Document 5bEa9EoyRxzkKZrYq0bGVVb75

1 STATE OF MICHIGAN 2 IN THE CIRCUIT COURT FOR THE COUNTY OF HURON 3 4 v - ) 5 ROGER A. HALEY and VALERIE J. HALEY, ) Husband and Wife; and DONALD L. ) 6 HALEY and FLORENCE S. HALEY, Husband ) and Wife, 7 Plaintiffs, ) ) ) 8) ) 9 -vs- ') .) 10 MICHIGAN SILQ COMPANY, a Michigan ) ) 11 Corporation, C & B SILO COMPANY, a ) Michigan Corporation; MONSANTO ) 12 COMPANY, a Corporation; and CONCRETE ) SILO COMPANY, INCORPORATED, a ) 13 Corporation, Jointly and Severally, ) ') 14 Defendants. ) ) 15 ' ' No. 77 002593 NP VOLUME XXVI 16 17 Excerpt of the proceedings had and testimony 18 taken in the above-entitled matter on Wednesday, May 9, 1984, 19 at 9:00 o'clock A.M., at the Huron County Courthouse, Bad Axe, 20 Michigan, before the Honorable M. Richard Knoblock. 21 22 23 24 25 Tri-City Court Reporters 5ZZ6 State St. Saginaw, Michigan 4860} HARTOLDMONOQ44266 t APPEARANCES s 2 hC GRAW & BORCHARD, BY; PATRICK MC GRAW, Esq., 3 and 4 JAMES N. WOODWORTH, gsq. , ' ' 5 and 6 CUBITT, CUBITT & TROWHILL, 7 BY: II. DALE CUBITT, Esq. , 8 . Appearing on behalf of Plaintiffs. 9 CHAKLOS, JUNGERHELD & DELLA SANTINA, BY: WILLIAM E. JUNGERHELD, Esq., 10 and 11 ROBERT A. HAHN, Esq., 12 and 13. DAVID F. MOORE, Esq., . 14 Appearing on behalf of Defendant 15 Monsanto. 16 DAVIDSON, BREEN & DOUD, BY: JOHN DAVIDSON, Esq., 17 Appearing on behalf of Defendant 18 C & B Silo. 19 20 21 22 23 24 25 Tri-City Court Reporters 51X6 State St. Saginaw, Michigan 48603 HARTOLDMON0044267 1 INDEX 2 WITNESS; 3 KELLY, Emmet, R., 4 Cross-Examination by Mr. Woodworth 5 Redirect Examination by' Mr. Jungorheld 6 Recross-Examination by Mr. Woodworth 7 8 WITNESS: PRICE, Harold, A., 10 Direct Examination by Mr. Ilahn 11 Cross-Examination by Mr. Me Graw 12 Redirect Examination by Mr. Hahn 13 Recross-Examination by Mr. Me Graw 14 15 16 17 18 19 20 21 22 23 24 25 Tri-City Court Reporters 5226 State St. Saginaw, Michigan 45605 Page 4258 Page.4322 Page 4326 Page 4332 Page 4364 Page 4399 Page 4405 , 4257-A HARTOLDMON0044268 1 (Whereupon at 9:00 o' clock A.M. , Wednesday, May 2 9, 1984, the hearing continued as follows:) 3 4 (Wherepon a legal disucssion ensued outside the 5 ' presence of the jury.) 6 THE COURT: Good morning, members of the jury. 7 THE JURY: Good morning. 8 THE COURT: Resume the stand. You are still under 9 oath. _ .. 10 As you will recall, members of the jury, I believe it 11 was last Thursday when Dr. Kelly was last testifying and 12 Mr. Woodworth was cross-examining him so we'll resume with 13 that cross-examination at this point. . 14 MR. WOODWORTH: Thank you, your Honor. 15 16 CROSS EXAMINATION (Continuing) 17 BY MR. WOODWORTH: 18 Q. 19 Doctor, since we were here a week ago, you returned to your home and then returned here again. 20 Did you have any further occasion to discuss the case 21 with counsel or representatives of Monsanto? 22 A. - No., I did not. ' .. 23 g. And did you do any further review or anything other than 24 what had been done prior to your testimony last week? 25 A. No, sir. Tri-City Court Reporters 5U6 State St. Saginaw, Michigan 4860} 4k. HARTOLDMONOQ44269 1 ft 2 3 4 Doctor, there's been some testimony in this case as to opinions of witnesses regarding health effects that may be associated with PCB poisoning. Doctor, I'm going to show you what's been marked as 5 Plaintiff's Exhibit No. 279A, and it has on there a number 6 of physical aspects related, apparently -- or supposedly or 7 allegedly related to PCB poisoning, Doctor. 8 9 10 A. In regard to this, could you tell us your opinion as to whether PCB's induce liver enzymes? First of all, when you say PCB's, you have to define what 11 12 13 14 15 ft 16 A. 17 ft 18 19 , A. 20 21 22 ft 23 24 2D A. PCB's you are talking about. You have to define whether there are benzofurans present in PCB's. So if you could be specific and tell me what you are talking about, I'11 answer the question. Well, let's talk about Monsanto rs Aroclors. Yes, sir. . And, in your opinion, would they cause induction of the liver enzymes? In the amount that the Monsanto employees were exposed to, I saw no evidence of liver inductions -- induction of liver enzymes. . .If we could go then beyond your references to Monsanto employees, but during the time that you were with Monsanto, I would imagine you reviewed literature regarding PCB's? Yes, sir. Tri-City Court Reporters 5226 State St. Saginaw, Michigan 48603 4259 HARTOLDMON0044270 1 Q. 2 3 4 A. 5 Ql 6 7 8 A. 9 Qt 10 11 12 13 14 A. 15 Q. 16 A. 17 18 19 20 21 22 23 24 20 And even possibly alter that, during the time of 1975 when you were a consultant for Monsanto, I imagine that you might have come across literature referring to PCB's? Yes, sir. And perhaps even after that' when you've been in your own private consulting business, have you continued with a review of the literature? At times , yes, sir. And then, in your opinion, not just restricting this to your review or your own contact with the Monsanto workers, the Monsanto employees, but with your review- of the literature, do you have an opinion as to whether or not they cause induction of liver enzymes? Which liver enzymes, sir? Well, any. The response of the liver to anychemical or any food is an induction of enzymes. If a person takes adrink ofalcohol, one gets some induction of liver enzymes. So that per se the induction of a liver enzyme is not a pathological situation. If you talk aoout abnormal presence of liver enzymes, I have not seen the increase in liver enzymes described in human cases from any Monsanto PCB's. I do not recollect if any liver enzyme studies were carried out' in the toxicological testing that was carried - ' , Tri-City Court Reporters 5226 Stale St. Saginaw, Michigan 4860) 4 2 60 HARTOLDMON0044271 1 2 3 4 ft 5 6 7 8 9 A. 10 It & 12 A. 13 14 15 16 A. 17 & 18 19 20 21 22 23 A. 24 25 0- out with our enzymes -- with our PCB's. At that particular time in the 1950's, the liver enzyme studies, which you are referring to, were not known or carried out. There were Monsanto studies that were commissioned with IBT and Younger Laboratories together with other literature during the 50's and 60's which in fact showed that the liver, and I believe you testified a week ago, was so to say the target organ of PCB's, is that correct? Yes, sir. Not with the Younger Laboratory studies. The Younger Laboratory studies was a simple acute screening. The LD-50? That's right. And so the target organ in the IBT studies was the liver. Doctor, can you tell us your opinion as to whether the PCB's crossed placental barrier within mammals? ' I can* t say that. I do not know. Doctor, is there within the literature on up through the time and shortly thereafter that you consulted with Monsanto, evidence supporting that there is formation of arene oxide intermediates during the metabolism of PCB's by several species including rhesus monkeys? Are you aware of that? I am aware that there are the studies. I'm not in a position to comment on them from a toxicological standpoint. Doctor, do you have any information or opinion whether the Tri-City Court Reporters 5226 Slate SI. Saginaw, Michigan 46605 4261 HARTOLDMON0044272 formation of arene oxide intermediates would in fact be ' important in considering carcinogenic potential within human beings? , A. No, sir, I have no opinion. Q. Doctor, I'm going to show you what's been marked and admitted as Plaintiff1s Exhibit No. 154 and that has been represented and admitted as a sales -- summary of sales of polychlorinated biphenyl, probably more specifically the Aroclors. I'm sorry, in fact, it has a note on it and I don't -- okay. . That information is in fact limited, is it not, by its note that appears on there? Does not- the note state that that is incomplete? A. I have never seen this before. I don't know what this refers to. . Do you want me to read all this? Q, No, I don' t, Doctor. And I wouldn't expect you to. It' s quite detailed. What we've done is made a summarization of those sales charts together with information that the Monsanto attorneys have provided us with sales to silo companies. While you were medical director of Monsanto, Doctor, were you aware of sales to silo companies of Aroclor 1254? . A. After I was told by Dr. Hill of Ohio State, Department of Health, I realized that, I had information that Aroclors were used in silo paint. Up to that time I had no idea of Tri-City Court Reporters 5X26 State St. Saginaw, Michigan 48605 '. 4262 HARTOLDMONOQ44273 1 it at all. 2 q. in 1970, then, that would have been? 3 A. That's correct. . 4 Q. Now, do you know Rogers Malone? Are you acquainted with the 5 man? '. 6 A. The name is vaguely familiar. I don't know what -- who he 7 was or -- I don't know anything about him. I've heard the S name sometime, but I don't know the man. 9 Q. We read his deposition at the beginning of the trial, Doctor, 10 and he was a salesman, I believe, he said, for Monsanto 11 during the 40's and 50's. He said that they -- that Monsanto 12 and he, as a salesman, began selling Aroclor 1254 to silo 13 companies in about 1947 . . 14 Now, this sales summary that you have before you does 15 in fact say that it isn't complete for the years of 1950's 16 and early 1960's , is that correct? 17 A. That is what it says here, correct. 18 Q. Yes. Well, it does in fact say that, does it? 19 A. It does say this, if it's written here. I don't know if this 20 is a correct statement or not. . 21 Q. Now, what we have is here, Doctor, starting back and assuming 22 the sales summary, what was said by whoever from Monsanto 23 wrote that on there, that it isn't complete for the 1950's 24 and 60's; and also assume that Rogers Malone is correct that 25 Monsanto started selling Aroclor 1254 to silo companies in Tri-City Court Reporters $U6 State St.' Saginaw, Michigan 4860) ; HARTOLDMON0044274 1 1947. 2 We do, in fact, have sales throughout a period of time 3 on up to 1965, do we not? 4 A. That chart says so. 5 Q. Okay. And this has been admitted, Doctor. Let me explain to you that this was what has been 6 7 provided by Monsanto to the plaintiffs in this case. A. 8 But I don't know -- this is the first time I've seen this chart, but I don't know whether these pounds of Aroclors, 9 where they went. Did they go on the outside of the silo? 10 Did they go someplace else? Do these silo people do anything 11 besides make silos? 12 13 I cannot assume that those pounds ended up on silo paint inside of: a silo. I don't know where they went. 14 Q. 15 When you retired in 1974, Doctor, you were medical director for all of Monsanto? 16 A. 17 Yes, sir. ; 18 Q. And your principal duty, as I understand it, from your direct testimony, oyer these years was to look after the health and 19 20 A. 21 safety of Monsanto employees, workers, is that correct? Yes , sir. Q. 22 23 And in pursuance of your duties, I would presume, and we partially established that, that part of your ongoing 24 education and to keep you up to date you would review reports 25 and p u blications from the scientific and medical . Tri-City Court Reporter* . 5x26 State St. Saginaw, Michigan 48603 ,, 4264 HARTOLDMON0044275 1 2 A. 3 ft 4 5 A. 6 7& A. 8 9 ft 10 IT A. 12 13 o. 14 15 16 17 18 19 20 21 22 ft 23 24 A. 25 ft 1iterature, would you not? ' Yes, sir. And this would be especially interesting if there was any publication as to effects or any information about Monsanto * s products? ' . Yes, sir. Or products similar to what Monsanto was manufacturing? Yes, sir. Doctor, there were two manufacturing plants in the United States for Aroclors, for PCB's, were there not? Sauget, Illinois, and Anniston, Alabama. ' Yes, sir. . Were there not at one point in time two other places within the Monsanto Company that manufactured PCB's, one in Japan and one in Great Britain? No, sir. As far as I know we never had a plant in Japan that manufactured PCB's. We did have a plant in Great Britain. We had -- the best of my knowledge, all we had in Japan was a fiber plant which made acrylic fiber which is the type of thing you see in carpets. The place in Great Britain that manufactured PCB's, was that in Wales? - . . I think it was, yes, sir. And I would assume by your previous answer that you were Tri-City Court Reporters 5226 State St. ; Saginaw, Michigan 4860} ' /oar HARTOLDMON0044276 t 2 A. 3 q. 4 5 6 7 A. 8 Qi 9 A. 10 Q. 11 12 A. 13 14 15 16 Qi 17 18 19 A 20 21 22 Q. 23 24 25 also medical director of that plant? Yes, sir. And if there were any complaints or workers' complaints or complaints from customers overseas in Great Britain regarding PCB's or Aroclors, would they come to your atten tion? Yes, sir, they would. Where would these complaints initially go? Which complaints? Assuming there were any. Workers' complaints, would they go right within the plant? . Yes, they would go to the nurse and to the plant doctor. We have a plant doctor in Ruabon and his name was Dr. Newman. He retired some time ago. I don't know Where he is now. I visited Ruabon twice. I don't know which years they were. And, Doctor, prior to 1970, if any complaints were received in Great Britain from consumers, the users of products, where would they go? They would go presumably to the plant doctor, the sales department in Great Britain. The sales department would send such complaints to me if they could not be handled in Europe. Would it be fair to say, Doctor, that prior to 1970 all . workers' complaints and all public complaints were in fact turned into a memorandum or made a note of, they would ultimately pass through your view for your inspection or your Tri-City Court Reporters 5226 Slate St. Saginaw, Michigan 48603 4266 ' HARTOLDMONOQ44277 1 2 A. 3 4 5 6 7 8 9 10 11 Q. 12 13 A. 14 Q. 15 16 17 A. 18 19 20 21 Q. 22 23 24 25 attention? I don't think you can quantify that by saying "all," Mr. Woodworth. I mean, I would think that any serious ones. Now, if we have to divide between Europe and the United States, there was certainly much better communication in the United States than there was in Europe. . And while I feel quite confident that any major complaint of a worker or customer in the United States would come to my desk, I can't be that confidentabout Europe. I just don't know. Was it the policy of Monsanto, prior to 1970, that these complaints should come to your attention? Major or minor? Not minor, certainly; major, yes. Would there not within your profession at that particular time, prior to 1970, a series of minor complaints, could indicate perhaps a major problem, would it not? No, sir. If a person has -- if a person had redness of the skin from a paint remover, that doesn't mean that they have got a major problem, even though they had it every six months for two years. Now, let* s divide these, what I've been talking about as complaints, into two'arenas,, First of all, workers1 complaints. If there was any thing above a minor -- what you termed a minor complaint, and it was --- there was notation made of it, would that Tri>City Court Reporters 5*26 State. St. Saginaw, Michigan 4860) HARTOLDMO N0044278 1 2 A. 3 Q. 4 5 A. 6 7 8 9 10 11 12 13 14 15 ft 16 17 18 19 20 21 22 A. 23 024 A. 25 Q- complaint ultimately end up within that worker's file? ' It should , yes . And would it not then be considered by Monsanto confidential ,as relatino between an employer and employee? I don't know what you mean by confidential between an ` employer and an employee. If I am considered an employee, I would certainly have access to it. If the government and the industrial medical service of the government in Great Britain, which was much more thorough in those days than ours was -- than the United States was before OSIIA, they would know about it, also. I do not recall what reports Ruabon plants had to make to the industrial council at Great Britain, but I certainly had to.make that. .' Let's tail about going from workers over to the public, people in. th.-e public and complaints that they might have had regarbinv possible personal or health effects. If cnero was any type of complaints or claims, would that not have- ended up, if it came to your attention, would it have re err. referred ov.~ . to the legal department prior to 1970? No, sir.. Not in an/ event or not necessarily? Not necessu _ _ly. . Would yc.- rate care of some of those? Tri-City Court Reporters 5**6 State St. Saginaw, Michigan 4S605 4268 HARTOLDMONOQ44279 ] A. 2 y. 3 4 5 A. 6 7 8 9 10 Ql IT 12 A. 13 y. 14 15 16 17 18 19 A. 20 Q, 21 A. 22 23 Q. 24 A. 25 y. Yes, sir, because there was no legal aspect to it at all . If there was some complaint that might have resulted in what you might have feared as litigation, where would that have gone? If there was a complaint that appeared to have legal ramifications, I would have consulted with the legal -- with our legal counsel, the in-house legal counsel. That would be a very -- constitute a very small percentage of the cases that came to my desk. Now, when you left Monsanto, about how many employees did it have, were under your purview? , 45,000 in the United States, 10,000 ex-U.S.A. I am going to suppose that Monsanto was not any different than any other industry or corporation at the time you left and that I would presume that there were complaints or suits, claims by workers for Workers' Compensation for injuries and ill health effects that occurred in the work place , were there not? . Wore there not work -- There were? You are talking about other companies? Are you talking about -- Within Monsanto. Certainly there were compensation cases. . And did any of these --- or, I'm sorry, when a worker made a . Tri-City Court Reporters 52X6 State St. Saginaw, Michigan 4060} HARTOLDMON0044280 1 2 3 4 A. 5 6 7 8 9 10 11 12 13 14 15 a 16 17 18 19 A. 20 Q21 A. 22 & 23 24 25 complaint or a claim for Workers' Compensation, would it be directed to your attention or to the legal department, or both? It very probably would not even be directed to the legal department. It certainly wouldn't be to mine. It ali wouid depend on the case. If a person had a fractured finger, it would be treated by the consulting specialist to whom we send the case. A report would be sent to the compensation board. If there were a claim for permanent disability of this finger, then either the safety director would accompany the worker down to the compensation board and let them decide it. If it were a case of permanent disability, it would be -- obviously , then legal counsel would enter the case. To your knowledge during the time that you were with Monsanto, did anyone ever make a claim for inhalation or disability from inhalation; not something such as a broken finger, but inhalation of chemicals? Any chemicals anyplace in Monsanto? Yes. Yes. During the 1950's and 60's, Doctor, who at Monsanto was responsible, if there was a person or a title, for looking after the health, safety and well-being of the purchasers, users, and consumers of the products that Monsanto put in Court Reporters 5226 State St. . , Saginaw, Michigan 4860) ' 4270 HARTOLDMON0044281 1 2 A. 3 0. 4 5 6 7 8 A. 9 10 11 12 13 14 0. 15 16 17 A. 18 0. 19 20 21 A. 22 23 24 0. 25 the marketplace? ' Would you repeat the question? Yes. During the 50' s and 60*s, prior to 1970, was there a person at Monsanto -- perhaps it would be better to ask if there was a person or a job position that was responsible for looking after the health, safety of purchasers or users of Monsantos products? Well, I think almost -- there was no individual person. I think almost every Monsanto employee was responsible for seeing that the product they made was in accord with the speficiations of the product; the people who sold material, sold it for the purposes for which it was intended, so I cant answer your question any differently than that. And the people who sold it for the purposes for which it was intended, that would include the Aroclor plasticizers, would it not? Yes, sir. ; And when it was sold to a silo company' as an ingredient in a silo sealant and as a silo plasticizer, that was a purpose for which that product was intended, was it not? I can * t answer that. I don't know anything about what Monsanto recommended that the material be used as an - ingredient in silo paint. Let's presume that knowledge. Let's presume that knowledge on the part of. an employee. You said that as an employee Tri-City Court Reporters 52X6 State St. Saginaw, Michigan 48603 ' HARTOLDMON0044282 1 2 3 4 5 6 7 A. 8 Q. 9 10 11 12 13 14 15 A. 16 17 18 Q. 19 20 21 A. 22 & 23 24 A. 25 they would sell it tor the purposes to which it was intended. . Let's presume that employee, a salesman, knew that it was being used as a plasticizer ingredient in silo seilant. In that sense would that be a purpose to which it was intended? I don't know whether that was correct or not. So prior to 1970, what you are saying, if I interpret it correctly, Doctor, is that there was no specific department and no specific person. If there were problems with products, it could be the salesman who might be looking after i it or you as medical director or perhaps it might go to the legal department or director of Organic Chemicals Division, something like that? Is that a question? Would you repeat that question? You have a number of phrases in there, clauses, that I'd like you to break down and ask me. Prior to 1970, Doctor, as I understand it, there is no one place within Monsanto that would be in charge of product safety, is that correct? That is not correct. Okay. Was there one place where these things would ultimately end up? If there were any aspects -- any health aspects related to Monsanto products in the consumers, such a place would be Tri-City Court Reporters 5226 State St. Saginaw, Michigan 48605 HARTOLDMON0044283 1 2 ft 3 A. 4 ft .5 6 A. 7 08 A. 9 ft 10 A. 11 ft 12 13 14 15 A. 16 17 18 19 20 ft 21 22 23 24 25 A. the medical department. And that would be your department? That's correct. And did that change after Mr. Papageorge was appointed manager of environmental pollution on January 1st, 1970? No, sir, it did not. It still was a medical department? That is correct. And did you work with Mr. Papageorge after January 1st, 1970? Yes, sir, I did. And did he review the complaints that came in or was there supposed to be any type of communication or relationship between the two, you and Mr. Papageorge, regarding any complaints? If the complaints were of an environmental aspect, not related to humans, such a complaint would be handled and -- referred to and handled by Mr. Papageorge. If there were complaints referable to alleged human effects, they would be referred tQ me. And as medical director prior to 1970, was it one of your responsibilities to make sure that Lucre was what would be called safe handling data on labels of Monsanto's products? Let's at least confine ourselves -- we'll cut it down to the Aroclors. The medical department was responsible for reviewing the safe Tri-City Court Reporters , 5226 State St. Saginaw, Michigan 46603 4273 HARTOLDMON0044284 1 handliny data which was generated by other areas in the . 2 company. 3 Q. . And just so I make surd I understand you properly, this data 4 would be generated within other areas of the company, come 5 to the medical department, you would comprise a.label or something, is that right? 6 7 A. Not a label. I would comprise a statement concerning -- that would describe the toxicological properties or the 8 9 safe handling recommendations. Q. 10 And would that be what you might call -- or could I call it 11 a data sheet on the product for safe handling? 12 A. Well, there was everything from a label this size that 13 went to this size that went on to a 55-gallon drum, to a 14 data sheet or a developmenta1 sheet, yes, sir. 15 Q. The labels in the 50's that were on Monsanto's products, the 16 Aroclors, were they developed by you? 17 A. The labels were not developed by me, no, sir. 18 Q. The contents of the labels? 19 A. Not all the contents. If there were a material relating 20 to toxicological aspect or warning statements, they were 21 reviewed by me, yes, sir, and approved by me. 22 Q. I guess that is what I was aiming at, Doctor,, rather than 23 the weight or .whatever of the product; the toxicological 24 effect would have been ultimately brought to your attention 25 or for your approval? ;4 Tri-City Court Reporters 5X26 Stale St. . Saginaw. Michigan 48601 " 4 27 4 HARTOLDMONOQ44285 1 A. 2 Q. 3 4 5 A. 6 7 Q. 8 9 10 11 A. 12 13 Q. 14 15 A. 16 Q. 17 A. 18 19 20 Q. 21 22 A. 23 24 y. 25 Yes, sir. Was part of this safe handling data that was needed, was that required by the Department of Transportation or was that in some way related to freight classification? Would you break that down a little?. There is two questions there. Break them down one at a time. I wasn't aware there was a difference,, apparently there is. Was the safe handling data that was put into the labels for Monsanto's products, say, in the 50's and 60's, was that partly for what we would call freight classification? Yes, sir. I'm not sure of the time frame. I don't know when that was necessary. And then the same question as to the Department of Transportation. ' Yes, sir. And was that required by the DOT? Yes. I don't know when, though. I don't know what your. question -- your statement is the 50's or 60's is correct. I don't know if this was necessary. There were some LD-50 tests done in 1962 by, I believe, Younger Laboratories on Aroclor 1254. I know there were some done. I don't know, if it was -- if 1962 is the correct date. I don't remember the date it was. Were one of the reasons for these tests for that freight classification? TrI-CIty Court Reporters , 5226 State St. Saginaw, Michigan 48605 HARTOLDMON0044286 1 A. Yes, sir. 2 Q. Was that the primary reason for the Younger test that you 3 needed at that time freight classification data, so you 4 had to run that or commission an LD-50 test as to the 5 toxicity -- to toxicity? 6 A. I don't think that was the primary reason. I think we wanted 7 some information about the acute toxicity in case we had 8 to answer the question: What will happen if somebody spills 9 10 (X this on me? The Younger tests, let's assume they were in 1962, that were I i 11 done for LD-50, that is the acute toxicity test. 12 Are you aware of whether or not all the Arodors or a 13 number of Aroclors were tested at that time for the LD-50? 14 A. I'm sure all of them were not. I don't know how many w6re. 15 Q, Would it be fair to say that a number of them were, to your 16 recollection? 17 A. I doh' t recall the number. 18 Q. If different Aroclors were tested at that particular time, 19 would it have been for the same reason? 20 A. Which reason, freight or whether we wanted to know -- to 21 get some approximation of the acute hazard? 22 (X Either. 23 A. It very probably was for one of the two, yes, sir. 24 Q. And if you would have sent four, five Aroclors in, would it 25 have been for one or the other or the same percentage* Tri-City Court Reporters 5226 State St. Saginaw, Michigan 48605 A HARTOLDMON0044287 between the -- either freight or acute- effects for the Whole 1 group? 2 A. 3 If we sent in four or five, and I do not know whether we sent in four or five, I do not recall whether we sent in 4 four or five, whether or not the primary reason .was for '! ' 5 freight classification or whether it was because we wanted 6 to get some idea of the gross toxicity of the product to 7 8 9 Qt 10 answer inquiries. I cannot say. I would believe it would be more likely to be the latter. You just wanted the acute toxicity information? A. 11 That's correct. ' Ql 12 If you sent the whole grou pin, wouldn't the purpose for testing have been the same for the entire group? 13 A. 14 Ql 15 16 17 A. 18 Q. 19 Yes, sir, I think so. Do you recall what you said in your deposition to the Howell and Parsons case as to the reason for the 1962 Younger acute -- or LD-50 test? No, sir,I don' t recall. I'm going to -- perhaps, Doctor, I should just let you read this from page 14 of your deposition in the Howell and 20 Parsons case. And, for the record-, this was taken in St. 21 Louis on September 20, 1979. 22 I'm going to ask you to start reading right there at 23 line 16, the question and then your answer. 24 A. 25 Question: Can you tell me -- ' Tri-City Court Reporters 5XZ6 State St. . Saginaw, Michigan 4SiO) 4277 HARTOLDMONOQ44288 1 Q. 2 3 A. 4 5& 6 A. 7& 8 9 to 11 A. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Just read it to yourself, Doctor, maybe to refresh your recollection. Okay. Yes, sir, I read it. Okay. ' Can I keep it here pr -- Just let me look at it. Okay. Was it not that the '62 tests were done for freight classification and some 1963 tests were done for the acute data? Is that correct? No, sir, I'm not sure that's correct, because if I may read this. You asked me: "Can you tell me, sir, why the 1962 and '63 tests were ' done? Answer: Yes. I would think that the '62 tests was done because of freight classification. I said I would think. At that particular time we had arrived at. a certain amount of data on an acute basis to find out what the particular freight classifications there were. And I believe this is why it was done. The 1963 test must have been done to the -- we wanted to find out what the classification of solutions of Aroclor 4465 would have, should people be subjected to prolonged or repeated skin contact with the material. ' I don't know at this time whether that was important Tri-City Court Reporters 5X26 State St. Saginaw, Michigan 46605 . , 4278 HARTOLDMONOQ44289 t 2 3 4 05 6 7 A. 8 ft 9 10 11 12 A. 13 14 ft 15 A. 16 ft 17 18 19 A. 20 21 022 23 24 25 to us in '63. I cannot remember whether this was important. That is what I have said here. This is Consistent with what I have said the last two minutes. I wasn't sure, Doctor, that is why I asked. . It wasn't me for the record that asked you.this question, was it, back in ' 79 ? It was not me? No, it was not you. Dootor, would you agree that LD-50 tests are deficient in the sense that when you give a dosage to animals, it may still take another 14, 15, 20 days after that dosage to kill some of them, that some of them may live on? That is the purpose of an LD-50, you want to kill half of them. Right. .. . ' So the other half obviously are living. And one of the animals -- if you'd give a dosage to a group of animals, that some of them may die immediately, is that correct? They will die within a matter of hours, days, depending on what compounds you are giving. , Well, wouldn't there be a deficiency in the test in the sense that it doesn't really consider the chronic effects? You were talking acute, but if an animal lives on for three weeks after that and then dies, it may not be included within that test result? fri-CIty Court Reporters 5226 State St. Saginaw, Michigan 43605 ' 4279 HARTOLDMON0044290 1 2 A. 3 4 5 6 7 8 9 Qt to A. 11 12 13 Q. 14 15 16 A. 17 Q. 18 19 A. 20 21 Q. 22 23 24 25 A. Do you have any understanding of that? Well, that is a very minor point. In the first place, an acute test is not supposed to be a chronic test, so it is not deficient in the sense -- what you are trying to do is find out a gross toxicity of the compound. And the common way is to take a group of animals, say, 25, 50, and give divided doses until you hit a dose that will kill half the animals. And that is a one-shot thing, just like that? That is what the test is, acute LD-50. Now, you generally wait a period of time, I don't know whether it's two weeks, to see if they1 re going to die. That was going to be my next question. What is the period of time that you wait after you give them the one dose to see that they die? Probably two weeks . And then if one dies in 15 days, they wouldn't be included within that two weeks? That's correct. But it really wouldn't make an awful lot of difference,, Would another problem with the LD-50 test, as to the Aroclors, be that one would have to know specifically what congeners the animals were being exposed to, to the congeners of PCB? Would you define congeners? Tri-City Court Reporters 5226 State St. - ' Saginaw, Michigan 48603 HARTOLDMON0044291 (X 1 There's been a lot of testimony within this case as to. .. toxicity of various congeners and I believe there's been 2 testimony that there are -- that PCB's -- that the Aroclors 3 are made up of a number of different PCB's. And I can't 4 recall the exact number offhand. 5 THE COURT: Approximately 210. 6 Ql 7 About 210 different PCB's. Are you familiar with that? A. 8 There are a number of isomers of PCB's and Aroclor with a specific number. Suppose we start with 1254 . That does @ not mean that it is all 1254, it means that the average 10 chlorination of the whole -- of the whole compound is 54 11 percent. 12 That means some of them are chlorinated to 42 percent, 13 . 48 percent, some might be 60, 62 percent, but the average 14 chlorination is 54 percent. 15 Qi 16 Is not the batch itself, Aroclor 1254, 54 percent chlorine and within that 54 percent chlorine you might have within 17 Aroclor 1254 a mixture of 90 to 100 of those different 18 isomers? 19 A. 20 First of all, it is :;-. l 54 pei cent chlorine. It is chlorinated to 54 percent of the amount of chlorine of these 21 various -- hydrogen is replaced by chlorine, that doesn't 22 mean that the material is 54 percent chlorine. I don't know 23 what the exact amount of chlorine it is. ; 24 Now, what was the second part of the question? 25 Tri-City Court Reporters 52X6 State St. Saginaw, Michigan 4S605 . 4281 HARTOLDMONOQ44292 t Qt 2 3 4 A. 5 Q. 6 A. 7 8 9 to 11 12 Q. 13 14 15 16 17 18 A. 19 Q. 20 21 22 23 A. 24 Q. 25 Let's get back to my original question, Doctor, as to wouldn't the toxicity of the LD-50 depend upon the specific isomers; some are more toxic than others. ' And some are less toxic. Absolutely. But you are testing a standard product and all these things that are in there are tested in one unit. So that whether the compound that is chlorinated to 48 percent or chlorinated to 60 percent, is in there, doesn't really make any differ ence to the end result because you are testing the whole compound,, And are you saying then that if we take 1254 and if we took a -- say, an Aroclor 1254 , place it in a five-gallon pail that was made one week and we take a pail that was made a week later, we're going to have the same isomers, number of isomers in relation to one another in each pail, or aren't they going to be more of a random selection? I can't answer that. Doctor, last week I believe you testified that you had given testimony or depositions in other cases, but I think you said the only other one relating to Aroclors was the Howell and Parsons case, is that correct? I don't recall that is what I said, Mr. Woodworth. And I don' t have a note of it, that is why I wanted to clarify that, or if I may ask it at this point. Tri-City Court Reporters . 5226 State St. Saginaw, Michigan 43605 4282 HARTOLDMON0044293 1 A. 2 ft 3 4 A. 5 06 A. 7 8 9 10 11 12 13 14 15 16 ft 17 18 A. 19 :& 20 -A. 2! ft 22 23 A. 24 & 25 A. Would you ask it? What do you want? . Have you testified by way of court testimony or deposition in any other cases regarding Aroclors? Yes, sir. And what were they? ' ' '. I testified in a case of Aroclor in Cincinnati that was before OSHA, in the use of Aroclors in transformers. I testified in either North Carolin a or South Carolina in the case of Aroclors in leaks from transformers or transformer oil. Neither of these cases was Monsanto involved. I gave a deposition in an environmental aspect of Aroclor in St. Louis, but I don't know if the site was Michigan or Wisconsin. Monsanto was involved in the latter instance. And do you know what, in the latter, do you know what Aroclor was involved? In the last one? Yes, the latter instance, the deposition in St. Louis. I don't recall which one. Is that the one I have referred to or are you accepting that one, the Howell and Parsons? It is not the Howell and Parsons. There is another one besides Howell and Parsons? Yes, sir. Iri-City Court Reporters 5XX6 State St. , Saginaw, Michigan 4860) " HARTOLDMON0044294 & t A. 2 a 3 A. 4 Q. 5 A. 6 7 o. A. 8 & 9 A. 10 & 11 12 13 14 15 16 o. 17 18 19 20 21 22 23 24 A. 25 Do you know when that was approximately. Doctor? Four years ago, five years ago. . And were there health effects claimed within that case? No, sir, none. Doctor, in the North Carolina case, what case was that? . Ward Transformer. Did you testify in the Holly Farms case? No ,, Or the supposed what is called Campbell1s chicken case? No, sir. Doctor, were you medical director of Monsanto when Monsanto was manufacturing agent orange? ' MR. JUNGERHELD: Your Honor, I wonder if we might approach the bench? . (Whereupon a discussion was held out of the presence of the jury.) ' Doctor, we just discussed Aroclors and going to other chemicals that were manufactured by Monsanto. Have you ever testified by court testimony or by deposition regarding -- for one side of the other, regarding any chemicals manufactured by Monsanto as to any -- in cases where there were claims of damage to persons or property? And property would be animals. . Now, does that take in too much area? I will have to correct you. I'm not testifying for anybody Tri-City Court Reporters 5226 State St. Saginaw, Michigan 48603 : 4284 HARTOLDMON0044295 1 2 3 ft 4 5 6 7 8 A. 9 ft 10 A. 11 ft 12 A. 13 14 IS 16 ft 17 A. 18 19 20 ft 21 A. 22 ft 23 24 25 or against anybody. So if you would withdraw that item and then you would simplify the question, please. Okay. We went over your testimony that you have given in the Aroclor matters or matters related to Aroclor. Now, have you given any other testimony, and let's except federal agencies such as OSHA or EPA, just for,the sake of convenience, have you testified in any other cases? I have not testified, sir. Not by deposition or by court testimony? Yes, by deposition I have. And what instances were those, Doctor'? I gave a deposition in a compensation case. I shouldn't say compensation case, I gave a deposition in cases involving exposure to 2,4,5-T in Nitro,' West- Virginia. I gave a deposition in cases referring to 2,4,5-T in New York. ' All right. Are those the only other instances, then? I gave a deposition as far a s fact is concerned, as a factual witness, in a case involving Sturgeon, Missouri, with 2,4,5-T. No, sorry, that was dichlorophenyl. And then have we covered it all? To the best of my recollection. Let's go back to the tests regarding 1962, 1963 , and even . tests that might have been performed before that while you were medical director. Was it you or your department that commissioned these Tri-City Court Reporters 5226 State St. Saginaw, Michigan 48605 HARTOLDMON0044296 t 2 3 4 A. 5 ft 6 7 8 A. 9 to It 12 13 ft 14 15 A. 16 17 18 19 ft 20 21 22 23 A. 24 ft 25 tests? I don't recall exactly how you" testified to Mr. JungerheId and we talked about the Kettering Lab and a number of laboratories. Was it you? Either I or my department, yes, sir,, And when you went about doing this, would you tell them what you were looking for, what you wanted? For example, you want a subacute test or you want an inhalation test or -- We really wouldn't go in and tell the person do this test. We would say here's our problem, here is the information we want to obtain, would you suggest what type of tests you think would be necessary to give us this result, give us this knowledge. So you'd say that you were seeking a type of knowledge and turn it over to them? .: Not turn it over to them. We would discuss whether we wanted an acute test, a 30-day inhalation test, or a 90-day feeding test, depending on what the problem was that we might have, that we could foresee. Would there be occasions when you were communicating with these people about the tests that you informed them what use the product was being put to? Would that be part of the information you would provide as a purpose to the test? Yes, sir. And did you ever tell any laboratory that Aroclor 1254 was being used as an ingredient in silo sealants? Tri-City Court Reporters $6 State St. Saginaw, Michigan 48603- 428fi HARTOLDMON0044297 1 A. 2 ft 3 4 A. .:& 6 ft 7 8 9 10 A. 11 12 ft 13 14 TS 16 A. 17 ft 18 19 20 21 22 23 A. 24 ft 25 No, sir. Do you know whether or not any salesmen represented Aroclor 1254 as a good, capable plasticizier for an ingredient in silo sealants? No, sir, I do not. , We've seen some labels, Doctor. And prior to 1970 and through the years -- well, perhaps the years you were medical director, did the labels on Monsanto's Aroclor 1254 ever warn against eating or drinking the material? No, sir. This was an industrial chemical and that usually is not put on industrial chemical labels, not to eat it. And, in fact, I think you testified to Mr. Jungerheld in your testimony relating prior to 1942, when you were checking your workers in the plant, you were looking for skin contact and inhalation, you didn't expect them to eat the stuff. That's correct. At one point in time, Doctor, it seems that Monsanto did take some action. And maybe not one particular point in time, maybe it was a series of different points, for protection of its workers within the plants from contact and inhalation of the Aroclors or the PCS Aroclors, is that right. Yes, sir. . And would part of that protection that it took be having a change of clothing there for the worker? Tri-City Court Reporters 52Z6 Slate St. Saginaw, Michigan 4860} 4287 HARTOLDMONOQ44298 1 A. 2 ft 3 4 A. 5 6 7 ft 8 A. 9 ft to It A. 12 13 14 15 ft 16 17 A. 18 ft 19 A. 20 21 22 ft 23 24 A. 25 ft Yes , sir. Would part of it have been shoe covers for the workers, some type of foot covering? I don't believe so. I don't think there was that much contact on the floor that we would need shoe covering. ,' I don't know. Would some of it have been gloves or hand protection? Yes, sir, there would be gloves. And some of it would have been -- and, I don't, know, would it have been any kind of face shield or glasses? If there were a possibility of spraying out of pipes or pumps or something, but i do not recall face shields. Goggles usually are used throughout a chemical company in all departments. . And respirators were at one point made available to employees( were they not, on the premises for safety measure? You are still talking about Arodors? Yes, PCB Aroclors. . They certainly were available. Whether they would be needed to be used or not with the exhaust ventilation, I don't know whether they were used,, And Monsanto also recommended that its PCB Aroclor workers bathe or shower at the end of a shift and a change of clothes: Yes, sir And this - Tri-City Court Reporters $216 State St. Saginaw, Michigan 48605 4288 HARTOLDMONOQ44299 1 A. 2 Q. 3 4 5 6L 7 8 ft 9 10 11 12 13 14 15 16 17 18 19 20 21 A. 22 0. 23 24 25 To the best of my recollection, yes. Okay. And this would be in the interest' of the safety and well-being of the employees? That is what Monsanto, as a good employer, was trying to do for its employees, is that correct? , . Yes, sir. If these people were exposed to skin contact with the material, a question of using clean clothes came in. Doctor, last week I asked you a question about what historical. information you might have possessed about Aroclors in the workplace prior to your arrival there in the mid 1930's and taking on part time your duties as medical director or working in the medical department. . And I made reference to the Anniston, Alabama, plant and a worker that I might- have referred to as *-- I asked you if you might have recalled him, a black worker. I've had an opportunity to go through my notes, Doctor, and perhaps if I could re-ask you about that. Are you aware of the paper written in 1936 by Dr. Jack Jones and Dr. Herbert Eldon of Atlanta, Georgia, regarding PCB exposure in the Anniston plant from 1930 to 1933? No, sir, I'm not. Were you aware of any reference within a document that they might have at that time of chloracne in workers in the ' workplace, 23 out of 24 workers up to 1933 in the Anniston plant suffering chloracne? Tri-City Court Reporters 5Z26 State St. . ; Saginaw, Michigan 43603 42R9 HARTOLDMON0044300 1 A. No, sir. 2 That was 1930 to 1933? 3 q. Yes. A paper published in 1936 by Dr. Jones and Eldon. 4 A. in 1933 I do not even know if Anniston belonged to Monsanto. 5 And I did not come -- I think I came to work at Monsanto in a 1936. And I believe the first time I visited Anniston was 7 something in '37 or '38. , 8 Q. That is what I'm asking. Perhaps I should have made it 9 clearer. to Your historical knowledge not specifically being with 11 Monsanto, but your historical knowledge as to PCB's in the 12 environmental action of the workplace. 13 A. I have no knowledge of that article or those two doctors you 14 talked about. 15 (X You referred to Dr. Drinker and said there were two Dr. 16 Drinkers. 17 A. Yes, sir. 18 (X One was Cecil, isn't it? 19 A. The other was Phillip. 20 Q. And during the 1930's there were publications by the two 21 doctors, were there not? 22 A. I don'tknow. Cecil was the one that did most of the publi 23 cation. I don't know if Phillip was involved. 24 CX Were you familiar with Phillip in publication along with Dr. 25 ' Warren and Bennett in 1937 in the Journal of Industrial Tri-City Court Reporters 5226 State St. Saginaw, Michigan 4S605 . 4290 HARTOLDMON0044301 1 Hygiene and Toxicology? 2 A. I feel sure I read it because that was one of the journals 3 that we got, but 1 cannot give you details of it. If you have 4 it, I will be happy to comment on it. . 5 Q. Perhaps if I can attempt to refresh your recollection as to 6 a report within that article of three fatal cases among 7 seven workers of jaundice -- 8 MR. JUNGERHELD: Just a moment. I'm going to 9 object to the procedure. The Doctor has indicated that he 10 does not recall that paper specifically. 11 Counsel is now trying to testify as to what the paper 12 said. The Doctor has offered if he wants to give him the 13 paper so he can road it; he will be glad to comment on it. 14 So I don't think 'this is a fair procedure. . 18 MR. WOODWORTH: Well, Your Honor, I can get the 16 paper at recess. I have some of the papers here with me. 17 I think that he said that he commonly read -- that it was 18 one of the publications they received, it was the Journal of 19 Industrial Hygiene and Toxicology, and I don't think that is 20 so prejudicial as to ask him if he recollects certain events 21 which might have been reported within an article. 22 23 24 25 (X THE COURT; It does imply that it is within the article and without having the article I don't think it's fair to read from it, so I will sustain the objection. ; What I'll do is limit it then, Your Honor, as to without Tri-City Court Reporters 5ZZ6 State St. Saginaw, Michigan 48603 4291 HARTOLDMON0044302 1 groat detail, as to any report in 1936 by Dr,, Drinker, Warren 2 and Bennett as to any claims of liver -- chloracne or liver 3 atrophy problems in the workplace related to chlorinated 4 naphthalenes and PCB's. . ' 5 A. I'm not familiar with the details. I cannot recollect the 6 details. I certainly know that he talked about,chloracne 7 giving liver problems. I mean, sorry, chlorinated naphtha 8 lene giving liver problems. 9 & You remember that article then? 10 A. I remember the article. I don't remember the details. 11 & Do you recall whether or not, then. Doctor, within that articl 12 there was any reference to jaundice? 13 A. To the best of my recollection, the people who had severe 14 liver damage had jaundice, yes, sir. 15 And do you know whether or not there was any reference to 16 cirrhosis? . 17 A. I cannot recall. 18 & Going on to Dr. Cecil Drinker's article. He published one -- 19 do you recall the one that he published in the same magazine 20 in 1939 regarding chlorinated hydrocarbons and effects they 21 might have had upon the liver? 22 A. I don't recall the date. I don't recall the details of it. 23 0- May, 1939. 24 A. Again, Do you have the article? 25 Q. Yes, I do, Doctor. Perhaps, so we can move along, I can let Iri-Cily Court Reporters S2%6 State St. Saginaw, -Michigan 4H601 HARTOLDMON0044303 1 you look -- I can gut additional ones at the break. I will 2 ask you which ones you recollect and I can get you the other 3 ones, too, during the break because I have a few here and not 4 all -- 5 THE COURT: (Inaudible.) 6 g. Do you recollect during the war, and you not being -- or you 7 not being with Monsanto during the war, but any reports of 8 effects of mixtures of halo wax and Aroclor or effects of 9 PCB's with skin painting on rabbits in 1943 and 1944? 10 A. By whom? 11 g, Okay. . 12 Ac And where? 13 Q. 1943 would be by Dr. Von Wendell or Weitz, Halla, and 14 Denton, when it was reported in the publication entitled IS Rubber Age. In 1944 by Dr. J.W. Miller, published in Public 16 Health Reports. And both of them referred to skin painting 17 of rabbits. 18 A. With halo wax? 19 Q. One was halo wax and Aroclor and the other was PCB's? 20 A. I do not recall those articles. 21 g Doctor, are you familiar with the Walsh Healy Act that came 22 into existence in the early 1950's? . 23 A. I should remember the name and that is all I remember about 24 it. 2S (X Do,you recollect whether it had to do with tolerance levels : Tri-City Court Reporters ; 5226 State St. - Saginaw, Michigan 48603 ' 4293 HARTOLDMON0044304 1 for inhalation in the workplace of chemicals? 2 A. I have no recollection of the details of the Walsh Healy 3 Act. 4 Ct Are you familiar with the publication of Flynn and Jarvic in 5 1936 regarding halogenatod hydrocarbons and chlorinated hydro 6 carbons? 7 A. Which one and where were they published? 8 Q. Okay. I'm going to have to look at my notes again. I doh't 9 have that one with me. 10 That was published in the proceedings of Society of 11 Experimental Biology in New York in 1936. 12 A. 1 do not recall the article and I don't know which we are 13 talking about. Before I came with Monsanto, Monsanto had Dr. 14 Flynn, a Dr. Flynn, I don't"know if it's the same Flynn, 15 do some work with some Aroclors. I don' t know if that is what 16 you are referring to. 17 Q. Do you remember Dr. Swartz that published a number of articles, 18 one out with Dr. Barlow in 1942 in the United States Public 19 Health Reports, then again alone in 1943 in JAMA, prior to tha:. 20 in 1936 with JAMA? 21 A. I remember a Dr. Swartz, yes. Is that the question you asked 22 me or do I remember the article? . 23 Q. First of all, do you remember Dr. Swartz ? 24 A. Yes. . 25 Q. And do you remember his articles and what they generally dealt Tri'Ciiy Court Reporters 5Z16 Stale St. Saginaw, Michigan 4860} HARTOLDMON0044305 1 with? 2 A. They dealt with skin because he was a dermatologist. And I 3 presume he was talking about either chlorinated naphthalene 4 or chlorinated diphenyl. I don't know. I'm sure I've seen 5 the articles sometime in my life. . 6 ft You testified in answer to Mr. Jungerheld as to your use of 7 the Kettering Lab at the University of Cincinnati? 8 A. Yes, sir, I did. 9 ft And you knew Dr. Treon there? 10 A. Yes, sir. _ 11 ft And Dr. Treon in 1955 gave a preliminary report, and sub 12 sequently in 1956 gave a report, did he not, to Monsanto as 13 to the comparative factors involved in the inhalation of 14 Aroclor 1242 and 1254? 15 A. Yes, sir. 16 ft And there was some reported liver damage and other tissue 17 damage as a result of inhalation of Aroclor 1254 at .11 parts 18 per million level? 19 A. 1 don't know the details. 20 ft And I would conceive that that was heated Aroclors? 21 A. Oh, yes, it has to be. 22 ft Doctor, are you. familiar with the American. Conference of 23 Industrial Hygiene? 24 A. Yes, sir. . 25 ft And are you aware of whether they took any action in 1957 as Tri-City Court Reporters . S2Z6 State St. Saginaw, Michigan 4S60S .' ` 4295 HARTOLDMON0044306 1 to the lowering of the threshold limit value of PCB inhala .2 tion in the workplace? 3 A. Yes, sir, because they used Monsanto data to do that. 4 Qt And what was it lowered to? Can you recall?. 5 A. It was lowered to .5 milligrams, just a moment, on one Aroclor, 6 and I think it remained at 1 on another Aroclor. I'm not sure 7 which one was which. 8 Qt In fact, I had .5 parts per million on 1254. 9 When you say milligrams, that would mean milligram 10 kilogram -- . 11 A. Milligrams per cubic meter. 12 Qt Would that be .5 parts per million? 13 A. We get very involved in milligrams per cubic meter and 14 parts per million in the air, blit 1 believe they use it 15 milligrams per cubic meter. 16 Qt Are you familiar with Dr. Elkins' reference work published 17 in 1959, The Chemistry of Industrial Toxicology? 18 A. I'm not familiar with it. I have met Dr. Elkins 35 years ago. 19 I've seen his book sometime maybe 30, 35 years ago, but I'm 20 not familiar with the book. 21 Q. Doctor, going into the '60's, the studies that were commission 22 ed with the Younger Laboratories, the LD-50 studies upon 23 autopsy. These animals showed some tissue damage and liver 24 damage, did they not? 25 A. No, that is a faulty interpretation. If you kill an animal Tri-City Court Reporters 5Z26 State St. Saginaw, Michigan 48603 AC HARTOLDMON0044307 1 on an LD-50 by giving a largo enough amount of the material, 2 you will get congestion in all the abdominal organs. I mean, 3 they die. When an animal dies, things happen to his organs, 4 before he dies or along with dying. The Younger Laboratory 5 work showed some irritation of the intestines. .' 6 Well, obviously if you are putting down into a rat one 7 or two times the volume of the stomach in an oil, you will 8 get irritation of the intestinal tract. S The Younger Laboratory also showed congestion of the 10 1iver. Well, almost all acute LD-501s, no matter what 11 compound they're using, if they die within one or two days 12 or die as a result of the LD-50, you will get a congested 13 . 1iver, And that does not mean that that's a very significant 14 item. You are not looking for pathology. 15 So they didn't even do microscopic pathology on those 16 animals. It was just a very crude type of test for a specific 17 purpose. . 18 Q. And it did affirm that the liver was the target organ again, 19 did it not? 20 A. No, you can 11 say that. 21 Q, Doctor, were you aware of Dr. McLaughlin's paper in 1963 22 regarding that PCB's might be embryotic or teratogenic in 23 eggs? 24 A.' No, sir, I'm not. 1 may have seen it, but I'm certainly not 25 familiar with it or recall any details about it. Tri-City Court Reporters 5226 State St. ' Saginaw, Michigan 48601 . a e\ *<> HARTOLDMON0044308 1 Q. And when you were: medical director at Monsanto during the 2 1960's, did you become aware of Dr. Jensen's paper or publica- ? tion in 1966 about the existence of PCB in the environment? 4 A. : Is, this the Swede? 5 Q. Yes. . 6 A. Yes. . 7 Ql And did you subsequently become familiar with Dr. Risebrough's 8 article shortly after that about the PCB ** s in the, I think, 9 pelicans and maybe seals out in California? 10 A. Yes, sir. 11 & And then I think you already testified that you were aware 12 of the Yusho incident? 13 A. Yes, sir. 14 (jl I think there was some testimony from you, Doctor, that - 15 as to Yusho and the PCB1s and that containing furans and 16 dibenzofurans, is that correct? 17 A. Yes, sir. , 18 Q. Did you know that in 1970? 19 A. Know what? . 20 Q. That there were dibenzofurans contaminants in the Japanese 21 Aroclors or was that Yusho? 22 .... .MR. JUNGERHELD: Excuse me, they were not in 23 Japanese Aroclors. ; 24 THE COURT: I will sustain the objection. 25 MR. WOODWORTH: My mistake. ` Tri-City Court Reporters 52X6 State St. Saginaw, Michigan 4860) .. 4298 HARTOLDMON0044309 1 Q. The Japanese PCB ' s . 2 A. In the 1970's? 3 Q. Yes. It was being reported from '68 to 170 just within the 4 literature as being thought of as purely PCB incidents? 5 A. Yes, it was. 6 Q. Doctor, were you aware of the passing of the National Environ 7 mental Protection Act in 1970? 8 A. Vaguely, yes, sir. I know that they passed it -- an Environ 9 mental Protection Act. I don't know the details of it at the 10 present date. 11 Qi And also in 1970 congress passed, and we discussed this last 12 week, what was called FIFR, the Federal Insecticide, Fungicide 13 and Rodenticide Act in 1970? 14 A. I'm not sure of the date and I heard the initials, I don't 15 know any of the details about the act at the present time. 16 (X Were you aware of Dr. Gustafson's publication in 1970 within 17 Environmental Science and Technology Journal? Dr. Gustafson 18 being from the Federal Water Quality Administration. 19 A. Was I aware in 1970 or aware now? 20 Q. Of his publication in 1970. 21 A. In 1970? 22 Q. Of PCB' s. . 23 A. To the best of ray recollection I never heard of Dr. Gustafson. 24 1 don't know whether 1 knew him in 1970 or not. 25 Q. Doctor, did you, as medical director of Monsanto in 1970, Tifi-City Court Reporters 5226 Stale St. Saginaw, Michigan 4S603 . - 4299 HARTOLDMON0044310 1 receive any 380 let Luis from EPA? 2 A. Did I receive what? 3 & Any 380 letters. Any demand letters from the EPA in 1970? 4 A. 1 don't know at the present date what a 380 letter is and ... 5 1 don't know if I knew then. Or if I got any then, I have 6 no recollection. If you could tell me what a 380 letter is 7 I might be able to remember if I got any. 8 & A letter from the EPA or from the federal government demand 9 ing that Monsanto issue or put forth certain sales informatior 10 as to PCB's. 11 A. I have no recollection of ever getting anything like that. 12 & Doctor, can you tell us what is meant by the terra of product 13 stewardship? .. 14 A. Meant by whom? . 15 Q- Within the chemical industry and what you might mean by it as 16 a former medical director of Monsanto. 17 A. I can't speak for the chemical industry. I can speak for my 18 self as a former medical director. 19 Q. If you would, please. 20 A. Product stewardship means that you manufacture a product in 21 accord with your specifications. That you sell it to in 22 dividuals in accordance with what their order is. That you do . 23 sell it to them in a manner in accord with general manufac 24 turing sales practices in the industry. And I think that's -- 25 you do your -- well; I think that is it as far as I'm concerned. Tri-City Court Reporters 5226 State St. .. Saginaw, Michigan 48603 4300 HARTOLDMON0044311 t & Would it also include the concept of industry trying to make 2 a safe product, a product that is safe on the marketplace? 3 A. Safe for the intended use, yes, sir. 4 Q. And would it also include, in your definition, industry 5 attempting to see what uses are being made of' its product ' 6 that it's putting in the marketplace? 7 A. I don't believe I could comment on that, but I don't see how 8 anybody can follow down to the ultimate use here in a product 9 that might go through distributors, customers . It' s outside 10 my experience and scope. I can't answer that. It Q. Doctor, in your opinion, would a manufacturer -- should it 12 bo the manufacturer who is more responsible or more knowledge 13 able, let's says, of it's product, then the user of the com 14 ponents and what it's made up of? 15 A. A manufacturer certainly is more knowledgeable of about what 16 the product is made up of, yes, sir. 17 Q. Even more so. than the government? 18 A. You mean the United States government? 19 Q. Yes. 20 A. Yes, sir. 21 Q. In your opinion, Doctor, the concept of product stewardship, 22 should a manufacturer be free to sell a product, any product 23 it desires, on the marketplace and leave the determination of 24 the wholesomeness or the safety of that product up to the 25 government to determine? Tri-City Court Reporters . 5226 State St. . ' Saginaw, Michigan 4860) , 430] HARTOLDMONOQ44312 1 A. 1 don't - 2 (X Or should the manufacturer participate in that decision or 3 assist the public? 4 A. Well, that's got so many ramifications that I can't answer 5 that yes or no. I don't know. 6 I mean, if a man sells an axe to a customer, does that 7 imply that he should tell them don't use this on your wife? 8 Q. Fair enough. I guess I asked for that, Doctor. 9 But let's go to chemicals. Let's go to chemicals. Would 10 you say that a chemical manufacturer then would be free to 11 sell whatever chemicals it saw fit for whatever intended pur 12 poses on the marketplace and leave the determination whether 13 they are wholesome or safe up to the government? 14 A. I don't think the government enters into the safety of all 15 chemicals that are sold in the United States. 16 tx Should it not be the responsibility of the manufacturer to 17 also assist or to primarily determine the safety and suit 18 ability of its product when it goes on the marketplace for the 19 purposes to which it's intended? 20 A. To which the manufacturer intends, yes, sir. 21 Q. And for the purposes for which it' s sold? 22 A. Yes, sir, if it's sold for one particular purpose. However, 23 the manufacturer has no idea of knowing what the intended 24 user is liable to use this product for. 25 Q. Let's go to Aroclor 1254 and these silo companies I put up Tri-City Court Reporters . 5226 State St. Saginaw, Michigan 48603 '. HARTOLDMON0044313 1 here before. 2 Rogers Malone testified that he reported back to Monsanto 3 that silo companies were using this material in silo sealant* 4 putting it on the inside of silos as a sealant. 5 Now -- ' 6 MR. JUNGERHELD: No* no* Your Honor. Excuse me* 7 Your Honor* I have to object. I believe Counsel is mis- 8 characterizing the testimony. 9 Mr. Malone, as I recall, testified it was being used in 10 silo paint and he didn't know whether it was inside * outside 11 on the roofs, or what. 12 MR. WOODWORTH; Okay. Perhaps then* Your Honor* 13 if 1 might get another exhibit. 14 ft Did you know David Bechtold at Monsanto? 15 A. The name is vaguely familiar. I may very well have known him 16 in the 170's or '60's when I was with Monsanto. I don't 17 recal1 or connect any name, face or position with that name at 18 the present time. 19 ft Doctor* as medical director and the person who was at one 20 point in time responsible for putting labels on goods for 21 Monsanto -- 22 A.; ' I was responsible for reviewing safe handling and warning 23 data on labels * yes, sir. 24 ft And in that sense, would you state -- would you agree that it 25 doesn't require scientific certitude to warn of potential Tri-City Court Reporters 5226 State St. Saginaw, Michigan 4860} 4303 HARTOLDMON0044314 I dangers? 2 A. I find that hard to answer that question. Would you - 3 fit What point do-you determine that there should be warnings that 4 have to go to a user of a product? Does it require absolute 5 scientific certitude there is going to be a danger to the 6 user or consumer of the product? 7 A. No, sir. You do not put on, for example, on an industrial 8 chemical, don't take internally, don't mix it in root beer, 9 don't do this. ' 10 a I'm going to show you, and I showed you this last week, 11 Monsanto's technical bulletin that's been admitted as 12 Defendant's Exhibit No. 31. And I believe you said this was 13 dated March' of 1970. 14 And there is reference in there that this material should 15 not be used -- shouldn't be used as paint or sealant and it 16 mentions silos. 17 Is that correct? 18 A. I will read it. It says: 19 "Some specific applications for the use of PCB should 20 definitely be avoided are- in paints and sealants for 21 swimming pools, paints and waterproofing agents in silos 22 and other buildings where food products for humans or 23 1 animals are stored, and as a component of any container 24 of wrapping used in the packaging of food products." 25 Yes, sir. Tri-City Court Reporters 5ZZ6 State St. Saginaw,' Michigan 48603 4304 HARTOLDMON0044315 1 And then. Doctor, we come to in March -- also in March of 2 1970, your memorandum that you wrote to Mr. Papageorge. 3 Now, Doctor, do you know whether that bulletin that you 4 have before you was published pr.ior or subsequent to this 5 letter? The bulletin being dated March of 19-70. ` 6 A. I don't know. 7 & Assuming that this was published in 1970, as you have testi 8 fied, would it be fair to assume that prior to March of 1970, 9 then, that Monsanto had knowledge that Aroclor 1254 or Aroclor P 10 were being used in silo paints and silo sealants? 11 A. If this bulletin were published in -- before 19 -- March of 12 1974 -- .* 13 Qt 1970, I believe. 14 A. I do not know whether or not they had knowledge that it was 15 being used in paints. I certainly seem to have knowledge that 16 it shouldn't be used in paints, but whether they had knowledge 17 that it should not be used in paints, I don't know. 18 Q. Was this the first you heard of it when you wrote -- when you 19 got the communication from Dr. Hill? ,. 20 A. Yes, sir. ., 21 g. Do you know what Monsanto did in March of 1970 or what informatio n 22 Monsanto Company had as to silo sealants in order to write 23 that bulletin? ' 24 A. No, sir, I do not. 25 g. Do you know who wrote that bulletin or whose department that Tri-City Court Reporters 5226 State St. , Saginaw. Michigan <$8605 ' . 4305 HARTOLDMON0044316 1 came into? 2 A. No, sir, I do not. 3 Q. Do you know Dr. Tucker at Monsanto? ' 4 A. There was a Dr. Tucker who was in the analytical laboratory. 5 y ' I'm going to show you what's been marked and admitted as 6 Plaintiff's Exhibit 180B and ask if you have ever seen that 7 before? 8 A. X see that X received a copy. Xt does not -- I'm not sure 9 whether I -- 1 have no recollection of it. This doesn't jog 10 my memory. This was 14 years ago. I don't recall it. 11 Ql Doesn't Dr. Tucker, within that letter, identify scrapings 12 from a silo as, in fact, being Monsanto's product, Aroclor? 13 A. It says in here, "Unaltered Aroclor 1254 was found on the 14 silo scrapings at a level of 2.8.percent." Yes. 15 Ql That bulletin, that technical bulletin before you says that 16 it doesn't have anything to do with what problems or re 17 percussions might result as a result of Aroclor 1243 to paint, 18 does it? 19 A. I haven't read it all. Should I read it? 20 Q. If you desire. You don't have to read it out loud, Doctor. 21 Are you going to read the entire booklet? Why don't we 22 . do that during break and I'11 move' on and give you an oppor 23 tunity over the recess. 24 Were you aware of claims that developed out of Ohio as 25 to Aroclors or PCD's being used in silo sealants inside the Tri-City Court Reporters . 5226 Stale St. , Saginaw, Michigan 4S605 HARTOLDMON0044317 1 silos? 2 A. Claims for what and when? 3 y. Claims for economic loss, let' s start _ with . 4 A. At what point in time? . 5 CX 1970. 6 A. No, sir, I do not recall claims in 1970. 7 Q- Let me show you Plaintiff1s Proposed Exhibit' 153D and 153E 8 which have been admitted as being Mr. Papageorge's memorandum 9 -- confidential memorandum to a number of people, including 10 yourself, regarding the Humphrey's and regarding the 11 Schwarzwalder's, and ask you if you have seen those 12 before. : 13 A. I believe I have seen these, yes, sir. 14 Q. And, Doctor, were you aware, besides of any economic claims 15 of 1970, of any claims for animal loss or health effects as a 16 result of that material being used as a silo sealant? 17 A. There are no claims in here, in this memorandum. So I said 18 in 1970 to the best of my recollection I have no knowledge 19 of any claims for economic loss. And you had me these two 20 exhibits and I'm going over the first one, Exhibit 153E, and 21 they describe Mr. Humphrey's problem, but I don't see any 22 claims. . . 23 Why don't you look at Mr. Schwarzwalder's, then. 24 A. Fine. . 25 Q. Paragraph 8? ' Tri-City Court Reporters 5116 State St. ' Saginaw, Michigan 48603 4307 HARTOLDMON0044318 1 A. Yes, sir. 2 0, Is there not a reference to a number of lost animals, 20 3 calves? 4 A. Yes, sir. 5 0 How old, two or three days? 6 A. Two to three days, yes, sir. 7 0 Did you make note of that as medical director for Monsanto? 8 A. I don't know what you mean by "make note." 9 0 Well, here we. have a person saying or perhaps attributing, 10 whether or not it's truthful, that Mr. Papageorge has pointed It out that a man has said he lost about 20 calves, and he has 12 certain levels of Aroclor PCB on his farm. 13 A. Yes. 14 0 Is that significant to you or was it significant to you as 15 medical director of Monsanto? 16 A. Yes, sir, it was. 17 0 In what sense? 18 A. It was significant that Mr. Schwarzwalder states that he had 19 PCB in the milk and it's also significant that Mr. Papageorge 20 was handling the matter. 21 0 Let's go to the 20 calves. And would you read Paragraph 8, 22 23 A. 24 25 please, out loud? , "During the period January, February and March, which Mr. Schwarzwalder refers to as the PCB period, he claims he lost 20 newborn calves, two to three days old, valued at TriCity Court Reporters S%%6 State St. Saginaw, Michigan 48603 4308 1 $100 each. He also claims that he had an unusual high 2 incidence of false pregnancies." 3 Q. And those are in fact claims, are they not? Hr. Schwarzwalder 4 claim those things? 5 A. Well, what you are saying there, you are using the term, 6 ''states" and "claims" as interchangeable. When you ask me 7 different knowledge of any claims, I had inferred that he 8 meant claims against Monsanto. 9 Mr. Schwarzwalder claims to me, that means he states he 10 lost. Who'd he claim it to, I don't know. I don't know what 11 you mean by claims in that sense. This is in the sense Mr. 12 Schwarzwalder states he lost 20 newborn calves. 13 Q. Are you saying, Doctor, then, that had no meaning to you, 14 that was -- whatever Mr. Schwarzwalder was saying he says, 15 that means nothing? 16 A. No, I'm not saying -- 17 Q. What significance if any did that have to you, that statement, 18 without going through what statements and claims, Paragraph 19 ' A, what significance did that have to you as medical director 20 at Monsanto? 21 A. The significance to me that Mr. Schwarzwalder stated he lost 22 23 a 24 A. 25 20 calves in January and February. ' ' Well --- I haven't finished. He lost 20 calves. And it also is significant to me that Mr. Papageorgo was going to investigate Tri-City Court Reporters 5226 State St. Saginaw, Michigan 48603 4309 HARTOLDMON0044320 1 this to see if there was any way they could find out what was 2 the cause of these calves dying. 3 Q. And were you aware of.other people making claims, not for 4 calves but for economic losses relating to silos in Ohio 5 besides Schwarzwalder and Humphrey at that time? 6 A. I recollect that there were some. I do not know the names or 7 the numbers of cases. 8 Q. We still have on the blackboard here some writing. And this 9 is left over from the testimony of Mr. Egan who testified he 10 ran Michigan Silo Company out of Massillon, Ohio, for a 11 number of years. And he recollected besides Humphrey and 12 Schwarzwalder, that there was also a Baldwin. . 13 Do you remember Kenneth Baldwin? 14 A. No, sir, 1 do not ,, 15 Q. Any claims that he may have made? ' 16 A. I do not. 17 Q. How about Dean Spicer? ; 18 A. I did not recollect any of them. 19 Q. How about Mr. Jones? Do you recollect any claims that Mr. 20 Jones -- 21 A. Are you defining claims against Monsanto or - 22 (X Yes, yes. Claims against Monsanto. . 23 A. Because in this particular date there was this claim against 24 Monsanto. I do not recall. . 25 Q. How about Mr. Dillman? ' .4 TrI-CIty Court Reporters 5226 Slate SI. Saginaw, Michigan 4860} 4 31 n HARTOLDMON0044321 1 A. 1 do not recall a Mr. Dillman. 2 y. Loren or William Dillman? 3 A. No, sir, I do not. - 4 THE COURT: In light of the hour, we'll take 5 our mid-morning recess, ;` ' 6 (Whereupon a legal matter ensued out of the 7 presence of the Jury.) 8 (Whereupon a recess was taken.) 9 THE COURT: You may continue, Mr. Woodworth. 10 MR. WOODWORTH: Thank you. Your Honor. 11 & (By Mr. Woodworth, continuing:) Dr. Kelly, you referred in 12 direct examination to a communication that you had with Mr. 13 Egan of Michigan Silo Company. ' 14 Do you remember that? 15 A. Yes. 16 Q. And that was expressed to us in the form or reference within 17 a letter that Mr. Egan had written to Broomfield Silo. 18 Did you ask Mr. Egan in your communication with him for 19 a list of the silos that were built using this coating in 20 Ohio? 21 A. No, sir, I have no recollection of doing that. 22 Q. You had knowledge that there were other silos in Ohio besides 23 the ones you were initially informed of by Dr. Hill back in 24 March of 1970, were you not? . 25 A. I do not'know how many silos Dr. Hill referred to or whether Tri-City Court Reporters 5116 State St. Saginaw, Mlohlgan 4860) 4311 HARTOLDMONOQ44322 1 he referred to silos at alio He talked -- I recollect him 2 talking to me about PCB1s in the milk. So 1 do not know how 3 many silos he was talking about. 4 Q. Was there not some concern on your part about PCB's being in 5 the animals themselves, in their fat? ' . 6 A. No, sir. 7 Q, And did jpu then take any action besides contacting Mr. 8 Papageorge about having something done about this besides the 9 memorandum you wrote to Mr. Papageorge? 10 A. Well, the memorandum I wrote to Mr. Papageorge, I believe, 11 1 carboned in the represented people of that particular 12 division who were in charge of the PCB's. 13 Q. And why did you do that, to give them notice and let them 14 know about the problem that occurred out of Ohio? 15 A. Yes, sd they could take some action. . 16 Q. 17 . A. That they could do something? Yes. . 18 Q. To assist these farmers? 19 A. 1 think their action was to assure that the silos would not 20 be painted with any -- on the inside with any compound that 21 included PCB's. 22 Q. How about those that were already in existence? What did you 23 have in your mind at that time about those that were already 24 out there? , 2D A. I had nothing in my mind about that. Tri-City Court Reporters . 5226 State St. Saginaw, Michigan. 48605 ' 4312 HARTOLDMON0044323 1 Q. Do you think you should have told -- or the people should have 2 been told, those silo owners, all through Ohio, should have 3 been told not to use those silos? 4 A. I think it depended on whether or not the paint was flaking S off in their silos. ' . 6 Q. And do you think that Monsanto at that time should have told 7 or gone into other states and told silo owners, or would it 8 be the -- depends upon whether it was flaking off or not? 9 A, I think it would depend upon whose responsibility it was, to whether it was the responsibility of the state, whether it ' 'j 11 was the responsibility of the individuals that put the paint 12 on the silos. I don't know whose responsibility it was. 13 Q. Would you think then, when you say the responsibility of 14 the state, you would think that is the government's responsi 15 bility to go out then and tell them, and that gets back to 16 my prior questions, the responsibility of the government in 17 this matter? 18 A. Well, the government in a food problem is involved. The 19 government is not involved in all industrial chemicals. It 2a appeared that certainly Dr. Hill was involved in the cases 21 in Ohio. 22 Q. May we presume Monsanto made a profit off the sale of this 23 material, Aroclor 1254? 24 A. I do not know whether it was a profit or a loss. 1 don't 25 know. Tri-City Court Reporters 5*16 State St. Saginaw, Michigan 48603 4313 HARTOLDMON0044324 1 (X Monsanto is a pro fit corporation? 2 A. They want to be, yes, sir. . 3 Qt I asked you before the break, Doctor, whether or not you 4 were aware of any claims and you answered that and then you 5 used the word -- statements that were -- or I was confused. 6 If I may ask you this, Doctor, out of the State of 7 Ohio, at any time in the 1970's, were you made aware of any 8 type of information, whether it be statements of people, 9 claims of people, complaints, grievances, whatsoever, any 10 communications or any information from the people having 11 problems with -- probelms either economically, with their animals 12 or with their persons regarding silo sealants? 13 A. Would you repeat that to me? I've lost the verb. 14 THE COURT: Go ahead, re-read it. 15 . (Whereupon the question was read by the Reporter.f 16 A.. I had no knowledge of any statements or claims about injuries 17 to anyone's person. 18 Q. Okay. 19 A. If you include Mr. Egan's statement, I believe was that - 20 was he out of Ohio? I don't know if he was in Ohio or 21 Michigan. I was aware of that. 22 Q. , What I want to get away from, Doctor, is the strick -- and it 23 was such a long question, is get away from the stricter word "statement'' or the word "claim". I'm talking about, did you get any information in the Tri-City Court Reporters 5226 Stale St. Saginaw, Michigan 48605 HARTOLDMONO044325 1 Medical Department about problems, any types of problems 2 relating to this stuff being used in silo sealants? . 3 A. No, sir, I have no recollection of it. 4 Ql I'm going to direct your attention to the memorandum, 5 . Plaintiff's Exhibit 179A.' 6 Now, in the introductory paragraph, if we can just first 7 address ourselves to that, and I'll give you an opportunity 8 to read it first yourself. 8 A. Yes, I read the first paragraph. 10 Qi There is information conveyed to you that there were PCB's . 11 found in the milk of at least three herds in Ohio, is there 12 not? 13 A. Three different silos. I don't know if they were all --- oh, 14 three herds, yes. 15 & Three herds? 16 A. Okay. 17 Qi And it states concentrations with in the milk and concentrations 18 in the material. . 19 May we presume material is silage, next to the walls? 20 A. I would presume that, yes. 21 Q. And that there were concentrations in the milk and it states 22 the parts per million and some of the miIk had been destroyed, 23 right? 24 A. Yes, sir. 25 Qi And would that load one to presuppose that someone suffered Tri-City Court Reporters S6 State St. Saginaw, 'Michigan 4860} ; . 4315 : HARTOLDMON0044326 1 some economic damage or don't we know, if milk had to be 2 destroyed? 3 A. Yes, I.would think they suffered economic damage* 4 & The second paragraph, if you first want to read it to your 5 self, familiarise yourself. 6 A. Yes, I've read it. 7 ft Now, as to the first sentence where you refer to containing 8 1254, may we presume that what you're referring to is Aroclor 9 1254, Monsanto's PCB's? 10 A* Yes, sir. 11 Q- And you also state in the second sentence that referring to 12 Aroclor, again, you don't know if there is any other Aroclor 13 in the formulation, perhaps if I use this, but we don't know 14 the coating manufacturer, although this could be found out 15 if important. 16 Yes, sir. 17 & Was that, may we take it -- or may I take it, as to asking 18 Mr. Papageorge whether that was important or not? 19 A. I would think so, yes, sir. 20 CL And the presence, you said,, of PCB's in the silage, came from 21 flaking off of the material and possibly from leeching out 22 during the silage storage, correct? 23 A. Yes, sir. 24 ft And that as to destroying, they had to destroy a hundred fifty 25 tons of silage valued at about $30 per ton. Tri-City Court Reporters . 51X6 Slate St. Saginaw, Michigan 48603 4316 HARTOLDMON0044327 1 Agai n, that would load one to believe that these people 2 were suffering some economic damage? 3 A. Yes, sir. 4 Q. As a rough guess, they would consider there may be about 50 5 other silos involved in Ohio? 6 A. Is that a question? 7 Q. Yes. 8 A. What is the question? 9 Q. It does in fact say that, does it not? 10 A. It does say that, yes. ' 11 Q. And that is what information -- and that is what thoughts you 12 had in your mind at that time that there might be up to 50 13 other silos? . 14 A. No, that is what Dr. Hill told me. 15 0, You didn't have any opinion as to whether this was accurate? 16 A I knew nothing at all about it. All I know is what Dr. Hill 17 told me. 18 Q. Were you just passing that along to Dr. Papageorge? 19 A. Yes, sir. 20 0. And they're also looking into the fat contamination of the 21 cows themselves. You weren't concerned with the fat contamina 22 tion of cows?- 23 A. Well, they hadn't any yet. They had no figures. 24 0. So you weren't concerned? That was ray question. Were you 25 concerned about that at that point? : Tri-City Court Reporters 5126 State St. " , Saginaw, Michigan 4060) HARTOLDMON0044328 1 A. No, sir. 2 ft .That wasn't a concern of any fat contamination that may have 3 gotten from -- 4 A. I was -- (Inaudible.) . 5 ft In fact, you kneto that PCB's, Aroclors> were fat soluble? 6 A. Yes, but I do not know if the question of retention was known 7 by me at that time. 8 ft If you'd read the next sentence which is the next paragraph. 9 A. Yes, sir, I've read it. 1.0 ft 11 A. 12 ft 13 14 A. 15 ft 16 A. 17 ft 18 19 A. 20 21 ft 22 23 A. 24 ft 25 You considered this a serious problem then, did you not? Yes, sir, I did. And that it would have two types of overtones, it would have legal overtones -- Yes, sir. -- right? And publicity overtones? Yes. This would be publicity overtones to Monsanto, bad publicity, so to say? Bad publicity to a lot of people. To the milk industry, to -- yes. And it brings us to again the words serious -- brings us to a serious point, correct? If you'd read this next paragraph. Yes, sir. And the next sentence, "When are we going to tell our customers not to use any Aroclor in any paint formulation that Yri-CIty Court Reporters 5226 State St. Saginaw, Michigan 4860) , HARTOLDMON0044329 1 it contacts food, feud or water for animals or humans?" 2 A. Yes, sir. . 3 Qt Okay. And you thought that was very important that that be 4 done, correct? 5 A. Yes, sir. ' . ' 6 q. You refer to the non-extractibility, but I think that a 7 blanket recommendation should be made against its use, is that 8 right? 9 A. Yes, sir. ' 10 Q,, Now, at that time did you consider Aroclor 1254 deleterious to 11 human health if a person ingested it or if they might have 12 gotten it from farm products? 13 A. I did not then or I don't now. 14 Q. And did,you consider deleterious to animal health if an animal 15 might have ingested it, a farm animal? ; 16 A. How much would they ingest? It depends on how much they would 17 ingest. 18 Q. So in certain circumstances it could affect them, is that what 19 you're saying? 20 A. It is possible. 21 Qt If they ate enough of it? 22 A. That1 s right ,, 23 X And you didn't -- 24 A. If there was Aroclor in it. ;, 25 Q. And you didn't know at this particular time how much any Tri-City Court Reporters 5226 State St. Saginaw, Michigan 48605 '' 4319 HARTOLDMON0044330 1 animals were eating? 2 A. No, sir. .. 3 Q. And you didn't know anything about these other 50 silos that 4 were existing? 5 A. No, sir. 6 Qi I'm going to now direct your attention back to the memorandums 7 or memorandi of Mr. Papageorge. The one on Mr. Schwarzwalder 8 being 153-0. That has typed at the top of that the word, 9 "Confidential," does it not? 1 A, Yes, sir. . - 11 Q. And that was to be confidential between Mr. Papageorge and 12 those who were to receive it, yourself included? 13 A. I can't answer that because I didn't -- I don't know what 14 was in Mr. Papageorge's mind when he got that. 15 Q. When you got that item, when you saw the word, "Confidential,11 16 did you immediately distribute those contents to anyone? 17 A. Everyone in the department that was -- that had a relationship 18 to this, certainly.. 19 >. When you receive a memorandum with confidential stamped on the 20 top or typed on the top of it, when you were an employee of 2T Monsanto, what did that mean to you? 22 A. It meant keep it in your files. 23 Q. Keep it confidential, in fact? : 24 A. Well, confidential means different things to different people. 25 This is, I think, a little different than secrecy in the Army. Tri-City Court Reporters 52X6 State St. Saginaw, Michigan 4860) . HARTOLDMON0044331 1 1 just don't know what it means to various people We didn't 2 have a locked file for this thing. 3 Q. Did you recommend, after writing this memorandum, that -- 4 A. We* re back on this memorandum (Indicating.)? 5 Q. Yes, the March 30th, 1970, memorandum. 6 Did you recommend after writing that, that Monsanto in 7 fact contact trade journals or run advertisements to make sure a that these people owning silos will be contacted or did you 9 want to leave that up to the government in Ohio? 10 A. No, I didn't want to leave it up to the government of Ohio ii solely. I think Mr. Papageorge carried out quite a number 12 of activities to get the information out to our customers. 13 Q. And did he take care of the customers, their complaints, their i 14 claims, to your knowledge? 15 A. Well, I don't know what complaints you are referring to. 16 Q. Any complaints that you may have received, you, as medical 17 director or Mr. Papageorge working jointly with him in his 18 -- in this problem as to any economic loss that farmers may 19 have suffered. 20 A. Well, I did not receive any of those complaints. 21 Q, You didn't have -- you didn't get any of that information? 22 A. No, sir, to the.best of my recollection I did not. 23 MR. WOODWORTH: Thank you. That's all I have. Doctor. THE COURT: Mr. Jungerheld? Tri-City Court Reporters S2Z6 State St. . . Saginaw, Michigan 48605 ' 4321 HARTOLDMONOQ44332 1 REDIRECT EXAMINATION 2 BY MR. JUNGERIIELD: . 3 ft Dr. Kelly, going'back to the chronic effect studies, the 4 feeding studies that you told us about where you indicated 5 that it- was' determined that 10 PPM was a safe level as you 6 found it in the rats, was that 10 PPM in the total diet? 7 a. Yes, 10 parts per million of Aroclor 1254 in the total part 8 of the diet, yes. Everything they ate contained 10 parts 9 per million of it. 10 Of course, that was a safe level for rats. There was 11 higher levels that were safe for male or female dogs, but 12 10 parts per million was safe for everything. 13 ft And when we, perhaps, for a point of clarification, when we 14 talk about the 10 PPM in the total diet, we've had, for 15 instance, some exhibits introduced here which have shown what 16 the PCB level was in milk and milk fat and it varies. But 17 let's say if it was .5, in other words, half a part per 18 million in the total, in the milk, not just the milk fat, 19 but, the milk, would it be correct then that if a person con 20 sumed nc?thing but milk, the PCB concentration then in the 21 total diet would be .5 PPM's? 22 A. One half ..part per million, yes, sir. 23 ft If the person ate nothing but milk? A. That's correct. . ft If the person ate something besides milk, maybe some Tri-City Court Reporters 5226 State St. Saginaw, Michigan 46605 ' .. 4322 HARTOLDMON0044333 t vegetables and that kind of thing, would the percentage then 2 of PCB in the total diet be further reduced? 3 A. Yes, considerably. 4 0. Mr.. Woodworth asked you about the availability of respirators 5 to the PCB.workers in the plant. 6 Could you tell us what would be the process, what would 7 be the exposure, in other words, you would be concerned about 8 to have respirators available? 9 A. Yes. Whenever you are pumping something, a pump may leak 10 in a packing. This material was hot. If they're going to 11 do something with the pump, they would wear a respirator. 12 When you are filling a 55-gallon drum with this hose coming 13 down into the opening this large, material is still hot. 14 If the exhaust system were not' good- or were not working at 15 that particular time, you would get vapors coming out of this 16 hole, hot vapors. So you would put the respirators on them. 17 0. This would deal then with exposure to hot fumes? . 18 A. Yes, sir. , 19 Qt Dr. Kelly, do you know whether or not Monsanto acquired the 20 Anniston Plant in 1935? 21 A. I knew they acquired it prior to my coming with Monsanto. I9m 22 not sure of the date, but I understand it is around 1935, yes, 23 sir. 24 0. Dr. Kelly, you indicated that in 1957 some organization that 25 Mr. Woodworth mentioned the name of, which escapes me, but it Tri-City Court Reporters 5X26 State St. Saginaw, Michigan 48603 . HARTOLDMON0044334 1 sounded like a government organization, used Monsanto's 2 data to lower the workplace exposure to PCB. And you gave us 3 . a figure- 1 think it was .5 milligrams per cubic meter of 4 air. 5 A. Yest sir. 6 & And is this what you were talking about; that is, the content 7 in the air? t 8 A- Yes, sir. 9 When you use milligrams per cubic meter, here we are 10 talking about a gas that is vaporized out of the material, 11 the hot material. It's distributed through the air. 12 So if you collect it, a cubic meter of air, you would havs 13 half a milligram of this material. All this gas would have 14 to be condensed down into a liquid and weighed and that is what 15 it is. 16 & Dr. Kelly, from the exhibit up there, from your memorandum 17 from you to Mr. Papageorge, well, not from the memorandum, 18 but apparently from Dr. Hill, that apparently about the time 19 of this memorandum you learned of this milk presence of 20 PCB, is that correct? 21 A. Yes, sir,, I think it was the day before or something like 22 that. It was shortly before that. 23 o. So in terms of a time, sequence here, in March of 1970, is 24 it correct, that you then learned of the presence of PCB 25 in milk? Tri-City Court Reporters 526 State St. Saginaw, Michigan 48603 4324 HARTOLDMON0044335 1 A. Yes, sir. 2 gt is it correct then that in March of 1970 you wrote the 3 memorandum to Mr. Papageorge? 4 A. Yes, sir. . ' 5 g* Was it about the same time that you had the conference with 6 Mr. Egan of the Michigan Silo Company? 7 A. Yes, sir. 8 gt All of this occurred then within a very short period of time, 9 is that correct? 1.0 A. Yes, sir. 11 Qt Dr. Kelly, was it your impression when you talked to Dr. Hill, 12 that he seemed to have a handle on the situation in Ohio? 13 . MR. WOODWORTH: Objection, calling for conjecture 14 and leading and suggestive. " 15 MR. JUNGERHELD: Well, Your Honor, I would 16 disagree with that. I'm asking for his impression. He was 17 asked numerous questions by Counsel about what he learned from 18 Dr. Hill and I am asking if he developed an impression from 19 Dr. Hill as to the Ohio situation. . 20 . THE COURT: All right. I will allow his testi 21 mony as to his impression, but I don't think you should lead 22 him, though. You did lead him. '- . 23 Doctor, you can testify as to your impression. 24 g. Okay. Can you tell us what your impressions were when you 25 had the conversation with Dr. Hill of Ohio as to the situation Vrl-CIty Court Reporters . 5%6 Stale St. Saginaw, Michigan 4S603 4325 HARTOLDMONOQ44336 1 in Ohio? 2 A. Yes. He was dealing with milk which is a product that the 3 government authorities don't want anything foreign put in, 4 as a rule,..whether it's water, vitamins, anything. So he was 5 concerned that there was a foreign material of two-tenths of 6 a part per million. 7 He did not express, to the best of my recollection, any 8 thought that this was a health hazard or anything else, 9 except it was in the milk, they don't like foreign material 10 . in milk, so they were destroying the milk. ' It Q. And did the concentrations that Dr. Hill gave to you, .2 12 PPM in the silage in the center of the silo, 20 PPM in the 13 . material next to the wall, 20.1 PPM and .6 PPM in the milk., 14 did those numbers cause you any particular concern? 15 A. Not concern from the health aspect, from the concern that I, 16 too, agreed that things shouldn't be in milk. It should just 17 be milk. 18 MR. JUNGERHELD: Your Honor, I believe that is 19 all. 20 THE COURTS Mr. Davidson? 21 MR. DAVIDSONs No questions, Your Honor. 22 THE COURTS Mr. Woodworth? 23 RECROSS-EXAMINATION 24 BY MR. WOODWORTH s . 25 Q. Dr. Kelly, you mentioned within that memorandum that those Tri-City Court Reporters 5ZX6 State St. Saginaw, Michigan 48601 ' , j HARTOLDMON0044337 1 silos had boon coated from 1967. 2 Did you have any thoughts that these people on these 3 farms might have been drinking that milk that was contaminated 4 from 1967 up until the time Dr. Hill got ahold of you? 5 A. Did I have any thoughts that they might have? 6 0 Yes ,, 7 A. Yes. a 0 Did that give you any concern? 9 A. No, sir. . 10 0 Regardless of age and physical condition of a person, that . ii didn't give you any concern? 12 A. I did not think then or now that one-tenth to six-tenths of 13 a part per million of Aroclor 1254 in milk has any untoward 14 health effect. 15 0 And you were taking safeguards within your factories to 16 protect workers from exposure to inhalation and escaping 17 contents of this product, and you were not concerned neither 18 then nor now as to people consuming any levels or these levels 19 of milk with PCB's in them? 20 A. Well, there is an enormous difference in exposure of the 21 amount they take in. 22 0 1 will grant you that. 23 A. Well, that, I think, in dealing with any product, you have to 24 figure what is the toxicology of it and how much you are 25 getting. You get ethyl toxin in peanut butter. Ethyl toxin Tri-City Court Reporters ` $226 State St. Sagttiaw, Michigan 4860$ 4327 HARTOLDMON0044338 t is a very serious carcinogen, but it's in peanut butter in 2 parts per million or fractions of parts per million, but it 3 doesn't concern anybody because of the level. 4 0. Doctor, you didn't follow those people in Ohio? That didn't 5 give you any concern to follow them perhaps for epidemiologies . 6 study that might have been consuming these products off their 7 farm to see whether a low dose over a long period of time 8 might have had an effect upon them, is that correct? 9 A. What was your question? Did I follow them epidemiologically? 10 0i Yes. 11 A. No, sir. 12 0i And there was not information in 1970, there were no long 13 term human epidemiological studies at that point in time, were 14 there? 15 A. No, sir, but there were long-term toxicological data. 16 0. Okay. But I'm talking human epidemiological. There was no 17 information at the time, was there? 18 A. There was no human epidemiological data in 1970, no, sir. 19 0. . And here you are, as an employee, as a medical doctor, an 20 employee of a manufacturer who manufactured this product, pre 21 sented with an opportunity to observe a number of farmers for 22 a period.of time and you weren't 'given that opportunity or 23 you did not desire to follow? 24 Can we establish that? 25 A. I didn 't see any reason to do it. Tri-City Cuuri Reporters 57Z6 State St. .. . Saginaw, Michigan 48603 . HARTOLDMON0044339 1 & Was it your choice whether you could do it or not? 2 A. I'm sure if there was a reason in my own mind, I would have 3 had the opportunity to do it. 4 & Would it have helped you at all. Doctor, in 1970 to make a 5 decision if you would have known about all the complaints, 6 all the claims, all the allegations that were going on about 7 PCB's and effects they might have been having upon animals 8 and any human complaints that might have resulted, if any? 9 MR. JUNGERHELD: Well, object to the form of 10 the question. Counsel is testifying to a lot of things that 11 there is no support for, to a lot of things that there is no 12 evidence in this case about. 13 THE COURT: He had an "if any" to it.. I will 14 allow it'. IS A. May I hear it again? 16 . (Whereupon the question was read by the Reporter cI 17 First of all, I had no knowledge about any human effects, 18 period. 19 Number two, the amount of claims' that' the people were 20 having, economic claims that they v/ere having, had to do with 21 adulteration of milk and adulteration of silo -- silage. 22 1 would certainly not have done any epidemiological studies 23 on the basis of that. ; 24 So the answer is no, it would not have'. 25 & Assuming there were, and let's just assume there were tfi-Chy Court Reporters 52*6 State St. Saginaw, Michigan 4S605 . A -?9Q HARTOLDMON0044340 1 complaints that someone -- that some of these farmers did make 2 in 1970, ' 71, complaints about human health effects, which 3 they were alleging in some way might have been related to 4 PCB. 5 Do you know where they went within Monsanto with those 6 complaints? 7 A. To me. 8 Q, And you say you' didn't receive any, is that right? 9 A. To the best of my recollection. 10 Qi And did you ever follow any of these people out of Ohio at 11 any time to see what state of health they achieved or didn't 12 have after 1970? 13 A. Which people? The people that didn't complain to me? 14 (X The silo people. Any people ofthe silo people that you 15 found out through Dr. Hill, either the Humphreys, the. 16 Schwarzwalders, the Spicers, the Jones, the Baldwins, the 17 Dillmans. 18 A. I had no correspondence to the best of my recollection. 19 MR. JUNGERHELD: Object to the form of the ques 20 tion. Counsel again has testified that Dr. Kelly found out 21 from Dr. Hill about these specific people and I don't believe 22 that is the testimony. ' .. ' 23 Q. Okay. Is this the end of it, that you heard -- maybe I should 24 establish that, Doctor. 25 Was this all as far as you went? You had that Tri~City Court Reporters 5X26 State St. Saginaw, Michigan 48603 ' 4330 HARTOLDMON0044341 1 communication with Mr. Egan after this? 2 THE COURT: You are referring to this exhibit? 3 0. We have March 30th and then Mr. Jungerheld asked you after 4 that you had some communication with Mr. Egan. , `5 Is that as far as you went in your contact with anything 6 to do with the Ohio problem? 7 A, No. I talked with Mr. Papageorge repeatedly about what was 8 going on in these areas, what he was doing. 9 Q. And did he inform you of any other claims, whether they be 10 -- for whatever reasons they were made against Monsanto? ' 11 Did he let you know about those? 12 A. Other than whom, which claims did he -- 13 Q. Other than Humphrey and Schwarzwalder that apparently you 14 were made aware of because you received copies of those 15 memorandums that are sitting in front of you. 16 A. He may have talked to me about some of them, but I have no . 17 recollection of the names of any of them or how many there 18 were. 19 0. Doctor, you said that you don't testify for anyone. You come 20 in to testify as to the trut;,,, 21 Is that correct? - 22 MR. JUNGERHELD: Your Honor, now this is going 23 beyond the scope of redirect examination. 24 THE COURT: I believe it is, Mr. Woodworth. 25 MR. WOODWORTH: That is all the questions I have Tri-City Court Reporters . 5226 Slate St. Saginaw, Michigan 48603 4331 HARTOLDMONOQ44342