Document DvknkvyvQjpdg1ZKbJ15OkwaN

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OP ILLINOIS 2 ST. CLAIR COUNTY 3 PRANCES E. KEMNER, et al 4 Plaintiffs 5 VS. 6 MONSANTO COMPANY, 7 Defendant. ) ) ) ) ) No. 80-L-970 ) ) ) ) 8 9 Before the HON. RICHARD P. GOLDENHERSH, Judge 10 11 REPORT OP PROCEEDINGS 12 JURY TRIAL 13 March 26, 1986 14 15 16 APPEARANCES: 17 MR. REX CARR and MR. JEROME SEIGFREID 18 on behalf of the Plaintiffs? 19 MR, KENNETH R. HEINEMAN and MR. JOSEPH NASSIP on behalf of the Defendant. 20 21 KIMBERLY GANZ, CSR, RPR, CM 22 Official Court Reporter 23 24 1 1 BE IT REMEMBERED, that on March 26, 1986, the same 2 being one of the regular judicial days of said court, the 3 above-entitled cause came on regularly for hearing before the 4 HONORABLE RICHARD P.GOLDENHERSH, one of the Judges of said 5 court, at the St, Clair County Building, 10 Public Square, in 6 the City of Belleville, St, Clair County, Illinois. 7 Whereupon the following proceedings were had: 8 (The following proceedings were had in the hearing 9 and presence of the jury), 10 MR. HEINEMAN: Your Honor, may counsel approach the 11 bench before we start? 12 THE COURT: Yes, you may* 13 (Bench conference had out of the hearing of the 14 jury.) 15 MR. HEINEMAN: ,1 have a couple of matters for the 16 record, Your Honor. With respect to the 1953 Lane record 17 that Mr. Carr referred to, we do not find any such 1953 Lane 18 record. 19 THE COURT: Which one was that? 20 MR. HEINEMAN: The guys name is Alva Lane and there 21 was a reference in Mr. Carr's examination concerning the 22 Nestmann report. I think it was Nestmann report. 23 MR. CARR: Yes. v 24 MR. HEINEMAN: The Nestmann report. And Doctor 2 1 Suskind suggested that he thought he remembered seeing a 2 record in 1953 We do not find such a record. Mr* Lane left ,3 the company resigned from the company in 1952* I think what 4 Doctor Suskind was referring to was his 1950 report where he 5 examined Mr. Lane and that is in the evidence. 6 THE COURT: Okay. 7 MR. CARR: What I wanted was an affirmation -- .'.I. 8 either wanted the production in 1953 or in light of the 9 Doctor saying he saw a 1953 report that contradicted Doctor 10 Nestmann's report to this man's document. 11 THE COURT: There is no such document? 12 MR. HEINEMAN: There is no 1953 report. There is 13 a '50 report which Doctor Suskind prepared which was in 14 evidence. 15 THE COURT: Okay. 16 MR. HEINEMAN: The second thing is is that Mr. Carr 17 marked an exhibit a couple of days ago which I believe was 18 Plaintiffs' 1795. It was a Nestmann report with respect to 19 an E. W. Miller and he said that he only had two or he only 20 had one page of it. 21 THE COURT: I remember that. 22 MR. HEINEMAN: It was apparently Plaintiffs' 23 Exhibit 1782. 24 THE COURT: I remember. It was only a one page v 3 1 report in the group. 2 MR. HEINEMAN: Our copy we have the second and 3 third pages* I gave them to Mr. Carr yesterday. I would 4 move thatt they be added to Plaintiffs' Exhibit 1795 so that 5 it could be complete. 6 THE COURT: Any problems with that? 7 MR. CARR: That is fine with me. 8 THE COURT: Good. 9 MR. HEINEMAN: That is all I have. 10 MR. CARR: Your Honor, I would like to announce to 11 the jury that Doctor Suskind did not see a 1953 report 12 relating to Mr. Lane that contradicted Doctor Nestmann's 13 findings and that counsel has affirmed that there is no such 14 report in existence. 15 MR. HEINEMAN: Well, I would object to that unless 16 it was also added that he does have a 1950 report. 17 MR. CARR: That is not neither here nor there. The 18 1950 report had acute symptoms, had problems that he had that 19 he has been treated for it. That in no way contradicted 20 Doctor Nestmann's report in 1955. 21 MR. HEINEMAN: Your Honor, obviously -- 22 MR. CARR: I object to any statement about a 1950 23 report because it was a 1953 report that the doctor said v 24 contradicted Doctor Nestmann's report. That he saw one and 4 1 he saw one that counsel had. 2 MR. HEINEMAN: The statement that Doctor Suskind 3 made was that he thought that he had seen a 1953 report that 4 had been provided to him by counsel. That is what he said. 5 It turns out that is incorrect and we don't find a 1953 6 report as well at the time. I mentioned to the court that I 7 didn't know what report he was referring to. All right. It 8 appears he is referring to the 1950 report which he made. 9 MR. CARR: There is no such thing. There would be 10 no doubt he would know about his own report. He wasn't 11 talking about his own report. He was talking about a report 12 he saw of somebody else's of 1953 from the plant, some other 13 report that contradicted. If he was referring to his own 14 report, there wouldn't be any doubt about it. He knew that 15 he saw the name in 1950. He knew that he made the report in 16 1950 about the man so he couldn't possibly -- 17 THE COURT: When did this exchange take place? 18 MR. CARR: It took place, Your Honor, during the 19 time that I was cross examining the witness as to what 20 reports were submitted to the commission. 21 MR. HEINEMAN: This would have been last Friday, 22 maybe. 23 MR. CARR: As to what Nestmann reported to the 24 commission and as to these ailments that Mr. Lane had. 5 1 MR. HEINEMAN: I think -- You were asking when# the 2 date? ; 3 THE COURT: So I can look at my notes. 4 MR. HEINEMAN: I think it was Friday. Thursday or 5 Friday of last week. 6 THE COURT: Let me look at my notes and then I will 7 decide what is to be announced and we can do that at the 8 break. 9 MR. HEINEMAN: Your Honor# I would like the record 10 to show that I would object to an announcement being made as 11 done purely on the effort to try in some way to embarrass the 12 witness. 13 MR. CARR: No doubt about it. That is exactly 14 correct. I want to show that the witness was not telling the 15 truth because there was no doubt about it. He stated 16 affirmly and strongly that he saw plant medical records from 17 1953 or some medical record from 1953 that contradicted what 18 Doctor Nestmann said about Lane's complaints and problems. 19 There was no question about it. He was firm on it and I do 20 indeed want to embarrass the witness with that because I 21 decided at that time I want an affirmation from counsel that 22 there is no such report or I want the report. I have made it 23 clear and explicit. 24 MR. HEINEMAN: You have your affirmation and I V 6 . ' -\ 1 think that the secondary purpose which you have just 2 announced is improper and I object to it. 3 THE COURT: I am going to reserve rulings until I 4 have a chance to at the break to look at my own notes and to 5 refresh my memory on exactly what happened. I will decide 6 this matter. 7 MR. CARR: The exhibit would be in the 1780s. That 8 will help you find it. I don't know the exact number of the 9 exhibit and then you could find it very easily. 10 THE COURT: Okay. 11 MR. CARR: The exhibit in question is number 1787. 12 MR. HEINEMAN: Come again? 13 MR. CARR: The exhibit in question is number 1787. 14 That is the one that we were talking about. 15 THE COURT: Okay. Great. I will find it. Thank 16 you. 17 (The following proceedings were had in the hearing 18 and presence of the jury) 19 R A Y M O m -S-U.SE1NP 20 having resumed the witness stand, being previously sworn, 21 testified further as follows: 22 CROSS EXAMINATION 23 By 24 MR. REX CARR* 7 1 Q. Doctor Suskind, at the close of the day, we were 2 discussing the question of whether or not you had included 3 employees in your morbidity study who had been employees 4 prior to 1955 and who had been terminated. Do you recall 5 that, sir? 6 A Y6S* 7 Q. And I suggested to you that we could, we would have 8 the evidence today that would indicate the accuracy of my 9 statement. Do you recall that, sir? 10 A. Well, I am not sure what the statement indicated. 11 That we did have -- we did have people who were terminated? 12 Q. No. That you did not include people who had been 13 terminated prior to 1955 other than the people who had been 14 identified as having chloracne and being in the 1949 15 accident, that list of 122 or 121 persons. Now, Doctor, with 16 that prepatory remark -- 17 A. Are you stating a positive statement, sir? 18 Q. Doctor, I am about to read to you Doctor Roush's 19 statement with reference to the 1955 employees, sir. This is 20 on July 10, 1985, counsel, and -- 21 22 it? MR. HEINEMAN: Can we have just a moment to find 23 MR* CARR: Surely. V 24 Q. And the question at that time is on page 17, 8 1 counsel* The question was, "Doctor, you have your records of 2 those people. You know who was there. You know the people 3 that were working in that department. You had the personnel 4 records and their job assignments, do you not, sir?" His 5 answer was "No, sir." "Questions What happened to the 1949 6 records or did you destroy them? Answer: The records as 7 far as we could go back and identifying is, I think 1955. 8 You could not identify any of your workers prior to 1955? 9 No, sir." 10 And then on page 18. "What efforts did you make, 11 you at Monsanto, make to identify these people that were your 12 employees before 1955? Answer: We made a great effort to 13 try and identify those. Questions What did you do, Doctor? 14 Answer: We went back through the records as far as we 15 could. Question: And, Doctor, are you telling the jury and 16 telling me, this Court, that Monsanto did not keep the names 17 and addresses of their employees prior to 1955?" His answer 18 was "Yes." 19 Then I asked this question: "Why on earth would you 20 destroy those records, sir? Why would you get rid of those 21 records and when did you do it? Answer: I can't answer 22 that." 23 Then with regard to the identification of workers > 24 who were involved in the accident and did not get chloracne. 9- 1 This is on page 16 -- starting on page 12, rather. Well, 2 actually it starts onpage 11. "Question: Well, you know as 3 a matter of factthat what they did, they actually didn't 4 study anybody that had been exposed prior to 1955 other than 5 the 122 workers who were involved in the TCP accident. You 6 know that, don't you, sir?" And his answer was "Yes, sir." 7 And then at line11. "Question: There was any number of 8 people that wereinvolved in that accident and that worked in 9 that department who did not get chloracne, isn't that 10 correct, sir?" His answer was "Yes, sir. I don't know how 11 many but there were those, yes. Question: And they were 12 never included in this study, were they, sir?" And his 13 answer was "No, sir." "And these people that were exposed to 14 the same dioxin -- and those people, they were exposed to the 15 same dioxin as the people that got chloracne, weren't they, 16 sir? Answer: Yes, sir. And we know, sir, that people can 17 have disabilities and animals can have disabilities from 18 dioxin exposure and never get chloracne? We know that, don't 19 we, sir?" His answer was "No, sir." 20 "Question: Have we not established that, Doctor 21 Roush, in this case early bn? Answer: No, sir. Question: 22 We have not established that, sir? Answer: No, sir. 23 Question: You don't recall testifying from the documents that 24 I gave you to that effect? Answer: Yes, sir." And then I 1 said, "I thank you, sir. I thought you would recall it." 2 And then on page 16, middle of the page at line 12, 3 beginning on line 11. On page 15. "Doctor, how could you 4 possibly sit there and say that a study to determine whether 5 or not dioxin causes cancer, for instance, is valid if you 6 have automatically excluded a large group of people that have 7 been, large groups of people that have been exposed to 8 dioxin? How can you say that, sir? Answer: We didn't 9 exclude it. Doctor, you did exclude it. You just stated you 10 excluded it," and then there is an objection. And then he 11 says "No, I didn't. Question: Go ahead. You said we didn't 12 exclude it? Answer". That is right." 13 Then I suggested that he finish his answer and he 14 said "That Suskind study was based on the data that we had 15 available in our records. We couldn't do a study on those on 16 which we had no records. We went far back and included 17 everyone that was possible to be exposed that we could 18 identify that had been working in the 2,4,5-T unit. 19 Question: Doctor, you did not invite anyone in 1949 that was 20 in that accident unless they had chloracne, isn't that a 21 fact, sir, and didn't you just testify to that fact? 22 Answer: Invite what? Question: Invite anyone that was in 23 the 1949 accident that had worked in that department in 1949 V 24 unless they had chloracne? Answer: We didn't. We couldn't 11 1 identify -- Question* To this study to participate in this 2 study? Answers We invited everyone that we could identify 3 that had worked in 2,4,5-T, Question: Including those that 4 did not have chloracne in the 1949 accident?" and then I read 5 the rest of it about the '49 records. 6 No, I didn't read that. "Answer: We didn't know 7 them. Question: Doctor you have your records of those 3 people. You know who was there. You know the people that 9 were working in that department. You have the personnel 10 records and their job assignment do you not sir?" His 11 answer was "No, sir." "Question: What happened to the 1949 12 records, or did you destroy them? Answer: We -- the records 13 as far as we could go back and identify is, I think 1955. 14 You could not identify any of your workers prior to 1955?" 15 And then I read the remainder over on page 18. 16 MR. HEINEMAN: The answer there-- 17 MR. CARR: What is that, counsel? 18 MR. HEINEMAN: -- to that last question? 19 MR. CARR: I read those answers already. Do you want 20 me to read them again? 21 MR. HEINEMAN: No. To the last question, please. 22 Q. "You could not identify any of your workers prior 23 to 1955? No, sir." And then I read over on page 18 that 24 "Monsanto did not keep the names and addresses of their 12 1 employees prior to 1955," and he can't answer why they were 2 destroyed 3 Doctor, in addition to that, on April 16, 1979, you 4 had a meeting with Judy Zack, did you not, sir, relative to 5 and I know you can't recall the exact date so let me give you 6 a memo to help you* 7 A. I didn't h a v e -- 8 Q. I hand you now what has been marked as Plaintiff's 9 Exhibit 1803 and ask you if you recognize that as a memo 10 dealing with a meeting held with you on April 6, 1979, the 11 memo bearing the date of April 16, 1979. And I offer this 12 exhibit into evidence, if it please the Court. 13 MR. HEINEMAN: May counsel approach the bench? 14 THE COURT: Doctor, let me have the question 15 answered and then we will do it. Can you answer the 16 question, please, Doctor? 17 Q. The question is do you recognize this memorandum, 18 sir? Do you recognize it as a memo dealing with the meeting 19 that you had with Judy Zack on April 6 of '79? 20 A. Yes, I do, sir. 21 THE COURT: Now you may approach. 22 (Bench conference had out of the hearing of the 23 jury.) 24 \ MR. HEINEMAN: Your Honor, I would like to note for 13 1 the record that the offer was made before any answer was 2 gotten from this witness. 3 THE COURT: Right. 4 MR. HEINEMAN: And I would object to the offer as 5 it stood at that time. 6 THE COURT: Right. 7 MR. HEINEMAN: As there being absolutely no 8 foundation. This document is a hearsay document. There is 9 no foundation no authentication, no identification and I 10 object to it on that basis. The Court then realizing 11 obviously what I was going to object to since the witness 12 hadn't answered the question had the witness answer the 13 question and I still object to it on the same basis, Your 14 Honor. 15 MR. CARR: Your Honor, I offered it before the 16 witness answered because there is no necessity that I lay a 17 foundation other than the document itself. It is a document 18 that the Court knows was produced to us by Monsanto. It is 19 clearly one of their documents. It is clearly part of their 20 records. It constitutes admission on their part. There need 21 be no further identification by anybody. 22 THE COURT: It is admitted over objection. 23 (The following proceedings were had in the hearing 24 and presence of the jury). 14 : 1 Q. Doctor# this memo states# does it not# that you# 2 Doctor Ferd Meyer# Judy Zack and Ms Pam Winner met to 3 discuss the upcoming medical examination study# the so-called 4 morbidity study# correct# sir? 5 A. That is correct# sir* 6 Q. And# Doctor# it bears a statement there that you 7 would like to examine all the workers exposed since 1948 8 including terminated employees# correct# sir? 9 A. That was my -- 10 Q. Doctor# my question -- 11 A. That was my initial objective. 12 Q. It contains that statement# does it not? 13 A. Yes. 14 Q. It also contains the statement that we# that is 15 Judy Zack et al# indicated that we have not identified or 16 traced all of the terminated employees and could not easily 17 do so within a short period of time. Doctor Suskind settled 3.8 on examining the following groups of employees. Number one# 19 all persons associated with the 1949 TCDD accident# 20 parenthesis, this group involves some terminated employees. 21 Then active and retired employees who got chloracne who had 22 been exposed. Active and retired employees who were exposed 23 and did not get chloracne. And then a controlled group, 24 correct, sir? 15 1 A. That is correctr sir. 2 MR. HEINEMAN: Your Honor, may counsel approach the 3 bench please? 4 THE COURT: Yes, you may. 5 (Bench conference had out of the hearing of the 6 jury.) 7 MR. HEINEMAN: Your Honor, I am going to object to 8 Mr. Carr's obvious intentional effort to mislead and confuse 9 this witness. He is flip-flopping in between. 10 MR. CARR: Do you want to tell everybody or do you 11 want to turn around and face the jury? 12 MR. HEINEMAN: I am facing the Judge. I am right 13 here where the Judge has ordered me to be. 14 MR. CARR: You are talking more loudly than you need 15 to. 16 MR. HEINEMAN: He is flip-flopping between the two 17 studies, Judge. What he read from Roush he is talking about 18 the morbidity study. What he is asking, he is talking about 19 the mortality study and now he is talking about the morbidity 20 study. 21 22 study. MR. CARR: I asked initially about the morbidity 23 MR. HEINEMAN: You started yesterday with 121 24 people. You addressed that at the beginning of this morning. 16 1 The 121 people are in the mortality study that were in the 2 *49 incident. That is what you said yesterday. Do you mind 3 if I finish? That is what you ended with yesterday. That is 4 what you began with today. You are flip-flopping between the 5 two studies. The Roush testimony related to the morbidity 6 study, not the mortality study, and I object to this 7 flip-flopping between these two studies in order to try to 8 confuse the witness and that is what they are talking about 9 here is the morbidity. 10 MR. CARR: No, sir, and, Your Honor, counsel has a 11 short memory. We got into this line of inquiry in order to 12 establish who was exposed to TCDD and who got chloracne and 13 who didn't and the amount of exposure it would take to cause 14 chloracne or other systemic. Whether it is a high dose or 15 low dose. I asked the witness about his own chapter that he 16 wrote in this book. That was the subject. I asked him isn't 17 it a fact that the only way you identified anybody connected 18 with that accident as being part of the morbidity study was 19 that they got chloracne. Yes, that is correct. And the only 20 list you have is the 122 that were involved in the accident 21 that made compensation claims and had chloracne. Yes, that 22 is correct. And did not include anybody in the morbidity 23 study that did not get chloracne involved in the accident, 24 isn't that correct, sir? And you did not include in that V 17 1 study people who had been terminated prior to 1955, isn't 2 that correct, sir? That is exactly what we have been talking 3 about from then until now. 4 THE COURT: Your objection is overruled. You may 5 continue. 6 (The following proceedings were had in the hearing 7 and presence of the jury). 8 Q. Doctor, in addition to this meeting, you received 9 shortly after from -10 MR. CARR: Could you give Plaintiffs' Exhibit 1475 11 to the witness? If it is difficult for to you get because it 12 is farther down* I have a spare copy. Let me give him a copy 13 and I can move on. 14 Q. I hand you what has been previously marked 15 Plaintiffs' Exhibit 1475 and ask you if you recognize that as 16 a letter which was sent to you and dated April 18, '79? Do 17 you, sir, signed by Judy Zack? Doctor Suskind, it bears your 18 name in the address area, does it not, sir? 19 A. Yes, sir. May I read the letter, sir? 20 Q. Doctor Suskind, if you don't mind, we could move 21 along if you would answer my question. It is not necessary 22 for the purpose of ray question for you to read the entire 23 letter. I am only going to refer to a small part of it* 24 A. I would like to read the entire letter in order to 18 1 make sense in ray -- 2 THE COURT? Doctor -- 3 A. Yes, sir. 4 THE COURT: Doctor, again, please. I have asked 5 you many, many times, please just answer the questions that 6 counsel asked of you. 7 A. Yes, sir. It is addressed to me, sir. 8 MR. HEINEMAN: May counsel approach the bench? 9 THE COURT: Yes, you may. 10 (Bench conference had out of the hearing of the 11 jury.) 12 MR. HEINEMAN: Your Honor, it is an obvious 13 abridgment of this man's right to insist that he not be 14 permitted to read a letter which has been handed to him as an 15 exhibit that he is going to be questioned about and I object 16 to Mr. Carr's trying to prevent him from doing that. I 17 object to the Court's instructing him that he can only answer 18 the questions and not read the exhibit. I think it is 19 patently unfair to the witness. 20 THE COURT: You are telling me it is unfair for him 21 to not read aloud a letter? That is exactly what he was 22 asking to do. He had already read it and had finished 23 reading the second page before he made that request and the , 24 question was very specific and in response to that he wants 19 1 to read the letter aloud? That is obviously not responsive 2 to the question that was asked of him and -- 3 MR. HEINEMAN: The word aloud didn't appear in the 4 statement. 5 THE COURT: No, it did not, and it came after he 6 had finished reading the letter to himself. If you will look 7 at the witness, you would see that he had read the first 8 page. He had opened the second page and had finished reading 9 that. Had gone back to the first page. He was asked the 10 question and he asked if he could read the letter. That is 11 what happened and that is not -- 12 MR. HEINEMAN: Mr. Carr chastized him for reading 13 it. Mr. Carr was saying well, your name is right on the 14 first page and he was saying I want to read the letter. 15 MR. CARR: Your Honor, even if he hadn't read any 16 part of it, until I start asking him about the content of the 17 letter, it may be that all I want to do is establish that he 18 got this letter and not a single other thing. Maybe that is 19 all I want to do is establish that he got this letter. The 20 letter is in evidence. Now, until such time as I start 21 asking him about the content of the letter and referring him 22 to a particular area, if he believes that he cannot fairly 23 answer that question that I am asking him about the _' S' 24 particular section that I am referring to, then obviously if 20 1 he can't answer it and the Court feels that he can't answer, 2 he should be given the right to read the entire exhibit* But 3 I have given him from time to time exhibits that are an inch 4 and a half in thickness and if this witness were to have the 5 right or opportunity as he has wanted to on other exhibits to 6 read the entire exhibit before he answers the question this 7 case will never end. I have given him a book and said isn't 8 this exhibit so and so, isn't this the book so and so and for 9 him to have to read the entire document before he can answer 10 the question is absolutely ridiculous. Because if this Court 11 sees that I am taking something from context or if the 12 witness says I am taking something from context, then it 13 might become important for him to read the entire document 14 but until I have demonstrated what I am going to use the 15 document for, all this is is an enormous waste of time to 16 allow the witness to read every single exhibit that I hand to 17 him* 18 In addition to that, yesterday if the Court will 19 recall, I was asking the question, a question about a 20 particular report that he had made. Just in passing to the 21 point, he was digging for it and trying to get his report out 22 before he would answer my question* Now, this is ridiculous 23 and we can never finish if this witness is allowed to v 24 determine under what circumstances he is or is not going to 21 X answer questions* He has a number of tiroes accused me of not 2 letting him read something, not letting him study something 3 and it would appear with counsel backing up his request, it 4 would appear that they are trying to suggest to the jury that 5 I am being unfair to the witness or that the Court is being 6 unfair to the witness to make him answer the question without 7 doing that which he wants to do* He is not in control of 8 this courtroom, although it surely looks like it sometimes, 9 he is certainly trying to arrogate control and I respectfully 10 suggest that this witness should not be allowed to make the 11 rules. 12 MR. HBINEMAN: Your Honor, that statement is 13 ridiculous* We are talking about a man wanting to read a two 14 page document. I should say a page and a half document. He 15 clearly is entitled to do that. It is unfair to question a 16 witness about a document without giving him a chance to read 17 it. It is just not fair and I object to it. 18 THE COURT: Objection is overruled on the grounds I 19 stated. 20 (The following proceedings were had in the hearing 21 and presence of the jury). 22 Q. Doctor, the first sentence of this letter states, 23 does it not, sir, "We have tentatively categorized the 24 approximately 700 active retired and terminated, parenthesis, ' 22 1 terminated from 1949 TCP accident only" is that correct, 2 sir? The first sentence, Doctor, You are looking down at 3 the bottom of the page. 4 A. No, I am looking at that sentence, sir. You 5 haven't completed the sentence, sir. 6 Q. You are correct. I stand corrected. "Employees, 7 according to birthdate, wage, sex, rate, salary code and type 8 of exposure", correct, sir? 9 A. No, it is not correct. The terminated from 1949 10 TCP accident only is in brackets, sir. 11 Q. That is what I said in parenthesis. Did you hear 12 that, Doctor Suskind? 13 A. No, I did not. 14 Q. Doctor, the part that is in brackets refers to the 15 preceding word, that is, terminated, does it not, sir? 16 A. That is what this states. 17 Q. They are telling you again here that the one people 18 they have identified are those that have been terminated from 19 the 1949 TCP accident only, isn't that correct, sir? 20 A. That is what this reads, sir. 21 Q. And that is consistent with the preceding exhibit 22 1803 in which they indicated to you that they were going to 23 give you, that you settled on examining the group of people,v 24 that is all sources associated with 1949 TCP accident, isn't 23 1 that correct? 2 A. No sir, it is not correct, sir. 3 Q. That may include some terminated employees? 4 A. It is not correct, sir. 5 Q. Doctor, isn't that what 1803 says, sir? 6 A. That is what it says but -- 7 Q. That is my question to you. 8 A. I said that it is not correct, sir. 9 Q. Doctor, isn't that what this memo states? 10 A. That is what this memo states but it is not 11 correct, sir. 12 Q. You did not settle on examining that group of 13 people, Doctor? 14 A. No. There are other issues. For example-- 15 Q. I am not talking about other issues. I am trying 16 to settle the issue, sir, like we started out this morning of 17 Doctor Roush saying that they could not give you and did not 18 give you the terminated employees and this document confirms 19 that you settled upon, according to this document, that you 20 settled upon those persons associated with the 1949 TCP 21 accident. Does it not, sir? 22 A. No, sir. 23 Q. Doesn't it say that, sir? 24 A. No. The first sentence is incorrect, sir. 24 1 Q. Doesn't it say that? sir? 2 A. The first sentence is incorrect, sit. 3 MR. CARR: Your Honor, would you direct the witness 4 answer my question? 5 THE COURT: Doctor, answer the question that is 6 asked of you, not another question* Listen to the question 7 and answer that alone. I have asked you to do that many 8 times* I would appreciate it if you follow that. 9 A. Yes, sir, 10 Q, Doesn't it say that, sir? 11 A. That is what it says, sir. 12 Q. Thank you, Doctor. Now, Doctor, in addition -- 13 strike that. 1 hand you now what has been marked Plaintiffs' 14 Exhibit 1804. Doctor, were you acquainted with a young man, 15 medical employee, Mr. William R. Brooks. Turn to the second 16 page, his name appears. Maybe it will help you. He worked 17 with you in the morbidity study? 18 A. A Doctor William R. Brooks? 19 Q. He wasn't a doctor. I think he was a medical 20 student. He was working in the medical department in 21 Monsanto with you? 22 A. I don't recall that he worked with us, sir. 23 Q. I am sorry? v 24 A. I don't recall that he worked with us, no. : 25 1 Q. Well# he worked with this study* He assisted you? 2 A* No, he did not, sir. He is not listed and you know 3 it. He is not listed among the employees who we used. 4 Q. Doctor, I appreciate it very much if you would not 5 say I know it because this man has been identified by Doctor 6 Roush. 7 f?R. HEINEMAN: Objection, Your Honor. May counsel 8 approach the bench? 9 THE COURT: Yes, you may. 10 (Bench conference had out of the hearing of the 11 jury.) 12 MR. HEINEMAN: Prom my recollection of the 13 testimony, that is a flat misstatement. Roush said that this 14 man was not an employee of the company. 15 MR. CARR: He testified he was a medical student 16 working for the company; that they had been working on this 17 study and assisting in getting the employees there and other 18 things. 19 MR. HEINEMAN: I don't believe that. 20 THE COURT: I think this is the one that he said 21 was working there during the summer. 22 MR. CARR: That is correct. 23 THE COURT: Who did this? v 24 MR. HEINEMAN: What summer? *84, Your Honor? ' 26 1 THE COURT: Whatever summer it was. Wait a 2 second. I think this is the person who was employed as a 3 summer worker. 4 MR. HEINEMAN: He has not been identified by Doctor 5 Roush as an employee of the company. He has not been 6 identified by Doctor Roush. 7 MR. CARR: I don't quarrel with that, counsel. It 8 is in the record that he was working for Monsanto and he 9 prepared these various reports for Monsanto. And without 10 identification by this witness, I will offer this exhibit 11 into evidence. 12 THE COURT: My recollection is that he was a summer 13 employee they had doing this. 14 MR. CARR: I think you are right, Your Honor. 15 THE COURT: And I would stand by my recollection 16 and -- 17 MR. CARR: Counsel agrees he was a summer employee. 18 MR. HEINEMAN: My objection, Your Honor, is that 19 Doctor Roush did not identify this man as a summer employee 20 and he has not been identified by any other witness as a 21 summer employee. 22 MR. CARR: Counsel, didn't you just state that he 23 was a summer employee? 24 MR. HEINEMAN: No, I didn't just state he was a 27 1 summer employee. 2 MR. CARR: Was he an employee of Monsanto? 3 MR. HEINEMAN: I don't have the vaguest idea. 4 THE COURT: I think he was at the time. I don't 5 remember whether you were here or not, frankly* 6 MR. HEINEMAN: Well, I was here for Roush's 7 testimony and I object to this document. There has been 8 absolutely no foundation for this exhibit. It hasn't been 9 identified by this witness. It hasn't been authenticated by 10 the witness. It is hearsay. There is no statement that the 11 author is an employee of Monsanto Company and I object to 12 it. There is no foundation laid for it at all. 13 MR. CARR: The exhibit itself is an exhibit that 14 bears the production number from Monsanto. Doctor A. Ford is 15 an acknowledged Monsanto employee. The introduction says "At 16 your request, and that is of Doctor Ford's request, I have 17 reviewed plant documents concerning the University of 18 Cincinnati health study conducted in June of '79." Basically 19 there is no question that this is a company document that you 20 furnished to us and it certainly is self authenticated. 21 THE COURT: It is admitted over objection. 22 (The following proceedings were had in the hearing 23 and presence of the jury). 24 Q. Doctor, I wish to withdraw an assertion that I made 28 1 because I am not now sure that it is correct that Mr* Brooks 2 was an employee working at the time of your study or working 3 with you. The information that we have is that he was an 4 employee of Monsanto subsequent to that time and I don't have 5 my finger on it that he was working for you at the time and 6 you have no recollection of him, is that correct, sir? 7 A. No. 8 Q. According to this report, Doctor -- 9 MR, CARR: Your Honor, I have copies of the last two 10 pages of the exhibit 1804 that I would like to pass to the 11 jury. 12 THE COURT: You may do so. 13 (Last two pages of Plaintiffs' Exhibit 1804 are 14 passed to the jury). 15 Q. Doctor, the last two pages, have you had an 16 opportunity to read this? 17 A. I have, sir. 18 Q. Doctor, the last two pages summarizes, according to 19 Mr. Brooks, the classification of the individuals that 20 participated. That is, the exposed groups that participated 21 in your health study, correct, sir? 22 A. Yes, I believe it does. 23 Q. And, Doctor, it breaks them down into the various v 24 categories whether they are active or retired, either 29 1 salaried or hourly personnel and there is one category of 2 exposed, terminated and another category of exposed, active 3 retired and another category exposed, vested retirees and 4 another one intermittent salaried, active and another one 5 intermittent, retired salaried and another one intermittently 6 exposed, correct, sir, hourly retired? 7 A. That is what this memorandum indicated, sir. 8 Q. And within each of those categories, of course 9 applicable, it is broken down into those with chloracne and 10 to those without chloracne that were part of this study, 11 correct, sir? 12 A. Yes, sir. 13 Q. And it shows that, for instance, in the exposed, 14 active salaried employee, there were 25 that had chloracne 15 and 12 that did not? 16 A. Yes, sir. 17 Q. And it shows the same thing for the exposed, 18 retired with salary, rather, 16 with and one without, 19 correct, sir? 20 A. That is what it shows, sir. 21 Q. And over to the right there it shows the column of 22 the numbers to the left show the number of employees 23 involved, the column in the middle of the page shows the 24 number that participated, is that correct, sir? 30 1 A. Yes, it does. 2 Q. For instance in the active salaried personnel there 3 were 25 that were exposed with chloracne and all 25 4 participated? 5 A. Yes, sir. 6 Q. 12 without chloracne and nine of those, that is 75 7 percent participated, correct, sir? 8 A. Are you referring to the first group, sir? 9 Q. I am. 10 A. Yes. 11 Q. Is that correct, sir? 12 A. Yes, that is correct. 13 Q. And, Doctor -- 14 A. In this report it is correct. 15 Q. And, Doctor, on the last page there, it summarizes 16 that of the 210 persons in the exposed group with chloracne, 17 146 participated. Do you see that, sir, according to this? 18 A. According to Monsanto records, sir. 19 Q. Is that right? 20 A. According to Monsanto records. 21 Q. It is not even according to Monsanto's records. 22 According to this man's interpretation of Monsanto's records, 23 correct, sir? 24 A. I say according to his view of the Monsanto v 31 1 records. 2 Q. That is what I am asking you* Doctor. 3 A. Okay, ^ 4 Q. Doctor, that is what I am asking you about. 5 A. Okay. 6 Q. And according to this document, of the 64 that were 7 exposed who did not have chloracne, 36 of those participated 8 in the study, correct, sir, according to this document? 9 A. According to this document, sir. 10 Q. Now, Doctor, that would be a total of 182 in the 11 exposed group that participated, that participated, correct, 12 sir? 13 A. I don't follow that, sir. 14 Q. If you add those with chloracne and those without 15 chloracne, you get a total, do you not, sir, of 182? 146 16 with chloracne and the 36 without chloracne? 17 A. According to the Monsanto way of classifying, yes, 18 sir, but not ours. 19 Q. Doctor ~20 MR. CARR: Your Honor, would you direct the jury to 21 disregard what the doctor said. He knows I am talking about 22 this document. 23 A. Yes, sir, okay. 24 THE COURT: That answer was not responsive to the 32 1 question, ladies and gentlemen. You ace ordered to disregard 2 it. Doctor, please Keep your answers confined to the 3 question that was asked of you. No more, no less. Listen to 4 the question carefully, respond to that question and that 5 question only. 6 Q. Doctor, according to this August of 1984 analysis, 7 182 persons in the exposed groups participated in this study, 8 is that correct, sir? 9 A. If one adds that, that is what one can get from 10 this particular report, sir, yes. 11 Q. And, Doctor, that would indicate, according to this 12 report, that there were/ in fact, insofar as exposure is 13 concerned, at least 64 of those employees that could be 14 identified who were exposed who did not get chloracne, is 15 that correct? 16 A. According to this report, sir. 17 Q. All right. And, Doctor, you, yourself, identified 18 at least 28 in the exposed group who did not get chloracne, 19 correct, sir? 20 A. That is correct, sir. 21 Q. So, you do acknowledge, sir, that you can be 22 exposed to dioxin and not get chloracne, isn't that correct? 23 A. I have done so previously, sir, yes, sir. 24 Q. And, Doctor, you also agree, do you not, sir, that 33 X you can absorb the dioxin by skin contact, contact ingestion 2 or inhalation in humanbeings, correct, sir? 3 A. No, sir. 4 Q. Doctor, when you -- - you said no, sir, yesterday as 5 well. I thought perhaps you might reconsider it overnight. 6 When you say exposed, sir, when you put somebody in the 7 exposed group, don't you mean a person that has, is in a 8 position to absorb 2,4,5-T or its contaminants either by 9 contact, ingestion or inhalation. Don't you mean that, sir, 10 when you say it? 11 A. No, sir. 12 Q. Doctor, you recall you were under oath in the 13 federal court case on March 13, 1985. This is p a g e 28709, 14 counsel, of that day. 15 MR. HEINEMAN: Could we take a moment? 16 MR. CARR: Surely. 17 Q. Doctor, the plaintiff's attorney at that time asked 18 you this question, did he not? Line six, counsel. "Doctor, 19 you defined exposure as a person who was in a position to 20 absorb 2,4,5-T or one of its contaminants and that would be 21 either through the skin or breathing it or ingesting it in 22 some fashion, is that right? And your answer was yes"? 23 A. That is right. 'v 24 Q. Was that your answer at that time, sir? 34 , 1 A. Position to be exposed/ sir. That means 2 potentially exposed. 3 Q. Doctor, was that your answer? 4 A. That was my answer. That was my answer. 5 Q. And, Doctor, was that the truth then? 6 A. Oh, it certainly was the truth then. 7 Q. Then one can absorb 2,4,5-T or its contaminants by 3 either through the skin or breathing it or ingesting it, 9 isn't that correct, sir? 10 A. No, sir, that is not what it says, it says if one 11 is potentially exposed. 12 Q. Doctor, it doesn't say potentially. 13 A. Position to be exposed. It reads position. 14 Q. Doctor, position to absorb it. If what you mean by 15 exposure, what you meant by exposure in the federal court in 16 West Virginia, what you meant there by exposure, sir, was any 17 person who was in a position to absorb TCDD either through-- 13 to absorb 2,4,5-T or one of its contaminants and that would 19 be either through the skin or breathing it or ingesting it in 20 some fashion, is that correct, sir? 21 A. That is what it says, sir,. 22 Q. Doctor, I know that is what it says but that is the 23 position you took in the federal court, is it not, sir? 24 A. I did, sir. 35 1 Q. And the position you have taken here is that you 2 cannot absorb 2,4,5-T by ingesting it or by inhaling it, 3 isn't that correct, sir? 4 A. No, that is not the position -- 5 Q. Isn't that the position you just took here? 6 A. No. My answer is no. 7 Q. Would you please go back and find the answer so we 8 can get that straight. That question and that right before I 9 referred to this document. 10 COURT REPORTER: "And, Doctor, you also agree, do 11 you not, sir, that you can absorb the dioxin by skin contact. 12 contact ingestion or inhalation in humanbeings, correct, sir? 13 Answer: No, sir." 14 A. Yes, I did say that. 15 Q. Yes, you did? 16 A. Yes, sir. ,v : 17 Q. Doctor, have you seen some scientific work since 18 March 13, 1985, that would cause your statement at that time 19 to no longer be true, sir? 20 A. No, I haven't seen -- 21 Q. And, if so, what work, sir? 22 A. I haven't seen any work that would change my mind, 23 sir. 24 Q. vNow, Doctor, you have agreed, I take it, now that a 36 1 person can get, can absorb dioxin by breathing it, by 2 ingestion or by skin contact, is that now correct*, sir? 3 A. No, sir, I didn't say that. 4 Q. 5 court? Oh, isn't that what you said# sir, in the federal 6 A. No, sir. 7 Q. Doctor, you did not say that you can absorb the 8 2,4,5-T either through the skin, breathing or ingesting it? 9 A. That is what I said. Hold it-- - 10 Q. Is that the truth? 11 MRv HEINEMAN: Objection. 12 A. Position to be absorbed. You are confusing the 13 issuer sir. 14 Q. Doctor, let me read it to you carefully. 15 A. Position to be absorbed. That is different, sir. 16 Q. Doctor, if you are in a position to absorb it, you 17 have to be in a position to breathe it, don't you, sir. 18 Doctor, you have told us here yesterday and today ~ 19 A. I don't know what you are saying, sir. 20 Q. That you cannot absorb 2,4,5-T and its contaminants 21 by breathing it or by ingesting it, did you not, sir? 22 A. No, I did not, sir. 23 Q. Would you want to read the question again? 24 A. Please do. 37 1 Q. Would you find that question again? 2 MR. HEINEMAN: Objection, Your Honor. May counsel 3 approach the bench? 4 THE COURT: Yes, you may. 5 (Bench conference had out of the hearing of the 6 jury.) 7 MR. HEINEMAN: Mr. Carr keeps continually 8 misstating what this witness has previously said. The 9 question that he is reading back has to do with all three 10 entries. Then he only mentions two. He says well didn't you 11 say that you could absorb it by eating or breathing and he 12 said no, I didn't say that because the witness previously 13 said that pica or children eating dirt does occur so he is 14 not saying that he never said that you can't absorb it by 15 ingestion. So that it is totally misleading what Mr. Carr is 16 doing. 17 MR. CARR: Do you want to read the question and the 18 answer again? 19 MR. HEXNEMAN: Which question? 20 MR. CARR: That I just asked this morning prepatory 21 to reading this document which you read and the Court heard 22 and I am asking the Court Reporter to again read the same 23 question so there wouldn't be any question but what I asked 24 that very same thing. 38 1 MR. HEINEMAN: Which very same thing? 2 MR. CARR: That you can get it, you can absorb it 3 either by breathing it, eating it or by contact. 4 MR. HEINEMAN: But that isn't what you just now 5 asked. 6 MR. CARR: Oh, yes, I did* 7 MR. HEINEMAN: No, sir. You asked him about eating S' and breathing and he said no, I didn't say you could do it by 9 eating and breathing because he previously had said yesterday 10 that you could absorb it by ingestion. 11 MR. CARR: It is pure nonsense. 12 THE COURT: Overruled. 13 (The following proceedings were had in the hearing 14 and presence of the jury). 15 MR. CARR: Would you find that question against 16 that you just read and his answer? 17 COURT REPORTER: "And, Doctor, you also agree, do 18 you not, sir, that you can absorb the dioxin by skin contact, 19 contact ingestion or inhalation in humanbeings, correct, sir? 20 Answer: No,'sir.". 21 A. Yes, sir. That is what I answered, sir. 22 Q. You did say, sir, just this morning that you cannot 23 get it by skin contact, ingesting it or by breathing it, did, 24 you not, sir? 39 1 A. You asked me about all three, sir, and 1 said no, 2 sir, to all three, 3 Q. Doctor, did you hear the word "or" in there? 4 A. No, but -- 5 Q. Well, read it again to make sure that you heard the 6 word "or* in there 7 COURT REPORTER: "And, Doctor, you also agree, do 8 you not, sir, that you can absorb the dioxin by skin contact, 9 contact ingestion or inhalation in humanbeings, correct, sir? 10 Answer: No, sir." 11 Q. Did you hear the word "or" in there, sir? 12 A. Even if there is no "or"* 13 Q. Did you hear the word "or"? 14 A. No, I didn't here an "or". 15 Q. Read it to him again. 16 COURT REPORTER: "And, Doctor, you also agree, do 17 you not, sir, that you can absorb the dioxin by skin contact, 18 contact ingestion or inhalation in humanbeings, correct, sir? 19 Answer: No, sir." 20 A. I didn't hear an "or". 21 Q. Read it to him again so he can hear the "or". 22 COURT REPORTER: "And, Doctor, you also agree, do 23 you not, sir, that you can absorb the dioxin by skin contact^ 24 contact ingestion or inhalation in humanbeings, correct# sir? 40 '. 1 Answer: No# sir." 2 A. I heard the word "or". 3 Q, All right. And you said this morning# then# just 4 exactly as the Court Reporter read it# did you not# sir? 5 A. Right, sir. 6 Q. But in Nitro# West Virginia# you said you defined 7 -- this question. "You defined exposure as a person who was 8 in a position to absorb 2# 4,5-T or one of its contaminants 9 and that would be either through the skin or breathing it or 10 ingesting it in some fashion# is that right?" And your 11 answer there was "Yes"# isn't that correct# sir? 12 A. That is correct# sir. 13 Q. And# Doctor# the word "or" was included there as 14 well# was it? 15 A. It sure was. 16 Q. Yes. Now# Doctor# do you now agree that a person 17 exposed to 2,4,5-T or its contaminants can absorb that .18 contaminant or 2#4#5-T through the skin or by breathing it# 19 that is# inhaling it or by eating it# by ingestion# do you 20 not? 21 A, No# I do not# sir. 22 Q. Doctor# has there been something that has happened 23 in between March of 1985 and today to make you now conclude , 24 that a person cannot absorb it either through the skin or 41.. 1 breathing it or ingesting it in some fashion? 2 A. No. There hasn't been anything that has changed my 3 mind, sir. That says something different than what I said 4 today, sir. 5 Q. Oh, you think it says something different? 6 A. Yes, it does. 7 Q. Doctor, let me read it to you again carefully, 8 sir. You defined exposure as a person who was in a position 9 to absorb 2,4,5-T or its contaminants. We got that down 10 straight? 11 A. Uh-huh. 12 Q. Exposure is a person who is in a position to absorb 13 TCDD, right, sir? Is that correct, sir? 14 A. No, not necessarily. 15 Q. Doctor, the question is: "Doctor, you defined 16 exposure as a person who was in a position to absorb 2,4,5-T 17 or one of its contaminants". Didn't you say that, sir? That 18 is how you defined exposure? 19 A. That is what I said, sir. 20 Q. So, your definition of exposure is a person who is 21 in a position to absorb it, correct, sir? 22 A. Correct, sir. 23 Q. And that may be -- the absorption of it may be, 24 according to your testimony in the federal court, either 42 1 through the skin or breathing it or ingesting it in some 2 fashion, is that correct, sir? 3 A. Is that how it reads, sir? 4 Q. Doctor, I read it to you five times* 5 A. Yes, sir. 6 Q. And, Doctor, then is it true that a person may 7 absorb TCDD through the skin or by breathing it or by 8 ingesting it? 9 A. I have answered the question, sir. 10 MR. CARR: Would you direct the witness to answer 11 the question? 12 A. And my answer is no. 13 Q. Doctor, you said in the federal court the answer 14 was yes, did you not, sir? 15 A. No, I did not. 16 Q. Would you want to read it again, Doctor? 17 A. It is a different kind of statement. 18 Q. Excuse me. Would you read that question to 19 yourself and tell me whether or not you said yes to that 20 question? 21 A. I said in a position to absorb. That is 22 potential -- 23 Q. Doctor, read . 24 A. And the likelihood of being -- - . '43. 1 THE COURT: Doctor, you were asked to read the 2 question to yourself. There is not a question posed to you 3 that would require an oral answer. Please read it to 4 yourself and then wait for the next question. 5 A. I havef sir. 6 Q. Now, Doctor, after having read it to yourself, did 7 you not say that a person can absorb TCDD through the skin by 8 ingesting it or by inhaling it, by breathing it? 9 A. Not in the way you state it, sir. 10 Q. Doctor, would you want to read that question and 11 your answer outloud so maybe perhaps -- 12 A. "Doctor, you defined exposure as a person who was 13 in a position to absorb 2,4,5-T or its contaminants and that 14 it would be either through the skin or breathing it or 15 ingesting it in some fashion, is that right, sir? Yes". 16 Q. And, Doctor, you said there that you can absorb 17 it. In what manner can you absorb TCDD, sir? 18 A. You might absorb it -- you might absorb it if you 19 were in a position to absorb it. 20 Q. Yeah, and how would you absorb it if you are in a 21 position to absorb it? That is, if you are exposed to it? 22 A. Through the skin or through ingestion or through 23 the respiratory tract. - 24 Q. And, Doctor, you said today that you couldn't do 44 1 that, didn't you, sir? 2 A. I did* 3 Q. All right. Doctor, and what you said today wasn't 4 the truth, was it, sir? 5 A. Oh, it was, sir. 6 Q. Didn't you just say today that you couldn't do 7 that? 8 A. No, I did not. 9 Q. Doctor -- 10 A. These are two different situations. 11 Q. Would you just read the question -- 12 A. Two different questions. 13 Q. Would you just read the question that I just asked 14 him where he said yes that is what I said to him. 15 COURT REPORTER: "And, Doctor, you said today that 16 you couldn't do that, didn't you, sir? Answer: I did." 17 A. Yes 18 Q. You said today that you couldn't do it and your 19 response was yes, isn't that right, sir? 20 A . Y e s * 21 Q. All right. Now, Doctor, in the federal court you 22 said you could do it and you also said today that you could 23 do it. Now, which is the truth? Which of those statements v 24 is the truth, sir? 45 1 A. They are both the truth because they are different 2 questions and they are different situations. In the one 3 instance# sir -- . 4 Q. Doctor# the question is the same. Now# is it the 5 truth? 6 A. The likelihood of absorption -- 7 MR. CARR: Your Honor, would you ask the witness to 8 wait until I ask him the question? 9 MR. HEINEMAN: Objection. May counsel approach the 10 bench? 11 THE COURT: Yes# you may. 12 (Bench conference had out of the hearing of the 13 Jury.) 14 MR. HEINEMAN: You see# Your Honor, typical of Mr. 15 Carr's disingenuous technique is that he gives him a 16 statement the questions are the same. Now# Doctor# and he 17 goes on. The questions aren't the same and that is what this 18 witness is trying to point out. The questions aren't the 19 same. So he is arguing with the witness. He makes a 20 statement and then goes on with the question. I object to 21 the statement. If it is part of the question, then the 22 witness ought to be allowed to answer it and respond to it. 23 That he disagrees that the questions are the same. If it is ^ 24 part of the question# he should be allowed to do that. If it 46 " 1 isn't, then it should be stricken as a statement and the jury 2 should be instructed to disregard it and I object to it* 3 THE COURT: Do you have anything you want to say? 4 MR. CARR: Counsel's statement is absurd. The 5 witness said here that you couldn't do it through the skin or 6 by ingesting it or by inhaling it. He admitted that he just 7 said it and now he is saying that you can't do it or you do 8 it or you don't do it. He is saying anything that comes to 9 his mind. He is not answering my questions directly. 10 MR. HEINEMAN: You haven't responded to ray 11 objection. Mr. Cart. 12 THE COURT: I think he has. Objection is 13 overruled. 14 (The following proceedings were had in the hearing 15 and presence of the jury). 16 Q. Would you read the last question that I asked? 17 COURT REPORTER: "Doctor, the question is the 18 same. Now, is it the truth?" 19 A. Yes, it is the truth, sir. 20 Q. Now, which is the truth? That you can absorb it 21 through the skin or by ingesting it or by breathing it? Is 22 that the truth or is the truth that you can't absorb it 23 through the skin, by breathing it or by ingesting it? Which, 24 is the truth? 47 1 A* I cannot answer that question because -- 2 MR. CARR: Would you direct the witness to answer 3 that question and just that question, Your Honor? 4 MR. HEINEMAN: Your Honor# may counsel approach the 5 bench? 6 (Bench conference had out of the hearing of the 7 jury.) 8 MR. HEINEMAN: There is an opinion which I have 9 read, Judge, and I will be glad to show it to you, that says 10 if a witness says he can't answer it in that form, he is 11 entitled to say that. 12 THE COURT: He is entitled to say it. I have heard 13 this witness on this witness stand for days. I have heard 14 his responses to questions. I don't believe that answer. He 15 is capable of answering that question and I am ordering him 16 to answer it. Because he says he is not capable of it and 17 that is not binding me to his opinions that he is not capable 18 of it. I do not accept his opinion that he is not capable of 19 it. Your objection is overruled. 20 MR. HEINEMAN: You would agree with me, Your Honor, 21 would you not, about the case that says he can answer yes, he 22 can answer no? 23 THE COURT: I haven't seen your case. Would you . 24 show it to me and 1 will read it. I will tell you whether I 48 1 agree with you, with your opinion of the case or not. I am 2 telling you that his answer he is not capable of answering it 3 does not buy me. Your objection is overruled. 4 MR. HEINEMAN: Your Honor, when you do that, when 5 you make a statement like you have made and you order him to 6 answer a question that he can't answer, you are indicating to 7 the jury that you don't believe his statement and that is an 8 abuse of discretion. 9 THE COURT: No, it is not. As a matter of fact, 10 that is not what I am indicating to the jury. Your objection 11 is overruled. 12 (The following proceedings were had in the hearing 13 and presence of the jury). 14 THE COURT: Doctor, I am ordering you to answer the 15 question that was asked of you in the manner that was asked 16 of you, no more, no less. 17 A. Would you repeat the question, please? 18 COURT REPORTER: "Now, which is the truth? That 19 you can absorb it through the skin or by ingesting it or by 20 breathing it? Is that the truth or is the truth that you 21 can't absorb it through the skin, by breathing it or by 22 ingesting it? Which is the truth?" 23 A. I believe they are two different questions, sir. 24 Q. They are indeed two different questions, Doctor. I 49 1 am asking you to tell me which of those two statements is the 2 truth, sir? 3 A* Well, the second statement is **~ 4 Q. Excuse me, Doctor My question to you is to answer 5 which of those two statements is the truth, sir? 6 MR. HEINEMAN: He answered. I object. 7 THE COURT: The objection is overruled. 8 A. The second statement -- 9 Q. Doctor -** 10 MR. CARR: Your Honor, would you direct the 11 witness -- 12 Q. Are you saying the second statement is the truth, 13 Doctor? Which statement is the truth? Is the second 14 statement the truth? 15 A. The second statement is different. 16 Q. It is different. I gave them to you different. 17 A. How is it different? 18 MR. CARR: Would you direct the witness to answer 19 the question? 20 THE COURT: I didn't order you to ask a question of 21 the attorney questioning you. I ordered you to answer the 22 question. Now, I am ordering you to do that again. Please 23 follow the order of this court and answer the question that 24 was asked of you. 50 1 A* Your Honor, I don't understand it. 2 THE COURT: Doctor, answer the question. 3 A. Would you read the question again, please. 4 COURT REPORTER: "Are you saying the second 5 statement is the truth, Doctor? Which statement is the 6 truth? Is the second statement the truth?" 7 A. You can't absorb it is the truth. What I am saying 8 is that the second part that you cannot absorb it by 9 breathing it or through the skin, that is what I would regard 10 as the truth, sir. You cannot -- > 11 Q. That you cannot absorb it by breathing it or 12 through the skin? 13 A. Well -- 14 Q. Doctor, now you are really going off base. 15 A. No. You included the two together and I can't 16 include the two together. 17 Q. Doctor -- 18 A. That is why it is confusing, sir. 19 Q. Doctor, it was -- . 20 A. Please don't confuse me. 21 Q. Doctor, they were all three included together, were 22 they not? 23 A. No. There were two in the last sentence. 24 Q. Doctor, if you would let me finish. V 51 1 A. That is why I am confused. 2 Q. There were not two in the last sentence. 3 THE COURT: Let him finish. 4 Q. Doctor which is the truth? You can absorb TCDD 5 either through the skin or breathing it or ingesting it. Is 6 that statement the truth* or is this statement the truth. 7 You cannot absorb it either through the skin or breathing it 3 or by ingesting it? 9 A. You cannot absorb it by breathing it. 10 Q. All right. Now* D o c t o r -- 11 A. If you include all of the three* you cannot. 12 Q. That is correct. Now* in the federal court you 13 said you could absorb it by breathing it* did you not* sir? 14 A. No, I did not. 15 Q. Doctor* let me read it to you again. "Doctor* you 16 defined exposure as a person who is in a position to absorb 17 2*4*5-T or one of its contaminants and that would be either 18 through the skin or breathing it or ingesting it in some 19 fashion*" and your answer was, "Yes". 20 A. Correct. 21 Q. Now, Doctor* so you said in the federal court that 22 you could absorb it by breathing it, did you not* sir? 23 A. If you were in a position to do so* yes. 24 Q. Doctor* you said you could absorb it if you are in 52- 1 a position to do so by breathing it, did you not, si? 2 A. If you were in a position to do so. 3 Q* Obviously. You have to be in a position to breathe 4 it, otherwise you could never absorb it, not even through the 5 skin? 6 A. No, sir. Because the likelihood of -- 7 Q. Doctor -- 8 A. -- of breathing it in is almost zero and that is 9 the point, sir. 10 Q. Doctor -- 11 A. The likelihood of breathing it in is almost zero. 12 Q. Doctor, your answer in the federal court was that 13 you could absorb it by breathing it. 14 A. Potentially. 15 Q. Was that correct, sir? 16 A. Potentially. 17 Q. Can you absorb it by breathing it? 18 A. I said there yes. If you are in a position to do 19 so. 20 Q. And you said here no? 21 A. 22 zero. Absolutely because the likelihood of doing it is 23 Q. Doctor, which is the truth? Can you absorb it by 24 breathing it or not? Which is the truth? 53 1 A. That is not the question, sir. 2 Q. That is indeed the question. Which -- 3 A. In this instance -- 4 MR. CARR: Your Honor, would you direct the witness 5 that I am asking the question and the question is, Doctor, 6 can you absorb it by breathing it or not? 7 THE COURT: Doctor, you have to answer that 8 question. 9 A. My answer to that question is no. 10 Q. Doctor, your answer to that question in the federal 11 court was yes? 12 A. It was a different question, sir. 13 Q. Doctor, your answer in the federal court was yes? 14 A. To a different question. 15 Q. Doctor, I will ask you the same thing. If you are 16 in a position to absorb 2,4,5-T, can you absorb it by 17 breathing it? 18 A. My answer there was yes. 19 Q. And what is your answer here in this court? If you 20 are in a position to absorb 2,4,5-T, can you absorb it by 21 breathing it? 22 A. If you are asking that same question, are you? Are 23 you asking the same question? 24 Q. Did you hear my question, Doctor? Did you hear my 54 1 question? If you are in a position to absorb 2,4,5-T, can you 2 do it by breathing it# sir? 3 A. My answer is the same as it was there. Yes. 4 Q. Then you can do it then. So, Doctor, you can 5 absorb 2,4,5-T and its contaminants either by skin contact or 6 by breathing it or by ingestion, is that correct, sir? 7 A. No, sir. 3 Q. That is not correct? 9 A. No, sir. 10 THE COURT: Mr. Carr, let's take a short break at 11 this point in time. We will take a short recess and then 12 resume testimony and remind you you are not to discuss this 13 matter among yourselves, with anyone outside the jury panel 14 or as of yet form any opinions or conclusions about the 15 matters on trial. Court is in a short recess. 16 COURT RECESSED: 17 (The following proceedings were had in the hearing 18 and presence of the jury). 19 THE COURT: Ladies and gentlemen before we start 20 back, let me make two announcements. This afternoon we are 21 going to have a slightly abbreviated schedule. We are going 22 to break for lunch between twelve and one o'clock. Start 23 promptly at one. We will break between 2:15 and 2:30 for the 24 day. 55 1 The second announcement is next Tuesday which is 2 April 1st we will not be having court so we will have court 3 Monday and then Wednesday, Thursday and Friday. 4 RAYMOND STO1NP 5 having resumed the witness stand, being previously sworn, 6 testified further as follows: 7 CROSS EXAMINATION 8 Sy 9 MR. REX CARR. 10 Q. Doctor, on this business of breathing, absorbing it 11 by breathing it, wouldn't a worker be at risk to absorb? 12 Wouldn't a person be at risk to absorb or have a potential to 13 absorb dioxin by breathing it if it were in the dust? 14 A. The likelihood of his being able to absorb -- 15 Q. Doctor, I am not asking you about the likelihood. 16 I am asking you whether or not there does not exist the 17 potential for absorbing TCDD by breathing it if it is in the 18 dust, sir? 19 A. The potential is there. 20 Q. Yes, Doctor. 21 A. Depending upon the load, depending upon -- and I 22 think you asked me that once before about a restaurant. 23 Q. Doctor, please just answer my question, would you, '' 24 sir? 56 1 A. Okay. 2 Q. Is the potential for absorbing dioxin present if 3 the dioxin is in the dust and if you are breathing in the 4 dust? 5 A. The potential is there, sir. 6 Q. Now, potential means it has the power, that it is 7 possible, that it may occur, isn't that correct, sir? 8 A. That is what I believe the definition is but the 9 likelihood is something else. 10 Q. Doctor, I am not talking about the likelihood, am 11 I, sir? We are talking about potential, are we not, sir? My 12 question is, sir, if you breathe in, if you are in an area 13 where there is dust in the air and that dust contains TCDD, 14 does not the potential exist to absorb the TCDD that is in 15 the dust by breathing in the dust? 16 A. My answer to that would be no, sir, it would not. 17 Q. Doctor, you have testified in the federal court 18 that there would be a potential. Well, I am sorry, p a g e -- 19 A. Correct. 20 Q. I will ask you, Doctor, whether or not these 21 questions were asked you, Doctor, and whether or not these 22 were your answers on page 28711. 23 MR. HEINEMAN: Same date? 24 MR. CARR: The same date, yes, counsel. ' 57 1 Q. "And so if you were doing your study on the Seveso 2 people under the same criteria, the persons who were in the 3 path of the cloud or who were in the area where the dioxin 4 was in the soil or on the soil would be classified as exposed 5 for purposes of the study?" And your answer was, "Or 6 potentially exposed". Is that correct, sir? 7 A. I would say potentially exposed. 8 Q. Well, ray question, sir, do you recall that, and it 9 wasn't a question. Do you recall that question being asked 10 you and that being your answer? 11 A. No, I don't. I honestly don't. 12 Q, Well, was it the truth then, sir? 13 A. Sure. 14 Q. Did you answer that question in the way that I read 15 it that they would be classified as exposed for the purpose 16 of the study or potentially exposed? 17 A. And my answer was the truth, sir. 18 Q. My question, sir, is did you say that? Did you say 19 they would be exposed or potentially exposed if they were in 20 this, in the path of this cloud of dust or on the soil, sir? 21 MR. HEINEMAN: Your Honor, may counsel approach the 22 bench? 23 THE COURT: Sure. - v 24 (Bench conference had out of the hearing of the 58 1 jury.) 2 MR. HEINEMAN: Your Honor# the answer doesn't say 3 exposed. It says potentially exposed and Mr. Carr 4 suggested -- * 5 MR. CARR: That is what I said. 6 MR, HEINEMAN: You said didn't you say exposed or 7 potentially exposed. 8 MR. CARR: That is what he is saying. 9 THE COURT: Wait. You guys are ahead of me. Let 10 me read the whole question and the answer. Objection is 11 overruled. 12 (The following proceedings were had in the hearing 13 and presence of the jury). 14 Q. Doctor, you do agree that you said at that time 15 these people would be classified as exposed or potentially 16 exposed, did you not, sir? 17 A. If that is what I said, that is what I said, sir. 18 Q. Not if that is what is said. You did say that, 19 didn't you, sir? That was your answer? The question was 20 would they be classified as exposed for purposes of this 21 study. Your answer was quote, or potentially exposed. 22 Wasn't that your answer? 23 A. My answer was -- yes, sir. 24 Q. So, you are saying there that they would be 59 1 classified either as exposed or potentially exposed, did you 2 not, sir? 3 A. That was my answer, yes, sir. 4 Q. Now, Doctor, they would be exposed or potentially 5 exposed by virtue of the fact that they could absorb dioxin 6 by breathing in the cloud of dust if there was dioxin in that 7 Cloud of dust at a particular level, correct, sir? 8 A. No. 9 Q. Well, Doctor -- 10 A. There was more than that. There was skin contact 11 too, there. 12 Q. Doctor, my question is talking about breathing, 13 though, sir. My question is, sir, would they not be -- would 14 there not be the potential of exposure of being absorbed by 15 breathing in the dust that has the TCDD in it at some level, 16 sir? 17 A. In that instance, yes. It was a cloud. 18 Q. Well, Doctor, in the instance of breathing in the 19 dust, correct, sir? 20 A. No, sir. 21 Q. No? Isn't that what you said, sir? 22 A. Yes. 23 Q. Well, Doctor, if you said that, that is by 24 breathing in the dust, is it not, sir? 60 1 A. No# it is not. It is the quantity of the dust# 2 sir# and at Seveso there was a cloud. 3 Q. Doctor# I am not talking about quantity. 4 A. I am* 5 Q. Doctor# do you recall the question being asked you? 6 A. Yes. 7 Q. And you did say# did you not# sir# they would have 8 the potential for absorption if it is in the soil where 9 people walked# worked or walked on or in the dust. They 10 would have the potential for absorption either by breathing 11 the dust or swallowing it, wouldn't they# sir? 12 MR. HEINEMANi Where is that? 13 A. In that instance# sir# in that particular instance# 14 yes. 15 Q. Then, Doctor, and you did testify that they could 16 absorb it by breathing in the dust# didn't you# sir? 17 A. In that instance. 18 Q. Yes. In that instance. Did you testify -- 19 A. In that instance# yes# sir. 20 Q. And if it is in the dust# you can breathe it in. 21 You can absorb it by breathing it In# can't you# sir? 22 A. Not any dust. No# sir. 23 Q. Doctor# the dust has to contain the TCDD# does it s' 24 not# sir? 61 1 A. It might. 2 Q. In order for you to breathe It? 3 A. It might or might not. 4 Q. In order for you to absorb TCDD by breathing it# 5 the TCDD has to be in the dust? 6 A, If it is# sir. 7 Q. That is always a predicate# isn't it# sir# that 8 there is TCDD in the dust at a level sufficient to absorb# 9 isn't that correct# sir? 10 A. That is a definition of exposure. Sufficient to be 11 absorbed. 12 Q. Well# Doctor -- 13 A. So one -- If that is my definition -14 Q. Doctor, my question# sir# is# I don't want to get 15 on another tangent# you can indeed absorb dioxin that is in 16 the dust by whatever level# sir# by breathing the dust or by 17 swallowing it# can you not# sir? 18 A. In that instance# yes. 19 Q. And in any other instance where the TCDD is in the 20 dust at a particular level and you breathe it in or swallow 21 it or touches your skin# isn't that correct# stir? 22 A. Not necessarily# sir. 23 Q. Doctor, not necessarily? I am not saying not 24 necessarily# am I# sir? If you can do it# sir, if you can 62 1 breathe it in, then you are absorbing it, aren't you, sir, if 2 you breathe it in and if it is in the dust? 3 A. No, sir. No, sir. Absolutely not 4 Q. Well, Doctor, can you absorb it if it is in the 5 dust by breathing it, breathing it in? 6 A. Not necessarily. 7 Q. Doctor, I didn't say not necessarily. My question 8 is, can it be done? Can you ingest it, sir? 9 Hr A. Yes, sir, you can in'gest it. ' 10 Q. Can you breathee it in, sir, and can you get it in 11 your by skin contact, sir? 12 A. Yes, you can. 13 Q. And it is the truth, is it not, sir, that you can 14 absorb TCDD either by skin contact or by breathing it or by 15 ingesting it, isn't that correct, sir? 16 A. No, sir. No, sir. 17 Q. Doctor, did you not say in the federal court that 18 you could do it either through the skin or breathing it or by 19 ingesting it? 20 A. If one is in a position. 21 Q. Didn't you say that? 22 A. I qualified it, sir. I qualified it. In a 23 position to absorb. 24 Q. Doctor, let's stop a moment. Is the word yes there 63 1 or not# sir? 2 A* It is sure there but it is a different question and 3 you know it. 4 Q. Doctor, let me read it to you again. 5 A. The respiratory tract -6 THE COURT? Doctor, please. You have answered the 7 question. Don't go beyond the question. Let the attorney 8 ask the next question. 9 A. Thank you, sir. 10 Q. Didn't you say, Doctor, that you defined exposure 11 as a person who was in a position to absorb 2,4,5-T, correct, 12 sir? 13 A. Correct. 14 Q. Or one of its contaminants, right, sir? 15 A. Correct. 16 Q. Exposure is a person who is in a position to absorb 17 2,4,5-T? 18 A. Correct. 19 Q. And that is what you said in the federal court? 20 A. That is, sir. 21 Q. And you can be in a position to absorb 2,4,5-T -- 22 if you are in that position to be absorb 2,4,5-T, it can be 23 either through the skin or breathing it or ingesting it in 24 some fashion, isn't that correct, sir? 1 A. That is true. 2 Q. All right. So it is true then sir, that if you 3 are in a position to absorb it, you can absorb it by 4 breathing it, isn't that correct, sir? 5 A. If you are in a position to absorb. 6 Q. That is what I said? 7 A. Through the respiratory tract. 8 Q. Isn't that correct, that if you are in a position 9 to absorb it, you can absorb it by breathing it? 10 A. If you are in a position. 11 Q. Doctor, would you answer that question? 12 A. Yes. 13 Q. Thank you, Doctor. So you can indeed then get the 14 TCDD in your system if you are in the position to, if you are 15 exposed to it, sir, by breathing it, by ingesting it or by 16 skin contact, correct, sir? 17 A. If you are in the position to absorb it and that is 18 a big if, sir. 19 Q. Doctor, and that has been the if all along? 20 A. No, it hasn't because in the respiratory tract -- 21 Q. For you to absorb it, you have to be in a position? 22 A. No, sir. In -- 23 Q. How can you absorb it if you are not in the 24 position to absorb it? v 65 1 A. The respiratory -- Let me answer that question* 2 Q. The question is, how can you absorb something if 3 you are not in a position to absorb it? 4 A. Let me answer that question. 5 Q. That is what I am asking you to answer. 6 A. Okay* 7 Q. Yes. Tell me how that can happen, sir? 8 A. Please let me finish, sir. In the respiratory 9 tract there are a large number of defenses and these defenses 10 consist of the hairs in the nose and the villi in the large 11 bronchi which push things away from the respiratory tract and 12 that is true of dusts. It is true of dusts. So that the 13 level, the level of dust or the level of TCDD is enormously 14 important and you have not considered that and a scientist 15 does so. 16 MR. CARR: Your Honor, would you direct the witness 17 to answer the question that I asked. 18 A. I am* That is the answer. 19 THE COURT: Doctor, please listen to the question 20 again. Listen to it as it is restated and answer that 21 question. Would you repeat the question, Mr. Carr? 22 MR. CARR: Would you read it to him, please? 23 COURT REPORTER: "Yes. Tell me how that can happen,^ 24 sir?" 66 1 A. That was the question# sir# and I am answering 2 that. 3 THE COURT: Not that question# the one before it. 4 COURT REPORTER: "The question is# how can you 5 absorb something if you are not in a position to absorb it?" 6 A. I will try to answer the question# sir. Now# if 7 the load of the dust is high enough# you might absorb some 8 through the respiratory tract# if -- 9 Q. Doctor# that isn't my question. 10 A. Yes# it is. You asked how can you absorb it and I 11 am telling you. 12 Q. That is half the question. My question is# how 13 can you absorb something if you are not in a position to 14 absorb it? 15 A. You have to be in a position to absorb it. 16 Q. Exactly correct, Doctor. That is what I am 17 asking. You cannot absorb something if you are not in a 18 position to absorb it# can you# sir? 19 A. That is correct# sir. 20 Q. All right. Doctor# now# that being true# when you 21 say# Doctor# that a person is in a position to absorb 22 something# you mean that they have to be in a position to 23 absorb it. They have to be present# isn't that correct# sir#, 24 at some level sufficient for their body to get it and take it 67 1 in, isn't that what you are saying sir when you say in a 2 position to absorb it? 3 A. Yes sir. And you have correctly stated it. In a 4 position and the level is important and in this instance the 5 level is tantamount. 6 Q. Would you mind just answering my question please 7 sir? I have told you from the beginning sir at a level. 3 The words have always been there. 9 A. You have not, sir. You never mentioned level until 10 I did. 11 Q. Was it mentioned in the federal court, sir? 12 A. It may have been mentioned in the federal court but 13 you didn't. 14 Q. Doctor, was it mentioned there? Was the question 15 asked you in the federal court that if you are in a position 16 to absorb it -- you define exposure as a person who was in a 17 position to absorb it, right, sir? 18 A. Correct. 19 Q. What does it mean there? In a position to absorb 20 it? 21 A. It means all the things I have just said. 22 Q. No, Doctor. I would like for you to tell me. When 23 you said here you defined exposure as a person who is in a 24 position to absorb 2,4,5-T, what did you mean there, sir? 68 1 A I meant that the level of concentration has to be 2 high enough whether it is a dust or a vapor or something 3 getting on the skin. That is the first factor. The second 4 factor, how did the defenses of this organ system, the skin 5 -- let me finish, sir. 6 Q. You are going beyond. You are describing how a 7 person absorbs it. I am not asking -- 8 A. Position to absorb, sir. 9 THE COURT: Doctor, please let him finish the 10 question so that you can be directed to that question. 11 MR. HEINEMAN: Your Honor, may counsel approach the 12 bench? 13 THE COURT: Yes, you may. 14 (Bench conference had out of the hearing of the 15 jury.) 16 MR. HEINEMAN: Your Honor, he is -- 17 THE COURT: Get over here so we are close to the 18 reporter. 19 MR, HEINEMAN: Wait a minute. Why do I have to be 20 here and he over there? 21 THE COURT: Because you are much bigger. You have 22 naturally a much louder and more booming voice and it is less 23 likely for the jury to overhear this if, number one, your 24 back is to the jury and you are talking directly to me rather 69 1 than at that angle. Just a second. Mr. Carr does not have 2 as large and as booming a voice and I do not have as strong 3 and as booming voice. This insures that the person with the 4 loudest voice we can position him so that the jury doesn't 5 overhear what is being said here and all of us should stay 6 close to the Court Reporter# too# so she can hear all of us. 7 MR. HEINEMAN: Then may we all face you so that Mr. 8 Carr while I am making my objection is not turning around and 9 preening and prancing and making faces at the jury while I am 10 making my objection? 11 THE COURT: I haven't seen that. 12 MR. HEINEMAN: Well# you are the only one in the 13 courtroom who has not seen it. 14 MR. CARR: I do not preen and I do not prance and I 15 have not made a face at the jury and the Court asked you to 16 move. You were not facing the jury when you were making 17 these statement, or not facing the Court# rather# when you 18 were making the statement. You were facing the jury. You 19 had your left arm on the podium# on the bench and you were# 20 well I take it back. You weren't directly facing the jury. 21 You were facing the witness. You were more facing the jury 22 than facing the Court. 23 MR. HEINEMAN: That is an outright falsehood. I 24 was facing the Court directly. If you are ordering me to be 70 1 here then I want you to order Mr* Carr to face you as well so 2 that he is not putting on a show for the jury while I am 3 making an objection* 4 THE COURT: Pine. You are both ordered to do that 5 and you are to stay in this position because of the fact of 6 your voice, 7 MR. HEINEMAN: Now, let me remember what I came up 8 here for. Let me think a moment. 9 THE COURT: I don't think you got to it yet. While 10 you are up here, I did get a chance to look at my notes and I 11 think, Mr. Carr, your position on this matter was correct so 12 you may make that statement. 13 MR. CARR: Yes, Your Honor. 14 THE COURT: I did get a chance to look at ray notes. 15 MR. HEINEMAN: Can I take a moment to confer with 16 counsel, Your Honor, and be right back because I am trying to 17 remember. 18 THE COURT: Go ahead. 19 MR. HEINEMAN: Your Honor, my co-counsel has 20 reminded me of what the question was. My objection. Your 21 Honor, was that Mr. Carr interrupted the answer. The question 22 was what do you mean by it being in a position to absorb. 23 The doctor was in the middle of answering that question when 24 he was interrupted by Mr. Carr and the Court directed him to .71 . 1 answer the question and 1 object to the Court's direction I 2 object to Mr* Carr's interrupting him because he was in the 3 process of defining what he means by being in a position to 4 absorb. 5 MR. CARR: He was defining what it means to absorb 6 something and which it goes into the lungs. My question was 7 to him what he meant by a person being in a position to 8 absorb. He was not answering that question. 9 THE COURT: The problem was he had answered it and 10 he was going past it. His answer as far as the level or was 11 a person in a position. He was then going into repetition of 12 how things have to be absorbed inside of the respiratory 13 system and I agree. I don't think that second section of his 14 answer was responsive and that is why I raised when I said to 15 him irt the manner so that he could answer direct to the 16 question. The first part of what he said I think was 17 responsive and that wasn't the point that was interrupted. 18 The second part about absorption in the system, that was not 19 responsive, and by that second part, I asked him to let him 20 redirect him back to the question and I think he had answered 21 the first part I think was responsive. That was not the part 22 that was interrupted. 23 MR. HEINEMAN: Your Honor, I think this scientist , V- 24 is the one who should be permitted to define his terms and he 72 1 may believe in his training that part o being in a position 2 to absorb relates to the internal defense mechanisms and that 3 is what he was in the process of defining* 4 THE COURT: I don't think that that is what he was 5 doing. I think that he ~ when he is asked a question, he 6 has to be responsive to it* Now, he knows the technical 7 matters that make the part responsive* it is my 8 responsibility to determine whether his presentation of those 9 matters are* in fact, responsive to the question that was 10 asked. That is my first job in the case, and through the 11 exercise of my discretion in listening to that question and 12 listening to the answer, that second part was not responsive 13 and it was properly interrupted* Objection is overruled. 14 (The following proceedings were had in the hearing 15 and presence of the jury). 16 Q. Doctor, my question to you is, what is meant by a 17 person who is in a position to absorb it? Not how it is 18 absorbed but what you meant when you said the person has got 19 to be in the position to absorb it? 20 A. I think, Mr. Carr, I am in the best position to 21 know what I meant by what I said there, sir. 22 MR. CARR: Your Honor, may I move the Court to 23 direct the witness to answer my question? 24 A, I will answer your question. 73 1 THE COURT: Doctor, that what you said was not 2 responsive to the question* 1 am ordering you to answer the 3 question as it was asked of you. Now, please answer it. 4 A. What I meant by that -- is that what you are asking 5 me? 6 Q. No, that isn't what I am asking you, Doctor. 7 A. Well -- 8 MR. CARR: Would you read the question to him? 9 COURT REPORTER: "Doctor, my question to you is, 10 what is meant by a person who is in a position to absorb it? 11 Not how it is absorbed but what you meant when you said the 12 person has got to be in the position to absorb it?" 13 A. What I meant is does this material get to the 14 respiratory tract, to the area of the respiratory tract from 15 which it is absorbed. That is what I meant, sir. 16 Q. And if a person is in a contaminated area, he can 17 get that into his respiratory tract by breathing it, can he 18 not, sir? 19 A. He might. 2 Q. Yes. Thank you, Doctor. And in addition, Doctor, 21 if he is working in it, he might absorb some of the 22 contaminant, might he not, sir? 23 A. Not necessarily, sir. 24 Q. Doctor, doesn't it depend upon whether or not he 74 1 would have worn protective clothing# head gear# respirator# 2 things of that sort? 3 A. No* sir. 4 Q. In the federal court weren't you asked right after 5 the question that you responded yes to on the one that I read 6 you several times# weren't you asked this further question: 7 "For example, a person would be an exposed person if he dug 8 into a sewer where 2,4,5-T was disposed of* is that right# 9 and worked in the sewer?" And your answer was# "Well# if 10 there was any 2#4,5-T or its toxic contaminants found in that 11 area and he was working there for days# he might have 12 absorbed some, it also depends upon what kind of garb he was 13 wearing. He could have worn protective clothing and head 14 gear with a respirator and could have been completely 15 protected." Was that your answer at that time? 16 A. That indeed was and I stick by it# yes. 17 Q. And, Doctor# then the question was also asked you# 18 "Doctor# so it really depends upon not really that he was 19 there but under what circumstances he was exposed" -- or# I 20 am sorry# that is your further answer. "So it really depends 21 upon -- 22 A. Why don't you read that# sir. Please read it. 23 THE COURT: Doctor, there was no question asked of 24 you. That response was improper. Mr. Carr# you may proceed. 75 1 Q. Yes, Your Honor. So you went on to say, "So it 2 really depends upon not really that he was there but under 3 what circumstances he was exposed,* and then the lawyer asked 4 you this question. "Well, Doctor, I wasn't really 5 addressing the issue of whether the person absorbed any 6 dioxin or not. I am simply saying that a person in that 7 situation was in a position to absorb 2,4,5-T or one of its 8 contaminants. Now, granted he could have been encased in 9 plastic and probably wouldn't have gotten a bit of it. On 10 the other hand, he could have been working with no shirt and 11 no respirator and breathing dust and working with wet 12 materials and he could have easily have absorbed material, 13 isn't that true?" And your answer was, "If there was 2,4,5-T 14 there." Wasn't your answer to that question that? 15 A. That is correct. Those were my answers. 16 Q. And then it went on to ask you the question, "And 17 the same would be true if there was dioxin on the surface. 18 Let's say after that cloud blew like in Seveso, it spread 19 dioxin quite a ways along a path did it not, where the cloud 20 passed over?" And your answer was "Yes." And then the 21 question: "And there was dioxin in the soil and people who 22 were in that area would, for purposes of your study, be 23 exposed, meaning they had an opportunity or they were at riskv 24 of absorption, isn't that right?" And your answer was "Yes." 76 1 Do you recall that# sir? 2 A. I do indeed* 3 Q. And these people would be at risk of absorption, 4 wouldn't they# sir? 5 A. By the skin, sir, yes* 6 Q* Doctor, they would also be at risk of absorption by 7 breathing the dust, wouldn't they? 8 A* From the soil, sir, no, sir. 9 Q. By breathing the dust? 10 A. In the cloud, yes, sir. 11 Q. And, Doctor, that would be a risk of absorption of 12 breathing the cloud of dust, correct? 13 A. The cloud of dust in that situation, yes, sir. 14 Q* And it would be also, sir, if it was in the soil, 15 wouldn't it, sir? 16 A. Not breathing. Contact, sir. 17 Q. Doctor -- 18 A. He didn't ask me whether it was breathing, sir. 19 Q. Doctor, you will see in a moment that he did but my 20 question is, sir, if you are working in the soil, if it is in 21 the soil and the dust comes up from the soil, you can ingest, 22 you can get it in you by breathing that dust, can you not, 23 sir? 24 A* No likelihood, sir. Unlikely. Very unlikely. 77 1 Q. Did you not answer these questions at that time on 2 the next page. "And so if you were doing your study on the 3 Seveso people under the same criteria, the persons who were 4 in the path of the cloud or who were in the area where the 5 dioxin was in the soil or in the soil would be classified as 6 exposed for purposes of the study," and we have read this 7 answer already, "Or potentially exposed," and then the next 8 question: "Yes. Potential exposure. Now, some of them may 9 not have absorbed any of it. On the other hand, others 10 might. And that would be one of the things you would be 11 testing in your study, I would assume? Answer: Well, we 12 were testing outcome. Question: Yes, doctor. Let's not get 13 into that. So, in any event, in that situation, a person 14 would be exposed given this definition likewise at the Nitro 15 Plant if -- and I am not suggesting to you that it is the 16 case but I am saying if there was, if you tested the soil and 17 you found dioxin in the soil where people worked or walked, 18 you would have a potential for absorption either by breathing 19 the dust or swallowing it, isn't that true?" And your answer 20 at that time was, "Yes, but it would depend upon how much 21 dioxin." Wasn't that your answer to that question? 22 A. The potential of absorption, sir, yes. 23 Q. Either by breathing the dust, by walking on the 24 contaminated soil, isn't that correct, sir? 78 1 A. Potential of absorption, yes* 2 Q. So, that is potential for absorption by working 3 with or walking on the soil? 4 A. It doesn't say it was absorbed. It just says 5 potential, sir. 6 Q. Doctor, potential means that it can happen, does it 7 not, sir? It has the possibility of happening, it has the 8 power of happening. Isn't that what we established potential 9 means? 10 A. Depending upon the circumstances. 11 Q. Isn't that what we established what potential 12 means? 13 A. Yes, sir. 14 Q. Now, Doctor, you also are aware of the fact that 15 there Can be low exposure or chronic exposure in addition to 16 acute exposure and that chloracne is not a reliable indicator 17 of low or chronic exposure, isn't that correct, sir? 18 A. No, sir, it is not correct, sir. 19 Q* Are you saying, Doctor, that you cannot have 20 chronic or low exposure without having chloracne? 21 A. No, I am not saying that. 22 Q. Then, Doctor, you can have low exposure to dioxin 2(3 or chronic exposure to dioxin without chloracne, can you not, 24 sir? 79 1 A. That is possible* 2 Q* Sir? 3 A. That is possible. You said exposure# not 4 absorption# sir. Remember# you said exposure not absorption. 5 Q. That is exactly right. 6 THE COURT} Doctor# that was not responsive to the 7 question. Please restrain yourself to the questions that 8 have been asked you. Mr. Carr# is this a good point to break 9 for lunch? 10 MR. CARR: Yes. 11 THE COURT; We will resume at one o'clock. The 12 admonishments that I gave you earlier will apply during this 13 break also. Court is in recess for lunch. 14 COURT RECESSED: 15 (The following proceedings were had in the hearing 16 and presence of the jury) 17 RAYMOND SUSKIND 18 having resumed the witness stand# being previously sworn# 19 testified further as follows: 20 CROSS EXAMINATION 21 By 22 MR. REX CARR. 23 Q. Doctor Suskind# I would like to have you define for 24 us what is or tell ue what is a clinical effect or symptom? 80 1 A. My definition of a clinical effect is a set of 2 clinical findings which may be elicited by a physical 3 examination or other kind of diagnostic studies. Other kind 4 of diagnostic studies. Those are clinical effects, sir, 5 Q. Well, can an effect also be a symptom? 6 A. I think one has to consider that complaints or 7 clinical symptoms have to be considered but if there is no 8 physical examination finding or laboratory or other type of 9 diagnostic findings which -- 10 Q. I don't want to get into laboratory yet, Doctor. 11 That is the next question. Confine your answer, please, to 12 the clinical aspect* 13 A. Well, I think when you talk about clinical aspect, 14 you are talking about the whole ball of wax. You are talking 15 about all of the aspects of the clinical examination which 16 includes pulmonary function, which includes X ray, which 17 includes ECG, which includes all of those things including 18 laboratory. That is what I would regard as clinical 19 examination. 20 Q. Would it also include then the symptoms? 21 A. The symptoms only act as a clue to what might be 22 found, but if there is no physical basis for the complaints 23 or the symptom, the subjective symptom, then one has to 24 consider whether or not they are indeed real or what other 81 1 basis those complaints have which are not elicited by the 2 clinical examination. 3 Q. All right. Doctor# if the symptom is real# if I 4 understand you correctly# if it is real# that is if you the 5 clinician believe that it is real# then it is a clinical 6 effect? 7 A. No# sir. 8 Q. NO? 9 A. No. The reality of it# sir# is that the patient 10 believes that it is there. That is the reality of it. 11 Q. Well# that is another point# Doctor. I am trying 12 to -- for instance# is a headache a clinical -- is a headache 13 a clinical effect# for instance# of something? 14 A. I think it would be if# for example# there were a 15 series of patients like in this case that had complaints of 16 headaches. 17 Q. Then that would be considered a clinical effect 18 then? 19 A. Well, it is a symptom which one has to consider 20 because of the numbers that have it. 21 Q. Well, my question is -- 22 A. The numbers that have it. 23 Q. The headache then can be a clinical effect even ' 24 though you# the clinician# cannot see it? s' 82 1 A. That is correct, sir. 2 Q. And the same thing I take it would be true of this 3 malaise. That would also be a clinical effect even though 4 you can't see it, is that correct, sir? 5 A. Well, it is a subjective symptom and if you have a 6 lot of people who are in the same situation, whether it is 7 from a cold or from a chemical exposure complaining of 8 headache, you associate-- 9 Q. Malaise this time. 10 A. Malaise. You associate malaise with that exposure. 11 Q. All right. But what I am saying is, Doctor, would 12 the malaise under that circumstance be considered by you as a 13 clinical effect, sir? 14 A. It would be considered a clinical symptom, sir. 15 Q. I know. You said that, sir, and there is no 16 question that the malaise is a symptom. But my question is, 17 would you, like the headache, will you consider that a 18 clinical effect? 19 A. 20 yes. If there were enough people complaining about it, 21 Q. All right. And you would only need enough people 22 complaining about it. That is just kind of a persuasive 23 element. That persuades you that the malaise or the headache 24 is in fact occurring as a result of something, isn't that 83 1 correct, sir? 2 A. Or associated with it, yes, sir. 3 Q. So, in point of fact, if only one person had a 4 headache resulting from something or malaise resulting from 5 something, that headache or that malaise Would be a clinical 6 effect of that something, even if just one person had it, 7 correct, sir? 8 A. If one person had it and I don't think one would 9 consider it seriously except if this person were unique in 10 that he or she had the headache and nobody else did* 11 Q. Well, Doctor, let's take it away from an 12 epidemiological kind of thing. If a patient came in to you 13 and said he or she had a headache, if she in fact had the 14 headache, even though she was the only one in the family that 15 -- let's say she watched TV too much or something of that 16 sort and she came and told you that she had a headache -- 17 A. All right. 18 Q. You would consider that under that circumstance a 19 clinical effect, would you not, sir? 20 A. Yes. It would be a clinical effect as determined 21 by the complaint, right. 22 Q. And the same thing would be true, then, of any 23 singular symptom. You would consider that symptom a clinical v 24 effect if you as the clinician believed that it resulted from 84 1 whatever the person came in and said they were exposed to or 2 were doing if* in fact, you believed that it resulted from 3 that. It would then be an effect, would it not, sir? 4 A. No, sir. 5 Q. No, it would not? 6 A. No. 7 Q. All right. Hasn't anything to do with your belief, 8 does it, Doctor? That is the problem. It has to do with 9 whether or not something caused that result, actually, that 10 is what -- 11 A. No. I think it would be several factors. I think 12 one has to consider the fact of the circumstances under which 13 this person is being examined and are they complaining even 14 though they may not have these symptoms. They may not have 15 these symptoms. 16 Q. The complaints without the symptom, then, is 17 clearly not a clinical effect, is it, sir? 18 A. Well -- 19 Q. And if you don't have a headache and you are 20 complaining of a headache, then the headache is not the 21 clinical effect. The complaints may be a clinical effect of 22 some psychological disturbance or some psychoneurosis or 23 something of that thing. That could be -- the complaints 24 could be the clinical effect of that but I am talking about, 85 1 now, not that aspect. I am talking about the man that comes 2 in and tells you that he has a headache. He has been 3 watching a lot of TV and he has a headache. That headache, 4 if I understood your answer originally or correctly, would be 5 a clinical effect, would it not, sir? 6 A. Which one would associate with too much TV, 7 perhaps* 8 Q. Right, But it would be a clinical effect 9 associated with that exposure to the TV, would it not, sir? 10 A. If the patient were telling the truth, sir, yes. 11 Q. And just like fatigue, if a person told you that he 12 was tired and worn out and also told you that he had done a 13 lot of work and really extended himself, the fatigue that he 14 has would be a clinical effect of that work and going beyond 15 his ordinary capacity, would it not, sir? 16 A. Well, that would really depend upon whether or not 17 he was again telling the truth. 18 Q. Well, I am taking that as a given, Doctor, If he 19 comes in and tells you he is worn out and fatigued and 20 telling you the truth and that he had chopped some trees down 21 or did work that he is not physically -- his body isn't 22 physically able to do and he came in and told you he is 23 fatigued and worn out, fatigue in that circumstance would be 24 a clinical effect of that over exertion or over activity, 86 1 would it not, sir? 2 A. It could be, yes* 3 Q. All right* And the clinical effect, the acute 4 clinical, these then really, when you are talking about on 5 this exhibit, Defendant's Exhibit 1692A, when you are talking 6 about these human health effects, the clinical features, the 7 acute, the eye, the respiratory, skin, headache and malaise, 8 you are talking about in this circumstance the clinical 9 effects of this acute exposure, are you not, sir? 10 A. Yes, sir. 11 Q. Yes. All right* And in the next exhibit number 12 that you referred to here, 1692B, when you have described 13 here the acne, neuromuscular symptoms, pain in skeletal 14 muscles, chest, extremities, peripheral neuritis, fatigue, 15 enlarged tender liver, porphyria cutanea tarda, 16 hyperpigmentation, hirsutism of face, irritability and 17 nervousness, you are talking about the clinical effects of 18 this particular TCDD exposure, subacute or subchronic, are 19 you not, sir? 20 A. Yes. As it is reported in the literature. 21 Q. Now, so clearly, the clinical effects can include 22 things like pain in the skeletal muscles? 23 A. Yes, If everybody complains about it who are 24 exposed to a particular virus or a particular chemical agent, 87 1 one would say that there is evidence to show that pains or 2 neuromuscular symptoms are associated with that exposure. 3 Q. Okay. But once you have established the clinical 4 effects of a particular toxin* for instance* and this is as 5 on this board 1692B* the clinical effects of this exposure 6 are established under the heading clinical features. Those 7 clinical effects* once established* then when somebody else 8 comes in* another patient who was just by himself on the 9 occasion of the exposure* for instance* at home and nobody is 10 around or anybody* not a number coming in* when he comes in 11 and tells you I have these particular problems* these 12 problems that he has* assuming that he is telling the truth* 13 even though they happen in just one person that time* you can 1^ consider that to be in him as well a clinical effect of this 15 particular exposure* can you not, sir? 16 A. No. I think in that point the doctor* physician* 17 would include the possibility that the clinical symptoms were 18 associated with that* were associated with the exposure of 19 that larger group that he knew about. 20 0. Well* but if they existed in the single person* 21 they are just as much a clinical effect in that single person 22 as if he happened to be in the crowd of a thousand people 23 that got exposed at that same time and the other 999 also had 24 the same problems* isn't that correct* sir? 88 1 A. They would be clinical symptoms but one wouldn't 2 say yes# that is definitely associated with that* 3 Q. I am not asking you to definitely say that yes, 4 definitely and conclusively that is a clinical effect of that 5 exposure. What I am asking you, Doctor, isn't it true that 6 if these problems occur in the case of one person exposed to 7 the same substance but say on the following day, for 8 instance, or a year later, or even five years later, that 9 person exposed to this substance comes in and has these same 10 clinical features, just because they are occurring in one 11 person doesn't mean it is not a clinical effect in that 12 person of the particular exposure, isn't that correct, sir? 13 A. That is quite true, sir. You would consider the 14 possibilities that they are similar to the others. 15 Q. I know you as a clinician would consider the 16 possibility. I am not asking you that point. I am asking 17 you, the effect in that person, these problems, occurring in 18 him are clinical effects in that person of this exposure, are 19 they not, sir? 20 A. They are clinical effects that could be considered 21 associated with that exposure. 22 Q. All right. Now, on the other side of the ledger, 23 laboratory findings, sir. What is a laboratory effect, if 24 you'will? 89 1 A. Well, I am not sure I understand what you mean by a 2 laboratory effect. Laboratory studies are carried out in 3 order to determine if there are any abnormal effects, 4 abnormal effects of a given virus or a given exposure on 5 parameters which can only be determined by laboratory 6 studies. For example, blood count or hemoglobin in the blood 7 or white count or differential. Whether they are more 8 polymorphonuclear leukocytes than there should be or there 9 are more lymphocytes that is within normal range* Then you 10 go into the blood chemistries which are designated in that 11 exhibit which may relate to blood sodium or blood calcium or, 12 in this instance, the enzymes which indicate liver function 13 or the lipids in the blood which indicate normal or abnormal 14 levis related to lipid metabolism. 15 Q. All right. Now, Doctor, then a laboratory effect 16 of TCDD absorption, for instance -- well, an effect found in 17 the laboratory would be considered a laboratory effect 18 associated with or caused by this particular toxin or 19 whatever problem you are talking about, correct, sir? 20 A. Associated with it, yes. 21 Q. In this instance, you found associated with TCDD 22 absorption was these signs that are under the heading 23 laboratory findings -- these effects, rather, under .' 24 laboratory findings. Myelin degeneration. We also S* 90 1 established it was muscle destruction as well? 2 A* Not muscle destruction* 3 Q. Fibers. It wasn't muscle. You are exactly right. 4 The neuro fibers in the -- the fibers of the nerve 5 destruction# right? and the all these other elevatedSGOT# 6 GGTP# prothrombin times# triglycerides# lipids and 7 uroporphyrinuria? 8 A. I didn't find those. I found some of them in my 9 patients but this is a list from the literature. 10 Q. Doctor# what I am asking you# the thing that I am 11 asking you# as opposed to clinical effects# the findings in 12 the laboratory as we have given them hypothetically are in 13 fact laboratory effects# aren't they# sir? That which you 14 can see in the laboratory# wherein the laboratory tests as 15 you have indicated comes out abnormal. That is a laboratory 16 effect?' 17 A. Yes. But these laboratory effects, sir -- I think 18 one has to consider are they really associated with this 19 exposure or are they not. 20 Q. I am not even trying to get into that point. 21 A. Okay. 22 Q. All I am trying to do is get a definition of 23 laboratory effect. We have established what clinical effect 24 is of exposure or toxin. It doesn't have to be this 91 -' 1 particular case# what a clinical effect is, and now I would 2 like to establish what a laboratory effect is* It is that 3 which you find in the laboratory that is considered an 4 abnormal finding on a given laboratory test, whatever that 5 test might be, as you have suggested, the lipids, the blood 6 count and things of that sort, correct, sir? 7 A. Correct. 8 Q. That would be considered a laboratory effect? 9 A* That would be considered a laboratory effect* 10 Q. All right. Now, Doctor, with respect to this 11 problem when we get into the area -- one other thing. 12 Systemic manifestation. What is your definition of a 13 systemic manifestation of a toxic exposure? What do you mean 14 if you were to say or use the word systemic manifestation? 15 A. In this instance we use systemic manifestation as 16 distinguished from cutaneous or skin. So if other organ 17 systems are affected like the liver or like the lung or 18 like -- 19 Q. The kidney or the porphyrins or the blood or 20 anything else? 21 A. That would be systemic. 22 Q. All right. So, if it is something that is other 23 than the skin -- 24 A. In this instance. 92 1 Q. It would be a systemic manifestation? 2 A. Yes, sir 3 Q. And manifestation means sign of the system being 4 affected, correct, sir? 5 A. Well, there would have to be findings relative to 6 that, yes. Findings relative to the systemic. 7 Q. Well, there would have to be effects of that in 8 order for it to be manifestation, correct, sir? It would 9 have to be a clinical effect like that we have previously 10 established. The neuromuscular symptoms, pain in the 11 skeletal muscles, the enlarged tender liver. These other 12 things, well, practically everything on your exhibit, rather, 13 everything on your Exhibit 1692B would be considered a 14 systemic manifestation other than the acne then, is that 15 correct, sir? 16 A. No, sir. 17 Q. Okay. Didn't you say that you meant to include 18 those effects other than acne or effect upon the skin? 19 A. But if you will look down below you will see there 20 are others there. 21 Q. Other than? 22 A. Hyperpigmentation and so on. 23 Q. Other than acne and hyperpigmentation, all of the 24 effects on this board 1692B are considered systemic 93 1 manifestations? 2 A. No. There is another one. Hirsutism would be 3 considered. 4 Q. That is part of the acne problem or associated ~5 A. Not part of the acne problem. That is part of the 6 skin problem. 7 Q. All right. Then everything on this board other 8 than those associated with the skin would be considered 9 systemic manifestations is that right sir? 10 A. I believe so yes. 11 Q. Now if you just had one of these manifestations 12 say the enlarged tender liver would that by itself be a 13 systemic manifestation? 14 A. No sir. 15 Q. It would not? l6 A. No sir. 17 Q. What do you have to have for it to be considered a 18 systemic manifestation? 19 A. Well in the instance of that particular exhibit 20 sir? 21 Q. Yes. 22 A. And I believe you are referring to that I have 23 never seen and I think I have enough experience we have 24 never seen systemic manifestations without skin 94 1 manifestations. 2 Q. Well, Doctor, I am not really asking you that. 3 A. I thought you were, sir. 4 Q. What I am asking you is in the broad sense of the 5 word systemic manifestation, what is a systemic manifestation 6 of any kind? It doesn't have to be dioxin. 7 A. Manifestations other than the skin. 8 Q. Sir? 9 A. Manifestations which occur or found involving other 10 organ systems than the skin. 11 Q. All right. Now, if it involves just one other 12 organ other than the skin, is it still considered a systemic 13 manifestation? 14 A. It depends upon the substance, sir. 15 Q. Well, all right. Depending upon the substance. 16 A. In the case of TCDD, it is not. 17 Q. Well, I am not talking about that at this point in 18 time, Doctor. Is a systemic manifestation a sign that the 19 system other than the skin has been affected? 20 A. It could be, yes. 21 Q. Is that a definition of the word systemic 22 manifestation? 23 A. Yes, that is correct, 24 Q. Now, Doctor, when we talked about absorption this 95 1 morning as we concluded today, you distinguished between 2 exposure and absorption* Do you remember that, sir? 3 A. I did, yes. 4 Q. Do you agree, sir, that the marker of absorption in 5 the case of TCDD or some other toxic substance, for that 6 matter, not just TCDD but the marker of absorption of a toxic 7 substance is an adverse effect? 8 A. I would agree that an adverse effect might be 9 considered, yes* Might be considered if one recognizes that 10 it is usually associated with a chemical compound like carbon 11 tetrachloride, for example. 12 Q. Doctor. Withoutgetting into specifics. 13 A. Well, I think I have to, 14 Q. I think you differentiated this morning between 15 exposure that suggested that you can have exposure to a 16 substance without ever absorbing it, correct, sir? 17 A. Yes, you could. 18 Q. And you made that point this morning. Now, the 19 marker of absorption then, if you can't tell just because one 20 is exposed to it that that doesn't mean that they have 21 absorbed it, then the only way you can tell whether they have 22 absorbed it is to determine whether or not it has had an 23 effect upon the system, upon the organism in question, 24 correct, sir? S' 96 1 A. If indeed that effect is known to be associated 2 with that particular exposure* 3 Q. Well, Doctor, even that isn't completely true. 4 Science doesn't know everything. 5 A, Right. 6 Q. It doesn't know a fraction of everything. 7 A. Correct. 8 Q. And you can have an effect from a toxin or a 9 substance, it be an adverse effect or even a beneficial 10 effect from that exposure, and just because science doesn't 11 know everything, it could still be a marker or an effect, 12 rather, of that absorption, could it not, sir? 13 A. I couldn't disagree with that, sir. 14 Q. Sir? 15 A. I couldn't disagree with that. 16 Q. That is a fact, as a matter of fact. There are all 17 kinds of things that we don't know. 18 A. That are still unknown. 19 Q. AIDS. We don't know what, if anything, are causing 20 -- what absorption the system is getting to cause AIDS, for 21 instance. All we know is is that something out there is 22 happening, that somebody is coming in contact with some 23 virus, germ, bug or absorbing something in his system that isV 24 causing AIDS, isn't that right, sir? That is about all we 97 1 know? 2 A. Generally that is true, sir* 3 I Q. So, therefore, you can have an effect upon the body 4 without you as a scientist knowing that it was caused by a 5 particular substance, isn't that right, sir? 6 A* If the substance has never been studied thoroughly, 7 yes. 8 Q. Well, Doctor, even if it has been studied 9 thoroughly, we are learning everyday more and more and more 10 about things that have been studied thoroughly, have we not? 11 Are we not, sir? 12 A. Yes. 13 Q. Newton's theory of gravitity (sic). I don't know 14 what that means. A freudian slip or something. Like 15 gravity, Newton's law of gravity has been studied for 16 centuries now and they are still learning about Newton's 17 other things about the law of gravity, aren't they, sir? 18 A. Especially about how apples fall. 19 Q. And the same thing is true with regard to the human 20 health system. They are studying everything and learning 21 more and more and there is probably no end to it as far as 22 learning, isn't that correct, Doctor? 23 A. That I think in a general way is true but what I 24 think is more significant is that in the past, we have 98 X learned a great deal about the fact that certain phenomenon 2 occur and currently for those things we know about these 3 phenomena, we are studying why they occur. Why they occur. 4 Q. Doctor, getting it closer to this case, there is 5 all kinds of things that you scientists do not know about 6 dioxin and how it affects the human system, isn't that 7 correct, sir? "\ 8 A. No. I think we know a good deal about -- 9 Q. Doctor, I will agree with you that you know a good 10 deal about it but my question is is that there is a great 11 deal yet to learn, is there not, sir? 12 A. Only as to why things occur. Not that they do 13 occur but why things occur. For example, why there is an 14 elevated -- I am sorry, why there is elevated SGOT early in 15 the course of events. We don't know why. 16 Q. More than that, the world doesn't even know what 17 the critical level of exposure to dioxin, for instance, is 18 that might cause injury to a human. You don't know that 19 either, do you, sir? 20 A. That is true, sir. 21 Q. If the world doesn't know the critical level for 22 humans, for human injury, what that is of dioxin, if you 23 don't know what that level is that will cause human injury, s' 24 then there is a lot you don't know about dioxin, isn't there, 99 1 sir? 2 A. There is a lot we don't know about the human* 3 Q. That is what we are talking about* 4 A. The human effects as related to dose. 5 Q* Yes. 6 A. As related to dose* 7 Q. You don't know* the world doesn't know what is the 8 dose level for humanbeings that causes human injury in the 9 case of dioxin* isn't that correct* sir? 10 A. I think generally that is true* sir. 11 Q. Yes, Indeed it is. And* Doctor* in the area of 12 absorption and back to the point of absorption* the marker of 13 absorption is an adverse effect whether it is a clinical 14 effect or a laboratory effect* isn't that correct* sir? 15 A. Not in the case of TCDD* sir* 16 Q. Not in the case of TCDD? 17 A. No* sir. 18 Q. Now* Doctor* directing your attention again to the 19 federal court case and your testimony in that case* sir* on 20 the same day that these other questions have been read* 21 counsel* on March 13* 1985, wasn't this question asked you at 22 page 28680. "Question: How would you ever know that someone 23 was exposed to dioxin if there was no effect?" And your v 24 answer was, "You would know by simply knowing that they had 100 1 worked in an area* Exposure is different from absorption* 2 Questions That is what I am trying to get at, Doctor. 3 Answer: Absolutely* Question: I don't understand the 4 difference. Answer: And you are quite right* The marker of 5 absorption is an adverse effect. Whether it is a clinical 6 effect or a laboratory effect." 7 Doctor, isn't that what you said at that time and 8 you went on to say, "The marker of absorption is an adverse 9 effect but the fact that people are exposed does not 10 necessarily mean they absorbed enough to develop an adverse 11 effect and, as a matter of fact, it is quite well known in 12 toxicology that you can give an animal," if I am going too 13 fast, yell at me, "an experimental animal a subclinical dose 14 of a toxic agent and they wouldn't develop any adverse 15 effects" Wasn't that your answer at that time, sir? 16 A. It was. 17 Q. And didn't you say at that time, sir, "That the 18 marker of absorption in the case of TCDD and dioxin is an 19 adverse effect whether it is a clinical effect or a 20 laboratory effect." Didn't you say that, sir? 21 A. I was talking about -- 22 Q. Excuse me, sir. My question is, did you not say 23 that, sir? 24 A. With respect to dioxin? 101 1 Q. Yes, sir. 2 A. I don't believe I limited it to dioxin. 3 Q. Doctor, the question was being asked of you about 4 dioxin. I just read that question to you preceding that, 5 sir. 6 A. Would you please read the question again, sir? 7 Q. "Question: How would you ever know that someone 8 was exposed to dioxin if there was no effect? Answer: You 9 would know by simply knowing that they had worked in an 10 area. Exposure is different from absorption. Question: 11 That is what X am trying to get at, Doctor. Answer: 12 Absolutely. Question: I don't understand the difference. 13 Answer: And you are quite right. The marker of absorption 14 is an adverse effect whether it is a clinical effect or a 15 laboratory effect." Didn't you say that, sir? 16 A. When I answered that question, sir -- 17 Q. My question is -- 18 A. Yes, I said that. \ ! 19 Q. And, Doctor, the marker in this case that we are 20 talking about here, your exhibit here, the clinical effects 21 we have gone through, have we not, sir, and the laboratory 22 effects we have gone through, have we not, sir? 23 A. We have. 24 Q. So, the marker of absorption of dioxin in this case 102 1 is these clinical effects and these laboratory effects that 2 we have gone through that is shown on 1692B? 3 A. No, sir. 4 Q. Doctor, did we not -- 5 A. When we talk about marker, we are talking about the 6 signal. 7 Q. Excuse me, Doctor. Didn't we establish that the 8 marker of absorption is an adverse effect? 9 A. The marker of absorption in the case of many 10 different compounds, yes, sir. 11 Q. And -- 12 A. i was asked two questions there, sir. 13 Q. No, Doctor. 14 A. The first one was about TCDD and my answer was -- 15 Q. Did you understand that they were talking about 16 anything other than dioxin, sir? 17 A. My answer was referring to any substance absorbed 18 through whatever, however it is absorbed. The marker of 19 absorption could be any substance, could be either laboratory 20 or clinical. In the case of TCDD, they didn't limit it to 21 TCDD. 22 Q. Well, Doctor. You didn't exclude TCDD, did you, 23 sir? 24 A. Oh -- 103 1 Q. Did you think you weren't talking about TCDD? 2 A. If they asked me specifically what about TCDD, I , 3 wouldn't have answered it that way, sir* 4 Q* My question is, Doctor, did you think you were not 5 talking about dioxin in that case? 6 A. I was and I was the answerer. 7 Q. Doctor, my question is, did you think you were not 8 talking about dioxin? 9 A. I was talking about chemicals as a whole, sir* 10 MR. CARR: Your Honor, would you please direct the 11 witness to answer my question? 12 THE COURT: Doctor, please answer the question that 13 was asked of you, not something else* 14 A* In that answer I was not talking about dioxin 15 specifically, sir, no. 16 Q. Doctor, you do recognize that this was a question 17 in a series of questions in which you were talking about 18 absorption and exposure of 2,4,5-T and its contaminants? 19 A* Yes, sir* 20 Q. Now, Doctor, would you like for me to read to you 21 more than just that which I read so that you could be assured 22 that you were talking about dioxin, among other things? 23 Would you like for me to read more of your testimony. Doctor? 24 A. Whatever you wish, sir. 104 1 Q. No, Doctor. I am asking you if you are unsure that 2 you weren't talking about dioxin, I would be more than happy 3 to read to you more of this, sir. Didn't you say absorption 4 can only be in this instance determined by the adverse 5 effect? Didn't you say that. Talking directly about dioxin, 6 sir? 7 A. Uh-huh, talking about -- 8 Q. Directly about dioxin, sir? 9 A. The question was raised originally about TCDD and I 10 went from the specific to the general about substances, how 11 you can determine absorption, and my answer was the marker of 12 absorption, the initial incident which the initial finding in 13 absorption can be either a laboratory or a systemic, or an \ 14 organ system effect; however, with respect to TCDD^and I 15 wasn't asked specifically at that point about it. I can say 16 that yes, this is a marker for TCDD* That is a marker -- 17 Q. Doctor -- 18 A. And not any marker, one marker. 19 Q. My question to you, sir, didn't you say here that 20 the marker of absorption is laboratory and/or clinical i 21 effects? 22 A. Yes. Of substances in general, yes, sir. 23 Q. Including dioxin? 24 A. No, sir. Not including dioxin. 105 1 Q. Did you tell the jury there or the Court there that 2 you were not talking about dioxin? Did you tell them that, 3 sir? 4 A. I didn't have to, sir. 5 Q. Excuse me. Did you tell them that, sir? 6 A. No. But I didn't ask them. 7 MR. CARR: Your Honor, would you direct the jury to 8 disregard the latter statement of the witness? 9 THE COURT: The last part o the remark was not 10 responsive to the question. You are ordered to disregard 11 it. Doctor, please keep your responses confined to the 12 question that is asked of you* I have asked you to do that 13 before. 14 Q. Doctor, you were asked these questions in that 15 series and just to make sure that we are talking -- that you 16 know we are talking about the same thing, Doctor, I will be 17 more than happy to read some additional questions preceding 18 it and some questions coming after it so that you can make 19 sure that you were talking about dioxin, sir. Page 28678. 20 "Question: Now, when you use the word exposed here, 21 are you talking about absorption or opportunities for 22 absorption? Answer: These were persons who by virtue of what 23 their work records showed, medical records showed, and I 24 gathered safety records as well because that is how, that is 106 1 how the Monsanto list was derived# who were known to be 2 exposed and who either had a history of chloracne through 3 their medical records and workmen's compensation records or 4 they did not. Questions Doctor# my question to you was when 5 you used the word exposure in this study# do you mean 6 absorption of dioxin or do you simply mean opportunity to be 7 or an opportunity to absorb dioxin?" Still talking about 8 dioxin# right# Doctor? 9 A. In that context# yes. 10 Q. And your answer was# "well# I think at this point I 11 would like to define what you are asking me to define. 12 Questions Well# that would be good because that is what I am 13 asking. Answers And that is# and exposure is simply an 14 opportunity to be exposed to a toxic agent. Let's say# it 15 doesn't mean that there was absorption but they had a 16 potential for exposure# and that type of situation is called 17 a hazard. So these people had an opportunity to be exposed 18 to a potential toxic hazard. Doesn't mean absorbed. 19 Questions So, when this first group, this first list-- " and 20 you interjected, "Exposed in this instance means that -- " and 21 counsel said# "Can I finish my question?" And then your 22 answer was# "They were known by their work records and their 23 medical records to have been exposed to the 2,4#5-T process 24 in some way. Questions Well# does that mean that those V- 107 X persons had absorbed dioxin or just that they had the risk of 2 absorbing dioxin? Answers They had the risk of being 3 exposed* You separate absorption from exposure* Absorption 4 can only be, in this instance# determined by the adverse \ 5 effect# o that -- 6 "Question: Well# then# I could be exposed to / 7 dioxin and not be hurt?" And your answer was# "Absolutely* 8 Question: The key to it is to absorb dioxin and have some 9 demonstrable biological effect by chloracne? Answer: That 10 is not the key. We were attempting to determine in this 11 group as well as how many people who were exposed and never 12 had any adverse reaction* Question; Well# how would you 13 know that# Doctor# if you say the only way you can tell that 14 you absorbed dioxin is by obesrving? Answer: I didn't say 15 absorbed. I said exposed." And the Court said# "Doctor# 16 please let counsel finish the question before you respond* 17 Go ahead." "Mr. Caldwell: And your answer was? Would you 18 repeat the question please. 19 "Question: How would you ever know that someone 20 was exposed to dioxin if there was no effect? Answer: You 21 would know by simply knowing that they had worked in an 22 area. Exposure is different from absorption. Question: 23 That is what I am trying to get at# Doctor. Answer: 24 Absolutely. Question: I don't understand the difference. 108 * 1 Answers And you are quite right. The marker of absorption 2 is an adverse effect. Whether it is a clinical effect or a 3 laboratory effect. The marker of absorption is an adverse 4 effect but the fact that people are exposed does not 5 necessarily mean they have absorbed enough to develop an 6 adverse effect, and as a matter of fact it is quite well 7 known in toxicology that you can give an animal, an 8 experimental animal a subclinical dose of a toxic agent and 9 they wouldn't develop any adverse effects. 10 "Question; That makes sense to me, Doctor. 11 Answer: Does it? Question: Yes. That makes sense. 12 Answer: That is fine. And what we are saying is is that there 13 was a group, there could be a group who were known to be 14 exposed who did not demonstrate historically any adverse 15 effects." 16 And, Doctor, that was your answer at that time 17 following the questions that I just gave to you, were they 18 not, sir? 19 A. That was indeed, yes, sir. 20 Q. And, Doctor, you went on to say, and the question 21 went on to read that "When you say this group was not 22 exposed, you mean the group that did not even have a chance 23 of absorbing dioxin? Answer: They didn't have a clearly 24 demonstrated chance vis-a-vis their history, their work 109 1 history. What does this vis-a-vis history mean, Doctor? 2 Well, in relation to -- All right. So that was an important 3 consideration for this kind of study because what you are 4 getting ready to do, you were going to examine exposed people 5 as you have defined it and persons who were not exposed as 6 you have defined it." 7 And then, Doctor, over on page 28698 referring to 8 the dioxin again, your answer was -- the question was, 9 "Something you had the risk of absorbing dioxin, right?" 10 Your answer was, "No. Exposed to 2,4,5-T and its toxic 11 contaminants and what we were looking ostensibly at was the 12 TCDD effect but to begin with, we were looking essentially at 13 whether or not they were exposed. I think again we have had 14 to separate the clinical effects from the exposure." 15 Was that your answer at that time, sir? And then 16 you went on to say -- counsel tried to say something, "Well, 17 Doctor, I was just trying -- " and you interrupted and said, 18 "Because there were indeed people who were exposed who didn't 19 have clinical effects. Question: I was just trying to get 20 some definition of exposure, Doctor, and as I understood what 21 you said earlier in this case in this study, exposure meant a 22 person being in a place where he might absorb 2,4,5-T or any 23 one of its contaminants." 24 Now, Doctor do you recall were or were not those 110 1 your answers to those questions? 2 A. Yes, they were sir. Yes. 3 Q. Now Doctor there can be in the case of low 4 chronic exposure clinical effects and laboratory effects can 5 there not sir of being exposed to dioxin? 6 A. Did you say clinical and laboratory effects? 7 Q. And/or sir. 8 A. No sir. 9 Q. Does that mean that you are saying there needs to 10 be both clinical effects and a laboratory effect? 11 A. No I am not sir. I am saying simply that we have 12 not seen laboratory effects without the clinical effects 13 sir. 14 Q. Well then what you are saying as far as your 15 experience is concerned when you see a clinical effect you 16 will also see a laboratory effect is that right sir? 17 A. You might sir. Yes you might. 18 Q. Well, do you or not? 19 A. No. 20 Q. You might or might not, is that what you are 21 saying? 22 A. Sure. You can have acne without any other 23 laboratory findings. Without laboratory findings. 24 Q. Doctor, my question doesn't refer just to acne. Ill 1 Acne is one clinical efect of exposure to dioxin* One of 2 the many* is it not* sir? 3 A* No, sir* 4 Q. Isn't acne -- aren't there many clinical effects 5 here, sir, on your board -- 6 A* Yes, sir* 7 Q. -- of exposure todioxin? 8 A. Yes, sir. 9 Q. And isn't acne one of those many? 10 A. No, sir* 11 Q. Doctor, is acne on this board or not? 12 A. It is the first clinical finding* 13 Q. Doctor, my question is, is it one of many? 14 A. It is one of many but it is the first, sir* 15 MR. CARR: Your Honor, I would like to have the jury 16 to be instructed to disregard the answer given. My question 17 is simply is acne one of the clinical effects* 18 THE COURT: The jury is so instructed* It is not 19 responsive. Doctor, please answer the question. 20 A. Okay, sir. 21 Q. Doctor, it is true, is it not, sir, that people at 22 Times Beach, for instance, may or may not have been exposed 23 chronically and the effects of that chronic exposure can be 24 somewhat difficult than an acute effect of a massive 112 1 exposure? 2 A. I don't know what the actual exposure at Times 3 Beach was and I don't believe that, if you are referring to 4 the State of Missouri report -- 5 Q. Doctor, what I am referring to are the people at 6 Times Beach, sir. 7 A. Well, I only know them through the report, sir, 8 through the clinical report which was conducted and 9 published* 10 Q. Doctor, at the meeting that you attended at this 11 panel discussion, Plaintiffs' Exhibit 1802, you participated 12 along with others in a panel discussion. We have already 13 referred to part of what you said at that panel discussion, 14 have we not, sir? 15 A. Mr. Carr, is that the Michigan State panel? 16 Q. It is the book that was written here, Dioxin and 17 t,,he.,,.fin.viEQnroeht? 18 A. Yeah. 19 Q. I gave you a portion of that marked Plaintiffs' 20 Exhibit 1802? 21 A. I have it here. It isn't the exhibit but I have a 22 copy of it here, sir. 23 Q. Doctor, that panel discussion -- 24 A. I am sorry. I don't have the panel discussion 113 1 here* Can I have it? I have the paper# not the panel. 2 Q. It should be among this group o exhibits here but 3 we can give you this one to save some time so you don't have 4 to dig for it. 5 A. Thank you. 6 Q. In that panel discussion# a Professor McConnell 7 participated# did he not# sir? 8 A. Yes. General McConnell* 9 Q. And there is no question about his expertise# is 10 there# sir? 11 A. Sorry? 12 Q. No question about his authority and expertise# is 13 there# sir? 14 A. Only with respect to animal research# sir. He is a 15 veterinarian and not a physician# sir. Not a doctor. 16 Q. Doctor# we have had a toxicologist in this case who 17 is a veterinarian that came forward as an expert on the 18 effects pf dioxin. 19 A. On animals# sir. Yes# sir# he really is. 20 Q. Doctor# he said a lot more than animals in this 21 case. 22 A. I am talking about Doctor McConnell. 23 Q. Doctor, I would like to refer you# sir# to this 24 panel discussion. Mr. McConnell in responding to various 114 1 things that was said at that discussion including yours. You 2 responded starting at page, the bottom of page 270, did he 3 not, sir? "I would like to respond to that in point of 4 fact." He was responding to what Doctor Smuckler said and 5 Doctor Smuckler was responding to something that you said, so 6 the dialogue took place like this. "Insofar as Professor 7 McConnell was concerned, I would like to respond to that and 8 take a little bit different tact. I would agree that it is 9 hard to compare a Nitro, West Virginia, or an acute exposure 10 in an animal to a Times Beach situation because the former 11 are single exposure," And by former he is referring to the 12 Nitro and not the Times Beach? 13 A , Yes 14 Q. "And people may or may not have been exposed in i 15 Times Beach but if they were exposed, they were exposed 16 chronically. Now, how do you compare that? We have shown in 17 animals that chronic low level exposures in several species 18 of animals appear to be more potent than a single equivalent 19 dose. In other words, it takes less of the TCDD spread out _ 20 over a period of time to produce a given effect than it does 21 in a single exposure. Just the opposite of what occurs with 22 many, many chemicals. So, I am not sure that following the 23 Nitro group in a negative sense will be able to predict 24 anything in terms of a chronic disease. If I did find -- :' 1 something in" -- 2 MR. HEINEMAN: Wait a minute. 3 Q. "Predict anything in terms of a chronic exposure. 4 If I did find something in a Nitro group, I certainly would 5 look for it in the Times Beach group but I might expect to 6 find something different in the Times Beach exposed 7 population." It says that, does it not, sir? 8 A. That is what it says, sir. 9 Q, And, Doctor, Doctor McConnell does point out a 10 difference that he believes that exists between chronic or 11 low dose exposure such occurs at Times Beach and an acute 12 dose like took place at Nitro, correct, sir? 13 A. No, I don't think that is accurate, sir. 14 Q. Doctor, isn't he saying, sir, that the effect of 15 TCDD spread out over a period of time, at least in animals, 16 appears to be more powerful than a single equivalent dose? 17 A. That is what he is saying but he is talking about 18 the Nitro group and I disagree with that, sir. 19 Q. Doctor, I will get to the Nitro group in a moment 20 and I am not asking you right now as to whether or not you 21 agree or disagree with him. I am trying to establish what 22 he, in fact, is saying with the help of your interpretation. 23 A. Thank you. 24 Q. He is saying, Doctor, that his experiments in 116 1 animals -- and he has published on it. They are in the 2 evidence in this case, sir. His experiments with animals 3 show that you can take the same amount of TCDD and if you 4 spread it out in low doses over a period of time in those 5 animals, it will have a more potent effect than if you gave 6 it all at one time, isn't that what he is saying? 7 A. That is what he is saying, sir. Yes. 8 Q. So, what he is saying from that experience of his, 9 from that scientific experimentation of his, he is saying 10 that by following the Nitro group which is as pointed out on 11 your board, many of these symptoms are acute symptoms, by 12 following the Nitro group, you don't necessarily expect to 13 find that in the Times Beach people because he is saying you 14 might find something different in the Times Beach exposed ) 15 population, is he not, sir? 16 A. That is what he is saying, sir. 17 Q. All right. Now, Doctor, there is also other 18 discussions that took place at that panel relating to dioxin 19 and the exposure, was there not, sir? 20 A. I believe there were. There is an exhibit on it. 21 Q. And, Doctor, handing you now what has been marked ( 22 Plaintiffs' Exhibit 1805, did I pass my copy to the Court or 23 counsel? There is one that has some marks on it. I have got 24 it back here, X am sorry. Doctor, Exhibit 1805 is the 117 1 Chapter 19 from that same book, is it not, sir? 2 A. It is, sir. 3 Q. And it was authored by a Matsumura? 4 A. Yes. 5 MR. CARR: And we have had documents of his in 6 evidence here earlier as well, Your Honor. I would like to 7 offer 1805 into evidence. 8 THE COURT: Any objection? 9 MR. HEINEMAN: Counsel approach the bench? 10 THE COURT: Sure. 11 (Bench conference had out of the hearing of the 12 jury.) 13 MR. HEINEMAN: Your Honor, I object to it being 14 offered. Well, I object to the document that has been 15 offered on the basis, A, that it is hearsay. Second, on the 16 basis that it is -- that no foundation has been laid. It 17 hasn't been identified, authenticated and it is hearsay and 18 it is inadmissible. 19 MR. CARR: Previously authenticated with the book. 20 The Doctor said it was authoritative. I asked him to 21 describe the authorities of people that he considered to be 22 not experts in this group, the panelists and contributors. 23 He did not name Matsumura as one of the non expert people. 24 MR. HEINEMAN: Well, regardless of whether the man 118 1 thinks It is authoritative* that doesn't establish its 2 foundation for itself admission. It is still hearsay. 3 THE COURT: The exhibit will be admitted. 4 (The following proceedings were had in the hearing 5 and presence of the jury) 6 MR. CARR: Your Honor* I would like to pass the 7 chapter to the jury. 8 THE COURT: Pine. 9 (Plaintiffs' Exhibit 1805 is passed to the jury). 10 Q. Doctor* Doctor Matsumura is part of the Michigan 11 State University group* is he not? 12 A. Yes* I believe he is. 13 Q. And isn't he head of the Pesticide Research Center? 14 A. I don't know if he is head of it but he is attached 15 to it* sir. 16 Q. And Chapter 19 is the paper that he delivered at 17 that conference at the same time you delivered your paper* 18 isn't that correct* sir? 19 A. It is a rewritten version* yes* sir* 20 Q. And* Doctor* in the first paragraph* he discusses 21 the toxic effect of -- as a matter of fact the first two 22 paragraphs he discusses the toxic effect of TCDD and it is 23 under that heading* is it not* sir? 24 A. Toxic effect in animals, sir, yes. 119 1 Q. Doctor/ is the answer to ray question yes, he 2 discusses the toxic effect of TCDD? 3 A. NO/ sir. The answer: is no/ sir. If it is overall 4 toxic effects. 5 Q. Is the heading on it/ Doctor/ Toxic Effects of 6 TCDD? 7 A. That is the first paragraph only covers animals, 8 sir. 9 Q. Doctor/ I will get to that in a moment. Is the 10 heading the Toxic Effects of TCDD? 11 A. Yes/ sir. 12 Q. Was this conference held for the purpose of having 13 concern over the health of animals or was this conference 14 held because of the concern over the health of humans? 15 A. I believe that the conference was held to determine 16 a variety of things/ not just the health of humans, sir, or 17 the health of animals. It had to do with the effect on the 18 environment. 19 Q. Doctor, with respect to the health aspect of the 20 conference, was the conference concerned with the health of 21 animals or was it concerned with the health effects on 22 humans? 23 A. It was concerned with both of them, sir. Both of 24 them. 120 1 Q. Doctor, where would you think that primary concern 2 would be? 3 A. The primary concern was a large number of different 4 aspects of the effects of dioxin. 5 Q. Primary meaning one, Doctor? 6 A. Yes. 7 Q. My question, sir, is what was the primary concern 8 of this meeting, Doctor, this conference? 9 A. Primary effect* The primary purpose was to discuss 10 dioxin in the environment. f 11 Q. Doctor, what was the primary concern for wanting to 12 discuss dioxin in the environment? 13 A. To determine what the effect on man's ecosystem 14 was, including man. 15 Q. Doctor, and wasn't the primary concern the health 16 of humans and the consequences of the unknown human health 17 consequences? 18 A. It was only one, sir, and this would be a small 19 section, if you look at that, one small section devoted to 20 human health effects. 21 Q. Doctor, I didn't ask you that. 22 A. And that was the last day. 23 Q. Doctor, I didn't ask you that, did I, sir? 24 A. Yes, you did. 121 1 Q. I didn't ask you to analyze the number dealing with 2 human health effects? 3 A. You asked me what was the main purpose of it, sir. 4 Q. Yes, Doctor, but 1 didn't ask you to tell me how 5 many chapters were devoted to the human health, did I, sir? 6 A. Not specifically. 7 Q. I asked you the primary concern of this 8 conference. 9 A. It is called Dioxin in the Environment, sir. 10 Q. My question was the primary concern. 11 A. Is dioxin in the environment, sir. 12 Q. And doesn't the preface read, Doctor, "Dioxins and 13 other closely related chemical compounds have attracted both 14 public and scientific attention in the recent years. Several 15 incidents have resulted in the introduction of both facts and 16 fear regarding the extent of dioxin distribution and the 17 unknown human health consequences." Isn't that, sir, the 18 very lead off section of the preface, sir? 19 A. That is what it reads, sir. That is what it reads. 20 Q. And, Doctor, with respect to these toxic effects of 21 TCDD, does it not say the very first sentence that "there is 22 no question that TCDD is a very unique poison"? 23 A. That is what it reads in this chapter, sir. 24 Q. "The first time I gave TCDD to animals, I expected 122 1 to see some immediate symptoms. We waited and waited. We 2 could notj see any signs o toxicity. The animals did look a 3 little quieter but there was no obvious toxicity until about 4 30 days later. At that point the animals just died. In 5 addition, we could find no clear cut dose response. Even 6 when we gave high doses, not all animals died and we had no 7 idea what the difference was among the population. Not only 8 are there differences within species, there are very large 9 differences between species as Doctor McConnell pointed out. 10 McConnell 1984, TCDD is so different in not showing organ 11 specific toxicity. Although it does produce organ damage, 12 the target organs differ from species to species, Moore, 13 1973. In addition, you cannot say what effect leads to the 14 death of the animal. If you give something like DDT, the 15 animal starts showing convulsions so you suspect that the 16 nervous system must be affected. But in the case of TCDD, 17 you cannot say why they die. It is really a mysterious 18 compound." Does Doctor Matsumura say that about dioxin, sir? 19 A. That is what he says, sir. 20 Q. Thank you. Doctor. Do you disagree with Doctor 21 Matsumura? 22 A. I sure do, and if you want me to tell you why, I 23 will. 24 Q. No, Doctor, Mr. Heineman can ask you why but I just 123 1 want to establish whether or not you disagree with this 2 gentleman as you have the others. 3 A. I sure do. 4 Q. Doctor, the article -- 5 MR. CARR Your Honor, do you want me,to continue 6 with this? 7 THE COURT: How much longer do you have? 8 MR. CARR: Well, I have this. 9 THE COURT: We will break now then. Ladies and 10 gentlemen, we will recess at this time. We will resume again 11 on Monday. As I told you we are off Good Friday. Thursday 12 we are off and Friday is a court holiday. I would remind you 13 as 1 do on any overnight break, you are not to discuss this 14 matter among yourselves, with anyone outside the jury panel 15 or as of yet form any opinions or conclusions about the 16 matters on trial. And further remind you that you are not to 17 read, listen to or watch anything about this case in 18 particular or subject matter in general in any of the media. 19 Thank you for your attention and cooperation. Have a good 20 weekend. We will see you Monday. 21 COURT ADJOURNED: 22 23 24 124 1 STATE OP ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT 3 COUNTY OP ST. CLAIR ) ) ) ) ) SS 4 5 I Kimberly Ganz one of the Official Court Reporters do 6 hereby certify that the foregoing transcript is a true and 7 correct transcript of the proceedings had in the 8 above-entitled cause. 9 Dated this day of April 1986* 10 11 12 13 KIMBERLY GANZ 14 15 16 17 18 19 20 21 22 23 24 125 1 STATE OF ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT 3 COUNTY OF ST. CLAIR ) ) ) ) ) SS 4 5 Ir RICHARD P. GOLDENHERSH # one o the Judges in and for 6 the Twentieth Judicial Circuit# do hereby certify that the 7 foregoing transcript is a true and correct transcript of the 8 proceedings had in the above-entitled cause. 1st9 Dated this day of April# 1986, 10 11 12 13 HON. RICHARD P. GOLDENHERSH 14 15 16 17 18 19 20 21 22 23 24 126 1 lirai 2 PAGE 3 WITNESSES CALLED ON BEHALF OF THE DEFENDANT: 4 1. RAYMOND SUSKIND 5 Cross Examination by Mr. Carr.......... .. 7 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 127 1 2 PLAINTIFFS' 3 EX&IMJKLt. 4 1803 1804 5 1805 6 7 3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 EXHIBITS IDETOPISP 13 25 117 128 Mizm 14 28 119