Document 91r3549BmqYN0yDyD9ng9zx3D

37 1 sufficiently disruptive. I didn't see this hBad shaking 2 thing that's been reported. I don't think it's sufficiently 3 disruptive or improper to incur that kind of a warning, and 4 I would object to it as bBing intimidating to the witness. 5 To that end, for the record, I would object to it. 6 Obviously I 'm an officer of the court, and I will obey the 7 Court's instructions. 8 THE COURT: I understand you will whether you 8 agree with them or not. I don't think when I see a pattern 10 of conduct or when any Judge sees a pattern of conduct that 11 appears too often to be dismissed as unconscious, or 12 unintentional, that that Judge can let it pass. UJhen it is 13 not possibly physically disrupting of a court proceeding, 14 but when it is of such a nature as far as points being 15 testified to or timing, or at an important point as far as 16 the context of thB trial itself, I don't think that a court 17 has to wait for an actual disruption of proceedings in order 18 to take these actions. 13 A court order is a court ordar, whathBr it's 20 something that the violation of which is disruptive or the 21 violation of which is consistent, not necessarily disruptive 22 of proceedings, but is a consistent, obvious, at least 23 arguably wilful course of conduct uharB this type Df 24 reaction by the Court should be taken. W e 're only supposed 3B 1 to give orders under certain circumstances after due 2 consideration, but us have the duty to see that our orders 3 are complied with. 4 I think that we are -- he has bBBn admonished by 5 experienced counsel as to what to do and not to do, I think 6 we're getting into that second stage where we have to make 7 sure these orders are complied with. I don't think I have 8 to wait for an actual disruption. 8 Having observed this individual for close to two 10 and a half days, having seen the manner of which h e 's 11 handled himself on the witness stand, and the manner in 12 which h e 's answered questions, I doubt very much whether any 13 of us are going tD be able to intimidate him from doing what 14 he wants to do as far as his testimony is concerned, or 15 anything else. 16 He is obviously a very strong individual. I am 17 not trying to intimidate him or keep him from testifying as 18 ha wants to testify. He does* however, in the course of 18 that testimony have to comply with some basic rules of the 20 courts in the state of Illinois. At this point in time hB 21 does not appear to be complying with them. I am going to 22 give him one more chance to comply by ordering that by 23 advice of experienced counsel as to what compliance means. 24 There's no way in the world that your admonishment 33 1 him, in your advising him of what I said is going to be E intimidating to this man. That won't happen. He's not that 3 type. H e 's not easily intimidated, and my intention is not .4 to intimidate him, and that mill not be the effect. 5 hr. Carr, you may proceed on your objection. 6 MR. CARR: I think my objection was, has been 7 Fully stated, your Honor, is that Counsel's question is B misleading to ths Jury because the record after it was 3 Finally straightened out, clearly shows, and there is no 10 doubt about it in Counsel's mind or anybody else's mind, 11 because h e 's taken the depositions of Ferguson, had Full IS material produced, and Counsel well knows that the documents 13 he handed to the witness, SSI and 147E, is material that was 14. generated From the computer tapes and was not material that 15 was given to us by Monsanto or by Suskind as thB question 16 implied. 17 MR. HEINEMAN: No. 10 19 say? THE COURT: Do you have anything Final you want to SO MR. HEINEMAN: The question didn't imply that. The 21 question was whether or not those documents were Suskind EE documents, were documents that had been produced by E3 Suskind -- E4. MR. CARR: Wait a minute. I didn't object to 40 1 that. It was when you added the part to it suggesting ta 2 the witness that these documents were not generated From the 3 computer tapes given by Suskind. That's the point of my 4 objection, Counsel. 5 We have agreed, and there is no dispute, these B documents were not produced by Suskind. They are not 7 Suskind documents. These are documents that had been 8 produced From computer tapBS given by Suskind under order oF 8 court to Dr. Carnow. He obviously has to put those computer 10 tapes in a computer and Feed codes to it, and get the 11 inFormation that the computer tapes are not readable without 12 putting them in a computer and getting print-outs, as you 13 well know. 14 MR. HEINEMAN: The statement was made to Dr. 15 Roush, and in court by Mr. Carr, that that 1427 is a Dr, IB Suskind document. 17 MR. CARR: Counsel, we know that was done to start 18 with, because that's the inFormation that was given at the 18 time, but later on the record will clearly show that it was 20 straightened out and that these were documents that werB 21 generated From computer tapes. So let's not play games on 22 that. You know that's exactly what the record says. 23 MR. HEINEMAN: ThB last statement that Mr. Carr 24 made on the subject was this document was not created by me. 41 1 ["he only thing that was created by the people in my employ 2 uas the handwritten portion. The typed portion is a print 3 out From the computer tape given and described in that 4 letter, given to us to be used in analyzing these data. 5 HR. CARR: Exactly right. That is exactly the E Fact. 7 NR. HEINENAN: The Fact is that that was created, 0 print-out, that that is the result OF introducing diFFerBnt 9 variables and diFFerent means oF organizing the data -- 10 NR. CARR: Counsel, iF you want to bring out with 11 a witness, and I won't object to it, that the user of the 12 tapes used diFFerent variables and put in diFFerent analyses 13 and analyzed it from a diFFerent viewpoint, I will not 14 object to that. Ny objection is your suggestion to the 15 witness that this material was not computer print-outs based 16 upon or taken From or with utilization oF the computer 17 tapes. Just exactly as I said in that last statement -- 18 THE COURT: IF I remember correctly, what you just 13 said about the diFFerent analyses to everything that was 20 testiFisd to somewhere in the course oF that. 21 NR. CARR: It was, your Honor. 22 THE COURT: When Roush or somsonB was on the 23 stand. I 'll sustain the objection. You can go into that 24 area. I remember that being testiFiBd to whBn this original 42 1 thing came up with Dr. Roush. So I will sustain the 2 objection, and I think you can go into that area also. 3 Let's take a break outSBlves and thBn go back in. 4 5 CShort recess.) 6 7 CThe Following proceedings were had in the 0 presence and hearing of the jury:5 a 10 Q (By fir. Heineman} Dr. Suskind, if I can ask you 11 to refer again to Defendant's Exhibit 321, sir, which is the 12 computer print-out you were looking at before. Are you 13 aware, sir, of who generated that document? 14 A I believe that this document was generated at the 15 request of Conibear and Carnow for the trial in Charleston, IB and the individual responsible for programming it at thBir 17 request was a Hr. Ferguson. 18 Q Now, are there any differences, sir, in Exhibit 13 921 as compared to the computer analysis created by your 20 office? 21 A I think there are some very substantial 22 differences. I think one has to realize that if one has a 23 data bank, a bank of information which is in a computer, you 24 start out by asking the computer questions when you want to . 43 1 analyze that data. The questions are really called a e program. The program that was used to elicit thB data. The 3 information which appears in 1427 was very different from 4 the computer program that we used. Naturally, you would get 5 somewhat different answers, depending upon the categories of E questions you ask and how you ask them. I can cite an 7 example, if you wish. B All right. Would you please. 9 A And I think that the problem relates to, as it 10 does, in 1472 relates to cancer. How many of these people 11 have had cancer. Well, when we asked the question, we had 12 several categories of cancer, and we wantsd to make sure 13 that we differentiated tumors. 14 Tumors, as I said Barlier, simply means a swelling 15 in an organ system or a swelling in the skin and it can be a IE cyst, it can be a polyp, like President Reagan had, which 17 was benign. It could be a polyp in the nose, which can bB 18 benign. That's a tumor. 13 And w b separated tumors and:tha variety of tumors 20 from cancers. We used, as I said earlier, we used a SNO-Ned El classification of all diseases, including cancers and 22 tumors, so that what we asked for was where was it, what 23 organ system, the type Qf tumor or cancBr, and when w b put 24 the figures together we had a print-out for tumors of each 44 1 category, of each organ system, so we knew how many tumors 2 there were, and we knew how many cancers there were, and 3 what organ system was affected. 4 In the programming for 1472, which is cited in 'S'. Defendant's Exhibit 921, there was simply thrsa questions 6 asked, pull out the skin cancers, pull out the bladder 7 tumors, and pull out bladder cancers --sorry, bladder 8 cancers, and pull out cancers of all other cites. So they 9 had three categories. 10 Of course, the kinds of information that they got 11 out of that, especially because they lumped tumors with 12 cancers, which pathologically and medically is eroneous, 13 they got wrong answers, wrong answers from our standpoint 14 and wrong answers from a reasonable medical standpoint. 15 So that -- you know, if you want me to cite a few of these. 16 fir. Uolz, for example, who had a basal cell 17 epithelioma, which we picked up, and a bladder tumor, hB 18 never had a bladder cancer, so that he should be in the 19 tumor category rather than the bladder cancer. He didn't 50 have a cancer. 51 Another one was a man named Waldorf. You ask 22 yourself well, when did he have a skin cancer, and he had it 23 in 1944. So hB shouldn't be included in the people with .54 skin cancer among the exposed because it occurred in 1944, 45 1 if you're attempting to relate expousre to skin cancer. 2 There's another problem, and that is when you -- 3 we counted -- in our print-out we counted people that had 4 cancers, people that had cancers. There was at least one 5 individual who we knew had prostate cancer. We knew 6 eventually that he had leukemia. Ule counted that as one 7 person with cancer. In this print-out it's two cancers, two B people with cancers. It's not. It's one person with 3 cancer. 10 These are some of the things I think have to be 11 painted out. There are some other rather obvious problems 12 with this, and if you'd like me to go on, I can. 13 Well, Dr. Suskind, the SND-fled or the SNO-Med 14 classification, is that something that is yours alone? 15 A N o . As I indicated Barlier in my testimony, SND16 Ned is a classification of diseases, which is used 17 internationally by medical record keeping groups like 10 hospitals, places that have to make diagnoses of diseases. 13 The SND-fled has nothing to do with what happened 20 this morning in our environment. It's Systemitized 21 Nomenclature of Medicine. The abbreviation is SNO-MBd. It 22 was originally, after many international conferences about 23 it, the American College of Pathologists issued a two volume 24 document on classification of diseases. It's used 46 1 internationally. We used it in order to classify both 2 history of diseases, as well as findings. 3 Whan you made available computer data, the 4 computer tape in the Nitro litigation, did you make 5 available the SNO-fled key that you used? 6 A Yes, uie did. We were asked for it, and me sent 7 it, and I believe Dr. Carnou received the SNO-tlBd, so if hB 8 wanted to use it he could. 8 Q When you analyzed skin cancer, sir, did you make 10 plenty adjustment for age? 11 A When we analyzed a history of skin cancers -- 12 Yes, sir. 13 A -- we, knowing I 'm a dermatologist and I've seen a 14 lot of skin cancers I know that age is a terribly important 15 factor, so that we wanted to see whether there was any 15 difference in the occurrence of skin cancer with age, so 17 that we separated the group 50 and over from those below 50 IB years old, and the paper indicates what those results were. 18 For example, we found that the skin cancers were 20 age related, not exposure related. They were age related, 21 not exposure related. We found, for example, among thB 22 exposed, under 50 years old, under 50 years old, nobody had 23 Skin cancer in our group. Nobody had a history of skin 24 cancer. Among the not exposed there was One percent had a v- . -47 . 1 2 3-. 4 5 6 .7 ' 8 3 10 11 12 13 14 15 IB 17 18 13 20 21 22 23 24 history of skin cancer. In the above 50 years old there were literally the same percentage of people in the expossd and thB net exposed group that had skin cancer. Five point 'three percent among the exposed and Four point eight among the not exposed. That's n o t -- that's no difference. Q What does that indicate? A So it indicates that in this study, in the population -- among the population exposed and not exposed, exposure was not a Factor in determining association. There was no association with exposure, but there was a clear cut association with age. If you look at Defendant's Exhibit 321, thB Carnaw-Conibear print-out, does it contain any commands for conversations with the computer? A Oh, it contains a substantial number of commands to the computer, and with respect to cancer I've already indicated what those commands were. Q Can you tell from looking at Exhibit 321 whether the computer was commanded or questioned by the CarnawConibear organization regarding age separations in the group? A Yes, there was a command which indicated they would like to determine, because I think what thBy wsre 48 1 trying to do, according to M r . Ferguson, was to reproduce 2 our results. So they also made age a variable. 3 All right. 4 A However, I don't see any of those results in the 5 print-out, so that I have no idea whether they ever did any 6 age examination of the skin.cancer data. 7 In other words a MR. CARR: I object, your Honor, leading, a suggestive. 10 THE COURT: Could you rephrase it, please. ii Q CBy Mr. HeinemafO Is there any age analysis 12 contained in the data analysis portion of that Carnow13 Conibear print-out? 14 A IF Plaintiff's Exhibit 1472 is what came out as a 15 result of the command to elicit the information regarding 16 cancer, there's no variable in hers with respect to agB. 17 Dr. Suskind -18 19 CDefendant Monsanto's Exhibit 1708 was marked 20 for identification by the court reporter.} 21 22 CBy Mr. HeinemanD Doctor, I 'd like to show you 22 Defendant's Exhibit 1700, sir, which is a copy oF 24 Plaintiff's Exhibit 1473. All right, sir. 43 1 A Yes, sir. 2 Q Have you seen this document before, this 1473? 3 A Yes, I have. 4 Q All right, sir. And I wonder if, do you agree 5 with what's contained in this exhibit? 6 A May I go up there? 7 THE COURT: Yes, you may. B THE WITNESS: It reads Suskind Human Health 3 Effects of 2,4,5-T, Journal of the American Medical 10 Association, 1S84, which essentially refers to the article 11 published in the Journal of the American Medical 12 Association, and it says -- it reads cancers reported to 13 Suskind by Nitro workers exposed to 2,4,5-T. 14 Now that's not so. That is absolutely not so. 15 It's false. It's eroneous because that isn't how it was16 reported. to us. 17 That is the result of that print-out, and the 18 interpretation of the print-out, and I've pointed out some 13 of the errors that were made with respect to date, some of 20 the errors that were made with confusing tumors with cancer. 21 There are others. But I think that what comes out of hare 22 is simply an eroneous interpretation because the data 23 analysis was eroneous. 24 For BxamplB, let's taka Mr. McDadB. It is alleged 50 1 that he mas among the exposed and ue left him out. Well, as 2 a matter of Fact, according to the physician, and we took 3 the physician's history as being the most significant 4 history -- 5 M R . CARR: Your Honor, I would object, unless the 6 witness makes it clear that it's the physician's report that 7 he took and that he has, and presumably been given to us in 0 writing. 3 THE COURT: Could the two of you approach the 10 bench for a minute, please. 11 12 CThe following proceedings were had at the bench 13 out of the hearing of the jury:} 14 15 THE COURT: Would you refresh ray recollection on 16 the basis of your objection. 17 M R . CARR: Yes. We asked for all of the records 18 that Suskind had which hB used to prepare this morbidity 13 study. We asked for all the records, all the history, all 20 the written documents, everything that pertains to thesB 21 people that were the subject of it. 22 Now if he is referring to one of those documents 23 that was given to us, I don't abject. But it's not clear 24 from what he's saying whether he was told by a physician and 51 1 not in writing. He may be referring to something that 2 somebody told him and that we don't have any memo or record 3 of. That's the basis of my objection. 4 MR. HEINEMAN: The fact of the matter is, your < 5 Honor, I believe he is referring to the physician portion of 6 the Nitre form that he Just identified. 7 THE COURT: Why don't you clarify that than. B MR. HEINEMAN: The fact of the matter is, though, 9 that even if he weren't, he could certainly take into 10 account in giving his expert opinion information he had 11 obtained from that physician orally. IS MR, CARR: He could arrive at an opinion, as w e 've 13 been through this a dozen times before, he couldn't relate 14 what, in fact, has been told him. 15 THE CdU^T: Especially when it doesn't happen to 15 be the case in this particular situation. Why don't you ask 17 another question to clarify that. 18 19 CThe following proceedings were had in the SO presence and hearing of the jury:3 B1 SS Q CBy Mr. Heinemanl ' Now, Dr. Suskind, first of all, S3 the information which you obtained from physicians that you 24 said you relied on, where is that information set forth? 55 1 A That is set forth in the physician's examination 5 page, and if you'd like me to refer to that from the 3 interview and the examination record, I lean. 4 Q But is it part of the form which you identified 5 previously? 6 A Yes, it is. 7 A H right. Which is Defendant's Exhibit 1704. B A If I may, I can show you where it is. If I may,; 3 your Honor. 10 THE COURT: Go ahead. 11 THE WITNESS: It's on page 51 of the record, and 15 the physician's responsibility was to take additional 13 history, additional history and review of systems. So he 14 took a history of skin problems, including acne, other skin 15 abnormalities, nails, and cancer, so that he asked about it, 16 asked about problems of the Bar, nose and throat. He askBd 17 about problems of the teeth, tissue. IB He went through as most physicians will do in an IB interview, will take a history of possible problems of the SO eyes, of the lymph nodes, of the pulmonary system, of thB 51 heart. But among them, whether or not the individual had a 55 history of a tumor or a cancer in those organ systems. 53 All right, sir. Now in connection with 34 Defendant's Exibit 170B, you were discussing fir. McDade. 53 1 A McDade. 2 McDade. And you wrote a word on here. 3 A Yes. I indicated that according to thB 4 physician's history this man had a skin tumor. A skin tumor 5 can be a epithelioma, it can be a mole, which is swollen. 6 Tumor means swelling. These can be benign. So that in the 7 physician's opinion, this man from his history had at ana a time a skin tumor, which was removed. So we classified it a as a tumor, not a cancer. - io UJe've already talked about Mr. Uolz. Mr. Uolz ' 11 skin cancer was classified as a basal cell epithelioma. Mr. 12 Uolz didn't have a bladder cancer. Me had a tumor. From 13 what we know about it, it was a benign tumor. 14 This man, as I indicated, did have prostate -- 15 history of prostate cancer, and he did have a high blood IB count when we saw him, so we had evidence of leukemia even 17 when we examined him. He is called two cancers. H e 's a 18 person with cancer. 19 UJe counted noses. We didn't count numbers of 20 cancer. 21 There was another problem, for example, there are 22 three people who are indicated as having cancer and we left 23 them out of the exposed group. By no stretch of the 24 imagination from the records that wb gave tD Ferguson's 54 1 analysis uisrs these people exposed. 2 Mr. Rogers, Roy Rogers, had skin cancer. Us 3 aicksd it up. But it's in that table among the non exposed. 4 Mr. Bareli, the same thing. He's a non-exposed 5 individual. He is in the table as well. 6 Then there's -- let's see, we have hr. Reynolds, 7 hr. Reynolds had a bladder cancer. It is recorded as a bladder cancer in the non-exposed. And to add these is 9 simply misinforming about who was exposed and had cancer and 10 who was not exposed and had cancer. 11 Q Dr. Suskind, at the bottom of the table are the 12 words omitted from Table 1 with a double asterisk. Do you 13 see that? 14 A They were. They were omitted -- they were omitted 15 in the exposed because they weren't exposed. But they were 16 in the group that was non-exposed. 17 There were two individuals that the physician did 18 not pick up and that was Mr. Postelwaite and Mr. Uest, 13 Lowell Uest. So that if you add those to the people whom w b 20 regarded as having skin cancer, you have essentially two 21 more people. 22 However, one asks --- one asks does that change the 23 significance of the results. Does that change the 24 statistical significance of the results between the exposed