Document M4Y44bNkqR6gaOEzkYaLBm3By

IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KEMNER, et al, Plaintiffs, VS . . MONSANTO COMPANY, Defendant. ) > > ) > . CAUSE NO. 80-L-970 ) > ) ) REPORT OF PROCEEDINGS Before the HONORABLE RICHARD P. GOLDENHERSH January 10, 1986 APPEARANCES: MR. REX CARR, Attorney at Law, and MR. JEROME SEIGFREID, Attorney at Law, On Behalf of the Plaintiffs. MR. KENNETH HEINEMAN, Attorney at Law, and MR. JOSEPH NASSIF, Attorney at Law, On Behalf of the Defendant. TRACY LYBARGER, CvS.R., R.P.R. Official Court Reporter INDEX OFFER OF PROOF i. RENATE KIMBROUGH Cross Examination . .PAGE r>- 1 BE IT REMEMBERED AND CERTIFIED, that heretofore, 2 on to-wit: January 10, 1986, the msttar as hereinbefore 3 set forth came on For hearing before the Honorable Richard 4 P. Soldenhereh, Circuit Judge in and for the Twentieth :vj5;. Judicial Circuit, State of Illinois, and the following was 5 had of record, to-wit: 7 CThe following Offer of Proof was had out of the B hearing and presence of the Jury.1 .a: THE COURT: You may be seated. Mr. Carr? 10 CONTINUED CROSS EXAMINATION n ' " -'BY M R . CARR: 12 Q Dr. Kimbrough, we were discussing the Missouri 13 Health Study yesterday. What in your judgment is the 14 number of people that would suffer from dizziness-- percen 15 tage of people? 16 A You mean in the study or in tha general popula 17 tion? IS 0 In the general population? 13 A A lot. I don't really know. 20 0 You have no idea whatsoever as to what percentage 21 of people you would expect to have dizziness in the general 22 23 A It-- no, not really. It depends on the age and-- 24 Q Doctor, the general population includes all ages. : ... 3 1 What percentage of the general population do you expect to 2 have',-dizziness? 3 A I guess almost everyone will be dizzy at soma time 4 at some point. 5 0 Doctor-- and you know that that'a n o t what I'm 6 asking you about-- I'm asking you in terms of the Missouri 7 Health Study. You asked that question; you put that 8 question in there for your people to discover whether or 9 not the people that have been exposed to dioxin havB a 10 particular sign or symptom. What percentage of people do 11 you expect to anstuer in the affirmative from the general 12 population? 13 A I didn't put that question in there. 14 Q Doctor, you testified in behalf of Monsanto here 15 earlier that you and others at CDC helped to design that IB proposal; the name of CDC is on the cover as being one of 17 the participants; I believe you said that CDC helped fund 18 it, if not fund it entirely; you are here as an expert 19 witness; you brought up the subject of the Missouri Health 20 Study in your direct testimony. I 'd like-- if you don't 21 take responsibility for it, who will take responsibility 22 for the study? 23 A I helped design the study, as you correctly 24 stated, but I 'm not responsible for each and every question 1 on that questionnaire. UJhan you work in a group and design s something, you make cartain suggestions, and then you 3 finally arrive at a protocol by consensus. But, that doesn't mean that I have to agree with every question that's s on this questionnaire or that I feel that every question is .6 ; important. i-% But, whan you said you arrived at a consensus, you 8 did indeed participate in the proposal and you did, includ 9 ing you, arrive at a concensus. Now, that question is in 10 there; and I know that you discussed it with the people 11 before it was put in there; I know you considered it, ie you're that type of scientist; and I 'm sure that you had in 13 your mind at that time what you would expect the general 14 population to reveal would be a symptom of dizziness when 15 asked such a question. Now, I'm now asking you today what 16 percentage of the population do you believe would have 17 dizziness? 18 A I believe that most people at some point have 13 dizziness, and I don't think it was a good question. SO Q Doctor, I know; w e 've said that. SI A And that was my opinion-- SS Q But that question, if you put in in expecting S3 that answer, then thare would be no point in putting it in, S4 because the answer would be 100 percent. What did you " 5 .. 1 expect to get a normal percentage of population to answer 2 in the framework that you asked the question designed to 3 discover health effects? 4 A In my opinion it was a meaningless question-. That 5 was my personal opinion. 6 Q Now, Doctor, if you expect a hundred percent of 7 the people to have dizziness to answer in the affirmative, e then it would be revealing indeed that only 15 percent with 9 a high risk exposure were dizzy. That would suggest to you 10 as a scientist, wouldn't it, ma'am, that dioxin has an ii effect upon the body that would prevent a person from being 12 dizzy? . 13 A No^. 14 Oh, it wouldn't? If you expect a hundred percent 15 affirmative answers, and you only got 15 percent? ..is; A It just reveals that maybe people answered the 17 question in sorts way where they only considered dizziness 18 of a profound dizziness, or I don't know how--it's a very 19 soft assessment of a health effect. 20 Q Doctor, that may be, but it was one of the factors 21 you used to assess health effects. And by "you" I mean you 22 as a participant in this Missouri Heath Study. And, there 23 fore, I'm obligated to ask you about it. If you say today 24 all of these questions were meaningless, then what you are .6 1 telling me is that your health study was meaningless and ;-f that CDC participated in a meaningless event or scientific 3 endeavor, one that was designed from the outset to show 4 nothing and designed to tall the world there's nothing} 5 wrong with anybody. We at the CDC, we at the Missouri 6 Public Health System, and we at St. Joseph's Hospital 7 conducted this great survey of the exposed people, and we 8 find nothing wrong with them; we find them to have no prob 9 lems that are not existent in the general population. It 10 sounds to me like, and I submit to you that you can either 11 disagree or agree with this statement of mine, it sounds to 12 me like you created a phony study for the purpose of a 13 publicity and taking away from the effects of dioxin. Is 14 that correct, Dr. Kimbrough? IS MR. HEINEMAN: Object to the speech, your Honor, 16 and move that it be stricken as not part of the question. 17 -improper. 18 THE COURT: It was proper--in viewing the 19 question in it's totality, it's a proper question in cross SO examination. Overruled. 21 A I did not say that all of these questions were 22; meaningless. I just simply said that dizziness was 23 something that occurred commonly in the general popu 24 lation , and that if you Just taka one question like that out 1 of context without evaluating all of the other things that me did in this study that--it just doesn't mean anything. 3 And to ask me what I think the prevalence of this would be 4 in the general population really all by itself is meaning 5 less . It depends on how persistent the dizziness is with 6 somebody that has this symptom. You then have to examine \ 7 them to see if there are other things wrong with them. But, 8 just by itself-- people every once in a while when they get 9 up very rapidly out of bad, they may feel that they are 10 slightly dizzy early in the morning, or they may have a 11 hangover, or they may have some dizziness. So, it's 12 something that can be vary common. But, in the context of 13 all of the other things, it may mean something. That's why 14. we ask these questions. And we partly ask the questions, 15 because at the moment we really don't know--- that was also 16 the problem with the design of the Ranchand Study--what the 17 health effects are that might be caused by TCDB. It's like 18 throwing out a net and then seeing whether there are 19 differences and then trying to interpret that and see 20 whether there actually may be some health effects that may 21 be associated with this type of exposure. That's what 22 epidemiology Gf-- this type of epidemiology is all about when 23 you don't do clinical trials. 24 Q Doctor, I suggest you didn't answer the question Q 1 that I posed to you. bias this study dssigned simply to e placate the public? That is, to let the public believe 3 that you were doing something about the dioxin problem and 4 then ask meaningless questions and corns up with meaning 5 less means taking-- lumping all the laboratory Findings 6 together and getting just means? Was it For the purpose of 7 letting the public believe that you mere doing something 8 about the dioxin problem and then announcing the results 9 that there's no difference between the two groups exposed; 10 they all have ailments that everybody has; and therefore 11 dioxin doesn't cause any problems? 12 A No, dF course not. We tried the best we could. 13 What I'm trying to explain to you that there are limi 14 tations to what is called observational epidemiology, and 15 you are trying to misrepresent and misinterpret our work. IS Doctor, what I've asked you, every question that 17 I've asked you about so far that you submitted to the IB people, every single one that I've asked you about so far 19 you've in effect said is meaningless because you can have 20 swelling in the hands at any time in your life, because you 21 can have-- everybody has headache, because everybody has 22 Joint and muscle aches, because everybody has dizziness, 23 because everybody has a peripheral neuropathy. These 24 questions then, every single time you've answered you've 1 said in effect that question--;is meaningless; isn't that 2 correct? :;3\: HR. HEINEMAN: Objection, your Honor, mischar 4 ecterizBS the witness' testimony. THE COURT: Overruled. B Q Isn't that correct? :;7i; .'; A NO. . B Q Which question did you say was meaningful? 3 A For instance, I said that losing weight, ten 10 pounds-- over ten pounds of weight-- 11 Q I do stand corrected;* -you did say that was mean 12 ingful, 13 A -- was important. And I never said that any of 14 these questions wers entirely meaningless. They are only 15 meaningless if you take them out of context; and that's what 16 you are doing. See, you have to understand and you have to 17 ''.evaluate all of this together rather than just saying-- 18 Q Now, Doctor, before we can evaluate it all to 13 gether , we have to arrive at what was found and th basis 20 for determining the validity of what was found. And I do 21 agree that you did say the weight loss had meaning, but all 22 the other questions thus far you've said have no meaning, 23 that they can't in effect use it to asses the health 24 oonditions Of these people; isn't that correct? 10 1 A I didn't say that they had no meaning; 1 said that 2 this was something that was vary prevalent in the general 3 population and it utas difficult to interpret That's what 4 I said. 5 Q Well, you didn't interpret it at all? 6 A Or that's what I tried to say anyway. 7 Q You gave no significance to the fact that 36 and B 41 percent of the peopls respectively had persistent 3 headaches, did you, ma'am, because you said what-- a hun 10 dred percent of the population-- was that the one you said a 11 hundred percent have haadachss-- 50 percent of the population 12 have headaches; isn't that right, m a 'am? 13 A We ware talking about numbers hers. 14 Q Isn't that what you said? 15 A We weren't talking about headaches in general. 16 Q Isn't that what you said, ma'am? 17 A I said that headache is very prevalent in the 10 general population. 19 Q No, you said that half the people or better have 20 headaches? 21 A Yes.- 22 Q Twenty-five percent of the other people have 23 swollen legs, swollen limbs, swollen fingers? 24 A That's the way it is. I mean, there's nothing I 1 cart do about it. 2 Q Well, Dr. Kimbrough* I'm not asking whether or mot 3 that's the way it is; I submit to you that that's a flip 4 answer that you've given to me and not one that's meant to ..S' enlighten me. Dr. Kimbrough, I 'm asking you specifically 6 as to,the meaning of these questions and as to the meaning 7 of this study. I would appreciate if you would respond 8 accordingly. Doctor-- 8 MR. HEINEMAN: Object to the speech, your Honor, 10 and move it be stricken. 11 THE COURT: Overruled. 12 Q Doctor, what percent of the population do you 13 believe will have loss of sensation in their extremities in 14 the context of the study that was conducted in the way the IS question was posed for the purpose of using and putting that 16 question in, what psrcsnt of the people in the general pop 17 ulation would you expect to answer that they had loss of IS sensation in the extremities? 13 A What do you mean by loss of sensation? 20 Q Whatever you meant in the question that you put to 21 the people? 22 A I mean, are they totally numb? 23 Q I'm Sorry, whatever you meant, ma'am. I don't 24 know what you meant; you were the ones that designed the ''I; study, 1 did not ; it is your question, not mins. Whatever :;2\ you expected to get as a response. What response did you 3 expect to get From the general unexposed population when 4 you asked that question? 5 ft There will be some people who will report occa 5 sional loss of sensation-- 7 Doctor, to save some-- are you going to give me a S percentage? 9 ft Yea * 10 All right. 11 ft Up to somewhere between 25 and 30 percent. On the ie other hand, total loss of sensation and inability to feel 13 hot and cold in addition to that would be a percentage that 14 would be around five or less. 15 Well-- and in what context did you ask th ques 15 tion? Which one of those parameters controlled the 17 question you asked? 18 .''.ft; In this case, it was the broader question, as I 19 remember. I would have to go back to the questionnaire. SO Q So,. you would sxpect.what-- SO percent of: ths-21 '.':'ft'. No, I said around 25 percent. SS Q Twenty-Five percent of the people to answer in the S3 .affirmative?' SH ft For the broader question, which is not total inca- 13 V;l; pacity. But, I mould have to go back to the questionnaire 2 to sort out what additional questions there were to determine whether we ware dealing with the total loss and 4 whether you could actually gather that from the question 5; naire. I don't remember. 6 Q And you don't have the questionnaire here, so I 7 can't really examine you on that either; can I? e 8 No. It's really a study, as you correctly stated, .9 done by the Missouri State Health Department. And that's 10 where the questionnaires and all that would be. 11 Q Doctor, if you would expect 25 percent to have 12 these kind of problems, and you only end up with 20 percent, 13 that would indicate that dioxin is doing something to the 1H nervous system as well; wouldn't it? 15 A I'm sorry, could you-- 16 Q If you expected 25 percent to answer in the 17 affirmative, and you only got 19 or 20 percent, that would 18 be significant; wouldn't it, ma'am? IS A N o . 20 Q You don't think so? 21 A No. It just depends on--you see, you are asking me 22 about the general population. 23 Q - , Yes. . ! m A And then, it depends an the age distribution and a lot of other things. ; 2,''' Doctor, you designed this study with the age in mind of that very group; did you not? ''7.'. flr Of that very group, but the general population. 5 x. Q You picked your group to mirror the general popu- ",;' lation; did you not? S-7 ' A No. Q You did not? ..;.9: ' A No, because we had a comparison group; and that's 10 why we picked-- : 11 'jp/ "\., 0 What comparison group did you have? A That's the low risk group. 13 Q The low risk group was exposed. What kind of 14 comparison group'is that? IS A Well, ue didn't think they had any exposure. 18 3 Now, Doctor, you Just got through telling me yes 17 terday that if they walked on the streets of Times Beach 18 they had exposure; did you not? Didn't you tell me that 19 yesterday? Didn't you tell me that yesterday? 20 .;"A;'-' That's what you said.. ; .' 21 Q No, that's what you said, Doctor. Did you not say that yesterday that if they walked on the streets of Times /^_x . ".'v."23 ; / i., Vs.. V'' ~: 24 Beach they had exposure? A As far as we could determine-- ^\7/ Cl Doctor, answer my question, please. Isn't that "..a, what you said yesterday? , 3 A Could we read back what I said yesterday? 4V No, because she doesn't have it. I asked you the : question if people walked on the streets of Times Beach and were included in this questionaire and in the low risk 7 group, and you said they were. I said, "Well, then they had 8 exposure; did they not?" And you said, "Yes, they did." :9; fIR. HE INEMAN: Objection, your Honor, misrepre- 10 sants the witness' testimony. 11 : THE COURT: Overruled; it does not. <T_^-. ..- . 12 Q Don't you recall that being asked? A I would have to go back to the record. It's on the 14 record, so you can clarify it. ..V IS' - Q I know it Vs in the record. But, now you are saying V IB that the people had no exposure; aren't you? ;.v;;;i"?'V'' A I'm saying that it was a low risk group, and m s -- is Q Doctor, that's not what you are saying now, that 19 they had no exposure. They did indeed have exposure in the :'/'V BO 51 low risk group, most of them; didn't they? HR. HEINEMAN: Object to the question; -interpret- ted the witness' answer; argumentative. S3 THE COURT: Not responsive; objection is properly Ov'- V-'&24 made; your objection is overruled. 16 1 A NO s ' Q Doctor, did you not say that the people in the low 3 risk group, most of them had exposure? Could you answer 4 that question directly? 5 A No. 6 Q Are you in fact answering the question saying "no"? 7 A I 'm not understanding any more where we are. B Q Doctor, did you not testify yesterday that most of 9 the people in the low risk group had some kind of exposure 10 to dioxin? 11 A I would like to go back-- 12 Q Doctor, could you answer that question directly, 13 please? 14 A As I recall the conversation, you said that they 15 walked across the street and couldn't they have had some IB exposure walking across the street. And I said yes. 1 .: 17 Q Yes. And you agreed that they lived in Times 18 Beach; did you not, m a 'am? 19 A Not all of them; some of them. SO Q All right. Mast of the people lived in these 21 contaminated areas, did they not, that were in the low risk s s group? 23 A That's the question ycu asked me yesterday, and I 24 said yes. 17 1 Q Yes. All right. Arid then, after you agreed that 2 most of the people in the low risk group lived in the :-;3; contaminated areas, I then asked you, ''Well then, if they just walked on the streets that ware sprayed with dioxin, they had exposure; didn't they, m a 'am?" ftpd you then said 6 yes; did you not, ma'am? v 7 A I think we had some-- B Excuse me, could you answer that question, because 9 that's exactly what I asked you. 10 A No, your question was slightly different. 11 0 How was it slightly different? 12 A In that they would have had to use the streets 13 sometimes; wouldn't they? 1*4 Q Yes. . 15 A And I said yes. 16 And then, if they used the streets that were 17 exposed with the dioxin, they had exposure? IB A They might have had exposure, yes. 19 Q Yes. And your answer was yes to that question; 20 correct, ma'am? 21 A Yes. 22 Q Isn't that correct? 23 .'A- '..Yes.. 2*4 All right. Then the people in the low risk group, 1 most of tha people In the low risk group had exposure to "B dioxin; did they not, ma'am? 3 A The amount of exposure-- 4 0 Could you answer that question directly, Dr. 5 Kimbrough? 6'., A There is something in toxicolgay called a respohsa 7 curve-- B MR. CARR: Your Honor, would you order the witness .a to answer that question. 10 THE COURT: Doctor, you are so ordered. The n question urns clear. You have to answer it directly. is THE WITNESS: Could I have the question again? 13 THE COURT: Could you read back the question? 14 CThs previous question was read back by the court 15 reporter, as requested.) IS A Yes. 17 Q Now, Doctor, the control group then that you used 18 here, most of the people in the control group had exposure 19 to dioxin; did they not, m a 'am? 20 A They had negligible exposure to dioxin. 21 Q Is the answer to my question yes they did have 22 exposure, but you consider it negligible? 23 8 Yes. 24 Q And most of these people that had exposure to 19 1 dioxin-- wall, you compared the group that had the exposure e with dioxin, what you considered a negligible exposure, to 3 people that you considered to have not a negligible expo 4 sure; isn't that correct, ma'am? s: A That had high exposure, yes. 6 Is the answer to my question this group in the high 7 risk group had significant exposure or at least not negligi a ble? ../ 9 : A Yes. 10 Yes. Now, Doctor, what is the range of exposure 11 that you consider negligible? That is, wouldencompass your 12 low risk people? And what's the range of exposure that you 13 would consider not negligible? That is.significant and 14 would compose your high risk people? IS A That is in the document that you have. And the 16 criteria that we used were, I believe, people that lived, I 17 think it was, two years in-- IB Now, Doctor, I want to know the level of dioxin 19 contaminant that you considered in the high risk group and go the level of contaminant that you considered in the low risk 21 group? . 22 A The area where these people lived had spotty 23 contamination; it wasn't uniform. And the people that were 24 living or in close proximity in areas that had 200 parts per 20 1 billion*-- I guess the cutoff was really 20 parts per billion, s but than had levels up to almost 1 part par million in the 3 soil were the people that were in the high risk group. And 4 they would have had to live there for a period of time in S order to qualify for the high risk group. And they would 6 have had to be gardening and have relatively intimate 7 contact with the soil. S All right. If I understand you correctly, than, 9 your high risk group consisted of people that lived in areas 10 that were known to be contaminated of dioxin or worked or 11 had extensive soil activity in areas that were known to be 12 contaminated with levels from 20 parts per billion up to 1 13 part per million? 14 A Yes. IS And your low risk group, what? Your low risk group IB would be anything under 20 parts per billion? 17 A These were people where there actually was no IB contamination and they had no intimate contact with soil, 19 but they might have walked across the street or they might eo have-- in other words, they were in the general environment, 21 but they had no intimate contact as far as we could 22 establish with such contaminated soil. 23 Q Well, they would have been living in areas that 24 could indeed be contaminated with less than 20 parts par . 21 1 billion and have activity in an area that's contaminated 2 '- with lass than 20 parts per billion of TCDO; isn't that 3 correct?'' 4 A No. 5 Q .... No?". 6 ft We took people that didn't have that. We were just 7 careful to call them a low risk group, because ua are still 8 trying to establish their--- 9 Q Doctor, you are talking in generalities, and I 'm 10 trying to get specific. These people that lived in Times 11 Beach, part of whom ware in your low risk group-- now, in the 12 parts of Times Beach that they lived in, did they live in 13 areas that were contaminated with less than 20 parte par 14 billion? Did you select any of your low risk group from 15 people who lived in a section of Times Beach that was 16 contaminated with greater than 20 parts per billion, or were 17 they-- all the ones that were from Times Beach-- -were they all 18 from a part of Times Beach that was contaminated with less 19 than 20 parts per billion? ' SO ft As far as I recall, they should not have had any 21 intimate contact with soil that was contaminated above 1 23 part per billion. That was my recollection. 23 Q Doctor, I didn't say intimate contact With soil in 24 my question; I said lived in the section that was contami , 22 1 nated. Are you tailing me that soma of the loui risk people s could live in the section of Times Beach that's contaminated 3 From 20 parts per billion to one part per million, but if 4 they did not have intimate contact with the soil they were 5 not considered high risk and thus could be in the low risk 6 group? 7 A They would have lived in areas that had less than 1 B part per billion, 9 Q In areas in Times Beach that had less than 1 part 10 per billion? 11 A Yes. 12 G Then your phrase ''intimate contact" really didn't 13 mean anything, did it, "intimate contact with the soil"? 14 A In order to assure more-- 15 Could you answer that question? Did the phrase IS that you used, "intimate contact with the soil", to describe 17 your high risk people; did it mean anything? 18 A Yes. 19 Q All right. Did you select people that lived in 20 Times Beach in areas that were indeed contaminated with 80 21 parts par billion or greater but where they had no history 22 of intimate contact with the soil or frequent working with 23 the soil or anything of that sort? 24 A Not for the high risk group. 23 1 Q No, I meant for the low risk group? 's A- No. 3 G How many of your low risk group were actually from 4 Times Beach? s A I don't exactly know the number; we would have to 5 get that from Missouri. 7 Q Well, we've already established that. All of the B people from Times Beach, now, whether they lived in the-- 9 strike that. Were there some streets in Times Beach that 10 were sprayed with this contaminated oil and other streets of 11 Times Beach that were not sprayed with it? is A Yes. 13 Q And you could use*-- or did you use in your low risk 14 group people who lived on streets not sprayed with the IS contaminated oil? 16 '' A Yes.. 17 M a 'am; is that correct? 10 A As far as I know, but-- 19 'Yes. SO A But to make sura, we would have to contact Mis21 souri 22 Q But, these people then in that lew risk group that 23 lived on streets not sprayed with the oil could quite easily 24 have and indead would have access to the streets that were 24 1 prayed with the contaminataci oil; correct, m a 'am? 5 A Yea. ;3, Q And they could drive on those straats or uialk on 4 those treats, and dust on those streets mould blow to them S and vapors From those streets could blom to them as mall; 6 correct, ma'am? 7 A No; it doesn't volatilize. B Q I 'm sorry? '3 A TCDO doesn't really evaporate. ib Q Doctor, that's another side issue. Ue have plenty li oF evidence in this case that it does. Ule've got morn 12 testimony From Monsanto employees that it does. And ms have 13 statements From others that it does. W e 've got lots oF-- 14 Monsanto has put on lots oF testimony on that point already; is I don't mant to argue. But, assume iF you mill, that this IS does evaporate, that it does volatiliza. Would you assume 17 that, .ma'am? 18 A Okay. 19 Q And Just insight, you are Familiar with the work oF 20 Nash and Beall; aren't you? 21 A I'm sorry? 22 You are Familiar with the works oF Nash and Beall; 23 aren't you, ma'am? 24 A Yes. 1 Q And they did Find that TCDD in the air in their '2 studies; did they not, m a 'am? ,3`. A That was never a published and a reviewed article. 4 Q It was published and a peer reviewed article. Are 5 you not familiar with it? 6 A I didn't see the peer reviewed article, no. 7 Q Doctor, back to my point anyway. The point is that 9 people that lived on the noncontaminated streets of Times 9 Beach had exposure and would use the contaminated streets of 10 Times Beach; would they not? 11 A Yes. 12 Q And they would-- might visit back and Forth, back 13 yards from one house with a noncontaminated steet might butt right up against the back yard of another house on a contam 15 inated street; correct? 16 A I'm not absolutely sure, but it's possible. 17 Q And your low risk group then had-- was it their 18 residences that had soil with less than 1 part per billion 19 of TCDD in it? 20 A Yes. I mean, tha outside of the house; not the 21 inside. 22 Q So, you would take people and did include people in 23 your low risk group who lived in areas where the contamina 24 tion was 900 parts per trillion or less? 25 1 A No, I didn't say that. '2/ Well, you said you excluded anybody in the group 3 with 1 part per billion; did you not? 4 A Our analysis, at least for some of the contract 5 laboratories, the limit of detection for TCDD in soil was 6 around 100 parts per trillion. So, there could have been 7 nothing or there could have been something below 100 parts 8 per trillion in some cases. I wouldn't know. 9 Q Doctor, I thought you told us that the low risk 10 group included only those people who lived in areas that 11 were contaminated with 100 parts per billion of TCDD or 12 less? 13 A The only reason I said that was because of the way 14 the chemical analysis was set up. 15 Q Doctor, is what you are saying is that your low IS risk people included people who livBd in residences or lots 17 that could be contaminated with dioxin up to 100 parts per 18 billion? 19 A Or there could be nothing. 20 Q Or there could be nothing? 21 A Right. 22 0 Is that correct that they could have lived in 23 residences where they had up to 1 part per billion of TCDD 24 contamination? 1 A UIb were only quantitating the 1 part par billion 2 and slightly below that, and then beyond that, although on 3'; a qualitative base we would be able to say , "Welly there 4 really Wasn't any TCDD" we made no effort to quantitate it, 5 Could you answer the question that I asked you? 6 A I can't, only what I told you. : 7 Q Doctor, I submit that you can. B M R . CARR; And would you read the question to 9 ...'.her? 10 CThe previous question was read back by the court 11 reporter, as requested.) 12 A Because of the scientific limitations, I cannot-- 13 Q Could you answer that question, m a 'am? 14 A I can't really answer it. I can't give you tech~ 15 nical information. 15 Q Did you hear the word ''could" in that question? 17 A That's speculation. 10 fly question is: People you selected from the so19 called noncontaminated areas of the TCDD to include in your 20 low risk group could have included people who had homes 21 that were-- and areas around the homes-- that were contami 22 nated up to 1 part per billion of TCDD; isn't that correct, 23 'm a 'am? 24 A That's mere speculation, and I don't speculate; SB 1 I'm a scientist. E Did you hear when I said the word-- Dr. Kimbrough, 3 the word "could" is in there. 4 A Yes. But, I don't want to speculate, because I 'm 5 a scientist. 6 Q Well, Doctor, you are required to answer that 7 question when I ask it. 8 ft I can't . 9 I 'm sorry? 10 A I cannot. 11 MR. CARR: Your Honor, would you direct the IB witness to answer the question? 13 THE COURT: Doctor, you have to answer the 14 question. It's a proper question. 15 THE WITNESS: IF I can't give an answer that is 16 correct, then why should I answer it? 17 THE COURT: You understand the question; the 18 question is a proper question to ask of an expert witness IS such as yourself in a court of law in the state of Illi 20 nois; therefore, you have to answer it. El A N o . EE Q Doctor, do you have any-- you did select people S3 that were from Times Beach; did you not, m a 'am? 4 A Yes. 29 1 Q And there were variations of contamination in 2 Times Beach; wasn't there, ma'am? 3 A Yes. 4 And you identified those areas that had contami 5 nation of 1 part per billion or above; did you not, m a 'am? B A Yes. 7 Q And you did not identify any area of being contam B inated other than 1 part per billion or above; did you not? 9 A Qualitatively. 10 Q Qualitative what? That's not an answer. 11 A That was what I was trying to explain earlier. 12 Q Doctor, could you-- do you understand what I 'm 13 asking you? Is it not a fact-- maybe I can put it more 14 plainly-- is it not a fact that you identified areas of 15 Times Beach that was contaminated from 20 parts per billion 16 to 1 part per million? 17 A Yes. IB Q And did you then identify parts of Times Beach 19 that were contaminated from 1 part per billion to 20 parts 20 per billion? 21 A Yes. You always say ''you" . All of this work was 2? really done by the Environmental Protection Agency. 23 Q Well, I mean by those participants in the study. 24 The values that you used in the study, whether you did the 30 1 identifying or not. I 'm not suggesting that you personally 2 or you at CDC did; my question said the values that you 3 all used; all right? 4 A Yes.' 5 Q And I can understand your problem with that 6 question. There uias identified in Times Beach-- whether it 7 was by you, or by God, or by EPA, or by whoever-- the areas 8 of Times Beach were identified by level of contamination; 3 were they not, m a 'am? 10 ,A Yes. 11 Q And there was identified those areas of Times 12 Beach that had contamination from 20 parts per billion to 13 1 part per million; is not that correct, m a 'am? 14 A Yes. 15 Q And you selected from those areas, as you have IB previously stated, high risk participants; did you not, 17 ma'am? ' 18 A Yes. 19 Q Now, there were areas of Times Beach that were 20 identified as having contamination of less than 20 parts 2l per billion and down to 1 part per billion; isn't that 22 correct, m a 'am? 23 A And down to nothing. 24 Q Could you answer the question, first of all, as I 31 1 gave it to you? s A Yes. 3 And did you salact From the areas that were 4 contaminated, or is it possible that any of the loui risk ;5 participants cams from the areas that mere identified as 6 having contamination from 20 parts per billion douin to 1 7 part per billion? 8 A As far as I know, We did not try to take anybody 9 out of that middle group. 10 Q That isn't what I asked you. I did not ask you 11 what you tried to do. What I'm asking you-- because I 12 understand it was not your intention to go by this kind of 13 parameter for contamination-- what I 'm asking you, m a 'am, is 14 it possible that some of your low risk participants were 15 taken from the group that lived in areas contaminated with IB 20 parts per billion down to 1 part per billion of TCOD? 17 A As far as I know, it's not possible. 18 Q All right. Now, did you also-- or was there 19 identified at Times Beach parts of the community that had 20 contamination of 1 part per billion and below, down to 21 nothing? 22 A Most of those analysis were reported as negative 23 or trace or-- and so, I don't really know. 24 Q Well, the word trace means there's something