct? 11 A. That's correct. 12 Q. We could go through many, many more of your articles and 13 there are dozens of different chemical industry, pharmaceutical 14 industry and other industries that you have worked with over 15 the years, right? 16 A. 17 18 That's correct. THE COURT: Counsel, let me see you at side-bar for just a moment. 19 You may stand by your seats, ladies and gentlemen. - - - 20 21 Thereupon, the following proceeding was held at side-bar: 22 THE COURT: We've got a juror pretty much completely 23 out. 24 We had said we've got eight, seven or six. 25 I'm thinking of -- I'm think about maybe excusing him. MR. PAPANTONIO: Which one is it? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 91 of 307 PAGEID #: 5092 1 2 Vol. 12 91 If you're looking at the front row, two in THE COURT: from the left. 3 MR. DOUGLAS: 4 THE COURT: 5 MR. DOUGLAS: Blue shirt. Yes. Judge, if I can be heard on this. What 6 I noticed is he's almost, I call it the hound dog effect. 7 almost as if he's sleeping and all of a sudden he'll pop up and 8 he'll start taking notes. 9 THE COURT: I noticed that, too. It's I can't tell if he's 10 completely out or not. 11 anybody to decide the case who hasn't heard the whole case. But I am concerned. 12 MR. PAPANTONIO: 13 THE COURT: We are very concerned about that. That's why I keep doing this. 14 working. 15 noticed it seems to have no effect. 16 17 None of us want It's not Usually with most people it shakes them up a bit. MR. MACE: What I have seen with jurors that they're still listening even though their eyes are closed. 18 THE COURT: 19 MR. PAPANTONIO: That's what we never know for sure. Judge, here's what I've noticed also. 20 There are two jurors that keep looking down at him when he's 21 asleep almost as if they want to wake him up. 22 THE COURT: 23 MR. PAPANTONIO: 24 THE COURT: 25 I Right. I noticed that, too. That's a very big concern of ours. We can address that maybe at 5:00 today but I'm thinking the other option would be for me to take him Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 92 of 307 PAGEID #: 5093 1 Vol. 12 in and just ask him is there anything we can do to help you, 2 can you bring some coffee in with you. 3 medicated, he's not doing this deliberately. 4 5 MR. MACE: him, Your Honor. 6 My guess is he's We have no objection to your talking to Obviously in a discreet manner. THE COURT: I'd do it privately unless there's an 7 objection I'd just bring him in. 8 MR. PAPANTONIO: Why don't we do that? Judge, can we talk about it a little 9 bit more before we do that? 10 THE COURT: 11 MR. PAPANTONIO: All right. But we have the same concerns. But 12 so what we've been trying to put everything together and what 13 we are observing is he keeps -- the other jurors keep looking 14 at him like wake up. 15 THE COURT: 16 MR. MACE: 17 Yes. That's my observation as well. I haven't observed that, for the record. have not observed that. 18 THE COURT: Thank you. 19 - - - 20 Thereupon, the following proceedings were had in open 21 court: 22 92 THE COURT: Mr. Douglas, you may continue. 23 BY MR. DOUGLAS: 24 Q. Just a few more questions. 25 A. Sure. I Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 93 of 307 PAGEID #: 5094 1 2 3 Q. Vol. 12 93 Sir, you would agree that risk assessment is an inexact science? A. Risk assessment is like a logic problem. It falls into 4 different disciplines of toxicology, epidemiology and other 5 disciplines, medical science. So it's imprecise. 6 Q. So you would agree that it's an inexact science? 7 A. Well, I think my views have changed a little bit over 8 9 10 11 12 13 14 15 the years but inexact is another way to say it, perhaps. Q. You've written an article entitled The inexact science of risk assessment and implications for risk management, right? A. Yes. That was back in the late '90s, I believe. is why I made the statement my views have changed somewhat. Q. I'm going to ask you about some of the views you've expressed in that article. A. Thank you. 16 MR. MACE: 17 THE COURT: Your Honor, may we approach? I'll see you again at side-bar. 18 You may stand if you wish, ladies and gentlemen. 19 - - - 20 Which Thereupon, the following proceeding was held at side-bar: 21 THE COURT: 22 MR. MACE: Mr. Mace. Counsel has been dancing over the line but 23 now he's clearly crossing it asking opinion testimony that he's 24 excluded me from getting into with him. 25 the door to this. If he wants to open Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 94 of 307 PAGEID #: 5095 1 THE COURT: 2 MR. DOUGLAS: Is this the article? Vol. 12 94 How do you respond? The same way I responded before the 3 break, Your Honor. 4 here to testify about reliable -- he asked the witness to vouch 5 for the reliability. 6 and therefore it goes to the reasonableness of the company 7 relying on it. 8 9 10 This witness was portrayed, was brought THE COURT: different study. Whether that question was objectionable I get that. But the trouble is this is a This is a general attack, not attack but it's a limiting as far as so it doesn't go to this particular study. 11 MR. DOUGLAS: I'll move on. 12 - - - 13 Thereupon, the following proceedings were had in open 14 court: 15 THE COURT: 16 BY MR. DOUGLAS: 17 Q. Mr. Douglas, you may continue. You received that award there you brought with you to 18 court today from the West Virginia Department of -- from the 19 West Virginia DEP? 20 A. Yes. 21 Q. May I see it, please? 22 A. Sure. 23 MR. DOUGLAS: 24 THE COURT: 25 If you would. May I approach? The deputy clerk would give it to you. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 95 of 307 PAGEID #: 5096 Vol. 12 - 95 1 BY MR. DOUGLAS: 2 Q. Did it come framed or did you have it framed? 3 A. I framed it. 4 Q. Did somebody ask you to bring it with you today? 5 A. Yes. 6 Q. Was that before or after you were subpoenaed to be here? 7 A. That was before. 8 Q. By the way, this subpoena is really just a charade for 9 the jurors, right? 10 A. I'm not sure what you mean. 11 Q. We talked before that you intended to come here even 12 before you were served with a subpoena. 13 testimony earlier? 14 A. You recall that I think the question was, I talked to Mr. Mace. I'll 15 try to get this correct. 16 about questions of what we had in our file and then subsequent 17 to that, Mr. Mace indicated that there might be a trial and the 18 trial would be somewhere in the range of the end of September 19 so would you please consider holding that week available. Talked to Mr. Mace several months ago 20 Q. And you did hold the week available? 21 A. The first three days available. 22 And then last week I found out it was going to be today. 23 Q. When did you find out it would be today? 24 A. Last week. 25 Q. Last week. So you've been planning to be here for quite Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 96 of 307 PAGEID #: 5097 Vol. 12 1 a while, right? 2 A. No. 3 Q. Well, you were planning to be here before you were even 4 served with the subpoena? 5 A. Yes. 6 Q. Weeks before, right? 7 A. I'm not sure what you mean by planning. 8 9 Q. Well, I think it's pretty simple but maybe I'm not being articulate enough. 11 week? 12 A. Right. 13 Q. Right? 15 16 17 I have it on my schedule. 10 14 You did tell us that you set aside this You planned on being -- you understand the word planned? A. It has -- planning is putting it on the schedule and preparing for it. Q. So you cooperated with Mr. Mace in setting aside time 18 three days out of this week to potentially testify at this 19 trial? 20 A. Yes. 21 Q. And you grabbed your little certificate here you got 22 96 from the DEP of West Virginia, right? 23 A. Yes. 24 Q. So you could show the jurors, hey, I got a certificate, 25 right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 97 of 307 PAGEID #: 5098 1 2 MR. MACE: THE COURT: Listen, about side-bar, the objection is sustained. 5 BY MR. DOUGLAS: 6 Q. Sir, were you told to bring your certificate? 7 A. I was not told to bring it. 8 9 I was -- it was asked if I would bring it and I said yes. Q. Sir, this has to do -- you were given this certificate 10 for the work you did when you came up with this 150 parts per 11 billion, right? 12 A. We got the certificate for the work we did to 13 scientifically evaluate the information and came up with a 14 scientifically-based number. 15 Q. Which was 150 parts per billion? 16 A. For oral exposure, that's correct. 17 Q. Which was 150 times higher than what DuPont had already 18 97 nature of these questions, the whole attitude. 3 4 Vol. 12 Your Honor, I object to the demeaning set at the time you did your work, right? 19 A. That may or may not be true. 20 Q. You know that other states and other offices of 21 Environmental Protection have done risk assessments over time 22 both before and after your work? 23 A. Yes. 24 Q. And being naturally and intellectually curious, I'm sure 25 you're aware of these other results, right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 98 of 307 PAGEID #: 5099 1 A. Vol. 12 98 I'm aware in general terms of these other results, yes. 2 Q. I want to share a few of them with you for a moment. 3 Okay? 4 A. Certainly. 5 Q. I'm going to -- do we have that slide? 6 Bobby Rickard, Dr. Rickard had a report in this case and 7 he summarized all of the other risk assessment values that have 8 been done over the years. I'll just ask you to assume that. 9 A. Okay. 10 Q. My question was, were you aware of that, that 11 12 Dr. Rickard prepared a report in this case? A. I'm not aware of that report. 13 MR. DOUGLAS: 14 THE COURT: 15 MR. MACE: With counsel's permission. Any objection, Mr. Mace? As long as it's clear this is not -- this 16 slide is not out of Dr. Rickard's report. 17 counsel created. 18 BY MR. DOUGLAS: 19 Q. It's something What this is, is the values were taken from 20 Dr. Rickard's report, which we'll establish when he testifies, 21 and summarized on this table that we did create, but taken from 22 his report. 23 24 25 So this is C-8 risk assessments over time for drinking water per Dr. Rickard's report dated January 27, 2015. THE COURT: Take that down while they're talking. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 99 of 307 PAGEID #: 5100 1 MR. MACE: 2 an error. 3 later. 4 But he can use it. THE COURT: 5 BY MR. DOUGLAS: 6 Q. 7 Vol. 12 99 Let me just note for the record, I noticed We'll just point out the error Put it back up. You see in 1988, DuPont had set a level of 1 part per billion. We talked about that, right? 8 A. Yes. 9 Q. So your number, and by simple math of 150 parts per 10 11 We talked about it. billion, would be 150 times higher than that, right? A. Well, you're making a comparison on the basis of one's 12 science generated and one is not. 13 is appropriate. 14 Q. I don't think the comparison Sir, let's just do the math and let the jury decide 15 what's science based. 16 150 times higher than 1 part per billion, correct? Your number of 150 parts per billion is 17 A. Again, sir, you're comparing different things. 18 Q. Sir, is 150 parts per billion 150 times higher than 1 19 part per billion? 20 A. That's easy to answer. 21 Q. Thank you. It is. And in 2002, Environ, a DuPont contractor, 22 had set a risk assessment of 14 parts per billion. 23 to ask you to assume that. I'm going Were you aware of that? 24 A. I don't believe so. 25 Q. And that would be, if my math is correct, 14 parts per Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 100 of 307 PAGEID #: 5101 Vol. 12 - 100 150 parts per 1 billion or -- let's do it the other way around. 2 billion is more than ten times higher than 14, right? 3 number you got was over ten times higher than Environ, right? 4 A. That's correct. 5 Q. Not even close, right? 6 A. Is that a question? 7 Q. Yeah. Those two numbers are not close. So the Something 8 that's ten times higher than another value is not close. 9 you're having trouble, I'll move on to another question. 10 11 12 A. If You're, again -- I don't know the basis of the Environ 2002 assessment. Q. They're all based on the same available information that 13 was out there that you based your -- that TERA found 150 parts 14 per billion, right? 15 MR. MACE: 16 THE COURT: 17 BY MR. DOUGLAS: 18 Q. Objection. Compound. Assumes facts. Rephrase the question. Let's just move on to Minnesota Department of Health. 19 Were you aware that they had formed a risk assessment and came 20 up with a value of 7 parts per billion in water? 21 A. I wasn't aware of that in 2002. 22 Q. But 150 parts per billion would be 20 times higher than 23 7 parts per billion, right? 24 A. If we're comparing just strictly numbers. 25 Q. Just numbers, sir? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 101 of 307 PAGEID #: 5102 1 A. 2 math. 3 Q. Vol. 12 - 101 And assuming nothing else, then, sure, you could do the It's easy. So the North Carolina Division of Water Quality found a 4 value limit of 2 parts per billion in water. 5 that? 6 A. No. 7 Q. And 150 parts per billion would be 75 times higher, sir, 8 than 2 parts per billion, right? 9 A. Simple math. 10 Q. We can go down the list. Were you aware of Simple math? You'll see Minnesota set a 11 limit of 1.5. 12 revisited the subject and lowered theirs to 1 part per billion. 13 And then were you aware of the Maine Center of Disease Control 14 set a value of .1? Again, in 2013, North Carolina Division of Water Were you aware of that, sir? 15 A. I'm not aware of that. 16 Q. Sir, did you know that the New Jersey Department of 17 Environmental Protection set a limit of .04 parts per billion? 18 .04, that's even lower than this .05 in 2006. 19 that. 20 A. I wasn't aware of that. 21 Q. Your value of 150 was a number, 150 parts per billion is 22 23 24 25 Did you know 3,500 times higher than the value of .04. THE COURT: Counsel, let me see you at side-bar. You may stand if you wish, ladies and gentlemen. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 102 of 307 PAGEID #: 5103 Vol. 12 - - - - 1 2 102 Thereupon, the following proceeding was held at side-bar: 3 THE COURT: So this was a process witness as I 4 understood, not an expert, and the process arguably would 5 include what did you do before you came up with these numbers. 6 But this is a 2002 report. 7 that play into this witness? 8 9 10 MR. DOUGLAS: of the methodology. How do the numbers that come after I think it still goes to the reliability The result is so far off from every other organization that has ever looked at it. 11 THE COURT: You mean all the ones. A number of these 12 were in existence before they completed their study. 13 issue with that. 14 But there are things that come after. MR. DOUGLAS: I think it still goes to the issue of 15 getting it right and how unreliable this was. 16 reasonable. 17 THE COURT: 18 standard. 19 process? 20 I have no It was not Then what he's testifying to is the I thought we agreed he was testifying as to the MR. DOUGLAS: It is about the process. What I'm 21 demonstrating is by virtue of the fact that his calculation was 22 so off the reservation is that it wasn't reliable and it wasn't 23 reasonable for the company to rely on it. 24 25 MR. MACE: It's so outlandish. I think he's opened the door pretty broad in this, Your Honor, and showing that slide I'm entitled to Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 103 of 307 PAGEID #: 5104 Vol. 12 1 refer back to that slide now. 2 THE COURT: Obviously. I wouldn't argue that point. 3 It's been used. 4 doesn't go to -- it doesn't go to -- it goes to the 5 reasonableness of the work done. 6 can consider. I'm inclined to tell the jury that this 7 MR. DOUGLAS: 8 THE COURT: 9 That's the only basis they That's what I'm offering it for. I'd also not go along if you tell me to. But it would be the defendant that's asking for it. 10 MR. MACE: 11 THE COURT: 12 MR. PAPANTONIO: 13 number two one time had to nudge. I'm not asking for it. Very good. 14 THE COURT: 15 MR. PAPANTONIO: One other thing. The juror next to I started watching. The nudging is probably a good thing. It is. It is. But I've been 16 thinking about the last conference, the last time we talked 17 about this. 18 have the Court say, you got to stay awake, because he doesn't 19 know where that comes from. 20 this, I literally saw -- 21 could do it. 23 it. 25 I think we're really prejudiced, both sides, to MR. MACE: 22 24 103 And if we can continue to monitor I think the courtroom deputy or somebody I have no problem if one of the court staff does THE COURT: I'd be more concerned about that. of all, my bailiff isn't here. First I know this fill-in bailiff Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 104 of 307 PAGEID #: 5105 1 Vol. 12 - 104 really well but that's not part of what they're used to doing. 2 I also thought maybe let them bring coffee in. 3 4 MR. MACE: good idea. We have no objection to that. I'd like to bring some myself, Your Honor. 5 THE COURT: 6 MR. PAPANTONIO: 7 has been missed. 8 9 Probably a It doesn't apply to anybody else. What I'm concerned about is how much I really am very much concerned. MR. MACE: I think Your Honor has been monitoring that pretty well. 10 THE COURT: 11 Sometimes it doesn't. 12 going to do anything. I'm trying to. Sometimes it works. We'll continue. Right now we're not 13 - - - 14 Thereupon, the following proceedings were had in open 15 court: 16 THE COURT: 17 BY MR. DOUGLAS: 18 Q. Mr. Douglas, you may continue. So what I'm getting at is the reliability of your work 19 that you did back then and, sir, this is not the first time 20 that your risk assessment was very different than other 21 agencies or governmental agencies for other chemicals; is that 22 right? 23 A. That's correct. We did something for the State of West 24 Virginia just last year and we lowered the number by eight 25 fold. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 105 of 307 PAGEID #: 5106 1 2 Q. Well, I'm talking about Alachlor. Vol. 12 - 105 Remember your company did work on Alachlor? 3 A. Alachlor, I'm sorry. 4 Q. Just a moment. 5 A. That's okay. 6 Q. Thank you. 7 A. It's not always easy. 8 Q. You remember that your company, TERA, reviewed studies 9 Acetochlor? Take your time. that suggested serious health risks with respect to drinking 10 water in Wisconsin as a result of chemicals manufactured by the 11 company Monsanto. 12 A. You recall that? I believe that was the acetochlor which is an herbicide 13 and its degradation products in water, in ground water. 14 think that's what you're referring to. 15 MR. DOUGLAS: 16 THE COURT: 17 MR. MACE: 18 THE COURT: 19 May we approach, Your Honor? Yes. You may stand if you wish, ladies and gentlemen. - - Thereupon, the following proceeding was held at side-bar: 22 MR. MACE: 23 MR. DOUGLAS: 24 MR. MACE: 25 May I approach, Your Honor? You may. 20 21 I So our objection, Your Honor, would be -I'm not going to offer it. I don't want you displaying it. another one of these media slander campaigns. This is Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 106 of 307 PAGEID #: 5107 1 THE COURT: Let's do this. Vol. 12 I'm going to be strict 106 2 about foundation. 3 he's familiar with it before we get into and no representation 4 of who did it. Ask him if he's seen this before, ask him if 5 MR. MACE: 6 THE COURT: Or what they said. Until there's some authentication. He's 7 not in the category, for example, of two or three DuPont 8 witnesses that I said could be crossed on things that they 9 maybe should have been aware of. 10 MR. MACE: He's not in that category. But, Your Honor, we'd object to how he used 11 the prior document like this repeating hearsay statements and 12 displaying them, even orally, to the Court. 13 THE COURT: Not necessarily saying I disagree. But 14 we're done with that. 15 But again, I encourage the adversarial process. 16 tell me if there's something that you believe is inadmissible. 17 MR. MACE: 18 MR. DOUGLAS: 19 20 gun. And we can bring it back on redirect. You have to I'm telling you now. Judge, just I think counsel jumped the I'm not going to offer this in evidence. THE COURT: But even if you don't offer it, if you 21 describe it to the jury, essentially testifying. 22 have any knowledge. 23 MR. DOUGLAS: 24 THE COURT: 25 MR. DOUGLAS: If he doesn't May I explain? All right. There's a table in here that talks about Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 107 of 307 PAGEID #: 5108 Vol. 12 I'm just going to use it to refresh his 1 the values. 2 recollection as to what his findings were and what the other 3 agencies were. 4 5 THE COURT: If he can identify it, has some idea, that's what we'll see. 6 MR. DOUGLAS: That's all. 7 - - - 8 Thereupon, the following proceedings were had in open 9 court: 10 BY MR. DOUGLAS: 11 Q. 12 13 14 15 107 Sir, I'm just going to ask you to turn to page 8. That's a table on page 8. A. Is this the latest copy of this? We talking about this document or not? Q. Sir, this document is not going to come into evidence. 16 There's a table I'd like to direct your attention to. 17 would just go to page 8. If you 18 A. Yes, sir. 19 Q. There's a chemical that is mentioned on that page in the 20 table. 21 A. I see six chemicals. 22 Q. The first one on the left. 23 A. Alachlor. 24 Q. And the one to the right is Alachlor ESA? 25 A. That's right. I have it. You see that? Which one? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 108 of 307 PAGEID #: 5109 1 Q. Vol. 12 Do you recall that you were asked to do a risk 2 assessment to come up with a determination of level of parts 3 per billion were for Alachlor ESA? 4 company? 108 By you, I mean your 5 A. We were not charged to do that, no. 6 Q. Do you see where it says Wisconsin? And in that matter, 7 Wisconsin determined a level of 20 parts per billion with 8 respect to this Alachlor ESA in the drinking water. 9 sound about right to you? Does that 10 A. That's what the table says, yes. 11 Q. Do you recall Minnesota came up with a value of 70 parts 12 per billion in its risk assessment advice? 13 A. That's what the table says, yes. 14 Q. And North Carolina came up with .4 parts per billion? 15 A. That's what the table says. 16 Q. And your company came up with 5,600 parts per billion? 17 A. That's not our number. 18 Q. That's not your number? 19 A. No, sir. 20 Q. That's wrong? 21 A. That's not correct. 22 safe water levels. 23 daily intakes. We were not charged to come up with We were charged to come up with acceptable 24 Q. And the value was 5,600 parts per billion? 25 A. That was determined by somebody else. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 109 of 307 PAGEID #: 5110 Vol. 12 1 Q. It's not your company? 2 A. This isn't the latest version of the document. It's not 3 in evidence. 4 it along with a press release and it's on our website if you 5 wish to see it. 6 Q. 109 We have an annotated version of this correcting Sir, your work was criticized. You talk about the 7 certificate but in fact the Little Hocking Water Association is 8 extremely critical of the work that you did, that TERA did in 9 this case; is that correct? 10 MR. MACE: 11 THE COURT: 12 THE WITNESS: 13 BY MR. DOUGLAS: 14 Q. No. 15 A. Thanks. 16 17 Objection, Your Honor. Objection is sustained. Are we still on this? You can put that down. MR. DOUGLAS: Those are all the questions I have for you now, sir. 18 THE COURT: Mr. Mace, you may redirect. 19 - - - 20 REDIRECT EXAMINATION 21 BY MR. MACE: 22 Q. How are you doing, Doctor? 23 A. Good. 24 Q. Some of us have had too much caffeine today. 25 A. It's good to be here. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 110 of 307 PAGEID #: 5111 1 2 Q. too long. 3 4 If we could bring up D613. report. 5 6 Vol. 12 - 110 Let me see if I can clear up a few things. Won't take So this is the CATT team Could you go over to dot 3, page 3. In terms of the contractor that you couldn't recall the name of, does this refresh your recollection? 7 A. Yeah. 8 Q. What was it? 9 A. The National -- that sounds right. 10 Q. National Institute for Chemical Studies? 11 A. Yes. 12 Q. So your testimony was West Virginia hired this 13 Thank you. Thank you. contractor. The contractor hired you? 14 A. That's my understanding from my recollection. 15 Q. Let's go down to the bottom of the page and I wanted to 16 get -- in regard to these three doctors from EPA. 17 threw some rocks at you, your team. 18 criticism that was ever made of any of those EPA scientists 19 that were on that CATT team? 20 21 A. Criticism from whom? Counsel Are you aware of any I'm not aware of any criticism of their participation on the CATT team. 22 Q. Or their work on the CATT team? 23 A. No. 24 Q. What about from the Agency for Toxic Disease Registry, 25 Not aware of any of that. Dr. Wheeler. Are you aware of anybody criticizing his work on Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 111 of 307 PAGEID #: 5112 Vol. 12 1 2 3 4 5 6 111 the CATT team? A. I don't have any -- I'm not aware of anything along those lines. Q. Do you recall this Ohio EPA observer who was at the meeting? A. Right. I hadn't met him before. 7 room now, I wouldn't recognize him. 8 there. 9 Q. If he walked into the There was an Ohio person Counsel asked you about a couple organizations, the 10 Center for Public Integrity and Inside Climate. 11 state or federal governmental agencies? Are those 12 A. I don't believe so. 13 Q. And in the same article that he showed to you he read 14 you the first half of your sentence. 15 everyone. 16 change the fact that TERA is neutral. 17 actually said? We get criticized by He didn't read the second half. But that doesn't Is that what you 18 A. Yeah. 19 Q. He showed you Defendant's Exhibit -- P1.3232 and there Absolutely. 20 was an implication at one point that you had a phone 21 conversation with Dr. Rickard before the CATT team was formed. 22 Did you have any conversation with Dr. Rickard before the CATT 23 team was formed? 24 A. Not that I recall. 25 Q. So you referred to this e-mail from 2000 and words I Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 112 of 307 PAGEID #: 5113 1 Vol. 12 don't think he emphasized, their ability to put together an 2 independent peer review panel. 3 together an independent peer review panel? 112 Is that what you did, put 4 A. 5 chosen. 6 I'd have to go back and sort that. In the case of the CATT team, I think folks were already I'm not so sure we actually put that panel together. 7 Q. Was that part of Dr. Staats from West Virginia? 8 A. I believe that was already prearranged. 9 Q. You talked about your mission statement on the website. 10 MR. MACE: 11 THE COURT: 12 BY MR. MACE: 13 Q. May I approach, Your Honor? You may. I've handed you or the clerk has handed you a 14 demonstrative aid that we haven't marked as an exhibit. 15 recognize that? 16 A. Yeah. 17 Q. What is that? 18 A. That's a page out of our TERA website. 19 Q. Could we bring that up, please? 20 Do you Let's bring up the first couple paragraphs. 21 TERA was founded on the belief that an independent 22 nonprofit organization can provide a unique function to protect 23 human health by conducting scientific research and development 24 on risk issues in a transparent and collaborative fashion and 25 communicating the results widely. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 113 of 307 PAGEID #: 5114 Vol. 12 - 113 Was that the attitude you brought toward your work on 1 2 3 4 5 the CATT team? A. That's the attitude we bring with all our work, including the CATT team. Q. You refer to your mission being protection of public 6 health by developing, reviewing and communicating risk 7 assessment values and analyses. 8 bear with the CATT team? 9 10 11 A. Right. Is that what you brought to We didn't do much in the way of communication but we certainly did do in the way of development. Q. Were you aware that the State of West Virginia had 12 enlisted Dr. Becker from Marshall University and a couple other 13 people on the communication aspect? 14 A. I don't recall those details. 15 Q. You didn't get involved in that aspect of it? 16 A. Not at all. 17 Q. In terms of TERA's core principles and values, if we No. 18 could go down to that. 19 transparency, collaboration. 20 you've tried to live by? 21 22 23 A. Absolutely. Honesty and integrity, independence, Those are the core principles On a daily basis. And we try to always improve it. Q. Over at the third page there's a reference in the last 24 paragraph here. 25 of Excellence. An award from the Independent Charities Seal What's that about? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 114 of 307 PAGEID #: 5115 1 A. Vol. 12 We were -- because we're a 501(c)3, a nonprofit 114 2 corporation, we're allowed to apply for the Combined Federal 3 Campaign. 4 money away. 5 code allows us to be considered a charity even though we're a 6 science work, we're a charity by that definition and so we were 7 accepted into the campaign and of course there's a lot of them 8 operating and we were awarded the seal of excellence, which was 9 quite surprising, but we were humbled to get it. 10 Q. So what that is, it's federal workers can give their They can give it to charities. So the 501(c)3 tax You refer to high standards of public accountability, 11 program effectiveness and cost effectiveness. 12 the consideration? That was part of 13 A. Oh, absolutely. 14 Q. You referred to an Office of the Inspector General USEPA 15 16 evaluation. A. Yeah. Right. You're familiar with that report? Very familiar. 17 MR. MACE: 18 THE COURT: 19 BY MR. MACE: 20 Q. May I approach the deputy, Your Honor? You may. Again, we're using this as a demonstrative aid so it 21 doesn't have an exhibit number on it. 22 that report? You're familiar with 23 A. Yes, I am. 24 Q. Would you bring that first page up? 25 What -- Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 115 of 307 PAGEID #: 5116 1 MR. DOUGLAS: 2 THE COURT: 3 Vol. 12 Your Honor, may we side-bar? You may stand by your seats, ladies and gentlemen, if you wish. - - - 4 5 6 Thereupon, the following proceeding was held at side-bar: MR. DOUGLAS: I don't understand how this is a 7 demonstrative issue not being shown to the jury. 8 what this is. 9 THE COURT: What's it connect to this? 10 MR. MACE: Counsel has impunged (sic). 11 MR. DOUGLAS: 12 MR. MACE: I don't know Impugned. Whatever he's done. Criticized the witness 13 and his organization. 14 criticized the witness and his organization and implied that 15 they are industry beholden and -- 16 THE COURT: 17 MR. MACE: 18 19 115 Plaintiffs' counsel has severely Here's TERA. So they're one of the people asked to consult on this for the EPA and reviewed -THE COURT: So they're in here. 20 don't want it displayed. 21 about it. 22 MR. DOUGLAS: 23 MR. MACE: 24 MR. DOUGLAS: 25 MR. PAPANTONIO: I get that. You just You don't care if there's questions It shouldn't be displayed. What if I just do page four? Just ask him. Just ask the question. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 116 of 307 PAGEID #: 5117 1 2 Vol. 12 - 116 The witness is here to testify, not to MR. DOUGLAS: read documents. 3 THE COURT: I mean I'd say you're about even on that 4 score. 5 unusual method for me. 6 that, you don't want any part of this in? And I have to tell you, both sides, that's been an 7 MR. DOUGLAS: 8 THE COURT: 9 I'm not used to that. No. But having said It's collateral. It's collateral. You can ask him. leave the document out at this time point. 10 - - - 11 Thereupon, the following proceedings were had in open 12 court: 13 BY MR. MACE: 14 Q. 15 Doctor, can you describe the document for us? What's that about? 16 17 We'll MR. DOUGLAS: Objection, Your Honor. I think that's the whole -- 18 THE COURT: 19 THE WITNESS: Overruled. You may answer. The Inspector General of USEPA was 20 looking at the Integrated Risk Information System process. 21 That's an agency unit and specifically the peer review within 22 it. 23 IRIS. 24 to get more influential, which is good, and it has these 25 external peer review panels, and there's lots of angst about Remember, when I was back at EPA our group helped develop It was mostly internal. Then I left EPA and it started Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 117 of 307 PAGEID #: 5118 1 Vol. 12 them from a variety of groups, not just industry. NGOs and 2 everybody, I suppose. 3 going to look at the process. 4 looked at the process and they pulled out examples of other 5 processes that were done well and they pulled out TERA as an 6 example comparability. 7 comparability with not only IRIS but also TERA and then four 8 other government organizations. 9 10 117 So the Inspector General said, we're And unbeknownst to us, they And there's a table that shows BY MR. MACE: Q. So is this one of the records you referred to when 11 counsel was questioning you with regard to some of the rocks 12 that had been thrown at TERA by some outside organizations and 13 you were saying, well, the Inspector General had -- 14 A. Yeah. 15 Q. In terms of the review that was done by the Office of That's it. Right. 16 Inspector General at USEPA, did they find that you had adequate 17 controls for conflict of interest and independent research to 18 identify potential panelist bias or conflict? 19 A. Yeah. We came across, in comparison, very good on that 20 issue and others as well. 21 appendix that's easy to see. 22 Q. And they summarize in a table in the Let's switch to a new topic. Counsel showed you a 23 couple documents. 24 focused on the 40 percent for profit and some of the companies 25 there. The 2012 project time by sponsor. And he But he ignored completely the 60 percent government Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 118 of 307 PAGEID #: 5119 Vol. 12 - 118 So could you tell us a little bit about what you 1 nonprofit. 2 did for the National Library of Medicine over the years? 3 A. Yeah. In that particular -- that was 2012. I think 4 what we were doing is we put together a database of risk values 5 called international toxicity estimates for risk. 6 available, has lots of different people's risk values on it, 7 including those have been through independent vetted peer 8 review by our group but also the Dutch and the Health Canada 9 and EPA's IRIS. 10 11 12 Q. Refers to NIOSH, National Institute of Occupational Safety and Health. A. It's freely What have you done for them over the years? In that particular case, NIOSH is a group that protects 13 American workers. 14 working with them every year, we were doing immediately 15 dangerous to life and health estimates. 16 got a worker goes into a place, there's a certain level in air. 17 If it's immediately dangerous to life and health, they're out 18 of there. 19 actually got an award for that that's listed somewhere. What we did that particular year, we've been So in other words, you We're determining those levels for NIOSH. 20 Q. That's enough. 21 A. Sure. 22 Q. I'm sorry to cut you off. 23 A. That's fine. 24 Q. Consumer Products Safety Commission. 25 We I talk too much sometimes. for them over the years? What have you done Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 119 of 307 PAGEID #: 5120 1 A. Vol. 12 Right now we're doing a series of work on Phthalate 119 2 ester exposure information and there was a review team, a team 3 that was put together for the Phthalate esters and it was a 4 National Academy of Science structure team and we did an 5 independent peer review for that team. 6 Academy of Science team, wanted independent peer review and 7 Consumer Products tagged us to do that for them. 8 9 10 Q. That team, National I guess the bottom line on this graphic is in terms of the amount of your funding that came from government nonprofit, was it more than half, 60 percent? 11 A. Oh, yeah. 12 Q. So focusing on the 40 percent, the for profit, would Those are, yeah. 13 that be taking things out of context with regard to the overall 14 work? 15 A. Well, we try to be neutral and work for all parties. 16 that's an important part of our work. 17 part of it of course misses the rest. 18 Q. 37 percent. 20 government nonprofit? But that year did you, as well, do 63 percent 21 A. Right. 22 Q. You talked about some of these. 24 25 Just focusing on one Then on the 2013 graphic, again, he focused on the 19 23 So Yeah. What about Health Canada, what have you done for them over the years? A. We do a lot of work for Health Canada. their independent peer reviews. We do a lot of They had something called Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 120 of 307 PAGEID #: 5121 Vol. 12 - 120 They whittle it 1 Domestic Substances List. 2 down, they write reports and we help review those reports. 3 That's one aspect. 4 done other smaller tasks for them, independent peer reviews. 5 Q. 6 Canada? 7 A. 23,000 chemicals. That's probably a large aspect. And maybe you should clarify for us. We've also What is Health Oh, it's -- Health Canada is the federal health agency 8 for Canada and that includes environmental protection for not 9 only humans but also ecological systems, birds, butterflies and 10 fish. 11 agencies like we do in the U.S. for occupational safety and 12 health and pesticide evaluations. 13 Q. And that's a large agency. And then they have separate So Health Canada would have, in Canada, the same 14 responsibility and even more than USEPA does in the United 15 States? 16 17 MR. DOUGLAS: It's leading. He's testifying. 18 THE COURT: 19 BY MR. MACE: 20 Q. 21 Objection. Rephrase. Does Health Canada, in Canada, do equivalent functions to what USEPA does in the United States? 22 A. I would say that's correct. 23 Q. While we're on the context point. We went over this 24 graphic in your direct examination, you'll recall, in terms of 25 your work different years. You recall that? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 121 of 307 PAGEID #: 5122 Vol. 12 - 121 1 A. Yes. 2 Q. And counsel chose to focus on two years that aren't even 3 on this page in 2012 and 2013. 4 issue for what you were brought here to testify about, the CATT 5 team, what was the percentage breakdown back then? 6 A. Yeah, it was 72/28. But back in the year that's at I think we also had a large USEPA 7 task, the World Trade Center disaster peer review. 8 that. 9 Q. Who was that done for? 10 A. We were approached by, this is a sad story of course. We did That was in that year as well. 11 The trade centers go down for the terrorist attack. 12 later, nine different government organizations had put together 13 a risk document and they invited us to -- asked us to do the 14 independent peer review. 15 think it was USEPA but I'm not sure. 16 17 Q. A year Exactly which agency asked us, I But any event, it was governmental agencies, not private industry? 18 A. Right. 19 Q. All right. Then in terms of the overall, are the actual 20 numbers consistent with your testimony that, on average, about 21 two-thirds of your work is government and nonprofit work as 22 opposed to industry work? 23 A. That's correct. 24 Q. Counsel showed you a graphic, again I apologize for my 25 marks. That's all I have. You made a comment something about Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 122 of 307 PAGEID #: 5123 Vol. 12 - 122 What was your comment about that? 1 comparing apples to apples. 2 Counsel said, aren't these numbers different than this number? 3 A. Yeah. You can do the quantification, of course, but 4 that's not how scientists compare things. 5 understand what goes into that number. 6 was the ADI. 7 how much water is drunk, do they partition it to food or soil 8 or something. 9 which is what we did, and then of course use a set assumptions 10 You have to What we did, per se, Different states have different assumptions of So there's other steps that go from the ADI, to get to the level using West Virginia's assumptions. 11 I'm not sure what the other groups have done so it's 12 hard to compare. 13 organizations out there, the Committee on Toxicology of the 14 United Kingdom has a value as well. 15 16 17 18 19 And I also know that there's other So it's just a matter of you need to understand the basis of the number before you start to compare one to another. Q. Is that, again, an example of how you have to keep things in context? A. Well, you do. There's some differences in the 20 acceptable daily intake amongst these groups. 21 different time. 22 science marches on and you should always incorporate the latest 23 science. 24 25 Q. It's 2014 versus 2002. They also are a So there had been -- In fairness -- so we have been using this calendar or timeline. Your work, sir, on this CATT team was done in 2002? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 123 of 307 PAGEID #: 5124 Vol. 12 1 A. Right. 2 Q. And counsel referred to this science panel report. 3 123 That came out in 2012, ten years later? 4 A. The science -- 5 Q. Science panel he referred to. 6 A. Okay. 7 Q. 2012. 8 A. I had trouble with that as a fact, but whatever. 9 Q. Counsel showed you this graphic that's got numbers after 10 Oh, that. It's a poster over here? Okay. that time that have other values, right? 11 A. Yeah. 12 Q. Yes. 13 There's '13 and '14. THE COURT: After 2012? Is that what you're -- I'll remind the jury, the numbers are 14 different don't have anything to do with the issues we've 15 talked about as far as general causation. 16 with the state of knowledge that DuPont had at the time. 17 BY MR. MACE: 18 Q. They do have to do Sir, I guess in closing, Mr. Douglas asked you about the 19 reliability of your work on the CATT team. 20 2002 on the CATT team reliable based on the state of the 21 knowledge at that time? 22 A. Was your work in Absolutely. 23 MR. MACE: 24 THE COURT: 25 MR. DOUGLAS: Thank you. Thank you. Nothing further. Recross, Mr. Douglas? Just a few. Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 124 of 307 PAGEID #: 5125 Vol. 12 1 - - - 2 RECROSS-EXAMINATION 3 BY MR. DOUGLAS: 4 Q. 5 Just a few and we'll let you get back to Cincinnati. Despite all the accolades we've been hearing about and 6 all this stuff you put on your website, you're in control of 7 what goes on the website, right? 8 A. That's right. 9 Q. So to put that in context, it's your website. 10 11 12 13 124 Myself and my team. You helped create what it says, right? A. Well, we're a nonprofit. I don't own anything in the nonprofit. Q. I didn't ask anything about nonprofits. I'm asking you, 14 again, you participated in creating the website. 15 facts and figures, 40 percent industry, 60 percent nonprofit 16 and government, right? All those 17 A. It's our website. 18 Q. That's your website. 19 A. Yes. 20 Q. Despite all these accolades that we've been hearing You approved that, right? It's our website, right. 21 about, your certificate that you were asked to bring to court 22 and you obliged, somehow the folks at DuPont and other folks 23 who throw in -- other organizations, apparently, who are 24 throwing rocks at your company, have the impression that you're 25 in the business of blessing criteria, right? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 125 of 307 PAGEID #: 5126 Vol. 12 1 A. You're asking me what? 2 Q. Some folks at DuPont, the folks at DuPont have the 125 3 impression, despite everything that we've heard from Mr. Mace, 4 that you're in the business of blessing criteria? 5 MR. MACE: 6 THE COURT: 7 Foundation. You're asking him to speculate about what people at DuPont knew. 8 9 Objection. MR. DOUGLAS: I'll rephrase. BY MR. DOUGLAS: 10 Q. You see where it says blessing criteria? 11 A. Yes, I do. 12 Q. Let's read the sentence again together. One person from 13 another chemical company that used to work in the EPA's 14 criteria office in Cincinnati said that Mike enjoys a very good 15 reputation among the folks that are still in the business of 16 blessing criteria. 17 A. You see where I read from? Yes, I do. 18 MR. MACE: 19 THE COURT: Objection. Foundation. Triple hearsay. I understand this will be coming in 20 anyway. 21 foundation for this witness to be able to answer a question 22 about this document. 23 BY MR. DOUGLAS: 24 Q. 25 Starting with that. But there has to be some My question, sir, is you are unaware of what the term blessing criteria means? Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 126 of 307 PAGEID #: 5127 Vol. 12 1 A. I've never heard that phrase before. 2 Q. If I told you it means whitewashing science, does that 3 126 help you understand the phrase? 4 MR. MACE: 5 THE COURT: 6 BY MR. DOUGLAS: 7 Q. Objection. Move to strike. Objection is sustained. Don't answer it. You were asked just now on redirect about all these 8 folks that praised your work with the CATT team. 9 those questions? You recall 10 A. Some of them. 11 Q. But you do know, sir, that at the time you issued your 12 report, right after, the Little Hocking Water Association was 13 highly critical of your work, aren't they, the folks that were 14 drinking they water? 15 MR. MACE: 16 THE COURT: 17 Objection, Your Honor. Do you know anything about the report? 18 THE WITNESS: 19 THE COURT: 20 One moment. I don't think so. There has to be a foundation. At this point the objection is sustained. 21 BY MR. DOUGLAS: 22 Q. You don't recall, sir, that the screening level of 150 23 parts per billion established by your CATT team generated much 24 criticism and controversy when the results were released? 25 don't remember that? You Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 127 of 307 PAGEID #: 5128 Vol. 12 1 A. I don't think I'm aware of that. 2 Q. You did the work, sir. You took three, four weeks you 3 came up with this 150 number that is far different than any 4 number anybody else has come up with. 5 Little Hocking Water Association? 6 MR. MACE: 7 THE COURT: 8 Do you remember the Objection, Your Honor. Do you have any knowledge of the water association? 9 10 THE WITNESS: I don't have any recollection of knowing that. 11 BY MR. DOUGLAS: 12 Q. Did you ever hear of Little Hocking? 13 A. Little Hocking? 14 Q. Yeah. 15 A. I think we have Hocking Hills in Ohio but I'm not sure 16 127 about Little Hocking. 17 Q. Have you ever heard of Tuppers Plains? 18 A. I'm sorry? 19 Q. Ever heard of Tuppers Plains? 20 A. I don't believe so. 21 Q. Sir, at the end of the day, the value that you and your 22 CATT team came up with, 150 parts per billion, is numerically 23 higher than this figure here, .05 parts per billion. 24 agreed it's numerically higher, right? 25 A. I don't agree with what's on that chart. We've Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 128 of 307 PAGEID #: 5129 1 Vol. 12 - 128 And that's something that, again, is not THE COURT: 2 at issue. 3 not. The question is whether you agree with the number or 4 BY MR. DOUGLAS: 5 Q. Do you agree your number of 150 parts per billion is 6 3,000 times higher than this .05 parts per billion, right, 7 numerically speaking? Let's keep it simple. 8 A. I'm in the business of comparing like to like. 9 Q. Just answer my question, sir. 10 MR. MACE: 11 THE COURT: 12 There's not a response to the question. It's a straightforward question. 13 14 Objection to the question, Your Honor. THE WITNESS: If you can answer. There is a difference between the number 150 and the number 0.5, yes, there's a difference. 15 BY MR. DOUGLAS: 16 Q. It's 3,000 times higher, correct? 17 A. There's a difference between the numbers. The basis of 18 those numbers are not, at least that one, is not intelligible 19 to me. 20 Q. 21 So I have nothing more to say. This is completely unintelligible to you. That's what you're saying? 22 A. The basis of that number I don't understand. 23 Q. You're here to testify about how great your work was 24 that you did in reaching 150 parts per billion. 25 you said your work was reliable, right? That's what Just think about the Case: 2:13-cv-00170-EAS-EPD Doc #: 133 Filed: 10/06/15 Page: 129 of 307 PAGEID #: 5130 Vol. 12 1 129 question and answer only the question. 2 A. 3 number. 4 Q. Right. 5 A. All you have there is four lines. 6 And we have a report that establishes a basis of that THE COURT: 7 there. 8 it at that. 9 Well, there's a lot more than four lines And, Doctor, if you're not familiar with it, just leave That's not a number picked out of the air. THE WITNESS: 10 BY MR. DOUGLAS: 11 Q. I apologize. Would you agree if there were no emissions, if DuPont 12 didn't put this chemical C-8 into the drinking water of tens of 13 thousands of men, women and children that -- 14 MR. MACE: 15 BY MR. DOUGLAS: 16 Q. 17 did -- Objection, Your Honor. There would be no need to be any of the work that you 18 MR. MACE: 19 MR. DOUGLAS: 20 Objection. THE COURT: 22 MR. DOUGLAS: 23 THE COURT: 25 -- if there were no C-8 in the water in the first place. 21 24 Argumentative. Objection sustained. Those are all the questions I have. Thank you, Doctor. You may step down. Ladies and gentlemen, we'll be in recess for one hour. 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