Document 3e6QxMYJKjmXyyb7r7qMpdewE

V / * 'i\ 1 < -V , * > ' ' *` r' y 1 position that this witness has taken? 2 * MR. MASSIF: We haven* t made a comparison/ Your 3 Honor, of ail the data we have given Mr. Carr and where it 4 would be located on thi.s last page, here to tell you if this `*5 wasn't one of the samples applicable to this location and it i 6 has not been 'fcove red. "7 * MR. CARR: And has the witness done it. - MR. NASSIF: I don't know, Mr. Carr. OM 1 ,v' ' 1 MR. CARR: You know good and well he hasn't. MR. NASSIF: Mr. Carr^,he knows a lot more than I 11 do. ,\ 12 THE COURT: I will allow you to make the ;' 13 appropriate assumption as to covering the areas sufficiently ^14 so we can move on because right now we are at a road block on /! 15 a tangent. / 16 (The following proceedings were had in the hearing i , 17 and presence of the jury)Y . ' 18 Q. Doctor, I want you to assume that the only/areas of 19 contamination in ithe soil ,that were found were as I described 20 to you in the question that I read to you from Plaintiffs' 21 Exhibit 1527. Will you do that, sir? 22 A. What areas is that, now? What areas? 23 Q. The one that I read to you, Doctor? 24 A. Is that just the parking lot, sir? _____ 12.5 . .. . 1 Q. No, Doctor. There were other areas in addition to 2 the parking lot. Do you recall that, sir? i i 3 A. Yes, I do. 4 Q. Doctor, I would like for you to assume that those 5 areas were all the areas of contamination you found. Will 6 you assume that, sir? 7 A. I assume that. 8 Q. And in all of those areas, those areas were covered 9 up, weren't they, sir? 10 A. I don't know. 11 Q. Doctor, do you recall I read to you that they were 12 all covered up? The very least that was done was that six t* ! i 13 inches of limestone put over an area? 14 A. Has that been done or is that just a proposal? 15 Q. Doctor, I am not here to answer the question, 16 Doctor. Would you just please assume these things. Doctor, iii 1 i t 17 so that we can move on? 18 A. I assume that that was done, sir. 19 Q. Yes. i j 20 A. Okay. I 21 Q. And that there is no contaminated area of which we i 22 are aware where there was not some remedial action taken as 23 is described in this Plaintiffs' exhibit 1527? 24 A. Okay. I assume that. 1-2--------- . - 1 Q. Will you assume that? 2 A. Yes. 3 Q. If you assume that is true, Doctor, then they took 4 action because somebody believed that that soil was 5 bioavailable or that TCDD in that soil was available, isn't 6 that correct, sir? 7 A. No, not necessarily, sir. 8 Q. Not necessarily. Doctor. Why would they take the 9 action unless they believed that there was some risk, Doctor? 10 A. I think.it.would be prudent, even though the 11 contamination might be at a low level at six inches or 12 12 inches or 18 inches'.below the soil, it might be very prudent 13 to have another cover over it. 14 Q. And, Doctor, why would it be prudent to do that? 15 A. Because at some time or other, the material might 16 be dug up. 17 Q. Well, Doctor, there are other methods for the TCDD i 18 that is buried in the soil to get up into the atmosphere 19 other than just being dug up. You know that, don't you, sir? 20 A. I believe I know some of them at least. 21 Q. You know that it rises to the surface when it is 22 buried? You know that, don't you, sir? 23 A. No. 24 Q. You don't know the work that Doctors Freeman and 127 1 Schroy did in behalf of Monsanto? 2 A* Yes, X do, sir, 3 Q. How the dioxin, even though it is buried 20 inches 4 deep, comes up to the surface? 5 A. Yeah, but it does so have -- i 6 Q. Doctor, excuse me. You say you didn't know and now 7 you say you do know? 8 A. I read Schroy and Freeman's paper, yes. 9 Q. And do you know that there is a method of the 10 dioxin to get to the surface other than just being dug up, 11 don't you, sir? 12 A. They had only -- i j j !I| 1 13 Q. Excuse me, Doctor. Do you know that or not? 14 A. -- a method. \ i 1 15 Q. That there are other ways by which TCDD buried in 16 the soil can rise to the surface of the soil other than being 17 dug up? 18 A. Theoretical possibilities, sir. Yes. 19 Q. Theoretical possibilities? 20 A. Yes. 21 Q. Don't you believe that Doctor Freeman and Schroy 22 proved it, sir? 23 A. Only to a degree, sir. 24 Q. Doctor, did they prove it or not, sir? 128 i i 1 A, No. To my way of evaluating their effort. 2 Q. Doctor, you are saying that they did? j j 3 A. There is nothing absolute about that, sir. i J4 Q. Doctor, you are saying they didn't prove it, is 5 that right? 1 6 A. They didn't prove it conclusively, no, sir. 7 Q, Doctor, did they have an experiment that they had 8 published and they said -- no one-has yet contradicted it,, 9 sir -- that it does rise to the surface? 10 A. They even -- 11 Q. Are you aware of that, Doctor? * 12 A. Yes, I am aware of it. I am aware ofthatpaper. 13 Q. Have you done any work yourself,sir? 14 A. No, I haven't. 15 Q. To disprove what they said was aproven fact i \ iI j i !I ' ( i! !; 16 according to their tests that they performed? 17 A. I have not done that kind of work, sir. | , I* 18 Q. Doctor, they did show a graph, did they not, sir, ! 19 that showed the TCDD moving upward? \ i 20 A. I believe they have showed it moving. I am not 21 sure whether it was upward or not, sir. 22 Q. Aren't you aware of the fact that they showed it 23 moves downward and upward, both directions from where it was 24 buried? 129, 1 A. It may under certain circumstances. fl | 2 Q. That isn't what I asked you. Aren't you aware of 3 the fact this they proved it, sir? ! 4 A. No, sir. They haven't proved it to my 5 satisfaction, sir. 6 Q. I would like for you to assume, however, whether it ! 7 is to your satisfaction or not that it has been proven. That 8 TCDD will vaporize and volatilize and rise to the surface. 9 Will you assume that please, sir? 10 A. Only if you ask me. 11 Q. What do you think I am doing, Doctor? i ! 1 12 A. -Asking me. 13 Q. So will you assume it, sir? 14 A. I will assume it, sir. 15 Q. And, Doctor, one reason to cover the soil, sir, is 16 to prevent the vaporization, the volatilization of the TCDD 17 from rising into the atmosphere, isn't that correct, sir? 18 A. No, sir. It is notso, sir. Absolutely not. ! 19 Q. Doctor, why do you think they put the cap of clay j i j | 1 !I | i j i ! I I { ! 20 over the TCDD contaminated soil and the asphalt and the 21 concrete? 22 A. So that the soil beneathwould not be available. ! i ! I 23 Q. Doctor, the TCDD is what they are concerned about, 1 24 isn't it, sir? 130 1 A. Correct. 2 Q. Not the soil per se? 3 A. Whatever is in the soil and TCDD may be found 18 4 inches or 20 inches. What they wanted to make sure is that 5 nobody got to it. 6 Q. Doctor, now -- I am not even asking you that, ara I, 7 Doctor? 8 A. Yes, you are. 9 Q. Doctor, do you know that the Monsanto Task Force 10 Group that was concerned with Sturgeon considered that the 11 only way of really disposing of the contamination at Sturgeon 12 was to put asphalt over the contaminated areas? 13 MR. HEINEMAN: I object, Your Honor. May counsel 14 approach the bench? 15 THE COURT: Yes, you may. 16 (Bench conference had out of the hearing of the 17 jury.) 18 MR. HEINEMAN: My recollection of the document 19 which Mr. Carr is referring to is that the document said that 20 they should do that perhaps to deal with the smell. I have 21 been informed by my boss here that the document title is Odor 22 At Sturgeon* At any rate, my recollection is is that the 23 exhibit that Mr. Carr is referring to proposes that you deal 24 with odor, not deal with TCDD contamination. I object to the 131 1 form of the question as being misleading to the witness and 2 not correctly representing the facts that have been 3 introduced in the case. 4 MR. CARR: Your Honor, I will agree that the topic 5 was. the odor and that was what they considered a solution at 6 least in part to the problem called odor but the document 7 itself dealt with more than just odor. It wasn't limited 8 just to odor. It talked about the Sturgeon problem. In 9 addition, of course, we have the OH remedy which counsel -- 10 Mr. Heineman wasn't here but Mr. Musgrave proved extensively 11 as to how they put this impermeable cap of clay over dioxin 12 and there will be other questions that I will get into 13 similar where they have discussed problems in other areas of 14 capping them with asphalt. 15 THE COURT: Objection is overruled. Let's take a 16 break at this time. 17 (The following proceedings were had in the hearing 18 and presence of the jury). 19 THE COURT: Ladies and gentlemen, we will take a 20 short recess at this time and then resume testimony. The 21 admonishments that I gave you earlier will apply during this 22 break also. Court is in recess. 23 COURT RECESSED: 24 (The following proceedings were had in the hearing 132 I 1 and presence of the jury) 2 RAYMOND SDSKIND 3 having resumed the witness stand, being previously sworn, 4 testified further as follows: 5 CROSS EXAMINATION 6 By 7 MR. REX CARR. 3 Q. Doctor Suskind, I misstated to you the purpose of 9 the contemplated paving over Sturgeon or part of Sturgeon 10 with asphalt and I would like to correct any misapprehension 11 there might be in your mind. The stated purpose by the 12 Monsanto representatives for the, at least in this exhibit 13 putting the asphalt over the contaminated area in Sturgeon 14 was for the purpose of doing something about the odor problem 15 connected with the spillage and I would like for you to 16 disregard that I stated to you it was for the purpose of 17 containing the TCDD because they did not have that in mind at 18 least at the time, all right? 19 A. Yes, sir. 20 j Q. But you do know, Doctor, do you not, in regard to j 21. jsteps that have been proposed for contaminated'sites such as j 22 |Times Beach or Minker Stout in Missouri, that paving over the 23 contaminated areas are possible solutions that have been 24 j recommended by some scientists? 133 ii i 1 A. They have been recommended by some persons, yes. 2 Q. All right. And, Doctor, regardless of your views | 3 as to whether or not you believe Schroy and Freeman's work 4 has proven the volatility or the vaporization of TCDD from 5 the soil, you are aware of the fact that that is Monsanto's j | j 1 j 6 position, are you not, sir? 7 A. No, I am not aware of that, sir. 8 Q. Well, that is what their scientists have said, sir, 9 in this courtroom under oath will happen to the TCDD. Will 10 you accept that, sir? 11 A. No, not really. \ i 12 Q. Doctor, I am asking you to accept that because that j j 13 is what they have testified to. Will you accept that, sir? 14 A. I can only accept that they testified that. 15 Q. Yes. That is what I am asking you to do. 16 A. All right. > Ii |t J 17 Q. Now, Doctor, you have a difference of opinion with 18 Monsanto, I take it, as to whether or not the workers at the ? 19 Nitro Plant were or were not exposed to TCDD by reason of 20 where they worked in the plant or where they walked through 21 the plant or what they did in the plant or various areas of i 22 the plant, is that correct, sir? 23 A. Our view of -- 24 Q. Excuse me, Doctor. Could you answer that ij j i i . iI i i 134 l 1 question? I am asking you whether or not you had a 2 difference of opinion with Monsanto as to what constitutes 3 exposure to a worker by reason of them being in a part of the 4 plant or being in an area or walking through the plant. Do 5 you differ, sir? 6 A. Yes, we have some differences, yes* 7 Q. And at the time you did your studies, sir, you v/ere 8 given information by Monsanto as to the persons that they 9 considered to be exposed, were you not, sir? 10 A* ' Yes, sir. 11 Q. And you were given classifications of people that 12 were exposed intermittently by reason of the fact that they 13 had plant-wide responsibilities, did you not, sir? You were 14 given such a list? 15 A. Yes, we were given such a list. 16 Q. And you didn't go by that list in deciding who 17 would be an exposed group or unexposed group, did you, sir? 18 A. That is true, sir. 19 Q. Yes. And, Doctor, back to the question that 20 started us down this path. At sometime ago, the libido and 21 sexual impotence and sexual problems that these men had 22 existed in both the exposed and the unexposed groups, did 23 they not, sir? 24 A. 1 believe so, yes. 135 1 Q. And, Doctor, do you believe that the fact that it 2 occurs in a so-called unexposed person might suggest or )I | l 3 indicate that he was exposed if you have found complaints of i 4 loss of libido to exist in a third or better of the so-called j 5 exposed population? ! j j 6 A. Well, I will answer your first question by saying i 7 no, we don't think that the fact that they were found in the 8 unexposed had anything to do with exposure and I think we 9 stated in our paper, sir. 10 Q. All right, Doctor. Then if you found that loss of 11 libido was a relatively common problem occurring in, say, 30 | j 12 percent of your exposed population regardless of their age, 13 you wouldn't take that to be, then, as a pretty strong 14 indication that dioxin affects the libido? 15 A. No, sir. 16 Q. You would not? 17 A. No, sir. Not in 1979, sir. 18 Q. And, Doctor, would you -- I take it then that you i iii!| ! !i !|T ! 19 wouldn't say that the libido, loss of libido occurring in the j i 20 so-called unexposed population would not support a view that 21 the unexposed population were, in fact, exposed? Is that 22 also correct? 23 A. Absolutely not. We would not agree to that. 24 Q. Doctor, back to the Nestmann problem. The Nestmann 136 1 exhibit that we were discussing, on this particular one 2 Haning, as well as -- Haning was found by Doctor Nestmann to | ! 3 have a moderately severe psychoneurosis, was he not, sir? Do 4 you have the Exhibit 1779 in front of you, Doctor? 5 A. Yes, I do. ; 6 Q. And, Doctor, I think you have testified earlier 7 that you were aware that these reports by Doctor Nestmann 8 were given to the compensation commission? 9 A. I believe so, yes. 10 Q. Doctor, handing you Plaintiffs' Exhibit 1780 and 11 ask if that represents to you that that is a portion of the 12 compensation commission transcript dealing withHarold Young 13 and, Your Honor, I would like to offer that exhibit into I i jii i j i j 14 evidence at this time. 15 THE COURT: Any objections? ! ! j 16 HR. HEINEMAN: One moment please, Your Honor. : 17 THE COURT: Sure. j 18 19 Honor? 20 MR. HEINEMAN: May counsel approach the bench, Your THE COURT: Sure. j i 1I i 1 21 (Bench:conference had out of the hearing of the 22 jury.) 23 MR. HEINEMAN: This exhibit, which is what number? 24 THE COURT: 1780. 137 i! 1 MR. HEINEMAN: Your Honor, I thought Mr. Carr said 2 it was a transcript. What I have is definitely not a 3 transcript. 4 MR. CARR: Right. I agree. It is part of the 5 record. I misspoke. It is part of the compensation record. 6 MR. HEINEMAN: All right. Your Honor, at this 7 point we would object to their document as being hearsay and 8 as having no authentication or identification by this 9 witness, no foundation has been laid by the witness in court 10 with respect to allowing it to be admitted into evidence. It ! i 11 is not a document created by -- well, I have said what I need i 12 to say. ' i j 13 MR1 CARR: Your Honor, the status of this record is 14 the same as many other Monsanto records that we have 15 heretofore offered. These are documents that were produced J j I i ii 16 to us by Monsanto from their files dealing with the subject 17 of dioxin and dealing with these people. There has been a 18 considerable issue made of the compensation commission 19 hearing and records thereof and these documents are 20 authenticated and Monsanto has represented to us that they I i | j i 21 are authentic : 22 THE COURT: I think they probably fall under that 23 status. I think also since it is part of the record of an i i 24 official tribunal, I can take judicial notice of it, too, and 138 i 1 I would do that also since I don't think there is any dispute 2 that it is part of the record of the Workmen's Compensation i j 3 Board of West Virginia at the time, the way it was i 1 4 constituted in the '50s. On both things X will deny it. 5 I think you should correct for the jury that this 6 part of the record was not a transcript. i i 7 MR. HEINEMAN: Am I, in terms of the future rulings 8 of the court, am I to understand that anything that is an 9 official record of the Workers Compensation Commission will 10 be admitted under judicial notice of this court? 11 THE COURT: Assuming that it is relevant, it could j j 12 be. 13 MR. HEINEMAN: All right. 14 THE COURT: I would think so, assuming that it is 15 relevant. 16 MR. HEINEMAN: All right. 17 THE COURT: Now, you know, I mean, as the question I i j i ! ! !i | T \ 18 of relevancy or any other objection that I can't think of ! 19 right now. If it is raised then, I will consider it but I i 20 would think as a general rule, that is true. ! 21 MR. HEINEMAN: But the record of the court or the 22 commission would be judicially noticed. All right. 23 (The following proceedings were had in the hearing 24 and presence of the jury) 139 1 Q. Doctor, I described this as a transcript. In fact 2 it is not a transcript* It is a portion of the records on 3 file with the West Virginia Industrial Commission, is it not, 4 sir, and not a transcript of testimony? At least the part 5 that we have here contains no testimony, isn't that correct, 6 sir? 7 A. Well, all I see are letters to the commission, sir, 8 and I see a cover sheet. 9 Q. My question, Doctor, it does not contain any 10 testimony, does it, sir? 11 A. But the cover sheet indicates, so -- j j 12 Q. It is not a transcript of testimony, is it, sir? 13 A. All but the first sheet, sir. 14 Q. The first sheet is simply an index, Doctor. It is 15 not a transcript, isn't that correct, sir? 16 A. But I am not sure what it is an index of, sir. 17 Q. All right, Doctor. And also show you Plaintiffs' 18 Exhibit 1780A and ask you to confirm that that is a part of 19 1780 and it has on the top of it Employer Exhibit Number 1 ji 20 and it is a report signed by Doctor Nestmann, is it not, sir? ! 21 A. Yes, it is a report signed by Doctor Nestmann. j 22 MR. CARR: Your Honor, I would like to pass that 23 report to the jurors, if I might. | 24 A. Sir, is there a date? j 140 1 THE COURT: Go ahead, Mr. Carr. i i j i 2 (Plaintiffs' Exhibit 178QA is passed to the jury). j ( 3 Q. Doctor, the date you can see there is July 6, 1955? j 4 A. Thank you, sir. 5 Q. Doctor, this particular exhibit has a number of j 6 statements about Harold Young, does it not? 7 A. Which statement? 8 Q. The 1780A that I have passed to you, sir? 9 A. 1780A is the findings of Doctor Nestmann, sir, yes. 10 Q. And could I have a 1780B. Doctor, 1780B is a 11 blowup of the second page or signature page of the Nestmann 12 report, is it not, sir? 13 A. Yes, I believe it is. : 14 MR. CARR: Your Honor, I would offer 1780B into 15 evidence at this time. j j j j I j- ! il i ! *j 16 THE COURT: All right. j 17 MR. HEINEMAN: It is already admitted. j j! 18 MR. CARR: The blowup has not been, counsel. tj 19 THE COURT: It is part of 1780. j 20 MR. HEINEMAN: Well, may the record we have made in 21 connection with 1780 apply? 22 TIIE COURT: Sure. 23 MR. HEINEMAN: To 1780A and B as well, Your Honor? 24 THE COURT: Right. It so applies. 141 1 Q Doctor, is there in that Nestmann report any 2 diagnosis of Doctor Nestmann that Mr. Young has a case of 3 severe psychoneurosis? 4 A. No. But there is no diagnosis or impression here, 5 sir. 6 Q. Doctor, could you answer my question, please, sir? 7 A. No. 8 Q. And, Doctor, this particular sheet is not on Doctor 9 Nestmann1s stationary, is it? It appears to be progress 10 notes, something like you would use in a hospital record, 11 sir? 12 A. I can't say from the way this is. 13 Q. Doctor, you see there is no letterhead, do you not. 14 15 A. Yes. But I can't assume that it is hospital 16 records, sir. 17 Q. May I just give the question to you one more time 18 Doctor. It is not, it does not have Doctor Nestmann's 19 letterhead on it, does it, sir? 20 A. I don't see Doctor Nestmann's letterhead, sir. 21 Q. It has the words progress notes and then over to 22 the left it has got hospital number, does it not, sir, and 23 then room or ward? Do you see that, sir, and then a place 24 for the doctor? 142 i 1 A. It is illegible so I can't really verify that* j i 2 Q* You can't make out the abbreviation hospital number 3 and the doctor and the bed and the room or ward? 4 A* No# I can't but I will accept that, sir. 5 Q. Thank you# Doctor* And, Doctor, do you recall I !J ji 6 asked you, suggested to you I think it was yesterday that 7 perhaps the reports that were given to the Workmen's Comp 3 Commission had been edited so as to remove certain diagnoses 9 concluding or referring to the psychoneurosis and you said 10 no, that could not be. Do you recall that? 11 A. I believe I recall that vividly, sir. 12 Q. Yes, you do, Doctor. I hand you now what has been ! i j i i | 13 marked as Plaintiffs' Exhibit 1781 and I will represent to ! 14 you, sir, that these are hosDital records furnished to us by i ! 15 Monsanto relating to Harold Young as per our request a couple | j 16 of weeks ago and. Your Honor, I will offer 1781 into evidence ! !i 17 in just a minute. !I 18 THE COURT: Any objection? 19 MR. HEINEMAN: One moment, Your Honor. 20 THE COURT: Sure. Go ahead. | i j t ' 21 MR. KEINEMAN: Would counsel approach the bench, 22 please? 23 THE COURT: Sure. 24 (Bench conference had out of the hearing of the 143 1 jury,) 2 MR, HEINEMAN: Your Honor, we will object to this 3 on the same grounds that we have objected before to these 4 outside medical record. A, they are hearsay. B, there has 5 been no authentication, no identification, therefore, no 6 foundation. 7 THE COURT; I will incorporate your argument on 8 both sides and the ruling is the same* They are admitted 9 over objection. I will incorporate your arguments and yours 10 at this time. n MR. CARR: Thank you. J 1 12 (The following proceedings were had in the hearing j 13 and presence of the jury). 14 Q. Doctor, I will now hand you what has been marked 15 Plaintiffs1 Exhibit 1781 and ask you to confirm that this is 16 a copy of the progress notes signed by Doctor Nestmann that 17 is in the exhibit 1780 that I previouslyhad given you? I il I i j j j ! | 18 1781, sir. We are now looking at1781,sir. 19 MR. HEINEMAN: What is the number of the new 20 exhibit? j 1 I ! i | 21 MR. CARR: 1781A which is the progress notes signed 22 by Doctor Nestmann that is part of exhibit 1781 which are the j 23 hospital records relating to Harold Young and, Your Honor, I ; 24 would like to pass that report of Doctor Nestmann1s to the 144 1 jury as well. 2 THE COURT: Pine. 3 MR. CARR: Have I given the Court a copy of that? 4 THE COURT: No, I don't have it. 5 MR. HEINEMAN: Has the witness identified it? 6 (Plaintiffs1 Exhibit 1781A is passed to the jury). 7 Q. Doctor, the exhibit X gave you is part of the 8 hospital records, is it not, sir? These two, Doctor, are the 9 same, are they not, sir? 10 A. I have to assume that is part of the hospital 11 record only because there is a room and ward number, bed and 12 doctor. 13 Q. No, Doctor, what I want you to do is to confirm 14 that 1781A is an exact duplicate of the record of Doctor 15 Nestmann's in 1781, that is the hospital records. One is 16 just a copy of the other. That is what I want you to do, 17 sir. 18 A. Okay. 19 MR. HEINEMAN: Do you have a copy of 1781A? 20 MR. CARR: 1781A, counsel, is this here. 21 Q. Doctor, is 1781A that has been passed to the jury 22 is part of the hospital records 1780, is it not, sir? 1781, 23 rather? 24 A. It appears to be. 145 1 Q. Well/ Doctor/ it is exactly. One is a copy of the 2 otherf is it not/ sir? 1781 is an exact copy/ photocopy/ 3 even the tear in the page is the same. One is a photocopy of j 4 the other/ isn't that correct/ sir? 5 A. Yes, it is. 6 Q. And signed by Doctor Nestmann, is it notr sir? 7 A. I believe so.* 8 Q. Doctor/ 1781B is a blowup of the second page of 9 that hospital report signed by Doctor Nestmannr is it not/ 10 sir? 11 A. Yes/ I believe it is. i 12 MR. CARR: I offer 1781B into, evidence/ if it please 13 the Court. 14 MR. H3INEMAN: Can we have the same record/ Your 15 Honor? 16 THE COURT: Sure. 17 MR. HEINEMAN: With respect to 1781. | j i| j !t ! 18 THE COURT: I will incorporate all arguments. It 19 is admitted over objection. 20 Q. Doctor, the hospital report is word for word -- the 21 two exhibits bearing Doctor Nestmann"s signature are exactly 22 the same word for word with the exception of one line, I am 23 sorry, three lines referring to the Carnow medical index and 24 the impression of severe psychoneurosis, isn't that correct, 146 1 sir? . 2 A. It does appear that way, sir. I I j 3 Q. And, Doctor, the progress notes from this hospital 4 report that was sent to the commission or given to the Jj 5 compensation commission does not contain the impression of i 6 severe psychoneurosis for Harold Young, does it, sir? 7 A. I don't know, sir. 3 Q. Look at it, sir, if you would, 1780, sir? 9 A. Yes, sir. I have it right here. I | j10 Q. It does 4not con'tain, does it, sir, the diagnosis of ! 11 severe psychoneurosisfor Harold Young? j 12 A. No. But I don't know whether this was sent to the 13 commission. 14 Q. Doctor, you see that marked Employers Exhibit 1? 15 It is part of the record that was sent to the commission and j j 1 i i ! 16 that is in the commission's record. You do see that, do you 17 not, sir? 18 A. No, I don't.Where does itsay that? j J i ; 19 Q. Doctor, if you would look at the exhibits that have 20 been given you, this is where it says it, sir. i j 21 A. No, sir. It doesn't say that, sir. 22 Q. It doesn't say severe psychoneurosis? 23 A. No, it doesn't say that this is part of the 24 commission's record. This does not refer to that record, 147 1 sir. This is only an index and it has somebody else's name i i! 2 on it. 3 Q. Doctor, this has been given to us and the Court has 4 admitted it into evidence as part of the commission's 5 record. Would you accept that as correct and true, sir? 6 A. If that is the case, I accept it but -- 7 Q. And, Doctor, this particular report is listed as 8 Employers Exhibit Number 1 in these commission records, is it 9 not, sir? 10 A. There is an item which reads Employers Exhibit 11 Number 1, yes, sir. 12 Q. And that item is the progress notes dealing with 13 Harold Young, signed by Doctor Nestmann, is it not, sir? 14 A. It appears to be that, sir. 15 Q. And, Doctor, it is word for word identical to the 16 hospital record, progress notes, with the exception that the 17 impression of severe psychoneurosis and the sentence 18 preceding that is omitted from the report given to the ii | i j fi i i I j i j I \| i\ 19 commission, isn't that correct, sir? 20 A. Well, all I can say is that it doesn't contain j i 21 those three lines, sir. 22 Q. Doctor, I would like for you to answer my question i 23 that the two reports are word for word identical with the 24 exception that the hospital notes, Exhibits 1781 and 1781A i 148 1 include the severe psychoneurosis impression of Doctor 2 Nestmann, isn't that correct, sir? ii 3 A. That is correct. 4 Q- Doctor, are you aware of the fact, sir, that this j 5 is considered editing? * 6 A. No, sir. It doesn't have to be that at all. 7 Q. It doesn't have to be that at all? 8 A. No, not at all, sir. 9 Q. But it is, isn't it? 10 A. No, sir. i! j !i i 11 Q. Doctor, did Doctor Nestmann arrive at an impression j 12 as part of the hospital records that this man was suffering I 13 from in his impression severe psychoneurosis? 14 A. Yes. 15 Q. The man was hospitalized, was he not, sir, by 16 Doctor O'Dell? * i I 1 I i j 17 A. I don't know who he was hospitalized by, sir. j18 Q. If you look at the front of the exhibit, it will i 19 tell you. His doctor is Doctor O 'Dell and he was employed by j 20 Monsanto. That pay is going to be by Monsanto. Private | 21 pay. Doesn't it say that, sir? 22 A. I don't see v/hat you are referring to, sir. I see 23 O'Dell's signature July 27, 1955, but I don't see the other. 24 Q. Doctor, would you look at the exhibit that is the 149 1 hospital record Herbert J. Thomas's exhibit 1781, sir? 2 A. I have itr sir, * 3 Q. Nov;, do you see, sir, that it is the Herbert J. 4 Thomas Memorial Hospital record? 5 A X do * 6 Q. And do you see that the admitting doctor is Doctor 7 O'Dell? 8 A. Yes. 9 Q. And do you see that it is the employer Monsanto? 10 A. Yes, I do. 11 Q. And do you see that the account will be billed to 12 Monsanto, private pay? 13 A. Yes, I do, sir. 14 Q. And, Doctor, the next two pages of those hospital 15 records contain, does it not, sir, the Nestmann report? 16 A. Yes, sir. 17 Q. And, Doctor, so that you can see that they are in 18 chronological order, Monsanto has put microfilm page numbers 19 or page numbers on this exhibit and this report is in the 20 exact chronological order, is it not, sir, on these hospital 21 records? 22 A. I believe this is just one hospital record, sir. 23 One single record, that is correct. 24 Q. Doctor, my question to you is, you can examine the i !t 150 1 numbers on Exhibit 1781 and you will see that they are 2 numerically consistent/ one follows the other/ they are all 3 part of one record, are they not, sir? This is the- way it 4 was given to us by Monsanto, Doctor Suskind. Do you see 5 that, sir? 6 A. Yes, I do, sir. 7 Q. And, Doctor, this report which contained -- when 8 the man was hospitalized for his various problems and worked 9 up and examined by Doctor O'Dell, Doctor O'Dell caused to be 10 included in that record these progress notes, did he not, 11 sir? 12 A. I believe he wrote progress notes, yes. 13 Q. No, he wrote at the bottom of page two, sir, copy 14 for chart, Richard O'Dell, M.D., isn't that right, sir? On 15 the page number 9566145, sir? 16 A. Correct. 17 Q. And he caused Doctor Nestmann's report to be 18 incorporated in this hospital chart, did he not, sir? 19 A. Yes, X believe so. 20 Q. And there is no question that what he would have 21 known and Doctor Nestmann would have known, that the hospital 22 progress reports have been part of the hospital records in 23 July of '55 contain Doctor Nestmann's impression of severe 24 psychoneurosis, isn't that correct, sir? 151 1 A. I assume so. 2 Q. Doctor, I don't want you to assume so. I want you 3 to look at the record and be sure that Doctor O'Dell who put 4 his signature on this chart as well as Doctor Nestmann would 5 have been aware of the diagnosis or the impression of Doctor 6 Nestmann, that is severe psychoneurosis on the part of Harold 7 Young. Doctor, you are now looking at the report that was 8 given to the commission. My question to you -- 9 A. I am comparing them, sir. Yes. 10 Q. Didn't you already agree that they were the same 11 word for word, sir, except for the impression that was left 12 out? 13 A. No, sir. I did not. This is a copy for chart 14 signed by Richard O'Dell and is not in the report allegedly 15 submitted to the commission and there may be reasons for 16 that. 17 Q. Doctor, it wasn't allegedly submitted to the 18 commission. These records including the compensation i 19 commission reports are reports that were given us by your 20 employer, Monsanto. They have been admitted into the record 21 of the evidence of this court. The Court has taken judicial ! 22 notice of the compensation commission. It is not alleged, 23 Doctor. 24 MR. HEINEMAN: Objection to the statement that the 15`2 1 witness is employed by Monsanto. I think Mr. Carr knows 2 better than that. 3 THE COURT: Objection is overruled. 4 Q. Doctor^ the records in the commission that the 5 commission had of Doctor Hestmann's report. Employers Exhibit 6 Number 1, does not include the diagnosis of severe 7 psychoneurosis, does it, sir? 8 A. It does not and there could be reasons. 9 MR. CARR: Your Honor, would you instruct the 10 witness to quit responding -- I know there could be reasons 11 but quit volunteering things of that sort. Your Honor. 12 THE COURT: Doctor, again, you were offering j i i jI i 13 comments that are not called for within the scope of the 14 question that has been asked of you. I have asked you a 15 number of times today and I am asking you again please 16 refrain from doing that. Just answer the question that is 17 asked of you. No more, no less. 18 Q. And, Doctor, so that it is crystal clear, there is 19 no question that what Doctor Nestmann said, his impression of 20 Harold Young is that he has got a severe psychoneurosis based 21 upon his Cornell Medical Index Health Questionnaire and that 22 this isn't a part of the record that was in existence in July 23 of 1955, isn't that correct, sir? 24 A. In Exhibit 1781 and 1781A, yes, sir. 153 i 1 Q. Isn't that correct/ sir? 2 A, It is in 1781 and 1781A, sir. 3 Q. And, Doctor/ it was in existence prior to the time 4 of the compensation commission hearing, was it not, sir? 5 A. I don't know that, sir. 6 Q. You don't know that, sir? 7 A. No. 8 Q. Do you see the same date, Doctor, on the exhibits? 9 And, Doctor, do you recall that you testified before the 10 compensation commission in 1956, sir? 11 A. I recall that, sir. 12 Q. And if you will look at the state compensation 13 commission page preceding Doctor Nestmann's report or it is 14 on the very same page that Doctor Nestmann's report starts, 15 it bears a date there of the 20th day of July, 1956, sir? 16 A. I am not sure I am following you, sir. What 17 exhibit? 18 Q. 1731A, sir. 1780A, I am sorry. 19 A. May I see it, sir? 20 Q. Right there, Doctor. July of 1956? 21 A. Yes. ! 22 Q. There is no question but what Doctor Nestmann's 23 report, that the man has severe psychoneurosis, was in 24 existence prior to July of 1956, prior to November of 1956, I T i 154 1 isn't that correct# sir? 2 A. Yes. Doctor Nestmann's report in 1955# 1 see* 3 Q* And, Doctor, the report that was in existence in 4 1955 as part of the hospital records was edited, was it not, 5 sir? | 6 A. No, sir. 7 Q. Doctor, what do you consider editing means? Let me 3 answer it for you, Doctor. Editing is changing? 9 A* Well, you ask me a question and let me answer it* 10 Would you like me to answer your question, sir? J 11 12 to -- HR. CARR: Your Honor, would you direct the witness jjI I ! 13 A. Well, he asked me aquestion. | i 14 MR. HEINEMAN: Objection. He asked him a question. ! f 15 THE COURT: And then he modified it and he has the 16 right to do so. Objection is overruled. ] i i 17 Q. Okay. | t i 18 THE COURT: Wait until the question is fully asked 19 of you and then answer it,please. I 20 Q. Doctor, editing means change, doesn't it, sir? * 21 A. Not necessarily. 22 Q. Well, what else does it mean? 23 A. It means looking through a report and making sure 24 that the report is accurate. The report is accurate 155 1 .grammatically/ it is accurate factually, it is accurate in i 2 this instance in the way of impressions or diagnoses. There 3 are a variety of things that in a medical report are 4 considered editing. 5 Q. Doctor, you do consider, then, that this report was 6 changed, was it not, sir? 7 A. No, sir. 8 Q. Doctor, is the report that was in existence in 1955 9 by Doctor Nestmann, did it contain an impression severe 10 psychoneurosis? 11 A. No. But that doesn't mean that it was edited. j 12 Q. It did contain that, did it not, sir? | ! 13 A. It might have been inserted later, sir. j 14 Q. Doctor, excuse me. How could it be inserted j t j 15 later? It is in the hospital records that came in in July of j tT 16 55, sir. t 17 A. Okay. 18 Q. But that is not an insertion later, is it, sir? 19 Excuse me, Doctor. That is not an insertion later, is it, 20 sir 21 A. It could be. It could very well be. 22 Q. Doctor, this is in a report that is part of the 23 hospital records dated July of 1955, isn't that correct, sir? ! 24 A. Yes, sir. We have -- : 156 1 Q. And, Doctor, that preceded the report that was j 2 given to the commission by a year at least, did it not, sir? 3 It was earlier than the report given to the commission, 4 wasn't it, sir? 5 A. I don't know when this report was given to the j 6 commission, sir* 7 Q. Doctor, I have given you the date* The date of the 8 hearing was November of *56. There is a date appears on the 9 same page of July of *56. That is a year before the hospital 10 record was made, is it not? ! ; i 11 A* Yes. | i 12 MR.- HEINEMAN: Your Honor, may counsel approach the ] i 13 bench? \ 14 THE COURT: Yes, you may. ji 15 (Bench conference had out of the hearing of the j 16 jury.) 17 MR. HEINEMAN: Your Honor, as Mr. Carr knows, the ! j 18 Workmen's Compensation Commission hearing went on for a very ! 19 long period of time. To just allege to this witness that the | 20 only hearing was November of '56 when this witness testified 1 21 is patently false. 22 MR. CARR: I am not suggesting that is the case. 23 MR. HEINEHAN: That is the hearing date that you 24 gave him. 157 I! i I 1 HR. CARR: It is a side issue. It has nothing to do | 2 with the question. The question is there is a report in 3 existence of July of *55 and this report came into existence 4 July of 1955 and that is the date the same exhibit was given 5 to the commission and bears the same date. All of it. 6 HR. HEINEMAN: You are putting them in a 7 chronological sequence which is not borne out, Mr. Carr. You 8 are saying that it has to be before because the hearing was 9 in November. There were hearings for three years on this, on 10 these workmen compensation matters in Nitro, West Virginia. 11 MR. CARR: The commission couldn't very well have 12 been prior to July of '55, could it, counsel? 13 MR. HEINEMAN: I don't know exactly when they 14 started, 15 MR. CARR: This particular hearing could not have 16 been in existence prior to July of *55. There is no way. 17 There could have been a hearing that predated July of *55 18 with regard to this exhibit. 19 THE COURT:Objection is overruled. Let's i j 20 proceed. ! 21 MR. HEINEMAN: Your Honor, further, Mr. Carr has .j ij 22 suggested that this document, 1781, is in chronological order ! 23 and I don't think it is. 24 MR. CARR: It is in the order it was given to me by j i 158 i 1 Monsanto. 2 MR. HEINEMAN: That isn't the point, Your Honor. I 3 He made a representation that it was in chronological order T 4 and, therefore, these documents necessarily followed each ([S i 5 other in a particular sequence. I don't think that is ; 6 accurate. It covers all kinds of dates. 7 MR. CARR: So what? 8 MR. HEINEMAN: You are basing a premise on 9 sequence. 10 THE COURT: Let's go ahead. Objection is 11 overruled. !ti j 12 (The following proceedings were had in the1hearing 13 and presence of the jury). j j j 14 Q. Doctor, the reportthat the commission has in its ! i 15 file is changed from the report that Doctor Nestmann created j! 16 in July of '55, isn't it, sir? * 17 A. No, sir. 18 Q. Look at the two reports again, Doctor. j i 19 A. It is different but I don't think that one can say * 20 it was changed. This* might have been submitted to them not ! i 21 in *56, it might have been submitted to them in '55 when the 22 patient was being discharged and I don't know that the 23 Cornell Medical Index which is recorded in the hospital 24 record, the Cornell Medical Index Test was not done after his 159 1 hospitalization or after this was actually submitted. That 2 is a real possibility. That is a real possibility that the 3 Cornell Medical Index Test was may be done in Doctor 4 Nestmann's office. That is a possibility and he then added a 5 real possibility that he simply added this man was asked to 6 fill out a Cornell Medical Index questionnaire and this shows 7 evidence of psychoneurosis. I don't know from this record 8 whether it was done in the hospital or after the man was 9 discharged and, therefore, I cannot say that this record was 10 changed. It simply doesn't contain that statement. 11 Q. Doctor, when was the man discharged? Let me help 12 you, Doctor. On the first page he is discharged .on July 27, 13 1955. The bottom of the page, Doctor, of the 1781? 14 A. July 27, 1955, yes, sir. 15 Q. And when was he admitted to the hospital. Doctor? 16 A. I assume that -- 17 Q. It is also on the cover page, Doctor. July 22, 18 1955? 19 A. Admitted? 20 Q* Yes, Doctor. 21 A. Well, then how can this report be July 6? 22 Q. Doctor, could you answer my question? It shows July 23 22, 1955, does it not, sir? 24 A. Yeah. Which differs from the report. 160 1 MR. CARR: Your Honor, would you direct the witness 2 to answer my question? 3 THE COURT: Doctor. Again -- 4 Q. Okay. Sorry. 5 THE COURT: Remember what I said before. Confine 6 your answers to the questions/ Doctor. 7 Q. And/ Doctor -- 8 MR. HEINEMAN: Objection. May counsel approach the 9 bench? 10 THE COURT: Yesf you may. 11 (Bench conference had out of the hearing of the 12 jury.) 13 MR. HEINEMAN: Your Honor, this is what I am 14 talking about in terms of this sequence business that Mr. 15 Carr has alleged. The witness has laid eyes on something 16 that I didn't even see. The hospital record shows he was 17 admitted 16 days after this report. 18 MR. CARR: Exactly right, counselor. We have 19 already established that Doctor O'Dell had it made part of 20 his chart. It said so. If you turn the page, counsel, you 21 will see that. We have already established that Doctor 22 O'Dell -- 23 MR. HEINEMAN: That has nothing to do with it. 24 MR. CARR: That is what you think. 161 1 THE COURT: Objection is overruled. 2 (The following proceedings were had in the hearing 3 and presence of the jury). 4 Q. Doctor/ the man was admitted on July 22 and 5 discharged on July 27, was he not, sir? 6 A. That is what the head sheet of the Thomas Memorial 7 Hospital indicates/ sir. 8 Q. And Doctor Nestmann*s report was made on July 6, 9 1955, was it not, sir? 10 A. That is correct. 11 Q. Prior to the time the man entered the hospital on | 12 that particular time, isn't that correct, sir? July 6 is j i 13 before he was admitted to the hospital on July 22, isn't that ; ii 14 correct, sir? t'ii 15 A. That is correct, sir. j j) 16 Q. And, Doctor, the report of Doctor Nestmann was 17 written by Doctor O'Dell at the bottom. It says copy for 18 chart, isn't that correct, sir? Richard O'Dell, M.D.? 19 A. That is correct. !i I j 20 Q. And, Doctor, we have already established what 21 Doctor O'Dell did. He had Doctor Nestmann's report and he 22 put it in the hospital record as part of Harold Young's i! I i 23 chart, isn't that correct, sir? 24 A. That is what Doctor O'Dell did, sir? i 162 1 Q. That is correct, sir, is it not, sir? 2 A. Yes. i i 1 I 3 Q. All right. Now, Doctor, that was in existence, 4 therefore, in July of '55, was it not, sir, with the 5 diagnosis on it psychoneurosis, severe psychoneurosis? i 6 A. I am actually confused, sir, about the sequence. 7 Q. Doctor, this report was in existence in July of 8 1955 bearing the diagnosis severe psychoneurosis, was it not, 9 sir? 10 A. Yes, it was. ii 11 Q. And, Doctor, the document given to the commission j 12 and as part of this record, sir, does not contain that 13 diagnosis, does it, sir? 14 A. It doesn't contain thatparticular diagnosis. 15 Q. It is changed or different from the diagnosis that 16 vas made in July of *55, is it not, sir? 17 A. No. No, sir. 18 Q. Are you reading the same report, Doctor, that I am 19 reading? j* j i j i I] 1 i | i j t ! 20 A. Yes. I am reading 1780A. ^ 21 Q. Does the document that is in the commission record, 22 does it include the diagnosis of severe psychoneurosis? 23 A. It doesn't include any diagnosis, sir. 24 Q. Doctor, does it include the diagnosis of severe 163 1 psychoneurosis? 2 A. No, it does not. 3 Q. It is different from the July of 1955 report that 4 is part of the hospital records, is it not, sir? 5 A. . It is. 6 Q. And, Doctor, is a change -- when one edits 7 something, does one change something? 8 A. if you are asking about a general statement -- 9 Q. Yes, Doctor, when one edits something, does one 10 make it different than what it was? 11 A* Might. 12 Q. And, Doctor, the report that was given to the 13 commission is changed from the report that was in the 14 hospital record? 15 A. No, sir. It is different. Not changed. 16 Q. Doctor, does it contain the diagnosis, that is, 17 severe psychoneurosis? 18 MR. HEINEMAN: Objection.Asked and answered. 19 THE COURT: Objection is overruled. 20 A. There is no diagnosis on that chart, sir. The 21 diagnosis is not there, sir. 22 Q. The question I have asked you, does it contain the 23 diagnosis of severe psychoneurosis, 24 A. It does not, sir. Doctor? . j j | ! | j i i | i j j j j ii ` i ! it 164 1 Q. Doctor, the reports that you read of Doctor 2 Nestmann that were given to the commission, not just with i l j i! 3 Harold Your^g but all of the reports signed by Doctor Nestmann 4 of which yoju are aware, none of those reports contained the 5 diagnosis of Doctor Nestmann, that is that the man had these 6 severe, moderate or mild psychoneurosis, isn't that correct, 7 sir? 8 A. That is not so, sir. 9 Q. Doctor, this morning Monsanto delivered to us the 10 workmen's compensation records that contain Doctor Nestmann's 11 report, his written reports that were submitted to the ! 12 commission. I have placed a yellow tab on each of those ( 13 reports that is in!1782. I would like for you to look at 14 each of those reports, sir, and tell me if there is a single 15 one of those reports that contains a diagnosis of severe 16 psychoneurosis? 17 MR. HEINSMAN: Objection, Your Honor. May counsel 18 approach the bench? 19 THE COURT: Yes, you may. 20 (Bench conference had out of the hearing of the 21 jury.) 22 HR. HEINSMAN: I object, Your Honor, to this 23 procedure when Mr. Carr is allowed to make these outrageous 24 statements. First of all, he is implying that we just gave i 165 1 him these. All right. He asked for them yesterday/ okay. 2 The Court said deliver them last night. All right. We 3 called him at seven o'clock to deliver them last night and he 4 wasn't there. So we gave them to him this morning/ all 5 right. So that is the explanation for that. 6 The second thing is/ these are document that went 7 to the Appeals Board. All you have to do is look at the 8 document. It went to the Appeals Board. It didn't go to the 9 commission and I object to it on that ground. It is an 10 obviously misleading statement. 11 MR. CARR: Three weeks or four weeks ago I asked for 12 all of the reports that Monsanto had relative to Doctor 13 Nestmann. All the reports that Monsanto made. We were 14 delivered a small stack of reports by Doctor Nestmann by Mr. 15 Nassif in which he said these are all the reports by Doctor 16 Nestmann that we have. Now/ yesterday/ at the conclusion of 17 the day we asked for reports Monsanto had that they had given 18 to the Workmen's Compensation Commission. Lo and behold we 19 come up now and this is what was given to us as reports that 20 v?ere given to the commission/ the ones that have the yellow 21 tab 'on it. They cannot have it both ways. They have 22 represented to us that these were the reports that were given 23 to the commission and the Court ordered them to give us the 24 reports that were given to the commission. These are the 166 1 reports, that we have and these are all the reports that we 2 have and that is the ones that were given to the commission. 3 MR. HEINEMAN: We haven1t finished the compliance 4 yetf Mr. Carr. 5 MR. NASSIF: First of all, Your Honor, this is the 6 report that was given to Mr. Carr long ago. It is a report 7 of Doctor Nestmann. I specifically wrote on the receipt 8 these are reports that you had not previously received. You 9 had that before. Specifically wrote on the report that I 10 gave to Mr. Carr right underneath his name we are providing 11 him only.with those we have not previously produced. 12 THE COURT: You mentioned that the other day. 13 MR. NASSIF: And, Your Honor, this is one that he 14 had. There is proof that he had copies of Nestmann1s 15 reports. 16 MR. CARR: This is one that you gave me three weeks 17 ago, counsel. The one you have in your hands was given me 18 three weeks ago. 19 MR. NASSIF: You are right. You have others like 20 that. If you want me to prove that on the microfilm. 21 MR. CARR: tlie have been past that. 22 THE COURT: We have been through microfilm. 23 MR. CARR: It is not production and you know it. 24 MR. NASSIF: It is so production. 167 i I 1 THE COURT: Wait a minute. Whoa, whoa# whoa. The 2 question whether this is constructive production, whether 3 that complies with the rules is not relevant to the objection 4 that we are making now is a different issue. 5 MR. NASSIF: Let me get to the other issue. The 6 issue is he asked for, he took this memo up to you, Your 7 Honor, and this is the way I understood. I didn't even know 8 about this document when I made ray production. We got this 9 document from Charleston, West Virginia. Okay. But, Your 10 Honor, it says here concerning psychoneurosis so I asked to 11 have the Nestmann reports sent to me from Charleston that had ' 12 to do with psychoneurosis. This is what the document Mr. 13 Carr specifically requested and that is what I got and that 14 is what I produced to Mr. Carr, the Nestmann reports having i j 15 to do with psychoneurosis and he got all of those. Now, he 16 is saying that we should have provided him with what was 17 provided to the corap appeal board in 1957. These aren't -- 18 MR. CARR: That isn't even the issue, Mr. Nassif. ! j 19 MR. NASSIF: Yes, it is the issue, Mr. Carr. These j 20 are the documents that we reviewed at this meeting on 21 November 18, 1955 having to do with psychoneurosis and that i ' 22 is the way I understood it. We didn't have these documents - 23 here in St. Louis. I just sent over to Charleston and they 24 sent me the Netsmann reports on psychoneurosis and that is t. t J i j 168 1 what I produced to him. We didn't have these document here, 2 Sof I object to him saying that we did not in good faith 3 respond to your prior order three weeks ago. 4 In addition/ he has got numerous documents like 5 this one on the microfilm and we have always, as I said on 6 the receipt that we gave to him, we indicate that with the 7 exception of what we have previously produced we are 8 supplementing what we had on these reports on psychoneurosis 9 so we did honor this request. This was produced following 10 your order yesterday for us to produce what Monsanto gave to 11 the commission. I asked. I found a copy of this that we did I 12 just receive and I produced it this morning because it was in j 13 Belleville as was instructed. I called last night at seven 14 twice. Nobody answered. I was in the office at 7:30 this j 15 morning looking through more document. We worked until 10 16 o'clock last night, so we have done everything we can to 17 comply with your orders in good faith. 18 We gave him this. It does have Nestmann's reports i j ! j 19 in it that I found out about as I was going through it and 20 these reports do not discuss psychoneurosis or -- obviously, |i 21 I asked for the reports that discuss psychoneurosis. That is 22 what I got from Charleston and that is what I produced to 23 him. i ' 24 MR. CARR: That isn't the issue. Counsel has 169 1 objected to me telling this witness that these are all Doctor 2 Nestraann reports that we have that were submitted to the 3 commission and it is indeed. All the Doctor Nestmann reports 4 that we have that were submitted to the commission* They 5 were delivered to us just this morning- He has already 6 represented to him that we did this sometime ago. 7 HR. HEINEMAN: First of all# we don't know yet 8 whether these are all the reports. 9 MR. CARR: Then how can you object to that statement 10 that these are all the Nestmann reports? 11 MR. HEINEMAN: Because we think there are more. We 12 think there are more. j 13 MR. NASSXF: We know there are other comp files. 14 THE COURT: Basically at this point in time you are 15 saying you think there are more, you don't know if there are 16 any more. You don't know if there are any more and as long 17 as it is purposefull, that is all that we have at that time. 18 Then we have to wait and see what else comes out at 19 Charleston. 20 MR. NASS IF: lie know that Nestmann did reports and 21 each one of those individuals that he did reports on has got 22 a record like this in front of the comp commission. My logic 23 would tell you that since this is Harold Young and his -- 24 MR. CARR: Harold Young is in here, counsel, just 170 1 exactly like that one. 2 MR MASSIF: But there are other reports like this 3 one for other plaintiffs claiming amounts in the corap hearing 4 so there are other documents Whether we have them or not, I 5 don't know. That is what we called Charleston for but I can 6 tell you there are others in the comp file like this. 7 MR. CARR: I want to get them all. 8 MR. HEINEMAN: My point here. Your Honor, is that 9 this is a document that was submitted to the Workmen's Comp 10 Appeals Board. It isn't necessarily all documents. 11 MR. NASSIF: 1957, Your Honor. It is a year after 12 this situation. So to confuse '82, they are different . 13 proceedings. This one is a 1957 in May and that is in mid 14 1956. | 15 MR. CARR: So what? My.question still stands. That j 16 this is all the Doctor Nestmann reports that were given to us | I 17 that were submitted to the compensation commission. That is I 18 an accurate statement, an accurate representation to the i J 19 witness. ii j 20 MR. NASSIF: I don't think that is an accurate ^ 21 representation, Your Honor, based on the microfilm and we 22 still consider the microfilm to be production. These 23 documents came off the microfilm. There are other documents ! 24 like this. 171 ! 1 THE COURT: At this point in time without any 2 further production/ the statement that was made when these 3 documents were referred to in front of the jury, that that is 4 what we have got at this point in time, it is accurate. I 5 think for the sake of accuracy, you should indicate that 6 these were submitted to the Appeal Board but it does not make 7 improper the statement because it is part of the Workmens 8 Compensation proceeding and -- 9 MR. CARR: Your Honor, even on that point, this is 10 the record that came from below that was submitted to the 11 Appeals Board. It had to be part of the record below or it 12 would never have gone up. 13 MR. MASSIF: It is a brief we filed with the Appeal 14 Board, Your Honor. i 15 THE COURT: Are you claiming that this is briefing 16 an appeal and would be submitting new evidence to the Appeal 17 Board at the Comp Commission? 18 MR. NASSIF: I don't know. Your Honor. They might 19 very well be. I am sure there was an argument that they j i j 20 hadn't submitted to the commission and this is about a 50 \ 21 page argument. 22 THE COURT: The legal argument, I would think that ^ i 23 they hadn't, but are you telling me that -- wait a second. 4 24 Are you telling me that they are going to attach new I iI 172 i 1 exhibits? 2 MR. MASSIF: I don't know, Your Honor. I really 3 don't. 4 MR. HEINEMAN: What you have to do is look at it. 5 THE COURT: I think that is very unlikely. 6 MR. HEINEMAN: If you look at it, you will see what 7 is in there. For example, a summary of testimony. In other 8 words, they are summarizing what so and so testified to about 9 a particular ailment. That is in there. 10 MR. CARR: Sure, and the reports. 11 MR. HEINEMAN: Something prepared for the Appeal 12 Board. 13 MR. CARR: And the reports of Nestmann man were 14 submitted at the hearing. Those statements are also in 15 there. 16 MR. NASSIF: Not in this form. There are no 17 Nestmann reports in that form. 18 MR. CARR: So what? The question that I have given 19 the witness is that these are all of th Doctor Nestmann 20 reports that were submitted to the commission that had been 21 given to us and these were given to us this morning and 22 challenging him to find the Nestmann reports of the severe 23 psychoneurosis. That is the point. You are challenging the 24 statement that these are not the records of the commission. 173 1 They are the records of the commission. It is all the 2 records of the commission that have been given us as of this 3 morning. 4 MR. NASSIF: It is not all of the records of the 5 commissionr the records of the commission. 6 MR. CARR: That have been given us by you# counsel. 7 MR. NASSIF: They are from Monsanto as attached to 8 a brief as we have filed. 9 MR. CARR: That have been given us. 10 MR. NASSIF: To date. We got the request 11 yesterday. 12 THE COURT: Okay. The indication on page 11 of the 13 brief# it concludes that the summaries of testimony were 14 submitted to the commission and I think it is very unlikely 15 that in a matter such as this it would have been submitted on 16 the appeal. The objection is overruled. You may proceed 17 without modification. I think the appeals document reflects 18 what went on below as one would normally think an appeals 19 document to do. You may proceed. 20 (The following proceedings were had in the hearing 21 and presence of the jury). i 22 Q. Now, Doctor, while we were at the bench, have you 23 had a chance to check all the Doctor Nestmann reports 24 submitted to the commission? 174 1 A. 1 had a chance to look through a few of them/ sir, 2 yes. 3 Q. Doctor, I want you to check them all, all the 4 Nestmann reports and tell me whether or not a single one of 5 those reports contain an impression or diagnosis that these 6 men had severe psychoneurosis or mild or even moderate 7 psychoneurosis? The ones that have the yellow tab on them, 8 Doctor, are the ones that are the Nestmann reports. To save 9 you time. You are not even close to the yellow tabs, 10 Doctor. 11 A. I understand, sir. 12 Q. Let me help you, sit. 13 A. There are some Nestmann reports before that, sir. 14 Q- Doctor, there are not Nestmann reports before 15 that. There are references to Nestmann testimony. My 16 question to you, sir, relates to Nestmann reports. Will you 17 look at the ones that have the yellow tab, sir? 18 MR. HEINEMAN: Excuse me, Your Honor. Is there a 19 mark on that exhibit of an Exhibit Number? 20 A. Yes, there is. 21 THE COURT: I think so. 22 A. 1782. 23 MR. HEINEMAN: Has it been offered? 24 MR. CARR: No, it hasn't been offered, Your Honor. 175 1 THE COURT: I don't believe it has. My records 2 show it has not been offered. 3 MR. HEINEMAN: I would object to asking the witness 4 about it until it has been offered. 5 MR. CARR: Your Honor, I am asking the witness to 6 examine the exhibit and to answer a question relative to 7 whether or not there is a single Nestmann report there that 8 has that diagnosis. I don't think I have to offer the 9 exhibit in order to ask the question. 10 THE COURT: Gentlemen, could you approach the 11 bench, please? 12 (Bench conference had out of the hearing of the 13 jury.) 14 THE COURT: I would rather this type of thing go on 15 up here. 16 MR, HEINEMAN: If the Court is taking judicial ! 17 notice of these matters that are, you say, that is an | i 18 extension of the Workmen's Comp Commission, if you are indeed 19 taking judicial notice of it, then I think it ought to be 20 offered and it ought to be admitted before the witness is 21 questioned about it. 1 22 MR. CARR: Your Honor, the fact that the Court has ! J T 23 taken judicial notice of the authenticity does not mean that * 24 the exhibit thereby automatically becomes admissible. There 5 176 1 are a lot of reasons to keep out authentic documents about I 2 which there is no question of authenticity and simply because 3 the Court takes judicial notice of records, the Court doesn't 4 mean they are admissible I don't intend to offer this 5 document because it is a Monsanto produced document and 6 contains a number of self-serving statements on the part of 7 Monsanto. I ask that the witness examine it because it is 8 that these are reports that are submitted to the commission 9 and I am asking the witness to tell us whether or not there 10 is a single report there because he has said that they did 11 submit reports to the commission that were not edited, that j i j 12 contained the diagnoses and this is an effort to impeach this | j 13 witness and to impeach Monsanto as to what they really did | i 14 not do. j 15 Now, there are a wide variety of statements in the iI!| 16 Monsanto document, self-serving statements that do not become ! i 17 admissible simply because the Court will take judicial notice i 18 of the authenticity of a particulardocument. 19 MR. HEINEMAN: Your Honor, I will mark it and I 20 will offer it. We are in the Defendant's case. Iwill mark I j j i 1 21 it and I will offer it and have the Court take judicial 22 notice of it. 23 MR. CARR: At an appropriate time you can mark it * 24 and you can offer it and I can object to it if I have I 177 1 objections to it. j 2 MR. HEINEMAN: Well, I will mark it and offer it 3 right now. 4 MR. CARR: Counsel, you cannot because I have got 5 the witness at this point in time and I am asking the witness 6 questions and I would object to you doing anything of the 7 kind to interfere with ray cross examination. 8 THE COURT: You can mark it and offer it later. 9 Objection is overruled. 10 (The following proceedings were had in the hearing 11 and presence of thejury). ' 12 Q. How far along are you, Doctor? j i ! 13 A. I have a little more to go. 14 Q. Doctor, you are taking these reports out of the 15 exhibit, out of the order that they were in. I didn't ask 16 you to do that. i j i J jI 17 A. Well, Iwant tomake sure that I have all of the 18 Nestraann -- 19 Q. Doctor, all I asked you to do was to look at the | ij t! 20 ones with the yellow tab. 21 A. I am doing that, sir. 22 Q. Sut you are doing more than that, Doctor. You are 23 breaking up the exhibit. 24 A. Not really. I am simply -- 1 i 1 i ! f i 178 ti 1 Q. Doctor, don't take any more out, Doctor, but 2 looking at the exhibits that have the pages that have the 3 tabs on them and see i those are Nestmann reports and 4 whether or not they contain a statement of severe 5 psychoneurosis or moderate or mild psychoneurosis, will you 6 do that please, Doctor? 7 A. Yes, sir* 8 Q. Doctor, that is not a Nestmann report. Here is the 9 yellow tab here, sir. Doctor, the page you are looking at is 10 not one with a yellow tab on it. It is not a Nestmann 11 report. 12 A. It is a diagnostic report, sir. 13 Q. Doctor, this is a summary about Doctor Nestmann1s 14 testimony by counsel for Monsanto. I am asking you, Doctor, 15 to look at the Nestmann reports submitted by Monsanto. 16 A. That is reference. 17 Q. This is not a report. You see it says summary of 18 Doctor Nestmann1s testimony. You know the difference between 19 testimony and a report, don't you, Doctor? 20 A. I believe I do, sir. j j | J ji I I i ! ii ! ! | i I 21 Q. Thank you, Doctor. One more, Doctor. 22 A. If you allow me to read these, I will be happy to 23 answer your question. 24 Q. Doctor, I am allowing you to read them. I want you 179 i 1 to look for statements in the reports of the psychoneurosis? 2 A. I would like to have the time to read them, sir. 3 Q. Now, Doctor, you have looked at all the pages that 4 have yellow tabs on them. On those Doctor Nestmann reports, 5 was there any mention to the commission in those reports that 6 any of the workers had severe, moderate or mild 7 psychoneurosis? 3 A. On these reports sent to the commission, sir -- 9 Q. Could you answer my question. Doctor, please, sir? 10 A. Well, in those reports, sir, I don't see any 11 mention of psychoneurosis. 12 Q. Thank you, Doctor. 13 THE1COURT: Mr. Carr, we are going to have to break 14 at this time. 15 MR. CARR: Yes, Your Honor. That is part of the j ( 16 record. 17 THE COURT: Ladies and gentlemen, we will end the 18 proceedings for the day at this time. We will resume again 19 tomorrow morning at 9:30. I would remind you as I do on any 20 overnight break you are not to read, listen to or watch 21 anything about this case in particular or the subject matter 22 in general in any of the media. Thank you for your attention 23 and cooperation. Court is adjourned. Gentlemen, could I see 24 you in chambers, please. 180 I I 1 (The following proceedings were had in chambers out 2 of the hearing and presence of the jury.) 3 THE COURT: You wanted to finish making a record on 4 the wipe samples and I cut you off and I told you you could 5 do it later. On the counting of sample results and I told 6 you you could do it later. It is now later. 7 MR. HEINEMAN: Well, what I wanted to do was get 8 into the record the location in the exhibit of the, the 9 specific exhibit number and the page in the exhibit where 10 those items were and my contention that they should have been , 11 provided to the witness, but what I wanted to finish was, it 12 wasn't clear in the record exactly what I was referring to 13 and I don't have the darn record here now, I don't think. 14 Well maybe I do. It is Plaintiffs' Exhibit 1528 and it is 15 the 78th page of that exhibit entitled Table IB Wipes in 16 which all of the samples reflect none detected for TCDD. 17 MR. CARR: What building is that, counsel? 18 MR. HEINEMAN: Well, you told me the whole -- 19 MR. CARR: I didn't even refer to 1528, counsel. I 20 referred to 1530 and 1527. jjii s I ! 1j i j Ii 1 21 1MR. HEINEMAN: You asked the witness about wipes. 22 You asked weren't there wipes. 23 MR. CARR: Of Building 79? J 24 MR. HEINEMAN: Yes, and the wipes are all none 181 1 detected 2 HR. CARR: What building are you referring to? 3 HR. HEINEMAN: I am referring to the same exhibit 4 you were, sir. You said in the record, told the Court that 5 this was building number 79. 6 MR. CARR: What building was the exhibit referring 7 to? 8 MR. HEINEMAN: I don't know what building the 9 exhibit was referring to. 10 HR. CARR: The exhibit that I had, 1530, and 1530 11. was referring to building 78-79, counsel. 12' MR, HEINEMAN: The record will be clear, Your 13; Honor, based upon the representation Mr. Carr made in the 14 record with respect to exhibit 1528 when he was questioning. 15 MR. CARR: I didn't even mention 1528. 16 MR. HEINEMAN: Because you questioned the witness 17 about the sweepings. 18 MR. CARR: Sweepings were in Building 79, counsel. 19 Exhibit 1530. Not wipes, sweepings. 20 MR. HEINEMAN: Well, the record will be clear. 21 MR. CARR: And you have an exhibit that refers to 22 wipes, have you not, sir? 23 MR. HEINEMAN: I have a record that refers to 24 sweepings and wipes. They are both in the same record and 182 1 you read him one and not the other. 2 MR. CARR: That is right, counsel. I did not read I I ! I i 3 hint 1528. 4 MR. HEINEMAN: You read him the sweepings from 1528 5 and not the wipesfrom 1528. | 6 MR. CARR: Well, it is silly to argue, counsel. 7 MR. HEINEMAN: Yes, it is. 8 THE COURT: Okay. My decision at the time I think 9 was right. It was clear I am afraid as often happens in some 10 of these arguments at the bench, we were going over things 11 again and I haven't heard anything that would change my 12 opinion on the ruling I made outthere so I wouldmake the ' 13 same ruling sowe can finish uptherecord. Okay. 14 Gentlemen, see you in the morning. i i j I j t 15 COURT ADJOURNED: 16 17 i j 18 19 20 21 I 22 23 24 183 1 STATE OP ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT SS 3 COUNTY OF ST. CLAIR 4 5 1/ Kimberly Ganzf one of the Official Court Reporters, do 6 hereby certify that the foregoing transcript is a true and 7 correct transcript of the proceedings had in the 8 above-entitled cause. 9 Dated this ^ day of March, 1986. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 184 1 STATE OF ILLINOIS ) ) 2 TWENTIETH JUDICIAL CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR ) 4 i i I j 5 I, RICHARD P. GOLDENHERSH, one of the Judges in and for 6 the Twentieth Judicial Circuit, do hereby certify that the i 7 foregoing transcript is a true and correct transcript of the 8 proceedings had in the above-entitled cause. 9 Dated this ____ day of March, 1986. 10 11 12 13 HON. RICHARD P. GOLDENHERSH J i 14 I i 15 II t i 16 . I 17 ii 18 i 19 20 21 22 23 24 185 1 immL 2 3 In Chambers Conference - 181 4 WITNESSES CALLED ON BEHALF OF THE DEFENDANT: 5 1. RAYMOND SUSKIND 6 Cross Examination by Mr Carr 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 186 t E&.QS. 2 i 1 2 PLAINTIFFS1 3 EXHIBIT MO. 4 1780 1780A 5 1780B 1781 6 1781A 1781B 7 1782 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 EXHIBITS IDENTiFIED 137 140 141 143 144 146 165 187 ADMITTED 139 141 141 144 146 146 ti 1 I i Ii i