Document 4Jw4nkaxNz2dga5LaJkX8r6NR

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OP ILLINOIS 2 ST. CLAIR COUNTY 3 FRANCES E. KEMNER, et al ) ) 4 Pia intiffs, ) ) 5 VS. ^ ) No. 80-L-970 ) 6 MONSANTO COMPANY, ) ) 7 Defendant. ) 8 9 Before the HON. RICHARD P. GOLDENHERSH, Judge io 11 REPORT OF PROCEEDINGS 12 JURY TRIAL 13 July 17, 1985 14 15 APPEARANCES: 16 MR. REX CARR and MR. JEROME SEIGFREID 17 on behalf of the Plaintiffs; 18 MR. KENNETH R. HEINEMAN and MR. JOSEPH NASSIF on behalf of the Defendant. 19 20 KIMBERLY GANZ, CSR, RPR, CM 21 Official Court Reporter 22 23 24 1 1 BE IT REMEMBERED, that on July 17, 1985 the same 2 being one of the regular judicial days of said court, the 3 above-entitled cause came on regularly for hearing before the 4 HONORABLE RICHARD P. GOLDENIIERSH, one of the Judges of said 5 court, at the St. Clair County Building, 10 Public Square, in 6 the City of Belleville, St. Clair County, Illinois. 7 Whereupon the following proceedings were had: 8 (The following proceedings were had in the hearing 9 and presence of the jury). 10 THE COURT: Good morning. 11 GEORGE ROUSH 12 having resumed the witness stand, being previously sworn, 13 testified further as follows: 14 CROSS EXAMINATION 15 By 16 MR. REX CARR. 17 Q. Doctor, I will show you what has been marked 1510A 18 and ask you if that is a blowup of 1510 which we had 19 discussed yesterday? 20 A. Yes, sir. 21 MR. CARR: I offer 1510A. 22 MR. HEINEMAN: Your Honor, may we incorporate our 23 same objections with respect to 1510? 24 THE COURT: So incorporated. Admitted over 2 1 objection 2 MR. CARR: And I also offer 1511, Your Honor, which 3 is the Krummrich Plant bulletin that had identified. 4 MR. HEINEMAN: Your Honor, we would object to the 5 document in that it is incomplete. I know that Mr. Carr has 6 the complete document from which this was taken. We don't, 7 it is obviously a Monsanto WGK day newsletter and so we are 8 not objecting on the basis of authenticity but we think the 9 full document ought to be used and not use this excerpt. In 10 addition to that, Your Honor -- 11 MR. CARR: If we might approach the bench and 12 counsel point out what he thinks that is relevant that should 13 be included, I might agree with him. 14 THE COURT: Gentlemen, will you come up here, 15 please, and I will take a look at it also. 16 (Bench conference had out of the hearing of the 17 jury.) 18 THE COURT: That is the one paragraph. 19 MR. CARR: What do you think is relevant that should 20 be included? 21 MR. HEINEMAN: I think the whole statement ought to 22 be included. 23 MR. CARR: What statement? 24 MR. HEINEMAN: The whole statement that they have 3 1 made with respect to the update 2 MR. CARR: Even though the Supreme Court suspended 3 it. 4 THE COURT: I am not including that. There is no 5 way I am including that. What do you feel about this one 6 sentence, well, two sentences, I guess, that are in your 7 excerpt other than that. 8 MR. CARR: Well, the one sentence deals with the 9 venue, the suspension about it. 10 THE COURT: That is not -- 11 MR. CARR: The other one is WGK made the material 12 leak from the train car in Sturgeon. 13 MR. HEINEMAN: I want the whole statement included. 14 MR. CARR: The Judge has said that he is not going 15 to include this statement about the Supreme Court action. Do 16 you want the sentence WGK made the material which leaked from 17 the train car at Sturgeon? 18 MR. HEINEMAN: My statement is I want the whole 19 portion of it included and if the whole thing is not going to 20 be included then I object to it on the basis that it is 21 incomplete and it is misleading. 22 THE COURT: Objection is overruled. 23 MR. CARR: So I may state for the record, Your 24 Honor, the only part of this that I am using that I consider 4 1 relevant deals with the doctor's contention and Monsanto's 2 contention and Suskind's contention that no significant 3 health problems arise from being exposed to dioxin and that 4 the workers have been fully informed and that is the part 5 that I have taken. The other part relating to this case that 6 I have not taken is this part quote the Sturgeon trial has 7 been suspended by the Illinois Supreme Court. Monsanto 8 maintains that year long lawsuit at trial should be tried in 9 Boonville, Missouri, where the train car leakage of ortho10 dichlorophenol occurred. Carr maintains it should remain in 11 St. Clair County. WGK made the material which leaked from 12 the train car in Sturgeon, end of quote. That is the only 13 portion relating to this matter that I have not included in 14 this Exhibit 1511. I don't think that it is relevant and 15 that this court should necessarily advise or inform this jury 16 about the suspension by the Supreme Court because it was not 17 suspended that had anything to do with the fact that the 18 trial should be tried in Boonville, Missouri. The Supreme 19 Court has made it clear that the Supreme Court did not 20 suspend this trial to start with. That this court suspended 21 this trial because of not knowing the reasons for the Supreme 22 Court action and for Monsanto to put into the record of this 23 case something that is not material to and not related to the 24 issue that I want to discuss and inaccurate at that would be 5 1 improper and I think the Court1s action is appropriate. 2 MR. HEINEMAN: I am sorry, Judge. Did you overrule 3 the objection? 4 THE COURT: I did overrule the objection. Yes, I 5 did. 6 (The following proceedings were had in the hearing 7 and presence of the jury). 8 THE COURT: The Plaintiffs* Exhibit 1511 is 9 admitted into evidence. 10 Q. Doctor, both 1510. Doctor Roush, both 1510 and 11 1511 contain statements made by representatives of Monsanto 12 relating to the health of the Krummrich Plant employees, do 13 they not, sir? 14 A. Yes, sir. 15 Q. And both statements are. based primarily upon the 16 results of Doctor Suskind's study of the Krummrich Plant 17 workers in 1979 and *80, isn*t that correct, sir? 18 A. Wo, sir. 19 Q; Is there some other statement of Doctor Suskind, 20 that is on the Krummrich Plant workers, that he studied these 21 workers anything other than the September 29, 1980 report 22 that he made? 23 A. No, sir. 24 Q. Well, then his only statement relating to the 6 1 health of those workers, most of necessity, be based on the 2 study that he performed in October of 1979 and reported to 3 you in September of 1980, isn't.that correct, sir? 4 A. Yes, sir 5 Q. Then it is true as I stated it that his statements 6 are based upon the study that he performed in 1979 and 7 reported in 1980, isn't that correct, sir? 8 A. Yes, sir, 9 Q. Yes, And, Doctor, in this document, 1510 and 1511, 10 you refer to the Sauget Plant employees and their health and 11 you tell them and the world that they were found to have no 12 significant health problems, did you not, sir? 13 A. Yes, sir. 14 Q, And, Doctor, this statement that you made at the 15 time you made this statement, you had a copy of the analysis 16 of the Suskind study that we performed or we made in this 17 case, did you not, sir? 18 A. Yes, sir, 19 Q. And you in making this statement totally nill, in 20 other words, the laboratory findings, the porphyrin findings, 21 and the symptomatology reported by those workers, did you 22 not, sir? \ 23 A. No, sir. 24 Q. Did you mention those abnormalities and the 7 1 symptomatology of the workers in either of these 2 2 statements, sir? 3 A . No, sir. 4 Q. Then you paid no heed and gave no reference to and 5 gave no weight to the symptomatology and these laboratory 6 abnormalities, isn't that correct, sir? 7 A. No, sir. 8 Q. What weight did you give to the multiple 9 abnormalities reported by the laboratory? 10 A. Doctor Suskind reviewed them. 11 Q. Doctor Suskind didn't mention them, Doctor Roush. 12 I am asking you now in making this statement, you ignored the 13 laboratory findings that we pointed out to you by the 14 document that we gave you in June, did you not, sir, and gave 15 no weight to those findings, did you, sir? 16 A. I don't know what you mean by weight. 17 Q. You gave no credence, you gave no effect, you 18 considered these findings insignificant, did you not, sir, of 19 no significance as relating to the health of the Krummrich 20 Plant workers? 21 A. Doctor Suskind did that, yes, sir. 22 Q. And did you not -- well Doctor Suskind did not see 23 the analysis that we performed, did he, sir, unless you have 24 sent it to him. Did you send it to him? 3 1 A. No, sir, I did not. 2 Q. He did not see it, he was not aware of the analysis 3 that we had performed upon his, on his medical records and 4 his lab reports, isn't that correct, sir? 5 A. That is correct. 6 Q. So, you are the ones, Monsanto, you at Monsanto are 7 the ones that gave no weight and no significance to the 8 multiple findings that we pointed out existed in that 9 exhibit, isn't that correct? 10 A. Yes, sir. 11 Q. Now, you also make the statement and you made it 12 yesterday that Suskind found, he made the statement in 1511 13 that Suskind found insignificant health problems and in point 14 of fact as we pointed out yesterday, Suskind made no mention 15 of the health, either the existence of health problems or the 16 non existence of the health problems other than chloracne and 17 relating some lipid findings and some SGOT findings to 18 chloracne, isn't that correct, sir? 19 A. Yes, sir. 20 Q. Doctor, the information in 1511 that is contained 21 about the Suskind 1980 report, is that the sum total of the 22 information that you at Monsanto have given the employees of 23 Monsanto relating to Suskind's report? 24 A. I don't know. 9 1 Q. Do you have any information as to any other 2 information given to these workers at Monsanto relating to 3 Suskind's 1980 report? 4 A. Not direct. 5 Q. Do you have it indirect from somebody in your 6 company? 7 A. The plant supervisory personnel have the 8 responsibility to explain. 9 Q. Do you have indirect knowledge that came to you 10 from somebody in your company? 11 A. No, sir. 12 Q. All right. Then you have no knowledge either, no 13 information either direct or indirect that the 1980 report 14 was communicated to or given to the workers other than this 15 exhibit 1511, isn't that correct, sir? 16 A. No, sir. I have nothing else. 17 Q. And, Doctor, then is it a fact that because I am 18 advising you that I sent a copy of your 1980 report to the 19 union and a copy of our analysis of it, is that then the only 20 information that you are aware of to date, since 1979 up to 21 1985, the only information your employees have of what 22 Suskind found in this 1980 report, the only information is 23 what they have received from the Plaintiffs attorneys in this 24 case so far as you know, sir? 10 1 A. Yes, sir, 2 Q. Don't you think, Doctor Roush, that you owed them 3 the duty to send them a copy of this report and not me? I 4 have no obligation to those workers. I neither represent 5 them nor have a case against you for them. Why should it 6 fall upon me to give them a copy of a report that you had 7 since 1980, sir? 8 A. Would you repeat that question for me? 9 (The Court Reporter read back the last question.) 10 MR. HEINEMAN: Excuse me. I would like to object 11 to the question. I am not clear on it. Is he wants Doctor 12 Roush to give his impression of what Mr. Carr's motivation 13 was in sending the report to the workers 14 MR. CARR: If Doctor Roush wants to do that, that is 15 perfectly all right with me but that is not what I have asked 16 him. I asked him in essence, counsel, why Monsanto hasn't 17 given this information to its workers. 18 THE COURT: You may proceed, Mr. Carr. 19 A. Because the report is not complete. 20 Q. Doctor, we have explored that yesterday. 21 A. Yes, sir. 22 Q. And there is nobody on earth that has said that it 23 is incomplete and nobody said it was incomplete until we 24 brought it out in June of 1985, You didn't say it. 'You had 11 1 no memo. You had no writing. Doctor Suskind didn't say it. 2 He was never advised of it that you felt it was incomplete. 3 You never sent him a single thing so that excuse doesn't 4 wash, Doctor Roush. Is there some reason other than the fact 5 that you think it is an incomplete report that you didn't 6 send it to the workers? Is there any reason other than that, 7 sir? 8 MR. HEINEMAN: Your Honor, I object to Mr. Carr's 9 statement. I ask that the jury be instructed to disregard 10 it. He apparently overlooked the doctor's testimony with 11 respect to his oral communications with Doctor Suskind in 12 which he said it was incomplete and he apparently didn't 13 mention that and I object to his statement as being 14 misleading and it should be stricken from the record. 15 THE COURT: Objection is overruled. It was not 16 misleading. 17 Q. Doctor Roush, did you ever tell Doctor Suskind that 18 this report was incomplete? 19 A. Yes, sir. 20 Q. And when was it you told him that, sir? 21 A. Everytime he asked for the final payment for his 22 study. 23 Q. Doctor, you have already said that you sent him or 24 ordered it sent to him his final payment? 12 I 1 A In the last month 2 t Q. Yes, and he hasn't given you any different report, 3 has he, sir? I 4 A. No, sir. 5 Q. 6 report? So, therefore, he still insists this is the final 7 A. He said let's consider it the final report. 8 Q. He did say let's consider it the final report. 9 Thank you, Doctor Roush. Because I am sure that that is the 10 fact. He did say that is the final report, didn't he, sir? 11 A. When we talked, the last month, he did. 12 Q. Indeed he did and you paid him for it, didn't you? . 13 A. Yes, sir. 14 Q. Now, you are not waiting for an additional report 15 from Doctor Suskind, are you, sir? 16 A. Yes, sir. 17 Q. You are? 18 A. Yes, sir. 19 Q- Didn't he just, didn't you just say that he said 20 this is the'final report? 21 A. He said consider it the final report. 22 Q. Didn't you just say that, sir? 23 A. Yes, sir. 24 Q. If that is considered the final report, sir, why 13 1 are you waiting for an additional report? 2 A, Because he told me he is working on a report. 3 Q, When did he tell you he started working on.that 4 report? 5 A. When we went to see him a couple weeks ago. 6 Q. , Aha. So he started working on it a couple of weeks 7 ago? , 8 A. No, sir. He had been working on it. 9 Q. So you went to visit him personally, is that right? 10 A. Yes, sir. 11 Q. And before you told me it was over the telephone, 12 Doctor Roush. 13 A. No, I didn't. 14 Q. You didn't? 15 A. Mo, sir. 16 Q. Well, I misunderstood you then because I asked you 17 did you have any telephone records of it or any memos of it 18 and you responded no, that you did not. 19 A. That is right. 20 Q. I asked if you had any writing of it and you said 21 no, you did not. When did this visit take place, sir? 22 A. In the last 2 or 3 weeks. 23 Q. Be a little more specific, sir. It took place 24 during the time we were in recess, didn't it? 14 i 1 A. Yes, sir. 2 Q. And took place after you received my analysis, 3 isn't that correct, sir? 4 A. No. I don't know. I don't know the relationship ' 5 between the two. 6 Q. And who went with you, Doctor Roush? 7 A. Doctor Nassif. 8 Q. Doctor Nassif? You mean Joe Nassif the attorney 9 here? 10 A. Yes, sir, and Mr. Snively. 11 Q. And Mr. who? 12 A. Snively. 13 Q. And who is he, sir? 14 A. He is a Monsanto lawyer. 15 Q. Another lawyer? 16 A. Yes, sir. 17 Q. So two lawyers and you went to Suskind and talked 18 about this report that he gave to you in September of 1980? 19 A. No, sir. 20 Q. Isn't that what you just said you did? You and 21 these 2 lawyers went to him and talked about this report? 22 A. We went to talk about his study, not his report. 23 Q. Isn't this report part of his study? 24 A. It is a result of his study. 15 1 Q. You went to him to talk about this study? 2 A. Yes, sir. 3 Q. As characterized by this report, didn't you, sir? 4 A. That is part of it. 5 Q. And you sat down in his office and you told him 6 hey, look, this September 29, 1980, report that you have 7 given us, Carr has pointed out that there is multiple 8 laboratory abnormalities that you haven't mentioned. There 9 is multiple porphyrin abnormalities that you haven't 10 mentioned. There is multiple symptoms that you haven't 11 mentioned. How about that, Doctor. Will you not give us a 12 report in which you mention these and discard these findings 13 of Carr's? Isn't that the essence of what this conversation 14 was that took place between you and Doctor Suskind? 15 A. No, sir. 16 Q. Did you have a copy of my analysis with you, sir, 17 either you or Nassif or Snively? 18 A. I don't recall. 19 Q. Give me your bestmemory, sir? 20 A. I don't recall. 21 Q. Doctor Roush, do you know when the document was 22 given to you? 23 A. I don't recall the date. 24 Q. I don't care about the exact date. The document 16 1 was given to you in the week following our recess. Doctor 2 Roush. 3 A. Yes, sir. 4 Q. You went to Suskind sometime after that, did you 5 not, sir? 6 A. Yes, sir. 7 Q. Yes. And did you not discuss with Doctor Suskind 8 the fact that we had reported in this document or had 9 reported these multiple abnormalities? 10 A. Yes, sir. 11 Q. Yes, indeed you had. And this whole visit to 12 Suskind and at the time you visited him, he told you that is 13 or that is considered the final report, didn't he, sir? 14 A. No, sir. 15 Q. Oh, didn't he say -- Isn't that what you said, sir? 16 Didn't you just say that he told you let's consider this the 17 final report? 18 A. That is so he would get payment for it and that is 19 all. 20 Q. Doctor, if you withheld payment all these years 21 because it wasn't a final report and he said well let's 22 consider this the final report, you said okay now we will pay 23 it and you have ordered the payment of it, haven't you, sir? 24 A. Yes, sir. 17 1 Q. Then you, in fact, do agree, you and he both agreed 2 that this is to be considered the final report. He said 3 let's consider it the final report and you said okay, here is 4 your payment. Isn't that exactly what took place, Doctor 5 Roush? 6 A. Yes, sir. 7 Q. And then you asked him or during the course of the 8 same conversation you said this document that Carr has 9 prepared is embarrassing to us. It shows multiple 10 abnormalities. It is something that we have not revealed to 11 our workers. We haven't told them about these 12 abnormalities. We haven't given them this thing but we are 13 sure Carr has or will. Can you not prepare us something to 14 offset what he said here in this report? Isn't that the 15 -essence of what also went on in that conversation, Doctor 16 Roush? 17 A. No, sir. 18 Q. Oh, didn't you discuss with him preparing that 19 report discussing these abnormalities? 20 A. We discussed further studies of his. 21 Q. Didn't you discuss -- I want a direct response to 22 that question, Doctor Roush. Didn't you discuss with him 23 these abnormalities and that he should write a document 24 referring to or disregarding or pointing out that these 18 1 abnormalities are of no consequence? 2 A. No, sir. 3 Q. You discussed the abnormalities with him, didn't 4 you, sir? i 5 A. Yes, sir. 6 Q. And he agreed to write you an additional paper, 7 didn't he, sir? 8 A, No, sir. He was already preparing it. 9 Q. He was what? 10 A. He was preparing that paper before we went.- We 11 went there because he was doing it. 12 Q. What precipitated this preparation of this paper? 13 A. I don't know why he started it. 14 Q. Well, Doctor, isn't it, did you have any 15 communication with him after I first announced in this 16 courtroom, after I got this study from you all and announced 17 to you in cross examination of you and others that I had it 18 and that it had a bearing on the health of the workers? 19 Isn't that when you contacted Suskind and the first time 20 after 1980? 21 A. No, sir. 22 Q. How long did he tell you he was working on this 23 report, this additional report? 24 A. I didn't ask him how long he had been working on 19 1 it 2 Q. What did he indicate to you? What were his exact 3 words as near as you can recall with regard to this so-called 4 additional report? 5 A, I don't think we brought up how long he had been 6 working on it. 7 Q. What were his words, sir, with regard to this 8 additional report? 9 A. He had been working on it. 10 Q. What were his words? I have been working on it? 11 What did he say to you, sir? 12 A. I don't recall specifically. 13 Q. Recall as best you can. Give me your best 14 recollection now, Doctor Roush, what he said. 15 A. I don't recall him saying anything more than he had 16 been working on it. 17 Q. Doctor, he must have said something more than 18 that. The conversation came up. He said consider this final 19 report and pay me for it? 20 A, Wo, sir. 21 Q. And you said okay, I will pay you for it. Then 22 somewhere along the line somebody must have said because I 23 know you already said that you knew of my analysis, of the 24 nurse's analysis of it. You already knew that so somewhere 20 1 along the line that subject must have come up in the 2 conversation, Doctor Roush. 3 A. When we were in Cincinnati. 4 Q. Or at any other time. Doctor Roush? 5 A. No, sir. 6 Q. It never did come up in the conversation either 7 then or before or after, is that right, sir? 8 A. Yes, sir. 9 Q. This additional report? 10 A. The additional report, yes. 11 Q. And its relationship to these abnormalities? 12 A. No, sir. 13 Q- Doctor, what did hfe do? Just come out of the blue 14 then and say well I am working on an additional report 15 without you bringing it up? 16 A. On the phone out of the blue. 17 Q. On the phone. Now, Doctor, you told us a minute 18 ago that it was at this meeting that you had with him in 19 Cincinnati? 20 A. No, sir. 21 Q. This was on the telephone. Now, was this before or 22 after your meetings in Cincinatti? 23 ' A. Before the meetings. 24 Q. And how much before the meeting was it, sir? 21 X A. I don't recall. 2 Q. Your best judgement. Was it a month, a week, a 3 year, 3 years? 4 A. One to two months. 5 Q. All right. It was since I started putting on the 6 evidence as to the health of your workers in these past 7 months since March, isn't that correct, Doctor Roush? 8 A. Yes, sir. 9 Q. Was it before or after you started to take the 10 witness stand? 11 A. I think he called me after that. 12 Q. Yes. And, Doctor, all of this business with Doctor 13 Suskind, then, came up after you started testifying as to the 14 health of these people at Nitro and at Sauget, isn't that 15 correct, sir? 16 A. I believe so. 17 Q. Yes, indeed. 18 MR. CARR: I have no more questions of you, Doctor 19 Roush. 20 THE COURT: Mr. Heineman. 21 CLARIFICATION EXAMINATION 22 By 23 MR. KENNETH R. HEINEMAN. 24 Q. Doctor Roush, let's talk about these series of 22 1 conversations with Doctor Suskind in which there was mention 2 that he had already started working on another report or on 3 an additional report with respect to the Krummrich people. 4 Now, did there come a time when you received a call from the 5 University of Cincinnati recently regarding final payment for 6 the Suskind study and report at Krummrich? 7 A. Yes, sir. 8 Q. All right. Now, let me understand something, if I 9 might. You had a contract with the University of Cincinnati, 10 did you not, sir? 11 A. i Yes, sir. 12 Q. Okay. Now, Mr. Carr keeps talking about you, 13 George Roush, paid Ray Suskind. He keeps mentioning that, 14 doesn't he? But, as a matter of fact, the contract exists 15 between Monsanto Company and the University of Cincinnati, 16 correct? 17 A. Yes, sir. 18 Q. Now, Doctor Suskind is paid a salary by the 19 University of Cincinnati, correct? 20 A. Yes, sir. 21 Q. And I am sure there are expenses that he incurs in 22 connection with the study of this kind that may be reimbursed 23 by the University of Cincinnati, is that right? 24 A. Yes, sir. 23 1 Q. But the payment for the study is between Monsanto 2 and the University? 3 A. Yes, sir. 4 Q. Correct. Who is it that calls you from time to 5 time about the payment under that contract? 6 A. Mr. Curtain, the financial officer. 7 Q. Who? i 8 A. Mr. Curtain, the financial officer. 9 Q. Employed by whom? 10 A. By the University. 11 Q. All right. So it isn't Suskind that came and asked 12 you for the payment as Mr. Carr referred to it, is it? 13 A. No, sir. 14 Q. It is Mr. Curtain? 15 A. Yes, sir. 16 Q. Of the financial Department at the University of 17 Cincinnati? 18 A. Yes, sir. 19 Q. Now, what is it under this contract that Monsanto 20 had that gave you at Monsanto the right to withhold some of 21 the payment for that study? 22 A. The only way we can make sure we are going to get a 23 final report is to withhold 10 percent of the total payment. 24 Q. Was that understood between Monsanto and the 24 1 University of Cincinnati? 2 MR. CARR: I would object. The best evidence, of 3 course, would be a contract. 4 Q. At the beginning? 5 A. Yes, sir. 6 THE COURT: The question is sustained. Would you 7 rephrase the question, please. 8 MR. CARR: Do you have a copy of the contract? 9t MR. HEINEMAN: I am sure we do, somewhere. 10 MR. CARR: That would be the best evidence, counsel. 11 Q- Doctor Roush, did you have any conversations with 12 Doctor' -- Mr. Curtain is it? 13 A. Yes. 14 Q. With Mr. Curtain relating to that payment, that 10 15 percent withheld payment? 16 A. Yes, sir. 17 Q. On how many occasions, sir? 18 A. Many occasions. 19 Q. Half a dozen? 20 A. At least. 21 Q. Over what period of time? 22 A. Since 1980, 23 Q. All right. And what did you tell him? 24 A. I said we must have the final report before we are 25 1 going to pay you. 2 Q. All right. So he as far as you knew understood 3 that the reason you haven't come up with the other 10 percent 4 of the payment was because you didn't have a final report? 5 A. That is right. 6 Q. Now, did you ever discuss that with Doctor Suskind 7 personally that you didn't have a final report from him? 8 A. On a few occasions. 9 Q. All right. As many occasions as you discussed it 10 with Mr. Curtain? 11 A. No, sir. 12 Q. To your knowledge, sir, was Mr. Curtain in touch 13 with Doctor Suskind with respect to your communication to him 14 about wanting a final report before you would come up with 15 the money? 16 A. Yes, sir. 17 Q. Now, when was the most recent time that there was a 18 conversation with Mr. Curtain about coming up with the money? 19 A. I can't recall. I had a phone call from him in the 20 last -- whle I have been over here that I didn't answer his 21 call about the same time that said call from Suskind asking 22 for the money. 23 Q. All right. So as I understand it, during the time 24 that you have been over here, either testifying or preparing 26 1 to testifyf you received a phone message from Mr. Curtain? 2 A. Right. 3 Q. You did not return that call? 4 A. Mo, sir. 5 Q. But instead you had a call from Ray Suskind? 6 A. Yes. 7 Q. And Suskind asked ydu for the money? 8 A. Yes. 9 Q. Now, this occurred before the meeting that you had 10 with him? 11 A. Yes, sir. 12 Q. Now, what did you tell Doctor Suskind on that 13 occasion? 14 A. That we had to have the final report. 15 Q. Now, is that the occasion, by this I mean the phone 16 call with Doctor Suskind before you went and had the meeting, 17 is that the occasion when he asked you to consider the 18 September, 1980, document a final report for the purpose of 19 paying him? 20 A. For the first time he said that. 21 Q. Now, during that conversation, did he mention that 22 he was doing any additional work on the study? 23 A. Yes, sir. 24 Q. All right. Is that what caused the visit? Why did 27 1 you go visit him? 2 A. To find out what he was doing. 3 0. Now, so you went to visit him during the time when 4 you were off the stand, is that right, when there was a break 5 in the proceedings? 6 A. Yes, sir. 7 Q. You had learned about this work that he had done or 8 he was doing during the time when you were either preparing 9 to testify or testifying, is that right? 10 A. Yes, sir. 11 Q. So you couldn't go see him then. So the first 12 chance you got you went to see him and you went with Joe 13 Nassif and Dave Snively, is that right? 14 A. Yes, sir. 15 Q. Now, did you discuss with him during that visit 16 what he was working on? 17 A. Not in any detail. 18 Q. What was the purpose of the visit other than 19 finding out what it was he was working on? 20 A. To find the status of it. 21 Q. To find the status of what, sir? 22 A. Of the study. 23 Q. All right. And what did you learn? 24 A. Not much. What he has done is he has got Vicky 28 1 Hertzburg, the computer statistician who did the statistical 2 analysis for the Nitro study, and she is the one who is now 3 putting the data into place and they are doing a re4 evaluation of the entire study. 5 Q. Now, isn't it at that point during the meeting that 6 he discussed that he had already -- excuse me. He told you 7 on the phone call he had already been -- 8 A. Yes, sir. 9 Q. Working on it. Before the meeting? 10 A. Yes, sir. 11 Q. But what you found .out in the meeting was what it 12 he was doing? 13 A. Right. 14 Q. He didn't tell you, as I understand it, when he and 15 Vicky had begun this additional work? 16 A. No, sir. 17 Q. Now, in connection with the report or the WGK day 18 document that Mr. Carr showed you, that Exhibit 1501? 19 MR. CARR: 1511, counsel. 20 MR. HEINEMAN: 1511? 21 MR. CARR: If you are talking about the last one. 22 MR. HEINEMAN: Yes, where is that. Is that up 23 here? 24 A. No, sir. 29 1 MR. HEINEMAN: This is the one. 2 MR. CARR: 1501 is the request from the union for a 3 copy of the report. 4 Q. 1511 is this portion of this WGK day sheet, is that 5 right? 6 A. Yes, sir. 7 Q. Now, Mr. Carr asked you if that was the only 8 communication that you were aware of that any of these 9 workers had received relating to the results of the Suskind 10 study and examination? 11 A. Yes, sir. 12 Q. Is that right? I 13 MR, CARR: That isn't what I asked. I asked whether 14 or not that was everything they had about the Suskind report. 15 Q. Doctor, you remember that Mr. Carr went over with 16 you the fact that Doctor Suskind wrote letters to the people 17 whom he examined? 18 A. Yes, he did. He wrote letters to 80 of them. 19 Q. He wrote letters to 80 of these people? 20 A. Yes, sir. 21 Q. And he also sent copies of the results of the 22 examinations to their personal physicians? 23 A. Yes, sir. 24 Q. And that was understood at the outset, wasn't it? 30 1 A. Yes, sir. 2 Q. That that was going to happen? 3 A. Yes, sir. 4 Q. That he was going to report the results of his 5 examinations of these people to their personal physicians and 6 to them individually? 7 A. Yes, sir. 8 Q. So at least with respect to the people who were 9 involved, who actually were examined and volunteered and 10 agreed to participate in this study, they received some 11 information from Doctor Suskind with respect to what he 12 found? 13 A. Yes. 14 Q. Now, you did not receive any copies? 15 A . No, sir. 16 Q. Of that, did you? 17 A. No, sir. 18 Q. And you don't know what it was that Doctor Suskind 19 told those people, do you? 20 A. Only that if they had something they should be told 21 about their health status, that would definitely be 22 included. If it was something that should be followed up, he 23 was going to do that. 24 Q. What is the basis of that understanding of yours? 31 1 A, Because he is a physician who was acting 2 independently in the study of these workers. Completely 3 independent. He talked to the employees so that they knew 4 that that examination was between him and them, not Monsanto 5 and them. He thought that he would get more information from 6 them than they might tell us. 7 Q. So that was something that was set up at the very 8 outset? 9 A. Yes, sir. 10 Q. When the examinations occurred in the first place? 11 A. Yes, sir. 12 Q. And that would have been in 1979, October, I guess? 13 A. Yes. 14 Q. Now, you were talking this morning about what plant 15 supervisory personnel tell the workers with respect to 16 information they may have. Is there, to your knowledge, a 17 practice that the plant supervisory personnel communicate 18 regularly with the workers? 19 A. Yes, sir. That is their responsibility. 20 Q. And what is it that they tell them? 21 A. They will tell them communication -- 22 MR. CARR: Unless the witness has some first-hand 23 knowledge, I would object to it. I assume he is telling 24 hearsay and I would object unless he has first-hand knowledge ! 32 1 of it 2 THE COURT: Can you rephrase the question. 3 Objection is sustained. 4 Q. Are you aware of the practice of what is 5 communicated between the plant supervisory personnel and the 6 workers? 7 .A. Yes, sir. There is a procedure written that it is 8 their responsibility. 9 Q. Now, what is it according to that procedure? 10 MR. CARR: Again, Your Honor. That written 11 procedure would be the best evidence of that and I would 12 object to it. The witness is stating something on the 13 procedure unless he has first-hand knowledge that he was 14 there and he wrote it down, 15 MR. HEINEMAN: Your Honor, Mr. Carr has been having 16 this witness testimony for 3 days about documents and reports 17 that he had never seen, that he doesn't know anything about 18 and -- 19 MR. CARR: Your Honor, I object to this. Counsel 20 knows as the Court has ruled that there is a proper way to 21 conduct examinations and counsel is not doing it. His 22 objections were overruled when he made those because the 23 procedure that I followed was proper as the Court has held 24 and now counsel is doing something that he knows is 33 1 improper. I have the right as counsel knows to cross examine 2 adverse witnesses and refer to anything that he might know 3 of. You in putting on your own witnesses have no right to 4 refer to such documents. You may not cross examine your 5 witness. You may not suggest to him answers. You may not 6 ask leading questions and he is improperly stating objections 7 at this time suggesting that this Court has ruled in one 8 fashion for me and in another fashion for him when this Court 9 has followed the law faithfully. 10 MR. HEINEMAN: That is not my position'at all, 11 Your Honor. My position is that in my opinion, his objection 12 is not well taken and that is what I am objecting to. That 13 is the statement I am making. Not with respect to what this 14 Court's ruling is but with respect to whether his objection 15 is well taken. 16 THE COURT: I don't think you have laid the proper 17 foundation yet at this point in time. The objection is 18 sustained. 19 Q. Now, Doctor Suskind -- I got Doctor Suskind on the 20. brain this morning. Doctor Roush, you do not have any 21 personal knowledge, I take it, then, and I think you have 22 previously testified, that you don't have any personal 23 knowledge of what the plant supervisory personnel have told 24 the workers? --- --- ---------------------------------------------- ------------- , 34 1 A. No, sir. 2 Q. All right. Now, this document 1511, does this 3 document set forth everything that Doctor Suskind concluded? 4 A. In the study it is. In his draft report? 5 Q. Yes. 6 A. No, sir. 7 Q. All right. What is it that Doctor Suskind 8 concluded that is not included in that document as best as 9 you can recall it right now? 10 A. Doctor Suskind concluded that the only significant 11 adverse effects were as listed. 12 Q. So that this statement in here that said -- 13 MR. CARR: Your Honor, I would ask that the jury be 14 instructed to disregard that because the witness on .cross 15 examination was asked to point to the conclusions of the 16 Doctor and he did so and what he is now stating is not a 17 conclusion that Doctor Suskind made in the report and the 18 jury is going to be misled about this statement of Doctor 19 Roush's unless counsel intends to have the witness point out 20 in the report where Doctor Roush made the conclusion -- that 21 Doctor Suskind made the conclusion that Doctor Roush has just 22 said that he did make. Otherwise I will move to ask the jury 23 to disregard it. 24 THE COURT: Gentlemen, could you approach the bench 35 1 for a minute 2 (Bench conference had out of the hearing of the 3 jury.) 4 THE COURT: That answer is really foggy to me as to 5 what is listed where and why and I am going to assume that if 6 it is confusing to mef it probably is to the jury. Before I 7 rule on the objection or if you go further, I would like you 8 to have the witness clarify what is listed where and what he 9 is talking about because that is really sort of an ambiguous 10 type of answer. I don't know if he is referring to this, to 11 the report or saying that is the same or different, what he 12 is talking about. 13 MR. HEINEMAN: I will ask him what he is talking 14 about. 15 (The following proceedings were had in the hearing 16 and presence of the jury). 17 Q. Doctor, would you please explain the last answer 18 you just gave us? Tell us what you are talking about? 19 A. When Doctor Suskind went back and took -- He did 20 the study and took the results back to Cincinnati and he went 21 through the data, all of the data was there and his purpose 22 was to point out those things in which there is a causal 23 relationship between the workers in the plant and the 24 abnormalities that he found and he recorded those 36 1 abnormalities that he thought were related, possibly related 2 to the exposure at the Krummrich Plant. 3 MR. CARR: I object to that unless the witness is 4 going to relate it to something in this report where he 5 recorded it and where he makes the statement. He is 6 repeating now the same thing in effect that he did before. 7 My objection is that he is saying Doctor Suskind, this could 8 be abnormalities or recorded these findings in his report and 9 in the cross examination that I conducted, he pointed to none 10 except, he can point to none except the relation to 11 chloraene. 12 MR. HEINEMAN: Your Honor, I think the point that 13 the doctor is trying to'make is that Doctor Suskind listed 14 those relationships, those possible relationships that he 15 concluded existed and that he did not list those things which 16 he concluded did not exist. 17 MR. CARR: That is what counsel is saying, that the 18 report makes no mention, Your Honor. The court has seen the 19 document, the jury has seen the document. The document makes 20 no such mention and I must assume if Doctor Roush is correct, 21 he must be reporting on something that he had a conversation 22 with Suskind recently or with others and I would, therefore, 23 object to that statement. It is obviously hearsay. Doctor 24 Suskind isn't here and it is nowhere in this report that such 37 1 a statement occurred. 2 THE COURT: Objection is sustained. 3 Q. Doctor, let's talk about the Krummrich study. Now, 4 when Mr. Carr was examining you yesterday, he was asking you 5 if there was any connection between the Krummrich study and 6 the spill reported of certain materials, the 2,4 7 dichlorophenol spill that occurred in February of 1979. Do 8 you recall that, sir? 9 A. Yes, sir. 10 Q. Now, what is it that you know about that February 11 spill? 12 A. That spill is related to the OSHA inspection in 13 which they found dioxin along the railroad track and whether 14 that spill along the railroad track was a part of the spill 15 that we are talking about in February has never really been 16 established. But when OSHA came as a result of that and said 17 that they had found dioxin in the work environment, and to me 18 a man who is going to be exposed to dioxin if he is going to 19 have an effect, is going to be chloracne. It was a result of 20 the OSHA announcement that we had found dioxin that I wanted 21 to have as clear a definition of the magnitude of the 22 chloracne associated with working with dioxin as I could 23 possibly get. Doctor Suskind is one of the three known 24 experts in the country as Doctor Crow from the U.K. who 38 1 recently died. Doctor Taylor from Cleveland and Doctor 2 Suskind. So I had Doctor Suskind come to St. Louis with the 3 primary purpose as a dermatologist to decide whether we had a 4 lot of chloracne or how much and the study he did following 5 that was based on his expert opinion as a dermatologist which 6 would be done in looking at the chloracne. 7 Q. Now, going back for a moment to this spill, there 8 was a spill of material on a railroad track adjacent to 9 Department 237, is that right? 10 A. Yes, sir. 11 Q. Was that cleaned up? 12 A. The spill was cleaned up, yes, sir. 13 Q. It was cleaned up right after it happened? 14 A. Yes, sir. 15 Q. In February? 16 A. - Yes, sir. 17 Q. The people who,cleaned it up were outfitted in some 18 way? 19 A. As they clean up all chlorophenol spills. 20 Q. Now, what were they provided in terms of protective 21 gear? 22 A. Complete protective gear so they get nothing on 23 their face, they don't breathe it and they don't get any on 24 their skin,,hands or feet. 39 1 Q. Because of the chlorophenol? 2 A. That is right and-if they get it on them, they are 3 going to get a bad burn. They will get a bad burn just like 4 you can get from a hot stove. It will be a blister and 5 disfiguring and it is painful so we try to keep them from 6 getting any of the chlorophenols on their skin at any time. 7 Q, Now, that is the protective clothing that you were 8 talking about yesterday that these mean wore when they 9 cleaned up that 2,4 dichlorophenol spill? 10 A. Yes, sir. That is spelled out in the safety 11 procedure. 12 Q. Now, that isn't the type of gear that OSHA talked 13 about when they had to put the tape around the department and 14 had the people wear those paper suits and that sort of thing? 15 A. It was. 16 Q. That is not the same kind of gear? 17 A . No, sir . 18 Q. The paper suit business that OSHA required and it 19 is a non permeable paper, is it not? 20 A. Yes, disposable 21 Q. And disposable. That was done at the time that 22 they reported in June of *79 about their findings of dioxin, 23 is that right? . 24 A. Yes, sir. 40 1 Q. Okay. Now, getting back to the way that the 2 Krummrich study itself got started, did you contact Doctor 3 Suskind? 4 A. Yes, sir. 5 Q. And you wanted as I understand it to have a world 6 leading dermatologist examine these people to see if they had 7 chloracne? 8 A. Yes, sir. 9 Q. Now, Monsanto gives the people at that plant a 10 physical examination annually, does it not? 11 A. Yes, sir. 12 Q. Now, for those that want it. They can refuse, 13 isn't that right? 14 A. Yes, sir. 15 Q. But it is offered to them if they want it? 16 A. Yes, sir. 17 Q. And in addition to that and in the course of that 18 examination, a physician at the'plant does a physical exam of 19 them, is that right? 20 A. Yes, sir. / 21 Q. They take X rays and that sort of thing? 22 A. Yes, sir. i 23 Q. And that physician at that time was Doctor Richard 24 Osland? 41 1 A, Or else Doctor Paredes worked with him. 2 Q. Now, I am thinking in 1979? 3 A. Yes, sir, now. 4 Q. Doctor Osland and Doctor Paredes were doing those 5 examinations? 6 A. Yes, sir.. 7 Q. Now, in addition to that, sir, is there such a 8 thing known as the chloracne monitoring program? 9 A. Yes, sir. 10 Q. All right. Now, tell us what that is, if you 11 would, please? 12 A. The people who are exposed to pentachlorophenol are 13 examined on an every 6 month basis and looked for the 14 presence of chloracne and Doctor Osland and Doctor Paredes 15 will treat those if they think it is indicated or if he 16 thinks that it is more than he can handle he will send them 17 off to a dermatologist and usually it will go to Doctor 18 Wallach. 19 Q. Doctor who? 20 A. Wallach. 21 Q. In Belleville here? 22 A. Yes. 23 Q. And so Doctor Wallach here treats the people at the 24 plant that have the chloracne? 42 1 A. Yes, sir. 2 Q. And that is paid for by Monsanto? 3 A. Yes, sir. 4 Q. Now, this program with respect to the penta5 chlorophenol workers, how long has that been going on? 6 A. A long time. 7 Q. Well, when you say a long time -8 A. Longer than 10 or 15 years. ,I have been with 9 Monsanto for 12 years and it has been much longer. It was 10 ongoing when I came. 11 Q. All right. Now, Mr. Carr was asking you about the 12 different types of chloracne and the variety in the kind of 13 chloracne that somebody can get. Would you tell us about 14 that, please? What kind of chloracne did you see in the 15 pentachlorophenyl workers at Krummrich? 16 THE COURT: Before you get into this, is this a 17 good point for a short break? 18 MR. HEINEMAN: Sure, Judge. 19 THE COURT: All right. Ladies and gentlemen, we 20 will take a short break at this time. I would remind you as 21 would go for any other breaks that we take that you are not 22 to discuss this matter among yourselves or with anyone 23 outside the panel or as of yet form any opinions or 24 conclusions about the matters on trial. We will be in 43 1 recess 2 COURT RECESSED: 3 i (The following proceedings were had in the hearing 4 and presence of the jury) 5 GEROGE, ROUSH 6 having resumed the witness stand, being previously sworn, 7 testified further as follows: 8 CLARIFICATION EXAMINATION 9 By 10 MR. KENNETH R. HEINEMAN. 11 Q. Doctor Roush, just before the break we were talking 12 about the difference in the severity of chloracne. Would you 13 tell us what those differences are? 14 A. Chloracne is a condition of the skin that is an 15 effect on the little glands that is largely associated with 16 each hair follicle. There is a little gland that puts out a 17 little bit of oil that keeps the skin oiled and chloracne 18 just as juvenile acne involves that same gland and in 19 chloracne, instead of it being blocked by oil, it is blocked 20 by an overgrowth of the skin itself that grows over it just 21 like oil can block it and when the oil, when that skin grows 22 over that gland, then the cell gets -- that gland gets bigger 23 by virtue of the production of the skin inside the gland. So 24 what makes it get better is the production of skin inside of 44 1 that little gland that makes oil. So it doesn't make oil 2 anymore and the difference between that and juvenile acne is 3 that the oil when it blocks off the pore goes on and makes 4 more oil and then bacteria gets down and gets on the oil and 5 that is the reason it gets infected. 6 In chloracne, there is no inflammation like you get 7 with juvenile acne but it is a disease of the same gland and 8 that is the reason they say that chloracne is much like 9 juvenile`acne. Now that is a start. Now, when you get a 10 little bit of chloracne or you get a little bit of exposure 11 to a number of chemicals that produce this reaction including 12 dioxin, the first thing that happens and it is not understood 13 but it usually happens with blackheads along the ridge here, 14 we call the malar ridge on both sides and it is not 15 understood why and I can't give you a good explanation but it 16 is thought that the man does this (indicating) because that 17 is where the glands are but this is where it happens. I 18 can't give you'a reason why but it is thought because man 19 puts his hands there and that is the most prominent place and 20 that is where more of the glands are. Then if it gets worse, 21 the blackheads will be found around the ear and around the 22 back of the ear and that is the common places. 23 And, that is largely what we have at Krummrich. 24 Those people have just the blackheads. Sometimes the next 45 1 stage is instead of it having a blackhead and I am not sure 2 why it is but the next stage is the gland will block off, 3 maybe squeezing out the blackhead but then that gland as I 4 said gets bigger by virtue of it going-on making more skin 5 underneath inside the gland and that is called chloracne. 6 Now, if you just have blackheads, we call that 7 mild. If it goes on to the next stage and they get what they 8 call bumps, those.bumps, what the bumps are is the actual 9 skin that is inside of that gland. Now, that is the kind of 10 chloracne we see at Krummrich. And, it is known and has been 11 known for I don't know 20 or 30 years at least that the 12 workers working with penta do get that kind of chloracne. 13 And nothing else. The dermatological literature is just 14 replete and many reports of that kind of chloracne seem to be 15 people working with pentachlorophenol. 16 Q. Now, to your knowledge, sir, has there ever been 17 found any 2,3,7,8 TCDD in pentachlorophenol? 18 A. No, sir. 19 Q. So that the dioxins that are in penta that cause 20 that kind of chloracne are the higher chlorinated dioxins? 21 A. Yes, sir. . 22 Q. Hexas and heptas? 23 A. Right. 24 Q. Now, there is, is there not, sir, a severe kind of 19 46 1 chloracne? 2 A. Yes, sir. 3 Q. All right. Would you describe that for us? 4 A. In those workers who have been involved in the 5 accidents, in making up 2,4,5-T -- 2,4,5-T is the 6 trichlorophenol that is precursor in making the phenoxy acid, 7 that is a weed killer. So, those workers who are involved in 8 the production of the precursor in making 2,4,5-T, not what 9 we are talking about here, those workers involved in making 10 the trichlorophenol have had a number of serious accidents 11 and I don't know whether it is 10 or 15 episodes around the 12 world in which people have gotten severe chloracne. And 13 severe chloracne is a different breed of cat than what I have 14 just described for you. In those the glands get big instead 15 of being the glands I have describes are the little white 16 heads are one millimeter, 2 millimeter in size. The ones I 17 am talking about now are centimeter size and you have seen 18 people with juvenile chloracne with scars. It is the same 19 kind of thing only even worse. And not they just get it here 20 with more severe exposure, they get it down their back and 21 anyplace that they have got these glands. The interesting 22 thing is you never see chloracne on the arm. You see it 23 about the face and around in'the very oily parts of the skin 24 rather than in the lesser ones. But great difference. 47 1 The kind of cystic postular type of reactions seen 2 with 2,3,7,8 are not the kind that is seen with exposure to 3 pentachlorophenol where they are being exposed to what we 4 call the higher chlorinated, not 2,3,7,8. 5 Q. Now, the chloracne that has been observed at the 6 Nitro Plant in West Virginia is the severe kind, isn't it? 7 A. Well, some of it was that* We had an episode that 8 has been described in the literature. In 1949 we had a bad 9 episode as a matter of fact the first documented accident in 10 which workers have been exposed to the explosion run away of 11 a reaction and they got bad chloracne and they are the ones I 12 have just described to you that have it up and down their 13 back and they really were disfigured. They would have almost 14 every single pore on their skin were plugged and had that 15 white what they call little bumps, because that was making of 16 the herbicide, so each one, they had it bad. After that, 17 after about the first 5 years or less and it is hard to tell 18 when they started going away, but for the last 10 years they 19 did not have any of the bad things that I have been talking 20 about. When the dose was bad, when they got a lot of it they 21 got that bad disease. When they finally got around to 22 finding out what they had to do to clean it up, then they 23 started to get more like the kind of things we saw with 24 pentachlorophenol. 2,3,7,8 is much more production of a bad 48 1 reaction to that pili sebaceous gland I have described to you 2 than is the higher associated with the pentachlorophenol. 3 Q. Now, at the Nitro Plant, you and Mr# Carr had a 4 discussion about whether or not the production there was just 5 another chlorinated phenol. Do you recall that, sir? 6 A. Yes, sir. 7 Q. And you denied that as I recall? 8 A. Yes, sir. 9 Q. Now, why? Why did you deny that what was going on 10 at Nitro was just another chlorinated phenol? 11 A. Because the presence of 2,3,7,8 in chlorophenols is 12 dependent on what the precursors are that is required to make 13 the 2,3,7,8 and manyi of the chlorophenols do not have the 14 chemical reaction take place that produces 2,3,7,8. So, a 15 lot of reactions. You can't generalize it by saying all 16 chlorophenols make 2,3,7,8. Some of them do and some of them 17 do not. 18 Q. Now, the manufacture of the product at Nitro was in 19 fact begun, was it not, by the hydrolysis of 20 tetrachlorobenzene and not by the direct chlorination of 21 phenol, isn't that correct? i 22 A. Yes, sir 23 Q. And that is the process that is going on at Nitro 24 and that is where you believe the 2,3,7/8 was is in the 49 1 precursor to 2,4,5-T? 2 A. Yes, sir. 3 Q. Now, let medirect your attention,sir, to 4 Plaintiffs' Exhibit 1500which is the Suskindreport with 5 respect to the Krummrich study and I would like to direct 6 your attention, if X may, to Table 3. Do you see that, sir? 7 And it says occurrence of chloracne, doesn't it, sir? 8 A. Yes, sir. 9 Q. And it talks about those who reported a history of 10 chloracne out of 106 people? 11 A. Yes, sir. 12 Q. It says that 40 people said they had.no history of 13 chloracne but 66 people said they did? 14 A. Yes, sir. 15 Q. Then it talks about the people with respect to 16 currently, at the time of the examination in October of 17 1979. At the time that examination took place, it describes 18 the people who actually had the chloracne, correct? 19 A. Yes, sir. 20 Q. It says 63 people did not and 43 people did? 21 A. Yes, sir. 22 Q. So that of the 66 people or excuse me of the 106 23 people,- who were examined at the time, 43 of them had 24 chloracne at that time? 50 1 A. Yes, sir. 2 Q. Now, Doctor Suskind rates the severity, doesn't he? 3 A. Yes, sir. 4 Q. Of the chloracne that he saw. 29 people had mild, 5 correct? 6 A. Yes, sir. 7 Q. 14 had moderate? 8 A. Yes, sir. 9 Q. And nobody had severe, correct? 10 A. Yes, sir. 11 Q. Now, what does that tell you, sir, as to whether or 12 not, or does that tell you anything as to whether or not the 13 people w*ho had chloracne when they were examined in October 14 of *79 were exposed to 2,3,7,8 TCDD? What does it tell you,, 15 sir? 16 A. It tells you either that the 2,3,7,8 was very low 17 in concentration or that this had to be due to something else 18 and in this case since we know these are penta workers, this 19 is the kind of chloracne reaction that you see with exposure 20 to the higher chlorinated than non 2,3,7,8 exposure. 21 Q. Now, you say we know these are the penta workers, 22 is that right? Isn't that what you just said? 23 A. Yes, sir. 24 Q. Now, would you lgok at Table 7 and it says 51 1 occurrence of chloracne by department, correct? 2 A. Yes, sir. 3 Q. Now, with respect to those people who had worked 4 only in Department 236 where penta was manufactured, where 5 the higher chlorinated dioxins would be, 20 of those had 6 chloracne, correct? 7 A. Yes, sir. 8 Q. With respect to those people who had worked both in 9 Department 236 and in Department 237 where the chlorinated 10 phenols are manufactured, how many had chloracne? 11 A, 22 out of 56. 12 Q. Now, with respect to those people who worked only 13 in Department 237 where the chlorophenols were manufactured, 14 orthochlorophenol, parachlorophenol and 2,4 dichlorophenol, 15 how many of those people were there who had worked only in 16 that department that consented to the examination and were 17 examined by Doctor Suskind? 18 A. Questionably 1 out of 6. 19 Q. So there were 6 in all? 20 A. Yes. 21 Q. That were examined that came in for this 22 examination that worked only in Department 237, 5 of them had 23 no chloracne, correct? 24 A. Yes, sir. 52 1 Q. And one had a question mark as to whether or not he 2 had chloracne? 3 A. Yes, sir. 4 Q. Correct. Now, the penta department closed in 1978, 5 correct? 6 A. Yes, sir. 7 Q. And this study was done in 1979? 8 A. Yes, sir. 9 Q. Now, the people that had been in penta when it 10 closed, did they transfer over to Department 237? 11 A. Some of them might. 12 Q. So some of the people that were in this middle 13 category of Department 236 and 237 could well have been 14 people that left penta when it closed and came over to the 15 Department 237 to work? 16 A. Right. 17 Q. All right. Nov/, Doctor Suskind took work histories 18 from these people, didn't he, sir? 19 A. Yes, sir. 20 Q. And he knew which were the ones who worked only in 21 237, which were the ones that worked only in 236 and which 22 were the ones that worked in both? 23 A. Yes, sir. 24 Q. And he also knew that, he knew which ones worked in 53 1 236 and then transferred to 237 and when they did that? 2 A . Yes , sir . 3 Q. That is, provided, they accurately stated their 4 work history? 5 A. Right. 6 Q. When he interviewed them. 7 A. Plus he had the work records. 8 Q. Oh, in addition to that he had work records? 9 A. Right. 10 Q. And what would you conclude, sir, from the fact 11 that there isn't any statistically significant addition to 12 the chloracne by those who went from 236 to 237 as opposed to 13 those who worked only in 236? 14 A. When they worked in both places there was less 15 chloracne in the population than when they just worked in 16 penta. In other words, when they shifted back out, there was 17 less chloracne found in that group when they moved into 237 18 which says that their exposure was lesser, that there was no 19 exposure. \ 20 Q. Now, sir, with absent exposure, can chlojracne tend 21 to lessen or go away? 22 A. Mild chloracne will disappear in most people who 23 have had that condition once they are removed and as a matter 24 of fact, the story we have from the plant is that when they 54 1 would transfer into 237, their chloracne got better. 2 Q. Now, I think, Doctor, that and I know the jury has 3 heard testimony from a Mr. Starzyk whom Mr. Carr examined who 4 had been the foreman in Department 237 who testified that he 5 had had bad chloracne in what he regarded as bad chloracne in 6 Department 236 and that when he transferred to 237 it cleared 7 up so that would substantiate what you are saying, is that 8 right? 9 A. Yes, sir. 10 Q. Now, you say that there seems to be less chloracne 11 in those that worked in both departments. I see the number 12 is 22 whereas Department 236 is 20. Now why do you say less? 13 A. Well, you have to talk about the whole population. 14 There was 44 of those who worked just in the penta15 chlorophenol unit and something about half of them had 16 chloracne and when they moved over to 237, those who had been 17 in the penta unit, there is now less chloracne in percentage 18 wise than there was in 236. 19 Q. Because there is a total population of 56 who 20 worked in both departments? 21 A. Right. 22 Q. Whereas there is a total population of only 44 who 23 worked only in Department 236? 24 A. That is right 55 1 Q. Now, these people that have the chloracne there, 2 they knew they had it, did they not? 3 A. Yes, sir. 4 Q. They were being treated for it? 5 A. They were seen every 6 months. 6 Q. And the company was sending them out to Doctor 7 Wallach in Belleville if they needed it? 8 A. If Doctor Osland thought they needed more than he 9 could give. 10 Q. So they knew they had chloracne? 11 A. Yes, sir. 12 Q. And it was well known there at the plant that the 13 people that worked in the penta department had chloracne? 14 A. Yes, sir. 15 Q. Now, in staying with the report, sir, let me direct 16 your attention to page 9, if I may. Now, we were talking 17 before about what Doctor Suskind did with the information 18 that he had obtained. Now, he came out to Krummrich with at 19 least 2 interviewers? 20 A. Yes. 21 Q. Is that right? And, he entered into -- well, you 22 told us before about his trying to establish a certain 23 relationship with the workers of confidentiality so that they 24 would be more candid with him, is that right? 56 1 A. Yes, sir. 2 Q. Nowr what happened there to your knowledge? I mean 3 in connection with that. What was the communication between 4 them? 5 A. Doctor Suskind, the same as in Nitro, said to us 6 that in order to get the most out of the employee, he is 7 going to have to have privacy and what he does will be 3 between him and the,worker and not Monsanto as a part of it 9 so he used exactly the same procedure at Krummrich as he did 10 at Nitro. So, the histories were taken and were a part of 11 his evaluation of these employees and we were not given 12 access to it because he told the workers he would not let us 13 see them. Now, when he did the studies, as soon as he 14 finished the studies, anything that was abnormal it was his 15 responsibility because I wasn't privy to it to tell the 16 worker if he had something abnormal that should be followed 17 up. In addition to that, those ,workers who said they wanted 18 a copy of their results to be sent to the family doctor, it 19 was sent to them in addition to those that Suskind thought 20 had to be sent to the doctor because something should be 21 done. 22 Q. So, he sent the results to the family physician if 23 they requested it? 24 A. Yes, in addition if he thought there was a followup 57 1 required for their health. 2 Q. So, did there ever come a time when you had the 3 results of these interviews and histories? 4 A. Not until this lawsuit did I get a copy of the 5 histories. 6 Q. Not until Doctor Suskind under order of court 7 turned them over to us? 8 MR. CARR: Doctor Suskind was not ordered by the 9 court. Monsanto was ordered by the court. Doctor Suskind is 10 not subject to the order of the court and the record should 11 be made clear. Monsanto was ordered to produce the records. 12 Monsanto went to Suskind and got the records and produced the 13 records. It was Monsanto that was ordered here and in Nitro 14 to produce those records and I object to the statement of 15 counsel. 16 MR. HEXNEMAN: That is correct. I stand corrected, 17 Your Honor. 18 THE COURT: The record is corrected. You may 19 proceed. 20 Q. The order was to Monsanto. And at that time Doctor 21 Suskind made those histories and examination results 22 available to Monsanto's attorneys? 23 A. Yes, sir. 24 Q. And you had never seen them prior to that time? 58 1 A. No, sir. 2 Q. Now, in 1979, were there some lab results sent to 3 the medical department at the plant? 4 A. Yes,.sir 5 Q. Did you ever see those? 6 A. No, sir. 7 Q. Now, was the plant to your knowledge sent the 8 laboratory results of all of the people who had been examined, 9 by Doctor Suskind in the study? 10 A. I don't know. 11 Q. Now, there were in 1980 there was this report, 12 September of 1980, that was sent to Monsanto, is that 13 correct? 14 A. Yes, sir. 15 Q. To your knowledge, was there ever a prior draft of 16 that report ever sent? 17 A. No, sir. 18 Q. And so the first that you saw of Doctor Suskind1s 19 results was when you saw this report shortly after September 20 29, 1980? 21 A. Yes, sir. 22 Q. Now, if we look at the'discussion section of the 23 report which begins on page 8, he tells us there the 24 population that he surveyed, does he not? 59 1 A. Yes, sir. 2 Q. And on the bottom of page 8 he states a conclusion, 3 doesn't he, relating to both the laboratory and the clinical 4 findings, correct? 5 A. Yes, sir. 6 Q. What does he mean by clinical findings? 7 A. The clinical findings includes the history as well 8 as the physical examinations. In a workup of a patient, the 9 doctor examines everything physically and he takes a complete 1G history and those things that are positive, he will then call 11 those are his findings. And, that is what he is referring to 12 when he says the clinical findings. 13 Q. All right. You say what those things that he 14 reports as" positive he reports as findings? 15 A. Yes. * 16 Q. Now, by positive, does that mean things that are 17 good for you or things that are bad for you or just things? 18 A. When we say in medical, if in the examination he 19 found that the blood pressure was up, it will be a positive 20 finding. If he found that the man had chlpracne, that would 21 be a positive finding. If he saw, found that he had some 22 kind of a deformity of his foot or had a deformity related to 23 a fracture, that would be a positive finding. So all the 24 things that a doctor looks for, if he found something that 60 1 was abnormal, he would call that a positive finding, 2 Q. So that is what a clinical finding is? 3 A, Yes. 4 Q. At least as you understand it in this context? 5 A. That is what he means. 6 Q. So, he does in the report refer to the laboratory 7 and physical examination findings, does he not? 8 A. Yes, sir. 9 Q. He doesn't set them all out specifically, does he, 10 sir? 11 A. No, sir. 12 Q. But he does say there appears to be no significant 13 difference in the clinical and laboratory findings when the 14 group exposed solely to the pentachlorophenol process 15 building 236 compared with the group exposed to the combined 16 pentachlorophenol process, ortho and parachlorophenol 17 building 237, correct? 18 A. Yes, sir. 19 Q. Then on page 9 he goes on and he discusses more 20 relating to the laboratory data, does he not? 21 A. Yes, sir. 22 Q. And he doesn't set forth here all of the laboratory 23 results, does he, sir? 24 A., .No, sir. / 61 1 Q. But he discusses his findings in connection with 2 the laboratory data, doesn't he? 3 A. Yes, sir. 4 Q. And he says in the analysis of laboratory data, 5 possible correlations between the history of chloracne or 6 residual chloracne and levels of test results were examined, 7 correct? 8 A. Yes, sir. 9 Q. So he was looking to find whether or not those 10 people that had chloracne as a result of exposure to 11 something, had any different kind of findings or lab results 12 from those who did not have chloracne? 13 A. Yes, sir. 14 Q. Correct. He says a small number of evaluated total 15 serum lipids were observed, doesn't he? 16 A. Yes. 17 Q. He says there was no correlation between the serum 18 lipids and the presence of chloracne, correct? 19 A. Yes, sir. 20 Q. So that those who had chloracne and those who did i 21 not have chloracne had essentially the same types of serum 22 lipid results statistically? 23 A. Yes, sir. 24 -Q. He says there was no correlation between the serum 62 1 lipids and the presence of chloracne, while persons with 2 elevated triglycerides were found in both the chloracne and 3 non chloracne groups, there appeared to be no correlation 4 between serum triglycerides in the presence or absence of 5 chloracne. No significant differences in levels of 6 cholesterol, LDL, SGOT, SGPT and GGT were found between the 7 chloracne and non acne groups, correct? 8 A, Yes, sir. 9 Q. So he discussed lipids, cholesterol, LDL and he 10 discussed 3 liver enzymes there, didn't he? 11 A. Yes, sir. 12 Q. -Now, he then went on in the next paragraph to 13 report some statistical correlations that he did find, didn't 14 he, sir? 15 A. Yes, sir. 16 Q. And he came to the judgment that the significance 17 of these correlations with respect to the risk of penta18 chlorophenol exposure is still to be determined, didn't he? 19 A. Yes, sir. 20 Q. Now, what did he say with respect to the frequency 21 of VLDL levels? Would you tell us what he said there? 22 A. He says that the VLDL were higher in those who had 23 chloracne than in those who did not have chloracne. The 24 history of chloracne and that means that he did, he took _________________________________________________________________ 63 1 those people who had chloracne and he took those who did not 2 have chloracne and those who had a history of it had higher 3 VLDL than those who did not. 4 Q. And he said that VLDL consists of about 60 percent 5 triglycerides, correct? 6 A. Yes, sir. 7 Q. Then he went on to report another interesting 8 observation, did he not? 9 A. Yes, sir. 10 Q. And he says :-- what did he say about HDL? 11 A. Those who had HDL of 45 or more had less residual, 12 means they had less evidence of chloracne than did those who 13 had chloracne. 14 Q. So that the HDL was higher in those who had no 15 history of chloracne as opposed to those who did? 16 A. Yes. And that means that includes those who had 17 chloracne and it went away. 18 Q._ All right. 19 A. The implication of that is that if there is 20 association, it is real, it is not there just because you 21 find it doesn't mean that is the case. If you did it again 22 it may not be that way but if there is an association, if it 23 is real, when the man's chloracne as we described will go 24 away over a period of time, then, if it is real, that will go 64 1 away and the way you tell it is after we went away if we re 2 tested them and if their HDL had gone down or hadn't raised, 3 then that means that there was an association. 4 Q. Now, he then goes on to say he observed something 5 with respect to smoking. Now, smoking would be something he 6 would get purely from the history? 7 A. Yes, sir. 8 Q. So, when he went back to Cincinnati with the 9 results of these laboratory tests and these physical exams 10 and these interviews, he analyzed and made conclusions with 11 respect to the physical findings, the clinical findings, with 12 respect to the laboratory results and with respect to the 13 history that he took? 14 A. Yes, sir. 15 Q. And with respect to the history, what did he find 16 with respect to smoking? 17 A. He found that those people who smoke have more 18 chloracne. What he is trying to say there and he tried to 19 explain it is that it is quite obvious the man who smokes, if 20 he has got any of the pentachlorophenol in his hands and goes 21 up and smokes, that is the way he is probably getting it. At 22 least that is the good explanation for why the people with 23 chloracne is higher in those who smoke. 24 Q. Is that there is more hand to face? 65 1 A. Hand to face. 2 Q. Movement. Now, what is vthe difference between, why 3 is it that someone who worked in pentachlorophenol would send 4 tend get it on their hands? 5 A. Pentachlorophenol is a solid and the solid is made 6 much like a potato chip. It forms a little thin sheet and in 7 the making of these thin sheets, lots of it gets broken off 8 and so the big problem in making penta is that the workers 9 are exposed to the dust of penta and it is relatively easy to 10 get on their skin and they are always working at housekeeping 11 trying to get rid of the dust and if they then keep the dust 12 down, the chloracne would go out. It would go back with 13 renewed energy to get it cleaned up and then the chloracne 14 would go,down, it would lose their attention and it would go 15 back up. So it is related to very positive exposure and 16 gross exposure to the dust. Easily related. 17 Q. So in the penta department, is it a department in 18 which the product is dry? 19 A. Yes, sir. 20 Q. It is dusty. It is in the air. Gets on the 21 hands. Doesn't burn? 22 A. No. 23 Q. All right. In that -- 24 A. It is irritating but it is the kind of irritation 66 1 that you get if some of the things \that you cook have an 2 irritating odor or more than that but it is more than just a 3 little bit. If you go there and it was dusty and it was 4 right, you would say some irritation of your nose and your 5 eyes maybe but not of any consequence to those who work 6 there. 7 Q. All right. Now, in Department 237, you have got 8 liquids, correct? 9 A. Yes, sir. 10 Q. You have liquid 2,4 dichlorophenol. You have 11 liquid phenol. You have liquid orthochlorophenol. Liquid 12 parachlorophenol, correct? 13 A. Yes, sir. 14 Q. There is no dust? 15 A. No, sir. 16 Q. Those liquids are contained in pipes and tanks? 17 A. Yes, sir. 18 Q. So that unless there is a leak or a spill, nobody 19 is going to get it on them? 20 A. No housekeeping problems. You don't have to worry 21 about it getting around. 22 Q. So that while in the pentachlorophenol department 23 you have got exposure^to dust, you don't have that kind of 24 exposure in the chlorophenol Department 237? 67 1 A. That is right. 2 Q. Now, Mr. Carr talked to you about the fact that 3 what Doctor Suskind did here1was compare everything to the 4 presence or absence of chloracne, correct? 5 A. Yes, sir. 6 Q. He said rather than set out all of the individual 7 laboratory results, what he did was compare it to chloracne. 8 Now, do you know another study where that was done, sir? 9 A. It was done in the Nitro population by Suskind. 10 Q. And do you know of another study where that was 11 done? 12 A. The United Steel Workers in Nitro asked Doctor 13 Selikoff of the Mt. Sinai Hospital, University at Mt. Sinai 14 to go to the Nitro Plant and do a study much as Suskind had 15 done at Nitro. Identical study. And Doctor Moses in her 16 report of this'Nitro population in analyzing the results 17 related everything she did to whether there was presence of 18 chloracne or not in the same laboratory studies. The lipids 19 that were done here, the liver profile or the liver test 20 called SGOT, SGPT, GGT, all of those things were done just v 21 the same by Doctor Moses at the Mt. Sinai University just as 22 Suskind did in this study. In other words, if we are trying 23 to show whether working with the dioxins causes an effect and 24 we know that chloracne is an effect, they all do the same 68 \ 1 thing of saying if you don't have chloracne you have 2 different findings than if you do have chloracne. 3 Q. Now, did Doctor Moses recognize a relationship 4 between dioxin exposure and chloracne? 5 A. Yes, sir. 6 Q. And her study actually she compares with chloracne 7 presence or absent a whole range of effects, does she not? 8 A. Yes, sir. Much more broader than there was done in 9 this one. 10 Q. And now when she was retained by the United Steel 11 Workers union to do this study, was she told to your 12 knowledge that* it should be just like Suskind's study or was 13 she told to come in and do a study? 14 A. To do a study. 15 Q. So that as far as we know, the protocol that she 16 used and the analysis that she did were her idea? 17 A. Her study came out before Suskind's. 18 Q. So that when she reported her results, those 19 results were reported before Suskind's results were reported? 20 A. That is right. 21 Q. Let me hand you, sir, what has been marked as 22 Defendants Exhibit 908 and ask you if you can tell me what 23 that is? ' 24 A. This is a report of Doctor Marion Moses with a 69 1 large number from Mt. Sinai, Doctor Lilis, Doctor Crow, the 2 chloracne expert, the dermatologist I have referred to 3 earlier. Doctor Crow is from the U.K. and Doctor Moses in 4 trying to establish whether they had chloracne in the Nitro 5 population or not. She brought over Doctor Crow from England 6 to decide whether they had chloracne. The rest of the group 7 includes Doctor Thornton, Doctor Pischbein, Doctor Anderson 8 and Doctor Selikoff to who the United Steel Workers went and 9 asked for the study. 10 Q. Now those are all listed as authors on the study, 11 are they not, sir? 12 A. Yes, sir. 13 Q. Now, if you look at -- let me ask you this, sir, 14 before we get into that. Was the Department of Medicine and 15 Environmental Health involved in the organization or protocol 16 used by Doctor Moses in her study? 17 A. We were involved but not in the protocol. 18 Q, All right. To what extent? .How was the Department 19 of Medicine and Environmental Health involved in the study? 20 A. They called us and asked us for a listing of those 21 workers who were exposed to 2,4,5-T which is the subject of 22 their study and those workers who had the total population so 23 they could have some comparison between those who worked and 24 those who did not work with the 2,4 trichlorophenoxyacetic 70 1 acid 2 Q. Now, I am a little confused. Let me go back into 3 that. She asked Monsanto for a list of who worked in 4 2,4,5-t ? 5 A. Yes, sir. 6 Q. Or did she ask you to tell her who was exposed to 7 it? 8 A. Those who worked in 2,4,5-T. 9 Q. So, she wanted a list from Monsanto as to everybody 10 that worked in 2,4,5-T? 11 A. Yes, sir. 12 Q. And then she also got a list of the what, the whole 13 plant population? 14 A. Yes. I am not sure how long we cooperated. We 15 were in the process when they came to do their study, we were 16 in the process of setting up for Doctor Suskind to do the 17 same study. And Doctor Suskind had asked us to make this 18 definition and we thought that it was unfair for Suskind, for 19 Selikoff to come in at the last minute and say give me the 20 material that you have been putting together for the last 21 year for Doctor Suskind at his request, so we did cooperate 22 but not completely. We did what we could without 23 interferring with what we had promised Suskind. 24 Q. Now, when you say that you didn't cooperate 71 1 completely, now does that mean that Doctor Selikoff and 2 Doctor Moses had to find out the information on their own? 3 A. Yes, sir. 4 Q. Nov/, how did they do that? 5 A. Through the union records plus talking with the 6 workers. 7 Q. Did you make any plant records available to them? 8 A. I don't think so. 9 Q. So what they did was gone to the union. They went s 10 to the workers themselves in order to find out exactly where 11 they worked and what they did? 12 A. Yes, sir. 13 Q. And so they were not relying in this study on 14 information from you? 15 A. That is right. 16 Q. Now, they examined 226 workers, is that correct? 17 A. Yes, sir. 18 Q. And these are the Nitro workers now. This is not 19 Krummrich This is Nitro, correct? 20 A. Yes, sir. 21 Q. And they made some findings. If you direct your 22 attention to the abstract on the first page, it says that 23 they found a significant increased prevalence of abnormal GGT 24 and higher mean GGT in those with chloracne compared with 72 1 those without? 2 A. Yes, sir. 3 Q. So in the Nitro workers, where they had the severe 4 chloracne? 5 A. Yes, sir. 6 Q. Is that correct? 7 A. Yes, sir. 8 Q. They found higher GGT among those with chloracne 9 than those who did not have it? 10 A. That is right. 11 Q. Now, when Suskind examined the workers at 12 Krummrich, he looked at GGT, too, didn't he? 13 A. Yes. 14 Q. But he didn't find a higher GGT among the chloracne 15 workers than those that did not have chloracne, did he, sir? 16 A. That is right. 17 Q. Now, she said that there were triglyceride values 18 that were higher in those with chloracne but the difference 19 was not statistically significant, isn't that right, sir? 20 A. Yes, sir. 21 Q. Now, tell me if you would what is meant by that? 22 A. This is a study of looking at just triglycerides. 23 Triglycerides are a fat that is found in the blood and there 24 is an interest in it because whether this is associated with 73 1 heart disease or not has not been established. Some say it 2 is and some do not. ,If you went to the doctor and asked for 3 a workup and he was interested if you had a family history of 4 heart disease, at least, he would be interested in whether 5 you had fats in your blood and he would do triglycerides and 6 cholesterol. So this is a study of triglycerides. 7 So they analyze the triglycerides in all of the 226 8 workers and then he compared those who were exposed to the 9 trichlorophenoxyacetic acid. He compared the triglyceride 10 average and compared that with the triglyceride level of 11 those who didn't work and didn't have chloracne with 12 chloracne and without chloracne and then they do a l 13 statistical study. Supposing we had 100 in the non chloracne 14 and in the chloracne they had 101. Is that different? Yes, 15 it is different. Does it have any meaning? You have to dp a 16 statistic on it and say that is not statistically . 17 significant. What they are saying, that is not real. If you 18 did it 100 times in that same population, the `next time it 19 may be low or it may be 105 or 110 as opposed to 100, So 20 what I am saying you can't draw any conclusions if it is not 21 statistically significant. 22 Q. How do they go about finding out whether it is 23 statistically significant? Are there generally agreed to 24 computerized programs and methods for doing that? 74 -1 A. Y e s , sir. 2 Q. When I say agreed to, agreed to by whom? 3 A. The statisticians who are -- there is a general 4 rule. When you are doing a study on one type of study, a 2 5 by. 2 table. This is a standard test. If you do a test on a 6 drug. I have got one group of people and another one is not 7 and then would you have those who do not have exposure and 8 you have got the same kind of results. There is a standard 9 test. It is called a 2 by 2 table that was done here and the 10 2 by 2 table you do what is called a chi squared so each one 11 of these statistical studies have the same kind of what I 12 just said. It is comparing those with and without of an 13 effect, with chloracne or those without chloracne, that have 14 high triglycerides and do not have triglyceride. 15 Q. What in the world is chi squared? 16 A. It is a statistical study that is used to evaluate 17 what I said yes or no between populations. High 18 triglycerides and normal triglycerides as opposed to those 19 who do not have chloracne and have high or low triglycerides. 20 Q. Is it is a mathematical tool? 21 A. Yes, sir. Statistical tool. 22 Q. So'these conventions as they were, as it were, are 23 agreed on by epidemiologists all over the country? 24 A. Every person who takes a course in statistics will 75 1 learn this chi squared test that is used for evaluation what 2 we call a 2 by 2 table. What do you see with and without 3 chloracne is and example of the thing I am describing as a 4 standardized test for looking at such data and they found no 5 statistical effect means it is not real at least in that 6 study. 7 Q. That is what is important about an epidemiological 8 study. It tells you what is significant and what isn't so as 9 to try to see if there may be a correlation? 10 A. That is right. 11 Q. A cause and effect relationship. An 12 epidemiological study does not establish a cause and effect 13 relationship, does it? 14 A. No. 15 Q., But it may demonstrate a correlation that should be 16 investigated? 17 A. Yes, and if it is not statistically different, then 18 you say that it is obvious there was no correlation on that 19 one. Now if you get a positive, that doesn't mean there is 20 an association. You should repeat it in some other study to 21 find out whether it is real. Because if it is real and 22 associated with chloracne, then everytime you do a study on, 23 another population with chloracne it should always be high. 24 Q. So the same thing ought to show up all the time? 76 1 A Yes, sir 2 Q. If it is indeed going to be correlated with 3 exposure to a particular toxin, is that right? 4 A. That is right. 5 Q. You ought to see thesame thing all the time? 6 A. Yes, sir. 7 Q. Now, she did apparently a neurologicalexamination, 8 didn't she? 9 A. Yes, sir. 10 Q. And she said that at Nitro, the neurological 11 examination showed a statistically significant higher 12 prevalence abnormal sensory findings in those with chloracne, 13 correct? s. 1 14 A. Yes, sir. That means she did another chi squared 15 test. The standard test to looking for an association between 16 two effects like this. 17 Q. So, that with those people that had chloracne, she 18 found that they also had a statistically significant number 19 of neurological findings? 20 A. Yes, sir. But it is very specific which ones she 21 is talking about. There was only one neurologic test that . 22 was positive. 23 Q. All right. What was that, sir? 24 A. That was sensory change. It does describe abnormal -- :-------------------------------------------------------------77 1 sensory changes on the physical examination. 2 Q. Sof that is by sensory change. You mean whether 3 you can -- 4 A. They just take a piece of cotton. ,Maybe you have 5 had a neurologic test and the sensory test, they will take a 6 piece of cotton and test the skin to see if you have lost 7 your sensation or they will take a pin, not hard. In 8 addition to that they will take a pin to see if you have any 9 change. This is done on people who have a variety of 10 neurological diseases. 11 Q. All right. Now, they found that if there was 12 chloracne present, there was a statistical number of sensory 13 change. People who have that sensory change? 14 A. Yes, sir. 15 Q. But where chloracne was not present, then they did 16 not have it, is that right. 17 Q. Well, not as much. 18 Q. All right. So there wasn't as much of it? 19 A. That is right. 20 Q. As there was in those who had chloracne so they 21 found or she found a positive relationship between the 22 presence of chloracne and that neurological change? 23 A. Yes, sir. 24 Q. That one sensory change. Okay. Now, she said that 78 1 there was an'increased prevalence of -- I have never known 2 how. Is it angina or angina? 3 A. Angina. 4 Q. Angina is a pain in the heart, right? Pretty 5 crude. 6 A. It is a pain associated with heart disease and if 7 the pain in the chest is related to the heart, then we call 8 it angina. If it is pain in the chest that clearly is not 9 associated with the heart, then we call it non anginal pain. 10 Q. Okay. Now, they found an increased prevalence of 11 angina and reported myocardial infarction in those with 12 chloracne was not significant when age adjusted? 13 A. Yes, sir. 14 Q. What does that mean, sir? 15 A. Well,, if you do a study on the population of age 20 16 and you didn't have any angina, you couldn't draw any 17 conclusion of it. And what they are staying is, when they 18 took these workers and decided and compared them by age 19 rather than just as a group, they compared those, if one has 20 angina and the other one doesn't, you have got to compare 21 them with those at the same age, at the age of 50, so you 22 have another way of looking at this. They divide both 23 populations into age distribution so that you compare apples `24 with apples rather than apples with oranges. They compare 79 1 those 40 years old who didn't have chloracne with those of 2 that same age who did have chloracne. And that is different 3 than other studies where there is no age related effect* So, 4 each group was subdivided and corrected for age. Corrected 5 means compared those at the same age group. 6 Q. Now, why would you^do that with angina? Is it 7 because it is an age related disease? 8 A. Yes, sir. And if you had one group that was age 20 9 and the other age group that was 60, you would be looking for 10 an age related effect rather than looking for the effect of i 11 chloracne on the anginal effect. 12 Q. In other words, you wouldn't expect to find it in 13 people that are 20 so it isn't fair to compare that group 14 with a group that is 60 where you would expect to find it in 15 the general population? 16 A. That is right. 17 Q. All right. Now, when somebody goes into a study 18 like this, Doctor, do they set up their protocol before they 19 ever see any people or take any tests or do any examinations? 20 A. Yes, sir. Everything you are going to do in an * 21 epidemiologic study, every detail has got to be spelled out 22 and written down so that there is no breaking from the 23 procedure that* is set up. If you want to add something to 24 it, you really shouldn't call it part of that study. So, it 80 1 should be very clearly spelled out exactly what you want to 2 do in the evaluation of those groups and the other part of it 3 is the group that you are going to call the study group has 4 got to be well defined. You can say, for instance, in this 5 one, if they say we are going to study those workers exposed 6 to the trichlorophenoxyacetic acid, how long, are you going 7 to include those who worked one day, one week, one month, one 3 year, at least that long? And if you take those only worked 9 one day, you are not trying to find out whether that material 10 caused an effect or not. You have to include those who have 11 had enough exposure so that you wouldn't miss it. So, you 12 have got to be very careful. 13 So usually it will describe one month, six months 14 or a year as a minimum amount of exposure before you can go 15 into the exposed group. You don't want to study a group that 16 has only had a few days because you are not studying whether 17 it has effect or not. You have to have enough exposure so if 18 it i's there you wouldn't miss it. 19 So that protocol has to be so specific on what you 20 are going to call going into the exposed group. 21 Q. And then once the protocol is established and you 22 have got the guidelines and the rules whereby everything is 23 going to fall into place, then the data falls wherever it 24 falls? 81 1 A. That is right, 2 Q. Is that right? 3 A. Yes, sir, 4 Q. And you can't start adjusting the criteria after 5 you start getting the data in? 6 A. No, sir. 7 Q. So that you set all the rules and then you start 8 doing the interviews, take the physicals, do thelab studies 9 and then you find out where it all comes out andyou never 10 know going in how it is going to turn out, do you? 11 A. You haven't the slightest idea. The doctor who did' 12 the examination on each of these 226 and he said I am seeing 13 some people who have had angina and the doctor says well, I 14 wonder if there is an association, whether the chloracne or 15 the exposure was causing it and he will say I can't tell 16 because I am not sure who had exposure or not because the man 17 who does the examination doesn't care who had exposure. He 18 is only trying to find out whether they have gotheart 19 disease or not so he knows what each man has gotbut he can't 20 mentally say I have seen 10 people who have angina in this 21 group and 15 in that group who have had angina because you 22 can't keep all of that in your mind. So all he does he fills 23 out the form and then somebody takes that computer data and 24 puts it into the computer and it comes out saying in this 82 1 case increased prevalence of angina and reported myocardial 2 infarction. There was more angina and myocardial infarction 3 than those who had exposure but it was 98 versus 100 in the 4 non exposed group. 5 Q. So, you are using those numbers you are saying as 6 an example? 7 A.' I am back to the same place. They looked at those 8 and there was instead of expecting 100 they had 105 and they 9 went and put back in that statistically model and says that 10 could happen by chance. If we did it another time it would 11 be the same or lower or something. The difference has no 12 meaning significantly. 13 Q. And that is determined by the computer program? 14 A. Right. 15 Q. Now, so the person that is actually doing the 16 examination doesn't know at the time who the exposed person 17 is and who isn't? 18 A. No. He should not know. 19 Q. And so he just gathers the data? 20 A. Yes. 21 Q. He just gets the lab results and this person may do 22 a physical exam, that person may do the interviews and so 23 that nobo.dy knows whether or not there is any correlation? 24 A. In the ideal study, that is the way it is. \ 83 1 Q. Until somebody puts it all together in the computer 2 later on? 3 A, Yes, sir. 4 Q. Now, she also says here that there was an increased 5 prevalence of reported sexual dysfunction and decreased 6 libido in those with chloracne compared to those without. 7 And it was statistically significant after age adjustment, is 8 that right? 9 A. Yes, sir. 10 Q. So she found that the people that had chloracne 11 from their exposure did have a higher amount of reported 12 sexual dysfunction and decreased libido than those who did 13 not have chloracne, correct? 14 A. Yes, sir . 15 Q. And it was statistically significant? 16 A. Yes, sir, and it was age corrected because it has 174 to be. Because the sex function is related to age and so age 18 adjustment had to be done just as in the myocardial 19 infarction. 20 Q. But she did say no differences were found between 21 those with and without chloracne, with respect to serum 22 cholesterol, total urinary porphyrins, or in reproductive 23 outcome? 24 A. Yes, sir. 84 1 Q. Correct? 2 A. Yes, sir . 3 Q. . So, Doctor Moses said when she examined her Nitro 4 population, that there wasn't any difference in urinary 5 porphyrin between those that had chloracne and those that did 6 not? 7 A. That is right. 8 Q. Correct. Now, what conclusion would one draw from 9 that statistic? 10 A. This again was done by comparing those with 11 chloracne with those who did not have chloracne. That is all 12 she did in all of her studies. She said that in those who 13 didn't have chloracne as compared to those who did have 14 chloracne, there was no difference in the urinary porphyrins 15 between those 2 groups. In other words, whether they had 16 chloracne or not had no effect on porphyrins. That means 17 even with a bad chloracne, those with gross disfiguring 18 chloracne after 30 years and they are still there, there are 19 50 percent of that, group that had the, 50 percent of those 20 who ever had chloracne at Nitro still had chloracne 30 years 21 after exposure. And despite that bad effect and still being 22 persistent, they could find no effect on urinary porphyrins. 23 Q. Now, Mr. Carr was talking to you yesterday about 24 the porphyrins, the porphyrin results in the Krummrich study, 85 1 correct, sir? 2 A. Yes, sir. 3 Q. Now, he wanted to know, as I recall, whether or not 4 Doctor Suskind ever said that those porphyrin results which 5 he set out in that second draft should not be considered 6 because they were not 24 hour porphyrins. Do you remember 7 that? 8 A. Yes. 9 Q. Now, as I recall, sir, there were 2 drafts that 10 have been in evidence, is that right? 11 A. Yes, sir. 12 Q. Now, those drafts relate to the Nitro study by 13 Doctor Suskind, is that right? 14 A. Yes, sir. 15 Q. And one, I am trying to get the exhibit number 16 here. Now, Plaintiffs' Exhibit 1479 is a letter to Doctor 17 Suskind from you, correct? 18 A. Yes, sir. 19 Q. Attaching your comments on the first draft of the 20 Nitro health or morbidity study that Doctor Suskind did, is 21 that right? 22 A. Yes, sir. 23 Q. Now, Plaintiffs' Exhibit 1483, as I understand it, 24 is a copy of the second draft? 86 1 A. Yes, sir. 2 Q. By Doctor Suskind? 3 A. Yes, sir. 4 Q. Is that right? Now, to your knowledge, sir, did 5 you ever see subsequent to this document 1483, a copy of what 6 Doctor Suskind submitted for publication? 7 A. No, sir. 8 Q. So that whatever happened, after you saw this, he 9 wrote up whatever it was that was published? 10 A. Yes, sir. 11 Q. Now, in that process, that was a peer reviewed 12 publication, correct? 13 A. Yes, sir. 14 Q. Now, that means that he was submitting it to the 15 Journal of the American Medical Association? 16 A. Yes, sir. 17 Q. And what would they do with it once he submitted 18 it? 19 A. Well, the American Medical Association would find 20 some expert in some phase of this study to whom they would 21 send the last -- that what Suskind had submitted and they 22 would go through it and decide whether it was too long or too 23 short or some of the conclusions weren't valid or whatever. 24 So, there is sometimes there is 2, sometimes there is 3, 87 1 sometimes there is 5 reviewers who will go over and decide 2 whether what is in there is correctly stated or whether it 3 can be substantiated or not. So the attempt is to try to 4 make what goes into the literature be as correct as possible. 5 Q. Now, on a peer reviewed journal, they take whatever 6 the person submits and they send it out to reviewers anywhere 7 from 1, 2 to 5 and those people look at it for its entire 8 content? 9 A. Yes. 1 Q. To make sure it is scientificly valid? 11 A. Yes. Grammatically. Everything about it is 12 subject for editorial comment. 13 Q. They may pick out words, they may say it is too 14 long, too wordy? 15 A. Too many charts, not enough charts, anything. 16 Q. They may make all kinds of corrections like that 17 but they also look at the conclusions that are reached. They 18 are picked because of their scientific knowledge in the field 19 that the paper covers? 20 A. That they can evaluate what is written. 21 Q. Okay. Now, they submit their remarks to the 22 publisher in this case, the Journal of the American Medical 23 Association, correct? 24 A. Yes, sir. 88 1 Q. Now, are those remarks communicated to the person 2 that submitted the article? 3 A- Yes. 4 Q. So that he can change it if he wants? 5 A. Otherwise he wouldn't get it published. 6 Q. So if he doesn't change it to the way these remarks 7 come out, they may not publish it? ' 8 A. It depends. The editor has a right to decide. 9 Maybe Suskind had something valid that the editor, the one 10 who had read it may not have had in his possession. So, it 11 is, there is a review that goes on with the editor being the 12 final decision maker. 13 Q. Now, they don't identify to the submitter of the 14 paper the people, the identity of the people who did the 15 review, do they? 16 A. No, sir. 17 Q. So what he gets back are anonymous comments? 18 A. Yes. 19 Q. On his paper? 20 A. Yes. 21 Q. And then he makes adjustments or elects not to and 22 then resubmits it and the Journal of the American Medical 23 Association either publishes it or they don't? 24 A. That is right. 89 1 Q. That process took place without you knowing 2 anything about itf is that right? 3 A, I know it had been submitted but I didn't know what 4 took place. Besides the fact that it had been submitted. 5 Q. And you never saw any of the comments, did you? 6 A. No, sir. 7 Q. You never sawwhat was submitted? 8 A . No ,sir . 9 Q. You don't knowwhether it was changed? 10 A. No, sir. 11 Q. Or if it wasr the.extent to which it was changed? 12 A No, sir. 13 Q. All you do is see it after it is published? 14 A. Yes, sir. 15 Q. You know that what was published was different from 16 this? 17 A. Yes, sir. 13 Q, It could be, could it not? 19 MR. CARR: Your Honor, I object to the speculation 20 that counsel is now going to engage in. The witness has said 21 that he has no knowledge whatsoever. 22 THE COURT: Objection sustained. 23 Q. Well, you don't know, sir,'do you? You don't know 24 whether or not any reviewer gave the doctor a comment that 90 1 would cause a change? 2 A. No, sir, 3 MR. HEINEMAN: Your Honor, I see it is almost 12 4 o'clock, if this would be a good point with the court. 5 THE COURT: Fine. Okay. Ladies and gentlemen, we 6 will break for lunch at this time. We will resume again at 7 one o'clock. The admonishments that I have given you earlier 8 will apply during this lunch break also. Court is in recess 9 for lunch. 10 COURT RECESSED: 11 (The following proceedings were had in the hearing 12 and presence of the jury) 13 GE0RGE__RQI1SH 14 having resumed the witness stand, being previously sworn, 15 testified further as follows: 16 CLARIFICATION EXAMINATION 17 By 18 MR. KENNETH R. HEINEMAN. 19 Q. Doctor Roush, back when you first began to testify 20 in this case and I think May 29th or 30th or something like 21 that, Mr. Carr questioned you about your background, your 22 professional training and that sort of thing and I would like 23 to ask you a few questions about that. My recollection is 24 that you got your Doctor of Medicine degree from Washington ---------------------- 1--1,------------------------------------91 1 University in St. Louis in 1951? 2 A. Yes, sir. 3 Q. Is that right? 4 A. Yes, sir. 5 Q. And thereafter what did you do? 6 A. I went up to Milwaukee for an internship.' Had a 7 rotating internship at Milwaukee County Hospital, the 8 teaching hospital for Marquet University. At that time was 9 Marquet and after one year at Milwaukee, I went to Pittsburgh 10 and had a year of academic training in occupational medicine 11 which includes instruction in occupational medicine, 12 industrial hygene, toxicology, epidemiology, biostatistics, 13 public health practice, to name a few. The following year -- 14 and I got an MPH degree, Master of Public Health from the 15 University of Pittsburgh with a specialty in occupational 16 medicine. 17 The subsequent year I spent with a fellowship from 18 the National Heart Institute and I -was doing experimental 19 work on the effect of heart failure on cardiac metabolism in 20 the normal and failing heart using the dog. I spent a year 21 doing this. And following that year, this is now.in 1954, 22 1954 to 1955, I was at the National Cancer Institute in 23 chemotherapy for cancer and I spent a year in that training. 24 Q. Sir, I would like to ask you about that National 92 1 Cancer Institute training, if I might. You were studying the 2 treatment of cancer with chemotherapy? 3 A. Yes, sir.' 4 Q. Is that right? Chemotherapy uses highly potent and 5 toxic drugs, does it not? 6 A. Very toxic drugs. 7 Q. What was it that you were doing in your research 8 with respect to those toxic drugs? 9 A. The National Cancer Institute would bring people 10 into the clinical center so that they could explore and 11 evaluate new drugs in the treatment of all types of cancer 12 and leukemia and they would use that so that they could 13 provide guidance to physicians on whether there is a better 14 treatment than those drugs that were being used up until that 15 time. 16 Q. And your work was to monitor the effects of these 17 drugs? 18 A. Those patients that were admitted to the hospital 19 with diagnosed leukemia including infants, earliest child I 20 took care of was a 6 year old baby with leukemia. We 21 evaluated leukemia and what we would do is we would give a 22 drug and we would do a surveillance procedure much as was 23 used in our evaluation of chloracne, whether there are 24 adverse effects that are seen with chloracne. Only we are 93 1 using very toxic materials so that when we would give one of 2 these chemicals, at that time we would put it in the syringe, 3 have an IV flowing into the patient, put on gloves to protect 4 myself and not inject it into the patient but inject it into 5 the IV tubing so that none of it would get on the patient 6 because they could get a bad blister, a bad blister if one 7 drop of that material would get on the skin. So we were 8 dealing with extremely dangerous materials and we were 9 looking to see if there was any adverse effect of the drug. 10 That is a difficult decision to make even with those sick 11 patients because they were so sick from their cancer and 12 leukemia and if you are going to have -- you see a man who is 13 very sick with cancer and we give them this chemical and he 14 would start complaining of his ears, we couldn't decide, we 15 had to decide whether that pain in his ear was related to the 16 drug or was related to the disease process. So, that 17 evaluation is a very difficult clinical decision to decide 18 whether any effect is related to the man itself with what he 19 has or whether it is related to something that has to be 20 imposed on him. 21 Q. But that was done under the auspices of the 22 National Cancer Institute? 23 A. Yes, sir. 24 Q. And that was done in 1954 and 1955? 94 1 A. Right, And those were well defined protocols on 2 what the treatment was going to be done. How they would look 3 for it and what adverse effects they would be looking for. 4 Q. Now, thereafter, sir, did you remain at the 5 University of Pittsburgh? 6 A. No. This was at the Cancer Institute in Bethesda, 7 Maryland. The National Cancer Institute is a part of the 3 clinical center of the National Institute of Health at 9 Bethesda, Maryland. After a year doing surveillance of cancer 10 patients, I went off and took a year in internal medicine 11 residency at the Staten Island Marine Hospital in Staten 12 Island, New York. After that year I went to the University 13 of Pittsburgh and took another year.of residency in internal 14 medicine and that took me up to 1956. 15 Q. All right. Now, there came a time when you joined 16 the faculty at the University of Pittsburgh, isn't that 17 right? 18 A. Following my completion of that year I joined the 19 faculty at the University of Pittsburgh as an assistant 20 professor in occupational medicine and clinical instructor in 21 internal medicine. 22 Q. And how long did you hold that position, sir? 23 A. Until 1962. 24 Q. That was about 5 years? 95 1 A. Yes, sir. 2 Q. And there came a time when you became board 3 certified in occupational medicine? 4 A. Yes, sir. 5 Q. And when was that? 6 A. 1965. 7 Q. Now, at some point you became connected with the 8 Kettering Institute at the University of Cincinnati? 9 A. Yes, sir. 10 Q. Now, when did that occur, sir? 11 A. 1962. 12 Q. All right. So after you left the University of 13 Pittsburgh you went to Kettering Institute? 14 A. I took a year off to go to the University of 15 Louisville where I was doing cardiac catheterization. 16 Q. And I believe you said that Doctor Suskind was not 17 with that organization when you were there? 18 A. No, sir. Doctor Kelow was the director of the 19 laboratory at that time. 20 Q. All right. So it is accurate that Doctor Suskind 21 was not there? 22 A. That is right. 23 Q. Now, what did you do at Kettering, sir? 24 A. I was responsible for teaching the physicians who 96 1 were in their training for occupational medicine. I was 2 responsible for their clinical training in occupational 3 medicine. That means I taught them how to do surveillance of 4 workers with exposure to whatever the toxin that might be in 5 the environment. 6 Q-. And so you did that in your teaching. That was the 7 clinical work. Did you thereafter have any work in 8 connection with porphyrins? 9 A. As a part of my responsibility as clinical 10 director, we were required to look at the analyses for urine, 11 for a number of chemicals that someone may ingest, someone 12 took aspirin, someone took sleeping pills. We would look at 13 the data, the analytical results to decide whether the amount 14 of material present in their blood, urine, or vomitous and 15 decide whether the clinical status of that patient was or was 16 not consistent with the level of whatever the chemical was 17 that we measured. Now, included in that was porphyrin 18 analysis. And for the City of Cincinnati, the Kettering 19 Laboratory were doing the urine porphyrins and so every 20 report that came back as I would interpret whether the 21 porphyrin results were normal or abnormal and if it was 22 abnormal, what it was consistent with. Whether it was acute 23 intermittent porphyria or one of the other definite 24 porphyrias that are well recognized. So we did that on a 97 1 regular basis. Then because we were at the University of 2 Cincinnati, the Kettering Laboratory was founded for the 3 study of the effect of lead on man and so they had recognized 4 the ability of lead in blood and so almost the entire 5 industry in the United States would send their blood samples 6 to the Kettering Laboratory to see whether they had more lead 7 in their blood than would be expected or whether it was high 8 enough so that man could be sick so we had to evaluate that. 9 Since lead also -- not only does it accumulate in 10 the blood, but one of the earliest effects of lead is to 11 change the porphyrin levels. So for this 5 or 6 years I 12 spent at the Kettering Lab, we regularly had to report back 13 on the porphyrins in the workers who were exposed to lead if 14 they were submitted as well. So we would draw correlations 15 between the lead in blood and the urinary porphyrins and what 16 happens is, in lead exposure, the coproporphyrins go up. So 17 much so historically what would happen is those who couldn't 18 do the analysis for porphyrins would take them up and have 19 all the workers exposed to lead, they would have a bottle or 20 tube with the urine in it and all you had to do was put a 21 florescent light behind it and any one of those men who had 22 an excess of porphyrins would show what with the florescence 23 of this tube and just based on 1, 2, 3, 4, plus, they could 24 decide by looking at those which one of those had to be taken 98 1 off from exposure so there is a very good correlation between 2 the urinary porphyrins and the degree of man's exposure to 3 lead. 4 So those two experiences are one that is described 5 what I have done on porphyrins. 6 Q. The porphyrin has to do with hemoglobin formation, 7 is that right? 8 A. Yes, sir. We all make hemoglobin and there is a 9 series of steps that are required to take a very simple 10 substance in the blood and we convert that into what is 11 called heme and heme is a chemical to which we have iron 12 attached and that is what carries the oxygen. The iron in 13 the heme is what enables us to live because the oxygen is 14 being carried to ,our body by this heme to which the oxygen 15 was tied. In the process of making that, you start out with 16 a chemical called delta aminolevulenic acid. Next step is 1 1 porphobilinogen and the next step is uroporphyrin and down 4 18 steps later is called coproporphyrin and all of those steps 19 are required to go through to make heme that becomes 20 hemoglobin. Hemoglobin is what we have to keep us from being 21 anemic and so in lead exposure, lead blocks the making of 22 coproporphyrin. It also causes a block or it stimulates the 23 production of that delta aminolevulenic acid and it also 24 causes a block in keeping from that delta aminolevulenic acid 99 1 to going to the next step so this well described places where 2 porphyrins can be effected by chemicals. And the lead that 3 has been so widely established, it is well defined where the 4 adverse effect is. 5 Q. Doctor, I am interested in that portion that you 6 have just said relating to there being a specific place where 7 a chemical has an effect on the porphyrins. Do I understand 8 you to say that any particular chemical will affect the 9 porphyrin chain at one specific spot or am I misunderstanding 10 you? 11 A. No, sir. You are exactly right. I have described, 12 they are well defined for lead and there is a number of 13 different places where lead acts so that is well described. 14 Now, in the disease that is called acute intermittent 15 porphyria is a disease* that is genetic and those people that 16 have this genetic defect will get quite, along quite well. 17 And then they will take some drug or some chemical and the 18 one we talk about is Pehnobarbital. It is a drug. And the 19 Phnobarbital has been used very broadly in medicine without 20 any adverse effects at low levels but you give a person who 21 has a genetic defect of acute intermittent porphyria and 22 their uroporphyrins come up and they become acutely ill and 23 may die from that effect so you have to keep them alive long 24 enough to stop giving them the drug and then over a period of 100 1 days to weeks to even months because there are some 2 neurologic effects. It will take that long for it to wear 3 off. The drug will come out and then their porphyrins will 4 fall back to a normal level and they become normal again. 5 Q. Now, so that the Phnobarbital will intercept this 6 chain of biochemical event where there is a change from one 7 type of porphyrin to another at a particular spot? ' 8 A. Yes, sir. When they would send the urine to nie for 9 analysis at Cincinnati and say do an analysis for 10 uroporphyrins or for porphyrins and we would get back, if the 11 man had an elevation of uroporphyrin and he had the syndrome 12 I have just described to you, then I would say yes, his 13 uroporphyrins are related to h\is acute intermittent 14 porphyria. If his coproporphyrins were up, it could not be 15 related to his finding of acute intermittent porphyria. 16 Q. So that a chemical, as I understand what you are 17 saying, would not have a variety of effects so that in one 18 instance uro may be up and in another copro may be up and 19 another it may be heptacarboxylic and another it may be. 20 hexacarboxylic. Rather, a chemical will have an effect? 21 A. Yes, sir, and if he doesn't have it, it wouldn't be 22 that disease. 23 Q. Nov/, when you left Kettering, you then went on I 24 think you told Mr. Carr to Tulane University Medical School? 101 X A. Yes, sir. 2 Q. And that was in 1968? 3 A. Yes, sir. 4 Q. And what were you doing there, sir? 5 A. I was Professor of Medicine and I taught both 6 internal medicine as well as environmental medicine. 7 Q. And for how long did you do that, sir? 8 . A. Until 1973. 9 Q. At which time you joined the Monsanto Company 10 Department of Medicine and Environmental Health? 11 A. When I went there it was called the Department of 12 Medicine. Subsequently it was changed to Medicine and 13 Environmental Health. 14 Q. And you became director of that department in what 15 year? 16 A. 1974. 17 Q. Now, I would like to take you back, if I may, to 18 Defendant's Exhibit Number 908 which is the Marion Moses 19 study and I would like to talk about her examination of 20 porphyrins. 21 A. Yes, sir. 22 Q. Do you have that before you? 23 A. Yes, sir. 24 Q. Would you explain to the jury what Doctor Moses did 102 1 with respect to the porphyrin analyses that she did? 2 A. She collected urine from each one of these people 3 who are part of her study and she did not collect 24 hour 4 urines, she used spot samples for her analysis. 5 Q. All right. Now, was she able to do anything with 6 those spot samples? 7 A. To begin with, a spot sample of urine will have the 8 different constituents in it dependent on how much water a 9 man has drunk. If you drink a fair amount of water when you 10 are hot, the urine will have diluted and look like water. I 11 Collected overnight, the urine will have a very distinct 12 color, a very yellowish color which is more concentrated. 13 That degree of concentration reflects all of the things that 14 are found in that urine and the concentration of the 15 proteins, the sugar if there is any in it or any of the other 16 constituents, all of the electrolytes will be excreting urea 17 nitrogen in our urine, we are excreting electrolytes in our 18 urine. All of those things are put out in a rather constant 19 stream but the concentration is dependent on how much water 20 there is and the amount of water that is there is independent 21 of how many electrolytes, urea nitrogen or the other things 22 we are talking and that includes porphyrins. The porphyrins 23 that appear in the urine will be dependent on how diluted the 24 urine is. So, in order to correct for the different 103 1 concentrations that obviously are there, Doctor Moses took 2 those numbers and corrected them to try to bring them into a 3 closer, more concentrated and understandable concentration, 4 Q. Now, there was a good deal of conversation between 5 you and Mr, Carr yesterday with respect to spot urine or spot 6 porphyrin analyses versus 24 hour porphyrin urine specimens. 7 Now, is it a fact, sir, that you can make a determination 8 with respect to a spot porphyrin, I am not using the right 9 term. With a one shot urine sample that isn't a 24 hour 10 sample? You can do something with that but you have to do 11 certain adjustments to it, is that what you are saying? 12 A. Yes, sir. 13 Q. 14 here? 15 A. All right. Now, is that what Doctor Moses did Yes. She stated so. 16 Q. Nov/, what is the adjustment that has to be done? 17 A. You have to correct it for the creatinine that 18 appears in the urine. The amount of creatinine that all of 19 us put out in our urine is dependent only on one thing, our 20 muscle mass. Our muscle is continually breaking down and the 21 breakdown of product that appears in all of our urine 22 everyday is called creatinine and it is related to the muscle 23 mass. If you have got lots of muscle mass, you put out a lot 24 more creatinine. If you have less muscle mass, you put out 104' 1 less. So, the creatinine that you put out everyday is 2 dependent on muscle mass and we have to estimate that because 3 we can't measure it directly. A woman puts out less 4 creatinine than does man. All right. Based only on that, 5 that the amount of creatinine is relatively constant for each 6 one of us, that number is a set and was well recognized and 7 how you get to that is from 20 to 26 milligrams of creatinine 8 is put out by each one of us for every kilogram of body 9 weight. So, the way what you do is there is a creatinine 10 that is listed in these results. That creatinine that is 11 listed in the urine is the amount that appeared in that spot 12 sample. So what you have to do, this is very complicated but 13 you take that what was'observed in the urine and these spot 14 samples and you divide it into how much you should be putting 15 out per day and if your urine is very dilute and there wasn't 16 very much creatinine in that urine, then it is a very small 17 part of the amount that you excrete per day and so you have 18 to multiply by that amount that is down. That gives you the 19 correction for the creatinine. Then you take that creatinine 20 corrected and multiply it times the level of porphyrin that 21 appeared in that spot sample and that is called the corrected 22 porphyrin based on creatinine. That is pretty complicated 23 but those are the steps you have to go through before you can 24 say that you corrected for it. 105. i 1 Now, even when you do that, you have to recognize 2 as I have told you it was a range from 20 to 26 for most of 3 us in the amount of milligrams because all it does is it is 4 an estimate, a better estimate than is a spot sample. It is 5 not nearly as good as a 24 hour urine for porphyrin. 6 Q. All right. So the best thing you can do to measure 7 porphyrins is to have a 24 hour urine sample? 8 A. Yes, sir. 9 Q. The one thing you can't do is to analyze or 10 diagnose porphyrins based only on the micrograms per liter 11 spot sample? 12 A. You can't use that. You can't use the spot sample 13 results. 14 Q. Alone? 15 A. By itself. 16 Q. So, if you don't have a 24 hour' urine sample, then 17 the only way to make any judgment about the porphyrins is to 18 take the micrograms per liter spot sample and perform this 19 mathematical treatment of it? 20 A. Yes. And if you do, and try to compare it with the 21 actual measured 24 hour, you compare that mathematical thing 22 I have just said using a spot sample and compare it with the1 23 24 hour, it will approximate it but wouldn't be the same as. 24 Q. So, it wouldn't be as good as a 24 hour urine 106 1 sample? 2 A. No, sir . 3 Q. And it will be approximately -- 4 A. Yes. 5 Q. What the 24 hour will show. All right. Andf 6 Doctor Moses reached conclusions in this article and in this 7 study about porphyrins by performing the correction for 8 creatinine? 9 A. Yes. \ 10 Q. All right.. Now, it is possible, is it not, that 11 Doctor Suskind could perform the same kind of mathematical 12 correction on the porphyrins if he thought it was important 13 to do that, isn't it, or is this the data there in the 14 record? 15 A. I was trying to think. Creatinines are here. 16 Q. Well, let me ask you about that. If the 17 creatinines are there, do you have to have a normal range, 18 reference range, for creatinines from the laboratory in order . 19 to do that? Do you have to be able to tell exactly what the 20 creatinine level is in order to do that? 21 A. You can't talk about normal and abnormal unless you 22 do some statistical manipulation of results themselves. In 23 trying to establish your own range and what would be called 24 out of a range just by virtue of somebody being in the top 107 1 two and a half to five percent. But I know of nothing where 2 I have seen published a normal range for corrected urine 3 porphyrins. 4 Q. All right. What I am getting at, in order to do 5 the creatinine correction that you are talking about, what do 6 you need to be able to find in the laboratory report with 1 respect to creatinines? 8 A. The creatinine is in there. And all you need to do 9 is to compare that with the expected creatinine clearance 10 from each person and that will give you a number. Supposing 11 the amount of creatinine that you put out each day is 4,'and 12 the concentration, the amount that is in the spot urine was 13 one, then that means that you had to have 4 times the amount 14 of creatinine as there was in that little sample. So you say 15 it was low by a factor of 4. You take that 4 ^and multiply it 16 times the observed porphyrin level to find the corrected 17 porphyrin. 18 Q. It is that, it is just that simple. All you take 19 is that ratio? 20 A. Yes. 21 Q. Now, Doctor Moses' study was published when, sir? 22 A. In 1984. 23 Q. Did it precede the publication of Doctor Suskind's 24 study? 108 1 A. I think so. 2 Q. Now, in these documents that we were looking at 3 just before lunch, Doctor Moses' study was done in 1979? 4 A. Yes, sir, just before the Suskind study. 5 Q. And Doctor Suskind*s study was done in 1979? 6 ' A. Yes, sir. 7 Q. They were both published in 1984? 3 A. Yes, sir. 9 Q. Now, with respect to what -- before Doctor 10 Suskind1s Nitro study was published, this is the health, the 11 morbidity study that we are talking about? 12 A. Yes, sir. 13 Q. You had received an Exhibit 1479 which is right 14 here, sir You had received a draft, is that correct? 15 A. Yes, sir. 16 Q. Now, when you got that draft, you made comments on 17 it and you sent those comments back to Doctor Suskind? 18 A. Yes, sir. 19 Q. Correct. One of the comments that you made related 20 to porphyrins, isn't that right, sir? 21 A. Yes, sir. 22 Q. And what comments did you make at that time? 23 A. On page 3 it states urinalysis included routine 24 examination as well as coproporphyrin and uroporphyrins. And 109 1 my comment was the porphyrin findings were not reviewed in 2 the report. All I was saying, if you did them, put them in 3 the report. That is what I was telling him. 4 Q. So your comment was that if you are going to 5 discuss porphyrins, then include them? 6 A; That is right. 7 Q. Put the figures in? 8' A. Yes, sir. 9 Q. Now, in 1982, I think you said, you received a 10 second draft which is Plaintiffs1 Exhibit 1483, is that 11 right, sir? 12 A. Yes, sir. 13 Q. And Mr. Carr was asking you about the porphyrin 14 values stated in that report, was he not? 15 A. Yes, sir. 16 Q. And there was a certain page at which those 17 porphyrin results were set out, is that correct? 18 A. Yes, sir. 19 Q. Now, I am not finding them. Was there a blowup of 20 1483A? It was table 35 on page 77 of that document but the 21 jury I believe has 1483A which is the page you and Mr. Carr 22 were referring to. Isn't that right, sir? 23 A. I don't know whether they got a. copy of it or not. 24 MR. CARR: They got a copy of it. 110 1 Q. And that document sets forth certain statistics, 2 does it not? 3 A. Yes, sir. *4 Q. Now, does it state the lab results themselves? 5 A. No, sir. 6 Q. Okay. The laboratory results were contained in 7 these respective reports here which are Plaintiffs1 Exhibit 8 1504, correct? 9 A. No. These are for Krummrich. 10 Q. I am sorry. The laboratory results were set forth 11 in the actual lab data itself. I mean there isn't any lab 12 data set forth here, is that right? 13 A. No, sir. 14 Q. And have you seen those laboratory results on the 15 Nitro morbidity? 16 A. Some of them. I have looked at some of them. 17 Q. Some of them. Now, do those laboratories list 18 those porphyrin, results as being abnormal? 19 A . No, sir . 20 Q. What they do tell you is that they can't really say 21 they have got spot urine samples, right? 22 MR. CARR: Counsel, unless you know that to be a 23 fact, don't suggest it to the witness. I object to it. 24 MR. HEINEMAN: I will ask him. Ill 1 THE COURT: I didn't hear the last part. 2 MR. CARR: There isn't any such thing. They are the 3 same kind of reports that we have in the Krummrich study. 4 They don't say anything at all like Mr. Heineman has 5 suggested to .the witness and I object to the form of the 6 question. 7 THE COURT: Could the two of you approach the bench 8 with one of the lab reports, please. 9 MR. CARR: We don't have one here from the morbidity 10 study, Your Honor. What we have here .is the lab report from 11 the Krummrich study, not the Nitro study. 12 MR. HEINEMAN: Well, I will accept that. If it is 13 set forth as Mr. Carr claims, the same as they are in the 14 Krummrich study, fine. 15 MR. CARR: I don't claim that, counsel. That is a 16 fact. 17 MR. HEINEMAN: You don't claim it to be a fact? 18 MR. CARR: I don't claim it, sir. It is a fact. 19 MR. HEINEMAN: It is a fact, I see. 20 THE COURT: Okay. Could you approach the bench with 21 one of the Krummrich studies. 22 (Bench conference had out of the hearing of the 23 jury.) 24 MR. HEINEMAN: Here is what we are referring to 112 1 right here. 2 THE COURT: What specifically are you referring 3 to? 4 MR. HEINEMAN: All I want him to talk about is what 5 the results, how are the results of the correspondence, let 6 me start over again. All I want to ask him is how the 7 results of the porphyrin analyses are stated in the 8 laboratory results in the Nitro study. If they are the same 9 as this, if this is the way they are set forth, fine. He can 10 use this as an example. 11 MR. CARR: That wasn't your question, counsel. You 12 were suggesting the answer to the witness that isn't so 13 unless you know that it is so unless you have the report here 14 that says that the laboratory so described their results. 15 MR. HEINEMAN: I am suggesting what the witness 16 testified to yesterday as to what they showed. That is my 17 recollection of what he said. 18 THE COURT: I think the question that you objected 19 to is not the same as you just told me. Do you have any 20 objection to what he just stated? 21 MR. CARR: I don't object to him asking the witness 22 what the lab report actually states. I do object to him 23 suggesting something that isn't a fact. 24 THE COURT: Fine. I will allow you to ask that 113 1 question 2 MR. HEINEMAN: All right. 3 (The following proceedings were had in the hearing 4 and presence of the jury). 5 Q. Doctor, the Krummrich results, laboratory results t 6 are set forth in Plaintiffs* Exhibit 1504, is that right? 7 A. Yes, sir. 8 Q. Okay. Now, what is it that the, what do the 9 Krummrich Laboratory reports say about porphyrin levels? 10 A. It states the analysis results reported in the 11 METPATH data is the uroporphyrins and the coproporphyrins are 12 listed in the micrograms per liter of urine. 13 Q. Is there a reference range listed with them? 14 A. No, sir. 15 Q. Does METPATH have a reference range for porphyrins 16 stated in terms of micrograms per liter? 17 A. They didn*t include it. 18 Q. To your knowledge, does METPATH have any normal 19 reference range for porphyrins other than that which Mr. Carr 20 showed you which is Exhibit 1509? 21 A. This is the only limit that I know of that METPATH 22 has and they list the normal range for creatinine, 23 coproporphyrin and uroporphyrins in terms of micrograms 24 excreted per 24 hours. 114 t 1 Q. So they give it only in terms of a 24 hour sample 2 in their normal reference range? 3 A. Yes, sir. 4 MR. CARR: I suggested to the court that we did not 5 have a METPATH result for the Nitro study. That is 6 incorrect. The people that have cancers and there are 7 exhibits in evidence from Nitro that make up these charts 8 that we have, we do have and have put into evidence. They 9 are complete laboratory reports so we do have the METPATH 10 Laboratory and porphyrin for some of the Nitro workers who 11 were part of the morbidity study. If the court would like to 12 see that exhibit to see that they are the same as the 13 Krummrich study. We would be glad to show the court that we 14 did have it. 15 THE COURT: The two of you agree that they are the 16 same, though, is that correct? 17 MR. CARR: I don't know whether counsel agrees or 18 not but he said I claimed it' but I stated it was a fact. 19 THE COURT: Do you agree that they are the same? 20 MR. HEINEMAN: I don't know whether they are or 21 not. I would have to look at them myself. 22 MR. CARR: You have seen them, counsel. I gave you 23 a copy of them. 24 MR. HEINEMAN: You did? 115 1 MR. CARR: X gave you a copy of those workers at 2 Nitro that had cancer, if you recall. They were listed on 3 the board there. There were 28 cancers that Suskind only 4 reported 14 of. 5 MR. HEINEMAN: That is right. You did indeed. 6 MR. CARR: The clerk has a set, counsel, and I have 7 a set. 8 MR. HEINEMAN: Which Exhib.it Number is that? 9 MR. CARR: This exhibit over here if you get close 10 to it, 1473, or thereabouts, would be it. 1473 is probably 11 it. 12 MR. HEINEMAN: 1468. They look to be about the 13 same. Close enough that I can't tell the difference. 14 THE COURT: Fine. 15 Q. Now, the figures there, the results that are 16 established there are set forth in micrograms per liter, 17 correct? 18 A. Correct. 19 Q. In the Krummrich results? 20 A. Yes. 21 Q,. And they do not list a normal reference range 22 beside that, isn't that correct? 23 A. No, sir. 24 Q. And they have an asterisk next to each of those 116 1 results, do they not, on porphyrins? 2 A. Yes, sir. . 3 Q. And the asterisk is essentially like a footnote? 4 A. Yes. 5 Q. And then they explain what the asterisk means? 6 A. Yes, sir. 7 Q. And what do they say? 3 A. Where it lists the coproporphyrin, I can't read it 9 well but it is urine, it has an asterisk and an 01 which the 10 coproporphyrin and for 01 below it it says no total volume given, results expressed per liter. For uroporphyrins, that 12 is with an asterisk and the number 2. Below it it states for 13 number 2, no total volume given, results expressed per 14 liter. And for number 3 which refers to the creatinine, 15 urine creatinine, they say for 3, they have got another 16 asterisk, another note below. No total volume given, results 17 expressed per liter. 18 Q. Now, did Doctor Suskind rely upon those porphyrin 1\9 results when he wrote his report? 20 A. Which report? 21 Q. Well, let me, I am switching back to Nitro on you. 22 I am sorry. Let me go back to Nitro. If the Nitro results 23 are expressed in the same way, did Doctor Suskind rely on 24 those porphyrin results when he wrote his report on the Nitro 117 1 morbidity study? 2 A. In his draft report or the final report? 3. Q. Well, let's take the draft report. 4 A. In the draft report, he reports the urine porphyrin 5 and coproporphyrin in micrograms per liter. 6 Q. All right. That is in the second draft, correct? 7 A. Yes, sir. 8 Q. Let me direct your attention to the first draft 9 that he sent you. And that is Exhibit 1479 where you made 10 the comments and sent it back. I direct your attention to 11 page 3 of Exhibit 1479. If you look at page 3, sir, there is 12 that, in the second paragraph, there is the sentence that you 13 just read a few minutes earlier about what you made comment 14 on? 15 A. Yes, sir.. 16 Q. The sentence states, urinalysis included routine 17 examination as well as coproporphyrins and uroporphyrins with 18 an asterisk, correct? 19 A. Yes, sir. 20 Q. And that is the sentence about which you said the 21 findings aren't in here, correct? 22 A. Yes, sir. 23 Q. Porphyrin findings not reviewed in text or table? 24 A. Charts. Same thing. 118 1 Q. What does he say at the bottom of the page where 2 that asterisk is? 3 A. Values for urine coproporphyrin .and uroporphyrins 4 were determined by a single void sample rather than the 5 required 10 ml. aliquot of a 24 hour volume. Hence, levels 6 outside the normal range cannot be regarded as significant. 7 Q. So that is what he said in the first draft that he 8 sent you? 9 A. Yes, sir. 10 Q. Clearly indicating that he did not rely on those 11 porphyrin results? 12 A. Yes, sir. 13 Q. You asked him what are the porphyrin findings, 14 correct? 15 A. Right. 16 Q. And then the second draft came and that contained 1 7 the chart which is 1453A, 1483A, that contained the chart 18 page 77 that had porphyrins on there, right? 19 A. Yes. 20 Q. Then in the final report which was published, I 21 would like to direct your attention to this, sir. On page 77 22 there which would be 1483A, there is an asterisk there as 23 well, isn't there? 24 A. Yes, sir. 119 1 Q. And a footnote at the bottom of the page and it 2 says what? 3 A, The values for coproporphyrin and uroporphyrin were 4 from a single void sample. 5 Q. And he points that out to whoever is reading this 6 chart, correct? 7 A. Yes, sir. 8 Q. On table 35. Now, in the final report which was 9 published, the paper as he published it, what did he do, do 10 you recall, sir? k 11 A. He left out porphyrins. 12 Q. They were left out? 13 A. Yes. 14 Q. Here we have Plaintiffs1 Exhibit 1467 and ask you, 15 sir, is that the final morbidity study as it was published by 16 Doctor Suskind and Vicky Hertzburg? 17 A. Yes, sir.' 18 Q. And what does he say about porphyrins there? 19 A. On page 273 he says urines included routine 20 examination as well as determination of coproporphyrins and 21 uroporphyrin values. Then he has in a parenthetic statement 22 saying values were determined by single void sample, hence, 23 the measurements cannot be regarded as valid. 24 Q. So that is different from the footnote at the ____________________________ __ _______________________________ 120 1 bottom of page 3 in the first draft that he sent you, isn't 2 it? 3 A. Yes, sir. 4 Q. In this one he said hence levels outside of the 5 normal range cannot be regarded as significant and in that 6 one he says they are not valid? 7 A. Yes, sir. 8 Q. Now, sir, was that language listed in the final 9 report, Plaintiffs1 Exhibit 1467, that was suggested to 10 Doctor Suskind by you? 11 A , No, sir . 12 Q. To your knowledge, was it suggested to him by 13 anyone at Monsanto Company? 14 A. No, sir. 15 Q. Now, Doctor, with respect to the actual Krummrich 16 results, you mentioned to Mr. Carr when he was asking you 17 about the Krummrich study, that 44 people had worked only in 18 the penta department? 19 A. Yes, sir. 20 Q. Now, that is reflected in table 7 in the Suskind 21 report, is it not? 22 A. I don't recall. 23 Q. It is Exhibit 1500, sir? 24 A. Table 7. Yes, sir. 121 1 Q. Okay. Table 7 is the one that demonstrates what? 2 How many people had chloracne depending upon which department 3 they were in, is that right? 4 A. Yes, sir. 5 Q. And that demonstrates a total of 44 people in that 6 study who worked only in Department 236 with penta? 7 A. Yes, sir. 8 Q. In addition to that, sir, Mr. Carr in connection 9 with the Krummrich Plant health study asked you about the 10 history portion that each person filled out. And he directed 11 your attention to, I think, 6 or 7 questions with respect to 12 their present condition. Do you recall that? 13 A. Yes, sir. 14 Q. Now, would you take the first one of those 15 Krummrich study results and turn to that page that reflects 16 those 6 or 7 questions? 17 A. Yes, sir. 18 Q. One of those questions has to do with fatigue, is 19 that right? 20 A. Yes, sir. 21 Q. And what is the question that is asked? 22 A. Are you tired most of the time. 23 Q. Now, if you look at Plaintiffs1 Exhibit I think it 24 is 1506. Is that before you there? That is the summary that 122 1 Mr. Carr had prepared. 2 A. No, sir, that is not here. 3 Q. I am sorry, it is 1507. Do you see that, sir? 4 A. Yes, sir. 5 Q. That is the summary that Mr. Carr told you that he 6 prepared or he had prepared, is that right? 7 A. Yes, sir. 8 Q. And he represented to you and he represented to the 9 court that it was accurate? 10 A. Yes, sir. 11 Q. Is that right. Now, Doctor, he lists on that chart 12 several people that have chloracne? 13 A. Yes, sir. 14 Q. Is that right? 15 A. Yes, sir. 16 Q. Do you know whether or not the number of people he 17 has listed as having chloracne is correct? 18 A. There is 30 or 31 here. 19 Q. All right. 20 A. The Suskind report we just went over. There were 21 42 people that were listed. You have to look at the column 22 the other way. 23 Q. The Suskind report states that? 24 A. 43 have chloracne. 123 1 Q. That is 42'and one questionable? 2 A. Right. But they list it as 43. 3 Q. Have chloracne? 4 A. Yes, sir. 5 Q. And this document lists 31 that have it? 6 A. Yes. 7 Q. So, apparently Doctor Suskind believes that 3 are 11 more chloracne cases, at least 11 more among those 9 Krummrich workers than this document would demonstrate? 10 A. Yes, sir. 11 Q. Now, with respect to the questions that were asked, 12 you were talking about headaches. Would you read to the jury 13 what the questions are that are asked each of these Krummrich 14 workers about their headaches? 15 A. Do you have headaches? That is one question. Then 16 after that another question is, do you have headaches daily? 17 Do you have headaches weekly? And do you have headaches less 18 than weekly? 19 Q. So, there is the general question do you have 20 headaches and then under that there are 3 specific questions 21 about headaches, about how-frequently you have them? 22 A. Yes, sir. , 23 Q. Whether it is daily, weekly or less than weekly? 24 A. Yes, sir. 124 1 Q. Is that right? 2 A. Yes, sir. 3 Q. Now, as I understand what Mr'. Carr was talking with 4 you about yesterday, everybody that checked the headache box 5 was listed as having a symptom for headache, is that your 6 understanding? 7 A. Yes, sir. 8 Q. Regardless of which of those boxes were checked? 9 A. Yes, sir. 10 Q. So that someone could have headaches a couple of 11 times a year and be included in Exhibit 1507 as having 12 symptoms of headaches? 13 A. Yes, sir. 14 Q. Do you have a record up there for a lady named Beth 15 Fay? 16 A. Yes, sir. 17 Q. What does she say in her record or what does the 18 interviewer have written down that she said about her 19 headaches? 20 A. Do you have headaches? Yes. Do you have headaches 21 less than weekly? The answer is yes. 22 Q. Anything else written there about her headaches? \ 23 A . No, sir. 24 Q. All right. She has it checked as less than weekly, 125 1 correct? 2 A. Yes, sir. 3 Q. And does she have -- well you can't tell. It is 4 just all symptoms, right? 5 A. That is right. 6 Q. Beth Fay. Now, what did -- let me direct your 7 attention to the place where she was examined. On page 15 of 8 Beth Fay's papers here, this chart, there is a page that has 9 at the top of it abnormal findings from history, correct? 10 t A. Yes, sir. 11 Q. It says yes mark is checked. Yes, an abnormal 12 finding from history and it says there tension headaches most 13 of her life, doesn't it? 14 A. Yes, sir. 15 Q. And under diagnosis on that same page it says 16 tension headaches, right? 17 A. Yes, sir. 18 Q. And do you know Beth Fay? 19 A. I have met her. 20 Q. How old is she? 21 A. I don't know. 22 Q. Well, she wasn't born in '79, was she? 23 A. No. 24 Q. So, for all you know, Beth Fay may be included ------------------------ :----------------------------------------126 1 there as having a headache when she has had tension headaches 2 most of her life, is that right? 3 A. It is listed there as most of her life. 4 Q. But I mean she may have been included in Exhibit 5 1507, this chart? 6 A. Yes, sir. 7 Q. It says she was born in 1957 in that document. 8 Now, you mentioned something about headaches. Do you 9 consider a large number of these people having headaches to 10 be a significant symptom reported? 11 A. Not if you don't put any limitations on the 12 definition of headache. 13 Q. You mentioned some statistics about how headaches 14 occur in the normal population, didn't you? 15 A. I did find that headaches have been reported up to 16 80 percent of the population, the normal population. Just 17 so-called people off the street will say they have headaches 18 like this or more. 19 x Q. Now, they will report, they will have them, they 20 will just report they have headaches? 21 A. Right. It maybe weekly or it could be monthly or 22 they have had headaches sometime or other. 23 Q. And if this group, if it turns out that 80 percent 24 of this group reports headaches even though some of them may 127 1 be less than once a week, once a year or they have had them 2 all their life, you wouldn't find that -- if there is as much 3 as ,80 percent of people said they had headaches, you wouldn't 4 find that abnormal? 5 A. I couldn't, 6 Q. Now, some of the people reported insomnia, is that 7 right? 8 A. Yes, sir. 9 Q. - Now, what was the question that was asked of them, 10 sir? 11 A. Do you have trouble sleeping? 12 Q. And there is either a yes or a no? 13 A. Yes, sir. 14 Q. And I believe Mr. Carr told you that 19 percent of 15 the people in this report of his had it or reported it? 16 A. I think it was about 20 percent. I don't remember 17 the exact number but it was around 20 percent. 18 Q. You suggested some statistics with respect to how 19 it is found in the normal population reports of insomnia, did 20 you not? 21 A. Yes, sir. 22 Q. What is that? 23 A. In the article discussing insomnia, the statement 24 is made that so many people complain of difficulty sleeping 128 1 that it is almost a normal phenomenon rather than an abnormal 2 phenomenon. Then it goes on to discuss the statistics of it 3 where they have asked people similar to this this question 4 and something of the order of 20 percent of the population 5 will say that they have difficulty sleeping because it is a 6 question have you ever had sleeping problems like headaches 7 or do you have enough problems so that you either seek 3 medication or you go talk to someone about it. 20 percent is 9 what they say is expected based on a sampling such as this. 10 MR. CARR: So the record is correct, Your Honor,-it 11 was the witness that stated the figure and we have not 12 attemptted to breakdown who had what symptom or percentages, 13 I made no such statement that it was 20 percent. 14 MR. HEINEMAN: Do I understand you to say you don't 15 know how many of these symptom marks relate to insomnia. 16 MR. CARR: That is correct. Nor do I know how many 17 relate to headaches, fatigue, neural behavior problems and I 18 have given you all the information that I have attempted to 19 take from the reports. 20 MR. HEINEMAN: And these check marks speak for 21 themselves? N 22 MR. CARR: They do. 23 Q. Doctor, one of the questions there relates to 24 appetite, is that correct, sir? 129 1 A. Yes, sir. 2 Q. What is the question that is asked? 3 A. Do you have a good appetite? 4 Q. And, you can either answer that yes or no, correct? 5 A. Yes, sir. 6 Q. Now, you said to Mr. Carr something about that a 7 bunch of the people who said, who denied good appetite were 8 overweight, is that right? 9 A. Yes, sir. 10 Q. Now, I assume that you had to look at those records 11 in order to determine that, did you? 12 A. Yes, sir. 13 Q. Now, Doctor, why would you go beyond the mere 14 answer given to a question like that to see if there are 15 other factors that might relate to that answer? 16 A. Well, a good example is do you have a good appetite 17 and to say no, I dons,t have an appetite and the man is 18 overweight, he may feel like he has got a bad appetite but it 19 isn't reflected as a decrease in caloric intake. Similarly, 20 if a man says I am tired most of the time and if you say to 21 him how long have you been tired and he says I have been 22 tired all my life and I would say what do you do when you are 23 tired and he says I don't do anything and if he says I am 24 tired and I would say you have had this many years. Have you 130 1 ever sought any help from a doctor because of it and he says 2 no. I say that doesn't mean very much. Similarly, if you > 3 have had trouble sleeping and you say do you ever take 4 anything for it and he said no. In medicine we say that 5 probably isn't very much. If he says if he has had 6 difficulty sleeping, have you gone to a doctor about it and 7 he says no,'it isn't much of a problem. So, you really can't 8 take any of these examples here by themselves with more 9 followup before you can put any significance on these 10 representations. 11 Q. Now, one of the people -- would you look at the 12 record there for a Mr. Bellm, B-e-l-l-m? 13 A. Yes, sir. 14 Q. What did Mr. Bellm say with respect to the question 15 of whether he had a good appetite? 16 A. Do you have a good appetite? No. 17 Q. All right. Can you find out what his height and 18 weight are? > 19 A. He is 5 feet 9 inches tall and his weight is 190 20 pounds. 21 Q. Now is 190 pounds overweight for being 5 foot 9? 22 A. By most standards it would be. I don't have the 23 thing here but that would certainly be on the high side of 24 normal. 131 1 Q. At any rate, if he has a bad appetite, he is not 2 losing much at the dinner table? 3 A. That is right. But if we had that, I'would say 4 what did you weigh 10 years ago, so you really can't take any 5 of these numbers, any of these yes or no answers by 6 themselves. 7 Q. Now, in that samedocument, sir, if you look at 8 page 14 of the questionnaire on Mr.Bellm, it says he has a 9 history of gout, doesn't it? 10 A. Yes, sir. 11 Q. What is gout? 12 A. Gout is a metabolic disease which means that it has 13 something to do with how we metabolize and what things we 14 produce and how much we produce of them and it is associated 15 with an excess production of uric acid. Either that, it is 16 either an excess production of it or there is a difficulty in 17 excreting in the urine. And so this uric acid in your blood 18 is elevated but the characteristics of it as we all remember 19 Captain Kid and the Captain had gout and he had that painful 20 toe that he had to keep up. It is a painful association 21 related to the deposition of crystals of uric acid in the 22 joint space causing terrible pain and causing terrible 23 swelling because of the presence of the uric acid. 24 Q. Does it have anything to do with what you eat? 132 1 A. A man who is overweight is the one who is going to 2 get gout in most circumstances but not always. But there is 3 an association between overweight and gout. 4 Q. Now, sir, if you look at Mr. Brunner? 5 THE COURT: Before you start another one, is this a 6 good point for a short break? 7 MR. HEINEMAN: It would be fine, Judge. 8 THE COURT: Ladies and gentlemen, we will take a 9 short break at this time. I would remind you the 10 admonishments that I gave you earlier will apply during this 11 break also. Court is in recess. 12 COURT RECESSED: 13 (The following proceedings were had in the hearing 14 and presence of the jury) 15 GEORGE. ROUSH 16 having resumed the witness stand, being previously sworn, 17 testified further as follows: 18 CLARIFICATION EXAMINATION 19 By 20 MR. KENNETH R. HEINEMAN. 21 Q. Doctor, do you have the chart on Mr. Brunner? 22 A. Yes, sir. 23 Q. Would you turn to page 11? 24 A. Yes, sir. 133 1 Q And the question do you have a good appetite. He 2 answers no, correct? 3 A. Yes, sir. 4 Q. He checked all of those symptoms no, didn't he, 5 sir? 6 A. Yes, sir. 7 Q. Now, Mr. Brunner is not listed on Exhibit 1507 as 3 having a symptom, correct? 9 A. No, he does not. 10 Q. Now, if you look back at Mr.`Bellm, that we were 11 just talking about before? 12 A. Yes, sir. 13 Q. Bellm checked all of the symptom answers no, did he 14 not, sir? 15 A. Yes, sir. 16 Q. But he was listed as having a symptom, correct, on 17 1507? 18 A. Yes, sir. 19 Q. And one can assume that is because a no answer to 20 do you have a good appetite could be checked as a symptom, 21 correct? 22 A. Yes. 23 Q. Now, with Mr. Brunner, he answered no to all the 24 questions just as Mr. Bellm did of those 7 questions relating 134 1 to symptoms, correct? 2 A, Yes, sir, 3 Q. And he was not listed as having a symptom on 1507, 4 correct? 5 A. Yes, sir. 6 Q. So either an answer of no to question number 7, do 7 you have a good appetite, is a symptom or it isn't. It can't 8 be both ways, correct? 9 A. Yes, sir. 10 Q. Now, Mr. Brunner, if you look at page 14, excuse 11 me, 13, how tall is he, sir? 12 A. 5 feet 11. 13 Q. And his weight? 14 A. 243 pounds. 15 Q. So, one might believe in reviewing the entire 16 document that while he may at the time believe he does not 17 have a good appetite, he apparently does? 18 A. Yes, sir. 19 Q. Isn't that right? 20 A. Yes, sir. 21 Q. So that while you would look beyond merely lifting 22 the check mark off the document but get the results from the 23 entire document, correct? 24 A. Yes, sir 1 135 / 1 Q. And when Doctor Suskind was analyzing the results 2 of these data back in Cincinnati, he would have access to 3 this entire questionnaire, would he not? 4 A. Yes, sir. 5 Q. And he would make judgments about whether certain 6 statements in here would be significant or not? 7 A. Yes, sir. Q. Based upon the entire record? 9 A. Yes, sir. 10 Q. Now, Mr. Carr told you, sir, did he not, that all 11 of the answers for questions 3 through 9 that reflected 12 symptoms were recorded in that first box on page 1507, 13 correct? 14 A. I am sorry, 1507? 15 Q. 1507 is the chart. ' 16 A. I am sorry, ask the question again. 17 Q. 18 there -- Didn't he tell you, sir, that the symptom column 19 A. Yes, sir. 20 Q- Reflected all of the answers to questions 3 through 21 9 of each of these people whose names are listed there, 22 correct? 23 A. Yes, sir. 24 Q. And we know that in the case certainly of Mr. 136 1 Brunner, that is not accurate? 2 A. That is right. 3 Q. Now, do`you have Mr. Copeland's record there, sir? 4 Do you have it there, sir? '5 A. They are not very clear. Is Copeland 114? 6 Q. Yes, sir. 7 A, Yes, I have it. 8 Q. And on page 11, he answers no to all the questions? i 9 A. Yes, sir. 10 Mr. CARR: That is not etxactly clear, counsel. If 11 you want, unless you have got a better copy than mine. 12 Mr. HEINEMAN: It looks like it on ours. 13 Mr. CARR: That is not an X. It appears to be a 9 14 but I can't make it out from mine. Call it what you want. 15 We will take care of it. 16 Q. The form that you have there, sir, for Mr. Copeland 17 on number 11, if you look at question number 7, do you have a 18 good appetite, is there any mark at all in the yes box? 19 A. No, sir. 20 Q.' Is there a mark in the no box? 21 A. Yes, 'sir. 22 Q. And so he has marked a no on all these questions? 23 A. Yes, sir. 24 Q. And he has marked no on whether you have a good 137 1 appetite? 2 A. Yes, sir. 3 Q. Which should be a symptom, correct? 4 A. Yes, sir. 5 Q. And he is not listed on 1507 as having a symptom? 6 A. No, sir. 7 Q. And, sir, he is, if you look at page 13, how tall 8 he? 9 A, 5-11. 10 Q. And how many does he weigh? 11 A. 189 pounds. 12 Q. Would that be indicative, sir, of a loss of 13 appetite? 14 A, That is a normal weight, on the high side of 15 normal, w 16 Q. Now, would you look, sir, at Mr. Deford? 17 A. Yes, sir. 18 Q. Now he answered on page 11 all of the symptom 19 questions no, did he not? 20 A. Yes, sir. 21 Q. He also denied having a good appetite? 22 A. Yes, sir. 23 Q. Correct? 24 A. Yes, sir. 138 1 Q. And that was a symptom for Mr. Bellm, was it not? 2 A. Yesf sir. 3 Q. And if you look at the chart number 1507 for 4 Deford, there is no symptom listed there, is there', sir? 5 A. No, sir. 6 Q. His height on page 13? 7 A. Is.5 feet 5 inches. 8 Q. His weight 131? 9 A. Yes, sir. 10 Q. Is that a normal weight for being 5 feet 5? 11 A. It depends on his body build but it is within the 12 range of normal. 13 Q- Now, would you look at Mr. Feazel? 14 A. Yes, sir. t 15 Q. F-e-a-z-e-1? 16 A. Yes, sir. 17 Q. And you look at page 11? 18 A. Yes, sir. 19 Q. He answers one of the symptom questions yes and 20 that is do you lose your temper easily? 21 A. Yes, sir. 22 Q. And he answers do you have a good appetite no, 23 correct? 24 A. Yes, sir. 139 1 Q. He answers all of the other symptom questions no? 2 A. Yes, sir. 3 Q. And on the chart he has 2 marks under symptoms. 4 correct? 5 A. Yes, sir. 6 Q. So obviously on this man a denial of a good 7 appetite is listed as a symptom? 8 A. Yes, sir. 9 Q- As well as losing temper easily? 10 A. Yes, sir. 11 Q- And if you look at page 13, sir, he is 5 foot 7? 12 A. Yes, sir. 13 Q. And a half? 14 A. Yes, sir. 15 Q. And he weighs 169 pounds? 16 A. Yes, sir. 17 Q.' Is that a normal weight for being 5-7 and a half? 18 A. Yes, sir. It is on the high side of normal for 19 5-7. 20 Q. Now, sir, would you look at Mr. Grimmett please? 21 A. Gr invmett? 22 1 Q. Grimmett. 23 A. Yes, sir. 24 Q. Now, Mr. Grimmett, if you look at page 11? 140 1 A. Yes, sir. 2 Q. He says with respect to question number 3, it asks 3 do you have headaches. He says yes, does he not, sir? 4 A. Yes, sir. 5 Q. He says are they daily? No. Correct? 6 A. Yes, sir. 7 Q. Weekly? No. Correct? 8 A. Yes, sir. 9 Q. Less than weekly? No. 10 A. Yes, sir. 11 Q. Would that seem kind of inconsistent? 12 A. Yes, sir. 13 Q. Unless he means they occur much less frequently 14 than weekly but at any rate, sir, he has a yes answer for 15 headaches, a yes answer for trouble sleeping, a yes answer 16 for tired most of the time, a yes answer for do you need more 17 sleep than usual and a no answer for do you have a good 18 appetite, correct? 19 A. Yes, sir. 20 Q. And he has got 4 symptom checks? 21 A. Yes, sir. 22 Q. You don't know which of those symptoms was 23 disregarded or ignored by the person who prepared this 24 Plaintiffs' Exhibit 1507, correct? 141 1 A. Yes, sir 2 Q. By the way, Mr. Grimmett on page 13, how tall is 3 he, sir? 4 A. He is 6 feet 5. 5 Q. And how much does he weigh? 6 A. 175 pounds. 7 Q, That is pretty thin for 6 foot 5? 8 A, He is slightly built. Probably 9 Q. Now, is there anything else that you can look at? 10 That alone might indicate indeed that he might have a lack of 11 appetite, isn't that right? 12 A. Yes, sir. 13 Q. Is there anything else you could look at such as 14 the laboratory results which would give you any indication as 15 to whether indeed he has a lack of appetite? 16 A. You would look at the laboratory result and see if 17 there is any explanation there. 18 Q. Now, what are his lipids, sir? 19 A . . His lipids, his triglycerides were about normal. 20 His cholesterol was quite normal. His LDL was normal, and 21 his VLDL was normal. 22 Q. So his lipids are normal. That is the amount of 23 fat in his blood? 24 A. Yes, sir. 142 1 Q. What does that tell you, if anything, about whether 2 or not he has good appetite? 3 A. You can't draw a great deal of conclusion from it. 4 He is able to maintain his lipids in the normal range which 5 suggests that he is getting enough calories including his fat 6 and he may be chewing up his fat for calories and that is the 7 reason he is not overweight. 8 Q. Now, we don't know, do we, sir, whether this man 9 who may indeed have a low appetite, have a decreased 10 appetite, whether that symptom was the one left off 11 Plaintiffs' Exhibit 1507, do we, sir? 12 A.' Yes. Yes, sir. 13 Q. Do we have one. there, sir, on a Mr. Hewitt? 14 A. Yes, sir. 15 Q. Now, if we turn to page 11, we see that Mr. Hewitt I 16 gives negative answers to all of the 7 symptom questions 17 including denying that he has a good appetite? 18 A. Yes, sir. 19 Q. And in this occasion there is no check for symptom 20 under Hewitt, is there, sir? 21 A. No, sir. 22 Q. And, if we look at page 13, we see that he is 6 23 feet 4 inches tall? 24 A. Yes, sir. 143 1 Q. Weighs 215 pounds? 2 A.. Yes, sir. 3 Q. Would that be normal? 4 A. Yep. It would be on the high side of normal. 5 Q. I am sorry to hear you say that, sir, because I 6 weigh a great deal more than 215 pounds. 7 A. Yes, sir. 8 Q. And 6 feet 4? 9 A. Yes, sir. 10 Q. And the results are obvious, I am sorry to say. 11 But 215 would be on the high side of normal for 6 feet 4? 12 A. Yes, sir. 13 Q. And if Doctor Suskind were appraising this man's 14 situation with respect to the symptoms that he claims 15 regardless of whether or not it has been put on Plaintiffs1 16 Exhibit 1507, he could look at the denial of a good appetite 17 and the height and weight and see that it seems unlikely that 18 although this man may feel that he has a loss of appetite, it 19 is unlikely that in fact he is losing any calories, is that 20 right? 21 A. Yes, sir. 22 Q. Now, how about Mr. Hornbeck, sir? 23 A. Yes, sir. 24 Q. Now, with Mr. Hornbeck, if we look at page 11, we 144 1 have some difficult decisions to make here, do we not, sir? 2 A. Yes, sir. 3 Q. He answers headaches yes but does not tell how 4 frequently they occur. He answers do you have trouble 5 sleeping. Yes. And he puts a circle around it, correct? 6 A. Yes, sir. 7 Q. Are you tired most of the time? His answer is yes? 8 A. Yes, sir. 9 Q. Number 6. Do you need more sleep than usual? 10 Neither one is answered but a question mark is put there? 11 A. Yes, sir. 12 Q. Number 7. Do you have a good appetite? Answer, 13 both yes and no? 14 A. Yes, sir. 15 Q. Do you lose your temper easily? Answer both yes 16 and no? 17 A. Yes, sir. 18 Q. And number 9. Do you feel angry often? Answer, 19 Correct? 20 A. Yes, sir. 21 Q. Now, are there any of those symptoms which you 22 could unequivocally answer yes if you were preparing Exhibit 23 1507? 24 A. I don't think so. 145 1 Q. Well, he did say yes to trouble sleeping? 2 A. Yes. 3 Q. And he put a circle around it? 4 A. Yes, sir. 5 Q. And he did say yes to are you tired most of the 6 time? 7 A. Yes, sir. 8 Q. So you could put down 2, couldn't you, sir? 9 A. Well, not with a circle around do you have trouble 10 sleeping. I don't know what he means by that. 11 Q. Now, if you look at Exhibit 1507 for Mr. Hornbeck, 12 we see that 4 symptoms are listed? 13 A. Yes, sir. 14 Q. For him, is that right? 15 A. Yes, sir. 16 Q. Do you have any idea from looking at the Hornbeck 17 questionnaire which those 4 could conceivably be? 18 A. I would say he probably does have headaches but I 19 am not sure what it means. I don't know whether he has 20 trouble sleeping or not. I don't know whether he needs the 21 sleep or not. And those 2 somehow should be looked at 22 together. And appetite I can't tell and -- 23 Q. Can't tell on appetite. Can't tell on losing 24 temper and feeling angry often is no? 146 1 A. That'is right. 2 Q. So you can't conceivably tell what 4 symptoms could 3 be checked in Plaintiffs' Exhibit 1507 based upon what you 4 see before you on page 11,'is that right? 5 A. No, sir. 6 Q- By the way, sir, Hr. Hornbeck is 5 foot 3? 7 A. Yes, sir. 8 Q- And weighs 268 pounds? 9 A. Yes, sir. 10 Q- Now, next we have, I would like to direct your 11 attention to Hr. Hundelk? 12 A. Yes, sir. 13 Q. Now, Mr. Hundelk on page 11 reports headaches 14 weekly? 15 A. Yes, sir. 16 Q. Which would lead you to believe if you were 17 analyzing this information for a report that he gets th 18 headache ionce a week? 19 A. Yes, sir. 20 Q. Is that unusual, sir? 21 A. No, sir. 22 Q. He answers no to trouble sleeping. He answers 23 to being tired most of the time but he answers no to needing 24 more sleep than usual. So though he says in these answers 147 1 that he is tired most of the time, he doesn't think he needs 2 more sleep than usual, correct? 3 A. Yes, sir. 4 Q. He says no to whether he has a good appetite, 5 correct? 6 A. Yes, sir. 7 Q. And he is 6 feet one and a half and weighs 242 8 pounds, correct? 9 A. Yes, sir. 10 Q. You would consider that to be overweight? 11 A. Yes, sir. 12 Q. Now, as to losing his temper easily and feeling \ 13 angry often, he answers yes to both of those with the 14 notation that it is recent on both of them, correct? 15 A. Yes, sir. 16 Q. And he has a total there I guess of 5 symptoms 17 checked? 18 A. Yes, sir. 19 Q. And on Exhibit 1507 they list 3? 20 Mr. CARR: Counsel, for your information, we did not 21 duplicate, put the neural behavior as one. One or both of 22 those neural behavior,answers were just one check. 23 Mr. HEINEMAN: Which ones are you talking about, 24 Mr. Carr? 148 1 Mr. CARR: The neural behavior. The temper easily 2 and angry often. The symptoms we list would categorize it. 3 Mr. HEINEMAN: So number 8 and 9 would be one 4 check? 5 Mr. CARR: Yes. 6 Mr. HEINEMAN: If they were either or both. 7 Mr. CARR: 2 problems with the temper or feeling 8 angry but there would only be one check on the chart for it. 9 Mr. HEINEMAN: Well that would leave us with four 10 checks, correct, four symptoms checked. 11 Mr. CARR: I am not looking at the chart. I am 12 doing something else and I just heard you talking about the 13 number of checks and I thought you should know that. 14 Mr. HEINEMAN: I see. 15 Mr. CARR: Because if you look at the chart we put 16 neural behavior problems. Do you see that in 1507? We don't 17 put temper easily or anger. If you see that, you can see 18 that. 19 Q. Nowt when Mr. Carr was asking you questions about 20 these symptoms, sir, did he tell you at that time that there 21 was one check for questions 8 and 9? 22 Mr. CARR: Counsel, if you were here, you would, have 23 heard that. I did indeed ask him about both of those being 24 neural behavior problems. We agreed they were. If you were 149 1 here, you heard me explain that to the witness. 2 Mr. HEINEMAN: I was here and I certainly didn't 3 hear that. 4 Q. Sir, did you hear him say that there was one check 5 given in the symptom column for both questions 8 and 9? 6 A. No, sir. 7 Mr. CARR: Counsel, I didn't say that to the 3 witness. What I did was have the witness agree that losing 9 the temper easily and feeling angry often was indications of 10 neural behavior problems. You can see on the chart 1507, it 11 does not put in there do you lose your temper easily, do you 12 feel angry often. They are just the category neural behavior 13 problems. 14 Mr. HEINEMAN: I see that. And you are saying the 15 witness agreed that those 2 are neural behavior problems? 16 Mr. CARR: Yes, the witness did agree with that. 17 Mr. HEINEMAN: I don't remember that either. 18 Q. Now, if we give one check for both 8 and 9, we 19 still have 4 symptoms there, do we not, sir? 20 A. Yes, sir. 21 Q. And Mr. Hundelk has 3 listed on the chart? 22 A. Yes, sir. 23 Q. You don't know by that which, if any, of these 24 symptoms answered here were ignored or overlooked by the 150 1 person that prepared Exhibit 1507? 2 A. Yes , sir. 3 Q. Now , if we look at Mr. Isaac, sir? 4 A. Yes , sir. 5 Q- Do you have that there? 6 A. Yes , sir. 7 Q. Let me direct your attention, sir, to page 11 of 8 his questionnaire. He answers that he does have headaches, 9 less than weekly. He answers yes to both of those, correct? IQ A. Yes, sir. 11 Q. So he has a headache less than once a week, doesn't 12 he? 13 A. Yes, sir. 14 Q. That could be anywhere from one every other week, 15 once every 10 days, once month, once a year, couldn't it? 16 A. Yes, sir. 17 Q. Is there anything unusual about someone who has a 18 headache less than once a week? 19 A. No, sir. 20 Q. Is that something that is found in the general 21 population? 22 A. Yes, sir. 23 Q. Now, he answered 3 other symptom questions yes, did 24 he not? 151 1 A. Yes, sir. 2 Q. And he answered, do you have a good appetite. No. 3 So he denied having a good appetite, correct? 4 A. Yes, sir. 5 Q. So even if you assume that the 2 yes answers for 8 6 and 9 constitute, only one check, that is do you lose your 7 temper easily and do you feel angry often, that is only one 8 check, he still should have 4 checks, right? 9 A. Yes, sir. 10 Q. Now, he has 3 on Exhibit 1507, correct? 11 A. Yes, sir. 12 Q. So we don't know whether on this occasion, whoever 13 compiled Exhibit 1507 felt that having headaches less than 14 weekly was not a symptom or was a symptom or we don't know 15 which of the others was considered to be a symptom or not a 16 symptom or just merely overlooked inadvertently, correct? 17 A. Yes, sir. 18 Q. Now, sir, if you look at page 13, he is 5 foot 9, 19 isn't he? 20 A. Yes, sir. 21 Q. Weighs 181 pounds? 22 A, Yes, sir. 23 Q. Would you consider that to be overweight, sir? 24 A. He is on the high side of normal. 152 X Q. High side of normal- So that if Doctor Suskind not 2 having the benefit of Plaintiffs1 Exhibit 1507 were 3 evaluating this information based on this questionnaire, he 4 would have reason to think, perhaps, that a denial of 5 appetite which indeed the man may feel at the time that his 6 appetite isn't all that he would like it to be, is certainly 7 not causing him any problem, is that right? 8 A. Yes, sir. 9 Q. Now, if we go to Mr. Jenkins, please, sir? 10 A. 'There are two Jenkins. 11 Q. I am thinking about the one that is Mr. Henry J 12 Jenkins 13 A. Yes, sir. 14 Q. Now Mr. Henry Jenkins answered no on all of the 15 symptoms , correct? 16 A. Yes, sir. 17 Q. . The negative answer to number 7 would give him . 18 symptom, correct? 19 A. Yes, sir. 20 Q. There is nothing listed in the symptoms for Mr. 21 Jenkins? % 22 A. No, sir. 23 Q- On Exhibit 1507? 24 A. Yes, sir. * 153 1 Q. He is, if you turn to page 13, how tall is he, sir? 2 A. 6 feet. 3 Q. And how much does he weigh? 4 A. 249 pounds. 5 Q- And would that be overweight for 6 feet tall? 6 A. Yes, sir. 7 Q. So that again Doctor Suskind in evaluating whether 8 or not indeed this man had a good appetite would be able to 9 refer to that height and weight as well, would he not? 10 A. Yes, sir. 11 Q. Now, next, sir, would you please look at Mr. 12 Kadell? 13 A. Yes, sir. 14 Q. Turn to page 11, the only symptom there is the 15 loss, is the denial of the -- the only symptom there is the 16 denial of a good appetite? 17 A. Yes, sir. 18 Q. He has no symptom checked on Exhibit 1507? 19 A. No, sir. 20 Q. And his -weight, height and weight are what, sir? 21 A. He is 6 feet 5 inches and weighs 236 pounds. 22 Q. Would that be within normal range for a man 6-5 23 that weighed -- 24 A. It is on the high side of normal but on the high 154 1 side of normal but not much. 2 Q. So that Doctor Suskind again would be able to refer 3 to that height and weight in determining whether or not this 4 man really has an appetite problem? 5 A. Yes, sir. 6 Q. Even though he may feel that he has one? 7 A. Right. 8 Q. And finally, Mr. Delbert G. Kirk, sir? 9 A. Yes, sir. 10 Q. The on page 11, he answers no to all of the 11 questions at the top of the page, correct? 12 A. Yes, sir. 13 Q. And he has no symptoms listed on Exhibit 1507? 14 A. No, sir. \ 15 Q. And he is 5 feet 9 and weighs 194 pounds, correct? 16 A. Yes, sir. 17 . Q. So he is certainly on at least the high side of 18 normal, probably overweight? 19 A. Probably overweight. 20 Q. Now, sir, with respect to this loss of appetite, 21 would you report that as a symptom under the circumstances of 22 having access to the heights and weights? 23 A. No, sir. 24 Q- Now, do you feel that in order to determine whether 155 1 or not indeed there is a 'symptom, one would have to do more 2 than just pull an answer out of a box but would have to look 3 at the entire questionnaire? 4 A. Yes, sir. 5 Q. So that one could make a judgment? 6 A. Yes, sir. 7 Q. As to whether or not indeed there is a symptom or. a 8 problem here? 9 A, Yes, sir. 10 Q. Now, one of the things that is stated or listed as 11 questions in these questionaires is whether somebody gets 12 angry and whether somebody loses their temper, correct? 13 A. Yes, sir. 14 Q. And you and Mr. Carr had some discussion about that 15 as to whether it was logical that one could get both angry 16 and lose their temper or one might get angry and not lose his 17 temper. Do you remember that discussion, sir? 18 A. Yes, sir. 19 Q. And that apparently is only counted as one symptom, 20 is that right? 21 A. Yes, sir. ' 22 Q. Which would lead one to believe that whoever 23 compiled these symptoms believes that there is a definite 24 connection between those two, is that right? \ 156 1 A. Yes, sir. 2 Q. That indeed they don't reflect 2 different 3 symptoms? 4 A. Yes, sir. 5 Q. NoWf were there any -- these people when you 6 reviewed these records, were there any of these people that 7 said they don't ever get angry and they don't ever lose their 8 temper? 9 A. Yes, sir. 10 Q. Would you consider a representation like that would 11 need a little followup? 12 A. Yes, sir. 13 Q. Do you know anybody in your experience as a 14 physician or as a toxicologist -- 15 .Mr. CARR: Excuse me, counsel. Are you suggesting 16 that there is a questionnaire asked do you ever lose your 17 temper? There isn't such a question asked and you asked the 18 witness if it indicated there and I thought you were going to 19 correct it but since you haven't, there is no question asked '20 like that. 21 Mr. HEINEMAN: Yes, it is. It says do you lose 22 your temper easily. 23 Mr. CARR: And do you feel angry often. 24 A. Yes, sir. 157 1 Q. And there would be people that would say they never 2 feel angry often and they don't lose their temper easily? 3 A. Yes, sir. 4 Q. And how many people were there that said that? 5 A. I am sorry? 6 Q. How many people were there that said no to both of 7 those questions? 8 A. I don't know. 9 Q. Do you know how many said yes to both of those 10 questions? 11 A. Yes. 5. 12 Q. SO' there were 5 people out of how many? 13 A. 105, 106. 14 Q. 108 according to Mr. Carr? 15 A. Yes. ' 16 - Q. 5 people that said that they lose their temper 17 easily and they feel angry often? 18 A. Yes, sir. 19 Q. And everybody else said no to either one or both of 20 those questions? 21 A. Yes, sir. 22 Q. Nowj would you consider that to be something that 23 should be reported as a symptom of some problem? 24 A. No, sir. 158 1 Q. Wow, based upon the fact, sir, of what we have seen 2 with respect to Exhibit 1507 -- 3 A. That is there. 4 Q. 1507 is this summary prepared by Mr. Carr? 5 A. Right. 6 Q. Or at his direction. Based upon what we have seen 7 with respect to the accuracy of the reporting of symptoms, 8 what we have seen with respect to how the headaches can be 9 reported, what we have seen with respect to chloracne? 10 A. Yes, sir. 11 Q. That there are 11 people whom Doctor' Suskind 12 recognizes as having chloracne which are not listed here? 13 A. Yes, sir. 14 Q. And the fact that there are listed here non 15 corrected porphyrins? 16 A. Yes, sir. 17 Q. Abnormalities. Would you consider sending this 18 document to anybody as being a representation of what the 19 health status is of the Krummrich workers? 20 A. No, sir. 21 Q. Why wouldn't you do that, sir? 22 A. Because it doesn't represent their health status. 23 Q. Now, based upon what you have read in Doctor 24 Suskind1s report which is 1500, Plaintiffs' Exhibit 1500, he 159 1 obviously didn't consider these symptoms and porphyrins to be 2 significant enough to report, did he? ' 3 Mr. CARR: I object, Your Honor, unless there is a 4 statement in that exhibit to that effect. It is asking the 5 witness to speculate. We have been through this a couple of 6 times. 7 THE COURT: Objection is sustained. The question 8 does call for speculation. 9 Q. Does Doctor Suskind, sir, mention anything about 10 these symptoms in his report? 11 A. No, sir. 12 Q. And we have already gone over what he said about 13 the porphyrins? 14 A. Yes, sir. 15 Q. That they are not valid? 16 A. Yes, sir. 17 Mr. HEINEMAN: Your Honor, may counsel approach the 18 bench? 19 THE COURT: Sure. 20 (Bench conference had out of the hearing of the 21 jury.) 22 Mr. HEINEMAN: Your Honor, this is the very kind of 23 thing that I was talking about in terms of admitting this 24 exhibit at the time that it was admitted and I believe that 160 1 the testimony of this witness demonstrates that there are 2 many inaccuracies in this document and I would request the 3 Court at this time to strike it as an exhibit, to have it 4 withdrawn and to get it back from the jury and instruct the 5 jury to disregard it because of its inaccuracy. That it has, 6 we have demonstrated 'it does not have probative value and its 7 only purpose, therefore, would be to prejudice and inflame 8 the jury and they should not have it and should not consider 9 it.' 10 THE COURT: Mr. Carr. 11 Mr. CARR: I would suggest, Your Honor, that he is a 12 little premature. We haven't put our witness on, yet. I 13 have represented to the court that we can support this 14 document and simply because he has led this witness into 15 answers that he wants from this witness doesn't mean this 16 document does not have probative value and I would request 17 that the Court postpone its ruling on this request until such 18 time as we have put our witness on and heard her explanation 19 for why she put these checks in these abnormal categories and 20 the chloracne and the porphyrins and the symptoms. 21 THE COURT: I will reserve ruling until after the 22 witness has been under direct and cross examination. 23 Mr. HEINEMAN: Of the next witness? 24 THE COURT: Of the witness that he referred to 161 1 earlier 2 Mr. HEINEMAN: All right. 3 (The following proceedings were had in the hearing 4 and presence of the jury). 5 Q. Now, Doctor, in the course of your examination by 6 Mr. Carr, he discussed with you the question of what you did 7 at the time you were informed of the Sturgeon incident and 8 what Monsanto's actions were after that incident occurred, is 9 that right? 10 A. Yes, sir. 11 Q. And do you remember him saying to you, sir, or 12 asking you to agree that the only thing that you did was to 13 have a meeting to discuss in July of '79, to discuss the 14 stench and to decide whether to pave over Sturgeon? 15 A. Yes, sir. 16 Q. Do you remember that, sir? 17 A. Yes, sir. 18 Q. Well, the fact of the matter is, sir, that there 19 were other things that occurred in 1979 at Monsanto in 20 connection with that spill, isn't that right? 21 A. Yes, sir. 22 Q. And indeed there are documents in evidence that 23 demonstrate that, are there not, sir? 24 A. Yes, sir. 162 1 Q. For example, if I could have Defendant's Exhibit 2 870, please, 3 Mr. HEINEMAN: Excuse me, Your Honor, I just note 4 that there is a blowup of this exhibit, too, and I would like 5 to get it out if I may. Did I hear someone say these were in 6 numeric order? 7 THE COURT: You didn't hear me say that.' 8 Mr. HEINEMAN: Sorry, Judge. I don't mean to hold 9 you up but I am trying to find this thing. 10 Q. Let me show you this document, sir, that is 11 Plaintiffs' Exhibit 1264 which is in evidence. These are 12 handwritten notes of a meeting. Do you remember being in a 13 meeting on February 9, 1979? 14 A. Not on this date but I knew I was in a number of 15 meetings. 16 Q. I was talking about a meeting that occurred at the 17 time the results were obtained from Doctor Kaley with respect 18 to the tests done on the reserve sample? 19 A. Yes, sir. 20 Q. Do you recall a meeting in which those results were 21 discussed? 22 A. Yes, sir. 23 Q. And you see this document says 37 ppb dioxin? 24 A. Yes, sir. 163 1 Q. Do you remember that? Do you remember that being 2 reported in the meeting that you attended? 3 A.. Yes , sir . 4 Q. Now, the attendees at the meeting are listed here 5 in the upper right-hand corner, are they not? The first name 6 on the list is you, Roush? 7 A. Yes, sir, 8 Q. The next one is Paget? 9 A. Yes, sir, 10 Q, Next one isDeGarmo? 11 A. Yes, sir. 12 Q. I can't really tell for sure who the third one is. 13 The fourth one is Callis? 14 A. Yes, sir, 15 Q. The next one is Metcalf? 16 A. Yes, sir. 17 Q, The next one, can you tell who that is by looking 18 at it? 19 A. Not from here, 20 Q. Okay. How about PSP, Phocian Park? 21 A. Yes, sir. 22 Q. Now, this document says, sir, does it not, EPA 23 Region 7 asked for analysis of spilled material to determine 24 concentration of blank dioxin present by telephone from Harry 164 1 Gilmer, correct? 2 A. Yes, sir. 3 Q. Now, it says at the bottomr the last paragraph 4 says, metcalf will telephone Harry Gilmer, tell him our 5 analysis is complete. We found 37 parts per billion in the 6 mater ial? 7 A. Yes, sir. 8 Q. Correct. Was there a decision made at that meeting 9 as to what the EPA would be told with respect to that 37 10 parts per billion? 11 A. They were going to be told that we had found the 12 dioxin present. 13 Q. Now, the 37 parts per billion that were found was 14 actually an average of 3 samples, wasn't it? 15 A. I don't recall. 16 Q. I am sorry? 17 A. Idon't recall. 18 Q. All right. And the results that you were aware of, 19 did they, sir, identify 2,3,7,8 as the specific isomer, is 20 that correct? 21 A . No, sir. 22 Q. The results that were capable of being produced at 23 that time could only identify tetra isomers? 24 A. Yes, sir. 165 1 Q. And could not be isomer specific for 2,3,7,8? 2 A . No , sir. 3 Q. And do you know what the EPA was told with respect 4 to whether it was 2,3,7,8? 5 A. They were not told it was 2,3,7,8. 6 Q. All right. Were they told anything with respect to 7 what they should assume? 8 A. We told them to assume that it was 2,3,7,8. 9 Q. Now, who did that? 10 A. That was my position what should be done. 11 Q. Now, that was discussed in this meeting? 12 A. I don't recall whether it was that specific meeting 13 or not. 14 Q. All right. You had a series of meetings about this 15 event? 16 A. Yes, sir. 17 Q. That were going on at or about this time? You will 18 have to answer aloud. 19 A. Yes, sir. 20 v Q. And you had the opinion that the EPA should be told 21 to assume? 22 A. Yes, sir. 23 Q. That it was all 2,3,7,8? 24 A. Yes, sir. 166 1 Q. Do you know if in fact that was communicated to 2 them? 3 A. I think it was. 4 Q. Well, what makes you think that, sir? 5 A. Because we had agreed that, first of all, we didn't 6 think that 2,3,7,8 would be a part of that 37 parts per' 7 billion. Our impression was that the method what we used in 8 making our chlorophenols would not result in 2,3,7,8 being 9 there. Despite that, we thought that we could assume that 10 that was 37 parts per billion could be there and was my 11 opinion that 37 parts per billion would not be.unsafe even if 12 it were all 2,3,7,8. 13 Q. It was your opinion, sir, that 37 parts per billion 14 would not be unsafe? 15 A. Yes, sir. 16 Q. In the product? 17 A. Yes, sir. 18 Q. Now, at that time, sir, did you make any 19 assumptions as to whether or not the product would be 20 absorbed into the soil? 21 A. Yes, sir.. We thought it could be absorbed into the 22 soil. 23 Q. What did you think? In other words, what you knew 24 at that time was that there had been a spill? 167 1 A. Y e s , sir 2 Q. Correct. You knew that the tank car had been 3 emptied of its content? 4 A. Yes, sir. 5 Q. And the material had spilled into the track? 6 A. Yes, sir. 7 Q. And what did you assume would happen with respect 8 to that 37 parts per billion once it got into the soil? 9 A. I wasn't sure how much would get into the soil 10 because based on our handling of chlorophenol spills, it was 11 my impression that most of it would be cleaned up, if not all 12 of it, and you can't say all of.it for practical .purposes 13 they get up all of that material and not leave it behind. 14 Q. Was it your understanding, sir, that the material ' 15 would be cleaned up? 16 Mr. CARR: X object to the leading question at this 17 point but it is getting into the area where the witness isn't 18 testifying and Mr. Heineman is and I would object to the 19 leading and suggestive form of the question. 20 THE COURT: Could you rephrase the quesiton. That 21 objection is well taken. 22 Q. Doctor, you know in fact or do you know that there 23 were communications by letter between Monsanto and the EPA? 24 A. Yes, sir. I remember that. 168 1 Mr. HEINEMAN: Your Honor, it is 4 o'clock. I don't 2 know if you want to break now. 3 THE COURT: ' Finish up the next couple of questions. 4 Mr. HEINEMAN: Okay. 5 Q . Now -- 6 THE COURT: Let's break at this point then. Ladies 7 and gentlemen, we will start tomorrow morning at nine o'clock 8 and adjourn at this time for the day. I would remind you 9 besides the regular admonishments during any break that over 10 this overnight break you are not to read, listen to or watch 11 anything about this case in particular or.subject.matter in 12 general in any of the media. Thank you for your attention 13 and cooperation. Court is adjourned for the day. 14 COURT ADJOURNED FOR THE DAY: 15 16 17 18 19 20 21 22 23 24 169 1 STATE OF ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT 3 COUNTY OF ST. CLAIR 4 ) ) ) ) ) SS 5 If Kimberly Ganz, one of the Official Court Reporters, do 6 hereby certify that the foregoing transcript is a true and 7 correct transcript of the proceedings had in the 8 above-entitled cause. 9 Dated this / day of July, 1985. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 170 1 STATE OF ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT 3 COUNTY OF ST. CLAIR . 4 ) ) ) ) ) SS 5 I, RICHARD P. GOLDENHERSH, one of the Judges in and for 6 the Twentieth Judicial Circuit, do hereby certify that the j 7 foregoing transcript is a true and correct transcript of the 8 proceedings had in the above-entitled cause. 9 Dated this / ^ day of July, 1985. 10 11 12 A J u * f ft J u X u l L s C 13 HON. RICHARD P. GOLDENHERs! 14 15 16 17 18 19 20 21 22 23 24 171 1 INDEX 2 WITNESSES CALLED ON BEHALF OF THE PLAINTIFF: 3 1, GEORGE ROUSH (Section 2-1102) 4 Cross Examination by Mr. Carr . . 5 Examination by Mr. Heineman . . . 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 172 PAGE, 2 22 1 2 PLAINTIFF'S E X H I B I T flO, 3 1510A 4 1511 5 BEgEmMl* S 6 908 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 EXHIBITS IDENTIFIED 2 69 173 ADMITTED 3 6