Document JvyEZxz3d2ayGXgJZOn41dLZO

1 dust on*the floor -- 2 A No, sir. 3 Q You don't recall that? 4 A No, sir. 5 0 Building 78 and 79? 6 A That w a s n 't where they shipped from. 7 Q Doctor, when they do -- when they do fill up a bag. 8 is it possible for them to not -- to keep the outside of the 9 bag from getting some of the dust and material on it? Is that 10 possible, physically possible to do that, Doctor Rousch? 11 A Wall, I'm sure there were traces. 12 Q Doctor, that's what we're talking about in this whole 13 case is dealing with what you call traces. 14 A Ho, sir. 15 Q Doesn't the drums that they fill it with, doesn't that 16 drum sit there under spout and It comes down and fills up that 17 drum? 18 A Yes, sir, but not in shipping. 19 Q They fill it up where they make it, don't they, sir? 20 A Yes, sir. 21 Q And Is it possible to keep some dust from that 2,4,5 *3 22 that's going into that drum, is it possible to keep that from 23 -- from going onto the side of the drum? 24 A I 'm sure there was some. 1 Q Y o u 1re surd there'e some, and I t 1 taken from that 2 department where i t 's made and where Is it taken then, Dr. House 3 A To the warehouse. 4 Q And when it gets to the warehouse, do those men in the 5 warehouse handle that drum or that box or that bag that's flilac 6 with 2,4,5 T? 7 A Yes, sir, 8 Q And do they not handle it when it has soma 2,4,5 T on 9 the outside of the surface, air? 10 A I'm sure they do. 11 Q And when they drop it on the floor, doesn't some of 12 that dust that's on the outside of that package get Into the 13 air or on the floor? 14 A It's possible. 15 Q And when they breathe that dust In and when they touch 16 that dust and wouldn't chat dust touch their skin from these 17 packages? 18 A At trace levels I'm sure that's true. 19 Q That's what we're talking about, Doctor. 20 A No, sir. 21 Q Yes, we are, sir. You may not be talking about it, 22 but that's what this case is about, that's what this case is 23 exactly about. My question Is wasn't that worker exposed to 24 2,4,5 T, wasn't that shipping worker exposed to that? Given 1 your statement that it's trace amount wasn't he exposed to It. 2 sir? 3A 4Q Yea. Now, after that three years of handling those bags he 5 then became foreman, didn't he, sir? 6 A Yes, sir. 7 Q And he was a foreman then until 1955 In that depart 8 ment, in the Shipping Department, wasn't he, sir? 9 A Yes, sir. 10 Q And if there was dust on the floor or dust in the air 11 from handling those b a g s , he was exposed to it while he was a U foreman in that mode, wasn't he, sir? 13 A If there was dust and if it was from 2,4,5 T. 14 Q And there would be dust, would there not, sir? IS A Not measurable. 16 Q Doctor, there would be dust, would there not, sir? 17 I have given y ou every single question, Doctor, I've given you 18 that there's some 2,3,7,8 TCDD o r some 2,4,5 T, and you said 19 you can't measure it. Matter of fact, they did measure in the 20 dust, but I'm not even going to argue that with you at this 21 point, Doctor. It's there, isn't it, sir? 22 MR. HEINEMANt Objection, your Honor, there's no 23 evidence they measured 2,3,7,8 In the dust in the warehouse. 24 THE COURT: Objection is overruled I A I don't know. q2 You don't know that It'a thara? X thought you just 3 got through agreeing that It would he there in traee amounta? 4 A In trace amounts, that's right. 5 Q But, Doctor, please keep In your mind so that X don't 6 have to say It each time. If It's a trace amount, lt'a there, 7 Isn't It, sir? 8 A Yes. q9 And these exhibits that we just went through where 10 they checked Buildings 46 and 79, they titled it Trace Amounts, 11 didn't they, sir? 12 A X don't recall. q13 Well, the exhibits are right In front of you. The 14 exhibit where they are going to pave the lot, they talk about 15 trace amounts in the material, don't they, sir? 16 A Yes, sir, 17 q And they talk about, they say during tha period from 18 1943 to 1969 Monsanto's Nitro Plant manufactured 2,4,5 T, which 19 contained trace amounts of 2,3,7,8 tetrachlorodlbenzo-p-dioxln. 20 That's what they say, don't they, sir? 21 A Yes, sir. q 5522 Now, those trace amounts ware as high as parts per 23 million, weren't they, sir, or 60 parts per million? 24 A Yes, sir. 1 Q And trace amount* then can go all the way from 60 2 parts par million down to parts par trillion that they ware 3 detecting the lowest amounts in thesa samples isn't that 4 correct sir .16 parts par billion is 160 parts par trillion, 5 Isn't it sir? 6 A Right 7 Q And ovar bora on the area that they're paving, .12 -- > 8 no, I'm sorry, .11, that's 110 parts per trillion, isn't it, 9 sir? 10 A Yes, sir. 11 Q How, these are the areas that they'rs talking about 12 that they're paving and putting asphalt over, these are the 13 areas that they measured 11, 110 parts per trillion, this Is 14 where they're putting the crushed limestone, this is whare IS they're preventing the landfill from moving, this is where 16 they're putting the asphalt -- 17 A No, sir. 18 Q Those are those samples, are they not, sir? 19 A No, sir* 20 Q Well, where are these samples when they say Nitro 21 Site 1A and all the way down through 8, where is this land that 22 has the 110 parts per trillion? 23 A X don't know. 24 Q Now, Doctor, it's this plant, they're talking about 1 this plant, wipe samples from the Nitre Plant aren't they, air? 2 Isn't that this plant is the Nitro Plant and they're giving the 3 results from that Nitro Plant, aren't they, sir? 4 A These are landfill samples hare, 5 Q In the Nitro Plant? 6 A Yes, sir, 7 Q And turning the next page it's Nitro soil? 8 A Well, It says site, I don't know what that means. 9 Q Nitro site, you don't know what that means, sir? 10 A No. I know it's a site, but I don't know which site. 11 Q You know It's a site in the Nitro Plant? 12 A Yes, sir. 13 Q You know that, don't you, sir? 14 A Yes, sir. 15 Q And you know that the land, the soil samples they tool 16 was from this area where they put the crushed limestone and from 17 this area where they put the blacktop and from this area where 18 they excavated? 19 A Yes, sir. 20 Q Now, those are trace amounts, aren't they, sir; those 21 described there as 110 parts per trillion? 22 A No, sir. 23 Q They're not trace amounts? 24 A Yes, they're trace amounts. I Q That's what I've asked you. 2 A But that's not what t h e y 'ra covering it up for. 3 Q Doctor, they are covering up the area that contains 4 110 parts per trillion, aren't they? 5 A Yes. sir. 6 Q And they did that in 1985. X take it? 7 A X don't know. 8 Q And why are they covering up the area that has 110 9 parts per trillion of 2,3,7,8 TCDD, Doctor? 10 A They're covering -11 Q What are they trying to prevent by doing that? 12 A They're not trying to preventanything. 13 Q They're not? 14 A No, sir. 15 Q They just want to cover up this area Just for fun? 16 A No, sir. 17 Q What are they trying to prevent then? 18 A They're trying to cover up higher concentrations, not 19 that 110 parts per trillion. 20 Q Well, what's the highest that they're trying to cover 21 up? 22 A About 11 parts per billion. 23 Q Now, Doctor, are you sure that's not a spiked sample, 24 Doctor? 1 A HO, sir, I do n 't think so, 2 Q Don't you see that "H" right there. Doctor? It means 3 it's a spiked sample, 4 A The one down on the previous page it's 10.34 parts 5 per billion. 6 Q All right, Doctor, for the sake of argument they went 7 from 110 parts per trillion to 10 parts per billion, and they 8 cover up that entire area, didn't they, sir? 9 A I'm not sure the relationship of what we Just read to 10 that. 11 Q Doctor, do you know what the level of the contaminate 12 is in this largs area here? 13 A No, sir. 14 Q Do you know that that Is not this area? This is the 15 only document that we have, Dr. Rousch. You gave us these 16 documents dealing with the Nitro Plant, Doctor. 17 A Yes, sir. 18 Q Doctor, there are no children in this plant that's 19 going to sit down and eat that dirt that contains 110 parts per 20 trillion or one part per billion or ten parts per billion, is 21 there, sir? 22 A No, sir. 23 Q And the men aren't going to sit down and eat that 24 dirt over their lifetime, are they, sir? 1 A No, sir. 2 Q They are simply, if they don't cover chat up, they 3 are going to be exposed to cha water that runs off onto the 4 parking lot, and that's the reason they've graded this, and 5 that's the reason they put that wall there. They're simply 6 going to be exposed to whatever might be in that soil and run 7 off into that plant, aren't they, sir? 8 A No, sir. 9 Q They're not going to be exposed to it? 10 A There's no evidence that they're going to be exposed 11 to it. 12 Q Doctor, why are you doing this, why Is this called 13 remedial work 2,3,7,3 TODD remedial work, why are you going to 14 this expense of excavating that, blackcopping that and putting 15 limestone there and a big earthen dam there? Why are you at 16 Monsanto doing that? You just want to spend some money? 17 A To cover up that site where they found dioxin. 18 Q Why do you want to cover up that site, Dr. Rousch? 19 A It's good practice. 20 Q Why is it good practice, Dr. Rousch? 21 A Because the SPA would like to have it done. 22 Q Why would EPA like to have it done? 23 A Not for health reasons. 24 Q Well, why would they like to have it done? Do they 1 Just like to go around and make people do things not for health 2 reasons? Why do they want that covered up, Doctor? Why did yo\ 3 agree to cover it up? They didn't go to Court and force you to 4 cover it up. You agread to covar that up. You could have said, 5 hey, no, that's not a health hasard, th a t 's not going to bother our workers, chat's not going to bother anybody, we're not golnj 6 7 to cover it up. We believe /what Dr; Housch says about health 8 hasards, and we're not going to go to that expense. Now, why 9 did Monsanto cover that up? JO A I'm not sure of the reasons why thay did It. 11 Q Well, just speculate for tne, Doctor. 12 A So they wouldn't have to be talking about the fact 13 that they had found trace levels of dioxin in that area. 14 Q Well, why wouldn't thay want to be talking about it, 15 trace levels, you said yourself trace amounts can't hurt any* 16 body. What do they care whether thay talk about it or not? 17 A 1 think it's Just good practice. 18 Q Well, I know that, Doctor, but the question is why is 19 it good practice, what kind of practice Is it? It's a health 20 practice, isn't it? 21 A Wo, sir. 22 Q Sir? 23 A Ho, sir. 24 Q Well, what is it, Just practice covering up? You w t& h 1 to get practice in spreading limestone or spreading asphalt? 2 What is it a practice that relates to what industrial hygiene 3 health to protect children? What is that practice Doctor, 4 why is it a good practice? 5 A To cover up an area where there*s dioxin. 6 Q And why do you want to cover up an area where there's 7 dioxin? So It won't get out and expose people to it isn't 8 that right, Dr. Rousch? 9 A No, sir. 10 Q Well, why do you want to cover it up? If that's not 11 the reason, why go to the trouble of covering up where there's 12 dioxin? 13 A It's becauseof a political issue. 14 Q It's a political issue? 15 A Yes, sir. 16 Q And there are some politicians now that are making 17 you do that? 18 A No, sir. 19 Q Well then, how is it a political issue? 20 A Because of the issue of what level is going to be 21 consistent with concensus standard of what Is a no exposure 22 a r e a , 23 Q Doctor, what it is is that neither you nor no one 24 else on earth knows whether or not exposure to trace amounts 1 down to 100 parts par trillion or 65 parts par trillion or ona 2 part per quadrillion nobody knows but what that might have lonj 3 tarn long range latency period health effects isn't that 4 correct sir? S A No sir. q6 Does anybody know that it doesn't Doctor7 7 A The CDC says It doesn't. 8 Q Whore did the CDC say that it doesn't have long range 9 -- we read the Missouri Division Health Report just last week 10 Doctor. The CDC was part of that where they said exactly the 11 opposite. Do you recall chat, Doctor? 12 A Yes, sir. 13 Q All right. NowDoctor, is thereanystudy anywhere 14 that says it doesn't have, low doseexposure will not result in IS long term latency health effects? 16 A Yes, sir. 17 Q What studyis it*; Doctor? 18 A The CDC said that. 19 Q Doctor, did the CDC ever publish a document that said 20 that? 21 A Yes, sir. q22 And what document was it, sir? Are you talking about 23 where they said levels at one part per billion cannot be con 24 sidered safe, is that what you're talking about? / 1 A Levels above one pare per billion and above was not 2 safe. 3q 4A 5Q Levels at one part per billion -Or above. -- and above are not safe? 6 A For residential areas. 7 Q Yes. Dow, Doctor, Is there anywhere that anybody salt 8 that levels below one part per billion are safe? 9 A T h a t 's what that article Is about. 10 Q Doctor, ay question is does anybody say that -11 A Yes, air. 12 Q Where did they say it, Doctor? 13 A It's a report by Kimbrough and her associates. 14 Q They said below one part per billion is safe? 15 A Yes, sir. 16 Q Doctor, the only thing they said was levels at one 17 part per billion and above cannot be considered safe is exactly 18 what they said, I s n 't that correct, sir? 19 A Yes, sir. 20 Q They didn't say the opposite of that, did they, sir? 21 A Yes, sir. 22 Q If the only thing they said was levels at and above 23 cannot be considered safe Doctor, then they could not have said 24 the opposite if that's the only thing they said. 1 A They aid that for residential areas. 2 Q Yes, Doctor but we're now talking about an Industrial. 3 area* 4 A Yes, air* 5 Q Where they're not going to be eating the dirt* 6 A That's right* 7 Q Now I want to know Doctor have you seen any report 8 from anybody that would excuse you from considering that this 9 is a health hazard and support your instant position that you're 10 doing that for political reasons? 11 A Yes sir X think that ease article talks about in 12 a coo&aercial area you do not have to have the same one part 13 per billion standard* 14 Q But you apparently used that and below it in Nltro, 15 didn't you sir? Now, does the CDC have any regulatory powers? 16 It's a voluntary organization isn't it sir? 17 A No, sir, it's not voluntary. 18 Q Oh, does It have any regulatory powers? 19 A Not regulatory, no, sir. 20 Q The SPA, however, does have regulatory powers, doesn't: 21 it, sir? 22 A Yes, sir. 23 Q And the ?A is concerned here. Isn't it, sir, in 24 Nitre? 1 A I don't think so. 2 Q Doctor, would you look at 1527 again ple a s , sir. 3 A Yea, sir. 4 Q And I s n 't it talking about the EPA and remedial 5 studies done for the EPA? Isn't this attached document called 6 Witro's Proposal Response to Walter Lee, United States Environ 7 mental Protection Agency, Region III, Request for a Written 8 Description of Sitro's TCDD Remedial Work Plan. The plant wants 9 to send Monsanto's response as soon as possible. Isn't that 10 what that is said, sir? 11 A Yes, sir. 12 Q And aren't they talking about their response to the 13 EPA? 14 A Yes, but I don't know what the request was. 15 Q Doctor, aren't they talking about their response to 16 the EPA? 17 A Yes, sir. 18 Q And doesn't their response include those things that 19 we're talking about, paving the area.where it was manufactured, 20 removing the soil from contaminated area, covering the area 21 where there was a trash incinerator with crushed limestone, 22 providing a clay cap over the disposal site of the equipment 23 from the 2,4,5 T facilities; isn't that what they're talking 24 about? 1 A Yes, sir. 2 Q Now, Doctor why would tha EPA -- and i t 's not a 3 political organization, is it, sir? 4 A Ho, air. S Q It's an organization of scientists isn't It, sir? 6 A And regulators, 7 Q And regulators. And they and Monsanto worked out the 8 plan to remedy the TODD contamination exposure in ftitro with 9 what's called 1527B, h a w they not, sir? 10 A No, sir. 11 Q Wall, isn't that considered your remedial work,' 12 Doctor? 13 A Yes, sir. 14 Q What are you remedying. Doctor? 15 A We're changing the measurable dioxin levels in the 16 surface. 17 Q You're remedying the fact that you have TODD there at IS levels of 110 parts per trillion up to 10 parts per billion, 19 aren't you, sir? 20 A I don't know, at least that's part of it. 21 Q That's what this document tells you, Isn't It, sir? 22 A I can't relate that to all those sites* 23 Q Doctor, that's what this document tells you, doesn't 24 it, sir? You c a n 't relate that? It describes exactly what 1 they're doing* 2 A Vos, sir. 3 Q If i t 's attached to this project, it la related to all. <r 4 of those sites, isn't it? , S A Yes, sir, but X can't relate it to the concentrations 6 that you're talking about, 7 Q That's the point. The concentrations, It makes no 8 difference, wherever they're finding 2,3,7,8 TCDD they require 9 something to be done about it, don't they, sir? 10 A No, sir. 11 Q Oh? Where did they find it that they didn't require 12 you to do something about it? 13 A I don't know. 14 Q My question is wherever they find It they require 15 something to be done. 16 A No, sir. 17 Q Well again, that no, sir means to me that my state 18 ment is, my question to you is not correct? 19 A Yes. 20 Q It's stated affirmatively that there was some areas 21 ware 2,3,7,8 TCDD was found and no remedy was required. Now 22 where is the area where It was found and they did not require 23 you or you did not remedy that? 24 A I don't know, but the standard would be -- 1 Q Doctor, don't you understand that if you don't know 2 of any place where they ever found it and didn't require you to 3 do something about it that you cannot answer a question the way 4 you just did? 5 MR. HEINEMAN: Objection. 6 Q My question is of your knowledge isn't it a fact, 7 Doctor, that every place that 2,3,7,8 TCDD was found, you are 8 doing something about it? 9 A NO -- 10 MR. HEINEMANt Objection, there is no evidence to 11 establish -- 12 A I don't know. 13 MR. HEINEMAN: -- the findings with the location, 14 That's what the witness is trying to say. 15 THE COURTi Objection is overruled. Number one, 16 there is evidence, and number two, that's not what he's saying, 17 you're wrong on both. 18 Q Doctor, the remedial work is taken in order to prevan 19 exposure to these trace amounts, isn't It, sir? 20 A No, sir. 21 Q Doctor, why would you take remedial action except to 22 prevent exposure? What other possible reason could you have? 23 A In response to EPA's request. 24 Q Doctor, why are they requesting it? 1 A X don't know. 2 Q Wall, just speculate, Why would the EPA want this 3 work dona? 4 A I don't know. 5 MR. HEIHEMAHi Objection to requiring speculation. 6 A X don't know. 7 THE COURTr Objection is overruled. 8 Q Sir? 9 A X don't know. 10 Q Well, think, use your medical mind. You're head of 11 this department, Dr. Rousch ~- 12 A Yes, sir, 13 Q You confer with these people, you have conferred with 14 these people, it's your responsibility for the health of the 15 workers in that plant and for the environment outside of that 16 plant, you're the top man in that area. 17 A Yes, sir. 18 Q How, X want you to use the skills, the medical tralnii 19 that you've had and answer my question. Why would the EPA want 20 this remedial work done and why would Monsanto agree to do that 21 remedial work? And don't tell me you don't know, Doctor, be* 22 cause you're the head of this whole department, you've been the 23 head of It for many,many years. 24 A Yes, sir. Monitoring had disclosed the presence of I dioxin. 2 Q Yes, we know that, Doctor. Now, we*re talking about 3 the response, the remedial work being done after finding that 4 dioxin there. 5 A Yea, sir. 6 Q Why are you doing this remedial work? 7 A So that it would no longer be found present in that 8 soil 9 Q And why don't you want it to be found, why don't you 10 wane it to be in that soil? 11 A 1 don't know. 12 Q Doctor, you don't know why you don't want 2,3,7,8 TCD1 13 In soil at your plant? 14 A At this concentration -15 Q You don't have the vaguest ides, Dr. Rausch? 16 A Not at this concentration. 17 Q You don't have any idea why Monsanto agreed to do thij 18 A Not at that concentration. 19 Q Well than, Doctor, did they confer with you on that 20 point? 21 A No, sir. 22 Q Did they just Ignore you than altogether? 23 A Yes, sir. 24 Q Well, you knew of it going on, didn't you, sir? 1 A Not this, no, sir* 2 Q You didn't know of it going on? 3 A No, air. 4 Q Isn't this part of your responsibility about the 5 health of the workers at Nitro? Aren't they under your juris 6 diction and part of your responsibility as wall? 7 A Aren't who under ny responsibility? B Q I'm sorry? 9 A Who is? 10 Q The Nitro workers. U A Yes, sir. 12 Q They are, aren't they, sir? 13 A Yes, sir. 14 Q Then, Doctor, it was under your jurisdiction this 15 work was done this is in your department, isn't it, sir? 16 A No, sir, no, sir. 17 Q 2,3,7,3 TCDD exposure to your workers is not in your 18 dapartmant? 19 A Yes, sir, that Is. 20 Q That's what this is, isn't it, sir? 21 A What is? 22 Q This document deals with 2,3,7,6 TCDD in your plant, 23 and it suggests remedial action in order to protect your 24 doesn't it, sir? 1 A No, sir. 2 Q Well, Doctor, you say no, sir. That means chat you 3 know why it was done. Otherwise you can say, well, I don't 4 know, I don't have any idea. Now, why was the remedial work 5 done if it was not done to protect the health of the workers 6 being exposed to these trace amounts? 7 A I don't know why they did it. 8 Q Well, Doctor, if not for that, what other reason 9 could there be? Is there any other reason that you can think 10 o f other than health of the workers why they might have done 11 it? 12 A Because EPA told them, asked them to do it. 13 Q Doctor, now we're going In circles again. That isn't 14 a response. Why would the EPA want it done then, sir, for any 15 reason other than health of the workers? 16 A I don't know why they requested it. 17 Q My question is do you know of any reason other than 18 the fact that the health of the workers would be affected by 19 exposure to these trace amounts of 2,3,7,8 TCDD? 20 A Because they had established a standard. 21 Q Doctor, why do they establish the standard? 22 A Because they can get to that level. 23 Q Why do they want to establish that level? Who are 24 they protecting, Doctor, why are they doing that? ] A It's not related to health* 2 Q Wall, why are they doing it If it's not related to 3 health7 4 A Because EPA asked them to do It. 5 Q Doctor, no, we're talking about why would the EPA 6 establish the standard now. You said it's a standard, they're 7 doing it in response to a standard that's established? 8 A That's a speculation* 9 Q Why would they establish it, sir, other than the 10 health of the people that might be exposed to the 2,3,7,8 TCDD? 11 A No, sir, 12 Q What othar reason other than that would they have? 13 . A Because it's feasible*: 14 Q Doctor, why would they want to do it If it's feasible' 15 A X don't know, 16 Q Doctor, what reason would they have other than pro 17 tecting the health of people? 18 Cause i t 's feasible* ( 19 Q Doctor, there's all kinds of things that are feasible 20 that have got nothing to do with health. You don't go around 21 doing things because it's feasible. The EPA has the obligation 22 to protect the environment, doesn't it, sir? 23 A Yes, sir. 24 Q And why do we want the EPA to protect the environment 1 why do va want that, why do the citleans of the United States 2 want the EPA to go out and protect our environment? 3 A So that there Is no needless contamination. 4 Q And why do we want to prevent needless contamination? 5 A Because therefs no reason why we should have contami 6 nation, if it can be avoided. 7 Q Why would we want to avoid it If we can? What reason S Doctor, other than health? 9 A So that it doesn't get up to a level where it would 10 be a health problem. 11 Q Well then, Doctor, that is connected with health, 12 isn't 1c, sir? 13 A N o , s i r . 14 Q Doctor, if they want to keep It from getting up to 15 a level where it would be a health problem, isn't that a health 16 reason? 17 A No, sir. 18 Q It's tha only reason you've given. 19 A No, s i r . 20 Q What otherreason is there, what is It connected with 21 if I t 18 not connected with health? 22 A Because it's not at the level found. If there's no 23 health problem, there's no health problem, 24 Q Doctor, but it accumulates, the SPA knows it, you kno^ 1 it, I know it, the Jury knows it, everybody knows that it can 2 accumulate 3 A Ho* sir, 4 Q You don't know that? 5 A Hot in this case. We haven't been making it since 6 1969. 7Q Doctor, this is 15 years after you made it they've 8 come out with this. It's there, they found it, they want to 9 prevent exposure to it. How, why do they want to prevent 10 exposure to it, Doctor? Because it may affect the health, 11 isn't that correct, sir? 12 A No, sir. 13 Q What other reason, Doctor? 14 A Because they don't want it to be present. 15 Q Why d o n 't they want it to be present? 16 A Because that's needless contamination. 17 Q Why is it needless contamination, Doctor? 18 A Because the material was' being made. 19 Q And why do they want people not to be exposed to that 20 material? 21 A They didn't say that. That isn't what was said. 22 Q Why are they covering this up if they don't want peopiL 23 not to be exposed? What other reason do they have to pave it? 24 A Because it's contaminated. 1 Q Sir? 2 A Because it's contaminated. 3 Q And why are they covering it up? 4 A Because it's contaminated. 5 Q Aren't they covering it up so that nobody will be 6 exposed to it, air? 7 A No, sir. 8 Q Why do you want to cover up things that are contamint 9 If there'8 not going to be an exposure, Doctor -- 10 A It's the EPA approach to taking care of dioxin when 11 they can find It in the soil. 12 Q But why do they want It covered, Doctor? Doctor, 13 you've been playing a gome with me for thirty minutes here. 14 A No, sir. 15 Q You've been avoiding the obvious and only answer to 16 this question, and I take it that you're not being in good faith 17 to this Court or to this jury. You know the only reason the 18 EPA Is in existence is for the purpose of protecting our envlroi 19 cent so that we may not get unhealthy and so that our children 20 and our children's children will not get sick because of the 21 environmental contaminants, and you know the work they're doing 22 at this plant is in order to protect not just the people at 23 Chat plant but the people in Nitro, West Virginia and the people 24 at elsewhere where this water runs off. You know that, too. 1 don't you Doctor? 2 A No sir, 3 MR, HEINEMASJ: Objection, your Honor, to the speech 4 that Mr. Carr Just gave. That might be fine jury summation, 5 but it*s an improper question for the witness, and it's not 6 proper for him to give his opinions about whether h e believes 7 or doesn't believe what the witness is saying, and X object to 8 it, and I ask that it be stricken and ask that the jury be 9 instructed to disregard it, 10 THE COURT: Objection is overruled, i t 's proper. 11 Excuse me, proper question. 12 Q Doctor, you know they also paved the parking lot at 13 Krusmnrich; you knew that, too, don't you, sir? 14 A I know they were going to. I don't know whether It's 15 been done. 16 Q And they found one part per billion of 2,3,7,8 TCDD 17 in that parking lot, didn't they, sir? 18 A I don't know what they found. 19 Q Wall, nobody told you they found it there? 20 A They found it, but I don't know what level they found 21 it. 22 Q Doctor, why are they covering that parking lot? 23 A Because it's contaminated. 24 Q Doctor, you are an educated man 1 A Yes, sir* 2 Q And you know exactly what you're doing here* don't 3 you, sir? 4 A Yes, sir. 5 Q You're trying to avoid giving an answer associated 6 with health, aren't you, sir? 7 A Ko, sir, 8 Q Doctor, why are we all concerned about contamination? 9 Has it to do with health? 10 A We're concerned, because it could be health* 11 Q Doctor, that's the reason we're working with contami 12 nation, because of our health concern, isn't that right, sir? 13 A Yes, sir, 14 Q And that's the reason they're paving the lot, because IS it's contaminated, is n 't that right, sir? 16 A Yes, sir. 17 Q And that's connected with health then, isn't it, sir? 18 A No, sir. 19 Q Dr, Rousch, you just got through saying that you're ,20 concerned about the contamination because of its health effects 21 and y o u 're paving the lot because it's contaminated* 22 A Yes, sir,. 23 Q You said those things, didn't you, sir? 24 A Yes, sir. 1 Q And you*re paving the lot then because of the possible 2 health effects? 3 A No, sir. 4 Q Then why are you paving It, Doctor? 5 A Because it's contaminated. 6 Q Why do you want to pave something that*a contaminated, 7 Doctor? 8 A Because of standards that are being written and the 9 concensus of positions and feasibility and all sorts of things, 10 Q What do all these things relate to, these standards, 11 Doctor, dealing with contamination? 12 At some level of concentration in the soil It may 13 become a hazard, but not all presence -- 14 Q A hazard to what, Doctor? 15 A Only if it gets above a level. 16 Q A hazard to what? To our health, Isn't that right, 17 Doctor? 18 A If it's high enough. 19 Q So they're paving these contaminated areas because 20 they're concerned about health affects? 21 A No, sir. 22 Q Sir? 23 A No, sir. 24 Q What other possible reason, Dr. Bousch? 1 A Because it's there, 2> Q Doctor, we want through that* Doctor, it's there, 3 and how does It affect anybody just because it's there? TheyV 4 paving it so it won't get away from there, a r e n 't they, air? 5 A iio, sir. 6 Q Why are they paving it? 7 A So that it * ill be covered up, 8 Q Why do they want to cover it up? 9 A Because somebody asked them to, 10 Q Why did somebody ask them to? 11 A Because a standard has been written, 12 Q Why did they write a standard? 13 A Because at some level there's a hazard. 14 Q And, Doctor, and a hazard to what? 15 A To man if it's high enough. 16 Q What in man will be at hazard? 17 A Pardon? 18 Q What in man will be hazard or harmed if it gets high 19 enough? 20 A The man will get chloracne, 21 Q What else will they get. Doctor? 22 A Depends on what concentration. 23 Q Depends on what concentration and accumulation, 24 doesn't it, sir? 1 A Yes, air. 2 Q Chloracne deals with what, Doctor? 3 A I don't -- 4 Q It deals with aman'shealth,doesn't it, sir? 5 A Y e s ,, sir. 6 Q How, Doctor, can one part per billion in the soil 7 cause chloracne? 8 A Ho, sir. 9 Q Can that one part per billion or that 110 parts per 10 trillion in that soil, can it grow with the passage of time? 11 A H o , a i r . 12 Q It can't increase than, canit, sir? 13 A No, air. 14 Q They're concerned about covering that not because IS they're afraid that it will increase, are they, sir? 16 A No, sir. 17 Q They're concerned about thelevel that is there, 18 aren't they, sir? 19 A Yes, sir. 20 Q They want to keep that level that's there in place, 21 don't they, sir, and they don't want to let anybody get as socle: 22 or connected with it or touched by it, do they, sir? 23 A No, sir, 24 Q They do want to let people get touched by it? 1 No, sir, 2 Q They don't want to let people get touched by it? 3 A No, sir* 4 Q No, sir, to both those questions? 5 A I don't think that's related, I think this is a 6 standard that's been set that's feasible. 7 Q Doctor, the standard that's set that's feasible is 8 related to contamination, isn't it, sir? 9 A Yea, sir. 10 Q And they want to cover it up because they don't want II people exposed to it, do they, sir? 12 A I don't know why they want to cover it up, , 13 Q You don't hava any vague idea, sir? 14 A I don't know what the levels were, I don't know -- 15 Q Don't worry about the levels. Trace amounts is whet 16 we're talking about. That's what the document says, trace 17 amounts, goes down to 110 parts par trillion, and they call 18 trace amounts anything from 55 million apparently, ao don't 19 worry about that amount. They don't want people exposed, they 20 don't want to take the risk of that 2,3,7,S TCDD escaping, 21 whatever the level might be, from that soil at Nitro, do they, 22 sir? 23 A No, sir. 24 Q And, Doctor, Rogers working there in that plant was a 1 foreman in *55, up to *55 and than ha waa a transportation 2 foreman. As a transportation foreman from '55 to *59 ha is 3 responsible for all transportation of raw material and finished 4 product, w a s n 't he, sir? 5 A Yes, sir, 6 Q And from '60 to *73 ha was responsible for racelving 7 raw materials and containers, wasn't he, sir? 8 A Yea, sir, 9 Q So at least from 1949 to 1959 he had a possibility 10 of being exposed to one of the products being manufactured at 11 the Nitro Plant, that Is, 2,4,5, T, Isn't chat eorrect, sir? 12 A trace exposure, yes. 13 Q T h a t 's all I'm talking about, Doctor. He, therefore, 14 can be Included In the exposed group, can he not, sir, to a 15 trace exposure? 16 A If he would put trace people In with people with 17 heavy exposure. 18 Q I'm sorry? 19 A If you'd put people who have trace exposure at most 20 with those who have heavy exposure. 21 Q Doctor, they took people and put people in the expose 22 group if they had worked in the 2,4,5 T Production Department 23 for one day, .did they not, sir? 24 A Ho, sir. 1 Q Oh, Doctor, did they not include in the exposed group 2 everybody that worked in the 2,4,5 T that wasn't terminated 3 before 1955? By definition anyone that had baen assigned to 4 that Production Department was considered as part of the expose 5 group by Suskind by definition, wasn't he* air? 6 A No, sir. He would look at the exposure before ha 7 would put them into the exposed group. 8 Q Doctor, if you look at his study, he said by deflnitlc 9 anyone that's been assigned to that department was put in the 10 exposed group, didn't he, sir? 11 A I don't recall those words. 12 Q I think it's Exhibit 62. Plaintiff's Exhibit 1467 13 is what it would be. 14 A Thank you. IS Q Doctor, you'll sea on the second page it says they 16 were remaining 367 who ware designated by exposure, exposure 17 without qualification was 204 subjects who were involvad in 18 any aspect of chs production of 2,4,5 T including maintenance 19 from 1946 to 1969. 20 A Where are you reading, sir? 21 Q Second page, Dr. Rousch, first column, middle of 22 that column. 23 A Yes, sir. 24 Q And that is the subject group, isn't it, Doctor? 1 A Yas, sir. 2 Q Anybody who had -aver been assigned during that period 3 of time to the production of 2,4,5 T. 4 A Yes, sir. 5 Q Now, Doctor, you can have a lot more exposure working 6 for ten years in a department that handles finished product in 7 these bags and these boxes and these drums than if you were 8 working in that department for one day or one month, can you 9 not, sir? 10 A No, sir, t don't think so. 11 Q You d o n 't think so? 12 A No, sir. 13 0 Doctor, doesn't your reasoning tell you that, as you 14 described this before, that you covild have one person standing 15 right next to another worker and not have any exposure or very 16 little exposure? 17 A Y e s . 18 Q That's the reason you said they didn't get chloracne. 19 A Yes, sir. 20 0 Doctor, you know there's people got chloracne that 21 ware never in that Production Department? 22 A Yes, sir. 23 Q So, Doctor, doesn't it follow by your own definition 24 of exposure that a parson can bs working in that department for I a month and have little exposure whereas a person could be 2 working as a foreman or shipping product worker for ten years 3 and have a lot of exposure? 4 A No, sir. 5 Q That doesn't follow? 6 A No, sir. 7 Q Why doesn't it follow, Doctor? 8 A A man who is working with low level exposure for ten 9 years is not the same as somebody who works for a short time at 10 high levels. 11 Q But, Doctor, if he doesn't gat chloracne, by your 12 definition he hasn't been exposed. Don't you recall that, sir? 13 By your definition 14 A No, sir. 15 Q No, sir? 16 A No, sir. 17 Q What is your definition? Can he be exposed and not 18 have chloracna? 19 A Yes, sir. 20 Q Than you do agree then, sir, chat you can have expoau 21 that will cause these problems without gettingchloracns? 22 A No, sir. 23 Q Doctor, do you agree that this man could be exposed, 24 this Rogers could have bean exposed to 2,4,5 T and its contain!- 1 nants ? 2 A At very low levels. 3 Q Doctor, I don't care what levels. He could have been 4 exposed, could he not, sir? 5 A Yes, sir. 6 Q And he did have skin cancer, didn't he, air? 7 A Is this 422? 8 q 422. 9 A It says no cancer. 10 q Doctor, he had skin cancer, he had surgery performed 11 on it two times, 12 A But he lists there as having no cancer. 13 0 Doctor, look at the -- I know how Suskind listed % 14 him. That's what the whole thing is about. We know exactly 15 how he's listed hits, but he has a record ir. there of skin canoe 16 doesn't ha, sir, talks about the number of times he had surgery 17 performed twice on the nose, nine times on the back, once on 18 the right hand, three times on the left ear, once in the fossa? 19 A Yes, sir. 20 Q And it's called recurrent skin cancer, is it not, sir 21 A Yes, sir. 22 Q And this is the handwritten part of the record that 23 Suskind gave you which you gave us, isn't it, sir? 24 A Yes, sir. 1 Q Ka had skin cancer, didn't ha, sir? 2 A Yes, sir. 3 Q He, therefore, should ba in the group that has skin 4 cancer, shouldn't he, sir? 5 A If he has exposure. 6 Q If ha has exposure, 7 A Yes, sir. 8 Q And we have agreed chat he could have had exposure^ 9 have we not, sir? 10 A I wouldn't call him exposed. 11 Q Doctor, I'm not caring what you would call it 12 A Yes, sir. 13 Q I'm caring about what did the man report, what are th< 14 facts, not what you would say. This man working with these 15 finished products may have had exposure, may ha not have, sir? 16 And he did hava skin cancer, did he not? 17 A Yes, sir. 18 Q Doctor, the next one is Postlathwaits. 19 THE COURT: Mr. Carr, before you get into that, is 20 this a good point to break for lunch? 21 MR. CARR: Sura, your Honor. 22 THE COURT: All right. Ladies and gentlemen, we'll 23 break at this time. We will resume at one o'clock. The 24 admonishments that I've given you earlier will apply during 1 lunch break also. Court's In recess* 2 (At this time Court recessed for lunch) 3 DR* GEORGE ROUSCH, 4 resuming the witness stand, having been previously sworn, test! 5 fled further as follows: 6 RECROSS EXAMINATION (Continued) 7 BY MR. CARR? 8 Q Doctor, the next person I'd like to talk to you aboue 9 is Mr. Postlethwaite, No, 436. 10 A What was the number, sir? II Q 436, 12 A 436* Yes, sir. 13 Q Doctor, he was both exposed and gave a history of 14 skin cancer, did he not, that he was told by the doctor that he 15 had a malignant akin cancer? 16 A Yes, sir, 17 Q He's also listed in the Suaklnd computer study at 18 Plaintiff's 1472 as having skin cancer, is he not? The last 19 entry on the second page. 20 A Yes, sir. 21 Q And, Doctor, you removed him from the list although 22 he has a history given in the -- In his medical records of 23 skin cancer, the doctor told him It was malignant, the Suaklnd 24 computer record shows that he had a skin cancer, but yat you I say be didn't have a skin cancer Where do you get the Infor 2 mation, Doctor, that he did not have a skin cancer? 3 A I took It from the reading of the physician in his 4 summary, 5 Q What does the physician say In the summary, that he 6 did not have skin cancer? 7 A He did not list him as having one, 8 Q Doctor, that's the additional history taken by the 9 doctor, Is It not, sir? 10 A X d o n 't know what you mean by additional. 11 Q It says additional history. We vent through chat 12 this morning, 13 A Yes, sir, 14 Q Now, that's additional history. There's already a IS history In the record of skin cancer, is there not, sir? 16 A Yes, sir. 17 Q And there's a history In the computer -- it's 18 listed in the computer study as skin cancer, is it not, sir? 19 A Yes, sir. 20 Q ' And you, however, say that he doesn't have skin canc 21 simply based upon the point that in the additional history It 22 isn't mentioned again. Isn't that correct, sir? 23 A No, sir. I'm talking about diagnoses. It doesn't 24 list them. 1 Q Doctor, the diagnosis Is for currant conditions. 2 A No, sir, | 3 Q Doctor, what page are you reading from? , 4 A On Page 25. 5 Q Doctor, that's the diagnosis from the physical exami 6 nation. It's In that section under physical examination. Is it 7 not? ! 8 A No, sir, It's under diagnosis and impressions. Based 9 on the history and -- 10 Q Doctor, If you're looking at the same page that I'm 11 looking at -- 12 A 25. 13 Q You see the category 42, do you not, sir, the side of 14 the page, 42? 15 A Yes, sir. I don't have -- 16 Q Yes, you do. And 42 Is from physical examination. 17 That Is the diagnosis of current conditions. Doctor. 18 A But the history Is -- 19 Q Doctor, that Is a separate category, that's abnormal 20 findings that they make from a history talking about angina, 21 pneumonia, hypertension, bronchial wheezing -- 22 A Yes, sir. 23 Q They're not talking about -- Is that what you've 24 done throughout where they didn't diagnose a present case of 1 akin cancer you have ellmlnetad it? V 2 A No, sir, If -- thae Is baaed o n his Interpretation 3 of this man's condition. 4 Q Doctor, the man's condition Is his current condition. 5 We're talking about his past condition. 6 A And he -- on the history for the skin they list 7 weed bumps in 1949 and resolved since then. So there's nothing 8 here to -- when in doubt, you got to go along with whet the 9 physician says. 10 Q Doctor, the physician, the computer study, the final 11 document, this computer document was made after that doctor's 12 entry, was It not* sir? 13 A Y e , s i r . 14 Q That doctor's entry was made at the time of the 15 examination, wasn't it, sir? 16 A Yes, sir. 17 Q And this computer -- they have it listed In their 18 computer study as having a skin cancer, don't they, sir? 19 A I go back cause I don't know what that -- 20 Q Doctor, didn't they, sir? 21 A Didn't they what? 22 Q Isn't it listed in this computer study that was based 23 upon the medical records, based upon the history, based upon 24 everything else', isn't he listed as having a skin cancer? 1 A I don't know what chat means when it say V701 skin. 2 Q Doctor, we went through that once already. 3 A Yes, sir. 4 HR. CARR; Your Honor* would you direct the witness 5 to testify that he did testify that Hertaberger told him what 6 it meant and that he used that in telling us Scarberry had a 7 lung and bladder cancer. 8 THE COURT; So directed. That's what was testified 9 to this morning. Doctor, you are to assume that that is what 10 you testified to. 11 THE WITNESS Yes, sir. 12 Q Doctor, in that event V701 does mean skin cancer, 13 and that's tha latest record, isn't that right, air? 14 A Yes, sir. IS Q And, Doctor, the next person is Gorrell, and you have 16 him -- you testified on -- when I asked you about him that 17 he was exposed. Do you recall that, sir? It would be No, 12S, 18 Doctor. Doctor, do you recall in regard to Gorrell that you 19 testified that on July 9th from these records you can deduce 20 that the man possibly had exposure to TODD? 21 A No, sir. 22 Q Sir? 23 A No, sir. 24 Q You don't recall you testifying to that? I A Yes, sir. 2 Q You do recall testifying to that? 3 A Yes. sir. 4 Q Did you get any -- when X asked you than from these 5 records that you could deduce that he had exposure to TCDD, we 6 were talking about the records that X hold in my hand, part of 7 this exhibit, were we not, sir? 8 A Yes, sir. 9 Q And from those records at that time you deduced that 10 he did possibly have exposure to TCDD, didn't you, sir? 11 A Because X didn't know what utilities meant completely 12 Q Well, Doctor, it's on these records that the testimony 13 has been coming. Have you talked to somebody, has somebody 14 convinced you that utilities means something else, have you 15 talked to somebody else? 16 A X called the plane and asked them what utilities 17 meant. 18 Q Doctor, what you've done then is you've conducted an 19 investigation of your own, haven't you, sir? 20 MR. CARR: Your Honor, I'll ask that the Jury be 21 instructed to disregard that Information that he's obtained 22 as to something that ha called the plant subsequent to the time 23 I've been examining him on the point. 24 MR. HE INEMAN j Your Honor, X would like -- X would 1 like to know w h a t in the world the beat* for that is. Obvioual) 2 -- and I'd object to that request obviously Dr. Susklnd 3 had access to Hex Galloway at the plant* as this witness has 4 said, previously to have Information about what these job titles 5 were and what the job descriptions meant* and I don't see any 6 reason In the world why his testimony In that regard should be 7 stricken. 8 HR. G A R R e Did this man call Hex Galloway? 9 HR. HRIMEMANs I don't have any idea. 10 HR. CARRt You said he had access to Hex Galloway. 11 Did Dr. Rouach call Hex Galloway? 12 MR. HEXNEMAHj X don't know who he called. 13 A I called Max Galloway. 14 Q And he's at the Micro Plant? 15 A Yes* sir, 16 Q And la that the information that you got? 17 A What information? 18 Q About Gorrell that ha wasn't exposed. 19 A Yes* sir. Hot -- only indirectly. X know what 20 utilities for sure means now. 21 Q Well* and do these utilities workers Is the 22 utility plant in this Micro Plant? 23 A Yes, air. 24 Q And where la It* sir? 1 A I don't know. 2 Q Doctor do you know whether o r not It's here in 3 Building 49 across fro the Nitro 2,45 T Department? 4 A No, sir. 5 Q Do you know whether it's here where this contaminated 6 soil Is? 7 A No. 8 Q Do you know whether it was up here, sir? 9 A Not there. 10 Q Then how can you say, Doctor, that he was not exposed 11 if you d o n 't know where the plant was? 12 A 1 know what the Job, what that Job entails. 13 Q It entails working in the utility plant which auppliei 14 the power to the entire plant doesn't it sir? 15 A Yes, sir, 16 Q And it's his job to see to it that the power gets 17 there, isn't it sir? 18 A No, sir. 19 Q Oh, no? Nhat is his job? 20 A To maintain the utilities plant. 21 Q Doctor, you don't know where that plant Is with 22 relation to the 2,4,3 T, do you, sir? 23 A No, sir, I don't. 24 Q Then h o w can you deduce from the fact that ha's a 1 Q Doctor, again you're saying not measurable. 2 A Yes, sir, 3 Q No one -- these people -- your only way of 4 measuring XCDD if they've got chloracne. These people were not 5 studied because they had chloracne. They were studied because 6 there was a possibility that they were exposed to 2,3,7,8 TCDD, 7 and your plant wanted to find out what, if any, health effects 8 there might be following this possible exposure, isn't that 9 1 correct, sir? JO A Yes, sir. Yes, sir. 11 THE COURT; Gentlemen, could 1 see you at the bench 12 for a minute please. 13 (The following proceedings were had at the bench out 14 of the hearing of the Jury.) 15 THE COURT: This subjection that yo u made, X assume, 16 has somewhat cleared Itself up aboue his making the investlgatlo 17 and calling *18 MR. CARR: Oh, yeah, 19 THE COURT; This has happened a number of times where 20 things have coma out of this particular witness and then we find 21 out later there was something the basis of which was not in 22 dicated at the time or something extraneous to what he had been 23 examined on, and it wasn't clarified that it was so. I am 24 insisting at this point that the basis for anything like that I is clarified so that if and when it docs come up an objection 2 -- there is a possibility of an objection being made and it 3 can be considered but whether it goes in or not depends on 4 what it is. But I'm really getting tired of these surprise 5 sources for contradictory points of testifying from this parti 6 cular witness and I think at a minimum you should be as 7 part of the examination giving what the basis of that is. Both 8 of you gentlemen understand the record both of you know what's 9 there both of you can deduce what's been taken from outside 10 that record and you in the basis of preparation of your witness 11 and hopefully, knowing what he has been doing would be even in 12 a better position to do that, so I expect that to be done in 13 the future. 14 HE. HEIKEMAKi You mean that if there's anything he 15 knows outside the records -- 16 THE COURTt In other words, the perfect example is 4 17 that. He comes up with this conclusion contrary to what he 18 testified to under the basic Section 60 on the basis of clarify! 19 information. When he called Micro -- that being the basis of 20 It not having been made on the record before. That is an 21 example of what I'm talking about. The Initial one that I can 22 remember offhand is the call to, I think, Hartsberger, who sat 23 down and explained to him some of the bases for these classi 24 fications. This has been repeated, it comes out In the middle 1 of w h a t 18 going on coming from it. It is the type of thing the 2 nature of which should be made evident before so that it's appro 3 prlateness under the rules of evidence can be known to everyone. 4 If there is an objection, there is an opportunity for an 5 effective objection and we know what the basis of it is. Am 1 6 making myself clear? In other words, if i t 's coming up, you 7 should be in a position to know that it's coming up. That's thfit 8 bottom line of it. 9 MR, HEINEMAN: So X am instructed to bring out the 10 source of any information that he has? n MR. CARR; So that X can object to it if it's hearsay, 12 He testified on direct examination that this man was exposed 13 because he was a utility worker and than he eliminated apparent! 14 on some Information that he got after my examination because he IS talked to Max Galloway, and Max Galloway says he works in the 16 power plant or something. 17 THE COURT: Both of these -18 MR, HEINEMAN: He testified -- when you examined 19 him, he testified -- 20 MR, CARR: And he said he was exposed. 21 . MR. HEIHEMAN: He said -- 22 MR. CARR: You want to see the record? And he was 23 possibly exposed. 24 MR. HEINEMAN: Possibly, he Just admitted that. I MR. CARRi He says now only on -- I'm not going to 2 got Into this argument. 3 THE COURTt Okay. There was a change it was on the 4 basis of that call. That is an example. His change on how you 5 do these classifications the computer printout was on the basil 6 o f the call to Hertxberger. Those are the two examples of what 7 I 1 talking about. X don't want it don that way again. How 8 whether -- what information comes out o f the call or confaren 9 or whatever is admissible or not depends on what It is obvlousl] 10 What I*m saying Is the way i t 's been done these last two times 11 it's basically been out and in evidence before anyone even knowi 12 that there Is a basis that could possibly prove its admissibili 13 Into question. Whether effectively it is or not Is another 14 question, but the point that I'm trying to make and X think the 15 basic point of the rules of evidence Is that you proceed In sucf 16 a manner so that If there is a basis for an objection that is 17 known In an effective point In time that's when I'm Instructing 18 you to do, so proceed on that basis from now on. 19 (The following proceedings were had in eh hearing 20 and presence of the Jury.) 21 Q Doctor, the next person is McDade. That would be 22 numbered 32. 23 A Yes, sir. 24 Q McDade you removed from the list on what basis? 1 A I don't think he was exposed, 2 Q Doctor, if you look at the computer study, he's 3 categorized as exposed by Dr. Susklnd, is hs not? 4 A Yes, sir. 5 Q And if you look to the records themselves, sir, you 6 note that ha's listed as the safety Inspector, Do you recall 7 testifying that a safety Inspector would be exposed? 8 A To some degree, yes. 9 Q And Susklnd has him listed as exposed? 10 A Yes, sir. 11 Q In the computer study'? 12 A Yas, sir, 13 Q Is there anything in this record that tells you that 14 ha was not exposed? 15 A Thera Is nothing to say that he was. ! 16 Q Doctor, you -- the nature of this examination of 17 these records is chat you look to the record to see if they 18 reveal a possibility that the man was exposed, isn't that corre 19 sir? 20 A Yes, sir, i | 21 Q Haven't we gone through that? 22 A Yes, sir. 23 Q And we went through the fact that a safety inspector 24 has to go throughout the plant to inspect all aspects of the ] plant for safety; do you recall that, air? 2 A Yes, sir* 3 Q And he would be obligated, would he not, sir, to go 4 into the part of the plant where they make 2,4,5 T? 5 A I would think so. 6 Q So, therefore, you would think that he is exposed, 7 would you not? 8 A While he was there, but that was such a short time. 9 Q Doctor, we're not talking about terms of time, we're 10 talking about his exposure, 11 A Yes, sir. 12 Q And he has exposure, has he not, sir? If he goes int 13 that plant into that department to look at their safety equip* 14 ment once a week, once a month, once a day, once a year, he is 15 exposed, is he not, sir? 16 A During that time, yes, sir. 17 Q Therefore, he is exposed by history, is he not, sir? 18 A The question is how significant it is. 19 Q And he's listed as exposed by Susklnd, isn't he, sir? 20 A Yes, sir. 21 Q So his work records show that he was exposed, Susklnd 22 computer shows that he was exposed, and you have no information 23 that he was not exposed, do you, sir? 24 A Other than what I just -- 1 Q What you're making la your Judgment value that wall, 2 In your judgment it's not a significant exposure? ` 3 A Yes, sir. 4 Q And, Doctor, that isn't one of the criteria for this 5 study, is it, sir? 6 A Yes, sir. 7 Q Didn't we go through that, sir? 8 A Yes, sir. 9 Q Anybody that hasbeen -- has worked in that depart 10 ment, whether they got chloracne or not, if they were exposed, 11 they were exposed, and they don't try to measure the amount of 12 the exposure. There's no place in this study where Suskind 13 tried to measure the amount of exposure, Is there, sir? 14 A No, sir. 15 Q Doctor, for your information on clarification by Hr. 16 Kelneman you said then that he was exposed. Your reason then 17 for not putting him on the list was because you weren't sure 18 that it was a skin cancer, but now you're changing the tune. 19 You told me that he was exposed, you told Heinaman that he was 20 exposed, but now you're saying that he was not exposed. 21 A Yes, sir. 22 Q Dr. Rousch, don't you think that is just being a 23 little bit dishonest? 24 A No, sir. 1 Q To tell Heineman chat In your Judgment ho was exposed 2 when Heineman asked you the question to tall me whan X asked 3 you tha question that he was exposed but now today because 4 you find there is a history o f skin cancer today you change and 5 say well you now say he's not exposed Don't you think that9it 6 just a little bit dishonest? Dr Kousch? 7 A No sir I'm not trying to hide anything. 8 Q Dr. Rousch you testified -- why did you testify 9 with Mr. Heineman that he was exposed? 10 A Because X don't have fixed numbers 11 Q Sir? 12 A I don't have the fixed definition of exposure before 13 me. I have to do these individually and based on judgment. 14 Q Wall, so then your judgment just varies from day to IS day as to whether somebody is exposed or not exposed Is that 16 what you're telling us? 17 A No, sir but it can well be as X -- X look over chit 18 I have to -- If I'm not sura about something, X would call an^ 19 ask someone about It. 20 Q Doctor, you're not testifying here today as to what 21 others have told you. You're testifying based upon these record 22 The purposa of this examination that you know that I went throuji 23 was not to prove whathar these people do or do not have exposure 24 nor to prove whether they do or do not have skin cancer or lung 1 cancer* The purpose of this is to show that Che studies done 2 by Monsanto cannot be relied upon, that there were 28 cancers 3 by exposure history on the record arid that a reading of the 4 record and you have to come to the conclusion there was exposure 5 you have to come to the conclusion that there was a cancer by 6 the record, and that Susklnd put down only half, having the 7 records he cut it in half. T h a t 's the whole purpose of this* 8 We're not proving any case for or against these people. We're 9 showing the invalidity of the Hons onto morbidity study, which 10 you note to be the case. Now, Doctor -- 11 MR. HEIHEMAH: Objection, your Honor, that speech is 12 nothing but a speech, it's nothing but a Jury summation. It 13 had nothing to do with any question, which was clear by when 14 he said "How, Doctor" afterwards. X ask that it be stricken -- 15 MR. CARRi I was not allowed - 16 HR. HEINEMAH: That the Jury bs Instructed to dia17 regard it. 18 HR. CARR: - to finish my question. 19 THE COURTi You may finish your question. 20 Q How, Doctor, based upon what you know from your being 21 on the stand the purpose of this examination is, and you know 22 what the purpose of the clarification examination is -- 23 A Yes, sir. 24 Q How can you come in here and change your opinion from 1 nsoment to moment? Isn't it a feet, Doctor, that you're 2 your opinion with this man because you now see that he has for 3 sura skin cancer and had a history of skin cancer and now you 4 feel you have to take hid off the table on a basis of exposure 5 6 A Wo, sir. 7 Q Isn't that a fact, Doctor? 8 A Wo, sir. 9 THE COURTj Objection is overruled. 10 Q Doctor, did you -- have you agreed until today 11 that this man had exposure? 12 A I apparently have. 13 Q And you agree that there is -- if he's a safety 14 inspector and going throughout the plant that ha had exposure 15 by going into that plant as well today, don't you, sir? 16 A Yes, ha goes into the plant, yes, sir. 17 Q And we now agree that ha did have exposure, don't wa, 18 sir? 19 A So m e . 20 Q Did he hav exposure? 21 A Probably y e s . 22 Q And, Doctor, he should be on the list then, should 23 he not, sir? 24 A I put a question beside him. I have difficulty I Q Doctor, did ha have exposure? 2 A To soma, yes, sir. 3 .Q Did he have skin cancer? 4 A I haven't gotten to that part. S Q Does he have a history of skin cancer, sir? 6 A I don't know yet. I haven't been there. (Pause) 7 Y e s , sir , he had a skin cancer. 8 Q Then ha should be on the list, shouldn't he, sir? 9 A I haven't gotten to the last part. 10 Q Sir? 11 A 1 didn't get to the physician's interpretation. 12 (Pause) Yes, sir. 13 Q Doctor, the next one that -- is Selby. 14 A Do you have his number, sir? 15 Q His number is -- 16 A 32. 17 Q 32. And he has a history of exposure, doesn't ha, 18 Doctor? 19 A Yes, sir. - 20 Q And he has a history of cancer, doesn't he, sir, skin 21 cancer and bladder cancer? 22 A The history on Page 15 just says skin cancer. 23 Q Yes. and the very next page it says ha had a bladder 24 tusar removed? I A Tumor removed, right, 2 Q So h has & history of both, doesn't he, sir? 3 A X have difficulty reading this one. I can't tell, 4 Q What is it that you can't tell? 5 A On the physician's write up on this man, 6 Q It says bladder tumor removed 1975, doesn't it, sir, 7 has a frequent cystectomy, had one one month ago? 8 A I;30s that, yes, sir. 9 Q And you see the history that he gave was skin cancer, 10 don't you, air, on Page 15? 11 A Yes, sir, but X didn't sea what the physician said 12 about this. 13 Q The physician said bladder -- as X pointed out on 14 the additional history, bladder tumor removed. IS A I was looking for skin. Xt has a question, says skin 16 cancer, question mark. 17 Q Umhm. i 18 A So he wasn't sure that he had a skin cancer. 19 Q But he was told that the man's doctor cold him he had 20 a skin cancer, didn't he, sir? 21 A Yes, sir, but that could be without a diagnosis being 22 made. 23 Q Doctor, how can a doctor tell you that you've got 24 cancer without a diagnosis being made? He's giving you his ] diagnosis, Isn't he, sir? 2 A Yes, sir, but you c a n 't say -- 3 Q Excuse me, Doctor, isn't he giving you his diagnosis 4 when ha tells you you have skin cancer? 5 A Yes, sir. 6 Q Doctor, the next one is Waldorf, You removed Waldorf 7 from the list, did you not, sir? 8 A I d o n 't remember. 9 Q Well, look at Waldorf's records now and see If ha 10 hasn't been exposed. 11 A Yes, sir, 12 Q And look at his history on Page 15 and see whether or 13 not he told the interviewer that a doctor had advised him that 14 ha had skin cancer on his nose in the past? 15 A Y e s , sir. 16 Q And he would be on the list, would he not, sir? 17 A It depends on what the physician said, 18 Q Doctor, the physician told him that he had skin cance: 19 h e 's got a history of skin cancer, doesn't he, sir? 20 A By the man's statement, yes. 21 Q And the physician, the physician you're talking about 22 Is the physician taking the additional history? 23 A And physical exam, and 1 can't read that. 24 Q Well then, Doctor, what you can read says that he has 1 history of skin cancer doesn't it, sir 2 A Yea, sir. 3 Q And you have nothing to say that he doesn't, do you, 4 sir? 5 A No, but X would like to know what the physician said. 6 Q Well, would you look at the computer listing by 7 Suskind that had legible racords, if yours and mine Is not 8 legible. He says skin cancer, doesn't he, V701-skin cancer? 9 A It says skin. 10 Q So you have the computer that says skin cancer, you 11 have his history that a doctor told him that he had skin cancer 12 and you've got nothing that says that h did not have skin 13 cancer, isn't that correct, Doctor? 14 A That's right. IS Q And based upon those facts that you have he should be 16 on the list then, should he not, sir? 17 A Unless the physician's got something that -- 18 Q Doctor, we've already gone through that. We don't 19 have anything to the contrary. 20 MR, HEINEMAN: Objection, your Honor, he wasn't given 21 a chance to finish the question. 22 THE COURT: It was not responsive. The question was 23 limited to what ha has and tha Information available. 24 Q Based on the information you have he should be on the 1 list, shouldn't he, Dr. Rousch? 2 A X don't know, 3 Q Doctor, I'm asking you to deduce. You don't know any 4 thing, I'ret not asking you what you know whether he in fact had a 5 skin cancer. I'm asking you based upon the computer printout by 6 Susklnd and based upon what this man said his doctor told him 7 that he had and based upon that you have no information to Che - 8 fcrary, can you not say that the man has a history of skin cance: 9 A Yes. 10 Q Doctor, there's another -- if you put back on the 11 list those people that we have discussed this afternoon, we 12 come back with the fact that there were 23 cancers shown by 13 these records to the Susklnd interviewers and medical team, and 14 there were 30 cancers shown to the Moaes-Selikoff team, wasn't 15 there, sir? 16 A Yes, sir. 17 Q And we have down the fact that at the most -- oh, 18 If we include in the exposed group, if you include the four 19 remaining exposed group persons that are not on this list now, 20 there would be one, two, three out of the seven or six that 21 would be in Susklnd'& six or seven that were exposed, so you 22 can't count those twice, so if you take those three that are 23 not on this table, there's a total of 31 cancers, one question 24 able that shows up in the exposed and unexposed group, isn't 1 that correct sir? 2 A Would you repeat that question? 3 Q If you add the three cancers known in the unexposed 4 group of Susklnd's -5 A Yes sir. 6 Q If you add those three to these 27 for sure cancers 7 and leaving out the one question nark, that's a total of 30 S cancers in the exposed and unexposed group isn't it sir? 9 A No sir. 10 Q So? 11 A No sir, the ones I don't think Scarberry belong;i 12 on there. 13 Q Doctor I'm asking you -- Scarberry belongs on 14 there because you talked to Hertzbergar, and K&rtzberger told 15 you that there was lung and bowel cancer in Scarberry. Do you 16 recall that we went through that Doctor. 17 A Y e s . 18 Q So I 'm not asking you now as to what your opinion is. 19 This exhibit if we put back these persons on this list this 20 exhibit shows 27 for sure cancers doesn't it sir? 21 A It doesn't show for sure to me, 22 Q Doctor X recognize that but this exhibit shows 27 23 cancers, doesn't it, sir? 24 A Yes, sir, 1 Q That is supported by the record and by the evidence 2 that we vent through while you may. differ with the import of 3 those records, isn't that correct, sir? 4 A We went through all those, that's right. 5 Q Yes, and there's 27 here, aren't there, sir? 6 A Yes, sir. 7 Q And, Doctor, there are three then that remain In the 8 -- ware found in the unaxposed group, correct, sir? 9 A Yea, sir. 10 Q Those three added to these 27 give you how many, Dr. 11 Rousch? 12 A Thirty. 13 Q And how many -- that's 30 cancers that we found in 14 this group. How many did ^oses-Selikoff find in that group of 15 Nitro workers? 16 A Here than 30. 17 Q No. Thirty, Doctor. 18 A 1 thought there was some listed on the bottom. 19 Q No, those were asterisks that would explain -- 20 haven't you read that. Doctor Rousch? 21 A Yes, sir. 22 Q Those are asterisks that explain why there are soma 23 people listed twice, 24 A Yes, sir. 1 1 Q I s n 't that right? 2 A Yes, sir, 3 Q So there's a total of 30 there, ar e n 't there, sir? 4 A Yes, sir. 5 Q And that's the same total that we find here, isn't 6 It, sir? 7 A Yes, sir, 8 Q But not reported by Suskind, is it, sir? 9 A No, sir, 10 Q Now, Doctor, I'd like to talk to you about one other 11 -- before I do that I want to get a exhibit that doesn't have 12 the writing on It into evidence. 13 MR, CARR: Would you mark this as another plaintiff's 14 exhibit. 15 (At this time Plaintiff's Exhibit 1332 was marked for 16 identification.) 17 Q Doctor, I'll hand you what's been marked Plaintiff's 18 Exhibit 1532 and ask you if you recognise that as a memo pre 19 pared by Marcy Strauss on the Zack-Suskind study and the Zack- 20 Gaffey study? 21 A Yes, sir. 22 Q Now, a few days ago I gave you an exhibit that had 23 handwritten on it on the -- it would be the fourth page of 24 this exhibit referring to John Workman. Turn to the last page 1 of this exhibit 2 A Yes, sir* 3 Q And that dhows John Workman there without any hand* 4 written notations near it, isn't that correct? 5 A That's right. 6 Q And it says here John Workman should be counted as 7 exposed, but he had been counted as unexposed, isn't that corre 8 air? 9 A That's, what it says. 10 MR. CARR: Offer 1532, your Honor, Into evidence. 11 THE COURT: Any objections? 12 MR, REINEHAN: Object on lack of foundation, your 13 Honor. Other than that no other objections. 14 THE COURT: Objection is overruled. It's admitted 15 over objection, 16 Q Now, Dr. Rousch, do you recall when you were testify! 17 on behalf -- Mr. Heineman was asking you questions and you 18 brought up or it was brought up to you the Binghamton office 19 accident. Do you recall discussing that? 20 A Yes, sir. 21 Q And do you recall that you testified on July the 17th 22 1985 about a Dr. Kim -- this would be on Page 69 of that 23 transcript -- do you recall that? 24 A Yes, sir. 1 Q And, Doctor, at that time you were being asked about 2 the affects of exposure with relation to chloracna, and it was 3 your position then as it has been both before and since that 4 chloracne is -- that's not the right transcript. I've got 5 a wrong note on it. 1*11 find it in just a second, I've 6 given you the wrong date. (Pause) 7 Wall, Doctor, I'll get the reference In a few minutes, 8 but I'd like to continue this examination with you based upon 9 the -- oh, here It Is. I'm sorry, i t 's on July the 18th. X 10 wrote the wrong thing on my notes -- where you testified on 11 Page 69 that a Dr. Kim from the Health Department had an exami 12 nation of those people in Binghamton Office Building and found 13 no evidence of an adverse effect on them? 14 A Yes, sir. 15 Q And, Doctor, I asked yourattorneys to give me the 16 reference that supports that statement ofyours, and you know, 17 of course, that they've given me that, don't you, sir? 18 A Ho, sir. 19 Q You didn't know that? 20 A No, sir. 21 Q First of all, you knew and you had -- you said at 22 that time that they had had an examination of those people and 23 found no evidence of an adverse effect on them. You have known 24 and you knew at the time you testified to that that an Industrie 1 clinic at Binghamton, in Binghamton area examined a number of 2 people there and found a large number of adverse effects on fchoi 3 people in Binghamton. You knew that at the time you made this 4 testimony, didn't you. air? 5 A No. I didn't, sir. 6 Q Sir? 7 A No. sir. 8 Q Dr. Rousch, are you sitting here now and telling us 9 that you did not know that a broad range of adverse health 10 effects had been found in those people that were in that Bing 11 hamton office fire? 12 A No. sir. 13 Q You're not sitting here and telling us that? 14 A I didn't know that. 15 Q Doctor, you do know that it's not Dr. Kim and you do 16 know that it wasn't any health study done, you do know that the 17 source of your statement that there was no health effects is a 18 one line statement in a discussion somebody by the name of Hanc^ 19 Kim had at a meeting and nothing else, nothing more than that? 20 A Yes, sir. 21 Q Doctor, this meeting and this article, it was held in 22 October of 1981. wasn't it. sir? 23 A X don't recall that. 24 (At this time Plaintiff's Exhibit 1533 was marked for 1 identlfication.) 2 Q I'll hand you now what's boon marked Plaintiff's Exhib 3 1533 and ask you if you recognise that as that article that was 4 given to ua by your attorneys in response to toy request for 5 the citation of your statement that a Dr. Kim had said there 6 were no adverse health effects. Do you recognise that sir? 7 A This isn't -- mine was almost a one liner* 8 Q Well, it was a one liner* I'm giving you more than 9 just one line. 10 A Yes sir* 11 Q The one line is included there. It's on Page C25628, 12 but I'm asking you now do you recognise this? 13 A No, I haven't seen this. 14 Q Doctor, did you not read, did you not get the infor IS mation from some source as to what Kim said? 16 A All I had was that onestatement. 17 Q Doctor, you have it there in front o f you, the second 18 to last page, Dr. Kim, there were no -- quote "There were no 19 toxic effects observed in the approximately 160 people who were 20 exposed to some degree in the Binghamton accident" close quote 21 mar k s , 22' A Yes, sir. 23 Q One line, isn't thatright, sir? 24 A Yes, sir. ] Q That'* th# one line you're referring to, isn't it. 2 sir? 3 A Yes, air. 4 Q And that is the sum total of the information that you 5 have to support the statement that there were no adverse health 6 effects following that Binghamton fire, isn't that right, sir? 7 A Yes, sir. 8 HE. HEINEMAN: Objection, your Honor, the statement 9 taken from the context of the testimony says "I recall reading 10 that a Dr. Kim from the Health Department had an examination of 11 those people and found no evidence of adverse effects on them" . 12 That's what the statement Is, not as broad as what Mr. Carr 13 just said, 14 ME. CARRi He just answered the question *15 THE COURTi Objection is overruled. X don't think 16 those two points are contradictory. Go ahead, Mr. Carr. 17 MR, CARR: Yo u did give the doctor's answer that yes, 18 It was the sum total of his knowledge, 19 Q Doctor, this to put it in context is a -- was a 20 forum held on October the 4th to October the 7th of 1981, wasn'i: 21 It, sir? 22 A Yes, sir. 23 Q And Doctor, that -- the fire at Binghamton was in 24 February of 1981, wasn't it, sir? 1 A X don't recall* 2 Q Well, If you look at the document Itself in the 3 page of the exhibit, Doctor, it wee on February the 5th, 1981 4 according to Kim. 5 A Yes, sir, 6 Q And the subject was building reclamation after dioxin 7 contamination, wasn't it, sir? 8 A Yes, sir, 9 Q And Nancy Kim is described as part of the Bureau of 10 Toxic Substances Management, Isn't she, sir? 11 A Yes, sir. q12 And she took the position at this meeting that this 13 Binghamton Office Building should be used and it should not be 14 t o m down, didn't she, sir? IS A X don't know. 16 q Doctor, didn't you read what -- 17 A No, sir, X didn't read this. 18 Q Doctor, you read it before you testified unless some 19 body Just told you as to what Kim -- this Is the only source 20 of your information you said. 21 A There was a two sentence in an item that X read dis 22 cussing the Binghamton fire in which they quoted Dr, Kim. That 23 all, q24 Doctor, this is the quote. You have testified that 1 this is the sum total of your information. 2 A Yes, sir. 3 Q Now in that same paragraph she takes the position 4 that you shouldn't tear down the building but that's only an 5 aside. This is a statement by her that a health -- and it 6 doesn't say when or who said whether or not there was an exami 7 nation . Where does it say that these people were examined by 8 anybody at the time she made the statement? 9 A It doesn't say. 10 Q Doctor when you -- and this October. 1981 study 11 would be a half a doaen months after the fire wouldn't it 12 sir? 13 A Yes sir. 14 Q And you had In your possession an article since 15 January of *84 and at the time you made this sworn statement 16 that there were no adverse effects from that fire you had in 17 your possession ample information exactly to the contrary did 18 you not, sir? 19 HR. HEIREMAN: Objection to the premise, your Honor. 20 That completely misquotes what he just said. The statement was 21 I recall reading what a Dr. Kim said, 22 THE COURT: Objection is overruled. 23 Q Doctor, to put It In context you were asked by Hr. 24 Helnemen, "Now. there was conversation between you -- this is ] on Page $9 -- "Mow, there was conversation between you and Hr. 2 Carr with respect to the Binghamton, Mew York fire. Do you 3 remember that?" 4 Your answer was "Yes, sir". 5 Questions Mr. Heineman asked you "And that was a fire 6 in which -- he showed you an article which said it had been 7 estimated that there was 2.8 parts per million of 2,3,7,8 TCDD 8 found in the soot that resulted from that fire. Do you recall 9 that?" 10 And your answer was "YesV. 11 And then the question was "Mow, do you know, sir, 12 whether there has been a follow-up with respect to the people 13 that were exposed to the cleanup of that fire?" 14 And your answer was "I recall reading that a Dr. Kim 15 from the Health Department had an examination of those people 16 and found no evidence of an adverse effect on them". 17 Question: "Dr. Kim of who?" 18 Answer: "She's with the Health Department, X think." 19 Question: "Of the State o f Hew York?" 20 Answer) "Yes. sir." 21 How that's what you said at that time, isn't it, sir? 22 A Y e s , sir. 23 Q And you said then in response to the question whether 24 or not there had been a follow-up -- 1 A Yes 2 Q You sold yes thare had been a Dr Kim had an exami 3 nation of these people and found no evidence of an adverse 4 effect on them. Th a t 's what you said then -- 5 A Yes, sir, 6 Q How, there Isn't anything in that document to suggest 7 that Dr, Kim had an examination of those people, is there, sir? 8 A I don't know how you could say there was no toxic 9 effects if you didn't do an examination, 10 Q Well, Doctor, that may be a fact, n A Yes, sir, 12 Q But there is no statement there that she had an 13 examination of those people. First of all, there's ho state 14 ment -- no, there's no statement that she had an examination 15 of those people at all, is there; sir? 16 A No, sir, 17 Q And there is no statement that on that examination 18 there was found to be no evidence o f an adverse effect. 19 A It said there was no toxic affects. That is an 20 observed effect. 21 Q They observed, somebody -- she said that no observe* 22 toxic effect was found in hundred -- was seen in 160 people. 23 A Yas, sir. 24 Q She doesn't even say there was an examination, does I she, sir? 2 A No, sir* 3 Q But y o u said there was an examination, didn't you, sli 4 A Yea, sir* 5 Q Doctor, this question that Mr. Helnsoan asked you, 6 he specifically asked you whether or not there has boon a folloi 7 up with raspeet to the people that were exposed to that fire 8 and all you said was relating to Dr. Kim, did; you not, sir? 9 A Yes, sir. 10 Q But yet you had in your possession a follow-up that 11 shows a multitude of adversa affects, and you didn't mention 12 that, did you, sir? 13 A X didn't recall there being adverse effects. 14 (At this time Plaintiff's Exhibit 1534 was marked for 15 identification) 16 Q Doctor, I'll hand you what's been marked Plaintiff's 17 Exhibit 1534 and ask you if you recognise that as a document 18 in your possession, first of all? 19 A Yes, X recall it. 20 Q Doctor -- 21 MR. CARR: I'll offer this exhibit Into evidence if 22 it please the Court. 23 THE COURT: Okay. Any objections? 24 MR. HEINEMAN: I'm just looking It over, your Honor. 1 THE COURTs Sure go ahead. 2 HR. HEXNEMANi Your Honor, it's hearsay, and there's 3 no foundation established for It. 4 THE COURTt Objaction is overruled. 5 MR. HEINEMAWt Other than that I don't have any 6 objection. 7 THE COURTt Objection is overruled. It's admitted 8 over objection* 9 Q Doctor, do you recognize your handwriting on the 10 bottom o f that first page? 11 A Yea. sir. 12 Q What did you write on that, sir? 13 A I said it was title page. 14 Q And this was a paper chat was delivered to the 15 American Chemical Society, wasn't it, sir? 16 A Yes, sir. 17 Q Did you attend that meeting? 18 A N o s i r . 19 Q From whom did you receive this copy. Doctor? 20 A From Dr. Schecter. 21 Q I'm sorry? 22 A From Dr. Schecter. 23 Q You received it from him personally? 24 A Yes, sir. 1 Q Did you discuss the contents of it with him? 2 A No, air. 3 Q When did you receive it from him? 4 A In the last year ortwo. 5 Q Well, this is dated -- you -- oh incidentally 6 those numbers that axe on the bottom of each page are numbers 1 put there by you also aren't they sir? 8 A No sir 9 Q Sir? 10 A No t sir. 11 Q Were they numbered that way when you got it? 12 -A Z would suspect s o . 13 Q The dates that appear on these pages 1/13/84 is 14 that the date that you read the article? 15 A Where do you see 1/18/34? 16 Q Well it appears on the first page it's not too 17 clear on that so if you would turn to page numbered 7 and page 18 numbered 8 and you can read it clearly on Page 10 1/13/84. 19 Is that your writing sir? 20 A No* sir. 21 MR. CARRt Your Honor I'd like to pass Page 8 to the 22 jury if I might. 23 THE COURT: Fine. 24 (At this time Plaintiff's Exhibit 1534A was marked 1 for identification.) 2 Q Doctor would you turn to Fago 3 for iso. 4 A Yes, air. 5 Q And advise me whether or not 1334A correctly excerpts 6 a portion of that page where it starts "Medical Pathology"! 1 A Yes, sir. 8 Q And ends with the words "and other findings"? 9 A Yes, sir. 10 MR. CARR: Offer 1534A into evidence if it please the 11 Court, 12 THE COURT; Same objections? 13 MR. HEXHEMAMi Yes, your Honor. Did X understand It 14 excerpts only part of it? IS MR. CARR; That's correct, this part of It beginning 16 with the words "Medical Pathology" and ending with the words 17 "other findings". 18 MR. HEINEMAM: Oh, A is that? 19 MR. CARR: 1534A is that. X better give that page 20 a number, too. 21 (At this time Plaintiff's Exhibit 1534B was marked 22 for Identification.) 23 Q Doctor, 1534B is the Page 8 from Document 1534, is 24 it not, sir? 1 A Yes, sir. 2 MR. CARR: It Is 1534B that has been pasted to the 3 Jury, and I'll offer 1534B Into evidence as veil your Honor, 4 THE COURT: Same objections? 5 MR, HEINEKAli: Yes, may my prior objection be ~ 6 THE COURT; Incorporated? 7 MR. HEINEMAN: For A and B. 8 THE COURT: Sure, so noted. Same ruling. 9 Q Doctor, now this is a paper written after the 1931 10 article of Kim, Is it not? 11 A When was the paper given, do you know? X can't tell, 12 but X think 60 ' 13 Q Well, there are dates in It that refer to 1983, work 14 done in 1983. If you'll turn to Rage 18, you'll see it talks IS about samples that were taken in 1963, two years after the 16 initial exposure. 17 A Yes, sir. 18 Q So that would be -- obviously this article was 19 written in point of time after the 1981 session was had in 20 which you referred to Dr. Kim's statement, isn't that correct, 21 sir? 22 A Yes, sir. 23 Q And this shows that at an Industrial clinic, an 24 occupational medicine clinic that they noted in a group of 1 patients from this building one case of chloracne, transient 2 erythema, three cases of skin cancer, three cases of liver 3 pathology, hypertension, one suicide, nervousness, irritability1 4 Insomnia, Impotence, fatigue, elevated serum chlolesterol, 5 triglyceride levels elevated, pschoneurotic illness leading to 6 time off from work, psychiatric treatment, headaches, and 7 peripheral nerve impairment and other findings. Do you see 8 that, sir? 9 A Yes, sir, 10 Q Now, Doctor, there was only one case of chloracne in 11 that building, wasn't there, sir, according to this, in this 12 occupational medical group? 13 A Yes, sir. 14 Q And there was a broad range of problems going from 15 suicide to cancer in these people chat were in that building, 16 wasn't there, sir? 17 A Yes, sir. 18 Q Dr. Rousch, when you testified here, when Hr. Keineman 19 asked you the question were there -- has there been a follow* 20 up with respect to the people that were exposed to that cleanup 21 of that fir -- 22 A Yes, sir. 23 Q You knew and you mentioned only that Dr. Kim one line 24 throw-away statement at an oral ** at a meeting, an oral stati 1 mont, not even a written paper at shat, but an oral statement 2 you had in your possession at that time and was aware of the 3 fact that on this follow-up thera had been all of these things 4 found in these people after that Binghamton fire; you had that 5 Information in your knowledge and in your possession, this Is 6 your handwriting on the document. Dr* Pousch, 7 A Yes, sir, 8 Q Dr. Pousch, why in response to the question that Mr, 9 Heineman gave you, why did you want this Court to believe that 10 these -- that their -- they had found no evidence of an 11 adverse effect on these people when you knew and you had In 12 your possession this document that you sent for that showed 13 the exact opposite, that there had bean a number of serious 14 health effects on these people? IS A This states that the etiology findings are not clear, 16 Q Doctor, would you answer m y question please, sir. 17 A I didn't recall having read this article, because 18 this was related to levels of dioxin in PCB's and tissues, not 19 this statement here. 20 Q Yes, but. Doctor, the point that I'm making is that 21 Mr. Heineman asked you a specific question -- 22 A Yes, sir, 23 Q -- about whether or not had there been a follow-up 24 with respect to the people that were exposed to the cleanup of 1 that fire 2 A Yes, sir. 3 Q -- and your response was a Dr, Rim follow-up, had 4 an examination. First of all, Dr, Rim did not have an exami 5 nation or at least there's not statement in your reference that 6 she did. 7 A that's right, 8 Q And secondly, there has been a follow-up, which this 9 document shows the follow-up and shows all kinds of adverse 10 health effects. My question, Doctor, is not whether these 11 things are true or false, 12 A Yes, sir. 13 Q My question is why did you answer Mr. Heineman1s 14 question the way you did without giving this information which IS you should have given at that time? 16 A I didn't recall this. 17 Q And that's yoursole explanation, Doctor? 18 A Yes, sir. 19 Q You don't recall that there had been all these health 20 effects, Doctor? 21 A 1 don't recall having read this. 22 Q Doctor, that's not what I 'm even asking you. My 23 question is you don't recall that there has been a lot of healt) 24 effects that have been reported subsequent to this Binghamton 1 fire, there have bean a number of studies end I'm not bringing 2 those up, Doctor, to show you that there have been other health 3 affects, I'm bringing this up to ask you specifically this is 4 information that you had In your possession -5 A Yes, sir, 6 Q -- at the time you were answering -- I can't prove 7 that you know of the other articles dealing with the health 8 effects, but X can and have proven that you knew of these 9 health effects, you knew of this follow-up exam, and so I'm 10 asking you why did you give the answer that you did to Mr* 11 Uelneman when you knew that it wasn't true? Oh, It might be 12 technically correct -- 13 HR. HEINBMAHt It's been asked and answered, answered 14 twice. 15 THE COURTs Objection is overruled. That was not 16 answered, 17 A X didn't recall this, X remember this article only 18 by virtue of the fact they were measuring residues of dioxin 19 and furana and FCB's in adipose tissue. That's what X remember. 20 That's what the substance of this article is about, 21 Q Doctor, the substance o f the article that you referrec 22 to, the Kim article, deals with whether or not to tear the 23 building down. There is absolutely no other mention in that 24 document about health effects associated with Binghamton other 1 than that on* line throw-away t that on* lino statement, nothing 2 ala*. 3 A Yes, air, 4 Q You remembered that you tell us, and you could not 5 remember a suicide, three eases of skin cancers, three cases of 6 liver pathology, psychiatric treatment, headaches, paychoncurot;, 7 illness*, peripheral nerve impairmentj you couldn't remember 8 those things, but you could remember the one line throw-away of 9 Kim? 10 A I had read that In preparation for this trial. 11 MR. CARR: I have no further questions, your Honor. 12 THE COURT: Ladles and gentlemen, we'll take a short 13 break at this time, and then we will resume testimony. The 14 admonishments that I have given you earlier will apply during IS this break also. Court's in a short recess, 16 (At this tlms a short recess was taken.) 17 DR. GEORGE ROUSCH, 18 resuming eh* witness stand, having been previously sworn, testi 19 fied further as follows: 20 RECLARIFICATION 21 BY MR. HEXNEMAN: 22 Q Dr. Rousch, I'd like you to pifck up in front of you, 23 If you would there please, Plaintiff's Exhibit 1533. Do you 24 have It there, sir? ] A Yes, sir. 2 Q Would you read to tlia Jury -- turn to Page 3 where it says Page 188, 4 MR, CARR: What page, Counsel? 5 MR, HEINEMANj 188. 6 Q I'd like you to direct your attention to the remarks 7 attributed to Dr. Kim there, okay? 8 A Yes, sir. 9 Q Would you read that first sentence aloud, 10 A "There were no toxic effects observed in the approxi 11 mately 160 people who were exposed to some degree in the Bing 12 hamton accident." 13 Q All right, Now, sir, she uses the term observed, doe: 14 she not? 15 A Yes, sir. 16 MR. CARR: Objection to the leading form of the quest! 17 THE COURT: Objection sustained. Rephrase it please, 18 Q Does she use the term observed, sir? 19 A Yes, sir, 20 Q Now, could one reach the conclusion based upon the ustt 21 of that term that someone had looked at these people? 22 A Yes, sir, 23 Q Why did you say in your testimony, sir, that there had 24 been an examination? 1 A I know of no other way than wo can say chat there are 2 no toxic effects unless a history, a physical examination and 3 laboratory studios were done. 4 Q Was that an assumption on your part, sir? 5 A Yes. 6 Q Based upon what, the language made in chat statement? 7 MR. CARR: Object to the leading form of the question, 8 THE COURT: Objection sustained. 9 Q Was that aseimiptlon based upon -- 10 A Yes, sir. 11 Q -- that statement? How, if you look at Plaintiff's 12 Exhibit 1534, sir, you sea that? 13 A Yes, sir. 14 Q This is -- how many pages are in that exhibit, sir? 15 A 38. 16 Q And what is the title of that paper? 17 A Biological Markers after Exposure to Polychlorinated 18 Dibsnso Dioxins, TCDD's, Polychlorinated Dibenzo Furana, PCDF's, 19 Polychlorinated Biphenols, PCS'3, Part I, Residues of T C D D 's, 20 PCDF's, and PCB's in Adipose of Humans Exposed to a Transformer 21 Fire. 22 Q Now, sir, other than Page 8, which Mr. Carr showed you 23 and which I think is Exhibit 1534B, that was passed to the jury, 24 what does the majority of this paper deal with as best you can 1 tail? 2 A The presence of dioxin, furana, and FCB's, both in 3 environment as well as in these people exposed to these three 4 families of chemicals* 5 Q Does it contain figures and levels? 6 A Yes, sir. 7 Q Does it contain pages with chromatographic graphs? 8 A Yes, sir. 9 Q Photographs taken at the time of the fire, cleanup? 10 A Yes, sir. II Q Three pages of references? 12 A Yes, sir. 13 Q Tables of measurements? 14 A Yes, sir. 15 Q So that how would you characterize the gist of what 16 this document is about, 1534? 17 A I t 's a study to determine what levels of these family 18 of chemicals are found in the fat of man and apparently related 19 to the fact that they were involved in this transformer fire. 20 Q Now, with respect to Plaintiff's Exhibit 1534A that 21 begins with this sentence; you see that, sir? 22 A Yes, sir. 23 Q If you look at Plaintiff's Exhibit 1534B; do you have 24 that before you, sir? 1 A Yes, sir. 2 Q Is that the document from which this extract is taken? 3 A Yes sir* j 4 Q What is the sentence immediately before the one where 5 this extract begins? 6 A Xt states the etiology o f these medical findings is 7 not always clear. 8 Q What does etiology mean sir? 9 A Etiology has to do with the cause of the abnormality 10 that are found when these people were examined* In ocher words, 11 if a man has a sore throat, and if we culture his throat and 12 find he's got streptococcus in it, the etiology of that sore 13 throat was the streptococcus. 14 Q What you'd call a strep throat? 15 A Strep throat. And so the etiology of these things a n 16 listed here he says Is not always clear. 17 Q Sir, I'd like to take you back, if X may, to the 18 Susklnd morbidity study. Let's look at -- I'd like to find 19 some of the exhibits though that you had at the time when we 20 were going through this before. (Pause) Let me hand you, sir, 21 what's been previously marked as Defendant's Exhibit 9 2 2 and 22 923 and Plaintiffs' Exhibits 1513 and 1316. Do you recognise 23 those, sir? 24 A Yes, sir 1 Q And what are those? 2 A Those were the notes I made when I went through those 3 records. 4 Q The records being Plaintiffs' Exhibit 1468? 5 A Is that -- X can't tell. 6 Q X think that's right* Let's look at Plaintiffs' 7 Exhibit 1473C in connection with what we went through once befi 8 HR* HEINEMAN: Tour Honor* X neglected to mark these 9 pages. 10 THE COURTi Which pages are thosa? 11 MR. HEXNEMAN: That Dr. Rousch and I went through the 12 other day with a defendant's number. 13 THE COURT: Why don't you put a number on it. We'll 14 make it a group exhibit then. 15 (At this time Defendant's Exhibit 924 was marked for 16 identification.) 17 Q Dr. Rousch -18 THE COURT: What number is that? 19 HR. HEIKEMAii: Xt's 924* your Honor. 20 Q Would you agree with me that Defendant's Exhibit 924* 21 a group exhibit* consists of six pages done in green marker 22 that ware the results of clarification examination that you and 23 I did the other day on the Susklnd morbidity study? 24 A Yes, sir. 1 Q Now, one of the ones that Nr. Carr just asked you 2 about was Hr. McDade. You remember that, sir, Edward HcDade? 3 A Yes, sir. 4 Q And when we went through this the last time, how did 5 you characterize Hr, HcDade as being exposed or unexposed? 6 A Exposed. 7 Q And how did you characterize whether or not he should 8 be included in Table 1 as an exposed person? 9 A I said you need more information. 10 Q And what was the basis for that conclusion, sir? n A The doctor had said that he had a tumor of the skin, 12 but he didn't say any more than that, and so 1 said that he 13 hasn't established that he's -- that he has a cancer, and X 14 wanted to get from the doctor what he thought about that. IS Q Now, sir, if 1 am not mistaken, in reference to a 16 prior exhibit, X think a memorandum by Tim Long of your depart 17 ment, you and Hr, Carr discussed the meaning of the term tumor. 18 Do you remember that? 19 A Yes, sir. 20 Q And whether or not a tumor could either be malignant 21 or whether It could be benign. Do you remember that, sir? 22 A Yes, sir. 23 Q What term did the doctor use who did the history and 24 physical examination on Hr. HcDade on Hr. -- on Dr. Suskind's ] behalf? 2 A I don't recall from this, but from that cause he said 3 it was a tumor;without further definition. 4 Q All right. Now, why is it, sir, -- strike that -- 5 when you summarise on Page 6 of Group Exhibit 924 what should 6 be done with Hr. HcD&ds, what did you say? 7 A X said I wanted to get more information. 8 Q Did you say he should be stricken from the table? 9 A No sir. 10 Q So you didn't take him off did you? 11 A No sir. 12 Q You said you wanted snore information? 13 A Yes sir. 14 Q And that's what you said back here didn't you sir? 15 A Yes sir. 16 Q Now, the interview on Mr. McDads what does it say 17 with respect to a skin cancer? 18 A On Page 13 he said yes, he had a cancer, and it was of 19 the skin. 20 Q All right. Now, do you have the HcDade record in 21 front of you there, sir? 22 A ` No, sir. 23 MR. KEINEMAN: What number is it, Joe, can you tell me 24 MR. CARRi 32. I MR. HEINEMAN: 32? 2 MR. CARRi I'm not Jo, but that's th number. 3 Q Now, would you look at what th physician said and 4 look at all th things th physician said. 5 A It says ho had had removal of several skin tumors with 6 out further definition on history, and on examination he did not 7 find a cancer or anything else other than some hyperkeratotlc 8 lesions that would go with th fact, and th fact that ha had 9 actinic changes would be consistent with the fact tkat he had 10 had skin tumors. Now, then they summarized this, and he left 11 it out and didn't talk anything about tumors here, so -12 Q Now, when they -- when you say summarise, what are 13 you referring to, sir? 14 A The dermatologist who said he had removal of skin IS tumors without further definition, whan he then wrote down his 16 diagnosis he was talking about th changes in the skin and made 17 no further mention about the skin tumors. 18 Q What is that page, Is it Pag 25, sir? 19 A Th first page Is on Page 21. 20 Q And that's where they start the history, is that 21 right? 22 A Th a t 's right. 23 Q How, Mr. Carr was referring to the statement on this 24 form that says additional history, is that right? 1 A Yes, sir. 2 Q Nov?, sir, when we discussed this before, did these 3 examinations and interviews ell begin at the same stage or did 4 some of them occur simultaneously? 5 A They were taking place simultaneously. 6 Q So that while -- how many interviewers were there? 7 A I just know there were at least two. I don't know 8 whether there was more or not. 9 Q All right. How many physicians were there? 10 A There were a number of them. There ware general 11 internists, several dermatologists! and I think there was a 12 neurologist as well at least. 13 Q Now, did It occur chat a physician could be taking a 14 history and physical exam from someone who had not previously 15 been interviewed by the interviewer? 16 A Yes, sir, 17 Q And could it occur that the Interviewer was inter 18 viewing someone -- 19 MR. CARR: Object unless the witness has first stated 20 that he was there and he knows that to be the fact. Otherwise 21 it's pure speculation. 22 THE COURTt Objection sustained. 23 Q Do you know it to be a fact, sir? 24 A Ho, sir. 1 Q You do not? All right Do you hava a so urea of your 2 understanding? 3 MR CARR: Your Honor X object to any source of 4 understanding. It has to be his knowledge. 5 THE COURTt Objection sustained. 6 MR. HEXNEMANt Well, your Honor he can certainly say 7 what his source is. I may not be able to get him to say what 8 the man told him, but -- 9 MR. CARR: Your Honor, counsel knows that's doing by 10 Indirection that which he may not do by direction. 11 THE COURTt Objection is sustained. 12 Q Dr. Rousch, if you were to assume, sir, that the 13 physician that a men went in for his physical exam and had 14 not yet been interviewed -- 15 MR. CARR: Object, your Honor, unless there is evidenc 16 that that's in fact what occurred and that this witness knows 17 that that occurred. I object to it. 18 THE COURTs Objection is sustained. 19 Q Weil, sir, the physician in this case would take a 20 history, doesn't that appear from the record, sir? 21 A Yes, sir. 22 Q Does It appear from the records -- other than the 23 word additional history, does it appear from the records whethei 24 or not the physician know that that person had already been 1 interviewed? 2 A No sir. 3 Q Now the physician took a history as la reflected In 4 the record -- ,5 A Yes, sir. 6 Q And is there -** there is -7 HR. CARR: Your Honor to keep the record straight S it's additional history the physician took and i c fs clear from 9 these records. 10 THE COURT: Could you rephrase the question please? II HR. HEINEMAN: Am I to understand, your Honor 12 I'm not sura X understand. 13 THE COURT: The point of clarification for additional 14 history. 15 HR. HEINEMAN: I have to use the word additional? 16 THE COURT: X believe that it fcas so noted and the 17 witness agreed a number of times.that it was additional history. 18 I'm ordering that you clarify the question In that respect. 19 HR. HEINEMAN: All right sir. 20 Q Now in this additional history as it's listed on the 21 form there sir the -- there was one of chose histories taker 22 by a dermatologist? 23 A Yes sir. 24 Q And according to the record was one of those histories 1 taken by another type of doctor? 2 A , sir. 3 Q And who what kind of doctor wee that? 4 A A general Internist. 5 Q So there were two 6 MR, CARRi Your Honor X object unless this history 7 this record that we have here shows that. I'd hata to go throug 8 cross examining this witness again but tha exhibit that I have 9 on McDade does not have the name of the physician. It has a 10 nurse ID, and I'd hate to have to go through all this again. 11 MR. HEXNEMAN: X d o n 't understand what the objection 12 is. 13 MR. CARR; My objection is is that the witness is 14 speculating and that this record does not support what he is 15 saying as to your suggestion, 16 THE COURTi Gentlemen, I 'd like you to approach the 17 bench with a copy of that record. X don't have a copy of It, 18 (The following proceedings were had at the bench out 19 of the hearing of the jury.) 20 MR, CARR;: Here's the additional history. There's a 21 nurse's ID, but no doctor's name. 22 MR. HEIHEMAN: Your Honor -- 23 THE COURT; Th a t 's blood pressure X assume? Yeah 24 that is. ] MR. HEINEMAM: There is an Identification of the 2 physician by nat&e end number on the document here, 3 HR, CARRi Where? 4 MR. HEIHEMAH: I've seen it. 5 6 THE COURTt I doni 't see it. HR. CARR: It's not there. ^ 7 MR. HEINEMAN: I thought I'd seen one. I've seen It 8 on the others. 9 MR. CARR: It is on some it's not on others, Counsel 10 That's my point. 11 THE COURT: I don't see one. It's about four pages, 12 and I don't think there Is one. There's a point, there's a 13 place for it, but there's nothing In it, an ID or name. 14 HR, HEINEMAN: Well, in any event, your Honor, my 15 point is this. If you look at Page 25 *- 16 THE COURT) Umhm. 17 MR. HEIHEMAH: Where Che physician's diagnosis is 18 given you've got -- 19 MR. CARR: Holdt It. It doesn't say physician's 20 diagnosis -- 21 THE COURT: That's not -- 22 HR. CARR: It says diagnosis impression. 23 THE COURT: That's not the point. The point is you 24 were talking about this additional history and different 1 Caking lc. 2 MR HEINEMAN: T h a t 's right 3 THE COURT: And that doesn't have anything to do with 4 the diagnosis, number one, Humber two, the diagnosis doesn't 5 tell us who wrote It either, 6 MR. HEINEMAN: If y o u 'd look at it, sir, here's the 7 way it appears to roe. Y o u 've got -- 8 MR. CARR: My objection la that there's no doctor 9 identified here. You said he said there was, and Z say 10 there is not. I object to your -- 11 MR. HEX NEMAN; May I point something out here, Mr, 12 Carr? 13 MR. CARR: Sure, 14 MR. RBINEMAN: The first throe diagnoses, your Honor, IS heart disease, ulcer disease, and hiatal hernia would hardly 16 be that which would be diagnosed by a dermatologist, whereas 17 Item 4, 5, and 6 are clearly Items that would be reported by 18 a dermatologist, solar alastosis, actinic keratosis and some 19 thing which X think Is an athlete's foot condition, Mow, it 20 also appears that the handwriting is different, that a different 21 pen was used, that you've got somebody that did ttvs first three 22 and somebody else that did the last three. 23 MR. CARR: Nobody's quarreling with that. Counsel. 24 THE COURT: First of all, that's not -- that is putt 1 -- that Is store speculation than you're asking, number one, 2 Number two, you're telling me that an Internist or a derma to log: 3 who is in cither of those positions is not capable from any kini 4 of training of making those same diagnoses and impressions, 5 which I'm not so sure of. Number three, the whole point is 6 about the additional history part and not the diagnosis or 7 impressions and there is nothing that that relates to that. 8 There is a point and place for a physician's cams and/or 9 physician's ID number, neither o f them is in there. The objec 10 tion is well placed as far as this document is concerned, and 11 the objection is sustained. 12 (The following proceedings were had in the hearing 13 and presence of the jury.) 14 Q Dr. Rous eh s insofar as your conclusion about Edward IS HePade is concerned, the basis upon -- would you tell us the 16 basis upon which you said you need more information? 17 A We have an opinion by the doctor of a skin tumor not 18 otherwise identified. 19 Q In reviewing these records, sir, did you attribute 20 any different importance between what was reported to the inter 21 viewer and what was seen from the portion of the exam filled in 22 by the physician? 23 A I look at both o f them, and when In doubt, is X took 24 the opinion of the doctor who was examining the man. 1 Q Did you consider the history taken by the doctor in 2 reaching th decisions; you m a d e which arc reflected in Defend. 3 Exhibit 924? 4 A Yes, sir, the physician who does an examination always 5 asks history related to what examination he does. 6 Q And does a history appear? 7 A Yes, sir. 8 Q Under the termadditionalhistory? 9 A Yes, sir. JO Q Now, with respect to Harry Reynolds, Hr, Reynolds, 11 how did you characterise Hr. Reynolds with respect to exposure, 12 sir? 13 A Not exposed, 14 Q All right, sir. How, if 1 recall correctly, when you 15 were examined by Hr, Carr a few moments ago, you gave the oplnl^ 16 that ha could possibly be exposed, is that right? 17 A Yes, sir, but X would call him minimally exposed at 18 best. 19 Q How when you went through the records you characterise 20 him, how did you characterize him? 21 A 1 called him not exposed when 1 went through it. 22 Q All right. So that If as Hr, Carr represents In 23 Plaintiffs' Exhibit 1473C, Dr, Suskind characterized Harry 24 Reynolds as unexposed, would you find any fault with that? A No, sir. I Q Now, air, Mr. Carr asked you about Ed :Volz, Now, let 2 3 me move on to Ed Volz here for a moment. As I recall, sir -- 4 oh, I'm sorry, do you want to get It first? Do you have it the 5 A Yes, sir. Q Now,for Mr. Volt what did he cell the Interviewer with 6 7 respect to his cancer history? A He said he had a cancer and it was a bladder cancer. 8 9 Q All right. So he said yes to bladder? A Yes, air. 10 Q But he did not say he had a skin cancer, correct? 11 A That'8 right. 12 13 Q All right. Now 1st me direct your attention to 14 Exhibit 1472, which is the computer printout here. If you look 15 down for Hr. Volz, would he be No, 101 there, sir? 16 A Yes, sir, he would be listed really as 52, 17 Q All right. Now V701 la what, sir? 18 A It says other. 19 Q V702 says what? 20 A It says miss, and I think that means there's no other 21 lesion. 22 Q V703 says what, sir? 23 A It says also miss, which means nothing else. 24 Q All right. So V701 there's a positive for other, but 1 a miss for V702 and a miss for V7Q3, correct? 2A 3Q 4 Volz? 5 Yes, sir* What does the doctor's record show with respect to Mr. MR. CARRt Counsel, for the record are you talking 6 about the additional history, are you talking about medical 7 records, are you talking about the interviewer, which are you 8 talking about? 9 MR. HEINEMAN: The physician portion of the record 10 that's before him. 11 MR. CARR: The additional history portion? 12 THE WITNESS: Yes, sir. 13 MR. HE INEMAN: And the entire record. Additional 14 history, physical exam, whatever, the physician portion of it* 15 Q What does it say, sir? 16 A The physician said he had a basal call carcinoma of 17 his back ten or twelve years ago. 18 Q So the physician says basal call cancer of the skin? 19 A Y e s . 20 Q What does the physician say about the bladder? 21 A It says that In 1931 he had a bladder tumor removed 22 that was benign, and there had been no recurrence since 1951. 23 Q Now, what does the fact that the Interview is yes for 24 bladder, no for skin, but tha doctor's portion of it says no 1 for bladder and yes for skin tell you about what V701 and V702 2 and V703 mean on this printout? 3 A That comas under the classification of other and calls 4 it a bladder cancer, and nothing -- 5 Q The only place in the record where there is a yes on 6 bladder is where, sir? 7 A There it says yes, that's what the history says. 8 Q Which history? 9 A The history as recorded on Page 15. 10 Q By whom? 11 A By the interviewer. 12 Q All right. So if the interview is yes for bladder 13 V701 is positive for other type of cancer, correct? 14 A Y9. 15 Q But Che doctor is no for bladder, correct? 16 A Benign bladder. 17 Q And yes for skin? 18 A ies. 19 Q But the interview is no for skin, correct? 20 A Yes. 21 Q And there's no skin listed for Mr. Vola in either 22 V701, 702 or 703, correct? 23 A That's right. 24 Q So what does that tell you what V701 and V702 are 1 reporting? 2 A What the history says, and that's all. 3 Q To whom? 4 A To the interviewer. 5 Q And nothing else? 6 A That's right. 7 Q Now, as a result of this record, sir, would you S include Ed Vola in Table 1 as an exposed person? 9 A Yes. 10 Q For skin cancer? 11 A Y e s . 12 Q Even though he did not report it to the Interviewer? 13 A That's right. 14 Q And you put him as a what for bladder? 15 A I would take the bladder off, because it's benign and 16 it's not a cancer. 17 Q Evan though he said yes to the interviewer? 18 A Yes, sir. 19 Q Because of what the doctor said about him? 20 A Yes, sir. 21 Q Now, with respect to Harry Honaker, sir, do you 22 included him, did you not? 23 A Yes, sir. 24 Q On the basis, as I recall, that either one -- 1 HR. CARR: Object to the leading form of the question 2 if it please the Court 3 THE COURTi Objection sustained. 4 Q Okay, On what basis was he included? 5 A Because he had -- he was exposed and he had leukemia 6 and he had a prostate cancer. 7 Q And ha's -- how many times is he on the list in the 8 Suskind morbidity study? 9 A You can only be on the list once. 10 Q So he*s on it once? 11 A Y e s . 12 Q All right. How with respect to John Selby, sir, if 13 X recall, Hr. Carr asked you about Mr. Selby, Do you recall 14 Mr. Carr asking you about Mr. Selby, sir? 15 A Yes, sir. 16 Q All right. 17 MR. CARR: Your Honor, I've been waiting, and so far 18 all this reclarification is is a rehash of his first clarificati 19 examination, and there's nothing new that he is bringing out at 20 this point in time. All he's doing Is repeating exactly what 21 he did earlier, and I object to his repetition. 22 MR. HEINEMAK; Your Honor, we are indeed clarifying 23 those people that Mr. Carr went through with respect to Mr. 24 Carr's claiming or thinks -- suggesting to tha witness that 1 they should be as he had originally classified them, and what 2 I'm doing is showing that this witness' original classification 3 as set forth here was correct. 4 MR. CARR: Your Honor, I went through only the ones 5 that Mr. Heineman had some questions and the doctor had a 6 question about in their clarification examination. I have that 7 right to do that. There wasn't anything new that I brought out 8 in my examination that would warrant this rehash of the same 9 subject. If we continue this way, then I would have the right 10 to ask the questions about the same thing that Mr. Heineman just 11 talked about and then he would have the right to talk about. 12 Reclarification examination I thought was for the sake of 13 explaining something new that I may have brought out in my 14 examination and not for the purpose of rehashing material that 15 he's already hashed once, and I object to it. It's repetition. 16 THE COURT: Objection is sustained. 17 MR. HEINEMAN: Your Honor, I'm only going over the 18 ones that he covered. 19 THE COURT: The objection is well placed. It's sus 20 tained. 21 Q Sir, Mr. Carr asked you about Mr. Scarberry, did he 22 not, sir? 23 A Yes, sir. 24 Q Now, he reviewed with you, did he not, sir, the 1472 1 with respect to Mr. Scarberry? 2 A 1472? Oh, this? 3 Q That's cha computer printout, sir. 4 A Yes, sir. 5 Q Now, on 1472, sir, he pointed out to you that Sear- 6 berry -- 7 MR. CARR: Object to the leading form of the question, 8 and there isn't anything new that I'm aware of that counsel can 9 get into on this point. 10 MR. HEINEMAN; Well, your Honor -- 11 THE COURT: Objection as to form is sustained. He 12 may rephrase the question. 13 Q Doctor, if you look at Scarberry, sir -14 A Yes, sir. 15 Q What does 1472 say with respect to Scarberry on V701 16 and V702? 17 A That he had history of a lung cancer and a bowel 18 cancer. 19 Q History of lung and bowel? 20 A Yes, sir. 21 Q And the record demonstrates, sir, what with respect 22 to the interview? 23 A That in fact this lung and bowel cancer -- 24 Q Yes to both? 1 Yea, air. 2 Q V70I and V702? 3 Yes. 4 Q Now, what does the doctor say about Homer Scarberry? 5 HR. CARR: Your Honor, that's repetition. W e 've gone 6 through that already. 7 HR. HEINEMAN: Well, your Honor -- 8 THE COURT: Objection sustained. It is repetition. 9 HR. HEINEMAN: May X speak to it. speak to the object! 10 The implication that Mr. Carr was making, your Honor, in the 11 reexamination of the witness was that Dr. Susklnd had reached 12 the conclusion vis-a-vis what he heard from Vicki Hertzberger. 13 that Dr. Susklnd had reached the conclusion that indeed Homer 14 Scarberry had cancer, and vhat I'm seeking to demonstrate is 15 that all these V701 and V702 reports are what's been told the 16 Interviewer, and they don't reflect the conclusion of Dr. Suskir 17 with respect to whether or not that man had cancer end should, 18 therefore, be Included In Table 1. That's what I'm seeking to 19 do, because that's the implication that Mr. Carr was trying to 20 r a i s e 21 THE COURT: Mr. Carr, do you have any statement to the 22 objection? 23 MR. CARR: Your Honor, the questions that he has asked 24 at this time are questions that he asked when he rehashed it. Thera Isn't anything new that he's bringing out. There is no 1 dispute about the feet that he gave- a history of lung and 2 3 bladder cancer there is not dispute about the fact that it's 4 listed in 1472 under those V numbers as that. All this matter 5 has been gone into by both sides and this would make it the second time Mr. Helneaan has gone into it. 6 7 THE COURT: Objection la sustained. Move on please* It has been covered. 8 9 Q Would you, based upon what you see in the records there put Chester Gorrell as an exposed person or leave him as 10 unaxposed? 11 MR. CARR: Your Honor, that's repetition. The quest 12 13 was asked and answered. Mr. Helneman asked it originally in 14 clarification. THE COURT: Objection is sustained. It is repetition IS 16 Q Based upon your examination by Mr. Carr Just a few 17 momenta ago with respect to Curtis Postlethwaite, do you remonb* 18 that, sir? 19 A Yes, sir. Q Would you reclassify h im as belonging in Table 17 20 A No. 21 Q And why not? 22 23 A Because the skin cancer mentioned by the doctor is 24 not -- 1 mean by the Interviewer -- is not mentioned by the 1 doctor 2 Q And what la the reason, air. that you would give ;that 3 difference in weight? 4 MR CARRi Your Honor, that's been gone Into as well. 5 I object to this repetition. 6 THE COURTi Objection la sustained. 7 Q Keith Hill, do you have the Hill record there, sir, 8 please. 9 A Yea. 10 Q Mr. Carr asked you to refer to the first three pages 11 of that record. Do you recall that, sir? 12 A Yes, sir. 13 Q And he asked you to read to the jury from the second 14 page at the top. Do you recall that? 15 A Yes. air. 16 Q The second page at the top cites what, sir? 17 A The preoperative diagnosis is what they're referring 18 to. and it says that there is a history of carcinoma of the 19 bladder, and the examination was to rule out recurrence. 20 Q So the history of carcinoma o f the bladder is stated 21 on Page 2? 22 MR. CARR: Object to the leading form of the question, 23 THE COURT: Objection sustained. Please rephrase it. 24 Q Is there a history of bladder cancer stated on Page 21 1 MR CARR: Repetition, your Honor. The witness has 2 already stated what'a stated o n Page 2. 3 THE COURTi Objection sustained. 4 Q What's the date on Page 2? 5 A March 22nd, 1976. 6 Q What's the date on Page 1? 7 A May 21st, 1971. 8 Q What is the bladder statement made in 1971 on Page 17 9 A Transitional cell papilloma of the bladder neck. 10 Q What is a transitional cell papilloma? 11 A Well, first of all, : 1 s 1 a papilloma is an outgrowth 12 where a lesion or we call it -- it can be called a tumor of 13 the bladder neck, and the transitional cell Just means that the 14 same kind of cells that are found in the bladder epithelium. IS Q All right. Is a papilloma a malignant or benign tumoi 16 A It's a benign tumor. 17 Q So in 1971 it's benign? 18 A Yes, sir. 19 MR. CARR: Object to the leading form of the question. 20 THE COURT: Objection sustained, 21 Q How, what does the physician say in the record in Dr. 22 Susklnd's examination with respect to Keith Hill? 23 A The history says negative history and the normal 24 examination. 1 Q What does the physician say about the bladder? 2 A In his -- In his summary of the history the state* 3 meat is made benign bladder neck tumor, surgical treatment, 4 non-recurrence. 5 Q How does that relate, sir, to the 1971 record? 6 A They're talking about the same thing. 7 Q And how does that relate to the 1976 record? 8 A When Dr. Dean or Dr. Stilus were planning to do this 9 cystoscopy, they said that there was a history of cancer of the 10 bladder, and I'm not sure on what they made that -- that state 11 ment of history. 12 Q But the '71 record demonstrates is it cancerous or is 13 it not? 14 A Ho, sir, It's not, it's a benign lesion. IS Q And so would you list Mr. Hill for a bladder cancer? 16 A Ho, sir, 17 Q Would you list him for a skin cancer? 18 A Yes. 19 Q Why is that? 20 A The history by the dermatologist said that he had a 21 malignant mole on his back which was removed surgically. 22 Q How with respect to Mr. Rogers, sir, do you believe as 23 you sit there now he should be Included In the list as exposed 24 or not? 1 A Ho, sir, I thought hs wasn't exposed. 2 Q Do you still foal that way? 3 A Yes. 4 Q With respect to Mr. Waldorf's records, sir -- 5 A Yes, sir. 6 Q Was that the one -- could you read that one? 7 A No, X could not. 8 Q And did you take Mr. Waldorf off? 9 A No, sir. 10 Q What did you say about him? 11 A X said I'd liko to know what that physician said when 12 he examined him and took his history. 13 Q So you put a question mark? 14 A Yes, sir. 15 Q And you said need sore information? 16 A Yes, sir. 17 Q So you didn't take him off, did you? 18 A NO, sir. 19 Q If I can direct your attention for just a moment agaiij) 20 to Keith Hill and Exhibit 1472 -- 21 A Yes, sir. 22 Q What does 1472 say with respect to V701rfor Keith Hill* 23 A Nothing 24 Q V702? 1 A Nothing. 2 Q V703? 3 A Nothing. 4 Q And indeed on tha form what did Mr. Hill tall the 5 interviewer about cancer? 6 A X can't read it. 7 Q Well do you have tha form there in front of you? 8 Hare we go. 9 A On 13 it says he had no cancer. 10 Q And V701, 2 and 3 are all negative? 11 A Yes. sir. 12 Q And the doctor diagnosed malignancy of the skin? 13 A Yes. sir. 14 Q Sir. does that reinforce your view as to what V701, 2 IS and 3 on 1472 purport to do? 16 A Yea sir. 17 Q Now sir there came a time in your examination by 18 Mr. Carr when you talked about the question of whether or not 19 the -- what Dr. Suskind sent you on September 29th of 1980 20 was the final report. Do you remember that sir? 21 A What date was that? 22 Q September 29th, 1980. 23 A Yes. sir. 24 Q And do you remember his discussing that with you, sir 1 la connection with your former testimony? 2 A Yea, sir, 3 Q Do you recall that? And he asked you, as I recall, 4 whether at Page 66 of your testimony you were telling the truth; 5 do you remember that? 6 A Yes, sir. 7 Q X think that was May 31st, if I'm not mistaken. Let 8 me show you that testimony, sir, May 31st of 1985, Page 66. Do 9 you remember Mr. Carr showing you that? 10 A Yes. 11 Q All right, sir. Mow, he asked you, do you recall -- 12 let me ask you, do you recall whether he asked you whether you 13 were telling the truth at that point, do you raeall that? 14 A No, sir. 15 Q Well, do you recall, sir, your telling him that you 16 d i d n 't know whether or not you were telling the truth at that 17 point? 18 A Yes, sir, 19 Q All right. What did you mean by chat? 20 A When X read the report was I reading the final report, 21 The definition of the final report has only to do with when Dr. 22 Suskind says that the final report, so X had read the report, 23 but I 'm not sure when X read it. We're calking about was X 24 reading it as the final draft or Just a preliminary report, so 1 the question is only t h a t i n ay opinion what X was being asked. 2 Q Now, the testimony you gave there was on the 31st of 3 May, sir,.-is that right? 4 A Yes, sir. 5 Q At that time or as you sit here now do you have a 6 specific fix on the first time you discussed w i t h Dr. Suakind 7 the question of whether the September 29th, 1930 report should 8 be considered final? 9 A That was not the final report in 1930. 10 Q My question, sir, is douyou have a fix on the first 11 time you discussed with Dr. Suskind when the September 29th, 12 1980 report should be considered the final report? 13 A Xt was about the end of May o r early in June. 14 Q Now, the facts, sir, -- let me hand, sir, what's 15 been marked as Defendant's Exhibit 917. Can you identify that 16 for me please? 17 A This is a letter or a memo from the Superintendent 18 for Health and Safety at the Krunanrich Plant, and he Is writing 19 a letter to the union committee on June 14th, 1985, and the 20 subject was Dr. Suskind's Krunanrich study. 21 Q And what does the memo say, sir? 22 MR, CARR: Your Honor, that's repetition. Counsel 23 got into that once already. 24 THE COURT: Objection sustained. Xt has been read ] already. 2 Q Would you turn to the next page, Would you Identify 3 that document for me? 4 MR. CARR; The next page has been read to the jury as 5 well, your Honor. 6 7 it Is. MR. HEINEKAN I 'm Just asking h im to Identify what 8 MR. CARRi He's already identified it Counsel. 9 THE COURTi Objection is sustained. Please get onto 10 something that*s not repetitious. 11 Q Doctor as you sit there now, sir is there any quest 1 12 In your mind as to whether or not the report that Dr. Susklnd 13 sent to you on September 29th, 1980 was a preliminary report? 14 A The 1980 report sent to me was a preliminary report. 15 Q Thank you, sir. Now, sir, ware the results of the 16 Susklnd examination given to the Krummrich workers at any time 17 by Dr. Susklnd? 18 A Each Individual man had a report of his findings. 19 MR. CARR; Vour Honor, that's all repetition, too. 20 Counsel has gone into that. 21 MR. HEXNEMANj Your Honor, there's a -- Mr. Carr 22 asked this witness as to whether or not the results o f the repox 23 were given to the workers on -- when he came back with him, 24 and I want to clarify that Indeed they were. 1 MR* CARR: I asked whether o r not this report vas 2 given to them* ? 3 THE COURT: X didn't hear the last part o vhat you 4 said, I'm sorry* 5 MR* CARR: X asked whether or not this report had evar 6 been given to the workers. 7 MR, HEXNEMAHr That's not my recollection* The result; 8 of the examination were given to the workers* 9 MR. CARR: Counsel, it's been in the record for a long 10 time that Dr, Suskind sent letters to different workers from 11 time to time based upon his Kruxsmrich plant study* That's an 12 exhibit in the record. There's no contest on that point. The 13 contest is whether or not they were ever told of this final 14 report, of this September 29th, 1980, that's the contest. 15 THE COURT: Objection is sustained. 16 Q Doctor, Exhibit 9 what does Exhibit 917 tell us 17 on that point? 18 MR. CARR: Your Honor, that's repetition. Counsel 19 has gone into that. 20 THE COURT: Objection is sustained. Xt has been gone 21 Into already. 22 MR. KEINEMAHx Your Honor, X see it's four o'clock. 23 THE COURT: Do you have any further questions? 24 MR, HEINEMAH: I beg your pardon? 1 THE COURT) Do you have any furthar questions? 2 MR. HBINBMANi Yes, air, I do. 3 THE COURT) Okay. We'll adjourn for the day at thia 4 point. Ladies and gentlemen, 1 would remind you on an over 5 night break that you're not to discuss this, you're not to 6 read, listen to, or watch anything about this case in particul 7 or the subject matter in general as well as not discussing it 8 among yourselves or with anyone else outside the jury. I'd 9 also remind you chat we're not in session tomorrow. We'll 10 start on Wednesday morning at nine o'clock. Court's adjourned 11 for the day. 12 13 14 15 16 17 18 19 20 21 22 23 24 1 STATE OF ILLINOIS 2 COUNTY OF.ST. CLAIR 3 ) ) SS ) 4 I, MARSHA SCHNIPPER, one of the Official Court Repor 5 ters In and for the Twentieth Judicial Circuit of the State of 6 Illinois, and the Official Court Reporter who reported the pro 7 ceedings had at the hearing of Frances E. Kemner, et al. vs, 8 Monsanto Company, No. 80-L-970, on the 29th of July, 1985, do 9 hereby certify that the above and foregoing is a true and 10 correct transcript of the proceedings had at eald hearing, 11 which proceedings were reported by me in shorthand and by me 12 correctly transcribed. 13 Dated this day of August,. 1985, 14 15 16 17 % 18 19 20 21 22 23 24 ] utility worker in the plant that ha did not have exposure? 2 A Cause X know what ha does. 3 i Q Doctor, we just went through that. Now either I'm 4 missing something or you're missing something. He is a utility 5 plane worker? 6 A Yes, sir. 7 Q And y ou don't know where the utility plant is, where 8 that -- 9 A Ho, sir. 10 Q Do you, sir? 11 A Ho, sir. 12 Q It could be here, here, here, here, here, it could 13 be anywhere, couldn't it, sir? 14 A Hot any place, but it's more along that main road, 15 but I'm not sure where it is. 16 Q And by the main road, you mean this road? 17 A Yes, sir. 18 Q That goes right in front of the 2,4,5 T Department? 19 A Yes, sir. 20 Q Do you know how many times a day he has to pass by 21 the 2 -- well, it's in between, Department 46 is on one side 22 of the road and the Building 41 is on the other side of the 23 main road? 24 A Yes, sir. ^ '/ 109 it 1 Q So a worker using the main road passes right In be i 2 tween, right In the midst of the area whore they're making 3 2,4,5 T? i 4 A It could be, yes, sir. 5 Q Doctor, he could well have exposure every day going 6 to and from the plant, could he not, sir, on that main road? 7 you've got it -- Building 46 here, Building 41 here. They 8 made 2,4,5 T in Building 46, they made 2,4,5 T here, and this 9 building even juts out into the main road, Building 41. 10 A Yes, sir. 11 Q So a man walking by there would have exposure every 12 day, would he not? 13 A Theoretically. 14 Q And on a practical basis as well, although it couldn'^ 15 be measured according to your calculation, isn't that right? B 4 T 0 N N E . N.J. 0 7 0 0 2 F O R M IL 2 4 B 16 A Yes, sir. 17 Q Then, Doctor, he could wall be classified as being 18 exposed, could ha not, sir? 19 A Not by my classification. 20 Q I'm sorry? 21 A Not by my approach. 22 Q Doctor, didn't we just go through that he could have 23 exposure every day? 24 A Not measurable.