Document EdzvZpLLxM0gkgmNMaGnzdOb

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS . 2 ST. CLAIR COUNTY 3 FRANCES E. KEMNER, et al. 4 Plaintiff, 5 vs. 6 MONSANTOCOMPANY, 7 Defendant. ) ) ) ) ) ) ) ) ) No.80-L-970 8 Before the HON. RICHARD P. GOLDENHERSH, Judge 9 10 11 REPORT OF PROCEEDINGS 12 JURY TRIAL 13 December 16, 1985 14 15 16 APPEARANCES: 17 MR. REX CARR & MR. JERRY SEIGFREID, Attorneys at Lav; Appeared on Behalf of the Plaintiff. 18 19 MR. KENNETH R. HEINEMAN & MR. JOSEPH NASSIF, Attorneys at Law 20 Appeared on Behalf of the Defendant. 21 22 23 MARSHA SCHNIPPER 24 Official Court Reporter 1 INDEX 2 DR. FRANK DOST .................... REDIRECT EXAMINATION BY MR. HEINEMAN 3 RECROSS EXAMINATION BY MR. CARR 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 PAGE 2 39 -- -- 1 1 EXHIBITS Page 2 Identified 3 EXHIBITS SUBMITTED ON BEHALF OF THE PLAINTIFF: 4 Plaintiffs* Exhibit No.: 5 1646A 143 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page Admitted 157 2 1 BE IT REMEMBERED AMD CERTIFIED that heretofore', on 2 to-wits December 16, 1985, being one of the regular judicial ` 3 days of this Court* the matter as hereinbefore set forth came i 4 on for hearing before the Honorable Richard P. Goldenhersh, a 5 Judge in and for the Twentieth Judicial Circuit of the State 6 of Illinois, Belleville, St. Clair County, Illinois, and the 7 following was had of record, to-wit: I* 8 9. * * * * * * * 10 11 {The following proceedings were had in open Court.) 12 THE COURT: Morning. 13 FRANK DOST, 14 being called on behalf of the defendant, having been first 15 duly sworn, testified as follows: 16- 'REDIRECT EXAMINATION 17 BY MR. HEINEMAN : -, 18 Q. Dr. Dost, I'd like to ask you about the subjct of 19 photodegradation, sir, and ask you if you recall when Mr. 20 Carr was examining, you on that subject and suggesting to you 21 that Dr.. Zabik had a calculated 36-hour photodegradation 22 period from a theory that the loss of the first ten percent 23 of the TCDD in the sunlight would hold true for the rest of 24 the time, and that the paper.he relied on did, not actually I3 1 substantiate his calculation. Do you recall that testimony, 2 sir? * 3 A. Yes, I do. ; 1 ! 4 Q. Now, I'd like you to assume, sir, that Dr. Zabik 5i actually testified as follows: Beginning with the first 6 answer on Page 96 on October 30th, 1985. I usejthe 36 hours 7 . from the extrapolation of that graph, yes. Question: And 8 that graph doesn't in fact hold, support the theory of the 9 ten percent, does it*. sir? Answer: It does for the first 10 half life,, which is what we use. Question: Not for on soil. 11 Answer: For on soil it would be much faster if I 12 used the ten percent half life.. .Question: .That's what I'm 13 talking about. Your theory doesn't hold true? Answer: No, 14 it would be faster if we were to use the ten percent. 15 And ask further, sir, that you assume that he 16 testified as follows also on October. 30, 1985 at Pages 158 17 and 159. Question: And I thought you said something about 18 there is any other method. Well, explain the method that is i9 used to your knowledge by experts in photochemistry in 20 establishing half lives. Answer: Yes. Whenever we do a 21 half life, we run the reaction to ten percent completion. 22 generally run it past that, but we only use the'first ten 23 percent of the reaction, because that is the reliable portion l 24 of the.reaction from many physical chemical properties of 4 I 1 that type of a reaction. We then plot the data r and we also 2 determine the first order of rate constant for it and then we i 3 can determine the half lives. In the case of photochemistry 4 these reactions are first order, pseudo first order really. 5 ^Question: And the calculations that you did in 6 this case with regard to the Crosby data did they use the 1 first ten percent? Answer: No, I did not. That was the 8 steepest portion of the curve so to be conservative I used 9 the next slope which was a lot slower. 10. Question: So to be conservative you used-- you 11 didn't use the first ten percent? Answer: No, I did not. 12 Now, Dr. Dost, does Dr. Zabik's testimony indicate 13 to you that he used a ten percent projection in reaching his 14 36-hour half life? 15 A. No, sir, it does not. 16 Q. Are you familiar with the Crosby article which Dr. 17 Zabik was talking about? 18 A. Yes, sir, I believe I am. 19 MR. HEINEMAN: Do you have Defendant's Exhibit 20 1253? I have another copy of it if.Tammy -- r 21 ' THE CLERK: I've got it now. 22 MR. HEINEMAN: Thank you. That's the one. 23 , Q. Sir, let me hand you what's been marked as 24 Defendant's Exhibit 1253 and ask-you if that's the Crosby 5 1 article that you're familiar with? ii 2 A. Yes, sir, it is. .) 3 i Q. Now, directing your attention to Page 9, sir. What 4 do you see there on Page 9? 5 MR. CARR': Your Honor, this is suggesting the 6 answer desired. 7 THE COURT: Objection sustained. Would you rephrase 8 the question please. 9 Q. Would you tell the jury what there is on Page 9 10 there, sir? 11 A. Page 9 contains two.figures, Figure 7, which is 12 photoreduction rate of TCDD on leaves and soil treated with 4 13 Agent Orange, and another one, photodecomposition on grass 14 after treatment with an olive oil emulsion of TCDD. Figure 7, 15 , I think, is the figure that relates to the issue you're -- in 16 question. 17 Q. Now, sir, do-you have an opinion if Dr. Zabik had 18 used the rate of photodegradation at the time only ten 19 percent of the TCDD had photodegraded, do you have an opinion 20 what the half life calculation would have been, sir? 21 A. Yes. 22 Q. What is that, sir? 23 A. Well, using that would come t o about a half -- a 24 half time of about five hours if it used the first -- the . ; i iii ) I6 i ;I '"i i <* L. 1 data representing the degradation of the first ten percent of 2 the TCDD that was placed on the soil. 3 Q. And what half life calculation rate did he actually 4 come to? 5 A. He used the -- he used a figure of 36 hours. 6 Q. Does that indicate anything to you, sir, with 7 respect to what portion of the curve for photodegradation he 8 actually used? 9 A. ,Well, he used more than ten percent. He used -- he 10 took -- the experiments ran for six hours and he took the 11 data for the entire six hour period and used that to project 12 a half time of 36 hours. 13 Q. What happens to the rate of photodegradation, sir, i 14 after a period of time according to the Crosby article? 15 A. Well, it appears that there is an initial 16 relatively rapid conversion, and then it slows down, and from 17 the data that appears here it appears to be a linear -- 18 linear degradation, that is,, all of the points are in a 19 straight line after the- the first ten percent. 20 Q. Thank you, sir. Now, sir, I 'd like -- 'do you 1i 21 recall on direct examination being asked, sir, about two ' 22 separate hypothetical questions? fJ 23 A. Yes, I do. ii 24 Q. Do you recall what.distinguished one question from 7 1 the other? 1I 2 A. Well, the two questions differed essentially in 3 that one of them assumed the various cleanup operations and 4 the other -assumed no cleanup at all. 5 - Q. .And did you give your opinion based upon the 6 assumptions in'each question? 7 A. Yes. 1: 8 Q. Nov/, sir, do you recall yotur cross-examination by 9 Mr. Carr on that subject? 10 A. Yes, I do. 11 Q. Do you recall his cross-examining you with respect 12 to whether you had ever known about a contamination level 13 under the passing track having been found at 9.2-percent of 14 OOP in it? `` 15 A. Yes, X remember that. 16 Q. And do you recall your answer to that question, 17 sir, or excuse me, that he went on in another point and asked 18 you that they tested 'the passing track after the;initial 19 cleanup and found a higher level of contamination of OCP in 20 the passing track than the figure that was given to you in 21 the hypothetical question. Do you recall that, sir? 22 A. Yes, I remember that. 23 Q. Do you recall what your answer was? 24 A. I don't recall precisely, but I believe that I i8 1 remarked that that was after .'the -- after the spring rains or 2 spring thaw. 3 , Q. ,Information that arose iin the spring after the 4 thaw? 5 A. Something of that sort, yes. 6 Q. Now, were you aware, sir, of the 9.2 percent of OCP t 7 and phenol being found in-the passing track after the initial 8 cleanup and spring thaw? 9 A. Well, I do remember hearing something about that, 10 yes. 11 Q.' Now, based upon that information -- 12 MR. CARR: Your Honor, I object unless a source is 13 shown. It's hearsay. 14 THE COURT: I'm sorry. 15 MR. CARR: My objection is it's hearsay, he's 16 basing' hi`s opinion on hearsay. 17 THE COURT: Gentlemen, could you approach the bench 18 for a minute. 19 (At this time a conference was had at the bench out 20 of the hearing of the jury.) 21 THE COURT: Your objection is as to -- I couldn't 22 hear what you said. 23 MR. CARR: Mr. Heineman established that the 24 witness has heard somewhere that there was 9.2 percent in the 9' 1 passing track, and counsel now is asking a question now based i, 2 on that .information, and that's asking for opinion based upon 3 hearsay. Counsel should give that to him as a fact in this 4 case if he wants him ,to base an opinion on it, not on 5 something that he may have heard elsewhere. 6 THE COURT: Any objection to that? 7 MR. CARR:' Source of where it came from. 8 MR. HEINEMAN: What I just read"to him was Mr. Carr 9 asking him if he knew that there was a fact in this case of 10 9.2 percent. . T U MR. CARR: You're, not acknowledging to the witness 12 that that is- a fact in this case. 13 THE COURT: Well, no, that's different. First 14 you've got that and then you've got him hearing it. I think 15 if you want to use it, you have to give it to him as a fact' 16 for our. testimony. I think the objection is'well taken. 17 MR. HEINEMAN: This is Ohneck's testimony, Judge. 18 MR. CARR: He's not. identifying where he heard it 19 from. All he said was he heard it somewhere. 20 THE COURT: Right. 21 MR. HEINEMAN: Well, okay, sure. I thought that was 22 what we had already done. 23 THE COURT: No, I don't think so. 24 (The following proceedings were had in open Court.,) 10 1 Q. Dr. Dost, I'd like,.you to assume as' a fact, sir, 2 that there's been testimony that that 9.2 percent of phenol 3 in OCP was found in the passing track. You do assume that to 4 be true? 5 A. 1. Yes. 6 Q. ,All right, sir. Now, doe's that, fact;, sir, have any 7 effect on the answer ,you gave to either the first or the ' 8 second hypothetical question? 9 A. No, sir, not at all. 10 Q. Now, based upon the information that was given to 11 you, sir, and assuming what I've just told you today about 12 the 9.2 percent, had you assumed that all of the contaminated 13 material was removed from the passing track? 14 A. No, sir. 15 Q. Now, what is the information that you have assumed 16 to be true with respect to how the -- what removal was done 17 in the passing track? 18 A. Well, my assumption was that the material was taken 19 down, I don't recall, eight, ten inches below the ties in 20 that area, it was under the passing track. 21 MR. CARR: I object unless he states the source of 22 where that information has come from. There's no such 23 information like that in this case. 24 THE COURT: Could you rephrase your question please. 11 1 Q. Let me ask you to assume this as a fact, sir, that 2 all the material between the'passing track ties was removed 3 to a depth of eight to ten inches in the western 150 to 200 4 feet of the spill area, where the surface of the snow and the 5 ballast of the passing track had been visibly discolored by 6- the spilled chemical, all right, sir? 7 A, Yes. 8 Q. It was not eight to ten below the ties, it was a 9 total of eight to ten inches? 10 A. I see. 11 Q v - Okay. Now, assuming that to be true, sir, does 12 that fact cause you to change in any way your response to 13 either of the hypothetical questions that I asked you? 14 A . ' No, sir, it does not. 15 Q. Now, I'd like to ask you some questions with 16 respect to your cross-examination by Mr. Carr with respect to 17 what .Mr.- Shroy said on volatilization. All right, sir? 18 Now, do you recall Mr. Carr discussing with you the 19 proposition.that the TCDD would turn into a gas below the 20 surface where the soil meets the ballast and that it would 21 rise through the ballast as a gas and not attach to the 22 material in the ballast as it moved or rose after the OCP and 23 phenol had been removed from the soil. 24 A. Yes, sir,; I recall that. 12 1 Q. .All right. Now, sir, I'd like you to assume the 2 following testimony from Mr. Shroy, Page 177 on September 3 12. Question: And if any of the TCDD were in that soil and 4 that soil was removed, would the TCDD be removed? Answer: 5 Yes, sir. Question: And,if it was.removed, would it be 6 available to volatilize? Answer: No, sir. 7 And if clean dirt is then placed back upon the top 8 of that or clean ballast -- Answer: Yes, sir. And if there 9 was any down below the depth to where they took it, would the 10 TCDD in order to volatilize have to work its way up through 11 that area? Answer: Just like at Eglund, yes, sir. 12 Now, what is your understanding, sir,-based upon 13 Mr. Shroy1s testimony as to what would happen to TCDD as -- i 14 if it were covered by new ballast? 15 A. Well, it would -- there would be movement within 16 that soil of -- of,'molecules of TCDD. It would be random " 17 movement, it would be exceedingly slow. He referred to 18 Eglund, and compared it to the situation at Eglund, and in 19 that experiment the material that was placed quite some years 20 ago and then studied later that was placed at a depth of, I 21 think, five inches in that -- in that soil still had not 22 emerged, had not reached the surface in 12 years, in the 12 23 years that intervened between the time it was placed and the 24 time that it was sampled. The movement upward in that -- in 13 1 that soil and ballast and so forth is going to be very, very, 2 very slow.' 3 Q. Do you have an opinion, sir, as to what would 4 happen to TCDD in terms of photodegradation in the top two 5 millimeters of soil?" 6 A. I think that it would be broken down. 7 Q. Or ballast? 8 A. Or ballast or whatever the matrix is. ,1 would 9 expect that in that zone that photodegradation would 10 certainly take place. 11 Q. Now, do you have an opinion, sir, as ,to how long it 12 would take any TCDD in the passing track to volatilize up 13 through the ballast and reach that two millimeter zone if it 14 were covered 'by eight to ten inches of clean ballast? 15 MR. CARR: Objection, Your Honor, this witness has 16 shown no expertise in this area at all. 17 THE COURT: Gentlemen, could you approach the bench 18 please. 19 (At this time a conference was had at the bench out 20 of the hearing of the jury.) 21 THE COURT: I think you have to make that kind of 22 objection up here. 23 MR. CARR: Yes, that's right. 24 THE COURT: Can you continue the objection. 14 1 MR. CARR: Yes, my objection is there1s been no 2 qualification of this witness as an expert in this area. As 3 Dr. Shroy', Mr. Shroy can give an opinion -- there1s been 4 absolutely no qualification to answer such a question or give 5 such an opinion. It calls for an expert opinion that he's not 6 qualified to give. J MR. HEIMEMAN: Your Honor, what this witness has 8 clearly stated that he*s, considering here is the -- is the 9 testimony of Mr. Shroy and particularly in connection v/ith 10 the Eglund Air Force Base matter and his view based upon what 11 Mr. Shroy said is that clearly if it took in 12 years it 12 hasn't passed through four or five inches of sand, I think he 13 can in his own mind make a pretty simple calculation of what 14 eight to ten inches would do in terms of the time that it 15 would take to get up through that and that's all he's talking 16 about. He's not basing it upon his own work. He's basing it 17 upon what Shroy had to say. 18 MR. CARR: You're asking him for an expert opinion 19 that would counter or support either way what Shroy has said, 20 and he has no absolutely no information, no expertise to base 21 it upon. 22 THE COURT: I agree. I think it does call for that 23 kind of opinion. I agree that you accurately described what 24 he's doing, but I think he does not have sufficient expertise 15 1 as demonstrated in this case to render that kind of opinion 2 in this trial, so taking your description as to what he did, 3 the objection is sustained. 4 (The following proceedings were had in open Court.) 5 Q. Doctor, 1'd`like you to assume that Mr. Kopis of 0. 6 H. Materials testified in this case several weeks ago that 0.. 7 H. Materials poured a bentonite sealer on top of the passing, 8 track in the spill area. Will you assume that, sir? 9 A. Yes. 10 Q. Now, now, do you further recall in your examination 11 by Mr. Carr his discussing with you that if a material were 12 present in the ballast occupying the air spaces below the 13 surface, and using OCP and phenol as an example, that it 14 would be more difficult for TCDD to volatilize based on what 15 Mr. Shroy had said? 16 A. Yes. 17 Q. Now, sir, what is a bentonite sealer? 18 A. Bentonite is, I believe, it's a diatomaceou's earth, 19 which^is a substance that is a residue of the skeletons of, 20 ancient one-celled animals that lived in the sea in places 21 where the seabed, where the sea has receded from the land and 22 left the old seabed you find deposits of this material. Its 23 value is that it is a very fine and has an enormous surface 24 area and will adsorb, ad, a-d-, adsorb to its surface 1 enormous amounts of organic materials.. 2 Q. Now, what would the -- do you have an opinion, sir, 3 asf to what would the addition of a bentonite sealer to the 4 bal\ilast have -- 5 MR. CARR: Objection, Your Honor, inadequate 6 foundation. 7 THE COURT: Objection sustained. 8' Q. Would a -- would bentonite tend to fill spaces, 9 sir? 10 ^ MR. CARR: Objection, Your Honor, leading and 11 suggestive. ,12 Q. What would bentonite tend .to do, sir, if you poured 13 it on top of rock? 14 MR. CARR: Objection, Your Honor, inadequate 15 foundation for knowledge. 16 THE COURT: Objection sustained. 17 Q. Have you ever seen bentonite, sir? 18 A. Yes, I have. 19 Q. How have you seen it> in what manner have you seen 20 it? ` 21 A. I used to keep it in my laboratory,, as a matter of 22 fact, as a substance to use if -- if we spilled solvents in 23 the laboratory. 24 * Q. How v/ould you use it? 17 1 A. Well, it's -- in many respects it's like kitty 2 litter, but kitty litter is heavy grains. This material is 3 very fine, and if you have a spill, you can cover it with 4 material, and it'll absorb a .substantial amount of organic 5 material and keep it from -- it makes it easier to pick it 6 up, keeps it from spreading around the laboratory. 7 Q. `Now, sir, you have .been to Sturgeon, have you not, 8 sir? 9 A. Yes, I have. 10 Q. Have you seen the ballast on the railroad track out 11 there? 12 A. Yes. 13 Q. Have you seen the ballast on the passing track? 14 A. Yes. 15 Q. And in the main right-of-way? 16 A. Yes. 17 Q. And have you seen the ballast in the passing track 18 -- what area have you looked at? 19 A. Well, I walked the whole length of both tracks from 20 the -- I don't remember what' the name of the street is, the 21 first street that the tracks cross in the town out to the-^22 some distance past the site where I was told the car came to 23 rest, past -- there is a construction company out there, 24 walked past, well past that. There is a crossroad where 18 1 there is a road goes across the track at beyond the place 2 where the car came to rest- Come to think of it, I walked 3 all the way to that crossroad. 4 Q. Now, would you -- what does the ballast look like 5 out there that1s in the passing track and in the main line 6 track? 7 A. l Well, it's a mixture of a whole variety of sizes of 8 stone and smaller particles- The -- it's not a -- it's just 9 not an accumulation of all one-inch rock or something like 10 that. It seems to be a unscreened aggregate, I suppose you 11 could call it, crushed rock primarily, in which all particle 12 sizes. 13 Q. Are there any particle sizes that you saw in the 14 ballast that are the same as the particle sizes for the 15 bentonite that you use in your laboratory? 16 A., Well, that would be very hard to say, because 17 there's been several years have elapsed and the immediate top 18 surface has been rained on and lots of weather, and those 19 very fine particles that are right at the -- pretty close to 20 the surface will hve -- will have washed away, blown away. 21 Q- Nov;, compare the size though, sir, of what you've 22 observed at Sturgeon of the material in the passing track and 23 in the main line track to the particle size of the bentonite 24 that you used in your laboratory? 19 1 A. The particle size of the bentonite in the 2 laboratory is very, very small, it's very fine. 3 Q. Is it finer than sand? 4 A. Oh, yes, yes, much finer than sand. 5 Q. Sir, would the bentonite tend to fill in air 6 spaces? 7 A. Well, the way bentonite would be used in a 8 situation like that in my laboratory I would use it as the 9 dry material, because, I want to'pour it out of a cannister 10 right onto the spill. If one is using it for packing, and it 11 is -- then it would be made into a slurry, probably with 12 water, I assume with water, so that it could be poured and 13 the water tends to carry it down into the interstices, 14 crevices, and so forth among -- so that it would tend to fill 15 the spaces, and if you want it to go a long ways through the 16 rock, you'd use a fairly large amount of water. If you just 17 wanted to make a coating, you'd use a fairly thick slurry, 18 and so I would assume-- I have no way of knowing just what 19 mix they used, but for a purpose like that, I would assume 20 that it was a- rather thin-- 21 MR. CARR: Objection to assumption, your Honor. . 22 THE COURT: Objection sustained. 23 Q. Now, would a bentonite sealer in your opinion, sir. 24 tend to fill those 20 1 MR., CARR: Objection, leading question, Your Honor. 2 THE COURT:. Would you rephrase it. It is leading; 3 j Q. \ What would a bentonite sealer tend to do in terms 4 of the ballast? 5 A. 1 just pointed out that it would fill all the 6 crevices in the ballast, all of the spaces in between the 7 larger particles of the ballast. 8 Q. Now, what, sir, would that tend to do in terms of 9 the movement of anything up through that ballast? 10 A. Well, because of the very, very large surface area 11 of those very small particles, it would tend to slow, I would 12 expect that it would tend to slow any movement through that 13 space. 14 MR. HETNEMAN: One moment. Your Honor, please. 15 THE COURT: Sure. 16 Q. Now, Dr. Dost, I'd'like you to assume that the 17 following testimony was given in this case by Dr. Wilson. 18 First of all, on May 16th, Page 174. Question: And you also 19 know that the -- over the years if there's a half life of 20 several years, I think you pointed out in another document 21 that it's -- yes, you did, three to five years is the half 22 life? Answer: Well, here-1 use ,6 months to 3 years. I see 23 in these calculations I used 3 months to 3 years. 24 And further that he testified on May 17th, Page 4. _____________ ! _________________ ________________________ ' 1 Question; Now the suggestion or-the calculation there that a 2 half life is three to five years again, that is similai^ to 3 what you found yesterday in another exhibit that we 4 discussed- I don't have the number right now in front of me, > i 5 but it was the same calculation, was it not? Answer: I 6 think the one we discussedyesterday X assumed it was 7 little bit lower than that with an upper limit of about three 8 years, but I think I used the range of about 3 months ^:o 3 ,9 years iri'those other calculations. 10 Now, sir, based upon that'testimony, do you recall 11 Mr. Carr discussing this subject with you when you were on 12 cross-examination? t 13 A. Yes, I remember that. 14 Q. And do you recall him discussing with you that' 15 Monsanto themselves said that the half life was three roifive 16 years? 17 A. I remember- something of that sort, yes. 18 Q. Now, if you*re'to assume that what I've read you is 19 what Monsanto's testimony has been on that subject, doesthat 20 testimony indicate to you, sir, that Monsanto's position is 21 that' the half life is three to five years? 22 A. No, sir. 23 Q. Is three months a shorter time than three yers?l 24 A . Yes. 1 Q. Nov?, how does a three month half life relate to the 2 information that you have with respect to data from animal 3 experiments? 4 A. Well, the data from animal experiments in most 5 cases runs 30 days between -- either way from 30 days. 6 Q. I 'm not sure I understand what you mean by either 7 way from 30 days. 8 A. I'm sorry, that's a very imprecise answer. In some 9 cases half times of .less than 30 days have been found. There 10 have been a few instances where it seems to be in excess of 11 30 days. 12 Q. Now, do you recall being asked about the McNulty 13 study, sir? j 14 A. Yes, I do. m 15 Q. By Mr. Carr in his cross-examination? 16 A. Yes. 17 Q. Do you Have it there, sir? 18 A. Yes, I do. 19 i Q. Now, do you recall Mr. Carr cross-examining you 20 with respect to your suggestion or your citation of that 21 study as reflecting a half time for TCDD in animals shorter 22 than a year and a study actually stating that-it's a one year 23 half life? 24 A. Yes, I remember that. 1 Q. You remember that, sir? 2 A. Yes. 3 Q. Now, does the -- does the document itself sti 4 one year half life? 5 A. The document makes that statement, yes. 6 Q. All right, sir. What does the data in the do 7 tell you? 8 A. Well, the data itself tells me that the half 9 is in fact much shorter than that* | _ Ii 10 Q. Would you explain your position to the jury p 11 A. Well, I -- when I was asked about that, I 12 remembered the paper, and I remembered what I had cone!, 13 about it. I had not remembered that it was based on my i 14 calculations of his data, and I became a little confusei 15 about that point. My -- the process that I went throug 16 making a determination was to look at the amount of TCI) 17 adipose tissue and in the liver, try to estimate the am 18 that was actually absorbed from the original one microg 19 per kilogram oral dose. I made assumptions of a ten pe 20 fat content in the monkey. Monkeys tend to be rather ll 21 I also made an assumption based on a 20 perce 22 content,'and I used a figure of two and a half percent 23 body weight for the liver, for the liver weight, perceh 24 body weight. I also made the assumption that 60 24 1 the material that was taken in was actually absorbed. Now,- i 2 Dr. McNulty unfortunately.measured the concentration of TCDD 3 in the feces. He didn't carry the-- go through the very 4 simple further step of determining actually hov; much of the 1 5 original TCDD emerged in the feces, and since he hasn't 6 described the body weight of this animal, and we don't know 7 how much of fecal material was actually obtained, I have no 8 way of obtaining direct information about the amount of TCDD 9 that did not get absorbed, so I made an assumption of 60 10 percent, which is quite conservative. I would expect that in 11 reality that figure should be closer to 80 percent. 12 Q. ' Sir, excuse me for interrupting you. I.'m not sure 13 that I understand what you're talking about in terms of the 14 difference between the concentration and the amount. How is 15 a study like that done? 16 A. Dr. McNulty took a fat biopsy very early in the 17 time course of this experiment, and he compared the fat, the 18 TCDD content in that fat at that time, at the beginning early 19 in the experiment with the TCDD content at the end of the 20 experiment. Nov/, in my view that's not an appropriate 21 procedure, because early in the experiment the TCDD in the 22 body has not yet come to equilibrium. There will be -- if 23 the data from every other experiment can be used as an index 24 it will be very, very large amounts in the liver that will 25 i have not yet equilibrated with the fat. There will be amounts 2 in other tissues that will have ,not yet equilibrated with 3 fat, so it's really not an appropriate -- it's not an 4 appropriate comparison. 5 What is necessary is to relate how much went into 6 the animal in the first place with how much is still in the 7 animal at the end of that two year time period. 8, Q. Nov/, is there any way to measure what has gone 9 through the animal and not been absorbed? io A. If he had" -- he measured the concentration of TCDD 11 in the feces. If he had then taken the very simple next1step 12 of determining.the total amount of TCDD that emerged in the 13 feces, then we would have been able to use that information, 14 simply subtract it from the original dose. Unfortunately, 15 that information, he did not use that information, and there 16 isn't enough information in the paper to determine that, 17 because among other things, he hasn't told us what the weight 18 of the monkey, is. It's an adult, female Rhesus and -- but we 19 don't really 'know how big it was, and it would be impossible 20 to estimate even on that basis without knowing how much fecal 21 material was passed, because the animal may have become ill 22 soon after the experiment began and eaten relatively little. 23 That would have an influence. We have no way of knowing 24 actually how much material was lost in the feces. I started 26 1 to make an estimate of this and realized there was simply 2 absolutely no information that would permit it. 3 Q. All right, sir. What -- based upon the information 4 that's in the paper, what sort of a calculation can you make? 5 A. Well, I have assumed that at the end of two years 6 that 70 percent of the TCDD in the body is in the fat and in 7 the liver. I would expect it to actually be higher than 8 that, but I prefer to be somewhat conservative. As I told 9 you, I made a calculation that the animal, ten percent of the 10 animal's body weight was fat in one case and in other case 20 11 percent of the body weight was fat. 12 The numbers that I arrived at were that there was 13 in the case of an animal if the liver was -- or the fat was 14 ten percent of body weight, the amount remaining would be on 15 the order of two and a half percent of the absorbed dose. If 16 it was 20.percent fat, that would approximately double it, 17 because the liver did not make an extensive contribution. The 18 figure would have been slightly less than five percent. And 19 in the case of two and a, half percent, that would mean a half 20 time of something- on the order of 130 days, slightly over 21 four months. If it was five percent, the half time would be 22 on the order of five months, a little over five, if I 23 remember correctly. 24 Qi So what is it that you're describing now, the half 27 1 time of what? 2 A. The half time of TCDD removal from the body, that 3 is, the amount of time that it takes for half of the material 4 that went into the body to emerge from the body, and that's 5 based on the amount remaining in the body, and that half 6 time, so that's a -- okay, the half time of residence. 7 Q. Now, does that -- is that including or apart from i 8 the amount that went through the monkey in the food, emerged 9 in ,the feces and was never absorbed at all? 10 A. That's correct. I've taken that into account. If I 11 had included the total, the one microgram per kilogram dose, 12 then that half time would be quite a bit shorter. It would' 13 be down on the order^ of one and a half percent or so, that 14 is, the total remaining would have been one and a half /. 15 percent and the half, time would have been down on the order 16 of, if I remember, two and a half months, something like 17 that. 18 Q. Well, what -- based upon your calculations what is 19 the half time of dioxin in -- ,what do you figure, in the 20 adipose tissue? 21 A. Well, in adipose tissue, per se, if we're only 22 talking about adipose tissue, then Dr. McNulty's estimate is 23 as good as any other.- The problem is, of course, that as 24 this animal became very ill after about the second month the 28 1 concentration of TCDD in the fat became very, very high, 2 which is not surprising, because the material would tend to 3 stay in the fat even whenJfat. is being lost, and so it's hard 4 to tell whether that, really has meaning. 5 If the dos had been much smaller and the animal 6 had not become ill, then maybe that would have some utility, 7 because I don't know how fat'the animal was at the beginning 8 of the experiment and whether it gained less or more fat. The 9 paper states very clearly that the animal recovered 10 completely as far ^as they're able to tell. Let's see. 11 Because the monkey began to gain weight three months after 12 the dose and has been healthy since. Mow, that's the 13 statement that he made. That's after two years, so I don't 14 really know what the respective fat contents at those r* 15 different times was, and that-would have an impact, too. 16 So the only thing that I can really make a 17 reasonable .estimate about is the amount that was actually 18 absorbed by the animal, and my estimate of the amount that 19 remained at the end of that two year period. So the adipose 20 tissue in the beginning doesn't have a bearing on my 21 calculation. 22 Q. * All right. Now, based upon the result of that 23 calculation, what is the half time in the monkey on the data 24 that you can see in the paper?, 29 1 A. I'd say 130 days, which is.slightly over four 2 months in- this monkey. Unfortunately, this is one animal. 3 Q. And what was. it that Mr. Wilson calculated as the 4 lower end of a half life? 5 A. Three months. 6 Q. Can you account for a difference between the three 7 and the four? t 8 A. Well, within these circumstances I don't know. Dr. 9 Wilson, I think, was basing his calculations just on existing 10 information in the literature and trying to reach some kind 11 of a rough estimate. As far as this particular animal is 12 concerned, given the variability among animals, there is no 13 difference between three and four months. 14 Q. All right, sir. Dr.- Dost, do you have Plantiff's 15 Exhibit 1646 in front of you there, sir? 1 16 A. Yes. 1 17 Q. Would you identify that for the jury again please? 18 Av This is an abstract of a report by Dr. Poiger and 19 Dr. Schlatter from 'Switzerland. X believe it is an abstract 20 of the report that was given at the dioxin conference in 21 Germany. Was that earlier this year? 22 Q. Now, do you'recall Mr. Carr discussing this 23 document .with you, sir, on your cross-examination? 24 A. Yes. 30 1 Q. And what was your reaction with respect to *2 accepting'the results of this as set forth in this abstract? 3 A. I guess on the basis of what1s in the abstract I 4 didn't think there was enough information to draw a 5 conclusion. 6 Q. Why did you feel that way, sir? 7 A. Well, X have no information about the body burden 8 of TCDD,in this individual prior to the experiment, I have no 9 idea how much TCDD was already in his tissues, in his fat. 10 That would have that would have some impact on the rate at 11 which TCDD might emerge. I have -- what he has -- what he 12 has provided is good information on the amount that was 13 absorbed from the gut. In this case there is enough 14 information to tell that, but I'm very concerned about the 15 problem of isotope dilution in body fat knowing nothing about 16 about the concentration at the beginning, the concentration 17 of TCDD at the beginning prior to the ingestion-of the TCDD. 18 Q. Nov/, sir, the -- I'm interested in this -- your 19 discussion of this background level. What do you mean by 20 that? ( 21 A. Well, TCDD has been found in the adipose tissue of 22 very large number of individuals who have no history of 23 exposure, and it would be fair to assume that there's a good 24 chance at least that Dr. Poiger even in Switzerland has TCDD 31 1 already in the -- in the fat, five parts per trillion, 2 whatever,, w.e have no way of knowing. At the -- I think that 3 this would have a considerable effect on the rate at which 4 TCDD is incorporated. 5 We would like to assume in a rapidly mixing kind of 6 compartment that that labeled TCDD would essentially follow 7 the -- follow the TCDD that is already there, but this is not 8 necessarily a very rapid mixing compartment, and he -- he 9 took'fat biopsies at ten days and 69 days after -- after the IQ -- after he ingested the material. I rm not really confident 11 that at ten days mixing was complete. .In other words, the 12 material, may not have all been incorporated in body fat by 13 that time to the extent that it is going to be.-We've 14 discussed equilibrium in the past, which is the process by 15 which everything finally gets where it's going to end up, and 16 he also.has based this on a determination of three parts per 17 trillion of the labeled material in his fat at ten days and 18 2.8 parts per trillion at the end of 69 days, and I really 19 have some question whether -- I have a lot of experience with 20 radioisotopes, and I don't think that I could tell really the 21 difference between three and -2.8 in an experiment of this 22 sort, so there needs to be a good deal of other information. 23 This experiment is not complete is what I guess I'm trying to 24 say. 32 1 Q. .What .-- does the amount.of^body fat have any 2 effect? 3 A/. Well, it would have an effect because that makes a 4 larger -- if there's a lot.of body fat and at 25 to 30 5 kilograms of body fat -- I don't know what Dr. Poiger 6 weighs. *It was Dr. Poiger who ingested this material. I 7 don't know what his weight his, but that is -- it appears to 8 me thathis -- he may be a fat man. I'm not sure. That's a 9 lotof fat for a normally-- for a normal sized individual. 10' And so there's a great deal -of material for this to dilute 11 in, and that's jgoing to perhaps make the measurements of 12 concentration in fat even less precise. 13 Q. Do you -- have you met Dr. Poiger? 14 A. No, I have never met Dr. Poiger. 15 Q. One of the things I notice is in the second line he 16 has a statement of the total dose, correct, sir? 17 A. Oh, yes. 18 Q. And that's how much? 19 A. Oh, well, that's one hundred -- that would tell me 20 his body weight, 105 nanograms he administered a single dose . 21 of 1.14 nanograms per kilogram.- .It would seem to me that his 22 weight is slightly under a 100 kilograms,andif that's the 23 case, his body fat is ;-- is at least25percent, whichis 24 substantial. 33 1 That's a very:substantial dose as well. I'm a 2 little surprised, because that's in excess of what we 3 consider to be a no effect dose. 4 Q. The 105 is? 5 A. 1.14 nanograms per kilogram that's .00114 6 micrograms per kilogram. Our -- the no effect dose that we 7 generally settle upon is .001 micrograms, so it's slightly in 8 excess of the no effect dose. I question whether it will 9 cause Dr. Poiger any harm, but nonetheless it doesn't conform 10 with our convention as to a no effect dose. 11 Q.. How long have you been seeing papers by Dr. Poiger 12 and Schlatter in the field of TCDD? 13 A. I think since the mid seventies. I would want to 14 go back and check, but they have been active in this field 15 for a long time. 16 Q,. They being -- 17 A. Dr. Poiger, Dr. Schlatter, there's -- there are two 18 or three others that are also in that group. 19 Q. What's the nature of the work that they've done, 20 sir? 21 A. Primarily on the pharmacokinetics, if you will, 22 that is what happens to TCDD when it -- when it -- 23 pharmacokinetics and metabolism, what happens to TCDD and 24 what chemical reactions, what physical interactions befall 34 1 TCDD once it enters the body. 2 Q. And they've been conducting these experiments on 3 what, sir? 4 A. On rats, guinea pigs, dogs. I would not be at all 5 surprised other species. I don't remember at the moment. 6 Q. And would you say -- how long would you say he's 7 been doing this? 8 A. I'm sure for ten years. 9 Q. And when did Kociba publish the no observed effect 10 level in rats? 11 A. .That paper that was a long-term study. It was 12 published in 1978: 13 Q. And that no observed effect level was what, sir? 14 A. r .001 micrograms per kilogram per day. 15 Q. And did Dr. Poiger administer to himself a dose of 16 105 nanograms? 17 A. Yes, dissolved -- this is TCDD labeled with 18 radioactive hydrogen. I think I discussed the labeling with 19 radioactive hydrogen at one tim during my direct testimony. 20 He ingested that dissolved in' corn oil. 21 Q. Nov/ -- 22 I4R. CARR: May I approach the bench, Your Honor. 23 THE COURT: Yes, you may. 24 (At this time a conference v/as had at the bench out 35; 1 of the hearing of the jury.) 2 MR. CARR: I object to this testimony that's just 3 come out and ask the jury be instructed to disregard it. 4 There is nothing in the document 1646 that says Dr. Poiger 5 administered this to himself. This is obviously -relating by 6 Mr. Heineman, two of them relating something that they have 7 been told. It is hearsay and it's not in that document. 8 MR. HEINEMAN: Your Honor, I think the document 9 demonstrates the dose that he's got. 10 THE COURT: Let me see it. I don't have it. 11 MR. CARR: It doesn't demonstrate that it was given 12 to Dr. Poiger. 13 THE COURT: Let me have the document. I don't have 14 it in front of me. You're objecting to the part about it 15 being him taking it? ' 16 MR. CARR: Yes. 17 THE COURT: It doesn't say he took it. It says a 18 male volunteer. 19 MR. HEINEMAN: It does say male volunteer, doesn't 20 it? He is the male volunteer. 21 THE COURT: Where is that, what's the basis for 22 that? I assumed it was in that document when I heard it. 23 That was the context in which it sounded to me. What is your 24 basis for that information? 36 1 HR. HEINEMAN: What is my basis for that? 2 THE COURT: What's his basis for saying it was in 3 fact Poiger himself. 4 MR. HEINEMAN: I think he knows that. 5 MR. CARR: He wasn't there. How could he know 6 except what he's been told? 7 MR. HEINEMAN: He has been told that, but I'm sure 8 he has and he knows it. 9 MR. CARR: He knows he's been told. He doesn't 10 know that. He wasn't there, I'm sure, when this "male 11 volunteer,took that TCDD, and I'd like to have the jury 12 instructed that there's no evidence in this case that Dr. 13 Poiger took this material. 14 MR* HEINEMAN: Before you do that, can I consult 15 with Mr.Nassif for a minute, because I think -- it strikes 16 me there's some evidence that this is so. 17 THE COURT: Sure. Go ahead. 18 MR. HEINEMAN: Your Honor, Joe's recollection is 19 that Mr. Carr asked George Roush something on this subject, 20 and Roush testified that there was somebody who had 21 administered it to himself, but Joe's recollection was that 22 he did not identify it as Poiger, that this experiment that's 23 being reported on here has been testified about, but he's not 24 at all clear that Poiger was the one as having been 37 1 identified. 2 THE COURT: Then your objection ought to be 3 sustained. 1 '4 MR. CARR: Yes, Your Honor. 5 THE COURT: X will so, admonish the jury. Why don't 6 we take a short break? 7 MR. CARR: With this regard, there's no evidence 8 that Dr. Poiger administered this to himself. 9 THE COURT: To disregard all those statements in 10 this regard. 11 MR. HEINEMAN: Your Honor, when you say disregard 12 all those statements what are you talking about? 13 THE COURT: All statements that -- it has been said 14 at least three times that Poiger administered it to himself 15 and the discussions about body weight, which were obtained 16 this, etc., in terms of Poiger himself is what I 'm saying 17 should be disregarded. 18 MR. CARR: Yes. 19 THE COURT: Cause, it's been mentioned about three 20 different times in different contests, so I 'm telling them to 21 disregard any of those references. 22 MR. HEINEMAN: Body weights calculation was not 23 based upon knowledge of Poiger himself. 24 THE COURT: But when he talked about the body weight 38 1 calculation he talked about it as being Poiger's calculation, 2 I mean Poiger's weight. He didn't know whether he was thin 3 or medium or whatever. 4 MR. CARR: All the Court is' saying is that the jury 5 is instructed to disregard these statements that Dr. Poiger, 6 administered this to himself. 7 THE COURT: Yes. 8 (The following proceedings were had in open Court.) 9 THE COURT: Ladies and gentlemen, you are ordered to 10 disregard any statements by the witness that Dr. Poiger 11 administered this to himself. You may proceed. 12 MR. HEINEMAN: Did you say you wanted -- 13 THE COURT: Yes, I did, didn't I? VJe'll take a 14 short bre'ak at this time. 15 (At this time a short recess was taken.) 16 17 (The following proceedings were had in open 'Court.) 18 Q. Doctor, directing your attention again to 19 Plantiff's Exhibit 1646, the ,-- how does the exhibit identify 20 the recipient of this 105 nanograms? 21 A. It said the material was ingested by a male 22 volunteer. 23 Q. Now, this male volunteer, sir, how does this 105 24 'nanogram dose relate to the maximum possible dose which you 39 1 have calculated with respect to the Sturgeon population? 2 ,A. Okay. TheJdose that I calculated related to the 3 application of soil from the area under the tank car, as I 4 recall, ten grains of soil applied to the skin, and we did -- 5 we related the difference between that and the no effect dose 6 that we use of .001 micrograms per kilogram as a difference 7 of 222 fold, that is,' the no effect dose is 222 fold higher 8 than this dose that we would get by rubbing the material' on 9 the skin. This dose was 1.14 nanograms per kilogram, so it's 10 14 percent higher than the no effect dose, so the difference 11 would be 14 percent higher than 222, let's say, something on 12 the order'of 250 fold .difference. 13 Q. Thank you, sir? 14 MR. HEINEMAN: That's all the questions I have, your 15 Honor. 16 THE COURT: All right, Mr. Carr, do you have any 17 recross? 18 MR. CARR: Yes. 19 20 BY MR. CARR:` RECROSS EXAMINATION 21 Q. Doctor, if you would refer to Plantiff's Exhibit 22 908 if you still have it there, sir. 23 A. I have it now, yes, sir. 24 Q. Now, when you testified referrable to the 40 1 information on Page 173, -- 908, by the way, is the Moses 2 Selikoff study of the workers at Nitro, is it not, sir? 3 A. Yes, sir. 4 Q. And you misspoke when you said this contradicted 5 what Dr. Ca'rnow testified to as to the symptoms shown by the 6 workers at Nitro upon his examination of those workers, did 7 you not' so misspeak? 8 MR. HEINEMAN: Excuse me, counsel. May counsel 9 approach the bench, Your Honor? 10 THE COURT: Sure. 11 (At this time a conference was had at the bench out 12 of the hearing of the jury.) 13 MR. HEINEMAN: As I recall, Your Honor, at Mr. 14, Carr's request this matter was -- at his objection it was 15 ordered stricken, and I may be thinking about the wrong 16 thing. 17 MR. CARR: You're thinking about something else. 18 MR. HEINEMAN: Was the jury instructed to disregard 19 this subject? 20 THE COURT: I don't think so. 21 MR. CARR: Not at all. It would clear it up. 22 MR. HEINEMAN: That's right. 23 MR. CARR: I want it cleared up more. He went into 24 it, and he cleared up what he said, and I want to go into it 41 1 more and clear it upmore. 2 MR. HEINEMAN: Your Honor, my objection would be 3 that what was done on that subject with this witness at that 4 time was done at the request of Mr- Carr and upon the order' 5 of the Court. 6 THE COURT: Well, it was done because of his 7 precipitation. 8 MR. HEINEMAN: Mr- Carr agreed with what should be 9 done with the witness at that time, and the Court ordered it 10 done, and it was done. 11 THE COURT: Okay. 12 MR. HEINEMAN: I object to his going into it any 13 further at this time. -v 14 THE COURT: I don't think that of itself precludes 15 him from going into it. I don't think that -- just as having 16 parts of a deposition read, I don't think that precludes him 17 from consideration of it on recross. I' would not agree with 18 you. Objection is overruled. 19 (The following proceedings were had in open Court.) 20 Q. Now, could you, answer my question. Dr. Dost? 21 A. No, sir, I misspoke with reference to the way I 22 described this information. . 23 Q. And you don't agree that you misspoke in saying 24 that this study contradicts Dr. Carnow's findings? 42 1 A. No, sir. 2 Q. In point of this fact, this study in no way 3 contradicts what Dr. Carnow said about their symptoms and 4 complaints, does it, sir? f 5 A. I think it does, sir. 6 Q. Dr. Dost, you were advised that Dr. Carnow 7 testified that the people that he' examined had various 8 symptoms and problems. Do you recall that, sir? 9 A., .Yes. 10 Q. He examined people both with and without 11 chloracne. Do you know that, sir? 12 A. Yes. 13 Q. And he testified as to the symptoms that all of the 14 Nitro workers had without respect to whether they had 15 chloracne or not, did he not, sir? 16 MR. HEINEMAN: Objection, Your Honor. May counsel 17 approach the bench? 18 THE COURT: Sure. 19 (At this time a conference was had at the bench out 20 of the hearing of the jury.) 21 MR. HEINEMAN: I object to that question as 22 certainly mischaracterizing what Dr. Carnow testified to. He 23 didn't testify with respect to all the Nitro workers. He 24 testified to 43 1 ,MR. CARR: All the-1Nitro workers that he examined. 2 .MR. HEINEMAN: 125 plaintiffs on whose behalf he 3 made examinations, and so X object to the form of the 4 question. i 5 THE COURT: Could you rephrase that. 6 MR. CARR:' I will. 7 (The following proceedings were had in open Court.) 8 Q. Dr. Dost, you do understand that Dr. Carnow's 9 testimony in this case as to the Nitro workers was with 10 respect to the 125 workers at Nitro that he examined and that - 11 he testified as to their complaints without regard to whether 12 they did or did riot have chloracne. You understand'that, 13 sir? 14 A. I see what you're asking me. I understand that, 15 yes. 16 Q. You didn't understand that earlier then, is that' 17 correct, Dr. Dost? 18 A. I did not know the differentiation with respect to 19 chloracne in those patients. 20 Q. Mr. Heineman didn't advise you that Dr. Carnow 21 testimony that he related to you did not purport to make a 22 differentiation between the complaints of the chloracne 23 workers and the no chloracne workers, did he, sir? 24 A. No, I think that was an assumption that I made. ; 44 1 Q. Now, Dr. .Dost, you discussed this testimony or this 2 line of testimony with Mr. Heineman before you took the 3 witness stand on -- well, not only before you took the stand, 4 but before you took the witness stand again here on redirect, 5 did you' not, sir? 6 A. We discussed it, yes. .7 Q. And you knew he was going to ask you, he advised 8 you, and*1yi ou discussed with him what he was going to ask you 9 about, did you not, sir? 10 A. - Yes. 11 Q. Every single point that you have testified here 12 today and last week has been on points that you.have 13 discussed with Mr. Heineman prior to your testimony, isn't' 14 that correct, sir? 15 A. Yes. 16 Q. And did you -- he did not advise you, did he, sir 17 that the Dr. Carnow testimony was that the large number of 18 complaints that these people had at Nitro they had whether 19 they were exposed to -- whether -- they had whether they did 20 or did not have chloracne. He didn't advise you of that, did 21 he,' sir? 22 A. No, I don't believe so, 23 Q. No. Now, Doctor, if all of the workers have or a 24 large percentage of the workers have the same symptoms or the 45 1 same complaint or the same finding, isn't that an indication 2 that all of those workers have been affected by whatever 3 substance they may have been exposed to in the same fashion? 4 A. On the basis of this paper, I would say no. 5 Q. Now, Doctor, I didn't ask you on the basis of this 6 paper. I asked you a question as you know from a 7 toxicological viewpoint, you know the answer to. Isn't it a 8 fact that you 'find a large group of people having the same 9 abnormality, having the same symptom or having the same 10 complaint or having the same finding, that you as a i i 11 toxicologist can deduce that a chemical substance that they 12 have been exposed to in common could be causing that same 13 complaint, finding, or abnormality? 14 MR. HEINEMAN: Objection, your Honor. May counsel 15 approach the bench? 16 THE COURT: Sure. 17 (At this t.ime, a conference was had at the bench out 18 of the hearing of the jury.) 19 MR. HEINEMAN Your Honor, that is -- I object to 20 the question as being misleading and as not properly 21 representing the evidence that Dr. Carnow has testified to. 22 What Mr. Carr is suggesting is that when you're talking about 23 percentages of the people with the same complaint, you're 24 talking about the same people, and that's not accurate. In 46 1 other words, the people' thathave Complaint A may only then 2 also have D, and the people that have Complaint B may have 3 Complaint G as well. In other words, you don't have the same 4- people having all of the same complaints and that's what he's 5 suggesting that Carnow's frequency distribution shows. 6 MR. CARR: I didn't say anything about Carnow's '7 frequency distribution. I'm asking him as a toxicologist 8 that he doesn't know that ,what I said is correct. I'll get to 9 Carnow's in a moment,. 10 MR. HEINEMAN: I object to it, because it is 11 misleading because it comes right on the heels of talking 1-2 about what Carnow is saying about these people. He is 13 implying to this witness that that's what Carnow's frequency 14 distribution shows, and I object to it, because it doesn't 15 show that. 1.6 THE COURT: I don't think it does so imply. 17 Objection is overruled. 18 (The following proceedings were had in open Court.) 19 Q. Would you answer my question please, Dr. Dost? 20 A. I don't know whether those effects differ from 21 those in the general population. 22 Q. Would you read my question to him again. Would you 23 answer that question, Dr. Dost. 24 (Court reporter read back the last question.) 47 1 A. X would say that it is possible. 2 Q. Doctor, as a toxicologist that goes in to find out 3 what poisons are doing and the effects of it, you as a matter 4 of fact, look at that as one criteria, do you not, sir? 5 A. As one criteria, yes. 6 Q. -And if you find that a group of people have an 7 abnormality, for instance, on a laboratory test, that a large 8 percentage of the group of people that have been exposed to a 9 have an abnormality, you can deduce from that that the 10 chemical may have caused that abnormality, can you not, 11 Doctor? 12 A. If I can' assume that they have been exposed, it is 13 possible, yes. 14 Q. No, if you know they have been exposed, you been 15 told they been exposed to the chemical, the evidence is that 16 they been exposed to the chemical, and they have in common an 17 abnormality that the population, that same percentage of the 18 population in general do. not have, you can deduce from that 19 the chemical that you been told they were exposed to has 20 caused that abnormality, can you not, sir? ,21 A. It would cause me to investigate whether that 22 chemical is responsible, yes. 23 Q. And after you've investigated and what you have 24 found, Doctor, is as I've told you, that the people have all 48 1 been exposed to the chemical in question/ and they all have 2 the abnormality that .is not found in those percentages in the ,v 3 general population, can you not or would you not as a 4 toxicologist conclude that that chemical exposure may well be '5 causing the abnormality? 6 A. Well, you use the term may, and I would use the 7 term it may, yes. 8 Q. Doctor, the.Moses Selikoff study d.eals only with 9 what is-the difference between the complaints of those 10 workers at Nitro who have chloracne and those workers at 11 Nitro who have no chloracne, isn't that correct, sir? 12 A. That's correct.. 13 Q. It has nothing to do at all with whether or not the 14 workers have a complaint or a finding or a symptom without 15 respect to chloracne,,does it, sir? 16 A. No. 17 Q. -. What it tells you and what it tells everybody that i 18 except for chloracne all of these workers have the same 19 complaints, the same complaints of muscle pain, insomnia -- 20 strike that. There is a difference betv/een the workers with 21 and without chloracne insofar as muscle pain, insomnia, 22 decreased libido, sexual dysfunction, that is .difficulty with 23 erection or ejaculation and eyelid cyst, there is indeed a 24 difference, a statistical difference between those with and 49 1 without chloracne, correct, sir? 2 A Yes i 3 Q. But for the people having complaints, and of course 4 -- strike that for a moment. That would suggest, would it 5 not, sir that those with chloracne have been exposed to 6 something that's causing them more problems of muscle pain, 7 insomnia, decreased libido, sexual dysfunction, and eyelid 8 cysts than as being caused to those people who have no 9 chloracne? ' 10 A. It- would suggest that they have a higher dose of 11 whatever substance is responsible. 12 Q. Could you answer any question please, sir? 13 A. You said something else. 14 Q.l They are having these problems in addition to and 15 over above the chloracne, aren't they, sir? 16 A. That's what this paper states, yes. 17 Q. Doctor, insofar as the problems that the Nitro 18 workers are having with joint pain, abdominal pain, nausea, 19 vomiting, diarrhea, constipation, weakness, fatigue, 20 irritability, nervousness, depression, numbness, vertigo, 21 lightheadedness, or personality change, there is no 22 difference between those having chloracne and not having 23 chloracne, isn't that correct, sir? 24 A. That's correct. 50 1 Q. And, Doctor, if there were large numbers -- were 2 you told by Mr. Heineman that large numbers of these workers 3 at Nitro, of the 125 he examined, large percentages had such 4 complaints? Were you told by Mr. Heineman that -- 5 A. Yes. 6 Q. Sir? 1 A. Yes. 8 Q. And if those complaints are greater than as has 9 been testified to by Dr. Kilgore in this case, if those -- 10 and I won't go through the same percentages as I did with Dr. 11 Kilgore -- if those percentages are greater than in some 12 instances, greater than what the general population would 13 have, that would be significant, wouldn't it, Dr. Dost? 14 A. Yes. 15 Q. It would indicate that those people at Nitro, that 16 125 people or the percentage of those people having these 17 complaints may indeed be having these complaints because of 18 the chemicals to which they're exposed, isn't that correct, 19 sir? 20 A. That is a possibility. 21 Q. Doctor, that is more than a possibility. It is a 22 probabilities, is it not, sir? 23 A. Well, you use the term may, and I would use that 24 term. 51 1 Q. Yes, and you said possibility, but I'm saying now 2 it's more a possibilities, it's a probability, isn't it, sir? 3 A. It may be the case. 4 Q. Doctor, not just may be. It is a probability, 5 isn't it, sir? 6 A. It depends on the dose response. 7 Q. 'Doctor, the response you have heard, you know 8 they're exposed, you know they been working in this plant, 9 you know the levels while you testified incorrectly as to the 10 levels, and I'll get to that in moment, you know the levels 11 to which they've been exposed, you know the chemicals 12 involved, you know that indeed these complaints, if the Nitro 13 workers are not lying, if they're not putting on, if the' 14 chemical workers are "telling the truth as to what's bothering 15 them in those percentage levels, you know that it is very 16 probable that it's the chemicals that they been working with 17 and to which they been exposed that have caused these 18 complaints, isn't that correct, sir? 19 A. Yes, if those differences exist. 20 Q. Yes. And the Moses Selikoff study in no way 21 contradicts what Dr. Carnow testified to, does it, sir? 22 A. Well, since I do not what the distribution in his 23 people between chloracne and non-chloracne, I can't then say. 24 Q. So when you testified here at the behest of Mr. 52 1 Heineman that it did contradict Dr. Carnow's findings and 2 testimony, you misspoke and were in error, weren't you, sir? 3 A. On the basis that I didn't know the chloracne 4 incidence, that would be true. 5 Q. Not the basis, you didn't know the chloracne 6 incidence, Dr. Dost, simply upon what Mr. Heineman told you 7 when you said Dr. Carnow that this Moses study contradicts 8 what Dr. Carnow said, you misspoke, did you not, sir? 9 If you don't know what Dr. Carnow reported with 10 relation to the percentages and all this, you obviously 11 misspoke, didn't you, sir? You did not have enough 12 information to come to a conclusion whether this study 13 supported him or contradicted him, did you, sir? 14 A. On that basis, no. 15 Q. But yet you told the jury that you did have such 16 information, didn't you, sir? 17 A. Yes, I was depending on the dose response. 18 Q. You got that information from Mr. Heineman, didn't 19 you, sir? All the information you got about what Dr. Carnow 20 found or did not find, you got from Mr. Heineman, didn't you, 21 sir? 22 A. And from Dr. Carnow's testimony. 23 Q. Well, did you read anything in Dr. Carnow's 24 testimony, sir, that was in any way contradicted by what Mr. 53 1 Moses said? 2 A, I don't recall. 3 Q. Well, you sure as heck testified here that you -- 4 last week that it contradicted it, didn't it, sir? Now you 5 don't recall it. Have you had another conference with Mr. 6 Heineman? 7 A. No. 8 Q. You've just plain forgotten then, is that right? 9 A. No; I was basing this on the dose response that 10 this paper shows. 11 Q. Doctor, this paper shows that there with regard to 12 certain complaints there is no relationship to the dose, 13 isn't that correct, sir, the dose is not material, it's not 14 connected, it doesn't affect the complaints of joint pain, 15 abdominal pain, nausea, vomiting, diarrhea, constipation, 16 weakness, fatigue, irritability, nervousness, depression, 17 numbness, vertigo, lightheadedness, or personality change, 18 isn't that correct, sir? 19 A. Well, since Moses did not relate it to the general 20 population, I suppose -- 21 Q. Could you answer that question, Dr. Dost? 22 A. Yes. 23 Q. This makes -- it states for sure that there is no 24 connection with dose response in regard to those complaints, 54 1 doesn't it, sir? 2 .A. No, sir, it,doesn't say it for sure. 3 Q. Doctor, doesn't it say no differences were found in 4 those v;ith and without chloracne? 5 A. In that -- in this category there, yes, was no 6 difference found between the people that had sufficient dose 7 to cause chloracne. 8 Q. Doctor, that's the dose response you're talking 9 about, isn't it, sir? 10 A. Yes. 11 MR. HEINEMAN: Objection, Your Honor, he's 12 interrupting the witness. 13 THE COURT: Objection sustained? 14 A. I was taking the section as a whole. There are 15 other parts where there is clearly a dose response and the 16 rest of it where there was not. 17 Q. Now, Doctor, what you're -- what this shows is is 18 that there is a dose response for certain symptoms such as 19 muscle pain, insomnia, decreased libido, sexual dysfunction, 20 eyelid cysts, correct, sir? 21 A. A dose response in terms of the individuals in this 22 study, the dose response -- 23 Q. That's what we're talking about is the individuals 24 in this study, the Nitro workers, Dr. Dost, the same workers 55 1 that D r :. .Carnow -- part of the same workers that Dr. Carnow 2 examined. f 3 A. Well, the dose response relates to the others, too, 4 it's just that they didn't reach a point where there would be 5 a difference. 6 Q. Doctor, where is there anything in this study that 7 suggests to you that there is a dose response for those 8 having joint pain? Point it out to me, Doctor. 9 A. There is a dose response. None of these 10 individuals reached the point where there is a difference 11 demonstrated. 12 Q. Excuse' me, Doctor. Point out where this article 13 shows there is a dose response for those people having joint 14 pain. 15 A. This article does not describe the dose response 16 except to say that the people with chloracne, who obviously 17 had a higher dose -- 18 Q. Doctor, that isn't what X asked you. Point out for 19 me in this article where it says there is a dose response for 20 those workers having joint pain. 21 A. It does not say that. 22 Q. There is nothing in this article that states 23 i insofar as the problem of joint pain is concerned that there 24 is a dose response related to dioxin exposure, isn't that 56 1 correctsir? 2 A. There is no data in this paper that shows that. 3 Q. Is the-answer to my question yes, that's correct, 4 Mr. Carr? 5 A. That's correct. 6 Q. Yes. And as a matter of fact, this document, 7 there's nothing in this document that shov/s there is any dose 8 response connected with those that have abdominal pain as 9 well, isn't that correct, sir? 10 A. No, they haven't reach a point where -- 11 Q. Excuse me, could you.answer that question, Dr. 12 Dost? 13 A. * That's correct. 14 Q. The same thing is true for those having nausea. 15 There is no dose response for those people having nausea 16 that's been exposed to dioxin, isn't that correct, sir, 17 according to this document? 18 A. From the data in this document, that's correct. 19 Q. And from the. data in this document there is no dose 20 response- for people who have the affliction called vomiting 21 or diarrhea, isn't that correct, sir? 22 A. Not data in this paper. 23 Q. And again in this paper there is no dpse response 24 for those people exposed' to TCDD having weakness or fatigue, 57 X isn't that correct, sir? 2 A. .Yes, neither group.' 3 Q. Is the answer to my question, yes, that's correct, 4 Mr. Carr? 5 A. That's correct. 6 Q. As far as this document is concerned, there is no 7 dose response for exposure to TCDD for irritability, is 6 there, sir? 9 A; According to this document, no. 10 Q.. Again is the answer to my question, yes, Mr. Carr, 11 that's correct? 12 A. That's correct. 13 Q. Doctor, insofar as this document is concerned and 14 this study is concerned, there is no dose response for people 15 who are caused to be nervous by TCDD, is there, sir? 16 A. No, sir. 17 Q. And the same thing is true for those people who 18 have numbness, there is no dose response shown for people 19 that have: .numbness being caused by TCDD, isn't that correct, 20 sir? 21 A. Yes, that's correct. 22 Q: : For vertigo or lightheadedness or personality 23 change, again this document demonstrates there is no dose 24 response for those symptoms, doesn't it, sir? 58 1 A. 'No, sir, that's not correct. 2 Q. Doctor, do you not agree that the people with a 3 dose sufficient to cause chloracne had personality change? 4 A. That's not the question'you asked me, sir. 5 Q. Excuse me, Doctor. I'm leading to that, sir, do you 6 not agree that this document shows that, sir? 7 A. That's correct. 8 Q. Do you not .also agree that the people who did not 9 have chloracne also showed and complained of personality lO- change after being exposed to TCDD? ll A. If they were exposed to TCDD in any case they did, 12 yes. 13 Q. Doctor, are you taking Dr. Moses' work as correct, 14 that all of these population, that nobody in this population 15 could be caused an unexposed population or unexposed 16 subject? You do recall she testified to that, don't you, 17 sir? 18 A. That's correct. 19 Q. Rather she found that, sir. And you also agree 20 that she said that no chloracne is not synonymous with'no 21 exposure, don't you, sir? 22 A. That's correct. 23 Q. Doctor, you also agreed that there were people that 24 were heavily exposed to TCDD that never did get chloracne, 59 1 you also agree with that, don't you, sir? 2 A. Is that stated here? 3 Q. Doctor,*you're the toxicologist. Don't you know 4 that it's1shown here in this document? 5 A. How heavily? 6 Q. Doctor, do you know or not know that this document .7 shows that there were people who were heavily exposed to '8 dioxin that never did get chloracne? 9 A. Noone knows precisely how heavily -- 10 Q. Excuse me,' Doctor. Could you answer that question 11 please. I'm talking about this document, sir. 12 A.' Well, perhaps you could show me where that 13 statement is made. 14 Q. No, Doctor, I will not show you. You're testifying 15 about this with regard to Mr. Heineman. Aren't you aware at* 16 the tim-e you testified, sir, Ithat this document shows a 17 significant percentage of people who were heavily exposed to 18 dioxin never did get chloracne, aren't you aware of that? 19 A. I don't think that that shows that at all. 20 Q. .Doctor, are you aware of that or not? 21 A. I'm not aware that this document shows that people 22 who were heavily exposed to TCDD did not get chloracne. 23 Q. Doctor, turn to Page 171, the table, if you recall, 24 I asked you about.it on cross-examination * Perhaps you've 60 1 forgotten it. You see the table there at the bottom of the 2 page on 171 where they,1re talking about heavy exposure, sir? 3 You see the word heavy there? 4 A. It was heavy exposure to 2,4,5-T. 5 Q. You see that, sir, heavy exposure? 6 A. To 2,4,5-T, yes. 7 Q. And the 2,4^5-T has got the dioxin, isn't it, sir? 8 A. Yes. .9 Q. And, Doctor, do you see there 24 percent of the * 10 people with a heavy exposure never did get chloracne? 11 A. That's-- 12 Q, You see that, sir? 13 A. Yes, that's based on their-- / 14 Q. Doctor, whatever it's based upon what I'm asking 15 you-- 16 MR. HEINEMAN: Objection, Your Honor, he 17 interrupted the answer again. 18 THE COURT: Objection is overruled. 19 Q. This document, this table shows that 24 percent of 20 the people who had a history of heavy exposure to 2,4,5-T and 21 to the dioxin contaminant therein did not get chloracne, 22 isn't that1correct, sir? 23 A. , If one uses the word in this document -- . 24 Q. Doctor, that's exactly what I've used all along, 61 -1 that's what I been talking about is this document, sir. 2 Would you answer my question please, sir? 3 A. The amount of exposure is not known. This depends 4 on exposure. 5 MR. CARR: Your Honor, would you direct the witness 6 to answer my question. 7 THE COURT: Doctor Dost, you are so directed to 8 answer that question. That answer was not responsive. 9 A. Well, I'm trying to figure out how to answer your 10 question responsively Mr. Carr. Perhaps you could ask me 11 again and let's see if I-- 12 MR. CARR:,Would you read the question again. 13 (The Court Reporter read back the question at this 14 time.) 15 A. This diagram so states. 16 THE COURT: Gentlemen, could you approach the bench 17 for a minute please. 18 (At this time a conference was had at the bench out 19 of the hearing of the jury.) 20 THE COURT: Have you told him these guidelines that 21 I set down as far as what's to be done in this courtroom. 22 MR. HEINEMAN: Oh, sure that was before he -- 23 THE COURT: No, those were set out during Kilgore. 24 MR. HEINEMAN: X have told him that-- 62 I THE COURT: Well, you better drive it home again. 2 He's interrogating counsel without responding to questions 3 and insisting upon not responding, and I won't tolerate it. 4 I'll give you an hour or two to drive the points home again. 5 I know this was settled during Dr. Kilgore's testimony, but I 6 think you better make him more familiar with it during the 7 lunch hour, and since it's noon we'll break at this time. 8 (The following proceedings were had in open Court.) 9 THE COURT: Ladies and gentlemen, we'll take our 10 lunch break at this time. We'll resume again at 1:15. I 11 would remind you that you're not to discuss this matter among 12 yourselves or with anyone outside the jury panel or as of yet 13 form any opinions or conclusions about the matters on trial. 14 Court's in recess until 1:15. 15 (At this time a short recess was taken.) 16 17 (The following proceedings were had in open Court.) 18 MR. CARR: Could you give Plaintiffs' 1665 to the 19 witness please. 20 Q. Now, Dr. Dost, are you familiar with this book put 21 out by the EPA? 22 A. I haven't had a chance to read all the way through 23 it. I know of its existence. I've seen a copy, but I haven't 24 studied it intensively. 63 1 Q. You haven't read it to see whether or not it -- 2. health assessment document is consistent or inconsistent with 3 some of the things you've testified to in this case, Dr. 4 Dost? 5 A. I haven't had a chance to go all the way through 6 this. I don't know. 7 Q. Is thet answer'to my question that you have not had 8 the opportunity to compare wliat it says about the various 9 health effects with what you have said, cause I didn't get 10 that one way or the other. 11 A. I guess the answer would be, no, because I have n'ot 12 finished inspecting it. 13 Q. Doctor, you do recall that you discussed v/hether or 14 not heme synthesis caused porphyria? 15* MR. HEINEMAN: Objection, Your Honor, may counsel 16 approach the bench? 17 t THE COURT: Sure. / 18 (At this time a.conference was had at the bench out 19 of the hearing of the jury.) 20 MR. HEINEMAN: Mr. Carr has just opened this line 21 of questioning relating to something that the witness talked 22 about on direct examination that was not covered on redirect, 23 and I object to it. -It's going beyond the scope of the 24 redirect examination. 64 i 1 MR. CARR: According to ray notes not on this time, 2 but earlier when he testified, he testified about heme 3 synthesis and kidneys and porphyria. Well, he discussed 4 porphyria, as a matter of fact, just yesterday or last Friday 5 discussed porphyria with the witness. 6` MR. HEINEMAN: Well, Your Honor, ray objection j stands. .1 don't recall to the best of my memory'the last , 8 time he testified before Dr. Kilgore came on the stand we 9 spent a lot of time, as I recall, on the Pitot article, Mr. 10 Carr had cross-examined the witness on. 11 ,THE COURT: Right. 12 MR. HEINEMAN: He testified, and we went on and 13 spent some time on that article, but I do not recall this 14 subject being gone into on redirect examination, and I object 15 to it as beyond the scope. 16, MR. CARR: You don't recall just last Friday 17 discussing porphyria with this witness? 18. MR.. HEINEMAN: No, I don't recall discussing 19 porphyria. 20 MR. CARR: You went through articles to show whether 21 or not porphyria, caused neuropathies, you don't recall that? 22 THE COURT:> I'm pretty sure I have it in my notes. 23 Let me check. 24 MR. CARR: I have plenty of notes, Your Honor.' I 65 1 can get my notepad here. 2 THE COURT: Yes, you did discuss it. Objection is 3 overruled. 4 (The following proceedings were had in open Court.) 5 Q. Doctor, you do recall discussing on -- counsel, if 6 you want to look for a November -- since you didn't remember 7 it, November 13, 1985 at Page 83 he discusses kidney damage. 8 MR. HEINEMAN: November what? 9 MR. CARR: November 13, *85, the day you conducted 10 your redirect examination just prior to putting on Dr. 11 Kilgore.' 12 MR. HEINEMAN: On kidney damage? 13 MR. CARR: Yes. 14 MR. HEINEMAN: Well, your Honor, I thought the 15 question related to heme synthesis. At any rate, may my 16 objection be a continuing one? 17 THE COURT: Sure, I'll make it a continuing 18 objection. 19 Q. Doctor, you do recall we discussed the kidneys and 20 whether or not the heme synthesis can cause porphyria? 21 A. I recall only one -- I don't recall any reference 22 to kidney damage and porphyria except in my direct testimony 23 where I remarked that there was some evidence of, if I 24 recall, a very limited evidence of porphyria in the kidneys 66 1 of some intoxicated animals. 2 Q. Now, Doctor, turn to Page 8-48 of the document X 3 gave-you, would you please, sir. It discusses there, does it 4\ not,, sir, the study by Goldstein on porphyria induced by 5 2,3,7,8-TCDD? ` ., ' 6 A . . Yes. 7 Qi And, Doctor, are you familiar with this -- have you 8 read this page before that I referred you to? 9 A. Well, I read it in the original document. I don't 10 recall whether I've read it in this final report.' 11 Q. Doctor, just a few points there relating to the 12 porphyrins. You see the statement there where after a six 13 month recovery period the porphyrin level in animals exposed 14 to one microgram per kilogram per week was still one hundred 15 fold higher than values in the control group? 16 A. Yes, sir. 17 Q:.' Do you also see the sentence, a similar pattern was 18 observed for urinary excretion of uroporphyrins? 19 A. Yes. ' 20 Q. - You also see that- they say the rate limiting enzyme 21 in heme synthesis? j' s 22 A. .-YTes. J 23 Q. Aminolevulinic acid synthetase was also elevated at 24 both the time of determination of treatment and at the end of 67 1 the recovery period? 2 A. Yes. 3 Q. All right. Now could you turn to Page 8-60 4 please. And 8 -- you see on 8-60 they're discussing humans 5 and the effect of acute exposure and chronic exposure? 6 A. Yes. 7 Q. And discusses the things that can be caused by 8 acute exposure on Page 8-60 and if you will turn over to Page 9 8-61 it says, does it not, sir, chloracne is generally the 10 first -- this is the paragraph beginning at the bottom of the 11 page or about midway in the middle of the page. Chloracne is 12 generally the first symptom noted in chronic exposure. 13 Systemic symptoms, including altered function of the 14 neuromuscular system, liver, kidneys, and pancreas, altered 15 blood chemistry, serum bilirubin, GOT, GBT, and cholesterol 16 levels, porphyria cutanea tarda, hyperpigmentation and 17 hyperkerotosis have also been reported in individuals that 18 have had chronic 2,3,7,8 exposure. You see that, sir? 19 A. Yes. 20 Q. All right. Now, Doctor, insofar as the Jirasek and 21 Pazderova articles that you testified before you left, Dr. 22 Kilgore has gone into these articles with us at some length, 23 but in order to touch base on what you testified for with Mr. 24 Heineman, the authors of these articles, that is Jirasek and 68 1 Pazderova, ascribe -- first of all, they knew about 2 hexachlorobenzene being in the chemical, did they not, sir? 3 A. Yes. 4 Q. And they knew that the hexachlorobenzene was one of 5 the chemicals to which these.workers were exposed, did they 6 not? - , '7 A. , Yes. 8 Q. But they ascribed, did they not/ that the effects 9 suffered by these workers that they studied came from the 10 TCDD? 11 A. I belieye "that that was stated in the Pazderova 12 paper. J 13 Q. Yes. Now, Doctor,-with respect to the effect of 14 other chemicals mixed with TCDD, are you familiar with the 15 various studies by, for instance, by Goldstein in his 16 article, Plantiff1s Exhibit 1656, where he said the potency 17 of TCDD in producing, hepatic porphyria suggests that even 18 slight contamination of environmental chemicals where TCDD or 19 chlorinated dibenzofurans may contribute substantially to the 20 porphyrinogenic effect of these chemicals. 21 MR. 'HEINEMAN: Excuse me just a moment, Doctor. May 22 counsel approach the bench, Your Honor. 23 THE COURT: Sure. 24 (At this time a conference was had at the bench out 69 i 1' of the hearing of the jury-) - 2 MR. HEINEMAN: Nov?-Mr . Garr has gone into 3 Plaintiffs' Exhibit 1673, the Goldstein article and -- 4 THE COURT: I thought he said 1656. 5' MR. HEINEMAN: That's the first item on 1673 is the 6 article Plaintiffs1' Exhibit 1656. 7 THE COURT: All right. 8 MR. HEINEMAN: This was not covered in the redirect 9 examination. Redirect examination had nothing to do v/ith 10 this article, and I object to it as going beyond the scope. 11 MR. CARR: Your Honor, the,redirect examination had 12 a great deal to do with porphyria and what causes porphyria, 13 and counsel went into it at considerable length. 14 MR. HEINEMAN: Well, I disagree, Your Honor, plus 15 the fact that he's talking-- 16 MR. CARR: You disagree? You think you did not get 17 into p,orphyria? -i i 18 THE COURT: My notes indicate that yesterday you did 19 go into porphyria, which is the basis of my ruling on the 20 last objection. 21 MR`. HEINEMAN: Porphyria.is one thing, Judge, but 22 now he's going into this business about whether or not dioxin 1t 23 can cause in other environmental chemicals through the enzyme 24 induction,' business,, the thing that he cross-examined Kilgore \ ! 70 1 on this subject after going first through that AMA statement 2 on enzyme- induction and then down through into this thing,and 3 this was not covered with this witness at all. 4 MR. CARR: ,Your Honor, .'all kinds of health effects 5 were covered with this v/itness on redirect examination. 6 Simply because they chose not to ask a question about an 7 exhibit that we have that shows health effects surely doesn't 8 mean that I cannot cross-examine this witness on health 9 effects caused by dioxin. 10 THE COURT: I think the area was covered. I don't 11 think it's outside the scope. * Again I'll -- I'm going to 12 overrule your objection. I'll make it a continuing objection 13 to this line of questioning. 14 MR. HEINEMAN: Thank you, sir. 15 Q. Doctor, to help you in this area when you testified 16 as to what chemicals may or may not do to workers, did you 17 have in mind the potentiating effect that these chemicals may 18 have one upon the other when they're mixed together? 19 A. Yes. 20 Q. All right. Then in that regard do you agree a s 1-- 21 with th statement that Goldstein has made here as I read it 22 to you? It's right at the very top of,the exhibit that I've 23 given you, sir. 24 A. Well, no, sir, I don't. 71 1 'MR. HEINEMAN: Excuse me, which exhibit has he been ,i 2 handed. 3: MR. CARR: 1 6 7 3 Counsel. 4 Q. , You don't agree with what Goldstein says about the 5 potency of TCDD? 6 A. No, sir, you asked me a question relative to. 7 potentiation by-- 8 Q. My question, Dr. Dost. Do you or do you not agree 9 with the statement made there by Goldstein, the potency -- 10 quote " the potency of TCDD in producing hepatic porphyria 11 suggests that even slight contamination of environment 12 chemicals,with TCDD or chlorinated- dibenzofuraris may 13 contribute substantially to the porphyrinogenic effects of 14 these chemicals". Do-you agree or disagree? 15 A. That's possible. -I don't know what-she means by 16 slight. 17 Q . .Well, do you agree or disagree with this statement, " 18 Dr. Dost? 19 A. . I guess I would have to say that I would agree if 20 there's enough TCDD there. > 21 Q. What it says, doesn't it say, Doctor, that even 22 slight contamination of these chemicals with TCDD may cause 23 these chemicals to be more porphyrinogenic than they would, 24 have otherwise been? Isn't that exactly what it says? It 72 1 says mayi ,,cr ontribute substantii ally to the porphyrmogenic 2 effects of these chemicals? 3 A. It's not going to make those chemicals more 4 porphyrinogenic. 5 Q. Dr. Dost, that isn't what I asked you. I asked you 6 isn't that what this statement says? 7 A. No, sir it dpesn't. 8 Q. The words may contribute substantially to the 9 porphyrinogenic effects of these chemicals, do you understand 10 what that phrase means> Dr. Dost? 11 .A. Yes, I understand what that -- 12 Q. It means that something put in there contributes to 13 the effects of the chemicals themselves, doesn't it, sir? 14 A. Perhaps we should clarify the definition. 15 Q. Excuse me, Doctor, /could you-- 16 A. No, sir, I don't-- no, sir it -- . 17 Q. The words may contribute substantially to the 18 porphyrinogenic effects of these chemicals doesn't mean that 19 that which precedes it causes these -- the porphyrinogenic 20 effects of these chemicals to be increased? 21 A. It may -- 22 Q. Are you saying it doesn't say that, Dr. Dost? 23 A. No, sir, it doesn't. 24 Q. All right. That's the way you read this, sir? \ 73 ' 1 A. May X explain how I'read it? 2 Q. Sir, I'm asking you. Dr. Dost, that the way that 3 you have just stated is the way that is read, should be read 4 according to you? 5 . A. There is a semantic problem there. 6 Q. Dr. Dost, there may be all kinds of problems there, 7 but if I argued semantics -- all I'm simply asking you, sir, 8 doesn't this sentence mean that the TCDD, when it's even 9 slightly contaminating these environmental chemicals, may 10 contribute substantially to the porphyrinogenic effects of 11 those chemicals that it is contaminated with? 12 A. No, sir. 13 Q. Doctor, how else can you interpret this sentence 14 except -- well, let's go one at a time. The potency of TCDD 15 in producing hepatic porphyria, you understand that, don't 16 you, sir? 17 A. Yes. 18 Q. Do you agree that rTCDD is a potent cause of hepatic 19 porphyria? 20 A. In experimental animals it certainly is. 21 Q. No, Doctor, I*didn't ask you that. My question is 22 do you agree that TCDD is a potent in producing hepatic 23 porphyria? 24 A. Yes. 74 1 Q. And the evidence of that, Dr. Dost, is that it does 2 it in experimental animals, isn't that correct, sir? 3 A. That's correct. 4 Q. But the conclusion that you reached from these 5 experiments is that TCDD is a potent producer of hepatic 6 porphyria, correct, sir? 7 A. Yes. 8 Q. And, Doctor, then we have no quarrel with the truth 9 or the falsity of that statement, do we, sir, TCDD is a 10 potent producer of hepatic porphyria? 11 A. That's correct. 12 Q. And the next statement. This fact suggests that 13 even slight contamination of environmental chemicals with 14 TCDD. Now we're in agreement on what that means, aren't we, 15 sir? 16 A. Yes. 17 Q. Slight contamination, a little bit of TCDD in these 18 environment chemicals, correct, sir? 19 A. Yeah. 20 Q. And then what does it say will happen or can happen 21 or may happen by this slight contamination? 22 A. What it says is that the TCDD by itself may add to 23 the effect that the other chemicals exert. 24 Q. Oh, Doctor, it says quote may contribute 75 1 substantially to the porphyrinogenic effects of these 2 chemicals. What chemicals are they talking about, Doctor, in 3 that phrase? 4 hi, W e 1re talking about the other chemicals that might 5 be in a mix. 6 Q. Yes, and it means it may contribute substantially 7 to the effects of these chemicals doesn't it, sir? 8 A. No, sir. 9 Q. Oh, isn't that exactly what it says, may contribute 10 substantially to the porphyrinogenic effects of these 11 chemicals? 12 A. It has no effect on the effects of these chemicals. 13 Q. Doctor, what I'm asking you, you say that it has no 14 effect upon these chemicals, that's what you're saying, but 15 isn't Dr. Goldstein saying that it does, that it may 16 contribute substantially not just to its own porphyrinogenic 17 effect, but it may contribute substantially to the 18 porphyrinogenic effects' of these environmental chemicals? 19 A. No, sir, I don't believe that it does. 20 Q. All right. You have the right, Dr. Dost, to 21 disagree with that -- with this statement, have you not, sir? 22 A. That's correct. t 23 Q. But you don't have'the right, do you, sir, to say 24 that it's1not talking about the porphyrinogenic effects of 76 1 these chemicals has contributed substantially to, do you, , 2 sir? 3 A. ,I cannot argue with the words that are here. 4 Q. That's right. 5 A. But I do not agree with your definition, with your 6 interpretation of the words. 7 Q. Doctor, how else can you interpret the words that 8 even slight contamination may contribute to the effects of-- 9 it doesn't say increase the porphyria, because of the TCDD IQ being added to it, that is, the porphyria caused by TCDD and 11 the porphyria caused by the chemicals. What it says is that 12 TCDD contributes to the' effects of these chemicals in causing 13 porphyrinogenic effects, doesn't it, sir? l 14 .A. Those are the words that are were used. There are 15 no other chemicals in this experiment. 16 Q. Sir? 17S A. There were no other chemicals in this experiment. 18 Q. There were no' other chemicals, sir? What you're 19 now guarreling with is the conclusion reached by the author, 20 aren't you, sir? 21 A. I do not believe that the author-- 22 Q. ' Excuse me. What you're quarrelling with, Doctor, is 23 the conclusion reached by the author, aren't you, sir? 24 A. I'm quarrelling, I think, sir, with your 77 1 interpretation of author's conclusion. 2 Q. Doctor, didn't you .just say that you did not 3 believe there were' other chemicals- involved and didn't you 4 mean by that to knock the conclusion reached by the author? 5 A. The author studied only TCDD in this experiment. 6 Q. Excuse me, Doctor, could you ansv/er that question, 7 sir. . 8 `A. I am disagreeing with the conclusion as it is 9 worded in this statement. 10 Q. That's exactly what I asked you. You are 11 disagreeing with the words, with the conclusion reached by 12 that statement, aren't you, sir, in that statement; isn't 13 that what you just said? 14 A. It is an unclear statement. 15 Q. Didn't you just say you're disagreeing with that 16 conclusion, Dr. Dost? 17 A. That I am disagreeing with your contention that it 18 can -- that it causes other chemicals to be more 19 porphyrinogenic. 20 Q. Doctor, that isn't my contention. It is my 21 position as an advocate of my client, but I'm not a 22 toxicologist, and I'm not a scientist. My question is did 23 you not just a second ago agree that you disagreed with the 24 conclusion reached by the author of this article? 78 1 A. We have a problem. You read this sentence one way 2 and I read it another way. 3 Q. Dr. Dost, that isn't what I'm asking you. My 4 question now is just simply that did you just -- maybe you 5 didn't mean to say it, but didn't you just say a few seconds 6 ago that disagreed with the conclusion reached by this 7 author? 8 A. If this conclusion means that TCDD causes other 9 chemicals to be more porphyrinogenic, I certainly disagree. 10 I do not believe that that's what it means. 11 Q. All right. Well, what else does it mean, Doctor? 12 A. It means that TCDD as a porphyrinogenic agent may 13 very well add to the porphyrinogenic effect. In other words, 14 there are two sources of a porphyrinogenic effect and that 15 would be the way that this author, I'm sure, intended that 16 statement bo mean. 17 Q. Doctor, you don't even have to be a scientist to 18 know that. What you're saying is one plus one, that is, the 19 porphyrinogenic effects of TCDD, being one, added to the 20 porphyrinogenic effects of another chemical, being one, that 21 equals two? 22 A. Exactly. 23 Q. Doctor, you don't need to have a scientific study 24 to determine that, do you, sir? 79 1 A. You`certainly need a scientific study to determine 2 whether TCDD is porphyrinogenic. 3 Q. Doctor, that's a given in this situation. You*re I 4 not quarrelling with that. We have already agreed that 5 that's the case if it happens with experimental" animals, so > 6 w e 're not quarrelling with that point. I'm now asking you ,7 what-- Isn't it a fact you don't need a study to deduce that 8 one plus one equals two? 9 A. That's correct. 10 Q. And this study, you know, doesn't say that, and you 11 don't need to have it to say that. Otherwise, what's the 12 significance of that statement at all, Doctor? 13 A. Because the author is trying to give some idea of 14 what the significance of TCDD as it exists as a contaminant 15 in any chemical, that author has done absolutely nothing in 16 that paper to even contemplate an interaction between TCDD 17 and some other chemical to cause an effect that neither by 18 itself is. causing. 19 Q. Doctor, you may quarrel with what the author has 20 done, but he discusses ALA synthetase, does he not? 21 A. She does, yes. 22 Q. Discusses porphyrinuria? 23 A. Correct. 24 Q. And talks about the dose response for 80 1 porphyrinogenic action of TCDD should be determined after 2 longer exposure since effects may be seen at lower doses 3 after longer periods of exposure? 4 A. That's correct. .5 Q. And also discusses the fact that TCDD is the most 6 potent compound known to produce porphyria in mammals? 7 A. Yes. 8 Q. Doctor, there's no question in your mind but what 9 human beings are mammals, correct,*sir? \ 10 A. That's correct. 11 Q. And human beings would be included in that 12 sentence, wouldn't it, sir? 13 A. Certainly. 14 Q. Yes. And, Doctor, the next sentences discuss 15 Orachlor and European PCB, does it not, sir? 16 A. I don't remember. I do not have that paper in 17 front of me, sir. 18 Q. You haven't been given 'that? 19 A. I have only have this. 20 Q. . All right. 21 MR. CARR: Would you give 1656 to the witness. 22 Q. I thought you were reading along with me. I'm 23 sorry. Page 926 is where I'm reading. Now, Doctor, the 24 author does discuss Orachlor and pcb's from Europe? 81 1 A. Yes. 2 Q. And after making -- Doctor, there's no question 3' but what in this paragraph that you now see -- you see this, 4 sentence that we're discussing that's the subject of our 5 topic so far? 6 A. That's correct. 7 Q. And there's no question but what she is discussing 8 TCDD Orachlor and other pcb's, correct, sir? 9 A. Yes. . ; i 10 Q. After making those discussions, she'says the 11 potency of TCDD in producing'hepatic7porphyrias suggests, that 12 even slight contamination of environmental chemicals with 13 TCDD may contribute substantially to the porphyrinogenic 14 effects of these chemicals, right, sir? 15 A. Yes. 16 Q. Doctor, the TCDD is contributing to the effect of 17 other chemicals, is it not, sir? 18 A. It is contributing to the total porphyrinogenic 19 effect. 20' Q. No, that would be the total porphyrinogenic: effects 21 of the chemicals plus the TCDD. 22 A. No, sir. The chemicals -- she's not talking about *1 \, 23 interaction of the chemicals.: In fact, she Vs discussing, you 24 know, we do not know that, for example, pcb's, as I recall, 82 1 do not have a history of causing porphyria. They may, but 2 the effect of porphyria found in PCB's, for example, in Japan 3 that were contaminated with furans was ascribed to the 4 furans, not to the pcb's. The point is that -- 5 Q. Now, when you say furans, you mean the dioxin 6 furans, don't you, sir? 7 A. The furans that are the dibenzofurans. 8 Q. Yes, that's the ones, the things that are created 9 at the same time the dioxins are created in these chlorinated 10 phenols, correct, sir? 11 A. They been identified in some, yes. 12 Q. Doctor, doJyou agr with the statement by Borman 13 and others in the paragraph there where it says, with the 14 plethora of environmental chemicals it seems possible that 15 exposure to one chemical may induce residual marrow damage 16 that would make an individual more susceptible to a second 17 chemical insult, although that hypothesis remains to be 18 tested? Do you agree with that statement? 19 A. That's not an unreasonable statement. 20 Q- Then I take it you do agree with it? 21 A. Yes. s 22 Q. And, Doctor, do you agree with the statement 23 Cantoni and Salamony that the high potency underlines the 24 importance of considering the potential health hazards when S3 1 even slight contamination of the environment with this 2 compound, 'that is, TCDD occurs? 3 A. I don't know what they mean by slight, of course, 4 but I have to go by the -- Cantoni did work very similar to 5 that of Goldstein and worked out a dose response 6 relationship. 7 Q. Doctor, do you agree with the statement that even 8 slight contamination of the environment with TCDD should be 9 considered from the viewpoint of potential health hasards? 10 A. Yes, that's what we do all the time. 11 Q. Doctor, do you also agree that there are profound 12 long-term effects from exposure to dioxin molecules? 13 A. Well, that's a term that Oliver uses. 14 Q. Yes* my question is do you agree with what he says? 15 A. We know that it causes chloracne. 16 Q. Doctor, excuse me, could you answer that question1 17 please, sir? 18 A. Yes. 19 Q. The answer is yes? 20 A. With respect to chloracne at least, yes. 21 Q. Doctor, there were a lot more effects discussed by 22 Oliver in his article than chloracne, was there not, sir? 23 A. There was discussion of cholesterol levels. 24 Q. Could you answer my question, Dr. Dost, there were 84 1 lot of other -- 2 A. There were a f e w other: 3 Q. Health effects discussed in addition to just 4 chloracne, wasn't there, sir? 5 A. There were a few, not a lot, sir. 6 Q. Well, Doctor, there was discussed in the case -- ? 7 MR. CARR: Could you give him 1645 please. 8 MR. HEINEMAN: Excuse me, Your Honor, may counsel 9 approach the bench a minute. 10 THE COURT: Sure. 11 (At this time a conference was had at the bench out 12 of the hearing of the jury.) 13 MR. HEINEMAN: I just wanted to be sure for the 14 record that my continuing objection applies to everything on 15 16 THE COURT: It applies to -- your continuing 17 objection applies to everything; out of 1673. 18 MR. HEINEMAN: 'Everything on 1673. 19 THE COURT: That1s what I thought. 20 MR. HEINEMAN: That's the way I interpreted it, too. 21 ='THE COURT: That's the way I interpreted it, too. 22 MR. HEINEMAN: But I wanted to be sure. Okay. 23 THE COURT: Okay. i 24 (The following proceedings were had in open Court.) 85 1 Q. -Doctor, the first Patient A had problems of -- one 2 of which was a very high cholesterol in addition to the 3 chloracne, was it riot, sir?. 4 A. Yes, he had a very high normal cholesterol. s' Q. He had a very high normal cholesterol? Where does 6 it say that, Doctor? 7 A. His cholesterol was in the range that is usually 8 found in medical texts as on the high side of normal. 9 Q. Doctor, where does this statement show that he had 10 a high normal cholesterol? 11 A. It states that his level was 302 milligrams per 12 hundred ml, which is in the terms of this paper surprisingly 13 high for his age. 14 Q. Yes, that.'s what Oliver says, isn't it, sir? 15 A. That's his statement, yes. 16 Q. Doctor, the next patient had collicy pains, 17 flatulence, loss of weight, excessive fatigue, oppressive 18 headaches, loss of vigor, blurring vision, neuropsychiatric 19 problems, correct, sir? 20 A. Yes, this is what the experienced-- yes. 21 Q. And high cholesterol as well? 22 A. Yes. 23 Q. Nov/, Doctor, that's considerably more than just 24 chloracne, is it not, sir? 86 1 ~ A. Yes. 2 Q. The third one did not get chloracne, but had a 3 large number of symptoms, including loss of energy, loss of 4 concentration, indigestion, flatulence, intermittent 5 diarrhea, palpations, flickering vision from the nerve 6 peripheral visual fields, difficulty focusing his eyes, 7 difficulty in sleeping, paralygic pain, oily skin, longer 8 hairlines, correct, sir? 9 A. Yes. 10 Q. And again hypercnolesterols, correct, sir? 11 A. Yes. 12 Q. Now, that is significantly more-- well, he didn't 13 even have chloracne there, did he, sir? 14 A. No, according to their description. 15 Q. Now, the author describes those effects after two 16 years as being profound long-term effects, doesn't he, sir? 17 A. Yes. 18 Q. And the author also says that this evidence 19 suggests that those accidentally exposed to dioxin may be 20 subject to long delayed toxic effects, does he not, sir? 21 A. Yes, he does that. 22 Q. Do you quarrel with that statement, Dr. Dost? 23 A. On the basis of his evidence here, that seems 24 possible. 87 1 Q. Well, ray question is do you quarrel with it, 2 Doctor? 3 A. No. 4 Q. All right. Doctor, do you disagree with the AMA 5 statement that because TCDD. is a very powerful enzyme inducer 6 that in addition to altering normal enzyme activity it may- 1 potentiate the harmful action of other toxins or even render 8 an otherwise innocuous agent toxic? Do you d'isagre with that 9' statement, sir? j 10 A. Yes, I do. 11 Q. Doctor, you're not a M.D., are you, sir? 12 A. No, I'm not. 13 Q. And you're aware of the fact that Dr. Kilgore -- 14 you do know Dr. Kilgore, don't you,sir? 15 A. Yes, I'm acquainted with Dr. Kilgore. 16 Q. And he's not an M.D. either, but he served with a 17 lot of doctors, did he not, sir? r 18 A. He served on the AMA panel, I believe. 19 Q. Yes. Doctor, you've worked with animals. Have you 20 not seen that the TCDD in animals potentiates the harmful 21 action of other toxins or renders an otherwise innocuous 22 agent toxic? Have you seen not seen that, sir? 23 A. I disagree with the last part of that question, 24 sir. 88 1 Q. Doctor, do you believe that these people that made 2 up the AMA panel just pulled that' out of the air? 3 A. I know of nokinstance where it makes -- ~4 Q. Doctor, that isn't what I 'asked you. Do you believe 5 that they pulled this statement-- you are familiar with the 6 statement that I've read, aren't you, sir? 7 A, Yes. 8 Q. Have you ever -- have you ever told the AMA -- and 9 this was made by them was in 1984r wasn't it, sir? 10 A. I think so, I don't recall ,'84, '83, 11 Q. Have you told them that you disagreed with their 12 statement that* it may potentiate the harmful action of o4ther 13 toxins? 14 A. I agree that it's possible that it can potentiate 15 the action of other toxic substances. It also can decrease 16 the action of other toxic substances, I disagree with th' 17 statement that it will make innocuous materials harmful, 18 Q. Have you' ever seen any studies that would suggest 19 that what they're saying is false? 20 A. I've never seen any study that suggests that it's21 true. 22 MR. CARR: Your Honor, would you direct the witness 23 to answer my question. 24 THE COURT: The witness is so directed. 89 1 A. No, I have not seen specific studies that address 2 that question. 3 Q. Doctor, you made statements as to the content of 4 2.4.5- T in the world insofar as its levels are concerned. Do 5 you recall you said that it's one part per million? 6 A. I made that assumption. 7 Q. My question is do you recall you said that, sir? 8 A. Yes. 9 MR. CARR: Could you give Plantiff's Exhibit 1486 to 10 the witness please. 11 Q. Doctor, for your information Plantiff's Exhibit 12 1486 is an analysis by Monsanto of the TCDD content of the 13 2.4.5- T produced by Monsanto in the period of time from 1958 14 to 1965. Now, that exhibit shows in parts per million levels 15 many, many, many times higher than one part per million, 16 doesn't it, sir? 17 A. Yes. 18 Q. It shows the very lowest of TCDD content of 19 Monsanto produced 2,4,5-T is five parts per million, isn't 20 that correct, sir? 21 A. No, sir. 22 Q. Do you see any, sir, that's lower than five parts 23 per million in this document? 24 A. Yes, I see here in paragraph three, samples range 1 from 1966 to '69 -- excuse me before then Roush sa 2 ranged from undetectable -- 3 Q. Do you have I486? 4 A. I, have 1486. 5 Q- Apparently I don't. 6 A. The word undetectable is used here, the 7 Paragraph 3,-sir. 8 Q. I don't even know what that is. 9 . MR. CARR: Look for this exhibit that's 10 Mine is marked Plantiff's Exhibit 1486. Mr. Nassi 11 that the one he used is not an exhibit in the case 12 never identify who prepared it. See if you got an 13 in there. Look for 1487. 'That's the document tha 14 identified by the CL number. , You're in the 1600s| 15 THE CLERK: Here it is, Mr. Carr. 16 Q. 1487 instead of 1486. Now, let me start 17 again, Dr. Dost. This Exhibit 1487 was represente 18 least to be the analysis of dioxin in 2,4,5-T prod i 19 Monsanto in the period of time from 1958 to 1965.1 20 Doctor, this document shows, does it not, that the 21 level of TCDD found in their 2,4,5-T was five part i 22 million? 23 A. Excuse me. X don't know which of the di I 24 refer to here. I don't think they had any way ofi ! 91 i 1 much of this was 2,3,7,8 and so on. 2 Q. Did 1 say 2,3,7,8 in my question? 3 J A. I guess you didn't, sir, I'm sorry. j 4j Q. I didn't , did I? 5 A. No. 6 Q. Because they report -- in back in this -- strike 7 that. In any event, the TCDD described there is five parts 8 per million, isn't it, sir, the lowest amount? 9 ' A. Lowest amount, yes, sir. L- 10 Q. A n d `up until" 1982, thereabouts, '81 when isomer 11 specificity was more widespread in the ability of chemical 12 companies and others to be isomer specific a finding of TCDD 13 in a chemical one had no way of knowing how much was 2,3,7,8 3.4 and how much might have been some other TCDD, isn't that 15 correct, sir? 16 A . r Yes, sir, that's correct. 17 Q. So far as we know, the'Agent Orange, except for 18 ' samples they've tested later than that, could have been 19 largely 2,4,5-T that contained very little of 2,3,7,8-TCDD, 20., isn't that correct, sir? 21 A. Possibly, yes. 22 Q. Because all we know here is that these were levels 23 of the tetras, and we have no way,of being specific, isn't 24 that correct, sir? 92 1 a. Yes. 2 Q. Now in point of fact that actually was true as well 3 in the TCDD content found in various places around the world 4 including Spolana, Czechoslovakia and Seveso Italy at that 5 time, isn't that correct, sir? 6 A. Yes. 7 Q. So when these authors,,Reggianni and others, 8 reported levels of 2,3,7,8-TCDD in the chemicals, actually 9 what they were reporting were levels of TCDD's without isomer 10 specificity, isn't that correct, sir? 11 A. Yes. 12 Q. As far as we know and as far as Reggianni and 13 others know the chemicals spilled in Seveso, Italy could have 14 contained very high levels of 1,3,6,8-TCDD and very low 15 levels of 2,3,7,8-TCDD, isn't that correct, sir? 16 MR. HEINEMAN: Excuse me, Doctor. May counsel 17 approach the bench, Your Honor. 18 THE COURT: Sure. 19 (At this time a conference was had at the bench out 20 of the hearing of the jury.) 21 MR. HEINEMAN: Again Mr. Carr goes totally beyond 22 the scope of the redirect examination. I object to it as 23 being beyond the scope'. This was covered with Kilgore. It 24 was not covered with this witness. 93 1 MR. CARR: The level of 2,4-- ..of TCDD in 2,4,5-T 2 was gone into by Mr. Heinemah, and this subject is certainly 3 -- this kind of testimony -- 4 THE COURT: Well, it was in redirect. 5 MR. HEINEMAN: It had nothing to do with whether or 6 not the levels reported by Reggianni and others in these 7 other industrial accidents was 2,3,7,8 or was some other 8 isomer.. Those were gone into very specifically with Dr. 9 Kilgore and not with this witness.. 10 MR. CARR: The subject is contamination of the 11 environment with TCDD. You brought up the subject that there 12 couldn't be very much 2,3,7,8-TCDD in the environment of 13 2,4,5-T has only got the one part per million. The entire 14 area was gone into. 15 THE COURT: Objection is overruled. I 16 (The following proceedings were had in open Court.) 17 Q. Could you answer my question please, Dr. Dost? 18 A. I would appreciate if you could repeat it. 19 MR. CARR: Could you read it to him. 20 (Court reporte^r read baick the last question.) 21 A. Yes, that's .correct. It's possible. 22 Q. Or it could have been vice versa, it could have 23 been high levels of 2,3,7,8 TCDD and low levels of the other 24 tetras, correct, sir? 94 1 A. Yes. 2 Q. What they reported in these studies with which 3 you're familiar is simply levels of TCDD and not which -- how 4 much was 1,3,6,8 or 2,5,7,2 or any one of other 22 isomers, 5 isn1t that correct, sir? 6 A. Yes. 7 Q. The same thing is true, is it not, Dr. Dost, about 8 the reports for the 2,3,7,8-TCDD level spilled in the Times 9 Beach or sprayed rather in the Times Beach area, what they 10 reported in those years again was total levels of TCDD, 11 correct, sir? 12 A. Yes. 13 Q. So it could have been, the TCDD content at Times 14 Beach could be largely 1,3,6,8-TCDD or some other isomer of 15 TCDD and very little 2,3,7,8-TCDD, isn't that correct, sir? 16 A. That's possible, yes. 17 Q- Or again vice versa, we simply have no way of 18 knowing, because they were not isomer specific at that period 19 of time. We simply have no way of knowing how much, for that 20 matter if any 2,3,7,8-TCDD was in Seveso or Times Beach or 21 Spolana, Czechoslovakia? 22 A. On the basis of those analyses back then, that's 23 correct, yes. 24 Q. Do you know whether or not anybody has re-analyzed 95 1 since they've got isomer specific the soil at Seveso? 2 A. I don't remember, sir. 3 Q. Do you know if anybody since they got isomer 4 specific anybody has ever re-analyzed the soil at Times 5 Beach? 6 A. I believe that's been done. 7 Q. And what levels were reported in that, sir? 8 A. I really don't -- 9 Q. And who did it, sir? 10 A. I really don't remember the levels that were 11 found. I don't remember who did it. I'm aware of this 12 primarily through research that was done with Times Beach 13 soil, McConnell's work, for example, in which apparently the 14 isomer specificity had been determined, but I do not remember 15 any analytical work per se, on this. 16 Q. You actually know more than that, don't you, Dr. 17 Dost? You know that Shroy analyzed this soil -- well, he 18 wasn't completely isomer specific either, was he? You do 19 know that Shroy analyzed the Times Beach soil, don't you, 20 sir, through the Dayton Laboratories with Dr. Hileman? 21 A. I know that he analyzed soil or had soil analyzed 22 from Eglund. I don't remember the Times Beach, his work in 23 Times Beach. 24 Q. Doctor, you read his Exhibit 1148, the work that he 96 1 did dealing with the mobility of dioxins, didn't you, sir, 2 that he wrote in 1984? 3 ' A. Yes, I don't remember details of it though, I'm 4 afraid. 5 Q. Doctor, in any event, the levels of TCDD in the 6 tank car, you know, in this case there was isomer specificity 7 by Dr. Christopher Rappe, don.'t you, sir? 8 A. Yes, sir. ii '9 Q. So far as you know is it a fair statement that the ! 10 only specific content, 2,3,7,8-TCDD content of a chemical 11 contaminated by it is the chemical analyzed in this case by 12 D r . Rappe? ' i 13 A. I don't know whether that's the only such' case, but ( *! 14 I know that it was done in this case. [I 15 Q. I'm sorry. Dr. Dost? ^ 16 A. Like I say, I don't know whether it's the only such 17 case. I know that it was done in this case. 18 Q. -All right. Do you know of any other case ]or any 19 other spill or any other occurrence where they analyzed 20 specifically for 2,3,7,8-TCDD after they had isomer 21 specificity ability? 22 A. I don't remember any others. 23 Q. And, Doctor, all the -- all these other studies, it 24 may be, all these other accidents it may be that the TCDD 97 1 isomer present in these other accidents was large -- other 2 accidents was largely something other than 2,3,7,8, isn't 3 that correct, sir? 4 A. That's possible, yes. 5 Q. But we know in this case -- by this case I mean the 6 Sturgeon case, we know that the TCDD isomer present here was 7 largely 2,3,7,8, don't we, sir? 8 A. That's my understanding. 9 Q. Now, Doctor, insofar as the volatility of -- strike 10 that. If the TCDD contaminant that was in 2,4,5-T that you 11 used as a standard was one part per million, the fact that 12 Monsanto's 2,4,5-T product had as high as 55 parts per 13 million that would make it difference in your calculations, 14 wouldn't it, sir? 15 A. I used one part per million as a long-term overall 16 average contamination level, because it was a very crude 17 relationship that I was drawing. 18 Q. Doctor, what you said was the calculation that you 19 made for this jury was based upon 2,4,5-T containing one part 20 per million of TCDD, did you not, sir? 21 A. Yes. 22 Q. In point of fact, you know from Plantiff's Exhibit 23 1487 that the TCDD content of the 2,4,5-T produced by 24 Monsanto was ranging from five to 55 times greater than one 98 1 part per million, don't you,sir? 2 A. . During this period, yes. 3 Q. And the calculations that you made would have to be 4 multiplied by five or 55, wouldn't they, sir? 5 A. Or divided by the levels later after 1970, let's 6 say. 7 Q. What levels later dp you have of Monsanto's 8 2.4.5- T, sir, that would be other than these that I've given 9 you here? 10 A. Monsanto didn't make 2,4,5-T after sometime in the11 late sixties, if I remember. 12 Q. They didn't make it after 1970. The level that you 13 know of for 2,4,5-T is as far as Monsanto is concerned their 14 contribution to the environment they're all at levels of -- 15 well, there's just a couple levels .at five, all the others 16 are -- go from, as I say, from ten, 16, 17, 44, 41, 22, 55 17 parts per million, don't they, sir? 18 A. According to this, yes, sir. 19 Q. Mow, Doctor, insofar as the contribution of the 20 environment would you say that if Exhibit 1487 is typical of 21 Monsanto's production during the period of time it produced 22 2.4.5- T that it contributed substantially to the TCDD in the 23 environment through the 2,4,5-T production? 24 A. Well, I'm sure that it would have contributed to. 99 1 what had been distributed with 2,4,5-T. 2 Q. My question was it would contribute substantially 3 to that, sir. 4 A. Well, I don't know what -- I don't know how much of 5 the 2,4,5-T that was used. There were many producers, and I 6 don't know how much this contributed to-- 7 Q. Doctor, we have testimony in this case that in one 8 year they produced for sale in the United States nine million 9 pounds of 2,4,5-T. 10 MR. HEINEMAN: Objection, your Honor, could we have 11 a citation for that? 12 MR. CARR: Surely. Well, I can't put my hand on it 13 this minute, counsel, but it's in evidence. I'll have to 14 supply it later, because it's not immediately available to 15 me, Your Honor, but that is the evidence, and we have 16 documentation for it if counsel -- 17 MR. HEINEMAN: May v/e go to the bench, Your Honor. 18 THE COURT: Sure. 19 (At this time a conference was had at the bench out 20 of the hearing of the jury.) 21 MR. HEINEMAN: Mr. Carr continues to apparently 22 flaunt the order of the Court and continue to make statements 23 in front of jury, speaking objections. 24 THE COURT: I think he was answering yours. 100 1 MR. HEINEMAN: What I'm saying is my understanding 2 of the evidence in this case is that 2,4,5-T that was 3 produced by Monsanto during the Vietnam war period was done 4 under government contract and almost every bit of it went to 5 Vietnam, and it wasn't used in United States. That's my 6 recollection of the testimony. 7 THE COURT: Well, first of all, the first part of 8 what you said, I thought that was a colloquy between the two 9 of you and not a speaking objection. I don't think either of 10 you went beyond my order, so I disagree that it's 11 characterized as a speaking objection. As to the other thing 12 we been up here long enough to take a short break. Why don't 13 we do that. You find this at this break. 14 MR. CARR: If I have it with me. I can go to the 15 office. 16 THE COURT: Pine, okay, we'll take a short recess. 17 (The following proceedings were had in open Court.) 18 THE COURT: Ladies and gentlemen, we'll take a short 19 recess at this time. I would remind you that the 20 admonishments that I gave you earlier will apply during this 21 break also. Court's in recess. 22 (At this time a short recess was taken.) 23 24 (The following proceedings were had in open Court.) 101 1 MR. CARR: Counsel, I'm ready to approach the bench 2 again if you are. 3 THE COURT: Okay. Gentlemen. 4 (At this time a conference was had at the bench out 5 of the hearing of the jury.) 6 MR. CARR: I have supplied the citation to Mr. 7 Heineman, and in fairness to him I just gave it to him right m 8 when you came in. And it is not -- you can interpret Dr. 9 Wilson's testimony on May 16th any way that you would like. 10 He says at one place there's 36 thousand pounds, another 11 place is 60 percent, and it is not clear as to what domestic 12 production was nor is it clear what was sold, how many pounds 13 was sold in the United States in this period of time, and we 14 have some documents that would suggest it was much higher 15 than what other documents say, but what I'll do is rephrase 16 my question so to avoid trying to -- unless counsel has got 17 some better- interpretation of that testimony than I have, 18 cause I read it. 19 THE COURT: Rephrase it in what respect? 20 MR. CARR: lust say as far as the -- whatever 21 2,4,5-T was sold in the United States if Monsanto's 2,4,5-T 22 had these levels of dioxin that it would be a substantial 23 contribution without specifying the amounts. 24 THE COURT: Any objection to that? 102 1 MR. HEINEMAN: Yes, because the statement's been 2 made by Mr. Carr, in the record that Monsanto sold nine 3 million pounds of 2,4,5-T domestically. 4 THE COURT: That would have to be taken back. 5 MR. HEINEMAN: That's absolutely not true. When he 6 was looking at with Dr. Wilson is Plantiff's Exhibit 1400 and 7 8 MR. CARR: 1402. 9 MR. HEINEMAN: Well, the record says 1400. 10 MR. CARR: 1400 was looked at and then we got to 11 1402. See, I told you you v/ould be confused. This is 1402 12 that the witness had. We were past 1400 already, we're on 13 1401? 14 MR. HEINEMAN: Where's that nine million thing is again? 16 THE COURT: It doesn't say how much. 17 MR. CARR: It says -- one place it says I have put 18 the two documents together now, 1400 showing the amount that 19 was used domestically.- One place here that's what I was 20 doing with Wilson. Here it says during '65 we supplied 619 21 gallons, which is 16 percent of this total. 619 gallons is 22 six million pounds of 2,4,5 -- of Agent Orange, 16 percent 23 of its total, v/hich v/ould indicate that the total supply 24 v/ould indicate that the balance of it was sold domestically, 103 1 but that's the problem that we got into with Dr. Wilson. It 2 was never, made clear. 3 THE COURT: This is 1400? 4 MR. HEINEMAN: You say six million? That says 619 5 gallons. 6 MR. CARR: Gallons, which is six million pounds. 7 MR. HEINEMAN: Well, it was this graph right here. 8 MR. CARR: This is the graph here. I used this in 9 combination with what was the total supply. 10 THE COURT: Okay. All right. 11 MR. HEINEMAN: And what -- what Wilson said here in 12 referring to this graph that Mr. Carr asked Dr. Wilson it's 13 that -- 14 THE COURT: Show it to me, and I'll read it. 15 MR. HEINEMAN: Nine million pounds. This refers to 16 total for everybody in the country, not Monsanto. Figure one 17 on Page 274, which is the exhibit that Mr. Carr referred Dr. 18 Wilson to as the Court saw in the transcript, says production 19 and domestic disappearance includes military, the 2,4,5-T 20 acid in the U.S. 1960 to 1970. So there just isn't any way 21 in the world that -- 22 MR. CARR: Counsel, I intend to take back the 23 statement of nine million pounds being produced in -- being 24 sold by Monsanto in the United States. 104 1 THE COURT: There doesn't seem to be much of 2 substance to tell you what the limit was. I think what you 3 intend to do with the objection is fine. There just isn't 4 much else to go on. We're still on for arguing that motion 5 tonight, right? 6 MR. HEINEMAN: Yes. 7 8 (The following proceedings were had in open Court.) 9 Q. Dr. Dost, when I suggested to you that Monsanto 10 sold nine million pounds of 2,4,5-T in the United States, 11 that was in error, and we don't know the amount. There was 12 nine million pounds sold in-the United States in a given 13 year, 1964 -- strike that, that isn't even correct. In '64 14 there were nine million pounds used in the United States on 15 nearly eight million acres. Actually the total used in the 16 United States was 8,912,000 pounds. We don't know how much 17 of that was Monsanto's production. I suggested to you that 18 it was -- that Monsanto produced nine million pounds, and we 19 don't know, we have no evidence to support the statement that 20 I gave you. We have a lot of evidence about how much was 21 supplied, but we don't have it for a given year, all right. 22 So I would ask you whatever the amount of 2,4,5-T 23 was that Monsanto sold in the United States it would have in 24 it the same level of contaminant of TCDD's as its-- as the 105 1 material that was sold, as the material that's described in 2 Plantiff*s Exhibit 1487, that is, in 1964, it was 12 parts 3 per million, in 1965 it was as high as 55 parts per million. 4 Now, given that, sir, do you agree that that is a 5 substantially higher level of. contamination than the one part 6 per million that you mentioned earlier? 1 A. 7Yes, that's higher. 8 Q. All right. And, Doctor, depending upon th various 9 exposures of the people to the 2,4,5-T, that would have a 10 great deal to do with how much TCDD in their fat came from 11 Monsanto's 2,4,5-T or from somebody else's, correct, sir? 12 . A. Well, we have no idea who it comes from. The 13 exposure would relate to the amount of TCDD in the fat. 14 Q. You know that Monsanto was a major producer of 15 2,4,5-T up until 1970, you know that, don't you, sir? 16 A. I know that they -- I don't know whether they sold 17 it in agriculture or whether this was the period of -- 18 Q. We have testimony that they did. 19 A. I see. 20 Q. They sold it to the government, and they sold it to 21 agriculture. Their capacity was at least according to the 22 testimony, at least double what was sold to the government. 23 MR. HENEMAN: Citation, sir. 24 MR. CARR: Yes, what I gave you, counsel. I said 50 106 1 percent of their production. t 2 HR. HEINEMAN: In 1964? 3 MR. CARR: Whatever'year it referred to in those 4 pages I gave you. 5 HR. HEINEMAN: One year. 6 Q. In any event, if Monsanto was a major producer of 7 2>4,5-T, the TCDD in its 2,4,5-T would contribute 8 substantially to the TCDD'4found in people's fat tissues, 9 would it not, sir? 10 A. I don't really know. I would expect that's 11 possible. 12 Q. Doctor, you testified for -- you gave a hypothesis 13 or Mr. Heineman based upon one part per million of TCDD in 14 the 2,4,5-T, did you not, sir? 15 A. Yes. 16 Q., Do you recall just doing that just yesterday, sir? 17 A. Yes, yes. . 18 Q. If in fact the Monsanto production was from five to 19 55 parts per million, that's a major contribution to the TCDD 20 in the environment from 2,4,5-T, isn't it, sir, if they're a 21 major producer of 2,4,5-T? 22 A. Well, if this is -- if this is the source of TCDD 23 in the fat, yes, that would have to follow. 24 Q. Doctor, that doesn't take into account the source 107 1' of TCDD in the fat that is a more common contaminant than 2 2,4,5-T, that is, Lysol, does, it, sir? 3 A. I have, no idea. 4 Q. Doctor, you do know tha't Lysol has been used by the 5 American housewife and other commercial cleaners and the 6 hospitals and every place else for many, many years, you know 7 that, don't you, sir? 8 A. Yes. 9 Q. It's much more widely used, more commonly used by 10 the American public, and it would be much more apt to be * 11 exposure to Lysol.than they would to 2,4,5-T, wouldn't there, 12 sir? 13 ;A. But the quantities are vastly lower. 14 Q. Doctor, did you hear the question that I asked 15 you? Could you answer my question please? 16 A. I thought I-was, sir. 17 Q. Would you read the question to him again and ask 18 him-- 19 (The court reporter read back the question.) 20 A. If we disregard amounts, yes. 21 Q. That's what I asked you, Doctor. The ordinary 22 urban dweller doesn't go out the range land like the cattle 23 or does he, sir? 24 ' A. 2,4,5-T and very close relatives have been used for 108 1 years in house and yard maintenance. 2 Q. What's the very close relative? 3 A. Silvex. 4 Q. Silvex is manufactured by Monsanto as well, is it 5 not, sir? 6 A. I don't believe so. I do not know. 7 Q. Well, it makes the 2,4,5-T from which the Silvex is 8 made, isn't it, sir? 9 A. No, they're made by two separate processes. They 10 are different chemicals. One is not a derivative of the 11 other, they're similar. 12 Q. Doctor, directing your attention to the Lysol, you 13 do know that practically all households use Lysol, you do 14 know that, don't you, sir? 15 A. Yes. 16 Q. And that is something that we are all exposed to, 17 aren't we, sir? 18 A. In the absolute sense I suppose, yes. 19 Q. Is there any question about it, sir? Aren't we all 20 daily exposed, every commercial building y e go into, it's 21 been cleaned with Lysol, every household -- = that's an 22 exaggeration, that's not true. It is a very commonly used 23 cleaner in hospitals, in commercial buildings and in homes, 24 is it not, sir? 109 1 A. Yes. 2 Q. .And we are thereby exposed to that cleaner wherever 3 we gor aren't we, sir? 4 A. Vieil, I have a little trouble with the term 5 exposed. I'm not sure that we do. 6 Q. Doctor, does the -- is^ the Lysol used sometimes 7 without washing it off? 8 A. Oh, I suppose sometimes it is, yes. 9 Q. * Well, you know that it's recommended, the 10 manufacturer recommends that it be used with the children's 11 nursery without washing it off, you know that, don't you, 12 sir? 13 A. I find that a little surprising in view of the 14 toxicity of the Lysol. 15 Q. `Vieil, Doctor, maybe that's improperly surprising, 16 because maybe I have misstated just exactly what the 17 manufacturer has said. I don't have the label in front of 18 me. It's been sometime since we've gone into it. You do 19 know that it is used on occasion or more than on occasion 20 without washing it off, don't you, sir? 21 A. I suppose it is. It's not supposed to be. 22 Q. Vieil, and you do know on occasion that it's used in 23 much more strong solutions than recommended as well, don't 24 you, sir? 110 1 A. Well, I would suppose- l 2 Q. ` Not suppose, you been around, you know that for a 3 fact, donf.t you, sir? Lot of people if it says dilute it two 4, to one, why,they want it to be real strong, and they won't 5 dilute it two to one or ten to one or whatever? 6 A. Oh, I'm sure that happens. T Q. Doctor, the Lysol, if it contains 2,3,7,8-TCDD, is 8 something that all of us, housewife to the child, may be 9 exposed to, not just in the surface that it's on, but when 10 it's being used, when it's being sprayed or washed on, isn't 11 that right, sir? 12 1A- I really don't know. I don't think that the 13 exposure to it is all that easy. When you say it's being 14 sprayed *or washed, excuse me, what do you mean? 15 Q. Well, you do know that Lysol comes in a spray can, 16 don't you, sir? 17 A. 1 Yes. 18 Q. And when it's sprayed on, it's in the atmosphere, 19 isn't it, sir? 1 2.0 A. .Well, there are a number of products. I don't know 21 whether the spray configuration,'! don't know what chemical 22 is involved, I know that there are -- 23 Q. .Lysol is what I'm telling you. 24 A. There are -- that's not the only product that goes 111 1 under the Lysol name. I v/as little surprised to find that 2 there are other disinfectants used in products that are 3 called Lysol, and I don't quite know -- A Q. Doctor, you do know that Lysol comes in spray a 5 can? 6 A. I have seen products labeled Lysol in a spray can. 7 Q/ It comes in a spray can, and it's sprayed, isn't 8 it, sir? 9 A. Well, yes, but I'm not sure -- 10 Qi If it comes in a spray can, it's sprayed, isn't it, 11 12. A. Yes. 13 Q. And if it's sprayed, you're capable of inhaling 14 that vapor in the air, aren't you, sir? 15 A. That aersol, yes. 16 Q. Well> the aersol and whatever is attached to the 17 aersol? 18 A. Yes. 19 Q- And if it's' on a table, you're exposed to that, 20 aren't you , sir? 21 ' A. I don/t know-how easy it would be to get it off the 22 table. 23 Q. Doctor, insofar as the volatility is concerned, you 24 do agree -- no, you don't agree, you said TCDD is not i 112 1 volatile, haven't you, sir? 2 A. I 've explained that in great detail. 3 Q. Doctor, have you seen Mr. Shroy's work, 1148, in 4 v/hich he described the volatility? 5 A. I believe I have. I don't remember it. 6 Q. Do you agree with him when he says TCDD is 7 volatile? 8 A. I have told you this before, yes. 9 Q. Well, you said before it's volatile as a piece of 10 metal, haven't you, sir? 11 A. No, sir, X didn't. 12 Q. Oh, you didn't? Well, what did you tell us about 13 that? 14 A. I told you that it had very, very limited 15 volatility. 16 Q. And how long would it take for a given amount of 17 TCDD to evaporate then in view of that? 18 A. I really have no idea how long it would take for it 19 to do that. It v/ould depend totally on the kind of 20 circumstances that it was in, whether it was in a closed 21 system or open system. 22 , Q. Well, the circumstances where it's in soil. 23 A. I really don't know how long it would take for a 24 given amount of TCDD to evaporate away. It wduld be very 13 1 slow If it were up on th surface and if it was possible 2 for it to do that without breaking down in the light. 3 Q. How slow would you say.it would be, sir? 4 A. ,1 really don't know. 5 Q. Your best judgments, Dr. Dost. 6 A. I have no way of making such a judgment. 7 Q. D o c t o r y o u 've given iis a judgment that it's not 8 going to harm anybody, you have said it's-- 9 'A. That1s right. 10 Q. You said it's not volatile, you said that it's 11 going to stay in the soil. Now, you've had to make some 12 assumptions as to how long it's going to disappear in the 13 air, and you've also told us that you have no idea what 14 happens to it when it's vapor form, whether it degrades or 15 what happens to it when it comes up to the surface and' comes 16 in the vapor form, you've testified that you have not the 17 least idea what happens to it, have you not, sir? 18 A. That1s right. t 19 Q. And, Doctor, it then becomes important, if you 20 don't know what happens to it after it comes up out of the 21 soil, it then becomes important to know how rapidly it 22 volatilizes and comes up from that soil if you're going to 23 make any kind of health assessment, isn't it, sir? 24 A. I don't believe that it comes up out of the soil. 114 1, Q. You don't believe that it comes out' of the soil? 2 A. I believe that it's degraded by light'before it 3 ever gets into the atmosphere. 4 Q. Doctorr then what you said on November 8th -- on 5 November 8th you didn't mean, sir? Sir? 6, A. Well, I'm not sure what you're referring to, Mr. 7 Carr. '- , 8 Q. You're not aware of the testimony that you gave 9 that when it's in gaseous form -- . 10 MR. HEINEMAN: Could we have a citation please. 11 MR. CARR: Yes, and I'll give to to you in a 12 moment. 13 Q. You're not aware of the testimony you gave that 14 when it's in gaseous- form, you don't know what happens to 15 it? 16 MR. HEINEMAN: Object to it, your Honor, unless I 17 can have a citation to what he's referring to. 18 MR. CARR: Page 86 and 87 of November 8th. 19 A. What I said was if it were to get in the 20 atmosphere-- 21 Q. Doctor, my question is are you aware of what you 22 testified in that respect? You told us, Dr. Dost,, that when 23 it's in a gaseous form, you don't know what happens to it. 24 That's what you told us, sir. i 115 I 1 A. That's right. ' 2 Q. And when it's coming up out of the ground, it's in 3 gaseous form, isn't it, sir? 4 A. It's'not just coming bubbling up out of the soil. 5 Q. `Excuse me,. Doctor, my question is when it comes up, 6 when it comes from the soil, it is in gaseous form, isn't it, 7 sir? 8 A. It doesn't leave the soil. 9 Q. It doesn't leave the soil? 10 A. Wo, sir 11 Q. Dr. Dost, when it's in the soil, it's in gaseous 12 form, isn't it, sir? 13 A. It's not as a free gas in the soil, no, sir. 14 Q. Doctor, then you -- you don't consider that it is a 15 free gas coming up, sir? 16 A. No, sir. 17 Q. What is a gas, Doctor? 18 A. A gas is a quantity of individual molecules of a 19 substance that are in the -- that are free in the atmosphere. 20 Q. And it rises, doesn't it, sir? 21 A. Not necessarily. 22 Q. .Well, you know from Dr. Shroy's work that it does 23 rise, don't you, sir? 24 A. Doctor Shroy showed that it -- 116 1 Q. Excuse me, could you answer that question, sir. 2 A. Which work are you referring to? 3 Q. All of his works, Doctor. 4 A. He showed that it very, very slowly migrates toward 5 the surface. 6 Q. My question is didn't Dr. Schroy show that it turns 7 into vapor, sir, and gaseous form and volatilises? Didn't 8 Mr. Shroy show that, sir? 9 A. He was describing a process within the soil. 10 Q. Would you answer that question as I gave -it to you, 11 Doctor. 12 A. Yes. 13 Q. Don't go down some other path. 14 A. No,.it's the same path. 15 Q. Did his work show that or not, sir? 16 A. He showed that TCDD has capability to volatilize. 17 Q. And in gaseous form, is it not, sir? 18 A. As it migrates among particles of.the soil, yes. 19 Q. And he showed that it rise's up in the soil column, 20 didn't he, sir? 21 A. Very, very slowly, yes. 22 Q., Doctor, could you answer my question, because I'm 23 not ready to get into the very, very slowly part? 24 A. All right, yes. 117 1 ' Q. And you agree that when it rises up, the -- there's 2 no way the sun can get to it if it's covered with ballast, 3 correct, sir? 4 A. Until it gets close to the top of soil, yes. 5 Q. Well, now, Doctor, if it's covered with ballast, 6 it's shaded, isn't it, sir? 7 A. While it is shaded, that's correct. 8 Q. If it's covered with ballast, it is shaded, isn't 9 it, sir? 10 A. Yes. 11 Q. And it's going to come up through that ballast, 12 isn't it, sir? 13 A. Wot very fast. 14 MR. CARR: Your Honor, would you direct the witness 15 to answer my question. 16 THE COURT: Gentlemen, could you approach the bench 17 please. 18 fAt this time a conference was had at the bench out 19 of the hearing of the jury.) 20 THE COURT: Your witness is not listening to him. If 21 he's pulling these stunts, I'm going to have a discussion in 22 chambers about contempt. He has not been answering 23 questions. He has been going on his own as far as answers. 24 He has been trying to interrogate the interrogator, which 118 i he's'not allowed to do, and I*m just not going to stand for 2 it. A number of witnesses did that, and I instituted these 3 rules and admonitions for a reason, and I'm not going to -- 4- I'm going to order him to answer the question, and I suggest 5 at the next break that you strongly admonish your witness or 6 he's going to have some problems. 1 (The following proceedings were had in open Court.) 8 4THE COURT: Dr. Dost, you have to respond to the 9 question that is asked of you and only to that question, no 10 other. Your last answer was not responsive to the question. 11 I'm ordering you to answer the question. 12 THE WITNESS: I'm sorry, sir. I'm perhaps trying 13 too hard. 14 THE COURT: Well, listen closely to the question and 15 just confine your answer to that question, no more, no less. 16 Now would you read question to him please, 17 (The Court Reporter read back the last question.) 18 ) A. No, sir, I'll have to answer that no. 19 Q. Doctor, do you recall your testimony on November 20 8th, 1985? I've asked you these questions beginning at Line 21 3. So the photo degradation effect of sunlight -- 22 E4R. HEINEMAN: I'm sorry, which page? 23 MR. CARR: Page 85, counsel. 24 Q. The photodegradation effect of sunlight would have 119 1 no role to play when TCDD is filled -- is spilled in the .2 railroad right-of-way, would it, sir? 3 Your answer was, not when it's buried, no. Then 4 this question: It would only have a role to play when the 5 ballast is removed, wouldn't it, sir?, Your answer was, I 6 would assume so. f 7 Then X said, when the TCDD. evaporates in the soil, it's evaporating in a place where, it is not hit by the 9 sunlight, isn't it, sir? Your answer was, yes. 10 Question:, If it is as volatile as Dr. Shroy 11 suggested? Answer: It would initially separate from the 12 soil under the gravel under the ballast. /' 13 Do you recall that being your answer, sir? 14 A. Yes. 15 Q. And eventually it's going to get out in the 16 atmosphere, isn't it, sir, in gaseous form? 17 A. Yes. 18 Q. Then, Doctor, that's how you testified at that i 19 time, eventually it's going to get out in the atmosphere, 20 right, sir? 21 A. Yes. 22 Q. And you also testified it would turn into gas at 23 that point at a place where it's shielded from sunlight, 24 didn't you, sir? 120 1 A. Yes. 2 Q. Now, Doctor, you at that time it1s in -- 3 ,MR. HEINEMAN: Objection, Your Honor. May counsel 4 approach.the bench. 5 1THE COURT:' Sure. 6 '(At this time a conference was had at the bench out 7 of the hearing of the jury.) . 8 MR. HEINEMAN: Mr. Carr is misrepresenting this 9 witness' testimony again. What the witness said was'it may. 10 MR. CARR: Yes. 11 MR. HEINEMAN: He just asked him, does it. He just 12 asked him didn't you testify it does, and he didn't read him 13 what the answer the man gave was. The man doesn't have the 14 transcript there in front of him. 15 MR. CARR: Does he have trouble remembering what he 16 testified? 17 MR. HEINEMAN: A month and a half ago, I think *1 18 maybe he might. My point. Your Honor, is in. both of those 19 questions the answer was it may, not that it does but if may. 20 I object to the question as misleading the witness with 21 respect to this prior testimony. He didn't agree to it. 22 MR. CARR: I think I read it exactly what he said, 23 Your Honor, and -- 24 MR. HEINEMAN: Did you use the term may? No, you 121 1- didn't use the term may, so you obviously -- 2 MR. CARR: He said it would initially separate soil 3 under the gravel and ballast only gas at that time, counsel. 4 MR.- HEIHEMAN: That part you read to him when you 5 got down here, and you skipped down to here, that!s the part 6 that'you didn't read to him. 7 MR. CARR: The conclusion is ^exactly the same. 8 1*11 read him exactly what he said. 9 THE COURT: Okay. Why don't you do that. 10 (The following-proceedings were had in open Court.) ir Q. Doctor from the -- you answered in response to 12 these questions as follows, did you not, sir? And when the 13 TCDD evaporates in the soil, it's evaporating in a place 14 where it is not hit by sunlight, isn't it, sir? And your 15 answer was, yes. Question: If it is volatile as Dr. Shroy 16 suggested'? Answer: It would initially separate from the 17 soil under the gravel under the ballast. 18 Question: And it would turn into gas at that point 19 at a place where it's shielded from sunlight, wouldn't it, 20 sir? Answer: Well, it would come in contact with other 21 particles, in all likelihood bind to them dust. Question: 22 Eventually it's going to get out into the atmosphere, isn't 23 it, sir? Answer: It may,' yes. Question: In a gaseous 24 form? Answer: It may, yes. 122 1 Didn't you answer that way at those times, Doctor? 2 A. Yes, sir. 3 Q. Doctor, when it's in gaseous form, when it's rising 4 up like a gas into the place where the sunlight could get to 5 it, it is -in gaseous form, isn't it, sir? 6 A. Yes, it's individual molecules, -yes. 7 Q. And, Doctor, you agree, do you not, that when it's 8 in that gaseous form, there's absolutely no work suggesting 9 any place that sunlight will degrade TCDD when it is in vapor 10 form, isn't that correct, sir? 11 A. Yes, that's correct. 12 Q. Doctor -- ? 13 MR. CARR: Could you give him Defendant's Exhibit 14 1148 to him. I'll just hand him an excerpt from ittthat the 15 jury has. 16 Q. Doctor, handing you just a part now of Defendant's 17 Exhibit -- let me give you the whole 1148, and I'll refer you 18 to parts .of it. Oh, you found it? Well, good, I'll take 19 mine back. Doctor, are you familiar with that work,? 20 A. Yes, I've looked through it. I'm not a physical 21 chemist, so -- but I am somewhat familiar with it. 22 Q. / Doctor, you've testified .to certain things relating 23 to physical chemistry, haven't you, sir? 24 A. _ Yes, sir. 123 i Q. Doctor, this talks about it being in a vapor phase 2 for transfer, doesn't it, sir? 3 1 A Yes* 4' Q. Doctor, Page 22, if you would turn to it. It says 5 TCDD volatile, doesn't it, sir? 6 A. Yes. 7 Q. , Very first point, number one? 8 A. Yes. 9 Q. Now, Doctor, over what period^ of time -- Doctor, 10 would you put that down for a moment so you could listen to 11 me. Over-what period of time is it your judgment that TCDD 12 will evaporate when it's in vapor form and disappear from the 13 soil such at Times Beach or -whatever? Doctor, you're not 14 reading that article again. I'd like for you to listen to me 15 and answer that question, your judgment independent of what 16 Mr. Shroy has said. 17 A. I would think it would be very slow. 18 Q. Yes* but what period of time, Doctor,,a .period of 19 years? 20 A. I would think so, yes. 2i Q. And you wouldn't expect it then the bulk of it to 22 volatilize and disappear in the first six months, would you, 23 sir? 24 ' A. No, sir. 124 1 Q. Doctor, then do you agree with Mr. Shroy, sir? 2 A. In what respect, sir? 3 Q. That it will volatilize 90 percent of it in the top 4 one centimeter will volatilize during the first summer. You ' 5 don't agree with that, do you, Doctor? 6 A. Well, my information is based on the Eglund work. 7 Q. Doctor, then you haven't read the Times Beach work, 8 have you, sir? Have you, sir? ,9 > A. Well, apparently not, if this relates to -- 1' 1 ' / 10 Q. Doctor, the Eglund Air Force Base dealt with sand, 11 it didn't deal- v;ith soil such as Times Beach. It dealt with ,Y 12 something that they buried in sand, and they measured the 13 movement. The article that you have in front of you deals 14 with Times Beach, material sprayed on top of the soil, on the 15 surface? 16 A. Yes. 17 Q. You see that, sir?' 18 A. Yes. 19 Q. You weren't familiar with that? 20 A. Well, I had-read it, but I had not assimilated the 21 details. 22 Q. Doctor, you see Mr. Shroy said that 90 percent of 23 the applied TCDD volatilized from the top one sonometer of 24 soil during the first summer. You see that, sir? 125 1' A. Yes, X see that. 2 Q.' Do you agree with that, Doctor, or do you have any i i 3 basis rto disagree? ,, 11 4' A. I don't have a basis for disagreeing with his .5' findings. 6 Q. Then you do accept it a true then, sir, that the 7 TCDD -in the top one sonometer would 'volatilize, 90 percent of 8 it would volatilize in the first summer? 9 A. Well, I have no basis for disagreeing with it, sir. 10 Q. Then I take it then you would agree with it? 11 A. I have no choice, I have to agree with it. 12 Q. Then your testimony earlier that it would not 13 volatilise rapidly would be erroneous, wouldn't it, sir? 14 Ai. On the basis of this finding perhaps so, yes. 15 Q. Not perhaps so. There is no question about it, Dr. 16 Dost. What you told us earlier about it not volatilizing 17 rapidly is erroneous,, isn't it, sir? 18 A. Well, if we depend on this statement, yes. 19 Q. Now, when you came here to testify about the 20 volatility and you told this jury that it wasn't volatile, 21 you didn't even worry about it in a vapor form, did Mr. 22 Heineman tell you or did Mr. Musgrave or any of the other 23 attorneys for Monsanto, did they tell you what their own 24 scientists found and said on the point at issue? 1 126 1 A. I was given this paper. 2 Q. Now, that isn't what I asked you. I asked you did 3 they tell you what their own scientists found and said on the 4 issue? 5 A. Well, I don't really remember, sir. They may very 6 well have. * 7 , Q. Doctor, if you had known it, you sure wouldn't be 8 taking a position today and now having to say that your 9 position was erroneous, would you1, sir? id A. Well, I 'was basing my -- my opinion on the behavior n of. the material in the Eglund study. 12 Q. Yes, but'that's just part of the picture, Dr. Dost, 13 isn't it, because Eglund Air Force Base was sand, wasn't it, 14 sir? 15 A. Yes. 16 Q. , Doctor, you certainly, wouldn't have given that 17 opinion that you gave us if you had had this study by 18 Monsanto, if you knew .what this study said, would you, sir? 19 A. I don't really know. I don't know how to explain 20 this. 21 Q. - It's easy to explain it, Dr. Dost. You weren't 22 given the information when you were called into this 23 courtroom to testify as an expert, the information that you 24 need to draw appropriate scientific conclusions. 127 1 A. I was given this paper. 2 Q. Well, Doctor, you said -- also you said that it's 3 never -- never been in the~air, didn't you, sir, never found 4 as a gas in the air? 5 A. That's correct. 6 Q. Doctor, this table -- would you turn to Page 32.' 7 This study shows you that they measured it in the air in an 8 area where it was non-shadedl in the sunshine, doesn't it, 9 sir? 10 A. Yes. 11 Q. You didn't have that information either, did you, 12 sir, when you said it's never been found in the air? Isn't 13 that correct, Dr. Dost? 14 A. Well, I was given the information. Apparently I 15 did not notice it./ 16 Q. Apparently you didn't. Nov/, Dr. Dost, you were 17 also -- Mr. Heineman this morning told you about Dr. Wilson's 18 testimony on the TCDD being in the fat tissue having a life 19 of three months to three years, something like that. Do you 20 recall that, sir? 21 A. Yes. 22 Q. He suggested to you that Dr. Wilson did not testify 23 that it had a life of three to five years. Do you recall 24 that, sir? , ' 123 1 A. Yes. 2 Q. Doctor, he didn't show you the testimony of Dr. 3 Wilson nor the exhibit that -- where Dr. Wilson calculated 4 the amount of TCDD in the fat tissue? 5 A. I have seen such an exhibit. 6 Q. Where it showed three to five years, sir? 7 A. I don't believe I've seen an exhibit that showed 8 three to five years. 9 Q. Well, if you had -- ? 10 MR. CARR: Would you pass Plantiff's Exhibit 1404 to 11 the witness please. Your Honor, I'm passing 1404 to the jury 12 again, and I know you wouldn't have yours available, so I'll 13 pass you this one. 14 THE COURT: Thank you. 15 MR. CARR: I have one for you, too, counsel, if 16 you'd like to use it rather than dig through yours. 17 Q. Dr. Dost, do you see the calculations of Dr. Wilson 18 there where he says this suggests-- at the bottom of the 19 page there -- this suggests half life for clearance is three 20 to five years? 21 A. Yes. 22 Q. And, Doctor, were you aware of that the question 23 that Mr. Heineman asked you or what he told you that Dr. 24 Wilson testified to indeed took place on May 16th, 1985, but 129 1 that on May 17th, 1985, just two and three pages after what 2 h e 'discussed with you this exhibit was discussed in detail by 3 Dr. Wilson in which he said that half life was three to five 4, years. Did Mr. Heineman tell you anything like that, Dr. 5 Dost? '6 MR. HEINEMAN: Page number, sir? 7 MR. CARR:; As I said, 'counsel, from Page 4 onward. 8 Page 2, 3, and 4, 5, Page 6, Page 7, Page 9. 9 Q. 'Dr. Dost, did'you hear my question, sir? Dr. Dost, 10 you want to come back to me here? 11 A. I'm with you. 12 Q. Did you hear my question? 13 A. You asked me whether I was aware of this \ 14 information. 15 Q. And. that Dr. Wilson had so testified. He didn't 16- tell you that, did he, sir? 17' A. I did not recall getting that information. 18 Q. Doctor,'since he didn't -- do you know any reason 19 why he wouldn't tell you that Dr. Wilson testified, why he 20 would suggest to you that I told you something that Dr. 21 Wilson didn't testify to in fact? 22 MR. HEINEMAN: Objection, Your Honor, may counsel 23 approach the bench. 24 THE COURT:* Yes, you may. 130 1 MR. HEINEMAN': You want to bring Page 4 with you, 2 Mr. Carr. i 3 (At this time a conference was had at the bench out - 4 of the hearing of the jury.) 5 , MR. HEINEMAN: Right here at the bottom. 6 THE COURT: On the bottom of -- 7 MR. HEINEMAN: The witness tells him -- 8 THE COURT:Wait a second. I'll read it. Okay, 9 I 've read it. 10 ,MR. HEINEMAN: Your Honor, Mr. Carr Is again 11 misleading,this witness. The testimony that he said, oh, 12 from two, Pages 2 to 9, here on Page 4 it says, the question 13 is, now the suggestion of the calculation there that a half 14 life is three to five years, again that is similar to what 15 you found yesterday in another exhibit that we discussed. I 16 don't have the number. j 17 i THE COURT: You don't have to read it in the record. 18 That's fine.' 19 MR. HEINEMAN: My objection, your Honor, is is the 20 witness came back and said in answer to that question, I 21 think 1 used the range of about three months to three years 22 in those other'calculations. Mr. Carr acknowledges that the 23 witness has used different ranges at other places. The 24 cross-examination or the redirect of this witness was 131 1 directed to the fact that when Hr. Carr examined him he told 2 you him that the Monsanto testimony V7as that the half life 3 was from three to five years. 4! MR. CARR: Yeah. 5 ,MR. HEINEMAN: And the redirect was directed to the 6 fact. It's-clearly not what the Monsanto testimony was, that 7 the testimony of this witness was that it's from three months 8 to three years, and he says it again right here in the very 9 place where he's representing to this witness that it didn't 10 occur. It's right here. 11 THE COURT: Mr. Carr. 12' MR. CARR: Your Honor, Mr. Heineman represented to 13 the witness that Monsanto's witness didn't testify that half 14 life in human tissue fat tissue was three to five years and 15 he found where the witness said in one calculation that it 16 was three months to three years. ; He didn't at.all tell the 17 witness that Dr. Wilson testified in a number of places that 18 the half life was three to five\ years nor that there was an 19 exhibit. That's what I'm bringing out at this point. 20 MR. HEINEMAN: Well, I object to this last question 21 of the witness as being misleading in that he is suggesting 22 to the witness that this testimony demonstrates that the 23 position is three to five years, and that's what the Wilson 24 testified to. 132 r i' 1 THE COURT: Objection is overruled. 2 Q. Dr. Dost, did you assume when you answered 3 questions for Mr. Heineman that Monsanto had 'not found in its 4 calculations that -- and in this Exhibit 1404 that the half 5 life in fat tissue was three to five years? 6 A. That's correct. 7 Q. What you thought Monsanto had calculated and the 8 only thing it had calculated was that the half life in fat 9 tissue was from three months to three years, isn't that 10 correct, sir? 11 A. Yes. 12 Q. Nov;, do you know any reason why Mr. Heineman would 13 not have given you Exhibit 1404 or v/hy he wouldn't tell you 14 that Monsanto had calculated the half life in fat to be three 15 to five years? 16 A. 'I do not know. 17 Q. Is it possible that he wanted to get certain 18 answers from you, sir, and that' if you knew the full 19 testimony of evidence that Monsanto has put in here, that 20 your answer might be somewhat different than what you have 21 given here today? 22 A. No, sir, I don't think so. 23 Q. All right. Doctor, with regard to the half life of 24 three to five years that Monsanto has calculated in this 133 1 particular exhibit, that happens to be very close to the same 2, half life that Poiger and Schlatter related in Monsanto -- in 3 Plantiff's Exhibit 1646, isn*t that correct, sir? 4 A. Yes. 5 Q. Matter of fact, Poiger and Schlatter estimated a 6 half life of 4.95 years, didn't they, sir? 7 A. Yes. 8 Q. Now, does -- do you think that the Monsanto -- you 9 stated that you believe Poiger's calculations are in error. 10 Do you believe that Dr. Wilson's calculations are in error? 11 A. Yes, I do. 12 Q. Well now, Dr. Dost,1Dr. Wilson used, or calculated 13 this based upon the fact that there were five to 30 parts per 14 trillion of .TCDD found in range cattle, didn't he, sir? 15 A. That's correct. 16 Q. And Dr. Poiger's calculation was actually based 17 upon a measured calculation, a measured finding of 18 radioactive TCDD, 2,3,7,8-TCDD, did he not, sir? 19 A. Yes. 20 Q. And according to Exhibit 1646 -- do you have 1646 21 in front of you? * 22 A. Yes, I have. 23 Q. 1646, sir, shows that in a -- that the radioactive 24 material was ingested by a male volunteer, doesn't it, sir? 134 1 ,A . Yes 1 2 Q. And, Doctor, the article also tells you -- you took 3 some criticism of this study; do you recall that, sir? 4 A. Yes. 5 Q. You think itfs not valid, and you think Dr. 6 Wilson's calculation is not valid, correct, sir? 7 A... That1s correct. 8 Q. All right. And, Doctor, this particular Plantiffs' 9 Exhibit 1646 they took biopsies of fat tissue prior to 10 dosage, did they not, sir? 11 A. * Yes. 12 Q. And you criticized earlier in direct examination, 13 redirect examination by Mr. Heineman that you didn't know or 14 they didn't know what TCDD was in the fat before the 15 ingestion of the sample? do you recall that, sir? 16 A. That1s right. 17 ' Q. But in point of -fact they tell you that they do 18 know, don't they, sir, they measured it? 19 A. I don't see any place where they measured the 20 baseline TCDD level in the fat. 21 Q. Doctor, don't you see that sentence, biopsies of 22 subcutaneous adipose tissue were taken prior to dosage? 23 A. That1s correct. 24 Q. As well as ten and 69 days after dosage? 135 1 tA. That's right, but they haven't -- 2 Q. Doesn't that mean to you, Doctor, that they knew 3 what was in the fat tissue before he swallowed, before this 4 male volunteer swallowed the radioactive TCDD? 5` A. There is no evidence that they measured the TCDD 6 activity in that sample. 7 Q. Excuse me, Doctor, .could you answer my question 8 please,, sir? 9 A. You're asking me If .they measured the TCDD level in 10 the fat prior to the -- 11 Q. What I'm asking you, sir, doesn't it indicate, this 12 document indicate that they biopsied the fat tissue before 13 they ever administered the radioactive TCDD? 14 A. They certainly did. 15 Q. What would be the reason they took a biopsy before 16 they gave them the radioactive stuff? 17 A. They would do that for two purposes. One would be 18 to determine the total amount of TCDD in the tissues. The 19 other would be to determine the amount of radioactivity 20 background that might be in that sample. 21 Q. Doctors Poiger and Schlatter are competent 22 scientists, aren',t they, sir? 23 A. Yes. \ 24 Q. They been head of the institute, working with the 136 i Institute of Toxicology in Switzerland there for 'many, many 2 years, haven't they,' sir? 3 A. Yes. 4 Q. They had been working with TCDD-- well, you never 5, worked with TCDD, have you, sir? 6 A. No. . 7 Q. But they have worked- with it for many, many years, 8 haven't they? L 9 A. Yes. ' " 10 Q. - Do you reckon that'they would know how to measure 11 or the significance of measuring TCDD in fat .tissue before 12 the tests were undertaken? 13, A. I'm sure they do. They did not report it here. 14 Q. Doctor, this is a abstract. We don't have their 15 full study, do we, sir? 16 A. But that's an absolutely critical finding. 17 Q. Doctor, there's no question about that. It doesn't 18 say they didn't do it, does it, sir? 19 A. They have to have that information to make the 20 calculation. ki 21 Q. Excuse me, Doctor, it doesn't say they didn't do 22 it, does it, sir? 23 A. No, it does not say they'didn't do it. 24 Q. And you know these men to be competent scientists, 137 .1 don't you, sir? 2 A- Yes. 3 Q. And a competent scientist would do that, wouldn't 4 they, sir? * 5. A. . .Yes. 6 Q. So can't you assume that these competent scientists 7 did that which you said competent scientists would do? 8 There's no mention in the abstract -- it's a very short 'n. 9 abstract, there's no mention in the abstract that they did 10 anything to the contrary, isn't that correct, sir? 11 A. That's correct. 12 Q. Then won't you assume that these gentlemen did 13 which competent scientists should do? 14 A. No, sir, I cannot assume that. 15 Q. Doctor, if you know they're competent scientists, 16 why can't you assume,that they would do what competent 17 scientists would do under such circumstances when you have 18 nothing in this document to the contrary? J 19 A. It would take about five words to provide that i 20 answer,, and I'm sure they would have provided it. 21 Q. " Doctor, this.is anabstract. 22 A. Anabstract even so, sir, would provide that' 23 information. 1J 24 Q. Doctor, an abstract is not supposed to give all of 138 1 the supporting data all, of the supporting work, the methods 2 and methodology and all that to support a conclusion, is it, 3 sir? If they did, it would soon not be an abstract, would 4 it, sir? 5 A. That's critical data, and I would assume-- 6 Q. No question about it, Doctor, it is critical data, 1 but that's not what I'm asking you. If they put all the data 8 in the abstract, it would soon not be an abstract, would it, 9 sir? 10 A. That's correct. 11 Q. Now, in an abstract don't -- wouldn't you give 12 these competent scientists the benefit of the doubt and 13 assume that they did which you said every competent scientist 14 would do? 15 A. No, sir. 16 Q. Doctor, then you're saying that these men are not 17 competent scientists? 18 A. No, sir, I'm not. 19 Q. You have no data in this abstract to the contrary, 20 isn't that right? 21 A. No, sir. 22 Q. Doctor, if they are competent scientists, they 23 would do that, wouldn't they, sir? 24 A. If they had done it, they would report it. 139 1 Q. Doctor, that's not what I asked you. They did -- 2 we'don't know whether they reported it, because we don't have 3 the study. You haven't seen the original document, have you, 4 sir? ,5 .A. No, sir . 6 Q. Then you don't know whether they reported it or not 7 in that original document, do you, sir? 8' A. I've asked people who heard the paper*. 9 Q. Doctor, my question is you don't know whether they 10 reported it or not, do you, sir? 11 A. I do not know directly. 12 Q. ,Doctor, there would be -- i would they -- you 13 contemplate they would take a biopsy before they did the 14 study just because they want to inflict pain on the.person \ 15 that's having the fat taken from his body? 16 A. No, sir. 1 17 Q. Or wanted to give him 'an extra scar? 18 A. No, sir. 19 Q. They would take that fat tissue for a scientific 20 purpose, wouldn't they, sir? 21 A. Yes. 22 Q. The only scientific purpose they would take that 23 fat tissue for is to see how much TCDD is in it, isn't that 24 correct, sir? 140 1 A. Yes. 2 Qi No other reason to take it, right, sir? 3 A. That*s correct. T 4 Q. ' So the only reason to ^take it is to see what TCDD 5 is in it, they took it, you know they're competent scientists 6 and yet you're still not willing to say that they did a 7 competent job in testing the -- in making their full report 8 or in their scientific study, is that right, sir? 9, A. That is correct, and I'll explain if you wish. 10 Q. No, Doctor, I don't want an explanation, Doctor, 11 because I want it to rest right there, sir. What you're 12 saying is that they did this in an incompetent manner for no 13 particular purpose, they would not.do that which competent 14 scientists wouldrdo, is what, you're saying, sir, that's the 15 only conclusion that can be reached from that, Doctor. 16 A. ,No, sir, that's not the only conclusion, sir. 17 Q. Do you reckon they didn't do anything with that 18 adipose tissue that they took prior to dosage? 19 A. -They undoubtedly sent it for analysis. This is an 20 experiment in progress. This is an experiment' in progress, 21 it has hot run long enough, as I explained earlier to get -- 22 Q. . Doctor, they sent it for analysis, right, sir? 23 A. I'm sure they did.. 24 Q. Okay. And then later on they took more samples, 141 .1 didn't they, sir? 2 A. Yes. 3. Q. Ten days later they took some? 4- A. Yes. 5' Q. *And 69 days later they took -- 6 A. That's correct. 7 Q. They report the ten'day adipose tissue level, don't 8 they, sir? 9 A. They report the radio isotope concentration in the 10' fat. That has nothing to do with the TCDD content of the 11 fat. 12 Q. Doctor, all they want to do is report the half life 11 of the TCDD in the fat, isn't that right, sir? 14 A. Yes. 15 Q. The significant part of this study is the half 16 life, right, sir? 17 A. Yes. 18 ^ Q. And since you don't know how long the TCDD is in 19 the fat tissue to start with, you can't give a half life of 20 that, can you, sir? 21 A. No. 22 Q. The only way you can give a half life is to put a 23 known quantity in there at a specified period of time and 24 measure what happens to that known quantity, isn't that 142 1 correct, sir? 2 A. You must do it in a satisfactory time base. 3 Q. Could you answer my question, sir? 4 A. That's correct. 5, Q. And what they did here was put a known quantity'of 6 radioactive TCDD in this volunteer's body, correct, sir? 7 A. Yes. 8 Q. And they measured that, didn't they, sir? 9 A, Yes. 10 Q. And they also measured the feces, didn't they, sir? 11 A. To determine,how much was absorbed, yes. 12 Q. And doing those things, measuring the elimination 13 of the radioactivity on the feces, measuring in the urine and 14 in the adipose tissue, they concluded that there was a half 15 life of elimination of 4.95 years, didn't they, sir? 16 A. That was, their conclusion. 17 Q. Yes. 18 THE COURT: Gentlemen, could you approach the bench 19 for a minute please. 20 (At this time a conference was had at the bench out 21 of the hearing of the jury.)' 22 THE COURT: I'm going to take a ten minute break 23 now. I want you to admonish this witness again. As I told 24 you before, I'm advising you this would -- 143 1 MR. CARR: I'm done .with that particular part of it, 2 but not with the document. 3 THE COURT: With that particular page? We'll take a 4 ten minute break at this time. 5 (The following proceedings were had in open Court.) 6 THE COURT: Okay. Ladies and gentlemen, we're going 7 to take a ten minute recess at this time. The admonishments 8 that I have given you earlier will apply during this break 9 also. Court's in a short recess. 10 (The following proceedings were had in open Court.) 11 MR. CARR: Could I have a Plaintiffs' Exhibit. 12 (Plaintiffs' Exhibit 1646A was marked for 13 identification.) 14 Q. Doctor, I have labeledLa piece of paper here 1646A 15 and put at the top of it Poiger and Schlatter, that's the 16 authors of the article that w e 'retdiscussing, right, sir? 17 A. Yes. 18 Q. The second line is 3H TCDD equals 105 nanograms. 19 That1s the -- 20 A. Nanograms, that's a tenth of a microgram, a little 21 over a tenth of a*microgram. 22 Q. Yes, and that's the dose described by Dr. Poiger? 23 , A. The total dose yes-. 24 Q. By the male volunteer. Doctor, then I -- isn't 144 1 that correct, sir? t 2 A, Yes. 3 Q. And I put underneath that the words elimination 4 feces first three days, feces thereafter, urine, half life of 5 TCDD. I didn't spell elimination very good, did I? And 6 elimination from the body, correct, sir? 7 A. Yes. 8 Q. Now, Doctor, in the -- what -- the way they 9 determined the half life of 4.95 years was not by measuring 10 the TCDD in the body fat, was it, sir? 11 A. Based on a fecal excretion data. 12 Q. Did you understand my question, Dr. Dost? 13 A. Yes. 14 Q. It was not based on measurement of the body fat, 15 was it, sir? 16 A. `.No, that's correct'. 17 Q. It was based upon -- and by the way, you criticized IS the McNulty study because they didn't make their decision 19 based upon feces elimination, correct, sir, do you recall 20 that? 21 A. Yes, they didn't correct the initial dose on the 22 basis of that. 23 Q. But here Poiger and Schlatter, they're measuring, 24 they're determining how much TCDD is leaving, what its half 145 1' life is by actually measuring the radioactive TCDD that's 2 eliminated from body -- in the body, doesn't it, sir? 3 A- Yes. 4 Q. Now, and in the first three days they measured Uow 5 much was excreted in the feces during the first three days of 6 their radioactive TCDD? 7 A. Yes. . 8, Q. How much was that sir? 9 A. 11 and a half percent. 10 Q. And thereafter the fecal elimination radioactivity 11 decreased to an average of .031 percent per day of the body, 12 burden, correct, sir? 13 A. Yes. 14 Q. And they also -- now that average would be over 15 what period of time, Dr. Dost? It tells you in th first 16 paragraph. 17 A. They followed ,for 125 days in the feces and 35 days 18 in urine. 19 Q. So what they did for 125 days, a little better than 20 a third of a year, they actually measured the radioactivity 21 of the TCDD that was being eliminated in the feces, did they 22 not, sir? 23 A. Yes. 24 Q. And then they also for 35 days they measured in the 146 1 same way the TCDD being eliminated in the urine, correct, 2 sir? 3 A. Yes. 4 Q. Now, is there any -- what they found that after the 5 first with the exception of initial samples containing low 6 amounts, no TCDD activity, no radioactivity could be measured i 7 at a detection limit of .01 percent of the dose per day, 8 correct, sir? 9 , A. That's correct. 10 Q. But they nevertheless made an assumption .that there 11 was TCDD being eliminated at the limit of detection, didn't 12 they, sir? 13 A. Yes. 14 Q. ,,That's erring on the, safe side, correct, sir?1 * 15 A. That's correct. 16 Q. , So actually they assumed, while they didn't find 17 it, they assumed that .01 percent was being eliminated daily, 18 did they not, sir? 19 A. Yes. 20 Q. For the period of time in question? 21 A.' Yes. 22 Q. 'So now -- and they concluded based upon these 23 measurements, did they not, sir, that the -- based on the 24 actual data from the fecal elimination and the urine being 147 1 eliminated at the level of detection, they concluded that it 2 has a half life of elimination of 4.95 years, didn't they, 3 sir? 4 A. That was -- yes. 5 Q. So they did their calculations of a half life in 6 the body based upon actual measurements of the -- of those -- 7 of that TCDD that was being eliminated from the body, didn't 8 they, sir? 9 A. Yes. 10 Q. Doctor is that a valid scientific method of doing 11 it? 12 A. It is in part. 13 Q. Doctor, you can either measure what's left in the 14 body measuring the fat tissue or you can measure what you 15 know is being eliminated from the body to arrive at a 16 conclusion of half life, isn't that correct, sir? 17 A. Yes. 18 Q. There is no other way,of doing it. it has to be 19 one of those two measurements bases, correct, sir? 20 A. rThere is one other thing that's necessary. 21 Q.* That is what, sir? 22 A. I would want to' know the specific activity of the 23 TCDD that is in the fat. In other words, we have to know 24 that the fat, that the TCDD that was administered has 148 i 1 distributed adequately throughout the body, and X presume 2 that they will determine that as their experiment goes on;. 3 Q. Yes, that's'what competent scientists would do, 4 would they not, sir? '5 A. Yes. 6 Q. And these are competent scientists, aren't they, 7 sir? 8 A. Yes, sir. 9 Q. And, Doctor, what they have done here is actually 10 given a half.life of elimination.that is the earliest half 11 life that they could determine. If in fact their calculation 12 as to the urine, if their assumption as to the elimination 13 through the urine is wrong, that is, at detection level, then 14 the half life could be considerably higher than 4.95 years 15 couldn't it, sir? 16 A. : It could. 17 Q. So what they did if in fact instead of the urine 18 being eliminated at the level of .01 percent per day, because 19 the only standard they used was their detection limit, if in 20 fact they had more sophisticated or if it was possible, if 21 there was a better method of detection, and they found out 22 that instead of being .01 percent, it was .001 percent, or 23 .005 percent, the rate,1the half life of TCDD in the body 24 would.be substantially greater than five years, wouldn't it, 149 1 sir? 2 A. 'That would increase the period, yes. 3 Q- Is the answer to my' question y e s -- 4 A. Yes. 5 Q. It would be substantially increased,? So what 6 they've given us then, sir, is the conservative scientific 7 opinion as,to the half life in human beings, haven't they, 8 sir? 9 A. Yes based on the -- yes. 10 Q. They've done it based upon actual measurement of 11 the TCDD that they put in, the radioactive TCDD that's put 12 in, and the actual measurement of the radioactive TCDD coming 13 out, did they not, sir? 14 A. , Y e s . 15 Q- All right. And, Doctor, if what you've said is 16 correct1, if there was radioactive TCDD in the body to start 17 with -- 18 .A. Excuse me, sir, I didn't say radioactive TCDD. A 19 background of TCDD^ 20 Q. If there was background of TCDD in there to start 21 with, sir', all they're measuring is the radioactive TCDD 22 that's coming out, aren't they, sir? 23 A. Yes. 24 Qi They're not measuring this background TCDD coming z' 150 1 out, are they, sir? 2 A. They hope they are, that1s their intention. 3 Q. No, they hope to measure that which they put in, i 4 Dr. Dost. They're not trying to measure something other than 5 what put in, are they, sir? 6 A. Yes, sir, they are. 7' Q. Well, Doctor, if they measured -- if these are 8 their measurements then, actually then the half life -- if 9 they're measuring more than what they put in, if they' erred 10 that way then in fact this half life could be as much as 11 double, couldn't it, sir? 12 A . Mo, sir. 13 Q. Doctor, they measured actually what's coming out, 14 didn't they, sir? 15 A. Yes. 16 Q. And only that v/hich is coming out. They can not 17 measure more than coming out, can they, sir? 18 A. I don't understand you, sir. 19 Q. They can only measure the amount coming out, can't 20 they, sir? 21 A. That's correct. 22 Q. And what they have measured coming out, whatever 23 the source may be, if half of that which is coming out is 24 TCDD that they did not put in there, then the half life of 151 1 the TCDD that they put in there would be double 4.95 years, 2 wouldn't it, sir? 3 A. ' No, sir. 4 Q. Doctor, you know that -- well, what would it be if 5 it wouldn't be double? 6 A. The idea of the experiment is to introduce labeled 7 TCDD, have that labeled TCDD distribute with the TCDD that is 8 already in the body if it is there, it may or may not be. 9 Presumably the labeled TCDD labels the total body pool of 10 TCDD, and that pool is then represented by the label, and 11 that's the reason why I'm concerned that we do' not know the 12 concentration of label that is actually in the TCDD of the 13 fat. 14 Q. Well, Doctor, all that would do would be to make 15 the half life longer. They're measuring -- if part of this 16 TCDD that was eliminated here was TCDD that they did not put 17 in, sir, that if it's mixed and taking some other TCDD out, 18 then they haven't measured just the TCDD, they've measured 19 more than the TCDD they put in, have they not, sir? 20 A. . Not necessarily, sir. 21 Q. Doctor, is there any other explanation for it? Is 22 there, sir? 23 A. Yes.' `24 Q. What is the other explanation, Doctor? 152 1 A. If the TCDD has not mixed with* the TCDD -- if the 2 labeled TCDD-- 3 Q. Let's stop on that for a moment. If it has not 4 mixed, then what they're measuring is the radioactive TCDD 5 put in, correct, sir, because they're measuring the 6 radioactivity, sir, are they not? 7 A. They're measuring the radioactivity. 8 Q. So if it did not mix, then the half life of the 9 TCDD, the radioactive TCDD that they put is 4.95 years if it 10 did not mix-, correct, sir? 11 A. Not necessarily. 12 Q. Tell me why not, sir. I thought that's what you 13 just got through saying. 14 A. I did. 15 Q. Well then, Doctor, if that's what you just got 16 through saying, then let's pass to the next point, because I 17 don't want to go down another trail? 18 A. I'm sorry, sir. 19 Q. Once you tell me something is so, Dr. Dost, I have 20 got to act upon that. 21 A. All right, excuse me. I thought that what I had 22 told you was that depending on the way the labeled TCDD that 23 was introduced, the way it distributed in the body would have 24 an influence on the rate at which it comes out. If it were 103 1 to go to a site where removal is slow, and if it doesn't mix, 2 we would get a change in one direction. If on the other hand, 3 it we re as you are suggesting, separating, remaining separate 4 and coming out by itself, without respect to the TCDD that 5' was already in the animal, then that might imply a longer 6 half time. 7 Q. < Doctor t that *.s not what I suggested to'you at all. 8 What I asked you, sir, if it did not mix with the other TCDD 9 in the body as you've suggested what they wanted to do was to 10 get It mixed with the other TCDD, if that didn't occur, then 11 what they have measured here is just the radioactive TCDD 12 coming out, correct, sir? i, 13 A. .That is correct. 14 Q. And the radioactivity of that TCDD they put' in is IS -- has a half life of 4.95 years under that assumption, isn't 16 that correct, sir? 17 A. Yes. 18 Q. And so at-'the.very minimum the TCDD that they put 19 in has a half life of 4.95 years, correct, sir? 20 A. Again it depends on the mixing, but for the actual 21 amount, for the actual amount of radioactivity that they put 22 into the body,.yes, that's correct. 23 Q. Yes, it Is correct. And, Doctor, if it mixed with 24 the-other TCDD, and what they're measuring here and adding up 154 1 is the other TCDD as well/ then the half life of TCDD in the 2 body is more than 4.95 years, isn't it, sir? 3 A. I don't know, sir, it depends entirely on how it is 4 mixed. 5 Q. Doctor, on the assumption that I gave you, if it's 6 mixed in any extent, if what they're measuring is something 7 in addition to what they put in, then the half life of TCDD 8 in the body is more than 4.95 years, isn't it, sir? 9 A. No, sir. 10 Q. Doctor, they can only measure the radioactivity -- 11 the radioactivity that they're measuring here is what they 12 put in, right, sir? 13 A. That's correct. 14 Q. It has a minimum life of 4.95 years, doesn't it, 15 sir? 16 A. According to their calculation, correct. 17 Q. And any other TCDD more than that that's coming out 18 takes away from the radioactive TCDD coming out and supplants 19 it v/ith some other TCDD, doesn't it, sir; therefore, there is 20 more radioactive TCDD in the body not being eliminated than 21 this chart would show, isn't that correct? 22 A. No, sir, if it's diluting, you're bringing out more 23 TCDD, other TCDD along with it. 24 Q. At the very minimum, Doctor, the half life is 4.95 155 1 years, and if it's diluting it, could be more than 4.95 2 years, .isn't that correct, sir? 3 A. If it's diluting, that's possible, but it could be 4 either v/ay. 5 Q. Doctor, there is no way that the half .life could be 6 less than 4.95 , years, because they are actually measuring th/e 7 radioactive material that they put in. 8 A. They're measuring the radioactive material that 9: they put in. 10 Q. Isn't the answer to my question, yes, that's 11 correct,4Mr. Carr? * 12 A. For the labeled, yes. ' 13 Q. And the half life of the labeled TCDD could be more 14 than 4.95 years, couldn't it, sir? 15 A. It could be. 16 Q. So would it be fair to put at least 4.95 years 17 here, sir? 18 A. I believe that I described ways in v/hich it could 19 be less. 20 Q. Well, I don't believe you have, Dr. Dost. I 21 misunderstood something. This. isimeasuring only that v/hich 22 was put in as far as radioactivity is concerned, isn't it, 23 sir? 24 A. .Speaking about the radioactivity, per se, that's 156 1 correct. 2, Q. So it's at least 4.95 years, correct, sir? 3 A. . For the radioactivity, yes. 4 MR. CARR: Now I'll offer Plantiffs' Exhibit 1646A j 5 into evidence. 6 THE COURT: Any objections? 7 MR. HEIiJEMAN: Well, sure. May we approach the 8 bench? . 9 (At. this time a conference was had at the bench out 10 of the hearing of the jury.) 11 MR. CARR: The court probably needs to see it. 12 THE COURT: Wait1a minute until he gets up here. 13 MR. HEINEMAN: The witness is really carefully 14 restricting the basis upon which he agrees with that chart, 15 and the basis upon which he agrees with that chart is not on 16 the chart, and the>4.95 applies only to the radio labeled 17 part that we put in. 'That's what the witness agrees to. 18 THE COURT: That's all that's on the chart. 19 Objection is overruled. 20 MR. HEINEMAN: May I speak further on the point? 21 THE COURT: Oh, sure, I didn't know you had anything 22 further to say. 23 MR. HEINEMAN: The witness has talked about the fact i 24 that TCDD may come out, which may itself be radio labeled, 157 1 because it has gone into a pool and the ,radio labeled has 2 itself labeled other TCDD. 3 MR. CARR: That's right. 4 MR. HEINEMAN: He's also said that there may be 5 TCDD that comes out. 6 MR. CARR: That1s right. V 7 MR. HEINEMAN: ' That is not radio labeled. '. 8 MR. HEINEMAN: What he's saying is the 4.95 years 9 is at least the half life only in the TCDD, the radio labeled 10 that was put in and brought back out, that's what the witness 11 said. That's not on the chart. 12, MR. CARR: That's what it is on the chart. 13 MR.' HEINEMAN: That's not what's on the chart, and 14 the jury six months from now or whenever it is when this 15 thing is argued to them is not going to have that information 16 on the chart, and I object to it. 17 THE COURT: I think it accurately reflects what he 18 testified to. Objection is overruled. It's admitted over 19 objection,. 20 (The following proceedings were had In open Court.) 21 Q. Now, Doctor, in the McNulty, the monkey study that 22 v/as referred to, do you have Plantiffs* Exhibit' 1647 in front 23 of you, sir? ' - 24 A. Yes. >158 1 Q. And, Doctor, you also criticized this report, did 2 you not, sir? 3 ' A . I disagreed with the finding. 4 Q. Well, Doctor, McNulty again is a competent 5 scientist, and he's one of these scientists that's known 6 world wide, isn't he, sir? 7 A. Yes, he's a good scientist. 8 Q. And he knows how to test for adipose tissue for / '9 TCDD contaminant? 10 A. Yes. 11 Q. And he has reported here that his half life, 12 apparent half life in fat for the animal is about a year, 13 correct, ,sir? 14 A. Yes. 15 Q. Now, Doctor, I think you criticized this study 16 because he didn't give the weight of the animal, didn't you, 17 sir? 18 A. That's a minor matter. That has nothing to do with 19 the calculation. 20 Q. Doctor, it may-- It indeed is a minor matter, but 21 that was one of the reasons you criticized it, wasn't it, 22 sir? 23 A. I just mentioned that I haven't seen -- 24 Q. Doctor, can you answer my question. You said in 159 1 several places, you discussed and criticized the fact that he 2 didn't give the weight of the1 animal, didn't you, sir? 3 A. Yes. 4 Q. Now, after making that statement did you re-r,ead 5 the article and find out that he told you that the -- after 6 two years the weight of the monkey was about the same as it 7 had been four days after the dose? 8 A. Yes. 9 Q. You did then learn that, didn't you, sir? So in 10 point of fact, sir, he has given you the relevant weight of 11 the monkey, hasn't he, sir? 12 A.. As a matter of fiact, sir, he listed the weights in a 3 this table. I didn't see them. 14 Q. But more than that he gave you the relevant weight 15 of the monkey, didn't he, sir, it was same before and the 16 same two years later, right? 17 A. Yes, I believe I commented on that in my testimony. 18 Q. And, Doctor, he also said that the concentration-of 19 the fat in that animal two years later was roughly 25 percent 20 of the TCDD content of the fat of that animal at the day four 21 level, didn't he, sir?22 A. . Yes. 23 Q. Doctor, that is about as precise as you can get in 24 a statement that -- where he's describing half life, isn't 160 1 that right, sir? You can't get more precise than that, can 2 you, sir? 3 A. Yes, sir, you can. 4 Q. Doctor, he measured the concentration of the fat of 5 the TCDD in the fat, didn't he, sir? 6 A. Yes. 7 Q. And he measured it, he said it's 25 percent of what 8 it was after four days, right, sir? 9 A. Yes. 10 Q. Doctor, doesn't that tell you, sir, then that the 11 half life of TCDD in fat in this animal was about a year? 12 A. No, sir, it does not. 13 Q. Well, is 25 percent of the TCDD- still there, sir, 14 two years later? I'm sorry, yeah, two years after the TCDD 15 was given to theanimal, wasn't 25 percent of it still therd? 16 A. 25 percent of the original concentration, yes. 17 Q. And that would suggest, does it not, sir that the 18 half life of oneyear if a fourth of it is still there two 19 years later, thehalf life would be what, Doctor? 20 A. I have no idea what the half life really is in fat 21 in this animal on the basis of the data that's here. 22 Q. Doctor, you have added something. I asked you did 23 he not make a statement that the half life, that he measured 24 the concentration of TCDD in the fat as 25 percent of the day 161 1 four level? . 2 " A. . That's correct. 3 Q. Doctor, that means that he actually measured it and i 4: found 25 percent of it still there two years later, correct, 5 sir? .6 - A. That's correct. 7 Q. And that that 25 percent, the other 75 percent 8 disappeared in that preceding two years, didn't it, sir?: 9 A. I don't believe that this data tells us that. 10 Q. Doctor, now you're saying again that you don't 11 believe the data tells you that. Doctor, this is a letter to 12 the editor, it's a page and a quarter long, isn't it, sir? 13 A. Yes. 14 Q. It doesn't attempt to give you all 'the data that a l 15 long article would give you, does it, sir? 16 A. I believe it's given us all of the data that he . 17 took. . 18 Q., Doctor, how can you possibly know that? 19 A. I don't -- ." 20 Q. .The man took levels over a period of two years,and 21" you have one short measurement there after 215 days. He 22 doesn't,give you the measurement after the two years at all. , 23 He tells you what lie'found. 'There is no information there as 24 to the amount of TCDD in the fat two years later, is it, sir? 10Z 1 A. The time period here is two years later, 715 days, 2 and then there are a number of-- 3 Q. I thought that was a two? 4 A. There are a number of measurements in between-- 5 Q. Excuse me, Doctor, let me get that point straight. 6 Is that -- you read that as a 7? 7 A. That is 715. 8 Q. 715? 9 A. Yes, sir. 10 Q. Well, then he gives you the parts per trillion in 11 the fat tissue then 715 days later, doesn't he, sir? 12 A. Yes. 13 Q. That's a hundred parts per trillion, correct, sir? 14 A. Yes. 15 Q. Doctor, what more data could he possibly give you, 16 sir? 17 A. He has given us a great deal of data here. 18 Q. Indeed he has. My question is, sir, what more data 19 could he give you to support his statement that the half life 20 in this monkey was a year, because he found 25 percent of the 21 TCDD still there 715 days later? 22 A. Well, sir, he found at 64 days 2,000 parts per 23 trillion, and this is an animal that had lost most of its 24 fat. It concentrated it. I have no idea what was going on in  163 1 the whole animal during that period, and if we look at the 2 fat concentration, yes, in fact there is a difference, there 3 is only about a quarter of the amount at 715 days that there , 4 was at .four or eight days. ' 5 Q. Doctor, doesn11*that tell you-that in this animal .6 the half life of TCDD in fat,is about.a year? 7 A. . If we ignore'all the intervening information, I.* 7 8 suppose we could draw that conclusion. 9 Q. l The intervening information does not take away from 10 that conclusion, does it, Dr. Dost? All it tells you there 11 are other things going on in this animal, this animal got 12 real bad sick,'lost'a lot of weight -- j 13 A. , Yes. , r ` , i1 * ' 14 Q. Made a comeback. Those things are being fold to. 15 you, but it doesn't take away from the fact that somehow or 16 other 25 percent, with all these things going on in this 17 animal-, 25 percent of the TCDi D it started out with is still it 18 there in the fat, isn't that right, sir? 19 A. Yes. -' 20 0. And, Doctor, insofar as the diatomaceous earth used 21 at Sturgeon, do you recall your testimony as to that? 22 A. Yes. ' 23 Q. This bentonite in point of fact is a very permeable 24 substance, isn't it, sir? ' 164 1' A. It has a very, very high surface area. I don't 2 knov/-- v?hat do you mean by permeable? 3 Q. Water will flow right through it. 4 A. Yes, it serves as a filter. 5 Q. And it won't'stop water at all, will it, sir? 6 A. No. 7 Q.1 It's a filter for particles, isn't it, sir? 8 A. It's a filter for'molecules. 9 Q. Well, molecules or particles, it doesn't filter, it 10 doesn't stop the water molecules from going through, does it, 11 sir? 12 A . No, sir. 13 Q. Matter of fact, diatomaceous earth, that which they 14 put on this railroad.track is used, is commonly used in 15 swimming pool filters, isn't it, sir? 16 A. Yes. 17 Q. And it would not prevent water from getting in.to 18 the track in getting into the passing track, would it, sir? 19 A. I don't think it would, no. 20 Q. It wouldn't stop them one moment, would it, sir? 21 A. I have no idea. I don't think it would impede the 22 water. 23 Q. If they told us that the purpose of putting this^ 24 sealer on was to prevent the water from getting under the 165 1 passing track and causing the material under the passing 2 track to spread out with the water, they would have been 3 mistaken in telling us that,1woul'dn11 they, sir? 4 A. I don't know how compact it was. 5 Q. Would you answer my question, Doctor? 6 A. Well, I would assume that water would'go through 7 it. I don't know everything that they-- 8 Q. Could you answer my question, Dr. Dost? If they 9 told us that they put this diatomaceous earth, this bentonite 10 sealer on the railroad track.to prevent water from going down 11 in the passing track, they would have been mistaken, wouldn't 12 they, sir? 13 A. I guess if it was only bentonite, yes, sir, that's 14 correct. 15' Q. Well, that's all that Mr. Heineman told you they 16 put on it,`didn't they, sir?' 17 A. I don11,remember any other components. 18 Q. Well, that's all he told you, wasn't it, sir? 19 A. Yes. 20 THE COURT: Mr. Carr, is this a good .point to break 21 for the *day? 22 MR. CARR: Y.es, Your Honor. 23 THE COURT: We'll break at this time. We'll resume 24 again tomorrow morning at 9:30. I would remind you, as I do' 166 J tt r 1 o n 'any overnight break that you're not to discuss this matter 2 among yourselves or with anyone outside the jury panel, 3 you're not to read, listen tp, or watch anything about this 4 case in particular or subject matter in general in any of the i 5 media. Thank you for your attention and cooperation. t 6 Court's adjourned. -t '- ` 7 Gentlemen, could I see,you in chambers in about 8- five minutes. t. 9 (At this time the following proceedings were had' in 10 chambers out of the hearing of the jury.) 11 THE COURT: Let theJ,record indicate thatwe're in 12 chambers outside the"presence of the jury to argue v 13 defendant's motion for, leave to call Dr. Kimbrough. I've - 14 read your motion and affidavit arid memorandum. Without 15, repeating, anything that 'you want to' say or add or bring up? 16 MR. MASSIF: Your Honor, I'm going to be at bat here 17 okay. 18 THE COURT:, Okay, fine, sure. 19 -MR. NASSIF: There are a couple things we do want to 20 add, Your Honor. First of all, plaintiffs have no objections' 21 to several items if you read their brief,' and I presume :-- 22 THE COURT: I did this afternoon. 23 MR. NASSIF: I presume that Dr. Kimbrough will be ; *, i 24 able to testify in the areas that they have no objection*  167 1 And in addition to that, Your Honor, we think there are other j 2 areas that fit these categories that plaintiffs have no 3 objection to which go beyond the items that they've listed, 4 and to give you an example, Your Honor, plaintiffs -- 5 plaintiffs have objected to any information on any 6 conversations that Dr. Kimbrough had with either Harry Gilmer 7 and Dr. Kleopfef, and one of the bases that they fhave 8 objected to that is of one of bases for their argument is 9 that these conversations have already been established by 10 other witnesses and by Defendant's Exhibit 1193. 11 There are additional conversations that she has had 12 with people from OSHA, Dr. David Logan in particular, and 13 other individuals which are not in evidence in this case, 14 v/hich go specifically to the Sturgeon incident, which we 15 believe are -- , 16 THE COURT: In what respect? t 1'7 MR. MASSIF: They go specifically to the issues of 18 the levels that were found in the blood of railroad worker 19 at'Sturgeon. They go to the issue of tests that she 20 performed or the Center for Disease Control performed to 21 determine whether or not the calculations by Wright State' L 22 University, which have been the subject of much discussion in 23 this case already , whether^or not the calculations by Wright 24 State University were in fact correct when they reported 168 1 levels of 2,3,7,8-TCDD in the blood of railroad workers.' 2 , She was asked by OSHA to give some assistance in 3 determining whether or not those calculations were, in fact, 4 accurate, and those conversations, although these are issues 5 in the case, the levels in these workers' bodies, as well as 6 whether or not Wright State did accurate analytical work, 7 those are issues in this case, her conversations with OSHA 8 along in this area and the work that her agency performed 9 have not been brought out in'this case at all to date. 10 There are additional areas which we consider to be 11 fact items all raised in the context of her review of the 12 Sturgeon situation, which we feel she should be able to 13 testify on having to d with analysis that was performed of a' 14 child that was -- that suffered respiratory arrest nine days 15 after th spill. She was consulted and asked by a physician 16 to another conservation which has not been brought out, she 17 was consulted and asked by the child's physician to perform 18 some additional analytical work and to review.some clinical 19 findings, which"she did' perform, which she did do, and those 20 results. We feel, are facts which are directly applicable to 21 this case, which she should be allowed to testify about. 22 I n addition, under her direction samples of OCP 23 crude were analyzed from the.Sturgeon site.' I 'm sorry, Your 24 Honor, serum samples from the Sturgeon -- from Sturgeon 169 1 people involved in either the cleanup at Sturgeon or living 2 in the town of Sturgeon, serum samples were analyzed for 3 OCP-crude at' her direction or by her office. 4 1 In addition to what we' still consider to be factual 5 information, that is, the fact that she conducted a test by 6 -- of material from,the tank car,, a rabbit ear test of -the 7 material from the tank car. Plaintiffs have agreed that she 8 can testify about Plaintiffs' Exhibit 1665 and whether she (i 1 9 peer-reviewed that document, there's no issue there. 10 We believe, Your. Honor, that she should be able to 11 testify on the issue of whether in the CDC calculation which 12 she was the principal author of the one part per billion 13 figure, whether .that calculation, in fact, takes 14 volatilization into account. We believe that's a fact that 15 she is in a position to testify and does not require an 16 expert opinion. In addition -- 17 THE COURT: You say that does not require an expert 18 opinion? 19 MR. WASS'IF: No, it!s- only what the calculation that 20 CDC uses has or takes into account, what that calculation, 21 it's like a mathematical formula, and I'm asking her what one 22 part of that '-- whether that- mathematical formula includes a 23 factor for volatilization. .I'm not asking for her for why it 24 includes. v 170 1 THE COURT: I understand what you1re saying. I 2 understand what you're saying. .3 MR. NASSIF: Do you want me to respond directly to 4 plaintiffs1 reply brief in addition to .the responses? 5 THE COURT: Whatever you want to do. If you want 6 to, fine. 7 MR. NASSIF: Let me just make some real quick run 8 through of plaintiffs' reply brief. Your Honor. Your Honor, 9 for the record I've already stated that 1193 does not contain 10 her conversations with OSHA. If you will recall 1193 -- 11 THE COURT: That's what you said. 12 MR. NASSIF: 1193 is her discussions with the EPA, 13 contains some information regarding her discussions, but does 14 not, 1193 does not contain the full breadth of her 15. cgnservations with the EPA. Based -- the plaintiffs object 16 to the fact in paragraph five, Your Honor, that .these -- they 17 object to the published statements. 18 THE COURT: Umhm. 19 MR. NASSIF:-- As opinions. Based on our research, 20 Your Honor, and based just upon our understanding of the law, 21 these opinions are in evidence they, have been interpreted by 22 experts in this case, they have been commented upon by 23, experts in this case and by lay witnesses as well, i 24 nonexperts. Asking her to give the reasons, the basis for 171 1 those opinions once the opinions are in evidence, wexdo not 2 believe constitutes an expert opinion. So the fact that the 3 published statements or the opinions themselves may be expert 4 opinion, they are already in the case. Her basis for those 5 opinions we do not believe constitutes based upon the cases 6 we have cited to you, expert opinion. 7 THE COURT: I've read them. 8 * MR. NASSIF: Okay. In addition, opinions that she 9 has given in the past, which,she has, you know, she has 10 relayed to either other agency people, we have not been able 11 to get those opinions in. We still believe, Your Honor, that 12 these past opinions, although we can give the information r fi 13 leading up to the request for her opinions, we don't believe 14 these past opinions are being introduced for the truth of' -- 15 for their truth as a typical expert opinion would be. We 16 believe that these -- evidence of her response, whether it 17 was in the form of an opinion or not, done in the past, 18 regarding the Sturgeon situation, we clearly believe we are 19 entitled to get into evidence her side of the conversation. 20 And on Paragraph 8,,,Your.Honor , having to-do.wih 21 -- Paragraphs 8 and 9 having.to do with prejudice to the 22 plaintiffs. Experts from both side in this case, Dr. Carnow, 23 Dr. Silbergeld have testified'regarding Dr. Kimbrough's 24 opinions and her studies. Our experts have testified about 172 1 them as well. It borders on surprise-to me for the 2 plaintiffs to argue prejudice as a result of their inability 3 to know her position on dioxin. I mean, there are exhibits 4 in this case which reveal heir position on dioxin. If they're 5 unfamiliar with her position on dioxin at Sturgeon, we have 6 produced documents to them, which disclose that position, and l there may be additionalf.a .few additional documents, but it's t 8 certainly not anything, we could not disclose in time for ,9 them to prepare for her testimony. 10 Furthermore, there have been other experts in this 11 case where they have not taken a deposition prior to this 12 expert coming on to the stand. Dr. Wendell Kilgore, who Mr. 13 Carr describes as our chief expert on toxicology, was never 14 deposed by the plaintiffs in.this case. There's testimony in 15 this case that Dr. Kimbrough and Dr. Silbergeld are not only 16 known to each other, they are aquaintances, perhaps even 17 beyond aquaintances by Mr. Sh'roy. Obviously Dr. Silbergeld 18 can provide the plaintiffs with any assistance they might 19 need in preparing for her testimony and in assessing her 20. position on various subjects.* 21 Finally, if they want to take her deposition, as 22 far as we are concerned, that tis something that's available. 23 We will arrange it at a time during a court break. She does 24 not -- we want her to testify before the medical case begins. 173 1 However, if she can testify as an expert witness, as we 2 believe she should be able to, then a deposition can be 3 arranged at some mutually convenient time. 4 Getting to the point, the final point, Your Honor, 5 and I think really if you've read this Curry decision-- 6 THE COURT: I have read all cases cited. 7 MR. MASSIF: Okay. You read this Curry decision, we 8 believe that the reasons that: the Appellate Court stressed in 9 Curry for saying that it was not an abuse for the Judge to 10 allow the expert witness to testify in that case despite the 11 fact he had not been disclosed are on all fours with Dr. 12 Kimbrough's position in this case. 13 The factors to be considered are outlined in-the 14 case. I-don't have to go over them, but we believe Dr. 15 Kimbrough is on all fours. We believe there's even a stronger 16 argument for her testimony in this case, because both sides 17 have engaged in interpretation of her opinions, both sides 18 have mentioned her repeatedly, she's become a very prominent 19 figure in this litigation, and yet there's been no direct -1 20 testimony as to her position on this incident, and for that 21 reason we think it's critical, arid I'm going to have to ask 22 Bruce, my understanding, and,maybe I'm wrong on the issue of 23 our opportunity to subpoena her in 1983, my understanding was 24 we were informed at some point that the Center for Disease 174 1 Control would not honor such,a subpoena. Do you recall that, 2 Bruce? 3 MR. RYDER: That's correct, that's my recollection. 4 MR. NASSIP: We inquired-- this addresses 5 plaintiffs' motion -- we inquired as to whether or not -- ' *> 6 and, Your Honor, I got this motion, plaintiffs' motion at 7 2:45, so I haven't been able:-- 2:45 today-- 8 THE COURT: That's when I got it, too. 9 MR. MASSIF: Okay, fine; I haven't been able to 10 confirm that we were denied or we were told they would deny V 11 her -- access to her ,in the form of a deposition if we 12 subpoenaed them. 13 THE COURT: I got that impression from the original 14 memorandum or affidavit or something. That was the 15 impression I got when I read your originally submitted 16 materials. 17 MR. NASSIF: Yes, and that was confirmed by the 18 Center for Disease Control's attorney when they changed their 19 position. 20 THE COURT: I read that letter, the letter you 21 attached. That was the impression that I gotv 22 MR. NASSIF: We inquired on that point, your Honor, 23 at that time, and we were told that they would not honor it. 24 THE COURT: Mr. Carr, do you have anything to you 175 1 want to say? 2 ' MR. CARR: Yes, Your Honor. The -- going a little 3 in reverse order. The letter they refer to an is a request 4 that she come -- it's an October 4th letter he refers to-- 5 obviously the -- requesting that she appear in St. Clair 6 County in this case to testify. There is no way that any out 7 of state witness can be required to appear herein. Whether 8 there is or is not a policy on the part of the Department of .9. Health and Human Services to allow or not allow their 10. employees to testify ,in cases has got nothing to do with the 11 issues in'this case. They are subject to the same rules as 12 every other person in vthis United States is. 13 Dr. Renate Kimbrough, if they wanted to take her 14 deposition, there are methods whereby that deposition can he 15 taken if they do not agree to it voluntarily. There have been 16: other federal witnesses in this case whose depositions have 17 been taken. They could not require them to come here, but we 18' went there, there's Kloepfer, there's Gilmer,, there's 19, Fairless, there's Straten, there's, oh, some others I can't 2O'; think of- right now whose depositions, whose evidence 21 depositions were taken, and their policy is that these people 22 will not appear in court, although they m'odify that policy' 23 apparently for Monsanto in the case of Dr. Kleopfer, but that l 24' was their policy then. They had a lawyer at the each of those 176 1 evidence depositions that were taken. 2 All people so far as I know from the president of 3 the United States down,,to the lowest level civil service 4, employee is subject to subpoena and their depositions may be .5 taken. X don't know of any act of Congress or anybody else 6 that exempts any federal employee, possibly the CIA, from 7 having a deposition taken. There's plenty of means to do it 8 if they felt it was important in their case to do it, and 9 there's nothing in either the letter or in anything else to 10 suggest that they even tried to take an evidence deposition. 11 I didn't get anything from the affidavit. The affidavit is 12 very careful of Mr. Ryder. What it says is, and we know Mr. 13 Ryder from way past, it says I was informed X contacted and 14 attempted to obtain permission for Dr. Renate Kimbrough* to 15 testify at the trial of this matter. I interpret that to 16 mean what it -- exactly what it says, testify at this trial. 17 Nothing in anything they have filed to date suggests that 18 they.even' tried to get an evidence deposition ,and that they 19 .were rejected after having exercised the care required by our 20 courts in getting such testimony. 21 There's nothing in their affidavit to suggest that 22 they exercised any such care.other than ask if she would 23 appear at trial, and the suggestions of counsel on these 24 other points, everything that he has said that they want to 177 1 use her for is as an expert witness and to give expert . 2 testimony relating to the issues in this case. The court's 3 requirement that we be told the names of the experts who are 4 going to testify in this case was not limited to the experts 5 who are going to give opinions. These gentlemen supplied us 6` a list of some 53 experts I believe that -- I think that's 7 the number that they identified as possibly,being called in 8 this case., Kloepfer was one of them and Gilmer was one of J9 them. All1kinds of expert witnesses were identified. 10 Kimbrough was not among those expert witnesses identified. . 11 Everything else that he talked about, the serum 12 levels from the Sturgeon people, the tests of material from 13 the tank car, whether the -- : whether the CDC document takes 14 volatilization into account, whether a child suffered 15 respiratory arrest and the analytical findings dealing with 16 that respiratory arrest, the, TCDD levels, whether or not they ' 17 were accurate, and the conversations she had with OSHA, all 18 of these things are relevant only if/she is an expert. If 19 she were not an expert, any mention that she makes on any of 20 these things would have no weight whatsoever. They obviously 21 want to use her expertise here on issues that they believe 22 would favor their side. If she weren't an expert, theyJ 23 wouldn't even come close to wanting her to come to trial. 1 24 Her testimony as to the criticism or calculations of the 178 1 Wright State University, correct or not, these are statements 2 as an expert and dealing with scientific theorums, theories 3 and facts which only an expert can testify to. 4 I think everything else has been said, Your Honor. 5 I have nothing further to say. 6 THE COURT: Do you want make any kind of short reply 7 or not. 8 MR. NASSIF: Well, Your Honor, I think the issue 9 that Mr. Carr has not addressed is the issue of the 10 compelling nature of her testimony in this case and the fact 11 that we feel it's so compelling that the court should allow 12 her to testify as an expert. He has not addressed the fact of 13 the reliance and statements made by other witnesses regarding 14 what her opinions are and what the basis of her opinions are, 15 including whether or not she concluded that the 6 year old 16 child in the horse arena case had chloracne. I think these 17 things are critical to this case. 18 It's a two year old case, it is not the typical 19 situation where one might expect to be on your guard on or 20 notice that if you don't list the five experts you plan to 21 call, you do so at your peril. 22 THE COURT: Wait a second. Why would length have 23 anything to do with compliance with a court order? 24 MR. NASSIF: Because, Your Honor, the length is the 179 1 reason why she's now available- I mine if we -- 2 THE COURT: But that's -- no, no, no, wait a 3 second. Whoa, whoa, v/hoa, that's not what you said* That's 4 not what you said. You're referring to listing and something 5 like that, which is in complaicne with a court order 6 concerning discovery. Why would length have anything to do 7 with compliance with a court .order? 8 MR. MASSIF: Length-- well, length has -- 9 THE COURT: Of the trial. 10 MR. NASSIF: Length of the trial is the reason why 11 we are in a position which is different from what we had been 12 in 1983. 13 THE COURT: I'll grant you that. They've changed 14 their policy for this individual circumstance since '83. 15 , MR. NASSIF: Yes, Your Honor. 16 THE COURT:> No iqu- estion abouti that. 17 MR. MASSIF: That's what I meant by -18 THE COURT: That's shown by the letter. 19 MR. MASSIF: In 1983 we were limited to listing, ,1 20 believe it was in December of '83'five experts on toxicolo.gy 21 we' planned-- 22 THE COURT: November or December. 23 MR. HEINEMAN: Five retained experts. 24 MR. NASSIF: Five retained experts. We did not want j 180 1 to1list someone who at the time we felt strongly because of 2 what we had been told not only regarding her testifying `at 3 the'trial but also regarding her deposition -- their-- what 4 their position would be if we attempted to depose her. At 5 that time we opted not to list her as one of our five 6 experts. 7 MR. CARR: They didn't list her on the other list 3 of experts either. You listed a lot of experts that you 9 didn't call, counsel. 10 MR. MASSIF: For the same reason, your Honor, other 11 experts have-- that we listed either were available or had 12 been taken by deposition testimony as X recollect at least. 13 THE COURT: Well, that's different. That's 14 different than what you said earlier. That's fine. I can 15' accept that. Okay. Anything else. 16 -MR. CARR: *If I can respond to what he says about 17i all the witnesses relying. The only people in this case that 18 have testified that they relied upon anything Dr. Kimbrough 19 has said has been the defendants, not the plaintiffs. 20 Plaintiffs haven't -- . none of our experts have indicated they 21 rely upon' anything. Matter of fact, all experts' have had 22 things to the contrary to say about it. 23 MR. NASSIF: Your Honor, Dr. Carnow has testified^ 24 and X don't know if we have the transcript with us, but has i 181 1 testified that in his opinion Dr. Kimbrough does, not support 2 the one part per billion limit in soil, and I may be 3 paraphrasing that. But, Your Honor, he has commented, and I 4 have the transcript here. 5 THE COURT: Can you give me the date. Could you 6 give me the date arid line, page. 7 MR. NASSIFri June 11, 1984, Page 20, Line 12 through 8 17. . 9 THE COURT: Let me see that. 10 .MR. MASSIF: Here, Your Honor. 11 MR. CARR: There's no contest on anything like 12 that. She hasn't said, and I'm sure she wouldn't say if she 13 came here that CDC'has found that one part per billion, below 14 one part per billion is safe.1There's no issue on anything, 15 no witness here has ""'except1 their toxicologist. 16 MR. MASSIF: We disagree with that, your Honor, with 17 due respect to Mr. Carr's opinion. 18 MR. CARR: But anyway, Your Horior, there's nothing 19 that they've related that I've heard that's not In evidence 20 by one witness or another in behalf of Monsanto. There's 21 nothing new dealing with any issues here that I know of that 22 they haven't already put in evidence. 23 MR. MASSIF: Your Honor, on the newness issue, 24 besides the OSHA information and the rabbit ear test and her 182 1 participation and what she concluded on the Sturgeon incident 1i 2 is not in .evidence. That is^all very new, and the other 3 thing that would be very new to this case is to have the 4 person who wrote the article actually be the one interpreting 5 it. That wpuld be very new to this case, Your Honor. 6 MR. CARR: That would be true with any expert 7 witness. It's always^ new to have the expert that wrote Ji 8 interpret'it. My point in saying there's nothing new here is 9 there are no new items of scientific importance that would 10 come in here that would change any of the relevant facts in 11 this case. She's not going to say that there was more TCDD 12 in the soil than your people have said. She's going to 13. obviously say that there was something below that or that was 14 in the tank car. What's new about that. 15 Conversations with OSHA are not relevant to 16 anything that I'm aware of. This child and the respiratory 17 arrest, what she might say about that, she's not a doctor. 18 It wouldn't be Relevant to anything for her. Serum from 19 Sturgeon people unless you relate to the serum of the 20 plaintiffs in this case and their serum was tested, that's 21 got no relevance to anything. 22 -I can't see anything on any issues that are of 23 concern in this case that she has any testimony to present 24 that has not already been presented in one or more forms by 183 1 other1expert witnesses in behalf of Monsanto or that cannot 2 be presented in one or more forms by expert witnesses already 3 listed by Monsanto.. 4 MR. NASSIF: Your Honor, she is an M.D., it's my 5 understanding that she is. In addition, I think the work 6 that she'did pertaining to the Sturgeon situation has not 7 been adequately covered in the testimony of the other 8 parties'. They been specifically excluded from testifying. I 9 think there are critical .issues that have hot been*covered in 10 this cas in terms.of the CDC's position on the Sturgeon 11 incident, what the CDC did to'assess the Sturgeon incident. 12 All of that information has not been presented, and I think 13 what the CDC -- their position on dioxin in general as they 14 see dioxin at less than one part per billion has not been 15 presented in this case. 16 THE COURT: Okay. I'll go over all this, and I'll 17 give you a decision first thing tomorrow morning, and then we 18 will, depending on my decision, go from there. 19 MR. CARR: All right, Judge, thank .you. 20 THE COURT:' Tomorrow night we're going to go over 21 evidence depositions? 22 23 24 185 1 STATE OF ILLINOIS ) ) SS. 2 COUNTY OF ST. CLAIR ) 3 4 ,,. , ,, * 5 I, Richard P. Goldenhersh, one of the Judges in and 6 for the Tv/entieth Judicial Circuit, do hereby certify that 7; the foregoing transcript is a true and correct transcript of 8 the proceedings had in said cause. 9 Dated this ____ day of December, 1985. 10 11 12 13 RICHARD P. GOLDENHERSH, JUDGE 14 15 16 17 18 19 20 21 22 23 24 ' 184 1 STATE OF ILLINOIS ) ) SS. 2 COUNTY OF ST. CLAIR ) 3 4 If MARSHA SCHNIPPER, certify the foregoing to be a 5 true and accurate transcript of the testimony and proceedings 6 in the above-entitled cause. 7 Dated this day of December, 1985. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24