Document 4JZK0yNaBVNGpMLJ0vRz9yVRQ

IN THE CIRCUIT COURT OP THE CITY OF ST. LOUIS STATE OF MISSOURI JUDITH BECHTOLD, et al, Plaintiffs, vs. MONSANTO COMPANY, et al, Defendants ) ) ) ) ) Cause No. 922-00911 ) ) ) ) Deposition of R. EMMETT KELLY, M.D. On behalf of Plaintiffs May 31, 1994 WALLER REPORTING, INC. 515 Olive Street, Ste. 1506 New Orleans, MO 63101 (314) 621-2571 TOWOLDMONOQ13211 IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS STATE OF MISSOURI JUDITH BECHTOLD, et al, Plaintiffs, vs. MONSANTO COMPANY, et al, Defendants. ) ) ) ) ) Cause No. 922-00911 ) ) > ) DEPOSITION OF R. EMMETT KELLY, M.D., produced, sworn and examined on behalf of the Plaintiffs, May 31, 1994, between the hours of eight o'clock in the forenoon and five o'clock in the afternoon of that day, at the offices of Wilburn, Suggs & Watkins, 1221 Locust St., Ste. 500, St. Louis, MO, before TOD MINNIGERODE, a Certified Shorthand Reporter and a Notary Public within and for the State of Missouri. APPEARANCES The Plaintiffs were represented by Mr. Joseph A. Race of the Murray Law Firm, 909 Poydras St., Ste. 2550, New Orleans, LA 70112. The Defendant Monsanto was represented by Ms. Carol Rutter, of the law firm of Husch and Eppenberger, 100 N. Broadway, St. Louis, MO 63102. The Defendant Westinghouse was represented by Mr. Theodore H. Lucas and Mr. Richard Wunderlich of the law firm of Lewis, Rice & Fingersh, 500 N. Broadway, Ste. 2000, St. Louis, MO 63102. TOWOLDMONOQ13212 3 1 IT IS HEREBY STIPULATED AND AGREED by and 2 between Counsel for the Plaintiff and Counsel for the 3 Defendant, that this deposition may be taken in shorthand 4 by TOD MINNIGERODE, a Certified Shorthand Reporter and 5 Notary Public, and afterwards transcribed into 6 typewriting, and to be signed by the witness by agreement 7 of counsel and consent of the witness. 8 9 10 11 o-O-o 12 13 14 ROBERT EMMET KELLY, M.D., 15 of lawful age, being produced, sworn and examined on the 16 part of the Plaintiffs, deposes and says t 17 EXAMINATION 18 QUESTIONS BY MR. RACE: 19 Q. Could you state your name for the record, 20 please? 21 A. Robert Emmett Kelly, M.D. 22 Q. Okay. And Dr. Kelly, it's my understanding 23 that you have been appointed as a designated corporate 24 representative for this deposition for Monsanto, is that 25 correct? TOWOLDMONOOI3213 4 I A. That is correct. ........................... 2 Q. Now you started working for Monsanto in the 3 thirties, is that correct? 4 A. Yes, January of 1936. 5 Q. Okay. And you are a medical doctor, correct? 6 A. That is correct. 7 Q. Your specialty is internal medicine and 8 occupational medicine? 9 A. And occupational medicine. 10 Q. And you worked for Monsanto until your 11 retirement in what year? 12 A. November of 1974. 13 Q. During your employment with Monsanto what was 14 your last position held with Monsanto? 15 A. The last position was director of the central 16 medical department. 17 Q. And how long had you held that position? 18 A. Since 1946, yes. 19 Q. Now what does the director of the medical 20 department do? 21 A. He supervised, he had several duties. He had 22 to supervise the medical installations in all our plants 23 and laboratories. He had to select physicians, he had to 24 see that the physicians were doing their job, carrying out 25 preventive and therapeutic aspects of industrial medicine. TOWOLDMONOQ13214 5 1 He had to develop toxicological information. He had the 2 responsibility of disseminating such toxicological 3 information to customers, government agencies, any other 4 physicians or individuals that asked about toxicity of our 5 products. He had to write a -- formulate cautionary 6 material both for labels and for our bulletins of various 7 sorts, and he also had to develop an industrial hygiene 8 section. 9 Q. Now you -- One of the functions was to gather 10 toxicological information, correct? 11 A. That is correct * 12 Q. And then disseminate that information to 13 government and customers, correct? 14 A. That is correct. 15 Q. Monsanto had appointed or hired its first 16 toxicologist in 1950, is that correct? 17 A. That is correct. 18 Q. Actually it was a little bit past 1950, it 19 was the early fifties, correct? 20 A. Yes. 21 Q, There was no toxicologist on staff prior to 22 1950, is that correct? 23 A. That's correct. 24 Q. Monsanto did not have a toxicological 25 in-house testing lab until 1974, is that correct? TOWOLDMONOOI3215 6 1 ........... A............ '75 . ............. ; : " TM.. ...................-- ^ 2 Q. '75? 3 A. We started our plans in 1970, late '73, '74; 4 but it did not come to fruition until I believe '75 or the 5 first part of '76 after I left. 6 Q. How many products did Monsanto manufacture 7 when you were first employed by Monsanto in 1936? 8 MS. RUTTER: Objection, Counsel, I have 9 allowed you some leeway inquiring about Dr. Kelly's 10 personal background. This is a corporate deposition, you 11 have noticed topics for the corporate deposition of 12 Monsanto and you are now straying into areas that are not 13 part of the topics noticed and I object to that. 14 MR. LUCAS: Westinghouse joins the objection. 15 MS. RUTTER: If you wish to take Dr. Kelly's 16 deposition personally if time permits under the case 17 management order that can be discussed at a later time. 18 You chose to proceed in this fashion in a corporate 19 deposition, you've got topics in the deposition notice, 20 Dr. Kelly had been designated to speak on topics 1, 4, 6, 21 7 and 9. 22 MR. RACE: Okay, Counsel. 23 Q. (By Mr. Race) So prior to 1975 all testing, 24 medical testing or animal testing was done through private 25 labs, is that correct? TOWOLDMONOQ13216 7 1 A. Yes, sir, either academic or commercial 2 laboratories. 3 Q. You used that information to disseminate to 4 the government, correct? 5 A. Yes, sir. 6 Q. Okay. Why was an in-house lab not instituted 7 prior to 1975? 8 A. Because we did not have a through-put of 9 compounds that would justify a laboratory of our own with 10 the specialists we would need. 11 Q. What do you mean a through-put of compounds? 12 A. Well, we didn't have the volume of work to do 13 that would support a laboratory with a pathologist, with 14 biochemists, with a host of specialists that you need. 15 You just don't have one worker in a laboratory. 16 Q. How big of a lab was actually created in 17 1975? 18 MS. RUTTER: Objection, that's beyond -- Dr. 19 Kelly retired as he told you in 1974, that's beyond the 20 scope of your designation and what he's here to testify 21 to. 22 THE WITNESS: I can't hear you, Carol. 23 MS. RUTTER: I just made an objection for the 24 record that he's asking you a question in 1975 after you 25 retired from Monsanto. TOWOLDMONOOI3217 8 1 MR. LUCASt 1 join in the objection. 2 MR. RACEt For the record every time she 3 objects you join unless otherwise stated? 4 MR. LUCAS} That's fine. 5 Q. (By Mr. Race) How large a lab was planned 6 when you were director? 7 A. I can't tell you the square footage of the 8 laboratory; but we had planned about eight scientists and 9 about the same number of auxiliary help. 10 Q. So it would be staffed by a total of sixteen 11 personnel? 12 A. Give or take, yes, a few. 13 Q. What occurred in 1973 that made it necessary 14 for you to plan for the development of a lab? 15 A. 1 think it was just the increase in volume 16 that we had, that we had anticipated. We were rather 17 heavy in agricultural chemicals that the -- and the 18 demands by the government for more extensive testing to be 19 done to each product. 20 Q. Was it a fact that Monsanto started to 21 produce a greater variety of chemicals in the seventies 22 which required the development or private building of a 23 lab or was it a matter that the government required more 24 testing? 25 MS, RUTTERj Counsel, for the record I'm TOWOLDMONOOI3218 9 1 going to object, you're straying far afield again from 2 your corporate designations. Question No. 9 you ask about 3 acute and chronic toxicity studies of PCB's, starting in 4 1938 to present; while I agree that you are asking 5 questions about toxicology you are straying far afield 6 from your designated topic and since you have chosen to 7 choose by corporate deposition on designated topics I 8 would ask you to confine your questions to those 9 designated topics. 10 MR. RACE: Counsel, also in the spirit of 11 openness I'll try to do this corporate deposition in a 12 general way; the representations made to the government 13 and what I am trying to ascertain is how he gathered that 14 information. He said he conveyed information to the 15 government and I am trying to establish the circumstances 16 in which he gathered the information to disseminate to the 17 government. 18 MS. RUTTER: My objection right now is your 19 question does not pertain to PCB's, you're asking him 20 broad, wide-ranging questions. 21 MR. RACE: Are you instructing the witness 22 not to answer? 23 MS. RUTTER: You have a question, one, 24 Monsanto'8 statements to government agencies regarding the 25 safety of the PCB's, you have a question, nine, acute and TOWOLDMONOOI3219 10 1 chronic toxicity study of PCB's starting in 1938 to 2 present, including those studies directed to Monsanto. 3 MR. RACE: Now are you going to instruct the 4 witness not to answer or are you going to just let me 5 venture into this? 6 MS. RUTTER: What was your last question? 7 MR. RACE: I wanted to know what 8 circumstances changed that they started to plan for a lab. 9 MS. RUTTER: If you're representing that you 10 do not intend to dwell incessantly on products other than 11 PCB's/ but merely ask a few more preliminary questions and 12 move on to the designated topics I'm going to listen and 13 consider question by question; but I intend to hold you to 14 these topics that you designated. 15 MR. RACE: Fine. 16 Q. (By Mr. Race) Could answer the question for 17 me? 18 MS. RUTTER: Do you remember the question. 19 Dr. Kelly, or do you want me to have it read back? 20 MR. RACE: Maybe I'll just rephrase. 21 Q. (By Mr. Race) What occurred in the seventies 22 that necessitated developing an in-house lab, was it a 23 matter of Monsanto producing more chemicals or the 24 government requiring more testing? 25 A. I think it -- First of all, it wasn't 1970, TOWOLDMONOOI3220 11 1 you mentioned 197 0 j it was 1973. ...... 2 Q. Correct, okay. 3 A. No. 2, we went into the field where there 4 [were regulations of the government, we were going into 5 agricultural chemicals, herbicides, pesticides, and those 6 required more extensive testing than industrial chemicals 7 [were -- than we did on industrial chemicals. So I think 8 it was we went into a field where the government wanted 9 [more testing. 10 Q. So Monsanto started to get into the field of 11 herbicides and pesticides in the seventies, is that what 12 you're telling me? 13 A. Yes, that is correct. 14 Q. In the in-house lab were there any tests 15 conducted on PCB's, any studies conducted on PCB's? 16 MS, RUTTERs Objection, I believe that's 17 beyond the scope of this witness' time. 18 A. We did not have a lab. We did not have a 19 laboratory until I left. 20 Q. (By Mr. Race) So you don't know? 21 A. No, I don't know. 22 Q. Was it anticipated that any animal studies 23 would have been done in this laboratory? 24 A. Oh, yes. 25 Q. Did you anticipate doing studies on PCB's in TOWOLDMONOOI3221 12 1 these laboratories? 2 MS. RUTTER: Objection/ calls for speculation 3 and conjecture. 4 Q. (By Mr. Race) Subject to the objection can 5 you answer? 6 A. No. I didn't think we needed any more 7 toxicological information. We had run testing at 8 Industrial Bio-test, rather extensive testing. 9 Q. Okay. When did Monsanto first use IBT? 10 A. Sometime in the fifties. 11 Q. Had they used IBT exclusively for their 12 testing of PCB's? 13 A. No, sir, we used -- We had acute studies 14 carried on by the Younger laboratories of Scientific 15 Associates Laboratories in St. Louis, we had inhalation 16 studies carried on in 1954 at the University of 17 Cincinnati, the Kettering laboratory. 18 Q. What year was that the inhalation studies? 19 A. 1954. 20 Q. Was that the Treon studies? 21 A. Yes. 22 Q. And acute studies were conducted by whom? 23 A. There were two groups, Scientific Associates, 24 and Younger Laboratories, Y-o-u-n-g-e-r. 25 Q. And what years were those acute studies TOWOLDMONOOI3222 13 1 conducted by.Sclenti f fc and Younger? ................. .................. .................. i 2 A. From '38 on, we also had some work done at 3 Drinker's laboratory at Harvard School of Public Health in 4 '37, I believe. 5 0> So the scientific was in 19 38 until when? 6 A. They started off with one group, Scientific 7 Associates, Younger split off; so then there was 8 Scientific Associates and Younger Labs, and we used that 9 for intervals all the way for our acute package of 10 toxicological testings, either one of them. But towards 11 the latter part of the years we gravitated more toward 12 Younger and that kept up until I left. We were still 13 doing it in 1974. 14 Q. How many tests were conducted, acute toxicity 15 tests on PCB's? 16 A. Gee, I'd say -- this is on rats, pretty much 17 of a guess, around fifty. 18 Q. The first chronic toxicity studies were 19 conducted on behalf of Monsanto by IBT, is that correct? 20 A. Well, no? I think it would -- the tests done 21 by Treon at the Kettering laboratory were chronic 22 inhalation work, that was 120 days, which at that time was 23 considered a chronic study. First extensive oral feeding 24 on two species of animals was done at IBT. 25 Q. The IBT tests were designed to go for two TOWOLDMONOOI3223 14 years, is that correct? A. Yes, two years in rats, two years in -- two years of dogs also. Q. Two year8 in rats and two years in dogs? A. That's correct. Q. And by today's standards two years is considered an acceptable length of time for a chronic study, is that correct? A. Yes, and rats will -- If you ever studied chronic toxicity in dogs for various purposes, that's seven years. Q. So with IBT the rat study was considered a chronic study and the dog study would not have been considered a chronic study? A. Well, it was in 1968 > that's what the government asked for for food additives. They considered it a chronic study. Q. What is it the advantage of a chronic study over an acute study? A. Well, the advantage is that in an acute study you are dealing with a one shot approach, whether that one shot is divide a dose over two or three days, but in a chronic you are trying to find out if a little bit of the material is absorbed every day it acts on the various systems of the body in repeated doses. TOWOLDMONOOI3224 15 1i Q. Okay. With an acute study the animals are 2 sacrificed shortly after the exposure, is that the general 3 rule? 4 A. Well, it all depends if you're developing an 5 LD-50, which is a benchmark for acute toxicity oral 6 studies. You feed them until you get a dose that will 7 kill half the animals, and usually in an acute study, you 8 do not run pathological testing on the organs, as you do 9 in a chronic study. 10 Q. So on acute study once the animals die you 11 just count the numbers and once half of them is dead you 12 take and note what the doses had been at that level? 13 A. Well, you do a gross examination of the 14 organs, they see if the liver is discolored, they see if 15 the liver is changed in weight, if it were swollen; but 16 there really isn't long enough period of time to develop 17 pathological changes in the organs. 18 Q. So acute studies are not designed to be 19 utilized with pathological investigation, correct? 20 MS. RUTTERt Objection, miBcharacterizes 21 prior testimony. 22 A. Well, it's -- an acute study is that where 23 they find out what it takes to kill an animal in a short 24 period of time, short period of testing, and you -- There 25 are certain things you can find out by a gross TOWOLDMONOOI3225 16 1 pathological examination that you don't need to run 2 microscopic sections on. There is as a rule you do not do 3 microscopic pathology on acute testing. 4 Q. (By Mr. Race) Now with the Treon studies 5 those animals were sacrificed after 120 days, is that 6 correct? 7 A. That's correct. 8 Q. Doctor, changing just a 1ittle bit here, what 9 are the known carcinogens? 10 A. What are the known carcinogens? 11 MS. RUTTER: Objection, what topic? 12 MR. RACE: Advertised health effects of the 13 PCB's and related compounds. 14 MS. RUTTER: Prior to 1970 as you designated. 15 MR. RACE: Uh-huh. 16 MS. RUTTER: Well, that's not what your 17 question was. If you want to rephrase it to ask him about 18 the adverse health effects of PCB's prior to 1970 that's 19 one question. 20 MR. RACEt And related compounds. 21 Q. (By Mr. Race) Let me ask you this t Is 22 dioxin a carcinogen? 23 MS. RUTTER: Objection, you're asking him 24 about today; if you want to ask him if dioxin was a 25 careinogen during the time that he worked for Monsanto TOWOLDMONOOI3226 17 1 through the end of 1974. 2 MR. RACEi I assume if something's going to 3 be a carcinogen before '70 or after '70 then that fact 4 doesn't change. If it was carcinogen before 1970 it will 5 be a carcinogen after 1970; that doesn't change. 6 MS. RUTTER: No, but Counsel, it might 7 change -- I don't know what was known before 1974 and what 8 wasn't. You may ask this witness what he knows. 9 MS. RUTTERt I have a strict liability claim. 10 right, my strict liability claim says is anything 11 defective or unreasonably dangerousj so therefore it's the 12 condition of the products that exists, not the knowledge. 13 I am asking him what the carcinogenic effect of dioxin or 14 its careinogenic properties of dioxin prior to 1970, so -15 and that line of thinking I believe that I am following 16 the parameters of the corporate deposition. 17 MS. RUTTER: You just rephrased your question 18 substantially from the prior question that you had on the 19 table. 20 MR. RACE: And I am trying to work with you. 21 Counsel. 22 MS. RUTTER: Okay, go ahead. You're going to 23 need to repeat it for him. 24 Q. (By Mr. Race) Is dioxin a carcinogen? 25 MS. RUTTER: Objection, you are asking him if TOWOLDMONOOI3227 18 1 dioxin is a carcinogen today. You may ask him if dioxin 2 was known to be a careinogen. 3 MR. RACE: Known to be is not relevant. 4 Counsel. I have a strict products liability claim, 5 knowledge is not an issue. What it is in fact is the 6 issue. 7 MS. RUTTER: Counsel, what relevance -8 Q. (By Mr. Race) Doctor, was dioxin a 9 carcinogen in 1970? 10 A. I don't know if it was a considered a 11 carcinogen in 1970. 12 Q. Is it considered a carcinogen today? 13 MS. RUTTER: Objection, the witness is 14 instructed not to answer. 15 Q. (By Mr. Race) In 1970 was there individuals 16 that considered dioxin to be a carcinogen? 17 MS. RUTTER: You may answer that if you know. 18 A. Yes, there were. 19 Q. (By Mr. Race) And there were those that 20 considered dioxin not to be a carcinogen, is that correct? 21 A. That * s correct. 22 Q. So in the scientific community you do have 23 different schools of thought on the carcinogenic 24 properties of chemicals, is that correct? 25 A. Thats correct. TOWOLDMONOOI3228 19 1 Q. In 1970 were you of the opinion that dioxin 2 was a carcinogen? 3 A. I don't believe I had an opinion in 1970. 4 Q. Did you have an opinion before 1974? 5 A, No, I did not Whether or not it was 6 considered -- I considered it to be a carcinogen or a 7 promoter, I just don't know what my opinion was in 1974. 8 Q. You say a promoter; what do you mean by a 9 promoter? 10 A. That's a compound that will act on a 11 condition of the body to enhance a carcinogenic effect of 12 another compound. 13 Q. Okay. And this is opposed to an initiator? 14 A. Yes. 15 Q. And an initiator starts it and a promoter 16 helps it go along? 17 A. That's right, an initiator doesn't need a 18 promoter, it just keeps going. 19 Q. What was the time of development -- from the 20 time of exposure to the development of clinically 21 detectable cancer? 22 A. What was the time? It varies all over. 23 Q. Could you give me a ballpark? 24 MR. RACEi It's within the scope. 25 MS. RUTTER: It is not within the scope. TOWOLDMONOOI3229 20 1 MR. RACE: It's the testing. Counsel. 2 MS. RUTTER: What designated topic is this 3 question within the scope of? My concern is that you're 4 asking about now, that's one of my concerns. My other 5 concern is that it's not a designated topic, 6 MR. RACE: Acute and chronic toxicity 7 studies, these are the differences. 8 MS. RUTTER: Is there a question on the 9 floor? 10 MR. RACE: Yes. 11 MS. RUTTER: What is the question? 12 MR. RACE: The length of period of time from 13 exposure to a chemical to the development of cancer. 14 MS. RUTTER: To any chemical? 15 MR. RACE: To PCB's. Well, I don't think 16 he's going to say PCB's? he's going to say -- Yes, any 17 chemical, which would form the basis of PCB studies. 18 MS. RUTTER: I don't understand the question, 19 Counsel. 20 MR. RACE: Let's have a break for a second. 21 (Whereupon, a discussion was held off the record.) 22 Q. (By Mr. Race) In 1974 you had an idea of the 23 promoter-initiator relationship in cancers? 24 A. That is correct. 25 Q. And in 1974 when you were medical director TOWOLDMONOOI3230 21 1 choosing these tests you had an idea that the length of 2 time from the time an individual was exposed to a 3 substance to the time that a cancer would be seen or 4 develop, is that correct? 5 A. A little louder and little slower. 6 Q, What was your appreciation of the interval 7 between exposure to a substance and clinically detectable 8 cancer? 9 MS. RUTTER: Objection, overbroad and vague. 10 Q. (By Mr. Race) Okay. Subject to the 11 objection, go ahead and answer if you can. 12 A. I don't think a person can tell. It varies 13 all over the lotj it could vary from five years to thirty 14 years, 15 Q. So you would agree with me that the time 16 between the exposure to a substance and the development of 17 cancer can be rather lengthy, is that correct? 18 A. Yes, it can. 19 Q. And for that reason when looking or 20 completely -- Or strike that. And for that reason in 21 developing tests, animal tests it is desirable to have 22 chronic studies done as those that were done by IBT, is 23 that correct? 24 A. That is correct. 25 Q. It is the chronic studies that will explore TOWOLDMONOOI3231 22 1 the possible carcinogenic properties of a substance rather 2 than the acute studies? 3 A. Yes, sir. 4 Q. And in 1974 the accepted duration for a 5 chronic study was twenty-four months, correct? 6 A. Correct. 7 Q. And the first chronic studies sponsored by 8 Monsanto were the IBT studies? 9 MS. RUTTERt Objection, mischaracterizes 10 prior testimony. 11 Q. (By Mr. Race) Subject to the objection -- 12 A. We considered a chronic study of 120 days by 13 Treon a chronic inhalation study. We were not looking for 14 carcinogenic effects at that time; but the first one, the 15 first two year study that we carried out on an industrial 16 chemical was the IBT studies, we had done work on food 17 additives and work on agricultural chemicals. 18 Q. Chronic animal studiesare considerably more 19 expensive than acute animal studies? 20 A. No question about it. 21 Q. And they are more expensive because the 22 animal has to be kept alive for a longer period of time, 23 correct? 24 A. Yes. 25 Q. And once the animal is sacrificed you have to TOWOLDMONOOI3232 23 1 employ pathologists to examine the organs, is that 2 correct? 3 A. Yes, sir. 4 Q. And that's not true with acute studies; is 5 that correct? 6 A. That is correct * 7 Q. How many animals were within the IBT chronic 8 studies? 9 A. I can't give you the exact figures, they'd be 10 approximations. 11 Q. Okay. 12 A. He had three doseage levels and one control 13 level, these are rats now, for three different compounds, 14 so that's twelve series of animals and probably fifty rats 15 in each one, that would be six hundred rats. 16 Q, Okay. The Treon study, is it not correct, 17 had seventy some rats ? 18 A. No, he had a mixed bag, he had cats, rabbits, 19 a dog, and rats, he had about four different species but 20 not a great number of them and they only ran on two 21 different PCB * s. 22 Q. Which were the two PCB's he ran? 23 A. 1254 and either 1242 or 1248. 24 Q. And in the Treon study did they not note an 25 increase in lung cancer? TOWOLDMONOOI3233 24 A. No, sir, they did not. .................... ..................... Q. Did they have any adverse effect on the Treon studies ? A. Did they have any -- Q. Adverse effect notedon the Treonstudies? A. I didn't hear the last. Q. Adverse effects MS, RUTTER* Did they have any adverse effects in the Treon studies? A. Yes, they had the high doses had some liver involvement. Q. (By Mr. Race) Okay Would it then be systemic, would that be considered a systemic injury? A. Oh, yes. Q. What's your definition ofsystemic as appreciated before 1974? A. Well, systemic means the body as a whole, it doesn't mean that the liver is involved, the kidney's involved, but one of the internal organs of the body is involved. Local action is the action of -- on the skin, but you could get a systemic involvement that will give skin problems. Chloracne is a systemic involvement that involves the skinj an acid burn is a local involvement that involves the skin. Q. But an acid burn is not systemic because it's TOWOLDMONOOI3234 25 1 confined to localized area whereas the chloracne is .......... 2 systemic because it's an indication that other organs in 3 the body are being affected? 4 A. May be affected, may be. 5 Q. Now with the Treon study the liver was 6 affected, correct? 7 A* Yes, sir. 8 Q. What were the effects known to the liver? 9 MS. RUTTERj What were were the effects known 10 to the liver? 11 Q, (By Mr, Race) Noted on the liver, excuse me? 12 A, There was swelling of the liver cells; there 13 was probably some death of some liver cells. I don' t 14 recall the details of this, of the pathology right at the 15 present time. It's forty years ago. 16 Q. Okay. Was 120 days a sufficient period of 17 time for any tumors to develop in the animal studies? 18 A. No, sir. 19 Q. So you would not have found any tumors in the 20 Treon studies because it was only 120 days, is that 21 correct? 22 A. That's fair, yes. 23 Q. In the 1950's were there any chronic studies 24 being conducted on any substances that would last for 25 greater than twenty days which -- TOWOLDMONOOI3235 26 A. Where, in the whole world? ............. Q. That you know of. A. There were some agricultural chemicals, I do not know if that was in the 1950's or later than that, I don't know, but they were being conducted * Q. That would last for a two year period of time, for example? A. That's correct. Q. So there were two year chronic studies being conducted in the fifties? MS. RUTTER: Objection, mischaracterizes his testimony. Listen to his question and then you may answer it. Q. (By Mr. Race) There were in the fifties chronic studies lasting two years, is that correct? A. To the best of my recollection, some agricultural compounds were subjected to two years' testing. Q. Was it part of your responsibility to disseminate information to the government on the environmental aspects of PCB's? MS. RUTTER: Was it part of his responsibilities? MR. RACE: Yes. MS. RUTTER: As medical director? TOWOLDMONOOI3236 27 A. It all depends on what what branch of the.. government you * re talking about. If you're talking about the feds, federal, the government or the state government. Q. (By Mr. Race) The federal government at this point. A. Yes, we did send information to the Food and Drug Administration, to the Department of Agriculture and to Dr, Berger who was the chief scientific advisor to the president sometime in late 169 or 1970. Q, And this -- When I'm questioning you now it is about the environmental impact, the PCB's found in fish and bird life? A. Well, it was toxicological information which bore on the relationship of the environmental contamination. Q. Now can I -- I don't want to misstate anything, so you would disseminate toxicological information to the government and the community at large - A. Well, disseminate is a bad word, I shouldn't have used that. We didn't broadcast information. We made information available to our customers, to the government, people that had something to do with either regulation or had interests in the compound. We sent information to doctors who asked for itt but we didn't take an ad in the TOWOLDMONOOI3237 28 1 Business Week and say here is what we found out ......... 2 toxicological-wise on our products. 3 Q. And the toxicological information that you 4 would provide to anybody that asked you would be both in 5 the area of contamination in the environment as well as 6 the effects on humans, is that correct? 7 A* Well, as well as the effects -- 8 Q. On human beings? 9 A. Well, in the first place we did not have any 10 environmental knowledge of any environmental problem until 11 the late sixties; so if we did send out information to 12 people at that time, the -- We sent out the effects of the 13 toxicological work on animals to people who asked for it. 14 The information we sent out on humans was all negative 15 information; we did not have any illnesses in our work, we 16 had no reports of illnesses that workers of our major 17 companies, major customers, so that's what we did. 18 Q. And you knew -- Monsanto had the same policy 19 with respect to providing information about toxicity in 20 the area of the environment as well as animal studies and 21 human injury, is that correct? 22 MS. RUTTERt I object to the vague and 23 confusing form of the question. 24 Q. (By Mr. Race) Do you understand the 25 question. Doctor? TOWOLDMONOOI3238 29 1 A, Not particularly"^........... '.................. '... ... ...'......... "................ . 2 Q. Okay. Then let me rephrase it, please. 3 Monsanto had an open policy to provide information on the 4 environment and PCB * s, correct? 5 A. That's correct 6 Q. And it was the same time type of open policy 7 that they had with respect to supplying information on 8 animal tests and the human toxicity of PCB's, is that 9 correct? 10 A. That's correct. 11 Q. So it was the same open policy for both 12 areas, the environmental area and the occupational 13 medicine area, is that correct? 14 MS. RUTTER: Well, objection, your previous 15 question referred to animal toxicity, you were referring 16 to three areas, not two. 17 Q. (By Mr. Race) Okay. Can you - 18 MS. RUTTERs So 1 object to the confusing 19 form of the question. 20 Q. (By Mr. Race) Now I'll have to repeat it for 21 sure. You had a -- the same policy, Monsanto had one 22 policy to be open, correct? 23 A. Yes. 24 Q. And that policy governed whether it was 25 environmental information being put out, animal studies or TOWOLDMONOOI3239 30 -..... - :- '...'...'.'.1 ..... ~ human injury , that is correct? .............. ....................... .......................... ,2 !3 A. Or lack of human injury. Q. Or lack of human injuries, it was the same 4 policy? ;5 A. Yes, anything we knew we told anybody who 6 asked and we 're very up front with the government on it. 17 Q* Doctor, what's your address please? 18 19 | 10 A. 665 South Skinker, S-k-i-n-k-e-r. Q. S--k-- i-"-n-k-e-r ? A. St. Louis, 63105. , 11 : 12 Q. St. Louis, 63105. Your phone number? A. 314 862-1025. 13 Q. How long have you lived there? j 14 ' 15 A. 22 years. Q. Do you believe it is Monsanto's 16 responsibility to inform both the public and government of 17 any adverse toxicological effects of PCB's? 18 A. I don't know what you mean by the public. 19 What we do, we inform the regulatory -- the government : 20 bodies, we inform the customers and we inform any of the 5 21 medical profession that write us about it. 22 Q. And you would agree with me that Monsanto has 23 the responsibility to inform its customers of the 24 toxicological characteristics of the chemicals j 25 manufactured by Monsanto? TOWOLDMONOOI3240 31 1 MS. RUTTER: Objection. Are you asking him 2 about his opinion about what Monsanto's duties were during 3 the time period he worked with Monsanto through 1974? 4 MR. RACE: Yes. 5 MS. RUTTER: Could you rephrase the question 6 to indicate the time period, please? 7 MR. RACE: Read that back. 8 (Reporter read back from the record as directed: 9 "Q. And you would agree with me that 10 Monsanto has the responsibility to inform its customers of 11 the toxicological characteristics of the chemicals 12 manufactured by Monsanto?") 13 A Yes * 14 Q. (By Mr. Race) Now you said that -- 15 MS. RUTTERr And for the record, Counsel had 16 previously clarified that question to mean that he was 17 asking your opinion while you worked for Monsanto. 18 THE WITNESS: Yes, that's what I thought. 19 MS. RUTTER: All right, good. 20 MR, RACE: Me too, we're on the same page. 21 Carol, you're not far behind; maybe you're just a little 22 bit ahead, I don't know. 23 Q, (By Mr. Race) Now in disseminating 24 information, oh, I'm using that word again. In providing 25 the government with information, okay? TOWOLDMONOOI3241 32 1 A. Yes. 2 Q. About the environment, for example, you 3 testified that you first became aware in 1967 or '68 of 4 the environmental impact of PCB's? 5 A. That's correct. 6 Q, Did you know that PCB's were 7 non-biodegradeable prior to 1967? 8 A, We assumed that they were non-biodegradeable. 9 Q. So you assumed that were they would be. 10 remain in the environment? 11 A. That if they got into a body of water they 12 would be like a piece of gravel at the bottom of the 13 sediment of the water, it would not be absorbed. 14 Q. So you made this assumption that if PCB's got 15 into a body of water it would act like a piece of gravel 16 and fall to the bottom? 17 A. Thats correct. 18 Q. Were you informed otherwise prior to your 19 departure from Monsanto? 20 A. Yes. 21 Q. What were you informed of? 22 A. We were informed that people in Sweden had 23 done work and found out that the material was picked up by 24 shrimp, fish, some avian species, falcons, that somehow or 25 other the material was metabolized by the plankton or the TOWOLDMONOOI3242 33 1 algae and when the shrimp would eat the algae they would 2 develop an accumulation of PCB'st minnows would eat them, 3 when a larger fish would eat the minnow they would 4 accumulate PCB's in their fatty tissue. If along comes a 5 bald eagle and eats the fish he also could pick up PCB's. 6 Q. And in what year were you informed that this 7 was occurring? 8 A. '69 or '70. 9 Q. Did you immediately thereafterinform the 10 United States government or insure that the government, 11 the United States government was also aware of this 12 information? 13 A. Oh, the U.S. government was certainly aware 14 of it. 15 Q, Were any tests -- or strike that. Now you 16 said that your assumption was that this would -- that the 17 assumption was that PCB's were non-biodegradeable, is that 18 correct? 19 A. That's correct. 20 Q. And your assumption was that if it got into a 21 water stream, a body of water it would lay at the bottom 22 of the water like gravel? 23 A. Yes, we had a compound that was insoluble in 24 water, we had a compound that was a non-reactive and we 25 considered it persistent in its present shape. TOWOLDMONOOI3243 34 1 Q. Did you conduct any tests to establish that 2 that would be in fact the reaction of this compound if it 3 reached a body of water? 4 A. 1 myself did not I do not know if some of 5 the other groups of the company had tested. 6 Q. Do you know of any tests as a representative 7 of Monsanto which were conducted to insure that PCB's 8 would not get into the food chain? 9 A. Before 1970, no. 10 Q. Okay. And when did you first become aware or 11 speculate that PCB's was non-biodegradeable? 12 A. Gosh, we -- 13 MS. RUTTER: Counsel, could you define the 14 term non-biodegradeable? 15 MR. RACE: No. 16 MS. RUTTER: Well, I object to the form of 17 the question. 18 MR. RACE: I don't because it doesn't matter 19 how I define it. I'll ask the witness to define it. 20 THE WITNESS: I couldn't hear all the 21 interplay. 22 MR. RACE: She just said she thought I was a 23 great attorney. 24 MS. RUTTER: I objected to the term -- use of 25 the term non-biodegradeable without a definition. I asked TOWOLDMONOOI3244 35 1 him to define non-biodegradeable. 2 THE WITNESS 1 Did he? 3 MS. RUTTERS No, he did not. 4 Q. (By Mr. Race) I said you can do it for me. 5 A. Non-biodegradeable means that the material is 6 not broken down by the organisms or the action of sunlight 7 or the action of other compounds. 8 Q. In other words, its difficult to destroy it, 9 correct? 10 A. That's correct. 11 Q. And it will last in the environment for a 12 long time, is that correct? 13 A. Yes, sir. 14 Q. And when did you believe that that was the 15 characteristics of PCB * s? 16 A. I believed it all the time up till the late 17 sixties. 18 Q. So from 1936 when you started until 1970 that 19 was your belief that PCB's were non-biodegradeable? 20 A. That's correct. 21 Q. And after 1970 when the Swedes found that 22 PCB's were getting into the food chain did Monsanto then 23 conduct any tests? 24 A. Yes, they did. 25 Q. And did those tests reveal not only was it in TOWOLDMONOOI3245 36 1 the food chain but it was adversely affecting both birds 2 and fish? 3 A. Did Monsanto test? Monsanto did not run 4 tests at that particular time on birds. There were plenty 5 of people running those tests in the fish and wildlife. 6 They were doing it in the United States, there were people 7 doing it in Europe and we knew that the material was 8 getting into the food chain; but we did not -- that was 9 not our work. The thinning of egg shells was found by the 10 people in California, the best of ray knowledge. 11 Q. You say getting -- you know that it was 12 getting into food chain but it was not your work? 13 A. We did not discover it. 14 Q. Oh, okay. Did you review the studies that 15 were conducted by others? 16 A. Yes, sir. 17 Q. And did those studies in fact indicate that 18 not only were PCB's getting into the food chain but that 19 it was killing fish and killing birds? 20 A. It was not -- I do not know if the same 21 studies were showing al1 those three different things. It 22 was killing the birds by having an absence of egg shells, 23 a thinning of egg shells, so when the nesting occurred the 24 chick was -- was destroyed, because you can't sit on a 25 nest without a shell. TOWOLDMONOOI3246 37 MS. RUTTERi Counsel, for the record, you are going very far astray from the corporate designations. MR. RACE: I'll get off this. MS. RUTTER; And I would like to add that the last line of testimony about environmental testing was beyond the scope of the designation and is objected to in its entirety. You did not include that topic on your corporate designationj we're supposed to be talking about acute and chronic toxicity studies. Q. (By Mr. Race) You monitored the industrial hygiene program instituted at Monsanto's plants? A. Well, they purported to be, yes Q. And it was your recommendation that there be periodic testing of Monsanto employees, correct, medical testing? A. Well, yes, we did have a program of examining all people on the hourly, on the wage roll, the PCB employees were tested but they were given the same tests that were given to all our workers in our plants. Q. Okay. Now do you believe that it was good occupational medicine to have workers exposed to PCB's periodically and examined? A. It depends on the exposure. Q. Okay. Can you indicate when, what exposure would warrant periodic medical examinations? TOWOLDMONOOI3247 38 1 MS* RUTTER: Objection, unless you restrict 2 the question to what his opinions were -- 3 MR. RACE: Prior to 1974. 4 MS. RUTTER: Prior to 1974. 5 A. I'm sorry, I lost track of the -- you asked 6 what conditions a worker would be exposed to that would 7 warrant ~ 8 Q. (By Mr. Race) Periodic medical examination. 9 A. Well, that's an assumption that I would have 10 to make by how much exposure did the man have, is he 11 breathing fumes at elevated temperatures for eight hours a 12 day, is he getting the stuff on his hands, and his clothes 13 soaked with it, that's one assumption. If he is doing 14 work for -- he is only breathing the fumes at room 15 temperature and he wears gloves, he's not going to come in 16 skin contact with it, he wouldn't need it. 17 Q. Okay. So did Monsanto ever give any advices 18 that it's -- the employees of its customers should have 19 periodical, periodic medical examination? 20 A. No, sir, we did not. We told them how to 21 avoid any ill effects from the material and if they 22 followed those they did not need monitoring 23 Q. Is your appreciation that all your customers 24 followed advices that were given by Monsanto? 25 A. I wouldn't know. TOWOLDMONOOI3248 39 1 Q. Did you provide for any inspection of any of 2 the Monsanto or any of the facilities of Monsanto's 3 customers? 4 MS. RUTTER: Counsel, Mr. Papageorge has been 5 designated to speak on that topic. 6 MR. RACE: Yeah, well I want to know if Mr. 7 Papageorge has given any information to Dr. Kelly. 8 MS. RUTTER: Rephrase your question. 9 Q. (By Mr. Race) Did you receive any 10 information concerning investigations of the facilities of 11 Monsanto's customers? 12 A. No, sir, I did not. 13 Q. So you never received information as to 14 whether Westinghouse -- the Bloomington facility of 15 Westinghouse abided by the safety guidelines as outlined 16 by yourself, is that correct? 17 A. That's correct. 18 Q. And if you were informed that an employee of 19 Westinghouse would breathe in fumes and was having dermal 20 contact with a substance, with PCB's, you would have 21 recommended periodic medical examination, is that correct? 22 MS, RUTTER: Objection, mischaracterizes 23 prior testimony. 24 MR. LUCASs And assumes facts not in 25 evidence. TOWOLDMONOOI3249 40 1 THE WITNESS* Beg your pardon? 2 MR. LUCASt We both objected to the question. 3 Subject to the objection you can answer the question. 4 MS. RUTTER* Do you need to have it repeated? 5 THE WITNESS* I sure do. 6 MR. RACE * Want me to read it back? 7 (Reporter read back from the record as directed* 8 "Q. And if you were informed that an 9 employee of Westinghouse would breathe in fumes and was 10 having dermal contact with a substance, with PCB's, you 11 would have recommended periodic medical examination, is 12 that correct?") 13 A. I would recommend that they follow the advice 14 on our bulletins, not to breathe the fumes at elevated 15 temperatures and not to -- and to avoid repeated or 16 continuous dermal contact. 17 Q. (By Mr. Race) And if you found out that an 18 employee had dermal contact and breathed fumes at elevated 19 temperatures you would have recommended periodic medical 20 examination? 21 MR. LUCAS * Same objection. 22 Q. (By Mr. Race) You can answer subject to the 23 objection. 24 MS. RUTTER* Objection, mischaracterizes 25 prior testimony and it's a hypothetical question that TOWOLDMONOOI3250 41 1 omits so many facts that it's not susceptible to being 2 answered; it calls for speculation and conjecture. 3 Q. (By Mr. Race) Can you answer it? 4 A. No, I can ' t. 5 Q. Now the first chronic -- Well, IBT conducted 6 chronic studies in 1969, was it? 7 A. I thought it was * 68. 8 Q, ' 68. Did Monsanto have any epidemiological 9 studies? 10 A. On what? 11 Q. On PCB's? 12 MS. RUTTER; During the time before he left? 13 Q. (By Mr. Race) Yes. 14 A. We did not have epidemiological studies. We 15 had what we called our cancer index. Sometime in the 16 early fifties or late forties we made a compilation of all 17 the malignancies that occurred in our workers just to see 18 if there were any clustering of cases at any one 19 particular plant. That was not an epidemiological study. 20 Q. Okay. So it is not what you would consider a 21 statistically significant or attempt to be statistically 22 significant type of study, is that correct? 23 A. That's correct. 24 Q. It would be classified more as a casual 25 observation than a scientific exploit, that is correct? TOWOLDMONOOI3251 42 1 A. Well, I don't think I'd call it casual, we 2 were finding out whether we had a clustering of 3 malignancies at any particular department. 4 Q. You didn't follow any of these employees 5 after they left of the employment of Monsanto, did you? 6 MS. RUTTER: Dr. Kelly personally? 7 MR. RACE> Or his department. 8 MS. RUTTER: Well, objection, calls for 9 speculation and conjecture. 10 MR. RACE: He's here as a corporate 11 representative. 12 MS. RUTTER: He's here as corporate 13 representative through 1974. 14 MR. RACE: I'm agreeing with the time, no 15 problem. 16 MS. RUTTER: There's a problem because you 17 continually attempt to evade the time period that we're on 18 here, and I'm going to make sure the record is clear. You 19 can make faces at me as you have been doing throughout the 20 deposition, I don't care, either properly restrict your 21 question to the time frame that we're dealing with or I 22 will continue to make my objections to make sure that the 23 record is clear and you obviously think this is very 24 funny, that's fine, you can treat it as though it's an 25 amusing matter. I'm going to make sure the record is TOWOLDMONOOI3252 43 1 clear. 2 MR. RACE t Off the record. 3 (Whereupon, a discussion was held off the record.) 4 Q. (By Mr. Race) When did you start doing the 5 cancer index? 6 A. When did I start what? 7 Q. Start keeping your cancer index? 8 A. Late forties, I I think, 9 Q. And you continued the cancer index through 10 1974 when you retired? 11 A. That's correct. 12 Q. Now in that interim period of time did 13 workers leave the employment of Monsanto? 14 A. Yes. 15 Q, Was the cancer index designed tofollow those 16 workers after they left Monsanto? 17 A. If the insurance was in force afterwards it 18 would detect them; if it was not in force it would not. 19 Q. So you can't say that one hundred percent of 20 the employees were followed after they left Monsanto? 21 A. No, I could not. 22 Q. And that's either employees that may have 23 been terminated or quit or retired, correct? 24 A. That's correct, the retirees, however, would 25 continue their insurance, I know they would, so they would TOWOLDMONOOI3253 44 1 be accounted forj but If they quit and dropped their 2 insurance or became disabled, if they were disabled for a 3 broken back or something, that would -- they would be 4 included because our insurance kept on, 5 Q, Now with the cancer index that you kept is it 6 not true that you saw a lot of lung cancer? 7 A. Oh, sure, lung cancer is probably one third 8 of al1 cancers of the male, 9 Q. Did you make any attempt to determine whether 10 the lung cancers were greater than the national average? 11 A. No, sir, I do not believe so, up until 1974. 12 Q. You made no attempt to determine whether this 13 increased lung cancer should cause you concern? 14 A. To which? 15 Q. Cause you concern? 16 MS. RUTTERt Objection to the form of the 17 question, it's vague and confusing. 18 A. Well, in the first place I do not know if 19 there was an increase in lung cancer. What I was 20 interested in was finding out whether or not there was an 21 clustering of any cancers. Now let's take lung cancers in 22 any particular department or particular plant. We did not 23 find that j so this did not give me concern that our 24 environment in the particular plant was giving them an 25 increase in lung cancer. TOWOLDMONOOI3254 45 1 Q. (By Mr, Race) But it was the overall plant 2 as opposed to specific in the plants? 3 A. No. We had the departments in which the 4 employee worked. 5 Q. So when you were looking for clustering you 6 were looking for adverse effects within the specific 7 departments, correct? 8 A. That's correct. 9 0. That's what you mean by clustering? 10 A. Yes. 11 Q. And what you did note that there was a high 12 incidence of cancer but across the board in all 13 departments, is that correct? 14 MS. RUTTER: Oh, objection, mischaracterizes 15 prior testimony. 16 You may answer the question. 17 Q. (By Mr. Race) Can you answer the question? 18 A. Will you repeat it? 19 Q. You said you noticed a large -- a number of 20 cancers, lung cancers, correct? 21 A. Well, large, yes, there were, as I said 22 there -- lung cancers are one-third of all the cancer 23 death for males, so if you're going to bounce up males 24 that are dead of cancer you get one-third of them dead 25 from cancer of the lung. TOWOLDMONOOI3255 46 Q. Okay. But these were, these lung cancers were of employees that worked in all departments, correct? A. Yes, it was spread throughout various departments. Q. And you made no attempt to determine whether the instances of Monsanto lung cancer were greater than the national averages, did you? A. No, sir, I did not carry out a scientific epidemiological study along those lines. Q. Would you agree with me, sir, that Monsanto has a duty to be knowledgeable about the effects of its chemicals? A. Yes. Q. And you would inform -- you being Monsanto prior to 1974, would inform customers and the government of any adverse effects to humans or wildlife noted that Monsanto knew of which was caused by chemicals manufactured by Monsanto, correct? A. That's a pretty long one. Let's break that down into several questions. Q. It's one question and it is a long one. It would be Monsanto's policy to inform the government and customers of adverse effects, toxicological effects of chemicals manufactured by Monsanto? A. If the people didn't know as much about it as TOWOLDMONOOI3256 47 1 we did. 2 Q. And if -3 MS. RUTTER: Counsel, still once again you're 4 straying into broad general areas about chemicals in 5 general Your designations that you asked us to bring a 6 corporate representative here to talk about relate to 7 PCB's. I would ask you to please get back to the 8 corporate designations. 9 Q. (By Mr. Race) So if PCB's were known to 10 cause any adverse effects Monsanto would inform its 11 customers and the government, is that correct? 12 A. If Monsanto knew about it, and if it was at 13 al1 relevant to what the customer was using the material 14 for. 15 Q, And you would agree with me that if it was 16 reasonably possible for a chemical such as PCB's to cause 17 cancer you would notify customers, is that correct? 18 A. Yes, if I thought it was *-- 19 Q. Reasonably possible? 20 A. Reasonably possible. 21 Q. Is it true that positive animal studies with 22 respect to showing tumors, carcinogenic tumors would 23 constitute a reasonable possibi1ity that it would be 24 careinogenic in humans? 25 A. No, it would not. TOWOLDMONOOI3257 48 1 Q. What is the threshold of your reasonably 2 possible? 3 A. If we had any instances of cancer of any 4 statistical accuracy that showed an increase in cancer. 5 Animal studies itself while they are helpful in 6 pointing -- that's all we have, but the government has 7 called sand a carcinogen and I wouldn't consider that to 8 be a carcinogen* The government -- 9 MR. RACE: I'm going to object to the 10 response insofar as we're talking about PCB's along the 11 same things that you are objecting, but that's fine, okay. 12 Q. (By Mr. Race) So in order for you to feel 13 obligated to inform a customer that a chemical such as 14 PCB's is a reasonably possible cause of cancer you would 15 want a scientifically accurate study involving humans, 16 such as epidemiological studies, is that correct? 17 MS. RUTTER: Objection, mischaracterizes 18 prior testimony in several respects. 19 Q. (By Mr. Race) Could you answer that? 20 A. Will you repeat it? 21 MS. RUTTER: Could you read the question 22 back, please? 23 (Reporter read back from the record as directed: 24 "Q. (By Mr. Race) So in order for you to 25 feel obligated to inform a customer that a chemical such TOWOLDMONOOI3258 49 1 as PCB's is a reasonably possible cause of cancer you 2 would want a scientifically accurate study involving 3 humans, such as epidemiological studies, is that 4 correct?") 5 A. No, not necessarily, if we had a negative 6 history of no cancers in our workers with PCB's, no case 7 reports of cancer in our PCB, in our PCB customers, I 8 would consider that information that would not cause me to 9 pay too much reliance on animal testing. 10 Q. (By Mr. Race) Not sure if I understood that; 11 so let me ask again. 12 A. What? 13 Q. Let me ask again, okay. Would you -- You 14 would inform your customers if you thought it was 15 reasonably possible that a chemical would cause cancer, 16 correct, let's start there? 17 A. Reasonably likely that it would cause cancer 18 in his workers, yes. 19 Q. Okay. And I'm talking about what's that 20 reasonable likeliness, okay. If you had animal studies 21 which showed carcinogenic tumors? 22 A. Well, it causes cancers, is that what you're 23 saying? 24 Q. Yes. 25 MS. RUTTERt Objection, asked and answered, TOWOLDMONOOI3259 50 1....... you have gone over animal studies. ...................................... 2 Q. (By Mr. Race) Would you inform your 3 customer? 4 A. Not necessarily. 5 Q. Okay. Well, that's not threshold yet? 6 A. What? 7 Q. Now if you had animal studies then what other 8 elements would be necessary in order to make -- alert your 9 customers of a possible connection between a chemical such 10 as PCB and cancer? 11 A. 1 would have to know the relevancy of the 12 doseage to the animals and the exposure of the workers to 13 the product 14 Q. Do you have any information as to what the 15 Westinghouse employees' exposure was before 1970? 16 A. No, I do not. 17 Q. Not at all, no, you do not, okay. 18 A. Well, I'll have to qualify that some. 19 Although I do not know the exposure but I do know that I 20 have talked to medical personnel at Westinghouse, at GE, 21 and they told -- I was told that they had no problems with 22 PCB workers? there were no case reports of even chloracne 23 in the 1iterature in the Westinghouse or GE workers who 24 are by far the largest users of PCB's. 25 Q. Chloracne is not the first sign of PCB TOWOLDMONOOI3260 51 1 exposure, is it? 2 A. Apart from the acute exposures chloracne is 3 believed by many to be the hallmark of PCB exposure, 4 overexposure. 5 Q. Is it not true that you can have chronic PCB 6 exposure and not have chloracne and yet have systemic 7 injury? 8 A. I believe that *s been reported in humans. 9 Q. So it is your position or had been your 10 position up to 1974 that before you had a systemic injury 11 you would have noted chloracne? 12 A. That's correct, not only mine but an awful 13 lot of workers in the field also, 14 Q. And chloracne is more often than not the 15 resuIt of an acute exposure? 16 A. No. 17 Q. Of a chronic exposure? 18 A. Yes. 19 Q,, And just so we're on the same page here, 20 chronic means over a period of time, acute means at one 21 interval in time, is that correct? 22 A. That's correct. 23 Q. So the information that you had gotten on the 24 Westinghouse employees as far as their utilization of the 25 PCB's was not physically how they utilized PCB's but TOWOLDMONOOI3261 52 1 rather the information that you got from the medical 2 personnel indicating an absence of chloracne, is that 3 correct? 4 A. That's correct, absence of chloracne or any 5 systemic illness. 6 MR. RACEt Why don't we take a little five 7 minute break, is that okay? 8 (Whereupon, a short break was taken.) 9 Q. (By Mr. Race) Dr. Kelly, in a document which 10 appears to be -- concerns information which will be 11 related to customers and the government -- Okay, let me do 12 it this way, Carol, so I can grab the document, okay. Do 13 you recognize that handwriting at al1 or the author of 14 that document? 15 A. No, 1 do not recognize the handwriting. 16 Q. Have you ever seen that document? . 17 A. It was in a pile given to me this morning. I 18 certainly didn't go through it very exhaustively, that's 19 the only time I ever saw it. 20 Q. Okay. There are some names which appear to 21 be written on the documents, Mitchell, do you know Mr. 22 Mitchell? 23 MS. RUTTERi Counsel, just a moment, I want a 24 moment to look at the document. 25 THE WITNESS: Is there a date on it? TOWOLDMONOOI3262 53 1 MR. RACE t No. 2 Q, (By Mr. Race) Okay, let me ask you a bit 3 about some of the names that appear in this, on the first 4 page, four, Cary or Cory. Do you know any Cory up at 5 Westinghouse? 6 A. Beg pardon? 7 Q. Cory, is that name familiar to you at all? 8 A. Where is he supposed to have worked? 9 Q. I don't know, I mean, the only thing I know 10 about this document is it was produced from 130,000 11 documents that Monsanto produced. It's a handwritten note 12 and I have some names on it and I don't know anything more 13 than thatj if you could possibly help me by identifying 14 any of the individuals on the document that's what I am 15 asking, okay? 16 A. Yes. 17 Q. So you don't know Mr. Cory? 18 A o No* 19 Q. They have a name of H.E.W. Mitchell on about 20 the fifth page in, I assume that's H.E W., government 21 organization. Mitchell, does that ring a bell for you? 22 A. No, it does not. 23 Q. Okay. Two pages back from that, C.E.Q. 24 Davis, EPA, do you recognize any of the names on that 25 page, two pages back with the names on the top? TOWOLDMONOOI3263 54 1 A. I sure don't, .................... 2 Q. Okay. Wallace, Is that a name that you are 3 familiar with during your employment at Monsanto? 4 A No, sir, 5 Q. Ralph Straud, S-t-r-a-u-d, you've glanced at 6 this document since, you have been looking at this 7 document for five minutes; do you recognize anything in 8 that document? 9 A* I sure don't. 10 Q. Okay. Fine, let's move on. Okay, I'm going 11 to hand you a document which appears to be a typewritten 12 note without a cover letter. It says in the conversation 13 with Larry Marion, Washington bureau of Business Week 14 Do you recognize anything, any names or recognize the 15 author or to whom this document was directed at any point? 16 MS. RUTTER: Is there a date on this 17 document, Counsel? 18 MR. RACE: No. 19 A. Well, I recognize Roush's name. He was my 20 successor, Harbison was president, I don't know what he 21 was, whenever this document was written, doesn't seem to 22 be any date on it. 23 Q. Okay. Roush and Harbison. Okay, I'm going 24 to attach that as Exhibit No, 1. 25 (Whereupon, Plaintiff's Deposition Exhibit No, 1 TOWOLDMONOOI3264 55 was marked..for...ident ifieatIon.).................................................................... Q. Who is Roush? A. He was a medical doctor who succeeded me as medical director. Q. Okay. So he became medical director in 1974 upon your retirement? A. That's right, retired about three years ago. Q. On some of these documents we have confidentiality document, what's the meaning of confidentiality? MS. RUTTER: Objection, beyond the scope, and you're asking it without reference to a particular document. MR. RACE: Well, we'll find one. Okay, here you go. Q. (By Mr. Race) Okay. In the context of this document, is this recognized as a Monsanto document? A, I haven't seen it yet. MS. RUTTER: We're reading it. Counsel. Take a minute to look at the document. A. Yes, this is an internal document. Q. (By Mr. Race) Why would such a document be marked confidential? A. I don't know. Q. What was Monsanto's policy with respect to TOWOLDMONOOI3265 56 1 marking documents confidential? 2 MS. RUTTER: Objection, beyond the scope of 3 the designation. 4 Q. (By Mr. Race) Subject to the objection you 5 can answer that. Can you answer that? 6 A. Do I answer? 7 MS. RUTTER: I think it calls for speculation 8 and conjecture 9 MR. RACE: Well, he's a corporate designee, 10 prior to the Monsanto hierarchy, I would assume that he 11 would be privy to such knowledge. If he is not he can 12 tell me. 13 MS. RUTTER: Counsel, this area of inquiry is 14 totally beyond the corporate designation. 15 MR. RACE: No, I'm handing him documents that 16 reflect in some cases representations made to government 17 bodies, they represent contamination of PCB products and 18 the documents that so reflects that information is 19 relevant to the inquiry is marked confidential; so I'm 20 asking about the document that talks about information 21 that will ultimately be disseminated to the government. 22 Q. (By Mr. Race) Just tell me why it's 23 confidential, if you know. 24 MS. RUTTER: You may answer. 25 Q (By Mr. Race) Why would such a document be TOWOLDMONOOI3266 57 1 marked -2 A. I don't know. 3 0. You don't know the policies of Monsanto as 4 far as delineating a document confidential? 5 A. No, I do not. 6 Q. You say this is an internal committee? 7 A. Correct. 8 Q. Internal memorandum, is these it, Bergen and 9 Springate , are these Monsanto employees? 10 A. Yes, they are. 11 Q. In which capacity? 12 A. They are in the marketing aspect of 13 functional fluids. 14 Q. Which would include PCB's? 15 A. That's correct. 16 Q. And Farrar, Hodges, John, Richard and 17 Wheeler, Wheeler was in the -18 A. In the medical department, 19 Q* Medical department, what about Richard, 20 Richard was also in the medical department? 21 A. No, he was in research department, he was a 22 Ph.D., Farrar was in research. 23 Q. Now what was the ad hoc committee? 24 A I think it was a group that they just got 25 together to follow the problem with the PCB's because it TOWOLDMONOOI3267 58 1 had touched on public relations# it touched legal# it 2 touched on the medical department# it touched on 3 marketing# and so I think they got representatives from 4 those four groups* 5 Q. Was there a representative from the legal 6 department in this group? 7 A. I don't believe so on this There's a PR 8 fellow, John. 9 Q. How big was your legal department? 10 A. In '69? 11 MS. RUTTER: Objection# what's the -- What 12 topic is this relevant to# Counsel? 13 MR. RACE: Insofar as he said that these 14 documents that touched upon departments# these department 15 got together, I want to know the size of the departments, 16 MS. RUTTER: Counsel# I started out 17 objecting# this document appears to be very attenuated 18 from any of the designations. The questions you are 19 asking now are the types of questions that since they 20 weren't on your corporate designation should be directed 21 to a witness in a personal capacity. We've discussed at 22 length off the record that it is inappropriate in a 23 corporate deposition for you to jump back and forth 24 between corporate and personal because it will confuse 25 things incredibly. TOWOLDMONOOI3268 59 1 Dr. Kelly, I'm going to allow a few more questions 2 along this line, but Counsel, unless you're -- 3 Q. (By Mr. Race) Just that last question. 4 Doctor, and we can move on. How big was the corporate or 5 legal department in '69? 6 A. In '69 probably twenty. That's a pretty 7 rough guess. 8 Q. How big was your medical department in '697 9 A. About eight. 10 Q, Now I'll mark this as Plaintiff * s Exhibit No. 11 2. 12 (Whereupon, Plaintiff's Deposition Exhibit No. 2 13 was marked for identification.) 14 Q. As part of IBT's testing did you review the 15 Kimbrough slides? 16 A. No, I -- I did not. 17 Q. Did you have the Kimbrough slides reviewed? 18 A. Yes. 19 Q. Now for the jury, for the sake of the jury, 20 Kimbrough was a researcher who had done a chronic two year 21 study with rats and found tumors in the liver, is that 22 correct? 23 A. That is correct, which she called tumors of 24 the liver. 25 Q, And did you cause those slides to be reviewed TOWOLDMONOOI3269 60 1 by anybody on behalf of Monsanto? 2 A. Either -- yes. 3 Q. Was that Dr. Richard, Dr. Gordon and Dr. 4 Poor? 5 A. Yes. 6 Q. And Dr. Calandra aswell? 7 A. I don't know if Calandra saw the slides. 8 Gordon was his pathologist. Poor was the independent 9 pathologist. 10 Q. And is it not true that Dr. Richter and Dr. 11 Gardner were of the opinion that the Kimbrough slides does 12 in fact show cancer tumors of the liver? 13 A. Did or did not? 14 Q. Did? 15 A. Which people. 16 Q. Gardener and Richter? 17 A. I don't know if I saw those reports, they 18 came back by the time I left or not. 19 Q. But Dr. Poor did not, is that correct? 20 A. He did not find the number that she found. 21 She found something like 175 out of 200, and he did not. 22 He found -- We're getting into a very involved discussion 23 about liver pathology because they changed the ground 24 rules around that particular time. 25 Q. Whether there's metastasis. TOWOLDMONOOI3270 61 1 A. Beg your pardon? There were never any j 2 raetastases; but whether or not they were having a 3 regeneration of liver cells and some people called that a 4 new growth or a tumor, they may have called it a cancer, 5 whereas 1 don't know who Wittgen was, W-i-t-t-g-e-n, I : 6 believe, we sent them, we sent the government our slides 7 and Kimbrough sent us her slides and I'm not sure. I have | 8 never seen the results from the government on our slides. 9 Eventually I think they came but that was after I left. ! 10 Poor found something like six cases of he may have called ! 11 malignancy, but he hedged pretty much on it. i 12 Q, Okay, so isn't it true that Richter and 13 Gardner of -- 14 A. Did you say Richter? 15 Q, Richter, R-i-c-h-t-e-rr and Gardner, | 16 concurred with Dr, Kimbrough in her findings, is that a 1 17 fair statement? ;! 18 MS. RUTTER: Objection, asked and answered, ! 19 Dr, Kelly testified that he believed that any statements 1 20 made by Drs. Richter and are you saying Gardner. 21 MR. RACE: I think it's Gardner, Gordon. 22 MS. RUTTER: I don't recognize that name. | 23 i! 24 Q. (By Mr. Race) Who's the other pathologist? A. There was Keplinger and Gordon. 25 Q. So it was Richter and Gordon concurred with TOWOLDMONOQ13271 62 1 Dr. Kimbrough's findings as to tumors found in the livers, 2 is that not correct? 3 MS. RUTTER; Objection, asked and answered 4 and I believe he's indicated that anything they said was 5 after his time. 6 A. 1 never saw their reports 7 Q. (By Mr. Race) Is it also not true. Doctor, 8 that Dr. Poor disputed Kimbrough's findings? 9 A. Yes, he did. 10 Q. Is it also not true that the only report that 11 Monsanto caused to be published was the report of Dr. 12 Poor? 13 A. I don't know. 14 Q. Do you know whether Dr. Poor refused to have 15 his report on the Kimbrough studies peer reviewed? 16 A. I don't know. 17 Q. Would you put any weight in articles that are 18 not peer reviewed? 19 A. Well, it depends on the author, in other 20 words, Poor is an expert, he's the head pathologist at 21 this Eppley Institute at the University of Nebraska which 22 is a well-known cancer institution. So I don't think he 23 had to have a peer review al1 that, this was really not an 24 article, he just gave us an opinion on what the slides 25 were. TOWOLDMONOOI3272 63 1 (Whereupon, a lunch break was taken.) 2 Q. For the sake of the jury should this ever 3 about read to the jury, could you explain who is Dr. 4 Calandra? 5 A. Dr. Calandra is a Ph.D./M.D. who was the 6 president of Industrial Bio-test Laboratory, he founded 7 and he remained with it until it folded. 8 Q. Okay. And once again, IBT or Bio-test -- 9 A. Industrial Bio-test Laboratory. 10 Q. Were the laboratories that were used by 11 Monsanto in conducting their initial chronic studies in 12 '69, right? 13 A. Right. 14 Q. And who once again for the sake of the jury 15 was Dr, Gordon -- 16 A. He was a pathologist in the laboratory. I 17 don't know if he was a veterinary or an M.D., but he's a 18 pathologist. 19 Q. And that's a pathologist at IBT, is that 20 correct? 21 A. IBT. 22 Q. And then Dr. Richter? 23 A. I'm not sure. I recal1 the namebut I don't 24 know what he was doing. 25 Q. Now part of your responsibilities were to TOWOLDMONOOI3273 64 1 draft warnings for PCB, is that correct? 2 A. That's correct. 3 Q. I would like for you to review -- Well, 4 actually. I'll tell you what I want to ask on these. The 5 years of these particular publications if you know, they 6 are not on there, 1'ra not going to ask you any detailed 7 questions about those publications but if you can 8 enlighten me as to the years? 9 A. Well, this one, the only way I could tell is 10 by the name, they call it Monsanto Chemical Company and I 11 really don't -- It's a pretty old one, but I don't know. 12 Q. How old? 13 A. Gosh, I don't know. They changed the name 14 from Monsanto Chemical Company to Monsanto Company, so 15 I ~ 16 Q. So you don't have any distinct recollection 17 of that which I have handed and which has been previously 18 marked as Plaintiff's 196? 19 A. No, I do not. 20 MS. RUTTERi Objection, mischaracterizes his 21 prior testimony. You are saying he doesn't have any 22 recollection at all of the manual, you were asking him 23 about the date 24 Q (By Mr. Race) The date, do you have any 25 recollection of the manual itself? TOWOLDMONOOI3274 65 1 A. No# 1 don't. I mean# I've seen it at some 2 time # but I have -- 3 Q. No independent recollection of this manual? 4 A. Beg your pardon? 5 Q. No independent recollection of what's 6 contained in this manual? 7 A No * 8 MR. RACE: Carol, can you give him the next 9 one so I can keep them in order. 10 MS. RUTTER: Sure. 11 MR. WUNDERLICH: Off the record. 12 (Whereupon, a discussion was held off the record.) 13 Q, (By Mr. Race) Do you recall the dates# 14 that's primarily what I am looking at# okay? 15 A. This was sometime after 1956# that's all I 16 can tell you. 17 Q. Do you know that one that you are now holding 18 which is entitled -19 A* Transformer Askarel Inspection and 20 Maintenance Guide. 21 Q. Okay. They are all called Maintenance and -- 22 Inspection and Maintenance Guides# it's bulletin ICF 38 23 written at the top? that's sometime after 1956? 24 A. '56. 25 Q. Up until 1974 # is that correct? TOWOLDMONOOI3275 66 1 A. Could be any time after thatj I don't know. 2 Q. Okay, next one? 3 MS. RUTTERi It's that one. 4 MR. RACE: Can we keep them in order, Carol. 5 MS. RUTTER* I*m attempting to, I don't think 6 I'm going to disorder them. 7 MR. RACE * Because I do a bad enough job. 8 Q. (By Mr. Race) You're looking at Monsanto 9 Askarel Inspection and Maintenance Guides previously 10 marked as Plaintiff's Exhibit 174? 11 A. Yes. 12 Q Do you know the date on that one? 13 A. Do I know what? 14 Q. Do you know the date or time frame on that? 15 A. Still it's anywhere after 1956. 16 Q. Anywhere from 1956 to present? 17 A. Yes. 18 Q. Plaintiff's -- it's the Monsanto once again 19 Askarel Inspection and Maintenance Guide or Operations and 20 Maintenance Guide previously identified as Plaintiff' s 21 Exhibit 173; do you know what the date of this publication 22 is? 23 A. Not any closer than after 1956. 24 Q. Just after '56, so you say after '56, what 25 makes you give that determination? TOWOLDMONOOI3276 67 A. Because they moved their headquarters from South Second Street out to -- Q. 800 North Lindbergh? A, Lindbergh, and they called themselves the Monsanto Company rather than the Monsanto Chemical Company. Q. So before 1956 it was Monsanto Company? A. Right. Q. Company? And after '56 it was Monsanto Chemical A. Yes, but also -- MS. RUTTER: Objection, I think you just reversed. Q. (By Mr. Race) Before Monsanto -- A. It was Monsanto Chemical Company, then they changed it to Monsanto Company, and then they, when they broke it up into separate divisions I think they went back to Monsanto Chemical Company for one group of their compounds. Q. Company? So before 1956 it was Monsanto Chemical MS. RUTTER Objection, I think he said that date was approximate, Q. (By Mr. Race) After 1956 at some point it was Monsanto Company? TOWOLDMONOOI3277 68 1 A. Right. 2 Q. And then later on it went back to Monsanto 3 Chemical Company, a portion of it? 4 A. No, they still kept it Monsanto Company, but 5 they had Monsanto Chemical Company, Monsanto Plastics 6 Company? 7 MS. RUTTER* And just for whatever it's worth 8 on the record, Exhibit 173 refers to Monsanto Chemical 9 Company at 800 North Lindbergh Boulevard. 10 MR. RACE: Right. 11 Q. (By Mr. Race) Monsanto Chemical Company, I'm 12 getting confused, okay, that which has previously about 13 marked as Plaintiff's Exhibit 151, Aroclors, can you give 14 me approximate date? 15 A. Just the same as the last three. 16 Q. After 1956? 17 A. Right. 18 Q. Do you recognize any of these particular 19 brochures? 20 A. Beg pardon? 21 Q. Do you recognize this brochure which is 22 previously marked as Plaintiff's Exhibit 121? 23 A. I think I have seen it. 24 Q. Did you have any input into this brochure? 25 A. No, sir, with the exception of personal TOWOLDMONOOI3278 69 1 protection and toxicology* 2 Q. Insofar as these brochures contained any 3 warnings it would be you that would have drafted the 4 warnings, is that correct? 5 A, That's correct * 6 Q Let's look at that which has been previously 7 marked as Plaintiff's Exhibit No, 118, can you give me an S indication of the period of time for this one? 9 A. That's before 1956. 10 Q. Okay. Because at that point it's marked 11 Monsanto Chemical Company, it's a post office box, is that 12 correct? 13 A. That's correct, a different address than the 14 headquarters. 15 Q. Now the brochure which is now marked 16 Plaintiff's Exhibit 111, the Aroclor Physical Properties 17 and Suggested Applications, can you give me an indication 18 of its date of origin? 19 A* Oh, that still shows the old terminology of 2 0 the company and it shows the headquarters on South Second 21 Street rather than out at Lindbergh. 22 Q. So this would be before 1956? 23 A. That's right. 24 Q. Okay. The Care and Grooming of Askarel 25 Transformer Fluids, Plaintiff had previously had marked TOWOLDMONOOI3279 70 1 Plaintiff's Exhibit 197, can you give me an indication of 2 when that was? 3 A, That's probably early also. 4 Q. Prior to 1956? 5 A. 1956, because theycalled themselves Monsanto 6 Chemical Company. 7 Q. Okay. The next one is Askarel Inspection and 8 Maintenance Guide previously identified as Plaintiff's 9 Exhibit 180, that would be post-'56? 10 A. That's after '56. 11 MS, RUTTER: For the record, I would like the 12 record to reflect that Plaintiff's Exhibit 180 states on 13 the face of it, revised August, 1976. 14 THE WITNESS: Revised. 15 MR. RACE: Just for the record I'd like to 16 state that after 1956 includes 1976. 17 MS. RUTTER: For once, Counsel, I agree with 18 you. 19 (Whereupon, a discussion was held off the record.) 20 Q, (By Mr. Race) Okay. I'm handing you a 21 document entitled Toxicology and Safe Handling, Monsanto 22 Aroclors, can you give me approximate date on the origin 23 of this particular document? 24 A. I don't know when this was, because I'm not 25 even sure that I saw that. It could be after '74 as far TOWOLDMONOOI3280 71 1 as I know. 2 Q. You have no independent recollection of 3 drafting or editing any of the information contained in 4 that document? 5 A, That's correct. 6 Q. Did you have occasion to inspect the Monsanto 7 facilities? 8 A. Oh, yes 9 Q. And did you note that the workers' shoes if 10 unprotected would rot or otherwise be effected by PCB's? 11 A. It all depends on what the shoe material was 12 If it was neoprene it would not be, if it were leather or 13 rubber it would. 14 Q. So from that you could ascertain that PCB's 15 chemically reacted with leather or rubberj is that right? 16 A. That's right. 17 Q. And as a safety precaution booties were 18 issued to the Monsanto workers ears by Monsanto, is that 19 correct? 20 A. I can't be sure of that. 21 Q. Was there any protective garment issued to 22 protect the workers' shoes that was issued by Monsanto? 23 A. I think they to the best of my recollection I 24 thought they provided the shoes. 25 MS. RUTTER: Counsel, for the record, I don't TOWOLDMONOOI3281 72 1 see this area specified on your corporate designation 2 list. 3 MR. RACE: Off the record. 4 (Whereupon, a discussion was held off the record.) 5 Q. (By Mr. Race) In warning for the use of 6 PCB'a you took particular concern as to whether or not the 7 PCB's were heated, is that not correct? 8 A. That was one of the two main points; one 9 would be that exposure through the skin, the other that 10 breathing in at elevated temperatures. 11 Q. What was it about the elevated temperatures 12 that would cause the material to be of greater concern? 13 A. Well, more of the fluid would turn into a 14 vapor at elevated temperatures. 15 Q. Was it a matter of the chemical composition 16 of PCB's being altered with elevated temperatures? 17 A. No, no, it's just like water doesn't give off 18 steam unless you heat it, then it will give off steam. 19 Q. So your concern was for the elevation was 20 vapor as opposed to the changes in chemical composition of 21 PCB's? 22 A. That's correct. 23 Q. Now when you drafted warnings and talked 24 about warning both Monsanto employees and Westinghouse 25 employees did you give any concern as to possible TOWOLDMONOOI3282 73 1 contaminants in the PCB's? 2 A. When? 3 Q. Prior to 1974? 4 A. Well, we had a supervisor -- We had sometime 5 around 1970 we understood that there was a possibility of 6 chlorinated benzofurans in the PCB's, some work done in 7 Sweden showed it was present, these contaminants were 8 present in European PCB's, but they were not found to the 9 best of my knowledge in our material until I retired. 10 until after I retired. 11 Q. What's your appreciation of relative toxicity 12 between PCB's and furans? 13 A. Furans are much, much more toxic. 14 Q. Do you know whether or not furans were 15 considered to be carcinogenic? 16 A. I can't hear you. 17 Q. Whether they were ever considered to be 18 carcinogenic? 19 A. I don't think so. 20 Q, What about dioxin? 21 MS. RUTTERr Objection, asked and answered. 22 MR. RACEi We've already gone over that. 23 MS. RUTTER: We * ve already done that. 24 Q. (By Mr. Race) Did you ever give any 25 consideration in forming any opinions as to whether or not TOWOLDMONOOI3283 74 1 the PCB's had been contaminated with dioxin? 2 MS. RUTTERt I object to the form of the 3 question. I think you misspoke and it was confusing, you 4 said, "Did you ever give any consideration in formulating 5 opinions?" is that what you meant to say. 6 Q. (By Mr. Race) Did you ever give 7 consideration when formulating opinions -- Let's strike 8 the last question and I'11 try it again, I'm not sure what 9 I said now. Did you give any consideration when forming 10 opinions, when forming warnings of possible dioxin 11 contamination in PCB's? 12 A. Yes, I did, and it was my impression and in 13 fact my belief that dioxins could not be formed from 14 PCB's. 15 Q. Under any circumstances? 16 A. PCB's, under any circumstances. 17 Q. Is that belief premised on the absence of 18 chlorinated benzenes in the PCB's? 19 A. We're talking just about PCB's, we are not 20 talking about trichlorobenzene and PCB's, that's a 21 different ball game. 22 Q. I'm talking now about Inerteen, the product 23 that was provided to Westinghouse? 24 A. Well, that's a different horse. 25 Q. Yes, now let's talk about that horse. TOWOLDMONOOI3284 1 MS, RUTTERs Well, for the record a different 2 corporate designee has been designated to talk about that 3 horse. 4 MR, RACE; Well no, insofar as his warnings 5 and I want to know what he's warning about, and I want to 6 know whether or not in formulating his warnings there was 7 an issue of contaminants. Now whether or not there was 8 contaminants in there and the composition of Inerteen we 9 can talk to Papageorge about that; but I'd like to know 10 what his beliefs were prior to drafting the warnings which 11 may or may not have been provided to Westinghouse; so it's 12 on the warnings issue, 13 Q. (By Mr, Race) So could you -- Did you have 14 any belief as to whether PCB's were in the Inerteen 15 supplied to Westinghouse? 16 A, PCB's were certainly in the Inerteen, yes. 17 Q Okay. Well, we got one compound, did you 18 have any belief as to whether dioxin was in the Inerteen 19 provided to Westinghouse? 20 A. 1 did not know that dioxin was in the 21 Inerteen. I did know that under certain thermal 22 conditions that dioxin, that dioxin could be formed at a 23 particular window of either six to eight hundred degrees 24 Fahrenheit and after it could be formed in that window and 25 after the temperature passed that it could be destroyed. TOWOLDMONOOI3285 76 1 Q. And six hundred to eight hundred degrees are 2 temperatures that can be reached when soldering or welding 3 on the containers? 4 MS. RUTTER* Objection, he's not designated 5 in that area. 6 Q. (By Mr. Race) Did you give any consideration 7 to whether additional warnings were warranted because of a 8 possibly dioxin contaminant in the Inerteen provided to 9 Westinghouse? 10 MS. RUTTER* Objection, assumes facts that 11 are not and will not be in evidence. 12 But you may answer the question. 13 A. I forgot the question. 14 MR. RACE: Could you read it back, I forget. 15 (Reporter read back from the record as directed: 16 *Q. (By Mr. Race) Did you give any 17 consideration to whether additional warnings were 18 warranted because of a possibly dioxin contaminant in the 19 Inerteen provided to Westinghouse?") 20 A. No, because we tested the entire material 21 itself and the amount of dioxin that might have been 22 present was part of the fluid that we tested and it did 23 not alter the toxicity characteristics of the fluid. It's 24 just as though if you were -- if carrots were poisonous, 25 more poisonous than the soup and you tested the soup with TOWOLDMONOOI3286 77 1 the carrots in, you've got a toxicity evaluation of the 2 whole product itself, that' s what we did, we tested the 3 Inerteen whether it had dioxin in it or not. 4 Q. So you tested Inerteen for dioxin when it 5 left Monsanto? 6 A. Mo. 7 MS. RUTTER* Objection to that, 8 mischaracterizes prior testimony and -9 MR. RACE * Let me rephrase it. 10 MS. RUTTER* Counsel, on the record Mr. 11 Papageorge -- 12 MR. RACE: Is going to talk about Inerteen. 13 MS. RUTTER* And Dr. Kaley are the designees 14 in this area. 15 A, But we did not test for dioxin, we tested the 16 toxicity of the Inerteen with whatever dioxin was in 17 there. 18 Q. (By Mr. Race) Okay. And that was at 19 Monsanto? 20 A. Yes. 21 Q. Would a different type of warning be 22 necessary for compounds containing dioxin? 23 A. It depends how much dioxin was in the 24 material. It would depend on the toxicity of the product 25 with this larger amount of dioxin in it. TOWOLDMONOOI3287 78 1 Q. So your answer is under certain 2 circumstances, yes? 3 MS. RUTTER: Objection, mischaracterizes his 4 prior testimony. 5 Q. (By Mr. Race) Subject to the objection, is 6 that correct? You can answer. 7 THE WITNESS: Am I answering? 8 MS. RUTTER: You may answer if you remember 9 the question and answer sequence. 10 MS. RUTTER: Do you need to have it read 11 back? 12 THE WITNESS: I need to have it read back 13 (Reporter read back from the record as directed: 14 "Q. Would a different type of warning be 15 necessary for compounds containing dioxin?") 16 Q. (By Mr. Race) Doctor, let me try to repeat 17 this: under certain circumstances in which dioxin was 18 present in a compound and may be exposed, and may be 19 absorbed by an individual would you agree that it --- that 20 additional warnings would have to be provided than the 21 standard warnings that Monsanto provided with PCB's? 22 MS. RUTTER: I object to the form of the 23 question, it's a hypothetical, it assumes facts that are 24 not and will not be in evidence and it omits necessary 25 facts for the formation of the opinions sought and it TOWOLDMONOOI3288 79 1 calls for speculation and conjecture. 2 Q. (By Mr. Race) Do you remember the question? 3 THE WITNESS: Do I answer? 4 MS. RUTTER: You may answer if you understand 5 it. If you don't understand it, you can ask him to 6 rephrase it. 7 THE WITNESS: Let's hear it back. 8 (Reporter read back from the record as directed: 9 "Q. (By Mr. Race) Doctor, let me try to 10 repeat this: Under certain circumstances in which dioxin 11 was present in a compound and may be exposed, and may be 12 absorbed by an individual would you agree that it **- that 13 additional warnings would have to be provided than the 14 standard warnings that Monsanto provided with PCB's?") 15 A. If there were enough dioxin in the product 16 that the gross toxicity of the product was -- exceeded the 17 toxicity of the material that we commonly shipped then the 18 warnings might have to be strongerj but as I said before 19 when we tested all of the material, whenever dioxin was in 20 there we did not need any extra warnings. 21 Q. Okay. You said the warnings would have to be 22 stronger j what language constitutes stronger warnings? 23 A. Probably a warning instead of caution. 24 Q. Let's get to the gradation here, Caution, 25 warning, danger j is that the stratification of the words TOWOLDMONOOI3289 80 1 utilized in drafting a warning? 2 A. Yes, sir* 3 Q. So the first level is the caution warning? 4 A. Right. 5 Q. Second level is the warning, says the word 6 warning? 7 A. Warning. 8 Q. And third level is danger? 9 A. Right. 10 Q. They increase with the toxicity of the 11 substance? 12 A. Correct. 13 Q. On what category did PCB's fall? 14 A. Caution. 15 Q. That's the lowest category? 16 A. Right. 17 Q, If the dioxin was present in Inerteen to such 18 an extent to increase the toxicity of that substance above 19 a PCB level then you would place the word warning, is that 20 correct? 21 MS. RUTTERx Counsel, for the record are you 22 hypothesizing in your question that PCB's contained 23 dioxins at the time of manufacture? 24 MR. RACE: No. 25 MS. RUTTERi Well, then I'm very confused TOWOLDMONOOI3290 81 1 about what it is you're asking 2 MR, RACE: I'm saying they may have contained 3 dioxins at the time they were exposed to Mr. Bechtold, 4 MS. RUTTER: I want the question to be clear 5 whether you're talking -- are you talking about warning -- 6 I don *t understand at what point in time you're asking 7 about the warning labels Are you talking about -- 8 MR. RACE: I'm talking about the warning -9 Q. (By Mr. Race) When you formulatedwarnings, 10 when you were director of the medical department and you 11 had three classifications, correct? 12 A. Right 13 Q. And PCB's fell into the lowest 14 classification? 15 A. Right. 16 Q. Was there any discussion in the department or 17 thought on your part to elevate PCB's at any time from the 18 lowest warning level? 19 A. No, sir. 20 Q. As a matter of fact you used thesame basic 21 warning that was used when PCB's were manufactured by 22 someone back in 193 5, isn' t that correct? 23 A. I do not know what the Swan labels had on it. 24 That was before my time, I just don't know; but they 25 tested and we did these fifty or so, that we ran on PCB's TOWOLDMONOOI3291 82 1 during the decades following the thirties gave us 2 information as to the general toxicity of the product; if 3 there had been any increase in dioxin that would change 4 the toxicity it would have been picked up by our testing 5 If we saw the warnings and that did not occur the warnings 6 did not have to be changed. 7 Q. And all the fifty tests you did with the 8 exception as you maintain of Treon were acute toxicity 9 tests? 10 A. That's correct. 11 Q. And first chronic toxicity test was conducted 12 by IBT? 13 MS. RUTTER: Objection, mischaracterization. 14 Q. {By Mr. Race) With the exception of how we 15 categorize the Treon study, is that correct, sir? 16 A. Yes. 17 Q. So if we categorize a chronic toxicity study 18 as one which requires a two year period of time then the 19 first toxicity study which was funded or undertaken by 20 Monsanto were the IBT studies in 1969, is that correct? 21 A. Correct. 22 Q. Are you familiar with a J.W. wigert, 23 W-i-g-e-r-t? 24 A. I don't know. Does he have a title or an 25 address or -- TOWOLDMONOOI3292 83 1 Q. Cleveland Works Material and Process 2 engineer? 3 A. I don't have any independent recollection, 4 but if you show me something I may. 5 Q. Do you have an independent recollection of an 6 E.C. Barnes, industrial hygiene engineer? 7 A. E.C. Barnes. 8 Q. Yes, B-a-r-n-e-s? 9 A. Yes, is that the -- That was theBarnes who 10 was an industrial hygienist for Westinghouse. 11 Q. Is chronic poisoning acondition whichoccurs 12 through prolonged absorption of a material? 13 A. Prolonged or repeated. 14 Q. I'm going to hand you a handwritten note. Do 15 you recognize any names on that handwritten note, if there 16 are any, do you recognize that handwriting? 17 A. No, I do not. 18 Q. Have you ever seen that notepreviously? 19 A. Beg pardon? 20 Q. Have you ever seen that handwritten note 21 previously? 22 A. I'm looking, not that I know of, not that I 23 can recollect. 24 Q. From the content or any form do you recognize 25 the author or can you give me any identification as to TOWOLDMONOOI3293 84 1 that note? 2 A. Well, there *s a date on it, I can see that, 3 10/22/69, but 1 -- 4 Q. You don't know anything other than that' s 5 what's written as the date? 6 A. No, sir, 1 do not 7 Q. I'm going to hand you a document entitled 8 rough draft, 11/10/69 outlined, "PCB Environmental 9 Pollution Abatement Plan," Do you recognize that document 10 at all? Do you recognize that document at all? 11 A. I think I've seen it, yes, sir. 12 Q. Is this an internal document or a document 13 that was drafted or presented at Monsanto? 14 A. It's a rough draft of an internal document. 15 Q. Of an internal Monsanto document? 16 A. Right. 17 Q. Do you know the author of that document? 18 A. No, I don't, but -- It was going to discuss 19 something about the ad hoc committee, but I don't know 20 who. 21 (Whereupon, Plaintiff's Deposition Exhibit No. 3 22 was marked for identification.) 23 Q. And the purpose of this outline in 24 conjunction with the ad hoc committee was to discuss the 25 problems associated with PCB's being in the environment, TOWOLDMONOOI3294 85 1 is that correct? 2 MS* RUTTER: Objection, Counsel, for the 3 record which area of the designation do you contend this 4 document relates to? I'm concerned about you asking him 5 the purpose of a document that he did not draft. 6 MR. RACE: Okayf insofar as it's things that 7 may be told to the government, things represented to 8 government agencies regarding effects on Monsanto, effects 9 on customers, sources of contamination, implement the 10 recommended courses of action, it has long terra which will 11 affect both alternatives and possible alternatives and 12 possible testing. 13 MS. RUTTER: Counsel, I don't see anything in 14 this document that has to do with -- 15 MR. RACE: There it is. 16 MS. RUTTER: Where. 17 MR. RACE: JuBt what areas I read, nature of 18 the problem, source of contaminants which we're talking 19 about. 20 MS. RUTTER: He's not designated on that 21 topic. 22 MR. RACE: Public relations, which would 23 include anything, which would include that which was given 24 to or information provided to the government, I think is 25 the gist of this document. TOWOLDMONOOI3295 86 1 MS. RUTTER: Counsel, I don't think this 2 document has any relation to anything he has designated. 3 MR. RACE: He's designated on representations 4 to government agencies regarding the safety of PCB's, is 5 he not? 6 MS. RUTTER: Where does this document refer 7 to -8 MR, RACE: Public relations, which I would 9 assume -10 Q. (By Mr. Race) Doctor, does public relations 11 include which areas representations made to the U.S. 12 government? 13 MS. RUTTER: Objection to the form of the 14 question. 15 A. I couldn't even hear the question. 16 MS. RUTTER: You're asking him to speculate 17 about a document that was authored by -18 MR. RACE: If he doesn't know, he doesn't 19 know, that's fine. 20 MS. RUTTER: I think you're going very far 21 astray from the topics on which he's designated on on. 22 Q. (By Mr. Race) Do you remember the 23 circumstances in which you viewed this document? 24 A. Which one? 25 Q. In which you viewed this document? TOWOLDMONOOI3296 87 1 A. It was probably shown to me by Elmer Wheeler. 2 Q. And Mr. Wheeler was whom? 3 A. What? 4 Q. Mr. Wheeler was whom? 5 A. He was the medical and corporate. 6 Q. And were you the chairman of the medical that 7 oversaw Mr. Wheeler? 8 A. Yes, he reported to me. 9 Q. And this document was formed as part of 10 the -- what you previously discussed, the ad hoc 11 committee? 12 A. That I don't know, I'll have to see what that 13 says 14 Q. Do you remember anything else concerning the 15 circumstances surrounding your initial review of this 16 document? 17 A* No, sir, I do not, and it says here on page 18 three or something that they issued a report on October 19 the 15th, this is a rough draft of 11/10 November of the 20 same year. 21 Q. What year was that, 1969? 22 A. '69. 23 Q. What was your connection with the ad hoc 24 committee? 25 A. No direct connection except that Wheeler was TOWOLDMONOOI3297 88 1 the chairman and Wheeler was a member of the medical 2 department. 3 Q. So Wheeler was in the medical department? 4 A. And he reported told me* 5 Q. So you were kept advised as to the action of 6 the ad hoc committee through Dr. Wheeler? 7 A. That's probably true, apparently not through 8 all major actions but I don't think I did not follow the 9 day-by-day activities of the committee. 10 Q. And a report such as outline of PCB 11 Environmental Pollution Abatement Plan would be considered 12 a major action? 13 A. Yes, I think so. 14 Q. So in that context you would have reviewed 15 this? 16 A. Yes. 17 Q. And as the medical department, as the 18 chairman of the medical department and Dr. Wheeler's 19 supervisor if theres anything that you did not disagree 20 with you could have informed Mr. Wheeler, is that correct? 21 MS RUTTER: Objection to the form of the 22 question, it's vague and confusing. 23 Please listen to it carefully. Could you read it 24 back? 25 (Reporter read back from the record as directed. TOWOLDMONOOI3298 89 1 "Q. And as the medical department, as the 2 chairman of the roedical department and Dr. Wheeler's 3 supervisor if there's anything that you did not disagree 4 with you could have informed Mr. Wheeler, is that 5 correct?" ) 6 (Whereupon, a discussion was held off the record.) 7 MR. RACE I I apologize, I do apologize. 8 A. No problem. 9 Q. (By Mr. Race) As chairman of the department 10 and supervisor of Dr. Wheeler if there was anything that 11 you disagreed with in this report you could have requested 12 its change, is that correct? 13 A. I could have requested? they may not have 14 done it. 15 Q. Do you recall requesting any changes in this 16 draft? 17 A. I don't recall it. 18 Q, Could you again clarify who Dr. J. W. Barrett 19 is? 20 A. I couldn't hear the last word. 21 Q. Barrett? 22 A. Yes, he's --- He was with Monsanto Company, 23 Limited, which is our English subsidiary. I do not know 24 his position, I thought it was research? I'm not sure, 25 Q. Did you ever dissuade or attempt to dissuade TOWOLDMONOOI3299 90 1 Dr. Barrett from conducting any toxicological studies on 2 PCB's? 3 A. Yes. 4 Q. Okay, And why was that? 51 A. Because he wanted to find out what the limit 6 of PCB's would be to kill animals in order to -- and I 7 don't know why he wanted that, because I said, "Look, 8 we've got a safe level, that's what we want to do, why 9 spend money to find an unsafe level?" 10 Q, Was he suggesting acute animal studies? 11 A. No, not acute, I thought it was chronic, It 12 never went any farther than that memorandum of his. 13 Q, So as chronic your appreciation is he wanted 14 to have long term animal studies and after the long term 15 animal studies perform pathology on the organs to see what 16 the effects were? 17 MS. RUTTER: Objection to the form of the 18 question. Counsel is referring to a memo more than forty 19 years ago that Counsel has imprinted ~ 20 MR. RACE: I'm pointing with my finger, 21 Counsel, don't tell me what I'm referring to. I have got 22 papers all over this desk. 23 MS RUTTER: You're asking him questions 24 about a memo from forty years ago and you're not doing him 25 the courtesy of showing him the memo. TOWOLDMONOOI3300 91 MR. RACE* No, I'm pointing with my finger to this line, Counsel. MR. RACEt Okay. A. Okay, what, Q. (By Mr. Race) Can you answer the question? Of course not, we've got to have it read back. A. Of course not, we need to have it read back. MR. RACEt Fair enough because I can't remember it. (Reporter read back from the record as directed: "Q. So as chronic your appreciation is he wanted to have long term animal studies and after the long term animal studies perform pathology on the organs to see what the effects were?") A. That was not my impression of what he wanted. My impression of what he wanted was: "What is the dose that will harm animals?" Whereas I wanted a dose that animals could be tolerant of; and I said, "What do you want to prove?" and I said, "We have a safe level, what else is needed?" So that's the last I heard of it. Q. (By Mr. Race) When you said there were approximately fifty tests conducted, correct? A. That's correct, I was -- I'm not certain of the number. Q. Fifty acute tests? TOWOLDMONOOI3301 92 1 A. Yes. 2 Q And they were conducted from 1938 3 continuously until 1970, is that correct? 4 A. That's correct. 5 Q. So you were killing animals continuously from 6 1938 to 1970, wasn't that correct? 7 A. Yes. 8 Q. So even after this 1955 report when you told 9 Dr. Barrett not to kill animals, you and Monsanto were 10 still killing animals? 11 MS. RUTTER: Objection to the form of the 12 question? 13 A. I didn't tell them not to kill animals, I 14 said, "What do you want to prove?" 15 Q. (By Mr. Race) Who conducted these fifty 16 acute toxicity tests? 17 MS. RUTTER: Objection, asked and answered. 18 Go ahead, I was just saying that it was 19 repetitious; but you may go on? 20 A. The Younger Laboratories and Scientific 21 Associates Laboratories, now remember I -- 22 Q. Scientific was the first one and then it 23 split off and then it was Younger and then you went with 24 Younger? 25 A. More or less. TOWOLDMONOOI3302 93 1 Q. More with Younger than with Scientific 2 Associates? 3 A. But my fifty was an approximation, I was not 4 sure of it. 5 Q. Was there anyone other than Scientific and 6 Younger that conducted acute animal toxicity studies on 7 behalf of Monsanto? 8 A. No, sir. 9 Q. Who was it at acute -- Younger or at 10 Scientific, Younger? 11 A. Who was it? 12 Q. Who was the individual that you contacted? 13 A. Fred Younger was the man at Younger, I forget 14 the name of the man at Scientific Associates. 15 Q. Did they produce documentation on each of 16 these toxicity studies? 17 A. Yes. 18 Q. Would that much documentation be in 19 Monsanto* s files? 20 A. They were when I left. 21 MS. RUTTER: Counsel, it's my belief that 22 those test reports were produced to you. 23 MR. RACE: All fifty of those test reports. 24 MS, RUTTER: He said that was a rough 25 approximation and he made it clear that he was giving a TOWOLDMONOOI3303 94 1 guess We have produced, it's my understanding we have 2 produced what there is, I'm assuming you asked for them 3 and I assume we produced them. 4 MR. RACEi I'm assuming we only got six of 5 the fifty. 6 MS. RUTTERi I don't know what you asked for, 7 Counsel. 8 Q. (By Mr. Race) Could you explain to me, 9 Doctor, why fifty acute toxicity tests were performed? 10 A. Yes, we had varied formulations, we had a 11 sort of a quality control on our manufacture operation, by 12 running a toxicity and we had customers writing in asking 13 us about toxicity of various PCB's. 14 Q. And so you continuously ran the acute 15 toxicity tests? 16 A. I can't hear you, 17 Q. Then you continuously ran the acute toxicity 18 tests, fifty of them? 19 MS. RUTTER* Objection, mischaracterizes. 20 Q. (By Mr. Race) And never did you conduct a 21 chronic toxicity test? 22 MS. RUTTER* Objection, mischaracterizes his 23 prior testimony. You have been over this area now three 24 or four different times. 25 Q. (By Mr. Race) Are you familiar with the TOWOLDMONOOI3304 95 1 Handbook of Dangerous Materials? 2 A. What did you say? 3 Q. Are you familiar with the Handbook of 4 Dangerous Materials? 5 A, Yes, 1 am. 6 Q. Is that a guide that's utilized in the 7 medical profession concerning the toxicity of chemicals? 8 A. What was your verb? 9 Q. Used as a guide? 10 A. I don't believe it's used by anybody of any 11 scientific bent. Sachs is a person who does not do his 12 own work, he compiles stuff of various tests that he sees 13 in the 1iterature. I do not think it is held up as gospel 14 in the toxicological field. 15 Q. Doctor, I'm going to hand you a handwritten 16 note from stationery of Industrial Biotech, dated January 17 14th, 1972, saying, "Dear Don," and signed, "Sincerely, 18 Otis." Do you know who either the Don or the Otis are? 19 A. First of al1, if this is Dear Dad or Dear 20 Don, I don't know either one. 21 Q. And Otis, do you recognize Mr. Otis? 22 A. Beg your pardon. 23 Q. Otis, do you recognize Otis? 24 A. Yes, Otis Fancher, he was one of the 25 administrators of Industrial Bio-test Laboratories. TOWOLDMONOOI3305 96 .. 1 Q. And Dr. Thatcher -- 2 A. Fancher, F-a-n-c-h-e-r. 3 Q. Okay. But you don't know to whom the letter 4 is directed? 5 A. I didn't hear you. 6 Q, You don't know to whom that letter is 7 directed? 8 A. No, I don't. In fact I don't even know if 9 it's -- is it Dad or Dod or David, I just don't know. 10 Q. Do you know who L.A. Watt is? 11 A. I'm sure it`s who he was. 12 Q. Okay. Could you tell me who Mr. L.A. Watt 13 was? 14 A. He was a person who was in charge of 15 technical service for the organic division of Monsanto 16 Chemical Company. 17 Q. Do you recognize a memo from L.A. Watt dated 18 October 11, 19 37? 19 A. Yes, I do. 20 Q. And you're the Dr. Kelly referred to in that 21 memo? 22 A. Yes. 23 MS. RUTTER: What Exhibit number are we on? 24 MR. RACE: No. 4. 25 MR. WUNDERLICH: Number what? TOWOLDMONOOI3306 97 1 MR. RACEi 4. 2 (Whereupon, Plaintiff's Deposition Exhibit No. 4 3 was marked for identification.) 4 Q. (By Mr. Race) Are you familiar with a 5 publication which appeared in 1947 called the Chemist 6 Analyst? 7 A. No, I am not. 8 Q. Are you familiar at all with that 9 publication, the name of it? 10 A. Beg pardon? 11 Q. The name of it? 12 A. The Chemist Analyst, September 1947, and this 13 is by an industrial hygienist of the city of St. Louis, 14 talking about the toxicity of Aroclors. 15 Q, Are you familiar with that publication? 16 A. Beg pardon? 17 Q. You're not familiar with that publication? 18 A. No, but I've read the memorandum. 19 Q. You've read the article? 20 A. I don't know if that's the whole article I 21 have, that looked like a letter to the editor or 22 something. 23 Q. Well, having read it I will attach this 24 Exhibit No. 5. 25 (Whereupon, Plaintiff's Deposition Exhibit No. 5 TOWOLDMONOOI3307 98 1 was marked for identification.) 2 Q. Who is A. Mather, M-a-t-h-e-r? 3 A. If he is who I remember he is. a person at 4 our English subsidiary, Monsanto Chemicals, Limited, but 5 I'm not sure what his position was. 6 Q* And P.C. Hayward, Haywood, excuse me? 7 A, I don't recall. 8 Q. Do you recognize that document? 9 A. Yes, sir. 10 Q. Okay, you do recognize that document? 11 A. Yes, I do. 12 Q* Okay. Do you know who that was directed to, 13 Mr. Haywood? 14 A. Beg your pardon? 15 Q* Are you familiar with Mr. Haywood now? 16 A. Yes. 17 Q* Who is Mr, Haywood? 18 A. Did it say he's in Australia. 19 Q. Newport? 20 A. Oh, Newport, that * s in England, that's in 21 Wales, but Mr. Mather is wrong about almost in every 22 paragraph* 23 Q. Okay. But so Mr. Mather is a Monsanto, Inc., 24 Great Britain employee, correct? 25 A. That's correct, TOWOLDMONOOI3308 99 . 1 Q 2 employee? And Mr. Haywood is a Monsanto, Great Britain 3 A. That'8 correct. 4 Q. And this is an internal memo between two 5 Monsanto employees in Great Britain? 6 A. Thats correct. 7 Q, That * s Exhibit 6 What is a come-clean type 8 of label? 9 A. What is the come-clean, 10 Q. Type of warning that was placed on -11 A. I don't Know if I have ever heard of it. 1 12 don't know. I mean, the information seems to be quite 13 solid on this statement, "Avoid prolonged or repeated 14 contact with the skin, avoid prolonged breathing of vapor 15 : - or fumes." 16 Q. How long is prolonged if you read this? 17 A. I think that's a judgement call by the 18 individual. 19 Q. So prolonged is left up to the interpretation 20 of the individual, is that correct? 21 A. 1 think so. It certainly has worked because 22 as I said we didn't have any problems. 23 Q* Who i8 J. R. Kellogg? 24 A. I don't know. 25 Q. And what about Mr. D.T. Mayer? TOWOLDMONOOI3309 100 1 A, I don * t know who he is He's at the East St. 2 Louis plant or the Monsanto, Illinois plant* 3 Q. Okay. Is this a -- Are you to be CC'd on 4 this, is this you? 5 A. That's I, I'm the third person. 6 MS. RUTTER* Is that R.E. Kelly? 7 MR. RACEt I don't know. 8 A. Well, it looks like -- Oh, I'm sure it's I, 9 though. 10 Q. (By Mr. Race) Have you ever seen this 11 document before? 12 A. I don't think so; but judging by the ones 13 they sent it to I think I would have gotten a copy of it. 14 MR. RACE * I'll mark it as an Exhibit No. 7. 15 (Whereupon, Plaintiff's Deposition Exhibit No. 7 16 was marked for identification.) 17 Q, (By Mr. Race) You're familiar with the World 18 Health Organization, are you not? 19 A. I couldn't hear you. 20 Q. You're familiar with the World Health 21 Organization? 22 A. Yes. 23 Q. And that's a respectable body, is that not? 24 A. Well, I don't know that much about them. I 25 just know who they are and that's about it. TOWOLDMONOQ13310 101 1 Q. It's a world organization that in part 2 monitors and studies toxic chemicals, does it not? 3 A. I don't know that. I don't remember 4 receiving any of their publications routinely 5 (Whereupon, a short break was taken.) 6 Q. Yusho occurred in 1966, is that correct? 7 A. *65 or '66. 8 Q. Okay. And the effects, the toxicological 9 effects started to become known about two years later. 10 about 1968, is that correct? 11 A. Well, I think the effects became known less 12 than two years, but the causative agent was not decided 13 until two to four years later. 14 Q. And the causative agent in that regard was 15 determined to be furans? 16 A. That's correct. 17 Q. And the furans were found in the Yusho oil in 18 parts of five parts per million? 19 A. Oh, higher than that, I'd say figures up to 20 five thousand parts per million. 21 Q. Where did you see the figures of five 22 thousand parts per million? 23 A. Oh, these memorandum around here. 24 Q. The contamination that was ultimately -- Were 25 you still employed by Monsanto when the level of furan TOWOLDMONOQ13311 102 1 contamination was established in PCB*s? 2 MS. RUTTER* Objection, are you talking about 3 Yusho? 4 MR. RACE: No. 5 MS. RUTTER* We've already answered this 6 question. 7 MR. RACE * And I'm just clarifying when the 8 time he retired it was not yet established the 9 contamination level of furans in PCB's. 10 Q. (By Mr. Race) Is that correct? 11 MS. RUTTER: Objection, it's vague. Are you 12 referring to Monsanto PCB's? 13 MR. RACE* Yes. 14 A. Yes, that's correct. 15 Q, (By Mr. Race) What is yellow atrophy of the 16 liver, acute yellow atrophy of the liver? 17 A. Acute yellow atrophy of the liver is an 18 illness caused by either viruses or chemical intoxication. 19 It's characterized by jaundice, discoloration, jaundice of 20 the skin, discoloration of the liver, shrinkage of the 21 liver and can be fatal 22 Q. Is there any correlation between acute yellow 23 atrophy of the liver and PCB's? 24 A. And who? 25 Q. PCB's? TOWOLDMONOQ13312 103 1 A. No, sir, I don't think so. There had been a 2 correlation set up by some people due to the fact that 3 Halowax Corporation in 1936 or '37 used a chlorinated 4 diphenyl benzene which is not a PCB in connection with one 5 of their chlorinated naphthalenes, and that particular 6 compound along with other plain, plain chlorinated 7 naphthalenes were correlated with yellow atrophy of the 8 liver in cable pullers in New England. 9 Q. Okay. So you are -- You testified that 10 there's a correlation, a possible correlation between 11 chlorinated naphthalene and acute yellow atrophy of the 12 liver? 13 A. Yes, sir, there has . 14 Q. But not chlorinated biphenyls? 15 A. That's correct 16 Q. And is it not true is that chlorinated 17 naphthalenes and chlorinated biphenyls are of the same 18 chemical family, namely hydrochlorinated aromatic or 19 chlorinated, chlorinated aromatic hydrocarbons? 20 A. Yes, but just because, coal and die must come 21 from the same family, but they are a lot different. 22 Q. Is it not true that in 1955 various studies 23 did in fact show that there were correlations between 24 acute yellow atrophy of the liver and PCB exposure? 25 A. What was that question again, I don't -- TOWOLDMONOQ13313 104 1 Q* Are you aware of any studies which occurred 2 as early as 1955 earlier which drew correlations between 3 acute yellow atrophy of the liver and PCB exposure? 4 A. No, sir, I do not recall those. There have 5 been statements made by individuals that have tagged 6 chlorinated PCB's with the same brush they tagged 7 chlorinated naphthalenet but if you analyze the records 8 you'11 find that the yellow atrophies occurred in women 9 workers who were subjected only to chlorinated naphthalene 10 exposure. 11 Q. What are the adverse human effects of 12 exposure to PCB's? 13 A. It could range from nothing if you don't have 14 much exposure to possible, to chloracne, if you get enough 15 exposure, which hasn't occurred. Conceivably you could 16 get liver failure or chemical hepatitis and liver failure. 17 Q. Is liver failure a serious human injury? 18 A. Is what? 19 Q. A serious human injury? 20 A. Oh, yes, certainly it is. 21 Q. Is chloracne a human injury? 22 A. Chloracne is what? 23 Q, A human injury, would you classify it as a 24 human injury or ailment? 25 A. Yes. TOWOLDMONOQ13314 105 1 MR. RACES Off the record. 2 (Whereupon, a discussion was held off the record.) 3 Q. (By Mr. Race) Doctor, have you seen this 4 document entitled. Analytical Chemistry, Special Studies, 5 71 dash 3. 6 MS. RUTTER: Let's see what the date is. Is 7 there a date on this document, Counsel 8 MR. RACE: No, that's one of my questions 9 If you didn't spend al1 that money having somebody shuffle 10 these documents like a big deck of cards then they might 11 have been in chronological order and it might not have 12 been such a problem. 13 (Whereupon, a discussion was held off the record.) 14 Q. (By Mr. Race) Are you familiar with that 15 document? 16 A. Not too familiar, no, because it's my 17 impression that the residue studies were reported from 18 Bio-test either at the time I was leaving Monsanto or 19 after I left them. 20 Q. So this appears to be a report from Bio-test 21 to Monsanto? 22 A. No, I think Monsanto did the testing on 23 material kept in the deep freeze by Bio-test and sent down 24 to Monsanto. 25 Q. Okay. So this was a matter of Monsanto TOWOLDMONOQ13315 106 1 re-testing Biotech? 2 A. They weren't rejecting them, no, we had the 3 expertise in radioactive finding and they either didn't or 4 it was wiser for us to do it. 5 Q. So you believe that documents represents a 6 Monsanto study done of Biotech? 7 A. Samples. 8 Q, Samples? 9 A. Yes. 10 Q. Okay, I'm going to mark that as -11 (Whereupon, a discussion was held off the record.) 12 Q. And would that be true of these two studies, 13 the first one? 14 MR. WUNDERLICHt What was that one marked? 15 MR. RACE: 8. And No. 8 is job number 16 134 8006 . I think this is just a continuation and has the 17 same job number on it, the first onej and the second one 18 actually is -- No, different dates. 19 A. This one is a continuation of one that 20 Monsanto 2144 -- 21449 21 Q. (By Mr. Race) And finally the last one is 22 also a continuation? 23 A. This is a, in dogs, the last one he just gave 24 me, 2164 was the determination of PCB's in dog tissues, 25 two year chronic testing. TOWOLDMONOQ13316 107 1 Q. That one will be marked 10 and the last one 2 identified as a continuation of original study was marked 3 No. 9. Okay, it's in this box, okay, now this box. Now 4 F.R. Johanson was a toxicologist with -- 5 A. Who is this? 6 Q. Johanson? 7 A. Yes. 8 Q. He was a toxicologist with Monsanto, correct? 9 A. Yes. 10 Q. Do you know if any studies, epidemiological 11 studies were conducted after you left? 12 A. You went too fast, I couldn't hear you. 13 Q. Do you know whether any epidemiological 14 studies had been in the works and started after you left, 15 were there any plans made for epidemiological studies that 16 had not started before you left? 17 A. No. 18 Q. Do you know anything about that record, 19 Doctor? 20 A. Do I know anything about this memorandum? 21 Q. Yes. 22 A. No, sir, I don't. 23 Q. Do you recall anything at all, "Dr. Kelly 24 says burning N.C.R. paper a problem here?" 25 A. Is -- TOWOLDMONOQ13317 108 1 Q. Along with all others? 2 A. Howard is the fellow's last name underneath 3 it? Well, I must have said it, N.C.R. paper uses PCB's in 4 their carbonless carbon paper and it was burned it could 5 conceivable volatilize in PCB's. 6 Q. And what temperatures would that be changed, 7 would that be reached when burning that paper? 8 MS. RUTTER: Objection, calls for speculation 9 and conjecture 10 A. I don't know. 11 Q. (By Mr. Race) I'll mark that as Exhibit 11. 12 (Whereupon, Plaintiff's Deposition Exhibit No. 11 13 was marked for identification,) 14 Q. You're familiar with the IBT studies in which 15 Dr. Levinskas was involved and asked that wording in those 16 studies be changed? 17 MS. RUTTER: Objection, I think you're asking 18 about issues that are after his time. 19 MR. RACE: I don't know. 20 MS. RUTTER: I object to the 21 characterization. 22 MR, RACE: I don't know, I mean, I'm not 23 certain at al1 as to when that occurred. I don't have my 24 date line. 25 A. I do not believe that the correspondence TOWOLDMON0013318 109 1 between Levinskas and Calandra occurred while I was still 2 with Monsanto. I think that occurred after. 3 Q. (By Mr. Race) And who would have been the 4 director at the time that occurred? 5 A. What? 6 Q. Who would have been in that position at the 7 time that that occurred? 8 A. Roush. 9 Q* Roush? 10 A. But I'm not certain. 11 Q. So had you visited the IBT facility? 12 A. Oh, yes, quite frequently. 13 Q. Had you taken note of anything other than 14 clean standard operation procedures? 15 A. No, it looked very first class to me. I've 16 been in a lot of toxicological laboratories in Europe and 17 the United States, this was right up at the top of them. 18 Q. Okay. Did you know Paul Wright at the time 19 you were the medical director? 20 A. Yes. 21 Q o And you were aware that he had left Monsanto 22 to take a position with IBT? 23 A. Yes, 24 Q. And after a stint with IBT he returned to 25 Monsanto, correct? TOWOLDMONOQ13319 110 1 A. To the medical department, yes, sir. 2 Q. And he worked underneath you, did he not? 3 A. Beg your pardon? 4 Q. He worked underneath you? 5 A. Yes. 6 MS. RUTTERt Counsel, there's just one thing 7 I'd like to clarify that was unclear to me. 8 Did you know Paul Wright before he worked in the 9 medical department? 10 THE WITNESS t No. I worked for Monsanto, he 11 worked in the research department, the agricultural 12 department. Wheeler knew him, but I did not know him. 13 Q. (By Mr. Race) But he then after leaving IBT 14 returned to Monsanto in the medical department? 15 A. That's correct. 16 Q. And worked under you as a toxicologist? 17 A. Yes. 18 (Whereupon, a discussion was held off the record.) 19 Q. If PCB's are heated and workers are exposed 20 to vapors they should wear respirators, correct? 21 A. It depends on how long they are exposed to 22 the vapors, It depends on the temperature, it depends on 23 which PCB's. 24 Q. Did you advise, put warnings on the PCB's 25 materials to insure that the ultimate user was aware to TOWOLDMONOOI3320 Ill 1 wear respirators under those conditions. 2 MS. RUTTER: I object to the form of the 3 question. It contains undefined terms that I think have 4 come to be used as legal terms of art. 5 Q. (By Mr. Race) Subject to the objection? 6 A. I told them to avoid breathing the fumes at 7 elevated terms or confined spaces. How they did that 8 depended on their own operation. They may have had 9 exhaust ventilation at the site, they may have had airline 10 helmets, they may have had spot ventilation at the sitej 11 so I did not tell them how to achieve what I recommended. 12 Q. Okay. The warnings that were placed -- Or 13 strike that. The PCB's that were shipped to Westinghouse 14 were done in tank cars, correct, sir? 15 A. Yes. sir. 16 Q. Warnings were not put on tanks cars until 17 1972, is that correct? 18 A. I don't know, I don't know. 19 Q. Okay. If you previously testified that the 20 warnings on tank cars first appeared in 1972 would you 21 have any reason today to doubt that testimony? 22 A. Did I previously testify. 23 Q. I think -- If you haven't, you haven' t, 24 record will speak for itself. 25 A. I don't recall, but I know that we have that TOWOLDMONOOI3321 112 1 seven different language plaquard that we put on tank 2 cars; but I thought that was around 1970. 3 Q. Once again, the only two harmful effects 4 noted to humans have been chloracne and liver damage, 5 correct, exposure to PCB's, correct? 6 A. Acute exposure to PCB's gave rise to a 7 chemical hepatitis, chronic exposure gave rise to 8 chloracne 9 Q. And those were the only two harmful effects 10 to individuals, to workers that you knew of, is that 11 correct? 12 A. That's correct. 13 Q. And how long did you did you know of those 14 two harmful effects? 15 A. Well, I was positive when the case reports 16 of -- rather when two organizations called me about using 17 PCB's as a heat transfer agency, heat transfer agentj they 18 had leaky jury-rigged heat transfer apparatus that leaked 19 and the people breathed it for three or four days at 20 elevated temperatures. That was in the fifties, I 21 believe. I had experience with women who immersed their 22 heads in a thermometer factory someplace in New England 23 that developed chloracne, again for PCB's but not 24 electrical installation, and now 1 suspected it all the 25 time that it could be possible from the Drinker work. TOWOLDMONOOI3322 113 1 Qa What was the OSHA recommended levels, air 2 evels? 3 A. 1 don *t know what the OSHA levels were. The 4 evels recommended by the American Conference of 5 overnment Industrial Hygienists was 5 milligrams per 6 ubic meter for 1254 and 1.7 milligrams for either 48 or 7 2, I don't know which one 8 Q. 1.01 milligrams per - 9 A. Cubic feet, and that was to be an extremely 10 afe level. That's what they thought, 11 Q. And that would be a level that Monsanto would 12 bide by? 13 A. Yes. 14 Q. And that's arrived at from an occupational 15 tedicine doctor's point of view as being a level which 16 rould be far below that which could possibly cause injury, 17 .sn't that correct? 18 A. Well, who arrived at that level? 19 Q. Somebody in your position? 20 A. Well, I don't know if it was far more, but it 21 /as a safe level. Whether it was after factor of two, 22 :hree or ten, I don't know. 23 Q. And that would be a level that would be safe 24 for both humans and animals, is that how that level is 25 ietermined? TOWOLDMONOOI3323 114 1 A. Well, yes, they determine it on animals and 2 then they extrapolate it to humans. 3 Q. Who is W.B, Brown? 4 A* Brown? 5 Q Yes. 6 A. I don't know, there are a lot of Browns a 7 round. 8 Q. Browns -- 9 A. There was a Brown in the government, there 10 was a Brown at GE, but I don't know what Brown you're 11 talking about. 12 Q, Was there a Brown that worked for Monsanto in 13 1955? 14 A. 1 don't know, could be, could not be. 15 MS. RUTTER* Counsel, on the record I have 16 about eight minutes to 4*00 and as I mentioned we have to 17 strictly adhere to the four hour testimony restriction. 18 MR. RACE * How are you feeling, Doctor? 19 THE WITNESS* I'm fine. 20 MR. RACE * Thank you. 21 THE WITNESS * But I cannot be here without my 22 counsel. 23 MS. RUTTER* He's also medically advised not 24 to testify beyond four hours a day and the four hours 25 expires at 4:00 o'clock. TOWOLDMONOOI3324 115 1 Q. 2 Doc? (By Mr. Race) I'm not stressing you, am I, 3 A. Beg your pardon? 4 Q. I'm not stressing you out? 5 A. No. 6 Q. You're stressing me out. 7 A* No, I don't think so. 8 (Whereupon, a discussion was held off the record.) 9 Q. Do you recognize that memo and the names on 10 there? That's directed to J.W. Barrett, who you 11 previously identified as employed by Monsanto U.K., is 12 that correct? 13 A. That's correct. 14 Q. And the author is a Brown; do you recognize 15 the Brown, go to the last page. The author is a Brown. 16 A. It's Hardy here. 17 Q. Who is Mr. Hardy? I stand corrected, it's 18 Mr. Hardy? 19 A. Hardy was a -- I think he was a research man 20 in the Monsanto, England. 21 Q. So this appears to be a communications 22 between internal communications of Monsanto U.K., is that 23 correct? 24 A. That's correct. 25 Q. And these Internal communications would TOWOLDMONOOI3325 116 1 regularly be sent to Monsanto U.S., Is that correct? 2 A. Well, I don't see people from Monsanto U.S. 3 on it, I'm not on it, and there are two memoranda here, it 4 looks like, one there is a Brown, I don't know who he is, 5 the first memorandum is by Hardy, the next one is by 6 Brown. 7 Q. Yes, the first memorandum you have identified 8 is a memorandum appearing to be a memorandum of Monsanto 9 U. K., can you tell me anything? 10 A. Yes, that's right, 11 Q. And the second memo, do you recognize that at 12 all? 13 A. Yes, it's by -- 14 Q. Do you recognize it as being a Monsanto memo 15 at all? 16 A. Yes, it's a Monsanto memo by Brown. 17 Q. Let me identify that as 12 18 (Whereupon, Plaintiff's Deposition Exhibit No. 12 19 was marked for identification.) 20 Q. And you were not employed by Monsanto on July 21 18, 1975, correct? 22 A. I didn't hear the date 23 Q. 1975, July -- 24 A. I was not. 25 Q. The Journal of Industrial Hygiene and TOWOLDMONOOI3326 117 1 Toxicology, was that a recognized journal? 2 A. Yes, it was, that's stopped publication, 3 Q. Yes, but when it was publishing in the 4 thirties it was recognized as a scientifically accepted 5 magazine, is that correct? 6 A* Yes, 7 Q. Is that something that you read and 8 consulted? 9 A. Yes. 10 Q. In your early days in medicine? 11 A. Yes, 12 Q. Are you familiar with Frederick B. Flynn, 13 Ph.D., who published articles in 1946? 14 A. I don't know him. I know his work, he did 15 work for Swan Chemical Company on their PCB's when they 16 had their chloracne epidemic. 17 Q. And he was a recognized authority on PCB's? 18 A. I don't think so. I don't know much about 19 it, but someone picked him. 20 Q, And he had studied -- It's your appreciation 21 he had studied the problem for sometime? 22 A. Beg pardon? 23 Q. It's your appreciation that Dr, -24 A. Flynn 25 Q. That Dr. Flynn had studied the chloracne TOWOLDMONOOI3327 118 1 problem of someone? 2 A. Yes. I don't know if he studied the problem, 3 but he read some tests on material they sent him, to see 4 which if he could find out which was the -5 Q. Is there a correlation between smelling PCB's 6 and the concentration in the air? 7 A. Between what? 8 Q. Smelling? 9 A. Well, I'm not sure at this time if I know 10 what the odor threshold is. 11 Q. In other words if you smell it is it too 12 strong? 13 A. I don't think so. 14 Q, Are there those that would disagree with you? 15 MS. RUTTER: Objection, calls for speculation 16 and conjecture. 17 MR. RACE: Fine. 18 Q. (By Mr. Race) Do you recognize that there 19 are scientists that would disagree with that, that by 20 virtue of the fact that the chemical smell, the 21 concentration is in such levels it would be harmful to the 22 individual? 23 A. Wei1, I don't know. I haven't seen reports 24 of that 25 MS. RUTTER: Got about twenty seconds, TOWOLDMONOOI3328 119 1 Counsel. 2 MR. RACE: We attempted to finish, however, 3 this has been very lengthy, it is very warm and the doctor 4 has been very good; so the decision has been made that 5 we'll resume this deposition at a later date, both 6 Papageorge and Kaley will be produced, we'll make a 7 decision as to whether or not we'll have to finish up with 8 Dr. Kelly or after reviewing the deposition make a 9 determination as to whether the questions asked are 10 sufficient. 11 MS. RUTTER: I need to do one real quick 12 thing since we don't know whether you're going to ask to 13 have him back or not, and this is on the records. 14 CROSS-EXAMINATION 15 QUESTIONS BY MS. RUTTER: 16 Q. Dr. Kelly, I believe Mr. Race asked you some 17 questions about furans and dioxins and a topic that you 18 hadn't been designated on and I believe you gave a window 19 for dioxin formation in pyrolysis if you had PCB's blended 20 with trichlorobenzene of six hundred to eight hundred 21 degrees and I think you said Fahrenheit? 22 A. I'm not sure. It would be centigrade. 23 Q. Mr. Race also gave you some hypotheticals 24 asking you to assume that were dioxins had been found as a 25 contaminant of PCB's; I just want to make sure if the TOWOLDMONOOI3329 120 1 record is clear. While you were medical director of 2 Monsanto up through the end of November of 1974 no dioxins 3 were found as contaminants at Monsanto manufacturing 4 PCB's, is that correct? 5 A, That's correct. 6 MR. RACE t But my question was not with 7 respect to PCB's, it was Inerteen. 8 MS. RUTTER* 1 think the record was very 9 unclear what you were talking about. Counsel, and whether 10 it was pyrolysis or in the manufacture and in any event 11 this witness is not designated on that topic. 12 MR. RACE * Cool. 13 MS, RUTTER: Dr. Kaley is designated on that 14 topic. 15 16 R, Emmett Kelly, M.D, 17 Subscribed to before me this , 1994, 18 19 (Notary Public.) 20 My commission expires * 21 22 23 24 25 Bechtold v,. Monsanto/TM TOWOLDMONOOI3330 NOTARIAL CERTIFICATE STATE OF MISSOURI CITY OF ST. LOUIS ) ) ) I, TOD MINNIGERODE, a Certified Shorthand Reporter and a duly commissioned Notary Public within and for the State of Missouri, do hereby certify that pursuant to agreement there came before me at the offices of Wilburn, Suggs & Watkins, 1221 Locust, St. Louis, MO, R. EMMETT KELLY, M.D., who was by me first duly sworn to testify to the truth and nothing but the truth of all knowledge touching and concerning the matters in controversy in this cause; that the witness was thereupon examined under oath and said examination reduced to writing by me; to be signed by the witness; and that this deposition is a true and correct record of the testimony given by the witness. I further certify that I am neither attorney nor counsel for nor related nor employed by any of the parties to the action in which this deposition is taken; further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto or financially interested in this action. IN WITNESS WHEREOF, I have hereunto set my hand and seal on June 2, 1994. My commission expires July 28, 1995. [Notary Public] TOWOLDMONOOI3331 IN THE CIRCUIT COURT OF THE CITY OF ST . LOUIS STATE OF MISSOURI JUDITH BECHTOLD, et al, ) ) Plaintiffs, ) ) vs. ) Cause No. 922-00911 MONSANTO COMPANY, et al, ) ) Defendants. ) ) REPORTER'S CERTIFICATE AND STATEMENT OF DEPOSITION CHARGES I hereby certify that the original deposition transcript of R. EMMETT KELLY, M.D. taken May 31, 1994, is in the custody of Mr. Joseph A. Race, of the Murray Law Firm, 909 Poydras St., Ste. 2550, New Orleans , LA 70112. For signature, transcript temporarily held at Waller Reporting, 515 Olive , St. Louis, MO 63101. I further certify that costs to be taxed as per statute are as follows: Taxed in favor of: Murray Law Firm 909 Poydras St., New Orleans, LA 70112 Orig. & 1 Atten. & Notary Total: 378.20 76.00 $ 454.20 Taxed in favor of: Husch & Eppenberger 100 N. Broadway St. Louis, MO 63102 One copy: 134.20 Taxed in favor of: Lewis, Rice & Fingersh 100 N. Broadway St. Louis, MO 63102 One copy: Delivery: Total % 134.20 3.00 137.20 Upon delivery of transcripts above charges had not been paid. It is anticipated that all charges will be paid in the normal course of business. IN WITNESS WHEREOF, I have hereunto set my hand and seal on June 2, 1994. Notary Public My commission exp ires July 28, 1995. TOWOLDMONOOI3332 JUDITH BECHTOLD, et al, Plaintiffs, vs. MONSANTO COMPANY, et al, Defendants. CAUSE NO. 922-00911 VENUE ) ) ) ) ) City APPEARANCES Ms. Carol Rutter Mr. Joseph A. Race R. Wunderlich T. Lucas Cause No. 922-00911 DATE 5/31/94 Witnesses Signed Waived Taxing info R. EMMETT KELLY, M.D.( ) 494.65 137.20 DATE FILED Reported by TM INVOICE TOWOLDMONOOI3333