Document 6RQv4kYY6jqQLxydjK76mbD76

1 1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT a ST. CLAIR COUNTY, ILLINOIS 3 4 FRANCES E. KENNER, ET A L ., 5 Plaintiffs, 6 vs. } Case No. B0-L-970 7 MONSANTO COMPANY, 0 Defendant. 9 10 11 REPORT-OF PROCEEDING5 IS February 20, 1906 13 14 Before the HONORABLE RICHARD P. BOLDENHERSH, CIRCUIT JUDGE 15 16 APPEARANCES: 17 MR. REX CARR and MR. JEROME SEIGFREID, Attorneys at Law IQ on Behalf of the Plaintiffs; and- 19 MR. KENNETH H. HEINEMAN and MR. JOSEPH NASSIF, 20 Attorneys at Law, on behalf of the Defendant, 21 Monsanto Company. 22 23 Kathleen Watson Brunsmann, RPR, CSR 24 Official Court Reporter a *y 1 BE IT REMEMBERED AND CERTIFIED, that heretofore an a ta-wit: Friday, February HB, 19BE the matter as hBreinbBFarB 3 set Forth cams on For hearing bsFpre thB Honorable Richard 4 P. GaldBnhersh, Circuit Judge, in and For thB Twentieth 5 Judicial Circuit, and the Following uias had of record, to6 wit: 7 B CThe Fallowing proceedings were had in chambers 9 out oF the presence of thB jury:) 10 11 MR. HEINEMAN: Okay. Judge, m b 're appearing e beForB you in chambers this morning. I don't know iF the 13 Court has had an opportunity yet to see during the timB that 14 we've bean oFF the motions which have been Fild by the 15 Defendant Monsanto Company. 16 THE COURT: I haven't seen a thing. I Just walked 17 in. IB MR. HEINEMAN: Okay. On February 25th there was a 19 Motion for Mistrial Filed in connection with the second HO anniversary of the trial, which has been Filed, as I say, on 21 February 25. And/or about the same day we Filed a Motion to H2 Uoir Dire the Jury with respect to certain articles that 23 have appeared in newspapers and magazines in the St. Louis 24 area recently -- 3 1 THE CDURT: Is that why you'rs back hers an those 2 mations? 3 MR. HEINEMAN: I Just wanted ta tell the Court 4 that I 'm sure, or I Felt sure that the Court had not yet had 5 a chance to see them. 6 THE COURT: I'v b been out with the Flu Far three 7 days. I just got in and I haven't looked at anything, e Frankly. 9 MR. HEINEMAN: All right. And I wanted to say 10 that we really don't have anything Further to say in terms 11 oF oral argument in support oF these motions. We believe IS everything is contained therein, but I 'vb been asked to 13 requsst the Court to rule on these as quickly as possible in 14 light oF the continuation oF the testimony. 15 THE COURT: Do you want to File a response? 16 MR. CARR: Yes, your Honor. I want to- File a 17 response. IF they don't want to argue, that's Fine with me, IB MR. HE INEMAN: Ua may need''argument whan we s b b 19 Mr. Carr's response, but at this paint I have no Further -- 20 THE COURT: Yes, I understand. AFter you File 21 your response, then w e 'll see what you want to d o , I will 22 read it -- I 'll catch up and read this, and I 'll read yours 23 as it comes in. 24 4 1 CShort recess.) S 3 CThe Follading proceed!ns mers had in chambers 4 ut of the presence of the jury:) 5 6 THE COURT: Okay. IdhilB we're waiting fcr this 7 juror, you've got this response and objections to the Notice B to Produce. Do you have anything you want to add to your 9 response and objections? 10 MR. HEINEMAN: Your Honor, clearly the documents 11 that uie know about at this point havB been produced, There 1 has been a production as reflected in paragraphs one and 13 two. This same reguest was mads -- 14 THE COURT: U)ell, I have a question about that. 15 What is constructively produced supposed to mean? 16 MR. HEINEMAN: Dell, that was the situation where 17 Rex said he got them from the Nitro -- IB M R . CARR : Let ms interrupt there. They produced 19 them, you recall, Judge, they produced this material in the E0 Nitro case and at that timB there was a restriction that SI they could not release then because of the federal court ES order, and you ordered them released in our case. S3 THE COURT: Right. E4 MR. CARR: And Dr. Carnow was then given 5 1 permission to give those documents to us as we requested e them. 3 THE COURT: Okay. 4 MR. CARR: And while they have not been produced 5 to us, what Counsel says is true, wa haven't yet been denied 6 although we get charged for copies left and right all the 7 time, we have net yet been denied access to those records. B So to that BxtBnt h e 's certainly correct. 9 THE COURT: Okay. I didn't quite understand what 10 constructively produced meant. Now I understand because I 11 remember the arguments on that. Okay. Bo ahead. IS MR. HEINEMAN: All right. We don't know at this 13 paint what elsB may have been generated or what else we 14 might have thBre, but in any event if there are any records 15 with respect to nan-plaintiffs, we have thB same privacy IB problem that w e 've had in the past, in which w e 're obligated 17 to assert on their bBhalf. Anybody who is not a plaintiff IB and who has not, therefore, waived the right to thB privacy 13 of those documents certainly has that right and we don't 20 have the right to turn them over to violate that privacy. HI THE COURT: This is the same argument you made 25 before on those other documents. 23 MR. HEINEMAN: I think it is. .24 THE COURT: Okay. So that would -- 1 that's the 6 \. 1 substance and the reasoning behind your objection in 2 paragraph three? 3 MR. HEINEMAN: Yes. And in addition to that, as I 4 sit here, I don't know what other records may have been 5 generated in connection with those people, but ua have given B the documents that were generated in connection with thB 7 Nitro situation. I think Mr. Carr has all those. You know, B whatever was produced in connection with paragraphs one and S two I think is all there is, but I 'm not sure. I really 10 don't know. 11 THE COURT: So basically what you're saying is you 12 think you've given them everything there is, and if there is 13 anymore you think you still have a privilege and privacy 14 problem? 15 M R . HEINEMAN: Right. And I can't imagine that IB anything else is going to be relevant. 17 THE COURT: Okay. Mr. Carr, what do you have to IB say? 19 MR. CARR: Our position, Judge, anything obviously 20 that has been produced and that we havB access to, w e 're not 21 asking for a reproduction oF those documents. But if there 22 is material that has been generated relative to these 3B, wb 23 think w s 'tb entitled to it because it is pertinent to thB 24 cross examination that's taking place right now and 7 1 pertinent to the direct examination that Counsel has made 2 with this witness. Uls want it. The privacy rule obviously 3 would not apply. 4 Monsanto -- neither Monsanto nor Suskind came into 5 possession of these records in any kind of privileged 6 situation. They were not treating physicians and they were 7 doing a study, and the appropriate permissions were given to 8 Monsanto at that time and the views and results of this 9 study and the papers they've published, those arguments I 10 don't think would hold any water. Uls don't know that 11 there's any additional material, apparently Counsel doesn't 15 either. If there is, we believe w B 're entitled to it. 13 THE COURT: Well, basically w e 're back to arguing 14 what was done before. I ruled at that time that there 15 wasn't any privilege or privacy problem, and I would adopt 16 the arguments that were madB on bath sides as to that 17 question and adopt my prior ruling, and the rational that IB was stated for it at that time. I think that would bB 19 relevant. 20 I think that as I've bean doing throughout this in 21 trying to establish as the operating rule, Illinois 22 discovery is broad discovery, its relevant material, or 23 anything leading to relevant material. I think that these 24 records in the posture of the cross examination as it has a 1 gone up to this point, in my opinion, mould obviously be 2 ralevant to the cross examination at hand right now, and 3 mould clearly Fall under proper discovery under Illinois 4 discovey rules. I 'm going to deny your objections. 5 Since me sBem to bein limbo right nom as far as 6 this juror, why don't you get on the phone and see if there 7 is anything else existent. Obviously, you don't have to 8 reproduce what utas produced before, and I understand mhat 9 you're saying on those now that I understand mhat you meant 10 by constructive production. So why don't you get on the 11 phone and find out if there's anything else, and either ia produce it over the weekend or produce an affidavit' that 13 there isn't anything else. Find out whether there is 14 anything else, because no one in this room seems to know. IS NR. NAS5IF: Your Honor, w B 're telling you that we IB don't have anything else here in St. Louis. If .there are 17 other things, they're outside of St. Louis, and it may take 18 a little while to find out what's out there and to get them 19 copied. I don't know if we can do that ovBr the weekend. 20 THE CDURT: Well, try, because we 're in the middle HI of cross examination, so they're relevant now. 22 NR. CARR: We SBrved this an counsel a week ago, 23 so they'VB had time -- 24 N R . HEINENAN: Well, therB's a problem with that. 9 1 I never saw this thing, and it didn't appear in our 2 Belleville office, trial office until the 55th. I didn't 3 see it until the 26th. That's why our response was filed 4 when it was. I never saw the thing until after the 25th. 5 THE COURT; Well, I saw it -- I was here on 6 Monday -- 7 MR. CARR: We served it personally an your 0 Belleville office. 9 MR. HEINEMAN: Where? Which Belleville afficB? 10 MR. CARR: I don't know. We gave it to the man 11 and said serve it on Coburn and Croft. ie THE CDURT: I had to have gotten it by Monday at 13 the latest because I rve been -- I 've had the flu sincB 14 Monday night, and I got my copy out of a stack of things 15 that were served on me by Carr's office. IB MR. HEINEMAN: Okay. 17 THE COURT; It had to have bBsn at least since 10 Monday. 19 MR. HEINEMAN; Well, there may be a problem -- you 20 know, uib have an office across the street from our trial 21 office here in Bellsville. In other words, when Mr. Carr 22 has come to look at records, it has been in our trial office 23 for this case there at 219 South Illinois. Wb have an 24 office across the street. The girl that is there all the 10 1 time X think mas out sick or something. Was it put over a there, do you think? 3 MR. CARR: I don't know. I gave it to a man that 4. delivers papers For us and said serve this on Coburn and 5 CroFt, they've got an oFFice down on Illinois Avenue. I 6 told him where to go. I don't knout which office he served 7 it upon. But he served it upon a Coburn Croft office. B MR. HEINEMAN: It might have ended up in Ralph 9 Stanger's mail or something. 10 THE CDURT: I don't knoui. But I know I had it at 11 least by Monday because I havBn't been hers since Monday. 12 But anyway, since we still don't know wherB that juror is, 13 why don't you get on the phone and see about this 14 information because it is relevant to crass examination, 15 kay. 16 17 CAdjourned.) IB IS 20 21 22 23 24 11 1 STATE OF ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT > 3 COUNTY OF ST. CLAIR 4 5 I, KATHLEEN WATSON BRUNSMANN, one of the Official E Court Reporters, do hereby certify that the foregoing 7 transcript is a true and correct copy of said transcript. B S DATED: March 4, 1386. 10 11 12 13 KATHLEEN WATSON BRUNSMANN, RPR, CSR 14 Official Court Reporter 15 IB 17 IS IB 20 21 22 23 24 12 1 STATE OF ILLINOIS D 2 TWENTIETH JUDICIAL CIRCUIT 3 3 COUNTY OF ST. CLAIR ) 4 5 I, RICHARD F. B0LDENHER5H, CIRCUIT JUDGE, da 6 hereby certify that the foregoing transcript is a truB and 7 correct copy of said transcript. B 9 DATED: March 4, 1906 10 11 ia RICHARD F. GOLDENHERSH, CIRCUIT JUDGE 13 14 15 16 17 10 19 20 21 22 23 24 1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 4 FRANCES E. KEMNER, et al. 5 PIaintiff, 6 v. 7 MONSANTO COMPANY, 8 Defendant. 9 ) ) ) > ) CAUSE NO. Q0-L-970 ) > ) ) 10 REPORT OF PROCEEDINGS 11 Before the HONORABLE RICHARD P. GOLDENHERSH 12 Testimony of Dr. Raymond Suskind 13 March 4, 1986 14 15 APPEARANCES: 16 MR. REX CARR, Attorney at Law, 17 MR. JEROME SE1GFREID, Attorney at Law, On behalf of the Plaintiffs, 18 MR. KENNETH HE INEMAN, Attorney at Law, 19 MR. JOSEPH NASSIF, Attorney at Law, On behalf of the Defendant. 20 21 22 23 24 PATRICIA A. GANDY, CSR, RPR 25 Official Court Reporter 1 all together that were dead at the time of the 1979 2 examination, and we have earlier discussed eleven you did 3 examine in 1979, correct, sir? That accounts for a total of 4 26 of thosepeople, does it not, sir? 5 A Which-- 6 Q Twenty-s ix of the originalthirty-six? Do you 7 understand what I am asking you? 8 A No, I do not, sir. 9 Q Exhibit 1734 accounts for a group of--maybe you 10 do n 1t have it. Doctor, 1734 is the list of the eleven 11 workers who had been examined in 1953 that you examined in 12 1979, isn't that correct, sir? 13 A It is . 14 Q And those eleven, when added to thethirteen 15 deaths which we--fif teen deaths, rather, that we described in 16 these two exhibits in 1748, would make a total of 26 persons 17 from the original 36, isn't that correct, sir? 18 A I w o u 1d assume that that *s so, sir. I haven't 19 figured out, but I assume that that's so. 20 Q Well, to help you, Doctor, McClanahan died of-- 21 hit by a train at a crossing, and Steele killed himself. And 22 we have thirteen here on Exhibit 1748, that's fifteen people, 23 isn't it, sir, accounted for that were dead that we can 24 account for in 1979, correct, sir? 25 A Y e s . 29 1 G And 1734 lists eleven people that you examined, 2 correct, sir? 3 A Yes. 4 Q Eleven and fifteen and twenty-six, is it not, 5 sir? 6 A I be 1ieve so. 7 Q. So twenty-s ix we can account for , twenty-s ix of 8 the thirty-six, can we not, sir, or have accounted for at 9 least, isn't that correct, sir? 10 A If you are saying that there are twenty-six 11 included in these two exhibits, yes, there are. 12 Q Plus the two that died, Mr. McClanahan and 13 Steele, who died of the accident and the suicide, isn't that 14 correct, sir? 15 A That *s true. 16 Q Now, that 1eaves ten who were not accounted for 17 by these exhibits and by your testimony, isn't that correct, 18 sir, of the original thirty-six? 19 A I would assume so, sir. 20 Q And of those ten, do you have any knowledge as to 21 their disposition? 22 A I do not, sir, not of f-hand. 23 Q Now, they may be all dead, they may be all alive, 24 but they were not re-examined by you, is that correct, sir, 25 or by your group in 1979? 30 1 A They were not. 2 Q So the only evidence we have as to the health 3 status of the thirty-six is that which is described in 1734 4 and 1748, isn't that correct, sir? 5 A N o , sir. 6 Q What other evidence do we have of their health 7 status as -8 A I don* t have any evidence, but there must be 9 evidence in medical records, sir. 10 Q Doctor, my question is, if you listen to my 11 question, my question is the only evidence that we have that 12 you are aware of that you know of, what's been shown in 13 Exhibit 1734 and 1748, plus the two death certificates of 14 McCI anahan and Steele, isnrt that correct, sir? 15 A That's not so, sir. 16 Q What other information do you have as to their 17 hea1th status? 18 A There is information. 19 Q I'm sure somewhere in this world there may be, 20 Doctor. But my question is-- 21 A --And it might be-- 22 Q What other information do you have, sir? 23 A I haven't sought out any information, sir. 24 Q Then is the answer to my question is that you 25 have no other information? 31 1 A I don't, but there is information, sir. 2 Q Doctor, I'm sure, if they're dead, there are 3 death certificates somewhere. If they are alive, they are at 4 their homes or they are in Florida or wherever. I'm sure 5 there is some information. But that isn't what I asked you, 6 is it, Dr. Suskind? I asked you whether or not--Doctor, 1 7 asked you whether or not you have any information about these 8 other ten workers, and you do not have any such information. 9 A I personally do not. 10 Q A 1 1 right. And, Doctor, do you know where this 11 information, if it exists, is on these other ten workers? 12 A I wou 1d assume. 13 Q Now, Doctor, my question is do you know where it 14 is? Do you know whether or not anybody has collected that 15 information, has amassed that information, has put it in a 16 file or in a report or in any other form, do you have any 17 knowledge about that? 18 A I don't know, s ir. 19 Q Then the answer is you have no knowledge as to 20 that point, is that correct, sir? 21 A That is true, sir. 22 Q All right. And, Doctor, of the twenty-six that 23 we do know of, we know that eleven--I'm sorry, ten of those 24 twenty-six are having the same problems o r w o r s e n e d in some 25 instances as we established yesterday that they had in 1953 32 1 upon that examination, isnft that correct, sir? 2 A Yes, according to your coding, sir. 3 Q And we know that--Doctor, do we have to go 4 through this again? According to the way the records have 5 been interpreted by you and by your colleagues over a period 6 of time, and that's shown on these exhibits. 7 A N o , s ir . 8 Q Dr. Suskind, do you not recal 1 that we went 9 through that very same question yesterday a half a dozen 10 times? 11 A 12 Q I do indeed remember the discussion. Fine, Doctor. Then we pass on to that. The 13 information that you have for 1979 is reflected in the 14 reports that we went through, is it not, sir? The reports on 15 these eleven individuals, the '79 reports are all in front of 16 you right there, that stack sitting in front of you, isn't 17 that correct, sir? Remember, we went through those 18 yesterday? 19 A We did. 20 Q You do remember that? 21 A Oh, I sure do. 22 Q A 11 right. Now, Doctor, you also recall that we 23 discussed your report about the workers in *53 that you said 24 complained of in your report to the National Institute for 25 Environmental Health Sciences In '78 that you reported that a 33 1 few cases had continued to comp lain of mild pains, 2 nervousness, and fatigue, do you recall that, sir? 3 A Yes, I do. 4 Q And do you also recall--and you did categor ize 5 those as mild pains, didn't you, sir, in your report? 6 A I would have to look at the report to remind 7 myself, sir. What exhibit is it? 8 Q For the benef it, you can look at the summary--i t 9 is the report, it is 1727, Plaintiffrs Exhibit 1727, but the 10 pages passed to the Jury is, I'm not sure, I think 1731. 11 A I have 1727 before me, sir. What page is it on? 12 Q It is on Page 4. You have this other sheet, 13 Doctor, in front of you, this one where they're-- I don't have 14 the number handy on that one. Mr. Seigfreid tells me that 15 the pages passed to the Jury with the excerpt from 16 Defendant's Exhibit 62 and Plaintiff's Exhibit 1727 and 1726 17 was never given a number. 18 THE COURTi I don't think it was. 19 (Plaintiff's Exhibit 1751 was 20 marked for identification.) 21 MR. CARR * Mr. Nassif, does this conform to your 22 records that this exhibit was never given a number? 23 MR. NASSIF: Yes, it does. 24 MR. CARR: Your Honor, I'd like to offer 25 Plaintiff's Exhibit 1751, which is the page we passed to the 34 1 Jury yesterday morning which contains the excerpt from 2 Monsanto Exhibit 62, Plaintiff's Exhibit 1727, and 3 Plaintiff's Exhibit 1728. 4 (Plaintiff's Exhibit 1751 was 5 offered into evidence.) 6 THE COURT: Mr. Heineman? 7 MR. HEINEMAN: I think it contains part of 8 documents that have a 1ready been admitted, Judge. 9 THE COURT: It does. 10 MR. HEINEMAN: We don't have any objection. 11 THE COURT: Fine. Admitted without objection. 12 (Plaintiff's Exhibit 1751 was 13 admitted into evidence.) 14 BY MR. CARR: 15 Q Now, Doctor, the point that I was getting to is 16 that your report in 1953, I'm sorry, your report in 1978 said 17 that in a very few cases these workers continue to complain 18 of mild pains, nervousness, and fatigue, is that, correct, 19 sir? 20 A That is correct. 21 Q And, of course, we have already been through the 22 fact that twenty-seven, what twenty-seven out of thirty-six 23 means, but we haven't really gone through the statement as to 24 whether or not there were mild pains, involved, have we, sir? 25 A We went through pains, I believe. 35