Document 8RqVR7w8Z4ZBJgz9dOMzwm9Qk

1 1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 FRANCES E . KEMNER, et al. 4 Plaintiff, 5 vs. 6 MONSANTOCOMPANY, 7 Defendant. } ) ) ) ) ) ) ) ) No.80-L-970 8 Before the HON. RICHARD P. GOLDEKHERSH, Judge 9 10 11 REPORT OF PROCEEDINGS 12 JURY TRIAL 13 December 16, 1985 14 15 16 APPEARANCES: 17 MR. REX C A R R & MR. JERRY S E I G F R E I D , Attorneys at Lav/ Appeared on Behalf of the Plaintiff. 18 19 MR. K E N N E T H R. HEINEMAN & MR. JOSEPH NASSIF, Attorneys at Lav/ 20 A p p e a r e d [ o n Behalf of the Defendant. 21 22 23 MARSHA SCHNIPPER 24 Official Court Reporter 1 INDEX 2 DR. FRANK D O S T .......................... . REDIRECT EXAMINATION BY MR. HEINEMAN , 3 RECROSS EXAMINATION BY MR. CARR 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PAGE 2 39 1 EXHIBITS Page 2 Identified 3 EXHIBITS SUBMITTED ON BEHALF OF THE PLAINTIFF: 4 Plaintiffs* Exhibit No.: 5 16 46A 143 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page Admitted 157 1 BE IT REMEMBERED AND CERTIFIED that heretofore, on 2 to-wit: December 16, 1985, being one of the regular judicial 3 days of this Court, the matter as hereinbefore set forth came 4 on for hearing before the Hon o r a b l e R i c hard P. Goldenhersh, a 5 Judge in and for the T w entieth Judicial Circuit of the State 6 of Illinois, Belleville, St. Clair County, Illinois, and the 7 following was had of record, to-wit: 8 9 ******* 10 11 (The following proce e d i n g s were had in open Court.) 12 THE COURT: Morning. 13 FRANK DOST, 14 being called on behalf of the defendant, having been first 15 duly sworn, testified as follows: 16 R E D I R E C T E X A M I N A T I O N 17 BY MR. HEINEMAN: 18 Q. Dr. Dost, I'd like to ask you about the subject of 19 photodegradation, sir, and ask you if you recall w h e n Mr. 20 Carr was examining you on that subject and suggesting to you 21 that Dr. Zabik had a calculated 36-hour photode g r a d at i o n 22 period from a theory that the loss of the first ten percent 23 of the TCDD in the sunlight would hold true for the rest of 24 the time, and that the paper he relied on did not actually 1 substantiate his calculation. Do you recall that testimony, 2 sir? "i ^ 3 A. Yes, I do. 4 Q. Now, I'd like you to assume, sir, that Dr. Zabik 5 actually testified as follows: Beginning with the first 6 answer on Page 96 on October 30th, 1985. I use the 36 hours 7 from the extrapolation of that graph, yes. Question: And 8 that graph doesn't in fact hold, support the theory of the 9 ten percent, does it, sir? Answer: It does for the first 10 half life, which is what we use. Question: Not for on soil. 11 Answer: For on soil it would be much faster if I 12 used the ten percent half life. Question: That's what I'm 13 talking about. Your t h e o r y d o e sn't hold true? Answer: No, ^ J 14 it would be faster if we were to use the ten percent. 15 And ask further, sir, that you assume that he 16 testified as follows also on October 30, 1985 at Pages 158 17 and 159. Question: And I thought you said something about 18 there is any other method. Well, e x p lain the m ethod that is 19 used to your knowledge by experts in p h o t o c h e m i s t r y in 20 establishing half lives. Answer: Yes. W h e n e v e r v/e do a 21 half life, we run the reaction to ten percent completion, 22 generally run it past that, but v/e only use the first ten 23 percent of the reaction, b e c ause that is the reliable portion 24 of the reaction from m a n y phy s i c a l chemical pr o p e r t i e s of 1 that type of a reaction. We then plot the data, and we also 2 determine the first order of rate constant for it and then w*r ^ 3 can determine the half lives. In the case of photochemistry 4 these reactions are first order, pseudo first order really. 5 Question: And the calculations that you did in 6 this case with regard to the Crosby data did they use the 7 first ten percent? Answer: No, I did not. That was the 8 steepest portion of the curve so to be conservative I used 9 the next slope which was a lot slower. 10 Question: So to be conservative you u s e d -- you 11 didn't use the first ten percent? Answer: No, I did not. 12 Nov/, Dr. Dost, does Dr. Zabik's t e s t i m o n y indicate 13 to you that he used a ten percent p r ojection in reaching his , 14 36-hour half life? 15 A. No, sir, it does not. 16 Q. Are you familiar with the C rosby a r t i c l e w h i c h Dr. 17 Zabik was talking about? 18 A. Yes, sir, I believe I am. 19 MR. HEINEMAN: Do you have Defendant's Exhibit 20 1253? I have another copy of it if Tammy -- 21 THE CLERK: I've got it now. 22 MR. HEINEMAN: Thank you. That's the one. 23 Q. Sir, let me hand you what's been m a r k e d as 24 Defendant's Exhibit 1253 and ask you if that's the Crosby 1 article that you're familiar with? 2 A. Yes, sir, it is. 3 Q. Now, dir e c t i n g your attention to Page 9, sir. W h a t 4 do you see there on Page 9? 5 MR. CARR: Your Honor, this is suggesting the 6 ansv/er desired. 7 THE COURT: Objection sustained. Would you rephrase 8 the question please. 9 Q. W ould you tell the jury what there is on Page 9 10 there, sir? 11 A. Page 9 contains two figures, Figure 7, w hich is 12 p h o t o r e d u c t i o n rate of TCDD on leaves and soil treated v/ith 13 Agent Orange, and another one, photod e c o m p os i t i o n on grass 14 after treatment with an olive oil emulsion of TCDD. Figure 7, 15 I think, is the figure that relates to the issue you're -- in 16 q u e s t i o n . 17 Q. Now, sir, do you have an opinion if Dr. Zabik had 18 used the rate of photodegradation at the time only ten 19 p e r c e n t of the TCDD had photodegraded, do you have an opinion 20 what the half life calculation would have been, sir? 21 A. Yes. 22 Q. What is that, sir? 23 A. Well, using that would come to about a half -- a 24 half time of about five hours if it used the first -- the 1 data representing the degradation of the first ten percent of 2 the TCDD that was placed on the soil. 3 Q. And what half life calculation rate did he a c t u a l l y 4 come to? 5 A. He used the -- he used a figure of 36 hours. 6 Q. Does that indicate anything to you, sir, v/ith 7 respect to what portion of the curve for photodegradation he 3 actually used? 9 A. Well, he used more than ten percent. He used -- he 10 took -- the experiments ran for six hours and he took the 11 data for the entire six hour period and used that to project 12 a half time of 36 hours. 13 Q. What happens to the rate of photodegradation, sir, 14 after a period of time according to the Crosby article? 15 A. Well/ it appears that there is an initial 16 relatively rapid conversion, and then it slows down, and from 17 the data that appears here it appears to be a linear -- 18 linear degradation, that is, all of the points are in a 19 straight line after the the first ten percent. 20 Q. Thank you, sir. Now, sir, I'd like -- do you 21 recall on direct e xamination being asked, sir, about tv/o 22 separate hypothetical questions? 23 A . Yes, I do. 24 Q. Do you recall what distinguished one question from 1 the other? 2 A. Well, the two questions differed essentially in 3 that one of them assumed the various cleanup operations and 4 the other assumed no cleanup at all. 5 Q. And did you give your opinion based upon the 6 assumptions in each question? 7 A. Yes. 3 Q. Nov/, sir, do you recall your c r o s s - e x a m i na t i o n by 9 Mr. Carr on that subject? 10 A. Yes, I do. 11 Q. Do you recall his cross-examining you with respect 12 to w h e ther you had ever known about a contamination level 13 under the pass i n g track having been found at 9.2 percent of \ 14 OCP in it? 15 A. Yes, I remember that. 16 Q. And do you recall your answer to that question, 17 sir, or excuse me, that he went on in another point and asked 18 you that they tested the passing track after the initial 19 clea n u p and found a higher level of conta m i n a t i on of OCP in 20 the passing track than the figure that was given to you in 21 the hypothetical question. Do you recall that, sir? 22 A. Yes, I remember that. 23 Q. Do you recall what your answer was? 24 A. I don't recall precisely, but I believe that I 1 remarked that that was after the -- after the spring rains or 2 spring thaw. 3 Q. Information that arose in the spring after the 4 thaw? 5 A. Something of that sort, yes. 6 Q. Nov/, were you av/are, sir, of the 9.2 p e r cent of OCP 7 and phenol being found in the passing track after the initial 8 cleanup and spring thaw? 9 A. W e l l , I do remember hearing something about t h a t , 10 y e s . 11 Q. Nov/, based upon that i n f o rmation -- 12 MR. CARR: Your Honor, I object unless a source is 13 shov/n. It's hearsay. 14 THE COURT: I'm sorry. 15 MR. CARR: My objection is it's hearsay, he's 16 basing his opinion on hearsay. 17 THE COURT: Gentlemen, could you a p p r o a c h the bench 18 for a minute. 19 (At this time a c o nference was had at the b e n c h out 20 of the hearing of the jury.) 21 THE COURT: Your objection is as to -- I couldn't 22 hear what you said. 23 MR. CARR: M r . Heineman e s t a b l i s h e d that the 24 witness has heard somewhere that there was 9.2 p e r cent in th 1 passing track, and counsel now is asking a question now based 2 on that information, and that's asking for opinion b a s e d upoi^ y 3 hearsay. Counsel should give that to him as a fact in this 4 case if he wants him to base an opinion on it, not on 5 something that he may have heard elsewhere. 6 THE COURT: Any objection to that? 7 MR. CARR: Source of where it came from. 8 MR. HEINEMAN: What I just read"to him was Mr. Carr 9 asking him if he knew that there was a fact in this case of 10 9.2 percent. 11 MR. CARR: You're not ack n o w l e d g i ng to the witness 12 that that is a fact in this case. 13 THE COURT: Well, no, that's different. First 14 you've got that and then you've got h i m h e a ring it. I think 15 if you want to use it, you have to give it to him as a fact 16 for our testimony. I think the objection is well taken. 17 MR. HEINEMAN: This is O h n e c k ' s testimony, Judge. 18 MR. CARR: He's not identifying w h e r e he heard it 19 from. All he said was he*heard it somewhere. 20 THE COURT: Right. 21 MR. HEINEMAN: Well, okay, sure. I thought that was 22 what we had already done. 23 THE COURT: No, I don't think so. 24 (The following proce e d i n g s were had in open Court. 1 Q. Dr. Dost, I'd like you to a ssume as a fact, sir, 2 that there's been testimony that that 9.2 percent of phenol 3 in OCP was found in the passing track. You do assume that to 4 be true? 5 A. Yes. 6 Q. All right, sir. Now, does that fact, sir, have any 7 effect on the answer you gave to either the first or the 8 second hypothetical question? 9 A. No, sir, not at all. 10 Q. Now, based upon the information that was given to 11 you, sir, and assuming what I've just told you today about 12 the 9.2 percent, had you assumed that all of the c o n t a minated 13 material was removed from the passing track? 14 A. Mo, sir. 15 Q. Now, what is the information that you have assumed 16 to be true with respect to how the -- what removal was done 17 in the passing track? 18 A. Well, my assumption was that the material was taken 19 down, I don't recall, eight, ten inches b e l o w the ties in 20 that area, it was under the passing track. 21 HR. CARR: I object unless he states the source of 22 where that information has come from. There's no such 23 information like that in this case. 24 THE COURT: Could you rephrase your question please 1 Q. Let me ask you to assume this as a fact, sir, that 2 all the material between the passing track ties was removed 3 to a depth of eight to ten inches in the western 150 to 200 4 feet of the spill area, where the surface of the snow and the 5 ballast of the passing track had been visibly discolored by 6 the spilled chemical, all right, sir? 7 A. Yes. 8 Q. It was not eight to ten below the ties, it was a 9 total of eight to ten inches? 10 A. I see. 11 0. Okay. Now, assuming that to be true, sir, does 12 that fact cause you to change in any way your response to 13 either of the hypothetical questions that I asked you? 14 A. No, sir, it does not. 15 Q. Now, I'd like to ask you some questions w ith 16 respect to your cross-examination by Mr. Carr w i t h respect to 17 what Mr. Shroy said on volatilization. All right, sir? 18 Now, do you recall Mr. Carr discussing with you the 19 proposition that the TCDD would turn into a gas b e l o w the 20 surface where the soil meets the ballast and that it would 21 rise through the ballast as a gas and not attach to the 22 material in the ballast as it moved or rose after the OCP and 23 phenol had been removed from the soil. 24 A. Y e s , s i r , I recall t h a t . 1 Q. All right. Now, sir, I'd like you to assume the 2 following testimony from Mr. Shroy, Page 177 on September i 3 12. Question: And if any of the TCDD were in that soil and 4 that soil was removed, would the TCDD be removed? Answer: 5 Yes, sir. Question: And if it was removed, would it be 6 available to volatilize? Answer: No, sir. 7 And if clean dirt is then placed back upon the top 8 of that or clean b a l last -- Answer: Yes, sir. And if there 9 was any down b e l o w the depth to where they took it, would the 10 TCDD in order to v o l a t i l i z e have to work its wa y up through 11 that area? Answer: Just like at Eglund, yes, sir. 12 Now, wha t is your understanding, sir, based upon , "Ni 13 Mr. Shroy's t e s t i m o n y as to what would happen to TCDD as -- 14 if it were c o v ered by new ballast? 15 A. Well, it w o u l d -- there would be movement wit h i n 16 that soil of -- of m o l e c u l e s of TCDD. It would be random 17 movement, it w ould be e x c e edingly slow. He referred to 18 Eglund, and compa r e d it to the situation at Eglund, and in 19 that experiment the mate r i a l that was placed quite some years 20 ago and then studied later that was placed at a depth of, I 21 think, five inches in that -- in that soil still had not 22 emerged, had not reached the surface in 12 years, in the 12 23 years that intervened between the time it was placed and the 24 time that it was sampled. The movement upward in that -- in 1 that soil and ballast and so forth is going to be very, very, 2 very slow. 3 Q. Do you have an opinion, sir, as to what would *4 happen to TCDD in terms of ph o t o d e g r a d at i o n in the top two 5 millimeters of soil? 6 A. I think that it would be b roken down. 7 Q. Or ballast? 8 A. Or ballast or whatever the matrix is. I would 9 expect that in that zone that photodegradation would 10 certainly take place. 11 Q. Now, do you h ave an opinion, sir, as to how long it 12 would take any T C D D in the passing track to v o latilize up 13 through the ballast and reach that two millimeter zone if it 14 were c o v e r e d 'by eight to ten inches of clean ballast? 15 MR. CARR: Objection, Your Honor, this witness has 16 shown no expertis'e in this area at all. 17 THE COURT: Gentlemen, could you app r o a c h the bench 18 p l e a s e . 19 (At this time a c o nference was had at the bench out 20 of the hearing of the j u r y . ) 21 THE COURT: I think you have to make that kind of 22 objection up here. 23 MR. CARR: Yes, t h a t 's right. 24 THE COURT: Can you continue the objection. 1 HR. CARR: Yes, .my o b j e c t i o n is there's been no \ 2 qualification of this witness as an expert in this area. As 3 Dr. Shroy, Mr. S hr o y can give an o p i nion -- t h e r e 's been 4 absolutely no qualification to answer such a question or give 5 such an opinion. It calls for an expert opinion that he's not 6 qualified to give. 7 I4R. HEINEMAN: Your Honor, what this w i t n e s s has 8 clearly stated that h e 's. co n s i d e r i n g here is the -- is the 9 testimony of Mr. Shroy and particularly in connection with 10 the Eglund Air F o r c e Base m atter and his view based upon what 11 Mr. Shroy said is that clea r l y if it took in 12 years it 12 hasn't passed through four or five inches of sand, I think he 13 can in his own mind m a k e a p retty simple c a l c u l a t i o n of what ^ 14 eight to ten inches w o u l d do in terms of the time that it 15 would take to get up t h r ough that and that's all he's talking 16 about. He's not b asing it upon his own work. He's basing it 17 upon what Shroy had to say. 18 MR. CARR: Y ou're asking him for an expert opinion 19 that would counter or support either way what Shroy has said, 20 and he has no a b s o l u t e l y no information, no expertise to base 21 it upon. 22 THE COURT: I agree. I think it does call for that 23 kind of opinion. I agree that you ac c u r a t e l y described what 24 he's doing, but I think he does not have sufficient expertis-; | 1 as demonstrated in this case to render that kind of opinion 2 in this trial, so taking your description as to what he did, 3 the objection is s u s t a i n e d . 4 (The following p r o c eedings w e r e had in.open Court.) 5 Q. Doctor, I'd like you to assume that Mr. Kopis of 0. 6 H. Materials testified in this case several weeks ag o that 0. 7 H. Materials poured a bentonite sealer on to p of the passing 8 track in the spill area. Will you assume that, sir? 9 A Yes. 10 Q. Now, now, do you further recall in your exam i n a t i o n 11 by Mr. Carr his discussing w i t h you that if a m a t e r i a l were 12 present in the ballast occupying the air spaces b e l o w the 13 surface, and using OCP and phenol as an example, that it 14 would be more difficult for TCDD to v o l a t i l i z e b a s e d on what 15 Mr. Shroy had said? 16 A. Yes. 17 Q. How, sir, what is a bentonite sealer? 18 A. Bentonite is, I believe, it's a d i a t o m a c e o u s earth, 19 which is a substance that is a residue of the skeletons of 20 ancient one-celled animals that lived in the sea in places 21 where the seabed, where the sea has receded from the land and 22 left the old seabed you find deposits of this material. Its 23 value is that it is a very fine and has an enor m o u s surface 24 area and will adsorb, ad, a-d-, adsorb to its surface 1 enormous amounts of organic materials. 2 Q. Now, what would the -- do you have an opinion, sir, 3 as to what would the addition of a bentonite sealer to the 4 ballast have -- 5 MR. CARR: Objection, Your Honor, inadequate 6 foundation. 7 THE COURT: Objection sustained. 8 Q. W ould a -- would bentonite tend to fill spaces, 9 sir? 10 MR. CARR: Objection, Your Honor, leading and 11 s u g g e s t i v e . 12 Q. W hat would bentonite tend to do, sir, if you po u r e d 13 it on top of rock? 14 MR. CARR: Objection, Your Honor, inadequate 15 foundation for knowledge. 16 THE COURT: Objection sustained. 17 Q. Have you ever seen bentonite, sir? 18 A. Yes, I have. 19 Q. How have you seen it, in what manner have you seen 20 it? 21 A. I used to keep it in my laboratory, as a m atter of 22 fact, as a substance to use if -- if we spilled solvents in 23 the laboratory. 24 Q. How would you use it? 1 A. Vieil, it's -- in many respects it's like kitty 2 litter, but kitty litter is heavy grains. This m a t e r i a l is 3 very fine, and if you have a spill, you can cover it wi t h 4 material, and it'll absorb a substantial amount of organic 5 material and keep it from -- it makes it easier to pick it 6 up, keeps it from spreading around the laboratory. 7 Q- Now, sir, you have been to Sturgeon, have you not, 8 sir? 9 A. Yes, I have. 10 Q. Have you seen the ballast on the r a i l r o a d track out 11 there? 12 A. Yes. 13 Q. Have you seen the ballast on the pass i n g track? 14 A. Yes. 15 Q. And in the main right-of-way? 16 A. Y e s . 17 Q. And have you seen the ballast in the p a s s i n g track 18 -- what area have you looked at? 19 A. Well, I walked the whole length of both t r acks from 20 the -- I don't remember what the name of the street is, the 21 first street that the tracks cross in the town out to t h e -- 22 some distance past the site where I was told the car came to 23 rest, past -- there is a construction c o m pany out there, 24 walked past, well past that. There is a crossroad where 1 there is a road goes across the track at beyond the place 2 w here the car came to rest. Come to think of it, I walked i 3 all the way to that crossroad. 4 Q. Now, would you -- what does the ballast look like 5 out there that's in the passing track and in the main line 6 track? 7 A. Well, it's a mixture of a whole variety of sizes of 8 stone and smaller particles. The -- it's not a -- it's just '9 not an accumulation of all one-inch rock or something like 10 that. It seems to be a unscreened aggregate, I suppose you 11 could call it, crushed rock primarily, in w h i c h all p a rticle 12 s i z e s . 13 Q. Are there any particle sizes that you saw in the 14 ballast that are the same as the particle sizes for the 15 bentonite that you use in your laboratory? 16 A. Well, t h a t .would be very hard to say, because 17 there's been several years have elapsed and the immediate top 18 surface has been rained on and lots of weather, and those 19 very fine particles that are right at the -- p r etty close to 20 the surface will have -- will have washed away, blown away. 21 Q. Nov/, compare the size though, sir, of what you've 22 observed at Sturgeon of the material in the passing track and 23 in the main line track to the particle size of the bentonite 24 that you used in your laboratory? 1 A. The particle size of the bentonite in the 2 laboratory is very, very small, it's very fine. ' 3 Q* Is it finer than sand? 4 A. Oh, yes, yes, m u c h finer than sand. 5 Q. Sir, would the ben t o n i t e tend to fill in air 6 spaces? 7 A. Well, the w a y bentonite would be used in a 8 situation like that in my laboratory I would use it as the 9 dry material, because I want to pour it out of a cannister 10 right onto the spill. If one is using it for packing, and it 11 is -- then it would be m a d e into a slurry, prob a b l y with 12 water, I assume w i t h water, so that it could be p oured and 13 the water tends to c a r r y it down into the interstices, 14 crevices, and so forth among -- so that it would tend to fill 15 the spaces, and if you want it to go a long ways through the 16 rock, you'd use a f a irly large amount of water. If you just 17 wanted to make a coating, you'd use a fairly thick slurry, 18 and so I would a s s u m e -- I have no wa y of knowing just what 19 mix they used, but for a purp o s e like that, I would assume 20 that it was a rather t h i n -- 21 MR. CARR: O b j e c t i o n to assumption, your Honor. 22 THE C O U R T : O b j e c t i o n s u s t a i n e d . 23 Q. Mow, would a be n t o n i t e sealer in your opinion, sir, 24 tend to fill those 1 MR. CARR: Objection, leading question, Your Honor. 2 THE COURT: W o u l d you rephrase it. It is leading. ^ 3 Q. What would a b e n t o n i t e sealer tend to do in terms 4 of the ballast? 5 A. I just p o i nted out that it would fill all the 6 crevices in the ballast, all of the spaces in between the 7 larger particles of the ballast. 8 Q. Mow, what, sir, w o u l d that tend to do in terms of 9 the movement of anything up through that ballast? 10 A. Well, b e c ause of the very, v e r y large surface area 11 of those very small particles, it w o u l d tend to slow, I would 12 expect that it v/ould tend to slow any m o v e m e n t t h r o u g h that 13 space. 14 MR. HEINEMAN: On e moment, Your Honor, please. 15 THE COURT: Sure. 16 Q. Now, Dr. Dost, I'd like you to a ssume that the 17 following testimo n y was given in this case by Dr. Wilson. 13 First of all, on May 16th, Page 174. Question: And you also 19 know that the -- over the years if there's a half life of 20 several years, I think you p o i nted out in another document 21 that it's -- yes, you did, three to five years is the half 22 life? Answer: Well, here I use 6 months to 3 years. I see 23 in these calculations I used 3 m onths to 3 years. 24 And further that he te s t i f i e d on M a y 17th, Page 4. 1 Question: Now the suggestion or the calculation there that a 2 half life is three to five years again, that is similar to 3 what you found yesterday in another exhibit that we 4 discussed. I don't have the number right now in front of me, 5 but it was the same calculation, was it not? Answer: I 6 think the one we discussed yes t e r d a y I a s s umed it was a 7 little bit lower than that with an upper limit of about three 8 years, but I think X used the range of about 3 months to 3 Q -S years in those other calculations. 10 Now, sir, based upon that testimony, do you recall 11 Mr. Carr discussing this subject with you w hen you were on 12 cross-examination? 13 A. Y e s , I remember t h a t . 14 Q. And do you recall him d i scussing w i t h you that 15 Monsanto themselves said that the half life was three to five 16 years? 17 A. I remember something of that sort, yes. 18 Q. Nov/, if you're to assume that what I've read you is 19 what Monsanto's tes t i m o n y has been on that subject, does that 20 testimony indicate to you, sir, that Mo n s a n t o ' s position is 21 that the half life is three to five years? 22 A . N o , sir. 23 Q. Is three m onths a shorter time than three years? 24 A. Yes. 22 1 Q v Now, how^ does a three m o n t h half life relate to the 2 information that you have with respect to data from animal 3 experiments? 4 A. Well, the data from animal e x p e r i m e n t s in most 5 cases runs 30 days between -- either w a y from 30 days. 6 Q. I'm not sure I understand w h a t you m e a n by either 7 way from 30 days. 8 A. I'm sorry, that's a very imprecise answer. In some 9 cases half times of less than 30 days have been found. There 10 have been a few instances where it seems to be in excess of 11 30 days. 12 Q. Now, do you recall being a s ked about the M c N u l t y 13 study, sir? 14 A. Yes, I do. 15 Q. By Mr. Carr in hisc r o s s - e x a m i n a t i o n ? 16 A. Yes. 17 Q. Do you have it there, sir? 18 A. Yes, I do. 19 Q. Now, do you recall Mr. Carr c r o s s - e x a m i n i n g you 20 with respect to your s u ggestion or your cita t i o n of that 21 study as reflecting a half time for TCDD in animals shorter 22 than a year and a study actu a l l y stating that it's a one year 23 half life? 24 A. Y e s , I remember t h a t . 23 1 Q. ' You remember t h a t r sir? 2 A. Yes. 3 Q. Now, does the -- does the doc u m e n t itself state a 4 one year half life? 5 A. The document makes that statement, yes. 6 Q. All right, sir. W h a t does the data in the document 7 tell you? 8 A. Well, the data itself tells me that the half time 9 is in fact much shorter than that. 10 Q. Would you explain your posi t i o n to the jury please? 11 A. Well, I -- when I was asked about that, I 12 remembered the paper, and I remembered what I had concluded 13 about it. I had not remembered that it was based on my own 14 calculations of his data, and I b ecame a little conf u s e d at 15 about that point. My -- the p r o cess that I went t h r ough in 16 making a determination was to look at the a mount of TCDD in 17 adipose tissue and in the liver, try to e s t i m a t e the amount 18 that was actually absorbed from the orig i n a l one m i c r o g r a m 19 per kilogram oral dose. I made a s s u m p t i o n s of a ten percent 20 fat content in the monkey. Monkeys tend to be rather lean. 21 I also made an assu m p t i o n b ased on a 20 percent fat 22 content, and I used a figure of two and a half p e r cent of 23 body weight for the liver, for the liver weight, percent of 24 body weight. I also made the a s s u m p t i o n that 60 percent of 24 1 the mate r i a l that was taken in was actu a l l y absorbed. Nov/, 2 Dr. McNulty unfortunately measured the concentration of TCDD 3 in the feces. He didn't carry t h e -- go through the very 4 simple further step of determining actually how much of the 5 original TCDD emerged in the feces, and since he hasn't 6 described the body w eight of this animal, and v/e don't know 7 how much of fecal material was actually obtained, I have no 8 way of obtaining direct information about the amount of TCDD 9 that did not get absorbed, so I made an assumption of 60 10 percent, w hich is quite conservative. I would expect that in 11 reality that figure should be closer to 80 percent. 12 Q. Sir, excuse me for interrupting you. I'm not sure 13 that I understand what y ou're talking about in terms of the 14 difference between the c o n c e n t r a t i on and the amount. How is 15 a study like that done? 16 A. Dr. McNu l t y took a fat b i o p s y v e r y early in the 17 time course of this experiment, and he compared the fat, the 18 TCDD content in that fat at that time, at the beginning early 19 in the experiment with the TCDD content at the end of the 20 experiment. Now, in my view that's not an appropriate 21 procedure, b e c ause early in the experiment the T CDD in the 22 body has not yet come to equilibrium. There will be -- if 23 the data from every other e x periment can be used as an index 24 it will be very, very large amounts in the liver that will 25 1 have not yet equilibrated with the fat. There will be amounts 2 in other tissues that will have not yet equilibrated with 3 fat, so it's really not an appropriate -- it's not an 4 appropriate comparison. 5 W hat is necessary is to relate how m u c h went into 6 the animal in the first place with how much is still in the 7 animal at the end of that two year time period. 8 Q. N o w , is there any way to measure what has gone 9 through the animal and not been absorbed? 10 A. If he had -- he measured the c o n c entration of TCDD 11 in the feces. If he had then taken the very simple next step 12 of d e t e r m i n i n g the total amount of TCDD that emerged in the 13 feces, then we would have been able to use that information, 14 simply subtract it from the original dose. U n f o r t u n a t e ly , 15 that information, he did not use that information, and there 16 isn't enough information in the paper to determine that, 17 because among other things, he hasn't told us what the weight 18 of the m o n k e y is. It's an adult, female Rhesus and -- but we 19 don't really know how big it was, and it would be impossible 20 to estimate even on that basis without knowing h o w m u c h fecal 21 material was passed, because the animal may have beco m e ill 22 soon after the experiment began and eaten relatively little. 23 That w ould have an influence. We have no way of knov/ing 24 a c t u a l l y hw m uch material was lost in the feces. I started 26 1 to make an estimate of this and realized there was simply 2 a b s o l u t e l y no information that would permit it. 3 Q. All right, sir. What -- based upon the information 4 that's in the paper, what sort of a calculation can you make? 5 A. Well, I have assumed that at the end of two years 6 that 70 percent of the TCDD in the body is in the fat and in 7 the liver. I would expect it to actually be higher than 8 t h a t , but I prefer to be somewhat conservative. As I told 9 you, I made a calculation that the animal, ten percent of the 10. animal's body weight was fat in one case and in other case 20 11 percent of the body weight was fat. 12 The numbers that I arrived at were that there was 13 in the case of an animal if the liver was -- or the fat was 14 ten percent of body weight, the amount remaining w o u l d be on 15 the order of two and a half percent of the a b s o r b e d dose. If 16 it was 20 percent fat, that would appro x i m a t e ly d ouble it, 17 because the liver did not make an extensive contribution. The 18 figure would have been slightly less than five percent. And 19 in the case of two and a half percent, that would m e a n a half 20 time of something on the order of 130 days, slightly over 21 four months. If it was five percent, the half time would be 22 on the order of five months, a little over five, if I 23 remember correctly. 24 Q. So what is it that you're describing now, the half 27 1 time of what? 2 A. The half time of TCDD removal from the body, that 3 is, the amount of time that it takes for half of the material 4 that went into the body to emerge from the body, and that's 5 based on the amount remaining in the body, and that half 6 time, so that's a -- okay, the half time of residence. 7 Q. Now, does that --- is that including or apart from 8 the amount that went through the monkey in the food, emerged 9 in the feces and was never absorbed at all? 10 A. T h a t 's correct. I've taken that into account. If I 11 had included the total, the one micro g r a m per k i l o g r a m dose, 12 then that half time would be quite a bit shorter. It v/ould 13 be down on the order of one and a half percent or so, that 14 is, the total remaining would have been one and a half 15 percent and the half time would have been down on the order 16 of, if I remember, two and a half months, something like 17 t h a t . 18 Q. Well, what -- based upon your c a l c u l a t i o n s what is 19 the half time of dioxin in -- what do you figure, in the 20 adipose tissue? 21 A. Well, in adipose tissue, per se, if w e 're only 22 talking about adipose tissue, then Dr. McNulty's estimate is 23 as good as any other. The p r o b l e m is, of course, that as 24 this animal became very ill after about the second month the 28 1 concentration of TCDD in the fat became very, very high, 2 which is not surprising, b e c a u s e the m a t e r i a l would tend to 3 stay in the fat even when fat is being lost, and so it's hard 4 to tell whether that really has meaning. 5 If the dose had been much smaller and the animal 6 had not become ill, then maybe that would have some utility, 7 because I don't know how fat the animal was at the beginning 8 of the experiment and whether it gained less or more fat. The 9 paper states very clearly that the animal recovered 10 completely as far as they're able to tell. Let's see. 11 Because the monk e y began to gain weight three m o nths after 12 the dose and has been h e a lthy since. How, that's the 13 statement that he made. T hat's after two years, so I don't 14 really know what the r e spective fat cont e n t s at those 15 different times was, and that w o u l d have an impact, too. 16 So the only thing that I can really make a 17 reasonable estimate about is the amount that was a c t u a l l y 18 absorbed by the animal, and m y esti m a t e of the a m ount that 19 remained at the end of that two year period. So the adipose 20 tissue in the beginning doesn't have a bearing on my 21 c a l c u l a t i o n . 22 Q. All right. Now, b a sed upon the result of that 23 calculation, what is the half time in the m o n k e y on the data 24 that you can see in the paper? 29 1 A. I 'd say 130 days, which is slightly over four 2 months in this monkey. Unfortunately, this is one animal. 3 Q. And what was it that Mr. W i l s o n calculated as the 4 lower end of a half life? 5 A. Three months. 6 Q. Can you account for a di f f e r e n c e between the three 7 and the four? t 8 A. Well, with i n these c i r cumstances I don't know. Dr. 9 Wilson, I think, was basing his calculations just on existing 10 information in the literature and trying to reach some kind 11 of a rough estimate. As far as this pa r t i c u l a r animal is 12 concerned, given the v a r i a b i l i t y among animals, there is no 13 difference between three and four months. 14 Q. All right, sir. Dr. Dost, do you have Plantiff's 15 Exhibit 1646 in front of you there, sir? 16 A. Yes. 17 Q. Would you ide n t i f y that for the jury again please? 18 A. This is an a b s t r a c t of a report by Dr. Poiger and 19 Dr. Schlatter from Switzerland. I b e l i e v e it is an abstract 20 of the report that was g i v e n at the d ioxin c o nference in 21 Germany. Was that earlier this year? 22 Q. Now, do you recall Mr. Carr discussing this 23 document w ith you, sir, on your cro s s - e x a m i na t i o n ? 24 A. Yes. 30 1 Q. And what was your reaction with respect to 2 accepting the results of this as set forth in this abstract? 3 A. I guess on the b a s i s of w h a t ' s in the abstract I 4 didn't think there was enough information to draw a 5 conclusion. 6 Q. W h y did you feel that way, sir? 7 A. Well, I have no i n f o r m a t i o n about the body burden 8 of TCDD in this individual prior to the experiment, I have no 9 idea how much TCDD was already in his tissues, in his fat. 10 That would have that w ould have some impact on the rate at 11 which TCDD might emerge. I have -- what he has -- what he 12 has provided is good information on the amount that was 13 absorbed from the gut. In this case there is enough 14 information to tell that, but I'm v e r y concerned about the 15 p r o blem of isotope d i l u t i o n in b o d y fat knowing nothing about 16 about the c o n centr a t i on at the beginning, the co n c e n t r a t i on 17 of TCDD at the beg i n n i n g prior to the ingestion of the TCDD. 18 Q. Now, sir, the -- I'm i n terested in this -- your 19 discussion of this b a c k g r o u n d level. What do you m e a n by 20 that? 21 A. Well, TCDD has been found in the adipose tissue of 22 very large number of individuals who have no history of 23 exposure, and it would be fair to assume that there's a good 24 chance at least that Dr. P o iger even in Switzerland has T CDD 31 1 already in the -- in the fat, five parts per trillion, 2 whatever, we have no way of knowing. At the -- I think that 3 this would have a considerable effect on the rate at which 4 TCDD is i n c o r p o r a t e d . 5 We would like to assume in a rapidly mixing kind of 6 compartment that that labeled TCDD would essentially follow 7 the -- follow the TCDD that is already there, but this is not 8 necessarily a very rapid mixing compartment, and he -- he 9 took fat biopsies at ten days and 69 days after -- after the 10 -- after he ingested the material. I'm not really confident 11 that at ten days mixing was complete. In other words, the 12 material may not have all been incorporated in body fat by 13 that time to the extent that it is going to b e . W e 1ve 14 discu s s e d equilibr i u m in the past, w h i c h is the process by 15 w hich everything finally gets where it's going to end up, and 16 he also has based this on a deter m i n a t i on of three parts per 17 trillion of the labeled material in his fat at ten days and 18 2.8 parts per trillion !at the end of 69 days, and I really 19 have some question whether -- I have a lot of experience with 20 radioisotopes, and I don't think that I could tell really the 21 diffe r e n c e betw e e n three and -2.8 in an experiment of this 22 sort, so there needs to be a good deal of other information. 23 This experiment is not complete is what I guess I'm trying to 24 say. 32 1 Q. What -- does the amount of body fat have any 2 effect? 3 A. Well, it would have an effect because that makes a 4 larger -- if there's a lot of body fat andat 25 to 30 5 kilograms of body fat -- I don't know what Dr. Poiger 6 weighs. It was Dr. Poiger who ingested this material. I 7 don't know what his weight his, but that is -- it appears to 8 me that his -- he may be a fat man. I'm not sure. That's a 9 lot of fat for a normally-- for a normal sized individual. 10 And so there's a great deal of material for this to dilute 11 in, and that's going to perhaps make the m e a s u r e m e n t s of 12 concentration in fat even less precise. 13 Q. Do you -- have you met Dr. Poiger? 14 A. No, I have never met Dr. Poiger. 15 Q. One of the things I notice is in the s e cond line he 16 has a statement of the total dose, correct, sir? 17 A. Oh, yes. 18 Q. And that's how much? 19 A. Oh, well, that's one hundred -- that would tell me 20 his body weight, 105 nanograms he administered a single dose 21 of 1.14 nanograms per kilogram. It would seem to me that his 22 weight is slightly under a 100 kilograms,andif that's the 23 case, his body fat is -- is at least25percent, whichis 24 substantial. 33 1 That's a very substantial dose as well- I'm a 2 little surprised, because that's in excess of what we 3 consider to be a no effect dose. 4 Q. The 105 is? 5 A. 1*14 nanograms per kilogram that's .00114 6 micrograms per kilogram. Our -- the no effect dose that we 7 generally settle upon is .001 micrograms, so it's slig h t l y in 8 excess of the no effect dose. I question whether it will 9 cause Dr. Poiger any harm, but nonetheless it doesn't conform 10 with our convention as to a no effect dose. 11 Q.' How long have you been seeing papers b y Dr. Poiger 12 and Schlatter in the field of TCDD? 13 A. I think since the mid seventies. I w o u l d want to 14 go back and check, but they have been active in this field 15 for a long time. 16 Q. They being -- 17 A- Dr. Poiger, Dr. Schlatter, there's -- there are two 18 or three others that are also in that group. 19 Q. What's the nature of the work that t h e y ' v e done, 20 sir? 21 A. Primarily on the pharmacokinetics, if you will, 22 that is what happens to TCDD when it -- w hen it -- 23 pharmacokinetics and metabolism, what happens to T C D D and 24 what chemical reactions, what physical interactions befall 34 1 TCDD once it enters the body. 2 Q. And they've been co n d u c t i n g these e x p e r i m e n t s on 3 what, sir? 4 A. On rat's, guinea pigs, dogs. I would not be at all 5 surprised other species. I don't remember at the moment. 6 Q. And would you say -- how long w o u l d you say he's 7 been doing this? 8 A. I'm sure for ten years. 9 Q. And when did Kociba p u b lish the no o b s e r v e d effect 10 level in rats? 11 A. That paper that was a lon g - t e r m study. It was 12 published in 1978. 13 Q. And that no observed effect level was what, sir? 14 A. .001 micrograms per kilogram per day. 15 Q. And did Dr. Poiger a d minister to himself a dose of 16 105 nanograms? 17 A. Yes, dissolved -- this is TCDD labeled w i t h 18 radioactive hydrogen. I think I d i s c u s s e d the l a b e l i n g with 19 radioactive hydrogen at one time during m y d irect testimony. 20 He ingested that dissolved in corn oil. 21 Q. Now -- 22 MR. CARR: May I approach the bench, Your Honor. 23 THE COURT: Yes, you may. 24 (At this time a c o nference was had at the b e n c h out 35 1 of the hearing of the jury.) 2 MR. CARR: I object to this testimony that's just 3 come out and ask the jury be instructed to disregard it. 4 There is nothing in the document 1646 that says Dr. Poiger 5 a dministered this to himself. This is ob v i o u s l y relating by 6 Mr. Heineman, two of them relating something that they have 7 been told. It is hearsay and it's not in that document. 8 MR. HEINEMAN: Your Honor, I think the document 9 demonstrates the dose that he's got. 10 THE COURT: Let me see it. I don't have it. 11 MR. CARR: It d o e sn't d e m o n s t r a t e that it was given 12 to Dr. Poiger. 13 THE COURT: Let me have the document. I don't have 14 it in front of me. Y o u ' r e o b j e c t i n g to the part about it 15 being him taking it? 16 MR. CARR: Yes. 17 THE COURT: It d o e s n ' t say he took it. It says a 18 male volunteer. 19 MR. HEINEMAN: It does say m a l e volunteer, doesn't 20 it? He is the male volunteer. 21 THE COURT: W h e r e is that, what's the basis for 22 that? I assumed it w a s in that doc u m e n t w h e n I heard it. 23 That was the context in w h i c h it sounded to me. What is your 24 basis for that information? 36 1 MR. HEINEMAM: What is my basis for that? 2 THE COURT: What's his basis for saying it was in 3 fact Poiger himself. 4 MR. HEINEMAN: I think he knows that. 5 MR. CARR: He wasn't there. How could he know 6 except what he's been told? 7 MR. HEINEMAN: He has been told that, but I'm sure 8 he has and he knows it. 9 MR. CARR: He knows he's been told. He doesn't 10 know that. He w a s n ' t there, I'm sure, when this male 11 volunteer took that TCDD, and I'd like to have the jury 12 instructed that there's no evidence in this case that Dr. 13 Poiger took this material. 14 MR. HEINEMAN: Before you do that, can I consult 15 with Mr. Nassif for a minute, because I think -- it strikes 16 me there's some evid e n c e that this is so. 17 THE COURT: Sure. Go ahead. 18 MR. HEINEMAN: Your Honor, Joe's recollection is 19 that Mr- Carr asked G eorge Roush something on this subject, 20 and R oush testifie d that there was somebody who had 21 administered it to himself, but Joe's recollection was that 22 he did not identify it as Poiger, that this experiment that's 23 being reported on here has been testified about, but he's not 24 at all clear that Poiger was the one as having been 37 1 identified. 2 THE COURT: Then your objection ought to be 3 sustained. 4 MR. CARR: Yes, Your Honor. 5 THE COURT: I will so admonish the jury. Why don't 6 we take a short break? 7 MR. CARR: With this regard, there's no evidence 8 that Dr. Poiger administered this to himself. 9 THE COURT: To disregard all those statements in 10 this r e g a r d . 11 MR. HEINEMAN: Your Honor, when you say d i s regard 12 all those statements what are you talking about? 13 THE COURT: All statements that -- it has b een said 14 at least three times that Poiger administered it to himseif 15 and the discussion s about b o d y weight, w h i c h were obtained 16 this, etc., in terms of Poiger himself is what I'm saying 17 should be disregarded. 18 MR. CARR: Yes. 19 THE COURT: Cause it's been m e n t i o n e d about three 20 different times in dif f e r e n t contexts, so I'm telling them to 21 disregard any of those references. 22 MR. HEINEMAN: Body weights calculation was not 23 based upon knowledge of Poiger himself. 24 THE COURT: But when he talked about the body weight 38 1 calculation he talked about it as being Poiger's calculation, 2 I mean Poiger's weight. He didn't know whether he was thin 3 or medium or whatever. 4 MR. CARR: All the Court is saying is that the jury 5 is instructed to disregard these statements that Dr. Poiger 6 administered this to himself. 7 THE COURT: Yes. 8 (The following proceedings were had in open Court.) 9 THE COURT: Ladies and gentlemen, you are ordered to 10 disregard any statements by the witness that Dr. Poiger 11 administered this to himself. You may proceed. 12 MR. HEINEMAN: Did you say you wanted -- 13 THE COURT: Yes, I did, didn't I? We'll take a 14 short break at this time. 15 (At this time a short recess was taken.) 16 17 (The following proceedings were had in open Court.) 18 Q. Doctor, directing your attention again to 19 Plantiff's Exhibit 1646, the -- how does the exhibit identify 20 the recipient of t h i s - 105 nanograms? 21 A. It said the material was ingested by a m a l e 22 volunteer. 23 Q. Now, this male volunteer, sir, how does this 105 24 nanogram dose relate to the maximum possible dose which you 39 1 have calculated with respect to the Sturgeon population? 2 A. Okay. The dose that I ca l c u l a t e d related to the 3 application of soil from the area under the tank car, as I 4 recall, ten grams of soil applied to the skin, and we did -- 5 we related the difference between that and the no effect dose 6 that we use of .001 micrograms per kilogram as a difference 7 of 222 fold, that is, the no effect dose is 222 fold higher 8 than this dose that we would get by rubbing the material on 9 the skin. This dose was 1.14 nanograms per kilogram, so it's 10 14 percent higher than the no effect dose, so the d i f f e r e n c e 11 would be 14 percent higher than 222, let's say, something on 12 the order of 250 fold difference. 13 Q. Thank you, sir? 14 MR. H E I N E M A N : T hat's all the q u e s t i o n s I have, your 15 H o n o r . 16 THE COURT: All right, Mr. Carr, do you have any 17 recross? 18 MR. CARR: Yes. 19 RECROSS E X A M I N A T I O N 20 BY MR. CARR: 21 Q. Doctor, if you would refer to P l a n t i f f ' s Exhibit 22 908 if you still have it there, sir. 23 A. I have it now, yes, sir. 24 Q. Now, when you te s t i f i e d referrable to the 40 1 information on Page 173, -- 908, by the way, is the Moses 2 Selikoff study of the workers at Nitro, is it not, sir? 3 A. Yes, sir. 4 Q. And you miss p o k e when you said this con t r a di c t e d 5 what Dr. Carnow testified to as to the symptoms shown by the 6 workers at Nitro upon his examination of those workers, did 7 you not so misspeak? 8 MR. HEINEMAN: Excuse me, counsel. May counsel 9 approach the bench, Your Honor? 10 THE COURT: Sure. 11 (At this time a c o n f e r e n c e was had at the b e n c h out 12 of the hearing of the jury.) 13 MR. HEINEMAN: As I recall, Your Honor, at Mr. 14 Carr's request this m atter was -- at his o b j e c t i o n it was 15 ordered stricken, and I m a y be thinking about the wro n g 16 t h i n g . 17 MR. CARR: Y ou're thin k i n g about som e t h i n g else. 13 MR. HEINEMAN: Was the jury instructed to disregard 19 this subject? 20 THE COURT: X don't think so. 21 MR. CARR: Not at all. It wou l d clear it up. 22 MR. HEINEMAN: T h a t 1s r i g h t . . 23 MR. CARR: I want it cleared up more. He went into 24 it, and he cleared up w h a t he said, and I want to go into it 41 1 more and clear it up more. 2 MR. HEINEMAN: Your Honor, my objection would be 3 that what was done on that subject with this witness at that 4 time was done at the request of Mr. Carr and upon the order 5 of the Court. 6 THE COURT: Well, it was done because of his 7 precipitation. 8 MR. HEINEMAN: Mr. Carr agreed with what should be 9 done with the witness at that time, and the Court ordered it 10 done, and it was done. 11 THE COURT: Okay. 12 MR. HEINEMAN: I object to his going into it any 13 further at this time. 14 THE COURT: I don't think that of itself precludes 15 him from going into it. I don't think that -- just as having 16 parts of a deposition read, I don't think that precludes him 17 from consideration of it on recross. I w o u l d not agree with 18 you. Objec t i o n is overruled. 19 (The following p r o c e e d i n g s were had in open Court.) 20 Q. Now, could you answer my question, Dr. Dost? 21 A. No, sir, I m i s s p o k e w i t h reference to the wa y I 22 described this information. 23 Q. And you don't agree that you m i s s p o k e in saying 24 that this study contradicts Dr. Carnow's findings? 42 1 A. Mo, sir. 2 Q. In point of this fact, this study in no way 3 contradicts what Dr. Carnow said about their symptoms and 4 complaints, does it, sir? 5 A. I think it does, sir. 6 Q. Dr. Dost, you were advised that Dr. Ca r n o w 7 testified that the people that he examined had various 8 symptoms and problems. Do you recall that, sir? 9 A. Yes. 10 Q. He examined p e o p l e b o t h w ith and with o u t 11 chloracne. Do you know that, sir? 12 A. Yes. 13 Q. And he tes t i f i e d as to the symptoms that all of the 14 Nitro w o r kers had w i t h o u t respect to whether they had 15 chloracne or not, did he not, sir? 16 MR. HEINEMAN: Objection, Your Honor. May counsel 17 a p p r o a c h the bench? 18 THE COURT: Sure. 19 (At this time a c o nference was had at the b e n c h out 20 of the hearing of the jury.) 21 MR. HEINEMAN: I object to that question as 22 certainly mischaracterizing what Dr. Carnow testified to. He 23 didn't t e s tify wit h respect to all the Nitro workers. He 24 testified to 43 1 MR. CARR: All the Nitro workers that he examined. 2 MR. HEINEMAN: 125 plaintiffs on whose behalf he 3 made examinations, and so I object to the form of the 4 question. 5 THE COURT: Could you rephrase that. 6 MR. CARR: I will. 7 (The following proceedings were had in open Court.) 8 Q. Dr. Dost, you do understand that Dr. Carnow's 9 testimony in this case as to the Nitro workers was with 10 respect to the 125 workers at Nitro that he examined and that 11 he t estified as to their complaints without regard to whether 12 t hey did or did not have chloracne. You u n derstand that, 13 sir? 14 A. I see what you're asking me. I un d e r s t a n d that, 15 yes. 16 Q. You didn't understand that earlier then, is that 17 correct, Dr. Dost? 18 A. I did not know the differentiation w i t h respect to 19 chlo r a c n e in those patients. 20 Q. Mr. Heineman didn't advise you that Dr. C a r n o w 21 t e s t i m o n y that he related to you did not purport to make a 22 differentiation between the complaints of the chloracne 23 workers and the no chloracne workers, did he, sir? 24 A. No, I think that was an assumption that I made. 44 1 Q. Now, Dr. Dost, you discussed this te s t i m o n y or this 2 line of testimony with Mr. Heineman before you took the 3 witness stand on -- well, not only before you took the stand, 4 but before you took the witness stand again here on redirect, 5 did you not, sir? 6 A. We discussed it, yes. 7 Q. And you knew he was going to ask you, he advised 8 you, and you discussed with him what he was going to ask you 9 about, did you not, sir? 10 A. Yes. 11 Q. Every single point that you have t e s t i f i e d here 12 today and last week has been on points that you have 13 disc u s s e d with Mr. Heineman prior to your testimony, isn't 14 that correct, sir? 15 A. Yes. 16 Q. And did you -- he did not advise you, did he, sir 17 that the Dr. Carnow testimony was that the large n u m b e r of 18 complaints that these people had at Nitro they had whether 19 they were exposed to -- whether -- they had whether they did 20 or did not have chloracne. He didn't advise you of that, did 21 he, sir? 22 A. No, I don't beli e v e so. 23 Q. No. Now, Doctor, if all of the workers have or a 24 large perce n t a g e of the w o r kers have the same symptoms or the 45 1 same complaint or the same finding, isn't that an indication 2 that all of those workers have been affected by whatever 3 substance they may have been exposed to in the same fashion? 4 A. On the basis of this paper, I would say no. 5 Q. Now, Doctor, I didn't ask you on the b a s i s of this . 6 paper. I asked you a question as you know from a 7 toxicological viewpoint, you know the answer to. Isn't it a 8 fact that you 'find a large group of p e o p l e having the same 9 abnormality, having the same symptom or having the same 10 complaint or having the same finding, that you as a 11 toxicologist can deduce that a chemical sub s t a n c e that they 12 have been exposed to in common could be causing that same 13 c o m p l a i n t , finding, or abnormality? 14 MR. H E I N E M A N : Objection, your Honor. M a y counsel 15 approach the bench? 16 THE COURT: Sure. 17 (At this time a conference was had at the b e n c h out 18 of the hearing of the jury.) 19 MR. HEINEMAN Your Honor, that is -- I o bject to 20 the question as being m i sleading and as not p r o p e r l y 21 representing the evidence that Dr. C a r n o w has t e s t i f i e d to. 22 What Mr. Carr is suggesting is that when you're talking about 23 percentages of the people with the same complaint, yo u ' r e 24 talking about the same people, and that's not accurate. In 46 1 other words, the people that have Complaint A may only then 2 also have D, and the people that have Complaint B m ay have 3 Complaint G as well. In other words, you don't have the same 4 people having all of the same complaints and that's what he's 5 suggesting that Carnow's frequency distribution shows. 6 MR. CARR: I didn't say anything about Carnow's 7 frequency distribution. I'm asking him as a toxicologist 8 that he doesn't know that what I said is correct. I'll get to 9 Carnow's in a moment. 10 MR. HEINEMAN: I object to it, b e c a u s e it is 11 misleading because it comes right on the heels of talking 12 about what Carnow is saying a b o u t these people. He is 13 implying to this witn e s s that that's what Carn o w ' s f re quency 14 distribution shows, and I o b ject to it, b e c a u s e . i t d oe s n ' t 15 show that. 16 THE COURT: I don't think it does so imply. 17 Objection is overruled. 18 (The following p r o c e e d i n g s w e r e had in open Court.) 19 Q. W o u l d you answer my que s t i o n please. Dr. Dost? 20 A. I don't know w h e t h e r those effects differ from 21 those in the general p opulation. 22 Q. W o uld you read m y q u e s t i o n to h i m again. W o u l d you 23 answer that question, Dr. Dost. 24 (Court reporter read back the last question.) 47 1 A. I would say that it is possible. 2 Q. Doctor, as a t o x i c o l o g i s t that goes in to find out 3 what poisons are doing and the effects of it, you as a matter 4 of fact, look at that as one criteria, do you not, sir? 5 A. As one criteria, yes. 6 Q. And if you find that a group of p e ople have an 7 abnormality, for instance, on a laboratory test, that a large 8 percentage of the group of people that have been exposed to a 9 have an abnormality, you can deduce from that that the 10 chemical may have c aused that abnormality, can you not, 11 Doctor? 12 A. If I can a s sume that t h e y have been exposed, it is 13 possible, yes. 14 Q. No, if you know they have been exposed, you been 15 told they been exposed to the chemical, the evidence is that 16 they been exposed to the chemical, and they have in common an 17 abnormality that the p o p u lation, that same p e r c e n t a g e of the 18 population in general do not have, you can deduce from that 19 the chemical that you been told they were exposed to has 20 caused that abnormality, can you not, sir? 21 A. It would cause me to investigate whether that 22 chemical is r e s p o n s i b l e , y e s . 23 Q. And after y o u ' v e i n v e s t i g a t e d and what you have 24 found, Doctor, is as I've told you, that the people have all 48 1 been exposed to the chemical in question, and they all have 2 the abnormality that is not found in those percentages in the 3 general population, can you not or would you not as a 4 toxicologist conclude that that chemical exposure may well be 5 causing the abnormality? 6 A. Well, you use the term may, and I would use the 7 term it may, yes. 8 Q. Doctor, the Moses Selikoff study deals only with 9 what is the difference between the complaints of those 10 workers at Nitro who have chl o r a c n e and those w o r kers at 11 Nitro who have no chloracne, isn't that correct, sir?. 12 A. That's correct. 13 Q. It has n o t hing to do at all with whether or not the 14 workers have a com p l a i n t or a finding or a s y m ptom without 15 respect to chloracne, does it, sir? 16 A. No. 17 Q. What it tells you and what it tells e v e r y b o d y that 18 except for chloracne all of these workers have the same 19 complaints, the same co m p l a i n t s of m uscle pain, insomnia -- 20 strike that. There is a d i f f e r e n c e between the w o r k e r s with 21 and without chloracne insofar as m u s c l e pain, insomnia, 22 decreased libido, sexual dysfunction, that is d i f f i c u l t y w ith 23 erection or ejaculation and e y elid cyst, there is indeed a 24 difference, a stat istical d i f f e r e n c e b e t ween those w i t h and 49 1 without chloracne, correct, sir? 2 A. Yes. 3 Q. But for the p e ople having complaints, and of course 4! -- strike that for a moment. That would suggest, would it 5 not, sir that those with chloracne have been exposed to 6 something that's causing them more problems of muscle pain, 7 insomnia, decreased libido, sexual dysfunction, and eyelid 8 cysts than as being caused to those people who have no 9 chloracne? 10 A. It would suggest that they have a higher dose of 11 whatever substance is responsible. 12 Q. Could you answer any question please, sir? 13 A. You said something else. 14 Q. They are having these problems in addition to and 15 over above the chloracne, aren't they, sir? 16 A. That's what this paper states, yes. 17 Q. Doctor, insofar as the problems that the Nitro 18 work e r s are having with joint pain, abdominal pain, nausea, 19 vomiting, diarrhea, constipation, weakness, fatigue, 20 irritability, n e r v o u s n e s s , depression, n u m b n e s s , v e r t i g o , 21 lightheadedness, or personality change, there is no 22 difference between those having chloracne and not having 23 chloracne, isn't that correct, sir? 24 A. That's correct. 50 1 Q. And, Doctor, if there were large n u m bers -- w ere 2 you told by Mr. Heineman that large numbers of these workers 3 at Nitro, of the 125 he examined, large p e r c e n t a g e s had such 4 complaints? Were you told by Mr. Heineman that -- 5 A. Yes. 6 Q. Sir? 7 A. Yes. 8 Q. And if those complaints are greater than as has 9 been testified to by Dr. Kilgore in this case, if those -- 10 and I won't go through the same p e r c entages as I did w i t h Dr. 11 Kilgore -- if those percentages are greater than in some 12 instances, greater than what the general p o p u l a t i o n w o u l d 13 have, that v/ould be significant, woul d n ' t it, Dr. Dost? 14 A. Yes. 15 Q. It v/ould indicate that those pe o p l e at Nitro, that 16 125 people or the percentage of those people having these 17 complaints may indeed be having these co m p l a i n t s b e c a u s e of 18 the chemicals to which they're exposed, isn't that correct, 19 sir? 20 A. That is a possibility. 21 Q. Doctor, that is more than a possibility. It is a 22 probabilities, is it not, sir? 23 A. Well, you use the term may, and I v/ould use that 24 term. 51 1 Q. Yes, and you said possibility, but I'm saying now 2 it's more a possibilities, it's a probability, isn't it, sir? 3 A. It may be the case. 4 Q. Doctor, not just ma y be. It is a probability, 5 isn't it, sir? 6 A. It depends on the dose response. . 7 Q. Doctor, the response you have heard, you know 8 they're exposed, you know they been working in this plant, 9 you know the levels while you testified incorrectly as to the 10 levels, and I'll get to that in moment, you k n o w the levels 11 to which they've been exposed, you know the chemicals 12 involved, you know that indeed these complaints, if the Nitro 13 workers are not lying, if they're not p u t ting on, if the 14 chemical workers are telling the truth as to w h a t ' s b o t h e r i n g 15 them in those percentage levels, you know that it is v ery 16 probable that it's the chemicals that t h e y b e e n w o r k i n g w i t h 17 and to which they been exposed that have caused these 18 c o m p l a i n t s , i s n 't that c o r r e c t , sir? 19 A. Yes, if those differences exist. 20 Q.' Yes. And the Moses Selikoff study in no way 21 contradicts what Dr. Carnow testified to, does it, sir? 22 A. Well, since I do not what the d i s t r i b u t i o n in his 23 people between chloracne and non-chloracne, I can't then say. 24 Q. So when you testified here at the b e hest of Mr. 52 1 Heineman that it did contradict Dr. Carn o w ' s findings and 2 testimony, you misspoke and were in error, weren't you, sir? O A.' On the basis that I didn't know the chloracne 4 incidence, that would be true. 5 Q. Not the basis, you didn't know the c h l o r a c n e 6 incidence, Dr. Dost, simply upon what Mr. Heineman told you 7 when you said Dr. Carnow that this Moses study contradicts 8 what Dr. Carnow said, you misspoke, did you not, sir? 9 If you don't know what Dr. Carnow reported with 10 relation to the percentages and all this, you o b v i o u s l y 11 misspoke, didn't you, sir? You did not have en o u g h 12 information to come to a c o nclusion w h e ther this stu d y 13 supported him or contradicted him, did you, sir? 14 A. On that basis, no. 15 Q. But yet you told the jury that you did have such 16 information, didn't you, sir? 17 A. Yes, I was depending on the dose response. 18 Q. You got that information f r o m Mr. Heineman, didn't 19 you, sir? All the information you got about what Dr. C a r n o w 20 found or did not find, you got from Mr. Heineman, d i dn't you, 21 sir? 22 A. And from Dr. Carnow's testimony. 23 Q. Well, did you read anyt h i n g in Dr. C a rnow's 24 testimony, sir, that was in any wa y c o n t r a d i c t e d by what Mr. 53 1 Moses said? 2 A. I don '1 r e c a l l . 3 Q. Well, you sure as heck testified here that you -- 4 last week that it c o n t r a d i c t e d it, didn't it, sir? Now you 5 don't recall it. Have you had another c o nference with Mr. 6 Heineman? 7 A. N o . 8 Q. You've just plain forgotten then, is that right? 9 A. No; I was b asing this on the dose response that 10 this paper shows. 11 Q. Doctor, this paper shows that there with regard to 12 certain complaints there is no relationship to the dose, 13 isn't that correct, sir, the dose is not material, it's not 14 connected, it doesn't a ffect the complaints of joint pain, 15 abdominal pain, nausea, vomiting, diarrhea, constipation, 16 weakness, fatigue, irritability, nervousness, depression, 17 numbness, vertigo, l ightheadedness, or p e r s o n a l i t y change, 18 isn't that correct, sir? 19 A. Well, since Moses did not relate it to the general 20 population, I suppose -- 21 Q. Could you answer that question, Dr. Dost? 22 A. Yes. 23 Q. This makes -- it states for sure that there is no 24 connection with dose response in regard to those complaints, 54 1 doesn't it, sir? 2 A. No, sir, it d o e sn't say it for sure. 3 Q. Doctor, d o e sn't it say no differences were found in 4 those with and without chloracne? 5 A. In that -- in this category there, yes, was no 6 difference found between the people that had sufficient dose 7 to cause chloracne. 8 Q. Doctor, that's the dose response you're talking 9 a b o u t , isn't it, sir? 10 A. Yes. 11 MR. HEINEMAN: Objection, Your Honor, he's 12 interrupting the witness. 13 THE COURT: O b j e c t i o n sustained? 14 A. I was taking the section as a whole. There are 15 other parts where there is clearly a dose response and the 16 rest of it where there was not. 17 Q. Now*, Doctor, what you're -- what this shows is is 18 that there is a dose response for certain symptoms such as 19 m u scle pain, insomnia, decreased libido, sexual dysfunction, 20 eyelid cysts, correct, sir? 21 A. A dose response in terms of the individuals in this 22 study, the dose response -- 23 Q. That's what w e ' r e talking about is the individuals 24 in this study, the Nitro workers, Dr. Dost, the same workers 55 r, 1 that Dr. Carnow -- part of the same workers that Dr. Carnow 2 examined. 3 A. Well, the dose response relates to the others, too, 4 it's just that they didn't reach a point where there would be 5 a difference. 6 Q. Doctor, where is there anything in this study that 7 suggests to you that there is a dose response for those 8 having joint pain? Point it out to me, Doctor. 9 A. There is a dose response. None of these 10 individuals reached the point where there is a difference 11 demonstrated. 12 Q. Excuse me, Doctor. Point out where this article 13 shows there is a dose response for those people having joint 14 p a i n . 15 A. This art icle does not describe the dose response 16 except to say that the p e o p l e w i t h chloracne, who o b v iously 17 had a higher dose -- 18 Q. Doctor, that isn't what I asked you. Point out for 19 me in this article w h e r e it says there is a dose response for 20 those workers having joint pain. 21 A. It does not say that. 22 Q. There is n o t h i n g in this article that states 23 insofar as the p r o b l e m of joint pain is concerned that there 24 is a dose response related to d i oxin exposure, isn't that 56 1 correct, sir? 2 A. There is no data in this paper that shows that. 3 Q. Is the answer to m y question yes, that's correct, 4 Mr-Carr? 5 A. That's correct. 6 Q. Yes. And as a matter of fact, this document, 7 there's nothing in this document that shows there is any dose 8 response connected with those that have abdominal pain as 9 well, isn't that correct, sir? 10 A. No, they haven't reach a point where -- 11 Q. Excuse me, could you answer that question, Dr12 Dost? 13 A. That's correct. 14 Q. The same thing is true for those having nausea. 15 T here is no dose response for those people having nausea 16 that's been exposed to dioxin, isn't that correct, sir, 17 according to this document? 18 A. From the data in this document, that's correct. 19 Q. And from the data in this document there is no dose 20 response for people who have the affliction called vomiting 21 or diarrhea, isn't that correct, sir? 22 A. Not data in this paper. 23 Q. And again in this paper there is no dose response 24 for those people exposed" to TCDD having weakness or fatigue, 57 1 isn't that correct, sir? 2 A. Yes, neither group. 3 Q. Is the answer to my question, yes, t hat's correct, 4 Mr. Carr? 5 A. That's correct. 6 Q. As far as this document is concerned, there is no 7 dose response for exposure to TCDD for irritability, is 8 there, sir? 9 A. According to this document, no. 10 Q. Again is the answer to my question, yes, Mr. Carr, 11 t h a t 's correct? 12 A. That's correct. 13 Q. Doctor, insofar as this document is c o n c e r n e d and 14 this study is concerned, there is no dose response for people 15 who are caused to be nervous by TCDD, is there, sir? 16 A . N o , sir. 17 Q. And the same thing is true for those p e o p l e whot 18 have numbness, there is no dose response shown for people 19 that have numbness being caused by TCDD, isn't that correct, 20 sir? 21 A. Yes, that's correct. 22 Q. For vertigo or lig h t h e a d e d ne s s or p e r s o n a l i t y 23 change, again this document d e m o n s t r a t e s there is no dose 24 response for those symptoms, doesn't it, sir? 58 1 A. No, sir, that's not correct. 2 Q. Doctor, do you not agree that the people with a 3 dose sufficient to cause chloracne had personality change? 4 A. That's not the ques t i o n you asked me, sir. 5 Q. Excuse me, Doctor. I'm leading to that, sir, do you 6 not agree that this document shows that, sir? 7 A. That's correct. 8 Q. Do you not also -agree that the people who did not 9 have chloracne also showed and complained of personality 10 change after being exposed to TCDD? 11 A. If they were exposed to TCDD in any case they did, 12 y e s . 13 Q. Doctor, are you taking Dr. Moses' work as correct, 14 that all of these population, that n obody in this p o p u l a t i o n 15 could be caused an une x p o s e d p o p u l a t i o n or u n e xposed 16 subject? You do recall she testified to that, don't you, 17 sir? 18 A. That's correct. 19 Q. Rather she found that, sir. And you also agree 20 that she said that no chl o r a c n e is not synonymous with no 21 exposure, don't you, sir? 22 A. That's correct. 23 Q. Doctor, you also ag r e e d that there were people that 24 were heavily exposed to TCDD that never did get chloracne, 59 1 you also agree with that, don't you, sir? 2 A. Is that stated here? 3 Q. Doctor, you're the toxicologist. Don't you know 4 that it's shown here in this document? 5 A. How heavily? 6 Q. Doctor, do you know or not know that this d ocument 1 shows that there were people who were heavily exposed to 8 dioxin that never did get chloracne? 9 A. Noone knows pre c i s e l y how heavily -- 10 Q- Excuse me, Doctor. Could you answer that question 11 p l e a s e . I'm talking about this document, sir. 12 A. Well, perhaps you could show me where that 13 statement is made. 14 Q. No, Doctor, I will not show you. You're testifying 15 about this with regard to Mr. Heineman. Aren't you aware at 16 the time you testified, sir, that this document shows a 17 significant percentage of people who were heavily e x posed to 18 dioxin never did get chloracne, aren't you aware of that? 19 A. I don't think that that shows that at all. 20 Q. Doctor, are you aware of that or not? 21 A. I'm not aware that this document shows that people 22 who were heavily exposed to TCDD did not get chloracne. 23 Q. Doctor, turn to Page 171, the table, if you recall, 24 I asked you about it on cross-examination. Perhaps yo u ' v e 60 1 forgotten it- You see the table there at the b o t t o m of the 2 page on 171 where they're talking about heavy exposure, sir? 3 You see the word heavy there? 4 A. It was heavy exposure to 2,4,5-T. 5 Q. You see that, sir, heavy exposure? 6 A. To 2,4,5-T, yes. 1 Q. An d the 2,4,5-T has got the dioxin, isn't it, sir? 8 A. Yes. 9 Q. And, Doctor, do you see there 24 percent of the 10 people w ith a heavy exposure never did get chloracne? 11 A. T h a t ' s -- 12 Q. You see that, sir? 13 A. Yes, that's based on t h e i r -- 14 Q. Doctor, whatever it's based upon what I'm asking 15 y o u -- 16 MR. H E I N E M A N : Objection, Your Honor, he 17 interrupted the answer again. 18 THE COURT: Objection is overruled. 19 Q. This document, this table shows that 24 p e rcent of 20 the people who had a history of heavy exposure to 2,4,5-T and 21 to the d i oxin contaminant therein did not get chloracne, 22 isn't that correct, sir? 23 A. If one uses the word in this document -- 24 Q. Doctor, that's exactly what I've used all along, 61 1 that's what I been talking about is this document, sir. 2 Would you answer my question please, sir? 3 A. The amount of exposure is not known. T his depends 4 on exposure. 5 MR. CARR: Your Honor, would you direct the witness 6 to answer my question. 7 THE COURT: Doctor Dost, you are so directed to 8 answer that question. That answer was not responsive. 9 A. Well, I'm trying to figure out how to answer your 10 question responsively Mr. Carr. Perhaps you could ask me 11 again and let's see if I-- 12 MR. CARR: Would you read the ques t i o n again. 13 (The Court Reporter read back the q u e s t i o n at this 14 time.) 15 A. This diagram so states. 16 THE COURT: Gentlemen, could you approach the bench 17 for a minute please. 18 (At this time a conference was had at the b e n c h out 19 of the hearing of the jury.) 20 THE COURT: Have you told him these guidelines that 21 I set down as far as what's to be done in this courtroom. 22 MR. H E I N E M A N : Oh, sure that was before he -- 23 THE COURT: No, those were set out during Kilgore. 24 MR. HEIN E M A N : T have told him that-- 62 1 THE COURT: Well, you better drive it home again. 2 He's interrogating counsel without responding to questions 3 and insisting upon not responding, and I won't tolerate it. 4 I'll give you an hour or two to drive the points home again. 5 I know this was settled during Dr. Kilgore's testimony, but I 6 think you better make him more familiar with it during the 7 lunch hour, and since it's noon we'll break at this time. 8 (The following proceedings were had in open Court.) 9 THE COURT: Ladies and gentlemen, we'll take our 10 lunch break at this time. W e ' l l resume again at 1:15. I 11 would remind you that you're not to discuss this matter among 12 yourselves or with anyone outside the jury panel or as of yet 13 form any opinions or c o n c l u s i o n s about the m a t ters on trial. 14 Court's in recess until 1:15. 15 (At this time a short recess was taken.) 16 17 (The following p r o c e e d i n g s w e r e had in open Court.) 18 MR. CARR: Could y o u give Plaintiffs' 1665 to the 19 witness please. 20 ' Q. Now, Dr. Dost, are you familiar w ith this book put. 21 out by the EPA? 22 A. I haven't had a chance to read all the w a y through 23 it. I know of its existence. I've seen a copy, but I haven't 24 studied it intensively. 63 1 Q. You haven't read it to see whether or not it -- 2 health assessment document is consistent or inconsistent with 3 some of the things you've testified to in this case, Dr. 4 Dost? 5 A. I haven't had a chance to go all the way through 6 t h i s . I d o n 't know. 7 Q. Is the answer to my question that you have not had 8 the opportunity to compare what it says about the various 9 health effects with what you have said, cause I didn't get 10 that one way or the other. 11 A. I guess the answer would be, no, because I have not 12 finished inspecting it. 13 Q. Doctor, you do recall that you discussed whether or 14 not heme synthesis c a used p o r p h y r i a ? 15 MR. HEINEMAN: Objection, Your Honor, ma y counsel 16 approach the bench? 17 THE COURT: Sure. 18 (At this time a c o n f e r e n c e was had at the b e nch out 19 of the hearing of the jury.) 20 MR. HEINEMAN: Mr. Carr has just opened this line 21 of questioning relating to something that the witness talked 22 about on direct ex a m i n a t i o n that was not covered on redirect, 23 and I object to it. It's going b e yond the scope of the 24 redirect examination. 64 1 MR. CARR: According to my notes not on this time, 2 but earlier when he testified, he testified about heme 3 synthesis and kidneys and porphyria. Well, he discussed 4 porphyria, as a matter of fact, just yesterday or last Friday 5 discussed porphyria with the witness. 6 MR. HEINEMAN: Well, Your Honor, my objection 7 stands. I don't recall to the best of my memory the last 8 time he testified before Dr. Kilgore came on the stand we 9 spent a lot of time, as I recall, on the Pitot article, Mr. 10 Carr had c r o s s-examined the w i t ness on. 11 THE COURT: Right. 12 MR. H E X N E M A N : He testified, and we went on and 13 spent some time on that article, but I do not recall this 14 subject being gone into on redirect examination, and I object 15 to it as b e yond the scope. 16 MR. CARR: You don't recall just last Fr i d a y 17 discussing porphyr i a with this witness? 18 MR. H E I N E M A N : No, I don't recall discus s i n g 19 p o r p h y r i a . 20 MR. CARR: You went t h r ough articles to show whether 21 or not porphyria caused neuropathies, you don't recall that? 22 THE COURT: I'm p r e t t y sure I have it in my notes. 23 Let me check. 24 MR. CARR: I have p l e n t y of notes, Your Honor. I 65 1 can get my notepad here. 2 THE COURT: Yes, you did discuss it. Obj e c t i o n is 3 overruled. 4 (The following proceedings were had in open Court.) 5 Q. Doctor, you do recall discussing on -- counsel, if 6 you want to look for a November -- since you didn't remember 7 it, November 13, 1985 at Page 83 he discusses kidney damage. 8 MR. HEINEMAN: November what? 9 MR. CARR: November 13, '85, the day you conducted 10 your redirect examination just prior to putting on Dr. 11 Kilgore. 12 MR. HEXNEMAN: On kidney damage? 13 MR. CARR: Yes. 14 MR. HEINEMAN: Well, your Honor, I thought the 15 question related to heme synthesis. At any rate, ma y my 16 objection be a continuing one? 17 THE COURT: Sure, I'll make it a continuing 18 objection. 19 Q. Doctor, you do recall we discussed the kidneys and 20 whether or not the heme synthesis can cause porphyria? 21 A. I recall only one -- I don't recall any reference 22 to kidney damage and porphyria except in my direct testimony 23 where I remarked that there was some evidence of, if I 24 recall, a very limited evidence of porphyria in the kidneys 66 1 of some intoxicated animals. 2 Q. Now, Doctor, turn to Page 8-48 of the d o c u m e n t I 3 gave you, would you please, sir. It dis c u s s e s there, does it 4 not, sir, the study by Goldstein on porphyria induced by 5 2,3,7,8-TCDD? 6 A. Yes. 7 Q. And, Doctor, are you familiar with this -- have you 8 read this page before that I referred you to? 9 A. Well, I read it in the original document. X don't 10 recall whether I've read it in this final report. 11 Q. Doctor, just a few points there relating to the 12 porphyrins. You see the statement there where after a six 13 month recovery period the p o r p h y r i n level in a n i m a l s exposed 14 to one microgram per kilogram per week was still one hundred 15 fold higher than values in the control group? 16 A. Yes, sir. 17 Q. Do you also see the sentence, a similar p a t t e r n was 18 observed for urinary excretion of uroporphyrins? 19 A. Yes. 20 Q. You also see that they say the rate limi t i n g enzyme 21 in heme synthesis? 22 A. Yes. 23 Q. Aminolevulinic acid synthetase was also e l e v a t e d at 24 both the time of determination of treatment and at the end of 67 1 the recovery period? 2 A. Yes. 3 Q. All right. Now could you turn to Page 8-60 4 please. And 8 -- you see on 8-60 they're discussing humans 5 and the effect of acute exposure and chronic exposure? 6 A. Yes. 7 Q. And discusses the things that can be caused by 8 acute exposure on Page 8-60 and if you will turn over to Page 9 8-61 it says, does it not, sir, chloracne is g e n e r a l l y the 10 first -- this is the paragraph beg i n n i n g at the b o t t o m of the 11 page or about midway in the middle of the page. C h l o r a c n e is 12 generally the first symptom noted in chronic exposure. 13 Systemic symptoms, including altered function of the 14 neuromuscular system, liver, kidneys, and pancreas, altered 15 blood chemistry, serum bilirubin, GOT, G B T , and c h o l e s t e r o l 16 levels, porphyria cutanea tarda, hyperpigmentation and 17 hyperkerotosis have also been reported in i n d i viduals that 18 have had chronic 2,3,7,8 exposure. You see that, sir? 19 A. Yes. 20 s Q. All right. Now, Doctor, insofar as the J i rasek and 21 Pazderova articles that you testified before you left, Dr. 22 Kilgore has gone into these articles with us at some length, 23 but in order to touch base on what you testified for with Mr. 24 Heineman, the authors of these articles, that is Jirasek and 68 1 Pazderova, ascribe -- first of all, they knew about 2 hexachlorobenzene being in the chemical, did they not, sir? 3 A. Yes. 4 Q. And they knew that the h e x a c h l o r o b e n z e n e was one of 5 the chemicals to which these workers were exposed, did they 6 not? 7 A. Yes. 8 Q. But they ascribed, did they not, that the effects 9 suffered by these workers that they studied came from the 10 TCDD? 11 A. I believe that that was stated in the P a z d erova 12 paper. 13 Q. Yes. Now, Doctor, with respect to the effect of 14 other chemicals mixed with TCDD, are you familiar with the 15 various studies by, for instance, by G o l d s t e i n in his 16 article, Plantiff's Exhibit 1656, where he said the potency 17 of TCDD in producing h e p a t i c po r p h y r i a suggests that even 18 slight contamination of environmental chemicals where- TCDD or 19 chlorinated dibenz o f u r a ns m a y c o ntribute s u b s t a n t i a l l y to the 20 porphyrinogenic effect of these chemicals. 21 MR. HEINEMAN: Excuse me just a moment, Doctor. May 22 counsel approach the bench, Your Honor. 23 THE COURT: Sure. 24 (At this time a c o n f e r e n c e was had at the b e n c h out 69 1 of the hearing of the jury.) 2 MR. HEINEMAN: Now Mr. Carr has gone into 3 Plaintiffs' Exhibit 1673, the Goldstein article and -- 4 .THE COURT: I thought he said 1656. 5 MR. HEINEMAN: T h at's the first item on 1673 is the 6 article Plaintiffs' Exhibit 1656. 7 THE COURT: All right. 8 MR. HEINEMAN: This was not covered in the redirect 9 examination. Redirect examination had nothing to do with 10 this article, and I object to it as going beyond the scope. 11 MR. CARR: Your Honor, the redirect examination had 12 a great deal to do w i t h por p h y r i a and what causes porphyria, 13 and counsel went into it at conside r a b l e length. 14 MR. HEINEMAN: W e l l , I d i s a g r e e , Your H o n o r , plus 15 the fact that he's t a l k i n g -- 16 MR. CARR: Yo u disagree? You think you did not get 17 into porphyria? 18 THE COURT: My notes indicate that yesterday you did 19 go into porphyria, which is the basis of my ruling on the 20 last objection. 21 MR. HEINEMAN: Porphyria is one thing, Judge, but 22 now he's g oing into this busi n e s s about whether or not dioxin i 23 can cause in other e n v i r o n m e n t al chemicals through the enzyme 24 induction business, the thing that he cross-examined Kilgore 70 1 on this subject after going first through that AMA statement 2 on enzyme induction and then down through into this thing,and 3 this was not covered with this witness at all. 4 MR.' CARR: Your Honor, all kinds of h ealth effects 5 were covered with this witness on redirect examination. 6 Simply because they chose not to ask a question about an 7 exhibit that we have that shows health effects surely doesn't 8 mean that I cannot cross-examine this witness on health 9 effects caused by dioxin. 10 THE COURT: I think the area was covered. I don't 11 think it's outside the scope. Again I'll -- I'm going to 12 overrule your objection. I'll make it a c o ntinuing o b j e ction 13 to this line of questioning. 14 MR. HEINEMAN: Thank you, sir. 15 Q. Doctor, to help you in this area when you t e s t i f i e d 16 as to what chemicals m a y or may not do to workers, did you 17 have in m ind the p o t e n t i a t i n g effect that these che m i c a l s m a y 18 have one upon the other when they're mixed together? 19 A. Yes. 20 Q. All right. Then in that regard do you agree as -- 21 with the statement that Go l d s t e i n has made here as I read it 22 to you? It's right at the very top of the exhibit that I've 23 given you, sir. 24 A. Well, no, .sir, I don't. 71 1 MR. HEINEMAN: Excuse me, which exhibit has he been 2 handed. 3 MR. CARR: 1673, C ounsel. 4 Q. You don't agree with what Goldstein says about the 5 potency of TCDD? 6 A. No, sir, you asked me a question relative to 7 potentiation by-- 8 Q. My question, Dr. Dost. Do you or do you not agree 9 with the statement made there by Goldstein, the potency -- 10 quote " the potency of TCDD in producing hepatic p o r p h y r i a 11 suggests that even slight c o ntamination of envi r o n m e n t 12 chemicals with TCDD or c h l o rinated dibenzofurans m a y 13 contr i b u t e substantially to the p o r p h y rinogenic e f f ects of 14 these c h e m i c a l s " . Do you agree or disagree? 15 A. That's possible. I don't know what she means by 16 s l i g h t . 17 Q. Well, do you agree or disagree with this statement, 18 Dr. Dost? 19 A. I guess I would have to say that I would a g r e e if 20 there's enough TCDD there. 21 Q. What it says, doesn't it say, Doctor, that even 22 slight contamination of these chemicals with TCDD may cause 23 these chemicals to be more por p h y r i n o g en i c than t h e y w o uld 24 have otherwise been? Isn't that exactly what it says? It 72 1 says may contribute substantially to the porphyrinogenic 2 effects of these chemicals? 3 A. It's not going to make those chemicals m ore 4 porphyrinogenic. 5 Q. Dr. Dost, that isn't what I asked you. I asked you 6 isn't that what this statement says? 7 A. No, sir it doesn't. 8 Q. The words ma y contribute s u b s t a n t i a l l y to the Q porphyrinogenic effects of these chemicals, do you understand 10 what that phrase means, Dr. Dost? 11 A. Yes, I understand what that -- 12 Q. It means that something put in there c o n t r i b u t e s to 13 the effects of the chemicals themselves, d o e sn't it, sir? 14 A. Perhaps we should clarify the definition. 15 Q. Excuse me, Doctor, could y o u -- 16 A. No, sir, I d o n ' t -- no, sir it -- 17 Q. The words ma y contribute s u b s t a n t i a l ly to the 18 porphyrinogenic effects of these chemicals doesn't mean that 19 that which precedes it causes these -- the p o r p h y r i n o g e n i c 20 effects of these chemicals to be increased? 21 A. It may -- 22 Q. Are you saying it doesn't say that, Dr. Dost? 23 A. No, sir, it doesn't. 24 Q. All right. That's the w a y you read this, sir? 73 1 A. May I explain how I read it? 2 Q. Sir, I'm asking you, Dr. Dost, that the w a y that 3 you have just stated is the way that is read, should be read 4 according to you? 5 A. There is a semantic p r o b l e m there. 6 Q. Dr. Dost, there m a y be all kinds of p r o b l e m s there, 7 but if I argued semantics -- all I'm simply a sking you, sir, 8 doesn't this sentence mean that the TCDD, when it's even 9 slightly contaminating these environmental chemicals, may 10 contribute substant i a l ly to the p o r p h y r i n o g e n i c effects of n those chemicals that it is contaminated with? 12 A. No, sir. 13 Q. Doctor, how else can you interpret this sentence 14 except -- w e l l , let's go one at a time. The p o t e n c y of TCDD 15 in producing hepatic porphyria, you un d e r s t a n d that, don't 16 you, sir? 17 A. Yes. 18 Q. Do you agree that TCDD is a p o tent cause of hepatic 19 porphyria? 20 A. In experim e n t a l a n i mals it cer t a i n l y is. 21 Q. No, Doctor, I d idn't ask you that. My q u e s t i o n is 22 do you agree that TCDD is a p otent in pro d u c i n g hepatic 23 porphyria? 24 A. Yes. 74 1 Q. nd the evidence of that, Dr. Dost, is that it does 2 it in experimental animals, isn't that correct, sir? 3 A. That's correct. 4 Q. But the co n c l u s i o n that you reached from these 5 experiments is that TCDD is a potent producer of hepatic 6 porphyria, correct, sir? 7 A. Yes. 8 Q. And, Doctor, then we have no quarrel with the truth 9 or the falsity of that statement, do we, sir, TCDD is a 10 potent producer of h e p atic porph y r i a ? 11 A. That's correct. 12 Q. And the next statement. This fact suggests that 13 even slight c o n tam i n a t i on of e nvironmental chemicals with 14 TCDD. Now we're in a g r e e m e n t on what that means, aren't we, 15 sir? 16 A. Yes. 17 Q. Slight c o n t amination, a little bit of TCDD in these 18 environment chemicals, correct, sir? 19 A. * Yeah. 20 Q. And then w h a t does it say will happen or can happen 21 or may happen by this slight c o n t a m i n a t i on ? 22 A. What it says is that the TCDD by itself m a y add to 23 the effect that the other che m i c a l s exert. 24 Q. Oh, Doctor, it says quote ma y contribute 75 1 substantially to the porphyrinogenic effects of these 2 chemicals. What chemicals are they talking about, Doctor, in 3 that phrase? 4 A. We're talking about the other chemicals that might 5 be in a mix. 6 Q. Yes, and it means it may contribute substantially 7 to the effects of these chemicals d o e s n 't i t , sir? 8 A. No, sir. 9 Q. Oh, isn't that exac t l y what it says, may contribute 10 s u b stantially to the p o r p h y r i n o g e n i c effects of these 11 chemicals? 12 A. It has no effect on the effects of these chemicals. 13 Q. Doctor, what I'm a sking you, you say that it has no 14 effect upon these chemicals, that's what you're saying, but 15 isn't Dr. Golds t e i n saying that it does, that it may 16 contribute s u b s tan t i a l ly not just to its own porph y r i n o g en i c 17 effect, but it may co n t r i b u t e subst a n t i a l ly to the 18 porp h y r i n o g en i c effects of these e n vironmental chemicals? 19 A. No, sir, I don't b e l ieve that it does. 20 Q. All right. You have the right, Dr. Dost, to 21 disagree with that -- with this statement, have you not, sir? 22 A. That's correct. 23 Q. But you don't have the right, do you, sir, to say 24 that it's not talking about the por p h y r i n o g en i c effects of 76 1 these chemicals has contributed substantially to, do you, 2 sir? 3 A. I cannot argue with the words that are here. 4 Q. That's right. 5 A. But I do not agree with your definition, with your 6 interpretation of the words. 7 Q. Doctor, how else can you interpret the words that 8 even slight contamination may contribute to the effects of-- 9 it doesn't say increase the porphyria, because of the TCDD 10 being added to it, that is, the porphyria caused by TCDD and 11 the porphyria caused by the chemicals. What it says is that 12 TCDD contributes to the effects.of these chemicals in causing 13 por p h y r i n o g en i c effects, doesn't it, sir? 14 A. Those are the words that are were used. There are 15 no other chemicals in this experiment. 16 Q. Sir? 17 A. There were no other chemicals in this experiment. 18 Q. There were no other chemicals, sir? What you're 19 now quarreling with is the c o nclusion reached by the author, 20 aren't you, sir? 21 A. I do not believe that the a u t h o r -- 22 Q. Excuse me. W h a t y ou're quarrelling with, Doctor, is 23 the conclusion reached by the author, aren't you, sir? 24 A. I'm quarrelling, I think, sir, with your 77 1 interpretation of author's conclusion. 2 Q. Doctor, didn't you just say that you did not 3 believe there were other chemicals involved and didn't you 4 mean by that to knock the conclusion reached by the author? 5 A. The author studied only TCDD in this experiment. 6 Q. Excuse me, Doctor, could you answer that question, 7 sir. 8 A. I am disagreeing with the co n c l u s i o n as it is 9 worded in this statement. 10 Q. That's exactly what I asked you. You are 11 disagreeing with the words, with the conclusion reached by 12 that statement, aren't you, sir, in that statement? isn't, 13 that what you just said? 14 A. It is an unclear statement. 15 Q. Didn't you just say you're d i s a g r e e i n g w i t h that 16 conclusion, D r . Dost? 17 A. That I am disagreeing w ith your c o n t e n t i o n that it 18 can -- that it causes other chemicals to be m o r e ' 19 p o r p h y r i n o g e n i c . 20 Q. Doctor, that isn't my contention. It is my 21 position as an advocate of my client, but I'm not a 22 toxicologist, and I'm not a scientist. My question is did 23 you not just a second ago agree that you disagreed with the 24 conclusion reached by the author of this article? 78 1 A. We have a problem. You read this sentence one way 2 and I read it another way. 3 Q. Dr. Dost, that isn't what I'm a s king you. My 4 question now is just simply that did you just -- maybe you 5 didn't m ean to say it, but didn't you just say a few seconds 6 ago that disagreed with the conclusion reached by this 7 author? 8 A. If this conclusion means that TCDD c auses other 9 chemicals to be more porphyrinogenic, I certainly disagree. 10 I do not believe that that's what it means. 11 Q. All right. Well, what else does it mean, D o c t o r ? 12 A. It means that TCDD as a p o r p h y r i n o g e n i c agent m a y 13 very well add to the p o r p h y rinogenic effect. In other words, 14 there are two sources of a p o r p h y r i n o g en i c e ffect and that 15 would be the way that this author, I'm sure, intended that 16 statement to mean. 17 Q. Doctor, you don't even have to be a sci e n t i s t to 18 know that. What you're saying is one plus one, that is, the 19 porphyrinogenic effects of TCDD,' being one, a d d e d to the , 20 porphyrinogenic effects of another chemical, b e i n g one, that 21 equals two? 22 A. Exactly. 23 Q. Doctor, you don't need to have a scientific stu d y 24 to determine that, do you, sir? 79 1 A. You certainly need a scientific study to d e t ermine 2 whether TCDD is p o r p h y r i n o g en i c . 3 Q. Doctor, that's a given in this situation. You're 4 not quarrelling with that. We have already agreed that 5 that's the case if it happens with e x p e r i m e n t a l animals, so 6 we're not quarrelling with that point. I'm now asking you 7 w h a t -- Isn't it a fact you don't need a study to d educe that 8 one plus one equals two? 9 A. That's correct. 10 Q. And this study, you know, d o e sn't say that, and you 11 don't need to have it to say that. O t herwise, w h a t ' s the 12 significance of that statement at all, D o c t o r ? 13 A. Because the author is trying to give some idea of 14 what the significance of TCDD as it exists as a c o n t a m i n a n t 15 in any chemical, that author has done a b s o l u t e l y n o t h i n g in 16 that paper to even contemplate an interaction b e t w e e n TCDD 17 and some other chemical to cause an effect that n e i t h e r by 18 itself is causing. 19 Q. Doctor, you ma y quarrel with what the a uthor has 20 done, but he discusses AL A synthetase, does he not? 21 A. She does, yes. 22 Q. Discusses p o r p h y r i n u r ia ? 23 A. Correct. 24 Q. And talks about the dose response for 80 1 porphyrinogenic action of TCDD should be determined after 2 longer exposure since effects may be seen at lower doses 3 after longer periods of exposure? 4 A. That's correct. 5 Q. And also discusses the fact that TCDD is the most 6 potent compound known to produce porphyria in mammals? 7 A. Yes. 8 Q. Doctor, there's no question in your mind but what 9 human beings are mammals, correct, sir? 10 A. That's correct. 11 Q. And human b eings would be included in that 12 s e n t e n c e , wouldn't it, sir? 13 A. Certainly. 14 Q. Yes. And, Doctor, the next sentences discuss 15 Orachlor and Europ e a n PCB, does it not, sir? 16 A. I don't remember. I do not have that paper in 17 front of me, sir. 18 Q. You haven't been given that? 19 A. I have only have this. 20 Q. All right. 21 MR. CARR: W o u l d you give 1656 to the witness. 22 Q. I thought you w e r e reading along w i t h me. I'm 23 sorry. Page 926 is where I'm reading. Now, Doctor, the 24 author does discuss Orachlor and pcb's from Europe? 81 1 A. Yes. 2 Q. And after m a k i n g -- Doctor, there's no question 3 but what in this paragraph that you now see -- you see this 4 sentence that we're discussing that's the subject of our 5 topic so far? 6 A. That's correct. 7 Q. And there's no question but what she is discussing 8 TCDD Orachlor and other pcb's, correct, sir? 9 A. Yes. 10 Q. After m a k i n g those discussions, she says the 11 p o t ency of TCDD in p r o d u c i n g hepatic porphyrias suggests that 12 even slight c o n t a m i n a t i o n of environmental chemicals with 13 TCDD may contribut e s u b s t a n t i a l ly to the p o rphyrinogenic 14 effects of these chemicals, right, sir? 15 A. Yes. 16 Q. Doctor, the TCDD is contributing to the effect of 17 other chemicals, is it n o t , sir? 18 A. It is co n t r i b u t i n g to the total p o rphyrinogenic 19 e f f e c t . 20 Q. No, that w o u l d be the total porphyrinogenic effects 21 of the chemicals plus the TCDD. 22 A. No, sir. The chemicals -- she's not talking about 23 interaction of the chemicals. In fact, she's discussing, you 24 know, we do not know that, for example, pcb's, as I recall. 82 1 do not have a history of causing porphyria. They may, but 2 the effect of porphyria found in PCB's, for example, in Japan 3 that were contaminated with furans was ascribed to the 4 furans, not to the pcb's. The point is that -- 5 Q. Now, when you say furans, you mean the dioxin 6 furans, don't you, sir? 7 A. The furans that are the d i b e n z o f u r a n s . 8 Q- Yes, that's the ones, the things that are created 9 at the same time the dioxins are created in these chlorinated 10 p h e n o l s , c o r r e c t , sir? 11 A. T hey been i d entified in some, yes. 12 Q. Doctor, do you agree v/ith the statement by Borman 13 and others in the p a r a g r a p h theret where it says, with the 14 plet h o r a of e n v iro n m e n t al chemicals it seems possible that 15 exposure to one chem i c a l m a y induce residual m a r r o w damage 16 that would make an individual more susceptible to a second 17 chemical insult, a l t h o u g h that hypothesis remains to be \ 18 tested? Do you agree with that statement? 19 A. That's not an u n r e a s o n a b l e statement. 20 Q. T h e n I take it you do agree with it? 21 A. Y e s . 22 Q. And, Doctor, do you agree with the statement 23 Cantoni and Salamo n y that the high potency underlines the 24 importance of considering the potential health hazards when 83 1 even slight contamination of the environment with this 2 compound, that is, TCDD occurs? 3 A. I don't know what they mean by slight, of course, 4 but I have to go by the -- Cantoni did work very similar to 5 that of Goldstein and worked out a dose response 6 relationship. 7 Q. Doctor, do you agree with the statement that even 8 slight contamination of the environment with TCDD should be 9 considered from the viewpoint of potential health hazards? 10 A. Yes, that's what we do all the time. 11 Q. Doctor, do you also agree that there are p r ofound 12 long-term effects from exposure to dioxin molecules? 13 A. Well, that's a term that Oliver uses. 14 Q. Yes, my question is do you agree w i t h what he says? 15 A. We know that it causes chloracne. 16 Q. Doctor, excuse me, could you answer that question 17 p l e a s e , sir? 18 A. Yes. 19 Q. - The answer is yes? 20 A. W ith respect to chloracne at least, yes. 21 Q. Doctor, there were a lot more effects discussed by 22 Oliver in his article than chloracne, was there not, sir? 23 A. There was d i scussion of cholesterol levels. 24 Q. Could you answer my question, Dr. Dost, there w ere 84 1 lot of other -- 2 A. There were a few other. 3 Q. Health effects dis c u s s e d in a d d i t i o n to just 4 chloracne, wasn't there, sir? 5 A. There were a few, not a lot, sir. 6 Q. Well, Doctor, there was d i s c u s s e d in the case -- ? 7 MR. CARR: Could you give him 1645 please. 8 MR. HEINE M A N : Excuse me, Your Honor, may counsel 9 approach the bench a minute. 10 THE COURT: Sure. 11 (At this time a c o nference was had at the b e n c h out 12 of the hearing of the jury.) 13 MR. H E I N E M A N : I just wanted to be sure for the 14 record that my continuing o b j e c t i o n applies to e v e r y t h i n g on 15 16 THE COURT: It applies to -- your c o n t i n u i n g 17 objection applies to everything out of 1673. 18 MR. HEINEMAN: Everything on 1673. 19 THE COURT: That's what I thought. 20 MR. HEINEMAN: T hat's the w a y I i n t e rpreted it, too. 21 THE COURT: That's the w a y I interpreted it, too. 22 MR. HEINEMAN: But I wanted to be sure. Okay. 23 THE COURT: Okay. 24 (The following p r o c e e d i n g s w e r e had in open Court.) 85 1 Q. D o c t o r f the first P a t ient A had pro b l e m s of -- one 2 of which was a very high cholesterol in addition to the 3 chloracne, was it not, sir? 4 A. Yes, he had a v e r y high normal cholesterol. 5 Q. He had a very high normal c h o l e s t e r o l ? W h e r e does 6 it say that, Doctor? 7 A. His cholesterol was in the range that is usually 8 found in medical texts as on the high side of normal. 9 Q. Doctor, where does this statement show that he had 10 a high normal cholesterol? 11 A. It states that his level was 302 m i l l i g r a m s per 12 hundred ml, which is in the terms of this paper s u r p r i s i n g l y 13 high for his age. 14 Q. Yes, that's what O liver says, isn't it, sir? 15 A. That's his statement, yes. 16 Q. Doctor, the next pati e n t had c o l l i c y pains, 17 flatulence, loss of weight, exc e s s i v e fatigue, oppre ss i v e 18 headaches, loss of vigor, b l u r r i n g vision, n e u r o p s y c h i a t r i c 19 p r o b l e m s , c o r r e c t , sir? 20 A. Yes, this is what the e x p e r i e n c e d -- yes. 21 Q. And high cholesterol as we 11? 22 A. Yes. 23 Q. N o w , Doctor, that's c o n s i d e r a b l y more than just 24 chloracne, is it not, sir? 86 1 - A. Yes. 2 Q. The third one did not get chloracne, but had a 3 large number of symptoms, including loss of energy, loss of 4 concentration, indigestion, flatulence, intermittent 5 diarrhea, palpations, flickering vision from the nerve 6 peripheral visual fields, difficulty focusing his eyes, 7 difficulty in sleeping, paralygic pain, oily skin, longer 8 hairlines, correct, sir? 9 A. Yes. 10 Q. And again hyperc h o l e s te r o l s , correct, sir? 11 A. Yes. 12 Q. Now, that is s i g n i f i c a n t l y m o r e -- well, he didn't 13 even have chloracne there, did he, sir? 14 A. No, according to their description. 15 Q. Now, the author des c r i b e s those effects after two i 16 years as being prof o u n d lon g - t e r m effects, d o e sn't he, sir? 17 A. Yes. 18 Q. And the author also says that this e vidence 19 suggests that those a c c i d e n t a l l y e x p osed to d i o x i n ma y be 20 subject to long delayed toxic effects, does he not, sir? 21 A. Yes, he does that. 22 Q. Do you quarrel w i t h that statement, Dr. Dost? 23 A. On the basis of his evid e n c e here, that seems 24 possible. 87 1 Q. Well, ray question is do you quarrel with it, 2 Doctor? 3 A. No. 4 Q. All right. Doctor, do you disagree w i t h the AMA 5 statement that because TCDD is a very powerful enzyme inducer 6 that in addition to altering normal enzyme activity it may 7 potentiate the harmful action of other toxins or even render 8 an otherwise innocuous agent toxic? Do you disagre with that 9 statement, sir? 10 A. Yes, I do. 11 Q. Doctor, you're not a M.D., are you, sir? 12 A. No, I'm n o t . 13 Q. And you're aware of the fact that Dr. K i l g o r e -- 14 you do know Dr. Kilgore, don't you,sir? 15 A. Yes, I'm a c quainted w i t h Dr. Kilgore. 16 Q. And he's not an M.D. either, but he served with a 17 lot of doctors, did he not, sir? 18 A. He served on the AMA panel, I believe. 19 Q. Yes. Doctor, y o u've w orked with animals. Have you 20 not seen that the TCDD in a n i mals potentiates the harmful 21 action of other toxins or renders an otherwise innocuous 22 agent toxic? Have you seen not seen that, sir? 23 A. I disagree with the last part of that question, 24 sir 88 1 Q. Doctor, do you believe that these people that made 2 up the AMA panel just pulled that out of the air? 3 A. I know of no instance where it makes -- 4 Q. Doctor, that isn't what I asked you. Do you believe 5 that they pulled this statement-- you are familiar with the 6 statement that 1 1ve read, a r e n 't you, sir? 7 A. Yes. 8 Q. Have you ever -- have you ever told the AM A -- and 9 this was made by them was in 1984, wasn't it, sir? 10 A. I think s o . I don 11 recall , '84 , 183 . 11 Q. Have you told them that you disagreed w i t h their 12 statement that it may potentiate the harmful action of other 13 toxins? 14 A. I agree that it's possible that it can p o t e n t i a t e 15 the action of other toxic substances. I.t also can d e c r e a s e 16 the action of other toxic substances. I disagree with the 17 statement that it will make innocuous materials harmful. 18 Q. Have you ever seen any studies that w o u l d suggest 19 that what they're saying is false? .20 A. I've never seen any study that suggests that it's 21 t r u e . 22 MR. CARR: Your Honor, would you direct the witness 23 to answer m y question. 24 THE COURT: The witness is so directed. 89 1 A. Wo, I have not seen specific studies that address 2 that question. 3 Q. Doctor, you made statements as to the content of 4 2.4.5- T in the world insofar as its levels are concerned. Do 5 you recall you said that it's one part per million? 6 A. I made that assumption. 7 Q. My question is do you recall you said that, sir? 8 A. Yes. 9 MR. CARR: Could you give Plantiff's Exhibit 1486 to 10 the witness please. 11 Q. Doctor, for your information Plantiff's E x h ibit 12 1486 is an analysis by Monsanto of the TCDD content of the 13 2.4.5- T produ c e d by Monsanto in the period of time f r o m 1958 14 to 1965. Now, that exhibit shows in parts per mill i on levels 15 many, many, m any times higher than one part per million, 16 d o e s n 't i t , sir? 17 A. Yes. 18 Q. It shows the v e r y lowest of TCDD content of 19 Monsa n t o produced 2,4,5-T is five parts per million, isn't 20 that correct, sir? 21 A. No, sir. 22 Q. Do you see any, sir, that's lower than five parts 23 per mill i o n in this document? 24 A. Yes, I see here in pa r a g r a p h three, samples range 90 1 from 1966 to '69 -- excuse me before then Roush said samples 2 ranged from undetectable -- 3 Q. Do you have I486? 4 A. I have I486, 5 Q. Apparently I don't. 6 A. The word undetectable is used here, the m i d d l e of 7 Paragraph 3, s i r . 8 Q. I don't even know what that is. 9 MR. CARR: Look for this exhibit that's close to -- 10 Mine is marked Plantiff's Exhibit 1486. Mr. Nassif tells me 11 that the one he used is not an exhibit in the case- W e could 12 never identify who prepared it. See if you got another 1486 13 in there. Look for 1487. That's the document that we got 14 identified by the CL number. You're in the 1600_s. 15 THE CLERK: Here it is, Mr. Carr. 16 Q. 1487 instead of 1486. Now, let me start over 17 again, Dr. Dost. This Exhibit 1487 was represented to us at 18 least to be the analysis of dioxin in 2,4,5-T produced by 19 Monsanto in the period of time from 1958 to 1965. Now, 20 Doctor, this document shows, does it not, that the lowest 21 level of TCDD found in their 2,4,5-T was five parts per 22 million? 23 A. Excuse me. I don't know which of the dioxins they 24 refer to here. I don't think they had any way of knowing how 91 1 much of this was 2,3,7,8 and so on. 2 Q. Did I say 2,3,7,8 in my question? 3 A. I guess you didn't, sir, I'm sorry. 4 Q. I didn't, did I? 5 A . No. 6 Q. Because they report -- in back in this -- strike 7 that. In any event, the TCDD des c r i b e d there is five parts 8 per million, isn't it, sir, the lowest amount? 9 A. Lowest amount, yes, sir. 10 Q. And up until 1982, thereabouts, '31 when isomer 11 specificity was more w i d e s p r e a d in the a b i lity of chemical 12 companies and others to be isomer specific a finding of TCDD 13 in a chemical one had no w a y of k n o w i n g h o w much was 2,3,7,8 14 and how much might have been some other TCDD, isn't that 15 correct, sir? 16 A. Yes, sir, that's correct. 17 Q. So far as we know, the A g e n t Orange, except for 18 samples they've tested later than that, could have been 19 largely 2,4,5-T that c o n t a i n e d v e r y little of 2,3,7,8-TCDD, 20 isn't that correct, sir? 21 A. Possibly, yes. 22 Q. Because all we know here is that these were levels 23 of the tetras, and we have no wa y of being specific, isn't 24 that correct, sir? 92 1 A. Yes. 2 Q. Now in point of fact that actually was true as well 3 in the TCDD content found in various places around the world 4 including Spolana, Czechoslovakia and Seveso'Italy at that 5 time, isn't that correct, sir? 6 A. Yes. 7 Q. So when these authors, Re g g i a n n i and others, 8 reported levels of 2,3,7,8-TCDD in the chemicals, actually 9 what they were reporting w e r e levels of T C D D 1s without isomer 10 specificity, isn't that correct, sir? 11 A. Yes. 12 Q. As far as we know and as far as Reggianni and 13 others know the chemicals spilled in Seveso, Italy could have 14 contained very high levels of 1 , 3 , 6 , 8-TCDD and v e r y low 15 levels of 2 , 3 , 7 , 8-TCDD, isn't that correct, sir? 16 MR. H E I N E M A N : E xcuse me. Doctor. M a y counsel 17 approach the bench, Your Honor. 18 THE COURT: Sure. 19 (At this time a c o n f e r e n c e was had at the bench out 20 of the hearing of the jury.) 21 MR. H E I N E M A N : A g a i n Mr. Carr goes totally beyond 22 the scope of the redirect examination. I object to it as 23 being beyond the scope. T h i s was cove r e d with Kilgore. It 24 was not covered with this witness. 93 1 MR. CARR: The level of 2,4-- of TCDD in 2,4,5-T 2 was gone into by Mr. Heineman, and this subject is certainly 3 -- this kind of testimony -- 4 THE COURT: Well, it was in redirect. 5 MR. HEINEMAN: It had nothing to do with whether or 6 not the levels reported by Reggianni and others in these 7 other industrial accidents was 2,3,7,8 or was some other 8 isomer. Those were gone into very specifically with Dr. 9 Kilgore and not with this witness. 10 MR. CARR: The subject is c o n t amination of the 11 environment with TCDD. You brought up the subject that there 12 couldn't be very much 2,3,7,8-TCDD in the environment of 13 2,4,5-T has only got the one part per million. The entire 14 area was gone into. 15 THE COURT: O b j e c t i o n is overruled. 15 (The following p r o c e e d i n g s were had in open Court.) 17 Q. Could you answer my question please, Dr. Dost? 18 A. I would ap p r e c i a t e if you could repeat it. 19 MR. CARR: Could you read it to him. 20 (Court reporter read back the last question.) 21 A. Yes, that's correct. It's possible. 22 Q. Or it could have been vice versa, it could have 23 been high levels of 2,3,7,8 T C D D and low levels of the other 24 tetr a s , c o r r e c t , sir? 94 1 A. Y e s . 2 Q. What they reported in these studies with which 3 y o u're familiar is simply levels of TCDD and not which -- how 4 much was 1,3,6,8 or 2,5,7,2 or any one of other 22 isomers, 5 isn't that correct, sir? 6 A. Y e s . 7 Q. The same thing is true, is it not, Dr. Dost, about 8 the reports for the 2,3,7,8-TCDD level spilled in the Times 9 Beach or sprayed rather in the Times Beach area, what they 10 reported in those years again was total levels of TCDD, 11 c o r r e c t , sir? 12 A. Y e s . 13 Q. So it could have been, the TCDD content at Times 14 Beach could be largely 1,3,6,8-TCDD or some other isomer of 15 TCDD and very little 2,3,7,8-TCDD, isn't that correct, sir? 16 A. That's possible, yes. 17 Q. Or again vice versa, we simply have no w a y of 18 k n o w i n g , because they were not isomer specific at that period 19 of time. We simply have no w a y of knowing how much, for that 20 matter if any 2,3,7,8-TCDD was in Seveso or Times Beach or 21 Spolana, Czechoslovakia? 22 A. On the basis of those analyses back then, that's 23 c o r r e c t , y e s . 24 Q. Do you know whether or not anybody has re-analyzed 95 1 since they've got isomer specific the soil at Seveso? 2 A. I d o n 't r e m e m b e r , s i r . 3 Q. Do you know if anybody since they got isomer 4 specific anybody has ever re-analysed the soil at Times 5 Beach? 6 A. 1 believe that's been done. 7 Q. And what levels were reported in that, sir? 8 A. I really don't -- 9 Q. And who did it, sir? 10 A. I really don't remember the levels that were 11 found. I don't remember who did it. I'm aware of this 12 primarily through research that was done with Times Beach 13 soil, McConnell's work, for example, in w h i c h a p p a r e n t l y the 14 isomer specificity had been determined, but I do not remember 15 any analytical work per se, on this. 16 Q. You actually know more than that, don't you, Dr. 17 Dost? You know that Shroy analyzed this soil -- well, he 18 wasn't completely isomer specific either, was he? Yo u do 19 know that Shroy analyzed the Times Beach soil, don't you, 20 sir, through the Dayton Laboratories v/ith Dr. Hileman? 21 A. I know that he analyzed soil or had soil analyzed 22 from Eglund. I don't remember the Times Beach, his work in 23 Times Beach. 24 Q. Doctor, you read his Exhibit 1148, the work that he 96 1 did dealing with the mobility of dioxins, didn't you, sir, 2 that he wrote in 1984? 3 A. Yes, I don't remember details of it though, I'm 4 afraid. 5 Q. Doctor, in any event, the levels of TCDD in the G tank car, you know, in this case there was isomer specificity 7 by Dr. Christopher Rappe, don't you, sir? 8 A. Yes, sir. S Q. So far as you know is it a fair statement that the 10 only specific content, 2 , 3 , 7 , 0-TCDD content of a chemical 11 conta m i n a t e d by it is the chem i c a l analyzed in this case by 12 Dr. Rappe? 13 A. I don't know w h e ther that's the only such case, but 14 I know that it was done in this case. 15 Q. I'm sorry, Dr. Dost? 16 A. Like I say, I don't k n o w w h e ther it's the only such 17 case. I know that it was done in this case. 18 Q. All right. Do you know of any other case or any 19 other spill or any other oc c u r r e n c e where they analyzed 20 specifically for 2,3,7,8-TCDD after they had isomer 21 specificity ability? 22 A. I don't remember any others. 23 Q. And, Doctor, all the -- all these other studies, it 24 may be, all these other accidents it may be that the TCDD 97 1 isomer present in these other accidents was large -- other 2 accidents was largely something other than 2,3,7,8, isn't 3 that correct, sir? 4 A. That's possible, yes. 5 Q. But we know in this case -- by this case I mean the 6 Sturgeon case, we know that the TCDD isomer present here was 7 largely 2,3,7,8, don't we, sir? 8 A. That's m y understanding. 9 Q. Now, Doctor, insofar as the vo l a t i l i t y of -- strike 10 that. If the TCDD contaminant that was in 2,4,5-T that you 11 used as a standard was one part per million, the fact that 12 Monsanto's 2,4,5-T product had as high as 55 parts per 13 million that w ould make it difference in your calculations; 14 w o u l d n 't i t , sir? 15 A. I used one part per million as a long-term overall 16 average contamination level, because it was a very crude 17 relationship that I was drawing. 18 Q. Doctor, what you said was the c a l c ulation that you 19 made for this jury was based upon 2,4,5-T containing one part 20 per million of TCDD, did you not, sir? 21 A. Yes. 22 Q. In point of fact, you know from Plantiff's Exhibit 23 1487 that the TCDD content of the 2,4,5-T produced by 24 Monsanto was ranging from five to 55 times greater than one 98 1 part per million, don't you,sir? 2 A. During this period, yes. O<J Q. An d the calcula t i o n s that you made would have to be 4 multiplied by five or 55, wouldn't they, sir? 5 A. Or divided by the levels later after 1970, let's 6 say. 7 Q. What levels later do you have of Monsanto's 8 2.4.5- T, sir, that would be other than these that I've given 9 you here? 10 A. Monsanto didn't make 2,4,5-T after sometime in the 11 late sixties, if I r e m e m b e r . 12 Q. T hey didn't make it after 1970. The level that you 13 k now of for 2,4,5-T is as far as Monsanto is c o n c erned their 14 contribution to the environment they're all at levels of -- 15 well, there's just a couple levels at five, all the others 16 are -- go from, as I say, from ten, 16, 17, 44, 41, 22, 55 17 parts per million, don't they, sir? 18 A. According to this, yes, sir. 19 Q. Now, Doctor, insofar as the contribution of the 20 e n v i ronment would y o u ' s a y that if Exhibit 1487 is typical of 21 Mons a n t o ' s produ c t i o n during the period of time it p roduced 22 2.4.5- T that it contributed substantially to the TCDD in the 23 environment throug h the 2,4,5-T production? 24 A. Well, I'm sure that it would have c o n t ributed to 99 1 what had been distributed with 2,4,5-T. 2 Q. My question was it would contribute s u b s t a n t i a l ly 3 to that, sir. 4 A. Well, I don't know what -- I don't know how m u c h of 5 the 2,4,5-T that was used. There were many producers, and I 6 don't know how much this contributed to-- 7 Q. Doctor, we have testimony in this case that in one 8 year they produced for sale in the United States nine million 9 pounds of 2,4,5-T. 10 MR. HEINEMAN: Objection, your Honor, could we have 11 a citation for that? 12 MR. CARR: Surely. Well, I can't put my hand on it 13 this minute, counsel, but it's in evidence. I'll have to 14 supply it later, because it's not immediately a v a i l a b l e to 15 me, Your Honor, but that is the evidence, and we have 16 documentation for it if counsel -- 17 MR. HEINE M A N : May we go to the bench, Your Honor. 18 THE COURT: Sure. 19 (At this time a conference was had at the b e n c h out 20 of the hearing of the jury.) 21 MR. HEINEMAN: Mr. Carr continues to a p p a r e n t l y 22 flaunt the order of the Court and continue to make statements 23 in front of jury, speaking objections. 24 THE COURT: I think he was answering yours. 100 1 MR. HE IN E M A N : V7hat I'm saying is my un d e r s t a n d i ng 2 of the evidence in this case is that 2, 4 , 5-T that was 3 produced by Monsanto during the Vietnam war period was done 4 under government contract and almost every bit of it went to 5 Vietnam, and it wasn't used in U nited States. T h a t ' s my 6 recollection of the testimony. 7 THE COURT: W e l l , first of all, the first part of 8 what you said, I thought that was a colloquy between the two 9 of you and not a speaking objection. I don't think either of 10 you went beyond my order, so I dis a g r e e that it's 11 characterized as a speaking objection. As to the other thing 12 we been up here long e nough to take a short break. W h y don't 13 we do that. You find this at this break. 14 MR. CARR: If I have it w i t h me. I can go to the 15 o f f i c e . 16 THE COURT: Fine, okay, we'll take a short recess. 17 (The following p r o c e e d i n g s w e r e had in open Court.) 18 THE COURT: L a d i e s and gentlemen, we'll take a short 19 recess at this time. I would remind you that the 20 admonishments that I gave you earlier will apply d uring this 21 break also. Court's in recess. 22 (At this time a short recess w a s taken.) 23 24 (The following p r o c e e d i n g s w e r e had in open Court.) 101 1 MR. CARR: C ounsel, I'm ready to approach the bench again if you are. 3 THE COURT: Okay. Gentlemen. 4 (At this time a c o n f e r e n c e was had at the bench out 5 of the hearing of the jury.) 6 MR. CARR: I have supplied the citation to Mr. 7 Heineman, and in fairness to him I just gave it to him right 8 when you came in. And it is not -- you can interpret Dr. 9 Wilson's testimony on May 16th any way that you would like. 10 He says at one place there's 36 thousand pounds, another 11 place is.60 percent, and it is not clear as to what domestic 12 production was nor is it clear what was sold, how m a n y pounds 13 was sold in the United States in this p eriod of time, and we 14 have some documents that w o u l d suggest it was m u c h higher 15 than what other documents say, but what I'll do is rephrase 16 m y question so to avoid trying to -- unless counsel has got 17 some better interpretation of that t e s t i m o n y than I have, 18 cause I read it. 19 THE COURT: Rephrase it in what respect? 20 MR. CARR: Just say as far as the -- whatever 21 2,4,5-T v/as sold in the U nited States if M o n s a n t o ' s 2,4,5-T 22 had these levels of dioxin that it would be a substantial 23 contribution without s p ecifying the amounts. 24 THE COURT: Any objection to that? 102 1 MR. HEINEMAN: Yes, because the statement's been 2 made by Mr. Carr in the record that Monsanto sold nine 3 million pounds of 2,4,5-T domestically. 4 THE COURT: That would have to be taken back. 5 MR. HEINEMAN: That's absolutely not true. When he 6 was looking at with Dr. W i l s o n is P l a n t i f f ' s Exhibit 1400 and 7 8 MR. CARR: 1402. 9 MR. HE INEMAN,:i Well, the record says 1400. 10 MR. CARR: 1400 was looked at and then we got to 11 1402. See, I told you you would be confused. This is 1402 12 that the witness had. We were past 1400 already, w e ' r e - o n 13 1401? 14 MR. HEINEMAN: W h e r e ' s that nine m i l lion thing 15 again? 16 THE COURT: It d o e sn't say hCw much. 17 MR. CARR: It says -- one place it says I have put 18 the two documents together now, 1400 showing the amount that 19 was used domestically. One p l a c e here that's what I was 20 doing with Wilson. Here it says d uring *65 we supplied 619 21 gallons, w hich is 16 perc e n t of this total. 619 gallons is 22 six million pounds of 2,4,5 -- of Agent Orange, 16 percent 23 of its total, w hic h w o u l d indicate that the total supply 24 would indicate that the b a l a n c e of it was sold domestically, 103 1 but that's the pro b l e m that we got into with Dr. Wilson. It 2 was never made clear. 3 THE COURT: This is 1400? 4 MR. HEINEMAN: You say six million? That says 619 5 gallons. 6 MR. CARR: Gallons, vihich is six mi l l i o n pounds. 7 MR. HEINEMAN: Well, it was this graph right here. 8 MR. CARR: This is the graph here. I used this in 9 combination with what was the total supply. 10 THE COURT: Okay. All right. 11 MR. HEINEMAN: And what -- what W i l s o n said here in 12 referring to this graph that Mr. Carr asked Dr. W i l s on it's 13 that -- 14 THE COURT: Show it to me, and I'll read it. 15 MR. HEINEMAN: Nine million pounds. This refers to 16 total for every b o d y in the country, not Monsanto. Figure one 17 on Page 274, w hich is the exhibit that Mr. Carr referred Dr. 18 Wilson to as the Court saw in the transcript, says production 19 and domestic dis a p p e a r a n c e includes military, the 2,4,5-T 20 acid in the U.S. 1960 to 1970. So there just isn't any way 21 in the world that -- 22 MR. CARR: Counsel, I intend to take back the 23 statement of nine million pounds being produced in -- being 24 sold by Monsanto in the United States. 104 1 THE COURT: There doesn't seem to be much of 2 substance to tell you what the limit was. I think what you 3 intend to do with the objection is fine. There just isn't 4 much else to go on. We're still on for arguing that motion 5 tonight, right? 6 MR. HEINEMAN: Yes. 1 8 (The following proceedings were had in open Court.) 9 Q. Dr. Dost, when I suggested to you that M o nsanto 10 sold nine million pounds of 2,4,5-T in the U n i t e d States, 11 that was in error, and we don't know the amount. T h e r e was 12 nine million pounds sold in-the United States in a given 13 year, 1964 -- strike that, that isn't even correct. In '64 14 there were nine million pounds used in the U n i t e d States on 15 n e arly eight milli o n acres. Actu a l l y the total used in the 16 United States was 8,912,000 pounds. We don't k n o w how m u c h 17 of that was Monsanto's production. I suggested to you that 18 it was -- that Monsanto produced nine million pounds, and we 19 don't know, we have no evidence to support the statement that 20 I gave you. We have a lot of evidence about how m u c h was 21 supplied, but we don't have it for a given year, all right. 22 So I would ask you whatever the amount of 2,4,5-T 23 was that Monsanto sold in the United States it w o u l d have in 24 it the same level of contaminant of T C D D 's as its-- as the 105 1 material that was sold, as the material that's described in 2 Plantiff's Exhibit 1487, that is, in 1964, it was 12 parts 3 per million, in 1965 it was as high as 55 parts per million. 4 Now, given that, sir, do you agree that that is a 5 substantially higher level of contamination than the one part 6 per million that you mentioned earlier? 7 A. Yes, that's higher. 8 Q. All r i g h t . And, D o c t o r , depending upon the various 9 exposures of the people to the 2,4,5-T, that would have a 10 great deal to do with how m u c h TCDD in their fat came f rom 11 Monsanto's 2,4,5-T or from somebody else's, correct, sir? 12 A. Well, we have no idea who it comes from. The 13 exposure would relate to the-amount of TCDD in the fat. 14 Q. You know that Monsanto was a major p r o d u c e r of 15 2 , 4 , 5-T up until 1970, you know that, don't you, sir? 16 A. I know that they -- I don't know w h e t h e r t h e y sold 17 it in agriculture or whether this was the period of -- 18 Q. We have testimony that they did. 19 A. I see. 20 Q. T hey sold it to the government, and they sold it to 21 agriculture. Their capacity was at least acc o r d i n g to the 22 testimony, at least double what was sold to the government. 23 MR. HEINEMAN: Citation, sir. 24 MR. CARR: Yes, what I gave you, counsel. I said 50 106 1 percent of their production. 2 MR. HEINEMAN: In 1964? 3 MR. CARR: Whatever year it referred to in those 4 pages I gave you. 5 MR. HEINE M A N : One year. 6 Q. In any event, if Monsanto was a major p r o d u c e r of 7 2,4,5-T, the TCDD in its 2,4,5-T would c o n t r i b u t e 8 substantially to the TCDD found in people's fat tissues, 9 would it not, sir? 10 A. I don't really know. I wou l d expect t h a t ' s 11 possible. 12 Q. ' Doctor, you testified for -- you gave a h y p o t h e s i s 13 or Mr. Heineman based upon one part per m i l lion of T C D D in 14 the 2,4,5-T, did you not, sir? 15 A. Yes. 16 Q. Do you recall just doing that just y e sterday, sir? 17 A. Yes, yes. 18 Q. If in fact the Monsanto p r oduction was f r o m five to 19 55 parts per million, that's a major c o n t r i b u t i o n to the T C D D 20 in the environment from 2,4,5-T, isn't it, sir, if they're a 21 major producer of 2,4,5-T? 22 A. Well, if this is -- if this is the source of TCDD 23 in the fat, yes, that would have to follow. 24 Q. Doctor, that doesn't take into account the source 107 1 of TCDD in the fat that is a more common contaminant than 2 2,4,5-T, that i s , L y s o l , does it, sir? 3 A. I have no idea. 4 Q. Doctor, you do know that Lysol has been used by the 5 American housewife and other commercial cleaners and the 6 hospitals and every place else for many, many years, you know 7 that, don't you, sir? 8 A. Yes. 9 Q. It's m uch more w i d e l y used, more c o m m o n l y used by 10 the American public, and it would be m u c h more apt to be 11 exposure to Lysol than they would to 2 , 4 , 5-T, .wouldn't there, 12 sir? 13 A. But the q u a n t i t i e s are v a s t l y lower. 14 Q. D o c t o r , did you hear the ques t i o n that I asked 15 you? Could you answer my q u e s t i o n please? 16 A. I thought I w a s , s i r . 17 Q. W ould you read the q u e s t i o n to him a g a i n and ask 18 h i m -- 19 (The court reporter read back the question.) 20 A. If we dis r e g a r d amounts, yes. * 21 Q. That's what I asked you, Doctor. The o r d i n a r y 22 urban dweller doesn't go out the range land like the cattle 23 or does he, sir? 24 A. 2 , 4 , 5-T and v e r y close relatives have b e e n used for 108 1 years in house and yard maintenance. 2 Q. What's the v e r y close relative? 3 A. Silvex. 4 Q. Silvex is m a n u f a c t u r e d by Monsanto as well, is it 5 not, sir? 6 A. I don't b e l ieve so. I do not know. 7 Q. Well, it makes the 2,4,5-T from which the Silvex is 8 made, isn't it, sir? 9 A. No, they're m a d e by two separate processes. They 10 are different chemicals. One is not a derivative of the 11 o t h e r , t h e y 're s i m i l a r . 12 Q. Doctor, d i r e c t i n g your attention to the Lysol, you 13 do know that p r a c t i c a l l y all households use Lysol, you do 14 know that, don't you, sir? 15 A. Yes. 16 Q. And that is som e t h i n g that we are all exposed to, 17 aren't we, sir? 18 A. In the abso l u t e sense I suppose, yes. 19 Q. Is there any q u e s t i o n about it, sir? Aren't we all 20 daily exposed, every c o m m e r c i a l building we go into, it's 21 been cleaned with Lysol, every household -- that's an 22 exaggeration, that's not true. It is a v e r y commonly used 23 cleaner i n . h o s p i t a l s , in co m m e r c i a l buildings and in homes, 24 is it not, sir? 109 1 A. Yes. 2 Q. And we are t h e reby exposed to that cleaner wherever 3 we go, aren't we, sir? 4 A. Well, I have a little trouble with the term 5 exposed. I'm not sure that we do. 6 Q. Doctor, does the -- is the Lysol used sometimes 7 without washing it off? 8 A. O h , I suppose sometimes it i s , y e s . 9 Q. Well, you k n o w that it's recommended, the 10 manuf a c t u r e r recommends that it be used with the children's U nursery without washing it off, you know that, don't you, 12 sir? 13 A. I find that a l ittle surprising in v i e w of the 14 toxicity of the Lysol. 15 Q. W e l l , D o c t o r , m a y b e t h a t 1s improperly s u r p r i s i n g , 16 because' maybe I have misstated just exactly what the 17 m anufacturer has said. I don't have the label in front of 18 me. It's been sometime since we've gone into it. You do 19 know that it is used on occ a s i o n or more than on occasion 20 without washing it off, don't you, sir? 21 A. I suppose it is. It's not supposed to be. 22 Q. Well, and you do know on occasion that it's used in 23 much more strong so l u t i o n s than recommended as well, don't 24 you, sir? 110 1 A. Well, I would suppose. 2 Q- Not suppose, you been around, you know that for a 3 fact, don 't you, sir? Lot of people if it says dilute it two 4 to one, why,t h e y want it to be real strong, and they won't 5 dilute it two to one or ten to one or whatever? 6 A. Oh, I'm sure that happens. 7 Q. D o c t o r , the L y s o l , if it contains 2 , 3 , 7 , 8-TCDD, is 8 something that all of us, housewife to the child, may be 9 exposed to, not just in the surface that it's on, but when 10 it's being used, when it's being sprayed or washed on, isn't 11 that right, sir? 12 A. I really don't know. I don't think that the 13 exposure to it is all that easy. W h e n you say it's being 14 sprayed or washed, excuse me, what do you mean? 15 Q. Well, you do know that Lysol comes in a spray can, 16 don't you, sir? 17 A. Yes. 18 Q- And when it's sprayed on, it's in the atmosphere, 19 isn't it, sir? 20 A. Well, there are a number of products. I don't know 21 whether the spray configuration, I don't know what chemical 22 is involved, I know that there are -- 23 Q. Lysol is what I'm telling you. 24 A. There are -- that's not the only product that goes 111 1 under the Lysol name. I was little surprised to find that 2 there are other disinfectants used in products that are 3 called Lysol, and X don't quite know -- 4 Q. Doctor, you do know that Lysol comes in s p r a y a 5 can? 6 A. I have seen products labeled Lysol in a s p r a y can. 7 Q. It comes in a spray can, and it's sprayed, isn't 8 it, sir? 9 A. Well, yes, but I'm not sure -- 10 Q. If it comes in a spray can, it's sprayed, isn't it, 11 sir? 12. A. Yes. 13 Q. And if it's sprayed, you're capable of i n haling 14 that vapor in the air, aren't you, sir? 15 A. That aersol, yes. IG Q. Well, the aersol and w h a t e v e r is a t t a c h e d to the 17 aersol? 18 A. Yes. 19 Q. And if it's on a table, y ou're exposed to that, 20 aren't you , sir? 21 A. I don't know how easy it would be to get it off the 22 table. 23 Q. Doctor, insofar as the v o l a t i l i t y is c o ncerned, you 24 do agree -- no, you don't agree, you said TCDD is not 112 1 volatile, haven't you, sir? 2 A. I !ve explained that in great detail. 3 Q. Doctor, have you seen Mr. S h r oy's work, 1148, in 4 v/hich he described the volatility? 5 A. I believe I have. I d o n 't remember i t . 5 Q. Do you agree with him when he says T C D D is 7 volatile? 8 A. I have told you this before, yes. 9 Q. Well, you said before it's v o l a t i l e as a piece of 10 metal, haven't you, sir? 11 A. No, sir, I didn't. 12 Q. Oh, you didn't? Well, what did you tell us about 13 that? 14 A. I told you that it had very, v e r y limited 15 volatility. 16 Q. And how long would it take for a given a mount of 17 TCDD to evaporate then in v i e w of that? 18 A. I really have no idea how long it w o u l d take for it 19 to do that. It would depend t o t a l l y on the kind of 20 circumstances that it was in, w h e ther it was in a closed 21 system or open system. 22 Q. Well, the circu m s t a n c es w h e r e it's in soil. 23 A. I really don't know how long it w o u l d take for a 24 given amount of TCDD to evaporate away. It wduld be very 113 1 slow. If it were up on the surface and if it was p o ssible 2 for it to do that without breaking down in the light. 3 Q. How s 1ow would you say it w o u l d be, sir? 4 A. I really don't know. 5 Q. Your best judgments, Dr. Dost. 6 A. I have no wa y of making such a judgment. 7 Q. D o c t o r , y o u 1ve given us a judgment that it's not 8 going to harm anybody, you have said it's-- 9 A. T h a t 's r i g h t . 10 Q. You said it's not volatile, you said that it's 11 going to stay in the soil. Now, y o u've had to make some 12 assumptions as to how long it's going to d i s a p p e a r in the 13 air, and you've also told us that you have no idea what 14 happens to it when it's vapor form, w h e t h e r it d e g r a d e s or 15 what happens to it when it comes up to the surface and comes 16 in the vapor form, you've tes t i f i e d that you have not the 17 least idea what happens to it, have you not, sir? 18 A. T h a t 's r i g h t . 19 Q. And, Doctor, it then b e c omes important, if you 20 don't know what happens to it after it comes up out of the 21 soil, it then becomes important to know how rapidly it 22 volatilizes and comes up from that soil if y ou're going to 23 make any kind of health assessment, isn't it, sir? 24 A. I don't b e l ieve that it comes up out of the soil. 114 1 0. You don't b e l i e v e that it comes out of the soil? 2 A. I believe that it's d e g r a d e d by light b efore it 3 ever gets into the atmosphere. 4 Q. Doctor, then what you said on November 8th -- on 5 November 8th you didn't mean, sir? Sir? 6 A. Well, I'm not sure what y o u ' r e referring to, Mr. 1 Carr. 8 Q. You're not aware of the te s t i m o n y that you gave 9 that when it's in gaseous form -- 10 MR. HEINEMAN: Could v/e have a citation please. 11 MR. CARR: Yes, and I'll give to to you in a 12 m o m e n t . 13 Q. You're not aware of the tes t i m o n y you gave that 14 when it's in gaseous form, you don't know what happens to 15 it? 15 MR. HEINEMAN: O b ject to it, your Honor, unless I 17 can have a citatio n to what he's referring to. 18 MR. CARR: Page 86 and 87 of November 8th. 19 A. What I said was if it were to get in the 20 a t m o s p h e r e -- 21 Q. Doctor, my que s t i o n is are you aware of what you 22 testified in that respect? You told us, Dr. Dost,, that when 23 it's in a gaseous form, you don ' t know what happens to it. 24 That's what you told us, sir. 115 1 A. T h a t 1s r i g h t . 2 Q. And when it's coning up out of the ground, it's in 3 gaseous form, isn't it, sir? 4 A. It's not just coming bubbling up out of the soil. 5 Q. Excuse me, Doctor, my question is when it comes up, 6 when it comes from the soil, it is in gaseous form, isn't it, 7 sir? 8 A. It doesn't leave the soil. 9 Q . It d o e s n 't leave the soil? 10 A . N o , sir. 11 Q. Dr. Dost, when it's in the soil, it's in gaseous 12 form, isn't it, sir? 13 A. It's not as a free gas in the soil, no, sir. 14 Q. Doctor, then you -- you don't consider that it is a 15 free gas coming up, sir? 16 A. No, sir. 17 Q. What is a gas, Doctor? 18 A. A gas is a quantity of individual molecules of a 19 substance that are in the -- that are free in the atmosphere. 20 Q. And it rises, d o e s n 't it, sir? 21 A. Not necessarily. 22 Q. Well, you know from Dr. Shroy's work that it does 23 rise, don't you, sir? 24 A. Doctor Shroy showed that it -- 116 1 Q. Excuse me, could you answer that question, sir. 2 A. W h i c h work are you referring to? 3 Q. Ail of his works, Doctor. 4 A. He showed that it very, v e r y slowly migr a t e s toward 5 the surface. 6 Q. My question is didn't Dr. Schroy show that it turns 7 into vapor, sir, and gaseous form and volatilises? Didn't 8 Mr. Shroy show that, sir? 9 A. He was describing a process within the soil. 10 Q. W ould you answer that question as I gave it to you, 11 D o c t o r . 12 A. Yes. 13 Q. Don't go down some other path. 14 A. No, it's the same path. 15 Q. Did his work show that or not, sir? 16 A. He showed that TCDD has capability to volatilize. 17 Q. And in gaseous form, is it not, sir? 18 A. As it mig r a t e s among particles of the soil, yes. 19 Q. And he showed that it rises up in the soil column, 20 d i d n 't h e , sir? 21 A. Very, v e r y slowly, yes. 22 Q. Doctor, could you answer my question, b e c ause I'm 23 not ready to get into the very, very slowly part? 24 A. All r i g h t , y e s . 117 1 Q. And you agree that when it rises up, the -- there's 2 no way the sun can get to it if it's covered with ballast, 3 correct, sir? 4 A. Until it gets close to the top of soil, yes. 5 Q. Itfell, now, Doctor, if it's covered w ith ballast, 6 i t 's shaded, isn't it, sir? 7 A. While it is shaded, that's correct. 8 Q. If it's covered with ballast, it is shaded, isn't 9 it, sir? 10 A. Y e s . 11 Q- And it's going to come up through that ballast, 12 isn't it, sir? 13 A. Not very fast. 14 MR. CARR: Your Honor, would you direct the wi t n e s s 15 to answer my question. 16' THE COURT: Gentlemen, could you a p p r o a c h the b e n c h 17 p l e a s e . 18 {At this time a conference was had at the b e n c h out 19 of the hearing of the jury.) 20 THE COURT: Your witness is not listening to him. If 21 he's pulling these stunts, I'm going to have a d i s c u s s i o n in 22 chambers about contempt. He has not been answering 23 questions. He has been going on his own as far as answers. 24 He has been trying to interrogate the interrogator, whi c h 118 1 he's not allowed to do, and I'm just not going to stand for 2 it. A number of witnesses did that, and I i n stituted these 3 rules and admonitions for a reason, and I'm not going to -- 4 I'm going to order him to answer the question, and I suggest 5 at the next break that you strongly admonish your witness or 6 he's going to have some problems. 7 (The following p r o c e e d i n g s were had in open Court.) 8 THE COURT: Dr. Dost, you have to respond to the 9 question that is asked of you and only to that question, no 10 other. Your last answer was not re s p o n s i v e to the question. 11 I'm ordering you to answer the question. 12 THE WITNESS: I'm sorry, sir. I'm p e r haps trying 13 too hard. 14 THE COURT: Well, listen c l o s e l y to'the ques t i o n and 15 just confine your answer to that question, no more, no less. 16 Now would you read question to him please. 17 (The Court Reporter read back the last question.) 18 A. No, sir, I'll have to a nswer that no. 19 Q. Doctor, do you recall your t e s t i m o n y on N o vember 20 8th, 1985? I've asked you these que s t i o n s b e g i n n i n g at Line 21 3. So the photo d e g r a d a t i o n effect of sunl i g h t -- 22 I4R. HEINEMAN: I'm sorry, w h i c h page? 23 MR. CARR: Page 85, counsel. 24 Q. The p h o t o d e g r a d at i o n effect of sunlight w o u l d have 119 1 no role to play when TCDD is filled -- is spilled in the 2 railroad right-of-way, would i t , sir? 3 Your answer was, not when it's buried, no. Then 4 this question: It would only have a role to play when the 5 ballast is removed, w o u l d n 't it, sir? Your answer was, I 6 would assume so. 7 Then I said, when the TCDD evaporates in the soil, 8 it's evaporating in a place where it is not hit by the 9 sunlight, i s n 't it, sir? Y o u r answer was, yes. 10 Question: If it is as v o l a t i l e as Dr. Shroy 11 suggested? Answer: It would initially separate from the 12 soil under the gravel under the ballast. 13 Do you recall that being your answer, sir? 14 A. Yes. 15 Q. And eventually it's going to get out in the 16 atmosphere, isn't it, sir, in gaseous form? 17 A. Yes. 18 Q. Then, Doctor, t h a t 's how you testified at that 19 time, eventually it's going to get out in the atmosphere, 20 right, sir? 21 A. Yes. 22 Q. And you also t e s t i f i e d it w o u l d turn into gas at 23 that point at a place where it's shie l d e d from sunlight, 24 didn't you, sir? 120 1 A. Yes. 2 Q. Now, Doctor, you at that time it's in -- 3 MR. H E I N E M A N : Objection, Your Honor. May counsel 4 approach the bench. 5 THE COURT: Sure. 6 (At this time a co n f e r e n c e was had at the b e n c h out 7 of the hearing of the jury.) 8 MR. H E I N E M A N : Mr. Carr is misrepresenting this 9 witness' testimony again. What the witness said was it may. 10 MR. CARR: Yes. 11 MR. HEINEMAN: He just asked him, does it. He just 12 asked him didn't you t e s tify it does, and he didn't read him 13 what the answer the man gave was. The ma n doesn't have the 14 transcript there in front of him. 15 MR. CARR: Does he have t r o uble remembering what he 16 testified? 17 MR. HEINEMAN: A m o n t h and a half ago, I think 18 maybe he might. My point, Your Honor, is in both of those 19 questions the answer was it may, not that it does but if may. 20 I object to the question as misleading the witness with 21 respect to this prior testimony. He d idn't agree to it. 22 MR. CARR: I think I read it exactly what he said, 23 Your Honor, and -- 24 MR. HEINEMAN: Did you use the term may? No, you 121 1 didn't use the term may, so you obviously -- 2 MR. CARR: He said it would initially separate soil 3 under the gravel and ballast only gas at that time, counsel. 4 MR. HEINEMAN: That part you read to him when you 5 got down here, and you skipped down to here, that's the part 5 that you didn't read to him. 7 MR. CARR: The conclusion is exactly the same. 8 I'll read him exactly what he said. 9 THE COURT: Okay. Why don't you do that. 10 (The following proceedings were had in open Court.) 11 Q. Doctor from the -- you answered in response to 12 these questions as follov/s, did you not, sir? And when the 13 TCDD evaporates in the soil, it's evaporating in a place 14 where it is not hit by sunlight, isn't it, sir? And your 15 answer was, yes. Question: If it is volatile as Dr. Shroy 16 suggested? Answer: It would initially separate from the 17 soil under the gravel under the ballast. 18 Question: And it would turn into gas at that point 19 at a place where it's shielded from sunlight, wou l d n ' t it, 20 sir? Answer: Well, it would come in contact with other 21 particles, in all likelihood bind to them dust. Question: 22 Eventually it's going to get out into the atmosphere, isn't 23 it, sir? Answer: It may, yes. Question: In a gaseous 24 form? Answer: It may, yes. 122 1 Didn't you answer that way at those times, Doctor? 2 A. Yes, sir. 3 Q. Doctor, when it's in gaseous form, when it's rising 4 up like a gas into the place where the sunlight could get to 5 it, it is in gaseous form, isn't it, sir? 6 A. Yes, it's individual molecules, yes. 7 Q. And, Doctor, you agree, do you not, that w h e n it's 8 in that gaseous form, there's absolutely no work suggesting 9 any place that sunlight will degrade TCDD when it is in vapor 10 form, i s n 't that correct, sir? 11 A. Yes, that's correct. 12 Q. Doctor -- ? 13 MR. CARR: Could you give him D e f e n d a n t ' s E x h i b i t 14 1148 to him. I'll just hand him an excerpt from it that the 15 jury has. 16 Q. Doctor, handing you just a part now of D e f e n d a n t ' s 17 Exhibit -- let me give you the whole 1148, and I'll refer you 18 to parts of it. Oh, you found it? Well, good, I'll take 19 mine back. Doctor, are you familiar with that work? 20 A. Yes, I've looked through it. I'm not a p h y s i c a l 21 chemist, so -- but I am somewhat familiar with it. 22 Q. Doctor, you've testified .to certain things relating 23 to physical chemistry, haven't you, sir? 24 A. Yes, sir. 123 1 Q. , Doctor, this talks about it being in a vapor phase 2 for transfer, doesn't it, sir? 3 A. Yes. 4 Q. Doctor, Page 22, if you would turn to it. It says 5 TCDD volatile, doesn't it, sir? 6 A. Yes. 7 O. Very first point, number one? 8 A. Yes. 9 Q. Now, Doctor, over what period of time -- Doctor, 10 w ould you put that down for a moment so you could listen to 11 me. Over what period of time is it your judgment that TCDD 12 will evaporate when it's in vapor form and disa p p e a r from the 13 soil such at Times B e a c h or whatever? Doctor, y ou're not 14 reading that article again. I'd like for you to listen to me 15 and answer that question, your judgment i n d e pendent of what 16 Mr. Shroy has said. 17 A. I would think it would be very slow. 18 Q. Yes, but what period of time, Doctor, a p e r i o d of 19 years? 20 A. I would think so, yes. 21 Q. And you wouldn't expect it then the bulk of it to 22 volatilize and disappear in the first six months, w o u l d you, 23 sir? 24 A. No, sir. 124 1 Q- Doctor, then do you agree with Mr. Shroy, sir? 2 A. In what respect, sir? 3 Q- That it will v o latilize 90 p e r cent of it in the top 4 one centimeter will volatilize during the first summer. You 5 don't agree with that, do you, Doctor? 6 A. Well, my information is bas e d on the Eg l u n d work. 7 Q. Doctor, then you haven't read the Times B e a c h work, 8 have you, sir? I-Iave you, sir? 9 A. Well, apparently not, if this relates to -- 10 Q- Doctor, the Eglund Air Force Base dealt w i t h sand, 11 it didn't deal with soil such as Times Beach. It d ealt with 12 something that they buried in sand, and they m e a s u r e d the 13 m o v e m e n t . The article that you have in front of yo u deals 14 with Times Beach, material sprayed on top of the soil, on the 15 surface? 16 A. Yes. 17 Q- You see that, sir? 18 A. Y e s . 19 Q- You weren't familiar with that? 20 A. Well, I had read it, but I had not a s s i m i l a t e d the 21 d e t a i l s . 22 Q. Doctor, you see Mr. Shroy said that 90 p e r cent of 23 the applied TCDD v o l a t i l i z e d from the top one son o m e t e r of 24 soil during the first summer. You see that, sir? 125 1 A. Y e s , I see that. 2 Q. Do you agree with that/ Doctor, or do you have any 3 basis to disagree? 4 A. I don't have a basis for disagreeing with his 5 findings. 6 Q. Then you do accept it as true then, sir, that the 7 TCDD in the top one sonometer would volatilize, 90 percent of 8 it would volatilize in the first summer? 9 A. Well, I have no basis for d i s a g r e e i n g w ith it, sir. 10 Q. Then I take it then you would agree with it? 11 A. I have no choice, I have to agree w ith it. 12 Q. Then your test i m o n y earlier that it would not 13 volatilize rapidly w o u l d be erroneous, w o u l d n ' t it, sir? 14 A. On the basis of this finding perhaps so, yes. 15 Q. N.ot perhaps so. There is no q u e s t i o n about it. Dr. 15 Dost. What you told us earlier about it not vola t i l i z i n g 17 rapidly is erroneous, isn't it, sir? 18 A. Well, if we depend on this statement, yes. 19 Q. Nov;, when you came here to test i f y about the 20 v o l a t i l i t y and you told this jury that it w a s n ' t volatile, 21 you didn't even w o r r y about it in a vapor form, did Mr. 22 Heineman tell you or did Mr. Musg r a v e or any of the other 23 attorneys for Monsanto, did they tell you what their own 24 scientists found and said on the point at issue? 126 1 A. I was given this paper. 2 Q. Now, that isn't what I asked you. I asked you did 3 they tell you what their own scientists found and said on the 4 issue? 5 A. Well, I don't really remember, sir. T h e y ma y very 6 well have. 7 Q. Doctor, if you had known it, you sure wouldn't be 8 taking a position today and now having to say that your 9 position was erroneous, would you, sir? 10 A. Well, I was basing my -- my opinion on the behavior 11 o.f the mate r i a l in the Eglund study. 12 Q. Yes, but that's just part of the picture, Dr. Dost, 13 isn't it, because E glund Air Force Base was sand, w asn't it, 14 sir? 15 A. Yes. 16 Q. Doctor, you c e r t a i n l y wouldn't have given that 17 opinion that you gave us if you had had this study by 18 Monsanto, if you knew what this study said, would you, sir? 19 A. I don't r eally know. X don't know how to explain 20 this. 21 Q. It's easy to explain it, Dr. Dost. You weren't 22 given the information v/hen you were called into this 23 courtroom to testify as an expert, the information that you 24 need to draw appro p r i a t e scientific conclusions. 127 1 A. I was given this paper. 2 Q. Well, Doctor, you said -- also you said that it's 3 never -- never been in the air, d i d n 't you, sir, never found 4 as a gas in the air? 5 A. That's correct. 6 Q. Doctor, this table -- would you turn to Page 32. 7 This study shows you that they measured it in the air in an 8 area where it was non-shaded, in the sunshine, doesn't it, 9 sir? 10 A. Yes. 11 Q. You didn't have that information either, did you, 12 sir, when you said it's never been found in the air? Isn't 13 that correct, Dr.' Dost? 14 A. Well, I was given the information. A p p a r e n t l y I 15 did not notice it. 16 Q. Appa r e n t l y you didn't. Wow, Dr. Dost, you were 17 also -- Mr. Heinem a n this morning told you about Dr. W i l s o n ' s 18 testi m o n y on the T C D D being in the fat tissue having a life 19 of three months to three years, something like that. Do you 20 recall that, sir? 21 A. Yes. 22 Q. He suggested to you that Dr. W i lson did not testify 23 that it had a life of three to five years. Do you recall 24 that, sir? 128 1 A. Yes. 2 Q. Doctor, he didn't show you the testimony of Dr. 3 Wilson nor the exhibit that -- where Dr. Wilson calculated 4 the amount of TCDD in the fat tissue? 5 A. I have seen such an exhibit. 6 Q. Where it showed three to five years, sir? 7 A. I don't believe I've seen an exhibit that showed 8 three to five years. 9 Q. W e l l , if you had -- ? 10 MR. CARR: Would you pass Plantiff's Exhibit 1404 to 11 the witness please. Your Honor, I'm passing 1404 to the jury 12 again, and I know you wouldn't have yours available, so I'll 13 pass you this one. 14 THE COURT: Thank you. 15 MR. CARR: I have one for you, too, counsel, if 16 you'd like to use it rather than dig through yours. 17 Q. Dr. Dost, do you see the calculations of Dr. W i l s o n 18 there where he says this s u g g e s t s -- at the b o t t o m of the 19 page there -- this suggests half life for clearance is three 20 to five years? 21 A. Yes. 22 Q. And, D o c t o r , -were you av/are of that the question 23 that Mr. Heineman asked you or what he told you that Dr. 24 Wilson testified to indeed took place on Hay 16th, 1985, but 129 1 that on May 17th, 1985, just two and three pages after what 2 he discussed with you this exhibit was discussed in detail by 3 Dr. Wilson in which he said that half life was three to five 4 years. Did Mr. Heineman tell you anything like that, Dr. 5 Dost? 6 MR. HEINEMAN: Page number, sir? 7 MR. CARR: As I said, counsel, from Page 4 onward, 8 Page 2, 3, and 4, 5, Page 6, Page 7, Page 9. 9 Q. Dr. Dost, did you hear my question, sir? Dr. Dost, 10 you want to come back to me here? 11 A. I'm with y o u . 12 Q. Did you hear my question? 13 A. You asked me w h e ther I was aware of this 14 i n f o r m a t i o n . 15 Q. And that Dr. W i l s o n had so testified. He didn't 16 tell you that, did he, sir? 17 A. I did not recall getting that information. 18 Q. Doctor, since he d idn't -- do you know any reason 19 why he wouldn't tell you that Dr. W i l s o n testified, why he 20 would suggest to you that I told you something that Dr. 21 Wilson didn't testify to in fact? 22 MR. HEINEMAN: Objection, Your Honor, m a y counsel 23 approach the bench. 24 THE COURT: Yes, you may. 130 1 MR. HEINEMAN: You want to bring Page 4 with you, 2 Mr. Carr. 3 (At this time a co n f e r e n c e was had at the b e nch out 4 of the hearing of the jury.) 5 MR. HEINEMAN: Right here at the bottom. 6 THE COURT: On the bottom of -- 7 MR. HEINEMAN: The witness tells him -- 8 THE COURT: W a i t a second. I 'll read it. Okay, 9 I've read it. 10 MR. HEINEMAN: Your Honor, Mr. Carr is again 11 m i s l e a d i n g this witness. The tes t i m o n y that he said, oh, 12 from two, Pages 2 to 9, here on Page 4 it says, the question 13 is, now the sugges t i o n of the c a l c ulation there that a half 14 life is three to five years, again that is similar to what 15 you found yesterday in another exhibit that we discussed. I 16 don't have the number. 17 THE COURT: You d o n 't have to read it in the record. 18 T h a t 's f i n e . 19 MR. HEINEMAN: My objection, your Honor, is is the 20 witness came back and said in answer to that question, I 21 think I used the range of about three months to three years 22 in those other calculations. Mr. Carr acknowledges that the 23 witness has used different ranges at other places. The 24 cros s - e x a m i na t i o n or the redirect of this witness was 131 1 directed to the fact that when Mr. Carr examined him he told 2 you him that the Monsanto testimony was that the half life 3 was from three to five years. 4 MR. CARR: Yeah. 5 MR. HEINEMAN: And the redirect was directed to the 6 fact. It's clearly not what the Monsanto testimony was, that 7 the testimony of this witness was that it's from three months 8 to three years, and he says it again right here in the very 9 place where he's representing to this -witness that it didn't 10 occur. It's right here. 11 THE COURT: Mr. Carr. 12 MR. CARR: Your Honor, Mr. Heineman represented to 13 the witness that Monsanto's witness didn't t e s tify that half 14 life in human tissue fat tissue was three to five years and 15 he found where the witness said in one c a l c ulation that it 16 was three months to three years. He didn't at all tell the 17 witness that Dr. W i l s o n testified in a number of p l a c e s that 18 the half life was three to five years nor that there was an 19 exhibit. That's what I'm bringing out at this point. 20 MR. HEINEMAN: Well, I object to this last q uestion 21 of the witness as being m i sleading in that he is suggesting 22 to the witness that this testimony demonstrates that the 23 position is three to five years, and that's what the Itfilson 24 testified to. 132 1 THE COURT: Ob j e c t i o n is overruled. 2 Q. Dr. Dost, did you assume when you a n s w e r e d 3 questions for Mr. Heineman that Monsanto had not found in its 4 calculations that -- and in this Exhibit 1404 that the half 5 life in fat tissue was three to five years? 6 A. That's correct. 7 Q. What you thought Monsanto had c a lculated and the 8 only thing it had calculated was that the half life in fat 9 tissue was from three months to three years, isn't that 10 c o r r e c t , sir? 11 A. Yes. 12 Q. Now, do you know any reason why Mr. H e i n e m a n wou l d 13 not have given you Exhibit 1404 or why he wouldn't tell you 14 that Monsanto had calculated the half life in fat to be three 15 to five years? 16 A. I do not know. 17 Q. Is it possible that he wanted to get c e r t a i n 18 answers from you, sir, and that if you knew the full 19 testimony of evidence that Monsanto has put in here, that 20 your answer might be somewhat different than what you have 21 given here today? 22 A. No, sir, I don't think so. 23 Q. All right. Doctor, with regard to the half life of 24 three to five years that Mons a n t o has c a lculated in this 133 1 particular exhibit, that happens to be very close to the same 2 half life that Poiger and Schlatter related in M o n s a n t o -- in 3 Plantiff's Exhibit 1646, isn't that correct, sir? 4 A. Yes. 5 Q. Matter of fact, Poiger and Schlatter est i m a t e d a 6 half life of 4.95 years, didn't they, sir? 7 A. Yes. 8 Q. Now, does -- do you think that the M o n s a n t o -- you 9 stated that you believe Poiger's calculations are in error. 10 Do you believe that Dr. Wilson's calculations are in error? 11 A. Yes, I do. 12 Q. Well now, Dr. Dost, Dr. W i lson used or c a l c u l a t e d 13 this based upon the fact that there were five to 30 par t s per 14 trillion of TCDD found in range cattle, didn't he, sir? 15 A. That's correct. 16 Q. And Dr. Poiger's calculation was a c t u a l l y bas e d 17 upon a measured calculation, a meas u r e d finding of 18 radioactive TCDD, 2 , 3 , 7 , 8 - T C D D , did he not, sir? 19 A. Yes. 20 Q. And according to Exhibit 1646 -- do you h a v e 1646 21 in front of you? 22 A. Yes, I have. 23 Q. 1646, sir, shows that in a -- that the r a d i o a c t i v e 24 material was ingested by a male volunteer, doesn't it, sir? 134 1 A . Yes. 2 Q. And, Doctor, the article also tells you -- you took 3 some criticism of this study? do you recall that, sir? 4 A. Yes. 5 Q. You think it's not valid, and you think Dr. 6 Wilson's calculation is not valid, correct, sir? 7 A. That's correct. a Q. All right. A^nd, Doctor, this p a rticular Plantiffs' 9 Exhibit 1646 they took biopsies of fat tissue prior to 10 dosage, did they not, sir? 11 A. Yes. 12 Q. And you criticized earlier in direct examination, 13 redirect examination by Mr. H e i n e m a n that you didn't know or 14 they didn't know what TCDD was in the fat before the 15 ingestion of the sample; do you recall that, sir? 16 A. T h a t 's r i g h t . 17 Q. But in point of fact they tell you that they do 18 know, don't they, sir, they m e a s u r e d it? 19 A. I don't see any place where they m e a s u r e d the 20 baseline TCDD level in the fat. 21 Q. Doctor, don't you see that sentence, b i opsies of 22 subcutaneous adipose tissue were taken prior to dosage? 23 A. That's correct. 24 Q. As well as ten and 69 days after dosage? 135 1 A. That's right, but t h e y haven't -- 2 Q. Doesn't that mean to you, Doctor, that they knew 3 what was in the fat t i s s u e .b e fore he swallowed, before this 4 male volunteer swallowed the radioactive TCDD? 5 A. There is no evi d e n c e that they m e a s u r e d the TCDD 6 activity in that sample. 7 Q. Excuse me, Doctor, could you answer my question 8 please, sir? 9 A. You're asking me if they m e a s u r e d the TCDD level in 10 the fat prior to the -- 11 Q. What I'm asking you, sir, doesn't it indicate, this 12 document indicate that they b i o p s i e d the fat tissue before 13 they ever administe r e d the radioactive TCDD? 14 A. They cert a i n l y did. 15 Q. What would be the reason they took a b iopsy before 16 they gave them the r a d i oactive stuff? 17 A. They would do that for two purposes. One w o u l d be 18 to determine the total amount of TCDD in the tissues. The 19 other would be to det e r m i n e the amount of radioactivity 20 background that might be in that sample. 21 Q. Doctors Poiger and Sch l a t t e r are competent 22 scientists, aren't they, sir? 23 A. Yes. 24 Q. They been head of the institute, working w i t h the 136 1 Institute of Toxicology in Switzerland there for many, many 2 years, haven't they, sir? 3 A. Yes. 4 Q. T hey had been w o r k i n g w i t h T C D D -- well, you never 5 worked with TCDD, have you, sir? 6 A. N o . 7 Q. But they have w o r k e d with it for many, many years, 8 haven't they? 9 A. Yes. 10 Q. Do you reckon that they would know how to measure 11 or the significance of m e a s u r i n g TCDD in fat tissue before 12 the tests were under t a k e n ? 13 A. I'm sure they do. T h e y did not report it here. 14 Q. Doctor, this is a abstract. We don't have their 15 full study, do we, sir? 16 A. But that's an a b s o l u t e l y critical finding. 17 Q. Doctor, there's no q u e s t i o n . a b ou t that. It doesn't 18 say they didn't do it, does it, sir? 19 A. They have to have that information to make, the 20 c a l c u l a t i o n . 21 Q. Excuse me, Doctor, it d o e sn't say they didn't do 22 it, does it, sir? 23 A. No, it does not say t h e y d idn't do it. 24 Q. And you know these m e n to be competent scientists, 137 1 d o n 't you, sir? 2 A. Yes. 3 Q. And a competent scientist would do that, wouldn't 4 they, sir? 5 A. Yes. 6 Q. So can't you assume that these competent scientists 7 did that which you said competent scientists would do? 8 There's no mention in the abstract -- it's a very short 9 abstract, there's no mention in the abstract that they did 10 anything to the contrary, isn't that correct, sir? 11 A. That's correct. 12 Q. Then won't you assume that these gentlemen did 13 w h ich competent scientists should do? 14 A. No, sir, I cannot assume that. 15 Q. Doctor, if you know they're competent scientists, 16 why can't you assume that they would do what competent 17 scientists would do under such circumstances when you have 18 nothing in this document to the contrary? 19 A. It would take about five words to provide that 20 answer, and I'm sure t h e y would have provided it. 21 Q. Doctor, this is an abstract. 22 A. An abstract even so, sir, would p r o vide that 23 information. 24 Q. Doctor, an abstract is not supposed to give all of 138 1 the supporting data all, of the supporting work, the methods 2 and metho d o l o g y and all that to support a conclusion, is it, 3 sir? If they did, it would soon not be an abstract, wou l d 4 it, sir? 5 A. That's critical data, and I w o u l d a s s u m e -- 6 Q. No question about it, Doctor, it is crit i c a l data, 7 but that's not what I'm asking you. If they put all the data 8 in the abstract, it would soon not be an abstract, w o u l d it, 9 sir? 10 A. That's correct. 11 Q. Now, in an abstract don't -- woul d n ' t you give 12 these competent scientists the benefit of the doubt and 13 assume that they did which you said every com p e t e n t s c i entist 14 would do? 15 A. No, sir. 16 Q. Doctor, then you're saying that these m e n are not 17 competent scientists? 18 A. No, s i r , I'm n o t . 19 Q. You have no data in this abstract to the contrary, 20 i s n 't that right? 21 A. No, sir. 22 Q. Doctor, if they are competent scientists, they 23 would do that, wouldn't they, sir? 24 A. If they had done it, they w o u l d report it. 139 1 Q. Doctor, that's not what I asked you. T h e y did -- 2 we don't know whether they reported it, beca u s e we don't have 3 the study. You haven't seen the original document, have you, 4 sir? 5 A. No, sir. 6 Q. Then you don't know whether t h e y reported it or not 7 in that original document, do you, sir? 8 A. I've asked people who heard the paper. 9 Q. Doctor, ray question is you don't know w h e ther they 10 reported it or not, do you, sir? 11 A. I do not know directly. 12 Q. Doctor, there would be -- would t h e y -- you . 13 contemplate they would take a b iopsy b e f o r e they did the 14 study just because they want to inflict p a i n on the person 15 that's having the fat taken from his body? 16 A. No, sir. 17 Q. Or wanted to give him an extra scar? 18 A. No, sir. 19 Q. T hey would take that fat tissue for a s c i e n t i f i c 20 purpose, wouldn't they, sir? 21 A. Yes.. 22 Q. The only scientific purpose t h e y w o u l d take that 23 fat tissue for is to see how much TCDD is in it, isn't that 24 c o r r e c t , sir? 140 1 A. Yes. 2 Q. No other reason to take it, right, sir? 3 A. That's correct. 4 Q. So the only reason to take it is to see w h a t TCDD 5 is in it, they took it, you know they're com p e t e n t scientists 6 and yet you're still not willing to say that they did a 7 competent job in testing the -- in m a king their full report 8 or in their scientific study, is that r i g h t , sir? 9 A. That is correct, and I'll e x p lain if you wish. 10 Q. No, Doctor, I don't want an explanation, Doctor, 11 because I want it to rest right there, sir. W h a t y o u ' r e 12 saying is that they did this in an incompetent m a n n e r for no 13 particular purpose, they would not do that w h i c h c o m p e t e n t 14 scientists would do, is what you're saying, sir, t h a t ' s the 15 only conclusion that can be reached from that, Doctor. 16 A. Mo, s i r , t h a t 's not the only c o n c l u s i o n , s i r . 17 Q. Do you reckon they didn't do anyt h i n g w i t h that 18 adipose tissue that they took prior to dosage? 19 A. They undo ubtedly sent it for analysis. This is an 20 experiment in progress. This is an e x periment in progress, 21 it has not run long enough, as I explained earlier to get -- 22 Q. Doctor, they sent it for analysis, right, sir? 23 A. I'm sure they did. 24 Q. Okay. And then later on they took more samples, 141 1 didn 11 they,- sir? 2 A. Yes. 3 Q. Ten days later they took some? 4 A. Yes. 5 Q. And 69 days later they took -- 6 A. T h a t 1s c o r r e c t . 7 Q. They report the ten day adipose tissue l e v e l r don't 8 they, sir? 9 A. They report the radio isotope c o n c e n t r a t i on in the 10 fat. That has not hing to do w i t h the T C D D content of the 11 f a t . 12 Q. Doctor, all they want to do is report the half life 13 of the TCDD in the fat, isn't that right, sir? 14 A. Yes. 15 Q. The sign ificant part of this study is the half 16 life, right, sir? 17 A. Yes. 18 Q. And since you d o n ' t know how long the TCDD is in 19 the fat tissue to start with, you can't give a half life of 20 that, can you, sir? 21 A . N o . 22 Q. The only w a y you can give a half life is to put a 23 known quantity in there at a spe c i f i e d p eriod of time and 24 measure what happens to that known quantity, isn't that 142 1 correct, sir? 2 A. You must do it in a satisfactory time base. 3 Q. Could you answer m y question, sir? 4 A. That's correct. 5 Q. And what they did here was put a known quantity of 6 radioactive TCDD in this volunteer's body, correct, sir? 7 A. Yes. 8 Q. And they m e a s u r e d that, didn't they, sir? 9 A. Yes. 10 Q. And they also m e a s u r e d the feces, d i d n 't they, sir? 11 A. To determine how much was absorbed, yes. 12 Q. And doing those things, measuring the elimination 13 of the radioactivity on the feces, measuring in the urine and 14 in the adipose tissue, they concluded that there was a half 15 life of eliminatio n of 4.95 years, didn't they, sir? Vf 16 A. That was their conclusion. 17 Q. Yes. 18 THE COURT: Gentlemen, could you approach the bench 19 for a minute please. 20 (At this time a co n f e r e n c e was had at the bench out 21 of the hearing of the jury.) 22 THE COURT: I'm going to take a ten minute break 23 now. I want you to a d m o n i s h this w i t ness again. As I told 24 you before, I'm advising you this would -- 143 1 MR. CARR: I'm done w i t h that particular part of it, 2 but not with the document. 3 THE COURT: With that particular page? We'll take a 4 ten minute break at this time. 5 (The fol l o w i n g p r o c e e d i n g s were had in open Court.) 6 TI-IE COURT: Okay. Ladies and gentlemen, w e 1re going 7 to take a ten minute recess at this time. The admonishments 8 that I have given you earlier will apply during this break 9 also. Court's in a short recess. 10 (The fol l o w i n g p r o c e e d i n g s were had in open Court.) 11 MR. CARR: Could I have a Plaintiffs' Exhibit. 12 (Plaintiffs' Exhibit 164SA was marked for 13 i d e n t i f i c a t i o n . ) 14 Q. Doctor, I have labeled a piece of paper here 1646A 15 and put at the top of it P oiger and Schlatter, that's the IS authors of the art i c l e that we're discussing, right, sir? 17 A. Yes. 18 Q. The second line is 3H TCDD equals 105 nanograms. 19 T h a t 's the -- 20 A. Nanograms, that's a tenth of a microgram, a little 21 over a tenth of a microgram. 22 Q. Yes, and t hat's the dose described by Dr. Poiger? 23 A. The total dose yes. 24 Q. By the m a l e volunteer. Doctor, then I -- isn't 144 1 that correct, sir? 2 A. Yes. 3 Q. And I put underneath that the words e limination 4 feces first three days, feces thereafter, urine, half life of 5 TCDD. I didn't spell elimination very good, did I? And 6 elimination from the body, correct, sir? 7 A. Yes. 8 Q. Now, Doctor, in the -- what -- the w a y they 9 determined the half life of 4.95 years was not by measuring 10 the TCDD in the body fat, was it, sir? 11 A. Based on a fecal excretion data. 12 Q. Did you understand my question, Dr. Dost? 13 A. Yes. 14 Q. It was not based on m e a s urement of the b o d y fat, 15 was it, sir? 16 A. No, that's correct. 17 Q. It was based upon -- and by the way, you criticized 18 the M c N ulty study because they didn't make their d e c i s i o n 19 based upon feces elimination, correct, sir, do you recall 20 that? 21 A. Yes, they didn't correct the initial dose on the 22 basis of that. 23 Q. But here Poiger and Schlatter, they're measuring, 24 they're determining how much TCDD is leaving, what its half 145 1 life is by actually measuring the radioactive TCDD that's 2 eliminated from body -- in the body, d o e sn't it, sir? 3 A. Yes. 4 Q. Nov/, and in the first three days they m e a s u r e d how 5 much was excreted in the feces during the first three days of 6 their radioactive TCDD? 7 A. v Yes. 8 Q. How much was that sir? 9 A. 11 and a half percent. 10 Q. And thereafter the fecal e l i m i n a t i o n ra d i o ac t i v i ty 11 decreased to an average of .031 percent per day of the body 12 b u r d e n , c o r r e c t , sir? 13 A. Yes. 14 Q. And they also -- now that a v e rage w o u l d be over 15 what period of time, Dr. Dost? It tells you in the first 16 paragraph. 17 A. They followed for 125 days in the feces and 35 days 18 in urine. 19 Q. So v/hat they did for 125 days, a l i ttle b e t t e r than 20 a third of a year, they a c t u a l l y m e a s u r e d the r a d i o a c t i v i ty 21 of the TCDD that was being eliminated in the feces, did they 22 not, sir? 23 A. Yes. 24 Q. And then they also for 35 days t h e y m e a s u r e d in the 146 1 same way the TCDD being eliminated in the urine, correct, 2 sir? 3 A. Yes. 4 Q. Now, is there any -- what they found that after the 5 first with the exception of initial samples containing low 6 amounts, no TCDD activity, no radioactivity could be measured 7 at a detection limit of .01 percent of the dose per day, 8 correct, sir? 9 A. That's correct. 10 Q. But they nevertheless made an a s s u m p t i o n that there 11 was TCDD being eliminated at the limit of detection, didn't 12 they, sir? 13 A. Yes. 14 Q. That's erring on the safe side, correct, sir? 15 A. That's correct. 16 Q. So actually they assumed, while they didn't find 17 it, they assumed that .01 percent was being e l iminated daily, 18 did they not, sir? 19 A. Yes. 20 Q. For the period of time in q u e s tion? 21 A . Yes. 22 Q. So now -- and they c o n cluded based upon these 23 measurements, did they not, sir, that the -- based on the 24 actual data from the fecal elimi n a t i o n and the urine being 147 1 eliminated at the level of detection, they concluded that it 2 has a half life of elimi n a t i o n of 4.35 years, d i d n 't they, 3 sir? 4 A. That was -- yes. 5 0. So they did their c a l c u l a t i o n s of a half life in 5 the body based upon actual measurements of the -- of those -- 7 of that TCDD that was being eliminated from the body, didn't 8 they, sir? 9 A. Yes. 10 Q. Doctor is that a valid scientific method of doing 11 it? 12 A . It is in part. 13 Q. Doctor, you can either measure w h a t ' s left in the 14 body measuring the fat tissue or you can m e a s u r e what you 15 know is being eliminated from the body to arrive at a 16 conclusion of half life, isn't that correct, sir? 17 A Yes. 18 Q. There is no other way of doing it. It has to be 19 one of those two m e a s u r e m e n t s bases, correct, sir? 20 A. There is one other thing that's necessary. 21 Q. That is what, sir? 22 A. I would v/ant to know the specific a c t i v i t y of the 23 TCDD that is in the fat. In other words, we have to know 24 that the fat, that the TCDD that was a d m i n i s t e r e d has 148 1 distributed adequately throughout the body, and I presume 2 that they will determine that as their experiment goes on. 3 Q. Yes, that's what competent scientists would do, 4 would they not, sir? 5 A. Yes. 6 Q. And these are competent scientists, aren't they, 7 sir? 8 A. Yes, sir. 9 Q. And, Doctor, what they have done here is actually 10 given a half life of e l i m i n a t i o n that is the earliest half 11 life that they could determine. If in f a c t `their calculation 12 as to the urine, if their a s s u m p t i o n as to the e l i m ination 13 through the urine is wrong, that is, at detection level, then 14 the half life could be c o n s i d e r a b l y higher than 4.95 years 15 couldn't it, sir? 16 A. It could. 17 Q. So what they did if in fact instead of the urine 18 being eliminated at the level of .01 percent per day, because 19 the only standard t h e y used was their detection limit, if in 20 fact they had more s o p h i s t i c a t ed or if it was possible, if 21 there was a better m e t h o d of detection, and they found out 22 that instead of being .01 percent, it was .001 percent, or 23 .005 percent, the rate, the half life of TCDD in the b ody 24 would be subs t a n t i a l l y greater than five years, woul dn ' t it, 149 1 sir? 2 A. That would increase the period, yes. 3 Q. Is the answer to rny question y e s -- 4 A. Yes. 5 Q. It would be substantially increased? So what 6 they've given us then, sir, is the conservative scientific 7 opinion as to the half life in human beings, haven't they, 8 sir? 9 A. Yes based on the -- yes. 10 Q- T h e y ' v e done it based upon actual m e a s u r e m e n t of 11 the TCDD that they put in, the radioactive TCDD that's put 12 in, and the actual measurement of the radioactive TCDD coming 13 out, did they not, sir? 14 A. Y e s . 15 Q. All right. And, Doctor, if what y ou've said is 16 c o r r e c t , if there was radioactive TCDD in the body to start 17 v/ith -- 18 A. Excuse me, sir, I didn't say radioactive TCDD. A 19 background of T C D D . 20 Q. If there v/as b a ckground of TCDD in there to start ^* 21 with, sir, all they're measuring is the radioactive T C D D 22 that's coming out, aren't they, sir? 23 A. Yes. 24 Q. They're not mea s u r i n g this background TCDD coming 150 1 out, are they, sir? 2 A. T hey .hope they are, that's their intention. 3 Q. No, they hope to m e a sure that which they put in, 4 Dr. Dost. They're not trying to measure something other than 5 what put in, are they, sir? 6 A. Yes, sir, they are. 7 Q. Well, Doctor, if they measured -- if these are 8 their meas u r e m e n t s then, actually then the half life -- if 9 they're m e a s u r i n g more than what they put in, if they' erred 10 that way then in fact this half life could be as much as 11 double, couldn't it, sir? 12 A. Mo, s i r . 13 Q. Doctor, they meas u r e d actu a l l y what's coming out, 14 didn't they, sir? 15 A. Yes. 16 Q. And only that w h i c h is coming out. T h e y can not 17 m e a s u r e more than coming out, can they, sir? 18 A. I don't understand you, sir. 19 Q. They can only measure the amount coming out, can't 20 they, sir? 21 A. That's correct. 22 Q. And v/hat they have meas u r e d coming out, w h atever 23 the source m a y be, if half of that w h i c h is coming out is 24 TCDD that they did not put in there, then the half life of 151 1 the TCDD that they put in there would be double 4.95 years, 2 w o u l d n 1t i t , sir? 3 A. No, sir. 4 Q. Doctor, y o u 1know that -- well, what would it be if 5 it wouldn't be double? 6 A. The idea of the experiment is to introduce labeled 7 TCDD, have that labeled TCDD distribute w i t h the TCDD that is 8 already in the body if it is there, it m a y or ma y not be. 9 Presumably the labeled TCDD labels the total body pool of 10 TCDD, and that pool is then represented by the label, and 11 that's the reason why I'm concerned that we do not k now the 12 concentration of label that is actu a l l y in the TCDD of the 13 f a t . 14 Q. Well, Doctor, all that would do would be to m ake 15 the half life longer. They're measuring -- if part of this 16 TCDD that was eliminated here was TCDD that t h e y did not put 17 in, sir, that if it's mixed and taking some other T C D D out, 18 then they haven't measured just the TCDD, they've measured 19 more than the TCDD they put in, have they not, sir? 20 A. Not necessarily, sir. 21 Q. Doctor, is there any other e x p l a n a t i o n for it? Is 22 there, sir? 23 A. Yes. *24 Q. What is the other e x p l a n a t i o n , Doctor? 152 1 A. If the T C D D has not mixed w i t h the T C D D -- if the 2 labeled TCDD-- 3 Q. Let's stop on that for a moment. If it has not 4 mixed, then what they're measuring is the radioactive TCDD 5 put in, correct, sir, b e c ause they're m e a s u r i n g the 6 radioactivity, sir, are they not? 7 A. They're m e a s u r i n g the radioactivity. 8 Q. So if it did not mix, then the half life of the 9 TCDD, the radioactive TCDD that t h e y put is 4.95 years if it 10 did not mix, correct, sir? 11 A. Not necessarily. 12 Q. Tell me why not, sir. I t h o u g h t th a t ' s w hat you 13 just got through saying. 14 A. I did. 15 Q. Well then, Doctor, if t hat's what you just got 16 through saying, then let's pass to the next point, b e c a u s e I 17 don't want to go down another trail? 18 A. I'm sorry, sir. 19 Q. Once you tell me s o m e t h i n g is so, Dr. Dost, I have 20 got to act upon t h a t . 21 A. All right, excuse me. I thought that what I had 22 told you was that dep e n d i n g on the w a y the l a b eled T C D D that 23 was introduced, the w a y it d i s t r i b u t e d in the b o d y w o u l d have 24 an influence on the rate at w h i c h it comes out. "If it w ere 153 1 to go to a site where removal is slow, and ^ it doesn't mix, o we would get a change in one direction. If on the other hand, 3 it were as you are suggesting, separating, remaining separate 4 and coming out by itself, without respect to the TCDD that 5 was already in the animal, then that might imply a longer 6 half time. 7 Q. Doctor, that's not what I suggested to you at all. 3 What I asked you, sir, if it did not mix w ith the other TCDD o s in the body as you've s u g g ested v/hat they w anted to do was to 10 get it mixed with the other TCDD, if that didn't occur, then 11 what they have measured here is just the radioactive TCDD 12 coming out, correct, sir? 13 A. That is correct. 14 Q. And the r a d i o activity of that TCDD they put in is 15 -- has a half life of 4.95 years under that assumption, isn't 16 that correct, sir? 17 A. Yes. 18 Q. And so at the very m i n i m u m the TCDD that they put 19 in has a half life of 4.95 years, correct, sir? 20 A. Again it depends on the mixing, but for the actual 21 amount, for the actual amount of radioactivity that they put 22 into the body, yes, that's correct. 23 Q. Yes, it is correct. And, Doctor, if it mixed with 24 the other TCDD, and v/hat they're m e a s uring here and adding up 154 1 is the other TCDD as well, then the half life of TCDD in the 2 body is more than 4.95 years, isn't it, sir? 3 A. I don't know, sir, it d e p ends entirely on how it is 4 mixed. 5 Q. Doctor, on the a s s u m p t i o n that gave you, if it's 6 mixed in any extent, if what they're me a s u r i n g is something 7 in addition to what they put in, then the half life of TCDD 8 in the body is more than 4.95 years, isn't it, sir? 9 A. No, sir. 10 Q. Doctor, they can only measure the radioactivity -- 11 the radioactivity that they're m e a s u r i n g here is what ;they 12 put in, right, sir? 13 A. That's correct. 14 Q. It has a m i n i m u m life of 4.95 years, doesn't it, 15 sir? 16 A. Accordin g to their calculation, correct. 17 Q. And any other T C D D more than that that's coming out 18 takes away from the r a d i oactive TCDD coming out and supplants 19 it with some other TCDD, d o e sn't it, sir; therefore, there is 20 more radioactive TCDD in the b o d y not being eliminated than 21 this chart would show, isn't that correct? 22 A. No, sir, if it's diluting, you're bringing out more 23 TCDD, other TCDD along w i t h it. 24 Q. At the v e r y minimum, Doctor, the half life is 4.95 155 1 years, and if i t 's diluting it, could be more than 4.95 2 years, isn't that correct, sir? 3 A. If it's diluting, that's possible, but it could be 4 either way. 5 Q. Doctor, there is no w a y that the half life could be 6 less than 4.95 years, because they are actually measuring the 7 radioactive material that they put in. 8 A. They're measuring the radioactive material that 9 they put in. 10 Q. Isn't the answer to my question, yes, that's 11 correct, Mr. Carr? / 12 A. For the labeled, yes. t ^ 13 Q. And the half life of the labeled TCDD could be more 14 than 4.95 years, couldn't it, sir? 15 A. It could be. 16 Q. So would it be fair to put at least 4.95 years t 17 here, sir? 18 A. I believe that I described ways in w h i c h it could 19 be less. 20 Q. Well, I don't believe you have, Dr. Dost. I 21 m i s u n d e r s t o od something. This is measuring only that which 22 was put in as far as radioactivity is concerned, isn't it, 23 sir? 24 A. Speaking about the radioactivity, per se, that's 156 1 correct. 2 Q. So it's at least 4.95 years, correct, sir? 3 A. For the radioactivity, yes. 4 MR. CARR: Nov/ I'll offer Plantiffs' Exhibit 1646A 5 into evidence. 6 THE COURT: Any objections? 7 MR. HEINEMAH: Well, sure. May we approach the 8 bench? 9 (At this time a conference was had at the bench out 10 of the hearing of the jury.) 11 MR. CARR: The court probably needs to see it. 12 THE COURT: Wait a minute until he gets up here. 13 MR. HEINEMAM: The witness is really c a r e f u l l y 14 restricting the basis upon which he agrees w ith that chart, 15 and the basis upon which he agrees with that chart is not on 16 the chart, and the 4.95 applies only to the radio laoeled 17 part that we put in. That's what the w i t n e s s agrees to. 18 THE COURT: That's all that's on the chart. 19 Objection is o v e r r u l e d . 20 MR. HEINEMAM: May I speak further on the point? 21 THE COURT: Oh, s u r e , I didn't know you had anything 22 further to say. 23 MR. HEINEMAM: The witness has talked about the fact 24 that TCDD may come out, which may itself be radio labeled, 157 1 because it has gone into a pool and the radio labeled has 2 itself labeled other TCDD. 3 HR. CARR: That's right. 4 MR. HEINEMAN: He's also said that there m a y be 5 TCDD that comes out. 6 MR. CARR: That's right. 7 MR. HEINEMAN: That.is not radio labeled. 8 MR. HEINEMAN: What he's saying is the 4.95 years 9 is at least the half life only in the TCDD, the radio labeled 10 that was put in and brought back out, that's what the witness 11 said. That's not on the chart. 12 MR. CARR: That's what it is on the chart. 13 MR. HEINEMAN: That's not w h at's on the chart, and 14 the jury six months from now or whenever it is w h e n this 15 thing is argued to them is not going to have that info r m a t i o n 16 on the chart, and I object to it. 17 THE COURT: I think it accurately reflects what he 18 testified to. Objection is overruled. It's a d m i t t e d over 19 objection. 20 (The following proceedings were had in open Court.) 21 Q. Now, Doctor, in the McNulty, the m o n k e y study that 22 was referred to, do you have Plantiffs' Exhibit 1647 in front 23 of you, sir? 24 A. Yes. 158 1 Q. And, Doctor, you also c r iticized this r e p o r t , did 2 you not, sir? 3 A. I disagreed with the finding. 4 Q. Well, Doctor, M c N u l t y again is a c o m p etent 5 scientist, and he's one of these scientists that's known 6 world wide, isn't he, sir? 7 A. Yes, he's a good scientist. 8 Q. And he knows how to test for adipose tissue for 9 TCDD contaminant? 10 A. Yes. 11 Q. And he has reported here that his half life, 12 apparent half life in fat for the animal is about a year, 13 c o r r e c t , sir? 14 A. Yes. 15 Q. Now, Doctor, I think you cr i t i c i z e d this study 16 because he didn't give the w eight of the animal, d i dn't you, 17 sir? 18 A. That's a minor matter. That has n o t h i n g to do with 19 the calculation. 20 Q- Doctor, it m a y -- It indeed is a minor matter, but 21 that was one of the reasons you criti c i z e d it, wasn ' t it, 22 sir? 23 A. I just men t i o n e d that I haven't seen -- 24 Q. Doctor, can you answer my question. You said in 1 several places, you discussed and criticized the fact that he 2 didn't give the weight of the animal, didn't you, sir? 3 A. Yes. 4 Q. Now, after m aking that statement did you re-read 5 the article and find out that he told you that the -- after 6 two years the weight of the m o n k e y was about the same as it 7 had been four days after the dose? 8 A. Yes. 9 Q. You did then learn that, didn't you, sir? So in 10 point of fact, sir, he has given you the relevant weight of 11 the monkey, hasn't he, sir? 12 A. As a matter of fact, sir, he listed the weights in 13 this table. I didn't see them. 14 Q. But more than that he gave you the relevant weight 15 of the monkey, didn't he, sir, it was same b e f o r e and the 16 same two years later, right? 17 A. Yes, I believe I commented on that in m y testimony. 18 Q. And, Doctor, he also said that the c o n c e n t r a t i o n of 19 the fat in that animal two years later was r o u ghly 25 percent 20 of the TCDD content of the fat of that animal at the day four 21 level, didn't he, sir? 22 A. Yes. 23 Q. Doctor, that is about as precise as you can get in 24 a statement that -- where he's d e scribing half life, isn't 1 that right, sir? You can't get more precise than that, can 2 you, sir? 3 A. Yes, sir, you can. 4 Q. Doctor, he measured the c o n c e n t r a t i on of the fat of 5 the TCDD in the fat, didn't he, sir? 6 A. Yes. 7 Q. And he meas u r e d it, he said it's 25 p e r c e n t of what 8 it was after four days, right, sir? 9 A. Yes. 10 Q. Doctor, doesn't that tell you, sir, then that the 11 half life of TCDD in fat in this animal was about a year? 12 A. Wo, sir, it does not. 13 Q. Well, is 25 percent of the T CDD still there, sir, 14 two years later? I'm sorry, yeah, two years after the TCDD 15 was given to theanimal, wasn't 25 percent of it still there? 16 A. 25 percent of the original concentration, yes. 17 Q. And that would suggest, does it not, sir that the 18 half life of one year if a fourth of it is still there two 19 years later, the half life would be what, Doctor? 20 A. I have no idea what the half life really is in fat 21 in this animal on the basis of the data that's here. 22 Q. Doctor, you have added something. I asked you did 23 he not make a statement that the half life, that he m e asured 24 the concentration of TCDD in the fat as 25 percent of the day 1 four level? 2 A. T h a t 's correct. 3 Q. Doctor, that means that he actually meas u r e d it and 4 found 25 percent of it still there two years later, correct, 5 sir? 6 A. That's correct. 7 Q. And that that 25 percent, the other 75 percent 8 d i s a ppeared in that preceding two years, didn't it, sir? 9 A. I don't b e l i e v e that this data tells us that. 10 Q. Doctor, now you're saying again that you don't 11 beli e v e the data tells you that. Doctor, this is a letter to 12 the editor, it's a page and a quarter long, isn't it, sir? 13 A. Yes. 14 Q. It doesn't attempt to give you all the data that a 15 long article would give you, does it, sir? 16 A. I believe it's given us all of the data that he 17 t o o k . 18 Q. Doctor, how can you possibly know that? 19 A. I don't -- 20 Q. The man took levels over a period of two years and 21 you have one short measurement there after 215 days. He 22 doesn't give you the measurement after the two years at all. 23 He tells you what he found. There is no information there as 24 to the amount of TCDD in the fat two years later, is it, sir? 1 A. The time p eriod here is two years later, 715 days, 2 and then there are a number of-- 3 Q. I thought that was a two? 4 A.' There are a number o f 'm e asurements in b e t w e e n -- 5 Q. Excuse me, Doctor, let me get that point straight. 6 Is that -- you read that as a 7? 7 A. That is 715. 8 Q. 715? 9 A. Yes, sir. 10 Q. Well, then he gives you the parts per trillion in 11 the fat tissue then 715 days later, doesn't he, sir? 12 A. Yes. 13 Q. T h a t 1s a hundred parts per trillion, correct, sir? 14 A. Yes. 15 Q. Doctor, what more data could he poss i b l y give you, 16 sir? 17 A. lie has given us a great deal of data here. 18 Q. Indeed he has. My question is, sir, what more data 19 could he give you to support his statement that the half life 20 in this m o n k e y was a year, because he found 25 percent of the 21 TCDD still there 715 days later? 22 A. Well, sir, he found at 64 days 2,000 parts per 23 trillion, and this is an animal that had lost most of its 24 fat. It c o n c e n t r a t e d it. I have no idea what was going on in 1 the w hole animal d uring that period, and if we look at the 2 fat concentration, yes, in fact there is a difference, there 3 is only about a quarter of the amount at 715 days that there 4 was at four or eight days. 5 Q. Doctor, d o e s n ' t that tell you that in this animal 6 the half life of TCDD in fat is about a year? 7 A. If we ignore all the intervening information, I 8 suppose we could draw that conclusion. 9 Q. The inte r v e n i n g information does not take a w a y from 10 that conclusion, does it, Dr. Dost? All it tells you there 11 are other things going on in this animal, this animal got 12 real bad sick, lost a lot of weight -- 13 A. Yes. 14 Q. Made a comeback. Those things are being told to 15 you, but it doesn't take away from the fact that somehow or 16 other 25 percent, w i t h all these things going on in this 17 animal, 25 percent of the TCDD it started out w i t h is still 18 there in the fat, isn't that right, sir? 19 A. Yes. 20 Q. And, Doctor, insofar as the diatomaceous earth used 21 at Sturgeon, do you recall your testimony as to that? 22 A. Yes. 23 Q. This ben t o n i t e in point of fact is a v e r y permeable 24 substance, isn't it, sir? 1' A. It has a very, v e r y high surface area. I don't 2 know-- what do you mean by permeable? 3 Q. Water will flow right t h r ough it. 4 A. Yes, it serves as a filter. 5 Q. And it w o n ' t stop water at all, will it, sir? 6 A . No. 7 Q. It's a filter for particles, isn't it, sir? 8 A. It's a filter for molecules. 9 Q. Well, mo l e c u l e s or particles, it d o e sn't filter, it 10 doesn't stop the w a t e r m o l e c u l e s from going through, does it, 11 sir? 12 A. No, sir. 13 Q. Matter of fact, d i a t o m a c e o u s earth, that w h i c h t hey 14 put on this railroad track is used, is c o m m o n l y used in 15 swimming pool filters, isn't it, sir? 16 A. Yes. 17 Q. And it w o u l d not prevent water from g e t t i n g in to 18 the track in getting into the p a s sing track, would it, sir? 19 A. I don't think it would, no. 20 Q. It would n ' t stop them one moment, would it, sir? 21 A. I have no idea. I don't think it would impede the 22 w a t e r . 23 Q. If they told us that the purp o s e of p u t ting this 24 sealer on was to p r e vent the water from getting under the 1 passing track and causing the material under the passing ' 2 track to spread out with the water, they would have been 3 mistaken in telling us that, wouldn't they, sir? 4 A. I don't know how compact it was. 5 Q. Would you answer my question, Doctor? D A. Well, I would assume that w a t e r w o u l d go through 7 it. I don't know everything that t h e y -- 8 Q. Could you answer my question, Dr. Dost? If they 9 told us that they put this diatomaceous earth, this bentonite 10 sealer on the railroad track to prevent water from going down 11 in the passing track, they would have b e e n mistaken, wouldn't 12 they, sir? 13 A. I guess if it was only bentonite, yes, sir, that's 14 c o r r e c t . 15 Q. Well, that's all that Mr. Hein e m a n told you they 16 put on it, didn't they, sir? 17 A. I don't remember any other components. 18 0. Well, that's all he told you, w a sn't it, sir? 19 A. Yes. 20 THE COURT: Mr. Carr, is this a good point to break 21 for the day? 22 HR. CARR: Yes, Your Honor. 23 TIIS COURT: We'll break at this time. We'll resume 24 again tomorrow morning at 9:30. I would remind you, as I do 1 on any overnight break that y o u 1re not to d i s c u s s this matter 2 among yourselves or with anyone outside the jury panel, 3 you're not to read, listen to, or watch anything about this 4 case in particular or subject matter in general in any of the 5 media. Thank you for your attention and cooperation. 6 Court's adjourned. 7 Gentlemen, could I see you in chambers in about 8 five minutes. 9 (At this time the following p r o c e e d i n g s were had in 10 chambers out of the hearing of the j u r y . ) 11 THE COURT: Let the record indicate that we're in 12 chambers outside the presence of the jury to argue 13 defendant's motion for leave to call Dr. Kimbrough. I've 14 read your motion and affidavit and memorandum. W i t h o u t 15 repeating, anything that you want to say or add or bring up? 16 MR. NASSIF: Your Honor, I 'm going to be at bat here 17 okay. 18 THE COURT: Okay, fine, sure. ' 19 MR. MASSIF: There are a couple things we do want to 20 add, Your Honor. First of all, p l aintiffs have no objections 21 to several items if you read their brief, and I p r e sume -- 22 THE COURT: I did this afternoon. 23 MR. MASSIF: I presume that Dr. K i m b r o u g h will be 24 able to testify in the areas that they have no objection. J 1 And in addition to that, Your Honor, we think there are other 2 areas that fit these categories that plaintiffs have no 3 objection to which go beyond the items that they've listed, 4 and to give you an example, Your Honor, plaintiffs -- 5 plaintiffs have objected to any information on any 6 conversations that Dr. Kimbrough had with either Harry Gilmer 7 and Dr. Kleopfer, and one of the bases that they have 8 objected to that is or one of bases for their argument is ry\ that these c onversations have already been e stablished by 10 other witnesses and by Defendant's Exhibit 1193. li There are additional conversations that she has had 12 with peop.'.e from QSIIA, Dr. David Logan in particular, and 13 other individuals which are not in evidence in this case, 14 which go specifically to the Sturgeon incident, whi c h v/e 15 believe are -16 THE COURT: In what respect? 17 MR. MASSIF: They go specifically to the issues of 18 the levels that v/ere found in the blood of railroad w o r kers 10 at Sturgeon. They go co the issue of tests that she 20 performed or the Center for Disease Control p e r formed to 21 determine whether or not the calculations by Wri g h t State 22 University, which have been the subject of much d i scussion in 23 this case already, whether or not the calculations by Wr i g h t 24 State University were in fact correct when they reported 1 levels of 2 , 3 , 7 , 8-TCDD in the blood of railroad workers. 2 She was asked by O S H A to give some assistance in 3 determining whether or not those calculations were, in fact, 4 accurate, and those conversations, although these are issues 5 in the case, the levels in these workers' bodies, as well as 6 whether or not Wright State did accurate analytical w o r k , 7 those are issues in this case, her c o nversations with OSHA 8 along in chis area and the work that her agency performed n-/ have not been b r o ught out in this case at ail to dace. 10 There are additional areas which we consider to be 11 fact items all raised in the context of her review of the 12 Sturgeon situation, which we feeL she should be aole to 13 testify on having to do with analysis that was performed of a 14 chiid that was -- that suffered respiratory arrest nine days 15 after the spill. She was consulted and asked by a physician 16 to another c o n s e r v a t i o n which has not been brought out, she 17 was consulted and asked by the child's physician to perform 18 some a d d itional a n alytical work and to review some clinical 19 findings, w h i c h she did perform, which she did do, and those 20 results. We feel, are facts which are directly applicable to 21 this case, w hich she should be allowed to testify about. 22 In addition, under her direction samples of OCP 23 crude were analyzed from the Sturgeon site. I'm sorry, Your 24 Honor, serum samples from the Sturgeon -- from Sturgeon 1 people involved in either the cleanup at Sturgeon or living 2 in the town of Sturgeon, serum samples were analyzed for 3 OCP-crude at her direction or by her office. 4 In addition to what we still consider to be factual 5 information, chat is, the fact that she conducted a test by 6 -- of material from the tank car, a rabbit ear test of the 7 material from the tank car. Plaintiffs have agreed that she 8 can testify about Plaintiffs' Exhibit 1665 and whether she 9 peer-reviewed that document, there's no issue there. 10 lie believe, Your Honor, that she should be able to J1L1-l testify on the issue of whether in the CDC calculation which 12 she was the p r inci p a l author of the one part per billion 13 figure, whether that calculation, in fact, takes 14 volatilization into account. We believe that's a fact that 15 she is in a p ositi o n to testify and does not require an 16 expert opinion. In a d d i t i o n -- 17 THE COURT: You say that does not require an expert 18 opinion? 19 MR. IIASSIF: No, it's only what the calculation that 20 CDC uses has or takes into account, what that calculation, 21 it's like a m a t h e m a t i c a l formula, and I'm asking her what one 22 part of that -- w h e t h e r that mathematical formula includes a 23 factor for volatil i z a t io n . I'm not asking for her for why it 24 i n c l u d e s . 1 THE COURT; I un d e r s t a n d v/hat y o u 1re saying. I 2 understand what you're saying. 3 MR. NASSIF: Do you want me to respond directly to 4 plaintiffs' reply brief in addition to the responses? 5 THE COURT: Whatever you want to do. If you want 6 to7 fine. 7 MR. NASSIF: Let me just make some real quick run 8 through of plaintiffs' reply brief, Your Honor. Your Honor, 9 for the record I 've a l r e a d y stated that 1193 does not contain 10 her c o n v ersations w i t h OSHA. If you will recall 1193 -- 11 THE COURT: T h at's what you said. 12 MR. NASSIF: 1193 is her discussions with the EPA, 13 contains some info r m a t i o n regarding her discussions, but does 14 not, 1193 does not c o n t a i n the full b r e adth of her 15 conservations with the EPA., Based -- the p l aintiffs object 16 to the fact in p a r a g r a p h five, Your Honor, that these -- they 17 object to the p u b l i s h e d statements. 18 THE COURT: Umhm. 19 MR. N A S S I F : -- As opinions. Based on our research, 20 Your Honor, and based just upon our understanding of the law, 21 these opinions are in evidence they, have been interpreted by 22 experts in this case, they have been commented upon by 23 experts in this case and by lay v/itnesses as well, 24 nonexperts. Asking her to give the reasons, the basis for 1 those opinions once the opinions are in evidence, we do not 2 believe constitutes an expert opinion. So the fact that the 3 published statements or the opinions themselves may be expert 4 opinion, they are already in the case. Her basis for those 5 opinions we do not believe constitutes based upon the cases 6 we have cited to you, expert opinion. 7 THE COURT: I've read them. 8 MR. MASSIF: Okay. In addition, opinions that she 9 has given in the past, which she has, you know, she has 10 relayed to either other a g e n c y people, we have not been able 11 to get those opinions in. , We still believe, Your Honor, that 12 these past opinions, although we can give the information 13 leading up to the request for her opinions, we don't believe 14 these past opinions are being introduced for the truth of -- 15 for their truth as a typical expert opin i o n w o u l d be. We 16 believe that these -- evidence of her response, whether it 17 was in the form of an opinion or hot, done in the past 18 regarding the Sturgeon situation, we clea r l y b e l i e v e we are 19 entitled to get into evidence her. side of the conversation. 20 And on Pa r a g r a p h 8, Your Honor, having to do with 21 -- Paragraphs 8 and 9 having to do w i t h p r e j u d i c e to the 22 plaintiffs. Experts from both side in this case, Dr. Carnow, 23 Dr. Silbergeld have testified regarding Dr. K i m b r o u g h 's 24 opinions and her studies. Our experts have testified about 1 them as well- It borders on surprise to me for the 2 plaintiffs to argue prejudice as a result of their inability 3 to know her position on dioxin. I mean, there are exhibits 4 in this case which reveal her position on dioxin. If they're 5 unfamiliar with her position on dioxin at Sturgeon, we have 6 produced documents to them, which disclose that position, and 7 there may be additional, a fevi additional documents, but it's 8 certainly not anything, we could not disclose in time for 9 them to prepare for her testimony. 10 Furthermore, there have been other experts in this 11 case where they have not taken a deposition prior to this 12 expert coming on to the stand. Dr. Wendell Kilgore, who Mr. 13 Carr describes as our chief expert on toxicology, was never 14 deposed by the plaintiffs in this case. T h e r e ' s t e s t i m o n y in 15 this case that Dr. Kimbrough and Dr. S i lbergeld are not only 16 known to each other, they are acquaintances, p e r h a p s even 17 beyond aquaintances by Mr. Shrov. Obv i o u s l y Dr. S i l b e r g e l d 18 can provide the plaintiffs with any assistance they might 19 need in preparing for her testimony and in a s s e s s i n g her 20 position on various subjects. 21 Finally, if they want to take her deposition, as 22 far as we are concerned, that is something that's available. 23 vie will arrange it at a time during a court break. She does 24 not -- we want her to testify before the medical case begins. 1 However, if she can testify as an expert witness, as we 2 believe she should be able to, then a deposition can be 3 arranged at some mutually convenient time. 4 Getting to the point, the final point, Your Honor, 5 and I think really if you've read this Curry d e c i s i o n -- 6 THE COURT: I have read all cases cited. 7 MR. MASSIF: Okay. You read this Curry decision, we 3 believe that the reasons that the Appellate Court stressed in 9 Curry for saying that it was not an abuse for the Judge to 10 a llow the expert witness to testify in that case d e s pite the 11 fact he had not been disclosed are on all fours w i t h Dr. 12 Kimbr o u g h ' s position in this case. 13 The factors to be considered are outl i n e d in the ; 14 case. I don't have to go over them, but we b e l i e v e Dr. 15 Kimbrough is on all fours. We believe there's even a stronger 16 argument for her testimony in this case, b e c a u s e b o t h sides 17 have engaged in interpretation of her opinions, b o t h sides 18 have mentioned her repeatedly, she's become a very prominent 19 figure in this litigation, and yet there's been no direct 20 testimony as to her position on this incident, and for that 21 reason we think it's critical, and X 'm going to have to ask 22 Bruce, my understanding, and maybe I 'm v/rong on the issue of 23 our opportunity to subpoena her in 1983, mv u n d e r s t a n d i n g was' ' 24 we were informed at some point that the Center for Disease * 1 Control would not honor such a subpoena. Do you recall that, 2 Bruce? 3 MR. RYDER: T hat's correct, that's my recollection. 4 MR. MASSIF: We inquired-- this addresses 5 plaintiffs' motion -- we inquired as to whether or not -- 6 and, Your Honor, I got this motion, plaintiffs' motion at 7 2:45, so I haven't been able -- 2:45 today-- 8 THE COURT: That's when I got it, too. 9 MR. MASSIF: Okay, fine. I haven't been able to 10 confirm that we were denied or we were told they would deny 11 her -- access to her in the form of a d e position if we 12 subpoenaed them. 13 THE COURT: I got that impression from the original 14 memorandum or affidavit or something. That was the 15 impression I got w h e n I read your o r iginally submitted 15 m a t e r i a l s . 17 MR. NASSIF: Yes, and that was confirmed by the 18 Center for Disease Control's attorney when they changed their IS position. 20 THE COURT: I read that letter, the letter you 21 attached. That was the Impression that I got. 22 MR. MASSIF: We inquired on that point, your Honor, 23 at that time, and we were told that they would not honor it. 24 THE COURT: Mr. Carr, do you have anything to you 1 want to say? 2 MR. CARR: Yes, Your Honor. The -- going a little 3 in reverse order. The letter they refer to an is a request 4 that she come -- it's an October 4th letter he refers to-- 5 obviously the -- requesting that she appear in St. Clair 6 Coun t y in this case to testify. There is no w a y that any out 7 of state witness can be required to appear herein. Whether 8 there is or is not a policy on the part of the Department of 9 Health and Human Services to allow or not allow their 10 employees to t e s ti f y in cases has got n o t hing to do with the 11 issues in this case. T h e y are subject to the same rules as 12 every other p e rson in this U n i t e d States is. 13 Dr. Renate Kimbrough, if they w a n t e d to take her 14 deposition, there are meth o d s w h e reby that d e position can be 15 taken if they do not agree to it voluntarily. There have been 16 other federal witn e s s e s in this case whose depositions have 17 been taken. T hey could not require them to come here, but we 18 went there, there's Kloepfer, there's Gilmer, there's 19 Fairless, there's Straten, there's, oh, some others I can't 20 think of right now whose depositions, who s e 1 evidence , 21 depositions were taken, and their policy is that these people 22 will not appear in court, alth o u g h they m o d i f y that policy 23 apparently for Mon s a n t o in the case of Dr. Kleopfer, but that 24 was their poli c y then. T h e y had a lawyer at the each of those 1 evidence depositions that were taken. 2 All people so far as I know from the president of 3 the United States down to the lowest level civil service 4 employee is subject to suopoena and their d e p o sitions may be 5 taken. I don't know of any act of Congress or anybody else 6 that exempts any federal employee, possibly the CIA, from 7 having a deposition taken. There's p lenty of means to do it 8 if they felt it was important in their case to do it, and 5 there's nothing in either the letter or in anything else to 10 suggest that they even tried to take an evidence deposition. 11 I didn't get anything from the affidavit. The affidavit is 12 very careful of Mr. Ryder. What it says is, and we know Mr. 13 Ryder from way past, it says I was informed I contacted and 14 attempted to obtain p e rmission for Dr. Renate Kim b r o u g h to 15 testify at the trial of this matter. I interpret that to 16 mean what it -- exactly what it says, testify at this trial. 17 Nothing in anything they have filed to date suggests that 18 they even tried to get an evidence deposition and that they 19 were rejected after having exercised the care required by our 20 courts in getting such testimony. 21 There's nothing in their affidavit to suggest that 22 they exercised any such care other than ask if she v/ould 23 appear at trial, and the suggestions of counsel on these 24 other points, everything that he has said that they want to 1 use her for is as an expert w i t ness and to give expert ')4 testimony relating to the issues in this case. The court's 3 requirement that we be told the names of the experts who are 4 going to testify in this case was not limited to the experts 5 who are going to give opinions. These g e n t l e m e n supplied us 6 a list of some 53 experts I believe that -- I think that's 7 the number that they identified as poss i b l y being called in 0 this case. Kioepfer was one of them and Gilmer was one of 9 them. All kinds of expert witnesses were identified. 10 Kimbrough was not among those expert w i t n e s s e s identified. 11 Everything else that he talked about, the serum 12 levels from the Sturgeon people, the tests of material from 13 che tank car, whether the -- whether the CDC document takes 14 volatilization into account, whether a child suffered 15 respiLatory arrest and the analytical findings dealing with 16 that respiratory arrest, the T CDD levels, whether or not they 17 were accurate, and the c o n v e r s a t i o ns she had w i t h OSHA, all 18 of these things are relevant only if she is an expert. If 19 she were not an expert, any mention that she makes on any of 20 these things would have no w e ight w h a t s o e v e r . T hey obviously 21 want to use her expertise here on issues that they believe 22 would favor their side. If she weren't an expert, they 23 wouldn't even come close to w a n t i n g her to come to trial. 24- Her testimony as to the c r i t i c i s m or c a lculations of the 1 Wright State University, correct or not, these are statements 2 as an expert and dealing with scientific theorums, theories 3 and facts which only an expert can testify to. 4 I think everything else has been said, Your Honor. 5 I have nothing further to say. / 6 THE COURT: Do you want make any kind of short reply 7 or not. 8 MR. MASSIF: Well, Your Honor, I think the issue Q that Mr. Carr has not addressed is the issue of the 10 compelling nature of her testimony in this case and the fact 11 that we feel it's so compelling that the court should a l low 12 her to testify as an expert. He has not a d d ressed the fact of 13 the reliance and statements made by other w i t n e s s e s regarding 14 what her opinions are and what the basis of her o p inions are, 15 including whether or not she concluded that the 6 year old 16 child in the horse arena case had chloracne. I think these 17 things are critical to this case. 18 It's a two year old case, it is not the typical 19 situation where one might expect to be on your guard on or 20 notice that if you don't n s t the five experts you plan to 21 call, you do so at your peril. 22 THE COURT: Wait a second. Why would length have 23 anything to do with compliance with a court order? 24 MR. MASSIF: because, Your Honor, the length is the 1 reason why she's now available. I nine if we -- 2 THE COURT: But that's -- no, no, no, wait a 3 second. W h o a , whoa, whoa, that's not v/hat you said. That's 4 not what you said. You're referring to listing and something 5 like that, which is in complaicne with a court order or** c o n c e r n i n g discovery. Wh y would length have anything to do 7 with compliance with a court order? 8 M R . NASSIF: Length-- well, length has -- 9 THE COURT: Of the trial. 10 MR. MASSIF: Length of the trial is the reason why 11 we are in a positi o n which is different from what we had been 12 in 1983. 13 THE COURT: I 'xl grant you that. T h e y've changed 14 their policy for this individual circumstance since '83. 15 MR. MASSIF: Yes, Your Honor. 16 THE COURT: Mo question about that. 17 MR. MASSIF: That's what I meant by -18 THE COURT: That's shown by the letter. 19 MR. MASSIF: In 1983 we were limited to listing, I 20 believe it was in December of '83 five experts on toxicology 21 we p l a n n e d -- 22 THE COURT: November or December. 23 MR. HEINEMAN: Five retained experts. 24 HR. MASSIF: Five retained experts. We did not want 1 to list someone who at the time we felt strongly because of 2 what we had been told not only regarding her testifying at 3 the trial but also regarding her deposition -- their-- what 4 their position wou l d be if we attempted to depose her. At 5 that time we opted not to list her as one of our five 6 expe rts . 7 MR. CARR: They didn't list her on the other list 0 of experts either. You listed a lot of experts that you 9 didn't call, counse. . 10 MR. MASSIF: For the same reason, your Honor, other 11 experts h a v e -- that we listed either were available or had 12 been taken by dep o s i t i o n testimony ao I recollect at least. 13 THE COURT: Weil, that's different. That's .14 different than what you said earlier. That's fine. I can 15 accept that. Okay. Anything else. 16 HR. CARR: If I can respond to what he says about 17 all the w i t n e s s e s relying. The only people in this case that 18 have testified that they relied upon anything Dr. Kimbrough 19 has said has been the defendants, not the plaintiffs. 20 Plaintiffs haven't -- none of our experts have indicated they 21 rely upon anything, flatter of fact, all experts have had oo things to the c on t r a r y co say about it. 23 MR. MASSIF: Your Honor, Dr. Carnow has testified, 24 and I don't know if we have the transcript with us, but has 1 testified that in his opinion Dr. Kimbrough does not support 2 the one part per billion limit in soil, and I may be 3 paraphrasing that. But, Your Honor, he has commented, and I 4 have the transcript here. 5 THE COURT: Can you give me the date. Could you 6 give me the date and line, page. 7 MR. NASSIF: June 11, 1984, Page 20, Line 12 through 8 17. 9 THE COURT: Let me see that. 10 MR. MASSIF: Here, Your Honor. 11 MR. CARR: There's no contest on anything like 12 that. She hasn't said, and I'm sure she wouldn't say if she 13 came here that CDC has found that one part per billion, below 14 one part per billi o n is safe. There's no issue on anything, 15 no witness here has -- except their toxicologist. 16 MR. MASSIF: We disagree with that, your Honor, with 17 due respect to Mr. Carr's opinion. IS MR. CARR: But anyway, Your Honor, there's nothing 1.9 that they've related that I've heard that's not in evidence 20 by one witn e s s or another .in behalf of Monsanto. There's 21 nothing new dealing with any issues here that I know of that 22 they haven't alrea d y put in evidence. OLi'! MR. MASSIF: Your Honor, on the newness issue, 24 besides the OSHA information and the rabbit ear test and her 1 participation and what she concluded on the Sturgeon incident 2 is not in evidence. That is ail v ery new, and the other 3 thing that v/ould be very new to this case is to have the 4 person who wrote the article actually be the one interpreting 5 it. That wourd be very new to this case, Your Honor. 6 MR. CARR: That would be true with any expert 7 witness. It's always nev/ to have the expert that wrote 8 interpret it. My point in saying there's nothing nev; here is 9 there are no new items of scientific importance that `would 10 come in here that would change any of the relevant facts in 11 this case. She's not going to say that there was more TCDD 12 in the soil than your people have said. She's going to 13 obviously say that there was something b e l o w that or that was 14 in the tank car. W hat's new about that. 15 Conversa t i o ns with O S H A are not relevant to 16 anything that I'm aware of. This child and the respiratory 17 arrest, what she might say about that, s h e 's not a doctor. 18 It wouldn't be relevant to anyt h i n g for her. Serum from 19 Sturgeon people unless you relate to the serum of the 20 plaintiffs in this case and their serum was tested, that's 21 got no relevance to anything. 22 I can't see anything on any issues that are of 23 concern in this case that she has any testimony to present 24 that has not already been presented in one or more forms by 1 other expert witnesses in behalf of Monsanto or that cannot 2 be presented in one or more forms by expert w i t n e s s e s already 3 listed by Monsanto. 4 MR. MASSIF: Your Honor, she is an H.D., it's my 5 understanding that she is. In addition, I think the work 6 that she did pertaining to the Sturgeon situation has not 7 been adequately covered in the testimony of the other 3 parties. They been specifically excluded from testifying. I 9 think there are critical issues that have not been covered in 10 this case in terms of the C D C 's position on the Sturgeon 11 incident, what the CDC did to assess the S t urgeon incident. 12 All of that information has not been presented, and I think 13 what the CDC -- their position on dioxin in general as they 14 see dioxin at less than one part per billion has not been 15 presented in this case. 16 THE COURT: Okay. I s11 go ovei all this, and I'll 17 give you a decision first thing tomorrow morning, and then we 10 will, depending on my decision, go from there. IS ME. CARR: All right, Judge, thank you. 20 THE COURT: T o m o r r o w night we're going to go over 21 evidence depositions? 22 23 24 1 1 STATE OF ILLINOIS ) ) SS. 2 COUNTY OF ST. CLAIR ) 3 4 5 If Richard P. G o l d e n h e r s h , one of the Judges in and 5 for the Twentieth Judicial Circuit, do hereby certify that 7 the foregoing transcript is a true and correct transcript of 8 the proceedings had in said cause. 9 Dated this dav of December, 1985. 10 11 12 . . . _ . _ 13 RICHARD P. GOLDENHERSHf JUDGE 14 15 16 17 18 19 20 21 22 23 24 1 STATE OF ILLINOIS ) ) SS. COa COUNTY OF ST. CLAIR ) 3 4 I, MARSHA SCHHIPPER , certify the foregoing to be a 5 true and acculate transcript of the testimony and proceedings G in the above-entit le d cause. 7 Dated this day of December, 1985. 8 9 10 11 12 13 14 15 16 17 1C 15 20 21 22 23 24