Document 7O19Qe7RxLkG5avGQg5V49oQV

1- IN THE C I R C U I T 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. ) 3 9 Before the HON. RICHARD P. G O L D E N H E R S H , Judge 10 11 REPORT OF PROCEEDINGS 12 JURY TRIAL 13 March 20, 1986 14 15 APPEARANCES: 16 MR. REX CARR and MR. JEROME SEIGFREID 17 on behalf of the Plaintiffs? 18 MR. KENNETH R. HEINEMAN and MR. JOSEPH NASSIF on behalf of the Defendant. 19 20 KIMBERLY GANZ, CSR, RPR, CM Official Court Reporter 21 22 23 24 1 Q. And, Doctor, do you believe that the fact that it 2 occurs in a so-called unexposed person might suggest or i 3 indicate that he was exposed if you have found complaints of 4 loss of libido to exist in a third or better of the so-called 5 exposed population? 6 A, Well, I will answer your first question by saying 7 no, we don't think that the fact that they were found in the 8 unexposed had anything to do with exposure and I think we 9 stated in our paper, sir. 10 Q. All right, Doctor. Then if you found that loss of 11 libido was a relatively common problem occurring in, say, 30 12 percent of your exposed population regardless of their age, 13 you wouldn't take that to be, then, as a pretty strong 14 indication that d i oxin affects the libido? 15 A . N o , sir. 16 Q. You would not? 17 A. No, sir. Not in 1979, sir. ' 18 Q. And, Doctor, would you -- I take it then that you 19 wouldn't say that the libido, loss of libido occurring in the 20 so-called unexposed population would not support a view that 21 the unexposed population were, in fact, exposed? Is that 22 also correct? 23 A. Absolutely not. We would not agree to that. 24 Q. Doctor, back to the Nestmann problem. The Nestraann 136 1 1 exhibit that we were discussing, on this particular one 2 Haning, as well as -- Haning was found by Doctor Nestmann to I 3 have a moderately severe psychoneurosis, was he not, sir? Do 4 you have the Exhibit 1779 in front of you, Doctor? 5 A. Yes, I do. ! 6 Q. And, Doctor, I think you have testified earlier 7 that you were aware that these reports by Doctor Nestmann 8 were given to the compensation commission? 9 A. I believe so, yes. 10 Q. Doctor, handing you Plaintiffs* Exhibit 1780 and 11 ask if that represents to you that that is a portion of the i | 12 !compensation commission transcript dealing with Harold Young 13 iand, Your Honor, I would like to offer that exhibit into 14 evidence at this time. 15 THE COURT: Any objections? i 16 HR. H E I N E M A N : One moment please, Your Honor. 17 THE COURT: Sure. 18 MR. HEINEMAN: May counsel approach the bench, Your i 19 Honor? 20 THE COURT: Sure. 21 (Bench conference had out of the hearing of the 22 j u r y . ) j 23 i MR. HEINEMAN: This exhibit, which is what number? 24 THE COURT: 1780. 137 1 MR, HEINEMAN: Your Honor, I thought Mr. Carr said 2 it was a transcript. What I have is definitely not a 3 transcript. 4 MR. CARR: Right. I agree. It is part of the 5 record. I misspoke. It is part of the compens a t i o n record. i ! 6 MR. HEINEMAN: All right. Your Honor, at this 7 point we would object to their document as being hearsay and i 8 as having no authentication or identification by this 9 witness, no foundation has been laid by the witness in court i j 10 with respect to allowing it to be admitted into evidence. It 11 is not a document created by -- well, I have said what I need 12 to say. 13 MR. CARR: Your Honor, the status of this record is 14 the same as many other Monsanto records that we have 15 heretofore offered. These are documents that were produced I I 16 to us by Monsanto from their files dealing w ith the subject 17 of dioxin and dealing with these people. There has been a 18 considerable issue made of the compensation commission 19 hearing and records thereof and these documents are 20 authenticated and Monsanto has represented to us that they i 21 are authentic. 22 THE COURT: I think they probably fall under that 23 status. I think also since it is part of the record of an 24 official tribunal, I can take judicial notice of it, too, and 138 * 1 I would do that also since I don't think there is any dispute 2 that it is part of the record of the W o r k men's Compensation 3 Board of West Virginia at the time, the way it was 4 constituted in the '50s. On both things I will deny it. 5 I think you should correct for the jury that this 6 part of the record was not a transcript. 7 MR. HEINEMAN: Am I, in terms of the future rulings 8 of the court, am I to understand that anything that is an 9 official record of the Workers Compensation Commission will 10 be admitted under judicial notice of this court? 11 THE COURT: Assuming that it is relevant, it could 12 be 13 MR. HEINEMAN: All right. 14 THE COURT: I would think so, assuming that it is . 15 r e l e v a n t . 16 MR. HEINEMAN: All right. 17 THE COURT: Now, you know, I mean, as the question 18 of relevancy or any other objection that I can't think of 19 right now. If it is raised then, I will consider it but I 20 would think as a general rule, that is true. 21 MR. HEINEMAN: But the record of the court or the 22 commission would be judicially noticed. All right. 23 (The following proceedings were had in the hearing 24 and presence of the jury). 139 1 Q. Doctor/ I described this as a transcript. In fact 2 it is not a transcript. It is a p o r t i o n of the records on | 3 file with the West Virginia Industrial Commission/ is it n o t , \ 4 sir/ and not a transcript of testimony? At least the part 5 that we have here contains no testimony/ isn't that correct/ 6 sir? 7 A. i Well/ all I see are letters to the commission/ sir/ 8 and I see a cover sheet. 9 Q. My question. Doctor/ it does not contain any 10 testimony, does it, sir? 11 A. But the cover sheet indicates, so -- 12 Q. It is not a transcript of testimony, is it, sir? 13 A. All but the first sheet, sir. j 14 Q. The first sheet is simply an index, Doctor. It is 15 not a transcript, isn't that correct, sir? 16 A. But I am not sure what it is an index of, sir. 17 Q. All right, Doctor. And also show you Plaintiffs' 18 Exhibit 1780A and ask you to c o n f i r m that that is a part of 19 1780 and it has on the top of it Employer Exhibit Number 1 I i 20 and it is a report signed by Doctor Nestmann, is it not, sir? 21 A. Yes, it is a report signed by Doctor Nestmann. 22 MR. CARR: Your Honor, I would like to pass that 23 report to the jurors, if I might. 24 A. Sir, is there a date? 140 i 1 THE COURT: Go ahead, Mr. Carr. | 2 (Plaintiffs' Exhibit 1780A is passed to the jury). 3 Q. Doctor, the date you can see there is July 6, 1955? 4 A. Thank you, sir. i 5 Q. Doctor, this particular exhibit has a number of 6 statements about Harold Young, does it not? 7 A. Which statement? 8 Q. The 1780A that I have passed to you, sir? 9 A. 1780A is the findings of Doctor Nestmann, sir, yes. 10 Q. And could I have a 1780B. Doctor, 1780B is a 11 blowup of the second page or signature page of the Nestmann j 12 report, is it not, sir? 13 A. Yes, I believe it is. t 14 MR. CARR: Your Honor, I would offer 1780B into 15 evidence at this time. 16 THE COURT: All right. | t 17 MR. H E I N E M A N : It is already admitted. 18 MR. CARR: The blowup has not been, counsel. 19 THE COURT: It is part of 1780. jl 20 MR. HEINEMAN: Well, may the record we have made in 21 connection with 1780 apply? 22 THE COURT: Sure. 23 MR. HEINEMAN: To 1780A and B as well, Your Honor? 24 THE COURT: Right. It so applies. 141 1 Q. Doctor, is there in that Nestmann report any 2 diagnosis of Doctor Nestmann that Mr. Young has a case of 3 severe psychoneurosis? 4 A. No. But there is no diagnosis or impression here, 5 sir. 6 Q. Doctor, could you answer my question, please, sir? 7 A. No. 8 Q. And, Doctor, this particular sheet is not on Doctor 9 Nestmann's stationary, is it? It appears to be progress 10 notes, something like you would use in a hospital record, 11 ir? 12 A. I can't say from the way this is. 13 Q. Doctor, you see there is no letterhead, do you not, 14 sir? 15 A. Yes. But I can't assume that it is hospital 16 records, sir. 17 Q. May I just give the q uestion to you one more time 18 Doctor. It is not, it does not have Doctor Nestmann's 19 letterhead on it, does it, sir? 20 A. I don't see Doctor Nestmann's letterhead, sir. 21 Q. It has the words progress notes and then over to 22 the left it has got hospital number, does it not, sir, and 23 then room or ward? Do you see that, sir, and then a place 24 for the doctor? 142 j 1 A. It is illegible so I can't really verify that. i 2 Q. You can't make out the abbreviation hospital number i 3 and the doctor and the bed and the room or ward? 4 A. No, I can't but I will accept that, sir. I i 5 Q. Thank you, Doctor. And, Doctor, do you recall I 6 asked you, suggested to you I think it was yesterday that 7 perhaps the reports that were given to the Workmen's Comp t 8 Commission had been edited so as to remove certain diagnoses 9 concluding or referring to the psychoneurosis and you said 10 no, that could not be. Do you recall that? 11 A. I believe I recall that vividly, sir. 12 Q. Yes, you do, Doctor. I hand you now what has been 13 marked as Plaintiffs' Exhibit 1781 and I will represent to ! 14 you, sir, that these are hospital records furnished to us by 15 Monsanto relating to Harold Young as per our request a couple 1 16 of weeks ago and, Your Honor, I will offer 1781 into evidence 17 in just a minute. 18 THE COURT: Any objection? 19 MR. HEINEMAN: One moment, Your Honor. 20 THE COURT: Sure. Go ahead. 21 MR. HEINEMAN: Would counsel approach the bench, 22 please? 23 THE COURT: Sure. 24 (Bench conference had out of the hearing of the 143 1 jury,) 2 MR. HEINEMAN: Your Honor, we will object to this 3 on the same grounds that we have objected before to these j 4 outside medical record. A, they are hearsay. B, there has 5 been no authentication, no identification, therefore, no 6 foundation. i 7 THE COURT: I will incorporate your argument on 8 both sides and the ruling is the same. They are admitted 9 over objection. I will incorporate your arguments and yours 10 at this time. 11 MR. CARR: Thank you. 12 (The following proceedings were had in the hearing 13 and presence of the jury) 14 Q. Doctor, I will now hand you what has been marked 15 Plaintiffs' Exhibit 1781 and ask you to co n f i r m that this is 1I 16 a copy of the progress notes signed by Doctor Nestmann that 17 is in the exhibit 1780 that I p r eviously had given you? 18 1781, sir. We are now looking at 1781, sir. 19 MR. H E I N E M A N : What is the number of the new 20 exhibit? i 21 MR. CARR: 1781A which is the progress notes signed 22 by Doctor Nestmann that is part of exhibit 1781 which are the 23 hospital records relating to Harold Young and, Your Honor, I 24 would like to pass that report of Doctor Nestmann's to the 144 t 1 jury as well. 2 THE COURT: Fine. 3 MR. CARR: Have I given the Court a copy of that? 4 THE COURT: No, I d o n 't have it. 5 MR. HEINEMAN: Has the witness identified it? 6 (Plaintiffs' Exhibit 1781A is passed to the jury). 7 Q. Doctor, the exhibit I gave you is part of the 8 ,hospital records, is it not, sir? These two, Doctor, are the 9 same, are they not, sir? 10 A. I have to assume that is part of the hospital 11 record only because there is a room and ward number, bed and 12 Idoctor. 13 Q. No, Doctor, what I want you to do is to confirm 14 that 1781A is an exact duplicate of the record of Doctor 15 Nestmann's in 1781, that is the hospital records. One is 16 just a copy of the other. That is what I want you to do, 17 |s i r . 18 A. Okay. 19 MR. HEINEMAN: Do you have a copy of 1781A? 20 MR. CARR: 1781A, counsel, is this here. 21 Q. Doctor, is 1781A that has been passed to the jury 22 is part of the hospital records 1780, is it not, sir? 1781, 23 rather? 24 A. It appears to be. 145 1 Q. Well, Doctor, it is exactly. One is a copy of the 2 other, is it not, sir? 1781 is an exact copy, photocopy, i 3 even the tear in the page is the same. One is a photocopy of ! 4 the other, isn't that correct, sir? 5 A. Yes, it is. Ii 6 Q. And signed Dy Doctor Nestmann, is it not, sir? 7 A. I believe so.* 8 Q. Doctor, 1781B is a b lowup of the second page of 9 that hospital report signed by Doctor Nestmann, is it not, | 10 sir? 11 A. 12 Yes, I believe it is. MR. CARR: I offer 1781B into evidence, if it please i i I 13 the Court. 14 MR. HEINEMAN: Can we have the same record, Your 15 Honor? 16 THE COURT: Sure. i I 17 MR. HEINEMAN: With respect to 1781. 18 THE COURT: I will incorporate all arguments. It 19 is admitted over objection. 20 Q. Doctor, the hospital report is word for word -- the 21 two exhibits bearing Doctor Mestmann's signature are exactly 22 the same word for word with the exception of one line, I am 23 sorry, three lines referring to the Carnow medical index and 24 the impression of severe psychoneurosis, isn't that correct, 146 1 sir? 2 A. It does appear that way/ sir 3 Q. And/ Doctor/ the progress notes from this hospital 4 report that was sent to the commission or given to the 5 compensation commission does not contain the impression of 6 severe psychoneurosis for Harold Young, does it, sir? 7 A. I don't know, sir. 8 Q. Look at it, sir, if you would, 1780, sir? 9 A Yes, sir I have it right here i! I 10 Q. It does not contain, does it, sir, the diagnosis of | 11 severe psychoneurosis for Harold Young? 12 A. No. But I don't know whether this was sent to the 13 commission* 14 Q. Doctor, you see that marked Employers Exhibit 1? ii 15 It is part of the record that was sent to the commission and 16 that is in the commission's record. You do see that, do you 17 not, sir? 18 A. No, I don't. Where does it say that? 19 Q. Doctor, if you would look at the exhibits that have j 20 been given you, this is where it says it, sir. J 21 A. No, sir. It doesn't say that, sir. j 22 Q. It doesn't say severe psychoneurosis? 23 A. No, it doesn't say that this is part of the 24 commission's record. This does not refer to that record, 147 1 sir. This is only an index and it has somebody else's name 2 on it. 3 Q. Doctor# this has been given to us and the Court has 4 admitted it into evidence as part of the commission's 5 record. Would you accept that as correct and true# sir? 6 A. If that is the case# I accept it but -- 7 Q. And# Doctor# this particular report is listed as 8 Employers Exhibit Number 1 in these commission records# is it 9 not# sir? 10 A. There is an item which reads Employers Exhibit 11 Number 1# yes# sir. 12 Q. And that item is the progress notes dealing with 13 Harold Young# signed by Doctor Nestmann, is it not# sir? 14 A. It appears to be that# sir. 15 Q. And# Doctor# it is word for word identical to the 16 hospital record, progress notes, with the exception that the 17 impression of severe psychoneurosis and the sentence 18 preceding that is omitted from the report given to the 19 commission# isn't that correct# sir? 20 A. Well# all I can say is that it doesn't contain 21 those three lines# sir. 22 Q. Doctor# I would like for you to answer my question 23 that the two reports are word for word identical with the 24 exception that the hospital notes# Exhibits 1781 and 1781A 148 1 include the severe psychoneurosis impression of Doctor 2 Nestmann, isn't that correct, sir? 3 A. That is correct, 4 Q. Doctor, are you aware of the fact, sir, that this 5 is considered editing? 6 A, No, sir* It doesn't have to be that at all. 7 Q, It doesn't have to be that at all? 8 A. No, not at all, sir* 9 Q* But it is, isn't it? 10 A. No, sir* n Q, Doctor, did Doctor Nestmann arrive at an impression 12 as part of the hospital records that this man was suffering 13 from in his impression severe psychoneurosis? 14 A Yes 15 Q. The man was hospitalized, was he not, sir, by 16 Doctor O'Dell? 17 A* I don't know who he was hospitalized by, sir* 18 Q. If you look at the front of the exhibit, it will 19 tell you* His doctor is Doctor O'Dell and he was employed by 20 Monsanto* That pay is going to be by Monsanto. Private 21 pay. Doesn't it say that, sir? 22 A. I don't see what you are referring to, sir. I see 23 O'Dell's signature July 27, 1955, but I don't see the other. 24 Q. Doctor, would you look at the exhibit that is the 149 1 hospital record Herbert J. Thomas's exhibit 1781, sir? 2 A. 1 have it, sir. 3 Q. Now, do you see, sir, that it is the Herbert J. 4 Thomas Memorial Hospital record? 5 A. I do. 6 Q. And do you see that the admitting doctor is Doctor 7 O'Dell? 8 A. Yes. 9 Q. And do you see that it is the employer Monsanto? 10 A. Yes, I do. 11 Q. And do you see that the account will be billed to 12 Monsanto, private pay? 13 A. Yes, I do, sir. 14 Q. And, Doctor, the next two pages of those hospital 15 records contain, does it not, sir, the Nestmann report? 16 A. Yes, sir. 17 Q. And, Doctor, so that you can see that they are in 18 chronological order, Monsanto has put microfilm page numbers 19 or page numbers on this exhibit and this report is in the 20 exact chronological order, is it not, sir, on these hospital 21 records? 22 A. I believe this is just one hospital record, sir. 23 One single record, that is correct. 24 Q. Doctor, my question to you is, you can examine the ______________________________________________________ ____________________ j 150 -a) 1 numbers on Exhibit 1781 and you will see that they are 2 numerically consistent, one follows the other, they are all 3 part of one record, are they not, sir? This is the way it 4 was given to us by Monsanto, Doctor Suskind. Do you see 5 that, sir? 6 A, Yes, I do, sir. I 7 Q. And, Doctor, this report w h i c h contained -- when 8 the man was hospitalized for his various problems and worked 9 up and examined by Doctor O'Dell, Doctor O'Dell caused to be 10 included in that record these progress notes, did he not, I 11 sir? 12 A. I believe he wrote progress notes, yes. 13 Q. No, he wrote at the b o t t o m of page two, sir, copy 14 for chart, Richard O'Dell, M.D., isn't that right, sir? On 15 the page number 9566145, sir? i 16 A. Correct. 17 Q. And he caused Doctor Nestmann's report to be 18 incorporated in this hospital chart, did he not, sir? 19 A. Yes, I believe so. 20 Q. And there is no q u estion that what he would have | i 21 known and Doctor Nestmann would have known, that the hospital 22 progress reports have been part of the hospital records in 23 July of '55 contain Doctor Nestmann's impression of severe i 24 psychoneurosis, isn't that correct, sir? 151 1 A. I assume so. 2 Q. Doctor, I don't want you to assume so. I want you 3 to look at the record and be sure that Doctor O'Dell who put 4 his signature on this chart as well as Doctor Nestmann would 5 have been aware of the diagnosis or the impression of Doctor 6 Nestmann, that is severe psychoneurosis on the part of Harold 7 Young. Doctor, you are now looking at the report that was 8 given to the commission. My question to you -- 9 A. I am comparing them, sir. Yes, 10 Q. Didn't you already agree that they were the same 11 word for word, sir, except for the impression that was left 12 out? 13 A. No, sir. I did not. This is a copy for chart 14 signed by Richard O'Dell and is not in the report allegedly 15 submitted to the commission and there may be reasons for 16 that. 17 Q. Doctor, it wasn't allegedly submitted to the 18 commission. These records including the compensation 19 commission reports are reports that were given us by your 20 employer, Monsanto. They have been admitted into the record 21 of the evidence of this court. The Court has taken judicial 22 notice of the compensation commission. It is not alleged. 23 Doctor. 24 J MR. HEINEMAN: Objection to the statement that the 152 * 1 witness is employed by Monsanto- I think Mr. Carr knows 2 better than that. 3 THE COURT: Objection is overruled. 4 Q* Doctor, the records in the commission that the 5 commission had of Doctor Nestmann's report. Employers Exhibit 6 Number 1, does not include the diagnosis of severe 7 psychoneurosis, does it, sir? 8 A. It does not and there could be reasons. 9 MR. CARR: Your Honor, would you instruct the 10 witness to quit responding -- I know there could be reasons 11 but quit volunteering things of that sort. Your Honor. 12 THE COURT: Doctor, again, you were offering 13 comments that are not called for within the scope of the 14 question that has been asked of you. I have asked you a 15 number of times today and I am asking you again please 16 refrain from doing that. Just answer the question that is 17 asked of you. No more, no less. 18 Q. And, Doctor, so that it is crystal clear, there is 19 no question that what Doctor Nestmann said, his impression of 20 Harold Young is that he has got a severe psychoneurosis based 21 upon his Cornell Medical Index Health Questionnaire and that 22 this isn't a part of the record that was in existence in July 23 of 1955, isn't that correct, sir? 24 A. In Exhibit 1781 and 1781A, yes, sir. 153 1 Q. Isn't that correct, sir? 2 A. It is in 1781 and 1781A, sir. 3 Q. And, Doctor, it was in existence prior to the time 4 qf the compensation commission hearing, was it not, sir? 5 A. I don't know that, sir. 6 Q. You don't know that, sir? 7 A, No. 8 Q. Do you see the same date. Doctor, on the exhibits? 9 And, Doctor, do you recall that you testified before the 10 compensation commission in 1956, sir? 11 A. I recall that, sir. 12 Q. And if you will look at the state compensation 13 commission page preceding Doctor Nestmann's report or it is 14 on the very same page that Doctor Nestmann's report starts, 15 it bears a date there of the 20th day of July, 1956, sir? 16 A. I am not sure I am following you, sir. What 17 exhibit? 18 Q. 1781A, sir. 1780A, I am sorry. 19 A. May I see it, sir? 20 Q. Right there, Doctor. July of 1956? A. Yes. Q. There is no question but what Doctor Nestmann's report, that the man has severe psychoneurosis, was in existence prior to July of 1956, prior to November of 1956, 154 1 isn't that correct, sir? 2 A. Yes, Doctor Nestmann's report in 1955, I see. 3 Q. And, Doctor, the report that was in existence in 4 1955 as part of the hospital records was edited, was it not, 5 sir? 6 A. No, sir. i 7 Q. Doctor, what do you consider editing means? Let me 3 answer it for you, Doctor. Editing is changing? 9 A. Well, you ask me a question and let me answer it. 10 Would you like me to answer your question, sir? I l 11 MR. CARR: Your Honor, would you direct the witness 12 to -- 13 A. Well, he asked me a question. i i14 MR. H E I N E M A N : Objection. He asked him a question, i 15 THE COURT: And then he modified it and he has the 16 right to do so. Objection is overruled. i J 17 Q. Okay. 18 THE COURT: Wait until the q uestion is fully asked 19 of you and then answer it, please. 20 Q. Doctor, editing means change, doesn't it, sir? 21 A. Not necessarily. 22 Q. Well# what else does it mean? 23 A. It means looking through a report and making sure 24 that the report is accurate. The report is accurate 155 1 grammatically, it is accurate factually, it is accurate in 2 this instance in the way of impressions or diagnoses. There 3 are a variety of things that in a medical report are 4 considered editing. 5 Q. Doctor, you do consider, then, that this report was 6 changed, was it not, sir? 7 A. No, sir. 8 Q. Doctor, is the report that was in existence in 1955 9 by Doctor Nestraann, did it contain an impression severe 10 psychoneurosis? 11 A. No. But that doesn't mean that it was edited. 12 Q. It did contain that, did it not, sir? 13 A. It might have been inserted later, sir. 14 Q. Doctor, excuse me. How could it be inserted i 15 later? It is in the hospital records that came in in July of 16 55, sir. 17 A. Okay. 18 Q. But that is not an insertion later, is it, sir? 19 Excuse me, Doctor. That is not an insertion later, is it, i 20 sir? 21 A. It could be. It could very well be. 22 Q. Doctor, this is in a report that is part of the 23 hospital records dated July of 1955, isn't that correct, sir? 24 A. Yes, sir. We have -- 156  * 1 Q. And, Doctor, that preceded the report that was 2 given to the commission by a year at least, did it not, sir? 3 It was earlier than the report given to the commission, 4 wasn't it, sir? 5 A. I don't know when this report was given to the 6 commission, sir. 7 Q. Doctor, I have given you the date. The date of the 8 hearing was November of '56. There is a date appears on the 9 same page of July of '56. That is a year before the hospital 10 record was made, is it not? 11 A. Yes. 12 MR. HEINEMAN: Your Honor, may counsel approach the 13 bench? 14 THE COURT: Yes, you may. 15 (Bench conference had out of the hearing of the 16 j u r y . ) 17 MR. HEINEMAN: Your Honor, as Mr. Carr knows, the 18 Workmen's Compensation Commission hearing went on for a very 19 long period of time. To just allege to this witness that the 20 only hearing was November of '56 when this witness testified 21 is patently false. 22 MR. CARR: I am not suggesting that is the case. 23 MR. HEINEMAN: That is the hearing date that you 24 gave him. 157 1 MR, CARR: It is a side issue. It has nothing to do 2 with the question. The question is there is a report in 3 existence of July of '55 and this report came into existence 4 July of 1955 and that is the date the same exhibit was given 5 to the commission and bears the same date. All of it. 6 MR. HEINEMAN: You are putting them in a 7 chronological sequence which is not borne out, Mr. Carr. You 8 are saying that it has to be before because the hearing was 9 in November. There were hearings for three years on this, on 10 these workmen compensation matters in Nitro, West Virginia. 11 MR. CARR: The commission couldn't very well have 12 been prior to July of '55, could it, counsel? 13 MR. HEINEMAN: I don't know exactly when they 14 started. 15 MR. CARR: This particular hearing could not have 16 been in existence prior to July of '55. There is no way. 17 There could nave been a hearing that predated July of '55 18 with regard to this exhibit. 19 THE COURT: Objection is overruled. Let's 20 proceed. 21 MR. HEINEMAN: Your Honor, further, Mr. Carr has 22 suggested that this document, 1781, is in c h ronological order 23 and I don't think it is. 24 MR. CARR: It is in the order it was given to me by 158 1 Monsanto 2 MR. HEINEMAN: That isn't the point, Your Honor. 3 He made a representation that it was in chronological order 4 and, therefore, these documents necessarily followed each 5 other in a particular sequence. I don't think that is 6 accurate. It covers all kinds of dates. 7 MR. CARR: So what? 8 MR. HEINEMAN: You are basing a premise on 9 sequence. 10 THE COURT: Let's go ahead. Objection is 11 o v e r r u l e d . 12 (The following proceedings were had in the hearing 13 and presence of the jury). 14 Q. Doctor, the report that the commission has in its 15 file is changed from the report that Doctor Nestmann created 16 in July of '55, isn't it, sir? 17 A. No, sir. 18 Q. Look at the two reports again, Doctor. 19 A. It is different but I don't think that one can say 20 it was changed. This might have been submitted to them not 21 in '56, it might have been submitted to them in '55 when the 22 patient was being discharged and I don't know that the 23 Cornell Medical Index which is recorded in the hospital 24 record, the Cornell Medical Index Test was not done after his 159 1 hospitalization or after this was actually submitted* That 2 is a real possibility* That is a real possibility that the 3 Cornell Medical Index Test was may be done in Doctor 4 Nestmann's office* That is a possibility and he then added a 5 real possibility that he simply added this man was asked to 6 fill out a Cornell Medical Index questionnaire and this shows 7 evidence of psychoneurosis. I don't know from this record 8 whether it was done in the hospital or after the man was 9 discharged and, therefore, I cannot say that this record was 10 changed* It simply doesn't contain that statement. n Q. Doctor, when was the man discharged? Let me help 12 you, Doctor. On the first page he is discharged on July 27, 13 1955. The bottom of the page, Doctor, of the 1781? 14 A. July 27, 1955, yes, sir. 15 Q. And when was he admitted to the hospital. Doctor? 16 A. I assume that -- 17 Q. It is also on the1cover page, Doctor. July 22, 18 1955? 19 A. Admitted? 20 Q. Yes, Doctor. 21 A. Well, then how can this report be July 6? 22 Q. Doctor, could you answer my question? It shows July 23 22, 1955, does it not, sir? 24 A. Yeah. Which differs from the report. 160 --* 1 MR. CARR: Your Honor, would you direct the witness 2 to answer ray question? 3 THE COURT: Doctor. Again -- 4 Q. Okay. Sorry. 5 THE COURT: Remember what I said before. Confine 6 your answers to the questions, Doctor. 7 Q. And, Doctor -- 3 9 bench? MR. HEINEMAN: Objection. May counsel approach the !I 10 THE COURT: Yes, you may. 11 (Bench conference had out of the hearing of the 12 j u r y . ) 13 MR. HEINEMAN: Your Honor, this is what I am i 14 talking about in terms of this sequence business that Mr. 15 Carr has alleged. The witness has laid eyes on something 16 that I didn't even see. The hospital record shows he was i 17 admitted 16 days after this report. 18 MR. CARR: Exactly right, counselor. We have 19 already established that Doctor O'Dell had it made part of 20 his chart. It said so. If you turn the page, counsel, you 21 will see that. We have already established that Doctor 22 O 'Dell -- 23 MR. HEINEMAN: That has nothing to do with it. 24 MR. CARR: That is what you think. 161 - 1 THE COURT: Objection is overruled. 2 (The following proceedings were had in the hearing 3 and presence of the jury) 4 Q. Doctorr the man was admitted on July 22 and 5 discharged on July 27, was he not, sir? 6 A. That is what the head sheet of the Thomas Memorial 7 Hospital indicates, sir. 8 Q. And Doctor Nestmann's report was made on July 6, 9 1955, was it not, sir? 10 A. That is correct. 11 Q. Prior to the time the man entered the hospital on 12 that particular time, isn't that correct, sir? July 6 is 13 before he was admitted to the hospital on July 22, isn't that 14 correct, sir? 15 A. That is correct, sir. 16 Q. And, Doctor, the report of Doctor Nestraann was 17 written by Doctor O'Dell at the bottom. It says copy for 18 chart, isn't that correct, sir? Richard O'Dell, M.D.? 19 A. That is correct. 20 Q. And, Doctor, we have already established what 21 Doctor O'Dell did. He had Doctor Nestmann's report and he 22 put it in the hospital record as part of Harold Young's 23 chart, isn't that correct, sir? 24 A. That is what Doctor O'Dell did, sir? 162 ' 1 Q* That is correct, sir, is it not, sir? 2 A. Yes 3 Q. All right* Now, Doctor, that was in existence, 4 therefore, in July of '55, was it not, sir, with the 5 diagnosis on it psychoneurosis, severe psychoneurosis? 6 A* I am actually confused, sir, about the sequence. 7 Q* Doctor, this report was in existence in July of 8 1955 bearing the diagnosis severe psychoneurosis, was it not, 9 sir? 10 A. Yes, it was* 11 Q. And, Doctor, the document given to the commission 12 and' as part of this record, sir, does not contain that 13 diagnosis, does it, sir? 14 A. It doesn't contain that particular diagnosis* 15 Q. It is changed or different from the diagnosis that 16 was made in July of *55, is it not, sir? 17 A* No* No, sir* 18 Q* Are you reading the same report, Doctor, that I am 19 reading? 20 A* Yes. I am reading 1780A. ! 21 Q. Does the document that is in the commission record / Ii 22 does it include the diagnosis of severe psychoneurosis? 23 A* It doesn't include any diagnosis, sir* 24 Q* Doctor, does it include the diagnosis of severe 163 - 1 psychoneurosis? 2 A. No, it does not. 3 Q. It is different from the July of 1955 report that 4 is part of the hospital records, is it not, sir? 5 A. It is. 6 Q. And, Doctor, is a change -- when one edits 7 something, does one change something? 8 A. If you are asking about a general statement -- 9 Q. Yes, Doctor, when one edits something, does one 10 make it different than what it was? 11 A. Might. 12 Q. And, Doctor, the report that was given to the 13 commission is changed from the report that was in the 14 hospital record? 15 A. No, sir. It is different. Not changed. 16 Q. Doctor, does it contain the diagnosis, that is, 17 severe psychoneurosis? 18 MR. HEINEMAN: Objection. Asked and answered. 19 THE COURT: Objection is overruled. 20 A. There is no diagnosis on that chart, sir. The 21 diagnosis is not there, sir. 22 Q. The question I have asked you, does it contain the 23 diagnosis of severe psychoneurosis, Doctor? 24 A. It does not, sir. |lti 164 1 Q. Doctor, the reports that you read of Doctor 2 Nestmann that were given to the commission, not just with 3 Harold Young but all of the reports signed by Doctor Nestmann 4 of which you are aware, none of those reports contained the 5 diagnosis of Doctor Nestmann, that is that the man had these 6 severe, moderate or mild psychoneurosis, isn't that correct, 7 sir? 8 A. That is not so, sir* 9 Q. Doctor, this morning Monsanto delivered to us the 10 workmen's compensation records that contain Doctor Nestmann's 11 report, his written reports that were submitted to the 12 commission* I have placed a yellow tab on each of those 13 reports that is in 1782* 1 would like for you to look at 14 each of those reports, sir, and tell me if there is a single 15 one of those reports that contains a diagnosis of severe 16 psychoneurosis? 17 MR. HEINEMAN: Objection, Your Honor. May counsel 18 approach the bench? l 19 THE COURT: Yes, you may. 20 (Bench conference had out of the hearing of the 21 jury.) 22 MR. HEINEMAN: I object. Your Honor, to this 23 procedure when Mr. Carr is allowed to make these outrageous 24 statements. First of all, he is implying that we just gave 165 -*# 1 objections to it. 2 MR. HEINEMAN: Well, I will mark it and offer it 3 right now. 4 MR. CARR: Counsel, you cannot because I have got 5 the witness at this point in time and I am asking the witness 6 questions and I would object to you doing anything of the 7 kind to interfere with my cross examination. 8 THE COURT: You can mark it and offer it later. 9 Objection is overruled. 10 (The following proceedings were had in the hearing 11 and presence of the jury). 12 Q. How far along are you, Doctor? 13 A. I have a little more to go. 14 Q. Doctor, you are taking these reports out of the 15 exhibit, out of the order that they were in. I didn't ask 16 you to do that. 17 A. Well, I want to make sure that I have all of the 18 Nestmann -- 19 Q. Doctor, all I asked you to do was to look at the 20 ones with the yellow tab. 21 A. I am doing that, sir. 22 Q. But you are doing more than that, Doctor. You are 23 breaking up the exhibit. 24 A. Not really. I am simply -- 178 i -S' 1 Q. Doctor, don't take any more out, Doctor, but 2 looking at the exhibits that have the pages that have the 3 tabs on them and see if those are Nestmann reports and 4 whether or not they contain a statement of severe 5 psychoneurosis or moderate or mild psychoneurosis, will you | ! 6 do that please, Doctor? 7 A. Yes, sir* i s[ | I I8 Q. Doctor, that is not a Nestmann report. Here is the j i 9 yellow tab here, sir. Doctor, the page you are looking at is | 10 not one with a yellow tab on it. It is not a Nestmann j i 11 report. 12 A. It is a diagnostic report, sir. 13 Q. Doctor, this is a summary about Doctor Nestmann1s 14 testimony by counsel for Monsanto. I am asking you, Doctor, 15 to look at the Nestmann reports submitted by Monsanto. 16 A. That is reference. 17 Q. This is not a report. You see it says summary of 18 Doctor Nestmann's testimony. You know the difference between 19 testimony and a report, don't you, Doctor? 20 A. I believe I do, sir. I I\ \ i I j iI i il j iI i i i j \ tf j 21 Q. Thank you, Doctor. One more. Doctor. j I 22 A. If you allow me to read these, I will be happy to I 23 answer your question. ! ! f 24 Q. Doctor, I am allowing you to read them. I want you ] 179 1 to look for statements in the reports of the psychoneurosis? 2 A. I would like to have the time to read them, sir. 3 Q. Now, Doctor, you have looked at all the pages that 4 have yellow tabs on them. On those Doctor Nestmann reports, 5 was there any mention to the commission in those reports that 6 any of the workers had severe, moderate or mild 7 psychoneurosis? 8 A. On these reports sent to the commission, sir -- 9 Q. Could you answer my question, Doctor, please, sir? 10 A. Well, in those reports, sir, I don't see any 11 mention of psychoneurosis. 12 Q. Thank you, Doctor. 13 THE COURT: Mr. Carr, we are going to have to break 14 at this time. 15 MR. CARR: Yes, Your Honor. That is part of the 16 record. 17 THE COURT: Ladies and gentlemen, we will end the 18 proceedings for the day at this time. We will resume again 19 tomorrow morning at 9:30. I would remind you as I do on any 20 overnight break you are not to read, listen to or watch 21 anything about this case in particular or the subject matter 22 in general in any of the media. Thank you for your attention 23 and cooperation. Court is adjourned. Gentlemen, could I see 24 you in chambers, please. 180