Document K6o5a7nryvX1veBn5Xwz3OYQK

Richard E. Schroeder Registered Professional Reporters 400 N. Fourth - Suite 910 St. Louis, MO 63102 (314) 621-0107 Oct. 22, 1992 Mr. Cumming Paton 13300 Fairfield Circle Dr. Chesterfield, MO 63017 , IN RE: EQUITABLE RESOURCES ENERGY CO. V. MONSANTO COMPANY Dear Mr. Paton: Your deposition given on Oct. 7, 1992, has been transcribed, and is now ready to be read and signed by you. Please call and make an appointment at your earliest convenience to come downtown to this office to handle this matter. If you have not called us within thirty days, your deposition will be filed absent your signature. I am enclosing correction sheets for your convenience in case you have been furnished a copy of your testimony by counsel. Please return them to my attention at the address shown on this letter, along with a notarized signature page found at the end of the transcript. Yours very truly. cc: Gregory Monge, Esq. Richard L. Saunders 1 WATER PCB-SD0000052709 IN THE DISTRICT COURT OF THE UNITED STATES EASTERN DISTRICT OF KENTUCKY PIKEVILLE DIVISION EQUITABLE RESOURCES ENERGY COMPANY, a West Virginia Corporation, Plaintiff, VS. ... MONSANTO COMPANY, a Delaware Corporation, Defendant. No. 91-441 DEPOSITION OF CUMMING PATON, Ph. D. TAKEN ON BEHALF OF THE PLAINTIFF. October 7, 1992 RICHARD E. SCHROEDER Registered St. Professional Reporters 818 Olive Louis, MO 63101 621-0107 WATER PCB-SD0000052710 1 IN THE DISTRICT COURT OF THE UNITED STATES EASTERN DISTRICT OF MISSOURI 2 EASTERN DIVISION 3 4 EQUITABLE RESOURCES ENERGY COMPANY, a West Virginia 5 Corporation, 6 Plaintiff, 7 VS . 8 MONSANTO COMPANY, a ... Delaware Corporation, 9 Defendant. 10 ) ) ) ) ) ) ') No. 91-441 ) ) 11 DEPOSITION OF CUMMING PATON, Ph. D., produced, sworn, and examined on the part of the 12 PLAINTIFF, used in an action pending in the United States District Court within and for the Eastern 13 Division of the Eastern Judicial District of Missouri, in res EQUITABLE RESOURCES ENERGY 14 COMPANY, a West Virginia Corporation, VS. MONSANTO COMPANY, a Delaware Corporation, on October 7, 1992, 15 at the office of Husch, Eppenberger, Donohue, Cornfeld & Jenkins, 100 North Broadway, St. Louis, 16 Missouri, before Richard L. Saunders, a Notary Public within and for the City of St. Louis., State 17 of Missouri. 18 APPEARANCES: 19 McCoy, Baker & West 309 North Broadway 20 Lexington, Kentucky 40592-1660 By: Michael D. Baker, Esq. 21 And Charles E. Beal, II, Esq. For The Plaintiff. 22 Smith, Helms, Mulliss & Moore 23 227 N. Tryon St. Charlotte, NC 28231 24 By: Roily Chambers, Esq. For The Defendant. 25 2 WATER PCB-SD0000052711 1 TESTIMONY INDEX 2 PAGE 3 Direct Examination Cross Examination 4 Redirect Examination 4 144 147 5 EXHIBIT INDEX 6 PLAINTIFF'S PAGE MOVED IN EVIDENCE 7 28 37 8 38 52 9 104 21 10 22 23 11 24 25 12 5 8 102 13 100 53 14 67 9 15 2 15 16 34 36 38 42 48 50 51 51 55 56 57 93 99 100 107 128 130 139 ' 142 14 2 142 142 142 17 18 19 20 21 22 23 24 25 WATER PCB-SD0000052712 1 CUMMING PATON, Ph. D., 2 3 of lawful age, produced, sworn, and examined on 4 behalf of the PLAINTIFF, deposes and says: 5 DIRECT EXAMINATION 6 BY MR. BAKER: 7 Q. Would you state your name, please? 8 A. Cumming Paton. .... 9 Q. Dr. Paton, my name is Michael Baker. 10 Mr. Beal and I are lawyers from Lexington, 11 Kentucky. We represent Equitable Resources, a 12 company that has a plant in Kentucky that's used 13 Pydraul AC back in the '50's, '60's and early '70's 14 and we have encountered some cleanup costs recently 15 because of that and have a lawsuit against Monsanto 16 claiming that1 Monsanto's totally or at least partly 17 to blame for the situation and should pay some 18 damages for that. 19 We are here today to try to obtain 20 some information from you concerning what you and 21 Monsanto knew and did back in the '60's and '70's 22 concerning Pydraul AC in particular and PCB's in 23 general. Our purpose is not to trick you into 24 saying anything you don't wish to say or try to 25 outsmart you in any way; solely to ask you questions 4 WATER PCB-SD0000052713 1 and try to get truthful information. 2 If at any time I ask you a question 3 that you don't completely understand, feel free to 4 ask me to rephrase it or to stop the deposition, 5 consult with your counsel. If you do answer the 6 question, we will assume that you understood what we 7 were asking and may use your answers at some time in 8 this litigation. ... 9 Have you given your deposition 10 previously in other cases? 11 A. Yes. 12 Q. Approximately how many times? 13 A. I think this is the fourth if I'm not 14 mistaken. 15 Q. Did all of the previous instances involve 16 litigation concerning PCB's? 17 A. Yes, I think they did. 18 Q. Have you testified in any previous cases 19 where fire-resistant lubricants, specifically 20 Pydraul, were involved? 21 A. Pydraul, no. 22 Q. Did you give a deposition or testify at 23 trial in the Stroh case in Milwaukee? 24 A. I don't think so. 25 Q. To the best of your ability could you 5 WATER PCB-SD0000052714 1 identify the previous instances in which you did 2 testify? 3 A. There was something -- let's see, as I 4 recall, something to do with a case in Jacksonville 5 and I think that had to do with dielectric 6 transformer fluid. 7 There was a case in San Francisco 8 dealing with a transformer and there was one a 9 couple months ago. Godl What was it about? Oh, 10 that was a turbine lubricant. 11 Q. Do you know what turbine lubricant was 12 involved in that case? 13 A. I think the name was Turbinol 153. 14 Q. Where was that case filed to the best of 15 your knowledge? 16 A. Well, we had two California lawyers. The 17 company was Transwestern, which was new to me. It 18 was a Transeastern, which I think was the name of 19 the group, but there had been some mergers and God 20 knows what, so -- but the name I think of the 21 company was Transwestern today, but I'm not familiar 22 with the machinations of how it got from the early 23 '60's to where it is today. 24 Q. That's fine. I just want to find out if 25 you testified at trial in any of these cases. 6 WATER PCB-SD0000052715 1 A. No. 2 Q. Where do you live? 3 A. Here in the suburbs of St. Louis, place 4 called Chesterfield, Missouri. 5 Q. Are you presently employed? t- 6 A. I've got my own business. 7 Q. What is that business? ' 8 A. I'm an international business consultant. 9 Q. Briefly, what is your educational 10 background? 11 A. Are you talking university education or -- 12 Q. That would be a good place to start. 13 A. Well, I've got a degree in Chemistry, B. A. 14 Degree in Chemistry, and a Ph. D. in Chemistry. 15 Q. Where and when did you obtain those 16 degrees? 17 A. B.S.C. in Chemistry from Unversity of 18 Aberdeen in Scotland back in '55, and a Ph. D. in 19 Chemistry, also from the University of Aberdeen in 20 Scotland in 1959. 21 Q. Were you employed in any full time 22 positions prior to 1959? 23 A. No. 24 Q. After you obtained your Ph. D. in Chemistry 25 in 1959, what did you do? 7 WATER PCB-SD0000052716 1 A. I went to work for Monsanto Chemicals in 2 Newport, in Wales, as a Research Chemist. I left 3 them after three and a half years and went to work 4 for The Geigy Company, G-E-I-G-Y, in Manchester, 5 England, in charge of their customer technical 6 laboratory in additives, plastics. 7 Q. How long did you stay a't Geigy? 8 A. I was with Geigy two years. 9 Q. And then what did you do? 10 A. Then that would take us to late '64 and I 11 came to the United States. I had been offered and 12 accepted a position with a company called Diamond 13 Alkali and I would have been located in Painesville, 14 Ohio. I think the company is probably now known as 15 Diamond Shamrock but it was Diamond Alkali when I 16 was there. 17 Q. How long did you stay with the Diamond 18 company? 19 A. I was there only two years because although 20 I enjoyed living in the States, career-wise it 2 1 turned out it wasn't really a very good career 22 decision, so I started to look around for another 23 position, and Monsanto back in '66 were advertising 24 for somebody in what was known as plasticizers which 25 are used in conjunction with plastics in marketing 8 WATER PCB-SD0000052717 1 and I applied for and got the job, so I moved back 2 to Monsanto in late '66. . 3 Q. Was that position in St. Louis? 4 A. Yes. 5 Q. When you worked with Monsanto in Wales were 6 you in any way involved with PCB's? 7 A. No. ' 8 Q. What did your job entail there in general 9 terms ? 10 A. I did some research in latex chemistry for 11 a product line that they did. I also did some work 12 on expandable polystyrene but it was kind of -- I 13 would say application research into improvements on 14 new product lines. It was more in the polymer 15 plastics area. 16 Q. Did the facility in Wales manufacture PCB's 17 at that time? 18 A. I honestly can't remember. 19 Q. When did you first become familiar with 20 PCB's? 21 A. I wouldn't have become familiar with PCB's 22 until probably the late 1960's. I became I think 23 probably in '68. 24 Q. Let's back up for a moment. What was the 25 name of the plant in Wales? 9 WATER PCB-SD0000052718 1 A. I worked at a place called Newport. 2 Q. Then you went to work for Geigy? 3 A. In Manchester. 4 Q. In general terms, what was your job with 5 Geigy? 6 A. They had a product line which basically was 7 called additives and plasticizers and I was in 8 charge of a laboratory which would have worked on 9 developing application data to supply to customers 10 and field sales force in terms of new products. 11 Also, in handling questions, problems regarding 12 existing products with customers, customer problems, 13 or showing them how to do things, so I was an 14 interface with the sales force to support that 15 effort. 16 Q. I know Geigy manufactured a number of 17 drugs. 18 A. Yeah. 19 Q. Were you involved in drugs at all there? 20 A. No, no. Geigy has since merged with Ciba, 21 but in those days the English part of Geigy, the 22 British participant of Geigy, was pretty much in the 23 industrial chemicals area and I did not have any 24 contact with the pharmaceutical side. 25 Q. In the industrial chemicals end were you at 10 WATER PCB-SD0000052719 1 all involved in the testing of products to determine 2 whether they were safe for their expected use or 3 whether were there were any potential health safety 4 factors? 5 A. That would be other parts of the company. 6 Q. Then in late '64 you came to the United 7 States to work with Diamond Alka'li and stayed there 8 a couple of years. What was your job there? 9 A. They had developed a new -- what they 10 called an elastomer, and God, my technical memory is 11 getting a little hazy. It was kind of a product 12 that had rubber plastic-like properties, a lot of it 13 having to do with adhesive and sealing applications, 14 and I was hired specifically to be the technical 15 service manager; in other words, work with 16 customers, back up the sales force again, to 17 technically help develop the market and then deal 18 with any formulation application questions or 19 problems that would arise. 20 Q. Were you at all involved in the testing of 21 products during that period? 22 A. I would have been involved in testing them 23 for their ability to do the job they were supposed 24 to do. 25 Q. Were you at all involved in testing them to 11 WATER PCB-SD0000052720 1 determine whether there were any potential safety or 2 health hazards with the products? 3 A. I would have interfaced with other parts of 4 the company whose responsibility that would have 5 been. 6 Q. Was Diamond Alkali involved in the 7 production of chlorinated hydrocarbons during that 8 time period? 9 A. Not that I can recall. 10 Q. Then in late 1966 you came to St. Louis to 11 work for Monsanto? 12 A. Uh-huh. 13 Q. Start with late 1966 and come forward as 14 far as you worked for Monsanto and tell us first in 15 general terms what your positions were with Monsanto 16 and what that entailed. 17 A. Okay, when I joined Monsanto in '66 I went 18 into their plasticizer group. I'm not sure it was a 19 division but it was a group of products in what 20 those days was called the organic chemicals part of 21 Monsanto. I was called a Product Specialist. In 22 other words, I worked for a Market Manager and I had 23 responsibility for a group of plasticizers; again, 24 supporting the marketing, supporting the field sales 25 force with marketing, commercial information, and 12 WATER PCB-SD0000052721 1 then also trying to answer their questions, visit 2 customers, you know, kind of be a marketing 3 technical interface. 4 After about a year and a half I was 5 promoted to be a Market Manager, which is the 6 beginning of 1968. The reason I remember is I had 7 just become engaged, so it is a 'date that sticks in 8 my memory. To be a Market Manager for what are 9 known as specialty plasticizers, and I was in that 10 position for two years, because in early 1970 I then 11 was promoted again to be an Area Marketing Manager, 12 Latin America, for all Monsanto's organic chemical 13 products. I didn't physically relocate in Latin 14 America. I lived in St. Louis but I traveled 15 extremely extensively and was gone for long periods 16 of time. That lasted until late sometime -- I'm 17 guessing now, third quarter, early fourth quarter of 18 1971, when I was then made a Product Manager in a 19 group of fluids products, reporting to a man called 20 Tom Gossage, who was a director of marketing. And 21 my responsibility was to be Product Manager of heat 22 transfer fluids, dielectric fluid and something as I 23 recall we called process fluids. And, as I say, I 24 think that was the latter part of 1971. 25 Then within a year or might have been 13 WATER PCB-SD0000052722 1 two years, but somewhere in the '72-'73 time frame, 2 and, again, I'm shaky on dates now, I was given 3 broader responsibility in fluids. I think I was 4 made Product Manager of all fluids, so that meant ^B 5 that I took on responsibility for aviation hydraulic 6 fluids and the products that you're talking about 7 today like Pydraul, Turbinol hydraulic fluids. 8 Q. How long did you stay in that position? 9 A. I'm guessing, I was in that until -- maybe 10 sometime in '76, and I'm not trying to be -- it's 11 tough to remember all that far back. 12 Q. I'll tell you that the specific dates won't 13 make much difference when we start looking at 14 letters and things and you can probably recall 15 whether you were in - 16 A. So somewhere with reorganizations maybe I 17 added some other products in that span of time. I 18 rather think I did. 19 And then I made a move probably in 'll 20 or so back into the plasticizer area as manager or 21 Director of Commercial Development for the 22 Plasticizer Division. 23 Then in 1979 I became involved in 24 international business and I essentially was in that 25 the rest of my career with Monsanto. I moved to 14 WATER PCB-SD0000052723 1 Brazil in '79 as the Commercial Director. By then 2 it was called the Monsanto Industrial Chemicals 3 Company I think, so for all of Monsanto's industrial 4 chemical business in Brazil I was the Commercial 5 Director, and I lived in Brazil for about six 6 years. 7 Halfway through I was given 8 responsibility of planning and for coming up with a 9 new investment program in Brazil. I came back from 10 Brazil in late '84, became the director of 11 International Development -- International 12 Administration -- no, yeah, International 13 Administration Development for Monsanto Company 14 world wide, reporting to the head of Monsanto 15 International. 16 I then was in that position for two to 17 three years. Sometime in late '86, early '87, I was 18 in kind of -- we decided to try to get involved in a 19 joint venture in Korea and essentially I was number 20 two on the team, but essentially I was the main 21 negotiator, the main person that coordinated that 22 whole project. 23 And then somewhere in the third 24 quarter of 1987 when we negotiated a deal I went to 25 Korea as the director representing Monsanto in the 15 WATER PCB-SD0000052724 1 joint venture, so I co-managed that joint venture 2 until the end -- until December of 1990. I was . 3 living in Korea for the almost three and a half 4 years of that period. 5 Came back here, became Director of 6 Business Development for our Asia Pacific operations 7 and became involved in negotiating a three-way joint 8 venture in Thailand. 9 Then in October of 1991 Monsanto had a 10 restructuring. They were offering, you know, very 11 generous early retirement incentives. I decided to 12 take it because I was, in two years, going to retire 13 anyhow, and the financial thing, so then I formed my 14 own company, consulting. I've got several clients, 15 of whom Monsanto was one because they wanted me to 16 consult until they finished the work on the Thai 17 joint venture, which was accomplished just about a 18 couple months ago. 19 Q. Without going into any great detail or tell 20 us any secrets, what are some of the companies you 21 consult with now besides Monsanto? 22 A. I consult with Hercules at Wilmington, 23 Delaware, and I consult with a small chemical 24 company in Brazil. Monsanto pretty well -- we 25 finished up that as of early September because the 16 WATER PCB-SD0000052725 1 venture has been approved, management in place and 2 they were going ahead implementing it. 3 Q. In your consulting work with Monsanto, was 4 that done with a retainer, an hourly rate, a daily 5 rate or some combination? 6 A. It was a daily rate, hourly/daily rate. 7 Q. Does Monsanto also have an arrangement with 8 you to pay you and reimburse expenses when you give 9 depositions or testify in these cases? 10 A. No. 11 Q. Do you have an arrangement with any law 12 firm concerning that? 13 A. No. 14 Q. During your work with Monsanto from 1966, 15 let's say up to 1979 when you went to Brazil, let's 16 focus on that time period. I don't know of any 17 reason right now that we're interested in anything 18 you did after 1979, so I will ask you questions now 19 about the period '66 to '79. If this causes us to 20 develop an interest in what happened after that, we 21 will ask you. 22 A. Okay. 23 Q. Were you involved during any of that time 24 period in developing products or testing products 25 for Monsanto? 17 WATER PCB-SD0000052726 1 A. I was not involved in testing products. 2 When you say "developing," I would have been 3 involved occasionally from the standpoint of 4 commercial guidance, deciding was that something we 5 would want to do, take it commercial? If so, how 6 would we go about it, how should they be priced, et 7 cetera, et cetera. ' 8 Q. We have had previous testimony from 9 Mr. Papageorge that in 1970 Monsanto replaced the 10 product Pydraul AC with a product called 11 Pydraul AC A which contain PCT's but no PCB's 12 according to Mr. Papageorge. 13 Were you involved in the decision to 14 develop that product? 15 A. No. 16 Q. Were you in any way involved in the 17 development of that product? 18 A. No. 19 Q. We have also had testimony that I believe 20 sometime in late 1971 Monsanto replaced Pydraul AC A 21 and some other products with a product called 22 Pydraul 90-E which contained phosphate esters and 23 according to Mr. Papageorge did not contain PCT's or 24 PCB's. 25 Were you in any way involved in the 18 WATER PCB-SD0000052727 1 development of Pydraul 90 E? 2 A. No . 3 Q. Were you in any way involved in any of the 4 decisions that led to development of Pydraul 90 E? 5 A. No. 6 Q. You testified earlier that sometime in 1968 7 I believe it was, you first became familiar with or 8 first came into contact with PCB's. Tell us how 9 that occurred. 10 A. Well, as I said, plasticizers in general, 11 these are products that are used to modify plastics 12 in some way, and so in the plasticizer group we had 13 a group of products called Aroclor, which were 14 either polychlorinated biphenyls or polychlorinated 15 terphenyl, and then there might have been some 16 miscellaneous usage which would have been very very 17 minute where they didn't really fit into anywhere so 18 they came into my department by default, and 19 everything else. But that was it. So that's how I 20 became familiar with the products. 21 Q. Was there a period of time when your duties 22 involved marketing of Pydraul? 23 A. Marketing of Pydrauls maybe I guess, as I 24 said earlier, sometime in '72 or maybe '73 I would 25 have became Product Manager of all fluids, which 19 WATER PCB-SD0000052728 1 included Pydraul. Reporting to me then would have 2 been a person whose name was Jerry Davidson, so he 3 would have been the Market Manager for Pydraul and 4 he reported to me and I would have, obviously, 5 supervised his activities. 6 Q. During the period from the late '60's up 7 through about '72 or '73 would you have known what 8 salesmen were responsible for companies in Kentucky 9 that purchased Pydraul products? 1 A. No. Q. Do you know if Monsanto had sales 12 representatives responsible for particular 13 territories at that time? 14 A. As I recall, we were on a territory-based 15 mode. In some cases I think we also had maybe more 16 of a specialty nature, and as I recall, in the 17 dielectrics area, for example, our sales force was a 18 very small one, maybe two people, and they kind of 19 just covered the country with the Market Manager who 20 would then be responsible, who, in turn, would have 21 reported in to me. When you get into some other 22 areas with many customers such as Pydraul heat 23 transfer, my recollection is they were 24 territory-based. 25 Q. Who could you identify who is now living to 20 WATER PCB-SD0000052729 1 your knowledge who could tell us what persons were 2 responsible for marketing Pydraul in Kentucky 3 between 1965 and 1975? 4 A. Jerry Davidson would be one suggestion. 5 There was a man called Norman Johnson. I can't 6 remember whether it was Johnson or Johnston now. 7 But Norman Johnson or Johnston. ' As I recollect, he 8 was sort of the sales manager for most of our fluid 9 business. He certainly was when I became involved 10 in the Fluids Group in -- when did I say? Late 11 '71. He left the company but I think it was when I 12 -- I can't remember when he left the company. 13 Q. Can you think of any other persons who are 14 living today who could provide us with that 15 information? 16 A. Well, I'm trying to think -- we had four - 17 when I joined the Fluids Group in late '71 I think 18 there were about four regional sales managers. 19 There would have been Phil Slayton out of New York. 20 There was a Ray Ford, who at that time was based in 21 Atlanta. There was a Garcia I think, Rollie Garcia, 22 somewhere in the Midwest. And there was Doug Hanson 23 who I think had the West Coast, and I recollect 24 these as being the four I dealt with in the late '71 25 onwards for maybe the next year or so. 21 WATER PCB-SD0000052730 1 Q. Prior to your joining the Specialty Fluids . 2 Group in 1971, who was the head of that group? 3 A. You mean the group that I inherited? 4 Q. Yes. "te. 5 A. Well, there was a man I think by the name 6 of Fallon. I think he had the responsibility for 7 heat transfer fluids. Paul Benignus was Market 8 Manager, dielectrics. Paul reported to me, and Jack 9 Fallon I think resigned from Monsanto and so I 10 didn't fill the position I don't think directly as I 11 recall. 12 Q. Do you know if Jack Fallon is living today? 13 A. I don't. 14 Q. And I know you've answered this question in 15 general terms, but in 1966 and '67 did you have any 16 involvement at all in PCB's for Monsanto? 17 A. '66 and '67? 18 Q. Yes, sir. 19 A. Best of my recollection, no. 20 Q. That takes care of that page then. 21 A. Good. 2 2 Q. Are you familiar with any effort by 23 Monsanto between 1966 and beginning of 1970 to warn 24 customers of PCB's, that there might be some 25 environmental risks? 22 WATER PCB-SD0000052731 1 A I was aware I think some of that was done 2 -- you said through 1970. 3 Q. I'm separating this in time frames first, 4 from 1966 through the end of 1969, and then we'll 5 start with late '69 and 1970. 6 MR. CHAMBERS: Let me just object to the 7 form for the sake of some clarification. Are you 8 interested in terms of Dr. Paton's involvement 9 personally during that time frame as opposed to 10 something he may have heard about or learned about 11 at a later date or do you want it to be broad enough 12 to include that? 13 MR. BAKER: I believe the way I asked the 14 question was: Are you aware of any? And we can use 15 hearsay for our purposes here. 16 MR. CHAMBERS: Fine. In fact, I'll 17 withdraw the objection. I just want to make sure 18 that we all understand where you're coming from. 19 A. I cannot recall being aware -- you said - 20 maybe do that for me, please, rephrase the question, 21 please, or just repeat the question rather. 22 Q. (By Mr. Baker) Certainly. Are you aware 23 of any efforts at Monsanto between 1966, and let me 24 say this time 1969, from the period 1966 to 1969, to 25 warn their customers of any potential environmental 23 WATER PCB-SD0000052732 1 hazards or risks with PCB's? 2 A. I became aware of some efforts on that in 3 1968 when I got into the specialty plasticizer job. 4 I became aware of it because -- or became aware of 5 PCB's in the environment because of the publication 6 of some papers which were brought to my attention. 7 And then I remember interfacing with people like 8 Emmet Kelly, trying to understand what the 9 significance of this meant. 10 As I recall, it started off fairly 11 broadly that somebody, some scientist somewhere, had 12 found evidence of -- I believe there were 13 chlorinated hydrocarbons and then there was maybe 14 some-- again, I'm trying to test my memory, but 15 then maybe there was -- I'm trying to think of the 16 word that -- came up with chlorinated hydrocarbons, 17 then what might they be. There was speculation they 18 were maybe chlorinated pesticide things or they 19 might be chlorinated biphenyls and somewhere along 20 the line, and probably was because there was a 21 reference to chlorinated biphenyls, but since I was 22 a Market Manager for them, what's all this about. 23 So I would have gone to Emmet Kelly I think would 24 have been the most likely person and said, Emmet, 25 what does this mean? What's the significance of 24 WATER PCB-SD0000052733 1 this? Is there something that I should know about, 2 et cetera. 3 Then I think more papers, more 4 comments were made maybe on the same thing and there 5 was an attempt being made within Monsanto to 6 understand the significance of this, what was being 7 found, because it wasn't really clear what was being 8 found or why. I think Sweden was one of the places, 9 and that was a bit puzzling because our business in 10 Sweden I don't think was very big. I don't know if 11 we had sales then, so it was a bit puzzling, so I 12 was searching for information. I think people in 13 Monsanto then thought, well, what does all this 14 mean? And so we're making attempts to try to find 15 out. 16 So our research community would have 17 been involved in trying to find out what all this 18 meant and I was sort of involved because I had the 19 business, commercial responsibility for the products 20 and until I knew what the significance was, it was 21 very difficult for me to know should I do nothing 22 and what should I do? And we were trying to get 23 some facts. 24 Q. Were you in any way familiar with this 25 potential PCB problem before 1968? 25 WATER PCB-SD0000052734 1 A. Not that I can recall. 2 Q. So your first familiarity began sometime . 3 after you became Market Manager for specialty? 4 A. Yes. Somehow or other some article was 5 either brought to my attention or crossed my desk 6 for some reason and I set about trying to go to the 7 right people within Monsanto who had the ability to 8 understand it and be able to tell me what it all 9 meant. 10 Q. To the best of your recollection did that 11 happen soon after you became Market Manager in 1968 12 or was it several months later? 13 A. That's hard for me to say because since I 14 was only really Market Manager for two and a bit 15 years we didn't have many months to work on, but it 16 was within a month or two months. At this point I 17 can't remember. 18 Q. You said you talked to Dr. Kelly about 19 this ? 20 A. Uh-huh. 21 Q. Do you recall roughly when you talked to 22 Dr. Kelly? 23 A. My recollection is that I probably got 24 ahold of him probably within, you know, a week or so 25 of reading it. You know, well, I read it, I don't 26 WATER PCB-SD0000052735 1 understand it Picked up the 'phone and -- 2. MR. CHAMBERS: Let me object. Did you 3 testify that you got in touch with Dr. Kelly or 4 Mr. Wheeler? 5 A. I think -- well - 6 MR. CHAMBERS: Or both maybe? 7 A. No, that's maybe a moot point. I seem to 8 recollect Emmet Kelly, but it could have equally 9 been -- because Elmer Wheeler was in that 10 department, but it would have been that department 11 and I might have well have started with Emmet Kelly. 12 Q. (By Mr. Baker) Do you recall any of your 13 discussions with Dr. Kelly? 14 A. No, I can't recall the specifics of them. 15 Q. Do you recall in general what Dr. Kelly 16 told you? 17 A. I cannot -- my impression is that initially 18 that he was trying to maybe -- I cannot recall if he 19 was already aware of some of these papers, or I'm 20 not sure if I brought them to his attention or not, 21 but initially it would have been him trying to find 22 out what it all meant. 23 And I also remember seeing some 24 correspondence or being in touch with some of our 25 marketing people in Europe trying to -- since Sweden 27 WATER PCB-SD0000052736 1 as I remember was the -- that's the area where I 2 remember the first stuff coming from, so we were in 3 an information-gathering mode at that point in time. 4 Q. And you are certain that you became Market 5 Manager in early 1968 because that was when you 6 became engaged and you remember that time frame 7 vividly; is that correct? 8 A. That's right. 9 Q. And at that time to your recollection 10 Dr. Kelly was seeking information from people in 11 Sweden and others concerning the situation? 12 A. Yeah, I think the research area, the 13 industrial health, you know, because our Medical 14 Department had all the responsibilities for safety, 15 that sort of thing. Were all then trying to figure 16 out what the significance of this was, what the 17 accuracy was of it, et cetera, et cetera, et 18 cetera. There were questions about how accurate 19 could the methodology be for detecting these various 20 levels, because prior to that time detecting levels 21 that low -- I think we're talking parts per million 22 if I'm not mistaken -- was relatively new. 23 Q. Other than the effort to obtain information 24 from people in Sweden and perhaps from other 25 persons, do you know whether during this time period 28 WATER PCB-SD0000052737 1 1968, 1969, Monsanto took any other steps to 2 determine whether there were PCB's in birds or 3 fish? 4 Did they do any testing or did they 5 simply ask for information from Dr. Jensen in Sweden 6 and from others? 7 A. I seem to recall that we commissioned a lot 8 of tests and did tests but I'm really not the right 9 person to answer these questions. People more 10 knowledgeable than I, if they can still remember, 11 would be the people to ask that. 12 Q. I understand. I'm just trying to determine 13 what you knew from that time period. Did you talk 14 to any persons besides Dr. Kelly that you can recall 15 in 1968 and 1969 concerning these reports from 16 Sweden or the potential PCB environmental problem? 17 A. Well, I would have interfaced with the 18 people responsible for the technology and work on 19 plasticizers and people like Dr. Martin Ferra, who, 20 as I recall, was the technical research director - 21 can't remember the right title now -- which included ' 22 plasticizers. A man called Joe Darby, who would 23 have been in charge of our application in customer 24 development labs in plasticizers. There's a man 25 called Bill Richard, but he was more in fluids, but 29 WATER PCB-SD0000052738 1 -- and I really didn't have any real regular 2 interface with those products because, number one, I 3 wasn't really that long with Monsanto in the U. S. 4 These were different products, but I knew the 5 people. I had my own focus of responsibility but I 6 would probably have interfaced with those, but I 7 cannot recall the specifics now. 8 Q. Just for clarification, which of the 9 plasticizer products contained PCB's? 10 MR. CHAMBERS: Let me just object for the 11 record to the relevancy, and I'd like to make that a 12 continuing objection. But, certainly, he's welcome 13 to answer whatever else you care to pursue there. 14 A. Where does that leave me? 15 . MR. CHAMBERS: That leaves his question 16 that I've objected to for you to answer. 17 A. Could you repeat it again? 18 Q. (By Mr. Baker) I will try. Which of the 19 plasticizers contained PCB's? 20 A. Well, Aroclor also was a trademark that 21 included polychlorinated terphenyls as well as 22 PCB's, and Aroclor numbers, which were four numbers, 23 four-digit, starting with 12, contained PCB's. If 24 they had a 54 I think they were terphenyls and there 25 was something else that was a blend and I can't 30 WATER PCB-SD0000052739 1 remember what that was. 2 In the plasticizer area, 1242, because 3 it was very specific to carbonless copy paper 4 application, 1254, 1260 could have been the ones I 5 think. 6 Q. Just for our information, what is a 7 plasticizer and what were some of the uses of 8 plasticizers? 9 A. Okay, plasticizers can be used to make 10 plastics sometimes more flexible. In the case of 11 Aroclor they can be used to make them 12 fire-retardant. They could be used to give them 13 solvent or capability to stand up more to solvents 14 or to wear. They were sometimes used in marine 15 coatings or special coatings where you really wanted 16 a very tough, you know, product that lasted. You 17 didn't want something that broke down. So there 18 were technical advantages why they were used. 19 In many cases dealing -- particularly 20 when you got into the Aroclor area, the person who 21 developed the plastic, or the polymers sometimes 22 called, was trying to formulate it for a specific 23 application, so he was looking for additives that 24 would improve and impart other characteristics. So 25 sometimes these companies conceivably, you know. 31 WATER PCB-SD0000052740 1 could find out -- if we supplied them, they would do 2 the testing, they would then maybe recommend to 3 their customers, well, this product from Monsanto, 4 this Aroclor 1254, so on, is the thing you should *& 5 use. So then we get a 'phone call from customer ABC 6 saying. Supply it, and in many cases we hadn't 7 participated in preparation of that formulation or 8 the testing, we were just -- because we made it, we 9 sold it. 10 Q. Do you know when roughly Monsanto first 11 began selling PCB products to either to be used in 12 plasticizers or to manufacture plasticizers with PCB 13 products ? 14 A. No, I don't. 15 Q. Do you know whether they were doing that in 16 the 1950 ' s? 17 A. I can't say that with any certainty. 18 Q. You did know they were doing it in the 19 1960 's? 20 A. I know they were doing it in the late 21 1960 's to the extent I was involved. 22 Q. Do you know how long they continued into 23 the ' 7 0 ' s ? 24 A. Well, as I recall, they phased out. It was 25 kind of a somewhat progressive phaseout and I cannot 32 WATER PCB-SD0000052741 1 recall when we finally -- dielectric fluids as I 2 recall was about the last area that we stopped, and 3 I now forget the exact date. In fact, maybe I would 4 by then have moved out of the Fluids Group, I cannot 5 recall. 6 Q. Were you involved in the'early 1970's with 7 any organized effort by Monsanto to warn customers 8 concerning possible PCB environmental questions? 9 A. I would have been involved from sometime in 10 the late '71 period onwards, and onwards might have 11 went into, guessing, into about maybe '75, and I 12 really am guessing when I say '75. 13 Q. Were you at all involved in a program to 14 warn Therminol customers of possible PCB 15 environmental risk? 16 MR. CHAMBERS: I'll interpose a relevancy 17 objection at this point as well and make that a 18 continuing objection. 19 But, Dr. Paton, you should go ahead if 20 you're able to answer his questions. 21 A. Mr. Baker, if you could be a bit more 22 specific. Because that's a very broad question, so 23 I'd like you to be specific if you could. 24 Q. (By Mr. Baker) Well, I meant it as a broad 25 question because I don't know the answer to it. 33 WATER PCB-SD0000052742 1 Were you involved in any way in an 2 effort to provide warnings to Therminol customers in 3 the 1970's? And if your answer is no, I won't try 4 to be any more specific than that. If it's yes, 5 we'll try to find out exactly how you were involved 6 in it. 7 A. I recall being involved in a mailing to 8 customers sometime in late 1971 regarding the 9 discontinuation of PCB-containing Therminol fluids. 10 Q. Were you involved in any efforts of 11 Monsanto in the 1970 's to warn Pydraul customers of 12 potential PCB environmental risk? 13 A. If I was involved it would have been after 14 I got responsibility for Pydraul, which that could 15 have been, I'm guessing, the early -- would have 16 been 1972, the very earliest. 17 Q. I want to show you a series of letters that 18 have been produced to us by Monsanto and I want to 19 ask you to review each of these and tell me whether 20 you had any involvement in the drafting of the 21 letter or in determining who would receive the 22 letter. 23 A. Okay. 24 Q. The first one has been marked as 25 Plaintiff's Exhibit 20, and I will tell you it's a 34 WATER PCB-SD0000052743 1 letter from a Mr. Olson, who apparently was Director 2 of Sales for the Functional Fluids Group at that 3 time. There were some pages attached to this that 4 were produced to us by Monsanto and I believe were 5 attached to this letter, and ask you if you could 6 review this and tell us if you had any involvement 7 at all in this letter. ' 8 A. I think I can say that I almost certainly 9 had nothing to do with this. 10 Q. Did you know Mr. Olson? 11 A. Yes. 12 Q. Can you tell us what his job at Monsanto 13 was to the best of your recollection? 14 A. My recollection is that he -- I think the 15 time I knew him in Monsanto he was in sales, and so 16 he was a colleague I would know but I don't think 17 I've ever reported to him, and he since left the 18 company -- 19 Q. Do you have any idea what he's doing now? 20 A. No, I don't. 21 Q. Now, there are a series of letters. I want 22 to show you also some internal memoranda. I believe 23 we have these in chronological order, so it may be 24 easier for you to deal with, but that would explain 25 why this is not the order of our exhibits, so I'm 35 WATER PCB-SD0000052744 1 trying to give them to you in chronological order to 2 make it easier for both of us. 3 This is marked Plaintiff's Exhibit 37 4 and it appears to be an internal memorandum from 5 Mr. Papageorge. 6 A. Okay. 7 Q. Do you recall having received this or 8 something similar to this? 9 A. I can't recall. 10 Q. At the top of this it indicates that it was 11 to be sent to a number of persons. One of those is 12 C. Paton. I assume that would refer to you, would 13 it not? 14 A. Yes. 15 Q. This refers to a rough draft of a plan for 16 managing the PCB problem. 17 Do you recall at sometime around March 18 of 1970 receiving a rough draft of such a plan? 19 A. I don't, but that's not to say it wasn't. 20 I would think also, given this date, that I was 21 about or maybe was even in transition from the 22 Market Manager job in Specialty Plasticizers to the 23 Latin America job, but probably because of the 24 previous two years I had been involved they might 25 have even copied me in and wanted me to be involved 36 WATER PCB-SD0000052745 1 because of that. I have no reason to think there 2 wasn't but I can't remember anything more about it. 3 Q. This also refers to a meeting of April 2nd 4 in Conference Room C-303 to review this draft. 5 Do you recall attending any committee 6 meetings during this time frame, early 1970 's, where 7 the PCB problem was discussed? ' 8 A. No, no. 9 Q. Do you recall attending any committee 10 meetings at any time before or after 1970, 11 discussing the PCB problem? 12 A. Well, I was at -- you know, particularly 13 after late '71 when I became involved in heat 14 transfer dielectric fluids and in other fluids, I 15 was at many meetings. I cannot recall that we had 16 any sort of a standing set committee. There was a 17 group, you know, we had a group of people that were 18 involved in different parts of the company and we 19 met and reviewed things. Whether there was really a 20 formal committee, I cannot recall that. 21 Q. During the time period first part of 1970, 22 did you report to Mr. Papageorge at all with regard 23 to the PCB situation? 24 A. No, I never reported to Mr. Papageorge 25 directly. 37 WATER PCB-SD0000052746 1 Q. Did he report to you - 2 A. No. 3 Q. -- during that time period? 4 A. No. 5 Q. I expect I know the answer to this question 6 but I'm obligated to ask it anyway. I want to show 7 you a document marked Plaintiff's Exhibit 38 which I 8 believe is a draft of the plan and I will ask you if 9 you recall having seen this before? 10 A. Okay, and your question again was? 11 Q. The first question was: Do you recall 12 having seen this document before? 13 A. I can't recall. Again, that's not to say 14 that I didn't receive it. 15 Q. Do you recall at any time receiving a 16 document similar to this? 17 A. I can't recall, but it's not to say that I 18 didn't. 19 Q. Do you recall being in any meetings where a 20 document similar to this or the information 21 contained in this document were discussed? 22 A. I cannot, but I know that I interfaced with 2 3 people on the PCB issue in that time frame because 24 it is in the date when I was responsible for one 25 part of it. 38 WATER PCB-SD0000052747 1 Q. On the first page of this document down at 2 the bottom is the statement: In November -- which I 3 believe would have been November of 1969 -- but in 4 November the decision was made to develop a plan to ' 5 phase out the manufacture of Aroclor 1254 and 1260. 6 Were you aware of that decision at 7 that time? 1 8 A. I would have had to be, given what my 9 position was at that time, and Aroclor 1254 and 1260 10 were used not in large amounts but they were used 11 in, quote, what we call plasticizer applications, so 12 though I can't remember, it would have been 13 impossible for me not to have known. 14 Q. Do you know who would have been involved in 15 the making of that decision in November 1969? 16 A. There would have probably been several 17 divisions, inorganic chemicals involved, that would 18 have been -- whoever was responsible for 19 plasticizers would have been part of it. I reported 20 directly to Mr. Walter Waycoff at the time. He was 21 a Product Manager for plasticizers. I cannot now 22 recall the hierarchy above that. 23 Then there would have been a group 24 that would have been responsible for things like 25 dielectric fluids, heat transfer fluids, hydraulic 39 WATER PCB-SD0000052748 1 fluids, to the extent that they had PCB's in them. 2 I can't recall if that was all one group back then 3 or whether it might have been a separate group, 4 so -5 Q. At this time you were Market Manager for 6 Specialty Plasticizers, and some of those 7 plasticizers contained Aroclor 1254? 8 A. Uh-huh. 9 Q. Some of them contained 1260? 10 A. I think 1260 would have been part of it but 11 probably to a much lesser extent. My recollection 12 is that 1260 is a fairly small-volume product. 13 Q. As Market Manager for these plasticizers, 14 were you instructed to inform your customers in any 15 way about the decision made in November 1969 to 16 phase out the manufacture of Aroclor 1254 or 1260? 17 A. I cannot remember right now. I cannot 18 recall doing anything on that. As I say, again, 19 sometime in the early part of 1970 I may have been 20 into another job, but my mind draws a blank 20-odd 21 years later on that. 22 Q. I believe your answer to that question 23 would cover this question, but just so we're 24 certain, the first question was: Were you 25 instructed to tell anything to your customers? 40 WATER PCB-SD0000052749 1 Let me ask you another question. I 2 believe you already answered this. Did you instruct 3 your subordinates to inform the customers in any way 4 of this decision? 5 A. I don't think so, because I don't think I 6 -- I just had one subordinate at the time, so there 7 weren't a lot of subordinates. There might have 8 been one but I can't recall instructing them to do 9 it. 10 Q. At page 1890, which is I believe the 11 seventh page of that document -- and the numbering 12 system here is from the production of documents from 13 Monsanto. 14 A. Okay. 15 Q. There is a reference to some spillage and 16 leaks at Monsanto plants. Were you in any way 17 familiar with this situation? 18 A. No. 19 Q. That takes care of that page of questions. 20 A. Okay. 21 Q. Were you involved in any way with 22 biodegradation studies? 23 A. If you mean carrying them out, the answer 24 is no. 25 Q. Were you familiar with any biodegradation 41 WATER PCB-SD0000052750 1 studies concerning PCB's? 2 A. I recollect that they were being done and I 3 might have been briefed on how they were going but I 4 did not have any direct management of that sort of 5 activity. 6 Q. Do you know who was involved in that? 7 A. I would refer questions, like I thought of 8 Emmet Kelly, Bill Richard, as being the ones more 9 likely to know about that, at least would know who 10 was involved. 11 Q. I have no further questions about this 12 exhibit. Dr. Paton, if at any time you want to take 13 a break, just speak up. 14 I'm going to show you a document 15 that's marked as Plaintiff's Exhibit 52 and ask you 16 first to review this. 17 Have you reviewed this document? 18 A. Yes. 19 Q. You testified previously about a Norman 20 Johnson. This is a memorandum from an N. T. Johnson 21 in St. Louis. Is that the same person as Norman 22 Johnson? 23 A. Yes, sir. 24 Q. I believe this document primarily went to 25 sales personnel. Your name is not listed on the 42 WATER PCB-SD0000052751 1 person to have received it. 2 A. That's right. 3 Q. Can you identify most of these persons 4 listed as sales personnel? 5 A. Well, I feel a little bit -- since my name 6 is not on there anywhere, that I'm really -- 7 Mr. Johnson I think is the person that should be 8 asked that question. ... 9 MR. CHAMBERS: I think all Mr. Baker's 10 interested in is giving you a list of names and see 11 if that helps refresh you about whether some of 12 these individuals were in sales or not, and I think 13 this is probably as fair a way to do this as any. 14 A. Okay. 15 Q. (By Mr. Baker) I will tell you, I planned 16 to ask you why you weren't listed here but I think 17 you've already given us a pretty good explanation 18 for that. 19 A. My job had nothing to do with this area at 20 that time. Craska was in sales. I knew Paul Craska 21 probably in the '72-'73 period onwards, and since 22 I've known him, he was in sales, so he well could 23 have been in sales. 24 . Clay. Again, I got to know him 25 sometime after '71, and he was in sales, left 43 WATER PCB-SD0000052752 1 Monsanto. 2 Jerry Davidson we've talked about. 3 Damiani, the name rings a bell. It 4 appears that he could well have been in sales. 5 George Fague I knew. He once worked 6 in sales. Has left Monsanto. 7 Rollie Garcia. I 'mentioned earlier I 8 remember him as Regional Sales Manager for the 9 Midwest. 10 Robin Garnsworthy was in sales 11 marketing for Australia operations. 12 And Heilala, that name doesn't ring a 13 bell any more. 14 Irwin, that doesn't ring a bell any 15 more, if it ever did. 16 J. Pullman, yes, sales. 17 Jim Roder, yes, sales. 18 Bob Giles, business man, went from our 19 Monsanto Australian operations. Might have had 20 sales responsibility. 21 Peter Marsh was marketing when I knew 22 him, so he has a marketing background. 23 Ehrhardt. Don't know him. 24 Oneson, Monsanto Canada operations. 25 John Haggart in marketing for Monsanto 44 WATER PCB-SD0000052753 1 in Brussels 2 Vaughn Morse was the person that I was 3 about to replace in Latin America. 4 John Brydon, yes, sales in Canada. 5 Randy Graham was sales in 6 dielectrics. 7 Paul Benignus, Market Manager, 8 dielectric fluids. 9 Jim Bryant, sales in dielectric 10 fluids. 11 Don Roush was like a marketing sales 12 engineer support person in heat transfer fluids. 13 Jack Fallon had been a Market Manager 14 of heat transfer fluids at least until he resigned 15 sometime in '71 but I don't know how much earlier. 16 Hall. That name rings a bell but I 17 cannot recollect now. 18 Don Pogue worked for me once I think 19 again in the '71 period onwards in marketing. 20 Dale Smith. I think Dale Smith might 21 have had something to do with hydraulic fluids but I 2 2 can't recall. 23 Olson, as I say, something in sales, 24 and you produced something that said Sales Director, 25 so that's maybe what he did there, okay? 45 WATER PCB-SD0000052754 1 Q. That's very good, thank you. You testified 2 that you replace d - 3 A. Vaughn Morse. 4 Q. Vaughn Morse in Latin America? 5 A. Yes. 6 Q. Do you recall after replacing Mr. Morse 7 ever see ng this document? ' 8 A. No. 9 Q. What was Mr. N. T. Johnson's position at 10 this time, best of your recollection? And "this 11 time" is February 1970. 12 A. I really can't tell you what it was in 13 February 1970. I remember back when I came into 14 fluids in 1971, that's probably about the first time 15 I really came face-to-face with him, and at that 16 time he was, as I recall, the sales manager -- maybe 17 he was sales director for a group of fluids 18 products. 19 Q. Were you familiar at any time in the early 20 '70's with Monsanto's policy on customers return of 21 products to Monsanto? 22 A. I was familiar with it as it related to 23 heat transfer fluids starting late '71. 24 Q. What was the Monsanto policy with regard to 25 returning of heat transfer fluids containing PCB's 46 WATER PCB-SD0000052755 1 in late 1971? 2 A. We made an offer for a certain -- when we 3 decided to discontinue sales of PCB-containing heat 4 transfer fluids, which I think was made within maybe . **6. 5 a few months of me coming into that position, we 6 made available for a certain period of time, if I'm 7 not mistaken, incineration services, and I think for 8 a period of time they were free. The idea being to 9 try to get people to do the conversion quickly. 10 Incineration services were provided after that 11 initial period I think at a certain cost I believe 12 in other products, and when I got involved later in 13 hydraulic fluids we made these services available 14 but I think they were always charged for. 15 The reasons for that was that in heat 16 transfer fluids in the U. S. we could be pretty 17 certain we knew what they were. We were the only 18 producer in the U. S. There were producers in other 19 parts of the world but I think the imports were 20 limited, and since we had a record of who we were 21 selling to, we pretty well knew what we were taking 22 back, because one of the technical difficulties in 23 incineration is you want to know what it is you're 24 burning. 25 When you get into hydraulic fluid you 47 WATER PCB-SD0000052756 1 have another problem because they were not a hundred 2 percent PCB's and we were not the only producer of 3 hydraulic fluids. Some people might buy from one 4 competitor one type of fluid and buy ours and they 5 might all go in the same machine so, therefore, we 6 had a problem of just bottling everybody's fluids 7 and we certainly couldn't afford to do it for free, 8 so we felt there was a reason why the policies 9 weren't exactly the same. 10 Q. Let me show you a document marked 11 Plaintiff's Exhibit 104 and ask you to please review 12 this . 13 A. Yes. 14 Q. Did you prepare this memorandum? 15 A. No reason to believe I didn't. 16 Q. Could you tell us what this page 17 represents? 18 A. It would be me going to the salesman in 19 whose territory this customer was located and 20 relaying to him this conversation that I must have 21 had back in '71 with Mr. Heath. 22 Q. So this is a memorandum of a telephone 23 conversation apparently from a customer? 24 A. That's right. 25 Q. To you? 48 WATER PCB-SD0000052757 1 A. Uh-huh. 2 Q. And then you prepared this memorandum to 3 pass the information on to someone else. To whom 4 did you send this information? 5 A. Well, it looks as though I sent it to \ man 6 named Mr. Capps, III, who as I recall was a 7 salesman. > 8 Q. And this was in October of 1971, and by 9 that time you were back? 10 A. The Product Manager for heat transfer and 11 dielectric fluids. Forget the exact title, but 12 that's basically what I was. That's why the 'phone 13 call would have been relayed to me. 14 Q. Was it your policy to prepare memoranda of 15 'phone calls that you received concerning PCB's? 16 A. Pretty much, yes. 17 Q. Do you recall ever having any communication 18 with Kentucky Hydrocarbon or any company names that 19 began with Equitable concerning PCB's? 20 A. No. 21 Q. Do you recall having any conversations with 22 anyone from any of those companies concerning 23 anything? 24 A. No. 25 Q. If you had had a conversation with someone 49 WATER PCB-SD0000052758 1 from Kentucky Hydrocarbon or Equitable concerning 2 PCB's, would you ever, as a part of your job, have 3 prepared a memoranda of that conversation? 4 MR. CHAMBERS: Let me object to that since 5 he's already said he didn't have any that he 6 remembers. 7 You can go ahead and answer, if you're 8 able. 9 A. I think as a general policy, any time that 10 I got someone on the 'phone I would have taken note H somewhere and would have written it up and probably 12 I almost certainly would have let the sales person 13 know about it. 14 Q. (By Mr. Baker) Do you know if Monsanto had 15 a policy to retain all these memoranda? 16 A. I don't know. 17 Q. Do you know if Monsanto had a company-wide 18 policy asking its employees to make memoranda of 19 'phone calls concerning PCB's? 20 A. I can't recall. That's not to say there 21 wasn't one. I just cannot remember. 22 Q. I told you we'd do this in chronological 23 order and we attempted to but we jumped around just 24 a little bit. Going to show you a document marked 25 Plaintiff's Exhibit 21. This appears to be a form 50 WATER PCB-SD0000052759 1 letter designed to be sent to some customers and 2 signed by Mr. Johnson, dated June 11, 1970. 3 Considering some of your past answers I think I know 4 the answer to this but I will ask anyway. ^ 5 Were you at all involved m the 6 preparation of this letter? 7 A. No. 1 8 Q. Do you recall having seen this before? 9 A. No. 10 Q. Let me show you a document marked 11 Plaintiff's Exhibit 22. It's an April 15, 1971, 12 letter signed by Mr. Bradford, Product Manager of 13 Pydraul hydraulics and lubricants, and I will ask 14 you if you were involved in the preparation of this 15 letter. 16 A. No. 17 Q. Do you recall having seen it before? 18 A. No. 19 Q. I'll show you a document marked Plaintiff's 20 Exhibit 23, dated January 31, 1972, from 21 Mr. Bergen. 22 I'll ask you if you were involved in 23 the drafting of this letter. 24 A. No, I can't recall that I was. 25 Q. You recall having received this letter or 51 WATER PCB-SD0000052760 1 having seen it? 2 A. No, I can't recall. 3 Q. Let me ask you a few questions about the 4 situation at Monsanto at this time, January 1972. 5 You were Product Manager for a group of fluid s ^ at 6 that time, were you not? 7 A. Yes. ` 8 Q. Were you in any way involved during that 9 time period with an effort to inform customers 10 concerning reformulation of products or 11 discontinuation of PCB products? 12 A. Around this date sometime towards the end 13 of 1971 I was heavily involved with a program to 14 discontinue the sales of PCB-containing Therminols 15 and to have a program in which we tried to assist 16 customers to convert over to other products which, 17 unfortunately, were not going to be fire-resistant. 18 And so at that point in time I don't think I had any 19 direct involvement in what was going on in the area 20 of Pydraul. I would have been devoting my 21 attentions to heat transfer fluids, Therminol, 22 dielectrics and process fluids, which was primarily 23 carbonless carbon paper. But I think we had already 24 discontinued it, so I'm not sure to what extent that 25 was really -- you know, how much I was involved in 52 WATER PCB-SD0000052761 1 that, I just cannot remember any more, But that's 2 basically what I was doing. 3 Q. Did you and/or your staff attempt to 4 contact all customers of those products? 5 A. What products? ^5- 6 Q. The products that you were involved in. 7 A. We did the very best we could, yes. 8 Q. Did you start with bigger ones and work 9 your way down or how did you determine which 10 customers to contact? 11 A. We tried to cover all customers. 12 Q. Did you inform your customers that the 13 products you were discontinuing had contained PCB's 14 and/or PCT's? 15 A. In the case of heat transfer fluids, the 16 PCT's didn't arise because they were solids, so they 17 were not -- so the Therminol products, best of my 18 recollection, never had anything to do with PCT's. 19 They were only PCB's. 20 Q. Did you inform your customers that those 21 products had contained PCB's and that you were no 22 longer manufacturing them? 23 A. Yes, I think that was contained in the late 24 '71 letter. However, I think that there had been 25 previous letters if I'm not mistaken. 53 WATER PCB-SD0000052762 1 Q. In the letters that you sent to your 2 customers did you retain any records, copies of . 3 addresses, of address labels or copies of actual 4 letters that had the customer's name and address on .^ 5 them? Did you retain any documentation showing to 6 whom those letters had been sent? 7 A. My recollection is that we did. What has 8 happened to those, I have no idea. 9 Q. Do you know what it was you retained? 10 A. I cannot recall exactly right now but my 11 recollection would be that it would be either or 12 both of what you just stated. 13 Q. Do you know if you sent any of those 14 letters by certified mail or any other means where 15 there would be evidence that they had been sent and 16 received? 17 A. That's a good question, and I cannot 18 remember. 19 Q. What was the Monsanto policy for retention 20 of documents in the early 1970's? 21 A. I cannot remember what the policy was. My 22 secretary was maintaining for me a reading file and 23 I would have complied with whatever the program at 24 the time was. 25 Q. I'm just trying to determine if there was a 54 WATER PCB-SD0000052763 1 policy, and if so, what it was. 2 A. I cannot remember. I think there was but I 3 cannot say for sure. 4 Q. Do you know anything about Monsanto's 5 policy in the 1970 's on destruction of documents? 6 A. No. If there was one -- everything would 7 have been a document retention program. I cannot 8 recall a separate document destruction program. 9 Nobody ever came to me and say. Gee, Cumming, you 10 better destroy all your files. 11 Q. But you didn't keep everything, did you? 12 A. God, no, I can't remember. 13 Q. Do you know who could tell us what 14 Monsanto's company policy was in the 1970 's on 15 retention or destruction of documents? 16 A. Gee, I don't know. I'd start with the 17 Legal Department I would guess would be my starting 18 point. 19 (A brief recess was taken.) 20 Q. (By Mr. Baker) Show you a document marked 21 Plaintiff's Exhibit 24. It's another letter from 22 Mr. Bergen dated March 15, 1972. 23 I'll ask you if you had any 24 involvement in the preparation of this document. 25 A. If I had got into taking on some Pydraul 55 WATER PCB-SD0000052764 1 responsibilities by then the answer would have been 2 yes, but I cannot recall now. But I was Project 3 Manager for all fluids, yes. Probably Jerry 4 Davidson might have been the one that would have 5 started this off and then I might have reviewed it 6 and it would have marched on up the line. 7 Q. Do you have any present recollection of 8 having seen this letter or having participated in 9 the drafting of it? 10 A. No, no. 11 Q. I will show you a document marked 12 Plaintiff's Exhibit 25. It's dated April 1972. 13 It's signed by Mr. Papageorge, and ask you to review 14 this and tell us whether you have any recollection 15 of this letter. 16 A. I wouldn't have recalled this situation. 17 I guess this letter is refreshing my memory that 18 yes, I seem to recall there was Bill Papageorge 19 bringing to our attention this kind of a problem 20 that he was facing. 21 Q. Were you involved at all in the drafting of 22 this letter? 23 A. I can't recall specifically, but the odds 24 are I would have probably been involved. 25 Q. Were you involved in deciding to whom to 56 WATER PCB-SD0000052765 1 send this letter? 2 A. I cannot recall, that. 3 Q. Do you know what companies or groups of 4 companies were sent this letter? 5 A. If I did, I've forgotten. 6 Q. I will show you a document marked 7 Plaintiff's Exhibit 58 and ask you first to review 8 this . 9 A. Yes. 10 Q. Not quite sure where to start. Let me ask 11 you first, do you recall having received this 12 document sometime in February or so of 1972? 13 A. No, but I have no reason to say I didn't. 14 Q. Do you recall having seen this at any time 15 prior to today? 16 A. No. 17 Q. This is a memorandum from Mr. Papageorge to 18 a number of persons, or appears to be. It shows at 19 the top the right-hand corner on the first page, 20 C. Paton. I assume that was you. 21 A. Yes. 22 Q. What does B2SC after your name mean? 23 A. That's Building B, second floor, and it's a 24 mail code and location in a particular building. 25 Q. If you will turn to the second page, it 57 WATER PCB-SD0000052766 1 refers to it's titled "Action Plan 2 A. Yes. 3 Q. And has several columns there. The first 4 one is "Action." The second one is "Assigned To" 5 and it has "Target Date," "Actual Date" and ^ 6 "Remarks." 7 The first listing under "Action" is 8 "Notify key customer" and it has assigned to it WRC 9 and HSB and I believe TLG. Can you identify those 10 persons ? 11 A. Yes, WRC would be Wink, W-I-N-K, but that's 12 obviously a nickname. Corey, C-O-R-E-Y, who was a 13 General Manager, Vice President, for Monsanto at 14 that time. 15 HSB is Howard Bergen, who, 16 unfortunately, is now dead. And TLG is 17 T. L. Gossage. 18 Q. Do you have any knowledge as to what's 19 "Notify key customer"? I suspect it's customers 20 but it says "Notify key customer," as to what that 21 action meant? 22 A. Well, all the customers, talking 23 specifically about the Therminol products, all the 24 customers would have got the same letter. However, 25 there was many many of the customers, the only thing 58 WATER PCB-SD0000052767 1 they bought from us was heat transfer fluid. But 2 there were others who were major customers of . 3 Monsanto in other areas and in a discontinuation 4 like this you are obviously going to inconvenience 5 many many people. The repercussions on Monsanto 6 from companies who bought a wide range of products 7 could have been much greater. We anticipated that 8 we might have other divisions, say fibers or what 9 have you, calling up saying, you know, you have 10 upset one of our biggest accounts. What the hell 11 are you people up to? And that would have created a 12 great deal of turmoil in my organization. 13 We were a team of people trying to get 14 a job done. We were trying to forestall having all 15 the other salesmen on Monsanto calling up and 16 saying. You dumb so and so, what have you done? So 17 we decided one way to tackle it so that we could 18 explain clearly what it was all about was to go into 19 these customers that bought a lot of other products 20 from us besides Therminol and explain what we were 21 about, and we assigned that to the top level of the 22 people. And it wasn't a huge number of customers 23 but it was some. 24 MR. CHAMBERS: Although he's already 25 answered, just to keep our objections preserved I 59 WATER PCB-SD0000052768 1 want to enter an objection to questions about the 2 handling of the heat transfer fluids on the grounds 3 that that's not relevant, but, certainly, to the 4 extent you can answer Mr. Baker's questions, I would 5 urge you to do that, Dr. Paton. 6 A. But there was no attempt here to insinuate 7 there was a kind of a first class customers and 8 second class customers, no, that was not -- it was a 9 practical matter to deal with what we knew. It was 10 a situation that was going to generate probably a 11 great deal of response and how could we get that job 12 done and minimize other factors. 13 Q. (By Mr. Baker) Item No. 2 says "Mail 14 customer notification" and says that was assigned to 15 CP. I assume the CP was you? 16 A. Yes. 17 Q. Did you carry out that action? 18 A. Yes, and over there would have been the 19 date when it was done in the circle. 20 Q. How did you determine what customers you 21 were going to mail this notification to? 22 A. I cannot now recall the specifics we went 23 through but we would have -- I would have had staff 24 people in heat transfer fluids. I think we had 25 pooled together a team of people. There was one 60 WATER PCB-SD0000052769 1 person was like an administrative coordinator for 2 the program and there were people in the technical 3 end were going to assist and we worked with a 4 combination of sales records, computer runs, 5 salesmen, and we developed to the very best extent 6 we could what we thought was a complete listing of 7 our customers. I cannot now recall what period of 8 time that covered but I recall we did the very best 9 we could to be sure we covered everybody. 10 Q. And you don't know whether you went back 11 one year, three years, ten years? 12 A. At this length of time away from the . 13 situation, I cannot recall. 14 Q. If we wanted to find someone who knew which 15 customers were selected to receive this notification 16 or how you determined what customers to mail this 17 to, who could we talk to? 18 A. I don't know if Bill Papageorge's 19 recollection is any better than mine. That might be 20 one particular source since, obviously, we 21 interfaced closely with Bill. 22 Another person that was brought into 23 report to me at that time was a Paul Gann, G-A-N-N, 24 and Paul -- certainly, I don't know how much he 25 would have been -- I can't recall how much he would 61 WATER PCB-SD0000052770 1 have been involved in putting the mailing list 2 together. Certainly,.he would have been the keeper 3 as far as the department was concerned of who got it 4 and what happened afterwards. 5 Q. Item No. 5 says "Organize conversion 6 team." Also says that's assigned to you. 7 A. Yes. 1 8 Q. What did that mean and what did you do? 9 A. Well, essentially what we were telling the 10 heat transfer customers is as of a few days hence 11 you will get no more fire-resistant heat transfer 12 fluid and if you want to keep your operations 13 running and deal with Monsanto and to the best of 14 our knowledge other U. S.-based suppliers of these 15 fluids, they were going to be non-fire-resistant, so 16 we were very concerned that possibly customers in 17 switching over might get fires which could be 18 catastrophic in terms of the life of operators, et 19 cetera, et cetera, so how could we go about trying 20 to help these customers deal with it? And so the 21 idea we had was, well, maybe we would bring in our 22 engineers out of our Engineering Department and get 23 a team of them assembled and have them available to 24 go through what seals should be used, pumps, 25 tightening up, you know, all of that technical 62 WATER PCB-SD0000052771 1 stuff. And when the letter -- as I recall, the 2 letter probably mentioned that, and so there was a 3 group of six or eight, I can't recall the exact 4 number, who worked for a period of time on call or 5 went to visit and did whatever they could. 6 Q. So you did organize such a team? 7 A. I organized such a team, yes. 8 Q. Did you send them out to assist customers 9 in the changeover? 10 A. I can't recall if they actually visited or 11 if it was -- I think they may have visited, and 12 certainly they sent letters and they were available 13 on telephone. 14 Now we also had in our case a man 15 called Don Roush, who was the normal marketing 16 technical service type person, but we could see that 17 he was just going to be absolutely, you know, 18 inundated with questions so, again, part of this 19 conversion team looked to Don to kind of translate 20 their engineering knowledge over to his knowledge 21 about the product and heat transfer in general, so 22 it was a marriage. But we were then able to take 23 Don's skill and get it over to about seven people 24 who could then interface with the customer. 25 Q. This conversion from PCB heat transfer 63 WATER PCB-SD0000052772 1 fluids to non-PCB heat transfer fluids, this didn't 2 involve just topping off the fluid, this was total 3 replacement, was it not? 4 A. Total replacement. Now, I guess the 5 customer always had the option that if he chose to, 6 you know, go about it by a top-off and drain, 7 eventually, over a period of time, he would go from 8 a hundred percent of PCB down to a much lower 9 percentage. I guess if he wanted to he could have 10 done that. I think our recommendation -- but I 11 don't know if any of them really did that or not. 12 Q. You made a pretty strong recommendation 13 that they totally replace the PCB fluid, did you 14 not? . 15 A. I would have to read the letter again to 16 refresh my memory, but my guess is we probably did. 17 But, again, it was -- you know, that was up to them 18 to decide. 19 Q. Do you recall requesting that customers 20 send back some kind of signed statement saying that 21 they had replaced the PCB fluid that they had 22 converted? 23 A. My recollection is we tried to get that 24 done just so we could at least know where we stood 25 and I think our management as I recall was 64 WATER PCB-SD0000052773 1 interested in, you know, what's really going on 2 here. 3 Q. Do you have any idea how much heat transfer 4 fluid was actually returned to Monsanto and/or 5 incinerated by Monsanto? 6 A. I can't recall the numbers now. I'm sure 7 at one time I probably did but I can't remember them 8 now. 9 Q. In terms of the amount of heat transfer 10 fluid in use at that time that contained PCB's, do 11 you have any idea how it would relate to the amount 12 of Pydraul or the amount of lubricants in use or was 13 it roughly equal, was it greater or was it less? 14 MR. CHAMBERS: Let me object to the form 15 just for a second because when you talk in broad 16 categories of lubricants and Pydraul and so forth, 17 there are many products, some PCB and some non-PCB, 18 within those groups, and if your question is with 19 respect to PCB lubricants and PCB heat transfer 20 fluid, that's one thing, but if it's lubricants and 21 heat transfer, that's something else. 22 Q. (By Mr. Baker) Okay, my question is meant 23 to be directed to PCB-containing lubricants and PCB 24 heat transfer fluids. 25 A. And, again, at one time I would have known 65 WATER PCB-SD0000052774 1 that, but if I was to guess now, it could be totally 2 misleading. I just cannot. 3 Q. Do you know now whether there was more 4 PCB-containing lubricants in use in the early '70's 5 or late '60's than PCB-containing heat transfer 6 fluids ? 7 A. I don't know. 1 8 Q. Under No. 8 it says "Develop conversion 9 bulletin" and then has your initials as the assignee 10 of that duty. Did you develop a conversion 11 bulletin? 12 A. I recall that we did, but the people that 13 would know that for sure I think would be Paul Gann 14 and Don Roush because they would have been the ones, 15 that were charged to have done that. Roush, from 16 the technical standpoint, began probably from just 17 putting it together in a format that could be 18 readily understood. And it would have been done 19 initially as a guide for these conversion teams. 20 And, secondly, something that could be 21 sent to customers who had the wherewithal to do it 22 themselves and get the thing done more quickly. 23 Q. And do you recall whether that conversion 24 bulletin advised that the heat transfer fluids with 25 PCB's should be completely replaced? 66 WATER PCB-SD0000052775 1 A. I can't recall that. 2 Q. Do you recall whether it advised any method 3 of cleaning up the PCB's in heat transfer fluids? 4 A. I recall we used the term "flushing fluid" 5 quite a bit, but whether that went in the conversion 6 bulletin, I'm not sure. It wouldn't surprise me if 7 it was a reference to flushing fluid. 8 I might add that in this area of heat 9 transfer fluids we were dealing often with customers 10 who maybe didn't have the technical expertise in 11 fluids that you would have had in other areas such 12 as dielectric, such as hydraulic fluids, that type 13 lubricants. These people bought a boiler and tank 14 and pipe and really, ideally, it would have been 15 great if we could put water through there and done 16 all the heat transfer with water, but that isn't 17 practical, so they had to go to other things. But 18 their job was to produce rice or whatever the hell 19 it was they were producing and so they weren't 20 accustomed to getting into -- so they needed more 21 hand-holding, if you will, than many of the other 22 applications. 23 Q. How were these heat transfer fluids used? 24 A. They were used as a means of heating up 25 products or, alternatively, removing the heat from 67 WATER PCB-SD0000052776 1 vessels that could a reaction in a kettle or 2 reactor can produce heat and you need a means of 3 taking it away. Similarly, you want to be able to 4 heat it up. 5 Q. And they were used in the processing of 6 food in some instances? 7 A. They were used in processing of food. They 8 were used in a wide wide variety of applications, I 9 mean many many applications. I can't think of all 10 of them. 11 Q. How did you advise the customers of the 12 heat transfer fluids to clean out their systems 13 during this conversion? 14 A. I recall, as I said, mention of flushing 15 fluids so that drain out what you can, add some 16 other fluid, take that out and then replace it with 17 the new one. We were guided I believe at some point 18 in this whole saga, I seem to recollect that the EPA 19 and The Federal Register, there was some guidelines 20 published as to how many parts per million I think 21 it was would be allowable in -- not sure of 22 foodstuffs but I seem -- the government authorities 23 never banned PCB's. They said that the use in 24 dielectrics in transformers were to continue and in 25 certain areas they talked about you should have 68 WATER PCB-SD0000052777 1 guidelines that should be more than this, so we were 2 at some point -- and, again, I don't know if this 3 fits the chronology that we had the customer look to 4 what the federal guidelines said and they would have 5 done the check to go see whether or not they were in 6 compliance. 7 Q. Why did Monsanto advise customers to flush 8 the heat transfer fluids in this conversion rather 9 than just add initially fluid and delay the time for 10 taking the PCB's out of the system? . 11 A. I'm not sure that I can recall what the 12 decision on that was, and I'm not sure if we said 13 that was the only way or not. 14 Q. Could you tell us why Monsanto would have 15 advised heat transfer customers to flush the fluids 16 and advise Pydraul customers to simply top off their 17 machines with new fluid? 18 A. Well, you know, I don't know whether there 19 was that distinction made or not and I can't think 20 why, if it was made. 21 Q. The next entry here, No. 9, says "Recheck 22 offshore installations, Gulf of Mexico." I have no 2 3 idea what that means. Dr. Paton. Could you - 24 A. There were oil rigs in the Gulf of Mexico 25 and somehow these oil rigs were heat transfer 69 WATER PCB-SD0000052778 1 systems and because of their location, anything that 2 happens out there. -- so fire-resistant fluids were 3 something that the operators of these rigs wanted to 4 have. 5 Q. No. 10 says "Notify OEM's by mail." What 6 were OEM's? 7 A. Original equipment manufacturers. These 8 would be the makers of systems, and that's pretty 9 well true I think of any line of what I call fluids 10 business, be it Skydraul, dielectric, Pydraul, 11 Therminol, whatever, that often the people that 12 recommended what fluid to be used was not Monsanto 13 in any way, it was the OEM. The OEM made his own 14 equipment, he designed it, sold it, and the customer 15 would then ask him. Well, what fluid should I use? 16 And in many cases, and I would say in practically 17 all cases, our product had been tested, sometimes 18 tested for a very long time in great detail by these 19 OEM's and would then give it some kind of an 20 approval. And so consequently, we, obviously, had 21 to let them know that we were discontinuing this 22 line? they should be aware of it so they couldn't go 23 around -- maybe they had to make some adjustments to 24 the design of their equipment to handle a different 25 type of product, so that was all tangled up in that 70 WATER PCB-SD0000052779 1 idea. 2 Q. No. 11 indicates that you were assigned the 3 task of follow-up visits to OEM's. Did you actually 4 conduct such visits? 5 A. I can't say I did. I rather doubt if I 6 would have done much of that. I would have 7 designated that to the technical people I had on my 8 staff that were knowledgeable in that area. 9 Q. Finally, No. 12 says "Evaluate response; 10 review policy" and assigns that task to you also. 11 Do you recall the kind of response 12 that you received on this plan? 13 A. We kept records of what happened where and, 14 again, Mr. Gann would have been responsible for 15 keeping all of that, and then I would have reviewed 16 where we stood and then depending on what come up, 17 we would have seen, okay, what do we do to deal with 18 the dozens of different situations that came up? 19 Q. Was there an effort to quickly notify all 20 your customers about the changeover on heat transfer 21 fluids? 22 A. This was the first time that I was involved 23 in that in this date of sometime in December. I 24 believe there had been earlier notifications which I 25 had not been involved in. I know that to best of my 71 WATER PCB-SD0000052780 1 recollection everybody got notified at the same time 2 in the same way. There might have been others that 3 would have been followed up or either making sure 4 that the salesmen got to that customer himself. 5 There was ones dealing with these key customers but 6 there also was a situation that who specifically do 7 you get to, so when you go to a big company with 8 many plants, you know, we would try to go to the 9 head office and to the plant locations. But we took 10 steps as best I can recall to try to get that 11 mailing out about the same time so it hit 12 everybody's desk about the same time because we had 13 a termination date and I can't remember now if it 14 was the 31st of December. It was specifically 15 designed to be very short because we didn't want 16 people coming in and trying to stockpile or trying 17 to get us to promise that, gee, one more time and 18 that kind of thing because then you wouldn't have 19 known where you were. 20 Q. It appears to me, and correct me if I'm 2 1 wrong, from what I've seen that there was a greater 22 effort to notify heat transfer customers than there 23 was to notify Pydraul customers. 24 First, do you believe that is true? 25 And answer that and I'll have a follow-up for that. 72 WATER PCB-SD0000052781 1 A. No, I don't think I would agree with that. 2 I think there was a great deal of attention devoted 3 to trying to notify Pydraul customers. 4 Q. If it is true, and we'll leave it to other 5 persons to decide whether it is, but if there was a 6 greater effort to notify heat transfer customers 7 than Pydraul customers, can you think of any 8 justification for giving more notice or having any 9 greater effort to ensure that all heat transfer 10 customers received notice rather than Pydraul? 11 A. Well, there are differences between the two 12 product and application areas. It's my recollection 13 that by the time this action was taken on heat 14 transfer that the Pydrauls had already had PCB's 15 taken out of them, so that was number one. So by 16 the time heat transfer customers were told no more, 17 Pydraul customers didn't have fluid containing 18 PCB's. At least we were not selling them any more. 19 And that in the case of Pydraul customers, or should 20 I say hydraulic fluid customers and in things like 21 turbine lubricants and things, there were several 22 producers of, quote, fire-resistant fluid. Some of 23 these contained PCB's, others didn't. Some 24 contained phosphates, some didn't. And so customers 25 didn't always buy the same kind of product all the 73 WATER PCB-SD0000052782 1 time. If they bought from some other customers they 2 were buying, chemically, a different type of product 3 and were unable to interchange those, so it was at 4 times difficult for us to know if, quote, that 5 customer was really still our customer or had 6 switched over to somebody else. We could say with 7 fair degree of certainty that if they were using 8 fire-resistant heat transfer fluids, they were PCB, 9 and if you were dealing in the U. S., the odds were 10 that it came from Monsanto, so to that extent there 11 were differences. 12 Q. So for the heat transfer fluid customers 13 you were contacting, they were buying all or almost 14 all of their fluid from Monsanto? 15 A. That's right. 16 Q. And the Pydraul customers you don't believe 17 were buying all of their lubricants from Monsanto 18 but there were other competitors selling them 19 lubricants? 20 A. Yes. 21 Q. It also appears to me that Monsanto at 22 least attempted to obtain written confirmation from 23 heat transfer customers that they had converted to 24 non-PCB heat transfer fluids and we had not yet seen 25 any evidence that Monsanto had attempted to obtain 74 WATER PCB-SD0000052783 1 written confirmation from Pydraul customers that 2 they had received the.notifications or had done any 3 conversion. 4 Assuming that there was the attempt to '^ 5 obtain written confirmation from heat transfer 6 fluids and that there was not from Pydraul 7 customers, can you think of any 'reason for that? 8 A. Well, part of that I think is that the 9 impetus that a lot of this had seemed to hang around 10 the heat transfer area; that just prior to me 11 getting involved in this kind of work at all there 12 had been an incident somewhere in the Carolinas I 13 believe involving a heat transfer fluid which had 14 contaminated -- I can't remember if it was chicken 15 feed or what it. was, but it got a fair amount of 16 publicity and, consequently, anything in food is a 17 matter of a great deal of, obviously, controversy 18 and concern. So that kind of focused in on heat 19 transfer fluids. 20 I think the very nature of Pydraul 21 hydraulic fluid use and turbine lubricants is not 22 something that you associate with the food 23 industry. Hydraulic fluid compressors, the desire 24 to collect the usage of that in the food-related 25 industry is very very small, so the focus was more 75 WATER PCB-SD0000052784 1 on, well, if there's going to be a problem in the 2 food area it's more likely to come from heat 3 transfer fluids than other sources. Again, that's 4 not to say that there wasn't a lot of effort and 5 attention devoted to reformulating and helping and 6 so on and so forth deal with the Pydraul area. 7 There was an enormous amount of effort devoted at 8 the technical level. 9 Q. Were you concerned that you might have more 10 potential liability in the heat transfer market than 11 in the lubricant market? 12 A. No, no, I don't. 13 MR. CHAMBERS: I will object, but go 14 ahead. 15 A. No, I don't think so. In all the time that 16 I worked there, yes, you had to have some concern 17 about liability, but that was not anywhere near the 18 top of my priority list of the management that I 19 reported to or the people that worked for me. We 20 were concerned about a problem in the environment, 21 that we weren't sure how great it was, but as time 22 went on it became more and more difficult to be able 23 to know what was happening. Customers were getting 24 concerned, so ultimately you reached the conclusion 25 if you could formulate away from these, quote. 76 WATER PCB-SD0000052785 1 supposedly troublesome products you are probably 2 going to be better off. 3 Now, clearly, there were a lot of 4 issues that had to be dealt with because these 5 products were used -- some of the things that people 6 said were problems about them, persistence in the 7 environment, were the very properties that made them 8 useful for these applications. They didn't break 9 down readily, they had fire-resistant properties, so 10 you have the human life aspect. 11 The dielectric industry made 12 representations to the government, Look, if you tell 13 us to quit using those, we have no way to go, and 14 the government, as I say, never banned them, so we 15 were juggling many priorities. 16 I think the liability issue was 17 probably the thing that we worried about least on a 18 day-to-day basis. We were trying to get the job 19 done as best we could to take care of a difficult 20 situation and to satisfy customers as best we could 21 and work them through a difficult situation. 22 Q. I didn't intend to ask you if potential 23 liability was at the top of your list of concerns, 24 but my question was: Were you concerned that you 25 might have more liability with regard to heat 77 WATER PCB-SD0000052786 1 transfer fluids than you did with Pydraul or 2 fire-resistant lubricants? 3 A. That, I can't recall that I ever -- that 4 that distinction ever crossed my desk or my mind. 5 Q. Were you familiar with the Yusho incident 6 in Japan? 7 A. I heard about it through reports and I 8 guess in magazines and newspapers and in talking 9 probably to our people in our Japanese joint 10 venture. 11 Q. Was that one of the factors that caused you 12 to attempt a speedy conversion from PCB-containing 13 heat transfer fluids? 14 A. No, I don't think so. 15 Q. Finally, it appears to me that from your 16 testimony that you invited your heat transfer 17 customers to completely flush their systems and get 18 the PCB's out of the system and replace the heat 19 transfer fluid completely with a non-PCB fluid. 20 From other things we've seen, it appears to us that 21 the Pydraul customers were not advised in the same 22 way; that they were told to top off systems with new 23 products but not to completely flush the systems. 24 Assuming that that is true, can you 25 think of any reason that Monsanto would have treated 78 WATER PCB-SD0000052787 1 the heat transfer customers differently from Pydraul 2 customers in that regard? 3 A. Well, again, it's partly because the 4 customers that were using hydraulic fluids didn't 5 necessarily always buy from us, so it was a bit - 6 you know, we might be telling a customer to flush 7 somebody else's fluid and the customer say, you 8 know, why do that, you know, I've been topping off, 9 and if I'm buying a competitive fluid that doesn't 10 have PCB's, that's the way I'm going to go. So I 11 think there's a difference in terms of who were 12 supplying fluids into the hydraulic area. 13 It just occurs to me, when I see the 14 exception, Goodyear, that that was, in fact, a 15 customer where we did adopt the -- I would say the 16 top-off . situation because that plant was a huge huge 17 plant, hundreds of thousands of gallons of it, so it 18 was physically impossible to just turn a tap and 19 drain it. So what our technical people and 20 Goodyear's technical people and various other people 21 in that supplied the systems for the Goodyear plant 22 worked out was a system whereby, as I recall now, 23 and, again, forgive me if I don't have this a 24 hundred percent accurate, is that we bring in a rail 25 car of the non-FR product and that would go in and 79 WATER PCB-SD0000052788 1 there would be a rail car somewhere in the system 2 taking some out, and over a period of a fairly 3 lengthy period of time, and the figure of nine to 12 4 months seems to stick in my mind, we got that thing 5 diluted down, but that was one where it really was a 6 top-off and drain, although in fairly big 7 quantities, but it was the only practical way to go 8 about that. 9 Q. Are you familiar with any other heat 10 transfer customers that you solicited or assisted in 11 topping off their systems with non-PCB fluids rather 12 than completely flushing them? 13 A. I cannot recall. That's not to say there 14 aren't any. Somebody like Jim Roder or Don Roush 15 might have better memory on that than I did, and 16 there might have been customers that just did it on 17 their own and didn't tell us about it. 18 Q. If you will turn over to the fifth page of 19 this document, it says page 4 because we have a 20 cover page here that's unnumbered and then the 21 second page begins page 1. We turn to what's 22 labeled page 4 of this document. The heading on 23 this page is "PCB/PCT Action Plan, Industrial 24 Fluids," and all the tasks listed on this page are 25 assigned to a CLB. Could you identify that person 80 WATER PCB-SD0000052789 1 for us? 2 A. That's Larry Bradford. 3 Q. And what was his position in about February 4 of 1972? 5 A. He would have been the equivalent of me in 6 the Skydraul, Pydraul, Turbinol area. 7 Q. Now at some point did you replace him or 8 become his superior? 9 A. No, he left the company as I recall and I 10 can't remember the exact date, and then the product 11 responsibility fell under me, but I would have 12 inherited this plan, and my recollection is that I 13 would have continued on with it. But the plan was 14 formulated by him and his people and the reasons 15 behind it were his people, so he's really the best 16 person to answer some of the questions you've been 17 asking me. 18 Q. I hope we could find him and ask him those 19 questions. 20 A. I don't know where he is. I'm sorry, I 21 haven't seen Larry in years. 22 Q. Just in case we can't or perhaps if he 23 can't remember, let me try to get as much 24 information as we can from you. First* this plan is 25 dated February 10, 1972. 81 WATER PCB-SD0000052790 1 From your previous testimony you 2 testified that sometime in '72 or '73 you became 3 Product Manager for all fluids? 4 A. Uh-huh. 5 Q. I believe that is the point you would have 6 taken over this plan? 7 A. That's right. 1 8 Q. Can you perhaps narrow down that date for 9 us at this stage? 10 A. I wish I could and -- I think it was later 11 in '72 but it might have fallen on to '73. I just 12 honestly can't remember now. 13 Q. Can you perhaps tell us which of the 14 actions on pages 4 and 5 under Pydraul --Pydraul 15 starts about half way down page 4 and continues 16 through most of page 5. Can you tell us which of 17 those actions you became responsible for? 18 MR. CHAMBERS: Let me object to the form of 19 the question, just to clarify. Since he's testified 20 he inherited the plan, in that sense he became 21 responsible for all of them, but are you more 22 interested in whether he took specific action on 23 items listed here that he could identify for you? 24 MR. BAKER: If you would like, I would ask 25 that question. 82 WATER PCB-SD0000052791 1 MR. CHAMBERS: Doesn't matter to me, and 2 I'm not trying to be overly intrusive. I think I'm 3 objecting -- well, I am objecting to the use of the 4 term "responsibility" in light of what his previous 5 testimony has been. I think that's been asked and 6 answered. But if you're interested in specific 7 measures that he took, I think that's probably an 8 area that has not been covered. If you mean it in 9 that way, he's welcome to answer. 10 Q. (By Mr. Baker) Let me ask you, Dr. Paton, 11 did you become responsible for all 22 of these 12 actions or had some of these been completed before 13 you took over responsibility for the plant? 14 A. Some of these would have been completed 15 before I took over the plant. 16 Q. Which of the ones to the best of your 17 recollection were not completed before you took over 18 the plant and which ones did you then become 19 responsible for? 20 A. Things like visiting all accounts, that 21 would have been an ongoing thing. Now that would 22 not necessarily mean either I would have been 23 visiting accounts just for a PCB or PCT thing, but 24 visiting accounts is something I would have done. 25 Aroclor 6037, 5460, I can't recollect 83 WATER PCB-SD0000052792 1 doing a great deal on that. I think that at some 2 point I think we went from PCB Pydraul to PCT 3 Pydraul, then we got out of PCT Pydraul, and I can't 4 remember exactly when we got out of PCT Pydraul, 5 whether that was on my watch or started in Larry 6 Bradford's watch. It looks as though it started on 7 his watch, in which case the decisions on what the 8 formulation is going to be, et cetera, et cetera, 9 would all have been in place, so I would have just 10 said, okay, fine. 11 I would not have been involved in 12 setting literature and prices because that would 13 have been done -- given the dates, I wasn't involved 14 in that. 15 Application for approval at Bureau of 16 Mines; no, I would not have been involved in that 17 anyhow. That would have been Davidson, Roger Hatton 18 type thing. 19 5/1, stop manufacturing PCT fluids -- 20 so I think through No. 15 I don't think I had any 21 involvement or not. Now, conceivably, I think the 22 earliest that I might have got involved in the 23 Pydraul area if you asked me about pinning it down 24 narrower, if I had to, really, I would say it was 25 between maybe the middle of '72 and maybe the middle 84 WATER PCB-SD0000052793 1 of '73, but that is a guess. I might be out date or 2 what. So, really, most of this would have been 3 underway or completed I think before I took over. 4 Q. On No. 5, visiting all accounts, you said 5 that was an ongoing thing? 6 A. Yeah, and again, all accounts but -- sorry. 7 I'll let you finish the question. 8 Q. Was there a list of customers that Larry 9 Bradford, and later you, were responsible for seeing 10 that they were visiting? 11 A. No, I think this would mean that we would 12 have made sure that the people in the marketing 13 area, technical service area and the sales force, 14 some combination worked out, would have visited all 15 the accounts. Some he and I would have gone on, and 16 in my case it would probably be more of a commercial 17 nature. Certainly, when I was new it would be to go 18 to some to get a flavor of what the business was 19 like. But there were salesmen that had been 20 assigned territories and they are really the primary 21 interface. This would have fell to them to make 22 sure that they visited all of their accounts and 23 then if they wanted support or something arose on a 24 call where they needed somebody to come in with 25 them, that request would have been made into the 85 WATER PCB-SD0000052794 1 product group and normally that was complied with to 2 the extent it was possible. 3 Q. Was there anywhere a list, either on a 4 computer or on paper, of these customers that you 5 were attempting to visit? 6 A. We would have maintained -- in those days 7 there would have been weekly sales runs and monthly 8 sales runs generated on computer. Got these reports 9 in these big thick bulky piles that came in those 10 days and the salesmen would have got the ones for 11 his territory, the product group would have got the 12 complete list, and these were available and these 13 were gone through, so there were records kept. 14 Q. Was a copy of a list maintained at 15 Monsanto? 16 A. When you say "a list," did somebody go 17 through and say, well, gee, I cannot remember if 18 that was really done or not, but there was certainly 19 computer runs generated and distributed on a very 20 regular basis to product departments and to the 21 sales offices. 22 Q. Was there a system for feedback from your 23 salesmen to where you could determine whether they 24 had visited all these accounts? 25 A. They had a program of writing sales 86 WATER PCB-SD0000052795 1 reports, and so I cannot sit here and swear that 2 every salesman religiously did that, but the 3 practice -- and the sales manager was really the one 4 responsible for policing the performance of his 5 salesmen. I should probably today say salespersons, 6 sales manager persons and salespersons. You get 7 older it's more difficult for me to remember all 8 these changes. Salespersons, I'm trying to say 9 that. Where am I? Lost my train of thought. 10 MR. CHAMBERS: The question was whether 11 there was a system for feedback from salesmen and 12 you were referring to the salespeople. 13 A. There was a sales reporting system, usually 14 on yellow paper in those days, which would have come 15 to the Product Manager and would have probably 16 copied in the Market Manager, the technical person, 17 obviously, the sales office, and as I say, that 18 covered -- I can't, obviously, swear everyone but 19 that was meant to be the system where that was done. 20 Q. Did you keep copies of these reports? 21 A. What I would have done is I would have read 22 them, I read all of them as they came in. Then I 23 would have given them -- my secretary would have 24 filed them and, again, it would have fallen to 25 probably the retention system, whatever that was. 87 WATER PCB-SD0000052796 1 If occasionally I would have read something that 2 caught my attention, I would have either gone back 3 to the salesman or sent it to somebody in my 4 department or elsewhere and said please follow up on 5 whatever that happened to be. 6 Q. Did you or to your knowledge anyone else at 7 Monsanto maintain a checklist to where you could 8 check off the companies after the salesmen had 9 visited them? 10 A. I can't recollect me doing that personally 11 but marketing managers might have done that, but I 12 can't recall it. 13 Q. After you became Product Manager for all 14 fluids can you tell us who the salesperson or 15 salespersons were who were responsible for Kentucky 16 or Pennsylvania? 17 A. The name Paul Craska rings a bell for 18 Pennsylvania because I think Paul at one point was 19 located I think in Pittsburgh if I'm not mistaken. 20 Now whether his territory covered Kentucky, I can't 21 recall. 22 The man that I mentioned, Rollie 23 Garcia, and I think he was out of Akron at one time, 24 he was out of Detroit at another. He had the area 25 that I recall being the Midwest. He would be _ __ WATER PCB-SD0000052797 1 another. 2 Norman Johnson, since he was sales 3 manager, if you will, for all fluids might have, you 4 know, remembered. 5 Q. On the next page, numbered page 5, No. 17 6 says "Stop manufacturing PCT fluids." Target date's 7 May 1st I assume, 1972, from the date of the 8 memorandum. 9 When you became Product Manager for 10 all fluids had Monsanto already stopped 11 manufacturing PCT fluids or did that happen after 12 you became Product Manager? 13 A. I cannot remember, and the reason I'm in 14 doubt is that I remember discussing with Jerry 15 Davidson the PCT line and I cannot now recall if 16 that was historical to help me understand the 17 transition or whether we were in a mode of changing 18 over or not, so I can't recall. 19 Q. Why did Monsanto stop manufacturing PCT 20 fluids? 21 A. I really -- I'm a bit hazy now on the 22 reason. I cannot now recall the exact 23 circumstances. 24 Q. Can you recall anything about it? 25 A. What I recall in the PCB area, I recall 89 WATER PCB-SD0000052798 1 there was considerable confusion and disruption of 2 plans to try to get out of what we considered that 3 anything that was poly. For just a scientific 4 accuracy is two or more. "Poly" means more than one 5 and "mono" means one, and as I recall, when you 6 think of -- as the biodegradation studies were 7 proceeding I think it was shown that as you had less 8 chlorine, the more biodegradable they were, and if 9 you had mono you had something that could biodegrade 10 much faster than the others. 11 So at one time it looked as though 12 maybe for applications such as dielectric fluid, 13 capacitor fluids, not transformer, dielectric 14 fluids, that a monochloro might be satisfactory. 15 However, somewhere in this chain of events, for 16 reasons best known to themselves, our government 17 bureaucracy was involved and decided that everything 18 was poly, mono as well. Now, that's absolute 19 nonsense. It just shows you how we come about 20 making national policies. So mono suddenly became a 21 poly, and so then everybody was -- we got PCB' s so 22 then you try going out teaching Congress, the media 23 and everybody, don't worry, I mean mono isn't a 24 poly, so you just give up the ghost. 25 So that obviously screwed up good 90 WATER PCB-SD0000052799 1 well-intentioned science and conceivably we got into 2 some other kind of a muddle in the terphenyls, I 3 cannot recall, or possibly somebody said to us. 4 Well, gee, did the biphenyls or terphenyls contain 5 some biphenyls mixed in, and I honest to God don't 6 know. But there had to be some or maybe it was 7 -- I don't know, and Papageorge may be a better bet 8 on that. 9 Q. The preceding number, No. 16, says "No old 10 fluid accepted for credit after this date." 11 Can you tell us what that meant? 12 A. No, I can't. 13 Q. And then this indicates that you planned by 14 approximately May 1st 1972 to stop manufacturing PCT 15 fluids but you were going to continue selling those 16 and try to sell the last of them by the end of May; 17 is that correct? 18 A. Well, that's what it says here. 19 Q. And then in No. 21 it says "Incinerate any 20 remaining PCT fluids." I guess the ones you 21 couldn't sell by the end of May, incinerate those on 22 June 30th 1972; is that correct? 23 A. 24 here . I have no reason to doubt what it says 25 Q. Were you involved in the incineration of 91 WATER PCB-SD0000052800 1 remaining PCT fluids? 2 A. I can't recall that I was directly 3 involved. We had an incinerator that was the same 4 incinerator as I recall that we used for other PCB 5 fluids and that I got reports on how much we were 6 doing and so on and so forth, but other than that, I 7 didn't run it, but I would have been -- my 8 department, Pydraul Department, Dr. Davidson, me as 9 a supervisor, would have been involved in 10 communicating anything to the field sales force on 11 what was going on then. 12 MR. BAKER: I have no further questions on 13 Plaintiff's Exhibit 58. 14 (A brief recess was taken.) 15 Q. (By Mr. Baker) Dr. Paton, in the early 16 '70's what persons were responsible for Pydraul 17 marketing? 18 A. You mean in St. Louis? 19 Q. Yes, in St. Louis. 20 A. In the early '70's as best I can recall it 21 would have been Larry Bradford, who would have been 22 Product Manager. 23 Q. Is that Product Manager for Pydraul or for 24 all fluid? 25 A. No, I don't think -- well, there was a Tom 92 WATER PCB-SD0000052801 1 Gossage was the director of marketing for all 2 fluids. He reported to Howard Bergen, who was like 3 the general manager I believe or business director. 4 I can't remember the exact title. That was the 5 function. That would have been all fluid. 6 Then there would have been a series of 7 Product Managers and I don't know whether Bradford 8 always had Skydraul and Pydrauls or if at some point 9 these might have been two separate things. 10 Basically, there were four areas of 11 fluids. Skydraul; this had nothing to do with 12 PCB's. Pydraul, Therminol and dielectric, and I'm 13 not sure. As I say, Bradford had -- I know he had 14 Pydraul at one point. Jack Fallon would have been 15 heat transfer. Paul Benignus would have been 16 dielectric. Then Fallon left, I was brought in as a 17 Product Manager and had Benignus report in to me and 18 picked up the Therminol market area, and at that 19 point I know, which would have been late '71, then I 20 know that Bradford was my counterpart. And then 21 when he left, then I picked up all of that. 22 Q. I'll show you a document that's been marked 23 Plaintiff's Exhibit 102. It appears to be a letter 24 from you dated February 17, 1972. I'll ask you to 25 review this and see if you can identify it for us, 93 WATER PCB-SD0000052802 1 please. 2 A. Yes. 3 Q. Did you write this letter? 4 A. I have no reason to believe I didn't. It % 5 also shows, incidentally, that I -- at least as of 6 February 17th I didn't have Pydraul in my realm of 7 responsibilities. 1 8 Q. That's February 17, 1972? 9 A. Yes. 10 Q. The bottom of the first page of this letter 11 -- first, to whom did you send this letter, and to 12 the best of your recollection can you tell us why 13 you sent the letter? 14 A. Well, I had received a telephone call from 15 Mr. Guinipro at this Westinghouse facility who 16 apparently who must have had some use for Therminol 17 FR there and I was writing back to him putting on 18 record what I guess we discussed and what I told him 19 on the telephone. 20 Q. At the bottom of this page you refer to 21 incineration of Therminol that is being returned by 22 customers, that you were converting to non-PCB heat 23 transfer fluids. 24 Was that Monsanto's policy, to 25 incinerate this Therminol product that was returned 94 WATER PCB-SD0000052803 1 by customers? 2 A. We offered incineration services to . 3 customers and, you know, that didn't necessarily 4 mean it was always free, but the service was 5 available. 6 Q. Did you encourage your Therminol customers 7 to return fluids for incineration? 8 A. As I recall, we said that that service was 9 available and if they wanted to avail themselves of 10 that service, here's what they had to do, et cetera, 11 et cetera. 12 Q. And for purposes of the record, Therminol 13 was a heat transfer fluid? 14 A. Yes. 15 Q. We talked previously about the conversion 16 of these facilities from heat transfer fluids 17 containing PCB' s to non-PCB fluids; is that correct? 18 A. Uh-huh. 19 Q. Ask if we could see the Plaintiff's Exhibit 20 52 . 21 MR. CHAMBERS: It's the February 16 '70. 22 Q. (By Mr. Baker) February 16, 1970, 23 memorandum from Mr. Johnson, and I believe you saw 24 this previously today and if I recollect correctly 25 you said you did not recall having seen it before; 95 WATER PCB-SD0000052804 1 is that true? 2 . A. Yes. 3 Q. In this memorandum at the end of the second 4 paragraph of the first page Mr. Johnson has told the 5 salespeople we don't want to take fluid back. Now 6 he's referring to Pydraul products there rather than 7 Therminol. 8 Can you tell us why Monsanto would 9 have had a different position with regard to 10 Pydraul? 11 MR. CHAMBERS: Let me interpose the 12 objection whenever you're done with the question 13 because this is a document that's never been -- that 14 doesn't have Dr. Paton's name on it, that he's never 15 been provided with, and it comes from a time frame 16 of February '70 that's much different than the time 17 frame we've been looking at. But subject to the 18 objection, to the extent he can answer your question 19 about Monsanto's policy at this time, he's certainly 20 welcome to do that. 21 A. I obviously cannot say what prompted 22 Mr. Johnson to write what he said, so I don't know 23 what his reasons for writing "we don't want to take 24 fluid back." 25 What I can say from my experience and 96 WATER PCB-SD0000052805 1 knowledge of the fluids from a perspective once I 2 was Product Manager for everything, that in the case 3 of the FR fluids we knew what we were going to get 4 back, we knew we were going to bet back PCB's, 5 number one. 6 Number two, that the customer in the 7 heat transfer area had to go from a fire-resistant 8 fluid to a non-fire-resistant fluid. Therefore, we 9 had to be sure that he understood that there might 10 be some difficulties. In fact, we didn't have to 11 tell him. Most customers, they got on the 'phone 12 and said. Gee, this is very serious for us. We 13 don't want to do it. Don't you realize you're 14 putting our property, our employees at risk, et 15 cetera, et cetera? That's why we put a conversion 16 team together to help them with things that they 17 might be able to do to redesign the system, modify 18 the system, change seals or whatever, to reduce the 19 chances of a fire. 20 It explains again partly why we didn't 21 think necessarily that top-off was such a good thing 22 to do because as you are going and topping up with 23 an un-fire-resistant fluid, the fire resistance 24 would be increasing and at what point you get into a 2 5 problem, I don't know. So if you're going to have 97 WATER PCB-SD0000052806 1 to do a changeout we thought from a practical 2 purposes from a fire-resistant standpoint you better 3 do it in one go. But I also said there was an 4 exception in the case of Goodyear because physically 5 the thing was so damn big. 6 In the case of the Pydraul, when you 7 were dealing with hydraulic fire-resistant fluids 8 there was a variety of types available from 9 different suppliers. We knew that our customers 10 would add somebody else's fluid of different 11 chemical composition, et cetera, and could keep 12 going and, therefore, in changing out they were 13 probably subject to less of a fire-resistant risk 14 than the heat transfer people were, so topping up 15 was something that they did, and when they were 16 topping up they weren't necessarily I don't think 17 compromising their fire resistance because the 18 hydraulic fluids from us and our competitors had to 19 meet certain Underwriter Lab standards. So the fire 20 resistancy should have been at least able to pass 2 1 that U. L., whatever their desk was. 22 Q. Okay, Dr. Paton, in your answer you 23 referred to FR fluids. Is that Therminol fluids? 24 Is that what you meant? 25 A. FR means Therminol fire-resistant, and the 98 WATER PCB-SD0000052807 1 only type that we produced was PCB-based. 2 Q. Let me show you another letter. I'll show 3 you a document marked Plaintiff's Exhibit 100. 4 Appears to be a letter signed by you dated May 25th 5 1972. It does not have an addressee. I'll ask you 6 to review that and see if you can identify it for 7 us. ' 8 MR. CHAMBERS: While he's reviewing that it 9 would be a good place for me to interpose my 10 objection for the record that this deals with 11 Therminol FR, which is not a Pydraul product, and I 12 would object it's not relevant to the issues in the 13 case, but subject to that objection, go forward. 14 I would add. I'll make these as 15 continuing objections. I just don't want to disrupt 16 by having to make an objection every time that this 17 comes up. 18 MR. BAKER: Have we told you about our 19 local rule that you can't make a continuing 20 objection? 21 MR. CHAMBERS: Thanks. Wait until I get 22 hold of that transcript. 23 A. Yes. 24 Q. (By Mr. Baker) Dr. Paton, did you prepare 25 this letter? 99 WATER PCB-SD0000052808 1 A. No reason to say no. 2 Q. It does not have an addressee. Do you know 3 to whom this letter or similar letters were sent? 4 A. I can't recall specifically now. One 5 thought is that this might have been a draft of a 6 proposed letter. 7 Q. To the best of your recollection did you 8 send letters similar to this to Therminol customers? 9 A. I can't recall if this went out or not. 10 Q. To the best of your knowledge does this 11 accurately reflect the Monsanto policy on disposal 12 of Therminol as of May 1972? 13 A. To the best of my recollection I think this 14 probably does reflect what we did. 15 Q. Dr. Paton, I'll show you a document marked 16 as Plaintiff's Exhibit 53, ask you to first review 17 this . 18 A. Yes. 19 Q. Dr. Paton, have you reviewed Plaintiff's 20 Exhibit 53? 21 A. Yes. 22 Q. I notice at the top of the page it 23 indicates a carbon copy to you. Do you recall 24 having seen this document before? 25 A. No. 100 WATER PCB-SD0000052809 1 Q. Who was J. H. Davidson? 2 A. That would be Jerry Davidson, who, as I 3 say, was the Market Manager. 4 Q. Market Manager over what products? 5 A. Over Pydraul products or hydraulic fluid 6 products or that type of thing. 7 Q. This is a memorandum dated June 28th 1972 8 and indicates it was directed to Mr. Potter, 9 Mr. Sprague and Mr. Smid. 10 Were those all three marketing 11 persons? 12 A. No, they were in the production, planning, 13 distribution function. 14 Q. Do you have any reason to believe that this 15 memorandum was not sent to you? 16 A. I'm certain it probably was sent to me. 17 Q. Does this indicate that you were in the 18 position as manager for all fluids by June of 1972? 19 A* That is the interpretation. I would be 20 inclined to say yes. 21 Q. This memorandum indicates that salespeople 22 had done a very good job of getting rid of the old 23 Pydrauls even though the customers were asking for 24 the new Pydrauls. Says they sold every drum. 25 Do you recall during this time period 101 WATER PCB-SD0000052810 1 that every drum of old Pydrauls had been sold? 2 A. I can't say for sure but I have no reason 3 to dispute what Johnny is saying. Now, when he says 4 "all," does he mean absolutely zero or a few drums 5 left, I couldn't speculate at this time. 6 Q. During this time period were you happy with 7 your sales force that they were able to sell all the 8 old Pydrauls even though Pydraul 90 E and others had 9 been developed and were available and customers were 10 asking for them? 11 A. Well, as I would read this, he's sending it 12 to people whose function was to try to sort 13 ourselves through -- we had set a date when we were 14 going to stop selling PCT's. These people then had 15 to make sure there was enough PCT's there to get us 16 through that date and then get production geared up 17 to make the new line, to get it formulated and get 18 it shipped, sent out to all our warehouses and 19 distribution points. Trying to juggle that, that 20 everything is in the right place at the right time 21 is extremely difficult because the whole nature of 22 fluids is such that they don't use a pound a day of 23 Pydraul, you know. Something happens, somebody says 24 I've broken a line, I need another ten drums, so 25 it's not a very -- it's a difficult thing to predict 102 WATER PCB-SD0000052811 1 accurately. 2 Also, I think there was less concern 3 about the PCT ones because, as I recall, I don't 4 think EPA or FDA or whoever ever really -- and I may 5 be wrong in this but the best of my recollection is 6 -- and, again, others that you have been taking 7 deposition from could giver better answers than I 8 can, but I don't recall that PCT ever came up as a 9 major issue. In fact, I remember from my 10 plasticizer days that we were trying to get Aroclor 11 5460 at one time, which is a very good hot melt 12 adhesive for packages. We had done a lot of tests 13 that indicated it might even receive FDA approval. 14 Needless to say, we didn't proceed through with 15 that. 16 And you asked me something that 17 related to the difference between PCB and PCT 18 earlier and just this thinking through, that it may 19 mean that there was nobody -- we thought, my Lord, 20 why go from one chlorinated product to another, you 21 know. Are we just delaying -- are we going to be 22 faced with a PCT problem? Again, I can't recall all 23 the reasons for that but I would seriously question 24 if a customer said, Look, I really must have the new 25 product and I'm not going to take any of your old 103 WATER PCB-SD0000052812 1 PCT, we probably would have done our best to make 2 sure they got it. But if it's a case where the guy 3 says, I like the new ones, but we said. Look, only 4 one we've got in our warehouse is this, and he says, 5 Gee, if you don't ship to it me I'm going to stop 6 production because I'm out of fluid but I think the 7 main message he had to get across is these guys in 8 production, planning distribution and the plant and 9 everything had done what was asked of them and it 10 was a pat on the back for how they had done it. 11 Q. And they had managed to sell all the PCT 12 Pydraul? 13 A. Well, they had not, the salesmen, and what 14 we were really saying to these guys. Look, you 15 didn't build up a huge inventory of PCT we didn't 16 need, so your forecasting, production planning, 17 sales scales had kept the thing pretty much in 18 balance. That's how I read this memo. 19 Q. And the PCT Pydraul was manufactured and 20 marketed after you knew about the PCB problem? 21 A. Yes, because at one time we did think that 22 the PCT's did not have a problem. We did not see 23 that in the same line as we saw the potential PCB 24 problem. As best I recall, I don't think I ever 25 read or saw scientific reports that said. Gee, PCT's 104 WATER PCB-SD0000052813 1 are available in the environment like the 2 allegations about PCB's and so, therefore, that did 3 not seem to be same kind of a problem. 4 Q. But within a year after you started 5 marketing PCT Pydraul you had already decided to 6 take it off the market? 7 A. And, again, I cannot recall all the 8 reasons. I can think, however, just my perspective 9 on the thing that we might have been subjected to 10 some management -- or maybe as we thought through 11 the thing somebody saying. Well, the reason maybe we 12 haven't seen a lot of PCT is we haven't sold as much 13 PCT as we sold PCB's over the years. What's to say 14 if we switch everybody over to PCT, in five or ten 15 years somebody is going to say in Lapland we're now 16 finding PCT, so we've gone through all of this grief 17 and haven't really solved the problem. And I can 18 certainly think back to the colleagues I worked 19 with, some of them posing these very legitimate 20 questions and probably as a marketing business 21 person, I couldn't look across the table and say. 22 Hell no, don't worry. Trust me, that won't happen. 23 The odds are I probably said, I don't know, and then 24 somebody higher up the line then saying. Well, we've 25 already spent a fortune on all of this, so why go 105 WATER PCB-SD0000052814 1 half a step forward? Maybe the thing is to go 2 through -- and I'm throwing out, you know, how it 3 may have evolved, but I'm just thinking through what 4 would have happened. 5 Q. So it appears to you that Pydraul was 6 marketed with PCT's at a time when you knew there 7 was a PCB problem and you thought that there might 8 be the same problem with PCT? 9 A. No, I didn't say that. I don't think it 10 happened that way. At the time we would have gone 11 to PCT, the evidence we had was that PCT was not a 12 problem. In fact, I just said there was work done 13 which would have led to us going to the FDA, and I 14 remember that from my own job in the plasticizer 15 area, of preparing a petition to go to the FDA to 16 get it approved, and that meant we had data. And, 17 again, I'm thinking back, it had to do with feeding 18 studies, toxicity studies, a whole lot of things. 19 We said. Look, FDA, we're making this big petition 20 to you. We think the supporting data would justify 21 you approving it, and I remember being involved in 22 that. 23 I cannot recall now whether we 24 submitted it and then took it back or whether this 25 PCB overtook it and we said. Gee, let's wait. But 106 WATER PCB-SD0000052815 1 our scientific and the people in product safety had 2 a real high assurance they felt it was okay. 3 Therefore, based on that, we decided that would have 4 been one of the reasons to look at PCT as a step. 5 Then along the line of what I've just 6 said, another reason came up, somebody saying, Well, 7 maybe down the road, since there's more of it sold, 8 maybe it will start appearing in the environment. 9 That's when you've got to make judgments. 10 Q. They said you were involved in the FDA 11 application for approval of PCT' s to be used as an 12 adhesive? 13 A. Yes, in the plasticizer area. 14 Q. Would that have been somewhere toward the 15 ' end of 1966? 16 A. No, that would have been in the '68 to 1970 17 time frame. 18 Q. And at that time you had done some acute 19 toxicity studies regarding PCT's, had you not? 20 A. Whatever would have been necessary to 21 present the petition to the FDA we would have done 22 or had under way and, again, I cannot remember all 23 the specifics but I do know that work was being 24 done. 25 Q. Do you recall whether you had done any 107 WATER PCB-SD0000052816 1 biodegradation study of PCT's at that time? 2 A. Again, I cannot recall, but people like 3 maybe Emmet Kelly might have a recollection of that. 4 Q. Do you recall whether you had done any 5 chronic testing of PCT's at that time? 6 A. Again, I cannot recall, but Papageorge, 7 again, might be a source of that!. What I'm saying 8 is, it wasn't just me as a marketing manager sales 9 promotion kind of a guy saying I'm going to write to 10 the FDA. Before I could have even begun to think of 11 that I would have had to have evidence presented to 12 me by our scientific and technical community saying 13 we know this is a reasonable thing to do or we 14 wouldn't have done it. And, again, I cannot 15 remember if we put it in and withdrew it or whether 16 all these other events overtook it and we never put 17 it in, but I know it was one of the things that I 18 was thinking about back in the '60's. 19 Q. At the time you worked for Geigy in the 20 early '60's were they involved in any biodegradation 21 studies on products? 22 A. Not that I can recall. 23 Q. You know if they did chronic testing on 24 their products? 25 A. I don't know if they did. We're now going 108 WATER PCB-SD0000052817 1 back, what? 30-odd years in the European chemical 2 industry and I can't recall what they were. 3 Q. Show you a document marked Plaintiff's 4 Exhibit 67 and ask you to please review that. 5 At Ybs t 6 Q. Did you prepare the first two pages of this 7 exhibit? 1 8 A. Again, I think, yes, I'm sure I did. No 9 reason to say no. 10 Q. And this was done sometime around July 17, 11 1972, after you were responsible for all fluids; is 12 that correct? 13 A. Yes. 14 Q. To the best of your recollection tell us 15 what prompted you to do this at that time. 16 A. Well, I was probably almost certainly new 17 in terms of taking over this area and so in all 18 likelihood I had discussions with Jerry Davidson and 19 probably Norman Johnson, who was the sales manager, 20 saying. Okay, tell me what you have been doing in 21 the Pydraul area, and listen to what they told me. 22 Almost certain I asked about customer notification, 23 et cetera, et cetera, and then maybe from their 24 standpoint -- I was then coming from an area where 25 we had a program in Therminol, kind of tried to 109 WATER PCB-SD0000052818 1 prepare and say, okay, how were they doing things 2 compared to us, and from my perspective are there 3 areas that we need to focus on as we moved through 4 this program? And these apparently are three things 5 that came to my mind as issues and I was sending it 6 to the people involved in the various aspects of the 7 PCB issue in Monsanto kind of saying here's my 8 thoughts; now what can you do about it? Here might 9 be my recommendation. But I was also looking for 10 them to say, okay, but here is information you don't 11 have, et cetera, et cetera, et cetera, so it was to 12 initiate a dialogue as to where we stood. 13 Q. This was not a statement of company policy 14 or final company decision, this was an initial 15 statement of your feelings and you were hoping it 16 would lead to discussions to develop a company 17 policy position? 18 A. Yeah, for them to say, look, there was 19 other things and et cetera, so I was trying to get 20 on top of the job and say here's some things that 21 have struck me. Now where do we go from here? 22 Q. Did it not seem to you at that time that 23 Monsanto had done a better job of providing 2 4 information to Therminol customers than they had to 25 Pydraul customers? 110 WATER PCB-SD0000052819 1 A. No, I wouldn't say that. I mean, again, I 2 had been coming in and I knew what I had done 3 there. I really didn't know the other area, but on 4 the other hand, there was a great deal of 5 differences with the other area and so I wouldn't 6 mean that just because they hadn't done this, that 7 didn't mean they had done other things. 8 For example, one of the things I 9 learned in that area, particularly in the turbine 10 lubricant compressor area, was that the OEM carried 11 a great deal more weight than they did normally in 12 heat transfer. Yes, in heat transfer fluids we had 13 OEM's but they didn't go through usually as rigorous 14 testing of the fluid per se as did the compressor 15 OEM's. The vendor of heat transfer equipment, once 16 he knew the physical properties of the fluid, he can 17 design what kind of valves and seals he needed. 18 However, when you're dealing with compressors you're 19 dealing with a lubricant. How well does it prevent 20 moving parts from rubbing together? So they then 21 need to test it. So it is Ingersoll-Rand, the GE, 22 whoever it is that makes all these compressors. 23 I do know that Roger Hatton, the 24 technical service man, spent a great deal of time 25 with these OEM's because they really said whether or 111 WATER PCB-SD0000052820 1 not your fluid could go into that equipment. 2 Q. Is it a fair statement that when you wrote 3 this memorandum you were concerned that Monsanto 4 might be exposed to liability for not advising ' 5 Pydraul customers to clean out their system? 6 MR. CHAMBERS: Object. But subject to my 7 objection, you can answer. " 8 A. I had gone through -- as we tried to change 9 over the Therminol FR customers I think it's fair to 10 say that all of them were unhappy. They were 11 concerned because they saw property protection being 12 diminished by not having fire-resistant fluid, a 13 potential danger to employees. These were, to them, 14 high priority. Here was I telling them. Look, as of 15 such and such a date I take that away from them, and 16 so I got some rather tough-minded 'phone calls. I 17 was requested to go visit places where management of 18 various companies would sit me down in a room like 19 this and have at me for a while and would make all 20 kinds of claims, and how I had done this and done 21 that and how I was liable for this, that and the 22 other, so I became a little bit more wary, realizing 23 what I perceived as trying to do good in the world, 24 other people had a totally different view, so not 25 everybody behaves as I would like them to behave. 112 WATER PCB-SD0000052821 1 So it occurred to me that somebody 2 might, indeed, make that claim, so I was just maybe 3 being street smart saying, hey, you know, that's 4 something we might want to think about. 5 Q. You had had heat transfer customers claim 6 that Monsanto was responsible for paying the cost of 7 conversion, had you not? ' 8 A. Put it this way: We had people that said 9 that we were really responsible for the problem and, 10 therefore, they would make some insinuations that it 11 was all my fault and, therefore, I should do 12 something about it. We resisted those. 13 Q. They had tried, in your words here, to pin 14 the cost of the conversion and related problems on 15 Monsanto; is that not correct? 16 A. Uh-huh. 17 Q. Partly because they claim you hadn't 18 properly warned them about the need for system 19 cleanup? 20 MR. CHAMBERS: Objection. 21 A. No, no, I didn't say that. 2 2 THE WITNESS: Objection. And if we're 23 going to get into questions calling for legal 24 conclusions of that sort we may get into a problem 25 about whether we go forward along that line or not. 113 WATER PCB-SD0000052822 1 At this point just let me restate my 2 objection, and subject to that, you're welcome to go 3 ahead and answer, Dr. Paton. 4 A. They were very unhappy that they had to 5 stop using this product, period. Felt that we 6 should continue to supply it and, therefore, I 7 thought, well, gee, possibly some people are going 8 to come up with some other reasons. 9 Q. Let me just read a statement from your 10 memorandum, and I'm not asking you to comment on the 11 merits of anyone's claim, I'm just trying to get at 12 the existence of those claims prior to 1970, July 13 1972 . 14 You stated in this memorandum, 15 "Further, we know from heat transfer experience 16 that certain PCB-affected customers have tried to 17 pin the cost of conversion and related problems on 18 MICC...". 19 I assume that's Monsanto Industrial 20 Chemical Company? 21 A. Uh-huh. 2 2 Q. "...because of alleged failure to properly 23 warn them on need for system cleanout, et cetera." 24 Now, you did include that language in 25 your memorandum, did you not? 114 WATER PCB-SD0000052823 1 A. What language? 2 Q. The language I just read from, "Further" 3 through "et cetera." 4 A. Uh-huh. 5 Q. And that was true at the time you wrote it, 6 was it not? 7 A. Yes, but what I also say, that did not mean 8 that we had acquiesced in doing that. In fact, to 9 the best of my knowledge we never did, in fact, do 10 that. We had people that tried to pin it on us but 11 we did not follow through and pay. 12 Q. I'm not here today claiming that you've had 13 a history of following through and paying on those 14 claims, but you had had customers prior to July of 15 1972 claim to you that Monsanto should be 16 responsible for the cost of conversion and related 17 problems because of alleged failure to properly warn 18 them on the need for system cleanout, et cetera, had 19 you not? 20 A. Uh-huh. 2 1 Q. And you resisted those claims? 22 A. Resisted, and to the best of my 23 recollection we were, I think, the best I know, able 24 to say. Look, you did know what was going on. It's 25 not something that was unknown to you. 115 WATER PCB-SD0000052824 1 Q. Now, let me read the next sentence and ask 2 you if you intentionally included that within your 3 memorandum and whether it was true at the time that 4 you wrote it. 5 "Since we have not alerted 6 food-related users of PCB Pydrauls in a special way 7 like we did Therminol FR users, we may be leaving 8 ourselves open to future claims or, worse yet, 9 renewed publicity on PCB's a' la fish meal 10 instance." 11 I'm not asking you to comment on the 12 legal validity of any claims but whether when you 13 wrote this you personally believed it to be true. 14 A. I thought that that was a possibility. It 15 was conjecture on my part but I felt that I should 16 at least bring that to the attention of the people 17 that my colleagues and I work with. 18 Q. And you believed that you had not alerted 19 these Pydraul users in a special way like you did 20 the Therminol users? 2 1 A. I didn't really know. I pointed out three 22 differences, and what I was trying to find out was, 23 okay, was there reasons why that was done? And 24 since I was new in the job I didn't know, or had 25 they done it in some other way and I didn't 116 WATER PCB-SD0000052825 1 understand, but in the event that they hadn't, then 2 I proposed some solution or I made a 3 recommendation. But, again, this was all my 4 personal attempts to understand and sort out what 5 was fact and what wasn't. . 6 Q. Now, you attached to this memoranda a draft 7 of a letter you were proposing in July 1972 to send 8 to certain Pydraul customers, did you not? 9 A. Let me look over -- 10 Q. You're not going to find it there, I can 11 tell you now. 12 A. No? Really? Okay. 13 Q. But the last paragraph on the front page 14 refers to an attached letter, and I'm asking you: 15 Did you attach a draft of the letter to this 16 memorandum when you sent it? 17 A. What, 30 years later, it's hard for me to 18 say, but I would -- you know, I would have to say 19 the odds are I did accept it or people said. Are you 20 going senile prematurely? Where is this 21 attachment? 22 Q. I'm sure you did send it. I'm not accusing 23 you of being senile 20 years ago, or today, but let 24 me ask you to stretch your recollection as best you 25 can. We do not have a copy of that draft of the 117 WATER PCB-SD0000052826 1 letter. I want you to try to recall from the 2 context of this memorandum and your recollection, to 3 the best of your recollection what would that letter 4 have said? 5 A. It would be impossible for me now to 6 speculate what was in the letter. Until you show 7 showed me this today I had even forgotten the 8 existence of even this memo, but I think the odds 9 are I did attach something, but what did it say, I 10 don't know. 11 Q. Would it be a fair statement, considering 12 the context of this memorandum, that your attached 13 letter would have advised Pydraul customers of the 14 need to flush out their systems? 15 MR. CHAMBERS: Object to the form of the 16 question. He's already told you he can't recall 17 anything about this, the attached draft that's 18 referred to here. He said it's been -- he's 19 answered it. 20 A. Yeah, I would have said to you, even 21 without Mr. Chambers saying anything, that it would 2 2 be totally wrong for me to sit here and speculate. 23 I would need to see the thing in front of me to see 24 what it said. 25 MR. BAKER: I would be thrilled to see it 118 WATER PCB-SD0000052827 1 myself. Do you know if there is a copy? 2 MR. CHAMBERS: We can go through the antics 3 on the record but my preference would be that you 4 add it, you go ahead and add it to your list, and 5 we'll certainly go back and see what we can do about 6 that. On the other hand, you know, if we're going 7 to go through the dance on the record, we can do 8 that too. I don't think that would be - 9 MR. BAKER: I'm not here to dance. 10 Q. (By Mr. Baker) Dr. Paton, you testified 11 that this did lead to meetings and discussions with 12 some of these people to whom you sent the memoranda, 13 did you not? Or let me rephrase the question. 14 Did it lead to meetings and 15 discussions? 16 A. I cannot recall that it did, but, again, I 17 can't recall that it didn't. 18 Q. Can you recall that it did not lead to the 19 sending of another letter to customers? 20 A. I cannot recall whether it did or didn't. 21 Q. But your purpose in sending this to 22 Mr. Davidson, Mr. Papageorge and the others was to 23 cause internal discussions as to whether another 24 letter should be sent, was it not? 25 A. Yes, it was, partly, and whether or not 119 WATER PCB-SD0000052828 1 what I was looking at as potential problems, did 2 they share that concern or did they have -- well, 3 gee, we've been working on this for several years 4 and here's all the other things we've done and I 5 just said, okay, well, with that, forget about it. 6 No need to send a letter. I cannot remember that. 7 Q. And you don't remember whether you said 8 forget about it? 9 A. I don't remember that. 10 Q. Do you remember what any of these persons 11 said in response to this memorandum? 12 A. I honestly don't. 13 Q. I believe we've already identified 14 Mr. Davidson, Mr. Bergen, Mr. Papageorge and 15 Mr. Johnson, and you may have mentioned Gossage and 16 Stapleton, I don't recall, but can you tell us who 17 Mr. Gossage and Mr. Stapleton were? 18 A. I reported to Mr. Gossage. He was a 19 Director of Marketing. Mr. Stapleton was in our Law 20 Department. 2 1 Q. And then you sent a copy to Paul Gann, who 22 worked under you I believe? 23 A. Yes, that's right. 24 Q. Do you know if Mr. Gann is still living? 25 A. I honestly don't know. He went back to the 120 WATER PCB-SD0000052829 1 Pensacola area but I don't know if he's still 2 living. 3 Q. If you will begin at the bottom of the 4 first page of this. After you've suggested that *. 5 Mr. Gann should handle the mechanics of this 6 mailing, you say, "Also, he," I assume Mr. Gann, 7 "should enlist field sales to identify (after the 8 initial mailing) any customers we may have missed." 9 Was there a concern on your part at 10 that time that your customer list may not be 11 entirely complete? 12 A. It's hard for me, looking back over this 13 period of time, to say, because you can have 14 situations where customers in these areas might not 15 buy from you for a year or two and so you really 16 don't know, and so it's a check. I wouldn't read 17 into that that I was really very concerned about 18 that but it was just being one extra step, if you 19 will. 20 Q. And customers who hadn't bought in a year 21 or two or three, you certainly recognize there would 22 be a risk that they might not be included on your 23 mailing list? 24 A. Possibly, and I don't know what you do 25 about that. 121 WATER PCB-SD0000052830 1 Q. You've attached a list here that begins on 2 the third page, says, "Suspect Pydraul Applications 3 - From IBM Run" and this is a two-page list that 4 has several customers listed there. And then at the 5 end of that says, "Total Pydraul customers: 6 Approximately 1,000." 7 A. Uh-huh. ' 8 Q. Now, tell us what IBM run you were 9 referring to to determine these suspect Pydraul 10 applications. 11 A. . Well, as I recall back in those days every 12 Product Manager Department got a weekly IBM run that 13 said here's sales, and then after the closing every 14 month another run would come forth and would say 15 here's the sales statistics for past month 16 year-to-date, maybe a comparison with the previous 17 year and so on, and, obviously, early January you've 18 seen a history of the previous 12 months and 19 probably would, in that one report, actually cover a 20 two-year spell because I think, you know, again, 21 don't hold me to this, but I think it probably did a 22 comparison of 1972, '73 to '72 sort of thing. So 23 that would have been where we would have gone to get 24 the most recent, and I cannot remember whether we 25 went further back than that or not. 122 WATER PCB-SD0000052831 1 We then, further, since my concern was 2 really not the whole gamut of hydraulic fluid 3 applications, I was thinking of the ones that had 4 really given the most publicity, the most concern, 5 had been in the heat transfer and was in the fish 6 meal applications. In a chemical processing plant a 7 Therminol was really not that much of a problem than 8 any other chemical but when you come into food -- so 9 here was, as we went through it, out of a thousand 10 customers there was about 14 in air compressor 11 applications and 14 in other miscellaneous hydraulic 12 fluid applications that apparently we suspected, 13 really, more from the names of the customers, that 14 they were in the food-related type of industry. 15 Q. You referred to the fish meal incident. 16 A. Yes. 17 Q. I know we've been here a long time. I 18 don't want to unnecessarily waste anyone's time, but 19 briefly tell me what you are referring to there. 20 A. I would have been referring to the one I 21 think sometime in the early part of 1971 which I 22 think was a fish meal incident somewhere in the 23 Carolinas, and by then I think I may have had, but 24 I'm not sure, you mentioned -- alluded to the 25 publicity given to the rice oil in Japan, but 123 WATER PCB-SD0000052832 1 Monsanto did not supply any fluid to that -- I think 2 that the possibly that the heat transfer fluid in 3 the Carolinas came from Monsanto but the Japanese 4 one didn't, but they were both incidents that got a 5 great deal of publicity. 6 Q. At this time you were considering or 7 recommending that these other persons consider 8 sending an additional letter to Pydraul customers? 9 A. And it was to this list, the food-related 10 lis t. 11 Q. That was only to the ones you identified as 12 food-related Pydraul customers. Why were you not 13 considering sending such a letter to all Pydraul 14 customers who may still have PCB's in their system 15 at this time? 16 A. Because, again, as I recollect, around this 17 time, in among the various federal -- what is it? 18 What is the correct terminology for that federal 19 register that comes out, I think -- I can't recall 20 if there was EPA or the FDA or both, maybe in this 21 case it might have been the FDA, came out with, you 22 know, sort of guidelines, recommendations. I say 23 they never banned the product, but I suspect -- not 24 suspect, I recollect something that said that they 25 were trying their best to make sure that there was 124 WATER PCB-SD0000052833 1 no repetition, obviously, of this fish meal incident 2 and they had come up with some kind of guidelines as 3 to the maximal permissible amount of contaminant, et 4 cetera, and maybe even -- and I can't remember if it 5 was in the system per se or it was m the final 6 food, and that I know was going around. 7 Now whether they all converged about 8 this time and led to this, you know, that's a 9 possibility, but I would have to -- I need the whole 10 God knows how long I need to sit down and review 11 the thing just to refresh my memory on it all. 12 Q. In addition to the draft letter that is not 13 attached here today that you referred to in your 14 memorandum, you also attached, according to the 15 memorandum, four letters sent out to Pydraul 16 customers. You've referred in this memorandum to 17 three particular ones; one, February 1st 1971, one 18 of April 15, 1971, and one of February 28, 1972. 19 Attached to this exhibit, this is a form that was 20 produced to us by Monsanto and is a copy of the 21 February 1, 1971, letter and the April 15 1971 22 letter. 23 Ask you first; Do you recall anything 24 about the February 28, 1972, letter which I believe 25 we have elsewhere in the production that said no 125 WATER PCB-SD0000052834 1 draining is necessary, you need to only add new 2 products as makeup to your present system? Do you 3 recall that letter? 4 A. You mean we've looked at it today? 1 ^ 5 Q. No, we have not to my recollection. I 6 think we've been -- I believe we've been provided a 7 copy of it and I don't have it with us in this room 8 today. Just asking you if you recall anything about 9 that letter. 10 A. I couldn't have recalled without this. 11 Q. But from this, you stated at that time, 12 that February 28, 1972, letter sent to Pydraul 13 customers did indicate that there's no draining 14 necessary? 15 A. I have no reason to believe that it didn't, 16 given what I've written down here. 17 Q. You refer in this memoranda to a fourth 18 letter sent out in 1971 or 1972. It is not 19 specifically mentioned, the date of that, or any of 20 the contents are not specifically mentioned in the 21 memorandum. 22 Do you have any idea what the fourth 23 letter was? 24 A. No, and that must have been just a mistake 25 on my part saying four when I really meant three, I 126 WATER PCB-SD0000052835 1 don't know. 2 Q. Just so it's clear, do you know whether any 3 letter was sent to any Pydraul customers as 4 recommended in your memorandum of July 17, 1972? 5 A. I can't remember. 6 Q. Do you recall anydiscussions concerning 7 whether such a letter should be sent? 8 A. I can't remember. 9 Q. Do you recall which customers raised 10 complaints to you or to anyone else at Monsanto who 11 mentioned them to you concerning the lack of 12 adequate notice concerning draining the systems? 13 A. I seem to recall one in Louisiana somewhere 14 but I cannot remember the specific -- the names of 15 others. I know that there was general unhappiness, 16 which is often on the 'phone. Then I would be asked 17 by the salesmen, by customers, to come visit them, 18 and in some cases I would meet with management who 19 claimed they would have been the proper people to 20 tell and they didn't and all of that sort of thing. 21 Q. There was general unhappiness from the 22 customers who were told to drain their systems and 23 completely replace the PCB product; is that correct? 24 MR. CHAMBERS: Let me just object to form 25 for purposes of clarification. We're talking about 127 WATER PCB-SD0000052836 1 the Therminol FR products I take it as opposed to 2 the full -3 Q. (By Mr. Baker) What he said. I'll ask you 4 that. 5 A. My remarks up to this point have been with 6 regard to Therminol FR. 7 Q. Yes, and there was a general 8 dissatisfaction among those Therminol customers who 9 were told to drain their systems; is that correct? 10 A. Yes. 11 Q. And complaint by them about having to drain 12 the systems; is that correct? 13 A. Yes. 14 Q. And even in some cases assertions by them 15 that Monsanto should pay the cost or attempts to pin 16 the cost on Monsanto for draining the system; is 17 that correct? 18 A. Yes. 19 Q. Would any of those facts have played a role 20 in Monsanto's decision not to advise Pydraul 21 customers to drain their systems? 22 A. I don't know. 23 Q. Show you a document marked Plaintiff's 24 Exhibit 9. Ask you to review that, please. 25 A. Yes. 128 WATER PCB-SD0000052837 1 Q. Do you recall this situation? 2 A. No. 3 Q. This appears to be a letter from 4 Mr. Papageorge to Mr. Anderson at Honeywell, - 5 Incorporated in Minnesota. It shows that a copy was 6 sent to you I believe, does it not? 7 A. Yes. ' 8 Q. And it refers in the opening sentence to 9 you, does it not? 10 A. Yes. 11 Q. In that opening sentence Mr. Papageorge 12 appears to be responding to Mr. Anderson's inquiry 13 of you concerning a disposal of used Pydraul 312. 14 Do you recall Mr. Anderson or anyone 15 else from Honeywell asking you such a question? 16 A. I don't recall. 17 Q. Do you recall in general other companies 18 inquiring of you as to disposal of Pydraul? 19 A. I can't recall now. That's not to say 20 there weren't. 21 Q. At the end of the first page of this letter 22 Mr. Papageorge stated to Mr. Anderson, "You may wish 23 to consider sending your materials to Monsanto for 24 disposal. The cost of disposal is five cents per 25 pounds received. This does not include cost of 129 WATER PCB-SD0000052838 1 freight or the cost of the containers which are paid 2 for by the shipper." 3 Do you know whether that was 4 consistent with Monsanto policy at that time 5 concerning disposal of used Pydraul? 6 A. I would think it probably would but I can't 7 say for sure. 8 Q. Do you remember being involved in any 9 question concerning disposal of used Pydraul? 10 A. I cannot recall specifics now but it's part 11 of my supervision of Mr. Davidson and the others in 12 the group, it's likely that I would from time to 13 time have been involved in it but I can't recall any 14 instances today. 15 Q. You don't recall any specific instances? 16 A. No. 17 Q. I will show you a document marked 18 Plaintiff's Exhibit 2, and this is the only 19 additional copy I have, so I ask you if you could 20 share that with your counsel. Ask you to please 21 review this. 22 A. Yes. 23 Q. Dr. Paton, did you author this memorandum? 24 A. I'm sure I did. 25 Q. In the second paragraph you refer to a 130 WATER PCB-SD0000052839 1 March 1972 survey letter. What is that? 2 A. I guess that's this attachment here? No, I 3 can't recall what that was. 4 Q. On the second page, the middle paragraph 5 there, I want to ask you if this was a true 6 statement. I'm reading from the middle paragraph. 7 "We never really sent out as many 8 letters on PCB's to all Pydraul customers as we did 9 on heat transfer." 10 Is that a statement that you believe 11 to be true? 12 A. I would have believed it to be true. On 13 the other hand, I don't think you can infer from 14 that that because we didn't send out as many, that 15 we didn't send out pertinent information. As I 16 recall, we discontinued selling of PCB-containing 17 Pydrauls earlier than heat transfer, so, in effect, 18 that says we had done that phase of it earlier, so 19 you wouldn't maybe have had to send as many. 20 Q. This was July 30th 1973, and according to 21 Mr. Papageorge's testimony, it was about three years 22 after you stopped selling Pydraul with PCB's. 23 Why -- 24 MR. CHAMBERS: Never mind. I started to 25 object to the characterization of the three-year 131 WATER PCB-SD0000052840 1 time frame but I would concur that the testimony has 2 been that during the '70-'71 time period the 3 transition from PCB to PCT Pydrauls took place. 4 Q. (By Mr. Baker) I believe Mr. Papageorge 5 testified that about mid 1970 you ceased 6 manufacturing Pydraul PCB's. In any event, this was 7 at least two years and perhaps three years from the 8 time that Mr. Papageorge testified you ceased 9 manufacturing Pydraul PCB's. 10 Why did you feel a necessity to send a 11 letter at this time to Pydraul users concerning 12 PCB's? 13 A. I think, as it says there, we thought it 14 was a kind of a service to do. We were still 15 selling Pydraul and we felt that it might be useful 16 information for our customers to have that. 17 Finally, the FDA had got around to 18 promulgating some regulations and we were just kind 19 of bringing it to their attention as a piece of 20 information that they might find useful. 21 Q. You stated in this letter, "We realize that 22 this letter may reopen old wounds." 23 Can you tell me what you refer to 24 there? 25 A. Yes, sir, in that they had gone through one 132 WATER PCB-SD0000052841 1 or two reformulations. Clearly, again, they have 2 been inconvenienced, so here's a purchasing agent 3 you're trying to sell your new chlorinated -- oh, my 4 Godi Here's the guys that gave me all that hassle 5 and grief two years ago, so on one hand you think 6 you're trying to be kind and offer a service and in 7 another way you may remind him of the problems he 8 had with his plant manager saying, My God, you going 9 to change it one more time? You know how these 10 things are. Salesmen don't usually like to get in 11 and get chastised for having created problems in the 12 past, real or imagined. So this, again, was trying 13 to get our people to understand why we were doing 14 this. 15 Q. You attached three drafts of letters. Do 16 you know whether one of those was selected to send 17 to customers or whether some customers received one 18 of them and others received other letters? 19 A. At this point in time I don't understand 20 why -- in fact -- well, one seems to be fairly 21 self-evident. One seems to be of the incineration 22 service I guess; is that right? Is that one of the 23 three? Let me see here. No, that was an additional 24 one. Bill Maddox was one in addition, so leave that 25 aside. 133 WATER PCB-SD0000052842 1 So I have one dated August the 3rd, 2 one dated August the 3rd -- I was looking to see, is 3 there any difference between two six four and two 4 six five. I have not gone through it word for 5 word. It looks rather similar to me, but let's 6 see. Two of them seem to be FR-related, right? 7 Q. Yes. ' 8 A. But they look very similar, don't they? 9 Two six four and two six five looks the same. It's 10 hard to - 11 MR. CHAMBERS: They don't quite match up 12 that way. 13 MR. BAKER: I believe the wording is the 14 same, just different type, but - 15 MR. CHAMBERS: The spacing on the lines is 16 different but I don't know that the contents -- 17 Q. (By Mr. Baker) Okay, I can tell you. The 18 first one to Therminol customers says, "We have 19 received your response." 20 A. And the other says, "We have received no 21 response," that's right. 22 Q. So that you have one letter designed for 23 Pydraul customers and you have two letters designed 24 for Therminol customers? 25 A. Subdivided by who responded and who didn't. 134 WATER PCB-SD0000052843 1 Q. Now, I notice in the one designed for 2 Pydraul customers you don't have the opening 3 statement about requesting confirmation about 4 discontinuance of use, which leads me to believe %! 5 that you probably never did ask Pydraul customers to 6 confirm whether they discontinued use. 7 Would you agree with that 8 characterization? 9 A. I really don't know if they did or didn't. 10 Q. You don't recall having done it? 11 A. I don't recall having done it but it might 12 have been done before I got involved, but I cannot 13 remember either way. 14 Q. You said on the first page of this, "It has 15 been decided that we should notify all customers." 16 Do you know what person or persons 17 made that decision? 18 A. Well, I've copied in Papageorge, Stapleton 19 and Gossage and, undoubtedly, they would have been 20 part of my decision-making process group. Whether 21 it went beyond that, I don't know. Clearly, the 22 other people you see here by that time is GFF, which 23 is George Fague. Davidson had left the company and 24 Fague was his replacement. Roger Hatton, who was 25 the technical service in Pydraul. Clearly, they 135 WATER PCB-SD0000052844 1 would have been part of the decision process. Don 2 Roush and R. L. Cook, they were in the heat transfer 3 area at that time. They would have been part of 4 it. And Norm Johnson I think had left the company, ^S. 5 but I would guess that we would have -- just from my 6 style, I would have -- probably the sales managers 7 would have known this was in the works, so this 8 thing wouldn't have come as a surprise to the sales 9 management group. 10 Q. I notice in the Pydraul draft letter you 11 still don't mention anything about flushing the 12 system. You recall whether you had any discussions 13 about whether that should be advised at this point? 14 A. I can't recall that. But, again, I would 15 have -- we would have had Davidson, then Fague and 16 Hatton all intimately involved. Davidson and Hatton 17 having had a long history and involvement with that 18 industry. 19 George Fague, although he had recently 20 become a Market Manager, in fact, had spent previous 21 several years I think selling a lot of Pydraul type 22 fluids in the Michigan area, so he was familiar with 23 the diecasting operations, familiar with Pydraul. 24 They would have done a lot of that communication I 25 think in their own matter. 136 WATER PCB-SD0000052845 1 Q. But you don't know what they told the 2 customers, do you? . 3 A. I really at this point in time can't 4 remember what they said. 5 Q. Do you know what they were instructed \o 6 tell customers about flushing systems? 7 A. And I can't recall what they were either, I 8 can't recall that. 9 Q. Do you recall ever instructing any of them 10 to advise customers that they should flush the 11 system, Pydraul customers? 12 A. I can't recall. 13 Q. Do you recall any decision ever being made 14 by Monsanto to advise Pydraul customers that they 15 should flush their systems? 16 A. I can't. That's not to say that there 17 wasn't a discussion, but I can't recall. 18 Q. Who was responsible for deciding which 19 customers received this August 3, 1973, letter? 20 A. At this 20 years later I can't remember how 21 we went about it. I testified how I thought we 22 would have gone through the procedure, and I guess 23 it would have been somewhat similar. 24 Q. Do you know whether any documentation in 25 the form of copies of mailing labels or of actual 137 WATER PCB-SD0000052846 1 copies of the letters with the address of the 2 accompanying address on those letters, whether that 3 was maintained by Monsanto? 4 A. I can't recall specifically. I'm pretty 5 certain that once the mailing was done, that's the 6 set of copies of each letter. Mailing lists were 7 available. Where they went, I can't recall. 8 Q. You mentioned earlier IBM runs. Do you 9 know if Monsanto had, in 1973, a computer system 10 where you could generate either lists of addresses 11 or mailing labels? 12 A. I don't think we had a computer-generated 13 one. I seem to recall secretaries busily typing 14 them. I seem to recall that. 15 MR. BAKER: I will ask at this point, and 16 we requested it during Mr. Papageorge's deposition I 17 believe and perhaps in Mr. Craddock's deposition, if 18 there are any documents of any kind that would show 19 the addressees of any of these letters that Monsanto 20 contends were sent to Pydraul customers, we ask that 21 they be produced as soon as possible. 22 MR. CHAMBERS: And I will say my response 23 is the same as whatever Greg Monge's was at those 24 previous depositions. 25 MR. BAKER: I believe I can paraphrase his 138 WATER PCB-SD0000052847 1 testimony as agreeing to do it, if there are any. 2 MR. BEAL: That's about what he said. 3 Q. (By Mr. Baker) I'm going to show you a 4 document labeled Plaintiff's Exhibit 15. This is 5 something that has been -- copies have been attached 6 to the testimony of many witnesses. I'm not going 7 to ask that we attach my last copy to this 8 deposition, but this is a document called Pydraul AC 9 Fact Finder, and I believe the only question I have 10 for you other than have you seen this before is: Do 11 you have any idea when this was published? 12 MR. CHAMBERS: Object to the form? two 13 questions, compound question. 14 MR. BAKER: Review that and then I'll ask 15 you separate questions on it. 16 Let the record reflect that counsel 17 for Monsanto was smiling when he raised that 18 objection. 19 MR. CHAMBERS: I'll stipulate to that. As 20 was counsel for Equitable Resources. 21 A. Okay. 22 Q. (By Mr. Baker) Have you seen this document 23 before? 24 A. I'm sure I have. I can't recall but I'm 25 certain I have. 139 WATER PCB-SD0000052848 1 Q. Can you give us any indication as to when 2 this document was published? . 3 A. I can't recall. Unless there's anything in 4 here that might give clues, I'd have no way of 5 beginning to guess. 6 MR. BAKER: That's satisfactory. We have a 7 couple of clues from in there. We know it wasn't 8 published before a certain date but that's all we 9 know so far. 10 (Discussion off the record.) 11 Q. (By Mr. Baker) Dr. Paton, while you were 12 working with Monsanto were hydraulic fluids 13 profitable for the company? 14 A. As far as I remember, I think they were. 15 Q. Can you give us some idea of how profitable 16 they were? 17 A. No, and I'm sure that varied somewhat. 18 Q. Do you know roughly what percentage of 19 Monsanto's profits came from hydraulic fluids in the 20 last half of the 1960's? 21 A. No. 22 Q. Would you know for the first half of the 23 1970 's? 24 A. No, and it's just because -- I probably 25 would have known but I've just forgotten. 140 WATER PCB-SD0000052849 1 Q. Do you know anything about the levels of 2 production of PCB's by Monsanto during the 1960 's? 3 A. I think that was probably in one of the 4 documents we looked at today. I think in the 5 presentation I made to the task force, 6 intergovernment task force, there were numbers 7 there. I can't recall if they just dealt with 8 dielectric only, but I suspect they probably covered 9 the whole range. 10 Certainly in the late '60's, as we 11 started discontinuing, and in the '70's they 12 declined rather rapidly, so, therefore, as the 13 volume went down, clearly, the costs went up. 14 Q. Do you recall when the volume started to go 15 down of PCB production by Monsanto? 16 A. They would have -- if you know or can 17 pinpoint the dates at which we discontinued some 18 plasticizer applications, the PCB-containing 19 Pydrauls, then I think the carbon paper applications 20 got discontinued somewhere along the line. Then we 21 got to the end of '71 and we got out of PCB's. 22 These would be the milestones that I could think of. 23 Q. Do you recall any PCB products that were 24 discontinued by Monsanto between 1966 and the 25 beginning of 1970? 141 WATER PCB-SD0000052850 1 A. I thought that when -- oh, '66 and '70. 2 Q. The end of 1969. 3 A. End of 1969. I'm a bit fuzzy in that area 4 because that's about the time I began thinking of "s. _ 5 transferring to the other job, so I can't recall if 6 I had actually done anything at the end of '69 or 7 getting ready to do something. * 8 Q. Do you know whether PCB production at 9 Monsanto increased or decreased between 1966 and the 10 end of 1969? 11 A. That would be sheer speculation on my part. 12 Q. Do you know where Norm Johnson went after 13 he left Monsanto? 14 A. I recall somebody saying he had gone to the 15 Chicago area, but that's all I know. 16 Q. Do you have any idea what kind of job he 17 took then? 18 A. No. 19 Q. Do you know what reasons he gave for 20 leaving Monsanto? 21 A. No. 22 Q. Do you know why he left Monsanto? 23 A. No. 24 MR. BAKER: We move at this time 25 introduction of Plaintiff's Exhibits 2, 67, 100, 102 14 2 WATER PCB-SD0000052851 1 and 104. 2 MR. CHAMBERS: And we have no objection to 3 Plaintiff's Exhibit 2 and 67. 4 We object to Plaintiff's Exhibit 100 5 on the grounds that it deals with Therminol FR heat 6 transfer products, which was a much different 7 application in a different situation than the 8 Pydraul AC product and that, thus, this exhibit 9 isn't relevant to the issues in this case. 10 We also object to Plaintiff's Exhibit 11 102 which, again, deals with the Therminol FR 12 product and not a Pydraul AC product or any 13 PCB-containing Pydraul product and, thus, our 14 position is that this exhibit also is not relevant 15 to the issues in this case. 16 Finally, we also object to Plaintiff's 17 Exhibit 104, which deals with a Pyranol as opposed 18 to a Pydraul product, Pyranol being a dielectric 19 product for a far different application than 20 Pydraul. 21 It would be our position that 22 Plaintiff's Exhibit 104 is also not relevant to the 23 issues in this case. And with respect to all three 24 exhibits, to the extent there's probative value we 25 would contend it's outweighed by other 143 WATER PCB-SD0000052852 1 considerations 2 MR. BAKER: We have no further questions of 3 this witness at this time. 4 MR. CHAMBERS: I have just a few questions 5 I'd like to ask you fairly quickly here, Dr. Paton. 6 CROSS EXAMINATION 7 BY MR. CHAMBERS: ' 8 Q. We spent a fair amount of time looking at 9 Plaintiff's Exhibit 58, which is the PCB/PCT Action 10 Plan from February of 1972. 11 Let me ask you, before the time - 12 well, this was the plan, was it not, that provided 13 for the draining and flushing of the PCB Therminol 14 FR heat transfer systems? 15 A. Yes. 16 Q. Had there been sales of PCB Therminol heat 17 transfer fluids for the top-up of other heat 18 transfer systems containing Therminol FR products 19 before the PCB/PCT Action Plan was implemented in 20 February of 1972? 21 A. Yes, I think, as I recall, and this policy 22 might have been put in place just before I took over 23 in heat transfer fluids following this fish meal 24 incident and that may not be the exact timing, but I 25 recall that there were directives given that there 144 WATER PCB-SD0000052853 1 would be no new fills of PCB-containing Therminols 2 and there would be no makeup or top-up sold for 3 food-related applications, to the extent we could 4 determine they were food-related applications. 5 Top-up would be continued I think in 6 other areas and it was really then later towards the 7 end of '71 that we decided we would stop everything. 8 Q. Did the fish meal incident that you've 9 referred to earlier today lead to litigation and a 10 lawsuit? 11 A. I can't remember that. 12 Q. Are you aware of any litigation that was 13 brought by a Pydraul customer during the period that 14 we've talked about here today, the '68 to '76, '79 15 time frame while you were at Monsanto? 16 A. You're talking specifically in the '68 to 17 '70 -- 18 Q. Let me preface that and get you to focus 19 during the period of time that you have dealt with 20 the PCB products. Are you aware of any occasion 21 where a Pydraul customer sued Monsanto? 22 A. I can't recall that. 23 Q. At the time that this PCB/PCT Action Plan 24 was being implemented, the plan that's described in 25 Plaintiff's Exhibit 58, were there still PCB's in 145 WATER PCB-SD0000052854 1 the Pydraul fluids that Monsanto was selling? 2 A. To the best of my knowledge, no. 3 Q. And at the time that this plan was being 4 put together and presented and proposed -- and by 5 "this plan" I mean the PCB/PCT Action Plan -- had 6 Monsanto's experience with the PCB heat transfer 7 fluids been the same as its experience with its 8 customers who used the PCB hydraulic fluids? 9 A. I think that from what I can recall of 10 conversations with my colleagues in the Pydraul area 11 that the -- and this, again, is just my recollection 12 of conversations with them, that it seemed as if the 13 transition in the Pydraul area had been less 14 troublesome in the majority of cases because they 15 were still remaining on a fire-resistant fluid. 16 There was less objection, et cetera. 17 In the case of the heat transfer, it 18 was because of the finality as far as the fact that 19 they had to go from a fire-resistant to a 20 non-fire-resistant, so I sensed that there was more 21 adverse customer reaction, more complaining in the 22 Therminol area than in the Pydraul area. 23 MR. CHAMBERS: I don't have anything 24 further. 25 MR. BAKER: Just one more question in 146 WATER PCB-SD0000052855 1 conclusion. 2 REDIRECT EXAMINATION 3 BY MR. BAKER: 4 Q. Did you also sense more of the complaining 5 and dissatisfaction in the Therminol area because 6 you were advising those customers to flush out their 7 entire system and totally replace the fluid rather 8 than top it off? 9 A. No, it was the fact that whatever way they 10 went they were going to at some point be faced with 11 the lack of a fire-resistant fluid. We said the FR, 12 the fire-resistant fluid, will not be available any 13 more. That was the real concern. 14 MR. BAKER: I have nothing further. 15 16 17 SIGNATURE OF WITNESS 18 19 Cumming Paton 20 Subscribed and sworn before me this 21 day of, 1992 . 22 23 Notary Public 24 25 My Commission Expires: 147 WATER PCB-SD0000052856 1 STATE OF MISSOURI 2 CITY OF ST. LOUIS 3 ) SS ) 4 I, Richard L. Saunders, a Notary Public within and for the State of Missouri, do hereby 5 certify that pursuant to agreement between counsel, there came before me at the office of Husch, 6 Edppenberg, Donohue, Cornfeld & Jenkins, 100 North Broadway, St. Louis, Missouri, 7 CUMMING PATON 8 a witness of lawful age, who was by me first duly 9 sworn to testify to the whole truth touching and concerning the matters in controversy therein; that 10 the witness was examined, and said examination was reduced to machine shorthand by me on that day, 11 between the hours, at the place, and in that behalf first aforesaid, and later transcribed into 12 computer-assisted transcription under my supervision; that the deposition is a true...record of 13 the testimony given by the witness, and now is herewith returned. 14 I further certify that I am neither 15 attorney, nor counsel for, nor related to, nor employed by any of the parties to the action in 16 which this deposition is taken; and, further, that I am not a relative or employee of any attorney or 17 counsel employed by the parties hereto or financially interested in the action. 18 IN WITNESS WHEREOF, I have hereunto set my 19 hand and affixed my seal on October 20, 1992. 20 My Commission Expires August 26, 1996. 21 22 23 Notary Public. 24 25 148 WATER PCB-SD0000052857