Document G6oG1pyj9YvegxVLEwmDdzQNv
IN THE UNITED STATES DISTRICT COURT
IN THE MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
INDEPENDENT LIFE AND
)
ACCIDENT INSURANCE
)
COMPANY, a Florida Corporation,
) )
) CIVIL ACTION
Plaintiff,
)
) FILE NO. 83-613
vs . )
)
GENERAL ELECTRIC COMPANY, )
VOLUME I
a foreign corporation,
)
)
Defendant.
)
Deposition of HOWARD S. BERGEN, JR., taken on behalf of the Plaintiff, pursuant to Notice, In accordance with the Federal Rules of Civil Procedure, before Sharon D. Upchurch, Certified Court Reporter and Notary Public, at 1200 Candler Building, Atlanta, Georgia, on the 10th day of December, 1985, commencing at the hour of 10:30 a.m.
Stuart S. Huseby & Associates, I nc.
CERTIFIED SHORTHAND COURT REPORTERS
Suite 400 One Park Place 1900 Emery Street, N.W. Atlanta, Georgia 30318 (404) 351-0300
P. O. Box 719 Gainesville, Georgia 30503
(4041 536-7028
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1 APPEARANCES OF COUNSEL:
2 On Behalf of the Plaintiff: THOMAS M. BAUMER, Esq. LAWRENCE J. HAMILTON, II, Esq.
3 Gallagher, Baumer, Mikals, Bradford, Cannon & Walters
4 2525 Independent Square
Jacksonville, Florida 32201;
5
On Behalf of Monsanto
6 Corporation:
CHARLES B. LEE, Esq. Miller & Martin
7 10th Floor Volunteer State Life Building
8 Chattanooga, Tennessee 37401
9 On Behalf of General Electric Company:
10
11
12 On Behalf of the
13 Deponent:
14
15
THOMAS M. BURKE, Esq. Rumberger, Kirk, Caldwell, Cabaniss & Burke 11 East Pine Street Orlando, Florida 32802
DOUGLAS P. ROBERTO, Esq.
|
Georgia-Pacific Corporation
113 Peachtree Street, N.E, ;
Atlanta, Georgia 30348--5605|
16
17 18 HOWARD S. BERGEN,
19 being first duly sworn, was examined and testified as
20 follows: 21 EXAMINATION 22 BY MR. BAUMER: 23 Q Would you give us your name, please.
24 A Howard S. Bergen. q And what is your office and home address?
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1 A My office address is 133 Peachtree Street, 2 N. E,, Atlanta, Georgia, 30303 . 3 Q And your home address? 4 A 4615 Graywood Trace, Norcross, Georgia, 5 30092 . 6 Q And how long have you resided in the Atlanta 7 area? 8 A Approximately six years. 9 Q And where did you reside prior to that? 10 A Portland, Oregon. 11 Q And before that? 12 A Houston, Texas. 13 Q And in Houston, how far back does that take 14 us in years? 15 A I was in Houston from '76 to the fall of '77. 16 Q And where were you residing prior to that 17 time? 18 A In St. Louis, Missouri. 19 Q How long were you there? 20 A Off and on, most of my life. I was born and 21 raised there? but during my working years, I spent some 22 time in Los Angeles for Monsanto. 23 Q You were with Monsanto in St. Louis? 24 A That1s correct. 25 Q What is your educational background?
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1 A I'm a chemical engineer.
2 Q What institution?
3
A
Washington University, class of 1942.
4 Q Do you have any postgraduate degrees?
5 A No, sir.
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6
Q Have you taken any postgraduate courses?
7 A No.
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8 Q Have you had any continuing educational 9 courses since you graduated?
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10 A A series of management courses.
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11 Q Would you trace for us, please, Mr. Bergen,
12 your work experience from the time you graduated. Tell j
13 us the names of your employer and your specific duties.
14 A I graduated in '42 and went into the service
15 right away. I got out of the service in February,
16 appro)timately February of ' 46 . I was at Monsanto for 30 17 years until ' 7 6 and lef: t in about May of '76, May or
18 June.
19 Q And by whom were you employed?
20 A Monsanto. And then I left Monsanto, and I
21 was employed by Shintech, Incorporated, which is
22 owned by Shinitzu in Japan. I was president and
23 chief executive officer.
24 Q And how long were you president?
25 A A little over a year.
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1 Q And that takes us to *77? 2 A Yes, through '77, in the '77. And I 3 joined Georgia-Pacific in late '77, and I'm still at 4 Georgia-Pacific. 5 Q When you first joined Monsanto, what job did 6 you hold? 7 A I was in the technical service and 8 development department of the organic chemicals 9 division. 10 Q What were your duties? 11 A Primarily developing new plasticizers and 12 doing technical service on plasticizers. 13 Q Were you in research? 14 A No, sir. 15 Q Were you expanding in existing products then 16 when you were developing new products? 17 A Introducing new products to the marketplace 18 and also doing technical service on established 19 products. 20 Q Tell us what technical service means, 21 A Calling on the customer and helping him with 22 his problems. 23 Q Is it sales oriented? 24 A It's sales oriented, yes. 25 Q But your job wasn't to sell?
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1
A That's
correct.
2 Q Did one need a chemical engineering degree to
3 hold the job you had?
4 A Yes.
5 Q How long were you in that position?
6
A Pour or
five years.
7 Q So then where did you go?
8 A Then I went -- they transfered the technical
9 service function into sales, and I went into sales at
10 that time and then did about another three or four years |I
11 in that kind of a role. And then I went to a field
I !
12 office and did field sales, selling a line of products, i i
13 That's when I was out in California, Los Angeles.
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14 Q For how long?
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15 A About two and a half years, approximately. I > I
16 think '55 to '57, somewhere in there.
17 Q And thereafter?
18 A Then I returned asproducts manager of
19 plasticizers to St. Louis, and I was in that for five or
20 six years. Then I was made a director of sales for
1
21 three or four different business areas.
22 And then after that, I was made a business
23 director of what we call speciality chemicals. And then :
24 they enlarged my scope, and I became business director
25 of paper chemicals and specialty chemicals. They
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1 combined the two groups. 2 Q Specialty and paper? 3 A Yes. 4 Q And was that the job you were holding when 5 you left Monsanto? 6 A No. Shortly before I left, maybe six months 7 to a year, I became development director, business 8 development director. 9 Q And that was in what year? 10 A That was late *75. 11 Q Through your departure? 12 A Yes. 13 Q Did you retire from Monsanto? 14 A I took early retirement. 15 Q The years that you were business director, 16 what years were those? 17 A As I recall, it was 1970 to '75. 18 Q And what years were you business director of 19 just specialty chemicals? 20 A '68 to '70. 21 Q What uses were the chemicals put to that you 22 were involved with when you were just with specialty 23 chemicals as business director? 24 A These were various products that went into 25 many different end uses. One of the uses was the
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1 dielectric fluids of transformers and capacitors.
2 Another area was the what we call functional
3 fluids, and these were hydraulic fluids, they
4 were hydraulic fluids for dye casting machines,
5 compressors, materials like that; they were also heat
6 transfer fluids.
7 Q Now, the dielectric fluids, these were used, 1
8 you say, in transformers?
1
9 A Yes.
10 Q Capacitors? .
11 A Yes.
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12 Q Were you involved with the same type of 13 products then when you were business director of
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14 specialty chemicals and paper chemicals?
15 A Yes; they just enlarged my scope.
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16 0. What were your day-to-day duties as a
17 business director between '68 and '75?
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18 A Well, the general functions of the business
19 director was that he was the general manager of the
20 business, and he ran all the aspects or was responsible
21 for the research and development, the manufacturing, the
22 sales, marketing, commercial development of products,
23 anything pertaining to the business area.
Q How many people did you have working for you
in that time frame?
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1 A Which time frame? 2 Q Weiwhen you were business director of 3 specialty chemicals? 4 A Directly reporting to me? I'd say 5 approximately 50 to 70, somewhere in this range* 6 Q And how many? 7 A Not including the plant people. The plant 8 people reported in through a matrix organization at 9 all times. 10 Q How about then when you became business 11 director of specialty chemicals and paper chemicals? 12 A It added about probably another 50 people. 13 Q What is the next position above general 14 manager in that respect when you were businessdirector? 15 A I reported to at that time it was the general 16 manager of the division, which was the vice president 17 position. 18 Q Did you have personal contact with customers 19 when you were in the job of business director? 20 A Yes. 21 Q Did you have contact with particular 22 customers or just customers in general? 23 A Not all the customers; but typical customers 24 of each of the segments, I would get involved with, 25 Q And what type of involvement did you have
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1 with those customers, in general terms?
2 A Primarily, what you would normally do in the
3 business relationship. You'd talk about products and
4 markets and applications of your products --
5 Q Did you have --
6 A -- prices, availability, all those things.
7 Q Did you have any communication with General
8 Electric Company during that time frame, say, '68 to
9 75?
10 A Yes, we did.
11 Q Did you, personally?
12 A Yes.
13 Q Did you have any specific assignments while
14 you were at Monsanto and during the year '68 through '75
15 that related specifically to G. E.?
16 A No.
:
17 Q What were the trade names of the dielectric
18 fluids that you were involved with during the years 1968
19 through '75?
20 A Pyranol, Inerteen, Aroclors.
21 Q There were a number of different Arbclors,
22 were there not?
23 A That's correct.
.
24 Q How many, do you recall? 25 A Well, I think we marketed maybe ten to 15
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1 different grades
2 Q What is the distinction between the various
3 grades of Aroclors?
4 A The degree of chlorination and whether it was
5 biphenyl or ter phenyl derived.
6 Q And which Aroclor had the highest degree of
7 chlorination?
8 A Higher numbered ones.
9 Q 1254, 1260?
10 A Yes.
11 Q Were 1254 and 1260 involved with Pyranol?
12 A I believe they were.
I
13 Q And Pyranol is a trade name for the
14 dielectric fluids that went to General Electric, was it
15 not?
16 A X believe that's correct. 17 Q Do you know whether General Electric had the
18 copyright or trade name on Pyranol?
19 A I don't recall. 20 Q Was it a name that was owned by Monsanto, to
21 your knowledge?
22 A I don't believe,
23 Q What other companies did Monsanto sell a
24 fluid similar to Pyranol to for the dielectric fluids? 25 A We sold the product nationwide to all the
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transformer and capacitor people that were in the business. We were the sole United States supplier.
Q Is that true at all times that Monsnto 4 was the sole supplier? 5 A As long as I was involved, yes. 6 Q To your knowledge, was there ever anyone else 7 that manufactured the product? 8 A I believe later on, towards the latter period 9 when they began to go to other products, some other 10 products were eventually approved that we did not make; 11 but that was after I left. 12 Q For dielectric fluids? 13 A Yes. 14 Q Do you know what polychlorinated biphenyls 15 are? 16 A Yes. 17 Q Do you find those in Pyranol? 18 A Yes. 19 Q And do you know the characteristics of PCD's? 20 A What do you mean by characteristics? 21 Q Why are they in dielectric fluids? 22 A Because of their dielectric properties, their
expandability, their fire resistance. Q Are they biodegradable? A Yes, some are.
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1 Q Are those that have Aroclor 1254 and 1260
2 biodegradable?
3 A I believe certain segments of them are.
4 Q When did you first become aware, Mr. Bergen,
5 that Pyranol contained polychlorinated biphenyls or
6 PCB's?
7 A As soon as I got involved in the business.
8 Q When was that?
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9 A 1968.
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10 Q And how did youbecome aware that PCB's were j
.l
11 in Pyranol?
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12 A Part of my business area, my job, is to learn I
13 that.
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14 Q Did you ever learn that there was any
15 question about whether or not PCB's should be introduced
16 into the environment in any manner?
17 A I did not know that for quite a long period
18 of time.
19 Q When did you first become aware that there
20 was a question about whether or not PCB's should be
21 introduced into the environment?
22 A The question of whether they were in the
23 environment was first brought to light by some Swedish
24 investigators in approximately 1968, '70, in that time
25 frame.
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Q Is that when you first learned of it, that
they were in the environment? A That's when I first learned that they might be i
in the environment. We had not confirmed that.
5 0 How did you learn that, though? How did you
6 learn that from the Swedish?
7 A We read their publications.
8 Q Were these publications in technical
9 journals?
10 A I believe so, I'm not sure.
11 Q Was it in the general media? 12 A Not general, I don't believe.
(
13 Q And how is it that you came to read the
14 technical journals that had the Swedish information in
15 it? 16 A
I Our people read them and then brought them to
17 my attention.
18 Q When you say our people, you mean Monsanto?
19 A Yes. 20 Q What type of people are you speaking of.
21 scientists? 22 A Yes. 23 Q Did you, yourself, authorize or request any 24 investigation as to the validity of the Swedish
25 information?
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1 A 1 guess you'd say collectively we questioned >
2 the validity of it, and so we decided to investigate to 3 see if we could verify it,
4 Q What was the initial information? What did
5 the Swedish scientists write?
6 A I don't specifically recall now.
7 Q Well, did they write that there were PCB's in 1
8 the environment? was there some concern about that?
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9
A I believe they were zeroing in on some
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10 wildlife and saying that it was affecting some wildlife, j
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Q In what manner was it affecting wildlife?
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12 A 13 Q 14 1970?
Possibly causing birth defects.
i 1 !
And this was, then, in the time frame 1968 to J
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15 A Approximately.
16 Q What studies, to your knowledge, did Monsanto 17 undertake when it learned of the information contained
18 in the Swedish report?
19 A We did biodegradation work, and we did some 20 animal or fish feeding studies and things like that. 21 Q Over what time frame were these
22 biodegradation and fish studies undertaken?
23 A I believe they were probably about 1970 to
24 '74, '75, or pretty much of an ongoing study. 25 Q And do you know where they took place?
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1 A Not precisely.
2 Q Was it in St. Louis?
3 A Some was in St. Louis. 4 Q Who would have been in charge of those 5 studies, to your knowledge? 6 A I forget some of the names now. 7 Q Give me any names you can recall. 8 A Dr. Bill Richard was our research director; 9 but some of the actual biodegradation studies were done 10 by a different group, I think it's Scott Tucker. 11 Q Dr. Richard, what was his position? 12 A He was the R and D director for the 13 specialty products business group. 14 Q Each group had its own director of R and D? 15 A If R and D was required, yes. In our group 16 we did require it. 17 Q Did you have a medical director in the 18 specialty group? 19 A No, not in our group. We used the corporate 20 medical. 21 Q Who was the corporate medical director in 22 1978 to 1970? 23 A Dr. R. Emmett Kelly, I believe. 24 Q Now, did you at some point in time read in 25 the literature of general circulations such as
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1 newspapers and magazines circulated to the general 2 public any articles dealing with PCB's and the fact that 3 they might be in the environment and the effect of their 4 being in the environment? 5 A As I recall, the media began to pick up on 6 some of the stories; and so there were various press 7 articles that would appear from time to time. 8 Q Was in this 1968 and 1970? 9 A I believe it came later, more like '71, *72. 10 Q And can you recall what those articles would 11 have indicated? 12 A Not precisely, no. 13 Q Well, generally, what did they indicate? 14 A Well, mostly, it was speculation about what 15 might be happening. There was very little scientific 16 proof. 17 Q What was the speculation? 18 A Well, I don't recall. 19 Q Was it speculation that it was harmful to the 20 environment, to have PCB's interjected into the 21 environment? 22 A That's what they were speculating. 23 Q And it was harmful to wildlife andfish? 24 A That's what they were speculating, 25 Q Did you ever receive the results of any of
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1 the Monsanto tests or experiments or studies?
2 A Yes.
3 Q When did you start receiving results of those
4 studies? 5 A As soon as they started making the tests.
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6 Q Well, in the '68, '69, '70 time frame?
7 A I think it was more in the '70 time frame.
8 Q What do you recall having been told as to the j
9 results of the Monsanto tests?
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10 A I don't recall the details, but'we did find |
11 that the lower chlorinated biphenyls were rapidly
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12 biodegradable and passed through the fish or not
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13 retained in the fat tissues of the fish, and the more j
14 highly chlorinated ones were more retained and more 15 slowly biodegradable. That's the basic thing I
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16 remember.
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17
Q Meaning that the higher chlorinated ones
;
18 remained in the environment for a considerable longer
19 period of time? Is that what you are saying?
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20 A They were less biodegradable.
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21 Q Were any of them not biodegradable?
22 A To my knowledge, everything could eventually !
23 be biodegradable.
24 Q Wasn't it determined that Aroclor 1254 and
25 1260 were effectively not biodegradable?
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1 A They were very resistant to biodegradation. 2 Q In general, did Monsanto take any action with 3 respect to the further production of Aroclors and 4 Pyranol when it received the information that you have
!
5 just discussed from Sweden and its own experiments and 6 investigations? 7 A Wellr I don't recall exactly when, but we did 8 begin to categorize those uses that were self contained 9 or contained in the system, a closed system versus those 10 systems which we felt had high potential for leakage 11 And we replaced and phased out our Aroclor 12 products and those open system type of applications 13 which was primarily the dye casting area and the closed 14 systems which was mainly the heat transfer area and the 15 dielectric areas. We were looking for replacement 16 products, but that was not an easy task to do. And we 17 never did totally replace the performance of the other 18 products. 19 Q At some point in time, though, Monsanto 20 ceased altogether producing Pyranol, did it not? 21 A Eventually, yes. After I left, I believe. 22 Q And before you left, it was selling Pyranol 23 only for closed systems? is that correct? 24 A That's correct.
Q And by closed systems, do we mean effectively
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1 transformers and capacitors? 2 A That's correct.
i !
3 Q And so at some point in time, you correct me <
4 if I'm inaccurate, around 1970 or ' 71, Monsanto ceased ( I
5 selling Pyranol or Aroclors for any use other than
6 closed uses?
7 A I'm not sure of the time frame. It might
8 have been a year or so later than that, but I think you ;
9 probably have some records.
I
1 Q We'll get to those in a minute.
11 A I don't recall the exact time frame.
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12 Q I'm just trying to get your best
13 recollection. But it was sometime, though, before *72,
14 was it not, that Monsanto ceased selling Aroclors or
j
15 Pyranol for any use other than closed systems as we've i
16 identified, transformers and capacitors?
17 A I can't confirm that date.
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18 Q In that time frame, though?
19 A It was somewhere in the time frame, I
!
20 believe, of '71 to '73 or '74 that we restricted the
21 sale and use.
22 Q Why did Monsanto restrict the sale or use?
23 A We became concerned that it was a potential
24 threat to the environment, and we also sensed the
25 liability feature as a company.
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1 Q You mean legal liability? 2 A Yes. 3 Q For injuries or harm to either animals or 4 humans? 5 A Just legal liability, broadly. 6 Q As broad as it could be? 7 A As broad as could be interpreted those days. 8 Q Back then you were concerned about that? 9 A Yes. 10 Q And the concern as to the threatto the 11 environment, what was that concern? What do you mean by 12 that? 13 A Well, I think it was a broad concern from the 14 standpoint of first of all, wanting to get the 15 scientific accuracy of knowing what were facts versus 16 what was rumor and allegation. And you have to recall 17 that some of this work came out of the allegations on 18 DDT, and DDT was the first wave of the environmentalist 19 problems. 20 And PCB's, while they were looking at DDT, 21 they found some of these other things out there; and 22 they tended to identify them as PCB*s. And we found out 23 in some cases that was correct and some cases that was 24 incorrect. That really led to where we are at the 25 present state of the industry, where now many, many,
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1 compounds are out in the environment.
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2 And so the world was really by that time
t
3 equipped with the instruments that could measure these i
4 things, and so we were just really finding out what was
i
5 going on in the world.
1
6 Q But getting back to the time frame we're now
7 speaking of, in the early 1970s, Monsanto felt that it
8 had an obligation to the environment to withdraw the
9 product, did it not?
j
j
10 A We felt that if we could develop replacement j
11 products that had the same benefits, the cost benefits, j
12 that PCB's did, that it would be a desirable thing to I
13 do.
14 Q The product was withdrawn from the market i
I
15 except for capacitors and transformers, as you've told j
16 us, I think, because Monsanto had a concern as to the i
i
:
17 threat to the environment and because of the legal
.
18 liability; is that correct?
19 A We felt that if we could develop better i
20 products that had a cost benefit performance and did not '
21 endanger the environment, it was a definite plus. 22 Q Were there substitute products prepared and |
23 developed for all uses of the Aroclors at the time they
24 were taken off the market?
t
25 A We were doing research and trying to replace
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1 all the applications, yes.
i
2 Q Listen to my question. Was there a
i
3 substitute product available for sale at the time the '
4 Aroclors were taken off the market for every use except ,
5 capacitors?
6 A Well, the Aroclors were not taken off the
7 market until after I left, so I can't answer that
8 question.
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9 Q The use of Aroclors and Pyranol for products i I
10 other than transformers and capacitors was discontinued |
11 by Monsanto at some point in time in the early 1970s;
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12 correct?
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13 A Correct.
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14 Q And at the time that was accomplished,
15 Monsanto did not have a substitute product for all the
16 various uses, did it?
17 A That's correct.
18 Q So it took the product off the market before
19 it had developed a substitute, all the necessary
20 substitute products?
21 A There were substitute products for the open
22 system type of products, the dye casting areas and the
23 hydraulic fluids. They were more biodegradable; and on
24 the cost benefit trade-off, from out view they were
25 replacement products. There were no replacement
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products for dielectric fluids as long as I was in that position.
|
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Q But I think you told us earlier, and correct
4 me if I misstate that, that there was a decision made by , !
5 Monsanto to phase out Aroclor production in the early
6 '70s? correct?
;
7 A That's correct.
8 Q And, in fact, the use of Aroclors in certain ! !
9 products were discontinued inthe early '70s?
;
10 A By early *70, if you're saying '72, *75, yes. j
11 Q But they were still being used in
i
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12 transformers and capacitors as adielectricfluid;
j
right? 13
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14 A That's correct.
15 Q And the reason they were removed from the 16 market was that Monsanto had a concern for the threat to 17 the environment and because of legal liability? 18 MR. BURKE: Let me object to the form,
19 It's repetitious, and it is lea ding. Go ahead and 20 answer.
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21 THE WITNESS: As I think I said earlier,
22 we had developed repiacement-type products which we felt ;
23 offered the same to the customer, the same cost 24 benefits, and they also were more biodegradable than the 25 Aroclors. But they were the lower chlorinated Aroclors,
I
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1 which were biodegradable.
2 BY MR. BAUMERt
3 Q Those were removed from the market , also.
4 were they not?
5 A No.
6 Q Which ones were not, what numbers?
7 A Well, the MCS 1016 was retained fo r
8 capacitors and that could have been used -- I 'm not
;
i 9 saying it was, but it could have been used in certain I
10 other formulations.
11 Q Was it used?
12 A I don't recall.
13 Q Now, the information that Monsanto was 14 developing and that you were aware of in your job, did
15 you pass that information on along to the customers of
16 Monsanto?
17 A Yes. As we developed the information, we
18 shared that with our customers.
19 Q You shared it just as quickly as you
20 received it, did you not?
21 A As soon as we felt the information was
22 correct, yes.
23 Q What do you mean by that?
24 A Well, in any research work, you have to do a
25 lot of verification and checking and cross-checking to
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1 be certain of your facts. One test alone doesn't make a 2 fact. 3 Q Did you advise any ofyour customers about 4 the Swedish discovery and pronouncement? 5 A Yes. 6 Q And did you do that about the timeyou 7 learned of it, '68, '69? 8 A It may have been months later, I don't know 9 how long? but it wasn't instantaneous, I don't think. 10 Q But it was in that sameyear, perhaps? 11 A Perhaps. 12 Q It wasn't after 1970, was it? 13 A I don't recall. 14 Q But it was within months of your learning of 15 it? 16 A Within months, which could be 20, 30, months. 17 Q Twenty or 30 months after you learned about 18 it, you told your customers? 19 A Could have been. 20 Q Do you recall whether that was the case? 21 A I don't recall. 22 Q What did you tell yourcustomersconcerning 23 the threats to the environment from the use of Pyranol 24 or Aroclors? 25 A We just called attention to the articles and
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1 said, You can read them like we can read them, and we 2 were at work trying to verify if it's correct. 3 Q Did you tell them that there was some concern 4 about leaks or spillage or vaporization of Pyranol? 5 A Not immediately, because we didn't know if 6 the information was correct. 7 Q Well, at some point in time, did Monsanto, 8 through you or others under your supervision or your 9 co-workers, commence to tell your customers that there 10 were dangers concerning leaks, spillage or vaporization 11 of Pyranol? 12 A After we became convinced that there were 13 certain problems, we did then take the actions that 14 you're referring to. 15 Q When was that first done,? 16 A I don't recall the precise date. It was 17 somewhere in the '72, '73 period. 18 Q Now, before that, though, before you sent out 19 official notices or official information in letters or 20 correspondence about these findings, did you have 21 occasion to have personal discussions with the employees 22 of your customers concerning the Swedish pronouncements 23 or the general literature, discussions, of the potential 24 harm to the environment by the release of PCB's? 25 A We had various conversations with them, yes.
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1 Q Did that include General Electric people? 2 A I believe so, 3 Q Did you have personaldiscussions yourself 4 with General Electric people in those early years 5 concerning that subject matter? 6 A Yes. 7 Q Who is it, Mr, Bergen, that you can recall 8 first discussing PCB1s in the environment with that was 9 an employee of General Electric? 10 A I can't recall his name, He's the general 11 manager of the capacitor group, I ink it wa s Luke 12 something or other; I'm not sure, 13 Q And this was in what yea now? Bef ore 1970? 14 A I may have met him befor 1970 , but I don't 15 think our discussions on the Swedis work were until 16 maybe after 1970. 17 Q '71, '72? 18 A Possibly, 19 Q You weren't letting this thing just slide by? i
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20 You were giving it some serious attention, were you not? : !
21 A We were interested and concerned about it, | 22 and that'3 what we said. We had to, first of all, verify 23 whether it was really happening and could we get data 24 ourselves to verify, and that takes time. It took a 25 year or so, maybe two years.
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29
1 Q But at some time you then came to the
2 realization that it was true, and you started taking
*
3 action in that respect, did you not?
4 A Yes.
i
; !
5 Q And by that action, you started taking formal ;
6 legal action by getting indemnity agreements, by writing '
i
7 customers often and advising them of the potential
8 harmful effects on the environment of PCB's?
!
;
i
j9 MR, BURKE: Excuse me, that's a leading
10 question. 11
THE WITNESS:
j
I
We informed them of some of
12 the allegations of potential threats, and we tried to
I
13 keep them abreast of our work what was going on,
14 BY MR, BAUMER:
15 Q Did Monsanto eversuggest toits customer
i
!
I
;
16 that those customers,likewise, tell their customers
;
17 about the potential harmful effects of PCB's?
18 A I don't recall.
19 Q Do you know whether that was ever done by
20 General Electric?
21 A I don't recall,
22 Q Do you know whether it was done by any
23 customers of Monsanto, that they pass that inf ormation
24 on along to their respective customers? 25 A I can't say precisely what so and so did do.
HARTOLDMONOOQ6213
30
Q Did you ever receive any copies of
correspondence along those lines?
j
A I may have, I don't recall any specific one. ;
4 Q Who else do you recall having discussions
5 with at General Electric relative to PCB's and their II
6 effect on the environment back in the years 1970, '71,
7 72?
8 A Our group talked to many people, both in the
9 transformer side and the capacitor side. I was not
(
10 involved with the day-by-day conversations myself, but |
i
11 our sales people and our research people would do that. i
12
And Paul Benignus, who was our product
i
i
13 manager, was the one that was the main contact with the |
i
i
14 industry. And he had been involved in that industry for j
15 many, many years; and he knew mo3t people.
i
16 Q Did he work under you?
j
I
17 A He reported to somebody else that reported to ;
18 me. He was several levels down.
19
Q And what was Mr, Benignus' job in the '68,
;
20 '75 time frame?
;
21 A He was in charge of the dielectric fluid
22 sales.
23 Q And it would be Mr. Benignus or people who
24 worked with him that had the direct contact with the
25 G. E. people?
HARTOLDMONOOQ6214
31
1 That's correct 2 Q But you were aware by reports from your 3 employees that those contacts were going on? 4 A Yes. 5 MR, BURKE: Obviously, it's a leading 6 question. 7 If you would give me a chance to make an 8 objection if you're asked a question in which the answer 9 is suggested to you, I'd appreciate that. Thank you. 10 BY MR. BAUMER: 11 Q Did your employees report to you on a regular 12 basis as to any contact they might be having with 13 General Electric? 14 A Yes. 15 Q Did they ever report to you that they had 16 contact with General Electric people and discussed 17 during the years 70 thr ough '72 the possible harmful 18 effects of PCB' s on the environment? 19 A Again, I can' t confirm the dates. We had 20 conversations, but I can't confirm the dates. 21 q Did youhave numerous conversations? 22 A Yes. 23 Q You also had numerous correspondence, did you 24 not ? 25 A Yes.
HARTOLDMON0006215
32
1 Q And would the correspondence that you were
2 having correspond with the verbal discussions?
3 A I would assume so.
4 Q If there is correspondence dated in 1968 or
5 70 with General Electric people concerning PCB's and
6 their potential harm to the environment, would it be
7 also at that same time frame that these conversations
8 would have been taking place?
9 A I would assume so.
!
10 Q You wouldn't disagree with that, would you? j
!
11
MR.BURKEt Objection, leading,
|
12
THE WITNESS: I think the recordsmight
j
13 be verified at Monsanto as to the exact dates and the i
14 occasions.I don't know if they're still retained or !
15 not. There were records of that, but I'm not aware of
16 dates.
i
17 BY MR, BAUMER:
1
18 Q During the course of your employment, '68
19 through '75, was there a routine and systematic contact 20 with General Electric people concerning dielectric
21 fluids? A Yes.
,
Q And did Monsanto attempt to communicate to
General Electric all of the knowledge it had concerning
dielectric fluids and any harmful qualities of those
HARTOLDMONOOQ6216
33
1 dielectric fluids?
(
2 A Yes.
3 Q And was that a practice of Monsanto during
4 the entire time frame, '68 through *75, while you were
5 involved i the sale of dielectric fluids that contained
6 PCB's?
|
7 A Yes.
]
8
Q And do you know whetheror not your people
j
9 ever veered from that practice and did not make the
10 various contacts and communicate the information?
j
I
11 A Not to my knowledge,
j
l
12 Q You,on occasion, didyou not, had discussionsj
i
13 with General Electric employees concerning PCB's?
14
MR. BURKE: Objection. Leading and
!
15 repetitious.
16 BY MR, BAUMER:
17 Q You may answer the questi on.
18 A I met with General Electr ic on several
19 different occasions, 20 Q Were you not a member of several committees
21 that were dealing with matters relat ing to PCB's that
22 contained General Electric employees , also?
23 MR. BURKE: Objection , leading,
24 THE WITNESS: I don't recall that.
25 BY MR. BAUMER:
HARTOLDMONOOQ6217
34
1 Q Were you on any governmental committees that iI 2 dealt with any type of water quality rules in the early
3 70s?
4
A Monsanto had various contacts with the
>
j
5 government. I personally did not have those contacts. ; I!
6 They were people that worked for me or in related staff j
7 departments. 8 Q Was Paul Benignus involved in that? 9 A Quite possibly. I forget who all was
involved with it. 10
i ! i
j
|
11
Q Were you not on a management committee or
!
12 were you not instructed by a management committee to
13 involve yourself with certain aspects of PCB's and their
14 effect on theenvironment? 15 MR. BURKE: Objection, leading. 16 THE WITNESS: My job was involved in
i j
j
I
j
17 PCB's, and that was my job responsibility. 18 BY MR. BAUMER:
i
(
19 Q Let's look at some documents, Mr. Bergen, and |
20 maybe I can help you get some dates from these
21 documents. 22 23 24
;
(Thereupon, the courtreporter|
'I
marked Plaintiff's Exhibits 1,j !
2, and 3 for identification.)
25 BY MR. BAUMER:
HARTOLDMONOOQ6218
35
1 Q Mr. Bergen, let me show you a document that's
2 been marked Exhibit 1 for the Plaintiff and consists of 1
3 one, two, three, four, five sheets of paper. Would you ,
4 take a look at that? Do you recognize that document?
5 A Yes.
:
j
6 Q For the record, would you tell us what the 7 document is?
'
i
`
8
A This is a document addressed to customers.
j
9 We're advising them that we're attempting certain
10 restrictive policies of the sale and delivery of 11 polychlorinated biphenyls and that we'll sell and
l j
12 deliver these products only to manufacture the
J
13 transformers or capacitors that have entered into an
j
!
14 agreement to indemnify and hold harmless Monsanto in the !
i
15 use of these products.
.
16
Q Is that document a letter that you signed?
;
17 The first, second, and third page is a form letter, is
18 it not?
19 A Yes.
20
Q And it's one that bears your signature?
;
21 A That's correct.
22 Q And was this sent to all Monsanto customers?
23 A I believe it was.
24 Q Was it sent to General Electric?
25 A Probably.
1
HARTOLDMONOOQ6219
36
1 Q Now, let's look at it a little mote. Tell me !
I
2 why Monsanto was now only going to sell Aroclor,
!
3 Inerteen, and Pyranol to customers for closed uses?
! i
4 A We state that it's maybe harmful to the
''
5 environment, may be accumulating in the environment.
j
i i
6 The third paragraph states it pretty well.
;
7
Q
Now, the information in the thirdparagraph,
;
8 is that the type of information that had been previously !
j
9 to this letter discussed with General Electric people? j
i
10 A Yes.
11 Q Had it been part of the correspondence to
12 General Electric people, to your knowledge?
13 A I can't verify that.
-I
14 Q Had you yourself haddiscussions with General j
15 Electric employees concerning the contents of the third. j
16 paragraph?
17 A Yes,
i i
|
18
Q And who at General Electricdid you have
j
19 discussions with concerning the contents of the third j
`1
20 paragraph?
j
21 A As I stated earlier, I don't recall the
22 names.
j
'i
23 Q One was, you told us,the general manager of ,
24 the capacitor division?
1
25 A Yes; that's correct,
:
HARTOLDMON0006220
37
1 Q How about someone at the transformer
2 division?
3
A I can11 recall any specific names, but I
,
i
4 probably had some meetings with them,
;
i 1
5 Q Was there some concern on G. E.'s part as to ;
6 Monsanto's unwillingness to sell the Aroclor and
7 Inerteen and Pyranol for all uses?
8 A I don't recall.
9 Q When Monsanto chose to limit its market, was
10 there a discussion with customers as to the limitation
11 and why the limitation was taking place?
12 A Yes.
13 Q And were those discussions had with General
14 Electric people?
15 A I don't recall exactly what we told General .
16 Electric.
17 Q You did tell them --
18 A They knew what we were doing.
19 Q Did Monsanto advise General Electric prior to
20 the time this went out that it was considering limiting
21 the sale of Pyranol?
22 MR. BURKE: Let me object to the form of
23 the question. There is nothing in the document that
24 indicates whether it went out. It's undated. 25 THE WITNESS j I don't recall.
HARTOLDMONOOQ6221
38
1 BY MR, BAUMER:
2 Q You don't recall whether that was done?
3 A 1 don't recall.
4 Q Would it have been your responsibility to do ,
5 it or would it have been someone under you?
6 A People under me.
7 Q And who would have had the principal
i
8 responsibility for that?
'
II
9 A Probably Norm Johnson* Paul Benignus. We had j
10 several different directors of sales at that time. Tom
11 Gossage.
i
12 Q Is Paul Benignus still with Monsanto* to your
13 knowledge? 14 A He took
j
*I early retirement, I believe. |
15 Q Do you know where he resides?
. i
16 A He used to live in East St. Louis, Illinois. ;
`i 17 Q Now, look at the last two pages of Exhibit 1. i
18 Do you recognize that special undertaking by purchasers
19 of polychlorinated biphenyls? '
20 A Yes.
I
21 Q is that the indemnity you had reference to?
22 A Yes.
;
23
Q It's the one that's referred to in the
'
24 letter; is that correct?
25 A Yes.
!
HARTOLDMONOOQ6222
39
1
Q And this is the document that had to be
1
2 signed by all customers of Monsanto before they would be ]
3 permitted to purchase Pyranol or any product containing '
4 polychlorinated biphenyls?
' .
5 A That's correct.
1
I .I
6
Q And with respect to General Electric, that
:
7 was Pyranol that you were selling to General Electric?
8 A Could have been any of the Aroclor products, ;
9 but Pyranol was one of them.
i
j
I
10 Q And was Pyranol what General Electric put in j
11 its transformers and capacitors?
12 A Yes, normally.
13 Q Who, to your knowledge, prepared this
i
i
i
I
j
14 indemnity document?
!
15 A The legal staff prepared it.
.
16 Q Do you know whether there was any particular
17 individual who was assigned that responsibility?
18 A I don't recall who had the responsibility
19 preparing this letter, no.
20 Q Did you have any input in the preparation of
21 the letter?
22 A I'm sure I read it and had some comment in
23 the construction of it.
24 Q And the previous letter to customers, did you
25 write that or did someone write it for you?
HARTOLDMONOOQ6223
40
1 A Probably a group effort.
2 Q And would Mr. Benignus be in that group?
3 A Possibly.
4 Q Do you recall who prepared the first draft of
5 that letter that you signed?
6 A No, 1 don't.
7 Q Do you recall the date that this letter was
8 first prepared and sent out?
9 A No, I don't.
10 Q Was it prior to 1972?
11 A The letter says effective 15 January 1972, so
12 I presume it would have to be before that date.
13 Q So it went out in *7.1, wouldn't you imagine?
14 MR. BORKBi Objection, leading.
15
THE WITNESS: I don't know.
.
16 BY MR. BAUMER:
17 Q Well, if it was going to be returned back by
18 15 January, you were going to have received back the
19 indemnity provision, would you not agree with me that it
20 would in all likelihood have to have been mailed out
21 prior to 1972? 22 A It would certainly have to have some lead
23 time over the date.
24 Q But you don't have any independent
25 recollection of when it went out?
HARTOLDMONOOQ6224
41
1 A No, air.
1
2 0 Who, to your knowledge, made the decision to j
3 send out this letter and the indemnity agreement?
4 A Again, it was a group decision.
5
Q
Was it in your group where the decision was
!
6 made or was it made in some other group?
7 A Also the legal advice from our staff legal.
I
8 Q Were all the concerns about PCB1s within your ;
9 group or were any other groups at Monsanto also
i I
i
10 concerned about PCB's?
;
11 A It became a corporate concern.
j
12 Q Was it a corporate decision to send out that j
13 letter ?
'
14 A My boss, my general manager, was aware of it
15 and agreed to it.
.
16 Q He was a vice president of the company?
17 A Yes.
18 Q Were you an officer of the company?
19 A No, I was not.
20 Q Did you have to get hisconsent tosend it
21 out?
22 A I think it had his approval.
23 Q Wasn't this wholeprocess theresult of a
24 special management committee that was appointed by 25 Monsanto to study what Monsanto should do about PCB's?
HARTOLDMONOOQ6225
42
1 MR, BURKE: Objection, leading. 2 THE WITNESS: As the concern developed, 3 it escalated within the corporation. And as I said, it 4 did become a corporate concern as the facts were 5 evolving over this period of years, Q It culminated in the sending of this 7 letter? 8 MR, BURKEs Objection, leading. 9 THE WITNESS: That's correct, 10 BY MR. BAUMER: 11 Q Did it culminate in the sending of this 12 letter? 13 A We sent the letter. 14 Q And you sent the letter after having gathered 15 as much information as you could gather concerning PCB!s 16 in the environment at that time? 17 MR, BURKE: Objection, leading. 18 BY MR. BAUMER: 19 Q Is that what you did? 20 MR. BURKE: Objection, Leading, 21 THE WITNESS: I believe I've answered the 22 question earlier, 23 BY MR. BAUMER: 24 Q The letter was sent because of your corporate 25 concern about the whole issue? Was there a corporate
HARTOLDMONOOQ6226
43
1 committee appointed to study PCB's and the removal of
;
2 the products from the market?
i
3 A I believe there was.
:
4 Q And were you a part of thatcommittee?
,
5 A I imagine I was.
,
,
I
!
6 Q You were charged with certainresponsibilities!
7 by that committee, were you not? 8 MR. BURKE: Objection, leading.
I
;
9 THE WITNESS: The committee had certain !
j
10 objectives to perform.
j
11 BY MR. BAUMER:
j
!
12 Q Were you charged with certain responsibility j
13 for those objectives?
!
14 A I don't recall. I had specific items that I | :
15 personally was to do.
16 Q Was the committee aware that Exhibit 1 was
17 going to be sent out to your customers?
18 A I don't recall.
19 Q Was Exhibit 1 discussed or, if not the
20 document itself, the consent discussed with the
,
21 committee?
22 A I don11 recall.
23 Q Was it one of your duties as a member of the
24 committee to see to the preparation and mailing of
25 Exhibit 1?
HARTOLDMONOOQ6227
44
A Probably, Q Would you look at Exhibit 2. 3 A Yes. 4 Q Can you identify itfor the record? 5 A This is an undated Special Undertaking By 6 Purchasers Of Polychlorinated Biphenyls whereby General 7 Electric agrees to the undertaking as specified, 8 Q It is dated January 21st, 1972, on the second 9 page, is it not? 10 A It was signed by General Electric on 11 January 21. 12 Q But it says date? 13 A That1s correct. 14 Q And do you know who signed it on behalf of 15 Monsanto? Can you tell us who that gentleman is that 16 executed on behalf -- 17 A Yes, Mr. Putzell was our legal counsel at the 18 time, Monsanto. 19 Q Who signed it for General Electric? 20 A If you can read his writing, looks like 21 Mr. Walter Schlotterback. 22 Q Do you know Walter Schlotterback? 23 A No, I do not, 24 Q Do you know Mr. Putzell? 25 A Yes.
HARTOLDMONOOQ6228
45
1 Q He was general counsel of Monsanto? 2 A Yes. 3 Q In 1972? 4 A Yes. 5 Q Have you ever seen that document before 6 today? 7 A Yes. 8 Q When do you recall having seen it? 9 A After we received it. The records were all 10 kept. One of my people kept a record of all these 11 documents that came in. 12 Q All the indemnity agreements? 13 A Yes, Mr, Papageorge, William Papageorge. 14 Q Mr. Papageorge worked under you? 15 A That's correct. 16 Q What was his title in, say, '72? 17 A I don't recall his specific title. 18 Q Was he charged with responsibility for 19 Monsanto'a decisions and implementations of his 20 decisions with respect to PCB's? 21 A He was more the coordinator of the effort and 22 the follow-up to be sure if things were falling in line. 23 Q Such as what? 24 A Just due dates on various reports, certain 25 work efforts or whatever.
HARTOLDMONOOQ6229
46
1 Q Noticesto customers?
2 A If that happened to be one of the projects.
3 Q Have you seen this document at any time in
4 the last year?
5 A No.
6 Q Have you seen it since you leftMonsanto?
7 A No,
8
Q
Would younow look,please,
atExhibit 3?
9 A Okay.
I
I
10 Q Would youtell us for therecordwhat No. 3
11 is? 12 A This is a letter from General Electric,
!
ii i
13 Mr, Schlotterback, dated January 21 to Mr. Papageorge of ;
i
14 Monsanto saying he's executed thespecialundertaking \
15 and refers to following certain understandings which .
16 one of their people, Mr.Stapleton informed that
`
17 Monsanto will accept,
18 There are three essential undertakings or
19 understandings, and he asked Monsanto's acceptance of
20 the conditions. And Mr, Putzell has countersigned it.
21 Q Exhibit 3 is dated January 21, 1972?
|
22 A That's correct. '
i
23 Q And is that the same date that appears on 24 Exhibit 2?
= !
25 A That's correct.
!
HARTOLDMON0006230
47
1 Q And Exhibit 2 is described or entitled 2 Special Undertakings? 3 A That1s correct. 4 Q Have you ever seen Exhibit 3 before today? 5 A I don't recall it. 6 Q You didn't receive a copy of it or a copy of 7 it wasn 't put with the -- 8 A Probably was, but I don't recall it. 9 Q That was Mr. Papageorge's responsibility?
I
10 A Yes. 11 (Thereupon, the court reporter 12 marked Plaintiff's Exhibits 4, 13 5, 6 , 7, and 8 for 14 identification.) 15 BY MR. BAUMERj 16 Q Let me show you now, Mr. Bergen, a document 17 that has been marked as Exhibit 4. It consists of three 18 pages, and I'll ask you to look at that, please, sir, 19 and tell me if you can identify it for us? 20 A Okay. 21 Q Can you identify that document, Exhibit 4? 22 A It looks like a somewhat incomplete draft of 23 a corporate management committee, CMC, minutes of the 24 November 17, 1969 meeting. 25 Q What does CMC stand for?
HARTOLDMON0006231
48
1 A At that time it was called the Corporate
2 Management Committee. It was made up of the senior
3 officers, inside officers, at Monsanto.
4 Q And this was a meeting on November the 17th,
5 1969? right?
6 A Yes.
7 Q And the document indicates that you were
8 present; is that correct?
9 A Yes.
10 Q Were you present at the meeting?
11 A I assume I was. 12 Q You've read the document? Do you recall a 13 discussion of the items that are contained in the
14 document ?
15 A No, not specifically all the items, no.
16 Q Was this committee formed specifically to
17 study the PCB problem?
18 A No, it was not.
19 Q It was a standing committee of the company;
20 is that right?
21 A That1s correct. 22 Q And one of its tasks was to study the matters
23 that are contained in this three-page document? is that
24 correct? 25
MR. BURKE: Objection, leading.
HARTOLDMON0006232
49
BY MR. BAUMER:
Q Was it one of their jobs to study the matters '
contained --
4 A The purpose of the CMC was broadly to examine
5 any policies or procedures or major capital projects of i
6 the company and anything else they deemed worthwhile,
7 Q Was it to study a report on polychlorinated
8 biphenyls prepared by the organic division, law and 9 medicine departments?
;
I
j
10 A I think the fact that they wanted the meeting ' i
11 was that they wanted to have the report of it and the j
12 studies of it.
j
i
13 Q Let's look at the people, who is Mr. Smith? |
14 A C. J. Smith was I think at that time an
15 assistant general manager of the organic division. John ,
16 Mason was my boss, and he was assistant general manager.
17 Q Was he a vice president?
18 A No. Tom Smith was -- I think at that time he
19 was the vice president and general manager, although --
20 Q Of what division?
21 A Of the organic division. Myself; Jim
Springgate was a business director or product manager, I
don't recall what he was doing at that time.
Kelly was a medical director. Elmer Wheeler
was kind of an assistant or social medical director.
HARTOLDMON0006233
50
1 Q Was he a doctor?
2 A He was an industrial toxicologist. Rod
3 Harris was, again, on the legal staff. D. w. Miller, I
4 don't recall. W. C. Robinson, I don't recall.
5 Q Was Mr. Wheeler on the committee generally or
6 was he present for a particular study on polychlorinated I
7 biphenyls?
8 A He was involved in many of the aspects of the
9 medical department. 1 don't recall specifically why he :
10 was --
j
11 Q He wasn't a standing member of the management i
12 committee?
I
13 A I don't recall. I'm not sure who the members
14 were.
15 Q Were you a member?
!
16 A I don't really recall. I believe I was.
17 Q Well, if you weren't, why were you present at
18 this particular meeting?
19 A Because I was the business director of this
20 whole business.
21 Q Now, look at the second page where it says
22 plan of action. It has your name next to it. Do you
23 know why that is the case?
24 A Well, because I had the Aroclors for 25 dielectrics and the functional fluids products? and I
HARTOLDMONOOQ6234
51
1 do recall Jim Springgate was business director for
2 plasticizers. And the Aroclors were also sold as
3 plasticizers.
4 Q Were Aroclor 1254 and 1260 used in
5 plasticizers?
6 A That's correct.
7 Q And in 1979, the date of this meeting, excuse
8 me, '69, were those plasticers with Aroclors 1254 and
9 1260 still being sold?
i
10 A I believe they were.
;
i
11 Q When were they discontinued, if they were? |
12 A They were. I don't recall exactly what date, i
13 Q Was it as a result of the decisions that were `
14 made at this meeting on November 17th, 1969?
15 A I don't recall.
16 Q Look on the third page under conclusions and
17 see whether that helps you refresh your recollection.
18 A All it says is introduce to market
19 replacement products.
20 Q The conclusion section.
21 A The conclusion? It says we should plan to
22 discontinue the manufacturing of 1254 and 1260.
23 Q It says the division is instructed to develop 24 a program to discontinue these products and report to 25 the committee then or the division, which is your
HARTOLDMONOOQ6235
52
division,* is that right? A It1s the organic division, Q It was to commence to develop a program to
4 discontinue the use of those? 5 A Right, 6 Q And did you so do that? 7 A Yes. 8 Q At that time did you give any instructions to 9 your people that worked for you to communicate this 10 information relative to the evidence of the possible 11 threat to certain species of bird and aquatic life to 12 your customers? 13 A Yes, We were going to notify all the 14 customers of the problem, 15 Q Did you do that? 16 A I believe we did, 17 Q Did you do it with respect to General 18 Electric? 19 A Yes, 20 Q At this time frame that we're dealing 21 with now, 1969, November,? 22 A Or shortly thereafter.
23 Q Now, look at the third page, again, please,
24 up at the top. There commenced to be listed 12 25 different types of conduct or activity that was to be
HARTOLDMON0006236
53
1 carried out? is that correct? 2 A Yes, a recommended pi an of action. 3 Q Did you make that recommended plan of action? 4 A I believe this was the outcome of the 5 meeting. 6 Q Now, was there someone appointed as project 7 manager? 8 A Yes. 9 Q Who was that? 10 A Bill Papageorge. 11 Q Was that when Mr.Papageorge first got his 12 official responsibilities with respect to PCB's? 13 A No, He had earlier responsibilities prior to 14 this meeting. 15 Q What were his earlier responsibilities? 16 A He was acting as a coordinator in 17 accumulating some of this information on the environment 18 and the testing programs, et cetera. 19 Q Did Mr. Papageorge, to yourknowledge, have 20 any contact at this time frame with General Electric 21 people? 22 A In the broad time frame, yes. 23 Q In the 1969 time frame? 24 A Yes. 25 Q Who at General Electric do you recall he may
HARTOLDMONOOQ6237
54
1 have had contact with? 2 A I'd say most of the key people there. 3 Q Can you give us any names? 4 A No, sir, I can't. 5 Q Do you know a Mr, Rabb? 6 A I recall the name. 7 Q Did you ever meet him? 8 A I might have. 9 Q Now, the second item is to notify all Aroclor 10 customer s of the PCB problem. That was done? 11 A I imagine it was. 12 Q Would it have been done for General Electric? 13 A Yes.
i
14 Q Now, does Aroclor, would that include
15 Pyranol? 16 A (Jh-huh. 17 Q Yes? 18 A Yes. 19 Q Look at No. 4. "Educate customers on need I
I
20 to reduce and effectively control PCB1s effluents at 21 their plants," What was done in order to carry out that 22 directive? 23 A We would have meetings with them and point 24 out what we knew about the problem and some of the 25 potential risks that could be involved and offer
HARTOLDMON0006238
55
1 suggestions as to some of the things that might be done 2 to minimize the emission into the environment.
3 Q What risks were discussed?
4 A Primarily, just the emissions into the 5 environment and the potential effects on wildlife. 6 Q Was there any discussion of a potential 7 harmful effect on humans? 8 A The question was raised, but we never had any 9 reason to believe that properly used, that it was a 10 serious human hazard, 11 Q How about if it was improperly used? 12 A Like many chemicals, if it's improperly used, 13 you can have some bad results. 14 Q Did you discuss at this time frame 15 vaporization of Pyranol? 16 A I don't recall. 17 Q But you went about having meetings. Would 18 that include General Electric? 19 A Yes. 20 Q Were they a largepurchaser ofAroclors? 21 A Yes. 22 Q Were they the largest purchaser of Aroclors 23 at Monsanto? 24 A They were certainly among the top four or 25 five.
HARTOLDMON0006239
56
1 Q Wellf who were the largest?
2 A I don't recall the specific order.
3 Q They were within the top four or five?
4 A Yes.
5 Q And within that same top four or five, would
6 we find Westinghouse?
7 A Yes, correct. 8 Q Who else?
i
9 A I don't recall.
10
Q Now, it says, "Develop and implement new
I
i
11 packagin g systems for Aroclor 1254/1260," What does thati
12 mean?
13 A I don't recall.
14 Q Was there a warning label of any nature
15 prepared at that time to be put on the packaging of
16 Aroclor 1254 and 1260?
17 A I don't recall.
18 Q Do you recall at some point in time the
19 preparation of a warning label to be put on the
20 packaging for 1254 and 1260?
21 Q I don't recall? 22 Q Do you ever recall seeing any warning labels,
23 Mr. Bergen?
24 A I can't specifically recall, no.
25 Q Do you know the colors, that yellow and
HARTOLDMON0006240
57
1 black? Have you eves seen yello and black labels placed 2 on drums or packaging of Aroclor 1254 or 1260? 3 A I may have. 4 Q You don't recall that? 5 A Not specifically. 6 Q Who would have been charged with the 7 responsibility for doing No. 5? 8 A Bill Papageorge would be coordinating that 9 with the plants and with the law department and sales 10 department. 11 Q How many of these items 1 through 12 would 12 have been Mr. Papageorge's responsibility? 13 A He would be involved in all of them from the 14 standpoint of coordinating and watching the plans and 15 the time tables and this sort of thing. 16 Q And seeing that the tasks were carried out? 17 A Yes; but then it was up to each department or 18 each function to do their thing. 19 Q And to your knowledge, he could check and 20 make sure that they were carried out? 21 A Yes. 22 Q Would he report to you if it was not? 23 A Yes, 24 Q Did he ever report toyou thatthese programs 25 were not being carried out?
HARTOLDMONOOQ6241
58
1 A Not to my knowledge. 2 Q Nowf No. 8, "Continue toxilogical test 3 program." Who would have the primary responsibility for 4 these tests in 1969? 5 A That would have been the medical department. 6 Q Dr. Kelly? 7 A Kelly and Wheeler. 8 Q Wheeler was a toxicologist? Is that what you 9 said? 10 A Yes. 11 I don't know what time George Rausch 12 got involved, but Dr. Rausch came aboard somewhere 13 around that time. He was partially involved. 14 Q Were you involved in the development of a 15 business plan for reclamation for the Pyranol? 16 A Again, that was people that reported to me, 17 yes. 18 Q Did Monsanto develop a reclamation program? 19 A It was never adapted. 20 Q Did Monsanto have an incineratorat the time 21 you left for Pyranol? 22 A Yes. 23 Q Did it burn Pyranol? 24 A It burden various Aroclors. It might have 25 burned Pyranol.
HARTOLDMONOOQ6242
59
1 Q Did it burn the Aroclor 1254 and 1260? 2 A I don't recall. 3 Q Down at the bottom of page three, there are 4 some more names. Minckler, who is Mr. Minckler? 5 A He became general manager, and he succeeded 6 Tom Smith, And he was general manager of the organic 7 division. 8 Q Now, were there minutes maintained of every 9 management committee meeting such as this? 10 A I believe so. 11 Q Who had the responsibility for preparation of 12 those minutes? 13 A I don't recall. 14 Q Were they circulated to all participants at 15 the meeting after they were prepared? 16 A I don't recall. 17 Q Do you recall seeing these minutes at an 18 earlier time? 19 A Yes. 20 Q When was the last time you saw these? 21 A Ten years or 12years. 22 Q How about in March of 1981? Do you recall 23 seeing them then? 24 A No, sir. 25 Q Do you recall your deposition being taken in
HARTOLDMONOOQ6243
60
March of 1981? A It was taken. Q In the -- A In the Outboard Marine Case, yes.
5 Q Do you recallseeing that? 6 A I don't recallt it might have been. 7 Q You haven't seen them since then, though? 8 A No. 9 Q Do you recall whether Mr. Papageorge was at 10 this meeting that's memoralized by Exhibit 4? 11 A I don't think he was. They usually were 12 pretty accurate as to who was present. 13 Q Did the lawyer prepare these? Was that his 14 responsibility, Mr. Harris? 15 A I don't know who prepared it. 16 Q Would you be kind enough, please, to look at 17 Exhibit 5? 18 A Okay. 19 Q Can you tell us what Exhibit 5 is? 20 A It a rough draft of a plan for managing the 21 PCB's problem dated March 30, 1970. It was put out for 22 comment of the various people that would participate in 23 putting the plan together. 24 Q Are those the people who were appointed to 25 the task force that was organized as a result of the
I
HARTOLDMONOOQ6244
61
1 meeting in November 1969? 2 A I don't recall the members of the task force. 3 Q There was a task force appointed, was there 4 not, as a result of the November 1969 meeting? 5 MR, BURKEs Objection, leading. 6 BY MR. BAUMERs 7 Q Was there a task force appointed? 8 A I don't recall the specific nomenclature. 9 There were various teams assigned different jobs because 10 there were two different business groups involved. 11 There were various staff groups involved, and that's why 12 Papageorge was appointed the project manager, to 13 coordinate all those things. 14 Q Look at Exhibit 4 again on the third page, 15 item one. It indicates there that he would be assisted 16 by a task force from members of each business group plus 17 medical, legal, engineering, and manufacturing. Was 18 such a task force appointed? 19 A I don't recall. 20 Q Now, the people who received Exhibit 5, you 21 had the list, did they all report to you that are listed 22 below you? 23 A No, they did not all report to me. 24 Q Is that group of people the task force? 25 A Whatever you wantto call it.
HARTOLDMONOOQ6245
62
1 Q I'm just trying to follow the nomenclature
2 that's in the documents that --
3 A It's a bunch of people that had varying
4 degrees of responsibility to carry out the plan.
5 Q Tell usr do all those people, did all those
6 people work for Monsanto?
7 A Yes
8 Q Mr. Farr ar, what was his job? 9 A Dr. Farr ar, he wa s in research , I believe he
10 was in charge of Pi asticizer research at that time.
11 John , I believe, wa s in publ ic relations. Kel ler, I'm
12 not cer tain what he was in.
13 Don 01 SO n was dir ector of marketing of my
14 gr ou Pt he was my di rector of marketing at that time.
15 Park was the legal counsel. Cumming Paton, he was a
1
16 plasticizer product manager. Bill Richard was my
17 director of research and development for the experiment i
!
18 group,
19 Jim Springaate was the business director of j
20 the plasticizer group, and Elmer Wheeler was industrial
21 toxicologist,
;
22 Q And who was Mr. Olson?
i
i
23
A He was the director of marketing for my
'
24 business group, the specialty products area, 25 Q Have you seen this document before?
: i
HARTOLDMONOOQ6246
63
1 A I don't recall it, specifically. 2 Q Do you have any recollection of receiving it? 3 A I imagine I did. 4 Q It is a document that you recognize as 5 being a Monsanto prepared document, is it not? 6 A Yes. 7 Q Did you attend the meeting that's referred to 8 in the second paragraph of the first page, April 2nd? 9 A I don't recall. 10 Q Did you review the management plan, the draft 11 that's attached and is a part of Exhibit 5? 12 A I imagine I did at the time. 13 Q Look at page four, if you would. One of the 14 items, page four, number four, "Develop reliable 15 analytical procedures for determining PCB content of 16 liquids, gases, or solids," Was that done? 17 A We spent a lot of time on analytical 18 procedures, and I don't know whether we addressed all 19 those areas in complete detail. 20 Q Was there a concern about PCB content in 21 gases? 22 A I don't recall. 23 0 Well, can you tell me why gases appears 24 there? 25 A I can't tell you that.
HARTOLDMONOOQ6247
64
1 Q Did Me, Papageorge prepare this draft?
2 A I assume so.
3 Q Look at page 10, Objectives, "Determine
4 effect of PCB's on birds, aquatic life, and humans." Do
5 you see that?
6 A Yes. .
I
i
7 Q The information that's contained in that
8 numbered paragraph, is that information that was
i
disseminated to customers of Monsanto? 9
| I
10 A I don't recall when the tests were completed. I
11 Do you want to repeat the question?
12 Q The information that's contained under the
13 objective that I just read, No. 7, it's contained on 14 that page and then on the succeeding page. Is that
i
15 information that was known as of the time this document
16 was written?
I
17 A Yes.
|
18 Q And is that the type of information that was j
19 communicated to customers of Monsanto who were
i
20 purchasing Pyranol or Aroclors? 21 A Well, it's a report, says it's a status
j |
22 report; and just when the information was made available I
23 to customers, I don't know.
j
24 Q Is that the type of information that was
25 known generally and circulated generally to the public
HARTOLDMONOOQ6248
65
1 and the news media?
i
!
2 A No. This is a very technical type of data and!
3 tended to be shared only with those that understood what '
4 you're talking about.
i
5 Q That would be your customers, would it not?
6 A Major customers.
7 Q Was General Electric a major customer?
8 A Yes.
'
i 9 Q So this is the type of information that would j
10 be shared with General Electric?
11 A Quite possibly.
i
Ii
12 Q Would that come under your responsibility or j
13 someone else1s?
j
14 A Only broadly. It would be more a function of ;
15 the medical and marketing, et cetera, departments to do
16 that.
17 Q You didn't conceal this type of information
18 from your customers, did you?
19 A No; but it's a question of how do you handle
20 and distribute it? When you discuss any medical things,
21 it's hard to do it through a layman; and you just don't
22 disseminate a lot of medical data, period.
23 Q Are you saying that Mosanto's medical people
24 would talk to, say, G. E.'s medical people?
25 A They might.
HARTOLDMONOOQ6249
66
1 Q Is that the way itwouldbe disseminated, to 2 your knowledge? 3 A Only if it was agreed upon that that was the 4 way to do it. 5 Q Do you recall how it was agreed upon in this 6 case? 7 A No, I don't, 8 Q Let me ask you, sir, tolook at Exhibit 6; 9 okay? 10 A Okay. 11 Q Tell us for the record what Exhibit 6 is. 12 A It's a memo dated April 7th, and it's a copy, 13 another draft copy, of a plan for managing the PCB 14 problem. 15 MR. BURKE: Could you give us the year, 16 Mr. Bergen, please? 17 THE WITNESS: April 7th, 1970. This is a 18 draft plan, and they're asking for further review at the 19 management level of the organic division. They wanted 20 their comment at this review meeting on April 10th. 21 BY MR. BAUMER: 22 Q And circulation was to a different group of 23 people other than yourself than Exhibit 5? is that 24 correct? 25 A That's correct.
HARTOLDMON0006250
67
1 Q This went to top management people? 2 A Of the organic division. 3 Q These are the same gentlemen who were at the 4 management meeting that we looked at in Exhibit 1, were l 5 they not? 6 A Some of them, but not all of them. 7 Q Excuse me, it wasn't Exhibit 1. It was 8 Exhibit 4 . 9 A Yes. Some were there, but not all of them, 10 Q Some of the people who received Exhibit 6 11 were present or there were more present at the meeting 12 memoralized by Exhibit 4 than received copies of 13 Exhibit 6? 14 MR. BURKE: Objection, leading. The 15 document speaks for itself. 16 THE WITNESS: I agree, the document 17 speaks for itself. 18 BY MR. BAUMER: 19 Q Unfortunately, Mr. Burke can only object, and 20 I get to ask the questions. 21 A What is your question? 22 Q I'm trying to find out, to clarify your 23 answer -- I'll just rephrase it. Maybe that will help. 24 The people mentioned on Exhibit 6, are these 25 members of the management committee?
HARTOLDMON0006251
63
1 A Again, I'm not aware of who the members of
2 the management committee are. These are the names of the
3 people that attended the CMC meeting that are within the I
4 organic division.
i
5 Q Where there management committee members
6 outside the organic division?
;
7 A NO.
i 8 Q Let's go back to Exhibit 6, now. This is, as ;
9 you say, another draft?
10 A That's correct.
11 Q Was there a final plan developed?
12 A I assume there was.
13 Q Do you recall ever seeing the final plan?
14 A I did. 15 Q You did at the time?
J
16
A Uh-huh. I don't know when it was dated.
,
17 Q Was it dated much after Exhibit 6?
18 A I imagine we developed a final plan for
19 presentation to CMC on April 20th, but it may have been ,
20 revised after that meeting,
!
21 Q Do you recall a meeting of the CMC after
22 April 20th where the plan was adopted?
23 A The final plan was eventually adopted, and I
24 don't know the date.
25 Q Was it in 1970?
HARTOLDMONOOQ6252
69
1 A I don't recall.
| l
2 Q Is your best estimate that it would have been
3 in 1970 based upon the current documents that you've
;
4 seen? 5A
.'
I don't recall.
i
.!
6 Q Look, please, if you would, at the objectives |
7 on numbered page 2, the third page, I think, page
8 numbered 2 at the top. Do you see Objectives on that
page? 9
|
10 A Yes.
| l
11
Q One of them has been deleted, and I don't
|
12 know for what reason. Do you know what objective that
13 might have been? Do you have any recollection of what
14 the number one objective was? 15 A I don't recall.
i i l j
i
16
Q
The objectives that are listed in paragraph
;
17 Roman Numeral III,Objectives, were those objectives '
18 contained in the final report?
i i
19 A I don't recall.
j
20
Q Do you recall whether the final report
21 contained an objective to inform the customers of the
22 PCB problem?
:
23
A I don't recall what the final report said,
;
24
Q Well, do you have any recollection that it
i
25 would not have contained a provision that the customer
HARTOLDMONOOQ6253
70
1 be informed?
2
A I feel certain that we had to inform our
;
3 customers eventually of our actions.
j
4 Q Well, we know you informed your customers,
5 don't we, back in late "71 or at least no later than the >
6 first part of January '72 when you sent the letter out ;
7 that contained the indemnity, don't we?
8 MR. BURKE: Objection,leading.
9 THE WITNESS: That's correct.
1
i
, i
10 BY MR. BAUMBR:
11 Q Would you look at what has been marked
12 Exhibit 7?
13 A I have to leave right after this one.
;
14 Q What is Exhibit 7?
!
15
A It's a memo that I apparently wrote to
!
16 Mr. Tom Gossage dated February 14th, 1972. The subject '
17 is Marketing Price For PCB Incineration And Pydraul
18 Incineration Rebate Allowances On New Pydraul Series
19 Purchases.
20 Q This is a document that you prepared
21 yourself ?
22 A Yes.
23 Q Who is Mr. Gossage?
24 A He succeeded Mr. 01 son, and at this time
25 Mr. Gossage was the director of marketing for this
HARTOLDMONOOQ6254
71
1 business group, specialty chemicals, 2 Q And who are the gentlemen that received 3 copies? 4 A Bradford was the industrial fluids product 5 manager handling the fluid that went to, the Pydraul 6 that went to the dye casting fluids, et cetera, 7 Norm Johnson was the national sales manager, 8 Jim Savage was the manufacturing manager for our group. 9 Art Koenig was the comptroller for our group, 10 Q Back in '72, was Monsanto incinerating 11 Pyranols? 12 A We were doing it experimentally. 13 Q Okay. 14 MR, ROBERTO: I'm afraid Mr. Bergen does 15 have to go. We will be more than happy to cooperate 16 with you to reschedule, to do it by telephone, 17 MR. BAUMER: Let me put this on the 18 record. I first learned that Mr. Bergen was not going 19 to be able to continue here today when the deposition 20 commenced at 10:30. I was unaware of that until that 21 time when it was announced by Mr. Bergen that he had to 22 leave for an emergency? is that correct? 23 THE WITNESS: That's correct, 24 MR, BAUMER: And so if you have to leave, 25 you have to leave. I can't keep you here. We will
HARTOLDMONOOQ6255
72
1 arrange another time and send you another subpoena. But 2 let me suggest to you that next time -- we both have come 3 a long way| I've come from Jacksonville, and Mr. Burke 4 has come from Orlando. 5 As you can see, there are a substantial 6 number of documents that you have to look at; and it's 7 going to take at least a day to conclude your 8 deposition. We thought we would do it today, but it 9 will take at least a day. So the next time we set it, 10 if there are going to be any emergencies come up, you 11 need to let us know so that we can reschedule it at a 12 convenient time. 13 We don't want to send you a subpoena and 14 require you to be here. We're trying to work with you 15 to schedule this, and we appreciate your coming. But 16 you, otherwise, have to understand we have schedules, 17 also; and it's expensive for us to come around and move 18 about. 19 So the next time we set this, we would expect 20 to be able to conclude it at that time; and perhaps next 21 time we'll start early in the morning so we can finish 22 it in one day. But as you can see, there are a lot of 23 documents that you're going to be asked about. 24 THE WITNESS: I'm usually at work at 7:00 25 o' clock, so we can start at 7:00.
HARTOLDMONOOQ6256
73
1 MR. BAUMERt We will start early next 2 time; and with that, we will discontinue the deposition 3 and continue it to be noticed at a later date. But it 4 will be soon, 5 THE WITNESS: That's fine. 6 MR, ROBERTO: We apologize for the 7 inconvenience. Mr. Posner represented to 8 Mr. Bergen that this would be a short deposition, and we 9 would have called you last night when the emergency came 10 up. We are more than willing to cooperate, You don't 11 need to notice him. We'11 even make a conference room 12 at Georgia-Pacific available so that everybody can be 13 accommodated. 14 MR. BAUMER: We will renotice it, but we 15 will call you first; and we will go through all the 16 formalities for the record anyway at that time. And 17 we'll probably will take it right back over here next 18 time. 19 MR. BURKE: I would like to state on the 20 record, please give the reporter a copy of Mr. Bergen's 21 response to Mr. Baumer's Notice of Deposition. Would 22 you attach that to the deposition as Defendant's 23 Exhibit 1, and attach a copy of this Notice as Defendant' 24 Exhibit 2 for me, please. Thank you. 25
HARTOLDMON0006257
74
1 (Thereupon* the court reporter 2 marked Defendant's Exhibits 1 3 and 2 for identification.) 4 MR* BAUMERi One more question for the 5 record. 6 BY MR. BAUMERs 7 Q Have you discussed this matter or this 8 lawsuit with Mr, Burke prior to today? 9 A He called me just like Mr. Posner called 10 me and just told me that he would be here* and that's 11 all. 12 MR. BAUMER: Thank you. The deposition 13 is adjourned. 14 (Deposition adjourned.) 15 16 17 18 19 20 21 22 23 24 25
HARTOLDMON0006258
75
I
2
3
4
5
6
7
HOWARD S. BERGEN
I
|
8 I hereby certify that I have !
read or have had read to me
9 the foregoing.
10
11 Sworn to and subscribed before me
12 thisday of,1985 .
13 Notary Public.
14 My Commission expires
15
16
17
18
19
20 \ 21
22
23
24
25
HARTOLDMONOOQ6259
76
1 CERTIFICATE
2 GEORGIA!
3 FULTON COUNTY!
4 I hereby certify that the foregoing
5 deposition was taken down, as stated in the
6 caption, and the questions and the answers
7 thereto were reduced to typewriting under
8 my direction; that the foregoing pages 1
9 through 75 represent a true and correct
10 transcript of the evidence given upon said
11 hearing, and I further certify that I am
12 not of kin or counsel to the parties in the
13 case; am not in the regular employ of counsel
14 for any of said parties; nor am I in anywise
15 interested in the result of said case,
16 This, the 1st day of February, 1986.
17
18
19
20
21 22nd day of September, i.yay
22
23
24
25
HARTOLDMON0006260