Document E9jExmee0G9qZajpp0bV0o2g

1 121 THE CIRCUIT COURT OP TH2 TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS 3 FRANCES E. KEMNER, ET AL. , 4 PlaintiffJr 5 V* 6 MONSANTO COMPANY, NO. a o -L -9 7 0 7 Defendant. 3 9 10 REPORT OP PROCEEDINGS II July 22 1985 12 13 14 Before the HONORABLE RICHARD P. GOLDENHZRSH, Circuit Judge 13 16 APPEARANCES! 17 Mr. REE CARR and MR. JEROME S2ZGPR2ID, Attorneys at 13 Lav, on Behalf of the Plaintiffs; and i 19 MR. EZNNETH HEINEMAN and MR. JOSEPH NASSIF on Behalf of the Defendant, Monsanto Coapany, :o 21 *4 23 Kathleen Watson Brunemann 24 Official Court Reporter INDEX GF WITNESSES 1 Callad on banal of the Plaintiffs: OR JEGRUE ROUSH 3 Clarification Examination 4 (Sy Mr Heineman) ..................... 2 5 6 INDEX 0? EXHIBITS 7 PLAINTIFF1S EX. N O . MARKED FOR ADMITTED S IDENTIFICATION INTO EVIDENCE 9 10 1512 11 52 12 13 MONSANTO'S EX. NO. 14 13 ' 910 16 911 17 50 55 18 19 20 21 mm 23 24 I BX IT REMEMBERED A m CERTIFIED# that heretofore# 2 on to-witx July 22, 1985, the matter as hereinbefore set 3 forth cam on for hearing before the Honorable Richard p. 4 Goldenhersh# Circuit Judge in and for the Twentieth Judicial 5 Circuit# and the following was had of record# to-wit: 6 7 8 (The clarification examination of Or. George Roush 9 by Mr. Heineoan continued as follovst) 10 11 12 (The following proceedings were had in chambers# 13 out of the presence and hearing of the jury:) 14 15 MR. CARR: Judge# there's been some dispute 16 on the record as to whether or not the reference ranges that 1? we have used for porphyrins and for the creatinines are the IS normal reference ranges that have been given by the labora 19 tory. And there was dispute as to whether or not I had ever 20 asked for them# or what they were# what these were that had 21 been given to me. I checked the records# and on April the IT 15th# 1985 I had just been delivered the day before the pile 23 of material dealing with the Xrummrich Health Study# the 24 medl cal records. I had had an opportunity to briefly scan i 1 the laboratory results and discovered that there were no 1 normals for the porphyrins at that time. And the Court will 3 note# on April the 15th# 1935# on page 107, I asked that 4 they give me the normal ranges used. That was on a weekend. 5 And the following Monday# X guess it was# at any rate a few 6 days later# on the 22nd of April# 1985 they did# Indeed# 7 produce these exhibits# 3846# 47 and 43# which deal with a the porphyrins and the creatinine levels. 9 Mow# unless Counsel stipulate that the sequence 10 of events# and that these were furnished to me in response ii to my request made on April the 15th# X want to make an 12 additional record by putting Mr. Hassif on the stand to 13 confirm that this is the sequence of events# and that these U test ranges given me# 3846# 3847# 3348, were given to me in 15 response to that request for the normal reference ranges*. 16 TH2 COURT: First of all# is there any dispute 17 as to that? I think that was the first point# wasn't it? IS MR. CARR: Yes. Xf there is no dispute# then 19 X think it's Exhibit 1509 that can be no challenge as to the 20 authenticity of that. They may not have challenged it, but 21 I don't think they have admitted in court at least that 22 these were the Metpath Test Ranges for the porphyrins that 23 were given to me# and for the creatinines that were given 24 to me in response to my request. 1 MB- HEIN2MAN: I am trying to recall in my own m mind/ Judge# the occasion when this first came up in ths 3 testimony or Dr. Roush. I may he incorrect# but I think my 4 recollection is that Mr. Carr asked Dr. Roush whether those 5 documents were# in fact# the normal reference ranges. And 6 I think at the same time# perhaps# may have represented that 7 they were furnished by Monsanto's attorneys for something 8 to that affect. My recollection is that Dr. Roush said that 9 they were# indeed# the normal reference ranges. Didn't he? 10 MR. CARRs Yes. But you objected to their 11 authenticity. You said you didn't -- and I had on the copy 12 that had been put into evidence# I had written on it "Xltro 13 normal#" or "Suskind Laboratory," because it was# in fact# 14 the same. As I learned from Carnow and Conibear# it was 15 the same reference ranges used in the Susxind Morbidity 16 Study for Nitro. And you challenged that at that time on 17 the record in front of the jury. You said# *Why these don't 18 even refer to Xrummrich#" or something of the sort# "These 19 are the Nitro." I represented then to you that these 20 were the normal reference ranges given to me in the 21 Krummrich. You again expressed a doubt# or I'm sura objected 22 on the record to the use of these values. If you didn't 23 object on the record# then there is no problem. 24 THS COURT: Hell# okay. There was an objection ! i i 11 on the record. These were admitted 1509 was admitted on ! i j m July 16th, and ay notes have they were admitted over oojec- J tion. 4 MR. H2IHSMAN: If we're talking about -- I'm 5 not sure that we're talking about the sane occasion. 6 THE COURT: This is when they were first used 7 on the 16th. 8 MR. HZINRMA27: All right. 9 THS COURT: I have in my notes that they were 10 adsitted over objection at the tine. 11 MR. H2XH2MAH: You don't have in your notes 12 what the objection was? 13 THS COURT: I don't. 14 MR. HSIRSMAM: I don't know. Was the objection 15 only that hl3 handwriting was on them, and they said "Nltro?T 16 MR. CARR: The objection was that these were 17 not connected, these were not shown to be the normal 18 reference ranges, and you weren't going to take any represen 19 tation that they were. I represented to the Court that thy 20 were produced to me, and your objection was to their authent i 21 or that they were, in fact, the normal test ranges. You're 22 not making that objection now. There's no problem. 23 All I want is on the record a statement from you that these 24 were the normal test range values given to me by you in ^ 1 rtsponse to my request of April the 15th, and that these a r e ! the normal teat ranges that were used in the laboratory m reports that ve have in evidence in this case, referring J to the Krummrich Health Study, 4 THE COURT: My notes do indicate that you, Mr* 5 6 Carr, indicated that these vers produced in response to an order of court, I don't have noted down what the specific 7 objection was, a ME, HZXHEMANs Do you knew whether Dr, -- whether 9 10 he asked Dr, Roush about it right at that point7 Because I have a recollection, maybe incorrect, that Roush said* II Yes, these, indeed, art the normal reference ranges for por-* 12 phyrins from Metpath." 13 14 MR, CARRi Hs has testified on the record that 15 these are the normal teat ranges used at Metpath. That is 16 not my quarrel. I have him on the record three or four 17 times in which he agreed that these were the normal test ia ranges. That's not the equivalent to a stipulation by you 19 that they are, or that by an agreement by you. Because you 20 made the objection on the record that you don't know the 21 authenticity of them, and you challenged them, and you objected to them, and I want it clear on the record from mm 23 Counsel that what I represented was corrsct, that these 24 were produced by you in response to my demand or request I fI 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 or these normal values, normal test ranges . t h s COURT: Whatever position you took then, do you have any objection to that now? Let1a put it that way. MR. HRINEMAN i P i n t , I want to read the transcript here. THS COURT: Sure# go ahead. MR. HEIMZMANx Of the in-chambecs conference. Then I will need to ask Joe Massif if they, indeed, are the sane ones that were produced. MR. CARR: Jesus, Ken, you can see the nunbaxs on the receipt, and the numbers -- well, never mind. Too do whatever you need to do. MR. SSXNHMANi Oh, there's a receipt here? Okay. THS COURT: That's just before the actual documents. MR. E2INZMAN: Well, from the receipt they oblvously are the same documents that were produced. THE COURT: Pine. MR. CARR: Well, are you stipulating and agreeing that exhibit 1509 represents the normal test range values as shown for those three urine specimens, whatever they .are, for the Krummrich Health Study? MR. H2INEMAN: What I would stipulate to is that these three document*, which I don't remeaoer exactly I i i f what comprised 1509 -- THS COURT: Thoee three document** 3 MR H2XHZMAH: The** three documents are 1509? 4 THS COURT: Te* 5 6 MR EZXMZMAH: But if these are 1509, that these three document* demonstrating that Metpath's normal 7 reference ranges are for aicrograma per twenty-four hour 8 sample are, indeed, the normal reference ranges that Metpath 9 used 10 MR CARR: Well, X want more than that X 11 want that these were given to me in ay response for the 12 value -- asking for the value's, normal values given for the 13 porphyrins. M MR HSXMSMAM: I am sure, as X sit here, that 15 these document* were provided to Mr Carr in response to 16 the request that i* set forth in this transcript. 17 MR. CARR: Then that's all X want* 18 19 THS COURT: Fine. Great. Okay. We'll start 20 ia a couple of minutae 21 MR. MASSIF: X remember a request from Mr. Carr 22 for the Metpath reference ranges, and to my recollection 23 those three documents were produced in response to that 24 request I 1 ( 3 4 5 6 7 3 9 10 * 11 12 13 14 15 16 17 13 19 :o 21 23 24 THE COURT: Okay, gentleman. We'll start in a couple of minutes Than* you. MR. CARR: Yes, your Honor. (The following proceedings were had in the presence and hearing of the jury:) GS0RG3 ROUSH, having previously been called as a witness under Section 2*1102, having previously been sworn, continued clarification examination as follows: EXAMINATION BY MR. HEINEMANt THE COURT: Good morning, ladles and gentlemen. I apologise for starting a little bit late. As I've told you before, you've heard this many times, there are certain matters that have to be taken up in chambers, outside the presence of the jury. We had one of those this morning, and I believe we'vo resolved it. So we're ready to proceed. Mr. Heineman. Q (By Mr. Heineman) Yes. Dr. Roush, on Thursday, when we closed court at the end of the day, we had begun discussing the Zack-Suskind-Study; had we not, sir? I i A Yes, sir. I. : | Q And I'd like to hand you a copy of that study ! ! 3 as it's been previously marked as Monsanto Exhibit Humber 4 62, and I'd like to ask you some questions about it, sir. 5 How, as I understand it, air, the only way that those who 6 could have been exposed to the clean-up of the *49 accident 7 could be determined was through the chloracne records; is 3 that right? 9 A Yes, sir* 10 Q Now, as a matter of fact, the paper states, does 11 it not, that it's subject is the chronic health sets to 12 exposure to TCDD as reflected in the mortality experience of 13 a cohort of Monsanto Company workers who developed symptoms M of chloracne following a trlchlorophenol process accident 15 at the Hitro, West Virginia plant in 19497 16 A Yes, sir. 17 3 And if you'dlook atthe lastparagraph in the 18 right column on the first page of Exhibit 62, would you read 19 that first sentence, please, to the jury. 20 A "Employees whoworked in thearea of TCP 21 production or were involved in the clean-up began to develop 22 symptoms immediately following exposure to tbe material ' 23 which was discharged from the autoclave." 24 u Thank you. And then it goes on to discuss thesei 1 symptoms; correct, sir? m A its, sir. 3 Q And would you tsll us what it saystht syuptarns 4 wars J A Should 1 rtad them or just tsll you? 6 Q Well, plsass rtad them# 7 A "Symptoms includsd ays and rtsplxatory tract 3 irritation, htadacha, dizziness and nausaa, and a sarara 9 irritant rtaction of tha exposed skin." 10 Q Than it goas on to discuss tha syapteas subsiding 11 dots it not, sir? Would you raad that next portion? 12 A "After thata initial symptoms subsidad, tha 13 chloracna and othar symptoms bacama evident." 14 Q Wow, what it appaars to ba discussad thara, air, i 15 is an acuta exposure with acuta symptoms;is that right? 16 A its* As a oattar of fact, tha immediate 17 rtaction following that autoclave diachargt waa maniftsta 13 tions of irritant and thought to ba dua to tha caustic 19 contant of tha matarial that cams out, not dua to tha TC -- 20 MR. CARR* Your Honor, I object unlass tha 21 vitnass is testifying from his own knowledge. If ha's not, ha should identify the source of his knowledge. It appears 23 as if ha's stating something as a fact. A TILS COURT: Objection is sustained* Could you I rephrase ti: question so that matter is cleared up. 2 Q (3y Hr. Heineman) Doctor, Dr. Roush, with 3 respect to the acute nature of the symptoms that arose and 4 of the exposure, how does that relate to the fact that the 5 study Is talking about results after a long period of time? 6 MR. CARRi Your Honor, Counsel isn't going to 7 rephrase that question, I ask that the jury be instructed a to disregard what the doctor said. 9 THE COURT: Objection is sustained. The jury to is to disregard. 11 THE WITNESSi I'm sorry.. Would you repeat the 12 question? I'm not sure how it related -- 1J THE COURT: Could you read back the question M please. 15 (Question read.) 16 THE WITNESS: Well, these workers did have 17 acute reaction immediately following the release, but those 18 symptoms subsided quite rapidly, and then after a period of 19 days to months they developed a skin reaction quite different 20 than the irritant reaction, and that when it cama on ovur a 21 period of days to a month or more was called chloracne. So *n* that identified group was based on the identification of 23 the chloracne or the skin reaction* 24 Q (By Mr. Heineman) Now, was it possible in 1979 I or 1377 when thi3 study -- when you began worIcing on this * study, is it possible at that tine to determine all of the I 3 people who were exposed in the 1943 accident? 4 MR. CARR: Your Honor/ first 1 would object 5 Counsel hasn't established that this witness has that 6 knowledge/ of his own knowledge/ or if he's referring to 7 this exhibit/ whether or not this exhibit says that it's 3 possible* It's not clear what he's referring to. Is he 9 referring to the witness' own knowledge? If so, if he 10 hasn't established that the witness has such knowledge. 11 MR. EZINZMANt Well, your Honor/ I'd like to 12 establish Dr. Roush testifying on behalf of information that 13 was developed by people working under him. 14 MR. CARR: Well/ I object to that your Honor. 15 If he's going to refer to this study/ refer to this study. 16 If he's referring to some hearsay documents/ or hearsay in 17 formation/ that should be here so I can cross examine and 18 determine the authenticity of it. 19 THZ COURT: I'm sustaining the objection. Would 20 you rephrase the question? 21 Q (By Mr. Eeineman) Doctor/ do you have personal 22 knowledge with respect to the way in which/ or the effort 23 that was undertaken to try to determine a cohort for this 24 study that's reflected in Defendant's Exhibit 62? I A Yes, sir. i ii m Q All right. Nov, would you tell us pitas what j 3 was done to try to determine the people who wr* exposed? 4 Was there any way to determine all of the people that vt;a 5 exposed in that 1949 incident? 6 HR* CARR: Your Honor# I object to that* Th-it* s 7 tvo questions* First of all# what was don7 I think hi- S has to establish that* k >. 9 TEE COURT: You can answer both of them in # \ 10 sequence* * H THE WITHERS: In an attempt to identify those 12 who had been involved in that accident# they attempted t 13 find whether there's records available on work records tha.._ I i 14 would identify who had been working in that accident# and j15 they were unable to do so* The other approach to deciding I. 16 who was exposed is to determine those who had chloracne* \ X| 17 Or* Suskind sent me the first group of people he knew were I IS exposed# and there were about fifty of them# fifty to J I: 19 fifty-three# as 1 recall* Then we went back# and to add on I 20 to that population who had chloracne# we went and got a j 21 copy of Mr* Voir'a files in which he listed those that were, ! mnm S on the Workmen's Compensation list* In addition to that# w< 23 checked with Workmen's Comp# and verified those names that 24 obviously had chloracne* So what we have then is a list of I people who were identified by Or. Suskind, by those who mT came in from Ed Volz, and then the Workmen's Compensation 3 files. And that constituted what they called the chloracne 4 group. That means that there could have been some people 5 who were there who had chloracne that was so mild that it 6 was not included, because a decision of who had chloracne 7 was made by the doctor. They cross-checked the medical 8 records, but it still wasn't clear if a man had a blackhead 9 whether the physician thought that was chloracne or not. 10 So we were unable to determine those who did not hare 11 chloracne and who were involved in the clean-up. We believe 12 that we picked most of them who had significant chloracne 13 by the method used. M Q (Sy Mr. Heineman) Now, when you say you had 15 access to Or. Suskind's files, now Or. Suskind had indeed 16 examined a number of these people back at the time of the 17 incident, and subsequently? 18 A Yes. 19 0 So he had files withrespect topeople who were 20 his own patients? 2! A Yes, sir. mm Q And these were employeesinvolved in the 23 incident? 24 A Right I Q Then you said something about Ed Volz's files* m7 A Right. J Q Now Ed was tha Safaty Director of tha plant? 4 A Yas# ha was* J Q And ha kapt track of thosa paopla who had 6 H a d Workman's Ccapansation claim? 7 A That's right* But ha also had a raspcnsibillty a to kaap that list up-to-data or tha plant nanagar, Tha 9 plant managar wantad a ragular rapart of how much chloracn JO thara was* n 0 So ha kapt a record of who had chloracna? 12 A Yas# sir* 13 Q And than you said you want to Workar's Compansa14 tion files? 15 A Yas* 1 Q Ware thosa kapt by Monsanto or by tha Stata? * 17 A By tha Stata* 13 Q Stata of Hast Virginia? 19 A Yas. 2Q Q And from thosa three sources you compiled tha 21 group of who had chloracna and who did not? nMm HR* CARR2 Your Honor# I object as to who had 23 chloracne# not who wars exposed and did not hava chloracna* 24 HR* H3IN2MANi I'm sorry# I misspoke. I MR. CARR: Yas, you did. Q (By Mr. Hainman) You had tha list of who had 3 chloracne? A Yes, sir. 4 5 Q Thosa wars tha people who wara follovad In this 6 study? A Thay became what va call tha cohort. Tha 7 8 population that wa could study. 9 Q Now, I want to gat to tha difference, sir, 10 batvaan an acuta exposure and a chronic exposure. People 11 that vara tha subjact of this study, what sort of exposax 12 did thay have? 13 A Thasa paopla who developed this chloracna at 14 that time wart ralatad to tha episoda in which thara was a 15 large discharge of tha 2, 3, 7 TCDD. 16 Q So which would that ba? Would that ba an acute 17 or chronic? 18 A An acuta exposure. 19 Q That would ba an acuta exposure? :o A Right. 21 Q Something thattakes place over relatively n short period of time? 23 A Yes, sir. 24 Q There's a statement that I want to direct your I attention to. 1 2 I could direct your attention to the m second page of Exhibit 62, the right-hand column. There's 3 a portion there that says "Population and Methods;" is that 4 correct? s A Yes, sir. 6 Q At the end of that first paragraph there's a 7' sentence that begins with the words "An analysis." Do you i 8 see that? 9 A Yes, sir. IQ 0 Would you read that to thejury,please. n A "An analysis of the chloracnecases and 12 exposures not associated with this accident but rather with 13 the normal TCP/2,4,5-T production processes will be the M subject of a future paper." 15 0 Now, what is it that the authors of this 16 document are referring to in that sentence? t 17 A This study was a study of those involved in the 18 acuta accident. This subsequent study was to be related to 19 what health effects were associated with the normal operation 20 and production of TCP, and the 2, 4, 5-T at the plant, over 21 a period of time. 22 Q So that would it be possible, sir, to describe 23 the second group of people to be examined in a future 24 paper, the subject of a future paper, would that be a 1 chronic exposure that*a being dealt with thre7 A Well/ the normal TC?/2,4,5-T production process 3 would Involve a continuing, long-term exposure atpopposed 4 to an episode. ^ i 5 g All right Nov what was the second - 5 the 6 second one is the Zack-Gaffey Study; is it not, sir? 7 A Yes, sir 3 g Nov, what is the difference between tise. two? 9 What are the two separate studies accomplishing? 10 A Well, the first study was a concern fair the 11 possibility that those workers involved in this accident 12 in which there were people who were quite ill They were 13 sick. Four of them were hospitalised at the University 14 of Cinclnati, some hundred miles away from Nitro, West 15 Virginia, for a study in depth So these workers had 16 significant exposure. And the question was for these 1 17 hundred and twenty-two people identified with exposure# that 13 heavy exposure had any adverse affect on their mortality 19 experience 20 g All right. Nov hov does that differentiate 21 from the second one? 22 A The second study took those workers who had 23 been working at the plant for a period of about twenty years 24 or during that twenty years, and had exposure to continuing 1 ever moat o this time, or at least up until 1969, and the i question was at these lower levels of exposure, but over 3 this long period of time, did that have any affect on their 4 mortality experience. 5 0 Nov, it may well be that there were some people 6 in the second study who were also exposed in the first one? 7 A Yes, sir. a Q And there may be some people in the first one 9 who were not involved in the second one because they weren't 10 involved in the subsequent 2,4,5,T production; is that right? II A Yes, sir. 12 Q One was for chronic exposure, one was for acute 13 exposure? 14 A Yes. 15 Q Now, with respect totheZacJc-Gaffey Study, sir, 16 does that study purport to say -- 17 HR. CARR: Your Honor, X object to the leading 18 fora of the question. I haven't objected to now, but I do 19 object now. 20 THS COURT: Rephrase it, please. I believe it 21 is leading. T* Q (By Hr. Heineman) Allright. What, ifanything, 23 air, does that study say with respect to whether or not 24 anybody who was the subject of it -- strike that, let me I Btart over again. What does that study purport to say, if i m anything, air, anout whether anybody who was listed as not 3 exposed in the Gaffey Study had ever been exposed to TCDO 4 in the past? 5 A It didn't address that question. The study was 6 simply a comparison of the mortality experience of those 7 involved either in the regular operation, on a regular basis, 3 or a year at least who had their job was making the TCP, or 9 making 2,4,5-T, and they want to know whether they had -- 10 what their mortality experience was. And for comparison# 11 the comparison craw was the rest of the plant. And the rest 12 of the plant could include those who were not assigned to 13 that unit, but were a part of the whole work force. 14 w :;ov, sir -- now, in dealing with these two 15 studies, sir -- now, Mr. Carr went through with you and he 16 said, did he not, sir,; that there were four people -- this 17 is Exhibit 1462-A, sir, I want to show you. He pi'-ks out IS four people that were exposed, listed as exposed in the 19 trichlorophsnol process accident in 1949; correct? 20 A Yes, sir. 21 w And then he showed you Plaintiff's Exhibit 2S1-B, mm in which he stated that those same four people were included 23 that's the wrong one. 24 Here, we are. Here we go. I had the wrong one. 1 1462-S, air. Keeping in mind 1462-A# listed the four T people# H a t e d or had underlined four people who had been 3 exposed in the '49 trichloraphenol process accident? correct? 4 A Yes# air. 5 Q 1462-B# had underlined the same four people as 6 being listed in the not exposed to 2,4,S-T table from the 7 Gaffey Study. 3 A Yes, sir. 9 Q Is that right# sir? 10 A Yes# sir. 11 * Nov# how could it be, sir, that the four people 12 who were listed as exposed in the trichloraphenol process 13 accident could be listed as not exposed to the 2#4,5-T in 14 the Zack-Gaffey Study? 15 A The definition of who was going t<5 be in the . 16 Zack-Gaffey exposed group were those who were working with 17 TC? or 2,4,5-T during the period of 1955 to 1977. And 13 these four people were not in that cohort as I've just 19 described that's going to be studied. They were there 20 because they could not be identified by virtue of looking 21 at the work records. mITm j So that while they may have been exposed to 23 TCCD in the trichlorophenol process accident in 1949, they 24 were not exposed to the chronic# low-level group, or just 1 chronic -- let's just use that word -- the chronic exposure' \ ij in the day-t^-day operation of the 2,4,5-T Department from 3 55 to 170? 4 A That's right J MR CARR: * Tour Honor, I would object unless 6 counsel and the witness will point out something in the 7 Zack-Gaffey Study where it says this excludes anybody who 3 was working before 7955 in the TCP accident, in the TCP 9 production. 10 THE COURT: Objection sustained. 11 MR. H2INEMAN: I think, your Honor, I think the 12 Zack-Gaffey Study itself defines the cohort. 13 MR. CARR: That's the reason I'm asking Counsel, 14 that's the reason I'm making the abjection, because I'm 15 suggesting to you that it says nowhere that the people who 16 were exposed before 1955 were excluded frcm this study. 17 The representation that you're making to the IS jury is wrong. 19 MR. HEI2IEMAN: Well, sir, I think the represen 20 tation is that those were the people who were working in 21 that department between *55 and '70. nmm THE COURT: Okay. Objection is sustained. 23 MR. CARR: Those weren't your words, Counsel. 24 THE COURT: The objection directly relates to the r* m 3 4 3 6 7 :8 9 to - II 12 U 14 15 16 17 18 19 20 21 mm 23 24 proposition being put to the witness- The objection is ; i sustained. I'll allow you to rephrase the question, if you | wish. si O y Mr. Haineman) Doctor, in light of the objection that Mr. Carr has made, sir, would you define the cohort to the Zack-Caffey study carefully? A The cohort that was going to be studied for the effect of working with TC?, 2,4,5-T was all of those who could be identified by the work records that had worked with these materials, these two materials, over the period from the first time we had work records available, 1955 up to 1977. f*e could not go beyond that. Sir, that study, the attempt to identify that cohort, was begun when? n *bout the same time, 197S, *79. w Sometime around 1978? So in 1978 you were trying to go back and find out who worked inthe2,4,5-T -- let's see ~ the 2,4,5,-T, TC? production process? A Right. C And as of that date the only work records you haci began in 1955? A That's right. U tiov; there were people, were there not, who were at work in 1955, in that process, who may have been at work tl I ia that process before 1955; isn't that right? A Yea. 3 Q And had they been at woe* foe a year, a yar or 4 more after 1955, they would be included in the cohort? 5 A That1a right. 6 Q In addition to that# air, were there people# or 7 do you know whether there were people who were not working 8 with the company in 1955 who may have been exposed in that 9 process prior to 1955 and whoa you -- could you identify 10 people of that kind? 11 A NO. 12 Q So there may havebeen people who had previously 13 worked in the process but as to whom you did not have work 14 records prior to 1955? 15 ,A That's right. 16 Q Nov# what Mr. Carrsought tohave you do was 17 to take the people from 19 -- from the 1949 incident that IS had cancer and add them to the people in the Zack-Gaffey 19 Study; is that right7 20 A Yes, sir. 21 Q All right. Now# can you do that? 22 A What do you mean by can you do that? 23 Q Well, underthe principles of epidemiology, can 24 you do that# sir? 1 A i-f yoii're trying to combine what we thought was ,i the acta of an>actzta exposure# plus those from a chronic 3 exposure#-and.'think of them at the same time# you can* t 4 Q -Ail right But under what circumstances do you t\ 5 have to do-it? What's required in order for you to be able 6 to do that# sir? 7 A Well# several things first of all# you have 3 to make sure -that your definition of those two cohorts are 9 consistent#'and'that's difficult to answer# because they weri 10 defined differently; And there's subtle differences when 11 you start talking about a cohort. You don't define a cohort 12 after you've completed the study. Both of these studies were 13 done by a study.group that was defined before they looked M for the experience. The health experience. In other words# 13 that hundred and twenty-two was put together and then they 16 went back and looked to find out whether those who had left 17 were alive or dead# that was done after the cohort is 13 designed* Otherwise it becomes a bias study. The same 19 thing on the Zack^3affey Study# that population was defined 20 and then the mortality .experience was looked at. So when 21 you start trying to-put-them together# yes# you can do it. 22 But you're not sure what you've done in terms.of how you've 23 changed the definition 'of the cohort# because you don't have 24 a clear definition of'the cohort you're looking at. That's V I one reason. 1 m Q you mean if you put them cogather? 3 A Yes 4 Q Because the tvo cohorts were put together with 5 different things in Bind; is that right? 6 A And defined differently* 7 Q Defined differently? $ A Yes. 9 Q So if you jumble them together, you don't knew 10 what the definition of your cohort is? II A That's right. 12 Q Nov, in connection with'an epidemiological 13 study, you said that you defined the cohort first without 14 regard to what the experience is. What do you mean by that, 15 sir? 16 A We define that first cohort as those who had 17 chloracne, and we were able to identify that population 1* group we're going to look at as a hundred and twenty-tvo 19 workers, and we took out one. The nurse was in there. 20 Since there was one female, we dropped her out just because 21 of the consistency. . Hundred and twenty-one of them were 22 males. The second population group was those who had 23 worked continuously in that operation, or for at least one 24 year during that time period of time. That's how that 1 population wis defined t Q Now, when you make the definition of the 3 papulation, at that time do you have any idea what the 4 actual mortality experience is for that population? 5 A No,air. 6 Q So you define it first, and then you find out 7 where the chips fall? i A That's right. 9 Q And that's done in both studies? 10 A Exactly the same. 11 Q And you don't maneuver them? You don't change 12 the cohort once you find out what the mortality experience 13 is? 14 A No, sir. 15 Q You've alreadydefined what thecohort is? 16 A That's right. 17 Q Now, so that while it is true to say, or it ia may he true'to say that both groups studied could have been 19 exposed to TCDD, that would be true, you say? 20 A Yes, sir. 21 Q They were exposed underdifferentcircumstances; T mm correct? 23 A Yes. 24 Q And the purpose of the studies was to find out - I ti: differing -- whether those differing circumstances produced differing mortality experiences) correct? 3 A Yes, sir. 4 Q Now, when Mr. Carr asked you to start adding 5 them together, the first thing he did wee ask you to name 6 certain people and he picked them off# I think# Exhibit 14 60 * 7 which was a list of everybody that was included in the Zack- 3 Suskind Study; isn't that right? 9 A Yes 10 Q And then -- then# sir# he had you start doing n some computations; didn't he7 12 A Yes# sir. 13 Q And what he would do is take the deaths as to M a certain type of cancer as compared to- the total number of 13 deaths in the Zack-Caffey Study# and then have you add in 16 the cancer deaths from the Zack-Suskind Study; correct? 17 A Yes# sir 13 Q And he had you add those to the numerator and he 19 had you add those same to the denominator; correct? 20 A No# sir. 21 Q Now# what's the difference? Why is it# sir? ri mm Why is.it that you can't compare them by just lumping 23 in the cancer deaths from the ether study without any 24 reference to the total number cf deaths in that study? i I A That first line up thera shows that there wars 2 1034 cancer deaths expected, and hs divided it by the 3 population in ths Gaffay Study in which thsrs vsrs 53 and 4 h says 18.9 percent of the dsatha wars dua to cancer. But 5 than ha took the -- ha took 67 -- ha took 53 and added 9 -- 6 that's hard to tall fro* that -- ha added 9 cancar daaths 7 from the Xack-Suskind Study to the population of lack-Gaffay 8 to coaa up with 67 In other word a f hia population now was 9 67 and ha 9 0 t 13*9 percent and said ha would aspect 12.6 IQ But you can't do that 11 Q But sir ha usad tha 139 percant which is the 12 rasult of defcersining how aany ara expectad in this 13 population -- 14 A Right. 15 Q . -- correct six7 16 A Right. 17 U That isn't tha nunbar of expected in thia 18 population ia it? 19 A Mo. Ha'strying to calculate it thare. 20 Q Right. But what in addition do you have to do 21 awan if this 10.94 ia not tha expected for this created 22 population of taking the 9 and adding than to 53 there's 23 still acne thing further wrong with it, isn't there air? 24 A Tea. I Q Okay. Now what's that? * A Ha has to change that population iron the 57 -- 3 ha has to add tha total population of tha Zack-Suakind 4 Study to it. i Q At laast that portion of tha total population 6 which is not dupllcatad? 7 A That's right. 3 U In tha Zack-Gaffey Study? 9 A That's right. 10 U So you*t o got to find out how aaay total deaths 11 there are in tha coshinad -- 12 A Eight. 13 0 -- group? You can't just taka tha cancers -- 14 that's lika taking tha rad apples out of yellow and rad 15 apples# and rad apples out of yellow and red apples# and 16 let's take these reds and these rads# and put than over 17 hare and say among this bunch of apples we've got a lot 13 ore zeds 19 A That's right. 20 Q But that doesn't show what tha total incident 21 la# does it? 22 A That's right. 23 U You've got to taka tha yellow apples from hare 24 and bring the over with tha yellow apples from hart# don't I you, sir7 * A That's right. 3 Q So you'rs showing the number or red apples, whic 4 may bo the number of people exposed to TCDD in the entire 5 population, not just in that portion at the population; 6 correct? 7 A Tee. 3 g Now, so then..it you look at Exhibit 146-i-A here, 9 sir, he says here that the deaths observed were 13 and not 10 9* 11 A Ye*. 12 Q But he compares it with the deaths expected to 13 the. deaths expected only from the Zack-<3affey Study popula 14 tion; correct? 15 A No, sir. He compared it to that recalculated 16 one on the other page right behind it. 17 Q All right. Back here? U A Yes. That right there. That one two six. 19 Q Twelve point six? 20 A Twelve point six, yes. 21 g All right. So you calculated -- what'a this, t 22 new expected? 23 A Yes. 24 g Now this is the new expectedfor this i population? i\ m A Yaa, and that's not a population. J Q But what*a tha new expected for tha real 4 population, which is how many people? 5 A Fifth-eight plus thirty-two, minus four# I think 6 So it's -- it's 86. What you should do is taka that 86 7 tinsa -- 18.9# ii in fact tha parcant expected in a larger S population would ba tha s u e aa it was in tha first popula 9 tion# and that's not correct. 10 Q So that changes too# doesn't it? 11 A Bight. Tcu can't do that. That percent 12 expected in tha Zack-Gaffey Study was derived from a 3 computer program which, corrects the expected by virtue of M age. As a population gets older# the cancer experience 15 . increases. So you never can pick up and identify the 16 expected. First of all# the age expected mortality from 17 cancer in any population is about twenty percent. So that's IS pretty close. But that that's expected in any special 19 population ia dependant upon the age of the population. So 20 when you start to add# take 18.9 percent in the Zack-Susklnd 21 Study# which was considerably cider than the. Zack-Gafiey 22 because it was based on that population back in 1949# the 23 expected is going to be quite different from that. And you -4 can't do it anyway -- you can't take 13.9 and multiply it i i 1 t i m e the 2ack~Gaffey mortality and just add the cancer to y m it and say that's the population* The population is the 53 3 plus 32, minus the overlap. So that's completely wrong, the 4 way that was done. J Q How, why is that, sir? Are there principles of 6 epidemiology we're talking about here? 7 A The expected in mortality experience in any 8 population is dependant upon correcting it for age. And in 9 order to correct it for age, you can do it manually, but it 10 would take days. So there are computer programs that have n been written to take a population in which you insert the age 12 of each one-of the people involved in this study, into the 13 program, and then it calculates the expected cancer experiar.c 14 cased on age. 15 Q All right. Hell, let me direct your attention 1* again, if 1 may, to Defendant's Exhibit 62 If you'll lock 17 at the second page-of the exhibit, sir -- 18 A Are you talking about -- 19 Q fas, the Zack-Suskind Study. 20 A I don't have it -- Zack-Suskind, all right. 21 Q All right. The second page, rightwhere you 22 were. 23 A All right. 24 Q Right there. Right down at the beginning of 1 this paragraph* Dr. Suskind is describing there, is he not 2 one of these generally recognized computer programs? 3 MR. CARR: Or. Suskind or 2ack? Is the principle 4 author Suskind -- ' J Q (By Mr. Heineaan) All right* Zac* and Suskind 6 are discussing here one of these generally recognized 7 programs; isn't that right? a A Yes* 9 3 In other words, when they say "The data were to analyzed by the modified life-table method using the updated 11 Monson program," it doesn't tall you right here what the 12 updated Monson Program is, does it? 13 A No, sir* 14 3 So that the people, this being written for 15 other epidemiologists, I suppose, people will know what the 14 updated Monson Program is? 17 A Yes, sir. IS 3, Wouldn't they? 19 A Yes, sir* 20 Q Why do they know that? 21 A Because it's commonly used. 22 Q Everybody uses it? 23 A Yes* 24 Q All right. So that whenyou're talking about I apidaaiological comput*r program*, the** ara things 2 that art usad all ovar tha country? 3 A Yas# sir 4 Q And thasa art statistical analysas amployad by 3 mathaaaticlans; corract? 6 A Yas# sir 7 Q Now, if lndaad this procass was usad by Mr 8 Carr# whara ha addad only tha daaths# only tha cancar daatha 9 from tha Zack-Suskind Study and not tha total nuabar of 10 daaths# so that things# as Z undaxstand it# that ara wrong 11 bara ara ona# you can't just taka tha cancar daaths# you'ra 12 got to bring in tha total nuabar of daaths into your 13 danoainator hara? 14 A Right. 15 U Don't you? 16 A Yas# sir 17 Q In addition to that# your axpactad changas# 18 doaaa't it? 19 A Yas Ha was trying to calculata tha axpactad 20 thara# but it is not -- but you can't avan do that that way 21 Q All right. So your axpactad changas? 22 A Yes. 23 Q In addition to that your axpactad changas not 24 only bacausa of tha nuabar of paopla involvad# but your I expected changes because of the differences in age of the people involved? 3 A Yes, sir. And time of death. 4 Q And the time of death -- 5 A Right. 6 Q -- is another factor. So all of those have to 7 be plugged into the computer in order to come up with what 8 in fact is the incident of death, whether it is statistically 9 significant? 10 A Whether it's greater than the number of expectedL 11 all that has to be done. Yes, sir. 12 Q Doesn't it? So that this figure, where other 13 types of cancer deaths have been calculated by Hr. Carr, . 14 that's not correct either, is it7 15 A No, sir. 16 0 For the reasons that we'vejusttalked about? 17 A Right. 18 Q And this onefor adifferent kind ofcancer 19 death, that's not correct either, is it, .for the reasons 20 we talked about? 21 A That's right. 22 Q And the same would be true or this one? 23 A Yes, sir. A 0 All right. Thatgets into the next study. We'lJ. I worry bout that later. Now, in the Zack-3uskind Study, you! * studied a hundred and twenty-one people; correct? 3 A Yea, air. 4 Q Now out of the total deaths, there were how 3 many, 32? 6 A Thirty-two. 7 Q And how many were expected, sir? 8 A Out of 46.4. 9 TEE COURT: X*m sorry. What was that number? 10 THS WITNESS: Forty-six point four. 11 THE COURT:. Thank you. 12 Q (By Mr. Heineman) Now in that study, Dr. Suskij 13 says on page -- well, it's the third page of the exhibit, 14 right in the "Results" section -- IS MR. CARR: What exhibit are you talking about? 16 MR. HEINEMAN.: 62. Defendant's 62, the Zack- ,f 17 Suskind Study. 18 MR. CARR: You said Suskind again. Or. Zack 19 said this, and Suskind signed it along with Zack. 20 Q {By Mr. Heineman) The Zack-Suskind Study. 21 A Yes. 22 Q The results are stated there on that page right 23 below Table 1, are they not, sir? 24 A Yes, sir I Q And it says, "The results of the standardized mortality analysis af the 121-member 3tudy cohort are shown 3 in Table 1j" correct, sir? 4 A Yes, sir. 5 Q "The standardized mortality ratio for all deaths % 6 is shown to he 0.69, with 32 observed deaths and 46,41 7 expected.* 3 A Yes, sir. 9 Q Correct? So that's 41. He says this is the 10 only statistically significant difference shown in this II table; correct? 12 A Yes, sir. 13 Q The only one that was statistically significant U was this. And what was it? It was low, wasn't it? IS A Yes, sir. 16 Q It was statistically significant, less, fewer 17 deaths than expected; correct:? 13 A Yes, sir. 19 Q All of the other findings where excesses were 20 found and there are lung cancer, disease of other respirator f21 pardon me -- respiratory system and lung, there are excesses 22 found, are there not? 23 A Yes, sir. 24 Q But they're not statisticallysignificant? i 1 A That's right. m Q The diseases of the circulatory system are 3 found to be lass than expected? 4 A Yes, sir. 5 Q Arteriosclerotic disease, including coronary 6 heart disease, is found to be less than expected? 7 A Yes, sir* 3 0 The malignant neoplasms, all malignant neoplasms 9 are found to be as expected; right? 10 A Yes, sir. M Q Cancer, 9 observed, 9.4 expected. 12 A Right. 13 0 Right? New, these expected figures are expected 14 this population; correct? 13 A . Yes, sir. 16 0 All right.Gastrointestinal, are these cancers 17 now? 13 A Yes, sir. 19 Q Gastrointestinal cancers, none found, 2.5 20 expected. 2! A Yes, sir. 22 Q Correct?Lung cancers; correct? 23 A Yes, sir. 24 Q Five found,2.35 expected. Correct? I I A Yes, sir* Q So .the gastrointestinals are low by some margin, 3 the lung cancers are high by some margin, but neither of'the 4 is found to be statistically significant? s A That's right. 6 Q Heart disease, 13 found, 17 expected* Correct? 7 A Seventeen seventy-four* 8 U Seventeen point -- 9 A Seventy-four. 10 Q All right* And that was f^und not to be 11 statistically significant? 12 A That's right* 13 Q The bladder cancers, none found; correct? 14 A That's right. 13 0 Was there an expected level there for bladder 16 cancers? 17 A One point one six. 13 Q That's the Zack-SusJcind Study, isn't it, sir? 19 A That's right. 20 Q Zacfc-Gaffey- Now what's the population in this 21 group? n% I don't have it. 23 3 That's Plaintiff's Exhibit 291* It may be up 24 here* No, I'm sorry, it sure isn't. Let me hand you, sir, l 1 i I what's free* aarxed as Plaintiff's Sahihit 2*1 and Defendant m H w i i n t Sxhlhit *5 Me that's tbs 3a c t u a l fay Study, is 3 it net sir? 4 A res, sir J U Mow what's the population is this group, six? 6 A Piity-eight. 7 U Plfty-eight is thenuafeer ofdeaths; right7 8 A Yllf Six 9 0 Out of a s m a largerpopulation than that? 10 A Mot defined 11 0 All right If X can dixsct your attention Mach 12 to the sach-fuskind Study, there were a hundred and tventy- 13 one that had cnloracae, hut there vert thirty-two deaths; 14 right? 15 A res, sir 16 W Ail right; so the Xack-Gafiey we hare total dca Lhs 17 fifty-eight Me nave total cancer, ho aany, sir? 18 A line 19 Q Asd ho many expected? 20 A Tea point ninety-four 21 U In this population; correct? n A res That population of that age distribution* 23 Q Gastrointestinal, ho many? 24 A Xero 42 I Q None. And how many expected? A Two point eight zero. * 3 Q Lung? 4 A Six. i Q How many expected? 6 A Three point five seven. 7 0 Heart disease? 3 A Twenty-^seven* 9 Q . Hov many expectedair? 10 A Nineteen point seven two. 11 Q And bladder? 12 A Bladder two, with point twenty-two expected. 13 Q Tea, sir. Now of the total of these 32 deaths 14 in the Zack-Suskind Study, there were four that we knew of 15 that were in the Zack-Suskind Study and listed as unexposed 16 in Zack-Gaffeyj correct? 17 A Tea. IS Q In addition t^ that, air, were there some that 19 were in the Zack-Suskind Study and listed aa exposed in the 20 Xacfc-Gaffey Study? 21 A Yea, four of them. 22 Q So there ia a total of eight people that overlap 23 between the two groups? 24 A That's right ii I Q The two^ groups of deaths? 2 A That's right. 3 0 Wow with respect to adding,Zack-Suskind and 4 Zack-Gaffey, what did you do with that, sir? S A You111 have to add the S3 of the Gaffey Study 6 and you add to that the 32 Zack-Suskind, sinus four that 7 were already included. 8 Q Wow, how about the other four7 9 A That's the four we're adding. 10 Q All right. So that the total deaths when you U add these two together arc how many? 12 A It's 53 plus 28, or 86. 13 Q So it's not 67? 14 A No. 15 Q ' It's 86? 16 A That1s -right. 17 Correct? Did you in the Epidemiology Department 18 make this calculation since Mr. Carr went over this with 19 A Yes, sir. 20 Q All right. And what did you da in order to 2! the calculation? A We used a Monson Program based on the age 23 distribution of that 8fi to determine what the expected 24 death for each one of those categories. 1 q r*5ht. Mow over hers you've got the computer Mcnaon Program; correct? j 3 A Correct* 4 Q Over here we have what computations Mr* Carr J went through with you* Okay? & A Right. 7 Q Now v start with the total cancer. Let's make 3 sure we've got them in order hers. Gastrointestinal, lung/ 9 bladder lymph system/ other cancers/ and heart disease* 10 Correct/ sir? tl A Yes, sir. 12 Q Nov those are the variousitems that Mr. Carr 13 went over with you? 14 A Yes, sir. 15 Q New -- now, as to total cancers, Mr* Carr said 16 there were 13, and there should be expected hew many, sir7 17 Twelve paint six, wasn't it? 13 A That first item you had was twelve six* 19 Q Okay. As te gastrointestinal, he saidthere 20 were two, and -- 21 MR, CARR: Your Honor, I don't really mind being 7*7 considered as a witness in this case, but I've not said 23 anything. I've asked questions and the witness has respond 24 ed, various witnesses have responded giving these seta, and I all tiles particular facts were elicited from this witness j 2 afc this time frcm the exhibits in evidence, X object to j 3 counsel characterising as "I said," 4 HR HZINZMAM: I think that's quite accurate# 5 Hr, Carr, 6 MR- CARR; Thank you, 7 MR, HSIRZMAM: What you did was write down thesei 3 calculations far him. You said you had done them on a 9 calculator. Correct? 10 HR. CARR; Counsel# as you know, each thing on 11 there has tw be agreed to by a witness based upon the facts 12 given the witness# based upon the exhibits in evidence# or 13 else it cannot be put there for the jury# as you're aware 14 cf that. It cannct be admitted into evidence. Therefore, 13 each fact that X have put on any board X have done ao with 16 the agreement of the witness at the particular point in 17 time 13 TEZ COURT: Objection is sustained. Could you 19 rephrase your statements, 20 Q (By Mr. Heineraan; Doctor# Mr. Carr showed you 21 a calculation for lung cancer. Do you recall that? 22 A Yes, sir. 23 Q And he said there were -- 24 MR. CARR: Your Hcncr 1 Q (By Mr. Keineman) -- he said there were ten? MR, CARR: Your Honor, X object, I gave the 3 calculation to the witness. The witness agreed that that 4 calculation, based upon those facts, were correct. These 5 are not calculations that are mine, I 1!! be glad to testify 6 to them, but h&e way that it works, Counsel, is the witness 7 either agrees or disagrees. If he disagrees, it cannot be 8 written on the exhibit, 9 MR. HEINEMANx Your Honor, if X might address 10 that a moment. My recollection of what happened was thsit 11 the witness said a number of times that you can't do that* 12 You can't add the two together. And Mr. Carr said he could, 13 and that were these calculations correct if you assumed 14 that they added them together. That's what the witness 13 agreed that the arithmatic was correct. 16 HR. CARR: What I gave to the witness were the 17 facts that were in the exhibits. I said based upon these 18 facta is this calculation correct, and the witness agreed 19 based upon those facts that they were correct. 20 THE COURT: Objection is sustained. 1*11 ask 21 you again to rephrase it. 22 Q (By Mr. Keineman) The calculations, sir, 23 that you went through with Mr. Carr, reflected 10 lung 24 cancer deaths and 4.12 -- now wait a minute. Well, here 1 we've got it right here. Plaintiff's Exhibit 1465-A. Do j 1* you see thati sir? 3 A Yea, sir. 4 C For lung, 10. Genitourinary, 2. Correct? 3 A Yes, sir. 6 Q Mow he listed 10 for lung. 7 MR. CARR: Your Honor, Counsel is doingtth* sane 8 thing again. 9 MR. HEINEMAN; I'm sorry. It's a freudian slip, 10 Judge. 11 0 (Hy Mr. Heineman) The calculation states 10 12 lung cancer deaths; is that right? 13 A Yes, sir. 14 Q And it says here on Plaintiff's Exxhbit 1465-A 15 10 lung cancer deaths; correct? 16 A Right. 17 Q And the number expected for lung cancer deaths 18 was calculated to be 4.12; is that right, sir? 19 A X don't recall. That's it. 20 Q Is this it? 21 A Yes. ii ** Q Four point one two. Where the 143 percent -- 23 A Yes. 24 Q nJ1L1i. *i .*I-*4>.. So that's for the lung cancer there, I as shown on 1465-A7 A Right. * 3 Q All right. Mow, sir, with respect to -- with 4 respect to bladder cancer, there were two H a t e d in 1465-Aj 5 correct, sir? 6 A Yes. 7 Q The calculation of expected -- I don't see that 3 here. I'm trying to find the exhibit where that number 9 was, Judge. 10 THE COURT: Why don't we take a short break and 11 you find it? 12 MR. HSIMEMAN: All right. Thank you. 13 THE COURT: Okay, Ladies and gentlemen, we'll 14 take a short break at this time. I will remind you, and 15 this would go for any other breaks which we take, not to 16 discuss this matter among yourselves, with anyone outside 17 the jury panel, or as'o f `yet fora any opinions or conclusio] IS about the matter in trial. Court is in recess. 19 20 (Short recess.) 21 22 Q (By Mr. Heineman) Doctor, at the break you 23 corrected me on something, didn't you, sir? You said this 24 G.I. should be G.U.; is that right? I'P I A *^es, sic, 2 Q Wh<it would that stand foe? 3 A That leans gastrointestinal, and G.U. would be 4 genitourinary. i 5 j Okay. 6 MR. CARR: And anotnar corraction, what is that 7 exhibit number, counsel? 8 MR. HEIREHAM; Mo, not yet, 9 MR, CARR: Why don't you put an exhibit number 10 on it so I can refer to it? 11 MR, HZIMEMAM: Okay. I'll be glad to, 12 13 (Defendant Monsanto Exhibit 910 was marked 14 for identification by the court reporter.) 15 16 0 (by Mr. Heineman) Doctor, I'm marking this 17 sheet that we've seen drawing on here as Defendant's Exhibit 18 910, and that's this last sheet where we're addking Zacfc- 19 SuaJcind and acx-Garfay together; correct, sir? 20 A Yes, sir, 22 MR, CARR: It refers to a "Carr Study," or a 22 "Carr column." of course, that's inaccurate to be an 23 exhibit, or Dc. Roush's testimony to that affect. Sut I '4 haven't testified to it. I object to the use of the word I "Carr" on this exnioit. HR* HEINEMAN: Well, your Honor, the reason 3 the "Carr" is cn there is that thest were til# calculations 4 that Mr. Carr want through with the witness. And it was 5 to identify then as that column only. 6 TH2 COURT: I'd prefer that you change that. 7 I'll allow you t~ change it to whatever nuncer of the 8 exhibit that you've been referring to that those calcula 9 tions 10 MR. HEINEMAN: Well, it*a a combination of 11 exhibits, your Honor. 12 THE COURT: I do want you t change that. 13 MR. HEINEMAN: All right, air. 14 THE COURT: You've been referring to 1465-A and 13 MR. CARR: Just put the exhibit numbers on it 16 that you're referring to, Counsel. Then you don't have to 17 guess acout vnat you're talking about. 18 MR. H3INEMAN: Nov these documents here, your 19 Honor, frca which these numbers came, some of them came, 20 were never aarxed oy Mr. Carr. Could we get plaintiff 21 exnicit numbers on those, then I can put the numbers of 4k there. 23 THE COURT: ' Fine. 24 MR. CARR: That's fine with me l I HA. ni:iHAHt I tiiinx it atarta bar. * TnZ COURTi You can just aaxa it a group axhihit 3 HA. HAIHAHAHi Maka it a group axhihit, your 4 Honor? 5 TH COURTj It'a tba saaa calculation*. t 6 7 (Flaintixx'a Croup Exhibit 1512 was aarkad 3 for idantiiication by tba court raportar.) 9 10 HA. HAIHAHAHi All rignt So that tba r w a r d y 11 would be claax# your Honor# AlaintiTT'a Croup Exhibit 1512 12 conaiata o tna xixat ahaat of calculations in wnicn Mr. 13 Carr -- in wnicn tnara appaars calculations 67 tiaaa lb.9 14 parcant equals 12.6. IS Tba aacond ahaat ox calculations anaing in tba 16 atataaant ona nundxad foxty-thraa parcant. Tba third ahaat 17 of calculations anaing in tba atatanant 92 parcant in axcass; 18 And tba fourth ahaat ox calculations anding in tba nunoar 19 25 parcant 20 TH COURTi Fina* 21 w (dy nr. aainaman) now# air# witn xaapact to tba 22 blaadax -- with xaapact to bladder cancar# tba nuaoer which 23 appaars in tna acx-Oaffey Study# wnicn is Plaintiff's Exhibit 2a 1, as tna expected is wnat# air/ I Point twenty-two m Q Point twenty-two. And Plaintiff's Group Exhibit 3 1312, to your recollection, air# do not contain a calcula 4 tion for bladder cancer, does it? 5 MR* GAJUU X objact to tha fora of the question. 6 TSS COURTj Objaction sustained 7 Q (3y Nr Heinexaa) Does Greop exhibit 1312 3 contain a calculation for bladder cancar? 9 A No, sir JO Q No with raspect to the lyxph cancar calculation< 11 Exhibit 1465-A shows a percentage of deaths higher than 12 expected That's Plaintiff's exhibit 1*465-A of 92 percent 13 And wa can trace a calculation for that as part of Group M exhibit 1512, can wa not, sir? 13 A Yes, sir. 16 U And in that tha expected was placed at 1.54* 17 correct? Zn tha calculation in Group exhibit 1512 18 A Which is 1512? 19 Q X'a sorry? 20 A Which is 1512? 21 Q 1512 is this group exhibit of calculations, air n A Yes Right. 23 0 Right? 24 A Yes. I Q And from Exhibit 1465-A we 3ee that there are H a t e d ae 3 -- 3 A Right. 4 Q -- occurring. Now, sir. with respect to other 5 sitae, we see from Exhibit 1465-A that there are thrae 6 occurring, and from Exhibit 15 -- two occurring at a percen 7 tage of death higher than expected of 2$ percent, and if 3 we go back to Group Exhibit 1512 we see that in order to get 9 that 26 percent there was a 1.59 expected used* 10 A Yes* 11 U And with respect to heart disease, air, we see 12 from Exhibit 1465-A that there are 27 accounted for there. 13 We don't have -- do we have such a calculation among Group 14 Exhibit 15127 15 A No, sir. | 16 Q But from Exhibit 2S1 we have the expected of 17 what, sir, 19*72? 18 A 19.72. , i 19 Q All right, sir. Now you told us, sir, that you 20 caused a computer Monson Program to be run; is that right, 21 sir? n A Yes, sir. 23 Q And how did you go about doing that? 24 A We took that -- what we were trying to find is 1 what would be the expected cancer, C.U., lung, bladder, y lymphatic, other, and heart for a population or a size of 3 66 with the age distribution as presented in that group. We 4 used the Monson Program to determine the expected rates J for each of those. 6 Q And the Monson Program was used on this 86 and 7 the group you looked at were the two groups that were put S together? is that right? 9 A Yes. 10 Q So that you could get a determination of age? 11 A Yes. Assuming that they could be put together. 12 Q Assuming that they could be put together? 1J A Right. U Q All right. And whom did you di3cuss this with? 15 A Dr. Gaffay. 16 Q Dr'. Gaffay? 17 A Right. IS Q And you and Dr. Gaffey worked together on this 19 being performed? 20 A Yea, sir. 21 Q All right. mm 23 (Defendant Monsanto Exhibit 971 was marked 24 for identification by the court reporter.) 1 1 >1?.. CASH: :'ouc Honor, I object to any use by Gaffay unless Dr. Roush did it himself. If or. Gaffey did 3 it. Or. Gaffey should be here. It's not clear thus far, 4 ether than the fact that Roush discussed it with Dr. Gaffey, 5 who worked the computer, who put it in, who did the study. 6 THE COURT: Would you clarify that please. / MR. HEINEMAM: 1*11 be glad to clear that up. 8 THE COURT: Fine. 9 Q (3v Mr. Heineman) Dr. Roush, tell U3 how you 10 and Dr. Gaffey did this, and what each of you did. 11 A We -- I asked him whether we could put these 12 two studies together in his opinion, and he said no, they 13 could not be put -- 14 .R. CARR: our Honor, I object to any testimony 15 that this witness is going to give to some other person. 16 THE COURT: Objection is sustained. It is 17 hearsay. 18 Q (By Mr. Heineman) Mow, if you would, sir, tell 19 us what the two of you did, together or separately, in 20 coming up witn the figures on the computer Monson Program. 21 A Ha did the computer analysis of the expected n mm mortality for each of those specific causes of death. 23 3 So -- 4 A Related to a population of 86 with the age i 1 distribution that could only be gotten from that program. y Q All right. Now was that done under your 3 direction, sir? 4 A yes, sir. 5 Q Were you with him out at Monsanto when he did it 6 A No, sir. 7 Q So that it was at your Instruction that he S performed this exercise with the Coaputar Monson Program? 9 A Yes, sir. 10 Q And then he came to you with the results? II A Yes, sir. 12 Q All right. Let me hand you what's been marked 13 as Defendant's Exhibit 9T1, sir. Can you identify that for 14 me. 15 A Yes, sir. 16 Q ' What is that? 17 A This is the proportional mortality ratio study 13 of Gaffay by putting those two populations together. 19 Q I notice it's in handwriting; is that right? 20 A Yes, sir. 21 Q Whose handwriting is that? 11 mm A Dr. Gaffey's. 23 Q And that was -- that handwriting, was that given .4 to you? I I (I 3 4 5 6 8 9 JO 11 12 13 14 15 16 17 IS 19 20 21 23 4 i A Yes, sir. I j Q Was that the report of what you had aaiced him to do? A Yes, sir Q Sir, was there a determination with respect to this.Computer Monaon Program aa to how many total cancers were to be considered? MR- CARR: Your Honor, I object Any use of the table is clearly Or Gaffey's table, and not OrRoush's table, and not be used unless 1 cross examine Or Gaffey as to its authenticity, and hov he got it is clearly a self-serving statement prepared by Monsanto. I object to it. MR. HEIREMAN: Your Honor, there isn't any question, as I've established through this witness, this work was done by Or. Gaffay under this witness' direction, and that this report was made by Or Gaffey in his own handwriting as V* the results of the report on the results of this Computer Monson Program. I think under those circumstances, all I want this witness to do is to report what those numbers are. MR. CARR: I object to it, that all he wants to do is to have Dr. Gaffey*s table introduced into evidence, or used without Dr. Gaffey being here and subject to the 53 1 cross examination as the rules require i TEE COURT; Objection is sustained. 3 Q (By Mr. Heineman) All right. Doctor, one of 4 the items included on Plaintiff's Exhibit 1464-A is an J entry for a Mr. John Workman. Do you see that, sir? 6 A Yes, sir. 7 Q Whose date of death was 1971. Do you see that, ** S sir? 9 A Yes, sir. 10 Q And the source of information was Marcia Strauss 1! A Yes, sir. 12 Q Do you see that, sir? 13 A Yes, sir. 14 Q Mow, this John Workman is included on this 15 exhibit entitled, "Cancer Deaths of Workers Exposed to TCDD 16 Omitted from Table 10 Zack-Caffey Report;" correct? 17 A Yes, sir. IS Q And it is a fact, is it not, that according to 19 this exhibit, which was shown to you a couple a days ago, 20 a few days ago, that the souce of that information was Mar21 cie Strauss; is that- right? A Yes, sir. 23 Q You have -- Do you have Plaintiff's Exhibit 1463 24 Thank you. Let me hand you what's been previously marked I as Plaintiff's Exhibit 1463. Do you remember that document,,* ! sir? 3 A Yes, air. 4 Q Mr. Carr went through it with you, or went j 5 through portions of it with you, did he not? 6 A Yes, sir. m4 0 And he asked you specifically about a certain $ page which is page four of four, and Attachment IX, Roman 9 Numberal XX. Do you remember that, sir? 10 A where was that, sir? X don't remember it. I! Q Page four offour,Attachment II. 12 A Yes. 13 Q All right. Under there he asked you about the 14 entry for a Mr. John Workman, did he not, sir? IS A Yes, sir. 16 Q And this is. the same John Workman for which 17 Strauss is listed as the source of information? IS A Yes, sir. 19 Q And there is a portionof this record here, 20 there's some writing on this document that's in evidence 21 which Mr, Carr did not ask you to read to the jury. Do 22 you remember that? 23 A Yes, sir. 0 Would you read it tothe jury -- i i I MR. CARR: Would you identify whose writing it m is, because this is a work of Strauss, unless this is 3 Strauss' handwriting on there, I'll object to it. 4 THE HEINEMAN: The document is in evidence, Mr. 5 Carr. 6 MR. CARR: Then I withdraw the objection. But 7 I would ask that you identify whose writing it is, Counsel. 8 MR. HEINEMAN: I don't know whether this 9 witness knows whose writing it is. 10 0 {By Mr. Heineman) Do you know whose writing II that i3 there, sir? 12 A No, sir. 13 Q you don't know one way or the ocher? M A No. IS U It might be Marcie Strauss, it might not be? 16 A Yes, sir. ; 17 MR. CARR: T object to that. That's pure 18 speculation. I ask the jury be instructed to disregard it, 19 THE COURT: Objection is sustained, the jury 20 is ordered to disregard it. 21 0 O y Mr. Heineman) Now would you read that statement to the jury, please. 23 A "He shouldn't becounted asexposed because 24 information came from the medicalrecords, not the work 1 history. i Q All right. It says he shouldn't be counted as J exposed because tne information came from the medical 4 records, not the war* history? correct? 5 A yes, sir. 6 Q :iov, the Zack-Gaffey Study, sir, was based upon 7 work histories, was it not? 8 A Yes, sir. 9 0 And it was the people whose work histories 10 .demonstrated their exposure to the process of menufactor in<j 11 2,4,5-T and TC? that were included? 12 A Yes, sir. i 13 Q So that, in thi3 document that's in evidence, 14 the typewritten portion has John Workman listed? 15 A Yes,sir. 16 J The handwriten portion says he should not be 17 included? 13 A Yes, sir. 19 Q Now, sir -- before 1 get to that. Let me ask :o you this. Or. Roush, if you have two separate studies, and 21 statistically one study does not reveal a certain abnormality, m and statistically the other study does not stress that 23 particular abnormality, even though both are looked for, if 1 you put the two together, what would you expect to find? A Since you're adding constant ratios, a certain percentage in one study has cancer and a certain percentage of the other that have cancer, the percentages will come out to be about the same, and relate to the two of them It won't be strikingly different? Q So that if you put the sets of figures together properly by adding the total populations studied in each, that you shouldn't find enormous changes from one to the other, should you? A No As a matter of fact, it would be someplace inbetween Q It would be inbetween the finding of one and the finding of .the other? A That's right. 0 It's like taking five and four, putting them together to make nine, divide it by two and you get four and a half? A Yes The only problem is that the populations are not eqpal size, so they have to be weighted. Q All right. So that in an epidemiological study, the populations have to be weighted according to size, according to age? A Yes, sir. Q Those kinds of corrections have to be made I According to data of death as well. But when you do all of those calculations according to the Monaon Program, then 3 what comes out is something that's a hybrid of the two? 4 A That's right 5 Q But it's not going to be outlandishly greater 6 than either one, is it? 7 A Right The only thing that will happen then 1* 3 the significance of it will be related now to the new 9 larger denominator, ao the significance will change because 10 of the larger number in the denominator That's the reason II the denominator is so important It's the reason you can't 12 just take part of it and add it 13 Q So the larger denominator may create something 14 that is statistically significant that wasn't before? 15 A That's right *i 16 Q And it may create something not to be statistics t 17 ly significant that was before? IS A Yes, sir 19 Q So the larger numbers change statistically, 20 the findings of each one separately? 21 A That's right 22 Q But not greatly7 23 A No. No. It depends on how far they're apart, 4 because a larger one will tend to make the numbers come up closer to the larger one- 1 7 Q All right. But it's not going to be outside 3 the range of either one? 4 A No, sir. 5 Q It's going to be somewhere inbetwaen them? 6 A Right. ** 7 Q Now, sir, do you have Exhibit 1483 there? S I'm sorry, here it is right here. Exhibit 1483 is in 9 evidence there, sir, is it not? 10 A What do youmean inevidence? 11 cj Well, it has been admitted into evidence, has it 12 not? 13 THE COURT: I'think it has. 14 Q (By Mr. Heineman) You may not know that, Dr. 15 Roush, but I think it has occurred. Now I'd like to direct 16 your attention to page 39, X think it is, or that exxhbit. 17 THE COURT; It has been admitted into evidence. 13 MR. HEINEMAN: Thank you, Judge. would you 19 mark that please. 20 21 (Defendant Monsanto Exhibit 912 was marked 22 for identification by the court reporter.) 23 24 Q (By rfr. Heineman) Sir, let me hand you what's I been marked for icentificacion purposes as Defendant's Exhibit Number 912. Is that an accurate copy of page 30 of 3 Exhibit 1483? 4 A Yes, sir. 5 MR. HZINEMAN: Your Honor, may I pass copies of 6 Exhibit 912 to the Qury? 7 THE CDtTRT: Yes, you may. 8 MR. CARR: No objection, ,your Honor. 9 Q (Sy Hr. Heineman) Mow do you reaemoer, sir. IO Hr. Carr discussing with you the subject of the relationship II statistically between 2,4,5,-T exposure and the extent to 12 which PAS caused bladder cancer in the Nitro population? 13 A Yes, sir U 0 Do you remember that, sir7 IS A Yes, sir. 16 Q Now there was no doubt, was there, sir, that 17 Monsanto was aware that exposure to PAS, which stands.for -- 18 A Para-aminobipheny1. 19 Q Para-aminobiphenyl7 20 A Right. 21 C That had been manufactured at theNNitro Plant ' mm up until like 19357 23 A Yes, sir. 24 w Was found to be a bladder carcinogen, and was no 1 1 longor manufactured after that date. A Yes, sir. 3 Q And Monsanto instituted a program of monitoring 4 those people tnat had been exposed to PAB7 A Yes# sir. 5 6 Q And indeedsome of those people wereincluded 7 in the Nitro Morbidity Study? S A Yes# sir. 0 And some of the findings withrespect to them 10 were set out here in Exhibit 9 -- what is it -- 912? 11 A 912. 12 0 912. Is tnat right# sir? 13 A Yes# sir e 14 0 Now, Mr. Carr suggested tw you# did he not 13 well# first of all# when you look at the people that were 16 exposed here# those across the top# those words across the 17 top refer to exposur'e to 2#4#5-T; correct? IS A Yes# sir. 19 Q So that the column on the left are those who 20 were not exposed to 2#4#5-'? and the middle column is those 21 who were# ana the right-hand column is those with question- aole exposure t* 2#4#5-T; correct? mm 23 A Yes, sir. 24 y And then those who had been exposed to para- I aminobiphenyl are distributed among those three columns; correct? 3 A Yes# sir. 4 g And those among the persons that had exposure 5 to para-aminooiphenyl who had bladder tumors, or bladder 6 cancer# those are also distributed among those columns; 7 correct? 8 A Yes# sir. 9 Q So that -- and these are by history rather than 10 examination# according to this document? 11 A It had to oe by history. 12 j I'm sorry? 13 A It had to oe by history and not oy examination. 0 14 g All right. So what is the difference between a 15 bladder tumor and a oladder cancer? 16 a A tumor is any cancer or both growths that can 17 happen anyplace in the body, and the difference between a 18 tumor and a cancer is the tumor is a benign tumor by this, 19 definition# and because they're separated the bladder- cancer 20 is one that's a malignancy. One is a growth and the other 21 one is a growth that's a malignancy. n w rt'ndc this wa3 was differentiating between the mm 23 two? 24 A Yes. t i 1 Q Those whicn were benign tumors and those which were malignant cancers? 3 A Yea, sir. 4 j All right. Mow, Mr. Carr, when questioning 5 you, showed you these percent numbers* Go you remember 6 that, sir? 7 A Yes, sir. 8 Q And he said that the .61 percent was less than 9 one percent; correct? 10 A Yes, sir. 11 w On the bladder tumors and bladder cancers? 12 A Yes, sir. 13 j Sut the 3.43 percent for the bladder tumors was 14 many times larger than the .51. I think he said it was 15 seven times larger; correct? 16 A Six times larger. 17 j And that would be accurate if you looked just 18 at those percentage numbers, wouldn't it, sir? 19 A Yes, sir. 20 w And he relied on those numbers to lead to the 21 conclusion that these who were exposed had more bladder 22 tumors,, those were exposed to 2,4,5-T and para-aminobiphenyl 23 had more blaoder tumors than those who were exposed only to 24 paxa-aminobipheny1 and not the 2,4,5-T; correct? * A Yes, sir 2 Q But as a matter of fact, Doctor, those percentage 3 that are being locked at there are the percentages that 4 those numbers bear to the little 'n' up here* isn't that 5 right? 6 A Yes, sir 7 w Okay, Now that little 'n* number up there a refers to the total number of people exposed, or the total 9 number of people unexposed in the Suskind Morbity Study, 10 doesn't it? II A Yes, sir 12 2 Doesn't refer to the number of people exposed 13 to cara-aminobiphenyl, does -it? 14 A No, sir. 15 j So those numbers are not percentages of 8, or 16 71, or 16, tney're percentages of 163, 204 and 51? 17 A Yes, sir IS Q Aren't they? 19 A Yes, sir 20 Q So that if you want to look, sir, at how many 21 people actually get bladder tumors or bladder cancer, of 22 those who were exposed to para-aminobiphenyl, as compared 23 to those that ware exposed of those which ones also had 24 exposure to 2,4,5-T, you just look at the numbers that are i at the top or cnose columns, don't you? I A Ves, sir. m Q So tnat of those who were not exposed to 2,4,5-T 3 eignt had para-aiiunaoiphenyl exposure; right? 4 A yes, sir. J 6 Q And o those, two had either a tumor or cancer; correct? 7 A yes, sir. 8 0 So tnat would be two out of eight, or 23 percenti 9 10 correct,sir? A Yes, sir. 11 12 g So that the rate of those who were exposed to both para-aoinooiphenyl and 2,4,5-T that got one of these 13 M cancers or tumors was 23 percent? Excuse me, I did that, 15 wrong, didn't I? 16 A Yes, you did. 17 It's the other way around. The rata of those 18 wno were exposed only to para-aminebiphenyl and not exposed 19 to 2,4,5-T is 23 percent; correct? 20 A Yes, sir. 21 U '.ell, let's look at the next column. Those n who were exposed to both is 71; correct? mm 23 A Yes, sir. 24 0 And of tnose 9 people had eicner a tumor or a 1 ciActr of tile bladder? correct? I 1 m A iea# sir. r 3 g And it's 9 out of 71# or about twelve and a 4 half percent? 5 A That's right. 6 Q Correct? 7 A Yes# sir 3 Q So that re is less bladder cancer among the 9 people who were also exposed to 2#4#5-T than there is among 10 the people wno are only exposed to para-aminobiphenyl; corre 11 A Yes# sir. 12 w and# indeed# those with questionable exposure 13 are two out or 16# one out of 8# about twelve and a half 14 percent again? 15 a Yes# sir. 16 g And there-as well# there's less people who 17 have questionaole exposure to 2#4#5-T and para-aminobiphenyl 13 exposure than those who have exposure to para-aminobiphenyl 19 alone? 20 A Yes# sir. 21 g Correct? As a matter of fact# thisdocument 22 proves just tne opposite of what Mr. Carr asked you about - 23 doesn't it# sir? !4 A Yes# sir. II Q If tnere were any conclusion to be raised from this table along, it would be -- MR CARR: Tour Honor, I object to that 1 \by Hr. Heineman) -- it would be that dioxin protects you. THE COURT: An objection is being made, I believe MR. CARR: I do object to the leading cross examination form of the question. X ask that the witness make conclusions rather than Counsel. THE COURT: Objection is sustained#- nR. HEINEMAN: This would be a good time, Judge, if you want to break for lunch THE COURT: Fine. I believe we're breaking for the day k'iR* HEINEMAN: X beg your pardon? THE COURT: `This is it for the day, I believe. HR. HEINEMAN: Oh, that's right. Okay. THE COURT: Okay. Ladies and gentlemen, we will break for the day at this point in time, as I told you before we were going to do. We'll start again tomorrow morning at 9:00. I would remind you chat you're not to read, listen to or watch anything about this case, in particular, or subject matter in general in any of the medial. We'll see you comcrrow morning at nine. Thank you for your 73 I r attention ani ration. Court ia adjourned. 3 4 5 6 7 S 9 10 ' 11 12 13 14 15 16 17 IS 19 20 21 tCourt adjourned.) 23 24 74 i .I C\ ' 3 4 5 6 7 8 9 10 * 11 12 l` 13 . 14 15 16 17 13 19 20 21 state o ? = TWENTIETH JUDICIAL CIRCUIT COUNT* 0? ST. CLAIR } SS. ) - I, Kathleen Watson Brunsraann, one of the Official Court Reporters, do hereby certify that the foregoing transcript is a true and correct copy of said transcript. DATED: July 29, 1985. Kathleen Watson Brunsoann, CSR, R9R Official Court Reporter I 23 L' 73 C1 n 3 4 5 6 7 3 9 10 - 11 12 13 14 15 16 17 18 19 20 21 n 23 STATS OF ILLINOIS TJfSNTISTH JUDICIAL CIRCUIT COUNTY OF ST* CLAIR J j SS ) I X, RiCHARD GOLDENHERSH, Circuit Judge, do heresy certify-that the foregoing transcript is a true and correct copy of said transcript* DATEDi July 23, 1985. 76