Document LoX0JzXjk4K93MDaR0G2O4Eaz

STATE OF WISCONSIN : CIRCUIT CO ORT MILWAUKEE COUNTY BRANCH 8 STROH DIE CASTING COMPANY, I Plaintiff, v. VOLUME XXI (a.m.) Case No. 639-887 MONSANTO COMPANY, May 14, 1991 I Defendant. i Honorable Michael J. Barron Circuit Judge Presiding A-P-P-E-A-R-A-N-C-E-S * RIORDAN, DRIVELLO, CARLSON, MEkTKOWSKI, STEEVES by DONALD CARLSON AND JOHN PENDERGAST, appeared on behalf of the Plaintiff. BORGELT, POWELL, PETERSON, FRAUEN by JOSEPH McDEVITT and KIRKLAND AND ELLIS by ANDREW RUNNING appeared on behalf ^of the Defendant. *** I Brown & Jones Reporting, Inc. 312 East Wisconsin Avenue Suite 400 Milwaukee, WI 53202 PHONE (414) 224-9533 I 3495 I I WATER PCB-SD0000075630 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 *22 23 24 25 IN DE X 3496 WITNESS William Papageorge EXAMINATION Cross (Mr. Carlson) Redirect (Mr. Running) Recross (Mr. Carlson) PAGE 3496 3580 3597 WATER PCB-SD0000075631 I 1 2 3 >4 5 6 *7 8 9 10 11 12 ^ 13 14 15 16 17 18 i 19 20 21 * 22 23 24 25 P-R-O-C-E-E-D-I-N-G-S THE COURT: Good morning. Looks like we are ready to resume the cross-examination of Mr. Papageorge. CROSS EXAMINATION (con't) BY MR. CARLSON: Q Good morning. A Good morning. Q Mr. Papageorge, I'd like to ask you acouple of questions about what happens to PCBs at elevated temperatures. Is it true, sir, that temperatures in a range of 600 to 650 degrees centigrade in the presence of oxygen PCBs may form polychlorinated dibenzofurans? A Thatis my understanding undertherightconditions of oxygen amount. Q It is also true, sir, is it not, that PCBs in electrical equipment have been reported to produce chlorinated dioxins and furans during fire situations that the combustion products may result -- I'm sorry. These combustion products may result all or in part from non-PCBs components or the dielectric fluids or other combustible materials? A Yes. The reference to the other materials in there 3497 WATER PCB-SD0000075632  i 2 3 4 Q 5 6 7 A 8 9 10 Q A Q 11 12 13 A 14 15 16 Q 17 18 9 19 20 21 22 23 24 25 A Q A Q in addition to the PCBs. Right. An appropriate way to handle spills or leaks of PCBs would be -- one of the things would be to have nonessential personnel leave the area? Depending on the degree of the spill, the size of the spill, and the area it covered, yes, sir. And the area should be adequately ventilated? Certainly. Personnel entering the spill or leak area should be furnished with appropriate protective equipment? Again, depending on the size, yes. And all wastes and residues containing PCBs; that is, wiping clothes, absorbent material used in disposal, protective gloves, clothing, et cetera, should be collected, placed in proper containers, marked, and disposed in a manner described by appropriate regulations? That is correct. None of the information regarding how to handle spills appropriately as we just discussed is on the 312 label, is it? No. With regards to the letters -- And there's a series 3498 WATER PCB-SD0000075633 i i 2 3 4 5 6 7 A 8 9 *10 Q A 11 12 *13 Q A Q 14 15 16 A Q 17 18 * 19 A Q 20 21 22 23 24 25 A Q of letters that you and Mr. Running and I have been talking about over a number of days. Did I understand correctly that you personally did not gather the mailing labels and the letters that were presented here during the testimony? Help me with the word "gather." At what time and -- When the letters were first gathered for the attorneys' use, did you gather them? No. And did you gather the mailing labels? No. Do you know who did? I do not. Were you here when Mike Stroh testified about correspondence he received from Mr. Craddock? I was not. Mr. Craddock in correspondence to us had indicated that a letter of February 27 of 1970 was sent. Do you know anything about that? I remember a February, 1970, letter. The 27th I don't recall that as relating to Pydrauls. And then at least in the evidence that's in the record from Mr. Stroh and the correspondence from Mr. Craddock, there was an August 27th letter of 3499 WATER PCB-SD0000075634 I >1 2 3 >4 5 6 *7 8 9 1 10 Q 11 12 * 13 14 15 9 16 A 17 18 9 19 Q 20 21 9 22 23 24 9 25 A Q 1970 that you folks I believe discussed in this case. Mr. Craddock said it was not sent or at ieast did not tell us it was sent. Do you know anything about that? MR. RUNNING: I object. The question is compound, saying either it was sent or not mentioned in the letter. THE COURT: It is. MR. CARLSON: It is. Let me ask you this. Do you know what steps Mr. Craddock took in order to write to Mike Stroh telling Mr. Stroh what letters your company sent? Mr. Craddock looked in his immediate personal files for the type of letter that was being sent out at that time, and those copies that he found he forwarded to Mr. Stroh. Was there a binder of letters set up or -- I'm going to show you a copy -- on the bottom of some of these letters there's a page number. For example, you'll see page six referencing a January 31st of '72 letter, and a page five on another one. Do you know what those pages numbers reference? I do not. Do you know how the letters that Mr. Running and you 3500 i WATER PCB-SD0000075635 1 2 3 4 A Q 5 6 7 8 9 l0 A Q 11 12 l3 A 14 15 16 Q A Q 17 18 19 20 21 22 A 23 24 25 discussed in your direct testimony were collected for this litigation? No, I don't. I'd like to switch subjects again for a second if we could. Remember the procedures we discussed with regards to the therminol customers and the telephone calls and procedures that were used to insure that they would drain their machines? I do. Those kinds of procedures could also have been used for your die cast companies customers if your company had so chosen, isn't that true? Certainly. But the different kind of problem -- That's -- That's -- Yes. With regards to some of the large companies like General Motors, your company did have direct personal contact which resulted in the companies draining their die cast machines, isn't that also true? The personal contact existed for all customers. The draining as it related to the example you gave was a decision of that management. I don't know that the contact with Monsanto was the key reason for that decision. 3501 WATER PCB-SD0000075636 2 3 4 A Q 5 6 7 A 8 9 10 11 12 l3 Q A Q 14 A 15 16 Q 17 A 18 19 Q 20 A 21 22 Q A 23 Q 24 25 It certainly played a role in that decision, didn't it? We offered alternative materials, yes, sir. And you explained to General Motors the problems with the 312 hydraulic fluid having some of the 5 chlorinated PCBs in it, isn't that also true? That's part of the dialogue, yes. I didn't check. I'm hopeful that the material that is on your right that was there yesterday is still there. And with any luck at all is Exhibit 461 is at the top? 461? Yes. It's the third one down. I found it. I think you can safely take the other two off the top and set them aside for the time being. All right. You'll recognize this as a -- I'm sorry. You'll recognize this a February 6th, 1970, memorandum? That's what it is. And it references the pollution letter? That's the title of this memorandum. And if we go to the bottom -- Strike that. MR. CARLSON: I would offer Exhibit 461 into evidence, Your Honor. It's one of the 3502 WATER PCB-SD0000075637  11 12 13 A 14 15 16 Q A 17 18 19 20 21 * 22 23 24 25 Q A documents produced by Monsanto. MR. RUNNING: No objection. THE COURT: So received. (Exhibit No. 461, previously marked for identification, was received into evidence.) MR. CARLSON: If you look to the bottom of that particular letter on the last paragraph -- I think what I'd like to do is direct your attention about a quarter of the way down the paragraph to the right-hand side beginning with the word "we." It continues, "We realize." Do you see where I'm referencing? I do believe I do, yes. Would you be kind enough to read that for us? "We realize that most of your contacts will not receive the letter. This is both good and bad. Unfortunately, we have no alternative. A complete list will be retained of all companies receiving the letter. And should you decide you want to send this letter to certain specific people, you must send us a list of names. We would prefer you not send additional copies. One is enough." Now, this is a memorandum that was going to what group of people? Since I haven't seen this letter before, let me read 3503 WATER PCB-SD0000075638 I 1 2 3 4 5 6 *7 8 9 * 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it a bit. I'm sorry. Sure. ' MR. RUNNING: Just for clarification, I think we should read the first sentence of the second paragraph, "Attached is a copy of our letter on Aroclors and PCBs which will be sent to all therminol and industrial Aroclor customers." This isn't related to Pydrauls. MR. CARLSON: I don't have any problem with that. That's -- Now he's read it to the jury. THE COURT: Do we have a question out or not? MR. CARLSON: No. He wanted to look at the letter. THE WITNESS: I've scanned it. MR. CARLSON: Mr. Running makes a point. I suppose we ought to discuss that. This particular memorandum has to do with a letter that was apparently developed for the therminol and industrial Aroclor customers? It does. And with regards to the information conveyed, it was found that Monsanto -- that the telephone calls were necessary to the customers in order to motivate 3504 WATER PCB-SD0000075639 1 2 3 4 A 5 6 7 8 9 10 11 12 13 14 15 16 A Q A 17 18 19 20 21 22 23 24 25 them to action because your company recognized that the letter itself may not reach the contacts that you wanted them to have? Well, that's what the author of this document believed; and he was passing it onto his team of salesmen. And then your company did follow up and use the telephone calls to those customers to make sure that they did receive the appropriate information? They did. Do you have Exhibit 533 to your right? I do. MR. CARLSON: Your Honor, Exhibit 533 is a Monsanto -- a copy of a Monsanto supplemental discovery responses made in agreement with the plaintiffs. That's us. THE COURT: Interrogatory number or -- MR. CARLSON: Interrogatory, that's correct. THE COURT: The jury may recall a few weeks ago I mentioned there are a number of discovery devices that are utilized by attorneys in civil litigation. They take many forms. The one you heard most frequently here is depositions. 3505 WATER PCB-SD0000075640 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 * 22 23 24 25 But another one is interrogatories, and that is where written questions are sent out and then the other side -- whoever they are directed to, and they can only be done with parties, not witnesses -- will answer those questions in writing under oath. Attorneys or parties I should say also have a duty under the rules of civil litigation to what's known as seasonably amend any responses which the answer -- or believes needs amplification or change based on the original answer. I think what we are talking about now is an additional answer to some interrogatory. Is that correct? MR. CARLSON: That's right. It was an agreement worked out between us, and they gave us some additional information. THE COURT: Okay. Just so the jury knows what this is all about. MR. CARLSON: Mr. Papageorge, if we look at the first question from your first set of interrogatories, it asks, "Please give the name -- I'm sorry. "Please give the trade name of each product either manufactured, formulated, or sold by the defendant Monsanto Company between the years 1955 and 1970 which 3506 WATER PCB-SD0000075641  1 2 3 4 5 6 7 A Q 8 9 lO A 11 12 l3 Q A Q 14 15 16 17 18 l9 A Q 20 21 22 A 23 24 25 Q A contained as an intentional component polychlorinated biphenyls." The response was, "See Schedule A." Do you see that? I do. And then following that is, "For each product listed in response to the preceding question, please state the date the defendant last sold such products." Do you see that? I do. In reference to Exhibit A again? It does. . Would you be kind enough to turn to schedule A, page two. And about a third of the way down, would you be kind enough to look at the listing for the Pydraul 312 and tell us the month and year it was last sold? Pydraul 312, July 1974. Thank you. That's all we have on that. Thank you. Would you be kind enough to turn to the next exhibit to your right hopefully 666? I have it. And Exhibit 666 is a portion of a memorandum with a handwritten date at the top of May 22, 1969? That's what it shows. 3507 WATER PCB-SD0000075642  *1 2 3 4 5 6 7 8 9 i 10 11 12 13 14 15 16 17 18 1 19 20 21 *22 23 24 25 Q A Q A Q A Q A Q MR. McDEVITT: Don, what is this? MR. CARLSON: Oh, I'm sorry. Your Honor, we would offer Exhibit 666 into evidence as one of the documents produced my Monsanto. MR. RUNNING: No objection. THE COURT: So received. (Exhibit No. 666, previously marked for identification, was received into evidence.) MR. CARLSON: On the bottom of this memorandum there's a resolved section, is there not? Yes. Would you read that for us? "Resolve, that the expenditures of $1,100,000 for the expansion of the solid Aroclor facilities at the Anniston, Alabama, plant is hereby approved." And was that work done? Yes, sir. In the middle of the upper paragraph there's reference to the expansion. Do you see what I'm making reference to? I believe I do. "This expansion will enable the company to supply into the mid-1970's all forecasted U.S. chlorinated polyphenyl needs and also to provide a significant 3508 WATER PCB-SD0000075643 I *1 2 3 4 A Q 5 6 *7 A Q 8 9 10 A 11 12 13 Q 14 15 16 A 17 18 19 Q A 20 21 22 23 24 25 share of the ex-USA demands." That's what it states. Did your company then manufacture more PCBs when that expansion was completed? No, sir. This refers to terphenyls. Polyphenyls is the terphenyls. With regards to the terphenyls, that was a product that your company discontinued manufacturing in 1972? I don't recall the date when they discontinued the terphenyl manufacture. The terphenyls were the products that were used as the stopgap measure while you worked on the phosphate ester that could be put on top of the PCBs? Yes, sir. Would you be kind enough -- I think you can go over 667 and go down two more down to 705. I have it. MR. CARLSON: And Exhibit 705 our records would indicate, Your Honor, has been received in evidence. THE COURT: Is that a Monsanto document? MR. CARLSON: Pardon me? 3509 WATER PCB-SD0000075644 1 2 3 94 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Is it a Monsanto document? MR. CARLSON: Yes. THE COURT: It's received now if it wasn't received earlier. (Exhibit No. 705, previously marked for identification, was received into evidence.) MR. CARLSON: Would you be kind enough to turn to page two of the document -- First of all, this is a letter to Mr. Jenkins of Sprague Electric from July 8th, 1970? It is. And under the section for Disposal, do you see approximately a third of the way down -- Well, would you just read the disposal section from, "The preferred method," down through where it references furans and dioxins. "The preferred method for disposal is high temperature incineration. I suspect there are several commercial burners on the market which will perform well. I personally witnessed burning tests at the John Zink Company's unit in Tulsa, Oklahoma. "Temperatures must exceed 1,600 degrees F to assure that complete destruction is achieved. Lower temperatures would only vaporize the Aroclors 3510 WATER PCB-SD0000075645  >1 2 3 >4 5 6 7 8 9 10 11 12 * 13 14 15 16 17 18 i 19 20 21 22 23 24 25 Q A Q A Q A Q A Q A Q A Q A Q A and create atmospheric pollution or worse yet would form by partial oxidation materials which could be highly toxic (e.g. furans and dioxins)." This is a letter that you wrote, sir? I did. Thank you. Do you have Exhibit 863 there? I do. Do you recognize that as a copy of a Monsanto annual report? It appears to be a copy of an annual report, yes, sir. Would you read to me the slogan on the cover? Are you talking about the sentence at the bottom? Yes. "The strategy is working." Thank you. Let me go on further. I think you have Exhibit 2027? I do. Exhibit 2027 is a memorandum of October 26 of 1970? It is. And this is offered by yourself or authorized by yourself? Yes. 3511 WATER PCB-SD0000075646  1 2 3 4 5 6 7 8 9 10 Q A 11 12 13 14 15 16 Q A 17 18 19 Q ' 20 21 22 A Q 23 24 25 A Q MR. CARLSON: We would offer Exhibit 2027 into evidence, Your Honor. MR. RUNNING: No objection. THE COURT: So received. (Exhibit No. 2027, previously marked for identification, was received into evidence.) MR. CARLSON: Would be kind enough to read to us -- it's fairly short -- the first paragraph. "Recent data from Dr. J. P. Mieure's work indicates the presence of naphthalene and biphenyl and anthracene or phenanthrene and dibenzofuran in Santowax R used in the manufacturer of Aroclors." And that's where the dibenzofurans come from that are a contaminant in the Aroclors? That has not been established. It could be a source. This is a memorandum that you wrote in October of 1970? Yes, sir. Would you be kind enough now to go to exhibit -- Defendants Exhibit 1098. I don't know if you have that there or not. I found it. Okay. Thank you. The exhibit is the prepared 3512 WATER PCB-SD0000075647 1 2 3A 4Q 5A 6Q 7 8A 9Q 10 A 11 12 13 14 15 16 17 18 Q 19 20 A 21 Q ' 22 23 24 A 1 25 Q material you had for a meeting of an ANSI committee, is that true? For Exhibit 1098? Yes. No, sir. Did you give that same information to an ANSI committee? No, sir. Do you have Exhibit 864 there? I have it. MR. CARLSON: Your Honor, Defendant's Exhibit -- I'm sorry Plaintiffs 864 is a document furnished to us by Monsanto during the course of this matter. We would offer it into evidence. MR. RUNNING: That's already in. MR. CARLSON: You're right. Is it? Okay. Thank you. Would you be kind enough to turn to the page of the document which is STR No. 22252? I have it. And while I'm getting my copy of it, would you be kind enough to tell us what the letters A-N-S-I stand for? The American National Standards Institute. And what is that? 3513 WATER PCB-SD0000075648 1 A 2 3 4 5 6 7 Q A 8 9 lO Q 11 12 l3 A 14 15 l6 Q A 17 18 l9 Q 20 21 22 A Q 23 24 25 A That is an industry organization which supports studies made by different groups to establish standards used by industries throughout the United States. In this particular case, it was a group that was put together for dealing with PCBs? Dealing with PCBs and electrical equipment. Mr. Running asked you some questions about information that was provided. Was there an entire industry standards committee set up to deal with the PCBs that Monsanto made? Well, the only committees set up under this organization had to do with the use in electrical equipment. Of the Monsanto PCBs? Well, of PCBs irrespective of the company that made them. If we turn to page seven, is this part of the presentation you made to this ANSI committee? It is. And first of all, there was reference in your presentation earlier to a Michigan fire. That was a fire that occurred where? Do you remember what plant that was? As I understood, it was a General Motors Oldsmobile 3514 WATER PCB-SD0000075649 1 2 3 4 Q A Q 5 6 7 A 8 9 lO Q A Q 11 12 13 A Q 14 15 16 17 18 19 A Q 20 21 22 A 23 24 25 Q A plant. Do you remember the year? In the 50s is as close as I come to it. And that was a fire that developed when they were using petroleum; that is what we would think of as an oil hydraulic fluid? A flammable fluid, yes, sir. It wasn't a phosphate ester fluid? No. It wasn't a water glycol? No. > Now, with regards to this particular information that you presented, when you talk about, "Many of these connections leak, hoses burst, and the tendency is to keep producing by adding more fluid," is that information that you understood to be true in the die cast industry? In some places it was -- Yeah, it did apply. In some cases if a leak was not too bad, they would run the machine until the end of the shift until maintenance came in and fixed it? Well, that depended on where the fluid was going. Sure. If they had a collection system, they might run longer knowing that they'll eventually get around to 3515 WATER PCB-SD0000075650 i 2 3 4 Q 5 6 7 A 8 9 lO Q 11 12 13 A 14 15 16 Q 17 18 9 19 A Q 20 21 22 A Q 23 24 * 25 reusing that fluid. Then when you go on and say, "It is conceivable that many of these hydraulic fluids ended up in the sewer," that's because your company recognized that the fluid; that is hydraulic fluid, could end up in the same place the water was going? Yes. We described that if you recall the other day as the clean up of the stains on the work floor and so on. And then you go on to say, "I do not intend to criticize the customers of our products." You said that for a particular reason, didn't you? Well, I must have. Sure. The reason was that from the knowledge that we -- that was Monsanto -- had at that time of the material the practice was considered acceptable, correct? Yes. And that's what you told an organization of people that were concerned about PCBs in 1971? Yes, sir. Do you have -- I'm ahead of myself. Excuse me. Well, we can pass that. Do you have Defendant's Exhibit 1124? It would be three or four down to your right in the set. It's a list of 3516 i WATER PCB-SD0000075651 1 2A 3 4 Q 5 6 7 Q 8 9 lO A Q 11 12 *13 * A 14 15 16 Q 17 18 19 20 21 22 A 23 24 25 companies that sent material back for incineration. I found it. If we went to -- MR. McDEVITT: What is it, Don? MR. CARLSON: I'm sorry. If we turn to the list of companies beginning on the first page, apparently there were returns of fluid in 1971? Yes, sir. And how did companies like General Motors or the Chevrolet Division know about the incineration service available in 1971? Through discussions with Monsanto's field salesmen primarily. Now, I don't by any stretch of the imagination claim to know all the companies that are in here; and I don't suspect you do either. But what I would like you to do is open to any page. Go about a quarter of the way in and just turn to a page and tell me what page you're on, the STR number. Any page? THE COURT: Any page. THE WITNESS: STR 012824. MR. CARLSON: 3517 WATER PCB-SD0000075652 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Okay. On this particular page can you identify any small die cast companies? MR. RUNNING: I'll object. Your Honor. There's been no foundation laid that this witness is knowledgeable about the identities of these companies. There are a lot of companies on this vendor list that could be small die casting companies, and to suggest he ought to be able to identify them is improper. THE COURT: I'm sure Mr. Papageorge is more than capable of telling us that. In fact, the premise to the question was, I'm sure you don't recognize all of these companies any more than I do. MR. RUNNING: Well, then I object to the question. What's the point? Unless the title of the company happens to say "die casting," this witness isn't going to be able to pick out whether they were a die caster -- THE COURT: I'm sure he's more than capable of telling you that and telling us that. We are not going to have him go through every one of the companies in this document. MR. CARLSON: That's right. 3518 ' WATER PCB-SD0000075653 w1 2 3 4 Q 5 6 7 A 8 9 10 Q 11 12 13 A Q 14 15 16 A Q 17 18 19 A Q 20 21 22 A Q 23 24 25 A THE COURT: We'd be here until Thursday on that issue alone. MR. CARLSON: Is there any company on there you recognize as being a small die cast company? Most of these companies on this list I'm not familiar with the kind of activity they are involved with. I do not see any reference to die casting. I do not know. Do you see on the bottom Reynolds Metals? I do see that. In the middle, Northern States Power in Minneapolis? I see that also. That could be a transformer. Sure. As a matter of fact, I think you'll see going through here many of the fluid returns were from electrical PCB users, isn't that true? I wouldn't say many. I see three or four. On that particular page? Yes. Right. And I don't believe we want to go through the list entirely. If we went -- Pick another page. Just go in and pick a page. We'll do it one more time. Let's go to STR 012830. 3519 WATER PCB-SD0000075654 w1 2 3 4 Q A 5 6 7 Q A 8 9 l0 Q A Q 11 12 13 A Q A 14 15 16 Q 17 18 l9 A Q 20 21 22 23 24 25 Do you see any companies there you would identify as a small die cast company? Again, my answer is like the previous. I don't recognize some of those names. So I just don't know what activity they are involved in. We do see large companies at the top like DuPont? Oh, yes, DuPont. A little further down Eastman Kodak? Yes. 1 More Dupont? Yes. Florida Power and Light? Yes. Mr. Papageorge, do you have any information that you can share with us that small die cast companies were returning PCB hydraulic fluid to your incineration plant? I don't have any personally. Thank you. Defendant's Exhibit 1119 is to your right, probably up on the top of the stack. I think just to save time because I don't want to belabor the point -- Your company did do terphenyl biodegradable studies almost at the same time the product was being taken off the market for the Pydraul 312 use? 3520 WATER PCB-SD0000075655 1 A 2 3 4 5 6 7 8 9 10 Q 11 12 13 A 14 15 16 Q 17 18 19 20f 21 22 23 24 25 Would you -- * MR. RUNNING: Objection. The question is ambiguous, it's not clear as to which products he's referring to taking off the market. THE COURT: That's the proper -- Originally he said terphenyls, then 312. MR. CARLSON: I should have said 312-A. Biodegradation studies of terphenyls -- the results were being obtained at about the same time that the terphenyl 312-A product was being taken off the market? Yes. The timing was -- Yes. You're going to have to bear with me a second. I think one of my documents is in a box. We won't have to ask you questions about those documents right now. MR. RUNNING: Your Honor, just seeing this document, I object to any questions on decisions made in 1976 concerning the prices of dielectric fluids. It's totally irrelevant. Referring to Exhibit 2033. THE COURT: Do you need to go in chambers or not? MR. CARLSON: I can demonstrate relevance, 3521 WATER PCB-SD0000075656 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 t but I don't know if you want to do that in front of the jury. MR. RUNNING: Let's do it in chambers. (Whereupon, the following proceedings were held outside the presence of the jury in chambers.) THE COURT: The record should reflect the Court is in chambers relative to the objection made by Mr. Running. We'll hear from Mr. Running first and then Mr. Carlson. MR. RUNNING: Your Honor, my objection concerning Exhibit 2033 is that Mr. Carlson is apparently now going to go into decisions that were made about the pricing of dielectric fluids in the last year in which Monsanto made dielectric fluids. There was a decision made to increase the prices of the dielectric fluids at least according to this document to help recover the cost of shutting down facilities such as incinerators and other facilities that were dedicated to Aroclor production. This has nothing to do with any issue relevant to this case. If Mr. Carlson wants to represent some plaintiffs some day who claims he paid too much for dielectric fluids, that's one 3522 WATER PCB-SD0000075657 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 thing. I can't imagine what his cause of action would be. He'd be entitled to consider whatever rights they may have. But Stroh wasn't effected one whit by pricing decisions for dielectric fluids and particularly 1976 when we hadn't been selling PCB based hydraulic fluids for five years. There's no possible relevance. All this is is an attempt, an ad hominem attempt to show Monsanto was gouging or charging too much to a set of customers who aren't in this courtroom and have no rights at stake in this courtroom. MR. CARLSON: The only problem with all of this is that Mr. Running in examining Mr. Papageorge made it appear as though Monsanto was losing money in the incineration process thereby giving the impression that Monsanto was doing something to its economic disadvantage. The fact of the matter was that Monsanto had a plan and it will show up from the earlier pricing documents that I intend to reference of 1972 that they would recoup all of this. It certainly has a bearing on whether or not Monsanto, in fact, was losing money as a result of this apparent demonstration of responsible behavior. 3523 WATER PCB-SD0000075658 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 * 16 17 18 I 19 20 21 * 22 23 24 * 25 I It certainly was not to the economic disinterest of the company to do so. They had ways to recoup all of that money. And I think the jury should be aware of that. MR. RUNNING: Your Honor, on that point Mr. Papageorge testified to two things: to the price per pound for the incineration service, which in '73 was five cents a pound, but by 1976 it was apparently eight cents a pound; and to the fact that fuel oil prices kept increasing during the period so that Monsanto didn't make money on the five cents a pound figure. Now, Mr. Carlson is now getting into price decisions that were made in part because of a recognition of the fact that when you decommission an incinerator their capital costs incur. If we are going to get into a discussion about whether or not Monsanto made money on decommissioning its incinerator in 1977, we are getting way far afield. This document has nothing to do with whether or not fuel oil costs will exceed the five cents on these prices per pound which is all Mr. Papageorge was referring to. So this is a tangent that has no relevance to this case at all. 3524 WATER PCB-SD0000075659 1 2 3 4 5 6 7 8 9 lO 11 12 l3 14 15 l6 17 18 19 20 21 22 23 24 25 MR. CARLSON: The Court should be aware that the document says that pricing objectives were to achieve the historic high profit market referencing a particular amount of $4 million and recover the cost of going out of the PCB business. The jury has the impression right now that Monsanto is losing money on this process, and that's simply not true. This is the only way that we can present this information to the jury. MR. RUNNING: What this refers to is a product called MCS 1238, which is a research product. And also on this page Aroclor 1016, which is a distilled Aroclor fluid never used for hydraulic fluid purposes. This is nothing to do -- The quote you just read has nothing to do with decommissioning the incinerator. It has nothing to do with any issue relevant to this case. It has to do with research for an even more fractionated dielectric fluid. MR. CARLSON: The pricing objective was for the existing PCB product plus research quantities of 1238. That's all I have. MR. RUNNING: The product referred to Aroclor 1016. MR. CARLSON: Which is fractionated of ,3525 WATER PCB-SD0000075660 i 1 2 3 4 5 6 7 8 9 10 11 12 * 13 14 15 16 17 18 I 19 20 21 * 22 23 24 * 25 I 1242. MR. RUNNING: It was never used for hydraulic fluid purposes. THE COURT: I've heard enough of your arguments. I generally agree with Mr. Running that this does not have a lot of relevance, but I also concur with Mr. Carlson. I think the best way to handle this is that you can ask him a couple of questions as to whether or not they recouped their losses, any losses that they may have occurred as a result of offering high temperature incineration, the materials returned to them by customers through an increase in prices at a later date. And if he says yes, that's the end of the inquiry. If he says no, then you can use the document to impeach him. MR. CARLSON: The problem is I think he's going to say, "I don't know." MR. RUNNING: I think he's going to say, no. There's nothing in the document to impeach. I'd like Mr. Carlson to point out something that does. I realize the Court hasn't read the document, but we are going to get into this document and Mr. Carlson is going to go rummaging around 3526 WATER PCB-SD0000075661 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * * * * * * * * * * * * * * * * * * * these other irrelevant facts. He's never going to impeach the witness. There's nothing in here that shows operating losses for the incinerator were recouped. (Whereupon, there was a change of reporters.) 3527 WATER PCB-SD0000075662 1 2 3 4 5 6 7 8 9 * 10 11 12 l3 14 15 16 17 18 19 20 21 22 23 24 25 MR. CARLSON: While we're on that same subject, I think The Court should be aware I intend to start out with the pricing increase they had in 1972 to compensate them for the expenses they ran into with PCBs, the purpose of which was to get them back to 40 percent gross profit. I think I'm going to be able to develop that information with this witness. MR. RUNNING: Well, Your Honor -- THE COURT: I don't disagree with the impression that was probably left with the jury is the same one I got. MR. CARLSON: Yeah. THE COURT: And that is that there was a service being offered to customers to have their waste oils returned, some of it was freight included, all kinds of things that were being offered to certain customers of Monsanto to assist those customers in their disposal efforts on the PCB issue. I mean, that's the impression I got from Mr. Papageorge's general testimony on this incineration issue. So, I don't disagree with Mr. Carlson that he can ask him some questions relative to recoupment of that cost that was expended by Monsanto for servicing these customers. Other than that, I would agree with Mr. Running, 3528 WATER PCB-SD0000075663 1 that this has very little relevance at all. 2 MR. CARLSON: Okay. Thank you. 3 4 (Whereupon, the following was had in open court in the presence of the jury.) 5 MR. CARLSON: 6 7 Q Mr. Papageorge, I'd like to show you what has been marked as Exhibit 2034. And I would like you simply at 8 this point, sir, to familiarize yourself with the 9 document. 10 A I have reviewed it. 11 Q Is it true, sir, that your company in 1971 increased the 12 13 price of certain PCB fluids to cover your losses of other PCB products that you were no longer 14 manufacturing? 15 16 A As well as other costs associated with the program, yes, sir. 17 Q And these price increases were made so that your company 18 19 would not lose money as a result of having these PCB-related expenses, correct? 20 A Yes, sir. 21 Q And that same price increase program carried through * 22 into 1972 as well, did it not? 23 A Yes. 24 Q And then if we went ahead, would you be kind enough to 25 take a look at Exhibit 2033 so that you feel comfortable 3529 WATER PCB-SD0000075664 i i 2 3 4 5 6 7 8 9 10 11 12 * 13 14 15 16 17 18 19 20 21 22 23 24 25 understanding what it is. THE COURT: He's not going to ask you questions on all the individual pricing. MR. CARLSON: Q Just so you feel comfortable with what that document is. A It's the first time I've seen it, so I was trying to get familiar with it. Q It is true, sir, is it not that in 1976 your company also developed a plan for increasing the costs to your customers of PCB fluids to cover the costs of the . incineration program that you had in place? A That wasn't one of the considerations, no. Q I think if you look at the bottom of the page. A The increase per pound for incineration was an attempt to break even for incineration. It was not reflected in the price of the product sold. Q But then if you look above at the pricing objective, what you were seeking to do, is to continue with your profit goals that had been historical profits of the company? MR. RUNNING: Your Honor, I renew my objection. That document has nothing to do with the subject Mr. Carlson is stating it does. THE COURT: Well, then, the witness can so state. 3530 i WATER PCB-SD0000075665 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A Q MR. CARLSON: I wasn't saying that anyway. I am saying your company had a goal in 1976 to continue the same high profits that you had had in the past? That was a goal. And that was a goal that was accomplished by increasing prices to the customer? Well, it is evident in the price increases, but there were other activities to keep the costs down to help achieve that goal. Sure. Would you be kind enough to take a look at Exhibit 2032. This is the last one we'll reference on this subject. MR. RUNNING: Your Honor, I object to the use of this exhibit as being beyond The Court's ruling. We're going well beyond the couple of questions The Court allowed. MR. CARLSON: I was going to ask him whether or not -- MR. RUNNING: I think we've covered this subject before The Court's ruling. Your Honor. THE COURT: Not beyond it, but we certainly covered up to it. MR. CARLSON: If The Court would look on Page 2, Paragraph 4 of that document and see the specific reference I want to make. 3531 WATER PCB-SD0000075666 I >1 MR. RUNNING: Your Honor, this has nothing to 2 do with the consideration. 3 THE COURT: I agree with Mr. Running. >4 MR. CARLSON: Okay. 5 THE COURT: Besides the issue or the reference 6 to Paragraph 4 has already been admitted by the witness. 7 MR. CARLSON: Thank you. 8 Q Like to have you look, sir, if you would. Plaintiff's 9 Exhibit 12. 10 MR. McDEVITT: Exhibit 12? 11 MR. CARLSON: Yes. 12 MR. CARLSON: * 13 Q And in doing so, Industrial Bio-Test, can you identify 14 the company for me? 15 A Industrial Bio-Test Laboratories is an independent 16 laboratory that back in the seventies and earlier was in 17 the business of providing test studies with test animals 18 19 on chemicals. MR. RUNNING: Your Honor, may we be heard in 20 chambers? 21 22 (Whereupon, the following was had in chambers outside the presence of the jury.) 23 THE COURT: All right. Let the record show 24 The Court is in chambers again relating to the objection 25 of the test studies on animals done by some independent 3532 WATER PCB-SD0000075667 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 laboratory. MR. RUNNING: Your Honor, I don't know where Mr. Carlson is going with this document, but I do want to raise an objection to a line of inquiry which I anticipate he may be raising. We do not object to questions about the IBT studies that have been referred to in Mr. Papageorge's direct examination, and which concern PCB fluids. Industrial Bio-Test was a reputable lab independent of Monsanto, they performed tests, and Mr. Carlson can conduct cross examination on how those tests were performed. But there is another incident involving IBT that does not have anything to do with PCBs, but which has great prejudicial value nonetheless, and that is on other products, other than PCBs, there was some evidence of wrongdoing at that laboratory, falsification of test records. And people were convicted of crimes for that. One or more individuals went to jail for a period of time. I don't want Monsanto to be smeared with that, with any references to that issue, that subject, which has nothing to do with PCBs, and has nothing to do with this case. MR. CARLSON: First of all, the particular document that is involved here is a handwritten letter 3533 WATER PCB-SD0000075668 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to people at Industrial Bio-Test from someone from Industrial Bio-Test regarding the Aroclor studies. THE COURT: Then it's an internal memo of IBT? MR. RUNNING: Yes. MR. CARLSON: Yes, sir. THE COURT: Apparently a copy must have been given to Monsanto. MR. CARLSON: No, Monsanto received a copy of it when they litigated the case in Bloomington, and to my knowledge that's the first time you saw it. If you saw it before that, I don't know. MR. RUNNING: Yes. MR. CARLSON: But I do know they received a copy of it, and it's as a result of that litigation we asked Mr. Papageorge about this. MR. RUNNING: Mr. Carlson did ask this question in the videotape examination before the trial, and he said he saw it for the first time in the Bloomington trial. MR. CARLSON: That's right. MR. RUNNING: There's not going to be any objection for admission of the document. What I'm concerned about is where Mr. Carlson is going to go with this line of inquiry. And I don't want to get one or two questions out about some criminal conviction and I 3534 WATER PCB-SD0000075669 1 2 3 4 5 6 7 8 9 *10 11 12 *13 14 15 * 16 17 18 19 20 21 *22 23 24 *25 won't have a chance to undue the damage. That's why I asked for the chambers conference. MR. CARLSON: Let's start with the document itself. This is a document that Monsanto had during the course of our litigation, and it should have been produced. We agreed we wouldn't raise arguments about the other documents we got from Bloomington you didn't produce, and we didn't raise those, and we didn't make an issue of that, and I haven't made an issue of any of those documents pursuant to that understanding, and I won't. But this is a document that we obtained in exactly that same way. Secondly, with regards to the problems that Industrial Bio-Test, this document. Exhibit 12, has to do with the quality of the work that was being done on the Aroclor studies. The next step in this progression is that the person that went to jail happened to be employed by Monsanto following Industrial Bio-Test, and he has given a statement in the Monsanto records referable to what he saw during the period of time that these kind of studies were being made. And I can give The Court court a copy of that you if need to look at it. It certainly has to do with the credibility of the work that was being done by Industrial Bio-Test for Monsanto when one of the 3535 WATER PCB-SD0000075670  1 2 3 4 5 6 7 8 9 * 10 11 12 * 13 14 15 * 16 17 18 i 19 20 21 * 22 23 24 25 heads of the company talks about whether or not information that was developed there was because it was fudged or collected with carelessness or incompetence, particularly the data for the supplementary study with 1242. MR. RUNNING: Your Honor, a couple of points. First of all, I don't have the discovery responses in front of me, but this wasn't asked for. MR. PENDERGAST: We asked for all internal documents. THE COURT: Let's forget about that. Let's deal with the merits of issue rather than how they got the document. MR. RUNNING: Secondly, I don't believe we're obligated to produce documents -- THE COURT: I said let's get to the merits. MR. RUNNING: The merits, Your Honor, as I said at the outset, if Mr. Carlson wants to ask questions about PCB studies, I have no objection. If he wants to ask about Paul Wright's review of the PCB studies while he was employed at Monsanto, I have no objection, but if he wants to get -- Paul Wright then went to IBT, was employed by a separate company. There was no affiliation between IBT and Monsanto. And Paul Wright was subsequently convicted of a crime for his 3536 i WATER PCB-SD0000075671 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 activities at IBT on studies that did not relate to PCBs. And to take a tar brush and smear Monsanto in a PCB case with conduct that happened after an individual left Monsanto, after this product was reformulated, and concerning studies that don't have anything to do with PCBs, is just grossly improper. And I think just because the fellow happened to be employed by Monsanto beforehand doesn't mean that Monsanto is forever held to be accountable for his actions. MR. CARLSON: I might be mistaken, I think he was employed by Monsanto. MR. RUNNING: He was hired afterwards as well, but before the criminal allegations were made. MR. CARLSON: Then Monsanto had him write out a statement about what he saw during the period of time this work was done, and some of the products involved when he went to jail were Monsanto products, weren't they? MR. RUNNING: He was not -- no, he was not convicted -- one at a time -- he was not convicted for any -- and Mr. Papageorge has testified to this -- he was not convicted for any improprieties regarding PCB studies. MR. CARLSON: Didn't say that. There were two Monsanto products, however, and he has commented on what 3537 WATER PCB-SD0000075672 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 *16 17 18 19 20 21 22 23 24 25 he saw at the lab when he was there with regards to the way these studies were being done, which is entirely consistent with the guy at Industrial Bio-Test saying that he is ashamed to publish that work, which isn't part of this memo. THE COURT: I'm sorry. Did he see this so-called work while he was an employee of Monsanto? MR. RUNNING: Well, I'm not sure what Don is referring to now, but the answer to that as to this document, no. This is an internal IBT document. MR. CARLSON: What Joe said is a good idea though, and let me pull out the document that Paul Wright drafted at Monsanto referable to what was going on at IBT. IBT has done a ton of work for Monsanto. Monsanto had people, a lot of people in there going through this. Be that as it may, if The Court wants I'll get the Paul Wright document, which, I think, is important for an understanding. THE COURT: If you think it is important for me to look at, I'll certainly looking at it. MR. RUNNING: Why don't you get it. MR. McDEVITT: It's going to be another exhibit. MR. CARLSON: It's the next exhibit. 3538 WATER PCB-SD0000075673  1 2 3 4 5 6 *7 8 9 * 10 11 12 * 13 14 15 * 16 17 18 19 20 21 * 22 23 24 25 MR. RUNNING: Let's get it. MR. McDEVITT: Let's get it now so we don't have to do it again. THE COURT: I agree. (change in reporters.) 3539 WATER PCB-SD0000075674 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CARLSON: The only -- I have highlighted the parts that I thought I would be making reference to. MR. RUNNING: Could I see what you have got? MR. CARLSON: Sure. MR. RUNNING: Why don't you just mark it on here. MR. CARLSON: This section. This section. MR. RUNNING: Okay. Your Honor, I don't know which -- who you would like to address this first. THE COURT: Well, generally I agree with Mr. Running. The fact that this gentleman was convicted of some crime which related to something totally unrelated to his studies of the products being considered in this lawsuit is totally irrelevant. The real question I would have in my mind, and why I asked the question before, is what did Monsanto know back in the late '60s or early '70s when these studies were being conducted on behalf of Monsanto. It's not a question of whether or not 3540 WATER PCB-SD0000075675 I >1 2 3 >4 5 6 ^7 8 9 * 10 11 12 * 13 14 15 * 16 17 18 i 19 20 21 22 23 24 ^ 25 these practices of these animal studies were shoddy, not up to the normal thing that you would expect a laboratory to be doing, but, rather, whether Monsanto was aware or had reason to be aware of what kind of activity was being done over there and whether they were getting false information or incomplete information or altered information. If there is evidence that Monsanto, at the time in question, was aware either personally -- through a member of their staff being aware of that, then of course it becomes relevant because that gets into the issue of what they knew or should have known. The reason I say this is that Mr. Papageorge has continually indicated during both his direct and indirect -- and cross-examination testimony that they were plodding along from the time they heard of the Swedish test results until such time as they finally discontinued manufacture of the hydraulic fluid oil which is in issue here, and that they didn't inform their customers of the dangers of PCBs because studies were being conducted. If they were aware of something that was not giving them the kinds of information that somebody in Monsanto's position should have, well, then that's one thing. But if they were unaware of 3541 I WATER PCB-SD0000075676  w1 2 3 4 5 6 7 8 9 *10 11 12 *13 14 15 *16 17 18 *19 20 21 *22 23 24 *25 the kinds of practices that this test company was utilizing, then I don't see much relevance in it at all. MR. RUNNING: We have no argument with that. MR. CARLSON: I am sorry? MR. RUNNING: We have no argument with that standard at all. MR. CARLSON: They had to have been aware by mid-October of '72 because that's when Mr. Wright came back to Monsanto from IBT. MR. RUNNING: Your Honor, this memo. Papageorge Exhibit 18 -- THE COURT: :But hadn't they stopped selling fuel oil -- or, industrial fluids to Stroh that time? MR. McDEVITT : Yes. MR. RUNNING: Yes, Your Honor. MR. CARLSON: Yes, that's true. MR. RUNNING: That's exactly right. Notwithstanding my mistake in the interrogatory, that's exactly right. MR. CARLSON: Apparently they were selling it until '74 but -- MR. RUNNING: I'll give a mia culpa on 3542 WATER PCB-SD0000075677 *1 2 3 4 5 6 *7 8 9 * 10 11 12 *13 14 15 * 16 17 18 * 19 20 21 *22 23 24 * 25 redirect on that, but it was a poor proofreader. There is no dispute we stopped selling even the PCT-based product, 312A, to Stroh or anybody else by the second quarter of 1982 -- '72. That's why he hit me in the side. And you see why I missed the '74 date. And Mr. Wright apparently came back to Monsanto in mid-October, '72. But this memo is about 62 studies that a Dr. Fisque had identified as being suspect, and this inquiry didn't come up until mid-1977. In any event, we have no problems with the standard the Court has articulated. THE COURT: So that's why. You know, if this fellow had given some information to the Defendant by the time in question which would invalidate the kinds of premises upon which Monsanto was acting, well, then I would agree with Mr. Carlson, but I don't think that's a fact. MR. CARLSON: Not at this point. Let me -- I guess what I would like to do, for the purposes of the record, is simply ask that the submission of Exhibit 12 and Exhibit 18 be as an offer of proof on the question of the adequacy of the work done by IBT and the credibility of the witnesses on that subj ect. 3543 i WATER PCB-SD0000075678 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What I would propose to do, then, is to examine the witness on some related matters, not reference these documents. If I think that there is a proper foundation for the use of the documents, I would let the Court know, and I'll ask that it be admitted, and without making reference to the contents of them, and we can look what the problem is at that point. It may be that I will never conclude that I have laid a foundation to breach the subject again. I don't know the answer to that. But I do have some information I think that is germane. MR. RUNNING: Well -- THE COURT: If you get the answers that you're hoping to get out of Mr. Papageorge, yes, then we will come back into chambers and discuss it. MR. CARLSON: Okay. MR. RUNNING: But, Your Honor, there is a ruling on the standard. They have to show that Monsanto knew of flaws in the IBT work before the reformulation of Pydraul 312A. THE COURT: Knew or should have known. MR. RUNNING: Knew or should have known based on some facts, yes. MR. CARLSON: We are going to get into it 3544 WATER PCB-SD0000075679 i 1 2 3 4 5 6 *7 8 9 * 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one more time, so we might as well -- MR. McDEVITT: Yeah. THE COURT: Let me send the jury upstairs. MR. CARLSON: Okay. (Discussion off the record.) THE COURT: All right. Go ahead. MR. CARLSON: We are going to get into it one more time, and it has to do with the same relationship between IBT and Monsanto. On one of the rat studies IBT reported that it was slightly tumorgenic. Monsanto came back and said, "Can't you say it's a noncarcinogen?" And IBT changed their lab report to read the way Monsanto asked that it read. MR. RUNNING: Was this in 1975? MR. CARLSON: I think that's right. My belief is that there is a close relationship between IBT and Monsanto that's been in existence for years, and these companies were working closely, and the credibility of that lab reflects on the credibility of Monsanto. I want to let the Court know that probably -- And I think you're probably right, it will be Kelly rather than Papageorge that will get into that issue, but that has been a problem with IBT and Monsanto for a period of time. So -- 3545 WATER PCB-SD0000075680 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RUNNING: I would -- It makes sense to address this now, but if you want to wait for Dr. Kelly, Your Honor -- THE COURT: No, you can do it now, if you want. MR. RUNNING: This document gives an example of the fallacy in Mr. Carlson's reasoning. This is, I am sure, one of their favorite IBT documents, and it identifies of the 62 studies that Dr. Fisque had identified as being suspect. 11 were Monsanto studies; meaning 51 weren't Monsanto studies. IBT was a recognized -- a very large, independent testing lab in the 1970s. As to this 1975 review of the bioassays, I believe there was -- Dr. Kimbrough published in 1974 the first study of the carcinogenicity of PCBs, I believe it was on laboratory mice, and there was a rat study the next year. Monsanto commissioned IBT to do an evaluation. There were internal criticisms of that evaluation at Monsanto. We produced those records in response to a discovery request. And I would submit that all of these events as they happened, the starting point was Kimbrough's 1974 paper, and, you know, this story 3546 WATER PCB-SD0000075681 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would go to '74, '75 -- I don't think it comes to much of any conclusion that would help the Plaintiff. But even if it did, I question the relevance for the same reasons as the Court has articulated. This product -- Even if you assume that the PCT product should be lumped in with the PCB product, Pydraul 312A was not sold after the second quarter of 1972. And to start getting into whether or not IBT performed good science or bad science in reviewing rat tumors in 1975 is just totally irrelevant. And whether or not there was a close relationship between Monsanto and IBT in 1975 is equally irrelevant. I would submit it's false. But why should we get into a factual dispute over something like that when it's three years after the last sale of the product in question? THE COURT: Well, I generally agree with your viewpoint, Mr. Running. I think Mr. Carlson can certainly ask Dr. Kelly if there had been a close relationship between Monsanto and the IBT laboratory during the '60s and early '70s. And if he says yes, or something close to that, that should really end the inquiry. If he says no, well then we have got a different issue. Then there may be some opportunity to impeach him by that no answer. And we may have to 3547 WATER PCB-SD0000075682 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 116 Q 17 18 A 9 19 Q 20 21 22 A 23 Q 24 25 come back in chambers at that point. MR. RUNNING: Just so we have warning, Your Honor. Because I don't want things coming out about a '75 incident to impeach him about whether there was a close relationship in '72 without having a chance to be heard on that. THE COURT: No problem. You'll get a chance to be heard. MR. RUNNING: Okay. . (Recess had.) , (Whereupon, the following proceedings were had in the presence of the jury.) MR. CARLSON: Maybe we'll be done. I hope. MR. CARLSON: Mr. Papageorge, your company did a fair amount of work in developing an Aroclor known as 1016? Yes, sir. The Aroclor 1016 was basically the Aroclor 1242 distilled so that you wouldn't have the five-chlorine PCB? That is correct. And the effort was made to develop that Aroclor 1016 because of the presence of the five-chlorine PCB in Aroclor 1242; wasn't it? 3548 WATER PCB-SD0000075683 w 1A 2Q 3 4 5A 6Q 7A 8 9 lO Q 11 12 A 13 14 Q 15 16 A 17 18 Q 19 20 21 22 A 23 Q 24 25 Yes. Do you recall, sir, that in the early 1960s the question of the potential damage caused by chlorinated hydrocarbons became an issue? I'm not aware of -- The early '60s? Yes. Became an issue? I am not aware of any issue being attributed to the whole family of chlorinated hydrocarbons. There were some chlorinated hydrocarbons which became an issue in the early '60s; weren't there? Well, I would suggest that some of them were known to have potential for causing problems even before that. By the early '60s it was true that DDT was found in the tissue of animals? I'm trying to recall the dates. Sometime in the '60s. I don't know if it was early or not. There has been reference to the book "Silent Spring" as being published in 1962. Does that help to refresh your recollection as to when certain things were known? Yes, there were some studies indicating that, um-hum. With regards to PCBs as your company knew it in 1971, they were so thoroughly distributed throughout both the animate and inanimate world that they occurred 3549 WATER PCB-SD0000075684  *1 2 3 4 5 6 7 8 9 10 11 12 Q *13 A 14 Q 15 16 17 A 18 Q l9 A 20 Q 21 A 22 Q 23 A 24 Q 25 A virtually everywhere? MR. RUNNING: I am sorry. This relates to what? MR. CARLSON: PCBs in 1972. THE COURT: You said '71. MR. CARLSON: I am sorry, '71. THE WITNESS: Well, I am having trouble with the expression "virtually everywhere," because there were samples taken where PCBs were not detected. MR. CARLSON: But they were found throughout the world? They were scattered, yes, throughout the world. Okay. And it was likewise true that in the early '60s DDT was found scattered throughout the environment? Wherever it was distributed or dispersed, yes. And PCBs in 1971 you knew were being found in fish? Yes. Birds? Yes. Domestic animals? Yes. Wild animals? I don't recall a wild animal study. 3550 WATER PCB-SD0000075685  IQ 2A 3Q 4A 5Q 6 7A 8Q 9 10 A 11 Q 12 13 A 14 Q 15 16 A 17 Q 18 19 A 20 Q 21 22 23 A 24 Q 25 You knew that it was being found in soil? Yes. And in water? Yes. And that was likewise true in 1962 for DDT; was it not? Yes. It was known in the early '60s that DDT was stored in the fat of animals, or birds, or fish? . There were reports that said that, yes. And PCBs are stored in the fat of animals, birds, fish and people? That was established much later, yes. And the early '60s it was known that DDT was found in mother's milk? I have seen reports that stated that, yes. And in the '70s it was found that PCBs were in mother's milk? Yes. And in the early '60s DDT was found to be such that the fatty storage deposits act as biological magnifiers, correct? That is correct. And that's likewise true of PCBs, isn't it, they are biologically magnified? 3551 WATER PCB-SD0000075686  9 1A 2Q 3 4 5 6A 7 8Q 9 10 A 11 12 Q 13 14 15 16 17 A 18 Q 19 20 21 A 22 Q 23 A 24 Q 25 As they go up the food chain, yes, sir. So that, for example, with regards to PCBs, if you take in as little as one-tenth of a part per million in the diet, you can have up to 10 or 15 parts per million in the body? I don't recall that -- those numbers, but it does accumulate, um-hum. And in birds you do recall they accumulate up to 75,000 times the intake amount? I recall that number in terms of aquatic life. I don't recall it relating to birds. Okay. With regards to the concentrations of DDT that were being found with nonoccupationally-exposed people, do you recall that they were showing parts of -- or, approximately 5.3 parts per million to 7.4 parts per million in their body? I don't remember those numbers. You do recall that there were concentrations in the parts per million being found in nonoccupationally-exposed people to DDT? Again, I don't recall specific numbers. You do recall it occurred, though? Yes. And, likewise, with regards to DDT, one of the problems of DDT that was understood in the early '60s 3552 WATER PCB-SD0000075687 1 2 3 4 5A 6Q 7A 8Q 9 lO A 11 Q 12 l3 A 14 Q 15 A l6 Q 17 18 19 20 21 22 23 24 25 Q was that they got into the food chain, so that one species would eat another species that had PCBs (sic), and it would keep on passing up the food chain? Yes. And that's likewise true of PCBs; isn't it? There is a similarity, yes. And it was understood in the early '60s that DDT could be passed from the mother to the fetus? That I don't know. You do know that it was passed from the mother to the newborn in her milk? I have read reports to that effect, yes. That's likewise true of PCBs? Yes. It is true of PCBs that most of them are so stable that they cannot be broken down, they do not biodegrade by ordinary processes? MR. RUNNING: This is all PCBs? MR. CARLSON: He can answer the question as he chooses. THE WITNESS: You used the expression "most of them"? MR. CARLSON: Yes. 3553 WATER PCB-SD0000075688 i p 1A 2 3Q 4 5A 6Q * 7A 8 9 *io 11 Q 12 *13 A 14 15 Q * 16 17 A 18 Q * 19 20 A 21 Q *22 23 24 A *25 Q I would suggest that a few of them is more descriptive. Well, for everything above four they're extremely stable, aren't they, four-chlorine? There are amongst the five, six, sevens, eights. All right. Some are very stable. And some of the fives do degrade. It does not mean all fives do not degrade. So I think a better description is that some of the higher-chlorinated do not degrade. And many of the chlorinated hydrocarbon pesticides were so stable that they did not ordinarily degrade? My experience with pesticides is very limited, and I honestly don't know. I can't comment. It was understood in the early '60s that DDT could enter the food chain as the result of being in water? That's what I read. And you knew that PCBs in the 1960s were going into water? Some of them, yes. You were -- As of '69 you still had 700 pounds a day going in from one of your plants into the -- into water? That is true. And you knew that -- from the previous documents that 3554 1 WATER PCB-SD0000075689 I *1 2 3A 1 4Q 5 6 *7 8A 9Q * 10 A 11 Q 12 > 13 14 A 15 Q > 16 17 18 > 19 20 21 > 22 23 A 24 >25 some of the PCBs would be going into sewers and waterways? Some of them, yes. Interesting -- It was found that DDT in the early '60s was killing the young shrimp at the parts-per-billion level? This was the early '60s; wasn't it? This is the first I have heard of that. Okay. I don't know. You do know that the DDT -- strike that -- PCBs were killing shrimp -- juvenile shrimp at the parts-per-billion level? Yes. And one of the things that was understood about the DDT products and the -- Strike that. One of the things that was understood in the early '60s about DDT was that although there may not be an acute effect, that is, if you put it on your skin or got it on when you're dusting your roses, or however it was being used, you may not have an acute reaction to it, right? Certainly. I have seen that personally. (Switch in reporters.) 3555 > WATER PCB-SD0000075690 I * 1 Q Sure. But it was also becoming -- it was understood at 2 that time that there could be long-term effects as a 3 result of buildup in tissue of certain birds, in 4 animals? 5 A The reports indicate that, yes, sir. 6 Q It was known of DDT that one of the target organs or the *7 organs that you would see the DDT concentrated in was 8 the liver? 9 A That's one of the organs, yes, sir. lO Q And it was known back as far as the 1930s that PCBs 11 would affect the liver? 12 A At high concentrations, yes. l3 Q So that it was known in the thirties that the PCBs would 14 be such that they would be, they would be stable enough 15 to accumulate in the liver in the 1930s? l6 A Oh, I'm not qualified to comment on their stability and 17 effect on the liver. I don't know. 18 Q It was reported in the early sixties that some 19 chlorinated hydrocarbon insecticides caused nervous 20 system disorders? 21 A I don't recall seeing that information. 22 Q Do you recall that it was found that DDTs would affect 23 the ability of pheasants to reproduce? 24 A I vaguely recall a report that described the test with 25 pheasants. I do not recall the details. 3556 WATER PCB-SD0000075691 i i Q You do recall that PCBs had been found to affect the 2 ability of pheasants to reproduce? 3 A No. No. I do recall that the federal laboratories in 4 Maryland said that the effects noted were not PCB, but 5 due to DDT. 6 Q And you're aware of reproduction studies on other birds 7 showing that PCBs can affect the ability of birds to 8 reproduce? 9 A Yes. 10 Q It was being found as early as the 1950s that DDT was 11 accumulating in the parts per million ratio in people, 12 wasn't it? 13 A Not being involved with DDT, I just don't remember any 14 reference to that in the fifties. I don't know. 15 Q Would you be kind enough -- I believe that there are 16 some additional documents up there, and the first one, 17 hopefully, would be 2007. 18 A I have it. i9 Q I imagine it's been some time since you've read much 20 about DDT and concentrations and that kind of thing. 21 A That is true. 22 Q Your company did have -- Strike that -- an agricultural 23 chemical department that monitored scientific literature 24 25 that was applicable to agricultural products? MR. RUNNING: Is this relating to DDT or does 3557 WATER PCB-SD0000075692 1 this relate to DDT or products other than DDT? There's 2 been no testimony about Monsanto producing DDT. 3 4 MR. CARLSON: I didn't say there was. I just asked a question. 5 MR. RUNNING: Object. 6 7 THE COURT: This is a generic question about whether or not the defendant had an agricultural 8 chemical department that monitored scientific journals. 9 10 MR. RUNNING: Relating to all business? THE COURT: Relating to anything, I assume. 11 MR. CARLSON: That's right. 12 13 THE WITNESS: My answer is, yes, they did. MR. CARLSON: 14 Q And your company also in the -- Strike that. What is 15 16 the American Medical or A.M.A. Archives of Industrial Health? 17 A I don't know. 18 Q Okay. Would you be kind enough just to look at 2007 and 19 tell me whether or not that refreshes your recollection 20 that DDT was being measured in people down to the low 21 22 parts per million? THE COURT: This is in 2007? 23 MR. CARLSON: Yes. 24 25 THE WITNESS: Well, I see wording here that indicates that. 3558 WATER PCB-SD0000075693 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RUNNING: Well, I think. Your Honor, I think the witness should be informed there's a difference between reading a document and refreshing one's recollection. MR. CARLSON: I don't mind Mr. Running talking to his witness out in the hallway, but I do mind him doing it here. MR. RUNNING: Mr. Papageorge has been asked to read a lot of documents, and I want it clear when he's being asked to refresh his recollection it's different than reading a document. MR. CARLSON: If you'd like to take your witness out into the hallway and explain it to him. MR. RUNNING: Well, when I want to do that, Mr. Carlson, I'll ask to do that. THE COURT: Fellows, that's enough. If you are going to ask him to refresh his recollection, fine. If you want him to read from the document, fine too. Just so the witness understands. MR. CARLSON: And believe me, that's all I care about. Q Is it true, sir, that back in the 1950s scientists had the ability to measure DDT down in the low parts per million level? A Yes. 3559 WATER PCB-SD0000075694 i 1 Q Okay. It was also true, was it not, sir, that in the 2 1950s scientists had the ability to feed animals diets 3 4 consisting of some traces -- I suppose that "traces" is overly broad, so I'll rephrase the question. 5 It was true, sir, that in the 1950s scientists had 6 7 the ability to feed animals diets that had low parts per million contamination of certain chlorinated 8 hydrocarbons to see whether or not the chlorinated 9 10 hydrocarbons would be passed in the milk, for example, of a cow? 11 A That is true. 12 Q There were no studies done like that for PCBs prior to 13 1970, were there? 14 A Well, there were studies starting in the '68-'69 15 timeframe. 16 Q But that's work that could have been done earlier if the 17 company had so chosen? 18 A In hindsight, yes. 19 Q There's a whole group of studies on experiments that 20 were being done in the 1950s regarding the accumulation 21 22 of DDT in milk, and in body fat in people and everything. You do recall that, don't you? 23 A I recall the general subject and the impact that was 24 being noted. 25 Q And that was occurring because it was known that the DDT 3560 WATER PCB-SD0000075695 1 was in the environment? 2 A Well, sir, it's a registered product that is disbursed 3 4 widely. It's not an industrial chemical. It's an entirely different set of circumstances. 5 Q But it's also true, sir, isn't it, that you people at 6 7 Monsanto knew in the 1960s that your PCB chemical was also getting into the enviornment? 8 A Not to the extent that one would expect from aerial 9 10 spraying and dusting of crops and mosquito control and so on. It's so different that the extrapolation to an 11 industrial chemical just would not have been a practical 12 kind of a line of thought. 13 Q How many billions of pounds of PCB did your company 14 make? How many billions of pounds do you think of that 15 chemical you made? 16 A I have never added up the total, no, sir. 17 Q You would agree with me is in the the billions of 18 pounds, wouldn't you? 19 A I don't know whether it reached a billion. I don't 20 know. I'd have to sit down and add it up. 21 Q And prior to 1965 the chemical was being used as an oil 22 for spraying on roads to contain dust. Your own 23 documents show that, don't they? 24 A Yes, but these billions that you say are possible -- *25 Q Right. 3561 m WATER PCB-SD0000075696 -- many of them are still in steel containers and still 2 3 4 in use, that road dusting was the rare exception. It was not -- the product wasn't designed to dust roads, just DDTs were designed to dust crops. 5 Q But your company knew the product was being used to dust 6 roads, amongst other things? 7 A I don't know that. I have no evidence that we knew 8 that. 9 Q We can go back to Exhibit 24, which, I think, is the 10 abatement plan on Page 7 where it references these 11 products have been used for a variety of uses as dust 12 control. Do you recall that? 13 A Yes, but you're implying this started from 1930 and on. 14 The knowledge that it was used for dusting was a 15 relatively new sort of a recent development. l6 Q I see. You knew that -- we know that it got into the 17 water of the Great Lakes? 18 A Yes. l9 Q And we know that it got into water in Europe? 20 A Certainly. 21 Q We know that it gets into cattle through the silage that 22 they eat? 23 A That's one way, yes. 24 Q So we know that we have a fairly wide-spread 25 distribution of PCBs today, don't we? 3562 WATER PCB-SD0000075697 I i1 2 3 i4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 l9 20 21 22 23 24 25 A Today we do. We know that, yes. Q And this distribution of PCBs in the environment, if Monsanto had wanted to look at the question of whether or not they were going to, for example, accumulate in living things, that work could have been done as early as 1962, isn't that right? A Are we referring to the technology availability? That's right. Q You could have done the experiments? A I don't think we could have analyzed for it. We didn't have the technology to detect it. Q In the environment if you didn't have -- you may not have had the technology to find it in the environment, I don't know quite frankly, but let's leave that aside for a second. You could have done this test, just like were done with DDT in 1962, to see whether or not your PCBs would get into the milk of cows? A We didn't have the methodology to detect the PCBs in the milk, unless it was there in the percent level, one percent, and that's a lot of PCB. Q How were they detecting in the parts per billion of DDT in 1962? A Well, they had the methodology for it. Q Because they developed the methodology? A Well, certainly somebody developed it, sure. 3563 WATER PCB-SD0000075698 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q There was a driving force to develop that methodology? A The driving force was primarily the registration with the Department of Agriculture. Q With regards to PCBs, you didn't develop that methodology early on, did you? A Well, early on -- what is the time frame? Q Early sixties. A Early sixties? Q Sure. A It was not developed. Q You could have gone through exactly the same protocols for PCB that you went, that the agricultural industry went through for DDT as early as 1948, isn't that true? A Oh, I don't understand it that way. In '48 there were no instruments to analyze the GLC and the spectophotrometry. If they did exist, they were very crude instruments in '48. Q Would you expect that in 1949 they could measure DDT in the low parts per million level? A I don't know. I don't know that much about the analysis of DDT. Q Do you expect Dr.Kelly wouldknow more about that? A I don't know. Q You haven't talked tohim about it? A I don't know. 3564 WATER PCB-SD0000075699 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Would you expect in 1949 that there would be the ability to measure down to one part per million of DDT? A I don't know enough about the analysis of DDT to comment. I just don't know. Q If your company wanted to find out if -- Strike that. There was no one attempting to find out at Monsanto whether or not PCBs were getting into living things -- A That's true. Q -- until 1969. That is true, isn't it? A That is true for thousands of chemicals. Q That's true for PCBs? A Yes. Q That's the subject of this case? A Including PCB, yes, sir. Q But it was also true that there was -- it was known that chlorinated hydrocarbons had the potential to get into living tissue, that's also true, isn't it? A I wouldn't say that, no. DDT was demonstrated. I don't know of any otherthat was demonstrated. Q DDE? A DDE is -- Q Is a derivative? A -- a derivative of the DDT, yes, sir. Q There's a whole list of them. They show up in one of your drawings, molecular drawings in one of your 3565 WATER PCB-SD0000075700 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reports. Do you recall those dieldrin and all of those. MR. RUNNING: Well, Your Honor, I object to the question. We'll stipulate that that's a list of pesticides, but if he's implying through the question that all those pesticides were identified in the sixties, he ought to ask it, not ask it separately. THE COURT: I think the issue is not what you just indicated, but rather whether or not there was methodology available at the time PCBs were marketed to so determine whether or not they bioaccumulated in the environment. I think that's what he's getting around to. MR. CARLSON: Q Dieldrin is a chlorinated hydrocarbon? A Yes. Q And it was studied in the fifties to see whether or not it would accumulate in animals? A I don't know. Q Let me ask you another series of questions regarding the same subject. If Monsanto had wanted to determine whether or not PCBs accumulated in fish swimming in water where PCBs had been disbursed, that could have been done as early as the 1940s. That's true, isn't it? A No, it's not. 3566 WATER PCB-SD0000075701  1 Q Well, if you put your fish into a body of water that is 2 contaminated with PCBs, you can then take those fish and 3 extract the livers, right? 4 A Yes. 5 Q And you can take the livers of these fish, and you can 6 7 do the simple chloracne test that was being done in the 1940s to see whether or not PCBs were present? 8 A I don't understand the reference to the chloracne test. 9 Q Well, could you take the extracts from those livers, and 10 remember how they used to put them on bunny ears to see 11 whether or not outbreak of chloracne would occur? 12 A I'm aware of the method whereby a chemical is wiped on 13 rabbit ears to see the effect. I don't know about this 14 liver extraction. I've never heard that before. 15 Q You weren't here when Dr. Peteson testified? 16 A I was not. 17 Q The fact of the matter is that prior to 1968, knowing 18 19 that at least in some respects your product was in the environment, you had done no enviornmental testing? 20 A Your reference to "knowing that it was in the 21 22 environment" puzzles me. I don't know what you mean by that. 23 Q Let me go into it just one different way. 24 25 In the middle 1970s, if your company was going to release a new chemical for use, there was a specific 3567 t WATER PCB-SD0000075702 I 1 2 3 *4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 I 19 20 21 * 22 23 24 25 protocol that had to be followed for environment testing before that product was released? MR. RUNNING: Your Honor, I object. We've been through this before. I object on grounds of relevance. THE COURT: You mean repetitiveness? MR. RUNNING: And repetitive -- well, both. I'll add that as well. This has been covered before. - And if he he's getting into the subject in the mid-seventies, the relevance objection also. THE COURT: I may be wrong, Mr. Carlson, but I I think we've gone over this before. MR. CARLSON: I think I probably have to explain to you this last series of questions out of the presence of the jury. THE COURT: Okay. (Whereupon, the following was had in chambers outside the presence of the jury.) THE COURT: Let the record reflect The Court is in chambers relative to the reasons why we came in here as explained by Mr. Carlson. MR. CARLSON: I believe it's '75 that was the date of your environmental or your testing protocol, although I can stand to be corrected on that. There was a remedial measure taken by this chemical company so 3568 I WATER PCB-SD0000075703 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that future chemicals used would be, would go through a variety of enviornmental tests before release. That's something this witness has indicated that these folks did not do with regards to this chemical. Their defense, I think, being nobody else did it; we didn't have to do it. But it does show that this company is aware of the necessity of doing that kind of testing. This is not TSCA, that was their own internal test protocol that was developed. I still think that TSCA is an appropriate subject, because the length between TSCA and environmental testing requirements and failure of the chemical industry to do that kind of work, as Mr. Papageorge apparently has been telling us, there is legislation passed to meet the need caused by the chemical companies in the first place, including Monsanto. But this particular line of questioning has to do with this specific test protocol that the company developed so that they would not have, so that they would premarket test for environmental impact before manufacturing and selling. MR. RUNNING: Your Honor, there's no dispute that by 1970, '71 environmental testing of this type was feasible and it was done by Monsanto. And Mr. Carlson has established for the Pydraul 312-A product the testing was done simultaneously with the introduction of 3569 WATER PCB-SD0000075704 I >1 2 3 >4 5 6 7 8 9' 10 11 12 13 14 15 16 17 18 I 19 20 21 22 23 24 25 the product, and once the test results came in and were negative or were adverse the product was taken off the market. He's established the feasibility of the testing. There is no dispute about that. Now, what he's trying to get.at now is there is a small, a short memo that begins "an environmental testing program in 1975," and then there was a manual set up, I believe, in the next year or two years later when the TSCA regulations came into effect. He can't be offering that evidence to prove feasibility, because he already established it. So the line of cases, including the Chart case, are not applicable. That's, you know, he has gotten at the subsequent action in this case, and that is the testing that was done while the product was already out on the market. The remoteness in time, that's obvious here. We're talking about a situation where internal policies were set up in 1975, three years after the PCT product was taken off the market diminishes the probative value of that subject to nil, particularly since it's repetitive and redundant. Mr. Carlson has made his point. There is no dispute in '71 and '72 the testing could be done, and Monsanto did it. Mr. Carlson can make his arguments, as he's attempted to do, that it should have been done in 3570 WATER PCB-SD0000075705  1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the sixties. Mr. Papageorge's point about feasibility will have to be weighed by the jury. But to show that Monsanto knew the testing could be done in '75 is just totally irrelevant, because he already proved it can be done earlier. MR. CARLSON: Just one point. MR. RUNNING: It was done earlier. MR. CARLSON: Just one point. With regards to terphenyl testing that was done, to my recollection that was only biodegradation studies. That's what you introduced into evidence. MR. RUNNING: There are also chronic feeding studies done for PCB and PCT. That's what you're talking about. MR. CARLSON: The test protocol that was developed to meet these kinds of problems has to with testing of fish, of birds, of the eggshell thinness, all of the things that this company could have done earlier. I think it certainly shows that this is the kind of protocol that should be in place premarket release of chemicals or for historic chemicals at some point in time when you have a reason to know that there may be a problem. MR. RUNNING: The chronic feeding studies that were started in 1968 involved three species, chickens, 3571 WATER PCB-SD0000075706 1 2 3 4 5 6 7 8 9 io 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rats and beagle dogs. Now, if you're saying in '75 we expanded the program, that may be true. Maybe we studied fish, but the point -- you've established the point that testing was done by Monsanto beginning in '68. There is a dispute between Dr. Peteson and Mr. Papageorge over whether in the early sixties that testing was feasible. And you've exhausted that subject. And to get into 1975 events when this product was not on the market after the second quarter of '72 is not going to shed any probative light on this case, and is instead going to be prejudicial, because it's going to discourage companies from taking remedial measures. The Chart case addresses that concern, but overrides it, because in that case, and in cases like that, there are disputes about the feasibility of the remedial measures. In this case there's no dispute about the remedial measures. You've gotten into evidence that it was done. MR. CARLSON: General Motors did not dispute the feasibility of the test. As a matter of fact, the Chart case is what took us beyond the realm of the federal rules. MR. RUNNING: In the Chart case it went beyond strict liability to negligence. MR. CARLSON: My point is this. There's a 3572 WATER PCB-SD0000075707  1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 ig 20 21 22 23 24 25 specific protocol that's set up and looks at toxicity to fish, to invertebrates in the water, to soil buildup, and there's a nice little checklist. That same checklist could have been used and developed, you know, prior to the selling of this product to my client. And I think I should be entitled to go through those items with this witness to explore that information, because it could have been and it wasn't. I guess that's all we have to say, or at least that's all I have to say. THE COURT: I agree with Mr. Carlson. I don't disagree with some of the analyses made by Mr. Running on the Chart v. General Motors case, but I have some other problems with that case that are unrelated to the issue here. But I think Mr. Running is correct in that he's already shown that this testing could have been done prior to the marketing of this product that was sold to the plaintiff, and he's admitted, in effect, both from a PCB and a PCT standpoint they didn't do it. MR. RUNNING: As to the PCT products is what I was referring to. Your Honor. THE COURT: Well, they didn't do it for them either. As soon as they got reports from the Jensen thing in 1965 or '66 they started to do a few things, but they went ahead and marketed the product anyway. MR. RUNNING: Your Honor, it was already on 3573 WATER PCB-SD0000075708 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 ig 20 21 22 23 24 25 the market though. I mean, the question is Mr. Carlson is getting into premarking testing, and our point is the product had been on the market for fifteen years in 1965 or '67. MR. CARLSON: That's true. The real question is as to whether they could have developed some kind of a protocol based upon the technology that was available at the time in question. MR. RUNNING: Your Honor, the 1975 policy is not going to shed light on that issue. That's my objection. THE COURT: Well, that's a matter of argument. Okay. MR. McDEVITT: Judge, when he says "'time in question, ' what time in question are we talking about? When they developed the product, because that's 1951. Is that the time in question? THE COURT: He already said the technology was not available in those days. MR. McDEVITT: I know. Okay. MR. CARLSON: For some of those kinds of tests. MR. McDEVITT: This is premarket developing, and the question has to go back to '51 then, because that's when the product was first marketed. 3574 WATER PCB-SD0000075709  1 2 3 4 5 6 7 8 9 10 11 12 * 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. PENDERGAST: Well, Joe -- MR. McDEVITT: I just want to find out what time in question we're talking about. MR. CARLSON: I will develop the testimony, I think, to your satisfaction. I will develop the testimony to your satisfaction. (Change in reporters.) 3575 WATER PCB-SD0000075710 1 *1 2 3 4 5 6 7Q 8 9 10 11 12 * 13 14 A 15 Q 16 17 A 18 Q 19 20 21 22 A 23 24 Q 25 A (Whereupon, the following proceedings were had in the presence of the jury.) MR. CARLSON: We have been in there so long, I sometimes forget where we are, sir. I will try to -- All right. MR. CARLSON: I wanted to discuss with you the concept of whether or not a protocol could have been developed sometime prior to 197' -- 1965 for testing products for their environmental impact, as a subject matter. Certainly there have been developments in technology since 1965 regarding ability to analyze chemicals and those kinds of things? Regarding what? The ability to analyze the presence of chemicals and that kind of information? Yes, and that's continuing, um-hum. Right. It is true, sir, that -- Do you recall -- Do you -- The company sometime back in the '30s had put some PCBs on the ground, I think down in Florida; do you recall that? I recall a test that was conducted. The best I recall, it was in the '50s. Okay. I don't recall the 1930s. 3576 WATER PCB-SD0000075711 I 1 IQ 2 3A * 4Q 5 6 *7 8A 9Q * 10 11 12 A * 13 14 Q 15 * 16 17 18 t *19 A 20 21 *22 23 24 *25 Do you recall that 30 years later the PCBs that were on the ground were still there? I do. The company, for products that were on the market in the early 1960s, could have addressed the question of whether or not there were going to be any impacts on the environment as a subject; couldn't it? Do -- Did you say 1960s? That's right. You could have addressed the question of whether or not they were going to cause some impact on the environment? The studies that were undertaken in the 1960s were limited to animal testing. But you could have -- you could have in the early 1960s done studies to see whether or not the PCBs were going to have some impact on the environment to which they were being discharged? That is true; isn't it? Just as it was done with DDT? If you remember, I believe I discussed with you the attempt by Monsanto representatives to get guidance from federal agencies as to the appropriate testing. The federal agencies were not able to guide Monsanto, so Monsanto was forced to use the tests that were in place for food additive testing to help determine and understand the PCBs. 3577 WATER PCB-SD0000075712 " 1Q 2 3A ^4 5 6 * 7Q 8 9 ^ 10 A 11 Q 12 13 A 14 Q 15 A 16 Q 17 18 19 20 21 A ^ 22 23 24 25 Q But your company didn't try to do any of this? You didn't even try to do this until the late 1960s? Well, prior to that that kind of testing was not done by anybody, and proposing such a test would not have been realistic, nor would it have been perceived as rational even. It just -- Nobody does it. The chemical industry didn't do it, the industrial chemical industry didn't do it? That's true; isn't it? True. But it was being done in the agricultural chemical industry? And in the drugindustry. Right. Those two, that's it. And you folks knew that your product to some extent was getting into the environment but chose not to do the same kinds of tests that were being done in the agricultural industry when their products were in the environment? That's also true; isn't it? The amount entering the environment was never perceived to be of the magnitude that required any special attention other than normally is given industrial chemicals. The perception that you had, though,was that you 3578 WATER PCB-SD0000075713  *i 2 3A * 4Q 5 6 * 7A 8 9Q * 10 11 A 12 Q 13 A 14 15 Q * 16 17 A 18 Q *19 A 20 21 *22 23 24 25 were making millions of pounds of this stuff a year, right? That's true, and they were in steel tanks. But you knew that for replacement hydraulic fluids, for example, that they were being sold as make-up fluids? Well, that doesn't mean that the material that was removed from the unit ended up in a river and lake. And you knew that it was being used to manufacture plasticizers that were in the environment? We're talking now about something like a paint? That's right. Yeah. The amount considered -- was considered to be something nature could cope with. But you didn't do the studies to see if nature could in fact cope? There were no studies. That's right? I don't think there are any today. MR. CARLSON: That's all I have. Thank you very much. THE COURT: That's the end of cross? MR. CARLSON: Yes. THE COURT: Just a second. All right. Redirect. 3579 WATER PCB-SD0000075714 *1 2 3Q *4 5A 6Q * 7A 8 9 * 10 11 12 * 13 14 Q 15 * 16 A 17 18 Q * 19 20 A 21 Q * 22 A 23 Q 24 * 25 REDIRECT EXAMINATION MR. RUNNING: Mr. Papageorge, you mentioned that DDT was a broadcast chemical? I did. What does that mean again? I use the term "broadcast" to indicate that it's widely spread to do the job it was intended to do, and it includes such things as spraying from mosquito fogging machines that run down the neighborhood street, or the aircraft that dusts the fields with a combination of the pesticide and some other materials. And the Department of Agriculture was concerned about the spraying of pesticides on crops? Well, they were concerned about any side effects that this use or method of dispersal might cause. And dieldrin was another pesticide that was sprayed on crops and in swamps, and so on and so forth? That's right. And there were others? Oh, yes, many others. And did the Department of Agriculture set up requirements for the testing of those pesticides? At some point in time? 3580 WATER PCB-SD0000075715 i 1A 2 3 4Q 5 6 7 8A 9 10 11 12 13 Q 14 15 A 16 Q 17 18 19 A 20 Q 21 22 23 24 A 25 Q There were requirements. I don't recall the series of tests required, but there are some testing results that are required before the product is registered. Why didn't Monsanto just do the same kind of testing for broadcast pesticides that Mr. Carlson was asking about for a product such as PCB-based Pydraul that was used in hydraulic lines? We never perceived that Pydrauls would be dispersed the way a pesticide is. We visualized it as being in systems, we visualized that some care is taken in controlling it. The two are not similar in any way, the two uses. Did you ever plan to put Pydraul PCB-based hydraulic fluid in airplanes and spray it on the fields? Oh, no, no. Did you ever plan to take Pydraul PCBs-based hydraulic fluid and spray it over swamps to kill mosquitos? No. No. Mr. Carlson asked you about steps that were taken to persuade Therminol customers to return PCB-based heat transfer fluids to Monsanto for incineration; do you recall those questions? I do. Why did Monsanto initiate the Therminol conversion 3581 WATER PCB-SD0000075716  1 2 3A 4 5 6 7 8 9 10 Q 11 12 13 14 15 16 17 18 19 20 21 22 23 Q 24 25 program, which is what it was identified as in the document that Mr. Carlson showed you? It was initiated because of Monsanto's concern that systems that used Therminol, of the PCB-type Therminol, in food processing or in preparing such things as packaging and adhesives and printing inks, and the like, that would eventually come in contact with food, we wanted to make certain that the entry of PCBs into human and animal feed was prevented. I just want to make sure we can visualize how these heat transfer fluids were used. I am going to draw a very crude diagram, Mr. Papageorge. MR. CARLSON: Well, I don't think he can do that without using the witness. MR. RUNNING: Well, I'll try. THE COURT: I see nothing wrong with the lawyer making a diagram as long as the jury is well aware of who is doing it. MR. CARLSON: Okay. MR. RUNNING: Okay. I don't think there is any dispute on this. MR. RUNNING: I have drawn a tank, just a crude box, and let's assume inside that there's frying oil for potato chips, Mr. Papageorge. 3582 WATER PCB-SD0000075717 f 1A 2Q 3 4 5A 6Q 7A 8Q 9 10 A 11 Q 12 *13 A 14 15 Q 16 17 18 19 20 21 *22 A 23 24 Q *25 A All right. We'll just draw little waves to show the top of the oil. And I am going to draw a pipe. Do you see I have made a very crude attempt at a coiled pipe -- I do. -- Mr. Papageorge? I do. Is this a crude schematic of how -- Let me just -- Do you see this coiled pipe that I have drawn in red? I do. Would heat transfer fluids play a role in such a system? The hot heat transfer fluid would be inside that pipe. All right. I'll write, "Heat Transfer Fluid." Now, I take it -- Where would this pipe go back? I am showing the coil system where we have got the frying oil, where we are going to put in the sliced potatoes and turn them into potato chips. Where would -- Would there be some sort of heating unit away from the system? Well, there would be a heating unit, but generally you would have a collection tank. Okay. And from that tank it is pumped through a heating 3583 i WATER PCB-SD0000075718  1 2 3Q *4 5 6A * 7Q 8 9 *10 A 11 Q 12 *13 A 14 Q 15 * 16 A 17 18 *19 Q 20 21 A *22 Q 23 24 A *25 Q unit. The heating unit is heated either by burning gas or oil. Okay. So we have got a collection tank, and then we'll just say, "Plus Heating Unit." Okay. So where -- All right. -- where it is, the piping is, isn't that important. Okay. Is this a crude but still accurate depiction of how a heat transfer fluid might work? That's one* way. Okay. Why would -- And let's assume now that the heat transfer fluid has PCBs in it. All right. Would there be any special risks associated with PCBs being in heat transfer fluids? Certainly. The coil inside the tank could spring a leak, and the PCB-containing fluid could enter into the frying oil, contaminating the potato chips. ) Was Monsanto indifferent to this danger after the problems with PCBs were identified? Certainly not. Is this situation at all comparable to having a leak on a floor of a die casting plant? Oh, no. No. Why not? Why aren't they the same, Mr. Papageorge? 3584 WATER PCB-SD0000075719  1A 2 3 4 5Q 6 7A 8Q 9A *10 Q 11 A 12 *13 Q 14 A 15 Q *16 A 17 Q 18 *19 A 20 Q 21 A *22 Q 23 24 *25 A Well, contaminating of food is certainly much different in terms of risk to human beings, for example, than the PCB-type oil on the floor of a factory. The exposure risks are entirely different. And, in fact, Monsanto called the customers who had this type of PCB fluid in their systems; didn't they? Certainly. Picked up the phone and called them? Yes. What else did they do? They offered them all kinds of help in converting their system. Offered to incinerate? Incinerate. Offered financial incentives to get them to do that? Yes. And had repeated follow-up calls from field representatives? Correct. Monsanto was concerned about this problem; wasn't it? Very much. Is the same risk as this frying oil risk posed by a leak in a hydraulic -- in a hydraulic line onto a die casting floor? Oh, no. 3585 WATER PCB-SD0000075720 1 IQ 2 3A 4Q 5 6A 7Q 8 9 10 11 12 Q *13 14 A 15 *16 Q 17 18 A *19 Q 20 21 A *22 Q 23 A 24 Q *25 Did Monsanto gauge its actions appropriately, correspondingly? Certainly. I think they did. Okay. Mr. Papageorge -- You can go ahead and sit down. (Witness complies.) Mr. Papageorge, you have been with me for the past week or so, and we were in a deposition together. Do I ever make mistakes? THE COURT: What a question. MR. RUNNING: Don't identify them all. Just say whether I make one or two. We all make mistakes. We're human. I can't think of a specific example. I'll give you a specific example right new. You see Plaintiff's Exhibit 533? I do. Do you know who the damn fool was who signed this thing? No, I don't. Who signed it? Looks like you did, Mr. Running. Okay. Did I make a mistake proofreading this page that Mr. Carlson showed you? I am going to refer you WATER PCB-SD0000075721 1 2 3A 4Q 5 6A 7Q 8 9 * 10 11 12 A l3 Q 14 A 15 Q 16 A 17 Q 18 19 20 21 22 23 24 25 to the line for Pydraul 312, which says it was last sold in July of 1974. That date surprised me. When was -- When was Pydraul 312 reformulated, just for the record? Early '71. Do you recall that Mr. Carlson yesterday afternoon put up on the screen the mailing labels for the first two letters that were sent to Stroh, the mailing label for February of 1970 and the mailing label for August, 1970? I recall. Do you recall that? I recall it. Do you recall the mailing labels were identical? They appeared to be, um-hum. Do you recall explaining in your direct examination that there were many copies made of a whole page of addresses when these mailing lists were first performed, put together? MR. CARLSON: Wait. THE WITNESS: I did say that. MR. RUNNING: Referring to Page 2686 of trial testimony. MR. RUNNING: 3587 WATER PCB-SD0000075722 1Q 2 3 4A 5Q 6A 8 9 10 11 12 Q * 13 14 15 * 16 17 18 Q 19 20 21 * 22 23 24 25 Q Mr. Papageorge, were you surprised to see that the mailing labels were identical for the first two letters sent out? No. Why not? Why wasn't that shocking to you? Well, it took such a great effort to prepare the initial mailing list, but once we had it for the first mailing, it was much more efficient to use that same mailing document, the record that was kept of who got the mailing, and use it to prepare the next set of labels for the next mailing. You just made multiple copies of that list, and you used it for the first mailing; is that right? MR. CARLSON: That's objected to. It's leading. Your Honor. THE COURT: It is. MR. RUNNING: You made multiple copies of the list when it was first prepared; is that right? MR. CARLSON: Objected to as leading. THE COURT: Sustained. MR. RUNNING: Your Honor, this has already been in the record. MR. RUNNING: How many copies did you -- 3588 WATER PCB-SD0000075723 8 9 *10 Q 11 12 *13 A 14 15 *16 17 18 *19 20 Q 21 *22 A 23 24 *25 MR. RUNNING: He already testified it was just summary. THE COURT: First of all -- MR. RUNNING: I'll rephrase the question. THE COURT: -- if it's already in the record, it's repetitive. MR. RUNNING: Well -- There has been a point made about it, and I want to resolve it. MR. RUNNING: Mr. Papageorge, how many copies were made of these mailings labels when the effort went into the first compilation of the mailing labels? Was it just one? It was certainly more than one. It was one intended for the record, the perpetual record. There were many copies made to be used by the people involved with the mailing, either as a checklist or to be used later to transfer onto another set of labels with the adhesive for the next mailing, to prevent all that typing, the repetition of all the typing. Why didn't you just go to your word processor and just type in to copy a new set of labels? I wish we had word processors then. This is -- Remember, we are still working out of records in shoe boxes almost. It was not as sophisticated as today's equipment. 3589 i WATER PCB-SD0000075724  1Q 2 3A 4Q 5 6 *7 8 9 *10 11 Q 12 *13 14 A 15 Q *16 17 18 A *19 20 Q 21 A *22 23 24 Q *25 There weren't too many word processors in 1970, were there? No, there weren't. There weren't any. THE COURT: Are you testifying now? MR. CARLSON: Are you testifying? MR. RUNNING: Yeah, I'll testify to that. MR. CARLSON: The way you testified about some other things? MR. RUNNING: Mr. Papageorge, do you recall Mr. Carlson drawing attention to the fact that the Monsanto 1988 annual report is titled, "The Strategy Is Working"? I do recall that. Does Monsanto have some secret strategy that it is not telling the world about that's been working for the past couple years? There are many strategies in any big corporation. I-- Is it evil to have strategies? No. That's -- That's what businesses are built around. Any program has a strategy that guides it, not just businesses. Is Monsanto ashamed of the strategies that are on Page 5 of the annual report for 1988? 3590 I WATER PCB-SD0000075725 1A 2Q 3 4 5A 6Q 7 8A 9Q *10 A 11 Q 12 *13 A 14 Q 15 A * 16 Q 17 18 * 19 A 20 Q 21 A *22 Q 23 24 A *25 Q Certainly not. Does the president of Monsanto -- at least the president in 1988 -- does he describe those strategies in more detail on Page 5? He does. Does he refer in the third paragraph on Page 5 to "impressive productivity gains"? He does. Is there anything wrong with productivity gains? Oh, no. It's essential. In the next paragraph it talks about research and development; doesn't it? Yes. Anything wrong with that? Certainly not. And then in the next paragraph it talks about ventures to complement research as routes to new products"; is that right? That's right. Anything wrong with developing new products? No. In the next paragraph it talks about developing the global economy and global markets; is that right? That is right. It specifically talks about Korea and Brazil? 3591 WATER PCB-SD0000075726 1A 2Q 3A 4Q 5 6 7 8 9A 10 Q 11 12 I 13 14 15 ' 16 17 18 119 20 A 21 Q *22 23 24 *25 It does. Anything wrong with expanding to new markets? No. And the next paragraph reads as follows. "Earning the right to operate is basic to our corporate strategy. Hal Corbett points to Monsanto's achievements in environmental stewardship." Is there anything wrong with that, Mr. Papageorge? There is not. Then he summarizes these strategies by saying, "They represent numerous instances of thousands of Monsanto employees accepting the challenge of greatness." "These cases did show the strategy being put into practice by Monsanto people around the world, excited and determined people who will place Monsanto among the handful of the world's great industrial enterprises." Is there anything wrong with that, Mr. Papageorge? Not in my opinion, no. Do you recall Mr. Carlson asking you a series of questions with the premise being that Monsanto hadn't told its Pydraul 312 customers point-blank in no uncertain terms that there were PCBs in the fluid prior to the time that Pydraul 312 was reformulated? 3592 WATER PCB-SD0000075727 I 91 2A 3Q * 4A 5Q 6 *7 8 9 * 10 11 12 1 13 Q 14 15 *16 17 A 18 Q 19 20 21 A *22 Q 23 A 24 Q 25 Do you recall that series of questions? I do. And do you recall when I got up and got this chart? I do. It was during those questions. When was this -- Just again for the record, when was this label put on Pydraul 312? THE COURT: What's the number? MR. RUNNING: I am sorry, Your Honor. It's 1007. THE WITNESS: Starting in May, 1970. MR. RUNNING: And does this chart read -- I am sorry -- this sticker read, "This product contains polychlorinated biphenyls which some studies have shown may be an environmental contaminant"? It does. Now, Mr. Carlson asked you why it didn't say that the studies do show it's an environmental contaminant; do you recall that question? I do. What type of PCB was in Pydraul 312? Aroclor 1242. Were there any studies in May of 1970 that showed that Aroclor 1242 was causing damage to the 3593 WATER PCB-SD0000075728  91 2A 3Q 4 5 6A * 7Q 8 9A *10 Q 11 A 12 * 13 14 Q 15 A * 16 17 18 * 19 20 21 * 22 23 24 Q * 25 environment? No. Now, Mr. Carlson also was making a point that -- that of course this blowup wasn't actually put on the Pydraul drums; do you recall that? Not the blowup, no. And he used the black-and-white version of the label, the actual size? Yes. Can you identify Defendant's Exhibit 1007.2? This is a -- an exact label that was used starting in May, 1970, of the environmental statement -- what I call the environmental statement. This is the sticker itself? It is, um-hum. MR. RUNNING: I move for the admission of 1007.2, Your Honor. MR. CARLSON: No objection. THE COURT: So received. MR. RUNNING: I ask that this be shown to the jury. THE COURT: Sure. MR. RUNNING: Did you design this sticker to be invisible so people couldn't see it? 3594 WATER PCB-SD0000075729 1 1A 2 3Q *4 5 6 * 7A 8Q 9 * 10 A 11 Q 12 *13 A 14 Q 15 * 16 17 A 18 * 19 20 21 *22 23 24 *25 No. That's why red was selected as a high-visibility color. And just a few minutes ago, I want to clear up one point, Mr. Carlson asked you about some soil that had PCBs in it starting in the '50s and it was looked at later? Yes. Were other chemicals in that soil? Wood preservatives? Certainly, yes. Oh, many other chemicals. So this wasn't -- Was this a planned test of how PCBs react in the soil in the '50s? No. No. Now, what significance is it that there were wood preservatives in the same plot of soil that had the PCBs? The test was primarily designed to evaluate chemicals to be used as wood preservatives. There were posts that were put into the ground along with some -- many kinds of chemicals to see if these chemicals would preserve the wood, the wood wouldn't rot. PCBs, particularly Aroclor 1242, was used as a solvent for some of these wood-treating chemicals. Through the years the posts have disappeared. I don't know personally whether they 3595 WATER PCB-SD0000075730 1 2 3 4 5 6 1 7 8Q 9 10 A 11 12 Q 113 14 A 15 Q 116 17 A 18 Q 119 A 20 Q 21 1 22 A 23 24 Q *25 were taken away, or whether they rotted, or what happened. Nevertheless, they disappeared. Samples were taken of the dirt where the posts used to be, and it was determined that the Aroclor 1242 still looked like Aroclor 1242. Because there were no bacteria, there was no sunlight, there was no running water to change anything. Well, what effect -- What is a wood preservative designed to do, Mr. Papageorge? A wood preservative is designed to in essence kill off bacteria and fungus and anything that rots wood. And an example of a wood preservative is pentachlorophenol? That's a good example. Phenol. And is creosote, such as we see on railroad tracks, another? That's another example. And chromated copper arsenate is another one? They're metal types, yes. They all have one effect, and that is to kill bacteria that could rot wood; is that right? Organisms. It covers anything that could eventually rot wood. Would the presence of the wood preservatives in the soil that was -- that was studied in 1950, and then 3596 WATER PCB-SD0000075731 1 2 3A 4 5Q 6 7A 8 9 10 11 12 13 14 15 Q 16 17 18 19 20 A 21 *22 Q 23 A 24 Q 25 later, have any impact on whether or not Aroclor 1242 could be degraded in that plot? Well, certainly. It sterilized the area. There was no bacteria to act on it, on the Aroclor 1242. Is that why Aroclor 1242 didn't degrade in that test plot? Exactly, um-hum. MR. RUNNING: I have no further questions. THE COURT: Just a second. Recross. MR. CARLSON: Thank you. Just a few things. RECROSS-EXAMINATION MR. CARLSON: With regards to this PCBs on the ground back in the '50s, first of all, you could have put 1242 on the ground, just let it sit there, without any pentachlorophenol, see what happened to it; couldn't you? Well, yes, you could have, but this was a -- this is a post study. I understand that. Wood posts. I understand that. But if you wanted to put an Aroclor on the ground to see if it was going to break 3597 WATER PCB-SD0000075732 2A 3Q 4 5 6 7 8 9 10 11 Q 12 13 A 14 15 16 17 18 * 19 Q 20 A 21 22 23 up in sunlight, you certainly could have done that? In hindsight, yes. Sure. And the particular sticker that you have -- MR. CARLSON: Does Monsanto have a copy -- a real Pydraul 312 label in the courtroom? MR. RUNNING: We have a blowup. MR. CARLSON: Do you have a real one? MR. McDEVITT: Yeah. MR. CARLSON: Thank you. MR. CARLSON: Mr. McDevitt has been kind enough to share with me your Exhibit 1003.1. Is that a Pydraul 312 label? Yes. MR. CARLSON: You don't happen to have one of those not mounted on a board, do you? One of these stickers? MR. McDEVITT: No. MR. CARLSON: Okay. Your Pydraul 312 label was also red? Yes. (Switch in reporters.) 3598 WATER PCB-SD0000075733 i 1 MR. CARLSON: I would offer Exhibit 1003.1 2 into evidence. Your Honor. 3 *4 MR. RUNNING: No objection at all. THE COURT: So received. 5 MR. CARLSON: If you put red and white with 6 7 red and white it doesn't quite stand out quite so much, does it? 8 A Well, remember, this is against a black background. 9 Q Right. But if you wanted to show information that was 10 different and important you could use signal colors like 11 the black on yellow or yellow on black or some of the 12 * 13 signal oranges or those colors. THE COURT: Gentlemen, come on. Let the jury 14 evaluate. I mean, both of you guys as to what the 15 16 effect of a color is on something. Nothing wrong with the gentleman testifying as to what the background is, 17 18 19 but I think the jury is as well equipped as anyone to evaluate the visibility of certain 'colors. MR. CARLSON: Okay. 20 Q It is true, sir, if you want to draw attention to 21 22 something besides the label you can use a different color scheme as a signal if it's important information? 23 A Well, that implies the original information on the label 24 25 is not important. I think they're of equal importance. They're both the same color. The messages are both 3599 WATER PCB-SD0000075734 1 important, one is not to be considered much more 2 3 4 important than the other. Q With regards to the use of that sticker. In February of 1970 your company claims you sent Stroh a letter, and in 5 that letter it does not mention PCBs being used in the 6 312, correct? 7 A It says that the Aroclor 54 and 60 are not present in 8 the 312. 9 Q And it doesn't say that an Aroclor is and doesn't say 10 that a PCB is, that's also true? 11 A It doesn't do that, no. 12 13 Q And then you send, or then according to you, your company puts some stickers on the barrels. How do these 14 barrels get into these companies? Delivered by truck 15 16 typically? A Yes, truck deliveries on pallets, four four barrels to a 17 pallet. 18 Q And typically who is the person that has to work with 19 those barrels of oil? 20 A Well, there's the receiving dock employee, there's the 21 22 warehousing employee, there's the maintenance people that open them to introduce them into the system. 23 Q But if you wanted to let people know about PCBs in your 24 25 product, what you could do is, one of the steps taken with Therminol was to send a registered letter telling 3600 WATER PCB-SD0000075735 1 them they had PCBs in their product, isn't that true? 2 That's what you did with Therminol, isn't it? 3 A Yes, but that doesn't go to the dock worker or the P4 maintenance man. 5 Q That's right, that goes -- if you send a registered 6 7 letter that shows there's something really important that you want that person to know about, doesn't it? 8 A All that does is give Monsanto a record that the letter 9 10 was actually delivered and the delivery was acknowledged. 11 Q That wasn't done -- Strike that. Would you be kind 12 13 enough just to review Exhibit 952 with regards to the test plot? 14 A I haveread it. 15 Q While we are going through that, there is reference to 16 the test plot being created in what year? 17 A '39. 18 19 Q Okay.And then it was looked at in what year, the last time it was looked, at according to the memo? 20 A 1963. 21 Q Okay. Is that the date of the memo? 22 A The date on the memo, April 8, 1969. 23 Q And in that plot there was Aroclor 1242, 1248 and 1254? 24 A That's what it states here. 25 Q And I guess the only point, the only point I'd like to 3601 WATER PCB-SD0000075736 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 make is that -- Strike that. They could see the residue of the Aroclor fluids on the ground by virtue of what, their color, or wetness, or do you know? A I can only go by my own experience. Q Okay. A It looks like an oily dark spot. Q Okay. When -- Strike that. Would you look at the second paragraph of that letter? A I am. Q It reads, "Aroclors 1242, 1248 and 1254 were mixed in test soil (1 cubic foot per plot) at rates of application and replicate spots." Then it goes on and said, "In addition, there were additional plots with these Aroclors mixed with penta," does it not? A Yes. Q That to me reads you got one test site without penta and one test site with? A That's right. Q And the test site without penta was just straight Aroclors? A That's right. Q And the Aroclors at the time they were observed were still present without the penta acting on it? MR. RUNNING: Could I see that? 3602 WATER PCB-SD0000075737  91 2 3 *4 THE WITNESS: I don't recall the report that I got referring to the soils in which only the Aroclors were present. I do vividly recall the report in which penta had been present, and the report that the Aroclor 5 6 97 8 9 *10 that was initially added was virtually still there. MR. CARLSON: Q There is reference in the second to last paragraph, "I believe we should be asking Marsh to look into the possibility of obtaining samples for these plots for measurement of loss or degradation," correct? 11 12 *13 A That is correct. Q Was that done? A That's what -- this report, that I recall, resulted from 14 this action. 15 Q I see. Couple of other things that were mentioned by *16 Mr. Running. With regards to the mailings, you didn't 17 go back, and I think we 've established, and look at the 18 *19 mailing labels that were used for Stroh at any time, did you? 20 MR. RUNNING: Go back to the -- 21 *22 MR. CARLSON: At this company, that's right. THE WITNESS: At the time they were prepared? 23 MR. CARLSON: Or afterwards? 24 *25 MR. RUNNING: Now wait a minute. That's compound. 3603 WATER PCB-SD0000075738 1 2 3 4 5 6 7 8 9 10 11 12 * 13 14 15 * 16 17 18 19 20 21 * 22 23 24 25 MR. CARLSON: Probably is compound. So you didn't at the time the mailings went out to Stroh, or allegedly went out to Stroh, you didn't look at them? I saw mailing addresses for thousands of customers. The Stroh Die Casting Company label may well have been in there. I don't recall it any different than I recall the others. And you don't recall specifically if they used a copy of a previous mailing list on any of the other mailings or not, do you? MR. RUNNING: What do you mean "the other mailings." MR. CARLSON: Subsequent mailings. Subsequent, after February 9th of 1970. THE WITNESS: There were copies of the original typewritten address labels used in mailings in '70 and early '71. MR. CARLSON: And just bear with me a little bit. We've got four mailing labels, copies from four of your letters and they're exactly the same. I can put them up on the screen and you can see they line up exactly. We've got two other mailings that were apparently, or allegedly sent to us that show a different mailing 3604 1 WATER PCB-SD0000075739 1 label. 2 3 4 Do you have any personal explanation, that is what you know personally, as to why one mailing label was used at one time and allegedly another mailing label was 5 6 7 used at another time? MR. RUNNING: I think you should shos him the labels. 8 MR. CARLSON: Then you have to wait a second. 9 10 MR. RUNNING: Why don't you identify. Object. MR. CARLSON: Well, all right. I'll identify 11 them. 12 Q Let's take the labels from Exhibits 1011, 1009, 489 and 13 1010. If Mr. Running would like it, we'll do it. 14 MR. RUNNING: We don't dispute they're the 15 16 same. MR. CARLSON: Okay. 17 Q Then we have another series of mailings allegedly made 18 to us that have different mailing labels. Do you recall 19 that? 20 A Yes, I know, Uh-huh. 21 Q If they had this mailing label in use, then why did they 22 change? 23 MR. RUNNING: Why don't you show him the 24 25 labels? MR. CARLSON: I'm going to get -- I don't -- 3605 WATER PCB-SD0000075740 1 If you object to the form of the question, I don't have 2 any problem with that. You want to tell me what to do, 3 4 I have a problem with that. MR. RUNNING: I do object. They're addressed 5 to different people. Why doesn't he show him the label? 6 7 You can't refer in the abstract to a letter without identifying it. 8 THE COURT: Well, I may agree with both of 9 10 you, stipulation that they are different. MR. CARLSON: Okay. 11 THE COURT: But I don't disagree that the 12 13 witness ought to be shown the label. MR. CARLSON: Right. I don't either. 14 Q Now, we have Stroh Die Casting as a label that went, 15 that allegedly was used with 1018, right? 16 A Yes. 17 Q All right. Why change labels? 18 i9 MR. RUNNING: Why don't you -- the witness ought to be given the time to see the letter rather than 20 just the label. 21 22 about. THE COURT: It's only the label we're talking 23 MR. RUNNING: But it is attached to a letter, 24 25 and the question is "Why did you use a different label?" THE COURT: That's the question. 3606 WATER PCB-SD0000075741 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 * 16 17 18 i lg 20 21 * 22 23 24 25 MR. RUNNING: Okay. THE COURT: He's asking him. MR. RUNNING: As long as Mr. Papageorge knows he can look at the letter itself. THE COURT: We are not talking about the letter, we're only talking about mailing labels, that's all. MR. CARLSON: Do you know why they used different mailing labels for that particular letter? Yes, I do. What is that? Let me go back. When the first letter was sent out, it followed an awful lot of activity getting the mailing lists correct and typed. Once they were typed, that typewritten mailing list was used for at least two more mailings. As I remember it, it took care of the mailings in 1970, and if I remember correctly, there was a mailing in '71. So the labels will look the same for the first few mailings. Then there was a period of time during which we had a chance to review our customer lists and update them, and it resulted in the kind of label you have on the screen now. And then there was a further review in which, as I remember, we tried to get the address to 3607 I WATER PCB-SD0000075742 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 i 25 Q show a specific person where we had a name or the title of a position where we thought that title was appropriate at that customer's plant. I really don't want to beat this badly, but here is something that bothers me. We've got Exhibit 489, which is another letter, which in your direct testimony you did not say was sent to us. Okay? MR. RUNNING: Can I see that that? MR. CARLSON: I'm sorry. The problem I have is, we were given Exhibit 489, a letter that there was no testimony that you sent to us, along with the same darn label, and if you didn't send us the letter, why would that label be on there? Well, what I have here is a copy of a letter that was sent to the plasticizer customers of Monsanto. I thought we corrected that during deposition, that there, obviously there was some mistake in this, matching up the Stroh Die Casting Company to a plasticizer letter. Except that Mr. Craddock's letter, and ultimately I'm going to so ask you to assume, says we got that letter, February 27th letter. Well, that mistake may apparently show itself up even in Mr. Craddock's files. And the document productions that you folks have made during the course of this litigation? 3608 1 WATER PCB-SD0000075743  1 A Apparently so, otherwise you wouldn't have this. 2 Q Mr. Running asked you some questions about Therminol and 3 4 showed you a little drawing about getting into food, and Therminol did have a potential for getting directly into 5 food, right? 6 A Oh, yes. 7 Q And you knew in 1966 that PCBs in the water had also the 8 potential for getting into any fish that people may 9 catch and eat, which is also food, right? 10 A Well, it's a matter there of predicting the orders that 11 this would happen, and the amount that would show up in 12 13 the fish, and how widespread it is, and how much fish is consumed. There's an awful lot of information that was 14 lacking to make a good assessment of what could happen. 15 Q But you knew it could get into food in the last 16 analysis. That's true, isn't it? PCBs from hydraulic 17 fluid, and PCBs from your plant or PCBs anywhere in the 18 waterway could get into food? 19 A I didn't know that. 20 Q You didn't? 21 A That's why we were surprised when Dr. Jensen's work was 22 published. 23 Q Well then as of 1966 you knew it? 24 A That's right. 25 MR. CARLSON: Nothing further. Thank you very 3609 WATER PCB-SD0000075744 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 much. THE COURT: Thank you. Mr. Papageorge. Well, it's ten after. Why don't we resume at 1:45. I guess you've got another personal situation with me now. (Whereupon, the proceedings were recessed until 1:45 P.M.) 3610 WATER PCB-SD0000075745