Document EQ5y5d888ZZOZdGRbwo6v20

COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT CIVIL ACTION NO. 86-CI-1566 DIVISION NO. II COMMONWEALTH OF KENTUCKY, NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET, Plaintiff, vs. ROCKWELL INTERNATIONAL CORP., TIM SHOOK and, RICHARD L. MONTGOMERY, Defendants. ) ) ) ) ) ) ) ) ) Deposition of Witness, THOMAS M. BISTLINE Taken on Behalf of the Plaintiffs July 23, 1993 Reported by Kimberly A. Anderson RPR, CSR, CCR of REGISTERED PROFESSIONAL REPORTERS -- NOTARIES PUBLIC P.O. BOX 16104 ST. LOUIS. MISSOURI 63105 314/230-3366 WATER PCB-SD0000057000 COMMONWEALTH OF KENTUCKY LOGAN CIRCUIT COURT NO. 93-CI-00158 DONALD S. HOUCHENS et al., Plaintiffs vs ROCKWELL INTERNATIONAL CORP., et al Defendants. ) ) ) ) i Deposition of Witness, THOMAS M. BISTLINE Taken on Behalf of the Plaintiffs July 23, 1993 Reported by Kimberly A. Anderson RPR, CSR, CCR of REGISTERED PROFESSIONAL REPORTERS -- NOTARIES PUBLIC P.O. BOX 16104 ST. LOUIS, MISSOURI 63105 314/230-3366 WATER PCB-SD0000057001 COMMONWEALTH OF KENTUCKY LOGAN CIRCUIT COURT NO. 93-CI-00159 ROGER BARNES, et ux Plaintiffs vs ROCKWELL INTERNATIONAL CORP., et al Defendants. ) ) ) ) Deposition of Witness, THOMAS M. BISTLINE Taken on Behalf of the Plaintiffs July 23, 1993 Reported by Kimberly A. Anderson RPR, CSR, CCR of REGISTERED PROFESSIONAL REPORTERS -- NOTARIES PUBLIC P.O. BOX 16104 ST. LOUIS. MISSOURI 63105 314/230-3366 WATER PCB-SD0000057002 INDEX Direct Examination by Mr. Bolzle ......................... Direct Examination by Mr. Cunningham ............. Redirect Examination by Mr. Bolzle ................... Cross-Examination by Mr. Goebel ............................ Further Redirect Examination ..................................... by Mr. Bolzle .................................................................................. Recross-Examination by Mr. Goebel ...................... Page Page Page Page Page Page 3 52 63 64 88 99 EXHIBIT INDEX PLAINTIFF'S EXHIBIT NUMBER PAGE MARKED 1 - Subpoena Duces Tecum 8 2 - Amended Notice to Take Deposition 8 3 - Plaintiffs' Notice to Take Deposition(s) Upon Oral Examination of Monsanto Company's Designee(s) 8 4 - Notice to Take Deposition 8 5 - Letter dated 2/4/88 11 6 - Letter dated 3/14/88 with attachments 11 6-A - Multi-page Document entitled "Human Health Effects of Polychlorinated Biphenyls (PCBs) and Polybrominated Biphenyls (PBBs)" 17 13 7 - Sales Summary 1954-1977 13 8 - Multi-documents regarding Pydraul 13 9 - Copy of a Label used by Monsanto 101 10 - Copy of Rubber Stamp impression used by Monsanto 101 DEFENDANTS' EXHIBIT A - Multi-page document (also marked as Exhibit 14) PAGE MARKED 68 A & E Reporting (314) 230-3366 0 WATER PCB-SD0000057003 1 COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT 2 CIVIL ACTION NO. 86-CI-1566 DIVISION NO. II 3 COMMONWEALTH OF ) KENTUCKY, NATURAL ) 4 RESOURCES AND ) ENVIRONMENTAL ) 5 PROTECTION CABINET, ) ) 6 Plaintiff, ) 7 vs. ) ) ) 8 ROCKWELL INTERNATIONAL ) CORPORATION, TIM SHOOK ) 9 and RICHARD L. ) MONTGOMERY, ) 10 Defendant. ) 11 DEPOSITION OF Thomas M. Bistline taken 12 pursuant to Notice, being produced, sworn and examined 13 on the 23rd day of July, 1993, between the hours of 14 eight o'clock in the forenoon and six o'clock in the 15 afternoon of that day, at the Marriott-Airport Hotel, 16 1-70 at Lambert Airport, St. Louis, Missouri, before 17 KIMBERLY A. ANDERSON, a Certified Court Reporter, 18 Registered Professional Reporter and Notary Public 19 within and for the County of St. Louis, State of 20 Missouri, in a certain cause now pending in the 21 Franklin Circuit Court, Commonwealth of Kentucky, 22 between Commonwealth of Kentucky, Natural Resources 23 and Environmental Protection Cabinet, Plaintiff, and 24 Rockwell International Corporation, Tim Shook and 25 Richard L. Montgomery, Defendants. A & E Reporting (314) 230-3366 2 WATER PCB-SD0000057004 1 APPEARANCES 2 Gregory A. Bolzle Attorney at Law 3 Woodward, Hobson & Fulton 2500 First National Tower 4 Louisville, Kentucky 40202 5 On Behalf of Tim Shook and Richard L. Montgomery 6 J. Anthony Goebel Attorney at Law 7 Wyatt, Tarrant & Combs Citizens Plaza 8 Louisville, Kentucky 40202 On Behalf of Rockwell International Corp. 9 Also present: 10 Charles L. Cunningham, Jr. 11 Attorney at Law 304 West Liberty St. 12 Suite 200, Morrissey Building Louisville, Kentucky 40202 13 14 15 16 17 18 19 20 21 22 23 24 25 A & E Reporting (314) 230-3366 3 WATER PCB-SD0000057005 1 Stipulation 2. It is hereby stipulated and agreed by and between 3 the parties herein that the signature of the witness, 4 Thomas M. Bistline, is hereby waived to his 5 deposition, and that said deposition of said witness 6 shall be of the same force and effect as though said 7 witness had read and signed said deposition. 8 9 THOMAS M. BISTLINE 10 being produced, sworn, and examined on behalf of the 11 Plaintiffs, deposeth and saith: 12 DIRECT EXAMINATION 13 BY MR, BOLZLE; 14 Q. Could you state your name for the record, 15 please? 16 A. My name is Thomas M. Bistline, 17 B-i-s-t-l-i-n-e. 18 Q. How old are you, sir? 19 A. I'm 44. 20 Q. And what's your occupation? 21 A. I'm an attorney and employed by Monsanto 22 Company as Assistant General Counsel, litigation. 23 Q. Do you hold any offices with the company? 24 A. I'm not an officer of the company, no. 25 Q. How long have you been with the company? A & E Reporting (314) 230-3366 4 WATER PCB-SD0000057006 1 A. Since February of 1982. 2 - Q. And what are the responsibilities of your 3 position as Assistant General Counsel of litigation 4 for Monsanto? 5 A. My responsibilities chiefly consist in 6 day-to-day management of various litigated matters in 7 which Monsanto is involved. 8 I've also got some administrative internal 9 Monsanto responsibilities relating to the law 10 department. 11 Q. What is the business of Monsanto Company? 12 A. Monsanto is a diversified manufacturer of 13 chemicals, pharmaceuticals, agricultural products, and 14 I think we still have some separation equipment 15 manufacturing. 16 Q. At some point in its manufacturing history did 17 Monsanto manufacture a product called Pydraul? That's 18 p-y-d-r-a-u-1. 19 A. My information is yes, it did. 20 Q. What is Pydraul? 21 A. It's a -- was a Monsanto trade name for a 22 hydraulic fluid. It's a family of products. 23 Q. What was it used for, do you remember? 24 A. Generally, it's a hydraulic fluid for whatever 25 purposes hydraulic fluids would be used for. A & E Reporting (314) 230-3366 5 WATER PCB-SD0000057007 1 Q. Did Pydraul contain PCBs? 2 MR. GOEBEL: I'm going to object to any 3 additional questions about the chemical makeup of 4 Pydraul until you lay a foundation with this witness. 5 Q. (By Mr. Bolzle) Did Pydraul contain PCBs? 6 A. Some Pydrauls did according to the information 7 I have available to me. 8 Q. What is that information, sir? 9 A. I have looked at documents in the possession 10 of Monsanto Company, and spoken to employees of 11 Monsanto, present and former exmployees. 12 Q. Is part of the litigation for which you are 13 responsible in terms of day-to-day management 14 litigation involving PCBs? 15 A. It is. 16 Q. And as part of that day-to-day management 17 responsibility and that litigation, is it part of your 18 responsibility and have you, as a result of that, come 19 by knowledge of in what products Monsanto used PCBs? 20 A. I'm aware of some of that, yes, and basically, 21 I know where to find the information if I need it. 22 Q. Do you know why PCBs were put in Pydraul? 23 A. I know what I have been told. 24 Q. And what is that, sir? 25 MR. GOEBEL: Objection, calls for hearsay. He A & E Reporting (314) 230-3366 6 WATER PCB-SD0000057008 1 has no personal knowledge. 2 - Q. (By Mr. Bolzle) Go ahead, sir. 3 A. PCBs were employed specifically in hydraulic 4 fluids; is that your question? 5 Q. Yes. 6 A. Because of their thermal stability and their 7 resistance to degradation, fire protection, fire 8 safety, I guess, would be the best way to put it. 9 Q. Is it your understanding that that information 10 is in fact set forth in some of the documentation 11 you've brought with you here today? 12 MR. GOEBEL: I object to the form. 13 THE WITNESS: Yes, it is. 14 Q. (By Mr. Bolzle) When did Monsanto begin 15 manufacturing Pydraul? 16 A. I don't know the answer to that question. 17 Q. Do you know when it stopped? 18 A. Pydrauls containing PCBs? 19 Q. Yes, sir. 20 A. In 1971. 21 Q. Before I get into anymore questioning, let me 22 go ahead and establish for the record some things. 23 Now sir, you are here pursuant to Notice of Deposition 24 as well as a Subpoena Duces Tecum; is that not 25 correct? A & E Reporting (314) 230-3366 7 WATER PCB-SD0000057009 1 A. That's correct. 2 MR. BOLZLE: And for that reason, Kim, I would 3 like to have marked the subpoena as well as the 4 notices requiring Mr. Bistline to attend the 5 deposition today. And I think those would form 6 Exhibit's 1 through 4 to the deposition. 7 (Plaintiffs' Exhibit Numbers 1, 2, 3 and 4 8 marked.) 9 Q. (By Mr. Bolzle) Okay. Mr. Bistline, 10 referring, specifically, to Exhibit 1 to your 11 deposition, which is the Subpoena Duces Tecum with 12 which you were served in this case, it asks that you 13 produce any and all correnspondence between Monsanto 14 Company and Rockwell International Company concerning 15 the composition, proper handling, use, disposal, and 16 potential hazards and/or dangers of Pydraul, Aroclor, 17 a-r-o-c-l-o-r, and/or polychlorinated biphenyls, PCBs, 18 specifically including but not limited to agreements 19 and product labels and warnings. Have you brought 20 documentation responsive to that question with you 21 here today? 22 A. Yes, I have. 23 Q. And I believe before we began the deposition 24 you actually tendered those documents to me; did you 25 not? A & E Reporting (314) 230-3366 8 WATER PCB-SD0000057010 1 A. Yes, I did. Part of them, in any event. Part 2 of them X believe you were already familiar with. 3 Q. Who is the custodian of the documentation 4 you've brought with you today? 5 A. I'm the custodian of those records. 6 Q. Of all of the records that you have here? 7 A. Yes. 8 MR. GOEBEL: Just for the record, Greg, the 9 subpoena asks for all correspondence between Monsanto 10 and Rockwell, and some of these documents, it's my 11 understanding, that he brought here today would not 12 have been correnspondence to Rockwell International. 13 MR. BOLZLE: Such as? 14 MR. GOEBEL: Well, I think you identified in 15 Numbers 140 to 266 that those were pulled out of files 16 that were not actually in any file designated a 17 Rockwell file. 18 MR. BOLZLE: Well, as I understand, these are 19 product labels that would have been affixed to product 20 packages sent to Rockwell, so that in that sense, I 21 agree with Mr. Bistline's interpretation of the 22 production request and production of these documents. 23 MR. GOEBEL: He hasn't said on the record that 24 those were documents that were sent to Rockwell 25 International. A & E Reporting (314) 230-3366 9 WATER PCB-SD0000057011 1 MR. BOLZLE: Well, we'll find out about that. 2 MR. GOEBEL: Yeah, I think that's what we need 3 to do because what you've represented on the record 4 and what the subpoena asks for are two different 5 things. 6 Q. (By Mr. Bolzle) I think you've said that 7 you're the custodian of the documents you've brought 8 here today. 9 A. That is correct. 10 Q. And where are the documents you've brought 11 here with you today kept? 12 A. They're kept at Monsanto's world headquarters 13 in St. Louis. 14 Q. Are they kept in any particular office or 15 location? 16 A. Yes. 17 Q. What office is that, sir? 18 A. It is the litigation groups document archive 19 in N, as in Ned, Building. 20 Q. And under whose supervision are those 21 documents kept and maintained? 22 A. Mine. 23 Q. Do you know when Monsanto sold Pydraul to 24 Rockwell for use at its facility in Russellville, 25 Kentucky? A & E Reporting (314) 230-3366 10 WATER PCB-SD0000057012 1 A. I don't know from my recollection, no. 2 . Q. Why don't we use the stack of documents you 3 have because I think those are all - 4 A. This, I believe -- we're off the record. 5 (Discussion off the record.) 6 (Plaintiffs' Exhibit Number 5 marked.) 7 Q. (By Mr. Bolzle) Mr. Bistline, the documents 8 that you have brought with you today include a letter 9 dated March 14, 1988, from Mr. Richard Duesenberg, 10 Senior Vice President and General Counsel and 11 Secretary of Monsanto Corporation, to Charles H. 12 Harff, H-a-r-f-f, Senior Vice President and General 13 Counsel and Secretary of Rockwell International 14 Corporation, together with exhibits or items that were 15 attached to Mr. Duesenberg's letter. If you would 16 check that and make sure that I've accurately 17 described that on the record, sir. 18 A. That's correct. 19 MR. BOLZLE: Can we mark this, Kim, Exhibit 6? 20 (Plaintiffs' Exhibit Number 6 marked.) 21 Q. (By Mr. Bolzle) Let me back up just a little 22 bit. Mr. Bistline, let me show you what's been marked 23 Plaintiffs' Exhibit 5 to your deposition; can you 24 identify that for the record, please? 25 A. This is a copy of a letter which was addressed A & E Reporting (314) 230-3366 11 WATER PCB-SD0000057013 1 to and received by Mr. Richard Duesenberg. There's a 2 signature which purports to be that of Charles Harff. 3 The letter is dated February 4, 1988. 4 Q. And just for purposes of the record, if you 5 would identify what has been marked Plaintiffs' 6 Exhibit Number 6. 7 A. Exhibit 6 is an exhibit which contains a 8 letter dated March 14, 1988, addressed to Charles 9 Harff, Senior Vice President, General Counsel and 10 Secretary of Rockwell International Corporation, which 11 is signed by Richard W. Duesenberg, Senior Vice 12 President General Counsel and Secretary of Monsanto 13 Company. And there are exhibits or attachments to the 14 letter bearing numbers ROCW 00001 through 109. 15 Q. What do those numbers refer to? 16 A. These numbers were placed on the attachments 17 to Mr. Duesenberg's letter by members of my staff at 18 my direction and each page that was attached to Mr. 19 Duesenberg's letter bears a separate number. We put 20 them on there so we could identify them. 21 Q. Is there any litigation between Rockwell and 22 Monsanto Corporation at present concerning Monsanto's 23 manufacture and sale of Pydraul to Rockwell? 24 MR. GOEBEL: Objection on the basis of 25 relevancy. A & E Reporting (314) 230-3366 12 WATER PCB-SD0000057014 1 THE WITNESS: There's none that I'm aware of. 2 Q. (By Mr. Bolzle) Is there any or has there 3 been any indemnification agreement executed by 4 Rockwell on behalf of Monsanto Corporation in -- as a 5 result of its use or purchase of Pydraul, to your 6 knowledge? 7 MR. GOEBEL: Objection, relevancy. 8 THE WITNESS: No. 9 Q. (By Mr. Bolzle) At the present time, is there 10 any -- are there any proceedings between Rockwell and 11 Monsanto concerning the Russellville litigation or the 12 Russellville PCB contamination? 13 MR. GOEBEL: Same objection. 14 THE WITNESS: None that I'm aware of. 15 Q. (By Mr. Bolzle) Is there any agreement 16 between Rockwell and Monsanto Company concerning 17 Monsanto's involvement in this litigation or your 18 deposition in this litigation? 19 MR. GOEBEL: Same objection. 20 THE WITNESS: No. 21 MR. BOLZLE) Kim, let's mark this Plaintiffs' 22 Exhibit 7. 23 (Plaintiffs' Exhibit Number 7 and 8 marked.) 24 Q. (By Mr. Bolzle) Mr. Bistline, let me hand you 25 What's been marked Plaintiffs' Exhibit 7 to your A & E Reporting (314) 230-3366 13 WATER PCB-SD0000057015 1 deposition, and if you would, please, identify those 2 documents for the record? 3 A. Exhibit 7 is a multi-page document bearing 4 numbers ROCW 00110 through 00139. The page marked 110 5 is a document which was prepared by members of my 6 staff at my direction and is in fact a summary of the 7 information contained on pages 111 through 139. 8 Q. What does that information included in 9 Plaintiffs' Exhibit 7 show? 10 A. This is a summary of Monsanto's records of the 11 sales of PCB-containing products by Monsanto to 12 Rockwell Manufacturing at Russellville, Kentucky. 13 Q. And let me show you Plaintiffs' Exhibit Number 14 8, have you identify that for the record, please. 15 A. Exhibit 8 is again a collection of documents 16 from files in my custody numbered ROCW 00140 through 17 266. These are labels, that's pages 140 through 147, 18 and technical bulletins, pages 148 through 266, 19 relating to the products Pydraul F-9, Pydraul 312, and 20 Pydraul 312A. 21 Q. Let me show you Plaintiffs' Exhibit 5 and what 22 I want to do now is walk back through these documents 23 and talk to you a little bit about each of them. Is 24 that document kept and maintained in the regular 25 course of Monsanto's business? A & E Reporting (314) 230-3366 14 WATER PCB-SD0000057016 1 A. Well, this is a document that we received. 2 It's not a Monsanto document but it's one that is 3 contained in a file that I maintain. 4 Q. Okay. And is that file kept and maintained 5 under your supervision? 6 A. It is, yes. 7 Q. And is that file kept and maintained as a 8 regular course of Monsanto Company's business? 9 A. Well, to the extent litigation-related 10 activities would be considered in the regular course 11 of business, the answer is yeah. 12 Q. Is Exhibit 5 a true and accurate copy of the 13 letter you have in your files? 14 A. Yes, it is. 15 Q. Let me refer you, Mr. Bistline, just to a 16 statement in the middle of the first paragraph of that 17 letter. And that is the statement that Pydrauls, 18 after the parenthesis PCBs, that Pydrauls "were sold 19 by Monsanto to Rockwell between 1956 and 1972 for use 20 in its aluminum die-casting facility in Russellville, 21 Kentucky." Do you have any information that 22 particular statement is inaccurate? 23 A. The only information that I have relating to 24 that statement, Mr. Bolzle, would be reflected on 25 Exhibit -- what was it -- 7 which is the sales summary A & E Reporting (314) 230-3366 15 WATER PCB-SD0000057017 1 and that Exhibit 7 would contain the information 2 available to Monsanto from its records as to when 3 sales of products containing PCBs were made to the 4 Russellville Rockwell plant. 5 Q. Okay, sir. Let me show you Plaintiffs' 6 Exhibit Number 6 which you've already identified. 7 A. Yes. 8 Q. First of all, are the documents included in 9 Plaintiffs' Exhibit Number 6 true and correct copies 10 of the documents that appear in the files that are 11 maintained under your supervision? 12 A. Yes, they are. 13 Q. And are the documents contained in Plaintiffs' 14 Exhibit Number 6 business records of the Monsanto 15 Company? 16 A. Just let me -- 17 Q. Sure. 18 (Witness reviews exhibit.) 19 A. With the exception of a document which is a 20 copy of an article appearing in the scientific 21 literature, document 00091 through 103, yes. This is 22 a scientific article. I don't know whether that would 23 constitute a business record or not. 24 Q. Why don't we pull that out and just get an 25 exhibit number to that just so we're clear on the A & E Reporting (314) 230-3366 16 WATER PCB-SD0000057018 1 record. 2. MR. GOEBEL: It's already a part of the 3 exhibit. 4 (Discussion off the record.) 5 (Plaintiffs' Exhibit Number 6-A marked.) 6 THE WITNESS: We should just note that there 7 are attachments -- there are attachments to a couple 8 of the letters that are included within Exhibit 6 that 9 are reprints of magazine articles or excerpts from the 10 Federal Register, which, again, I don't know whether 11 under Kentucky rules they would be considered business 12 records or not. 13 Q. (By Mr. Bolzle) Mr. Bistline, let me show you 14 what we've marked Plaintiffs' Exhibit 6-A to your 15 deposition. 16 A. Yes. 17 Q. Now, can you identify that for the record, 18 please? 19 A. This is a copy of an article which appeared in 20 the Annual Review of Pharmacology and Toxicology 21 authored by Renate, R-e-n-a-t-e, D. Kimbrough, 22 K-i-m-b-r-o-u-g-h, who was at that time an official of 23 the Centers for Disease Control. 24 Q. What's the name of that article? 25 A. The name of the article is Human Health A & E Reporting (314) 230-3366 17 WATER PCB-SD0000057019 1 Effects of Polychlorinated Biphenyls (PCBs) and 2 Polybrominated Biphenyls (PBBs). 3 Q. Now, as I understand your testimony before 4 this Exhibit 6-A was marked, although this was an 5 attachment that was included with Mr. Duesenberg's 6 letter which has been marked Exhibit 6, Exhibit 6-A is 7 not a document that was produced or written by 8 Monsanto Company. 9 A. That's correct. 10 Q. And it is not a business record of Monsanto 11 Company. 12 A. Well, that's kind of a legal conclusion. I'll 13 let you guys involved in this case figure out for your 14 own purposes but this is not a Monsanto business 15 record, correct. 16 Q. Okay. That's what I was getting at. Okay. 17 Turning to Exhibit 6, with the understanding 18 that the attachments in Exhibit 6 include documents 19 not generated by Monsanto, and with the exclusion of 20 Exhibit 6-A which is not a document generated by 21 Monsanto, let me ask you the following questions: Are 22 the documents as I've just described them, in Exhibit 23 6, kept in the regular course of Monsanto's business? 24 A. Yes, they are. 25 Q. And Monsanto's business is a regularly A & E Reporting (314) 230-3366 18 WATER PCB-SD0000057020 1 conducted activity; is it not, sir? 2 . A. Yes, sir, it is. 3 Q. The documents included in Plaintiffs' Exhibit 4 6, were these documents made at or near the time of 5 the events discussed therein? 6 A. To the best of my knowledge and information, 7 yes. 8 Q. And is it a regular practice of Monsanto 9 Company, both at the time these documents were 10 generated and even until today, to maintain these 11 records as part of its regularly conducted activity? 12 A. Yes. 13 Q. All right, sir. Is Mr. Duesenberg's letter, 14 which is the first document on top of Plaintiffs' 15 Exhibit 6, a response to Mr. Harff's letter which has 16 been marked Plaintiffs' Exhibit 5? 17 A. Yes, sir, it is. 18 Q. And what is discussed in Mr. Duesenberg's 19 letter to Mr. Harff? 20 MR. GOEBEL: I want to object and ask a 21 preliminary question of the witness. 22 Is there anything you can tell us about this 23 letter other than just read what's there? I mean you 24 did not author the letter. 25 THE WITNESS: Yes, I did. A & E Reporting (314) 230-3366 19 WATER PCB-SD0000057021 1 MR. GOEBEL: You did author it? 2. THE WITNESS: Yes. 3 MR. GOEBEL: I'll let him answer that 4 question. 5 MR. BOLZLE: Thanks. 6 MR. GOEBEL: Go ahead. 7 THE WITNESS: In general, Mr. Bolzle, what's 8 discussed in this letter is a point by point response 9 to the matters set forth in Mr. Harff's letter to Mr. 10 Duesenberg. 11 Q. (By Mr. Bolzle) Just so it's clear, who 12 authored the text of the letter signed by Mr. 13 Duesenberg to Mr. Harff? 14 A. I was responsible for drafting the response. 15 Mr. Duesenberg made some minor changes in it and 16 signed the letter. 17 Q. Who asked you to prepare that response? 18 A. Mr. Duesenberg. 19 Q. Were you also involved in the collection of 20 the exhibits that were attached to Mr. Duesenberg's 21 letter? 22 A. Yes, I was. 23 Q. How so? 24 A. I directed a member of my staff at Monsanto to 25 obtain from Monsanto's files the documents that are A & E Reporting (314) 230-3366 20 WATER PCB-SD0000057022 1 attached here, the various letters or items of 2 correspondence between Monsanto and Rockwell and the 3 other attachments here. 4 Q. Now Mr. Harff's letter of February 4, 1988, 5 which has been marked as Plaintiffs' Exhibit 5 deals 6 specifically with problems arising as a result of PCB 7 use in a plant in Russellville, Kentucky; does it not? 8 A. It does. 9 Q. And the March 14, 1988 letter which you 10 authored on behalf of Mr. Duesenberg deals 11 specifically with refuting the claims that Mr. Harff's 12 letter as they related only to the Russellville 13 facility; is that correct? 14 A. Well, they encompass the Russellville facility 15 but I believe it's somewhat broader than that. 16 Q. My question for you is whether you know, Mr. 17 Bistline, if Monsanto has received other letters 18 similar to Plaintiffs' Exhibit 5, Mr. Harff's letter, 19 making similar allegations about other Rockwell 20 facilities in other places? 21 A. To my knowledge we have not received letters 22 similar to Exhibit 5 from Rockwell. 23 Q. Concerning other Rockwell facilities? 24 A. That's correct. 25 Q. Have you participated in preparing, drafting, A & E Reporting (314) 230-3366 21 WATER PCB-SD0000057023 1 authoring any letters or correspondence to Rockwell 2 similar to Mr. Duesenberg's March 14, 1988 letter 3 which concerned other Rockwell facilities than the 4 Russellville site? 5 A. No, sir. 6 Q. Now, when Mr. Duesenberg asked you to prepare 7 the letter that's marked Plaintiffs' Exhibit Number 6, 8 at that time did you have personal knowledge of the 9 factual bases for the statements you set forth in that 10 letter? 11 A. I had general knowledge of the kinds of 12 correspondence that might exist in Monsanto's files 13 relating to letters that were sent to Pydraul 14 customers. I did not know at that time until I had my 15 staff do the document collection, whether letters had 16 been sent to Rockwell. That I discovered after we 17 conducted a search of our files. 18 Q. You were anticipating my next question which 19 is going to be what investigation research did you 2 0 perform in order to prepare the document that's been 21 marked Plaintiffs' Exhibit 6? 22 A. I asked a member of my staff to review 23 Monsanto's files and to provide me with a copy of all 24 correnspondence relating to PCBs, Pydrauls, or really 25 any correspondence with Rockwell International or any A & E Reporting (314) 230-3366 22 WATER PCB-SD0000057024 1 other Rockwell entity, really, relating to PCBs. 2 Q. And did you review that information that was 3 collected for you by your staff before drafting the 4 letter marked Plaintiffs' Exhibit 6? 5 A. Yes, sir, I did. 6 Q. Are the statements set forth in that letter 7 based on the information that was collected under your 8 supervision? 9 MR. GOEBEL: At this time I want to object to 10 any more questions about what's contained in this 11 letter. The letter speaks for itself. It's based on 12 documents apparently that are attached to the letter. 13 And just for purpose of the record, I'm going to go 14 ahead and make that objection. 15 Q. (By Mr. Bolzle) Do you remember my question? 16 A. If you would repeat it again I would 17 appreciate it. 18 Q. I think what I asked you was whether the 19 statements set forth in Plaintiffs' Exhibit 6 were 20 based upon your review of the documentation collected 21 for you by your staff? 22 A. The statements in the letter are based upon 23 all of the documents that are attached to the letter. 24 Some of that documentation, specifically the Kimbrough 25 article, Exhibit 6-A, and the document attached which A & E Reporting (314) 230-3366 23 WATER PCB-SD0000057025 1 is entitled, Polychlorinated Biphenyls, PCB's, A 2 Report on Uses, Environmental Health Effects and 3 Disposal, which is pages 1 through 33, were not 4 specifically collected by my staff for purposes of 5 this letter. These were documents that I had in my 6 possession already. 7 Q. All right, sir. This deposition is being 8 taken for purposes of a trial that is scheduled to 9 take place on October 4th in Franklin Circuit Court in 10 Kentucky. For that reason I want to review some of 11 these letters with you as well as some of the 12 attachments to this letter. Referring specifically to 13 Plaintiffs' Exhibit 6, if you could take us through 14 that letter and, point by point, specifically as to 15 points one and two beginning on page 2 of that letter, 16 take us through your statements which you prepared in 17 order to refute Mr. Harff's suggestion that Monsanto 18 had failed to warn Rockwell about the hazards of PCB. 19 MR. GOEBEL: I also want to interpose an 20 objection that the question calls for legal conclusion 21 and also this letter postdates the date on which 22 Rockwell claims it received or had notice of PCBs in 23 the environment and is in response to threatened 24 litigation and it's really a position letter of 25 Monsanto with respect to that threatened litigation. A & E Reporting (314) 230-3366 24 WATER PCB-SD0000057026 1 MR. BOLZLE: I understand. 2 . Q. (By Mr. Bolzle) Go ahead, sir. 3 A. Actually, I think that the letter is pretty 4 self-explanatory if you look at it. What I did was 5 attach the report that I referred to earlier, pages 1 6 through 33, which gives an overview of Monsanto's 7 actions with respect to PCBs as environmental issues 8 emerged in the late '60s and early '70s. That 9 document, it's a general document and one that states 10 Monsanto Company's position with respect to PCBs. And 11 I then attached documents which reflected actual 12 correspondence between Monsanto and Rockwell to show 13 how Monsanto's communication with Rockwell 14 corresponded with the positions set forth in the 15 general report. So that's really point one. 16 Then in point two, it's just a reference to 17 federal regulations and Federal Register citations 18 relating to regulations dealing with PCBs in hydraulic 19 fluid, which have been part of the public record for 20 many years. That's point two. 21 Q. In the second paragraph of page 2 let me read 22 a section and correct me if I read it incorrectly. 23 Beginning at the top of that paragraph it says, 24 "Specifically as to Rockwell, beginning as early as 25 1960, Monsanto provided a detailed response to a A & E Reporting (314) 230-3366 25 WATER PCB-SD0000057027 1 request for information relating to the toxicity and 2 safe handling of our hydraulic fluids. In addition, 3 these products were clearly labeled and your technical 4 personnel were provided with product information 5 setting forth relevant safe-handling instructions. 6 Thereafter, beginning at least in 1970, Monsanto sent 7 no less than four written notices to the Russellville 8 plant specifically calling attention to environmental 9 concerns relating to PCBs and the consequent need for 10 responsible disposal practices. In 1973, a written 11 notice directed to the Russellville plant advised 12 Rockwell of the high temperature incineration service 13 provided by Monsanto for the disposal of 14 PCB-containing liquids." Did I read that section 15 correctly? 16 MR. GOEBEL: Would you give me an objection, 17 same as I made on the last objection, so I don't have 18 to keep repeating? 19 MR. BOLZLE: Sure. Yeah. 20 THE WITNESS: Yes, that's an accurate reading 21 of what the letter says. 22 Q. (By Mr. Bolzle) Tell me about the Monsanto's 23 high temperature incineration service. 24 A. Well, I believe that the reference would be to 25 an attachment here in the materials attached to A & E Reporting (314) 230-3366 26 WATER PCB-SD0000057028 1 Exhibit 6. My information is, and again, this 2 predates my tenure at Monsanto, my information is that 3 Monsanto operated a high temperature incineration to 4 dispose of liquid, liquids containing PCBs. That was 5 at our W-G-Krummrich plant, w-g-k-r-u-m-m-r-i-c-h. 6 Q. Working through the attachments to Mr. 7 Duesenberg's letter, I think the first attachment is 8 what is described in the letter as a White Paper on 9 Monsanto's involvement with PCBs ? is that correct? 10 A. That's correct. 11 Q. What is Aroclor, a-r-o-c-l-o-r? 12 A. Aroclor is a trade name of Monsanto Company 13 for a family of products which included products 14 containing PCBs. 15 Q. Would that have included Pydraul? 16 MR. GOEBEL: Which Pydraul? 17 Q. (By Mr. Bolzle) Pydraul, period. Any 18 Pydrauls? 19 A. Some Pydraul products contained Aroclors but 20 Pydrauls as a family of products are different from 21 the Aroclors. 22 Q. Okay. So Aroclors would have been a component 23 of some Pydrauls? 24 A. That's correct. Some Aroclors were components 25 of some Pydrauls. A & E Reporting (314) 230-3366 27 WATER PCB-SD0000057029 1 Q. Would Pydrauls having PCBs as a component have 2 Aroclors in them? 3 MR. GOEBEL: Just for the record, I know 4 you're becoming frustrated with my objections, but 5 just for the record, there are different Aroclors that 6 were in the Pydrauls that Rockwell Russellville plant 7 used, and really, I'd like for you to specify those, 8 if you can. 9 Q. (By Mr. Bolzle) Well, do you know what they 10 are? I know you all used Aroclor 1248s in you all's 11 Pydrauls. Did you use anything else? I've got an 12 outstanding discovery request on it. That's why. 13 MR. GOEBEL: I think whatever we used is 14 contained in these documents. But these documents 15 mention some Aroclors that we didn't use and I think 16 for the record, to be relevant, your discussion about 17 the Aroclors that we did use, you'll have to specify 18 those. 19 Q. (By Mr. Bolzle) Well, let's jump ahead just 20 briefly and we're going to do that. Let me show you 21 what's been marked Plaintiffs' Exhibit 7 to your 22 deposition. Is that a true and accurate copy of the 23 documents that you have in your files under your 24 supervision? 25 A. Yes. These are accurate copies of those A & E Reporting (314) 230-3366 28 WATER PCB-SD0000057030 1 documents. 2 Q. And are these documents marked as Plaintiffs' 3 Exhibit 7 kept and maintained in the regular course of 4 Monsanto's business? 5 A. Yes, they are. 6 Q. And were these documents made at or near the 7 time of the information being generated therein by 8 people with knowledge of that information? 9 A. Well, we're talking about two different 10 categories of documents here, I think as I testified 11 earlier. The first page of Exhibit 7 which is ROCW 12 110, was created by my staff sometime in March or 13 February or March of 1988. And the documents upon 14 which that page is based were generated from time to 15 time between, I guess, 1958 and 1971 or '72. 16 Q. The first page of Plaintiffs' Exhibit 7 is a 17 summary of the documents that are underneath it? 18 A. That's correct. 19 Q. The documents that are underneath the first 20 page, was the information set forth in those documents 21 made at or near the time that information was 22 generated? 23 A. Yes. 24 Q. Is it the regular practice of Monsanto Company 25 to maintain such records as part of its regularly A & E Reporting (314) 230-3366 29 WATER PCB-SD0000057031 1 conducted business activities? 2 . A. Yes, it is. 3 Q. Mr. Bistline, referring just to the top page 4 of Plaintiffs' Exhibit 7, I believe that shows that in 5 the years 1954 -- excuse me, 1958 through 1971, 6 Rockwell's Russellville facility basically purchased 7 two types of Pydraul, Pydraul F-9 and Pydraul 312; is 8 that correct? 9 A. Yes, that's correct. 10 Q. Do you know what the PCB content is of either 11 Pydraul F-9 or Pydraul 312? 12 A. I don't know -- I'm sorry, go ahead. 13 MR. GOEBEL: Did you mean PCB or Aroclor? 14 MR. BOLZLE: PCB. 15 THE WITNESS: I don't know from memory what 16 that content is. I would have to consult with records 17 at Monsanto to determine that. 18 Q. (By Mr. Bolzle) Do you know what the Aroclor 19 content of either Pydraul F-9 or Pydraul 312 is? 20 A. My answer would be the same. I don't know 21 from memory. I would have to consult records at 22 Monsanto. 23 Q. If I represented to you that the Aroclor 24 content of Pydraul 312 was -- or that the Aroclor 25 component of Pydraul 312 is Aroclor 1248, would you A & E Reporting (314) 230-3366 30 WATER PCB-SD0000057032 1 have any information that would contradict that? 2. MR. GOEBEL: Calls for speculation on the part 3 of this witness. 4 THE WITNESS: I have nothing in my memory, Mr. 5 Bolzle, that would contradict that. 6 Q. (By Mr. Bolzle) Okay. Is Monsanto a member 7 of the American National Standards Institute? 8 MR. GOEBEL: Currently? 9 Q. (By Mr. Bolzle) Currently. 10 A. I don't know whether we are currently. We 11 were at one time, I know, but whether we are 12 currently, I don't know. 13 Q. Referring specifically to the White Paper, 14 section 1, page 1, at the top paragraph, I believe it 15 states that Monsanto entered the chlorinated biphenyls 16 business in 1935; is that correct? 17 A. That's my information, yes. 18 Q. Also it states that in 1977 Monsanto ceased 19 production and distribution of chlorinated biphenyls 20 in cooperation with the electrical industry and that 21 chlorinated biphenyls were banned in the United States 22 in 1979; is that right? 23 A. Again, that's my information. 24 Q. Can you turn to section 1, page 4, sir? 25 A. Yes. I have it. A & E Reporting (314) 230-3366 31 WATER PCB-SD0000057033 1 Q. The second full paragraph sets forth therein, 2 I'll read that to you, it says, "High operating 3 pressures cause hydraulic systems to leak. Monsanto 4 therefore alerted users to manage wastes to eliminate 5 PCB discharge to the environment. As new hydraulic 6 fluids were developed in 1971, we" Monsanto, 7 "terminated sales of those containing PCBs." Did I 8 read that correctly? 9 A. Yes, sir. 10 Q. Was part of Monsanto's program of alerting 11 users to manage wastes to eliminate PCB discharges to 12 the environment the letters that are also included as 13 attachments to Plaintiffs' Exhibit 6? 14 MR. GOEBEL: I'm going to object to that 15 guestion on several grounds. First, you haven't 16 established any foundation about his knowledge of the 17 White Paper which you just read from. And that 18 document actually speaks for itself. And I think the 19 latter part of your question was did the 20 correspondence attached to the other attachments to 21 the Duesenberg letter, was that what the 22 correspondence that was sent to Rockwell; is that your 23 question? 24 MR. BOLZLE: Well, I don't know that you 25 completed your sentence. A & E Reporting (314) 230-3366 32 WATER PCB-SD0000057034 1 Q. (By Mr. Bolzle) My question was, the report 2 states that Monsanto alerted users to manage wastes to 3 eliminate PCB discharge to the environment; my 4 question was, was part of that program for alerting 5 users to manage wastes to eliminate PCB discharge to 6 the environment the mailing of letters to consumers 7 and users that are attached to Mr. Duesenberg's 8 letter? 9 MR. GOEBEL: Well, you haven't established 10 that the letters attached to Duesenberg's letter were 11 actually mailed to Russellville. 12 MR. BOLZLE: Uh-huh. I know. That's coming. 13 MR. GOEBEL: But your question assumes that it 14 did. 15 MR. BOLZLE: No. All my question is the 16 letters that are attached to Mr. Duesenberg's letter 17 which purported to have been mailed to Rockwell 18 International, were those part of Monsanto's program 19 to alert users to manage wastes to eliminate PCB 20 discharges to the environment. 21 MR. GOEBEL: My objection is that you have not 22 established a foundation for the question because you 23 haven't established that these letters were mailed to 24 Russellville. 25 MR. BOLZLE: Okay. Fine. Can you answer that A & E Reporting (314) 230-3366 33 WATER PCB-SD0000057035 1 question, sir? 2. THE WITNESS: Mr. Bolzle, I don't have 3 personal knowledge of what occurred back -- here at 4 Monsanto back in the time period referred to in this 5 letter. My information is that the letters that are 6 attached to Mr. Duesenberg's letter were part of that 7 program notification of Monsanto's customers, yes. 8 Q. (By Mr. Bolzle) Could you turn to section 4, 9 page 1, sir, of the White Paper. That's near the back 10 and it's section or it's page 00024. 11 A. Yes, I have it. 12 Q. Does that page include a section that 13 describes the PCB incineration program that was 14 provided to Monsanto's customers? 15 A. Yes, under the heading, Monsanto Provided PCB 16 Disposal Assistance to Customers. 17 Q. And can you tell me from your review of that 18 section when that disposal was offered by Monsanto? 19 A. According to this section and my best 20 information, the incinerator operated from roughly May 21 of 1971 until sometime in 1978, I believe, '77 or '78. 22 Q. Is there also a discussion on that page of 23 label warnings? 24 A. Yes. There is a notation of label warnings. 25 Q. And can you read what that particular section A & E Reporting (314) 230-3366 34 WATER PCB-SD0000057036 1 states? I think it's very short. 2. MR. GOEBEL: Document speaks for itself. 3 THE WITNESS: The section says, "In 1970 4 Monsanto modified the labeling of PCB packages to 5 emphasize the need to keep it from the environment. 6 Subsequently, labels on drums were written in seven 7 languages." 8 Q. (By Mr. Bolzle) Okay, sir, let me ask that 9 you move onto some other attachments to Mr. 10 Duesenberg's letter. Specifically on that, the page 11 that's numbered 00058. 12 A. I have it. 13 Q. Could you tell me the date of that letter? 14 A. This letter is dated February 9th, 1970. 15 That's page 00059. 16 Q. Can you tell me the subject of that letter? 17 A. This letter deals in general with the topic of 18 PCBs and environmental concerns and attaches an 19 article from Chemical Week magazine, the issue of 20 October 29th, 1969. 21 Q. I think that speaks specifically to certain 22 Aroclors; does it not? 23 MR. GOEBEL: I want to object to him 24 testifying about the content of a letter that he 25 obviously did not author and the letter really speaks A & E Reporting (314) 230-3366 35 WATER PCB-SD0000057037 1 for itself. He can tell you that it was in the 2 Monsanto records. He's the custodian of the records. 3 But now you're going in and asking him, you know, what 4 the letter says and the jury can read it, same as he 5 can. 6 Q. (By Mr. Bolzle) Let me ask you two quick 7 questions. Where is Mr. Duesenberg today? 8 A. I don't know where he is today. 9 Q. Is he still with Monsanto Company? 10 A. He's still Monsanto's General Counsel, yes. 11 Q. Referring specifically to the letter we were 12 just talking about, who is the author of that letter? 13 A. This letter was authored by Mr. Donald Olson, 14 O-l-s-o-n. 15 Q. Is he still employed by Monsanto? 16 A. No, he's not. 17 Q. Do you know where he is today? 18 A. He is -- he lives here somewhere in the St. 19 Louis area, to my best recollection. 20 Q. What do Monsanto records show as to whether 21 this February 9, 1970 letter from Mr. Olson was sent 22 to Rockwell? 23 A. Our records indicate that this letter was sent 24 to Rockwell. 25 Q. And what records are those? A & E Reporting (314) 230-3366 36 WATER PCB-SD0000057038 1 A. That would be the import of the document label 2 00058. 3 Q. And what does that document show? 4 A. Well, it shows three Rockwell addresses. 5 Q. And those are the addresses to whom or to 6 where the February 9, 1970 letter from Mr. Olson was 7 mailed? 8 A. That's correct. 9 Q. Where were these addresses that appear on page 10 00058 taken from? 11 A. 00058 is a page taken from a larger list of 12 Monsanto Pydraul customers. 13 Q. And what was that list used for in relation to 14 the February 9, 1970 letter? 15 A. My best information on this, Mr. Bolzle, is 16 that the list from which 00058 was taken is a list of 17 those to whom this letter, the February 9th, 1970 18 letter, was addressed. 19 Q. Okay, sir. Let me ask you to move to the 20 attachment that's first page is marked 00067? 21 A. Yes, I have it. 22 Q. What is the date of that letter, sir? 23 A. April 15th, 1971. 24 Q. And who was its author? 25 A. C. Larry Bradford, B-r-a-d-f-o-r-d. A & E Reporting (314) 230-3366 37 WATER PCB-SD0000057039 1 Q. Is Mr. Bradford still employed by Monsanto? 2 . A. No, he is not. 3 Q. Do you know where he is? 4 A. I believe he resides in the Chicago area now. 5 Q. Could you read for me the first sentence of 6 that letter? 7 MR. GOEBEL: Same as my other objections, the 8 jury can read this. 9 MR. BOLZLE: Well, let me make clear what I'm 10 doing. 11 Q. (By Mr. Bolzle) Could you read for the jury 12 the first sentence of that letter? 13 MR. BOLZLE: I don't think either you or I 14 want to sit around in trial in October while the jury 15 sits and reads letter by letter. I want to introduce 16 it through this witness. 17 Q. (By Mr. Bolzle) So if you would just go ahead 18 and read that first sentence. 19 A. First sentence says, "Over the past year or so 20 we have written you several letters concerning 21 polychlorinated biphenyls and have urged that care be 22 taken to prevent the escape of hydraulic fluids 23 containing PCBs into the environment." 24 MR. GOEBEL: If he's going to read part of it, 25 I'd like for him to read it all because it doesn't A & E Reporting (314) 230-3366 38 WATER PCB-SD0000057040 1 make it complete. 2. MR. BOLZLE: No. I'm not going to have him 3 read it all because we'll be here two weeks from now. 4 If you have anything else in there that you think is 5 relevant that he should read in the record beyond 6 purposes of just wasting our time, you can have him do 7 it on cross. 8 MR. GOEBEL: Well, I think it's unfair to have 9 him read excerpts of a letter without reading the 10 entire letter. 11 Q. (By Mr. Bolzle) Again, what do Monsanto's 12 records show as to whether or not that letter was sent 13 to Rockwell Manufacturing Company? 14 A. My information is that our records indicate 15 this letter was sent to the Rockwell address shown on 16 page 00067. 17 Q. I think that shows that it was specifically 18 mailed to Rockwell Manufacturing in Russellville, 19 Kentucky. 20 A. That's what that says, yes. 21 Q. Let me direct your attention to the document 22 marked 00104. 23 A. Yes, I have it. 24 Q. What is the date of that letter, sir? 25 A. This letter is dated January 31st, 1972. A & E Reporting (314) 230-3366 39 WATER PCB-SD0000057041 1 Q. And who was the author of that letter? 2 . A. Mr. Howard Bergen, B-e-r-g-e-n. 3 Q. Is Mr. Bergen still employed by Monsanto? 4 A. Mr. Bergen is deceased. 5 Q. Let me read you the first two sentences of 6 that letter. "We are writing to tell you that 7 effective June 30, 1972, all Pydraul fluids will be a 8 new formulation. We have decided to stop using 9 polychlorinated terphenyls as a component in our 10 fluids." Did I read that correctly? 11 A. Yes. 12 Q. Okay. Sir, if you turn to the document marked 13 00106? 14 Oh, I'm sorry. I'm sorry, Mr. Bistline. Let 15 me back up to 104. What do Rockwell's records show as 16 to whether or not Mr. Bergen's letter of January 31, 17 1972 was mailed to Rockwell? 18 A. I assume you mean Monsanto's records. 19 Q. What does Monsanto's records show as to 2 0 whether the letter was mailed to Rockwell? 21 A. Well, page 104, my information is that page 22 104 indicates that this letter of January 31, '72 was 23 sent to the two Rockwell addresses noted on page 104. 24 Q. And where were the addresses on page 104 25 obtained from? A & E Reporting (314) 230-3366 40 WATER PCB-SD0000057042 1 A. Where were those addresses obtained from? 2 - Q. Yes, sir. 3 A. From records in my possession, records of 4 Monsanto. 5 Q. Customer list? 6 A. It's a customer list, yes. 7 Q. All right, sir. Now, let's move to 106. What 8 is the date of that letter and who was its author? 9 A. Letter is dated March 15, 1972 and its author 10 is Mr. Howard Bergen. 11 Q. And am I correct that that letter includes an 12 attachment of the new Pydraul formulations? 13 A. Yes, that's correct. 14 Q. Referring back to Plaintiffs' Exhibit 7, it 15 reflects that Pydraul F-9 and Pydraul 312 were sold to 16 Rockwell by Monsanto between 1958 and 1971? 17 A. That's correct. 18 Q. Referring to the attachment to Mr. Bergen's 19 letter, does Pydraul F-9 equate to the Pydraul F-9-A 20 under the Old Product column for Selector 1? 21 MR. GOEBEL: Let me ask a preliminary 22 question. Is Pydraul F-9-A the same as Pydraul F-9? 23 THE WITNESS: My information is no, it is not. 24 Q. (By Mr. Bolzle) Okay. Is Pydraul 312 the 25 same as Pydraul 312 A? A & E Reporting (314) 230-3366 41 WATER PCB-SD0000057043 1 A. Again, my information is that it is not. 2 _ Q. Is Pydraul 312 the same as Pydraul 312 C? 3 A. No, sir. My information is that they are not 4 the same product. 5 Q. What do Monsanto's records show as to whether 6 this document was mailed to Rockwell International 7 Corporation? 8 A. It is my information that this document was 9 sent to the Rockwell location noted on page 106. 10 Q. And as with the other letters we've discussed, 11 the entry that appears on the pages preceding the 12 letter is taken from the customer list to whom those 13 documents were mailed? 14 A. That's my understanding, yes. 15 Q. Okay, sir. Can you refer to the document that 16 has the number 00069? 17 A. I have it. 18 Q. What is the date of that letter, sir, and who 19 is its author? 20 A. That letter bears the date August 3, 1973, and 21 its author was Dr. Cumming Paton, C-u-m-m-i-n-g, 22 P-a-t-o-n. 23 Q. Is Mr. Paton still with Monsanto? 24 A. He's retired from Monsanto. 25 Q. Do you know where he lives today? A & E Reporting (314) 230-3366 42 WATER PCB-SD0000057044 1 A. I believe he still lives here in the St. Louis 2 area. 3 Q. Now, included with that letter, I believe, 4 were excerpts from the Federal Register Rules and 5 Regulations, polychlorinated biphenyls. 6 A. That's correct. 7 Q. Also included with that letter was a 8 description of Monsanto's incineration service for 9 Pydraul fluids; is that correct? 10 A. That's correct. Well, it's a letter which 11 describes that service, that's correct, or describes 12 what steps need to be taken to take advantage or 13 available in -- avail one's self of the service. 14 Q. The fourth paragraph of the incineration 15 service letter, first sentence says, "Incineration 16 charges for Pydraul fluids are five cents per pound." 17 Is that correct? 18 A. That's what it says. That's page 00073. 19 Q. And finally, I think attached to Mr. Paton's 20 letter was a list, an attachment which listed Pydraul 21 fluids containing chlorinated ingredients. 22 A. That's correct. 23 Q. Am I correct that listed under Pydraul fluids 24 which contained chlorinated ingredients are Pydraul 25 F-9 and Pydraul 312? A & E Reporting (314) 230-3366 43 WATER PCB-SD0000057045 1 A. That's correct. 2 Q. What do Monsanto's records show as to whether 3 this document with its attachments were mailed to 4 Rockwell International Corporation? 5 A. Our records would show that as indicated on 6 page 00069, this letter was sent to the two Rockwell 7 locations noted thereon. 8 Q. And that would include the Rockwell location 9 in Russellville, Kentucky, specifically; would it not? 10 A. That's what's shown on that page, yes. 11 Q. Those are entries taken from the customer list 12 to whom the list of customers -- to whom the letter 13 was mailed? 14 A. That's my information, yes. 15 Q. Mr. Bistline, let me refer you to four 16 separate documents. They are 00085, 86, 87, and 89. 17 A. Yes, I have them. 18 Q. Beginning with the document with page number 19 00085 on it, what was the date of that document and 20 who is its addressee? 21 A. The document bears the date August 28, 1975, 22 and it bears the address, Rockwell International, 23 P.0. Box 464, Golden, Colorado. 24 MR. GOEBEL; I'm going to object to the 25 relevancy of this letter. A & E Reporting (314) 230-3366 44 WATER PCB-SD0000057046 1 Q. (By Mr. Bolzle) Is there a name of an 2 individual to whom this letter is being sent to the 3 attention of? 4 A. Attention Mr. D. M. Hogan. 5 Q. How about the document page number 00086? 6 A. That is a letter dated January 27th, 1976, 7 addressed to Rockwell International, P.O. Box 464, 8 Golden, Colorado, Attention Mr. D. M. Hogan. 9 Q. How about document page numbered 00087? 10 MR. GOEBEL: With respect to all of these I 11 want to object to the relevancy as not pertaining to 12 the Russellville facility. 13 THE WITNESS: 00087 is a letter dated July 14 28th, 1976, addressed to Rockwell International, 15 Columbia Aircraft Division, P.O. Box 1259, Columbus, 16 Ohio, Attention G. Rips, R-i-p-s. 17 Q. (By Mr. Bolzle) And I believe, does the 18 second page of that reflect the author of the letter? 19 A. It bears the signature C. R. Field, 20 Supervisor, Customer Service Center. 21 Q. And can you give me the same information for 22 document page number 00089? 23 A. That document is a letter dated July 18th 24 1977. The addressee is Mrs. B. J. Faris, F-a-r-i-s, 25 Rockwell International Company, Rock Flats Plant, Post A & E Reporting (314) 230-3366 45 WATER PCB-SD0000057047 1 Office Box 464, Golden, Colorado. 2 Q. Now, taking those four documents together, and 3 referring specifically to the first sentence of those 4 four documents, those documents purport to confirm, do 5 they not, telephone conversations concerning 6 incineration of Askarel and Pydraul fluids. 7 MR. GOEBEL: Object to relevancy and also 8 you're asking him about something that you haven't 9 laid a foundation to show that he has knowledge that 10 telephone conversations were made. 11 MR. BOLZLE: I didn't ask him if he knew about 12 the telephone conversations. I asked him what the 13 letter purported to state. 14 Q. (By Mr. Bolzle) And is it not correct, sir, 15 that they purport, the letters purport to confirm 16 telephone conversations concerning the incineration of 17 Askarel fluids and Pydrauls? 18 A. Three purport to concern telephone 19 conversations relating to Askarel and one purports to 20 relate to incineration of Pydraul F-9. 21 Q. And each of those letters provides information 22 concerning reshipment of the Pydrauls or Askarel waste 23 back to Monsanto for incineration; do they not? 24 A. That's the purport of the letter, yes. 25 Q. Now, Askarel -- let me spell that, A & E Reporting (314) 230-3366 46 WATER PCB-SD0000057048 1 A-s-k-a-r-e-1, is a generic name for fire-resistant 2 dielectric fluids including those containing PCBs; is 3 it not? 4 MR. GOEBEL: Objection, relevancy. 5 THE WITNESS: Yes. That's my understanding. 6 Q. (By Mr. Bolzle) Last but not least, Mr. 7 Bistline, the document with the page number 00090? 8 A. Yes, I have it. 9 Q. What is that document? 10 A. My information is that this is a copy of a 11 label which was sent to Monsanto's customers to be 12 affixed to a barrel containing PCB fluids to be 13 incinerated at Monsanto's incinerator. 14 Q. Do those, does that label discuss any of the 15 hazards of the contents? 16 MR. GOEBEL: Objection, document speaks for 17 itself. 18 THE WITNESS: There are two paragraphs on this 19 label which speak to the need to prevent entry of PCBs 20 into the environment and also to avoid physical 21 contact with the fluid. 22 Q. (By Mr. Bolzle) When was this document sent 23 to Rockwell, do you know? 24 MR. GOEBEL: When you say to Rockwell, can you 25 be more specific? A & E Reporting (314) 230-3366 47 WATER PCB-SD0000057049 1 MR. BOLZLE: No, no, and that's -- I'm not 2 going to be more specific because the defendant in 3 this case is not and has never been Rockwell's 4 Russellville facility. It is Rockwell International 5 Corporation. 6 Q. (By Mr. Bolzle) So my question is do you 7 know, sir, when that particular document was mailed to 8 Rockwell? 9 A. I don't know from my own knowledge, Mr. 10 Bolzle. 11 Q. What is your information as to when this was 12 mailed to Rockwell? 13 A. My information is that it would have been an 14 attachment to the four letters that we previously 15 discussed. 16 Q. Now, you've - 17 A. And that it was -- I'm sorry -- that it was 18 also, I believe, attached to Dr. Paton's 1973 letter. 19 Q. Now you've answered several questions, and I 20 understand your circumstances, you answered several of 21 my questions based upon your information. 22 A. That's correct. 23 Q. From whom have you obtained that information 24 and how did you obtain that information? 25 A. That information I obtained from several A & E Reporting (314) 230-3366 48 WATER PCB-SD0000057050 1 individuals, retirees, from Monsanto Company. 2 Q. But these are individuals that are no longer 3 with Monsanto? 4 A. They are not now with Monsanto, that's 5 correct. 6 Q. Can you identify these individuals? 7 A. Yes. 8 Q. Who are they? 9 A. Principally, Mr. William Papageorge, Mr. Paul 10 Benignus, B-e-n-i-g-n-u-s, and Dr. R. E. Kelly. 11 Q. And they're employees of Monsanto here in the 12 St. Louis area? 13 A. They are all currently retired employees of 14 Monsanto, all living in the St. Louis area. 15 Q. Do you have the addresses and telephone 16 numbers of these individuals if we needed to contact 17 them? 18 A. I have them at my office, yes. Don't have 19 them in my hand. 20 Q. I understand. All right, Mr. Bistline, we've 21 discussed, I believe already, Plaintiffs' Exhibit 7, 22 which is the Sales Summary that was -- and attached 23 document that was prepared at your request. 24 Let me hand you Plaintiffs' Exhibit 8, and 25 have you identify those documents for the record? A & E Reporting (314) 230-3366 49 WATER PCB-SD0000057051 1 A. These are documents which can generically be 2 described as product labels for Pydrauls F-9, 312, and 3 312 A, and that would be pages 140 through 147, and 4 technical bulletins relating to Pydraul products which 5 are comprised of pages 148 through 266. 6 Q. Now, what are technical bulletins? 7 A. Technical bulletins are documents prepared by 8 Monsanto as an aid both to our sales representatives 9 and our customers that provide certain technical data 10 relating to, in this case, Monsanto's Pydraul 11 hydraulic fluids. 12 Q. Now, are the documents contained in 13 Plaintiffs' Exhibit 8 to your deposition business 14 records of Monsanto Company? 15 A. Yes, they are. 16 Q. And are they true and correct copies of the 17 documents that you have in your file and custody? 18 A. Yes, they are. 19 Q. Are those documents, were those documents made 20 and are they maintained in the regular course of 21 Monsanto's business? 22 A. Yes. 23 Q. And is Monsanto's business a regularly 24 conducted activity in which these documents are kept 25 and maintained? A & E Reporting (314) 230-3366 50 WATER PCB-SD0000057052 1 A. Yes. 2 - Q. And were these documents prepared and the 3 information set forth therein by persons having 4 knowledge of that information at or near the time of 5 those events? 6 A. That's my information, yes. 7 Q. All right, sir. Have you spoken with any 8 representatives or attorneys of Rockwell International 9 Corporation before this deposition today and 10 specifically about this deposition? 11 A. Specifically about this deposition, no. I 12 don't recall ever speaking to a Rockwell attorney, on 13 any topic. 14 Q. When you talk about Rockwell attorneys are you 15 including in that description people like Mr. Goebel 16 who are outside attorneys employed by Rockwell? 17 A. Yes, that's correct. I don't think -- I know 18 I said when I came in that I thought I recognized Mr. 19 Goebel but I don't think he and I have ever met 20 before. 21 Q. I don't have any further questions for you at 22 this time, sir. Thank you. 23 24 25 A & E Reporting (314) 230-3366 51 WATER PCB-SD0000057053 1 DIRECT EXAMINATION 2 BY MR^_ CUNNINGHAM: 3 Q. Mr. Bistline, I'd be real curious to know what 4 sort of stuff you did prior to law school, what sort 5 of undergraduate degree, for instance, you had? 6 A. Political science and history. 7 Q. And did you do anything from the time you 8 graduated with your political science and history 9 degree and the time you entered law school? 10 A. I worked for a year, not a full year, about 11 nine months, for Metropolitan Life Insurance Company 12 in New York. 13 Q. And then on to law school and after law school 14 did you immediately go to work at Monsanto? 15 A. No, sir, I didn't. I was an associate of 16 Simpson, Thatcher & Bartley in New York City. 17 Q. Did you practice any particular area or have 18 an emphasis in practice of law during your time with 19 that firm? 20 A. My practice was primarily in the area of 21 products liability defense; although, I had, I guess 22 basically general litigation practice with Simpson 23 Thatcher. 24 Q. Do you find that your practice has a 25 particular emphasis now as an Assistant General A & E Reporting (314) 230-3366 52 WATER PCB-SD0000057054 1 Counsel with Monsanto? I understand you're in the 2 litigation section; any particular type of litigation 3 for Monsanto? 4 A. I am responsible for all of our cases 5 involving polychlorinated biphenyls, PCBs. That is 6 part of my responsibility but I have other areas for 7 which I am responsible as well. 8 Q. But you're the man, when it comes to, if 9 someone contacts Monsanto about PCBs, that's going to 10 come across your desk at some point. 11 A. Not necessarily. If someone contacts Monsanto 12 about PCB litigation, I would be involved. 13 Q. Okay. I'm sorry. Good point. How long have 14 you been the individual primarily responsible for the 15 litigation of PCB-related events at Monsanto? 16 A. Since approximately January of 1985. 17 Q. May I safely assume that by subpoenaing you to 18 bring to this deposition today those records that you 19 have in the archive that you have described, that we 20 have tapped the best source in Monsanto for 21 information relating to communications between 22 Monsanto and Rockwell historically concerning PCBs? 23 A. Yes, that's my believe. 24 Q. Would I be safe in assuming that Rockwell is 25 not the only entity in the last 10 years that has A & E Reporting (314) 230-3366 53 WATER PCB-SD0000057055 1 written letters such as I believe it's Exhibit Number 2 5, Mr. Harff's letter to Mr. Duesenberg? Is this 3 something that's happened before in other context to 4 Monsanto? 5 A. We have received other such letters, yes. 6 Q. In fact, have there even perhaps been 7 litigation where you've actually been a named 8 defendant or third party defendant where allegations 9 have been made that Monsanto should be legally 10 responsible for clean-up costs or compensation costs 11 arising out of the contamination of the environment or 12 toxic effects on individuals caused by their PCBs? 13 A. Yes, that's correct. 14 Q. Has Monsanto, however, actually been adjudged 15 liable in any of that sort of litigation other than on 16 the basis of say strict liability as opposed to -- I 17 guess what I'm looking for, anything that would arise 18 to a judgment that Monsanto was liable for failure to 19 warn its customers or in any way was guilty of any 20 sort of or found liable for any sort of fraud or 21 deception? 22 MR. GOEBEL: Object to the relevancy of the 23 question. 24 THE WITNESS: I can only speak for the period 25 of time for which I've been responsible for these A & E Reporting (314) 230-3366 54 WATER PCB-SD0000057056 1 cases. We had one case in Milwaukee, Wisconsin, Stroh 2 Die-casting Company was the plaintiff, in which we 3 were found liable and assessed punitive damages but 4 that jury verdict and adjudgment was reversed on 5 appeal. 6 Q. S-t-r-o-h? 7 A. s-t-r-o-h. 8 Q. Okay. And in all other instances, Monsanto's 9 conduct as far as keeping its customers advised 10 historically has passed muster with juries when it's 11 come to that point? 12 A. I can only respond that since 1985, that's the 13 only verdict that's been entered against it in a PCB 14 case. 15 Q. One thing I was a little curious about. On 16 these 5 and 6, the salutations, one opens with "Dear 17 Dick" and the response starts with "Dear Charles". Do 18 you have any reason to know whether or not Mr. Harff 19 and Mr. Duesenberg knew each other? 20 A. Mr. Duesenberg told me that he knows Mr. 21 Harff. 22 Q. What is the nature of that relationship as far 23 as you know? 24 A. I don't know, Mr. Cunningham. 25 Q. Am I correct in understanding from in your A & E Reporting (314) 230-3366 55 WATER PCB-SD0000057057 1 earlier testimony there's never been any actual filing 2 of any sort of litigation between Rockwell and 3 Monsanto concerning PCB use at their Russellville 4 facility or any other Rockwell facility; correct? 5 A. Not to my knowledge. 6 Q. Looking at letter number, your number, Exhibit 7 Number 6, which is the letter you drafted for Mr. 8 Duesenberg in response to Mr. Harff's letter, you make 9 a statement in there towards the end of page 2 and 10 beginning of page 3 regarding allegations regarding 11 the case of Smith v. Rockwell. That would not seem to 12 be readily apparent from the documentation that is 13 attached to the letter and I'm curious as to what 14 additional information or sources of information you 15 may have tapped in preparation, if nowhere else, at 16 least in that part of your letter? 17 A. Counsel employed by Monsanto consulted the 18 court record in that case, prior to my drafting the 19 letter. 20 Q. It's my understanding that case has been 21 resolved for two years now. 22 MR. GOEBEL: Object to the relevance. 23 Q. (By Mr. Cunningham) Ever been contacted 24 regarding that particular lawsuit? 25 A. Not to my knowledge. A & E Reporting (314) 230-3366 56 WATER PCB-SD0000057058 1 Q. I wanted to try to just clarify the 2 terminology here and if I'm taking you beyond your 3 understanding, then that's fine, but I have this sense 4 that you probably do understand this stuff and may be 5 helpful to the jury. 6 PCBs or polychlorinated biphenyls are a 7 substance of synthetic organic chemical. It's a 8 family of different types of isomers; is that not 9 correct? 10 MR. GOEBEL: I'm going to object. You haven't 11 laid a foundation that he does know that chemical 12 makeup. He's a records custodian and he's an 13 attorney. Now you're asking him technical questions. 14 And may I ask a preliminary question, sir? 15 MR. CUNNINGHAM: Sure. 16 THE WITNESS: Sure. 17 MR. GOEBEL: Would William Papageorge be the 18 person who would be qualified to give a technical 19 answer about the chemical makeup of PCBs? 20 THE WITNESS: Mr. Papageorge is a chemical 21 engineer. I would assume he has that knowledge, yes. 22 In fact, I know he does. 23 Q. (By Mr. Cunningham) We all have that 24 knowledge, too. I'm just trying to get in the record, 25 and if you don't know what PCBs are, you just happen A & E Reporting (314) 230-3366 57 WATER PCB-SD0000057059 1 to be the guy who's been in charge of PCB litigation 2 since 1985, but you haven't got a clue what they are, 3 then that's fine; tell us so. But I'm trying to get 4 this simplified for the jury. We're using a lot of 5 different terminology. I don't think it's really that 6 complex. 7 When one speaks of PCBs, one is talking about 8 the family of organic synthetic chemicals; correct? 9 MR. GOEBEL: Same objection. 10 THE WITNESS: That's my information, yes. 11 Q. (By Mr. Cunningham) When one speaks of 12 Aroclors, conversely, that is the trade name that 13 Monsanto used for the PCB fluids that it manufactured; 14 correct? 15 A. The Aroclor family of products included more 16 than just PCB products. 17 Q. But that is what the PCBs were. I mean it 18 contained other compounds but it also -- that's what 19 the PCBs went into? 20 A. Well, certain Aroclors contained PCBs, but as 21 I think we've discussed earlier today, other Monsanto 22 products also contained PCBs and those products were 23 sold under names other than Aroclor. 24 Q. And the specific products we're talking about 25 here with regard to Rockwell were Pydrauls which were A & E Reporting (314) 230-3366 58 WATER PCB-SD0000057060 1 hydraulic fluids? 2 A. As a family of products, yes, these were 3 hydraulic fluids. 4 Q. Whereas Aroclors has a broader base of 5 application in industry than just hydraulic fluids, 6 particularly as dielectric fluids? 7 A. Certain Aroclors were components of dielectric 8 fluids, yes. 9 Q. When one talks about an Aroclor 1248 or an 10 Aroclor 1254, the principal difference between those 11 two substances was degree of chlorination in the 12 molecule; correct? 13 A. That's my information, yes. 14 Q. The principal significant difference therein 15 was the viscosity of the fluid? 16 A. I'm not sure I understand what you mean by the 17 principal difference. Are you talking about -18 Q. Chemical characteristic of property. 19 A. I'm not sure I'm qualified to speak to that. 20 Q. Am I correct in understanding that Monsanto 21 was the exclusive domestic United States manufacturer 22 of polychlorinated biphenyls? 23 A. No. We were not the exclusive manufacturer of 24 PCBs. 25 Q. Do you know what your market share was for say A & E Reporting (314) 230-3366 59 WATER PCB-SD0000057061 1 1956 to the early 1970s? 2 _ A. I don't know. 3 Q. Can we safely say that it was the vast 4 majority of those products? 5 A. I think we could say that Monsanto 6 manufactured the majority of PCBs during that period 7 of time, yes, domestic manufacturer of PCBs. 8 Q. Okay. In your review of the extensive 9 documents available in the archives at Monsanto, did 10 you ever find any information or documentation that 11 would indicate that Monsanto advised its customers 12 that it was appropriate to discharge Pydrauls, 13 hydraulic fluid, out into the open environment as a 14 disposal mechanism? 15 MR. GOEBEL: Objection? no evidence that that 16 happened in this case. No basis for the question. 17 THE WITNESS: I've seen no document that 18 contains that advice. 19 Q. (By Mr. Cunningham) I did see some references 20 in some of the attachments in Number 6 to a service 21 offered by Monsanto to test and evaluate the PCB 22 contents to various fluids it may have sold its 23 customers. Have you, again, in your research of the 24 extensive archives of Monsanto's records, ever found 25 any documentation that would seem to indicate that A & E Reporting (314) 230-3366 60 WATER PCB-SD0000057062 1 Monsanto tested fluid provided by the Russellville 2 Rockwell facility and advised that facility that its 3 sample did not contain PCBs? 4 A. I have not seen any record which would 5 indicate that we did any testing of samples for the 6 Russellville facility. 7 Q. But you did offer that service to your 8 customers if they had doubts or concerns? at least the 9 records reflect that. 10 A. The records reflect that testing services were 11 offered, yes. 12 Q. The oldest documents that I saw in the 13 attachments were 00027 and - 14 A. 27? 15 Q. -- 27 and those attached to it, which I'm 16 reading as under date of August 29, 1960. 17 THE WITNESS: Off the record for a second? 18 (Discussion off the record.) 19 THE WITNESS: Okay. I have document number 20 00027, yes. 21 Q. (By Mr. Cunningham) And the date on that I 22 read is August 29, 1960, and I'm presuming you have no 23 information to suggest that date is inaccurate. 24 A. I have no information one way or the other, 25 Mr. Cunningham. A & E Reporting (314) 230-3366 61 WATER PCB-SD0000057063 1 Q. And can you tell me whether or not the 2 archives that are available to you in your document 3 searches and to your staff in their document searches 4 at your insistence go back at least then, therefore as 5 far as 1960? 6 A. I have seen documents in our archives much 7 older than 1960. 8 Q. And in reading the response to that request 9 about the composition and characteristics of Pydrauls 10 supplied for Rockwell's facility in Russellville, I 11 take it that is the letter 00028 and 29 with 12 attachments, and it seems to describe what was then 13 known about the toxic effects both in animal studies 14 and in humans of the fluid, have you seen anything in 15 the archives that would indicate that when asked about 16 the toxic or health hazards of this substance, that 17 Rockwell refused to provide this information to any 18 customer? 19 A. Monsanto refused to provide? 20 Q. Monsanto refused. 21 A. I have seen no document that indicates that 22 Monsanto refused to communicate such information. 23 Q. That's all I have. 24 MR. GOEBEL: Can we take a short break? 25 MR. BOLZLE: Mr. Bistline, couple things I A & E Reporting (314) 230-3366 62 WATER PCB-SD0000057064 1 neglected to ask you come to mind. 2 REDIRECT EXAMINATION 3 BY MR. BOLZLE: 4 Q. Do Monsanto's records reflect that there was 5 any response from Rockwell to the letter you prepared 6 on behalf of Mr. Duesenberg that's marked Plaintiffs' 7 Exhibit 6? Did you ever get a response to that letter 8 from Rockwell? 9 A. I never received one. I don't know whether 10 Mr. Duesenberg ever received a response. If he did, 11 he didn't communicate it to me. 12 Q. Do you have any such response in the records 13 in your custody? 14 A. No, sir, I don't. 15 Q. Do you have any documents in your custody that 16 are letters or correspondence you were sent by 17 Rockwell taking issue with any of the statements set 18 forth in the letters attached to Mr. Duesenberg's 19 letter? 20 A. Other than Mr. Harff's letter of February 4, 21 1988, no. 22 Q. No further questions. 23 MR. GOEBEL: Let's just go ahead. 24 25 A & E Reporting (314) 230-3366 63 WATER PCB-SD0000057065 1 CROSS-EXAMINATION 2 BY MR. GOEBEL; 3 Q. All right. For the record. I'm Tony Goebel. 4 I represent Rockwell International Corporation. 5 Mr. Bistline, you've never visited the 6 Russellville, Kentucky Rockwell site; is that correct? 7 A. That's correct. 8 Q. And you've never spoken to anyone at the 9 Russellville Rockwell Manufacturing facility about 10 anything we've talked about today. 11 A. That's correct. 12 Q. Are you aware of the operations that were in 13 existence at the Russellville, Kentucky manufacturing 14 facility? 15 A. Only to the extent that they were discussed in 16 Mr. Harff's letter. 17 Q. All right. Were you aware of any reclamation 18 system that was in place at the Russellville facility 19 to reclaim the Pydraul fluid? 20 A. No, Mr. Goebel, I'm not. I'm not. 21 Q. You don't know if there was one or not? 22 A. I have no knowledge one way or the other on 23 that. 24 Q. Are you aware of whether the Russellville 25 facility sent its Pydraul off-site for reclamation? A & E Reporting (314) 230-3366 64 WATER PCB-SD0000057066 1 A. I have no information one way or the other. 2 . Q. You've identified some, the incineration 3 service available at Monsanto to incinerate PCBs; to 4 your knowledge, were there other facilities around the 5 country that were available to incinerate PCBs? 6 A. I believe there were. 7 Q. And you're not aware of whether Rockwell 8 utilized any other facility other than the Monsanto 9 facility? 10 A. No, sir. I'm not. 11 Q. How does Monsanto keep its records with 12 respect to former customers who had used 13 PCB-containing fluids? 14 A. I'm not quite sure what you mean. 15 Q. Is it by facility? Is it by the Russellville 16 plant? Is it kept by Rockwell generically? 17 A. There are probably several different ways that 18 those records would be kept. It would be more by 19 category of document. In some instances, for example, 20 sales records are kept as a group. They're not 21 segregated or broken down by customer. There may be 22 files that were kept by Monsanto employees relating to 23 questions received from a particular customer that 24 would be in a customer file. As far as inquiries 25 relating to health and safety matters, those would be A & E Reporting (314) 230-3366 65 WATER PCB-SD0000057067 1 kept in what the medical department at the time called 2 product files. So there would be a file on Pydraul 3 F-9 that would contain inquiries received from anyone 4 on the matter related to health and safety for that 5 product. 6 Q. You've identified several documents today that 7 you have testified were actually mailed to Rockwell, 8 one of its facilities. 9 A. That would be what our records indicate, yes. 10 Q. And the documents that you have testified were 11 actually mailed had a cover page on them, did they 12 not, showing that it was mailed to a particular 13 facility? 14 A. There was a portion of a list associated with 15 each of those letters, yes. 16 Q. Would the documents that did not contain that 17 list and the designation of those, of any Rockwell 18 facility, is there any evidence that any of these 19 other documents were actually mailed to Russellville, 20 Kentucky? 21 A. I'm not sure I'm following your question. 22 Q. Well, let's take -- you've identified and have 23 produced some documents, Bates stamped 140 through 24 266. 25 A. Oh, I understand what you mean. You're A & E Reporting (314) 230-3366 66 WATER PCB-SD0000057068 1 referring to the collection of documents in Exhibit 8. 2 . Q. Yes. 3 A. And you're asking whether they were mailed to 4 or otherwise provided to Rockwell? 5 Q. Yes. 6 A. Yes. I have no record indication of that. 7 All I can say is that a product, it's my understanding 8 that Monsanto's policies and practices, that the 9 labels that are contained, product labels that are 10 contained in Exhibit 8, were affixed to those products 11 when they were sent to any customer and that the 12 technical bulletins contained in Exhibit 8 were of a 13 type which were generally provided by Monsanto sales 14 people to Monsanto's customers. 15 Q. But specifically, whether these technical 16 bulletins were sent to Russellville, Kentucky, 17 Monsanto has no list showing that they were actually 18 sent. 19 A. Other than what might be reflected in the 20 exhibits we talked about today, no. I think maybe one 21 of these letters reflects that a technical bulletin 22 was sent to the insurance company that acquired them 23 on Rockwell's behalf. 24 Q. In 1960? 25 A. In 1960. A & E Reporting (314) 230-3366 67 WATER PCB-SD0000057069 1 Q. Could I have this marked, please? 2 (Defendants' Exhibit A marked.) 3 Q. Let me hand you what's been marked as 4 Defendants' Exhibit A and ask you if you've ever seen 5 that document before? 6 A. This appears to be a copy of Monsanto 7 technical literature related to Pydraul F-9. I 8 believe I've seen this document before, yes. 9 Q. And it wasn't one of the F-9 bulletins that 10 you produced today, was it? 11 A. I don't believe this is in the collection, no 12 Q. I thought I had an extra copy for myself but 13 let me refer to this. 14 A. Sure. 15 Q. On page 18 of that document there's a 16 Section X entitled, Toxicity and Safe Handling 17 Information. 18 A. Yes, I see that. 19 Q. Does it mention anywhere in there about the 20 environmental -- or first of all, does it mention 21 PCBs? 22 A. No. I've seen this write-up before and the 23 write-up does not specifically state PCBs. 24 Q. Well, not -- 25 A. Or even generally states PCBs. Mentions A & E Reporting (314) 230-3366 68 WATER PCB-SD0000057070 1 Pydrauls. 2 Q. Do you know about the vintage of this 3 document, when it was generated by Monsanto? 4 A. I don't know as I sit here. 5 Q. F-9 from the other records it appears was 6 discontinued at about what year? 7 A. Pydraul F-9 would have been discontinued in 8 approximately, I think, 1971. I believe we sold it 9 until '71. The last sale to the Russellville plant, 10 Rockwell Russellville plant is reflected in our 11 records as 1966. 12 Q. And on page 18 of Defendants' Exhibit A, the 13 only harms identified by Monsanto or discussed are 14 harms from exposure to the skin, the eyes, and from 15 inhalation; is that right? 16 A. That's correct. 17 Q. And it does not say that Pydraul poses a 18 danger to the environment, does it? 19 A. Not on page 18, no, sir. 20 Q. Does it state that anywhere else in the 21 document? 22 A. I don't believe it, the environmental 23 concerns, are discussed anywhere in this technical 24 bulletin. 25 Let me go off the record for one second. A & E Reporting (314) 230-3366 69 WATER PCB-SD0000057071 1 Q. Sure. 2. (Discussion off the record.) 3 Q. During our little break you have now come up 4 with generally the time frame this document may have 5 been produced. 6 A. Yes. It appears to me from referring to page 7 19, the St. Louis address for Monsanto is 800 North 8 12th Boulevard St. Louis 1, Missouri. That would 9 indicate that this bulletin was produced probably in 10 the early to mid-1950s since after about 1957, '56 or 11 '57, our sales office moved to 800 North Lindbergh 12 Boulevard in St. Louis which is our current world 13 headquarters address. 14 Q. All right. I think that helps us. Thank you. 15 Let's refer to the documents attached to Mr. 16 Duesenberg's letter and let's start with the one Bates 17 stamped 00027, which is a letter dated August 29th, 18 1960? 19 A. Yes, I have it. 20 Q. All right. In that letter there is a request 21 that Monsanto provide the composition of Pydraul - 22 that says F-200. I believe the product manufactured 23 was A-200; is that right? 24 A. My information is the product is A-200, yes. 25 Q. And it asks that they be provided with A & E Reporting (314) 230-3366 70 WATER PCB-SD0000057072 1 information on the health and fire hazards and the 2 toxic nature of Pydraul A-200 -- or they say F-200? 3 A. That's correct. 4 Q. And the response is apparently contained in 5 the document dated September 1st, I960, Bates stamps 6 00028 through 33; is that correct? 7 A. I believe that's correct. 8 Q. Actually, it may be -- 9 A. It may be more. I'd have to track the 10 numbers. The attachments to the letter are listed on 11 page 00029. 12 Q. I think it may be through Bates stamp 00048, 13 if you'll check. 14 A. That would -- I think that's correct. I think 15 it's through 00048. 16 Q. Let's look at the cover letter dated September 17 1st, 1960, Bates stamped 28. 18 A. Yes. 19 Q. In the second paragraph of that letter, it 20 discusses the dangers associated with Pydraul A-200; 21 does it not? 22 A. Yes, it does. 23 Q. And it talks about accidental ingestion of the 24 fluid, about midway down? 25 A. Yes. A & E Reporting (314) 230-3366 71 WATER PCB-SD0000057073 1 Q. And what does it state about accidental 2 ingestion? 3 A. That sentence reads, "Our interpretation of 4 this data is that accidental ingestion of the fluid is 5 not a hazard in view of the high oral lethal dose." 6 Q. And then in the next sentence it states that 7 prolonged and repeated skin contact should be avoided; 8 is that correct? 9 A. That's correct. 10 Q. And then in the first sentence, next 11 paragraph, it says that Monsanto recommends that vapor 12 inhalation be prevented when the fluid is at elevated 13 temperatures; correct? 14 A. That's correct. 15 Q. This letter does not mention any environmental 16 dangers associated with Pydraul A-200, does it? 17 A. That's correct. 18 Q. And it does not mention that Pydraul contained 19 PCBs, does it? 20 A. It does not refer to PCBs. 21 Q. And it also does not say anything about 22 preventing leakage of Pydraul into the environment, 23 does it? 24 A. No. That specific cautionary language was not 25 part of our -- part of Monsanto's warning, to my A & E Reporting (314) 230-3366 72 WATER PCB-SD0000057074 1 information, until approximately 1970. 2 Q. My question was -- I'll move to strike your 3 last answer as being unresponsive. 4 But in this letter, none of that language 5 appears; is that right? 6 A. That's correct. 7 Q. Let's refer to the first attachment. It's a 8 document entitled Pydraul A-200. 9 A. Yes, page 00030. 10 Q. Yes, sir. That's one of the technical 11 bulletins that you described before, correct? 12 A. This -- yes, this is one of the technical 13 bulletins, that's correct. 14 Q. On the last page which is Bates stamped 00033, 15 it discusses the handling and storage of Pydraul 16 A-200; does it not? 17 A. Yes. 18 MR. BOLZLE: Let me interject here. I mean 19 obviously I discussed with him the contents of these 20 documents and I think you're entitled to do so, but if 21 you intend to object to my discussion with Mr. 22 Bistline of the contents of these documents, I'm going 23 to need to object to your discussion. 24 MR. GOEBEL: That's fine. You went ahead and 25 asked your questions, so I feel obligated to. A & E Reporting (314) 230-3366 73 WATER PCB-SD0000057075 1 MR. BOLZLE: If you'll give me a running 2 objection. 3 MR. GOEBEL: That's fine. 4 Q. (By Mr. Goebel) On that page 00033 it 5 discusses repeated and continuous skin contact should 6 be avoided and inhalation of the vapors at elevated 7 temperatures should be prevented and then further down 8 it states that eye irritation studies after using the 9 material full strength showed it to be a mild irritant 10 with no permanent damage to the eye tissues. Is that 11 what is contained in the handling and storage portion 12 of this brochure? 13 A. Yes, that's what it says. 14 Q. This brochure, and I'll have you review it, 15 does not warn about any of the environmental dangers 16 of, first of all, Pydraul, or second, PCBs? does it? 17 A. No, there is no information on environmental 18 concerns in this brochure. That predates those, our 19 knowledge of those. 20 Q. In fact, this brochure does not even mention 21 PCBs, does it? 22 A. I believe that's correct. I haven't read 23 every word in here but it would be consistent with our 24 literature from that time period. It would not refer 25 specifically to PCBs. A & E Reporting (314) 230-3366 74 WATER PCB-SD0000057076 1 Q. Let's take the next brochure which was the 2 second attachment to the September 1st, 1960 letter 3 entitled, Monsanto Fluids for Specialized Engineering. 4 A. Yes, I have that. 5 Q. It's Bates stamped 00034 through 38. 6 A. Yes. 7 Q. On Bates stamped 00036 Pydraul F-9 is 8 identified and I think the title of the page is 9 Summary of General Properties of -- and it appears to 10 be some of the Pydraul products, does it not? 11 A. Summary of General Properties of -- and then 12 the rest of it is cut off. I presume it's continued 13 on page 37 but -- 14 Q. Appears to say Selected Functional Fluids, 15 right? 16 A. If in fact it does continue, that's what the 17 caption is, yes. 18 Q. Again, this document doesn't mention that any 19 of these Pydrauls contained PCBs, does it? 20 A. No, sir, it does not. 21 Q. And it does not warn about the environmental 22 potential harm to the environment as a result of these 23 products, does it? 24 A. That's correct. 25 Q. Let's take the final attachment, 00039, A & E Reporting (314) 230-3366 75 WATER PCB-SD0000057077 1 entitled, Know Your Hydraulic Fire Hazards. 2 . A. Yes. 3 Q. Why don't you look through that document and 4 my question is does it mention anywhere in the 5 document or does Monsanto mention anywhere in the 6 document that Pydraul contains PCBs? 7 A. No, sir, it does not. 8 Q. And Monsanto does not warn about any potential 9 harm for the environment as a result of using this 10 product, does it? 11 A. Not in this write-up, no, sir. 12 Q. Let's go to the next document in Exhibit 13 Number 6 which I believe is Bates stamped 00049. 14 A. Okay. I have 49. 15 Q. All right. Do you know, in the first sentence 16 it discusses some newspaper and magazine articles that 17 have been published about polychlorinated biphenyls; 18 do you know what newspapers or magazines that refers 19 to, which articles? 20 A. No, I don't. 21 Q. In the second paragraph it states that it is 22 claimed that the PCBs found in the environment 23 referred to in the earlier paragraph strongly resemble 24 chlorinated biphenyls containing 54 percent and 60 25 percent chlorine by weight. Products which were sold A & E Reporting (314) 230-3366 76 WATER PCB-SD0000057078 1 by Monsanto under the trade names Aroclors 1254 and 2 .1260 contained chlorinated biphenyls. That's what the 3 document says? 4 A. That's correct. 5 Q. In the final paragraph on that page beginning, 6 "We would like to point out the following additional 7 facts," in subparagraph number 2, would you read that 8 for the jury, please? 9 A. Subparagraph number 2 states, "PCBs with a 10 chlorine content of less than 54 percent have not been 11 found in the environment and appear to present no 12 potential problems to the environment." 13 Q. And you've already testified that you don't 14 know if Pydraul 312 or F-9 contain less than 54 15 percent chlorine content by weight. 16 A. I don't know what Aroclor was used in either 17 of those hydraulic fluids from my memory. 18 Q. Assuming that Mr. Bolzle is correct and that 19 it was Aroclor 1248 that was contained in those 20 fluids, would you agree that the portion of the letter 21 you just read states that those products would not 22 pose a problem to the environment? 23 A. That would be an inference that could be drawn 24 from that paragraph. 25 Q. Let's move on to the next letter which is A & E Reporting (314) 230-3366 77 WATER PCB-SD0000057079 1 dated February the 9th, 1970, beginning at Bates 2 stamped 00059. 3 A. I have 59. 4 Q. Through 66. A. Yes. 6 Q. It's somewhat similar to the letter we just 7 reviewed; is it not? 8 A. Yes, they're quite similar, the two letters. 9 Q. At the bottom of that page it said, "We would 10 like to point out the following additional facts," and 11 it states that products such as Pydraul, and it lists 12 a number of Pydraul products, but two of those listed 13 are 312 and F-9, are not formulated with Aroclor 1254 14 or 1260; is that what it says? 15 A. That's what it says, yes. 16 Q. The next paragraph is identical to the one 17 that you just read us. It says, the "PCBs with a 18 chlorine content of less than 54 percent have not been 19 found in the environment and appear to present no 20 potential problem to the environment." That would 21 include Pydrauls 312 and F-9; correct? 22 A. That would be the inference that one could 23 draw from that, yes. 24 Q. And those were two of the products that were 25 used at Russellville? A & E Reporting (314) 230-3366 78 WATER PCB-SD0000057080 1 A. That's what the information on Exhibit 7 would 2 show. That's correct. 3 Q. Let's refer both -- to both letters, the one 4 beginning at 00050, and the one beginning at 59. 5 A. I have those. 6 Q. Generally speaking, it is a letter warning 7 about PCBs with a chlorine content of greater than 54 8 percent; correct? Have I accurately described that? 9 A. That would be the thrust of these two letters, 10 that's correct. 11 Q. And the two paragraphs that appear at the 12 bottom or the paragraphs that appear at the bottom of 13 both, on the first page of both documents, is saying 14 that products with less than 54 percent actually pose 15 no threat at all to the environment. 16 A. Well, I think that perhaps overstates it. It 17 says they appear to present no potential problems to 18 the environment. 19 Q. It's certainly not a warning about products 20 with less than 54 percent chlorine by weight; would 21 you agree with that statement? 22 A. I think you have to interpret the letter as a 23 whole and not take out any one part. 24 Q. You don't agree with that statement? 25 A. I would say that you have to read the letter A & E Reporting (314) 230-3366 79 WATER PCB-SD0000057081 1 as a whole, rather than taking out one part of it, and 2 overall, I would say it's a caution about PCBs in 3 general with qualifications that were current. 4 Q. The qualifications being that the products 5 with less than 54 percent posed no potential problem 6 to the environment? 7 A. Had not been discovered in the environment at 8 that time. 9 Q. Posed no potential problems? 10 A. Had not been discovered in the environment at 11 that time, and the language is, appear to present no 12 potential problem to the environment. 13 Q. Let's go on to the next letter which is dated 14 April 15th, 1971. 15 A. You have the number on that? 16 Q. It's Bates stamped 00068. 17 A. Yes, I have it. 18 Q. The second sentence of that letter states that 19 "certain Pydraul hydraulic fluids did contain PCBs;" 20 does it not? 21 A. Yes, that's what it says. 22 Q. If certain hydraulic fluids did, does that 23 letter imply that certain hydraulic fluids did not 24 contain PCBs? Would you agree with that statement? 25 A. In fact, certain hydraulic fluids did not A & E Reporting (314) 230-3366 80 WATER PCB-SD0000057082 1 contain PCBs. That's an accurate statement. 2 . Q. And it doesn't identify which of the Pydraul 3 fluids actually contained PCBs, does it? 4 A. This letter does not, that's correct. 5 Q. And it does not even mention the Pydraul 6 fluids that we know Russellville used, that being 7 Pydrauls 312 or F-9; correct? 8 A. I believe this letter doesn't refer to any 9 specific Pydraul. 10 Q. Let's go to the next letter. It would be 11 00070, dated August 3rd, 1973. 12 A. Yes, I have it. 13 Q. For the benefit of the jury, do you know if 14 chlorinated components refers to something other than 15 just PCBs? 16 A. Yes, it does. It also refers to 17 polychlorinated terphenyls. 18 Q. What is a terphenyl? 19 A. I'm going to have to defer you to Mr. 20 Papageorge for a description of that, but I will tell 21 you that I understand them to be a chlorinated 22 compound with three benzene rings rather than the two 23 in chlorinated biphenyls, but talk to Mr. Papageorge 24 about that. 25 Q. Do you know if PCTs, which is what I believe A & E Reporting (314) 230-3366 81 WATER PCB-SD0000057083 1 they're known as -- 2 . A. That's correct. 3 Q. -- have been found in the environment? 4 A. Do I know if they've been found? I don't 5 know. 6 Q. Do you know if they're hazardous to the 7 environment? 8 A. Again, I don't know the answer to that 9 question. 10 Q. Mr. Papageorge would be the person? 11 A. I would refer you to Mr. Papageorge. 12 Q. Attached to that letter is a list of Pydraul 13 fluids which contained chlorinated ingredients. 14 A. That's correct. 15 Q. And you've told us that chlorinated 16 ingredients can be something other than PCBs; correct? 17 A. That's correct. 18 Q. So when there is a reference to Pydraul 312 19 and Pydraul F-9, according to this document, it 20 contains chlorinated ingredients. 21 A. That's correct. 22 Q. It does not state which of the Pydraul 23 products contain specifically PCBs, does it, and I'll 24 ask you to refer to the whole document? 25 A. Right. This letter does not distinguish A & E Reporting (314) 230-3366 82 WATER PCB-SD0000057084 1 between those fluids which were formulated with PCBs 2 .and those which were formulated with PCTs. 3 Q. And I believe -- and I've spoken with Mr. 4 Papageorge at another deposition. Do you know what 5 the designations after the numbered letter are? 6 A. My understanding is that designation A after a 7 number indicates that that was a fluid formulated with 8 PCTs. 9 Q. All right. But in this particular document, 10 they're lumped altogether as a chlorinated ingredient, 11 a product containing chlorinated ingredients. 12 A. That's what this document does, yes, that's 13 correct. 14 Q. Let's go to the next document which is Bates 15 stamped 00105, a letter dated January 31st, 1972, from 16 Mr. Howard Bergen. 17 A. Yes, I have that. 18 Q. All right. That letter states that Monsanto 19 has decided to stop using polychlorinated terphenyls 20 as a component in our fluids and that our fluids will 21 contain no chlorinated components after a particular 22 date, that being June 30, 1972; does it not? 23 A. That's correct. 24 Q. Again, it does not mention which of the 25 Pydraul products or formulas contained terphenyls or A & E Reporting (314) 230-3366 83 WATER PCB-SD0000057085 1 biphenyls, does it? 2 A. This letter does not, that's correct. 3 Q. Let's go on to the next letter which is 00107. 4 A. Yes, I have it. 5 Q. March 15, 1972 letter from Mr. Bergen. 6 Attached to that letter is another chart; is it not? 7 A. Yes, captioned Conversion. 8 Q. And it identifies an old product and the 9 convertive new product; does it not? 10 A. That's correct. 11 Q. It doesn't state which of the old products 12 contained PCBs, does it? 13 A. No, sir, it does not. 14 Q. Let's refer to the Bates stamps 00087 through 15 89. 16 A. Yes, I have it. 17 Q. None of these letters were sent to Rockwell 18 Manufacturing at Russellville, Kentucky, were they? 19 A. This letter was not. This letter is addressed 20 to Rockwell International in Columbus, Ohio. 21 Q. I'm sorry. I identified four different 22 letters. 23 A. Oh, you said 87 through 89. That's really 24 two. 25 Q. I'm sorry. A & E Reporting (314) 230-3366 84 WATER PCB-SD0000057086 1 A. 85, 86, 87, 89. 2 _ Q. These are the ones I meant to refer to. None 3 of those four letters are addressed to the 4 Russellville facility, are they? 5 A. No. None of them were addressed to 6 Russellville, Kentucky. 7 Q. And you have no knowledge as to whether anyone 8 at Russellville has seen these? 9 A. These particular letters? 10 Q. Yes. 11 A. I have no knowledge on that topic one way or 12 the other. 13 Q. In Exhibit Number 6 there is a reference to 14 the White Paper and I think we've already identified 15 it today as Bates stamped 0001 through 26. 16 A. That's correct. 17 Q. As with the technical bulletins that I asked 18 about earlier, this document in Monsanto's archives or 19 in its records, there's no indication that this 20 document was ever mailed to anyone at Rockwell; is 21 that fight? 22 A. Other than Mr. Harff in 1988, that would be 23 correct. 24 Q. All right. Let's go off the record. 25 (Discussion off the record.) A & E Reporting (314) 230-3366 85 WATER PCB-SD0000057087 1 Q. (By Mr. Goebel) Let me come back to the White 2 Paper in a moment. 3 Am I correct in my understanding that the 4 labels that are identified in Bates stamped 00140 5 through 147 are the labels that would have appeared on 6 the two different Pydraul products that Rockwell had 7 purchased over the years from Monsanto? 8 A. Yes. Those are the printed labels that we 9 affixed to the containers or my understanding is that 10 those are the labels that were affixed to the 11 containers. 12 Q. And there's nothing in the Monsanto records 13 that would indicate that any labels other than these 14 labels were actually affixed to any of the products 15 that Rockwell purchased at the Russellville plant? 16 A. Well, with one caveat, I guess, and that is 17 this: After about May of 1970 there was an additional 18 stick-on label that was added to all of our 19 PCB-containing products before the then printed supply 20 of labels ran out and was reordered and that contained 21 the warning about environmental consequences. That 22 was a separate stick-on label. In the case of Pydraul 23 products, because we discontinued PCB-based Pydrauls 24 in '71, we did not have a printed Pydraul label 25 containing the environmental warnings. That was A & E Reporting (314) 230-3366 86 WATER PCB-SD0000057088 1 contained in a separate stick-on label. 2 . Q. What is the reason why you didn't produce one 3 of those today? 4 A. Because I overlooked it, and I apologize, and 5 I didn't -- it just occurred to me when we were going 6 through these labels that that stick-on label had not 7 been copied and provided to you. 8 Q. But the labels produced today are the ones 9 that pertain to Pydraul F-12 and the 312, right? 10 A. F-9 and 312, yes. These are the preprinted 11 labels pertaining specifically to F-9 and 312. And I 12 do apologize for that oversight. 13 MR. CUNNINGHAM: Appreciate you remembering 14 when you did. 15 Q. (By Mr. Goebel) Is it your understanding that 16 Monsanto began to put -- let me ask this: Did 17 Monsanto ever include any warning on its invoices? 18 A. Yes. 19 Q. In the invoices that you have produced today, 20 there is no environmental warning on those invoices, 21 is there? 22 A. That's correct. That was a rubber stamp that 23 was put on a customer's copy of the invoice. It 24 wasn't put on our file copy. 25 Q. So in your records you have no evidence of A & E Reporting (314) 230-3366 87 WATER PCB-SD0000057089 1 what that label or warning label was, and at least on 2 the invoices in your file, that warning label does not 3 appear. 4 A. I have in my files a copy of the rubber stamp 5 impression but I do not have a copy of any invoice 6 sent to Rockwell that bears that rubber stamp 7 impression. 8 Q. All right. Do you know whether waste waters 9 which contained PCBs could have been disposed of in a 10 holding pond? 11 A. I'm sorry, you're out of my area and knowledge 12 of expertise. 13 Q. Mr. Papageorge would be the one to ask? 14 A. Mr. Papageorge would be knowledgeable in that 15 area. 16 Q. I think that's all I have at this time. Thank 17 you. 18 FURTHER REDIRECT EXAMINATION 19 BY MR^ BOLZLE: 20 Q. Sir, let me just ask you some basic 21 bookkeeping questions. First of all, you said there 22 was a stick-on label? 23 A. That's correct. 24 Q. What was that stick-on label applied to again? 25 A. The product container. A & E Reporting (314) 230-3366 88 WATER PCB-SD0000057090 1 Q. Container of the products sent to Monsanto's 2 customers? 3 A. That's correct. 4 Q. You inadvertently failed to produce that 5 today; is that correct? 6 A. That's correct. 7 Q. Would you be willing to send a copy of that 8 label to the court reporter and so that we can mark 9 that as the next exhibit number? 10 MR. GOEBEL: Well, I wouldn't have a chance to 11 cross-examine him about it so I would object to just 12 attaching an exhibit that I haven't seen yet. 13 MR. BOLZLE: Well, maybe when we come back to 14 talk to Mr. Papageorge - 15 MR. GOEBEL: Maybe we can introduce it there. 16 Q. (By Mr. Bolzle) But if you would go ahead and 17 provide a copy just to the court reporter so that we 18 could see that it would be attached and marked 19 Plaintiffs' Exhibit 9. 20 MR. GOEBEL: I object to it being attached to 21 this deposition unless I have a chance to 22 cross-examine this witness about it. 23 MR. BOLZLE: Well, your objection is 24 preserved. 25 Q. (By Mr. Bolzle) Would you be willing to send A & E Reporting (314) 230-3366 89 WATER PCB-SD0000057091 1 a copy of that to the court reporter? 2 MR. GOEBEL: I don't think you can introduce 3 an exhibit that's not here today. 4 MR. BOLZLE: I think I can introduce anything 5 I want to because it's my deposition. As to whether 6 it's going to be admissible in court is another 7 question, but this is, to this extent, whether this is 8 a trial deposition or discovery deposition as it 9 relates to this document we're talking about now is 10 something we can argue about later, but I want to get 11 the document. 12 MR. GOEBEL: We're going to be coming back and 13 talking to - 14 MR. CUNNINGHAM: But this is a gentleman who's 15 here to authenticate and speak as to when particular 16 documents are generated and issued and you have every 17 opportunity to cross-examine as to whether or not this 18 document irrespective of its language would have been 19 transmitted to Rockwell. 20 MR. GOEBEL: Mr. Papageorge will be able to. 21 MR. CUNNINGHAM: He won't have knowledge 22 whether or not it went to Rockwell as this person 23 might, as far as when they started using it and so on. 24 The language, yes, but as to what that document was 25 affixed to and when, I think this gentleman probably A & E Reporting (314) 230-3366 90 WATER PCB-SD0000057092 1 has a better idea. 2_ THE WITNESS: I would disagree with that. Mr. 3 Papageorge is very knowledgeable. In fact, he has 4 personal knowledge on these topics. 5 Q. (By Mr. Bolzle) Mr. Bistline, all I'm asking 6 is would you be able to make a copy of that label and 7 send it to the court reporter so she can mark it 8 Plaintiffs' Exhibit 9 and attach it to this 9 deposition. 10 A. If that's what the consensus is. 11 MR. GOEBEL: That's not what -- 12 THE WITNESS: I would be willing certainly to 13 provide all of this counsel in the room but I'm not 14 going to get into a fight about whether or not it's 15 appropriate to mark it or not. 16 Q. (By Mr. Bolzle) That's not a fight you need 17 to get into. It's between us. It's my deposition and 18 I'm just asking you would you be willing to send a 19 copy of that to the court reporter? 20 A. I'll send a copy to the court reporter. 21 Whether it's appropriate to mark it or not is 22 something you would have to fight about. 23 Q. Okay. If you would agree to send a copy of 24 that label to the court reporter, I would appreciate 25 it, and as I understand it, you have agreed to do so A & E Reporting (314) 230-3366 91 WATER PCB-SD0000057093 1 on the record. 2. And I'11 ask the court reporter to mark that 3 as Plaintiffs' Exhibit 9 and then we can argue about 4 that with the judge. 5 MR. GOEBEL: Show my objection. 6 Q. (By Mr. Bolzle) Likewise, as I understand it, 7 you've discussed with Mr. Goebel a rubber stamp 8 concerning a warning that was applied to invoices sent 9 to Monsanto customers. And you have an impression of 10 that rubber stamp; do you not, sir? 11 A. Yes, I do. 12 Q. Could you send a copy of that rubber stamp 13 impression to the court reporter? 14 MR. GOEBEL: I should be permitted an 15 opportunity to cross-examine this witness about 16 something in his possession, including the labels that 17 you've asked her to attach as 9, and including a copy 18 of this impression that I assume you're going to ask 19 her to mark as Exhibit 10. 20 MR. BOLZLE: Uh-huh. 21 MR. GOEBEL: And it is -- it's unfair to 22 introduce an exhibit at a deposition that neither 23 party has seen, none of the parties has seen, and 24 without an opportunity to cross-examine. 25 MR. BOLZLE: I'm just trying to save your time A & E Reporting (314) 230-3366 92 WATER PCB-SD0000057094 1 and mine, Mr. Bistline. 2 MR. GOEBEL: Well, this is not a timesaving - 3 question of saving time. It's whether it's 4 appropriate under the rules and I believe you know 5 it's not. 6 Q. (By Mr. Bolzle) Would you be willing to send 7 a copy of that impression of that rubber stamp to Kim, 8 our court reporter? 9 A. I will send a copy of it to the court 10 reporter. 11 Q. Thank you, sir. 12 A. As well as to counsel. I mean if you want a 13 copy of it, I'll send it to you, too. 14 Q. I think to minimize hassle to you, you can 15 send it to Kim. 16 MR. GOEBEL: I would like a copy of both. 17 THE WITNESS: I'll send you a copy. 18 MR. BOLZLE: And I'll ask the court reporter 19 to mark that as Exhibit 10. 20 Q. (By Mr. Bolzle) When was that rubber stamp 21 used? 22 A. I'm going to have to defer to Bill Papageorge 23 on that for precise date. My understanding is in the 24 '70 and '71 time period. 25 Q. And what was the impression put on? A & E Reporting (314) 230-3366 93 WATER PCB-SD0000057095 1 A. It was the copy of the Monsanto invoice sent 2 to Monsanto's customers. 3 Q. For what products? 4 A. For all products containing PCBs. 5 Q. And that would include Pydraul 312? 6 A. It would, yes. 7 Q. Do you recall what it says? 8 A. Not precisely, no. 9 Q. Can you give me the gist of that? 10 MR. GOEBEL: At this time you're asking him to 11 guess what it says? 12 THE WITNESS: I would prefer not to. I prefer 13 just to provide you with a copy of it so you can see 14 for yourself exactly what it says. 15 MR. GOEBEL: I'm going to object to it on the 16 additional basis that you haven't laid a foundation to 17 even admit it if it were sitting here today. 18 Q. (By Mr. Bolzle) Just so we're clear and I 19 want to make sure we're clear on the record, let me 20 look at Plaintiffs' Exhibit 8. Is that in front of 21 you, sir? Okay. Can you tell me, and I apologize if 22 I asked you this question before, but can you tell me 23 the coded page numbers of the labels in Plaintiffs' 24 Exhibit 8 as opposed to the technical? 25 A. The labels are numbered ROCW 00140 through 147 A & E Reporting (314) 230-3366 94 WATER PCB-SD0000057096 1 and the technical bulletins are ROCW 00148 through 2 266. 3 Q. Let me refer you to -- back to one of the 4 attachments to Mr. Duesenberg's letter. This would 5 bear -- this would be attached to the letter having 6 the first page number 00069. 7 A. Yes, I have that. 8 Q. Let me ask that you turn to page number 00072. 9 As I understood your testimony before, the products 10 listed under the heading Pydraul Fluids Which 11 Contained Chlorinated Ingredients listed products 12 which contained either PCBs or PCTs; is that right? 13 A. That's correct. 14 MR. GOEBEL: I was going to object it was a 15 mischaracterization but now that you said it's not. 16 Q. (By Mr. Bolzle) And as I understood your 17 testimony before, those that contained PCT have a 18 suffix of capital A? 19 A. My understanding is that those fluids with the 20 capital A contain PCTs. 21 Q. And those without the suffix capital A contain 22 PCBs? 23 A. I believe that's correct. That's my 24 information, in any event. 25 Q. Did your staff's research of available A & E Reporting (314) 230-3366 95 WATER PCB-SD0000057097 1 documentation and correspondence between Rockwell and 2 Monsanto turn up any documents from Rockwell to 3 Monsanto asking for an explanation of the distinction 4 between those product numbers or names? 5 A. No. 6 Q. Did that investigation or that research turn 7 up any documents from Rockwell to Monsanto asking any 8 questions about the PCB contents of it, the product it 9 was purchasing from Monsanto? 10 A. Other than the request for product composition 11 on the letter from the insurance company from 1960, 12 no. 13 Q. Turning back to the letter that was attached 14 to Mr. Duesenberg's letter, first page number of which 15 is 00058. 16 A. Yes, I have that. 17 Q. Now, that letter discusses, does it not, a 18 number of Aroclor and Pydraul formulations including 19 1254, 1260, Pydraul 312 and Pydraul F-9; does it not? 20 A. Yes. Those four items are mentioned in this 21 letter, among others. 22 Q. Let me ask you to turn to the next page of 23 that letter. In the paragraph that says, and I quote, 24 "We feel that all possible care should be taken in the 25 application, processing and effluent disposal of these A & E Reporting (314) 230-3366 96 WATER PCB-SD0000057098 1 products to prevent them" --from -- "becoming 2 environmental contaminants." Is there any limitation 3 of that general warning to any one of the products 4 mentioned on the preceding page? 5 MR. GOEBEL: Object to the characterization. 6 THE WITNESS: Mr. Bolzle, I think you have to 7 take the letter and interpret it as a whole and 8 obviously you'll draw whatever inferences from it you 9 want. 10 Q. (By Mr. Bolzle) All I'm asking is that 11 paragraph, from the second page of that -- is there 12 any limitation of that general warning in that first 13 sentence to Aroclors 1254 and 1260? 14 MR. GOEBEL: He just answered your question. 15 Q. (By Mr. Bolzle) No? 16 A. That paragraph does not specifically refer to 17 1254 -- Aroclor 1254 and 1260. 18 Q. Also the last sentence of that paragraph I 19 believe says that this article, the Chemical Week 20 article attached to that letter, reflects that "good 21 manufacturing practice in the future may require that 22 no products used by any company should find their way 23 into waterways." Do I read that correctly? 24 A. That is what that sentence says, correct. 25 Q. Now, there was discussion with regard to A & E Reporting (314) 230-3366 97 WATER PCB-SD0000057099 1 Defendants' Exhibit A as well as attachments to the 2 1960 letter concerning PCBs. 3 MR. GOEBEL: Excuse me. It did not refer to 4 PCBs. 5 MR. BOLZLE: I'm sorry. You're right. 6 Q. (By Mr. Bolzle) Concerning Pydrauls, the fact 7 that those attachments did not, in so many words, make 8 any reference to environmental hazards or 9 environmental concerns. Those attachments did make 10 reference, did they not, to irritability to the eyes 11 and skin? 12 MR. GOEBEL: I object to the form of the 13 question. 14 THE WITNESS: That is what they say, Mr. 15 Bolzle. I think it talks about irritation to the eyes 16 and potentially to the skin on repeated and excessive 17 contact, some formulations like that. 18 Q. (By Mr. Bolzle) In any event that's not 19 something that you would ingest, would it? 20 A. I would not ingest any industrial chemical. 21 Q. No further questions. 22 MR. CUNNINGHAM: None. 23 24 25 A & E Reporting (314) 230-3366 98 WATER PCB-SD0000057100 1 RECROSS-EXAMINATION 2 BY MR^ GOEBEL; 3 Q. Let's go back to letter 00072. It is the 4 attachment to a letter dated August 3rd, 1973. The -- 5 I'm going to call it chart, which states that -- 6 identifies the Pydraul fluids which contain 7 chlorinated ingredients. Mr. Bolzle asked you which 8 ones contained PCTs and which ones contained PCBs by 9 the letter designation. But looking at this, in 1973, 10 person receiving that, not knowing what the 11 designations were, would not know which ones contained 12 PCBs, would they? 13 A. Not without further information or unless that 14 person knew already. 15 Q. And in none of the documents we've seen so far 16 today, they've -- have made the distinction between 17 which Pydraul fluids contained PCBs and which ones 18 contained PCTs, have they? 19 A. I don't think any of the documents, without 20 looking back at everything we've got here, I don't 21 think any of the documents that we've got here make 22 the distinction between which Pydrauls were PCB and 23 which fluids were PCT fluids. 24 Q. Let's refer back to 00058. 25 A. I have it. A & E Reporting (314) 230-3366 99 WATER PCB-SD0000057101 1 Q. Mr. Bolzle asked you to draw some conclusions 2 about the last paragraph of that letter. The focus of 3 this letter, is it not, is to respond to some 4 newspaper articles about the claims made about 5 polychlorinated biphenyls containing 54 to 60 percent 6 chlorine by weight; is that correct? 7 A. That is the reference in the first and second 8 paragraphs, yes. 9 Q. I believe you've testified today that the 10 exhibit that will be attached to this deposition as 11 Exhibit Number 10 which will be the impression of the 12 rubber stamp, that you don't really know the actual 13 dates when that was used by Monsanto? 14 A. The specific date, no. 15 Q. And it would have taken someone in a clerk's 16 office that mailed out the invoice to actually put the 17 stamp on the customer's copy of the invoice, right? 18 A. That's my understanding. 19 Q. And in the documents that we have, the copies 20 of the invoices that Monsanto has in its records 21 today, that stamp doesn't appear on those invoices. 22 A. That's correct. It was not affixed to 23 Monsanto's copy of invoices. 24 Q. I think that's all I have. 25 MR. GOEBEL: You want to read and sign? A & E Reporting (314) 230-3366 100 WATER PCB-SD0000057102 1 THE WITNESS: Yes. 2 (Whereupon the deposition was concluded and 3 the witness was excused.) 4 (Plaintiffs' Exhibit Numbers 9 and 10 marked.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A & E Reporting (314) 230-3366 101 WATER PCB-SD0000057103 ORIGINAL 1 I, Thomas M. Bistline, do hereby state that I 2 - have read the foregoing questions and answers 3 appearing in this transcript of my deposition, Pages 1 4 through 101? that this is a true and accurate 5 (corrected) report of said answers given in response 6 to the questions appearing herein. 7 8 9 10 11 CERTIFICATE STATE OF MISSOURI ) 12 ) ss. COUNTY OF ST. LOUIS ) 13 Before me personally appeared Thomas M. Bistline 14 to me known to be the person described in and who executed the foregoing instrument and acknowledged to 15 and before me that she executed the said instrument in the capacity and for the purpose therein expressed. 16 WITNESS my hand and official seal this 17 1993 . JOSEPHINE S. NIBtOCK 18 Harm public state of mssoura My Commission expires ST.L0UI9CCUNTY . 19 -----------------mcamiauMbP. jam. is.icss 20 21 22 State of Missouri 23 24 25 A & E Reporting (314) 230-3366 102 WATER PCB-SD0000057104 1 NOTARIAL CERTIFICATE 2 STATE OF MISSOURI ) 3 ) ss. 4 COUNTY OF ST. LOUIS ) 5 6 I, Kimberly A. Anderson, a Certified Court Reporter and Registered Professional Reporter of 7 A & E Reporting, a Notary Public in and for the State of Missouri, do certify that pursuant to Notice at the 8 Marriott-Airport, 1-70 at Lambert Airport, on July 23rd, 1993, in St. Louis, Missouri, 9 THOMAS M. BISTLINE 10 came before me, was by me duly sworn to testify the 11 whole truth of his knowledge of the matters in controversy aforesaid, was examined and his 12 examination then written in shorthand by me and afterwards transcribed, having the signature of the 13 witness and said deposition is returned herewith. 14 I further certify that I am not counsel, attorney, or relative of either party, or clerk or 15 stenographer of either party, or of the attorney of either party, or otherwise interested in the event of 16 this suit. 17 I further certify that Plaintiffs' Exhibit Numbers 1 through 10 and Defendants' Exhibit A 18 retained by me and attached to the original transcript to be filed with the court. 19 GIVEN under my hand and notarial seal at my 20 office in said city and state, this 17th day of August, 1993. 21 My commission expires October 15, 1996. 22 23 Kimberly A. Anderson Notary Public - State of Missouri 24 County of St. Louis 25 A & E Reporting (314) 230-3366 103 WATER PCB-SD0000057105 WITNESS: THOMAS M. BISTLINE CORRECTION SHEET In Re: Commonwealth of Kentucky, et al., v. Tim Shook, et al., #86~CI"1566 Upon reading deposition and before subscribing thereto, deponent indicated the following changes should be made: Page Line 3 Should read: Reason assigned for change: typo Page V*? Line ) Should read: fa&ld- Reason assigned for change: fftitspows or typo Page $X- Line / Should read: IW\/QScrf\ TI 'hwi-cCtkest *i$arbl&fck typo 9Reason assigned for change: Page ^<2- Line <L3 Should read: T~k&~ckcr Reason assigned for change: typo Page 6 ^ Line p Should read: j im Reason assigned for change: typo Pag* 5"! Line 3.3 should read: bdl&T Reason assigned for change: typo 7Page /aO Line Should read: fftXtWA 'jhctu- Reason assigned for change: /yiAs^>/u, or typo KAA WATER PCB-SD0000057106