Document GK4y7Gjx0bgmxqVxMpX8MpwJY

1 2 WITNESSES: INDEX 3 DR. RAYMOND SUSKIND I 4 Continued Cross Examination byMr . C a r r ...................................... 7 5 6 7 EXHIBITS: 8 Plaintiff fs 1748 9 Plaintiff* s 1749 10 Plaintiff s 1750 11 Plaintiff* s 1751 12 Plaintiff* s 1752 13 'Marked 7 14 14 34 77 Offered 17 14 14 35 80 Admi tted 20 16 16 35 80 14 IN CHAMBERS CONFERENCES HELD ON PAGES 2 AND 66 15 16 17 18 19 20 21 22 23 24 25 1 BE IT REMEMBERED AND CERTIFIED, that heretofore, 2 on to-wit: March 4, 1986, the matter as hereinbefore set 3 forth came on for hearing before the Honorable Richard P. 4 Goldenhersh. Circuit Judge, Twentieth Judicial Circuit, State 5 of Illinois, and the following was had of record, to-wit: 6 #* * * #* 7 (The following conference was held 8 in chamber s . ) 9 THE COURT: I have just one thing I want to take 10 up and basically let you know about, and I tried to call your 11 office yesterday after Court, and either your line was busy 12 or no one answered or something. I got a hold of Mr. C a r r 's 13 office. Apparently your office has filed a suit against a 14 brother-in-law of one of the jurors. I d o n 't know what the 15 nature of the suit is or anything, it is Barbara M c C a n n 's 16 brother-in-law, it is a guy named Steve Arnold who lives in 17 Maryville, and he runs a Derby gas station in Washington 18 Park, which is in this county. And I d o n 't know what kind of 19 suit it is or anything, but apparently they have filed a suit 20 against him. and I wanted to let you gentlemen know so you 21 could decide what you want to do about it. 22 MR. CARR: After you left the message, I cal led 23 Korein last night and we have not filed a suit against him, 24 there's been a suit been on file for sometime against the 25 Derby Oil Company. He is the dealer that operates the 1 station that's involved. Apparent 1y some kind of a defective 2 tank, and the gasoline leaked out or something. I don* t know 3 the details of it. The Derby Oil Company is being sued, 4 Arnold is not. But last week, I think they said last week, 5 the deposition of Steve Arnold was taken by the office, by 6 Hr. Bogard, and that may be where the juror, so far as l 7 know, so far as I have been told at least, he is not a third 8 party defendant. He is a dealer for Derby and he may be 9 identifying with Derby and he may have told Mrs. McCann that 10 he is being sued, when in fact it is Derby being s u e d . But 11 he is not a party to the suit, at least at this point in 12 time., And my thought is that if the juror thought it was 13 serious enough to report to the Court, then I think it is 14 serious enough that the Court ought to inquire of her, 15 determine whether or not that has prejudiced her against the 16 clients that 1 represent, before we can make a decision 17 about anything else to do. If she states that it has 18 prejudiced her, why, we would have to decide what to do at 19 that time. But if she states that it hasn't prejudiced h e r , 20 then it would be of no consequence and nothing should be done 21 about it. But I think the Court will have to voir dire her 22 to find out how it has affected her, if it has affected her 23 at all. 24 THE COURT: What do you gentlemen think about 25 that, or do you have any thoughts on it? j3 1 MR. HE INEMAN : Well, I'd like to, before I 2 respond to that, I'd like to talk to Mr. Nassif privately for 3 a minute, if I could. Could we step into a room over here? 4 THE COURT: Sure. 5 MR. NASSIF: Judge, I guess she raised this with 6 you? 7 THE COURT: She let Marlene know, pursuant to my 8 instructions that anything is to be reported to the bailiff 9 and reported to me, and I didn't get all the information 10 until after Court last night, which is why I tried to get a 11 hold of all of you. 12 MR. HEINEMAN: Insofar as our response is 13 concerned, I'm sure the Court is aware that we have a Motion 14 before the Court right now with respect to conducting of voir 15 dire of the Jury in connection with certain publications. We 16 have made previous requests of the Court to voir dire the 17 Jury for various reasons which are set forth in the record at 18 the time those requests were made. 19 THE COURT: I believe those others have also been 20 matters that are media related. I think that there was a 21 request, for example, for a New York Times magazine article 22 that was done about Mr. Carr. I think your requests for voir 23 dire have all been media related. 24 MR. HEINEMAN: I think there was one, if I am not 25 mistaken, with respect to the approach made on Rosemary 4 1 Stacker by a person who was alleged to have been a Monsanto 2 e m p 1o y e e . 3 THE COURT: I did talk to Miss Stacker at that 4 time. I think I refused to talk to the rest of the Jury, 5 refused the Motion asfar as the rest of the Jury. 6 MR. CARR: I dan't think you asked a Motion for 7 the rest of the Jury. What happened was that you had 8 inquired of the juror before, out of our presence, and before 9 we had--we knew about it, you had, it had been reported to 10 you and you conducted your own investigation at that time, 11 and then reported to us about what was done and counsel for 12 Monsanto said at that time if there is any ci rcumstances like 13 that occurs again, they didn't object to it at that time 14 because it was already done. But if it occurs again, 15 however, we want the voir dire to be in c o u n s e l 's presence. 16 And that's the circumstances there. There was no request by 17 anybody that the Jury be voir dired, it was just you had 18 already asked a question of Miss Stacker and counsel said in 19 the future they wanted to be in on any such-20 MR. HE IN E M A N : That's not my recollection of it, 21 Judge. I know that we requested that other jurors be 22 examined because we were concerned about the fact that she 23 may have told other jurors about it. I think there was one 24 juror who is no longer on the jury right now, Barbara 25 Stanley, who evidenced that she knew something about it or 5 1 had been told about it. And we had asked that the Jury be 2 voir dired on it and that was-3 THE COURTi I think I talked to Miss Stacker, and 4 I think I talked to Stanley, and that was it. I don't 5 remember if there was a Motion made to talk to others or not. 6 I know I didn't talk to any other members on the Jury. 7 MR. HE INEMAN i In addition to that, we did ask to 8 be present at the time the voir dire was conducted, and that 9 was refused. 10 MR. CARR: No. 11 MR. HE INEMAN : I frankly believe that. I 12 frankly believe that a voir dire should be conducted of this 13 juror, Mrs. McCann. And it is consistsent with our position 14 with respect to occas ions when we thought it should be 15 conducted on our behalf. 16 In addition to tha t , I think that counse 1 should 17 be allowed to be present at that voir dire with an option to 18 question the juror after the Court concludes questioning the 19 juror and would request that we be allowed to do that. 20 THE COURT: Do you have any objection? 21 MR. CARR: Yes, your Honor. Our position would 22 be that it is appropriate for counsel to be present, under 23 these circumstances. But 1 d o n 't think it would be 24 appropriate for.counsel to ask questions. I think we should 25 be allowed to suggest questions to you, and we followed this 6 1 tac k , if the Court recalled when we selected the jury to 2 start with and we brought them back here into the Court's 3 chambers to inqire into these matters, and I think we should 4 be allowed to suggest questions to you, but I think at this 5 point in time for us to h a v e , that is, for c o u n s e 1 to have 6 any contact with the jurors directly c o u 1d have devastating 7 consequences, either Mr. Heineman or myself could ask a 8 question that the juror might think is inappropriate, and 9 could result in a mistrial, could result in a problem that 10 the Jury cou Id s a y , cou 1d have an outburst against Mr,. 11 Heineman or against me that could cause that juror to be 12 excused or that juror to be excused without a question, not 13 necessarily mistrial, but to excuse that juror. 14 THE COURT: Let me think about the procedure, 15 what I'd like in the meantime is more information on the 16 suit, and if it is filed here, the cause number, and if not, a 17 copy of the complaint at least so that I can tell this juror 18 that I have reviewed and I can speak from some basis of 19 authority as to what the suit entails. 20 MR. CARR: it is filed here. 21 THE COURT: Oh, good. 22 MR. CARR: The filling station is in Washington 23 Park. 24 THE COURT: Fine. If you could get me the cause 25 number and I will pull the file and review it, and then 7 1 decide how I will approach the juror, since both of you agree 2 with the concept of a voir dire. It is a question of how it 3 is to be conducted. We will have voir dired the juror after 4 I decide how it is to be c o nducted, and after I have had a 5 chance to review, to pull the file and review it. 6 MR. CARRi Okay, I can cal 1 and get that number 7 right away. 8 THE C O U R T S Since we are going to have our d r i 11 9 in four minutes, we might as w e l 1 make the cal 1 and go from 10 t h e r e . n (The following proceedings were held 12 in open C o u r t . ) 13 THE COURT: Good morning. We have had our m i d 14 morning walk. We will proceed. Mr. Carr? 15 CONTINUED CROSS EXAMINATION 16 BY MR. CARR 17 (Plaintiff's Exhibit No. 1748 was 18 marked for identification.) 19 Q Handing you Plaintiff's Exhibit 1747, which has 20 been previously admitted into evidence, and Plaintiff's 21 Exhibit 1748. Doctor, I'd like for you to verify, if you 22 will, the correctness of the life expectancy for each of 23 these. First of all, you recognize these as the same 24 eleven--no, I'm sorry, fourteen, thirteen persons who were 25 part of the original thirty-six examined in '53, but who were 8 1 dead by the time the 1979 examination came around from natural 2 causes, do you not, sir? 3 A Yes, sir, t h a t rs what you stated. 4 Q I1m sorry? 5 A I said that*s what you stated. 6 Q. Now, Doctor, I know it is what I stated, but what 7 I want from you is agreement that these thirteen people are 8 in fact the thirteen deaths from natural causes which you 9 have seen the death certificates for yesterday that were 10 part of the original thirty-six examined in 1953. 11 A I have. 12 Q And they are, are they not, sir? 13 A They are. 14 Q Y e s . Now, D o c t o r , I would also like for you to 15 check the--using the life table, Exhibit 1747, and that's in 16 front of you, and verify that the life expectancies put in 17 Exhibit 1748 are correct according to that table for the 18 persons named. 19 A No, sir, I cannot do th a t . 20 a D o c t o r , do you have the tab le in f ront of you? 21 A I do, indeed. But I would have to know the 22 source of it. 23 Q. Doctor, the Judge is the judge of the validity of 24 the table. The Court has ruled the table valid. I would 25 like for you to do as I asked you to do, please, sir. 9 1 MR. HEINEMAN: Objection, your Honor. May 2 counsel approach the bench? 3 THE COURT! Yes, you may. 4 (The following conference was held 5 at the b e n c h .> 6 MR. HEINEMAN! Your Honor, that statement is just 7 the kind of stuff that I have been complaining about before, 8 what Mr. Carr is doing here. He has no right to say to that 9 jury that you have found this exhibit valid, because that 10 isn't at all what you have found. You have taken judicial' 11 notice of it, period. And that's all you *ve d o n e . And I 12 might say over my objection, because we do not have the 13 source of this document in the courtroom. Neither you nor I, 14 or I assume Mr, Carr does, but neither you nor I has any idea 15 of where this information comes from. And therefore, 1 renew 16 my objection to it, and it is improper for Mr. Carr to inform 17 this witness that you have ruled that this is valid 18 information, because you haven't ruled t h a t . 19 MR. CARR: First of all, your Honor, you have 20 ruled that it is valid. He says he can't use it, because he 21 doesn't know the source. I've asked him to use it as an item 22 that's in evidence, whether it is the worst item or whether 23 it is the best item, it is not for him to decide. The Court 24 has made that decision. If the Court is wrong, the Court is 25 wrong. He is not an appellate judge over you. The source of 10 1 the table is identified in the table. It is the Public 2 Health Service of the United States government. It is 3 identified, cou n s e 1, and the Court has taken judicial notice 4 that this is a valid life expectancy table that can be used 5 in this case and admitted into evidence, and counsel knows 6 that has been done, and his objection is not proper. 7 THE COURT: I think that by taking judicial 8 notice of it, I have given ratification to its validity based 9 on its nature, so it can be used. It is not this witness' 10 province to decide the question that he has posed. Perhaps 11 the way around this wouId be that he is to assume its 12 validity and answer the questions on the basis of that, since 13 I have allowed it into evidence on the basis of judicial 14 notice. I think that your remark was correct. I think that 15 maybe the practical way around it as far as using it is 16 concerned. Your renewed objection and your objection at the 17 remark are both continuing. 18 (The following proceedings were 19 held in open Court.) 20 BY MR. CARR: 21 Q. Now, Dr. Suskind, if you wi 11 now assume, please, 22 that this is an appropriate table to use, appropriate life 23 expectancy table to use, and with that assumption, please, 24 verify, sir, the life expectancies set out in 1748 is that 25 which are reflected by the life expectancy table that is 11 1 Plaintiff's Exhibit 1747. 2 A I cannot do that un.t 11 I calculate it mysel f , 3 sir. 4 Q T h a t 's what I am asking you to do, Dr. Suskind. 5 A I have difficulty as a scientist to be using this 6 kind of a tab 1e . 7 MR. CARR: Your Honor, the witness-8 THE COURT: Doctor, it is appropriate to use it. 9 P 1ease use it. The matter that you posed is something that I 10 have ruled upon as far as its appropriate use in this 11 courtroom and this trial. I've ruled its use is appropriate, 12 so please proceed on that basis and use it. 13 Q. And, Doctor, if you will, t h a t 's an original 14 Exhibit 1748, and please d o n 't mark on it. If you want to 15 make markings, I can give you another copy if you want to 16 make markings on another copy. 17 A May I ask a question about the first col u m n , sir? 18 The age is what? What does that represent? 19 Q T h a t 's the age given in the report that you made 20 in 1953 at the time you examined these men. 21 A May I ask another question about the table, sir? 22 THE COURT: Doctor, Just use the table, please. 23 A I n e e d a n e x p l a n a t ion for the--we start in 1953 24 and this table is as of 1950, sir.. So there is a three year 25 differ e n c e . 12 1 THE COURT : Right, I understand that. Tha t 's been 2 part of my consideration. Use it, please. 3 Q D o c t o r , and on that point, life expectancies 4 increase as modern civilization advances, does it not? 5 A Well, I haven't seen the figures for '53, sir. I 6 can't tell you. 7 Q Excuse me, Doctor. Do'you know as a scientist 8 that the life expectancy today is greater or longer than the 9 life expectancy for the people in 1950, you know tha t , don't 10 you, sir? 11 A Well, it would be different between '50 and '53. 12 I can't tell you, sir. 13 Q Doctor, could you please answer this question? 14 You do know that life expectancies are expanding, or 15 lengthening with the passage of time because of better 16 medical care, better health, better nutrition all the way 17 around. You are aware of that, aren't you, sir? 18 A It has been over the last twenty years, sir. 19 Q And I have here a life expectancy tab le for 1959, 20 sir, if you want to see it. You will see that it has a 21 greater life expectancy than the 1950 table. I have one for 22 1976, it shows a greater life expectancy than the 1959 table. 23 You are aware of that, aren't you, sir? 24 MR. HE INEMANi Objection, your Honor. May we 25 approach the bench? 13 1 THE C O U R T Yes, you may. 2 (The following conference was 3 held at the bench.) 4 M R . HE IN E M A N : Here we have another speech by M r . 5 Carr with respect to purported evidence that he claims he has 6 in his possession. He's asking this wi tness about--there is 7 no evidentiary basis for the s t atement. It is something 8 that he is just making a speech to the Jury about in order to 9 support his point about increased longevity in more recent 10 y e a r s , and I object to it. I ask that the speech be stricken 11 and l ask that the Jury be instructed to disregard it. 12 MR. CARR: Your Honor, the witness had absolutely 13 no right to make the statement that he m a d e . 11 was u n c a 1 led 14 for. It had nothing to do--he was asked to do a function, a 15 simple function of looking at a tab 1e and compar in g . He 16 wasn't asked to comment on the validity, whether or not there 17 is a longer or lesser life expectancy in '53 than there was 18 in '5 3 . The Court can certainly take judicial notice of the 19 fact that life expectancies have increased and lengthened 20 over the passage of time. It is common know ledge, and my 21 remark was called for in view of Dr. Suskind's unsolicited 22 improper s t a t ement. 23 THE COURT: I'm afraid it was, but I think you 24 should probably produce those tables so they can be put into 25 evidence and upon my review, if I feel it appropriate to take 14 1 judicial notice, so that they appear on the record and there 2 is an evidentary basis. And I think that w i 1! take care of 3 any problem .that existed in the r emarks, if you cou Id bring 4 those up to the bench, we will take care of it now. 5 (Plaintiff's Exhibits 1749 and 6 1750 were marked for identification.) 7 MR. CARR: Your Honor, there is already in 8 evidence a life expectancy tab 1e that we used for Dr. 9 Grossman. I think it is a 19--I don't recall what year it 10 is. I think it is a 1979 table, 1 am not absolutely sure of 11 t h a t . Anyway, whatever the number is, I don't have it 12 immediately available. But I am now offering and with leave 13 to withdraw, as soon as the Court is satisfied, Plaintiff's 14 Exhibit 1749, which is a U.S. life table for 1976, and .15 Plaintiff's Exhibit 1750, which is a U.S. life table for 1959 16 to support my statement that life expectancy as compared to 17 the 1950 table is increasing rather than decreasing. 18 (Plaintiff's Exhibits 1749 and 19 1750 were offered into evidence.) 20 MR. HE1NEMAN: Your Honor, of course we would 21 object to these as being hearsay. They are not authoritative 22 documents, and we would object to the Court taking judicial 23 notice of them. Primarily I would certainly object to the 24 Court permitting Mr. Carr to withdraw them once they have 25 been admitted into evidence. 15 1 MR. CARR: We will leave a copy of the cover page 2 and the appropriate page. 3 THE COURT: That will be fine. 4 MR. HEINEMAN: But who knows how much of that 5 document is relevant to the portion which is being referred 6 to with the witness, and we wouId like, if the Court is going 7 to put any of it in, the Court ought to put all of it in and 8 leave it in so that it can be used on redirect examlnation 9 with the witness. 10 M R . C A R R : I'll certainly leave it here long 11 enough for counsel to use it. I will be glad, to make copies 12 of the entire document and put it in, but those are original 13 exhibits that I have used in m a n y , many cases where the 14 Courts have taken judicial notice of these tables, and I 15 certainly don't want to leave them here for years. 16 THE COURT: Why don't you make copies of both in 17 their entirety and that will be fine, and I will take 18 judicial notice of both of them and they are both admitted 19 into evidence. 20 21 22 23 24 BY MR. CARR: (Plaintiff's Exhibits 17A9 and 1750 were admitted into evidence.) (The following proceedings were held in open C o u r t . ) 25 Q. Are you finished, Doctor? 16 1A 2Q 3 correct? 4A I believe I am, sir. And, Doctor, are the figures for the expectancy The figures as figured from this tab 1e are, y e s . 5 MR. CARR: Your Honor, now I'd like to offer 6 Plaintiff's Exhibit 1748 into evidence, if it please the 7 Court. 8 (Plaintiff's Exhibit 1748 was 9 offered into evidence.) 10 THE C O U R T : Any objections, gentlemen? 11 MR. HEINEMAN: Your Honor, we would object to it 12 on, well, may we approach the bench? 13 THE COURT: Sure. 14 (The following conference was 15 held at the ben c h . ) 16 MR. HEINEMAN: First of all, we object to it 17 because it contains the same stuff that's in Exhibit 1746, 18 which we previously objected to and which is inadmissible. 19 THE COURT: Right. 20 MR. HEINEMAN: To the extent that it includes 21 information from Exhibit 1747-- 22 THE COURT: The life table. 23 MR. HEINEMAN: The life table, to the extent it 24 includes information from 1747, we've objected to the 25 admissibility of that information. We'd like to preserve 17 1 that objection at this time, 2 THE COURT: Of course. 3 MR. HE IN E M A N : And I think the type of 4 c a 1c u 1ation which the Doctor's been asked to make, we believe 5 is not possible from the information that's been provided to 6 him, and we would object to it on that basis as well, and I 7 wouId ask that my objection be a continuing objection with 8 respect to any examination of the witness, as to the content 9 of any of these three documents, 1746, 47, and 48, as well as 10 49 and 50. 11 MR. CARR: The purpose is for i 1lustration, 12 illustrative purposes pr imar ily to show the various life 13 expectancies of these workers as a part of the plan that I 14 have, and shown in the beginning to demonstrate to the Jury 15 and to Dr. Suskind the fate of the thirty-six people that he 16 said should be re-examined and re-studied in his letter that 17 we referred to earlier. 18 THE COURT: I will admit 1748 over objection. I 19 wi 11-- I think that you have properly preserved your prior 20 objections as to the materials that were used to compile--as 21 part of the compilation of 1748, and for purposes of economy, 22 I will note that it is a continuing objecti on to 1748. 23 While you're up here, I know that this happened 24 again this morning. It seems to be a recurring pattern with 25 this witness that he volunteers or says something which he 18 1 isn't supposed to do which I've told him not to do, which 2 I've asked you to tell him not to do, and he seems to put Mr. 3 Carr in a position that he feels in his professional judgment 4 he has to say something or do something which after he says 5 something or does something, and then he goes on with the 6 questioning, gets an objection from you. I think that's a 7 very disturbing pattern. It indicates that your admonitions 8 of him seem to be of no effect, and my admonitions seem to be 9 of no effect. And on top of that, it is bootstrapping an 10 objection that shouldn't have happened that happened in 11 response of something that shouldn't have happened, and this 12 should not happen. I don't want to see it o c c u r . 13 MR. HE IN E M A N : Your Honor, with respect to the 14 questions which Dr. Suskind asked about the exhibit, he was, 15 in my view, perfectly entitled to ask questions about what 16 those figures represented s ince he didn't put them on there. 17 These are figures that Mr. Carr put on there. 18 THE CQURTi That's not the one I'm referring to. 19 After I made it perfectly clear to him that they had been 20 accepted by this Court with sufficient validity to be used 21 and continuing with this question, it was the source of the 22 comments which inspired your objection and Mr. C a r r 's 23 comments, not the questions, as far as the ages in that first 24 column, that was a very simple housekeeping question which 25 was answered in about four words from Mr. Carr as to which 19 1 there was no problem. I think it is perfectly clear as to 2 what I am talking about, and 1 don't want to see it recur. 3 (The following proceedings were 4 held in open C o u r t . ) 5 MR. C A R R : Your Honor, may we pass the exhibit to 6 the Jury? 7 THE COURT* Yes. It's been admitted. You may 8 pass it to the Jury. 9 (Plaintiff's Exhibit 1748 was 10 admitted into e v i d e n c e . ) 11 Q Dr. Suskind, the exhibit refers to the workers 12 who were part of the workers who were not examined in 1979, 13 but who were part of the 36, group of 36 that you had 14 examined in *53, and the first of those workers on this list 15 is James Asbury, is he not, sir? 16 A It is . 17 Q. And this exhibit and the death certificates in 18 evidence showed that he died at the age of 54, does it not, 19 sir? 20 A Y e s , sir. 21 Q And he diedof cancer, isn't thatcorrect, sir? 22 A Y e s , sir. 23 Q And according to thelifeexpectancy table in 24 evidence, he had a--in 1953 he had a life expectancy of 25 nearly 36 years, correct, sir? 20 1 A No, sir. 2 Q Doctor, didn't you tell me that the population 3 with regard to life expectancy was correct according to the 4 life expectancy table in evidence? 5 A If you are considering-6 Q Doctor, could you answer that question, please, 7 sir. 8 A Yes, if you are considering cancer-9 Q Doctor, could you answer that question, please? 10 A Y e s , I h a v e . 11 Q All right. And according to the calculation, 12 using that table, that table shows that he had a life 13 expectancy in 1953 of nearly 36 y e a r s , isn't that correct, 14 sir? 15 A N o , sir. 16 Q Sir? 17 A N o , sir. 18 Q Isn't the calculation on this exhibit correct, 19 sir? 20 A N o , sir. 21 Q Didn't you just- tel 1 me the c a l c u 1ation was 22 correct? 23 A The calculation according to that table. 24 Q That's what I am asking you, Doctor. Did you 25 think I was asking about some other table? I'm asking you 21 1 about the table in evidence, that the Court put into 2 evidence, Doctor, and would you conf ine your attention to 3 that, please? According to that table, this calculation is 4 correct, is it not, sir? 5 A The table can't be used for this purpose, sir. 6 THE COURT: Doctor-7 A Y e s , sir. 8 THE C O U R T : That answer was not responsive to the 9 question. Answer the question. 10 THE WITNESS: Your Honor, in this instance-11 THE C O U R T : D o c t o r , I don't want an exp 1anation, 12 l want you to answer the question as I've ordered you to. 13 A Using this table, the life expectancy is 14 accurate, according to this figure, yes, sir. 15 Q And, Doctor, according to that table then, his 16 death in 1972, according to that table, his life expectancy 17 would have been an additional 17 y e a r s , would it not? 18 A N o , s ir . 19 Q, Now, Doctor, accordingto that table, did he have 20 a life expectancy of 36 years in 1953? 21 A According to thattable, sir." 22 Q And according to the table in evidence showed 23 that in 1953, if he 1ived his 1ife expectancy, according to 24 that table, he would live to the age of 71, isn't that 25 correct, sir? 22 1 A I d o n 't k n o w , sir. 2 Q I'm sorry? 3 A I don* t know. 4 Q Doctor, are you 1istening to the question? 5 A Yes, 1 am, sir. 6 Q And that table, his life expectancy, according to 7 that table, that 1950 table was 36 years in 1953, was it not, 8 siri 9 A According to that table. 10 Q All right. Now, t h a t rs what I am asking you, 11 Doctor. Keep that in mind. Thirty-six added to his age at 12 that time w o u 1d mean 71, wouldn't it, sir? 13 A I wouId, if you did it that way, y e s , sir. 14 Q Well, that's the way we are doing it, Dr. 15 Suskind. Now, you understand the Judge is the judge of the 16 proper way to do it and not you, do you understand that, Dr. 17 Suskind? 18 A Y e s . 19 Q And please go along with what the Judge says is 20 proper in this case, would you do that, sir? 21 A I will try my best to do that', sir. 22 Q All right. So I don't have to go- back to this 23 again. All right, Doctor, according to that table, he lived, 24 according to the death certificate in evidence, he died at 25 the age of 54, correct, sir? 23 1 A Yes , sir. 2 Q And 54 subtracted from '71 is 17, isn't it, sir? 3 A Yes, it is, sir. 4 Q And that's reflected in the column to the right5 hand side of the page, isn't it, sir? 6 A As I read it, sir, yes. 7 Q And M r . Bailey, in 1953, according to that tab le 8 he had a life expectancy of 42 years, did he not, sir? 9 A According to that tab le, sir. 10 Q, He died just 17 years later after his 11 examination, didn't he, sir, at the age of 48, according to 12 the death certificate in evidence. 13 A Y e s , sir. 14 Q And his 1ife expectancy then was a minus 21 15 years, according to the table in evidence, wasn't it, sir? 16 A A person who was of that age, a person who was 17 that age might be expected to live for 42 years more, is that 18 what you are saying, sir? 19 Q That's what I am saying, Doctor. 20 A A person of that age, right. 21 Q T h a t 's correct, Doctor. 22 A No matter what kind of disease he had. 23 Q That's correct, Doctor. 24 A Okay. 25 Q And, of course, you understand, don't you, 24 ] Doctor, that life expectancy tables are just averages based 2 upon the total population that some people live longer than 3 that and some people live less long than that, you understand 4 that? 5 A The 1ife expectancy table-6 Q Excuse me, Doctor. Would you answer that 7 quest ion? 8 A It also takes into consideration-9 Q D o c t o r , couId you please answer the quest ion that 10 I asked? I didn't ask you what it also takes into 11 cons ideration. Mr. He ineman can ask you that question if you 12 want him to. But I'm asking you the quest ions that I am 13 asking you, do you understand that, sir? 14 A Y e s , sir. 15 Q And, Doctor, Mr. Dent who died of cancer at the 16 age of 53, accord ing to the life expectancy table in 17 evidence, he had, a person like him had another 19 years to 18 live, isn't that correct, sir, according to the tab 1e in 19 ev idence? 20 A According to the table in evidence, a person aged 21 49 w o u 1d have that life expectancy. 22 Q Yes. And, Doctor, as far as Harris is concerned, 23 that's another 29 -year-old person that died, he died at the 24 age of 49, did he not, sir? 25 A Yes, he did. 25 1 Q Of cancer? 2 A He did. 3 Q And thelife expectancy table applied to aperson 4 like Mr. Harris would have given him an add it iona 1 twenty 5 years to live, would it not, sir? 6 A A person who was-- 7 Q Doctor, could you answer the question that I gave 8 to you? 9 A Yes, sir. I am attempting to answer that, sir. 10 Q A n d , D o c t o r , M r . Hoffman, a 2 8 -year-oId person 11 that died at the age of 48 of a heart a t t a c k , he had a 40 and 12 a half year life expectancy, according to the table in 1953, 13 did he not, sir? 14 A A person of that age would. 15 Q Doctor,could youanswer the question theway I 16 framed it without giving me your add-on speech to it, sir? 17 A Yes, sir. 18 Q Thank you. And, Doctor, that's a minus twenty 19 years for him, isn't it, sir? 20 A That's what it reads in the table, sir. 21 Q And Barry Hudnall, now, he died at age 75, he had 22 a life expectancy of thirteen years at the time he was 23 examined in 1953 and he indeed lived his life expectancy, 24 minus one year, did he not, sir? 25 A That's what the table reads, sir, yes, sir. 26 1 Q, And, M r . Kyle, 3 5 - y e a r - o 1d man died just seven 2 years after his examination in 1953, did he not, sir, at the 3 age of 42? 4 A Yes. 5 Q' Of a heart att a c k , and his life expectancy 6 deficit, according to that table, would be 19, would it not, 7 sir? 8 A According to the table, sir. 9 Q IsnTt that what I said in my question, Dr. 10 Susk ind? 11 A Y e s , sir. 12 Q There is no question in your mind but what I said 13 according to that table? 14 A T h a t 1s right, sir. 15 Q And, Dr. Suskind, Mr. Newcomer, a 34-year-old 16 man, he lived twenty years after the examination, d i d n rt he, 17 sir? 18 A He d id . 19 Q. And his deficit was a minus 16, w a s n 't it, sir, 20 according to the table? 21 A According to the table, yes, sir. 22 Q And Mr. Shank, a 46-year-old man died at the age 23 of '67, he came close to living his life expectancy, d i d n 't 24 he, sir? It was a minus five, according to the table. 25 A Y e s , sir. 27 1 Q And, Doctor, Mr. Simmons, a 2 7 - y e ar - o l d man, died 2 of a heart attack at age 43, did he not, sir? 3 A According to the table, yes, sir. 4 Q And he had a deficit in his case of a minus 26 5 years, didn't he, sir, according to the table, is that 6 correct, sir? 7 A According to the tab 1e, y e s , sir. 8 Q Mr. Westphall died of cancer at age 54, he had a 9 deficit of a minus 16, didn't he, sir, according to the 10 table? 11 A He did indeed, sir. 12 Q And Mr. Harold Young, a 38-year-oldman, died at 13 the age of 45 of a heart attack, didn't he, sir? 14 A Yes, according to the table. 15 Q And hehad a deficit of a minus 26years, didn't 16 he, sir? 17 A Yes, according to the table. 18 Q Mr. H.O. Young died at age 69, did he not, sir? 19 A He did. 20 Q And he lived close to his life expectancy, just a 21 minus five, in his instance, isn't that correct, sir? 22 A Yes, according to the table. 23 Q . Now, Doctor, these deaths of these 13, and we've 24 already discussed the accidental or suicidal deaths of two 25 others, that's fourteen all together, or thirteen, rather, 28 1 Q No, we agreed that in Mr. S h a n k rs case it was 2 described as mild pains, but in fact, there were a number of 3 others where their symptoms were not mild, isn't that 4 correct, sir, in '53? 5 A No-- 6 Q I*m sorry? 7 A I'm not sure I understand what you mean. 8 Q You said here in your Exhibit 1727, your report 9 in 1978 that in very few cases workers continued to complain 10 of mild pains, nervousness, and fatigue. In point of fact, 11 there were a number of cases where they complained--where the 12 p r o b 1ems they complained of were not mild, isn't that 13 co rrect, sir? 14 A That'might be so, yes. 15 Q But you stated-16 A The comp 1a i n t s - 17 Q Sir? 18 A They complained, yes, sir. 19 Q But you stated in this exhibit that the only 20 complaints you got were mild pains and complaint of mild 21 pains, nervousness, and fatigue, isn't that right, sir? 22 M R . HE INEMAN : Objection, your H o n o r . May 23 counsel approach th bench? 24 THE COURT: Sure. 25 (The following conference was 36 1 heid at the bench.) 2 MR. HEINEMAN: That is a false and misleading 3 question. It says in this statement you say the only 4 complaint we got were mild pains, nervousness, and fatigue, 5 that is n 't what the statement s a y s , and I object to it as 6 misleading, false. 7 MR. CARR: It is this one right here, Judge. 8 THE COURT: Overruled. 9 (The following proceedings were 10 held in open C o u r t . ) 11 BY MR. CARR: 12 Q. Doctor, you did not announce to the world in 13 1978, you didn't give any description of the problem these 14 men were having in '53 other than to say they continued to 15 complain of mild pains, nervousness, and fatigue, isn't that 16 r ight, sir? 17 A No, sir, it is n o t . 18 Q I'm sorry? 19 A It isn't correct. 20 Q. Are you looking at the report you made in 1978, 21 sir? 22 A I am indeed,sir. 1 .23 Q And you are looking on Page 4? 24 A I am. 25 Q And did you not say on Page 4, "Thirty-six 37 1 persons were followed over a period of four y e a r s . In very 2 few cases workers continued to complain of mild pains, 3 nervousness, and fatigue." Did you say that, sir? 4 A Yes, I did. But 1 also said other things. 5 Q Oh, you said mi Id residue of acne were common, 6 did you not? 7 A Yes. And I said in the previous paragraphs, I 8 describe the manifestations of the problem. 9 Q You described the manifestations of the problems 10 as you first saw them in *49, did you not, sir? 11 A And 1950, y e s . 12 Q. And then you say, you describe the problems as 13 they existed in 1950, which were severe, were they not, sir? 14 A Some of them w e V e . 15 Q Severe and disabling, as a matter of fact, in 16 many instances, isn't that correct, sir? 17 A Some of them were, yes. 18 Q And then you describe, you say that you followed 19 these thirty-six persons over a period of four years, do you 20 n o t , s ir ? 21 A We didn't follow them, but they were followed. 22 Q Doctor, you say they were followed over a period 23 of four years, d i d n 't you, sir? 24 A Right. That's what this statement-25 Q And then you say with reference to following 38 1 these persons over four years, in very few cases workers 2 continued to comp lain of mild pains, nervousness, and 3 fatigue, didn't you, sir? 4 A That 's how it reads, sir. 5 Q Isn' t that what you said, sir? 6 A Y e s , sir. 7 Q But you did not tel 1 the world that in a number 8 of cases, the complaints that they had were not mild, did 9 you, sir? 10 A We d id n o t , sir. 11 Q And you left the impression with this document 12 that the only thing that they were complaining of were mild 13 pains, nervousness, and fatigue and some mild residue of 14 a c n e , did you not, sir? 15 A N o , sir. 16 Q Well, what impression did you leave with the 17 world other than what 1 have just stated? 18 A That it was our interpretation that o v e r a l 1--it 19 was our interpretation that overall the cutaneous and the 20 noncutaneous symptoms had regressed. And that overall the 21 noncutaneous symptoms such as pains, nervousness, and fatigue 22 were mild and occurred in a few cases, t h a t 's what we said. 23 Q That's what you told the world that the 24 p r o b 1ems-- 25 A That was our interpretation. 39 1 Q Excuse me, Dr. Suskind. Would you let me finish 2 my question, will you, sir, let' me finish my question before 3 you answer? 4 A Y e s , sir. 5 Q Thank y o u . A n d , Doctor, you also told the world 6 that they regressed and they regressed so much that in--so 7 that the si tuat ion by 1953 was that in very few cases the 8 workers continued to comp lain of mild pains, nervousness, and 9 fatigue, did you not, sir? 10 A That was our interpretation, sir. 11 Q But your interpretation in 1953 was in point of 12 fact that there were a number of cases that were not 13 categorized as mild, didn't you, sir? 14 A No. 15 Q N o w , D o c t o r , would you turn to the--your Exhibit 16 1701, your report that you--where you analyzed these people 17 in 1953 and where you said in seven cases they were not mild, 18 in seven of the twenty-seven, they were not mild, in '53, 19 Page 41, are you at Page 41, sir? 20 A Yes. 21 Q. Yousay inthe paragraph there, do you n o t , sir, 22 "Twenty-three persons at the time of the exam inat ion 23 complained of symptoms other than cutaneous, which they 24 attributed to the occupational exposure. These included the 25 aches and pains, nervousness, fatigue, loss of vigor, 40 1 dyspnea, decrease In libido, as described above. In most of 2 the twenty-three cases, the other symptoms were mild except 3 in instances cited by Messrs. Westphall, Steele, Willard, 4 Hudnall, Selby, Beckman, and Stover." Now, this is your 5 interpretation of your examination in 1953, is it not, sir? 6 A That is a record of it. As we indicated, we had 7 a judgment to make. 8 Q Dr. Suskind, please let me finish my question. 9 Isn't this Page 41 your interpretation of the complaints that 10 these people made? 11 A It is a record of the examination. 12 Q And, Doctor, isn't that record an interpretation, 13 is n 't this page an interpretation of that record? 14 A No, sir. 15 Q Doctor, how can you possibly say that you have 16 done anything except interpret the record when you say in the 17 paragraph, ''Twenty-three persons at the time complained of 18 symptoms other than cutaneous--" , that is an interpretation 19 of what these twenty-three people were complaining of, is it 20 n o t , sir? 21 A No, sir, it simply lists, it lists the twenty- 22 three who complained. T h a t 's what it says, twenty-three 23 people comp 1a i n e d . 24 Q Yes, t h a t 's your i n terpretation of their 25 complaints, isn't it, sir? 41 1 A No, that is the record of the complaint. 2 Q No, Doctor, the record of the c o m p 1aint is in 3 other places in the d o c u m e n t . This Page 41 is an 4 interpretation, is it not, sir? 5 A Well, since I wrote the document, I think 1 have a-- 7 Q Doctor, could you answer my question, please, 8 sir? 9 A Y e s , sir. 10 Q. Are you not interpreting the complaints that 11 these people have? Are you not saying that the comp 1aints 12 these people had included aches, pains, nervousness, fatigue, 13 loss of vigor, aren't you there interpreting their complaints 14 to show what they include, sir? 15 A We are recording those complaints. 16 Q No, Doctor, the recording of the complaint is in 17 the earlier pages where you--starting at Page-- 18 A This is a reflection of a record-- 19 ,Q Doctor, if I could direct your attention, 20 recording the complaint starting at Page 5 of this document 21 where you call it, "Case Histories", do you not, sir? 22 A Y e s , sir. 23 Q And there you say, "Case Histories. The 24 following are summar ies of the pertinent facts from the 25 medical histories of the persons who were examined," isn't 42 1 1 that right, sir? 2 A T h a t 1s true, sir. 3 Q Now, you are there listing not even the history 4 itself, but a summary of the history, aren't you? 5 A Yes. 6 a There is nowhere in this document except in the 7 very few instances actually the record that was made at the 8 time, is there, sir? 9 A It is an excerpt of the record, sir. 10 Q Well, did you understand my question, sir? In no 11 pi ace is the record here, Doctor 12 A The complete records are not here, no, sir. 13 Q Well, Doctor, not just the complete record. This 14 is a summary, this is your report, is it not, sir? 15 A 1 agree. 16 Q And the thing is entitled your report. 17 A It is indeed. 18 Q And in that report you evaluate things, don* t 19 you, sir? You made a clinical survey, did you not, sir? 20 A Yes. 21 Q And you made an environmental survey, did you 22 not, sir? 23 A Ye s , we did. 24 Q And in both those surveys, you ana 1yzed and you 25 interpreted, did you not, sir? 43 1 Ross# the psychiatrist? 2 A. I don't believe so. 3 Q. Did Dr. Ross# the psychiatrist# testify at the 4 compensation commission hearing? 5 A. I don't believe so. 6 Q. Do you have a copy of the report of Dr. Nestmann in 7 which I found most of these employees to be psychoneurotic? 8 A, No# I don't think I have# sir. 9 MR. CARR: Your Honor, could I approach the bench? 10 THE COURT: Yes# you may. 11 (The following Side Bar conversation was had outside the 12 hearing of the jury.) 13 MR, CARR: I would like to move that we receive 14 from Monsanto a copy of Dr. Nestmann*s reports. 15 MR. HEINEMAN: Do you know whether or not you have 16 it? 17 MR, CARR: I know I do not. 18 MR. HEINEMAN: You've said that before. 19 THE COURT: As I've said many times I don't think 20 that's an unreasonable request. You look for it and you 21 check to see if you do have it. But# I think that's not an 22 unreasonable production request. I think it should be 23 produced. It's obviously relevant to what we are doing 24 here. So both of you look. But I want -- I mean it's out of 172 X your campef X would expect that you come up with a copy. 2 MR. HEINEMAN: I would point out to the Court for 3 the record that the document that Mr. Carr is referring to on 4 Page 3 states that the evaluation -- wellr now wait a minuter 5 which document are you talking about? 6 MR. CARR: I'm talking about the report concerning 7 most of the employees that he has examined for Monsanto. 3 MR. HEINEMAN: Okay, well, we will look for it. I 9 don't know. 10 THE COURT: Okay. I think it should be produced. 11 I think it has to be produced. I'm ordering you to produce 12 it. 13 (The following proceedings were had in open court.) 14 Q, (by Mr, Carr) Doctor, if you don't have a copy of 15 Dr. Nestmann's report, did you use that when you prepared 16 your features of exposure to TCDD, 17 Q. Would you repeat the question? 18 MR. CARR: Would you read the question? 19 (Court Reporter read the previous question.) 20 A. No, I don't ibelieve I did, sir. 21 Q. Doctor, did you ignore that report of Dr. Nestmann 22 then when you prepared the possible human effects resulting 23 from TCDD exposure? 24 A. No, sir. 173 1 Q. Well, did you pay -- give it any weight, sir? 2 A. Wo, we didn't. 3 Q. You did not give it any weight? 4 A. Absolutely no weight. 5 Q. You ignored what Dr. Nestmann said, did you not, 6 sir? 7 A. Correct. 8 Q. And Dr. Nestmann found that most of these employees 9 had been exposed to TCDD who before were without neuroses for 10 some reason had become neurotic, isn't that correct, sir? 11 A. That's what he claimed, sir. 12 Q. Now, Doctor, that Dr. Nestmann is a person employed 13 and paid for my Monsanto, isn't he, sir? 14 A. I have no idea. 15 Q. Doesn't it say that, sir, he has examined these 16 people for us? 17 A. It says so. 18 Q. Yes. And he therefore is a person that -- a 19 psychiatrist examined these employees for Monsanto, correct, 20 sir? 21 A, At their request, I assume. 22 Q. Has anybody reported to the world, so far as you 23 know, that Monsanto's psychiatrist had found in 1955, some 24 six years after the exposure, that these men that he examined 174 1 then were neurotic as a result of the exposure? 2 A. Would you repeat the question. 3 MR. CARRs Would you read the question? 4 (Court Reporter read the previous question.) 5 MR. HEINEMANs Objection, Your Honor. May counsel 6 approach the bench? 7 THE COURT; Yes, you may. 8 (The following Side Bar conversation was had outside the 9 hearing of the jury.) 10 MR. HEINEMAN; I recall during my cross examination 11 of Plaintiffs' witnesses that at Mr. Carr's insistence this 12 Court has ruled that when we were asking questions on cross 13 examination that they had to be based upon some evidence in 14 the case, they had to be based on evidence. 15 THE COURT: Right. 16 MR. HEINEMAN: Now, there is no evidence whatever 17 that Nestmann found that these psychoneuroses were caused by 18 the exposure. Doesn't say that here. And that is included 19 in the question and I object to it. I object to it. I think 20 the Court should instruct the jury, or Mr. Carr should be 21 required to rephrase the question. 22 MR. CARR: Your Honor, I think that clear 23 conclusion can be drawn from Mr. Stone's apprehension as to 24 the implications that could be done if that report is 175 1 submitted as evidence, because it could only be evidence used 2 in the compensation hearing and he would be apprehensive only 3 if it showed a causal connection* 4 MR. HEINEMAN: Well -- 5 THE COURT: Without Nestmanns report the only thing 6 that I can base a decision on on your objection, or that any 7 questions can be based on for that matter, is this paragraph 8 about Nestmann's wort. That's not an unreasonable inference 9 and I think as such that it's a proper basis for a question. 10 Once we find the report if it shows something different, 11 that's something else, but at this point in time the only 12 thing that you've got and the only thing you've got in hand 13 is this particular report on Nestmann's work, and that's a 14 reasonable inference from that paragraph, I think. 15 MR. HEINEMAN: So, therefore, he's entitled to ask 16 questions based on reasonable inferences? 17 THE COURT: He's entitled to ask questions based on 18 that inference from this. He's got the documentary basis 19 upon which to base that question. I remember I called during 20 your cross examination a number of times when you inferred 21 the existence of the document to see whether or not in fact 22 that document did exist. I don't know if that's analogous, 23 but, the point of this thing, the only thing we have as far 24 as the document unfortunately is this one paragraph comment 176 1 on it. Your objection is overruled, 2 (The following proceedings were had in open court,) 3 MR, CARR: Would you read the question again? 4 COURT REPORTER: Has anybody reported to the world, 5 so far as you know, that Monsanto's psychiatrist had found in 6 1955, some six years after the exposure, that these men that 7 he examined then were neurotic as a result of the exposure? 8 A, I don't know of any report, sir. I said I don't 9 know of any report which includes Nestmann's findings. 10 Q, Would you read my question to him again, please, 11 (Court Reporter read the previous question) 12 A. No, not to my -- 13 MR. HEINEMAN: Just a minute. Objection. That's 14 been asked and. It's just been answered. 15 THE COURT: I think it has been answered. 16 Q. (by Mr. Carr) Now, Doctor, you had the benefit of 17 that report when you testified before the commission, didn't 18 you, sir? 19 A. I really don't remember. I believe that in *55 we 20 discussed that report. 21 Q. Yes, and you testified in 1956? 22 A. And I don't know, honestly don't know whether or 23 not it was ever raised in the hearing, sir. 24 Q. Doctor, saying this honestly, now my question to 177 1 you is, and I assume you've been -- strike that. My question 2 to you is you had the benefit of that Dr. Nestmann's report 3 before you testified at the compensation commission as to 4 whether or not these men should get compensation for the 5 disabilities, if any, they suffered resulting from their 6 exposure in this accident, isn't that correct, sir? 7 A. I did review that paper, if there is one. I can't 8 remember now, in '55, so that it was before we appeared at 9 the hearing, sir. A year before. 10 Q. Doctor, at the hearing you told the commission, did 11 you not, insofar as emotional factor is concerned, that as 12 far as -- when you v/ere being asked about these men's 13 emotions and how they are affected by this exposure, did you 14 not tell them that you were not a psychiatrist and all I can 15 go by is my observations and own limited experience with 16 emotional problems? 17 A. What page is that on, sir? 18 Q. Page 68, Dr. Suskind. 19 A. Thank you. Yes, I read that, sir, I have it, 20 Q. Doctor, you in fact did have something to go on 21 other than your own observations, did you not, sir, you had 22 the report of Dr. Nestmann that you had previously read, 23 isn't that correct, sir? 24 A. That's correct. 17B 1 Q. But you dicta1t tell the commission that, did you, 2 sir? 3 A. The commission knew it, sir. 4 Q. And, Doctor, where does it say here that the 5 commission knew what Dr, Nestmann's report revealed? 6 A, Their -- the meeting that we had with the Board in 7 1955 * 3 Q. And where does it say that you told them of this 9 report at that meeting, sir? 10 A, But the commission had that. 11 Q, Excuse me, Dr, Suskind, where does it say in the 12 1955 memo that you told the commission about Dr, Nestmann's 13 report of psychoneuroses of both of these persons? 14 A, Dr. Suskind, let me finish my question because I 15 can't hear what you are saying when I'm talking. 16 A, Sorry, 17 Q. Where in this report does it say Dr. Nestmann's 18 report was given to the commission, or that they knew of it 19 or were told of it or it was even hinted at? 20 A. In the report of 1955, sir. 21 Q. That's what I'm asking you, where in that report, 22 sir. 23 A. Sorry, there is nothing in that report that 24 indicates that the commissionhad it at the time. 179 1 Q, Doctor, in point of fact what that report says is 2 that at the end of the conference of the commission officers, 3 you all went to the lawyer's office where you discussed this, 4 isn't that correct, sir? 5 A. That's correct, sir. 6 Q. Mow, Doctor, you knew of Dr. Mestmann's report when 7 you testified in front of the commission, but you did not 8 tell them of it, did you, sir? 9 A. I didn't discuss it, sir, no. 10 Q. And, Doctor, you said that you had only your own 11 observations to go on and that wasn't true, was it, sir? 12 A, In this instance, yes, my own observations I depend 13 upon -- 14 Q. Doctor, my question to you is you told the 15 commission that all you could go on was your own 16 observations, and that wasn't true, you had Dr. Nestmann's 17 report to go on, did you not, sir? 18 A. It was true, sir. 19 Q. Did you not have Dr. Nestmann's report to go on? 20 A. Yes, but I didn't have to take it seriously, sir. 21 Q, Yes, but Doctor, that's not what you told the 22 commission. You didn't say, well, I've got a report from 23 Monsanto's psychiatrist that says all these people are 24 neurotic following this exposure, but I don't take it 180 1 seriously, you didn't tell them that, did you, sir? 2 A* No, I didn't. But I didn't have to, sir. 3 Q, What you told them, sir, was that all you can go on 4 is by your own observations? 5 A. Yes, sir, that's what I said. 6 Q. Isn't that correct? 7 A. I did indeed. 8 Q. You also told them that these were anxious people 9 but you are not prepared to say that it came from the 10 original disease, isn't that right, sir? 11 A, Correct, sir. 12 Q. You acknowledged that they were anxious, you 13 acknowledged that they had emotional problems, but what you 14 said in effect was that they did not stem from the exposure, 15 isn't that correct, sir? 16 A. I haven't read through this, and if you'll point 17 out where I said that. 18 Q. Page 75 and Page 63 and throughout that line of 19 questioning, sir. Doctor, to help you on Page 63 you said it 20 would be impossible for you to say that all their 21 apprehension or anxiety or even some of it was actually due 22 to the original exposure, did you not, sir? 23 A. I did indeed, sir. 24 Q. And what you said on Page 75 was, "I would say yes 181 1 that they have their emotional problems and they're anxious 2 people but that their anxieties stem from the original 3 disease^ I would not be prepared to say," isn't that right, 4 sir? 5 A. Yes, sir, that's what I said, sir* 6 Q. Doctor, at that point in time, you acknowledged 7 that they were anxious people, you acknowledged that they had 8 the fears, they had apprehension, they had concerns as the 9 examiner at that time asked you about. You knew that Dr. 10 Nestmann had given a report supporting the Plaintiffs in 11 their statement that they're anxious, fearful, and neurotic 12 and yet you told the commission at that time that there was 13 no basis for that connected with the original exposure, did 14 you not, sir? 15 A. No, I didn't say that, sir. I didn't say that, 16 sir. 17 Q. Doctor, on Page 63, didn't you say, "It would be 18 impossible for me to say that all of the apprehension or 19 anxiety or even some of it is actually due to the original 20 exposure?" 21 A. That's very different from what you just said, sir. 22 Q. Excuse me, did you say that? 23 A. Oh, I said it, yes, I did. 24 Q. And you said it would be impossible for you to say 182 1 it? isn't that right? sir? 2 A, Yes? sir* 3 Q. And on Page 75? did you not say that you weren't 4 prepared to say that it stemmed from the original disease? 5 A. Yes? I did say that. 6 Q. Yes. Doctor? if the report of Dr. Nestmann would 7 not support the workers who had these problems at that time? 8 why would he not want it to be submitted as evidence? 9 A. Why would who -- 10 Q. The attorney would -- whom you discussed all of 11 these legal cases with? sir? at the time you met with him the 12 lawyers who are going to present this case that you sat down 13 and conferred with? you discussed with? you said I'm going to 14 talk to the psychiatrist? they gave you all the summaries of 15 all these legal causes? those lawyers? why would they not 16 want this Nestmann report submitted as evidence if it were 17 going to show that these fears or neuroses did not stem from 18 the exposure? 19 A. I don't know that it wasn't submitted? sir, because 20 I was only present at one of the hearings. Other doctors 21 that testified as well before or after me? and I have no idea 22 whether Nestmann testified. I really don't know. Do you? 23 Q. What I know is I haven't got the report? Doctor. 24 A, Well? very frankly, I don't either. 183 1 Q. I got the commission hearing and X don't have the 2 report. Isn't their -- 3 A, That's the commission hearing of my hearing, 4 MR. HEINEMAN: Objection, May counsel approach the 5 bench? 6 THE COURTi Yes, you may* 7 (The following Side Bar conversation was had outside the 3 hearing of the jury,) 9 MR, HEINEMAN: When Mr, Carr says that all he says, 10 he has the commission hearing and all there is in it is 11 Suskind's testimony. That is a blatent falsehood, 12 THE COURT: That's not what he said, number one. 13 Number two, I would like to know why when I've been trying to 14 -- asking you to try to keep this witness in line with the 15 decorum of this courtroom, your main reaction has been to 16 come up here and object, when Mr. Carr has a response totally 17 uncalled for, questions to him, tries to put the witness back 18 in some sort of even keel. I don't think that anything that 19 he said is false. I don't think anything he said was 20 misleading. Your objection is overruled. We have got very 21 little time left today. Let's go back to trial. 22 (The following proceedings were had in open court.) 23 Q. (by Mr. Carr) Doctor, what you do know is you 24 didn't utilize the results in your decision as to what is or 184 1 is not a problem that can come from exposure to dioxin, isn't 2 that correct, sir? 3 A, I did not utilize the results of the Nestmann 4 report if that's what you are saying, but we didn't know 5 anything about dioxin at the time, sir, 6 Q. Doctor, when you wrote your articles in '73 and 7 *78, you went back and researched the medical information 8 that was available to you connected with these men, did you 9 not, sir? 10 A, That were reported in peer reviewed journals, sir? 11 Yes. 12 Q. When you did your 1979 morbidity study, the 13 sickness study, you went back and reviewed the medical 14 record, didn't you, sir, on these people that were exposed? 15 A. We reviewed those -- 16 Q. In the 19 what, sir? *79? The study you started 17 in June, July 1979 and reported in May of 1984? 18 A. When we needed them we did go back to them, sir, 19 yes. 20 Q. Doctor, you made no mention of these psychoneuroses 21 on these workers that were exposed, did you, sir, in any of 22 your reports, any of your publications? 23 A. None in the publications, but I think in the actual 24 records we do have, wherever the individual indicated that 185 1 they had emotional problems, we reported them. 2 Q. Doctor, my question referred to Dr. Nestmann's 3 report, sir. Did you understand that's what I'm asking you 4 about? 5 A. X don't believe it was ever published. 6 MR. CARR: Your Honor, would you direct the witness 7 to let me finish my question. 8 THE COURT: Doctor, let him finish. 9 A. Thank you. 10 Q. (by Mr. Carr) Doctor, what I'm asking you is 11 whether or not you utilized Dr. Westman's (sic) report, his 12 findings -- this psychiatrist hired by Monsanto in any of the 13 publications that you made about the health effects of 14 2,4,5-T or its contaminants upon the workers? 15 A. We did not, sir. 16 Q. Yes. But it is a piece of evidence that has not 17 yet so far as you know seen the light of day, isn't that 18 correct, sir? 19 A. I don't know whether Nestmanh ever published it. 20 Q. Excuse me, did you answer my question? Please, 21 sir, is the answer to my question that as far as you know 22 this evidence of the health effects on workers exposed to 23 dioxin has not yet seen the light of day? 24 A. There are two parts of that question, one is dioxin 186 1 and the other is the psychoneurotic effects and -- 2 Q* Could you answer that question, please, Dr, 3 Suskind? 4 A, I don't know whether it's seen the light of day, I 5 haven't seen it, sir, 6 Q. Doctor, my question is -- and listen to me 7 carefully, as far as you know it has not seen the light of 8 day? So far as you have knowledge of, it has not been 9 disseminated? As far as you are aware, it has not been 10 published? As far as you have any idea of, nobody has read 11 it other than you and the lawyers in their offices on that 12 day in November of 1955, isn't that correct, sir? 13 A. Mr. Carr, there are ten parts to that question. 14 MR. CARRs Your Honor, would you direct -- 15 THE COURT: Answer the question, 16 A, Can I answer this one at a time? 17 THE COURT: Doctor, the question was very clear. 18 Please answer it. 19 A. I don't know. 20 Q. (by Mr. Carr) No, Doctor, I'm asking you for your 21 knowledge as far as you know has it ever seen the light of 22 day? 23 A. No. 24 Q. Thank you, Doctor. Doctor, it is another piece of 187 1 evidence that the world doesn't have to use or to utilize 2 with respect to what does dioxin do to people, just as the 3 piece of evidence we have here in a few cases, they don't 4 have the evidence about the 27 out of 29, do they, sir? 5 A* But if that's a question, sir, can I answer the 6 question? 7 Q. Excuse me, they don't have the evidence of the 8 Nestmann report just as they don't have the evidence of the 9 27 out of 29, isn't that correct, sir? 10 A. NO. 11 Q. What is incorrect about it, sir? 12 A. As I said, I don't know whether the Nestmann report 13 has never been published. 14 Q, So far as you know, Doctor, have you ever read it 15 anywhere that Dr. Nestmann or Monsanto or these workers had 16 psychoneurotic effects from dioxin exposure? Have you ever 17 read? 18 A. I haven't. I haven't read it. 19 Q. Have you ever read anywhere that 27 out of 29 of 20 these workers that you reexamined in 1953 you found to have 21 continued complaints? 22 A, I hope not. 23 Q. Sir? 24 A. I hope not. 188 1 Q, Would you answer ray question, Doctor? 2 A. No. 3 Q. Has anybody read in the world that you've 4 interpreted these 27 out of 29 as having these -- 5 A, They have not, sir. 6 Q. But it has been your interpretation, hasn't it? 7 A. No, it hasn't. It's your interpretation. 8 Q. Oh, Doctor. Do we have to go through this again 9 and again and again. Didn't you acknowledge, sir, that this 10 was indeed your interpretation? Didn't we get that clearly, 11 sir, established once, didn't we, sir? 12 A. For the record we did, yes, sir. 13 Q. And didn't we get it clearly established that you 14 interpreted these records this way? 15 A. Clearly, no, sir. 16 Q. Doctor, didn't we go through each of them and 17 didn't I ask you on Monday and Tuesday this is -- these are 18 your interpretations, aren't they, sir? 19 A. Yes, you asked me that. 20 Q. And didn't you say, yes, they were your 21 interpretations? 22 A. That what you have on the board? 23 Q. Yes. 24 A, Using your method of coding. 189 1 Q, No, using your interpretations, sir? 2 A. No, sir* 3 Q. Oh, Doctor, fortunately that -- we don't need to go 4 over it again because I do have the transcript of Monday, 5 while I don't have the more clearer transcript yesterday, 6 yeah it was yesterday, or Tuesday. Page 24 of the testimony 7 of March 3rd, Counsel. Didn't I ask you these questions at 8 that time or this question, Doctor? "Didn't we just 9 establish that 90 percent of them did continue to complain 10 according to your records, according to your interpretation 11 of your records?" And wasn't your answer at that time, "Yes, 12 sir?" 13 A. I did. 14 Q. Now, so that we are clear, we did establish that 90 15 percent of these workers continued to complain according to 16 your interpretation of your records, have we not, sir? 17 A. Not clearly established. We have -- 18 Q. Doctor, you want to read your testimony, sir? 19 Isn't that exactly what you said at that time, sir? 20 A. I don't see the word clearly in here, sir. 21 Q. Well, Doctor, didn't we establish then, sir, that 22 this 90 percent of these people have these problems according 23 to your interpretation of your own records? 24 A. Yes, sir. 190 1 Q. So according to your interpretation of these 2 records, has the world ever been told that 90 percent of 3 these people, 93 percent, actually, 27 out of 29 continued to 4 have these complaints? 5 A. No, sir. 6 Q. And they haven't been told about Dr Nestmann's 7 report, either, have they, sir? 8 A. No, sir. 9 Q Now, Doctor, you had another meeting with Monsanto 10 in 1956 just -- strike that. You had a meeting in which it 11 was reported to you about the BASF occurrence, was it not, 12 sir,? 13 A. X don't have this, the memorandum, so X can't 14 verify it. 15 Q. Could you give him Plaintiff's Exhibit 1459 to the 16 witness 17 MR. CARR: Your Honor, for the jury, we have -- I 18 think the jury has had keeps once, but it's been some time 19 back and I'll pass copies of 1459 to the jury again. 20 THE COURT: Fine. 21 (Exhibit passed) 22 Q. Doctor, 1459 is actually two reports in one, first 23 three pages is a Monsanto Chemical Company report made by Mr. 24 Wheeler to Dr. Kelly and the last five pages is a report 191 1 referable to a conference had at Kettering Laboratory, where 2 you were present, isn't that correct? 3 A* Is there a date on the second part, sir? 4 Q. No, there is no date* 5 A. There should be, sir. 6 Q. I'm sorry? 7 A* There should be. 8 Q. Maybe there should be, but there wasn't when it was 9 given to me by Monsanto? 10 A* This was held in 1960, sir. 11 Q, That's perfectly all right, Doctor, I'll certainly 12 accept that. I have no reason to dispute it. So we have 13 these two reports, one in 1956 and one in I960, is that 14 correct, sir? 15 A. Yes. 16 Q. Now, Doctor, there was -- there occurred in 1953 an 17 accident in Germany at the BASF plant, isn't that correct, 18 sir? 19 A. According to this memorandum, yes, sir. 20 Q. Well, Doctor, according to the conference at which 21 you attended, isn't that right, sir? 22 A. Yes. 23 Q. So there is no question about that, they did have 24 that accident? 192 1 A. In 1953, yes, sir. 2 Q. And, it's reported In the second paragraph of the 3 first page that the men at BASF had in addition to the 4 chloracne, fatigue, vertigo, loss of libido, painful joints 5 and so forth, correct, sir? 6 A* That's correct. 7 Q. Those are symptoms remarkably similar to the 8 problems exhibited by the workers that you examined, isn't 9 that correct, sir? 10 A. They are. 11 Q. Now, Doctor, the next paragraph goes on to point 12 out that animals that were placed in cages where the cages 13 had been in the department, these animals that simply are 14 placed in the cages after they came out of the department 15 died of liver necrosis? 16 A. They died, but the autopsy showed liver necrosis. 17 Whether they died of liver necrosis, I don't know. 18 Q. Doctor, I know you don't know, because you weren't 19 there and you didn't perform the autopsy, but if you would 20 listen to my question, my question is simply this reports by 21 Dr. Oettel, does it not, he says that not only did animals 22 die that were put in the department in open wire cages, but 23 animals that were put in these open wire cages after they 24 were taken out of the department also died of liver necrosis, 193 1 isn't that correct, sir? Doctor, it's the last sentence on 2 the third paragraph, 3 A. Yes, I see it, but it -- 4 A, The interpretation is not as you stated, sir? 5 A, They died after they were taken out of that 6 department, sure, took awhile for them to become ill and 7 die 8 Q. Doctor, the -- it describes two groups of animals, 9 doesn't it, sir, animals that were put in the department in 10 cages, they all died within -- there is three groups of 11 animals, actually. The first group exposed. There were no 12 -- in open wire cages. There are no obvious symptoms and 13 they died one week after exposure, correct, sir? 14 A. Yes. 15 Q. Sir? Is that correct, sir? 16 A. In the open wire cages, that's the first group. 17 Q. Is that correct? 18 A. Yes, sir. 19 Q, They died. Autopsy showed liver necrosis, correct, 20 sir? 21 A. That's correct, sir. 22 Q. And then it says he thought there might be a virus 23 infection so he exposed additional animals in the department, 24 others in cages suspended inside the "decontaminated" 194 1 What page does it point out that they had the data? 2 A. I don't believe that it's in there, 3 Q, Doctor, is there any document that you have to show 4 that you gave this 1953 report to the commissioner, this was 5 a report to Monsanto? 6 A,- If you let me look through this, I'll -- 7 Q. It is a report to Monsanto, not a report to the 8 commission. Show me, please, sir, where you gave a copy of 9 that to the commission, 10 A, I didn't give it to them, Monsanto did. 11 Q. How do you know that Monsanto did? Did some 12 attorney tell you that? 13 A. No, it's in here. 14 Q. Please find it for me. 15 A, I believe it is on Page 13, the results of these 16 observations were made available to the company in a form of 17 report which was made in December of *49, I understand this 18 report was made available to the commission. 19 Q, You are referring to the December 1949 report, 20 aren't you? 21 A. *49 and '50. 22 Q. Doesn't say *50, says *49, talks about your report 23 on four men in 1949, does it not, sir? 24 A. Yes, it does. 108 1 Q. That's not the 1953 report, is it, sir? 2 A* In this opinion as contained in the report which 3 was to the company in April 1950, 4 Q. What page are you referring to now, sir? 5 A. 13 -- I mean 18, My recollection that all of those 6 reports were made -- 7 Q, Excuse me, Doctor, if you don't mind, sir, you are 8 talking there about a report that you gave the company, 9 correct, sir? 10 A, Right, 11 Q. Correct, sir? 12 A. Yes, 13 Q. Could you find for me any place in the record where 14 the 1953 report was given to the commission? 15 A. It may not be stated, but in my understanding -- 16 Q. Please don't tell me what -- 17 A. It is my recollection, sir, 18 MR, CARR; Your Honor, would you ask. 19 THE COURT: Doctor, that was not responsive to the 20 question -- listen to the question and just respond to that 21 alone, please, 22 Q, Doctor, X would like for you to point out where in 23 the record any document any mention of the 1953 report having 24 been given to the commission? 109 1 A. In my casual perusal -- 2 Q. I'd like for you to point out for me -- 3 A* I cannot at this time find it, but I know from my 4 recollection that the commission got the report. 5 MR. CARR: I ask the jury be instructed to 6 disregard what the witness has said. 7 THE COURT: Doctor, I just told you 30 seconds ago 8 that that same comment was not responsive to the question and 9 you did it again. I'm ordering you not to do it any more. 10 Ladies and gentlemen, that was not responsive to the 11 question. It was an improper remark. You are ordered to 12 disregard it. 13 Q. (by Mr. Carr) Doctor, the report that you made 14 suggests you told the commission at that same time that there 15 had been no new cases of chloracne, isn't that correct, sir? 16 A. Yes. You have a quotation, I'd like to see it, 17 Q. Don't you recall, sir, that you did tell them that? 18 A. I'd like to verify it, sir. 19 Q, Sir? 20 A. I said I'd like to verify it. 21 Q. Doctor, is your best memory that you did or did not 22 tell them that? 23 A. I can't recall whether I did or did not, sir, 24 Q, Look at Page 76 and 77, sir, which you talk about 110 1 your 1953 survey, see that bn Page 77, sir, now at the time 2 that we did this survey there had been no new cases for some 3 time, and I believe with the exception of one, there were no 4 new cases since that time, do you see that, sir? 5 A. Yes, 1 do. 6 Q. This was your sworn statement to the commission 7 that at the time you did that survey, there were no new cases 8 for some time and that at that time there had been only, with 9 the exception of one, there had been no new cases since that 10 time, isn't that correct, sir? 11 A. Yes, that's what I was told. 12 Q. You meant again for the commission to believe that 13 the chloracne that had been caused was caused as a result of 14 this accidental explosion and not as a result of the process, 15 isn't that correct? 16 A. No, sir, not at all. 17 Q. Did you mean for them to believe that there had 18 been no new cases of chloracne that had occurred since the 19 accident, sir? 20 A. No, sir, not by any means. 21 Q, Didn't you tell them that, sir? 22 A, No, sir, I did not. 23 Q. What did you tell them? 24 A. I said there had been no new cases since the *53 111 1 examination 2 Q. Well -- 3 A. That's what I said, and that's what X was told by 4 the medical department of the company, sir, 5 Q, You knew that was a lie, sir, did you not? 6 A, Nothing to do with the accident, 7 Q, Sir? 8 A, Nothing to do with the accent. 9 Q. You knew there were new cases since '53, did you 10 not, sir? 11 A. No, I did not, I had no opportunity to know that. 12 I was told by the company that there were very few or no new 13 cases since *53 except one, that's what I was told. 14 Q. What you told the commission was that there were no 15 new cases of chloracne since your survey in *53 except for 16 one, correct, sir, with -- and none after that up to the 17 present time, that is 1956, except for one, isn't that 18 correct, sir? 19 A, Yes, that'swhat I was told. 20 Q. That's what you told the commission? 21 A. Yes, I did. 22 Q. You knew at the time you told the commission that 23 that there had been new cases since your 1953 survey, didn't 24 you, sir? 112 1 A. No, I'm not sure I did, sir* 2 Q. Well, Doctor, you swore on your oath to them in 3 1956 that from 1953 forward there had been no new cases and 4 up to 1956 there might have been one, is that what you told 5 them under oath, didn't you, sir? 6 A. That is what I was told, sir, I was told it and I 7 simply recounted it, 8 Q. Doctor, why don't you look at the report that you 9 made in July of 1954 in which you describe new cases 10 occurring since your 1953 report. You were told that there 11 were new cases, but -- and you told Monsanto that there were 12 new cases, but you lied to the commission and you told them 13 that there were no new cases, isn't that correct, Dr, 14 Suskind? 15 A. No sir, I would have no knowledge of new cases 16 because I'm not an employee of the company, I wasn't in 17 Nitro, How would I have access to new cases? 13 Q. Doctor, why don't you turn to Page 13 of your 19 report, your July 1954 report where you say, and the jury has 20 this, that new cases arise currently in the 2,4,5-T synthesis 21 despite carefull reorganization of the process, and 22 institution of rigid hygienic precautions indicates that 23 acnegens are still being evolved and that the potential 24 hazard is still present. You said that at that time, did you 113 1 not, sir? 2 A. Yes, that's what we wrote, sir* 3 Q. But you didn't tell the commission that, did you, 4 sir, you told the commission that no new cases had come up, 5 didn't you, sir? 6 A That was my understanding, sir 7 Q. Doctor, wasn't your understanding because this is I 8 your report of July of '54, isn't it, sir? 9 A. Yes, sir. 10 Q. So it couldn't possibly be your understanding, 11 could it, sir? 12 A. Yes, it could be, sir. 13 Q. When you say new cases arose -- 14 A. Again, we were depending upon the company to tell 15 us that. 16 Q. They told you new cases arose, didn't they, sir, 17 despite these rigid things that took place after your 1953 18 recommendation, didn't they, sir? They told you that new 19 cases were arising currently in your 2,4,5-T synthesis, 20 didn't they, sir? 21 A. Yes, we must have been told that, sir. 22 Q. Yes, indeed. But you told the commission that no 23 new cases arose, didn't you, sir? 24 A. That's what the record reads, sir. 114 1 Q. That's what you told them, isn't that correct? 2 A* That is, sir* 3 Q. And so the commission, when it made its decision, 4 you told them that a new process that had been cleaned up and 5 hygienic that the only cases of chloracne that you had were 6 the ones that were caused by the trichlorophenate accident, 7 that the 2,4,5-T that was currently being made couldn't cause 8 chloracne because no new cases had arisen, even though you 9 knew at the time, sir, new cases had arisen, isn't that 10 correct? 11 A. That is not so and -- 12 Q. Tell me which part is incorrect? 13 A* It's a gross interpretation of what you said and 14 what you have gotten me to tell you, sir* 15 Q. Tell me which part is incorrect? 16 A. The fact that only the accident was the source of 17 the chloracne, I never said that at any time in any of those 18 reports, sir 19 Q. Doctor, point out -- 20 A, So that is inaccurate. 21 Q- Point out to me where in the record, this 22 transcript, you told them that something other than the 23 accident was the cause of the chloracne? 24 A, Well, I didn't say that the accident was the sole 115 1 cause of the chloracne in here. 2 Q, But f Doctor# you told them first of all that these 3 men that you examined were all involved in the accident# 4 correct, sir? 5 A. Those men that I examined -- 6 Q. Excuse me# could you -- 7 A. For the commission# yes. 8 Q. Could you just go one at a time. 9 A. For the commission, yes. 10 Q. You told them these men were all in the accident? 11 A. The four I examined were. 12 Q. Is that correct# sir? 13 A. Yes, sir. 14 Q. You told them that you tested the 2,4#5-T, the end 15 product,'"and that it didn't cause chloracne# didn't you, sir? 16 A, The recrystalized, yes. 17 Q. You didn't say recrystalized? 18 A. Yes, I did, sir. 19 Q. Point out to me in the record where you told them 20 in 1956 that it was recrystalized, sir. 21 Q. You are not looking at the transcript? 22 A, It's in the letter -- 23 Q. Dr. Suskind, could you look at what you told the 24 commission that's making these decisions at that time# sir? 116 1 A. It was told In 1955 to the commission, sir* 2 Q. Dr, Suskind, this case took place in 1956 in 3 November of *56, your testimony took place November the 29th, 4 1956? 5 A. It's important to combine both of my items -- 6 Q. Dr. Suskind, will you please tell me where in that 7 transcript you told the commission that the 2,4,5-T caused 8 chloracne? 9 A. From our experiments we didn't find that it caused 10 chloracne because it was recrystalized, however, the process 11 of -- 12 Q. Doctor, my question -- 13 A, The process of making 2,4,5-T causes chloracne, 14 Q. Doctor, my question is where did you tell the 15 commission that the end product that these men worked with 16 caused chloracne? 17 A. The end product, we didn't, but the process of 18 making it, 19 Q. Doctor, did you understand my question? 20 A. I did indeed, and I'm answering it correctly. The 21 process of making 2,4,5-T causes chloracne. 22 Q. Doctor -- 23 A. And I've said that a thousand times in this court, 24 sir. 117 1 Q. If you said it a thousand times, just point out to 2 me one time where you said just working in the process causes 3 the chloracne. 4 A. Okay, 1953 report, sir. 5 Q. Doctor, I'm talking about what you told the 6 commission? 7 A, The commission had this report, sir. 3 Q. Doctor, we have been through that as well. There 9 is no place in this record and you have no knowledge 10 whatsoever that that report was ever given to the 11 commission. 12 A. Yes, I do. 13 Q. Where is the source of the knowledge? 14 A. The source is what I knew to happen. It doesn't 15 have to be in the transcript in order for it to happen, sir. 16 Q. Indeed it does have to be. 17 A. No, it does not. I disagree with you. 18 Q. You may disagree, but do you have any knowledge 19 that it happened? 20 A. My best recollection of that hearing, sir. 21 Q. They mark this as an exhibit and put it in the 22 record? 23 A. No, they did not, sir. They didn't have to. 24 Q. Oh, yes, you have to. That's one of the beautiful 118 1 things about courts, we have stenographers who take them down 2 and we have clerks that file papers, and -- 3 A. Worksman's compensation hearing -- 4 Q. Workman's compensation hearing is exactly the same 5 as it is in court, you do it with exhibits, you do it with 6 witnesses, you do it with sworn testimony. It is nothing 7 more than a trial just like in court, Doctor, except you've 8 got a commission instead of a jury, and you know that to be 9 the fact, don't you, sir? Don't you, sir? 10 A, Yes, sir. 11 Q. And, Doctor, there is no place in this record and 12 you have no documentation of any other place where your 1953 13 report was given to the commission? 14 A, It is my best recollection that all the reports 15 were given to the commission. 16 Q. Doctor, I didn't ask you about your recollection, 17 what I asked you was whether or not you have any record, 18 whether or not you can point to any record that shows that it 19 was so done. Do you have any such record, sir? 20 A. If I did I wouldn't know where to locate it, sir. 21 Q. Doctor, with regard to the TCDD being produced at 22 Monsanto, I'll hand you what's been marked Plaintiff's 23 Exhibit 1488 earlier. It's coming apart now, and it will 24 show you the production for the years *58 through *65. I ask 119 1 you whether or not in any of those years there was 2,4,5-T 2 described as not having TCDDr sir? 3 A* This goes up to 1965, sir. 4 Q. Yes, it does. 5 A. And they made it up until 1969. 6 Q. Yes. Is there any reference there, sir, where the 7 8 A. Not in this report, sir. 9 Q. And, Doctor, insofar as the cases of chloracne is 10 concerned -- , would you mark this as an exhibit? Hand you 11 what's been marked Plaintiff's Exhibit 1757, and ask you if 12 you recognize this as a memo which causes a meeting with you, 13 sir, in December of *55? 14 A. I believe the date may be inaccurate. It isn't 15 '55, is it? 16 Q. Yes, it is '55, Doctor. To help you refresh your 17 memory on it, you were discussing and doing other tests, 18 discussing a possibility of other tests and 2,4,5-T, weren't 19 you, sir, in *55? You just looked at a memo dated November 20 *55, sir, in which you discussed these tests? 21 A. Yes. 22 HR. CARR: Offer these exhibits into evidence if it 23 please the Court. 24 HR. HEINEMAN: Counsel approach the bench? 120 1 THE COURT: Sure 2 (The following Side Bar conversation was had outside the 3 hearing of the jury.) 4 MR. HEINEMAN: Object to the exhibit, Your Honor. 5 There is absolutely no foundation been laid for the admission 6 of this document. The doctor is mentioned in the document. 7 He does not appear to have been present. He does not appear 8 to be a recipient. Doesn't appear to be an author of it. 9 And the only thing he does is mention his name and, 10 therefore, there has been absolutely no foundation laid for 11 its admission into evidence. 12 MR. CARR: This is a document given to us by 13 Monsanto, Your Honor, as part of their business records. 14 THE COURT: Objection is overruled. It's 15 admitted. 16 (The following proceedings were had in open court.) 17 MR. CARR: Pass it to the jury, please the Court? 18 THE COURT: I'm sorry, did you say something? 19 MR. CARR: Pass it to the jury? 20 THE COURT; Sure. 21 (Exhibit passed to the jury) 22 Q. (by Mr, Carr) Doctor, this exhibit, this Monsanto 23 exhibit discusses the meeting that Mr. Soden had with you, 24 does it not, sir? 121 1 A, I believe that may be referring to that November 2 3rd meeting, sir. 3 Q, It might have? Might be? It might be? 4 A. The one you just gave me, 5 Q. Who is Mr, Soden? 6 A, I believe he was the plant manager, if I'm not 7 mistaken, 8 Q, The plant manager at that time then states that 9 this chloracne problem, the 2,4,5-T problem, has not been 10 solved, doesn't he, sir? 11 A, Yes, he indicates that. 12 Q, He also tells in this memo that while the plant is 13 considerably safer, we know of three new chloracne cases 14. during the past year, correct, sir? 15 A. That's what it states, sir. 16 Q, He also says he's convinced that the only solution 17 to the problem is to isolate that which causes the chloracne 18 and remove it from the process, correct, sir? 19 A. I believe that's what he says, sir. 20 Q. That's what he does say, doesn't he, sit? 21 A. Yes, sir, 22 Q. He also goes on to say that our experience and that 23 of Dow and Diamond Alkali indicates that distillation of the 24 trichlorophenol can provide this solution to the problem, do 122 1 you see that? 2 A. Yes, sir, 3 Q. And you knew from your work that the Diamond Alkali 4 material, that distillation of the trichlorophenol would 5 solve the problem, did you not, sir? 6 A. Forgive me, but I'm a little confused about the 7 dates here. I don't know whether this preceded the -- that 8 study or whether it came after the study. I really don't 9 know. I'm talking about the study in which we use the 10 trichlorophenate from the plant process, the trichlorophenate 11 made according to Diamond Alkali and then a distillation. So 12 I really can't tell you whether or not this preceded our 13 doing it or came after our doing it. I think it preceded our 14 doing it, sir. 15 Q. Well then, even if that's true, Doctor, then even 16 without your work with the Diamond Alkali material, they knew 17 that Dow and Diamond Alkali could distill trichlorophenol and 18 eliminate the chloracne causing material, is that correct, 19 sir? x 20 A. Well, it would cause less chloracne -- Diamond 21 Alkali, sir, had chloracne. 22 Q. My question is, sir, doesn't this indicate, sir, 23 that Monsanto in 1955 knew that the material causing the 24 chloracne could be -- could be removed by distilling the 123 1 trichlorophenol? 2 A. No, sir, I don't believe* 3 Q. Doctor -- 4 A. Reduced by it. 5 Q. Doctor, what does this sentence say, our 6 experience, or mean, nOur experience and that of Dow and 7 Diamond Alkali indicates that distillation of the 8 trichlorophenol can provide this solution to that problem?" 9 A. Right, that's what it says, sir, which means -- 10 Q. That's what it means? 11 A. Doesn't mean eliminate, it means that the material, 12 the acnegenic material may be decreased. 13 Q. No, Doctor, the sentence before that says it can be 14 removed, "I'm convinced that the only solution to the 15 problem is to isolate the chloracne causing material, and 16 remove it from the process." Doesn't it say that, sir? 17 A. Yes, that's what it says, 18 Q. He said -- 19 A. But -- 20 Q. Now, Doctor, please do not interrupt me. Let me finish my line of questioning then you can disagree with the conclusion when we get to it. I can never get to it if you keep interrupting me. He says the solution to the problem is to find out what's causing it and remove it, correct, sir, in 124 1 that sentence? 2 A* Yes* 3 Q. No doubt about it that's what he says is the 4 solution to the problem, correct, sir? 5 A. Correct, sir. 6 Q. Then he says, nOur experience and that of Dow and 7 of Diamond Alkali indicates that distillation of the 8 trichlorophenol can provide this solution to the problem," 9 does it not, sir? 10 A. That's what he said, sir. 11 Q. And the solution that he's talking about is 12 removing the chloracne causing material, correct, sir? 13 A. Correct. 14 Q. And he says that the experience indicates that 15 distillation of trichlorophenol can do that, correct, sir? 16 A. No. 17 Q. Doesn't he say our experience of Dow and Diamond 18 Alkali indicates the distillation of trichlorophenol can 19 provide this solution to the problem? 20 A. Yes, he does say that? 21 A. What is the solution to the problem that he says, 22 what is the solution? 23 A. May I answer? 24 Q. What is the solution that he describes can solve 125 1 the problem? 2 A. The distillation o trichlorophenol. 3 Q. And what is the problem? 4 A. The problem is the acnegenic agent which can be/ 5 which can be reduced/ not removed, sir. 6 Q. Doctor -- ' 7 MR, CARR: You Honor, would you ask the jury to 8 disregard that statement? 9 THE COURT: Jury is so instructed, it was not 10 responsive to the question. Jury is ordered to disregard 11 it. So ordered. 12 Q. The problem. Doctor, is what the chloracne causing 13 agent, correct, sir? 14 A. That is what -- 15 Q. How does the plant superintendent say this problem 16 can be solved, sir? 17 A. By distillation. 18 Q, And he says that is a solution to the problem, 19 doesn't he, sir? 20 A. He does indeed. Q. Now, he may be wrong, may he not, sir, as you are attempting to say what it might do is not remove it all, but reduce it, correct, sir? A. Correct, sir. I think you are absolutely right. 126 1 Q. But what he has said at that time in 1955 is that 2 the solution to a trichlorophenol containing TCDD didn't even 3 know it was TCDD at the time, but trichlorophenol that 4 Monsanto produces contains this chloracne agent which you 5 knew in 1957, did you not, sir, was TCDD, isn't that correct, 6 sir? 7 A. Correct, 8 Q. And the trichlorophenol that Monsanto produces, 9 that is this contaminant in it, and by distilling the 10 trichlorophenol, Monsanto's plant superintendent at Nitro 11 believed could solve the problem, correct, sir? 12 A. That's what the memo states. 13 Q. And he urged, did he not, or he recommended that 14 this solution be proceeded with as rapidly as possible? 15 A. No, he didn't say that, sir. 16 Q. Didn't he ask -- 17 A, He said that we should use the new method we 18 developed for testing the various processes and the product 19 of the processes to determine whether or not the acnegenic 20 agent is removed. 21 Q. And what you determined, then, Doctor, you did work 22 with this distilled product, didn't you, sir, the distilled 23 2,4,5-T, didn't you, sir? 24 A. One of them was a distilled product, yes, sir. 127 1 Q. That's what you worked with, you worked with 2 Diamond Alkali's as well, didn't you? 3 A. We worked with a material prepared by Monsanto by 4 the Diamond Alkali method, but it was prepared in the lab, 5 sir. 6 Q* But what you discovered, sir, in using the 7 distilled 2,4,5-T that it does -- did not cause chloracne? 8 A. Caused less chloracne. 9 Q. Could you refer to the report, sir* Did you not 10 say that it did not cause chloracne? Didn't you tell the 11 commission that? Doctor, haven't we gone through it a number 12 of tiroes? 13 A. No, sir. 14 Q. You pointed out a number of times that the 15 recrystalized -- 16 A, If you'll allow me to find it, sir -- 17 Q. May I finish, please? The recrystalized -- the 18 distilled 2,4,5-T did not cause chloracne? Doctor, if you 19 look at Page 32 again where we have been so many tiroes, and 20 33, where you say we have not been able to induce acne in 21 humans with 2,4,5-T, Page 33, didn't you say that, sir? 22 A, That isn't what we are talking about, sir. We are 23 talking about the Diamond Alkali distilled product. 24 Q. No, we are talking about the 2,4,5-T distilled from 128 1 Monsanto, that's what we are talking about. 2 A, I am utterly confused. We were talking about the 3 4 Q. No, we were not. We were talking about the 5 process. The man says distillation of 2,4,5-T will solve the 6 acne causing problem. Do you recall that, sir? 7 A. But we are talking about the two other processes. 3 Q. Doctor, do you recall that, sir. 9 MR. HEINEMAN: Object, Your Honor. May counsel 10 approach the bench? 11 THE COURT: Sure. 12 (The following Side Bar conversation was had outside the 13 hearing of the jury.) 14 MR. HEINEMAN: This statement by Mr. Carr, he said 15 that the man said the distillation of 2,4,5-T, is what Mr. 16 Carr just said, that isn't what the man said here at all. He 17 said distillation of trichlorophenols, and I object to the 18 statement as being misleading and incorrect and 19 misrepresentation of what this exhibit says, 20 MR. CARR: 2,4,5-T is a trichlorophenol just like 21 all of these are. 22 MR. HEINEMAN: Wrong. Orthochlorophenol is not a 23 trichlorophenol. 24 MR. CARR: It's a chlorinated phenol. 129 1 THE COURT: I've listened to the whole thing, 2 listened to the context, nothing misleading said. Your 3 objection is overruled. Let's get an answer. 4 (The following proceedings were had in open court.) 5 Q. (by Mr. Carr) Doctor, didn't you tell the 6 commission that 2,4,5-T that had been distilled in Monsanto 7 process did not cause chloracne? 8 A. Yes, I did say that, sir. 9 Q. Doctor, we have been over the business of the 10 Diamond Alkali process before, have we not, sir? And we have 11 examined on that and I could read your prior testimony to 12 you, but you are aware of what you said earlier about the 13 Diamond Alkali product, did you not, sir? 14 A. Yes. 15 Q. And all that you found with the Diamond Alkali 16 product was some capillary debilitation and lympholytic 17 paravascular reaction which become more prominent during the 18 last two weeks of the application in two subjects. The 19 follicular plugging was negative, isn't that correct, sir? 20 A. I would have to look at my report about that 21 material in order to verify that, sir. 22 Q. Doctor, you made -- 23 A. Do you have a copy of that? I'd be happy to -- 24 Q. Do you have your report of December 10th, 1957 that 130 1 you gave to the society in Chicago? 2 A. That's not the report I'm talking about, sir. I'm 3 talking about the report of the study. 4 Q, Doctor, this is the report of the study. 5 A. The report of the study which is the only report I 6 will depend, on. 7 Q. You wouldn't depend on what you reported to the 3 American Academy of Dermatologists at the symposium? 9 A. That's a summary report and I would like to look at 10 and have you look at -- verify it -- 11 Q. My question is would you not depend upon that and 12 what you reported to these people? 13 A. I wouldn't depend upon that for details, sir. 14 Q. Well, Doctor, the point of the examination is that 15 whatever it might do, Monsanto did not put the process into 16 effect, did they, sir? 17 A. I don't know, sir. 18 Q. Doctor, you've seen the exhibit that I gave you 19 that showed the levels of TCDD in the 2,4,5-T being produced 20 by Monsanto during the Fifties and the Sixties, have you not, 21 sir? It's right in front of you. 22 A. X have it. 23 Q. Sir? 24 A. Yes, sir, it's right here. 131 1 Q. Contains TODD up to 55 parts per million, doesn't 2 it? 3 A. One report of 55 parts, the rest are below. 4 Q. Is that a yes to my question, Doctor? 5 A. That is a yes to your question, sir. 6 Q. Thank you, Doctor. It contained TCDD from levels 7 of ranging from the low of 5 parts per million, to a high of 3 55 part per million, does it not, sir? 9 A. That's what the report reads, sir. 10 Q. You also know that all during those years the 11 Monsanto employees were still getting chloracne, you know 12 that, too, don't you, sir? 13 A. I believe some of them were, sir. 14 Q. No, all the employees in the department were 15 getting chloracne, weren't they, sir? 16 A. No, sir. 17 Q. Hand you what's been marked Plaintiff's Exhibit 18 1758, sir, Dr. R. Emmet Kelly was the physician for Monsanto, 19 was he not? 20 A. I believe he was. 21 Q. And he's the person there taking care of the 22 chloracne cases and other problems that might occur at Nitro? 23 A. No, sir. 24 Q. Well, he was in charge of it, wasn't he, sir? 132 1 A. No, sii:r he was not. 2 Q. What was his position? 3 A. He was the corporate medical director of the 4 company. They had a plant physician who took care of the 5 problems. 6 Q. He was the corporate medical director for the 7 company, for the entire company, wasn't he, sir? 8 A. I believe so. 9 MR. CARR: And I'll offer this exhibit into 10 evidence, if it please the Court. 11 MR. HEINEMAN:' Counsel approach the bench? 12 A. May I ask the date? 13 MR. HEINEMAN: Whoops, hold it. 14 MR. CARR: The answer is 1965. 15 (The following Side Bar conversation was had outside the 16 hearing of the jury.) 17 THE COURT: You did offer this? 18 MR. HEXNEMAN: We would object to this exhibit. 19 The witness is not an author, the witness is not a 20 recipient. Isn't even mentioned it in. There as been no 21 foundation, no testimony, nothing to establish the 22 admissibility of this document in court, and I object to it. 23 MR. CARR: It's been identified as the document 24 prepared by the corporate medical officer for Monsanto, It's 133 1 part of the materials produced to us by Monsanto. It's part 2 of their records pursuant to the order of this Court. 3 MR. HEINEMAN: Not been identified as a document 4 prepared by the medical director. This witness can't know 5 that. He's identified who Emmet Kelly is. 6 MR. CARR: The document is self-speaking. 7 THE COURT: Objection is overruled. 8 (The following proceedings were had in open court.) 9 MR. CARR: Pass the exhibit to the jury as well? 10 THE COURT: Yes, you may. 11 (Exhibit passed to the jury) 12 Q. (by Mr. Carr) Doctor, this exhibit states, does it 13 not, the question whether or not there are any employees in 14 the department who don't have chloracne already? 15 A. That's what it states. I don't know what 16 department that means, though. 17 Q. Doctor, was there more than one department at Nitro 18 where chloracne was the result of the workers working there, 19 other than -- other than the department dealing with 2,4,5-rT? 20 A. There were several buildings, sir. 21 Q. I know that, but they are all in the same 22 department. Is there any -- were there any workers other 23 than the 2,4,5-T department that got chloracne? 24 A. I don't believe so. 134 1 Q. Doctor, in point of fact, the main building that 2 was looked at was Building 34, wasn't it, sir, where they 3 packaged and worked with the 2,4,5-T? 4 A. By 1965 I don't know what building was used, sir. 5 Q. Well, you do know that following your survey in 6 1953 in which you made certain recommendations about hygiene 7 and things of that sort that take place in order to cut down 8 chloracne, you do know that another survey took place, don't 9 you, sir, in 1956? 10 A. Yes, I do, sir. 11 Q. And you do knov; that as a result of that survey, / 12 your laboratory examination group or inspecting group found 13 that the conditions were exactly the same as they had been 14 except for a screen or something being removed or placed, did 15 you not, sir? 16 A. No, sir. 17 Q. You don't know that, sir? 18 A. No, that's not an accurate description of it, sir. 19 Q. I hand you what's been marked Plaintiff's Exhibit 20 1759, ask you if you recognize that as the survey by your 21 environmental group in January of 1956? 22 A. Is a reproduction. 1759 is a reproduction of a 23 report carried out by the industrial hygiene group from the 24 Kettering Laboratory on Building 34 at the Monsanto Chemical 135 1 Company 2 Q, That was the only building surveyed/ wasn't it, 3 sir? 4 A. Sorry? 5 Q. It was the only building surveyed, wasn't it, sir? 6 A. That was the only building surveyed, however, they 7 8 HR. CARR: Offer Plaintiff's Exhibit 1759 into 9 evidence, please the Court. 10 THE COURT: Any objections? 11 MR. HElNEMAN: Your Honor, may counsel approach the 12 bench for a minute? 13 THE COURT: Sure. 14 (The following Side Bar conversation was had outside the 15 hearing of the jury.) 16 MR. HEINEMAN: I just want to be sure, Your Honor, 17 that the record is clear. First of all, we have no objection 18 to this document being admitted into evidence. 19 THE COURT: Fine. 20 MR. HEINEMAN: Other than we want to be sure -- you 21 remember the continuing objection to Nitro and all of that? 22 THE COURT: Oh, sure. Oh, sure. 23 MR. HEINEMAN; When we say no objection, we are not 24 eliminating that running objection. 136 X THE COURT: That's what I have done for the whole 2 duration of this. I understand. 3 MR. HEXNEMAN: Then we have no objection 4 THE COURT: Okay. Before we go into this, we will 5 take a short break. 6 (The following proceedings were had in open court.) 7 THE COURT: Fine, it's admitted without objection. 8 We will take a short recess at this time and then we will 9 resume testimony. The admonishments that I've given you 10 earlier will apply during this break also. Court is in 11 recess. 12 (Following a recess, these proceedings were had in open 13 court.) 14 Q, (by Mr. Carr) Doctor, at the break we were 15 discussing Plaintiff's 1759 that is entitled Report On 16 Environmental Survey carried out in Building 34 of Monsanto 17 Chemical Company in Nitro, correct, sir? 18 A. It does, sir, yes. 19 Q. And the last paragraph on the first page, it says, 20 does it not, "Except for minor changes and the elimination of 21 the Alsop filter, the operations in Building 34 were found to 22 be exactly as they were in April of 1 9 5 3 is that correct, 23 sir? 24 A. That's what it says, sir. 137 1 1 Q. And on Page numbered three in their discussions 2 they, it is said, is it not, "A comparison of the findings 3 and the present survey were those obtained in 1953 indicate 4 that the concentrations of dust and vapors in Building 34 5 have not changed appreciably," does it not, sir? 6 A, That's what it reads, sir 7 Q. Now, Doctor, with regards to the Diamond Alkali 8 method and whether or not it produced chloracne, you do 9 recall, don't you, sir, that we asked you questions earlier 10 here about your testimony in the Federal Court in Charleston, 11 West Virginia, with regard to your interpretation of your 12 tests concerning the Diamond Alkali substance? 13 A. Yes, I believe you have, sir 14 Q. And you did testify in the Federal Court, did you 15 not, sir, that Diamond Alkali substance which was the Diamond 16 Alkali procedure prepared trichlorophenate did not produce 17 any chloracne, you did so testify, didn't you, in that 18 Federal Court case, sir? Doctor, to help you, let me show 19 you your testimony, 20 A. I have it here, sir. 21 Q. So you can move from the point which has once been 22 established. On Page 27201, Counsel, beginning at Line 9 on 23 that page, did you not say the Diamond Alkali would not 24 produce any chloracne? 138 1, A. Yea, we did. 2 Q. And did you not also say on Page 27202 at Line 11 3 that the material, the diluted material which was the method 4 of Diamond Alkali did not produce any chloracne with the 5 method that we used, did you not say it at that point, sir, 6 under oath in the Federal Court? 7 A. Yes, we did, sir. 8 Q. Now, Doctor, I'd like to move to a -- your study on 9 the 2,4,5-T by inhalation. I think it's Plaintiff's Exhibit 10 1756, and I'd like to pass to the jury, Your Honor, copies of 11 that exhibit which has been admitted into evidence. 1756* 12 MR. HEINEMAN: This is the study? 13 MR. CARR: A copy of a report. Exhibit 1756, 14 Counsel. 15 MR. HEINEMAN: It's not a copy of a report. Have 16 we got the wrong exhibit? 17 MR. CARR: It is a report of Monsanto's, not Dr. 18 Suskind's, dated November the 3rd, 1955. 19 MR. HEINEMAN: Memorandum of the meeting? 20 MR. CARR: Yes, that's correct. 21 Q, (by Mr. Carr) Now, Doctor, the jury has a number 22 of poor copies, just as we have, I would like to explain 23 that these are all taken from microfilms and not from 24 original documents. That's the reason they are poor copies. 139 X (Exhibit passed to the jury) 2 Q. (by Hr. Carr) Doctor, with respect to the second 3 series of experiments that you mentioned earlier today where 4 you did the inhalation of 2,4,5-T material, you understand 5 that, sir? 6 A, I see it here, sir. 7 Q. That was of the 2,4,5-T dust, was it not, sir? 8 A. Yes* 9 Q. You volatilized 2,4,5-T, did you not, sir? You 10 turned it into a volatile vapor? 11 A. That was a dust, sir, a dust is different than a 12 vapor 13 Q. Didn't you volatilize some 2,4,5-T, sir, for 14 purposes of inhalation? 15 A. X don't have the report here, sir, so I can't tell 16 you, but what this does is to -- 17 Q, Excuse me, Doctor, my question is, did you not in 18 your second experiment which you did not make a written 19 report on, did you not work with volitilized 2,4,5-T and 20 Halowax? 21 A. Sir, the only indication I have is that we used the 22 dust here, that's what it reports, it reports a dust, not a 23 vapor. 24 Q. Did you work with volitilized 2,4,5-T? 140 1 A* I really can't remember, sir, because I don't have 2 the report before me, 3 Q. Well, Doctor, you didn't make a report if you 4 recall on the volitilized 2,4,5-T, did you, sir? 5 A No, we did not, 6 Q. But what you did do, you reported that that work 1 and that experiment orally to people at Monsanto, didn't you, 3 sir? 9 A. Yes, this was a progress report, 10 Q. And you never reduced that second group of 11 experiments to writing, did you, sir? 12 A. Pardon, what was the question? 13 Q, You never reduced that experiment, the results of 14 that experiment to writing, did you, sir? 15 A. I can't say that we did, we probably had many notes 16 on it, but whether or not it was put into a formal report X 17 can't tell you, sir* 18 Q, Well, you testified this morning that you did not 19 put it in the form of a report, didn't you, sir? 20 A, We didn't submit any report on it, yes, sir. 21 Q. But you did tell orally the people at Monsanto, 22 didn't you, sir, Dr. Kelly among others? 23 A. Those who were present at that meeting, sir. 24 Q. Well, didn't you have a discussion with Mr. Weger 141 1 and Mr. Soden and Dr. Kelly about your volatilization work? 2 A. Yes, well, the volatilization work, I can't tell 3 you about, I know -- 4 Q. Turn to the last page of Exhibit 1756, sir. 5 A. 1756, okay. 6 Q. One that has the -- you can barely make out the 7 letterhead says Monsanto Chemical Company, you see that, sir? 8 A. The last page, sir? 9 Q. The last page where it says, "In discussion." 10 A. I have it, sir. 11 Q, "In discussion with Dr. Suskind," do you see that, 12 sir? 13 A. Yes, I do. 14 Q. It is signed by Dr. Kelly or at least his name 15 appears below there, does it not, sir? 16 A. Yes. 17 Q. And his initials R.E.K,, that's Dr, R. Emmet Kelly, 18 is it not, sir? 19 A, Yes. 20 Q. Doctor, you described there the experimental 21 production of your last years work on experimental production 22 of chloracne, don't you, sir? 23 A. Yes, we do. 24 Q. You couldn't cause it with either the Halowax or 142 1 2.4.5- T. Now, that's your first study, correct, sir, because 2 it was the diluted, rather the 5 percent 2,4,5-T and 5 3 percent Halowax, isn't it? 4 A. That's true. 5 Q. Goes on to say when you applied the 20 percent 6 Halowax to the forearm they developed the chloracne, correct, 7 sir? 8 A. Correct. 9 Q. And then you used a 20 percent recrystalized 10 2.4.5- T on humans, two of them up to 36 days and nothing 11 happened, correct, sir? 12 A. That's true, sir. 13 Q. And then it says they did some generalized repeat 14 work with the volatilization of 2,4,5-T and Halowax, you see 15 that, sir? 16 A. Yeah. 17 Q. Sir? 18 A. Yes, I see it, sir* 19 Q. Says, "In neither case did they get any skin 20 trouble but they did get systemic damage with both 21 compounds. Almost all with the 2,4,5-T developed a 22 pneumonitis. There was some liver trouble." Correct, sir? 23 A. Correct, sir. 24 Q. Now, sir, what happened there was that they didn't 143 1 get chloracne, did they, sir, when they breathed in the 2 volitilized 2,4,5-T? 3 A, Well, animals usually don't get chloracne. 4 Q. Excuse me? 5 A. No, they didn't get chloracne. 6 Q. Well, there was a worker -- there were workers 7 involved in this experiment as well, were there not, sir? 8 A. Humans in the inhalation experiment, no, sir. 9 Q. Yes? 10 A. No, sir* 11 Q. Doctor, says right there on that very page, "An 12 interesting sideline was that the worker who was exposed to 13 volitilized Halowax developed a chloracne of his arm, isn't 14 that what it says? 15 A, He was working with it, sir. 16 Q. Excuse me, isn't that what it says? 17 A. But not by inhalation. He contacted it, sir. This 18 is what we said. This laboratory worker who was working with 19 Halowax got chloracne on his arm. It has nothing to do with 20 the volatilization or the dust, sir. 21 Q. Well, Doctor, you are talking about the humans that 22 were exposed. You are talking about the study in this entire 23 paragraph. You are talking about your human study, aren't 24 you, sir? 144 1 A No, we are not, sir. We are talking -- 2 Q. Doctor -- 3 A, Let me finish, sir, may I? You are asking me to 4 finish. 5 Q. Yes, please. 6 A. And I will. We are -- in this memorandum there is 7 a description of the initial work which was done with 20 8 percent Halowax and distilled or recrystalized 2,4,5-T in 9 humans. 10 Q. Yes. 11 A. And we each were able to produce chloracne in those 12 subjects -- 13 Q. No, you didn't produce chloracne in those subjects 14 with recrystalized 2,4,5-T on humans, 15 A* Not 2,4,5-T but with Halowax. Let me finish. We 16 were not able to do it with the recrystalized 2,4,5-T, but 17 what this also says, what this also says is that the repeat 18 work with the volatilization of 2,4,5-T and Halowax in 19 animals -- 20 Q. Where does it say that, sir? Did I miss a word 21 there? 22 A. We didn't do any -- 23 Q. Where does it say in this report that you are 24 talking about animals? 145 1 A. In the rest of this report, sir, in the rest of 2 this report. 3 Q. Doctor, those are two separate reports? 4 A. They are not. They are the same thing. 5 Q. Doctor, if you look -- 6 A. May I finish? 7 Q. No, you may not, sir. 8 A. Well, I'd like to. 9 Q. If you look at the first page, you are talking 10 about, Presents Suskind, Fan, Kelly, Lesslie, Soden, and 11 Weger. 12 A. Correct. 13 Q. In the first page of Exhibit 1756. In the last 14 page, you are talking about a discussion with Suskind, Weger, 15 Soden and Kelly, aren't you, sir? They are two different 16 meetings that you have had, sir, they are not the same 17 meetings. The first memo is completed and signed by Mr. 18 Weger, the -- the second -- 19 A. I'm only talking about 1756. 20 Q. Yes, you have 1756, which is a memo concerning two 21 or three experiments, is it not, sir? The first page is a 22 meeting -- 23 A. It clearly says two experiments here, sir. 24 Q. That's right. 146 1 A. That's all we described. 2 Q. But the last page clearly describes three 3 experiments, doesn't it, sir? Unable to cause chloracne on 4 any animal with Halowax or 2,4,5-T? 5 A* That's the 5 percent. 6 Q. Yes, that's one. Applied 20 percent to the forearm 7 of humans, five out of five got it. You used 20 percent 8 recrystalized 2,4,5-T on humans, didn't get anything. That's 9 two, correct, sir? 10 A. Correct. 11 Q* Then -- Period. They did some generalized repeat 12 work with the volatilization of 2,4,5-T and Halowax, correct, 13 sir, number three? 14 A. That's right. 15 Q. So we got thre experiments that's discussed on this 16 last page, don't we, sir? 17 A. That is number two, sir. 18 Q. Excuse me, sir, we had three experiments discussed 19 on page number -- on this last page? 20 A. The first two are described up here in one. 21 Q. Could you answer my question? 22 A. There are only two experiments. 23 Q. Doctor, could you answer my question, please, sir? 24 A. I said there were two, not three. 147 1 Q. Coaid you answer my question? 2 A. What is the question? 3 Q. There are three discussed on this last page, aren't 4 there? 5 A. No, there are two discussed on the last page, 6 Q. Doctor, you told us earlier, if you recall, that 7 you had experiments with animals and the diluted 2,4,5-T and 3 the diluted Halowax, recall that? Number one. And then you 9 had a last report that you reduced to writing, you got two 10 studies that you reduced to writing, number one and number 11 three, correct, sir? Do you recall that, sir? There were 12 three experiments. This one with the inhalation of the 13 volitilized 2,4,5-T and Halowax you did not reduce to 14 writing, isn't that correct, sir? 15 A. We did not describe in a final report the 16 inhalation experiments. 17 Q. You had three experiments, didn't you, sir? 18 A. Well, the -- if you want to split hairs, sir, we 19 had three experiments. 20 Q. No, Doctor, it's not splitting hair3, there are 21 three experiments. You describe your inhalation by your 22 acnegens to the dust of 2,4,5-T, and the first two pages of 23 Plaintiff's Exhibit 1756, don't you, sir? 24 A. The volatilization and the dust experiment is the 148 X same experiment* 2 Q. Could you answer my question? 3 A. I am answering it, sir* 4 Q* You describe the dust inhalation on Pages 1 and 2 5 of this exhibit? 6 A, I didn't describe it, Mr* Weger did, sir* 7 Q. That experiment is described on Pages 1 and 2, 8 isn't it, sir, of 1756? 9 A. That's the same experiment that is described in the 10 last page* 11 MR. CARR: Your Honor, would you direct the witness 12 to answer my question? 13 THE COURT: Doctor, you have not answered the 14 question. It's been asked about four times. None of your 15 answers have been responsive. Listen to the question and 16 answer the question that's been asked of you. 17 Q. Doctor, you describe an inhalation of dust 18 experience with the animals, don't you, sir, on page numbered 19 2 of this exhibit? 20 A. It is described. I didn't describe it, yes. 21 Q, It says animals exposed to 2,4,5-T dusted coughing 22 and nausea, correct, sir? 23 A. Right. 24 Q. And, Doctor, there are three experiments described 149 1 on the last page# Isn't there, sir? Two human and one 2 animal? 3 A. Yes, two human and one animal. 4 Q. Doctor, would you answer my question, please, 5 directly? I don't want to get on another bypass. There are 6 three experiments described on this page, third page, has no 7 number, isn't that correct, sir? 8 A. There are three results described there, yes, sir. 9 Q. Three experiments described, sir? 10 A. Three studies, yes. 11 Q. And your first experiment is cause -- trying to 12 cause the chloracne in the animals, correct, sir? 13 A. On Page 3, sir? 14 Q. Yes, sir. You say in brief they were unable -- you 15 don't say it, Dr. Kelly says, "In brief, they were unable to 16 cause chloracne in any animal either with Halowax 1014 or 17 2,4,5-T," correct, sir? 18 A. Correct. 19 Q. However, they applied 20 percent Halowax 1014 to 20 the forearm of humans, you are talking about humans now 21 right, sir? And the total of 2 to 5 or 8 grams, can't make 22 mine out, five out of five of these developed chloracne 23 starting with the second day, right, sir? 24 A. Correct. 150 1 Q. They then used 20 percent recrystalized 2,4,5-T on 2 humans, correct, sir? 3 A. Yes. 4 Q. That's another experiment, right, sir? 5 A. Well, it's the same experiment, sir. 6 Q. Isn't that right, sir? 7 A. It's Halowax. 3 Q. Aren't they discussing the fact that you used the 9 20 percent, sir? 10 A. Yes, but they -- but the Halowax and recrystalized 11 were the -- 12 Q. Were the same experiment, that's correct, and 13 that's different than the first one described about the 14 chloracne in animals, so you've got the 5 percent and the 20 15 percent, don't you, and they are both described in this first 16 ten lines of this memo, aren't they, sir? 17 A. Where is the 5 percent, sir, in animals? 18 Q. Yes. 19 A. Yes. 2.0 Q. Then, Doctor, you go on to say they did some 21 generalized repeat work, don't you, sir? 22 A. Yes. 23 Q, Describing another experiment, correct, sir? 24 A. Correct. 151 1 Q. With the volatilization of 2,4,5-T and Halowax, 2 correct, sir? 3 A. Correct* 4 Q* Doctor, wherein does it say there that this repeat 5 work with the volatilized 2,4,5-T and Halowax was done with 6 animals? 7 A. Well, we wouldn't have dared -- 8 Q. Excuse me, Doctor, maybe you wouldn't have dared 9 but you put it on the skin of human beings, you-- I don't 10 want to get on this* Doctor, whether you would dare or not, 11 where do you say in this memo that these are animals that you 12 are talking about and not human beings? 13 A. I don't say that in a memo, sir. Dr. Kelly says 14 that and it happens to be animals. We didn't do inhalation 15 experiment in human beings* 16 Q. Where does it say, sir? 11 A. It's in my 1956 report to the commission. 18 Q. It's in your 1956 report to the commission? 19 A. I believe so, 20 Q. You worked with volatilized -- please find it for 21 me, please, sir. 22 A* It's on Page 28 and 29, sir, and 30 and up to 31, 23 sir, that is described. You want me to read it? 24 Q. No, Doctor, what I read there is the experiment 152 1 that you were discussing about the inhalation and ingestion 2 of Halowax, the very first experiment that you did, sir, that 3 you described a number of times, and that is described on the 4 first page of Plaintiff's Exhibit 1756, you in no place there 5 described this as volatilized 2,4,5-T, do you, sir, in his 6 testimony before the commissioner? 7 HR, HEINEMAN: Objection, Your Honor. May counsel 3 approach the bench. 9 THE COURT: Sure. 10 A. Yes, we do. Sorry 11 (The following Side Bar conversation was had outside the 12 hearing of the jury.) 13 MR. HEINEMAN: Your Honor, this is about the third 14 time that Mr. Carr, who has these documents in front of him, 15 is representing to this witness and to the jury by 16 questioning that this witness has not done something that a 17 document that he has in his hand demonstrates occurred. And 18 here -- 19 THE COURT: Show it to me. 20 MR. CARR: I'm looking at 28 and 29. Counsel, are 21 you -- 22 MR. HEINEMAN; Page 108. 23 MR. CARR: The witness didn't say 108, did he. 24 MR. HEINEMAN: But you told him it isn't in the 153 1 record at all 2 THE COURT: Wait a second. Wait a second. Let me 3 read what you just gave me. 4 MR. CARR: Doesn't say anything about it, counsel. 5 MR. HEINEMAN: We didn't get the human subjects. 5 We didn't dare get them to ingest or inhale. 7 MR. CARR: That's right. There is no question 8 about that, counsel, v/e are talking about volatilized 9 2,4,5-T. 10 MR. HEINEMAN: He says he didn't have the humans 11 inhale the 2,4,5-T. 12 THE COURT: Wait a second. Wait a second. 13 HR. CARR: Talking about volatilized, Counsel, not 14 ingested and not inhaled. 15 MR. HEINEMAN: What do you think they are inhaling, 16 iron pipes? 17 MR. CARR: Not volatilized, it's dust. They are 18 eating the dust. They are inhaling the dust. 19 MR. HEINEMAN: For God's sakes, Rex. As I recall 20 21 THE COURT: Wait a second, I want to check 22 something back here. Okay. Either of you have anything more 23 to say? 24 MR. HEINEMAN: Your Honor, I'd like to read into 154 1 the record a portion of the testimony that I'm referring to, 2 the question on cross examination, "Now getting down to the 3 tests that you made first on a variety of animals, later on 4 human beings, did I understand you to say that no chloracne 5 was developed by those tests? Answer: In the animals, yes. 6 Very unfortunately for us they didn't react. Question: The 7 human beings, did they react? Answer: Yes, they did. That 8 is by skin application. We didn't get the human subjects -- , 9 we didn't dare get them to ingest or inhale,n Thank you. 10 THE COURT: Anything you want to say. 11 MR. CARR: No, that's obviously referring to the 12 first experiment in July 1954, we are now discussing one they 13 did not report on either the commission or anybody else which 14 he volatilized. Talking ingestion and inhaling and I'm 15 talking about volatilized 2,4,5-T and volatilized Halowax, 16 which is totally different than ingestion and inhalation of 17 2,4,5-T or Halowax. 18 THE COURT: I think there is material on Page 109 19 that supports that. Your objection is overruled. 20 (The following proceedings were had in open court.) 21 Q. (by Mr. Carr) Doctor, so that we can get 22 everything straight, it is the July 1954 study which you did 23 with the animals, your report with the animals, is it not, 24 sir? 155 1 A. Only the skin study, sir* 2 Q. Doctor, isn't that the report that you made with 3 the animals? 4 A. I said -- 5 Q* Isn't that -- 6 A. Yes, but only of the skin study 7 Q. Now, Doctor, the description of your animal tests 8 both in the front page of this exhibit, the second page of 9 this exhibit, is ingested or inhaled 2,4,5-T or Halowax, 10 isn't it, sir? 11 A. Halowax or recrystalized 2,4,5-T, sir 12 Q. Isn't that right, sir? 13 A. Yes. 14 Q. And your -- it's not the tests with the end product 15 2,4,5-T, is it, sir? 16 A. No, sir. 17 Q. And, Doctor, ingesting and inhaling the dust, that 18 2,4,5-T, is not volatilization, is it, sir? 19 A. Inhaling is from volatilization. 20 Q. Doctor, you can inhale dust or you can inhale 21 vapors? 22 A. Right. 23 Q* When you are talking about ingestion and inhaling 24 here, you are talking about the inhaling of the dust, are you 156 1 not, sir? 2 A. Yes, we are talking about the inhaling of the dust. 3 Q. All right. Now, Doctor, back to Page 3 of this 4 Exhibit 1756, you are talking about volatilization of 5 2,4,5-T, aren't you, sir, and volatilization of Halowax? 6 A. Yes. 7 Q. And the volatilized and volatilization it's turned 8 into a gas, isn't it, sir? 9 A. That would be the usual meaning of it, sir, yes. 10 Q. Doctor, both you and Dr. Kelly are scientists, you 11 would use the word volatile and volatilization in the way 12 that the usually meant, would you not, sir? 13 A. Yes, but I don't know whether or not he's talking 14 about dust. 15 Q. Please just answer my question if you would, sir? 16 A, Sure, I'd be happyvto. 17 Q, When scientists talk about something being 18 volatilized, they mean it's turned into a gas, don't they, 19 sir? 20 A. Usually, sir, a vapor, 21 Q. Or a vapor? 22 A. Right, a vapor. 23 Q. And it said here that when they were exposed to 24 this volatilized 2,4,5-T, they got systemic damage, did they 157 1 not sir, pneumonitis and liver trouble? 2 A. Yes. 3 Q. Doctor, the worker -- there was one worker that got 4 chloracne as well, correct? 5 A. From handling the material, sir. 6 Q. I'm sorry, sir? 7 A. From handling the material. S Q. Where -- Doctor, where does it say that? 9 A. From the volatilization Halowax. 10 Q. Where, Doctor, where does it say that? n A. ttAn interesting sideline was that the worker who 12 was exposed to the volatilized Halowax developed chloracne on 13 his arm." That's by contact, sir. 14 Q. Doctor, how would you get an experiment with people 15 other than exposing them to the volatilized Halowax? 16 A. He was working in that area, sir. 17 Q. Excuse me, could you answer my question, please, 18 sir? Could you answer my question, please, sir? 19 A. He was working with the volatilized Halowax, right, 20 and by contact. 21 Q. Doctor, did you understand my question? 22 A, I did indeed. 23 Q. How would that person who you were going to work 24 with or experiment with volatilized 2,4,5-T, Halowax, you 158 1 would have to inhale it would you not? 2 A. No, sir, not in this instance* 3 Q. Doctor -- 4 A. I remember this man, sir* 5 THE COURT: Doctor, just answer the question, 6 please. What you are saying is not responsive to it. Mr. 7 Carr, you may proceed. 8 Q. (by Mr. Carr) Doctor, if you performed an 9 experiment and had humans inhale volatilized 2,4,5-T or 10 simply let their arm be volatilized 2,4,5-T, they would 11 indeed be exposed to the vapor now, wouldn't they, sir? 12 A. By contact, sir, yes. 13 Q. They would be in contact with the vapor, wouldn't 14 they? 15 A. They'd been in contact with the vapor, yes, sir, 16 and that's what I'm saying. 17 Q. Doctor, you don't know whether or not these people 18 inhaled this volatilized 2,4,5-T or not, do you, sir? 19 A. They weren't people. There was one man, sir. 20 Q. Well, -- 21 A. He was an assistant, a lab assistant. 22 Q. Where does it say this was not an.experiment with 23 human beings, Doctor? The way I read it -- 24 A. I can tell you. 159 1 Q. Excuse me# could you -- 2 A. It was not an experiment with human beings. 3 Q. Could you let me finish my question# Dr. Suskind 4 once if you would# please# sir? i 5 A. Please. 6 Q. You say# do you not# they then used 20 percent 7 recrystalized on humans# two of them# up to 36 days and 8 nothing happened. They did some generalized repeat work with 9 volatilization of 2,4#5-T and Halowax in neither case# and 10 that would be referring to the 2#4#5-T in Halowax# wouldn't 11 it, sir? In neither case did they get any skin trouble, but 12 they did get systemic trouble with damages with both 13 compounds? 14 A. Those are the animals# sir# yes. 15 Q, Dr. Suskind# haven't you really learned by now 16 you've been in the Federal Court# you've been before the 17 commission# you've been here# that my question didn't ask you 18 for that particular response# did it# sir? I asked you 19 whether or not it said that# didn't I# sir? Didn't I, sir? 20 A. Would you repeat your question? 21 Q. Didn't I ask you whether or not it said that? 22 A. Said what# sir? 23 Q. In neither case did they get skin trouble but they 24 did get systemic damage with both compounds# isn't that 160 X right, sir? 2 A. Correct. 3 Q. The word they, sir, talks about animals or humans? 4 A. Talks about animals, sir. 5 Q. Oh, does it, sir? 6 A. Clearly. 7 Q. The last word you used with reference to they? 8 A. I didn't use this, this is Dr. Kelly's memorandum, 9 sir. 10 Q. I understand that. Doctor. 11 A. I'm not responsible for this memorandum. Dr. Kelly 12 was. 13 Qi Doctor, but you are responsible for the systemic 14 damage that was done through the volatilized 2,4,5-T, aren't 15 you, sir? 16 A. In the animals, sir. 17 Q. But we have no report, do we, sir, to test the 18 correctness of whether or not there were animals involved in 19 this experiment, do we, sir? 20 A. I believe that ray reference to the hearing after 21 the Workman's Compensation Commission and I've quoted that 22 repeatedly verifies that, sir, before a court of law, 23 Q. Doctor, didn't you say in the Federal Court that 24 you didn't submit a report to Monsanto on Page 27194, were 161 1 the results of that work recorded to anyone at Monsanto, and 2 your answer was, we didn't submit an official report? 3 A* Correct. 4 Q. Doctor, was there any record of this third 5 experiment whatsoever? 6 A. By the third experiment you mean the inhalation 7 experiment? 8 A. That's right, the volatilization experiment? 9 A. Yes, there was. There was a ledger record of it. 10 Q. Where is that ledger record, sir? 11 A. It's thirty years ago or more and X have no idea. 12 Q. And we cannot test whether or not humans were 13 involved or not, can we, sir? 14 A. Yes, sir, we can indeed. 15 Q. And where is the record that allows us to test your 16 statement, sir? 17 A, My recollection of it as a scientist I can tell 18 you. 19 Q. Doctor -- 20 A. Let me finish. 21 Q. Do you understand I'm asking whether or not there 22 is any documentary evidence by which we can test that which 23 you say is fact? Is there any documentary evidence in 24 existence regarding this experiment, sir, whether it included _______________________________________________________________ 162 1 animals or whether it included humans as well? 2 A. There is this record and the workman's compensation 3 hearing record, sir* 4 Q. Doctor, the workman's compensation hearing record 5 refer to the animals in a number of places, it did not refer 6 to volatilization, it referred to ingestion and inhalation of 7 2,4,5-T, isn't that correct, sir? 8 A. Inhalation is volatilization. 9 Q. Isn't that correct, sir? 10 A, But volatilization has to be done for inhalation. 11 Q. Doctor, isn't that correct, sir? 12 A. What is correct, sir? 13 Q. Could you read my question, please. 14 (Court Reporter read the previous question.) 15 A. No, sir, it's not correct, sir. 16 Q. Doctor, if you'll turn to the second page of this 17 exhibit, didn't you agree with me earlier, sir, that you are 18 talking about inhalation of the dust in that experiment? 19 A. Talking about inhalation of dust and 20 volatilization. 21 Q. Where does it say that, sir, on that page? 22 A. It doesn't say that it on that page. 23 Q. Where does it say it on any page, sir? 24 A. Says animals exposed to 2,4,5-T dust had coughing, 163 1 nausea, tearflow, all during the exposure. The 2,4,5-T was 2 volatilized. 3 Q. Doctor, what I asked you was to point out to me on 4 any page where it describes this as volatilization and not 5 dust, not just dust? 6 A. Well, volatilization process -- 7 Q. Excuse me, did you understand my question? 8 A. Yes, sir. 9 Q. Would you point out for me on this page or any page 10 where you are discussing this work with the animals as being 11 with volatilization and not with dust? 12 A. Volatilization is the dust, sir. 13 Q. Doctor, I thought you said volatilization was a 14 vapor? 15 A. Right, but in that chamber -- 16 Q. Vapor is not dust? 17 A. But in the chamber -- 18 Q. Excuse me, Dr. Suskind, is vapor dust? 19 A. No. 20 Q. All right, Doctor. 21 A. The only way we were able -- 22 Q, I didn't ask for this continued question, I asked 23 whether or not vapor was dust. 24 THE COURTi The question has been answered, 164 1 Doctor 2 A, Sir? 3 THE COURT: Doctor, the question has been 4 answered You may continue 5 A. The vapor became the dust 6 THE COURT: Doctor, didn't you just understand that 7 X considered the question answered and that Mr. Carr was 8 supposed to go on to the next question? 9 A. Yes 10 MR. CARR: Could you instruct the jury to 11 disregarded? 12 THE COURT: The jury is so instructed 13 Q. (by Mr. Carr) Doctor/ dust is not vaporf is it/ 14 sir? 15 A. No. 16 Q. Dust is solid particulates in small size/ is it 17 not/ sir? 18 A. Correct. 19 Q. Vapor is a liquid form or gas form, isn't it, sir? 20 A. No, it's a gas form. 21 Q. Vapor is liquid suspended in the air, isn't it, 22 sir? 23 A. It might be, yes. 24 Q. What else might it be? 165 1 A It might be a gas 2 Q Might be a gasr but it is not solid particulate, is 3 it, sir? 4 A, It might become so, sir. 5 Q. Sir, did I ask you whether or not it might become 6 so? When it condenses it might become solid, might it not, 7 sir? 8 A. Sure. 9 Q. Any vapor if it condenses might become solid, might 10 it? 11 A. Yes, sir, That's what happened in this chamber. 12 MR. CARR: Your Honor, could you ask the witness -- 13 just ask the jury to disregard this statement. 14 THE COURT: Sure. Jury is so instructed. Dr, 15 Suskind, at least a half dozen times today you've insisted on 15 answering things that have not been asked of you and 17 volunteering statements. Now I am requesting you as a 18 professional and as a gentleman not to continue doing so. 19 You've been disobeying this Court's orders and doing it 20 blatantly. I'm asking you to refrain from doing it any 21 more. You understand, sir? 22 A. Yes, sir, 23 Q. Dr. Suskind, you do understand that I may, by the 24 questions that I asked you, give an absolute wrong impression 166 1 or false impression to the jury or to the Court and that if I 2 do that we have something called redirect* Your lawyer, 3 Monsanto's lawyer, has the opportunity to ask you questions 4 and if at that time you want to say vapor turns into dust, 5 you may do so. Do you understand that, sir? 6 A* Yes, sir. 7 Q. Do you understand that I can never finish my cross 8 examination of you if you go beyond the question that I asked 9 you? You understand that? 10 A, Yes, sir. 11 Q. You understand that Monsanto -- they always ask 12 redirect questions. You'll have every opportunity to explain 13 for three weeks, if you want to, sir, every little iota that 14 you want to explain. Do you understand that, sir? 15 A. Yes, sir. 16 Q. Now, Doctor, there is another report or 17 circumstance that took place regarding the human health 18 effects of these workers that we have not yet discussed, 19 isn't that correct, sir? 20 A. I'm not sure I know what you are referring to. 21 Q. The psychoneurotic effects that were discovered by 22 Monsanto with respect to these workers. Do you have the 23 letter dated, or rather the report of November 18th, 1955, in 24 front of you, the exhibit number I'll give you in a minute. 167 1 A* 1754, I have that. 2 Q. Dated November 18th, 1955? 3 A. *55, yes, sir. 4 Q. Starts out, "November 17, Mr. McClain and I.." 5 A. Yes. 6 Q. Referring to that particular report which we went 7 through earlier, let me find my other copy of it, if you 3 would wait a moment. On the Page numbered 3, if you'll refer 9 to it, sir, and the first, second, third, fourth paragraph on 10 page numbered 3, Doctor, it says, does it not -- first of 11 all, the paragraph right before that stated that Dr. Suskind 12 -- "McClain and I discussed our," and that would be Mr. 13 Weger, would it not? 14 A. Yes. 15 Q. "Discussed our problem with Mr. Bowles," that's 16 your attorney, and Mr. A. G. Stone at their offices, that 17 would be the lawyers offices, would it not, sir? 18 A. Yes, sir. 19 Q. So you went from the commission over to the 20 attorney's offices, didn't you, sir? 21 A. That's what the memorandum reads, sir. 22 Q. And you -- there again you discussed the findings 23 of a Dr. Nestmann, did you not, sir? 24 A. Yes. 168 1 Q. Now, and you -- Dr. Nestraann reported or found that 2 most of the employees that he had examined had 3 psychoneurosis, did he not, sir? 4 A. No, sir, that's not how it's stated. 5 Q, Doesn't it say, "We discussed the findings of Dr. 6 R. H. Nestmann concerning psychoneurosis in most of the 7 employees he has examined for us?" 3 A. That's correct, sir. 9 Q. You are saying that of the employees he has 10 examined most of them have psychoneuroses, has he not, sir? 11 A. That could be inferred from that, but I'm not 12 altogether sure that is a logical conclusion. 13 Q. Doctor, I'm not asking you to use your logic, what 14 I'm asking you to do is, didn't you -- doesn't this memo 15 state that the psychoneuroses that Dr. Nestmann found in most 16 of the employees that he examined was discussed? 17 A. Yes, I believe that is what the memorandum says. 18 Q. And Mr. Stone, that's one of the attorneys, is it 19 not, is apprehensive as to the implications that may be drawn 20 if this is submitted as evidence, says that, too, doesn't it, 21 sir? 22 A, That's what it reads, sir. 23 Q. Now, if it's submitted as evidence in the 24 compensation commission hearing, correct, sir that was the 169 1 subject of this discussion, was it not, sir? 2 A I assume that that's what he meant, sir. 3 Q. And the implications would be that the commission 4 could decide that these employees have been made 5 psychoneurotic by the substance to which they had been 6 exposed, is that correct, sir? 7 A. Not necessarily, sir. 8 Q. Isn't that the logical conclusion if you want to 9 use your logic, sir, of the fear of Mr. Stone, the attorney 10 for Monsanto? 11 A. No, sir. 12 Q. What other thing could he be fearful of, sir? 13 A. The possibility that the people who had been 14 affected by the exposure but now improving significantly 15 physically, that is, they could still be concerned about 16 their problem that would also lead perhaps to a 17 psychoneurotic, which is not neurological, it's a behavioral 18 problem, a psychoneurotic consequence. 19 Q. Now, Doctor, I submit to you, you haven't answered 20 my question. What would he be fearful -- what are the 21 implications which he would be, he would fear would be drawn 22 if Dr. Nestmann's report is submitted as evidence? 23 A. I don't know, sir. 24 Q. To the compensation commission? 170 1 A* I'm not sure, because I don't know what the 2 commission or others would -- how they would regard Dr 3 Nestrnann's findings* 4 Q Doctor, what you do know is that the Plaintiff's 5 attorney at the commission hearing spent a considerable 6 amount of time examining you on the subject of the fears, the 7 apprehension, the psychological outlook of these men that had 8 been exposed, did they not, sir? 9 A. He did, sir 10 Q. And Dr. Nestmann's report was not submitted as 11 evidence, was it, sir? 12 A. I don't know. 13 Q. Do you have any knowledge that it was, sir? 14 A. No, I have no knowledge about that. 15 Q. Now, Doctor, you and the attorneys all read that 16 paper obtained from Dr. Nestmann, didn't you, sir? 17 A. Yes, we did. 18 Q. And you followed a suggestion that you could get an 19 opinion from a Dr, Ross, a psychiatrist at Kettering 20 Laboratory, isn't is that correct, sir? 21 A. Correct, sir, 22 Q. Did you get an opinion in writing, sir? 23 A. I don't believe so. 24 Q. Did you get paid for getting the opinion from Dr. 171 1 A. Not recently, sir* 2 Q. Doctor, did you have any memos written down about 3 this meeting that you perhaps have been able to refer to? 4 A. I don't have any memos about this, sir. 5 Q. All you've had since the day before yesterday and 6 today is a period of time, correct, sir? 7 A, Correct. 8 Q. Have you conferred with counsel in that period of 9 time? 10 A. No, sir. 11 Q, You haven't talked to them at all in that period of 12 time? 13 A. I have, but not about this. 14 Q. You haven't talked to them about this at all, about 15 your experimental results, sir? 16 A. About my experimental results, but not about this, 17 not about the memorandum. 18 Q. Doctor, tell me what in your experimental results 19 -- assume this is hypothetically correct, sir. Assume that 20 you did do as this memo says that you did, could you tell us, 21 please, what there is or could possibly be in these 22 experimental results that could be used to effectively .defend 23 Monsanto's position? 24 A. I have no idea, sir, because it's not an accurate 49 1 statement 2 Q. Doctort I don't want -- Your Honor, would you ask 3 the witness to respond to my question? 4 A. I think I have, sir. 5 THE COURT: No, that was not responsive. Listen to 6 it again. I'll have the Court Reporter read it and listen to 7 it again, especially the first part. It was not responsive 8 to the question. 9 COURT REPORTER: "Doctor, tell me what in your 10 experimental results -- assume this is hypothetically 11 correct, sir. Assume that you did do as this memo says that 12 you did, could you tell us, please, what there is or could 13 possibly be in-these experimental results that could be used 14 to effectively defend Monsanto's position?" 15 A. Again, I don't know. 16 Q. Doctor, let me suggest to you that you did use some 17 of the experimental results to defend Monsanto's position 18 before the compensation hearing. Do you recall that you did 19 do that, sir? 20 A. I recall that I explained the experiments, sir. 21 Q. Doctor, you -- 22 A. It's written up quite clearly. 23 Q. Doctor, you used the experimental results, you 24 discussed the experimental' results before the Compensation 50 1 Commission at the time you appeared in behalf of Monsanto, 2 did you not, sir? 3 A. I did indeed discuss those results. 4 Q. All right. And, it was used -- it was used to 5 defend Monsanto's position, wasn't it, sir? 6 A. I don't know. 7 Q. Doctor, you do know that you discussed with counsel 3 and Mr. Paul Bolles was the attorney for Monsanto, was he 9 not? 10 A. I believe so, sir. 11 Q. You discussed the aspect of these chloracne claims 12 and litigation with that lawyer, did you not, sir? 13 A. I imagine 1 did, sure. 14 Q. You testified at the hearing and answered questions 15 put to you by Monsanto's counsel, did you not, sir? 16 A. Yes, sir. 17 Q. And in response to those questions you described 18 these experimental results, did you not, sir? 19 A. I did indeed. 20 Q. And, Doctor, then in front of the commission you 21 testified to a number of things, didn't you, sir? 22 A. I believe so. 23 Q. Now, you told them that in your experiments with 24 2,4,5-T, the end product 2,4,5-T, you could not produce 51 1 chloracne, didn't you, sir? 2 A. I told him that we could not -- 3 Q. Could you answer my question, please, sir? 4 A. Yes, I did indeed. 5 Q. Yes, you did. You told them that you applied the 6 2.4.5- T itself to humans. You told them that we have not 7 been able to induce acne in humans with 2,4,5-T, did you not, B sir? 9 A, With distilled 2,4,5-T, yes, sir. 10 Q. Oh, Doctor, you didn't tell them -- we went through 11 this once and I don't want to go through it again. You did 12 not tell them that it was distilled 2,4,5-T did you, sir? 13 A. It was pure 2,4,5-T, 14 Q. Doctor, my question -- I know it was pure 2,4,5-T 15 with the contaminant, with the TCDD removed, but the 16 commission did not know it because you didn't tell them, 17 isn't that correct, sir? 18 A. Didn't tell them what, sir? 19 Q. That it was pure 2,4,5-T with the TCDD or the 20 contaminants, whatever you conceived them to be, removed? 21 A, That was taken for granted, sir, it was pure 22' 2.4.5- T.. 23 Q. Doctor, ray question is you did not tell them that 24 was pure 2,4,5-T, did you, sir? 52 1 A. Not I didn't explain it that wayf that's correct. 2 Q. Doctor, my question is you didn't tell them that, 3 you told them that it was the final product in the operation, 4 didn't you, sir? 5 A. 2,4,5-T, yes. 6 Q. That's what you told them, you applied to these 7 men, didn't you, sir? 8 A. No, I said 2,4,5-T. 9 Q. Turn to page -- you didn't tell them it was the end 10 product? 11 A. Well, 2,4,5-T is the end product. 12 Q. But it's not the recrystalized, sir? 13 A. We weren't interested in the end product, we were 14 interested in the recrystalized because we wanted to find out 15 whether or not 2,4,5-T itself applied in a five percent 16 mixture would cause chloracne, and we found it did not. 17 Q. Doctor, but what you told them on Page 51 -- well, 18 2,4,5-T and I think we had to again say that 2,4,5-T is the 19 final product of this operation in which we were involved, it 20 is a specific chemical, trichlorophenate, sodium 21 trichlorophenoxy acetic acid, this is the weed killer that is 22 used all over the world, isn't that what you told them, sir? 23 A. That's right. That's what I told them. 24 Q. And so you led them to believe that the 2,4,5-T you 53 1 were working with was the 2,4,5-T.that the -- was packaged by 2 these workers and shipped out around the world, isn't that 3 correct? 4 A. No, sir. No, sir, 5 Q. Doctor, where did you tell them that it was 6 recrystalized or purified 2,4,5-T? 7 A, It's not so stated, but that's what it was, sir. . 8 Q. Doctor, I know that's what it was and that's the 9 whole point of the thrust of these questions that I'm asking 10 you, sir, is that you knew that it wasn't the end product 11 2,4,5-T that goes out around the world that you used, but 12 nowhere did you tell the commission that it was the -- that 13 it was not that which you studied, isn't that right, sir? 14 A. Yes, sir, but we did tell them about -- 15 Q. Excuse me, sir. The question is did you tell them 16 about the end product? You told them that you tested the end 17 product and that it did not cause chloracne, isn't that 18 right, sir? 19 A. We tested -- 20 Q. Excuse me, would you answer the question the way I 21 put it to you, Dr. Suskind? 22 A. That's what we told them, sir. 23 Q. Yes. Doctor, they made their decisions based upon 24 what you told them, didn't they, sir? 54 1 A. No, sir. 2 Q. Did they have some other expert from Monsanto or 3 some other scientist to tell them that 2,4,5-T, the end 4 product, does in fact cause chloracnes you knew that it 5 caused? Did they have somebody tell them that, sir? 6 A. I don't know whether there were other hearings 7 about this, sir, so I can't tell you whether or not. It was 8 my testimony. 9 Q. You have no such knowledge, do you, sir? 10 A. No, but I assume that there were -- 11 Q. You would assume that somebody would come in and 12 tell them the truth about what was tested, is that what you 13 are saying? 14 A. No, that isn't what I'm talking about. 15 Q. Doctor, you know you didn't tell them the truth, 16 did you? 17 A. I did, too, .1 told them trichlorophenate does 18 cause chloracne and it's in that. Why don't you read this to 19 the jury? 20 Q. That's not the end product, is it? 21 A. No, but that's what causes the chloracne. 22 Q. But that's not the end product? 23 A. That's what causes the chloracne, and I told them 24 the truth. 55 1 Q. Could you answer my question? 2 A. I am answering the best way I know how* 3 Q. Trichlorophenate is not the end product, is it, 4 sir? 5 A. But it's found -- 6 Q* Doctor -- 7 MR* CARR: Would you direct the witness to answer 8 the question? 9 THE COURT: Doctor# the question is clear* It's 10 been put to you a couple times. Answer the question. 11 Q. Trichlorophenate is not the end product# is it, 12 sir? 13 A. No, it's not the end product# but it's one of the 14 materials. 15 MR. CARR: Your Honor, would you ask the jury to 16 disregard the last statement? 17 THE COURT: Jury is so instructed to disregard. It 18 is not responsive to the question, Doctor. I'm asking you 19 again just respond to the question that's asked of you. 20 Q. by Mr. Carr) Doctor, the trichlorophenate goes 21 through further processing before it becomes 2,4,5-T, doesn't 22 it, sir? 23 A. It does indeed. 24 Q. It is possible that the further processing could 56 1 remove the contaminants* isn't it* sir? 2 A* It could. 3 Q* As a matter of fact, you know that if you reprocess 4 -- if you process trichlorophenate* if you further distill 5 it* that it can be purified and that the chloracne agent in 6 it can be removed* you know that* too* don't you* sir? 7 A. I believe to some degree it can be. 3 Q. Doctor* you know that because in fact you did it* 9 you -- Monsanto distilled the 2*4*5-T* the product that they 10 had* and it didn't cause chloracne when it was distilled as 11 you testified to* isn't that correct, sir? 12 A. No, sir. 13 Q. That isn't correct* sir? 14 A. It was less acnegenic. 15 Q. Doctor* you told us that it was not acnegenic, 16 distilled 2*4*5-T? 17 A. I said it was less. You said it was not. 18 Q. Doctor* could you point out where you said the 19 distilled 2,4*5-T was acnegenic? 20 A. Distilled 2,4,5-T? 21 Q. Yes. 22 A. We are not talking about distilled 2,4,5-T, we are 23 talking about trichlorophenate. 24 Q. No* Doctor* we are talking about the distilled 57 1 2.4.5- T, which is not -- 2 A, I'm sorry. 3 Q. Which is not -- 4 A. I'm sorry, we have not been able to communicate. 5 You are asking about the trichlorophenates? 6 Q. No, Doctor, I'm asking you -- I clearly asked you 7 -- I led up to it, I said you can indeed distill 2,4,5-T so 8 as to remove the contaminants and it will not cause 9 chloracne, isn't that correct, sir? 10 A. That's true. 11 Q. And that's -- in point of fact you could sell 12 2.4.5- T without the contaminants in it, could you not, sir? 13 A. I don't know, sir, I'm not a -- 14 Q. You know Monsanto gave you 2,4,5- T distilled that 15 didn't cause chloracne, isn't that right? 16 A. That was out of a laboratory. 17 Q. Excuse me, sir, you know that, don't you, sir? 18 A. Yes. 19 Q. You told -- the only thing you described to the 20 commission was that kind of 2,4,5-T, didn't you, sir? You 21 told them the end product 2,4,5-T is what you put on the skin 22 of these human volunteers, didn't you, sir? 23 A. Yes, sir. 24 Q. And you told them that that end product did not 58 1 cause chloracne, didn't you, sir? 2 A. The pure 2,4,5-T did not cause chloracne* 3 Q. Did you, sir -- 4 MR. CARR: Would you direct the witness to answer 5 the question? 6 THE COURT: Doctor, that was not responsive. 7 Q. You told them that the end product, the 2,4,5-T 8 that you put on these people's skin did not cause chloracne, 9 did you not? 10 A. That's true. 11 Q. Yes. You didn't tell them that the 2,4,5-T that 12 you put on the skin was the pure 2,4,5-T, did you, sir? 13 A. I don't recall. 14 Q. Look and see and refresh your recollection, sir. 15 Doctor, to help you, you have already testified in this case, 16 sir, before this jury on the 18th of February, 1986, on Page 17 65, that you did not tell the commission that the 2,4,5-T you 18 were working with was pure 2,4,5-T with the contaminants 19 taken out. Don't you remember you testified that way once in 20 front of this jury already, sir? 21 A. Page 56 of what, sir? 22 Q. Of your testimony here. Page 65, sir, of your 23 testimony here. Right there, sir. (Indicating) 24 A. I said I didn't have to tell them. 59 1 Q. Excuse me, would you read itr please. You said we 2 did not tell them. 3 A. May I read the answer. I said, "We did not, but 4 that's beside the point." That's what I said. Read the 5 complete answer. 6 Q. Doctor, my question is you did not tell them that 7 it was pure 2,4,5-T that you put on the skin of these 8 workers, did you, sir? 9 A. I will answer as I did before, no we did not, but 10 that's beside the point, sir. 11 MR. CARR: Your Honor, would you direct the witness 12 to answer my question directly. 13 THE COURT: Doctor, that was not a direct answer. 14 Answer the question directly. Listen to it closely. 15 A. I'm doing the best I can. 16 THE COURT: Doctor, that was not a direct answer. 17 I'm ordering you listen to it carefully and answer it 18 directly, sir. 19 Q. (by Mr. Carr) Doctor, you did not tell the 20 commission that you were working with pure 2,4,5-T with the 21 contaminants taken out, did you, sir? 22 A. I did not, sir, 23 THE COURT: Mr, Carr, is this a good point for a 24 short break? 60 1 MR. CARR: Yes, Your Honor. 2 THE COURT: We will take a short recess at this 3 time and then resume testimony. I would remind you you are 4 not to discuss this matter among yourselves, with anybody 5 outside the jury panel, or as of yet form any opinions or 6 conclusions about the matters on trial. Court is in recess. 7 (Following a recess, these proceedings were had in open 8 court.) 9 Q. (by Mr. Carr) Doctor, some time before you 10 testified in front of the commission, some representative of 11 the occupational disease part of the commission visited the 12 -- rather you and others from Monsanto had a meeting at the 13 workman's compensation in Charleston, did you not, sir? 14 A, Yes, I believe we did. Yes. 15 Q. And, there was a report made on that meeting dated 16 November the 18th, 1955, was there not, Dr. Suskind? 17 A. Yes, I believe there was. 18 Q. And on this meeting, you don't need any memory 19 refreshed do you, sir, because this is a copy of the report 20 that we had from your file that you brought here, is it not, 21 sir? You recognize it? Is that not a copy of a record of 22 that meeting, sir? 23 A. That is a copy of the record of that meeting made 24 again by a Mr. Weger. 61 1 MR, CARR: I'd like to offer that into evidence, 2 please the Court. 3 THE COURT: Any objections? 4 MR. HEINEMAN: Your Honor, may counsel approach the 5 bench? 6 THE COURT: Sure, 7 (The following Side Bar conversation was had outside the 8 hearing of the jury,) 9 MR, HEINEMAN: I don't think he's laid an adequate 10 foundation for the admission of this document, Your Honor, 11 and I will object to it on that basis. 12 MR. CARR: Well, an additional foundation is that 13 this is -- I also received a copy of this from Monsanto in 14 earlier discovery that they gave us. 15 THE COURT: It's got your C numbers on there. 16 Okay. 17 MR. CARR: This is part of the business records of 18 Monsanto, is it not, counsel? 19 MR. HEINEMAN: Well, that calls for ray legal 20 .conclusion. 21 MR. CARR: That calls for what you know as an 22 attorney in this court whether or not this is one of the 23 records of Monsanto which you've kept with regard to your 24 workings at Nitro, West Virginia, and which you supplied to 62 1 us pursuant to order of Court? 2 MR. HEINEMAN: This is a document that's been 3 produced to Mr. Carr by me, or by our office, and I think 4 it's incurabant upon Mr. Carr to establish a foundation from 5 the witness stand. And my position is he has not done that 6 and I object, Your Honor. 7 THE COURT; Objection is overruled. It's 3 admitted. 9 MR, CARR: Your Honor, we would like to pass it to 10 the jury at this time. 11 THE COURT: Yes, you may. 12 (Exhibit 1754 passed to the jury) 13 Q. Doctor, the memo describes the meeting that you -- 14 a person name of McClain and Mr. Weger, who's been mentioned 15 earlier of Monsanto had with the Occupational Disease Board, 16 isn't that correct, sir? 17 A. Yes, I believe that's so, sir. 18 Q. And, Doctor, on the second page, the large 19 paragraph in the middle of that page, it reports that Dr. 20 Brick inquired whether or not what the Board saw being 21 packaged was 2,4,5-T, and they were told that it was. Do you 22 see that, sir? Do you see that, sir? 23 A. Yes, sir. 24 Q. And what they saw being packaged would have been 63 1 the final end product 2,4,5-T that's going to be sold to the 2 public, is that correct, sir? 3 A. No, sir. 4 Q. Oh, no? 5 A. No. 6 Q. Why would they be packaging 2,4,5-T? 7 A. They would be packaging it for further 8 esterification before it was-- I think so, before it was 9 marketed, because you can't use the crude 2,4,5-T which is 10 called ringer cake, can't use that as a weed killer. You got 11 to esterify it, sir. 12 Q. And, Doctor, Monsanto would package ringer cake? 13 A. I believe they might. 14 Q. Why? What conceivable reason would they have? 15 A. So it could be esterified. 16 Q. Why would you need to package something to esterify 17 it? 18 A. It might go to a -- another company for 19 esterification. 20 Q. Doctor, you know it doesn't go to another company 21 for esterification, Monsanto sells its 2,4,5-T? 22 A. Sir, I really don't know what the -- the industrial 23 process is all about. I have no idea. But I do know that -- 24 Q. Doctor -- 64 1 A. That -- 2 Q. Doctor, you have no idea then, why would you 3 suggest that it's being packaged for some purpose other than 4 selling it? 5 A, I have no idea. 6 Q. Then you have no reason to make that statement 7 then, do you, sir? 8 A. No, I do. It could be that -- 9 Q. Doctor that -- 10 A. They are packaging it for further esterification. 11 Q. That is pure speculation on your part, absolute 12 pure speculation? 13 A. No, it isn't. 14 Q. Do you know they were packaging it for further 15 esterification? 16 A. Yes. 17 Q. What knowledge do you have? 18 A. I believe that that's what they did. 19 Q. My question is what knowledge do you have? 20 A. It is my recollection, sir, that that's what they 21 did. Now whether or not they packaged 2,4,5-T ester for 22 sale, X have no idea either, but I assume that they might 23 have done that. 24 Q. You say you have no idea either. You have no idea 65 1 on either then? 2 A. That is a phrase, it's a way of expressing myself, 3 sir 4 Q. Doctor, in point of fact, you were asked there 5 whether or not that -- or someone was asked whether or not 6 what was being packaged was 2,4,5-T, weren't you, sir? 7 A, Where is that in here? 8 Q. That first sentence, sir, on that paragraph they 9 inquired whether the material which the Board saw being 10 packaged on the plant tour was 2,4,5-T, and you were told it 11 was, you see that, sir? 12 A, Yes, sir. 13 Q. Right in the middle of the page? 14 A. Right. 15 Q* The Board was told that that was 2,4,5-T, correct, 16 sir? 17 A. Yes, sir. 18 Q. And then the Board was told that it was and then 19 the Board asked whether or not that was the. material that was 20 given to you for testing, correct, sir, is that correct, sir? 21 A. Yes it was, sir, that's how it reads. 22 Q. And sir -- 1 23 A. And I said that that was one of the materials, yes. 24 Q. You replied that that which was being packaged 66 1 which was 2,4,5-T was one of the materials that was submitted 2 to you for testing, correct, sir? 3 A, No, sir. No, sir, 4 Q, Doctor, isn't that what it says? He then asked 5 whether that was the material which was given to Dr, Suskind 6 for testing and Dr. Suskind replied that that was one of the 7 materials submitted? 8 A. If you take it literally, 9 Q, Doctor, if you would let me finish, please isn't 10 that an exact quote from this memo? 11 A, That is an exact quote. 12 Q. And wasn't that what was asked of you and wasn't 13 that what you replied, sir, to the best of your present 14 recollection? 15 A, No, sir. 16 Q. What was asked you to the best of your recollection 17 31 years later, sir, and what was your reply? 18 A. My reply was, yes, it was -- 19 Q. First of all, what was asked you, sir? 20 A. Was that the material 2,4,5-T, was that the 21 material given to me for testing, 22 Q. And what did you -- 23 A. Dr. Suskind replies that it was one of the 24 materials submitted, but that's the literal part of it. 67 1 Q. Was that your reply, sir? 2 A, Yes, it was, and we got 2,4,5-T. 3 Q. And that's what I asked you, if this is your best 4 recollection as to whether or not that was your reply to the 5 question asked? 6 A. Yeah, we got two kind of 2,4,5-T. 1 G. Dr. Suskind, it was your reply to the question 8 asked whether or not the material that they saw being 9 packaged was 2,4,5-T, whether or not that material was 10 submitted to you for testing, and you replied that it was? 11 A. Yes. 12 Q. Yes. Now, Doctor, when you testified one year 13 later, eight months later in -- I'm sorry, it was a year 14 later, November of 1956, the commission had you testify that 15 you tested the end product, isn't that correct, sir, and you 16 said you did? 17 A. Yes. 18 Q. And they would have believed, based upon what you 19 said, sir, that the material they saw being packaged was 20 2.4.5- T and that you had tested the 2,4,5-T, isn't that 21 correct, sir? 22 A. That's correct, sir. 23 Q. Yes. In point of fact, however, you did test the 24 2.4.5- T, the end product, didn't you, sir? 68 1 A. We did, 2 Q. In your July of 1954, you report on that, don't 3 you, sir? 4 A, Yes, sir 5 Q. And now your testing of the end product in July of 6 -- so you told them the truth, you did test the end product 7 2.4.5- T, correct, sir? 3 A, We did, 9 Q. The product at the end of the Monsanto process, 10 when they were -- they are going to send it out, you tested 11 that product, didn't you, sir? 12 A. We did, sir. 13 Q. And you told the commission in your testimony that 14 that didn't cause chloracne, didn't you, sir? 15 A. Yes, we did. 16 Q. And, in point of fact, I knew from your earlier 17 examination of the workers and from their history, that the 18 end product does cause chloracne, you knew that, didn't you, 19 sir? 20 A. No, sir. 21 Q. Doctor, you knew the workers simply hauling this 22 2.4.5- T got chloracne, you knew that, didn't you, sir? 23 A. I'm not sure that's the end product, though, sir, 24 we had no idea -- 69 X Q. Doctor, you -- 2 A. And we did test the end product 3 Q. Excuse me. Doctor. 4 A. it's in the report, sir. 5 Q. Excuse me, Doctor, the product that the workers 6 hauled in the plant was the 2,4,5-T, wasn't it, sir? 7 A. Yes, sir. 3 Q. And the workers who simply hauled the 2,4,5-T got 9 chloracne, didn't they, sir? 10 A. What are you reading from, sir? 11 Q. Doctor, could you answer my question? Does it make 12 a difference to the truth whether or not I'm reading 13 something or not, sir? 14 A. I have to verify what I'm answering, sir. 15 Q. I'm not asking you to verify that what I'm reading 16 is true or false? 17 A. But in order to give you an answer -- 18 Q. Would you read my question to the witness again 19 please? 20 COURT REPORTER: "And the workers who simply hauled 21 the 2,4,5-T got chloracne, didn't they, sir?" 22 A. No. 23 Q. Doctor, you testified in front of this jury on 24 February the 18th that they did -- that some of the them did 70 1 get chloracne. Now were you lying then* or are you lying 2 now? 3 A. No* it is not a lie/ sir. 4 Q. Doctor, did some of these workers get chloracne or 5 not that hauled the 2,4,5-T? A. In our '53 report -- 7 Q. Excuse me, Doctor, did some of them get chloracne 8 or not, the ones that simply hauled the 2,4,5-T? 9 A. No. 10 Q. Doctor , I ask you the question, this is Page 67 of 11 the February 18th transcript, and some of the workers who 12 simply hauled the 2,4,5-T got chloracne, didn't they, sir, 13 and your answer was some of them did, wasn't that your answer 14 at that time, sir, under oath then just like you are under 15 oath now? 16 A. I didn't say only two -- only hauling, and that's 17 what I'm asking you, that's what you are asking me. 18 Q. Could you read my question back to the witness, 19 please. And his answer. 20 COURT REPORTER: "Doctor, did some of these workers 21 get chloracne or not that hauled the 2,4,5-T? No. 22 Q. Doctor, which is the truth, did some of the workers 23 get chloracne who simply hauled the 2,4,5-T, or not? 24 A. The answer is no. 71 1 Q. And what you told this jury then on the 18th of 2 February was a lie? 3 A. No, sir, it's not a lie. I'm just clarifying it. 4 Q. Doctor, I asked you at that time, did X not, sir, 5 "And the workers who simply hauled the 2,4,5-T got chloracne, 6 didn't they, sir?" Do you recall I asked you that question? 7 A. No, I don't recall it, but if that's in the 8 transcript then it must be accurate. 9 Q. Your answer at that time was some of them did, 10 wasn't that your answer at that time? 11 A. Yes, sir. 12 Q. That was the truth then, wasn't it? 13 A. Yes, it was. 14 Q. So some of the workers who simply hauled the 15 2.4.5- T got chloracne, didn't they, sir? 16 A. No, sir. 17 Q. Doctor, would you read that question, and didn't I 18 just ask you that very same question? Read it out loud for 19 the jury what X asked you then and what your answer was then? 20 A. "Question; And the workers who simply hauled the 21 2.4.5- T got chloracne, did they, sir?" 22 Q. "Didn't they, sir?" 23 A. The answer is, "Some of them did." 24 Q. Wasn't that your answer? 72 X A Yes 2 Q Was that the truth? 3 A. That was the truth, 4 Q So some of them did get chloracne who simply hauled 5 the 2,4,5-T, correct, sir? 6 A, Wo, sir. 7 Q. Doctor, would you want to read your question again? 8 A. "And the workers who simply hauled the 2,4,5-T got 9 chloracne, did they, sir?" 10 Q. "Didn't they, sir?" 11 A. "Didn't they, sir?" 12 Q. Yes. 13 A. And the answer is, "Some of them did." 14 Q. So some of them did get chloracne who simply hauled 15 the 2,4,5-T, correct, sir? 16 A. No. 17 Q. Were you lying when you told us that they did? 18 A. NO. 19 Q. Were you telling us the truth when you told us that 20 some of the workers who simply hauled the 2,4,5-T got 21 chloracne? 22 A. Yes, 23 Q. So it is the truth then that some of the workers 24 who simply hauled the 2,4,5-T got chloracne, correct, sir? 73 1 A. No, sir. 2 Q. Didn't you answer on the 18th that some of them 3 did? 4 A. Yes, sir. 5 Q. That was the truth then? 6 A. It needs modification, sir. 7 Q. Was it the truth then, sir, simple, unvarnished, 8 plain, unmodified truth? Did you answer to the truth at that 9 time? 10 A. Absolutely, sir. 11 Q. Yes. And some of them did then, is that correct, 12 sir? 13 A. No, sir. 14 Q. Sir? 15 A. I said no, sir*. 16 .Q. Dr. Suskind, do you understand that if you are 17 telling, the truth then that you can't be telling the truth 18 now? 19 A. Yes, I can. 20 Q. You can be telling the truth when you say on the 21 18th some of them did get it and when on the 6th of March you 22 can say that they didn't get it, is that right, sir? 23 A. No, that's not what I'm saying. 24 Q. No, but Doctor, didn't you say on the 18th that the 74 1 workers who simply hauled the 2*4*5-T got chloracne* didn't 2 you say that* sir? 3 A. That's what I said. 4 Q. That was the truth* wasn't it? 5 A. When I said itf yes, 6 Q. Well* it was the truth then* the truth doesn't 7 change with passage of time* does it* sir? 8 A. If it needs an explanation* it does* sir* 9 Q. Excuse me* The truth doesn't change with passage 10 of time, does it* sir? 11 A* No* sir* 12 Q. The truth on February the 18th* is the truth on 13 March the 6th* isn't it* sir? 14 A. It is indeed* 15 Q. Yes. Doctor* you knew when you testified in front 16 of the commission that some of these workers who simply 17 hauled the 2*4,5-T got chloracne* didn't you* sir? 18 A. We did. 19 Q. Yes. You didn't tell the commission that however* 20 did you* sir? 21 A. I don't believe I was asked. 22 Q. Doctor, my question is you didn't tell the 23 commission that* did you, sir? 24 A. I don't believe I was asked* sir. 75 1 MR. CARR: Your Honor, would you direct the witness 2 to answer the question? 3 THE COURT: Doctor, that was not responsive to the 4 question. Please answer the question that was asked of you. 5 A. 1 did not. 6 Q. And, Doctor, you -- what you did tell them, 7 however, was that 2,4,5-T, the end product, doesn't cause 8 chloracne, didn't you, sir? 9 A. I did. 10 Q. Now, Doctor, you did perform this experiment that 11 you reported in July of 1984, didn't you, sir? 12 A. Right, 1954, sir. 13 Q. I'm sorry. 14 A. '54. 15 Q. Yes, '54. And, you couldn't get chloracne with the 16 end product 2,4,5-T you tested then, could you, sir, didn't 17 get it, did you? 18 A. We did test the end product, sir. 19 Q. Did you hear my question, Doctor? Did you hear my 20 question, sir? 21 A. Yes, sir, I heard your question. 22 Q. My question was, you did test the end product 23 2,4,5-T, did you not, sir? 24 A. Yes, we did. 76 X , Q. And you did not get chloracne with that testing, 2 did you, sir? 3 A, That's true* 4 Q* Sir? 5 A* That's true* 0. All right* Now, Doctor, and you put that in a 7 report, didn't you, sir, dated July 1st, 1954, isn't that 8 correct, sir? 9 A* I believe so* 10 Q. And, Doctor, at that time that you tested -- well, 11 let me put this in -- I hand you what's been marked 12 Plaintiff's Exhibit 1755 and ask you whether or not that is a 13 copy of your report of July 1st, 1954? 14 A. It is,.sir. 15 MR. CARR: I'll offer that into evidence, please 16 the Court. 17 MR. HEINEMAN: No objection, Judge, 18 THE COURT: It's admitted without objection. 19 Q. (by Mr, Carr) Now, Doctor, when you performed this 20 test, you performed what strength of 2,4,5-T, you've 21 testified earlier it was 5 percent? 22 A. Five percent, sir, in acetone, 23 Q. You also had a control there, didn't you, sir, a 24 knov/n chloracnegen, did you not, sir, Halowax? 77 1 A. Yes, sir, 2 Q. And you knew at that time that you tested this 3 product that Halowax does cause chloracne, doesn't it? 4 A, But not at that time, not with the concentration we 5 used, sir. 6 Q. That isn't what I asked you. You knew that Halowax 7 is a known acnegen, isn't it, sir, and was known then? 8 A. All depends on concentration. 9 Q, Doctor, at what you knew then and described Halowax 10 then as a known acnegen, did you not, sir? 11 A, We did, sir. That's why it v/as the control. 12 Q. Because you used it to see whether or not since you 13 know that it causes chloracne -- 14 A. It can. 15 Q. Well, it can, indeed it does, if you use it in the 16 appropriate fashion and appropriate concentration, correct, 17 sir? 18 A. You are absolutely right, the appropriate 19 concentration and this was not the appropriate concentration, 20 because it doesn't cause chloracne. 21 Q. If you just don't mind letting me ask the question, 22 you give the answer. 23 A. Please. I'll be happy to answer. 24 Q. My question was, you used it because it was a known 78 1 MR. CARR: I'm not sure now, the jury has the 2 copies. I had a note on it once. 3 Q. (by Mr. Carr) Now, Doctor, you used a five percent 4 solution of the end product 2,4,5-T, did you not, sir? 5 A. What experiment are you talking about, sir? 6 Q. Sir? 7 A. What experiment are you talking about? We did both 3 animal and human studies in this one. Which are you talking 9 about? XO Q. The humans. 11 A. Yes, sir. 12 Q, As a matter of fact, it was 5 percent solution all 13 the way around, wasn't it, sir? 14 A. Yes, sir. 15 Q. You used 5 percent solution with the animals and 5 16 percent solution with the humans, didn't you, sir, Pages 8 17 and 9 summarize your findings and state the applications that 18 you made. Doctor, it would be more convenient for you to look 19 there. 20 A. Yes, sir. 21 Q. You used five percent solutions, did you not, sir? 22 A, We did indeed. 23 Q. You did not get chloracne with the 5 percent 24 solution, did you, sir? 80 1 A. On human skin, right. 2 Q. You didn't get chloracne on the animal skins 3 either, did you, sir? 4 A. We used the end product there, too. 5 Q. Did you understand my question, Dr. Suskind? 6 A. Yes, sir. 7 Q. Could you answer my question, please, sir? You 8 didn't get it on the animal either, did you, sir? 9 A. That's quite true. 10 Q. You also used five percent solution of Halowax, the 11 icnown chloracnegen, did you not, sir? 12 A. Right, 13 Q. But it didn't get chloracne either, did it, sir? 14 A. Yes, it did not. It didn't induce chloracne, 15 right 16 Q. Sir? 17 A. It didn't induce at that concentration, 18 Q. That tells you that the concentration, five percent 19 of this known acnegen was not strong enough, was not 20 concentrated enough to cause that which you know Halowax can 21 cause, correct, sir? 22 A. Other factors too, sir. 23 Q, Excuse me. Could you answer that? 24 A. That's right, but there are other factors involved. 81 1 Q. Doctor -- 2 MR. CARRs Your Honor, would you ask the witness to 3 please again to respond to my question. 4 THE COURT: Doctor, what you said at the end was 5 not responsive to the question. I am asking you again to 6 respond just to the question that's asked. 7 A. Yes, sir. 8 Q. (by Mr. Carr) Doctor, in the fashion and manner 9 that you used this five percent solution to Halowax, it did 10 not produce acne, did it, sir? 11 A. Correct. 12 Q. But this was known throughout the scientific 13 community and yourself that Halowax does produce chloracne? 14 A. In higher concentrations, sir. 15 Q. Under appropriate circumstances, correct, sir? 16 A. Correct, 17 Q. But it didn't produce it here and neither did the 18 end product 2,4,5-T, correct, sir? 19 A. Right. 20 Q. Therefore, you can conclude nothing from your test 21 other than the concentration of a known chloracnegen wasn't 22 sufficient or the method that you used for this known 23 chloracnegen was not sufficient to produce chloracne, 24 correct, sir? 82 1 A* I think we said that in this report, sir* 2 Q. Isn't that a fact, sir? 3 A. That's true* 4 Q. So actually -- and your 2,4,5-T at the same 5 concentrations and apply in the same manner did not cause 6 chloracne, correct, sir? 7 A, Correct, sir. 8 Q. Now, Doctor, that really means-then that you have 9 not reproduced that which is necessary with the known 10 chloracnegen to cause for acne, correct, sir? 11 A. Correct, sir 12 Q* You haven't reproduced what might be necessary with 13 the end product 2,4,5-T to produce chloracne, isn't that 14 correct, sir? 15 A, That could be so, yes. 16 Q. There is no other conclusion that you can draw, is 17 there, sir? 18 A. Correct* 19 Q. So actually this tells you nothing about whether or 20 not 2,4,5-T can produce chloracne, does it, sir, you can't 21 conclude that it does or does not produce chloracne except 22 that you know at a level of 5 percent it doesn't cause 23 chloracne, but you also know at a level of 5 percent Halowax 24 doesn't cause chloracne? -- 83 1 A, Would you give me one question at the time so I 2 understand what you are talking about? One question at a 3 time. 4 Q. I think you can answer that one. 5 A. No, I can't. What is the question? 6 Q. Doctor, you know that the five percent Halowax 7 doesn't cause chloracne? You know the 5 percent 2,4,5-T 8 doesn't cause chloracne, isn't that right? 9 A. Correct. 10 Q. Correct, sir? 11 A. Correct. 12 Q. And also know that Halowax at greater 13 concentrations and applied in a different fashion will cause 14 chloracne, correct, sir? 15 A, Yes, we have shown that. 16 Q. So that -- you did show that in later experiments, 17 didn't you? 18 A. Yes, we did. 19 Q. But you didn't use the 2,4,5-T end product in your 20 later experiments, did you, sir? 21 A. No, we did not, Q, So v/hat you did you told the commission in 1956 that the test you performed with the 2,4,5-T end product did not cause chloracne but you failed to tell them at that time 84 1 that the way you use the test with the known acnegen, 2 chloracnegen, Halowax, it also did not cause chloracne, you 3 didn't tell them that, did you, sir? 4 A. I believe we did, sir, 5 Q. Look and see, sir, 6 A, On Page 32, sir, we said we have applied the known 7 acnegen like Halowax 1014, which is composed of hexachloro 8 and pentachloro naphthalene in concentrations of 20 percent 9 for periods of six weeks. We have applied 2,4,5-T in the 10 same concentration to whom subjects for the same period of 11 time. We have also applied other fractions evolved in the 12 2,4,5-T fraction such as sodium trichlorophenate, which is 13 produced in the initial phase of the synthesis and we found 14 that we can produce acne locally in humans with Halowax and 15 the trichlorophenate. 16 Q. At what concentration of the Halowax, Doctor, 5 17 percent? 18 A, No, 20 percent. 19 Q. Yes, Doctor. At 5, you didn't tell them this, did 20 you, sir, that when you compared the 2,4,5-T at 5 percent and 21 Halowax at 5 percent that you did not get chloracne, did you, 22 sir? That was my question, Dr. Suskind, what you told them 23 was your later experiments at 20 percent it got chloracne, 24 but you never did test the end product at 20 percent, you 85 1 test the sodium trichlorophenate at 20 percent not the 2 2,4,5-T, isn't that correct, sir? 3 A. That's the nature of the experiment* 4 Q. Excuse me, is that a yes to ray question that you 5 did not tell them that, sir? 6 A. They didn't ask that sir, no. 7 Q. Doctor, you didn't tell them that the Halowax at 5 8 percent just like the 2,4,5-T at 5 percent does not produce 9 chloracne, did you, sir? 10 A. I can't find it in here. 11 Q. Doctor, if you told them, it would be in there, 12 wouldn't it, sir? 13 A. It could be, yes, sir. 14 Q. No, it would be, not could be, Doctor? 15 A. But that would be of no importance* 16 Q. Doctor -- 17 MR. CARR: Your Honor, would you ask the jury to 18 disregard the statement because it is of the greater 19 importance, Doctor, 20 THE COURT: The jury is ordered to disregard it. 21 It is not responsive to the question. 22 THE COURT: Mr. Carr, is this a good point to break 23 for lunch? 24 MR. CARR: Sure. 86 1 THE COURT: All right, we will break for lunch. 2 Gentlemen, could I see you at the bench for a minute, 3 please? 4 THE COURT: Mr. Heineman? 5 MR. HEINEMAN: Yeah, I'll be right there, Your 6 Honor, I'm making a note. 7 (The following Side Bar conversation was had outside the 3 hearing of the jury.) 9 THE COURT: This witness again is going through 10 numerous times of volunteering things that are not responsive 11 to the question and. not responding to the questions asked, 12 such as this last example which was a totally uncalled for 13 remark. I am ordering you as an officer of the court again 14 to talk to him. I would like not to have a repeat of Tuesday 15 when in the morning I also asked you to talk to him in the 16 afternoon when he was bad or worse than he has ever been 17 before. I think you have to exercise some control over the 18 witness. His performance Tuesday was outrageous, not as bad 19 this morning, but he's still not responding to the questions, 20 and I have had to ask him to do so a number of times. I 21 would prefer not to have to do it again this afternoon. We 22 will break until -- and I haven't told the jury about the 23 11th, I'll tell them. We will break until 1:15. 24 (The following proceedings were had in open court.) 87 1 THE COURT: Ladies and gentlemen, we will break for 2 lunch now until 1:15. I don't think that I have told you 3 earlier, if I have, I'll just repeat it, that we will not be 4 able to hold Court on March 11th, and so mark that down, 5 please, if I haven't told you that already. 6 We will break until 1:15. The admonishments I gave 7 you earlier will apply during this break also. 8 (Following a recess for the lunch hour, these proceedings 9 were had in open court.) 10 Q. (by Mr. Carr) Doctor, referring back to the 11 conference commission hearing, you advised them, did you not, 12 that you got your chloracne from using the 20 percent 13 solution of Halowax, did you not, sir? 14 A. Yes, I did. 15 Q. And you told them that you applied the 2,4,5-T in 16 the same concentration as Halowax, didn't you, sir, but could 17 not get chloracne, didn't you, sir? 18 A. I don't believe I said that, sir. 19 Q. Look on Page 32 of your sworn testimony, Doctor. 20 A. 33, sir? 21 Q. 32. You said it, didn't you, Doctor? 22 A. Yes, 23 Q. It wasn't the truth, was it, Doctor? 24 A. I'm not really sure. I'll have to look at my 88 1 notes/ sir. 2 Q. Doctor, you applied five percent 2,4,5-T to the 3 human skin and did not get chloracne. You never applied 20 4 percent 2,4,5-T to the human skin, isn't that correct, sir, 5 except for the recrystalized 2,4,5-T that had the contaminant 6 removed, isn't that correct, sir? 7 A. That's what we were referring to, sir. 8 Q, Isn't that correct, sir? 9 A. That's what we were referring to. 10 Q. Excuse me. Could you answer my question? It is 11 the truth you did not apply 20 percent concentration 2,4,5-T 12 to the end product, the material the men worked with, to 13 human skin, did you, sir? 14 A. That's true, sir. 15 Q. But you told the commission that you did, didn't 16 you, sir? 17 A. Vie. said we applied 2,4,5-T itself and I believe 18 that in a previous hearing with the commission, we -- we 19 indicated -- 20 Q. Doctor, please don't refer me to any previous 21 hearing of the commission where I don't have any record of 22 it? 23 A. Oh, yes, you do, 1754. 24 Q. Are you referring to the meeting that you had a 89 1 year before with some members of the Board? 2 A. Yes, that was the commission, sir* 3 Q. Doctor, that was some members of the Occupational 4 Disease Board in which you had a meeting with them. It was 5 not a hearing in any sense of the word, was it, sir? 6 A. It was a meeting with them which we -- 7 Q. Excuse me, sir, it was not a hearing in any sense 8 of the word, was it, sir? 9 A. No, but we had an opportunity to discuss our 10 studies. 11 - Q. Indeed discussed a number of things? 12 A. I said we discussed our studies, sir, that's in Mr. 13 Weger's record. 14 Q. Indeed it is, Doctor, but the point that I'm making 15 with you, you did not in this hearing under oath at the time 16 the litigants had their -- claimants had their claims to be 17 litigated and decided, you did not tell the commission that 18 the 2,4,5-T that you applied was a 5 percent solution, did 19 you, sir? 20 A. I believe we referred to this on Page 33 and 34, 21 sir. 22 Q. Doctor, on 33 and 34 you discussed the sodium 23 trichlorophenate that you use, that you applied, not the 24 2,4,5-T. You say there that you've not been able to induce 90 1 acne in humans with 2,4,5-T and you do not advise them on 2 that page or any other page that it's a five percent solution 3 that you are working with that could not produce chloracne 4 just like the known acnegen Halowax in that same solution 5 could not produce chloracne, isn't that correct, sir? 6 A. We are talking about a different experiment, sir* 7 Q. Excuse me, would you answer that question, please, 8 sir? 9 A. Yes, we did. 10 Q. Where did you tell them it was a 5 percent 11 solution? 12 A. When I talk about 2,4,5-T I'm not referring to the 13 operation, I'm referring to the specific compound 2,4,5-T 14 trichlorophenoxy acetic acid. 15 Q. You are referring there to the recrystalized or 16 purified 2,4,5-T, aren't you? 17 A. Yes. 18 Q. My question refers to end product 2,4,5-T in the 19 five percent solution, you did not tell the commission that 20 that end product 2,4,5-T that you applied was a five percent 21 solution, did you, sir? 22 A. We had no occasion to, no, we did not. 23 Q. You did not, did you, sir? 24 A. We did not. 91 1 Q. There is no question but what it was the 20 percent 2 solution of recrystalized 2,4,5-T, there is no question about 3 that, is there, sir? 4 A. I 'll have to look. 5 Q. Mark this exhibit, please. Handing you now 6 Plaintiff's Exhibit 1756, ask you if that's not a memo dated 7 December 3, 1955, which refers to the recrystalized study 3 that you performed with a 20 percent solution of the 9 recrystalized 2,4,5-T? 10 A. Yes, it is. 11 Q, Doctor -- 12 MR. CARR: I'll offer that exhibit, Your Honor. 13 THE COURT: Any objections? 14 MR. HEINEMAN: Vihat1s the number? 15 THE COURT: 1756. 16 A. Excuse me, do you have a better copy of this? I 17 can't read this. 18 MR. HEINEMAN: May counsel approach the bench, 19 Judge? 20 THE COURT: Sure. 21 (The following Side Bar conversation was had outside the 22 hearing of the jury.) 23 MR, HEINEMAN: I 'm going to object to this, Your 24 Honor, on the basis that he hasn't laid a foundation with 92 1 this witness for its admission. I thought he asked the 2 witness if this was a report by him of -- 3 MR. CARR: No. 4 THE COURT: No, I think he just asked whether it 5 was a report about the meeting on the study. That's what you 6 asked? 7 MR. CARR: That's correct. Your Honor. 8 MR. HEINEMAN: Okay. Well, that being the case X 9 do object to it on the basis of the lack of foundation laid 10 with this witness for the admission of the exhibits. 11 MR. CARR: You do agree this is a Monsanto 12 document, do you not, sir, prepared by Monsanto in part of 13 their study? It's taken from your microfilms that you gave 14 us. 15 MR, HEINEMAN: I agree that this is a document 16 produced to Mr. Carr by Monsanto Chemical Company. 17 MR. CARR: And it was a part of the record of your 18 company, isn1t it? 19 MR. HEINEMAN: I'm not here to make the record for 20 Mr. Carr, Your Honor. If Mr. Carr wants to establish a 21 foundation through the witness then he may do so, and I 22 object on the basis that he has not. 23 MR. CARR: I think I've established an adequate 24 foundation with counsel, Your Honor. 93 1 THE COURT: Objection is overruled. 2 MR. CARR: It's a bad copy, but on the last page 3 it's got Monsanto Chemical Company. You can make it out. 4 THE COURT: Just barely, not the best copy in the 5 world, but it's -- I guess that's what we have got. Okay. 6 That's over your objection. 7 (The following proceedings were had in open court.) 8 Q. (by Mr. Carr). Doctor, I think you stated you do 9 recognize this as a memo pertaining to a meeting you attended 10 in which you discussed your testing of this recrystalized 11 2,4,5-T and other materials, isn't that correct, sir? 12 A. Yes. 13 Q. And such a meeting did take place, and the rest of 14 your knowledge -- this is a memo of that meeting, is it not, 15 sir? 16 A. To the best of my knowledge, it appears to be a 17 memo of that meeting, sir. 18 Q. All right. Now, Doctor, the essence of the 19 substance of your appearance before the compensation 20 commission in November of 1956 was to tell them that you 21 could not get chloracne with the end product 2,4,5-T, but 22 that you could get chloracne with the intermediate product, 23 that is sodium trichlorophenate, isn't that correct, sir? 24 A. Yes. 94 1 Q. And you at no time told them that you could get 2 chloracne with the end product 2,4,5-T in the 20 percent 3 concentration, isn't that correct, sir? 4 A. Well, I believe on Page 33 we do that, sir. 5 Q. Well, Doctor, on Page 33 you are either referring 6 to the 5 percent solution that you used in -- reported on 7 July of 1954 that the jury has in front of them, or you are 8 referring to the 20 percent recrystalized solution and not 9 the end product as the workers worked with it and as it's 10 sent out to the public, isn't that correct? 11 A. You are referring -- we are referring to specific 12 2,4,5-T. 13 Q. Would you answer my question? Would you read the 14 question? 15 (Court Reporter read back the previous question.) 16 A. You mean referring to both -- we are referring to 17 both, both 5 percent and 20 percent, the recrystalized 18 doesn't produce chloracne, that's what we said. 19 Q. No, Doctor, you didn't tell them anywhere that it's 20 recrystalized 2,4,5-T. 21 A. We say it's the specific compound which I infer 22 that's the pure compound, not the independent product. 23 Q. Are you inferring it's -- refer it's the pure 24 compound? 95 1 A. Specific -- may I read it? When I talk about the 2 2,4,5-T I'm not referring to the operation, I am referring to 3 the specific compound 2,4,5-T trichlorophenoxy acetic acid, 4 and we have not been able to induce acne in humans with that 5 specific compound. 6 Q. Doctor, don't you -- 7 A. It's quite clear in that statement, sir. 8 Q. Doctor, don't you recall that on Page 51 you are 9 talking about that it's the final product, on Page 52? 10 A. 2,4,5-T is the final product, but it's the pure 11 final product we are talking about. 12 Q. Oh, no, Doctor, the way Monsanto did it there is no 13 pure final product 2,4,5-T, is there, sir? 14 A. But we were interested in it. 15 Q. Excuse me. Was there, sir? 16 A, There is a final product, pure 2,4,5-T, if you make 17 it that way. 18 Q. Made by Monsanto in 1949, '53, '56, 1960, '65, '68, 19 was there any 2,4,5-T made by Monsanto which did not contain 20 TCDD? 21 A. X don't know, sir. 22 Q. Do you have any knowledge of any 2,4,5-T made by 23 Monsanto that did not contain TCDD? 24 A. I believe that there were -- there were, and this 96 1 was told to me, sir, that there were analyses of reserve 2 compound, reserve 2,4,5-T and some of them came up with less 3 than the detectable amount, which is equivalent to zero of 4 TCDD. 5 Q. Who told you and where is the document that tells 6 you that Monsanto ever made any 2,4,5-T that did not contain 7 TCDD in detectable levels? 8 A* I said I was told that, sir. 9 Q. You have no document to that effect? 10 A. No, I don't -- 11 Q. Documents we have -- you've seen the document that 12 we have on the production of 2,4,5-T by Monsanto, have you 13 not, sir? 14 A. I haven't seen your documents, sir. 15 Q. You have seen the documents made by Udell and 16 others and they have been in evidence and they will be in 17 evidence again showing that the 2,4,5-T produced by Monsanto 18 had TCDD in the levels of up to 55 parts per million, you do 19 recall that, don't you, sir? 20 A. I don't recall that bit of information, because I 21 haven't seen that information, sir. 22 Q. Doctor, we showed it to you during the course of 23 this trial, 24 A. You told it to me, sir. 97 1 Q. Well, 1*11 show it to you as we move along. 2 A. Well, may I see it, sir? 3 Q. Yes, you may. 4 A. Good. 5 Q. Have you ever seen any document that shows that the 6 2.4.5- T made by Monsanto had levels other than -- of TCDD 7 other than what I've told you, sir? 8 A. Oh, yes, sir. 9 Q. Where are those documents? 10 A. I don't have the documents, sir, but I was told 11 that there were -- 12 Q. Doctor, I asked you not what you were told, because 13 a lawyer or corporate officer or somebody in order to 14 influence you to a particular opinion could tell you 15 anything. I want to know have you seen the document? Have 16 you seen a record of what they in fact found in their 17 2.4.5- T? 18 A. I have not. 19 MR. HEINEMAN; Excuse me, Doctor, please. Your 20 Honor, may counsel approach the bench? 21 THE COURT: Sure. 22 (The following Side Bar conversation was had outside the 23 hearing of the jury.) 24 MR. HEINEMAN: I object again to one of the 98 1 interminable number of Mr, Carr's jury speeches that preceded 2 the question. I ask it be stricken. I ask the jury be 3 instructed to disregard it. 4 MR. CARR: Your Honor, the witness clearly was not 5 responding to my question. I asked him had he seen any 6 document. He persisted in telling us what someone told him. 7 I think my comments were called for and precipitated by what ,8 the witness said. 9 MR. HEINEMAN: Do I understand Mr. Carr's position 10 for the record to be that he's entitled to say anything he 11 wants in response to a response. 12 MR. CARR: I'm entitled to correct what the witness 13 says when he is misleading the jury. 14 MR. HEINEMAN: You are theone misleading the jury, 15 Mr. Carr and I object to it. 16 THE COURT: Objection is overruled. 17 (The following proceedings were had in open court.) 18 Q. (by Mr. Carr) Now, Doctor,.who was it that told 19 you the 2,4,5-T produced by Monsanto contains, contained no 20 TCDD? 21 A . What I said, sir -- 22 Q. Doctor, could you answer my question, please? 23 A. Dr. Roush. 24 Q. And when did Dr. Roush tell you that, sir? 99 1 A. I'm not sure of the date but I think when we asked 2 him it must have been at the time following our morbidity 3 study, 4 Q. Doctor, didn't he -- didn't you ask him in 1982 for 5 a report as to whether or not there was the levels of the 6 TCDD in the Monsanto product? 7 A, Yeah, I believe so. 8 Q. And didn't he send you a letter dated December of 9 1982, and it will come shortly, didn't he tell you, sir, that 10 there were always levels of TCDD in the product? 11 A, No, I believe in that letter, if my recollection is 12 correct, that there was some batches, reserve batches, in 13 which the level was below the sensitivity of the method., 14 Q, Now, Doctor, are you saying that he told you that 15 in a letter, sir? 16 A. Yeah, there could have been a letter to that. We 17 also discussed it on the phone. 18 Q. That's in another file at the office. But we will 19 get to that, Doctor. And, you believe he told you orally 20 then, and it's also in a document, that there were levels of 21 2,4,5-T where there was no TCDD? 22 A. If I recollect, not that there wasn't, but it was 23 below the level of detection. 24 Q. Doctor, can't be detected then it's not there? 100 1 A* No, that's not so. 2 Q. As far as you know, if you can't detect it, you 3 don't know that it's there? 4 A. It could be in a part, fraction of a part per 5 trillon and you couldn't detect it. 6 Q. That's speculating, isn't it? 7 A . No * 8 Q. Are you saying that they told you they produced 9 2,4,5-T from *48 to '69 that didn't have detectable levels of 10 TCDD? 11 A. No, they didn't do any analyses in *48 and *49, 12 sir, only in the fifties. 13 Q. You didn't understand my question. I asked you are 14 you saying that they produced, that you were told they 15 produced 2,4,5-T at Nitro during the period from '48 to '69 16 which did not contain detectable levels of TCDD? 17 A. Some batches. 18 Q. That's what you were told by Dr. Roush? 19 A. Yes. 20 Q. Or at least that's what you think now you were 21 told? 22 A. No, I can recall that, sir. 23 Q. And you believe it was also put in a document, sir? 24 A. That I can't recall whether it's in the document, 101 1 but I believe it is 2 Q. Well, Doctor, and even that is an aside we can 3 straighten that out and we can demonstrate to you when I get 4 that file. I didn't bring all the files with me, but we will 5 get to that and there is in evidence, it's by Udell, Jerry, 6 it would be about 1400 something. 7 MR. CARR: Your Honor, we will get to that later. 8 I don't have it right at the tip of my finger just right now, 9 but we do have it and we will demonstrate at that point. 10 Doctor, the substance you knew for practical purposes and 11 for, except if you insist upon a few isolated instances where 12 it was not detected, you knew that TCDD or this acne causing 13 contaminant was in the 2,4,5-T being produced by Monsanto, 14 did you not, sir? 15 A. If you are talking about the substance that caused 16 17 Q. That's what I'm talking about. 18 A. Yes, we knew that it could be there. 19 Q. But you did not report that to the commission, did 20 you, sir? 21 A. We didn't report what, sir? 22 Q. Just what I said to you, sir, you did not report to 23 the commission that the end product 2,4,5-T contains this 24 acne causing contaminant, did you, sir? 102 1 A, No, I think they knew it. 2 Q. Well, Doctor, did you tell them -- where did you 3 tell them that it did, because at the commission what you 4 told them was that it did not contain' it. Everything you 5 told them about 2,4,5-T the end product, the recrystalized, 6 if you want to call it recrystalized was that it did not 7 induce chloracne, isn't that correct? 8 A. Yes, but they had the reports -- 9 Q, Isn't that correct? 10 A. What is correct, sir? 11 Q. Could you read the question? 12 (Court Reporter read back the previous question.) 13 A. No, that's not correct. 14 Q, Doctor, would you show me where you told them in 15 your testimony at this hearing, where you told them that the 16 2,4,5-T end product would cause chloracne? 17 A. That was one of the parts of your question, sir. 18 Q. Doctor, my question is, will you show me in this 19 report, sir, where you told them that in the commission's 20 testimony, in the transcript that you have, will you show me 21 where you told them that the end product 2,4,5-T will cause 22 chloracne, the way the men worked with it. 23 A. I believe on Page 52. 24 Q. 52? 103 1 A. 52r this is a weed killer used all over the world, 2 large quantities without the report of any toxic reactions or 3 skin reactions from it. So that we have to say that evidence 4 is negative evidence in its useage and that 2,4,5-T is 5 certainly not acnegenic or toxic in the way it is used as a 6 weed killer. 7 Q. So that's telling them that it's not chloracne, 8 doesn't cause chloracne, doesn't it, sir? 9 A, The final product. 10 Q, My question is -- 11 A. The final product. When -- 12 Q. My question, Dr. Suskind, is where did you tell the 13 commission that the 2,4,5-T produced by Monsanto causes 14 chloracne? You told them on that page that it does not cause 15 chloracne. Isn't that correct, sir? 16 A. Yes, from our experiments and from use. 17 Q. And so the -- what you gave them at that hearing 18 under oath was that 2,4,5-T being produced by Monsanto does 19 not cause chloracne, isn't that correct, sir? 20 A. I did say that in the circumstances in which it is 21 used, 22 Q. And you at no time told them that it could cause 23 chloracne, did you, sir? 24 A. I'm unable to find it in this record, but we did 104 1 provide them with the 1953 report and in the '53 report there 2 are people exposed to 2,4,5-T who did appear to get 3 chloracne, and they had this *53 report. 4 Q. Doctor, they may have had that report although it 5 doesn't show in this record that they had it, my question to 6 you, sir, is what you wanted them to believe was that the way 7 the men were working with this 2,4,5-T that they got 8 chloracne because of a particular accident, one in a thousand 9 accidents that would occur, this autoclave blew up, this 10 explosion, and that's the reason these men got the chloracne, 11 because they were working with the sodium trichlorophenate 12 and it was the sodium trichlorophenate that you proved in a 13 laboratory causes chloracne and that the 2,4,5-T that you 14 worked with did not cause chloracne. The 2,4,5-T the men 15 worked with did not cause chloracne, isn't that correct, sir? 16 A. That is completely incorrect, sir. 17 Q.' Would you point out for me in the transcript of 18 your testimony where you told them anything except what I 've 19 suggested to you that you said? 20 A, All we said in here -- . 21 Q. Excuse me. My question is to point out where you 22 told them anything other than what I've said that you did say 23 indeed? 24 A. You -- we said that the -- 105 1 Q. Point it out to me, please, in the record, where 2 you told them, sir? It's only in two places where you even 3 discuss it, that's Page 32, 33 and Page 51, 52. 4 A. Let me see that for myself, sir, please. In those 5 instances we were not talking about the -- 6 Q, Doctor, my question is for you to find, if you 7 will, please, where you told the commission anything other 8 than what I suggested what you told them? 9 A, Well, it's in the record here* 10 Q. Please point out out to me, sir, where it is, what 11 page is it that you tell them? 12 A, You indicate we have not been able to induce acne 13 in humans with 2,4,5-T. 14 Q Yes 15 A. And when I talk about 2,4,5-T I'm not referring to 16 the operation 17 Q Right. Doctor, so far you've told them that it 18 doesn't produce, your 2,4,5-T doesn't produce chloracne? 19 A. Itself, right. 20 Q. Now, tell me where you told them anything other 21 than the 2,4,5-T the men worked with doesn't cause chloracne, 22 that the thing that causes chloracne is what excaped in this 23 accident? 24 A. We didn't test the final product in humans, sir. 106 1 Q. Doctor, you said you did. 2 A. No, we tested the 2,4,5-T. 3 Q. You told -- you did test the final product, a 5 4 percent solution? 5 A. Recrystalized. 6 Q. Sir? 7 A. Recrystalized. 8 Q. No, in July of '54 it was not recrystalized, sir. 9 July of '54 was a 5 percent solution of the 2,4,5-T product 10 used by the men, recall that, sir? 11 A. On Page 2 of the letter, sir -- 12 Q. Doctor, are you looking at the transcript? 13 A. 1754. 14 MR. CARR: Excuse me, would you direct the witness 15 to point out to me in the transcript, as I've asked him to 16 do, where he told the commission anything other than what 17 I've said that he said. 18 THE COURT: Doctor, I think the question was 19 directed to the transcript alone. Please restrict your 20 answers to the transcript? 21 A. I don't find anything specific in that transcript 22 to answer your question, however, they had this data, this 23 '53 report and they knew exactly what -- 24 Q. Where does it show, sir, that they had the report? 107 1 workers? 2 A. Yes, but it needs an explanation, sir. We did 3 follow the workers. 4 Q. Doctor, please just answer my question, sir. You 5 said in the Nitro court what you wanted the Nitro Court to 6 believe, and you have said in this court what you want us to 7 believe? 8 A. No, sir. 9 Q. Oh, you haven't, sir? 10 A. Mo, sir. 11 Q. Are you sayingthings in court that you don't want 12 us to believe? 13 A. I do want you to believe what I said. 14 Q. You want us to believe what you are swearing to 15 under oath? 16 A. Yes, in 1953 we followed these people. 17 Q. If you don't mind, just answer the question. 18 A. I can only answer the question, sir, by being 19 correct. 20 Q. Doctor, I haven't asked you a question yet. You 21 want us to believe what you swear to here, don't you, sir? 22 A. I do indeed. 23 Q. And you wanted the Federal Court in Nitro in 24 Charleston, West Virginia, to believe what you said there? 21 1 A. Yes, sir. 2 Q. Now, it may be, Doctor, that you were mistaken at 3 one place or the other, isn't that correct, sir? 4 A. Mistaken perhaps in language. 5 Q. It may be that you were mistaken at one place or 6 the other, isn't that right, sir? 7 A. No, sir. 8 Q. It isn't possible that you were mistaken, sir? 9 A. No, sir. 10 Q. Doctor, do you really believe that you are 11 incapable of making a mistake? 12 A. Ho, sir, I am capable of making a mistake. 13 Q. May I finish my question? 14 MR. CARR: Your Honor, would you ask the witness 15 again to let me finish my question? 16 THE COURT: He wasn't finished. Doctor. Please 17 listen. You can tell whether he's finished or not. 18 Q. (by Mr. Carr) Doctor, do you really believe that 19 you are incapable of making an inaccurate statement in the 20 Federal Court in Charleston, West Virginia? Do you really 21 believe that, Dr. Suskind? 22 A. This is -- 23 Q. Dr. Suskind, please answer my question. Doctor 24 A. What is the question? You are asking three 22 1 questions. 2 Q. Head the question. 3 COURT REPORTER: "Doctor, do you really believe that 4 you are incapable of making an inaccurate statement in the 5 Federal Court in Charleston, West Virginia?" 6 A. I did not make an inaccurate statement. 7 MR. CARR: Your Honor, would you direct the witness 8 to answer my question? 9 A. I am answering it, sir. 10 THE COURT: That was not responsive. That was not 11 the question that was asked. Please read the question 12 again. 13 COURT REPORTER: "Doctor, do you really believe that 14 you are incapable of making an inaccurate statement in the 15 Federal Court in Charleston, West Virginia?" 16 A. Yes, sir. 17 Q. And do you believe that you are incapable of making 18 an inaccurate statement in this court, sir? 19 A, Yes, sir. 20 Q. Doctor, are there any other persons that you know 21 of? 22 A. May I ask -- would you read that back to me? 23 THE COURT: Just listen to the question. 24 Q. Listen to my question. Doctor, are there any other 23 1 persons that you know of that you believe are similarly 2 incapable of making an inaccurate statement? 3 A. X don't know, sir. 4 Q. Are you the only person that you know of that you 5 believe that is incapable of making an inaccurate statement? 6 A. No, sir. 7 Q. There are others -- who are the others that you 3 believe are incapable of making inaccurate statements? 9 A, I can't tell you here, sir, can't name them. Do 10 you want me to name them? 11 Q. But you do know such persons, do you, sir? 12 A. In a general way, I suppose I do. Sure. Anybody 13 can make a mistake, but in this instance I didn't make a 14 mistake 15 Q. I'm not asking you for that, I'm asking you to name 16 the persons. 17 A. You said who, 18 MR. CARRs Your Honor, would you direct the witness 19 to wait until I finish the question. 20 THE COURT: Doctor, you keep jumping in in the 21 middle of the question. You can't answer unless you've heard 22 the whole thing. Please wait until the end of the question 23 so you can respond. 24 Q. (by Mr. Carr) Doctor, do you understand that I 24 1 asked you previously if you knew of such persons to name them 2 who are incapable of making an inaccurate statement? 3 A. That's what I thought you said, sir, 4 Q. You thought I did say that? 5 A. Yes. 6 Q. And, who are these persons that you know? 7 A. I can't give you any names. 8 Q. Name me a single person, that you know, sir, other 9 than yourself who is incapable of making inaccurate 10 statements? 11 A. I cannot give you that answer, sir, I don't -- 12 Q. You don't know of any, do you, Dr. Suskind? 13 A. Not offhand. 14 Q. Think about it. Just don't be offhand. I want you 15 to think about it and name the person that you believe is 16 incapable of making an inaccurate statement other than 17 yourself? 18 A. In this instance I didn't make an inaccurate 19 statement. 20 Q. Doctor, would you please listen to my question and 21 answer it, sir? Doctor, could you name the person that you 22 believe is incapable of making an inaccurate statement? 23 A. I cannot, sir. 24 Q. Other than yourself? 25 1 A, I cannot, sir. 2 Q. All right. Doctor, do you recognize that either 3 you made an inaccurate statement in this court or the Federal 4 Court, or you deliberately lied in this court or in the 5 Federal Court, do you understand that, sir? 6 A. No, sir. 7 Q. Doctor, you were either mistaken here or there in 8 the statements you made here or there because they are 9 directly contradictory, or you deliberately lied. Now, I'm 10 giving you the option, sir, to make your decision. Which is 11 it that you did, was it a mistake here or there or was it a 12 deliberate lie one place or the other? 13 A. It was neither, sir. 14 Q. It was neither a mistake nor a lie? 15 A. That's right. 16 Q. It was the truth and accurate in both places? 17 A. Absolutely, sir. 18 Q. All right. You believe the truth to be that 19 did follow the workers and you believe the truth to be that 20 you did not follow the workers, is that correct? 21 A. Yes, with explanation. 22 Q. Excuse me. Is that your statement, sir? 23 A. Yes, sir, with explanation. 24 Q. And, Doctor, now you want to explain how now that 26 1 you can be telling the truth in both places? Is that what 2 you want to do? 3 A. Yes. 4 Q. Would you please do that? 5 A, In the case of the 1953 group, what we meant when 6 we followed them was that we had histories of that group 7 which we felt were fairly accurate histories of that group, 8 so that that in a sense was a follow-up to the point where we 9 examined the '53. And in that sense, we followed them, sir. 10 In that sense we followed them. A medical history, a good 11 medical history is a way, and a good occupational history, 12 which I believe we had, is a way of following these patients 13 from the time that their problems started until we examined 14 them. So that what we have said is that we followed these 15 1953 people for that period of time. Some of them for four 16 years. 17 Q. Doctor, that's fine. That explains the statement 18 that you made under oath in the Federal Court that you did 19 indeed follow these workers. Now, if you will, explain the 20 statement in this court where you said you did not follow the 21 workers? 22 A. Well, following in the sense that we started four 23 years before with the 36, we did not. We did not follow 24 those workers from 1949 until 1953, not until we examined 27 1 them in 1953, and that explains my statement to the Court 2 that we followed them. But, if you are asking -- 3 Q. No, what 1*111 asking you now is -- Excuse me -- 4 A. You are asking me -- 5 Q. Excuse me. May I interrupt you, Doctor. You 6 explain how you had indeed followed these workers and how you 7 swore to tell truth that you followed the workers. Now, I 'd 8 like you to explain to us how you did not follow the 9 workers. Why it is the truth in the Federal Court that you 10 followed the workers, but it is the truth in this court that 11 you did not follow the workers? Could you explain that now 12 please, sir? 13 A. We did not examine these people, that's what I mean 14 by following. Vie did not examine these people during a 15 period of four years. 16 Q* Doctor, you use exactly the same language, you said 17 in the Federal Court affidavit that you followed them and in 18 this case you said you did not follow them. You didn't use 19 the word examine. You said in both cases you used the word 20 follow. 21 A. That was my intent, sir. 22 Q. Your intent was what, to say I examined them, I did 23 not examine them for four years? 24 A. During the period of four years, yes, sir. 28 i 1 Q. Then, Doctor, what you did then when you stated 2 here that you did not follow them was that you made a 3 mistake, you were inaccurate, weren't you, sir? 4 A. If the language sounds inaccurate, yes, but it has 5 an explanation 6 Q. Well, Doctor, what I'm asking you is you've used 7 exactly the same words to describe the same occurrence in two 3 places. In front of the one word you use the word not and 9 didn't use the word not in the other court. The same word 10 was being used, Doctor. Now either you misused the word here 11 or you misused the word there, isn't that correct, sir? 12 A. Correct. 13 Q. So you did make the mistake here then, is that what 14 you are saying, sir? 15 A. in not explaining completely, yes, sir. 16 Q. You did make a mistake? 17 A. In not explaining it completely. 18 Q. So you are not a perfect human being? 19 A. You are absolutely right, I'm not perfect. 20 Q. Thank you, Doctor. Now may we pass to -- you did 21 indeed follow these 36 persons and you were concerned about 22 these 36 persons and you looked at their medical records over 23 the period of four years, didn't you, sir? 24 A. During our '53 examination we did that, yes. 29 1 Q. Doctor, no, you said over a period of four years* 2 You are not saying during the *53 examination* I'm asking 3 you, you did indeed follow these 36 workers over this period 4 of four years in the sense you have just described in the way 5 you told the Federal Court, didn't you, sir? 6 A. No, sir* 7 Q. You didn'tfollow them? 8 A* We followed them by getting the medical history and 9 the work history, that's what I meant by followed, sir. 10 Q. Doctor, did you follow the workers just the way you 11 explained it, the way you explained your Federal Court 12 statement? Did you indeed follow these workers over this 13 period of four years? 14 A. In the sense that v/e examined them in 1953. 15 Q. Can you answer my question, please? Did you or did 15 you not follow these workers as you have explained following 17 to be? 18 A. Yes, in the sense -- 19 Q. Doctor, you were concerned about their health, you 20 did conceive that it was important to know what happened to 21 these men in that four-year period of time, didn't you, sir? 22 A. Yes. 23 Q. And, Doctor, that indeed was the subject of your 24 1978 letter to Monsanto because you were concerned about 30 1 these so-called common ailments, weren't you, sir, over this 2 period of four years? 3 A. As a scientist we were interested in knowing what 4 happened to those people. 5 Q. Yes, thank you, Doctor. Now, Doctor, with regard 6 to your June 22nd, 1956 memo, do you have Plaintiff's Exhibit 7 1752 there? 8 A. Yes, sir. 9 Q. Now, Doctor, you recall you told us that you had no 10 recollection of this meeting? 11 A. Not until you presented this to me, sir. 12 Q. Well, didn't you tell us even then that you had no 13 recollection of what took place? 14 A. I may have indicated that I had no recollection, 15 but, in reviewing -- in reviewing this letter, much of what 16 this letter says came back to me so that I can tell whether 17 or not this is an accurate description of what actually 18 happened. 19 Q. And, Doctor, when did it come back to you? 20 A. In just reading over this, which I haven't seen in 21 a long time. 22 Q. Had not come back to you any time before that, 23 then? 24 A. Well, I hadn't seen it before that, sir. ____________________________________________________________________________________ 31 1 Q. You had never seen it before I handed it to you? 2 A, No, I saw it in 1983. 3 Q. Well, didn't it -- 4 A. That's three years ago. 5 Q. When you saw it in 1983, didn't it refresh your 6 memory then? 7 A, Yes, it did, and it's now refreshing my memory now. 8 Q. Doctor, in 1983 when you saw it, you said the 9 document didn't refresh your memory, did you not, sir, and 10 now you are telling us you thought it did refer your memory? 11 A, No, in 1983 it also refreshed my memory. I said 12 that just a moment ago, sir. 13 Q. I know you said that just a moment ago, Doctor. Do 14 you recall when you were given that document in 1983, what 15 time in 1983 was it you got that document? 16 A. I really can't recall, sir. 17 Q. Let me refresh your memory, sir, it was the time 18 you had a deposition taken on the 22nd day of December, 1983, 19 in the case of the wives of the railroad workers, wives and 20 children of the railroad workers who were suing Monsanto for 21 problems they had resulting from the dioxin exposure, do you 22 recall that, sir? 23 A. I do now that you've said it, sir. 24 Q. And, sir, do you recall at that meeting that you 32 1 said you could not recall any meeting and then there was an 2 exhibit handed to you, the exhibit dated of the conference 3 June 22nd, 1956, do you recall that, sir? 4 A. Yes, sir. 5 Q. Do you recall this question being asked you. 6 MR. HEINEMAN: Where are you? 7 MR. CARR: Page 15 of the deposition taken on 8 December 22nd, 1983, in Cincinnati, Ohio. 9 A. Who took that deposition, sir? 10 Q. (by Mr. Carr) The plaintiffs of the -- 11 representing the dependents, the wives and children of the 12 railroad v/orkers who were involved in the Sturgeon spill. 13 A. Who took the deposition, sir? 14 Q. On Page 15 this question. The Plaintiffs' 15 attorneys took it. 16 A. Who was he, sir? 17 G. Don't you know who he is? 18 A, No, X can't remember, sir. 19 Q. Makes no difference, does it? 20 A, I think itdoes. 21 Q. How so? 22 A. Well -- 23 Q. Does it make any difference whether or not you told 24 the truth, whether you know the Plaintiffs' attorney or not, 33 1 aren't you going to tell the truth, Dr. Suskind, no matter 2 who is asking the questions? 3 A. That's not the question, sir. 4 Q. I know, the question is this -- 5 A. I was curious to know about it, I don't have the 6 document before me. 7 Q. Doctor, I'm not concerned about your curiosity. I 8 would like you not to change the subject. The subject is, 9 sir, when you were handed Plaintiff's Exhibit 1752 at that 10 time, which is the conference of June 22nd, 1956, wasn't this 11 question asked you? Question: "Does the document refresh 12 your memory about the conference of June 22nd, 1956?" And 13 wasn't your answer, "It does not*" 14 MR. HElNEMAN: What page are you on? 15 MR. CARR: Page 15, Counsel. 16 MR. HEINEMAN: May I see it? I don't see that 17 question on Page 15. 18 MR, CARR: Well, my pages aren't numbered. I 19 numbered them. 20 MR. HEINEMAN: Oh. I've got the one numbered by 21 the Court Reporter. 22 MR. CARR: As you can see my corners are cut off, 23 so you keep on going, you'll find it. Let's start from the 24 beginning, Counsel. You've got a different deposition, 34 1 Counsel. Let's start from the beginning. You have just the 2 cross examination. This is -- I have the evidence deposition 3 that was taken. You've got the discovery deposition. 4 Counsel. , There were two depositions taken that day. X think 5 you just skipped it. 6 MR. HEINEMAN: Okay. Are you on Page 15 now? 7 There we are, thank you. 8 MR. CARR: You're welcome. 9 Q. (by Mr. Carr) Wasn't that your answer to that 10 question at that time, sir? 11 A. Yes, it was. I was handed that thing and I said I 12 didn't. 13 MR. CARR: Your Honor, would you direct- the witness 14 to respond to the question, not go beyond it? 15 A. Yes, sir, 16 THE COURT; That is an appropriate response, 17 Doctor, Thank you. 18 Q. Doctor, hear you told us that seeing the document 19 then refreshed your memory then, did you not, sir? 20 A. Yes. 21 Q, But at that time you told the Plaintiffs' attorney 22 that it doesn't refresh your memory, didn't you, sir? 23 A. Because I'd never seen that before, sir. 24 Q. Excuse me, did you not tell him at that time, sir? 35 1 A Yes, sir, that's what I told him, and it was the 2 truth. 3 Q. And he examined you about -- didn't examine you 4 about the contents of it because it didn't refresh your 5 memory. Do you recall that, sir? 6 A. No, I don't. 7 Q. Doctor, since it was not a memo that was in 8 evidence at that time, unless it refreshes your memory, you 9 know that the counsel may not inquire of its contents, you 10 know that, don't you, sir? 11 A. No I don't. I'm not a lawyer, so I can't -- 12 Q. Well, in any event you do know that at that point 13 in time because it didn't refresh your memory you were not 14 subjected to cross examination on the contents of that 15 record, were you, sir? 16 A. I don't know, sir. 17 Q. Well, why don't you look at it and find out if you 18 were asked any questions about that, because at that time you 19 said it didn't refresh your memory. 20 A. Where is that, sir? 21 Q. The question is right here, "Does the document 22 refresh your memory about the conference of June 22nd, 1956? 23 Answer : It does not." 24 A. That1s right, sir. 36 1 MR. HEINEMAN: Your Honor, may counsel approach the 2 bench? 3 THE COURT: Sure. 4 (The following Side Bar conversation was had outside the 5 hearing of the jury.) 6 MR. HEINEMAN: I object to this line of questioning 7 as being misleading to the witness and to the jury. There is 8 no objection made here. All this says is that Pratt didn't 9 go on with it. 10 THE COURT: Right. 11 MR. HEINEMAN: He didn't go on. Doesn't say I 12 can't go on with it. 13 MR. CARR: You know good and well he can't go on 14 with it. 15 MR. HEINEMAN: Listen, you've taken depositions 16 with Paul Pratt. 17 MR. CARR: It's a Monsanto document, it's not in 18 evidence, cannot be interrogated about it unless it -- 19 MR. HEINEMAN: There is no explanation. 20 THE COURT: Whoa, whoa, whoa, whoa. One at a time, 21 gentlemen. There is nothing misleading about what just went 22 on. Nothing at all. 23 MR. HEINEMAN: It implies that that's the reason 24 Pratt didn't go on with it. There is nothing said in the 37 1 record that's that's the reason Pratt didn't go on with it 2 and Mr. Carr and I know Paul Pratt well enough that there is 3 no way to predict why he does things in depositions. 4 MR. CARR: That isn't true. I assume he follows 5 the rules of evidence. 6 THE COURT: Wait a second. Now wait a second. 7 Regardless of whatever your personal opinion of him isr don't 8 you operate under the presumption that he's going to follow 9 the evidentiary and procedural rules. Objection is 10 overruled. 11 MR. HEINEMAN: That Mr. Pratt's going to follow 12 them? He has shown me otherwise on a number of occasions. 13 THE COURT: Did he show you otherwise in this 14 deposition? 15 MR, HEINEMAN: I don't know, it's been so long ago, 16 but I get you a dollar that he did at some point. 17 THE COURT: Your bet notwithstanding, I will engage 18 in that presumption and on the basis of that presumption 19 there is nothing misleading about what Mr. Carr said. 20 (The following proceedings were had in open court.) 21 Q. (by Mr. Carr) Doctor, following that refreshment 22 of your recollection, you then in this court when I suggested 23 to you that there was a meeting in June of '56 about this 24 subject, you said again that you had no recollection of it, 38 1 did you not, sir? 2 A. I did, sir* 3 Q. Yes. Doctor, had you forgotten it then in the 4 meantime? 5 A. I really believe so, sir. 6 Q. You really believe you had forgotten it in the 7 meantime? S A. Yes. 9 Q, Hadn't entered your mind again? 10 A. Precisely. 11 Q. Doctor, then why is it in the medical court case 12 under direct examination at Page 27202 you said in response 13 to questions, MI recall a meeting in 1956. This report was 14 discussed thoroughly at a meeting June 22nd, 1956." Why did 15 you say that in response to Monsanto attorneys' questions in 16 the Federal Court on that page? 17 A. Because in the discussion with the Monsanto 18 attorneys, this thing turned up again. 19 Q. Doctor, would you want to look at your direct 20 examination and see if it wasn't that you said in response to 21 questions on page 27202, "Question; All right." Referring 22 to your studies with the Diamond Alkali material and the 23 Monsanto material. "All right, sir, were there any systemic 24 effects?" And wasn't your answer, "No, there were no 39 1 systemic effects. Questions Was this study delivered to 2 Monsanto? Wer the results of it given to Monsanto? Answer: 3 Yes, it was. Question: And when, if you know? I should say 4 when and to whom, if you know? Answer: Yes, I rm trying to 5 recall when there was a conference on it. And I believe it 6 was some time in 1956, I believe. Question: All right, sir, 7 did you make any recommendations based on the results of this 8 study? Answer: I have, and if I may go back and answer the 9 last question, I believe that this report was discussed 10 thoroughly at a meeting in 1956, June 22nd, 1956." And the 11 Court asked you, nThat was a meeting with whom, Doctor?" And 12 you said, "This was a meeting with the people who 13 participated in the study, Dr. Fan, Dr. Wallace of Monsanto, 14 Nitro, Mr. Lukey, Mr. Godfrey, Mr. Wheeler, I think Paul 15 Bolles was there, and Mr. Weger." The Court said, "wtiat was 16 the date?" And you said, "June 22nd, 1956." You recall all 17 those things, sir? 18 A. Yes, well, it's in the record. 19 Q. Do you recall all those things, sir? 20 A. Do I -- 21 Q. Do you recall that this is what was asked you and 22 these are the answers that you gave? 23 A. Yes, I do now. 24 Q. And at that time you volunteered the statement that 40 1 there was a meeting in June 22nd, 1956, did you not, sir? 2 A. Yes, sir. 3 Q. And, Doctor, you didn't remember it when the 4 Plaintiffs' attorney asked you about it in late 1983, and you 5 said it didn't even refresh your recollection, and then in 6 1985, you answered in the Federal Court that you did recall 7 it and you recalled the details, you recalled who v/as there. 8 The memo hadn't been handed to you at that time, you hadn't 9 been given that exhibit, you recalled v/ho was there and the 10 details of it, and then in this court again you say I have no 11 recollection of it, X have no memory of it, because again the 12 Plaintiffs' attorney in a case wants to ask you some 13 questions about it. Don't you find that strangely 14 coincidental, Dr. Suskind? 15 A. No, sir, not atall. 16 Q. All right. 17 A. Not at all. 18 Q. Dr. Suskind, with regard to this meeting, sir, the 19 June 22nd memo as we have gone into earlier, you do say at 20 that time that you strongly urge that consideration be given 21 to publication of all of the experimental results obtained to 22 date so that it could be used most effectively in defending 23 Monsanto's position. Now, Doctor, that is a direct quote 24 from the memo, is it not? 41 1 A. Yes, but not a direct quote from me, 2 MR CARR: Excuse me. Your Honor, would you direct 3 the witness to answer the question? 4 THE COURT: Doctor, that was not responsive to the 5 question That's not what you were asked Listen to the 6 question and answer it, please. 7 A. Yes, sir. 8 Q. Doctor, what I read to you was a direct quote from 9 this June 22nd, 1956 meeting, was it not, sir? 10 A. I 'm just trying to locate it, sir. ' 11 Q. It's at the bottom of Page 2 and the top of Page 12 3. 13 A. That is a quote from this memorandum, sir. 14 Q. Doctor, what were these experimental results that 15 could be used most effectively in defending Monsanto's 16 position? 17 A. It's an inaccurate statement, sir. 18 Q. Doctor, did you discuss some experimental work that 19 you at Kettering had done? 20 A. Yes, we did, but not to defend Monsanto's position. 21 MR, CARR: Your Honor, could you direct again the 22 witness to wait until I finish the question and then respond 23 just to the question? 24 THE COURT: Doctor, I don't think he was finished. _______________ !________________________________________________ 42 1 X think it was pretty obvious he wasn't. Please listen and 2 listen for the end of a question before you respond, 3 Q. Doctor, were there experiments that had been 4 performed? 5 A, Yes, there were, sir, 6 Q. Were there results of those experiments that had 7 been performed up to June 22nd, 1956? 3 A, Yes, there were, 9 Q. And how many different sets of experiments had been 10 performed up to that point in time, sir? 11 A, I think there must have been at least three 12 different kinds of studies. 13 Q, And when were they performed? 14 A. They were performed between 1953 and 1955, I would 15 say. 16 Q. Wasn't the firstone performed in 1954? 17 A. We started it in -- I believe westarted it in '53, 18 we wrote it up in *54, sir. 19 Q, In July of '54 you wrote it up, didn't you, sir? 20 Didn't you, sir? 21 A. Yes, sir. 22 Q. And was there another experiment after that, sir? 23 A. Yes, there was. 24 Q. And what was the -- what was that experiment, what 43 X did you do in that experiment? 2 A. We attempted to'expose a large variety of animals 3 to inhalation of certain of the -- of the materials that we 4 were concerned with. 5 Q. And was that report written? 6 A. Yes, I believe it was* 7 Q. And what would be the date of that report? 8 A. X have no idea, I don't have it with me. 9 Q. Doctor, I have no such report, was there a report 10 given, written up, sir? XI A. I don't recall whether it was a report written or 12 this was a discussion with the Monsanto people after it was 13 completed. 14 Q. You had an experiment completed, you knew the 15 results of the experiment, you communicated it to the 16 Monsanto scientists, people involved, but you did not write 17 up the results of that report, is that correct, sir? 13 A. Because we felt it was incomplete. 19 Q. Excuse me, Could you answer my question, sir? 20 A. No, we did not. 21 Q. Monsanto knew about that? 22 A. We knew some of it, yes. 23 Q. Excuse me, Monsanto knew about the experiment, knew 24 about the results of the experiment, right, sir? 44 1 A. Right 2 Q. But you didn't publish it either then or later, 3 isn't that correct, sir? 4 A. No, sir, we did not. 5 Q. And you didn't mention it publicly either then or 6 later? 7 A. Yes, we did. 8 Q. When was that? 9 A. In the hearing, the workman's compensation hearing 10 in 1956, sir. 11 Q. You did mention it in that hearing? 12 A. I believe so. 13 Q. All right. Now, the third result that you -- third 14 test, when was that, sir? 15 A. That was completed in, I believe, 1955. 16 Q. Were there any after that, sir? 17 A. No, I don't believe so. 18 Q. So there is three experimental results, one in '54, 19 then one where the inhalation experiment, the date we don't 20 have, when was it in *55 or *54? 21 A. I would assume it would have been '55. 22 Q. All right. And, then there was the last report, 23 last experiment dealing with the sodium trichlorophenate from 24 the Monsanto process and from Diamond Alkali and Halowax, 45 1 correct, sir? 2 A. Correct* 3 Q. And that report was written up and you referred to 4 it a number of times? 5 A* I have, sir, yes. 6 Q. So at the time of this meeting, you had these three 7 experiments that you had concluded, is that right, sir? 8 A. Correct. 9 Q. And, in addition, at the time of this meeting, you 10 had examined as is the subject of that paragraph numbered 11 three, Roman numeral XIX on Page 2, you had examined these 35 12 people, had you not, sir? 13 A. Yes. 14 Q, So now at that point in time what you had was 15 knowledge as to the condition of the workers, knowledge as to 16 the condition of the animals, knowledge as to the condition 17 of the human volunteers relating to exposure to this 2,4,5-T 18 and to the constituents of the 2,4,5-T process? 19 A. Yes, sir. 20 Q. And, there would be no other experimental results 21 then that this statement could be possibly referring to, is 22 that correct, sir? Have we covered all the possibilities, 23 sir? 24 A. I can't recall any others, sir. 46 1 Q. All right. Now, Doctor, which of those results or 2 what in those results could be used to effectively defend 3 Monsanto1s position? 4 A. X don't know. 5 Q* Doctor, think about the results that you had and 6 tell us please which of these results could be used to 7 effectively defend Monsanto's position. 8 MR. HEINEMAN: Objection, asked and answered. 9 A. I have answered it, sir, I don't know. 10 Q. Doctor, what was Monsanto's position, first of all, 11 that needed defending at that point? 12 A. I have no idea, that's not my statement. That's 13 Mr. Weger's. 14 Q. Doctor, you do know what needs defending, it's the 15 claims and litigation, that is the subject of Paragraph 16 numbered III, it starts out that way, discusses the claims 17 and litigation, isn't that correct, sir? 18 * A. If you are referring to item III, yes. 19 Q. That's what I'm referring to, that's the subject of 20 that paragraph, isn't it, sir? 21 A. Yes. 22 Q. And, Monsanto's position there that you discussed 23 and they considered the possibility there of using you as an 24 expert witness, did they not, sir? 47 1 A. Yes, sir. 2 Q. And, somebody says, and I take it you have no 3 memory to counter what was said here, that you strongly urged 4 consideration be given to the publication? 5 A. I would have never said that, sir. 6 Q. Doctor, you cannot have it both ways, you've told 7 us that, day before yesterday, you told us that you had no 8 memory of that at all, that you knew nothing beyond what was 9 stated in this memo. Isn't that correct, sir? 10 A. At that time, yes, sir, 11 Q. Has -- have you got some new data now since day 12 before yesterday? 13 A. I've had an opportunity to review this, sir, in the 14 last two days. 15 Q. Have you got some new data? Sir, may I finish my 16 question? 17 A. Sure, please. 18 Q. Have you got some new data or a new report since 19 the day before yesterday that you used to come up with the 20 details of the meeting? 21 A. No, sir. 22 Q. Now, Doctor, have you undergone hypnosis or 23 something to explore the remote corners of your memory with 24 regard to this meeting? 48 B2 1 STATE OF ILLINOIS ) 2 TWENTIETH JUDICIAL CIRCUIT ) 3 COUNTY OF ST. CLAIR ) 4 5 I, RICHARD P. GOLDENHERSH, CIRCUIT JUDGE, do 6 hereby certify that the foregoing transcript is a true and 7 correct copy of said transcript. a a DATED: February 24, 19B6 io li 12 RICHARD P. GOLDENHERSH, CIRCUIT JUDGE 13 14 15 15 17 18 13 20 21 22 23 24