Document 70MB93boZGooXOaJrZy7dyXX8

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY . 3 FRANCES E. KEMNER, et. al. ) ) 4 Plaintiffs, ) ) 5 VS. ) NO.: 80-L-970' ) 6 MONSANTO COMPANY, ) ) 7 Defendant. ) 8 9 10 REPORT OF PROCEEDINGS 11 Before the HON. RICHARD P. GOLDENHERSH 12 JURY TRIAL 13 December 13, 1985 14, 15 APPEARANCES: 16 Mr. Rex Carr Mr. Jerome Seigfreid 17 On Behalf of the Plaintiffs; 18 Mr. Kenneth Heineman Mr. Joseph Nassif 19 On Behalf of the Defendant. 20 21 22 23 Debra M. Musielak, CSR, CM 24 Official Court Reporter 1 1 INDEX 2 PAGE WITNESSES CALLED ON BEHALF OF THE DEFENDANT: 3 1. WENDELL KILGORE 4 Recross Examination.................. 2 Redirect Examination ................ 17 5 2. FRANK DOST 6 Redirect Examination................ 21 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 BE IT REMEMBERED, that on the 13th day of December, 2 1985, the same being one of the regular judicial days of said 3 court, the above-styled cause came on regularly for hearing 4 before the HONORABLE RICHARD P. GOLDENHERSH, one of the 5 Judges at the St. Clair County Building, 10 Public Square, in 6 the City of Belleville, County of St. Clair, State of 7 Illinois. Whereupon the following proceedings were had: 8 COURT CONVENED: 9 THE COURT: Mr. Carr, I believe you had finished 10 your questioning, is that correct? 11 THE COURT: Yes. 12 13 WENDELL KILGORE 14 (being called as a witness on behalf of the Defendant, having 15 resumed the stand, having been previously sworn, continued to 16 testify as follows) 17 RECROSS EXAMINATION 18 BY MR. REX CARR 19 Q. Dr. Kilgore, at the time you were engaged as an 20 expert in this case, and thereafter and up to the time you 21 testified on direct examination, you were given by Monsanto 22 whatever facts you. felt relevant to determine whether or not 23 the health effects on the Sturgeon plaintiffs were caused by 24 or associated with that spillage, were you not, sir? 2 1 A. No. 2 Q. . Do you understand my question, Dr. Kilgore? 3 A. I think I do. 4 Q. Because you were -- you gave your opinion to 5 Monsanto before you ever testified in this courtroom that the 6 health effects suffered by the people at Sturgeon were not 7 caused by dioxin, you do know that, don't you, sir? 8 A. That's correct. 9 Q. And for you to give that opinion, you have to know 10 what the health effects are, don't you, sir? 11 A. No. 12 Q. You don't have to know what diseases they are 13 suffering from or what their injuries are or what their 14 problems may be, what they claim, what their symptoms were? 15 A. No. 16 Q. And you did not know that up to the time you 17 started testifying here? 18 A. I knew what was reported, yes. 19 Q. Well, that's what I'm asking you, Doctor, you knew 20 what was reported, did you not, sir? 21 A. Yes, I did. 22 Q. And you knew what was reported prior to the time 23 you ever testified in this case, did you not, sir? 24 A. I believe that's correct, yes. 3 1 Q. You were advised as what Dr. Carnow's group -- what 2 the laboratories found, and what the Northwestern doctors 3 found, and what the laboratories found, were you not, sir? 4 A. That's correct, yes. 5 Q. So you did not give your opinions in this case 6 without having that full body of knowledge that was in 7 existence, isn't that correct, sir? 8 A. Yes, I did. 9 Q. And, you knew at that time what the laboratories 10 reported, what the various laboratories reported on those 11 plaintiffs, did you not, sir? 12 A. Not at that time. 13 Q. Now, Doctor, either what you just said was correct, 14 that you had the full body of knowledge, and you answered 15 that you did have that full body of knowledge, including the 16 laboratory reports, including what the Northwestern doctor 17 said, or you did not. Now, did you mean what you said that 18 you did have the full body of knowledge? 19 A. If I said that, I did not mean that. 20 Q. You know you said that, Dr. Kilgore. You just said 21 it? 22 A. I did not mean that. 23 Q. You didn't mean it? 24 A. No. 4 1 Q. So you did give your opinion to Monsanto prior to 2 testifying in this case without having the full body of 3 knowledge as to what the laboratories and the various doctors 4 found with regard to those plaintiffs, is that correct, sir? 5 A, I think that's correct, yes. 6 Q. Doctor, what amount of knowledge were -you given by 7 Monsanto before you said that, yes, those health:effects were 8 not caused by the spill? 9 A. The level of the amount of TCDD present. 10 Q. And you weren't given any of their medical -- you 11 weren't advised what the Northwestern doctors found, what the 12 laboratories found? 13 A. Some time after that, yes. 14 Q. Well, when after that were you advised of that, 15 sir? 16 A. I don't recall. 17 Q. Before you testified? 18 A. Oh, yes. 19 Q. All right. Now, that's good enough. You were 20 given then before you testified in this case, the full body 21 of knowledge as to what the health effects of those 22 plaintiffs were, what the laboratories found and what 23 Northwestern doctors found, what Dr. Carnow found and what in 24 general and in particular what was the opinions and what was 5 1 discovered about those people, correct, sir? 2 A. That's correct. 3 Q. And that included the laboratory reports, did it 4 not, sir? 5 A. That's correct. 6 Q. And you knew before you gave your opinion in this 7 courtroom whatthe Midwest Organ Bank found as far as those 8 laboratory lymphocyte subsets, did you not, sir? 9 A. That's correct, yes. 10 Q. And, Doctor -- and you -- while you may not have 11 seen this particular exhibit, or did you see this particular 12 exhibit? Not this one but -- not the blow-up, but the small 13 exhibit from that? This is a blow-up of -- and by this 14 exhibit I mean Plaintiff's Exhibit 268 A and B? 15 A. I have seen that, yes. 16 Q. All right. So you knew what those values were 17 reported for those various Plaintiff's, did you not, sir? 18 A. That's correct. 19 Q. So when I asked you the questions on cross 20 examination that I asked you, you answered those questions 21 having full knowledge of what the laboratory reported, did 22 you not, sir? 23 A. That's correct. 24 Q. And, Doctor, then yesterday you said to Mr. 6 1 Heineman that your answer was dependent upon -- or your 2 answer wouldn't be correct because some of those were just 3 barely abnormal and some were just high and some were just 4 barely low, do you recall that, sir? 5 A, That's correct. 6 Q. But in point of fact, that isn't correct, that you 7 knew those things, and when you answered my questions on -- 8 my questions on December 3rd, Page 10 and 11, counsel, when I 9 asked you whether or not those findings, those lymphocyte 10 subset findings were significant, and your answer was that 11 you did consider them to be significant, you had in your mind 12 the full test results, did you not, sir? 13 A. That's correct. 14 Q. And it is those full test results, some of which 15 are just -- here's 16 where the normal is 15, here is a 15.1 16 were normal is 15, you had that in your mind when you 17 testified, did you not, sir? 18 A. That's correct. 19 Q. So, it's this full body of knowledge, knowing that 20 89 percent of those plaintiffs had one or more abnormalities, 21 it is that knowledge that you considered and those findings 22 that you considered to be significant, isn't that right, sir? 23 A. That's correct. 24 Q. All right. And if you said yesterday in response 7 1 to Hr. Heineman's questions that it made a difference as to 2 whether how high they were or how low they were, that would 3 have been a mistake, is that correct, sir? 4 A. No. 5 Q. Doctor, you just got through saying that you had 6 all those results in your mind, did you not, sir? 7 A. That's correct. 8 Q. And some of those results are just barely out of 9 the normal, aren't they, sir? 10 A. That's correct. 11 Q. So when you answered my questions, you had all 12 those results in mind, did you not, sir? 13 A. That's correct. 14 Q. And, with that in mind, you considered those very 15 significant and considered those things as you testified, you 16 consider those very significant and associated with the need 17 for further annual medical checkups, did you not, sir? 18 A. That's correct. 19 Q. By competent toxicologists and immunologists, 20 correct? 21 A. That's correct. 22 Q. Now, Doctor, you also testified yesterday on Mr. 23 Heineman's questioning, that in the plaintiffs -- do you have 24 Plaintiff's 1679 in front of you? 8 1 A. No, X do not, 2 Q. The testimony that I had referred to you before. 3 It would have not been admitted, Tammy, it would just be 4 this, yes, it's one of those. There it is. 5 MR. HEINEMAN: Excuse me, Your Honor, may counsel 6 approach the bench? 7 THE COURT: Sure. 8 (The following Side Bar conversation was had outside the 9 hearing of the jury.) 10 MR. HEINEMAN: Your Honor, I was prevented by Mr. 11 Carr's objection and this Court's ruling from questioning 12 this witness with respect to the portion of the December 3rd 13 testimony which was not included in 1679, and therefore I 14 think any question on 1679 would be outside the scope of the, 15 of redirect three, if we can put it that way, the third 16 redirect of this witness. 17 MR. CARR: Counsel, you may -- 18 THE COURT: Didn't you ask him about December 2nd, 19 though, the other part of 1679? 20 MR. CARR: He asked specifically about 1679. He 21 asked a question was there low dose described in 1679, 22 exactly what he asked. 23 THE COURT: I don't think that's correct. You 24 asked him about December 2nd in 1679, and then you wanted to 9 1 ask him about a part of December 3rd that was not in 1679. 2 MR. HEINEMAN: I didn't ask him anything about what 3 was in -- 4 MR. CARR: Yes, you did. You most certainly did. 5 MR. HEINEMAN: What did I ask him? 6 MR.-1CARR: You asked him did you get from 7 Plaintiff's Exhibit 1679 those people were exposed to a low 8 dose or were not exposed to a low dose. 9 MR. HEINEMAN: I did not. 10 MR. CARR: I have got in my notes exactly what you 11 said. Why don't I write it down? 12 THE COURT: Objection is overruled. 13 (The following proceedings were had in open court.) 14 Q. (by Mr. Carr) Dr. Kilgore, you recall yesterday 15 afternoon that Mr. Heineman asked you with reference to 1679 16 about whether or not there was any' evidence in there that 17 those people were not exposed to a low dose? 18 A. No -- what you mean those people? 19 Q. The.plaintiffs, the Sturgeon people? 20 A. Yes, I remember something like that. 21 Q. All right. Now, Doctor, you said in response to 22 Mr. Heineman*s questions, question at that time, that 1679 23 didn't tell you anything about the exposure of the dose, 24 could you find for me in 1679 where you -- where it says that 10 1 those people were not exposed to a low dose as you said 2 yesterday? 3 MR. HEINEMAN: Your Honor, may counsel approach the 4 bench? 5 THE COURT: Sure. 6 (The following Side Bar conversation was had outside the 7 hearing of the jury.) 8 MR. HEINEMAN: Your Honor, I never said any such 9 thing to this witness, when I asked him about low-dose 10 exposure, I asked him did Mr. Carr ask you about low-dose 11 exposure, and Mr. Carr asked you whether or not what your 12 opinion would be if there were a low-dose exposure. 13 MR. CARR: No, that was earlier. I'm talking about 14 your last few questions yesterday right before we recessed, 15 you asked him was -- .did he get any dosage exposure, was he 16 -- it would be 1679, there was no low-dose exposure for 17 those. 18 MR. HEINEMAN: I ask the Court do the Court's notes 19 show -- 20 THE COURT: Wait a second, I'm reading them now. 21 MR. CARR: It would have been somewhere around 22 3:30, quarter to four, somewhere around that. 23 THE COURT: Yeah, it was brought up a couple 24 times. 11 1 MR. HEINEMAN: 3:30 or quarter to four? You passed 2 lim to me at 4:20. 3 MR. CARR: All right, then 4:20, it was in your 4 :e-redirect. 5 THE COURT: Yeah, it would have been around 4:20. 6 rou started after your redirect with 1679. The objection was 7 >verruled. You may proceed. 8 [The following proceedings were had in open court.) 9 Q. Dr. Kilgore, could you show me where in 1679 there 10 Ls a statement that those people were not exposed to low-dose 11 lioxin, and by those people I mean the Sturgeon people. Let 12 ne help you, Doctor, the only mention of exposure in 13 ?laintiff's 1679 is on Page 139 and 140. 14 A. Okay. 15 Q. Doctor, is there anything there that you could 16 :onclude -- from which you conclude, or anyplace else in 17 L679, that these people were not exposed to low dose? 18 A. The statement there asked me to assume that they 19 *ere exposed. 20 Q. Yes, to TCDD, correct, sir? 21 A. That's correct. 22 Q. Is there anything in that where you can come to the 23 :onclusion that you were not exposed to low dose as you 24 testified yesterday afternoon? 12 1 A. No. 2 Q. And, Doctor, because what I asked you simply to do 3 was that they were exposed to TCDD and the chemicals in that 4 tank .car, correct? 5 A. I believe at any levels. 6 Q. To TCDD and other chemicals. You asked me what 7 they were exposed to and X told you TCDD and other chemicals 8 in that tank car, did I not? 9 A. I believe that's correct. 10 Q. Now, Doctor, you also testified yesterday that Mr. 11 Heineman never suggested to you or never influenced the 12 answers that you've given in this courtroom, do you recall 13 that? 14 A, That's correct. 15 Q. And, Dr. Kilgore, you have agreed on a number of 16 occasions that you have testified that your testimony has 17 changed after breaks and after conferences with Mr. Heineman, 18 have you not, sir? 19 A. No, I have not. 20 Q. Doctor, do you recall just one instance where you, 21 before a break, you testified that the document pointed out 22 that the people at Times Beach in the low-risk group were 23 exposed people? You recall that? And after the break you 24 attempted to say that they were not exposed, do you recall 13 1 that, sir? 2 A. No, I do not. 3 Q. Well, turn to Page 141 of the exhibit that you had, 4 140 and 141, it starts Line 15 on Page 140. Actually it 5 would be better for you to start at Line 9, that would give 6 you a better idea. 7 A. On page 140? 8 Q. 140, that's correct. Now, Doctor, do you agree 9 that you testified on Page 140 that the Times Beach two 10 groups one was exposed at a high level and one had not been 11 exposed? 12 A. That's correct. 13 Q. And do you also agree that that was a change from 14 the testimony you gave us before the recess? 15 A. No. 16 Q. Doctor, turn to Page 141 at Line 14. I asked you 17 that very thing, "Doctor; before you talked about to Mr. 18 Heineman, you agreed that the people at Times Beach in a 19 low-risk group and high-risk group both had exposure to 20 dioxin, did you not, sir?" And your answer was, "Yes." You 21 see that, sir? 22 MR. HEINEMAN: That's not the complete answer. 23 Q. 1 "Yes, some of them were according to the 24 definition." Isn't that your answer? 14 1 A. That's correct. 2 Q. Doctor, you do now agree that you testified before 3 the break and before the conference with Mr. Heineman that 4 the people in both groups had had exposure to dioxin, do you 5 not, sir? 6 A. NO. 7 Q. Doctor, you do not say, yes, some of them were 8 according to the definition? 9 A. That's correct. 10 Q. And, did you not say on Page 140 that one -- 11 high-risk groups were exposed at a high level and the other 12 were not exposed, did you not say that, sir? 13 A. That's correct. 14 Q. And did you then finally come back to say at 142, 15 on Page 142, that the low-risk group had exposure to low 16 doses of dioxin? Very top of the page there, sir, Line 4? 17 A. That's correct. 18 Q. Now, do you see there, Dr. Kilgore, a change 19 between your testimony both before and after your conference 20 with Mr. Heineman? 21 A. Not really. 22 Q. Doctor, on Page 140, do you say that one group was 23 not exposed, the low-risk group was not exposed? 24 A. That's correct. 15 1 Q. Is that different than what you testified to before 2 the break, before the conference with Mr. Heineman? 3 A. Not really. 4 Q. Doctor, when you say one has not been exposed, is 5 that the same thing as saying that the low-risk group has had 6 exposure? 7 A. No. 8 Q. It's exactly opposite, isn't it, sir? 9 A. Yes. 10 Q. You testified before the break that the low-risk 11 group had exposure, did you not, sir? 12 A. Not really. . 13 Q. Doctor, not really? Don't you recall you agreed 14 and we have gone through it a half dozen times already that 15 the low-risk group were taken from the 800 that had the 16 exposure and you agreed that the low-risk people had 17 exposure, you recall that, sir? You testify to that before 18 the break? 19 A. Yes. 20 Q. Here, right after the break you say one has not 21 been exposed, don't you? 22 A. That's correct. 23 Q. Those are opposite answers, aren't they? 24 A. Yes. 16 1 Q. Now, you also agreed at that time that you devised 2 that answer at your conference with Mr. Heinemanf did you 3 not, sir, and in your conference with Mr. Heineman, did you 4 not, sir? 5 A. Yes. 6 Q. So in fact you did change your answer after a 7 conference and you devised the answer in that conference with 8 Mr. Heineman, did you not, sir? 9 A. No. 10 Q. Doctor, would you just please answer me, sir, did I' 11 not ask you at that time,- question: "Did you not devise that 12 answer after your conference with Mr. Heineman, in your 13 conference with Mr. Heineman," and wasn't your answer, "yes?" 14 A. Yes, it was. 15 MR. CARR: No more questions, Dr. Kilgore. 16 THE COURT: Do you have any redirect? 17 MR. HEINEMAN: One moment, please, Your Honor. 18 19 REDIRECT EXAMINATION 20 BY MR. KENNETH HEINEMAN 21 Q. Dr. Kilgore, on this subject of what your answers 22 were in terms of the definition of the low-risk groups? 23 A. Uh-huh. 24 Q. Do you recall whether or not prior to the exchange 17 1 Mr. Carr is referring to, prior to any conference with 2 me, you referred Mr. Carr to the definition in the paper? 3 A. That's correct. 4 Q. As a matter of fact, on the testimony of December 5 2nd? 6 MR. CARR: Your Honor, leading and suggestive, 7 object to it. 8 THE COURT: Rephrase it, please. 9 Q, (by Mr. Heineman) Let me direct your attention -- 10 MR. CARR: Your Honor, that's also leading and 11 suggestive 12 THE COURT: Objection is sustained. 13 Q. (by Mr. Heineman) Page 4 -- 14 MR. CARR: Your Honor, that's leading and 15 suggestive to put the answer he wants in front of the 16 witness. 17 THE COURT: Gentlemen, could you approach the 18 bench, please? 19 (The following Side Bar conversation was had outside the 20 hearing of the jury.) 21 THE COURT: We went through this yesterday. I 22 sustained the objections. What you are doing now or 23 attempting to do is leading and suggestive. I'm directly 24 ordering you not to do it. You are an experienced trial 18 1 lawyer. You know how to ask non-leading questions and I 2 suggest that you do so. I am ordering you not to do what you 3 were trying to do there. We went through all this yesterday 4 afternoon. I don't want to have to go through it again. 5 MR. HEINEMAN: All right. 6 (The following proceedings were had in open court.) 7 MR. HEINEMAN: Do you have Defendant's Exhibit 55, 8 please? 9 MR. CARR: May I approach the bench, Your Honor? 10 THE COURT: Yes, you may. 11 (The following Side Bar conversation was had outside the 12 hearing of the jury.) 13 MR. CARR: Mr. Heineman is obviously now going to 14 try to go through and have this witness define again what he 15 means by a low-risk group of exposure group, or that do not 16 have exposure. That's been gone through several times. I've 17 cross examined at length. He's redirected at length. The 18 only relevance it has at this time is whether or not he 19 devised that answer and in the conference with Mr. Heineman. 20 Whether there was in fact exposure in the low-risk group or 21 not exposure in the low-risk group is not relevant. The only 22 relevant thing in this examination is whether or not he gave 23 one answer before the conference and gave a different answer 24 after the conference, whether or not he devised that answer 19 1 in the conference, I object to going through and redefining 2 what is low dose, is a low-risk group. 3 HR. HEINEMAN: Since you didn't wait for a question 4 you have no idea that that's what I intend to do. 5 HR. CARR: Yes, I do. 6 MR. HEINEMAN: I'm glad to have the Appellate Court 7 realize your clairvoyance, Mr. Carr. What exactly I had in 8 mind was to ask him to read that definition to himself and 9 ask whether or not he ever gave you that definition in his 10 testimony before any break or before any conference with me. 11 MR. CARR: It would be leading and suggestive. 12 THE COURT: Objection is sustained, it would be 13 leading. Number two, it is outside the scope. 14 MR. HEINEMAN: It's outside the scope of his 15 examination? 16 THE COURT: Yes. Of this last recross, it 17 definitely is. Objection is sustained. 18 (The following proceedings were had in open court.) 19 MR. HEINEMAN: I have no questions, Judge. 20 THE COURT: Okay, Doctor, you may step down. Thank 21 you. Gentlemen, could I see you at the bench for just a 22 second? 23 (The following Side Bar conversation was had outside the 24 hearing of the jury.) 20 1 THE COURT: Is Dost next? 2 MR. HEINEMAN: Yes. 3 THE COURT: Okay, is he here? 4 MR. HEINEMAN: Yes. 5 THE COURT: Why don't you bring him in, we will 6 start. 7 MR. HEINEMAN: All right. 8 9 (The following proceedings were had in open court.) 10 MR. HEINEMAN: Your Honor, at this time we would 11 recall Frank Dost to the stand. 12 THE COURT: Okay. 13 14 FRANK DOST 15 (being called as a witness on behalf of the Defendant, having 16 resumed the stand, having been previously sworn, continued to 17 testify as follows) 18 REDIRECT EXAMINATION 19 BY MR. KENNETH HEINEMAN 20 Q. Dr. Dost, in connection with Mr. Carr's cross 21 examination of you, sir, do you recall Mr. Carr cross 22 examining you on the subject of there being four out of 23 eighty in the Pazderova or Spolana incident that did not have 24 chloracne? 21 1 A I remember thatf yes 2 Q. And one out of the three in the Oliver incident 3 that did not have chloracne? 4 A. Yes. 5 Q. All right, sir. Now, do you recall his asking you 6 on a subject of whether you can have exposure to dioxin, 7 based on the data that he had just given you, a serious 8 problem from that exposure without having chloracne, you 9 recall that, sir? 10 A. Yes. 11 Q. Now, what facts must you assume, sir, as true in 12 order to reach that conclusion from those two studies? 13 A. Well, it's necessary -- there was a mixed exposure 14 and I'm not -- I'd like to review the question again, if I 15 might -- 16 Q. You mean the specific question? 17 A. Yes, I'm not sure that I remember the details of 18 the question precisely. 19 Q. May I read it to you? 20 A. I would appreciate it. 21 Q. The question, sir, was, "So both of those studies 22 show based upon the facts if they are facts that are true in 23 those studies -- 24 MR. CARR: I object to that, that's not what the 22 1 fitness he wants the question repeated. 2 A. Excuse me -- 3 MR. HEINEMAN: I think he wants what was read at 4 the time. 5 THE COURT: Would the two of you approach the bench 6 with the transcript, I'd like to see this. I haven't heard 7 it. 8 (The following Side Bar conversation was had outside the 9 hearing of the jury.) 10 MR. CARR: 1 really think what he wants is Mr. 11 Heineman to repeat his question, doesn't understand what he's 12 been asking in that question. 13 MR. HEINEMAN: That's not what I understand. 14 THE COURT: I think he wanted the question that you 15 were asked that you refer it to him because he didn't 16 remember it. I think that's what he asked. 17 MR. CARR: Well, it could be, but it could well be, 18 but I think before he reads it, he should make sure. 19 THE COURT: Since we are up, here let's make sure 20 we are talking about the same question. 21 MR. HEINEMAN: This one right here. 22 THE COURT: This one starting on 16? 23 MR. HEINEMAN: Actually the series starts back 24 here. 23 1 THE COURT: Yeah, but he wanted the particular 2 question repeated. 3 HR. HEINEMAN: That's what I thought he said. 4 MR. CARR: You think he wants that question read? 5 MR. HEINEMAN: That's what I thought. 6 .THE COURT: That's the way I interpret it also. So 7 you'll read the question that starts on 16? 8 MR. CARR: Why don't, for my sake, you ask him if 9 that's what he meant, please? 10 MR. HEINEMAN: All right. 11 (The following proceedings were had in open court.) 12 Q. (By Mr. Heineman) Dr. Dost, I want to be sure that 13 we know what it is you want read, you want repeated to you. 14 Is it the question that Mr. Carr had asked you? 15 A. Yes, I would appreciate that and then if you could 16 ask your question in that context. I 'm sorry. 17 Q. All right. The question was, "So both of those 18 studies show based upon the facts, if they are facts that are 19 true in those studies, that you can have exposure to dioxin, 20 a serious problem from that exposure, without having 21 chloracne, isn't that correct, sir?" 22 MR. CARR: And his answer was? 23 Q. Your answer was, "That is correct." You recall 24 that? 24 1 A. Yes. 2 Q. All right. Now, what is it that you must assume to 3 be true, sir, in order to reach that conclusion? 4 A. That there were, under those conditions, a variety 5 of chemicals involved. 6 Q. And in-the Spolana incident, sir, what was it that 7 the people were exposed to in that incident? 8 A, They were exposed to pentachlorophenol. 9 MR. CARR: Your Honor, this is repetitious. 10 Counsel went into that on the 13th of November, what they 11 were exposed to. 12 THE COURT: Objection is sustained. 13 Q. Is it your -- let me ask you this, Doctor, what is 14 your opinion with respect to whether or not finding four out 15 of eighty who did not have chloracne, and 76 out of 80 who 16 did have chloracne means in terms of whether or not there is 17 an exposure that is significant to cause effects without 18 chloracne? 19 A. I don't think that four out of eighty is a very 20 significant number. I think that the -- that it is fair to 21 say that virtually all of the individuals had chloracne, that 22 whatever was the chloracnegen was causing chloracne in 23 virtually every case. 24 Q. Now, let me ask you this, sir, in an incident of 25 1 exposure, where you are looking for a significant exposure to 2 TCDD, is it necessary that every person get chloracne for 3 there to be a significant exposure to TCDD? 4 A. I don't think. I think it's imaginable that there 5 would be in a large number of people like that there would 6 surely be, may very well be a few individuals who do not. 7 Q. What would be the factors that would -- that would 8 dictate in an instance whether or not someone would have 9 chloracne and someone would not? 10 A. I would say the extent of the exposure, the 11 intensity of the exposure, the duration of the exposure, the 12 dose. The dose. 13 Q. Is it possible, sir, for the dose to vary in a 14 group even though that whole group may be in a single 15 industrial population? 16 A. Oh, I think so, certainly, yes. 17 Q. And why is that? 18 A. Because they have different responsibilities, 19 different assignments. They spend different amounts of 20 time. They may be in different parts of the plant. 21 Certainly no exposure is going to be uniform throughout an 22 operation of that sort, the intensity and the duration both 23 could be expected to vary substantially from individual to 24 individual and from place to place within the plant. 26 1 Q, Would the behavior of the individual himself have 2 anything to do with the extent of the dose he might receive? 3 A. In terms of his particular job or in terms of his 4 personal habits or -- 5 Q. Either way? 6 A, Well, obviously an individual with a job that 7 requires handling a substance that has the capacity to cause 8 chloracne, such an individual would have at least a greater 9 potential for exposure. An individual who paid close 10 attention to working hygiene or personal hygiene would have a 11 much less, lesser potential for acquiring enough of a dose to 12 cause the problem that an individual who is very careless and 13 sloppy in their work habits or their personal habits. 14 Q. What do you mean personal habits? 15 A. Well, a person who changes clothes frequently, 16 bathes frequently, who understands that in a situation as had 17 been described in Spolana that it's possible to carry 18 material out of the plant into the home, for example, differ 19 from a person who does not -- or who does not pay attention, 20 a person who I say bathes frequently. Anything that would 21 either remove or diminish the presence of the material would 22 certainly decrease the potential for exposure and absorption. 23 Q. If you were looking at a population as a whole, 24 sir, and you were looking for whether or not there had been 27 1 exposure in that population as a whole, sir, would the amount 2 or the number of people or the presence of chloracne be 3 significant to you? 4 A. Yes> I think so. 5 Q. And, would the fact that 76 out of 80 had chloracne 6 be significant? 7 A. Most assuredly. 8 Q. Now, in connection with the Oliver study, sir, this 9 third Oliver patient, Patient C, with respect to that study, 10 what does that study demonstrate as to his exposure and as to 11 whether he in fact had chloracne? 12 A. It's interesting that it appeared to take a long 13 time for an effect of any kind to show up. He did show some 14 skin changes that seem to be identified as precursor to 15 chloracne. The skin became very oily. The sebaceous glands, 16 that is the glands that secrete the material to lubricate the 17 skin, .those I think are the characteristics of that 18 individual. 19 Q. Is there any indication -- well, is it.clear, sir, 20 that he did not have chloracne, that Patient C -- 21 A. I don't know, the author stated that he did not in 22 comparison, at least, with the other two patients that he was 23 examining. 24 Q. To what extent in the Oliver study did that third 28 1 persons exposure or would you compare his exposure to that 2 of the other two? 3 A. I had the impression that it was a lesser exposure, 4 that it was substantially less. 5 Q. And what was that impression based on, sir? 6 A. On the period of time, the nature of his -- of the 7 -- he was handling material in.an entirely different way. I 8 think that actually a question could be raised whether he was 9 significantly exposed. I just don't know. He was handling 10 material in a closed system. He was not, as I recall, 11 synthesizing material, working with it in the laboratory in 12 the same way that the other two individuals were working. 13 Q. Would you hand the witness Plaintiff's Exhibit -- I 14 think it's 1645. You have it now, sir? 15 A. Yes, I do. 16 Q. Does that help refresh your recollection with 17 respect to what -- the way in which Patient C was described? 18 A. Yes, he was not engaged in the experiments to 19 prepare dioxin, had been working in the following few months 20 after that activity with a diluted dioxin standard prepared 21 by Patient B. All his work had been done with the utmost 22 caution and special care to avoid personal contamination. He 23 first reported with symptoms in June 1973 and those symptoms 24 had been present for the preceding twelve months, so it was 29 1 at least apparently a year and a half or two years after his 2 exposure that -- or after he had handled the material that he 3 reported those symptoms, 4 Q. Now, with respect to the -- to the serious problems 5 from exposure that Mr, Carr asked you about, in connection 6 with this Oliver study, what were the indications -- well, 7 strike that. Let me ask it this way. Were there any 8 indications in any of those three patients of any abnormal 9 blood chemistry? 10 A, Their cholesterol levels were at the high side of 11 normal. They were in the normal range, but they were in the. 12 high side of normal, but, the statements -- well, perhaps I 13 should go to the description of the patients. In the case of 14 Patient A, a full blood biochemical analysis was undertaken 15 and this revealed a surprisingly high blood cholesterol for a 16 man of his age. No other significant- -- and as I said, that 17 level was within the normal range nonetheless. 18 No other significant biochemical changes were 19 detected. The liver function tests were normal, again 20 normal, they had been earlier, and no porphyrinuria was 21 undertaken. This was, by the way, an examination in 1973. 22 The examination in November of 1970, the physical 23 examination other than the chloracne was unremarkable. Liver 24 function tests were normal. There was no porphyrinuria. 30 1 The-- in Patient B in 1970, blood examination at this time 2 showed no evidence of liver damage, and they did not -- they 3 did not measure cholesterol at that time. Apparently they 4 did not in the first patient either. 5 And then in 1973 when they examined them again, 6 still some evidence of skin effects, but they were apparently 7 diminishing. Physical examination otherwise unremarkable. 8 Blood examination showed no evidence of liver damage and no 9 significant biochemical changes with the exception of a 10 raised serum cholesterol. Which was at about the same level 11 as the other individual, and was again, as I said, at the 12 high side of normal. Urine showed no porphyrinuria, and 13 their conclusion was that the primary change was a mild 14 hypercholesterolemia. The serum triglycerides were 114 15 milligrams per hundred mils, and I think that's within the 16 normal range. 17 On the third patient, Patient C, liver function 18 tests were normal. The same level of cholesterol in the 19 blood was measured, does say they showed a type 2A hyper 20 lipoproteinemia, but don't identify the amounts, and there 21 was no porphyrinuria. 22 Q. Now, did any of those three patients have elevated 23 porphyrins, sir? 24 A. No. 31 1 Q. And, with the exception of the residual chloracne 2 and the cholesterol, what happened to the other problems that 3 they did have? 4 A. Well, if I read this correctly, it appears that -- 5 the measurements in this paper, at least that discuss those 6 individuals, of course don't discuss-history after 1973, but 7 there really was not very much in the way of clinical 8 significance seen with those individuals. Chloracne appeared 9 to be resolving. 10 Q. How is it, sir, that the cholesterol level can be 11 described as hypercholesterolemia, and yet be at the top of 12 the normal range? 13 A. I think that -- I think that the physicians 14 examining those individuals were considering the age of those 15 individuals, and the normal range is fairly broad, what is 16 considered to be a normal cholesterol level. And I think 17 that they were -- they were essentially suggesting that it 18 was high for those individuals at their age. Now, I don't 19 know whether they took into account dietary factors or 20 anything like that. That's not described here. 21 Q. Was there any indication that whether or not those 22 people had had elevated cholesterols prior to the experiences 23 related here? 24 A. No. What is a little surprising to me is that the 32 1 cholesterol levels in those three individuals are almost 2 identicalf which is surprising in terms of just the general 3 kind of variation that one would expect in any population or 4 any group of people. 5 Q. You ascribe any significance to that? ^ 6 A. Well, it would be pretty hard to ascribe 7 significance without information. I don't -- one could make 8 all kind of guessses why they would be similar, but I think 9 that it would be -- there is no way of supporting that kind 10 of speculation. 11 Q. You think that the fact that the -- 12 MR. CARR: Object to the leading form of the 13 question. 14 THE COURT: Sustained. Would you please rephrase 15 it. 16 Q. Is there any significance in that -- in the 17 connection with the cholesterol in your view to their 18 exposure to 2,3,7,8-TCDD? 19 A. Well, there is a three-year lapse of time here, and 20 I have a little trouble ascribing that elevated cholesterol 21 to an exposure that took place three years prior for which 22 there aren't any other, no other evidence other than the 23 chloracne of an effect, particularly when the blood 24 biochemistry that they looked at was normal, particularly the 33 1 liver function tests were normal. And I would have to wonder 2 whether there wasn't some other factor that had had 3 intervened.during that long period of time that might have 4 been responsible for those cholesterol levels. They would 5 very very much like to have seen what they were earlier on. 6 Q. Well, wouldn't this suggest, sir -- 7 MR. CARR: Leading form, Your Honor, object. 8 THE COURT: Objection sustained. 9 Q. Do you think that elevated -- 10 MR. CARR: Again, I object to it. 11 THE COURT: Objection sustained. Please rephrase 12 it. 13 Q. Is an elevated cholesterol a long-range effect? 14 A. It can be if there is a metabolic problem that is 15 intrinsic. It can be if an individual has a certain dietary 16 pattern, in terms of a, if you will, a toxic manifestation, I 17 don't know of any that would be sustained for that long 18 period of time. 19 Q. Well, what is your opinion on that subject, sir, as 20 to whether or not the dioxin exposure could cause as a 21 long-term effect an elevated cholesterol? 22 A. I would question whether it can. 23 Q. Why? Why would you question that? 24 A. Well, primarily because all of the other factors 34 1 were observed in those individuals were normal at the 2 time of those terminal examinations. Also, the effects of 3 this sort that are seen in animals diminish with time. 4 Q. Now, next, sir -- 5 THE COURT: Before you get into this second 6 section, let's take a break at this time. 7 MR. HEINEMAN: I can't hear you. 8 THE COURT: You are getting into another topic? 9 MR. HEINEMAN: Yes, sir. 10 THE COURT: Let's take a break at this time. 11 MR. HEINEMAN: All right. 12 THE COURT: We will take a short recess at this 13 time. I would remind you, this would go for any other breaks 14 that we take during the day, you are not to discuss this 15 matter among yourselves, or with anyone outside the jury 16 panel or as of yet form any opinions or conclusions about the 17 matters on trial. Court is in recess. 18 (Following a recess, these proceedings were had in open 19 court.) 20 Q. (by Mr. Heineman) Dr. Dost, I'd like to -- would 21 you pass him Plaintiff's Exhibit 1443, please. You have 22 1443, sir? 23 A. Yes. 24 Q. And the second page of that exhibit actually bears 35 1 Page No. 6, but it's the second page? 2 A. Yes. 3 Q. Now, I'd like to ask you about a statement that Mr. 4 Carr directed your attention to in that exhibit, sir, which 5 is at the bottom of the page on the right-hand side, says the 6 severity of illness was not related to the duration of 7 exposure. You see that, sir? 8 A. Yes. 9 Q. Now, what do you believe is the validity of that 10 statement in light of the dose-response principle which you 11 testified to here before? 12 A. Well, those patients -- those individuals were 13 exposed to varying concentrations. I believe I spoke to that 14 just a little while ago, and the duration of exposure by 15 itself does not really govern the dose. The duration of 16 exposure and the intensity of exposure -- it's entirely 17 possible to have a very long low-level exposure that has no 18 consequences and also possible to have a very short and 19 intensive exposure that in fact does have an effect. 20 Q. You know I don't know that we identified for the 21 jury what study we were talking about here, Plaintiff's 22 Exhibit 1643 is what, sir? 23 A. This is the study that we have referred to a number 24 of time by Pazderova, The.Development and Prognosis of 36 1 ronic Intoxication by Tetrachlorodibenzo-dioxin in Hen, 2 is refers to the incident at the -- or the occupational 3 exposure at Spolana the Czechoslovakia work where they were 4 exposed in that plant that was -- this is the follow-up study 5 of those individuals that were exposed in that plant that was 6 characterized by such open transport between all of the 7 components of the plant where there were so many chemicals 8 apparently in the various mixtures to which individuals were 9 exposed to. 10 Q. Now, did we a moment ago talk about the Spolana 11 incident when we were talking about the four of the sixty or 12 four of the eighty who did not have chloracne? 13 A. I think we were -- yes, there were -- seems to me 14 that we were talking about -- I don't know whether those 15 numbers corresponded. There were 55 patients and 95 percent 16 of them had chloracne in this particular case. Are we on the 17 same wavelength? Are we talking about the same -- 18 Q. Yes, sir. 19 A. Okay. 20 Q. Now, with respect to the statement that the 21 severity of illness was not related to the duration of the 22 exposure, do you interpret that, sir -- 23 MR. CARR: Objection, Your Honor, leading in form. 24 THE COURT: Objection is sustained. 37 1 Q. How do you interpret that, sir, in connection with 2 the dose-response relationship? 3 A. Well, I think those individuals were exposed to a 4 variety of concentrations, a variety of times, and I don't 5 believe that -- it also mentions job status. Well, in a 6 plant like that, job status may not matter a great deal. In 7 any case, what this tells me is that I see nothing to make 8 this statement as it stands invalid. The problem is that we 9 have no idea what the intensities of exposures were and there 10 were a wide range of intensities of exposures that did not 11 necessarily -- the intensity of exposure does not involve 12 necessarily the duration of exposure, and as a consequence, 13 it would be expected that the duration, the time that the 14 people spent in the plant would not necessarily have a great 15 deal to do -- would not necessarily be well correlated with 16 the severity of disease. 17 Q. Now, you mention, sir, that this was the follow-up, 18 this particular Pazderova paper is the follow-up? 19 A. This paper, this study, I believe, was done 20 something like ten years after the individuals were exposed, 21 and that earlier exposure was described in the early series 22 of papers that were -- I think senior author was Dr. 23 Jirasek. 24 Q. All right. Now, with respect to the papers of 38 1 which Dr. Jirasek was an author, do those authors reject -- 2 MR. CARR: Objection, Your Honor, it suggests the 3 answer required. 4 THE COURT: Objection sustained. 5 Q. (by Mr. Heineman) What is the position of those 6 authors based upon your review of those papers with respect 7 to the dose-response principle? 8 A. Well, they describe in the early paper the wide 9 variation in the potential for exposure in the plant. They 10 describe the nature of the plant. They describe all of the 11 factors that could very well be involved, and they as nearly 12 as I could interpret were not -- they recognized that the 13 dose is related to the response, and it was just not readily 14 possible for them to precisely describe the dose in the 15 individuals that they were trying to examine. 16 Q. Do you have Defendant's Exhibit 1297 in front of 17 you there, sir? 18 A. No, I have not. 19 THE COURT: It should be in that stack. 20 MR. HEINEMAN: In this stack here? 21 THE COURT: Right. 22 MR. HEINEMAN: Okay. 23 Q. Let me hand you, sir, what's been marked as 24 Defendant's Exhibit No. 1297, and would you identify that for 39 1 the jury, please? 2 A. This is a 1973 paper by Dr, Jirasek, Kalensky and 3 Kubec published in what I presume to be the Czechoslovakia 4 Journal of Dermatology. it's a translation of the -- the 5 original and a translation. 6 Q. Now, what incident is that paper? 1 A. This relates to the original study of the same 8 individuals were studied ten years later in the paper 9 authored -- which the senior author was Pazderova. 10 Q. And that is Spolana? 11 A. Yes. 12 Q. Now, is that one of the papers that you refer to 13 earlier, sir? 14 A Yes. 15 Q. And, I'd like to direct your attention, if I may, 16 to Page 8 of the paper, you see that, sir? 17 A. Yes, I'm on Page 8. 18 Q. Did you mention previously something about the 19 plant conditions? 20 A. Yes, I did. 21 Q. And, what is the significance in your view of the 22 plant conditions and the author's position on the 23 dose-response relationship? 24 MR. CARR: Your Honor, this line of questioning was 40 1 gone into already the last time Dr. Dost was on the standf 2 November the 13th, starting at Page 100, and the jury was 3 passed that particular page at the time. 4 THE COURT: Objection is sustained. I believe it 5 is repetitious. 6 MR. HEINEMAN: Your Honor, may counsel aproach the 7 bench? 8 THE COURT: Sure. 9 (The following Side Bar conversation was had outside the 10 hearing of the jury.) 11 MR. HEINEMAN: First of all, I resent the fact that 12 Mr. Carr has made a speaking objection in front of the jury 13 when I have been doing my best not to do that. And, 14 secondly, Your Honor -- 15 MR. CARR: I accept the criticism, it's uncalled 16 for me to say that. 17 THE COURT: Okay. It was a speaking objection so 18 please restrain those and bring them up here. 19 MR. HEINEMAN: The second thing is Mr. Carr has 20 challenged this witness's position with respect to the 21 importance of the dose and the duration of the exposure to 22 the level of the conditions, or the extent of the conditions 23 which the people reported in this study have come in contact 24 -- or have exhibited. 41 1 THE COURT: Uh-huh. 2 MR. HEINEMAN: And I want to establish through this 3 witness and through the same article that in fact those 4 authors do not reject that dose-response relationship and the 5 articles themselves about the Spolana incident have clearly 6 demonstrated the validity of the dose-response relationship 7 regardless of that one statement and that one article. It is 8 true that this -- I don't remember if we discussed it with 9 this witness or with Dr. Kilgore. 10 THE COURT: I think we did. 11 MR. CARR: Page 78 and 9 were passed to the jury. 12 THE COURT: I think we discussed it with both. 13 MR. HEINEMAN: The position I would like to take 14 with this man is what the relationship is between the plant 15 conditions described by the authors and the author's position 16 on dose response, and that was not gone into before, and 17 that's what I think I have the right to do at this time. 18 MR. CARR: Your Honor, he said at that very time in 19 response to that very page, "In other words, the plant was a 20 mess and the exposure would suggest to me that everyone at 21 the plant was exposed to everything in the plant. Well, as I 22 have just stated, there is no is isolation of the various 23 components of the plant, one from another. There is 24 communications such that any substance that escapes is going 42 1 to find its way throughout the plant and it appears to me 2 that their mechanism for handling materials is such that 3 there there is going to be a great deal of exposure by skin 4 contact, vapor phase exposure, any manner of exposure that 5 may be possible is going to occur for everybody that is in 6 this whole, in the whole plants^ That's on Page 104 and 105. 7 THE COURT: Objection is sustained. 8 (The following proceedings were had in open court.) 9 Q. (by Mr. Heineman) Doctor, next I'd lake to direct 10 your attention, if I may, to Page 13 of this article, and the 11 second paragraph on the page, you see that, sir? 12 A. Yes. 13 Q. Are there any -- is there any portion of that part 14 of the article which relates to the position of the authors 15 with respect to the dose-response relationship? 16 A. Well, they speak of wide differences in the latency 17 period from initial contact to appearance of symptoms. They 18 speak of what appear to be substantial differences in the 19 degree of exposure, pointing out that severe damage occurred 20 after very short time and what was apparently a small 21 exposure, and then they go on, however, in the following 22 paragraph to point out that it's believed that the deciding 23 factor must be the degree of actual exposure which is 24 dependent on a series of other factors, such as work 43 1 iiscipline, personal discipline, adherence to preventative 2 measures, frequency of changing work clothes, and so forth, 3 rheir view appears to be very clear to me that the 4 close-response relationship must apply. They don't seem to be 5 prepared to accept the idea that very short exposures to very 6 small amounts of material produce effects that are -- in 7 other words, they are not prepared to -- they use the term 8 apparent. They have no evidence and they go on to point out 9 bhat the deciding factor has to be the degree of actual 10 exposure 11 Q. In your view, sir, is the Spolana incident an 12 exception to the dose-response -- 13 MR. CARR: Your Honor, that obviously suggests the 14 r. Leading. 15 THE COURT: Objection is sustained. 16 Q. Are there any exceptions in your view to the 17 dose-response relationship? 18 A. I have never encountered an exception. 19 Q. Now, in connection with the subject of the immune 20 system, do you recall Mr. Carr asking you some questions on 21 that subject and particularly with relation to the Thigpen 22 study? 23 A. Yes, I recall that. 24 Q. Do you recall his discussing with you the Thigpen 44 1 studies statement about the minute quantities involved and 2 your not having mentioned that? 3 A. Yes, I remember that. 4 Q. Ail right, sir. When you discussed the Thigpen 5 study with the jury, what information did you give the jury 6 with respect to the exposure level? 7 A. Example that I showed them was a study, was an 8 experiment in which mice were given varying doses of TCDD and 9 then they were challenged with an infection, a Salmonella 10 injection, Salmonelleae was the species, which is at doses 11 that are lethal to mice, at least to part of the population, 12 and the experiment demonstrated a no-effect level at a dose 13 of a half a microliter per kilogram. In other words, this 14 was a dose at which there was no increased deaths in those 15 mice due to the infection. No -- the mortality in the mice 16 that were treated with TCDD was the same as the mortality 17 that was -- that were not treated with TCDD at that dose. 18 Q. Nov;, could you describe for us -- well, let me -- 19 would you hand the witness Plaintiffs Exhibit 1648. 20 MR. HEINEMAN: Your Honor, I see it's noon now and 21 I don't know if -- before we get started -- 22 THE COURT: Yeah, it is close. 23 MR. HEINEMAN: It might be convenient for the 24 Court 45 1 THE COURT: That's a good idea. Okay, we will 2 break for lunch at this time. We will resume again at 1:15. 3 The admonishments that I gave you earlier will apply during 4 this break also. Court is in recess for noon. 5 (Following a recess for the lunch hour, court convened. The 6 following Side Bar conversation was had outside the hearing 7 of the jury.) ' 8 MR. CARR: That motion that you wanted to argue 9 this evening, we cannot argue. My secretary's sister is in 10 the hospital and my secretary didn't get in this morning to 11 prepare my objections. My objections won't be ready until 12 some time this morning. 13 THE COURT: Fine, Monday or Tuesday will be fine. 14 MR. HEINEMAN: May we argue it Monday? 15 MR. CARR: As far as I'm concerned. 16 THE COURT: I think so. I don't see any reason why 17 not. Some of the jurors have some concern with this 18 weather. They'd like to get off about four. 19 MR. HEINEMAN: I got to tell you, I was just 20 talking to Joe, you know, it seems like every other Friday or 21 something I get some kind of -- I feel lousy. I really feel 22 lousy this afternoon. 23 MR. CARR: I don't want -- 24 THE COURT: I gather then you have no objection to 46 1 knocking off at four, 2 MR. HEINEMAN: Not at four, maybe earlier. 3 Q. (by Mr. Heineman) Dr. Dost, just before lunch, we, 4 I think, passed you Plaintiff's Exhibit 1648. You have it 5 before you there, sir? 6 A. Yes, I do. 7 Q. And, I wonder if you would please describe to the 8 jury what those "extremely low levels" were that were 9 administered in that test? 10 A. The lowest dose, which was the no-effect dose was a 11 half a microliter per kilogram, and this was administered to 12 those mice once a week for four weeks from the fourth week of 13 life to the eighth week, and then after that, that's when 14 they challenged them with the infection. 15 Q. And what other doses were administered, sir? 16 A. They administered doses *-- they did actually two 17 series of experiments, and the first series they started with 18 a high of twenty microliters per kilogram per week, ten, 19 five, and zero. And then in the second series, they started 20 at five microliters per kilogram per day then one, and .5 per 21 kilogram per week, I beg your pardon. 22 Q. Per kilogram per week, did you say? 23 A. Yes. 24 Q. Now, sir, would you relate those doses to the no 47 1 observed effect level which you testified about in your 2 direct testimony? 3 A. I've been using a no effect -- general no-effect 4 dose of .001 microliters per kilogram, a thousandth of a 5 microliter per kilogram. The no-effect dose in this 6 experiment is .5, a half a microliter, in other words, it's 7 500-fold higher than the no-effect dose that I use as a 8 general no-effect dose. 9 Q. Now, with respect to the levels that produced 10 effects in the immune system, in this Thigpen study, how do 11 they relate to the no observed effect level you had testified 12 about in your direct testimony? 13 A. .Well, at a dose of one microliter per kilogram, 14 there was a very clear effect. Compared with the control and 15 the .5 microliter per kilogram dose, the both of those when 16 at a 25 percent mortality rate at one microliter per 17 kilogram, the mortality rate was 65 percent at five 18 microliters per kilogram it was 70 percent. 19 Q. And, can you relate those doses to the no observed 20 effect level in terms of the size, respective size? 21 A. The no-effect level that I use as a general no 22 effect? 23 Q. Yes, sir. 24 A. Well, one microliter per kilogram would be a 48 1 thousand times larger. Five microliters per kilogram would 2 be 5,000 times larger, and then the no-effect dose here is 3 500 times larger. 4 Q. Do you have an opinion, sir, as to whether or not 5 those are extremely low levels of TCDD? 6 A. I don't consider -- in terms of the general 7 toxicity of TCDD, X don't consider those to be extremely low 8 doses. 9 Q. Dr. Dost, do you recall the calculations you made 10 regarding the amount of contaminated soil at Sturgeon that 11 would have to be absorbed each time in order to get a dose 12 equivalent to the no observed effect level? 13 A. It's my recollection that we took an amount of ten 14 grams of soil, if I recall, and we made the assumption that 15 at the highest concentration of the chlorophenol total 16 phenols under the -- where it spilled under the tank car, 17 which I believe was on the order of 70 percent, and 18 calculated and assumed that all the TCDD stayed in it, and 19 calculated the concentration of TCDD that ought to be present 20 in the soil given -- assuming that TCDD stayed there with the 21 phenol that was in the soil, and assumed a one percent 22 absorption for TCDD, which is the figure used by the CDC in 23 its document -- 24 MR. CARR: Your Honor, may I object to this? This 49 1 is repetition. 2 THE COURT: Objection is sustained. X believe this 3 was testified to earlier, gentlemen. 4 Q. (by Hr. Heineman) Dr. Dost, at the time -- do you 5 recall when Mr. Carr was asking you about the levels of TCDD 6 you mentioned a Dr. Cortell, you remember that, sir? 7 A. Yes. 8 Q. Who is Dr. Cortell? 9 A. He is an official in the Epidemiology and Clinical 10 Toxicology Branch of the Food and Drug Administration. 11 Q. Why did you mention him, sir? 12 A. I believe we were discussing no-effect levels, and 13 the reason I mentioned him is because he has made a public 14 statement of FDA1s position -- 15 MR. CARR: Your Honor, may I approach the bench, 16 please? 17 THE COURT: Yes. 18 (The following Side Bar conversation was had outside the 19 hearing of the jury.) 20 MR. CARR: Counsel knows this is improper. This is 21 hearsay. We have already been through this objection once 22 when the witness tried to put it out once before. He's 23 trying to make a public statement what some fellow from the 24 FDA say. I object to it. You cannot get hearsay into 50 1 evidence this way 2 MR. HElNEMAN: Your Honor, my understanding is what 3 the witness is doing is all he's done has said Cortell is the 4 one that established the FDA no-effect level. That's already 5 in evidence. 6 MR. CARR: He's getting ready to say what this FDA 7 fellow said in public statement. It's hearsay. 8 THE COURT: My impression that's what he was 9 getting ready to say also. The objection is sustained. You 10 can't do that. 11 MR. HEINEMAN: All right. I'll steer him clear of 12 anything that Cortell said. 13 THE COURT: I think you have to. 14 MR. CARR: Anything that's hearsay and not in 15 evidence in this case. 16 (The following proceedings were had in open court.) 17 Q. (by Mr. Heineman) Doctor, where did you derive the 18 no observed effect level that you used during your testimony? 19 A. Primarily from the research that had been conducted 20 by Dr. Kociba, and that is a daily dose, a daily intake of a 21 thousandth of a microliter per kilogram, and that corresponds 22 with it is as low or lower than a whole host of no other 23 effect level that have been observed in different kinds of 24 experiments. 51 1 Q. All right, sir. With respect to the dose level 2 found to be toxic in the immune system in the Thigpen study, 3 sir, can you tell the jury how much contaminated soil a 4 resident of Sturgeon would have to rub on their skin each day 5 in order to reach that dose level? 6 A. We calculate that by rubbing ten grams of soil 7 there would be, that the dosewould be 222 times less than 8 the no-effect dose that we have been using. That means if -- 9 and that's a ten gram -- that's a ten gram amount of soil, 10 and assuming the maximum possible contamination, that means 11 then to -- are we trying to reach the Thigpen no-effect 12 dose? 13 Q. Yes, sir. 14 A. The no-effect dose there was 500-fold higher than 15 the no-effect dose I'm accustomed to using. That would mean 16 that to reach the no-effect dose with that kind of soil would 17 require, let's see, 2.2 kilograms roughly, to reach the 18 no-effect dose in Thigpen would require another 500 times 19 that, so, it would be around 1100 kilograms of soil rubbed on 20 the skin that's -- 21 Q. How does that convert into -- 22 A. Well, 2.2 pounds per kilogram, so we are talking 23 here about maybe a ton and a quarter. 24 Q. Of soil? 52 1 A. I beg your pardon, we are talking about close to 2 two and a half tons of soil. Let me make sure that X am -- 3 excuse me, no about a ton and a quarter of soil. That's 4 right, something on that order. 5 Q. How frequently? -6 A. The Thigpen experiment administered the material by 7 stomach tube once a week, if we wanted to make a comparison. 8 Q. All right. In your opinion, sir, could this dose, 9 which you've just calculated be acquired by someone through 10 the inhalation of either vapors or dust? 11 A. I cannot imagine how, no, sir. 12 Q. In your opinion, Dr. Dost, is a vapor of 13 2,3,7,8-TCDD a significant means of exposure? 14 A. No, sir, I am sure that it is not. 15 Q. And on what do you base your opinion, sir? 16 A. I base my opinion on the environmental behavior of 17 the compound. Its extremely low vapor pressure, that is very 18 very limited ability of the material to exist in air. The 19 fact that it does not emerge from soil, doesn't move through 20 soil very very rapidly, it does -- it is subject to 21 degradation by sunlight as it moves through the very top 22 layers of the soil, and I, as nearly as I can see, other 23 people feel the same way. The CDC document, for example -- 24 MR. CARR: Your Honor, may I approach the bench, 53 1 please? 2 THE COURT: Yes, you may. 3 (The following Side Bar conversation was had outside the 4 hearing of the jury.) 5 MR. CARR: Obviously going into hearsay again. 6 He's going to say what some other document says. It's not in 7 evidence. Counsel knows it's not in evidence, and he must 8 know what the witness is about to say. 9 MR. HEINEMAN: Well, I agree that he shouldn't say 10 anything about what the CDC said, but, I'm still at a loss as 11 to whether or not that CDC document is in evidence. We are 12 talking about the Renate Kimbrough -- 13 MR. CARR: That's what we are talking about, it's 14 not in evidence. 15 THE COURT: What's the number? 16 MR. HEINEMAN: Well, there's two. 17 MR. CARR: Defendant's 93. 18 MR. HEINEMAN: Defendant's 93, which is I think a 19 draft of the document, probably -- 20 MR. CARR: Plaintiff's 1255. 21 THE COURT: Didn't you -- didn't we go through this 22 once before and our records indicate that they were not? 23 MR. CARR: They were not in evidence. 24 MR. HEINEMAN: We did with 1255. 54 1 MR. CARR: We did with 93. 2 MR. HEINEMAN: I didn't think we did with 93. 3 MR. CARR: It's not in evidence. 4 THE COURT: I think we went through this a few days 5 ago, check with the Clerk's notes. 6 MR. HEINEMAN: Does she have down -all the things 7 that were admitted in Chambers that day? You know, those 8 Defendant's exhibits? 9 THE COURT: Everything. 10 MR. HEINEMAN: She has got those as well? 11 THE COURT: I don't remember who the Clerk was but 12 I gave them my notes as to what went in, so they should have 13 everything, because I kept -- they weren't back in Chambers 14 with us, but I kept notes on it for all you whenever we have 15 admitted anything. 16 MR. HEINEMAN: Do you have Defendant's 93 17 admitted? 18 THE CLERK: No. 19 MR. HEINEMAN: You don't. Okay, good enough. 20 THE COURT: Okay. 21 (The following proceedings were had in open court.) 22 Q. (by Mr. Heineman) Now, Dr. Dost, I'd like to 23 direct your attention to the cross examination which Mr. Carr 24 did of you on the -- in connection with the nervous system. 55 1 and is asking you about the complaints of the Nitro workers 2 made for 36 years, you recall that, sir? 3 A, Yes, I do. 4 Q. Do you know to whom those complaints were made? 5 A. I don't know. Certainly, I assume they were made 6 to Dr. Carnow. 7 Q. Yes, sir. Now, do you know, sir, whether Dr. Moses 8 and her team of physicians examined the Nitro workers in 1979 9 prior to the time the Nitro lawsuits were filed? 10 A. Yes, they did. 11 Q. And, what did Dr. Moses find with respect to those 12 complaints, sir? 13 A. She found really very little either evidence on 14 examination or evidence in interview of those kinds of 15 complaints; went through a long list, as I recall, of 16 subjective complaints in which she was pointing out that 17 there was no evidence. 18 MR. CARR: Your Honor, may I approach the bench? 19 THE COURT: Yes, you may. 20 (The following Side Bar conversation was had outside the 21 hearing of the jury.) 22 MR. CARR: Without the witness identifying the 23 source of his knowledge, I cannot object and say that it's 24 hearsay. Now, if he'll identify what he is referring to for 56 1 source of information, because it sounds as if he's 2 referring to something that he knows from his own 3 investigation of a long list of complaints that was gone 4 through. I assume, I believe, that he may in fact be 5 referring only to Defendant's Exhibit 908, but I don't know 6 that. 7 MR. HE1NEMAN: I'm sure that's right, but I'll be 8 glad to hand it to him. 9 THE COURT: Yeah, I think you should establish what 10 the basis of his knowledge is. 11 MR. HEINEMAN: Okay. 12 THE COURT: Oh, by the way, when did he first get 13 on the stand? If you could check over the break. 14 MR. HEINEMAN: First of November. 15 THE COURT: Early November? 16 MR. HEINEMAN: First of November. I think he was 17 the First. 18 THE COURT: If you would find out for me so I can 19 do some things. 20 MR. HEINEMAN: Okay. 21 THE COURT: Thank you. s. 22 (The following proceedings were had in open court.) 23 MR. HEINEMAN: Would you hand the witness 24 Defendant's Exhibit 908, please? 57 1 Q. (by Mr, Heineman) Do you have Defendant's Exhibit 2 908 before you now, sir? 3 A. Yes, I do. 4 Q. What document is that? 5 A. This is the paper that we commonly refer to as the 6 Moses study, Heal_th_Status of Workers With Past Exposur_&_to 7 2,3,7,8-Tetrachlorodibenzo-p^dioxin in the manufacture__of 8 2,4.5-Trichlorophenoxyzcetic_Ac_id: Comparison of_F_indin_g_s 9 With and Without Chloracne. 10 Q. Now, sir, when you were discussing the subjective 11 complaints and symptoms a moment ago, what was it that you 12 were relying on for your information? 13 A. Let me on Page 173, there are two paragraphs under 14 review of symptoms. "Statistically significant differences 15 between those with and without chloracne were found for 16 reported symptoms of muscle pain, insomnia, decreased libido, 17 sexual dysfunction, and eyelid cysts." 18 "No significant differences were found between 19 those with and without chloracne for the following symptoms: 20 Joint pain, abdominal pain, nausea, vomiting, diarrhea, 21 constipation, weakness, fatigue, nervousness, depression, 22 numbness, vertigo, lightheadedness, or personality change." 23 All right, sir. Now -- 24 MR. CARR: May I approach the bench, please? 58 1 THE COURT: Sure. 2 (The following Side Bar conversation was had outside the 3 hearing of the jury.) 4 MR. CARR: So it can be corrected now and not wait 5 for my cross examination, I'd like for the jury to be 6 instructed that what he said primarily was not correct. He 7 said that she found very little or few complaints of any 8 sort, and in point of fact, what it says is that no 9 differences -- there are found significant differences but 10 more importantly no significant differences were found 11 between those with and without chloracne. That is not to say 12 there were no complaints by those workers exposed to TCDD. 13 What it says they found no difference between the complaint 14 -- between those that were exposed to TCDD that had chloracne 15 and those that did not have chloracne. That is not 16 equivalent to saying that they had no complaints, and the 17 suggestion is at this point Dr. Carnow was inaccurate, 18 because this is not -- this is not data that says they did 19 not have complaints. All that it says one area there were 20 differences in the complaints between the two categories of 21 workers and the other area there were no differences in the 22 complaints. Doesn't say at all that they did not have 23 complaints. I'd like for you -- 24 THE COURT: Do you have anything on that? 59 X MR. HElNEMAN: I think 1*11 be glad to clear that 2 up. 3 THE COURT: I think you should. I think it's 4 pretty clearly noted there. 5 MR. HEINEMAN: I don't have any problem with that. - 6 THE COURT: Okay. Fine. :7 MR. CARR: The Court is instructing him to do it? 8 The Court is not going to instruct the jury? 9 THE COURT: He's going to do it. 10 MR. CARR: All right. 11 (The following proceedings were had in open court.) 12 Q. Now, Dr. Dost, did I understand a moment ago -- 13 MR. CARR: Your Honor, I object to this, he knows 14 exactly -- may I approach the bench? 15 THE COURT: Yes. 16 (The following Side Bar conversation was had outside the 17 hearing of the jury.) 18 MR. CARR: He knows exactly what was said. He 19 knows exactly what the inference and implication is, and now 20 he's asking did I understand this. I think he should make it 21 clear, point out -- 22 THE COURT: It just happened a couple minutes ago 23 really does not need to be repeated. I think you should just 24 make the point that it was made, agreed to up here, 60 1 basically, and you don't have to re-lay any foundation, it 2 happened within a couple minutes. 3 MR. HEINEMAN: Well, I'm not understanding the 4 signal here, Judge, because you say I have him repeat, I 5 shouldn't have him say that he said before that there were no 6 complaints. 7 MR. CARR: My objection is that he has said that 8 there were no complaints, that they found no complaints. I 9 think the only appropriate way, Dr. Dost, you were in error 10 when you said that, were you not, because this doesn't say 11 that, does it, sir, just as I would have to do in cross 12 examination. 13 MR. HEINEMAN: I don't think that Mr. Carr has the 14 right to put the words in my mouth. I think that I can ask 15 him -- I can clarify the matter in my own way. 16 THE COURT: The point, the ultimate point which you 17 have to reach and what I think should be a rather speedy 18 clarification, is that what he just referred to did not 19 support what he said. 20 MR. HEINEMAN: Do you have the notes on exactly 21 what he said? 22 THE COURT: On the list? 23 MR. HEINEMAN: No, before he went through the list, 24 that's what Mr. Carr is complaining about. 61 1 THE COURT: I don't have the list. Wait a second, t 2 Yeah, he said that the Hoses team had examined them in 1979, 3 which was before the lawsuit was filed, and that very very 4 little of -- very very few, if any, of the subjective 5 complaints that Carnow talked about were found. 6 MR. HEINEMAN: Found very little, 7 THE COURT: That's what he said. 8 MR. CARR: That's exactly what he said. 9 10 (The following proceedings were had in open court.) 11 Q. (by Mr. Heineman) Dr. Dost, a few moments ago when 12 I was asking you about the Moses study, you said that Dr. 13 Moses found very little in the way of those subjective 14 complaints, is that correct, sir? 15 A. I guess that was the words I used, yes. 16 Q. All right. When we went through Exhibit 908 a 17 moment ago, you compared, or you noted that there were 18 comparisons between those with chloracne and those without 19 chloracne, is that right? 20 A. That's correct. 21 Q. Now, does that indicate that in fact complaints 22 were made to the Moses physicians by those people? 23 A. I would imagine that it does indicate that. What 24 it indicates is that the people with chloracne and the people 62 1 without chloracne were apparently making complaints at the 2 same frequency. I guess I'm accustomed to thinking of it in 3 terms of differences between, if you will, in the 4 experimental sense treated in control populations and not 5 seeing a difference. What they are saying was they did not 6 see"a difference. They did not say that there were no 7 complaints. 8 Q. All right. 9 MR. CARR: Your Honor, may I approach the bench 10 again? 11 THE COURT: Yes. 12 (The following Side Bar conversation was had outside the 13 hearing of the jury.) 14 MR. CARR: That's not taking it back. He said they 15 found very little in the way of complaints. He now says they 16 are not saying they made no complaints. That's not taking it 17 back. That's not clarifying, because what he brought out and 18 the way he brought it out, and I suppose what I should have 19 done is wait for cross examination, but I did not want this 20 impression to last. What he brought it out of context was 21 that Dr. Carnow said that they had these complaints and then 22 right after that he said Dr. Moses examined them before the 23 lawsuit was filed, all in context with Dr. Carnow what Dr. 24 Moses found, found very little in the way of complaints. The 63 1 inference is that Dr. Carnow was lying or was wrong when the 2 plain fact of the matter is there is absolutely nothing in 3 Dr. Moses study to contradict anything that Dr. Carnow said, 4 and that's not been made clear. 5 MR. HEINEMAN: I think it has been made clear, Your 6 Honor, that what he said was incorrect, that what he said was 7 that very little found in the way of complaints that that was 8 wrong, that they did -- 9 MR. CARR: He said now they made no complaints. 10 THE COURT: That's fine as far as it goes. I think 11 it has to go that last step to bring out what Mr. Carr 12 properly is complaining about, and which I said you had to 13 bring out. So you have to add to what you did. 14 MR. HEINEMAN: To add what? 15 THE COURT: To show that it does not support his 16 statement that very little was found, which I don't think you 17 did bring up. They are fine as far as you went, but you have 18 to go farther. So, I am ordering you to do that. 19 MR. HEINEMAN: To make sure I understand, you are 20 ordering me to make it clear that the Moses study does not 21 support that there were no -- there was very little 22 complaints made, right. 23 MR. CARR: Bring out that -- 24 THE COURT: That very little was found, which was 64 1 what he said in contradiction to the Carnow findings. 2 MR. HEINEMAN: Very little was found to support the 3 statement, to support the statement. 4 MR. CARR: In the way of complaints. 5 MR. HElNEMAN: Okay. 6 THE COURT: As far as the complaints were 7 concerned. 8 MR. HEINEMAN: Okay 9 (The following proceedings were had in open court.) 10 Q. (by Mr. Heineman) So, Dr. Dost, then the Moses 11 study does not support a statement that very little was found 12 in the way of complaints, is that right, sir? 13 A. I guess that would be correct, because all that I 14 know from this is that they did not find a difference. I do 15 not know what the absolute frequency of complaint was. 16 Q. All right. Now, in 1979 was there another study 17 done on the Nitro population? 18 A. There was a study done by Dr. Suskind and 19 Hertzberger. 20 MR. HEINEMAN: Would you hand the witness 21 Plaintiff's Exhibit 1467? 22 Q. (by Mr. Heineman) Doctor, would you describe the 23 Exhibit 1467 that you have before you? 24 A. Called human health effects of 2,4,5-T and its 65 1 toxic contaminants I misspoke the second author. The first 2 authors is Dr. Suskind, the second is Hertzberg, not 3 Hertzberger. 4 Q. All right. And, with respect to -- direct your 5 attention to Page 2372, please, sir? 6 A. That's the first: page, yes. 7 Q. Can you tell us what had happened to the nervous 3 system findings from the original 1949 incident? 9 A. Dr. Suskind was involved in examination of 10 individuals who were exposed in the -- primarily the cleanup 11 of the accident that occurred in 1949, and this -- okay. 12 Just trying to decide where to start reading. Involved in 13 the cleanup of the building and repair of equipment 14 experienced acute symptoms characterized by skin eye, and 15 respiratory tract irritation, headache, dizziness and 16 nausea. Those symptoms subsided within one to two weeks and 17 were followed by an acneform eruption, severe muscle pain 18 affecting the extremities, thorax, and shoulders, fatigue, 19 nervousness and dyspnea, which is difficulty with breathing, 20 complaint of decreased libido and intolerance to cold. An 21 examination of the workers in 1949 revealed a severe and 22 generalized acneform eruption (chloracne), hepatic 23 enlargement, peripheral neuritis, delayed prothrombin time, 24 and increased total serum lipid levels. By 1953 those 66 1 symptoms and findings referable to the nervous system and 2 liver had subsided. The chloracne, although much improved, 3 persisted. 4 Q. Now, if I could direct your attention to Page 2374, 5 which is, I believe, the third page of the exhibit, what 6 conclusion did Dr. Suskind and Dr. Hertzberger with respect 7 to whether complaints of nervousness, depression and anxiety 3 were related to exposure? 9 A. They refer to Table 2. I'm in the third column ^ 10 close to the bottom of the page. They say as noted in Table 11 2 the complaint of nervousness, depression, anxiety, and the 12 complaint of impotence were not related to exposure. The 13 sample size was sufficient to detect a two-fold increase in 14 complaint of nervousness, depression and anxiety for exposed 15 or not exposed. 16 Q. Now, what does that last sentence mean, sir? 17 A. That relates to the size of the number of people 18 who were involved and it relates to the sensitivity of the 19 study protocol. In other words, the more individuals who 20 were involved, the more refinement could be assigned to the 21 numbers. There is, with any kind of experiment, a certain 22 level at which one can no longer discern either differences 23 or similarities because the numbers of subjects are not large 24 enough. Generally the more subjects, the more definition one 67 1 can assign to a finding. 2 Q. Now, do you recall, sir, on cross examination being 3 questioned by Mr. Carr about the Schecter article for the 4 proposition that TCDD causes an aberrant effect on the human 5 nervous system? 6 A. Yes, I recall that. 7 Q. I'd like to direct your attention to that exhibit, 8 if I may, I think it's 1643, if I'm not mistaken, no, it's 9 1436. 10 A. Excuse me, I was just going to correct you. 11 Q. You have it there before you? 12 A. No, sir, I do not, 1463 is the Pazderova article. 13 MR. HEINEMAN: Okay. Sorry, Tammy. I've got 14 another copy, my own copy, Dr. Dost. And, let me hand you 15 that. Do you recognize that document? 16 A. Yes, I do. 17 Q. Now, sir, in your opinion, sir, are the findings in 18 the -- well, first of all in the Schecter article, were there 19 certain findings made with respect to a number of patients 20 that were examined? 21 A. This particular -- okay, on Page 248, this Chapter 22 reports three case histories where patients developed 23 abnormal liver[ enzymes after exposure to PCB's, chlorinated 24 dioxins, naphthalenes, biphenylenes, and related compounds 68 1 and whose liver biopsies, when analyzed at an ultrastructural 2 level two years after exposure, show morphological lesions 3 similar to those found in previously published animal studies 4 after dosing animals with PCB's, or dioxins, and so forth. 5 Q. In your opinion, sir, are those, the findings, of 6 that article, useful for attributing causation of effects to 7 any one particular chemical? 8 A. Well, that soot contained 10 percent PCB's. In 9 other words, 100 is -- the number they use is a hundred 10 million parts per billion, which is 10 percent of the soot 11 was PCB's and PCB's are qualitatively caused similar effects, 12 it also contained biphenylenes, which are somewhat related 13 compounds, 20 thousand parts per billion of dibenzo-furans, 14 and 10,000 parts per billion of polychlorinated 15 dibenzo-para-dioxins, and at this point it does not specify 16 which dioxins or furans. It may be that there is another 17 analysis. That was the initial analysis that was made of the 18 soot, so there is an enormous amount of PCB's, vastly greater 19 relatively than the dioxins, the chlorodioxins that were in 20 that mixture, and the furans as a general case without 21 specifying which isomers were also there, in larger quanities 22 than the dioxins, and I don't think that it would be possible 23 to say anything more than that this mixture -- this mixture 24 was probably responsible for the effects, and beyond that I 69 1 don't think it would be appropriate to assign the impact to 2 any one of the components. 3 Q. Now, in your opinion, sir, -- 4 MR. CARR: Object, Your Honor, suggestive. 5 Starting to be suggesting, not asking, for his opinion. 6 THE COURT: Rephrase the question. 7 Q. (by Mr. Heineman) All right. Do you have an 8 opinion, sir, whether the same condition applies to the 9 Spolana incident and the papers relating to that? 10 A. I think so, yes. 11 Q. What is your opinion, sir? 12 A. Well, my opinion is that there is a mixture of the 13 have -- substantial number of chemicals, many of which were 14 in very very high concentrations, and X do not believe that 15 it's possible to assign specific impacts to any one of those 16 components exclusively. 17 - Q. Now, with respect to the Diamond-Shamrock incident, 18 sir, do you have an opinion whether that incident would 19 involve the same situation? 20 A. I believe it would. 21 Q. Now, do you recall, sir, Mr. Carr discussing with 22 you whether porphyria can cause an adverse effect on the 23 nervous system? 24 A. Yes. 70 1 Q. Now, do you recall, sir, from your review of Dr, i 2 Silbergeld's testimony in this case, whether she relied on 3 any particular articles in connection with this subject? 4 A. I remember some. 5 Q. Would you hand the witness Plaintiff's Exhibit 1640 6 and 1641. 7 Q. What is exhibit 1640, sir? 8 A. Let's see, there are actually two papers. I think 9 the one that we are concerned about here is in the archives 10 of Physical, Medical and Rehabilitation in 1971 called 11 peripheral neuropathy_and acute intermittent porphyrias and 12 the author is Willibald Nagler, who is a physician in New 13 York City or was. 14 Q. I'm sorry? 15 A. He was a physician in New York City. This paper is 16 in 1971, so -- 17 Q. And Exhibit 1641, sir, would you identify that for 18 us, please, sir? 19 A. It's a paper in the Journal of Neurology. 20 Neurosurgery and Psychiatry, and is titled, On the nature of 21 the peripheral nerve_lesions associated with acute 22 intermittent porphyria, authors J. B. Cavanagh, R. S. 23 Mellick. Apparently they are pathologists. 24 Q. Now, sir, in your opinion, do you have an opinion 71 1 as to whether or not those articles indicate that porphyria 2 is associated with neurological manifestations? 3 A. Well, those articles which speak of -- yes, I have 4 an opinion. 5 Q. What is that, sir? 6 A. Well, those articles which speak to acute 7 intermittent porphyria, which is a genetically based disease, 8 do describe peripheral neuropathy associated with that 9 particular condition. 10 Q. Now, do those articles -- do you have an opinion 11 whether those articles relate to the issue of whether 12 chemically induced porphyria is associated v/ith peripheral 13 neuropathy? 14 A. I have such an opinion, yes. 15 Q. What is that opinion, sir? 16 A, I do not believe that those relate to the issue of 17 porphyria associated with toxic substances. 18 Q. Now, do you have an opinion, sir, as to whether or 19 not chemically induced porphyrias are associated with 20 peripheral neuropathy? 21 A. I believe they are not. 22 Q. And why do you believe that, sir? 23 A. Well, that is general medical textbook 24 information. It's found in all the medical, internal 72 1 medicine tests that I have indicated, that prophyrias are not 2 associated with neurological manifestations, 3 Q. Now, do you recall Mr. Carr asking you questions 4 about the relative volatility of DDT and TCDD? 5 A. Yes, 6 Q. And you recall him asking whether we should be 7 concerned about TCDD volatilizing and spreading around the 8 world in a vapor form? 9 A, Yes, 10 Q. What is your response to that suggestion? 11 A, I believe I responded at that time that I thought 12 that itwas not of consequence, that is that TCDD would not 13 be expected to distribute through its volatility. 14 Q. Now, what are the reasons for your opinion, sir? 15 A. The vapor pressure of TCDD is very very low, only 16 very very minute amount of it can exist in the atmosphere at 17 any one time, assuming that it can get into the atmosphere. 18 The vapor pressure of TCDD or its volatility, if you will, is 19 responsible for its exceedingly slow movement within a soil 20 matrix. With respect to a comparison with DDT, DDT is not 21 photodegraded. DDT remains in tact in sunlight. 22 Furthermore, the amounts of DDT involved are enormous and the 23 useage of DDT at the time when it was being used widely as an 24 insecticide were on the order of a hundred million pounds a 73 1 year in the United States, and I'm told probably a total of 2 twice that worldwide. It is also much more volatile than 3 TCDD Its vapor pressure is substantially higher, 50 or a 4 hundredfold. So it has the capacity if it were to emerge 5 into the atmosphere, it has -- it is not in any danger of 6 being broken down by sunlight. It's one of the reasons why 7 it has been so persistent. 8 Q. Is or was DDT a contaminant in some other material? 9 A. DDT was a primary chlorinated organic chlorinated 10 hydrocarbon insecticide. It was manufactured in enormous 11 quanities as an insecticide, very widely used from World War 12 II until relatively recently. 13 Q. And, is TCDD an insecticide or a pesticide? 14 A. TCDD is a trace contaminant in at least 2,4,5-T and 15 related herbicides. 16 Q. Is it itself a pesticide? 17 A. No, sir, it is not. 18 Q. Now, you mentioned the amount of DDT that had been 19 applied worldwide, how would you compare that, sir, to the 20 amount of TCDD that might be available? 21 A. My figures on the amount of 2,4,5-T in order of 22 magnitude, I do not have the exact numbers, but the useage of 23 2,4,5-T at the time of its maximum use was probably less than 24 ten million pounds per year. If the contamination levels of 74 1 TCDD were considered to be one part per million, and that is 2 going to be really very high relatively to actual contaminant 3 levels with the exception of some of the product that was 4 manufactured'during Viet Nam era, but if that contamination 5 level was considered to be a part per million, one part per 6 million, rather than the less than .1 part per million that 7 was in effect essentially since 1971, that would mean a total 3 of ten pounds. 9 Q. Of what? 10 A. Of TCDD across the -- across North America as 11 compared with, what would it be, a hundred million pounds 12 approximately of DDT. In other words, there is a ten 13 million-fold difference, at least, and that does not take 14 into account such events as photodegradation and so on. 15 Q. Does DDT tend to bind to soil or anything like 16 that? 17 A. It does, apparently not as effectively as TCDD, but 18 it binds to some extent. 19 Q. All right, sir -- 20 THE COURT: Before you get into your next topic, is 21 this a good point for a short break? 22 THE COURT: Oh, sure, Judge. 23 THE COURT: We will take about a ten-minute recess 24 and continue with testimony. I would remind you that the 15 1 admonishments I gave you earlier will apply during this break 2 also. Court is in recess. 3 (Following a discussion in Chambers which was off the record, 4 Court adjourned for the day.) 5 COURT ADJOURNED: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 76 1 STATE OF ILLINOIS ) ) 2 TWENTIETH JUDICIAL CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR ) 4 5 I, DEBRA M. MUSIELAK, certify the foregoing to be a 6 true and accurate transcript of the testimony and proceedings 7 in the above-entitled cause. 8 Dated this / ^ day of December, 1985. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 j 77