Document 44197Rn1eNaokDRzxoRvkop0x

IN THE UNITED STATES,DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION CECIL SCOTT, ET AL VS. MONSANTO COMPANY * * * * CIVIL ACTION . * NO. B-84-1103-CA * * ********************** SEPTEMBER 2, 1987 VOLUME XIII ********************** BEFORE THE HONORABLE JOE J. FISHER UNITED STATES DISTRICT JUDGE, AND A JURY REPORTED BY: C. FRANK MCMILLAN FEDERAL COURT REPORTING CO. P. O. BOX 2664 BEAUMONT, TEXAS 77006 (409) 839-2518 c My name is Phillip S. Smith and I live in Barrington, Illinois. I am a former employee of Industrial Biotest Laboratories, Inc. [2184 I visited with Mr. Peck of Monsanto in my home to discuss Aroclor compounds and what my involvement might have been with them.' Peck asked me if I had consulted a private attorney regarding my liability in speaking to anybody about Aroclor products. [2184-2185] I was first employed at IBT in January 1971, as an assistant toxicologist and concluded my employment in June 1977. I worked on Monsanto's Aroclor studies and helped prepare the reports. I audited studies. I spent approximately nine months looking at studies done from 1970 through 1976. [2185-2186] Otis Francher was manager of the lab when I started there. Paul Wright was hired as a section head of toxicology about two months after I started at the lab and he was in charge of the rat and dog toxicity areas and I was an employee in rat toxicity and worked with Wright in Monsanto's Aroclor studies. Mannie Reyna was an employee in the rat toxicity department. I am familiar with the care and handling of the rodents used in regards to Monsanto's Aroclor chronic oral toxicity studies. [2187] The initials on that document regarding the Aroclor study, P.L.W. is Paul L. Wright and it is addressed to Marino L. Keplinger who is manager of the laboratory. [2188] There was a problem with the survivability of the rodents on Monsanto's Aroclor study. The document says the tumor incidents in females with 1254 is bothersome, 82 percent at 10 parts per million and 100 percent at a 100 parts per million. [2188] I have personal knowledge of deficiencies with regard to Monsanto's Aroclor studies. The report of raw Aroclor studies was falsified. I signed two reports that contained false information and someone forged my name to one of the other studies. [2189-2190] TBD means "too bady decomposed". When these initials appear in a report it means that the animal was too badly decomposed and the technician disposed of the animal. The pathologist never gets a chance to look at tissue because the technician has the animal thrown away. 70% or more of the animals that died during the course of the study were too badly decomposed. [2190-2192] -2- c /_ c In the document that I am looking at is a statement by Dr. Francher. "I am ashamed to publish the work done on these studies." I, too, would be ashamed. [2192] I know of no other client of IBT besides Monsanto that wanted its-papers reviewed by lawyers before they could be put in final form. [2193] In most rodent studies, the animals were housed in a small cage and depending on what room they were in, there were either water bottles or an automatic watering mechanism that was supposed to supply water to the animals, feed, pans underneath the cages to catch urine, feces, food that was kicked out. The conditions were poor, there were many loose animals.' Dr. Wright had knowledge of the conditions. [2194] I*4 The visits of Monsanto personnel to IBT included Dr. Hunt, Dr. Sharph, Dr. Levinsksas, possibly a Dr. Wheeler and Dr. Paul Wright. [2194] Had any of these personnel visited the rodent's rooms, they would have seen the deficient conditions. [2195] Paul Wright continued to come back to IBT after he returned to Monsanto until the time I left the employment of IBT and he was still ineracting with IBT in Monsanto studies. [2195] I am looking at graphs of body weight data for the control and test groups of the three Aroclor materials in the two-year study on Aroclor that Biotest did. A majority of the data is falsified. [2196] Paul L. Wright falsified the part of the data with regard to Aroclors. I observed him fabricate the body weight data for the rodents used on Monsanto's Aroclor studies. He never requested that the study be redone. [2197] ; CROSS-EXAMINATION With respect to the three sets of reports on Aroclor, the., first, group concludes that the effect was normal. The second group concludes that all had a slightly tumorigenic effect and the final set concluded that the product does not cause cancer. These are the first reports that were done dated November of '71. [2198] On the signature page on the report of Aroclor 1254, Paul Wright forged my signature. [2199] -3- cc Monsanto received special treatment from other customers of IBT. After Paul Wright returned to Monsanto he personally dictated changes to reports of products for Monsanto. [2199] I know testimony has been given by Dr. Levinsksas that he found these reports valid. No one could validate the Aroclor studies without making any investigations. [2200] I never worked for. Monsanto. [2201] REDIRECT EXAMINATION In 1971, then these reports were being done, I was just starting to learn about writing lab reports and I prepared a small section. Dr. Paul Wright and Jim Plank prepared many sections and they told me I was going to have to sign the report. [2233] I complained to Paul Wright about the falsification that I observed. [2234] I had a problem with my eyes and still do, which required surgery. It appeared to others as if I was sleeping on the job when I was not. [2235]I I have not asked to be paid for my time in connection with this testimony. I am only being reimbursed for expenses. [2236] RECROSS EXAMINATION I did not tell anybody other than IBT employees in 1971 about the deficiencies. [2237] cc I IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION CECIL SCOTT, ET AL * VS MONSANTO COMPANY * CIVIL ACTION * NO. B-84-1103-CA ********************** September 3, 1987 Volume XIV ********************** ) BEFORE THE HONORABLE JOE J. FISHER UNITED STATES DISTRICT JUDGE, AND A JURY Reported by: C..Frank McMillan Federal Court Reporting Co. P. O. BOX 2664 Beaumont, Texas 77006 (409) 839-2518 J CC a, ------------------------- ! 2163 i appearances 2 3 ATTORNEYS FOR PLAINTIFFS: 4 MR. DAVID M. LACEY MR. MICHAEL A. POHL 5 MS. SUSAN BAKER Gilpin, Pohl & Bennett 6 1300 Post Oak Boulevard Houston, Texas 77056 7 MR. THOMAS HENDERSON 8 MR. ANTONIO PYLE Henderson & Goldberg 9 1030 Fifth Avenue Pittsburgh, Pennsylvania 15219 10 MR. BENTON MUSSLEWHITE 11 609 Fannin, Suite 517 Houston, Texas 77002 12 13 ATTORNEYS FOR DEFENDANT: 14 MR. ROBERT A. HALL MR. ROBERT A. JONES 15 MR. JONATHAN SHOEBOTHAM Woodard, Hall & Primra 16 4700 Texas Commerce Tower Houston, Texas 77002 17 MR. TANNER T . HUNT, J R . 18 MS. CHERYL D. OLESEN MR. WALTER CRAWFORD 19 MR. MARK FREEMAN Wells, Peyton, Beard, Greenberg, 20 Hunt & Crawford P. O. Box 3708 21 Beaumont, Texas 77056 22 ALSO PRESENT: 23 Mr. William Papageorge, Corporate 24 Representative for the Monsanto Chemical Company. 25 (( -------- 1-- :------------- ------ ---------- :------- : 2 r4 1 PHILLIP S. SMITH, 2 HAVING BEEN DULY CAUTIONED AND SWORN TO TELL THE 3 TRUTH, THE WHOLE TRUTH AND NOTHING BUT THE TRUTH, 4 TESTIFIED AS FOLLOWS: 5 6 7 DIRECT EXAMINATION 8 BY MR. POHL: 9 Q Would you state your full name? 10 A Phillip, middle initial "S ," Smith. 11 Q And where do you live? 12 A Barrington, Illinois. 13 Q Are you a former employee of Industrial 14 Biotest Laboratories, Inc.? 15 A Yes, I am. 16 Q Now, prior to your testimony here before the 17 Court today, have you visited with anyone from 18 Monsanto in your home in recent months? 19 A Yes, I have. 20 Q Who was that? 21 A A Mr . Tim Peck . 22 Q And, very, very briefly, what was the 23 substance of that visit and the nature of the 24 visit? 25 A Mr . Peck wanted to discuss Aroclor compounds C f C 7TE5 1 and what my involvement might have been with 2 them. ; 3 Q How was it that he came to your house? 4 A He came to the front door and said that he 5 was passing through the neighborhood and thought 6 he would stop in and chat with me. 7 Q Where do you live in relationship to 8 Chicago, Illinois? 9 A About 40 miles northwest of Chicago. 10 Q Did he indicate anything to you about your 11 personal liability if you say anything against 12 Aroclor products? 13 A Mr. Peck asked me if I had consulted a 14 private attorney regarding my liability in 15 speaking to anybody about Aroclor products. 16 Q Are you still willing to testify here before 17 this jury? 18 A Yes, I am. 19 Q All right. Tell us briefly what your job 20 was at IBT? 21 A For most of my time at IBT I was an 22 assistant toxicologist. 23 Q When were you firstemployed? 24 A January, 1971. 25 Q When did your employment conclude? ( J ( 2186" 1 A June of 1977. 2 Q And in addition, let me ask you this: With 3 regard to the Monsanto rodent Aroclor studies, 4 did you personally work on Monsanto's Aroclor 5 studies? '` 6 A Yes, I did. 7 Q Did you personally help prepare the reports 8 of the conclusions on Monsanto's Aroclor studies? 9 A Yes, Idi d. 10 Q In addition toyour personally having worked 11 on their studies, was there a point in time at 12 IBT when the parent company of IBT conducted an 13 audit of what had gone on in recent years at that 14 laboratory? 15 A They had conducted an inhouse investigation. 16 Q What was your role in that investigation? 17 A I had testified in thatinvestigation. 18 Q Well, I'm not talking about that. With 19 regard to the actual looking at the documents, 20 auditing the work that had been done and so 21 forth, did you have a role in that? 22 A I audited studies, yes. 23 Q And for what period of time did you go back 24 and audit prior studies? 25 A I spent, with a number of people, cc J ------------------------- - - 2187 1 approximately nine months time looking at studies 2 that had been done from 1970 through 1976. 3 Q Who was Otis Prancher? 4 A Otis Francher was manager of the laboratory 5 when I started there. 6 Q Who is Paul Wright? 7 A Paul Wright was hired as section head of 8 toxicology about two months after I started at 9 the laboratory and he was in charge of the rat 10 and dog toxicity areas and I was an employee in 11 the rat toxicity. 12 Q In connection withMonsanto's Aroclor 13 studies, did you personally work with Paul L. 14 Wr ight? 15 A Yes. 16 Q , Who was Mannie Reyna? 17 A Mannie Reyna was an employee in the rat 18 toxicity department. 19 Q Are you familiar with the care and handling 20 of the rodents used in regards to Monsanto's 21 Aroclor chronic oral toxicity studies? 22 A Yes, I am. 23 0 Are you familiar with theelectronic 24 weighing machine at I3T? 25 A Yes, I am. (C TTFF 1 Q Let me ask vcu very briefly about a few 2 documents that Dr. C a 1andra.proved up and that we 3 have taken the liberty of blowing up. 4 Regarding the Aroclor study, whose initials 5 appear at the top left-hand corner of this 6 document, "P.L.W. " 7 Do you recognize those initials? 8 A PaulL.Wright. 9 Q It also is addressed to a man named "M.L.K." 10 Who is that? 11 A Marino L. Keplinger. 12 Q Who was he? 13 A Manager of the laboratory. 14 Q With regard to the Aroclor studies, one 15 comment is: Unless survival can be improved, I'm 16 concerned that all of your rat carcinogenic 17 studies will be judged to be inadequate. 18 Was there a problem with the survivability 19 of the rodents on Monsanto's Aroclor study? 20 A Yes. 21 Q On the second page, the document goes on to 22 say: The tumor incidents in females with 1254 is 23 bothersome, 82 percent at 10 parts per million 24 and 100 percent at a 100 parts per million. With 25 regard to the tumors in the animals and with (C -------------------------------- ------------------------ 2Tb*y 1 regard to mortality of the animals during the 2 course of the study, was there a small or a large 3 percentage of the animals that died during the 4 course of the study? 5 A There was a -- 6 7 MR. JONES: Your Honor, I would like to 8 interpose an objection at this point, if I 9 may. 10 Your Honor, I would object that the 11 proper predicate has not been laid to show 12 that this witness has personal knowledge of 13 those facts that he's about to testify to. 14 In fact, I anticipate his answer based upon 15 the deposition which showed that he does not 16 have personal knowledge, but it's based on 17 hearsay. 18 THE COURT: Objection overruled. 19 20 BY MR. POHL: 21 Q Do you have personal knowledge of 22 deficiencies with regard to Monsanto's Aroclor 23 studies? 24 A Yes, I d o . 25 0 Let me just let me just jump ahead for a (. f rV. 2 1 917 1 moment and cover scrr<0 things generally and then 2 we will come back and detail it. 3 Do you have personal knowledge that the raw 4 data with regard to Monsanto's Aroclor studies 5 was either falsified or fabricated? 6 A The report of the raw data was falsified. 7 Q You know that personally? 8 A Yes. 9Q Did you actually sign reports that contained 10 false data? il A I signed two reports that contained false 12 data, yes. 13 Q In addition, did someone forge your name to 14 one of the other Aroclor studies? 15 A Yes, they did. 16 Q Now, let me ask you one other question: 17 What do the initials TBD mean in regard to the 18 Monsanto Aroclor studies? 19 A In the necroseslogs the TBD means "too 20 badly decomposed." 21 Q I'm going to show you -- 22 23 MR. POitl.: May I approach the witness? 24 THE COURT: Yes . 25 r ( 7 1'9T 1 BY MR. POHL: 2 Q - - a document marked Plaintiffs' 2916, which 3 is a part of the Monsanto Aroclor reports. It's 4 entitled "Histopathologic" -- "Histopath Logistic 5 Sheet." Are you familiar with that document? 6 A Yes, I am. 7Q It contains in its text, a tabulation with 8 regard to rats used on Monsanto's Aroclors 9 studies, does it not? 10 A Yes, it does. 11 Q And in regards tothe information listed 12 with some of theserats -- and I'mjust flipping 13 through some of the pages -- do you see the 14 initials TBD, and TBA? 15 A Yes . 16 Q And again, what do those initials mean when 17 used together? 18 A It means that the animal was too badly 19 decomposed and the technician disposed of the 20 animal. 21 Q When an animal is too badly decomposed and 22 is destroyed or thrown away, what happens to the 23 ability of the pathologist to use that animal to 24 determine whether it died from cancer, whether it 25 died from tumors or other things? ( (: -----:------ ;---------- ----- :-------- ~~--------- ZTET? 1 A The pathologist never gets a chance to look 2 at any tissues from the animal because the 3 technician has thrown it away. 4 Q With regard to the Monsanto Aroclor studies, 5 have you looked at the tabulations regarding the 6 histopathology to determine approximately what 7 percentage of the animals on this study were just 8 thrown away and no one will ever know what it was 9 that killed them? 10 A Approximately 70 percent or more f the 11 animals that died during the course of the study, 12 that are reported in the histopath log sheet were 13 too badly decomposed. 14 Q Now, another document that we have had blown 15 up, and I will just go to the second page of it, 16 is a statement by the man you have identified as 17 Dr. Francher. He says "I'm ashamed to publish 18 the work done on these studies." 19 With regard to the -- "I am ashamed to 20 publish the work done on these studies," with 21 regard to the .Monsanto rodent studies, would you 2 2 be ashamed of the work that was done on the 23 rodent studies? 24 A Yes, I wouId. 25 Q There is another document that refers to the c 2193 1 papers being submitted to Monsanto's lawyers 2 before they could be published. And again I will 3 just go to the second sheet. 4 "I hope to get copies of all the studies in 5 the hands of Bill Papageorge, Scott Tucker and 6 the lawyers next week. I do not anticipate a lot 7 of changes from them and hope that the attorneys 8 agree that we can go ahead with publication." 9 Was there any other client of IBT besides 10 Monsanto that wanted its papers reviewed by 11 lawyers before they could be put in final form? 12 A Not that I know of. 13 Q Are you familiar with the "swamp"? 14 A Yes, I am. 15 Q Are you familiar with the other rooms at IBT 16 where the rodents were housed? 17 A Yes, I am. 18 Q In as brief a manner as you possibly can, 19 can you describe generally the conditions of the 20 animals in those rooms and how they were cared 21 for and housed? 22 A The animals in most rodent studies were 23 housed in a small cage; and depending on what 24 room they were in, there were either water 25 bottles or an automatic watering mechanism that (( 11y4 1 was supposed co supply water'to the animals, 2 feed, pans underneath the cages to catch urine, 3 feces, food that was kicked out. 4 The conditions in most rooms were generally 5 poor, there were many loose animaIs. 6 Q Did Dr. Wright have knowledge of what you 7 have described as generally poor conditions with 8 regard to the housing and care of the animals? 9 A Yes, he d i d . 10 Q Dilring the course of these studies, were 11 there visits by representatives of Monsanto to 12 IBT? 13 A During my employment there, there were 14 visits from Monsanto personnel to IBT. 15 Q Without going into any detail, can you just 16 identify some of the names for the jury of some 17 of the people from Monsanto who came to the 18 premises of IBT while you were employed there? 19 A Dr. Hunt, a Dr. Levinsksas, a Dr. Sharph, 20 possibly a Dr. Wheeler and Dr. Paul Wright had 21 worked at Monsanto before he came to work at IBT 22 and he went back to Monsanto after approximately 23 18 months. And after that, he would come and 24 visit at IBT. 25 0 If any of the gentlemen that you have cc ------------------------------- ------------------ ----- 2T93 1 identified from Monsanto had gone to any of the 2 rooms where the rodents were being housed that 3 were on Monsanto studies, would they have been 4 able to observe these deficient conditions that 5 have been described to this jury? 6 A Yes. 7 Q How would they have -- how would even a 8 casual observer been able to note those 9 condi tions? 10 A The smell in the rooms was terrible, and 11 just looking at the general conditions of the 12 cleanliness of the rooms. 13 Q Now -- and for how long did Paul Wright 14 continue to come back to IBT after he returned to 15 employment at Monsanto? 16 A As far as I know, up until the time I left 17 the employment of I3T -18 Q He was still -19 A -- Industrial Biotest. 20 Q He was still interacting and working with 21 IBT regarding the Monsanto studies? 22 A Yes. 23 24 MR. POHL: May I approach the witness? 25 * K 2196 1 BY MR. POHL: 2 Q Let me show you Document 2881, which has 3 previously been identified and is one of the IBT 4 records which we obtained. Do you know what that 5 document is? 6 A Yes, I do. 7 Q What is it? 8 A They're graphs of body weight data for the 9 control and test groups of the three Aroclor 10 materials in the two-year study on Aroclor that 11 Biotest did. 12 Q You are talking about the Monsanto-sponsored 13 Aroclor studies? 14 A Yes. 15 Q And was this data -- does it pertain to the 16 body weight of the animals? 17 A Yes, it does. 18 Q Was this data a part of the Monsanto 19 Aroclor -- the IBT Aroclor report? 20 A Yes. 21 Q All right. Is the data contained on Page 1 22 of that report, for example, falsified? 23 A Yes, it is. A majority of the data is 24 falsified. 25 Q On every page? C( ': 2197 1 A Yes. 2 Q Who falsified the data with regard to the -- 3 that part of the data with regard to the Aroclor 4 study? 5 A Paul L . Wright. 6 Q Do you have any personal knowledge 7 whatsoever that Paul L. Wright fabricated the 8 data on the Aroclor study? 9 A I observed him fabricate the body weight 10 data that is on this exhibit in front of me. 11 Q Were you in the room with him when he 12 fabricated the body weight data for the rodents 13 used on Monsanto's Aroclor studies? 14 A Yes, I was. \ 15 Q After Paul Wright returned to Monsanto and 16 after he made his trips back to IBT, did he ever 17 request that the study be redone or any curative 18 measure whatsoever be conducted so that an 19 accurate study can be made? 20 A Not to my knowledge. 21 dfZDAS - tv a fh 'iAJo TiM 22 MR. POHL: May I approach the witness, 23 again? 24 THE COURT: Surely. 25 (c -- -- :---.--------;----- -----------: 2196 1 BY MR. POHL: 2 Q I will try to be brief about this, but there 3 are three sets of reports on the Aroclor studies, 4 are there not? 5 A Yes. 6 Q The first group concludes that the effect 7 was normal, correct? v 8 A Yes. 9 Q The second group concludes that allhad a 1 slightly tumorigenic effect? 11 A Yes. 12 Q And the final set concluded that the product 13 does not cause cancer? 14 A Yes. 15 Q All right. Does yoursignature appear on 16 the conclusion page or a purported copy of your 17 signature appear on the conclusion page of the 18 first three Aroclors reports dated November 12, 19 1971? 2 0 A These are the three reports that found 21 nothing wrong. 22 Q Okay. These are the first reports that were 23 done, dated November of '71? 24 A Yes. 25 Q Let me show you very briefly just one of C -------------------- ( -- - 2199 1 those, which is the report on Aroclor 1254; and 2 turn to the signature page. 3 It says, "report prepared by," and then has 4 a signature line for Phil S. Smith, assistant 5 toxicologist. Do you see that? 6 A Yes, I do. 7 Q Is that your signature? 8 A No, it is not. 9 Q Did you sign the report? 10 A No, I did not. 11 Q Who forged your signature? 12 A Paul Wright. 13 Q Withregard to the actual care, feeding, 14 housing of the animals, were Monsanto's rodents 15 treated -- the rodents on Monsanto's studies 16 treated differently than the other rodents? 17 A No, they were not. 18 Q With regard to Monsanto's paper work, the 19 reports of its conclusions and so forth, did 20 Monsanto receive any special treatment different 21 from othercustomers of IBT? 22 A Yes, they did. 23 Q After Paul Wright returned to Monsanto, did 24 he ever return to I3T and personally dictate 25 changes to reports of products for Monsanto? c --------------------- ------------------------------ '22'UU 1 A Yes, he did. 2 Q After -- well let me approach it this way. 3 There has been testimony by a man named Dr. 4 Levinsksas that he validated the IBT Aroclor 5 studies and he found them to be proper and valid, 6 and he wrote that in a report that he prepared. 7 Let me ask you from your perspective as an 8 assistant toxicologist and one who actually 9 worked on these studies and was there everyday 10 when the work was being done: Could one validate 11 the IBT Aroclor studies without making any 12 investigation or drawing any conclusions as to 13 the housing of the rodent's, the feeding of the 14 rodents, the dosage of the rodents, the watering 15 of the rodents, the survivability of the rodents, 16 or the subtleties of the handling of the rodents? 17 A No, they could not. 18 Q Based upon what you observed with the 19 animals that were fed the Aroclor products while 20 you were an employee of Monsanto and based upon 21 what you learned as one the authors of the 22 Monsanto-sponsored Aroclor studies, if someone 23 came to you today and said that Aroclors where as 24 harmless as common table salt, how would you 25 respond? l( -- ---------- ;--------- --- ---------------------------------- 22U i 1A Number one, I thought you said that while I 2 was an employee of Monsanto. 3 Q I mean, an employee of IBT. 4 A I never worked for Monsanto. 5 Q I'm sorry. 6 7 - MR. JONES: Your Honor, may I interpose 8 an objection. 9 I would object to the witness answering 10 any opinion questions along that line. 11 There has been no predicate laid that he is 12 qualified to give such opinions. 13 In fact, if the Court will permit me to 14 take him on voir dire, I could establish 15 that. 16 THE COURT: I don't know whether 17 counsel insists on the question or not. I 18 think the objection will be -- 19 MR. POHL: I will just withdraw the 20 question. 21 Pass the witness for cross examination. 22 THE COURT: You wish to cross examine 23 him? 24 MR. JONES: Yes, Your Honor. 25 22 J 3 1 it won't take but just a minute. 2 3 REDIRECT EXAMINATION 4 BY MR. POHL: 5 Q Without being a certified toxicologist, 6 without being a certified pathologist, are you 7 able to recognize the falsification of data when 8 you see it? 9 A I feel that I am able to do that, yes. 10 Q Why would you have signed those two reports 11 and possibly signed the third back in 1971, but 12 not today? 13 A In 1971, when these'reports were being done, 14 I was just starting to learn about writing 15 laboratory reports at IBT, and I had prepared a 16 small section of these reports. And Dr. Paul 17 Wright and Mr. Jim Plank had prepared many 18 sections, and they told me that I was going to 19 have to sign the report. 2 0 Q You talked about the swamp with Mr. Jones. 21 Were the other rooms -- how did they compare to 22 the swamp? 23 A The other -- the otherrooms were not -- 24 were not wet like the swamp was, but there were 25 more loose animals in the other rooms that would tC 2234 1 get up on the cage racks and chew animals' feet 2 and toes. And in the swamp, there we re n't as 3 many -- the loose animals wouldn't get up in 4 there. 5 Q Did you complain to anyone at IBT about the 6 falsification of data that you saw going on or 7 the conditions that you observed? 8 A Yes, I did. 9 Q On few or many occasions did you complain to 10 the management -- can you hear me? 11 A I can hear you. 12 Q On few or many occasions did you complain to 13 the management of IBT about either the 14 falsification of data or the horrid conditions 15 that the animals were living in? 16 A I didn't -- I still didn't -- the microphone 17 distorted the first word in your question. 18 Q On few or many occasions did you complain to 19 the management about the conditions at IBT or the 20 falsification of data? 21 A I complained about it on many occasions. 22 Q Did you complain to Paul Wright, for 23 example? 24 A Yes, I did. 25 Q There were some questions asked about the CC 2235 1 job that you had after IBT and you were fired for 2 sleeping on the job. 3 A Yes. 4 Q With regard to that particular incident -5 won't take but a second -- do you have a problem 6 with your -- did you have at that time a problem 7 with your eyes? 8 A Yes, I did and I still do. 9 Q Did it require surgery? 10 A Yes, it did. 11 Q Did it appear as if you were sleeping when 12 you were not? 13 A Y e s , it d i d . 14 Q Can you explain that in 10 words or less to 15 the jury. 16 A I have a convergence deficiency that causes 17 my left eye to drift out; and when I am tired and 18 reading a lot, it will drift out and I have 19 double vision so that I will cover my left eye 20 with my hand so I can continue reading and not 21 have double vision. 22 Q Is that what you were doing at the other job 23 when they saw you and thought you were sleeping? 24 A Yes. 25 Q Did other people -- were other people called C -------------- " C " 22 36 1 to testify before the grand jury and to assist 2 the government and give testimony besides 3 yourself? 4 A Yes, they were. 5 Q All right. Have you asked to be paid or is 6 anybody paying for your time in connection with 7 the deposition you gave or your testimony in this 8 trial? 9 A No, I have not. 10 Q Has any offer topay you been made for your 11 testimony? 12 A Other than reimbursing my expenses for being 13 here, there has been no offer for paying for my 14 testimony. 15 Q Does that include yourdirect out-of-pocket 16 expenses only such as the plane fare to get here 17 and the plane fare when you leave today to go 18 home? 19 A T h a t 's correct. 2 0 THE COURT: I think it's unnecessary to 21 go into that. 22 MR. POHL: Pass the witness. 23 THE COURT: Mr. Jones, anything else? 24 1 MR. JONES: Your Honor, I only have 25 about two questions, and that will be it. C 2rZ T 7 1 RECROSS EXAMINATION 2 BY MR. JONES: 3 Q You testified about, these alleged 4 deficiencies today at IBT. Did you tell the 5 United States Government of those deficiencies in 6 1971? 7 A I did not tell anybody other than IBT 8 employees in 1971 about the deficiencies. 9 Q And you also then, based upon that, did not 10 bring that to the attention of the people out at 11 the Monsanto Company? 12 A I h a d -- was not in a position to bring that 13 to the attention of the Monsanto Company. 14 15 MR. JONES: That is all I have, Your 16 Honor. 17 MR. POHL: One question about that. 18 19 20 REDIRECT EXAMINATION 21 BY MR. POHL: 22 Q The data which you say was falsified and the 23 data with regard to the 70 percent of the animals 24 that were too badly decomposed to even determine 25 what caused their death, was that data part of a fC -------------- ------------------------------------ - 2238 1 group of data that was submitted to the Monsanto 2 Company for its review? 3 A I t `s part of the raw data for the study file 4 that Monsanto would have received at some point 5 in time. 6 Q So, if Monsanto had read that study file, 7 would they have seen and could have drawn some of 8 of the same conclusions that you were able to 9 draw from these documents? 10 A They would have been able to see the data, 11 yes. 12 13 MR. POHL: Thank you. 14 THE COURT: All right. I believe this 15 concludes your testimony. And you may be 16 excused. And you may leave. 17 THE WITNESS: Thank you, Your Honor. 18 THE COURT: Ladies and gentlemen of the 19 jury, we have a hearing in another matter, 20 which is probably going to take 15 minutes 21 or so. And we need to have a recess. 22 So, we are going to excuse you for 30 23 minutes. Please return to your places in 30 24 minutes. That will be ten minutes before 25 1 1 : 0 0 . 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF TEXAS 3 OFFICIAL REPORTER'S CERTIFICATE 4 5 6 I, FRANK MCMILLAN, OFFICIAL COURT REPORTER FOR 7 THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN 8 DISTRICT OF TEXAS, DO HEREBY CERTIFY THAT THE ABOVE AND 9 FOREGOING PAGES CONSTITUTE A TRUE, CORRECT AND COMPLETE 10 TRANSCRIPT OF THE PROCEEDINGS IN THE ABOVE STYLED AND 11 NUMBERED CAUSE. 12 WITNESS MY OFFICIA^ SIGNATURE IN^THE CITY OF 13 BEAUMONT, TEXAS, ON " DAY OF. /<7 / 7 14 15 16 17 C. FRANK MCMILLAN 18 OFFICIAL COURT REPORTER UNITED STATES DISTRICT COURT 19 EASTERN DISTRICT OF TEXAS 20 21 22 23 24 25 IN TEE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION CECIL SCOTT, ET AL VS. MONSANTO COMPANY * * * * CIVIL ACTION * NO. B-84-1103-CA * * ********************** SEPTEMBER 2, 1987 VOLUME XIII ********************** BEFORE THE HONORABLE JOE J. FISHER UNITED STATES DISTRICT JUDGE, AND A JURY WITNESS: DR. PAUL L. WRIGHT SHOWING OF VIDEO DEPOSITION READING FROM VIDEO DEPOSITION PAGE 1983 1992 REPORTED BY: C. FRANK MCMILLAN FEDERAL COURT REPORTING CO. P. O. BOX 2664 BEAUMONT, TEXAS 77Q06 (409) 839-2518 Cc 1 APPEARANCES 2 3 ATTORNEYS FOR PLAINTIFFS: 4 KR. DAVID M. LACEY KR. MICHAEL A. POHL, 5 MS. SUSAN BAKER GILPIN, POHL & BENNETT 6 1300 POST OAK BOULEVARD HOUSTON, TEXAS 77056 7 KR. THOMAS HENDERSON 8 HR. ANTONIO PYLE HENDERSON & GOLDBERG 9 1030 FIFTH AVENUE i PITTSBURGH, PENNSYLVANIA 15219 10 MR. BENTON MUSSLEWHITE 11 609 FANNIN, SUITE 517 | | HOUSTON, TEXAS 77002 12 13 ATTORNEYS FOR DEFENDANT: 14 KR. ROBERT A. HALL MR. ROBERT A. JONES 15 KR. JONATHAN SHOEBOTHAM WOODARD, HALL & PRIMM 16 4700 TEXAS COMMERCE TOWER HOUSTON, TEXAS 77002 17 MR. TANNER1T. HUNT, JR. 18 MS. CHERYL D. OLESEN MR. WALTER CRAWFORD 19 MR. MARK FREEMAN KELLS, PEYTON, BEARD, GREENBERG, 20 HUNT (. CRAWFORD P. O. BOX 3708 21 BEAUMONT, TEXAS 77056 22 ALSO PRESENT: 23 MR. WILLIAM PAPAGFORCE, CORPORATE 24 REPRESENTATIVE FOR THE MONSANTO CHEMICAL COMPANY. 25 CC 1 INDEX 2 3 4 WITNESS: DR. PAUL L. WRIGHT 5 SHOWING OF VIDEO DEPOSITION READING FROM VIDEO DEPOSITION 6 PAGE 1983 1992 7 8 WITNESS: DR. WARD R. RICHTER 9 SHOWING OF VIDEO DEPOSITION READING FROM VIDEO DEPOSITION 10 PAGE 2032 2047 11 iI 12 I i I' I 13 14 15 16 17 18 19 20 21 22 23 24 25 CC ;-------- --- ~ TW a 1 of Dr. George J. Levisksas. 2 THE COURT: Who do you have next? 3 MR. JONES: Your Honor, the defendant 4 will make its offer in its case in chief. 5 THE COURT: Thank you. Who do you have 6 next? 7 MR. POHL: With that, Your Honor, at 8 this time we call Dr. Paul L. Wright by 9 video deposition. 10 : j .THE COURT: Do you have additional 11 objections to make or do you make the same 12 objections? ! I 1jj 1 i:; 13 ' MR. JONES: Yes, Your Honor, we do. 14 Yesterday you stated, Your Honor, that 15 if we had additional objections other than 16 those running objections to make them at the 17 appropriate time and this is one of those 18 times, Your Honor. 19 We would object to the testimony of 20 Paul Wright to the extent that he seeks or 21 seeks to invoke his Fifth Amendment rights 22 under the constitution of the United States 23 on the ground that such testimony is 24 irrelevant, it's immaterial, it's 25 inflammatory and its prejudice outweighs its (( --------------- - ry/y 1 probative value. 2 Monsanto specifically objects for the 3 reason that there is no adverse inference 4 that can be drawn from such invocation of 5 the Fifth Amendment, rights to the Defendant 6 Monsanto. And, therefore, the testimony is 7 irrelevant. 8 No adverse inference can be drawn for a 9 couple of reasons, Your Honor. Number one, 10 the, witness was not an employee of Monsanto 11 at t;he time 1of the deposition. Monsanto did 12 not control' or influence him or could 13 influence him in any way. He was 14 represented by counsel at the deposition. 15 And, in fact, I as counsel for Monsanto 16 Company specifically objected to his taking 17 the Fifth Amendment and requested that he 18 answer the questions. 19 THE COURT: Let's not argue your 20 objections. Just make them. 21 MR. JONES: All right, Your Honor. 22 That's the first objection, Your Honor. 23 The second objection that we have to 24 the testimony is that there is no 25 substantial independent evidence to support cc --------- - : : nnnr 1 the inference which the plaintiffs seek to 2 draw; that being, that the invocation of the 3 Fifth Amendment by Paul Wright, which they 4 are seeking to draw, is not that he may have 5 committed a crime but the fact that Monsanto 6 knew that he committed a crime or alleged or 7 knew of the alleged deficiencies of IBT. 8 Your Honor, since there is no 9 independent corroborating evidence on that 10 point, under the authority of the United 11 States versus James, that testimony should r' 12 be excluded. 13 But even if they did have corroborating 14 evidence. Your Honor, they have got to also 15 show that the inference that they draw is 16 more probable than any other inference and 17 that they haven't done. 18 We would also object to the testimony 19 on the ground that Paul Wright's knowledge, 20 whatever it may be, cannot be imputed to 21 Monsanto because if, in fact, there were 22 deficiencies at IBT and if, in fact, he knew 23 of those deficiencies, he didn't tell them 24 to Monsanto. And under case law. Your 25 Honor, if an employee acts adverse to the (( ------------- 1981 1 interest of its employer -- 2 THE COURT: Let's net argue. 3 HR. JONES: Okay, Your Honor. 4 Your Honor, we'd also in that case, 5 what we would like to do is just refer to 6 the Court the brief that we filed in support 7 of the motion in limine which contains many 8 of these objections. And we would request 9 that the deposition testimony be excluded. 10 MS. BAKER: Could I be heard just for 11 the record? 12 THE COURT: Yes. 13 MS. BAKER: And rely for our part on 14 our briefs filed with the Court and on the 15 fact that a lot of cases represented by 16 United States versus James has been 17 overruled by the United States Supreme 18 Court. Thank you. 19 THE COURT: The Court overrules the 20 additional objections as well as the 21 original objections and gives counsel a 22 running objection to all of these matters 23 and deny the request. 24 All right. Let's proceed. 25 MR. JONES: Your Honor, may I state one 1( -- ----- :----- ----------------------------- I7W7 1 additional thing and then we can go on with 2 the deposition. 3 Hay we request an instruction from the 4 Court to the jury that no adverse inference 5 may be drawn against Monsanto Company as a 6 result of this testimony for the reasons 7 that we stated earlier? 8 MR. POKL: Your Honor, I would like to 9 be heard on that. 10 , THE COURT: Yes. 11 MR. POHL: Your Honor, I don't want to 12 engage in argument, but the fact, the 13 evidence already shows from Monsanto's 14 witnesses that Dr. Wright was hired back by 15 Monsanto at Monsanto's request. 16 He came back in a high management 17 position, that after he came back, he 18 continued to coordinate with IBT. We have v. 19 read to the jury this very morning documents 20 that Paul Wright had knowledge of and even 21 Manual Rhame, one of Monsanto's current 2 2 employees, testified that he personally told 23 Dr. Wright about these deficiencies that 24 we're going to detail a little bit later in 25 this case. (( ------------ ;--------- --------- TSFJ 1 THE COURT: All right. The Court will 2 ^instruct the jury that this testimony is 3 being offered for the purpose of showing the 4 knowledge, if any, on the part of Monsanto. 5 And Monsanto, being a corporation, of 6 course, it acts through agents, servants and 7 employees. And the jury may give such 8 circumstantial weight or value to the 9 evidence as they consider it is entitled to. 10 Now, on the question of knowledge of 11 Monsanto. 12 All right. You may proceed. 13 MR. POHL: We are ready to proceed, 1 4 Your Honor. 15 THE COURT: All right . 16 17 (WHEREUPON THE FOLLOWING PORTIONS OF THE 18 VIDEO DEPOSITION WERE SHOWN TO THE JURY.) 19 20 Raise your right hand. Do you solemnly 21 swear that the testimony you are about to give 22 will be the truth, the whole truth and nothing 23 but the truth so help you God? 24 A I do. 25 Q Dr. Wright, ray name is Kike Pohl. As you C( 1984 1 have just heard, I'm one of the attorneys for the 2 plaintiffs; that is, the parties who have brought 3 this civil lawsuit. 4 We are here today to ask you a number of 5 questions. Before we start those questions, let 6 me say first that the plaintiffs are calling you 7 as an adverse witness in that you were employed 8 by both by IBT and Monsanto. 9 Let me begin your deposition by asking you 10 to state for the Court and jury your full name. 11 A I am Paul Lee Wright. 12 Q If at any time during the course of the 13 deposition you d o n 't understand one of my 14 questions because I speak too softly, because I'm 15 not careful in the way I worded the question, 16 because it is somehow confusing to you or because 17 there is some distraction in the room, I would 18 appreciate, your stopping me and asking me to 19 repeat the question or to rephrase the question 20 so that we can be very clear that you understand 21 each and every question. 2 2 Can we have that agreement? 23 A I will do my best. 24 Q And you understand, Dr. Wright, that this 25 deposition, even though we are here in rather ( 198 5 1 informal proceedings, can be used at the time of 2 trial; that is, we can show this videotape or 3 read the question and answers or any part thereof 4 to the Court and jury? 5 A That's my understanding. 6 Q And you understand that you have just been 7 sworn by the court reporter? 8 A Yes, I do. 9 Q And you understand that that meansthat you 10 have been sworn,to tell thetruth and the whole 11 truth just as if you were sworn on the witness 12 stand in the courtroom before the jury? 13 A I understand that. 14 Q And in response to each of my questions, I 15 would like you to give me the full and complete 16 and. truthful answer to each question, okay? 17 A All right. 18 Q And in what year did you obtain your Ph.D.7 19 A In 1961. 20 Q When were you first employed by Monsanto? 21 A In 1965. 22 Q When were you first employed by Industrial 23 Biotest Laboratories, Inc.? 24 A In 1971. 25 Q When you were employed by IBT. wh^r .->- c -------------------- - - -- ---------- ;nnn 1 job title? 2 A I believe it was manager.of toxicology. 3 Q And when did your employment with IBT 4 terminate? 5 A In November of 1972. 6 Q Did you then return to employment with 7 Monsanto? 8 A Yes, I did. 9 Q And what was the first day that you 10 recommenced your employment with Monsanto? 11 A I believe it was November 1, 1972. 12 Q What was your job title at Monsanto when you 13 became re-employed by Monsanto? 14 A It, again, was manager of toxicology. 15 Q And you worked here in St. Louis in the 16 offices of Monsanto? 17 A Yes, I did. 18 Q You were criminally indicted; is that 19 correct? 20 A That's correct. 2 1 Q All right. And do you recall when you were 22 indicted? 23 A No, I don't. I believe it was in 1982. 24 0 After the indictment was handed down, you 25 ultimately went through a criminal trial, did you C ...... ..... -- ------ -- -- ry"H7 1 not? 2 A Yes, I did. ) 3 Q And did you have anattorney representing 4 you in that criminal trial? 5 A Yes, I did. 6 Q What was that lawyer's name? 7 A The lead lawyer was Hr. James Robertson of 8 the Wilmer, Cutler (, Pickering firm. 9 Q How many other attorneys, if any, assisted 10 in your representation during the course of those 11 criminal proceedings? i2 A There were two. 13 Q Were all three of those lawyers with the 14 Wilmer, Cutler & Pickering law firm? 15 A Yes, they were, as far as I know. 16 Q And you understood that law firm to be out 17 of Washington, D.C.? 18 A Yes, it was. 19 Q The criminal trial took place in Chicago, 20 did it not? 21 A Yes, it did. 22 Q Did you alsohave local attorneys 23 representing you in Chicago? 24 A Well, there was a firm Hapfin 4 Hapfin and 25 apparently was involved in the firm but they did Cc -- ------------ --------------------- - : T W tt 1 ; not represent me personally, as far as I know. 2 Q How long did the trial last? 3 A I believe about seven months. 4 Q And you were tried along with Dr. Keplinger 5 and a man named James Plant? 6 A That's correct. 7 Q And a Dr. Joe Keplinger did not complete the 8 trial because of physical illness; is that 9 correct? 10 A That's correct. 11 Q And so far as you understand, the trial as 12 to Dr. Keplinger has never been completed; is 13 that correct? 14 A I have no knowledge. 15 Q At the conclusion of the trial, were you 16 convicted? 17 A Yes, I was. 18 Q And were you sentenced by the judge? 19 A Yes, I was. 20 Q Did you take an appeal from that conviction? 21 A Yes, I did. 22 Q And was the conviction affirmed? 23 A Y e s , i t was. 24 0 I want to show you a document which 1 have 25 obtained from the district courts of Chicago 4. TFB 1 which is your indictment and ask you first, if 2 you have ever before looked at the grand jury's 3 indictment as it pertains to you, have you? 4 5 (Whereupon the video deposition was interrupted.) 6 7 THE COURT: Do you need to go into this 8 much detail? 9 10 (Video resumed.) 11 A Yes, I have seen the indictment. I don't 12 know the document you have. 13 14 (Whereupon the video deposition was interrupted.) 15 16 THE COURT: Is it necessary to go into 17 this much detail? 18 MR. MUSSLEWHITE: We can stop, Your 19 Honor -- 20 THE COURT: Can you offer the rest of 21 it by Q4A? 2 2 MR. MUSSLEWHITE: Just want to go over 23 one question, Your Honor. 24 MR. POHL: If we can have about two 25 more minutes then we are going to offer it C ------------- ------------- 1^90 1 by Q&A. 2 THE COURT: All right. Make it roll 3 then. 4 5 (Video deposition resumed.) 6 Q Let me show this to you and your lawyer. 7 This is a certified copy which we obtained from 8 the United States District, the Northern District 9 of Illinois and pass it to you. Take a moment to 10 look at it and just identify it for the record as 11 to whether or not it*s the indictment? 12 Does that appear to be the indictment? 13 A It appears to be, but I cannot -- am not 14 totally certain that that's the document at this 15 point in time. 16 Q But to the best of your knowledge today, 17 that appears to you to be a true and accurate 18 copy of the indictment that you were faced with? 19 A That is my assumption. 20 Q I want to ask you a few questions, Dr. 21 Wright, about the attorneys' fees associated with 22 your criminal trial -23 24 (Whereupon the video deposition was interrupted.) 25 THE COURT: Let's don't go back into CC TJ9T 1 that. Let's don't go back into the attorney 2 fees. Just go into details that are just, 3 thread bare, you've just worn it thread 4 bare. Get to the testimony that you want to 5 ask him about concerning his test, I suppose 6 and -- see if you can do that. 7 MR. MUSSLEWHITE: Can you do it to the 8 first question on there -- okay. 9 10 (Video deposition resumed.) 11 12 Q There was a manager of toxicology for IBT 13 and also there is a manager for toxicology for 14 Monsanto at a later point in time. You knew that 15 the United States Government and possibly others 16 might receive copies of the conclusions of the 17 studies that were being conducted at IBT, on 18 Monsanto's Aroclor products, did you not? 19 A On my attorney's advice, I hereby invoke the 20 right secured to me by the Fifth and Fou rteen th 21 Amendments to the U.S. Constitution and 22 respectively refuse to answer that question on 23 the grounds that any information -24 25 ( Whereupon t h e vi deo d e p o s i t i o n j> C ------------------------- ~ T9S I 1 THE COURT: What is the necessity of 2 offering this? 3 MR. KUSSLEWHITE: Your Honor, there's 4 about only eight questions that we have that 5 go into the -- 6 THE COURT: Well, let's get to the 7 eight questions then. 8 HR. MUSSLEWHITE: We will stop that and 9 read them. 10 THE COURT: All right. 11 MR. POHL: If you will turn to Page 31, 12 line 19, I will ask the question. You can 13 give the answer. 14 MR. MUSSLEWHITE: Okay. 15 16 (Reading from video deposition) 17 Q Dr. Wright, is it true that the result of 18 IBT's high mortality rate in connection with 19 Monsanto's Aroclor study and the practice of 20 substituting animals during the course of such 21 studies cause the toxic effects of Monsanto's 22 Aroclor studies to be seriously understated? 23 A On my attorney's advice, I hereby invoke the 24 rights secured to me by the Fifth and Fourteenth 25 Amendments to the U.S. Constitution and C ---- 1 respectfully refuse to answer that question on 2 the grounds that any information I give in 3 response may tend to incriminate me. 4 (End of reading) 5 6 HR. POHL: Page 33, line 12. 7 8 (Reading from video deposition) 9 Q Dr. Wright, is it true that the reports of 10 the conclusions, reached in connection with the 11 IBT Aroclor studies were altered several times at 12 Monsanto's request? 13 A On my attorney's advice I hereby invoke the 14 rights secured to me by the Fifth and the -- 15 (End of reading) 16 17 THE COURT: If he is going to invoke 18 the Fifth Amendment, all of these w i l l -- 19 there's no need of offering them. 20 MR. MUSSLEWHITE: Your Honor, our 21 purpose, if I may say so, is to show the 22 questions -- the information we tried to get 23 from this witness and if you will -- I'll -- 24 we'll stop reading the Fifth Amendment and 25 just read the questions. C( 199 4 1 THE COURT: Did you not get the 2 information from other witnesses? 3 HR- POHL: Your Honor, this is the 4 witness that has the most direct knowledge 5 both from the point of view of IBT and 6 Monsanto. 7 THE COURT: Don't you think the Court 8 knows that? It's absolutely a waste of time 9 to ask a question and then to have him 10 invoke his Fifth Amendment right. That 11 doesn't add anything to the testimony. 12 MR. POHL: We want to show the jury, 13 Your Honor, that we attempted to go to the 14 one person from both Monsanto and IBT who 15 had the nost -16 THE COURT: The Court is reversing its 17 rulings. We will sustain the, defendant's 18 objection and we will grant his request to 19 suppress this deposition of Mr. Wright's. 20 A11 right. 2 1 MR. JONES: Your Honor, in light of the 22 Court's recent ruling here, we would request 23 that the jury be instructed to disregard the 24 previous testimony. 25 THE COURT: Yes, the Court will request C ~ '' I9yb 1 the jury to disregard any portion of Mr. 2 Wright's testimony that has been read. All 3 right. 4 HR. POHL: Your Honor, at this time we 5 would -- 6 THE COURT: Do not give it any 7 consideration or affect to Dr. Wright's 8 deposition in regard to your deliberation as 9 a jury in this case. Do not give it any 10 affect or consideration in your rulings. 11 All right. 12 MR. POHL: Your Honor, we would read 13 from the deposition and offer a summary of 14 Dan R. Bishop taken June 29, 1987. And I 15 will read a summary and there are some 16 questions and answers and I would ask Mr. 17 Musslewhite to respond to the questions. 18 THE COURT: All right. What witness is 19 this? 20 MR. MUSSLEWHITE: This is the last one 21 that I mentioned to Your Honor of the last 22 witness we have that was Monsanto's -23 public relations man. It's a short offer. 24 THE COURT: You may proceed. 25 MR. POHL: Your Honor, in order to show