Document 3eXLE0G80xoeXmwvKLqQyDkd0

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 FRANCES E. KEMNER, et. al. ) ) 4 Plaintiffs, ) ) 5 VS. ) NO: 30-L-970 ) 6 MONSANTO COMPANY, ) ) 7 Defendant. ) 8 9 10 REPORT OF PROCEEDINGS 11 Before the HON. RICHARD P. GOLDENHERSH 12 JURY TRIAL 13 July 25, 1985 (morning session) 14 15 APPEARANCES: 16 Mr. Rex Carr Mr. Jerome Seigfreid 17 On Behalf of the Plaintiffs; 18 Mr. Kenneth Heineman Mr. Joseph Nassif 19 On Behalf of the Defendant. 20 21 22 23 Debra M. Musielak, CSR, CM 24 Official Court Reporter i 1 INDEX 2 PAGE 3 WITNESSES CALLED ON BEHALF OF THE PLAINTIFF: 4 1. DR. GEORGE ROUSH (2-1102) 5 Clarification Examination.......... . . Recross Examination. . ............ . . 6 2 46 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 / 1 Page. 2 Eaga BXHIBlffl Identified Admitted 3 EXHIBITS' SUBMITTED ON BEHALF OF THE PLAINTIFF: 4 Plaintiff's Exhibit-No.: 5 1513 (Dr. Roush - notes). . . . 32 . . 1514 (Dr. Roush - notes). . . . 32 . . 6 1515 (Pg. 11-3 of Deft. 920). . 54 . .. 7 EXHIBITS SUBMITTED ON BEHALF OF THE DEFENDANT: 8 Defendant's Exhibit No,: 920 (report)................ ........ 54 9 922 (same as Plf. 1513). . . . 32 ........ 923 (same as Plf. 1 5 1 4 ) . . . . 32 ........ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 BE IT REMEMBERED, that on the 25th day of July, 2 1985, the same being one of the regular judicial days of said 3 court, the above-styled cause came on regularly for hearing 4 'before the HONORABLE RICHARD P. GOLDENHERSH, one of the 5 Judges at the St. Clair County Building, 10 Public Square, in 6 the City of Belleville, County of St. Clair, State of 7 Illinois. Whereupon the following proceedings were had: 8 COURT CONVENED: 9 10 DR. GEPBG.EURQD.Sfl 11 (being called as a witness on behalf of the Plaintiff under 12 Section 2-1102, upon being previously sworn, continued to 13 testify as follows) 14 CLARIFICATION EXAMINATION 15 BY MR. KENNETH HEINEMAN 16 Q. Roush, when we left off yesterday at noon time, we 17 were just about to talk about Lowell West, sir? 18 A. Yes, sir. 19 Q. Nov/, with respect to Lowell West, sir, based upon 20 the records that you have before you, would you include 21 Lowell West in-Table 1, in the exposed group under one of the 22 cancers listed there? 23 A. No, sir. 24 Q. And why not, sir? o 1 A. Because a physician didn't mention the fact that he 2 had a skin tumor, only said he has Chloracne. 3 Q. Now, why in your mind would you differentiate 4 between what the physician reported and what was reported by 5 the individual who the interviewer -- 6 A. Well, several things Th physician did 7 examination the man and he did know the condition of his 8 skin, and he knew whether he had any of the cancerous lesions 9 on his face, and not seeing them, he thought there was not 10 any reason for saying this man had a skin cancer. Might have il had a lump that was taken off, but it was probably not 12 cancer. 13 Q. All right. i 14 A. You'd have to talk to him to get the full story, 15 but that's what the record said, 16 Q. Said you'd have to talk to whom? 17 A. That doctor that made no mention of the skin 18 cancer. 19 Q. All right. Now, did Dr. Suskind have access to 20 those physicians? 21 'A. Yes, sir. 22 Q, And prior to classifying those people one way or 23 the other, did he have the opportunity to discuss with his 24 physician -- "3 1 .A. Yes. 2 Q. Exactly what his findings were? 3 A. Yes, sir. 4 Q. And did he have the opportunity to discuss what the 5 man told the physician at the time of the physical 6 examination? 7 A. Yes, sir. 8 Q. All right. Now, with respect to Keith Hill, sir. 9 A. Yes, sir. 10 Q. Based upon the records that you have before you, 11 would you.include Keith Hill in Table 1 as an exposed person 12 for both bladder cancer and skin, cancer ashe'slisted here? 13 A. Yes, sir. He was exposed. He did have amalignant 14 mole. That means he had a melanoma, and the doctor so listed 15 it, so that should been reported, he did have a skin cancer 16 called a melanoma. 17 Q. All right, so you would list him for a skin cancer? 18 A. Yes, sir, 19 Q. All right. Now, with respect to the bladder cancer 20 for which Mr. Hill is listed in Plaintiff's Exhibit 1473 C, 21 would you list him for a bladder cancer? 22 A. No, sir. 23 Q. And would you tell us why not? 24 A. The doctor made a specific point of saying the man. 1 had a benign bladder neck tumor. That's not a cancer. 2 Q. All right, sir. Now, sir, with respect to Clarence 3 Matheny, sir, based upon the records that you have before 4 you, would you include Hr. Matheny in Table 1 as an exposed 5 person with a cancer? 6 A. Yes, sir. 7 Q. All right. And for what cancer would he be -listed? 8 A. Bowel. 9 Q. All right. The bowel -- would the bowel and the 10 colon be equated, we are talking about the same thing? 11 A. . Yes. 12 Q. All right. With respect to Mr. Roy Woodall, sir, 13 based on the records that you have before you, would you 14 include Mr. Woodall in Table 1 as an exposed person having a 15 cancer? 16 A. Yes, sir, I would include him because he had a 17 basal cell carcinoma, it was identified as a basal cell 18 carcinoma. The answer is yes, he was exposed and had a skin 19 cancer, 20 Q. Now, with respect to June Martin, sir, based upon 21 the records that you have before you, would you include June 22 Martin in Table 1 as an exposed person who had a cancer? 23 A. Yes. He had a bladder cancer identified by the 24 doctor, and he was exposed. t; 1 Q. With respect to Frank West, sir, based upon the 2 records that you have before you, would you include Frank 3 West? 4 A. Yes, sir. He was exposed and he had skin cancer. 5 Q. All right. So he would go in Table 1 as an exposed 6 person with a skin cancer? 7 A, Yes, sir. ' 8 Q. With respect to Mr. James McGinn, sir, based on the 9 records you have before you, would you place him in Table 1 10 as an exposed person with a type of cancer? 11 A. Yes. 12 Q. All right. And where would you place him? 13 A. On exposed skin cancer. 14 Q. Okay. And with respect to Thomas Waldorf, sir, 15 would you place him in Table 1, based upon the records you 16 have before you as an exposed person with a cancer of one 17 sort or another? 18 A. The physician's record was not clear, but in the 19 recording on the physical examination there was no mention of 20 a skin cancer, so it's difficult to say whether he had one or 21 not. I'd put a question mark there. You need more 22 information. You ought to talk to the doctor and read what I 23 couldn't read. 24 Q. So on the copy you have, you can't read it, sir? 1 A. .Yes, although the implication is it1s not there 2 because it wasn't mentioned, but we don't have the whole 3 record in our hands, 4 Q. All right. Dr. Suskind, of course, did he have the 5 original record? 6 A, Yes, sir. 7 Q. And he could see the original record and talk to 8 the physician? 9 A. Right. 10 Q, So you would say need more information here? 11 A. Yes. 12 Q. Nov/, with respect to Charles Dunn, sir, based on 13 the records you have before you, would you include Mr. Dunn 14 in Table 1 as an exposed person with a cancer? 15 A. Yes, sir. 16 Q. All right. And what is that based upon, sir? 17 A. Based on the doctor saying he had a skin cancer as 18 well as the workers saying it and the fact he was exposed. 19 Q. And now, Mr. William McClanahan, sir, based upon 20 the records you have before you, v/ould you include Mr. 21 William McClanahan in Table 1 as an exposed person with a 22 type of cancer? 23 A. Yes, I would like to talk to the physician about 24 that, the fact that Mr. McClanahan denied having a skin 7 1 cancer, and the doctor -- and the basis, for him saying he had 2 one, but, on the physical examination he did find a skin 3 cancer, and that may have influenced his opinion of what was 4 before. But, in fact, he had one at the time he was being 5 examined, so it probably means he had one before, but I'm not .6 sure what the doctor meant when he said skin cancer. 7 Q. So -- 8 A. I would say yes, he had skin cancer. 9 Q. So you would include him? 10 A. Yes, sir. But I would like to talk to him and find 11 out why he took, when the worker said he denied he had the 12 cancer, he may have had a pre-malignant one taken off before 13 and the doctor said he probably had had it when he went -- 14 could have been a pre-malignant one, so it isn't clear. i 15 Q. Now, with respect to Mr. James Lewis, sir, based 16 upon the records that you have before you, would you include 17 Mr. Lewis in Table 1 as a person who is exposed and who would 18 be listed as having some sort of cancer? 19 A. I'd say yes for skin cancer. 20 Q. All right. And what about the -- 21 A. And yes for the colon. 22 Q. Or bov/el? 23 A, Yes. 24 Q. Nov/, v/ith respect to Mr. Roy Rqgers, sir, based Q 1 upon the records that you have before you, would you include 2 Mr. Roy Rogers as an exposed person with a cancer? 3 A. He had recurrent skin cancer. I don't understand 4 why the man denied that he had the cancer, that's hard to 5 figure out, but that should be resolved by talking to the 6 physician and understanding what he thought about that. 7 Q. All right. 8 A. And again, I suspect it's because he had 9 pre-cancerous lesions on his face. Now, ?-- but he was not 10 exposed by as far as Dr. Suskind had said, and I would agree 11 with him. 12 Q. Based upon the records that you have before you? 13 A. Yes, sir. There was no evidence that he had 14 exposure? 15 A. Significant exposure? 16 A. The way I should put that when I say no, he had -- 17 he worked in an area where he had probably what would be 18 called minimal exposure, you can't prove he didn't have any. 19 Q. Now what do you mean by that, sir? 20 A. He worked in let's see, what was it? I've 21 forgotten v/hat it is. 22 Q. Why don't we pull out the record,, sir and see if 23 that will help you. 24 A. Right. Q 1 Q Let's see if we have that other exhibit 2 A. Rogers, 422. Yes, 422. Should I go over the 3 record? 4 Q. Yes, please, sir, I just want to be sure we got -- 5 since-it doesn't have his name on it, I want to be sure-we 6 have the right number. Yes, sir. 7 A. Yes. 8 Q. Please go ahead. 9 A. On the work record, he was a production helper up 10 to 1948, and he couldn't have had an exposure at that time. 11 And he worked as a warehouseman shipping, and after three 12 years he was foreman. And, he was in receiving, which means 13 receiving of non-2,4,5-T and non-dioxin exposure-from 1960 to 14 1973, and the only time that he really had any possibility of 15 being involved was when he worked in the warehouse from 1949 16 to 1955, and it's hard to say that he had no exposure, but, 17 the exposure was minimal to none. i 18 Q. Nov;, why would you come to that conclusion, sir? 19 A. Because the nature of the operation is that they do 20 not do anything but handle the material that's going to be 21 sent out, and the sending out of the 2,4,5-T that was shipped i 22 out was shipped out in that, in three different forms. It 23 was shipped out in bags for awhile, it was shipped out in 24 cardboard drums, I call them, and they shipped them out in in 1 aluminum bins. And the exposure of this man, he had nothing 2 to do with bagging, so there was not a dusty job. He really 3 had no exposure. That doesn't mean that there couldn't be a 4 little bit of a material on the surface of the bag. But' 5 that's all. And, there could be occasion where they would 6 spill a bag and break it and have to sweep it up, but again, 7 there is little to know personal contact with any place 8 except the little bit that would be on the surface of the 9 bag. So you can't say none, but, so close to being none it 10 wouldn't be compared with the other types of exposures. So I 11 say no exposure. 12 Q. When yo,u say the other types of exposures, what are 13 you talking about? 14 A. In the production unit in making of the 2,4,5-T and 15 TCP. 16 Q. People that were in there every day? 17 A. Yes. 18 Q. Now with respect to Curtis Postlethwite, based upon 19 the record you have before you, would you include Mr. 20 Postlethwite in Table 1 with a person with exposed cancer? 21 A. No, sir, the doctor didn't mention the fact that he 22 had any problem with his skin and made no suggestion that he 23 had anything would be called a skin cancer. 24 Q. So on this occasion you were relying upon -- are 11 1 you relying upon the report of the physician as opposed to 2 what the individual told the interviewer? 3 A. Yes, sir. 4 Q. And why would you be doing that, sir? 5 A, Because the physician was there and talked to him 6 and to drew his own conclusions about whether that man had a t 7 lump that was taken off of his skin maybe, and looking at his 8 skin in general. 9 Q. So the physician was able to examination his skin? 10 A. Yes, sir, and he didn't think it was worthwhile 11 mentioning. 12 Q. Nov/, with respect to Mr. Homer Scarberry, sir, 13 based upon the informationyou have before you, would you 14 include Mr. Scarberry among the exposed people in Table 1 15 with a type of cancer? 15 A. No, sir. 17 Q. And can you tell me why not? 18 A. When Mr. Scarberry was operated on in 1972 for a 19 lung tumor, if the man had a lung cancer he would have had an 20 operation in addition to having been opened and having the 21 tumor taken out. He would have had a partial lung resection 22 or a total lung removal if he had cancer, and he didn't have 23 that done. So, I don't believe he had a -- didn't have a 24 lung cancer. And if he had a bowel cancer -- we had another 1n 1 case where a man had a colostomy, where if the tumor is in 2 the distal part of the colon the man has had his rectum taken 3 out and the put an opening in his abdominal wall for drainage 4 of the gastrointestinal content. He didn't have that, and if 5 he didn't have a distal colon, he would have had a partial 6 colectomy or part of the colon taken out, just like President 7 Reagan had part of his colon taken out for only a polyp, so, 8 neither one of those things are cancers. They were both 9 tumors that were found to be benign when they got in and 10 looked at them. 11 Q. Now, sir, you refer to the President Reagan 12 operation? 13 A. Yes. 14 Q. Was not that polyp found to be malignant at the 15 time it was removed? 16 A. Yes. Yes. 17 Q. How would you differentiate that from this 18 statement by this physician? 19 A. Because when they got in there and found the tumor 20 and found it was a cancer they did a more radical resection. 21 They took out all of the adjoining colon above and below it, 22 as well as all the blood drainage and supply to that part of 23 the colon they took out. So they do a very wide resection to 24 make sure that they have got all possible cancer, and they 1o 1 didn't do it in this case. 2 Q. So, because of the information that the doctor 3 recorded, you would not include either? 4 A. That's right. 5 Q. Of those as cancers? 6 A. That's right. 7 Q. Nov/ with respect to Mr. Chester Gorrell, sir, would 8 you include Mr. Gorrell in' Table 1, based upon the records 9 you have before you as on exposed person who had a cancer? 10 A. No, sir, and the reason I wouldn't put him exposed 11 is because he was not exposed. 12 Q. And on what do you base that conclusion, sir? 13 A. We did discuss this one before about his exposure. 14 And, what I checked into utilities, just to be sure, the 15 utilities. Mr. Gorrell worked in -- he produced steam that's 16 required and compressed air that's also required, and they 17 compressed ammonia, primarily for refrigeration, and that are 18 the exposures he had, and his time was working in that 19 operation. 20 Q. Would Mr. Gorrell -- he was classified as a utility 21 v/orker, sir? 22 A. Yes. I don't have that record here. 128. 23 Q. 128? 24 A. Yes. And his name is on it. 14 1 Q. Okay. As a utility worker, sir, where would he be 2 employed at the Nitro plant? 3 A. Mr.-Gorrell -- I've got the names mixed up, I 4 should look at the record. Yes. He was a utilities 5 supervisor from 1945 to 1976. And so he was in that 6 operation where they made steam, compressed air and 7 compressed ammonia. 8 Q, He was a utilities supervisor? 9 A. Yes,, sir. 10 Q. Now, would that be in the power plant? 11 A. Yes. 12 Q. Now, the power plant services the plant with power, 13 is that right?i 14 A. Yes. i 15 Q. But how do they do that? 16 A, By power. They have got pipelines carry the 17 material wherever it's needed, the compressed air and the 18 steam and the ammonia. 19 Q. So would a person who worked in the power plant be 20 exposed to the production facility? 21 A. No, sir. 22 Q. Now, sir, if we go through all of those people that 23 we have just been through, and total up what the conclusions 24 you've reached with respect to the inclusion of them, with TG ,1 respect to Chester Gorrell skin cancer, you would say that 2 skin cancer should not be included? 3 A. That!s r'ight. Right. 4 Q. With respect to Mr. Scarberry, there would be no 5 bowel and no lung, correct? 6 A, Correct. 7 Q. Now, with respect to Mr. Postle -- try that one 8 more time. With respect to Mr. Postlethwite, you would not 9 include him in a skin cancer, correct? 10 A. Right. 11 Q. With respect to Mr. Rogers on a skin cancer, you 12 would not include him, is that right? 13 A. That's right. 14 Q. With respect to Hr. Waldorf? 15 A. You skipped those others? 16 Q. Well, those you are including, are you not, sir? 17 A. Yes, yes. You are right. I'm sorry. 18 Q. All of those are being included? 19 A. Yes. 20 Q. Okay. With respect to Mr. Waldorf, that you need 21 more information? 22 A. That's right. 23 Q. So that would be skin? 24 A. Question. 1 1 Q. Question mark? With respect to Hr, Hill you would 2 not include the bladder? 3 A. That's right. 4 Q. Because it was -- the doctor said it was a benign 5 bladder? 6 A. Right. 7 Q. With respect to Mr, Lowell West, you would not 8 include him on the skin? 9 A. Right. 10 Q . Right? With respect to Mr. John Selby with respect 11 to skin cancer, you would need more information? 12 A. That's right, with respect to Mr. Harry Honaker you 13 would include him but one time? 14 A. Yes. 15 Q. That's right? 16 A. That's right. 17 Q. So you would not include both? 18 A. You can't have two people. The way they record 19 that we have here is 7- we are saying that on the Suskind 20 table it talks about persons with cancer, and even though 21 he's got two cancers, he only can have one cancer, can't have 22 two people. 23 Q. The way the data -- 24 A. -- is presented. in 1 Q. Is presented. Now, what would happen, sir, if you 2 listed him twice? 3 A. It would mean that another person had to have had 4 the cancer. If I only had two people there and one man had 5 two cancers and the other one did not, if I put down on that 6 Table 2 cancers, that would mean they each had one, they 7 can't -- j 8 Q. Now, sir, with respect to that, you recall the 9 Moses study, do you not? 10 A. Yes, sir. 11 Q. Of the Nitro population? 12 A. Yes, sir. 13 Q. In what fashion did she express the cancers 14 observed? 15 A. She expressed it in the same way that Dr. Suskind 16 expressed it, but she put that extra cancer as a footnote 17 down below the table, also had such and such a cancer. 18 Q. Now, did Dr. Suskind put such a footnote below? 19 A. No, he did not. 20 Q. Dr, Moses did, however? 21 A. Yes. 22 Q, Now, which one of those cancers would you list and I 23 which would you not? 24 A. I don't knov; how you decide. 1Q 1 Q. All right. One would go and one would not? 2 A. But the way Suskind has it reported, he doesn't say 3 which type, all he says that has cancer. 4 Q. Well, if Mr. Honaker has a prostate and the 5 leukemia, correct, sir? 6 A. Yes. 7 Q. He does list, and he's exposed, does he say, does 8 he list the prostate cancer along the exposed in the footnote 9 down here? 10 A. Yes. Yes. I think he reported the prostate 11 because the leukemia is missing. 12 Q. So he listed the prostate and not the leukemia? 13 A. Yes. Yes. And prostate, but not for a table. 14 Depends what we are trying to do now. 15 Q. If we are to 'assume that the leukemia is the one 16 that came out, then we are listing the ones that would come 17 out here, right, not the ones that stayed in? 18 A. Yes, right. 19 Q. So the prostate would not be listed here? 20 A. That1s 'right. 21 Q. Okay. Mow with respect to Mr. Edward Volz, sir, 22 said yes on the skin, no on the bladder? 23 A. Yes. 24 Q. Because the doctor said the bladder was benign? tn 1 A. That's right, 2 Q. So we would take one bladder out for Edward Volz, 3 correct? 4 A. That's right. 5 Q. With respect to Mr. Harry Reynolds, sir, you listed 6 him as not exposed? 7 A. Yes. 8 Q, Therefore, his bladder would be taken out? 9 A. Right. 10 Q. With respect to Mr. Edward McDade, sir, on the 11 skin, you said need more information? 12 A. Yes, sir. 13 Q. What would you do with that? 14 A. Question mark. 15 Q. Question mark on skin. With respect to Mr. John 16 Hein, sir, you said you needed more information there? 17 A, Yes. 18 Q. And what was that for? 19 A, Because he had a tumor of the colon without any 20 further definition and it could well be that he also is a no 21 cancer. 22 Q. All right. Well, should he be removed or should 23 there be a question mark? 24 A. I think he should be removed. nn 1 Q. You think this should be a no here? 2 A. Yes. I'd like to look at that and see if we 3 recorded it when we went through there correctly. 4 Q. Number 26f sir. 5 A. Yes. Hein. 26. The record here, as I looked at 6 it, it has malignant cancer removed, and so I'd call him a 7 cancer. 8 Q. I'm sorry, sir, what is it you are referring to? 9 A. I had listed him in my list as yes rather than no 10 when I had reviewed them before, and so my question is how I 11 recorded this up here. 12 Q. All right. 13 A. I put down that -- 14 Q. Let's make sure we are looking at the right 15 record. 16 MR. CARR: Doctor, did you say you had a list that 17 you prepared? 18 A. Huh? 19 MR. CARR: Did you say you had a list that you 20 prepared? 21 A. I went through those, went through them and 22 recorded what I thought when I went through them. 23 MR. CARR: Where is that list? May I see it? 24 A. Yes, sir. 01 1 MR, CARR: Would you have it marked, please? 2 A. And here's the other one on skin, 3 MR, CARR: Oh, you have two. 4 A. I can't see the -- 5 MR. CARR: I can't hear you. 6 A. I'm trying -- 7 MR. CARR: I'm not asking you for an explanation, 8 I'm asking you to speak loud enough so it can be on the 9 record that I can hear you. 10 A. Yes, sir. 11 Q. Maybe that's not the right record, that's part of 12 that Plaintiff's Exhibit or maybe I've got the wrong one. 13 Hein's number 26. Okay, there we are. 14 A. Yes. 15 Q. All right. 16 A. The record shows he had a cecum tumor and I'm still 17 saying I need more information. 18 Q. So you were looking at the Hein record when you 19 recorded this? 20 A. Right. 21 Q. Okay. So need more information, is that correct? 22 A. Yes, sir , 23 Q. All right, so you would put a question mark for 24 Hein under bowel, is that right? nn 1 A Yes 2 Q. And the other Edward Miller and Willard Crites you 3 said you would include? 4 A. Yes. 5 Q. All right. Sir, if we take Plaintiff*s Exhibit 6 1474, with respect to the bladder cancers, this exhibit, does 7 this exhibit reflect that there were two reported and three 3 omitted? 9 A. Yes. 10 Q. And you would also omit three? 11 A. Yes. 12 Q* With respect to the colon cancers reported, sir, 13 how many are reported, according to this exhibit? 14 A. Three. 15 Q. And -16 A. Plus one. 17 Q. One omitted. And with respect to colon, you would 18 take one off? 19 A. Yes. 20 Q. And maybe question another? 21 A - Yes. 22 Q. Now, with respect to Mr. Hein, does it appear that 23 Dr. Suskind included him? 24 A. Yes. 1 Q. Reported on him? 2 A. Yes. 3 Q. Now, with respect to skin cancer, sir, there are 4 how many reported, according to this exhibit? 5 A, Eight. 6 Q. How many are omitted, according to this exhibit? 7 A. Seven. 8 Q. And on your list of skin cancers you would remove 9 how many for sure? 10 A. Four. 11 Q. With respect to those three, what would you need? 12 A. More information. 13 Q. So you would for sure take four off? 14 A. Yes. 15 Q. And perhaps all seven? 16 A. It could well be. 17 Q. But you need more information based upon the 18 information that you have in the records .before you? 19 A. All we have is this very limited record, and they 20 had more information. 21 MR. CARR: No, Dr. Roush, they did not. If they 22 did, then Monsanto is in contempt, because we asked for all 23 of the data that Suskind had, and the record is clear on 24 that. I've asked the jury to be instructed to disregard the OA 1 last statement of the doctor. 2 MR. HEINEMAN: Your Honor, may I respond to that? 3 THE COURT: Sure. 4 MR. HEINEMAN: I believe there has been a great 5 deal of evidence here that Dr. Suskind had available to him, 6 the work records in Nitro, and to my information that 7 information was made available to Mr. Carr, Nitro work 8 records. 9 THE COURT: Well, assuming that that is so, I don't 10 think that addresses the point Mr. Carr made. The objection 11 is sustained. The jury is ordered to disregard that remark. 12 I'm talking about things that have not been made available. 13 So the objection is sustained. 14 Q. (by Mr. Heineman) Dr. Roush, did Dr. Suskind have 15 access to the Nitro work records? 16 A. Yes, sir. 17 Q. All right. Did he have access to Max Galloway? 18 A. . Yes, sir. 19 Q. Who is, I think you described him before as what, 20 sir? 21 A. He's environmental man at this time, but he had 22 been personnel before. 23 Q. He was in the Personnel Department at the plant? 24 A. Yes oe 1 Q. And, whatever conclusions Suskind made, were they 2 made based upon the information that he had? 3 A. Yes. 4 Q. All right. Now, with respect to the -- 5 A. The other thing is he had access to the physician 6 who did the examinations. 7 Q. All right. Through -- would that be through oral 8 communication? 9 A. Yes. Yes. 10 Q. Now, Doctor, with respect to the prostate cancer 11 that's reported here, that is reported, and none omitted 12i according to this Plaintiff's Exhibit 1474? 13 A. Yes, sir. 14 Q. With respect to the leukemia, it's listed as 15 omitted in Plaintiff's 1474? 16 A. Yes, sir. 17 Q. And you would omit that as well? 18 A, For only one purpose, we have got one person with 19 two diseases. The reason that was left off -- 20 Q. So which -- you would do either one or the other? 21 A, That's right, and record it someplace else. 22 Q. And so, as Plaintiff's Exhibit 1474 demonstrates, 23 Dr. Suskind reported the prostate and omitted the leukemia, 24 correct? 1 A. Yes, sir. 2 Q. And it could have been done the other way around? 3 A. That's right. 4 Q. Now, with respect to lung cancer, sir, there is one 5 omitted, is that right, according to Plaintiff's Exhibit 6 1474? 7 A. Yes, sir. 8 Q. And would you also omit that lung cancer? 9 A. Yes, sir. 10 Q. So, with respect to a final tally here, sir, on the 11 number of cancers which Mr. Carr listed on Plaintiff's 12 Exhibit 1474 A as omitted, how many of those would you omit? 13 A. I'd have to look at that. Nine. 14 Q. What about the other four? 15 A. I would take off the skin as well, those four, 16 that's all I would do at this time. 17 Q- Because of -- 18 A. The question -- 19 Q. Question marks? 20 A. Yes. 21 Q. As you sit here right now, you would need more 22 information before you would take those off? 23 A. Yes, sir. 24 Q. Is that right? 0-7 1 A. Yes, sir 2 Q. Dr. Roush, there is, I think, at least one of those 3 people would was included twice for both a skin and a bowel, 4 correct? 5 A. I don't recall which ones they were. 6 Q. Mr. James Lewis? i 7 A. Yes. 3 Q. All right. Sir, now why would you include both two 9 cancers in the case of a skin and the bowel, and only one in 10 the case of -- 11 A, On Honaker. 12 Q. One in the case of leukemia and prostate? 13 A. It's the way the chart was made up, the table was 14 made up. Because they list skin cancer separately from other 15 cancers. 16 Q. So that one person could be in there twice if he 17 had a skin cancer and something else? 18 A. Yes, sir. 19 Q. Now, that's because why? 20 A. The way the table was prepared. If they would have 21 put the skin cancers with the other cancers, then you 22 wouldn't have done that, you'd only list him once. 23 Q. But in this case skin cancer was listed separately 24 from other cancers? OQ 1 A Yes, sir 2 Q. And why was that done? 3 A, Because of our ability to tell in any single person 4 whether -- what is reported skin cancers is truly a skin 5 cancer, and the other is that many people have operations for 6 or have skin cancers taken off that are not recorded 7 anyplace, so the prevalence of how many skin cancers there 8 are happening in the general public is not well defined. 9 Q. So they -- do they need to be analyzed separately? 10 A. Yes, sir. 11 Q. , Prom other cancers? 12 A. Yes, sir. 13 Q. Now, sir, with respect to those persons who are 14 reported in skin cancer, but who were reported in the records 15 to have multiple skin cancers, should they be listed more 16 than once in the skin cancer category? 17 A. No, sir, they only can be listed once on that 18 table. 19 Q. Because of what reason, sir? 20 A. One man got multiple skin cancer is the same as the 21 man having one cancer, as far as that table is concerned. 22 Q. One which kind of cancer? 23 A. Skin cancer. 24 Q. All right. So whether it's one or more skin ft 1 cancers, there will be a listing in skin cancer? 2 A. That's right. 3 Q. And whether there is one or more other types of 4 cancers, it will be listed once in other cancers? 5 A. Yes, sir. 6 Q, And the only time they will appear twice is if they 7 have a skin and another? 8 A, That's right. 9 Q. Okay. Now, sir, with respect to the Marion Moses 10 study of the Nitro population, you were talking about people 11 that may be minimally exposed, I think, in the case of one of 12 those people. How did Dr. Moses handle that in the Moses 13 study? 14 A. In order to do an epidemiologic study, in a good 15 fashion, we really should be able to identify those who are 16 clearly exposed and those who are clearly not exposed. In 17 the study of dioxin, because of our inability to measure it, 18 we usually go to some kind of a qualitative evaluation, means 19 he had some and he had a lot. And that's exactly what Marion 20 Moses did. She said there were some who clearly had no 21 exposure? there were some who had minimal exposure; some who 22 had moderate, and those who worked in the plant were heavily 23 exposed. The plant where they made trichlorophenol and where 24 they had the 2,4,5-T they had heavy exposure. So it was ___________________________________________________________________________________ -> n 1 clearly a difference of degree of exposure. 2 Q. And, so how does she correlate the data, by what 3 marker? 4 A. She didn't feel comfortable doing that, so she 5 ended up by just comparing those with and without Chloracne. 6 Q. All right, sir. So she did not or did she throw in 7 marginally exposed people with heavily exposed people to 8 arrive at the population? 9 A. She probably mixed them up and just took them, you 10 no, with and without Chloracne. 11 Q. All right. So the marker was Chloracne and not the 12 level of exposure? 13 A. Chloracne means heavily exposed whenever they got 14 it. Know Chloracne means some exposure but considerably less 15 than those who had Chloracne. And the purpose of that is 16 those who have just a little bit, if they are going to have a 17 response, are going to be a little response, and those who 18 have got Chloracne are going to have a significant response. 19 Q. All right. So to that degree can the data in the 20 Moses study be correlated to some sort of level of exposure? 21 A. Yes, sir. 22 Q. Insofar as it is manifested in a Chloracne 23 reaction? 24 A. That's right. O1 1 MR. HEINEMAN: May I have a moment, Your Honor? 2 THE COURT: Sure. Would this be a good point for a 3 short break? 4 MR. HEINEMAN: That would be fin, Judge. 5 THE COURT: Gentlemen, could I see you at the bench 6 for a minute, please? 7 (Following a Side Bar conversation which was had outside the 8 hearing of the Court Reporter and the jury, the following 9 proceedings were had in open court.) 10 THE COURT: Okay, ladies and gentlemen, we will 11 take a short recess at this time. I would remind you, and 12 this would go for any other breaks that we take, that you are 13 not to discuss this matter among yourself, with anyone 14 outside the jury panel, or as of yet form any opinions or 15 conclusions about the matters on trial. Court will be in a 16 short recess. 17 (Following a recess, these proceedings were had in open 18 court.) 19 Q. (by Mr. Heineman) Dr. Roush, let me hand you what 20 I've had marked as Defendant's Exhibits 922 and 923, they are 21 also marked as Plaintiff's Exhibits 1513 and 1514, you see 22 that, sir? . 23 A. Yes, sir. 24 Q. Can you tell us what those are, please? / 1 A, Those are -- those two sheets are my work sheets 2 that resulted from my going through those twenty-some records 3 and looking at the complete records for the first time and 4 trying to decide what conclusions I would come to by looking 5 at the records regarding whether they had cancer or no. 6 Q. Now, sir, in court you were shown Plaintiff's 7 Exhibit 1468 for the first time, correct? 8 A. Yes, sir. 9 Q. And at that time did Mr. Carr provide us with a 10 copy, with a set of a copy of the same records? 11 A, Yes, sir, 12 Q. All right. Now, when you prepared Defendant's 13 Exhibits 922 and 923 -- 14 MR. CARR: Counsel, let's get the record straight, 15 1468 was supplied to us by you, if that's the group exhibit. 16 Is it not the group exhibit. 17 MR. HEINEMAN: 1468 was among a whole lot of 18 records supplied to you, is it not? 19 MR. CARR: But the point is, you said I supplied it 20 to you. The point is -- 21 MR. HEINEMAN: You supplied it to the witness is 22 what I said. 23 MR. CARR: No, you said I supplied it to you for 24 the first time. nn 1 MR. HElNEMAN: No, sir 2 MR. CARR: The point -- those are your records you 3 supplied to me by order of Court. 4 MR. HEINEMAN: Those are among many records we 5 supplied to you. 6 MR. CARR: That's correct. 7 MR. HEINEMAN: And you selected this group as 8 Plaintiff's Exhibit 1468. 9 MR. CARR: No doubt about that. 10 MR. HEINEMAN: You gave them to this witness and 11 gave us a copy of that Plaintiff's Exhibit 1468, correct? 12 MR. CARR: No doubt about that either. 13 MR. HEINEMAN: All right. There we are. 14 Q. (by Mr. Heineman) Now, Dr. Roush, in the process 15 of preparing 922 and 923, which set of documents of 1468 did 16 you look at? 17 A. What do you mean which set? 18 Q. Well, this set was here in the courthouse, wasn't 19 it? 20 A. Yes, sir. 21 Q. Did you look at our set? 22 A. Yes, sir; 23 Q. Our set. Okay. Now, I want to get back to the 24 John Hein situation. -) A 1 A. Yes, sir. 2 Q. All right. Now, first of all, let me hand you 3 what's been marked 923 again, Defendants 923 there, how do 4 you have Mr. Hein listed? 5 A. As having a bowel cancer. 6 Q. All right. And it's not -- you list him as having 7 a cancer? 8 A, Yes, sir. 9 Q. Okay. Now, what is the basis upon which you made 10 that determination when you reviewed the records that we made 11 available to you? 12 A. It was on sheets that were attached to the Hein 13 record rather than just the record here that we are reviewing 14 here. 15 Q. Well, wait a minute, let me go through this pile 16 with you here, sir. Here -- what's that? 17 A. That's Mr. Hein's record as given to us by Suskind. 18 Q. All right. But, also in this pile, sir -- 19 A. Yes, sir. 20 Q. -- are those two sheets, are they not? 21 A. Yes, sir. 22 Q. Now, were they attached when you looked at the 23 record, and we were going through this yesterday? 24 A. No OE 1 MR. CARR: They were attached. They have always 2 been attached. They were given to you that wayf they were 3 put into evidence that way. 4 MR. HEINEMAN: They are not attached right here. 5 MR. CARR: If they are not attached it's because 6 the witness has detached them. They were attached when they 7 were offered and admitted into evidence. They were 8 attached* You have a copy on your desk where they were 9 attached. There were no loose sheets when that exhibit was 10 put into evidence and when the witness had it. 11 MR. HEINEMAN: Mr. Carr, they are loose right now. 12 MR. CARR: Yesr they are loose right now but the 13 witness has had itf and you have had it. And you had the 14 exhibit and it's attached to your sheet. Attached to that 15 sheet. Been attached to the beginning. 16 MR. HEINEMAN: Certainly attached here. 17 MR. CARR: Yes, certainly was attached there. 18 THE COURT: Gentlemen, could I see you at the bench 19 for a minute? 20 (The following Side Bar conversation was had outside the 21 hearing of the jury.) 22 THE COURT: What is the point of all this? 23 MR. HEINEMAN: I want to clear up, Judge, is the 24 fact that the document that demonstrates that Mr. Hein has a otz 1 malignancy are those two sheets. All right. 2 THE COURT: Okay. 3 MR. HEINEMAN: When he went through this with me 4 yesterday, all he picked up was this. This document doesn't 5 say anything about a malignancy. This does. This was 6 attached to that here. I'm not implying any impropriety on 7 anyone's part. I'm just explaining why he said there was a 8 malignancy when he looked at this sheet with this, and not 9 malignancy when he looked at this alone. That's the point. 10 THE COURT: Maybe I'm missing something, but since 11 they were all supplied, since they were all attached, I mean, 12 why don't you just ask him that. What difference does it 13 make what was attached, what wasn't? It was all given to 14 you. 15 , MR. HEINEMAN: All right. Okay,' I'm going to get 16 on with that. 17 THE COURT: Okay. 18 (The following proceedings were had in open court.) 19 Q. (by Mr. Heineraan) Now, Doctor, let me refer you to 20 this record. 21 A. Yes, sir. 'i 22 Q. Right here. Separately from this, okay? 23 A, Yes, sir. 24 Q. Now, with respect to this portion of the Hein n 1 record, tell us what that indicates with respect to his 2 colon? Well, first of all, what is in there in that portion 3 that addresses Mr. Hein's condition with respect to his 4 colon? 5 A. The record says he had a colon tumor removed, and 6 the history as recorded by the physician said he had a colon 7 tumor removed in 1974, and the abnormal findings as listed by 8 the physician was a cecum tumor, and so he had a tumor of the 9 colon. 10 Q. All right, sir. Now, what is listed in here in 11 that portion of- the Hein record? 12 A. It lists that he had a carcinoma of the colon with 13 colectomy, and this is the basis why I said that he had a 14 bowel cancer in my notation. 15 Q. All right. Now, what -- in what posture should 16 John Hein be placed as a result of the consideration of both 17 of those records. 18 A. He had a colon cancer, and the interviewer -- and 19 he was exposed. 20 Q. All right. John Hein told the interviewer that he 21 had a bowel cancer? 22 A. Yes. 23 Q. The doctor said there was a, colon tumor? 24 A. Yes, sir. 1 Q. This other medical records say it's a malignant 2 tumor? ' 3 A. Yes, sir. 4 Q- Correct? 5 A.' Yes, sir. 6 Q- Now, that being the case, what would be the status 7 John Hein? - 8 A. Colon cancer exposed. 9 Q. So he should be a yes? 10 A. Yes. 11 Q. That being the case, sir, the Hein entry on this 12 page should bef what,should be done with it? 13 A. It should be on -- shouldn't be on that list. 14 Q. Should not be on this list? 15 A. That's right. 16 Q. All right. And should Mr. Hein be included as an 17 exposed person with a tumor, with a cancer in Table 1? 18 A. He should be on that exposed list and listed under 19 the cancer of all sites. 20 Q. Cancer of all sites? 21 A. Yes. 22 Q. All right. Now, would you describe for me those 23 two portions of the Hein exhibit. s 24 A. This one said that he had a tumor, and that we an 1 needed more information, and this extra sheet of paper 2 supplies more information than is available here that said he 3 had a colon cancer, 4 Q. All right. 5 A. You need both. 6 Q. What is this portion here that you have in your 7 right hand? 8 A. This is the summary of all the data that was 9 gathered on Mr. Hein by the Suskind study when they were down 10 in Charleston. That's all the information available. 11 Q. And what does this record -- what is this record 12 regarding Mr. Hein? 13 A. This is several sheets out of apparently all the 14 sheets out of Mr. Hein's medical record at the Nitro plant. 15 It doesn't have a name on top, so I'll have to presume it, 16 but it does describe, it's got his name on it, got a number 17 187, but it talks about he had a burn in the area of his 18 right foot, and the kind of thing you would have in a plant, 19 but then it does say, I don't know the date, but it says 1976 20 that he had an -- in January of '76, he had a carcinoma of 21 the colon with partial resection of his colon. Then the 22 second page is a further, a notation on a pre-employment 23 examination. I don't understand why it's pre-employment 24 examination, but it talks about a malignant resection of -- a An 1 malignant -- I can't read the next word, but resection of the 2 colon, and then the next sheet is just a recording of the '3 physical examination forms. But, those -- obviously all 4 three of them were from the medical records at the plant. 5 Q. All right. Now, the medical records at the plant 6 are separate records from the record prepared in the course 7 of the Suskind Nitro morbidity study, is that right? 8 A. Yes, sir. 9 Q. But were they available to Dr. Suskind, the medical 10 records at the plant, when he was making his conclusions? 11 A, Yes, sir. 12 Q. Now, with respect to Defendant's Exhibit 922, which 13 is also Plaintiff's Exhibit 1513, would you tell me what 14 those notations mean at the bottom? 15 A, All right. I took the -- ; I don't know which one of 16 the charts, no, the other one, just a listing of -- and I 17 went through that list. 18 Q. By that list you are referring to 1473 C? 19 A. Yes. And I divided those up into those with skin 20 cancer and those with cancer of all sites except skin. 21 Q. All right. Now, each of your lists has a title to 22 it, does it not? 23 A. Yes. 24 Q. And what does that title say? A1 1 A Suskind Health Effects, Suskind Human Health 2 Effects-2,4,5-T. 3 Q. And does it have any numbers in the upper 4 right-hand corner? 5 A. Yes, sir, it has 1473 and 1474 on both of them. 6 Q. All right. And the numbers of those exhibits here 7 are 1473 C and 1474 A, correct, sir? 8 A. I don't know. 9 Q. You want to look at them? 10 A. That's A, yes. 11 Q. C, this one? 12 A. Yes, sir. 13 Q. All right. Now, so, where did those numbers come 14 from? 15 A. Well, there are 28 there and I divided them up into 16 skin cancers to reflect the Suskind chart separating the skin 17 cancers from the other sites, and so I have one list titled 18 skin cancers, one titled skin cancers, and then I listed all 19 from that list on my work list, so I have all the skin 20 cancers listed according to that file. 21 Q. And how about the other sheet which is exhibit, 22 Defendant's Exhibit 923 and Plaintiff's Exhibit 1514? 23 1k A. Then after I had taken those skin cancers off, X 24 went down then and picked up all those that were not on the Aa 1 skin cancer list to make a list of twelve. So I have sixteen 2 skin cancers on that list, so the 28, 16 skin cancers and 3 there are 12 other cancer sites. 4 Q. All right. Both of those were taken from this 1473 5 C list? 6 A. Yes, sir. 7 Q. And, the other exhibit also has the same title at 8 the top of it, does it not? 9 A. It has listed Suskind human health effects 2,4,5-T, 10 and then it lists cancer of all sites except skin, that 11 reflects the title that's on the Suskind chart. 12 Q. And in the upper right-hand corner do some numbers 13 appear on that exhibit as well? 14 A. Yes, sir. 15 Q. 1473 and 1474? 16 A. Yes, sir. 17 Q. Are the numbers that appear -- All right. Nov?, 18 what did you do in preparing each of those exhibits, sir? 19 A. I just went through those records and tried to 20 decide if I were given this responsibility to decide whether 21 they had a cancer or not. I went through them like I had any 22 medical records and drew my conclusion whether they had a 23 skin cancer, cancer of another site, and then I also looked 24 at them to decide whether I thought their exposure was real An / 1 or not, whether there was exposure or whether there was not 2 exposure. 3 Q. ' All right. And in `doing that, did you also 4 consider Plaintiff's Exhibit 1474? 5 A. Yes, sir. 6 Q. Okay. And how did you consider that? 7 A. X didn't repeat that table or summary of it, what I 3 did was I took that and just tried to decide whether I could 9 identify the bladder cancers there, and primarily I was 10 looking at the ones that were omitted to see whether they 11 were -- whether I would come to the same conclusion. 12 Q. All right. And that would be omitted as reported 13 on Plaintiff's Exhibit 1474 A? 14 A. Yes, sir. 15 Q. And then did you report conclusions on those two 16 documents, those exhibits? 17 A, Yes, sir. Yes, sir. 18 Q. All right. Nov/, what does this mean here, this 19 thing at the bottom of Exhibit 922? 20 A. I recorded that. I said that there were 16 skin 21 cancers on that list, and I went through it and I said that 22 there were five that would not have been included on that 23 list, that I v/ould take five off. 24 Q. Now, sir, here is your description of the skin AA 1 cancers? 2 A. Yes, sir. 3 Q. And you!ve listed four here? 4 A. Yes, sir. 5 Q. Which is the fifth, do you know? 6 A. It has to be either Waldorf -- I have listed 7 Waldorf as no confirmation. 3 Q. So, on your list you would take -- that you 9 prepared originally, you would take Waldorf off? 10 A. The reason when I went back over this is that -- 11 when rereading this is I really can't be sure what the 12 physician really recorded. That's the basic difference. A 13 medical record of the physician isn't clearly enough stated 14 so I can really draw conclusions. 15 Q. Is this the one where the copy is bad? 16 A. Yes. 17 Q. And you can't read a portion of it? 18 A. . Yes, sir. 19 Q. All right. So that is the -r if you put Waldorf 20 in, that would be the five that you have listed there? 21 A. Yes, sir. 22 Q. All right. With respect to the bladder, are those 23 the three that you have listed there? 24 A. Yes, sir. A 1 Q. And how about the bowel, Scarberry listed as one 2 you would take off? 3 A. Yes, sir. 4 Q. How about the lung, Scarberry? 5 A. Yes. 6 Q. And leukemia? 7 A. I -- ; on my list I said leukemia not recorded by the 8 M.D. 9 ^ Q. Okay. This is the one where there was the prostate 10 and the leukemia? 11 A. Right. 12 Q. And you could not report either one? 13 A. Right. 14 MR. HEINEMAN: I have no further question of the 15 witness at this time, Your Honor. 16 THE COURT: Mr. Carr? 17 18 RECROSS EXAMINATION 19 BY MR. REX CARR 20 Q. Doctor, ordinarily I would start right out with the 21 subject we just left, that's freshest in your mind and the 22 jury's mind, but there is an exhibit I'm missing I need. I 23 will have it at one. So I'd like to start with you-back at 24 the beginning of your Clarification Examination by Mr. MV 1 Heineman. And to refresh your memory in that respect, you 2 started out discussing your visit with Dr. Suskind that you 3 had during our recess? 4 A. Yes, sir. 5 Q, And, as Mr. Heineman has now brought out that's 6 even occurred more recently, you have bills that indicate 7 that you have just paid the Suskind bill for your Krummrich 8 study, is that correct, Dr. Roush? 9 A. Yes, sir. 10 Q. Dr. Roush, when you testified here before the break 11 and before your visit with Suskind, you called this Krummrich 12 study the final report, did you not, sir? 13 A. I called it a final report after Dr. Suskind said 14 to call it the final report. 15 Q. Doctor, you called it the final report before you 16 had the visit with Suskind, did you not, sir? 17 A. I had -- I can't give you the date but I would 18 think that's right. 19 Q. And as a matter of fact you testified in this court 20 on May 31st before your visit with Suskind that this 21 Krummrich study, this exhibit that you got on September 29th, 22 1980, was the final report, didn't you, sir? 23 A. I assumed -- the only problem I've got-- 24 Q. Excuse me, my question is simply did you not so an 1 testify under oath in .this court before you went back and 2 discovered those documents and had your visit with Dr. 3 Suskind? 4 A. Yes, sir* 5 Q. Yes. And, at that time, before you had those other 6 things take place, you considered it the final report, did 1 you not, sir? 8 A. I called it the final report. 9 Q. Well, you called it what you considered it to be, 10 did you not, sir? 11 A. At Dr. Suskind1s request. 12 Q. Nov/, Doctor, again, your testimony under oath 13 before you visited Dr. Suskind, did you recall this 14 testimony, sir -- 15 A. I remember discussing it but I -- 16 Q. Did you recall that I asked you specifically and 17 your answer was. You did get that final report. 18 MR. HEINEMAN: You have the citation? 19 MR. CARR: 66 and 67 of his testimony of May 31st, 20 this year. 21 Q. (by Mr. Carr) And starting at Page 66, I asked you 22 the questions, the Krummrich study was done, your ansv/er to 23 -- I started to ask you a question you said. "The Kruinmrich 24 study was done by Suskind and we were not given copies of mn 1 that report." And then I said, "Well, Doctor, we will get to 2 that shortly, Doctor." You said, "All right." Question: 3 "In any event you haven't read it, is that right?" Your 4 answer was, "I haven't looked at it. I read the final report 5 but not the individual histories." Then-my question: "That's 6 what I'm talking about, the final report, you have got that?" 7 Answer: "The final report. You have got that and you have 8 read that? Yes, sir." Do you recall those being your answers 9 under oath at that time, Dr. Roush? 10 A. Yes, sir. 11 Q. You were telling the truth then, weren't you, Dr. 12 Roush? 13 A. I don't know. 14 Q. Dr. Roush, you were aware that this Krummrich study 15 had been analyzed by us, your counsel knew that we had the 16 records, you were coming here to testify as to the head of 17 the department? 18 A. Yes, sir. 19 Q. Those people -- and, you do know the difference 20 between something that is the truth and is not the truth, 21 don't you, sir? 22 A. Yes, sir. 23 Q. And, when you testified that you read the final 24 report, you were testifying to that, to the truth, weren't / Aft 1 you, Dr. Roush? 2 A. I was testifying that I had read the report, not 3 the final report. 4 Q. Doctor, this is your language, not mine, see that 5 sir, where it says your words, sir, the final report, I read 6 the final report, you didn't say I read the report, you said 7 I read the final report, didn't you, Dr. Roush? 8 A. Yes, sir. 9 Q. Doctor, all this business about getting this 10 correspondence and those other things that you all delivered 11 to me last week, last Friday, for the first time -- 12 A, Yes, sir. 13 Q. This all came about because you were concerned that 14 you had testified that you had the final report and that you 15 had not given it to the workers, and you knew that during our 16 break that I gave it to the workers, you knew all that, 17 didn't you, sir? 18 A. No, sir. 19 MR. HEINEMAN: Object, Your Honor, are you 20 suggesting those documents were created, Mr. Carr, at that 21 time? 22 MR. CARR: Counsel, I have no knowledge of where 23 those documents were or how they came to be, how long 24 Monsanto knew this was a final report. I do know this, that r rt 1 among the documents you gave me was a voucher dated May 30th, 2 1985, in which Dr. Sprall had written on it Final Report 3 Payment, I know that. That took place before the break, as 4 well. .5 MR. HEINEMAN: This testimony is on the 31st, 6 correct, sir? 7 MR. CARR: That's correct. Well you couldn't 8 hardly get the bill dated May 30th, counsel, it was dated in 9 Cincinnati May 30, couldn't very well have gotten it and 10 marked it Final Payment, final bill in time for Dr. Roush to 11 know about it and testify here the very next day. The bill 12 counsel, if you recall is dated May 30th, dated at 13 Cincinnati. 14 MR. HEINEMAN: Didn't he tell you about a prior 15 phone call before the visit, Mr. Carr? 16 MR. CARR: Counsel, he told me so many things about 17 those calls and about those conversations with Dr. Susk'ind, 18 it's difficult for me to keep it straight. 19 THE COURT: Objection is overruled. You may 20 proceed, Mr Carr. 21 Q. (by Mr. Carr) Doctor, in any event, you now are 22 aware of the fact that you had information in your hands and 23 Monsanto's hands since September 29th, 1980 and you had not 24 given it to your workers, isn't that right? 1 A. Yes, sir. 2 Q. Yes. Doctor, you've also brought out here v/ith Mr. 3 Heineman that you have given information to the workers as to 4 the effects of dioxin and you told them about how dioxin is 5 harmful, you recall Mr. Heineman just going through that with 6 you, I' think it was yesterday or the day before yesterday? 7 A. Yes, sir. 8 Q. Nov/, you went through all your records, didn't you, 9 Dr. Roush, to try to find documents that would support the 10 thesis that Mr. Heineman v/as going to brink bring here that 11 you had informed your workers as to the health effects of 12 dioxin. You've made a study for that, didn't you, sir, find 13 out what documents you had? 14 A. I went back to clarify in my mind what had been 15 given. 16 Q. Yes, You went back as far as 1979, didn't you, 17 sir? 18 A. I didn't limit it on time. 19 Q. You went back then as far as you could to find out 20 what you told the workers about dioxin and the health 21 effects, didn't you, sir? 22 A. That's right. 23 Q- Sir? 24 A. Yes, sir. c;o 1 Q. And you brought in that information, didn't you, 2 the totality of the information that you and others, I take 3 it, discovered as to the health effect of dioxin, did you do 4 that? 5 A. Yes, sir. 6 Q. Sir? 7 A. Yes, sir. 8 Q. And that was Monsanto's Exhibit 920, wasn't it, 9 sir? 10 A. I don't know. 11 Q. I just had it here a second ago, Your Honor. Here, 12 I'have it now. You recall the testimony that Mr. Heineman 13 was bringing up for clarification, had to do with the fact 14 that we had pointed out, that you had pointed out to others, 15 people that you were going to contract with, people that had 16 the ability to sue you, that you had pointed out, and by you, 17 I mean Monsanto, you had pointed out the various problems 18 that scientists suspect of being caused by dioxin, including 19 cancer, liver, nerve changes, all this, that's shown on 20 Exhibit 1494 D, you recall that? 21 A. , I remember that exhibit. 22 Q. You recall that he asked you about Exhibit 920, you 23 have of Monsanto Exhibit 920, or did you take it, counsel? 24 MR. HEINEMAN: I think it's here. Cn i 1 HR. CARR: All right, fine. 2 Q. (by Mr. Carr) I hand you now Defendant's Exhibit 3 920, and ask you if -- could you mark this? Ask you to look 4 at Plaintiff's Exhibit 1515 and see if that isn't a page 5 taken from Monsanto Exhibit 920, that is Roman Numberal II-3? 6 A. Yes, sir. 7 MR. CARR: Offer 1515 into evidence, if it please 8 the Court? 9 MR. HEINEMAN: May I see it, please? 10 MR. CARR: Sure. 11 THE COURT: Any objections? 12 MR. HElNEMAN: Your Honor, I would -- one moment. 13 Your Honor, I would object only if he offers just this part 14 of it. Can't we have the entire exhibit in, and refer to' 15 this page? I think it would be helpful to the jury to have 16 the whole exhibit. 17 MR. CARR: I have no objection to the entire 18 exhibit, Your Honor. Fine with me. 19 THE COURT: Fine. It's all admitted into 20 evidence. 920 is admitted into evidence by agreement, Page 21 1515 being part of an admitted exhibit, is admitted into 22 evidence. 23 O. (by Mr. Carr) Doctor, what do -you really tell, the 24 workers that the health hazards are associated with dioxin in CA 1 this Exhibit 1515? 2 A. We tell them that there are chlorinated 3 dibenzo-dioxins found in chlorophenols and it states that 4 there is much concern about by environmentalists and 5 government officials over their potential health hazards, and 6 very little is known about the potential toxicity of dioxin, 7 what exposure to dioxins may result in skin a condition 8 called Chloracne, there may be reversible liver effects as 9 well 10 Q. So you actually tell them two things, that you can 11 get a skin condition called Chloracne, and that some 12 reversible liver effects have been reported, don't you, sir? 13 A. Yes, sir. 14 Q. Now, by reversible, you mean to tell them that 15 there are liver effects that will go away, will have no long 16 lasting consequences, don't you, sir? 17 A. Yes, sir. 18 Q. And, that is all you tell the workers, don't you, 19 sir? 20 A. Yes, sir. 21 Q. You don't tell them about what you told the workers 22 that were going to work for you, and that could sue you, that 23 they are suspected of causing certain types of cancers, you 24 don't tell them that, do you, sir? cc 1 A No, sir. 2 Q. And you, of course, knew that in 1979, didn't you, 3 sir? 4 A. Yes, sir. 5 Q. You don't tell your workers that it can cause liver 6 and nerve changes, do you, sir? 7 A. No, sir. 8 Q. You knew that in 1979, didn't you? 9 A. Yes, sir. 10 Q. Sir? 11 A. Yes, sir. 12 Q. You don't tell them that there can be other 13 possible injuries at certain concentrations, do you, sir? 14 A. No, sir. 15 Q. And you knew that as well, didn't you, sir? 16 A. Yes, sir. 17 Q. As a matter of fact, those things that are listed 18 in Plaintiff's Exhibit 1267 A, that are the toxic effects of 19 2,3,7,8-TCDD in man, all of those things have been known, 20 were all known in 1979, weren't they, sir? 21 A. No, sir. 22 Q- They weren't known? Which of those things were not 23 known in 1979? 24 A. There are a number of those things R 1 Q. Which things were not known in 1979? 2 MR. HEINEMAN: Objection. 3 A. Cardiovascular disorders. 4 MR. HEINEMAN: Doctor, please let me make my 5 objection. All right? 6 A. Yes, sir. 7 MR. HEINEMAN: He interrupted his answer. He 8 started to say a number of things, then Mr. Carr cut him off. 9 THE COURT: Objection- is overruled. 10 Q. Cardiovascular disorders were not known as a toxic 11 effect in 1979? 12 A. Questionable. 13 Q. Doctor, my question is it was known and reported in 14 1980, this is dated December *79, is it not, sir? 15 A. Yes, sir, 16 Q. It had been reported to be a toxic effect of 17 2,3,7,8-TCDD in man prior to December of *79, had it not, 18 sir? 19 A. No, sir, it was reported -- that list says it but 20 that isn't what is correct. 21 Q. Doctor, now we are back to quarreling about whether 22 or not you personally believe those to be toxic effects or 23 not. We don't need to go through all that. We have gone 24 through that once. The Northwestern people listed it as _______________________________________________________________ 1 toxic effects in- man in their protocol, did they not, that 2 you paid for, correct, sir? 3 A. Yes, sir. 4 Q. And, Doctor, some scientists had said prior to 5 December of *79, that all of those were possible toxic 6 effects of 2,3,7,8-TCDD exposure in man, did they not, sir? 7 A. No, sir. 8 Q. Sir? 9 A. No, sir. 10 Q. Which ones were not, cardiovascular disorders were 11 mentioned as possible disorders before December of '79, were 12 they not, sir? 13 A. Yes, sir, possible. 14 Q. And urinary tract disorders were also mentioned, 15 were they not, sir? Which one of those toxic effects was not 16 known prior to 1979, or was not known at 1979? 17 A. Cardiovascular should not be on there. 18 Q. Doctor, my question is has it not been reported and 19 has it not been reported by reputable scientists that 20 cardiovascular disorders may result from dioxin exposure? 21 A. No, sir. 22 Q.' That has not been reported? 23 A. No, sir. 24 Q. ^ And so whoever wrote that down is either not a 1 reputable scientist, or he is misquoting what somebody said, 2 one of the two? 3 A. No, sir. 4 Q. Well, it's on this list, is it not, sir? 5 A. Yes, sir. 6 Q. And the people at Northwestern are reputable 7 scientists, aren't they, sir? 8 A. Yes. 9 Q. And the people that wrote the Huff-Moore, those 10 studies, are reputable scientists? 11 A. Yes, sir. 12 Q. And included cardiovascular disorders, didn't they? 13 A. No, sir, they put there as a question rather than 14 real, none of -- there has never been anywhere -- 15 Q. Doctor, did Northwestern put this in as a question? 16 A. Yes, sir. 17 Q. Where does it say question, where in the protocol 18 that we went through ad nauseum for some length of time, 19 where did she say there was any question about it, they said 20 and we quoted the line from the text, and you read the line 21 of the text, those are the toxic effects in man, didn't they, 22 sir? 23 A.. No, sir. 24 Q. Doctor, do you recall reading that line from that RQ 1 text? 2 A, Yesf sir* 3 Q. Did I quote it to you directly? 4 A. You read the line correctly. 5 Q, They said that in that protocol, did they not, sir? 6 A. Yes, sir. 7 Q. Doctor, you did not, and this was known to man, to 8 scientists, to the world, before they put it in this Table 7, 9 wasn't it, sir? 1 A. Known what? 11 Q. The scientific studies that have been made that led 12 to the conclusion that cardiovascular disorders should be 13 included in the list, those studies were performed, the 14 reports were written before December of *79, weren't they, 15 sir? 16 A. No, sir. 17 Q. When were they written then? 18 , A. They'were written, but they didn't say what you 19 said. 20 Q. Doctor, the studies that Northwestern used in 21 making their statement, and that the people that wrote this 22 article that we went through, those were studies that were 23 performed before December of '79, weren't they, sir? 24 A. Yes, sir. CCi 1 Q. And, you at Monsanto were aware of those studies, 2 weren't you, sir? 3 A, Yes, sir. 4 Q. Now, are there, is there anything in here where 5 studies were not done relating to those disorders? 6 A. I don't understand your question. 7 Q. Is there anything listed here, sir, where the 8 worked not been done prior to December of '79? 9 A. There hadn't been any work done on cardiovascular, 10 urinary tract. 11 Q. Doctor, we just went through the cardiovascular. 12 There was scientific studies made, were there not, sir? 13 A. Yes, sir. 14 Q. Those were made before December of *79, were they 15 not, sir? 16 A. Yes, sir. 17 Q. Is the same thing also true for the urinary and the 18 respiratory and all nose other things listed here, sir, the 19 work in that was done before December of '79, wasn't it, sir? 20 A. Yes, sir. 21 Q. Doctor, the only thing that you mentioned here is 22 reversible liver and Chloracne, isn't that correct, sir? 23 A. Yes, sir. 24 Q. ,Doctor, what is potential toxicity? What do you C. T 1 mean when you say potential toxicity? 2 A. It's a misuse of the word potential toxicity in 3 this sentence. 4 Q. Doctor, you brought in the exhibit, it is your 5 exhibit. I'm now asking you what is meant by saying 6 potential toxicity. 7 MR, HEINEMAN: Object, Your Honor. He hasn't 8 established that this man was the author of it. He just 9 brought a document in to court. Now, if he wants his opinion 10 on what potential toxicity means, that's one thing, but I 11 think he's asking him to speculate about what the author here 12 meant. 13 THE COURT: Objection is overruled. I don't think 14 that's what the question calls for. 15 A. Would you read back the question? 16 COURT REPORTER: "Doctor, you brought in the 17 exhibit, it is your exhibit. I'm now asking you what is 18 meant by saying potential toxicity?" 19 A. Potential refers to the likely hazard of exposure 20 to dioxin. 21 Q. Doctor, how do you determine potential toxicity? 22 A. Potential toxicity comes from both animal studies 23 as well as human experience. 24 Q. Now, Doctor, there had been done prior to December /T n 1 of 1979 a great deal of animal study work relating to the2 toxicity of 2f3 f7,8-TCDD, had there not, sir? 3 A. Yesf sir. '4 Q. And a lot was known about the potential toxicity of 5 2,3,7,8-TCDD? 6 A. Yes. 7 Q. Barrels and barrels was known, wasn!t it, sir? 8 A. Not barrels -- there were a lot of studies. 9 Q. Doctor, it states in here, you say very little is 10 known concerning the potential toxicity of dioxin, is just 11 one hundred percent false, isn't it, sir? 12 A. No, sir. 13 Q. Doctor, a lot was known, you had scientific work 14 had been done with all kinds of animals, you created cancers, 15 you created deaths, you created liver, you created all kinds, 16 ever possible thing that could happen to an animal through a 17 toxic substance had already been done by December of 1979, 18 had it not, sir? 19 A. Yes, sir. 20 Q. And, all that was a large scientific body of 21 information dealing with potential toxicity of dioxin, wasn't 22 it, sir? 23 A. Yes, sir, in the animal. 24 Q. And, Doctor, that is the reason you do the work (TO 1 with the animal, so you'll know the possible, the potential 2 toxicity of when man is exposed to that substance, isn't that 3 correct, sir? 4 A. No, sir. 5 Q, That isn't the reason you do it? 6 A. That's part of it. 7 Q. That is one of the reasons that it's done, isn't 8 it, sir? 9 A. Yes, sir. 10 Q. So as to demonstrate the potential toxicity of the 11 substance? 12 A. No, sir. 13 Q. Sir? 14 A. No, sir. 15 Q. Isn't that the reason the FDA requires that you do 16 animal studies with every drug before you can even use it in 17 the clinic on an experimental basis with humans, it has to go 18 through the animals first, doesn't it, sir? 19 A. Yes, sir. 20 Q. In order to discover the potential toxicity of that 21 drug? 22 A. No, sir. 23 Q. Doctor, why do they put it with the animals,1why . 24 did the FDA require that every drug that is put on the market rz a 1 in the United States, first, before they can even go and work 2 with humans with it, that it goes through the animal test? 3 A, To determine the possible health effect. 4 Q. And the possible health effect is potential 5 toxicity, isn't it, sir? 6 A. No, sir. 7 Q. When you are talking about toxic effects, aren't 8 you talking about health effects? 9 A. Yes, sir. 10 Q. And, Doctor, then when they do it for those 11 possible health effects, they are dealing with toxicity, 12 aren't they, sir? 13 A. Yes, sir, in the animal. 14 Q. That's exactly what I said, they are doing that 15 before they allow it to go to humans, aren't they? 16 A. Yes, sir. 17 Q. They want to determine the potential toxicity of 18 that substance, don't they, sir? 19 A. No, sir? 20 Q. Sir? 21 A. No, sir. 22 Q. Doctor, is toxicity equavalent to health effects? 23 A. No, sir. 24 Q. When you talk about toxic effects aren't you cc 1 talking about health effects? 2 A. You may, 3 Q. When you are talking about toxicity here, you are 4 not talking about something in the abstract, you are talking 5 about possible health effects, both in Exhibit 1267 A, and in 6 Exhibit 1515, aren't you, sir, Monsanto Exhibit 920? 7 A, Yes, sir. 3 Q. So they are both talking about the same thing, 9 aren't they, sir? 10 A. No, sir. 11 Q. Doctor, do you understand what'you are saying here? 12 A. Yes, sir. 13 Q. This is talking about -- the Exhibit 1267 is 14 talking about health effect in man, is it not, sir? 15 A. Possible health effect. 16 Q. And this is talking about possible health effect, 17 isn't it, sir? 18 A. Yes, sir. 19 Q. All right. So, the possible health effect in man 20 is demonstrated by what happens to animals, isn't it, sir? 21 A. No, sir -- possible, yes, sir. 22 Q. That's what I said, Doctor. 23 A. I'm sorry, yes, sir. 24 Q, Now, a lot is known about the.possible health 1 effects in manf isn't it, sir, by virtue of animal studies? 2 A. Yes, sir. 3 Q. Yes. So this statement here where you say that 4 very little is known about concerning the potential toxicity 5 of dioxins is false, isn't it, sir? 6 A. No, sir. 7 Q. Well, Doctor, let's go through it one more time. 8 A. Yes, sir. 9 Q. A lot is known about the potential toxicity of 10 dioxins by virtue of animal studies, isn't it, sir? 11 A. No, sir. 12 Q. ` Oh, no? Have the animals been studied to determine 13 what the toxic effects upon them are going to be? 14 A. On who? 15 Q. On the animals, sir? 16 A. Yes, sir. 17 Q. So a lot is known about the toxic effects of dioxin 18 on animals, isn't it, sir? 19 A. Yes, sir. 20 Q. That work is done in order to determine what might 21 possibly be the effects upon man, isn't that right, sir? 22 A. Yes, sir. 23 Q. So that information leads to and assists you in 24 determining the potential toxicity of dioxin and other drugs an 1 or other substances in man, isn't that correct, sir? 2 A. Yes, sir. 3 Q. So then a lot is known about the potential toxicity 4 of dioxin, isn't it, sir? 5 A. For whom? 6 Q. Doctor, do you enjoy playing this game with me? 7 A. No, sir. 8 MR. HEINEMAN: Objection. Object to the 9 characterization of a game. 10 THE COURT: Objection is overruled. 11 A. Would you repeat the question? 12 Q. You answered the question, Doctor. Doctor, if you 13 don't enjoy then, would you please listen to my questions and 14 answer truthfully, if you can? 15 A. Yes, sir. 16 Q. A lot is known about the potential toxicity of 17 dioxin insofar as it effects animals, isn't that right, sir? 18 A. Yes, sir. 19 Q. And the reason you do the work in animals is to 20 determine what the potential toxicity in man, don't you? 21 A. No, sir? 22 Q. Sir? 23 A. No, sir. 24 Q. What other reasonable -- t /T O 1 A. To find a possible. 2 Q. Is potential and possible equivalent words? 3 A. Not to me. 4 Q. What does "potential" mean? Have the capacity to 5 do something? Isn't that what it means, sir, that it may do 6 something, not necessarily that it will do it, but that it 7 has the,power to do it, has the possibility of doing it? 3 Isn't that what you mean when you say potential? 9 A. No, sir. 10 Q. Doesn't potential mean that it has the power to do 11 it? 12 A. Yes. 13 Q. And when you say that this has the potential 14 toxicity, you mean that it may do it, it has the power to do 15 it, it may not do it, but it has the power to do it? 16 A. Yes, sir, 17 Q. Nov/, you know that this has the power to do it in 18 the animals? 19 A. Yes, sir. 20 Q. But you don't know whether or not for sure it can 21 do all those things in man, isn't that right, sir? 22 A. Yes, sir. 23 ,Q. So, it has the possible toxicity to man as shown by 24 the fact that it has toxicity to animals? <CG 1 A Possible 2 Q. Yes. And, Doctor, you didn't tell your workers 3 that, did you, sir, in this exhibit? 4 A. Yes, sir. 5 Q. Where did you tell them that, Doctor? 6 A. When we say potential toxicity of dioxins is known 7 8 Q. No, no, no, you say very little is known, you don't 9 say it's known. The truth of the fact is that a lot was 10 known but you told them very little was known? 11 A. We are talking about man here. 12 Q. We sure are. 13 A. Yes, sir. 14 Q. That was exactly what my question was aimed at, Dr. 15 Roush? 16 A. Yes, sir. 17 Q. Now, where do you tell them about those possible 18 toxic effects of dioxin, sir? 19 A. We didn't think that there was -- 20 Q. My question is where do you tell them that, sir? 21 A. We don't. 22 Q. As a matter of fact, you tell them just the 23 opposite, don't you sir, you tell them that very little is 24 known, don't you, sir? *7n 1 A. Yes, sir. 2 Q. Doctor, is there any other document -- you've had 3 all this time to come up with this information of what you 4 told your workers about the possible health effects of dioxin 5 to counter what you are telling the outside people that can 6 sue you. What other document is there that? 7 MR. HEINEMAN: Objection, Your Honor, about the 8 constant reference to someone who can sue them. Mr. Carr 9 doesn't know that. That isn't evidence in this case. It's 10 just meant to try to inflame the jury, and I object to it, 11 THE COURT: Objection is overruled. 12 Q. Doctor the thrust of my question is what other 13 information do you have, what other document do you have that 14 you can give us that you told your workers about the possible 15 health effects of exposure to dioxin? 16 A'. Other documents -- 17 Q. Yes, Doctor? 18 A. In our newspaper that goes out, there have been 19 other statements about the effects of dioxin on man. 20 Q. Where are they, Doctor? 21 A. I don't have them with me. 22 Q. Well, Doctor, I don't have them either, and they 23 were supposed to be produced to me. Doctor, this exhibit 24 dated December of 1979 -- V 1 A. Yes, sir, 2 Q. Is the best that you at Monsanto can do to come up 3 and demonstrate what you in fact told the workers/ isn't that 4 right, sir? \ 5 A. Yes, sir. 6 THE COURT: Gentlemen, could I see you at the bench 7 for a minute, please? 8 (Following a side bar conversation which was outside the 9 hearing of the Court Reporter and the jury, the following 10 proceedings were had in open court.) 11 Q, Doctor, you have never told anybody else, 12 customers, the public, the people at Sturgeon, you've never 13 told anybody else, other than, or any more than what you've 14 told the workers as shown in Exhibit 1515, or Monsanto's 920, 15 isn't that correct, sir? 16 A. I don't know. 17 Q. Doctor, isn't it a fact that the position that 18 you've taken with your workers, as shown by Exhibit 1515, 19 Monsanto Exhibit 920, isn't it a fact that this is the same 20 position that you at Monsanto have taken with regard to the 21 public that might be exposed to dioxin in your products, to 22 the people at Sturgeon that might be exposed to the dioxin in 23 your chemicals, and' to everybody else that has any connection 24 with Monsanto produced dioxins? n^ 1 A. Mo, sir. 2 Q. What other position have you taken, sir? 3 A. We were concerned -- 4 Q. Excuse me, what other position have you taken, 5 other than what is stated in this exhibit? 6 A. I don't know what you mean by position. 7 Q. Doctor, you've taken a position here demonstrated 8 by this document that you brought into court to show how 9 forthcoming you have been about knowledge of dioxin to your 10 workers? n A. Yes, sir. 12 Q. And there are no other documents. I want to know, 13 sir, what position have you taken with the world at large, 14 the plaintiffs in this case, your customers of your 15 chemicals, your workers, anybody else other than the position 16 that is manifested and demonstrated and stated in Monsanto f 17 Exhibit 920? 18 A. No other document.that I know of. 19 Q. Has there been any public -- well, all your public 20 pronouncements come in the way of press releases -- those 21 would be a document, so there isn't anything else then, is 22 there, sir? 23 A. We told the employees at Nitro related to there 24 exposure to dioxin. i -7O 1 Q. Did you tell them that in writing? 2 A. No, sir. 3 Q. Doctor, did you have a stenographer write down what 4 you told them? 5 A. We have records that Dr. Suskind was dov/n there and 6 told them about the study. 7 Q. Did you tell them something other than you told the 8 workers at Krummrich as shown in Exhibit 920? 9 A. Yes, sir. 10 Q. What else did you tell them, sir? 11 A. They were given copies of all the tables from the 12 Suskind final draft report, all those tables were presented 13 to them over a period of two or three hours. 14 Q. Doctor, those tables, and we will get to that on 15 this morbidity study in a moment, those tables simply compare 16 the ailments of highly exposed people to people who are not 17 so highly exposed? 18 A. Yes, sir. 19 Q. Doctor, there isn't anything in your studies, in 20 this Suskind study that tells those people whether they are 21 healthy or sick, all they do is compare the extent of 22 sickness. There are no normal reference ranges given in 23 those studies? 24 A. No, sir. ^a 1 Q, And so they are really not given any information 2 other than comparing them to one another, that's all they are 3 given, isn't that right, sir? 4 A. Yes, sir. 5 Q. Doctor, where is the -- is the document where you 6 tell those people that they can have cardiovascular 7 disorders? 8 A. It's in Dr. Suskind's report. 9 Q. Does it say there that they can get a 10 cardiovascular disorder from exposure to dioxin? 11 A . No, sir. 12 Q. But, you know that and we have demonstrated that, 13 that's considered by some scientists as a potential problem 14 with dioxin exposure? 15 A. No, sir. 16 Q. Doctor, didn't we just get through going through 17 that? 18 A. Yes, sir. 19 Q. And, Doctor, what they were told in your morbidity 20 study is that they have the same rate as others in the 21 Kanawha Valley? 22 A. Yes, sir. 23 Q. And you have said that's because the people that 24 live in that valley have an unusual lifestyle that makes them 7 C 1 more susceptible to cardiovascular heart disease, isn't that 2 right? 3 A, Yes, sir. 4 Q. You didn't tell those people that exposure to the 5 chemicals that Monsanto puts out in that valley might be a 6 cause of those cardiovascular disorders, did you, sir? 7 A. No, sir. 8 MR. HEINEMAN: Objection, Your Honor, there is no 9 evidence of that. ^ 10 THE COURT: Objection is overruled. 11 Q. And you well' know, though, don't you, Doctor, that 12 the chemicals emitted by that plant may well contribute to 13 cause or to cause cardiovascular disorders, you know that, 14 don't you? 15 A. No, sir. 16 Q. Didn't Mr. Heineman suggest to you that because 17 those people in a question, and it was passed over, I don't 18 know that you had an opportunity to respond, but didn't he 19 suggest to you that the cardiovascular disorders in that 20 valley were because of the chemical companies that were lined 21 up there in the'valley, you recall him asking that question? 22 A. Yes, sir. 23 Q. And, did you not agree or did you even answer that 24 question? 1 A. No, sir. 2 Q. You didn't answer that, did you, sir? 3 A. No, sir. 4 Q. He just passed that over,hoping that it would 5 appear that Monsanto's position is that the chemicals caused 6 it, but there wouldn't be anything on record to support that 7 isn't that right, sir? 8 A, I don't know. 9 MR. HEINEMAN: Objection. 10 THE COURT: Objection is overruled. 11 Q. Your position, in fact, Monsanto's position in fact 12 is that those chemicals put out by Monsanto and the other 13 chemical companies in that valley haven't caused or 14 contributed to cause the heart disease, isn't that correct, 15 sir? 16 A. Yes, sir. 17 Q. And it is Monsanto's position that the 34 percent 18 higher heart disease death rate in that valley is simply 19 because all the people in that valley live a lifestyle, they 20 eat more fat food, they smoke more, they drink more, they 21 sleep less, they do everything different in that valley in 22 Nitro West, Virginia, in Charleston, West Virginia, they do 23 all those things in that area differently than the rest of 24 us, and that's the reason they have got their heart disease, nn 1 that is your position, isn't it, Doctor? 2 A. Yes, sir. 3 Q. But you at Monsanto have never examined the people, 4 you have never done a study to determine whether their 5 lifestyle is any difference than anybody else's, isn't that 6 also correct, sir? 7 A. Yes, sir. 8 Q. And it's also correct that you have not one single 9 bit of information, other than the fact that they have got a 10 34 percent higher death rate from heart disease than the rest 11 of the country, you haven't one single bit of information 12 other than that fact, isn't that right, Dr, Roush? 13 A. Yes, sir, 14 Q. Now, and this is something that you've also told 15 your workers there at Nitro, isn't it, sir? 16 A. Yes. 17 Q. You've got a 34 percent higher death rate from 18 heart disease, but it's not caused by the chemicals that you 19 are exposed to, it's caused because you live 20 extraordinarily fast or unusual or live differently than the 21 rest of the country lives. That's what you are telling them 22 in effect? 23 A. No, sir. 24 Q. What are you telling them, sir? hn 1 A. We are telling them that there is no more mortality 2 in the workers in our plant than there is outside of our 3 plant. 4 Q. In that valley? 5 A. In that valley. 6 Q* Yes. , 7 A. And the fact that the workers who aren't exposed to 8 dioxin, who do not have Chloracne, have the same amount of 9 cancer, same amount of cardiovascular disease, and that there 10 is no increase, no difference between the two; says that 11 there is no relationship between their exposure and 12 cardiovascular disease, and that's exactly the same thing 13 that Moses found. 14 Q. Moses said, in effect, that it was the chemicals in 15 the Kanawha Valley? 16 A. No, sir. 17 Q. Didn't she? 18 A. No, sir. 19 Q. Well, we will get into that when I get to the 20 Moses-Selikoff study. Did not Moses and Selikoff point out 21 that the heart rate was higher in the Kanawha Valley than the 22 rest of the country? 23 A. Yes, sir. 24 Q. Did Moses-Selikoff say that that was because of the ^n 1 lifestyle that they had there? 2 A. No, sir. 3 Q. What did they say caused that? 4 A. They didn't say why, just that it was the case. 5 Q. But now your position is that it's the lifestyle 6 and not the chemicals? 7 A. Yes, sir. 3 Q. But Moses-Selikoff didn't take that position, did 9 they? 10 A. Yes, sir . 11 Q. Where did they take that position? 12 A. They took the fact that we found an excess of heart 13 disease, and the same level of excessive heart disease was 14 found in the valley, and saying that that means that our 15 experience within the plant was not exaggerated over the 16 non-exposed. 17 Q. Doctor, everybody in that valley is exposed to 18 those* chemicals, this effluent from those chemical plants,, 19 isn't that correct, sir? 20 A. Yes, sir. 21 Q. All you are comparing is more heavily exposed with 22 less heavily exposed, with less heavily exposed. That's all 23 you are comparing when you talk about those people in that 24 valley?; on 1 A Yes, sir 2 Q. So, Doctor, you can't use the words unexposed in 3 describing the people in that valley, can you, sir? 4 A. It's so small that you can't measure it. 5 Q. Doctor, there is all kinds of things so small you 6 can't measure it, you are still exposed to it. 7 A. It's possible. 8 Q. Doctor, Moses-Selikoff did not say anywhere that 9 that valley had a different lifestyle than the rest of the 10 country, did they, sir? 11 A. No, sir, they did not. 12 Q. Suskind didn't that say either, did he, sir? 13 A. No, sir. ` 14 Q. Nobody said that except you and Monsanto, isn't 15 that correct, sir? 16 A. Yes, sir. So did Moses. 17 Q. I thought I just asked you if Moses-Selikoff said 18 that and you said, no, she didn't say that? 19 A, She said there was excess cardiovascular disease. 20 Q. That's exactly what she said, didn't attribute that 21 to the lifestyle, did she, sir? 22 A. Yes, sir. 23 Q. Where di'd she attribute it to the lifestyle? 24 A. It's implied in that sentence. 1 Q. Because someone has a higher death rater that is 2 implied that it's from a lifestyle, not from the chemicals? 3 A. Yes, sir 4 Q. Doctor, were on earth did you go to school? How 5 can you possibly say there are 34 percent people in Kanawha 6 Valley that have higher death rates and that means ipso facto 1 that it's their lifestyle. There could be a million things 8 that could cause that, and that's an exaggeration, other than 9 lifestyle, isn't that right, sir? 10 A. No, sir. 11 (2. Well, where did Moses-Selikoff say that it was the 12 lifestyle? Don't give me the implication, we can read and 13 interpret the words, Doctor, did she say that that higher 14 death rate from heart disease was from lifestyle? 15 A, No, sir. 15 Q, All she said there is a higher death rate from 17 heart disease among the Monsanto plant workers and there is 18 also a higher death rate in that valley, that's what she 19 said, didn't- she, sir? 20 A. Yes, sir. 21 Q. And, Doctor, you know as you sit there, you know in 22 your heart and in your mind that those people in that valley 23 live exactly the same way the rest of us live? 24 A. No, sir. QO 1 Q. You don't know that? 2 A, No, sir, 3 Q. Doctor, why? What makes you say -- they have a 4 higher death rate. What makes you say they live different 5 than the people here in Belleville? 6 A, ' One- of the most heavily studied medical problems 7 today is heart disease, and the risk factors that contribute 8 to heart disease are v/ell described, the magnitude is just 9 horrendous. 10 Q. Yes, I agree. 11 A. 'All right, smoking, obesity -- 12 Q. Yes. 13 A. Cholesterol, high blood pressure, inactivity, all 14 of those are well recognized factors. 15 Q. No doubt about it. 16 A. And there are -- the doctors in Kanawha Valley will 17 talk about the lifestyle abnormalities as the basis for their 18 heart disease, the good ones, the University of West Virginia 19 in Charleston will say the same thing. 20 Qi Doctor, the lifestyle that you are describing will 21 cause heart disease, and it's all through the country? 22 A. Yes, sir. 23 Q. And it's what has gone to make what is the standard 24 death rate in the United States, all those people doing those nn 1 things all thrown in together make up that standard, doesn't . 2 it, sir? 3 A. Yes, sir. 4 Q. All right. Now, so that is taken care of when you 5 look at the standard. Nov;, the people in Kanawha Valley, has 6 anybody said that that large group of people live differently 7 than anybody else? 8 ,A. Yes, sir. 9 Q. Who said it? 10 A, The doctors at West Virginia Medical School. 11 Q. Who said it, sir? 12 A. Dr. Waldman, the profes -- 13 Q. What did he say? 14 A. He said the people's heart disease that he examined 15 from Nitro was related to their lifestyle. 16 Q. Now, Doctor, that may well be. Isn't what it 17 means, Doctor, if you are overweight, and if you smoke, and 18 if you don't exercise that there is a risk, an important risk 19 that you are going to have heart disease? 20 A. Yes, sir. a 21 Q. Now, that's the risk that applies to every person, 22 but that person put in Kanawha Valley, that person that 23 doesn't exercise, and those other things, and has high 24 lipids, that person put in Kanawha Valley has his lifestyle ________ ;------------------------------- ---,__.___________________ na 1 there just as he has the lifestyle elsewhere, and that person 2 is subject along with others to a higher death rate by virtue 3 of the fact that he is in Kanawha Valley? 4 A. No. No, sir. 5 Q. No? Doctor, has anybody said that isn't a fact?/ 6 A. Yes, sir. 7 Q- Who said that, sir? 8 A. There are populations in the United States where 9 people do not smoke, do not eat meet, do not drink, and just 10 those three factors,- and their heart disease is very low. 11 Those people are vegetarians, 12 Q. Nobody is quarreling with that. That goes in to 13 make up the average death? 14 A. No, sir. 15 Q. Doctor, the people at Rush City, a subdivision of 16 East St. Louis, I'm sure you are familiar with it, aren't 17 you, sir? 18 A. I know -- \ 19 MR. HEINEMAN: Object, Your Honor, that has 20 absolutely no relevance to this case. 21 MR. CARR: It has indeed relevance, Your Honor. 22 THE COURT: Go ahead, Mr. Carr. 23 Q. (by Mr. Carr) Those people are living adjacent to 24 the Monsanto Krummrich plant, you know that, don't you, sir? QC 1 A. 'Yes, sir 2 Q. And you know that on occasion they get exposed to 3 chemicals and chemical discharge from that plant that the 4 workers don't get exposed to, you know that, don't you, sir? 5 A. Mot that the workers don't get exposed to. 6 Q. Doctor, you know the workers have their -- as soon 7 as a spill takes place, as soon as this valve gets stuck or 8 can't close, or a pipe pops, that chemical goes out and the 9 workers have their alarm system and they immediately take 10 protective measures, don't they, sir? 11 A. Yes, sir. 12 Q. So that to prevent them from being exposed to that 13 escaping chemical? 14 A. Yes, sir. 15 Q. Now the people of Rush City, they don't have those 16 rubber suits and respirators, do they? 17 A. Yes, sir, they do not. 18 Q. That chemical comes down in Rush City, doesn't it, 19 sir? 20 MR, HEINEMAN: Your Honor, may I have this be a 21 continuing objection? 22 THE COURT: Sure. 23 1 MR. HEINEMAN: To this totally irrelevant line of 24 questioning, which in my view is being offered to introduce on 1 inflamatory matters in front of the jury, and I object to it. 2 THE COURT: Objection is overruled. It is 3 relevant, it's not inflammatory, Mr. Carr, you may proceed, 4 I will note it as a continuing objection. 5 Q. (by Mr. Carr) Doctor, in addition to that kind of 6 accidential discharge, the people of Rush City living closer 7 to that chemical plant and those things, because you gave an 8 example the other day about how the closer you are the more 9 risk you have. They have a greater risk to the things that 10 come out of that plant than the people say in Belleville, 11 don't they, sir? Belleville being some five to ten miles 12 from that plant? 13 A. Greater exposure. 14 Q. They have a greater exposure, therefore greater 15 risk? \ 16 A. Not necessarily. 17 Q. Doctor, I thought you've been telling us all the 18 time that the risk is related to the dose? 19 A. Yes, sir, absolutely. 20 Q. And those people are exposed to greater dose than 21 the people in Belleville, aren't they, sir? 22 A. Yes, sir. 23 Q. Therefore they have a greater risk? 24 A. Depends on the level that will produce an effect." 1 Q. * Whatever is there, they have a greater risk if it 2 is one one-ten-billionth, they have a greater risk than the 3 people in Belleville, who may be exposed to one 4 one-ten-trillionth, isn't that right? 5 A. No, sir. 6 Q. They don't have a greater risk? 7 A. No, sir. 8 Q. Then there is no relationship between dose and 9 exposure or risk? 10 A. No, sir. 11 Q. You are saying there is o \ is not? 12 A. There is a correlation. 13 Q. There is. And, Doctor, doesn't it follow that the 14 people in Rush City are exposed to a higher level of 15 contaminant coming out of that plant than the people at 16 Belleville? 17 A. Yes, sir. 18 Q. And if there is any risk connected with that 19 exposure, they are at greater risk, aren't they, sir? 20 A. Yes, sir. 21 Q.- Now, that same thing, Dr. Roush, is also true for 22 the people of the Kanawha Valley, isn't it, sir? 23 A. What the same is true? 24 Q. The people living closer to Monsanto's plant are at nn 1 greater risk for accidental exposure, and for just every day 2 exposure to those contaminant discharged by that plant, 3 aren't they, sir? 4 A. No, sir. 5 Q. It's true for the people here in St. Clair County6 that's connected with the Krummrich Plant at Sauget, it's not 7 true for the people at Kanawha Valley? 3 A. Depends on what chemical you are talking about. 9 Q. Doctor, whatever the chemical may be? 10 A. No, sir. 11 Q. Doctor, did the Krummrich Plant for years 12 manufacture chemicals that had in it 2,3,7,8-TCDD? 13 A. I don't think so. 14 Q. What makes you say you don't think so, Dr. Roush? 15 A. We haven't been able to measure it in most of our 16 chemicals. 17 Q. Doctor, what chemicals haven't you -- how about 18 2,4,5-T? 19 A. 2,4^5-T, yes. 20 Q. Sir? 21 A. Yes, sir. 22 Q. Manufactured for years at Nitro, wasn't it, sir? 23 A. Yes, sir. 24 Q. And dioxin is in that 2,4,5-T at Nitro, no question O f\ 1 about that? 2 A. Yes, sir. No, sir. 3 Q. There is also 2,3,7,8-TCDD found in the chemical 4 manufactured at Sauget, Illinois, isn't that correct? 5 A. TCDD, yes. 6 Q. 2,3,7,8-TCDD? 7 A. Some chemicals, yes.' 8 Q. Now, Doctor, the people at Kanawha Valley are 9 exposed to that, were exposed to that 2,3,7,8 TCDD, were they 10 not, sir? / 11 A. I don't know. 12 Q. Doctor, do you not remember agreeing with me that 13 they are exposed to dioxins put out b y that plant, you recall 14 that, sir, your testimony earlier in this case? 15 A. Yes, sir. ie Q. That was the truth then, wasn't it, sir? 17 A. No, sir,.we are talking r- 18 Q. Was it a lie then? 19 ' A. No, sir. 20 Q. Was it a mistake, those people at Kanawha Valley ' 21 exposed, do they have some exposure to dioxin emitted in the 22 fumes, emitted in the air, in the dust, in however it goes 23 through, do'they have some exposure to the dioxin? 24 A. Theoretically. AA 1 Q. And they have it -- if the dioxin is manufactured 2 there it can and does escape, doesn't it, sir? 3 A. Yes, sir, 4 Q. There was an escape in 1949, wasn't there, sir? 5 A, Some, yes, sir. 6 Q. And the people of Kanawha Valley are exposed to 7 those dioxins that are contained in your effuence, in your 8 gases, in your smoke, in your steam, and in your accidental 9 discharge, and in the dust blowing off from your plant, 10 aren't they, sir? 11 A. Yes, sir, 12 MR. CARR: Your Honor, that would be -- I've gone 13 past noon. 14 THE COURT: Ladies and gentlemen, we will break for 15 lunch at this time. We will start again at one o'clock. The 16 admonishments that I've given you earlier will apply during 17 this lunch break also. Court is in recess for lunch. 18 COURT ADJOURNED: 19 20 21 22 23 24 1 STATE OF ILLINOIS ) ) 2 TWENTIETH JUDICIAL CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR ) 4 5 I, DEBRA M. MUSIELAK, certify the foregoing to be a 6 true and accurate transcript of the testimony and proceedings 7 in the above-entitled cause. 8 Dated this o U g -.day of July, 1985. 9 10 11 12 13 14 15 16 fl). / 17 18 19 20 21 22 23 24 Q9 \ 1 STATE OF ILLINOIS ) ) 2 TWENTIETH JUDICIAL CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR ) 4 5 I, RICHARD P. GOLDENHERSH, one of the Judges in and 6 for the Twentieth Judicial Circuit, do hereby certify that I 7 have examined the aforesaid transcript of proceedings, and 8 certify the foregoing to be a true and accurate transcript of 9 the testimony and proceedings in the above-styled cause. 10 Dated this _____ day of July, 1985. 11 12 13 14 15 16 HON. RICHARD P. GOLDENHERSH 17 18 19 20 21 22 23 24 n ft