Document 0qOYXrXk0nLZ9bBJQ31b9vDeV

UNITED STATES DISTRICT.COURT EASTERN DISTRICT OF NEW YORK In re "AGENT ORANGE" Product Liability Litigation x MDL No. 381 (All cases) x EXHIBITS TO MEMORANDUM OF DEFENDANT HERCULES INCORPORATED IN SUPPORT'OF ITS MOTION FOR SUMMARY JUDGMENT ON THE GOVERNMENT CONTRACT DEFENSE VOLUME I KELLEY DRYE < WARREN Attorneys for Defendant Hercules Incorporated 101 Park Avenue New York, New York 10178 (212) 808-7800 POR THE SOUTHERN DISTRICT OF WEST VIRGINIA > AT CHARLESTON JAMES M. ADKINS, ) Administrator of the ) ESTATE OF RALPH E. ADKINS,) Deceased, et. al., ) Plaintiffs, ) ) ) vs. ) MONSANTO COMPANY, a ) .) Delaware Corporation, ) Defendant. ') ) RECEIVED JUN 2 k 1983 CIVIL ACTION NO. 81-2098 WOODROW BROWN, et. al., Plaintiffs, vs. MONSANTO COMPANY, a : Delaware Corporation, Defendant. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 81-2239 LE2BA W. CUNNINGHAM, Administratrix of the ESTATE OF CECIL BLAND CUNNINGHAM, Deceased, et. al., Plaintiffs, vs. MONSANTO COMPANY, a Delaware Corporation, Defendant. ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 81-2504 ) ) ) ) ) Evidence deposition of FRANK CALKINS taken on behalf of the plaintiffs. J ames M ay R eporting S ervice C E R TIFIE D S H O R T H A N D R E PO R TER S R .fi 2 BOX 65 EDWARDSVILLE. ILLIN O IS 62025 Reporter: James W. May 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA 2 AT CHARLESTON 3 4 JAMES M. ADKINS, ) Admin strator of the ) 5 ESTATE OF RALPH E.ADKINS,) Deceased, et* al., 6 Plaintiffs, 7 vs. - 8 MONSANTO COMPANY, a 9 Delaware Corporation, ) ) ) ) } ) ) ) ) 10 Defendant. ) n WOODROW BROWN, et. al., ) 12 ) Plaintiffs, ) 13 v s . ) ) 14 ' ` - MONSANTO COMPANY, a Delaware Corporation, 15 Defendant. 16 ) ) ) ) ) LETEA W. CUNNINGHAM, 17 Administratrix of the -ESTATE OF CECIL BLAND 18 CUNNINGHAM, Deceased, IP et. al., 20 Plaintiffs, 21 v s . 22 MONSANTO COMPANY, a Delaware Corporation, 23 Defendant. 24 ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 81-2098 CIVIL ACTION NO. 81-2239 CIVIL ACTION NO. 81-2504 ' 25 JAMES MAY REPO RTING SERVICE 1 APPEARANCES: 2 Paul L. Pratt, Esq. For the Plaintiffs 3 Messrs. Bowles, McDavid, Graff & Love by Charles M.Love, III, Esq., 4 P. Michael Pleska, Esq. and Thomas E. Scarr, Esq. 5 For the Defendant. 6 IT IS STIPULATED AND AGREED by and between counsel 7 for the plaintiffs and counsel for the defendant that the 8 deposition of FRANK CALKINS, may be taken pursuant to Rule ? 25(a) of the Federal Rules of Civil Procedure, on behalf of 10 the plaintiffs, on June 14, 1983, at Room 215, Radisson Hotel, n St. Louis, Missouri, before JAMES W. MAY, a Notary Public 12 within and for the County of Madison, State of Illinois; that 13 the issuance of notice and dedimus is waived, and that this 14 deposition may be taken with.the same force and effect as if 15 all Federal rules and statutory requirements had been com 16 plied with. 17 IT IS FURTHER STIPULATED AND AGREED that any and 18 -all objections to all or any part of this deposition except 19 objections as to the form of the questions asked or answers 20 given, are hereby reserved and may be raised on the trial of 21 this cause. 22 23 FRANK CALKINS 24 produced, sworn and examined on behalf of the plaintiffs, 25 deposes and states as follows: JAMES MAY REPORTING SERVICE 1 DIRECT EXAMINATION 2 BY MR. PRATT: 3 Q Tell the Court and jury your name, please. 4 A Frank Calkins. 5 Q * I am going to ask you some questions concer- 6 ning a lawsuit we have out in Nitro, some plaintiffs, some 7 employees. And if anything I ask .you you don't understand, 8 you let me know, okay? 9 A All right. Q10 And again, what is your name and address? 11 A My name is Frank Calkins. I live at 340 12 Lakewood Lane, Ballwin /Missouri. Q13 Where are you employed, sir? 14 A Monsanto Company. 15 Q And how old a -;man are you? 16 A Fifty-six. Q17 All right. What year did'you graduate from 18 high school? 19 A High school? 1946. 20 Q What did you do following your graduation? 21 A Excuse me. I graduated in *45. 22 Q What did you do following your graduation from 23 high school? A24 I was in the Navy for a year. In 1945 until 25 1946. JAM ES MAY REPORTING SERVICE 1 Q What type of work did you do there, sir? 2 A I was a Seaman, First Class, radio t-echnician. 3 Q When you got out of the-Navy, what did you do? 4 A I worked for about six months and then started 5 college. 6 Q Where did you work? 7 A Marshall Field & Company, Chicago. 8 Q And where did you start to college? 9 A Started at MIT, Massachusetts Institute of 10 Technology in Cambridge Massachusetts. n Q All right. And did you graduate from that 12 institution? 13 A Yes, sir. U Q What year? 15 A 1950. 16 Q And what was your degree in, sir? ! 17 A Bachelor of Chemical Engineering. Bachelor's 18 degree in chemical engineering. 19 Q All right. ^And you would have graduated in 20 **50, right? " - 21 A Yes, sir. June of '50. 22 Q What did you do after you graduated from MIT? 23 A I went to graduate school at Northwestern 24 University, Evanston, Illinois from September of 1950 through 25 September of '5l. JAMES MAY REPORTING SERVICE 1 Q Did you obtain a Master's degree? 2 A No, I did not. I did not complete my thesis 3 work. 4 Q What was your line of study? 5 A . Chemical engineering. 6 Q Chemical engineering. And was there a reason 7 other than to join the work force that you didn't write your 8 thesis at that time? 9 A . I-ran out of money basically. I-thought I 10 had better get a job. My parents were pushing too. n Q Where did you go to work? 12 A Started work at Monsanto. 13 Q Okay. 14 A At WGK, Krummrich plant. 15 Q Did you ever get your Master's? 16 A No. 17 Q Have you ever had any further formal A 18 education? 19 A Yes, six. 20 Q And what is that, sir? 21 A I went to evening school for about four years 22 at Washington University working towards an M.B.A., which is 23 a Master's of Business Administration. 24 Q And did you attain that? * 25 A I did not attain the K.B.A. I was transferred JAM ES MAY REPORTING SERVICE 1 to Nitro before I finished the course. Monsanto has a tui 2 tion refund policy.. So you do push for young engineers to 3 go bach to school. 4 Q- Did you have any further education? 5 A No, sir. Other than continuing education 6 courses 7 Q All right. Now when you -first went to work 8 for Monsanto, I think you said you went to work at the 9 Krummrich plant? 10 A Yes, sir. 11 . ' Q W. G. Krunrrarich. And what was your first job, 12 first position with them there? 13 A I hired into Krummrich. I was hired in as a 14 starting chemical engineer. And my first job was as a lab 15 'analyst. This would be in November of 1951. This is basical 16 ly part of the training program Monsanto had at this time. 17 Q In other words you were out of your field as 18 far as that is concerned? 19 A They started you in to learn about chemicals 20 was the idea. 21 Q How long were you in that? 22 A One month. 23 Q And where did you go afterthat? 24 A I became a shift supervisor in a manufacturing 25 unit at Krummrich plant for about two years. JAM ES MAY REPORTING SERVICE -` 1 Q That again would be outside of the chemical 2 engineering field? 3 * A Well, Monsanto does use chemical engineers as 4 production supervisors. That is one line of advancement would 5 be through manufacturing. And they would use their chemical 6 engineers working up in manufacturing. 7 Q All right. 8 A .This would be sort of a logical progression. 9 - Q 'All right. 10 A In that type of career. n Q About what year would that bring us to? 12 A About '.52, thereabouts. 13 Q What was your next position? U ... A I worked in the Technical Service Department 15 at Krummrich plant. This is a plant engineering group. l Q And how long were you in that job? 17 A Off and on until about 1958. 18 Q What were your responsibilities and duties IP there? 20 A `Minor engineering work for the plant. Yield 21 studies, debottlenecking efforts. Maintenance efforts.' 22 Q Tell the jury what debottlenecking means. 23 A ' Vfe have a unit that does not -- we want to 24 -get more capacity out of it. And we look to see what the 25 bottleneck is. Quite often we may have a pump that doesn't JAM ES.M AY REPORTING SERVICE 1 pump fast enough. Or we have a vessel that is too small. 2 And we would put in a larger punp or a larger vessel or a 3 larger heat exchanger to get more capacity out of the unit# 4 to meet our sales requirements or whatever else. This would 5 be minor. ;The major work at Monsanto is done by their in 6 corporate engineering department. Minor work is done with 7 plant engineering groups like I was in at that* time. 8 Q The actual work would be done normally by 9 outside contractors? * 10 A Quite often this was done by the plantn maintenance people. And we have a f most plants have a project 12 group that handles some of this type of work. 13 Q All right. W A Besides regular maintenance, they do some of 15 this type of work.16 Q In 1958, when you left that job, where did you 17 go, sir? IB A I was transferred to Nitro, West Virginia. 19 This would be early *58, January, February, something like 20 that. 21 Q And what was your position there? 22 A Transferred into the Technical Service 23 Department at Kitro, which is a similar type pf group that I 24 came out of Krunnarich. 25 Q Bow many years were you at Kitro? JAMES MAY REPORTING SERVICE 1 involved with at that time, that's correct. 2 Q -- Were you involved at that time in any way, 3 shape or form with the testing of the 2,4,5 T or any of its 4 components for_ the;presence of dioxin?' 5 A * ' No, sir. ` " 6 Q You were in there then I guess about, how long, 7 three years, you say? . . 8 --. -- A *-- About -three-years. 9 : Q : Would that run you from about *60 to '63? . 10 A ' How "I have not'gone back and looked at time, 11 schedules. So I"am somewhat hazy. But I believe the 2,4,5 T 12 unit, the new 2,4,5 T unit started up in like *62. And I 13 left Nitro about '63 to '64. So it would be in that period, 14 yes, '60 to '63 is about right. ` 15 * Q And would that be building 92? 16 A Yes, sir. 17 Q .rDid you do or your organization or your 18 department do some of the setting up of the equipment in IP building 92? --- '- 20 A No. Basically the design.of 92 was done by 21 our Ag Engineering Department in St. Louis. We, I think one 22 of our men, Mr. White, acted as the manufacturing represen 23 tative. This is typically the' way Monsanto did projects at 24 that time. And so he represented the plant on, to get the 25 plant needs into this design. But.the design was done by JAM ES MAY REPORTING SERVICE 1 1 our Engineering Department at St. Louis. That was a major . 2 project. We did not take part. We met and discussed it.- but 3 we did not have the prime responsibility. 4 Q Did you have an outside contractor that built 5 the unit? -.. -- *---> - - 6 A I believe that Union Boiler put 'it in, but I 7 am not sure. I am not sure. This would be done through 8 Monsanto, again-our Engineering Department, through a con 9 struction engineer and`-again this was not in my 'department. 10 0 You had Union Boiler employees .throughout 11 that plant though, pipefitters, did you not, on a continuous 12 basis? .... 13 A I am not sure of that. I do know that we used 14 Union-Boiler as a contractor for some of our expansions at 15 Nitro in that period. -I am not sure we used Union Boiler. 16 I am not sure of that. 17 - :Q Did you have outside employees during that 18 period that did pipefitting work though? A 19 A I believe we did. But again this is not my 20 .major area of responsibility.. So I am not really sure. 21 . Q Who they were you don't know? 22 A I don't know. . I think we would, probably go 23 outside at times. 24 Q Did you have anything to do with the health 25 or safety of any of the workers? JAMES MAY REPORTING SERVICE j - 1 A No, sir 2 Q On any aspect? 3 A No, sir. 4 Q Of all the chemicals you made? 5 ' A 'N o r sir. 6 Q And specifically 2,4,5 T and dioxin, right? 7 You had nothing to do with that? 8 * A I had nothing to do with the health and 9 safety. I mean the I -guess repeat the jquestion. I am 10 sorry. The hygiene I guess is what you axe asking. 11 Q You had nothing -to do with the health or < 12 safety in your job? 13 A No, sir. 14 Q Let me finish*. Inthe 2,4,5.T plant? 15 A No, sir. 16 Q - Lid you do any workalong ,thelines of -- 17 well, strike that. Let me-ask you this first. Did you know 18 that some o f `the employees there were getting an acne called 19 chloracne? 20 A Yes, sir. 21 Q Did you do any work during that period of time 22 in your field, to ameliorate.or lessen the amount of chlor 23 acne that was being caused? 24 A That, part of our responsibility would be to 25 provide some minor plant projects to possibly lessen exposure JAM ES MAY REPORTING SERVICE * 1 to chemicals. And that would be like putting in ventilation 2 fans, duct work hoods. I do not recall what we did speci 3 fically but possibly we did some work in that respect. I 4 don't remember any specific project.. -But this would be part 5 of a plant engineering.group area of responsibility. 6 Q " Now for instance did you from time to time, 7 in your capacity, involve in say putting dust collectors in? 8 A We worked on a dust collector problem in the 9 start. And we did work with our Ag Engineering, recommending 10 putting in a different'type of dust collector, that's right. 11 That is more for keeping the product in the plant rather than 12 putting it out in the .atmosphere. It's not so much for the 13 safety of the people working at the plant, in the plant site. 14 * Q What was the reason you didn't want it outside 15 of the plant? , 16 A 2,4,5 T is a noted broadleaf weedkiller, and 17 it would kill all the -trees in the valley if you got very 18 much of it out there. - That is what its use is.* It's to 19 kill broadleaf weeds and plants. 20 Q One other thing that you were involved with 21 then was the dus.t collection problem? 22 A We worked on that among others, yes, sir. 23 Q ' Were you also involved in your job ir. plant 24 -capacity or in capacity increase of the 2,4,5 T unit? 25 A We, at Kitro we had two units'. We had an old JAMES MAY REPORTING SERVICE  unit in building 34. And ultimately they put in a unit in 92 2 to give us more capacity. Before they put the unit in at 92, 3 we were looking at ways of increasing capacity in the unit at 4 building 34, that1s'correct. We could sell- -- 5 Q - More than you could make? 6 A More than we could-make, that's correct. 7 Q And of course in the Viet Nam war the capacity 8 increased almost geometrically, right? - ' *-* 9 :A Yes, sir. :We were selling to the government, 10 that's correct.' ...... * n Q -And-one-of your jobs a s :a chemical engineer 12 was to help provide this capacity, right? 13 _A ...To_look.at ways .to maximize it, that's correct. 14 Q Do you have any figures offhand that, in the 15 -- starting when you started there in *58 and the time when l you left, what the capacity went to? 17 - - A I have no recollection of numbers, I'm sorry 18 to say. That was 20 years ago. And I have had a lot of 19 projects since then. So I don't know what we were talking 20 about. 21 Q Definitely a large increase though, right? 22 A I think the new plant was going to be quite a 23 bit larger than the 34 unit, that's correct. 24 Q Other things you worked on would have been 25 like fume control, was that ^ problem? JAM ES MAY REPORTING SERVICE 1 A We did some of that. And again I don't know 2 specifically what we did. Or I don't remember specifically. 3 Q What about filtration installation? Would that 4 be in the work that you did? . 5 A'--- Part of *our -- yes. We did some work in 6 filtration. Again.working with other people. But again we 7 were trying to keep the,.minimize the loss of 2,4,5 T to the 8 waste streams. And we .were.talking about putting in a secon 9 dary filter. I believe we had a project to do that. This is 10 typical of what a project group would do at Nitro. Which 11 didn't work by the way.. .. 12 Q . Did you ever have anything to do with advising 13 the workers on what type of protective clothing if_anything 14 should be worn? . 15 A . N o , that was not our responsibility. That was 16 the manufacturing responsibility. 17 -Q And you never told any of the workers there 18 that what was causing their chloracne, right? * 19 A I never told them and I didn't know. This was 20 back in the sixties. I wasn't aware of what caused it either. 21 Q When did you learn that dioxin could cause 22 chloracne? 23 MR. LOVE: 'Objection to the form of the ques 24 tion . You are presupposing a conclusion cn the 25 part of the witness. JAM ES MAY REPORTING SERVICE 1 MR. PRATT: 'The man just said he didn't know 2 at that time* 3 MR, LOVE: Well, maybe he never knew. X think 4 that your question can be better phrased and I 5 object to its form. 6 Q Go ahead. 7 MR. LOVE: Go ahead and answer. Do you want 8 to read the question back? 9 A Yes, repeat the question now. 10 (Whereupon the last portion of the record was n read by the Reporter.) 12 Q Let me strike that. Did you ever learn that 13 dioxin could cause chloracne? W A I read articles where theysuspect chloracne 15 is caused by dioxin. . 16 Q All right. When did you read those articles? 17 A That was fairly recently, I think. And of 18 course Missouri, dioxin has got a lot of headlines recently. 19 I would say in the seventies. 20 Q Okay. 21 A I don't know exactly when. 22 Q Did you ever see the workers there when you 23 were there with chloracne or* their face? 24 A I saw one foreman that had a very bad case of 25 chloracne. Ana that is the only one I can recall that really JAMES MAY REPORTING SERVICE I 1 had any problem. 2 Q In any event, for whatever reason you never 3 | warned anybody that dioxin could cause chloracne, right? 4 A No. 5 Q Okay. Do you know of any other diseases that 6 it can cause? 7 A No., sir.. S - MR. PRATT: I told you it would be short. 9 10 n 12 FRANK CALKINS 13 14 15 16 17 18 19 20 21 22 23 24 25 JAM ES MAY REPORTING SERVICE 1 2 3 4 STUTE OF ILLINOIS) )* 5 ) SS. . - -y 6 COUNTY OF MADISON) 7 8 I, JAMES W. MAY, a Notary Public, duly commissioned 9 and qualified in and "for the County of. Madison, State of 10 Illinois, do hereby certify that pursuant to notice came Tl before me on the 1.4th_day .of June, 1983, -at Room 215, 12 Radis son Hotel, FRANK CALKINS, who was by me duly sworn to 13. - testify to the truth and nothing but the truth of his know-- U ledge touching and concerning the matters in controversy in - 15 this case? that he was thereupon carefully examined upon oath, 16 and his examination reduced to writing under my supervision? 17 ana that the deposition is a true record of the testimony 18 given by the witness.' 19 20 I FURTHER CERTIFY that I am neither attorney nor 21 counsel for nor related to nor employed by any of the parties 22 to the action in which this deposition is taken; and further, 23 that I am not a relative or employee of any attorney or . 24 counsel employed by the parties hereto, or financially in 25 terested in the action. JAM ES MAY REPORTING SERVICE 1 IN WITNESS WHEREOF, I have hereunto set my hand 2 and affixed my notarial seal on this day of 3 _________ ___________________ , 1983. 4 5 6 Notary Public in and for the County 7 of Madison, State of Illinois. 8 9 10 n 12 13 14 15 l 17 18 19 20 21 22 23 24 25 JAM ES MAY REPO RTING SERVICE